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Burke v Commissioner of Police

 

[2019] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

Burke v Commissioner of Police [2019] QCA 158

PARTIES:

BURKE, Dominic Michael

(applicant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

CA No 271 of 2018

DC No 20 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Toowoomba – Unreported, 11 September 2018 (McGinness DCJ)

DELIVERED ON:

20 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2019

JUDGES:

Sofronoff P and Morrison JA and Davis J

ORDER:

The application for an extension of time within which to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was convicted of one charge of failure to give a breath specimen, one charge of obstructing police and one charge of public nuisance – where the applicant has exercised his right to appeal to the District Court in respect of all three convictions – where the appeals of two of the convictions were dismissed but the appeal against the charge of police obstruction was allowed – where the applicant has applied for an extension of time in which to appeal – where the application for extension was filed four and a-half weeks after the expiry of the time within which such an application for leave to appeal should have been made – where the applicant’s sole ground of appeal was stated as “getting legal advice” – where the applicant nominated only the conviction in respect of public nuisance, seeking to appeal on the ground that “it was clearly an unlawful arrest” – where the applicant’s outline signified his desire to also appeal against the conviction for failing to provide a breath specimen – whether the applicant has supplied a proper explanation for the delay in filing his appeal – whether the applicant’s proposed appeal possesses any prospect of success

District Court of Queensland Act 1967 (Qld), s 118(3), s 119

Burke v Commissioner of Police [2016] QCA 184, mentioned

Clark v Trevilyan [1963] QWN 11, cited

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

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited

Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited

Pickering v McArthur [2005] QCA 294, cited

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf

D Balic for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Morrison JA.
  2. [2]
    MORRISON JA:  Late in the evening of 4 April 2016 police intercepted the applicant in his car for a random breath test.  He returned a positive result and was then transported to a police station where, notwithstanding three attempts, he failed to provide a specimen of breath.  He later asked to be given a blood test, but that was refused.
  3. [3]
    After an initial trial and successful appeal, at a re-trial on 4 June 2018 the applicant was convicted of failing to provide a specimen of breath for analysis, in contravention of s 80(11) of the Transport Operations (Road Use Management Act) 1995 (Qld)).[1]
  4. [4]
    The applicant was also the subject of two charges of breaching his bail conditions on 29 April 2016 and 2 May 2016.[2]
  5. [5]
    Then, on 6 May 2016 the applicant resisted being arrested in respect of his breaches of bail, and in the process, aggressively yelled obscenities at the arresting officers in a public place and in the presence of members of the public.  This episode resulted in two additional charges, one of obstructing police and one of public nuisance.  On 21 June 2018 those charges went to trial and the applicant was convicted on both charges.
  6. [6]
    The applicant exercised his right to appeal to the District Court in respect of all three convictions.  The appeal was heard on 31 August 2018, and the decision was handed down on 11 September 2018.[3]  The appeal against the conviction for failure to provide a specimen of breath was dismissed.  The appeal against the conviction for obstructing police was allowed, with the conviction set aside and an acquittal entered.  The appeal against conviction for public nuisance was dismissed.
  7. [7]
    On 31 October 2018 the applicant applied for an extension of time within which to bring an application for leave to appeal against the District Court decision.  That was filed four and a-half weeks after the expiry of the time within which such an application for leave to appeal should have been made.  The sole ground on which the extension of time is sought is that the applicant was “getting legal advice”.
  8. [8]
    In the proposed application for leave to appeal the applicant nominated only the conviction in respect of public nuisance, seeking to appeal on the ground that “it was clearly an unlawful arrest”.  However, in an outline of argument filed on 26 November 2018, and thus more than eight weeks out of time, the applicant signified his desire to also appeal against the conviction for failing to provide a breath specimen.  The ground identified on this occasion was that the excuse to arrest him, namely the breach of bail, “has been defeated by not guilty verdicts to these same charges”.

Legal principles – extension of time

  1. [9]
    In so far as the application for extension of time is concerned, the principles are well established.  In considering whether to grant an extension of time the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That examination may involve assessment of whether the appeal seems to be a viable one.[4]

Legal principles – leave to appeal

  1. [10]
    In so far as leave to appeal is concerned, the relevant principle is the often quoted passage from Pickering v McArthur:[5]

“Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that is an error to be corrected.”

  1. [11]
    That statement of principle has been consistently applied by this Court on applications for leave to appeal under s 118(3) including from appellate decisions of the District Court.  The policy reason for adopting the approach in Pickering v McArthur were reinforced in Pearson v Thuringowa City Council:[6]

The restriction imposed by s 118(3) of the District Court of Queensland Act 1967 on appeals to the Court serves the purpose of ensuring that this Court’s time is not taken up with appeals where no identifiable error or injustice can be articulated by those litigants whose arguments have already been fully considered at two judicial hearings.”

Legal principles - Nature of the appeal

  1. [12]
    The applicant’s appeal to the District Court was pursuant to s 222 of the Justices Act 1886 (Qld).  Such an appeal is by way of a rehearing on the evidence before the Magistrate as well as any other evidence admitted on the appeal.
  2. [13]
    By contrast an appeal from the District Court in its appellate jurisdiction, brought under s 118(3) of the District Court of Queensland Act 1967 (Qld), is not by way of rehearing.  Rather, it is an appeal in the strict sense, in which the court considers whether there was an error, on the basis of the material before the District Court.[7]  The basis upon which an appellate court entertains a strict appeal was set down in Fox v Percy:[8]

“[The court’s] sole duty … is to determine whether error has been shown on the part of the [court below].  This Court is not engaged in a rehearing.  As such, it is not this Court’s task to decide where the truth lay as between the competing versions of the [witnesses].”

  1. [14]
    Section 119 of the District Court Act also provides for the powers of the Court of Appeal on an appeal from the District Court in its appellate jurisdiction:

“(1) On the hearing of an appeal the Court of Appeal shall have power to draw inferences of fact from facts found by the judge or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.”

  1. [15]
    In McDonald v Queensland Police Service, this Court held that there were two aspects to the jurisdiction of the Court of Appeal where findings of fact were challenged on an appeal under s 118.  The first was whether there was any evidence on which the findings may be made, which was a question of law.  The second was whether the findings were unreasonable, which was a question of fact.[9]
  2. [16]
    Further, McDonald v Queensland Police Service adopted what was said by the Full Court in Clark v Trevilyan:[10]

“If we are bound, as I think we are, to treat the findings of a District Court judge as though they were those of a jury, we have no right to substitute our own findings for those of the District Court judge.  Our function is limited to see first whether there is any evidence in support of the findings, and secondly whether the finding can be set aside as being against the weight of evidence and unreasonable, within the meaning of the authorities discussed by Dixon J … in Hocking v Bell [1945] 71 CLR 430 at pp 497 – 499).  When these tests are applied, the finding that is now attacked cannot be disturbed.  Slight as it was, there was some evidence to support the judge’s finding … There is no such preponderance of evidence against this finding as to make it unreasonable.”

  1. [17]
    The principles which apply to appeals to this Court from judgments of the District Court in its appellate jurisdiction were then authoritatively summarised by Bowskill J:[11]

[39] By way of summary, the following are the principles that apply, to appeals to this Court from judgments of a District Court in its appellate jurisdiction:

  1. the nature of the appeal is governed by ss 118 and 119 of the District Court of Queensland Act 1967;
  2. an appeal from a judgment of the District Court in its appellate jurisdiction lies only with the leave of this Court: s 118(3);
  3. this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings;
  4. the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected;
  5. if leave is granted, the appeal is an appeal in the strict sense (cf s 118(8)), in respect of which the Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court. This Court is not engaged in a rehearing; as such, it is not this Court’s task to decide where the truth lay as between the competing versions of the witnesses; and it is not for this Court to substitute its own findings for those of the District Court judge;
  6. a factual finding of a District Court judge, on an appeal to that court (which may be different from, or additional to those made by the Magistrate at first instance, or which may confirm the findings of the Magistrate at first instance, since the appeal to the District Court is by way of rehearing) may only be reviewed on an appeal to this Court if there is no evidence to support it, or it is shown to be unreasonable, in the sense discussed in Hocking v Bell in relation to findings of fact by a jury;
  7. on the hearing of an appeal, this Court has power to draw inferences of fact from facts found by the District Court judge, or from admitted facts or facts not disputed, but, except where there is no evidence on which the judge below might have reached his or her conclusions, or the conclusions are unreasonable, any such inferences shall not be inconsistent with the findings of the District Court judge (s 119(1)); and
  8. the appeal to this Court is not limited to errors of law.”

Discussion - extension of time

  1. [18]
    The only matter initially as an explanation for the delay in lodging this proceeding on 31 October 2018 are the words in the application itself, “getting legal advice”.  Nothing further was said by way elaboration.  No affidavit was sworn.  That explanation must be met with some scepticism given that the applicant represented himself on the appeal to the District Court, and has appeared for himself in other proceedings in this Court.[12]
  2. [19]
    The outline filed on 26 November 2018 does not advance matters at all.  Apart from adding some matters to the document filed on 31 October 2018, it says nothing whatever about the reasons for the delay, either in respect of the first document filed, or in respect of the delay until 26 November 2018 when an additional conviction was first sought to be made subject of an appeal.
  3. [20]
    In an email dated 15 April 2019, the applicant provided a further statement as to why the appeal was late.  Leaving aside much of the invective which seems to have infected the applicant’s outline and communications, it was said that the legal system had put the applicant through unfounded allegations with the consequence that his physical and mental health as a result of being incarcerated affected the timely lodgement.
  4. [21]
    The difficulty with that assertion, unsupported as it is by any medical evidence or sworn affidavit, is that the applicant’s incarceration occurred in May 2016, well over two years before the decision in the District Court was handed down.  He has proffered no evidence to support the causal link between the two.
  5. [22]
    There is, in my view, no proper explanation for the delay.  By itself that would be sufficient reason to refuse the application.  However, because the applicant is self-represented I intend to examine whether I consider it is in the interests of justice to grant the extension in any event.  It is therefore necessary to examine the proposed challenges to the decision of the learned District Court judge.

Conviction for public nuisance

  1. [23]
    The applicant has articulated a number of aspects of his challenge to the conviction for public nuisance.  Before considering them it is appropriate that I summarise the essential facts concerning that offence.  What follows is drawn from the summary of evidence outlined by the learned District Court judge.[13]
  2. [24]
    The bail conditions were applied in respect of two charges of serious assault committed on 5 April 2016, as well as the offence of failing to provide a specimen of breath.  The alleged breaches of bail conditions were committed on 29 April and 2 May 2016.  The public nuisance and obstruct police charges were committed subsequently on 6 May 2016.[14] After a somewhat chequered history in the Magistrates Court and District Court, on 27 April 2018 the prosecution offered no evidence in relation to the two charges of serious assault, substituting a charge of obstructing police.  On that day pleas of not guilty were entered to the charge of obstructing police, and the existing charge of failing to provide a specimen of breath.[15]

Events of the arrest and public nuisance

  1. [25]
    Constable Pratt was informed that the applicant was at the police counter and needed to be spoken to about outstanding matters.  He noted that the applicant had failed to report to police on two occasions, as required by his bail conditions.  Enlisting the aid of Constable Tim, he went to the foyer to speak to the applicant.  In the course of discussing matters the applicant said he would need to tell his mother who was waiting outside in a taxi.  Both officers went outside with him.
  2. [26]
    Because of obscene language used by, and aggressive demeanour on the part of, the applicant, Constable Pratt arrested him for breaching his bail.  In the process Constable Pratt took the applicant’s right arm, and Constable Tim took the left arm.  They walked the applicant towards the station, with him resisting and swearing at them.  As they got to the police station there were members of the public sitting outside and in the foyer.  The applicant was yelling out things like: “you fucking scum – fucking pair of pricks”, and accusing the officers of being paedophiles.  The people in the foyer noticed that conduct, one moving out of the way as they went past.
  3. [27]
    Constable Pratt gave evidence that he arrested the applicant (i) to prevent him from committing further offences, (ii) for public nuisance because of his swearing, (iii) because the applicant had become aggressive and unpredictable, and (iv) for the breach of bail offences.
  4. [28]
    Constable Tim’s evidence was that the applicant yelled out obscenities as they entered the station foyer, where there were multiple members of the public present.  He yelled out words to the effect of, “you pair of scum sucking pricks … what a bunch paedos”.  The language was described as vulgar, offensive and very inappropriate in the face of members of the public.
  5. [29]
    The applicant’s evidence was that he reacted after the police officers “went hands on”.  He admitted that he may have called the officers names because he wanted to offend them, due to what he said was the injustice of the situation in which he found himself.  His contention was that he was resisting unlawful arrest.  He admitted that he called the police officers the “lowest thing that they are, and it’s probably the lowest thing that you can all anyway … they deserve to be told what they are”.
  6. [30]
    The applicant’s submissions to this Court admitted that he called the officers paedophiles because he was angry.

Decision of the District Court judge

  1. [31]
    The learned District Court judge found that the arrest was not unlawful.  The contention below, as it was before this Court, was that the subsequent withdrawal of the charges which were the subject of the grant of bail rendered the arrest for breach of the bail undertaking unlawful.
  2. [32]
    However, the same undertakings had been given in respect of a charge which had not been withdrawn, namely the failure to provide a specimen of breath.  The requirement to report applied to that charge.[16]  Further, that the police mistakenly believed that their power to arrest fell under s 365 of the Police Powers and Responsibilities Act 2000 (Qld), whereas they acted lawfully under s 367(3) that Act, did not mean the arrest was unlawful.[17]
  3. [33]
    The learned District Court judge reviewed all of the evidence, including the submissions made by the prosecutor and the applicant at trial, and the Magistrate’s reasons.[18]  Her Honour accepted the police officers evidence as credible and reliable, and materially consistent with the body-camera recording which her Honour had watched.  The offending language could be clearly heard on that recording.  Her Honour accepted that it was spoken loudly enough for members of the public to hear and that some of the members of the public had reacted to it, one by moving way.  The applicant’s admissions to calling the police officers paedophiles bolstered her Honour’s conclusion that the findings of fact supported the charge of public nuisance.[19]
  4. [34]
    Before this Court, the appellant contended:
  1. (a)
    the arrest was unlawful because the breach of bail “has been defeated by not guilty verdicts to these same charges”;[20]
  2. (b)
    the acquittal on those charges was retrospective;
  3. (c)
    the applicant acted in self-defence as he had the right to “protest all these vexatious charges that were made against me”, referring to the serious assault charges the subject of the bail undertaking and the offence of obstructing police;[21] and
  4. (d)
    the charge brought corruptly.
  1. [35]
    In my view, the learned District Court judge was plainly right to reach the conclusion that the arrest of the applicant was not unlawful.  On the day he was arrested there were extant breaches of conditions of bail.  As it happened, the breach of bail offences were not discontinued until 28 September 2018.[22]  At the date of the arrest in issue the serious assault charges had not gone to court.  The fact that at a subsequent time the prosecution elected to offer no evidence in respect of them does not retrospectively negate the conditions of bail, or the breach in respect of them.  As the learned District Court judge pointed out, the condition of obliging the applicant to report also applied to the other charge (failing to supply a specimen of breath) which was then yet to go to trial.
  2. [36]
    That conclusion also disposes of any suggestion of a right to self-defence in respect of the applicant’s arrest and the offence of public nuisance.  That point was raised and disposed of by the learned District Court judge.[23]  In any event the applicant’s contentions proceeded on the mistaken view that s 418 of the Crimes Act 1900 (NSW) applied to what occurred.  That section is in materially different terms from the self-defence provisions in the Criminal Code 1899 (Qld).
  3. [37]
    Beyond mere assertion there is no basis whatever to conclude that the charges were corruptibly brought.  That allegation, repeatedly made, can be put to one side.
  4. [38]
    No error has been demonstrated on the part of the learned District Court judge, nor can it be shown that the factual findings in the District Court lacked evidence to support them, or are otherwise unreasonable.  The challenge to the decision below in respect of the public nuisance charge lacks merit.

Charge for failing to provide a specimen of breath

  1. [39]
    In relation to the offence of failing to provide a breath specimen, the applicant’s submissions are relevantly short.  It is contended that the police “had no right to deliberately deny me a blood test while I was in hospital for 6 hours.  As if I was not in custody I could have gotten a blood test at my own expense to clear my name”.[24]
  2. [40]
    The offence of failing to provide a specimen for breath was committed on 5 April 2016.  On 4 June 2018 the trial took place, and on 12 July 2018 the acting Magistrate found the appellant guilty of the offence.  The facts surrounding this offence can be summarised for the purposes of this application as set out below, taken from the District Court judge’s reasons.[25]
  3. [41]
    Late in the evening on 4 April the police intercepted the applicant in his car for a random breath test, which returned a positive result.  He was taken to a police station where he failed to provide a specimen of his breath.  At some point he asked to be given a blood test but that was refused.  Before the District Court, as before this Court, the applicant contended that the refusal to give him a blood test was unlawful.
  4. [42]
    Senior Constable MacDonald was on duty when the applicant was brought into the police station.  She prepared the breath analysis room and instrument and asked the applicant various questions.  During that time the applicant began “coughing quite a lot”.  The applicant was directed to provide a specimen of breath.  He began blowing on the instrument with his lips at the end of the tube, but they slipped off “fairly quickly”.  On two subsequent occasions the applicant failed to supply a specimen.  The applicant was informed that he had supplied an insufficient specimen and had not followed the directions.  Constable MacDonald completed a “failed to comply certificate” and gave a copy to the applicant.  Her evidence was that she was the authorised officer to use the instrument and operated it appropriately.  She said she complied with all obligations and did not witness anything to suggest the applicant could not provide a sample.
  5. [43]
    In cross-examination Constable MacDonald agreed that there was nothing to stop the applicant from receiving a blood test.  She confirmed, however, that a person could not elect to do a blood test sample in lieu of a breath sample unless they were unable to provide a breath sample due to a medical condition, which would usually be endorsed on their licence or would be on a certificate.  Further, a blood test would be taken if a person was physically unable to provide a specimen or were under the effect of drugs.  None of those applied to the applicant.
  6. [44]
    Senior Constable Winnett was the officer who intercepted the applicant’s car.  The roadside breath test returned a positive reading, as a consequence of which the applicant was taken to the police station for further testing.  His evidence was that he observed the applicant on three occasions to fail to supply a specimen of breath.  He said the applicant’s demeanour changed when he went into the room for the breath specimen supply, in that he starting coughing, wheezing and being unresponsive to questions.  The applicant was able to give a breath sample at the roadside.  Constable Winnett said the applicant showed no signs of having any breathing difficulties and the applicant did not inform them of any injury or illness which would affect his ability.  Instead the applicant was yelling, raising his voice and becoming argumentative.  Constable Winnett supported the other evidence that the circumstances were inapplicable for a blood sample to be taken.
  7. [45]
    The applicant’s evidence was that he had wanted a blood test from “the word go”.  He said he failed the three attempts at providing a breath specimen because it was more difficult to do than the roadside instrument.  He said he was unable to provide a specimen of breath due to his medical condition of whooping cough, though the certificate he relied upon related to his having that condition only in May 2015.
  8. [46]
    Under cross-examination the applicant agreed he was directed to provide a specimen of breath and did not do so.  He said he believed he had a valid medical condition for not being able to provide a specimen of breath at that time.  However, he agreed he did not have an endorsement on his licence to that effect and agreed that he did not have a medical certificate which stated that he had breathing difficulties.
  9. [47]
    The learned District Court judge examined the legislation under which the applicant had been charged.[26]  Her Honour then reviewed all of evidence including body camera footage and the various exhibits.  She accepted the evidence of the police officers as credible and reliable, noting that their evidence was supported by the body camera recordings and by parts of the applicant’s own evidence.  Her Honour accepted the evidence that the reading at the roadside was a positive one, and then made the following further factual findings:[27]

“The appellant was stopped at the road side and breathalysed.  He provided a positive reading.  He was taken to the police station and directed by Constable MacDonald to provide a further breath sample for analysis.  Constable MacDonald was authorised under the provisions of TORUM to operate the breath analysing instrument.  The appellant blew into the instrument but did not properly provide a breath sample on three occasions.  The appellant was asked whether he had any illnesses or injuries that would affect his ability in giving a breath sample.  The appellant was asked if he had any endorsement on his licence of any illnesses.  The appellant did not inform them of any injury or illness.  Dr Appleton’s letter certifying the appellant is recorded as previously having Whooping Cough in May 2015 does not amount to cogent evidence the appellant was incapable of providing a breath sample at the police station as directed.  The Client Summary report of the appellant’s blow aborts during the period he was required to blow into an interlock device, dated 17 August 2017, is not evidence that persuades me that the appellant was physically incapable of supplying a specimen of breath for analysis on 5 April 2016.  The same applies to the appellant’s notes dated 4 April 2016 in which he records: “dry throat … Breathing heavy”.  The appellant was physically capable of providing a road side breath sample earlier that night.  I am satisfied beyond reasonable doubt the appellant was also physically capable of supplying a specimen of breath back at the police station.”

  1. [48]
    As a consequence of those findings of fact the learned District Court judge was satisfied beyond reasonable doubt that the offence was committed.
  2. [49]
    The applicant relied on s 80(11A) of TORUM which provides a defence as follows:

“A person referred to in subsection (11) is not guilty of an offence under that subsection if the person satisfies the justices that the requisition to provide the specimen was not lawfully made or that the person was, because of the events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the person’s failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.”

  1. [50]
    As to that defence, her Honour observed that the onus was on the applicant to satisfy the Court.  As was the case with the Magistrate at first instance, her Honour was “not satisfied to any extent that the requisition to provide a specimen was not lawfully made, nor that the [applicant] was incapable of providing a specimen”.[28]
  2. [51]
    None of the witnesses testified that there was any request by the applicant to give the specimen by way of a blood sample until, as Constable Winnett said, the applicant was transferred to the watch-house, where he told the watch-house sergeant that he wanted to provide blood.  But there was no evidence to support the applicant’s evidence that he wanted to provide blood from “the word go”.  Moreover, the evidence from the officer authorised to operate the equipment was that none of the conditions which would warrant the giving of blood were applicable to the applicant.  Further, whilst a doctor’s letter[29] was produced at the trial before the Magistrate, there was no affidavit by the doctor, and neither at that trial nor in the District Court was the doctor called to give evidence.  Accordingly, the letter was given less weight than it would have otherwise have.  The body-cam footage revealed that the applicant was given a number of opportunities to outline any medical conditions which would have adversely impacted upon his ability to provide a sample, and whilst advising that his lungs were “not the best”, he advised he had no illness or medical condition.
  3. [52]
    In light of that evidence, and the findings both by the Magistrate and the learned District Court judge, it was not surprising that the conviction entered by the Magistrate was upheld on appeal by the learned District Court judge.  The District Court judge’s conclusion was independently arrived at as a result of her Honour’s review of all the evidence including the camera footage and the exhibits.  No error whatever has been demonstrated in the conduct of that appeal, nor can it be shown that the factual findings in the District Court lacked evidence to support them, or are otherwise unreasonable.
  4. [53]
    Though the applicant asserts that the police deliberately denied him the opportunity of a blood test, that was not borne out by any of the evidence.
  5. [54]
    In my view, this proposed ground of appeal lacks merit.

Conclusion

  1. [55]
    The proposed appeal lacks any prospects of success and it is therefore not in the interest of justice to grant an extension of time.  I propose the following order:
    1. The application for an extension of time within which to appeal is refused.
  2. [56]
    DAVIS J:  The application for an extension of time within which to appeal should be refused for the reasons given by Morrison JA.

Footnotes

[1]  Referred to as “TORUM”.

[2]  Those charges were ultimately transferred to the Ipswich Magistrates Court on 4 May 2018.

[3] Burke v Commissioner of Police, unreported, McGinness DCJ, DC No 20 of 17, 11 September 2018 [Reasons below].

[4]R v Tait [1999] 2 Qd R 667.

[5]  [2005] QCA 294 at [3]; internal citations omitted.

[6]  [2006] 1 Qd R 416 at [14].  See also: Gobus v Queensland Police Service [2013] QCA 172 at [6] – [7], and McDonald v Queensland Police Service at [28].

[7] McDonald v Queensland Police Service [2017] QCA 255, at [12].

[8]  (2003) 214 CLR 118 at [32].  See also Eastman v The Queen (2000) 203 CLR 1 at [17] – [18], [104] – [105], and [290].

[9] McDonald v Queensland Police Service at [20].

[10]  [1963] QWN 11.

[11] McDonald v Queensland Police Service at [39], Fraser and Philippides JJA concurring.  Internal citations omitted.

[12] Burke v Commissioner of Police [2016] QCA 184.

[13]  Reasons below at [42]–[57].

[14]  Reasons below at [6].

[15]  Reasons below at [9].

[16]  Reasons below at [67].

[17]  Reasons below at [68] and [69].

[18]  Reasons below at [66].

[19]  Reasons below at [79].

[20]  A reference to the offences for serious assault which were subsequently dismissed when no evidence was offered.

[21]  The conviction for the latter, obstruction of police, was overturned by the learned District Court judge.

[22]  Affidavit of Ms Gillies, 29 April 2019.

[23]  Reasons below at [70].

[24]  Appellant’s outline 26 November 2018.

[25]  Reasons below at 17-30.

[26]  Sections 79 and 80 of TORUM.

[27]  Reasons below at 37; internal footnotes omitted.

[28]  Reasons below at 38.

[29]  Saying the applicant had whooping cough in May 2015.

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Editorial Notes

  • Published Case Name:

    Burke v Commissioner of Police

  • Shortened Case Name:

    Burke v Commissioner of Police

  • MNC:

    [2019] QCA 158

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Davis J

  • Date:

    20 Aug 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment Magistrates Court (No Citation) 04 Jun 2018 Applicant convicted of failing to provide a specimen of breath for analysis, in contravention of s 80(11) of the Transport Operations (Road Use Management Act) 1995 (Qld).
Primary Judgment Magistrates Court (No Citation) 21 Jun 2018 Applicant convicted of one count of obstructing police and one count of public nuisance.
Primary Judgment DC20/17 (No Citation) 11 Sep 2018 Appeal against conviction for failure to provide a specimen of breath dismissed; appeal against conviction for obstructing police allowed, with conviction set aside and an acquittal entered; appeal against conviction for public nuisance dismissed: McGinness DCJ.
Appeal Determined (QCA) [2019] QCA 158 20 Aug 2019 Application for an extension of time within which to appeal refused: Sofronoff P and Morrison JA and Davis J.

Appeal Status

{solid} Appeal Determined (QCA)