McDonald v Queensland Police Service

This interesting recent matter considered the nature of an application for leave to appeal from the District Court in its appellate jurisdiction to the Court of Appeal. The issue was whether the appeal is confined to an error of law. The Court of Appeal provides a neat summary of the relevant principles, including that the appeal is an appeal in the strict sense not by way of rehearing, and the appeal to the Court is not limited to errors of law.

Fraser and Philippides JJA and Bowskill J

1 November 2017

This interesting recent matter involved an applicant who had been convicted of serious assault of a police officer (by spitting saliva and blood) and sentenced accordingly. [2], [6]. He sought to appeal on numerous grounds, none of which the Court deemed meritorious. His prior appeal to the District Court had similarly been dismissed on the basis that none of the grounds of appeal had substance. [8].

Leave to appeal

Although the Court would not have granted leave, the Court noted that it was necessary to address the “uncertainty” as to the nature of the appeal right.  The statement of principle in Pickering v McArthur [2005] QCA 294, [3] dictates that leave will generally only be granted in circumstances where an appeal is considered necessary to correct a substantial injustice, and there is a reasonable argument that there is an error to be corrected. [24]. Both defects must be apparent – the mere fact that error may be detected in the judgment below is not ordinarily sufficient to justify the granting of leave to appeal: see ACI Operations Pty Ltd v Bawden [2002] QCA 286. [27].

In considering the scope of its jurisdiction the Court also importantly observed that an appeal to the Court from the District Court in its appellate jurisdiction under s 118(3) is not predicated upon the existence of errors of law: see Burke v Commissioner of Police [2016] QCA 184, [2] and [6] per McMurdo P; see also Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, [43], [45], [47]–[49] per McMurdo JA.  In that regard, it further clarified that it is incorrect that Gobus v Queensland Police Service [2013] QCA 172, [3]–[5] is oft cited as authority for the proposition that an appeal is limited to errors of law – but a careful analysis of the decision indicates that it is not authority for that proposition. [32].  The Court’s summary of the relevant principles is set out at [39].

The proposed grounds of appeal

Whilst an array of grounds were raised on appeal, in the Court’s view none demonstrated any error requiring its intervention to avoid a substantial injustice. [69]. In particular, the Court did not agree that there was any merit in the suggestion that there had been any error in finding that the Magistrate had considered and rejected the defence of accident, [49] pithily noting that both the Magistrate and District Court judge had given detailed reasons about the issue and independently considered the evidence and issues of credibility as a whole. [51]–[55].

A de Jersey