A judge has overturned a prison term imposed by a magistrate on a man who sent a text message to his former partner requesting she pick up their kids from school – so he could prepare to defend a charge of breaching a separate domestic and family violence (DFV) offence.
Brisbane District Court Judge Bernard Porter KC last month set aside a one-month prison term handed to a man – identifiable only as LJV – for an offence of contravening a DFV order.
The court was told LJV was convicted after a summary trial in the Gympie Magistrates Court and served five days in pre-sentence custody before the presiding magistrate handed him a one-month jail term, to be released after time already served.
LJV appealed both his conviction and sentence under Section 222 of the Justices Act 1886 on the grounds the magistrate’s involvement in the conduct of the trial went beyond his role as a trial judge.
Judge Porter, in an eight-page decision published yesterday, said: “This is an appeal against the decision of a Magistrate to convict the defendant, LJV, of one breach of a domestic violence order.
“The breach was, in the scheme of things, a modest one.
“It was said to arise from a text sent by (LJV) to the aggrieved the day before (he) was to appear before the Magistrates Court in response to another charge of breaching that order.”
Police prosecutors told the court LJC sent a telephone text message to his former partner, while already prohibited from doing so by way of previously issued DVF order, saying:
Text message: “You will need to pick up the kids from school today as I need to prepare for court tomorrow morning to contest the bogus claims you have laid against their father in yet another alienation attempt. I will pick up the children as normal from school on Friday depening (sic) on the decision from the judge.”
Judge Porter said it was uncontentious at the trial the text was sent in circumstances where LJV was already before the court to be dealt with for a separate alleged breach of the DFV order.
He said the prosecution asserted the text was said to be in breach of the protection order in two ways:
(1) By breaching condition 1 of the order, which was made by consent without admissions in September 2019, was that the aggrieved be of good behaviour and not commit domestic violence against the aggrieved. Condition 1 is the standard minimum condition included in protection orders; and
(2) breaching condition 5 which provided that the respondent was prohibited from contacting, attempting to contact, or asking someone else to contact the aggrieved by any means whatsoever including by telephone, text or internet, except concerning parental or contact issues (but which could only be done by text message or email).
Judge Porter noted: “I fully recognise the pressures that Magistrates are under in the conduct of their difficult job. I fully recognise that they frequently do not get the assistance which might be available to this Court and the Supreme Court.
“However, the trial insofar as it related to condition 1, did miscarry. It miscarried because his Honour descended into the arena in a case where the Commissioner of Police was represented by a Police Prosecutor and (LJV) was represented by a solicitor.
“In that context, a Court has to be careful just how much it intervenes in a case, and should, resist the temptation to fill in gaps which the Court thinks might exist in the prosecution of the case.
“His Honour did not observe that limitation on the proper role of the Court, as I now explain.
“After the aggrieved had completed her evidence-in-chief and after the defendant’s solicitor had cross examined her, his Honour began examining the aggrieved at some length to adduce from her evidence of previous acts which his Honour thought was relevant to determining whether the email amounted to domestic violence.
“The aggrieved had already given fairly brief, and one might have thought not particularly persuasive, evidence about that issue and been cross examined on that limited evidence.
“The effect of his Honour’s intervention was to lead further, and quite significant, evidence in the prosecution case of previous alleged acts of domestic violence without any notice to the defendant’s solicitor.
“The defendant’s solicitor was then put in the position of having to decide what, if anything, he wanted to cross-examine further about. His Honour’s intervention continued despite objection from (LJV’s lawyer). When his Honour began his questioning, (LVJ’s lawyer) objected and his Honour said, ‘You’re objecting to my question’, and he said, ‘Yes. I am’. His Honour made the comment, ‘That’s a brave lawyer’.
“That was not a proper observation. It is part of the duty of a lawyer appearing in a case to assist the Court inter alia by identifying where, in the opinion of the lawyer, the Court is not complying with its duty to remain impartial between the parties at all times and to ensure a fair trial.
“There is numerous intermediate Court of Appeal judgments to that effect, mostly in the litigant-in-person situation. I point out that not only was (LJV’s lawyer) being brave, but he was also doing his duty.
“His Honour ought to have paused and thought about the wisdom of his intervention at that point.”
Judge Porter also noted that was not the end of the magistrate’s intervention in the evidence.
“At the end of the learned police prosecutor’s cross-examination, his Honour, in effect, cross-examined LJV as to his credit in respect of his evidence that he needed to see a solicitor to prepare for court the following day,” he said.
“His Honour seemed to do that by reference to matters his Honour was aware of in respect of previous mentions.
“As (counsel for LJV at appeal) pointed out, that went close to making his Honour a witness in the proceedings.”
Judge Porter granted LJV’s appeal on sentence – noting he had already served five days in pre-sentence custody – and ordered no further punishment be imposed.
He also convicted LJV of the offence, but did not record a conviction against him.
Read the decision.
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