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Wood v Commissioner of Police[2021] QDC 209

Wood v Commissioner of Police[2021] QDC 209

DISTRICT COURT OF QUEENSLAND

CITATION:

Wood v Commissioner of Police [2021] QDC 209

PARTIES:

IAN ANDREW WOOD

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

4276 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

6 September 2021

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 August 2020

JUDGE:

Sheridan DCJ

ORDER:

  1. Appeal dismissed.
  2. If either party wishes to make any submissions on costs, written submissions not exceeding four pages must be filed and served by 14 days from the date hereof. 

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where pursuant to s 474.17(1) of the Criminal Code Act 1995 (Cth) the Magistrate convicted the appellant of using a carriage service to menace, harass or cause offence – where the appellant appeals his conviction – whether Magistrate was in error

LEGISLATION:

Criminal Code Act 1995 (Cth), 474.17(1), s 475.1B

Justices Act 1886 (Qld), s 222, s 223

CASES:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited

Forrest v Commissioner of Police [2017] QCA 132, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

McDonald v Queensland Police Service [2018] 2 Qd R 612, [2017] QCA 255, cited

Monis v The Queen [2013] 249 CLR 92; [2013] HCA 4, applied

Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited

White v Commissioner of Police [2014] QCA 121, cited

COUNSEL:

Self-representation for the appellant

S Harburg for the respondent

SOLICITORS:

Director of Public Prosecution (Commonwealth) for the respondent

Introduction

  1. [1]
    The appellant appeals against the decision of Magistrate Merrin made on 30 October 2019.
  2. [2]
    By the decision, the Magistrate convicted the appellant under s 474.17(1) of the Criminal Code Act 1995 (Cth) (The Code) of using a carriage service to menace, harass or cause offence.  The particulars of the charge read as follows:

“That between the 16th day of December 2018 and 22nd day of January 2019 at Brisbane City and elsewhere in the State of Queensland one Ian Andrew Wood used a carriage service in such a way that reasonable persons would regard that use as being menacing, harassing or offensive, contrary to subsection 474.17(1) of the Criminal Code (Cth).”

  1. [3]
    Section 474.17(1) of the Code provides:

“(1)  A person is guilty of an offence if:

  1. (a)
    the person uses a carriage service; and
  2. (b)
    the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.”
  1. [4]
    The Magistrate ordered the appellant to be released upon giving a security by recognisance in the amount of $1000 with the appellant being made subject to a number of conditions including that the appellant be of good behaviour for two years and have no contact, either directly or indirectly, with the complainants.
  2. [5]
    The appellant now appeals his conviction.
  3. [6]
    As in the proceedings below, the appellant is self-represented and the respondent is represented by counsel.

 Nature of Appeal

  1. [7]
    The appeal is brought by the appellant pursuant to s 222 of the Justices Act 1886 (Qld).
  2. [8]
    Pursuant to s 223 of that Act, an appeal under s 222 is by way of rehearing on the original evidence, with any new evidence adduced only by leave. 
  3. [9]
    The rehearing requires this court to make its “own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”[1]
  4. [10]
    The process involves a “real review of the record of proceedings below, rather than a completely fresh hearing.”[2]
  5. [11]
    In such an appeal, the appellant must establish some “legal, factual or discretionary error.”[3]
  6. [12]
    The appellate court ought to pay due regard to the advantage that the magistrate had in observing a witness' tone and demeanour.[4]

Grounds of Appeal

  1. [13]
    Mr Wood appeals against his conviction on the following grounds:
  1. The verdict is unreasonable and cannot be supported having regard to the whole of the evidence;
  2. The evidence is insufficient to meet the test for the charge; and
  3. The Magistrate made errors in law by allowing inadmissible evidence and then using that evidence to make findings of fact.
  1. [14]
    The particulars of the second ground were stated to be that the appellant was “nothing more than a disgruntled client complaining about the lack of a service and that doesn’t constitute harassment.”
  2. [15]
    In his outline of argument, the appellant submitted that there was a miscarriage of justice for 16 reasons.  It is unnecessary to set all of them out because some of them are repetitive and are the same as the grounds of appeal.  Items (a) and (b) of the submissions are the same as the second ground of appeal.  Items (c) and (e) are the same as the first ground of appeal.  Items (f) to (m) attack the evidence of specific witnesses in support, presumably, of the first ground of appeal.  Item (o) was essentially the same as the third ground of appeal.  There were three extraneous items: item (d) alleged the Magistrate was biased, item (n) alleged that there were irregularities in the conduct of the trial and item (p) alleged that the appellant did not receive a fair trial because the Magistrate failed to adequately sum up the defence case.  Specific matters were relied upon for each argument and, in the end, were quite narrowly confined.
  3. [16]
    In order to deal with most of the reasons advanced in support of the appeal, it is necessary to set out the nature of the evidence presented before the Magistrate.

The Facts

  1. [17]
    The offending conduct is said to involve the appellant sending numerous menacing and harassing emails to the complainants, Mr Justin Sibley and Ms Kirsty Sibley, as well as menacing and harassing messages to Ms Sibley on her personal Facebook Messenger account. 
  2. [18]
    The complainants are husband and wife.  Mr Sibley is the principal of the law firm, Sibley Lawyers, and Ms Sibley was employed at the firm as the practice manager.  Ms Sibley was known at the firm by her maiden name, Kirsty Bassett.
  3. [19]
    Mr and Ms Sibley were called to give evidence in support of the prosecution case and, through them the emails and Facebook messages, alleged to have been sent by the appellant and which were alleged to be menacing and harassing, were put into evidence.  The police officer in charge of the investigation also gave evidence.
  4. [20]
    Mr Sibley gave evidence, which is not disputed, that he first met with the appellant in a client conference.  Whilst Mr Sibley initially said the conference occurred on 7 December 2018, in cross examination he accepted the conference was more likely on 4 December 2018.  In any event, the Client Agreement was executed by the appellant on 12 December 2018.  The amount of $3,300 was transferred on or about 26 December 2018 by the appellant into the firm’s trust account.
  5. [21]
    The Client Agreement defined the scope of work as “The work to be undertaken is to represent you in relation to your charge of Assault Occasioning Bodily Harm.” Indicative fees were listed and included the fact that a sentence would be conducted at a fee of $3,300 including GST for a solicitor to appear, a trial conducted at a rate of $3,300 per day plus preparation and any fees not included in the above to be charged at the rate of $550 including GST per hour.
  6. [22]
    The Client Agreement provided that the appellant would receive invoices by email.
  7. [23]
    The Client Agreement provided that, “This firm can terminate the agreement in circumstances where [the appellant] fail to provide instructions, or fail to deposit sufficient funds or are otherwise in breach [of] this agreement.”  The agreement provided that, “A breach will occur where [the appellant] place this firm in a position of ethical compromise or disregard our legal advice, fail to remain in contact or respond to our correspondence.”
  8. [24]
    Without limiting the circumstances in which the firm is otherwise entitled to terminate, the agreement set out in point form a number of specific circumstances when the firm could terminate the agreement and cease to act.  These included if the client acted in a manner which made it difficult for the firm to have a reasonable lawyer/client relationship, failed to accept advice or the client had indicated that they had lost confidence in the firm.
  9. [25]
    Except for the initial conference, the remainder of the communications between Mr Sibley and the appellant were via email.  Through December 2018, several emails were exchanged. 
  10. [26]
    It is not disputed that as part of the retainer, Mr Sibley was expected to appear in court representing the appellant at the mention of the matter on 9 January 2019.  Mr Sibley’s firm had not, as yet, been entered on the record as acting for the appellant.
  11. [27]
    On 30 December 2018 at 1.19 pm, an email was sent by Mr Sibley terminating the Client Agreement.  The email stated:

“I have decided not to represent you in your matters, and I terminate our agreement on the basis that you appear to have lost confidence in me, do not seem interested in my legal advice, and will make it unnecessarily difficult for me to represent you.” 

Mr Sibley referred to being concerned by the appellant’s correspondence that he would not allow him to do his job “without unwarranted criticism, and excessive direction.”  He referred to the appellant being “aggressive and condescending” in his correspondence.  He expressed concern that he was being used to undertake a review of the work of the appellant’s former solicitors and that the appellant was seeking to direct him to conduct himself in court in a way “that will be inconsistent with my obligations to act in your best interests, and may also create a conflict in my paramount duty to the Court.” 

  1. [28]
    In response to that email, the appellant sent a series of three emails on 30 December 2018 at 2.04 pm, 2.07 pm and 2.47 pm.  In his email sent at 2.04 pm the appellant stated:

“Please explain how you feel I’ve lost confidence in you.  Because I’ve asked you to explain yourself and you can’t?  That is NOT grounds for terminating a legally binding agreement mate. That’s right. We have a legally binding agreement, SIGNED AND PAID FOR, that you will represent me.  You fail to do that and I will sue you for breach of contract and negligence…” 

  1. [29]
    In the email at 2.07 pm, the appellant stated, “I’ll also sure [sic] you for fraud for taking my money then immediately trying to withdraw your advice.”  In the email at 2.47 pm, the appellant stated, “And I expect an answer on how you’ve come to the conclusion that I’ve lost confidence in you today.”
  2. [30]
    Mr Sibley responded by email at 3.15 pm where he stated:

“These threatening emails only confirm you have lost confidence in me.  It is patently absurd to suggest I have committed any negligence.

The circumstances I outlined are a breach by you and a basis for me to terminate.  I warned you not to correspond with me in that manner.  I am not obliged to continue to act for you no matter what the circumstances, and clearly these emails are further confirmation that the circumstances for termination exist. 

You haven’t paid for anything.  We hold funds in Trust.  You will be invoiced for work done and that will be taken from Trust and the balance refunded. 

I’m on holidays and having read and reflected on your emails, I have taken time out to give you as much notice as I can for you to find another lawyer.”

  1. [31]
    The appellant then responded with a further series of seven emails sent that day at 3.20 pm, 3.23 pm, 4.57 pm, 5.00 pm, 5:03 pm 5.10 pm and 6.53 pm, one email sent on 31 December 2018 at 7.54 pm and a further three emails sent on 1 January 2019 at 12.41 pm, 5.24 pm and 5.47 pm.
  2. [32]
    The first of that further series of emails sent at 3.20 pm stated:

“Mate my emails aren’t threatening at all.  They are a serious warning of what will happen if you continue to try what you’re attempting.  I have NOT lost confidence in you AT ALL.  I want to make that very clear.  If you think otherwise then you are very much mistaken.  I have asked you to explain yourself and you have failed to do so.  Not only that, you are trying to pretend your inability to explain is a loss of confidence on my part.  You will either answer the questions satisfactorily or do as you’re told.  You have no grounds for termination of the agreement.” 

  1. [33]
    In the email sent at 5.00 pm, being the fourth email that day, the appellant stated:

“The last thing George Brandis did before he became the attorney general of Australia was try and discredit me as a witness.  It went very badly for him.  In fact, I spent 5 years of my life handing him and whoever the other three queens clownsel [sic] lawyers were who worked with him on the Moxon timbers case what has to be one of the most humiliating defeats of their legal career.  Single handedly [sic].  That’s the calibre of lawyer I’m used to destroying.  Who are you again?”

  1. [34]
    The email sent at 6.53 pm confirmed that the appellant would see Mr Sibley in court on 9 January 2019 and stated, “You have your instructions.”
  2. [35]
    On 31 December 2018 at 7.54 am, the appellant ended the email by saying, “If you fail to show up in person on the 9th which is the primary reason your services were undertaken, you can consider your law firm toast.” 
  3. [36]
    On 1 January 2019 at 12.41 pm, the appellant sent a further email which stated:

“You have until tomorrow afternoon to either answer my questions or confirm you will be showing up and doing as you’ve been instructed and provide me with an account of where the trust fund is up to.  Failure to do so will result in a complaint being lodged with the lsc on Thursday on the basis of unsatisfactory professional conduct and professional misconduct.”

  1. [37]
    At 7.10 pm on 1 January 2019, Mr Sibley sent a further email to the appellant in which he again stated that the retainer is terminated and said that he would not be appearing for the appellant at court and that he would not be responding to any of his demands.  He stated, “I will not act for you and have given you amble opportunity to identify and retain another Solicitor.”  Mr Sibley went on to say, “Further, your emails are intimidating, menacing and harassing, and I request that you desist from engaging in this conduct.”
  2. [38]
    In the same email sent at 7.10 pm, Mr Sibley stated that he was prepared to have a final meeting with the appellant on Monday at 11.00 am, at which time he will hand the appellant back his discs.  Alternatively, Mr Sibley proposed that he would send the discs back to him by registered post.  The email then stated:

“Do not send me any further demands or threats. 

You are welcome to make a complaint to the LSC.  They can be contacted on 34067737.  Their website is www.lsc.qld.gov.au.”

The email requested that the appellant please confirm the conference on Monday, as Mr Sibley would not be in the office otherwise. 

  1. [39]
    The appellant sent three further responsive emails at 7.12 pm, 7.16 pm and 7.21 pm.  In the email sent at 7.16 pm, the appellant stated:

“And the contract isn’t just to for the aobh charge mate.  You’ve been looking at all 3.  Are you seriously going to try and pull that given the phenomenal amount of evidence I have to the contrary?  Why do you think I insist on getting everything in writing?  I even told you it was to protect myself against people like you, but, well, better men than you have been destroyed by their own hubris.”

  1. [40]
    At 7.21 pm, the appellant sent a further email which stated, “Oh, and next time your dad has lunch with the police prosecutor handling my case, tell him to say hi from me.”
  2. [41]
    Mr Sibley gave evidence of making contact with his father as soon as this email was received and of his concern when his father confirmed to him that he had in fact had lunch with a police prosecutor.
  3. [42]
    On 2 January 2019 at 9.55 am Mr Sibley sent an email attaching material that he had received from Robertson O'Gorman, the appellant’s former solicitors, in response to a request sent by Mr Sibley to that firm.  In response to that email, the appellant sent an email at 10.00 am which stated:

“Thought you weren’t acting as my counsel anymore mate. Obviously you’ve thought better of your appallingly bad decision.  Now answer the rest of my questions or confirm you’ll do as you’re told.  I’ve already contacted the lsc so you’d better pull your finger out if you don’t want me to go ahead with the complaint.”

  1. [43]
    An email at 10.08 am from the appellant to Mr Sibley stated, “I’ll give you till 11am.”
  2. [44]
    At 10.51 am, Mr Sibley responded by stating, “My request to Robertson O'Gorman predated my terminating the Client Agreement.  I confirm I do not act for you.”
  3. [45]
    The appellant then responded with two further emails on 2 January 2019.  The one sent at 10.55 am stated:

“Then why did you send it to me?  There’s a lot of things I’ve asked you that predate you ‘terminating the contract’ (I’ll reiterate here that you pretending the contract has been terminated means nothing cause you have no grounds you’re just making shit up) that you’ve failed to answer. Most notably ALL OF MY QUESTIONS. You have 6 minutes.”

  1. [46]
    In the next email at 11.00am, the appellant refers to the complaint to the Legal Services Commission (the LSC) and then states, “Don’t worry though.  I’m sure daddy will look after you.  I mean he’s the reason you are where you are right?”
  2. [47]
    On 3 January 2019, the appellant sent an email requesting a copy of the contract that he had signed.  At 4.32 pm on 3 January 2019, the appellant sent a further email requesting the contract in which he says:

“You are such a clown.  I don’t think even daddy will be able to help his precious little darling out of this one.  Well maybe.  Does anyone at the lsc owe him any favors [sic]?  Cause otherwise you’re screwed mate.  Have a pleasant day and I’ll see you on the 9th.  Failure to turn up will result in a charge being laid against you for failing to represent your client.”

  1. [48]
    Mr Sibley sent the appellant a copy of the Client Agreement, as requested on 4 January 2019 by email at 12.21 pm.  The appellant sent a response at 12.37 pm which simply stated, “Oops. Too late.”
  2. [49]
    Emails continued to be sent by the appellant to Mr Sibley with the appellant continuing to confirm that he expected Mr Sibley to appear at court on 9 January 2019, causing Mr Sibley to confirm by email on 7 January 2019 at 12:00 pm that he was not his counsel and that the Client Agreement had been terminated on 30 December 2018.  In that email Mr Sibley confirmed that he had arranged for the discs to be sent to the appellant by registered post to the appellants home address.
  3. [50]
    In the final email prior to the court appearance on 9 January 2019, the appellant requested from Mr Sibley an accurate record of the costs invoice. 
  4. [51]
    After that email, there is a gap in emails being exchanged between Mr Sibley and the appellant until an email sent by Mr Sibley to the appellant on Monday, 21 January 2019 at 9.05 am in which Mr Sibley referred to the email correspondence which had been received by Ms Bassett of his office (Ms Sibley) on Saturday, 19 January 2019 and a personal Facebook message sent to her.  In referring to the messages, Mr Sibley said:

“Both are personally threatening.  Ms Bassett has spoken to me about this, and given your threats to this firm, myself, Mr Robert Sibley of this firm, as well as now to Ms Bassett, I will be making a complaint to the Police of stalking and using a carriage service to menace and harass.  It will be a matter for Ms Bassett whether she makes a complaint to Police.” 

The email ended with, “You will today receive further material in relation to Trust funds. I urge you to desist engaging in further offences.”

  1. [52]
    At 9.06 am, the appellant sent an email which stated, “Go for it mate” and then at 9.07 am, “Also WHERE’S MY MONEY”.  A further email was sent at 9.12 am in which he states, “The fact that you think they were threats goes to show how good a lawyer you are.  Look forward to ‘hearing from the police’.”  The email then contains seven emojis.
  2. [53]
    There are further emails sent at 9.41 am in relation to the failure to refund the monies from the trust account.  At 9.57 am, Mr Sibley sends an email telling the appellant that the refund was processed yesterday and will appear in the account he provided.  Mr Sibley refers to the appellant’s appearance at the office that morning and says:

“You were aggressive.  You did not believe my reception staff who told you that I was not there, and have threatened to return throughout the day.  This follows me advising you that a complaint will be made to the Police about your conduct.” 

The email ended, “If you attend at my office again, the Police will be called.”

  1. [54]
    The appellant responded with an email sent at 10.05 am and stated:

“Your threats will be added to the lsc complaint as will your refusal to discuss the refund along with the excessive time taken to refund said monies.  Your contact [sic] clearly states the invoices can be paid out of trust immediately yet you took over two weeks to process it. You may look like a grown man but you’re obviously a child of limited intelligence. I’ve been told the refund had been processed but I’ll believe it when I see it. If you want to avoid people getting dirty with you mate, learn to do your job. And probably get off the coke.”

  1. [55]
    On 21 January 2019 at 10.09 am, Mr Sibley tells the appellant that the invoice he received was itemised, that quite considerably more time than three hours had been spent on his file and that the itemised account details the work done.  Mr Sibley suggests that the appellant take the matter up with the LSC and says that he will not be providing any further information to the appellant.
  2. [56]
    The appellant responds at 10.10am, “I want a break [down] of how the 3 hours was used mate.  Saying of [sic] we spent 3 hours means nothing. 3 hours on WHAT?”  At 10.11am, the appellant sent a further email stating, “You are to provide proof of how long was spent on what.”
  3. [57]
    In his evidence, Mr Sibley confirmed that the email address used for the appellant was the email address provided by the appellant to the firm, being an address [email protected].
  4. [58]
    The appellant did not dispute the emails sent from [email protected] were sent by him.  There was no suggestion that the emails were not intended to be sent.
  5. [59]
    Ms Sibley said she emailed the appellant to the address provided to the firm on 9 January 2019, enclosing his tax invoice and referring to the refund that he would be provided.  The email was sent from the email address [email protected] and was said to be from Kirsty Bassett, Practice Manager. The description on the invoice stated, “To our professional fees in respect of reviewing material, preparing, reading and responding to correspondence (3 hours)” with the amount stated as “$1,500.00” and the amount for GST as “$150.00.” The email stated:

“No action is required of you in respect of this invoice.  The invoice will be satisfied using funds that are already held in the Trust Account seven (7) days from today’s date.  Thank you.

After payment of the invoice, $1,650.00 will remain in trust.  These funds will be refunded in accordance with your written Trust Account Authority (dated 12 December 2018).”[5]

  1. [60]
    Ms Sibley received a responsive email from the appellant on Saturday, 19 January 2019 at 7.10 am when he emailed Ms Bassett saying, “Hey Kirsty, Where’s my money? If it’s not in my account in [sic] Tuesday I’ll be coming in to collect it from you personally.”
  2. [61]
    Ms Sibley’s evidence was that on Monday, 21 January 2019 at 8.34 am she also received a private Facebook message from an account titled, Ian Wood.  The Facebook message received by Ms Sibley stated, “Where’s my money Kirsty?” That private message was sent twice.
  3. [62]
    Ms Sibley gave evidence that she thought the message was from the appellant and that the message was following up on his email sent on Saturday morning about the refund.  In cross examination, she gave evidence that on the Facebook page of the person who sent the message there were landscaping photos and she said that the appellant was a landscaper.  The appellant did not challenge her evidence.
  4. [63]
    Ms Sibley gave evidence that over the weekend she attended the office and processed the refund payment from the trust account to the appellant.
  5. [64]
    Following the private Facebook message at 8.34 am, a further Facebook message was received at 9.03 am stating, “Nice photos of you, Justin and your baby by the way.”
  6. [65]
    Objection was taken by the appellant to the admission of the Facebook messages.  The appellant submitted that there was no evidence as to whose account the message was sent from and no metadata to back up the fact that it was actually the appellant’s account.
  7. [66]
    The Magistrate allowed the Facebook messages to be admitted but in allowing the admission recognised that Ms Sibley could not give evidence as to whose account the messages had been received.
  8. [67]
    Ms Sibley gave evidence that following the receipt of the private Facebook message referring to photos of her family, she felt threatened and alarmed.  She said the sender was making a comment on her family and that she rang her husband straightaway.
  9. [68]
    At 9.21 am on Monday, 21 January 2019, a further email was received by Ms Sibley from the appellant stating that he would require an itemised invoice for how Mr Sibley had arrived at the bulk total of three hours spent on the case.  He stated that this “should be able to be provided immediately.”
  10. [69]
    Ms Sibley responded with an email at 9.49 am, in which she attached the trust account statement and noted that the refund had been processed.  She said she had forwarded the earlier email regarding the tax invoice to Mr Sibley and said, “Please communicate with Mr Sibley from this time forward.”
  11. [70]
    When asked in cross-examination as to why she requested that he communicate with Mr Sibley from this time forward, Ms Sibley said that she felt the appellant was making personal threats and that she did not wish to keep the lines of communication open with him.
  12. [71]
    Despite that email, the appellant sent three further emails that day to Ms Sibley. In the first of those emails, the appellant stated:

“Thanks for that.  Can’t help but feel if you’d done it when you were supposed to I wouldn’t have had to chase you up.  Assuming the money comes in on Wednesday (first payment usually takes longer) we’ll never have anything to do with each other ever again. Here’s hoping eh?”

  1. [72]
    In the next email, sent at 10.09am, the appellant stated:

“Further to my previous email, should the back [sic] down of costs isn’t supplied by this afternoon I’ll have to keep contacting you.  Whether or not this happens is entirely up to you.”

  1. [73]
    At 5.01 pm, the appellant sent a further email stating,

“Can’t help but notice it’s 5pm and you failed to provide a breakdown of costs.  If I have to hunt you down and so we have this conversation in person I will.  I’d really rather have it via email so I don’t have to waste my time but I’ll leave the final decision up to you. Look forward to hearing from you shortly.” (Emphasis added)

  1. [74]
    At 6.16 pm, Ms Sibley gave evidence of receiving a further email. The email stated, “Why do people always have to do things the hard way? Look forward to meeting you in person Kirsty. I really do.”  The appellant disputed sending this email.  The email was sent from a different email address, [email protected].  The name on the email address was Ian Wood.
  2. [75]
    Ms Sibley said that she felt threatened by the words in the email, “hunt you down.”
  3. [76]
    In cross-examination by the appellant, Ms Sibley accepted that the appellant would not have had to contact her about payment if the payment had been made on 16 January 2019.
  4. [77]
    Ms Sibley gave evidence that as a result of the actions of the appellant, she had her name removed from the electoral roll.

Magistrate’s Decision

  1. [78]
    In giving her decision, the Magistrate referred to extracts from some of the emails detailed above.  The Magistrate noted that it was the email exchanges between the appellant and Mr Sibley from 30 December 2018, the date on which Mr Sibley terminated the Client Agreement, which were relied upon by the prosecution.  She said that Mr Sibley explained that the sending of that email over the holiday period was to allow the appellant sufficient time to engage new solicitors.  The Magistrate said that the content of those email exchanges is not in dispute
  2. [79]
    The Magistrate commented that the nature of the emails and the language by the appellant in the emails “can be seen to be quite demanding.”  The Magistrate referred to the email from the appellant referring to lunch between Mr Sibley’s father and a police prosecutor and to Mr Sibley’s evidence as to the impact that email had on him. 
  3. [80]
    The Magistrate referred to the further emails threatening to report Mr Sibley to the LSC and to take action against him, stating that the appellant was “inferring that he would destroy him, as he had other solicitors in the past.”
  4. [81]
    The Magistrate referred to the email sent by Ms Sibley (Ms Bassett) enclosing the tax invoice, in the form as she had been instructed by Mr Sibley and to the email received from the appellant in response. That email was sent by the appellant on Saturday, 19 January at 7.10 am. 
  5. [82]
    The Magistrate then referred to the Facebook messages received by Ms Sibley from a Facebook account with a profile name Ian Wood.  The Magistrate said that the appellant disputed that the Facebook messages were sent by him and the appellant said that the court could not be satisfied beyond reasonable doubt that they were sent by him.
  6. [83]
    The Magistrate noted that there was no direct evidence that the profile belonged to the appellant.  She said that the prosecution argued that there was circumstantial evidence supporting a finding that they were sent by the appellant.  The Magistrate said that, in making that assessment, it was necessary that she look at the messages in the context of the previous and subsequent emails.  The Magistrate referred to the words used in the Facebook message, “Where’s my money Kirsty” and the words used in the email, ‘Where’s my money.”  She referred to the enquiry being made as to the refund of the trust monies.  She also said that the Facebook messages were sent at a time proximate to the other undisputed emails.  She observed that the profile name was Ian Wood and the appellant’s name was Ian Andrew Wood.  The Magistrate concluded, “I am satisfied based on those particular circumstances that the only inference to be drawn is that those messages came from the [appellant],” including the message, “Nice photos of you, Justin and your baby, by the way.”
  7. [84]
    The Magistrate concluded that for the same reasons, she was satisfied beyond reasonable doubt that the email sent to Ms Sibley on 21 January 2019 at 6.16 pm was sent by the appellant.  The Magistrate referred to the consistency in its theme, the content of the previous emails and the fact that both email addresses used the word “afro” as part of the email address.
  8. [85]
    The Magistrate noted that the emails between the appellant and Mr Sibley prior to that date did not form part of the prosecution case.  She commented that in those emails the appellant had advised Mr Sibley of his dissatisfaction with his previous lawyers and that the case and evidence had been discussed in those emails.  The Magistrate observed that the arresting officer and Mr Sibley had explained as to why those emails were not provided as they referred to material which related to the appellant’s defence to his charge and prospects at trial and there was concern on Mr Sibley’s part in disclosing that material to the police and the prosecution.
  9. [86]
    The Magistrate referred to the series of emails which the appellant produced between himself and Mr Sibley on 16 and 17 December 2018.
  10. [87]
    The Magistrate identified the matters of which she had to be satisfied of beyond reasonable doubt in order to convict the appellant of the charges.  She identified the first of those elements being that the appellant had used a carriage service with the physical element relating to the conduct of using the service and the element of fault being that the appellant intentionally used the service.  The second element identified by the Magistrate was that a reasonable person would regard the use of the service as being menacing, harassing or offensive with the fault element being one of recklessness.  The Magistrate identified that she had to be satisfied beyond reasonable doubt of each of the physical elements and the attendant fault element.
  11. [88]
    The Magistrate referred to the discussion as to the meaning of the words, “menacing, harassing and offensive” in Monis v The Queen.[6]  The Magistrate referred to the meaning given to the words, “menacing” and “harassing” as “implying a serious potential effect upon an addressee, one which causes apprehension, if not fear, for that person’s safety.”
  12. [89]
    The Magistrate, consistent with the decision in Monis, identified the test as being an objective but qualitative criterion of criminal liability.
  13. [90]
    The Magistrate said that she had to consider the fault element of recklessness.  The Magistrate referred to the 46 emails sent by the appellant to Mr and Ms Sibley, as well as the private Facebook messages to Ms Sibley. 
  14. [91]
    The Magistrate referred to the submissions on behalf of the prosecution; it being submitted that what the communications represent is a “sustained and persistent campaign of intimidation” by the appellant.  It was submitted that the words were “carefully chosen to deliberately intimidate the complainants” and that the appellant “intended the messages to be menacing or harassing,” or at the least, the appellant was reckless in relation to the fault element.
  15. [92]
    The Magistrate referred to the appellant’s submission that his behaviour needed to be considered in context.  The appellant referred to the contact which had occurred in the two and a half weeks prior to the impugned contact, the fact of the email of 9 January 2019 stating that the balance would be paid on seven days from that date and when it was not paid he sent the email of 19 January 2019.  The appellant said that he had never contacted Ms Sibley until she contacted him via email on 9 January 2019 and that he has not contacted her since the money was refunded.  He said that simply asking for money to be refunded is not harassment; he said it was simply a valid request for an explanation of where his money was.
  16. [93]
    The Magistrate referred to the appellant’s submissions that Mr Sibley’s behaviour, as a criminal lawyer, was disturbing and said the average person would find Mr Sibley’s behaviour unacceptable.  He said that Mr Sibley was not permitted to terminate the Client Agreement.  He said that Mr Sibley had conducted himself in breach of the Client Agreement, was in contravention of his professional responsibilities and provisions of the Legal Profession Act 2007 (Qld). The appellant urged the court to make such a finding and that such conduct needed to be considered in assessing whether his conduct was menacing or harassing.  The appellant said there was a lack of evidence as to the assertion by Mr Sibley as to the appellant’s conduct prior to 30 December 2018 and that meant there was no true context to the impugned emails from 30 December 2018 onwards.
  17. [94]
    The Magistrate found that the prosecution did not seek to rely upon the emails prior to 30 December 2018.  The Magistrate said, in any event, the appellant had provided some emails sent between him and Mr Sibley on 16 and 17 December 2018 which, the Magistrate said provided some context as to how they communicated.  The Magistrate found, however, that she did not accept that such emails prior to 30 December 2018 were evidence necessary to properly consider the charge.
  18. [95]
    The Magistrate declined to make any finding as to the conduct of Mr Sibley.  She said, “Firstly, because it is not necessary to do so and, secondly, because I can see no evidence that would support the [appellant’s] assertions.”
  19. [96]
    She said that Mr Sibley’s email of 30 December 2018, had set out a number of well-reasoned explanations for the decision he made.  She found the explanations provided by Mr Sibley in the course of his evidence as supportive of the particular decision.  She referred to Mr Sibley having sent a particular email on 30 December 2018, despite it being a holiday period, to ensure that the appellant had an opportunity to engage other solicitors.  She found that reference to the emails of 16 and 17 December 2018 was supportive of Mr Sibley’s decision on 30 December 2018 and consistent with his concerns that the appellant had lost confidence in him and lawyers generally and was potentially using Mr Sibley’s advice in some sort of action against his previous solicitors.
  20. [97]
    The Magistrate found that it was the emails sent from 30 December 2018, some 46 emails in all, and the private Facebook messages sent to Ms Sibley, that are the relevant communications and provide the context in which this charge is to be considered.  The Magistrate found that the appellant’s emails were persistent in number.  She referred to the ones sent on 30 December 2018 which she described as “demanding and unreasonable in nature, seemingly to coerce or direct Mr Sibley to behave in a particular manner.”  The Magistrate found that when Mr Sibley indicated that he would not do so, the appellant then indicated he would make complaints about Mr Sibley and inferred he would destroy him as a lawyer.
  21. [98]
    The Magistrate found that the appellant may well have been justified in feeling dissatisfied and frustrated with Mr Sibley’s termination of the Client Agreement but found that the appellant’s responses were not in any way proportionate.  The Magistrate commented that his responses, both in content and number, could not be seen to be an appropriate response, but said that was not the test.  She said there must be an “objective and qualitative assessment that a reasonable person would regard the use of the carriage service as being menacing, harassing or offensive.”
  22. [99]
    The Magistrate referred to the reference to Mr Sibley’s father having lunch with a police prosecutor and found that to be unnecessary and would have invoked, in any reasonable person, concerns for their family members and for themselves, particularly when considered in the context of the earlier emails, noting that in an earlier email the appellant had been told by Mr Sibley that his previous emails were considered to be “intimidating, menacing and harassing”.
  23. [100]
    The Magistrate said the demands and unreasonable requests persisted over days but again recommenced and escalated with the email sent by the appellant on 19 January 2019 and then, when no response was received, the appellant searched and used Ms Sibley’s private Facebook account instead of the usual avenue of communication.
  24. [101]
    The Magistrate referred to the demands made for the money but relevantly the reference to photos of her and her family.  That was followed by use of words like “hunt you down” and “look forward to meeting you in person.”  The Magistrate found, in the context of all these emails and messages, particularly the references to other family, would cause any reasonable person to feel intimidated, to feel concern for their safety and to feel threatened; that is, they would hold some sort of fear or apprehension.
  25. [102]
    Objectively, the Magistrate concluded that the messages were menacing or harassing.  The Magistrate found that she was satisfied beyond reasonable doubt.
  26. [103]
    In terms of the fault element, the Magistrate said it was open to find that the appellant intended to menace or harass Mr and Ms Sibley finding, “such was the nature of the content, the persistence of and the intimidation, the inferred threat to family members or, at least, family privacy would have.”  The Magistrate said, in her view, the emails cannot have been designed to convince Mr Sibley to continue to represent him, nor simply to request the refund of the trust funds.  The Magistrate found the emails conveyed “a more sinister motivation.”  The Magistrate found that the fault element of intention was established beyond reasonable doubt.
  27. [104]
    The Magistrate further found, that if she were wrong about that, she was satisfied beyond reasonable doubt that the appellant was at least reckless as to the particular circumstances.  The appellant had been told in late December that the emails were considered to be “intimidating, menacing or harassing.”  The Magistrate said that was not necessarily conclusive, but the appellant had been warned and given the nature of the communications, the appellant must have known there was a substantial risk that the communications would be considered menacing or harassing.  The Magistrate found it was unjustifiable for the appellant to take that risk and it was in the subsequent conversations that he went on to refer to Mr Sibley’s family members, including his baby.  The Magistrate found that the fault element of recklessness was established beyond reasonable doubt.
  28. [105]
    Having been so satisfied, the Magistrate found the appellant guilty.

Issues on Appeal  

Submissions (a), (b) and (d) – All the evidence within the dates of the charge

  1. [106]
    The focus of the appellant’s submissions, relating to the evidence being insufficient to meet the test for the charge and that there was error in applying the test, was that the Magistrate failed to have regard to all of the evidence within the dates of the charge.  The failure was also the foundation for submission (d), that the Magistrate was biased.
  2. [107]
    The appellant submitted, referring to the decision in Monis,[7] that a reasonably tolerant person looking at the email exchange would have been aware that there was a contractual issue and that the pursuing conversations were nothing more than an attempt to get Mr Sibley to perform the contract.  The appellant submitted that the Magistrate ought to have had regard to all of the emails exchanged within the dates of the charge, and in particular to the emails exchanged between 16 December and 30 December 2018.  The appellant submitted that the surrounding circumstances were an intrinsic part of the test. The appellant submitted that as the Magistrate had no evidence from the first two weeks of the charge and that, as they were not relied upon in her findings, the test was not appropriately undertaken.  The appellant submitted that if the Magistrate had done that, the conversations were not something that a reasonably tolerant person would find menacing or harassing.
  3. [108]
    During the hearing of the appeal the appellant sought to tender two additional emails that he said, from the bar table, had passed between him and Mr Sibley on 17 December 2018.  Some emails exchanged earlier than 30 December 2018 were tendered by the appellant through Mr Sibley during the course of his evidence, but these additional emails were not.  When the appellant sought to tender them through the police officer, the police officer answered that he could not identify them. The Magistrate refused to admit them into evidence.  At the hearing before me, the prosecution objected to the tender by the appellant on the basis of relevance and also on the basis that the Magistrate had properly upheld the objection since the emails could not be identified by the witness through whom it was sought to be put.
  4. [109]
    The last basis for objection is obviously good in a formal sense. It was, however, never in issue that a series of emails passed between the appellant and Mr Sibley.  Moreover, the appellant was self-represented and says he did not understand at the time that he could not put the emails through the police officer given that the email addresses were the same as the other emails tendered.  It is understandable that the police officer could not identify the emails.  As far as formal proof is concerned, however, it might readily be inferred that the emails are what they purport to be; namely emails between Mr Sibley and the appellant.  The issue is whether they are relevant, and, if so, whether they change the ultimate verdict.
  5. [110]
    In the first of the emails, Mr Sibley discusses the circumstances of the retainer and deals at length with the charges against the appellant.  In that email, Mr Sibley apologises for not responding earlier to the numerous emails sent by the appellant that day, and said that he did not appreciate the suggestion that he needed to put all correspondence in writing, with the implication being that he was avoiding an evidence trail.
  6. [111]
    The appellant responds with his own view of the circumstances in which he retained Mr Sibley and was strident in his view about that matter and how he would treat Mr Sibley.  He referred to Mr Sibley asking for a meeting when “it seemed and [sic] email would have been more sufficient.”  The appellant also discusses his charges, saying that he would be pleading not guilty to the assault charge and the reasons for that plea.
  7. [112]
    It is unclear how the email or its contents could be said to neutralise the facts of the emails sent after the retainer was terminated.  On one view the email would reinforce why Mr Sibley chose to end the retainer.
  8. [113]
    The evidence given in the court below did not traverse all of the communications and events from the commencement of the retainer to its termination and the aftermath, but it covered considerable ground.  It was sufficient to give context and meaning to the communications, establishing the fact of them, and the reasons for them.  These emails fall into a similar category and will be admitted into evidence in this appeal and marked as an exhibit.  Whether the admission of them makes any difference to the result is another question.
  9. [114]
    In Monis, the Chief Justice when dealing with an analogue provision as the one in question, in referring to the requirement relating to what a reasonable person would regard as offensive, held that it imported an objective but qualitative criterion of criminal liability.
  10. [115]
    There was no specific discussion in that case about the use of surrounding circumstances or context; nor did the appellant point to any discussions, or any other authorities, for that submission. 
  1. [116]
    The critical matter is the communications themselves, whether they were menacing, harassing or offensive.  In Monis, Crennan, Kiefel and Bell JJ held:

“The words ‘menacing’ and ‘harassing’ imply a serious potential effect upon the addressee, one which causes apprehension, if not a fear, for that person’s safety. For consistency, to be ‘offensive’, a communication must be likely to have a serious effect upon the emotional well-being of an addressee.”[8]

  1. [117]
    The communications were made in the context, as the appellant submitted, of his disputing that Mr Sibley was entitled to terminate his retainer and about the re-payment of monies paid into trust, but clearly degenerated into harassing and threatening correspondence from the appellant which had the necessary quality for a conviction under the section.  Those qualities of the communications were clearly set out in the decision of the Magistrate and support the conviction.  The Magistrate appropriately viewed the communications in an objective sense; not having regard to the evidence of the complainants as to the impact of the communications on them personally.
  2. [118]
    Allowing the additional emails into evidence does not alter that conclusion.

Submissions (a) and (b) - Recklessness

  1. [119]
    Further, it was submitted by the appellant that the test for recklessness had not been undertaken appropriately.  It was said that the Magistrate should not have been able to find that there was an unjustified risk. 
  2. [120]
    It is unclear what the first part of this submission is addressing, but the Magistrate clearly dealt with the issue of recklessness.
  3. [121]
    The Magistrate referred to the two elements of the charge. The first being that the appellant used a carriage service, with the fault element being one of intention.  The second element was that the appellant’s use of the carriage service was menacing, harassing or offensive.  The Magistrate referred originally to the fault element being recklessness, but later dealt with, as invited by the prosecution, intention.
  4. [122]
    Her Honour referred to s 5.4 of the Code dealing with reckless, which provided as follows:

“A person is reckless with respect to a circumstance if:

  1. (a)
    he or she is aware of a substantial risk that the circumstance exists or will exist; and
  2. (b)
    having regard to the circumstances known to him or her, it is unjustifiable to take that risk.”
  1. [123]
    With one exception, there was no dispute that the emails involved the use of a carriage service, the first element of the offence, or the fault element which accompanied it, namely that it was intentional conduct.  The Magistrate found that she was satisfied beyond reasonable doubt that the appellant had sent the emails and that the appellant intended to do so.
  2. [124]
    The Magistrate found the physical element of the second element proven; namely that the messages were menacing, harassing or offensive.
  3. [125]
    The Magistrate concluded that the fault element of intention was established, but also held that is she was wrong about that, then the appellant was at least reckless.  Her Honour held that the appellant was aware of this particular circumstance; particularly given that he had been warned by Mr Sibley that the emails the appellant sent were intimidating, menacing or harassing.  Her Honour held, particularly after the warnings by Mr Sibley, that it was unjustifiable for the appellant to take that risk.  Her Honour was justified in reaching that conclusion.

Submissions (c), (e) and (o) – Facebook Messages & Email sent 21 January at 6.16 pm

  1. [126]
    In support of paragraphs (c), (e) and (o) of the submissions, that the verdict was unsafe and not supported by the evidence and that the Magistrate erred in allowing evidence which had no evidentiary value, the appellant partly relied upon the finding that the Facebook messages and the one email sent from a different account could be attributed to him and the finding of guilt in reliance on them.  The appellant, in oral submissions, relied upon the absence of metadata in the form of an IP address to prove that the messages did not come from him.
  2. [127]
    There was no metadata or admissions about the Facebook messages and one of the emails.  The Magistrate found in effect, however, that the circumstantial evidence was sufficient to enable her to conclude beyond reasonable doubt that the messages did originate from the appellant.
  3. [128]
    In the email sent on 9 January 2019 enclosing the invoice, Ms Sibley had said that there was no action required of the appellant in respect of the invoice and that the invoice would be satisfied using funds already in the trust account within seven days of that date.  It continued that, after payment of the invoice, the remaining funds would be refunded in accordance with the trust account authority.  The email was signed by her as Kirsty Bassett, Practice Manager.
  4. [129]
    During his cross-examination of Ms Sibley, the appellant made it clear that he took the email to mean that he would have his payment within seven days and during the course of the cross-examination, Ms Sibley agreed with the suggestion that the appellant would not have had to contact her about payment if it had been done on 16 January 2019.
  5. [130]
    In any event, Ms Sibley received a responsive email on Saturday, 19 January 2019 asking, “Where’s my money?” but adding, “If it’s not in my account Tuesday I’ll be coming in to collect it from you personally.”
  6. [131]
    On Monday, 21 January at 8.34 am Ms Sibley received a message on her Facebook account stating the same thing twice, “Where’s my money Kirsty?”  The messenger was entitled Ian Wood.  During cross-examination by the appellant, Ms Sibley gave evidence that she saw landscaping photographs on the Facebook page of the person who sent her a message and that the appellant was a landscaper.  The appellant did not challenge that evidence, but asked Ms Sibley whether she had been stalking him.
  7. [132]
    At 9.03 am that day Ms Sibley received a further Facebook message stating, “Nice photos of you, Justin and your baby by the way”.
  8. [133]
    On Monday, 21 January 2019 at 9.05 am Mr Sibley sent an email to the appellant which referred to the “correspondence you sent on Saturday to [email protected], and a personal Facebook message that you sent her” and saying that both were “personally threatening”.  Mr Sibley said in the email that he would be making a complaint to the police.
  9. [134]
    At 9.06 am that day, the appellant sent an email in response to Mr Sibley which stated, “Go for it mate”, then at 9.07 am that day the appellant sent an email to Mr Sibley asking, “Also WHERE’S MY MONEY,” then another one at 9.12 am which stated, “The fact that you think they were threats goes to show how good a lawyer you are” and said he was looking forward to “hearing from the police.”  At 9.41 am the appellant sent a further email that said, “Hahaha you are pathetic mate”, and said that his refusal to refund his money or speak to him would be added to the legal services complaint.
  10. [135]
    At 9.49 am Ms Sibley sent an email to the appellant noting that the refund had been processed.  At 9.54 am the appellant wrote an email in response addressed, “Hey Kirsty” and saying that he could not help but feel that if she had done it when she was supposed to he would not have had to “chase her up.”  The appellant wrote two further emails at 10.09 am and 5.01 pm with respect to his request for a break down in costs.  In the last email the appellant said that, “If I have to hunt you down and so we have this conversation in person I will”.
  11. [136]
    A final email was sent at 6.16 pm from an email account [email protected]     with the name in the address said to be Ian Wood.  The email asks, “Why do people have to do things the hard way?”  The email then states, “Look forward to meeting you in person Kirsty. I really do.”
  12. [137]
    There are several matters to note about these facts.  In relation to the Facebook messages, the first is the similarity in the demand for money in the admitted emails and the Facebook messages, “Where’s my money.” Secondly and related to that,  the clear indication in the Facebook message and the emails, consistent with his cross-examination, is the appellant’s view that the payment should have been made earlier; with the corollary that the appellant has widened the scope of his annoyance from emails to Facebook.  The third was that the Facebook messages were sent at a time proximate to the other emails.  The fourth is the resemblance in the account name to the appellant’s email name and to his full name, Ian Andrew Wood.  The fifth is that many of the appellant’s emails are signed, “Ian Wood, A & I LandArt and Maintenance”; consistent with him being a landscaper or, as he told me, “a gardener, not a lawyer.”  The sixth is the personalisation, by the use of the word “Kirsty,” at the end of the first Facebook message and the commencement of the email sent at 9.54 am.  Finally, there is the absence of any denial in the emails sent at 9.06 am, 9.07 am, 9.12 am and 9.41 am to Mr Sibley, in response to Mr Sibley’s email which referred to the threats made by email and Facebook, that he had sent anything by Facebook.
  13. [138]
    The evidence is sufficient to conclude beyond reasonable doubt that the Facebook messages came from the appellant and were sent by the appellant with the necessary fault element.
  14. [139]
    In relation to the email sent from the Hotmail account; firstly there is the use in the address of the word “afro” which was used in the address of the admitted emails, secondly there is a similarity in the language used in the admitted emails and this email, thirdly there is the reference in the address to the name Ian Wood and finally, the email was sent at a time proximate to the other communications, being the last of the communications sent on 21 January 2019.
  15. [140]
    The evidence is sufficient to conclude beyond reasonable doubt that the email came from the appellant and was sent by the appellant with the necessary fault element.
  16. [141]
    Even if the Magistrate or I am wrong in this respect, the offence with which the appellant was charged was a continuing offence with reliance being placed upon a very significant number of emails all containing strong language.  Although in support of subparagraph (o) of his submissions on appeal, the appellant also says that none of the emails had been certified as being true copies and that there were said to be issues with the compilation, no issue was taken either in this court or below with the prosecution case that the emails (sent from [email protected]) originated from the appellant.  Indeed, the appellant in this appeal sought to add a further email from the same email address to the evidence.  These emails were more than sufficient to prove the charge.

Submissions (e) - Test

  1. [142]
    Apart from relying on the Facebook issue, the appellant submitted that the verdict was not supported by the evidence in general.  The appellant submitted that the evidence does not support a finding that a reasonably tolerant person would find the correspondence to be menacing or harassing.
  2. [143]
    This submission has already been dealt with. The contents of the communications would have been menacing or harassing to a reasonable person. 
  3. [144]
    The appellant submitted that the evidence of Mr and Ms Sibley, that they found the material to be menacing or harassing, was immaterial to the application of the test.
  4. [145]
    This is true and it was not contended otherwise by the prosecution. The Magistrate applied an objective test to determine the guilt or otherwise of the appellant.  There is no error in this respect.

Submissions (f) - (m) - Witnesses

  1. [146]
    As part of his submissions on this subject, the appellant complained that the Magistrate relied on the repeated misleading and fraudulent statements by the witnesses and that they perjured themselves under oath.
  2. [147]
    In developing the submissions, the appellant relied upon a number of matters.
    1. (1)
      What was described by Mr and Ms Sibley as an itemised invoice, was in fact a bulk invoice and that this was a breach of the Legal Profession Act 2007 (Qld);
    2. (2)
      That the statement by Mr Sibley that he believed the conference was on 7 December 2018 was wrong when an email proves it was on 4 December 2018;
    3. (3)
      That the contract was terminated in breach of the client agreement and immediately after payment was made in full to Sibley Lawyers; and
    4. (4)
      That the evidence of the officer in charge indicated that the case had not been properly investigated, given that the officer had failed to request or obtain any evidence of the statements made by Mr Sibley in relation to the appellant’s behaviour prior to 30 December 2018.
  3. [148]
    None of these matters demonstrate that the witnesses gave misleading, let alone fraudulent, evidence.
  4. [149]
    As to the first matter, the invoice has only a few entries. It was a relatively small entry.  Mr Sibley gave evidence that it was an itemised invoice.  That was the only evidence on the subject.   It has not been demonstrated that it was not an itemised invoice for the purposes of the act; though nor would such a finding alter the outcome of this appeal.
  5. [150]
    As to the second matter, witnesses notoriously make mistakes as to dates and the date is immaterial in any event.
  6. [151]
    As to the third matter, Mr Sibley said that he could no longer act for the appellant and terminated his retainer because he considered that the appellant had lost confidence in him.  Having considered the evidence, there is no reason to consider that Mr Sibley was not entitled to withdraw from the retainer.
  7. [152]
    As to the fourth matter, I accept that events prior to the transmission of the emails the subject of the charge are relevant to establish the circumstances leading to the communications.  The absence of some of them, presumably now corrected by the admission of the further emails of 17 December 2018, is incapable of demonstrating that the case had not been properly investigated, or that, even if it was not, any miscarriage of justice occurred.
  8. [153]
    The critical aspect of the charge were the transmission of the emails the subject of the charge and whether they could be said to have the character alleged.  None of these matters affects that central issue.
  9. [154]
    There is no basis to disturb the verdict on any of these grounds.

Submission (n) - Irregularities

  1. [155]
    The appellant submitted in paragraph (n) that there were six irregularities in the course of the trial.  They can be dealt with shortly.
  2. [156]
    The first submission made was that a number of times the objections were discussed with the witness in the courtroom, tainting their evidence.  On occasions, objections to evidence are dealt with in the absence of a witness.  This may occur when the court has a basis to consider that the discussion might cause a witness to change their evidence.  On most occasions, objections can be dealt with quickly and efficiently in the presence of the witness.  It would be unusual to send a witness out of the court room merely because objection was taken to a particular aspect of their evidence.
  3. [157]
    In this case, the appellant did not point to any particular instance where the discussion influenced the evidence of a witness.  Further, the transcript reveals that on many occasions the witnesses were sent outside when an objection was raised.  There is no basis for complaint.
  4. [158]
    The second submission made was that both Mr Sibley and the police officer brought their own copies of statements into the witness box.  That is correct but there was no suggestion that the statements influenced their evidence.  There is no basis for complaint.
  5. [159]
    The third submission was that new evidence was tendered which was uncorroborated. The document in question consisted of a two page email sent by Mr Sibley to the appellant.  Only the first page had been provided to the appellant.  It was that part of the email which contained the critical matter for the prosecution.  At trial the full document was tendered and admitted.  There is no suggestion that the appellant had not seen the full email earlier.  There is no basis for the complaint.
  6. [160]
    The fourth submission was that interruptions by the Magistrate of the appellant’s cross examination was said to have impacted his manner of questioning.  The transcript shows that the prosecution objected to a large number of questions, mainly on the ground of relevance, with most of them being upheld.
  7. [161]
    The transcript does not reveal that the Magistrate interrupted the conduct by the appellant of his case.  Indeed, the Magistrate on occasions took time to explain the process to the appellant and assisted him with the process including giving explanations as to rulings on objections as to evidence.  There is no basis for this complaint.
  8. [162]
    Fifthly, the appellant complained that some of the emails tendered were copies and one email was originally incomplete and only later was a complete copy tendered and made an exhibit.  This has already been dealt with in the third submission.
  9. [163]
    Sixthly, the appellant complained that an excel spreadsheet containing a summary of the emails was provided by the prosecution as an aide memoire, and that the Magistrate was invited to rely upon it in place of actual evidence.
  10. [164]
    It does not appear that the Magistrate was invited to do more than use the document to assist her to understand the prosecution case and the Magistrate accepted the document only on that basis and the document was not marked as an exhibit.  In giving judgment, the Magistrate clearly had regard to the emails themselves, not this document.  The appellant did not contend that there was any error in the document.  There is no basis for this complaint.
  11. [165]
    There is no merit in any of these complaints and certainly no basis to overturn the findings of the Magistrate on the basis of them.

Submission (p) - Summing Up

  1. [166]
    The final submission relied upon was that the appellant did not receive a fair trial because of a failure by the Magistrate to adequately sum up the defence case.  It was submitted that the Magistrate took a good forty-five minutes summing up the prosecution case, but barely mentioned the defence.  It was submitted that the Magistrate missed vital portions of the defence case and misstated the evidence and the severity of the communications and in so doing, her verdict failed to appropriately apply the test.
  2. [167]
    The submission did not descend into detail as to where the reference to the evidence was said to be missed or misstated.
  3. [168]
    The decision shows that the Magistrate spent some time identifying the messages upon which the prosecution relied and considering whether or not the use of the carriage service in the way revealed by the evidence was menacing, harassing or offensive as understood in the light of the decision of the High Court in Monis.  Her Honour had regard to the matters raised by the appellant in his cross-examination of Mr and Ms Sibley and the appellant’s submission that his behaviour had to be seen in context. 
  4. [169]
    There is no basis for this complaint.

Section 474.1B

  1. [170]
    During the course of oral submissions before me, counsel for the respondent referred to the presumption in s 475.1B that is relevant if a physical element of an offence against various parts of the relevant division consisted of a person using a carriage service to engage in particular conduct and the prosecution proved that the person engaged in that particular conduct.  In these circumstances it is presumed, unless the person proves to the contrary, that a person used a carriage service to engage in that conduct.  The respondent’s counsel referred to a decision of his Honour Judge Horneman-Wren SC that the section did not apply to s 474.17.[9]
  2. [171]
    The prosecutor in his opening in the trial below indicated that he would be relying on the presumption in s 475.1B, but he did not address why, nor was any further submissions made, about it during the course of the trial.  In his opening, the prosecutor had said he would make further submissions if that were necessary.  No reference was made to it by the Magistrate either during argument or in her decision.
  3. [172]
    This was no doubt because the appellant, with one exception, did not contest that he sent the emails and indeed the appellant during the trial tendered additional emails sent by him; as he did before me.  The issue was whether the emails had the necessary quality about them. 
  4. [173]
    The issue in relation to the one email and the Facebook messages was whether the prosecution had proved that they were sent by him.  The status in evidence of that one email and the Facebook messages has been dealt with above; as the submissions in relation to them were not connected to the current discussion.
  5. [174]
    Despite being provided with the Explanatory Memorandum in relation to the Bill which inserted s 475.1B,[10] it is unclear what factual circumstance, relevant to this case, is being addressed by the Explanatory Memorandum.  No authorities were cited either in the Explanatory Memorandum or by counsel for the respondent which would assist in determining the intention of the parliament in enacting the provision.
  6. [175]
    In any event, the section was not relied upon by the respondent at trial, nor by the Magistrate, nor is it raised by the appellant in either his grounds of appeal or submissions.  As a matter of fact, it does not appear that there is any disconnect between the appellant writing the emails and sending them by the carriage service. Absent some reason to do so, it is not necessary to consider the implications of the section or whether it applies to this offence.

Summary

  1. [176]
    In summary, the conviction is supported by the evidence, and there is no error in the reasoning or the conduct of the hearing.

 Orders

  1. [177]
    For these reasons, the appeal is dismissed.
  2. [178]
    If either party wishes to make any submissions on costs, written submissions not exceeding four pages must be filed and served by 14 days from the date hereof.  The question of costs will be dealt with on the papers. 

Footnotes

[1] White v Commissioner of Police [2014] QCA 121 at [6]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]; Rowe v Kemper [2009] 1 Qd R 247 at [3].

[2] White v Commissioner of Police [2014] QCA 121 at [8]; Forrest v Commissioner of Police [2017] QCA 132, 5; McDonald v Queensland Police Service [2017] QCA 255 at [47]; Rowe v Kemper [2009] 1 Qd R 247 at [5]; Fox v Percy (2003) 214 CLR 118 at [25].

[3] Allesch v Maunz (2000) 203 CLR 172 at [23]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].

[4] White v Commissioner of Police [2014] QCA 121 at [22]; Forrest v Commissioner of Police [2017] QCA 132, 5.

[5]  The Client Agreement provided the bank account details to which any refund was to be paid.  The authority permitted the firm to deduct the amount of all invoices for services immediately without waiting seven days.

[6]  [2013] 249 CLR 92 (Monis).

[7] Monis at 123 [44] – [45].

[8] Monis at 203 [310].

[9] R v Adrian Michael Simmons-Stanley, DC No 270 of 2017, 20 November 2019.

[10]  Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth).

Close

Editorial Notes

  • Published Case Name:

    Wood v Commissioner of Police

  • Shortened Case Name:

    Wood v Commissioner of Police

  • MNC:

    [2021] QDC 209

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    06 Sep 2021

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
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Allesch v Maunz [2000] HCA 40
1 citation
Jump To
Cite 1 - [2000] HCA 40
Forrest v Commissioner of Police [2017] QCA 132
3 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Cite 3 - [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
1 citation
Jump To
Cite 1 - (2003) HCA 22
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
4 citations
Jump To
Cite 1 - [2017] QCA 255
Cite 2 - [2017] QCA 255
Cite 3 - [2018] 2 Qd R 612
Cite 4 - [2018] 2 Qd R 612
Monis v The Queen (2013) 249 CLR 92
2 citations
Jump To
Cite 1 - (2013) 249 CLR 92
Cite 2 - (2013) 249 CLR 92
Monis v The Queen [2013] HCA 4
1 citation
Jump To
Cite 1 - [2013] HCA 4
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
4 citations
Jump To
Cite 1 - [2008] QCA 175
Cite 2 - [2009] 1 Qd R 247
Cite 3 - [2009] 1 Qd R 247
Cite 4 - [2009] 1 Qd R 247
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
3 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] 2 Qd R 489
Cite 3 - [2009] 2 Qd R 489
White v Commissioner of Police [2014] QCA 121
4 citations
Jump To
Cite 1 - [2014] QCA 121
Cite 2 - [2014] QCA 121
Cite 3 - [2014] QCA 121
Cite 4 - [2014] QCA 121

Cases Citing

Case NameFull CitationFrequency
Wood v Commissioner of Police [2023] QCA 414 citations
1

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