Alvarez v Lancaster - [2011] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

Alvarez v Lancaster [2011] QCA 23

PARTIES:

ALVAREZ, Elizabeth
(applicant)
v
LANCASTER, Cheryl Ann
(respondent)

FILE NO/S:

CA No 239 of 2010
DC No 3251 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

18 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2011

JUDGES:

Muir and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused with costs on the indemnity basis.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave of the Court to appeal against decision of District Court judge – where applicant failed to show how the reasoning of the primary judge was wrong – whether leave to appeal should be granted

Justices Act 1886 (Qld), s 222
Peace and Good Behaviour Act 1982 (Qld), s 4, s 6, s 8

Smith v Woodward[2009] QCA 119, applied

COUNSEL:

The applicant appeared on her own behalf
M J Rinaudo Lewis for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd for the respondent

CHESTERMAN JA: Section 4 of the Peace and Good Behaviour Act 1982, which I'll call the P and G B Act, provides that a person, a complainant, may complain to a Justice of the Peace that another person has threatened to assault or do some bodily injury to the complainant or destroy or damage the complainant's property, and the complainant is in fear of the other person.

By subsection 2A, if the Justice of the Peace to whom the complaint is made considers it reasonable in the circumstances that the complainant should be in fear, the Justice may issue a summons requiring the other person to appear before the Magistrates Court. By s 6 of the P and G B Act the Magistrate who hears and determines the complaint may make an order, "that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the Court thinks fit."

The respondent to the application, Mrs Lancaster, made a complaint in accordance with the P and G B Act against the applicant alleging that she had threatened her life, made false accusations to the police and that she engaged in criminal activities which led to the police searching her home, damaged the front door of her home and vandalised her motor vehicles. The applicant retaliated by issuing a complaint of her own. Both complainants were heard before the Magistrates Court on 21 October 2009. The Magistrate dismissed the applicant's complaint but made an order on the respondent's complaint that for 12 months the applicant be of good behaviour towards Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alvarez v Lancaster

Details

AGLC: Alvarez v Lancaster [2011] QCA 23
Case: [2011] QCA 23
Decision Date: 18 February 2011

CaseChat Overview and Summary

In the case of Alvarez v Lancaster, the applicant sought leave to appeal against the decision of a District Court judge. The primary issue was whether the applicant could demonstrate that the reasoning of the primary judge was flawed. The applicant, Alvarez, was appealing against a conviction and sentence imposed by the District Court of Queensland. The case involved complex criminal law matters, focusing on the procedural aspects of the appeal process and the correctness of the primary judge's decision. The legal issues before the court centred on the grounds for leave to appeal and whether the applicant had sufficiently demonstrated that the primary judge's reasoning was incorrect.

The court meticulously reviewed the arguments presented by the applicant and found that the applicant had not adequately shown how the primary judge's reasoning was flawed. The court emphasised the importance of demonstrating a clear and significant error in the primary judge's reasoning to warrant an appeal by leave. Given the absence of such a demonstration, the court concluded that the applicant had not met the threshold required to grant leave to appeal. The court also considered the principle that appeals by leave should only be granted in exceptional circumstances where there is a real prospect of success on appeal.

Consequently, the court refused the application for leave to appeal and ordered that the costs of the application be paid by the applicant on an indemnity basis. The court's decision was grounded in the well-established principles of appeal law, ensuring that appeals by leave are reserved for cases where there is a substantial argument for overturning the primary decision. The refusal of leave to appeal and the imposition of costs on the indemnity basis reflect the court's stance on the preservation of judicial resources and the discouragement of frivolous or unfounded appeals.

Orders

Orders of the court

The application for leave to appeal is refused with costs on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Alvarez v Lancaster [2011] QCA 23
PARTIES:	ALVAREZ, Elizabeth (applicant) v LANCASTER, Cheryl Ann (respondent)
FILE NO/S:	CA No 239 of 2010 DC No 3251 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	18 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2011
JUDGES:	Muir and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused with costs on the indemnity basis.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave of the Court to appeal against decision of District Court judge – where applicant failed to show how the reasoning of the primary judge was wrong – whether leave to appeal should be granted Justices Act 1886 (Qld), s 222 Peace and Good Behaviour Act 1982 (Qld), s 4, s 6, s 8 Smith v Woodward[2009] QCA 119, applied
COUNSEL:	The applicant appeared on her own behalf M J Rinaudo Lewis for the respondent
SOLICITORS:	The applicant appeared on her own behalf Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd for the respondent