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ACP v Queensland Police Service (No 2)[2017] QDC 293

ACP v Queensland Police Service (No 2)[2017] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

ACP v Queensland Police Service (No 2) [2017] QDC 293

PARTIES:

ACP

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

ID 24/17

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of Justices Act 1886

ORIGINATING COURT:

Gatton Magistrates Court

DELIVERED ON:

8 December 2017

DELIVERED AT:

Ipswich

HEARING DATE:

27 October 2017 

JUDGE:

Judge Horneman-Wren SC DCJ

ORDER:

  1. Appeal allowed.
  2. Set aside the conviction and the fine imposed on the 7 March 2017.
  3. Charge dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – where appellant convicted of one charge of contravention of a temporary protection order – where appellant contends that the domestic violence order breached was uncertain in its terms – where the charge was not particularised to an adequate standard – where the use of the word “vacate” in the ouster order was ambiguous and lacked clarity in application – where the learned magistrate could not have been satisfied beyond a reasonable doubt that the appellant contravened the order – where appeal allowed

COUNSEL:

The appellant appeared in person

Mr FR Anoozer for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 7 March 2017, following a summary trial, the appellant, ACP, was convicted of one charge of having breached a temporary protection order. The offence was alleged to have been committed on 18 February 2016. Upon his conviction he was fined $300.
  1. [2]
    ACP appeals against his conviction pursuant to s 222 of the Justices Act 1886. 
  1. [3]
    For the reasons which follow, ACP’s appeal should be allowed, his conviction and the fine imposed set aside, and the charge dismissed.

The nature of the appeal

  1. [4]
    The nature of an appeal under s 222 of the Justices Act 1886, being an appeal by way of rehearing, is that the appellate powers of the court are to be exercised for correction of error.[1]The court is required to conduct a real review of the trial and the learned magistrate’s reasons.[2]In doing so, the court must give due deference to, and attach a good deal of weight to, the views of the learned magistrate;[3]but it remains for this court to draw its own conclusions on the evidence.
  1. [5]
    In Fox v Percy at [27], Gleeson CJ and Gummow and Kirby JJ observed:

“If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”

  1. [6]
    Further on, at [29] their Honours said:

“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”

The charge

  1. [7]
    The bench charge sheet set out the single charge against ACP as follows:

“On the 18th day of February 2016 at Summerholm in the Magistrates Court district of Ipswich in the state of Queensland:

  1. ACP being a respondent against whom a domestic violence order had been made contravened the order, namely the temporary violence order made on the 15th day of February 2016 in the Magistrates Court at Gatton and ACP was present in court when the order was made.”
  1. [8]
    No particulars of the charge were provided. Most relevantly, no particulars were provided of what condition of the domestic violence order it was alleged that ACP had contravened.

Domestic violence order

  1. [9]
    On 15 February 2016, Magistrate Lee sitting in the Gatton Magistrates Court, made a temporary protection order in which ACP was named as the respondent and MP was named as the aggrieved. Three children of the aggrieved, one of whom was also a child of ACP, and two relatives of the aggrieved, were persons named in the order as persons protected by it.
  1. [10]
    The temporary protection order was in these terms:

“It is ordered that:

  1. (1)
    The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. 
  1. (2)
    The respondent must be of good behaviour towards any named person in this order and not commit associated domestic violence against the named person and should the named person be a child/children of the respondent must not expose the child/children to domestic violence. 
  1. (3)
    The respondent is prohibited from going to within 50 metres of; entering; or remaining in premises where the aggrieved or any named person resides or works. 

Except for the purpose of having contact with a child/children—

As set out in writing between the parties, or—

As is permitted by an order made under the Family Law Act. 

  1. (4)
    Respondent to vacate the farm property at [address]. 
  1. (5)
    The aggrieved must allow the respondent access to the premises at [address], in the company of a police officer to recover uncontested property that the respondent owns. 

The respondent was present in court when this order was made.” 

Relevant legislative provisions

  1. [11]
    Section 23(2) of the Domestic Violence and Family Protection Act 2012 defines a domestic violence order to mean either a protection order or a temporary protection order. 
  1. [12]
    Section 28 prescribes the conditions of a domestic violence order. It provides:

“If a court makes a domestic violence order—

  1. (a)
    The respondent must be of good behaviour and must not commit domestic violence or associated domestic violence; and
  1. (b)
    If a child of the aggrieved, or a child who usually lives with the aggrieved, is a named person in the order, the respondent must not expose the child to domestic violence; and
  1. (c)
    The respondent must comply with any other conditions imposed by the court and stated in the order.

Note—

See part 3, division 5 (Conditions of domestic violence orders).” 

  1. [13]
    Section 56 of the DVFPA prescribes conditions which must be included in a domestic violence order.  It provides:

“(1)  A court making a domestic violence order must impose a condition that the respondent—

  1. (a)
    be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; and
  1. (b)
    if the order includes a named person who is an adult—
  1. (i)
    be of good behaviour towards the named person; and
  1. (ii)
    not commit associated domestic violence against the named person; and
  1. (c)
    if the order includes a named person who is a child—
  1. (i)
    be of good behaviour towards the child; and
  1. (ii)
    not commit associated domestic violence against the child; and
  1. (iii)
    not expose the child to domestic violence.

  (2)  If the court does not exercise its power to impose conditions under subsection (1), the court is taken to have done so.” 

  1. [14]
    Section 57 permits the imposition of other conditions. It provides:

“(1)  A court making or varying a domestic violence order may also impose any other condition that the court considers—

  1. (a)
    necessary in the circumstances; and
  1. (b)
    desirable in the interests of the aggrieved, any named person or the respondent.
  1. (2)
    The principle of paramount importance to the court must be the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” 
  1. [15]
    Section 63 provides for what is termed an “ouster condition.” It provides:

“(1)  Without limiting section 57, the court may impose a condition (an ouster condition) on the respondent that prohibits the respondent from doing all or any of the following in relation to stated premises—

  1. (a)
    remaining at the premises;
  1. (b)
    entering or attempting to enter the premises;
  1. (c)
    approaching within a stated distance of the premises. 

Notes—

If an ouster condition is imposed on a respondent who is a tenant, the aggrieved may be able to apply under the Residential Tenancies and Rooming Accommodation Act 2008, section 245 for an order to be recognised as the tenant instead of the respondent, or under the Residential Tenancies and Rooming Accommodation Act 2008, section 321 for an order terminating the tenancy.

See sections 139 (Tenancy application may be made in Magistrates Court) and 140 (Tenancy application may be removed to Magistrates Court).

  1. (2)
    To remove any doubt, it is declared that the premises that may be stated in the ouster condition include—
  1. (a)
    premises in which the respondent has a legal or equitable interest; and 
  1. (b)
    premises where the aggrieved and respondent live together or previously lived together; and
  1. (c)
    premises where the aggrieved or a named person lives, works or frequents.” 
  1. [16]
    Section 65 provides for what is termed a “return condition.” It provides:

“(1)  If the court imposes an ouster condition on a respondent, the court must consider imposing another condition (a return condition) allowing the respondent—

  1. (a)
    if the respondent is no longer at the premises stated in the ouster condition—to return to the premises to recover stated personal property; or
  1. (b)
    if the respondent is at the premises stated in the ouster condition—to remain at the premises to remove stated personal property.
  1. (2)
    However, a return condition may not allow a respondent to recover or remove personal property that is required to meet the daily needs of any person who continues to live in the premises stated in the ouster condition. 

Examples of personal property required to meet daily needs—

household furniture, kitchen appliances

  1. (3)
    If the court imposes a return condition, and does not order that the matters relating to the condition be supervised by a police officer, the court must state in the domestic violence order—
  1. (a)
    if the respondent is present in court when the order is made—
  1. (i)
    the time at which, without contravening the order, the respondent may return to the premises and then must leave the premises; or
  1. (ii)
    for how long the respondent may, without contravening the order, continue to remain at the premises; or
  1. (b)
    if the respondent is not present in court when the order is made—
  1. (i)
    the time at which, without contravening the order, the respondent may return to the premises and must leave the premises based on the time of service of the order on the respondent; or 
  1. (ii)
    for how long the respondent may, without contravening the order, remain at the premises based on the time of service of the order on the respondent.

Example of condition for paragraph (b)(i)—

The respondent may, without contravening the order, return to the premises at noon on the day after the day the order is served on the respondent by a police officer. If the respondent returns to the premises under the order, the respondent must leave the premises no later than 2p.m. on the same day.

  1. (4)
    In deciding the time mentioned in subsection (3)(a)(i) or (b)(i), the court must have regard to any expressed wishes of the aggrieved.”
  1. [17]
    Section 96(a) provides that a domestic violence order takes effect on the day it is made.
  1. [18]
    Section 177 creates the offence of contravening a domestic violence order. It provides:

“(1)  This section applies if a respondent against whom a domestic violence order has been made—

  1. (a)
    was present in court when the order was made; or
  1. (b)
    has been served with a copy of the order; or
  1. (c)
    has been told by a police officer about the existence of the order.
  1. (2)
    The respondent must not contravene the order.

Maximum penalty—

  1. (a)
    if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or
  1. (b)
    otherwise—120 penalty units or 3 years imprisonment. 
  1. (3)
    For subsection (1)(c), the respondent may be told by a police officer about the existence of an order in any way, including, for example, by telephone, email, SMS message, a social networking site or other electronic means.
  1. (4)
    However, a court may not find a respondent contravened an order merely because a police officer told the respondent about the existence of the order, unless the court is satisfied the police officer told the respondent about the condition that it is alleged the respondent contravened. 
  1. (5)
    The prosecution bears the onus of proving, beyond a reasonable doubt, that the respondent has been told by a police officer about the existence of an order, or a condition of an order.
  1. (6)
    It is not a defence in proceedings for an offence involving an interstate order that a person did not know the interstate order—
  1. (a)
    could be registered or varied in Queensland; or
  1. (b)
    was registered or varied in Queensland.
  1. (7)
    In this section—

domestic violence offence means—

  1. (a)
    a domestic violence offence within the meaning of the Criminal Code, section 1; or
  1. (b)
    an offence under this part.” 
  1. [19]
    It can be seen that from s 177(4) that whilst the offence is one of having contravened the domestic violence order, it will be the contravention of a particular condition contained in the order which will constitute the commission of the offence.[4]

The learned Magistrate’s decision

  1. [20]
    The learned Magistrate commenced her decision by referring to the “relevant clauses” of the protection order as being “clauses 4 and 5”. Her Honour then set out conditions 4 and 5 of the temporary protection order. Her Honour referred to the evidence of MP having returned to the family property on 18 February 2016, having expected the appellant to have vacated the property, and having found him loading things onto a flatbed truck. She called police. Her Honour referred to video footage recorded by the body camera worn by one of the officers who attended.
  1. [21]
    The learned Magistrate referred to evidence which had been given by the appellant that he was somewhat confused as to when he had to vacate the property. Her Honour referred to the appellant having actually asked the Magistrate on the day upon which the order was made and his having been told by Magistrate Lee “straight away”.
  1. [22]
    It will be necessary to return to how her Honour was informed in the course of the hearing before her that this had been said by Magistrate Lee, and what is to be made of it, given the significance which that statement had to her Honour’s decision.
  1. [23]
    The learned Magistrate then referred to the word “immediately” having been referred to in the hearing before her and to the appellant having taken objection to that; “immediately” not having been used but “straight away” having been used by Magistrate Lee. Her Honour then observed:

“‘Straight away’, given its natural meaning-s [sic], ‘straight away’.  Not tomorrow, not next week.  ‘Straight away’.”   

  1. [24]
    Her Honour then referred to evidence from MP that her solicitor had approached the appellant after the hearing to put a proposal that he had until the following morning and that she would take no objection to that and would not report it to police. In that regard, her Honour observed that ACP appeared to have been confused as to what was said to him.
  1. [25]
    Reference was then made to evidence that the appellant that he and his mother attended the courthouse the following day and that a female member of the court staff gave the appellant a copy of the order, which he had not been given the previous day. Her Honour recounted the effect of the appellant’s evidence concerning that staff member to be “to the effect that he notified the police and Maria’s solicitor of a date that would be acceptable or okay or, as ACP put it, she said she clearly understood that that was the meaning of it, that it would be okay for him to stay”.
  1. [26]
    Her Honour then observed:

“The only people that have the authority to vary an order made by this court is a Magistrate on the proper application.  I heard the name, Susan.  I do not know any Susan in this courthouse.  Might have been – she may have been here then.  I do not know.  That person has not been called to give any evidence at all.  The order of the court was that ACP was to leave the property straight away.  He could return to the property in the presence of police to pick up items of uncontested property that he owned.” 

  1. [27]
    The learned Magistrate then referred to the arrival of police at the property on 18 February 2016 and ACP having told them, when asked when he had actually left the property, “well, I haven’t left yet”. In respect of this, her Honour commented “and this is three days after the order was made. He seemed to think that because he had not left, he did not have to have the police at the property while he was collecting items of what he called his uncontested property”.
  1. [28]
    The learned Magistrate then went on to state:

“As I have said, it is very clear what the order is.  Yes, it does not say, ‘You must vacate by midnight on the 15th of February’ and perhaps Magistrates should start saying things like that, but when the Magistrate was asked I am told, and ACP has actually agreed and told us, that he said straight away.  And that is incontrovertible.  It means straight away.  It does not mean tomorrow, it does not mean the next day.  So by simply even staying at the property he is breaching – he breached the order. 

Well, we – I suppose I really do not have to go back and – or proceed on to whether he went to the property without the police because he never left.  The police only have to prove the case beyond a – they do have to prove their case beyond a reasonable doubt and I should not say “just” because it is a very high standard.  It has been argued and I understood and I repeated what I thought ACP’s arguments were before me today with regard to his understanding of the order. 

Having considered what is before me, the evidence given by both ACP and his mother and by the police officers, and having viewed the body worn camera again and in the absence of any other evidence from courthouse staff or otherwise, it is my view that the prosecution has proved its case beyond a reasonable doubt and I find ACP guilty of breaching the temporary order.  I should, I suppose – and I meant to include this – I note that he is sent – he said – did say I will cover here, that he did say that he had emailed Maria’s solicitor because he could not speak with her and that is fine and he had contacted the police – the lady police to tell them when he was going to get out.  It is not the way this legislation works and it is not the – it was not the intention of the order. 

The order is quite clear on its face and I am satisfied that ACP was aware that he was to get out straight away.  I know there were other arguments with regard to his mother and his elderly grandmother.  The order does not cover them.  It was he that was to leave and then it would have had to have been, I should imagine, a negotiation or discussions as to what was going to happen with them, but that is the decision of the court and I will find you guilty, ACP, of breaching that temporary order.  Okay.  So I have got to sentence you on that and then we can get on to the next one.” 

The evidence at the trial including purported evidence as to the meaning of Magistrate Lee’s order

  1. [29]
    As has already been noted, what the learned Magistrate was informed of, in the course of the proceedings before her, as to what had been said concerning Magistrate Lee’s order in the proceeding before him, was of considerable significance to her Honour’s decision. It is, therefore, necessary to recount what her Honour was told in that regard. It is also necessary to set out other aspects of the evidence.
  1. [30]
    MP had given evidence that the proceeding before Magistrate Lee “was essentially to add my parents to the orders, to add distance of where the appellant couldn’t come towards us, and that he was to vacate the property immediately”.
  1. [31]
    MP was asked by the prosecutor to read condition 4 to the court and was then asked “was anything additionally said in relation to that?”. To this, MP replied:

“At the end of the proceedings, I actually wanted to know timeframes.  So I asked my solicitor if he could please clarify, because, you know how long’s a bit of string.  So he vocalised that through to the Magistrate and – actually, no, it was – well, I actually asked my solicitor, but then as the Magistrate had said that the respondent was to vacate, Tony actually asked, himself, ‘How long do I have to vacate the farm – leave the farm?’  And the Magistrate said, ‘Immediately’.” 

  1. [32]
    It was at that point that the appellant objected, saying:

“It says straight away [indistinct] but it doesn’t say the words immediately.” 

  1. [33]
    The appellant then said “The transcript, it didn’t ---”. At which point her Honour said:

“Well, I wasn’t here.  I don’t have a copy of the transcript.  That’s fine.  Okay.” 

  1. [34]
    Her Honour then said “I’ll take note. Yes”. Although not entirely clear, that would appear to be a reference to her Honour noting what the appellant had said about “immediately” not having been said by Magistrate Lee; but “straight away” having been said.
  1. [35]
    MP was asked “So in relation to this matter of breaching what can you tell the court of the events?” MP commenced her answer by saying “Well, after that day, which was the 15th, he was meant to go by that afternoon”.  That statement by MP can only have been her interpretation of the order and perhaps of what had been said of it in court by Magistrate Lee.  It was probative of nothing as to what the order actually required. 
  1. [36]
    MP gave evidence that the appellant had mentioned that he had moved his mother and his grandmother on to the property and that “they were obviously still there”. She continued:

“…and because, you know, I had a heart, I said to my solicitor, you know, maybe – or he actually sort of suggested, maybe we could give him a bit of extra time to get out, because if she’s frail and – you know.  So in hindsight, it was a silly move, that we said that he could have until the next day to actually leave, which would have been the Wednesday afternoon, but ---.” 

  1. [37]
    MP was asked what was said. She replied:

“My solicitor, after court had finished.  So there was nothing official.  That’s why it doesn’t appear on the order, I suppose, but it was just an agreement that I thought was very reasonable.” 

  1. [38]
    She then said that it was her solicitor who had approached the appellant and that she was not present for the conversation but that her solicitor had told her later.
  1. [39]
    MP gave evidence that when she arrived at the property she “knew he shouldn’t have been there, and I was very worried about what was going on and so I called the police from my car”.
  1. [40]
    When asked what happened when the police arrived she said:

“They basically wanted to verify that there was an order in place and that he shouldn’t be there, and I said no.  I explained it.  So then they went and approached him.” 

  1. [41]
    MP did not say how she “explained it” to police.
  1. [42]
    The three police officers who attended the property on 18 February 2016 all gave evidence.
  1. [43]
    Constable Benjamin Russell George gave evidence that on their way to the property they “made some enquires with our communications as to what orders were in place at the time, and we were told over the radio that there was a current, at least, temporary order that the defendant should not be at the address”.
  1. [44]
    It was Constable George who wore the body camera which recorded the exchange with the appellant. He gave evidence of activating that equipment about 50 metres from the appellant “and we’ve gone up to the appellant, and I’ve just advised him that he was under arrest for breach of domestic violence, and then, from there, we’ve had a bit of a general conversation about what he was doing there. And then, subsequently, after that, we took him in the back of the police car, back to the station.”
  1. [45]
    He was asked if he made any further investigations about the order after the incident. Constable George said:

“Yeah, so, back at the station, I also brought up what’s called QPRIME which is our police system. And I’ve actually viewed for myself there was what a scanned order from the court, and when I saw for myself that, my interpretation of reading the order, that the appellant had breached No 4 and 5 of the order.”

  1. [46]
    He was asked to look at condition 5 and was asked what his understanding was in relation to what the defendant had breached. Constable George said:

“So, with – given the fact that the order was put in place three days prior to us attending, that he is not to be at the property except for police attendance, his – so I brought this up with him, and in his defence, he said that he spoke to Senior Constable Keith McCauliffe, who said that he could attend.  So I contacted Keith McCauliffe, which was also still recorded on my body – worn video where I think you’re going to hear Keith responding to my questions, and he said he did not give - - -.”

  1. [47]
    That evidence suggests that Constable George was of the view that the appellant was in breach of condition 5. However, given his evidence as to when he obtained a copy of the order, it is difficult to conclude when it was that Constable George came to that view.
  1. [48]
    The body camera footage was played. There was apparently a copy of the order in possession of police when they attended at the property as a female police officer can be seen in the body camera footage holding up a document which is apparently a copy of the order. After ACP’s arrest, she shows it to the male officer other than Constable George. Constable George is heard to say: “One of the conditions clearly states that you are not to be here unless police are in attendance with you.” That statement suggests that he was being arrested, in Constable George’s view, because he was in breach of condition 5.
  1. [49]
    Senior Constable Rebecca Fox gave evidence. She was the female officer who attended the property.
  1. [50]
    She was asked what her interactions with the appellant were on that occasion. Senior Constable Fox said:

“Very limited with the defendant.  We went to the property.  He was at the rear of the property, near a flatbed trailer, near flatbed truck trailer and was loading some farm equipment, wiring or something, on the back of that truck and we had just a conversation in relation to him being at the property without police in attendance.”

  1. [51]
    She said that she was aware that there was a temporary protection order in place which had been made by the Gatton Magistrates Court on 15 February 2016. She said that she believed that she had been advised of the order through police communications in Toowoomba. When asked what conditions she was made aware of she said:

“I believe there was five conditions.  I am aware of 4 and 5 to be in breach, which is that he was to leave the premises immediately, as of the court date, and also to only re-attend the property to collect uncontested property in the presence of police officers.”

  1. [52]
    That evidence as to Senior Constable Fox’s understanding of the conditions of the order is consistent with what she can be heard saying in the recording. At one point she is holding up what is apparently a copy of the order, showing it to the appellant.
  1. [53]
    Senior Constable Fox said that:

“The defendant was spoken with by the other two officers and he was placed under arrest for breach of the temporary protection order, for being at the property without police attendance.”

  1. [54]
    That is consistent with the footage. After his arrest when he is being placed in the vehicle, ACP refers to communication from his lawyers about his departure. Senior Constable Fox says in reference to the copy of the order she is holding “Well, that hasn’t been set out here. It just says that you can attend, but with police, but not on your own. With police.” Earlier in the recording, Senior Constable Fox asks ACP if he was present in court when the order was made. Having confirmed that he was she says “Their effective immediately.” That is an accurate statement of the law as provided by s 96(a) of Act; but s 96(a) does not provide any time for compliance with any condition. Any such time for compliance must be found in the order itself.
  1. [55]
    The third police officer who gave evidence was Senior Constable Justin Tinder. He was asked what ACP had been arrested for and he said “breaking a domestic violence order”. He could not recall the exact conditions in the order that were breached.
  1. [56]
    It is apparent from the footage that he read the order at the property. Even before that, very early in the exchange with the appellant, Senior Constable Tinder says “it says in the order that you are not to come here except in the company of a police officer.”
  1. [57]
    The appellant elected to give evidence. He said that he had emailed MP’s lawyers stipulating a time to vacate the property “because there was no time in the order” and he needed a little bit of time to vacate.
  1. [58]
    The appellant was cross-examined about having asked Magistrate Lee how long he had to vacate and having been told it was “straight away”. The appellant referred to “straight away” as being “still ambiguous”. The appellant said he was “pretty sure” that “straight away” was used, but said “I believe the transcript’s there”.
  1. [59]
    In respect of his presence at the property on 18 February 2016 he was asked:

“And you made no attempt on that day to organise for a police officer to come with you, did you?”

  1. [60]
    The appellant answered:

“I was there on the property.  I hadn’t left the property.  Once I – I vacated the property, I believed that I needed to get police presence to enter the property.  So I hadn’t left the property - - - so I didn’t.”

  1. [61]
    That is consistent with what he said to police when they attended the property. Having observed that the order says that the company of a police office, the appellant expresses his understanding of that requirement to apply after he has vacated the property. Senior Constable Tinder asks “When did you vacate the premises?” to which the appellant responds “I haven’t” Senior Constable Tinder then asks “Is that what you are doing right now?” to which the appellant replies “Yes.”
  1. [62]
    As to his attempts to get agreement to more time, he said that:

“They said, well you know you can have until tomorrow morning or something like that – two days, I said – I said ‘no, I need more time’.”

He said that there was no agreement reached.

Grounds of appeal

  1. [63]
    Attached to ACP’s notice of appeal is a lengthy, six and a half page document. It is largely in the nature of a submission, and also sets out a lot of factual matters, many of which were not the subject of evidence on the summary trial. It does not directly state any specific grounds of appeal. It is possible, though, to discern that he contends that the domestic violence order was uncertain in its terms and that he ought not have been convicted of breaching it.
  1. [64]
    It is also apparent that the appellant has addressed matters which might relate to a breach of condition 4 of the domestic violence order and also matters which might relate to a breach of condition 5. For reasons which will be discussed, the fact that matters concerning a breach of each of those conditions are addressed is of some significance because it is unclear as to what condition was alleged to have been breached.

Consideration

  1. [65]
    A number of issues emerge from this recitation of the evidence. First, is that it is difficult to discern what acts or omissions on the part of the appellant constituted the alleged breach of the domestic violence order of which he was charged and for which he was convicted.
  1. [66]
    Secondly, the learned Magistrate in concluding that the domestic violence order had been breached did not confine herself to a consideration of the terms of the actual order made by Magistrate Lee.
  1. [67]
    Third, the learned Magistrate heard evidence about what was said to have been stated by Magistrate Lee as to the requirements of the order, and of other persons’ interpretations of the order, and then relied upon that evidence to construe the meaning of the domestic violence order herself.
  1. [68]
    The learned Magistrate’s reasons demonstrate that her Honour convicted the appellant on the basis that he had breached the domestic violence order because he was in breach of condition 4; but it is far from clear that he was charged on that basis; in fact it would seem most unlikely that he was.
  1. [69]
    As has already been observed the charge is unparticularised. It contains a bare allegation that at the stated time and place he contravened the order. In my view, there is a real issue as to whether there was even a valid complaint.
  1. [70]
    In Bell v Hendry & Ors [2014] ICQ 018, Martin P said the following in respect of a valid complaint under the Justices Act:

“The requirements for a valid complaint are to be determined, first, by reference to the relevant provisions of the Act and the Justices Act. Secondly, the complaint must be considered against the background of the common law requirements and the constructions the courts have given to the relevant provisions or their counterparts in other jurisdictions.

The Justices Act does not descend to great detail in setting out the requirements for a complaint.

Section 42 requires, among other things, that a complaint be in writing.

Section 43 dictates that a complaint shall be for one matter only, subject to certain exceptions. A complaint may be for two or more matters where the matters of complaint:

  1. (a)
    are alleged to be constituted by the same act or omission on the part of the defendant; or
  1. (b)
    are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
  1. (c)
    are founded on substantially the same facts; or
  1. (d)
    are, or form part of, a series of offences or matters of complaint or a similar character.

Section 47 allows that the description of any offence in the words of the Act, order, by-law, regulation or other instrument creating the offence, or in similar words, shall be sufficient in law.

The common law requirements for a valid complaint were considered in Kirk v Industrial Court of New South Wales and the following were identified:

  1. (a)
    A defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge
  1. (b)
    The complaint must inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet.
  1. (c)
    Such a charge “must at least condescend to identifying the essential factual ingredients of the actual offence”.
  1. (d)
    An information (complaint) must specify “the time, place and manner of the defendant’s acts or omissions”.[5]
  1. [71]
    Although his Honour’s observations were made in the context of a complaint in writing, by operation of s 42(2) of the Justices Act, they apply equally to a proceeding commenced by bench charge sheet.
  1. [72]
    In my view, the charge made in this matter did not tell the appellant “the particular act, matter or thing alleged as the foundation of the charge”. It did not inform him, or the court, of the substance of the charge. It did not condescend to identifying the essential factual ingredients of the actual offence. Nor did it specify the manner of the defendant’s acts or omissions.
  1. [73]
    The deficiency of the charge is demonstrated by the way in which the proceedings below were conducted and the evidence which was given. Although it is apparent that the appellant was convicted on the basis of having contravened condition 4 of the order, her Honour’s reasons commenced by referring to conditions 4 and 5 as being relevant. If the charge against the appellant related to a contravention of condition 4, it is difficult to understand how condition 5 would be relevant. However, it is understandable that her Honour might refer to it as such given that Constable George gave evidence of his having formed the opinion that “the appellant had breached No 4 and 5 of the order”, and when asked what he understood the defendant to have breached, quite clearly indicated that he understood the appellant to have breached condition 5 by being at the property without police in attendance.
  1. [74]
    One might pause to observe that condition 5 does not, in its terms, require or permit the appellant to do anything. In its terms, it imposes an obligation not upon the appellant, but upon MP. It is difficult to see how the appellant could ever be in breach of condition 5 of the order.
  1. [75]
    So too, Senior Constable Fox seems to have thought that any contravention of the order was constituted by a breach of condition 5. She said police had a conversation with the appellant “in relation to him being at the property without police in attendance”. Although Senior Constable Fox said she was “aware of 4 and 5 to be in breach” she said the appellant was “placed under arrest for breach of the temporary violence order for being at the property without police attendance”.
  1. [76]
    On that evidence, it would appear that the appellant may have been convicted of an offence constituted by a different act or omission than that for which he had been arrested and charged.
  1. [77]
    The appellant represented himself before the Magistrate, as he has on the appeal, and it is understandable that he did not request particulars of the charge, or raise these issues either before the Magistrates Court or this court.
  1. [78]
    It is, ultimately, unnecessary to resolve the issue as to whether there was a valid charge because I am of the view that ACP should not have been convicted of the offence constituted by a contravention of condition 4 in any event.
  1. [79]
    Her Honour’s conclusion that “the order is quite clear on its face and I am satisfied that the appellant was aware that he was to get out straight away” demonstrates the errors which her Honour made. So too does her Honour’s statement in her reasons that “the order of the court was that the appellant was to leave the property straight away”.
  1. [80]
    The order is not quite clear on its face, and nor was it that he was to leave the property straight away. To the contrary, the order is entirely unclear. It provides no timeframe within which, or time by which, the appellant was to vacate the property. The order of Magistrate Lee was deficient in that regard.
  1. [81]
    An ouster condition made under s 63 of the DVFPA is in the nature of an injunction. Framed as a requirement to “vacate” the property, the ouster condition was in the nature of a mandatory injunction. In Attorney General v Staffordshire County Council[6]it was said that:

“It is the necessary requisite of every injunction and every mandatory order that it should be certain and definite in its terms, and it must or ought to be quite clear what the person against whom the injunction or order is made is required to do or refrain from doing.”

  1. [82]
    Similarly, in Low v Innes[7]Westbury LC said:

“The first duty of the court in granting an injunction of this kind is to lay down a clear and definite rule.  If the language of the order in which the injunction is contained is itself ambiguous, uncertain, indefinite, giving no clear rule of conduct the injunction becomes a snare to the defendant, who violates it, if at all, at the peril of imprisonment.”

  1. [83]
    This requirement for certainty in such an order was stated in Collins v Wayne Iron Works[8]in these terms:

“(An injunction) should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.”

  1. [84]
    Condition 4 required the appellant to vacate the property. The Macquarie Dictionary defines “vacate” to mean “to make vacant; cause to be empty or unoccupied; to give up occupancy of”.
  1. [85]
    As at the time of the order the appellant had occupied the property. The order to vacate the property required him to give up that occupancy and render the property unoccupied. But the order could not have meant that he could not that day return and set foot upon the property. Indeed, in order to comply with the order, that is to vacate the property, he would need to return to the property so that he could cause it to be unoccupied.
  1. [86]
    It is worth noting that having made an ouster order against ACP who was at the time “at the premises” within the proper meaning of that expression as used in s 65(1)(b) of the DVFPA, Magistrate Lee was required to consider imposing a return condition which permitted ACP to remain at the premises to remove stated personal property. That was not done.
  1. [87]
    Once ACP returned to the property to vacate it, the condition gave no prescription as to the time within which, or by which, that was to occur. Reasonable minds may very well differ as to what “vacate” required in those circumstances. However, from the exchange between Senior Constable Tinder and the appellant, it is clear that the appellant considered that he was in the process of vacating the property.
  1. [88]
    The inherent uncertainty in the condition seems to have been recognised by all: the appellant; MP; the prosecutor; the police witnesses. This is why resort was had to Magistrate Lee’s reference to “straight away”. However, the learned Magistrate erred in resorting to that reference to “straight away” in a number of ways.
  1. [89]
    First and most importantly, the words “straight away” stated by Magistrate Lee in court were not incorporated within the condition. The appellant could only be convicted of contravening the actual order. Magistrate Lee’s comment did not inform the content of the order. Her Honour erred in allowing it to do so.
  1. [90]
    Secondly, the learned Magistrate ought not to have heard evidence from witnesses of what Magistrate Lee said. If any evidence of what had been said was relevant, it ought to have been in the form of a transcript to the proceedings before him. From ACP’s comments when being cross-examined before her Honour, it would seem that the transcript was available. It ought to have been put before her Honour if what was said by the Magistrate in court was relevant. On the hearing of the appeal the parties agreed it ought be before me. The relevant exchange is as follows:

“ACP: So how long do I have until I have to get off the farm?

Bench: Well, straight away.  OK?”

  1. [91]
    In context, the exchange does not support her Honour’s conclusion that “it means straight away. It does not mean tomorrow, it does not mean the next day. So by simply even staying on the property he is breaching – he breached the order”.
  1. [92]
    Given that the transcript to the proceeding indicates that Magistrate Lee commenced giving his decision at 12.40pm and given that the hearing was in Gatton and the property was at Summerholm, had the appellant been still at the property the following day taking measures to vacate the property as the formal order required him to do, it is not at all clear to me that he would either be in breach of the formal order or, to the extent it is relevant, not be doing so straight away.
  1. [93]
    The appellant’s observation in the course of the proceeding before her Honour that “straight away” is still ambiguous, was in my opinion entirely correct. The fact that he had a very different view to her Honour as to what those words meant demonstrates the ambiguity, and that reasonable minds might well differ as to their meaning.
  1. [94]
    In the end, the appellant was convicted not of contravening a domestic violence order against him, but of contravening her Honour’s interpretation of that order based upon her Honour’s own interpretation of an expression used by Magistrate Lee, but which did not form part of the order.
  1. [95]
    Given the lack of clarity of condition 4 of the order and that the evidence demonstrated that on 18 February 2016 the appellant was still taking steps to vacate the property as that condition required him to do, the learned Magistrate could not have been satisfied beyond reasonable doubt that he had contravened the order.
  1. [96]
    Her Honour erred in convicting him. The conviction must be set aside and the charge dismissed.

Footnotes

[1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 – 204 [14]; Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; CDJ v VAJ (1998) 197 CLR 172 at 201 – 202.

[2] Fox v Percy (2003) 214 CLR 188 at 126 – 127 [25] per Gleeson CJ, Gummow and Kirby JJ.

[3] Stevenson v Yass [2006] 2 Qd R 150 at 162 [36] per McMurdo P.

[4] This is not a case in which s 177(4) applies. Reference to the provision is made merely to illustrate the distinction between a domestic violence order and the conditions of such order.

[5] [2014] ICQ 018 at [32] –[37]

[6] [1905] 1 Ch 336 at 342.

[7] (1864) 4 DE G J & SM 286 at 295-296.

[8] (1910) 227 PA 326, 76A, 24 at p 25 (US).

Close

Editorial Notes

  • Published Case Name:

    ACP v Queensland Police Service (No 2)

  • Shortened Case Name:

    ACP v Queensland Police Service (No 2)

  • MNC:

    [2017] QDC 293

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    08 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
1 citation
Jump To
Cite 1 - (2000) 203 CLR 172
Attorney-General v Staffordshire County Council [1905] 1 Ch 336
1 citation
Jump To
Cite 1 - [1905] 1 Ch 336
Bell v Hendry & Ors [2014] ICQ 18
2 citations
Jump To
Cite 1 - [2014] ICQ 18
Cite 2 - [2014] ICQ 18
CDJ v VAJ (1998) 197 CLR 172
1 citation
Jump To
Cite 1 - (1998) 197 CLR 172
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
1 citation
Jump To
Cite 1 - (2000) 203 CLR 194
Collins v Wayne Iron Works, (1910) 227 Pa 326
1 citation
Jump To
Cite 1 - (1910) 227 Pa 326
Fox v Percy (2003) 214 CLR 188
3 citations
Jump To
Cite 1 - (2003) 214 CLR 188
Cite 2 - (2003) 214 CLR 188
Cite 3 - (2003) 214 CLR 188
Low v Innes (1864) 4 DE G J & SM 286
1 citation
Jump To
Cite 1 - (1864) 4 DE G J & SM 286
Stevenson v Yasso[2006] 2 Qd R 150; [2006] QCA 40
1 citation
Jump To
Cite 1 - [2006] 2 Qd R 150

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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