Souben v Marson (Ruling)
[2024] VCC 1638
•23 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-24-0717
| PAUL GILES JACQUES MARIE SOUBEN | Appellant |
| v | |
| STEPHEN EWIN KAYNE and MISHKA MARSON | First Respondent Second Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2024 | |
DATE OF RULING: | 23 October 2024 | |
CASE MAY BE CITED AS: | Souben v Marson (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1638 | |
RULING
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Subject:PERSONAL SAFETY INTERVENTION ORDER APPEAL
Catchwords: Stalking – intent – self-represented litigant – failure to afford procedural fairness – autism and language barriers – no material error
Legislation Cited: Charter of Human Rights and Responsibilities Act 2006 (Vic); Evidence Act 2008 (Vic) ss 41, 165; Personal Safety Intervention Orders Act 2010 (Vic) ss 10, 47, 61, 96.
Cases Cited:Tomasevic v Travaglini [2007] VSC 337; House v The King (1936) 55 CLR 499; Lee v Lee (2019) 266 CLR 129; AAA v County Court of Victoria & Ors [2023] VSC 13; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; Chang v Neill and Others (2019) 62 VR 174, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Roberts v Harkness [2018] VSCA 215
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person | |
| For the Respondents | Mr R Elishapour | Solicitors for Victoria Police |
HER HONOUR:
Introduction
1For a brief period in June and July 2023, Mr Paul Souben and Ms Mishka Marson worked together at a bakery in Northcote.
2When Mr Souben’s employment was terminated, he asked Ms Marson to contact him so they could continue their friendship. Ms Marson did not do this. That’s when Mr Souben began sending her messages, attending at her place of work, and sending his former partner to speak to her.
3In October 2023, Ms Marson approached police with concerns about Mr Souben’s behaviour. Police applied for an intervention order on her behalf.
4The application was heard over two days in May 2024 by Magistrate Malcolm Thomas in the Magistrates Court at Melbourne.[1]
[1] Joint Court Book (“CB”), filed 8 October 2024. The Transcript refers to Magistrate G Thomas at CB 93.
This is likely the Magistrate who heard the call over. The application was heard before Magistrate Malcolm Thomas whose name appears on the certified extract.
5The Magistrate found that Mr Souben had taken a liking to Ms Marson, had proceeded to send her a number of very lengthy messages and approach her on a number of occasions after her work. At some point in this interaction, Ms Marson told Mr Souben she did not wish to continue having any contact with him. However, he did not accept this.
6After hearing evidence from a number of witnesses including Mr Souben, Magistrate Thomas make a final intervention order (“IVO”) under the Personal Safety Intervention Orders Act 2010 (Vic) (“PSIO Act”) for the protection of Ms Marson.
7The IVO operates between 22 May 2024 and 22 May 2029.
8Mr Souben appeals the Magistrate’s decision on the basis that the Magistrate made errors of law, and made various discretionary and factual errors. At the heart of the appeal however, is Mr Souben’s dissatisfaction with the Magistrate’s decision.
9A preliminary hearing for his appeal was held before me on 14 October 2024.
10Prior to the hearing, Mr Souben filed a significant number of documents which did not strictly relate to the appeal, but which documents show his strong dissatisfaction with Victoria Police, the Magistrate and various other people involved in the case.[2]
[2]The documents included over 200 pages of long emails complaining about the conduct of Victoria Police, asking for a full investigation into the circumstances of his work at the bakery, asking for police to come to his home and face him, complaints about police and to the DPP (state and federal) complaints to IBAC and the Judicial Complaints Commission about Magistrate Thomas, complaints to the Minister for Police and to the Legal Services Board complaints to the Human Rights Commission, complaints about the Prosecutions Unit, complaints about the Magistrates Court’s Complaints Department and letters from the Magistrates Court regarding the missing 20 minutes of the transcript and a complaint against a lawyer at the Fitzroy Legal service (for a list see CB 408)
11In his Form B ‘submissions for the preliminary hearing’, Mr Souben objected to the Magistrate’s decision on the following basis:
“Section 61 of the [PSIO Act] requires the court to objectively assess the nature and seriousness of the respondent’s behaviour and whether it is reasonable for the protected person to fear for their safety. The protected person explicitly described my messages as ‘lovely’ and ‘beautiful’, admitting that they bore no ‘bad intentions’. This acknowledgement fundamentally negates any reasonable basis for fear or threat by ignoring this evidence the Magistrate not only misapplied the statute but failed to meet the necessary threshold to justify an intervention order”[3]
(Emphasis added)
…
[3]IVO Form B dated 2 October 2024 at CB 233
“… The Magistrate abandoned the requirement [to make an objective assessment of whether a genuine threat exists] relying instead on subjective statements and ignoring the protected person’s own words that clearly negate any suggestion of fear or threat”.[4]
[4]Ibid at CB 235
12During the preliminary hearing, it became apparent that Mr Souben was extremely concerned that the IVO proceeding had irreparably damaged his reputation and destroyed his life because it suggested he had been a threating person and this would have an impact on his Australian visa status.
13In the circumstances, I consider it important to Mr Souben that I make certain introductory comments before I commence my analysis of the issues raised in the preliminary hearing.
Preliminary comments
14Mr Souben is not legally trained. He was self-represented before the Magistrate and on the preliminary hearing in this Court. He was emotionally preoccupied with the case and the consequences of the case as he perceived them to be. This was apparent in listening to the audio recording of the proceeding in the Magistrates Court and in observing him during the preliminary hearing.
15Mr Souben is French. His English is reasonable for every day conversations, but not at a high enough level that he can be taken to understand legal terms and phrases. He speaks with an accent, and occasionally quite fast. This was noticed by the Magistrate who had difficulty following and understanding what Mr Souben was trying to communicate and repeatedly asked him to slow down.
16Mr Souben has a disorder on the same spectrum as Autism. He is also affected by a disorder he referred to as Tetany, which he said makes his muscles contract and affects his thinking and ability to communicate. He was extremely emotional and anxious about what he perceived might happen to him as a result of the IVO. These matters may also have affected his perception of events and his ability to participate meaningfully in the proceeding before the Magistrate.
17I consider Mr Souben did not intend to behave inappropriately to Ms Marson.
18It may be that in the beginning of their interaction, Ms Marson conducted herself in a way which led Mr Souben to believe there was a chance of a relationship between them. In pursuit of this possibility, Mr Souben sent long messages to her, which eventually made her feel uncomfortable and she wished no longer to receive them.
19His messages to her were polite, he considered she was a “rare, amazing and beautiful personality”[5] and he spoke of his deep affection for her. The messages show he was prepared to wait for Ms Marson to decide when she wanted a relationship with him.
[5]CB 59
20Ultimately, Ms Marson told Ms Souben she did not want a relationship with him, or to see him after work or to receive his messages.
21Unhappily, Mr Souben was unable to accept Ms Marson’s position and continued sending messages.[6]
[6]CB 66 and 72
22I consider Mr Souben did not intend to cause her Ms Marson any harm. However he did not stop his advances, even enlisting the help of his former girlfriend to persuade Mr Mason to meet with him. A very long letter was provided by his former girlfriend, to Ms Marson in support of this aim and the conversation between the two women was secretly recorded and played back to Mr Souben.[7] The letter caused Ms Marson to become extremely uncomfortable and worried about what Mr Souben might do.
[7]Transcript (“T”) 43 and 107-108
23Mr Souben considered Ms Marson had been influenced by others and if only he could speak to her face to face, everything would be resolved. He wanted a personal explanation from her, for what he perceived was her change of position.
24Mr Souben has failed to appreciate the effect of his unwanted overtures on Ms Marson. Possible reasons for this might be that is in his mind, none of his communications contained any threats and his belief Ms Marson had been influenced by others.[8]
[8]One of these people is Ms Marson’s employer, the person who terminated Mr Souben’s employment.
25As set out in Mr Souben’s submission for the preliminary hearing, he perceived that threatening or violent conduct was the only basis for the making of an intervention order.
26The Magistrate found that Mr Souben been stalking Ms Marson. He did not make any findings that Mr Souben had made threats or had ‘bad intentions’. The stalking was constituted by messages, requests to meet, sending his former partner to provide a long letter beseeching Ms Marson to meet or be in a relationship with Mr Souben or explaining his behaviour to her.
27The letter, provided by the former partner to Ms Marson, sets out that Mr Souben had been:
“destroyed, emotionally, physically, don’t eat, don’t sleep, can’t work meeting person like you, who I know more than likes him and showed interest… If WHAT began in the bakery with ease, happiness, lightness, smile, butterflies in the bellies, could simply just CONTINUE without any lies of jealous people….”[9]
[9]CB 84
28I consider the Magistrate made no errors accepting Ms Marson’s evidence that she was scared and apprehensive as a result of the repeated contact.
29In my view, the Magistrate made no errors in finding that Mr Souben ought to have understood that his conduct would be likely to cause her apprehension.[10]
[10]T131-132
30The IVO was necessary to protect Ms Marson from unwanted contact by Mr Souben. That conduct met the definition of “stalking” within the meaning of s10 of the PSIO Act, even if Mr Souben never consciously intended for it to have that result, even if he had not made threats, even if he had no malice or ‘bad intentions’.
31For reasons I will shortly outline, Mr Souben has not established any basis for interfering with Magistrate’s decision.
Background to the current proceeding
32On 11 October 2023, a member of the police force applied for an intervention order for the protection of Ms Marson. The application provided the following reasons why an intervention order was needed:
“THE PP AND THE RSP IN THIS MATTER ARE FORMER COLLEAGUES WHO BOTH WORKED TOGETHER AT A BAKERY IN NORTHCOTE FOR APPROXIMATELY ONE MONTH. THIS IS THE FIRST RECORDED INCIDENT BETWEEN THE PARTIES, AND THERE ARE NO CURRENT OR PREVIOUS IVOS. IN JUNE 2023, THE RESP CAME INTO THE PP’S WORK AND ASKED HER IF THEY WERE HIRING. THE PP THEN REFERRED THE RESP TO HER BOSS, AND THE RESP WAS HIRED AND STARTING WORKING WITH THE PP A WEEK LATER. WHILST WORKING WITH THE PP THE RESP WOULD CONTINUALLY ACT INAPPROPRIATE AND FLIRTATIOUS TOWARDS HER - CONSTANTLY CALLING HER BEAUTIFUL AND ASKING HER OVER FOR DINNER/OUT FOR DRINKS ETC. AT THE TIME, THE PP DIDN’T THINK MUCH OF IT AND WOULD JUST POLITELY DISMISS THE RESP. IN JULY 2023, THE RESP QUIT WORKING AT THE BAKERY AND TOLD THE PP TO CALL HIM SOME TIME TO CATCH UP WHICH SHE DID NOT. (SIC) ON 24/7/2023 THE RESP ATTENDED THE WORK AND ASKED TO SPEAK WITH HER. THE RESP THEN RANTED AT THE PP FOR OVER AN HOUR, DURING WHICH HE CONTINUALLY ASKED HER OUT. THE PP ONLY REMAINED AND SPOKE WITH THE RESP DUE TO BEING CONCERNED ABOUT HIS ERRATIC AND STRESSED STATE. FOLLOWING THIS INCIDENT, THE RESP SENT THE PP A FRIEND REQUEST ON FACEBOOK WHICH SHE DECLINED. THE RESP THEN PROCEEDED TO SEND MULTIPLE LONG RANTING MESSAGES TO THE PP WHICH SHE DID NOT REPLY TO.”[11]
[11]CB 45-46
33On 12 October 2023, an interim IVO was made by the Magistrates Court. Mr Souben was not at court when the order was made. The Certified Extract of the Magistrates Court records that the matter was otherwise adjourned for hearing to 6 December 2023.[12]
[12]CB 48-49
34On 6 December 2023, the Certified Extract records that Mr Souben was present at the hearing and was represented by a lawyer, whose name appears on the extract as Ms Zahidee. The IVO application was adjourned to 7 February 2024.[13]
[13]CB 51
35Ultimately, a contested hearing was held before Magistrate Thomas on 21 May 2024.
Appeal by rehearing
36Pursuant to s 96 of the PSIO Act, the appeal is to be conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.
37This court does not have automatic power interfere with the Magistrate’s decision. First Mr Souben must demonstrate that the Magistrate made a factual, legal or discretionary error.[14]
[14]AAA v County Court of Victoria & Ors [2023] VSC 13 at paragraph [50]
38Not every error is sufficient to allow interference with the Magistrate’s decision. The error must be a material error.
39A material error is one which deprived Mr Souben of the opportunity of a successful outcome. Put another way, an error is material if without it, a different decision could have been made.[15]
[15]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at paragraph [45]; Chang v Neill and Others (2019) 62 VR 174
40A material error can also be a failure by the Magistrate to take into account a mandatory consideration. If such a consideration was in all the circumstances significant, then a failure to take it into account could have materially affected the decision that was made.[16]
[16]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
41If no material error is demonstrated, this Court has no power to interfere with the decision of the Magistrate, even if error has been established.
Mr Souben’s grounds of appeal
42Mr Souben filed a number of documents alleging numerous alternative grounds of appeal.
43In his Notice of Appeal dated 22 May 2024, Mr Souben relied on the following grounds of appeal:
“- Not agree with result.
- Shock about the behavior of the Magistrate who pass him time to humiliate me and put me down.
- Not agree that the Magistrate refuse to receive several evidences and let me express myself.
- Not agree that the Police lie under oath.
- Not agree that the Police refuse any contact with me during more than 7 months.
- Feel totally irrespect and humilate by the behavior of the court.
- Etc…”[17]
[17]CB 3
44In Mr Souben’s Statement of Grounds of Appeal (IVO Form A)[18] dated 5 July 2024, he outlined 29 different grounds of appeal or alleged errors made by Magistrate Thomas. They essentially fall into three categories.
[18]CB 5-7
45First – legal error on the basis of failure to accord procedural fairness to Mr Souben. There are various particulars of the error set out in a number of grounds as follows:
(a) Unfair treatment and lack of impartiality and sabotaging his defence (grounds 1, 9, 17);
(b) Being spoken to in a disrespectful manner and humiliated by the Magistrate (grounds 2, 3);
(c) being threatened with imprisonment (ground 4);
(d) failing to deal with alleged violations of his rights by police (ground 5);
(e) failure to disregard the provocative conduct of the “police prosecutor” (ground 6);
(f) failure to accommodate Mr Souben’s disability – a condition on the same spectrum as Autism (ground 22);
(g) knowingly putting Mr Souben’s health at risk or having no concern for his health (grounds 20, 21)
(h) failing to show compassion or empathy towards a person who is alone navigating the court system during a hard time in life (ground 23)
(i) being influenced by racism or sexism (ground 26)
46Second – discretionary error on the basis of acting on a wrong principle, allowing irrelevant matters to affect the decision, mistake of facts. There are various particulars of the error set out in a number of grounds as follows:
(a) failing to accept Mr Souben’s submission that police were lying or (ground 7);
(b) refusing to accept Mr Souben’s submission that Ms Marson was being manipulative and ignoring clear evidence indicating the involvement of another party (ground 18);
(c) rendering disproportionate judgements (ground 24);
(d) accepting accusations which did not exist and over-reactions based solely on lies (grounds 11, 12, 19);
(e) participating in a psychological mind game with the purpose of humiliating and destroying Mr Souben’s entire life (ground 27);
(f) failing to show concerns for the unfair and terrible repercussions that the decisions could have on Mr Souben’s entire life (ground 28);
(g) conducting the hearing in a manner marked by significant carelessness and lack of thoroughness amounting to negligence (ground 29).
47Third – factual error on the basis of failing to have regard to or misunderstanding a factual matter. There are various particulars of the error set out in a number of grounds as follows:
(a) accepting evidence and accusations which Mr Souben said did not exist (ground 11);
(b) making decisions on irrelevant topics (ground 13);
(c) accepting evidence of Ms Marson which Mr Souben argued was contradictory (ground 14);
(d) failing to “confront” Ms Marson with the alleged contradictions (ground 15);
(e) refusing to accept what Mr Souben submitted was the ‘reality that was plainly evident’ (ground 16);
(f) accusing Mr Souben of providing an edited version of a recording despite having requested only a portion of the recording on the first day (ground 25).
48In his submissions for preliminary hearing dated 2 October 2024, Mr Souben set out a number of other alleged legal errors and responded to the submissions made on behalf of Victoria Police.[19] The first 12 and last 20 paragraphs of that document appear to have been written by a lawyer or a person with legal training.
[19]CB 233
49The additional legal errors include:
(a) Error by the Magistrate in finding that Mr Souben’s behaviour had been threatening and that there was a reasonable basis for fear by Ms Marson;
(b) Error by the Magistrate in making a final order when the messages he sent her were “lovely” and “beautiful” and on any objective analysis, no genuine threat existed;
(c) Error by the Magistrate in construing the stalking provisions because the provisions required proof of actual intent to cause harm and apprehension but his actions were “rooted in addressing misunderstandings and seeking resolution, rather than any intent to cause fear”;[20]
(d) Failure to apply section 165 of the Evidence Act 2008 (unreliable evidence by witness in a civil proceeding) to the evidence of Ms Marson which was ‘riddled’ with contradictions, including her admission that her fear ‘was for no reason’;
(e) Failure to undertake an objective assessment whether a genuine threat exists;
(f) Ignoring Ms Marson’s evidence that the messages were ‘benign’;
(g) The Magistrate failed to scrutinise the alleged inconsistences in the evidence of Ms Marson such stating she was afraid but also acknowledging that her fear ‘was for no reason’;
(h) That there were 25 minutes of the “record” missing from day 2 which relates to Mr Souben’s “tetany crisis” during which he had to breathe in a plastic bag and control himself through cramps and spasms…..which proves his right were “raped” by police who blindly accepted the evidence of Ms Marson.
[20]CB 286
50There are various other alleged errors founded in the Charter of Human Rights and Responsibilities Act 2006 (Vic), which assert failure to provide a fair hearing. The procedural fairness ground adequately deals with the question of a fair hearing and as Mr Souben has established error under that ground, I have not considered these alleged errors.
51During the preliminary hearing, Mr Souben clarified his grounds for appeal. He added the following:
(a) the Magistrate provided no help to understand the court process and didn’t take care with me during the hearing, didn’t accommodate my health conditions (Autism Spectrum and Tetany)[21] and did not take care to find out about my condition;
(b) the Magistrate shouted at me, waved his hand at me (dismissively) and when I was speaking, the Magistrate held his head in his hand and looked down intending to make me think I was giving him a headache. He treated the witness Mishka with kindness and smiled at her but did not treat me the same way. This was racism and sexism in favour of an Australian woman against a foreign man;
(c) the Magistrate failed to address my complaints that the police prosecutor was provoking me by smiling and laughing at me;
(d) the Magistrate sabotaged my defence and allowed police to ruin my life and didn’t tell me who else I can call (as a witness).
(e) The Magistrate failed to request a full investigation into the bakery, require the police to call the bakery owner/manager and to call evidence about the workings of the bakery because things did not happen as police alleged.
[21]
The position of Victoria Police
52The Submissions for Preliminary hearing dated 19 September 2024[22] helpfully set out the relevant principles relating to legal, discretionary and factual error. Counsel on behalf of Victoria Police ably presented his case, made appropriate concessions and provided assistance to the court.
[22]CB 35
53In essence, Victoria Police submitted that:
(a) in a civil application such as the one before the Magistrate, the relevant standard is the civil standard - balance of probabilities and the Magistrate made findings in accordance with this standard;
(b) a decision on which witnesses would be called on the application is the decision of the applicant not the Magistrate;
(c) under the PSIO Act, the Magistrates’ Court could inform itself in any way it saw fit, taking into account all the evidence including the oral evidence, documentary evidence such as the messages, the letter and the recording. The court had power to make a IVO without the need for further investigations;
(d) the task of the court on an appeal of this kind is to take a fair reading of the transcript not with an eye keenly attuned to error;
(e) Mr Souben’s grounds were not made out as they were not supported by the contents of the transcript;
(f) Mr Souben had not informed the Magistrate of his medical conditions at the commencement of the hearing;
(g) the Magistrate was entitled to control the court proceedings and prevent Mr Souben from interrupting;
(h) there was evidence upon which the Magistrate could make the IVO and at law, there was no requirement to consider the “effect” of the IVO on Mr Souben;
(i) Mr Souben was preoccupied with Ms Marson and the Magistrate was aware of this, there was no failure by the Magistrate to take into account Mr Souben’s circumstances.[23]
[23]CB 36-39
Principles
Legal error – failure to provide procedural fairness
54Every court is obliged to ensure a fair hearing for each of the parties before it.
55Procedural fairness is the legal requirement to avoid injustice. It may include a range of matters but fundamentally, it requires a fair hearing and giving each party a reasonable opportunity to present their case.
56It also requires the court to enable each party to be informed of the case to be advanced by the opposing party and a reasonable opportunity to respond to that.
57What is “reasonable” in the circumstances will depend upon the individual circumstances of the case.[24] Matters to be taken into account in determining what fairness requires in each case include:
[24] Roberts v Harkness [2018] VSCA 215 at paragraphs [46]-[50]
(a) The nature of the decision to be made;
(b) The nature and complexity of the issues in dispute;
(c) The nature and complexity of the submissions each party wishes to advance;
(d) The significance to the party of the decision;
(e) the competing demands on the time and resources of the court or tribunal[25].
[25] Ibid at paragraph [49]
58Procedural Fairness also requires impartiality on the part of the Magistrate and the provision of an opportunity to test and respond to the opposing party’s evidence.
59Where one or both of the parties are unrepresented, the question to be asked, is ‘what was required to give the unrepresented person a reasonable opportunity to advance his/her case and to be informed of and respond of the opposing party’s case?’
60The court will have to assess the capability of the unrepresented person to formulate and communicate the case he wishes to present.[26]
[26] Ibid at paragraphs [53]-[54]
Unrepresented litigant
61In Tomasevic v Travaglini,[27] Bell J considered the type of assistance which should be provided by a judge to a litigant in person. That assistance includes the following:
[27] [2007] VSC 337
“(1) A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
(2) A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.
(3) A judge should explain to the litigant in person any procedures relevant to the litigation.
(4) A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
(5) If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
(6) A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
(7) If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
(8) A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 121 ALR 148 at 150.
(9) Where the interests of justice and the circumstances of the case require it, a judge may:
draw attention to the law applied by the court in determining issues before it;
question witnesses;
identify applications or submissions which ought to be
put to the court;
suggest procedural steps that may be taken by a party;
clarify the particulars of the orders sought by a litigant
in person or the bases of such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.”[28]
[28] Ibid at paragraph [136]
Discretionary error
62The relevant legal principle for discretionary error is found in the High Court case of House v The King.[29] In that case, the majority of the court said:
“the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate Court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground the substantial wrong has in fact occurred.”[30]
[29](1936) 55 CLR 499
[30]Ibid at 504-505
Factual error
63The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[31] In that case, the majority of the court said:
“A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.[32]
[31](2019) 266 CLR 129
[32]Ibid at paragraph [55]
The Law applied by the Magistrate
64Section 47 of PSIO Act (relevantly) provides:
“(1) Subject to this Act, in a proceeding for a personal safety intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
(2) The following provisions apply to a proceeding for a personal safety intervention order –
(a) sections 13, 30, 31 and 41 and Part 3.10 of the Evidence Act 2008;
…
(3) The court may refuse to admit or may limit the use the be made of, evidence if the court is satisfied –
(a) it is just and reasonable to do so; or
(b) the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading and confusing.
65Section 41 of the Evidence Act (relevantly) provides:
“(1) The court must disallow an improper question or improper questioning put to a witness in cross examination, or inform a witness it need not be answered.
….
(7) However the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.”
66Section 61 of the PSIO Act (relevantly) provides that:
“(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that –
(a) The respondent has –
…
(ii) stalked the affected person and is likely to continue to do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.
…
(4) Despite subsection (1), the court must not make a final order if satisfied on the balance of probabilities that the respondent engaged in the conduct without malice –
(a) in the normal course of a lawful business, trade profession or enterprise or whose business or whose principal business is the publication or arranging for the publication of news or current affairs material; or
(b) for the purpose of an industrial dispute; or
(c) for the purpose of engaging in political activities or discussions or communicating with respect to current affairs
…”
67Section 10 of the PSIO Act provides the meaning of “stalking”.
68It refers to a person who engages in a course of conduct towards a second person (relevantly):
(a) with the intention of causing ….. mental harm….or of arousing apprehension or fear in the second person for …her own safety …. and
(b) that includes any of the following
…
(ii) Contacting the second person …by …. Text message, email or other electronic communication or by any other means whatsoever;
…
(vi) Entering or loitering outside or near the second person’s…. place of residence or place of business or any other place frequented by the second person….
…
(x) acting in any other way that could reasonably be expected:
(A) to cause ….mental harm to the second person….or
(B) to arouse apprehension of fear in the second person for …. her own safety or that of any other person
(2) For the purposes of this Act [the respondent] has the intention to cause ….mental harm to the second person…. or to arouse apprehension or fear in the second person for …her own safety …. If
(a) the first person knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b) [the respondent] in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.
(3) In this section mental harm means:
(a) psychological harm; and
(b) suicidal thoughts.
Analysis
Did the Magistrate apply the wrong test by failing to consider if a genuine threat existed and did he fail to apply section 165 of the Evidence Act?
69It is convenient to deal first with the alleged legal errors set out in the submissions made by Mr Souben, or on his behalf.
70Mr Souben asserts that the Magistrate made errors of law in finding that his behaviour had been threatening because Ms Marson admitted his messages had been “lovely” and ‘beautiful” and on any objective analysis, no threat existed.
71Ms Marson’s evidence before the Magistrate was received in the form of a statement.[33] In addition, Ms Marson gave additional oral evidence and was cross examined by Mr Souben.
[33]CB 88-92
72In summary, Ms Marson’s evidence was as follows:
(a) she met Mr Souben at work. He was always very nice but very flirtatious towards her.
(b) In July 2023, after a discussion with the manager, Mr Souben gathered his things and left. On his way out, he approached her and asked her to contact him if she wanted to catch up. Ms Marson did not contact him, but about four days after he left, he appeared from the laneway at the rear of her workplace and asked to talk to her. She met him later that afternoon when he began:
“ranting non-stop to me about himself, why he left work and other subjects I can’t remember, he was also asking me out again and wasn’t making much sense in general”.[34]
[34]CB 89
(c) Later that night, Mr Souben sent Ms Marson a friend request on Facebook, which she ignored. He then began to send very long messages to which she did not reply and which were mostly:
“nonstop rants that didn’t make any sense, however he would also say things along the lines of he will wait for me, and talking about the things he can give and share with me.”[35]
[35]Ibid
(d) On an afternoon in August 2023, she was walking home when Mr Souben approached on the street. He asked her why she didn’t reply to his messages and again told her how he could provide for her and give her all the attention she needed. Ms Marson told him she was not interested in him.
(e) Despite this indication, Mr Souben continued sending messages on Facebook. Ms Marson replied, indicating again that she wasn’t interested, didn’t want him to come to see her anywhere and asking that he leave her alone[36]. Mr Souben ignored these requests.
(f) In September 2023 after work, Ms Marson was approached by a woman who identified herself as Mr Souben’s former partner, who provided an explanation for his behaviour. Ms Marson told this person that she was not interested and she felt uncomfortable due to Mr Souben’s behaviour.
(g) Approximately a week later, the former partner again approached Ms Marson. This time, she provided a letter to Ms Marson. The letter was 13 pages long with very small font. It set out the history of the former partner’s relationship with Mr Souben and was trying to persuade her to see him again.
(h) Ms Marson discussed the situation with her family and they began driving her to work, because they were worried about what Mr Souben might do.
(i) In October 2023, Ms Marson saw Mr Souben standing on the street near her work. She sent a message to her co-worker Arna because she was afraid Mr Souben was waiting for her. Arna messaged back that Mr Souben had approached her on the street when she left work and was asking her about Ms Marson.
(j) Ms Marson spoke to her boss about the situation and he indicated he would try to speak to Mr Souben. The following day, Ms Marson was again told that Mr Souben had been looking for her at work.
(k) Ms Marson then attended the police station. She reported the matter, provided the messages that Mr Souben had sent her and told police that the whole incident
“has left me feeling very uncomfortable, worried and unsafe both at work and at home. I can no longer walk to or from work due to being in fear of him and I don’t even feel safe taking my breaks out the back of work. I believe Paul is obsessed with me and has a fantasy that we will be in a relationship together and I’m afraid he won’t take no for an answer”.[37]
[36]CB 66 and 72
[37]CB 91-92
73In cross examination, Ms Marson confirmed the contents of her statement. She told the court she was “super uncomfortable”. She said she found Mr Souben’s attendances at her work intimidating, unnecessary and a violation of her wishes.[38]
[38]T38-40
74The Facebook messages sent by Mr Souben (and the two messages sent by Ms Marson) were in evidence before the Magistrate. They provide contemporaneous evidence in support of Ms Marson’s statement. During the hearing, Mr Souben admitted sending the messages but said he wanted to engage with Ms Marson “eyes on eyes”.[39]
[39]T85
75Ms Marson’s conversation with the former partner was secretly recorded by the former partner. That recording was also in evidence before the Magistrate.
76In his decision, the Magistrate found that Mr Souben stalked Ms Marson.
77The Magistrate took into account the definition of stalking in the PSIO Act and said it was not necessary for a person to actually intend to cause fear or apprehension. It was an objective test, which meant:
“that behaviour by an infatuated person who is unable to see how their behaviour may negatively impact on someone may still fall within the definition.”[40]
[40]T131
78The Magistrate accepted Ms Marson’s evidence that she felt scared and apprehensive as a result of Mr Souben’s behaviour.
79Subsection 5 of section 61 of the PSIO Act provides that the court must not make an order where the behaviour occurred “without malice” in three specified circumstances.
80Firstly, in the course of business or journalism, secondly in an industrial dispute and thirdly in a political or public affairs context.
81None of these circumstances applied to Mr Souben’s conduct. Therefore, the absence of malice or bad intent was not a feature which entitled Mr Souben to be excluded from being subject to an IVO.
82There is nothing in section 61 which requires the Magistrate to make a positive finding that any threats had been uttered by Mr Souben or that he had malicious or bad intentions. It was sufficient for the Magistrate to find that Mr Souben had stalked Ms Marson and was likely to continue or to do so again.
83On any view, Mr Souben’s conduct as described by Ms Marson and her fear for her safety was sufficient for the Magistrate to make a final order, if the Magistrate accepted her evidence.
84I reject Mr Souben’s submission that in order for his behaviour to constitute stalking, it was necessary for the applicant to prove actual intent to cause harm or apprehension.
85Section 10(2) of the PSIO Act provides that intention to cause harm or to arouse apprehension or fear exists where, in all the particular circumstances, [Mr Souben] ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension.
86Therefore it was not necessary for the applicant to prove actual intent, it was enough to show that “in all the circumstances” Mr Souben ought to have understood that his conduct was likely to cause harm or arouse apprehension. Those circumstances included having been told to stop contacting her and attending at her work but continuing to do so.
87The submission that the Magistrate failed to apply section 165 of the Evidence Act is misconceived.
88As provided by section 47 of the PSIO Act, the rules of evidence do not apply and the Magistrate could inform himself in any manner he saw fit.
89Subsection 2(a) of that provision sets out the provisions of the Evidence Act which apply to a proceeding for a personal safety intervention order. Section 165 is not one of them. This ground fails.
90The submission that the Magistrate failed to undertake an objective assessment whether a genuine threat exists is also misconceived. The combination of section 10 and section 61 of the PSIO Act require no such assessment.
91The submissions that the Magistrate ignored Ms Marson’s evidence about the benign nature of the messages or that the focal point of the inquiry should have been the alleged inconsistencies in her evidence are both misconceived.
92The focus of the Magistrate’s enquiry had to be (and was) whether the evidence before him allowed a finding that Mr Souben stalked Ms Marson within the definition of section 10 of the PSIO Act and whether Mr Souben’s conduct had the effect of placing Ms Marson in fear and apprehension for her safety and was likely to continue or happen again.
93I accept it was important to Mr Souben, however it was not important under the law, that the contents of the messages were “benign” or were sent without malice or bad intent.
94It was also not important that Ms Marson said she was afraid and also acknowledged there was no explicit reason for her fear. This is because there was evidence before the Magistrate that Ms Marson had repeatedly asked Mr Souben to stop contacting her, but he persisted and this caused her to be afraid.
95It was this persistence, in the face of repeated requests to leave her alone and Mr Souben’s lack of appreciation of Ms Mason’s position, which formed the basis for the Magistrate’s decision to make the intervention order.
96For example, at the end of the case, the Magistrate asked Mr Souben whether he accepts that Ms Marson was fearful or apprehensive. Mr Souben said:
“Completely not, because it's her who go on my back, ah, to stole my life. Each - ah, be super friendly with someone super close to me. After to start to say all of this spreading stuff which doesn't exist. So, it's impossible that she said that, ah, she's in fear. I think we all errors on the record to say that she's totally not feeling any one fear.”[41]
[41]T123-124
97In relation to the submission that there was a missing portion of the transcript, no submissions were made by Mr Souben about the significance of this. I have dealt with his submissions about the Tetany issue later in this ruling.
98None of the grounds relied on in the submissions for the preliminary hearing are made out.
Did the Magistrate fail to provide procedural fairness to Mr Souben?
99Essentially, Mr Souben asserts that he was treated unfairly, he was not provided assistance as a self represented litigant and his disabilities and illness had not been accommodated.
100In order to decide whether he has made out this ground, it is necessary to consider what was practically required in the circumstances of the case.
What did fairness require in the particular case before the Magistrate?
101The nature of the decision to be made was a decision in a civil proceeding for the protection of Ms Marson from unwanted contact with Mr Souben which was causing her fear and apprehension.
102It was not a criminal proceeding and its consequences were not criminal unless the order was breached. Therefore, it was not necessary for the applicant to make out their case to the criminal standard, to provide independent or contemporaneous proofs supporting the evidence of the witness, to bring CCTV or other documentary evidence, or to call every witness who might have something to say on the issues in dispute. Such steps might be necessary in a criminal trial but they are not necessary in a proceeding under the PSIO Act.
103The issues in dispute were not complex. The Magistrate was required to hear evidence and decide whether it was more likely than not, that Mr Souben had engaged in stalking which was causing fear and apprehension and unless the order was made, he was likely to continue his unwanted behaviour.
104The submissions each party wished to put before the Magistrate were not complex. Mr Souben wanted to challenge Ms Marson (and the police) on whether they were telling the truth. The police, on Ms Marson’s behalf wanted to tell the Magistrate that the evidence allowed a finding that stalking had occurred and was likely to occur again.
105The significance of the decision in the mind of Mr Souben was enormous. He made it plain to the Magistrate that he considered the decision had a significant impact on his reputation, on his visa status and on his life.
106The Magistrates Court is the busiest court in the State of Victoria. It hears thousands of applications for intervention orders each year. Some of them are under the PSIO Act, others are related to family violence.
107This high level of case load will often require Magistrates to deal with matters efficiently, in a way which saves time and cost to the parties. However at all times, the court must be fair to both parties and where one is at a disadvantage, the Magistrate must ensure, as far as possible, that that party has assistance to understand the proceedings and to participate in them meaningfully.
108Magistrate Thomas was allocated the matter after an initial call-over took place before another Magistrate.[42] The court had allocated two days for the hearing of the application and the matter was concluded within that time frame.
[42]109When the matter was called on, the Magistrate inquired about witnesses, confirmed that the proceeding was a proceeding under the PSIO Act, and asked the applicant to begin calling his witnesses.[43]
[43]T16
110The transcript shows that at the commencement of the case, no explanation was provided to Mr Souben about the nature of the proceeding, no inquiry was made about whether any special accommodations needed to be made on account of his language or other difficulties and no explanation of the relevant law was provided by the Magistrate prior to the commencement of evidence.
111I consider Mr Souben was at considerable disadvantage on account of his emotional state, the extent of his mistaken beliefs about the proceeding and his language and health challenges. He had no lawyer and was emotionally involved in the subject matter of the proceeding.
112The transcript reveals that during his interactions with Ms Marson, Mr Souben was motivated by his desire to obtain an explanation from Ms Marson of the reason she was no longer interested in contacting him. In pursuit of this, he considered it was perfectly legitimate to send her messages, attend at her work and send his ex-partner.[44]
[44]113Before the Magistrate, Mr Souben made it clear that he thought he was facing a hearing about threats or danger of physical violence posed by him to Ms Marson. He considered these were untrue as he had never made threats or acted violently.[45]
[45]114In Mr Souben’s mind, none of his actions were illegal or warranted him being “in front of the court”.[46] Mr Souben’s understanding of the reasons he was before the court was mistaken.
[46] T76 and T129
115Mr Souben’s submissions for and during the preliminary hearing demonstrate that this misunderstanding continues, despite the Magistrate’s explanation of the law to him, his findings and despite the apparent assistance of a lawyer or legally trained person.
116That explanation was provided by the Magistrate but it was not until the end of the case, when he explained the law to Mr Souben and asked the police prosecutor to explain how the case was put.[47]
[47]T110-116
117I consider the interests of justice and the circumstances of the case required the Magistrate, at the commencement of the hearing, to draw attention to the law to be applied on the application and to clarify the particulars of the orders sought by the applicant and the basis for those orders.[48]
[48]Criteria 9 in Tomasevic v Travaglini (see paragraph 58 above)
118It would not have taken a significant amount of court time and may well have shortened the hearing time, as Mr Souben should have been placed in a position to understand what was required of him during the hearing and his attention drawn away from his mistaken understanding of the case he had to answer.
119The Magistrate commenced the hearing with Mr Souben, a litigant in person with language and emotional challenges as though he had qualified counsel before him. Although he assisted Mr Souben to frame his cross examination questions, this assistance was given in a vacuum as Mr Souben was not informed what case he had to answer. The consequences of this can be observed in two examples from the transcript.
120First, during the hearing, the Magistrate appropriately made rulings about questions which could not be asked because they were not “relevant”[49] and required Mr Souben to only ask questions eliciting “direct evidence”.[50]
[49] For example see T57, L15-23 and T103, L18-31
[50] T103-104
121However, the Magistrate had not explained to Mr Souben anything about the process, what matters he had to consider in order to make a decision, what “direct evidence” meant and what “relevant” meant.
122Therefore, the Magistrate’s rulings on relevance or requiring Mr Souben to ask a question to elicit “direct evidence”[51] would have made no sense to Mr Souben.
[51] T104
123Second, the transcript reveals that during the hearing, when he was asked to slow down the pace of his speech, Mr Souben said he had a “condition” on “same spectrum as Autism” and that it was really difficult for him to speak slowly. When Mr Souben raised the issue, the Magistrate said “I understand, I’m taking that into account”.[52]
[52] T68 and the audio recording where the word “Autism” was spoken by Mr Souben
124Despite this indication, on the second day at the end of the evidence of the former partner, the Magistrate prevented Mr Souben from asking certain questions on the basis of relevance and on the basis that he was not eliciting “direct evidence”.
125Mr Souben, understandably became frustrated and angry as he did not understand why the Magistrate was preventing him from asking questions he (Mr Souben) considered important. Mr Souben raised his voice at the Magistrate and demanded that he be treated fairly.
126The Magistrate then, also in a raised voice, directed Mr Souben not to interrupt and disrupt the proceedings as he might be charged with contempt and ‘face the possibility of an immediate jail term’ and ‘will find [himself] sitting in the cells’.[53]
[53]T104-106
127These two examples illustrate the consequences to Mr Souben of not receiving information about the process, the issues to be decided, what was relevant, what direct evidence was and what the law required.
128At the conclusion of all the evidence, the Magistrate, for the first time, asked the applicant to explain the basis on which the application was being made and referred to the relevant legal provisions.
129In my view, Mr Souben has made out this ground. It is therefore not necessary to consider the remainder of the procedural fairness particulars.
130However for completeness, I will make some brief comments about them.
131Having read the transcript and listened to the audio recording, I do not consider the Magistrate lacked impartiality, sabotaged Ms Souben’s defence or knowingly put his health at risk.
132During the hearing, the Magistrate provided assistance to Mr Souben to cross examine witnesses by helping rephrase questions so the witness could understand them, explained to Mr Souben that certain matters could be put by way of submission.
133Although Mr Souben wanted the Magistrate to do something about the witnesses to be called by the police and to do something about the alleged failure of police to interview Mr Souben about the allegations, these were not matters within the Magistrate’s powers and he explained that to Mr Souben.[54]
[54]T8-13
134The Magistrate did not accuse Mr Souben of providing only edited parts of the recording. On the first day, the Magistrate indicated Mr Souben could play the part of the recording which he alleged showed Ms Marson had made statements which were inconsistent with the evidence she gave in court.[55]
[55]135On the second day of the hearing, during the former partner’s evidence, the recorded conversation between her and Ms Marson was played to the court. The Magistrate noted the recording was edited:
“So, we don't get the entirety of the sentence, we only get part of the sentence. …. There’s always a danger in that, that that might create a false impression.”[56]
[56] T98 and T100
136The Magistrate requested the full recording and listened to it in his chambers. There was nothing inappropriate about that and there were no accusations by the Magistrate to Mr Souben. It may be that the language barrier created an apprehension in Mr Souben that he was being falsely accused but this is not what happened.
137There is nothing in the transcript or in the audio recording of the hearing which suggests the Magistrate was racist or sexist.
138During the preliminary hearing before me, Mr Souben complained that the Magistrate had gestured, grimaced, waved at him in a dismissive fashion and held his head in a way intended to suggest to Mr Souben that he was giving the Magistrate a headache.
139An inquiry was made with the Magistrates’ Court registry about the availability of a video recording of the proceeding. No such recording was available. I have however, listened to the entirety of the day and a half proceeding before the Magistrate. I do not accept that the Magistrate spoke disrespectfully or humiliated Mr Souben. That was not revealed by the transcript or the audio recording.
140I accept that Mr Souben may have perceived the Magistrate’s gestures, facial expressions or holding his head as he took notes as being directed in a negative way towards him or humiliating him. The Magistrate raising his voice might have contributed to this perception.
141However it is important to note that this was the only time the Magistrate’s voice could be heard to be raised. For the entirety of the remainder of the hearing, the Magistrate spoke in a calm manner.
142The procedural fairness ground having been made out, I turn to consider whether it was material.
Was the failure to provide procedural fairness to Mr Souben a material error, that is, did it deprive Mr Souben of the opportunity of a different outcome?
143To put this another way, if the Magistrate had, at the commencement of the proceeding explained to Mr Souben the legal test for the making of an intervention order, explained that it was not necessary for him to have posed a threat of violence or physical danger to Ms Marson, would Mr Souben have been able to obtain the result he wanted, that is no intervention order being made?
144The answer to this question is “no”.
145I will now outline my reasons for this conclusion.
146The Magistrate was bound to (and did) apply the provisions of the PSIO Act. He found Mr Souben had stalked Ms Marson which caused her fear and apprehension and he was likely to continue stalking her because he lacked appreciation of the consequences of his conduct on Ms Marson. These findings were made under sections 10 and 61 of the PSIO Act.
147Under those provisions, it doesn’t matter if Mr Souben did not actually intend to cause fear and apprehension to Ms Marson.
148If the evidence showed that Mr Souben engaged in a course of conduct which included sending messages, attending at Ms Marson’s work to meet her, sending his former partner to meet her (twice) and deliver a note or a letter asking her to meet Ms Marson, the Magistrate was entitled to find that the conduct met the definition of “stalking”. That is because Ms Marson did not want it and Mr Souben was aware or ought to have been aware that his conduct was likely to and in fact did cause fear and apprehension.
149Under the law, it did not matter if Ms Marson had “aspiration”[57] or advice or input from others to make her decision. Ms Marson was entitled to seek the help and guidance of people she trusted. Mr Souben was bound to respect her decision, no matter how she arrived at it or what he thought about it. His failure to do so exposed him to the risk that an application for an IVO would be made.
[57]During the hearing, Mr Souben made much of the idea that Ms Marson had taken ‘aspiration’ from others as a result of the note or letter provided by the partner but the Magistrate did not allow those questions, see T99-100
150It does not matter under the law if Ms Marson had previously wanted to have contact with Mr Souben or had previously happily met him. Ms Marson had no obligation to explain to Mr Souben why she no longer wished to have contact with him. Mr Souben was not entitled to demand any explanation from her and to continue sending messages to her, sending his former girlfriend to her, seeking such an explanation.
151It may be that if these matters had been explained to Mr Souben in advance of the hearing, he may have taken a different course during the hearing. It is equally possible that even if these matters had been explained to him, Mr Souben may still have wished to contest the proceeding. It does not matter which of these might have occurred.
152There was enough for an intervention order to be made based on the evidence of Ms Marson, the text messages, the evidence of Mr Souben himself and the evidence of the former partner, together with the recording and the note or letter given to Ms Marson.
153Mr Souben did not accept that he had been told by Ms Marson to stop sending her messages.[58] This was an extraordinary position to take given Ms Marson’s message to him which said in part:
“I have a boyfriend and need you to stop contacting me as I’m feeling extremely uncomfortable”[59]
[58]T125
[59]CB 72
154During the hearing before the Magistrate and before me, Ms Souben made it plain that he considered he was entitled to an explanation and had done nothing wrong in trying to extract if from Ms Marson in the way he did because it was not angry or threatening.
155All of the evidence considered by the Magistrate together with Mr Souben’s obsessional conduct during the hearing pointed to the need to make the IVO.
156Therefore, I consider that the failure to provide procedural fairness to Mr Souben would not have made any difference to the final outcome of the case. Based on the evidence of Ms Marson and the other evidence, the Magistrate had no choice but to make the intervention order.
Discretionary error - did the Magistrate act on a wrong principle, allow irrelevant matters to affect his decision or mistake the facts?
157All of Mr Souben’s grounds alleging discretionary error are without merit. I will deal with them briefly.
158The Magistrate could, but was not bound to accept Mr Souben’s submission that police and Ms Marson were lying or that Ms Marson was being manipulative.
159During the preliminary hearing, a submission was made on behalf of Victoria Police that it was not apparent on the material, that there were any lies and even if Mr Souben believed there were lies, that did not mean that there were lies. This can be illustrated by an example from the transcript.
160In cross examination, Mr Souben asked Ms Marson whether she had said to his former partner that if he continued to work there, “we will hook up for sure”.[60]
[60]T42-43
161Ms Marson did not accept that she had made this statement and Mr Souben suggested to her he could prove (by reference to the recording) that she was “clearly lying”.[61]
[61]T43, L1-9
162Parts of the recording of the conversation between Ms Marson and the former partner were played to the court. As is the usual practice, the recording played to the court has not been transcribed. However, it features on the audio recording of the proceeding.
163The part of the audio recording played to the court reveals that Ms Marson did not say what Mr Souben suggested. Ms Marson said:
“if we had met out casually on a night and we hadn’t worked together and we got along really well then maybe we would have just randomly hooked up”
164The entirety of the recording was not provided to the court as part of the appeal process. However, it is clear that when he suggested Ms Marson was lying, Mr Souben was referring to the part of the conversation reproduced above.
165It is also clear that Ms Marson did not in fact say what Mr Souben thought she said. It may be that the language barrier caused the misunderstanding and caused Mr Souben to believe that Ms Marson was telling a lie about that.
166There are various other instances in the transcript where Mr Souben suggested people were lying. I do not propose to outline all of them. It is sufficient to say that a Magistrate is entitled to accept or reject all or part of a witness’ evidence. It is up to the Magistrate what evidence he accepts or rejects. It is not an error for the Magistrate to prefer some evidence over other evidence.
167I accept the submission made on behalf of Victoria Police that the Magistrate was not bound to accept that there had been any lies.
168Turning to Mr Souben’s next submission, that the Magistrate failed to accept Ms Marson had been influenced by others and was being manipulative.
169Even if the Magistrate accepted that Ms Marson had been influenced by others when she made her decision not to contact Mr Souben, that did not mean he was required to make no IVO.
170As I understand Mr Souben’s submission about Ms Marson being “manipulative”, it was based on his misunderstanding about the basis for the intervention order application.
171The Magistrate was entitled to reject a submission based on alleged manipulation by or of Ms Marson, if he found her to be a believable witness.
172The Magistrate could, but was not bound to accept Mr Souben’s evidence. In particular, the Magistrate could still make the intervention order even if he accepted that Mr Souben had not made any threats and was not a physical danger to Ms Marson.
173Taking into account the evidence of Ms Marson, the Magistrate’s judgement was not disproportionate.
174It was necessary for the Magistrate to make the IVO to protect Ms Marson from unwanted contact from Mr Souben, which was causing her fear and apprehension.
175The Magistrate found that Mr Souben believed that there was some kind of conspiracy against him, that Ms Marson was playing games with him and had betrayed and humiliated him.[62]
[62]T132
176Mr Souben’s refusal to accept that Ms Marson could have felt fear or apprehension as a result of his conduct, formed a solid foundation for the Magistrate’s concerns that without an IVO in place, he was likely to continue to contact her.
177I accept the submission made on behalf of Victoria police that Mr Souben’s own admissions (of having sent the emails) together with his evidence and conduct during the hearing, all provided overwhelming support for the making of the IVO.
178Mr Souben’s assertion that the Magistrate accepted “accusations which did not exist” most likely originated from his misunderstanding of what the law required to be proved.
179The Magistrate said in his decision, that he accepted that Mr Souben did not actually intend to cause fear and apprehension, but that his conduct had had that effect and he had not understood that.[63]
[63]Ibid
180There is nothing in the transcript or in the audio recording which suggests the Magistrate participated in a psychological mind game with the purpose of humiliating and destroying Mr Souben’s entire life.
181Sadly, this is a view Mr Souben has formed not only about the Magistrate but about police and about Ms Marson. This view appears to have profoundly affected how Mr Souben viewed the proceeding and its impact on him, but it is not objectively supported by the evidence before the Magistrate.
182The submission that the Magistrate was bound to consider the repercussions to Mr Souben of the making of the IVO is misconceived.
183The Magistrate was bound to (and did) consider all of the evidence and made a decision whether it supported the making of an intervention order. The consequences to Mr Souben of any IVO, were not a relevant consideration for the Magistrate.
Factual error – did the Magistrate make findings which were glaringly improbable or contrary to compelling evidence?
184All of Mr Souben’s grounds alleging factual error are without merit. I will deal with them briefly.
185The Magistrate considered it of importance that Ms Marson, when she was not aware she was being recorded said to Mr Souben’s former partner, that she had been scared and worried by his conduct.[64]
[64]T128
186The recording is important because it provided contemporaneous evidence to contradict Mr Souben’s account that Ms Marson was being manipulative or telling lies. It provides support for Ms Marson’s evidence to the Magistrate.
187Mr Souben alleges the Magistrate accepted evidence and accusations which did not exist. In the preliminary hearing, Ms Souben explained that this related to whether Ms Marson was ‘a woman in danger’.
188I have already addressed the argument about whether it was necessary to make out threats or danger. The Magistrate did not make any findings that Mr Souben had made any threats or posed a physical danger.
189In the preliminary hearing, Ms Souben explained that what he meant by “accepting evidence that does not exist” related to messages allegedly provided by Ms Marson to a person called “Arna”. The messages had not been produced to the court even though Ms Souben had asked for them. Mr Souben’s position was that if the messages had not been produced, Ms Marson could not give evidence about them and the Magistrate could not make findings about the evidence given by Ms Marson.
190As set out above, section 47 of the PSIO Act provides the Magistrate was not bound by the rules of evidence and could inform himself in any way he considered fit.
191The Magistrate could refuse to admit or could limit the use that could be made of evidence if satisfied it was just and equitable to do so or the probative value of the evidence was substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.
192The submission that Ms Marson’s evidence about the messages could not be received unless the messages were produced is misconceived. It assumes that evidence given about the contents of documents can not be accepted in the absence of the documents. That cannot be right.
193There may be many reasons why documents are not produced. They may be lost or destroyed or, the applicant in a civil proceeding may consider it unnecessary to produce every single document referred to by their witnesses. The Magistrate was entitled to accept Ms Marson’s evidence even in the absence of these messages.
194The remainder of the particulars under this ground, can be quickly disposed of.
195First, I have been unable to understand what was meant by “decisions on irrelevant topics”. My reading of the transcript does not reveal any such decisions.
196Second, the Magistrate was not required to “confront” Ms Marson with anything. That was Mr Souben’s role and the transcript reveals he “confronted” Ms Marson with his position and she gave her evidence in response to his questions.
197Third, it is not clear what was meant by “the reality that was plainly evident”. As I understood the submission, Ms Souben’s reality ‘which was plainly evident’ was that he had not been threatening and was not a danger so there was no need for an intervention order. I have already addressed this point.
198Finally, Mr Souben alleged the Magistrate had been careless or negligent in the conduct of the proceeding. Subject to the findings made about procedural fairness, there is nothing in the transcript or the audio which provides support for this allegation.
Conclusion
199Mr Souben has not made out any of the necessary grounds for the setting aside of the Magistrate’s decision.
200I therefore make no order interfering with the Magistrate’s decision. This means the intervention order will continue to be in operation until midnight on 22 May 2029.
During the preliminary hearing, Mr Souben explained that this disorder causes his muscles to
contract making him feel very uncomfortable.
At T1-15 on 21 May 2024 is the callover before Magistrate G Thomas. At T15, Magistrate M Thomas
commenced hearing the matter.
For example at T 72-75 Mr Souben told the Magistrate about the development of his relationship with
Ms Marson and how what she had written in her statement did not accord with his understanding of
events. He explained that he wanted an explanation for why Ms Marson “switched” or changed her
position
For example, at T 26 Mr Souben asked SC Kane Nguyen to explain what danger he represented to Ms
Marson, and why had police not contacted him to assess whether he was in fact dangerous, in order to
determine if her ‘version’ was correct. At T 124 Mr Souben asked Ms Marson to confirm whether at any
time he had acted with an attitude or words to cause her to feel threatened or in danger because the
content of his messages was not one of threats but one of support
T43, L13-16: ‘HIS HONOUR: If its intend that you’re going to play some recording to the witness to
suggest she’s not telling the truth or misremembering, then by all means, we can organise that part of
the recording to be played.’
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