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  • Unreported Judgment

Peauril v Commissioner of Police

 

[2020] QCA 44

 

[2020] QCA 44

 

COURT OF APPEAL

 

SOFRONOFF P

PHILIPPIDES JA

MULLINS JA

 

CA No 216 of 2018

DC No 2043 of 2017

 

PEAURIL, Damian Thomas Applicant

v

COMMISSIONEROFPOLICE Respondent

 

BRISBANE

 

MONDAY, 16 MARCH 2020

 

JUDGMENT

 

SOFRONOFF P:  The applicant was convicted after a trial of failing to give way and obstructing police in the execution of duty.  He appealed his convictions to the District Court and Judge McGill SC dismissed his appeal.  The applicant now seeks leave to appeal against Judge McGill SC’s decision.  An appeal to this court is not by way of rehearing.  That is to say, the Court of Appeal in a case like this does not re-examine the evidence in order to determine what findings it should make.

It is an appeal in the strict sense, meaning that the sole duty of this Court is to determine whether error has been shown on the part of the Court below.  It is not this Court’s task to decide where the truth lay as between the competing versions of the witnesses.  The Court of Appeal has no right to substitute its own findings for those of the District Court Judge.  Its function is limited to see first whether there is any evidence in support of the findings, and, secondly, whether the findings can be set aside as being against the weight of the evidence or unreasonable within the meaning of the authorities that have been discussed in High Court cases.

In this case, the applicant complains about findings made by Judge McGill SC that were not open on the evidence, which were in each case findings that were adverse to the applicant.  Many of them rested upon the adverse view that his Honour formed about the credibility of the applicant and his parents who were witnesses in the proceeding.  As the applicant correctly observes in his written outline this case was a “he said, she said situation”.  Other complaints that the applicant makes concern findings that he says were wrongly made because they rely upon false assumptions.  Thus, for example, the Judge concluded that had the applicant’s version of events been true, then the Judge would have expected there to have been skid marks on the road.

This was because, in the Judge’s view, on the applicant’s version the cars were moving sideways for a brief period.  The applicant submits that, for example, skid marks might not be left on the particular type of surface where the collision happened.  Further, he points to evidence of the presence of skid marks in the place at which he says the collision actually happened.  These are not issues that are for this Court to determine.  They were issues in the first place for the Magistrate and in the second place for Judge McGill SC.  The appeal before Judge McGill SC was an appeal by way of rehearing and his Honour had to reconsider the evidence.  His Honour did so and analysed it in a lengthy and detailed judgment.

That being so, this application cannot succeed because while the applicant submits that there are numerous material errors in the reasons of the Magistrate, and of the District Court Judge, they are not of a character that this Court has jurisdiction to inquire into.  Moreover, as has been said in previous cases, the discretion that this Court has to grant or to refuse leave to appeal is exercisable according to the nature of the case, and the mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the granting of leave.  When these tests are applied, the decision that is now attacked cannot be disturbed.

There was a preponderance of evidence that justified the Judge’s decision, as well as that of the Magistrate.  The sole question of law raised by the applicant is whether it was open to convict a person of obstructing police in the execution of duty when the offence that is said to have led to the presence of police at the scene and led to the acts of obstruction was an offence that never took place.  The answer to that proposition, obviously, is, yes.  This application should be refused.

PHILIPPIDES JA:  I agree.

MULLINS JA:  I agree.

SOFRONOFF P:  The order of the Court is that the application is refused.  The Court will make no order as to costs.

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Editorial Notes

  • Published Case Name:

    Peauril v Commissioner of Police

  • Shortened Case Name:

    Peauril v Commissioner of Police

  • MNC:

    [2020] QCA 44

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Mullins JA

  • Date:

    16 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status