R v Al Shakarji - [2016] QCA 29

[2016] QCA 29

COURT OF APPEAL

MARGARET McMURDO P
FRASER JA
DAUBNEY J

CA No 180 of 2015
DC No 312 of 2012

THE QUEEN

AL SHAKARJI, Mustafa Applicant

BRISBANE

TUESDAY, 16 FEBRUARY 2016

JUDGMENT

THE PRESIDENT: Justice Daubney will deliver his reasons first.

DAUBNEY J: On the 4th of September 2012, after a two day summary trial in the Magistrates Court at Townsville, the applicant was convicted of speeding, namely, exceeding the speed limit of 60 kilometres per hour by travelling at 88 kilometres per hour on the ring road at Townsville, on 14 March 2012. He was fined $500 and ordered to pay costs.

The applicant successfully appealed to the District Court pursuant to s 222 of the Justices Act 1886 and on 21 December 2012 that Court allowed the appeal, set aside the conviction and sentence and no retrial was ordered. The present respondent then sought leave to appeal that decision to this Court. On 25 October 2013, this Court granted leave to appeal, allowed the appeal, set aside the orders of the District Court and remitted the matter to the District Court for determination (see Commissioner of Police v Al Shakarji [2013] QCA 319).

On 16 July 2015, following a hearing on 29 May 2015, it was ordered in the District Court that the applicant’s appeal against the Magistrates Court orders be dismissed (see Al Shakarji v Commissioner of Police [2015] QDC 176).

The applicant has now applied under s 118(3) of the District Court of Queensland Act 1967 for leave to appeal against that latest District Court judgment.

Section 118(3) relevantly provides to the effect that a party dissatisfied with a judgment in the District Court’s original or appellate jurisdiction “…may appeal to the Court of Appeal with the leave of that Court.”

Whilst it is clear that this section confers a general discretion on this Court which is exercisable according to the nature of the case (Smith v Ash (2010) 200 A Crim R 115 per Fraser JA at [50]), it is equally well established that such leave:

“…is usually only granted where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error which should be corrected.” (Commissioner of Police v Al Shakarji [2013] QCA 319 per Morrison JA at [4]).

Moreover, as this would be an appeal from a decision of the District Court in its appellate jurisdiction, it would be a “strict appeal” limited to errors of law rather than an appeal by way of rehearing (ibid, per North J at [75] and Gobus v Queensland Police Service [2013] QCA 172 per Fraser JA at [5]).

The evidence which incriminated the applicant was derived from a radar device fitted in a police vehicle. The learned primary judge summarised at paragraphs [16] to [20] of his judgment the relevant evidence given in the Magistrates Court trial by the police officer who was operating the device.…

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 R v Al Shakarji

Details

AGLC: R v Al Shakarji [2016] QCA 29
Case: [2016] QCA 29
Decision Date: 16 FEBRUARY 2016

CaseChat Overview and Summary

The case of R v Al Shakarji involved the applicant, Al Shakarji, appealing against the decision of the District Court to dismiss his appeal against a conviction for speeding. The conviction was originally handed down by the Magistrates Court at Townsville. The Court of Appeal, consisting of Daubney J, Fraser JA, and the President, was required to decide whether to grant leave to appeal the District Court’s decision. The applicant sought leave to appeal on the basis that there was an error in law concerning the radar device used to measure his speed, which he claimed was not mounted in accordance with Australian Standards.

The Court of Appeal held that the applicant's arguments were not persuasive. The Court noted that the primary judge had found the police officer's evidence to be clear, consistent, and credible, and had accepted it over the applicant’s evidence. The Court also found that the issue of the radar device's mounting had been previously abandoned by the applicant and was therefore not a valid ground for appeal. The Court concluded that no substantial injustice or error of law had occurred that warranted granting leave to appeal. The applicant's attempt to re-agitate an abandoned argument did not meet the criteria for leave to appeal.

The Court of Appeal unanimously refused the application for leave to appeal. The order was that the application for leave to appeal was refused, and the court was adjourned.

Orders