MZR v Commissioner of Police [2025] QDC 132

"[3] Section 223 of the [Justices Act] provides that an appeal under s.222 is by way of rehearing on the evidence given in the proceeding in the Magistrates Court....The nature of the review task undertaken by the District Court judge on such an appeal is settled. See McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612 at [47]. What is involved in the District Court judge conducting a real review of the evidence and making up the judge's own mind about the case was set out by Sofronoff P (with whom Gotterson and Morrison JJA agreed) in Forrest v Commissioner of Police [2017] QCA 132 at p.5:

'Consequently the learned District Court judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.'"

• [5] The appellant's outline[2] helpfully summarises the background as follows:-

"2. On 27 June 2023 the complainant [Ms MZR] contacted police and complained that the appellant had contravened the protection order naming him as the respondent. She provided the police with an email sent from the appellant's email address (forwarding a Paypal email) on 14 August 2022:-

Please confirm you are no longer using my email address to access Paypal or any other accounts using my information.

Please close down the account or change the information into my name so I can access as it seems it's still being used with my email address.

Please do this as soon as possible. Thanks [Mr MZR].

1. The complainant responded to the email that same day, 14 August 2022. The relevant condition and exceptions in the protection order were as follows:-[4]

'(5) The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved:

except when appearing personally before a court or tribunal.

except when attending an agreed conference, counselling or mediation session.

except when having contact with a child or children as set out in writing between the parties or in compliance with an order of a court.'

1. Ms AHR gave evidence at the trial. Ms AHR was in a relationship with the appellant at the time of the offending email. She gave evidence that she drafted the email, and other emails, with the appellant because he was dyslexic, and that she would then give the phone to the appellant to check and send the emails.[5]

(a) she would not press 'send' in relation to the emails she drafted;[6]

(b) she recalled the conversation about the email from Paypal that she noticed in the appellant's in box and that she helped write the email.[7]

(c) she agreed that the appellant was unhappy with the offending email being sent, but denied that he was unhappy with her specifically;[8]

(d) she agreed that they went to couples counselling with 'Mel' and discussed the offending email, but denied that the appellant was upset with her for sending the email.[9]

1. The appellant's case at trial was that Ms AHR had sent the email without his knowledge or authorisation, and that when he became aware of this, he was upset and they discussed the issue at couples counselling. However, the appellant did not give or call evidence at the trial."[10]

• [6] The respondent accepts the recitation of the critical aspects of the trial excerpted above from the appellant's outline of submissions, and adds the following:-[11]

"(a) In evidence in chief, Ms AHR said that the background to her assisting the appellant in writing the email in question was that

'I had been asked to write several emails; whether I would write them and then copy and paste them and send them or I'd help write them through email and send them through Facebook Messenger or emails, and that was just another one that I helped to write'.[12]

She estimated that there had been about 30 emails that she had assisted him with.

(b) Her use of the word 'send' in the passage above can, in the context of what she said in cross-examination, be understood to mean that she would send the emails that she had drafted back to the appellant for him to send onto the eventual recipient, rather than send the email to the contended eventual [recipient] herself.[13]

(c) In cross-examination, Ms AHR agreed with the proposition that she told the appellant that she would 'take responsibility for the email'.[14]

(d) In re-examination, Ms AHR said she told the appellant that she would take responsibility for sending the email because she 'felt bad for the situation'.[15]

(e) In re-examination, Ms AHR agreed that she said something to the counsellor about her claiming responsibility for the email."[16]

• [7] On this appeal, the appellant seeks leave to adduce and rely on evidence not admitted during the proceedings in the Magistrates Court on 24 June 2024 including:-

"(a) that prior to the hearing, the appellant made it clear to his solicitor advocate that he was concerned about a conviction being recorded because it would have a detrimental impact on him. Specifically, that the recording of a conviction would prevent him renewing his visa to travel to China, which he is required to do for work.

(b) that the appellant had raised with his solicitor advocate that Ms Meleissa Myrdycz, a family therapist could give evidence that in a counselling session following the incident, Ms AHR made a statement to her that she had written and sent the offending email without the appellant's consent.

(c) that the solicitor advocate had indicated that he would 'subpoena' the therapist, Ms Myrdycz.

(d) that Ms Myrdycz would have given evidence that at a joint appointment in November 2022, Ms AHR confessed that they were not in a good place because she had replied to an email sent to the appellant from his ex-wife. The appellant was very upset stating that his ex-wife breaches him all the time e.g. holding an umbrella over her head at a football game when it started raining to protect her and he didn't want any further breaches. Ms AHR profusely apologised saying she sent this email without the appellant's knowledge or consent and that should his ex-wife try to breach him, Ms AHR would confirm that she sent the email without his knowledge and would take full responsibility for sending the email."[17]

• [8] The appellant seeks leave to adduce "fresh, additional or substituted evidence (new evidence)" pursuant to Justices Act s. 223(2) by seeking to persuade the court that "there are special grounds for giving leave".
• [9] The special leave is sought in respect of the affidavit of the appellant sworn 1 October 2024,[18] and the Statutory Declaration of Meleissa Baxter (née Myrdycz) dated 3 October 2024.[19]
• [10] In order to consider whether that leave should be granted, it is also necessary to consider the affidavit of Rowan King (the appellant's solicitor advocate at the Magistrates Court trial) sworn 29 January 2025.[20]
• [11] The appellant's affidavit identifies that his instructions (given in the conference with his solicitor Mr King) on 26 April 2024 were that he "didn't write the email or send the email which was said to have constituted the breach of the protection order" and that he "...had witnesses who could attest to this".[21]
• [12] The appellant's affidavit indicates that he advised Mr King "...that Meleissa Myrdycz [a counsellor that the appellant and Ms AHR attended] would give evidence that Ms AHR made an admission to her that she had written and sent the email without [the appellant's] consent or knowledge in a counselling session following the incident."[22]
• [13] The appellant states further that he gave Mr King instructions that on 14 August 2022 while watching a football game with Ms AHR "...I wasn't aware that she'd gone through my emails and written four emails in total to my ex-wife Ms MZR, three being in relation to the children and then the PayPal one. I wasn't aware that [Ms MZR] had responded to the PayPal email until I was interviewed by the police."[23]
• [14] In her Statutory Declaration, Ms Baxter notes that during the relationship education therapy that she conducted with the appellant and Ms AHR, Ms AHR "...stated she would reply to emails for [the appellant] due to his dyslexia. [Ms AHR] explained she would draft the emails and send them to his ex to help him."[24]
• [15] Further, Ms Baxter states "At a joint appointment in November 2022, [Ms AHR] confessed they were not in a good place because she had replied to an email sent to [the appellant] from his ex-wife...[Ms AHR] profusely apologised saying she sent this email without [the appellant's] knowledge or consent and that should his ex-wife try to breach him, [Ms AHR] would confirm that she sent the email without [the appellant's] knowledge and would take full responsibility for sending the email." [25]
• [16] In the context of that material, the appellant's counsel Mr Jackson submits that the cross-examination by the solicitor advocate appearing for the appellant, was limited to these propositions - that the appellant was "unhappy with [Ms AHR] that the email had been sent", which she denied;[26] that "... [the appellant] was upset that [Ms AHR] had sent the email" to which she responded "No, not upset with me"; and then the following exchange which occurred in cross-examination:

"And he [the appellant] was upset that the email had been sent and was going to, potentially, breach his protection order? --- Yes

And I suggest that the reason he was upset was because he was suggesting that you had sent the email? --- No"[27]

• [17] The nub of the appellant's submission in respect to the new ground of appeal[28] is that the solicitor advocate failed as a matter of law to properly put the appellant's case to Ms AHR in accordance with the rule in Browne v Dunn,[29] in that the solicitor advocate did not expressly put in cross-examination to Ms AHR that:

(a) she sent the email without the appellant's knowledge and consent; and

(b) Ms AHR told the counsellor that she sent it without the appellant's knowledge and consent.

• [18] Mr Jackson further submits that it is incorrect for the solicitor advocate, Mr King, to state (as he has in his affidavit at [37]) that the appellant's "version was put to [the witnesses who were cross-examined]".[30]
• [19] It is clear that the affidavit of the appellant[31] and the Statutory Declaration of Meleissa Baxter[32] (the counsellor upon whom the appellant and Ms AHR attended) are not fresh evidence, but it is "new evidence" and as Cash DCJ stated in NNRM v The Commissioner of Police & Anor [2024] QDC 64 "...new evidence will only be received where it demonstrates there has been a miscarriage of justice."[33] As Cash DCJ stated, it will "usually be necessary for the party [appealing] to show that the evidence compels the conclusion that the decision at first instance was wrong."[34]
• [20] I note that the respondent acknowledges that the trial magistrate's assessment of Ms AHR credibility and reliability was critical to the outcome of the trial.[35]
• [21] Mr Byrne, who appears for the respondent, submits that the cross-examination of Ms AHR on the two critical issues, namely that she had drafted the email and sent it without the appellant's knowledge (contrary to her own evidence that she had drafted it and had handed the phone to the appellant who sent the email); and her acknowledgement that she had said, on an earlier occasion, that she would take responsibility for the commission of the offence, were both sufficiently ventilated in the course of her evidence.[36]
• [22] However, I am persuaded that the failure to put squarely to Ms AHR that she had sent the relevant email without the appellant's knowledge and consent and had then told Ms Baxter (née Myrdycz) that she sent that email without the appellant's knowledge and consent, meant that there was a failure to comply with the rule in Browne v Dunn. If at trial Ms AHR denied those explicit propositions, the appellant would then be able to call Ms Baxter to give evidence about the relevant conversation, as evidence of a prior inconsistent statement by Ms AHR.

• [23] As the trial was actually litigated, the learned acting magistrate was not given an opportunity to assess the credibility of the denials by Ms AHR in respect of her responsibility for sending the relevant email without the appellant's knowledge or approval. That was undoubtedly the critical issue in the trial, and the assessment of Ms AHR's credit in respect of her evidence about that issue could only be conducted appropriately and fairly if the appellant's instructions were put squarely to Ms AHR, and, if denied, evidence called from Ms Baxter about the content of the relevant conversation with Ms AHR.
• [24] It follows then that the appellant has suffered a miscarriage of justice, having been denied a genuine prospect of acquittal, given the conduct of the trial by the appellant's then solicitor advocate.
• [25] As identified, this is a legal error[37] which would permit the appeal to be granted and give rise to an order for a re-trial so that a credit assessment could be made by a trial magistrate with the benefit of the witness, Ms AHR, being given the opportunity to properly respond to the relevant propositions (that she had sent the offending email without the appellant's knowledge and consent, and had told Ms Baxter that she sent it without his knowledge and consent), and if necessary, enable Ms Baxter to be called in evidence to prove a prior inconsistent statement by Ms AHR.
• [26] Given my conclusions in respect of the first ground of appeal, it becomes unnecessary to consider the remaining grounds of appeal.
• [27] It follows that pursuant to s 223(2) the Justices Act, the appellant should be given leave to adduce the new or additional evidence contained in the affidavit of the appellant[38] and the Statutory Declaration of Meleissa Baxter (née Myrdycz) declared 3 October 2024 and (as a matter of fairness to the respondent) leave should also be granted to adduce the evidence Rowan King, solicitor advocate for the appellant, by way of an affidavit sworn 29 January 2025.[39]

• [28] I am not satisfied that the appellant's case was squarely put to Ms AHR, as identified above in these reasons, and accordingly I am persuaded that there has been a miscarriage of justice, there is a legal error that has been demonstrated, and the appeal should be granted.

• [29] I make the following orders:
  1. Leave granted to adduce new evidence in the appellant's affidavit sworn 1 October, 2024 (Appeal Ex. 4), in the Statutory Declaration of Meleissa Baxter (née Myrdycz) declared 3 October 2024, and the affidavit of Rowan King sworn 29 January, 2025.
  2. Appeal granted.
  3. Set aside the conviction for contravention of the domestic violence order, aggravated offence for which the appellant was convicted and sentenced to a $300 fine on 24 June 2024 and order that the matter be remitted to the Magistrates Court at Caloundra for retrial before a different Magistrate.

[3] Trial Ex. 2; Trial T1-10.

[6] Trial T1 - 29, ll 3-8; T1 - 30, ll 15-16.

[13] Trial T1 - 28, l 40, T1 - 29, l 1.

[17] Appeal Ex. 1, [7](a) - (d). For clarity, Ms Myrdycz is also known by her married surname of Baxter.

[28] "The solicitor advocate erred because the solicitor advocate failed to put to Ms AHR that she sent the email without his knowledge or consent contrary to the appellant's instructions".

[33] NNRM v Commissioner of Police & Anor [2024] QDC 64 [6]; R v Hodges [2018] QCA 92; [2019] 1 Qd R 172, [21].

[34] NNRM v Commissioner of Police & Anor [2024] QDC 64.

[37] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, [4].