Harvey v Commissioner of Police
[2017] QDC 150
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- Unreported Judgment
- Harvey v Commissioner of Police[2017] QDC 150
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Harvey v Commissioner of Police[2017] QDC 150
Harvey v Commissioner of Police[2017] QDC 150
DISTRICT COURT OF QUEENSLAND
CITATION: | Harvey v Commissioner of Police [2017] QDC 150 |
PARTIES: | BARRY BERNARD HARVEY (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 334 of 2017 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 9 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 June 2017 |
JUDGE: | Kefford DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – appeal against conviction – where the appellant was convicted of breach of bail conditions that prevented him from contacting police other than in an emergency - whether the learned magistrate erred in finding there was no emergency Criminal Code (Qld) s 24, s 25 Justices Act 1886 (Qld) s 222 Berbic v Steger [2005] QDC 294, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied R v GV [2006] QCA 394, applied Teelow v Commissioner of Police [2009] 2 Qd R 489, [2009] QCA 84, applied |
COUNSEL: | The appellant was self-represented T Corsbie for the Respondent |
SOLICITORS: | The appellant was self-represented Office of the Director of Public Prosecutions for the Respondent |
- [1]The appellant was convicted of two charges of breach of bail under section 29(1) of the Bail Act 1980 (Qld) on each of 18 May 2016 and 23 May 2016 following a hearing before the learned Magistrate in the Magistrates Court at Brisbane on 20 December 2016. The Magistrate delivered judgment on 22 December 2016. The appellant was acquitted of a charge of public nuisance that was considered at the same hearing.
- [2]The appellant was sentenced on 31 January 2017. A conviction was recorded and the appellant was released on a good behaviour bond for six months. The recognisance for the bond was $500.
- [3]This is an appeal under s 222 of the Justices Act 1886 against the conviction on the two charges of breach of bail.
- [4]The appellant seeks to challenge the convictions.
Nature of Appeal
- [5]The appeal is by way of rehearing on the evidence given before the Magistrates Court. It involves a review of the record of proceedings below, rather than a completely fresh hearing (subject to the grant of leave, on special grounds, to adduce fresh, additional or substituted evidence): s 223 of the Justices Act 1886.
- [6]This court is required to conduct a real review of the evidence, which task involves weighing conflicting evidence and drawing inferences and conclusions. However, in doing so, the court must bear in mind the advantage the Magistrate had in seeing and hearing any witnesses: Fox v Percy (2003) 214 CLR 118, 126-7 [25]; [2003] HCA 22.
- [7]To succeed on an appeal, the appellant needs to show some legal, factual or discretionary error: Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, [4] and [5].
Grounds of appeal
- [8]The grounds of appeal are:
- (a)the learned Magistrate made an error of law when she did not give the appellant the benefit of conflicting evidence between the appellant and Sergeant David Dale;
- (b)the learned Magistrate made an error of fact and law when she did not consider the inconsistencies in firearms information provided by the appellant’s son’s mother and her parents and that there was an emergent material condition or even simply a condition in which 000 could be called;
- (c)the learned Magistrate made an error of fact and law when she did not consider the evidence that Justice Tree of the Family Court acknowledged that the appellant accepted the explanations at the Family Court hearing in August 2016 so as to facilitate the best interest of his child;
- (d)the learned Magistrate made an error of fact and law when she did not accept that even though the appellant had no objective evidence that the guns were unsecured and used at a residential property, it was relevant that Sergeant Dale’s admitted that the appellant had been given no objective evidence that the firearms were now safe or secure and that consequently there was an emergent material condition or even simply a condition in which 000 could be called; and
- (e)the learned Magistrate made an error of fact and law in that she did not consider the appellant’s concern that, because the grandparents were not prosecuted for firearms and perjury offences known to police to have been committed, the grandparents would reoffend in the same way putting the appellant’s son at risk and that because of the perjury to obtain the domestic violence order, the appellant’s son is suffering coercive domestic violence in not seeing his father and that consequently there was an emergent material condition or even simply a condition in which 000 could be called.
Relevant evidence at the hearing before the Magistrate
- [9]As is recorded in Exhibit 7, on 16 February 2016 the appellant entered into an undertaking as to bail that contained condition (d) as follows:
“The defendant shall have no contact by email, facsimile, telephone, social media or other means with any of the following departments / organisations / persons / positions:
- the Premier of Queensland
- any member of Parliament or Ministerial position, be they Federal, State or local sitting members
- the Queensland Police Service except in an emergency
- any Department of the Queensland Police Service, including Weapons Licensing Branch, Policelink and Prosecutions Office
- any employee of the Queensland Police Service
- any Magistrate or court house except in relation to any current matters before the courts”
- [10]The appellant called ‘000’ on 18 May 2016 and 23 May 2016. The calls were recorded and copies of the recordings were tendered as exhibits 2 and 3.
- [11]In those calls, the appellant raised an issue about the storage of firearms at the residence of the parents of his ex-wife. The appellant was concerned for the safety of his son who, for a period of time, had resided with the mother at that residence with his ex-wife’s parents.
- [12]At the hearing on 20 December 2016, Sergeant Dale testified that the appellant had been agitating this issue since July 2014. The Sergeant’s evidence on this is consistent with the appellant’s summary of relevant facts in his outline in this appeal.
- [13]The recording of the phone call in Exhibits 2 reveals that during the phone call to “000” on 18 May 2016 the appellant was seeking to inform the operator that he had phoned the national hotline to report unsecured firearms because the police would not address the issue and if it remained unaddressed, he would have his criminal associates attend the premises to sort the issue out and to get the guns and protect his son. The appellant would not tell the operator where the guns were as he said the police already knew.
- [14]The recording of the phone call in Exhibit 3 reveals that during the phone call to “000” on 23 May 2016, the appellant was asked repeatedly if there was any new information and he confirmed that there was no new information but his issue was that there was no confirmation to him that the ongoing risk to his son had been addressed.
- [15]Sergeant Dale was called by the appellant. He gave evidence that he had conservations with the appellant prior to the “000” calls on many occasions to inform him that his allegations about unsecured firearms had been investigated over 10 times and that he was satisfied that the firearms were no longer present, having been sold, and that the child was not in danger: Hearing Transcript, 20 December 2016, page 1-44, lines 13 – 24 and page 1-67, lines 1 - 33.
- [16]At the prompting of the appellant, a recording was tendered of a conversation between the appellant and Sergeant Dale on 19 January 2016, which conversation occurred prior to the calls the subject of the charges. In this conversation, the officer calmly talked the appellant through the police position that the offences regarding firearms were investigated and the appellant’s son was in no risk of harm: Exhibit 8. During the conversation, Sergeant Dale listened to the appellant’s concerns regarding inconsistencies and the circumstances in the Family Court and reiterated that matters had been investigated by police time and again.
- [17]During his evidence, the appellant admitted that the prompt for the “000” calls was the fact that he had seen a news report about an unrelated firearms offence and it had prompted him to wonder why his son’s grandparents were not being charged for firearm offences and he had not yet seen information that demonstrated that his son was safe: Hearing Transcript, 20 December 2016, page 1-78, lines 10 - 30. He also admitted that he has a condition known as obsessive compulsive disorder that causes him to dwell on issues: Hearing Transcript, 20 December 2016, page 1-80, lines 20 - 45.
Relevant legal principles
- [18]This appeal turns on whether the contact with policelink occurred in an “emergency”, either for the purposes of the exception within the undertaking or under s 25 of the Criminal Code; or an honest and reasonable, but mistaken belief that there was an emergency for the purpose of s 24 of the Criminal Code.
- [19]In relation to the excuse of extraordinary emergency, s 25 of the Criminal Code provides:
“25 Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
- [20]In relation to the excuse of mistake of fact, s 24 of the Criminal Code provides:
“24 Mistake of fact
- (1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
- (2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
- [21]In R v GV [2006] QCA 394, the Queensland Court of Appeal, when considering the defences in s 24 and s 25 of the Criminal Code, noted as follows:
“[27] Sir Samuel Griffith revealed his understanding of s 25 in a case decided by him as Chief Justice of Queensland with reagard to a collision at sea. In Webster & Co v The AUSN Co Ltd, his Honour said at 216:
“It is sufficient in such a case of extreme danger if the person in charge of [the ship] exercises such judgment as a man of ordinary skill and fortitude might reasonably be expected to exercise under the circumstances.”
He compared this position to ss 24 and 25 of the Criminal Code which he referred to as “rules of common sense as much as rules of law”.
[28] The defences available under s 24 and s 25 of the Criminal Code may work in combination so that the existence of an emergency can either be actual or the product of an honest and reasonable, but mistaken, belief.”
- [22]In Berbic v Steger [2005] QDC 294 at [14], this Court cited Webster and Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207 and said:
Section 25 raises two issues, whether there is relevantly an extraordinary emergency, and, if so, whether an ordinary person possessing ordinary power of self control could not reasonably be expected to act other than as the defendant did act. As to the first limb, it is recognised that the emergency could be factual or the product of an honest and reasonable but mistaken belief. There is not much authority on just how serious an extraordinary emergency must be. Presumably, it must be more than an ordinary emergency, and something which one would not expect to occur very often.
Findings of the learned magistrate
- [23]After recounting matters of evidence referred to above, the learned Magistrate considered the question of whether there was an emergency.
- [24]In considering whether there was an “emergency”, the learned Magistrate had reference to the definition in the Australian Concise Oxford Dictionary, being “a sudden state of danger” and, in the Webster’s Imperial Dictionary as “a sudden or unexpected occurrence or combination of occurrences demanding proper attention, urgent necessity”: Decision, 22 December 2016, page 5.
- [25]The learned Magistrate then found, in the Decision, 22 December 2016, pages 5 - 6:
- (a)that the calls made on 18 May 2016 and 23 May 2016 were about matters that the appellant had raised on many occasions and had been investigated on many occasions since 2014 up until that day;
- (b)the appellant was aware of this and was aware that the police had formed the opinions that the firearms that were owned by his ex-wife’s parents were lawfully owned and, when they were in possession of the grandparents, they were lawfully stored;
- (c)that the police had formed that opinion had been communicated to the appellant on at least one occasion and on many occasions they had also communicated that the appellant’s son was not considered to be in any danger;
- (d)affidavits before the learned Magistrate, including by the appellant, indicated that all weapons had been disposed of and the appellant’s ex-wife had agreed not to live at any place where guns were stored;
- (e)in relation to the conversation of 18 May 2016:
- (i)there was nothing in the conversation of 18 May 2016 to support any inference that there was an emergency;
- (ii)there was no sudden state of danger for any person nor was there a sudden or unexpected occurrence or combination of occurrences that demanded prompt action by the Queensland Police Service;
- (iii)there was nothing new in anything the appellant had to say on that day;
- (iv)the communication was of the type that the bail condition was intended to stop;
- (f)in relation to the conversation of 23 May 2016:
- (i)the call involved assertions by the appellant about information that he had been asserting over the previous two years in terms of the safety of his son and the risk from unsecured guns;
- (ii)the appellant has been advised several times prior to this call that the police had investigated the matter;
- (iii)the appellant knew, before making the call, that the police were satisfied in relation to the lawful storage of the firearms and that the police had formed the opinion that his son was not in danger;
- (g)the phone calls were made at a time when there was no emergency.
- [26]The learned Magistrate then turned to consider the excuses that were raised under s 24 and s 25 of the Criminal Code: Decision, 22 December 2016, pages 6 - 9. In this context, the learned Magistrate referred to the decision of His Honour Judge McGill in Steger v Berbic referred to above.
- [27]The learned Magistrate then found that there was no extraordinary emergency. Further, the Magistrate stated that she did not consider that it would have been reasonable to expect an ordinary person in the appellant’s position to act as the appellant did.
- [28]With respect to the excuse of mistake of fact, having quoted s 24 of the Criminal Code, the learned magistrate stated, at page 9 of the decision on 22 December 2016:
“The overwhelming evidence that supports Mr Harvey’s concerns caused me to doubt whether, even on the balance of probabilities, Mr Harvey’s belief was honest. However, if, for some peculiar reason, it could be said that Mr Harvey honestly believed his son was in danger, his act of ringing the police must be because he is mistaken about a state of things not only honestly but also reasonably. I consider, even if Mr Harvey’s belief was honest, that his son was danger (sic) and the firearms were not secure, his belief was wholly unreasonable, in fact, in beggars belief.”
Was there any relevant error?
- [29]In my view, there is no relevant error in the findings of the Magistrate. It was open for the Magistrate to find that there was no sudden situation amounting to an emergency. The concerns raised by the appellant were historical and had been investigated by the police on multiple occasions. The appellant had been advised of the result of the investigations prior to making the phone calls. On that basis it was also open to the Magistrate to find, as she did, that any mistake by the appellant as to there being an emergency at the time of the offences could not be reasonably held.
- [30]In terms of the Magistrate’s decisions to accept the evidence of Sergeant Dale over that of the appellant, the decision was one open to the Magistrate. There is no principle that requires the tribunal of fact to decide contradictory evidence in favour of the accused. The Magistrate was permitted to take account of the credibility and corroboration of any witness’ account in choosing whether to accept any version of events. She was well placed to assess the witnesses and her decision recorded her views in that regard. The Magistrate was frank about her impression of Sergeant Dale’s demeanour in the witness box as someone who was exasperated or frustrated. However, the Magistrate also observed that Sergeant Dale’s demeanour in the phone call with the appellant on 19 January 2016, in which the appellant was told that the concerns had been investigated and that his son was not considered to be in danger, was appropriate, respectful and compassionate.
- [31]With respect to the alleged error of fact and law by the Magistrate in failing to consider the evidence that Justice Tree of the Family Court acknowledged that the appellant accepted the explanations at the Family Court hearing in August 2016 so as to facilitate the best interest of his child, there is no material error. The evidence, even if accepted, was not such as to detract from the learned Magistrates findings.
Conclusion and order
- [32]For the reasons expressed above, it was open to the Magistrate to make the findings that she did. Those findings support the conviction.
- [33]Accordingly, I order that the appeal is dismissed.