Millar v Commissioner of Police
[2022] QDC 254
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- Millar v Commissioner of Police[2022] QDC 254
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Millar v Commissioner of Police[2022] QDC 254
Millar v Commissioner of Police[2022] QDC 254
DISTRICT COURT OF QUEENSLAND
CITATION: | Millar v Commissioner of Police [2022] QDC 254 |
PARTIES: | ANDREW JOHN MILLAR (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1577/2022 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 25 November 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2022; 14 October 2022; further written submissions from appellant and from respondent |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the learned magistrate conducted a judge alone trial – where the appellant was convicted of one count of entering premises with intent to commit an indictable offence – where the appellant was convicted of one count of stealing – where the learned magistrate erred by failing to direct themself on identification – where the learned magistrate erred by failing to direct themself on circumstantial evidence – where the learned magistrate erred by reversing the onus of proof CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the appellant was convicted of one count of entering premises with intent to commit an indictable offence – where the appellant was convicted of one count of stealing – where the appellant was sentenced to eight months imprisonment with a parole release date of 20 November 2022 |
COUNSEL: | The appellant appeared self-represented R Byrne for the respondent |
SOLICITORS: | The appellant appeared self-represented Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant, Andrew John Millar, was convicted before the learned magistrate at Brisbane on 1 July 2022 of one count of entering premises with intent to commit an indictable offence (27/5/2019) and one count of stealing (27/5/2019) after previous conviction.[1] Sentence proceedings were adjourned, and on 21 July 2022, the appellant was sentenced to eight months imprisonment with a parole release date set at 20 November 2022 (50% of the head sentence).[2]
- [2]The appellant’s appeal against conviction and sentence was heard by me on 3 August 2022.
Grounds of appeal
- [3]The applicant’s original notice of appeal filed 4 July 2022, set out eight “grounds” of appeal,[3] and in an amended ground of appeal added two further “grounds”.
- [4]After the hearing of the appeal before me on 3 August 2022, with the decision reserved, the appeal was relisted for further hearing on 2 September 2022, given what appeared to be further potential grounds of appeal. These grounds were articulated as follows:
- (a)That the learned magistrate erred by failing to direct himself on identification;
- (b)The learned magistrate erred by failing to direct himself on circumstantial evidence; and
- (c)The learned magistrate erred by reversing the onus of proof.
- (a)
- [5]Further submissions were filed by the appellant and the respondent, and at a subsequent hearing on 14 October 2022, leave was given for each of the appellant and respondent to again file further supplementary submissions.
- [6]The appellant, with the consent of the respondent,[4] filed these additional grounds of appeal as follows:
- (a)That there was a failure by the magistrate to direct himself on the identification evidence;
- (b)That there was a failure by the magistrate to direct himself on circumstantial evidence; and
- (c)That the magistrate reversed the onus of proof.
- (a)
The trial
- [7]The respondent has helpfully summarised the trial evidence as follows:-[5]
“5. The complainant in both offences, Kenneth Quimby, lived at 1/52 Gaythorne Road on 27 May 2019. He described his complex as being part of a “10 unit security complex with a gate … you drive down a driveway and go through a gate to get into your parking area …”[6]
- He gave evidence that the gate between the driveway and his garage was operated by a button. It took 10-12 seconds for the gate to open after pushing the button and a similar amount of time for it to close.[7]
- Mr Quimby owned a Trek X-Caliber 7 bicycle. He kept it in his carpark.[8] It was freestanding against the wall on 27 May 2019 the day of the offences.[9]
- At about 8 or 9am on 27 May 2019 Mr Quimby left his residence in the car from his garage to go to an appointment with his daughter.[10] When he returned in his car he saw a man out the front of his unit trying to ride away on a bicycle that looked similar to his. He then reversed into his carpark and saw that his bicycle was gone.[11] He then left the carpark and found the man trying to put a bicycle, which he identified as his, into the back of a car. This was occurring about 200 metres from his complex around the corner.[12] It was the same man he had seen with a bicycle as he was driving into his carpark. [Mr Quimby confronted the man and took the bicycle back. The man said that he had found the bicycle and then got it to his car and drove off.[13] Mr Quimby took photographs of the car that the man drove away in which depicted the car’s number plate. He later provided those photographs to the police.[14] Those photographs were tendered in the trial.[15]
- Mr Quimby was cross-examined extensively about issues including his conversations with police officers, route he took home from his appointment and the position from which he saw the appellant outside of his unit.
- Mr Quimby called the Indooroopilly Police Station before attending the Ferny Gove Police Station on 28 May 2019 and reporting the incident to Constable Claire Nestor.[16] He was contacted by Detective Gerard McCarthy about a week later. He provided a statement to the detective and identified the appellant in a photo board as the person who was putting his bicycle into the back of a car. Detective McCarthy interviewed the appellant on 19 June 2022. It was tendered in the trial.[17] In the interview the appellant agreed that he was on Gaythorne Road at the relevant time but refused to answer other questions.
- The appellant admitted the previous convictions which gave rise to the circumstances of aggravation to the stealing charge.[18]
- The appellant did not give or call evidence. The appellant told the acting magistrate in his closing submission that his case was that he found Mr Quimby’s bicycle and he did not dispute that he was in possession of the bicycle on the relevant day.[19] Aspects of the cross-examination were consistent with how the appellant stated his case in his closing submission. For example, he did not suggest to the complainant that he was mistaken in identifying the bicycle in the appellant’s possession as belonging to him. In the cross-examination of Detective McCarthy, he asked the detective to agree that it was possible to find a bicycle.”[20]
The law – appeals
- [8]
- [9]In McDonald v Queensland Police Service [2017] QCA 255 [47], Bowskill J (as she then was) stated:
“It is well established that, on an appeal under [Justices Act] s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and 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. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [citations omitted]
- [10]In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated:
“… an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”[22]
The law – judge alone criminal trials
- [11]In Cummins v Guilfoyle [2021] QDC 127, Morzone KC DCJ sets out the principles applying to a magistrate providing reasons for judgement in a summary trial. As his Honour observes: -
“[12] The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision."
[13] In the absence of an express statutory provision in a summary trial, a judge is obliged to give sufficient reasons to identify the principles of law applied and the main factual findings relied upon by the judge. This serves to properly inform the parties to understand the basis for the decision including whether to exercise any rights to appeal, and correspondingly, reasons facilitate the role of an appellate court to discharge its statutory duty on an appeal from the decision.
[14] In DL v The Queen (2018) HCA 26, [33], Keane J said: -
‘Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.’ (References omitted)
[15] To particularise the point, his Honour quoted with approval from AK v Western Australia (2008) 2 CLR 438, 468 [85] (omitting references), where the High Court said: -
‘Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.’”[23] [citations omitted]
- [12]As Fleming v The Queen (1998) 197 CLR 250 [28] makes it clear, it is not sufficient for a judicial officer to provide reasons for judgment which are merely “… a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, the reasoning process linking them and justifying the latter must be exposed and, ultimately, the verdict that is reached.”
- [13]In respect of principles of law, Fleming v The Queen identified that “… unless the judgment shows expressly or by implication that [a relevant principle of law] was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”[24]
- [14]Fleming v The Queen also makes clear that there is an obligation on the judicial officer in a judge alone trial to show “expressly or by necessary implication” that relevant warnings and/or directions were taken into account.[25]
- [15]In R v FAX [2020] QCA 139, the Court of Appeal (Boddice J with whom Sofronoff P and Ryan J agreed) addressed the issue of a judge alone trial pursuant to section 23 of the Children’s Court Act 1992 (Qld), which relevantly provides that “issues of law and fact are to be decided by a judge as if the trial were a trial on indictment in the Supreme Court”.[26] That provision stands, in contrast, it should be noted, to the provisions of Criminal Code 1899 (Qld) section 615C, which “contains a specific requirement for a judge in a trial without a jury to identify in reasons the principles of law applied by that judge and the findings of fact relied upon in determining whether the defendant is guilty or not guilty.”[27]
- [16]Boddice J goes on to identify the obligations on a trial judge conducting a judge alone trial in the Children’s Court, in terms which are directly applicable, in my view, to a summary trial before a magistrate. His Honour stated: -
“[106] Whilst that provision of the Code [s 615C] specifically does not apply to a trial on indictment in the Children’s Court [Criminal Code, s 615D], the contents of that section are consistent with the common law obligation on any judicial officer to give reasons. That requirement includes obligations to state the relevant principles of law being applied, and the factual findings adopted in the application of those principles.
[107] The duty to give reasons operates as a safeguard to the interests of the accused and the public interest generally [AK v Western Australia (2018) 232 CLR 438, [104] per Heydon J]. As a matter of general principle, the giving of reasons should include an identification of the principles of law and the findings of fact, together with a statement of ‘the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that it reached’ [AK v Western Australia per Gummow and Hayne JJ at [44], siting with approval Fleming v The Queen (1998) 197 CLR 250 [28]].
[108] Whilst no particular formula is necessary, reasons given in a judge only trial should contain details of the evidence admitted at trial, an explanation as to the use made of that evidence, the inferences drawn from that evidence and the judge’s approach to the evidence, with an appropriate identification of the relevant principles of law to be applied in assessing the evidence and in determining whether the prosecution had established the defendant’s guilt of each offence beyond reasonable doubt.”
[109] The form and content of reasons will depend upon the issues in dispute at trial. However, the observations of Gray J in R v R, R and R, LJ are apposite:
‘It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the reasons for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.’
[110] It is incumbent upon a judge presiding over a trial by judge alone to not only direct himself or herself as to the relevant principles, but to record those relevant principles in the reasons for judgment. The recording of those principles does not require that the judge set out the principles in the form of a Benchbook direction to a jury. Benchbook directions, by necessity, are framed on the basis they are given to an audience of lay people. A level of detail is required which it is not necessary to enunciate in the reasons of a judge alone trial.
[111] A failure to refer to a relevant principle of law in those reasons gives rise to two possibilities. First, that the principle was applied but not recorded by the judge; second, that the principle was not applied or overlooked by the judge. If the principle is a relevant principle, the failure to refer to it gives rise to error as it breaches the obligation to record the principles of law applied by the judge in reaching a verdict. If the principle was not applied or overlooked, that also would give rise to error.
[112] Both errors may be a foundation for a conclusion that there has been a miscarriage of justice, necessitating a setting aside of the verdict, although that conclusion will depend on a consideration of all of the circumstances of the particular case.”
- [17]In short, there is, in my view, an obligation on a magistrate in a summary trial to provide reasons which:
- (a)Contain details of the evidence admitted in the trial;
- (b)Explain the use of that evidence;
- (c)Explain any inferences drawn from that evidence;
- (d)Identify the relevant principles of law to be applied in assessing that evidence;
- (e)Direct themselves as to all relevant principles of law and record those principles in the judgment; and
- (f)Determine whether the prosecution has established the defendant’s guilt, beyond reasonable doubt, in respect of each offence.
- (a)
Discussion
- [18]It is useful then to consider the further grounds of appeal filed (by consent) on 14 October 2022.
(a) That there was a failure by the Magistrate to direct himself on the identification evidence.
- [19]Although evidence at the trial was given by the complainant, Kenneth Edward Quimby as well as Senior Constable Claire Nester and Detective Sergeant Gerard McCarthy (with the appellant choosing neither to call evidence as was his right) the key issues in the trial were two-fold, namely:
- (1)Was the appellant, Mr Millar, identified by Mr Quimby as the person Mr Quimby located 200 metres from the entry to the unit complex attempting to load Mr Quimby’s bike into the back of his vehicle, the same male person seen by Mr Quimby when he returned from his appointment trying to ride away on a bicycle at the front of his unit which looked similar to Mr Quimby’s bicycle?
- (2)Given that there was no eyewitness evidence, CCTV footage or other forensic evidence that the appellant entered the secure garage area of the unit complex where Mr Quimby resides and from where Mr Quimby’s bicycle was taken, has the learned magistrate correctly directed himself in respect of the circumstantial evidence in this trial.
- (1)
- [20]Relevantly, in respect of the evidence of the complainant, the magistrate made findings as follows:-[28]
“Regarding the evidence, Mr Quimby gave evidence-in-chief and described his residence, his unit that he was living in at the time as a 10-unit security complex. He described a button or fob on his keyring, which when pushed activates the gate to the garage in his complex. He estimates that the gate takes 10 to 12 seconds to open and a further 10 to 12 seconds to close. Once inside the gate, he and any other person can access his garage space. He leaves his pushbike, a Trek X Caliber 7, as shown in photographs in Exhibit 1, in his garage space, freestanding against the wall.
On the morning of the 27th May 2019, he left the complex in his car with his young daughter to take her to a medical appointment. He could not recall the time he left, but believed it was 8.00 or 9.00 am. Mr Quimby states that before he left, his bike was freestanding against his garage wall. Mr Quimby states that the medical appointment was at Arana Hills. He was questioned about the route he took to return to his residence. The route that he took upon his return was marked on a map, which is Exhibit 2. Mr Quimby stated that upon his return, he saw a bike that looked similar to his out the front of his unit near or on the driveway, with a man trying to ride off on it.
After opening the security gate and driving into his garage, he realised that his bike was missing and realised that the bike that he had just seen was his. Mr Quimby then left the garage and unit complex in an attempt to find his bike. Mr Quimby stated that he drove around a corner to find a man trying to put his bike into the rear of a car. He estimated that it was approximately 200 metres from his complex when he located his bike. Mr Quimby stated that this was the same person that he had seen on the bike when he had arrived home at his residence. Mr Quimby stated that when he confronted this person, this person said that they found the bike. After Mr Quimby took the bike back, this person ran to his car and drove off. Mr Quimby took photos of this vehicle, as shown in Exhibits 3 and 4.
Mr Quimby attended the front counter of the Ferny Grove Police Station a day later, and some days later he was contacted by a police officer from Indooroopilly and asked to come into the station to make a statement. At that time, he participated in a photo-board interview and identified Mr Millar as the man who was on his bike. The photo-board was tendered. That is Exhibit 5.
During cross-examination of Mr Quimby, Mr Millar questioned him at length, at great length, about the photos of Mr Quimby’s bike, which police officer he first made contact with and the route that he took on his return from the doctors to his unit. Mr Quimby was further questioned at length regarding his turning into his complex and what he saw at that stage. Mr Millar in the absence of Mr Quimby stated that he knew ‘for a fact that he’ referring to Mr Quimby, ‘has lied’. Mr Millar stated that it was ‘to do with this detective’, and that is referring to Detective McCarthy, who has ‘a very particular history’ with Mr Millar. Shortly after this and still in the absence of Mr Quimby, Mr Millar stated that the complainant had ‘lied to stich me up’.
Mr Millar did not put to Mr Quimby that he was lying. He did, however [ask] Mr Quimby about his interactions with Detective McCarthy and whether there were ‘a lot of negative comments about Mr Millar from Detective McCarthy’. Mr Quimby responded that he could not recall his conversations with Detective McCarthy from three years ago. It was put to Mr Quimby that he did not initially intend to make a complaint to police. Mr Quimby’s answer to this was ‘why would I have contacted police if that was the case?’”
- [21]The learned magistrate, after reviewing the evidence of Senior Constable Nester, and Detective McCarthy, and noting the defendant had elected not to give evidence, concluded:-
“I find that Mr Quimby was forthright or as forthright as he could be in the face of prolonged and at times convoluted cross-examination. There is nothing to suggest that Mr Quimby lied when giving evidence.”[29] The learned magistrate then concluded:-
‘I find that the only reasonable and logical conclusion from the evidence before this court is that Mr Millar did enter the premises of Kenneth Quimby on the 27th May 2019 with intent to commit an indictable offence, and further that Mr Millar did steal a bicycle the property of Mr Quimby. I am satisfied beyond reasonable doubt that Mr Millar committed both of these offences.’”[30]
- [22]During the photo-board identification,[31] the complainant, Mr Quimby, is asked to look at a piece of paper with 12 photographs of 12 different faces. The complainant says “Mm. I believe it was that man there. That’s here. Yeah – I believe it was him with the helmet on.” Detective Sergeant McCarthy said: “A bike helmet?” and the complainant said, “Yeah, because he had a black hel-uh helmet on at the time.”
- [23]After a discussion about the helmet, the complainant then said, “He looks very similar”, and after indicating that he had chosen number 9 on the photo board (it is uncontested that this is a photograph of the appellant), the complainant was then asked by Detective Sergeant McCarthy “… How certain between on a scale of 1 to 10?” The complainant answered, “Uh. From all these other faces. Mm – probably a 9 to 10.” Detective Sergeant McCarthy asked Mr Quimby, “…So just for the purpose of the interview the person you’ve identified is number 9 and you say that’s the person you took your bike back from?” and the complainant said “Yes”.[32]
- [24]At no stage during that photo board identification process was the complainant specifically asked whether he was identifying the man on the bike leaving his driveway (whom he said was wearing a helmet). As indicated above, the complainant did confirm that he was identifying the man that he encountered around the corner at a car with the complainant’s bicycle. The complainant was not asked whether the man on the driveway, and the man at the car, were the one and the same person.
- [25]In the complainant’s evidence-in-chief, he gave evidence that:-
“I saw a bike that looked similar to mine out the front of my unit with a man trying to ride off on it.”[33]
- [26]The complainant then described exiting the driveway, driving around the corner and finding a man trying to put his bike into the rear of a car. He was then asked this question by the prosecutor: -
“So and the male person who had your bicycle outside the complex, was that the person that you now saw at the vehicle? --- Correct it was.”[34]
- [27]The complainant was further questioned by the prosecutor as follows:-
“Mr Quimby, what observations did you make of the male person? What was your initial observation? --- Fat, grey hair, older.”[35]
And then was asked:-
“And the male person you observed on the 27th of May 2019, was there anything else about him that you remember? --- No.”[36]
- [28]The complainant confirmed his participation in a photo identification process which was video recorded,[37] and then he was asked these questions:-
“And the male person you saw on the 27th of May 2019, is he present here today?” --- “Yes he is”.
“Can you indicate to the court where he is?” --- “Just there.”[38]
- [29]It is clear that identification was an obvious issue in this trial. In particular, there is the equivocation noted in the photo board identification process;[39] the leading question from the prosecutor asking the complainant whether the male person on the bicycle outside the complex was the person that he saw at the vehicle;[40] and the confirmatory dock identification during the course of the trial.[41]
- [30]In those circumstances, a jury in an indictable trial before judge and jury would ordinarily be warned “of the special need for caution before convicting in reliance on the correctness of that identification.”[42]
- [31]The jury would also be given a direction in the following terms:-
“You must examine carefully the circumstances in which the identification by the witness was made. How long did the witness have the person, said to be the defendant, under observation? At what distance? In what light? Was the observation impeded in anyway? Had the witness ever seen the defendant before? If so, how often? If only occasionally had the witness any special reason for remembering the defendant? What time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description given to the police by the witness when first seen and the evidence the witness has now given?”[43]
- [32]The jury would also be warned that when evidence is given by a stranger to the defendant, the evidence of identification should be treated with care, and the jury would have to be satisfied that the identifying witness was not only honest but also accurate, and ordinarily a trial judge would point out what evidence was capable of supporting the visual identification of the defendant, and what if any were the specific weaknesses, with matters of significance identified for the jury by the trial judge. The jury would also of course be specifically warned about the dangers of dock identification.[44]
- [33]In the learned magistrate’s decision in this matter, there has been no articulation whatsoever of any self-direction in respect of identification. The respondent submits this was unnecessary, because the reliability of the identification evidence was not disputed. Respectfully, in a trial with an unrepresented defendant, involving not only identification, with the issues identified above, but also circumstantial evidence, the imperative for self-direction was I consider overwhelming, in at least a short form version of the Bench Book direction extracted above. The broad-brush approach followed by the learned magistrate (in concluding that the complainant’s evidence should be accepted) amounted, I consider, to a failure to adequately articulate the principles of law to be applied in assessing the evidence.
- [34]That failure to self-direct in respect of identification is compounded, given, as noted, that the case against the appellant was substantially circumstantial. Although there is clearly evidence that the magistrate was entitled to accept that the appellant was the person at the car 200 metres from the complainant’s unit, seeking to put the complainant’s bicycle in his car, it was necessary, to prove beyond reasonable doubt each of the offences of enter premises with intent to commit an indictable offence, and stealing, to conclude firstly that the appellant had entered the complainant’s premises (in the absence of any direct evidence that he had done so), and secondly that the appellant had stolen the bicycle that he was in possession of at his motor vehicle some 200 metres away from the unit.
- [35]In those circumstances, the learned magistrate should, in my view, have directed himself, albeit briefly, in terms similar to the direction routinely given by judges in jury trials, namely: -
“To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.
If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.”[45]
- [36]I note again that the learned magistrate has not, in his reasons for decision, directed himself in any way in respect of circumstantial evidence.
- [37]Given my conclusions that the learned magistrate was required to direct himself at least in respect of the identification evidence, and circumstantial evidence, and further that his failure to direct himself in each case was an error in law, it follows that on either or both of those grounds, the appeal must succeed.
- [38]In those circumstances, it becomes unnecessary to consider any further grounds of appeal, whether those grounds that were originally filed by the appellant, or the further ground added by leave, that the learned magistrate had reversed the onus of proof.
- [39]The appeal should be granted, and the matter returned to the Magistrate’s Court for retrial.
Orders
- Appeal granted.
- Convictions in respect of enter premises with intent, and stealing after previous conviction, set aside.
- Remit to the Brisbane Magistrate’s Court for retrial.
Footnotes
[1] Decision 1-6 ll 8-14 (1 June).
[2] Sentencing decision 1-3 ll 1-3.
[3] Notice of appeal filed 4 July 2022.
[4] Exhibit 7 – Supplementary outline of submissions on behalf of the respondent (conviction) [2]-[3].
[5] Court document no. 9 – Outline of submissions on behalf of the respondent [5]-[11].
[6] Transcript 1 March 2022 1-21 ll 27-35.
[7] Transcript 1 March 2022 1-22 ll 19-21.
[8] Transcript 1 March 2022 1-22 ll 24-29.
[9] Transcript 1 March 2022 1-28 ll 39-42.
[10] Transcript 1 March 2022 1-30 ll 1-2, & 32-34.
[11] Transcript 1 March 2022 1-33 ll 5-8.
[12] Transcript 1 March 2022 1-33 ll 36-41.
[13] Transcript 1 March 2022 1-33 ll 35-42 & 1-34 ll1-5.
[14] Transcript 30 June 2022 1-28 ll 1-3.
[15] Transcript 1 March 2022 1-34 ll 20-25.
[16] Mr Quimby did not mention calling the Indooroopilly Police Station in his evidence in chief, but accepted that he had called Indooroopilly Police Station in cross-examination. The appellant made issue of the call to Indooroopilly Police Station in the trial.
[17] Transcript 30 June 2022 1-33 l 27.
[18] Transcript 30 June 2022 1-114 ll 41-43.
[19] Transcript 1 July 2022 2-8 ll 33-39.
[20] Transcript 30 June 2022 1-61 ll 7-8.
[21] Justices Act 1886 (Qld) (‘JA’) s 222.
[22] Forrest v Commissioner of Police [2017] QCA 132, 5.
[23] Cummins v Guilfoyle [2021] QDC 127 [12]-[15].
[24] Fleming v The Queen (1998) 197 CLR 250 [28]-[30].
[25] Fleming v The Queen (1998) 197 CLR 250 [37].
[26] Children’s Court Act 1992 (Qld) s 23.
[27] R v FAX [2020] QCA 139 [104] – [105].
[28] Decision 1-3, ll 32-1-4, l 38.
[29] Decision 1-5, ll 41-44.
[30] Decision 1-6 ll 8-13.
[31] Trial exhibit 13 – CD-photo interview.
[32] Trial exhibit 13 – CD-photo interview.
[33] Transcript 1-33 ll 5-7.
[34] Transcript 1-33 ll 43-44.
[35] Transcript 1-37 ll 15-16.
[36] Transcript 1-37 ll 24-25.
[37] Transcript 1-39 ll 8-9.
[38] Transcript 1-40 ll 16-22.
[39] Trial Exhibit 13.
[40] Transcript 1-33 ll 43-44.
[41] Transcript 1-40 ll 19-22.
[42] Supreme and District Court bench book No. 51.1; Domican v The Queen (1992) 173 CLR 555.
[43] Supreme and District Court bench book No. 51.1.
[44] Supreme and District Court bench book No. 51.2 & 51.6.
[45] Supreme and District Court bench book No. 48.1.