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  • Unreported Judgment

Dupois v Queensland Police

 

[2020] QDC 328

DISTRICT COURT OF QUEENSLAND

CITATION:

Dupois v Queensland Police [2020] QDC 328

PARTIES:

CHARLES DUPOIS

(Appellant)

v

QUEENSLAND POLICE

(Respondent)

FILE NO/S:

DC No 2229 of 2018

DIVISION:

Civil

PROCEEDING:

s 222 Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

30 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 & 15 July 2020.

JUDGE: 

Clare SC DCJ

ORDER:

The appeal is dismissed.

The appellant is to pay the respondent $1800 by way of costs.

CATCHWORDS:

MAGISTRATES COURT – APPEAL AND REVIEW – QUEENSLAND – COMPLAINT AND SUMMONS – PEACE AND GOOD BEHAVIOUR COMPLAINT – where complaint did not disclose a cause of action – where issue of summons was not authorised – where insufficient particulars

ABUSE OF PROCESS – where scandalous allegations without evidence – where undue delay – where fishing expedition

LEGISLATION

Peace and Good Behaviour Act 1982 (Qld)

Justices Act 1886 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Criminal Code Act 1899 (Qld)

Domestic and Family Violence Protection Act 2012 (Qld)

CASES:

Power v Heyward [2007] 2 Qd R 69 – followed

Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 – cited

Grassby v The Queen (1989) 168 CLR 1 – cited

R v Forbes; ex parte Bevan (1972) 127 CLR 1 – cited

Upton v Commissioner of Police [2012] QCA 88 - cited

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130 – cited

Jago v District Court (NSW) (1989) 168 CLR 23 – cited

Higgins v Comans [2005] QCA 234 – cited

Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302 - cited

COUNSEL:

M J Nicholson for the respondent

The appellant in person

SOLICITORS:

The Queensland Police Legal Unit for the respondent

  1. [1]
    Three years ago, Charles Dupois and his friend, Kerry Crinis, sought to restrain a police officer (the defendant at first instance) from contacting either themselves or Mr Dupois’s mother through an order under the Peace and Good Behaviour Act 1982 (Qld). Mr Dupois swore a complaint, obtained a summons, and then delayed. On 25 May 2018 the matter was dismissed. Mr Dupois lodged a Notice of Appeal, and filed a written argument. That was more than two years ago.  It would appear that through a series of unfortunate events, Mr Dupois has been unprepared, unable or unwilling, to advance his appeal.
  1. [2]
    A hearing was finally set down for today over Mr Dupois’s strenuous objection. A review of the record had indicated prospects for his appeal were very poor and unlikely to improve with further delay. The matter was already very stale. Mr Dupois’s desire to postpone, for yet another 4 months, the opportunity to secure a protective order tended to confirm that the order was not needed. The hearing of the appeal proceeded. Mr Dupois appeared for himself and by telephone. Nothing of substance was added to submissions previously made. There was no cause of action. The complaint was brought in the hope that some evidence might be found. The appeal was filed on the same footing. It has no merit and must be dismissed.

The legislative scheme

  1. [3]
    The original complaint was filed under s 5 of the Peace and Good Behaviour Act 1982 (Qld) (the ‘PGBA’). Under s 7, the Magistrate who hears such complaint has a discretion to either dismiss it or make an order that the defendant keep the peace and be of good behaviour, with such other conditions as the court thinks fit.
  1. [4]
    Eligibility for an order is dependent upon a breach of the peace. Section 5 confines a breach of the peace to 3 situations, being those where there was:
  1. A threat from the defendant[1] to do “bodily injury” to the complainant (or a person under the complainant’s care);
  2. A threat from the defendant[2] to “destroy or damage” property of the complainant (or a person under the complainant’s care); or
  3. Intentional conduct by the defendant towards the complainant which caused the complainant to fear the defendant will “destroy or damage” property of the complainant (or a person under the complainant’s care).

In each case, there is the additional requirement that the complainant be in actual fear of the defendant.

  1. [5]
    To pursue an order, the complainant must first swear a complaint to a justice of the peace: s 5 (1), (2) PGBA. The complaint must be in the prescribed form and include the grounds for the complaint and the facts on which it is based: s 8 of the Peace and Good Behaviour Regulation 2010 (Qld).
  1. [6]
    The justice is authorised to issue a summons if satisfied firstly, that the complaint is substantiated, and secondly, that the complainant’s fear is reasonable in the circumstances: s 5(2A) PGBA.
  1. [7]
    Section 7 of the Act mandates a hearing and decision on the merits when a defendant appears in obedience to the summons.[3]  The making of a peace and good behaviour order is discretionary.  After hearing and considering the evidence the court may dismiss the complaint or make an order on such terms it thinks fit. There may be cases where notwithstanding there is a technical case under one of the limbs of s 5, an order is not appropriate, for example where the defendant is merely acting under lawful authority or where the matter is trivial.     

Background and chronology

  1. [8]
    The defendant is a police officer. He investigated a criminal complaint made by Mr Dupois’s former partner, executed a search warrant on Mr Dupois’s property and charged Mr Dupois with stalking, an attempt to pervert the course of justice and other offences. Mr Dupois’s complaint was sworn in July 2017. The defendant’s application to dismiss was heard on 27 April 2018.
  1. [9]
    A review of the Magistrates Court file reveals prior delay due to the conduct of Mr Dupois and Mr Crinis. They had required the transfer of the complaint they had filed to different courthouses. They repeatedly sought more time and changes in listing for personal reasons, including illness and family, but also Mr Dupois’s travel plans and the distraction of multiple court cases in Queensland and New South Wales. Most of those other cases appear to have been instigated by Mr Dupois against Mr Dupois’s ex-partner, her family and friends, and the defendant. On 13 November 2017, the defendant’s solicitor wrote to Mr Dupois complaining that “further delay will cause prejudice and unfairness”.
  1. [10]
    On 7 March 2018 the defendant filed his application to dismiss the complaint. On 13 March 2018, the Chief Magistrate gave directions for the filing of written submissions and evidence. On 27 March the defendant amended his application to include an objection to the complaint and summons. In late April the complainants unsuccessfully sought another adjournment.
  1. [11]
    The parties filed written outlines. Affidavits were sworn by the parties. No witness was examined. The complainants relied upon their sworn complaint and assorted papers. They wanted to cross examine the defendant but were not permitted to do so. The matter was decided without oral testimony.

Judge Rinaudo’s decision

  1. [12]
    The learned Chief Magistrate found the following:
  1. The complaint was defective and invalid
  2. The issue of the summons was beyond the power of the justice of the peace
  3. The complaint was an abuse of process
  4. There was no evidence the defendant had acted other than in accordance with his obligations as a police officer.
  5. Mr Dupois and Mr Crinis were on a substantial fishing expedition.
  6. A peace and good behaviour order would be contrary to the public interest and to the objects of the Peace and Good Behaviour Act 1982 (Qld).

Source of the Magistrate’s Power

  1. [13]
    The defendant’s application proceeded on the basis that summary dismissal was open without identifying the source of the power.
  1. [14]
    The PGBA does not expressly provide for summary dismissal of the complaint. Section 7(1) directs the court to “hear and determine the matters” if “the defendant appears in obedience to the summons”.  The defendant in this case however was challenging the summons with his application to strike it out. Section 7(1) did not apply to an application to strike out the summons. There is no express provision in the PGBA for preliminary issues of that nature.
  1. [15]
    The defendant’s application referred to the Uniform Civil Procedure Rules 1999 (Qld) (the ‘UCPR’), without nominating any particular rule. The reference to the UCPR seems to me to be a misconstruction of the legislation. Dismissal of a complaint is not prescribed by the UCPR.  I am satisfied the court did have the power to strike out the complaint, but it was conferred by the Justices Act 1886 (Qld) (the Justices Act’), or otherwise implied by Part 2 of the PGBA
  1. [16]
    The PGBA incorporates procedures from both the UCPR and the Justices Act, but in different contexts.
  1. [17]
    The PGBA authorises a variety of orders directed at the safety and good order of the community. The Act is divided into parts for the different orders. Part 2 is headed “Peace and good behaviour orders”. Headings for other parts include: “Public safety orders”, “Restricted premises Orders” and “Fortification removal orders.”
  1. Proceedings for all orders, save a peace and good behaviour order, are initiated by application. A peace and good behaviour order is initiated by complaint and summons.
  2. The Justices Act regulates the process of complaint and summons for offences generally.
  3. Section 9 of the PGBA (in Part 2) expressly extends provisions of the Justices Act to peace and good behaviour complaints.  Specifically, those provisions of the Justices Act applicable to the summary prosecution of an offence apply to proceedings by way of complaint under Part 2 of the PGBA, subject to Part 2 and any necessary modification.
  4. Section 80 of the PGBA adopts the UCPR for “applications made to a court under this Act to the extent the rules are consistent with this Act.”[4]

The Uniform Civil Procedure Rules

  1. [18]
    Although found in Part 6 which deals with court proceedings generally, s 80 is directed at “applications” under the PGBA.  The only applications set out in the PGBA concern orders that are not peace and good behaviour orders.  Furthermore, the UCPR only applies to the PGBA to the extent they are consistent with PGBA. Unlike the Justices Act, the UCPR are not to be modified to fit the PGBA. Critically, the UCPR does not accommodate complaints. They provide for just 4 kinds of originating processes: claims, application; notice of appeal or notice of appeal subject to leave.[5]   A proceeding commenced by complaint under the PGBA would therefore appear to be outside of the UCPR. Certainly the Rules for obtaining summary judgment have no application to a complaint.  They are directed at either claims[6] or setting aside any of the four originating processes recognised by the Rules.[7] It follows the UCPR did not authorise the application for summary judgment before the magistrate.

The Justices Act

  1. [19]
    Section 9 of the PGBA reads:

Application of Justices Act

Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 7 as if such complaint were a complaint in respect of such an offence. (underlining added)

  1. [20]
    The learned Chief Magistrate was not referred to the Justices Act. The provisions of that Act directed at proceedings for a summary prosecution on complaint are limited.  Relevantly:
  1. A criminal prosecution may be commenced by a complaint.[8] It may be made by a public officer or an individual member of the public. 
  2. A complaint may be amended.[9]
  3. Section 146 permits the court to hear and determine a complaint and section 148 adopts the practice of the Supreme Court for examination and cross examination applies for a summary trial.
  4. The only provision for the summary termination of a complaint is in Part 5 and specifically in relation to private complaints for indictable offences. A “private complaint” is defined as one made by a person who is neither a public officer, acting in execution of a legal duty or under the administration of an Act.[10]
  1. (1)
    Division 2 (ss 102A to 102G) concerns private complaints for indictable offences which may be dealt with summarily (and which do not have injury to person or property as an element.[11])
  1. (2)
    Section 103A in Division 4 concerns those indictable offences that cannot be dealt with summarily.[12]     
  1. [21]
    Part 5, Division 2 of the Justices Act may have application, although I suspect it is not broad enough. If Division 2 did not apply, the necessary powers to deal with the respondent’s application in the present case would be implied by s 5 and 7 of the PGBA.  The particular source of a Magistrate’s power however, goes to the competency of the appeal.   If this appeal was against an exercise of power under Part 5 Division 2, it would be incompetent.

Private complaint - Part 5 Division 2 of the Justices Act 1886 (Qld)

  1. [22]
    Part 5 Division 2 is not specifically directed at prosecutions conducted in a summary way. It includes those that must be prosecuted on indictment and it excludes summary offences. Nonetheless as the focus is on preliminary issues for complaints for relevant indictable offences, it will still be “applicable in the case of a prosecution of” some offences but not all offences, “in a summary way”. For the provision to qualify under s 9 of the PGBA, it must be “applicable in the case of the prosecution of an offence in a summary way.”    For Division 2 to be incorporated into the PGBA “an offence” in s 9 would have to mean “one or more offences”.  I think s 9 must require a more general application.  In the absence of authority, I would construe “an offence” in s 9 of the PGBA to mean “all offences” and therefore consider the appeal on the basis that Division 5, Part 2 of the Justices Act was not relevant. 
  1. [23]
    If that restriction on eligible provisions in the Justices Act is too narrow, the regulation of private complaints in Part 5 Division 2 would be readily adaptable to a complaint made in a personal capacity under s 5 of the PGBA. The regime of regulation under Part 5 Division 2 is designed to protect defendants from oppressive or frivolous or vexatious complaints brought by private citizens. It would serve the same purpose for complaints under the PGBA.  The difference is that the peace and good behaviour complaint is not a complaint for an indictable offence.  It is not an offence of any type.  The risk of penal sanction only comes after a peace and good behaviour order is made. Pursuant to s 9 of the PGBA, however, the relevant provisions of the Justices Act will apply “as if” the peace and good behaviour complaint were for an offence[13].  Section 9 does not tie itself to a particular characterisation of the offence, whether indictable or simple. The relevant link is summary prosecution. Part 5 is limited to those complaints that may be prosecuted summarily. It provides for a summary determination.
  1. [24]
    Part 5 expressly excludes offences that have injury or damage as an element. Even by analogy, the exclusion would not disqualify a complaint for a good behaviour order. The elements of a complaint under s 5 of the PGBA do not include actual injury or property damage, only the threat or fear of injury.[14]

Discretion for summary judgment - where delay or abuse

  1. [25]
    Part 5 Division 2 of the Justices Act empowers a magistrate to strike out a complaint for undue delay.  Pursuant to s 102G the magistrate may do so for a private prosecution which does not proceed with due diligence.  In some other circumstances, the complaint must be struck out and the order is final.[15] 
  1. [26]
    Abuse of process is addressed by s 102C. A defendant may apply for the dismissal of the complaint on grounds that it is an abuse of process, frivolous or vexatious: s 102C (1). The application may be made any time before evidence of the offence is led. The complainant is then required to give security for costs: s 102C (2). The defendant has the onus of proving on the balance of probabilities that the complaint is an abuse or frivolous or vexatious; the court must be closed and the magistrate must consider all relevant evidence and material produced and submissions made: s 102C (3). Where a complaint is dismissed on the grounds set out in s 102C , the only avenue of appeal is to a judge of the Supreme Court: s 102D. An appeal to the District Court would be incompetent.

This case

  1. [27]
    The chief magistrate focused on the alleged abuse of process. If his authority to do so derived from s 102C(1), it was not vitiated by the absence of an order for security for costs or closed proceedings. Those were procedural matters for the protection of the respondent. Their oversight did not disadvantage Mr Dupois. In any event, there is no appeal to the District Court from an exercise of power under s 102C(1). Therefore, if s 102C did apply, Mr Dupois’s present appeal would be futile. This court would be confined to a review of the validity of the complaint and summons. A determination of that issue favourable to Mr Dupois could not affect the ultimate outcome. The complaint would remain struck out under s 102 C.

Implied power

  1. [28]
    If Part 5 of the Justices Act was not invoked, a magistrate’s power to determine the defendant’s application was implied in the legislation. Every court must have  power to control its own processes. Although a court of limited jurisdiction, the Magistrates Court of Queensland has by necessary implication, powers it reasonably needs to effectively carry out its judicial function.  “(A) grant of power carries with it everything necessary for its exercise”,[16] that is those powers required for the effective exercise of the jurisdiction expressly conferred but confined to “so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction.’”[17]                    
  1. [29]
    The express power in s 146 of the Justices Act to hear and determine a disputed complaint is supported by implied powers to resolve preliminary issues.  So even without express provision, magistrates will have power to determine preliminary questions of law, including those which may be determinative.  For example in Power v Heyward, where the issue was whether the prosecution was time barred, the magistrate was entitled to hear an application for a stay before the trial began.[18]  Byrne J observed at [22]:[19]

The recognition of a power in Magistrates Courts in this State to decide a preliminary question of law would conform with the legislative regime regulating the hearing of a complaint. It is also reasonably necessary to enable the Court to act effectively within its jurisdiction”.[20]

  1. [30]
    The approach of Byrne J was adopted by the Court of Appeal in Upton v Commissioner of Police [21] and Boddice J in Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall.[22] Thus the power of a magistrate to dismiss a complaint on a no case submission was upheld in Upton and the power to strike out a non-compliant complaint confirmed in Thiess.[23]
  1. [31]
    The same power to determine the validity of a complaint and summons implied under the general provision of s 146 of the Justices Act, must be implied in the court’s duty under s 7 of the PGBA to hear and determine a peace and good behaviour complaint.  When the validity of the complaint is in issue, the question of validity must be determined before the court exercises its express powers under s 7.  If there is no express power to do so under either the Justices Act or the PGBA, the power must be implied, unless excluded by the legislation.
  1. [32]
    Further, a magistrate has the necessary power to permanently stay proceedings for an abuse of process if exercising the judicial function.[24]  In Jago v District Court (NSW) Mason CJ expressed the rationale in the context of an abuse in criminal proceedings:

"The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness."[25]

  1. [33]
    The power to stay proceedings may also be exercised in civil proceedings. In the same case Gaudron J observed that the power of a court to control its own processes may be exercised:

as and when the administration of justice demands. The terms frivolous, vexations and oppressive, when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process, such that in the interests of the administration of justice, they should attract the grant of a permanent stay, but the terms vexatious and oppressive may also import a consideration of the justice or fairness of the proceeding, those terms signifying an appropriate context for proceedings which 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'".[26]

  1. [34]
    To imply the usual powers to address an abuse of process in a complaint for a good behaviour order is not inconsistent with the PGBA. Section 7(2) does allow evidence the complaint is motivated by malice or vexation at the hearing of a complaint. The intention of s 7 however cannot be to compel the hearing of a complaint when it would be a clear abuse of process.  It is not inconsistent with a power to strike out an abusive complaint.  Firstly, s 7(2) is only directed at malice or vexation. Malicious prosecution is one form of abuse, but it is not the only kind.  Secondly, a finding of abuse of process does not necessarily require the termination of proceedings. Ending the matter prematurely is a drastic measure, to be taken only when the abuse cannot otherwise be remedied.  By confirming the relevance of an improper purpose at a hearing of the complaint, s 7(2) allows the court to otherwise take it into consideration when weighing the exercise of its discretion to make the peace and good behaviour order.

Was the complaint defective?

  1. [35]
    Under s 8 of the Peace and Good Behaviour Regulations 2010 (Qld) the complaint must be in the prescribed form. It must also include the matters set out in s 8(2).  Those necessary matters include “the facts on which the complaint is based.”
  1. [36]
    Mr Dupois’s complaint document was in the prescribed form. Although not updated to reflect amendments to s 5 of the PGBA, it was in the current prescribed form and therefore compliant with s 8(1) of the Regulation. The prescribed form recites the alternate limbs of s 5 (1) and (2).[27]  Mr Dupois’ completed form retained both limbs. As for the requirement to provide the facts on which the complaint was based, Mr Dupois’s form had a 4 page attachment titled “The grounds of the complaint”.       
  1. [37]
    The facts he set out did not constitute a complaint under either limb of s 5 of the PGBA. They did not identify any threat of the kind essential for a complaint under s 5(1) and they did not identify the kind of fear required for s 5(2).  

The statement of facts in the complaint.

  1. [38]
    The first paragraph of the attachment to the complaint made the ambiguous assertion that Officer Smith breached s 14 of the Crime and Corruptions Act 2001.  Section 14 is a definition section. 
  1. [39]
    The complaint attachment identified that Mr Dupois and his former partner, KAS, were locked in numerous legal proceedings, both civil and criminal. Mr Dupois had reported being threatened by KAS to NSW police. KAS had made allegations against Mr Dupois to Queensland police. The document labelled KAS’s conduct “malicious”.
  1. [40]
    The attachment described the respondent (then defendant) as a police officer who had interviewed KAS, spoken to the New South Wales detectives investigating Mr Dupois’s complaint against her, executed a search warrant on the home of Mr Dupois and Mr Crinis, seized computers and files relating to the complainant’s active civil cases under that warrant and questioned both men before arresting them on 8 charges including stalking KAS and attempting to pervert the course of justice. NSW police had discontinued their investigation of Mr Dupois’s complaint.
  1. [41]
    The attachment asserted that Mr Dupois and Mr Crinis were innocent of the criminal offences, they had cooperated with the defendant by submitting to questioning, and they were notable people both here and abroad. The document complained that the defendant had arrested them when he could have issued a notice to appear. As a result of being arrested they were detained for three hours before release on bail conditions. Mr Dupois’s three hour absence from home almost killed his elderly mother.
  1. [42]
    The attachment listed action Mr Dupois and Mr Crinis had taken against the defendant police officer. They had filed a civil claim against him for $27 million. They had made a complaint to the Crime and Misconduct Commission.
  1. [43]
    The document disclosed that Mr Dupois had earlier instigated proceedings in 3 different courts for property settlement, debts and defamation against KAS and her sister. The premise of the document was that KAS then made a false complaint of stalking to stymy Mr Dupois’s lawful attempts to recover what was owed to him, and that she “caused the …defendant to instigate” the property search and arrest. 
  1. [44]
    The attachment is dense with terms such as “improper relationship”, “baseless charges”, “invalid search warrant” and “wrongful seizure,” but thin on facts.  Inflammatory and pejorative language is not a substitute for facts. Similarly, an accusation does not become stronger because it is made in multiple forums.  Without some credible evidence it is purely self-serving. If circumstances are to be relied on to support an inference, the hypothesis must at least be rational. That the complainants elected to sue the defendant with an extravagant claim, that they made a complaint, or even a hundred formal complaints about him, is not evidence of the truth of any of their accusations.
  1. [45]
    The attachment misconceives the nature of the charges laid and the responsibilities of the Queensland Police Service. For example, the document suggests Mr Dupois could not have been guilty of stalking because the parties were living in separate states and neither he nor Mr Crinis had spoken to KAS in that period. Those circumstances would not preclude stalking, which under s 359B of the Criminal Code Act 1899 (Qld), can be committed through electronic or other communication or by intimidating or harassing acts. Stalking a current or former partner is a form of domestic violence even if it is committed long distance.  Queensland legislation is directed at ensuring the safety of those aggrieved by domestic violence through the police and the courts. Police have specific obligations under the Domestic and Family Violence Protection Act 2012 (Qld) including the responsibility to investigate whether a criminal offence has been committed[28] and to consider whether a protection order and other protective measures, are needed[29].  In particular circumstances, release of a respondent can only be on conditions.[30]  In other circumstances police have a clear discretion. Nothing sinister can be inferred from the imposition of a non-contact condition in the bail undertaking or flagging a future protection order.
  1. [46]
    When the fallacious reasoning is stripped from the complaint, all that is left is the unremarkable progression of a stalking investigation, consistent with police powers and responsibilities. Mr Dupois’s complaint does not outline a set of facts capable of sustaining a complaint under either limb in s 5 of the PGBA. It does  not particularise any threat of the kind essential for a complaint under s 5(1) PGBA (i.e. to do bodily harm or cause damage or loss to Mr Dupois’s property); nor does it assert a fear of damage to property as required for the alternative limb in s 5(2) PGBA.

S 5(1) – Threat of injury to Mr Dupois or his property?

  1. [47]
    The complaint attachment asserts the defendant made three threats at some unspecified time, namely that:
  1. that he would take action to stop the complainants from contacting each other;
  2. that he would take possession of the complainants’ email addresses; and
  3. that he would apply for a domestic violence order for  KAS.
  1. [48]
    None of those allegations could constitute a threat under s 5(1) of the PGBA. They are not threats to cause bodily harm to Mr Dupois or damage to Mr Dupois’s property. Instead, they relate to the sorts of protective actions that could well become justified in a case of stalking and an attempt to pervert the course of justice.

S 5(2) - Fear the defendant will damage Mr Dupois’s property?

  1. [49]
    The alternative limb in s 5(2) of the PGBA involves a fear that the defendant will destroy or damage the complainant’s property in the future.
  1. [50]
    Mr Dupois alleged his arrest and the seizure of his property had cost him possible investors and donors and a favourable property settlement. Unrealised potential is not destruction or damage to property. Moreover the complaint alleged the loss had already happened. Section 5(2) requires a fear that the defendant will destroy or damage property of the complainant in the future. Mr Dupois’s complaint attachment expressed his fear for the future as a fear the defendant “will do worse” when the complainants “defend” themselves. That was ambiguous.  A fear of something more ominous might mean a fear of bodily harm or harassment. Those fears would not satisfy a complaint under s 5(2) because the subsection requires a fear that the defendant may damage the complainant’s property.  The facts outlined in the complaint document did not identify a fear the defendant might damage Mr Dupois’s property. Accordingly, the facts were insufficient to substantiate a complaint under s 5(2).
  1. [51]
    It follows the complaint document did not disclose a valid cause of action under the PGBA.

Validity of the summons

  1. [52]
    The issue of a summons is not a mere formality. Where a discretion is conferred, it must be exercised in a judicial manner.[31]
  1. [53]
    The level of scrutiny expressly required for the issue of a summons for a complaint under the PGBA goes further than that required under the Justices Act, yet even under the Justices Act, there is a discretion. For example, for a summons under s 53(1), the justice need only be satisfied that the defendant is suspected of committing an offence, and doing so in the jurisdiction. There is no obligation for the justice to review evidence, but the offence must be clearly stated.  “If the Justice, after reading the information, is satisfied that no legal offence is alleged in it, he may decline to issue the summons. In the exercise of his discretion, he may also decline to issue a summons upon other grounds, even though a legal offence is averred in the information, as, for instance, where he considers that the issue of a summons would be vexatious or improper.”[32]
  1. [54]
    The authority to issue the summons under 5(2A) of the PGBA, is limited to circumstances where:
  1. “(T)he matter of a complaint under subsection (1) or (2) is substantiated to the justice’s satisfaction”;  and
  2. “(T)he justice considers it reasonable in the circumstances for the complainant to have the fear mentioned in the subsection”.
  1. [55]
    Both hurdles must be met. There is a positive obligation on the justice to also look behind the formal wording of the complaint, at the factual basis for it. Mr Dupois’s complaint fell short.
  1. Substantiating the complaint: However the standard of “substantiated to the justice’s satisfaction” is to be construed, it must at least require factual allegations capable of sustaining a complaint. Mr Dupois’s complaint document did not disclose a proper factual foundation for the complaint. It was not capable of substantiating the complaint.  There is no suggestion the justice of the peace was given any additional information.[33]
  2. Reasonable fear: The issue of reasonableness was a second insurmountable hurdle for the complaint. The complaint document gives no indication that the justice considered, or was even aware of, the additional requirement of reasonableness. In any event, even if Mr Dupois had asserted a fear of damage to his property, such fear could not be considered reasonable when the intentional conduct described went no further than a police officer carrying out his lawful duties.  For example, a fear that a police officer would damage property merely because the officer had taken possession of it under a search warrant could not be a fear based on reasonable grounds. The seizure of property by police is regulated by law and subject to oversight by the court. There are safeguards for the security of exhibits.  
  1. [56]
    To summarise, the complaint was not just irregular, but critically defective and the summons was issued without proper authority.

Hearing

  1. [57]
    As well as challenging the complaint, the defendant’s submissions addressed the merits of the complaint.
  1. [58]
    Mr Dupois and Mr Crinis offered affidavits and many documents to the Chief Magistrate. Notwithstanding the volume, they were in the same tone as, and largely repetitive of, the matters in the complaint attachment. Almost all of Mr Dupois’s material was created by one or other of the complainants. There were copies of the same hollow allegations sent to the Queensland Police Service, the Crime and Corruption Commission, and the civil claim for $26 million. There were transcripts involving various applications for protection orders between Mr Dupois and KAS. There was condemnation of the defendant by name calling. There was a presumption of corruption. Facts were interpreted through that lens. Mr Dupois cited rulings (both for and against him) in relation to protection orders as evidence he was being set up. There was a vague assertion of hearsay attributed to KAS. At the same time, Mr Dupois and Mr Crinis claimed they had not seen or spoken to KAS for 16 months. In any event, they offered no admissible evidence of wrongdoing against the defendant.
  1. [59]
    In their submissions to the court, Mr Dupois and Mr Crinis still did not articulate a relevant threat or the requisite fear for the future. They asserted hearsay which did not implicate the defendant.[34] The crux of their argument seemed to be:
  1. They say they are innocent of the criminal charges and they should not have been charged, yet they were investigated, charged and treated like common defendants rather than victims.  
  2. The failure of NSW police to progress Mr Dupois’s complaint against KAS must be due to what the defendant told those police. 
  3. A Queensland Magistrate made a temporary protection order in favour of KAS against Mr Dupois. That Magistrate must have conspired with KAS and the defendant.
  1. [60]
    While litigants in person may be afforded some latitude in proceedings, they are not excused from the minimum statutory requirements.

A fishing expedition

  1. [61]
    Mr Dupois brought his complaint without any legitimate basis and had intended to use the complaint proceedings to fish for some evidence against the defendant. Not only was he unable to particularise elements essential for a complaint, he seemed to acknowledge that the assertions he had made were only a theory. The complainants wanted to force the defendant into the witness box. They also wanted to subpoena any recorded conversations between the defendant and KAS. Mr Dupois told the Chief Magistrate:

the reason we want these recordings, right, because we’ll establish whether or not this relationship was “Hi, Officer Smith, how are you? Could you please give me an update”, or “Hey Alistair, how are you? How are things going? How’s the family?”…[35]

  1. [62]
    Mr Crinis’s later submissions on costs tended to confirm the joint complaint was a fishing expedition. He said:

...the applicants have put forward their most honest case that they could with the availability of evidence with the ultimate aim of being able to cross examine and determine the truth of the situation.[36]

  1. [63]
    In the criminal prosecution for stalking, Mr Dupois was entitled to disclosure of relevant evidence. In those proceedings: he was the defendant, the duty of disclosure was on the prosecution and it was enforceable. But in the present proceedings, as the complainant for a peace and good behaviour order, Mr Dupois could not demand evidence from the defence. He could not compel the defendant to testify. He needed to show he had a case. If he had no case, there was no need for a defence.
  1. [64]
    Mr Dupois did not have a bare case. His cause was hopeless. Despite ample opportunity, he could not articulate a valid basis for the order. It was no answer to say he hoped to find something in the presentation of the defence case.

Vexatious or Abuse of process?

  1. [65]
    The defendant bore the burden of showing the complaint to be vexatious frivolous or an abuse of process. The burden was comprehensively discharged. This was worse than an exercise in futility. Without a valid complaint, Mr Dupois had made scandalous allegations against the police officer who had arrested him for serious criminal conduct. Without any evidence, he used these complaint proceedings as a platform to vilify the defendant by alleging seriously criminal behaviour and the abuse of the defendant’s position as a police officer. Mr Dupois’s conduct and the orders he sought had the potential to not only obstruct that officer’s lawful ability to perform his duties, but to impede the due administration of justice in the criminal case of R v Dupois.
  1. [66]
    The complaint is also stale. It was brought 3 years ago. Mr Dupois dragged his feet in the Magistrates Court and even now remained resistant to prosecuting his appeal. Rather than a genuine interest in the protection of a peace and good behaviour order, he feels aggrieved by the criminal charges. He has raised no valid purpose for proceeding under the PGBA. Whether he attempted to do so to undermine the pending prosecution or in retribution for his arrest, it was an affront to principles of fairness and high public policy. The only reasonable course open to the court was to stop the abuse of process.

GROUNDS

  1. [67]
    For the reasons given the appeal must fail. The specific grounds of appeal can be addressed in short form:

1. the Chief Magistrate “wrongly refused to accept additional evidence of an unsuccessful previous similar proceedings in 2012/2013 which proves a patterns of conduct of the complainant KAS which should have alerted the respondent that the stalking charge was false, despite which the respondent herein proceeded to maliciously charge both Appellants/ Complainants with stalking because they issued civil proceedings against KAS for monies owed…”

9. The Chief Magistrate failed to take into account the detailed affidavits on behalf of the appellants showing a distinct pattern of behaviour of the respondent detailing strong circumstantial evidence to prove…that (KAS) has acted maliciously and conspiratorially with the respondent …to threaten and damage the appellants’ property by laying fabricated and false charges and interfering with the course of justice.

10. The Chief Magistrate failed to take into account and give proper weight to the fact a …judge (Judge Smith) stayed an interim domestic violence order made by (a magistrate)…on the application of the respondent herein seeking an order clearly designed to prevent any communication of any nature which would immediately stop all civil proceedings against KAS and others associated with (the respondent).

  1. [68]
    KAS was not a party to the current proceeding. Mr Dupois’s allegations against KAS did not advance the case for a peace and good behaviour order against the defendant/respondent. There was no evidence that the defendant/respondent had conspired with KAS. The defendant/respondent’s investigation of KAS’s complaint was not evidence of a conspiracy between them.
  1. [69]
    If Mr Dupois wished to challenge the legitimacy of the criminal charges, the proper forum was the criminal justice process. He could make submissions to the prosecutor. If the case went forward, he had the right to test the evidence and/or make a no case submission. He had the right to call evidence in his defence.
  1. [70]
    Mr Dupois has always asserted the stalking charge was transparently ridiculous and particularised only as civil litigation. I note that on his appeal against a non-contact bail condition the Court of Appeal considered prosecution material, including the witness statements for the stalking and attempt to pervert the course of justice charges.[37] The court did not question the capacity of the evidence to support those charges.  The court also noted that the previous year Mr Dupois had commenced an action against a long list of defendants, including the respondent to this appeal, KAS, her sister, her friend, her solicitor and a magistrate.  The bail conditions were amended to allow Mr Dupois to continue to exercise his rights to litigate.[38]
  1. [71]
    The decision of Judge Smith to stay an interim domestic violence order against Mr Dupois was for technical reasons and not related to the conduct of the respondent (or even KAS). The transcript reveals Mr Dupois had appealed the interim order. In circumstances where Mr Dupois was already subject to protective bail conditions, the temporary protection order was held to be unnecessary and stayed.
  1. [72]
    The transcript of proceedings before Judge Smith attached to Mr Dupois’s written submissions below includes a time line with charges “of stalking and harassing phones” 2 months before Mr Dupois commenced the large damages claim against KAS, her friends and family.[39]
  1. [73]
    Judge Smith later vacated the interim order after the respondent conceded an error in the transcript. There was no adverse finding against the respondent or KAS. Mr Dupois attempted to argue malice but the judge declined to consider it.[40]

2. “The magistrate made an incorrect finding that there was no evidence of an improper relationship by the respondent herein and the female complainant of the alleged and fabricated stalking charges which was all calculated to stifle civil proceedings…”

  1. [74]
    The Chief Magistrate’s assessment was correct. The accusation of a relationship hung on fallacious reasoning not actual evidence.

3. “ the Magistrate failed to take into account the fact this is an unusual case in which the respondent ACS who is a Queensland Bikie Task Force Office was able to disguise his premeditated ulterior motive by pretending to be merely performing his duties as a police officer even though KAS is a resident of New South Wales…” 

  1. [75]
    Firstly, the jurisdiction of the police comes from the jurisdiction in which the alleged crime was committed, not the address of the alleged victim. The investigation of offences committed in Queensland is the responsibility of Queensland police.
  1. [76]
    Secondly, the argument that an order should be made against the defendant/respondent officer without the need for evidence because he is a police officer is unsustainable. Section 81 of the PGBA requires that question of facts be decided on the balance of probabilities, not baseless speculation.

4. “The magistrate erred in assuming there is no evidence of corruption by the respondent simply the respondent, obviously, denied it and the crimes and misconduct commission together with the ethical standards command did not take any action and the Magistrate ignored the remarks of Mr Dupois advising….there were still other complaints not dealt with…”   And in a similar vein;

5. “The Magistrate erred in his conclusion that because the authorities… did not take any action…even though there are ongoing investigations against (the respondent), he was presumed to be carrying out his proper duties”

6. “The Magistrate erred in concluding that if this Peace and Good Behaviour Order was  failed to recognise that view only applies to lawful police officers except when it can be demonstrated at trial with full cross examination of witnesses that this officer clearly had premeditated ulterior motives…”

7. “The Magistrate failed to take judicial notice of examples of recent Queensland cases where high profile police officers had been found guilty of…corruption…”

  1. [77]
    The onus of proof is on the party seeking the order. The defendant brought the application to strike out the complaint and summons.               It was therefore for him to establish either that the complaint was unsustainable or an abuse. . Mr Dupois did not particularise a proper cause of action in either the complaint, his written submission or oral argument.  The fact that some police officers have previously been exposed as corrupt was irrelevant.
  1. [78]
    Other grounds appear to argue a complainant’s right to have a full hearing on the merits, without the need to particularise a case, and even when vexatious. For the reasons given, that is a plainly wrong.

Post script – Mr Dupois’s request for adjournment

  1. [79]
    The complainants filed their appeal on 18 June 2018 and their written outlines soon after. Mr Dupois is now the only surviving complainant. Sadly, Mr Crinis died at the end of 2018 and Mr Dupois’s mother passed away in 2019. Mr Dupois notified the registry of those events. Mr Dupois was allowed some time, and continued to press for more. The respondent made his application to strike out the appeal pursuant to s 229(1) of the Justices Act.
  1. [80]
    Appeals ought to be prosecuted expeditiously. Mr Dupois’s appeal against the decision of the Magistrate is under s 222 of the Justices Act. The court has the power under s 229(1) to strike out an appeal when an appellant delays in prosecuting the appeal or fails to take a necessary step to present the appeal. The Uniform Civil Procedure Rules 1999 (Qld) are also relevant.[41] The Rules incorporate the Court’s practice directions. Practice Direction No 5 of 2016 sets timelines for an expeditious hearing, with the written outlines and signed certificate of readiness to be completed within 2 ½ months of the filing of the Notice of Appeal.[42] Delay in an appeal can be oppressive. The delay in this case has been extraordinary.  The parties’ detailed written outlines of argument were filed more than 2 years ago and the appeal was a relatively straightforward matters, yet Mr Dupois was seeking another adjournment for 5 months.  He cited poor health, difficulties in coping with his multiple legal proceedings and a need to withhold his defence for a pending criminal trial. It was not a compelling argument.
  1. [81]
    A resolution of the case was overdue, but it could still be heard on its merits. I listed the appeal for hearing and Mr Dupois was given opportunity to provide further submissions in writing and/or orally. During the appeal hearing Mr Dupois continued to press his case for adjournment. Further adjournment was denied. It is appropriate to record Mr Dupois’s case for adjournment.
  1. [82]
    Health: Mr Dupois provided letters from his general practitioner and treating psychologist, Ms Trollip.  Mr Dupois and Ms Trollip gave sworn evidence. Ms Trollip had treated Mr Dupois for many years for anxiety and post traumatic stress disorder. She noted his mental health had deteriorated following the deaths of his mother and Mr Crinis in 2018 and 2019.  He was having a counselling session almost every month.  His functioning was impeded through a constant state of panic and disorganisation.  Ms Tollip did not hold herself out to be an independent witness. She had a natural empathy for her patient and openly advocated for him.  She said:  “I was hoping that we could get an adjournment of this case so that we can work towards reducing this level of hypervigilance, so that he can do a good job when he’s representing himself.” She also said: “If we can get the first matters (the stalking trial) sorted … then I think he would be in a better position to present it (the appeal) comprehensively himself.”
  1. [83]
    Ms Trollip was hopeful Mr Dupois’s mental health would be restored to normal limits by November 2020. She was concerned that the pressure of running a lengthy trial without legal representation might jeopardise his physical health. He relied on Valium. He had a serious heart condition which was exacerbated by anxiety. It was a long standing infirmity which would not improve, but the anxiety levels may reduce with more treatment. Ms Trollip opined that Mr Dupois emotional issues left him unable to problem solve but she accepted that he was not grossly impaired. She had not seen him for a month and she had not had the benefit of observing his arguments earlier in the week. She agreed that his anxiety could be reduced if he were permitted to appear by telephone and to have a break if feeling overwhelmed.
  1. [84]
    While Mr Dupois’s consistent position has been that he is too unwell to cope, the court was also entitled to make its own observations. While maintaining he was incapable of arguing his case, Mr Dupois effectively demonstrated his ability to do so.  He hesitated about decisions such as whether he ought to call evidence in support of an adjournment, but his representation exceeded what is commonly seen for litigants in person.  He was articulate. He not only followed, but robustly attempted to direct, the course of argument. He exhibited a capacity to press his own interests. On the adjournment argument he even argued the merits of his appeal, by a recitation of facts he wished to rely on.  He was respectful but forceful. He pressed his points firmly.  He was not deterred by counter arguments.  He was mindful of his rights.  He was not a lawyer, but seemingly comfortable with the process.  He confided that he had had a lot of experience in superior courts over many years.
  1. [85]
    Concurrent litigation: Mr Dupois indicated he had too many cases to contend with. It seems all proceedings, except for his pending criminal trial, were commenced by Mr Dupois, and some as recently as this year. Most, if not all, appear to be connected to the allegations underpinning his complaint against the respondent and Mr Dupois’s ex-partner. The criminal trial is listed for October 2020. Mr Dupois has legal representation but indicated he would need a month to recover from the trial and prepare new evidence for this appeal.
  1. [86]
    Criminal trial: Mr Dupois contended this appeal should not be heard until the conclusion of his criminal trial in October because otherwise he would have to disclose matters material to his criminal defence. Mr Dupois has however already disclosed those matters. The focus of the appeal is the sufficiency of Mr Dupois’s complaint about the conduct of the respondent in investigating and charging him with the criminal offences.  Mr Dupois put those allegations before the Magistrates Court in 2017 and presented his case in 2018.  The appeal hearing is no more than a review of that which is already on the record. It could not compromise his criminal defence.
  1. [87]
    While Mr Dupois would prefer the court to wait until he had found some evidence to present, had attained optimum health and felt adequately prepared, the real issue was the due administration of justice and fairness to both sides. The timelines for appeals are designed to expedite a fair hearing on the real issues.[43] Those timelines had long expired. The court should not sanction further delay in circumstances where there could be no unfairness to Mr Dupois.  He has had an extended opportunity to place all of his arguments before the court. It was a short matter.  The suggestion of other potential evidence was worthless. 
  1. [88]
    Pursuant to s 223 of the Justices Act, this court had to decide the appeal on the original evidence. It could not give leave to admit new evidence without special grounds.  No special grounds were raised.  The suggestion of new evidence was belated and arose in response to the respondent’s strike out application. Mr Dupois referred to “boxes” of (undisclosed) evidence. He said the evidence was not yet ready because either he had not yet found or collected it or had not organised it.  This was almost three years after he had filed his Notice of Appeal which expressly disavowed new evidence.[44]  He has not shown that he has any evidence likely to change the outcome of the appeal.
  1. [89]
    Before the Chief Magistrate both Mr Dupois and Mr Crinis had conceded they filed their complaint in the hope that evidence against the defendant could be found. The same approach was taken to the appeal. It was misconceived. The appeal had to be determined on the transcript and exhibits at first instance.[45]
  1. [90]
    It was an appeal against the decision made on 25 May 2018. It is not a fresh application for a Peace and Good Behaviour Order. It was for Mr Dupois to demonstrate material error in the decision.

Footnotes

[1] Either personally or by procuring another.

[2] Either personally or by procuring another.

[3] The magistrate “shall hear and determine” the complaint: s 7(1) PGBA.

[4] Underlining added.

[5] UCPR s 8.

[6] UCPR s 293.

[7] Which means a claims, application or appeal notice see UCPR ss 8(2), 16.

[8] Justices Act 1886 (Qld) s 42.

[9] Justices Act 1886 (Qld) s 48.

[10] Justices Act 1886 (Qld) s 4.

[11] Justices Act 1886 (Qld) s 102A.

[12] The defendant is not compelled to appear in person before the court is satisfied there is a prima facie case.

[13] for an offence being prosecuted summarily.

[14]  Section 5(1) and (2) include elements of offences, but do not constitute offences in their own right. E.g. there are elements of assault and wilful damage, but they are not accompanied by the requirement of unlawfulness, which is an essential element of the offences.  In Laidlaw v Hulett, ex parte Hulett [1998] 2 Qd R 45 at 52, confirmed the application was not a criminal proceeding. Macpherson JA said s 4 (equivalent to the present s 5) “is concerned not with criminality of the acts in question, but simply with their tendency to promote breaches of the peace.”

[15] Justice Act 1886 (Qld) ss 102B(2), (3), 102C(2A), 102D(5).

[16] Grassby v The Queen (1989) 168 CLR 1, 16 per Dawson J.

[17] Grassby v The Queen (1989) 168 CLR 1, 17 per Dawson J quoting Menzies J in R v Forbes; ex parte Bevan (1972) 127 CLR 1, 7.

[18] Power v Heyward Ors [2007] QSC 26 [19].

[19] Power v Heyward & Ors [2007] QSC 26 [23] per Byrne J.

[20] His Honour concluded: “[24] So the limitation issue may be decided at trial as a preliminary question, before evidence is adduced.”

[21] Upton v Commissioner of Police [2012] QCA 88, Fraser and White JJA and A Lyons J.

[22] Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130, Boddice J.

[23] Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130, Boddice J. 

[24] But not in committal proceedings: Higgins v Comans [2005] QCA 234.

[25] Jago v District Court (NSW) (1989) 168 CLR 23, 28 per Mason CJ.

[26] Jago v District Court (NSW) (1989) 168 CLR 23, 74 per Gaudron J.

[27] Although the prescribed form refers to s 4 (as it previously was) the substance is the renumbered s 5(1) and (2).

[28] Domestic and Family Violence Protection Act 2012 (Qld) s 100.

[29] Domestic and Family Violence Protection Act 2012 (Qld) s 101.

[30] Domestic and Family Violence Protection Act 2012 (Qld) s 125.

[31] Electronic Rentals Pty Ltd v Anderson & Ors (1971) 45 ALJR 302, 306-307 per Windeyer J; Madsen v Appo; ex parte Appo (Unreported, Full Court of the Supreme Court of Queensland, 20th December 1973) No 46-50 of 1973.

[32] Madsen v Appo; ex parte Appo (Unreported, Full Court of the Supreme Court of Queensland, 20th December 1973) No 46-50 of 1973.

[33] The justice must consider the available information. Section 6 of the PGBA confers power to enquire and consider such evidence as the justice of the peace thinks fit.  No evidence about the justice was offered, but the argument below concerned the adequacy of the material given to him. (The Justice who issued the summons did not give evidence, but in argument before the Chief Magistrate about the sufficiency of the complaint document, the complainants did not suggest the justice was given more than the complaint document).

[34] There was a claim that KAS had threatened to procure someone to hurt the complaints.

[35] Dupois and Crinis v Smith, Brisbane Magistrates Court, 25 May 2018, T 1-6.

[36] Dupois and Crinis v Smith, Brisbane Magistrates Court, 25 May 2018, T 1-9.

[37] Crinis & Anor v Commissioner of Queensland Police Service [2018] QCA 150.

[38] Subject to any application of the Vexatious Proceedings Act 2005 (Qld).

[39] Dupois v Dooley, Brisbane District Court, 22 December 2017, T 1- 16, 17.

[40] Dupois v Dooley and Smith, Brisbane District Court, 2 February 2018, T 1- 5.

[41] Appeals to the District Court are regulated by the Uniform Civil Procedure Rules 1999 (Qld): R 783. 

[42] The overriding purpose of the Rules is to facilitate the just and expeditious resolution of the real issues at a minimum expense.  The Rules are to be applied with the objective of avoiding undue delay, expense and technicality: UCPR r 5.

[43] E.g. UCPR r 5.

[44] A Notice of Appeal should state whether the appellant will seek leave for new evidence, and if so, state the nature of it: UCPR 787.

[45] Justices Act 1886 (Qld) s 223; UCPR r 787.

Close

Editorial Notes

  • Published Case Name:

    Dupois v Queensland Police

  • Shortened Case Name:

    Dupois v Queensland Police

  • MNC:

    [2020] QDC 328

  • Court:

    QDC

  • Judge(s):

    Clare SC DCJ

  • Date:

    30 Jul 2020

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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