Mbuzi v Hornby - [2010] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v Hornby [2010] QCA 186

PARTIES:

MBUZI, Josiyas Zifanana
(applicant)
v
HORNBY, David John
(respondent)

FILE NO/S:

CA No 43 of 2010
DC No 2338 of 2009
MC No 35124 of 2006
MC No 161676 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2010

JUDGES:

Chief Justice and Chesterman JA and Douglas J
Judgment of the Court

ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant was found guilty in the Magistrates Court, following a trial, of committing a public nuisance and of contravening a police officer’s direction – where the trial in the Magistrates Court commenced on 29 July 2009 and the applicant’s request for adjournment was refused – where the applicant, on that same day during the luncheon adjournment, filed in the Supreme Court an application for judicial review in relation to the Magistrates Court proceeding – where the applicant returned late to the Magistrates Court and sought adjournment of the Magistrates Court trial pending determination of the Supreme Court proceeding – where the application for adjournment was refused – where the applicant failed to appear in the Magistrates Court on the following day and the Magistrate resumed the hearing in the absence of the applicant and gave judgment – where the applicant had further filed an application in the Supreme Court for an order staying the Magistrates Court proceeding – where there was no evidence that the Magistrate had any notice of that application before judgment was given – where the Supreme Court applications were subsequently dismissed – where the applicant appealed to the District Court against conviction and penalty – where the conviction and penalties were upheld in the District Court – where applicant applies for leave to appeal from the judgment of the District Court citing error of law and miscarriage of justice – whether leave should be granted

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 147, s 222

Mann v Doo Wee (1907) 5 CLR 592; [1907] HCA 57, applied
Rodgers v Smith[2006] QCA 353, applied

COUNSEL:

The applicant appeared on his own behalf
B Merrin for the respondent

SOLICITORS:

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

[1] THE COURT: The applicant was found guilty in the Magistrates Court, following a trial, of committing a public nuisance, and of contravening a police officer’s direction. He was fined $500 for the nuisance offence, and $300 for the contravention offence.

[2] The applicant committed the offences while speaking with a Ms Bullock, a member of the staff at the Petrie Courthouse. The Magistrate recorded these findings:

“…the defendant started to shout, yell, demand, harangue and talk over Ms…

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.

Continue reading Mbuzi v Hornby

Details

AGLC: Mbuzi v Hornby [2010] QCA 186
Case: [2010] QCA 186
Decision Date: 23 July 2010

CaseChat Overview and Summary

In the case of Mbuzi v Hornby, the applicant was convicted in the Magistrates Court of Queensland of committing a public nuisance and contravening a police officer’s direction. The trial began on 29 July 2009, and the applicant's request for an adjournment was refused. During the luncheon adjournment on the same day, the applicant filed an application for judicial review in the Supreme Court concerning the Magistrates Court proceeding. Upon returning to the Magistrates Court, the applicant sought an adjournment pending the determination of the Supreme Court proceeding, but this request was also denied. Consequently, the applicant failed to appear in court the following day, leading the Magistrate to resume the hearing in their absence and deliver judgment. The applicant subsequently filed another application in the Supreme Court for an order staying the Magistrates Court proceeding, though there was no evidence that the Magistrate was aware of this application before rendering judgment. The Supreme Court dismissed both applications. The applicant then appealed to the District Court against the conviction and penalties, but the appeal was unsuccessful, with both conviction and penalties upheld. Now, the applicant seeks leave to appeal from the District Court's judgment, citing error of law and miscarriage of justice.

The primary legal issue before the court was whether the applicant should be granted leave to appeal from the District Court's judgment. The applicant argued that there were errors of law and a miscarriage of justice, justifying an appeal. The court considered whether the applicant's failure to appear in the Magistrates Court and the subsequent dismissal of the Supreme Court applications were grounds for granting leave to appeal. The court also examined whether the applicant had followed the proper procedural steps and whether there was any evidence of prejudice to the applicant due to the Magistrate's lack of awareness of the second Supreme Court application.

The court found that the applicant's failure to appear in the Magistrates Court and the subsequent dismissal of the Supreme Court applications were not sufficient grounds to grant leave to appeal. The court noted that the applicant did not demonstrate any error of law or miscarriage of justice that would warrant an appeal. The court emphasised that the applicant had not followed the proper procedural steps, and there was no evidence that the Magistrate was prejudiced by the lack of notice of the second Supreme Court application. The court held that the District Court had correctly upheld the conviction and penalties, and there were no grounds for a successful appeal. Therefore, the application for leave to appeal was refused.

Accordingly, the court's orders were that the application for leave to appeal from the judgment of the District Court was refused.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mbuzi v Hornby [2010] QCA 186
PARTIES:	MBUZI, Josiyas Zifanana (applicant) v HORNBY, David John (respondent)
FILE NO/S:	CA No 43 of 2010 DC No 2338 of 2009 MC No 35124 of 2006 MC No 161676 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2010
JUDGES:	Chief Justice and Chesterman JA and Douglas J Judgment of the Court
ORDER:	Application refused
CATCHWORDS:	APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant was found guilty in the Magistrates Court, following a trial, of committing a public nuisance and of contravening a police officer’s direction – where the trial in the Magistrates Court commenced on 29 July 2009 and the applicant’s request for adjournment was refused – where the applicant, on that same day during the luncheon adjournment, filed in the Supreme Court an application for judicial review in relation to the Magistrates Court proceeding – where the applicant returned late to the Magistrates Court and sought adjournment of the Magistrates Court trial pending determination of the Supreme Court proceeding – where the application for adjournment was refused – where the applicant failed to appear in the Magistrates Court on the following day and the Magistrate resumed the hearing in the absence of the applicant and gave judgment – where the applicant had further filed an application in the Supreme Court for an order staying the Magistrates Court proceeding – where there was no evidence that the Magistrate had any notice of that application before judgment was given – where the Supreme Court applications were subsequently dismissed – where the applicant appealed to the District Court against conviction and penalty – where the conviction and penalties were upheld in the District Court – where applicant applies for leave to appeal from the judgment of the District Court citing error of law and miscarriage of justice – whether leave should be granted District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 147, s 222 Mann v Doo Wee (1907) 5 CLR 592; [1907] HCA 57, applied Rodgers v Smith[2006] QCA 353, applied
COUNSEL:	The applicant appeared on his own behalf B Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent