Bircsak v Hamilton - [2015] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

Bircsak v Hamilton [2015] QCA 282

PARTIES:

BIRCSAK, John
(applicant)
v
HAMILTON, Peter
(respondent)

FILE NO/S:

CA No 95 of 2015
DC No 1 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Gladstone – Unreported, 23 April 2015

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2015

JUDGES:

Fraser and Philippides JJA and Bond J
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.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – OTHER MATTERS – where the applicant was charged with one count of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit – where the applicant was acquitted by the Magistrate, but that acquittal was overturned in the District Court – where the applicant appealed this decision on the basis that the charge was “fraudulent” and “based on blatant lies” – where the applicant argued that unascertained CCTV footage would support the applicant’s case – where the applicant argued that the District Court judge erred in refusing leave to lead new evidence in relation to the evidence of an unknown officer – whether leave should be granted to correct a substantial injustice

District Court of Queensland Act 1967 (Qld), s 118
Traffic Regulation 1962 (Qld), s 179
Transport Operations (Road Use Management) Act 1995 (Qld), s 79, s 80

Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited

COUNSEL:

The applicant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Bond J and the order proposed by his Honour.
PHILIPPIDES JA: I have had the advantage of reading the draft reasons of Bond J. I agree with those reasons and with the order proposed.
BOND J: The applicant before this court was charged with one count of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit under s 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 (“the Act”). That charge was heard in the Magistrates Court on 26 November 2014. The applicant represented himself.
The evidence for the prosecution may be summarized in the following manner.
First, evidence was adduced orally from Police Acting Senior Sergeant Maloney that –
(a)on 20 May 2014 when she was standing at the counter area of the Calliope police station, she saw a red car pull up near the police station;
(b)shortly thereafter she observed the applicant about a metre away from the car and then observed him stumbling towards the Calliope police station;
(c)when he arrived at the station and she had a conversation with him she observed a number of indicia that he was…

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 Bircsak v Hamilton

Details

AGLC: Bircsak v Hamilton [2015] QCA 282
Case: [2015] QCA 282
Decision Date: 18 December 2015

CaseChat Overview and Summary

Bircsak v Hamilton involved a dispute regarding a charge of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit. The applicant was acquitted by a Magistrate but subsequently had their acquittal overturned by a judge in the District Court. The applicant appealed to the court, arguing that the charge was fraudulent, based on false statements, and that unascertained CCTV footage would support their case. Additionally, the applicant claimed that the District Court judge erred by refusing leave to lead new evidence related to an unknown officer's testimony. The primary legal issue before the court was whether leave should be granted to correct what the applicant described as a substantial injustice.

The court considered the arguments presented by the applicant, including the alleged falsity of the charge and the potential impact of unascertained CCTV footage. The court also examined whether the District Court judge had correctly exercised their discretion in denying leave to present new evidence. In assessing these arguments, the court focused on the principles governing leave to appeal and the potential for substantial injustice. After careful consideration, the court determined that the applicant's arguments did not provide a sufficient basis for granting leave to appeal.

The court found that the applicant had not demonstrated a clear miscarriage of justice or a significant procedural error that warranted an appeal. The court emphasised the importance of finality in legal proceedings and the limited circumstances in which leave to appeal would be granted. Consequently, the application for leave to appeal was refused.

No further orders were made.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bircsak v Hamilton [2015] QCA 282
PARTIES:	BIRCSAK, John (applicant) v HAMILTON, Peter (respondent)
FILE NO/S:	CA No 95 of 2015 DC No 1 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Gladstone – Unreported, 23 April 2015
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 December 2015
JUDGES:	Fraser and Philippides JJA and Bond J 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.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – OTHER MATTERS – where the applicant was charged with one count of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit – where the applicant was acquitted by the Magistrate, but that acquittal was overturned in the District Court – where the applicant appealed this decision on the basis that the charge was “fraudulent” and “based on blatant lies” – where the applicant argued that unascertained CCTV footage would support the applicant’s case – where the applicant argued that the District Court judge erred in refusing leave to lead new evidence in relation to the evidence of an unknown officer – whether leave should be granted to correct a substantial injustice District Court of Queensland Act 1967 (Qld), s 118 Traffic Regulation 1962 (Qld), s 179 Transport Operations (Road Use Management) Act 1995 (Qld), s 79, s 80 Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited
COUNSEL:	The applicant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent