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- Unreported Judgment
Clive v Commissioner of Police QDC 113
DISTRICT COURT OF QUEENSLAND
Clive v Commissioner of Police  QDC 113
PETER WILLIAM CLIVE
COMMISSIONER OF POLICE
Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
Magistrates Court at Noosa Heads
8 June 2021 (Orders)
15 June 2021 (Reasons)
8 June 2021
Long SC, DCJ
CRIMINAL LAW – APPEAL AGAINST CONVICTION BY MAGISTRATE – PROCEDURAL FAIRNESS – OPPORTUNITY TO BE HEARD – where the appellant was convicted and fined in the Magistrates Court for failure to appear in accordance with a bail undertaking – where the appellant received a text message regarding COVID related measures for attendances of defendants in Magistrates Courts and had sought that his matter be adjourned – where upon the adjournment being refused a warrant issued for the arrest of the appellant and was executed – whether the appellant was denied any real opportunity to be heard in respect of issues arising under s 33 of the Bail Act 1980 (Qld).
Bail Act 1980 (Qld), ss 28A, 33
Justice Act 1886 (Qld), ss 222, 225
Burke v Commissioner of Police  QCA 158
In re Hamilton; In re Forrest  AC 1038
R v Kitson  QCA 86
R v Tait  2 Qd R 667
Office of the Director of Public Prosecutions for the respondent
- On 3 November 2020, the appellant was convicted and fined $300 for the offence of failing to appear, on 6 October 2020 at the Noosa Heads Magistrates Court, in accordance with his bail undertaking. It was further ordered that no conviction be recorded for that offence.
- On 4 January 2021, the appellant filed a notice of appeal and notice of application for extension of time for filing that notice. Although no explanation is provided for the delay in the filing of the notice of appeal, it is appropriate to proceed in accordance with the principles discussed in R v Taitand confirmed in Burke v Commissioner of Police. In that such an extension may nevertheless be granted if it is in the interests of justice to do so, including where the appeal is considered to be viable. This is such a case.
- What follows are the reasons for the orders made upon the hearing of this matter on 8 June 2021, in the following terms:
- (1)The extension of time for filing the notice of appeal to and including 4 January 2021 is allowed; and
- (2)Upon the appeal being allowed, the orders made in the Magistrates Court at Noosa Heads on 3 November 2020 in respect of a charge of failure to appear in accordance with an undertaking are set aside without any order for rehearing or reconsideration.
- The grounds stated in the notice of appeal are:
“Txt messages were sent to say not to turn up to court if I was unwell. My child and I were unwell and didn’t attend court. Judge already been told of plea several times before this happened.”
The terse elaboration in the appellant’s outline of argument is as follows:
“I’m appealing my failure to appear because
- Messages were sent to not attend court if unwell
- My child and I were unwell
- I notified crt that I was unable to attend
- A warrant was put out on me
- I went to Noosa Police Station to notify them I was to unwell to attend court and get another court date
- Judge said that police had to make contact, for me to attend station (untrue) and unreasonable excuse
- I have done everything the courts have asked me
- I had previously entered a plea three times for the case”
- Although the material assembled as the record for the hearing of this matter did not include any record of the content of text message referred to, the respondent did confirm that as a COVID related measure, messages were at the relevant time sent from “a department in Brisbane” in respect of attendances of defendants in Magistrates Courts. So much is also confirmed by reference to the succinct transcript of the proceedings on 6 October 2020, when the warrant was issued. After it was confirmed that there was no appearance for the defendant, by the police prosecutor, it is recorded as follows:
“BENCH: You know what they keep – you know why this is happening? The stupid government, they send them an email, a text message.
SGT JOHNSTONE: Yeah.
BENCH: Have you seen the text message?
SGT JOHNSTONE: No
BENCH: The second - if you are feeling unwell, do not come to court. And so that’s as far as they get into the message.
SGT JOHNSTONE: Yeah. Yeah.
BENCH: You know, it’s ridiculous.
SGT JOHSTONE: So has he written to court – is he unwell?
BENCH: Yeah. Yeah. Yeah. Again. Application for ADJ refused. Bail forfeited, warrant issued. It’s gone nowhere since the matter has been before the court.”
- In the respondent’s written submissions, attention is drawn to subsections (1) and (2) of s 33 of the Bail Act 1980 and the onus placed upon the defendant to satisfy the Court of the defence provided by s 33(2). It is convenient to note the following provisions of s 33:
“33 Failure to appear in accordance with undertaking
- (1)A defendant who—
- (a)fails to surrender into custody in accordance with the defendant’s undertaking; and
- (b)is apprehended under a warrant issued pursuant to section 28 or 28A (1)(a), (b), (c) or (e);
commits an offence against this Act.
- (2)It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause—
- (a)for failing to surrender into custody in accordance with the defendant’s undertaking; and
- (b)for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable.
- (3)Proceedings for an offence against this section—
- (a)shall be instituted and taken, without the laying of a complaint;
- (b)shall be taken in accordance with the following procedures—
- (i)production to the court before which a defendant apprehended under a warrant issued under section 28 or 28A (1)(a), (b), (c) or (e) is brought of that warrant shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the undertaking and of the failure to surrender into custody and that the issue of the warrant was duly authorised by the decision or order of the court that issued the warrant;
- (ii)judicial notice shall be taken of the signature of the person who issued the warrant referred to in subparagraph (i) and that that person was duly authorised to issue the warrant.
(3A) Upon production to the court of the warrant the court shall then and there call on the defendant to prove why the defendant should not be convicted of an offence against this section.”
- That is particularly because of the circumstances that the warrant issued on 6 October 2020 is noted as having been executed on the defendant on 9 October 2020 at 2pm at Noosa. However, it may be noted that notwithstanding the terms of that warrant being “to apprehend the defendant and cause the defendant to be brought before a Magistrates Court to be dealt with according to law”, it was not until 3 November 2020 when the appellant was required to appear before the Court pursuant to a bail undertaking entered into at the Noosa Heads Police Station on 9 October 2020, in respect of a charge of failure to appear in accordance with an undertaking pursuant to s 33(1) of the Bail Act 1980 and what are otherwise aptly described in the respondent’s submissions as relatively minor drug related offences and upon which the appellant had been expected to appear on 6 October 2020.
- Although in the written submissions the respondent sought to support a conclusion that the appellant had not shown cause pursuant to s 33(2), it was in the course of the hearing, appropriately conceded that the essential problem was that he was not provided with any real opportunity to do so. Again, the proceedings as recorded on 3 November 2020 are relevantly brief and after the appellant, who then appeared without legal representation, was asked why he did not appear on 6 October, the matter proceeded as follows:
“DEFENDANT: My child was unwell and I hadn’t received the QP9 forms that I’ve been seeking.
BENCH: What did you do? What – can you read the facts of the execution?
SGT JOHNSTONE: There’s a QP9 for the fail to appear. In relation to the fail to appear, after the warrant was issued he – 2pm on the 9th October, police contacted the defendant by phone. He had then attended the station. He said he thought his solicitor was appearing on his behalf. No emergent reason for not attending.
SGT JOHNSTONE: Yes, your Honour. No pre [indistinct]
BENCH: You are unable to show cause why you didn’t appear. Okay. You just can’t say ---
DEFENDANT: Yes, my child was unwell. I couldn’t take her to the doctor.
BENCH: No, that’s not the point, see. We got that. Like we did – you didn’t appear. Okay. Didn’t appear. Did appear, did appear, didn’t appear.
DEFENDANT: I’ve only not ---
BENCH: It’s want you didn’t do after the event. You just assumed that someone was doing something for you and they weren’t. And police had to find you.
DEFENDANT: No, they ---
BENCH: Ring you and tell you that there was a warrant out.
DEFENDANT: That is wrong your Honour.
BENCH: That’s what the facts said.
DEFENDANT: I turned up to the police station, myself, and then while I was ---
BENCH: Read those facts again.
DEFENDANT: While I was waiting ---
BENCH: Read those facts again.
DEFENDANT: --- I had to leave ---
BENCH: Read those facts again.
SGT JOHNSTONE: Police, at 2pm on Friday the 9th of October. So the warrant was issued on the 6th of October. The police contacted the defendant by phone and subsequently he attended the Noosa Heads Police Station.
BENCH: That’s right.
DEFENDANT: Your Honour, I was at the police station. I had to leave for a moment for my child to attend the toilet and that’s when they [indistinct]”
The further transcription indicates that the Magistrate immediately proceeded to his decision, as follows:
“BENCH: You are unable to show cause; convicted and fined a sum of $300; referred to SPER for the fail to appear. Nothing since 2004 – not recorded. Now, let us get into the real reason you are here …”
The matter then proceeded to address the drug offences which were before the Court.
- Unsurprisingly in the circumstances, there is no explanation or reasons provided for the Magistrate’s conclusion. As noted in R v Kitson, a failure to give reasons that ought to have been given is at least problematic and may amount to an appealable error. Moreover and as further confirmed in that decision at -, the fundamental difficulty which arises is in respect of any opportunity that was given to the appellant to be heard, as noted in the following passage cited in Kitson at , from In re Hamilton; In re Forrest;
“One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.”
- Reference to the proceedings on 6 October 2020 is relevant to the application of s 33(2)(a) and potentially as to whether there is evidence to contradict the presumption expressed in s 33(3)(b)(i). In this instance, it would appear that there was nothing to suggest any invalidity in the exercise of discretion pursuant to s 28A of the Bail Act 1980, on 6 October 2020. However, that is only because of the order in refusal of an application to adjourn the proceedings in the absence of the appellant. As pointed out by the respondent, some context to that outcome and the reference to the text message by the Magistrate and as referred to both in the appellant’s ground of appeal and written submissions, is to be found in a document on the file in respect of the drug-related charges and which, by necessary implication, must have been before the magistrate on 6 October 2020.
- That is a document headed “TELEPHONE MESSAGE”. It purports to record telephone contact at 8.50am on 6 October 2020 by the appellant. The message is recorded as follows:
“Unable to attend today as he is unwell. Can matters be adjourned”.
The document contains five numbered paragraphs under the heading “WARNINGS”. Each of those paragraphs has a tick placed in a box adjacent to that paragraph. Relevantly, those five paragraphs are as follows:
“1. All defendant should be advised if they fail to appear at the time and date stated in accordance with their bail documents, notices to appear or attendance notices, a warrant may issue for their arrest and they could be charged with a breach of bail.
- If they are ‘ill’ they should obtain a medical certificate and come to court as soon as they can.
- If they cannot get to court for any reason they should come to court as soon as they can.
- If a person has to attend as a result of receiving a summons it should be ascertained what offence they have been charged with. They must appear if the charge is an indictable offence or drink driving. Generally only simple offences and regulatory offences may be dealt with in their absence. If they seek to have ‘no conviction recorded’ they should attend court.
- If a warrant has issued they should come to court as soon as they can regardless of what the police may have told them.” (emphasis as in original).
The efforts of the legal representatives of the respondent had not enabled any record of the text message to which reference is made and to which it may be inferred the recorded telephone contact of the appellant is responsive.
- It may be noted that the content of the recorded warnings, on the assumption that they were accurately relayed to the appellant, beg the question as to what was otherwise recorded as the appellant’s request for the adjournment of his matters, which was refused in his absence by the Magistrate. That is also made clear by understanding some broader context to the proceedings on 6 October 2020. The court file for the drug-related charges indicated that on 7 July 2020 the matters had been adjourned in the absence of the appellant to 14 July 2020, with a written notice of such adjournment (Form 20) directed to him. Although the record also indicates that orders were also made on that occasion to forfeit his bail undertaking and that a warrant for his arrest was issued, with execution postponed until the date of the adjournment on 14 July 2020. But the record also indicates that the defendant appeared on that date and the warrant was recalled and cancelled and he was granted bail upon a new undertaking. Thereafter there are recordings as to three further appearances prior to 6 October 2020. On each occasion, the appellant is recorded as appearing in person and with a legal representative. The file also contains a copy of an email sent by the appellant on 7 July 2020 which explains his request for that adjournment as also being related to illness concerns in the context of the “pandemic”.
- Whilst it may be observed that there is an appearance of pre-emptiveness in the refusal of the application for the adjournment, in this context, and as the basis for the issuance of the warrant for execution upon the appellant, three things may be observed. First, this appeal is not concerned directly in respect of the orders made on 6 October 2020. Secondly and pursuant to s 28A(2) of the Bail Act 1980, it was open to the appellant to avoid the consequences of execution of the warrant by surrendering into the custody of the Court as soon as was practical after the time appointed for his appearance there and to satisfy the Court that his failure to surrender in custody was due to a reasonable cause. Thirdly and when the matter came before the Court on 3 November 2020 and the defendant was placed in the position of confronting the requirements of s 33 of the Bail Act 1980, it is apparent that the Magistrate’s concern, as far as the application of s 33(2) was concerned, was in respect of sub-paragraph (b) rather than any reasonable cause for failing to surrender into custody in accordance with the undertaking pursuant to sub-paragraph (a).
- As appropriately conceded in this Court by the respondent, the defendant was given no real opportunity to address s 33(2)(b). The issue was pre-emptively determined against him upon the basis of an assertion read from the bar table by the prosecutor and notwithstanding that the defendant maintained a position that the assertion was not correct. In this Court, the appellant maintained the position, albeit by assertion in submissions rather than evidence, that he had gone to the police station upon being advised to do so upon enquiry made to the Court, advising him that the matter had not been adjourned and that he should do so, after allowing a couple of days for the warrant to be processed. Whilst in the context of the hearing in this Court, the respondent confirmed the position of the officer executing the warrant that he had telephoned the defendant to have him come to the police station for that purpose, it is otherwise to be noted that the appellant’s position does not challenge such a phone call but rather that it came after circumstances when he had earlier been at the police station to enquire about the warrant and had left during the period when enquiries were being made and to attend to the needs of a child. It is apparent that if this matter were to be litigated, as might be required upon evidence, it may be necessary to conduct broader enquiry than simply the involvement of the police officer who ultimately executed the warrant.
- It may be observed that in dealing with issues that may arise pursuant to s 33(2) of the Bail Act 1980, in many instances and particularly where the relevant facts are not in dispute, it may be permissible to act on the basis of assertions made in submissions. However and where, as was the case here, the basis upon which the Magistrate was minded to act, as submitted by the prosecution, was expressly put in issue by the defendant, there may be the need to allow an opportunity for the defendant to adduce evidence and an opportunity for evidence in response. At the very least in the circumstances, prudence might have indicated allowance of some opportunity for the defendant to seek to obtain some legal advice. As may be noted from the transcription of the proceedings on 3 November 2020, and once the Magistrate dealt with his findings as to the charge of failing to appear and turned to what he referred to as “the real reason you are here”, the difficulties then discussed by the defendant as to complications in respect of obtaining legal aid and a “QP9” led to the Magistrate standing the matter down to enable him to speak to a solicitor, who it emerges subsequently appeared on resumption of the matter to assist the Court, resulting in an adjournment of the proceedings and an enlargement of bail without the appellant actually being present in the Court, because as was identified “he has got a child with him as well”.
- Therefore and in accordance with the proper concession of the respondent and having regard to the powers of this Court pursuant to s 225 of the Justice Act 1886, it was appropriate to set aside the orders made on 3 November 2020 in respect of the charge of failing to appear in accordance with an undertaking. The circumstances of the hearing conducted in the Court below and the record of which was before this Court, did not allow for any further rehearing of the matter by this Court and appropriately the respondent did not press for and neither were the circumstances appropriate for an order effectively remitting the matter for rehearing in the Magistrates Court.
 2 Qd R 667 at .
 QCA 158 at .
Notice of appeal filed 4/01/2021, at p 1.
Appellant’s outline of argument filed 8/02/2021, at p 2.
See Form 16 warrant dated 6/10/19.
It may be noted that on 29/1/21 and when the prosecution offered no evidence on a charge of supplying the dangerous drug cannabis and upon the appellant’s guilty pleas to the four offences of possession and production of cannabis and possession of things that had been and were for use, in connection with the production of that dangerous drug, the appellant was fined $300, referred to SPER for collection, and no conviction was recorded.
 QCA 86 at -.
 AC 1038, at 1045.
- Published Case Name:
Clive v Commissioner of Police
- Shortened Case Name:
Clive v Commissioner of Police
 QDC 113
Long SC, DCJ
15 Jun 2021