Croll v Commissioner of Police [2023] QDC 69

DISTRICT COURT OF QUEENSLAND CITATION: Croll v Commissioner of Police [2023] QDC 69 PARTIES: TREVOR HENRY CROLL (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 2506/2022 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Cleveland DELIVERED ON: 24 March 2023 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 24 March 2023 JUDGES: Allen KC DCJ ORDER: 1. The appeal is allowed. 2. The orders made by the Magistrates Court on 21 September 2022 are set aside. 3. The verdict and judgment record be amended so as to record that the plea was one of “Not guilty” and the verdict/result is “Found guilty”. 4. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant pleaded not guilty to one charge of unlawful stalking in the Magistrates Court – where the appellant was self-represented – where the presiding Magistrate failed to inform the appellant of his right to trial by jury – where the presiding Magistrate cross-examined the appellant so as to elicit an admission of guilt – where the presiding Magistrate proceeded to sentence the appellant in the absence of a plea of guilty or a verdict of guilty and reasons for that verdict – where the presiding Magistrate disregarded the appellant’s claimed defence of unsoundness of mind – whether there was a miscarriage of justice – inaccurate Verdict and Judgment Record Legislation Criminal Code 1899 (Qld), s 359E, s 359F, s 552B, s 552I, s 631A -- 1 of 15 -- 2 Justices Act 1886 (Qld), s 146, s 148, s 222, s 225 Cases Forrest v Commissioner of Police [2017] QCA 132 Ralph v Commissioner of Police [2015] QDC 206 Stapleton v Queensland Police Service [2019] QDC 190 APPEARANCES: The appellant appeared on his own behalf S Whitfield, sol, Office of the Director of Public Prosecutions (Qld) for the respondent Background [1] The appellant was in a relationship with the ex-wife of the complainant, a serving police officer residing at relevant times on Russell Island. The complainant and his ex-wife were embroiled in a bitter dispute as to the custody of their daughter. The appellant chose to involve himself in that dispute. [2] On 31 December 2021, the appellant travelled to Russell Island with copies of a two-page leaflet he had prepared. The florid contents railed against decisions of the Commonwealth and State government, various public agencies and judges and lawyers. Had the contents stopped there, they would have been easily disregarded as the incoherent rantings of a conspiracy theorist. Unfortunately, two paragraphs of the document identified the complainant by name, date of birth, police station and residential address, and defamed the complainant with imputations as to his integrity and allegations of domestic violence and poor parenting. The appellant was observed to place copies of the leaflet in at least four letterboxes of houses in the street where the complainant resided. [3] The fact and content of the leaflet swiftly came to the attention of residents of the houses and then to a Member of Parliament, the officer in charge of the complainant’s police station and the complainant himself. The complainant made a complaint of stalking. An investigation commenced on 12 January 2022 and led to the arrest and charging of the defendant on 19 January 2022. The charge -- 2 of 15 -- 3 [4] The appellant was charged that on the 31st day of December 2021 at Russell Island in the State of Queensland, he unlawfully stalked the complainant, contrary to section 359E(1) of the Criminal Code (Qld). Proceedings before the Magistrates Court at Cleveland [5] The appellant was legally represented at his first appearance before the Magistrates Court at Cleveland on 22 February 2022 and at subsequent mentions of the matter before that Court. He was not legally represented at the hearing of the charge on 21 September 2022 or when, on 12 September 2022, he filed a voluminous affidavit in which, relevantly, the defendant deposed as to a claimed defence of insanity, prior psychiatric history including treatment pursuant to involuntary treatment orders, and having sought assessment by a psychiatrist and documents from hospitals to support such defence. Hearing on 21 September 2021 [6] The charge was read to the defendant and he entered a plea of not guilty. The presiding Magistrate explained the procedure that would follow during the trial. The police prosecutor particularised the prosecution case as based upon one occasion of conduct consisting of one act of leaving offensive material where it would be brought to the attention of the complainant. The defendant raised the issue of insanity. He sought to read an application and his affidavit. Such submissions were apparently disregarded with the Magistrate inviting the prosecution to call its first witness. [7] Civilian witnesses gave evidence of seeing the defendant putting leaflets in mailboxes on 31 December 2021. Although there was some confusion between witnesses as to the date, it was really not in dispute in the proceedings that the events occurred on 31 December 2021. [8] The complainant gave evidence of how he became aware of the contents of the leaflet. He gave evidence that he found the contents referring to him to be very offensive and defamatory. He said he was deeply concerned that his address, date of birth and the fact that he was a serving police officer was disclosed in the letter, so that he and other residents of his home could be placed in danger. He gave evidence that he was distraught and upset. He gave evidence that he was -- 3 of 15 -- 4 hypervigilant at home because of his concerns as to security because of the publication of his personal details and address. [9] The defendant cross-examined the complainant as to the circumstances surrounding his dispute with his ex-wife. During the course of cross-examination, the defendant stated to the presiding Magistrate that he did not deny that he produced the leaflet and distributed it. The cross-examination of the complainant was further interrupted by exchanges between the presiding Magistrate, the police prosecutor, and the defendant discussing the elements of the offence, and the presiding Magistrate’s views as to the real issues in dispute. [10] During re-examination, the complainant confirmed that the events had caused him “an immense amount of trauma and stress and fear.” [11] A detective who was involved in investigating the complaint gave evidence as to things found during the execution of a search warrant at the defendant’s premises which confirmed his production of the leaflet. The cross-examination of the witness by the defendant was interrupted by exchanges between the Magistrate, the prosecutor, and the defendant concerning the elements of the offence and the issues in dispute. [12] After the evidence of that witness was concluded, the presiding Magistrate indicated that there was no need to hear from a further police witness and, after the defendant agreeing that he did not require such witness, the presiding Magistrate indicated “Well, we won’t call him.” The presiding Magistrate stated he was satisfied that there was a prima facie case, and called upon the defendant “to consider whether or not you wish to give evidence in these proceedings”. The presiding Magistrate did not ask the defendant whether he wanted to call any other evidence; the defendant indicated that he did wish to give evidence. [13] The defendant gave evidence that he created the leaflet and distributed it. [14] The following exchange occurred between the presiding Magistrate, the police Prosecutor and the defendant during the course of the defendant’s evidence-in-chief: HIS HONOUR: Now it’s all digital. I mean, you look at all the rubbish you see on social network platforms and people getting up and banging their -- 4 of 15 -- 5 chests, but what separates this from everything else is that there are two paragraphs where it becomes very personal and very specific. POLICE PROSECUTOR: That’s right. HIS HONOUR: And it has personal details. That, I think, Mr Croll, is where you’re in trouble. Do you understand that now?---Yeah, I realise. I’m - technically, I’m guilty of stalking. I accept that. Not technically. You are guilty of?---Well, okay, I’m guilty. Yes?---But I’m going to use the mental insanity excuse because I spent time in mental hospitals for something very similar in the past. Yes. But I don’t want you to start thinking of how you can abuse this process. Look, I can take into account background information that might mitigate the impact of any penalty that the Court could impose?---Yeah, well, you know, when you’re in that situation, unfortunately, you tend to go a bit mad. And you get crazy thoughts and you put them into effect - - - Have you been to see a doctor?---I tried. I got an appointment with Toowong Psychology Centre, but they said they do not do legal, medical and - - - Yes. But just think of it like this, after today, this will all be over?---Well, it won’t be over because [the complainant] is still there, and he’s - - - [15] The presiding Magistrate then engaged in a discussion with the defendant as to the possible consequences of his behaviour on the child of the complainant and his ex- wife. Then the following occurred: HIS HONOUR: Mr Croll, just hold on for a moment. He’s made admissions, Ms [Prosecutor]. POLICE PROSECUTOR: Yes, and he seems to - - - HIS HONOUR: Do you really need to cross-examine him on that? POLICE PROSECUTOR: No, your Honour. And only just to note that the assumption is that the defendant is sane, yes. -- 5 of 15 -- 6 HIS HONOUR: Look, people are presumed to be sane. POLICE PROSECUTOR: Yes. HIS HONOUR: And I don’t think Mr Croll is crazy. I think he’s very frustrated. I think he’s very angry. He’s feeling very trapped or caught up in this dysfunction that happens between the complainant and the ex-wife. That seems to be what this is all about. POLICE PROSECUTOR: Yes. HIS HONOUR: But is there anything else that you wanted to say, Mr Croll?---Oh, well, the - I had - I’ve had a few run-ins with the legal system. I’d like to talk them through. [16] The defendant then gave evidence of previous experiences with the legal system until an objection was made by the police Prosecutor. The following then occurred: HIS HONOUR: Just let him - let him get it off his chest, Ms Prosecutor?--- Yes. POLICE PROSECUTOR: Thank you, your Honour. HIS HONOUR: I think he’s - he’s - - - POLICE PROSECUTOR: And, your Honour – HIS HONOUR: - - - he’s indicated his guilt. So he’s not going to be cross- examined. He wants to get off his chest how he feels that he’s been unjustly treated by the police. Now, that might be evidence that might mitigate the state of mind as to why he created this document in the first place. POLICE PROSECUTOR: Thank you. HIS HONOUR: That’s something that the Court can take into account. POLICE PROSECUTOR: Yes. But, may I just confirm, this is your Honour taking into account the penalty rather than evidence-in-chief so far as any kind of exculpation goes. -- 6 of 15 -- 7 HIS HONOUR: At this moment I think that, what - what will the submission from the Prosecution on penalty? [17] There was then an exchange between the police Prosecutor and the presiding Magistrate as to potential penalties, all this occurring whilst the defendant was in the witness box. [18] The presiding Magistrate then, in the form of questions of the defendant, made disparaging comments as to the credibility of the complainant, before telling the defendant that the “community is reaching out to provide some assistance to you,” and concluding with the following question of the defendant: I think the point is, though, the police officer is still a person. Now, police have got a difficult job to do and, by and large, I think a lot of police officers are hardworking, they’re dedicated to the vocation of policing, saving, serving, protecting in the community. But, of course, no profession is perfect. You get idiots in every profession. But I think, at the end of the day, I’m - I’m quite happy to have you return back to the bar table and - and I want to talk to you about how we - where we go from here?---Okay. [19] The defendant then returned to the bar table and the presiding Magistrate stated: I don’t think - and I mean the submissions - normally the submissions, but I think we’re talking about two aspects of this. The evidence is very straightforward. There’s been admissions about the drafting and presentation of the document. There’s no doubt in my mind that the document was placed - located, and the purpose behind it. Now, on that basis I’m happy to sentence him and I’ll hear submissions on the - [20] The presiding Magistrate then heard submissions from the police prosecutor as to the defendant’s antecedents and made an application pursuant to section 359F(2) of the Criminal Code (Qld) for a restraining order. There was a further exchange between the presiding Magistrate and the police prosecutor as to the terms of such an order before the presiding Magistrate settled on a term which he described to the defendant as follows: -- 7 of 15 -- 8 And really what it comes down to, Mr Croll, is that you are restrained from publishing any material including the social networking sites to communicate with, publish pictures, or any comments concerning the complainant. So you do not do any of this stuff. This is what that means. DEFENDANT: Yeah. I would not do that. Yeah. You were right. That is okay. I do not mind that one. I did not want to have to do this in the first place... [21] After a further exchange between the presiding Magistrate and the defendant as to available sentences, the presiding Magistrate made a restraining order pursuant to section 359F of the Criminal Code (Qld) in the terms indicated earlier and the defendant stated: Yeah. I would not normally do anything like that anyway. [22] The presiding Magistrate stated: And the main thing, I mean, I think we have already gone over this now, Trevor, you do not do what you did for the next three years. Do not publish anything in regard to this fellow, [complainant]. [23] To which the defendant replied: No. I’m not going to do that, your Honour. [24] The presiding Magistrate then imposed a sentence of a $1500 good behaviour bond for a period of 12 months and did not record a conviction. Bench charge sheet and restraining order [25] The bench charge sheet was endorsed as follows: I grant a restraining order as per draft to expire on 20 September 2025. And: $1500 GB 12 MTHS N/C/R. -- 8 of 15 -- 9 [26] There was no note of any plea by the defendant to the charge or any finding of guilt by the presiding Magistrate. The restraining order was in the following terms: The Court ordered by way of a restraining order: The defendant is restrained from publishing any material (including using the internet or social networking sites) to communicate with, publish pictures of or comments concerning the complainant. [27] The order was expressed as continuing in force to and including 20 September 2025. Notice of appeal and parties’ contentions [28] By notice of appeal filed 13 October 2022 the appellant appealed, pursuant to section 222 of the Justices Act 1886 (Qld), against the orders of the presiding Magistrate. The grounds of appeal were stated as: 1. I was denied natural justice by the Magistrate refusing to hear my application and refusing to read my affidavit. 2. The Magistrate failed to consider my insanity as an issue which was raised in my affidavit. 3. The Magistrate acted to protect the police officer, [complainant], from me acting to get him investigated for his domestic violence against my wife. It is a suppression order that protects a domestic violence abuser. 4. The suppression order also stops me from being able to get the police officer abuser charged with his perjury to that Court. [29] The defendant subsequently filed an outline of argument in which relevantly he stated: 7. I made an application to the Magistrates Court and attached an affidavit. This application was not heard and my affidavit was not read. In the application I disclosed my past history with mental health when placed in a position of suffering great injustice and acting insanely. -- 9 of 15 -- 10 [30] In another document filed by the defendant, entitled ‘Argument’, the defendant again raised the issue of his defence of insanity being ignored by the presiding Magistrate and, again, in a document entitled ‘Certificate of Readiness’ filed by the defendant, he contended that: ...a mental illness/insanity that resulted in the criminal act of stalking. This was ignored by the Magistrate. [31] The respondent filed an outline of submissions conceding that the appeal should be allowed and the conviction set aside because the trial proceeded in a way which was unconventional and led to procedural unfairness. It was noted that the appellant was not asked if he wished to call further evidence and submitted: This is an example of one aspect of the way in which the trial was conducted that led to procedural unfairness. [32] The respondent contended that other aspects of the trial amounted to procedural unfairness, including: (a) the prosecution were required by the presiding Magistrate to tender body- worn camera footage of the police officer which they repeatedly submitted was hearsay evidence and the prosecution was not relying upon it; (b) the prosecution were denied the right to cross-examine the appellant; (c) the presiding Magistrate indicated throughout the proceedings his view of the case and the appellant’s guilt; (d) the presiding Magistrate gave the appellant the option of deciding whether he needed to hear from the sixth prosecution witness instead of allowing the witness to be called, and the appellant making the decision not to cross- examine the witness, the police prosecutor was not consulted as to what was apparently the Magistrate’s decision: No. All right. Well, we won’t call him. (e) the Magistrate asked the appellant leading questions during evidence-in-chief which encompassed his guilt and why he committed the acts, which ultimately led to further admissions on his behalf to elements of the offence; -- 10 of 15 -- 11 (f) the presiding Magistrate asked the prosecution what penalty they would be seeking while the appellant was still in evidence-in-chief; (g) the Magistrate did not afford the appellant the opportunity to call further evidence and proceeded to converse with the prosecutor about what penalty they were seeking and subsequently excused the appellant from the witness box and sent him back to the bar table; (h) the Magistrate did not invite closing addresses from either party; (i) the Magistrate did not re-arraign the appellant, or make it an option, and have him enter a plea of guilty after admissions had been made. In the absence of that taking place, the Magistrate should have given formal reasons by way of a judgment and stated how he had found the appellant guilty of unlawful stalking beyond reasonable doubt in the absence of a plea of guilty. Verdict and Judgment Record [33] The written submissions of both parties were made without the benefit of having considered the Verdict and Judgment Record. The Verdict and Judgment Record is problematic. It was apparently only made on 7 December 2022, well after the events which it purports to record, and only after the defendant had filed a notice of appeal. It records the “plea” as “guilty” and the “verdict/result” as “pleaded guilty”. Consideration [34] It is clear that the appeal should, as conceded by the respondent, be allowed. The hearing of the charge against the defendant entirely miscarried due to errors by the presiding Magistrate. In addition to those conceded by the respondent in written submissions, the respondent conceded in oral submissions that during the hearing the presiding Magistrate also erred in failing to comply with the requirements of section 552I of the Criminal Code (Qld). The charge of stalking, contrary to section 359E of the Criminal Code (Qld), is one which must be heard and decided summarily unless the defendant informs the Magistrates Court that he or she wants to be tried by jury (section 552B of the Criminal Code (Qld)). Section 552I of the Criminal Code (Qld) provides relevantly as follows: -- 11 of 15 -- 12 (a) This section applies to any charge for an offence to which section 552B applies. (b) If the defendant is not legally represented, the Magistrates Court is required – (a) to state the substance of the charge to the defendant; and (b) to explain to the defendant that he or she is entitled to be tried by jury and is not obliged to make any defence; and (c) to ask the defendant whether he or she wants the charge to be dealt with summarily. [35] The defendant was not legally represented at the hearing on 21 September 2022 and it was necessary that the procedure mandated by section 552I(2) of the Criminal Code (Qld) be undertaken. It was not. Even if, during prior mentions of the matter, there had been an understanding between the parties and the Court that the matter would proceed by way of summary trial, any prior intimation as to pleas and elections of summary jurisdiction would have been merely administrative. It was necessary at the commencement of the hearing for the presiding Magistrate to comply with the requirements in section 552I(2) and the failure to do so was both an error on the part of the presiding Magistrate and productive of a miscarriage of justice: Stapleton v Queensland Police Service [2019] QDC 190 at [19]. [36] The presiding Magistrate further erred and caused a miscarriage of justice by his disregard of the defendant’s claimed defence of insanity. There are established procedures available in the Magistrates Court to investigate issues of unsoundness of mind at the time of the alleged offence; see the detailed discussion of the applicable legislation and practice directions by Morzone QC DCJ in Stapleton v Queensland Police [2019] QDC 190. At the very least, the presiding Magistrate should have inquired of the defendant whether he was seeking an adjournment to undertake the investigations he had deposed to in his affidavit. The presiding Magistrate’s failure to do so denied the defendant procedural fairness and resulted in a miscarriage of justice. -- 12 of 15 -- 13 [37] It was entirely inappropriate for the presiding Magistrate to cross-examine the defendant so as to obtain an admission of guilt of the offence. To do so resulted in a denial of procedural fairness and occasioned a miscarriage of justice. [38] The presiding Magistrate proceeded to sentence the defendant in the absence of a verdict of guilty with reasons for such verdict (see Forrest v Commissioner of Police [2017] QCA 132), or upon a purported plea of guilty where there was in fact no such plea. Section 146(1)(a) of the Justices Act 1886 (Qld) provides: (1) If the defendant pleads not guilty, then the court may: (a) proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require… [39] The appellant having entered a plea of not guilty, the presiding Magistrate was required to consider the evidence and determine the matter, and either convict the defendant or dismiss the complaint. The presiding Magistrate did not dismiss the complaint, but it does not appear at all clear that he convicted the defendant. It is certainly not recorded in the transcript or the endorsement on the bench charge sheet that he convicted the defendant, and the verdict and judgment record purports to record that the defendant was sentenced after a plea of guilty. [40] Section 148 of the Justices Act 1886 (Qld), provides that the conduct of such a summary hearing must be as far as possible in accordance with the practice in the Supreme Court. Section 631A of the Criminal Code (Qld) provides for an accused person to be re-arraigned in the event that the accused person wishes to change their plea to one of guilty of the offence charged in the indictment and subsection (4) provides that a plea of guilty to an offence made by an accused person in the circumstances described in the section shall have effect as if made by him or her when called upon at the beginning of the trial to plead to an indictment charging him or her with that offence. -- 13 of 15 -- 14 [41] It is not at all clear to me that the defendant pleaded guilty to the charge. In fact, I am satisfied that he did not enter a plea of guilty to the charge. The exchange between the presiding Magistrate and the defendant as to his guilt of the offence during the defendant’s evidence-in-chief was entirely improper, and cannot properly be regarded as producing an unequivocal plea of guilty to the offence. It would only be if an equivalent procedure by way of re-arraignment had occurred, and the defendant had then entered a plea of guilty, that it could be properly said that he did in fact plead guilty to the charge. The verdict and judgment record is inaccurate in recording a plea of guilty, and will require amendment. [42] It is necessary that the order made by the Magistrate by way of sentence be set aside. The restraining order which was apparently predicated upon a finding of guilt of the defendant, by way of either conviction or plea of guilty, should also be set aside. I consider that the terms of sections 222(1) and 225(1) of the Justices Act 1886 (Qld) do confer jurisdiction upon the Court to set aside such an order (cf Ralph v Commissioner of Police [2015] QDC 206 at [40] – [41]). [43] Pursuant to section 225(1) of the Justices Act 1886 (Qld), I may confirm, set aside, or vary the appealed order, or make any other order in the matter that I consider just. Section 225(2) provides: If the judge sets aside an order, the judge may send the proceedings 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. [44] I have a discretion to send the proceedings back to the Magistrates Court to be heard and determined by a different Magistrate, along with directions as to consideration of the asserted defence of unsoundness of mind. Ordinarily, if convictions are set aside on appeal because of errors of law or miscarriage of justice rather than insufficiency of evidence, then the appropriate order is one for a retrial. [45] However, in considering the discretion to order a retrial, I have had regard to the following. It is by no means clear on the evidence that the prosecution could prove beyond reasonable doubt that the one occasion of conduct particularised by the prosecution was “protracted” as required by the terms of section 359B(b) of the -- 14 of 15 -- 15 Criminal Code (Qld). Whilst the conduct of the defendant might be considered a serious defamation of the complainant, it falls towards the lower range of seriousness for the criminal offence of stalking. The period of good behaviour ordered by way of sentence would have expired in September 2023. It is by no means clear, given the issue raised as to unsoundness of mind, that any retrial would have been heard and determined by that time. [46] In my view, further public money should not be expended, and the defendant further vexed, by further prosecution where the proceedings have miscarried through no fault of the defendant (or the prosecution). In those circumstances, I consider that it was an entirely appropriate concession by the respondent that the circumstances do not require an order for a retrial. [47] Orders 1. The appeal is allowed. 2. The orders made by the Magistrates Court on 21 September 2022 are set aside. 3. The verdict and judgment record be amended so as to record that the plea was one of “Not guilty” and the verdict/result is “None”. [48] Postscript Subsequent to the ex tempore reasons and orders, the registry advised that the Verdict and Judgment Record system does not permit the recording of a verdict/result as “None”. Order 3 was amended to instead substitute the least inaccurate available option of “Found guilty”. -- 15 of 15 --