Storry v Commissioner of Police
[2024] QCA 98
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Storry v Commissioner of Police[2024] QCA 98
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Storry v Commissioner of Police[2024] QCA 98
Storry v Commissioner of Police[2024] QCA 98
[2024] QCA 98
COURT OF APPEAL
BOND JA
Appeal No 604 of 2021
SC No 2913 of 2017
VENETIA LOUISE STORRYApplicant
v
COMMISSIONER OF POLICEFirst Respondent
JONATHON DAVID WEIRSecond Respondent
BRISBANE
THURSDAY, 30 MAY 2024
JUDGMENT
BOND JA: On 27 July 2016, there was a collision between a car driven by Mr Weir and a car which the applicant was driving. The applicant 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).
On 1 December 2017, the applicant’s appeal to the District Court under s 222 of the Justices Act 1886 against the orders made at the Magistrates Court, was dismissed by Dearden DCJ: see Storry v Commissioner of Police [2017] QDC 282.
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.
On 16 August 2018, a Court of Appeal comprising Sofronoff P, McMurdo JA and me, heard argument on the applicant’s application pursuant to section 118(3) of the District Court of Queensland Act 1967 for leave to appeal against the decision made in the District Court: see Storry v Commissioner of Police [2018] QCA 291.
On 26 October 2018, the Court published its reasons for judgment. I wrote the principal judgment in that decision, and Sofronoff P and McMurdo JA agreed with me. The application was dismissed on two bases.
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 or fact might have made them: see Storry v Commissioner of Police [2018] QCA 291 at [6] to [10].
Second, because the applicant failed to identify the existence of any reasonable argument, that Dearden DCJ had made any reviewable factual error: see Storry v Commissioner of Police [2018] QCA 291 at [11]. Amongst the specific arguments addressed 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 Wier, the driver of the other vehicle involved in the crash. As to this, I observed (see Storry v Commissioner of Police [2018] QCA 291 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:
- 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.
- 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.
- No error is demonstrated.”
The order made by the Court of Appeal on 26 October 2018 was:
“Application for leave to appeal dismissed, with costs.”
On 15 January 2021, the applicant filed an application in the Court of Appeal which sought orders to the effect that the Court’s judgment 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.
On 16 February 2021, Sofronoff P (sitting alone) gave an ex tempore judgment which refused the application for leave to appeal. 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.”
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 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.
On 23 February 2024, the applicant filed an application seeking the following orders:
- Allow the appeal.
- Allow the fresh evidence and extension of time to appeal.
- Quash the conviction.
As filed, the application identifies the details of the judgment, the subject of the application, as a judgment dated 16 February 2021, which suggests that the application seeks to appeal from the orders made by Sofronoff P, refusing the applicant’s second application for leave to appeal pursuant to section 118(3) of the District Court of Queensland Act 1967 (Qld). On that basis, the application would have to be dismissed, because the applicant has not persuaded me that the Court of Appeal has jurisdiction to hear an appeal from such orders made by a single judge of appeal. It is convenient to refer to this characterisation of the application as “option one”.
The Court of Appeal does have jurisdiction, pursuant to s 44 of the Supreme Court of Queensland Act 1991 to entertain an application to discharge or vary judgments or orders made by single judges of appeal, but that is not the jurisdiction the applicant presently seeks to invoke. In any event, as a single Judge of appeal, I could not exercise that jurisdiction. I will come back to this. It is convenient to refer to the possibility of a s 44 application as “option two”.
On the other hand, as the respondent suggests in the respondent’s written submissions before me, the order sought by the application appeared, in fact, to relate to the orders made by the Court of Appeal on 26 October 2018, to which I have earlier referred. If that is the applicant’s intention, the application is equally problematic. There is no jurisdiction in the Court of Appeal to hear an appeal from orders made by the Court of Appeal. Again, the application would have to be dismissed. It is convenient to refer to this characterisation of the application as “option three”.
Despite the way in which the applicant has chosen to approach the Court, perhaps her true intention is really 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). It is convenient to refer to this characterisation of the application as “option four”. As to option 4:
- 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.
- 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].
- 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.
- 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.
Upon being questioned about which of the options I have outlined she truly intended to pursue, the applicant, who represented herself, was not able to provide greater clarity, save that she made it clear that she wished to pursue any avenue open to her which would permit legitimately to agitate her argument that she is now armed with material not available to her previously, which permits her to establish that there had been a miscarriage of justice below.
As presently advised, that argument seems to have two principal points. First, the exhibit 6 point, with which I dealt in my previous judgment at [23]. I note in this regard, that there is presently no transcription of that exhibit available. And, second, 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 previously by the prosecution and that its failure so to do revealed prosecutorial misconduct. The document seems to contain some transcription of statements recorded on police body cameras and made by Mr Weir and a witness to the accident, Ms Hutchinson. The applicant says that this 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.
It is not presently clear to me whether the evidence about what happened with exhibit 6 is fresh evidence or new evidence. Nor is it presently clear to me whether the QPrime evidence should be regarded as fresh evidence or new evidence. It is not clear to me whether there is any reason to infer some flaw in the prosecution’s disclosure at trial. And, regardless of that issue, I am not in a position to evaluate the significance of the QPrime evidence, either by itself or in conjunction with exhibit 6, and either to the trial or to the appeal in the District Court, let alone on any application for leave to appeal to the Court of Appeal, because no party to the application before me today has yet placed the relevant material before me. At the least, it would necessarily to place before me the appeal record which related to the 2018 appeal.
It seems to me that the course which will prove most likely to ensure that the arguments which the applicant wishes to pursue are resolved by a court which does have jurisdiction to consider them, or at least which might have jurisdiction to consider them, if there was a resolution of the issues touched upon in R v Volkov, are what I have characterised as “options two” and “option four”. It may be that there is some other basis, but none presently occurs to me. That suggests that I should not myself seek to resolve the merits of her application, but instead, I should adjourn the application to be heard by the Court of Appeal comprising three judges of Appeal, rather than a single judge of Appeal.
That course has some attractions for a further reason, namely that it will permit steps to be taken to place an appropriate appeal record before a Court of Appeal so that it may evaluate the arguments advanced as to miscarriage of justice and also the arguments that might be advanced concerning jurisdiction properly. As mentioned, that Court will at least need the appeal record which it had in 2018. It would also be preferrable if a transcription could be provided of exhibit 6, either by obtaining a transcription of the way in which it was played in the Magistrates Court, or an original transcription of the recording, as contained in the electronic medium, which is exhibit 6. Counsel for the respondent has indicated that the respondent is able to undertake that task of transcription.
For the reasons that I have advanced, the directions and orders which I make are as follows:
- The application is adjourned to the Registry.
- I direct that it be listed for consideration by a Court of Appeal comprising three Judges of Appeal and at a date to be fixed as soon as is practicable.
- I direct that the respondent prepare a transcription of exhibit 6 from the Magistrates Court proceeding.
- I direct that the Registrar make timetabling directions for the preparation of an index to the 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 address the question of jurisdiction, with a view to having the matter heard as soon as is practicable.