Gobus v Queensland Police Service

[2011] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

Gobus v Queensland Police Service [2011] QCA 283

PARTIES:

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

FILE NO/S:

CA No 163 of 2011
DC No 192 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2011

JUDGES:

Margaret McMurdo P, White JA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 11 October 2011:
1.   Application for leave to appeal be granted.

2.    Appeal allowed.

3. Set aside the order made in the District Court and remit the matter to the District Court for determination in accordance with Pt 9, Div 1 Justices Act 1886 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the applicant was found guilty in the Magistrates Court of wilful damage – where the applicant appealed to the District Court – where the District Court judge did not determine the appeal by way of rehearing on the original evidence as required under s 223(1) Justices Act 1886 (Qld) – whether the appeal was conducted according to law – whether the application for leave to appeal should be granted and the appeal be allowed

District Court of Queensland Act 1967 (Qld), s 118(3)
Justices Act 1886 (Qld), s 222, s 223(1)

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited

COUNSEL:

The applicant appeared on his own behalf
G J Cummings appeared on behalf of the respondent

SOLICITORS:

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

THE PRESIDENT:  The applicant, Henry Hubert Gobus, was found guilty after a one day trial on 11 May 2010 in the Cairns Magistrates Court of wilful damage of a glass window on 4 January 2010 at Bayview Heights, Cairns. He was self-represented at that trial although it emerged during the trial that he had been a police prosecutor in 1990. He was sentenced to a good behaviour bond under s 19(1)(b) Penalties and Sentences Act 1992 (Qld) in the sum of $350 for six months with no conviction recorded. He was also ordered to make restitution of $897 which was referred to the State Penalties Enforcement Registry.

The applicant appealed from the magistrate's findings under s 222 Justices Act 1886 (Qld) contending that the magistrate erred in finding the prosecution evidence consistent; finding the applicant's evidence self-serving; rejecting evidence produced by the applicant; and in finding that the prosecution proved its case beyond a reasonable doubt. The appeal was heard in the District Court at Cairns on 23 May 2011 and his Honour delivered reasons on 26 May 2011.

As to the applicant's first contention, the judge set out in some detail the applicant's submissions with reference to the evidence in the Magistrates Court.  His Honour then noted:

"Matters of credit are for the tribunal of fact, and an Appeal Court will not lightly interfere with findings on credit unless it can be shown that the learned Magistrate was in error in law or in fact.  Whilst these two inconsistencies were clearly shown on the record, I fail to see how they are serious enough for me to come to the conclusion that the Magistrate was in error in law or in fact."

His Honour took a similar view in terms of the applicant's second and third contentions.  The judge concluded as to the appeal generally that he was "unable to be satisfied that the learned Magistrate has erred at law or in fact such that this Court should interfere in any way with his decision."

In his application for leave to appeal to this Court under s 118(3) District Court of Queensland Act 1967 (Qld), the applicant essentially repeated his contentions in the District Court. But Mr Cummings, for the respondent, fairly and correctly conceded that the learned District Court judge erred in that his Honour was obliged, in hearing the appeal under s 223(1) Justices Act, to conduct it as a new hearing and to make his own assessment of the evidence and form his own conclusions upon the issue of the applicant's guilt, having due regard to the findings and conclusions of the magistrate: see Fox v Percy (2003) 214 CLR 118 at [25] and Rowe v Kemper [2008] QCA 175, [5]. Clearly in this case, although the judge did carefully look at the transcript, his Honour failed to reach his own conclusion as to whether the applicant was guilty of the offence. Instead, his Honour merely noted that such a conclusion was open on the evidence.

In these circumstances, his Honour failed to conduct the appeal according to s 223(1) Justices Act and therefore failed to conduct the appeal according to law. The applicant is entitled to an appeal before the District Court conducted according to law. For those reasons, he should be given leave to appeal to this Court. I would grant the application for leave to appeal, allow the appeal, set aside the order made in the District Court and remit the matter to the District Court for determination according to Part 9 Division 1 Justices Act.  It seems to me there is no reason why the same judge, who is familiar with this matter, should not also conduct this appeal.

WHITE JA:  I agree.

McMEEKIN J:  I only want to add that the primary judge plainly undertook a very detailed analysis of the evidence and carefully examined each ground of the appeal raised.  His only error was that he asked himself the wrong question.  In saying the only error, that was a fundamental one.  Mr Gobus is entitled to an appeal according to law, as the President has said, and I agree with the orders that she proposes.

THE PRESIDENT:  The orders are as I have proposed.