Carrick v Queensland Police Service [2018] QDC 72

DISTRICT COURT OF QUEENSLAND CITATION: Carrick v Queensland Police Service [2018] QDC 72 PARTIES: HENRY ROBERT CARRICK (appellant) v THE QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: APPEAL NO: 180/17 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED EX TEMPORE ON: 27 March 2018 DELIVERED AT: Cairns HEARING DATE: 27 March 2018 JUDGE: Morzone QC DCJ ORDERS: 1. Appeal allowed; 2. The conviction and orders made on 15 September 2017 in the Magistrates Court be set aside; 3. The matter be remitted to the Magistrates Court for rehearing by a different Magistrate; and 4. Each party will bear their own costs of the appeal. CATCHWORDS: CRIMINAL LAW – APPEAL - pursuant to s 222 Justices Act 1886 – charge of producing dangerous drugs, schedule 2 drugs – appeal against conviction – mode of hearing of -- 1 of 8 -- 2 appeal – whether the self-represented defendant (assisted by mother) was afforded a fair trial – whether prejudice caused by non-disclosure of co-defendant’s sentence under s 13A of the Penalties and Sentences Act 1992 (Qld) – whether failure to properly call upon the appellant as to his election to give and call evidence at the close of the Crown case – whether error to amend charge without providing any opportunity to either party to make submissions about that amendment – whether erroneous to make amendment during the course of the delivery of the decision immediately before pronouncing judgment by convicting the appellant. Legislation Justices Act 1886 (QLD) ss 48, 146, 148, 222, 223. Penalties and Sentences Act 1992 (Qld) s 13A. Criminal Code 1899 (Qld) s 618. Drugs Misuse Regulation 1987, sch 2, 3. Cases Jones v Dunkel (1959) 101 CLR 298. Paulger v Hall [2003] 2 QDR 294. Allesch v Maunz (2000) 203 CLR 172. Teelow v Commissioner of Police [2009] QCA 84. Fox v Percy (2003) 214 CLR 118. Warren v Coombes (1979) 142 CLR 531. Forrest v Commissioner of Police [2017] QCA 132. Dwyer v Calco Timbers (2008) 234 CLR 124. Neil v Nott (1994) 121 ALR 148. COUNSEL: P Feeney for the appellant. SOLICITORS: Richardson Eckersley Lawyers for the appellant. A Dunkerton of the Office of the Director of Public Prosecutions for the respondent. [1] The appellant was convicted on the 15th of September 2017 after a summary trial, having pleaded not guilty to an offence in the Magistrates Court in Cairns of producing dangerous drugs, schedule 2 drug. The Appellant now appeals his conviction. -- 2 of 8 -- 3 [2] The appellant has provided an outline of argument in respect of the appeal, and after properly considering the merits of the appeal, the prosecution have conceded the appeal with orders in terms agreed by the parties. Background [3] By bench charge sheet presented on the 7th of February 2014, the defendant was charged with the offence of producing dangerous drugs, schedule 2 drug, whereby it was alleged: “…that on the 24th day of November 2013 at Bungalow in the State of Queensland, one Henry Robert Carrick unlawfully produced a dangerous drug, namely, cannabis.” [4] The Court record shows a long history of the Court’s management of the proceeding, including adjournments apparently at the behest of the appellant based upon affidavit material explaining his condition of health, which remained at the time of trial as being C4-6 quadriplegia, syringomyelia and associated complications, including painful spasms periodically and otherwise spontaneously requiring medication. During the course of the trial, he was represented by his mother, who was given leave to do so and was also in attendance with his carer who, among other things, administered medication. [5] The hearing took place over six days, namely, the 23 February 2017, the 5 April 2017, the 26 April 2017, 21 June 2017, 31 July 2017, 7 September 2017, and with a seventh day on the 15 September 2017 occupying the matters proceeding, and the delivery of, the Court’s decision and sentence. [6] It is not clear, but at some time prior to the proceeding, the circumstance of aggravation, which was the subject of the bench charge sheet, was removed, namely, that the dangerous drug was a thing specified in schedule 2, Drugs Misuse Regulation 1987 and the quantity of the thing exceeded the quantity specified in schedule 3 of the Drugs Misuse Act Regulation 1987. If it remained in that original form, it would have taken a different course, namely, committal processes and ultimately, if appropriate, committed to the District Court to proceed by way of indictment. But as it was at the time of trial, the Court had jurisdiction to proceed by way of a summary hearing. [7] It is plain enough that the hearing was attended by significant disruption, primarily as a consequence of the appellant’s state of health. In addition to the appellant being unrepresented by a lawyer it is also clear from the transcript of the proceedings that he was informed about matters of procedure from time to time. [8] After the prosecution case was completed, it was apparent that a witness who was identified by the prosecution as intended to be called in the case was not so called to give evidence. [9] The Prosecution’s case as found by his Honour,1 was that the Defendant and that witness, namely, Luke Nicol, were the main organisers of a crop of hydro cannabis found by the police on the 24 December 2013. The Prosecution’s case relied primarily upon the evidence of the witness Langford, who had earlier pleaded to related offending and turned Prosecution witness. The Prosecutor provided no satisfactory explanation as to the absence of the material witness 1 Decision 15/09/2017, T1-2/15. -- 3 of 8 -- 4 Nicol, and there was no alert given to the defendant about the consequences or the impact of those circumstances pursuant to the rule in Jones v Dunkel.2 [10] Further, it is apparent from the record of the proceeding that the defendant was not called upon in the usual way at the end of the prosecution’s case. Rather, the Magistrate had earlier explained to the defendant that he could either give or call evidence after the prosecution case had been presented.3 This occurred at the commencement of the case about seven months earlier and even in its form seemed to indicate alternative courses available to the appellant. [11] On the day the Court delivered the decision, being the 15th of September 2017, the learned Magistrate alerted the parties to his intention of making an amendment to the charge “at the end of the decision” so that it “is one that accords with the evidence”.4 At that time, prior to the delivery of the ex tempore decision, his Honour said: 5 “So I’m not going to take any more submissions. The Prosecution won’t be prejudiced by anything … with respect to amendments. … The amendments will be contained in the decision itself.” [12] The decision was then delivered orally, commencing with the reading of the charge into the transcript, and having made various findings on the evidence,6 his Honour proceeded to amend the charge pursuant to the power under s 48 of the Justices Act 1886 (Qld) in accordance with the decision of Paulger v Hall,7 where the Court of Appeal considered that section. In applying those principles, His Honour said at page 6 of the decision: “By amending the dates to between-dates, which is what I intend to do, the Defendant would not be asked to meet a new case. This case has always been about what Langford alleged during at least the period from the time they were all at Bunnings to just before Langford leaving the house a couple of days before the 24th of December. So the charge is amended to read that between the 16th of November 2013 and the 24th of December 2013 the Defendant Henry Robert Carrick unlawfully produced dangerous drug, namely cannabis.” [13] Having made that amendment without further reference to any party his honour then immediately went on to convict the Defendant as follows: 2 Jones v Dunkel (1959) 101 CLR 298. 3 Transcript 22/03/2018 T1-6/35-43. “If there is a case to answer, he’ll then be asked, through you, Ms Unwin, whether he wishes to give evidence, himself. He’ll be asked whether he wishes to call evidence. He doesn’t have to do either. He can do one or the other. It’s entirely up to Mr Carrick whether he gives evidence, himself, or whether he calls witnesses. Whether or not he gives evidence or whether or not he calls witnesses, is not something that can be adversely held against him.” Contrast the Supreme Court Practice where the associate asks: “The prosecution having closed its case against you, I must ask if you intend to adduce evidence in your defence. This means you may give evidence yourself, call witnesses, or produce evidence. You may do all or any of these things, or none of them.” 4 Transcript of proceeding 15/09/2017, T1-3/10. 5 Transcript of proceeding 15/09/2017, T1-3/10 – T1-3/25. 6 Transcript of proceeding 15/09/2017, T1-2/5. 7 Paulger v Hall [2003] 2 QDR 294; D1-6/35. -- 4 of 8 -- 5 “So having made all those findings on a consideration of all the evidence, I am satisfied beyond a reasonable doubt that the Prosecution have proved each and every element of the charge that I have just amended against Henry Robert Carrick and I find him guilty.” [14] After hearing further submissions as to sentence, the defendant was sentenced to four months imprisonment wholly suspended for a period of 18 months. Mode of Appeal [15] The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). Section 222(1) relevantly provides: “If a person feels aggrieved as a 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.” [16] Pursuant to section 223 of the same act,8 the appeal is by way of rehearing on the original evidence and any new evidence adduced by leave. In this way, the powers of the appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.9 [17] The rehearing requires this Court to conduct a real review of the evidence before it rather than a complete fresh hearing and make up its own mind about the case.10 Grounds of Appeal [18] Here, the grounds of appeal are set out in the Notice of Appeal as follows: 1. The Defendant, self-represented, assisted by mother not solicitor, was not given fair trial. 2. The verdict is unreasonable, unsafe and unsatisfactory and cannot be supported having regard to all the evidence. 3. There is an error of law or mixed law and fact. 4. Prejudice (Defendant) by not being allowed to produce documents in evidence. 5. Charge date amended by Magistrate after decision reasons without prior notice to Defendant-denying any chance to object charge 24th November 2013 8 Justices Act 1886 (QLD) s223. 9 See Allesch v Maunz (2000) 203 CLR 172 at paragraphs 22 and 23, followed in Teelow v Commissioner of Police [2009] QCA 84. 10 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5. -- 5 of 8 -- 6 change to 16 November-24th December 2013. Drugs found 24th December 2013 not in possession of Defendant. [19] Each of those grounds are more or less covered by the first ground that the Defendant was not provided a fair trial, that is, they seem to be subsets of that primary ground which is the subject of the submissions by the appellant in this appeal. Fair Hearing [20] Section 146 of the Justices Act 1886 (Qld) provides for the process of a summary trial when a defendant pleads not guilty as follows: “146 Where defendant pleads not guilty (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.” [21] Section 148 of the Act further required that the conduct of the summary hearing must be, as far as possible, in accordance with the practice in the Supreme Court. Section 148 provides: “148 Conduct of summary proceedings regulated The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross- examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.” [22] It is often difficult for Magistrates to ensure the integrity of proceedings which involve a litigant appearing in person or represented by an unqualified friend. This is all the more challenging when ignorance of procedural matters is overlaid with medical or other concerns impacting that party. In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person or with a friend, but it should not be seen as a privilege. Nevertheless, it’s in those circumstances where judicial officers are at a heightened level so as to conduct the proceedings in a fair way. [23] The High Court in Neil v Nott at paragraph 150 per Brennan, Deane, Toohey, Gaudron and McHugh JJ said:11 11 Neil v Nott (1994) 121 ALR 148 at [150]. -- 6 of 8 -- 7 “A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy.” [24] The circumstances facing the learned trial Magistrate were unusual if not unique. His honour at the commencement of the proceedings gave instruction directed to the appellant’s mother who acted as an advocate in the proceeding with the Court’s leave. At the various stages of the proceeding, His Honour alert to significant disadvantage encouraged the appellant take the opportunity to seek legal assistance through the Legal Aid Office of Queensland or otherwise. [25] That disadvantage is highlighted by the complications in the proceedings about which I have already remarked, namely: 1. Matters of disclosure relating to evidence of the witness Langford under s 13A of the Penalties and Sentences Act 1992 (Qld); 2. The failure to formally call upon the appellant as to his election to give and call evidence at the close of the Crown case as would be expected in Supreme Court proceedings pursuant to s 618 of the Criminal Code 1899 (Qld) and in any event pursuant to the Justices Act 1886 (Qld); 3. Amending the charge in the proceedings, having regard to the evidence, without providing any opportunity to either party to make submissions about that amendment; and 4. Making the amendment during the course of the delivery of the decision immediately before pronouncing judgment by convicting the Appellant. [26] It seems to me that each of those matters strike at the heart of the judicial obligation owed to the appellant to conduct a fair trial, that is, properly affording the appellant with procedural fairness and natural justice as would be expected in Supreme Court proceedings. [27] For these reasons it seems to me that the learned trial Magistrate erred in the proper conduct of the proceeding and the result, in my respectful opinion, is unreasonable and plainly unjust. Conclusion [28] Therefore, I allow the appeal and make the following orders: 1. Appeal allowed. 2. The conviction and orders made on 15 September 2017 in the Magistrates Court be set aside. 3. The matter be remitted to the Magistrates Court for rehearing by a different Magistrate. 4. Each party will bear their own costs of the appeal. -- 7 of 8 -- 8 Judge Morzone QC -- 8 of 8 --