Knight v Queensland Police Service
[2013] QDC 146
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- Unreported Judgment
- Knight v Queensland Police Service[2013] QDC 146
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Knight v Queensland Police Service[2013] QDC 146
Knight v Queensland Police Service[2013] QDC 146
DISTRICT COURT OF QUEENSLAND
CITATION: | Knight v Queensland Police Service [2013] QDC 146 |
PARTIES: | MARK JAMES KNIGHT (Appellant) and QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | D31/2013 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Rockhampton |
DELIVERED ON: | 3 July 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 June 2013 |
JUDGE: | Smith DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – Self-represented defendant – whether advice by the Magistrate was sufficient Evidence Act 1977 (Q) s 130 Justices Act 1886 (Q) ss 222, 224 MacPherson v R (1981) 147 CLR 512 |
COUNSEL: | M. Knight self-represented J. Phillips for the Respondent |
SOLICITORS: | Appellant - self-represented Respondent - Director of Public Prosecutions (Qld) |
- [1]On 21 June 2013 the appeal by the Appellant was allowed and the matter was remitted to the Magistrates Court at Mackay to be tried before a different Magistrate.
- [2]The Respondent supported the appeal by the Appellant. These are my reasons for agreeing the appeal should be allowed.
- [3]This is an appeal by the Appellant pursuant to s 222 of the Justices Act 1886 (Q) (“the Act”).
- [4]The Appellant was convicted in the Magistrates Court of two counts of fraud.
- [5]The Appellant alleges that a miscarriage of justice occurred as he was unrepresented at his trial and further the convictions are unsafe and unsatisfactory.
- [6]An appeal pursuant to s 222 of the Act is by way of re-hearing. In Stevenson v Yasso [2006] QCA 40 the President noted at [36] that this court is required to make its own determination of the issues on the evidence giving due deference and attaching a good deal of weight to the Magistrate’s view.
- [7]Section 225 of the Act sets out the powers of a Judge on the hearing of the appeal. Section 225(2) permits the court to remit the matter to the Magistrates Court with any directions as to the future conduct of the proceedings.
- [8]As noted earlier the Respondent in this matter has conceded the appeal should be allowed.
- [9]The basis of the concession is that the learned Magistrate failed to adequately advise the Appellant, a self represented litigant, as to the procedure at trial.
- [10]It seems clear on the material that prior to commencement of the trial on 26 March 2013, the Appellant’s solicitors withdrew because of lack of funding. The Appellant did not want to proceed to trial in the absence of being represented but the matter proceeded.
- [11]There is clear authority as to how a self represented person should be advised by a court.
- [12]It is the duty of a Magistrate or trial judge to ensure a trial is conducted fairly and according to law. In MacPherson v R (1981) 147 CLR 512 it was noted that fulfilling this duty will require a judge to give advice to the unrepresented defendant. The test formulated is that “the judge must give an unrepresented accused such information as is necessary to enable him [or her] to have a fair trial.”
- [13]Turning then to the hearing, the first matter of concern is that there were two charges. The first charge alleged fraud on 23 June 2012 on the complainant, Blair Davis, and the second alleged fraud on 6 July 2012 on the complainant Dean Mathieson.
- [14]The Bench did not advise the Appellant as to his rights to object to the charges being heard together. In my view, such advice should have been given.
- [15]Further, the trial proceeded without any advice being given to the defendant as to the following:
- (a)Trial procedure;
- (b)What he should needed to raise in cross-examination (i.e. the requirements in Browne v Dunn (1893) 6 R 67 (HL);
- (c)As to the elements of the offences;
- (d)Of his rights on whether he should give and call evidence;
- (e)Of his rights of applying for an adjournment to obtain a witness, Michael Harris.
- [16]In my view, the failure of the learned Magistrate to give advice referred to above was an error in the trial such that a re-trial should be ordered.
- [17]I also note that the Appellant complained that despite telling the police he did not wish to be interviewed the police continued to ask questions. Whilst the Magistrate considered the issue of voluntariness the Appellant was not advised of his right to appeal to the exercise of the court’s discretion to exclude evidence which has been unfairly obtained (see s 130 Evidence Act 1997 (Q)).
- [18]A further matter which bears mentioning is that the defendant was cross-examined in his evidence about his failure to tell the police of the existence of Michael Harris and of his failure to call Michael Harris as a witness. Indeed the Magistrate relied on these two matters in reaching his decision to convict the appellant (I-6-7 of the decision).
- [19]In Petty & Maiden v R (1991) 173 CLR 95 the High Court held that there should be no basis for inferring a consciousness of guilt because of previous silence about a defence raised at trial. In this case the defendant, according to his evidence, made it clear to the police that he did not want to provide any version to them.
- [20]On the issue of the failure to call a witness, in Dyers v R (2002) 210 CLR 285 it was held that as a general rule a trial Judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare.
- [21]Close consideration will need to be given at the retrial on these two issues.
- [22]For the above reasons on 21 June 2013 I allowed the appeal against conviction and ordered that the matter be remitted to the Mackay Magistrates Court for re-trial before a different Magistrate.
- [23]With the consent of both parties no order as to costs was made.