Hoon v Queensland Police Service
[2025] QDC 71
•5 June 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Hoon v Queensland Police Service [2025] QDC 71
PARTIES:
Marthea Hoon
(appellant)
v
Queensland Police Service
(respondent)
FILE NO/S:
Appeal 11 of 2025.
DIVISION:
Appellate
PROCEEDING:
Appeal under the Justices Act 1886.
ORIGINATING COURT:
Mackay Magistrates Court
DELIVERED ON:
5 June 2025
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2025.
JUDGE:
Byrne KC DCJ
ORDERS:
1. Appeal allowed.
2. The matter is remitted to the Mackay Magistrates Court for re-hearing.
3. No order as to costs.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the defendant was convicted of one count of failing to give way when entering or driving on a roundabout – where the defendant was self-represented during the summary hearing – where the appellant appeals against conviction on the ground that the presiding Magistrate did not adequately provide advice to the appellant to ensure a fair hearing – whether the failure of the Magistrate to provide such advice amounts to an injustice – whether a miscarriage of justice has arisen on another ground.
COUNSEL:
Mr. J. Morris for the appellant.
Ms. A Gaden for the respondent.
SOLICITORS:
TdK Lawyers for the appellant.
Office of the Director of Public Prosecutions for the respondent.
Introduction
On 17 February 2025, the appellant was convicted in the Mackay Magistrates Court of one charge of failing to give way when entering or driving on a roundabout. The appellant was fined with no conviction recorded.
The appellant filed a notice of appeal within time. At the hearing of the appeal, she was granted leave, by consent, to amend the grounds of appeal, as follows:
“The learned Magistrate failed to ensure the trial was conducted fairly and according to law, in particular, the Magistrate failed to give Ms Hoon, as a self-represented defendant, sufficient advice as to:
(i) What she needed to do in cross-examination to comply with the rule in Browne v Dunn (1893) 6 R 67 (HL);
(ii) Her right to cross-examine witnesses as to credit;
(iii) The elements of the offence;
(iv) Her right to object to evidence or questions put by the prosecutor; and
(v) That the absence of sworn evidence by Ms Hoon may be fatal to her submissions.”
This is an appeal by way of re-hearing, and the onus is on the appellant to show there is some error in the decision under appeal.[1] The powers of this Court to interfere with the orders below are exercisable only where the appellant can demonstrate that, having regard to all the material, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. Further, the mere existence of error is insufficient. The Court may interfere only where the error has resulted in an injustice.[2]
[1]Allesch v Maunz (2000) 203 CLR 172, [23]; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, [14]; McDonald v Queensland Police Service [2018] 2 Qd R 612, [47].
[2]McDonald v Queensland Police Service, supra at [46].
In conducting the re-hearing, I must recognise the natural limitations that exist in the case of any appellate court proceeding wholly on the record, including, as in this case, the advantage the Magistrate had of seeing and hearing the witnesses.[3] Within those constraints, this Court is required to conduct a real review of the proceedings below, including the reasons below, and make its own determination of relevant facts in issue from the material, including any inferences to be drawn, giving due respect and weight to the Magistrate’s conclusions.[4]
[3]Fox v Percy [2003] 214 CLR 118, [23].
[4]Fox v Percy, supra at [22]-[25]; Robinson Helicopter Company Inc v McDermott [2016] 90 ALJR 67, [43] and [57].
Factual context
On the morning of 17 June 2024, the appellant drove her blue car west along Golf Links Road at Beaconsfield and came to a complete stop at a roundabout. It was a four-way intersection. She was intending to turn right. She testified that there was a lot of traffic on the road that ran north-south. She told a police officer at the scene, and also testified to the effect, that a vehicle towing a trailer entered the roundabout from the south and turned right into Golf Links Road. She gave inconsistent descriptions of the vehicle towing the trailer, but they were not wildly inconsistent, and nothing turns on this.
The appellant said she used the opportunity that was created by this vehicle effectively blocking the southbound lanes to enter the roundabout herself. The roundabout had two lanes. Once she entered it, she apparently went to the inside lane, no doubt to facilitate turning right as she intended.
While on the roundabout a utility driven by Mr Dusting collided with her car in the inside lane, causing it to spin. In his testimony he only spoke of looking to his right as he slowed down before entering the roundabout from the north. It was safe to enter and while on the roundabout, the blue car came into his path, and he could not avoid the collision. He was not asked if he saw a vehicle towing a trailer on the roundabout.
At the time of the collision, a white van was in the outside lane and adjacent to but slightly ahead of Mr Dusting’s vehicle, so it blocked his line of sight to the left while on the roundabout. It was driven by Ms Henderson. She testified that she looked to her right before entering the roundabout from the north. There was no need to stop. She saw the appellant’s car, which was stationery, and then it “just pulled out in front of me”. She managed to avoid a collision. She was not asked if she saw a vehicle towing a trailer on the roundabout.
Mr Ireland was driving immediately behind Mr Dusting. Slowing down behind the vehicle in front of him as he approached, and then entered, the roundabout. He recalled the appellant’s vehicle facing towards to him – presumably when it was spun around – and he took evasive action resulting in him colliding with Mr Dusting’s vehicle. He denied seeing a trailer on the roundabout.
Police happened across the collision site some time after it happened. Both officers activated their body worn cameras. Each spoke with the appellant separately.
Acting Sergeant Murnane gave an oral account of what the appellant said, which accords with the description given above.[5] The appellant’s recorded account to Constable Charchalis was played. No transcript was provided, so it was also played on the appeal hearing. Parts of it are difficult to hear because of passing traffic however I am satisfied that the appellant at least said, to the effect, that she was able to see past the trailer as it turned into Golf Links Road, that one vehicle was going at “a hell of a speed”, that she didn’t know where “he” came from and she didn’t know how fast “they” were going.
[5]It is unclear why the recording was not played, but no issue was taken with this.
The appellant was not legally represented at trial. The presiding Magistrate gave some direction, in layman’s terms, concerning some aspects of trial procedure. As the amended grounds of appeal reveal, issue is taken with the sufficiency of some aspects of that.
The appellant’s cross-examination of the witnesses was largely limited to establishing inconsistencies between their accounts as to the time of the collision. The reason for this is not entirely clear. However, it was suggested to Mr Ireland that he said to someone at the scene, possibly a police officer, that he had in fact seen a trailer. In his testimony he denied seeing a trailer. The appellant, in an admittedly unfocused manner, attempted to play the body worn camera footage from one of the police officers[6] in an attempt to prove a prior inconsistent statement, but this was refused by the Magistrate. His Honour considered that the recording of the witness was not admissible as the witness was present to testify.
[6]Although not precisely clear from the transcript, it seems likely it was that of Constable Charchalis.
When testifying herself, the appellant was clearly unsettled. In evidence-in-chief she did not speak of looking to her right before entering the roundabout.[7] In cross-examination, she did say that she had looked to her right, and that is why she stopped at the roundabout, and that she only entered the roundabout once the vehicle with the trailer turned right, thereby allowing her to do so. She was definite that there was no white van when she looked. She was not cross-examined as to the account she gave to Constable Charchalis.
[7]The appellant in fact started to say that she looked to her right but then corrected herself by reference to a Bunnings store, which was to her left.
In the course of submissions, the Magistrate twice asserted that there was no evidence that the appellant had looked right before entering the roundabout. In his reasons, he referred to the appellant looking left (as she’d also testified she did), found that the three vehicles were on the roundabout, that she did not see them and entered the roundabout without giving way.
The parties’ submissions
In essence, the appellant argues that the trial was unfair because of the failure of the Magistrate to give full directions as to the conduct of the trial, and as to the matters required to be observed by the appellant.
The respondent concedes that there was an unfair trial and that a new trial should be ordered. It is not on the basis of any one asserted error, but on the basis of the combined effect of each of these matters, and the failure to ensure the appellant was aware of the salient matters at all stages of the hearing.
Conclusion
The hearing below is yet another example of the difficulties faced by judicial officers in conducting hearings involving unrepresented litigants. The difficulties are exponentiated by the fact that this was heard in a busy Magistrates Court list. While I find there were errors justifying a re-hearing, I am not personally critical of the Magistrate.
With respect, the appellant’s submissions implicitly expect a degree of perfection in the explanation of concepts that seem to the lay person to be abstract. For example, the rule in Browne v Dunn is often difficult to apply when not trained, and even then some practitioners manage to do it poorly, if at all. It is a rule of fairness. Non-compliance with the rule will not often result in a trial being unfair to a defendant.
It can be accepted that the defendant was not specifically apprised by His Honour of the obligations created by this rule, nor of the ability to cross-examine as to credit.
The appellant argues that the failure to explain the need to comply with the rule means that the appellant’s case had not been put and contrary evidence was simply unable to be disregarded. I do not agree. It is not so much the failure to put the appellant’s own case which has caused difficulties here, but the difficulty she found in explaining her case in her evidence. However, as will be explained, it was certainly preferable that she be promoted to suggest aspects of what had been said to the police officers, and Constable Charchalis in particular, which seemed to be integral to her defence.
Although the appellant was not expressly told about the ability to cross-examine as to credit, in her own way she actually sought to do it in respect of Mr Ireland. However, she was prevented in doing so. The failure to give the appellant assistance with that concept has not resulted in an unfair trial, although the refusal to allow her to pursue the line of questioning has.
The last three particulars of the amended grounds of appeal have no weight. There is no suggestion in the material that the appellant did not understand what the prosecution had to prove. While it is true that there was some inadmissible evidence adduced in the hearing by the prosecution, it was incidental to the real issues in the hearing and there is no suggestion that it affected the decision delivered. Finally, the implications of the appellant not testifying were explained, albeit not in the suggested terms, and she did testify in any event. Those particulars of the ground of appeal cannot be accepted.
I accept that the responsibility to inform an unrepresented litigant of the matters of process of their duty and matters of process in a trial is important. But what is required will differ depending on the nature of the hearing, and the presiding judicial officer must be alert to ensure that, as far as is reasonably possible, the unrepresented litigant remains aware of their rights and obligations throughout the hearing. It is notable that the oft-cited authority for the existence of the responsibility, MacPherson v The Queen,[8] is an example of when the need to explain the legal issues arise for the first time in the course of cross-examination in the trial.
[8][1981] 147 CLR 512.
In my view, it would have been preferable in the circumstances of the hearing if the Magistrate had reminded the appellant of what she had told each of Acting Sergeant Murnane and Constable Charchalis when cross-examining the three witnesses, and asked her if she wanted to say anything about that. That would not have amounted to impermissible involvement in the evidence, and would have facilitated the assessment of the whole of the evidence. That is especially so when cross-examination did not touch on the account of Constable Charchalis, which seems, if maintained by the appellant, to have been an important part of her defence to the charge. That is, her assertion that others had travelled at “a hell of a speed” and come out of nowhere.
It was perhaps more important when the appellant herself testified to have reminded her of those accounts and invited comment. Had the appellant taken up that account, she could have been cross-examined. If she didn’t, those accounts could have been taken as not being embraced by the appellant any longer.
In any event, I do not need to consider if the trial was unfair to the appellant on those bases, as other relevant errors have been established in the course of arguing the amended grounds of appeal.
With respect, his Honour erred in refusing to allow the body worn camera involving Mr Ireland to be played. The appellant was entitled to explore the existence of a prior inconsistent statement about the presence of a trailer on the roundabout. In modern times, many statements that in earlier times were in writing are now electronically recorded. Difficulties arise in jury trials as to the procedure to use in establishing an asserted prior inconsistent statement without being forced to tender it. Those difficulties do not arise in summary hearings; the Magistrate is presumed to be capable of ignoring information that is not in evidence but which is placed before him as part of the trial procedures.
The recording should have either been played in Court, or his Honour should have adjourned to allow that to occur in presence of the witness but in his Honour’s absence. In that instance, when his Honour returned the witness could have either accepted that he had made the prior inconsistent statement, or it could have been formally proven.[9] The credit of the witness went to the veracity of his evidence that, in effect, he and the other motorists had done nothing wrong. Unfortunately, his Honour was given no assistance on this issue of procedure or admissibility by the police prosecutor.
[9]Section 18 of the Evidence Act 1977.
Further, his Honour materially misunderstood the appellant’s evidence when he considered that she had not testified that she had looked to her right before entering the roundabout. That certainly was the state of her evidence in chief, but not after cross-examination. While that proposition was not stated expressly in his Honour’s reasons, it is clear that his reasons were premised on that proposition, stated only minutes earlier during submissions. Again, the police prosecutor did not attempt to correct his Honour’s misunderstanding of the state of the evidence.
This was an aspect of the evidence that went directly to one of the issues in dispute, and the appellant was entitled to have her guilt determined on an accurate understanding of that evidence. Further, the recording made by Constable Charchalis also suggests that she had looked to her right, and this recording was not mentioned at any stage in his Honour’s reasoning. Although it was not an account directly given by the appellant in her testimony, it had been admitted into evidence by the prosecution, it was potentially exculpatory and there needed to be explained why it did not raise a reasonable doubt.
For those reasons, the appeal must be allowed.
Notwithstanding these errors, the case against the appellant has its strengths, based simply on the fact of the collision on the roundabout, the areas of damage to the vehicles and the inferences that can be drawn from all circumstances. However, given the deficiencies in the manner in which the appellant conducted her defence, and the fact that a properly conducted defence may materially alter the state of the evidence, it is not possible to assess the evidence properly to determine guilt or otherwise on this appeal. The matter must be remitted to the Mackay Magistrates Court for re-hearing.
The appellant, appropriately, does not seek costs.
One further observation
As submitted by the respondent, the publicly available Supreme and District Courts Criminal Directions Benchbook, Chapter 5 outlines a series of suggested instructions to be given to a self-represented defendant in a criminal trial in the superior Courts. They provide a possible guide only, and must be adapted to the circumstances at hand.
I agree that, although not directly applicable to summary hearings, those instructions could be modified to the circumstances of any particular summary hearing. What is required will differ from hearing to hearing, and the duty to assist an unrepresented litigant applies throughout the course of the often dynamic and changing circumstances of a hearing. The presiding judicial officer must remain alert to the need to ensure that the unrepresented defendant is not placed at an unfair disadvantage at any time during the trial, and circumstances may arise where the appropriate direction is not contained within that chapter.
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