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Queensland Judgments
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  • Unreported Judgment

Jones v Commissioner of Police

 

[2019] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

Jones v Commissioner of Police [2019] QDC 148

PARTIES:

FRANK RANDAL JONES

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

D4 of 2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

21 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2019

JUDGE:

Sheridan DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where  appeal pursuant to s 222 Justices Act 1886 (Qld) –  where appellant convicted for breaching temporary protection order  - where challenge to findings of witnesses’ credit by learned magistrate  – whether conviction supported by the evidence

Justices Act 1886 (Qld) s 222

Devries v Australian National Railways Commission [1993] HCA 78, cited

Fox v Percy (2003) 214 CLR 118, cited

McDonald v Queensland Police Service [2017] QCA 225, cited

White v Commissioner of Police [2014] QCA 121, cited

COUNSEL:

The appellant was self-represented

Mr Hood for the respondent

SOLICITORS:

The appellant was self-represented

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    The appellant was convicted on 6 March 2019 after a summary trial in the Gympie Magistrates Court held on that day. The conviction was for breaching conditions 6 and 7 of a temporary protection order made on 25 June 2018 which prohibited him contacting, approaching or following the aggrieved, his ex-partner. Written submissions were filed on behalf of the respondent and further submissions were made by each party on the hearing of the appeal.

Background

  1. [2]
    A temporary protection order was first made by the Gympie Magistrates Court on 28 May 2018 on the ex parte application of the ex-partner.  That order was subsequently varied on 25 June 2018.  The varied order was served on the appellant at 9.00am on 26 June 2018.  The offending is said to have occurred later that day at the Gympie Post Office. 

Mode of appeal

  1. [3]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides: 

If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge. 

  1. [4]
    Pursuant to s 223, the appeal is by way of rehearing on the original evidence, with any new evidence to be adduced by leave.
  1. [5]
    The rehearing requires this court to make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.[1] The process involves a review of the record of proceedings below, rather than a completely fresh hearing.[2]
  1. [6]
    In such an appeal, the appellant must establish some legal, factual or discretionary error.[3]

Grounds of appeal

  1. [7]
    The Notice of Appeal states the ground of appeal as being “unsatisfactory and unsafe conviction verdict.”
  1. [8]
    In submissions, the appellant says that the discrepancies in the evidence of the prosecution witnesses were such that the learned magistrate should not have accepted their evidence.
  1. [9]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ commented on the correct approach of an appellate court where findings of fact based on credibility are challenged and stated:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[4]  

  1. [10]
    In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ in referring to the correct approach stated:

… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute.  In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”[5]  

  1. [11]
    The court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”.[6] 

Facts

  1. [12]
    The prosecution called the ex-partner, Ms Sleeman, a person who worked at the Post Office, and Sergeant Murphy. The ex-partner’s evidence was that she was near the Post Office at or about 1.00pm on 26 June 2018 when she saw the appellant. Her evidence was that she panicked and entered into the external corridor of the Post Office. The ex-partner said that the appellant followed her and then started questioning her. She says he asked, “Why did you close the post office box?”, “What is your new number?” and “Where are the kids?” She says she responded to some of his questions.
  1. [13]
    Ms Sleeman testified that she knew the appellant as a customer of the post office. She could remember the occasion though could not remember the precise date. She recalled a conversation on a previous occasion with a co-worker about the appellant’ access to the post box which was in his ex-partner’s name.
  1. [14]
    Ms Sleeman says that she recalls hearing raised voices from the external corridor, being a male and female voice, and that she recalled hearing some of what was being said. She could recall the female voice saying, “Why are you here? You’re not meant to be here”, and a male voice sort of saying, “Why did you do this?” Ms Sleeman said she could not say whose voices she heard “100% percent”. Ms Sleeman said the post office had cameras and stated, “We could see that there were only two people in the corridor” and when she walked out the back she saw the appellant walking out. She did not see the ex-partner but subsequently the ex-partner came into the Post Office asking about cameras.
  1. [15]
    The evidence of Sergeant Murphy under cross-examination was that he had been advised by the post office staff that the camera was a dummy camera. He added, “There was no footage on the camera.”
  1. [16]
    The defence case was that the appellant had not approached or spoken with the ex-partner that day. The appellant admitted to having been at the Post Office that afternoon. The appellant says he was parked in Young Street and needed to go along the corridor to return to his car. He said he was walking with the assistance of crutches because he had a broken leg. He said on seeing his ex-partner in the corridor of the Post Office, he waited for a period before entering the corridor which was the easiest way back to his car. He admitted to his ex-partner being 10 metres ahead of him as he entered the corridor. He said his ex-partner exited the corridor and turned left and he turned right. He said he did not speak to her.

Decision of learned Magistrate

  1. [17]
    In giving his decision, the learned Magistrate said that in looking at all three witnesses, he found that he believed the evidence of the ex-partner that the defendant did have a conversation with her in the general terms of what she alleges. He found her to have been corroborated to an extent by the evidence of Ms Sleeman. However the learned Magistrate stated that, “Even if I would be wrong in that, then even on the appellant’s own evidence, he followed her. He says he had no option.” The learned Magistrate found that The appellant did have options; options which he had referred to as being an option to simply wait or to have walked a different route, even though he was on crutches.
  1. [18]
    In those circumstances, even if the evidence of Ms Sleeman should be doubted, the learned Magistrate found the breach proven.

Discussion

  1. [19]
    Primarily, it was submitted that the evidence of Ms Sleeman should not be accepted because of the evidence of Sergeant Murphy in relation to the camera.
  1. [20]
    The evidence by Ms Sleeman suggests that when she was referring to what “we could see”, she was in fact referring to what other staff could see because she later said that she could not see the camera from where she was sitting. That conclusion is reinforced by one of her answers in cross-examination.
  1. [21]
    The evidence of Sergeant Murphy, under cross-examination, that there was no footage on the camera suggests that he examined the camera himself.
  1. [22]
    No person, such as Ms Sleeman, who may have had first-hand knowledge regarding the camera, was asked about it. There was no footage tendered as evidence. Whether or not it was simply a rolling camera which did not record could be inferred from the combined evidence of Ms Sleeman and Sergeant Murphy. Equally open is the possibility that the ‘camera’ neither allowed postal workers to view the corridor or recorded events in the corridor and Ms Sleeman was mistaken about the presence of the camera that day. It is clear from her evidence that at some point the number of cameras at the post office was increased.
  1. [23]
    In any event, it would seem that Ms Sleeman did not rely upon the camera, but upon what she heard and what she saw when she went into the corridor in giving her evidence. Even if there is one part of Ms Sleeman’s evidence which should not be accepted, that does not mean other parts of her evidence should not be accepted
  1. [24]
    Contrary to what is submitted by the appellant, Ms Sleeman did not suggest that she had had a conversation with him about the post box either that day or on a previous occasion. Her evidence related to conversations with other postal workers about his post box.
  1. [25]
    Finally, the evidence of Ms Sleeman was not critical to the conclusion of the learned magistrate that the breach was proven beyond reasonable doubt.
  1. [26]
    The version of events as given by the ex-partner is not inherently improbable. There is nothing which suggests the learned magistrate palpably misused his advantage in seeing the witnesses give evidence to reach his conclusion. It is not improbable that the appellant upon seeing his partner would have asked her questions about the post box. There is a high degree of similarity, as the learned magistrate found, in the evidence of the ex-partner and Ms Sleeman in this respect.
  1. [27]
    There was no dispute that, at least for a period, the appellant followed his ex-partner. That itself was a breach of the protection order. It might be considered a technical breach but those orders are designed to prevent contact and a person conscientiously seeking to avoid a breach would easily find a way to do so; as the learned magistrate found.
  1. [28]
    For these reasons, the finding that the breach was proven beyond reasonable doubt was supported by the evidence and according to law. I therefore dismiss the appeal.

Footnotes

[1]White v Commissioner of Police [2014] QCA 121, [6]; McDonald v Queensland Police Service [2017] QCA 255, [47].

[2]White v Commissioner of Police [2014] QCA 121, [8]; McDonald v Queensland Police Service [2017] QCA 255, [47].

[3]White v Commissioner of Police [2014] QCA 121, [8]; McDonald v Queensland Police Service [2017] QCA 255, [47].

[4][1993] HCA 78, [10]. 

[5](2003) 214 CLR 118, [28].  

[6]Ibid, [29].

Close

Editorial Notes

  • Published Case Name:

    Jones v Commissioner of Police

  • Shortened Case Name:

    Jones v Commissioner of Police

  • MNC:

    [2019] QDC 148

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    21 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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