Etienne v Commissioner of Police [2018] QDC 6

DISTRICT COURT OF QUEENSLAND CITATION: Etienne v Commissioner of Police [2018] QDC 6 PARTIES: SIEGFRIED ETIENNE (Applicant) v THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: D202/17 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 6th February 2018 DELIVERED AT: Southport HEARING DATE: 15 December 2017 JUDGE: Kent QC DCJ ORDER: 1. Time for commencement of the appeal extended. 2. Appeal allowed. 3. Finding of guilt before the Magistrate set aside and verdict of not guilty entered. 4. Fine imposed below set aside. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER TO BRING APPEAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the appellant was convicted for failing to appear in accordance with an undertaking pursuant to s 33(1) of the Bail Act 1980 (Qld) – where notice of appeal was filed out of time – where there is no significant prejudice to the respondent in granting an extension of time – whether time for commencement of the appeal should be extended CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the appellant was convicted for failing to appear in accordance with an undertaking pursuant to s 33(1) of the Bail Act 1980 (Qld) – where the appellant had not been served with a notice to appear – whether further evidence should be admitted in the form of a joint concession that the police prosecutor was advised of the new address - where police prosecutions failed to update the -- 1 of 6 -- 2 appellant’s address – where the appellant was self-represented – where the Magistrate concluded that the onus was on the appellant to make enquiries as to his hearing date – whether the Magistrate erred in convicting the appellant. Bail Act 1980 (Qld), s 28A, s 33(1) Justices Act 1886 (Qld), s 222 COUNSEL: Applicant self - represented M. Connolly for Respondent SOLICITORS: Applicant self - represented Office of the Director of Prosecutions, Southport for Respondent [2] In this matter the appellant seeks leave to appeal against his conviction for failing to appear in accordance with an undertaking pursuant to s 33(1) of the Bail Act 1980 (Qld). The notice of appeal was filed out of time and thus it is necessary to consider whether an extension of time for filing should be granted. [3] The respondent has helpfully identified the relevant considerations in relation to the grant of an extension. Section 224(1)(a) of the Justices Act 1886 (Qld) provides that, on an appeal pursuant to s 222, a District Court judge may, on the application of a party or the judge’s own initiative extend the time for filing a notice of appeal.1 [4] In this case the delay is relatively short (38 days) and it seems to be explained by the appellant’s failure to obtain legal advice. He has been, and remains, self-represented. It is not suggested that there is any significant prejudice to the respondent and consistent with the interests of justice, an extension is granted.2 The procedure on appeal [5] The appeal is by way of re-hearing on the evidence given in the proceeding before the Justices.3 The question on such an appeal may be framed in variations of language, however one helpful formulation is to consider whether, 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.4 The appeal requires this court 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.5 1 Section 222(1) provides that the appeal should be filed within one month of the date of the challenged order. 2 See R v Tait (1998) 2 Qd R 667 at 668. 3 Section 223(1). 4 See Teelow v Commissioner of Police (2009) 2 Qd R 489 at 493. 5 See Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper (2009) 1 Qd R 247 at [3]; White v Commissioner of Police [2014] QCA 121 at [6]; McDonald v Queensland Police Service [2017] QCA 255 at [47]. -- 2 of 6 -- 3 [6] An appeal of this kind is by way of re-hearing on the original evidence in the proceeding, however leave may be given to adduce fresh, additional or substituted evidence if there are special grounds for doing so.6 I will return to this issue. The proceedings below [7] The appellant had been charged with an offence of common assault. He was, apparently, at that time, living in premises at Surfers Paradise. The proceedings were on foot in the Magistrates Court at Southport during the first half 2017. On 9 May 2017 the matter was mentioned. The transcript reveals7 that the appellant did not appear that day. The police prosecutor said that the court had sent a notice to the defendant after a previous adjournment. That notice was returned unserved on the court file. The prosecutor continued: “The reason the defendant wasn’t here the last occasion – it was adjourned as he was feeling unwell, so he had to leave in the interim period. Therefore, he obviously isn’t aware that this matter’s listed today. As such, your Honour, I have no choice but to seek a warrant.” It is debatable whether the prosecutor had no choice as was said; an alternative would have been to ask for an adjournment so service could be properly effected, where the clear submission was that through no fault of his own the defendant was unaware of the date. In any case, the Magistrate issued a warrant for the arrest of the appellant pursuant to s 28A of the Bail Act 1980 (Qld). That section empowers a court to issue a warrant for the apprehension of a defendant who fails to surrender himself into custody without reasonable cause. However s 28A(4) provides that: “A court shall not issue a warrant under the section… (b) where the hearing was adjourned in the defendant’s absence and the defendant was not represented by a lawyer (these conditions seem to satisfied in the present case); unless it is satisfied that – (c) the defendant cannot be found, has absconded or is likely to abscond; or (d) reasonable notice of the time and place so determined, or as the case may be, the time to which the hearing was adjourned has been given to the defendant.” [8] The proceedings on 9 May 2017 indicate that reasonable notice had not been given to the defendant. I will return to the circumstances of this. On 9 May 2017, the only material which had any relevance to the alternatives in s 28A(4)(c) was that the notice had been returned unserved. There was no submission or evidence as to what address the notice had been sent to or the currency of such an address. Nor was there any other suggestion that evidence existed to support a conclusion that the defendant could not be found, had absconded or was likely to abscond. [9] On the existing circumstances, therefore, in my view, it is somewhat doubtful whether the Magistrate could have reasonably reached the conclusion that the conditions in ss (4)(c) or (d) could be satisfied. 6 Section 223(1) and (2). 7 Attachment A to the respondent’s outline of submissions. -- 3 of 6 -- 4 [10] The proposed new evidence sheds more light on these matters. As is fairly conceded by the respondent in its outline of submissions: “It was not put on the record at the hearing that the respondent has since confirmed that police prosecutions were informed of the appellant’s new address on 7 March 2017.” The appellant confirmed this from the bar table at the hearing of the appeal. Sworn evidence of the fact was not given, however it is not contentious between the parties and in the circumstances, after raising the question with the respondent’s representative, I propose to treat the agreement on this point as a mutual admission of fact upon which I can act in this proceeding. Moreover, for reasons set out further below, I propose to admit the above factual proposition as new evidence in view of considerations whether the evidence could, with reasonable diligence, have been produced below (it could not have been, at least by the appellant); there is no doubt that it is credible, in fact, it is mutually admitted; and it might reasonably have led the tribunal of fact to a different conclusion.8 [11] Thus in my view, the conclusion, to this point, that the warrant should have issued on 9 May 2017 was a doubtful one. However, the proceedings on 26 May 2017 bear examination. The Magistrate on that occasion read the charge to the appellant that on 9 May at Surfers Paradise he, without reasonable cause failed to surrender into custody at the Southport Magistrates Court (I pause to note that it is not possible to surrender to the Southport Magistrates Court in Surfers Paradise) in accordance with his previous undertaking. The defendant immediately said that he was never informed of the date (as is now, and seems to have always been, common ground). The Magistrate invited him to show cause. He explained that the female police prosecutor allowed him to leave court on a previous occasion when he was suffering back pain saying “yes I’ll inform you of the court date”. He said that he was never informed of the court date. He said that she was going to send it to him by email and mail. None of this was disputed. [12] The Magistrate put to him that the court sent something to his address. It is true that the defendant had changed his physical address (there is no suggestion he changed his email address). He had informed the police prosecutor of this, but not, separately, the court or court staff. I pause to note that it would seem to be a counsel of perfection to ask a self-represented defendant to make a distinction between court staff and a helpful police prosecutor, and separately inform both. [13] During the discussion that followed, the unrepresented appellant did not give evidence from the witness box. He was not invited to do so by the Magistrate. He said: “they told me, your Honour, that they would contact me, because I specifically asked, what am I supposed to do? She said, ‘I will contact you and give you the court date.’” This was not challenged. In response to the proposition that the notice was sent to his address and came back unclaimed, he said “No. I changed my address and I gave her my new address”. 8 See Gallagher v The Queen (1986) 160 CLR 392; Pavlovic v Commissioner of Police (2007) 1 Qd R 344 at [31] to [37]. -- 4 of 6 -- 5 This is now conceded to be factually correct, and it is not suggested that this correctness could not have been reasonably discovered by the police prosecutor appearing at the time. The Magistrate put to him that he had not given the court his new address. He said that was the defendant’s fault and his obligation was, if he had not heard anything, to contact the court to ask the court for his hearing date. He said “she told me she’d contact me”. The Magistrate said that didn’t matter and the defendant should have telephoned the court after a week. He said “I wasn’t told to ring up and ask – I wasn’t told to do that”. The Magistrate indicated it was his view that such was the appellant’s obligation – that was his “view of the world”. The appellant repeatedly said that he was following the instructions he was given. [14] I interpolate that it is common ground that at the mention on 9 May 2017 it was acknowledged that the appellant had no means of knowledge of that date other than the wrongly addressed notice. Nevertheless the Magistrate, on 26 May 2017, repetitively referred to an appearance on 20 March. This does not, with the greatest of respect, seem to me to have any particular relevance to the issue of his failure to appear on 9 May. The Magistrate expressed himself in strong terms. He made an enquiry of the prosecutor as to whether the appellant had any history of failure to appear and was told that he did not. In fact, the appellant was, at that time, a 70 year old man with no criminal history whatsoever; bearing, of course, the presumption of innocence; and he was later acquitted of the charge of common assault to which the bail undertaking referred. [15] It is difficult to discern the substance of the Magistrate’s reasons for concluding that the appellant had not shown reasonable cause for his failure to surrender into custody.9 His Honour seemed to conclude that after his appearance in March, he should have made weekly enquiries with the court as to a further date, despite being told by the police prosecutor that she would inform him. The statutory or other basis for that conceived obligation is not clear. Discussion [16] It is clear that s 33(2) imposes an onus on a defendant who had failed to surrender into custody to satisfy the court that he had reasonable cause. The appellant sought to do this by repetitively explaining the circumstances outlined above. The Magistrate rejected these explanations, apparently because, despite what the defendant was told by the police prosecutor, he should have, in any event, made his own enquiries separately with the court registry or staff; such was his “view of the world”. [17] In my view s 33(2), which seems to have been the subject of little judicial examination, at least in relation to appeals against conviction, does not represent the exercise of a discretion, and thus the House10-type principles are not of central relevance. Rather the issue is whether the Magistrate’s conclusion is the result of a legal error. In my view, s 33(2) calls for an examination of the reasonableness of the defendant’s cause for non-attendance. “Reasonable” is often regarded as synonymous with concepts such as: appropriate, fair or moderate; logical; based on 9 I have reproduced some of the relevant discussion above. 10 House v R (1936) 55 CLR 499 -- 5 of 6 -- 6 sound judgment; based on reason and not exceeding the limit prescribed by reason.11 In my view, the appellant has demonstrated that he had reasonable cause for his non- attendance and this conclusion is based in part on the new evidence which was not before the Magistrate. The conceded indication to the appellant by the police prosecutor further erodes the Magistrate’s rejection of the appellant’s reasonable cause which was tendered at the time and results in the conclusion by the Magistrate having been affected by legal error or, possibly, an error on an issue which represented a mixed question of law and fact. Further, the transcript seems to indicate that despite the explanation repetitively being referred to by the appellant, the Magistrate made no enquiries as to its veracity; for example, he did not call on the then police prosecutor to make any enquiries about it. The Magistrate’s view that weekly enquiries were necessary, of a separate part of the court system from his point of contact, in the context of what the self-represented appellant had been told by the apparently authoritative police prosecutor, is not reasonably justifiable. [18] It follows that the appellant is successful on the appeal and the finding of guilt below, with the attendant fine is set aside. The orders will be: 1. Time for commencement of the appeal extended. 2. Appeal allowed. 3. Finding of guilt before the Magistrate set aside and verdict of not guilty entered. 4. Fine imposed below set aside. 11 Dictionary.com -- 6 of 6 --