Baker v Queensland Police Service [2022] QDC 109

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Queensland Police Service [2022] QDC 109 PARTIES: GREGORY MALCOLM BAKER (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO: 174 of 2021 DIVISION: Civil PROCEEDING: Appeal – s 222 Justices Act ORIGINATING COURT: Magistrate Court DELIVERED ON: 3 June 2022 DELIVERED AT: Townsville HEARING DATE: 24 February 2022 JUDGE: Coker DCJ ORDER: 1. The Appeal is dismissed. 2. The Appellant pay the Respondent’s costs fixed in the sum of $1,800.00. CATCHWORDS: CRIMINAL LAW – THE WEAPONS ACT 1990 (QLD) – APPEAL AGAINST DECISION TO REFUSE A COSTS APPLICATION BY A SUCCESSFUL DEFENDANT – where the learned Magistrate found the Defendant not guilty of 2 charges, 1 pursuant to the provisions of the Weapons Act and 1 pursuant to the provisions of the Criminal Code – whether the learned Magistrate had given inappropriate weight to one consideration arising pursuant to S158(A)(2) of the Justices Act 1886 (Qld). LEGISLATION: Justices Act 1886 (Qld), S 158, 158A, 222, 223(1). Weapons Act 1990 (Qld), S 58(2). Criminal Code Act 1899 (Qld), S 24, 458(4), 468(1). CASES: LIB v Queensland Police Service [2018] QDC 259, cited; Davies v Commissioner of Police [2016] QCA 246, considered; Robinson Helicopter Company Inc v McDermott [2016] HCA 22, considered. Fox v Percy [2003] HCA 22, cited; Warren v Coombes [1979] HCA 9, considered; -- 1 of 15 -- 2 McDonald v Queensland Police Service [2017] QCA 255, considered McPherson v Commissioner of Taxation (1998) QCA 396, cited House v R (1936) 55 CLR 499, cited COUNSEL: Honchin. D for the Appellant Lowrie. A for the Respondent SOLICITORS: Stevenson & McNamara for the Appellant Office of the Director of Public Prosecutions for the Respondent Introduction [1] On the 21st September 2021 Gregory Malcolm Baker, hereinafter referred to as the Appellant, filed a notice of appeal regarding a decision by Magistrate Mosch to dismiss his application for costs. To understand the nature of this application it is necessary to provide some background. [2] On 20th March 2021, the Appellant was charged with two offences, firstly a charge pursuant to S. 58(2) of the Weapons Act 1990 (Qld) that, ‘On the 1st day of July 2020 at Townsville in the State of Queensland one Gregory Malcolm Baker without reasonable excuse and by the use of a weapon, namely a firearm engaged in conduct alone which was likely to cause injury to a person.’ [3] The second charge was brought pursuant to S. 468(1) of the Criminal Code Act 1899 (Qld), that: ‘On the 1 st day of July 2020 at Townsville in the State of Queensland one Gregory Malcolm Baker wilfully and unlawfully killed a dog, the property of one James Bruce Watson.’ [4] For completeness, it should be noted that the wording of the Weapons Act offence was amended at the close of the prosecution case to omit the words, “injury to a person” and were substituted with, “alarm to another person”. [5] The two charges arose in the context of the Appellant, shooting and killing a white Arab cross dog on a rural property in the Black River Road area. The Appellant had -- 2 of 15 -- 2 the permission of the owners of various of the rural properties, to shoot dogs found on those properties, harassing cattle and other livestock, so as to protect the livestock. The white Arab cross dog which was shot, had come from a property adjoining that of a Mr Humphries, a property owner who had given the Appellant permission to shoot dogs on his property, if harassing cattle and other livestock. [6] The trial was heard over three days, the 15th July 2021, 22nd July 2021 and the 10th August 2021. Magistrate Mosch handed down his decision on 26 th August 2021, and in a comprehensive and detailed set of reasons concluded in respect of Charge 2, Ultimately, I am not satisfied beyond a reasonable doubt that the Prosecution has negatived a Defence available under section 458(4) of the Criminal Code, considered in conjunction with section 24 of the Criminal Code. In my view, killing the subject dog by shooting it involved using force reasonably necessary to protect cattle from injury, which the defendant believed on reasonable grounds to be imminent. Alternatively, I accept that the defendant honestly and reasonably but mistakenly believed this to be so. It, therefore, follows that, pursuant to section 458(4) of the Criminal Code, the defendant is not criminally responsible for killing the subject dog, such that killing the subject dog was excused by law. Such a finding is sufficient for me to find the defendant not guilty of the second charge on the basis that killing the subject dog was lawful. [7] Then, the learned Magistrate dealt with the first charge, under the provisions of the Weapons Act finding firstly, Given findings which I have already made, in my view, the defendant had a reasonable excuse for engaging in his conduct using a weapon on 1 July 2021, even if such conduct was likely to cause alarm to another person. In my view, this alone is sufficient for me to find the defendant not guilty of the first charge. [8] And additionally, Notwithstanding the evidence of Mr Godfrey about his subjective reaction, when I consider all evidence relevant to this charge, I am not satisfied beyond a reasonable doubt that, objectively, the defendant firing a single gunshot during daylight hours on a rural property adjacent to residential rural properties was -- 3 of 15 -- 3 likely to cause alarm to another person. This again, in my view, is sufficient for me to find the defendant not guilty of the first charge. [9] As such, a verdict of not guilty was entered on both charges. What followed then was an application on the part of the Appellant, for costs pursuant to S. 158(1) of the Justices Act, including for costs above scale. S. 158(1) is in these terms: 158 Costs on dismissal (1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable. [10] Of particular relevance in respect of the application for costs and now in respect of this appeal are the provisions of S. 158A of the Justices Act. There are specific considerations in the exercise of the discretion in relation to an award of costs against a Police Officer or Public Officer and the complainant in this matter was a Police Officer, Detective Sergeant Brett Andrew McLucas. S. 158A is in these terms: 158A Exercise of discretion in relation to an award of costs (1) Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made. (2) In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example— (a) whether the proceeding was brought and continued in good faith; and (b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and (c) whether the investigation into the offence was conducted in an appropriate way; and -- 4 of 15 -- 4 (d) whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and (e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and (f) whether the defendant unreasonably declined an opportunity before a charge was laid— (i) to explain the defendant’s version of the events; or (ii) to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and (g) whether there was a failure to comply with a direction given under section 83A; and (h) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and (i) whether the defendant was acquitted on a charge, but convicted on another. (3) If an order for costs under section 158 is made against a complainant who is a police officer or public officer (within the meaning of this subsection), the clerk of the court is to give to the defendant a certificate signed by the clerk showing the amount of costs awarded. (4) Subject to subsection (5), the defendant is entitled to be paid by the State the amount shown in the certificate within 2 months after payment is claimed. (5) If an appeal against an order for costs is made under section 222— (a) payment of the amount shown in the certificate is stayed until the appeal is decided; and (b) payment is to be made of the amount (if any) ordered or confirmed by further order made on the appeal. (6) In subsection (3)— -- 5 of 15 -- 5 public officer does not include— (a) an officer or employee of the public service of the Commonwealth; or (b) an officer or employee of a statutory body that represents the Crown in right of the Commonwealth; or (c) an officer or employee of a local government. [11] The appeal is brought pursuant to the provisions of section 222 of the Justices Act 1886. Section 222 is in these terms: 222 Appeal to a single judge (1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge. [12] The nature of the appeal was helpfully outlined in LIB v Queensland Police Service [2018] QDC 259, a decision of his Honour Judge Kent QC, where his Honour said the following: 11. Pursuant to section 223(1) of the Justices Act 1886 (Qld), an appeal under section 222 is by way of rehearing of the original evidence given in the proceeding at first instance before the magistrate. The nature of this process means that the Court “must, of necessity, observe the ‘natural limitations’ that exist” in such a procedure, such as the handicaps in evaluating witness credibility and not having heard, or been directed to, the whole of the evidence. 12. It is necessary, in order for the appeal to succeed, that a legal, factual or discretionary error be identified. The position was recently helpfully summarised in Davies v Commissioner of Police as follows: “[16] An appeal by way of rehearing involves the appellate Court conducting a ‘real review’ of the evidence given at the trial. In Robinson Helicopter Company Inc v McDermott, the High Court said: ‘A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the Judge has erred in fact or law. If the Court of Appeal concludes that the Judge has erred in fact, it -- 6 of 15 -- 6 is required to make its own findings of fact and to formulate its own reasoning based on those findings.’ [17] In Fox v Percy the plurality of Gleeson CJ, Gummow and Kirby JJ said: ‘Within the constraints marked out by the nature of the appellate process, the appellate Court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons. Appellate Courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that: “[I]n general an appellate Court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate Court will give respect and weight to the conclusion of the trial Judge but, once having reached its own conclusion, will not shrink from giving effect to it.” As this Court there said, that approach was ‘not only sound in law, but beneficial in … operation’. [18] In McDonald v Queensland Police Service, Bowskill J said that: ‘It is well established that, on an appeal under section 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.’ [19] In conducting a review of the evidence, any advantage the magistrate had in seeing and hearing the witness should be considered.” 13. Thus what is required is a “real review” as to whether there is error as described. -- 7 of 15 -- 7 [13] Notwithstanding what is said above, the nature of this appeal is a little unusual in that there is no rehearing required in respect of the actual charges, but rather a specific need to consider whether there has been an error in the exercise of the learned Magistrates discretion. Helpfully, the outline provided by the Appellant summarises the findings of the learned Magistrate in respect of the application for costs pursuant to S. 158(1) of the Justices Act. Those findings were submitted to include: On the application for costs pursuant to s. 158(1) of the Justices Act (and costs at above scale) His Honour found: (a) the Appellant had raised concerns about the charges prior to trial … and some of those concerns were met with an application to amend the charge at the beginning of the trial – and later re-agitated when the evidence was completed; (b) the prosecution case did not lead evidence of the destroyed dog attacking or about to attack cattle – the defence was raised on the Appellant’s evidence; (c) that the prosecution was brought and continued in good faith – relying upon the amendment of Charge 1 following the submission of exhibit C1; (d) the delay in bringing the charge appeared to reflect the careful consideration of the matter where the Appellant was a former sworn police officer; (e) the Appellant did nothing to bring suspicion upon himself – indeed he proactively alerted police to the incident; (f) the Appellant declined to give an interview (which he was lawfully entitled to do) and significant evidence which led to the Not Guilty verdicts was not thereby given to police by him – noting it was speculative as to whether the Police would have continued with the charges even if he had given evidence to them; [14] After specifically noting those matters found by the learned Magistrate, the Appellants counsel submitted that a matter emphasised by the Magistrate was that it -- 8 of 15 -- 8 was significant that it was evidence adduced by the Appellant which was relied upon to a considerable degree to find the Appellant not guilty. [15] Thereafter the Appellant’s counsel addressed the argument before this court, namely, whether the learned Magistrate placed too much weight on the specifics of s. 158A(2)(f)(i) and correspondingly, insufficient weight to the other considerations arising pursuant to S. 158A(2). [16] Both the Appellant and the Respondent referred specifically to the decision in MacPherson v Commissioner of Taxation (1998) QCA 396, and to the comments of McPherson JA in respect of the matters which must be considered by the court when considering an award of costs. McPherson JA accepted that s. 158A was a, “virtual codification of the leading factors to be considered in deciding whether costs should be awarded against a Police Officer or a public officer whose complaint is dismissed by Justices”. His Honour went on to note however as follows, … the discretion invested by s. 158A to award costs to a successful defendant in summary proceedings is regulated by a series of statutory provisions which identify in some detail considerations that are relevant in exercising that discretion. Costs are to be ordered in favour of such a defendant specifically against a police officer or public officer “only” if the justices are satisfied that it is proper that the order should be made: and, in deciding whether it is proper to make the order, consideration “must” be given to a series of factors that are specified. [17] Ultimately, McPherson JA noted that, “the question remains whether it is ‘proper’ to make the order and that the considerations specified in the paragraphs of S158A(2) are given only by way of ‘example’, so leaving the justices with the general duty of taking into account, ‘all of the relevant circumstances’”. [18] Those “relevant circumstances” are argued on behalf of the Appellant and the Respondent from their differing perspectives. The Appellant’s argument was detailed as follows: In the present case it is submitted that prosecution has failed to prove essential elements of the charge. It is not a merely technical argument. Exhibit C1 identified the permission given to the Appellant (from a Crown witness which -- 9 of 15 -- 9 the Crown could explore), that given the Crown’s evidence and witnesses the Crown could not negate that the dog was attacking or about to attack cattle or that the Appellant reasonably believed that to be so. The Caretakes evidence (in his statement and held by Police) showed that he was aware of the problems with the dogs chasing and attacking cattle. His statement also included evidence the owner of the dog has been told to keep his dog off the property or it would be shot. The onus was upon the Prosecution to negate the defence of mistake of fact as to the belief of the Appellant as to the actions of the dog and the reasonableness of the actions of the Defendant – in the context of what the Prosecution already knew about the problem with dogs in the area, the permission given to the Appellant by the owner of the rural property and the dog having been seen on the property by Crown witnesses, In the circumstances the Crown were never going to be able to exclude the reasonableness of destroying the dog on the rural property or negate any mistake belief of the Appellant in the context of the history of the problem with dogs which was known or knowable by the Prosecution through their witnesses. [19] From the Respondent’s outline it is clear that there is no concession that the prosecution, “… were never going to be exclude the reasonableness of destroying the dog … or negate any mistake(n) belief of the Appellant…”. The Respondent’s position regarding the evidence was detailed in the outline provided by the Respondent and emphasised the various points arising from the witnesses’ evidence to the effect that, there was no evidence that the dog on the day was actually interfering with the cattle or was in the vicinity of the cattle. [20] Additionally, the Respondent’s Counsel emphasised the significant amounts of evidence that the dog had previously been seen at and on the property and that it had been able to be removed without shooting it. Further, the Respondent’s outline stressed that the alternatives to those points only arose when the Appellant gave his evidence and that did not occur until the trial itself. [21] The learned Magistrate specifically noted this in his decision, recognizing the evidence of the Appellant as well as differences or as he put it, “prima facie some inconsistency between evidence from the Defendant and evidence from Mr Keppel about the subject dog engaging with cattle on 1st July 2021”. His Honour said: -- 10 of 15 -- 10 The defendant gave evidence of his observations of the subject dog on 1 July 2020 in relation to it engaging with cattle on the property owned by Mr Humphries. I took it from his evidence that this engagement occurred in the paddock furtherest from Black River Road, where cattle had been positioned while Mr Keppel was attending to his duties. There is, prima facie, some inconsistency between evidence from the defendant and evidence from Mr Keppel about the subject dog engaging with cattle on 1 July 2021, insofar as Mr Keppel said there were no cattle near the subject dog or in the paddock where the subject dog was shot. However, in my view, any inconsistency is reconciled on the basis that the evidence from the defendant of the subject dog engaging with cattle occurred earlier in time and related to the paddock furtherest from Black River Road, in which the cattle had been positioned while Mr Keppel was undertaking his duties. It was after this that the defendant telephoned Mr Keppel and alerted him to the presence of the subject dog, by which time it seems the subject dog had moved away from the cattle and into the paddock in which it was ultimately shot. Given evidence from the defendant as to what the subject dog was doing prior to being shot, in the context of section 458(4) of the Criminal Code, it is necessary for me to consider: (1) whether there were reasonable grounds for the defendant to believe injury to cattle was imminent, and; (2) whether killing the subject dog by shooting it was reasonably necessary for the purpose of protecting cattle. I have considered the first issue in the context of the evidence: (a) about dogs generally chasing and attacking cattle on the property owned by Mr Humphries and injury, thereby, caused to cattle; (b) evidence from the defendant of his observations of the subject dog engaging with cattle on 1 July 2020; (c) evidence from the defendant that he did not know where the subject dog came from or where it belonged, and given the subject dog had -- 11 of 15 -- 11 been chasing cattle, he believed from previous experiences with dogs that it was going to keep chasing cattle. [22] Quite properly his Honour considered those pieces of evidence, their differences, and how he resolved such inconsistencies. He then explained quite precisely how he reached his decision in respect of the second Charge, noting in his decision, those matters noted earlier in those reasons. [23] The learned Magistrate then addressed the first charge and referring again to his previous findings, found the Defendant not guilty. [24] I have addressed these matters at some length because the reasoning and findings made by the learned Magistrate are at the forefront in his decision regarding any award of costs. His Honour detailed the need, in the circumstances to consider S. 158A and addressed the need to “take into account all relevant circumstances including some items set out therein.” [25] The learned Magistrate then specifically addressed the relevance of the email from Counsel for the Defendant (Appellant) to the prosecution on 13 th July 2021, admitted as Exhibit ‘C1’. Noting the contents and context of that email His Honour then specifically went on to state Whilst this email canvassed whether the Prosecution might be able to show whether or not the subject dog was attacking or about to attack animals, or whether the defendant had some belief about the subject dog attacking or about to attack a defined animal, in the case presented on behalf of the Prosecution there was no evidence to suggest this was so. Ultimately, it was evidence which the defendant himself gave at trial that raised the possibility of a Defence under section 458 of the Criminal Code, considered in conjunction with section 24 of the Criminal Code. I acknowledge it was ultimately the Prosecution which bore the onus of negativing any such Defence, and I ultimately found it was unable to do so beyond a reasonable doubt, but it remains – it was not so much this email dated 13 July 2021 which raised the prospect of such evidence, but it was, in fact, the defendant himself giving evidence at trial. -- 12 of 15 -- 12 [26] The learned Magistrate then addressed comprehensively, what he described as, “examples offered in S. 158A of the Justices Act to decide whether it is proper to make an order for costs”. His Honour then at considerable lengths addressed those matters that he considered arose for his consideration pursuant to S. 158A(2) of the Justices Act. [27] He found that the proceeding was brought and continued in good faith and explained why, Subsection (a). He considered the nature of the charges, the number of witnesses and exhibits tendered and the need for there to be appropriate steps taken and found, noting that the matter may have in fact been over investigated and that in the circumstances he recognised the need for care, Subsection (b). [28] The learned Magistrate considered Subsection (c) and whether the offence was investigated in an appropriate way. He noted the complaint made about the circumstances in which a search warrant was executed and how many weapons were seized but went further to consider all of the investigation, noting that it seemed, “full and thorough”. [29] In addressing Subsection (d) his Honour noted that there was not a dismissal on technical grounds but rather arising from the findings that he made. In respect of this consideration and that relating to subsection (e) he noted Ultimately, whilst that evidence may have been insufficient to convict the defendant, it turned not so much on the primary evidence adduced by the Prosecution, but rather evidence which the defendant himself gave at trial which raised possible Defences – certainly, in relation to the second charge – which I ultimately concluded had not been negatived by the Prosecution beyond a reasonable doubt. That finding, at least in part, was relied upon me to find that the defendant did have a reasonable excuse to engage in conduct associated with the first charge, and I otherwise found there was no evidence to satisfy me beyond a reasonable doubt, objectively, that the defendant had engaged in conduct likely to cause alarm to another person. Having said this, I do have to consider what evidence the Prosecution had from Mr Godfrey. It is not clear to me to what extent the Prosecution otherwise had evidence prior to trial from the likes of Mr Humphreys and Mr Keppel, which I -- 13 of 15 -- 13 also relied upon in forming a view that the defendant did not engage in conduct likely to cause alarm to another person. I accept there is nothing to suggest the defendant brought suspicion upon himself by his conduct after engaging in the events that constitute this offending. In fact, if anything, he acted proactively to alert police to what had occurred. [30] His Honour then addressed S. 158A(2)(f), which it is argued on behalf of the Appellant, was given such weight that it was determinative of the learned Magistrates decision as to costs. I could not disagree more completely with this submission. His Honour said: In relation to whether the defendant unreasonably declined an opportunity before a charge was laid to explain his version of events or otherwise produce evidence likely to exonerate him, and whether such explanation or evidence may have avoided a Prosecution, it is common ground that the defendant was offered an opportunity to take part in a record of interview. He declined to do so which he was fully entitled to do. It has, though, led to a situation where significant evidence that I have ultimately relied upon to find the defendant not guilty was adduced only by the defendant when giving evidence during the trial. It may, of course, be speculative as to whether if he had taken part in a record of interview and given this evidence earlier, police would have nonetheless proceeded with a Prosecution, but it does become relevant in terms of an application for costs. [31] Thereafter the learned Magistrate addressed those other relevant circumstances arising for consideration pursuant to subsections (g), (h) and (i). He then explained his reasoning, in light of all the matters for consideration as to why he was not satisfied that it was proper to make a costs order. He said The ultimate test for me is whether I am satisfied it is proper that an order for costs should be made, and that if so, it is to be such costs as seem to me to be just and reasonable. I have taken all of these factors into consideration. Ultimately in my view, it is significant that it was evidence which the defendant himself adduced at trial which was relied upon by me heavily in finding him not guilty of the second charge, and which at least in part led to me finding him not guilty of the first charge. I acknowledge even without that evidence, he may have had some prospect of successfully defending the first charge, but that may, of -- 14 of 15 -- 14 course, be dependent upon whether or not evidence from Mr Humphreys and Mr Keppel on this charge would otherwise have been available at trial. In my view, having regard to all of these circumstances, I am not satisfied that it is proper to make an order for costs. [32] I am mindful of the clear direction and guidance provided to Appellate court in House v R (1936) 55 CLR 499 and of the many authorities that followed. I should not be influenced by whether I might have reached a different conclusion in the exercise of my discretion but rather whether there is some identification of error made in the exercise of discretion. [33] There is no such error identifiable in the decision of the learned Magistrate let alone any possibility that His Honour did not properly weigh all of the considerations in reaching his decision. Accordingly, the appeal is dismissed and I order that the Appellant pay the Respondent’s costs fixed in the sum of $1,800.00. -- 15 of 15 --