Cox v Commissioner of Police

[2016] QCA 320

COURT OF APPEAL

HOLMES CJ
PHILIP McMURDO JA
ANN LYONS J

CA No 156 of 2016
DC No 45 of 2015
DC No 67 of 2015

COX, David Merton George Applicant

COMMISSIONER OF POLICE Respondent

BRISBANE

TUESDAY, 29 NOVEMBER 2016

JUDGMENT

HOLMES CJ: Mr Cox seeks leave under s 118 of the District Court Act to appeal against a decision of a District Court judge which upheld a Magistrates Court decision finding him guilty of a breach of a bail undertaking condition.

The condition in question was one which prohibited Mr Cox from contact with staff of the Breakfree Resort where he lived. On 9 May 2016 his appeal was dealt with in the District Court. The evidence before the magistrate had been that he had spoken to some staff about the slamming of a door and had held a lift door for a brief period, preventing a staff member from leaving. That evidence was not, in fact, disputed in the Magistrates Court hearing. Mr Cox there raised issues of provocation and his own ignorance of the meaning and effect of the condition in the bail undertaking. Similar points were made in the District Court. The District Court judge found, as seems to have been inevitable on the evidence, that the case was made out. However, he did alter the sentence imposed on Mr Cox. The ultimate result was that there was no conviction recorded and no penalty imposed, but Mr Cox was required to pay $250 in costs of the proceeding below.

Here, Mr Cox says, I should say in the first place, that he is not ready to argue his application for leave to appeal properly because he has been in custody for some weeks and has not had the Appeal Record. However, the judgment of the District Court was given on May 2016. Mr Cox was present when it was given. Had he sought promptly to obtain a transcript, it is difficult to see why he would not have obtained it before he went into custody, and there seems no basis, particularly in circumstances where there is no indication of any error in the judgment below, to adjourn to allow this matter to be the subject of further submissions by him.

His submissions made today are that the staff members of the Breakfree Resort appeared to be trying to provoke him. He had no idea that speaking amounted to contact for the purposes of the bail undertaking. He should, he says, have been given the benefit of the doubt because he had recently at the time of the incident lost his wife to cancer and he was suffering from depression. None of those things are indicative of any error in the District Court judgment. They are all matters relevant to penalty, which clearly were taken into account in that regard because, in effect, there was no penalty imposed on Mr Cox.

This is not an appropriate case for the grant of leave to appeal. There is no indication of any error in the District Court judge’s judgment and the penalty imposed was, as I say, effectively non-existent, although Mr Cox complains, logically enough, that the breach will be held against him in future proceedings. Neither error of law nor manifest injustice being shown, there is no basis to grant the application for leave to appeal. I would refuse the application.

PHILIP McMURDO JA: I agree.

ANN LYONS J: I agree.

HOLMES CJ: The application for leave to appeal is refused. We will adjourn.

CaseChat Overview and Summary

In the case of Cox v Commissioner of Police, the applicant, Mr Cox, sought leave to appeal a decision of the District Court, which upheld a Magistrates Court decision finding him guilty of breaching a bail undertaking condition. The specific condition in question prohibited Mr Cox from contacting staff at the Breakfree Resort where he resided. The District Court judge upheld the Magistrates Court finding that Mr Cox had violated this condition by speaking to staff about a door slamming incident and by holding a lift door for a brief period, thereby preventing a staff member from leaving. Although Mr Cox did not dispute the evidence presented, he argued that the staff members were provoking him and that he was unaware that speaking amounted to contact as per the bail undertaking. Additionally, he raised issues of personal distress due to the recent loss of his wife and his own depression. Despite these arguments, the District Court judge altered the sentence imposed, resulting in no conviction recorded, no penalty imposed, and Mr Cox being required to pay $250 in costs of the proceeding below.

The primary legal issue before the Court of Appeal was whether Mr Cox’s application for leave to appeal should be granted. The Court considered whether there was any indication of error in the District Court judge’s judgment and whether manifest injustice had occurred. Mr Cox’s contention that the staff members were provoking him, his lack of understanding of the bail condition, and his personal circumstances did not constitute grounds for error in the District Court judgment. These were factors relevant to the penalty imposed, which was effectively non-existent. The Court of Appeal also noted that Mr Cox had been present when the judgment was delivered and had ample opportunity to obtain a transcript if he wished to pursue his appeal. Given that no error of law or manifest injustice was shown, the Court found no basis to grant the application for leave to appeal.

The Court of Appeal, comprising Holmes CJ, Philip McMurdo JA, and Ann Lyons JA, unanimously agreed that the application for leave to appeal should be refused. The reasoning was grounded in the absence of any demonstrated error in the District Court judgment and the minimal impact of the penalty imposed on Mr Cox. Consequently, the application for leave to appeal was dismissed, and the matter was adjourned. This decision underscores the importance of adhering to procedural requirements and the need to demonstrate clear error or injustice to successfully appeal a lower court’s decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established