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Gebicki v Commissioner of Police[2019] QDC 108

Gebicki v Commissioner of Police[2019] QDC 108

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Gebicki v Commissioner of Police [2019] QDC 108

PARTIES:

KARL MARK GEBICKI

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

14/18

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Bundaberg

DELIVERED ON:

18 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2019

JUDGE:

Devereaux SC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – POWERS OF COURT – where the appellant sought leave to adduce further evidence – whether there are special grounds to grant leave

HEALTH LAW – AMBULANCE SERVICES – where the appellant submits that the ambulance officers unlawfully transported the appellant’s child – whether the ambulance officers’ transportation of the child was lawful

Ambulance Services Act 1991 (Qld) s 3D, s 46

Justices Act 1886 (Qld) s 222, s 223

COUNSEL:

Self-represented appellant

R Aldas (sol) for the respondent

SOLICITORS:

Director of Public Prosecutions for the respondent

  1. [1]
    The appellant was convicted of obstructing an ambulance officer, an offence against s 46 of the Ambulance Services Act 1991 (Qld) (the Act).  The events giving rise to the charge occurred in the late afternoon of 27 September 2017.  The appellant appeals his conviction pursuant to section 222 of the Justices Act 1886 (Qld).
  1. [2]
    The trial came before the Magistrates Court at Bundaberg on 14 May 2018. The record comprises the transcript of evidence, a recording of radio communications made by the ambulance officers, an aerial photograph of the appellant’s property and photographs of the gates to the property. The appellant sought leave pursuant to section 223 of the Justices Act 1886 (Qld) to adduce fresh or additional evidence.  I will return to that material below.
  1. [3]
    Queensland Ambulance Service ambulance officer, Mr Thompson, gave evidence that he and his partner, Ms Bayntum, responded to a call to help the appellant’s wife, who was 36 years old and pregnant. They drove to the appellant’s property at Mount Perry. Ms Bayntum, who was the designated treating officer, decided the patient should be taken to hospital. The appellant’s child seemed to the officers to be in such a poor state of health that she, too, should be taken to the hospital. At talk of getting a bag ready for the child, the appellant said, “nobody’s leaving without me.” He grabbed a CB radio and spoke into it, “Lock the gates. Secure the premises, nobody is to enter or exit.” The ambulance officers put the mother and daughter into their vehicle. Mr Thompson drove towards the gate but found it locked with two bike locks. An elderly woman, the appellant’s mother, came out of a makeshift house at the top of the driveway. She ignored his demand that she open the gate. He took a bolt cutter and cut through both locks. The ambulance officers took the patients to a hospital at Bundaberg.
  1. [4]
    Ms Bayntum gave evidence to similar effect. The prosecution also called Acting Senior Constable Moxley, whose evidence I will refer to below.
  1. [5]
    At the close of the prosecution case, the appellant submitted that there was insufficient evidence to prove his guilt. The learned magistrate correctly considered there was a case to answer and asked whether the appellant wished to go into evidence. The appellant asked for an adjournment to bring a witness to court, whom he identified as the previous officer in charge of police at Gin Gin. The appellant told the magistrate that the proposed witness had been at the appellant’s address in January 2017 and cut the gate locks at that time. The application was refused.
  1. [6]
    The appellant elected not to give evidence.
  1. [7]
    The learned magistrate gave judgment on 16 May 2018. His Honour reviewed the evidence and set out the relevant provisions of the Act. His Honour, having:
  1. (a)
    concluded the two primary witnesses were ambulance officers appointed under s 13 of the Act and were acting under the authority of the Act;
  1. (b)
    accepted the evidence that the ambulance officers found the gate locked and that its being locked was the result of the appellant’s command; and
  1. (c)
    accepted that the officers were thereby hindered in their statutory purpose,

found the appellant guilty.

  1. [8]
    There is no error in the learned magistrate’s reasoning. Upon my own review of the record, I am satisfied the prosecution case was established beyond reasonable doubt.

Application to adduce new evidence

  1. [9]
    On 5 December 2018, Reid DCJ ordered that the appellant file an application to adduce further evidence with supporting material by 7 January 2019.
  1. [10]
    The appellant emailed to the registry and respondent a supplementary document on 7 January 2019, giving notice that he intended to provide further evidence and requesting that the court obtain certain evidence. This document became Exhibit 1 on the hearing of the appeal.
  1. [11]
    The supplementary document included that he was ‘adding evidence in the form of a dvd from 12th Dec 2017, which was taken by the Northern Burnett Regional Council and from the Minister from the Department of Mines Land and Energy’. ­He did not produce any such recording and at the hearing of the appeal, the appellant effectively withdrew his application in respect of that evidence.[1]
  1. [12]
    The supplementary document also included that the appellant would be ‘submitting medical records from Bundaberg Base Hospital’. At the hearing of the appeal, I received for consideration two letters from the Department of Communities, Child Safety and Disability Services. For reasons that I return to below, I am not satisfied there are special grounds for leave to rely on the material on the appeal.
  1. [13]
    In the supplementary document, the appellant asked that the court obtain body-cam video made at the appellant’s property on 27 and 28 September 2017, as well as telephone logs. He submitted, in writing, that these materials “may lead to a case of perjury of 1 or more of the witnesses”.
  1. [14]
    At the hearing of the appeal, I received for consideration a DVD containing body-cam video of a Queensland Police Service officer dated 28 September 2017. The only issue to which I understand the materials could be relevant was the credibility of Acting Senior Constable Moxley. The appellant submitted that the body-cam video of 28 September 2017 does not show Moxley taking the photograph of the gate, as the officer said in evidence he did. The appellant asserted at the hearing that the position of the gates shown in the photograph was more consistent with their appearance in October 2017, when police came to the property to serve a notice to appear on the appellant and the appellant’s mother, Mrs Baker. The officer seemed to accept, in cross-examination, that he served a notice to appear on Mrs Baker on 14 October 2017 and that he might have served a notice to appear on the appellant on 3 October 2017, and not, as he first asserted, on 28 September 2017.
  1. [15]
    The thrust of the appellant’s attack was that the prosecution did not have sufficient evidence of the charge because it could not be proved that the locks were cut. Ambulance officer Thompson swore to cutting the locks. The appellant did not put to Moxley that the locks were not cut when he saw them, but suggested they had been cut at an earlier time. In the result, Moxley’s possible inaccuracy about when he took his photo, whether a lie or a mistake, went to his credibility but not to any issue in the trial. I am not satisfied there are special grounds for leave to rely on that recording on the appeal.
  1. [16]
    No other material referred to in the appellant’s supplementary document was made available at the hearing of the appeal. In the result, leave is refused to the appellant to adduce any further evidence.

Grounds of Appeal

  1. [17]
    The appellant raises the following appeal grounds in his notice of appeal:

*Not allowed to present

1) Statements

2) Video Footage

3) Call Witnesses (Ground 1)

*The sheet provided at the beginning of the court on 15 May 2018 not able to read it (Ground 2)

*Not allowed to present medical reports (Ground 1)

  1. [18]
    The appellant elaborated upon his grounds of appeal in his outline of submissions as follows:
  1. not allowed to call any witnesses (Ground 1)
  1. not allowed to play video and sound to the court (Ground 1)
  1. not allowed submit paperwork from child protection service (Ground 1)
  1. not allowed submit paperwork from Bundaberg hospital (Ground 1)
  1. the co-accused police offer evidence charges was withdrawn (Ground 3)
  1. the family is on restricted health care from the found guilty
  1. [the appellant’s wife] is a chronic disease is not able to get specialist care the Bundaberg hospital
  1. no consideration to the naxitey [sic anxiety] attacks I have going back a truck accident on or about 11 Aug 2008

Ground 1 - Procedural fairness

Not allowed to call any witnesses

  1. [19]
    I have briefly mentioned the adjournment application above at [5].  After the prosecution case closed, the appellant submitted to the learned magistrate there was no case to answer because, among other things, there was no proof the gate was actually locked, there was no evidence of the state of the locks before the ambulance arrived and no scientific evidence matching the bolt cutters to the condition of the locks.  The learned magistrate dealt with these submissions, finding there was a case to answer.  The appellant then asked for an adjournment so that he could obtain a witness, identified as Tim Mariner, the previous officer in charge of Gin Gin police. The appellant told the magistrate that Mariner was at his property and had cut the padlocks in January “of that year” when the appellant could not find the key.  The implied relevance of the evidence was that it precluded the cutting of the locks by Thompson. 
  1. [20]
    Having commented that the alleged offence does not relate to January 2017, the learned magistrate refused the adjournment. That discretionary decision was open to the magistrate. It was for the appellant to have witnesses ready on the day that had been set for his trial. The Bench Charge Sheet endorsements show the complaint was first before the court on 31 October 2017. After mentions in November and December, the trial date was set on 15 February 2018 for 14 May 2018. The proposed evidence of the officer might have been relevant, depending on what other evidence there was about the state of the locks at the time of the incident the court was concerned with. But the appellant thereafter elected not to give evidence. I am not satisfied that the appellant was denied procedural fairness and that the trial miscarried because of the refusal to grant the adjournment.
  1. [21]
    At the hearing of the appeal, the appellant further submitted that he was not allowed to call a witness at his trial, being Mrs Baker. The respondent submitted that there is no support for this in the transcript of proceedings. The transcript shows that the appellant elected not to go into evidence and did not raise with the learned magistrate that Mrs Baker was unavailable to give evidence until after closing addresses. In the event, the appellant was not denied procedural fairness.
  1. [22]
    I gave the appellant leave to file material in the form of an affidavit containing the evidence that Mrs Baker would have given had she been called, and gave the respondent leave to file a response. On 28 March 2019, the appellant filed a document titled ‘As a Deposition on the 26th of march 2019 by Karl Gebicki and Peg Baker’.  The statement is signed by the appellant.  The statement is to the effect that Mrs Baker was at home at the relevant time and did not see an ambulance officer obtain or use a cutting device on the property.  The statement does not address whether Mrs Baker received instructions from the appellant to lock the gate or secure the property. 
  1. [23]
    On 3 April 2019, the respondent filed a response and submitted that there were no special grounds to grant leave to adduce this evidence. The respondent further submits that the statement does not contain evidence relevant to the trial issue, being whether the appellant obstructed ambulance officers by making certain statements over a radio, and so no miscarriage of justice would arise if leave is not granted.
  1. [24]
    The statement does not contain evidence capable of raising a reasonable doubt as to the appellant’s guilt of the offence and I refuse leave to adduce this evidence.

Not allowed to play video and sound to the court, or submit paperwork

  1. [25]
    As to not being allowed to play video to the court, upon the appellant’s request, the court played the recording of the Queensland Ambulance Service radio communications during Thompson’s evidence. This allowed the appellant to cross examine on it. There was no other request by the appellant to admit or play video or audio evidence. There was also no attempt to admit into evidence material, including reports, produced by Bundaberg Base Hospital or any government department.
  1. [26]
    This ground of appeal fails.

Ground 2 – ‘Unrepresented Defendant Trial Information’

  1. [27]
    At the hearing of the appeal, the appellant confirmed that the document referred to in the notice of appeal that he alleges he was unable to read is a document described as ‘Unrepresented Defendant Trial Information’.[2]  The respondent submits that the appellant was provided with this document, together with a copy of section 46 of the Act, at the commencement of the trial on 14 May 2018. 
  1. [28]
    A copy of this document was tendered at the appeal and it appears to be general instructions produced by the court for unrepresented defendants. The learned magistrate asked the appellant prior to his arraignment to confirm that he had received a copy of this document and that he understood what the document outlined, and the appellant confirmed that he understood.[3]  No issue of procedural unfairness arises in the circumstances.
  1. [29]
    It follows that this ground of appeal fails.

Ground 3 – Co-accused

  1. [30]
    The appellant submits that, because the Queensland Police Service did not proceed with its prosecution of Mrs Baker, his conviction ought to be quashed.
  1. [31]
    This matter is irrelevant to the guilt of the appellant and I have already considered the possible relevance of Ms Baker to the appellant’s trial. I do not consider it as a ground of appeal.

Other submissions

  1. [32]
    The appellant’s submissions include that his conviction has had consequences for his family and wife’s health care. These submissions, and the submission that no consideration was given to the appellant’s anxiety, cannot have any bearing on the soundness of his conviction.
  1. [33]
    While these matters could be relevant to an appeal against sentence, the appellant did not appeal his sentence or address the issue in submissions, and did not adduce evidence relevant to these issues at sentence or at the hearing of this appeal.

Medical and child protection matters

  1. [34]
    I have mentioned at [12] that the appellant sought to adduce on the hearing of the appeal two letters from the Department of Communities, Child Safety and Disability Services.  For the reasons that follow, I refuse leave to adduce this evidence.
  1. [35]
    The two letters from the Department confirm the result of its officers’ assessment of the appellant’s children was “[u]nsubstantiated” as “children not in need of protection”. The letters are consistent with the appellant’s assertions from the bar table that the child was under treatment at the relevant time. In the circumstances, he may well have felt it unnecessary or wrong for the ambulance officers to take the child, but that did not mean the officers’ actions were unlawful.
  1. [36]
    The Queensland Ambulance Service’s functions are set out in s 3D of the Act and include, “to protect persons from injury or death, whether or not the persons are sick or injured” and “to provide transport for persons requiring attention at medical or health care facilities”.
  1. [37]
    The appellant put to Thompson in cross-examination that the witness was unaware the child was already under treatment and that Thompson assumed the child was not being treated. While Thompson accepted that the appellant had told him at the time that the child was under treatment and that he was shown a cream used for that purpose, he said he could not read the medical label on the cream in the lighting conditions and said, ‘no amount of [indistinct] cream that you had was going to fix this problem that your daughter had.’[4]
  1. [38]
    Although Thompson appears to have been overwhelmed by the circumstances of the appellant’s residence, and this might have affected his judgment, the ambulance officers were nevertheless entitled to form the view that the child required medical attention. In my opinion, and as the learned magistrate found, the transporting of the child was lawful, based as it was on the professional assessments of the officers in all the circumstances they were presented with.

Disposition

  1. [39]
    As no ground of appeal has succeeded, I order that this appeal be dismissed.

Footnotes

[1] Gebicki v Commissioner of Police (District Court at Brisbane, Devereaux SC DCJ, 22 March 2019) page 8, line 45.

[2] Gebicki v Commissioner of Police (District Court at Brisbane, Devereaux SC DCJ, 22 March 2019) page 43, line 12.

[3] Police v Gebicki (Magistrates Court at Bundaberg, Magistrate Smith, 14 May 2018) page 2, lines 34 to 47.

[4] Police v Gebicki (Magistrates Court at Bundaberg, Magistrate Smith, 14 May 2018) page 12, line 15.

Close

Editorial Notes

  • Published Case Name:

    Gebicki v Commissioner of Police

  • Shortened Case Name:

    Gebicki v Commissioner of Police

  • MNC:

    [2019] QDC 108

  • Court:

    QDC

  • Judge(s):

    Devereaux DCJ

  • Date:

    18 Jul 2019

Appeal Status

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

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