Morris v Commissioner of Police [2025] QDC 111

District Court of Queensland|2025-08-15

Office of the Director of Public Prosecutions for the respondent.

[1] The appellant appealed an order restraining his behaviour in relation to a protected person. The notice of appeal pleaded two grounds, that were in essence that the order should not have been made, or not have been made in the terms it was.
[2] The appellant sought leave to add further grounds of appeal at the hearing. Those grounds, as with the grounds formally plead, were a mixture of factual contention and submission, but again were distilled to the same contentions.
[3] The respondent opposed the appeal.
[4] At the hearing, the appellant informed this court of his continued concerns regarding the investigation leading to his charging with the offence of unlawful stalking, and the destruction of evidence which would "demonstrate that his judgment was impaired at the time of the alleged offending". The appellant sought leave to add the misconduct as a relevant ground of appeal. Leave was not granted. The appellant accepted that the proposed ground sought to demonstrate that he should not have been convicted for the offence of unlawful stalking. The appellant was not convicted for the alleged offence.
[5] The appeal was dismissed by this court at the hearing on 3 February 2025. Brief reasons for the decision were provided. The following is now a more comprehensive explanation of the decision.

[6] On 14 October 2024, the appellant was before the Warwick Magistrates Court in relation to a charge of unlawful stalking. The appellant was legally represented. The appellant's legal representative informed the magistrate that the charge would be discontinued, and the appellant would consent to a restraining order pursuant to s 359F of the Criminal Code (Qld).
[7] The submissions that followed that intimation, evidenced the appellant's discord with the broad nature of a proposed condition that he not "follow or approach" the protected person. Proceedings were briefly adjourned and upon resumption the parties informed the magistrate that an agreement had been reached.
[8] A draft order was presented to the court, and the prosecution for the charge of unlawful stalking discontinued.
[9] As the magistrate delivered her judgment, the appellant personally raised concerns about the terms of the order. The appellant contended that contact should be allowed with the protected person through his legal representatives. The contention had not been raised in the preceding submissions in the hearing. The magistrate considered and dismissed the contention, and the order was made in terms of the draft presented.
[10] The terms of the restraining order relevantly provided:

"THE ORDER OF THE COURT IS THAT:

The defendant is restrained from attempting to locate the protected person; and

The defendant is restrained from contacting or having someone else contact the protected person either directly or indirectly; and

The defendant is restrained from following or approaching to within 30 meters of the protected person's usual place of residence and workplace as known to the defendant from time to time; and

The defendant is restrained from using the internet (including social networking sites) to publish pictures of or make comments concerning the protected person."

[11] The terms of the order expire on 13 October 2025.
[12] On 15 October 2024, the appellant filed an application for a reopening of the order before the magistrate. The application was refused.
[13] On 1 November 2024, the appellant filed his notice of appeal to this court.

[14] The appellant informed the court that he had been denied procedural justice in the proceedings. The appellant assisted the court in understanding the "history" of proceedings before the conclusion of the charge of unlawful stalking. The appellant identified repeated occasions in which he had attempted to present his own "notices of motion" to have the charge dismissed. The "history" that was helpfully provided by the appellant revealed his continued concerns with the quality of his representation through the proceedings for the alleged offence and, at times, his expressed desire to present his own case in the proceeding.
[15] These contentions were all directed to achieve the outcome that did occur. The appellant was not convicted of the offence.
[16] The appellant submitted that the order restraining his behaviour toward the protected person was unnecessary, as the appellant had moved interstate and would be unlikely to have any contact with the protected person. The appellant submitted, "in any event" he should have been permitted to contact the protected person through his legal representative and the order should have permitted this.
[17] The appellant was unaware of the authorities presented by the respondent, which were submitted to inform this court that it did not have relevant jurisdiction to hear the appeal.[1]
[18] The respondent submitted that this court did not have any jurisdiction to hear an appeal from an order of the magistrate granted pursuant to pursuant to s359F of the Criminal Code (Qld). The respondent submitted that there was no identified error made by the magistrate in the exercise of discretion, even if there were jurisdiction to hear the appeal.

[19] The appeal was commenced pursuant to s 222(1) of the Justices Act 1886 (Qld). The section provides:

"If a person feels aggrieved as a complainant, defendant or otherwise by an order made by justices or a justice in a summary way of a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge"

[20] The grant of the restraining order is commenced by application.[2] A condition precedent to the application is that there was a hearing before the court of a charge against a person for unlawful stalking, intimidation, harassment or abuse.[3] The hearing upon the application is a "restraining order proceeding"[4] and the order may be made if the court considers it desirable to do so after considering relevant material, not restricted to any evidence given at the hearing of the charge.[5]
[21] Relief is provided to vary or revoke the order made, upon application.[6]
[22] The Justices Act gives a right to appeal not from an order but only from "any order made...for an offence". It refers to an order "disposing of the complaint itself" and does not include an order upon an application made during the course of the proceedings instituted by complaint.[7]
[23] The application for the restraining order did not concern an order disposing of the complaint itself. It was an exercise of the relevant court's civil jurisdiction rather than its criminal jurisdiction.[8] The appellant has no right to appeal under s 222(1) of the Justices Act.
[24] The appellant was not legally represented. The court considered whether there was an alternate mechanism permitting jurisdiction to dispose of the appeal pursuant to the Magistrates Court Act.[9] His Honour Judge Porter KC engaged in the same consideration in Hickey v Commissioner of Police.[10] The reasoning exposed in that judgment is sound and adopted. That Act permits appeals to this court for certain types of action. The proceedings for a restraining order do not fit the definition of "action" as identified in that Act, nor do they meet the specific criteria outlined in s 45(1) of that Act. The appeal would fail, even if the appellant had commenced his appeal pursuant to the Magistrates Court Act.

[25] The orders are as follows:
1. The appeal is dismissed.
2. No order as to costs.

[1] The appeal had been lodged pursuant to s. 222(1) of the Justices Act 1886 (Qld).

[2] s 359F(3) of the Criminal Code (Qld).

[3] s 359F(1) of the Criminal Code (Qld).

[4] s 359F(6) of the Criminal Code (Qld).

[6] s 359F(9) of the Criminal Code (Qld).

[7] Schneider v Curtis [1967] Qd R 300 at 304.

[8] R v Johnston [2008] QCA 291 at [8].

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)