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Harvey v Queensland Police Service

 

[2018] QCA 64

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Harvey v Queensland Police Service [2018] QCA 64

PARTIES:

HARVEY, Barry Bernard
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

CA No 31 of 2017

CA No 32 of 2017

CA No 33 of 2017

CA No 34 of 2017

CA No 35 of 2017

DC No 689 of 2016

DC No 690 of 2016

DC No 691 of 2016

DC No 692 of 2016

DC No 693 of 2016

DC No 694 of 2016

DC No 695 of 2016

DC No 696 of 2016

DC No 697 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Applications for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2017] QDC 7, [2017] QDC 8, [2017] QDC 9, [2017] QDC 10, [2017] QDC 11

DELIVERED ON:

6 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2017

JUDGES:

Sofronoff P and Fraser JA and Brown J

ORDERS:

Applications for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was convicted in the Magistrates Court of various contraventions of temporary protection and domestic violence orders, public nuisance, using a carriage service to menace, harass or cause offence and failing to surrender into custody in accordance with an undertaking he had given – where the applicant filed five applications for an extension of time within which to appeal under s 222 of the Justices Act 1886 (Qld) in respect of his convictions – where the applications for an extension of time within which to appeal were refused by the District Court – where the applicant seeks to challenge these refusals pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where leave will only be granted where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)

COUNSEL:

The applicant appeared on his own behalf

J A Wooldridge for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  The applicant, Barry Bernard Harvey, has applied for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld).  There are five such applications, each of which arise from decisions of Reid DCJ.

Proceeding CA31/17

  1. On 8 December 2014 the applicant pleaded not guilty to six charges before Magistrate Quinn.  Four of these charges alleged contraventions of a temporary protection order made on 18 March 2014.  The other two charges alleged contraventions of a temporary protection order made on 24 June 2014.  The charges are set out at pages 24 and 25 of the application book and it is not necessary, for the purposes of these reasons, to refer to them in any more detail.
  2. The contraventions were constituted by the applicant’s sending of emails to persons named in those orders.
  3. For the purpose of explaining the decision in this case it is sufficient to refer to one of these orders insofar as it is relevant.  The order made on 18 March 2014 said, relevantly:

“Respondent: Barry Bernard HARVEY.

Aggrieved: [Name Redacted]

Named Person/s Protected by this Order:

Child of the Aggrieved: [Name Redacted]

Relative of the Aggrieved: [Name Redacted]

Relative of the Aggrieved: [Name Redacted]

It is ordered that:

  1. The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
  • -This condition does not apply to the extent that it is necessary for the respondent to appear personally before a Court or Tribunal.
  • -This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court.
  1. The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the named person/s.
  2. The respondent is prohibited from making telephone calls or sending text messages to the aggrieved.
  3. The respondent is prohibited from making telephone calls or sending text messages to the named person in this order.”
  1. The learned magistrate, Magistrate Quinn, found that the two temporary protection orders had been lawfully made.  He found that the emails relied upon by the prosecution had been sent by the applicant on the date and at the time they respectively bore and had been sent intentionally.  He found that they had been sent to each of the persons to whom they were respectively addressed.  He found that the emails had been received by those persons.  The learned magistrate found that each of the recipients had been a named party in the relevant orders.  His Honour also found that the defendant had been served with the orders and was aware of their contents.
  2. The emails were in evidence and the learned magistrate found that the emails which were exhibits 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 42 and 54 constituted contraventions of the two protection orders.  His Honour was not satisfied that the remaining emails constituted such contraventions and, as a result, acquitted the applicant on one of the charges.
  3. His Honour concluded that the applicant’s intention in sending the emails “was to abuse, harass, intimidate and to be offensive” to the recipients.  His Honour quoted from one of these emails, dated 17 July 2014:

“Conduct money for you low cunts allowing my son to be physically abused by [The Aggrieved under the order] and exposed to death by firearms by [Relations of Aggrieved] and the psychological abuse of [Relation of Aggrieved] and [Name Redacted].”

  1. At the trial the applicant raised four defences.  First, he said that s 31 of the Criminal Code, the defence of compulsion, excused him.  Second, he relied upon extraordinary emergency pursuant to s 25 of the Criminal Code.  Third, he said that his conduct in sending the emails was justified by the terms of an order made in the Federal Circuit Court to which it will be necessary to refer in due course.  Finally, although he did not in terms raise mistake of fact under s 24 of the Criminal Code, the learned magistrate considered that defence.  The learned magistrate found that s 24 had been excluded.
  2. The applicant has been in dispute with the mother of his son, who was born on 13 August 2011.  Judge Baumann of the Federal Circuit Court made parenting orders on 28 March 2014.  The order that his Honour made permitted the applicant at certain defined times to have access to his son whilst under supervision.  In addition, the order made provision for an agreement between the parties for further or different access.  In aid of the requirement that such access be supervised, his Honour ordered that at least 24 hours before the commencement of any visit the applicant was to advise the mother by text message the name of the person who will be present as a supervisor.
  3. Judge Baumann’s order was later superseded by an order of Judge Lapthorn of the Federal Circuit Court made on 19 August 2014.  At the hearing of the matter before Judge Lapthorn the mother had sought an order restraining the applicant from communicating with her.  The learned judge declined to make such an order because it was necessary for the applicant to be able to communicate with her at least for the purposes of the Family Court proceedings.  The learned judge observed that there was a domestic violence order in place addressing the mother’s concerns in this respect.  That was the reference to the orders that I have already referred to.
  4. By way of answer to the charges the applicant had also contended before Magistrate Quinn that the order made under the Family Law Act 1975 (Cth) authorised him to make the communications which had been the subject of the complaint.  The learned magistrate rightly dismissed these contentions.  The order made by Judge Baumann obliged the applicant to inform the mother by text message of the name of the person who would supervise the applicant’s visits with his son.  To that extent it is arguable that a communication limited to that subject could not have constituted a contravention of any order.  However, no order of the Federal Circuit Court authorised or required the applicant to communicate with the mother or any other person in the way that he did.  The applicant’s liberty to enter into such communications was constrained, as it is for everyone, by the general law.  The application of the law included, in his case, the terms of the temporary protection orders which prohibited communications.
  5. The learned magistrate was, in my respectful view, correct in rejecting the applicant’s submission in these respects.
  6. As a result of the learned magistrate’s findings and conclusions his Honour found the applicant guilty of five of the charges.  He acquitted the applicant of one of the charges.  The learned magistrate decided not to record convictions.  He released the applicant upon his entering into a recognisance in the sum of $500 conditioned upon his not committing any further offences and being of good behaviour for a period of six months.
  7. Those orders were made on 1 May 2015.  The good behaviour bond expired, therefore, on 1 November 2015.
  8. On 19 February 2016 the applicant filed in the District Court an application for an extension of time within which to file a notice of appeal under s 222 of the Justices Act 1886 (Qld).
  9. His draft notices of appeal filed in support of that application raised two grounds, as I understand those documents.  The first was that the learned magistrate was mistaken in dismissing the defence of extraordinary emergency.  Second, the applicant wished to argue that there was an inconsistency between the temporary protection orders and the orders of the Federal Circuit Court such that the former were invalid to the extent of any inconsistency pursuant to s 109 of the Constitution.
  10. These applications for extensions of time within which to appeal came on for hearing before Reid DCJ on 19 January 2017.  On 7 February 2017 his Honour gave judgment refusing to extend time.

Proceeding CA32/17

  1. On 13 July 2015 the applicant was found guilty in the Magistrates Court at Maroochydore of having committed a public nuisance.  He was ordered to perform 40 hours of community service.  The act constituting the public nuisance was the applicant stating, while in the public area of a police station, the words, “You’re all useless cunts, do your job.”  This was the beginning of an episode of abusive conduct involving repeated swearing.  The applicant was arrested.  The learned Magistrate who heard the case accepted the evidence of the prosecution witnesses as truthful.  Indeed, the applicant gave evidence and accepted that he had been swearing at police as alleged.
  2. The applicant applied for an extension of time within which to appeal to the District Court.  Like his other matters, this step was taken nine months out of time.  Reid DCJ refused the extension of time on the ground that there were little prospects of success in any appeal.

Proceeding CA33/17

  1. The applicant had been charged with two offences of contravening a domestic violence order by sending email correspondence contrary to the terms of that order.  By way of defence the applicant relied once again upon the terms of Judge Bowman’s order.  He was convicted.
  2. In refusing an extension of time within which to appeal to the District Court, Reid DCJ decided that there were no real prospects of success in the appeal.

Proceeding CA34/17

  1. On 20 November 2015 the applicant had been found guilty of one charge of contravention of a domestic violence order and another charge of using a carriage service to menace, harass or cause offence.  He had committed these offences by sending emails and making telephone messages to the complainant.  At his trial the applicant did not dispute sending the emails or making the phone calls.  Again he sought to rely upon an order of a judge of the Family Court to justify his conduct.  This defence was rejected.  He again sought an extension of time within which to appeal to the District Court and Reid DCJ refused his application on the basis that there was no reasonable prospect of success on appeal.

Proceeding CA35/17

  1. On 3 December 2015 the applicant was convicted in the Magistrates Court at Sandgate with having failed to surrender into custody in accordance with an undertaking that he had given.  The learned Magistrate found that the applicant had failed to show reasonable cause for his failure to appear.  A reading of the transcript of the proceedings which led to the conviction shows that the applicant did not seek to put forward any reasonable excuse.
  2. The applicant’s application for an extension of time to appeal to the District Court was one and a half months late.  His Honour concluded that there were no prospects of success on the appeal and refused to extend time.
  3. The applicant’s applications for leave to appeal to this Court pursuant to s 118(3) all state identical grounds.  They are as follows:

“The grounds of my application are –

  • DCJ Reid erred in not allowing my extension of time due to my diagnosed mental health reasons and new exculpatory Police evidence that evidences my illness and shows my little boy and I are the victims of the aggrieved and her use of DV, physical, psychological, financial and co-ercive as her application was deceptive and her use of DV was during and after our marriage as continues as you read this;
  • DCJ Reid erred in not allowing exculpatory new evidence, and in fact had already written his reasons for dismissing my appeal before considering whether to admit the new evidence;
  • DCJ Reid (and the DPP) admitted I held an honest emergent material concern for my little boy’s safety but erred in stating that emailing relevant people and using course language in discharging my duty to [Name Redacted] under s286 of the Criminal Code Act 1899 (QLD) (the Act) were not reasonable under s256 of the Act and the common law authority of emergency and necessity and under ss24, 31 of the Act.
  • DCJ Reid erred in not following Superior Court authority.”
  1. The first three grounds do not raise any matters capable of constituting a basis for the grant of leave in a case like the present because none of the material before his Honour or this Court supported them.
  2. The final ground was expanded in the grounds articulated in application 34/17 by reference to Monis v The Queen[1] in support of an asserted proposition that “insults do not constitute menacing, harassing or offensive conduct as per the relevant section”.
  3. This was not developed in argument and it is difficult to see how Monis, a case about the scope of the implied freedom of political communication guaranteed by the Australian Constitution, can have any bearing upon the applicant’s conduct in sending offensive non-political communications to the complainant.
  4. In these cases there is simply no basis upon which one could conclude that there has been any error on the part of Reid DCJ as could possibly justify granting leave to appeal.  Nor has there been any basis shown for concluding that the applicant has suffered any injustice.
  5. For these reasons I would refuse the applications for leave to appeal.
  6. FRASER JA:  I agree with the reasons for judgment of Sofronoff P and the orders proposed by his Honour.
  7. BROWN J:  I respectfully agree with the reasons for judgment of President Sofronoff and the orders proposed by his Honour.

Footnotes

[1]  (2013) 249 CLR 92.

Close

Editorial Notes

  • Published Case Name:

    Harvey v Queensland Police Service

  • Shortened Case Name:

    Harvey v Queensland Police Service

  • MNC:

    [2018] QCA 64

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Brown J

  • Date:

    06 Apr 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QDC 7 07 Feb 2017 Reid DCJ.
Primary Judgment [2017] QDC 8 07 Feb 2017 Reid DCJ.
Primary Judgment [2017] QDC 9 07 Feb 2017 Reid DCJ.
Primary Judgment [2017] QDC 10 07 Feb 2017 Reid DCJ.
Primary Judgment [2017] QDC 11 07 Feb 2017 Reid DCJ.
Appeal Determined (QCA) [2018] QCA 64 06 Apr 2018 Applications for leave to appeal refused: Sofronoff P and Fraser JA and Brown J.
Application for Special Leave (HCA) File Number: B19/18; B20/18; B21/18; B22/18; B23/18 03 May 2018 -
Special Leave Refused [2018] HCASL 223 15 Aug 2018 Special leave refused: Bell and Gageler JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)