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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
MS v Commissioner of Police  QCA 31
COMMISSIONER OF POLICE
CA No 94 of 2020
DC No 1977 of 2018
Court of Appeal
Application for Leave s 118 DCA (Criminal)
District Court at Brisbane –  QDC 51 (Dearden DCJ)
2 March 2021
24 February 2021
Holmes CJ and Morrison and Mullins JJA
Application for leave to appeal refused.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted in the Magistrates Court of one charge of contravention of domestic violence order (aggravated offence) – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – when on the rehearing the District Court judge dismissed the appeal – where the applicant applies for leave to appeal from the District Court – whether the applicant has shown that an error was made by the District Court judge
Criminal Code (Qld), s 24
McDonald v Queensland Police Service  2 Qd R 612;  QCA 255, followed
The applicant appeared on his own behalf
C Farnsworth for the respondent
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- HOLMES CJ: I agree with the reasons of Mullins JA and with the order her Honour proposes.
- MORRISON JA: I have read the reasons of Mullins JA and agree with those reasons and the order her Honour proposes.
- MULLINS JA: The applicant was convicted after a summary trial in the Magistrates Court of one charge of contravention of domestic violence order (aggravated offence) and was sentenced to imprisonment for six months to be suspended for two years. (Iwill refer to the applicant consistently by that description, rather than attempt to describe him by the respective roles he had in each of the proceedings.) The applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld). The learned primary judge dismissed the appeal: MS v Commissioner of Police  QDC 51 (the appeal reasons).
- The applicant applies for leave pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) to appeal against the dismissal of his appeal against conviction. The grounds of his application are that the primary judge erred in not allowing his appeal based on the existence of parental responsibility in the applicant’s communications and the primary judge erred in not applying s 24 of the Criminal Code (Qld).
- The applicant and his former partner were married to each other in 2008 and there is one child of that relationship. A protection order was made on 8 September 2015 pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) in the Magistrates Court on the application of a police officer against the applicant, naming the applicant’s former partner as the aggrieved and their child as a person also protected by the order. A variation of the protection order was made on 5 September 2017 and the order was notated that the applicant was present in court when the order was made which meant the order commenced immediately from when it was made. Condition 4 of the varied order provided:
“The [applicant] is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
This condition does not apply to the extent that it is necessary for the [applicant] to appear personally before a court or tribunal.
This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling or mediation session.”
- Condition 6 of the varied order provided:
“The [applicant] is prohibited from making telephone calls or sending text messages or emails to the aggrieved.
The [applicant] may without contravening this order make such contact for purposes directly related to parental and contact issues concerning the child/ren but then only as set out in writing between the parties, in compliance with an order of a Court or in emergency circumstances.”
- An order had been made in the Family Court of Australia on 29 September 2016 in relation to the child, ordering that the child live with the mother and the mother to have the sole parental responsibility for the major long term issues of the child. There were detailed orders dealing with the applicant’s treatment for his mental health issues and, upon the applicant providing written confirmation of his compliance with the orders dealing with his treatment and confirmation from his treating doctors that he was compliant with treatment recommended by them and that his mental condition was stable, there were orders about supervised contact between the applicant and his child at a nominated contact centre. Paragraph 18 of the order provided:
“Each party be restrained from communicating with the other party, save and except for the sole purpose of communication regarding parental responsibility and informing each other in the event of an emergency involving the child.”
- The full terms of the charge against the applicant were that the applicant on 8September 2017 at a specified place in Queensland, being a respondent against whom a domestic violence order had been made, contravened the order namely atemporary protection order made on 5 September 2017 in the Magistrates Court in Brisbane and the applicant was present in court when the order was made.
- The applicant admitted before the Magistrate to sending an email intended for his former partner on 8 September 2017. The email referred the named recipients (which included the former partner’s solicitor) to the email (the contents of which are set out below) which was sent by the applicant to a family lawyer with the subject shown as “[The child] need to know about my mental health diagnosis”. Its content was as follows:
My son’s c**t of a mother needs to know I have been diagnosed with OCD Personality Disorder so [the child] can be monitor in case he has it.
I’ll be seeing you c**ts in court soon for a recovery order. I got the disclosure of the firearms and snake shooting report I deliberately went to jail to get as evidence.
Gunna f***ing destroy every one of you c**ts for allowing my beautiful little boy to be alienated.
You knew those c**ts were committing perjury all along c**t.
[The child’s] Daddy”
- Although one of the named recipients appeared to be the former partner, the former partner did not receive the email directly from the applicant, but it was forwarded to her by her solicitor who was another of the named recipients. The contravention was particularised as an attempt by the applicant to contact his former partner by sending the email of 8 September 2017 contrary to conditions 4 and 6 of the protection order.
The proceeding before the Magistrate
- The issues before the Magistrate raised by the applicant that were articulated when making a no case submission were whether the Family Court orders required the applicant to communicate with his former partner regarding parental responsibility, whether the communication was in relation to the applicant’s mental health issues that may affect their child, whether the protection order was inconsistent with the Family Court order and therefore invalid, whether the prosecution had proved to the requisite standard that the applicant had the motive to do anything other than act in accordance with the Family Court order, and whether he was acting in accordance with his duty under s 286 of the Criminal Code (Qld). The no case submission was rejected. The applicant did not call or give evidence before the Magistrate.
- The Magistrate found that there was an attempt by the applicant to contact his former partner by sending the email to an email address for his former partner and that the exceptions to condition 4 of the protection order did not apply to the email sent on 8September 2017. The Magistrate also considered whether the email fell within the exception in condition 6, but found that there was no written agreement between the applicant and his former partner about the child, the communication was not required to comply with an order of the court and there were no emergency circumstances. The Magistrate found the applicant subjectively believed, or apparently believed, that it was an emergency to inform his former partner of his medical condition, but the Magistrate concluded that the belief, if it were held, was without proper foundation and neither the emergency exception to condition 6 nor paragraph 18 of the Family Court order applied to permit the communication.
The appeal to the primary judge
- It is apparent from the appeal reasons that the primary judge, as required by s223(1) of the Justices Act 1986, undertook a rehearing of the charge against the applicant on the basis of the evidence given in the proceeding before the Magistrate. On the basis of that evidence, the primary judge was satisfied (at  of the appeal reasons) that all the elements of the offence had been proved before the Magistrate by admissible evidence. The primary judge then canvassed the grounds of appeal to the District Court which raised defences pursuant to s 22, s 23, s 24 and s 25 of the Code, whether the protection order made under State legislation was inconsistent with the Family Court order made under Commonwealth legislation, whether the attempted communication was for parental responsibility and whether the Magistrate did not properly consider whether the applicant had acted in a reasonable way in the circumstances.
- Before the primary judge, the applicant sought to rely on s 24 of the Code on the basis that he was mistaken that the Family Court orders applied to the subject email. The primary judge disposed of that submission at  of the appeal reasons, describing the purported reliance on s 24 of the Code as “misconceived” in the context of the applicant’s admission that he sent the email, and characterised the submission as aclaim of ignorance of the law to which s 22 of the Code did not apply.
- The primary judge found (at  of the appeal reasons) that there was no inconsistency between the Family Court order and the protection order, as the exception in condition 6 “appropriately made allowance for compliance with other court orders (including orders pursuant to the Family Law Act)”. The primary judge disposed of the applicant’s argument that the email was for “parental responsibility” by concluding (at  of the appeal reasons) that, given the contents of the email, it was not for the “sole purpose of communication regarding parental responsibility”.
- The primary judge found the applicant had failed to make out any of his grounds of appeal and the appeal was dismissed.
Nature of the application for leave to appeal
- Before considering the applicant’s submissions, it is relevant to note the limitations on an application for leave to appeal to this court from the decision of a District Court judge exercising appellate jurisdiction under s 222 of the Justices Act 1886. Those limitations are summarised in McDonald v Queensland Police Service  2 Qd R 612 at . Bowskill J (which whom Fraser and Philippides JJA agreed) noted (at subparagraph (c) of ) that the court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal would not be given lightly, given that an applicant had already had the benefit of two prior judicial hearings. Bowskill J noted (at subparagraph (d) of ) that leave would usually be granted only when an appeal was necessary to correct a substantial injustice to an applicant and there was a reasonable argument that there was an error to be corrected.
The applicant’s submissions
- The written submissions of the applicant for the purpose of the application to this court repeat in large measure the arguments that were put to the Magistrate during the no case submission and are focused on the errors he alleges were made by the Magistrate, rather than directing his arguments to the decision of the primary judge by reference to his nominated grounds for the application for leave to appeal. The applicant did not make any additional oral submissions at the hearing of this application.
- In summary, the applicant’s contentions in his written submissions that relate to the grounds for his application are that the Family Law Act 1975 (Cth) overrides the protection order, all of the issues in the email touch and concern the child’s rights and it was the applicant’s duty to address them despite the protection order, and if he were wrong about the issue of parental responsibility, then s 24 of the Code applied in his favour in respect of his mistake.
Should leave to appeal be granted?
- As the primary judge found, condition 6 of the protection order did not preclude the application of the exception in paragraph 18 of the Family Court order. There was no inconsistency. It is the appropriate characterisation of the subject email by reference to its contents that, as the primary judge found, it was not for the “sole purpose of communication regarding parental responsibility”. It therefore did not fall within the exception for communication provided by paragraph 18 of the Family Court order and therefore did not fall within the exception in condition 6 of the protection order where an email could be sent without contravening the protection order, if it were in compliance with a court order. On that basis, as the primary judge found (at  of the appeal reasons), there was no room for the operation of s 24 of the Code which could not apply to a mistake by the applicant in the interpretation of the Family Court order. Such a mistake would be a mistake of law (for which there was no recourse to s 22 of the Code).
- There is therefore no error shown on the part of the primary judge in respect of the matters raised by the grounds on which the applicant relies for making this application. There is therefore no basis for granting leave to appeal.
- It follows that the application for leave to appeal should be refused.
- Published Case Name:
MS v Commissioner of Police
- Shortened Case Name:
MS v Commissioner of Police
 QCA 31
Holmes CJ, Morrison JA, Mullins JA
02 Mar 2021