Harvey v Commissioner of Police
[2017] QDC 153
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- Harvey v Commissioner of Police[2017] QDC 153
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Harvey v Commissioner of Police[2017] QDC 153
Harvey v Commissioner of Police[2017] QDC 153
DISTRICT COURT OF QUEENSLAND
CITATION: | Harvey v Commissioner of Police [2017] QDC 153 |
PARTIES: | BARRY BERNARD HARVEY (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 295 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 application for leave to appeal out of time is refused. |
CATCHWORDS: | CRIMINAL LAW – application to appeal out of time - appeal against conviction – where the appellant was convicted of contravening a domestic violence order - whether the extension was in the interests of justice - whether the learned magistrate erred in finding there was no agreed conference under the domestic violence order – whether the learned magistrate erred in finding section 22 of the Criminal Code did not apply Criminal Code (Qld) s 22, s 24 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 R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied. Spencer v Hutson [2007] QCA 178, 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 contravening a domestic violence order on 17 July 2015 following a hearing before the learned Magistrate in the Magistrates Court at Brisbane on 17 July 2015. He was sentenced to 40 hours community service.
- [2]The matter proceeded to hearing over 1 August 2016, 12 September 2016 and 28 September 2016 and the appellant was convicted on 1 November 2016.
- [3]The appellant seeks to challenge the convictions.
Nature of Appeal
- [4]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.
- [5]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.
- [6]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] – [5].
Grounds of appeal
- [7]The grounds of appeal are that the learned Magistrate ignored the binding authority of He Kaw Teh v Queen (1985) 157 CLR 523 as follows:
- (a)the learned Magistrate did not provide the appellant with the benefit of the defence that an agreed conference is a court appearance asked for by the aggrieved and agreed to by the appellant;
- (b)the learned Magistrate did not provide the appellant with the benefit of the defence of mistake if what is described above is not an agreed conference; and
- (c)the learned Magistrate did not provide the appellant with the benefit of the defence of s 22 of the Criminal Code because an agreed conference is not defined in either the enabling legislation or the order.
Relevant evidence at the hearing before the Magistrate
- [8]The appellant was present in court on 14 July 2015 when a Temporary Variation of a Protection Order was made: Exhibit 1, p 2. The aggrieved was his ex-wife, with whom he shares a son.
- [9]The order required:
- (a)in condition 1, that the appellant be of good behaviour toward the aggrieved and not commit domestic violence against the aggrieved; and
- (b)in condition 5, that:
“The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
This condition does not apply to the extent that it is necessary for the parties to attend an agreed conference, counselling, mediation session, or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court, or when having contact with a child authorised by a representative of the Department of Communities (Child Safety).”
- [10]The appellant had previously filed an application in the Queensland Civil and Administrative Tribunal against the aggrieved with respect to a debt: Transcript of Hearing, 12 September 2016, at page 1-65, lines 16 – 41 and Transcript of Hearing, 28 September 2016, at page 2-5, lines 13 – 27.
- [11]The aggrieved, in a written submission, had sought to dispense with the mediation and proceed to hearing: Transcript of Hearing, 12 September 2016, at page 1-65, lines 20 – 22. She did not want to mediate with the appellant as she did not want to be in a room with the appellant: Transcript of Hearing, 12 September 2016, at page 1-65, lines 34 – 41. The appellant did not oppose that course: Transcript of Hearing, 28 September 2016, at page 2-5, lines 1 – 8. The hearing was listed for 17 July 2015.
- [12]On 17 July 2015, the aggrieved attended the Sandgate Magistrates Court. The appellant approached her in the foyer and attempted to serve documentation. She ignored him: Transcript of Hearing, 1 August 2016, at page 1-33, line 31 – page 1-34, line 12.
- [13]The aggrieved entered a room outside the courtroom and closed the door to wait for her barrister: Transcript of Hearing, 1 August 2016, at page 1-34, line 7 – 27.
- [14]Approximately 20 minutes later her barrister arrived. She entered the room and closed the door behind herself: Transcript of Hearing, 1 August 2016, at page 1-34, line 16 – 27.
- [15]A short time later the appellant opened the door and attempted to serve a quantity of documents he held in his hand. He was told by the aggrieved’s barrister to get out in a loud voice. He attempted to place the documents on the table but retreated in the face of the aggrieved’s barristers resistance. The door was closed behind him: Transcript of Hearing, 12 September 2016, at page 1-13, line 12 – 46.
- [16]The appellant then opened the door a further time and was again told by the aggrieved’s barrister to get out in a raised voice. He did so and the door was locked behind him: Transcript of Hearing, 12 September 2016, at pages 1-13 – 1-17.
- [17]Police were called by registry staff. When police approached the appellant he told them that he was serving documents and that he was permitted to do so: Transcript of Hearing, 12 September 2016, at pages 1-48, line 11 to 1-49, line 2 and page 1-82, line 3 – 44. The appellant was placed under arrest.
- [18]Intermittent CCTV images show the appellant approaching the aggrieved in the foyer of the courthouse and the room where the aggrieved and her barrister were located: Exhibit 3.
- [19]The appellant gave evidence. He identified himself and the aggrieved in the CCTV image from the foyer: Transcript of Hearing, 28 September 2016, at page 2-9, line 4 – 46. The appellant initially claimed he did not approach her but conceded he was holding out documents (Transcript of Hearing, 12 September 2016, at page 2-9, line 34 - 35) then later claimed no memory of this incident (Transcript of Hearing, 28 September 2016, at page 2-14, line 13 - 16). He later indicated his recollection was that he attempted to serve the barrister in the foyer: Transcript of Hearing, 28 September 2016, at page 2-17, line 1 - 10. This allegation was only raised in cross-examination and was not put to the witness.
- [20]The appellant further stated that it was his intention to serve only the barrister and was unaware that the aggrieved was in the room: Transcript of Hearing, 28 September 2016, at page 2-16, line 41 – 46.
- [21]The appellant accepted that he twice attended the room and attempted to serve Court of Appeal documents: Transcript of Hearing, 28 September 2016, at page 2-5, line 40 – 46. The appellant denied any contact with the aggrieved: Transcript of Hearing, 28 September 2016, at page 2-5, line 28 – 38.
- [22]The appellant claimed that he could not afford service of the documents by attending the aggrieved’s solicitor's office (Transcript of Hearing, 28 September 2016, at page 2-15, line 45 - 46) or sending them by post (Transcript of Hearing, 28 September 2016, at page 2-10, line 43 – 46). He claimed he could not locate the Barrister's chambers: Transcript of Hearing, 28 September 2016, at pages 2-15, line 44 – 2-16 line 2.
- [23]The appellant admitted serving two other parties to the same Supreme Court action by post: Transcript of Hearing, 28 September 2016, at page 2-8, line 35 - 43
Appeal out of time
- [24]The Justices Act requires an appeal under s 222(1) to be brought within one month.
- [25]The Notice of Appeal was filed on 27 January 2017, approximately two months after his conviction on 1 November 2016.
- [26]The appellant has filed an application for an extension of time in which to appeal.
- [27]The appellant has stated in his application that he suffers from Obsessive Compulsive Disorder. No material has been placed before the court in support of that allegation.
- [28]At the hearing, the appellant also relied on the fact that his mother was dying at the time and his son had suffered abuse so he was not in a good place mentally for some time. He also referred to the closure of the courts over Christmas.
- [29]The imposition of prescribed time limits for appeals serves an important purpose of bringing finality to litigation: Spencer v Hutson [2007] QCA 178, [28]. The Court of Appeal has held that considerations relevant to the grant of leave are whether a good reason has been provided to account for the delay and whether it is in the interests of justice for the extension to be granted. That may, in some cases, involve an assessment of whether the appeal seems to be a viable one: R v Tait [1999] 2 Qd R 667; [1998] QCA 304, [5].
- [30]It was noted, in determining whether a good reason has been provided, another factor is the length of the delay; it being much easier to excuse a short than a long delay: R v Tait [1999] 2 Qd R 667; [1998] QCA 304, [5].
- [31]The delay here has been a relatively short one, but the explanation for the delay is not particularly satisfactory. Whether the appeal is viable is considered further below.
Relevant legal principles
- [32]This appeal turns on whether the contact with the aggrieved was for an agreed conference for the purposes of the exception within the temporary protection order or whether, under s 24 of the Criminal Code, there was an honest and reasonable, but mistaken belief that there was an agreed conference.
- [33]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.”
- [34]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.”
- [35]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.”
Was there an agreed conference?
- [36]The appellant initially submitted, as grounds that he had no case to answer, that the Queensland Civil and Administrative Tribunal hearing was an agreed conference and his conduct therefore fell within an exception to condition 5 of the Temporary Protection Order.
- [37]After recounting the facts referred to above, the learned Magistrate considered the question of whether there was an agreed conference.
- [38]In considering whether there was an “agreed conference”, the learned Magistrate had reference to the definition in the Australian Oxford Dictionary for “agreed”, being “discussed or negotiated and then accepted by all parties” and in the Macquarie Dictionary, which defines “agreed” as meaning “arranged by common consent”: Decision, 1 November 2016, page 1-9.
- [39]The learned Magistrate found that the aggrieved’s attendance at court on that day “could not be said to be accepted or consented to by her in circumstances where she was required to attend to face the application commenced against her by the Defendant.”
- [40]The learned Magistrate then went on to consider the meaning of “conference”. She found that the Australian Oxford Dictionary defines the word as “a formal meeting of people with a shared interest” and the Macquarie Dictionary defines it as “a meeting for consultation or discussion”: Decision, 1 November 2016, page 1-9.
- [41]The learned Magistrate found that a legal proceeding does not comply with those definitions and cannot be considered a conference: Decision, 1 November 2016, page 1-9.
- [42]The learned Magistrate then turned to consider the excuse under s 24 of the Criminal Code that had been raised by the appellant: Decision, 1 November 2016, pages 1-9 – 1-10.
- [43]The learned Magistrate found that the excuse was only available if she accepted the evidence of the appellant, which she did not. The learned Magistrate found that the appellant’s evidence changed over the course of the hearing to suit the arguments he was making. Where his evidence differed from that of the prosecution witnesses, she rejected the defendant’s evidence: Decision, 1 November 2016, pages 1-9 and 1-6.
- [44]The Magistrate found that the statement by the appellant to police that “he served some paperwork and that they were - he was allowed to do so” was insufficient to raise the defence as to the specific mistake as to the nature of an agreed conference: Decision, 1 November 2016, pages 1-10.
- [45]The learned magistrate found, at pages 1-10 – 1-11 of the decision on 1 November 2016:
“As I indicated earlier, I did not consider the defendant to be an honest and reliable witness. I consider that the defendant has misconstrued the terms of the order, provisions of legislation and principles of law in an attempt to provide some excuse of justification for his action. I do not accept his evidence that his belief was honest and reasonable. In case I am wrong about this, I have considered whether there is evidence upon which the Prosecution could negate this excuse beyond reasonable doubt. It was submitted that what the defendant did in furtherance of any supposed service of documents was not the least that could be done to serve documents and was, therefore, beyond the extent necessary.
… It is difficult to see how it was necessary to – sorry – and the extent to which the defendant went to do this to serve the aggrieved with a notice of appeal for the purposes of attending an agreed conference.
Additionally, there is evidence that the defendant entered the room – sorry – the closed room uninvited when it was occupied by the aggrieved and her counsel. It is arguable, and I accept beyond reasonable doubt, that any contact or conference with the defendant was clearly not agreed to in these circumstances. And in those – based on those findings, I find there was not – there could have been no reasonable belief as to that fact having existed. Further, that the defendant again entered the room after having been told to get out and the door closed, is capable of negating any suggestion that the mutual attendance was an agreed conference or that his actions were the minimum contact necessary to attend an agreed conference, counselling, mediation session or when having contact with the child. Any belief could not be considered to be reasonable and I find that the evidence in the Prosecution case negates the defence, pursuant to section 24 of the Criminal Code, beyond reasonable doubt.”
- [46]In my view, there is no relevant error in the findings of the Magistrate. It was open for the Magistrate to find that:
- (a)there was no agreed conference; and
- (b)there was no honest and reasonable, but mistaken, belief that there was an agreed conference.
Was section 22(3) of the Criminal Code relevant
- [47]The appellant also submits that he should not be convicted on the basis of s 22 of the Criminal Code.
- [48]Section 22 of the Criminal Code provides:
“(3) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.
- (4)In this section publish-
- (b)in relation to a statutory instrument that is not subordinate legislation – means publish in the gazette.”
- [49]The term 'gazette' is defined as the Queensland Government Gazette: Acts Interpretation Act 1954 (Qld) schedule 1.
- [50]The term 'statutory instrument' extends to a statute, such as the Domestic and Family Violence Protection Act 2012 (Qld): Statutory Instruments Act 1992 (Qld) s 7. It does not extend to a Temporary Protection Order due to such an order not being of general application.
- [51]The learned Magistrate then went on to consider the appellant’s assertions that he was allowed to serve the aggrieved and his reliance on s 22 of the Criminal Code.
- [52]The appellant was convicted of contravening s 177 of the Domestic and Family Violence Protection Act 2012 (Qld). That act was published in the Queensland Government Gazette on 24 February 2012: Vol.359, GN.51, 24/2/2012, p.404
- [53]Accordingly, as was found by the learned Magistrate, the appellant is not entitled to the protection afforded by s 22 of the Criminal Code.
Conclusion and order
- [54]For the reasons expressed above, it was open to the Magistrate to make the findings that she did. Those findings support the conviction. Given the poor prospects of success, the application for leave to appeal out of time is refused.