REW v Commissioner of Police[2018] QDC 213

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, REW, appeals under s 222 of the Justices Act 1886 (Qld) against her conviction, after trial in the Southport Magistrates Court on 18 July 2017, of one offence of contravention of release conditions, in breach of s 179(2) of the Domestic and Family Violence Protection Act 2012 (Qld). Upon conviction, the appellant was ordered to enter into a recognisance in the sum of $100 to be of good behaviour for a period of six months. No conviction was recorded.

2. [2]
   Under s 223(1) of the Justices Act, the appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate. The appeal involves a rehearing in the technical sense of a review of the recorded proceedings below rather than a completely fresh hearing.^[1]

Relevant legal principles

3. [3]
   This Court is required to conduct a real review of the trial and the reasons. It must give its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s views.^[2] Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.^[3]  Recently, in Bode v Commissioner of Police [2018] QCA 186, McMurdo JA in his dissenting judgment, reiterated the task of a Court conducting an appeal by way of rehearing and observed that the judge was required to make his own findings of fact and to decide whether the case against the applicant was proved beyond reasonable doubt.^[4]

4. [4]
   Section 225(1) of the Justices Act empowers a judge to confirm, set aside or vary an appeal order, or make any order considered just. Under s 225(2) of the Justices Act, in setting aside an order, a judge may send the proceeding back for rehearing.

Preliminary issue – lost exhibits

5. [5]
   A preliminary issue arises in this case. Unfortunately, the exhibits that were tendered into evidence during the one-day trial have not been able to be located. Two affidavits, one sworn by the District Court Registrar and one by a legal officer from the Office of the Director of Public Prosecutions, were relied upon by the respondent to explain what had happened. This material shows that the exhibits were released to the Commissioner of Police on 20 October 2017. Despite the best efforts of the Office of the Director of Public Prosecutions, the reasons for the exhibits going missing are not clear on the material. An adjournment of the hearing of the appeal was granted on 16 March 2018, for the Office of the Director of Public Prosecutions to obtain copies of the exhibits, with a view to recreating them for the purpose of the hearing. Again, through no fault of the Office of the Director of Public Prosecutions and for reasons that are not, in my view, entirely satisfactory on the material before the Court, this has not been possible.

6. [6]
   On behalf of the respondent, it is submitted in reliance on the Court of Appeal decision of Teelow v Commissioner of Police [2009] QCA 84, that the transcript of the Magistrates Court proceeding, which I do have, provides a record of the evidence presented to that Court, and together with a transcript of the Magistrate’s reasons, I have sufficient record of the evidence and the proceeding below, to enable this Court as the appeal Court to act. I accept this submission. It follows that I have conducted the appeal on the basis that I have reviewed the transcript and the Magistrate’s reasons for decision.

Relevant facts

7. [7]
   Turning now to the facts. It is uncontroversial that on 28 January 2017 the appellant was taken into custody and detained under the Domestic and Family Violence Protection Act. Constable Belgrove gave evidence about the circumstances leading up to the appellant’s detainment. That is, at 4.30 pm in the afternoon (of 28 January 2017), he received a call in relation to a domestic dispute, and he and Constable Taylor attended at a residence where the aggrieved and the appellant were both present. There was drinking and loud music.

8. [8]
   The appellant was detained and taken to the Coomera Police Station. She was released later that day (around 6.30 pm). At the time of her release she was issued with a set of release conditions that she be of good behaviour towards the aggrieved, and that she was not to remain at, enter or attempt to enter the aggrieved’s residence or place of employment. Sergeant Toogood gave evidence that he explained these conditions to the appellant and she signed her undertaking of the release conditions. The appellant gave evidence that she was not lucid on the day and could not recall this happening.

9. [9]
   Constable Belgrove also gave evidence that as a result of a call from triple zero by the aggrieved, he returned to the address with his partner Constable Taylor, at approximately 9 pm that same evening. When the two police officers arrived at the address, the appellant was not there, but the aggrieved was. The aggrieved showed the officer some CCTV footage said to be taken from a camera installed in the bedroom of the dwelling. In his evidence, Constable Belgrove described what he saw in the footage to be a white minivan pulling up directly at the front of the camera; a person getting out; that person walking around the front of the driveway and banging on the garage door; that person collected some clothing and then leaving a couple of minutes later.

The CCTV footage

10. [10]
    At the trial below, the appellant objected to the admissibility of this evidence on the basis the officer had no consent to look at the CCTV footage. The Magistrate overruled this objection after Constable Belgrove gave evidence that he saw the aggrieved operate the machine. Constable Belgrove said he assumed the CCTV footage belonged to both the appellant and the aggrieved because they were a couple.

11. [11]
    Constable Belgrove also gave evidence that the CCTV footage was sent to a television screen, and then photographs were taken by him on his mobile phone, and these were the images that he described as depicting the appellant in the driveway of the dwelling. In other words, they were the photographs of still images that were on the CCTV footage. These photographs were tendered and marked exhibit 1 in the proceeding below. Unfortunately, there is no reference in the transcript to the time on these photographs, but the inference which I draw from my review of the evidence at the trial was that the photographs had a timestamp between 6.30 pm and 9 pm on 28 January 2017.

12. [12]
    Constable Taylor gave evidence consistent with Constable Belgrove. The aggrieved gave evidence that he showed the police the CCTV footage, he thinks after his first interaction with the police, and he agreed that exhibit 1 was a photograph of the CCTV footage that he showed the police.

13. [13]
    The appellant gave evidence. Under cross-examination, she was asked about going back to the premises, and she said, “I don’t remember that.”

14. [14]
    She was asked: “You don’t remember or you didn’t go back?”, to which she responded: “I didn’t go back.”

15. [15]
    She was then asked:

“You have to agree that the time depicted in the pictures are consistent with the times the triple zero call was made by Nathan?”

16. [16]
    Her evidence was:

“Yeah, that’s right. But that’s the time he looked at the security camera. It would be more helpful if you have gone to the bottle-O and gotten security camera of me there too. That would help me remember.”

17. [17]
    The appellant was also asked about the recalibration of the CCTV footage, and she said:

“Honestly, I’m too lazy to think about calibrating my security equipment.”

18. [18]
    It was unclear on the evidence when the CCTV footage was installed, although it seems it may have been perhaps a few weeks earlier.

The decision below

19. [19]
    The learned Magistrate found the appellant guilty of the offence charged. In his ex tempore reasons delivered on 18 July 2017, he relevantly said:

“I take into account all of the evidence, including her evidence. Most importantly, none of her evidence went at all to the issues. She said she had no memory of the events. I am unable to determine whether she is being truthful or not when she said that, but giving her the benefit of the doubt, she says she has no memory of the events and therefore cannot challenge directly the evidence which is in front of me.

---

The evidence consists of probably the best evidence one could hope to get in the circumstances. An experienced senior constable of police gave direct evidence. He explained to the respondent in the way which he normally does. He read out a copy of the release conditions, explained them to her and gave them to her. She signed them. And while that may not be her usual signature, and while she may certainly have been distressed on the day and behaving in some manner which is not consistent with her normal behaviour, or she may have got the short end of the stick on that day, well, she may have easily been the aggrieved on that day. That was not the case.

---

I am stuck with the fact that under section 26 of the Criminal Code, every person is presumed to be of sound mind and to have sound mind at any time which comes into question until the contrary is proven. No medical evidence of any type was tendered before me about the state of mind of the defendant on that particular night or generally. She gave evidence that she suffers from post-traumatic stress disorder and she apparently has a report or a diagnosis. I do not need to make any determination, but even if she does suffer from PTSD and was indeed feeling very stressed on the night, as I imagine she would, it does not change the fact that the law deems that she was sane enough to understand the conditions which I find and I accept from the senior constable that he explained to her.

---

I then have the evidence of the aggrieved, who was cross-examined because he was declared hostile. He clearly to me seemed to be unwilling to tell the truth as between the parties. There is the best evidence one could imagine of a time and date stamped photograph showing the defendant being present at the time. They were copied into a camera by a police officer. That video tape was not tested by anybody, including the defendant. The complainant said he saw her live or he saw her when he looked at the camera, and he did not know what buttons he pushed or how he operated [indistinct] the time and date on the stamps, as I say, are consistent with her release time and her arrest time, and it does appear to me to be both her in the pictures, as she seems to be wearing what she was released from the station. It also accords with common sense in what she told me that she has a very good reason to go back there, that is, she has almost nothing on her, and she may well have gone back there to retrieve the things that she is depicted in the photographs recovering. Nonetheless, none of that constitutes any sort of sudden or extraordinary emergency which would enable a person of ordinary self-control to act otherwise and to breach the order which has been explained to her.”

Analysis

20. [20]
    The appellant raises a number of grounds of appeal. First, that the release conditions on which the appellant was placed on by police were illegal as they forced her into vagrancy and homelessness and promoted illegal activities. In my view, there is no basis to this ground of appeal. The release conditions were not appealed, and whilst I do have some concern about the practical nature of not allowing the appellant to return to where she was living to get some clothes, I realise the police have a difficult job, and they do their best in the circumstances.

21. [21]
    The second and third grounds are that the Magistrate failed to consider extrinsic legislation as to guidance on the admission of the improperly obtained identification evidence, and that the Magistrate allowed improperly obtained identification evidence to be admitted. The photographs that were taken were documentary hearsay. In the circumstances, particularly given that the evidence from Constable Belgrove was that he took the photographs and then later the photographs were confirmed by the aggrieved to have been taken of the footage, I do not consider that the Magistrate erred in allowing the photographs into evidence.

22. [22]
    However, in my view, the photographs were of limited use. Whilst there might have been a date and stamp consistent with the police case, that does not prove the police case for the prosecution. The onus is on police prosecutions to prove each element of the offence beyond reasonable doubt. The crucial issue before the learned Magistrate was whether the appellant had returned to the aggrieved’s residence after 6.30 pm on 28 January 2017. There was no evidence from any person, including the aggrieved, that he saw the appellant there at the time. The police prosecutions case rested entirely on photos of the CCTV footage. The CCTV footage itself was not in evidence. The police prosecutions relied on the time and date on the photograph of the CCTV footage of evidence tending to prove a fact, namely, that the footage was taken at that time and date.

23. [23]
    The admissibility of such evidence is subject to s 95 of the Evidence Act 1977 (Qld). In this case, there was no s 95 certificate tendered. Even if such a certificate was not required, in my view, the evidence relied upon by the Magistrate to convict the appellant was unreliable. There was, in my view, no evidence of any review or checking of the working order of the CCTV footage. For example, the police officer did not check that at least the time on the recording as he was reviewing it was the time on his watch. He did not check with the aggrieved when he had last looked at the CCTV footage.

24. [24]
    In my view, having reviewed all of the evidence, there is no evidence from the aggrieved that places the appellant at his house in the intervening period between her release and his calling the police after viewing the footage. As I say, no one else saw the appellant there. In his reasons, the Magistrate relied on the best evidence being the time and date stamp photograph showing the appellant being present at the time that was copied in to a camera by the police officer. He did note that the video tape was not tested by anyone, but he relied on this evidence as being consistent with her release and her arrest time. The Magistrate also referred to it appearing to him to be both her in the pictures, “and she seems to be wearing what she was when released from the station”. It is difficult to see on my review of the transcript how the learned Magistrate could have reached such a view about what was being worn. But I did not see the footage that was played in cross-examination (that was not tendered into evidence), and I have not seen the photographs that were tendered into evidence before the learned Magistrate.

25. [25]
    The only evidence of what the appellant was wearing at all during the day was a reference to the appellant being in need of a jumper at the watch-house, and also under cross-examination, Constable Belgrove was shown some footage by the appellant of the earlier incidents and there is a suggestion that the appellant’s breasts were showing. This footage, as I say, was played to Constable Belgrove under cross-examination, but was not tendered into evidence.

26. [26]
    In my view, that the appellant may have been wearing the same clothes in the photos that she had on at the watch-house does not establish beyond reasonable doubt that she had attended the aggrieved’s house after her release. And it does not fix what, in my view, is a basic evidentiary problem for the police prosecutions. That is because, in my view, the entire case turns on the evidence of the accuracy of the photographs taken of the CCTV footage. In my respectful opinion, it was wrong for the Magistrate to have relied on this evidence without a consideration or evidence of its accuracy. In my respectful view, the learned Magistrate erred in giving any weight to this evidence insofar as it supported the appellant being at the aggrieved’s residence at the time and date alleged.

Appeal allowed

27. [27]
    It follows, in my view, that the learned Magistrate made both a legal and factual error. I therefore order that the conviction and sentence below be set aside.

Should the proceeding be sent back for a re-hearing?

28. [28]
    In this case, having allowed the appeal, I have considered whether or not I ought to send the proceeding back for rehearing. A number of witnesses were called and the learned Magistrate made findings of credibility, particularly about the credibility of the aggrieved.

29. [29]
    In my view, however, this case does not turn on the credibility of any witnesses but turns on the evidence of the time and date stamp on the photographs. In my view, the observations of the Queensland Court of Appeal in Townsville City Council v McIntyre [2013] QCA 173 are most apposite. In that case, the Court of Appeal was dealing with an appeal concerning the conviction of the respondent for parking offences. The Court of Appeal described the District Court Judge’s decision not to send the matter back to the Magistrates Court for rehearing as “a quintessential exercise of the broad discretion conferred by s 225” of the Justices Act.^[5]

30. [30]
    In my view, as was the case in Townsville City Council v McIntyre,^[6] enough time and effort has gone into this matter and a rehearing is not warranted. Further, in this case, I can see no reason, having reached the view that I have, in relation to the accuracy of the time, or lack of accuracy of the time and date of the photographs, that there is any need to send the matter back. I am able to reach my own independent view of the evidence. In the exercise of my discretion, I do not consider the matter ought to be remitted back for hearing.

Conclusion

31. [31]
    Having reviewed the record below, for the reasons discussed about the limited use of the photographs elide upon to implicate the appellant, I am not satisfied beyond reasonable doubt that the appellant is guilty of the offence and I find the appellant not guilty.