14 Dec

Recording of Conviction – DV

MB v Queensland Police Service [2020] QDC 325 is an interesting decision that deals with the issue of whether or not the Defendant should be allowed to adduce fresh evidence in his DV appeal. The Magistrate at first instance, recorded a conviction. On appeal, in respect of the recorded DV conviction, the Applicant sought to adduce new evidence from his employer.

The DV offending was particularised as being between 27 April 2020 and 29 August 2020. The appellant was sentenced to two years’ probation and ordered to pay compensation in the sum of $611.70. Convictions were recorded on all counts. He had served 21 days in pre-sentence custody between 17 July 2020 and 27 July 2020 and thereafter between 29 August 2020 and 7 September 2020. The Magistrate took this custody into account but did not declare it.

DV Conviction Submissions

At Sentence the defendant was represented by counsel and solicitors. Detailed written submissions were relied on. The Defence provided three references from colleagues in PNG, with whom the Applicant had worked. Relevantly, it was submitted that if a DV conviction was recorded, he would need to disclose his criminal history and there would be some effect on his ability to work in PNG.

With respect to the recording of a conviction, it was submitted that the conduct represented a low point of the appellant’s life. It was also submitted that there would be some impact on his employment in that his client had to obtain a business visa each time to go to PNG. There would be some effect if a conviction was recorded.

Judge Smith DCJA [36]

Submissions on New Evidence

Section 223(2) of the Justices Act allows the court to give leave to adduce fresh additional or substituted evidence if special grounds are found to justify such leave. The Defence submitted, that because of the urgency for the sentence being resolved (he was in custody), the material was not obtained for the sentence below. In determining whether fresh evidence should be admitted, a number of questions are relevant:

  • Whether the evidence relied on could, with reasonable diligence, have been produced by the appellant at trial;
  • Whether the evidence is apparently credible; and
  • Whether the evidence, if believed, might reasonably have led the tribunal of fact to a different verdict.

The Decision

Judge Smith found that the material was easily discoverable and could have been provided. Alternatively, an adjournment could have been sought to provide the material ahead of the sentence.

The Court importantly held that even if the material from PNG had been before the Court, it was unlikely that the Sentence would have been different. His Honour found that the domestic violence allegations were an aggravating feature under s 9(10A) of the Penalties and Sentences Act 1991 (Qld). Additionally there were other factors under s 9(2) of the Penalties and Sentences Act which aggravated the matter – the emotional harm done to the victims and the damage, loss and injury caused.

When one considers s 12 of the Penalties and Sentences Act, the seriousness of the offences in combination outweighed any economic effect or wellbeing effect of the recording of convictions.

Judge Smith DCJA [57]

MB v Queensland Police Service [2020] QDC 325 is an important reminder to ensure that there is sufficient evidence before the Court to support a submission that no conviction should be recorded pursuant to section 12 of the Penalties and Sentences Act.


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