May v Queensland Police Service
[2022] QCA 121
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- Unreported Judgment
- Appeal Determined (QCA)
- May v Queensland Police Service[2022] QCA 121
- Add to List
May v Queensland Police Service[2022] QCA 121
May v Queensland Police Service[2022] QCA 121
SUPREME COURT OF QUEENSLAND
CITATION: | May v Queensland Police Service [2022] QCA 121 |
PARTIES: | MAY, Natalie Bianka (applicant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | CA No 323 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2021] QDC 275 (Burnett DCJ) |
DELIVERED ON: | 12 July 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 June 2022 |
JUDGE: | Mullins P |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was appearing in person before a magistrate on a stealing charge – where the magistrate instructed the applicant not to interrupt when the prosecutor or the magistrate was speaking – where the applicant objected to how the magistrate was conducting the proceeding – where the magistrate instructed the applicant not to speak over him when he was trying to speak to her – where the applicant interrupted the magistrate again – where the magistrate ordered the police officer who was the prosecutor to take the applicant into custody – where the order was made pursuant to s 40(3)(b) of the Justices Act 1886 (Qld) – where the applicant physically resisted the prosecutor’s carrying the magistrate’s order to take the applicant into custody – where the applicant was charged with obstruct police officer – where after trial before another magistrate the applicant was convicted of obstruct police officer – where the applicant was late in filing the notice of appeal to the District Court – where the applicant applied for an adjournment of the hearing in the District Court – where the District Court judge refused the adjournment and refused to extend the time for the appeal due to the poor prospects of the appeal – where the applicant applies for leave to appeal the orders of the District Court judge – whether the District Court judge erred in concluding that there were poor prospects of a successful appeal Justices Act 1886 (Qld), s 40, s 222, s 223 Police Powers and Responsibilities Act 2000 (Qld), s 615, s 790, s 796 Barmettler & Anor v Greer & Timms [2007] QCA 170, cited Commissioner of Police v Antoniolli [2021] QCA 237, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited MacGroarty v Clauson (1989) 167 CLR 251; [1989] HCA 34, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited |
COUNSEL: | The applicant appeared on her own behalf |
SOLICITORS: | The applicant appeared on her own behalf |
- [1]MULLINS P: Ms May applies for leave to appeal against the dismissal by Burnett DCJ of the appeal from her conviction by Magistrate Payne of one charge of obstruct police officer (the charge): May v Commissioner of Police [2021] QDC 275 (the reasons). The charge arose out of events that occurred in the Mossman Magistrates Court on 12 October 2017.
- [2]Because of the emphasis by Ms May in her submissions about the order made by the Acting Magistrate on 12 October 2017 to take Ms May into custody that resulted in the circumstances that were the basis of the charge, it is important to state at the outset that this application is concerned with the orders made by the learned District Court judge. The order of the Acting Magistrate precipitated events and is essential to the understanding of the circumstances which resulted in the charge, but the exercise of the power by the Acting Magistrate to make the order is not strictly the subject matter of this application, as it was the conduct of Ms May in response to the police officer who was carrying out the order that resulted in the charge.
- [3]The District Court judge made three orders that are covered by Ms May’s application for leave to appeal. The District Court judge refused Ms May’s application for an adjournment of the appeal and refused leave to extend time for the appeal, in addition to dismissing the appeal.
- [4]For the purpose of the application for leave to appeal against the orders of the District Court judge, Ms May applies for leave to adduce evidence in the form of her affidavit affirmed on 31 May 2022.
The circumstances in which the charge was laid
- [5]The following summary is taken from the transcript of the hearing before the Acting Magistrate and Magistrate Payne’s reasons (unreported, Police v May, BRIS-MAG-00011427/18, 11 February 2020).
- [6]Ms May and her husband had been charged with stealing. That charge was listed for trial in the Mossman Magistrates Court on 12 October 2017. They were appearing for themselves. When the hearing commenced, the people in the courtroom were Ms May and her husband, the police prosecutor Senior Constable Mitchell, the court services officer and the registrar of the Court who was performing duties as an Acting Magistrate.
- [7]The prosecutor informed the Court that the prosecution was ready to proceed, subject to amending the stealing charge to change the complainant from a natural person to a company. Mr and Ms May sought to adjourn the trial and opposed the amendment to that charge. Magistrate Payne had the audio recording and a transcript of the proceeding before the Acting Magistrate. After the prosecutor had recited the history of the proceeding and that the trial had previously been adjourned in April 2017, the Acting Magistrate noted the subsequent mentions of the matter in the Court and Ms May responded to the observations made by the Acting Magistrate. There was an adjournment of the matter for 33 minutes, before the Acting Magistrate amended the stealing charge. There was an issue about case conferencing on which Ms May differed from the prosecutor and there were a number of occasions when Ms May announced she wanted to say something and the Acting Magistrate responded that he was not talking to her at the moment and for her to sit down. Ms May then informed the Acting Magistrate that they had witnesses who were overseas who would be able to show it was a fraudulent claim against them. The prosecutor was then outlining an application that had been made the previous week by the prosecution, when Ms May interrupted him, and the Acting Magistrate then explained to Mr and Ms May that “if someone is speaking from the bar table, unless I interject, you be quiet and wait until they’re finished speaking”. The prosecutor then proceeded with his submissions against an adjournment and Ms May was then given the opportunity to speak. She was complaining about not having a case conference, when the Acting Magistrate interrupted Ms May and Ms May responded that she was losing her concentration and that it was unfair as she wanted to finish her submission. The following exchange then took place between Ms May, the Acting Magistrate and the prosecutor (which is set out at [9] of Magistrate Payne’s reasons):
“BENCH:Sit down.
DEFENDANT N. MAY:All right then. This is an unfair trial. I’ve been screamed at by [the Acting Magistrate].
BENCH:This is – no, listen, madam. Listen. Listen to me now. This is my court, not yours. You will follow my instructions. If I wish to ask you something and clarify it is important that I do so.
DEFENDANT N. MAY:I want to finish my submissions. It is important as well.
BENCH:You’ll have your opportunity later to make submissions to me, if I decide the matter proceeds today. You are merely complicating the process by persisting and speaking over me when I try to speak to you.
DEFENDANT N. MAY:Not correct. I have been interrupted by the [Acting Magistrate] many times now. I did not have a fair chance to present ---
BENCH:All right. Take the defendant into custody. When she’s prepared to comply with my requirements ---
SNR CONST MITCHELL:You’re under arrest.
DEFENDANT N. MAY:Why? No. For what? This is unfair. The judge is biased.”
- [8]The prosecutor attempted to comply with the Acting Magistrate’s direction to detain Ms May and informed Ms May that she was under arrest for contempt of court. The charge of obstruct police officer arose out of Ms May’s response to the prosecutor’s attempts to detain her.
- [9]The police officer who was waiting outside the courtroom to give evidence in respect of the stealing charge, Senior Constable Jarvie, entered the courtroom when he heard the commotion. The witnesses who gave evidence in the trial before Magistrate Payne were the prosecutor, the court officer, Mr May and Senior Constable Jarvie. As was her right, Ms May did not give evidence before Magistrate Payne.
- [10]Ms May was represented by a lawyer before Magistrate Payne. The case advanced on Ms May’s behalf was not that Ms May did not obstruct the police officer, but that Ms May’s conduct before the Acting Magistrate did not provide any basis for the Acting Magistrate to make an order pursuant to s 40(1) of the Justices Act 1886 (Qld) (the Act) and the prosecutor used excessive force and therefore was not acting in the performance of his duties (as required by s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld) (the PPR Act)). On the basis that the order given by the Acting Magistrate under s 40 of the Act was a judicial decision, Magistrate Payne considered (at [55]-[61] of her Honour’s reasons) that she could not review the lawfulness of that order of the Acting Magistrate, relying on Ousley v The Queen (1997) 192 CLR 69, 87 and 124. Magistrate Payne identified two factual issues that had to be determined on the evidence. The first was whether Ms May was seated at the bar table at any time during by the prosecutor’s attempt to detain her and the second was by what means Ms May struck her head.
- [11]According to the prosecutor, Ms May was seated at the far end of the bar table when the Acting Magistrate made the order to detain her and the prosecutor described that she was still seated “but pinning her arms down in front of her and hunkering down forward in her chair”. The prosecutor said that he then placed his hand on Ms May’s right upper arm and, with the other arm, he motioned towards the rear exit. Mr May’s evidence was that the prosecutor took hold of Ms May’s arm while she was standing and at no time was Ms May seated. The court officer stated that Ms May was standing when the Acting Magistrate made the direction and then she was sitting down with her hands in front, clenching her hands on the chair. On the basis that both the court officer and prosecutor described Ms May as holding onto her seat and refusing to stand, when the prosecutor approached Ms May and said, “You’re under arrest”, Magistrate Payne made a finding to that effect (at [22] of her Honour’s reasons).
- [12]It was common ground that during her detention by the prosecutor that Ms May struck her head. The prosecutor said it happened after Ms May stood up, he had hold of her arm, he lost control of her arm, and he was attempting to grab her arm again, when she thrust her head forward and hit her temple on the wall. The prosecutor said that it was a deliberate motion by Ms May and that no force was applied by the prosecutor. Mr May described that the prosecutor “levered” Ms May’s arm up behind her back and she went to her knees and then she flipped forward or fell forward or got slightly pushed forward, where she was “manhandled”, and she hit her head against the wall. The court officer described Ms May trying to pull away from the prosecutor and there was a struggle for the prosecutor to stand Ms May up and when she did stand up she was resisting and fighting against the prosecutor and they went down and Ms May started screaming.
- [13]Magistrate Payne found (at [29] of her Honour’s reasons) that it was likely that it was about the time when the court officer said, “they’ve gone down” that Ms May struck her head. Magistrate Payne noted (at [30]) that Mr May did not describe the police officer as acting aggressively and the prosecutor and court officer both described the incident as Ms May “struggling and offering physical resistance against going with the [prosecutor]”. The Magistrate therefore made a finding of fact (at [31]) that Ms May hit her head during her struggle with the prosecutor as a consequence of the resistance she offered to the police officer attempting to detain her and not as a consequence of force applied by him.
- [14]Magistrate Payne set out (at [34] of her Honour’s reasons) extensive findings of fact based on what her Honour gleaned from the evidence of the witnesses and the assistance provided by the recording of the proceeding. Magistrate Payne found that it took about seven minutes from the time that the prosecutor said, “You’re under arrest” until Ms May was handcuffed and taken to the watchhouse.
Magistrate Payne’s decision
- [15]Magistrate Payne was extremely fair in identifying (at [47] of her Honour’s reasons) anomalies in the proceeding on 12 October 2017. Despite Magistrate Payne’s observing (at [48]) that a “heightened reaction” by Ms May when she was ordered to be detained was understandable, considering the circumstances leading up to the Acting Magistrate’s giving that order to the prosecutor, Magistrate Payne identified the problem for Ms May was that her continued resistance over several minutes did not abate. Magistrate Payne described it as “more than a heightened reaction that might have been reasonable in the circumstances”. Magistrate Payne therefore concluded (at [49]) that Ms May’s protracted physical and verbal resistance did obstruct the prosecutor.
- [16]Magistrate Payne considered (at [52] of her Honour’s reasons) the power that the prosecutor was exercising in responding to the Acting Magistrate’s order was s 796 of the PPR Act. Section 796(1) applies if, under another Act or law, a tribunal (which includes a court) has power to lawfully order the apprehension or detention of a person, including under a warrant or to give any other order or direction for which the help of a police officer may be reasonably necessary. Section 796(2) imposes the duty on a police officer to comply “with any lawful direction, request, or order of the tribunal and any reasonable request the judge or other presiding officer may lawfully make”.
- [17]Magistrate Payne recorded (at [54] of her Honour’s reasons) that the Acting Magistrate ordered Ms May’s detention pursuant to s 40 of the Act. Section 40 provides:
“(1)A person who—
- (a)wilfully insults a justice or a witness or an officer of the court during his or her sitting as, or, as the case may be, attendance in a Magistrates Court or during his or her sitting or, as the case may be, attendance in any examination of witnesses in relation to an indictable offence or who is on his or her way to or from any such court or examination; or
- (b)wilfully misbehaves himself or herself in such a court or in the place where such an examination is being held; or
- (c)wilfully interrupts the proceedings of such a court or examination; or
- (d)unlawfully assaults, or wilfully obstructs a person in attendance at such a court or examination; or
- (e)without lawful excuse, disobeys a lawful order or direction of such court or justice;
may by oral order of such court or justice, be excluded from such court or examination and, whether the person is so excluded or not, may be summarily convicted by such court or justice of contempt.
- (2)A person convicted under subsection (1) is liable to a maximum penalty of 84 penalty units or imprisonment for 1 year.
- (3)A person referred to in subsection (1)—
- (a)may be dealt with under this section without a complaint being made or a summons being issued in respect of the person; and
- (b)may be taken into custody by a police officer on order of such court or justice and without further warrant; and
- (c)may be called upon by such court or justice to show cause why the person should not be convicted of contempt under this section; and
- (d)may be dealt with by such court or justice under this section upon the court’s or justice’s own view, or upon the evidence of a credible witness.
- (4)A court or justice may, if it or the justice thinks fit, accept from any person convicted by it or the justice of contempt under this section, an apology for such contempt and may recommend that the Governor in Council remit or respite any fine or punishment imposed on such person in respect of such contempt.”
- [18]Magistrate Payne noted (at [63] of her Honour’s reasons) that a remedy for Ms May to test the lawfulness of the Acting Magistrate’s order to detain her was by seeking a prerogative order pursuant to ch 5 of the Judicial Review Act 1991 (Qld) from the Supreme Court (which Ms May did not do). As Magistrate Payne found that she did not have power to review the lawfulness of the order of the Acting Magistrate, Magistrate Payne concluded (at [65]) that the prosecutor was acting in the performance of his duty when detaining Ms May in accordance with the order to do so made by the Acting Magistrate.
- [19]Magistrate Payne concluded (at [81]-[83] of her Honour’s reasons) that Ms May demonstrated by her statements and physical acts that were the subject of findings made by Magistrate Payne that, short of physical restraint, she would not go with the prosecutor to the watchhouse and that the prosecutor did not use excessive force either when he physically touched Ms May’s arm and gestured towards the exit door or when Ms May sat down and he attempted to put a hold on her arm in an effort to get her to go with him to the watchhouse.
- [20]Upon finding Ms May guilty of the charge in contravention of s 790(1)(b) of the PPR Act, Magistrate Payne discharged Ms May absolutely with no conviction recorded. (It should be noted that the finding of guilt in respect of the charge was the only conviction sustained by Ms May as a result of the events on 12 October 2017. As recorded in the reasons at [4], the Acting Magistrate did not pursue the charge of contempt against Ms May after she was taken into custody on 12 October 2017, as she subsequently apologised to the Acting Magistrate who determined not to take action under s 40 of the Act and discharged her in respect of the matter.)
Appeal to the District Court
- [21]Ms May had a right of appeal to the District Court pursuant to s 222 of the Act. Her notice of appeal was filed on 27 March 2020 and was about 16 days out of time.
- [22]The District Court judge noted (at [9] of the reasons) that the appeal had progressed slowly. There were difficulties in setting the matter down for a hearing (which no doubt were contributed to by the constraints of the COVID-19 pandemic). Ultimately, the registrar wrote to Ms May requesting that she nominate a date that suited her for the appeal and the District Court judge recorded (at [12]-[13] of the reasons) that, when Ms May indicated she would be available on 8 October 2021, the appeal was set down for that date and the notice of hearing and advice as to the consequence of non-appearance was given by the registrar on 11 August 2021.
- [23]The District Court judge recorded (at [13] of the reasons) that Ms May sent an email on 27 September 2021 applying for an adjournment until the end of January 2022 or later, as Ms May would be in transit on a yacht between Fiji and Europe on 8 October 2021. The District Court judge noted (at [15]) that the respondent opposed the application for adjournment, (at [15]-[16]) that further requests were made by Ms May for an adjournment, and (at [17]) that she was informed the matter remained listed and she had leave to appear at the hearing by telephone. The appellant did not appear at all on 8 October 2021 and the District Court judge proceeded to deal in her absence with Ms May’s applications and the appeal. (In view of Ms May’s communications with the registrar seeking an adjournment of the hearing date, there was no issue that she was unaware of the hearing date for her application to extend the time to appeal (and the appeal, if the extension were granted), unless her requested adjournment of the hearing date was successful.) There is no ground in the application for leave to appeal to this Court that directly contends that the District Court judge erred in proceeding in Ms May’s absence.
- [24]The District Court judge noted (at [19]) of the reasons that Ms May had delivered to the Court “a comprehensive 17-page outline” which the District Court judge proceeded to consider, in addition to embarking on a rehearing on the basis of all the material before Magistrate Payne, including listening to the audio recording of the proceeding on 12 October 2017, which was in accordance with s 223(1) of the Act. Although one of Ms May’s grounds for the application for leave to appeal is that the District Court judge failed to have regard to the audio recording, it is apparent from [2], [3], [21], [24] and [27] of the reasons that the District Court judge did listen to the audio recording of 12 October 2017 before delivering his reasons. What the District Court judge stated at the commencement of [21] of the reasons was to the effect that it was prior to the appeal that he had not listened to the audio recording of the proceeding on 12 October 2017. His Honour reserved his decision and it is apparent from the reasons that he used the opportunity to listen to the audio recording, before giving judgment.
- [25]Although only a short period of extension was required by Ms May, the District Court judge did not grant it for the reasons (set out at [22] of the reasons) that no reasonable basis or excuse had been proffered for the delay and the merits of the appeal were so poor, as to not to warrant an extension of time. That was an application by the District Court judge of the test set out in R v Tait [1999] 2 Qd R 667, 668 that on an application for extension of time in criminal appeals “the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension” and the latter “may involve some assessment of whether the appeal seems to be a viable one”.
- [26]The District Court judge proceeded (at [26]-[38] of the reasons) to analyse the evidence that was before Magistrate Payne.
- [27]The District Court judge had identified (at [23] of the reasons) that two grounds of appeal relied on by Ms May were Magistrate Payne’s making an error in finding as a matter of law that she could not review the decision of the Acting Magistrate and in finding that the level of force used by the prosecutor was not excessive which Ms May asserts was not the test in relation to use of force. As to the first ground, the District Court judge endorsed (at [40]) Magistrate Payne’s conclusion that there was no right of review by one magistrate of another magistrate’s (judicial) orders or rulings. The District Court judge then expressed (at [41]) that the order made by the Acting Magistrate was not unlawful in the circumstances where “he had before him evidence of interruption”, even though the Acting Magistrate gave Ms May no warning of his intention to exercise his powers under s 40 of the Act. The District Court judge then proceeded (at [43]-[45]) to analyse the matter on the basis that, if he were wrong in respect of his view on the facts, he was of the opinion that the latter part of s 796(2) of the PPR was engaged and that the prosecutor responded to “any reasonable request the judge … may lawfully make”.
- [28]On the basis of the evidence of the prosecutor to the effect that he responded with escalating force in response to Ms May’s escalation of resistance, the District Court judge found (at [47] of the reasons) that the level of force applied in the arrest was reasonable and appropriate within the meaning of s 615(1) of the PPR Act and was therefore not excessive and rejected the challenge to Magistrate Payne’s finding in that respect. The District Court judge also recorded (at [48]) Ms May’s reliance on self-defence on the appeal that was not argued before Magistrate Payne and rejected that submission on the basis that the arrest itself was lawful and therefore no issue of self-defence arose.
Whether leave should be given to adduce evidence
- [29]Ms May’s affidavit affirmed on 31 May 2022 sets out her version of what occurred before the Acting Magistrate on 12 October 2017. It is inappropriate to receive that evidence, when Ms May did not give evidence before Magistrate Payne. The affidavit also deals with the aftermath of her arrest, particularly the cancellation of her visa and her being held in immigration detention. It is understandable, particularly from the viewpoint of a self-represented litigant, that these were significant repercussions for her in relation to her immigration status which she links to the Acting Magistrate’s ordering that she be taken into custody and submits resulted in a substantial injustice being inflicted on her. That does not equate to substantial injustice in the proceeding for the charge that was directly concerned with Ms May’s physical response to the prosecutor’s carrying out the order of the Magistrate to take her into custody. Those repercussions set out in Ms May’s affidavit are not relevant to the issues that were raised on Ms May’s appeal to the District Court which were confined to whether any error of law was made by Magistrate Payne or whether the District Court judge on a rehearing on the evidence adduced before Magistrate Payne reached the same conclusion on the facts necessary to prove guilt of the charge beyond reasonable doubt. Those significant repercussions experienced by Ms May that followed the order of the Acting Magistrate under s 40 of the Act do not bear on whether Ms May was convicted properly of the charge. The application for leave to adduce evidence must therefore be refused.
What should be shown on an application for leave to appeal to this Court
- [30]The question of whether the District Court judge erred in refusing to adjourn the hearing of the appeal and whether the District Court judge erred in refusing to extend the time for the appeal was determined by the District Court judge’s conclusion (at [19], [22], [47] and [51] of the reasons) as to the poor prospects of a successful appeal by Ms May to the District Court. It is therefore appropriate to consider whether Ms May can show that the District Court judge was in error in reaching the conclusion that his Honour did about the prospects of her appeal to that court.
- [31]What usually should be shown by an applicant for leave to appeal from a judgment from the District Court in its appellate jurisdiction was summarised by Bowskill J (as the Chief Justice then was and with whom Fraser and Philippides JJA agreed) in McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]. It was noted at paragraph (c) of [39] that the Court’s discretion to grant or refuse leave to appeal “is unfettered, exercisable according to the nature of the case”, but that discretion is exercised in the context that an applicant has already had the benefit of two judicial hearings and “leave to appeal will not be given lightly”. As was then observed at paragraph (d) of [39], “leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected”. The difference between an appeal under s 222 of the Act to a District Court judge exercising appellate jurisdiction and an appeal to this Court, if leave to appeal were granted, is explained further in McDonald at paragraphs (e), (f) and (g) of [39]. See also Commissioner of Police v Antoniolli [2021] QCA 237 at [2] (per Holmes CJ) and at [116]-[117] (per Bond JA with whose reasons Flanagan J agreed).
Did the District Court judge err about the prospects of the appeal?
- [32]It is not convenient to summarise Ms May’s grounds relied on for the application to appeal to this Court. The application for leave states that all 52 paragraphs of the District Court judgment are the subject of appeal and 26 grounds for the application are then listed. Some grounds relate to inconsequential errors in the reasons, such as the District Court judge’s stating the events of 12 October 2017 took place at Mareeba rather than Mossman. On the issues that count, however, there is no discernible error in the District Court judge’s reasons for the following reasons.
- [33]The acts committed by Ms May that resulted in the charge were in response to the prosecutor’s carrying out the order made by the Acting Magistrate to take her into custody. That order was given pursuant to s 40(3)(b) of the Act and applies to a person referred to in s 40(1) of the Act. There are two possible orders that can be made under s 40(1) of the Act where the magistrate considers that the relevant person has behaved in the manner set out in any of paragraphs (a) to (e) of subsection (1). The order can either exclude the person from the courtroom or summarily convict the person of contempt. It is apparent from s 40(3) of the Act that the taking of Ms May into custody on the order of the Acting Magistrate preceded the further steps that were required before she could be summarily convicted of contempt. Before a person can be summarily convicted of contempt under a provision such as s 40(1) of the Act, the person must be informed of the specific offence charged and given an adequate opportunity of answering the charge: MacGroarty v Clauson (1989) 167 CLR 251, 255-256 and 257 and Barmettler & Anor v Greer & Timms [2007] QCA 170 at [29].
- [34]The prosecutor perceived correctly from the Acting Magistrate’s order that Ms May be taken into custody that was the step preparatory to dealing with her for a charge of contempt. The Acting Magistrate made an order that the Acting Magistrate was empowered to do so under s 40(1) and, even though, if the contempt charge had been pursued Ms May may have challenged whether her behaviour was sufficiently egregious to bring her within any of paragraphs (a) to (e) of s 40(1), the order of the Acting Magistrate was lawful until set aside and was sufficient authority for the prosecutor to act pursuant to s 796 of the PPR Act. The question of whether the Acting Magistrate should have made such an order in the circumstances was not for the prosecutor to deliberate upon or debate with the Acting Magistrate, but the order to take Ms May into custody authorised the prosecutor to proceed on the basis that a lawful order had been made. It was not for Magistrate Payne in dealing with the charge to undertake a collateral review of the making of a judicial order by the Acting Magistrate permitted by s 40(3) of the Act. There was therefore no error of law in the District Court judge affirming Magistrate Payne’s holding that she could not review the judicial order of another magistrate.
- [35]The relevant finding of fact made by Magistrate Payne about the reasonableness of the force used by the prosecutor in taking Ms May into custody was affirmed by the District Court judge on the rehearing. As Ms May’s lawyer did not argue before Magistrate Payne that Ms May did not obstruct the prosecutor in his attempts to take her into custody, the only real issue of fact to be determined was the reasonableness of the force used by the prosecutor to take Ms May into custody. On the basis of the evidence of the prosecutor and the court officer accepted by Magistrate Payne after hearing the witnesses who were present during the events with the benefit of the audio recording of the events and analysed again in some detail by the District Court judge, there is no scope for Ms May to show on an appeal to this Court that the finding of the reasonableness of the force used by the prosecutor in taking Ms May into custody was “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118 at [29]. Apart from Fox v Percy, Ms May relied on other authorities during her oral submissions on the application in this Court, including Berry v Commissioner of Police [2015] 1 Qd R 388 and Commissioner of Police v Toomer [2011] QCA 233. In those two cases, there were successful applications for leave to appeal made to this Court and the appeals were allowed on the basis of errors of law, but those cases turn on the circumstances of the respective cases and nothing in the judgments assists Ms May in challenging the orthodox fact finding that was undertaken by Magistrate Payne after a trial.
- [36]It is not necessary to deal with the detail of Ms May’s written submissions, as they raise many issues that were not relevant to the proceeding for the charge before Magistrate Payne, such as s 23, s 24, s 25 and s 271 of the Criminal Code (Qld). The District Court judge was not in error in his conclusion about Ms May’s prospects on her appeal to that court. As the exercise of the District Court judge’s discretion to refuse the adjournment and the extension of time for the appeal depended upon the appeal being viable, there was no error in the District Court judge’s refusing both applications. Strictly speaking, as those applications were refused, it was not necessary for the District Court judge to order that the appeal be dismissed, as the District Court judge only considered the outcome of the appeal for the purpose of dealing with those applications. There is no consequence for the parties in that order dismissing the appeal being made after the refusal of the application to extend time for the appeal that had to be granted before an appeal could be heard. Ms May has not shown that there is reasonable argument that there is an error in the District Court judge’s refusal of the applications and therefore does not succeed on her application to this Court.
A note of caution
- [37]The power conferred on a magistrate under s 40 of the Act is an important provision to enable a magistrate to exercise full control over the proceeding in the courtroom, when a person in the courtroom behaves in a way that does not show proper respect for the institution of the court or for the magistrate, such as behaving in an insulting manner towards the magistrate or another person in the courtroom, interrupting the proceeding or disobeying a lawful order or direction of the magistrate. There are many occasions when a magistrate may feel frustrated by the conduct of a litigant in person, a party, a witness or even a lawyer, but a magistrate should be cautious about recourse to s 40 of the Act in order to avoid unanticipated consequences, such as occurred in this matter for the immigration status of Ms May.
Orders
- [38]The orders are therefore:
- Application for leave to adduce evidence refused.
- Application for leave to appeal refused.