SRJ v Commissioner of Police[2024] QDC 224

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 14 June 2023, the appellant was convicted of assault occasioning bodily harm and contravening a domestic violence order.  Those charges arose out of events on 28 January 2022.  He was also charged with contravening a domestic violence order on 21 December 2021.  He was acquitted of that charge.  The trial proceeded on 14 and 15 March 2023 at the Magistrates Court of Brisbane. 
2. [2]
   The appeal is pursuant to section 222 Justice Act 1886 (Qld).  The appeal is by way of rehearing on the evidence pursuant to that Act.  There are two grounds of appeal by leave, the initial ground being abandoned.  The two grounds are conceded by the respondent.  In my view, having had the benefit of some further discussion this morning, the concessions are properly made and the appeal must be allowed. 
3. [3]
   The first ground is that the presiding Magistrate erred in relying on inadmissible evidence of a prior consistent statement made by the complainant.  Only the complainant and appellant were present at the time of the events giving rise to the charges.  The complainant gave evidence.  Also, a number of police officers gave evidence and tendered body-worn camera video.  It is one of the body-worn camera videos that was taken into account which gives rise to the first ground. 
4. [4]
   In considering the evidence relating to the events of 28 January 2022, the learned Magistrate made a remark that the complainant was interviewed by a Constable Wilson at the scene and his evidence-in-chief was largely consistent with what he had told Senior Constable Wilson at the scene.  Later in the reasons, the learned Magistrate repeated that the complainant was terribly upset and crying when being interviewed by the police on the incident day and that his version of the incident was consistent with his version that he gave in evidence and he was not shaken in cross-examination. 
5. [5]
   There really was a contest of credibility about what happened and, in resolving it, the learned Magistrate took into account, in effect, a prior consistent statement which was inadmissible.  It might be that the learned Magistrate has misspoken about the name of the officer who took the relevant video, but that is neither here nor there.  The appellant was self-represented at trial.  The evidence was led without objection, but he would not have known to object.  It might be that the court below was mistakenly of the view that the evidence was admissible because of the provisions of part 6A of the Evidence Act 1977 (Qld), in particular, division 2, which provides for recorded statements as complainant’s evidence-in-chief in domestic violence proceedings.  This hearing, having been conducted in Brisbane, was not one of the places prescribed by regulation under the definition of domestic violence proceeding in section 103C.  This was not, therefore, for the purposes of that Act, a domestic violence proceeding, and the evidence was not admissible. 
6. [6]
   On one view of it, it was not being relied on as the evidence-in-chief, in any case, but that is really just a practical matter about the way the evidence was presented in court.  So that ground will succeed, not just because, in the abstract, inadmissible evidence was admitted, but because in the particular circumstances of this case it led to a miscarriage because it is inescapable that the statement recorded at the scene affected the tribunal of fact’s reasoning. 
7. [7]
   Ground 2 is that there was legal error because the appellant was required to give a closing address first, and then the prosecutor was allowed to give an address in reply, contrary to section 619 Criminal Code 1899 (Qld).  Section 148 Justice Act 1886 (Qld), which governed the proceeding, provides that:

“The practices before Justices upon the hearing of a complaint of a simple offence shall, in respect of the examination and cross-examination of witnesses and the right of addressing the Justices upon the case, in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.”

8. [8]
   That is governed by section 619 Criminal Code 1899 (Qld), which I will not set out, but which, in the case of a self-represented accused person who does not go into evidence, permits the accused to address the jury but not the prosecution a right of reply. That was, among other cases, confirmed in R v Handlen [2010] QCA 371 at [118] and [119] in the judgment of Holmes JA.  To be complete about it, as counsel for the appellant points out in his outline, the police prosecutor was not a Crown law officer and had no right of reply. 
9. [9]
   It was also submitted, and I accept, that apart from the arguably fundamental defect in the proceeding by allowing the prosecutor to address after the evidence where a self-represented defendant had not gone into evidence, the unfairness was compounded by directing the defendant to go first and giving the police prosecutor the right of reply.
10. [10]
    I am satisfied that the error has been made out and that, therefore, the appeal should be allowed, and the orders will be that the decision of the Magistrate is set aside – that is to say the decision convicting the appellant of the two charges is set aside and the proceeding is sent back to the Magistrates Court at Brisbane for rehearing before a different magistrate.