Hennessey v Commissioner of Police - [2024] QDC 52

DISTRICT COURT OF QUEENSLAND

CITATION:

Hennessey v Commissioner of Police [2024] QDC 52

PARTIES:

HENNESSEY, Daniel Kerrick

(appellant)

v
Commissioner of Police

(respondent)

FILE NO/S:

2708/23

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

19 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2024

JUDGES:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   The conviction is quashed.

3.   The order made in the Magistrates Court is set aside.

4.   No order as to costs.

CATCHWORDS:

CRIMINAL LAW – BAIL – BEFORE TRIAL – OTHER MATTERS –   Failure to appear – where the appellant called the registry to advise he would be appearing late – where despite this, a warrant was issued for his arrest – where he did appear and the Magistrate refused to deal with the matter and required him to surrender to the watch house – whether there was a failure to exercise jurisdiction – where the uncontested evidence is the appellant suffers an adjustment disorder which directly affects his ability to organise his life – where he had a panic attack on the day of court, but he made arrangements to attend – whether the Magistrate erred in convicting the appellant of failing to appear – whether the Magistrate’s reasons were sufficient – whether the appellant had a reasonable cause for failing to appear – whether failure to appear due to circumstances beyond his control

Bail Act 1980 (Qld) ss 28A, 33
Justices Act 1886 (Qld) ss 76, 222

Qld Parliamentary Debates Second Reading Speech [1979-1980] vol 281, page 2931

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied
DPP v Richards [1988] QB 701; 3 WLR 153 cited
Joyce v Baird [2013] ACTSC 79; (2013) 276 FLR 128, cited
McDonald v Queensland Police Service [2017] QCA 255, applied
R v Peehi (1997) 41 NSWLR 476; (1997) 92 A Crim R 539, cited
R v Singh [1979] QB 319; [1979] 2 WLR 100; [1979] 1 All ER 524, cited

Taikato v R [1996] HCA 28; (1996) 186 CLR 454, applied

COUNSEL:

Ms E Kurz for the appellant
Mr K Kinsella for the respondent

SOLICITORS:

Legal Aid Office (Qld) for the appellant
Office of the Director of Public Prosecutions for the respondent

Introduction

The appellant appeals his conviction of failing to appear in accordance with a bail undertaking. He was convicted of this offence on 22 August 2023 and was sentenced to a good behaviour bond for two months.
This appeal is pursuant to s 222 of the Justices Act 1886 (Qld). It requires this court to conduct a real review of the trial and of the Magistrate’s reasons and to make its own determination of the relevant facts giving due weight to the Magistrate’s view.[1]
[1]McDonald v Queensland Police Service [2017] QCA 255.
Background
The appellant was due to appear in the Holland Park…

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.

Continue reading Hennessey v Commissioner of Police

Details

AGLC: Hennessey v Commissioner of Police [2024] QDC 52
Case: [2024] QDC 52
Decision Date: 19 April 2024

CaseChat Overview and Summary

The matter of Hennessey v Commissioner of Police involves the appellant, who was convicted of failing to appear before the Holland Park Magistrates Court on 21 July 2023, as mandated by the Bail Act 1980 (Qld). Despite contacting the court registry to inform them of his delayed arrival due to illness, a warrant was issued for his arrest when he did not appear on time. Upon arriving at the court, the appellant was instructed to surrender himself to the police station, which he did the following Monday. The conviction was upheld by the Magistrate during a subsequent trial, despite the appellant's contention that he had reasonable cause for his failure to appear.

The central legal issue before the court was whether the Magistrate erred in convicting the appellant of failing to appear when he had a reasonable cause for not doing so in a timely manner. Specifically, the court had to determine if the Magistrate's reasons for rejecting the appellant's explanation were sufficient, and whether the appellant's failure to appear was due to circumstances beyond his control, such as his diagnosed adjustment disorder and the panic attack he experienced on the day of the court appearance. Another aspect was whether the Magistrate exercised jurisdiction correctly when refusing to deal with the matter upon the appellant's late arrival.

In reviewing the case, the court noted that the appellant had made genuine efforts to inform the court of his delayed arrival due to illness and had a diagnosed mental health condition that affected his ability to manage his schedule effectively. Despite his late arrival, he had physically presented himself to the court, which demonstrated his intent to appear. The court found that the Magistrate did not adequately consider the appellant's circumstances and the evidence of his mental health condition when assessing whether he had reasonable cause for his failure to appear. The Magistrate's reasons for rejecting the appellant's explanation were deemed insufficient, and the conviction was found to be erroneous.

The appeal was allowed, the conviction was quashed, and the order made by the Magistrates Court was set aside. No order was made as to costs.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction is quashed.

3. The order made in the Magistrates Court is set aside.

4. No order as to costs.

Background

Background to the litigation

This appeal is pursuant to s 222 of the Justices Act 1886 (Qld). It requires this court to conduct a real review of the trial and of the Magistrate’s reasons and to make its own determination of the relevant facts giving due weight to the Magistrate’s view.[1][1]McDonald v Queensland Police Service [2017] QCA 255.Background The appellant was due to appear in the Holland Park Magistrates Court on 21 July 2023. The following recites the undisputed facts.[2][2]Exhibit 1- Letter from Queensland Advocacy for Inclusion. The appellant was a person with a disability and was vulnerable. He was due to appear in court on 21 July 2023. He was extremely unwell on that court date and went through significant pain and suffering by travelling to court for the mention but was determined to appear as soon as he could. Early on the morning of the court date, he contacted the court registry staff to say that he was extremely unwell, apologising to the staff for not being at court and advising he was still making his way to court and he would be there as soon as he could. Despite this a warrant was issued at 1008am. When the appellant arrived at the court it was still in session and he presented himself to the Magistrate who told him his attendance was too late, that a warrant had been issued for his arrest and he should present himself to the Holland Park Police Station where he would be taken into custody. The issue of the warrant caused significant stress for the appellant who required urgent support. With support, he surrendered himself to the Holland Park Police Station on Monday 24 July 2023 and fully cooperated with the police. He was given watchhouse bail to appear. The appellant continued to be extremely mentally unwell and required support and assistance. A trial for the alleged offence before another Magistrate on 23 August 2023. During the show cause proceedings the Magistrate said of Exhibit 1, “respectfully that does not amount to showing cause.” The Magistrate formed the view they were matters of mitigation only. The lawyer informed the Magistrate that the appellant was a person who was diagnosed with depression, visual or auditory hallucinations, short term memory, insomnia and panic attacks. He suffered a panic attack on the morning at the court. Regardless though, he took steps to get to the court. The Magistrate, without giving adequate reasons, found that cause was not shown.Appellant’s submissions The appellant submits that cause was shown here and the Magistrate should not have convicted the appellant. The respondent on the other hand submits that cause was not shown and the conviction is a valid one.Discussion Section 33 of the Bail Act 1980 (Qld) provides:“33 Failure to appear in accordance with undertaking(1)A defendant who—(a) fails to surrender into custody in accordance with the defendant’s undertaking; and(b) is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e);commits an offence against this Act.(2)It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause—(a) for failing to surrender into custody in accordance with the defendant’s undertaking; and(b) for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable.(3)Proceedings for an offence against this section—(a) shall be instituted and taken, without the laying of a complaint;(b) shall be taken in accordance with the following procedures—(i)production to the court before which a defendant apprehended under a warrant issued under section 28 or 28A(1)(a), (b), (c) or (e) is brought of that warrant shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the undertaking and of the failure to surrender into custody and that the issue of the warrant was duly authorised by the decision or order of the court that issued the warrant;(ii)judicial notice shall be taken of the following—(A)for a warrant other than a computer warrant—the signature of the person who issued the warrant;(B)that the person who issued the warrant was duly authorised to do so.(4)Upon production to the court of the warrant the court shall then and there call on the defendant to prove why the defendant should not be convicted of an offence against this section.

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

Full text does not contain this section.

CITATION:	Hennessey v Commissioner of Police [2024] QDC 52
PARTIES:	HENNESSEY, Daniel Kerrick (appellant) v Commissioner of Police (respondent)
FILE NO/S:	2708/23
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Magistrates Court at Holland Park
DELIVERED ON:	19 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2024
JUDGES:	Smith DCJA
ORDER:	1. The appeal is allowed. 2. The conviction is quashed. 3. The order made in the Magistrates Court is set aside. 4. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – BAIL – BEFORE TRIAL – OTHER MATTERS – Failure to appear – where the appellant called the registry to advise he would be appearing late – where despite this, a warrant was issued for his arrest – where he did appear and the Magistrate refused to deal with the matter and required him to surrender to the watch house – whether there was a failure to exercise jurisdiction – where the uncontested evidence is the appellant suffers an adjustment disorder which directly affects his ability to organise his life – where he had a panic attack on the day of court, but he made arrangements to attend – whether the Magistrate erred in convicting the appellant of failing to appear – whether the Magistrate’s reasons were sufficient – whether the appellant had a reasonable cause for failing to appear – whether failure to appear due to circumstances beyond his control Bail Act 1980 (Qld) ss 28A, 33 Justices Act 1886 (Qld) ss 76, 222 Qld Parliamentary Debates Second Reading Speech [1979-1980] vol 281, page 2931 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied DPP v Richards [1988] QB 701; 3 WLR 153 cited Joyce v Baird [2013] ACTSC 79; (2013) 276 FLR 128, cited McDonald v Queensland Police Service [2017] QCA 255, applied R v Peehi (1997) 41 NSWLR 476; (1997) 92 A Crim R 539, cited R v Singh [1979] QB 319; [1979] 2 WLR 100; [1979] 1 All ER 524, cited Taikato v R [1996] HCA 28; (1996) 186 CLR 454, applied
COUNSEL:	Ms E Kurz for the appellant Mr K Kinsella for the respondent
SOLICITORS:	Legal Aid Office (Qld) for the appellant Office of the Director of Public Prosecutions for the respondent