May v Queensland Police Service

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SUPREME COURT OF QUEENSLAND

CITATION:

May v Queensland Police Service [2023] QCA 188

PARTIES:

MAY, Natalie Bianka
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

CA No 222 of 2022
CA No 323 of 2021
DC No 985 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:


Court of Appeal at Brisbane – [2022] QCA 121 (Mullins P)

DELIVERED ON:

15 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Flanagan and Boddice JJA and Bradley J

ORDER:

Application for leave to appeal be refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant appeared in person before an acting magistrate on a stealing charge – where, during the course of the hearing, the applicant addressed the court in a manner which was not only discourteous, but ultimately disruptive of the proceedings – where this resulted in the acting magistrate ordering that the applicant be detained pursuant to s 40 of the Justices Act 1886 (Qld) – where the applicant physically resisted the prosecutor’s carrying out of the acting magistrate’s order to take the applicant into custody – where the applicant was charged with obstruct police officer – where, after trial before another magistrate, the applicant was convicted of obstruct police officer – where the applicant was late in filing the notice of appeal to the District Court – where the applicant applied for an adjournment of the hearing in the District Court – where the District Court judge refused the adjournment and refused to extend the time for the appeal due to the poor prospects of the appeal – where the applicant was refused leave to appeal the orders of the District Court judge by a single judge of appeal – where the applicant appeals that decision – where the applicant’s application for leave to appeal should be regarded as an application for a re-hearing of her application for leave to appeal the decision of the District Court judge – whether the District Court judge erred in concluding that there were poor prospects of a successful appeal

Justices Act 1886 (Qld), s 40, s 222
Police Powers and Responsibilities Act 2000 (Qld), s 615, s 790, s 796

DBX v TAT & Anor[2021] QCA 242, considered
Forrest v Commissioner of Police[2017] QCA 132, cited
May v Commissioner of Police [2021] QDC 275, related
May v Queensland Police Service[2022] QCA 121, related
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
S L Dennis for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. THE COURT: On 10 December 2021 the…

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Details
Case
[2023] QCA 188
Decision Date

CaseChat Overview and Summary

In May v Queensland Police Service, the applicant sought leave to appeal against the decision of the District Court judge. The applicant had previously been convicted of obstructing a police officer and had appealed against that decision. The District Court judge had refused the applicant's application for leave to extend time and for an adjournment, and dismissed the appeal. The applicant then sought leave to appeal against the decision of the District Court judge. The legal issues in this case were whether the District Court judge erred in concluding that there were poor prospects of a successful appeal and whether the force used in the arrest was reasonable. The Court found that the District Court judge's decision to refuse an adjournment and to dismiss the appeal was a sound exercise of discretion. The Court also found that the force used in the arrest was reasonable and appropriate. The application for leave to appeal was refused. The Court found that the District Court judge's decision to refuse an adjournment and to dismiss the appeal was a sound exercise of discretion. The Court also found that the force used in the arrest was reasonable and appropriate. The Court found that the applicant had failed to establish any error on the part of the District Court judge which would warrant the grant of leave. The Court noted that the applicant had not sought judicial review or sought any form of prerogative relief in relation to the decision of the acting magistrate that the applicant be taken into custody. The Court also found that the District Court judge's finding that the force used was reasonable was based on his review of the relevant evidence before Magistrate Payne. The Court was satisfied on the evidence that the level of force applied in the arrest was reasonable and appropriate. The Court endorsed the factual finding of Magistrate Payne that the force used was not excessive. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal be refused.

Background

Background to the litigation

Before Mullins P the applicant applied for leave to adduce evidence in the form of her affidavit affirmed on 31 May 2022. The President refused the application. The applicant did not seek to renew this application before this Court. Even if such an application had been renewed it ought to be refused for the reasons given by Mullins P.[5][5]May v Queensland Police Service [2022] QCA 121, [29].The relevant background circumstances The relevant circumstances in which the charge of obstruct police officer was laid, are set out in [5] to [14] of the reasons of Mullins P. So too are the relevant aspects of the decision of Magistrate Payne from which the applicant appealed to Burnett DCJ pursuant to s 222 of the Justices Act.[6]The Court has satisfied itself as to the accuracy of these paragraphs of the judgment of Mullins P.[6]May v Queensland Police Service [2022] QCA 121, [15]–[20]. In brief, the applicant and her husband had been charged with stealing. That charge was listed for trial in the Mossman Magistrates Court on 12 October 2017. The applicant and her husband appeared for themselves. At the outset of the trial before an acting magistrate, the police prosecutor sought to amend the particulars of the ownership of the goods. The applicant opposed this application stating that she was not ready for trial and wished to call witnesses from Europe. As described by Burnett DCJ during the course of the hearing,[7] the applicant addressed the court in a manner which was not only discourteous, but ultimately disruptive of the proceedings. This resulted in the acting magistrate ordering that the applicant be detained pursuant to s 40 of the Justices Act. The police prosecutor sought to detain the applicant and effected arrest in accordance with the order made by the acting magistrate. The applicant resisted the arrest and otherwise obstructed police in the course of effecting the arrest. Another police officer was involved in assisting the police prosecutor in his attempts at arrest.[7][2021] QDC 275, [3]. The trial was adjourned. At a subsequent proceeding, the applicant apologised to the acting magistrate who determined not to take any further action pursuant to s 40 and discharged the applicant in respect of the contempt proceeding. The applicant was however, charged by police for obstructing a police officer. The trial of this charge was heard before Magistrate Payne on 8 and 9 August 2019. The applicant was represented by a lawyer. The applicant was found guilty of the charge in contravention of s 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld). Magistrate Payne discharged the applicant absolutely with no conviction recorded. The effect of the reasons given by Magistrate Payne are accurately set out in the judgment of Mullins P.[8][8]May v Queensland Police Service [2022] QCA 121, [15]–[20].The reasons of Burnett DCJ As well as considering the appeal, the learned primary judge was required to also deal with two applications, an application for leave to extend time and an application for an adjournment. The application for an extension of time was required because the applicant filed her notice of appeal on 27 March 2020, which was approximately 16 days out of time. His Honour refused both applications and dismissed the appeal. The primary basis upon which an extension of time was refused and the appeal dismissed was his Honour’s assessment of the applicant’s prospects of success on the appeal. His Honour assessed those prospects as “poor”.[9][9]May v Commissioner of Police [2021] QDC 275, [19].

Evidence

Evidence Before The Court

On 25 July 2023, Flanagan JA directed that the application for leave to appeal filed 15 August 2022 be determined on the papers.The applicant’s application for leave to adduce evidence Before Mullins P the applicant applied for leave to adduce evidence in the form of her affidavit affirmed on 31 May 2022. The President refused the application. The applicant did not seek to renew this application before this Court. Even if such an application had been renewed it ought to be refused for the reasons given by Mullins P.[5][5]May v Queensland Police Service [2022] QCA 121, [29].The relevant background circumstances The relevant circumstances in which the charge of obstruct police officer was laid, are set out in [5] to [14] of the reasons of Mullins P. So too are the relevant aspects of the decision of Magistrate Payne from which the applicant appealed to Burnett DCJ pursuant to s 222 of the Justices Act.[6]The Court has satisfied itself as to the accuracy of these paragraphs of the judgment of Mullins P.[6]May v Queensland Police Service [2022] QCA 121, [15]–[20]. In brief, the applicant and her husband had been charged with stealing. That charge was listed for trial in the Mossman Magistrates Court on 12 October 2017. The applicant and her husband appeared for themselves. At the outset of the trial before an acting magistrate, the police prosecutor sought to amend the particulars of the ownership of the goods. The applicant opposed this application stating that she was not ready for trial and wished to call witnesses from Europe. As described by Burnett DCJ during the course of the hearing,[7] the applicant addressed the court in a manner which was not only discourteous, but ultimately disruptive of the proceedings. This resulted in the acting magistrate ordering that the applicant be detained pursuant to s 40 of the Justices Act. The police prosecutor sought to detain the applicant and effected arrest in accordance with the order made by the acting magistrate. The applicant resisted the arrest and otherwise obstructed police in the course of effecting the arrest. Another police officer was involved in assisting the police prosecutor in his attempts at arrest.[7][2021] QDC 275, [3]. The trial was adjourned. At a subsequent proceeding, the applicant apologised to the acting magistrate who determined not to take any further action pursuant to s 40 and discharged the applicant in respect of the contempt proceeding. The applicant was however, charged by police for obstructing a police officer. The trial of this charge was heard before Magistrate Payne on 8 and 9 August 2019. The applicant was represented by a lawyer. The applicant was found guilty of the charge in contravention of s 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld). Magistrate Payne discharged the applicant absolutely with no conviction recorded. The effect of the reasons given by Magistrate Payne are accurately set out in the judgment of Mullins P.[8][8]May v Queensland Police Service [2022] QCA 121, [15]–[20].The reasons of Burnett DCJ

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant only made brief oral submissions before the President as she had set out her submissions in writing. The applicant’s oral submissions before the President were primarily directed to the receipt of further evidence and did not advance her submissions beyond that which had been reduced to writing.Consideration The relevant principles for a consideration by this Court of an application for leave to appeal pursuant to s 118(3) of the District Court Act were considered by Bowskill J (as her Honour then was) in McDonald v Queensland Police Service.[16] The court’s discretion to grant or refuse leave to appeal is unfettered and is exercisable according to the nature of the case, but leave to appeal will not be given lightly, as the applicant has already had the benefit of two judicial hearings. Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[17] A factual finding of a District Court judge may only be reviewed on an appeal to this Court if there is no evidence to support it or it is shown to be unreasonable.[16][2017] QCA 255.[17]McDonald v Queensland Police Service [2017] QCA 255, [39] (Fraser and Philippides JJA agreeing). The applicant has failed to establish any error on the part of Burnett DCJ which would warrant the grant of leave. First, his Honour’s decision to refuse an adjournment constituted a sound exercise of discretion. The matter was not set down for hearing before Burnett DCJ until the applicant’s availability had been ascertained. His Honour was able to proceed in the absence of the applicant in circumstances where the applicant, having failed to appear, had previously filed a 17 page outline of submissions. In considering those submissions, his Honour was entitled to conclude that the prospects of appeal were poor. It was this assessment that also founded his Honour’s exercise of discretion in refusing the application for an extension of time. The applicant did not seek judicial review or seek any form of prerogative relief in relation to the decision of the acting magistrate that the applicant be taken into custody. Until a court of competent jurisdiction declared that the order of the acting magistrate for the purposes of s 40(3)(b) of the Justices Act was unlawful, it constituted a lawful order. The order therefore authorised Constable Mitchell to proceed on the basis that he was authorised to arrest the applicant. Nor has any error been demonstrated in his Honour’s finding that the force used was reasonable. This finding was based on his Honour’s review of the relevant evidence before Magistrate Payne. His Honour considered that everything that followed upon the immediate act of arrest by Constable Mitchell escalated in response to the level of resistance being offered by the applicant. His Honour was satisfied on the evidence that the level of force applied in the arrest was reasonable and appropriate. His Honour further endorsed the factual finding of Magistrate Payne that the force used was not excessive.