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.

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

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]
[1]These charges reflect an amended complaint and summons filed by leave on 18 November 2019.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QDC 297
Decision Date: 19 November 2020.

CaseChat Overview and Summary

The case of Billeau v Brisbane City Council involves the appellant, Billeau, who was convicted ex parte by the Magistrates Court of three offences against the Biosecurity Act 2014 (Qld). The appeal against her conviction and sentence was brought pursuant to section 222 of the Justices Act 1886 (Qld). The central issue in the appeal was whether the conviction was unreasonable or could not be supported by the evidence, whether the appellant was denied procedural fairness, and whether the sentence imposed was manifestly excessive or if the Magistrate erred in not considering imprisonment as a last resort.

The court examined the admissibility of fresh evidence presented by the appellant in support of her appeal. The court held that the medical certificate concerning the appellant's mother’s medical condition on the day of the hearing could be considered fresh evidence, but only if its admission at the time of the hearing "might reasonably" have resulted in a different outcome. The court found that the other matters in the affidavit were not admissible as they did not rationally affect the issues raised in the conviction appeal. The court also found that the Magistrate did not err in refusing the adjournment application as the prosecution case was strong and the listing history of the matter made it desirable for the matter not to be adjourned.

The court allowed the appeal and entered verdicts of acquittal on all charges. All orders made in the Brisbane Magistrates Court on 31 July 2019 concerning the appellant were vacated. The respondent was ordered to pay the appellant's costs of the appeal. The appellant's application for leave to adduce further evidence was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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 King[5] are apposite.[5](1936) 55 CLR 499, 505-506.Factual background 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. 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 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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[11]Citing Guy v McLoughlin & Anor [2006] QDC 17.Admissibility of the Affidavit 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][12]S 223(1) of the JA.[13]S 223(2) of the JA. 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”. 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.[14]Pavlovic v Commissioner of Police [2006] QCA 134. 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. 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. 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. 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. 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][15]Gallagher v The Queen (1986) 160 CLR 392, 395 – 396. 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.

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.
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.