MB v Queensland Police Service

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DISTRICT COURT OF QUEENSLAND

CITATION:

MB v Queensland Police Service [2020] QDC 325

PARTIES:

MB

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)
FILE NO:

160/2020

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 November and 15 December 2020

JUDGE:

Smith DCJA

ORDER:

1.   The appeal is dismissed.

2.   The orders made in the Magistrates Court in this matter are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – Sentence manifestly excessive  − fresh evidence and events occurring after sentence − whether fresh evidence should be admitted when evidence could have been obtained – whether the fresh evidence makes any difference to the outcome − whether error established – whether sentence is manifestly excessive

LEGISLATION:

Justices Act 1886 (Qld) ss 222, 223, 225

Penalties and Sentences Act 1991 (Qld) ss 9, 12

CASES:

Day v Commissioner of Police [2018] QDC 3, cited

Director of Public Prosecutions v TAL [2019] QCA 279; (2019) 3 QR 1; 280 A Crim R 160, applied

Forrest v Commissioner of Police [2017] QCA 132, applied

Gallagher v R (1986) 160 CLR 392; [1986] HCA 26, cited

Hili v R (2010) 242 CLR 520; [2010] HCA 45, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

MH v Queensland Police Service [2015] QDC 124, cited

Parsons v Raby [2007] QCA 98, cited

Pavlovic v Commissioner of Police [2007] 1 Qd R 344[ [2006] QCA 134, applied

PFM v Queensland Police Service [2017] QDC 210, cited

Queensland Police Service v JSB [2018] QDC 120, cited

R v Maniadis [1997] 1 Qd R 593, cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

Taylor v Queensland Police Service [2015] QDC 75, cited

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, applied
COUNSEL:

Mr J Sheridan for the appellant

Ms C Georgouras for the respondent

SOLICITORS:

O’Reilly Stevens Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. This is an appeal by the appellant pursuant to s 222 of the Justice Act 1886 (Qld) (the JA).

  2. Section 222(2)(c) of the JA provides that where a defendant pleads guilty, appeals will be allowed on the sole ground that the fine, penalty, forfeiture or punishment imposed by the originating court was excessive or inadequate.

  3. Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices although there is a power to receive fresh evidence if there are special reasons to do so.

  4. In Forrest v Commissioner of Police,[1] it was said that an appeal by way of rehearing requires the appellate court to decide the case for itself.  It must conduct a real…

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Details
Case
[2020] QDC 325
Decision Date

CaseChat Overview and Summary

The case of MB v Queensland Police Service involves an appeal against a sentence imposed by the Magistrates Court of Queensland. The appellant challenges the sentence, arguing it is manifestly excessive. The appeal focuses on the admission of fresh evidence and the potential impact of a conviction recording on the appellant's employment prospects in Papua New Guinea (PNG). The Court of Appeal was tasked with determining whether the fresh evidence could be admitted, whether it would have altered the outcome if it had been presented at the original sentencing, and whether the sentence was manifestly excessive.

The appellant argues that the fresh evidence, which includes a work permit guideline, an employment contract, and company policies from Oil Search, demonstrates that the recording of a conviction would significantly impact his employment in PNG. The Crown contends that the evidence could have been obtained earlier and that it does not substantiate that a different outcome would have resulted. The court had to weigh the admissibility of the fresh evidence and assess whether the appellant's failure to obtain it earlier justified its admission. Additionally, the court needed to determine whether the sentence imposed was manifestly excessive.

The Court of Appeal found that the fresh evidence, while potentially relevant, did not establish special grounds for its admission as it could have been obtained earlier. The court concluded that the evidence did not alter the outcome, as the cumulative seriousness of the offences warranted the recording of convictions. The Court of Appeal also considered the appellant's medical condition and his consent to a five-year domestic violence order but ultimately found that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence and conviction recording were upheld.

The final orders of the court confirmed the dismissal of the appeal and upheld the Magistrates Court's decisions on the sentence and the recording of convictions.

Orders

Orders of the court

1. The appeal is dismissed.

2. The orders made in the Magistrates Court in this matter are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As to the recording of the conviction, her Honour said:“The further issue then is the recording of a conviction. It may have been the case that if there was just one or two offences that I would have been inclined to not record a conviction and I accept there may be an impact on your assessment of suitability for visas as a result of recordings of convictions… but given the prolonged nature of the behaviour over four months and the more serious examples of what happened on the 27th of April and the 17th of May and the continuation after your release from custody I am going to record convictions in the absence of specific information that would preclude employment in light of as I said the overall accumulated seriousness of the behaviour.”[6][6]Reasons page 5.10-20.Submissions as to new evidence The appellant seeks to rely on fresh evidence in this case. Section 223(2) of the JA allows the court to give leave to adduce fresh additional or substituted evidence if special grounds are found to justify such leave. Michael Jones Finch, a solicitor, has prepared an affidavit dated 3 November 2020. In the affidavit it notes that since 8 September 2020 the defence has been able to obtain further material to adduce at the hearing of the appeal. It is alleged the explanation for not having this material was because of difficulties in sourcing this material from his place of employment in PNG. The material includes a work permit guideline published by the Department of Labour and Industrial Relations, his employment contract with Oil Search including a code of conduct; the Oil Search policy mobility procedure rotational expatriate PNG and the Oil Search policy responding to domestic violence. The appellant submits that the court should admit the evidence arguing that there would be a miscarriage of justice if it was not admitted. The further evidence, it is submitted, discloses that the recording of a conviction will have a significant effect on his employment in PNG. It is submitted, that because of the urgency and the sentence being resolved, the material was not obtained for the sentence below. There is a further affidavit sought to be relied on. The affidavit of Craig Burnie, a colleague of the appellant states that “companies who employ international fly in fly out workers want such workers to have a clear police record.” He also alleges that “Developing countries have become a lot more strict in issuing working visas.” He also says he has no personal experience of what happens when one attempts to enter PNG after ticking “yes” to the criminal convictions question. He refers to the requirement to obtain a Maritime Security Identification Card and the effect of domestic violence convictions. The Crown, on the other hand, submits that there is no dispute as to the credibility of this material. The point in issue is whether the evidence could have been produced and whether it would have led to a different outcome if it had been produced. It is submitted the appellant has failed to show why the material was not obtained. It was readily accessible but in any event it is submitted that the appellant has not shown that a different outcome would have resulted if the material had been obtained.Discussion

Decision

Reasons for decision

The defence also submitted the appellant had a degenerative back condition caused from a motorcycle accident and required treatment for this. There were also tumours in the stomach as referred to on the psychological report. After obtaining instructions, the appellant consented to a five year domestic violence order.Magistrate’s decision The Magistrate noted the plea of guilty. She took into account the nature and seriousness of the offences noting the breaches of orders. Her Honour referred to the facts of the offences. She correctly noted that intoxication did not excuse the offences. She noted the virtual absence of previous convictions. Her Honour took into account the victim impact statements. The offer of compensation was specifically mentioned. The psychological report was specifically taken into account. Her Honour took into account the purposes of sentence including deterrence. Ultimately her Honour noted that while a suspended sentence (in whole or part) was within the range, a probation order was a just order in all of the circumstances. This would assist in rehabilitation. As to the recording of the conviction, her Honour said:“The further issue then is the recording of a conviction. It may have been the case that if there was just one or two offences that I would have been inclined to not record a conviction and I accept there may be an impact on your assessment of suitability for visas as a result of recordings of convictions… but given the prolonged nature of the behaviour over four months and the more serious examples of what happened on the 27th of April and the 17th of May and the continuation after your release from custody I am going to record convictions in the absence of specific information that would preclude employment in light of as I said the overall accumulated seriousness of the behaviour.”[6][6]Reasons page 5.10-20.Submissions as to new evidence The appellant seeks to rely on fresh evidence in this case. Section 223(2) of the JA allows the court to give leave to adduce fresh additional or substituted evidence if special grounds are found to justify such leave. Michael Jones Finch, a solicitor, has prepared an affidavit dated 3 November 2020. In the affidavit it notes that since 8 September 2020 the defence has been able to obtain further material to adduce at the hearing of the appeal. It is alleged the explanation for not having this material was because of difficulties in sourcing this material from his place of employment in PNG. The material includes a work permit guideline published by the Department of Labour and Industrial Relations, his employment contract with Oil Search including a code of conduct; the Oil Search policy mobility procedure rotational expatriate PNG and the Oil Search policy responding to domestic violence. The appellant submits that the court should admit the evidence arguing that there would be a miscarriage of justice if it was not admitted. The further evidence, it is submitted, discloses that the recording of a conviction will have a significant effect on his employment in PNG.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.