- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Schafer v Commissioner of Police  QCA 292
SCHAFER, Michelle Lynette
COMMISSIONER OF POLICE
CA No 141 of 2019
DC No 30 of 2018
Court of Appeal
Application for Extension of Time s 118 DCA (Criminal)
District Court at Rockhampton – Unreported, 5 April 2019 (Burnett DCJ)
10 December 2019
28 October 2019
Sofronoff P and Philippides JA and North J
Application for an extension of time within which to appeal is refused.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was convicted of one charge of failure to provide a breath specimen and one charge of contravening a requirement or direction given by a police officer – where the applicant has applied for an extension of time in which to appeal – where the application for extension was filed three weeks after the expiry of the time within which such an application for leave to appeal should have been made – where the applicant stated nine grounds of appeal including an unspecified error under the constitution and the unlawfulness of a statutory police power to arrest, detain or to question citizens – where the applicant’s outline indicated her desire to appeal against both convictions – whether the applicant has supplied a proper explanation for the delay in filing her appeal – whether the applicant’s proposed appeal possesses any prospect of success – whether it is in the interests of justice to grant the extension sought
District Court of Queensland Act 1967 (Qld), s 118(3)
Police Powers and Responsibilities Act 2000 (Qld), s 40(1), s 41(b), s 633, s 791
Transport Operations (Road Use Management) Act 1995 (Qld), s 80(2), s 80(5A)
Burke v Commissioner of Police  QCA 158, followed
R v Tait  2 Qd R 667;  QCA 304, cited
The applicant appeared on her own behalf
P J McCarthy for the respondent
The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of North J and the order his Honour proposes.
PHILIPPIDES JA: I agree with North J.
NORTH J: After a trial before a Magistrate sitting at Rockhampton, the applicant was found guilty of two summary offences. She unsuccessfully appealed to the District Court where, after a hearing, her appeals were dismissed on 5 April 2019. She seeks from this Court an extension of time in order to apply for leave to appeal.
On 17 November 2017 the applicant was driving her black Toyota wagon when she was intercepted by a police officer performing mobile patrols on the Bruce Highway near Kunwarara in Queensland. During conversations between the applicant and the police officer he requested that she provide a specimen of her breath for a breath test pursuant to s 80(2) of the Transport Operations (Road Use Management) Act 1995 (Qld). The applicant failed to provide a specimen. She was charged and, following a hearing before the Magistrate sitting at Rockhampton, she was fined $300 and a conviction was recorded.
After the applicant failed to provide the breath specimen she was placed under arrest and the police officer asked her to provide details of her name. She failed to provide this information. She was charged. The Magistrate held that the applicant was guilty of contravening a requirement or direction given by a police officer (s 791(2) PPRA) and fined her $300 but no conviction was recorded.
The applicant appealed to the District Court in respect of both convictions. The Appeal was heard on 5 April 2019 where the applicant represented herself. The learned judge dismissed the appeals against both convictions giving ex tempore reasons.
The applicant did not file her application for leave to appeal until 24 May 2019 consequently she needs an extension of time within which to bring her application for leave to appeal. In her application for an extension of time she stated that she lived 160 kilometres from the Court (presumably the Courthouse at Rockhampton), that she suffered from a medical condition, that she lacked funds to obtain a transcript of the proceeding. In oral submissions the applicant said that on 3 May 2019 she had unsuccessfully attempted to file documents in the District Registry of the Court at Rockhampton.
Leave to appeal – s 118 – the principles
The application for a grant of leave to appeal in this case is governed by s 118 and, in particular s 118(3) of the District Court of Queensland Act 1967 (Qld). The legal principles concerning an extension of time to seek leave to appeal and to the grant of leave to appeal and the nature of the appeal under s 118(3) are well established. They were recently comprehensively restated by Morrison JA (with whom the President and Davis J agreed) in Burke v Commissioner of Police.
“Legal Principles – extension of time
 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.”
Thereafter his Honour re-stated the principles applicable when considering an application for leave to appeal:
“Legal Principles – leave to appeal
 In so far as leave to appeal is concerned, the relevant principle is the often quoted passage from Pickering v McArthur:
“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.”
That statement of principle has been consistently applied by this Court on applications for leave to appeal under s 118(3) including from appellate decision of the District Court. The policy reason for adopting the approach in Pickering v McArthur were reinforced in Pearson v Thuringowa City Council:
“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.”
Thereafter Morrison JA comprehensively restated the principles applicable concerning the nature of any appeal from the District Court emphasising that Court’s appellate jurisdiction under s 222 of the Justices Act 1886 (Qld) and the nature of the appeal pursuant to s 118(3):
“Legal Principles – Nature of the appeal
 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.
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. The basis upon which an appellate court entertains a strict appeal was set down in Fox v Percy:
“[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].”
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.”
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.
Further, McDonald v Queensland Police Service adopted what was said by the Full Court in Clark v Trevilyan:
“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  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.”
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:
“ By way of summary, the following are principles that apply, to appeals to the Court from judgments of a District Court in its appellate jurisdiction:
The nature of the appeal is governed by ss 118 and 119 of the District Court of Queensland Act 1967;
an appeal from a judgment of the District Court in its appellate jurisdiction lies only with the leave of this Court: s 118(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;
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;
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;
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 the 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;
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
the appeal to this Court is not limited to errors of law.”
Discussion – extension of time and delay
The applicant ultimately filed her application for leave to appeal approximately three weeks after the expiration of the time within which the application should have been made. She has not filed an affidavit that establishes the facts and circumstances relied upon to explain her delay. The applicant was not represented by lawyers, she has represented herself in both Courts below and in the proceedings in this Court. It may be inferred that this circumstance may have contributed to the delay and to the “technical issues” she said prevented her from filing an application for leave to appeal on 3 May 2019. Her application for leave to appeal is dated 3 May 2019 and supports her account. Further the combination of her limited funds, the difficulty in obtaining transcripts and the distance she lived from Rockhampton may have contributed to the delay. It’s less clear how the applicant’s asserted “medical condition” contributed to the delay. The Court was provided with a medical certificate from her general practitioner and an accompanying letter from a treating psychologist suggesting that the applicant had been treated for phobias but that issue was not elaborated upon and explained in any affidavit.
Notwithstanding my misgivings about the absence of sworn evidence explaining the circumstances leading to the delay; because the applicant is self-represented and may have some psychological issues I move to a consideration of whether it is in the interests of justice to grant the extension of time.
Conviction for failing to provide specimen of breath
The police officer was called as a witness before the Magistrate. He gave evidence of the interception referred to in  above and of the activation of his body cam. The discs of the video/audio recording of the happenings both of the roadside and later at the police station became Exhibits 1 and 2 at the trial before the Magistrate. Exhibit 1 shows that the police officer made three requests of the applicant to supply a specimen of her breath for analysis and on each occasion she failed to supply a specimen. The applicant elected not to give evidence. The Magistrate held that the applicant had failed to provide a specimen of breath.
The appeal hearing in the District Court proceeded upon the record below with the applicant making submissions in support of the grounds of appeal. In his reasons for dismissing the appeal concerning the conviction for failing to supply a specimen the learned judge said that in his view the “evidence was overwhelming”. In this respect he was referring to the video/audio recording from the body cam. In his reasons his Honour considered and addressed each of nine grounds of appeal advanced by the applicant. They included the failure to call two other police officers. But his Honour held that there was no injustice occasioned by this because the evidence indicated that those other police officers were only present for part of the time either at either the roadside scene or later at the police station and for that reason together with the record of the events from the video/audio recording, no injustice had been occasioned to the respondent. The applicant submitted in support of another ground that she was prevented from cross-examining the police officer and potentially other witnesses upon their knowledge of the law. This contention demonstrates a misapprehension of the purpose of calling witnesses, to establish the facts, issues of law being a matter for submissions. Another ground of appeal agitated by the applicant was that the applicant had been prosecuted summarily and not on indictment before a jury contrary, she submitted, to s 80 of the constitution. I will address this ground separately later but his Honour correctly rejected this submission. The applicant contended before his Honour that the Magistrate had incorrectly rejected her submission that he should accept some statement in a law dictionary as definitive upon the issue of the proper interpretation of words that appeared in the legislation, for example s 80(2) TORUM. This submission was misconceived and properly rejected by his Honour.
Other less compelling grounds of appeal in submissions were contended by the applicant before his Honour below. His Honour considered each of the submissions in turn and for the reasons he gave rejected them. I have considered the transcript of the proceedings before his Honour below and reviewed it and the reasons given by his Honour for dismissing the appeal against this conviction and I can detect no material error on the part of his Honour.
Conviction for contravening a requirement and direction
The applicant was charged that without reasonable excuse she contravened a requirement given by the police officer to “state full name and address” contrary to s 791 PPRA. In their reasons the Magistrate and the learned District Court judge said that the police officer asked the applicant to state her name and address. This is not accurate. The video/audio of the body cam (Ex 1) reveals that at the side of the road the police officer asked the applicant “do you have any identification on you” and “anything that has your name on it” to which she did not in turn respond. It was at the police station that the police officer unambiguously requested the applicant to state her full name and following her failure to provide that information gave to the applicant a warning required by s 633 PPRA. Consistent with that evidence the police officer gave evidence that he only required of the applicant her name.
The power given to a police officer who, under s 41(b) reasonably suspects a person has committed an offence, to require a person to state their current name and address is found in s 40(1) of the PPRA. The power given by s 40(1) in the prescribed circumstances that the officer has formed the reasonable suspicion s 41(b) speaks of (as I have said in this case its foundation was the offence of failing to supply the specimen of breath) has an obvious utility. The name and address of a relevant suspect is relevant to the charge, to bail and potentially further investigations. Circumstances may vary. The officer may know the name of the person but not the address. Correspondingly the address may be known but not the name or neither may be known. For these reasons in my view the word “and” where it appears in the subsection can be read disjunctively, that is that assuming prescribed circumstances, the police officer could require of a person the correct name or correct address or both. In this case by the time the police officer requested the applicant to state her name he had arrested her for the failure to supply a specimen. This was the basis of the “reasonable suspicion” s 41 speaks of. Thus a prescribed circumstance required by s 41(b) existed.
For these reasons, in my view, nothing turns on the fact that the evidence does not support the charge in its precise particulars. No injustice occurred. No confusion can have occurred. There was an unambiguous request of the applicant for her name, she failed to comply. She was given the warnings the PPRA required yet she contravened and failed to provide her name. Exhibit 2 reveals that a second officer also gave the applicant a warning consistent with s 633 of the PPRA yet it was not until some minutes past that she complied. The applicant did not give any evidence challenging the evidence of the police officer or the essential facts and the events demonstrated by Exhibits 1 and 2. The charge was proven and the applicant has demonstrated no basis for a contrary conclusion.
The application to this Court
In the notice of applications for leave to appeal in this Court the grounds for the application are difficult to follow. The applicant referred to an unspecified error in law under the Commonwealth Constitution Act of 1901. The balance of the Notice of Application makes, in effect, a submission to the effect that absent lawful statutory power police have no power to arrest, detain citizens or to question citizens. That proposition may be undoubted and it is clear that Courts are careful not to expand powers of arrest, detention or interrogation beyond the authorisation conferred by statue. But for this reason I have given, the powers conferred by the PPRA are clear and unambiguous. The police officer was acting well within the authority conferred by statute when he made the requirement of the applicant.
In her written outline of argument filed for the purposes of the hearing in this Court the applicant said:
“1. Health issues partly caused by the QPS in the following;
- False arrest and imprisonment
- Torture while imprisoned
- Threat of further torture, for failing to sign a false document
- Trespass before False arrest
- Being stopped while traveling, for wrong reason as proven in 1st court hearing
- Threat of arrest for being cautious of poisonous substance entering my body.
- Suspension of license for wrong reason (admitted in court) , without full explanation
- Health issues partly caused by the magistrates court being denied a jury (section 80 Commonwealth of Australia Constitution 1901) , and subjected to the matter being dragged on (justice delayed is justice denied)
- In the matter of law the District court judge saying the Commonwealth of Australia constitution is not relevant in this matter
- Sever financial hardship mostly due to these legal proceedings
- Now being forced to represent myself in this extension as per letters sent to this court in relation to legal aid representation
- Then there is the matter of treason , tainting of treason and treachery
- QPS has failed to respond to notice of discovery, failed to make 2nd and 3rd witnesses available and failed to provide corpus delicti
- QPS have made a mockery of the Acts interpretations Act, and due process has not been followed on many levels
- Black’s law dictionary being dismiss by being not a source to be used in this country”
The first ground of appeal is entirely unsupported by evidence. It also fails to come to grips with the clear terms of TORUM. Section 80(2) authorises a police officer to require any person found by the police officer driving a motor vehicle on a road to provide a specimen of breath for breath test, and s 80(5A) provides that if a person required by a police officer to provide a specimen of breath for breath test either fails to provide the specimen or fails to provide the specimen in the manner directed by the police officer that person commits an offence against the act. Provisions such as s 80(2) and s 80(5A) of TORUM have a long history in “traffic legislation”. They establish a lawful basis for the requirement, the offence if not complied with and the arrest of an offender. The issues raised in paragraphs two, three, four, five, six, seven, eight and nine of the outline of argument are unsupported by evidence and either fail to identify any viable point of law or to identify any arguable matter of fact suggestive of error by either the Magistrate or the District Court judge below.
But before discussing what orders should be made and the ultimate disposition of the application for an extension of time there are two matters to note, one being an issue raised by the applicant and the other one that emerged only after the hearing of the application.
Section 80 of the Constitution – Trial by jury
In her written outline the applicant complained that she had been denied (contrary to s 80 of the Constitution) a trial by jury. This argument was not developed either in writing or in oral submissions. The complaint has been considered by this Court in different circumstances before and in this case is without substance for at least two reasons. Firstly, the applicant was not tried for offences against a law of the Commonwealth but for offences against laws of the State of Queensland. Secondly, and perhaps more decisively, the applicant was not tried on indictment but summarily before a Magistrate. Neither the proceedings below nor the application to his Court “involve” a matter arising under the Constitution or its interpretation within the meaning of s 78(B)(1) of the Judiciary Act 1903 (Cth) and this complaint need not be further considered.
The issue was not ventilated by either party but, as will be seen ultimately, there is no reason for concern. I mention it only out of an abundance of caution lest it be a thought that the issue was overlooked.
The applicant was convicted of one charge of failing to provide a specimen breath. Yet the evidence discloses that on three occasions the police officer required the applicant to provide a specimen and on each occasion she failed to provide a specimen. Thus arguably she committed three offences. But of what offence was she convicted? This circumstance suggests latent duplicity. It might also be contended that the other charge of failing to state both name “and” address is duplicitous. Unsurprisingly the applicant did not raise this issue or make any complaint that this occasioned her any embarrassment or confusion in pleading to either charge or in the conduct of her defence. Ultimately in the circumstances applying here this issue is sterile and goes nowhere. The rule against latent duplicity rests upon considerations of fairness. I cannot see any basis for a complaint by the applicant of embarrassment or confusion in the conduct of her defence. The formulation and particularisation of the charges did not in the circumstances contribute to any prejudice to the applicant in the conduct of her defence.
Ultimately in oral submissions to the Court the applicant resorted to the all too familiar invocation of Magna Carta, habeas corpus and the Constitution without elaboration accompanied by coherent argument.
I can detect no error on the part of the learned District Court judge or of the Magistrate below contributing to a circumstance whereby it is necessary to correct any substantial injustice.
The proposed appeal lacks any prospect of success and it is not in the interest of justice to grant an extension of time. I propose the following Order:
The application for an extension of time within which to appeal is refused.
 Hereafter “TORUM”.
 See TORUM s 80(5A) and Commissioner of Police v Schafer, Unreported, Magistrate Clarke, (Rockhampton), 19 July 2018. Reasons at first instance, at T8 l30. It might be noted that the Respondent in the outline filed in this matter erroneously said that no conviction was recorded. Nothing turns on that.
 As to the source of the powers see ss 40(1) and 41(b) Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”).
 Schafer v Commissioner of Police, Unreported, Burnett DCJ, DC No 300/2018 (Rockhampton), 5 April 2019. Reasons below.
 She filed an application for an extension of time contemporaneously with the filing of her application for leave to appeal on 24 May 2019.
 See for example McDonald v Queensland Police Service  2 Qd R 612.
 Burke v Commissioner of Police  QCA 158.
 R v Tait  2 Qd R 667,  (McMurdo P, Thomas JA & Cullinane J).
 Burke v Commissioner of Police  QCA 158,  (Morrison JA).
 Burke v Commissioner of Police  QCA 158, - (Morrison JA).
 Burke v Commissioner of Police  QCA 158, - (Morrison JA).
 And with it the application for an extension of time.
 See r 85 Criminal Practice Rules 1999 (Qld) and the definition of “appeal period” in sch 6.
 Reasons at first instance, T4 l25.
 See bench charge sheet. This is also the way the Magistrate appears to have understood the particulars of the charge; see Transcript of proceedings, T1-3 ll8.
 See Reasons at first instance, T5 l5.
 See Reasons at first instance, T6 l24.
 See Ex 2 in the Magistrate’s Court hearing.
 See evidence of police officer in the Transcript of the hearing before the Magistrate at T1-10 l19.
 See as examples of the circumstances where “and” can be read disjunctively Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454,  (Malcolm CJ); Re The Licensing Ordinance (1968) 13 FLR 143, 146-7 (Blackburn J); Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107,  (Kenny J).
 There is ample authority for the proposition that the failure to prove all of the particulars of a charge is not necessarily fatal, see for example R v Radic  NSWCCA 174,  (Carruthers AJ).
 For example in support he referred to R v Banner  VR 240, 249 (Winneke CJ).
 See for example Trobridge v Hardy (1955) 94 CLR 147, 153-4 (Fullagar J); Arnesto v Hickman  TASSC 26.
 Written outline of argument filed 26 September 2019.
 See Murphy v Porter, ex parte Murphy  1 Qd R 59.
 Till v Johns  QCA 451,  (McMurdo P); Mowen v Australian Electoral Commission  QCA 152, ,  (Atkinson J).
 See for example Justices Act 1886 (Qld) s 19 and the definitions of “indictable offence”, “indictment”, “simple offence”, “summary conviction or conviction” in s 5. And further the Criminal Code Act 1899 (Qld) ss 2, 3 and the definitions of “indictment” and “summary convictions” in s 1.
 See Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, 74 (Toohey J). Consequently, there was no occasion for notices to be given as contemplated by this section. See also Glennan v Commissioner of Taxation (2003) 198 ALR 250,  (Gummow, Hayne & Callinan JJ).
 R v Rad  QCA 103, - (Davis J).
 R v Rad  QCA 103,  (Davis J).
 Transcript of proceedings, T1-11 l32.
- Published Case Name:
Schafer v Commissioner of Police
- Shortened Case Name:
Schafer v Commissioner of Police
 QCA 292
Sofronoff P, Philippides JA, North J
10 Dec 2019
No Litigation History