XKP v Queensland Police Service
[2025] QDC 152
•24 October 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
XKP v Queensland Police Service [2025] QDC 152
PARTIES:
XKP
(appellant)v
QUEENSLAND POLICE SERVICE
(respondent)FILE NO:
BD 1585 of 2025
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
24 October 2025
DELIVERED AT:
Brisbane District Court
HEARING DATE:
29 August 2025
JUDGE:
Grigg DCJ
ORDER:
1. The appellant has leave to rely on the Amended Notice of Appeal filed 30 June 2025.
2. The appeal is allowed.
3. The matter be remitted to the Magistrates Court for re-trial.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where appellant charged with breaching domestic violence orders – where Magistrate at first instance found appellant guilty of one charge – where the appellant appeals the Magistrate’s finding of guilt – whether the Magistrate erred either in law or in fact in coming to the decision – whether procedural fairness was afforded to the appellant at the trial.
LEGISLATION:
Criminal Code 1899 (Qld), s 573
Domestic and Family Violence Protection Act2012 (Qld), s 177(1)(b)
Justices Act 1869 (Qld), s 222(1), s 225CASES:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31
House v The King (1936) 55 CLR 499; [1936] HCA 40Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Lavercombe v Legal Services Commission [2023] QCAT 58
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
NBE v PRT & Anor [2018] QDC 29PPP v The Queen (2010) 27 VR 68; [2010] VSCA 110
R v Garget-Bennett [2013] 1 Qd R 547; [2010] QCA 231R v Landy [1981] 1 WLR 355; [1981] 1 All ER 1172
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26COUNSEL:
A J Morris KC for the appellant
S McCray for the respondent
SOLICITORS:
The appellant is self-represented
Queensland Police Service Legal for the respondent
Introduction
On 26 November 2024, the appellant was arrested on a warrant and charged with the following offences:
On 30 June 2025, the appellant filed an amended Notice of Appeal against a decision of a learned Magistrate delivered on 9 May 2025.
The appellant had been charged with three charges of breaching domestic violence orders put in place on 7 December 2021. All charges were brought under section 177(1)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) which provides that a domestic violence order must not be contravened.
The charges carry a maximum penalty of 120 penalty units or 3 years imprisonment. One penalty unit is equivalent to $161.30.
The learned Magistrate was not satisfied beyond a reasonable doubt about the matters concerning charges 1 and 3. As such, those charges were dismissed. In relation to charge 2, the learned Magistrate found the appellant guilty and fined him $750. No conviction was recorded.
The Magistrate found the appellant had breached a domestic violence order because the content of an email sent to the aggrieved (his former partner) on 14 September 2024 fell outside of the exception to the non-contact condition of the protection order.
Pursuant to the Order made in the Federal Circuit and Family Court of Australia on 19 August 2024, the appellant was not permitted to contact the aggrieved unless that contact fell within the exceptions to the order. One of the exceptions was that the appellant could contact the aggrieved person via email regarding their three children.
The appellant has appealed the decision in relation to charge 2 .
The appellant also seeks leave to rely on the Amended Notice of Appeal.
Matters for Determination – Grounds of appeal
The grounds of appeal set out in the Amended Notice of Appeal can be summarised or grouped as follows:
(a)error of law: the verdict was unreasonable or cannot be supported having regard to the evidence;
(b)error of fact and law: lack of procedural fairness:
(i) two relevant defences were not considered;
(ii) it was not in the interests of justice to amend the particulars during the trial; and
(c)the sentence was manifestly excessive.
Relevant legislation
The appeal is brought under s 222(1) of the Justices Act 1896 (Qld) (Justices Act).
The powers of a judge on the hearing of such an appeal are set out in section 225 of the Justices Act as follows:
“(1)On the hearing of an appeal, the judge may confirm, set aside, or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
On appeal, the onus is on the appellant to demonstrate that there has been some legal, factual, or discretionary error made by the court below.[1]
[1] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; McDonald v Queensland Police Service [2018] 2 Qd R 612, at 627 [47]; [2017] QCA 255.
In determining whether the learned Magistrate has erred, it is important to keep in mind the words of the High Court in relation to discretionary decisions in House v The King [1936] HCA 40; 55 CLR 499, at 505 that:
“It is not enough that the judges composing the appellate Court consider that, if they have been the position of the primary judge, they would take a different course.”
It must be shown that there has been some error either in acting upon irrelevant matters or failing to take into account a material consideration.
Two requests for leave to amend Notice of Appeal
Prior to the hearing, the appellant sought leave to rely on an Amended Notice of Appeal. The respondent did not oppose this application and in fact submitted leave should be granted. As there is no apparent prejudice to the respondent, leave to amend the Notice of Appeal is granted.
At the hearing, the appellant, represented by Mr Morris KC, sought to raise a new ground of appeal, namely that the charge was bad for latent, or patent, duplicity.
This was not raised in the hearing below. As will become apparent, that is understandable.
The respondent neither consented nor objected to the late ground of appeal.
In addition to the length of the delay in raising a new ground of appeal, other factors to be considered in determining whether to exercise the discretion in favour of extending the time by which a Notice of Appeal can be lodged include:[2]
(a)any prejudice to the first respondent; and
(b)whether it is in the interests of justice to grant the extension.
[2] NBE v PRT & Anor [2018] QDC 29, at [6].
The duplicity argument is as follows. The prosecution case was that the appellant could have been convicted in relation to any one of a possible thirty-five plus emails in which he was said to have breached the protection order in that:
(a)the defendant used a different email address other than the one he had been requested to use (I note the appellant says this was not a term of the order); and/or
(b)the contents of the emails were outside the permissible scope of the order in that he discussed matters “such as” child support.
The learned Magistrate rejected the contention that the appellant could not communicate with his former spouse about child support. The appellant contends it was therefore unclear what else may have been relied upon by the respondent. Despite requesting particulars of the charge, they were provided late, and further, amended during the second day of the trial. At that stage, prosecution witnesses had already been called and cross-examined. The late amendment to the particulars introduced an additional “new” basis for a breach by introducing the allegation that the appellant had contravened the obligation to be of good behaviour in paragraph 1 of the domestic violence order.
The learned Magistrate permitted the amendment.
The effect of the amendment to charge 2 was, as submitted by Mr Morris KC, to turn a charge which is specific as to a non-compliance with one condition to a duplex charge which covers either a breach of term 1 or a breach of term 4.
No particular of that breach was provided in advance of the hearing.
The rule against duplicity is that a person cannot allege more than one offence in a single charge on an indictment. Latent duplicity refers to uncertainty or ambiguity in the charge such that the defendant does not know what is alleged.[3] The principle developed at common law is one of providing procedural fairness.[4]
[3] Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; PPP v The Queen (2010) 27 VR 68, 81 [43]; [2010] VSCA 110; Walsh v Tattersall (1996) 188 CLR 77, at 112; [1996] HCA 26, per Kirby J (Walsh v Tattersall).
[4] S v The Queen (1989) 168 CLR 266, at 284-285; [1989] HCA 66.
There are exceptions to the rule. In Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 112, Kirby J notes that the exception to the rule has been allowed:
(a)where the multiple acts relied on are so close in time and place that they can be viewed as one composite activity; and
(b)where the offence is one that can be classified as continuing in nature.
Kirby J held a strict approach to duplicity should be maintained.
At the hearing, I asked the respondent if they wanted time to make submissions on the duplicity ground and the answer was no. Despite this, a week after the hearing, without leave, the respondent sent the Court a copy of the decision of R v Garget-Bennett [2010] QCA 231; [2013] 1 Qd R 547 (R v Garget-Bennett) and a copy of a transcript of the special leave hearing where the Commonwealth Director of Public Prosecutions applied for special leave to appeal from the orders of the Court of Appeal in R v Garget-Bennett. No accompanying submissions were provided. I do not propose to concern myself with the special leave transcript and it is not apparent to me why there is any need to review the decision of R v Garget-Bennett, other than for a statement of general principle.
In my view, there is some merit to the duplicity argument. Therefore, leave is granted to raise the new ground of appeal. However, given my decision to set aside the conviction for procedural fairness reasons, I do not need to form a final view on this point.
Consideration
As referred to above, charges 1 and 3 were dismissed. The appellant was acquitted of charge 1 and charge 3 was the subject of a successful no case submission by the appellant’s counsel.
I have several concerns about how this matter proceeded.
What one first notices is that the three charges are identical save for the dates. No particulars of the charges were initially provided to the appellant. The appellant sought particulars. On 7 May 2025 in the evening before the trial commenced, the appellant was provided with the requested particulars.
The particulars provided in relation to charge 2 were as follows:
Not only were the particulars late, but they are also lacking in sufficient particularity as is discussed further below.
It is an understatement that providing particulars on the eve of trial, 5 months from the date of charge, was extremely late and unacceptable. At the outset of the hearing, then Counsel for the appellant, requested an adjournment because of the lateness of service of particulars, and the failure of the prosecution to provide a witness list or exhibit list. There was also a late suggestion of a witness giving evidence by way of special measures for which the appellant had been given no supporting information to consider his position. Counsel informed the learned Magistrate of these failings and that some requests had been made a week ago. The learned Magistrate was informed these matters were relevant to cross-examination. In relation to the late application for special measure, the learned Magistrate was also informed that this application, unsupported by affidavit evidence, was also opposed. His Honour granted the special measures application with insufficient reasons.
In response to why everything had been delayed or not disclosed, the Sergeant conducting the matter on the part of the respondent said:[5]
“SGT KAY:…unfortunately, the prosecution who had carriage of this matter has gone sick today, so I’ve been handed this file this morning, so I don’t know a lot of the background. I’ve read what I can this morning, and I’ve spoken to the witnesses this morning.”
[5] Page 1-3, lines 16 – 20 of the transcript of proceedings dated 8 May 2025.
The Sergeant could not provide any answers or explanations for the appellant’s concerns or to counter the adjournment request. The learned Magistrate said to Ms Bernardin, “which makes me all the more curious why you want an adjournment at all if you’ve got someone on the back foot”.[6] With respect, Ms Bernadin’s concern was her own client being on the back foot.
[6] Page 1-7, lines 18 – 19 of the transcript of proceedings dated 8 May 2025.
In these circumstances it was, in my view, procedurally unfair not to have granted the adjournment. The learned Magistrate, clearly trying to keep the matter afloat, and noting he was “stuck with it”[7] decided to proceed and decide as it went along. This path, although an attempt not to cause undue delay, was fraught.
[7] Page 1-3, line 34 of the transcript of proceedings dated 8 May 2025.
The learned Magistrate proceeded to hear the matter. Ms Bernadin again called for confirmation of the particulars in relation to charge 3 to ensure everyone was “on the same page”.[8] The proceedings should have been stayed pending the provision of the particulars.
[8] Page 1-22, lines 31 – 37 of the transcript of proceedings dated 8 May 2025.
The accused should have been provided with particulars and disclosure so that he knew precisely what was alleged. As was pointed out by the English Court of Appeal in In R v Landy [1981] 1 All ER 1172;[1981] 1 WLR 355 at 362, there is a very good reasons why particulars need to be given in advance:
“…to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment.”
See also Gleeson CJ in Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 at [2]:[9]
“The function of particulars is not to expand the issues … but “to fill in the picture … with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.”
[9] Cited by Boddice J in Lavercombe v Legal Services Commission [2023] QCAT 58, at [13].
Despite Ms Bernadin requesting clarity, given that the adjournment request had been denied, the learned Magistrate said, “the particulars can be changed at any time.”[10] The following exchange then occurred:[11]
“MS BERNADIN: Out of fairness, they should be established at the start of the trial before the evidence is called.”
[10] Page 1-23, line 42 of the transcript of proceedings dated 8 May 2025.
[11] Page 1-23, lines 44 – 45 of the transcript of proceedings dated 8 May 2025.
Then, the anticipated issue arose. On the second day of the trial, the prosecution sought to add an additional particular to charge 2 after the evidence of witnesses and cross-examination had already occurred. Ms Bernadin made known her opposition to the particulars being changed part way through the trial. The following exchange occurred:[12]
“MS BERNARDIN: I am opposed to the particulars being changed now part way through the trial because - - -
HIS HONOUR: Well, the particulars can be changed at any point, and the evidence has come out as to the order. I don’t think you can be taken by surprise, but I’ll hear your submissions on it.
MS BERNARDIN: They can, of course, be changed during the trial. It was specifically requested by the prosecution that they articulate exactly what —and the prosecutor’s specifically put on the record it was alleged that it was a breach of a good behaviour condition before your Honour and - - -”
[12] Page 2-7, lines 36 – 46 of the transcript of proceedings dated 9 May 2025.
Ms Bernadin again pleaded that these late changes were unfortunate for the defence.
The learned Magistrate allowed the late addition to the particulars. One of the outcomes of permitting the late addition to the particulars was to expand the issues, which, as referred to above, is not the function of particulars. The additional particular also raises the issue of duplicity and should have been the subject of a separate charge.
In my view this was a denial of procedural fairness. The adjournment should have been granted. Provision is made in section 573 of the Criminal Code 1899 (Qld) for an adjournment to be granted if a Court considers particulars are required.
The learned Magistrate erred in exercising the discretion to not grant an adjournment. It is unjust to expect an accused to properly prepare and instruct counsel on the run in what was a moveable feast of allegations. It is not for the accused to determine what case it is that is being run against him.
Public interest in efficient disposition of cases is of course relevant, but it cannot come at the expense of an accused having a proper opportunity to present their case. The adjournment request was only for a matter of days to ensure the accused had proper particulars, full disclosure, and material with which he could consider the special measures request. There would have been no injustice to the prosecution from a short delay, particularly where the cause of the delay was its own failure to attend to necessary steps.
In these circumstances, I am going to set aside the conviction and send the proceeding back to the Magistrates Court to be reheard.
It is not appropriate in my view in the circumstances to traverse the other grounds of appeal.
I will hear the parties as to appropriate directions.
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