RBG v BKS

Case [2021] QDC 234

DISTRICT COURT OF QUEENSLAND

CITATION:

RBG v BKS & Anor [2021] QDC 234
PARTIES:

RBG
(appellant)
v
BKS
(first respondent)
QUEENSLAND POLICE SERVICES

(second respondent)

FILE NO:

BD1509/2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 September 2021

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

19 January 2021

JUDGE:

Sheridan DCJ

ORDER:

1.   Appeal dismissed.

2.   The appellant pay the first respondent’s costs of the appeal fixed in the amount of $6,000.00.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) the trial Magistrate made a domestic violence protection order against the appellant for the benefit of the first respondent – where the appellant appeals against the decision to grant a protection order – whether Magistrate was in error

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 8, s 11, s 37, s 142, s 164, s 167, s 168, s 169

Uniform Civil Procedure Rules 1999 (Qld), r 766(1), r 681, r 687, r 771, r 785, sch 1, r 1, r 2
CASES:

Allesch v Maunz (2000) 203 CLR 172, [2000] HCA 40, cited
Fox v Percy (2003) 214 CLR 118, [2003] HCA 22, cited
GKE V EUT [2014] QDC 248, cited
Goodwin v O’Driscoll & Anor [2008] QCA 43, cited
Harrison & Anor v Schipp (2002) NSWLR 738, cited
Mbuzi v Torcetti [2008] QCA 231, cited
McDonald v Queensland Police Service [2018] 2 Qd R 612, cited
Nine Films & Television Pty Limited v Ninox Television Limited (2006) FCA 1046, cited
Rowe v Kemper [2009] 1 Qd R 247, cited
White v Commissioner of Police [2014] QCA 121, cited
COUNSEL:

Appellant self-represented
R Lake for the first respondent
M Vassilakos for the second respondent

SOLICITORS:

Page Provan for the first respondent
Commissioner of Qld Police for the second respondent

Introduction

  1. The appellant appeals against the decision of a magistrate made on 27 April 2020.

  2. By the decision, pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) the court made a domestic violence protection order against the appellant for the benefit of the first respondent and the niece of both the first respondent and the appellant was named as a protected person.

  3. As in the proceedings below, the appellant was self-represented and the first respondent was represented by counsel.  The second respondent was represented by counsel at the appeal and joined the proceedings pursuant to s 167 of the DV Act which gives the police commissioner the right to appear and be heard before the appellate court on an appeal under this division.

    Background

  4. The appellant and the first respondent are siblings.  On 21 October 2019, the first respondent applied for a domestic violence…

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AGLC
RBG v BKS [2021] QDC 234
Case
[2021] QDC 234
Decision Date

CaseChat Overview and Summary

The appeal in RBG v BKS was brought by the appellant, who was self-represented, against a domestic violence protection order granted by the trial Magistrate to the first respondent. The appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld). The first respondent, who was represented by counsel at the trial, sought the domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). The second respondent, who was represented by counsel at the appeal, was joined in the proceedings pursuant to s 167 of the Act. The appeal challenged the decision of the trial Magistrate to grant the domestic violence protection order against the appellant.

The appeal raised several legal issues, including whether the Magistrate was in error in accepting the evidence of the niece who did not testify at the hearing. The appellant argued that the Magistrate should not have accepted the niece's affidavit as evidence since she did not testify and was not cross-examined. The court considered that the Magistrate was justified in relying on the niece's affidavit as the appellant was afforded the opportunity to cross-examine her but chose not to do so. The court found that there was no denial of procedural fairness and no consequential error of law. The court also considered whether the Magistrate was in error in finding that an act of domestic violence had occurred, and found that the Magistrate was justified in making the findings.

The court found that the appellant's appeal was without merit and dismissed the appeal. The court also ordered the appellant to pay the first respondent's costs of the appeal in the amount of $6,000.00.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the first respondent’s costs of the appeal fixed in the amount of $6,000.00.

Background

Background to the litigation

As in the proceedings below, the appellant was self-represented and the first respondent was represented by counsel. The second respondent was represented by counsel at the appeal and joined the proceedings pursuant to s 167 of the DV Act which gives the police commissioner the right to appear and be heard before the appellate court on an appeal under this division.Background The appellant and the first respondent are siblings. On 21 October 2019, the first respondent applied for a domestic violence protection order protecting herself and as named persons, their niece, sister, and their sister’s husband. At the trial, the Magistrate was informed that neither the sister nor her husband (the niece’s parents) wished to be named in any continuing order. The principal grounds detailed in the first respondent’s application for the protection order were verbal abuse from the appellant by text message, email and telephone calls, physical abuse at their father’s funeral on 21 June 2019 and at the nursing home where their mother resided on 8 October 2019, physical damage caused by the appellant to her motor vehicle on or about 9 October 2019 and the firing of gun shots near her home on the day after their mother’s funeral. The application was heard and determined on 17 March 2020 and the Magistrates decision given on 27 April 2020. Affidavits were filed by the first respondent and their niece; records were subpoenaed from the nursing home and medical practitioners. With one exception, it does not appear that the subpoenaed material was relied upon at the trial. Affidavits were filed by the appellant and the statutory declaration of one witness was relied upon by the appellant. Each of the appellant and the first respondent, and the one witness the appellant called were cross examined. The niece was not cross examined. The Magistrate made a protection order naming the first respondent as the aggrieved and the niece as a named protected person against the appellant. The terms of the protection order were the same as the temporary protection order made on 22 October 2019, with the protection order made to continue until 26 April 2025. The Magistrate’s Decision The Magistrate summarised the case against the appellant as one where over the years the relationship between the parties had declined. This deterioration was described as concerning the parties’ parents and involved a range of issues concerning real property, the care of the parents and money of the parents. Both parents are now deceased and were deceased at the time of the hearing. The Magistrate commented that the “emotions relating to these issues still run very deep and cause pain and hurt to both parties.” The Magistrate went through the background to the declining relationship. The Magistrate referred to the evidence of the first respondent who said the appellant has been residing with their parents as the primary carer but that at a certain point the first respondent had formed the view that their mother required more care than the appellant could provide. The Magistrate referred to a series of falls by the mother at home and referred to a dispute that arose between the appellant and the first respondent about moving the mother from the upstairs bedroom to the downstairs living room. The Magistrate referred to a written agreement entered between the first respondent and the appellant in relation to the appellant’s continuing care of the parents at their home. The agreement included a requirement that the parents be moved downstairs from the upstairs bedroom which was described as a precondition to the release of their mother from St Vincent’s Hospital in January 2018.

Evidence

Evidence Before The Court

The findings of tenderness on both sides of the front of her neck are consistent with the appellant having placed both hands, rather than one hand, around the first respondent’s neck.Evidence of Niece In her affidavit, the niece supports the appellant having grabbed the first respondent’s neck with both hands and supports the first respondent in the verbal exchange which occurred between the appellant and the first respondent. The appellant submitted that the Magistrate should not have accepted the evidence of the niece when the niece did not testify and was not cross examined. The niece was to give evidence via phone at the hearing. In his outline and in oral submissions, the appellant referred to the niece having refused to answer the call. The transcript of the hearing does not support that statement. Rather, it appears there was some difficulty in calling the niece, and later the appellant was afforded the opportunity to cross examine but chose not to do so. The transcript reveals that the Magistrate asked the appellant if he wished to cross examine and he indicated he did not. Prior to moving on, without the niece being cross examined, this exchange occurred between the Magistrate and the appellant: “Bench:Do you want to cross examine [the protected person]?Respondent: No, I don’t, your Honour.Bench:You don’t.Respondent: No. I’ve addressed the points in my affidavit.”[4][4]Transcript 17 March 2020 at 1-54, line 7-13. The appellant again stated at the end of the hearing before the Magistrate, that he had no intention of cross examining the protected person, stating, “I wasn’t going to cross examine her, anyway.”[5][5]Transcript 17 March 2020 at 1-90, line 1. In oral submissions on the appeal, the appellant nevertheless expressed the view that, before the Magistrate should have accepted the affidavit of the niece as evidence, counsel for the first respondent was required to cross examine her. The niece was being called by the first respondent, in support of her application for the making of the domestic violence order. There was accordingly no capacity for her to be cross-examined by the first respondent, nor would any useful purpose be served by her being called unless the appellant sought to do so. The Magistrate was perfectly entitled to rely upon her affidavit. The law requires that the appellant be afforded the opportunity to cross examine,[6] and the transcript makes it clear that the appellant was afforded the opportunity which he chose to waive. In those circumstances, there is no denial of procedural fairness and no consequential error of law.[7][6]Allesch v Maunz (2000) 203 CLR 172, 185 at [38] per Kirby J.[7]Kirby v Dental Council of NSW [2020] NSWCA 91 at [44] per Brereton JA; Clements v Independent Indigenous Advisory Committee (2003) 131 FCAFC 28 at [8] per Gray ACJ and North J. The Magistrate was justified in making the findings made in relation to the incident at the nursing home and in finding that an act of domestic violence had occurred. Damage to Car

Decision

Reasons for decision

The Magistrate made a protection order naming the first respondent as the aggrieved and the niece as a named protected person against the appellant. The terms of the protection order were the same as the temporary protection order made on 22 October 2019, with the protection order made to continue until 26 April 2025. The Magistrate’s Decision The Magistrate summarised the case against the appellant as one where over the years the relationship between the parties had declined. This deterioration was described as concerning the parties’ parents and involved a range of issues concerning real property, the care of the parents and money of the parents. Both parents are now deceased and were deceased at the time of the hearing. The Magistrate commented that the “emotions relating to these issues still run very deep and cause pain and hurt to both parties.” The Magistrate went through the background to the declining relationship. The Magistrate referred to the evidence of the first respondent who said the appellant has been residing with their parents as the primary carer but that at a certain point the first respondent had formed the view that their mother required more care than the appellant could provide. The Magistrate referred to a series of falls by the mother at home and referred to a dispute that arose between the appellant and the first respondent about moving the mother from the upstairs bedroom to the downstairs living room. The Magistrate referred to a written agreement entered between the first respondent and the appellant in relation to the appellant’s continuing care of the parents at their home. The agreement included a requirement that the parents be moved downstairs from the upstairs bedroom which was described as a precondition to the release of their mother from St Vincent’s Hospital in January 2018. The Magistrate referred to the continuing dispute about the care of the mother and the first respondent having moved the mother into a nursing home without the appellant’s prior knowledge or agreement. The Magistrate went through each of the alleged incidents as particularised in the application for a domestic violence order. The principal ground for the first respondent’s application was that the appellant had been verbally abusive to her by telephone and text messages and that the verbal abuse had escalated to physical abuse. The Magistrate referred in particular to the evidence of the first respondent of the appellant making a verbal threat to kill her while grabbing her around the neck with both hands and of the appellant damaging her motor vehicle in October 2019. The Magistrate referred to the evidence of the appellant who said that the root cause of his feelings towards the first respondent stemmed from his belief that she had caused the death of their mother as she had deprived their mother of her liberty by placing her in a nursing home which he says accelerated her death. The Magistrate said that the appellant did not dispute that he had sent the first respondent messages where he had said “Shut up, you bitch” and had called her a “munt”, nor did he dispute having grabbed the first respondent around the neck at their mother’s nursing home; though he denied using both hands and denied the strangle hold having been broken by their niece.

Ratio Decidendi

Legal Principle Established

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