DISTRICT COURT OF QUEENSLAND
CITATION:
Smith v Commissioner of Police [2022] QDC 192
PARTIES:
CHANTELLE SMITH
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO:
D24/22
DIVISON
Appellate
PROCEEDING:
Application for an extension of time within which to appeal
ORIGINATING COURT:
Magistrates Court
Maroochydore
DELIVERED ON:
5 August 2022 (ex-tempore)
DELIVERED AT:
Maroochydore
HEARING DATE:
5 August 2022
JUDGE:
Cash QC DCJ
ORDERS:
1. The appellant has an extension of time within which to appeal;
2. The appeal is allowed and the convictions are set aside
3. The matter is remitted to the Magistrates Court for re-hearing according to law; and
4. The respondent is to pay the appellant’s costs of the appeal fixed in the amount of $1800.
LEGISLATION:
Justices Act 1886 (Qld), s 222
APPEARANCES: Mr C van der Weegen for the appellant.
Ms N Hamilton instructed by the Queensland Police Service Legal Unit for the respondent.
HIS HONOUR: On 8 December 2021, the appellant appeared in the Magistrate’s Court at Maroochydore in respect of three allegations of contravening a domestic violence protection order. After a summary hearing, she was convicted by the Magistrate. She has appealed against her convictions, the notice of appeal being filed late, but as the respondent submits that the appeal should be allowed it is appropriate to grant an extension of time within which to appeal.
Another consequence of the Prosecution’s submission that the appeal should be allowed is that it is not necessary for me to rehearse in detail the proceeding before the Magistrate. The Prosecution submits at paragraph 7.14 of their outline that:
The Magistrate incorrectly shifted the onus [of proof] onto the appellant.
The outline of the Prosecution’s submissions continues at paragraph 7.14 and 7.15 to refer to statements of the Magistrate during his decision. Those statements, I set out:
She is unable to particularise the timing or details of those events in any convincing manner and having rejected her evidence where it conflicts with that of the Prosecution witnesses, I find that no defence of either provocation and/or self-defence is made out. Because of the vagueness of the defendant’s evidence and submissions, I find the defendant was unable to establish any event occurred within a relevant proximal timeframe of any of the events the subject of the charges for it to be provocation or self-defence.
The other passage referred to by the prosecutor is as follows. The Magistrate said:
The defendant only has to prove any defence to the lower standard of on the balance of probabilities. I find however she has failed to do so in respect of any defence for the reasons I have just stated.
In those circumstances, the respondent submits that the Magistrate improperly reversed the onus of proof, and the appellant unsurprisingly agrees with that submission. The Prosecution proposes that the proper orders are for the appeal to be allowed and for the matter to be remitted for re-hearing. The appellant at first did have an argument that a verdict of acquittal ought to be entered but has not pursued that argument.
In the circumstances, the orders will be as follows: (1) the appellant has an extension of time within which to appeal, (2) the appeal is allowed, and the convictions are set aside, (3) the matter is remitted to the Magistrates Court for re-hearing according to law, and (4) the respondent is to pay the appellant’s costs of the appeal fixed in the amount of $1800.