Grealy v Queensland Police Service

[2006] QCA 445

SUPREME COURT OF QUEENSLAND

CITATION:

Grealy v Queensland Police Service [2006] QCA 445

PARTIES:

THOMAS GREALY
(appellant/applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

CA No 223 of 2006
DC No 1629 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2006

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - application for leave under section 118(3) District Court of Queensland Act 1967 (Qld) - applicant convicted in Magistrates Court following summary trial for assault occasioning bodily harm - applicant released upon entering into a recognisance for eight months - no conviction recorded - applicant appealed to the District Court against that order - applicant argued self-defence - whether there is a reasonable argument that the decision sought to be challenged is affected by error and whether the applicant will suffer a substantial injustice if the error is not corrected

Johnstone v Knight [2006] QCA 322; Appeal No 4389 of 2006, 30 August 2006, cited
Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited

COUNSEL:

T L Williamson for the applicant
M J Copley for the respondent

SOLICITORS:

Ian W Bartels & Associates for the applicant

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:  On 8 April 2005, the appellant was convicted in the

Magistrates Court at Brisbane following a summary trial for

the offence of assault occasioning bodily harm.  The offence

of which the applicant was convicted occurred in a brawl

outside a nightclub in the early hours of 21 November 2004.

The applicant was released upon entering into a recognisance

in the amount of $420 for a period of eight months.  No

conviction was recorded.

The appellant appealed to the District Court against that

order on the ground that the learned Magistrate had erred in

failing to entertain a reasonable doubt that the applicant

acted in self-defence.  That appeal was dismissed.  The

applicant now seeks leave to appeal to this Court pursuant to

s 118(3) of the District Court of Queensland Act 1967 (Qld).

The application for leave was filed two days out of time.

This difficulty may be put aside for the moment.  It would not

be insurmountable if the case were otherwise one which was

suitable for the grant of leave.  It is well established that

leave to appeal will usually be granted only where there is a

reasonable argument that the decision sought to be challenged

is affected by error and that the applicant will suffer a

substantial injustice if that error is not corrected.  See

Pickering v McCarthur [2005] QCA 294 at [3] and Johnstone v

Knight [2006] QCA 322 at [4].

In the present case, it is difficult to see how a successful

appeal would now be likely to avoid any prejudice to the

applicant.  In any event, the decision of the learned District

Court judge is not shown to be attended with sufficient doubt

to warrant the grant of leave.

The complainant said that the applicant struck her in the head

after she had intervened in a fight between her friend and the

applicant.  She said the applicant struck her from behind.

The applicant's case was that he was acting in self-defence.

The issue then was whether he used excessive force in striking

the complainant.

The Magistrate accepted the evidence of the complainant in

this regard, supported as it was by the evidence of two yet

witnesses as to the circumstances of the assault in preference

to the evidence of the applicant and one of his friends.  The

learned District Court judge carefully reviewed all the

evidence and concluded:

"Having read the transcript and thought about the matter      for a time it seems to me that it is really impossible     to say that the learned Magistrate was wrong in reaching   that conclusion.  Admittedly he did not discuss the     evidence of Mr Banks which supported [the applicant's]       account of things but it is inherent in the reasons that      he preferred the evidence of the managers. Once the       proper approach to that element of self-defence is     understood, it is a question of fact as to whether or not      the element has been disproved by the prosecution.     That is to say, whether or not the Prosecutor has        disproved the suggestion that reasonable force was needed

to repel the attack.  The learned Magistrate has come to the conclusion that more than reasonable force was used.  In my opinion, it is not really possible to say that he was wrong in doing so.  If I may say so, some of the hesitations in the learned Magistrate's reasons show that he had a full appreciation of the need to be cautious about finding the true facts in what had been a rather confusing series of events late at night when almost all of the participants, except, I think, [the complainant], were affected by alcohol."

The applicant has seized upon a comment by his Honour that it

was not really possible to say that the Magistrate was wrong

to conclude that the applicant used more than reasonable force

against the complainant.  The applicant asserts that the

learned District Court judge failed to make his own

determination of the issues on the appeal to him, which was an

appeal by way of rehearing.  But a fair reading of his Honour's reasons shows that his Honour considered at length the factors which bore upon the likelihood that the applicant's version of events was correct and came to the view that, having regard to those matters, it was not possible to reach a different conclusion from that reached by the Magistrate.  In this regard, the evidence of several impartial eyewitnesses was, unsurprisingly, regarded as "the better evidence", as the Magistrate described it, and therefore to be given greater weight than the evidence of the applicant and his companion.  That there may be arguable differences or discrepancies in such evidence is also hardly surprising given the nature of the events in question.

The applicant has now had his case considered twice by the

courts.  He has failed to show any reason why the interests of

justice require the grant of leave to facilitate yet further

consideration of his case.  In my view, the application for

leave to appeal should be dismissed.

McMURDO P:  I agree.

FRYBERG J:  I agree.  I would add only that in my view, on the

best view of the evidence open to the applicant, it was within

the ambit of the Magistrate's judgment to make a determination

that the prosecution had proved its case beyond reasonable

doubt by reason of the applicant having responded with

excessive force.  The decision made by the District Court

judge was correct.

McMURDO P:  Treating the application as one within time, the

application for leave to appeal is refused.

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