Billeau v Brisbane City Council [2020] QDC 297

DISTRICT COURT OF QUEENSLAND CITATION: Billeau v Brisbane City Council [2020] QDC 297 PARTIES: Jennifer Billeau (Appellant) v Brisbane City Council (Respondent) FILE NO/S: 3097/19 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 19 November 2020. DELIVERED AT: Brisbane HEARING DATE: 25 September 2020. Further written submissions received 6 November 2020. JUDGE: Byrne QC DCJ ORDERS: 1. Appellant’s application for leave to adduce further evidence is dismissed. 2. Appeal allowed. 3. Verdicts of acquittal entered on all charges. 4. All orders made in the Brisbane Magistrates Court on 31 July 2019 concerning the appellant are vacated. 5. The respondent to pay the appellant’s costs of the appeal. CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was charged with three offences against the Biosecurity Act 2014 (Qld) – where the appellant was convicted ex parte pursuant to section 142A of the Justices Act 1886 (Qld) – where the appellant was sentenced in person on a later date - whether the conviction is unreasonable or cannot be supported by having regard to the evidence – whether the appellant was denied procedural fairness – whether the sentence imposed was manifestly excessive – whether the Magistrate erred in failing to have regard to a sentence of imprisonment as a last resort. -- 1 of 12 -- 2 LEGISLATION Australian Solicitors Conduct Rules 2012, rule 29.1. Barristers’ Conduct Rules 2018, rule 82. Biosecurity Act 2014 (Qld), s 24, s 45, s 377. Justices Act 1886 (Qld), s142A, s 222, s 223. CASES Allesch v Maunz (2000) 203 CLR 172. Fox v Percy (2003) 214 CLR 118. Gallagher v The Queen (1986) 160 CLR 392. Guy v McLoughlin & Anor [2006] QDC 17. House v The King (1936) 55 CLR 499. McDonald v Queensland Police Service [2018] 2 Qd R 612. Pavlovic v Commissioner of Police [2006] QCA 134. R v Dalton [2020] QCA 13. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679. Spies v The Queen (2000) 201 CLR 603. COUNSEL: Mr A. Mason for the appellant. Mr M. Spencer (sol) for the respondent. SOLICITORS: Townes Lawyers for the appellant. City Legal for the respondent. Background [1] On 24 July 2019 the appellant was convicted, in her absence, in the Brisbane Magistrates Court of three offences against the Biosecurity Act 2014 (“BA”), namely: 1. Giving food to a category 6 restricted matter – s 45(1)(c) of the BA. 2. Failure to comply with a biosecurity order – s 377 of the BA. 3. Failure to discharge a general biosecurity obligation in relation to a restricted matter – s 24(1)(b)(ii) of the BA.1 [2] On 31 July 2019 she was sentenced, in her presence, to three months’ imprisonment, wholly suspended with a two year operational period. That sentence was imposed in respect of the third charge. In respect of the two other offences, she was convicted and not further punished, but in each instance convictions were recorded. [3] Additionally, the offences were found to breach a good behaviour bond imposed on 6 July 2018 for a number of offences, including offences under the BA. As a consequence she was ordered to forfeit a $1,000.00 recognisance. She was also 1 These charges reflect an amended complaint and summons filed by leave on 18 November 2019. -- 2 of 12 -- 3 ordered to pay the costs of both days’ proceedings in the Magistrates Court, totalling $2,000.00. [4] The appellant appeals against conviction on two grounds, namely that the conviction is unreasonable or cannot be supported having regard to the evidence and, secondly that the appellant was denied procedural fairness. [5] She also appeals against sentence on the basis of manifest excess, but in oral submissions also argued specific error, namely that the Magistrate erred in failing to have regard to a sentence of imprisonment as a last resort. Nature of the appeal [6] The appeal has been brought pursuant to section 222 of the Justices Act 1886 (“JA”), and so is by way of rehearing on the record. Section 223(2) of the JA allows for leave to be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. [7] In an appeal of this nature it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.2 The onus is held by the appellant to show that there is some error in the decision under appeal.3 [8] The ground of appeal referring to an unreasonable verdict directs attention to the tests espoused by the High Court in considering appeals of that nature.4 In the event that error is demonstrated, I must consider the whole of the evidence to determine whether guilt has been proven beyond reasonable doubt on any or all of the three charges. [9] In so far as the appeal is against the sentence imposed, the complaint is against the exercise of a discretion, and the principles in House v The King5 are apposite. Factual background [10] The listing history of the matter is relevant to the ground alleging a denial of procedural fairness. The prosecution was first mentioned in the Magistrates Court on 28 September 2018. The appellant in fact failed to appear that day and a warrant was issued, but it was ordered to lie on the file until the next mention in October 2018. [11] The appellant appeared on that date and the warrant was revoked. There followed a regular series of mentions. On one occasion the appellant successfully applied for an adjournment and provided a medical certificate in support of her application. On 2 Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 3 Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service, ibid. 4 These principles, in the context of a jury trial, were helpfully summarised in R v Dalton [2020] QCA 13, [173]-[181]. 5 (1936) 55 CLR 499, 505-506. -- 3 of 12 -- 4 22 March 2019 the appellant appeared and confirmed she had received the brief of evidence. The matter was that day listed for a hearing to commence 24 July 2019. [12] On 16 April 2019 the appellant attempted to send an email to both the Magistrates Court and the respondent requesting an adjournment to obtain further evidence and to allow a person she nominated as her legal representative to recover from surgery. That email was not received by either intended recipient due to it being sent to incorrect email addresses. [13] At 4.51pm on 23 July 2019, that is the day before the listed hearing, the appellant forwarded the email of 16 April 2019 to the correct email addresses. A further message indicated that sought an adjournment also because of the need to care that day for her 95 year old mother who was suffering a medical emergency. [14] On the day of the hearing, the appellant did not appear. The respondent both successfully opposed an adjournment of the matter and applied for the matter to be heard ex parte pursuant to s 142A of the JA. The respondent informed the Magistrate that the person nominated as the appellant’s legal representative had informed them that he did not hold instructions, and did not expect to. [15] The central allegation against the appellant was that she fed a non-domestic cat in breach of orders and biosecurity obligations that applied to her. [16] As part of a non-domestic cat capture program being conducted by the respondent, a CCTV camera was set up at an address in a particular street in Coopers Plains, which was an abandoned house. It captured the appellant placing a container of food on the ground and “a cat” later coming and eating from the container. Footage from the camera was tendered at the hearing. [17] A Biosecurity Order and Information Notice dated 21 April 2017, and which had been served on the appellant, banned her from attending or being in the vicinity of, amongst others, the particular street in Coopers Plains. It also ordered that she was to stop feeding non-domestic cats. The order had no expiry date recorded on it. The appellant breached that order if she fed a non-domestic cat and/or attended or was in the vicinity of the particular street in Coopers Plains. [18] The Magistrate was also informed during the course of the hearing of statistics from the conduct of the cat capture program in areas of Brisbane including Coopers Plains going back to 2015. By way of summary, the vast majority, but not all, of the cats captured were determined to be non-domestic cats. Once a cat was captured under the program, it was physically assessed “through their physical traits, through their mannerisms, through checking to see whether or not they had collars, registration and their general health”.6 There is no suggestion that the lone cat seen in the CCTV footage feeding on the food left by the appellant had been physically assessed. 6 TS1-8, ll 28 – 29. -- 4 of 12 -- 5 [19] The Magistrate was also generally informed of the prosecution’s intention to call the officer that oversaw the cat capture program. The purpose of calling this witness was for him to testify about the detriment caused by “feral cats” (which I assume to be non-domestic cats) which in turn extends to and leads to relevant biosecurity risks. [20] The Magistrate was presented with a summary of the allegations, consistent with that outlined above, and concluded that the evidence available to the prosecution resulted in a “strong case”. In light of that finding and given the history of the matter, her Honour concluded that the matter should proceed ex parte under s 142A of the JA. That is, the adjournment application was refused. [21] Her Honour was then provided with a summary of the facts, again consistent in relevant respects with that outlined above, and she found the appellant guilty of each of the charges. In doing so her Honour made only brief findings, referring to the fact that she had read the particulars attached to the complaint and summons, and agreed with the prosecutor’s submissions that guilt was established. After hearing submissions on sentence, her Honour agreed that a sentence of suspended imprisonment was likely and accordingly adjourned the hearing to allow the appellant the opportunity to appear to make submissions.7 Sentencing occurred on 31 July 2019. Legislation [22] The scheme of the BA need not be considered in detail for the purposes of this appeal. It is sufficient for present purposes to note that the first charge expressly alleged that the appellant unlawfully gave food “to a category 6 restricted matter”, which was particularised as a non-domestic cat. The second charge alleged that the appellant conducted herself in breach of the requirements of a Biosecurity Order. The particulars of that offence alleged that she breached the Order by giving food to “non- domestic cats”. In fact, given the terms of the Biosecurity Order,8 it could have been legitimately particularised as mere attendance at the particular street in Coopers Plains. However it was not particularised in that way, and the prosecution case must be assessed against the particulars provided. The third charge alleged a breach of a biosecurity obligation, which was particularised as being the feeding of non-domestic cats. [23] It can be seen that the words “non-domestic cat” are not found in any of the three charges. The first charge refers to a “category 6 restricted matter” which by definition includes a non-domestic cat.9 Otherwise the phrase non-domestic cat is only found in the particulars in the amended complaint and summons upon which the prosecution proceeded. 7 S 142A(6) of the JA. 8 Exhibit 1. 9 BA, Schedule 2, Part 2. -- 5 of 12 -- 6 [24] The word “domestic” in relation to a cat means a cat that is owned by a person.10 It follows that a non-domestic cat is a cat that is not owned by a person. [25] Therefore, in the circumstances of this prosecution, an essential aspect of proof in respect of each charge was that the charged conduct involved a non-domestic cat. [26] The extent of the power granted by s 142A of the JA is presently relevant. That provision relevantly provides: “142A Permissible procedure in absence of defendant in certain cases (1) Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section. (4) Where— (a) a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and (b) the defendant is required to appear at a time and place fixed for the hearing of the complaint— (i) by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or (ii) under a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980 ; or (iii) by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and (c) the defendant does not appear at the time and place fixed for the hearing of the complaint; the court before which the complaint comes for hearing, … may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath 10 BA, Schedule 4. -- 6 of 12 -- 7 before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint. (5) In dealing with and determining a complaint pursuant to subsection (4) the court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant in relation to the circumstances of the matter of the complaint and the imposition of a penalty. (12) Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit. The parties’ submissions [27] The appellant submits that the Magistrate erred in refusing to adjourn the hearing and in determining the complaint ex parte. In support of the submission she seeks to rely on her own affidavit which: (a) deposes that she did not attend court on 24 July 2019 because her mother was unwell, and attaches a medical certificate dated 24 July 2019 to the effect. (b) deposes that she did not produce the medical certificate when she attended court on 31 July 2019 because she was unaware the Magistrate would consider it. (c) deposes to a number of physical medical conditions she suffers. (d) attaches a letter dated 5 April 2018 from a psychologist referring to psychological conditions suffered by the appellant, at least at that time. [28] Further the appellant submits that the material placed before her Honour was insufficient to find that the cat depicted in the CCTV footage was a non-domestic cat. [29] As to the appeal against sentence, she submits that the Magistrate erred by failing to consider that, in the circumstances of these charges, imprisonment was a sentence of last resort. Further it is submitted the sentence imposed was manifestly excessive. Leave is sought to pursue the former ground of appeal, which was not pleaded on the notice of appeal. [30] The respondent submits that the refusal of the adjournment and the decision to proceed ex parte is a complaint concerning an exercise of discretion rather than a denial of procedural fairness. It is submitted that it was open to proceed as her Honour did. It is further submitted the additional evidence should not be received. -- 7 of 12 -- 8 [31] Further, it is submitted that because the appellant did not avail herself of the procedure for re-hearing under s 142A(12) of the JA, she cannot rely on matters relevant to the conviction appeal that were not placed before the Magistrate,11 or which ought to have been apparent to the Magistrate. It is said that the convictions are not susceptible to attack on appeal in these circumstances. As to sentence, the respondent submits the transcript reveals that the Magistrate correctly considered options other than imprisonment and, that the sentence imposed was, in all of the circumstances, an appropriate exercise of the sentencing discretion. Consideration Admissibility of the Affidavit [32] By s 223 of the JA this appeal is by way of re-hearing on the evidence adduced below.12 However a discretion exists to receive fresh, additional or substituted evidence if the court is satisfied there are “special grounds” for giving leave.13 [33] The statutory requirement for special grounds to be established recognizes the starting position that the appeal must be conducted by way of re-hearing on the original evidence. However, the provision gives no guidance as to what will amount to “special grounds”. [34] I consider that a determination of whether “special grounds” exist can be usefully informed by common law considerations as to the admissibility of fresh or new evidence in appeals,14 although other considerations may also be relevant in particular circumstances. [35] In the present matter only the medical certificate concerning the appellant’s mother’s medical condition on 24 July 2019 can be said to be fresh evidence, and even then it only confirms information already before the Court. The assertion that the appellant did not bring it to Court on 31 July 2019 because she did not think the Magistrate would act on it cannot be accepted, given she had provided a medical certificate in order to obtain an earlier adjournment. [36] The rest of the matters in the affidavit are clearly matters that were known to the appellant at the relevant time and so must be classified as new evidence, rather than fresh evidence. [37] However, whilst the potential relevance of the medical certificate is obvious the same cannot be said for the other matters mentioned in the affidavit. They simply do not rationally affect the issues raised in the conviction appeal and are inadmissible in that aspect of this appeal. 11 Citing Guy v McLoughlin & Anor [2006] QDC 17. 12 S 223(1) of the JA. 13 S 223(2) of the JA. 14 Pavlovic v Commissioner of Police [2006] QCA 134. -- 8 of 12 -- 9 [38] Although I accept they may be relevant on the sentence appeal, given the conclusions I have reached it is unnecessary to consider their admissibility on that basis any further. [39] The consequence is that the medical certificate is admissible if its admission at the time of the hearing “might reasonably” have resulted in a different outcome.15 [40] In refusing the adjournment application, reveals that noted that no medical certificate was provided to substantiate the assertion of the mother’s medical condition. However, the gravamen of the decision was an acceptance that the prosecution case was “strong” together with the listing history of the matter, meaning that it was desirable the matter not be adjourned. [41] Although, for reasons to be explained, I do not accept the prosecution case was in fact strong, it seems to me that even if the medical certificate had been provided it was not reasonably possible that the adjournment would have been granted. [42] Accordingly I dismiss the application for leave to admit the appellant’s affidavit dated 25 September 2020. Appeal against conviction [43] I accept the respondent’s characterization of the decision to refuse the adjournment and to proceed ex parte as being an exercise of discretion. The application to adjourn the hearing found in the email sent by the appellant late on 23 July 2019 was considered by the Magistrate. There was no denial of procedural fairness because the application was in fact considered. An erroneous exercise of discretion will rarely amount to a denial of procedural fairness and it has not occurred in this case. [44] As noted earlier, each of the charges required proof that the charged conduct was undertaken in respect of a non-domestic cat. I accept the appellant’s submission that the material placed before the Magistrate was incapable of proving beyond reasonable doubt that the cat fed by the appellant was a non-domestic cat, as opposed to a domestic cat. [45] The only verbal submission touching on the status or nature of the cat fed was that it was “a cat”,16 that the respondent was undertaking a cat capture program to limit the impact of non-domestic cats in that area and the tender of statistics from that program. The former submission did nothing to identify the animal as being non-domestic. The latter two submissions raised a likelihood that it was non-domestic, but not to the point of excluding domesticity beyond reasonable doubt. [46] I have viewed the CCTV footage that was tendered at the hearing. It shows the appellant placing one or more containers of food on the ground. As she leaves, a cat, 15 Gallagher v The Queen (1986) 160 CLR 392, 395 – 396. 16 TS1-12, l 5. -- 9 of 12 -- 10 apparently without a collar, approaches and eats the food. It does not show where the animal came from nor where it went to. [47] The fact that the cat is uncollared is consistent with it being a non-domestic cat but, even in conjunction with the inference from the respondent’s program being conducted in that area and the statistics arising from it, it does not prove the allegation beyond reasonable doubt. For example it might well be that a local resident’s loved pet found a window open, decided to have a wander through the neighbourhood and fortuitously and literally came across a midnight snack. There are other innocent scenarios that also give rise to a reasonable doubt. [48] Although the Magistrate was informed that under the program the captured cats are assessed as to domesticity against observable criteria (which did not occur here), I do not accept that the only means of proving the allegation is by the capture and inspection of the animal. Each prosecution must be conducted on its own facts, and the facts in this prosecution are not sufficient to prove the element of charge 1, nor the elements of all charges as they are informed by the particulars. [49] Section 142A of the JA in effect requires the presiding Magistrate to have regard to the facts and particulars alleged and empowers the court to proceed in the absence of the defendant “if it is satisfied that the facts…as stated by the complainant according to law constitute such a simple offence”. In this prosecution, the Magistrate expressed her satisfaction of that issue, but was in error in doing so. Accordingly, it was an error to proceed in the absence of the appellant. [50] The respondent submits that the matters agitated herein should have been the basis for an application to re-open the hearing under s 142A(12) of the JA, and because the appellant has chosen to bring an appeal rather than a re-opening application, the matters she can properly raise are limited. By implication it is submitted that the matters now raised cannot be relied on in an appeal against the exercise of jurisdiction under s 142A of the JA. [51] In Guy v McLoughlin & Anor17 McGill SC DCJ stated: “[10] Accordingly what I am concerned with is an appeal against an exercise of jurisdiction under section 142A. Such an appeal does not entitle the appellant to raise any matter not raised before the magistrate, or which ought not to have been apparent to the magistrate at the time of the hearing. That does not mean that there is no effective right of appeal, but obviously an appeal in these circumstances can only be on a very limited basis. …. [11] A person who is convicted on an offence under section 142A and who wishes to challenge the merits of that conviction is required to follow the statutory procedure in subsection (12), and apply for a rehearing. … In 17 [2006] QDC 17, [10], [11]. -- 10 of 12 -- 11 my opinion in the absence of an application under subsection (12) for a rehearing, it is not open by an appeal under section 222 against a conviction pursuant to section 142A to raise issues which were not raised before the magistrate as to whether the appellant was really guilty of the offences charged. That follows from the structure of section 142A, and is in any event consistent with the general rule in relation to appeals that factual issues cannot be raised for the first time on appeal.” [52] I agree with his Honour, but doubt that he intended those statements to be taken to be an inflexible statement of the law. In any event, they do not preclude the successful prosecution of the appeal; the inability to prove that the conduct the subject of each charge involved a non-domestic cat was a matter that ought to have been apparent to the Magistrate at the time of the hearing and was also necessarily an issue raised before the Magistrate as to whether the appellant was really guilty of the offences charged. [53] In so finding I do not intend to be critical of her Honour. None of the charges, in their wording, directly refer to a “non-domestic cat”, and the words are only used in the particulars of each charge. In those circumstances it was a matter easily overlooked, and the fact that the prosecutor did not make any submission as to why the observed feline was in fact non-domestic did not assist her Honour. [54] The issue arises whether an order should be made for a re-hearing, or for the entry of verdicts of acquittal. [55] A majority of the High Court in Spies v The Queen18 said: “Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge.” [56] On the material placed before the Magistrate, there is insufficient evidence to support conviction on any of the charges, as they have been particularised. This passage from Spies was brought to the attention of both parties and further written submissions were invited. The respondent observed correctly that as the matter proceeded ex parte, the evidence was not “led in full or tested”. It was submitted that it is not in the interests of justice, and would also set a dangerous precedent, to allow an appeal on the basis that a lack of evidence had been led at the ex parte hearing, and further that it is against the philosophy of section 142A of the JA to require the prosecution to call evidence and litigate a full hearing. [57] The first submission cannot be accepted and the second submission misunderstands the purpose of section 142A of the JA. The power to proceed to conviction, and in some instances sentence, ex parte is a sensible but exceptional power. It assists with 18 (2000) 201 CLR 603 per Gaudron, McHugh, Gummow and Hayne JJ at [104]. -- 11 of 12 -- 12 case flow through the Magistrates Court, but does not obviate the need for the production of sufficient evidence to justify conviction. The election of a defendant to not appear does not mean that some lesser standard of proof is justified, nor does it mean that prosecutors can fail to produce information going to proof of an element of an offence. The failure to have the whole of the relevant evidence placed intelligibly before the court is a breach of the Barristers’ Conduct Rules19 and the Australian Solicitors Conduct Rules,20 and it is likely that the onus on the prosecutor to attend to that is higher when appearing in an ex parte hearing. [58] Adherence to the ethical obligation does not require the prosecutor to call evidence and litigate a full hearing, but it does require that the whole of the relevant evidence be placed intelligibly before the Court. For the purposes of section 142A of the JA, that can be done by statements from the Bar table and the tender of physical evidence. That was the very process used here, but there was no information as to a critical element of each charge, as those elements were informed by the served particulars. [59] Although resisting the entry of verdicts of acquittal, the respondent has not submitted that other cogent evidence exists that was not referred to at first instance. In the circumstances the appropriate order is for the entry of verdicts of acquittal and the consequential vacating of all other orders made, including costs. Appeal against sentence [60] Given my conclusions on the conviction appeal, it is unnecessary to consider this ground of appeal. Costs [61] I cannot see any reason to depart from the usual rule as to costs. The appellant has succeeded on the appeal, and consequently the respondent should pay the appellant’s costs of the appeal. 19 Barristers’ Conduct Rules 2018, rule 82. 20 Australian Solicitors Conduct Rules 2012, rule 29.1. -- 12 of 12 --