JOSIYAS ZIFANANA MBUZI (appellant/applicant) v STEVEN ANDREW TORCETTI (respondent)
FILE NO/S:
CA No 266 of 2007 BD No 273 of 2007
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
8 August 2008
DELIVERED AT:
Brisbane
HEARING DATE:
28 July 2008
JUDGES:
Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
Application for leave to appeal refused with costs
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – where by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant required leave of the Court before his appeal could be heard – where the applicant appeared in the Magistrates Court charged by way of complaint that he drove a motor vehicle on a road with two continuous dividing lines and failed to drive to the left of those dividing lines in breach of s 132(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) – where the applicant pleaded not guilty to the offence charged – where the applicant gave evidence that he executed a U-turn during the course of which he clipped a traffic island and that at least two wheels went over the island – where the magistrate thereafter amended the charge pursuant to s 48 of the Justices Act 1886 (Qld) to allege that the applicant drove a motor vehicle on a road with a continuous single white line in breach of s 138(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) – where the applicant was found guilty of the offence under s 138(1) and fined $150 – where the applicant appealed to the District Court – where the District Court judge dismissed the applicant’s appeal to that Court – where the applicant alleged that the decision of the District Court was occasioned by several errors – where leave will only be granted in circumstances where there is both a reasonable argument that there is an error to be corrected and an appeal is necessary to correct a substantial injustice – whether leave to appeal should be granted
District Court of Queensland Act1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 48, s 49, s 52, s 222, s 223, s 223(1) Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 13(1), s 132(3), s 135, s 135(1) s 138(1)
[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
AGLC
Mbuzi v Torcetti [2008] QCA 231
Case
[2008] QCA 231
Decision Date
CaseChat Overview and Summary
Mbuzi sought to appeal against the conviction and sentence imposed on him by the District Court. Mbuzi had been found guilty by a magistrate of driving a motor vehicle on a road with a continuous single white line, contrary to a regulation. Mbuzi had pleaded not guilty but was convicted by the magistrate. Mbuzi then appealed to the District Court, but that appeal was dismissed. Mbuzi sought leave to appeal to a higher court from the decision of the District Court.
The central legal issue was whether the applicant was entitled to leave to appeal from the decision of the District Court. Under the legislation, an appeal could only be heard if the applicant obtained leave of the Court. There were two requirements for leave to be granted: first, there must be a reasonable argument that there is an error to be corrected, and second, an appeal must be necessary to correct a substantial injustice. The Court needed to determine if both conditions were met in this case.
The Court found that the applicant had not demonstrated a reasonable argument that there was an error to be corrected, and furthermore, that an appeal was not necessary to correct a substantial injustice. The Court held that the applicant had not made out the necessary criteria for leave to be granted. The Court found that the District Court had not erred in law or fact in dismissing the appeal and that the appeal should not proceed. The Court therefore dismissed the application for leave to appeal.
The Court ordered that the application for leave to appeal be refused, with costs awarded against the applicant. The Court held that the applicant had not demonstrated the necessary conditions for leave to appeal to be granted, and therefore, the application was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal refused with costs