Hickey v Commissioner of Police [2023] QDC 181- LAWS3015

Case Note: Hickey v Commissioner of Police [2023] QDC 181

1. Material Fact

On January 25, 2018, the Richlands Magistrates Court found Simon John Hickey guilty of unlawful stalking. After serving seven days, he received a sentence of three years in prison with a five-year suspension. The court issued a restraining order that same day, prohibiting Hickey from meeting the complainant, getting in touch with her, or publishing anything about her online. The duration of this restraining order was scheduled to end on January 24, 2023.

Later that year, Hickey filed an appeal against the initial restraining order and other relevant rulings on November 9, 2018. However, the court's limits remained in effect after his appeal was denied.

Hickey violated the restraining order by publishing abusive and disparaging content about the complainant online between March 19, 2019, and April 1, 2019.

On June 12, 2019, Hickey was found guilty of violating the injunction and given a four-month prison term with immediate release.Hickey attempted to overturn the original restraining order and related rulings by filing a second appeal on April 24, 2020, but the court dismissed this as well, reaffirming the limits as required to protect the complainant.

Hickey violated the restraining order once more on September 1, 2020, when he published a book on Amazon that contained 29 mentions of the complainant being criticised both personally and professionally. This second violation resulted in another conviction on November 16, 2020, indicating a pattern of noncompliance with the order. As the restraining order was about to expire, the Commissioner of Police filed an application on January 16, 2023, to extend the order by five years; however, the hearing was postponed due to scheduling, and took place on February 24, 2023. The Magistrates Court granted an extension of the restraining order.

Hickey then filed an appeal against the restraining order's renewal in the District Court on August 25, 2023. He claimed that the extension infringed upon his human rights and jurisdiction. The District Court, however, denied his appeal, concluding that the extension was appropriate, required, and legal in order to protect the complaint from more harm.

2. Relevant Issues for Determination

1. Under section 359F(7) of the Criminal Code 1899 (Qld) If the application was submitted before the restraining order's expiration date, does the court have the authority to extend it after it has expire
2. Under section 21 of the Human Rights Act 2019 (Qld), does Hickey's right to free speech get in the way of the restraining order's extension?
3. Under section 359F of the Criminal Code 1899 (Qld), can an appeal from a magistrate's decision to issue a restraining order be heard by the District Cour

   3. Decision Reached by the Judge and Analysis of Their Reasoning

Simon John Hickey's appeal against the Magistrates Court's decision to prolong a restraining order given under section 359F of the Criminal Code 1899 (Qld) was dismissed by Judge Porter KC DCJ in Hickey v. Commissioner of Police [2023] QDC 181. The District Court's inability to hear the appeal and the appropriateness of prolonging the restraining order considering the Human Rights Act 2019 (Qld) were the two main areas of consideration that were brought to light by the ruling. This case serves as an example of how Queensland's legal system carefully strikes a balance between procedural justice, statutory interpretation, and human rights standards.

The Courts Judgment: Lack of Jurisdiction

Whether the District Court had the authority to consider Hickey's appeal against the Magistrates Court's ruling was the main question the ruling addressed. According to Section 222 of the Justices Act 1886 (Qld), the District Court may hear appeals of orders "made by justices in a summary way on a complaint for an offence or breach of duty." Restraining orders granted under section 359F of the Criminal Code are civil remedies that are not covered by section 222 appeals, according to Judge Porter KC DCJ. Restraining orders serve as preventative measures to limit continuous harm or threats, even if they are frequently granted in the context of criminal complaints. This makes them separate from the criminal proceedings themselves.

The ruling made clear that restraining orders are protective civil measures intended to reduce the likelihood of harassment, intimidation, or injury rather than being used to resolve criminal accusations. Therefore, the Magistrates Court did not decide to prolong the order "on a complaint for an offence or breach of duty." Hickey's appeal was essentially denied due to this procedural distinction, which prevented section 222 from being used.

In addition, Judge Porter considered whether Hickey's appeal may be filed under section 45 of the Magistrates Courts Act 1921 (Qld), which permits appeals in certain civil affairs. Section 45, however, only covers "actions," which the court found to be strictly defined in the statute. Despite their protective intent, restraining orders are not the same as adversarial litigation or the definition of a party's civil rights and obligations. As a result, Hickey's appeal lacks any legislative basis because they do not meet the requirements for an "action" under section 45. The argument made by Judge Porter supported the idea that the legislators wanted restraining orders to be strong, enforceable, and procedurally different from appeals that could be made under more conventional civil or criminal frameworks.

Compatibility with the Human Rights Act 2019 (Qld)

Judge Porter KC DCJ's second substantive issue concerned Hickey's argument that the restraining order infringed upon his right to freedom of expression under section 21 of the Human Rights Act 2019 (Qld), as the order's ban on publishing information about the complainant was an unreasonable limitation on his capacity to obtain, receive, and disseminate information and ideas.

Judge Porter rejected this claim, highlighting how the Human Rights Act protects rights that are qualified. Limitations on rights that are reasonable, essential, and clearly justified in a free and democratic society are permitted by Section 13 of the Act. In Hickey's case, the court determined that the restraining order placed a reasonable and precisely targeted restriction on his right to free speech, focussing on actions that endangered the complainant's safety and dignity.

Hickey had previously violated the original restraining order by disseminating insulting and intimidating content about the complainant both online and in print, according to the justification. Section 25 of the Human Rights Act protects the complainant's rights to privacy and dignity, and these violations showed a persistent pattern of behaviour that is incompatible with those rights. The renewal of the restraining order was therefore required to reduce the dangers that Hickey's actions posed and guarantee that the complainant would not be harmed further.

Judge Porter further underlined that the restraining order's limitations were precise, restricting solely Hickey's capacity to disseminate content that was exclusively about the complainant. He was still free to voice his thoughts, participate in public debate, and make comments on a variety of other subjects. This well-balanced strategy successfully protected the complainant's privacy and dignity while ensuring that the restraining order did not place an excessive burden on Hickey's rights under section 21.

Judicial Capacity and Human Rights Compatibility

Hickey further argued that when the Magistrates Court extended the restraining order, it was not acting in accordance with the Human Rights Act. To answer this point, Judge Porter KC DCJ clarified the Act's section 58(1), which mandates that "public entities" behave in a way that respects human rights. The term of public entities expressly excludes courts and tribunals functioning in a judicial capacity under section 9(4)(b). Section 58's procedural compatibility requirements do not apply to court decisions, including the granting of restraining orders.

Despite the fact that the Magistrates Court was not legally required to take the Human Rights Act into account when prolonging the restraining order, Judge Porter upheld the decision's consistency with the Act's fundamental proportionality and justice principles. Given the obvious threats created by Hickey's actions, the restraining order's extension was a fair and reasonable reaction that complemented the Human Rights Act's overarching goals of advancing security, equality, and dignity.

Key Implications of the Judgment

According to Judge Porter KC DCJ's ruling in Hickey v. Commissioner of Police [2023] QDC 181, courts must strike a balance between protecting vulnerable people from harm and upholding individual rights. Even if the right to free speech is vital, it does not grant unrestricted permission to act in ways that clearly hurt other people. Section 13 of the Human Rights Act's proportionality assessment emphasises the court's responsibility to guarantee that the rights of all parties are respected and that protective measures, including restraining orders, are kept strictly restricted to their intended use.

Restraining orders are essential instruments for reducing dangers before they become more serious, and the ruling further supports their preventative role. By maintaining the prolongation of the restraining order, the court upheld the fundamental idea that human rights must be used sensibly and within the parameters of social norms that put people's safety and dignity first.
The ruling also demonstrates the procedural differences between criminal and civil remedies under Queensland law. Restraining orders are separate procedures controlled by civil rules, even though they are frequently connected to criminal accusations. According to Judge Porter KC DCJ, this distinction guarantees that restraining orders are upheld and prolonged without needless formalities or jurisdictional uncertainties