Ward v Queensland Police Service

[2025] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION:

Ward v Queensland Police Service [2025] QDC 149

PARTIES:

HEIDI MICHELLE WARD

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

Appeal No. 23 of 2025

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Proserpine

DELIVERED ON:

2 October 2025 (ex tempore)

DELIVERED AT:

Mackay

HEARING DATE:

2 October 2025

JUDGES:

Everson DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION AND SENTENCE – where the appellant relies on wide-ranging grounds – whether the appellant’s convictions should be quashed and the sentences imposed by varied.

LEGISLATION:

Criminal Code (Qld) ss 25, 31, 269, 271 and 340

Domestic Violence and Family Protection Act 2012 (Qld) ss 8(1) and 13

Police Powers and Responsibilities Act (Qld) ss 634 and 365

Justices Act 1886 (Qld) s 222

CASES:

House v The King (1936) 55 CLR 499

Mbuzi v Torcetti [2008] QCA 231

Pavlovic v Commissioner of Police [2007] 1 Qd R 344

COUNSEL:

Ms Roseby for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent

1. This is an appeal pursuant to section 222 of the Justices Act 1886.

2. An appeal of this type lies only from an order disposing of the complaint itself, not an interlocutory ruling.  However, the appellant may raise the correctness of an order which affected the final result.[1]

   [1]Paulger v Hall [2003] 2 Qd R 294.

3. The appeal is by way of rehearing.  I must make my own determination of the facts considering (subject to section 223) only evidence admitted at first instance and giving due deference to any advantage the magistrate had in seeing and hearing the witnesses.[2]

   [2]Mbuzi v Torcetti [2008] QCA 231 at [17].

4. So far as the appeal against sentence is concerned, I must not interfere unless an error of the type identified in House v R (1936) 55 CLR 499 has occurred. That is, if the magistrate acts on a wrong principle, allows extraneous or irrelevant matters to guide or affect him, mistakes facts or does not take into account some material consideration.

5. I had before me applications to adduce new evidence pursuant to section 223.  Section 223(2) provides that I may give leave to do this if I am satisfied that there are special grounds for granting leave.  In undertaking this task, I considered:

   (a)whether the evidence could, with reasonable diligence, have been produced at trial;

   (b)whether it is apparently credible; and

   (c)whether it might reasonably have led to a different verdict below.[3]

   [3]Pavlovic v Commissioner of Police [2007] 1 Qd R 344 at [34]–[36].

6. After a six day hearing in the Proserpine Magistrates Court, the appellant was convicted of one charge of serious assault of a police officer, one charge of assault of a police officer, one charge of obstructing a police officer, and one charge of trespass –  unlawfully remaining in a dwelling or yard.  She was acquitted of one charge of serious assault of a police officer and two charges of obstructing a police officer.

7. The appellant was sentenced at the conclusion of the trial on 30 May 2025, to concurrent terms of imprisonment of six months for the offence of serious assault of a police officer and four months for the offence of assault of a police officer.  She was given an immediate parole release date.  In respect to the offence of obstructing a police officer she was fined $750.00, and in respect of the offence of trespass she was fined $250.00.  Convictions were recorded.  The appellant appeals both the convictions and the sentences imposed. 

8. The appellant brought applications for leave to adduce further evidence.  The formal application she brought sought to adduce evidence of an injury to her mouth which occurred in the course of her being arrested.  This was something she cross-examined police about at trial.  In particular, Senior Constable Cousens was asked whether she saw blood in the appellant’s spittle or the appellant’s tongue being cut.  Senior Constable Cousens responded that she did not.[4]  The appellant could have given evidence of this at trial but elected not to do so.  I dismissed this application.  I also dismissed other unmeritorious applications to adduce further evidence without notice to the respondent.

   [4] T2-42, ll 26–33.

9. The appellant relies on wide-ranging grounds in appealing both her convictions and sentences.  Nine separate written submissions have been filed between 3 July and 18 September 2025.  They are repetitious and include allegations which are not founded in applicable legal principles.  Some allegations are embarrassing.

10. When it emerged that inadequate disclosure had been made by the prosecution, the learned acting magistrate adjourned the trial to enable this to occur and sanctioned the prosecution.[5]  The appellant suffered no prejudice and did not request any further adjournments.  The learned acting magistrate found the appellant not guilty of charges 2, 3 and 4.  He gave detailed reasons for his findings with the exception of charge 6, however this charge is clearly proved beyond reasonable doubt in the video footage in exhibits 6 and 7.  The learned acting magistrate was patient, polite, helpful, and scrupulously fair to the appellant throughout the trial.

    [5] T2-14. 

11. The appellant alleges that she did not receive a copy of the transcript of the proceeding on the last day before she had to address the learned acting magistrate, and this was unfair.  There is no merit at all in the submission.

12. The appellant alleges that the matter should not have been tried in the Magistrates Court as she did not consent to this course.  Her submission in this regard misapplies various provisions in the Criminal Code. The matter was, to the extent it included charges pursuant to section 340 of the Criminal Code, to be tried and determined summarily (in the Magistrates Court) if the prosecution elected to do so.  This is what occurred.

13. The appellant alleges that she was not properly arraigned.  She was arraigned in respect of charges 1 and 2 in circumstances where circumstances of aggravation that she spat on the police officer in question were not proceeded with.  She was asked if she opposed this course, and she said that she did not.[6]  This allegation is baseless.

    [6] T1-6, ll 5–20.

14. The appellant makes allegations about a separate domestic violence proceeding which was heard and determined by the same acting magistrate.  These allegations have no relevance to this appeal.

15. The balance of the appeal concerns findings of credit made by the learned acting magistrate, leading to the conviction of the appellant of charges 1, 5, 6 and 7.  All of the charges arose out of events which occurred on 22 November 2022. 

16. The first in time is charge 7. This is a charge of trespass, alleging that the appellant unlawfully entered the dwelling of her brother, Andrew Brauner, who lived next door. This charge is subject to section 634 of the Police Powers and Responsibilities Act 2000 (“PPRA”). It requires that a person suspected of committing such an offence be given a reasonable opportunity to explain why they entered the place in question and that the police officer considers the explanation given is not a reasonable explanation before a proceeding can be started.

17. Mr Brauner gave evidence that the appellant entered his house without knocking,[7] that he asked her to leave, and that she did not, so he called the police.[8]  The 000 call was played.[9]  It records Mr Brauner angrily asking the appellant to leave and complaining about her presence in his house.  The appellant can also be heard in the background.  Mr Brauner also alleges that she was drunk.  He makes this allegation at numerous times in his evidence.

    [7] T1-20.

    [8] T1-22.

    [9] Ex 2.

18. Mr Brauner is disabled and mobilises using a wheelchair.  Police attended shortly after the 000 call.  Body-worn camera footage from Senior Constable McFadgen[10] shows Mr Bauner complaining to police that the appellant had entered his house in circumstances where she was not welcome and had previously been advised of this by him.  He is told that police will put in a report about domestic violence, and he says that he is happy to proceed with a criminal charge of trespass.  Significantly, Mr Brauner says that he thinks that the appellant will come back.  There was no domestic violence protection order in place at the time.[11]

    [10] Ex 4.

    [11] T1-114, l 5.

19. Evidence was subsequently given by Mr Brauner that the appellant had been warned before and that he had called the police before.  He said that this had happened four or five times.[12]  He alleged that the appellant was “blind rotten drunk” and verbally abusive towards him.[13]  When the appellant put to him in cross-examination that she attended his residence after he called out for help, he denied this.  Mr Brauner’s evidence of previous unwelcome intrusions into his dwelling was corroborated by Senior Constable Gould.  She attended after a similar incident on 19 February 2022.[14]  Afterwards, she went to the appellant’s house and told her that if she went to her brother’s house again, she would be charged with trespass.[15]

    [12] T3-6, ll 42–44.

    [13] T3-5, ll 30–40. 

    [14] T2-109–110. 

    [15] Ex 5A.

20. After speaking to Mr Brauner, police officers Senior Constable McFadgen, Senior Constable Fallon and Senior Constable Cousens attended the appellant’s house next door.  They did so in circumstances where Senior Constable McFadgen gave evidence that there was a “flag” in the police system that the appellant had already been warned in the terms set out above.[16]  They found her, as described by Senior Constable McFadgen, slurring her words and belligerent.[17]

    [16] T1-85, ll 1–5.

    [17] T1-85, ll 28–29.

21. When told by Senior Constable Cousens that they were there to talk about domestic violence and trespass, the appellant responded that she had a 1.5 million-dollar claim against police and then started filming them on her mobile phone.  She gave her version of events that her brother had been calling for help, and that is why she went to his place.  I interject that the definition of domestic violence is extremely broad.  Pursuant to section 8(1) of the Domestic Violence and Family Protection Act 2012 (Qld), it is defined as, relevantly, including behaviour towards another which is emotionally or psychologically abusive, including a sibling by virtue of section 13.

22. The appellant continued to shout abuse at police from the top of the stairs of her house.  Senior Constable McFadgen said to arrest her for trespass.  Senior Constable Cousens said that she was going to arrest her for trespass.  Senior Constable McFadgen then ran up the stairs as the complainant ran inside and shut the door.  Senior Constable McFadgen pushed the door open and placed his hands on her arm and told her that she was under arrest.  The appellant was uncooperative and verbally abusive.  Then, she spat in the direction of his leg.  This gives rise to charge 1.

23. Ultimately, the appellant was led away in handcuffs and taken to the Whitsunday Police Station watchhouse.  There, she was belligerent and rude to police.  She clearly kicked Senior Constable Cousens, giving rise to charge 5, and this was observed by multiple witnesses.[18]  She also obstructed police attempting to remove her jewellery, giving rise to charge 6.[19]  This was all captured on body-worn video and CCTV.[20]

    [18] T1-92, ll 20–21 and T2-29, ll 5–10.

    [19] T2-29, ll 18–21.

    [20] Ex 6 and Ex 7.

24. The learned acting magistrate ultimately accepted Mr Brauner’s evidence as essentially proving the elements of charge 7, the charge of trespass, beyond reasonable doubt, despite describing him as “obstructive, combative, and argumentative”.  In the appeal, the appellant refers to numerous inconsistencies in his evidence, but these are not material to the finding of the learned magistrate.

25. In the course of her oral argument at the hearing of the appeal, the appellant relied heavily on an exchange during cross-examination where Mr Brauner said to the appellant, if she was worried about him, “Why couldn’t you come over”.[21]  He appears confused when answering these questions, and this appears to be at odds with his other evidence, his complaints to police immediately after the incident giving rise to the charge, and what can be heard in the 000 call.[22]  I defer to the learned acting magistrate’s advantage in hearing and observing the witness, and he was entitled to accept his evidence and find the appellant guilty of charge 7.

    [21] T1-59, ll 35–45.

    [22] Ex 2.

26. Given the history of the appellant apparently trespassing at Mr Brauner’s dwelling and the warning given by Senior Constable Gould, police were justified in starting the proceeding in respect of charge 7. The explanation of the appellant that she went there following a request for help was deemed not reasonable pursuant to section 634 of the PPRA.

27. Because charge 7 is a charge of trespass, the appellant could be arrested without a warrant if a police officer suspected that the appellant had committed this offence and that it was reasonably necessary to prevent the repetition of it or the commission of another offence.  Senior Constable McFadgen gave evidence that he suspected that the appellant had committed the offence of trespass,[23] that there was a history of her doing this and that she had been warned that she would be arrested if she did it again.[24]  Coupled with her defiant and belligerent behaviour,[25] Senior Constable McFadgen asserted that he was acting appropriately in arresting the appellant.  I find that the learned acting magistrate was correct in finding that the arrest of the appellant was lawful in the circumstances.

    [23] T1-84, ll 40–50.

    [24] T1-85, ll 1–5.

    [25] T1-85, ll 15–30.

28. In the trial and again on appeal, the appellant raised defences of compulsion pursuant to section 31 of the Criminal Code and self-defence pursuant to section 271 of the Criminal Code. Both of these defences are based on unlawful violence (section 31) or an unlawful assault (section 271). As the arrest of the appellant was lawful, these offences do not arise on the evidence. The appellant also raised provocation pursuant to section 269 of the Criminal Code, but there is no evidence of a factual basis for this defence before me. The same is true of the defence of extraordinary emergency pursuant to section 25 of the Criminal Code.

29. Turning to the appeal against the sentences imposed by the learned acting magistrate, I find the sentences imposed were well within the exercise of the sentencing discretion of the learned acting magistrate applying the principles set out in House v R cited above.

30. The appeal is therefore dismissed.