Gobus v Queensland Police Service - [2013] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

Gobus v Queensland Police Service [2013] QCA 172

PARTIES:

GOBUS, Henry Hubert
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO:

CA No 180 of 2012
DC No 192 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

9 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGES:

Holmes and Fraser JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant was found guilty in the Magistrates Court of wilful damage – where in October 2010 the applicant filed a notice to appeal under s 222 of the Justices Act 1886 (Qld) – where the appeal was dismissed – where the applicant applied to this Court for leave to appeal – where in October 2011 leave was granted and the matter was remitted to the District Court for determination – where the appeal was reheard in the District Court at Cairns in March 2012 – where the appeal was dismissed – nature of application for leave to appeal from a re-hearing in the appellate jurisdiction of the District Court – whether leave to appeal should be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld)

District Court of Queensland Act 1967 (Qld), s 118, s 119
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 19(1)(b)

Commissioner of Police v Stehbens[2013] QCA 81, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Gobus v Queensland Police Service[2011] QCA 283, cited
Merrin v Commissioner of Police[2012] QCA 181, cited
Parsons v Raby[2007] QCA 98, cited
Pickering v McArthur[2005] QCA 294, cited
R v Ruthven[2013] QCA 142, cited
Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited
Smith v Woodward[2009] QCA 119, cited
Tsigounis v Medical Board of Queensland[2006] QCA 295, cited

COUNSEL:

The applicant appeared on his own behalf
R Griffith for the respondent

SOLICITORS

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

HOLMES JA: I agree with the reasons of North J and the order he proposes.

FRASER JA: I have had the advantage of reading in draft the reasons for judgment of North J. I respectfully agree with those reasons and would add only a reference to the statutory provisions which govern the proposed appeal to this court.

Under the District Court of Queensland Act 1967 an appeal to this court from the District Court in its original jurisdiction under s 118(3) is an appeal by way of rehearing: s 118(8). In this…

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.

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Details

Case: [2013] QCA 172
Decision Date: 9 July 2013

CaseChat Overview and Summary

The applicant, Gobus, sought to appeal against a conviction for wilful damage handed down by the Magistrates Court. The appeal process began when Gobus filed a notice to appeal in October 2010 under section 222 of the Justices Act 1886 (Qld). The appeal was initially dismissed, but Gobus applied to this Court for leave to appeal, which was granted in October 2011. The matter was then remitted to the District Court for determination. The appeal was reheard in the District Court at Cairns in March 2012, where it was again dismissed. Gobus subsequently applied for leave to appeal the decision of the District Court under section 118(3) of the District Court of Queensland Act 1967 (Qld). The central legal issue for the court to decide was whether leave to appeal should be granted in these circumstances.

The court considered the principles governing appeals from the District Court. It noted that leave to appeal from the District Court to this Court is not a matter of right but requires the leave of the Court. The court examined the circumstances under which such leave may be granted, focusing on the need to ensure that appeals are not pursued frivolously and that there is a real prospect of success on appeal. In this case, the court found that the grounds of appeal did not demonstrate a real prospect of success, and therefore, leave should not be granted. The court emphasised that it was not inclined to permit an appeal that would only serve to prolong the legal process without a reasonable chance of changing the outcome.

Accordingly, the court refused the application for leave to appeal. The court's decision was final, and the costs of the application were awarded against Gobus. This outcome reinforces the principle that appeals are not to be taken lightly and that the appellate courts will scrutinise applications for leave to ensure they are justified.

Orders

Orders of the court

Application for leave to appeal refused with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gobus v Queensland Police Service [2013] QCA 172
PARTIES:	GOBUS, Henry Hubert (applicant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO:	CA No 180 of 2012 DC No 192 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	9 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 May 2013
JUDGES:	Holmes and Fraser JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant was found guilty in the Magistrates Court of wilful damage – where in October 2010 the applicant filed a notice to appeal under s 222 of the Justices Act 1886 (Qld) – where the appeal was dismissed – where the applicant applied to this Court for leave to appeal – where in October 2011 leave was granted and the matter was remitted to the District Court for determination – where the appeal was reheard in the District Court at Cairns in March 2012 – where the appeal was dismissed – nature of application for leave to appeal from a re-hearing in the appellate jurisdiction of the District Court – whether leave to appeal should be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) District Court of Queensland Act 1967 (Qld), s 118, s 119 Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 19(1)(b) Commissioner of Police v Stehbens[2013] QCA 81, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Gobus v Queensland Police Service[2011] QCA 283, cited Merrin v Commissioner of Police[2012] QCA 181, cited Parsons v Raby[2007] QCA 98, cited Pickering v McArthur[2005] QCA 294, cited R v Ruthven[2013] QCA 142, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Smith v Woodward[2009] QCA 119, cited Tsigounis v Medical Board of Queensland[2006] QCA 295, cited
COUNSEL:	The applicant appeared on his own behalf R Griffith for the respondent
SOLICITORS	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent