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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Parr v Queensland Police Service  QDC 73
ANTHONY CRAIG PARR
QUEENSLAND POLICE SERVICE
s 222 Appeal
Magistrates Court at Brisbane
25 March 2021 (ex tempore)
25 March 2021
Porter QC DCJ
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where self-represented applicant’s driver licence was disqualified by Court Order – where applicant asserts on appeal a denial of natural justice and procedural fairness, existence of extraordinary emergency, mistake of fact and hardship – whether applicant had been accorded natural justice and procedural fairness at trial – whether extraordinary emergency existed – whether applicant had acted under mistake of fact – whether circumstances of hardship existed
Criminal Code 1899 (Qld), ss 24, 25
Magistrates Court Act 1921 (Qld), s 4
Transport Operations (Roads Use Management) Act 1995 (Qld), s 123C
Baker v Smith (No 1)  QDC 76
Parr v Department of Transport and Main Roads  QDC 40
Mr N Dagan for the respondent
The appellant appeared in person
The Office of Director of Public Prosecutions for the respondent
- On the 10th of December 2019, the appellant, Mr Parr, was disqualified from holding a driver licence for six months when he was convicted after a summary trial in the Gatton Magistrates Court. The licence was cancelled that day.
- On the 14th of December 2019, he was issued with a Notice to Appear for driving without a licence while disqualified by a Court Order, and for driving a safe but otherwise defective vehicle.
- On the 6th of January, he filed a Notice of Appeal against his conviction of the 10th of December 2019.
- On the 7th of July 2020, that appeal was dismissed.
- On the 28th of September 2020, the appellant was convicted after summary trial in the Brisbane Magistrates Court of both offences from the 14th of December 2019. He was fined $700 and disqualified from holding a driver licence for two years.
- On the 28th of September 2020, he filed a Notice of Appeal against that conviction in this Court. Mr Parr filed a Notice of Appeal, along with a document headed ‘Grounds of Appeal’ and submissions under the heading ‘Outline of Argument’.
- Before I turn to dealing with the appeal specifically, I should observe that this is an appeal by way of rehearing. I have explained, in excruciating detail in Baker v Smith (No 1)  QDC 76, the law in that regard, but although there is a rehearing on the record, ordinarily the obligation is on the appellant to demonstrate error – a proposition which arises from many High Court decisions and from the character of the rehearing as a rehearing in the nature of an appeal.
- Mr Parr, it should be fair to say, has approached the case in that way and articulated 10 grounds of appeal which identify, read fairly, things that might be error, and I will come to those in a minute. Before doing that, I should explain a little bit about the background of the case.
- The matter was heard over less than a day. The disqualification was proved by a certificate tendered under s 123C of the Transport Operations (Roads Use Management) Act 1995 (Qld). Although there was an affidavit under the hand of Ms Thompson, the delegate who signed it, it was not tendered in evidence. As will be seen, as a matter of law, it did not have to be.
- There was one witness called in the Prosecution case, Senior Constable Holliston. He gave evidence of pulling over Mr Parr who was in a car with a lady, Ms Collins. He took photographs of the damage to the car, he identified Mr Parr as the driver and Mr Parr never said, at any stage, that he was not. He had body worn camera footage. That footage was played, I am told, by Mr Parr, at the trial, and I have no reason to doubt it. Although I could not hear it very well, it was agreed by both parties that, at some stage, probably at about five minutes 20 seconds, I think, Mr Parr is recorded as saying to the officer, “I’ve got a matter in appeal. I’ve put a stay on the decision. I put an application in for hardship, and they’ve rejected my application for hardship.” The relevance of that evidence is explained below.
- Ms Collins was called to give evidence. There is a fair summary of her evidence at paragraphs 17 and 18 of Mr Dagan’s submissions for the Commissioner. I should say, however, I have read the whole of the transcript. In fact, I have read the whole of the evidence and hearing of the trial, along with her Honour’s reasons, and it is for that reason that I say that paragraphs 17, 18 and 19 are a fair summary of the evidence. I will come to some specific points about her evidence later.
- I should highlight that Mr Parr led evidence from Ms Collins, and as I read the evidence, she did not at any point give evidence that she was suicidal on the evening before Mr Parr drove down to pick her up (although there seems to be no doubt that he had been an ongoing personal support for her for some time and that she had had mental health issues).
- The only other witness was Mr Parr. He gave evidence about his concerns about Ms Collins. He said that she called him the night before, that he went down there the next morning (because he was concerned about her mental health), and that he then drove her up to an appointment at a hospital in Brisbane, which would be, in broad terms he thought, good for her mental health.
- There was another passage in the transcript, relied upon by her Honour as comprising an admission by Mr Parr that he knew he was disqualified by Court Order on the day that he was driving, that is, on the 14th. It is fair to say that it is unclear that the body worn camera footage supports that, and it is possible that part of the cross-examination proceeded somewhat at cross purposes between the Police Prosecutor (who, I note, did not rely on that part of the evidence in his submissions) and Mr Parr. I will come back to that a bit later.
- Her Honour then called on Mr Parr to address. That is just by way of a summary of the trial to provide context for the numerous specific points that were raised by Mr Parr on appeal. Mr Dagan corralled Mr Parr’s points into a series of propositions which fairly presented Mr Parr’s case. I am going to deal with Mr Parr’s appeal by reference to each of those points.
Natural justice grounds
- The first heading used by Mr Dagan was to gather together a number of propositions along the lines of “the appellant was denied natural justice or procedural fairness by her Honour”. I observed another way that some of these grounds could be characterised would be that her Honour had failed, in her duty as trial judge, to ensure a fair trial, bearing in mind Mr Parr’s unrepresented status. Dr Dagan identified four points that fell into that general heading, and then another which was raised in argument today by Mr Parr, being that the brief of evidence was only disclosed on the morning of the trial.
- The first of his natural justice points was Mr Parr’s complaint that he was not allowed to give an opening address. He is right that there was no opening address. It is not right to say that he asked to give one and her Honour said “no”, just that her Honour indicated that she did not need an opening from anyone.
- It is correct, as Mr Dagan submits for the Commissioner, that there is no absolute right, even in trials by indictment, for a defendant to open. However, a trial judge has to ensure there is a fair trial, and ordinarily in a trial on indictment, if a defendant wishes to open, there will be an opening. That is so that the jury, which is a separate tribunal of fact from the judge, can understand what is coming. It is very, very common in trials involving judges only, especially in straightforward matters, that there is no opening. There was nothing surprising about her Honour not needing an opening in this case.
- Mr Parr articulated his concern about that situation as going to the fairness of the trial. His concern arose because of his experiences with her Honour at a previous mention. That transcript is also before me. In that transcript, her Honour, in what was possibly fairly abrupt terms, communicated that Mr Parr might be facing a sentence of imprisonment in respect of these offences and that the matter should not necessarily proceed unless he took advice from somebody. That was based on her assumption that Mr Parr was going to plead guilty. Once it was pointed out that it was not going to be a plea of guilty, her Honour abandoned that idea and set the matter down for trial.
- I can understand why Mr Parr, given his history, might have felt concerned by that exchange, but, objectively, it was a perfectly orthodox thing for a busy Magistrate to do and, of course, once her Honour knew that it was a plea of not guilty, she just set the matter down. Objectively, that does not provide a basis for concluding there was anything unfair about her Honour not permitting an opening. I understand that Mr Parr found it disturbing because he had a particular way in mind of presenting his case. But he did not raise that with her Honour. There is no error arising from the lack of an opening.
- The second natural justice point was apprehended bias of the Magistrate. Mr Dagan used this description to cover grounds 1, 2 and 3 (at least), and aspects of other grounds (ground 6, for example, and ground 8), the gravamen of which was that her Honour did not deal with Mr Parr in a well-mannered way and respectfully, and was threatening, condescending, cruel and patronising.
- The feeling in a courtroom is not necessarily communicated by the transcript. However, I have read the whole of the transcript and I was unable to find anything in the text of the transcript which would justify the conclusion that her Honour had acted in a way that was mean, disrespectful, threatening, condescending, patronising, cruel, arrogant or ignorant of due process.
- Quite the opposite. It seemed to me that her Honour was conscious of her duty to him as a litigant in person to explain the processes that were to be followed, to give him a reasonable opportunity to think about what he wanted to do, to take points in respect of, for example, the admissibility of the certificate (which he did not take and, in fact, disavowed in the transcript, but which her Honour persisted with until she was satisfied as to the admissibility of the certificate), and so on.
- Another aspect of the way her Honour conducted the matter was that when Mr Parr was giving evidence or cross-examining, her Honour said at various times words to the effect of “Well, is that it or do you want to do or say or ask anything else or ask any more questions?” There was no stage during the trial when her Honour stopped Mr Parr’s evidence-in-chief or the evidence-in-chief of Ms Collins, or his cross-examination of anyone.
- Notwithstanding that, as I said, I am conscious that the feeling in a courtroom cannot be necessarily communicated in the transcript, and I asked Mr Parr to identify for me those matters which he thought did sustain those very serious allegations against the Magistrate. He pointed to four matters. The first was the tone in which her Honour apparently said she supposed that she would let photographs of the apartment of the defendant into evidence. That may well have been said in an exasperated tone (if it was), but I do not think it goes anywhere near justifying the personal criticisms of her Honour’s conduct that Mr Parr made.
- I also observed that the photographs were not particularly relevant in any event. It is just as likely that by saying “I suppose”, her Honour was communicating that she would let them in but probably shouldn’t.
- The next point he raised was interference in his examination of Ms Collins. It is fair to say that in the early part of his examination of Ms Collins, the Magistrate and the Police Prosecutor took a view of what is a leading question that might be debated. Just because a question leads to a yes/no answer does not make it a leading question. Reasonable minds could differ about whether some of the questions that were challenged truly were leading questions.
- However, eventually both her Honour and the Police Prosecutor stopped objecting in any way to the questioning, and it extended over a couple of pages without interruption. I did not think that there was anything that affected the fairness of the trial in the way the examination of Ms Collins was conducted overall.
- The next natural justice type point was that Mr Parr was not permitted to test the evidence contained in the certificate of Ms Thompson. Ms Thompson signed a certificate under s 123C of the Transport Operations (Roads Use Management) Act 1995 (Qld). That document was admissible on its face if it purported to be what it said it was. Ms Thompson did not have to give evidence for it to be admissible. There was no reason for her to be a witness in the case. In those circumstances, no unfairness or miscarriage of the conduct of the trial arose from her not being able to be examined. As to being permitted to test the evidence it contained, such a certificate is prima facie evidence of the facts it contains, and the fact that was important was that it asserted that Mr Parr did not have a licence on the 14th of December.
- On the evidence before the Magistrate, that was undoubtedly correct. Mr Parr said that his concern with the certificate lay in the fact that he had experiences of certificates of a similar kind being mistaken, or asserting things that were overturned in trials or appeals, and so on. I note that the dismissal of the proceedings against him in respect of a similar offence on the 22nd of September 2020 was because the certificate that was produced was exculpatory, that is, it said that he was licensed. We had a long discussion about this in the hearing, but it is sufficient to say that I could see no reason why there was any miscarriage of justice or error of law arising from him not being permitted to challenge the certificate. He could have given contrary evidence if he wished.
- The next point that was raised in this broad natural justice ground was that he was not able to adduce evidence from Ms Collins due to the intervention of the Magistrate and the Prosecutor. I have already dealt with that when I was dealing with the broader apprehended bias points.
- The next point that arose was a point raised by Mr Parr today, which is that he had not received the brief of evidence when the trial started. Now, that appears to be quite true based on the transcript. If I am to accept what was in the transcript as accurate, it was available for collection but not collected. But the rights and wrongs of that do not really matter because of the way her Honour dealt with the issue. At the start of the trial, Mr Parr told her Honour that he had not seen the brief. Her Honour’s response to that was to stand the matter down until he had the brief and until he had a chance to read it.
- Mr Parr struck me as someone of some intelligence. After the break and after he had the brief for a while, he said he was ready to proceed. He had brought the necessary witness to the trial. He did not seek to adjourn the trial for any reason, and in those circumstances, I cannot see that any denial of natural justice or other legal error arose from proceeding with the hearing in that circumstance.
Extraordinary error defence ground
- The next point that Mr Dagan identified, which arises from a number of grounds in the grounds of appeal point (that is, grounds 4, 5, 7 and 8, as I count them anyway) was that the defence of extraordinary emergency could not be excluded beyond reasonable doubt. The defence of extraordinary emergency is provided in s 25 of the Criminal Code 1899 (Qld), and if it is raised on the evidence, it has to be excluded beyond reasonable doubt by the Prosecution.
- Mr Dagan’s submission was that it was excluded beyond reasonable doubt. His detailed submissions on this appear at paragraphs 46 to 52 of his submissions. Those submissions are sustained by the transcript and the inferences that flow from it.
- However, I have read the material and assessed the question of the extraordinary emergency defence for myself. There seems to me to be two fundamental problems with it.
- First, there is no evidence that there was an emergency arising from the phone call on the evening before Mr Parr drove to Ms Collins’ house. The highest the evidence goes was that she was feeling a bit down. I accept that she had some history of mental health issues, but there was just no evidence that there was a crisis on the evening of the 13th of October.
- Mr Parr might have said in his submissions – he certainly said from the bar table – that that was because he did not want to embarrass Ms Collins by leading evidence from her about that. That may well have been his subjective state of mind when he conducted the trial. However, Ms Collins was asked by the Prosecutor about that matter, and she denied specifically that she was feeling suicidal that evening.
- From TS1-26 line 20, Ms Collins agrees that she was feeling a bit down on the 14th of December, that she was rather depressed and that she was feeling a bit down on the evening of the 13th of December. As I said, Mr Parr said that things were a lot worse, but nowhere did Ms Collins ever say that that was the case on the evening of the 13th. And it seems to me that it could not be concluded, on the evidence that was before the Magistrate, that there was an emergency.
- Second, in addition to that, if there was an emergency, the response to drive down the next morning was not one which was an act done under such circumstances of extraordinary emergency that an ordinary person, possessing ordinary powers of self-control, could not reasonably be expected to act otherwise than to drive down the next morning to provide comfort to her (which I accept he did), and to drive her to an appointment which was not itself to deal with any emergency health crisis. For those reasons, as well as the reasons articulated in detail by Mr Dagan, I find that there was no error in finding that the extraordinary emergency defence was excluded beyond reasonable doubt.
- I should also deal with the question of mistake. In respect of this, although it was taking a generous view of it (raised perhaps inferentially in the grounds of appeal by Mr Parr), it did not seem to be directly argued before her Honour, but in any event, I really should deal with it. The mistake argument was merely this. As I understood it from Mr Parr, it arose out of what he said at the time on the body worn camera footage, that is, that which I have already set out in paragraph  above.
- Combined with that is what he told me from the bar table and which, for present purposes, I am willing to consider just to test whether there is any potential error. He told me that another driving case against him had been dismissed just six weeks before (on 22 September), so that he subjectively held a view that he was able to drive. He said he also held that belief because there was an appeal on foot in respect of the refusal of his hardship application.
- The background to what I have just said is articulated in paragraphs  and  of the reasons of Judge Horneman-Wren SC of this Court, delivered on the 23rd of March 2020. His Honour explains it like this, and Mr Parr agreed that it was appropriate to rely on what his Honour said in terms of this background (footnotes omitted):
 The appellant, Mr Parr, had his licence suspended for accumulation of demerit points. He was entitled to make an application for a special hardship order. He did so by application filed in the Ipswich Magistrates Court on 5 March 2019. That application was dismissed on 16 April 2019 when Mr Parr failed to appear at court. Mr Parr made a second application to the same court on 15 May 2019. On 9 July 2019, a magistrate, acting pursuant to rule 662(2)(a) of the Uniform Civil Procedure Rules 1999, which permits a court to set aside an order made in the absence of a party, set aside the earlier dismissal of the first application and issued directions. There were subsequent further mentions.
 On 8 October 2019, the matter again came before the court. Mr Parr sought a further adjournment. That was refused. In a brief hearing the magistrate indicated that Mr Parr had been given sufficient opportunity to place any relevant material before the court. There were, in fact, several affidavits which Mr Parr had filed in accordance with the earlier issued directions.
- As is not contentious, on the day, the application for a special hardship order was dismissed. That dismissal was appealed, and that was ultimately heard on the 29th of January by Judge Horneman-Wren SC. His Honour dismissed the appeal on the basis that there was no jurisdiction to appeal because the matter was not an action, as that term is used in the relevant section of the Magistrates Court Act 1921 (Qld), and there was no other statutory provision which could give rise to a right to appeal, noting that all rights to appeal are, by definition, statutory.
- It is in that context that Mr Parr contended that the question of mistake of fact under s 24 arose. Reasonable minds could differ about whether the facts before her Honour raised the defence of mistake of fact. That is particularly so, bearing in mind the passage of the transcript to which I have referred, where Mr Parr appeared to admit that he knew that he was driving without a licence. I do not actually have to make a finding of fact about that. Although, in all honesty, my view if pressed would be that he did understand that, even taking into account the things that he said to me today, including that he understood, for example, that the question of whether he had a licence was, at the least, a grey area. But I do not have to decide it on that basis.
- Even if I accept that he thought that the effect of the appeal of his hardship order was that he was still allowed to drive, that would not amount to a relevant defence for two reasons.
- First, it is evident from the body worn camera footage evidence, which is the only evidence that could support this, that he was correct on all the facts about that. He just was mistaken as to the legal effect of the appeal, and that is not a mistake which gives rise to a defence under s 24.
- Second, even if he was under that mistaken belief after the 8th of October, on the 10th of December 2019, he was disqualified by a Court Order and I do not understand how one could hold a reasonable belief that you are entitled to drive just four days after that had occurred.
- On all the material before me, which frankly includes evidence that was not before his Honour, I am satisfied that the defence of mistake of fact is excluded beyond reasonable doubt and really did not arise on the evidence before her Honour, in any event.
The hardship application ground
- The next ground of appeal raised was that the appellant was entitled to drive due to his hardship application. I have already dealt with that above.
Personal hardship ground
- The final ground of appeal was that the Magistrate gave no consideration to personal hardship of the appellant. There is not much doubt based on his version of events that Mr Parr has had a hard time with the criminal justice system recently, but I asked him how those matters could be relevant to the lawfulness of his conviction, and he was not able to point to anything that persuaded me it was.
- For those reasons, I am not satisfied that any error has been shown in her Honour’s decision to convict in respect of the two offences that were before her and which are the subject of the appeal. I dismiss the appeals.
- Published Case Name:
Parr v Queensland Police Service
- Shortened Case Name:
Parr v Queensland Police Service
 QDC 73
Porter QC DCJ
25 Mar 2021