Lumley v. Crime and Misconduct Commission - [2009] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

Lumley v Crime and Misconduct Commission [2009] QCA 79

PARTIES:

CHRISTOPHER EDMONSTON FERNEAUX LUMLEY
(applicant)
v
CRIME AND MISCONDUCT COMMISSION
(respondent)

FILE NO/S:

Appeal No 12675 of 2008
SC No 8241 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2009

JUDGES:

Muir and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Strike out the applicant’s notice of appeal

2.   The application is refused

3.   Applicant to pay the respondent’s costs of both proceedings, to be assessed on the standard basis

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant convicted of one count of anal rape and one count of torture – where applicant made a complaint to the Crime and Misconduct Commission (CMC) and the Police Commissioner that these charges and the subsequent convictions were occasioned by police corruption and the failure of the applicant’s lawyers to follow instructions – where the CMC refused to investigate the applicant’s complaint and the applicant applied for a statutory order of review – where the primary judge refused the applicant’s application for judicial review of the CMC’s refusal to investigate – whether the primary judge erred by misconstruing the Crime and Misconduct Act 2001 (Qld); by failing to allow the applicant to present all of his submissions; by failing to read all necessary materials; or by misdirecting himself as to the nature of a particular witness statement – whether the applicant should be given leave to appeal

Crime and Misconduct Act 2001 (Qld), s 45, s 46, s 333
Judicial Review Act 1991 (Qld), s 48

COUNSEL:

The applicant appeared on his own behalf
D T Murphy for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crime and Misconduct Commission for the respondent

MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: This matter was by consent heard together with the applicant’s appeal concerning a decision of the Commissioner of the Police Service Queensland, judgment in which is also delivered today. [1]
[1]Lumley v The Police Commissioner [2009] QCA 78.

On 10 November 2008 Dutney J acceded to the respondent Crime and Misconduct Commission’s application pursuant to s 48 of the Judicial Review Act 1991 (Qld) (the “JR Act”) to dismiss the applicant’s application for judicial review of the commission’s decision to refuse to investigate the appellant’s allegations of police corruption. An appeal from that decision lies only with the leave of this Court: JR Act, s 48(5).

On 17 December 2008 the applicant filed a notice of appeal and an application in this Court, each of which identified Dutney J’s decision as “the judgment appealed against” but neither of which included an application for leave to appeal. Given the disadvantage the…

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: [2009] QCA 79
Decision Date: 7 April 2009

CaseChat Overview and Summary

In the case of Lumley v. Crime and Misconduct Commission, the applicant, having been convicted of one count of anal rape and one count of torture, sought judicial review of the CMC’s refusal to investigate his complaint regarding the circumstances of his conviction. The applicant alleged police corruption and his lawyers' failure to follow instructions. The primary judge dismissed the application, prompting the applicant's appeal for leave to challenge the decision. The appeal hinged on whether the primary judge had erred in interpreting the Crime and Misconduct Act 2001 (Qld), whether the applicant was allowed to present all his submissions, whether the judge read all necessary materials, and if there was a misdirection concerning a particular witness statement.

The court examined the statutory framework and found that the primary judge correctly interpreted the relevant legislation. The judge’s refusal to allow the applicant to present certain submissions was deemed reasonable as the submissions were outside the scope of the statutory criteria. The court further found that the judge had read and considered all necessary materials, and any perceived misdirection regarding a witness statement was without merit. The court concluded that the primary judge had exercised his discretion correctly and that the appeal was without merit.

Consequently, the appeal was dismissed. The applicant's notice of appeal was struck out, and the application was refused. Additionally, the applicant was ordered to pay the CMC’s costs of both proceedings, to be assessed on a standard basis. This outcome underscores the importance of adhering to statutory mandates and the limited scope of judicial review in such contexts.

Orders

Orders of the court

1. Strike out the applicant’s notice of appeal

2. The application is refused

3. Applicant to pay the respondent’s costs of both proceedings, to be assessed on the standard basis

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:	Lumley v Crime and Misconduct Commission [2009] QCA 79
PARTIES:	CHRISTOPHER EDMONSTON FERNEAUX LUMLEY (applicant) v CRIME AND MISCONDUCT COMMISSION (respondent)
FILE NO/S:	Appeal No 12675 of 2008 SC No 8241 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2009
JUDGES:	Muir and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Strike out the applicant’s notice of appeal 2. The application is refused 3. Applicant to pay the respondent’s costs of both proceedings, to be assessed on the standard basis
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant convicted of one count of anal rape and one count of torture – where applicant made a complaint to the Crime and Misconduct Commission (CMC) and the Police Commissioner that these charges and the subsequent convictions were occasioned by police corruption and the failure of the applicant’s lawyers to follow instructions – where the CMC refused to investigate the applicant’s complaint and the applicant applied for a statutory order of review – where the primary judge refused the applicant’s application for judicial review of the CMC’s refusal to investigate – whether the primary judge erred by misconstruing the Crime and Misconduct Act 2001 (Qld); by failing to allow the applicant to present all of his submissions; by failing to read all necessary materials; or by misdirecting himself as to the nature of a particular witness statement – whether the applicant should be given leave to appeal Crime and Misconduct Act 2001 (Qld), s 45, s 46, s 333 Judicial Review Act 1991 (Qld), s 48
COUNSEL:	The applicant appeared on his own behalf D T Murphy for the respondent
SOLICITORS:	The applicant appeared on his own behalf Crime and Misconduct Commission for the respondent