Bayliss v Commissioner of Police [2024] QDC 22

DISTRICT COURT OF QUEENSLAND CITATION: Bayliss v Commissioner of Police [2024] QDC 22 PARTIES: BAYLISS, Gary Andrew (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D13/2023 DIVISION: Criminal PROCEEDING: Section 222 Appeal hearing ORIGINATING COURT: Magistrates Court at Gympie DELIVERED ON: 19 March 2024 DELIVERED AT: Gympie HEARING DATE: 11 March 2024 JUDGES: Long SC DCJ ORDER: Each of the orders convicting and not further punishing the appellant for the offences dealt with in his absence in the Magistrates Court at Gympie on 14 August 2023, is set aside and in each instance the charge upon which such order was made is sent back to the Magistrates Court at Gympie to be determined according to law. It is directed that the appellant is to personally appear at the Magistrates Court at Gympie at 9.30am on 25 March 2024. CATCHWORDS: CRIMINAL LAW – Appeal – Appeal against conviction pursuant to s 222 Justices Act 1886 (Qld) - Where the appellant was convicted of summary offences under Police Powers and Responsibilities Act 2000 (Qld) and s 33 Bail Act 1980 (Qld) and not further punished – Where the hearing was continued and the determinations and orders made in the appellant’s absence – Where the appellant was self-represented – Whether the Magistrate erred in convicting the appellant COUNSEL: Appellant self-represented R. Byrne for the Respondent SOLICITORS: Appellant self-represented Office of the Director of Public Prosecutions for the Respondent -- 1 of 23 -- Introduction [1] On 14 August 2023, the appellant was dealt with in the Magistrates Court at Gympie in respect of five offences of failing to appear in accordance with an undertaking (pursuant to s 33(1) of the Bail Act 1980 and arising on various dates) and also offences of obstruct police (pursuant to s 790(1)(b) of the Police Powers and Responsibilities Act 2000 – “PPRA”), assault police (pursuant to s 790(1)(a) of the PPRA) and contravene direction or requirement (pursuant to s 791(2) of the PPRA), each alleged to have occurred on 14 November 2022. Although there may be some issues in respect of any provision in the Justices Act 1886 under which the Magistrate proceeded, a central feature of this matter is an understanding that the appellant was dealt with for all of those offences when he was not present before the Court, with the result that the orders were that he was convicted and not further punished in respect of each offence. [2] By Notice of Appeal filed 7 September 2023, the appellant appeals against the orders made on 14 August 2023 and an expressed concern in the notice is that he was “convicted – served unlawful imprisonment”, with the further notation under the heading in respect of his grounds of appeal being: “See attached documents. Miscarriage of justice – 14/6/2023. Wrongful arrest – 14/6/2023 – false imprisonment 14/6/2023 – Re: Williams (1986) 161 CLR 278. Illness of applicant – 14/6/2023 ETC.” [3] It is useful to first set out some relevant history of the proceedings in respect of the offences dealt with on 14 August 2023, as may be gleaned from the endorsements on the variously relevant Bench Charge Sheets in the records of the Magistrates Court at Gympie and which are before this Court for this appeal: (a) The appellant was charged with an offence of fraud and released on a bail undertaking. The first allegation is that he failed to appear in respect of that proceeding, as required on 31 January 2022 and it is understood that he was subsequently arrested on a warrant which was then issued. (b) On 10 March 2022 the appellant was brought before the Court. He was noted to be in custody and that “he swore at the bench and was taken away to be examined by MHLS”, with a further notation of later advice that he was “taken to hospital”. On 11 March 2022, it is recorded that he would not come to “ph” -- 2 of 23 -- 3 and that he was remanded in custody to personally appear on 14 March 2022. On 14 March 2022, a solicitor appeared for the defendant who was granted bail to appear again on 11 April 2022. The appellant then appeared, without legal representation, on 11 April and 9 May 2022, when the fraud allegation was adjourned for trial on 25 August 2022. The first allegation of failure to appear on 31 January 2022, was similarly dealt with until 9 May 2022, when that matter was adjourned to 16 June 2022, when a solicitor appeared and was given leave to withdraw. It is noted by way of endorsement, that the appellant sought an adjournment which was opposed by the prosecutor and then the appellant left the courtroom “yelling at the Court and saying we were corrupt”. It is further noted that he did not return and that it was ordered that a Bail Act warrant issue for his arrest. On 18 August 2022, it is noted that, in the absence of appearance of the appellant, the trial was delisted with the matter remaining for mention on 25 August 2022. On 25 August 2022, it was noted that the appellant did not appear and it was ordered that a further warrant issue for his arrest. (c) As it is understood, both warrants were executed on 14 November 2022, thereby giving rise to the second and third allegations of failure to appear, respectively on 16 June and 25 August 2022. On that date, the three matters involving the allegations of the appellant’s failures to appear and the three offences under the PPRA, which are understood to arise out of the execution of the arrest warrants, were brought before the Court. There is notation that the defendant refused to exit his cell and as to safety issues for the defendant and officers. He was remanded in custody to appear on 15 November 2022, when it is again noted that the appellant refused to come to court. He then remained in custody before being released on bail on 19 December 2022 (when a lawyer is noted as appearing for him), to appear for trial on the fraud matter on 28 February 2023 and for mention on all other matters. In the meantime, those matters had been before the Court, on 21 November 2022 (when it is noted that the appellant was in hospital and that “CLS Report requested as to fitness for trial”, on 28 November 2022 (when the appellant did appear and make a bail application which was adjourned part heard) and on 1, 5 and 12 December 2022 (when there are various notations as to the defendant being unresponsive over video link); -- 3 of 23 -- 4 (d) On 28 February 2023, another lawyer is noted as appearing as “friend of the Court”, but with the notation of “no appearance of Defendant” it was again ordered that a warrant issue for the arrest of the appellant. (e) On the basis of the execution of the further warrant, the appellant was brought before the Court by video link on 8 March 2023, with the additional and fourth allegation as to his failure to appear, on 28 February 2023. It was noted that he wanted to plead not guilty and engage a particular lawyer and he was remanded in custody to appear on 13 March 2023. On 13 March 2023, it is noted that the prosecution offered no evidence on the fraud charge and that the remaining matters were adjourned to 20 March 2023, with the appellant granted bail. On 20 March 2023, the appellant is noted as appearing, when not guilty pleas were noted in respect of “all remaining charges” and adjourned to 8 May 2023, for the provision of a brief of evidence. (f) On 8 May 2023, there is a notation; “Def was here but left for med app”. There was an adjournment to 15 May 2023 and it was ordered that a Bail Act warrant issue, but “endorsement” of that warrant was postponed to 15 May 2023, with a direction that a notice be given to the appellant. On 15 May 2023, it is noted that the appellant did not appear and that the warrant was “released”. (g) On 14 June 2023 and upon execution of that most recent warrant, these matters returned to the Court together with another allegation of failure to appear but in the Bench Charge Sheet, it is set out as having occurred on 20 March 2023. As will be discussed, the appellant raises grievance as to what transpired on 14 June 2023 but at this stage, it may be observed that a notation for 14 June 2023 is that the appellant “refuses to come to court”. He was remanded in custody to appear by video link on 21 June 2023. Further appearances by video link are noted to have occurred on 21 and 26 June and 24 and 31 July 2023, with various notations as to the appellant being unresponsive and on one occasion indicating that he was seeking legal aid. On 4 August 2023, the appellant was represented by lawyers, with the outcomes that he was granted bail (with a particular notation that he had been in presentence custody for 87 days) and the matters before the Court adjourned to later dates. In respect of the charges of obstruct police, assault police and contravene direction or requirement on 14 November 2022, for mention on 4 August 2023 and hearing on 17 October 2023. In respect -- 4 of 23 -- 5 of the failure to appear matters, to 4 August 2023 for “show cause” proceedings (with an endorsement “MUST SHOW CAUSE on that [date]”. [4] On 14 August 2023, a solicitor appeared for the appellant when the matter was first called on. After indicating to the magistrate that he had last appeared for the appellant by telephone when the matter was adjourned “to today for Mr Bayliss to have a show cause hearing in relation to the fail to appear offences”, he went on to indicate that upon speaking to the appellant that morning he understood his instructions were withdrawn and that he was “regrettably seeking leave to withdraw”. At that stage, the appellant was present but before addressing the appellant, the Magistrate granted the solicitor leave to withdraw. When the appellant was addressed by the Magistrate, he stated that he had not withdrawn his instructions and the solicitor was recalled to the Court and the appellant was asked to restate his position which he did, adding: “It’s a breakdown of communication, your Worship”. The solicitor suggested: “… perhaps if we can stand this matter down and I’ll have a further chat with Mr Bayliss”. The Magistrates response was to say; “All right. I’ll stand it down.” [5] As the transcript for this hearing records there was an adjournment from 10.10am to 11.07am, then the following is recorded: MR COOPER: Your Honour, I can indicate that after my conference - further conference with Mr Bayliss and attempts to explain section 33 of the Bail Act, he instructed again that he was going to self-represent. I have, prior to mentioning the matter, walked outside and had a look up and down the road. I could not see Mr Bayliss, hence why I ask that his name be called. HIS HONOUR: Now, Sergeant, what's the request here? SGT MAHONEY: Your Honour, I take it that Mr Cooper is going to be seeking leave to withdraw, and if that's the case, I'm certainly not opposing that. But then if your Honour would stand the matters down to the end of the list. If Mr Bayliss doesn't return, I'm going to apply to do it ex parte. HIS HONOUR: All right. Well, after your second attempt at conferencing with the defendant, and he's indicated that he wished to self-represent, I'll give you leave to withdraw - - -”1 The solicitor was then excused and the matter was adjourned from 11.08am to 1.01pm, when the following is transcribed: 1 T 1-3.20-35. -- 5 of 23 -- 6 “SGT MAHONEY: Well, if we call Mr Bayliss' name again, and assuming he doesn't appear, I will also do - seek to do Mr Bayliss' matters ex parte. BAILIFF: What's his name? Andrew? SGT MAHONEY: Gary. HIS HONOUR: Gary. SGT MAHONEY: Gary Andrew. BAILIFF: That's right. Yeah. That's his middle name. SGT MAHONEY: Your Honour, in terms of Mr Bayliss' matters, there's a failure to appear from the 28th of February 2023. HIS HONOUR: All right. SGT MAHONEY: Mr Bayliss has previously been arraigned and entered a plea to that matter on the 13th of March 2023 but the sentence was adjourned. HIS HONOUR: Yes. SGT MAHONEY: He's got two other failures to appear on the 20th of March 2023 and an offence from the 31st of January 2022. He was going to attempt to show cause on those allegedly, but he has - it doesn't appear to show cause today, so I'd seek to finalise those ex parte. He's then got a contravene requirement or direction and offences of assaulting or obstructing a police officer. HIS HONOUR: But there's two failure to appears on the 16th of June and the - - - SGTMAHONEY: Yes. HIS HONOUR: - - - 25th of - - - SGT MAHONEY: Those as well are ones that he hasn't finalised. So four - no, five fail to appears in total, but one he's entered a plea on. HIS HONOUR: All right. SGT MAHONEY: And three other offences. And I'd seek to finalise all matters ex parte if your Honour will accept that. HIS HONOUR: All right. Now, so you're seeking leave to proceed ex parte on all the failure to appears? SGT MAHONEY: Yes, as well as the - - - HIS HONOUR: As the obstruct and assault. SGT MAHONEY: And a contravene direction requirement. HIS HONOUR: All right. Well, leave is granted to proceed ex parte in all of them.”2 2 T 1-4.5 – 1-5.8. -- 6 of 23 -- 7 The prosecutor then proceeded to outline the essence of the history the alleged failures to appear by the appellant and a precis of the allegations constituting the offences which had been given a later listing for summary trial, as follows: SGT MAHONEY: Thank you, your Honour. Facts for the fail to appear from the 31st of January 2022. Defendant had entered into a bail undertaking which required to attend court on that day. Didn't attend. On the 21st of February, police sent him an email to him advising him of the warrant and asking him to attend and finalise the matter. They attempted to then telephone him on the 9th of March but that was also unsuccessful. Ultimately, they attended his address on the 10th of March. Arrested him in relation to the warrant. Wouldn't provide a reason to police for failing to appear at court other than telling them that he was not guilty, and then he accused the police, the watch-house, and the court of being corrupt. The failure to appear on the 16th of June 2022. He entered into a bail undertaking. Was required to attend on the 16th of June. Didn't appear, and the warrant was issued in relation to that matter. He was subsequently arrested and entered into an undertaking. He was then required to appear on the 25th of August 2022. Didn't appear on that date. Warrant was issued, and he was arrested. He was arrested on the 14th of November at about 7.30 am for the warrant. Police attended his residence. Knocked on the door. He came to the front door. They identified himself. Told him about the warrant and that he was under arrest. He responded, "No, bye-bye", shut and locked the door. He was advised that he was obstructing police if he refused to open the door and come out. He was repeatedly asked to unlock the door and repeatedly warned that he was obstructing police and it was an offence to do so. He - neither he nor his mother who was also inside would comply with the requests to unlock the door, and police ultimately forced entry to the building by manoeuvring the lock off the catch without damaging the door. The assault police then occurs. When police walked into the house, they were confronted by the defendant's mother who was blocking the hall with her body and trying to shield the defendant who was behind her. He was told repeatedly he was under arrest. Police moved past his mother. They were both shouting at police. He was told to walk - come with police. He started walking down the hallway by himself. He then approached Senior Constable Bell, was shouting at her, was agitated, clenching his fists. Senior Constable Benny took hold of the defendant's right arm. As Senior Constable Bell reached out to take his arm, he struck her on the chin with a closed left fist, so a punch effectively, before being restrained with handcuffs. The contravene requirement. When he was - attended at the watch- house, arrested, in custody for those other matters. He refused to provide his identifying particulars as required by the watch-house -- 7 of 23 -- 8 sergeant. He was warned about the failing to supply them would be an offence but he continued to refuse. He was ultimately granted bail. The next bail to appear then occurs. He was required to attend court on the 28th of February. Failed to attend on that date. Warrant was issued. On the 8th of March, police located him at home in relation to the matter. He said he had a reason for not going to court, but he wouldn’t disclose it to police and he would speak with a duty lawyer. He was given bail again. Failed to appear on the 20th of March in accordance with his undertaking. A warrant was issued. On the 14th of June, police arrested him. When questioned about why he failed to appear, he said he had a submission for the court, and police had no right to arrest him, and police were conspiring to kill him. And those are the facts for all the matters.”3 In response to his enquiry, the Magistrate was referred to a pre-sentence custody certificate and there were submissions made about dealing with the pre-sentence custody, including by not declaring it but taking it into account so as to allow for no conviction to be recorded. The Magistrate’s orders and reasons are recorded as follows: “HIS HONOUR: Well, from that - those facts, I'm going to proceed as follows: I've given you leave to proceed ex parte on all of the matters, and dealing with a breach of bail on the 20th of March 2023. I haven't got them in order, but there's another breach of failing to appear, breach of bail, on the 31st of January 2022, and the breach of bail, failing to appear, on the 28th of February 2023, and a group of charges. there's two breaches of bail on the 16th of June 2022, and a breach of bail on the 25th of August 2022, and obstruct police charge on the 17th of November 2022, and assault police charge on the 14th of November 2022, and a contravene a requirement on the 14th of November 2022. I note those facts that have been read out. I note the pre-sentence custody of 87 days, and I'm going to record convictions against the defendant in respect of all of those charges, and taking into account a total of 87 days' pre-sentence custody, I'm going to proceed with a conviction and not further punished, and that's about it.”4 Otherwise, it is to be noted that the following further notations are endorsed on the court file for the proceeding on 14 August 2023: “I accepted no cause shown by the defendant in respect of the breaches of bail charges.”;5 and “I vacate hearing date of 17.10.23.” 3 T1-5.10 – 1-6.12. 4 DT 1-2.1 – 1-2.13. 5 Correction as appears in the endorsement. -- 8 of 23 -- 9 [6] The reference of the police prosecutor to the appellant having entered a guilty plea to offence of failure to appear on 28 February 2023, is not expressly relied upon by the respondent in this Court. The submission to the Magistrate appears to relate to an endorsement in respect of an appearance on 13 March 2023, which is when it was otherwise noted that the fraud charge was discontinued. There are also endorsements which read “pleads guilty to this” and noting a grant of bail “on the balance”. As it is understood, the defendant must have been released on an undertaking in respect of all the remaining charges before the court, including that in relation to any failure to appear on 28 February 2023. On the prior occasion, on 8 March 2023, when the appellant was first brought before the court in respect of that additional allegation, it is endorsed: “pleading not guilty to this” and on the subsequent appearance, on 20 March 2023, it is endorsed “Plea of not guilty to all remaining charges”. Any ambiguity would require reference to at least a transcription of any relevant proceedings, including in terms of whether the endorsement for 13 March 2023 relates to any formal process of taking any plea from the appellant. The Appellant’s contentions [7] Before attempting to distil and deal with what may be understood to be the appellant’s contentions, it must be observed that some of the difficulties which have been noted in the records of the court below, in dealing with the appellant, have also intruded, in a largely counterproductive way, in dealing with him in this Court. That is not so much in terms of his lack of attendance, although he has on occasions threatened to leave, but in having to attempt to control and move on from his outbursts and at times, completely unacceptable tirades of abuse and invective directed at the Court and the respondent’s legal representatives. As was the case in hearing the matter, that is put aside in terms of dealing with this appeal on the merits. [8] A second difficulty has been in attempting to discern what may appropriately be regarded as the record of proceedings below and particularly to discern whether or not any question of the admission of new evidence was to be considered. That is because this appeal is brought pursuant to s 222 of the Justices Act 1886 and by s 223 of that Act it is provided: -- 9 of 23 -- 10 “223 Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is— (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced.” [9] Such considerations are of importance, because what has been noted, for instance in McDonald v Queensland Police Service,6 is that in the absence of any successful application to adduce “new evidence”, the appeal is conducted by way of rehearing on the record of the proceedings below. In such an appeal, this Court is required to conduct a review of the record of the hearing and ultimately correct any legal, factual or discretionary error of the Court below, determined on the basis of that review and this Court’s own conclusions.7 Necessarily, regard must be had to the issues raised by the grounds of appeal,8 and quite apart from the necessity to have regard to the prior history before the court of the charges dealt with on 14 August 2023, in dealing with this appeal, as will be noted there could be no prospect of rehearing these matters to any conclusion in this Court, without having a full record of that history and perhaps some additional evidence. [10] In the first instance, the problem as to the application of s 223 of the Justices Act began with an approach of the appellant which paid scant regard to such issues, but it was also noted when the appeal came before this Court in November 2023 that the respondent’s filed written submissions had been inappropriately drawn into the same lack of discernment.9 The end result on 17 November 2023, after some attempts at identification of an appropriate record, were directions for: 6 [2018] 2 Qd R 612 at [47]. 7 See also: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]- [34], Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, at 686-7, Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakarji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121. 8 Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132. 9 It should be observed that the written submissions in this matter have, as is not an uncommon and as here, sometimes unfortunate practice, been prepared by a legal officer and not by any of the counsel who have had to appear in this Court in reliance upon them. -- 10 of 23 -- 11 (a) the preparation of a replacement outline of submissions for the respondent, directed to further assisting the discernment of an appropriate record and any further issue arising in respect of new evidence; and (b) in allowing for the appellant to file any evidence he might seek to rely upon, particularly to address the requirements of s 33(2) of the Bail Act. Although the appellant did later file an “affidavit”, there was no attempt to address the s 33(2) issues and the document is in essence only repetition of contentions or submissions of the appellant as to how he has been treated in respect of some matters already noted in the history of his charges before the Magistrates Court.10 The approach of counsel for the respondent on the final hearing of this appeal was to adhere to an approach as stated in the replacement outline of submissions for the respondent,11 in recognising only the transcripts of the hearing and decision on 14 August 2023 and the endorsements on the variously relevant Magistrates Court Files, as the relevant record. Two things may be noted as to this approach, in some respects the replacement outline may be seen to stray from this narrowness of approach, in reference to some extraneous materials, but that is largely incidental to understanding that ultimately the concessions are made that, except in one respect, each of the charges should be remitted to be reheard in the Magistrates Court. [11] Such result would be pursuant to the power of this Court to do so as stated in s 225(2), upon a decision to set aside any of the orders made on 14 August 2023. The power of remittal may be noted to be available for exercise when, as would be the case here, in setting aside any such order, this Court does not have before it the materials appropriate to any rehearing with the benefit of any “new evidence” as contemplated by s 223(3) of the Justices Act.12 Neither party has sought to place this Court in any such position, including in having regard to what is to be subsequently noted as to the particular procedures to be adopted pursuant to s 33 of the Bail Act. 10 Affidavit G A Bayliss filed 28/11/23. 11 Respondent’s written submissions filed 5/2/24. 12 It is of importance to note that the concept of “new evidence” is defined by the reference to “leave to adduce fresh, additional or substituted evidence”, albeit upon satisfaction “there are special grounds”, in s 223(2) of the Justices Act. It would appear that the considerations are not necessarily limited to the classifications of “fresh evidence” and “new evidence”, as discussed in cases such as R v Spina [2012] QCA 179 at [32]-[34]. -- 11 of 23 -- 12 [12] The respondent correctly points out that the appellant seeks some outcomes from his appeal which are beyond the powers of the Court under s 225 of the Justices Act. In particular, that there be orders for reinstatement of his disability pension payments not paid whilst he was remanded in custody and warrants issued to arrest the persons involved in his unlawful detention and prosecution of them for wrongful imprisonment. As it is understood such contentions are particularly directed at what occurred on 14 June 2023, in reliance upon the decision in Williams v The Queen (1986) 161 CLR 278 and the assertions of the appellant that he was not brought before the court on that day and was remanded in custody due to the acts of the police officers dealing with him rather than his own conduct, as noted in the endorsements on the court files. Further and upon his complaint that he was not brought before the Court until 7 days later, on 21 June 2023 when he appeared by video link from prison, he contends that his detention was unlawful and everything that occurred thereafter is invalidated. [13] Whilst it may be recognised that there may be potential for dispute as to what may have occurred in the watchhouse at Gympie on 14 June 2023 and as to the information it appears the Court was given,13 this Court does not have any materials to enable adjudication of any such dispute. In any event, it is an irrelevant consideration for present purposes. It is to be accepted that there was obligation upon the execution of any warrant for the appellant’s arrest to take him before a court, as soon as reasonably practicable, to be dealt with according to law,14 but here his remand was pursuant to the order of the Court made on 14 June 2023 and the Williams decision (which is concerned with the unlawfulness of delay by police in taking an arrested suspect before a court, for the purpose of questioning of that suspect, as a basis for exclusion of the evidence so unlawfully obtained) does not justify any conclusion that the appellant was unlawfully detained, let alone that everything which occurred thereafter and particularly from and after the appellant’s appearance before the Court on 21 June 2023 is invalidated. [14] The appellant raises a number of complaints about the unlawfulness of his treatment in this history of events and as to the unjustness of the determination of the charges 13 This Court did not ultimately have before it any transcription of what occurred in the courtroom in dealing with the appellant’s matter on 14 June 2023. 14 S 28A(3)(c) and s 393 and s394 of the Police Powers and Responsibilities Act 2000. -- 12 of 23 -- 13 on 14 August 2023, in his absence. However, and in respect of the Bail Act offences, it is correctly identified by the respondent that there is difficulty in identifying contentions addressing any apparently viable basis for defence of those allegations. For example, in respect of such allegations pertaining to 16 June 2022, 25 August 2022 and 28 February 2023, he erroneously contends that he should not have been required to appear on the fraud charge because it was discontinued on 13 March 2023, it is contended due to a submission made for him in May 2022. In any event, that overlooks any requirement to appear in respect of the Bail Act matters. But it should be noted as being understood that in respect of the first allegation of failure to appear on 31 January 2022, that there is an issue raised as to the appellant attending the Court but being denied entry having regard to directions in respect of the Covid-19 pandemic and his unvaccinated status. Whilst it is conceivable that there may be some factual issues arising in respect of what happened then, in dealing with the appellant’s situation, it may be observed that pursuant to any reliance upon s 33(2) of the Bail Act, the effect is that the appellant will need to prove what he did to protect his own interests by seeking to appear before the Court then and at some further proximate time, as was reasonably practicable in the circumstances. [15] The appellant is cognisant of the Practice Direction of the Chief Magistrate No 5 of 2020, but his contention that it was inapplicable to defendants on bail, is untenable. Moreover, there is nothing of relevance to be drawn from the recent decision in Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor,15 as the concern there, in proceedings brought under the Judicial Review Act 1991, albeit in the context of the general health directions given to the community in addressing the pandemic, was with the legality of specific further directions given to workers by their employer. And there is certainly nothing identified to warrant any concern as the lawfulness of the arrangements dealt with in the Chief Magistrate’s practice direction and the relevant issues will be as to the application of s 33 of the Bail Act, in relation to whatever may be found to be the relevant circumstances of what the appellant did or did not do to protect his own interests in relation to his obligation to surrender at the Court as required by his bail undertaking.16 15 [2024] QSC 6 or the related decision: [2024] QSC 2. 16 See the further submissions of the appellant by leave, forwarded by email on 11 March 2024 and now marked “B” for identification. -- 13 of 23 -- 14 [16] The appellant has identified a further issue as to the recovery of a sum of $138.10, incurred as offender levy in respect of his conviction for the offence of obstructing police on 14 November 2022. However, and in the event that such conviction is set aside then, subject to any further determination of that charge, the authority for any incurrence of that levy is also to be regarded as set aside. [17] Before turning to the issues to be determined in this appeal, it should be noted that at the outset of the hearing conducted on 11 March 2023, the appellant was asked and indicated that he did not persist in any prior assertion of seeking my recusal in hearing this appeal, including as most recently addressed by email correspondence to the Registry.17 He did however apply for an adjournment of the hearing in consequence of his noting the recent change in occupation of the office of Commissioner of Police and so as to allow the new office holder to consider the response to his appeal. That application was opposed and refused because of the misapprehension involved as to the titular nature of the identification of the Commissioner of Police, as an embodiment of the respondent actually being the State of Queensland and for which actions have been taken against the appellant by individual police officers. That is a contemporary practice which has evolved from the past practice of utilisation of the name of individual police officers who brought a charge against a defendant dealt with under the Justices Act in the Magistrates Court, as it has been understood, in recognition of the role of the Commissioner in directing, in an overall sense, the activities of such officers and ultimately being responsible for indemnification of such officers for actions taken in the execution of their duties, including any award for costs in favour of an appellant upon such an appeal. The misunderstanding also lies in not appreciating that in this matter the decisions in respect of matters relating to this appeal may be expected to be delegated to persons having particular responsibility for such matters and as is apparent on the record with the engagement of the legal assistance of the Director of Public Prosecutions before the Court. 17 See further submissions of the appellant, forwarded by email on 7 March 2024 and now marked “C” for identification. -- 14 of 23 -- 15 Issues to be determined [18] It is to be understood that the appellant seeks that the orders made on 14 August 2023 be quashed, or set aside as the Court is empowered pursuant to s 225(1) of the Justices Act. The respondent agrees in that but further contends that there should be an order pursuant to s 225(2) remitting all but one of the charges, to be reheard in the Magistrates Court. The appellant vehemently opposes such remittal and contends that because of the ex-parte nature of the proceedings wrongfully undertaken below, he is now entitled to simply have these orders set aside. In that respect, he has fixed upon the latin maxim “ex debito justitiae” as he has identified it by reference to the decision in Mineralogy Pty Ltd v The State of Western Australia,18 as follows: “[66] WA contends that, as it was not given notice of the application, it is entitled as of right to have the order set aside. It relies upon a number of statements of high principle and, in particular, on what Rich J said in Cameron v Cole: “It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside…. In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.” (citations omitted, emphasis added) [67] In Hoskins v Van Den-Braak, Mason P (with whom Priestley and Beazley JJA agreed) said that where a person was not served with the claim upon which a judgment was based then the proceedings and the judgment are nullities and the person is entitled ex debito justitiae to have the judgment set aside. Statements to similar effect can be found in decisions of the Queensland Court of Appeal in Queensland Police Credit Union Ltd v Criminal Justice Commission and Greig v Stramit Corporation Pty Ltd. 19 18 See the email from the appellant dated 8/3/24, accepted as part of his written submissions and marked “A” for identification. 19 [2020] QSC 344 at [66]-[67], citations omitted but noting that the citation for Cameron v Cole, is (1944) 68 CLR 571 at 589. -- 15 of 23 -- 16 As may be noted, an underlying principle which is recognised is that “a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case” and different considerations may arise when advantage is not taken of such reasonable opportunity as is so provided. It then suffices to further note the appellant also refers to aspects of the following, as observed in the Mineralogy decision:20 “[81] The requirement of uberrima fides – utmost good faith – enunciated in Thomas A Edison Ltd v Bullock was described in these terms in Walter Rau Neusser Oel und Fett v Cross Pacific Trading Ltd where Allsop J said: ‘[38] In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application … That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.” (citation omitted, emphasis added)’”; and “[88] The attitude evinced by courts about the consequences of inadequate disclosure was summarised by Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam where his Honour said: “ …. [15] It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of 20 [2020] QSC 344 at [81] and [88], citations omitted. -- 16 of 23 -- 17 all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.” (citations omitted, emphasis added)” [19] An obvious difficulty with the appellant’s approach is in understanding that these observations are directed at challenge to the determination made in an ex-parte proceeding and his conflation of any entitlement to have those determinations set aside, with an entitlement to have the charges dismissed. By his appeal, these charges are now brought to this Court to be reheard, in the sense that has been noted. An order setting aside the orders made in the Magistrates Court on 14 August 2023, does not finally deal with those charges and as is clear from the other provisions in s 225 of the Justices Act, there must be some other order dealing with them. As is the case here, where this Court does not have the appropriate materials to determine them, for instance by way of dismissal as the appellant ultimately desires, the only rational alternative may be to exercise the power to remit them to the Magistrates Court to be determined according to law. [20] Whilst there is an evident sense of practical expediency in the decision made below to deal with these matters on 14 August 2023, there was no express attention to the underlying basis of those charges, nor any complications in dealing with them pursuant to s 33 (as are subsequently noted) and nor the power to do so. The respondent’s submissions focus on s 142A of the Justices Act but ultimately and leaving aside, for the moment, the Bail Act offences, recognise the limitation of the application of that power having regard to the requirements of s 142A(4). As has been noted, the charges relating to 14 November 2022, were only listed to be mentioned on 14 August 2023 and had previously been listed for hearing at a later date. That would be expected to be a summary trial where relevant evidence would be taken from witnesses, including in allowance of cross-examination of them. Neither can there be any warrant for having dealt with these matters on 14 August 2023, in the manner adopted, found in either s 142 or s 147 of the Justices Act. [21] The Bail Act charges involve different considerations. The sense of the notation for a “show cause” hearing on 14 August 2023 for those charges, is to be understood in reference, first, to s 28A(2) which allows where such a defendant “surrenders into the custody of the Court that issued the warrant as soon as practicable for the time being appointed for the defendant to [have surrendered into custody or appeared before the -- 17 of 23 -- 18 Court]” and who “satisfies the Court that the failure to surrender into custody was due to a reasonable cause”, for withdrawal and cancellation of the warrant. Then, it is necessary to have regard to s 33, which provides: “33 Failure to appear in accordance with undertaking (1) A defendant who— (a) fails to surrender into custody in accordance with the defendant’s undertaking; and (b) is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e); commits an offence against this Act. (2) It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause— (a) for failing to surrender into custody in accordance with the defendant’s undertaking; and (b) for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable. (3) Proceedings for an offence against this section— (a) shall be instituted and taken, without the laying of a complaint; (b) shall be taken in accordance with the following procedures— (i) production to the court before which a defendant apprehended under a warrant issued under section 28 or 28A(1)(a), (b), (c) or (e) is brought of that warrant shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the undertaking and of the failure to surrender into custody and that the issue of the warrant was duly authorised by the decision or order of the court that issued the warrant; (ii) judicial notice shall be taken of the following— (A) for a warrant other than a computer warrant— the signature of the person who issued the warrant; (B) that the person who issued the warrant was duly authorised to do so. (4) Upon production to the court of the warrant the court shall then and there call on the defendant to prove why the defendant should not be convicted of an offence against this section.” The effect is tolerably clear. If there has relevantly been a failure to surrender into custody, or appear before a court, as required in accordance with a bail undertaking, a defendant may act to seek to avoid the consequences of the execution of any warrant issued for that defendant’s arrest. Otherwise and if the warrant is executed and produced to the court to which the defendant is brought, the onus is placed upon the -- 18 of 23 -- 19 defendant to prove why he should not be convicted of the offence proscribed in s 33(1), including in proof of any defence under s 33(2) which, it must be noted, involves proof of reasonable cause for both the failure to surrender or appear when required and for not doing so as soon thereafter as was reasonably practicable. [22] Returning to the application of s 33, given what has been noted as to the approach of each party to identification of the record for the purposes of this appeal, it is not clarified as to when the relevant warrant was produced to the court below. An implication in the notations that 14 August 2023 was the occasion identified to allow the appellant to “show cause”, may be, as might be expected, that each warrant was produced when the appellant was brought before the court upon execution of that warrant and that therefore, 14 August 2023 was designated as his opportunity to address any issues arising under s 33(4) and/or s 33(2) of the Bail Act. However, this Court has not been provided with materials to enable any such determination. [23] In respect of the first element of the offence provided in s 33(1), some understanding of the concept of a failure to surrender into custody in accordance with the defendant’s undertaking, may be derived by noting that pursuant to s 20(3) of the Bail Act, it is a mandatory condition of any undertaking granted to the defendant requiring his appearance before a Magistrates Court, that he “must surrender into custody as required” and also that he “not depart from the Court unless the bail is enlarged”. A basal understanding of the operation of the Bail Act is that upon a person being charged with an offence, unless there is an exercise of power by a relevant police officer,21 where there has been an arrest, and/or a court,22 irrespective of arrest or adoption of some other process to bring the charged person before a court, to grant bail, the only alternative is remand in custody. Once bail is granted and upon necessity to return to court, the obligation is to surrender into custody at the court. An understanding of that requirement is further informed by reference to Part 10 of the Corrective Services Act 2006, which is headed “Prisoners of a court”, and where it is provided that: “307 Prisoner in proper officer of a court’s custody (1) A person who is required by law to surrender himself or herself into the custody of a court must do so by surrendering himself or herself into the custody of the proper officer of the court. 21 Pursuant to s 7 of the Bail Act 1980. 22 Pursuant to s 8 of the Bail Act 1980. -- 19 of 23 -- 20 (2) A person who surrenders himself or herself into the custody of a court is in the custody of the proper officer of the court until— (a) released on bail; or (b) discharged from lawful custody; or (c) otherwise dealt with as the court directs. 308 Powers of proper officer of a court (1) The proper officer of a court has, in relation to a prisoner of the court or a person mentioned in section 310(1), all the powers of the chief executive under this Act, in relation to a prisoner, that are necessary for the discharge of the proper officer’s functions. (2) To help the proper officer of the court perform the proper officer’s functions, the proper officer may ask— (a) the chief executive to provide corrective services officers; or (b) the commissioner to provide police officers or, to the extent the commissioner considers it appropriate, watch- house officers….” It is in this sense there is a regular practice of defendants coming before the District Court being required to enter the dock under the attention of either a corrective services or police officer. Whether or not that practice is adopted, it may be understood that the obligation of a bailed defendant is to appear before the court, when personally required to do so. That means, in practice, to attend at the court by any designated time and then be in the courtroom when the defendant’s matter is called on. [24] However, it is necessary to note that this element is concerned with the bare concept of failure to surrender into such custody in accordance with the defendant’s undertaking. It is a separately specified mandatory condition of an undertaking “that the defendant must not depart from the court unless the bail is enlarged”. As noted, this Court does not have the benefit of transcripts of what occurred in the prior dealings of the Magistrates Court with these charges, as it does for the proceedings on 14 August 2023,23 but as has been noted and despite, in each instance, the formulation of the charge under s 33 in a Bench Charge Sheet, no attention was paid, on 14 August 2023, to the understanding that on 16 June 2022 the warrant was noted to have been issued upon the defendant leaving the courtroom after initially appearing in Court. In fact, as noted above, the assertion of the prosecutor was simply that the defendant didn’t appear. There may be a question as to whether this allegation under 23 Neither were the relevant undertakings identified as being placed before the Court. -- 20 of 23 -- 21 s 33 is sustainable which may depend upon what directions were given by the court,24 before the defendant left. For example and although no such allegation arises out of the proceedings on 14 August 2023, the direction of the Magistrate standing the matter down to confer with the solicitor, without any formality of enlarging the defendant’s bail, may sufficiently imply an adjournment to a postponed time and necessarily enlargement of that undertaking, to again surrender into the custody of the court when the matter is again called on. Otherwise, it may be noted that any other breach of a condition of a bail undertaking is proscribed as an offence by s 29 (noting the express exclusion of “a condition that the defendant surrender into custody”) and by s 35, it is provided for prosecution of all offences under that Act: “ … by way of summary proceedings in accordance with the provisions of the Justices Act 1886 (subject to such modifications to those provisions as are made by sections 33 and 33A), and may be taken notwithstanding that more than 1 year has elapsed since the commission of the offence.” [25] Apart from those issues which have been touched upon as potentially going to whether there has been a relevant failure to surrender into custody at the Court, relating to such failures alleged on 31 January 2022 and 16 June 2022, the respondent correctly points out that there nothing in the materials to support any reasonable excuse for any failure to so surrender let alone to address the requirements of s 33(2)(b). Further and despite correctly noting that the relevant requirement is that the appellant had the opportunity to address the reversal of onus to him to prove why he should not be convicted of an offence against s 33, the respondent is prepared to concede that all except one of these Bail Act charges should be remitted to the Magistrates Court, to again allow the appellant that opportunity. [26] The exception is noted in respect of the fifth of the offences of failure to surrender dealt with on 14 August 2023, which in the relevant Bench Charge Sheet, refers to such failure to surrender on 20 March 2023. As is acknowledged by the respondent, the records indicate that the appellant did appear on that date and the concession is that the order on 14 August 2023 in respect of this charge, should be set aside and replaced with an order that the charge be dismissed. Although there is, in the written submissions, reference to the possibility of amendment of that Bench Charge Sheet, no such application has been made. 24 See s 20(3)(a)(iii) of the Bail Act 1980. -- 21 of 23 -- 22 [27] Clearly, the order made in convicting the appellant of such an offence on 20 March 2023, as it was presented to the Magistrate on 14 August 2023, must be set aside. It is clearly an error, as the relevant proceeding is that initiated by the execution of the warrant on 14 June 2023 and which then involved the difficulties noted in respect of what occurred thereafter. Antecedent to that, is what has been noted as to the sequence of endorsements on 8 and 15 May 2023. Presumably, the warrant as the essential mechanism of engagement of s 33 of the Bail Act, was directed at a failure to surrender on 8 May 2023, with similar potential complication as was noted in respect of the charge relating to 16 June 2022. However and when it is understood that the formulation in the Bench Charge Sheet is incidental, rather than foundational, to any such engagement of s 33 and therefore eminently amenable to an application to amend it to accord with the correct basis of such engagement, it is difficult to see why this suggested exception should be made, rather than, like the other matters, sending it back to be properly considered on the merits and with the benefit of all relevant materials and any necessary amendment of the Bench Charge Sheet. Conclusions [28] The primary concession of the respondent in terms of remittal of such matters, is influenced by notation that the appellant has attached to his written submissions filed 22 September 2023, a letter from a doctor (whose clinic has the address 11A Channon Street Gympie and therefore understood as within walking distance from the Courthouse), confirming that the appellant, as he claims as a reason for leaving the Courthouse, was seen at the clinic on 14 August 2023. However, it is to be observed that this letter states no more than that he “was seen in the clinic on 14/8/2023”.25 [29] In any event and as may be seen, there are apparent complications in respect of some of the Bail Act charges, which were not addressed or considered at all on 14 August, including but not limited to his wrongful conviction for an offence occurring on 20 March 2023 and there is no alternative but to remit the charges of obstruct and assault police and contravene a direction on 14 November 2023. Had there been preparedness, on either side, to put this Court in a position where all of the necessary 25 Appellant’s written submissions filed 22/09/23. -- 22 of 23 -- 23 materials were before it, further opportunity for the appellant to address s 33 of the Bail Act may have been able to be afforded to him in this rehearing. Because that has not occurred and also having regard to an approach on 14 August 2023 in dealing with all of these matters collectively and with the combined sense in which the pre- sentence custody was taken into account and notwithstanding any appearance of particular difficulty which may confront the appellant should his reliance ultimately be on the provisions of s 33(2) of the Bail Act, the appropriate course is to remit all matters. [30] Therefore, it is ordered that each of the orders convicting and not further punishing the appellant for the offences dealt with in his absence in the Magistrates Court at Gympie on 14 August 2023, is set aside and in each instance the charge upon which such order was made is sent back to the Magistrates Court at Gympie to be determined according to law. It is directed for that purpose, that the appellant is to personally appear at the Magistrates Court at Gympie at 9.30am on 25 March 2024. -- 23 of 23 --