Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

SAI v Queensland Police Service[2022] QDC 137

SAI v Queensland Police Service[2022] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

SAI v Queensland Police Service [2022] QDC 137

PARTIES:

SAI

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

11 of 22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1866 (Qld)

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

16 June 2022 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

16 June 2022

JUDGE:

Holliday QC DCJ

ORDER:

  1. The appeal is allowed.
  2. The conviction for the offence of contravention of a temporary protection order is set aside.
  3. A retrial is ordered to be heard before a different Magistrate.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was convicted of contravention of a temporary protection order – where the issue in the trial was whether the prosecution had proved that the appellant was within 100 metres of the aggrieved’s residence – whether the learned Magistrate erred in a finding of fact on a material point – where the appellant also contends that this matter should have been heard together with another charge 

LEGISLATION:

Justices Act 1886 (Qld), ss 222 and 223

CASES:

Allesch v Maunz (2000) 203 CLR 172

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

White v Commissioner of Police [2014] QCA 121

COUNSEL:

The appellant was self-represented

T Connolly for the respondent

SOLICITORS:

The appellant was self-represented

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 6 April 2021 a temporary protection order (“order”) was made naming the appellant as the respondent. Condition 2 of the order prohibited the appellant from entering or approaching to within 100 metres of the premises where the aggrieved lives. On 13 December 2021 the appellant was convicted, after a trial in the Magistrates Court, of contravening condition 2 of the order on 9 May 2021. The sole issue in the trial was whether the prosecution had proved beyond reasonable doubt that the appellant was within 100 metres of the premises where the aggrieved lives. The appellant, who was self-represented below and on appeal, appeals his conviction.

Grounds of appeal

  1. [2]
    In the notice of appeal filed 10 January 2022, the grounds of appeal are detailed as:

“Found Not Guilty of original DVO & was Dismissed. This Breach was scheduled to be heard with original Matter, but was separated by Prosecution before Trial. Witness illegally filmed evidence & this was Proven & disregarded by MAG. Witness gave 100% False statement & then ‘Stood by it’ in Court (False details). MAG. Disregarded PC evidence & then used it in summing up. Google Distance was proven Inaccurate, but disregarded by MAG. No Parity with Aggrieved’s x45 breaches – Receiving NO Fine. I Did Not Breach Knowingly. PC Lied in Court”.

  1. [3]
    The appellant filed an outline of submissions, which is in dot point form and is 1.5 pages in length. Whilst there is much that is unclear in those submissions, it is clear that the appellant contends that the Magistrate was in error in finding that the Google Map measurements were supported by the odometer reading on the police officer’s  police vehicle.

The nature of the appeal

  1. [4]
    The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence below.[1] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]  I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the learned Magistrate’s view.[3]

New Evidence

  1. [5]
    The appellant filed with this Court a number of documents including documents that he contends are proof of Google being an unreliable source of measurement. Given that I have determined, in the absence of considering those documents, that the appeal ought be allowed and a new trial ordered, it is unnecessary in the present matter for me to determine whether, in the exercise of discretion, I ought give leave to adduce new evidence.[4]

The evidence at trial

  1. [6]
    The issue at trial was whether, on 9 May 2021, the appellant had contravened condition 2 of the order made on 6 April 2021, by approaching within 100 metres of the premises where the aggrieved lives.
  2. [7]
    The prosecution called two witnesses: KF (a relative of the aggrieved) and Constable Atkinson (a police officer). The relevant prosecution exhibits in the trial consisted of two video recordings taken by KF on 9 May 2021 (videos 1 and 2 on exhibit 1), a still photo taken from exhibit 1 (exhibit 3), the appellant’s record of interview on the body-worn camera footage of Constable Atkinson (video 3 on exhibit 1) and print outs from Google maps (exhibit 6).
  3. [8]
    The appellant gave evidence and tendered exhibits (exhibits 7 to 11), namely various Google printouts and photographs.

Evidence of KF

  1. [9]
    KF recalled being driven by her partner to the grocery store when they noticed the appellant “just around the corner from [the aggrieved]’s place, maybe five – five houses down from [the aggrieved]’s place, just taking in the view”. She asked her partner to slow the vehicle so she could record the appellant as evidence.[5] She believed the appellant to be in breach of the condition that he stay a particular distance, namely 100 metres, away from the aggrieved’s house.[6]
  2. [10]
    KF stated that the appellant was “about five houses away”, and when questioned on distance said: “I can’t say exactly, but I would say, like [seventy][7] metres or so”.[8]  She further stated that the appellant was on the right side of the road, being the same side as the aggrieved’s house.[9] KF indicated that she took video footage of the appellant while he was standing looking at the view. These clips formed part of exhibit 1 and depicted the appellant drinking a coffee near a guardrail across from [a residence].

Evidence of police officer

  1. [11]
    Constable Molly Atkinson was the arresting officer. The order made on 6 April 2021 was tendered through Constable Atkinson, who noted condition 2, namely that the appellant is prohibited from entering or attempting to enter or approaching to within 100 metres of the premises where the aggrieved lives or works.[10] The order was served on the appellant on 7 April 2021 at Nerang (exhibit 5).[11]
  2. [12]
    After reviewing the complaint made by KF, Constable Atkinson drove to the offence location at [street], and measured the distance between where she identified the appellant to be standing and the address of the aggrieved. She “deduced that that was under 100 metres”.[12] Constable Atkinson went to the location in her police vehicle,  “used the kilometre metreage in the car to park the vehicle from where the defendant was standing”, and drove to [the aggrieved’s address]. She then double-checked that calculation, and “it was the same as what was provided on Google Maps”.[13]
  3. [13]
    Constable Atkinson said that she “went to the location where the defendant was standing, and pin dropped [herself] onto the map, using Google Maps, and then put directions into [address], and it gives you a metreage distance between the two”.[14] Exhibit 6 was a photograph indicating the Google Maps metreage between the two locations, being a distance of 94 metres.[15] Constable Atkinson gave evidence that her understanding of the Google Maps calculation is that the distance would be from the door or footage of the aggrieved’s property.[16]
  4. [14]
    In relation to the odometer check on Constable Atkinson’s vehicle, the evidence-in-chief included:

“SGT Jackson: When you did a kilometre check on your vehicle, what point on the aggrieved’s residence did you start the check?

PC Atkinson: The frontage. So when you pull up directly outside of her front door to the street.

SGT Jackson: So where on the property would you say the front door was?

PC Atkinson: I believe it’s about in the centre of her property.

SGT Jackson: So when you say it was … 94 metres from the centre of her property to approximately where he was standing, or where he was seen?

PC Atkinson: That’s correct. Yes.

SGT Jackson: So if you went from the boundary of her property, it would be less?

PC Atkinson: Correct. Yes.”[17]

  1. [15]
    Constable Atkinson was cross-examined by the appellant on the unit of measurement which the odometer in her vehicle displays, to which she said: “I believe it’s like a 0.94 kilometre is what it would’ve shown” (underlining added).[18]

Evidence of appellant

  1. [16]
    The appellant elected to give evidence in his trial. In tendering exhibit 7 and exhibit 8 (Google Maps printouts), the appellant suggested that there was an inaccuracy in Google Maps’ measurements.[19] Further, the appellant tendered a photograph obtained through Google Earth which depicts that the area was under construction at the time (exhibit 9). Exhibits 10 and exhibit 11 were additional photographs of the shared driveway between two houses.[20]

The submissions of the parties below

  1. [17]
    When making a no case submission, the appellant suggested that he did not believe “that the police officer’s speedometer does measure in point metres. I haven’t seen that before, in cars”.[21] The no case submission was ultimately rejected by the learned Magistrate.
  2. [18]
    The prosecution submitted:

“The police officer has clocked that distance from the centre of the aggrieved’s house at [address], to the grate. Now, my friend made submissions that no car has an odometer that clocks that far. The prosecution submit that there is a number of cars, a lot of cars that actually clock distance in metres”.[22]

  1. [19]
    The learned Magistrate stated that there was “no evidence one way or another about that … apart from the Constable’s oral evidence”.[23] The prosecution summarised Constable Atkinson’s evidence that she took that measurement from the centre of the house, and suggested that if the measurement was taken from the outside boundary of the property, that the distance would be even less than 94 metres:

“It’s the prosecution’s submission that it would be approximately 90, if not even less metres away to the centre of the grate.

The [appellant], in his record of interview, confirmed that that is where he was standing, was only just above that grate on the side of the road. It’s further submitted that also that Google Maps, even though my friend has – the defendant has stated that it’s not accurate, given that the police officer has also measured it in her police car, it is the submission that it is an accurate reading of 94” (underlining added).[24]

  1. [20]
    On this issue, the appellant in his closing submissions stated:

“I refute the evidence from the police officer. She gave no evidence, but a statement that she used her police odometer. She has a body worn camera. She would’ve been able to provide evidence to the court of the reading of that. She did not. The prosecution has stated that the measurements could have been – no one confirmed, no one here is a Google expert. No one has confirmed that Google actually takes measurements from the front door or middle of the property, or the outer boundary. So if the prosecution wants to state if it was taken from the outer boundary, that the metreage would have decreased, I state that you have to do the same with the two metre grate that was taken from the middle of. Why not take it from the outer edge of the grate, as I was further down the road in the video, not straight above the middle of the grate.

As stated, I don’t believe that the police have given any substantial evidence that backs up that it was truly 94 metres that I was standing. I would’ve expected an independent measurement, some proof of an actual form of measurement from a certain spot [residence] to the grate…”[25]

  1. [21]
    The appellant submitted there was an ulterior motive in Constable Atkinson bringing the contravention charge, namely that doing so would increase the prospects of her obtaining a final protection order against the appellant on the conditions she sought.[26]
  2. [22]
    The appellant made submissions that the order in its final terms did not contain the condition which was the subject of the alleged breach. He stated that “on the 11th of November I was found not guilty of all those offences. The matter was dismissed. Therefore, we are sitting here on a breach that is on an order that wasn’t an order”.[27]
  3. [23]
    The appellant also took issue with the “two matters” (that is, the hearing of the application for the final protection order and/or another breach and the trial subject of the appeal) being separated. He submitted that because he was found not guilty of the previous matter, if the two were dealt with together they would have been “dismissed not guilty”.[28]

The reasons of the learned trial Magistrate

  1. [24]
    The learned trial Magistrate commenced her reasons by setting out the elements of the offence and detailing that the uncontentious elements of the offence had been satisfied.
  2. [25]
    The learned Magistrate then considered the submissions of the appellant “that he could not be found guilty of this offence because, as I understand it, the application for a protection order seeking the same conditions as the temporary protection order of the 6th of April 2021, on a final basis, had been dismissed by a Magistrate in November 2021.” The learned Magistrate found that the appellant was mistaken as to the law in relation to his submission. She found that as at 9 May 2021 the order was current, and the respondent was bound by it.[29]
  3. [26]
    The learned Magistrate then turned to the submissions of the appellant relating to the police separating the hearing of the application for the final protection order and the present proceedings. The learned Magistrate found that:

They are two separate matters with different standards of proof. The application for a final protection order has a civil standard of proof, on the balance of probability. This charge has a higher criminal standard of proof, beyond reasonable doubt. It is entirely appropriate that they should be heard separately.” [30]

  1. [27]
    Whilst it was not in issue in the trial, the learned Magistrate summarised the evidence relevant to the defendant being the person in exhibit 3 on [street] at Highland Park. This included the appellant admitting same. The learned Magistrate then found that the appellant was the person depicted in exhibit 3.[31]
  2. [28]
    The learned Magistrate then summarised the evidence of the witnesses, including that of the appellant, identifying that the issue was “how far away he was from the premises where the aggrieved lives.”[32].
  3. [29]
    The learned Magistrate said that: “Constable Atkinson said she had used Google Maps and the odometer on her car to measure the distance from where the defendant was standing to [residence].”[33] The Magistrate did not accept, that because of the discrepancies in distances between exhibit 7 and 8, that all distances measured by Google Maps were unreliable.[34] She found:

“In any event, the Prosecution do not have to prove the exact distance between where the defendant (sic) and the aggrieved’s premises at [number of residence]. What they have to prove is that he approached and was standing within 100 metres of her residence. Constable Atkinson also gave evidence that she measured the distance, using her car’s odometer, as .94 kilometres. In cross-examination, she said that her vehicle’s odometer recorded this. The defendant was critical in his closing submission that Constable Atkinson’s conduct of applying for a protection order and then a variation of it, and what he perceived to be a delay in the application being ultimately dismissed.

 He suggested that she had been motivated to bring this charge because she could prove that protection order should be made seeking the conditions she wanted. I do not accept this submission. There was no evidence that Constable Atkinson had investigated and arrested the defendant with any ulterior purpose. She gave evidence that she was acting on the complaint of [KF], and [KF] gave evidence that she had made the complaint. I, therefore, find no reason to not accept Constable Atkinson’s evidence that she also checked the distance using her car’s odometer, which also recorded a distance of 94 metres(underlining added).[35]

Submissions of the parties on appeal

Appellant’s submissions

  1. [30]
    I have already stated that the appellant’s submissions are 1.5 pages in length, and it can be deduced that the appellant is contending that the Magistrate was in error in finding that the Google Map measurements were supported by the odometer reading on the police officer’s police vehicle. He also contends that Google Maps measurements are unreliable.
  2. [31]
    The appellant also contends:
    1. (a)
      that the trial the subject of the present appeal should have been heard with another contravention of the same domestic violence order heard by Magistrate Dooley on 11 November 2021;
    2. (b)
      that the final domestic violence order did not contain this condition so there can be no breach; and

that the witness, KF, was the only person in the vehicle and had illegally filmed the appellant whilst she was driving.

Respondent’s submissions

  1. [32]
    The respondent’s primary submission, in written submissions, was that the learned Magistrate did not err. In relation to what the respondent identifies as “Ground 1 – Weight given to the evidence at trial”, the respondent submitted, in written submissions, that:
    1. (a)
      no less weight should be given to Constable Atkinson’s evidence; statements that the relevant distance was less than 100 metres, and more specifically 94 metres, are consistent with each other;[36]
    2. (b)
      under the Domestic and Family Violence Protection Act 2012 (Qld), “premises” is defined as including any part of an area of land. As Constable Atkinson measured to the front centre of the aggrieved’s home, rather than the closest boundary line, the relevant distance actually would have been less than 94 metres;[37]
    3. (c)
      the crux of KF’s evidence was that the appellant was standing on [street], holding something in his hand and standing across the road from his BMW. Any minor inconsistencies in her evidence are explained by the circumstances of driving quickly past the appellant. In any event, KF’s evidence was treated with “some caution”[38] by the learned Magistrate;[39]
    4. (d)
      the screenshots tendered by the appellant purporting to show inaccuracies in the measurements on Google Maps are a consequence of the properties at [residences] sharing a driveway, as well as it being uncertain where the ‘pin’ to measure the distance between other example properties had been ‘dropped’;[40]
    5. (e)
      exhibit 6 clearly showed the distance between where the appellant was standing and the aggrieved’s premises as being 94 metres. Constable Atkinson provided independent evidence of the same by measuring the distance using the odometer on her car (underlining added);[41]
    6. (f)
      despite any road works, the shape of the road had not changed materially;[42] and
    7. (g)
      the learned Magistrate had regard to each exhibit and addressed them in turn when handing down her decision.[43]
  2. [33]
    The respondent identifies the second ground of appeal as “Ground 2 – Different magistrate, different outcome”. The respondent does not accept that had this contravention been joined with another contravention of the same domestic violence order heard by Magistrate Dooley on 11 November 2021, that the outcome would have been different (and the appellant found not guilty). Further, the respondent submitted that this ground has no bearing on proving whether this particular contravention of the order occurred beyond reasonable doubt.[44] In fact, it is submitted that joinder of the defendant’s charges may have resulted in prejudice to the defendant, and there was no nexus between the two breaches.[45]
  3. [34]
    The respondent submitted that the protection order dated 6 April 2021 was in force at the relevant time when the contravention is alleged to have occurred on 9 May 2021. The domestic violence order was not revoked by Magistrate Dooley, and the most recent variation of the order dated 11 November 2021 remains current until 10 November 2026.[46]
  4. [35]
    The respondent in oral submissions before me conceded that the Magistrate was in error in finding that the odometer reading on the police vehicle recorded a distance of 94 metres which supported the evidence obtained from Google Maps. The respondent properly accepted that the appeal ought to be allowed on this point.

Disposition

The Magistrate erred in finding that the Google Map measurements were supported by the odometer reading on the police officer’s police vehicle

  1. [36]
    As the respondent properly accepts, the Magistrate was in error. The evidence did not establish that the police vehicle’s odometer recorded a distance of 94 metres.
  2. [37]
    It is clear that the Magistrate was led into that error. The police officer gave evidence in cross-examination, when tested on whether the car’s odometer measured in tens of metres, that the odometer measured .94 kilometres.[47] This is 940 metres, not 94 metres. Instead of recognising this, the prosecutor made submissions from the bar table that odometers can measure in metres and that the evidence of the police officer that the “kilometre check on [her] vehicle” measured 94 metres should be accepted.
  3. [38]
    The learned magistrate found that the police vehicle recorded a distance of 94 metres. This was an error of substance. The prosecutor relied heavily upon the odometer reading in his submissions to the Magistrate, submitting that Google Maps should be accepted as accurate “given that the police officer has also measured it in her police car”, which had the same result namely “94 [metres].”
  4. [39]
    The Magistrate did not find that she was satisfied to the requisite standard on the Google measurements alone. It is clear that the level of satisfaction was reached only upon her finding that the Google measurements were supported by the evidence of the police officer of the odometer reading.
  5. [40]
    This is not a matter where I should determine the matter on the evidence below. There were important matters of credibility of the police officer raised by the appellant. Both parties accept that the appropriate disposition of the matter is to have the matter reheard by another Magistrate should the prosecution elect to proceed with the matter.

There is no merit in the remaining contentions made by the appellant

  1. [41]
    Whilst other contentions raised by the appellant were not properly formulated as grounds of appeal, given that he is self-represented, the contentions should be addressed.
  2. [42]
    Firstly, the contention that if the present offence had been dealt with at the time of another offence and/or the final hearing of the domestic violence application, then the result would have been different. There is no merit in this contention. The Magistrate would have had to direct themselves to consider each charge separately. There is no suggestion that there was any cross-admissibility of evidence and, in relation to the final hearing, a different standard of proof applied.
  3. [43]
    Secondly, the contention that this was not an offence known to law as the final protection order did not contain the condition requiring the appellant to not approach within 100 metres of the aggrieved’s residence. There is no merit in this contention. As at 6 May 2021, which is the date of the breach subject to appeal, the order was in place which contained the condition that was alleged to have been breached. That is the order that was to be considered by the Magistrate when determining whether the prosecution had proved that the elements of the offence of contravening the domestic violence order (being the temporary protection order) were satisfied.
  1. [44]
    Thirdly, the appellant contends that the witness who filmed him was not a passenger in the vehicle but was illegally filming him whilst driving and points to other inconsistencies in her evidence. There is no merit in these contentions. The appellant admitted to police that he was the person depicted in the still image. The only issue in the trial was whether it was proved to the requisite standard that the appellant was within 100 metres of the appellant’s residence. It was the police officer’s evidence that the Magistrate accepted in relation to this issue.

Order

  1. [45]
    The orders are as follows:
  1. The appeal is allowed.
  2. The conviction for the offence of contravention of a temporary protection order is set aside.
  3. A retrial is ordered to be heard before a different Magistrate.

Footnotes

[1] Justices Act 1886 (Qld) s 223 (‘Justices Act’).

[2] Allesch v Maunz (2000) 203 CLR 172; White v Commissioner of Police [2014] QCA 121 at [6]-[8].

[3] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].

[4] Section 223 of the Justices Act.

[5]  Trial Transcript page 11, lines 30-35.

[6] Trial Transcript page 12, lines 6-8.

[7] The Trial Transcript page 12, line 13 records “seven” metres but it is accepted by both parties this is an error and should read “seventy metres”.

[8] Trial Transcript page 12, lines 12-13.

[9] Trial Transcript page 12, lines 17-18.

[10] Trial Transcript page 26, lines 26-36.

[11] Trial Transcript page 26, lines 1-9.

[12] Trial Transcript page 27, lines 19-28.

[13] Trial Transcript page 27, lines 30-34.

[14] Trial Transcript page 27, lines 40-44.

[15] Trial Transcript page 28, lines 5-8.

[16] Trial Transcript page 28, lines 20-22.

[17] Trial Transcript page 28, lines 35-46.

[18] Trial Transcript page 30, lines 10-12.

[19] Trial Transcript page 38, lines 11-33.

[20] Trial Transcript page 39, line 31 to page 40, line 15.

[21] Trial Transcript page 36, lines 12-14.

[22] Trial Transcript page 44, lines 25-28.

[23] Trial Transcript page 44, lines 30-34.

[24] Trial Transcript page 44, lines 36-46.

[25] Trial Transcript page 46, lines 4-19.

[26] Trial Transcript page 45, lines 33-39.

[27] Trial Transcript page 4, lines 17-22.

[28] Trial Transcript page 46, lines 25-30.

[29] Transcript of Magistrate’s Decision page 2, lines 16-20.

[30] Transcript of Magistrate’s Decision page 2, lines 25-31.

[31] Transcript of Magistrate’s Decision page 3, lines 32-35.

[32] Transcript of Magistrate’s Decision page 3, lines 14-15.

[33] Transcript of Magistrate’s Decision page 4, lines 28-32.

[34] Transcript of Magistrate’s Decision page 5, lines 5-10.

[35] Transcript of Magistrate’s Decision page 5, lines 21-38.

[36] Respondent’s Outline of Submissions page 4, [14].

[37] Respondent’s Outline of Submissions page 4, [15].

[38] Transcript of Magistrate’s Decision page 4, lines 25-26.

[39] Respondent’s Outline of Submissions page 4, [16].

[40] Respondent’s Outline of Submissions page 5, [17]-[18].

[41] Respondent’s Outline of Submissions page 5, [19] See also at page 8 [30]..

[42] Respondent’s Outline of Submissions page 5, [20].

[43] Respondent’s Outline of Submissions page 5, [21].

[44] Respondent’s Outline of Submissions page 6, [24].

[45] Respondent’s Outline of Submissions page 6, [26].

[46] Respondent’s Outline of Submissions page 6, [25].

Close

Editorial Notes

  • Published Case Name:

    SAI v Queensland Police Service

  • Shortened Case Name:

    SAI v Queensland Police Service

  • MNC:

    [2022] QDC 137

  • Court:

    QDC

  • Judge(s):

    Holliday QC DCJ

  • Date:

    16 Jun 2022

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.