DISTRICT COURT OF QUEENSLAND
CITATION: | Hurley v Detective Sergeant Newton [2020] QDC 49 |
PARTIES: | HURLEY, Christopher James v NEWTON, Detective Sergeant Suzanne Maree |
FILE NO/S: | D215/2017 |
DIVISION: | Civil |
PROCEEDING: | S 222 Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 6 April 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 August 2019 |
JUDGE: | Devereaux SC DCJ |
ORDER: | 1. Leave to adduce new evidence refused. 2. Appeal dismissed. 3. By agreement, no order as to costs. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where the Commissioner of Police lawfully compelled an employee to give an interview for employment purposes under the Police Services Administration Act 1990 – where it is alleged that the compulsory interview was used for the purpose of a criminal investigation – where the same detective was used to investigate the criminal charges and the departmental employment investigation – where the appellant was convicted of two charges of dangerous operation of a motor vehicle – whether the criminal investigation was so unfair that there is no way to remedy the unfairness other than to allow the appeal and order a permanent stay of proceedings CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where it is submitted that the magistrate erred in failing to apply s 24 of the Criminal Code – where it is submitted that the magistrate made a material error of fact – where it is submitted that the magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act 2000 CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – powers of court on appeal to consider fresh evidence – where the appellant seeks to rely on fresh evidence pursuant to s 223 Justices Act 1986 |
LEGISLATION: | Justices Act 1886 (Qld), ss 222, 223 Police Powers and Responsibilities Act 2000 (Qld), s 616 Police Service Administration Act 1990 (Qld) Police Service Administration Regulation 1990 (Qld) Police Service (Discipline) Regulations 1990 (Qld) |
| Evidence Act 1977 (Qld) | |
CASES: | White v Commissioner of Police [2014] QCA 121 X7 v Australian Crime Commission 248 CLR 92 X7 v The Queen 246 A Crim R 402 Police Service Board vMorris (1985) 156 CLR 397 Nugent v Commissioner of Police (Qld) 261 A Crim R 383 Police Service Board vMorris (1985) 156 CLR 397 R v CB; MP v R [2011] NSWCCA 264 R v Wellington [2018] QDCPR 24 |
COUNSEL: | J. Hunter QC for the appellant M. Nicolson for the respondent |
SOLICITORS: | Gilshenan & Luton for the appellant Queensland Police Service for the respondent |
Introduction
On 17 May 2015, the appellant, then a senior sergeant of police, took part in…
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- AGLC
- Hurley v Detective Sergeant Newton [2020] QDC 49
- Case
- [2020] QDC 49
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the criminal investigation was so unfair that there was no way to remedy the unfairness other than to allow the appeal and order a permanent stay of proceedings. Additionally, the court had to consider whether the magistrate erred in failing to apply s 24 of the Criminal Code, whether the magistrate made a material error of fact, and whether the magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act 2000. The appellant also sought leave to adduce fresh evidence pursuant to s 223 Justices Act 1986.
The court found that the compulsory questioning was lawful, but the use of the answers to the questions had irredeemably undermined the criminal justice process. The court held that there was no miscarriage of justice, and the appeal was dismissed. The court refused leave to adduce new evidence as the material relied upon was available with reasonable diligence to the appellant’s legal representatives before the trial. The court concluded that no reason had been presented for not taking the point before trial. Therefore, the appeal was dismissed, and no order was made as to costs by agreement.
Orders
Orders of the court
1. Leave to adduce new evidence refused.
2. Appeal dismissed.
3. By agreement, no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Finally, Ms Smith asserts that the respondent was the officer who attended the scene, had carriage of the disciplinary and criminal investigations, conducted the compulsory interviews, obtained or organised the witness statements, and issued the Notice to Appear.Consideration The compulsory examination of a person charged with an offence about the charge “is very likely to prejudice him in his defence”[33] and may amount to “an improper interference with the due administration of justice”.[34] [33]Hammond v The Commonwealth (1982) 152 CLR 188 per Gibbs CJ at 198.[34]Hammond v The Commonwealth per Deane J at 206. Once it is understood that the compulsory questioning was lawful, the question must become whether the use of the answers to the questions has irredeemably undermined the criminal justice process. The appellant’s conduct might have been a serious breach of proper policing which appalled and affronted his superiors. But the wholesale appropriation of the disciplinary process to conduct the criminal investigation is designed to abuse the process of justice. As senior counsel for the appellant submitted at the hearing, the police commissioner having the power both to investigate disciplinary offences and charge employees with criminal offences, great care must be taken to avoid cross-contamination between the two processes. It falls to the commissioner to have in place a process which avoids the risk. Had an application to stay the proceeding been made it might well have been granted. Alternatively, a temporary stay might have been granted subject to the prosecution presenting a case untainted by the breach I have just described, although the appellant submits that in this case ‘the egg cannot be unscrambled’. There was no application. The trial proceeded. Senior Counsel for the appellant submitted at the hearing of the appeal that there was no identifiable forensic purpose in not seeking the stay. But it would not have been unreasonable for the appellant’s trial counsel to have considered a stay application unlikely to succeed, or to result in a trial just like that which occurred. Expecting the evidence that was ultimately presented at trial, it would have been reasonable for trial counsel to consider that the evidence beyond the objective video evidence was the kind of evidence the prosecution would have obtained and presented without the compelled interviews. In any case, the focus of inquiry is whether what occurred at trial was a miscarriage of justice.[35][35]Nudd v The Queen [2006] HCA 9. It was not a complex trial. The charges called for a judgment as to whether the appellant operated the vehicle dangerously in all of the circumstances. Video of the driving, from several angles, was in evidence. This was supplemented by police officers who were also engaged in the pursuit at various stages speaking of what they saw and heard, e.g., whether they did or did not hear police radio directions. Much of this was peripheral, if not irrelevant. Unsurprisingly, the learned magistrate’s reasons referred primarily to the video evidence. His Honour referred also to the opinion evidence as to sanctioned degrees of force but, as I have already noted, was careful to comment that whether the manoeuvre was unorthodox or outside police training did not determine the question of dangerousness.