ASON ALLAN WHEELERv.COMMISSIONER OF POLICE
[2023] QDC 58
•17 FEBRUARY 2023
QUEENSLAND COURTS AND TRIBUNALS TRANSCRIPT OF PROCEEDINGS
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DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION
JUDGE LYNCH KC
Appeal No 55 of 2021 JASON ALLAN WHEELER
v.
COMMISSIONER OF POLICE Appellant
IPSWICH
12.39 PM, FRIDAY, 17 FEBRUARY 2023
DAY 1 JUDGMENT
Any rulings in this transcript may be extracted and revised by the presiding Judge.
WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.
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HIS HONOUR: The appellant applies for an extension of time within which to appeal against his conviction. He was convicted before the Magistrates Court of an offence pursuant to section 408E of the Code. That section provides a person who
5uses a restricted computer without the consent of the computer’s controller commits an offence. There were a number of admissions made in the proceedings before the Magistrate. The appellant is a police officer and was at the relevant period. He was the supervisor of a first-year constable, and the allegation behind the charge was that he accessed the police computer system in a way that was not authorised or was not
related to his official duties and therefore not within the consent of the Commissioner of Police. The trial was a relatively short one. The applicant/appellant gave evidence, and raised whether the conduct was properly to be regarded as an act done within his proper responsibilities in supervising the first-year constable. And so there was an issue as to whether the Commissioner in fact consented to the act. It was
raised in the proceedings below that, nevertheless, the applicant/appellant honestly and reasonably but mistakenly believed he was acting within his proper role in doing what he did, that is, on the assumption that what he did was not within the realm of the Commissioner’s consent, and it was otherwise argued that the offence had not been made out. The learned Magistrate rejected the applicant/appellant’s evidence in
respect of a material aspect and found the charge proved, that is, finding that there had not been consent to the precise action of the appellant and that he did not honestly and reasonably but mistakenly believe he was entitled to do as he did.
It is conceded on the hearing of this appeal that there was a fundamental error which
results in a miscarriage of justice in the conduct of the proceedings below. A document was placed before the appellant when he was cross-examined by the Prosecutor, and that document was then subsequently put into evidence, and that document was the basis of the findings of fact made by the learned Magistrate or at least significant in the Magistrate coming to his decisions, particularly in rejecting
the appellant’s evidence. It is conceded on the hearing of this appeal that effectively what occurred was that the Prosecution were permitted to improperly split its case. The document, it seems to me, was admissible. It should have been part of the Prosecution case so that the appellant had notice of it, could have considered it, rather than be surprised by it being placed in front of him in cross-examination in the
way that occurred, and might have had an opportunity to cross-examine other witnesses or even decide whether or not to give evidence himself in the proceedings with full knowledge of the evidence that was to be led by the Prosecution. In light of all of that, and quite properly, the respondent here concedes that the appeal should be allowed. The grounds, apart from that ground of appeal against the conviction
included criticism of the findings of the Magistrate, and in particular based upon the use of the document that was admitted in the way I have described. It is submitted that the admissible evidence was not sufficient to justify a conviction or that the admissible evidence in the case would not have justified a conviction and that to order a retrial at this point would be to permit the Prosecution to effectively
supplement a defective case or, alternatively, that
taking account of all of the circumstances, the nature of the charge and the way that things have progressed, it would now be unjust to order a retrial. The respondent submits that the appropriate course is to set aside the conviction and remit the matter for re-hearing before a Magistrate. I am satisfied, in the end, that that is the
appropriate course.
The document that was relied upon was admissible, it seems to me, in the Prosecution case. It will be admissible, I would have thought, in any retrial. The document did not, in a sense, introduce any new or unexplained evidence except to
the extent that it gave the details of precisely what could have been seen on the screen before the appellant did the act of clicking on to the custody screen, the act, of course, which was the basis of the offence. The Magistrate relied upon it because it made plain to him what the applicant might have seen if he paid attention to what was contained on the screen at the time that he clicked on the custody index. So the
material relied upon, although it resulted in a mistrial because of the way it was introduced, coming, as it did, only in the cross-examination of the appellant, results in the requirement that the conviction be set aside, but it seems to me this is not an example of a case referred to by the High Court in the Director of Prosecutions for Nauru v Fowler, where to order a retrial would simply be to permit the Prosecution
to supplement a deficient case. In my view, there was sufficient evidence available, even absent that document, upon which the applicant/appellant might have been convicted. Whether, of course, that happened if that had been regularly occasioned, that is, the admission of that document, of course, is another matter. Whether the applicant/appellant would have given evidence is, of course, a matter that I cannot
answer, but it seems to me there is properly a case based on the admissible evidence to answer, and therefore one ordinarily fit for retrial. The second question, of course, is whether in all of the circumstances, including the sufficiency of the evidence and any other matters, it is unjust to order that the matter be retried. The offence is not said to be the most serious example of it. There are, obviously, many more serious
examples of that offence that have come before the Court, but, nevertheless, it is a matter of importance and the seriousness of the charges has not changed. It was regarded seriously enough to bring the proceedings in the first place.
Taking account of all of the circumstances, I am satisfied that it is appropriate to
order a retrial of the matter. The case depends upon a proper assessment of credit. It seems to me it is not possible for me to undertake that in light of the way that all of the evidence was taken or to simply assess some of the evidence and make findings of credit based on some of it. Clearly, the Magistrate’s determination was infected by the document that was admitted during the course of cross-examination of the
applicant/appellant, and in those circumstances it does not seem to me appropriate that I undertake my own assessment of the evidence to finally determine the case. It may be that on a re-hearing, for example, there is further evidence led on behalf of the applicant/appellant. It may be that he does not even give evidence. In any event, those are matters to be determined in due course.
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The further matter of relevance to a retrial is the construction of section 408E subsection (4). The offence provision is pursuant to subsection (1) of that section. Subsection (4) provides:
It is a defence to a charge under this section to prove that the use of the restricted computer was authorised, justified or excused by law.
Although in the proceedings at first instance all of the parties, including the Magistrate, proceeded on the basis that, although raised on the evidence, the issue of
an honest and reasonable mistake was one for the Prosecution to negative beyond reasonable doubt, that seems to me inconsistent with the insertion of subsection (4) into the provision. The offence provision itself, it seems to me, creates an absolute offence. It then, however, provides that there can be circumstances in which the conduct of the person might have been authorised, justified or excused by law, but by
insertion of that provision, it is expressly said that can be a defence to a charge to prove that the use of the restricted computer was authorised, justified or excused by law. I would have thought section 24, mistake of fact, is an authorisation, justification or excuse under the law, and that subsection (4) requires, in order to rely upon such a provision exculpating the conduct proscribed under subsection (1), that
there is a reverse onus on the defendant to prove on the balance of probabilities the authorisation, justification or excuse. I make those comments for the assistance of the trial before a Magistrate in future, assuming that the Prosecution again proceed with the matter. The conclusion I have reached is that there should be a retrial and it should take place in front of a different Magistrate than heard the trial on the first
occasion.
The appropriate order, then, is as follows:
(1) I set aside the finding of the Magistrate that the defendant is guilty of the charge.
(2)I order that the matter be remitted to the Magistrates Court at Toowoomba to be dealt with according to law. The further trial, if it is to take place, should
take place in front of a different Magistrate then as heard the original trial.
Is there anything else?
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…
HIS HONOUR: I should have said, of course, that I enlarge the time for filing the
notice of appeal.
MR BLACK: Thank you, your Honour.
HIS HONOUR: All right. Well, I have amended the draft to remove paragraph 4, and I will make the order otherwise in terms of the draft. All right?
MR BLACK: Thank you, your Honour.
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HIS HONOUR: Thank you.
MR BLACK: There is nothing further.
HIS HONOUR: We will just adjourn.
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