Connor v Commissioner of Police
[2024] QCA 217
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Connor v Commissioner of Police[2024] QCA 217
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Connor v Commissioner of Police[2024] QCA 217
Connor v Commissioner of Police[2024] QCA 217
SUPREME COURT OF QUEENSLAND
CITATION: | Connor v Commissioner of Police [2024] QCA 217 |
PARTIES: | CONNOR, Peter James (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 5 of 2024 DC No 314 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2023] QDC 235 (Devereaux SC CJDC) |
DELIVERED ON: | 12 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 October 2024 |
JUDGES: | Mullins P and Boddice JA and Crow J |
ORDER: | Application for leave to appeal refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted in the Magistrates Court of one charge of entering premises with intent and one charge of stealing property with a value exceeding $5,000 – where the applicant unsuccessfully brought a s 222 appeal under the Justices Act 1886 to the District Court – where the applicant seeks leave to appeal under s 118(3) of the District Court of Queensland Act – whether leave to appeal ought to be granted – whether there is a reasonable argument that there is any error of law District Court of Queensland Act 1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 222 Commissioner of Police v Antoniolli [2021] QCA 237, followed Lynch v Commissioner of Police (2022) 11 QR 609; [2022] QCA 166, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, followed Robertson v Robertson [2024] QCA 92, cited Woolston v Commissioner of Police [2023] QCA 152, cited |
COUNSEL: | The applicant appeared on his own behalf S McFarland for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]MULLINS P: I agree with Boddice JA.
- [2]BODDICE JA: On 9 December 2015, the applicant was convicted of one charge of entering premises with intent and one charge of stealing property with a value exceeding $5,000. He was sentenced to 12 months’ imprisonment, with a parole release date set at the date of sentence.
- [3]On 7 February 2022, the applicant filed a notice of appeal to a judge of the District Court pursuant to s 222 of the Justices Act 1886, together with an application for an extension of time within which to appeal.
- [4]On 12 December 2023, the primary judge dismissed the applicant’s application for an extension of time within which to appeal.
- [5]The applicant seeks leave to appeal that decision, pursuant to s 118(3) of the District Court of Queensland Act 1967. He contends that leave ought to be granted as it is in the interests of justice; the verdict was unreasonable and cannot be supported by the evidence; the decision was wrong in law; and there has been a miscarriage of justice.
Background
- [6]Both charges related to events at a bottle shop in Hervey Bay on 14 December 2013. On that date, two males disabled the bottle shop security system, entered the bottle shop by removing the front door using a star picket and a drill, removed the internal alarm system and a computer hard drive which recorded CCTV, and stole a substantial amount of alcohol and a small safe which was bolted to the floor of the rear storeroom. A drill and saw were used to remove that safe.
- [7]At trial in the Magistrates Court at Hervey Bay, the prosecution called nine witnesses. All were completed on the first day of trial. At the conclusion of the police case, the applicant sought to call evidence. He intended to rely on CCTV footage as alibi evidence, as well as a DNA report. As no notice of alibi had been given, the summary trial was adjourned to allow the prosecution to further investigate those issues.
- [8]Ultimately, the summary trial resumed on 9 November 2015. The applicant gave evidence, as did two other witnesses. A fourth witness was called on 9 December 2015.
Appeal below
- [9]The primary judge observed that the application for an extension of time within which to appeal was filed over six years after expiry of the time for filing of an appeal. Whilst reasons had been advanced by the applicant for that delay, none of those reasons provided a satisfactory explanation for such a lengthy delay. However, as an application may still be granted if there was a demonstrated miscarriage of justice, some degree of assessment of the strength of the evidence and of the prospects of the success of the appeal was necessary.
- [10]In undertaking that assessment, the primary judge observed that at the summary trial, sufficient evidence was led to establish that the relevant bottle shop had been broken into after the alarm system was disabled and that a significant quantity of alcohol, cash and computer equipment, together with a safe were stolen, with a value in excess of $20,000. The issue in dispute was whether the applicant was the offender.
- [11]The primary judge recorded that at the summary hearing, a significant body of circumstantial evidence was presented, which satisfied the presiding magistrate of the appellant’s guilt, beyond reasonable doubt and which upon his own review of the available record, satisfied the primary judge to the same conclusion.
- [12]That significant body of circumstantial evidence included that the applicant was an expert in security systems with the capability of disabling alarms in the manner which had occurred at the bottle shop; that the bottle shop had been locked with the alarm set the evening prior to the acts, with the telephone lines being cut thereafter, thereby disabling the alarm system; that the applicant, who worked in Brisbane, was home in Hervey Bay at the time of the offences; and that the applicant was connected with individuals associated with the bottle shop, with the offence being motivated by retribution on behalf of one of those persons, as illustrated by words written and a drawing made apparently by the intruders.
- [13]In undertaking an independent assessment of the record, the primary judge recorded that two water bottles found at the bottle shop had been the subject of DNA swabs which, upon analysis, matched with a DNA sample obtained from the applicant after he had been arrested on 6 May 2014. Further, while executing a search warrant of the applicant’s address on 6 May 2014, police seized a pair of boots of close similarity to a shoe print located in or about the area in which some wires had been cut. Whilst another individual at the same residence took ownership of those boots during the search warrant, the fact that boots found in the applicant’s residence had a footprint of close similarity to the shoe print located where the alarms were disabled, was a relevant circumstantial fact.
- [14]In addition, evidence had been led that CCTV footage provided by the applicant as an alibi, as it purported to show the applicant and his wife at home at the time of the events, could be manipulated by resetting the date and/or time on the computer to display a different date. The presiding magistrate had concluded that the evidence was fabricated, a finding which was open on the evidence as a whole.
- [15]Finally, the prosecution led evidence from part of the security team which monitored the premises. Whilst he had given evidence that he had attended the scene prior to the arrival of police, it was open to the presiding magistrate to conclude that that witness was a reliable witness and to reject the suggestion that he or someone else, contaminated the crime scene.
Leave to appeal
- [16]The principles which apply to appeals to the Court of Appeal, from judgments of the District Court and its appellate jurisdiction, are clear:[1]
“The discretion is unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicant has already had the benefit of two judicial hearings.
It will usually be necessary – but not sufficient – that the Court be persuaded that there is a reasonable argument that there is an error to be corrected, which, if corrected would justify the applicant’s claim for relief.
Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is an error to be corrected include:
- that leave is necessary to correct a substantial injustice;
- that the proposed appeal raises an important point of law or principle; and
- that the prospect appeal raises a question of general or public importance.”
- [17]If leave is granted, it is an appeal in the strict sense; it is not for the Court to substitute its own findings for those of the District Court.[2] To successfully challenge factual findings, the applicant must establish there was no evidence for such findings, or that no reasonable tribunal of fact might have made them.[3]
Consideration
- [18]Whilst the applicant submits that both the presiding magistrate and the primary judge erred in concluding that the circumstantial case established, beyond reasonable doubt, his guilt of the offences, a consideration of the primary judge’s detailed reasons supports a conclusion that there was no such error.
- [19]The primary judge undertook a careful and thorough analysis of the record to form his own conclusion, that the evidence as a whole, established beyond reasonable doubt, the appellant’s guilt of each of the offences. That process was entirely consistent with the primary judge’s obligations, when considering an appeal under s 222 and was undertaken, notwithstanding, that the applicant needed an extension of time due to a delay of many years in the filing of the notice of appeal and where there was no satisfactory reason given for that inordinate delay.
- [20]The applicant submits that the findings were findings no reasonable tribunal of fact might have made, as there was no direct link between him and the offences; there was a basis to conclude that the DNA on the water bottles had been placed there subsequently; the CCTV footage from the adjacent store, depicted a person that did not match the applicant’s description; the boots discovered at the applicant’s residence were too small for the applicant to wear; the crime scene was contaminated by persons entering it, prior to police arriving at the scene; there was no basis to conclude that the CCTV footage of the applicant and his wife at home at the same time had been fabricated, as there was evidence that the footage was genuine; he would have been unable to move that quantity of alcohol having regard to chronic back pain; and the alcohol found at his home could not be linked.
- [21]Each of the matters relied upon by the applicant was a matter placed before both the presiding magistrate, at first instance and the primary judge. Each found that there was no evidential basis to conclude that the applicant’s DNA had been placed on the water bottles subsequently; that any contamination of the crime scene adversely interfered with the evidence; and that the adjacent store’s CCTV did not exclude the applicant as the person depicted in the footage. Further, the boots found in the applicant’s residence, were never treated as boots worn by the applicant. Their relevance was that boots with a similar shoe print to that found at the scene, had been found at the residence in circumstances where there were two offenders involved in the commission of the offence. Finally, there was a sound basis to reject the evidence led by way of alibi. Not only was there evidence that the time on the CCTV could be the subject of alteration; there was evidence which established, beyond reasonable doubt, that the applicant was one of the offenders who had committed the offences in question. That evidence allowed a rejection of the accuracy of that alibi evidence, beyond reasonable doubt.
- [22]None of the findings were unreasonable. Further, it was open, on a consideration of the accepted evidence as a whole, to be satisfied of the appellant’s guilt of each of the offences, beyond reasonable doubt.
Conclusion
- [23]The applicant has not established any error that needs to be corrected. There is also no substantial injustice to the applicant.
Order
- [24]I would refuse leave to appeal.
- [25]CROW J: I agree with Boddice JA.
Footnotes
[1]Commissioner of Police v Antoniolli [2021] QCA 237 at [105] to [115] per Bond JA (with whom Flanagan J agreed) applied subsequently in Lynch v Commissioner of Police (2022) 11 QR 609; [2022] QCA 166 at [135] per Beech AJA (with whom Morrison and Bond JJA agreed); Woolston v Commissioner of Police [2023] QCA 152; 105 MVR 13 at [9] per Boddice JA (with whom Bond and Flanagan JJA agreed); Robertson v Robertson [2024] QCA 92 at [11] per Bond JA (with whom Crow and Crowley JJ agreed).
[2]McDonald v Queensland Police Service [2017] QCA 255 at [39].
[3]McDonald at [61].