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Karamaroudis v Director of Public Prosecutions[2023] QCA 42

Karamaroudis v Director of Public Prosecutions[2023] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

Karamaroudis v Director of Public Prosecutions (Qld) [2023] QCA 42

PARTIES:

TASO KARAMAROUDIS

(appellant)

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(respondent)

FILE NO/S:

Appeal No 10906 of 2022

SC No 9603 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 18 August 2022 (CooperJ)

DELIVERED ON:

17 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2022

JUDGES:

Mullins P and Morrison and Dalton JJA

ORDERS:

  1. 1.The applications filed on 26 September 2022, 19 October 2022, 24 October 2022, 26 October 2022 and 18 November 2022, for leave to adduce further evidence and to rely on further affidavits, are refused.
  2. 2.Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where the appellant was charged with the unlawful stalking of the complainant – where the appellant was on bail in relation to that charge – where, at the time of the alleged offending, the appellant had lived in the same street as the complainant – where the complainant remained living in that street – where the special conditions of the appellant’s bail had been varied by a Magistrate to include a 300 metre exclusion zone around that street – where the appellant applied to the Supreme Court to have that special condition removed – whether the primary judge erred in finding that the appellant had not demonstrated that the bail condition was more onerous than is required to reduce the relevant risks under the Bail Act 1980 (Qld) to an acceptable level – whether the primary judge had applied the wrong section of the Bail Act 1980 (Qld) – whether the primary judge had failed to consider relevant evidence in assessing the appellant’s application – whether the appellant had been denied procedural fairness, natural justice and reasonableness due to actions of the primary judge

Bail Act 1980 (Qld), s 11(2), s 11(5), s 16, s 19B

Clumpoint v Director of Public Prosecutions (Qld) [2005] QCA 43, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

COUNSEL:

The appellant appeared on his own behalf

C W Wallis for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS P:  I agree with Morrison JA.
  2. [2]
    MORRISON JA:  The appellant is presently charged with one count of unlawful stalking between 1 February 2018 and 25 March 2021.  During a period of the alleged offending, the appellant lived at Duke Street in Cannon Hill.
  3. [3]
    The complainant also lived in that street and continues to do so.
  4. [4]
    The appellant was initially granted bail on 12 April 2021.  That bail was granted subject to a number of conditions.  One was that he have no contact with residents of Duke Street.  Another was that he reside at a specified address in New Farm.  Yet another was that he not attend the suburb of Cannon Hill.
  5. [5]
    On 22 April 2021, the appellant sought to vary the bail conditions in certain respects, including permitting him to return to his residence in Duke Street.  That application was refused.
  6. [6]
    The conditions were subsequently varied on a number of occasions, including:
    1. (a)
      on 5 July 2021, a curfew condition was removed;
    2. (b)
      on 3 November 2021:
      1. the requirement that the applicant report to Police was varied to reduce the regularity of reporting; and
      2. the condition precluding the appellant from attending Cannon Hill was reduced to an exclusion zone: “The defendant must not go within 300 metres of Duke St Cannon Hill” (condition 4); and
    3. (c)
      on 4 August 2022, the requirement that the applicant continue to report on a regular basis to police was removed, as was a requirement that he reside at the specified address.
  7. [7]
    On 12 August 2022, the appellant applied to set aside condition 4.
  8. [8]
    The basis of the application was that condition 4 should be removed “as it is obvious after all the evidence submitted by me, that I was wrongfully charged in the first instance”.[1]  The general nature of the appellant’s case can be gleaned from the outline filed by the applicant on that hearing:[2]
  1. “6.The primary reason for the Applicant's application to seek the removal of the last bail condition (4), is the last bail condition (4) is a mechanism the Qld Police can use to falsely jail the Applicant, as the Applicant has proven in his Affidavit in Support of Bail Review, sworn 12 August 2022, (the Applicant’s Affidavit in Support), at no material time have the Qld Police produced any evidence to show why the Applicant was arrested, charged and imprisoned in the first instance.
  2. 7.The Applicant's Affidavit in Support clearly shows the arresting Qld Police Officer, supporting Qld Police Officers and the alleged victim, [the complainant], have allegedly fraudulently and negligently colluded and in the process of that collusion the arresting Qld Police Officer, the supporting Qld Police Officers and [the complainant], have allegedly created numerous breaches of criminal statute to ensure the Applicant was wrongfully arrested, charged and imprisoned.
  3. 8.The Applicant has a well-founded fear and apprehension that the Qld Police will jail the Applicant to cover up the numerous alleged crimes of the arresting Qld Police Officer, the supporting Qld Police Officers and [the complainant].”
  1. [9]
    The outline went on to make numerous allegations of deceit and fraudulent conduct by Police, including attempting to pervert the course of justice and perjury.
  2. [10]
    On 18 August 2022, the application was dismissed by the primary judge.
  3. [11]
    The appellant appeals against that decision on grounds that may be grouped as follows:
    1. (a)
      the appellant was denied procedural fairness, natural justice and reasonableness because the primary judge:
      1. Ground 1 – failed to bring to the attention of the parties at the commencement of the hearing that certain affidavits on which the appellant was relying, and which ought to have been supplied to the Court, had not been supplied to the Court;
      2. Ground 2 – failed to bring to the attention of the parties at the re-commencement of the hearing after an adjournment, and during the hearing thereafter, that relevant evidence attached to affidavits on which the appellant relied was missing from those affidavits;
      3. Ground 3 – failed to ensure that, at the re-commencement of the hearing, each of the parties were supplied with the affidavit material that had been determined to be missing;
      4. Ground 5 – discouraging the appellant from making submissions outlining: (i) illegalities allegedly committed by members of the Queensland Police force since the time of his arrest; and (ii) inconsistencies in the statement provided to police by the alleged victim, and doing so without having regard to the circumstances of the appellant, and the public interest as specified in s 11(5) of the Bail Act 1980 (Qld) (Bail Act);
      5. Ground 8 – by defining the emotional stability of the appellant as an inconvenience;
    2. (b)
      Ground 4 – when refusing to make an Order striking out the bail condition, his Honour failed to consider the evidence as relevant evidence was, in breach of statute, not attached to the affidavits filed in the Magistrates Court and brought before the Court in accordance with s 19B(8) of the Bail Act;
    3. (c)
      Grounds 6 and 7 – his Honour erred in law by applying s 16(1), not applying s 11(2)(a), s 11(2)(b) and s 11(5), of the Bail Act; and
    4. (d)
      Ground 9 – his Honour erred in law by making comment during the hearing to the effect that the submissions by the appellant in relation to illegalities allegedly committed by members of the Queensland Police force since the time of his arrest, and inconsistencies in the statement provided to Police by the alleged victim, were irrelevant to the proceeding.
  4. [12]
    The appellant also filed five applications to have prior affidavits filed by him included in the record book for this appeal, or to be available to this Court on the appeal.[3]  There was a considerable degree of overlap in the applications, but the affidavits were identified as those filed on:
    1. (a)
      in the Supreme Court: 28 June 2022; 18 September 2022; 23 September 2022; 26 September 2022; 18 October 2022; 24 October 2022; and 18 November 2022;
    2. (b)
      in the District Court: 4 April 2022;
    3. (c)
      in the Brisbane Magistrates Court: 10 November 2021, Annexure B; and 21 January 2021, Annexure L; and
    4. (d)
      court not specified: 24 October 2022, Exhibit TK-2.
  5. [13]
    Taking the three applications filed 24 October, 26 October and 18 November 2022 together, the appellant also stated that, in those applications, he intended to rely upon a total of 18 affidavits he had previously filed:
    1. (a)
      in the Wynnum Magistrates Court: 17 September 2021;
    2. (b)
      in Brisbane Magistrates Court: 10 November 2021; 21 January 2022; 25 March 2022; 11 April 2022; and 30 May 2022;
    3. (c)
      in the District Court: 4 April 2022;
    4. (d)
      in the Supreme Court: 28 June 2022; 23 September 2022; 12 August 2022; 15 August 2022; 18 October 2022; 24 October 2022; and 18 November 2022; and
    5. (e)
      the affidavits in support of leave to adduce further evidence, in the Supreme Court: 26 September 2022; 18 October 2022; 24 October 2022; and 18 November 2022.
  6. [14]
    As is evident from the preceding paragraphs, there was a substantial degree of repetition in the lists.  As I will discuss later, there was no proper focus on limiting the evidence relied upon to that which was relevant to the issues in the case before the learned primary judge or this Court.
  7. [15]
    At the hearing of the appeal, the Court reserved all questions relating to the applications mentioned above.
  8. [16]
    For the reasons given below, the appeal must be dismissed.

The reasons of the primary judge

  1. [17]
    The application was framed as a review of the bail conditions under s 19B of the Bail Act.  Condition 4 had been originally imposed by a Magistrate on 3 November 2021, and remained in place at the last bail hearing on 4 August 2022.
  2. [18]
    The hearing before the primary judge was on 18 August 2022, seven days before the stalking charge was to be next reviewed in the Magistrates Court.
  3. [19]
    The learned primary judge identified the issue before him in this way:[4]

“The issue raised on the present application is whether the restriction upon the applicant going within 300 metres of Duke Street in Cannon Hill is more onerous than is required to reduce the relevant risks identified in section 16(1) of the Bail Act 1980 (Qld) to an acceptable level. In particular, the question is whether the removal of that exclusion condition and the likelihood of interaction between the applicant and the complainant or other Crown witnesses who live in that area would present an unacceptable risk that the applicant would endanger the safety or welfare of such a person or interfere with those witnesses.”

  1. [20]
    His Honour noted that the appellant stated that he did not intend to live at Duke Street and had no reason to go to Duke Street, but he wished to have the condition removed because, in his view, he had been wrongfully charged.  His case was also that condition 4 was too onerous because it prevented him from visiting friends who reside within 300 metres of Duke Street, visiting a particular park, or going to shops in that area, and it caused him embarrassment when he had to explain the reason he was excluded.[5]
  2. [21]
    His Honour’s decision was expressed in this passage:[6]

“Notwithstanding those matters, the fact that the applicant has made serious allegations about the complainant’s conduct including allegations of fraud and collusion between the police and the complainant, an allegation of a conspiracy to commit perjury, the assertion that the complainant was, in fact, fixated on him and that she was stalking him, does indicate that any interaction between the applicant and the complainant would present an unacceptable risk of one of the matters I have discussed. On that basis, I am not satisfied that the inconvenience which the applicant has referred to renders the existing exclusion more onerous than is required to reduce the relevant risks to an acceptable [level]. The application to vary the applicant’s bail further to remove the exclusion zone around Duke Street, Cannon Hill, is refused.”

The relevant legislation

  1. [22]
    The Bail Act contains three sets of provisions which are relevant to the issues on the appeal.
  2. [23]
    The first is s 11, which deals with the conditions that might be attached to a grant of bail.  As will be discussed, s 11 was relied upon by the appellant during the course of his submissions before the learned primary judge.  It relevantly provides:

“11 Conditions of release on bail

…

  1. (1)
    A court or police officer authorised by this Act to grant bail shall consider the conditions for the release of a person on bail in the following sequence—
  1. (a)
    the release of the person on the person’s own undertaking without sureties and without deposit of money or other security;
  2. (b)
    the release of the person on the person’s own undertaking with a deposit of money or other security of stated value;
  3. (c)
    the release of the person on the person’s own undertaking with a surety or sureties of stated value;
  4. (d)
    the release of the person on the person’s own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value;

but shall not make the conditions for a grant of bail more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.

  1. (2)
    Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—
  1. (a)
    appears in accordance with the person’s bail and surrenders into custody; or
  2. (b)
    while released on bail does not—
  1. (i)
    commit an offence; or
  2. (ii)
    endanger the safety or welfare of members of the public; or
  3. (iii)
    interfere with witnesses or otherwise obstruct the course of justice whether in relation to the person or another person;

Examples of special conditions for paragraph (b)(ii) —

  • a special condition that prohibits a person from associating with a stated person or a person of a stated class
  • a special condition that prohibits a person from entering or being in the vicinity of a stated place or a place of a stated class

that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes.

…

  1. (5)
    Conditions imposed pursuant to subsection (2) shall not be more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.”
  1. [24]
    The second is found in s 16, which deals with refusal of bail generally, and relevantly provides:

“16 Refusal of bail generally

  1. (1)
    Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to the defendant if the court or police officer is satisfied—
  1. (a)
    that there is an unacceptable risk that the defendant if released on bail—
  1. (i)
    would fail to appear and surrender into custody; or
  2. (ii)
    would while released on bail—
  1. (A)
    commit an offence; or
  2. (B)
    endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
  3. (C)
    interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
  1. (b)
    that the defendant should remain in custody for the defendant’s own protection.

…

  1. (2)
    In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—
  1. (a)
    the nature and seriousness of the offence;
  2. (b)
    the character, antecedents, associations, home environment, employment and background of the defendant;
  3. (c)
    the history of any previous grants of bail to the defendant;
  4. (d)
    the strength of the evidence against the defendant;…”
  1. [25]
    The third is found in s 19B, which was invoked by the appellant’s formal application before the learned primary judge.  It relevantly provides:

“19B Review of particular decisions

  1. (1)
    This section does not apply to the following decisions about release under this part—
  1. (a)
    a decision by the Supreme Court;
  2. (b)
    a decision under section 10(2);
  3. (c)
    a decision by a magistrate acting as a reviewing court under this section.
  1. (2)
    If a decision has been made about release under this part or the Youth Justice Act 1992, part 5, for a defendant, the defendant, complainant or prosecutor or a person appearing on behalf of the Crown may apply to the reviewing court for a review of the decision.
  2. (3)
    The reviewing court is—
  1. (a)
    for a decision by a police officer or justice who is not a magistrate—a Magistrates Court constituted by a magistrate; or
  2. (b)
    for any other decision—the Supreme Court constituted by a single judge.

…

  1. (6)
    On the review, additional or substitute evidence or information may be given and the reviewing court may make any order it considers appropriate.
  2. (7)
    However, the orders that may be made under subsection (6) are limited by sections 13 , 16 , 16A and 17(1A) and, if the defendant is a child, the Youth Justice Act 1992, sections 48, 48AAA, 48AE and 48A.
  3. (8)
    The person or court that made the decision under review must give the reviewing court any documents in the person’s or court’s possession that may be relevant to the review.
  4. (9)
    The reviewing court must decide an application under this section as soon as is reasonably practicable.”

Consideration

  1. [26]
    It is convenient to consider the points advanced by the appellant in sequence, making reference where necessary to the applications to adduce further material or upon which reliance was placed by the appellant.

Denial of procedural fairness – missing affidavit material

  1. [27]
    The appellant contended that he was denied procedural fairness in the way the hearing was conducted before the learned primary judge.  The central submission was, in summary:
    1. (a)
      the evidence on which the appellant was relying was not, in breach of statute, brought before the court for the commencement of the hearing;
    2. (b)
      when he objected, an adjournment was ordered, and at the re-commencement of the proceeding, some material was provided to the court by the Magistrates Court and marked as exhibits 1–6; however, the material did not include USB sticks which contained the relevant material on which he would be relying;
    3. (c)
      the appellant was not included as a party to receive the material, so he did not know when the hearing re-commenced, nor, during the course of the hearing, that the USB sticks were missing from the provided affidavits now marked as exhibits 2 and 3.
  2. [28]
    At the commencement of the hearing below, it became apparent that affidavits upon which the appellant wished to rely were referred to in his affidavit in support of the bail review, but were not actually attached.  The appellant explained to his Honour that:[7]

“I was told that the registry - that they would be brought over from the Magistrates Court, and there is provision in the law for that to happen, I believe under - in the Bail Act there is provision for - for - it's actually law that such material be provided by, in this case, the Magistrates Court to the Supreme Court.”

  1. [29]
    The respondent’s Counsel told his Honour that she would consent to an adjournment so that the material could be obtained.[8]  After further submissions, his Honour stood the matter down so that his Honour’s associate could try to have the files brought to the court.[9]  The matter was adjourned at 11.10 am until 3.30 pm, a period of more than four hours.
  2. [30]
    On resumption the affidavits from the Magistrates Court were marked as exhibits 1–6, and the appellant commenced his submissions.
  3. [31]
    The course of the hearing is set out below in paragraphs [36]–[47].  A consideration of those matters make several things clear, in my view.
  4. [32]
    First, his Honour was right to conclude that the appellant’s case that the charge was improperly brought, that Police had acted improperly, and that the complainant acted improperly, involved issues that were unable to be resolved on an application concerned with the removal of a bail condition.  The test of those allegations would come when a challenge to the charge itself was brought, or the trial occurred.
  5. [33]
    Secondly, that meant that the material going to those issues was irrelevant to the issues concerning removal of condition 4.  It therefore did not disadvantage the appellant that some of that material was missing from the affidavits that became exhibits 1–6.  Nor did it matter that his Honour did not review all the material going to those issues.
  6. [34]
    Thirdly, the fact that such material had not been sent from the Magistrates Court did not contravene s 19B(8) of the Bail Act. That section only requires the first court to give “documents in the person’s or court’s possession that may be relevant to the review”.  The missing documents were irrelevant.
  7. [35]
    This ground fails.

Course of the hearing below

  1. [36]
    The appellant’s filed application sought, on its face, relief under s 19B of the Bail Act:[10]

“Re an application to have bail condition set aside by Taso Karamaroudis, in accordance with Bail ACT 1980 (Qld) ss 19B(3)(b), (6), (8), (9) Review of particular decisions”

  1. [37]
    The body of the application stated that it sought “an order that the bail condition listed below be set aside” and described it as a “Review from Brisbane Magistrate Court decision 4 August 2022”.[11]
  2. [38]
    The appellant’s outline below submitted that jurisdiction lay under s 19B of the Bail Act, but also submitted that “attention must also be placed on the legislative provisions of the Bail Act 1980 … ss 16(2)(a)-(d)”, then setting those provisions out.[12]  The outline later made a submission, by reference to the relevant parts of s 16(2), as to why there was no basis to maintain condition 4.[13]  The outline then quoted from Clumpoint v Director of Public Prosecutions (Qld),[14] submitting that it demonstrated why “condition 4 ought to be removed”:

“… the balancing exercise that on the evidence before it this Court must undertake under the Bail Act (including the presumption of innocence and the principle that no person should be punished without conviction which underlies s 9) favours the conclusion that the bail condition preventing Mr Clumpoint from living on Palm island is now more onerous than necessary. It should be removed.”

  1. [39]
    The respondent’s submissions went through the history of the bail conditions and the variations made to them.  The submission was made that:[15]

“The substantive charges remain on foot. The applicant's reasons for seeking the variation are matters relevant to a hearing of the matter. They are not relevant to whether the current conditions are too onerous.”

  1. [40]
    The outline then addressed the question whether condition 4 was “too onerous”, contending that the condition was required to ensure the appellant “does not interfere with witnesses and commit further offences”.  In doing so, reference was made to s 11(2) of the Bail Act.[16]
  2. [41]
    That was the state of the cases being advanced when the hearing below commenced.
  3. [42]
    In his oral submissions, the appellant relied upon s 16(2) of the Bail Act and whether condition 4 was onerous in the circumstances:[17]

“ … we have one stain left on the face of justice, one bail conditions that needs to be removed, not just in accordance with section 16B(2)(a), (b), (c) and (d), but in the interests of justice itself. The remainder of the bail conditions I do not object to, your Honour, as I feel they protect me. They do not present as onerous as the condition I seek to be removed does, and I consider I can exist with them until the substantive matter can be finalised.”

  1. [43]
    The submissions continued, without interruption, with the appellant concentrating on his allegations of Police misconduct in bringing the charge.  He then returned to the question of whether the condition was too onerous:[18]

“I submit, in accordance with section 16B(2) that it is too onerous, in the circumstances, for the condition to remain. There is embarrassment when I have to explain the legal situation when I am a passenger in a car. It affects my emotional stability, my emotional wellbeing. I cannot visit parks or the houses of people I have not seen since March of 2021, people I have known for quite a few years, people that are dear friends and acquaintances.”

  1. [44]
    The appellant then returned, uninterrupted, to detailed submissions concerning the lack of any proper basis for the Police to lay the charge.  His Honour finally interrupted the appellant:[19]

“HIS HONOUR:  Mr Karamaroudis, at the risk of interrupting you, much of what you’re saying seems to go to matters that are relevant to the ultimate trial of the offences which you've been charged with. The Bail Act certainly talks about the strength of the evidence against you as a relevm1t factor in whether or not bail ought to have been granted. That has been taken into account in granting you bail. Conditions have been imposed and, by a series of applications, those conditions have been varied.

What you - and I think you appreciate this, but what you have to persuade me of on this application is that the 300-metre exclusion from Duke Street in Cannon Hill is more onerous than is necessary … to reduce the risk of you, it said, interfering with witnesses or reoffending but it really is the risk of you coming into contact with the complainant here.”

  1. [45]
    The appellant then explained why, in his submission, condition 4 was too onerous.  He explained that the reason he “was bringing up the other issues is because even though I’ve just explained the practical justification for seeking the order struck out, there is an argument, I think, to be presented that - that I shouldn't have been charged in the first place”.[20]  His Honour then said:[21]

“HIS HONOUR:  While I accept that the Bail Act refers to the strength of the evidence, it's often recognised that it is difficult, on an occasion such as this, to have any certainty about the strength of the evidence. Often, it’s treated as a neutral factor. I accept that you believe very strongly that you have been wrongly charged but that is not an assessment that I can easily make on this application. When you make serious allegations of collusion between the police and the alleged victim, when you make allegations of police corruption, those are very serious matters that it is not appropriate and I am not in a position to form a judgment upon in this application.

What this application really should be addressed to is whether or not the specific exclusion is more onerous than it needs to be. And I understand the reasons why you say, in a practical sense, that is the case.”

  1. [46]
    Then, having asked for confirmation that his Honour wished the appellant to focus on those matters, the appellant addressed the onerous nature of condition 4.  In the course of that, the appellant submitted:[22]

“A lot of these things are to do with my emotional stability. Though that area is - is an important part of my life. I was there for a long time.”

  1. [47]
    When the appellant returned to the issues concerning his allegations of misconduct in laying the charge and, in particular, a letter from the Crime and Corruption Commission Qld (CCC), this exchange occurred:[23]

“HIS HONOUR:  Those really are matters that, as I said before - - -

APPLICANT:  Yes, your Honour.

HIS HONOUR:  - - - goes to your defence of the - - -

APPLICANT:  The substantive matter.

HIS HONOUR:  - - - offences you've been charged with, and I don’t think we’re going to get terribly far on today’s hearing by looking at that material in any detail. Was there anything further you wish to say?

APPLICANT:  I’ve said enough, I think, your Honour.”

  1. [48]
    The respondent’s submissions then commenced, with the ultimate submission being expressed as “that the condition being sought to be removed is not too onerous in all of the circumstances.”[24]  The oral submissions then addressed that question.

Application of the wrong provision

  1. [49]
    The appellant contended that the learned primary judge applied s 16(1) of the Bail Act when he should have applied s 19B.[25]  Reliance was placed upon what was said by this Court in Clumpoint v Director of Public Prosecutions.[26]
  2. [50]
    In my view, this ground has no merit for the following reasons.
  3. [51]
    First, though the application as filed sought relief under s 19B of the Bail Act, and the appellant’s outline referred to that section as the jurisdictional basis for relief, the issues addressed also focussed on the question whether condition 4 was too onerous in the circumstances.  In that respect, the passage cited from Clumpoint v Director of Public Prosecutions dealt with the question whether a condition was too onerous.
  4. [52]
    Secondly, the course of oral submissions by the appellant invited consideration of the risks against which condition 4 was set, and a consideration of whether the condition was too onerous in the circumstances.
  5. [53]
    Thirdly, his Honour’s reference to s 16(1) of the Bail Act was only to note that it identified the relevant risks.  They are that the accused might: (i) fail to appear and surrender into custody; (ii) commit an offence; (iii) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or (iv) interfere with witnesses or otherwise obstruct the course of justice.  Of these, his Honour identified the relevant question of risk as being whether “the likelihood of interaction between the [appellant] and the complainant or other Crown witnesses who live in that area would present an unacceptable risk that the [appellant] would endanger the safety or welfare of such a person or interfere with those witnesses”.[27]
  6. [54]
    Fourthly, those risks are the same as those in s 11(2), which deals with the imposition of conditions on the grant of bail.  The consequence is that a review of a decision under s 19B with respect to a condition of bail will invite consideration of the risks identified in s 11(2).  His Honour referred to s 16(1) as a means of identifying the relevant risk, but that did not disadvantage the appellant, nor affect the jurisdictional basis for the hearing.
  7. [55]
    In my view, his Honour did not apply the wrong provision or test.

Denial of procedural fairness – illegalities and inconsistencies

  1. [56]
    The appellant’s contention was that the learned primary judge discouraged any submissions concerning the alleged improper conduct by Police,[28] and did not deal with those issues in his Honour’s reasons.  The central points of this attack were, in summary:[29]
    1. (a)
      by discouraging the appellant from making submissions in relation to alleged illegalities and inconsistencies contained in exhibits 1–6, his Honour exhibited as having no, or little, regard for the public interest;
    2. (b)
      his Honour’s disinterest in exhibits 1–6 indicates that his Honour had no regard for any merit or truth in the allegations which the appellant had submitted to the Court;
    3. (c)
      thus, it can be shown that his Honour allowed for the allegations to be true, and by doing that, his Honour was effectively allowing and encouraging Queensland Police officers to commit perjury, conspire to commit perjury, attempt to pervert the course of justice, disguise and omit evidence prejudicial to their prosecution case, misrepresent engagement records and otherwise misrepresent the circumstances around a neighbourhood dispute, and have a person taken away at night by corrupt police to prison, and then have bail conditions imposed on that person again utilising falsified, perjured, and untrustworthy evidence, all outside the public interest;
    4. (d)
      if the public knew about the evidence his Honour was effectively suppressing, their confidence in the Queensland Police force would be considerably eroded;
    5. (e)
      if the public knew that the evidence had been kept from a proceeding when relied on by the accused person in order to remove an onerous bail condition, or any bail condition imposed by perjury and other fraud, the erosion would be yet more significant;
    6. (f)
      his Honour refused to strike out a bail condition that was formulated on the basis of the affidavit of a police officer without considering the allegations made by the appellant against that police officer, i.e. of perjury and other fraud; and
    7. (g)
      his Honour refused to strike out a bail condition formulated on witness statements that were taken by that same police officer without considering the allegations the appellant made against those witnesses, namely of conspiracy to commit perjury, of making false statements, or of attempting to pervert the course of justice.
  2. [57]
    The review of the course of the hearing below does not lend any support to this challenge.  As explained above, the material and submissions going to the allegations of police misconduct were irrelevant to the issues before the learned primary judge.  Further, there is no basis to find that his Honour discouraged submissions from the appellant in a way that denied procedural fairness.  His Honour simply pointed out that those issues were irrelevant to the issues at hand.
  3. [58]
    This ground fails.

Comment on emotional wellbeing

  1. [59]
    The appellant referred to a comment made during the hearing below, submitting: “When His Honour defined my emotional wellbeing and stability as an inconvenience, he erred in his discretion as anyone would by describing a human beings health in that way.”[30]
  2. [60]
    This challenge lacks merit.  The learned primary judge set out the ways in which  the appellant said he was inconvenienced or embarrassed by condition 4.  Those matters included being unable to visit friends within the exclusion zone, inability to shop in that zone, and embarrassment when he had to explain why.
  3. [61]
    True it is that the appellant said that it “affects [his] emotional stability, [his] emotional wellbeing”,[31] and the impact of the restrictions “are to do with [his] emotional stability”.[32]  But that was simply a summation by the appellant of his subjective view of the impact.  His Honour did not refer to them as an inconvenience, but rather that the physical restrictions of condition 4 were an inconvenience to him.  In my respectful view, that was plainly right.  There was nothing put forward to show why the appellant’s friends could not meet him outside the exclusion zone, nor why he could not do his shopping elsewhere.  Further, the appellant’s embarrassment regarding the impact of condition 4 is not a sufficient justification for revoking it.
  4. [62]
    This ground fails.

Comment on relevance

  1. [63]
    The appellant referred to a comment made during the course of the hearing below, submitting that it demonstrated error on the learned primary judge’s part:[33]

“His Honours statement "much of what you're saying seems to go to matters that are relevant to the ultimate trial of the offences which you've been charged with." was erroneous as it has no basis in Law.

Evidence infected by the hand of corruption affects both streams, the bail proceedings and the substantive matter, and infected evidence should be considered and dealt with contextually in both streams.”

  1. [64]
    In my view, the learned primary judge rightfully identified that the matters the appellant raised in support of his argument for the removal of condition 4 – namely, matters concerning corruption and fraud in the prosecution of the appellant – were irrelevant to that proceeding, and would be dealt with in the course of the substantive matter.  There is no merit in this ground.

Discretionary judgment

  1. [65]
    The decision by the learned primary judge was a discretionary one, going to an issue concerning the appropriateness of a condition of bail pending the trial of the substantive charge.
  2. [66]
    The issues involved in that decision are ones that required the primary judge to form his own subjective view or value judgment of whether the condition was too onerous in the current circumstances.
  3. [67]
    Nothing has been shown that would lead to the conclusion that error of the kind in House v The King[34] affected that decision. There is no basis for this Court to intervene.

Applications to adduce further evidence and other affidavits

  1. [68]
    Adopting the list of affidavits set out in paragraph [13] above, the contents of the affidavits can be summarised as follows:
    1. (a)
      in the Wynnum Magistrates Court: 17 September 2021; the appellant’s version of events concerning the stalking charge; submissions as to what the watchhouse video shows; allegations of police corruption; submissions about the complainant’s conduct; and complaints he made about police conduct;
    2. (b)
      in the Brisbane Magistrates Court:
      1. 10 November 2021; matters concerning a bail variation hearing on 1 November 2021; what the video footage shows of his arrest at the house, in the car on the way to the watchhouse and at the watchhouse; allegations of police corruption;
      2. 21 January 2022; matters concerning a bail variation hearing on 1 November 2021; allegations of police corruption in bringing the charge, in court proceedings and in dealing with the appellant’s complaints; arguments about the significance of a statement in the stalking proceeding; arguments as to the lack of any basis to charge the appellant; allegations of misconduct by solicitors;
      3. 25 March 2022; much the same sort of content as in the previous subparagraph; additionally, allegations of prosecutorial misconduct, and misconduct by other solicitors; further allegations of police corruption in relation to a different charge;
      4. 11 April 2022; more argumentative allegations of police corruption; allegations as to unfairness by the Magistrates Court, and denial of procedural fairness; argumentative submissions as to what emails revealed about the complainant’s conduct; allegations about the conduct of the complainant and her husband; arguments about the committal;
      5. 30 May 2022; dealings between the appellant and the CCC; more allegations of police corruption; argumentative submissions about the basis for the stalking charge, and the complainant’s acts;
    3. (c)
      in the District Court: 4 April 2022; this affidavit was filed in proceedings the appellant brought against the Queensland Police Service, No. 768/22; the proceeding was an appeal from a Magistrate’s decision; the affidavit concerns the hearing before the Magistrate, and the appellant’s efforts to get information about what occurred and how to challenge the order; arguments as to the need for further applications by the appellant in relation to material allegedly withheld by police; allegations as to police corruption and the CCC response;
    4. (d)
      in the Supreme Court:
      1. 28 June 2022; this affidavit was filed in proceedings No. 7546/22 in the Supreme Court; the respondents in that proceeding are the Magistrates Court and the Queensland Police Service; it contains argumentative submissions as to: (i) the charge laid; (ii) alleged police corruption; (iii) allegations that the arresting officer was a criminal; (iv) the contents of the video footage at the watchhouse; (v) alleged misconduct by the Magistrate hearing the committal; and (vi) complaints about other proceedings before the Magistrates Court;
      2. 23 September 2022; directed to the proceedings before the learned primary judge, and the material (USB sticks) missing from the file before the learned primary judge; allegations of fraud in that evidence was withheld from the court and the Magistrates Court; exhibited the material from the USB sticks and transcripts from previous hearings to vary the bail conditions; arguments about bias by a Magistrate, and “procedural fraud” in various courts;
      3. 12 August 2022; this is an affidavit in support of the application for the bail review before the learned primary judge; it referred to and relied upon some of the affidavits filed in the Magistrates Court (subparagraphs (b)(i)-(v) above); set out the bail history and applications; lengthy arguments going to police misconduct in laying the charge and in the court proceedings thereafter; arguments as to the involvement of the CCC; arguments as to the quality of the evidence on which the charge were based;
      4. 15 August 2022; this is an affidavit in support of the application for the bail review before the learned primary judge; it relied on the affidavit filed 12 August 2022 (subparagraph (iii) above); it exhibited an undertaking as to bail;
      5. 18 October 2022; exhibits a transcript of proceedings before a Magistrate on an application to vary the bail conditions;
      6. 24 October 2022; exhibited the committal transcript and the USB sticks containing audio and video files concerned with the basis of the stalking charge;
      7. 18 November 2022; directed to the conduct of committal proceedings against him in the Magistrates Court; complaints that a particular Magistrate has a bias against the appellant; his intention to file a complaint against that Magistrate; allegations of fraud by various persons in the court system; and assertions of a conspiracy against him;
    5. (e)
      the affidavits in support of leave to adduce further evidence, in the Supreme Court:
      1. 26 September 2022; refers to and urges receipt of the affidavit filed 23 September 2022 (subparagraph (d)(ii) above);
      2. 18 October 2022; arguments as to proceedings in the Magistrates Court which might assist the Court of Appeal “in the event that it decides to consider or explore the handling of the application to strike a bail condition by the Magistrates Court on 4 August 2022”; much the same arguments as in subparagraph (iv) below;
      3. 24 October 2022; seeks to rely on an affidavit going to “A Conspiracy to prejudice - a continuation of demonstrated Actual and apprehended bias against me, denial of procedural fairness, alleged protection of allegedly corrupt police officers, comments referring to non-existent statutes, comments referring to bizarre fictional legal principles and practices”; much the same content as in subparagraph (iv) below;
      4. 18 November 2022; seeks to rely on the affidavit of 18 October 2022; arguments as to proceedings in the Magistrates Court which might assist the Court of Appeal “in the event that it decides to consider or explore the handling of the application to strike a bail condition by the Magistrates Court on 4 August 2022”; arguments as to a conspiracy and bias against him in the Magistrates Court; repeated arguments as to “procedural fraud” and a conspiracy by police to withhold evidence; lengthy repeated arguments as to proceedings before a Magistrate headed “A Conspiracy to prejudice - a continuation of demonstrated Actual and apprehended bias against me, denial of procedural fairness, alleged protection of allegedly corrupt police officers, comments referring to non-existent statutes, comments referring to bizarre fictional legal principles and practices”; urges that this Court rely on the USB sticks.
  2. [69]
    As can be seen from that summary, the material the subject of these applications falls into the category of material irrelevant to the issues before the learned primary judge.  Further, it largely consists of argumentative submissions as to those matters.
  3. [70]
    The appellant referred repeatedly in his affidavits to certain USB sticks, submitting that they contain relevant material which was missing from the material provided by the Magistrates Court to the learned primary judge.  They contain: (i) audio recordings of two conversations between the appellant and police officers in relation to complaints by the appellant about police misconduct; and (ii) video footage created at the time his house was searched by police, in the car on the way to the watchhouse, and at the watchhouse.  I have listened to the audio recordings and watched a substantial part of the video files.  None of it is relevant to the issues before the learned primary judge or this Court.
  4. [71]
    No basis has been demonstrated basis as to why any of that material should be permitted on the appeal.
  5. [72]
    The applications should be refused.

Conclusion

  1. [73]
    All grounds of appeal have failed.  The appeal and the applications should be dismissed.
  2. [74]
    I propose the following orders:
  1. 1.The applications filed on 26 September 2022, 19 October 2022, 24 October 2022, 26 October 2022 and 18 November 2022, for leave to adduce further evidence and to rely on further affidavits, are refused.
  2. 2.Appeal dismissed.
  1. [75]
    DALTON JA:  I agree with the orders proposed by Morrison JA and with his reasons.

Footnotes

[1] Appellant’s outline below, paragraph [15]; AB 15.

[2] Appellant’s outline below, paragraphs [6]–[8]; AB 11.

[3] Applications filed 26 September 2022; 19, 24 and 26 October 2022; and 18 November 2022.

[4] AB 943 lines 24–31.

[5] AB 943 lines 33–42.

[6] AB 943 line 44 to AB 944 line 6.

[7] AB 924 lines 9–13.

[8] AB 925 lines 7–8.

[9] AB 927 lines 35–47.

[10] AB 9.

[11] AB 10.

[12] Appellant’s outline below, paragraphs [1]–[3], AB 11.

[13] Appellant’s outline below, paragraph [14], AB 15.

[14] [2005] QCA 43.  Emphasis added.

[15] Respondent’s outline below, paragraph [8], AB 19.  Emphasis added.

[16] Respondent’s outline below, paragraphs [9]–[15], AB 19–20.

[17] AB 931 lines 23–28.  Emphasis added.

[18] AB 934 lines 15–20.

[19] AB 937 lines 23–39.  Emphasis added.

[20] AB 938 lines 27–30.

[21] AB 938 lines 32–44.

[22] AB 939 lines 30–32.

[23] AB 940 lines 23–35.

[24] AB 940 lines 43–44.

[25] Appellant’s outline, paragraph [11].

[26] [2005] QCA 43 at [18].

[27] AB 943 lines 28–31.

[28] The appellant refers to them as “illegalities and inconsistencies”.

[29] Appellant’s outline, paragraphs [12]–[15].

[30] Appellant’s outline, paragraph [16].

[31] AB 934 lines 18–19.

[32] AB 939 lines 30–31.

[33] Appellant’s outline, paragraph [17].

[34] (1936) 55 CLR 499; [1936] HCA 40.

Close

Editorial Notes

  • Published Case Name:

    Karamaroudis v Director of Public Prosecutions (Qld)

  • Shortened Case Name:

    Karamaroudis v Director of Public Prosecutions

  • MNC:

    [2023] QCA 42

  • Court:

    QCA

  • Judge(s):

    Mullins P, Morrison JA, Dalton JA

  • Date:

    17 Mar 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Clumpoint v Director of Public Prosecutions [2005] QCA 43
3 citations
Jump To
Cite 1 - [2005] QCA 43
Cite 2 - [2005] QCA 43
Cite 3 - [2005] QCA 43
House v R (1936) HCA 40
2 citations
Jump To
Cite 1 - (1936) HCA 40
Cite 2 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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