ADN v Commissioner of Police [2022] QDC 252

DISTRICT COURT OF QUEENSLAND CITATION: ADN v Commissioner of Police [2022] QDC 252 PARTIES: ADN (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: BD 1965/2021 DIVISION: PROCEEDING: ORIGINATING COURT: Criminal Appeal Magistrates Court at Brisbane DELIVERED ON: 14 October 2022 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 14 October 2022 JUDGE: Allen KC DCJ ORDERS: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was convicted of one charge of contravention of a domestic violence order – where the appellant appeals against conviction pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant submits that there was insufficient evidence to prove the offence – where the appellant seeks to adduce further evidence – where the appellant submits that he was not afforded procedural fairness because an interpreter was not present when the domestic violence order was made – where the appellant contends that this matter should have been heard together with another charge – whether separation of the charges prejudiced the appellant – whether it was open to the learned Magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant Domestic Family Violence Protection Act 2012 (Qld), s 23, s 177, s 189 Justices Act 1886 (Qld), s 222, s 223 Gallagher v The Queen (1986) 160 CLR 392 -- 1 of 14 -- 2 APPEARANCES: The appellant appeared on his own behalf S McCray, Office of the Director of Public Prosecutions (Qld), for the respondent Introduction [1] On the 7th of July 2021, in the Magistrates Court at Brisbane, after a trial before the then Deputy Chief Magistrate Brassington, ADN (appellant) was convicted of one offence of contravention of a domestic violence order contrary to section 177(2)(b) of the Domestic Family Violence Protection Act 2012 (Qld) (DFVPA). The appellant was made subject to an 18 month probation order. A conviction was not recorded. The appellant appeals against his conviction pursuant to section 222 of the Justices Act 1886 (Qld). [2] The appellant was born in Iraq and came to Australia in 2012. English is not his first language and he was assisted by the Courts providing Arabic interpreters during the trial in the Magistrates Court and the hearing of the appeal in this Court. The appellant was represented by a solicitor during the trial in the Magistrates Court. He appeared for himself during the hearing of the appeal. The Magistrates Court Proceedings [3] The appellant pleaded not guilty to a charge: That on the 26th day of March 2020 at Toowong in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one [appellant] being a respondent against whom a domestic violence order had been made contravened the order namely the protection order made on 10 th March 2020 in the Magistrates Court at Brisbane and [appellant] was present in Court when the order was made. [4] A copy of the protection order dated 10 March 2020 was admitted into evidence. The order made in the Magistrates Court at Brisbane on 10 March 2020 named the appellant as respondent and his ex-partner as the aggrieved. Condition 3 of the protection order was as follows: The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved. [5] The terms of the order further stated: -- 2 of 14 -- 3 The respondent was present in Court when this order was made. UNLESS OTHERWISE ORDERED THIS ORDER CONTINUES IN FORCE TO AND INCLUDING 09/03/2025 [6] The Police Prosecutor stated the particulars of the charge as follows: It would be the prosecution’s case that the defendant has contravened that particular domestic violence order on the 26th day of March 2020, between about 10 am and 10.30 am. It’s alleged that the defendant approached the aggrieved’s vehicle whilst parked at the Toowong Village, Toowong. It will be alleged that the defendant basically approached the car and was – and eventually was let into the vehicle, thus contravening the order. [7] The learned Magistrate heard evidence from the aggrieved, who gave evidence that on 26 March 2020, she travelled in her motor vehicle from West End towards Toowong Village. She gave evidence that she saw the appellant’s vehicle near hers during the drive. She then gave evidence as follows: From there, he turned off and I proceeded on towards Toowong Village, so I thought that he had gone. And then I went into – I drove into Toowong and as I had parked and as I was walking towards the shopping centre, I saw his car drive through. I went into the shopping centre and I went into Coles and he also went into Coles and he walked straight past me, without making any contact with me at that point. And then from there, I saw him in line to get coffee and I went up to Kmart. And then I went out to the car park and I saw he had followed me out once I was in my car. And then he knocked on my door and my window and he told me that he wanted to get in. I said no to begin with, but then he kept on saying, “Just let me in, just let me in. It’s okay. Just let me in.” At this point, I did let him into the car. He got into the passenger side door and he said things like, “You fucked my entire life,” and that, “I know where your boyfriend lives,” and that everything that’s happening to him is my fault. And then I was in so much distress that I started crying and I told him to get the eff out of my car and he did. And then I drove off. [8] The aggrieved’s evidence as to the commission of the offence was not the subject of specific challenge during cross-examination. During cross-examination, the aggrieved admitted to meeting with the appellant in a park at a time between the making of a temporary protection order and the date of the alleged offence. She was asked why she did not make an immediate complaint to police about the alleged offence and answered as follows: Because I thought that if I just ignored it, it would go away. And what made me go to the police was because I found a bullet with Sam’s name on it in my car at my partner’s house, Sam, and my wheel nuts were loose and Sam has no known enemies. So that was the point where I just thought, “I need to do -- 3 of 14 -- 4 something about this, because I don’t know what he’s capable of if I just keep leaving it,” and that’s why I went to the police and just said everything. [9] The appellant gave evidence with the assistance of an interpreter. He gave evidence that he did attend Toowong Village Shopping Centre on the morning of 26 March 2020, arriving around 10.30 am. He said that he saw the aggrieved inside the Coles supermarket: Yeah, we came across each other, face to face, at the shopping centre and she smiled, I smiled back at her and she left … I didn’t talk with her. [10] He gave evidence-in-chief, in response to largely leading questions, as follows: Q: And you went straight to Coles? A: I go to Coles. Yeah. Q: And that’s where you … saw [the aggrieved]? A: Yeah, I see – yes. Q: Smiled and then … you went on your way? A: Yeah, I’m not talking to her or nothing because - - - Q: Because you know there’s an order in place and it’s just - - - A: Yeah. ... Q: So then you left Coles? A: I went to the coffee shop, took coffee … and I left. Q: And then went straight home after that? A: Yeah, I – yeah, straight home. [11] The cross-examination of the appellant commenced as follows. Q: [Appellant] … you would agree that you saw [the aggrieved’s] vehicle on Milton Road, would you? A: I didn’t take notice. I didn’t notice. Q: And you would agree that you approached [the aggrieved’s] vehicle when it was parked in the Toowong Village Car Park, would you? A: No. No, I didn’t have any conversation like that with her. Q: And you would agree that you knocked on the window and asked to gain entry to the vehicle, would you? -- 4 of 14 -- 5 A: So there is order in place. I wouldn’t do so, no, no. How would I do something like that? Q: And you would agree that [the aggrieved] let you into the vehicle and you got into the vehicle, would you? A: There is no – anything like that, no, nothing. Q: You would agree that you said to [the aggrieved] words to the effect of, “You fucked my life and I know where – who he is and where he lives,” referring to her current partner, [redacted], would you? A: How would she ruin my life and I’m in a relationship with someone else? … Q: Perhaps you could answer the question. Did he or did he not say those things? A: No, I didn’t. ... Q: Would you agree that when you left [the aggrieved’s] vehicle, you walked to your own vehicle, which was parked nearby; is that correct? A: What happened, I took my order – coffee order, I grabbed my coffee and I went to my car and I left. That’s what happened. [12] At the commencement of her ex tempore reasons, the learned Magistrate directed herself as to the fundamental principles of law that applied to her deliberations, including the onus and standard of proof. Her Honour stated the terms of section 177(1) and (2) of the DFVPA and noted the definition of “domestic violence order” as defined in section 23(2) of the DFVPA. Her Honour noted the terms of the protection order made on 10 March 2020, naming the appellant as respondent and the aggrieved as the aggrieved. Her Honour noted that section 189(2) of the DFVPA relevantly provided that a document purporting to be a copy of such an order was evidence of the making of the order and the matters contained in the order. Her Honour noted that the making of the order in those terms was not challenged and that she was satisfied beyond a reasonable doubt that the order named the appellant as the respondent, that he was present in Court when the order was made and that the order contained a condition that the respondent was prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved. Her Honour found that the protection order was in place on 26 March 2020. Her Honour then identified the real question as being whether the prosecution -- 5 of 14 -- 6 had proved beyond reasonable doubt there was a contravention of condition 3 of that order. [13] Before proceeding to determination of that issue, her Honour noted that at one point in the evidence of the appellant, he made comments suggesting that he did not understand the conditions of the order. Her Honour held that section 177 did not require the prosecution to prove that a defendant understood or comprehended a condition of the order but only required proof that the defendant was present when the order was made. In support of that conclusion, her Honour referred to the legislative history of the provision and case authority regarding the cognate South Australian legislation. [14] Notwithstanding that conclusion, her Honour stated as follows: Why I say that I do not consider that is raised, for completeness, because I am satisfied, in fact, that the defendant well knew he could not have contact with the aggrieved complainant because in cross-examination it was put to him, “You knocked on the window,” and he responded, “I would not do that. The order was in place. I would not do something when the order was in place.” So I am satisfied in any event he was aware of the requirements of the protection order. [15] Her Honour then went on to repeat the real issue in dispute in the proceedings, which she described as follows: So the fundamental issue is whether I am satisfied he has contravened the order, and I do not think it is in contention that if I accept the witness, [the aggrieved], as truthful and accurate, that I could be satisfied beyond reasonable doubt that he did, indeed, breach the contact condition. [16] Her Honour then went on to detail the evidence of the complainant, including the earlier quoted evidence of the complainant as to the appellant’s contact with her in the car park at the shopping centre. In making reference to the aggrieved’s evidence as to why there was no immediate complaint, her Honour stated as follows: She went home. She was shaken, but the reason why she did not tell anyone – she did not think she told anyone, she just hoped it would just blow over. She did not think about it. It was only when more serious actions occurred – and I’m not linking these to the respondent. Rather, it was her reasons for going. She went and found, it appears, a bullet with her new boyfriend’s name on it and her wheel nuts were loose. That is when she went to the police. And I make it plain I do not link in any way that the respondent was responsible for those acts. It was simply she was asked the reason it took so long for her to go and she gave that reason. -- 6 of 14 -- 7 [17] Her Honour summarised the evidence of the appellant before concluding as follows: Having seen and heard the witnesses, having regard to the matters I have already had, I am satisfied that [the aggrieved] was a truthful and reliable witness. This is because of these reasons: she was consistent in her testimony and, as we know from the defendant’s own evidence, she was correct about other elements, that is, the initial meeting in Coles and there was no close contact, that he was drinking coffee. She gave detail in her account as to what occurred. The reasons why she did not immediately go to police were credible. She did not attempt to make matters worse than they were. She did not – she was clear that when she told the defendant to go, he went. If she was – and there is no question she could’ve been mistaken. It was either she was lying or not about the confrontation in the park and would think that she may well have wished to make it somewhat worse than it was. Even allowing for difficulties of language and interpretation, the defendant’s evidence was not particularly impressive. He spoke of a fairly straightforward, almost harmonious end to the relationship. Her account showed the time and referring to the park conversation that that simply could not be true, and I note, as I indicated, that was not challenged, what occurred in the park. [The defendant’s solicitor] submitted quite correctly – [the defendant’s solicitor] said the Court has to be satisfied beyond a reasonable doubt and this is a word-against-word case. There is no CCTV or other evidence, and also even if I – it is not enough that I do not accept the defendant’s evidence. I still have to be satisfied, even if I reject that, beyond a reasonable doubt of his guilt, but for the reasons set out, I am satisfied, as I said, that [the aggrieved] was a credible, truthful and reliable witness and I am satisfied beyond a reasonable doubt he contravened a condition of his protection order that he had contact with her by stepping into the motor vehicle and speaking to her in the manner that she described. For the reasons on the record then I find him guilty. Nature of Appeal [18] An appeal against conviction pursuant to section 222 of the Justices Act 1886 (Qld) is to be conducted as a rehearing on the evidence below and on any new evidence adduced with leave.1 I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination. In order to succeed on such appeal, the appellant must establish some legal factual or discretionary error. Application to Adduce Further Evidence [19] The appellant sought to rely upon the contents of a bundle of documents filed on 26 August 2022. The respondent opposed the application to adduce further evidence, 1 Justices Act 1886 (Qld), s 223. -- 7 of 14 -- 8 citing the established authorities as to the admission of such evidence, including Gallagher v The Queen (1986) 160 CLR 392. [20] The contents of the bundle of documents filed on 26 August 2022 are as follows: (a) an affidavit of the appellant dated 25 August 2022 which merely restates, and does not usefully add to, his grounds of appeal; (b) a two-page typewritten letter of the appellant which likewise merely restates his grounds of appeal without usefully adding to them and then indexes the attached documents; (c) a statutory declaration of the appellant’s current partner, the contents of which are not relevant to any issue in the appeal; (d) a Verdict and Judgment Record dated 10 February 2022 recording the order of the Magistrates Court at Brisbane on 9 February 2022 dismissing an application for a Police Protection Notice. For reasons which I will refer to further, the contents of that document are not relevant to any issue in the appeal; (e) a text exchange regarding the appellant’s visa status, which is of no relevance to the issues in the appeal; (f) a text exchange between the appellant and another person regarding the aggrieved. The appellant in submissions confirmed that such text exchange occurred at a time prior to the Magistrates Court trial. It is not fresh evidence and in any event I do not see any basis for its admissibility. It does not appear to have any relevance to any issues in the trial or appeal; (g) a text exchange between the appellant and another person who was identified in the evidence at trial as being the new partner of the aggrieved and the subject of the ‘bullet allegation’. The appellant in submissions confirmed that such text exchange occurred prior to the time of the Magistrates Court trial. It is not fresh evidence and I do not perceive any basis for its admissibility during the trial or any relevance to the issues in the trial or this appeal; -- 8 of 14 -- 9 (h) a repetition and continuation of the text exchange referred to in (f) above, likewise occurring before the date of the Magistrates Court trial, not fresh evidence, with no apparent basis for admissibility or relevance to any issue in the trial or appeal; (i) a bank cheque dated 12 November 2021 which was said to show that the aggrieved stalked the appellant’s new partner by sending her a bank cheque. The admission of such evidence would not have resulted in any different verdict at trial and should not be admitted as evidence on appeal; (j) a repetition of the documents referred to at (g) above; (k) a text exchange between the aggrieved and the appellant’s employer, which the appellant confirmed occurred before the time of the Magistrates Court trial, and thus would have been available for cross-examination of the aggrieved regarding its contents, should the appellant’s solicitor have seen fit to do so, and subject to any objection to its admissibility, on the grounds of lack of relevance; (l) repetition of (f) above; (m) pages 1 and 2 of a social worker’s report regarding the appellant after meetings with the appellant in December 2021 and February 2022, which records statements by the appellant regarding matters which he did or could have given evidence about during the trial; (n) a type-written document prepared by the appellant indexing attached documents, which are all repetitious of text messages contained in the earlier material; and (o) part of page 1-10 of the transcript of proceedings in the Magistrates Court. [21] None of the material meets the legal test for admission of fresh evidence or new evidence. At trial, none of the material would have led to any different verdict by the Magistrate, and none of it would assist this Court in determination of the appeal. Leave to adduce such further material is refused. -- 9 of 14 -- 10 Grounds of Appeal [22] The Notice of Appeal states the grounds of appeal as follows: The offence did not take place. There was no evidence to support the conviction because the claimed incident did not happen. There was no breach of D.V. order conditions. [23] The appellant’s outline, filed 19 November 2021, states the grounds of appeal as follows: (1) The trial magistrate erred in considering the facts outlined by the complainant/witness at the hearing before returning a guilty verdict. (2) Procedural fairness. [24] In his submissions during the hearing the appellant expanded upon those grounds of appeal by submitting that there was “no proof” of the offence, “just the word” of the aggrieved. The appellant submitted that there was no evidence of the offence, but only the word of the aggrieved. He complained that the Magistrate accepted the word of the aggrieved without any supporting evidence. Consideration [25] It is tolerably clear that the principal argument on the part of the appellant is that there was insufficient evidence to sustain proof of the charge because the only evidence of his breach of the condition of the protection order was the oral testimony of the aggrieved. Such an argument is based upon a fundamental misunderstanding on the part of the appellant as to the criminal law and the law of evidence that applies to criminal proceedings in Queensland. There was nothing in law preventing the learned Magistrate from satisfaction, beyond reasonable doubt, of the offence notwithstanding that the only evidence of the offence was that of the aggrieved. There is no rule of law or evidence which prohibited the learned Magistrate from convicting the appellant upon the uncorroborated testimony of the aggrieved. It was open for the learned Magistrate to be satisfied, beyond reasonable doubt, of the guilt of the appellant, upon acceptance of the evidence of the aggrieved. As was clear from the reasons of the learned Magistrate, her Honour was so satisfied. After a careful examination of all the evidence, both from the prosecution and the defendant, the learned Magistrate concluded that the aggrieved was a truthful and reliable witness. That conclusion was, as a matter of law, one open to her Honour. -- 10 of 14 -- 11 [26] Upon my review of the evidence, after acknowledging the advantage the learned Magistrate had of seeing both the aggrieved and the appellant give evidence, I am also satisfied, beyond reasonable doubt, of the guilt of the appellant. The ground of appeal that the verdict was not supported by the evidence is not made out. [27] As to the reference in the appellant’s outline to “procedural fairness”, presumably an allegation that there was a lack thereof, this was not supported by any oral submissions by the appellant. He was represented by a solicitor during the trial and had the assistance of an interpreter. There is nothing on the face of the record of proceedings in the Magistrates Court to suggest any failure to afford procedural fairness to the appellant during the course of proceedings. [28] Some other matters are raised in the contents of the appellant’s outline. The first can be readily disposed of. The submission is made in these terms: No evidence is led that at the time of a Protection Order being made, was it established that an interpreter was present to explain the conditions of the Order. [29] The learned Magistrate’s reasons deal with such a matter. As quoted earlier, her Honour held as a matter of law that section 177(1) of the DFVPA only required proof that the respondent to an order was present in court when the order was made, rather than proof of a knowledge and understanding of the requirements of such order. [30] I agree with her Honour’s conclusion on such matter of law. I also agree with her Honour’s conclusion that even if there had been a relevant issue as to the appellant’s knowledge and understanding of condition 3 of the protection order, that the appellant’s own evidence during the trial clearly established that knowledge in any event. There is nothing in such contention now made on appeal. [31] The other matter raised in the outline of submissions is as follows: The Appellant was charge (sic) with multiple offences which were before the Magistrates Court at the same time. ... The appellant sought to enter pleas of not guilty to all charges. The single charge of, “Contravention of a domestic violence order” was heard by Her Honour whilst the remaining charges were adjourned to a later date. -- 11 of 14 -- 12 The appellant claims that had all charges been dealt with by Her Honour at the same time a guilty verdict to the charge in question would have been unlikely. ... The charges should have been hear (sic) together, the lack of evidence supporting the further Domestic Violence offences would have cause (sic) sufficient doubt to the occurrence of this offence. The subsequent offences were withdrawn by the prosecution on the day of hearing due to lack of evidence supporting a contravention of a protection order. [32] In attempting to understand such submissions I have had reference to a Schedule of Charges contained in the relevant Magistrates Court file. It indicates that the appellant was charged with the following charges: (1) Possession of dangerous drugs on 13 May 2020; (2) Possession of dangerous drugs on 13 May 2020; (3) Stealing on 27 April 2020; (4) Contravention of domestic violence order on 26 March 2020; and (5) Contravention of domestic violence order on 27 April 2020. [33] It was charge 4 that was the subject of the trial and conviction in the Magistrates Court at Brisbane on 7 July 2021 and this subsequent appeal. The record of proceedings in the Magistrates Court does not indicate any objection to such charge being heard separately to the other charges. Subject to any objection by the prosecutor and ruling as to relevance by her Honour, the appellant’s solicitor could have cross-examined the aggrieved about any matters concerning the other charges, if instructed to do so. The only questions of the aggrieved during her evidence about such matters appear to be the evidence quoted earlier as to her reasons for not making an immediate complaint regarding the breach on 26 March 2020, and only being prompted to do so because of some later perceived breach of the order. Her Honour properly limited the use of such evidence to the aggrieved’s reasons for the timing of her complaint, and specifically stated that she was not proceeding on the basis that the appellant was, in fact, guilty of any subsequent breach of the protection order. [34] It is not apparent to me, in any event, how the appellant could have been prejudiced by a separate trial of the charge. His argument is that, because the charges of stealing -- 12 of 14 -- 13 and contravention of a domestic violence order allegedly committed on 27 April 2020, were subsequently discontinued by the prosecution, that that would have necessarily impacted upon the credibility of the aggrieved, such that the learned Magistrate would have had such a doubt about the credibility of the aggrieved that she would not have been satisfied of the guilt of the appellant. That by no means necessarily follows. I do not know why the charges of stealing and contravention of a domestic violence order on 27 April 2020 may have later been discontinued by the prosecution. Submissions by the appellant seem to suggest that they were discontinued because the aggrieved did not appear to give evidence as to such matters. It is entirely speculative to suggest that had the aggrieved given evidence as to such matters during a joint trial of charges, that the learned Magistrate would have reasoned as contended by the appellant. Further, in the absence of particular exceptions which have not been established, the appellant is bound by the forensic choices made by his legal representative at trial. There is nothing in the argument of the appellant that would cause me to perceive any basis for allowing the appeal on such grounds. [35] Insofar as charges 1 and 2 above are concerned, the appellant stated that he had actually subsequently pleaded guilty to those offences. There is no basis for concluding that a separation of those charges from the one the subject of the trial caused any prejudice to the appellant. [36] None of the contentions asserted by the appellant in his Notice of Appeal, written submissions or oral submissions are made out. [37] There is another matter which I should mention for completeness. I asked the legal representatives for the respondent to make inquiries as to the contents of the Verdict and Judgment Record dated 10 February 2020, referred to earlier. Those inquiries reveal the following. The appellant filed an appeal on 7 April 2020 against the decision of the Magistrates Court at Brisbane on 10 March 2020 to make the protection order. That appeal was heard in this Court on 11 November 2020. The appeal was allowed, the protection order set aside and the application for the protection order remitted to the Magistrates Court at Brisbane for further hearing. The application for the protection order was ultimately dismissed in the Magistrates Court at Brisbane on 9 February 2022. The protection order the subject of the appellant’s conviction was thus only in place from 10 March 2020 until 11 November 2020. -- 13 of 14 -- 14 [38] The respondent submits that the setting aside of the protection order, on appeal, on 11 November 2020, is irrelevant to the question of the appellant’s breach of that order on 26 March 2020, given that the order was, in fact, in force on that date. The respondent further submits that it is not relevant that, at the time of the trial on 7 July 2021, the protection order was no longer in force. [39] I accept those submissions as a matter of law. The fact that the order may have subsequently ceased to have effect does not, as a matter of law, affect whether or not the appellant, on 26 March 2020, when the order was in effect, breached a requirement of such an order. Conclusion [40] It was open on the evidence for the learned Magistrate to be satisfied, beyond reasonable doubt, of the guilt of the appellant. Upon my review of the evidence, I reach the same conclusion as to the proof of the charge against the appellant beyond a reasonable doubt. The learned Magistrate has not made any legal, factual or discretionary error. [41] The appeal is dismissed. -- 14 of 14 --