Whiley v The Commissioner of Police
[2023] QDC 92
•31 May 2023
DISTRICT COURT OF QUEENSLAND
CITATION: Whiley v The Commissioner of Police [2023] QDC 92 PARTIES: GEORGE WILLIAM WHILEY
(Appellant)
v
THE COMMISSIONER OF POLICE
(Respondent)FILE NO: D3/2023 DIVISION: Criminal PROCEEDING: Appeal – s 222 Justices Act 1886 (Qld) ORIGINATING COURT: Rockhampton Magistrates Court
DELIVEREDON:
31 May 2023
DELIVEREDAT: Rockhampton District Court HEARINGDATE: 22 May 2023 JUDGE: Clarke DCJ ORDERS: 1. The appeal be dismissed
2. The Appellant is to pay the Respondent’s costs, on the
standard basis
CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST CONVICTION – summary hearing – whether the Magistrate erred – rehearing on the evidence – whether apprehension of judicial bias LEGISLATION: Justices Act 1886 (Qld) ss 222, 223, 225 CASES: Allesch v Maunz (2000) 203 CLR 172
Teelow v Commissioner of Police [2009] QCA 84
Fox v Percy (2003) 214 CLR 118
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
McDonald v Queensland Police Service [2018] 2 Qd R 612
Mbuzi v Torcetti [2008] QCA 231
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
APPEARANCES: The Appellant appeared on his own behalf
Ms C. O’Connor, instructed by the Queensland Police Service for the Respondent
Mr Whiley appeals his convictions following a summary hearing in the Rockhampton Magistrates Court on 12 September 2022 for offences of public nuisance[1] and driving without due care and attention.[2]The offences occurred on 28 October 2020.
[1] s 6(1) Summary Offences Act 2005 (Qld)
[2] s 83 Transport Operations (Road Use Management) Act 1995 (Qld)
The grounds of appeal are:
1.Her Honour forgot to arraign me at the first re-trial and unnecessarily ordered a third trial;
2.Her Honour refused me the opportunity to view transcripts from the second trial (re-trial);
3.Her Honour failed to compel two witnesses to attend court when lawfully summoned;
4.Her Honour took over three months to deliver her verdict suggesting the existence of reasonable doubt;
5.Her Honour made factual errors when delivering her verdict;
6.Her Honour unjustly denied me the use of police body-cam video during my trial.
The Respondent submits the appeal should be dismissed and costs awarded on the standard basis.
The Respondent confirms that following a successful earlier appeal which the Appellant refers to throughout his material, a summary hearing was commenced on 13 June 2022. That hearing was abandoned, after some evidence was given only by the main witness, when the Magistrate realized the Appellant had not been called upon (again) to enter a not guilty plea. The summary hearing from which this appeal is brought was conducted on 12 September 2022 by the same Magistrate who had abandoned the hearing in June 2022. The Appellant chose to absent himself from the September hearing before it concluded, after having been given two short adjournments to prepare for his continued cross-examination of the (first) main witness. The hearing continued in his absence pursuant to s142A Justices Act 1886 (Qld) and no issue is taken with that on this appeal. The Magistrate gave her (extempore) reasons on 16 December 2022 convicting the Appellant of both charges and imposing one fine of $750 which was referred to the State Penalty Enforcement Registry.[3]
3Pursuant to s 49 Penalties and Sentences Act 1992 (Qld) the court has power to impose one fine for two or more offences founded on the same facts.
I am satisfied, for the reasons which follow, on having conducted a rehearing of the evidence, the appeal should be dismissed.
Appeal generally a rehearing on the evidence
Section 223 Justices Act 1886 (Qld) (the Act) confirms an appeal under s 222 is by way of rehearing on the original evidence given in the proceeding the order is appealed against.
Courts have regularly determined the basic following principles apply: it is for the Appellant to demonstrate some legal, factual or discretionary error;[4] the court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its own inferences and conclusions.[5]
[4] Allesch v Maunz (2000) 203 CLR 172; Teelow v Commissioner of Police [2009] QCA 84.
[5] Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.
In Mbuzi v Torcetti[6] Fraser JA said this:
The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy[7] at [25];
Rowe v Kemper[8] at [5].”
[6] [2008] QCA 231 at [17].
[7] (2003) 214 CLR 118.
[8] [2008] QCA 175.
Pursuant to s 225 of the Act, among other things, on hearing the appeal I may confirm, set aside, or vary the appealed order or make any other order I consider just.
Summary of the evidence – rehearing
I have conducted a real review of the transcript of the summary hearing and reasons for decision. The case concerned the Appellant’s conduct at a pre-polling booth at the Yeppoon PCYC. The Appellant was not interested to receive a how to vote card from the main witness, who was a One Nation candidate, while making his way to the polling booth. After voting, the Appellant approached him, called him a racist and threatened by words to assault him. The One Nation candidate replied he was not racist; he was an Aboriginal man. On retrieving his motorcycle helmet, the Appellant leant in so that his helmet touched the brim of the man’s hat, clenched and raised his fist as if to punch him and spoke in a loud, raised voice. The Appellant swore at him and accused him of being part of a racist party, and for removing or deleting him from a Facebook page. The Appellant challenged him about whether he resided in his electorate.
The conduct was witnessed by the other people there, including candidates of opposing parties, an elected politician and other party supporters. The public nuisance is the Appellant’s offensive, disorderly and threatening behaviour that interfered with the ability of voters and others to move, or peacefully be in that public place. After that, the Appellant got on his motorcycle, revved the engine and rode, at speed, close to the main witness and others in the car park area, spraying gravel and debris on them. The people had to step back. That is the second charge.
In the cross-examination he did conduct, the Appellant’s challenge to the main witness included whether they had argued and what was written in a QP9 summary about that; the witness saying he was listening while the Appellant was yelling, so that wasn’t an argument. There was questioning about how a police complaint was made; the witness said he first decided to notify police of the behaviour, because the Appellant was a stranger to him, before making the complaint.
As to the issue about access to a transcript, the relevant cross-examination centered upon whether the Appellant raised the fact the witness had a family or children (who may be affected by global warming), by reference to what another witness had recalled. There was questioning about whether the candidate for the Informed Medical Options Party was wearing a One Nation shirt. There was questioning about the weather; the witness said it was a fine day, his statement had recorded a thunderstorm had passed through earlier.
On being given an adjournment for about 20 minutes, to provide a further opportunity to prepare his cross-examination, the Appellant asked a question and immediately stated he needed more time to find the relevant transcript passage, and to revert to police body worn camera footage. The Appellant sought another adjournment of the hearing to get the transcript and to bring a Judicial Review. A short time later, he announced his intention to take no further part in the hearing. He was not present when the court resumed, and the remaining witnesses gave unchallenged evidence, largely consistent with the evidence already given.
As to the first ground of appeal, the Appellant argues it was unnecessary for the Magistrate to abort the first rehearing, which was caused by her ‘mistake’. The relevant procedural provisions confirm the requirement for a complaint to be stated to the defendant and for the court to ask how the defendant pleads, before proceeding to hear the complaint.[9] The Appellant could point to no prejudice, apart from not having access to the transcript from that June hearing, claiming the main witness had changed his story ‘hugely’. As the Respondent submits, it appears the Appellant had ample time to apply for the relevant transcript, and to seek a full or partial waiver of the costs payable.[10] This ground of appeal lacks merit.
[9] ss 145 and 146 Justices Act 1886 (Qld)
[10] s 5B Recording of Evidence Act 1962 (Qld); ss 7, 10 Recording of Evidence Regulation 2018 (Qld)
The second ground is replicated in the argument about the first. The Appellant was not able to show her Honour had ‘refused’ him any opportunity to access a transcript.
The third ground refers to the considerable discourse at the commencement of the summary hearing when the Appellant claimed her Honour should adjourn the hearing, and for the court to call two witnesses he said he had lawfully summoned. The first was the politician who was present at the polling booth on the relevant day. The police prosecutor confirmed the politician had not given a statement and she was not a witness to be called. The second was a police officer who apparently handled the Appellant’s complaint to the Crime and Corruption Commission about the conduct of the arresting officer in this matter. Apart from the former being at the polling booth on the day, the Appellant was not able to demonstrate how those witnesses were relevant and compellable. Despite saying he had proof of service, he did not produce it at the time of the summary hearing, or on the appeal. He also said he had not served them, saying he would have to ‘crash tackle’ them to do so. He also said a man who called himself John Smith who worked at the politician’s office had refused to be served on her behalf. Crucially, the Appellant confirmed he had not provided conduct money to either person.
I find no error in her Honour reaching the determination the police officer was not likely to give material evidence, and that both of the potential witnesses had not been appropriately served or been paid a reasonable sum for their costs of attendance, on a consideration of the information available, and the relevant provisions[11]. The Appellant argues that being impecunious, he should not have to pay for a local politician to attend. The argument fails to acknowledge the obligation to do so before the power to bring the witness to court can be used. There is no merit to this ground.
[11] ss 56, 78 and 79 Justices Act 1886 (Qld)
The fourth and fifth grounds can be conveniently dealt with together. Whilst I accept there was a considerable delay between the date of hearing and delivery of the decision, that fact, of itself, does not suggest a reasonable doubt. The delay was explained (at least in part) by the provision of a transcript of the proceedings. As to the factual errors, the Appellant highlights the evidence of the Greens candidate, who he says contradicted other witnesses about where in the car park the events occurred. It is clear from her Honour’s reasoning that she did not rely upon the evidence of that witness. Even though it was not fundamentally inconsistent, having regard to that witness’ obscured view and limited ability to see and hear the things he was giving evidence about, her Honour appeared to appropriately put that evidence to one side, and consider the other evidence.
The sixth ground related to the ‘unjust’ denial of the use of hearsay footage captured following the incident which apparently recorded an interaction between the main witness and others, with police. There seemed to be no material relevance to the content of the conversation about the incident that had occurred, or what had transpired on the day. The reliance upon the hearsay document had been one of the reasons I found the original conviction could not stand when I determined an appeal on 29 September 2021.[12] At the new summary hearing in September 2022 the Appellant claimed he was unaware of the earlier decision and appeared unprepared to accept the Magistrate’s clear explanation about how that evidence may become relevant but was otherwise inadmissible. There is simply no substance to that complaint.
[12] Whiley v The Commissioner of Police [2021] QDC 241.
Apprehension of bias
In addition to the grounds of appeal, the Appellant otherwise alleges serious misconduct on the part of the Magistrate. At the summary hearing, he alleged bias and incompetence. At the start of the hearing he claimed that he had caught witnesses colluding and that her Honour should adjourn the hearing to allow a criminal complaint to be made about that, or to direct witnesses to stop doing it. Her Honour was content for the prosecutor to remind the witnesses not to discuss their evidence.
For the time he chose to be present in the court room, the Appellant was allowed to continually interject, interrupt, argue, speak over and criticize the police prosecutor and the Magistrate. The Appellant was not called on to simply stop making gratuitous disparaging comments and to conduct himself appropriately. He continually addressed the civilian police prosecutor by his first name, whom he stated ‘wouldn’t like justice’ and accused of hiding evidence.
Among other things, the Appellant called her Honour a disgrace, told her she had made a huge mistake, had erred many times, suggested she was acting unlawfully to protect the government, and asked if the police had compromising photographs of her. The Appellant stated the Magistrate had lied about the witnesses not being properly summoned. Perhaps the following comment is illustrative: “This is disgusting. I can’t believe what liars you people are. I don’t know how you sleep at night, your Honour. Did you know anything about that – you (sic) reporting that lady being buried in the ground. Some lady went missing in 1989 and they released a $500,000 reward. I can tell you where she might be.” Also, I think I can safely infer the Appellant was referring to the Magistrate and prosecutor when he later said, “Yeah, well, let’s just concentrate on you keeping your job and you keeping your job…and stuff the people of Queensland.”
At the appeal, the Appellant still alleged incompetence and bias in the conduct of the matter by the Magistrate, although acknowledged some of his behaviour at the hearing was not appropriate.
Most recently, Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[13] confirmed, by reference to Ebner v Official Trustee in Bankruptcy[14] the criterion for the determination of an apprehension of judicial bias. The criterion is concerned with the real and not remote possibility a fair minded lay-observer might reasonably apprehend the judge or judicial officer might not bring an impartial mind to the resolution of the question to be decided. Their Honour’s said this:[15]
Application of the criterion was identified in Ebner[16], and has been reiterated[17], logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
[13] [2023] HCA 15 at [37], [38]
[14] (2000) 205 CLR 337
[15] [2023] HCA 15 at [38]
[16] (2000) 205 CLR 337at 345 [8]
[17] Charisteas v Charisteas (2021) 273 CLR 289 at 296-297 [11]
I am satisfied there can be no complaint about her Honour’s conduct in the hearing the subject of this appeal. In my view, her Honour exercised considerable tolerance, restraint and patience and there is nothing to show the Appellant was denied a fair hearing due to any bias or prejudice. I am satisfied the Appellant was not hindered in the presentation of his case.
It is ordered:
1.The appeal be dismissed;
2.The Appellant pay the Respondent’s costs on the standard basis, fixed in the sum of $1800.00;[18]
[18] Schedule 2 Justices Regulation 2014 (Qld)
3.If the costs remain unpaid after a period of 28 days, the Registrar of the Rockhampton Supreme and District Court give notice of that to the State Penalty Enforcement Registry.
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