Grealy v Queensland Police Service
[2006] QCA 445
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- Unreported Judgment
- Grealy v Queensland Police Service[2006] QCA 445
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Grealy v Queensland Police Service[2006] QCA 445
Grealy v Queensland Police Service[2006] QCA 445
SUPREME COURT OF QUEENSLAND
CITATION: | Grealy v Queensland Police Service [2006] QCA 445 |
PARTIES: | THOMAS GREALY |
FILE NO/S: | CA No 223 of 2006 DC No 1629 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED EX TEMPORE ON: | 3 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 November 2006 |
JUDGES: | McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal dismissed |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - application for leave under section 118(3) District Court of Queensland Act 1967 (Qld) - applicant convicted in Magistrates Court following summary trial for assault occasioning bodily harm - applicant released upon entering into a recognisance for eight months - no conviction recorded - applicant appealed to the District Court against that order - applicant argued self-defence - whether there is a reasonable argument that the decision sought to be challenged is affected by error and whether the applicant will suffer a substantial injustice if the error is not corrected Johnstone v Knight [2006] QCA 322; Appeal No 4389 of 2006, 30 August 2006, cited Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited |
COUNSEL: | T L Williamson for the applicant M J Copley for the respondent |
SOLICITORS: | Ian W Bartels & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent |
KEANE JA: On 8 April 2005, the appellant was convicted in the Magistrates Court at Brisbane following a summary trial for the offence of assault occasioning bodily harm. The offence of which the applicant was convicted occurred in a brawl outside a nightclub in the early hours of 21 November 2004.The applicant was released upon entering into a recognisance in the amount of $420 for a period of eight months. No conviction was recorded.
The appellant appealed to the District Court against that order on the ground that the learned Magistrate had erred in failing to entertain a reasonable doubt that the applicant acted in self-defence. That appeal was dismissed. The applicant now seeks leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).
The application for leave was filed two days out of time. This difficulty may be put aside for the moment. It would not be insurmountable if the case were otherwise one which was suitable for the grant of leave. It is well established that leave to appeal will usually be granted only where there is a reasonable argument that the decision sought to be challenged is affected by error and that the applicant will suffer a substantial injustice if that error is not corrected. See Pickering v McCarthur [2005] QCA 294 at [3] and Johnstone v Knight [2006] QCA 322 at [4].
In the present case, it is difficult to see how a successful appeal would now be likely to avoid any prejudice to the applicant. In any event, the decision of the learned District Court judge is not shown to be attended with sufficient doubt to warrant the grant of leave.
The complainant said that the applicant struck her in the head after she had intervened in a fight between her friend and the applicant. She said the applicant struck her from behind. The applicant's case was that he was acting in self-defence. The issue then was whether he used excessive force in striking the complainant.
The Magistrate accepted the evidence of the complainant in this regard, supported as it was by the evidence of two yet witnesses as to the circumstances of the assault in preference to the evidence of the applicant and one of his friends. The learned District Court judge carefully reviewed all the evidence and concluded:
"Having read the transcript and thought about the matter for a time it seems to me that it is really impossible to say that the learned Magistrate was wrong in reaching that conclusion. Admittedly he did not discuss the evidence of Mr Banks which supported [the applicant's] account of things but it is inherent in the reasons that he preferred the evidence of the managers. Once the proper approach to that element of self-defence is understood, it is a question of fact as to whether or not the element has been disproved by the prosecution. That is to say, whether or not the Prosecutor has disproved the suggestion that reasonable force was needed to repel the attack. The learned Magistrate has come to the conclusion that more than reasonable force was used. In my opinion, it is not really possible to say that he was wrong in doing so. If I may say so, some of the hesitations in the learned Magistrate's reasons show that he had a full appreciation of the need to be cautious about finding the true facts in what had been a rather confusing series of events late at night when almost all of the participants, except, I think, [the complainant], were affected by alcohol."
The applicant has seized upon a comment by his Honour that it was not really possible to say that the Magistrate was wrong to conclude that the applicant used more than reasonable force against the complainant. The applicant asserts that the learned District Court judge failed to make his own determination of the issues on the appeal to him, which was an appeal by way of rehearing. But a fair reading of his Honour's reasons shows that his Honour considered at length the factors which bore upon the likelihood that the applicant's version of events was correct and came to the view that, having regard to those matters, it was not possible to reach a different conclusion from that reached by the Magistrate. In this regard, the evidence of several impartial eyewitnesses was, unsurprisingly, regarded as "the better evidence", as the Magistrate described it, and therefore to be given greater weight than the evidence of the applicant and his companion. That there may be arguable differences or discrepancies in such evidence is also hardly surprising given the nature of the events in question.
The applicant has now had his case considered twice by the courts. He has failed to show any reason why the interests of justice require the grant of leave to facilitate yet further consideration of his case. In my view, the application for leave to appeal should be dismissed.
McMURDO P: I agree.
FRYBERG J: I agree. I would add only that in my view, on the best view of the evidence open to the applicant, it was within the ambit of the Magistrate's judgment to make a determination that the prosecution had proved its case beyond reasonable doubt by reason of the applicant having responded with excessive force. The decision made by the District Court judge was correct.
McMURDO P: Treating the application as one within time, the application for leave to appeal is refused.