May v Queensland Police Service
[2023] QCA 188
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- Unreported Judgment
- May v Queensland Police Service[2023] QCA 188
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May v Queensland Police Service[2023] QCA 188
May v Queensland Police Service[2023] QCA 188
SUPREME COURT OF QUEENSLAND
CITATION: | May v Queensland Police Service [2023] QCA 188 |
PARTIES: | MAY, Natalie Bianka (applicant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | CA No 222 of 2022 CA No 323 of 2021 DC No 985 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Criminal |
ORIGINATING COURT: | Court of Appeal at Brisbane – [2022] QCA 121 (Mullins P) |
DELIVERED ON: | 15 September 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Flanagan and Boddice JJA and Bradley J |
ORDER: | Application for leave to appeal be refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant appeared in person before an acting magistrate on a stealing charge – where, during the course of the hearing, the applicant addressed the court in a manner which was not only discourteous, but ultimately disruptive of the proceedings – where this resulted in the acting magistrate ordering that the applicant be detained pursuant to s 40 of the Justices Act 1886 (Qld) – where the applicant physically resisted the prosecutor’s carrying out of the acting magistrate’s order to take the applicant into custody – where the applicant was charged with obstruct police officer – where, after trial before another magistrate, the applicant was convicted of obstruct police officer – where the applicant was late in filing the notice of appeal to the District Court – where the applicant applied for an adjournment of the hearing in the District Court – where the District Court judge refused the adjournment and refused to extend the time for the appeal due to the poor prospects of the appeal – where the applicant was refused leave to appeal the orders of the District Court judge by a single judge of appeal – where the applicant appeals that decision – where the applicant’s application for leave to appeal should be regarded as an application for a re-hearing of her application for leave to appeal the decision of the District Court judge – whether the District Court judge erred in concluding that there were poor prospects of a successful appeal Justices Act 1886 (Qld), s 40, s 222 Police Powers and Responsibilities Act 2000 (Qld), s 615, s 790, s 796 DBX v TAT & Anor [2021] QCA 242, considered Forrest v Commissioner of Police [2017] QCA 132, cited May v Commissioner of Police [2021] QDC 275, related May v Queensland Police Service [2022] QCA 121, related McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited |
COUNSEL: | No appearance for the applicant, the applicant’s submissions were heard on the papers S L Dennis for the respondent, the respondent’s submissions were heard on the papers |
SOLICITORS: | No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent |
- [1]THE COURT: On 10 December 2021 the applicant filed an application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal the judgment of Judge Burnett DCJ made 15 October 2021. His Honour dismissed an appeal by the applicant pursuant to s 222 of the Justices Act 1886 (Qld) in relation to her conviction by Magistrate Payne of one charge of obstruct police officer.[1]
- [2]The application for leave to appeal was heard by Mullins P on 9 June 2022. Section 118(7) of the District Court of Queensland Act provides that a single judge of the Court of Appeal may grant or refuse such leave. On 12 July 2022, Mullins P refused the application for leave to appeal and published reasons.[2]
- [3]On 15 August 2022 the applicant filed a notice of application for leave to appeal pursuant to s 118. This document identified 20 grounds of appeal in relation to the judgment of Mullins P. As is apparent from the decision of this Court in DBX v TAT & Anor,[3] the application for leave to appeal heard by Mullins P was an application mentioned in r 104 of the Criminal Practice Rules 1999 (Qld). Rule 106(1) provides that where such an application is refused, the applicant “may apply to the court for the application to be reheard by the court”. It follows that the applicant’s application for leave to appeal filed 15 August 2022 should be regarded as an application for a re-hearing of her application for leave to appeal the decision of Burnett DCJ.
- [4]As observed by Henry J with whom McMurdo JA and Boddice J agreed:[4]
“The issue then is not whether the applicant can establish any error in the President’s reasons but whether it is appropriate in the circumstances of this case for this court to grant leave to appeal the District Court decision.”
- [5]The applicant has returned to Germany. Apart from filing the application for leave to appeal on 15 August 2022, the applicant has not otherwise filed an outline of submissions or other written material in support of the present application for leave to appeal. A four page outline of submissions has been filed by the respondent.
- [6]The application for leave to appeal filed 15 August 2022 was set down for hearing on 11 July 2023. The application was adjourned to a date to be fixed due to the applicant’s illness and inability to participate, even remotely, in the hearing of the application for leave. No medical evidence was presented by the applicant to support her absence. She had however, informed the registry by email that she was unwell and unable to attend the hearing. The applicant communicated to the registry that she wished to rely on both her written and oral submissions she filed and made before the President.
- [7]The matter was reviewed by Flanagan JA on 25 July 2023. Prior to this review, the applicant was advised by the registry that should she fail to appear at the review, the Court would proceed to determine her application on the papers by reference both to her written and oral submissions filed and made before the President.
- [8]On the morning of the review, the applicant advised the Registry that she was “unable to attend the hearing via telephone due to sudden sickness” and requested that the review proceed in her absence. Again, no medical evidence was presented to support this request.
- [9]On 25 July 2023, Flanagan JA directed that the application for leave to appeal filed 15 August 2022 be determined on the papers.
The applicant’s application for leave to adduce evidence
- [10]Before Mullins P the applicant applied for leave to adduce evidence in the form of her affidavit affirmed on 31 May 2022. The President refused the application. The applicant did not seek to renew this application before this Court. Even if such an application had been renewed it ought to be refused for the reasons given by Mullins P.[5]
The relevant background circumstances
- [11]The relevant circumstances in which the charge of obstruct police officer was laid, are set out in [5] to [14] of the reasons of Mullins P. So too are the relevant aspects of the decision of Magistrate Payne from which the applicant appealed to Burnett DCJ pursuant to s 222 of the Justices Act.[6] The Court has satisfied itself as to the accuracy of these paragraphs of the judgment of Mullins P.
- [12]In brief, the applicant and her husband had been charged with stealing. That charge was listed for trial in the Mossman Magistrates Court on 12 October 2017. The applicant and her husband appeared for themselves. At the outset of the trial before an acting magistrate, the police prosecutor sought to amend the particulars of the ownership of the goods. The applicant opposed this application stating that she was not ready for trial and wished to call witnesses from Europe. As described by Burnett DCJ during the course of the hearing,[7] the applicant addressed the court in a manner which was not only discourteous, but ultimately disruptive of the proceedings. This resulted in the acting magistrate ordering that the applicant be detained pursuant to s 40 of the Justices Act. The police prosecutor sought to detain the applicant and effected arrest in accordance with the order made by the acting magistrate. The applicant resisted the arrest and otherwise obstructed police in the course of effecting the arrest. Another police officer was involved in assisting the police prosecutor in his attempts at arrest.
- [13]The trial was adjourned. At a subsequent proceeding, the applicant apologised to the acting magistrate who determined not to take any further action pursuant to s 40 and discharged the applicant in respect of the contempt proceeding. The applicant was however, charged by police for obstructing a police officer.
- [14]The trial of this charge was heard before Magistrate Payne on 8 and 9 August 2019. The applicant was represented by a lawyer. The applicant was found guilty of the charge in contravention of s 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld). Magistrate Payne discharged the applicant absolutely with no conviction recorded. The effect of the reasons given by Magistrate Payne are accurately set out in the judgment of Mullins P.[8]
The reasons of Burnett DCJ
- [15]As well as considering the appeal, the learned primary judge was required to also deal with two applications, an application for leave to extend time and an application for an adjournment. The application for an extension of time was required because the applicant filed her notice of appeal on 27 March 2020, which was approximately 16 days out of time. His Honour refused both applications and dismissed the appeal. The primary basis upon which an extension of time was refused and the appeal dismissed was his Honour’s assessment of the applicant’s prospects of success on the appeal. His Honour assessed those prospects as “poor”.[9]
- [16]In refusing the application for leave to extend time, his Honour noted that although only a short period of extension was required, no reasonable basis or excuse had been proffered by the applicant for the delay and the merits of the appeal were so poor as not to warrant an extension of time. These are the relevant considerations for the purposes of determining whether an extension of time should be granted.[10]
- [17]In refusing the application for an adjournment, his Honour noted that the s 222 appeal had progressed slowly. Written submissions were exchanged well after 12 months following the delivery of the notice of appeal. On 10 August 2021, the applicant informed the registry that the appeal could be set down for 8 October 2021. The registrar had made a number of previous attempts to have the appeal set down. A formal notice of hearing advising the date for the hearing of the appeal and the consequence of non-appearance was sent to the parties by the registrar on 11 August 2021. On 27 September 2021, the applicant applied (by email) for an adjournment on the basis that she would not have access to a reliable telephone or internet connection due to the fact that she was travelling on a sailing yacht between Fiji and Europe and would not reach her destination until the end of December 2021. She sought an adjournment to January 2022 or later. This adjournment application was opposed by the respondent. On 5 October 2021, the applicant renewed her application for an adjournment but was informed that the matter remained listed and she had leave to appear at the hearing by telephone. Ultimately, at the hearing there was no appearance by the applicant. In refusing the application for an adjournment, his Honour had regard to the following matters. First, he assessed the applicant’s prospects of appeal to be poor. The applicant had not applied for an adjournment prior to embarking upon her travels. Further, she had already filed a comprehensive 17 page outline of written submissions. His Honour also considered that there was a public interest in the proceedings being brought to a conclusion.
- [18]In considering the appeal, his Honour commenced by identifying the relevant test in Forrest v Commissioner of Police[11] that a s 222 appeal is by way of re-hearing and requires the appellate court to decide the case for itself. The appellate court hearing an appeal by way of re-hearing must conduct a real review of the evidence and make up its own mind about the case. In this respect, his Honour observed that prior to the hearing of the appeal, he had read and reviewed all of the material, except for the audio recording of the proceedings below. It is however apparent from a number of paragraphs in his Honour’s reasons, that he did listen to the audio recording of 12 October 2017 prior to delivering his reasons.[12] As correctly observed by Mullins P:[13]
“What the District Court judge stated at the commencement of [21] of the reasons was to the effect that it was prior to the appeal that he had not listened to the audio recording of the proceeding on 12 October 2017. His Honour reserved his decision and it is apparent from the reasons that he used the opportunity to listen to the audio recording, before giving judgment.”
- [19]Burnett DCJ then dealt with the applicant’s ground of appeal which alleged that Magistrate Payne erred in finding as a matter of law that she could not review the decision of the acting magistrate and further erred in finding that the level of force was not excessive. His Honour, in rejecting these grounds of appeal, undertook a detailed analysis of the evidence of the surrounding circumstances of the charge.[14] His Honour considered that the applicant’s submission that Magistrate Payne had the jurisdiction to review the decision of the acting magistrate made pursuant to s 40 of the Justices Act was “misconceived”.[15] In any event, his Honour did not consider the order made by the acting magistrate pursuant to s 40 as being unlawful. His Honour was also of the view that the exercise of the power to arrest the applicant under s 796 of the Police Powers and Responsibilities Act was lawful. His Honour was satisfied that the acting magistrate gave a lawful direction for the arrest of the applicant and accordingly the requirements of s 796(2) had been satisfied. This sub-section provides that it is the duty of a police officer to comply with any lawful direction, request, or order of the tribunal and any reasonable request the judge or other presiding officer may lawfully make.
- [20]Burnett DCJ also dismissed the applicant’s ground of appeal that Magistrate Payne erred in finding the level of force was not excessive. His Honour referred to s 615(1) of the Police Powers and Responsibilities Act, which provides that it is lawful for a police officer exercising or attempting to exercise a power under that Act against an individual to use reasonably necessary force to exercise the power. His Honour recorded that the evidence of Constable Mitchell was that the escalation of force by him was in response to the applicant’s escalation of resistance. Constable Mitchell’s initial force constituted touching of the applicant to signify the arrest which was accompanied by a statement that he was placing the applicant under arrest. In response, the applicant braced herself and refused to be moved from her seat. Her resistance was such that once officers and others came to Constable Mitchell’s aid, matters continued to escalate. Burnett DCJ was satisfied from the evidence that the level of force applied in the arrest was reasonable and appropriate and was not excessive. His Honour therefore upheld the findings of Magistrate Payne.
- [21]While an issue of self-defence was raised by the applicant before Burnett DCJ, this had not been raised in the trial before Magistrate Payne. In any event, his Honour found that no issue of self-defence could arise as the arrest itself was lawful.
The applicant’s written submissions before Mullins P
- [22]In her written submissions, the applicant identified a number of alleged errors committed by Burnett DCJ. These errors suggest a failure on the part of his Honour to consider various sections of the Criminal Code, including ss 23, 24, 25 and self-defence under s 271. The applicant also referred to sections of the Police Powers and Responsibilities Act, in particular s 633 which deals with safeguards for oral directions or requirements as well as a police policy in relation to the situational use of force. The relevance of these various sections of the Criminal Code and policies are explained by the applicant in the conclusion to her written submissions:
“The grounds for appeal as noted above prove that [the applicant] was unlawfully treated and arrested. They also prove [the applicant] was not given any proper warning in court by the Magistrate. The audio recordings do not convince a fair minded and informed observer of a fair trial and proceedings. The section quoted from the Criminal Code 1899, the OPM and the PPRA of the Queensland Police Service underline the must of communication throughout any interaction between the police and the public and the aim to avoid physical force and the necessity to give warnings and explanations for laws and offences. They prove that Constable Mitchell failed to aim to avoid physical force, failed to give proper warnings, explanations and failed to communicate before using physical force.”
The applicant’s oral submissions before Mullins P
- [23]The applicant only made brief oral submissions before the President as she had set out her submissions in writing. The applicant’s oral submissions before the President were primarily directed to the receipt of further evidence and did not advance her submissions beyond that which had been reduced to writing.
Consideration
- [24]The relevant principles for a consideration by this Court of an application for leave to appeal pursuant to s 118(3) of the District Court Act were considered by Bowskill J (as her Honour then was) in McDonald v Queensland Police Service.[16] The court’s discretion to grant or refuse leave to appeal is unfettered and is exercisable according to the nature of the case, but leave to appeal will not be given lightly, as the applicant has already had the benefit of two judicial hearings. 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.[17] A factual finding of a District Court judge 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.
- [25]The applicant has failed to establish any error on the part of Burnett DCJ which would warrant the grant of leave. First, his Honour’s decision to refuse an adjournment constituted a sound exercise of discretion. The matter was not set down for hearing before Burnett DCJ until the applicant’s availability had been ascertained. His Honour was able to proceed in the absence of the applicant in circumstances where the applicant, having failed to appear, had previously filed a 17 page outline of submissions. In considering those submissions, his Honour was entitled to conclude that the prospects of appeal were poor. It was this assessment that also founded his Honour’s exercise of discretion in refusing the application for an extension of time.
- [26]The applicant did not seek judicial review or seek any form of prerogative relief in relation to the decision of the acting magistrate that the applicant be taken into custody. Until a court of competent jurisdiction declared that the order of the acting magistrate for the purposes of s 40(3)(b) of the Justices Act was unlawful, it constituted a lawful order. The order therefore authorised Constable Mitchell to proceed on the basis that he was authorised to arrest the applicant.
- [27]Nor has any error been demonstrated in his Honour’s finding that the force used was reasonable. This finding was based on his Honour’s review of the relevant evidence before Magistrate Payne. His Honour considered that everything that followed upon the immediate act of arrest by Constable Mitchell escalated in response to the level of resistance being offered by the applicant. His Honour was satisfied on the evidence that the level of force applied in the arrest was reasonable and appropriate. His Honour further endorsed the factual finding of Magistrate Payne that the force used was not excessive.
- [28]As to the applicant’s reliance on ss 23, 24, 25 and 271 of the Criminal Code in her submissions before Mullins P, such reliance is misplaced as none of these defences were raised in the course of the trial before Magistrate Payne.
Disposition
- [29]The following order should be made:
- Application for leave to appeal be refused.
Footnotes
[1]May v Commissioner of Police [2021] QDC 275.
[2]May v Queensland Police Service [2022] QCA 121.
[3] [2021] QCA 242.
[4]DBX v TAT & Anor [2021] QCA 242, [16].
[5]May v Queensland Police Service [2022] QCA 121, [29].
[6]May v Queensland Police Service [2022] QCA 121, [15]–[20].
[7] [2021] QDC 275, [3].
[8]May v Queensland Police Service [2022] QCA 121, [15]–[20].
[9]May v Commissioner of Police [2021] QDC 275, [19].
[10]R v Tait [1999] 2 Qd R 667, 668.
[11] [2017] QCA 132.
[12]May v Commissioner of Police [2021] QDC 275, [2], [3], [21], [24] and [27].
[13]May v Queensland Police Service [2022] QCA 121, [24].
[14]May v Commissioner of Police [2021] QDC 275 [26]–[34].
[15]May v Commissioner of Police [2021] QDC 275, [40].
[16] [2017] QCA 255.
[17]McDonald v Queensland Police Service [2017] QCA 255, [39] (Fraser and Philippides JJA agreeing).