Paixao v Commissioner of Police
[2025] QCA 12
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Paixao v Commissioner of Police[2025] QCA 12
- Add to List
Paixao v Commissioner of Police[2025] QCA 12
Paixao v Commissioner of Police[2025] QCA 12
SUPREME COURT OF QUEENSLAND
CITATION: | Paixao v Commissioner of Police [2025] QCA 12 |
PARTIES: | PAIXAO, Pascal (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 182 of 2022 DC No 196 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Maroochydore – [2022] QDC 193 (Cash KC DCJ) |
DELIVERED ON: | 18 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 February 2025 |
JUDGES: | Mullins P, Gotterson AJA and Henry J |
ORDER: | The application for leave to appeal is refused with costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was found guilty after trial in the Magistrates Court of public nuisance contrary to s 6(1) of the Summary Offences Act 2005 (Qld) – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) on the grounds the evidence was not sufficient to establish his guilt beyond reasonable doubt, he was denied procedural fairness and there was apprehended bias in the respect of the Magistrate – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) from the District Court on the grounds that the District Court judge erred in failing to uphold any of the grounds relied on by the applicant – whether the applicant has shown that the District Court judge made an error to be corrected Summary Offences Act 2005 (Qld), s 6 |
COUNSEL: | The applicant appeared on his own behalf S J Gallagher for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]THE COURT: Mr Paixao was found guilty after a summary trial in the Magistrates Court on 4 November 2021 of one charge of commit public nuisance contrary to s 6(1) of the Summary Offences Act 2005 (Qld). The offence was committed at a bank at Coolum Beach on 28 October 2020. He appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld).
- [2]The appeal was heard on 10 May and 12 August 2022. At the conclusion of the second day of the hearing Judge Cash KC gave reasons dismissing the appeal and ordering Mr Paixao to pay the respondent’s costs of the appeal in accordance with scale amounts on or before 31 January 2023: Paixao v Commissioner of Police [2022] QDC 193 (the reasons). The grounds of appeal had been extensive but were distilled by Judge Cash for Mr Paixao at the commencement of the appeal (with which Mr Paixao agreed) and were recorded (at [4] of the reasons) as:
- the evidence was not sufficient to establish Mr Paixao’s guilt beyond reasonable doubt;
- Mr Paixao was denied procedural fairness; and
- a reasonable and informed lay observer would have thought the Magistrate was biased.
- [3]Mr Paixao applies for leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). Even though the application for leave to appeal purports to be in respect of conviction and sentence, the grounds of the application relate only to an appeal against conviction. The grounds can be expressed in these terms that Judge Cash erred in failing to find that:
- the evidence before the Magistrate was not sufficient to prove Mr Paixao’s guilt beyond reasonable doubt; and
- Mr Paixao was denied procedural fairness before the Magistrate or there was a reasonable apprehension of bias on the part of the Magistrate.
- [4]Mr Paixao appeared for himself before the Magistrate and in the District Court. He is also self-represented in this Court.
- [5]The principles that apply to an appeal to this Court from a judgment of a District Court in its appellate jurisdiction were summarised in McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]. These principles include that this Court’s discretion to grant or refuse leave to appeal is unfettered but leave to appeal will not be given lightly, as an applicant has already had the benefit of two judicial hearings. 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. If leave is granted, the appeal is an appeal in the strict sense where the Court’s duty is to determine whether error has been shown on the part of the District Court on the material before the District Court. This can be contrasted with the appellate jurisdiction exercised by the District Court on an appeal under s 222 of the Justices Act where the appeal is by way of a rehearing on the record of proceedings in the Magistrates Court. The District Court judge must conduct a real review of the evidence and make up his or her own mind about the case but paying due regard to the advantage the Magistrate had in seeing the witnesses give evidence: Forrest v Commissioner of Police [2017] QCA 132 at p5.
- [6]There were four witnesses who gave evidence before the Magistrate. They were the bank officer who served Mr Paixao, the branch manager who also spoke to Mr Paixao and called the police, and the two police officers who attended the branch after the conduct that was the subject of the charge. Mr Paixao did not give evidence.
- [7]The bank officer’s evidence included the following. He served Mr Paixao on the day of the incident at about 11.30 am when Mr Paixao did a large withdrawal. At the conclusion of the transaction, the bank officer asked Mr Paixao if he needed a receipt and he walked away. The bank officer served the next customer. After a transaction is completed, the bank officer is unable to print out anything for that transaction (and therefore could no longer provide the receipt which was a reference to the document that can be provided as verification of the transaction that had taken place). When Mr Paixao returned to the bank officer after he finished with the next customer, Mr Paixao asked him to print out a receipt. The bank officer told him that he could not do so because the transaction was completed. Mr Paixao started screaming and swearing at the bank officer. He repeated several times “Give me the fucking receipt”. He was raising his arms up and down. There were other customers waiting to be served. The bank officer felt threatened because Mr Paixao kept yelling and approaching him. (The CCTV footage recorded by the bank that was video without audio (exhibit 7) was played to the witness. The bank officer was able to identify Mr Paixao and himself in the video when the withdrawal took place. It showed the bank officer starting on the next customer’s transaction and then what happened when Mr Paixao came back to the bank officer.) The bank officer offered to print a statement showing the withdrawal and the balance of the account. He printed the statement at the printer and gave it to Mr Paixao. The branch manager then entered that part of the bank and talked to Mr Paixao.
- [8]The branch manager’s evidence included the following. The manager was on her lunch break when she heard yelling in the banking chamber. She could view the CCTV footage in the lunchroom and saw the bank officer assisting a lady and there was a gentleman standing by the printer. She went out into the chamber. Mr Paixao was ranting, red faced, and swearing in the chamber in front of other customers. The manager explained that she could not provide the receipt and asked him to leave the bank. Mr Paixao responded “I’m not leaving until you give me the effing receipt. Give me this effing receipt”. (It was not disputed at the trial as to the word that had been used by Mr Paixao when the witness said “effing”.) The manager called the police. Mr Paixao’s behaviour made the manager feel embarrassed, intimidated and scared. She could hear Mr Paixao yelling to the bank officer to “tell her … to cancel … the fucking police call”.
- [9]Officers Young and Hughes attended the branch in response to the call at about 12.25 pm. Officer Young activated his body worn camera. Mr Paixao required the whole recording which was downloaded onto a DVD (exhibit 6) to be played at the trial (even though some of the recording was inadmissible evidence). The recording included Mr Paixao’s version of events which was that he did nothing wrong and the bank had caused the problem. Officer Young obtained the CCTV footage of the incident from the bank (exhibit 7). The police officers otherwise could give very little by way of relevant evidence.
- [10]The prosecutor’s submission to the Magistrate characterised Mr Paixao’s conduct at the bank as behaving in either a disorderly way or an offensive way. Mr Paixao’s submission to the Magistrate was that there was no footage to support the evidence of any of the witnesses that said he swore at the bank. He also submitted (accurately) that whether a person behaves in an offensive way by using offensive language must be judged objectively.
Fundamental misunderstanding by Mr Paixao
- [11]When the prosecutor had produced the CCTV footage (exhibit 7) from the bank to play during the bank officer’s evidence in chief, it was on a USB. Mr Paixao objected to that course, as he did not have the CCTV footage in that form. He had been provided that CCTV footage on a DVD. The Magistrate explained that if the file of the CCTV footage that Mr Paixao was provided with was the same as the file on the USB, it did not make any difference that it had been provided to him as a DVD. Mr Paixao asserted that he had “very fast moving clips on the DVD” that was “nothing like” what was being played to the witness. It turned out that the video was photographs taken every five seconds and when the prosecutor played the footage, it could be played faster or slowed down. Mr Paixao conceded that he had the content of what was on the footage and had viewed it, but when he played it on his laptop, it did not play the same way it played in court. The Magistrate ruled that, as the evidence in the form of the video had been disclosed to Mr Paixao and he had watched it prior to the trial, the objection was overruled. It then became clear in the trial that Mr Paixao was also relying on the lack of audio on the CCTV footage as precluding it from being corroborating evidence. The Magistrate explained to Mr Paixao that the content of what he said to the bank officers was the subject of those witnesses’ oral evidence.
- [12]The refusal of Mr Paixao to accept the Magistrate’s explanation that the content of what he said to the bank officers could be given in evidence by the bank officers contributed to the loss of some patience by the Magistrate with Mr Paixao (that is evident from the transcript of the summary trial) in conjunction with Mr Paixao’s attitude towards the Magistrate for the rest of the trial.
- [13]Mr Paixao has not let go of his mistaken belief that the charge against him could not be proved by the bank officers’ evidence unless there was some corroboration. He wrongly claims that their oral evidence is hearsay. Mr Paixao’s position that the oral evidence of the bank officers was insufficient to prove the public nuisance charge against him was maintained by him before the Magistrate and Judge Cash and on the hearing of this application.
Magistrate’s decision
- [14]The Magistrate’s main findings were as follows. The bank foyer was a public place that was open for, and being used by, the public at the relevant time. The evidence of the two bank officers was credible and honest. It was clear from their evidence and the video recording of what happened that Mr Paixao’s behaviour did affect the peaceful passage or enjoyment of other customers of the bank. The question of whether a person behaves in an offensive way by the use of offensive language has to be judged objectively taking into account the surrounding circumstances. In relation to whether Mr Paixao’s behaviour was disorderly, it was relevant that the branch manager asked Mr Paixao to leave the premises due to his behaviour. It was clear from the evidence of the bank officer and the branch manager that Mr Paixao continued to swear and yell at both the manager and the bank officer, saying the words loudly in the foyer of the bank where there were other customers present. The Magistrate accepted the evidence of the bank witnesses that Mr Paixao’s words and tone of voice were aggressive and that the manager felt stressed and terrified and the bank officer also felt threatened. On all the evidence, the prosecution had proved the offence of public nuisance beyond reasonable doubt.
The reasons
- [15]Judge Cash summarised the bank officer’s evidence (at [14]-[18] of the reasons). His Honour watched the CCTV footage and described it (accurately) (at [16]) as being “in the form of still images recorded every five seconds from cameras positioned around the bank”. He considered (at [16]) that the footage was admissible but noted (at [17]) that he did not think it assisted the prosecution case. As the footage had no sound and it was not continuous video footage, his Honour noted (at [17]) it could not by itself prove that Mr Paixao was disorderly or offensive.
- [16]In summarising the evidence, Judge Cash referred (at [18] and [23]) to various stages during the summary trial when the exchanges between the Magistrate and Mr Paixao were less than edifying. The Magistrate was frustrated with Mr Paixao (for good reason in many instances) and many times Mr Paixao insulted the Magistrate who did not respond well in return.
- [17]The District Court judge observed (at [26] of the reasons) in relation to the Magistrate’s decision:
“While being interrupted by the defendant, the Magistrate explained that he accepted the evidence of the bank witnesses, which had not been challenged in any meaningful way during cross-examination. That evidence, the Magistrate concluded, established beyond reasonable doubt that the appellant had behaved in a disorderly and offensive way and interfered with the peaceful enjoyment of a public place by a member of the public. In doing so the Magistrate took care to note that the footage from the bank had limitations and could not itself be a basis for finding the appellant committed the offence. But the Magistrate noted the footage provided some support for the testimony of the bank witnesses.” (footnote omitted)
- [18]On the question of apprehended bias, Judge Cash applied the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 and concluded (at [33] of the reasons) that, even though the Magistrate was robust in exchanges with Mr Paixao that was driven by Mr Paixao’s own conduct at the hearing, his Honour was “unpersuaded a fair-minded lay observer might reasonably have thought the Magistrate would not decide the case according to its legal and factual merits”.
- [19]On the issue of procedural fairness, even though Judge Cash made observations (at [10] of the reasons) about how a self-represented litigant for whom English was not his first language conducting his own summary trial could have been better informed about the trial process and (at [38]) that some aspects of the conduct of the hearing “fell short of what would be ideal”. His Honour noted (at [39]) that the requirement of procedural fairness does not give a defendant a right to waste a court’s time or pursue irrelevant matters and the imperfections in the conduct of the hearing did not concern any matter that could have made a difference to the assessment of the evidence. Judge Cash found that ground was not made out.
- [20]On the sufficiency of the evidence, Judge Cash noted (at [44] of the reasons) that the critical question for the Magistrate and on the appeal was whether the evidence of the bank officers should be accepted as being truthful and reliable. His Honour also noted (at [44]) that their evidence was consistent with what each other said and what could be discerned from the CCTV footage and the suggestion by Mr Paixao to the police that he remained calm and composed was undermined by his demeanour 20 or so minutes later when talking to the police. His Honour observed (at [46]) that nothing was raised in the course of the submissions by Mr Paixao on the hearing of the appeal to cast doubt on the witnesses’ description of his conduct. Judge Cash therefore concluded (at [47]) that Mr Paixao behaved in the manner described by the witnesses so as to constitute the offence of public nuisance in the circumstances.
Has Mr Paixao shown error in the District Court decision?
- [21]The reasons show that Judge Cash’s review of the evidence in, and the conduct of, the summary trial was careful and thorough.
- [22]Mr Paixao has repeated the arguments on the application in this Court that he made before Judge Cash. His primary argument is that he should not have been convicted as there was no credible evidence in the CCTV footage to substantiate the claims made by the bank officers. As Judge Cash explained in his reasons (at [44]), there was sufficient evidence to find that Mr Paixao committed the offence from the evidence of the bank officers which was credible and reliable. There did not need to be corroboration by a video and audio recording of the oral evidence of the bank officers before the offence of public nuisance could be proved beyond reasonable doubt. Mr Paixao cannot succeed in showing error by Judge Cash in rejecting Mr Paixao’s submissions that there was no substantiation of the oral evidence of the bank officers and that the evidence of the bank officers did not prove the charge beyond reasonable doubt.
- [23]Mr Paixao’s ground for his application for leave to appeal based on his allegations he was denied procedural fairness or there was a reasonable apprehension of bias on the part of the Magistrate is connected with his fundamental misunderstanding of the nature of evidence that was sufficient to prove the charge. The deterioration in the exchanges between the Magistrate and Mr Paixao was noticeable after Mr Paixao refused to accept the Magistrate’s explanation that the content of what he said to the bank officers was dealt with by their oral evidence.
- [24]Mr Paixao emphasised in his submissions to this Court that he was cut off in his cross-examination of witnesses. There were instances when the Magistrate interjected during Mr Paixao’s cross-examination. He submitted the Magistrate was an obstacle to Mr Paixao’s conducting his own defence rather than giving him guidance in what was required of him in a trial.
- [25]A more objective context to Mr Paixao’s complaints can be shown by reference to Mr Paixao’s cross-examination of the bank officer. When Mr Paixao was endeavouring to cross-examine this witness on his police statement, the Magistrate explained to him the ways he could go about doing it. When Mr Paixao’s cross-examination of the bank officer stalled on aspects of the bank officer’s evidence of what occurred before Mr Paixao’s conduct that was the focus of the charge, the Magistrate did tell Mr Paixao repeatedly to move along with his cross-examination. That was for the purpose of getting Mr Paixao to cross-examine the bank officer on the critical aspects of his evidence. The Magistrate explained to Mr Paixao that he had not asked the witness about the threatening behaviour that was alleged against Mr Paixao that was the subject of the charge. The Magistrate explained his concern to Mr Paixao that he was “focusing on … matters that are not germane to the real dispute between you and the police”. The Magistrate then stated that if Mr Paixao did not focus on those issues, he would have to excuse the witness. Mr Paixao tendered the witness’ police statement. After further cross-examination, the Magistrate became firmer in his endeavours to have Mr Paixao focus the cross-examination on the key issues. Eventually the Magistrate put the questions to the witness that related to the key issues and therefore asked the questions he had endeavoured to have Mr Paixao ask. Mr Paixao then continued with a few more questions before the witness was excused.
- [26]The perusal of the transcript of the hearing before the Magistrate confirms the conclusion reached by Judge Cash (at [39] of the reasons) that Mr Paixao was not denied an opportunity to be fairly heard in answer to the allegation, when his complaints about the conduct of the hearing are considered in the context of all that occurred in the hearing.
- [27]Judicial officers have an obligation to conduct a trial fairly but they also must be mindful of the limited resources in the justice system. Trials must therefore be conducted both fairly and efficiently. When a fair minded lay observer understood the relatively confined issues involved in the proof of the offence of public nuisance in the circumstances, the shortcomings identified by Judge Cash in the Magistrate’s conduct of the trial (when the Magistrate at the same time endeavoured to have Mr Paixao focus on those issues) would not result in a reasonable apprehension that the Magistrate might not bring an impartial mind to the resolution of those issues that were for the Magistrate to decide on the basis of the evidence in the summary trial. Mr Paixao has not shown there was any error in Judge Cash’s conclusions on denial of procedural fairness and reasonable apprehension of bias.
Order
- [28]The respondent sought an order for costs in the respondent’s outline of submissions. As Mr Paixao has not succeeded on his application to this Court on the same arguments that did not succeed in the District Court, there is no reason not to order costs against him. The application for leave to appeal is refused with costs.