BDP v Commissioner of Police [2026] QDC 101

DISTRICT COURT OF QUEENSLAND CITATION: BDP v Commissioner of Police [2026] QDC 101 PARTIES: BDP (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO: No. 322 of 2026 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 24 July 2026 DELIVERED AT: Brisbane HEARING DATE: 20 July 2026 JUDGE: Grigg DCJ ORDER: 1. The appeal be allowed. 2. The conviction entered by the learned Magistrate be set aside. 3. In substitution, a verdict of not guilty be entered, and the appellant be discharged. 4. The appellant's name be anonymised in the Court's reasons for judgment and in any transcript of the appeal hearing provided to those other than the parties CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was found guilty in the Magistrates Court of obstructing a police officer – where the appellant was subject to an examination authority under the Mental Health Act 2016 (Qld) – where police officers assisted the mental health practitioners in enacting the examination authority – where police officers entered the appellant’s residence to enact the examination authority – where there was no direct evidence of the currency of the examination authority when it was enacted – where the appellant argued that without a valid examination the police officers were not lawfully performing their duties – whether the learned Magistrate could reasonably draw an inference that the examination authority was valid beyond a reasonable doubt -- 1 of 16 -- 2 LEGISLATION: Justices Act 1886 (Qld) ss 222, 223, 225 Mental Health Act 2016 (Qld) ss 32, 33, 34, 157, 502, 504, 505 Police Powers and Responsibilities Act 2000 (Qld) ss 16, 790 CASES: Barbina v McKenzie [2026] QCA 134 Browne v Dunn (1893) 6 R 67 (HL) Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 House v The King [1936] HCA 40; (1936) 55 CLR 499 MBR v Parker [2012] QCA 271 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 R v K [1993] FCA 830; [1993] 118 ALR 596 R v Miller [2021] QCA 126; (2021) 8 QR 221 COUNSEL S. Bloom for the appellant J. Beckam (solicitor) for the respondent SOLICITORS: Mulcahy Ryan Criminal Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent Background [1] On 9 July 2025, a mental health practitioner, Helena Dolibasic, from Queensland Health, attended the appellant’s residence together with four police officers. The mental health practitioner attended pursuant to an examination authority (EA) ordered under the Mental Health Act 2016 (Qld) (MHA). When the appellant refused to open the door, the police entered the property and detained the appellant. When the police entered the property, the appellant was hiding in her bathroom and was holding two knives. When she refused to put the knives down, she was tasered by an officer, handcuffed and ultimately taken to hospital by paramedics. [2] Following the incident, the appellant was charged with obstructing a police officer pursuant to section 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). [3] The matter was heard in the Magistrates Court on 27 January 2026. The appellant pleaded not guilty. The appellant contended there was no lawful basis for the police to have entered the property and that therefore the elements of the charge brought against her were not proven. [4] The magistrate found the appellant guilty. No conviction was recorded, and she was ordered to be released upon entering into a recognisance for $300, conditional upon her keeping the peace and being of good behaviour for a period of three months. [5] On 5 February 2026, the appellant filed an appeal against the conviction pursuant to s 222 of the Justices Act 1886 (Qld) (Justices Act). -- 2 of 16 -- 3 Appeal Process and Principles [6] A person who is aggrieved by a decision made by a justice in a summary way on a complaint for an offence or breach of duty may appeal within 1 month after the date of the order to a District Court judge under s 222 of the Justices Act. [7] Section 223(1) of the Justices Act sets out the hearing procedure on appeal: (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. [8] The powers the Court has on appeal are set out in s 225 as follows: (1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just. (2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration. (3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against. (4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order. [9] On appeal, the onus is on the appellant to demonstrate that there has been some legal, factual, or discretionary error made by the court below.1 [10] It must be shown that there has been some error either in acting upon irrelevant matters or failing to take into account a material consideration. [11] The appeal must be determined based on the evidence and proceedings presented before the Magistrates Court. [12] In determining whether the learned Magistrate has erred, it is important to keep in mind the words of the High Court, in relation to discretionary decisions, in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505 that: “It is not enough that the judges composing the appellate Court consider that, if they have been the position of the primary judge, they would take a different course.” [13] There is no contest in relation to the credibility of the witnesses in this matter. The issue is whether there was sufficient evidence to prove the charge beyond a reasonable doubt. 1 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612, at 627 [47]. -- 3 of 16 -- 4 [14] The issue for determination is whether, having regard to the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.2 [15] The appellant must “identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted”: R v Miller [2021] QCA 126; (2021) 8 QR 221, at [18]. [16] The appellant submitted that the learned Magistrate erred as follows: 1. His Honour erred in finding that he could infer the examination authority (EA) was properly enacted within 7 days of the EA being made in the absence of the EA being produced at Trial. 2. In the absence of proof of the EA being enacted within 7 days, there was no lawful authority for Police, in supporting authorised mental health practitioners, to enter the Appellant’s home. 3. The learned Magistrate erred in inferring that the EA was properly enacted within 7 days by accepting the evidence of an authorised mental health practitioner as a truthful witness. 4. The learned Magistrate erred in drawing the inference in the absence of the authorised mental health practitioner giving as to the date of the making of the EA. Examination Authorities and Police Powers [17] For an EA to be issued, an application must be made under s 502 of the MHA. [18] The following persons may apply to the mental health tribunal for an authority (an examination authority) for another person:3 (a) the administrator of an authorised mental health service; (b) a person authorised in writing by the administrator of an authorised mental health service to make an application under this section; (c) a person who has received advice, from a doctor or authorised mental health practitioner, about the clinical matters for the person who is the subject of the application. [19] If a person is subject to an EA, s 32 of the MHA sets out the powers of a doctor or authorised mental health practitioner. Relevantly, a doctor or authorised mental health practitioner may enter a place, detain and examine the person without that person’s consent, either at the place or at an authorised health facility. 2 Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, at [43]. 3 Mental Health Act 2016 (Qld) s 502(1). -- 4 of 16 -- 5 [20] As a public health official, a doctor or authorised mental health practitioner may exercise their powers under s 32 with the help of a police officer under ss 33 and 34 of the MHA. [21] The powers of a police officer while helping a public official, can be found in s 16 of the PPRA, which provides: 16 Helping public officials exercise powers under other Acts (1) This section applies if an Act (authorising law) authorises a public official to perform functions in relation to a person or thing. (2) However, this section only applies to a police officer who is not a public official for the authorising law. (3) If a public official asks, a police officer may help the public official perform the public official’s functions under the authorising law. (4) Before the police officer helps the public official, the public official must explain to the police officer the powers the public official has under the authorising law. (5) If the public official is not present or will not be present when the help is to be given, the police officer may give the help only if the police officer is satisfied giving the help in the public official’s absence is reasonably necessary in the particular circumstances. (6) The police officer has, while helping a public official, the same powers and protection under the authorising law as the public official has. (7) Subsection (6) is in addition to, and does not limit, the powers and protection a police officer has under this or any other Act. [22] Pursuant to s 505 of the MHA, an EA is only in force for 7 days after the day it is issued. [23] A police officer's powers to assist a public health official in the performance of their powers under the MHA cease when the EA expires, because once the EA is no longer in force, the authorised mental health practitioner is no longer empowered under s 32. The police officer’s power to assist an authorised mental health practitioner under the MHA is derivative or adjunct to the powers of the authorised mental health practitioner. [24] This is evident from section 16(4) of the PPRA, which expressly provides that before the police officer assists the public official, the public official must explain to the police officer the powers the public official has under the authorising law. [25] If the EA was not valid, it could not have been used to justify the police officers’ involvement and entry into the appellant’s home. [26] The burden of proving the EA was valid rests on the prosecution. It is for the prosecution to establish there was a lawful right of entry into the appellant’s premises. -- 5 of 16 -- 6 Appellant’s Submissions [27] The appellant submitted the prosecution was required to establish, as an element of the charge under s 790(1)(b), that the EA was valid and in force. The appellant submitted the prosecution failed to do so. [28] The appellant points to: (a) the fact that the EA was not tendered at the trial; (b) the evidence of Senior Constable Lochran. SC Lochran was one of the police officers assisting the mental health practitioner enact the EA at the appellant’s premises. He gave evidence that he could not recall seeing the EA although he said he was told it was “current”;4 and (c) the evidence of the mental health practitioner, Ms Dolibasic, was, at its highest, that she had possession of the EA and was present at the premises to enact it. [29] The appellant submitted this evidence was insufficient to establish guilt beyond a reasonable doubt and, in the absence of evidence, the learned Magistrate speculated as to the validity of the EA. Respondent’s Submissions [30] The respondent acknowledged that there was no EA tendered by the prosecution at trial. [31] However, the respondent submitted that: (a) Ms Dolisbasic’s evidence was that she was in possession of a “valid” Examination Authority at the relevant time (Validity Submission); (b) there was no suggestion put by the appellant to the witnesses in cross- examination that the EA was invalid (Browne v Dunn submission); (c) the learned Magistrate inferred the EA was valid and submitted he was entitled to do so because he had accepted the evidence of Ms Dolibasic and her evidence was the best evidence available (Reasonable inference submission); and (d) by way of analogy with a search warrant, that the EA need not be tendered at trial to prove the existence of that power, unless the warrant or EA’s legitimacy was in dispute (Search Warrant Analogy). Consideration The Charge [32] The appellant was charged with obstructing a police officer pursuant to s 790(1)(b) of the PPRA. Section 790(1)(b) provides relevantly as follows: 4 Transcript of Magistrates Court proceeding of 27 January 2026, at page 1-30, lines 20 to 26. -- 6 of 16 -- 7 (1) A person must not— … (b) obstruct a police officer in the performance of the officer’s duties. Maximum penalty— … (b) otherwise—40 penalty units or 6 months imprisonment. [33] It is an essential element of this offence that the officer was acting lawfully in the execution of their duty when they were obstructed.5 Acting unlawfully, outside the lawful performance of their duties, means an element of the offence has not been proven.6 [34] The prosecution alleged that on 9 July 2025, the Appellant obstructed SC Lochran in the performance of his duties. SC Lochran attended the Appellant’s residence in East Brisbane, to assist Ms Dolibasic to enact an EA pursuant to section 34 of the MHA. The appellant did not allow Ms Dolibasic or SC Lochran entry to the house. A locksmith was called and, ultimately, SC Lochran entered the residence. The appellant obstructed SC Lochran in the performance of his duties when she held two kitchen knives in her hands and refused to drop them when instructed to by the police officers. The Evidence [35] The prosecution called two witnesses to give evidence: (a) Helena Dolibasic, a mental health practitioner; and (b) Senior Constable Christopher Lochran, the complainant. [36] The parties agree to the following summary of evidence.7 “[11] Helena Dolibasic is a clinical nurse who attended the Appellant’s address on 9 July 2025 in the company of a colleague to enact an Examination Authority. Police assistance to do so. [12] Ms Dolibasic gave evidence that on attending the Appellant’s address, she knocked on the door. She said the wooden door was open, but the screen door remained closed and locked. Ms Dolibasic introduced herself to the Appellant and told her the purpose of the visit, including that she was currently under the “Mental Health Act”. She said she attempted to show the Appellant a copy of the Examination Authority, which she held in her hands, through the screen door. According to Ms Dolibasic, the Appellant then closed the door and refused to engage further. She said that, 5 Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1. 6 Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247, at [32]-[33], [82]. 7 Appellant’s Submissions, [11]-[17] -- 7 of 16 -- 8 following this, she requested police assistance to help enact the Examination Authority. [13] In cross-examination, Senior Constable Lochran’s body worn camera footage was played. Ms Dolibasic accepted that the Examination Authority was in fact inside a blue folder she was holding. She said she did not recall whether she explained the contents of the Examination Authority to the Appellant. Although she initially said she had a clear recollection of holding the paper up and showing it through the door, Ms Dolibasic ultimately conceded that she did not hold the Examination Authority up for the Appellant to read it. Ms Dolibasic also accepted that she did not explain the powers under the MHA to any attending police and did not recall her colleague doing so either. [14] Dolibasic accepted that she had not provided a witness statement ahead of the proceeding. She did not produce a copy of the Examination Authority at the hearing and said she was not asked to bring it. In fact, during the course of Ms Dolibasic’s evidence, the learned magistrate enquired with the prosecution whether they wanted to tender a copy of the order. The prosecution replied they did not have a copy to do so. [15] In fact, the extent of the evidence about the Examination Authority came from Ms Dolibasic’s evidence. When asked about enacting the Examination Authority, Ms Dolibasic said: “So when we... enact ... an examination ... authority, it means that ... we obviously —sort of look at the —the paperwork itself, that it’s valid, the legal documentation ... and that it’s accurate and it’s been ... approved by the Mental Health Review Tribunal before we actually go out, so it’s a legal piece of paper... and then we have ... seven days to enact this ... and then we obviously ... then we sort of ... make the time to enact it”(disfluencies omitted) [16] Senior Constable Lochran gave evidence that a request was received from the vulnerable persons unit to assist in relation to an Examination Order on 9 July 2025. Upon arriving at the location, he observed mental health practitioners attempting to engage with the Appellant at the front door, “to which the door was closed”. Senior Constable Lochran said that access to the premises was then gained through a qualified locksmith. He said he walk-through the premises and entered a bedroom, which led into a bathroom. When he pushed the door open, he said he was “met with” the Appellant holding two large knives in a “somewhat threatening manner”. He said he drew his service issued firearm and gave clear instructions for the Appellant to drop the knives. A taser was then deployed from his left shoulder. The Appellant was subsequently restrained and taken into police custody. He said that when he gave the command, the Appellant said words to the effect, “just shoot me”. [17] In cross-examination, Senior Constable Lochran, when asked, said he had been advised there was an Examination Authority that was “current”, but could not recall whether he had seen it himself. He stated that he had been explained the powers that Ms Dolibasic (and her colleague) had at the time -- 8 of 16 -- 9 of enacting the Examination Authority. He did not believe the Appellant had been given an opportunity to explain why she would not open the door, stating that when police encountered her, he was “confronted with two knives”. Senior Constable Lochran conceded that he did not ask the Appellant to provide a reasonable excuse for her refusal to allow entry to the premises.” Respondent’s Validity Submission [37] Ms Dolisbasic’s evidence about the EA went as follows:8 “I had requested - uh - not myself personally, but someone from the team, obviously, that was rostered that day had requested police assistance to help us enact, uh, the examination authority, uh, for our safety. When you say “enact the examination authority”, can you just detail in your own words what that means, and when you were - what that means?---So when we - um - enact, uh, an examination author- authority, it means that, uh, we obviously - um - sort of look at the - the paperwork itself, that it's valid, the legal documentation, uh, and that it's accurate and it's been - um - approved by the Mental Health Review Tribunal before we actually go out, so it's a legal piece of document. Um - and then we have, you know, seven days to enact on this - um - and then we obviously, uh, then we sort of - um - make the time to enact it.” (emphasis added) [38] The reference to “valid” refers to what checks are usually performed by someone in the Princess Alexandra Hospital QCare team when they receive an EA. This is not direct evidence of what happened with respect to this EA. Ms Dolisbasic did not give evidence that she had been the QCare team member who checked the EA sought to be enacted against the appellant. [39] SC Lochran did not recall being shown the EA. [40] There is no direct evidence the EA was valid and in force. Respondent’s Browne v Dunn Submission [41] The prosecution submitted that the issue of validity was not put to the witnesses, relying on the rule in Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn). [42] The rule in Browne v Dunn is based on principles of fairness. That is, that a party should put to a witness any matter which it intends to raise to contradict that witness’ evidence. By putting the contradictory matter in evidence to a witness, the witness is 8 Transcript of Magistrates Court proceeding on 27 January 2026, at page 1-5, lines 5 to 17. -- 9 of 16 -- 10 given the opportunity to refute the proposition or for the other party to call additional evidence if necessary.9 [43] As outlined above, there is no evidence from the witnesses who were called at trial that the EA was current and in force. SC Lochran had no recollection of the EA being shown. He recalled only being told it was “current” but did not know who told him. There is no evidence he or any other police officer checked the currency of the EA. [44] The rule in Browne v Dunn has no application here. The burden of proof rests entirely on the prosecution. The appellant did not have any direct knowledge of the validity or otherwise of the EA. In Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at [67] Pidgeon J said: “There is no requirement to cross-examine on matters of which the defendant or witnesses proposed to be called has no knowledge…” [45] It was not the burden of the appellant to ask the witnesses questions about the EA’s validity and currency. This was an element that the prosecution had to prove. Neither witness called gave direct evidence on this issue. [46] The rule in Browne v Dunn operates on evidence given. It is not concerned with manufacturing evidence on a topic the witness never addressed. If the witness said only, “I have the authority in my possession” and said nothing about when it was issued, its duration, or whether it was still current, there was nothing on those specific matters for the other side to challenge. Absence of cross-examination on a fact that was never asserted cannot be treated as an admission of, or evidentiary support for, that fact. You cannot fail to challenge something that was never put. The rule does not shift the onus of proof onto the appellant.10 [47] In Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351, Kiefel CJ, Keane and Gleeson JJ observed: “[29] The difficulty respecting the rule in criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed. Criminal proceedings are not only adversarial. In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so. The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings. Moreover, fairness in the conduct of a criminal trial may have a different practical content and require more restraint on the part of a prosecutor.” (emphasis added) 9 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 22-23; see also the High Court’s decision in MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, at [38]: “The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.” 10 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; R v Birks (1990) 19 NSWLR 677. -- 10 of 16 -- 11 [48] See also MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, at [18]: “…[the principle of fairness as stated in Browne v Dunn] may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross- examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings” [49] The Court of Appeal in Barbina v McKenzie [2026] QCA 134 noted: “[31] The rule does not require that there be put to the witness in cross- examination every point upon which his or her evidence might be used against him or her or against the party who calls the witness; it is not a rule designed to encourage or condone excessive cross-examination.” [50] The prosecution was on notice that each element of the charge needed to be proven beyond a reasonable doubt. The plea of not guilty is itself notice of the evidence in contest.11 [51] At the appeal hearing, the respondent acknowledged that the legal representative for the appellant, Mr Ryan, commented to the learned magistrate to the effect that no one could be sure the EA was current and in force and that there was an argument that the entry by police was unlawful. Reasonable Inference Submission [52] The burden of proving a defendant’s guilt rests on the prosecution. The appellant does not have to prove her innocence. The appellant is presumed innocent unless the prosecution has established the guilt of the appellant beyond reasonable doubt. Each element or component of an offence must be proven beyond reasonable doubt before the appellant can be found guilty of the charge.12 [53] If there is a reasonable doubt about guilt in respect of the offence, the appellant must be found not guilty.13 [54] Reasonable inferences may be drawn provided those inferences are based on facts found to be proven by the evidence. There must be a logical and rational connection between the facts found and any deductions or conclusions drawn.14 [55] The learned magistrate accepted Ms Dolibasic’s evidence that she had an EA in her possession when attending the appellant’s residence and that she attempted to show it to the appellant but was unsuccessful. This evidence is corroborated by body-worn camera footage taken by SC Lochran. 11 Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32, at [45]. 12 Supreme and District Courts Criminal Directions Benchbook Chapter 60. 13 Ibid. 14 Supreme and District Courts Criminal Directions Benchbook Chapter 23. -- 11 of 16 -- 12 [56] The EA was not tendered. There was no evidence of the date the EA was issued and the date by which it would have expired. The issue is whether it was permissible for the learned Magistrate to infer the EA was valid or whether that was an impermissible assumption/speculation. [57] There is a distinction between permissible inference and conjecture which is sometimes difficult to distinguish.15 [58] The learned Magistrate described the police brief as “parlous” and “sloppy”. He accepted Ms Dolibasic’s evidence and then found:16 “I would be absolutely certain if l saw a copy of the examination authority that she did have the authority, which expired within a seven-day period, to go and do it. But I do not have that because in my view, sloppy policing has not turned that document up.” [59] The learned Magistrate was satisfied beyond reasonable doubt that the EA was valid because of his: (a) acceptance of Ms Dolibasic’s evidence; and (b) acceptance that the relevant powers had been explained to the police. [60] The EA was not before the learned Magistrate because the police could not locate it. The learned Magistrate described this as “sloppy policing” and noted that he did not blame the appellant for taking the matter to trial. [61] The respondent accepts the learned Magistrate inferred the EA was valid and submitted he was entitled to do so as he accepted the evidence of Ms Dolibasic and her evidence was the best evidence available. [62] The appellant contends the learned Magistrate speculated as to that fact and did so in error, in the absence of any admissible evidence to support it. It follows that the essential element was unproven, and the conviction was not open on the evidence. [63] Was the inference that the EA was valid open based on the evidence of Ms Dolibasic? [64] There is direct evidence from Ms Dolibasic that she was carrying an EA when she attended the appellant’s residence. She can be seen carrying a blue folder with the title “Examination Authority” on the cover in the body-worn camera footage of SC Lochran. [65] There was no evidence from any witness as to the date of the document. There is no way of knowing whether the EA was valid. [66] The learned Magistrate has assumed that the police would not have entered if the authority was invalid. But that is not a reasonable inference that can be drawn from the facts found. There is no evidence as to the contents of the EA. The finding of the 15 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [84]; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170. 16 Magistrate’s reasons of 27 January 2026, at page 1-2, lines 30 to 33. -- 12 of 16 -- 13 learned Magistrate rests on a presumption that the mental health practitioner and the police would not have acted otherwise. [67] This is not a reasonable inference that can be drawn from the evidence in this matter. SC Lochran could not recall whether he even looked at the EA. [68] Ms Dolibasic may be accepted as an honest witness. It does not cure the lack of evidence about the currency and validity of the EA. She spoke only generally about the QCare team's usual procedures. Accepting that evidence of the usual protocols of the QCare Team does not establish that those protocols were followed here. The standard of proof is beyond reasonable doubt. Search warrant analogy [69] The respondent submitted, by way of analogy with a search warrant, that the document need not be tendered at trial to prove the existence of that power, unless the warrant or EA’s legitimacy was in dispute. [70] In my view the search warrant analogy is not apt. A search warrant is issued where there are reasonable grounds to suspect there is warrant evidence or property at a place.17 A police officer may lawfully exercise the powers set out in s 157 of the PPRA, such as the power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section. [71] Search warrants, like EA’s, have time constraints after which the authority to search lapses. However, and it is not necessary to go into detail about this here, material seized on an expired warrant may still be admissible. That is, the validity of a search warrant is concerned with the admissibility of a thing seized in purported reliance upon it. There are different consequences on expiration between an EA and a search warrant. [72] The issuance of a search warrant is not an essential element of a crime. [73] Here, a valid EA is an essential element which must be proven before the appellant can be found guilty of an offence under s 790(1)(b) of the PPRA. Conclusion [74] It was for the prosecution to establish each element of the offence beyond a reasonable doubt. The tendering of the EA would have cured any concerns concerning the EA’s validity and currency. No witness statements of the mental health practitioners present at the appellant’s residence were taken. I concur with the learned Magistrate that this was “sloppy and unhelpful”. [75] No explanation was given for why the EA could not be found. His Honour was simply told the prosecution did not have a copy. [76] In these circumstances, there was no reasonable basis to assume the EA was valid. It is possible the EA, if tendered, was not current at the time of its execution. 17 See Police Powers and Responsibilities Act 2000 (Qld) ss 150-158.. -- 13 of 16 -- 14 [77] The evidence does not establish when the EA was issued, its contents, whether it was validly issued, and whether it was current. [78] Ms Dolibasic’s evidence was that she did not recall explaining the powers to police. The learned Magistrate found this was cured by SC Lochran’s evidence that someone explained the powers to him and concluded:18 “…the moments just before the police entered and after the defendant had become belligerent perhaps, [Ms Dolibasic] did say to the defendant, “Open the door, and come with us and see one of the doctors.” That, together with reference to mental health or allowing for entry into the property, in my view, was sufficient to enliven the authority and to enliven the act of entry.” [79] That, with respect, is not sufficient to enliven the authority to entry if the EA was not current. The learned Magistrate referred to R v K [1993] FCA 830; [1993] 118 ALR 596 as authority that provided police are acting within the ambit of their authority, they will be acting lawfully in the performance of their duties. The fact that the SC Lochran “believed he was carrying a lawful duty” is not relevant to the validity of the EA or the lawfulness of the police in assisting with its enactment. [80] Here, the evidence was insufficient to establish what the ambit, if any, of that authority was. [81] Grounds 1, 3 & 4Grounds 1, 3 and 4 of appeal advanced by the appellant were that the learned Magistrate erred in finding that the learned Magistrate could infer the EA was properly enacted within 7 days of the EA being produced at trial by: (a) accepting the evidence of an authorised mental health practitioner as a truthful witness; and (b) in the absence of the authorised mental health practitioner giving as to the date of the making of the EA. [82] Based on the above, I find that the learned Magistrate erred in finding that he could infer the EA was properly enacted within 7 days of the EA being produced at trial. Ground 2 [83] Ground 2 of the grounds of appeal advanced by the appellant was that, in the absence of proof of the EA being enacted within 7 days, there was no lawful authority for police, in supporting authorised mental health practitioners, to enter the appellant’s home. [84] The element of the charge that the police officers were acting lawfully in the performance of their duties was not proven beyond a reasonable doubt. Application for Anonymisation [85] The appellant made an application during the appeal hearing for an anonymisation order. This was not opposed by the respondent. 18 Magistrate’s reasons of 27 January 2026, at page 1-3, lines 8 to 12. -- 14 of 16 -- 15 [86] In order for such an order to be made, “the interests of justice [must] so clearly favour anonymisation as to outweigh the public interest in open justice”.19 [87] The matter, while not proceeding in the Mental Health Court, concerns the exercise of an examination authority for mental health reasons. When these authorities are exercised, they deprive the individual of any right to resist or make decisions about their mental health. [88] In MBR v Parker [2012] QCA 271, the Court of Appeal considered an application for anonymisation because a party’s medical records were in evidence. The Court noted that its decision would be published on the internet and accessible to all. In the circumstances, the Court considered it appropriate to make an order that the appellant’s name be anonymised in the Court’s reasons for judgment and in any transcript of the appeal hearing provided to those other than the parties. [89] In my view, although it is not the appellant’s medical records in evidence, what is in evidence is that the appellant was to be subject to an EA. Pursuant to s 504 of the MHA, an EA is only issued where: (a) the person has, or may have, a mental illness; and (b) the person does not, or may not, have capacity to consent to be treated for the mental illness; and (c) either— (i) reasonable attempts have been made to encourage the person to have a voluntary examination relating to the person’s mental illness; or (ii) it is not practicable to attempt to encourage the person to have a voluntary examination relating to the person’s mental illness; and (d) there is, or may be, an imminent risk, because of the person’s mental illness, of— (i) serious harm to the person or someone else; or (ii) the person suffering serious mental or physical deterioration. [90] In addition to the information surrounding the enactment of an EA in relation to the appellant, there is also a reference in the evidence to the appellant making threats of harm towards the Prime Minister. This was stated by a person in the body-worn camera footage who was not called to give evidence, as a basis for the EA having been issued. I note here, importantly, that the basis for the EA having been issued, and the alleged threats, have not been proven and the appellant has not been charged with anything to do with those alleged threats. [91] In these circumstances, it is appropriate for the appellant’s privacy to be protected through the making of an anonymisation order. 19 MBR v Parker [2012] QCA 271, at [5]. -- 15 of 16 -- 16 Orders [92] For these reasons, I make the following orders: 1. The appeal be allowed. 2. The conviction entered by the learned Magistrate be set aside. 3. In substitution, a verdict of not guilty be entered, and the appellant be discharged. 4. The appellant's name be anonymised in the Court's reasons for judgment and in any transcript of the appeal hearing provided to those other than the parties -- 16 of 16 --