Re HZX
[2024] QSC 168
•6 August 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Re HZX [2024] QSC 168
PARTIES:
HZX
(Applicant)
v
QUEENSLAND POLICE SERVICE
(Respondent)
FILE NO/S:
BS 9063 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
Orders made 2 August 2024, reasons delivered 6 August 2024
DELIVERED AT:
Brisbane
HEARING DATE:
2 August 2024
JUDGE:
Bowskill CJ
ORDERS:
1. Pursuant to r 15 of the Uniform Civil Procedure Rules 1999, leave to file the application seeking the issue of a writ of habeas corpus is refused.
2. Relief in the nature of a writ of certiorari is granted, in relation to the decisions of the magistrate made on 24 June 2024 to issue warrants pursuant to s 28A of the Bail Act 1980 and s 389(1)(b) of the Police Powers and Responsibilities Act 2000, and those decisions are set aside.
3. The defendant, HZX, is granted bail in terms of the separate bail order made by Bowskill CJ on 2 August 2024.
4. No order as to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – where the applicant was charged with criminal offences in the name P – where the applicant was granted bail in her married name, H – where the applicant’s bail was forfeited and warrants issued for her arrest on the basis of the applicant’s failure to appear – where the applicant was in fact present in court but would only refer to herself by reference to her married surname, H – whether the magistrate was correct to conclude that the applicant had failed to appear – whether the court had the power to order the warrants to issue for the arrest of the applicant
Bail Act 1980 (Qld), s 6, s 28A
Judicial Review Act 1991 (Qld), s 41
Police Powers and Responsibilities Act 2000 (Qld), s 389(1)(b)Uniform Civil Procedure Rules 1999 (Qld), r 15, r 590, r 592
Director of Public Prosecutions (Cth) v Turner [2015] QSC 298
Hainaut v Queensland Police Service [2019] QDC 223
Kelly v Fiander [2023] WASC 187
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
R v Sweet [2021] QDC 216COUNSEL: HZX, by video, appeared for herself
H Ward, by telephone, appeared for herself
G Elmore for Queensland Police ServiceN Miranda (solicitor) for the Chief Executive, Department of Corrective Services
SOLICITORS: Queensland Police Service Legal Services, for Queensland Police Service
Crown Law for the Chief Executive, Department of Corrective Services
This matter was dealt with in the applications list on Friday, 2 August 2024. At the end of the hearing, I made orders in the terms set out above, as well as an order under the Bail Act 1980 (Qld) for the release of HZX from custody. These are my reasons for making the orders and granting HZX bail.
HZX is charged with murder (on 29 December 2022) and with failing to apply to have the birth of her child registered (on 12 December 2022). It is not clear when she was charged, but according to a pre-sentence custody certificate dated 2 August 2024 (exhibit 2), she was in custody for about three months from 7 February to 8 May 2024. On 8 May 2024, North J granted her application for bail, on conditions that included a requirement that she appear at the Mackay Magistrates Court as and when required (condition 1) and that she report to the Mackay Police Station three times a week (condition 3).
HZX was apparently charged in the name P.[1] She says she is married and has changed her surname to H. The sealed Supreme Court bail order refers to her married name, H.[2] So too did the title page of the bail affidavit relied upon by the Queensland Police Service.[3] I mention this only to make the point that there has been inconsistent use of HZX’s unmarried name, P, and her married name, H, on what might be described as “official” documents used in relation to these criminal proceedings.
[1]This appears from a copy of the front page of a bench charge sheet, charging HZX with murder (annexed as “exhibit 1” to the application Ms Ward first sought to file, which was the subject of the registrar’s referral under r 15 UCPR).
[2]A copy of the sealed bail order dated 8 May 2024 was handed up by Mr Elmore of counsel; I subsequently directed my associate to mark it “exhibit 3”.
[3]This appears from a copy of the front page of a bail affidavit, annexed as “exhibit 2” to the application Ms Ward first sought to file, which was the subject of the registrar’s referral under r 15 UCPR.
It appears that, on 24 May 2024, she failed to report as required. The following day, a notice to appear was issued, in relation to that failure to report, requiring that she appear before the Mackay Magistrates Court on 24 June 2024.
HZX did appear, in person, before Magistrate Dwyer in the Mackay Magistrates Court on 24 June 2024. She was there in response to the notice to appear, and also in relation to the ongoing committal proceedings regarding the charges of murder and failing to register the death of her child.
The whole of what transpired at the Magistrates Court on 24 June 2024 is not known. Despite requests made by Queensland Police Service Legal Services on 25 and 31 July 2024, the transcript provider did not provide the transcript in time for the hearing on 2 August 2024. Two audio recordings of part of what transpired became available following my request made during the hearing on 2 August 2024.[4] Following the completion of the hearing, and prior to delivery of these reasons, the solicitor from Queensland Police Service Legal Services advised my associate that a transcript had become available, and it was provided to me.[5]
[4]During the hearing itself, only one of the recordings was able to be played in court. In preparing these reasons, I have been able to listen to both recordings. Following the hearing, I directed my associate to save the recordings onto a USB and mark it “exhibit 4”.
[5]The transcript has been marked “exhibit 5”.
What is not apparent from the transcripts and audio recordings which ultimately became available is, as this Court was informed, that HZX had a lawyer acting for her, up until the morning of 24 June 2024, when that lawyer was apparently given leave to withdraw. As to this, counsel appearing for the Queensland Police Service informed the Court that this had occurred; and it is also referred to in the transcript from 25 June 2024,[6] where the magistrate says “Mr Harvey acted until yesterday”. The name of the firm that previously acted for HZX, in the footer of the bail order made on 8 May 2024 (exhibit 3) is Harvey Legal.
[6]Exhibit ACM 05 to Ms Marszalek’s affidavit.
The following appears from both the transcript (exhibit 5) and what I can hear on the audio recordings (exhibit 4). This is to be understood in the context just mentioned –that HZX had appeared on 24 June 2024, at least at the outset, by her lawyer (albeit he was then given leave to withdraw) – and in light of another contextual fact, which is that HZX is charged with murder jointly with her husband, who uses the surname starting with H.
Part of what transpired prior to the commencement of the first recording appears in the transcript (exhibit 5), as follows:
“HIS HONOUR: Okay. Now, could you please call [name of the defendant, using the surname P]
MATTER INTERPOSED
PROSECUTOR: Your Honour, Ms Gravino has carriage of both of those matters. If she could be called as well. Your Honour, if I might stand aside for my friend.
HIS HONOUR: Thank you. Yes
MS S GRAVINO: Thank you, your Honour. Is your Honour mentioning the matter of [H] and [P]?[7]
[7]This is to be taken as a reference to the matters involving both HZX (by reference to the surname P) and her husband (by reference to the surname H).
HIS HONOUR: Yes, I was.
MS GRAVINO: Thank you, your Honour.
HIS HONOUR: I’ve called them and they’re not here. You want warrants?
MS GRAVINO: Ms [H] is present.
HIS HONOUR: Mr [H].
MS GRAVINO: Mr [H] will be in South Australia on bail conditions ---
HIS HONOUR: Okay.
MS GRAVINO: --- to reside there, from the Supreme Court.
HIS HONOUR: So I don’t need him?
MS GRAVINO: No. But his solicitor should have ---
HIS HONOUR: Yes. Ms Jessop [presumably, Mr H’s solicitor]. I’m just getting her on the phone. And Ms [P]?.
MS GRAVINO: She is within the court precinct somewhere. I’ve seen her this morning, your Honour. There is also fresh offence for Ms [P] for first mention today, a breach of bail.
HIS HONOUR: Yes.
PROSECUTOR: I might go see if she’s in the other court, possibly incorrectly sitting in court 1.
MATTER INTERPOSED
HIS HONOUR: Now, righto, Ms [P], it’s your turn now…”[8]
[8]Bold emphasis added.
The first recording commences with those last words – the magistrate saying to HZX: “Righto, Ms [P], it’s your turn now”. HZX starts to say “I am exercising my right to self-determination …”. The magistrate asks what that means. HZX says she will submit evidence [of some kind, it is not clear, but I infer, in relation to what she had just said about self-determination]. The magistrate responds that he does not want to see that, and says “just tell me”. HZX then commences to spell her full name, by reference to her married surname, H.
The prosecutor informs the magistrate that “Ms [P] is on Supreme Court bail. We call for Ms [P] to present to the courthouse. If she is not present, I would ask for that bail to forfeit. Your Honour also has a fresh charge of breach of bail before the court today.”
The magistrate then addresses HZX, saying “I have bail here, out of the Supreme Court, in the name of [full name, using the surname P]. Is that you? Is that you, yes or no?”. HZX responds by saying “my name is …” and spelling out her full name, by reference to her married surname, H.
The magistrate then says “you’re excused. I don’t accept that you’re Ms [P]. I’ll issue a warrant for Ms [P’s] arrest”.
HZX starts to say again that she is exercising her right to self-determination and that she is invoking international law. At the same time, the magistrate says that “the undertaking entered into in the Supreme Court is forfeited; warrant to issue”. It may be assumed that this warrant was purportedly issued under s 28A(1)(a) of the Bail Act 1980, which relevantly provides:
“28A Other warrants for apprehension of defendant
(1)A court that a defendant is required to appear before may issue a warrant for the defendant’s apprehension if the defendant fails to surrender into custody after being –
(a) released on bail by the Supreme Court… on condition that the defendant will appear before a Magistrates Court…”[9]
[9]Underlining added.
The prosecutor asks for a “PPRA warrant” to also issue. The magistrate says to HZX “unless you tell me that you are [full name, by reference to the surname P], I will issue that warrant [I infer, the PPRA warrant] and you’ll be arrested when you go outside. Are you Ms [P] or not?”. HZX responds “I have stated my name… and because I have invoked international law ….”. The magistrate tells her he has finished with her matter; that “I have no interest in you, I’m interested in Ms [P] and she’s not here” and requests “security” be brought in. The magistrate then orders that a warrant issue for Ms P and says that she is to be arrested “as soon as the police find her”. HZX can be heard to continue speaking (repeating her statements along the lines of self-determination etc). The magistrate asks for the court to be cleared and then the court is adjourned. It may be assumed this was a warrant purportedly issued under s 389 of the Police Powers and Responsibilities Act 2000, which relevantly provides:
“389 Court may order immediate arrest of person who fails to appear
(1)Subject to section 390,[10] if a person fails to appear before a court as required by a notice to appear served on the person, the court may –
…
(b) order that a warrant issue for the arrest of the person to be brought before the court to be dealt with according to law.”[11]
[10]Section 390 provides for the court to strike out a notice to appear if the court is not satisfied the person was served.
[11]Underlining added.
I pause to note that, in one of the affidavits of Ms Ward, filed in support of the application for leave to bring an application for the issue of a writ of habeas corpus (discussed further below), there is a reference to the magistrate “screaming” at HZX. That is not borne out by the audio recording.
It is not clear how much later in time the second audio recording is. It commences with the same magistrate asking that HZX’s full name, using her surname P, be called three more times. That is done. A period of silence ensues, during which it is not clear what is happening. The magistrate then says “so you are [full name, using the surname P]?”. HZX can be heard to say “my name is …” and then to spell out her full name, using the surname, H. While that is happening, the magistrate invites her to “come forward”, and to “keep going”. The magistrate then immediately proceeds to say the following:[12]
“HIS HONOUR: In this matter – this is [full name, P]. Under the protocols of arrest and execution of warrants in the Magistrates Court precinct between Judge Orazio Rinaudo, the Chief Magistrate of Queensland, and Mr Ian Stewart, the Commissioner of the Police Service in Queensland on the – in April of 2017, I have called – I have previously issued a warrant for the arrest of [full name, P]. I have again called for [full name, P] to surrender into the custody of the court. She has not done so. As a consequence, I – the – of [full name, P] not appearing and surrendering into this court, I do not cancel or withdraw the warrant. I will – that would mean that the Queensland Police Service have permission to come into the court precinct and arrest the defendant. Thank you.
PROSECUTOR: Thank you, your Honour.
DEFENDANT: However, I have been removed of my right to self-determination as such, and because I have filed evidence to the court, I am not under diplomatic immunity under international law.
HIS HONOUR: Thank you. The police can come in and arrest ---
PROSECUTOR: Thank you, your Honour.
HIS HONOUR: --- execute that warrant against whoever the person is. Thank you.
PROSECUTOR: Thank you, your Honour.”[13]
[12]This transcript is exhibit ACM 04 to Ms Marszalek’s affidavit.
[13]Underlining added.
HZX was arrested and taken into custody.
The next day, 25 June 2025, the magistrate returned to this matter.[14] It appears HZX appeared by video-link on this occasion. The magistrate addresses HZX as Ms P. He does not ask her to respond and she is not recorded as saying anything. The magistrate then says:
“[P], there’s two further charges that on the 24th day of June 2024 at Mackay in the State of Queensland, you, being a defendant within the meaning of the Bail Act of 1980, you broke a condition of an undertaking in which you’d entered on the 8th of May 2024 in the Supreme Court of Queensland, namely, you must not contact or communicate with, or attempt to contact or communicate with, either directly or indirectly, any Crown witness for which you were granted bail requiring your appearance before a court.[15] Further, that on the 24th day of June 2024 at Mackay in the State of Queensland, you failed to surrender into custody at the Mackay Magistrates Court in accordance with the undertaking entered into by you on the 8th of May 2024 in the Supreme Court of Queensland.”
[14]The transcript is exhibit ACM 05 to Ms Marszalek’s affidavit.
[15]The details of this charge are not apparent on any of the material before this court.
The magistrate asks the prosecutor about whether “it’s a Legal Aid brief or not?” and refers to Mr Harvey (the solicitor who “acted until yesterday”). The magistrate asks HZX if she is going to get herself another solicitor and “what’s going to happen?”. The transcript records no response from HZX. The magistrate then proceeds to adjourn the matter to 7 August [2024] for committal mention and remands HZX in custody.
It seems HZX had some friends present when she appeared in court on 24 June 2024. One of them is Ms Heidi Ward. On 27 June 2024, Ms Ward attempted to file in the Supreme Court what was described as an application for a writ of habeas corpus. A registrar referred the application to a judge of this Court, under r 15 of the Uniform Civil Procedure Rules 1999. That rule provides for such a referral where the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious. The rule provides that the court may direct the registrar to accept the document for filing and issue the originating process, or refuse to do so without leave of the court. In the present case, a judge directed that the registrar refuse to issue the originating process without leave of the court. That was an understandable direction, in my view, because the documents which Ms Ward sought to file are difficult to understand, and included affidavits from multiple people, all in the same generic terms, referring to the different names used by HZX, but also other incomprehensible statements (about HZX not being a corporation, “not entering into her trust nor any contract with” the magistrate, and that “her will and testimony of self-determination … was read to the court in the living”). The documents do not make sense. It was not possible to understand what the issue was, until the further information about what transpired on 24 June 2024 became available during the hearing on 2 August 2024.
After being advised by the registrar of that decision, and that she could apply for leave to file the application, Ms Ward then proceeded to do that, on 11 July 2024. That application, for leave to file an application for a writ of habeas corpus, first came on for hearing in the applications list before me on 25 July 2024. Ms Ward appeared by phone, and a legal officer from the Queensland Police Service appeared in court. There was confusion about who the parties to the application were, what the application was for and what the matter was about, which was not able to be resolved either by reference to the file (including because the referral and direction under r 15 UCPR was not, then, on the file) or by Ms Ward or the legal officer from QPS. The legal officer from QPS did, however, say that a transcript of the proceeding in the Magistrates Court had been requested, and the court might be in a better position to understand what the issue was once that was available. There was also a suggestion that perhaps Queensland Corrective Services ought to be involved. I understood Ms Ward to say that she planned to speak to a lawyer, and I encouraged her to seek legal advice. The matter was adjourned to 2 August 2024.
By the start of the hearing on 2 August 2024, it was apparent that what was before the court was an application, by HZX, for leave to file an application for a writ of habeas corpus. HZX (not Ms Ward) is named as the applicant on the application filed on 11 July 2024. Such an application may be made by the person under restraint or by another person (UCPR r 590), so it could have been made by Ms Ward (and Ms Ward seemed to proceed on the basis that she was the applicant). It became apparent that the basis for the application is an argument that HZX’s bail was wrongfully forfeited, and the warrants wrongfully issued, because she was present in court on 24 June 2024, albeit identifying herself by reference to her married name, H.
At the hearing on 2 August 2024, Ms Ward again appeared, by telephone. HZX appeared by video-link from custody. Although HZX is the applicant, she was happy for Ms Ward to also participate in the proceedings, and I gave her leave to do so. The application for leave names the King (“R”) as the first respondent, the Department of Child Safety as the second respondent and the “Department of Police Prosecutions” as the third respondent. Mr Elmore of counsel appeared on behalf of the Queensland Police Service, which seems to be the correct name for the contemplated third respondent (although I note Ms Marszalek, a senior legal officer with QPS Legal Services, says that she has carriage of this matter for the first respondent, the Crown). Mr Miranda appeared on behalf of the Chief Executive Officer of the Department of Corrective Services, which is not a party to the application, but appeared in case it might assist the court. There was no other appearance.
Mr Elmore was able to provide factual context to the circumstances surrounding HZX’s appearance in the Magistrates Court on 24 June 2024, including by reference to parts of the transcript that were then available. As already noted, the picture became clearer with the benefit of the audio recordings. Mr Elmore also provided helpful legal submissions.
The first question to determine is whether the magistrate was correct to find that HZX failed to appear on 24 June 2024? In my respectful view, he was not.
There is no definition of “appear” in the Bail Act or in the Police Powers and Responsibilities Act. It should be given its ordinary meaning, having regard to the context in which it is used.
In Kelly v Fiander [2023] WASC 187, Vandongen J considered the meaning of “appear” in a similar context – s 55(1) of the Criminal Procedure Act 2004 (WA), which provides for a summary procedure where the accused does not appear. The accused person in that case was physically present in court, but would not acknowledge their name, preferring to adopt what the judge referred to as the misguided “strawman duality theory” (see at [11]-[13]).[16] As to the meaning of “appear”, Vandongen J said, at [48]-[50]:
“48There are several ordinary meanings of the word ‘appear’ (and its derivative ‘appearance’), including meanings relating to circumstances in which the word is used in a legal context.[17] Although the ordinary meanings suggest that when it is used in a legal context it connotes visible, and therefore personal or physical, attendance in court, they do not support a conclusion that it is necessary that the person attending must acknowledge that they are a party to the relevant proceedings in order for them to be considered to have ‘appeared’.
49The statutory context of s 55(1) confirms that, consistent with the various ordinary meanings of the word, an accused charged before a court of summary jurisdiction with a simple offence will not ‘appear’ unless they are physically before the court when their charge or charges are being dealt with by the court.[18] In that regard there are numerous provisions that operate on the premise that the accused is before the court, including provisions that oblige the court to provide the accused with certain information, that empower the court to take certain steps but only with the accused’s consent, that are concerned with entering pleas, and which are designed to ensure that an accused appears in court on a subsequent date.
50However, the statutory context also strongly supports a conclusion that it is not open to find that an accused who is before the court ‘does not [appear]’, for the purposes of s 55(1), merely because they refuse or fail to clearly acknowledge that they are the person whose name appears in the prosecution notice.”[19]
[16]See also R v Sweet [2021] QDC 216.
[17]Footnote in original: For example, the Shorter Oxford Dictionary (5th ed) contains several definitions of the word ‘appear’, including: ‘[p]resent oneself formally before an authority; come before a court etc. Also, act as legal representative for someone’.
[18]Footnote in original: There are some specific exceptions to the requirement that an accused by physically before the court in order to ‘appear’. For example, s 77, s 141 and s 177 allow for an accused to ‘appear’ via an audio or video link. Further, an accused who is charged in a summary court with a simple offence may also ‘appear’, for the purposes of s 55(1) of the CP Act, if they are represented by counsel who is before the court, even if the accused does not personally attend court at that time: Saad v Baron [2012] WASC 507.
[19]Underlining added.
Those observations apply equally to the meaning of “appear” in the Bail Act and, for that matter in the PPRA, in which the word is to be given a consistent meaning.
The first reference to the word “appear” in the Bail Act is in the definition of “undertaking” in s 6:
“undertaking means a promise in writing with respect to bail signed by a defendant or by a defendant and the defendant’s surety or sureties that the defendant will appear at a hearing or an adjourned hearing or upon the defendant’s trial or an appeal and surrender into custody and comply with such other conditions as are imposed for the defendant’s release on bail.”[20]
[20]Underlining added.
To “surrender into custody”, when used in relation to a defendant who is, relevantly, on bail, is defined in s 6 to mean “surrender into the custody of the court at the time and place for the time being appointed for the defendant to do so”.
To “appear” does not mean simply be present at the relevant court building; it means to appear before a judicial officer sitting in court at a particular time and place, as required by the person’s undertaking.[21]
[21]Director of Public Prosecutions (Cth) v Turner [2015] QSC 298 at [35].
A question that may arise in another case, but not on the facts of this case, is whether stepping inside a courtroom, but refusing to come to the bar table and address the judicial officer (for example, shouting at the judicial officer from the back of the public gallery, particularly where the words being shouted are in defiance of respect for the court process) is sufficient to “appear”. Justice Peek in Adelaide City Council v Lepse [2016] SASC 66 at [54] held that it was not. So too did Jenkins J in Ashwell v Commissioner for Consumer Protection [2015] WASC 337 at [27]-[29].
However, if the person is not only present in the court, but appears before the judicial officer, at the appointed time and place, they surrender into the custody of the court for the time being. As Flanagan J observed in Director of Public Prosecutions (Cth) v Turner [2015] QSC 298 at [36], “the effect of appearing before the court in accordance with an undertaking is that the person surrenders him or herself into the custody of the court. The defendant is not free to depart unless the undertaking is enlarged”.
The requirement for a “notice to appear”, issued under the Police Powers and Responsibilities Act, is the same – such a notice must “require the person to appear before a court of summary jurisdiction in relation to the offence at a stated time and place” (s 384(1)(d)).
That “to appear” means to appear before the court “personally” is also made clear by the provision of exceptions, when a defendant does not need to appear personally: for example, s 20(3AA) of the Bail Act, where the defendant is represented by a lawyer; and s 27(4) of the Bail Act, where a defendant need not appear, on presentation of an indictment, if the defendant is represented by a lawyer.
It is also supported by the consequence of failing to appear:
(a)under the Bail Act, that a warrant for the defendant’s apprehension (meaning to physically seize or arrest a person) may issue (s 28A); and
(b)under the Police Powers and Responsibilities Act – if a person fails to appear before a court as required by a notice to appear, the court may either:
(i)hear and decide the complaint in the absence of the person; or
(ii)order that a warrant issue for the arrest of the person to be brought before the court to be dealt with according to law (s 389(1)).
A defendant may appear by remote means, such as a video-link, in some cases. An example, in relation to the Magistrates Court, is part 6A of the Justices Act 1886. Relevantly, s 178D of that Act provides that a person appearing by video “is taken to be in the presence of the primary court for all purposes”. And, as already mentioned, a defendant may appear by a lawyer.
If the person is physically present before the court, at the appointed time and place, then they have “appeared” in accordance with their undertaking and have thereby surrendered into the custody of the court “for the time being”. To “appear” and “surrender into custody” does not require something more, for example, such as an acknowledgment by the person that they are the person named in the notice to appear, undertaking or bench charge sheet or the like.
As Vandongen J also said, in Kelly v Fiander, at [57]:
“It could not be concluded that an accused person has chosen not to contest charges, or that they do not take issue with what is alleged by the prosecution, merely because they refuse to identify themselves when asked to do so by a court, or do not clearly identify themselves with a name used in a prosecution notice. As this case demonstrates, the accused may have conducted themselves in this way because they hold misguided beliefs about the legal significance that attaches to a name that appears in a prosecution notice, and not because they do not wish to defend themselves.”
I also agree with the following observations by Vandongen J, at [60]-[61]:”
“60Importantly, an accused person who is before the court ‘appears’, for the purposes of s 55(1), even if they refuse to accept or clearly acknowledge that they are the person named in the relevant prosecution notice, or that they identify themselves with that name. The issue for the court to decide is whether it is sufficiently satisfied that the person who is before them is the accused who is named in the prosecution notice; that they are the person who is alleged to have committed the specified charge or charges.
61This is because, in deciding whether an accused has appeared for the purposes of s 55(1) of the CP Act, the court should be concerned with the question of whether the person who is alleged in the prosecution notice to have committed the specified offence is before the court, no matter by what name or other incantation they identify themselves with at that time.”[22]
[22]Underlining added.
The evidence before this court establishes that HZX did appear before the Magistrates Court at Mackay on 24 June 2024. She was there, in person, before the magistrate; and the magistrate was able to be satisfied that she was the person named in the charge. The fact that she did not, or would not, acknowledge that she was Ms P, does not mean that she did not “appear”.
HZX’s conduct on 24 June 2024 is at the lower end of the scale of conduct engaged in by some self-represented litigants who seek to propound “pseudolegal” arguments. There are far more irrational examples experienced regularly in courts.[23] It should be acknowledged that conduct of this, and the more irrational, kind is disruptive and time-wasting, particularly for a busy magistrate who has to deal with a high volume of cases and people. It is not sensible or logical and does not facilitate the efficient determination of matters before any court. But courts have to deal with all manner of difficult people, and have to find a way to manage them, consistent with the rule of law.
[23]As discussed by Judge Cash KC in R v Sweet [2021] QDC 216 at [3]-[5].
Of course it would have been far simpler had HZX simply said yes, I am Ms P, although I prefer to be called by my married name, Ms H.[24] She did not do that, instead electing to make statements about self-determination and international law which had no relevance to her appearance before a Magistrates Court in response to a notice to appear issued for a charge of breach of bail and for the purposes of the committal proceedings more broadly.
[24]And, if she wants the charges to proceed in her married name, the remedy lies in application of s 597 of the Criminal Code (which provides that “[i]f the accused person says that the person is wrongly named in the indictment, the court may, on being satisfied by affidavit or otherwise of the error, order the indictment to be amended”); see again R v Sweet [2021] QDC 216 at [9].
But the fact is that HZX was before the court, regardless of what she was saying. She did “appear”. Importantly, in this case it is apparent, from the factual information available, that the police prosecutor and the magistrate were able to be satisfied that HZX was indeed Ms P, despite her refusal to acknowledge that name. This was not a case in which there was any doubt about who HZX was.[25] That is apparent from the following:
(a)that both her unmarried name, P and her married name, H, had been used on various “court” documents – therefore the name H was known to the police prosecutor;
In fact, at the start of the transcript (exhibit 5) the prosecutor referred to Ms P as Ms H, when saying to the magistrate that “Ms [H] is present”. The prosecutor clearly knew who HZX was (going on to tell the magistrate that “[s]he is within the court precinct somewhere”, before HZX came into the courtroom).
(b)when HZX first appeared, on 24 June 2024, her lawyer appeared with her and sought leave to withdraw; and
(c)although the magistrate would not accept that HZX had appeared, unless she acknowledged her name as Ms P, he seemingly assumed she could be arrested as Ms P as soon as she went outside (see paragraph [15] above) or, later, when police were allowed to come into the court to arrest her (see paragraph [17] above) – there is an inherent inconsistency in the idea that the court did not accept HZX was Ms P, for the purposes of her appearing in court, but did accept that she was Ms P for the purposes of her being arrested in accordance with the warrants.
[25]As was the case also in Hainaut v Queensland Police Service [2019] QDC 223, in which the District Court allowed an appeal against a conviction, entered following a hearing in the absence of a defendant, who had appeared before the court on the day, but refused to acknowledge their name (see at [26]).
For those reasons, I find that the magistrate erred in concluding that HZX had not appeared before the Magistrates Court on 24 June 2024, in accordance with her undertaking and the notice to appear.
Given that it was clear the prosecutor knew who HZX was, and had even referred to her by the name H, the prosecutor should have made this clear to the magistrate, rather than pressing for “bail to forfeit”, when HZX was standing in court next to her. In fairness to the prosecutor, however, the transcript reveals the magistrate was very quick to leap to offering to issue warrants (at the start of the transcript which is exhibit 5, before HZX had come into the courtroom) and then to actually issue warrants, when HZX would not acknowledge her name as Ms P, from which I infer he held a particular view about what should happen in such circumstances, and would not likely have been dissuaded from it.
The next question is, what follows from that conclusion?
The first thing that follows is that the magistrate’s decision to issue the warrants, under each of s 28A of the Bail Act and s 389(1)(b) of the Police Powers and Responsibilities Act, is affected by jurisdictional error: in both cases, the court’s power to order that a warrant issue for the arrest of a person is conditioned upon the failure of the person to appear. If that fact is not present, the court does not have power (jurisdiction) to make the order.[26]
[26]Craig v South Australia (1995) 184 CLR 163 at 177-180; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163], referred to in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [66]; see Kirk also at [71]-[77]
The next thing is that, in light of that conclusion, an application for the issue of writ of habeas corpus (which would involve a direction to bring HZX before the court (UCPR r 592(2)(a)), to consider whether she ought to be “release[d] from restraint”) would serve no purpose, and would only delay matters further. Accordingly, it is appropriate to refuse leave to bring such an application.
The appropriate relief is to make a certiorari order – that is, an order in the nature of [a writ of] certiorari,[27] setting aside the decisions of the magistrate to issue the warrants. There was some discussion at the hearing about whether the Court could entertain an oral application for such relief. In the end result, I was satisfied it was appropriate to proceed, at the hearing on 2 August 2024, to make the order, in the exercise of this Court’s inherent jurisdiction. It was in the interests of justice to proceed without further delay in that regard, because the matter concerns a person’s liberty and all interested parties were present before the Court.
[27]See s 41 of the Judicial Review Act 1991 (Qld); Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [56]; Sica v Attorney-General [2021] 9 QR 543 at [13].
Being satisfied that such an order is appropriate, it follows that HZX ought to be released from custody, to once again be subject of a bail order in the terms previously made by this Court on 8 May 2024 in respect of the criminal charges she faces.
The consequence of making a certiorari order, setting aside the magistrate’s decisions to issue both warrants on the basis of jurisdictional error, is that the decisions are taken, effectively, never to have been made – as a result of which, the 8 May 2024 bail order would once again operate. However, in order to avoid any possible doubt or procedural delay in this regard, I decided it was appropriate to make a further bail order, in the same terms as the 8 May 2024 order, and extend that order also to the new charges – breach of bail, on 24 May 2024; and breach of bail and failure to appear, on 24 June 2024 (noting the obvious weakness of the Crown’s case on the 24 June 2024 charges).
One additional condition was added to the bail order. It was sensibly suggested by Mr Elmore, and agreed to by HZX. To the condition requiring that HZX appear as and when required, before the Mackay Magistrates Court or any higher court to which she is committed, I have added a condition that she must so appear and surrender into the custody of the court if either the names P or H are called.
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