R v Ruthven[2013] QCA 142

JACKSON J:  The applicant seeks to extend the time for an application for leave to appeal against the decision of the District Court of Queensland.  On the 3rd of August 2012, the applicant was convicted in Magistrates Court of Queensland at Wynnum of a single traffic offence, namely that on the 2nd of October 2011 the applicant drove a vehicle over the speed limit on Lytton Road at Lytton.  The applicant was sentenced to a fine of $350 and order to pay the court costs and witness expenses.

The applicant appealed to the District Court.  On 10 December 2012, that court ordered that the appeal be dismissed.

Section 118(3) of the District Court of Queensland Act 1967 requires that the party who is dissatisfied with the judgment of the District Court on appeal, brought before that court under s 222 of the Justices Act 1886, may appeal to the Court of Appeal with the leave of the Court of Appeal.  Rule 85 of the Criminal Practice Rules 1999 requires that notice of the application for leave to appeal must be filed within the appeal period defined in Schedule 6 to those Rules, being one calendar month after the decision appealed from.

The applicant filed his application for leave to appeal on 4 February 2013, which was 24 days late.  Thus he applies under rule 85 for an extension of time to file the application for leave to appeal.  The reason for his delay was that he was extremely busy after Christmas 2012, operating a tugboat in the Port of Brisbane, in circumstances where no other employees were able to carry out that work.

Two important issues in considering the exercise of discretion to extend time are whether there is a good reason for the delay, and whether it would be in the interests of justice to grant the extension.

If time were extended, the question for this court would be whether to grant leave to appeal under s 188(3).  As Justice Muir recently said in Shambayati v The Commissioner of Police:

“The general principle is that leave to appeal is normally granted in respect of applications made under s 118(3) of the District Court of Queensland Act 1967, where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error to be corrected.”

Putting to one side the adequacy of the applicant’s explanation for delay in filing the application for leave to appeal, the ground which he advances as to why leave for this further appeal should be granted, is that this is a case of misidentification.

What the applicant means by that is that he contends that the in-car radar detection device operated by police officer in the police car travelling towards the applicant’s vehicle on Lytton Road, detected another vehicle when the device registered that the detected vehicle was travelling at 85 kilometres per hour.

This question is clearly a question of fact, not a question of law.  The judge in the District Court dealt with it as follows, saying this:

“turning then to the real issue of this case, namely that it was not the appellant’s vehicle that was recorded but another vehicle, there was contradictory evidence about whether there was another vehicle travelling in a westerly direction at the time.  However, that is a matter that the magistrate did address, and was satisfied on the evidence that it was, in fact, the appellant’s vehicle that was recorded travelling at the speed of 85 kilometres per hour.

The fact that there was some confusion between the police officers about whether or not there was, in fact, another vehicle travelling in a westerly direction does not, in my opinion, bring into question, in any material way, the credibility of those officers or their evidence insofar as it dealt with the identification of the vehicle.  Both officers were certain and adamant that it was the appellant’s vehicle that was exceeding the speed limit.

On balance, I consider that no error has been revealed in the reasoning of his Honour in the court below…”

As Justice Margaret Wilson said in Shambayati:

“the appeal from the Magistrates Court to the District Court was brought, pursuant to s 222 of the Justices Act 1886.  Section 223 of that Act provides for a re-hearing on the evidence given at trial, and any new evidence adduced by leave.  In other words, it involves a re-hearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.  In order to succeed on such an appeal, the appellant must establish some legal, factual, or discretionary error.”

The magistrate made findings based on the view that he took of conflicting evidence as to the detection of the applicant’s car by the radar device being operated by the relevant police officer.  Both that officer and the other police officer in the car gave evidence that the applicant’s car was the only vehicle in the path of the radar device.  One of those officers said that there may have been another vehicle quite some distance in front of the applicant, but that that vehicle would have been passed him prior to detecting the applicant’s speed, so that wasn’t in the beam at all.  There was no basis to infer that there was another vehicle detected by the radar device, which was misidentified as the applicant’s car.  The magistrate found that, as follows, when he said:

“I accept the police version that there was no other vehicle in proximity to the defendant’s vehicle, that could have or would have interfered with the detection device”.

That was a finding supported by the evidence of the police officers that I’ve mentioned.  The applicant did not give evidence as to the presence of another vehicle, although he asked questions of the police to that effect.  The disputed question of fact about the identification of the applicant’s car turned on findings of fact based on the view the magistrate took of conflicting oral testimony.

In Tsigonis v The Medical Board of Queensland, Keane JA, with the agreement of Williams JA and Dutney J, said of an appeal to this Court from the dismissal of an appeal to the District Court, as follows:

“Such an appeal to this Court is an appeal is an appeal from the District Court in its appellate jurisdiction.  As a result, that appeal is an appeal in the strict sense, that is to say, the decision of the District Court is not subject to an appeal by way of rehearing.  Accordingly, it is ‘not this Court’s task to decide where the truth lay as between the competing versions … given by the parties.’  It is not open to this Court to substitute its view of the facts of the case for that of the District Court judge.  The circumstance of the appeal to this Court is confined to questions of law, so as to constrain the grant of leave to appeal in a way which is particularly significant to the present case.

Leave to appeal to this Court from the District Court will usually be granted under s 118(3) of the District Court of Queensland Act 1967 only where the decision below has occasioned substantial injustice to the applicant for leave, and where there is reasonable argument in support of the applicant’s claim to relief.  Because of the limited function of this court on appeal, in the strict sense applicable here, the latter requirement means that the applicant must be able to identify an arguable error of law in the decision below which, if corrected, would result in the correction of the substantial injustice.”

In my view, the challenge which the applicant wishes to make to the decision of the District Court in the present case would be an appeal from the findings of fact of the District Court judge on an appeal by way of re-hearing under s 222 of the Justices Act 1886, where the original appeal was by way of re-hearing on the evidence given at trial, and any new evidence adduced by leave.  That may not be a matter on which it is open to this Court to substitute its view if leave to appeal were granted.  If so, these applications might be decided on the ground that the applicant is unable to identify an arguable error of law in the decision below, which if corrected, would result in the correction of a substantial injustice.

However, in the circumstances of this case, it’s unnecessary to decide that question.  In my view, even if an appeal to this Court were open on a wider basis of factual review, the appeal would be doomed to fail having regard to the evidence and findings which I’ve mentioned.  It would be pointless to grant leave to appeal, in any event.

It’s unnecessary to go further.  The proposed grant of leave to appeal does not reveal a reasonable argument which could succeed on an appeal to this Court.

For those reasons, in my view, the application to extend the time for filing the application for leave to appeal and the application for leave to appeal should be dismissed.

FRASER JA:  I agree.

APPLEGARTH J:  I agree.

FRASER JA:  The orders of the court are that the applications are dismissed.