Collier v Hedges

[2012] QDC 86

[2012] QDC 86

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE R JONES

No 3339 of 2011

MARION LOUISE COLLIER	Appellant
and
G A HEDGES	Respondent

BRISBANE

..DATE 27/04/2012

JUDGMENT

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886. Section 222, subsection 1, relevantly provides, "If a person feels aggrieved as complainant, defendant or otherwise by an order made by Justices or a Justice in the summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge".

Section 223, subsection 1, which is relevant to this appeal provides, "An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the Justices".

The appeal concerns a decision by the learned Magistrate to find the appellant guilty of a breach of a domestic violence order.  On 30 August 2011 the appellant was convicted in the Magistrates Court for a breach of a domestic violence order dated 12 January 2008.  The sentence records that the appellant was found guilty but otherwise no other penalty was imposed and no conviction was recorded.

The grounds of appeal are, "I am not guilty as evidence shows. The Magistrate refused to hear - I was not arrested nor was I cautioned. Order was set aside. However, Magistrate assumed against Justices Act. What Magistrate said, 'Hedges defied Police Power and Procedures Act'".

In the appellant's outline of argument these grounds were given some more particularity in paragraphs 1 to 11 which provide, "The appellant is appealing against a conviction imposed on 30 August 2011 in the Brisbane Magistrates Court before Magistrate J Daley.  The offence is listed as being 'breach of order, respondent served with order'".  Under section 80(1)(B) of Domestic and Family Violent Protection Act 1989 the offence is alleged to have occurred on 20 February 2008 at 33 Phillip Street, Redland Bay.  The arresting Queensland Police officer on 20 February 2008, Sergeant Graham Arthur Hedges was, at the time, attached to the Redland Police Station at Redland Bay.  At time of the alleged offence of 20 February 2008 Sergeant Hedges was a serving member of the Queensland Police Service.

Magistrate Bevan Manthey at Cleveland Magistrates Court on 26 February 2008 "set aside" all orders given under Domestic and Family Violent Protection Act 1989 of 12 February 2008. This was under section 147A of the Justices Act 1886. At the time of the arrest by Sergeant Hedges and thereafter on 20 February 2008 the respondent did not give a caution to the appellant in terms of section 431 of the Police Powers and Responsibilities Act 2000.

Magistrate Daley, on 30 August 2011, refused to take this submission into material consideration when asked to do so by the appellant in respect of the charge laid.  The appellant submits that the arrest was unlawful and, therefore, invalid.

On 30 August 2011, whilst under cross-examination by the appellant, when asked of Sergeant Hedges, "Did you give me a caution when you arrested me?" or words to that effect, Sergeant Hedges replied, "That is an American idea" or words to that effect.

Magistrate Daley, on 30 August, 2011, accepted an undated affidavit of service from a respondent witness who the appellant was not permitted to cross-examine.  Magistrate Daley on 30 August 2011 wrongly accepted submission of the respondent that the 12 February 2008 was revoked/varied not set aside.  Magistrate Daley, on 30 August 2011, wrongly accepted the submission of the respondent that the appellant had admitted to remaining at Phillip Street, Redland Bay, against orders of the Cleveland Magistrate on 12 February 2008.

Magistrate Daley, on 30 August 2011, refused to accept into evidence any documentation of the appellant pertaining to sworn affidavits in other Courts being affidavits of a person being the same aggrieved person in these proceedings which reflected on material evidence to dispute the credibility of the aggrieved and to the reason why Magistrate Manthey had decided "set aside" the orders of 12 February 2008.

Magistrate Daley, on 30 August 2011, refused to dismiss anything provided by the prosecution/respondent by way of submission in respect to evidence contained in police statements; police notebooks, et cetera, such admissions being without credit due to an official notebook of Sergeant Hedges being lost by Redland Police Station, having no signed police or other witness statements as the prosecution brief had been lost by the Cleveland Prosecution Office. The appellant refers to section 436 and 437 of the Police Powers and Responsibilities Act 2000.

I interpose at this point to say that during the course of oral argument before me the appellant did not raise, in any way, or deal with a number of the contentions raised in the paragraphs to which I have referred and, in particular, the fact that the learned Magistrate below failed to accept into evidence sworn affidavits by persons said to have been related to the same proceedings.  In this respect I refer to paragraph 10 of the appellant's written outline.

The relevant domestic violence order contained a number of orders but relevant to this appeal order 6 provided, "The respondent is to vacate the premises at 33 Phillip Street, Redland Bay, with (sic), should be within, 48 hours after service of this order upon her.  The respondent is to be allowed access to the said premises only in the company of a police officer and at a time suitable to all parties to collect the respondent's personal property (namely, personal property)".

The breach of the order that the appellant was convicted of was that she remained in occupation of the subject premises.  The written outline of submissions and reply of the appellant are extensive and not always directly on point but during the course of oral submissions five matters emerged as being of particular relevance to the appellant.  I should say, at this stage, that a number of these were not reasonably open on the grounds of appeal particularised in the notice of appeal but no objection was taken to the appellant raising them before me.

The first matter was that the appellant was not properly served with the order.

As stated, order 6 required the appellant to vacate the subject premises within 48 hours of being served.  At page 2 of the reasons of the learned Magistrate her Honour relevantly said, between lines 20 to 55, "Now the protection order made on 12 February 2008 was set aside on the 26 February.  That means that the order was operative between the 12th and 26th of February 2008.  Now Mrs Collier is charged that on the 12th”, I interpose here, that should read the 20th,” of February 2008, she breached the order in that she did not vacate the premises. On her own admission, in evidence, at the hearing Mrs Collier does not dispute that she did not vacate the premises between those dates and that she actually resides there.  The admission was supported by her former husband, Mr Collier.”

“Sergeant Hedges' evidence in relation to it is that he located you there and that you were in residence but he does not assist me at all as to what 'in residence' means and I accept your evidence and that of your husband's to find that you were residing there at the time and you had not - and I find this is a - I accept your admission and find as a matter of fact that you did not vacate the premises at 33 Phillips Street, Redland Bay, between the 12th and 26th of February which would include the 20th of February."

There is no merit in this point.  It was entirely open for the learned Magistrate to reach the conclusion that her Honour did on the evidence.  In this context the learned Magistrate read from page 3 of the subject order the following, "I, Marion Louise Collier, state that on 12/2/08 the within domestic violence order was explained to me and that I understand the purpose, terms and effect of the order including that the order may be enforceable in other States and Territories of Australia and New Zealand without further notice and I also understand the consequences that may follow should I not comply with the terms of the order".

Underneath that part of the order the appellant had written, "This is inconsistent with the Commonwealth and the Court knows it cannot be enforced anywhere in Australia or New Zealand".  I have no reason to doubt that the signature at page 3 of the order is that of the appellant.  She conceded as much before me and I note from the transcript that her husband also identified her signature.

During the Magistrates Court proceedings, the appellant gave evidence on oath at page 76, between lines 20 and 40, that she was not served with the order until 22 February 2008.  If that were true it would, of course, mean that the domestic violence order had not been breached.  The learned Magistrate had the opportunity to observe and hear the appellant give her evidence.

I was not taken to any material and, indeed, I could not find any material which places in question the learned Magistrate's decision not to accept the appellant's evidence about this.  I should note in this regard that before me the appellant's versions of when she was served with the order were initially that it was on 15 February 2008 but then it could have been 17 February 2008.

That she was not served until 22 February 2008 was not advanced or contended for by the appellant before me until she was referred by me to page 6, line 22, of the judgment of the learned Magistrate where that part of her evidence was referred to. As I have said, there is no merit in the service point.

The second point raised by the appellant was that the police officer, Sergeant Hedges, lied in his evidence.  In this regard the appellant took me, first, to his evidence at page 27 between lines 1 to 22.  In that part of the officer's evidence, he gave evidence concerning a police notebook which he reported to be lost.  Again, I was not taken to any material which supports the appellant's contention that Sergeant Hedges was lying when he gave that evidence.

The appellant, on this topic, next submitted that the Police Prosecutor below told the Magistrate that her Honour should not accept the evidence of Sergeant Hedges.  However, it becomes tolerably clear, by reference to the submissions made by the Prosecutor below at page 106, line 40 of the transcript, that the submission made by the Prosecutor was an alternative or fall back position not a concession that the sergeant was a dishonest or otherwise unreliable witness.

I am not at all satisfied that Sergeant Hedges' evidence, in so far it was relevant to the proceeding below, has been shown to be dishonest and unreliable.  Also in the context of this appeal it is clear that the learned Magistrate reached the decisions that she did based primarily on the appellant's own admissions and the evidence of her husband.  I refer here to the judgment of her Honour at page 2 of the transcript between lines 32 and 50.  There is no merit to this point.

The next matter raised was that the appellant was not cautioned pursuant to section 431 of the Police Powers and Responsibilities Act 2000. Reference was made to other sections of that Act, however, they do not have to be dealt with for the purposes of disposing of this appeal.

Pursuant to section 414 of that Act it is stated that part 3 of the Act, of which section 431 is a part, only applies to indictable offences. We're not here concerned with an indictable offence. This is a summary offence. In any event, I can find no reason for concluding that the learned Magistrate’s decision would have been any different in the event that the Act was relevant and it had been breached.

As I've pointed out, the learned Magistrate made it clear in her reasons that she reached the conclusions that she did based primarily on the appellant's own evidence and that of her husband.

At page 6 of her Honour's reasons, between lines 9 and 12, her Honour said, "It's not necessary for me to consider the circumstances of her arrest.  I have not relied on any evidence by Sergeant Hedges to make any determination".  For the reasons given, I do not consider there is any merit in this point.

The next point raised by the appellant was that on 26 February 2008, subsequent orders were made by the same Magistrate who made the subject orders which set aside the orders in issue in this appeal.  Those orders are contained in the file which was before me.  They relevantly state, "I have perused the Court file and the Magistrate made the following order in relation to this application in which you are named as respondent, I order as follows:

(1)in respect of the protection order made on 12/2/08 (C/F number 577/08) I set aside that order;

(2)both applications be forwarded to the Magistrates Brisbane (Court 25) at 9 a.m. on 7 April 2008 for (hearing/mention) for the purpose of allocating a hearing date;

(3)in respect of both applications I make a temporary order with the two standard conditions, no 'named persons' to be listed."

The letter containing the orders then goes on to say, "To remove any confusion, I can confirm that the order made against you on 12 February 2008, which contain six conditions, was set aside and the new order containing the two standard conditions was made in its place".  That letter containing the orders made by the Magistrate is signed by one R L Warfield, Registrar, and addressed to the appellant.

As I understand the appellant's submission on this point, the subsequent orders, in effect, made the subject orders a nullity or void ab initio.  It seems tolerably clear that the subsequent orders were made because the facts and circumstances relied on to justify the subject orders were not, in fact, as they seemed and, in particular, in respect of the safety concerns about the children involved.  It would appear that the children were not, in fact, residing at the subject premises at the material times.

The fact that subsequent orders were made as new and/or more relevant information came forward to reveal that the underlying reasons for the subject orders were wrong does not of itself render the subject orders of no force and effect.  This was a matter addressed by her Honour below and I, with respect, agree with her conclusions on this point.  Those orders were to be complied with until varied or set aside as they were on the 26 of February.

That the orders were originally based on faulty information does not make those orders void ab initio or a nullity.  That they were based on faulty information is, of course, relevant in any sentencing and it is tolerably clear to me that her Honour did take this into account when sentencing the appellant.  I refer here to her Honour's reasons at page 7 between lines 1 to 30.

The next substantive matter raised by the appellant was that she was told by a person in authority that she should remain in occupation of the premises.  During the course of oral submissions it became confusing as to who actually provided the appellant with that information.  At one stage, I took the appellant to say that it was Mr Warfield, the Registrar of the Magistrates Court, to whom I've just referred.

However, during the proceedings below, I refer here to the transcript of the proceedings at page 66, between lines 50 and 60, the appellant gave evidence that it was a Federal Court Magistrate who told her to remain in occupation.  At its highest, for the appellant the material reveals that she gave evidence that it was a Federal Magistrate who told her to remain in occupation.

Accepting, for the moment that it could have provided the appellant with a defence to the charge, it was open for the learned Magistrate who had the opportunity to both observe and hear the appellant give her evidence to give this evidence no weight, particularly in circumstances where there was no independent corroborative evidence which supported the appellant's testimony on this matter.

It is unfortunate that her Honour did not expressly deal with this matter in her reasons but it appears tolerably clear to me that this matter was raised in the proceeding below and, as I have said, it was open for her Honour to give the appellant's evidence on this point no weight.

I should finally point out in respect of this last point that at paragraph 39 of the appellant's written submissions it is asserted that the appellant was given this information by a Federal Magistrate on 14 February 2008.  The breach occurred on 20 February 2008.  While the information provided by the Federal Magistrate, accepting for the moment that it was in fact given, might have been relevant to having the orders of 12 February 2008 set aside which they were on 26 February 2008,  it raised, in my view, no arguable defence to the charge.

For all of the reasons given I concluded that the appeal should be dismissed and the order of the Court is that the appeal is dismissed.  Now, as I have said, no doubt I will have to tidy the reasons before they are published, but the substance won't change.

I should note that there is no application for costs.

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