Storry v Commissioner of Police
[2024] QCA 209
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Storry v Commissioner of Police[2024] QCA 209
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Storry v Commissioner of Police[2024] QCA 209
Storry v Commissioner of Police[2024] QCA 209
SUPREME COURT OF QUEENSLAND
CITATION: | Storry v Commissioner of Police [2024] QCA 209 |
PARTIES: | STORRY, Venetia Louise (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 604 of 2021 DC No 1344 of 2017 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2017] QDC 282 (Dearden DCJ) |
DELIVERED ON: | 5 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 July 2024 |
JUDGES: | Bond JA and Wilson and Hindman JJ |
ORDER: | The application for an extension of the time within which to advance a further application for leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – OTHER MATTERS – where the applicant brought a s 222 appeal under the Justices Act 1886 to the District Court – where the applicant then unsuccessfully sought leave to appeal under s 118(3) of the District Court of Queensland Act – where the applicant then subsequently unsuccessfully sought orders setting aside the refusal of leave and a rehearing of that application – where the applicant then sought a further application for leave to appeal under s 118(3) – where the applicant required an extension of time within which to bring that application –whether the merits of the application for leave to appeal were such as would attract an exercise of discretion to extend time to permit the applicant to advance a third application for leave to appeal against the primary decision District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, cited Storry v Commissioner of Police [2017] QDC 282, related Storry v Commissioner of Police [2018] QCA 291, related Storry v Commissioner of Police [2021] QCA 230, related Storry v Commissioner of Police [2024] QCA 98, related |
COUNSEL: | The applicant appeared on her own behalf S L Dennis for the respondent |
SOLICITORS: | The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]BOND JA: The applicant must be treated as having sought an extension of time within which to bring a third application for leave to appeal a 2017 District Court decision which had dismissed her appeal from a 2016 Magistrates Court conviction for the offence of failure to give way at an intersection. For reasons which follow, the application should be refused.
The procedural history
- [2]On 27 July 2016, there was a collision between a car driven by a Mr Weir and a car driven by the applicant. The applicant, who was represented by counsel at the trial, was subsequently convicted in the Brisbane Magistrates Court of the offence of failure to give way at an intersection, governed by a stop sign, contrary to regulation 67(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). The applicant was fined $475 and ordered to pay court costs and witnesses expenses.
- [3]On 1 December 2017, the applicant’s appeal to the District Court under s 222 of the Justices Act 1886 (Qld) against the orders made at the Magistrates Court, was dismissed by Dearden DCJ: see Storry v Commissioner of Police [2017] QDC 282. The applicant was represented by counsel at that appeal. Pursuant to s 223 of the Justices Act, such an appeal is by way of rehearing on the original evidence, although the District Court has power to permit new evidence.
- [4]On 16 August 2018, the Court of Appeal heard argument on the applicant’s application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal against the decision made in the District Court: see Storry v Commissioner of Police [2018] QCA 291 (Storry No. 1). This was the applicant’s first application for leave to appeal the 2017 decision of Dearden DCJ. The applicant represented herself before the Court of Appeal.
- [5]On 26 October 2018, the Court ordered that the application for leave to appeal be dismissed, with costs, and published its reasons for judgment. The application was dismissed on two bases.
- [6]First, because the essence of applicant’s case on appeal was to challenge the factual findings by Dearden DCJ, but the challenge was not advanced in compliance with the law. That was so because the applicant did not make any attempt to demonstrate that there was no evidence to support the findings she challenged, or to demonstrate that the findings were so unreasonable that no reasonable tribunal of fact might have made them: see Storry No. 1 at [6] to [10].
- [7]Second, because the applicant failed to identify the existence of any reasonable argument that Dearden DCJ had made any reviewable factual error: see Storry No. 1 at [11]. Amongst the specific arguments addressed and rejected in relation to that conclusion was an argument by the applicant that Dearden DCJ erred by proceeding to make a determination without having access to exhibit 6, which had been tendered at trial. Exhibit 6 was an audio recording between an investigating police officer and Mr Weir, the driver of the other vehicle involved in the crash. As to this, I observed (see Storry No. 1 at [23]):
“Third, a contention that the learned District Court judge erred by proceeding to make a determination without having access to exhibit 6 which had been tendered at trial. As to this:
- (a)The proposition that the learned District Court judge erred in stating in his reasons that he had “reviewed all of the evidence given at the trial” was not demonstrated to be false. The applicant’s contention seemed to be an inference which the applicant had drawn by reference to searches she had done, but those inferences were not compelling.
- (b)But even if the contention was true, that would not demonstrate a reviewable error for two reasons. First, exhibit 6 was a digital recording by SC Wilson of a conversation he had with Mr Weir at the scene which was played during his testimony, but no basis on which it would properly be regarded to have been admissible was identified. Second, the applicant did not identify that the recording contained anything which was material to her attempt to demonstrate reviewable error. If it had contained evidence of a previous inconsistent oral statement by Mr Weir as to the speed he was travelling, then that point would have been made at trial during the cross-examination of SC Wilson, but that did not occur, so presumably there was nothing in it to that effect.
- (c)No error is demonstrated.”
- [8]More than 2 years later, on 15 January 2021, the applicant filed an application in the Court of Appeal which sought orders to the effect that the Court’s orders of 26 October 2018 be set aside and there be a rehearing of her application for leave to appeal, pursuant to s 118(3) of the District Court of Queensland Act. This was the applicant’s second application for leave to appeal the 2017 decision of Dearden DCJ.
- [9]On 16 February 2021, Sofronoff P (sitting alone) refused the application for leave to appeal: see unreported ex tempore judgment, dated 16 February 2021 (Storry No. 2). The relevant part of his Honour’s reasons for judgment was to the following effect:
“On 26 October 2018 the Court delivered a reserved judgment refusing leave to appeal in the same matter. It is the policy of the law that matters in the Magistrates Court ought not in general become the subject of appeal to the Court of Appeal. The need for finality in matters within the Magistrates Court jurisdiction is obvious. That is why leave to appeal against the decision of a judge of the District Court is necessary for an appeal to be brought from such a Judge who has undertaken a rehearing by way of appeal of a matter in the Magistrates Court.
In general, leave to appeal will not be granted unless an important point of law or a question of general importance is raised, or unless there is a clearly arguable miscarriage of justice if a second application for leave to appeal is made.
The applicant has submitted that there is audio evidence which was not considered by the Court of Appeal when it dismissed her first application. The audio evidence, I have been informed, was led in the Magistrates Court, and its content was transcribed and was the subject of argument before the District Court Judge who heard the appeal under s 222 of the Justices Act. It is clear that the applicant wishes to re-argue factual controversies that were before the learned Magistrate.
No grounds have been shown to justify the grant of leave, particularly on a second application, and the application for leave to appeal is refused.”
- [10]As Fraser JA recorded in an ex tempore judgment of 26 October 2021 dealing with a related matter (see Storry v Commissioner of Police [2021] QCA 230), the applicant also had filed what purported to be an amended notice of appeal from the decision of the Court of Appeal on 26 October 2018. In separate reasons on 16 February 2021, Sofronoff P also ordered that the applicant’s amended notice of appeal filed on 28 January 2021 be struck out.
- [11]More than 3 years after Storry No. 2, on 23 February 2024, the applicant filed an application seeking the following orders:
- (a)Allow the appeal.
- (b)Allow the fresh evidence and extension of time to appeal.
- (c)Quash the conviction.
- (a)
- [12]The application came before me sitting alone on 30 May 2024. The applicant represented herself. She was unable to provide any clarity as to the nature of the jurisdiction which she invited the Court to exercise. As I recorded in my ex tempore reasons (see Storry v Commissioner of Police [2024] QCA 98 (Storry No. 3)), it appeared to me that there were four possible ways in which to the application could be characterized, some of which were obviously doomed to failure.
- [13]First, the application may have been an attempt to appeal from the orders made by Sofronoff P in Storry No. 2. On that basis, the application would have to be dismissed because the Court of Appeal has no jurisdiction to hear an appeal from such orders made by a single judge of appeal.
- [14]Second, the application may have been an attempt to invoke the Court of Appeal’s jurisdiction pursuant to s 44 of the Supreme Court of Queensland Act 1991 (Qld) to entertain an application to discharge or vary judgments or orders made by single judges of appeal (on this hypothesis, the decision by Sofronoff P in Storry No. 2). But as a judge of appeal sitting alone, I could not have exercised that jurisdiction.
- [15]Third, the application may have been an attempt to appeal the orders made by the Court of Appeal in Storry No 1. But if that was the applicant’s intention, the application would have to be dismissed because the Court of Appeal has no jurisdiction to hear an appeal from orders made by the Court of Appeal.
- [16]Fourth, the applicant’s intention may have been to advance to the Court of Appeal, a third application for leave to appeal from the judgment of Dearden DCJ, pursuant to s 118(3). I noted, however, that if that was the applicant’s intention, the application would face the following formidable obstacles:
- “(a)Of course, the third application would be an application brought more than 6½ years after the judgment of Dearden DCJ was published, and a little less than 4 years after the first failed application.
- (b)The relevant time period for filing an application for leave to appeal under s 118(3) appears to be 28 days: see R v Tait [1999] 2 Qd R 667; [1998] QCA 304 at [3]. It would follow that the application for leave would need to be allied with an application for an extension of time within which to bring the application. On such applications the Court’s considers, first, whether there is a good reason for the delay, and, second, whether it would be in the interests of justice to grant the extension: see R v Tait [1999] 2 Qd R 667 at 668 and Valk v Commissioner of Police [2017] QCA 126 at [12].
- (c)The question whether the Court of Appeal has jurisdiction to hear such an application is contestable. Observations made in Grierson v The King (1938) 60 CLR 431 and in R v Upson (No 2) [2013] QCA 149 would suggest there is no jurisdiction. But the contrary answer would be suggested by observations made in Postiglione v The Queen (1997) 189 CLR 295, Lowe v The Queen (2015) 249 A Crim R 362, and Gould v R [2023] NSWCCA 103. If there is jurisdiction to hear a third application for leave to appeal then undoubtedly considerations of policy concerning the application of the finality principle are strongly called into play.
- (d)Recently, in R v Volkov [2024] QCA 87, I referred with approval to observations made by Bell P in Gould, that the policy of the law is not only to prevent re-litigation of matters already litigated, but also to preclude a party from arguing in a second set of proceedings between the same parties, a point that was available to have been argued in earlier proceedings but was not so argued. Cogent reasons must be provided to underwrite any exercise of discretion to extend time so as to permit a second application for leave to appeal. A fortiori for a third application.”
- [17]Ultimately, I did not determine the application. Instead, I ordered that the application be adjourned to the Registry; made directions that it be listed for consideration by a Court of Appeal comprising three judges of appeal, and that timetabling directions be made for the preparation of an appeal record and for new submissions to the Court of Appeal to be made by reference to the material in that appeal record and which addressed the question of jurisdiction. I also ordered the transcription of exhibit 6, referred to at [7] above.
The nature of the application before the Court
- [18]The first question to be addressed is the nature of the jurisdiction which the applicant seeks to invoke. As I explained in my previous reasons, the application as filed was ambiguous and problematic.
- [19]Since the hearing before me on 30 May 2024, the applicant provided three sets of written submissions to the Court.
- [20]The first set of submissions recorded, wrongly, that I had suggested that there was possible jurisdiction to reopen the decision of Dearden DCJ. I made no such suggestion.
- [21]The second set of submissions purported to respond to the respondent’s written submissions. The respondent had suggested that the Commissioner’s understanding was that the applicant intended to advance her application as a third application for leave to appeal from the judgement of Dearden DCJ, pursuant to s 118(3). Unfortunately, the applicant’s second set of submissions did not confirm that proposition and provided no further clarity.
- [22]However, the third set of submissions did record that the applicant accepted that she was proceeding by the fourth of the options I had previously outlined.
- [23]The result is that it is now clear that the applicant seeks to have her application evaluated as a third application for leave to appeal the 2017 decision of Dearden DCJ.
- [24]An immediate problem for the applicant is that despite my making it perfectly clear in my previous reasons for judgment that any third application for leave to appeal would need to be allied with an application for an extension of time within which to bring the application, the applicant has not advanced an application for extension of time.
- [25]I propose to overlook that inexplicable procedural error and to treat the applicant as having made orally an application for an extension of time within which to bring a third application for leave to appeal from the decision of Dearden DCJ pursuant to s 118(3).
The issues which are relevant to the exercise of discretion
- [26]Logically, the next question to be addressed is whether the previous refusal of leave to appeal would create a jurisdictional bar preventing the Court from entertaining a second or subsequent application for leave to appeal against conviction. If it did, any extension of time would be futile.
- [27]As my previous judgment explained (see subparagraph (c) of the quotation at [16] above) the question of jurisdiction is a contestable one. The respondent has argued that R v Upson (No 2) should be followed. The applicant has, perhaps unsurprisingly, proved unable to provide any assistance on the issue. In that circumstance the respondent has invited the Court to reject the application without forming a final view on the question of jurisdiction, and in the same way as was done in R v Williams [2016] QCA 204; R v Manning [2023] QCA 8; and, R v Volkov [2024] QCA 87, namely by forming the view that even if there were no jurisdictional bar, the merits of the application were not such as would attract an exercise of discretion to extend time to permit the applicant to advance a third application for leave to appeal against the decision of Dearden DCJ.
- [28]I will adopt the procedural course suggested by the respondent. Accordingly, I will consider first whether the merits of the application are such as would attract an exercise of discretion to extend time to permit the applicant to advance a third application for leave to appeal against the decision of Dearden DCJ even if there is jurisdiction to consider such an application. It would only be if that question was answered in the affirmative that I would address the question of jurisdiction.
- [29]The approach which should be taken is that outlined in the judgment of McMurdo P, Thomas JA and Cullinane J in R v Tait [1999] 2 Qd R 667 at [5] (footnotes omitted):
“… 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 may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.”
- [30]In the present circumstances, and for obvious reasons, to those considerations must be added a consideration of the policy concerning the application of the finality principle and whether the applicant has provided cogent reasons to underwrite any exercise of discretion to extend time so as to permit the proposed application for leave to appeal, identified in Storry No. 3 quoted at [16] above.
Consideration of the exercise of the discretion
- [31]Storry No. 1 considered the applicant’s application for leave to appeal and examined the various arguments then suggested by the applicant as demonstrating error on the part of Dearden DCJ, concluding that the applicant had not identified any reasonable argument that there was a factual error which should be corrected.
- [32]The applicant has not provided a draft notice of appeal. Having regard to her written and oral argument she seems to have two principal points.
- [33]First, she still advances the exhibit 6 point, with which I dealt in Storry No. 1 at [23], quoted at [7] above. A transcription of that exhibit has now been prepared pursuant to my orders in Storry No. 3 and is before the Court. The applicant has not advanced any answer to this Court’s rejection of her argument in relation to exhibit 6 made in Storry No. 1. Accordingly, this argument does not seem to be a viable ground of appeal.
- [34]Second, she has now obtained a document which the applicant refers to as the “QPrime” evidence, (this is exhibit 8 to her affidavit filed 26 April 2024). That document is something which she submits was not disclosed to her by the prosecution at trial. She contends that the prosecution’s failure to disclose the document revealed prosecutorial misconduct, which denied her a fair trial in the Magistrates Court. Although there was no evidence before the Court as to the nature of QPrime, I would take judicial notice of the fact that it is a system for the electronic recording and preserving of information maintained by the Queensland Police Service. The print-out in evidence purports to be a print-out of an extract from QPrime. It purports to record entries into QPrime made after the event by a police constable. The entries seem to contain that constables’s record of what he was told by Mr Weir and a witness to the accident, Ms Hutchinson.
- [35]As to Mr Weir, the entry recorded:
“I turned right onto Dean Street and was driving along towards Elizabeth street when I saw the lady pull out in front of me. I beeped my horn and swerved by she was still coming. I think she might have accelerated or something but she hit my driver’s side door and I ended up going over a traffic island and hitting the pole on Elizabeth Street. She then ended up in the house.”
- [36]As to Ms Hutchinson, the entry recorded:
“I live at number 13 Elizabeth Street and I was driving on Elizabeth Street just behind the lady in her green car. She waited for a while, I was looking to see the cars cause she was there a while. She then pulled out into the intersection slowly and the vehicle was there, not sure if it pulled out from parking but they have hit at an angle and then she continued and got air and flew into the house.”
- [37]In my view the applicant has not demonstrated that the prosecution’s failure to disclose these QPrime entries gives rise to a conclusion that the applicant has a viable ground of appeal from the decision of Dearden DCJ. I make the following observations:
- (a)The applicant relies on Mallard v The Queen (2005) 224 CLR 125 to submit that demonstrated instances of prosecutorial non-disclosure and the suppression of material evidence may justify a conclusion that the outcome of a criminal trial is not one which can enjoy public confidence, which is another way of saying that the conviction at trial was unreasonable and unsupported by the evidence.
- (b)The existence of that principle may be accepted, but the applicant must still demonstrate the fact and materiality of the suggested prosecutorial misconduct.
- (c)In the present case, the disclosure obligations of the prosecution were those set out in relevant Magistrates Court practice directions. But the applicant did not seek to demonstrate any breach of the prosecutor’s obligations there stated. Having regard to the fact that the QPrime entries were not evidentiary in nature (as they were only a police constable’s out of court record of what he recalled that he had been told out of court), and to their anodyne contents, her decision not to essay that task is hardly surprising. Moreover, the existence of a QPrime entry which had not been disclosed was known to the applicant and her lawyers at the time the relevant police constable gave evidence at the original Magistrates Court trial, but there is no evidence that her lawyers sought access to it during the trial; or sought an adjournment of the trial.
- (d)Further, the applicant has not demonstrated the materiality of the information which she now complains about. I observe:
- (i)The applicant says that the QPrime material contains, so far as Mr Weir is concerned, some statements inconsistent with his evidence at trial, which may have been capable of being used at trial to discredit his evidence, and, so far as Ms Hutchinson was concerned, evidence which could have led to Ms Hutchinson being called by the defence at trial and improved the prospects of that defence.
- (ii)I am unpersuaded of the first proposition. In order to be used, the QPrime material could not have been admitted in evidence without complying with ss 18 and 19 of the Evidence Act 1977 (Qld) and the applicant’s ability to do that has not been demonstrated. In any event the transcript of exhibit 6 tends to demonstrate the inaccuracy of the QPrime entry. It seems to me to be most unlikely that the document could ever have been used to discredit Mr Weir in any material way.
- (iii)I am also unpersuaded of the second proposition. The applicant had a statutory declaration from Ms Hutchinson at the time of trial and she was permitted to examine the police witness by reference to its contents. She did not seek to have Ms Hutchinson called at trial, nor did she call her. And, as the respondent submits, if Ms Hutchinson had given evidence consistent with the QPrime entry that would have tended to support the prosecution case of failure to give way, rather than support the defence case. It seems to me to be most unlikely that possession of the QPrime entry would have caused a different decision to be made in relation to Ms Hutchinson.
- [38]The applicant’s present reliance on the QPrime material is merely an unpersuasive attempt to justify relitigating the Magistrates Court trial. The applicant has not identified any new argument which seems to be a viable ground of appeal from the decision of Dearden DCJ. Consideration of the principle of finality sounds strongly against any extension of time to permit a third application for leave to appeal from that decision. Even if the applicant had a good reason for a significant part of the very considerable lapse of time between the decision of Dearden DCJ and this third application for leave to appeal, I would not be minded to exercise a discretion in favour of extending the time within which to bring an application.
- [39]However the applicant has not demonstrated a good reason for the delay in bringing the application. To the knowledge of the applicant and her legal advisers, exhibit 6 was played to the Magistrates Court on the applicant’s trial. The delay in getting a transcript of exhibit 6 is not a satisfactory explanation, especially given the failure of the applicant to identify any viable appeal argument concerning the exhibit. And, as already mentioned, the applicant by her then legal representatives must have been aware of the existence of a QPrime entry at the time the relevant police constable gave evidence at the Magistrates Court trial. Yet nothing was made of the possibility at the hearing before Dearden DCJ; indeed, there is no evidence that it was requested by the applicant, or her then legal representatives, at any time prior to the hearing of the application in Storry No. 1, let alone that any such request was declined. The applicant’s outline of submissions refers to her receiving the QPrime document on the morning of a civil trial in 2020, which demonstrates that she had access to it before Storry No. 2. There is no adequate explanation for the substantial delay since then.
- [40]I conclude that the merits of the applicant’s proposed third application for leave to appeal are not such as would attract an exercise of discretion to extend time to permit the application to occur. The interests of justice are not served by giving the applicant the extension of time which she seeks.
Conclusion
- [41]The application for an extension of the time within which to advance a further application for leave to appeal should be refused.
- [42]WILSON J: I agree with Bond JA.
- [43]HINDMAN J: I agree with Bond JA.