Bott v Queensland Police Service [2025] QDC 193

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Laurent v Commissioner of Police [2015] QDC 160

McDonald v Queensland Police Service [2017] QCA 255

Neil v Nott [1994] HCA 23; (1994) 121 ALR 148

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456

Teelow v Commissioner of Police [2009] QCA 84

Wang v Hur [2024] QCA 126

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Wood v The King [2022] QSC 216

The Office of the Director of Public Prosecutions for the respondent.

• [1] On 12 March 2025, the appellant was convicted, in his absence, in the Magistrates Court held in Mareeba, of disobeying the speed limit, and he was sentenced to a $1,000.00 fine. The appellant's application to reopen the proceeding was dismissed on 2 April 2025.
• [2] After an initial hearing, the appellant was granted leave to appeal against the decision of 2 April 2025. The appellant now appeals his conviction of 12 March 2025 and the dismissal of his application to reopen of 2 April 2025 because:

(a) The learned magistrate denied him an opportunity to be heard on 12 March 2025 by proceeding to hear and convict in his absence despite requesting an adjournment due to illness, supported by a medical certificate; and

(b) The learned magistrate pre-determined the application to reopen and again denied him an opportunity to be heard by refusing his application to reopen the case on 2 April 2025.

• [3] During the course of the appeal hearing, it became apparent that the Notice of Adjournment, which set the hearing date, failed to alert the appellant to the prospect that the hearing could proceed in his absence if he failed to appear. The respondent has properly conceded that the learned magistrate erred in exercising his discretion on 12 March 2025 by refusing the appellant's request to adjourn the hearing and proceeding to hear the matter under s 142A of the Justices Act 1886 (Qld).
• [4] The appeal was otherwise opposed, whereby the respondent argued that each event was conducted in the proper exercise of discretion, without bias.
• [5] On my review, in my respectful view, the learned magistrate erred in exercising his discretion on 12 March 2025 by refusing the appellant's request to adjourn the hearing, and proceeding to hear, convict and sentence the appellant in his absence, because he denied the appellant procedural fairness by proceeding without notice, having allowed extraneous or irrelevant matters to guide or affect him by inferring that that the appellant's absence was a ploy to avoid the hearing despite the medical certificate. Further, the learned magistrate erred on 2 April 2025 by exercising his discretion without taking into account the material consideration of proper notice, thereby denying the appellant procedural fairness in reopening the case.
• [6] Accordingly, I allow the appeal and remit the matter to the Magistrates Court for hearing according to law before a different magistrate.

• [7] The appellant appeals against in reliance on the grounds of appeal in the notice of appeal, which can be categorised as follows:

(a) The learned magistrate denied the appellant an opportunity to be heard on 12 March 2025 by proceeding to hear and convict the appellant in his absence despite his request to adjourn due to illness, supported by a medical certificate; and

(b) The learned magistrate denied the appellant an opportunity to be heard by holding to a pre-determined application to reopen and refusing his application to reopen the case on 2 April 2025.

• [8] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave.

1. To succeed, the appellant must establish some legal, factual or discretionary error.[1] Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.

• [10] The High Court held in House v The King_[2]_ that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice.[3]
2. The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[5] Its function is to consider each of the grounds of appeal, having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.[6]

Ground 1: Did the learned magistrate err in the exercise of discretion by refusing the appellant's request for adjournment and proceeding to convict and sentence him in his absence on 12 March 2025?

• [13] The appellant contends that the learned magistrate erred in failing to consider the medical certificate submitted in support of his application to adjourn the trial contrary to Laurent v Commissioner of Police [2015] QDC 160, and in depriving him of a fair and public hearing by proceeding in his absence under s 32 the Human Rights Act 2019 (Qld), and The Constitution 1900 (Cth).
• [14] The respondent argues that Laurent v Commissioner of Police [2015] QDC 160 was properly distinguished on the facts, and the learned magistrate properly exercised the discretion to refuse adjournment and accede to the prosecutor's application to proceed in the appellant's absence having regard to the prior correspondence received from the appellant to Court requesting adjournment and advice given (i.e.: that his personal attendance was required), the timing of the certificate, and the form of the certificate.
• [15] The appellant elected to contest the speeding ticket issued on 18 May 2024 when he was intercepted by a police officer after the speed-detection device fixed to the dashboard of the police car recorded his motorcycle travelling at 126kph in a 100kph zone.
• [16] The appellant entered a not-guilty plea on 2 September 2024 and maintained his intention to self-represent and contest the matter. The matter was case managed over the following four months and, on 13 January 2025, was set down for a contested hearing on 12 March 2025. A "Notice of Adjournment" in Form 20 was posted to the appellant informing him in respect of the charge that (including striking through):

"TAKE NOTICE that the hearing of the above *Charges I Applications has been adjourned, as follows:-

* Your personal attendance is required in this matter.

You have the right to appeal and be heard at such adjourned hearing.

* If you fail to appear on this date, the matter may be determined in your absence.

lf you fail to appear on the above date, a warrant may be issued for your arrest."

• [17] The striking through of "If you fail to appear on this date, the matter may be determined in your absence" became apparent during the hearing of this appeal, with the consequence that the respondent has properly conceding that learned magistrate erred in exercising his discretion on 12 March 2025 by refusing the appellant's request to adjourn the hearing, and proceeding to hear, under s 142A of the Justices Act 1886 (Qld). I will deal with this later.
• [18] The day before the hearing at 2:47 pm on 11 March 2015, the appellant emailed the court registry to request an adjournment of the trial due to late disclosure by the prosecution. He wrote:

I am writing to respectfully request an adjournment of tomorrow's court hearing. The prosecution has provided me with new evidence today, and I require additional time to review and prepare accordingly.

As per the Human Rights Act 2019 (Qld) - Right to a Fair Trial, I am entitled to adequate time to prepare, including receiving all relevant evidence in a timely manner. Given the short notice, I have been unable to consult my lawyer for the necessary advice, which further hinders my ability to adequately prepare.

For your reference, the case number for the hearing is MAG00123270/24.

I would greatly appreciate your understanding and consideration of this request.

• [19] The acting deputy registrar replied at 4:09 pm on 11 March 2025, advising the appellant that "You are required to appear in person tomorrow and the Magistrate will consider the application for an adjournment."
• [20] Then, at 8:15 am, on the day of the hearing, Wednesday, March 12, 2025, the appellant sent a further email to the registry attaching a medical certificate and advising that he could not attend the day's hearing due to gastrointestinal symptoms. He wrote:

I have experienced gastrointestinal symptoms since last night and can therefore not attend todays court hearing.

Attached is a medical certificate from my doctor.

• [21] The attached medical certificate, apparently obtained after a telehealth appointment with an interstate doctor, provided that "This patient has reported a medical condition and should refrain from work or scheduled commitments from 11.03.2025 to 13.03.2025 inclusive." The document is in a pro-forma style suitable for an employer, and identifies the doctor's name, address, and the doctor's provider and registration numbers.
• [22] The acting deputy registrar replied at 8:39 am that same day, writing that "You are required to attend Mareeba Magistrates Court this morning for your hearing. If you do not attend court this morning a warrant will issue."
• [23] To which the appellant replied, at 9:30 am that day,

I have a medical condition and therefore cannot attend. This is why I got a doctor's medical certificate and attached it to the email.

• [24] Unsurprisingly, the appellant did not appear at the hearing after his name was called twice. The learned magistrate then informed the police prosecutor that the appellant was asking for an adjournment and read the pertinent content of the trail of emails between the appellant and the registry, including that a warrant would issue if the appellant failed to appear.
• [25] Despite acknowledging late disclosure of an evidential certificate, the prosecutor opposed the adjournment on the grounds that it was "not relevant" since the relevant police officer would testify as to the use of the speed detection device, negating the need for the certificate. The prosecutor then urged the court to hear and determine the matter in the appellant's absence pursuant to s 142A of the Justices Act 1886 (Qld).
• [26] Section 142A of the Justices Act 1886 (Qld) empowers the court to proceed to hear and decide the case in the appellant's absence, where a notice of adjournment is given a reasonable time in advance, and he fails to appear at the appointed time and place. In doing so, upon being satisfied that: the allegations in the complaint or summons constitutes a simple offence or breach of duty, and reasonably sufficient particulars of the offence have been provided, the court can treat the alleged facts as proven (as if they had been established by sworn evidence) and determine the matter fully and effectively, exactly as if the appellant had appeared in person.
• [27] The learned magistrate granted leave for the prosecution to proceed accordingly. Having been satisfied of the requisite matters in this expedited process, the learned magistrate convicted and fined the appellant in his absence for these reasons:

"[The] Defendant's charged that on the 18th of May '24 he was the rider of a motorbike over the speed limit that applied, namely a hundred kilometres an hour. The matter was first mentioned 2nd September, a plea of guilty - not guilty entered. Adjourned 14 October and then adjourned again to the 4th of November. On that date, the defendant appeared by phone. The matter set down for summary hearing mention. Twenty-five November '24, the matter again mentioned, and finally before me, 16 December, the matter was adjourned to 13 January, noting a brief of evidence was received and explaining options and consequences to the defendant, including the loss of the benefit of a discount in the event of a conviction upon hearing.

When next mentioned, 13 January '25, plea of not guilty confirmed. The matter was given a hearing date, 12 March. By email, 11 March, the defendant gave notice of intention to apply for an adjournment. In response by email, the defendant was informed he was required to appear in person and the application would be considered. By email, 8.15 this morning, defendant reported he is unwell, gastrointestinal issues last night, unable to attend, medical certificate provided. On review of the file, email and medical certificate, I note a considerable delay in the matter already. No notice of challenge was on the file, although in an earlier mention he was advised of the consequences of a failure. The medical certificate issued by the doctor in Melbourne, suggesting a phone consultation, and merely notes "reported a medical condition", with no assessment on the merits, it seems; it generally appears for work purposes, as opposed to appearing in court.

In response, the defendant was informed by email, if he didn't attend, a warrant may issue for his arrest. He hasn't appeared this morning, and the application for an adjournment's opposed. The prosecution was ready to proceed. It seems to me that the conduct - it seems highly improbable or the expression, I think, is "glaringly improbable" that a defendant would make an application to adjourn, given notice that he is required to appear, and that night actually suffer gastrointestinal issue problems. It - I reject the suggestion that it's genuine and proceed on the basis that it's a ploy to avoid appearing today.

And on that basis the application to adjourn is opposed. I've heard the facts. This is a matter that has proceeded to a hearing. The ticketable offence which assumes payment, a plea of guilty, 696. In the circumstances, there's no benefit of an early plea. Convicted and fined a thousand dollars. Referred to SPER, and a conviction's recorded.

And on that basis the application to adjourn is opposed. I've heard the facts. This is a matter that has proceeded to a hearing. The ticketable offence which assumes 35 payment, a plea of guilty, 696. In the circumstances, there's no benefit of an early plea. Convicted and fined a thousand dollars. Referred to SPER, and a conviction's recorded."

• [28] In my respectful view, the learned magistrate denied the appellant procedural fairness and miscarried the exercise of his discretion by proceeding to hear and determine the matter in the appellant's absence without prior notice that the matter might so proceed. The learned magistrate was likely unaware of the Notice of Adjournment and did not consider that the appellant had been expressly disabused of any prospect of a hearing in his absence. Further, the learned magistrate misdirected himself by applying a wrong principle: instead of determining the application for adjournment on proper grounds, he inferentially assessed the appellant's adjournment request as lacking credibility.
• [29] The common law recognises a fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person's rights, interests or legitimate expectations.[7] A reasonable opportunity to be heard "requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached."[8]
• [30] In Kioa v West,[9] Mason J said:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."

• [31] Here, the appellant was expressly disavowed of the prospect of a hearing proceeding in his absence if he failed to appear. The Notice of Adjournment expressly excluded that prospect by striking through the option "If you fail to appear on this date, the matter may be determined in your absence", leaving the only consequence of "If you fail to appear on the above date, a warrant may be issued for your arrest." And this was affirmed by the acting deputy registrar's email of 8:39 am that day, by asserting that "If you do not attend court this morning, a warrant will issue." Whilst the court had power to proceed under s 142A of the Act, that power ought not to have been exercised when notice was provided to the contrary. Having failed to take into account the relevant considerations, rendered a miscarriage in the exercise of his discretion to proceed to hear and determine the matter in the appellant's absence under s 142A of the Act.
• [32] In my respectful view, this resulted in a denial of the appellant's procedural fairness.
• [33] Instead, it seems to me that the learned magistrate allowed himself to be influenced by an extraneous and irrelevant consideration prompted by the series of adjournment requests to conclude that the appellant's absence was a deliberate ploy to avoid the hearing because it was "glaringly improbable" that a defendant would make an application to adjourn, receive notice that he was required to appear, and then, on the very night before the hearing, actually suffer gastrointestinal problems.
• [34] It seems to me that no submissions were made, nor consideration given to, any matters relevant to the exercise of the discretion to allow an adjournment, including whether there were sufficient reasons and supporting evidence, any prejudice to other parties, the timeliness of the application, fairness to a defendant and the interests of justice. It is not clear to me why his Honour came to assess the appellant's request for adjournment as not genuine and engaging in a ploy to avoid appearing using a test of "highly improbable or the expression, I think, is "glaringly improbable" that a defendant would make an application to adjourn, given notice that he is required to appear, and that night actually suffer gastrointestinal problems.

1. In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[10]

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

• [36] Similarly, in Fox v Percy,[11] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[12] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, but the court went on to recognise that an appellate court might interfere even though the facts fall short of being "incontrovertible", where, for example, the decision is "glaringly improbable" or contrary to "compelling inferences". Gleeson CJ, Gummow J and Kirby J said:

"[29] ... In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.

[30] It is true, ... that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses." (references omitted)

• [37] It is tolerably clear that the appellant had a legitimate complaint of dealing with late disclosure of an evidentiary certificate relevant to the proceeding. Whilst it might be a rare coincidence that, after some correspondence, the appellant made a second request for an adjournment, citing gastrointestinal symptoms in the wake of an earlier adjournment request for late disclosure, all of the circumstances established by the evidence must be considered and weighed. In particular, even though the medical certificate lacked some detail and fell short of being incontrovertible, its provenance and the opinion expressed in it remained unimpeached, uncontested, and inconsistent with the inferential credit findings as to the appellant's improper motive to avoid the hearing.[13] In those circumstances, it seems to me that it remained a reasonable and rational possibility that the appellant suffered from a gastrointestinal condition.
• [38] In any event, it is unnecessary to resolve the issue based on the appellant's credit, since I think it was a fatal flaw to deny the appellant procedural fairness and a miscarriage of justice in the exercise of his discretion to proceed to hear and determine the matter in the appellant's absence under s 142A of the Act without notice.

Ground 2: Did the learned magistrate err in the exercise of the discretion by refusing the appellant's application to reopen on 2 April 2025?

• [39] The appellant also argues that the learned magistrate pre-determined the application to reopen and again denied him an opportunity to be heard by refusing his application to reopen the case on 2 April 2025. The respondent maintains that he properly exercised his discretion impartially and in the absence of any new evidence.
• [40] It is often difficult for judicial officers to ensure the integrity of proceedings, which involve a litigant appearing in person. The High Court in Neil v Nott[14] said:

"A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy".

• [41] This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction. In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[15]
• [42] The learned magistrate proceeded on the basis that the appellant had no new evidence, despite the prior unsuccessful adjournment attempt, which made the medical certificate suspicious in an extremely unlikely coincidence, and he distinguished Laurent v Commissioner of Police because there was no prior "try-on" in that case. He also found that the Human Rights Act 2019 provides no separate remedy.[16] But still the court was not drawn to the fatal flaw, that is, that the court had in both the Notice of Adjournment and in later email correspondence, expressly disavowed the appellant of the prospect of proceeding in his absence at first instance.
• [43] During the course of the hearing, the learned magistrate continued to focus on the appellant's credit by refusing him the opportunity to make good his claim with oral evidence in the application, with this exchange:

"DEFENDANT: I understand that, your Honour and I understand that it is quite unlikely that it happens, but I did feel extremely unwell and I didn't feel fit to attend the court on - on the day of the hearing.

HIS HONOUR: [indistinct] See, normally what I would do is put you in the witness box and put you on oath. But then I'd have to warn you about privilege against self-incrimination. Because what the prosecution would do is cross-examine you about your movements that day, your registration number on any vehicles.

HIS HONOUR: And then they would go out and see, investigate, to see whether or not you were driving that day, etcetera, etcetera. So I'm not going to go through that whole charade to then put you, expose you to the risk of contempt of - perjury, contempt of court."

• [44] In my respectful view, the learned magistrate misdirected himself by allowing extraneous or irrelevant matters to continue to guide or affect him by inferring that the appellant engaged in a ploy to avoid the hearing despite the medical certificate. In doing so, the learned magistrate erred on 2 April 2025 by exercising his discretion without taking into account the material consideration of proper notice, thereby denying the appellant procedural fairness in reopening the case.

• [45] Accordingly, I make the following orders:

(a) Appeal allowed.

(b) The conviction, sentence and orders made on 12 March 2025, and the orders made on 2 April 2025 are set aside.

(c) The proceeding is remitted to the Magistrates Court Mareeba Registry for rehearing before a different magistrate in due course.

1. [1] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [22] - [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5.

1. [3] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176-178; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 517-519.

1. [5] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47]; Wang v Hur [2024] QCA 126.

[6] White v Commissioner of Police [2014] QCA 121 at [5]- [8].

[7] Kioa v West (1985) 159 CLR 550, 582.

[8] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [35] per Flick J cited in SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ.

[9] Kioa v West (1985) 159 CLR 550, 582.

1. [10] Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; 479.

[11] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [26]-[30].

[12] For example, Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479.

[13] Cf. Laurent v Commissioner of Police [2015) QDC 160.

[14] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[15] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, [481] per McHugh J.

[16] Wood v The King [2022] QSC 216.