Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

YTL v Commissioner of Police

 

[2019] QDC 173

DISTRICT COURT OF QUEENSLAND

CITATION:

YTL v Commissioner of Police [2019] QDC 173

PARTIES:

YTL
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

1071/2019

DIVISION:

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Richlands Magistrates Court

DELIVERED ON:

18 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2019

JUDGE:

Dearden DCJ

ORDER:

  1. Appeal granted.
  2. The conviction for the charge of contravene a domestic violence order (aggravated offence) be set aside.
  3. Order that the matter be remitted to the Magistrates Court, to be tried before a different magistrate, in the Brisbane Magistrates Court. 
  4. No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted after trial in the magistrates court of one charge of contravention of domestic violence order, aggravated offence – where the appellant was charged, convicted and punished for contempt of court – where the trial did not recommence when the appellant arrived late – where the appellant was denied the opportunity to cross-examine a prosecution witness – where the appellant was denied the opportunity to call an eyewitness in his own case – where the magistrate gave the appellant time limits within which to give his evidence and be cross-examined – whether a miscarriage of justice resulted

LEGISLATION:

Justices Act s 146, s 147, s 148, s 222(1), s 223

CASES:

Carrick v Queensland Police Service [2018] QDC 72

Dyers v The Queen (2002) 210 CLR 285

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Forrest v The Commissioner of Police [2017] QCA 132

McDonald v Holeszko [2018] QDC 204

McDonald v Queensland Police Service [2017] QCA 255

McKay v Dedman [2015] QDC 55

R v Apostilides (1984) 154 CLR 563

R v Manning [2017] QCA 23

Vakauta v Kelly (1989) 167 CLR 568

Whitehorn v The Queen (1983) 152 CLR 657

COUNSEL:

M Power for the appellant

S Carter for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    After trial, the appellant, YTL was convicted on one charge of contravention of domestic violence order (aggravated offence) and sentenced to 18 months’ probation, with a conviction recorded.[1] 

Grounds of appeal

  1. [2]
    The appellant’s Notice of Appeal identifies the following ground:

“1. The conviction for the offence was not supported by the evidence”.[2]

  1. [3]
    This court gave leave to the appellant to read and file an Amended Notice of Appeal at the hearing on 6 September 2019, which identified that the hearing magistrate was misidentified on the transcript, corrected that issue and substituted the following proposed ground of appeal: “The trial proceeded in a manner that was so unfair to the appellant that a miscarriage of justice resulted”.[3] 
  1. [4]
    In the appellant’s Outline of Submissions that ground of appeal was specifically articulated as follows:

“1. In his trial for contravening a domestic violence order, the appellant was denied a fair trial in that:

  1. (a)
    The trial, commenced in his absence, did not recommence when he arrived, but rather a summary of evidence was given by the magistrate;
  2. (b)
    The magistrate erroneously charged, convicted and punished the appellant for contempt during the trial;[4] 
  3. (c)
    The magistrate resumed the trial without consideration as to whether to recuse himself on the basis of real or apprehended bias;
  4. (d)
    The magistrate cut short the prosecution case denying the appellant the opportunity to cross-examine a direct eyewitness to the alleged event or any attending or arresting police officers;
  5. (e)
    The magistrate was strongly and unduly focussed on the need to dispense with the matter more quickly than was necessary due to the presence of interpreters;
  6. (f)
    The magistrate denied the appellant the opportunity to call a witness who had been summoned by the prosecution but not called in the prosecution case and refused to allow an adjournment to allow that witness to attend to give evidence; and
  7. (g)
    The magistrate said at the commencement of the appellant’s evidence, ‘… you’ve wanted the translator. This is wasting time… I’m going to give you a time limit on your – you’re going to have 15 minutes to give your evidence and you can have 10 minutes to cross-examine’.[5]  To define a time limit denied the appellant a fair trial.”[6]
  1. [5]
    The respondent concedes that the appellant was denied a fair trial for the following reasons:
  1. (a)
    The failure to recommence the trial upon the arrival of the appellant;
  2. (b)
    The appellant’s opportunity to cross-examine the eyewitness and a police officer who took the complainant’s statement was denied when the magistrate cut short the prosecution case;
  3. (c)
    The appellant was denied the opportunity to call the eyewitness in his own case;
  4. (d)
    The imposition of a time limit on the proceedings with the appellant being given 15 minutes to give his evidence in chief and the prosecution given 10 minutes to cross-examine the defendant.[7] 

Hearing

  1. [6]
    By consent, I granted the appeal when the matter came before me in a hearing on 6 September 2019, in the following terms:
  1. Appeal granted.
  2. Order that the matter be remitted to the Magistrates Court, to be tried before a different magistrate, in the Brisbane Magistrates Court. 
  3. Reasons reserved.
  4. No order as to costs.
  1. [7]
    These are the reasons that I indicated I would deliver in respect of that decision. I note further that, as a matter of caution, the term “appeal granted” should be followed by a supplementary order in these terms: “The conviction for the charge of contravene a domestic violence order (aggravated offence) be set aside”, which will be reflected in the orders made at the conclusion of these reasons.

Background

  1. [8]
    The charge of ‘contravention of a domestic violence order’ came for trial before the Magistrates Court at Richlands on 15 March 2019, and at the conclusion of that trial, the appellant was convicted and sentenced. The appellant’s Outline of Submissions helpfully summarises the proceedings in the following terms:

“8. The appellant was charged with contravention of a domestic violence order against his ex-wife.  The aggrieved gave evidence that for some reason that related to their son she needed to go to the police station.  The appellant, having seemingly also been advised of the need to attend the police station, attended the aggrieved’s house, argued with her, pushed her into the house, hit her with a television remote control, pulled her and ordered her to sit down.[8]  There was a witness, Mr [NKI], present for the incident but he was not called to give evidence in the trial. 

  1. The only witness called in the prosecution case was that aggrieved, although it was apparent that the prosecution had intended to call other witnesses.[9] 
  1. The trial commenced in the absence of the appellant [s 147 Justices Act 1886 (Qld)] as he arrived late to court.  Upon the appellant’s arrival the magistrate interrogated him about who had driven him to the court and the appellant’s failure to provide an answer saw the appellant taken into custody, charged with, convicted of and fined for contempt.  That process is also the subject of a separate, though related, appeal [appeal 1070/2019].”[10]
  1. [9]
    The appellant argues (and the respondent concedes) that the appellant was denied a fair trial, and that the conviction should be set aside and the proceedings returned to the Magistrates Court for a retrial. The appellant’s submissions in respect of the various issues identified are as follows:

Recommencement of the trial after contempt proceedings – apprehended bias

  1. The aggrieved’s evidence was interrupted for the contempt proceedings to take place. Upon resumption of the trial the magistrate ought to have considered whether to continue the trial and the manner by which that should occur.

13. While there was no application made for the magistrate to recuse himself, the appellant was self-represented and, therefore not cognisant of the need or ability to make such an application. Ordinarily the failure to make an application would be fatal to a successful appeal on the point.[11] Given that the appellant was self-represented it cannot be said that he held the point ‘up his sleeve’ to take issue with following an unfavourable verdict and it is a matter that should have been considered even in the absence of an application. Having charged and convicted the appellant of contempt,[12] the magistrate should have considered whether:

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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.’[13]

Mode of recommencement of trial after contempt proceedings – summary of evidence

  1. Rather than recommence the aggrieved’s evidence, which had been going for less than 12 minutes, upon resumption of the trial the magistrate elected to summarise the evidence given by the aggrieved.[14] At least some of the aggrieved’s evidence had been elicited by the prosecutor using leading questions that may have been objected to had the appellant been present to so object. The appropriate course, given that the appellant was self-represented, would have been for the aggrieved to recommence her evidence so that the appellant could hear the evidence itself and most effectively cross-examine her. Section 147 of the Justices Act 1886 (Qld) does not contemplate the situation where a party arrives mid-proceeding. The responsibility upon the magistrate to ensure a fair trial should have seen the evidence of the aggrieved started afresh.

Encouragement to cut short the prosecution case

  1. It is clear that the prosecution intended to call at least one police officer as well as Mr [NKI].[15] When the prosecutor proposed calling a police officer to prove the date of the offence, the magistrate amended [the] charge date without there having been an application for such an amendment or any submissions invited on the amendment.[16] This demonstrates that the magistrate took too active a role in seeking to hasten the prosecution case.
  1. A witness named [NKI] had been summonsed to court for the hearing by the prosecution and was, on the aggrieved’s evidence, a direct eye witness to the incident. The intention of the prosecution to call Mr [NKI] appears to have changed following, and as a result of, the magistrate’s comments about the diminishing time available with the interpreters and his continued focus on the need to progress the matter.[17] Following the hasty amendment to the charge dates the prosecutor said, “I probably won’t call the witness, then.”[18] It is unclear whether that reference was to the police officer or [NKI], but regardless, it demonstrates that the discretion of the prosecutor as to what witnesses were to be called was impacted upon by the magistrate’s conduct of the trial. It is a matter for the prosecutor as to which witnesses are called to prove the case and a magistrate cannot control that decision.[19] In R v Manning [2017] QCA 23 it was noted that:

“If a witness is able to give credible evidence about matters directly in issue, that alone would ordinarily suggest that the prosecutor should call the witness. A prosecutor should call all material witnesses, being those whose evidence is necessary to “unfold the narrative and give a complete account of the events upon which the prosecution is based.”[20]

  1. The prosecution should have been able to call what witnesses they proposed free from undue focus on the time the case was taking.

Absence of eye witness from defence case

  1. It is apparent on the record that there was reason for the appellant to have a reasonable expectation that the eye witness to the incident would be called to give evidence. Throughout the trial the magistrate and prosecutor made it clear that the witness have been issued with a summons to give evidence.[21] It became apparent after the appellant’s evidence that the witness, despite having been summonsed, had been sent away at some point during the day.[22]
  1. When the appellant said that the eye witness should give evidence the magistrate indicated that the witness would need to attend immediately and refused to grant an adjournment to allow the witness to be called.[23] This was done without hearing submissions from either party and without any reasons given. In Forrest v The Commissioner of Police [2017] QCA 132 President Sofronoff said:

It is fundamental that a judicial decision must be a reasoned decision and not an arbitrary one. If the process of reasoning is not exposed in written reasons then a reasoned decision cannot be distinguished from an arbitrary one.”[24]

  1. Adjourning the matter part-heard would have allowed an obviously relevant witness to attend to give evidence with the assistance of interpreters and without the need for the haste as was presenting itself throughout the trial. The appellant made the point that, “…he will say what he saw. He’s a witness who saw what happened and he will report…”[25] A relevant eye-witness could have been called in either the prosecution case or the defence case but was not, seemingly for reasons of expediency. That is not reflective of a fair trial having occurred.

Fairness to a self-represented party

  1. In McKay v Dedman [2015] QDC 55 there was a discussion about magistrates dealing with self-represented litigants:

[11] Self-represented parties present a particular challenge to courts. Frequently self-represented parties have no knowledge of Court process and, more importantly, what material may be relevant or irrelevant to the particular proceedings in respect of which they wish to participate. Courts must be careful in their dealings with them so as to ensure proceedings are conducted fairly and according to law. In MacPherson v R (1981) 147 CLR 512, it was noted that in fulfilling this duty it may require a Judge to give advice to the unrepresented litigant. So far as the test is concerned, it was formulated as such that: 5 “There is no limited category of matters regarding which a judge must advise an unrepresented accused—the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.”1

[12] Similarly in Kenny v Ritter (2009) 52 MVR 360, the Full Court of South Australia reviewed a body of authority addressing this issue. The majority Grey and Layton JJ at 23 in their judgment, having reviewed the authorities, made this observation: “These authorities clearly demonstrate that when the self-represented litigant is before the Court, the Judge must ensure that a fair trial takes place. In order to achieve this, the Judge is required to assist the self-represented litigant. However, the Judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained.”

[13] They then proceeded to identify the following significant principles which emerge from the authorities. Although his Honour Anderson J in a dissenting judgment came to a different view as to whether or not the trial Court had erred in its exercise of its responsibilities in that regard, his Honour agreed in principle with the principles identified by the majority, noting at [98]: “It is important that the trial Judge should, in my view, adopt a role which ensures that the litigation is completed in an orderly way but protects the

unrepresented party from any important omissions on key aspects of the case.”

  1. The magistrate in this case may be considered to have prioritised expediency over ensuring that there was a fair trial. This is demonstrated in the references throughout the trial as to the need to finish in accordance with the interpreters’ availability.

Time limits placed on proceedings

  1. The appellant indicated prior to lunch that he would be giving evidence in the trial. The fairness of the trial was impacted by the magistrate’s limitation of time for evidence and cross-examination. Before taking the lunch break the magistrate noted:

BENCH: At 2.45, we’re cutting it off.

INTERPRETER (DEFENDANT): Okay

BENCH: Okay. And so he has to – I’ll tell you now, sir. You have to be brief and get to the point, because, at 2.45, the evidence is coming to a close. But I’ll come back at 2 o’clock.[26]

  1. After resuming in the afternoon at the start of the appellant’s evidence the magistrate said:

“BENCH: Hang on. No. No. No. Stop. Stop. You’ve wanted the translator. This is wasting time. Okay. Because I’m – and I’m going to give you a time limit on your – you’re going to have 15 minutes to give your evidence and you can have 10 minutes to cross-examine.”[27]

  1. The transcript shows that the appellant’s evidence started at 2:06pm and at shortly before 2:21pm the magistrate said:

BENCH: All right. Anything else he wanted to say? I want to bring his evidence to a close now. We’re running out of time.[28]

  1. To impose such limitations upon a defendant’s evidence demonstrates that the trial was conducted in a manner that meant that the appellant did not receive a fair trial.
  1. The perceived need to hurry the proceedings is further evident in the remarks of the magistrate interspersed throughout the trial:

a.  BENCH: We’ve only got her booked for a certain amount of time.[29]

b. BENCH: Well, this is – this isn’t – you can tell me all this later, in evidence, if you want to. But right now, I need to get on and finish her evidence. We’ve got translators here. We need to finish her evidence.[30]

c.  BENCH: We are running out of time because you were late and you have caused all sorts of problems this morning, sir. This witness interpreter is only booked for four hours so get to the point.[31]

d. BENCH: Look, look, look, look, look, we’ve got limited time. Just stop, stop. We’ve got limited time. I could care less about the back door.[32]

e.  BENCH: He’s asked her about one point, I’m asking him to move onto the other points, because he limited time because of interpreters, which I booked.[33]

f. BENCH: That was not my question, okay? We’re running out of time, sir. I asked you a very simple question.[34]

g. BENCH: The wife didn’t ask anything. The police organised it. But he hasn’t given evidence. So we’re running out of time. This interpreter has to go.[35]

  1. It is apparent that the magistrate turned his mind at one point to the prospect of proceeding with the matter part-heard but preferred, instead, to amend the dates of the charge to avoid the need to call a police witness:

“BENCH: If I start back again at 2 o’clock, and we go until – how many eyewitnesses do we have? Or should we go it’s part heard [indistinct]

SGT STEVENSON: Well. There’s a police officer, but he’s barely relevant. He’s on the counter, and he takes the statement from the aggrieved when she turns up, but it shores up the date of the offence.

BENCH: Well, I can amend the charge, though – and I’d be prepared to – to say:

On a date unknown between the 1st day of August and the 30th

I’m – I’ll do that.

SGT STEVENSON: Yes, your Honour. But - - -[36]

  1. The magistrate’s determination that the trial needed to progress more quickly is also apparent in his decision to amend the charge without there having been an application for such an amendment or any submissions invited on the amendment.[37]

The law – appeals

  1. [10]
    I refer to and adopt my exposition of the relevant statutory provisions (Justices Act 1886 (Qld) s 222(1) and s 223) and statements of principle from McDonald v Queensland Police Service [2017] QCA 255 and Forrest v Commissioner of Police [2017] QCA 132, as set out in my decision in McDonald v Holeszko [2018] QDC 204 at [6]-[9]. 

Discussion

Mode of recommencement of trial after contempt proceedings – apprehended bias

  1. [11]
    Undoubtedly, the learned magistrate should have considered whether to recuse himself after the contempt proceedings and before restarting the trial. He failed to do so. Given my conclusions in respect of other aspects of the appeal, it is unnecessary to consider this ground further, subject to the observation above.

Mode of recommencement of trial after contempt proceedings – summary of evidence

  1. [12]
    The learned magistrate’s decision to commence hearing the trial in the absence of the appellant was permissible pursuant to Justices Act s 147, but as is clear from the transcript, the appellant appeared approximately 17 minutes after the trial commenced.[38]  After dealing with the issue of contempt because of the appellant’s refusal to identify who drove him to court, the learned magistrate stated:

“We just need to get on with it. We’ve only got her [the interpreter] booked for a certain amount of time.  Take a seat… Let me explain what’s going on, though.  We’ve started the trial already.  I’ve already heard some evidence from your – from [the complainant].  That evidence has already been heard and does not need to be repeated.  I entered a plea of not guilty on your behalf and started hearing the evidence.  The Justices Act, which governs this court allows me to do that.  I can give you a summary, now, of the notes I’ve taken of the evidence.”[39] 

  1. [13]
    The learned magistrate then went on to provide a summary of the evidence heard to date.[40] 
  1. [14]
    With respect, once the appellant appeared before the court, the matter was partly heard in his absence, but was no longer a hearing in his absence. The trial could not proceed in a manner that was procedurally fair and in accordance with the rules of natural justice, by the learned magistrate providing a summary of evidence (which may or may not have been comprehensive or accurate, but in any event was a summary of the complainant’s evidence given in the absence of the self-represented appellant).
  1. [15]
    Section 146 of the Justices Act 1886 (Qld) provides:

146 Where defendant pleads not guilty

(1) If the defendant pleads not guilty then the court may—

(a) proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or

(b) upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing.

(2) A hearing may be adjourned pursuant to subsection (1) from time to time provided no evidence has been adduced before any court in respect of the complaint.

(3) When a hearing is adjourned pursuant to subsection (1) the provisions of section 88 shall, with all necessary adaptations, apply thereto.

(4) The hearing so adjourned may proceed at the time and place to which it is adjourned before a court constituted in accordance with this Act by such justices as may then be present, notwithstanding that the defendant has pleaded to the complaint.”

  1. [16]
    The Justices Act 1886 (Qld) at s 148 also provides:

“148 Conduct of summary proceedings regulated

The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross-examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.”

  1. [17]
    Accordingly, the appellant’s right to a fair trial was irreparably compromised at the point that the learned magistrate opted not to restart the trial afresh.[41] Undoubtedly the appeal must succeed on this ground alone but it is useful to review the other grounds. 

Encouragement to cut short the prosecution case

  1. [18]
    The learned magistrate appears to have been unduly focused on a prompt completion of the trial within the time frame for which the interpreter was booked.[42] 
  1. [19]
    This led to an exchange between the prosecutor and the learned magistrate about calling a police officer to prove the date of the alleged offence (the magistrate then unilaterally moved to amend the charge to a spread of dates to deal with the uncertainty about the date on which the alleged offence occurred).[43] 
  1. [20]
    The learned magistrate indicated during the course of cross-examination that the self-represented appellant was to move onto other points because of “…limited time because of interpreters which I booked”.[44] 
  1. [21]
    I adopt and endorse the appellant’s submissions on the issue of the learned magistrate’s interference with the prosecution case.[45] This constitutes another aspect of an unfair trial.

Absence of eye witness from defence case

  1. [22]
    The prosecution closed its case without calling evidence from any other witnesses besides the aggrieved.[46]
  1. [23]
    The appellant then indicated when asked by the magistrate, “Are you going to call any other witnesses to give evidence to me?” that he wished to call a witness [NKI], who (other evidence indicated) was present during the events the subject of the charge.[47]  The prosecutor indicated: 

“[NKI] was summoned by the prosecution.  He refused to give a statement.  He speaks Somali.  His interpreter left at midday.  [NKI] wasn’t here at 9 when it started.  I believe Mr [NKI] is gone now.”[48] 

  1. [24]
    When the appellant indicated that he wished to call Mr [NKI] (who had been summonsed by the prosecution) the learned magistrate refused an adjournment even though Mr [NKI] was not (originally at least) a defence witness.[49]
  1. [25]
    Once it became clear that the prosecution was not calling Mr [NKI], the learned magistrate should have granted an adjournment for the appellant to call him in the defence case. The learned magistrate’s failure to call for submissions on the issue was unjudicial, and the failure to give reasons clearly vitiates the decision.[50] The learned magistrate’s decision to refuse the adjournment on this basis is another aspect of the trial being unfair.

Time limits placed on proceedings

  1. [26]
    The learned magistrate, when the trial resumed, informed the appellant “…you’re going to have 15 minutes to give your evidence and you can have 10 minutes to cross-examine [sic]”.[51]  After a short period of time the magistrate said, “Anything else he wanted to say? I want to bring his evidence to a close now. We’re running out of time”[52] and the appellant was then cross-examined.  The learned magistrate also intervened during cross-examination when the prosecutor indicated that he was going to put the prosecution case to the appellant.[53] This was a yet another unfortunate example of the lack of fairness in the conduct of this trial.

Fairness to a self-represented party

  1. [27]
    Quite concerningly, the learned magistrate did not call for submissions from either the prosecution or defence, made no attempt to explain the appellant his right to make detailed submissions on both the law and the facts, and again refused the appellant’s application to adjourn the proceedings so the appellant could call “the witness” (clearly a reference to Mr [NKI]). 
  1. [28]
    Also inappropriately (given the unfairness the learned magistrate exhibited throughout the conduct of the trial), the learned magistrate described the appellant as “belligerent” and proceeded (without hearing substantive submissions from either the appellant or the prosecutor) to deliver a decision.[54]
  1. [29]
    The learned magistrate’s interference with the conduct of the trial by the prosecution, and the clearly unreasonable refusal to grant the adjournment sought by the appellant, collectively represent a further egregious departure from the obligation to provide the appellant with a fair trial, especially given that the appellant was self-represented.

Conclusion

  1. [30]
    In all the circumstances, I adopt Morzone QC DCJ’s conclusions, in the context of a summary trial conduct in similar circumstances, in Carrick v Queensland Police Service [2018] QDC 72, expressed in these terms at [26]:

“[26] It seems to me that each of those matters strike at the heart of the judicial obligation owed to the appellant to conduct a fair trial, that is, properly affording the appellant with procedural fairness and natural justice as would be expected in Supreme Court proceedings.” 

  1. [31]
    As the appellant submits, and the respondent accepts, the appellant was denied a fair trial. The learned magistrate’s conduct of the trial was unreasonable, unfair, unjust and a comprehensive breach of the obligation of a judicial officer to provide procedural fairness and natural justice to the appellant in respect of his trial for a serious criminal offence. As a consequence, the trial was so unfair that a miscarriage of justice resulted.
  1. [32]
    The matter should be remitted back to the Magistrate’s Court to proceed to trial before a different Magistrate.

Orders

  1. [33]
    Accordingly, I grant the following orders:
  1. Appeal granted.
  2. The conviction for the charge of contravene a domestic violence order (aggravated offence) be set aside.
  3. Order that the matter be remitted to the Magistrates Court, to be tried before a different magistrate, in the Brisbane Magistrates Court. 
  4. No order as to costs.

Footnotes

[1]Sentence remarks Transcript p. 5, ll 1-25 – Exhibit ST2 of Affidavit of Sharyn Thompson sworn 20 May 2019 – I note that the verdict and judgment record (Affidavit of Sharyn Thompson sworn 20 May 2019, Exhibit ST3) identifies the outcome as “conviction recorded” but the learned magistrate, on an examination of the transcript, does not appear to have addressed that issue on the record. 

[2]Notice of Appeal to a District Court judge, filed 29 March 2019, p. 1. 

[3]Amended Notice of Appeal to a District Court judge, filed 6 September 2019, p. 1.

[4]Appeal transcript 1-3, ll 10-11.  The appeal in respect of the conviction for contempt is to be dealt with separately.

[5]Trial transcript 1-32, ll 11-14 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019. 

[6]Outline of submissions on behalf of the Appellant, filed 20 May 2019, [1].

[7]Outline of submissions on behalf of the Respondent, filed 26 August 2019, [4.1]. 

[8]Trial transcript 1-6, ll 13-29 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[9]Trial transcript 1-27, ll 23; 1-41, ll 31-45; 1-43, l 3 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[10]Outline of submissions on behalf of the Appellant, filed 20 May 2019, [8]-[10].

[11]Vakauta v Kelly (1989) 167 CLR 568, 572.

[12]See related appeal number 1070/19.

[13]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345.

[14]Trial transcript 1-10, l 23 to 1-11, l 9 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[15]Trial transcript 1-14, l 28; 1-26, l 19; 1-41, ll 31, 40-45 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[16]Trial transcript 1-26, ll 19-31– Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[17]See Outline of submissions on behalf of the Appellant, filed 20 May 2019, [27] below.

[18]Trial transcript 1-27, l 23 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[19]R v Apostilides (1984) 154 CLR 563, 575 as cited in R v Manning [2017] QCA 23, [15].

[20]R v Manning [2017] QCA 23, [19] citing Whitehorn v The Queen (1983) 152 CLR 657, 674; Dyers v The Queen (2002) 210 CLR 285, 326 [118].

[21]Trial transcript 1-41, l 31 to 1-43, l 11 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[22]Trial transcript 1-41, l 31 to 1-43, l 11 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[23]Trial transcript 1-42, l 30-39 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[24]Forrest v The Commissioner of Police [2017] QCA 132, 7.

[25]Trial transcript 1-42, ll 41-43 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[26]Trial transcript 1-30, ll 9-15 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[27]Trial transcript 1-32, ll 11-14 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[28]Trial transcript 1-34, ll 17-18 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[29]Trial transcript 1-10, ll 29-30 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[30]Trial transcript 1-11, ll 40-42 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[31]Trial transcript 1-17, ll 27-29 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[32]Trial transcript 1-19, ll 40-41 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[33]Trial transcript 1-21, ll 11-12 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[34]Trial transcript 1-39, ll 28-29 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[35]Trial transcript 1-41, ll 40-41 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[36]Trial transcript 1-26, ll 19-29 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[37]Trial transcript 1-26, ll 19-31 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[38]Trial transcript 1-8, ll 11-26 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[39]Trial transcript 1-10, ll 28-35 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[40]Trial transcript 1-10, l 37 to 1-11, l 18 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[41]See Carrick v Queensland Police Service [2018] QDC 72.

[42]Trial transcript 1-21, ll 11-12; 1-26, l 33 to 1-27, l 21; 1-32, ll 11-19; 1-41, ll 40-41 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[43]Trial transcript 1-26 to 1-27 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[44]Trial transcript 1-21, ll 11-12 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019. 

[45]Outline of submissions on behalf of the Appellant, filed 20 May 2019, [17].

[46]Trial transcript 1-28, l 19 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[47]Trial transcript 1-41, ll 8-29 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[48]Trial transcript 1-41, ll 31-33 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[49]Trial transcript 1-42, ll 37-39; 1-43, ll 17-28 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[50]Forrest v The Commissioner of Police [2017] QCA 132, 7.

[51]Trial transcript 1-32, ll 13-14 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019. 

[52]Trial transcript 1-34, ll 17-18 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

[53]Trial transcript 1-40, ll 13-32– Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019. 

[54]Trial transcript 1-43 – Exhibit ST1 of Affidavit of Sharyn Thompson sworn 20 May 2019.

Close

Editorial Notes

  • Published Case Name:

    YTL v Commissioner of Police

  • Shortened Case Name:

    YTL v Commissioner of Police

  • MNC:

    [2019] QDC 173

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    18 Sep 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.