Reno v. Farlow

[2007] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

Reno v Farlow [2007] QCA 155

PARTIES:

RENO, Paul Burrow
(applicant)
v
GRAEME LESLIE FARLOW
(respondent)

FILE NO:

CA No 328 of 2006
SC No 115 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave to appeal, s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMP ON:

17 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2007

JUDGE:

McMurdo P, Fryberg J and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

Appeal and new trial – Appeal – General principles – Introduction of new factual evidence – Failure of applicant to give evidence at first instance – No evidence indicating initial decision incorrect – Application dismissed

District Court Act 1967 s 118
Police Powers and Responsibilities Act 2000 s 77, s 44

COUNSEL:

Applicant: Unrepresented
Respondent: M J Copley

SOLICITORS:

Applicant: Unrepresented
Respondent: Director of Public Prosecutions (Queensland)

FRYBERG J: On 24 March 2006 the applicant was convicted in the Magistrates Court of obstructing a police officer in the performance of his duties. The offence was alleged to have taken place on 2 August 2004 at Nambour. The offence was charged as a breach of section 444 of the Police Powers and Responsibilities Act 2000, that being a reference to the numeration of the offence at the time (as are other references I shall make to that Act).

The Magistrate gave full reasons for his finding of guilt.  They included a finding that at the time of the obstruction the officer was acting in the performance of his duties and a finding that the applicant pulled away from the police officer, rose to his feet and waved his arms about the place in an attempt to obstruct and effectively did obstruct the police officer effecting the arrest that he was seeking to effect.

The applicant appealed to the District Court on the sole ground that the Magistrate misdirected himself in relation to the element of the offence "in the course of duty". That was apparently a reference to the expression in section 444, "in the performance of the officer's duties". That ground does not seem to have been argued on the appeal to the District Court. Instead, the applicant argued that section 77 of the Police Powers and Responsibilities Act which applies if a police officer reasonably suspects, among other things, that evidence may be concealed or destroyed unless a place is immediately entered and searched, was to be used only in exceptional circumstances which, he submitted, did not exist in the present case.

He also argued that it was not open on the evidence to the Magistrate to find, as he had done, that either the search or the arrest of the applicant under section 198 of the Act was lawful.  This argument was based on the proposition that the officer could not have reasonably suspected that evidence might be concealed or destroyed nor that the applicant had committed an indictable offence.  He did not appeal on any ground relating to whether or not he had, in fact, obstructed the police officer.

The District Court Judge rejected the argument of law regarding the interpretation of section 77 and held that the facts known to the police officer warranted the suspicions which he held. There being no other criticism of the Magistrate's decision, he dismissed the appeal.

The applicant now seeks leave to appeal from that dismissal to this Court, pursuant to section 118 of the District Court Act 1967, on the ground that the Judge erred in finding the police officer was acting in the course of his duty at the relevant time. On the hearing of the application he did not advance any arguments in support of that ground but instead submitted to us that he did not in fact, obstruct the police officer. I should add that the applicant was unrepresented on the application before us although he was represented by legal practitioners in the both of the Courts below.

He said to us that his complaint was, not only that he did not obstruct the police, but also that he had been mistreated by the police whilst in their custody in that they had refused to allow him to go to the toilet, and that he had been assaulted by the police.

As Mr Copley on behalf of the Crown pointed out in his submissions, these matters were not the subject of evidence on the part of the applicant at first instance.  No evidence in fact was given or called by the applicant at that time.  Moreover, the version given by the police was not the subject of any significant challenge in cross-examination by the legal practitioner representing the applicant.

I have already referred to the Magistrate's finding but it is also appropriate to note the Magistrate's recording of the fact that no particular issue had been taken on the question of obstruction, although it remained something for the prosecution to prove.  The Magistrate noted that the defendant had chosen not to strenuously pursue that matter at trial.

In my judgment, the decision below on the construction of section 77 of the Act was clearly correct. Nothing in the wording of the section supports the construction for which the applicant contends. As for the findings below regarding the sufficiency of evidence, nothing in the circumstances of the case suggests that leave to appeal on this aspect is appropriate.

As to the matter argued today by the applicant, it is plainly impossible for this Court on an application such as this, to take into account allegations that were not made at first instance and were not the subject of evidence on the part of the applicant.  In any event, even if there were some evidence about it, this is an application for leave to appeal and it is far from clear that such a matter would be a proper subject for leave.  That does not need to be determined as plainly the point being taken now for the first time is not able to be relied upon.

In my judgment the application should be dismissed.

THE PRESIDENT:  I agree that the applicant has failed to demonstrate any good reason to justify the grant of leave to appeal.  I agree with Justice Fryberg that the application for leave to appeal should be refused.

PHILIPPIDES J:  I also agree.

THE PRESIDENT:  The application for leave to appeal is refused.