Stark (a pseudonym) v Hillam (a pseudonym) (No 2)
[2022] ACTSC 272
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stark (a pseudonym) v Hillam (a pseudonym) (No 2) |
Citation: | [2022] ACTSC 272 |
Hearing Date: | 24 June 2022 |
DecisionDate: | 7 October 2022 |
Before: | Mossop J |
Decision: | See [186] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from family violence order – allegation of actual and apprehended bias - where magistrate had sought additional evidence outside of hearing – magistrate made enquiries of the court registry to understand appellant’s position on costs – whether magistrate erred in failing to recuse himself for bias – application of s 65 of the Family Violence Act 2016 (ACT) – appeal dismissed |
Legislation Cited: | Family Violence Act 2016 (ACT), ss 6(b), 8, 13A, 14(1)(b), 34, 65, 73, 93 |
Cases Cited: | Cavanett v Chambers [1968] SASR 97 Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824 Russell v Eaton [2020] VSCA 249 |
Texts Cited: | Explanatory Statement, Family Violence Bill 2016 (ACT) |
Parties: | Jim Stark (a pseudonym) ( Appellant) Josie Hillam (a pseudonym) ( Respondent) |
Representation: | Counsel H Selby ( Appellant) S Whybrow ( Respondent) |
| Solicitors Armstrong Legal ( Respondent) | |
File Number: | SCA 38 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 7 October 2021 Court File Numbers: FVO377/2020 & FVO120/2021 |
MOSSOP J:
Introduction
These proceedings involve an appeal from the Magistrates Court which was exercising jurisdiction under the Family Violence Act 2016 (ACT) (FV Act). The orders from which the appeal is brought are orders made in two different applications for family violence orders. Proceedings FVO 377/2020 involve an application by the respondent (Ms Hillam) against the appellant (Mr Stark). The magistrate made a family violence order in those proceedings. Proceedings FVO 120/2021 were proceedings brought by Mr Stark against Ms Hillam. That application was dismissed by the magistrate.
The proceedings under the FV Act followed criminal proceedings brought against Mr Stark for sexual offences alleged to have been committed against Ms Hillam. There was a jury trial in December 2019. He was acquitted on three counts and the jury could not agree on the others. There was a second trial in September 2020 before a judge sitting alone. Loukas-Karlsson J acquitted Mr Stark on the remaining five charges.
Both the appellant and respondent are identified by pseudonyms: see Stark (a pseudonym) v Hillam (a pseudonym) [2022] ACTSC 101 at [1].
Grounds of appeal
The appeal is brought pursuant to s 93 of the FV Act. Such an appeal is an appeal by way of rehearing. The grounds of appeal in the Amended Notice of Appeal are as follows:
1.It was an error of law to find that the tests for making an award of costs as set out in section 73 of the Family Violence Act 2016 were met.
2.It was an error of law for the Magistrate to refuse to recuse himself given:
a.his apparent predispositional bias; and/or
b.his seeking of additional evidence outside of the hearing without the prior consent of the parties.
3.It was an error of law to reach the two final order decisions without proper regard to the evidence led orally at the hearing;
4.It was an error of law to reach the two final order decisions in reliance upon passages from the “reasons for decision” (to acquit [the appellant]) from a judge alone trial (R v [the appellant] [file number]) when the said reasons for decision ([medium neutral citation]) reflected errors of law arising from a failure to follow the High Court of Australia in Fleming v The Queen, AK v Western Australia and Antoun v The Queen, the particulars of such failure being
a.a failure to comply with the ACT Supreme Court Act sections 68C(2) requirement, as elaborated in AK v Western Australia, to give the reasons behind findings of fact;
b.to accept the complainant’s evidence meant to accept her truthfulness and reliability when such was impossible by reason of her proven and wilful deceit;
c.not having proper regard to evidence that went directly to assessing the credibility of both the complainant and the accused;
d.raising the issue of recklessness as the gravamen of the reason to acquit when neither party raised that issue and the case was run by both parties on a different basis;
e.a presentation in the reasons for decision of the evidence and the submissions in the trial that purported to be, and appeared to be, comprehensive but was not comprehensive;
f.adverting impermissibly to the civil standard of proof; and
g.impermissibly attacking the reputation of the accused (now appellant in these proceedings) despite sections 12(b) and 22 of the ACT Human Rights Act, section 12(b).
The only ground of appeal that was pressed was ground 2. The other grounds of appeal were said to be relied upon only as “particulars” of the basis for recusal.
In order to address ground 2, it is necessary to have regard to the course of the proceedings below.
Hearing on 13 May 2021
The proceedings came before the magistrate on 13 May 2021. His Honour indicated that he had read the reasons of Loukas-Karlsson J which had been published earlier that year. He indicated that he had also read all of the five pre-trial decisions and the transcript of the cross-examination of Ms Hillam which had been replayed at the second trial before Loukas-Karlsson J.
He reminded the parties of s 65 of the FV Act which indicated that the court may inform itself in any way that it considers appropriate in a proceeding for a family violence order. He indicated that he had formed the preliminary view that there was no need for the rules of evidence to apply pursuant to s 13A of the Act. He indicated that if anyone sought to persuade him otherwise then they may do so.
Mr Selby announced his appearance for Mr Stark. Mr Fraser announced his appearance for Ms Hillam.
Mr Fraser indicated that Ms Hillam had been admitted to Calvary Hospital since 6 May 2021 and was unable to attend. Mr Fraser submitted that the matter could still proceed today without her. Mr Selby indicated that there was no objection to the matters proceeding that day. The letter from the doctor at Calvary Hospital was marked as an exhibit.
Mr Fraser indicated that he would be relying upon the decision of Loukas-Karlsson J as well as calling evidence from Ms Hillam’s father. He pointed to the finding at [390] of the decision that on all five counts Mr Stark engaged in sexual intercourse with Ms Hillam and that Ms Hillam did not consent. His Honour referred to there being no requirement for proof of “the final element” – which must have been a reference to the requirement for recklessness – for the purposes of the FV Act. He said: “The absence of consent being proved, it seems to me, establishes family violence.” Mr Fraser indicated that would be his submission. His Honour asked what grounds Mr Fraser was relying upon for the purposes of the application. He indicated the instances of family violence outlined in the judgment and Ms Hillam’s father would give evidence of other incidents.
He then tendered the decision in R v [Stark]. There was no objection to the tender of that decision. It became an exhibit.
Mr Selby then gave his opening. First, he indicated that he would draw the magistrate’s attention to some “glaring omissions in her Honour’s judgment” and would take the court to some other pieces of information.
Second, he indicated that the special interim order (SIO) was obtained in April 2020, one year and one month after Ms Hillam initially went to the police. That and other conduct which he would refer to would demonstrate that “she was never at any material time in fear of [Mr Stark]”.
Third, insofar as Ms Hillam sought to rely upon some matters that happened prior to her going to the Belconnen police station in March 2018, she had ample opportunity to disclose those matters to the police and did not do so. Further, there had been no contact between Ms Hillam and Mr Stark since the pretext call from the Belconnen station two years and two months previously.
His Honour asked why that would be relevant other than as to the question whether there were special or exceptional circumstances warranting a longer than usual order. He asked why the present fear of the complainant was relevant in circumstances where a superior court had established that there had been sexual intercourse on many occasions without her consent.
After some further submissions from Mr Selby the magistrate asked what in the FV Act made relevant the lack of contact since an order has been made. His Honour pointed to the provisions of s 34(1)(b). Mr Selby referred to s 34(2). He submitted that the reference to conduct appearing “unlikely to recur” necessitated consideration of the fact that the parties had no contact since March 2019.
Mr Selby agreed that Mr Stark had been on bail or subject to a family violence order since the pretext call and that one of the bail conditions was to not have contacted Ms Hillam. The magistrate suggested that Mr Selby’s argument was that as he had not breached the law by breaching bail or a family violence order, then there was no need for another order. Mr Selby submitted that it was a standard judicial observation that one will not intrude into the rights of the parties unless there is a demonstrated reason to do so and that the intervention will be the minimum necessary to ensure the rights of the people involved. He submitted that there was no objective need for such an order.
Ms Hillam’s father
Mr Fraser then called Ms Hillam’s father. He outlined the mental health condition of Ms Hillam. She had become very anxious in the lead up to the second Supreme Court trial and concerned about the outcome. In the lead up to the second trial she also received an ACT Civil and Administrative Tribunal (ACAT) application for a small claim for several thousands of dollars from Mr Stark. Mr Stark claimed that Ms Hillam owed him money for purported loans and presents that he had bought her over the course of their relationship. The Tribunal dismissed all the claims.
The issue also arose when Ms Hillam tried to resolve the family violence proceedings. She offered to enter into mutual consent orders. That was rejected by Mr Stark unless she repaid the purported loan or loans. That was before the ACAT proceedings had commenced.
In 2017 Mr Stark had raised with him his belief that Ms Hillam was being prescribed the wrong medications or that a change of medication regime was being done incorrectly by her psychiatrist. Ms Hillam’s father told Mr Stark that they would be taking advice from her doctor rather than him. Ms Hillam’s father was concerned that Mr Stark had approached him with that belief and the suggestion that the regime prescribed by the doctor should not be followed.
He also gave evidence that Ms Hillam had received medication to help her sleep, but that Mr Stark would sometimes ring incessantly or text her until she responded and went to collect him from work.
He gave evidence that following their first breakup in late 2017, Mr Stark was at the Hillams’ house when Ms Hillam came home. They were talking and she was weeping. She became very distraught and stormed out of the house in the direction of the local shops. Ms Hillam’s father told Mr Stark that the best thing to do in that situation would be to leave her be and give her some space. He told him to stay away and not speak to her. However, later Mr Stark came back from the shops where he had encountered Ms Hillam and a friend and got into a confrontation with the friend.
His evidence was that Ms Hillam was currently “extremely concerned about the future potential of encountering [Mr Stark]”. He gave evidence that Mr Stark said he “knew people that would bash her if she went to the police with the sexual assault allegations”. She had discussed this with her father during the Supreme Court trial, the ACAT hearings and the family violence hearings. He said that she was very concerned about what would happen after the family violence order hearing, both to her parents at their home and to her if Mr Stark was able to find out where she lived.
Ms Hillam had also discussed with her father the situation if an order was not made. He said:
She has told me that she would just jump in her car and leave Canberra and go somewhere else. She wouldn’t be able to live where she does and she is too scared to go out in public and be in this area where she has got the support of her medical teams and us and she would just leave.
He said that Ms Hillam received ongoing psychiatric treatment from a psychiatrist as well as her general practitioner. He said that earlier in 2021 he believed she was seeing her psychiatrist every two weeks. Prior to the second Supreme Court trial, she had improved quite a bit but the pressure of having to go through the court process over and over again led her to deteriorate significantly.
He said, in relation to the effect of the family violence proceedings, that in a meeting with Mr Fraser and himself to prepare the matter “She became so visibly distressed that she just couldn’t answer any questions or speak. Basically she became semi-catatonic, I would call it, and the pressure and - yes, it’s destroyed her health.”
He was then cross-examined by Mr Selby.
He was asked about the second trial, which had occurred in September 2020. He said that it was not entirely clear that she was not going to have to give any further evidence at the second trial.
He was asked about the evidence that he gave concerning the key to his house. He said he recalled giving further evidence about where the key was stored and who had access to it. He said that his daughter did not tell him at any time that she deleted “critical text messages” from her phone. He said he had never had a discussion with a member of the Director of Public Prosecutions (DPP) about those text messages being deleted. He could not recall whether his daughter had told him that she went to the Belconnen police station between the pretext call and her second recorded interview to tell police officers about her phone and the text messages on her phone. He did know that she had given police her phone so they could download the messages. He had not been told that there were messages between her and Mr Stark on the evening of the alleged offences. He said that his daughter’s version, that there was no key available to get into the home, was beyond his knowledge until the first Supreme Court trial.
He did not know whether his daughter had made any contact with the DPP’s office between April 2020 and the time of the second trial. He said it would have been usual in the lead up to the trial for there to be some contact with the DPP.
He was asked about whether Ms Hillam sought his advice in relation to the seeking of the SIO in April 2020. He said that she had started talking about getting an “AVO” in the beginning of 2019 after she had gone to the police, however, the bail conditions that applied were more onerous than what was in the SIO and he suggested to her that she would not need to seek a separate order given the bail conditions that applied.
He was asked whether his daughter had ever told him about being in the same Woolworths as Mr Stark. He said that she had gone to a particular Woolworths and as she and a friend of hers were leaving they noticed that Mr Stark was in the checkout line. He said that it was well known that Mr Stark lived close to that Woolworths store. He agreed that during their relationship it was quite common for them to go to that shopping centre. He also knew that Mr Stark works at a particular shop in that shopping centre. Later in his evidence he confirmed that she said that she had been at the Woolworths with a friend of hers.
In relation to the incident where Mr Stark raised whether her psychiatric medication was appropriate, Ms Hillam’s father agreed that it was an incident where he regarded Mr Stark as being overly controlling. He denied knowing that his daughter had asked Mr Stark to raise the issue with him. He did not remember her losing a lot of weight at the time.
In relation to late-night phone calls, when it was suggested to him that he did not know who was making the calls, he said that his daughter would tell him the next day that Mr Stark had called her to pick him up. It was suggested to him that she only picked him up two, three or maybe four times after work. He said that was not his recollection.
He was asked about occasions when Mr Stark had been “stood up” by Ms Hillam. He had no knowledge or recollection of those matters.
In relation to the incident when she left for the O’Connor shops and met her friend, it was suggested to him that Mr Stark had arranged for her to come home. He said he did not recall that. He was asked whether he knew that Ms Hillam’s mother had told Mr Stark to go down to the shops and see that she was okay. He said he did not know. He agreed that Mr Stark came back to the Hillams’ house by himself and that Ms Hillam and her friend went somewhere else.
He agreed that apart from the ACAT process, the family violence order process and the incident at Woolworths, Ms Hillam had not complained of receiving a communication of any sort from Mr Stark. He also agreed that he had not been told up until that day (the day of the hearing) that his daughter had arranged to go to Mr Stark’s home at 6pm on the evening of the alleged offences.
The magistrate then asked Ms Hillam’s father some questions. He asked whether his daughter had ever expressed that she was afraid if there was not a continuing order. He said:
She is afraid that an encounter with [Mr Stark] or – an encounter with [Mr Stark] would cause her very great mental anguish and – and I suppose, you know, trigger – trigger a reaction that she wouldn’t be able to control in herself and she – that’s what she’s told me directly.
Ms Hillam’s father was asked what psychiatric or psychological problems she had been diagnosed with and he answered that she had been diagnosed with schizophrenia, depression, anxiety, obsessive-compulsive disorder and “bipolar personality disorder”. He said that not all of them were present before her relationship, some of them were diagnosed early in the relationship.
He said that, in relation to psychological treatment for what she said were sexual assaults by Mr Stark, that she had seen counsellors and support people through the Victim Support Unit. She had seen psychologists and counsellors in 2018 via “ACT Mental Health providers.”
The magistrate asked whether she had expressed any fears about being sexually assaulted again by Mr Stark. He said: “Not sexually assaulted no because she wouldn’t go anywhere near him.”
Neither Mr Selby nor Mr Fraser had any questions arising from the questions asked by the magistrate.
In re-examination by Mr Fraser, Ms Hillam’s father said that when raising the issue of Ms Hillam’s medication, Mr Stark had not said he was acting on Ms Hillam’s behalf.
That concluded the evidence for the applicant.
Mr Stark
Mr Selby indicated that he would call Mr Stark and that the evidence would be evidence in both matters for the magistrate.
Mr Stark gave evidence that between 2017 and March 2019 he had been in a relationship with Ms Hillam. The relationship began when they were both college students and it involved “a lot of sex”.
He said he was arrested by the police on 22 March 2019 and interviewed by them. There was a jury trial in December 2019. He was acquitted on three counts and the jury could not agree on the others. There was a second trial in September 2020 before a judge sitting alone. He was acquitted on the remaining five charges.
In the first trial, text messages between 6pm and 10:30pm on the night of the incident were not referred to. Just before the second trial he made counsel aware of those text messages. A page containing those text messages was tendered and admitted into evidence as an exhibit.
After the morning tea adjournment his Honour identified the five published interlocutory decisions in the criminal proceedings against Mr Stark which he had read.
The examination in chief then continued. Mr Stark said he was present at a hearing before the Chief Justice when those text messages were discussed. He said that the text messages were provided to the Crown. He said this occurred a month or two before the trial. He said that he recalled an undertaking from the Crown that the evidence would be able to be led at the retrial and that no Browne v Dunn point would be taken arising from the failure to put the material to Ms Hillam.
In relation to the evidence given by Ms Hillam’s father about medication, Mr Stark agreed that there had been such a conversation about her medication. His evidence was that Ms Hillam started having rapid weight loss, got very self-conscious and felt she was getting even more sick. She asked him to talk to her parents and told him that when she talks to her parents about mental health they do not listen to her. He denied that he was making any effort to control Ms Hillam but rather he “just wanted her to feel better.”
In relation to calling her late at night, he said there were a couple of times in 2018 when he had started a new job when he would ask her to come and pick him up. If she did not answer the phone he would just catch a taxi home. He did not recall occasions in 2017 when he asked her to pick him up. He was asked about occasions when he would ring her late at night. He gave an answer consistent with that being a rare event.
In relation to the incident when Ms Hillam left the family home to go to the local shops, he said he had a conversation with Ms Hillam but then she and her father had started fighting and he had been sent out the back by her mother. He was told by her mother to go after her and make sure she was all right and so he did. He was told by her father not to follow her but took her mother’s advice rather than her father’s.
In relation to the Woolworths incident, he gave evidence that two other supermarkets were closer to the Hillams’ family home than the Woolworths in question. He said that both she and Ms Hillam smoked and that there were tobacconists at the shopping centre where the Woolworths was located as well as elsewhere. The incident at Woolworths occurred before the SIO was made against him. He was there between 7pm and 8pm to buy cigarettes. He had not seen Ms Hillam before he entered the premises. He said he was about to be served and then he could see Ms Hillam and her friend behind him. They were four steps behind him. Ms Hillam was with a male person. She did not say anything to Mr Stark. Nor did the male person who was with her. Once Mr Stark saw that she was behind him, he did not buy anything, walked out of the shop and went home. He was on bail at the time.
He said that there has been no other occasion since the pretext call when there was any communication from him to Ms Hillam.
He said he had never threatened any form of violence against her in their entire relationship. He said he had never asked anybody else to threaten her with some form of violence.
In the first jury trial Ms Hillam had given evidence that he had given her a sexually transmitted disease. He denied ever having a sexually transmitted disease. He said that during the judge alone trial, he could not recall the trial judge ever asking him any questions about whether he had non-consensual sexual intercourse with Ms Hillam.
In cross-examination he was asked whether he was hurt by the allegations that Ms Hillam had made against him. He said: “I was supremely hurt”. He agreed that it remained the case. He said: “It will be for the rest of my life when you are falsely accused of sexual assault and other reckless crimes.”
He was asked whether he had read Loukas-Karlsson’s judgment. He said he had listened to it but not read it and gave a reason why he had not read it. He said it did not record the evidence at the trial correctly.
He was then asked about the pretext call. He was read some of the transcript of the pretext call. He said he recalled the conversation. When he was asked whether sexual activity had occurred he said:
Yes, it’s clearly talked about in the second trial that we had sex that night and it’s clearly talked about when I was in the police station. I did lie to the police because I was very scared at the time and we’re kind of establishing through this court case that I was not guilty of it and that is very clearly evident that maybe it was not properly said the first time.
He was then read the portion of the transcript of the pretext call in which he says “fuck. Have I done it again? … raped you?”. He was then taken to the part of the pretext call when he said he had woken up “sort of like grinding on her”. It was suggested to him that he did not ask her if he could do that. He answered: “She was awake for the whole time, Mr Fraser, that was the problem. It was all consensual. She was awake that night. She was never sleep.” It was put to Mr Stark that Ms Hillam went outside to have a cigarette and Mr Stark woke up and decided to join her. Mr Stark asked her “did we hook up last night?”. Ms Hillam felt as though he was trying to see if she knew what had happened the night before. Mr Stark said he remembered going outside for a cigarette but he did not ask her the question. He said that they talked about his new job and his new life. He agreed that he knew at the time of her mental health issues. In relation to schizophrenia, he said he thought it was psychosis and then later talked to a named person who said it was schizophrenia.
It was suggested to him that Ms Hillam said to him that she may go to the police about what happened on the relevant night. He denied that. It was suggested that he had replied that she would not be believed because of her mental situation. He denied that ever happening in their relationship. He was asked about the conclusion reached in relation to that conversation by the judge and he said: “I respect her Honour’s decision but that is not my belief and that is not the truth.”
He denied ever saying that he had friends that would bash Ms Hillam if she went to the police. It was suggested to him that during their relationship he “owned” Ms Hillam. He denied it.
It was suggested to him that Ms Hillam viewed him as the controlling partner in the relationship. He said that she may have thought that he was controlling but he was not. He said that was not how he viewed the relationship.
He said that a photograph of her with the words “[name] owns” written across it was sent to him by her.
He was asked about his claim for $4000 for things that he had given her. He said that they were loans. He said that he never asked for the things that he gave her. He was asked about a list of the things for which he made a claim. He recalled clothing and other items but he could not recall each single one. He believed that it included jewellery. He agreed that he was planning to marry her someday. He agreed that the jewellery included some rings, earrings and a chain.
He agreed that he had commenced proceedings to get the $4000 back but that was for “stuff that I had loaned her for, not the stuff that I gave her for”. He said that “we had an agreement that whatever she had asked me to buy, I would buy her for, as long as she paid me back one day for it”.
It was suggested to him that when the proceedings started against him, he used whatever leverage he thought he could against her to upset her. He denied that. He denied that was why he went to the ACAT. He denied that was why he used it in settlement offers in these proceedings. He agreed that the ACAT proceedings “did take a fair long time” but denied that he knew they would be upsetting to Ms Hillam.
It was also suggested to him that he raised the prospect of Ms Hillam having sex with him to the value of $4000. He said that the issue arose in the context of a $650 Louis Vuitton bag. He asked her for the money and she said “Look, I don’t have the money at the moment. We’ll just have sex and we’ll talk about it in the morning.”
It was suggested that this involved a level of control by him over Ms Hillam. He denied that. He denied that her offering to have sex with him involved a power dynamic in which he had all the power.
He agreed that he felt wrongly accused and said that was because he had done nothing wrong. It was suggested to him that he wanted her to experience what he had to experience over the last couple of years. He denied that. He said “I don’t want anyone to ever experience being falsely accused of crimes they never committed and going to jail.”
It was suggested to him that making Ms Hillam experience how he felt was why he was contesting the proceeding. He denied that, saying “It’s because I need my life back and by rights, I deserve my life back”. He denied that because an action had been taken against him, he was going to take one against Ms Hillam.
In relation to the discussion of medication with Ms Hillam’s father, he said he was doing what she wanted him to do. He agreed he was getting on well with her parents at the time. He was asked why he did not say that Ms Hillam wanted to change her medication. He explained by reference to a particular medical condition that there were reasons why he might not have approached it in that way.
It was suggested to him that there were more than four occasions when he received a lift from Ms Hillam. He denied that, saying he usually caught Ubers. He agreed that he may have called on other occasions to get a lift. He denied that she would always answer those calls and come. He said there were multiple times when she did not come when he called. He gave one specific example when he had walked home and seen her at someone else’s house. He agreed that he would sometimes ask her for a lift at other times of day. He said maybe five or six occasions. He said he usually had his own transport to and from work.
Mr Stark was then asked about the incident where Ms Hillam had been upset and left the house to go to the local shops. He said he had followed her mother’s request. He said he had caught up to her in an alleyway that was within 10 metres of her house. He said she screamed at him and kept walking. He said he stayed behind her to make sure that nothing bad happened. He denied shouting at her. He agreed that even when she told him to “Eff off”, he didn’t. He said he kept his distance from her, that he was trying to calm her down and that she was crying and in a very erratic state.
He agreed the shopping centre where the Woolworths was located was a larger one than the local shops.
He was asked about Ms Hillam’s birthday in 2018. He said she was not talking to him. He said that he tried to call her about three times and then gave up because it was not getting anywhere. He agreed that he kept going because he wanted to have contact with her. He said he did not know she was not going to come and see him.
He agreed he had suggested counselling a couple of different times. He said that she had then stood him up. He said that she agreed verbally that they would go and have counselling but when it came to it she would not show up. It was suggested to him that this was a message that she was trying to be apart from him. He said it was different when somebody said yes but then did not show up and apologised saying they were busy. He agreed he kept contacting Ms Hillam to try to arrange counselling. He said that she never said that she did not want to go to counselling but she did not show up.
In re-examination he said that he did not have a driver licence. He said that she would drive to her house or, before she had a licence, her mother or brother would drop her off. In relation to the morning after the alleged incident in March 2019, he said that he went to get breakfast at McDonald’s at 11am and that she stayed and talked to his mother. She had said she was tired and so he went by himself to get breakfast for them.
In relation to the ACAT claim, he said he expected Ms Hillam to pay the money after she got her inheritance from her grandfather.
He gave evidence as to how he earned money during the period of the relationship.
He said that during the trial before Loukas-Karlsson J the flyscreens of his family home had been sliced open and someone had tried to break into the house. His house was the only one on the street to which this had occurred. He was worried about this. He tried to get a family violence order. He said he had been to “the counter downstairs” at the court and tried to get a family violence order on over 10 occasions. He said he did not get one. He was asked whether he ever went in front of “an officer of this court” to try to get an order. He said that he had, but was told “too much time had passed from my acquittal to the time of me coming in.”
He denied trying to control Ms Hillam. He said there was no occasion when he was told by Ms Hillam that he was trying to control her. He said that he did not have any wish to have any contact or communication with her in the future. He said that he had not had any such wish since the day of his arrest in 2019.
That was the end of the evidence called on behalf of Mr Stark.
Submissions to the magistrate
Submissions commenced after the luncheon adjournment.
Mr Fraser then made his submissions first. He made reference to the objects of the FV Act in s 6(b) and the definition of family violence in s 8.
He emphasised that the proceedings were very different from the criminal trial. He submitted there was a clear finding of multiple instances of family violence as defined which were at the extreme end. He submitted that the timing of the seeking of the order was immaterial and that there were stringent bail conditions in place in the year before the order was sought. In relation to s 34 he said there was a pattern of behaviour, not only unwanted sexual intercourse but also economic abuse. He made reference to the claim for $4000, the fact that it was used as part of an offer to settle the present proceedings and the fact that the claim was rejected by the ACAT.
He also submitted that there had been emotional and psychological abuse, pointing to calls late at night, continuing efforts to pursue contact with Ms Hillam, pursuing her to the local shops when she had told him to “Eff off” and pursuing her in relation to counselling.
He submitted that it was entirely reasonable for Ms Hillam to go to the Woolworths, where she was seen by Mr Stark. He referred to the terms of the pretext call and the question recorded there: “Have I done it again, raped you?”. He also referred to the admission in the judgment at [156] that he had woken up “sort of like grinding on her”. He submitted that would amount to the offence of committing an act of indecency.
He then referred to the question “Did we hook up last night?”. He submitted that this involved exercising power and control that the FV Act was designed to protect against. In that context, he also referred to the evidence that Mr Stark had told her that she would not be believed. He submitted that if this evidence was accepted, that would be threatening behaviour and meet the definition of family violence.
In relation to the supposed loans, he submitted that Mr Stark’s conduct in seeking the money back was controlling if not intimidating.
He referred to the finding by Loukas-Karlsson J that Ms Hillam’s evidence about her lack of consent was credible and reliable. He also referred to the finding at [392] that her Honour accepted the complainant’s evidence beyond reasonable doubt on all counts. He submitted that if the magistrate accepted the evidence of Ms Hillam, then that was enough to found a family violence order. He also referred to the judgment at [396].
Mr Fraser made reference to s 14(1)(b) of the FV Act which requires the court to consider the affected person’s perception of the nature and seriousness of the respondent’s alleged conduct. He submitted that Ms Hillam’s father’s evidence involved “a chilling description of the effect Mr Stark has exerted and continues to exert… over Ms Hillam”. He pointed to the evidence that Ms Hillam’s father gave about Ms Hillam’s fear if an order was not made.
In relation to the incident of property damage involving the slashing of fly screens, he submitted that there was absolutely no evidence linking that to Ms Hillam. He submitted that the application for a family violence order made by Mr Stark referred to Ms Hillam texting people, but no evidence was given about that. The application did talk about the incident at the Woolworths, but he submitted that Ms Hillam did nothing that would warrant an order in Mr Stark’s favour. He submitted that the application was a vexatious one and “may even be in bad faith”.
The magistrate pointed out the other limb of Mr Stark’s application, namely making fabricated allegations to the police and Mr Stark’s acquaintances.
In relation to that, Mr Fraser submitted that Ms Hillam had not fabricated the allegations and that the Supreme Court accepted her evidence in relation to what happened to her and what she was feeling and thinking.
His Honour asked about the submission that the application was frivolous or vexatious. Mr Fraser indicated that it was on the basis that the application was flimsy, that none of the four items in the written application were made out. While the property damage incident was unfortunate there was absolutely nothing to link it to Ms Hillam.
Finally, Mr Fraser emphasised that the evidence that had been accepted in by Loukas‑Karlsson was of multiple incidents of non-consensual sexual intercourse and that was family violence “at the extreme end” and constituted a real need for Ms Hillam’s protection for a considerable time.
His Honour then asked about the operation of s 34 of the FV Act. He identified that Ms Hillam’s case was that s 34(1) was clearly satisfied because there was evidence of multiple instances of family violence. He then asked Mr Fraser to make submissions about s 34(2). Mr Fraser said that he relied mainly upon s 34(2)(b). He submitted that even if Ms Hillam did not have reasonable grounds to fear family violence, family violence had still been used by Mr Stark in relation to Ms Hillam. He also referred to an act of indecency in relation to the “grinding”. He submitted that would also constitute an offence. He submitted that the sexual intercourse without consent would certainly be an act of family violence as defined in s 8. His Honour asked about the issue of it constituting an offence. In particular, he asked whether the Act was calling for him to make a determination of the balance of probabilities or whether it was required that the behaviour be proved beyond reasonable doubt. Mr Fraser submitted that the balance of probabilities was sufficient.
There was then a discussion about the submission that the application was frivolous or vexatious. Mr Fraser indicated that his submission was that the application was vexatious rather than frivolous or in bad faith. His Honour asked whether he was referring to s 73 of the Act, the provision relating to costs. Mr Fraser said “Depending on your Honour’s finding, we would be looking to make an application. I am instructed to do so depending on your Honour’s findings.”
Mr Selby then made his submissions
Mr Selby asked for clarification whether the words “frivolous and vexatious” had been withdrawn. Mr Fraser clarified that “frivolous” and “bad faith" were not pressed but his submission was that Mr Stark’s claim was vexatious. The following then appeared in the transcript:
MR SELBY: And he has indicated - he has now indicated that he is proposing to make a costs order.
MR FRASER: Depending on the court’s finding.
MR SELBY: Thank you very much, right. Okay, thank you for that. That has a direct effect on what I will be saying hereafter to your Honour, now that it has been foreshadowed as a possibility.
HIS HONOUR: Why would that be?
MR SELBY: Your Honour will see. Right, just bear with me, and you will see.
HIS HONOUR: All right.
MR SELBY: Okay.
Mr Selby then proceeded to make his submissions. Mr Selby recognised at the opening of his submissions that if the statement made by Loukas-Karlsson J at the end of her reasons was correct then his client should not be taking up the time of the court by trying to resist the continuation of the order.
He referred to the evidence of Ms Hillam’s father and the claim that Mr Stark had controlled her. He accepted that the evidence of Ms Hillam’s father was consistent with what he genuinely felt. He submitted, however, that during the relationship Ms Hillam had her driver licence and Mr Stark did not. Second, Ms Hillam’s father did not know that it was his daughter who told Mr Stark to talk to her dad about the medication. Third, Mr Stark’s view was that it was Ms Hillam’s mum who had told him to go after her daughter even though her father had told him not to. Her mother was not called to give evidence. He submitted that in relation to the local shops incident, Mr Stark had been asked to do something, he did it, he was told to “fuck off” by her and he kept his distance.
He referred to the evidence of Mr Stark being stood up on her birthday and in relation to counselling. That was indicative that Mr Stark did not control her.
The magistrate referred to Ms Hillam having formed a different relationship and the fact that she had, in the text messages, invited herself around to his premises on the Friday night that gave rise to the charges.
In relation to claiming the $4000, Mr Selby suggested that was evidence not of control but the reverse. He was at work, he didn’t have a driver licence or a car. He bought “a whole lot of stuff” for Ms Hillam.
He referred to Mr Stark’s evidence that there were only a few occasions on which he asked her to pick him up. He submitted that the facts demonstrated a different relationship dynamic in which “she, not he … calls the tune on anything that matters”.
Mr Selby then moved to the issue of fear. He referred to the fact that the SIO was obtained in April 2020 but the jury had brought in its verdict before Christmas 2019. He submitted that there was no substantive change in the bail conditions between his release post‑arrest until he was acquitted in September 2020. The SIO had been obtained after the Woolworths incident. He submitted that, having regard to the relationship between the two, Ms Hillam would have recognised Mr Stark from the back of his head or the side of his head. That was a matter of “absolute certainty”.
The application for an SIO was filed on 16 April 2020. The Woolworths interaction was not mentioned. He submitted that if she had been in fear of him then she would not have gone to a place where there was a high chance of running into him. In particular, she could have gone to her local shops where the bail conditions prevented Mr Stark from being.
Mr Selby referred to the fact that the contents of Ms Hillam’s phone were downloaded. He referred to the transcript of the second trial in which he had cross-examined the relevant police officer. The relevant text messages were not there, but the method of download did not show that there had been deletions. Evidence of the officer was contained at pages 177-178 of the transcript of 28 September 2020, to which it appears the magistrate had access.
He pointed to his client’s denial that he had ever had a sexually transmitted disease and hence that either Ms Hillam’s belief was delusional or that she knew he had not given her such a disease but nevertheless made the accusation.
In relation to whether or not Ms Hillam was in fear of Mr Stark, Mr Selby said that such a fear was not based upon an objective reality. He submitted that the deterioration in her condition prior to the second trial was likely to be because she had seen him at Woolworths and that representatives of the prosecution were likely to have contacted her in preparation for the upcoming trial.
He then addressed the fact that in deciding the case the magistrate was able to look at such sources of information as could assist him and that the magistrate had “quite rightly” looked at the reasons given by Loukas-Karlsson J. He submitted that although Mr Stark had given sworn evidence before her Honour and the cross-examination of him had been “ineffectual”, “you will look in vain for any reasoned explanation of why she would reject his sworn evidence”.
He then summarised the submissions made on behalf of Mr Stark:
(a)he was not controlling and the evidence suggested in fact that Ms Hillam dictated the terms of the relationship;
(b)she had no fear of him and came and went as she wanted;
(c)she was “a fantasist” because of the allegation of the sexually transmitted disease;
(d)she had deleted critical messages from her phone “but we will never know why”;
(e)she took out the SIO in April 2020, four months after the jury trial when there had been no change in bail conditions;
(f)her father had noticed a deterioration in her condition and it was likely that the DPP had at least told her of the application being made to the Chief Justice; and
(g)the reasons for decision handed down six months after the acquittal were not a complete record.
In relation to the vandalism of the flyscreens on Mr Stark’s house, he submitted that Mr Stark had given evidence of coming to court on a number of occasions trying to get an order, but being sent away a number of times. He submitted that when he finally got in front of the registrar, the registrar said it was too late.
He referred to the uncertainty as to Ms Hillam’s prognosis. He submitted that, given that uncertainty “there needs to be some mutuality best achieved by an order that she is aware applies to her as much as it applies to him”.
Mr Selby drew attention to the fact that the magistrate had seen and heard Mr Stark and that Mr Stark’s evidence was that he did not wish to have any contact with Ms Hillam ever again. The evidence of Ms Hillam’s father was that she wants to have no contact with Mr Stark. He submitted that in those circumstances “there is no need for any orders by anybody against anybody”, but that if the magistrate disagreed then an order should be short and should apply to both parties as mutual protection.
Reasons of magistrate
The magistrate indicated that he was reserving his decision on the application brought by Ms Hillam (FVO 377/2020). He indicated that he dismissed the application brought by Mr Stark (FVO 120/2021) and gave his reasons in relation to that decision.
He indicated that the application stated that the respondent had texted other people claiming that the applicant was a rapist but no evidence was adduced on that point.
Mr Stark complained that Ms Hillam had been behind him at Woolworths. The magistrate said that even considered in the most favourable light, the evidence “cannot amount to family violence and is not enough to sustain an order”.
In relation to the flyscreen allegations, he said that there was no evidence that would allow him to draw an inference that it was Ms Hillam that did that.
He referred to a further allegation “that there is a history of making fabricated allegations to police and to the applicant’s acquaintances”. His Honour rejected that and said that it could not be supported by the verdicts of Loukas-Karlsson J. That was because it was clear that her Honour found beyond reasonable doubt that Ms Hillam did not fabricate allegations of sexual intercourse without her consent despite the acquittal.
He then addressed the submission that mutual orders should be made. The magistrate said “I can find nothing in the Family Violence Act that would allow a family violence order to be made on the basis that a respondent has a severe mental illness as providing a basis for a family violence order.”
He then said that there was a submission that the application was frivolous. He expressed the view that “this application was foredoomed to fail” and that it was appropriate to make an order for costs against the applicant pursuant to s 73 of the FV Act.
Mr Selby submitted that although the application for such an order was foreshadowed, the application was not made and he had not been heard. The magistrate said that “there was an application for costs made by Mr Fraser during his submissions based on his submission that the application was frivolous” but indicated that he was prepared to hear submissions from Mr Selby on that issue. Mr Selby said that no application had been made and submitted that there was nothing frivolous about someone who comes to the registry of the courthouse repeatedly to ask for an order, is sent away and when they finally get in front of somebody are told it is too late. He submitted that the appropriate procedural thing to do was to deal with the question of costs when the reserved decision was delivered. He submitted that there was an issue of fact as to how much of the hearing had been spent on the other application. He submitted that “frivolous and vexatious” had a particular meaning and it was necessary to make some “considered submissions”.
The magistrate checked with Mr Fraser that he was making an application under s 73. His Honour said that in circumstances where that had not been picked up by Mr Selby it was appropriate that he be given a full opportunity consider that application. He indicated that he would simply refuse FVO 120/2021 and leave any further issue of s 73 until he gave a final decision on the other application. Mr Selby was asked whether that preserved his position satisfactorily and said: “That seems to me to be entirely fair, your Honour.”
Email of 1 June 2021
On 1 June 2021 the associate to the magistrate sent to the parties an email indicating that the magistrate wished to deliver his decision on 4 June 2021. The email included:
In preparing this decision, I have made enquiries with the Protection Unit registry regarding the previous attempts made by [Mr Stark] to obtain an order against [Ms Hillam]. The court has no record of any attempts made except FVO 120/2021 which was dismissed at hearing on 13 May.
In light of this, his Honour is minded to allow parties the opportunity to make written submissions addressing this issue. These can be provided via email to [email address set out] as soon as possible.
Hearing on 4 June 2021
The matter was listed again on 4 June 2021. Mr Stark made an application that the magistrate recuse himself “on the grounds of both actual and apprehended bias”. He then indicated that if the magistrate did not recuse himself then he wished to call Mr Stark to give evidence “in response to the enquiry apparently made by you or your associate to the effect that my client had not made another application for an order against [Ms Hillam]”.
The magistrate referred to s 65 of the FV Act and the submission that had been made on behalf of Mr Stark that the numerous previous applications for a family violence order were relevant to the issue of costs. His Honour said that was the reason why the court had made an enquiry and that there was no record of those applications. He indicated that it was a matter for Mr Selby whether he wished to pursue an application to recuse himself but that was the rationale behind the enquiries that were made.
There was a discussion of the absence of any records of such applications in the court registry and the evidence that Mr Selby anticipated his client would give of having attended the registry on five or six occasions and having been taken before a Deputy Registrar.
There was some discussion of timing. The magistrate indicated that he also attempted to obtain the decision of the ACAT but obtaining access to the decision was precluded by an ACAT order. While attempting to obtain a date for the further application, Mr Selby indicated that his client had come to court on 28 January 2021 and thought that the name of the Deputy Registrar was Deputy Registrar Lee but he was not sure. Mr Selby indicated that he had no objection to the magistrate making enquiries of the registry as to whether or not an application was filed on 28 January 2021. He also said there had been other occasions when he attended the registry beginning in October 2020.
Directions were made about the provision by consent of the ACAT decision, the investigation by the registry of any application for a family violence order and the filing of written submissions. The matter was listed for 28 September 2021.
Hearing on 7 October 2021
Both Mr Selby and Mr Fraser appeared by audiovisual link. The court had received their written submissions. Mr Selby indicated that he did not wish to add to what had been put in writing. Nor did Mr Fraser. His Honour then gave his reasons.
He indicated that he refused the application to recuse himself. He referred to passages from the decision in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (wrongly attributing one of them to Re JRL; Ex parte CJL (1986) 161 CLR 342). He then addressed each of the arguments put forward as grounds for recusal.
The first appears to have been that he had paid insufficient attention to the transcript of the trial before Loukas-Karlsson J. His Honour indicated that he had read the transcript of the trial and the retrial.
He then addressed a submission based upon the way in which the issue of costs was dealt with. He indicated it was clear from the transcript that Mr Fraser had made an application for costs. He identified that Mr Selby had not picked up that fact. He said that he had reversed the costs order and invited further submissions. Those circumstances were not a basis for recusal. He said it was up to counsel to decide what submissions to make and it appeared from some of the language used by Mr Selby that “the case was almost being thrown away”.
He then addressed a submission based upon the enquiries made in relation to evidence given by Mr Stark of his applications for a family violence order. His Honour understood the submission as being a complaint that this was done in some way to undermine Mr Stark. He indicated that “nothing could have been further from the truth” and that he made the enquiries out of concern that Mr Stark may have a grievance about the court processes or was disadvantaged in some way, or that the matter was material to the question of costs. He had expected that there would be a number of files that could be identified. He rejected the submission that this action was taken as a result of any pre‑judgment. He said that it was clear that s 65 of the FV Act allows the court to make that type of enquiry. He distinguished the position under s 65 from the common law position in relation to a court making its own enquiries. He enquired of Mr Selby as to whether he had dealt with all of the matters raised and Mr Selby confirmed that he had.
His Honour then enquired as to whether there would be any further evidence. Mr Selby indicated that that he did not wish to call further evidence from his client.
His Honour indicated that he would then give his reasons in relation to the substantive application, being Ms Hillam’s application for an FVO, filed 16 April 2020. Mr Fraser made and then withdrew a submission as to the appropriate length of any order that was to be made.
The magistrate then commenced to give his reasons. Those reasons extended over four pages of transcript.
His Honour referred to the application which identified “sexual assault, March 2019” as the basis for the order.
He indicated that it was made clear by both counsel that a key factor was consideration of the evidence in the two criminal trials before Loukas-Karlsson J.
He referred to the fact that he had read the transcript and paid close attention to the evidence of Mr Stark. He referred to Loukas-Karlsson J’s decision which involved verdicts of not guilty on the charges of sexual intercourse without consent. He noted that her Honour found proved beyond reasonable doubt that the sexual intercourse took place, that the accused intended for that sexual intercourse to take place and that the complainant did not consent. It was only as to recklessness that her Honour was not satisfied beyond reasonable doubt.
His Honours reasons provided:
I have considered his evidence very closely and reflected on the evidence that he gave in court. In my view, his evidence on the issue of consent and his knowledge of consent was highly unsatisfactory at trial. The pretext call that was adduced by the Crown was, in my view, highly telling and, in particular, for the counts on the 16th which I will just recount accurately. So count 4 and count 5, which were allegations of digital and penile penetration of her vagina while she was asleep. The pretext call, in my view, made it very clear that [Mr Stark] was well and truly aware of the issue of lack of consent in their sexual relationship; that is, having intercourse with the complainant while she was asleep. In my view his evidence at trial was simply not believable, and I’m there referring to pages 259 of the original trial transcript and 260.
In my view, in cross examination [Mr Stark] performed so poorly that he was unbelievable in his denials of a lack of consent, so on the civil standard, in relation to counts 4 and 5, I make a positive finding that there was recklessness as to consent based on that evidence.
He then referred to s 34 of the FV Act. He indicated that s 34(1)(b) was satisfied by the findings made by Loukas-Karlsson J beyond reasonable doubt. He referred to the submission that s 34(1) ought to be read down pursuant to s 34(2). He set out the terms of s 34(2)(a) and (b). He rejected the submission made by Mr Selby that s 34(2)(b) required an offence to be proved. He referred to the Explanatory Statement for the Family Violence Bill 2016 (ACT) which provided at page 15 that s 34(3) was included “to ensure that it was clear that the absence of a family violence offence should not prohibit the granting of an order if an offence has not been made out”.
In any event, his Honour indicated that he made a ruling on the balance of probabilities that an offence occurred. He said that once he had come to a conclusion on counts 4 and 5, it was unnecessary to make a determination in relation to counts 1, 2 and 3. He therefore made a final order in the terms of the SIO on the file.
He enquired from Mr Selby whether he had any submissions to make about the length of the order. His Honour indicated that it would normally start on the day it was made. Mr Selby indicated that he had made submissions about the lack of evidence to support the order but had nothing else to say. His Honour therefore ordered: “1) The application for recusal is refused; and 2) Final order made for two years from today.”
He indicated that he would have considered making a longer order if one was sought. He indicated that he had not taken that step of his own volition because it was a fundamental consideration of the Act that the least restrictive order be put in place. He indicated that two years should be sufficient time “for the air to clear and provide the appropriate level of safety to the applicant”.
He then turned to the question of costs. Mr Fraser sought costs. Mr Selby indicated that his client had been acquitted on all charges in September 2020 and it was only in March 2021, after the hearing date had been set down, that Loukas-Karlsson J’s reasons were published. He submitted in those circumstances there was nothing that brought into play the operation of the costs section of the Act and the normal rule should apply, that is, each party should bear its own costs.
His Honour then gave his reasons. He indicated that as at 17 March 2021 when Loukas‑Karlsson J’s reasons were given, “it should have been crystal clear, given the way her Honour made findings beyond reasonable doubt on the first three elements of counts 1 to 5, that the family violence order would be successful, given that, on any basis of a proper reading of the Act, there had been family violence.” He said that from 17 March 2021 there should be an order for costs because “once that decision had been consumed it should have been clear that there was no possible way that the application could have been opposed.” He therefore made order three which was: ”3) Costs awarded to [Ms Hillam] post 17 March 2021.”
He then turned to the costs of the cross application. He referred to the preliminary view that the application was “foredoomed to failure”. That was because “the bases of the application, individually and in combination, fell way short of anything that was going to get near the imposition of a family violence order.” His Honour referred to s 73 of the FV Act and said that he would not go as far as to say the application was vexatious, but it was certainly frivolous. As a result, he awarded costs of Mr Stark’s application to Ms Hillam.
Submissions
The appellant submitted that the magistrate had revealed, by email from his associate, that he had made evidential enquiries without any prior notice to the parties. This led to the appellant making a recusal application. The appellant submitted that statements made in Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824 at [18], [21] and Russell v Eaton [2020] VSCA 249 at [59] indicated that the actions of the magistrate showed an apprehension of bias and actual bias. He relied upon the written submissions which he had made to the magistrate.
Those submissions identified that the allegation of pre-judgment flowed from the magistrate’s conduct at the hearing on 13 May 2021 and part of the content of an email sent by the magistrate’s associate to the parties on 1 June 2021.
The written submissions identified the facts that were relied upon. In summary, those were identified in the submissions as follows:
(a)The parties first appeared before the magistrate on 25 February 2021 prior to the publication of Loukas-Karlsson J’s reasons. As a result of discussions between the parties about the need to read the transcripts of the jury trial and the judge alone trial, the matter was listed on the basis that there would be one day for the magistrate to read the transcripts and one day for a hearing.
(b)It was said that at the commencement of the hearing on 13 May 2021 the magistrate indicated that he had read the reasons for the acquittal and various interlocutory applications but did not make any reference to reading any part of the transcripts.
(c)The mother of Ms Hillam was present in the courtroom throughout the proceedings but was not called to corroborate the evidence of Ms Hillam’s father or refute evidence of Mr Stark that she had requested Mr Stark to follow her daughter to the O’Connor shops.
(d)Ms Hillam’s father had admitted that his daughter had told him of seeing Mr Stark at Woolworths. He had not told his solicitor of that event. This showed that Ms Hillam’s claim of fearing Mr Stark were “groundless” and her preparedness to compromise Mr Stark’s ability to abide by his bail conditions.
(e)Mr Stark gave evidence of well-grounded fears arising from the Woolworths incident and damage to the window screens on his family home being slashed during the judge alone trial.
(f)Mr Stark gave evidence of his attempts between October 2020 and late January 2021 to secure a protection order against Ms Hillam. It was not put to him that he invented these attempts.
(g)At the conclusion of Mr Selby’s address he had enquired whether there was anything else that the magistrate wished him to address and the magistrate said there was not.
(h)The magistrate indicated that he would reserve his decision on Ms Hillam’s application but dismissed Mr Stark’s application and awarded costs against him. Following submissions from Mr Selby, the magistrate indicated that he would treat his remarks in relation to costs as being his preliminary views.
(i)By email from his associate on 1 June 2021 the magistrate indicated that he had made enquiries of the registry.
(j)On 2 June 2021 Mr Selby replied by email indicating his “intention to take instructions about making an application” prior to the magistrate handing down his reserved decision.
(k)There was a directions hearing on 4 June 2021 at which Mr Selby indicated that he would raise actual and apprehended bias.
The submissions involved a number of contentious propositions about the underlying merits of Mr Stark’s application and position in relation to Ms Hillam’s application.
(a)That it would have been apparent to anybody who had read the transcripts that were supposed to have been read that Ms Hillam’s account of what happened on the night of the alleged sexual assault was “a concoction”.
(b)That Mr Stark’s application was based upon his fears of Ms Hillam’s conduct that came from:
(i)Her deletion of text messages; her claim that Mr Stark had given her a sexually transmitted disease; her willingness to approach him in Woolworths.
(ii)The “selective vandalism” of his home.
(iii)Her refusal to have the SIO against him lifted following his acquittal “thereby allowing her to continue a history of false accusations and intimidation unchecked”.
For these reasons he submitted that “it was impossible to determine” Mr Stark’s application until the magistrate had determined Ms Hillam’s application.
In relation to the manner in which the issue of costs of Mr Stark’s application was dealt with, the submission was:
(a)there was no costs application before the magistrate;
(b)if there was, then “the proper time to consider it” was after the magistrate had given his decision on both matters and heard both parties as to costs; and
(c)Mr Selby had confirmed that there was nothing else that the magistrate wished to be addressed on and he was not asked to address him on costs. That was said to be “plain and simple ‘judicial pre-judgment’”.
In relation to the further enquiries made by the magistrate, it was submitted that these were relevant to the matter that he had already decided (Mr Stark’s application) as well as a matter yet to be decided (Ms Hillam’s application) as well as the issue of costs. This was said to involve recognition by the magistrate that “the decision to find [Mr Stark’s] application “‘frivolous or vexatious’ was too hasty and needed some substance” or alternatively that the evidence would support a final order for Ms Hillam and a costs order against Mr Stark because the evidence from the registry damaged his credit.
The appellant submitted that there was no challenge to Mr Stark’s evidence when he was in the witness box and if such an enquiry was to be made then the parties should have been heard in advance of that occurring. That was the approach adopted in relation to the ACAT decision.
The appellant submitted that the principle of legality meant that s 65 should be interpreted in a way that retained the common law rule that limited the capacity of the court to make enquiries of its own as set out in Cavanett v Chambers [1968] SASR 97.
The appellant also relied upon his other grounds of appeal but only to the extent to which they “particularised” the ground relating to recusal.
Grounds 3 and 4 in the notice of appeal contended that the magistrate had erred in failing to have “proper regard” to the evidence given at the hearing and in relying upon passages from the judgment of Loukas-Karlsson J. The submissions made on behalf of the appellant were to the effect of that the magistrate “chose to ignore” certain evidence and failed to accept certain submissions made on behalf of Mr Stark. The appellant also made detailed submissions suggesting that the reasons given by Loukas-Karlsson J for acquitting Mr Stark “were misleading”. This latter submission largely involved attacking the credit of Ms Hillam, asserting that she was a “a liar” who had “fabricated” her complaint to police, that her deletion of text messages from her phone was “deliberate, considered, and criminal” that she had engaged in a “wilful fabrication” of a story. These submissions are significantly more detailed than those made to the magistrate, particularly insofar as they criticise the judgment of Loukas-Karlsson J.
The respondent referred to the decision in Charisteas at [11] which required that a logical connection must be articulated between a matter and the feared departure from the judge deciding the case on its legal and factual merits. The respondent submitted that no such connection had been advanced.
Decision
In Charisteas at [11]-[12], the High Court articulated the general principles as follows:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice".
(Footnotes omitted.)
Kirby J observed in Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 509 [53] that a reasonable member of the public is “neither complacent nor unduly sensitive or suspicious”.
The application for recusal of the magistrate had three elements:
(a)the proposition that both matters ought to have been determined at the same time as opposed to what occurred;
(b)the manner in which the issue of costs of Mr Stark’s application was dealt with on 13 May 2021; and
(c)the making of enquiries of the registry in relation to the application is made by Mr Stark.
Each of these will be addressed separately and then the combined force of those matters will be considered.
It is not the case that his Honour was obliged to determine both applications for family violence orders at the same time. It was clearly open to him to deal with Mr Stark’s application immediately. The grounds for that application were limited and his Honour addressed each of them. In relation to the allegation that Ms Hillam had texted other people claiming that he was a rapist, His Honour found that no evidence of that was adduced. In relation to the Woolworths incident, his Honour concluded that “cannot amount to family violence and is not enough to sustain an order”. In relation to the allegation that Ms Hillam damaged flyscreens at his house, his Honour found that “there is no evidence that I could draw any inference from that would suggest that it was [Ms Hillam] that did that”. In relation to the allegation that Ms Hillam had “a history of making fabricated allegations to police and to the applicant’s acquaintances”, that was rejected in light of the conclusions of Loukas‑Karlsson J of non‑consensual sexual intercourse. He addressed the submission made by Mr Selby that mutual orders should be made for a short period and that this was favoured because of Ms Hillam’s mental health. He said that nothing in the FV Act allowed an order to be made on the basis that a respondent has a severe mental illness.
There was nothing wrong with his Honour’s approach. If it was possible for his Honour to dispose completely of one of the applications immediately then there was nothing wrong with his Honour doing so. The circumstances which made that appropriate in this case were that the articulated grounds for the order were slender and not so dependent upon broader findings of fact that the application could only be dealt with in the context of findings on those broader facts. The approach that his Honour took can be seen to have been contributed to by the approach taken by Mr Selby in his submissions. Those submissions did not place much independent emphasis upon the merits of Mr Stark’s application for an order. Rather, the emphasis in submissions was that if an order was to be made in favour of Ms Hillam, then given the uncertainty of Ms Hillam’s mental condition, “there needs to be some mutuality best achieved by an order that she is aware applies to her as much as it applies to him so that, for example, she’s not going to go to the [location] Woolworths. He works in [location] now. He wants to keep that job. He wants to get on with his life.”
So far as the issue of costs was concerned, there may have been some misunderstanding on the magistrate’s part or upon Mr Selby’s part. The issue of Mr Stark’s application being a vexatious one and possibly one made in bad faith was raised in submissions by Mr Fraser. Inappropriately, Mr Selby sought to interrupt Mr Fraser’s submissions at this point. Mr Selby was told by the magistrate that he would hear Mr Fraser’s submission to finality. The magistrate returned to the issue at the conclusion of Mr Fraser submissions. The following appears in the transcript:
HIS HONOUR: All right, thank you.
Mr Selby, you have a complaint about the submission that your client’s application is frivolous or vexatious.
MR FRASER: Your Honour, perhaps I should withdraw the frivolous and bad faith and leave it merely at vexatious only.
HIS HONOUR: And are you there referring to section 73, the costs provisions?
MR FRASER: Depending on your Honour’s finding, we would be looking to make an application. I am instructed to do so depending on your Honour’s findings.
HIS HONOUR: All right.
Mr Selby, you have a complaint about that submission?
MR SELBY: Your Honour, as I understand it, Mr Fraser will tell me if I am wrong, he has withdrawn the words “frivolous and vexatious” and said the case can be otherwise decided but he has---
MR FRASER: No, frivolous and bad faith, but we are still saying that it is vexatious.
MR SELBY: Right. So you’re not accusing me of bad faith, but you - right, okay.
HIS HONOUR: Yes, it is a criticism of your client’s application, not you.
MR SELBY: And he has indicated - he has now indicated that he is proposing to make a costs order.
MR FRASER: Depending on the court’s finding.
MR SELBY: Thank you very much, right. Okay, thank you for that. That has a direct effect on what I will be saying hereafter to your Honour, now that it has been foreshadowed as a possibility.
HIS HONOUR: Why would that be?
MR SELBY: Your Honour will see. Right, just bear with me, and you will see.
HIS HONOUR: All right.
Having regard to this exchange, it was certainly reasonably open for the magistrate to assume that Mr Selby was going to address, to the extent that he wished, the question of costs in his submissions. The magistrate had been specifically told that the fact that a costs application had been raised would affect the content of Mr Selby’s submissions and he indicated to the magistrate that how they affected his submissions would become apparent. On the other hand, the precise language used by Mr Fraser was also consistent with the costs application having merely been foreshadowed because it was contingent upon the findings made by the magistrate.
The different understandings of the magistrate and Mr Selby as to what the position was were exposed at the conclusion of the magistrate’s reasons and the indication that he would make a costs order against Mr Stark. At that point, Mr Selby raised the fact that he had not been heard in relation to costs. That resulted in the magistrate providing an opportunity to be heard and ultimately deciding to return to the application for costs once he had determined Ms Hillam’s application.
Having regard to what occurred during the course of submissions, there is no basis for saying that a reasonable observer might conclude that the magistrate might not bring an impartial mind to the issue of costs. The circumstances involved a straightforward misunderstanding by one or other or both of Mr Selby and the magistrate. It was resolved in a procedurally fair manner about which Mr Selby specifically recorded at the time that he had no complaint. It certainly did not provide a foundation for the submission made on the recusal application that, as a result of the magistrate indicating that there were no other issues that needed to be addressed, there was “plain and simple ‘judicial pre‑judgment’”. The suggestion that his Honour had deliberately not alerted Mr Selby to the fact that he had failed to address the question of costs because his Honour intended to make such a decision is inconsistent with any fair reading of what occurred. Only a lay observer who was unreasonably suspicious might think that this might be the case.
The third matter relied upon is the way in which his Honour addressed the further enquiries made to the registry. This must be understood in the context of s 65 of the FV Act which provides:
65Court may inform itself
The court may inform itself in any way it considers appropriate in a proceeding for a family violence order.
That must be read with s 13A which provides that the Magistrates Court need not comply with the rules of evidence applying in the ACT in a proceeding under the FV Act.
His Honour relied upon s 65 in making the enquiries of the registry that he did. He then accorded procedural fairness to the parties by disclosing what he had done and the information that he had obtained and giving them an opportunity to make submissions addressing that issue.
When addressing the misunderstanding in relation to costs on 13 May 2021, Mr Selby had made specific reference to Mr Stark having attempted to make an application for a family violence order but being turned away by the registry. He said:
… And what’s more, your Honour, with the greatest respect, evidence came from [Mr Stark] about what happened during the trial and how he came here and what happened to it. There is nothing frivolous about somebody who comes to the registry of this courthouse repeatedly to ask to get an order and is sent away and finally gets in front of somebody and told it’s too late. That, with the greatest respect, is neither vexatious nor frivolous.
The email from his Honour’s associate tends to indicate that his Honour considered the information relevant to his decision on Ms Hillam’s application (“In preparing this decision…”). However, in his reasons for dismissing the application for recusal, his Honour indicated that he had made enquiries because Mr Selby had made submissions referring to it in relation to costs. His Honour said “The reason for looking for these materials was to understand your submission on costs, nothing more.” In his reasons on 7 October 2021, his Honour indicated in relation to the enquiries:
There appears to be a complaint that this was done in some way to undermine him. With the greatest of respect to counsel, nothing could have been further from the truth. Those enquiries were made out of a genuine concern that [Mr Stark] had, in some way, a right to a grievance about the court processes, or that he had been disadvantaged in some way, or the matter was material to his costs as counsel had submitted.”
Having regard to the submission that had been made on 13 May 2021, the manner in which the enquiry was explained on 4 June and 7 October 2021 and the opportunity given to the parties to address the consequences of the enquiry, it is not a case in which a reasonable lay observer might consider that the magistrate might not bring a fair mind to the resolution of the case. His Honour was entitled to make enquiries. He was not compelled to seek consent from the parties prior to making the enquiries. The decision in Cavanett, which did not involve an equivalent statutory provision, does not compel such a conclusion. The magistrate afforded the parties procedural fairness. The approach taken by his Honour was consistent with the legislation and did not give rise to any apprehension of bias on his part. The submission that the making of enquiries demonstrated that the magistrate was “too hasty” in dismissing Mr Stark’s application or that it was done for the purpose of damaging the credit of Mr Stark are matters which could arise in the mind of an unduly suspicious lay observer but not a reasonable one.
In reaching this conclusion, I have not accepted the submission that s 65 is qualified by the general principles applicable in the absence of such a provision articulated in Cavenett. While I accept that there is nothing in the statutory provision that would displace the obligation to accord procedural fairness, the provision is not qualified by any requirement that the parties consent to the court informing itself or that they are notified in advance of the court doing so. So long as the parties are accorded procedural fairness the court may deal with the issue in a manner that it considers appropriate in the circumstances. That will often involve raising the matter in advance of the parties, but not necessarily so. In the present case, it is notable that as a result of enquiries, Mr Stark foreshadowed that he may wish to give further evidence and the magistrate gave him an opportunity to do so but ultimately the opportunity to give further evidence was not taken up.
When the three matters relied upon by the appellant are considered together, they gain no greater weight than they have individually. A reasonable lay observer would understand that the magistrate had decided Mr Stark’s application adversely to him but would not apprehend that it might be the case that the decision or his subsequent decisions in relation to Ms Hillam’s application or in relation to costs might be affected by matters other than the magistrate’s consideration of the relevant facts and the relevant law.
No error has been shown in the manner in which his Honour addressed the application for recusal.
It is necessary to say something briefly about the appellant’s reliance upon his other grounds of appeal in order to “particularise” the ground relating to recusal. Insofar as the appellant asserted a failure to have regard to the evidence led orally at the hearing (ground 3), that evidence was largely directed to subsidiary grounds for the making of an order, that is, issues other than the occurrence of non-consensual sexual intercourse. The basis upon which the magistrate ultimately made the order was that he was satisfied on the balance of probabilities that Mr Stark had both engaged in non‑consensual sexual intercourse with Ms Hillam and had been reckless. He reached this conclusion based upon his review of the evidence in the criminal trials and the judgment of Loukas‑Karlsson J. He placed significant weight upon what was said in the pretext call and his assessment of the evidence given in the criminal trial by Mr Stark. There was nothing unorthodox about the approach that he took. Indeed, by focusing upon the terms of the pretext call and the evidence given by Mr Stark attempting to explain what he said, the magistrate focused attention on the most significant pieces of evidence. Insofar as there was criticism of the reasons given by Loukas‑Karlsson J (ground 4), the submissions made in this court went far beyond those made to the magistrate in their length and level of detail. In a case where any substantive errors are only relied upon in order to support an assertion of bias, that will not be demonstrated by a failure on the part of the magistrate to address submissions that were not made to him at the hearing below.
Orders
Having failed on the only ground of appeal that was pressed, the appeal must be dismissed. The orders of the Court are:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs.
3. Order 2 does not take effect for a period of 14 days and if, within that time, either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the Court.
| I certify that the preceding one hundred and eighty‑six [186] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 October 2022 |
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