Larry Edward Crouch v Melissa Macey

[2025] QDC 69

DISTRICT COURT OF QUEENSLAND

LOURY KC DCJ

DC No 3223 of 2024

LARRY EDWARD CROUCH  Appellant

v

MELISSA MACEY  Respondent  

BRISBANE

23 MAY 2025

JUDGMENT

LOURY KC DCJ:

1.   The appellant was charged with an offence under s 231 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 of crossing a road at pedestrian lights. He did not appear on the date his matter was listed for hearing. The hearing proceeded in his absence pursuant to s 147 of the Justices Act 1886.

2.   The evidence established that on 14 June 2023 two police officers were performing pedestrian enforcement duties in Brisbane city. Ms Melissa Macey gave evidence that they were standing on the corner of Charlotte and Albert Streets in the city at around 1:15pm. A group of pedestrians coming from the Queen Street mall approached the intersection and stopped as the pedestrian light was red. The appellant was seen to approach the intersection, stop and proceed to cross the road against the red light. Body-worn camera footage was tendered which evidenced the offence.

3.   The learned Magistrate found that the offence had been proven beyond reasonable doubt. She convicted the appellant, fined him $114 and ordered the appellant pay costs in the amount of $473.80.

4.   The ground of the appellant’s appeal is that:

“I was unable to attend court on 28/10/24 because of a medical condition that prevented me from attending. I notified the Magistrates Court and Police Prosecutions of my condition but the matter proceeded in my absence. I have a hernia that became strangulated causing acute pain in my right groin and extending into internal organs. I am receiving ongoing treatment and awaiting surgery for my hernia.”

5. Notations on the Magistrates Court file indicate that the appellant requested a re-hearing of the matter on 10 November 2024 because of a medical emergency. The appellant did email the Registry at 8:08am on 28 October 2024 indicating that he could not attend court due to his medical condition. He attached a copy of the report in respect of a scan confirming his medical condition. That email was not forwarded to the learned Magistrate who called the appellant’s matter for hearing at 10:45am. The learned Magistrate considered that she did not have power to re-open the appellant’s hearing pursuant to s 147A of the Justices Act 1886 which was confirmed to the appellant in written correspondence.

6.   The appellant has adduced new evidence as to the surgery he underwent in respect of that medical condition on 16 December 2024.

7. The appeal by the appellant is not against the refusal to re-open the proceedings but rather an appeal against his conviction pursuant to s 222 of the Justices Act. The appellate powers of this court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[1]

[1] Allesch v Maunz (2000) 203 CLR 172.

8.   Whilst not articulated with any precision, the appellant’s complaint is that he was denied procedural fairness in that he was denied the opportunity to be heard due to his medical condition which he notified at least the courts about. A denial of procedural fairness is an error of law.

9.   The respondent argues that the learned Magistrate did not deny the appellant procedural fairness by proceeding in his absence as she had power to do so and properly considered the nature and details of the matter. Procedural fairness however requires a party to court proceedings be afforded a reasonable opportunity to present a case and a reasonable opportunity to respond to the case advanced by the opposing party.[2] The appellant did not have a reasonable opportunity to present a case or to respond to the prosecution’s case because of his medical condition. Had the appellant’s email and supporting documentation been brought to the attention of the learned Magistrate in all likelihood the matter would have been adjourned. The mere fact that the learned Magistrate had a power to hear the matter in the appellant’s absence does not mean that he has no entitlement to procedural fairness. I am satisfied that the appellant has established that the conviction is the result of a legal error.

[2] Kioa v West (1985) 159 CLR 550 at 582, 615.

10. The appellant has also appealed his sentence on the ground that the penalty imposed was excessive. A submission was made by the prosecutor that a costs order should be made in favour of the Queensland Police Service. As indicated a costs order was made. Because of my determination as to the appeal against conviction it is unnecessary to decide the appeal against sentence. I note though that the ordering of costs can only be made pursuant to s 157 of the Justices Act. That provision provides that in a case of a summary conviction there is a discretion to order that the defendant pay to the complainant such costs to them as seem just and reasonable. The complainant in this matter is not the Queensland Police Service (which is not a juridical entity) but rather Melissa Macey, the police officer who brought the charge. Proper submissions should have been made as to how it was just and reasonable for the costs of a police officer travelling to court in her own car and the meal allowances to which she is or was entitled from her employer pursuant to an enterprise bargaining agreement are just and reasonable. The learned Magistrate did query why it was necessary for a police officer to use her own car to travel to court to perform a function of her duty as a police officer. She also queried the meal allowance to which she was entitled from her employer. Unfortunately, she was not given the assistance of proper submissions directed to the provision respecting the awarding of costs. In circumstances where the appellant was not present and the matter proceeded in his absence, it was incumbent on the prosecutor to assist the learned Magistrate with proper submissions directed at how these costs were just and reasonable.

11. It should be borne in mind that the purpose of an award of costs is to partially compensate successful litigants for legal costs they have actually incurred. Section 158B provides that in deciding the costs that are just and reasonable the justices may only award costs for an item allowed for under a scale of costs prescribed under a regulation and up to the amount allowed for under the scale. The prosecutor said that there was no scale for the attendance of police officers but nonetheless submitted that pursuant to s 157 the learned Magistrate had a discretion to order the costs that she did on the basis that they were just and reasonable. No foundation for that submission was made and clearly enough no regard was had in the making of that submission to the legislation governing the making of a costs award. Section 7 of schedule 2 of the Justices Regulation 2004 provides that costs allowed to the complainant may include an amount up to the amount required to reimburse a payment by the State of a prosecution witness allowance paid or that will be paid to prosecution witnesses attending the proceeding. It is not clear to me that Ms Macey was a prosecution witness because she was, in fact, the complainant. In any event Section 3 of schedule 2 provides:

A cost is to be allowed only to the extent to which—

(a)incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or

(b)the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.

12.  A prosecution witness allowance is itself defined and means an amount payable under the Criminal Practice (Fees and Allowance) Regulation 2021. Those provisions have nothing to with an enterprise bargaining agreement.

13.  As indicated though it is unnecessary for me to decide this issue given my determination with respect to the conviction.

14.  The appeal is allowed. The conviction and sentence are set aside. I remit the matter to the Magistrates Court for determination.