SFN v Commissioner of Police[2017] QDC 216

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted on 24 May 2017 of contravention of a domestic violence order under s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld).  The offence was said to be committed on 27 January 2017.  He was sentenced to 6 months imprisonment suspended after serving 3 months with an operational period of 3 years.  He was released on bail pending this appeal on 8 June 2017.

2. [2]
   The grounds of appeal are as follows:

3. [3]
   The appellant has also appealed against his sentence on the basis that it was manifestly excessive.

4. [4]
   At the hearing of this matter the appellant who was self-represented was spoken to by the learned magistrate at the beginning of the trial in these terms:

“The prosecution will call their witnesses who will evidence from the witness box, answering questions from the prosecutor.  Once each witness has given their evidence-in-chief you’ll have the opportunity to ask questions in cross-examination but the questions have to be relevant to the elements of the offence.  You are not entitled to ask questions about anything you feel like.  You understand that?

  Once that is finished with all the witnesses then you’ll be asked at that stage whether you wish to give or call evidence yourself.  It will be entirely up to you whether you do.  So you understand that process?” 

5. [5]
   The defendant indicated “Yes”.

6. [6]
   It is immediately apparent that the advice given to the appellant was incorrect. The questions that the appellant was entitled to ask in cross-examination were not, of course, only questions that were relevant to the elements of the offence. The case for the appellant was that the complainant was being untruthful and so questions as to her credit were extremely relevant and in fact any evidence in relation to her credit was relevant to the magistrate’s assessment of her credit. Further, it was not explained to the appellant that he had an obligation to put his case in cross-examination or that he was entitled to object to questions being asked by the prosecutor.

7. [7]
   In the case of Archer v Neuendorf [2014] QDC 91 at [68]-[72], Judge Smith DCJA helpfully outlined some minimum requirements in relation to the advice that should be given to a self-represented person in a court.  He stated:

“There is clear authority as to how a self-represented person should be advised by a court.

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 and advice as is necessary to ensure that he [or she] has a fair trial.’ (see pp 524.8 and 534.5).

Further in R v Cox (1996) 66 SASR 152 it was held it was the duty of a court to assist an unrepresented person of the need to call evidence in support of submissions advanced and further that the absence of sworn evidence might be fatal to the submissions.

In my view, at a minimum, advice should be given to the defendant as to the following:

1. (a)
   Trial procedure;

2. (b)
   What he should needed to raise in cross-examination (i.e. the requirements in Browne v Dunn (1893) 6 R 67 (HL) (see e.g. R v Zorad (1990) 19 NSWLR 91);

3. (c)
   As to the elements of the offences;

4. (d)
   Of his rights on whether he should give and call evidence;

5. (e)
   Of his right to object to evidence;

6. (f)
   That the absence of sworn evidence by the defence might be fatal to his or her submissions.”

8. [8]
   I have already indicated that the learned magistrate did not advise the appellant of the need to put his case to the prosecution witnesses. He did not advise him that he could object to evidence. He did not advise him that he could cross-examine a witness as to credit. These were all flaws that by themselves would lead to a court ordering a new trial. Compounded by this was the magistrate’s indication that the police should not call evidence from any witness other than the complainant.

9. [9]
   The appellant had been given a brief of evidence and on that brief of evidence were statements from two police officers who attended the scene upon the complainant calling. Those police officers were able to give evidence of the complainant’s injuries as observed on the night, her demeanour and, if they existed, any inconsistencies in her conversations with them and her evidence in court.

10. [10]
    After the complainant had given her evidence, the prosecutor indicated that she would call Brent Crooks who was one of the police officers. The following exchange took place at T-9, L10:

“Ms Donoghue:   Your Honour, the prosecution wish to call the next witness, Brent Crooks. 

Bench:  Who is he?

Ms Donoghue:   The officer that attended on the night, you Honour. 

Bench:   What relevant evidence is he going to give? 

Ms Donoghue:   Your Honour, to say that he attended and he observed the injuries to the aggrieved. 

Bench:   Is that going to take us anywhere? 

Ms Donoghue:   No, your Honour. 

Bench:   Alright. 

Ms Donoghue That’s the case from the prosecution then, your Honour.” 

11. [11]
    At no stage was the appellant asked if he wished to cross-examine that witness or in fact the other police officer who had also supplied a statement. The extent of the injuries and how they occurred were very much in dispute and in fact the photograph tendered of the injuries raises questions in relation to the accuracy of the image depicted in the photo which was taken by the complainant herself the following morning. In any event, the magistrate, having heard the cross-examination and realising that the appellant was disputing the truth of the complainant’s evidence, should not have interfered with the prosecution calling further witnesses.

12. [12]
    Finally, it was suggested that the reasons that the magistrate gave for convicting the appellant are inadequate. The magistrate gave very short reasons where he said he accepted the evidence of the complainant, particularly having regard to the photos that were tendered and he rejected the evidence of the appellant. In Forrest v Commissioner of Police [2017] QCA 132 at 7, Sofronoff P noted: 

“It is fundamental that a judicial decision must be a reasoned decision and not an arbitrary one.  If the process of reasoning is not exposed in written reasons then a reasoned decision cannot be distinguished from an arbitrary one.  Nor is it possible for an appellate court to do its duty of reviewing such a decision if a judge gives no explanation for his or her reasoning.” 

13. [13]
    In this case the magistrate did not give reasons for accepting the complainant’s evidence over the defendant’s evidence other than a reference to the photographs of the complainant and the appellant which is, in my view, of questionable weight given the nature of the shading in the photograph and the fact that it was taken by the complainant herself the next morning when she said she’d applied makeup to go down for breakfast. The magistrate had a duty given the serious nature of the allegations to give full reasons, with reference to the evidence, why he accepted the evidence of the complainant over the sworn testimony of the appellant.

14. [14]
    The Crown has rightly conceded that this appeal should be allowed. The magistrate has made a number of fundamental errors that mean that the trial process miscarried. The appeal is allowed and it is remitted back to the Magistrates Court for rehearing. The hearing should take place before a magistrate other than the magistrate that heard the matter originally.