Sanchez v Commissioner of Police
[2023] QCA 36
•14 March 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Sanchez & Anor v Commissioner of Police [2023] QCA 36
PARTIES:
In CA No 128 of 2021:
SANCHEZ, Louis Philippe
(appellant)
v
COMMISSIONER OF POLICE
(respondent)In CA No 129 of 2021:
SANCHEZ, Rona Marie
(appellant)
v
COMMISSIONER OF POLICE
(respondent)FILE NO/S:
CA No 128 of 2021
CA No 129 of 2021
DC No 196 of 2020
DC No 197 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction – Further Orders
ORIGINATING COURT:
District Court at Maroochydore – [2021] QDC 76 (Cash KC DCJ)
DELIVERED ON:
14 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGES:
McMurdo and Flanagan JJA and Freeburn J
ORDER:
In each proceeding, substitute an order that the appeal be dismissed for the order which was made when the Court delivered its judgment on 28 October 2022.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the matter was first heard in 2022 – where, due to an administrative error, the matter was treated by the Court as an application for leave to appeal rather than an appeal – whether the Court has the power to rescind a grant of leave to appeal – whether the Court has the power to vary its previous order – whether the Court should vary its previous order
Clarke v Ham[2023] QCA 17, cited
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143, cited
Lastavec & Anor v Effective Security Pty Ltd & Anor [2022] QCA 218, cited
R v Pettigrew [1997] 1 Qd R 601; [1996] QCA 235, cited
Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147; [1982] HCA 9, citedCOUNSEL:
J Levine for the appellants
A Nikolic for the respondentSOLICITORS:
Matrix Legal for the appellants
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: Mr and Mrs Sanchez were convicted in the Magistrates Court on charges of obstructing police and, in the case of Mrs Sanchez, contravening a direction or requirement by police. Each was fined $1,500 with no convictions recorded. They appealed to the District Court, which dismissed their appeals. They then applied for leave to appeal against the decision of the District Court, by applications which were filed on 4 June 2021.
Their applications for leave to appeal were in relevantly identical terms. Their outlines of argument, signed by their present counsel, were filed on 14 February 2022. The respondent’s outline of argument was filed on 2 March 2022. Each side filed a list of authorities with its outline.
On 27 April 2022, the proceedings came before Sofronoff P for directions.[1] After a brief exchange with each counsel, Sofronoff P said:
“But that’s not a thing I ought to preclude … from being considered by three judges. So unless you had something to say to me to persuade me that I should not refer the matter, then what I would do is refer the matter of leave to a bench of three judges who can consider … the whole question on the merits.”
After addressing that comment to the respondent’s counsel, the President turned to the applicants’ counsel to say that he proposed to grant the applicants leave to appeal. He concluded by saying:
“Well, what I’ll do is I’ll grant leave to appeal in each of the matters, and … both matters will be listed on the same date and the Registry will make directions for outlines to be exchanged.”
[1]The transcript records that it was a hearing before Mullins P, but there is no doubt that it was a hearing before Sofronoff P.
That reference to directions for outlines of argument suggests that the President was unaware that outlines had been already filed, and that they contained detailed submissions on the issues raised by the applicants’ proposed appeal. As it happened, no further outlines were directed to be filed by the Registrar and none were filed. Instead, the Registrar simply emailed the parties asking for the availability of their counsel for certain dates for the hearing.
Unfortunately, the President’s order, granting leave to appeal in each case, was not recorded on the Court’s files.
The cases came before us for hearing on 7 October 2022. The counsel who then appeared were those who had appeared before Sofronoff P. The Court was not informed that the President had granted leave to appeal. The Court heard full argument on the merits of the appeals (or proposed appeals, as the Court understood them to be) before giving its judgment on 28 October 2022 in which those merits were assessed. The order of this Court was that in each application, leave to appeal was refused.[2]
[2]Sanchez & Anor v Commissioner of Police [2022] QCA 212.
Mr and Mrs Sanchez contend that this Court did not have power to make those orders and that they were nullities. From this premise it is contended that their appeals are yet to be determined, which can only be fairly undertaken by a differently constituted court conducting its own hearing and reaching its own decision on the merits.
The respondent contends that we can and should rectify the error under the “slip rule”, by ordering that each appeal be dismissed.
The applications for leave to appeal were filed pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). The considerations relevant to whether leave should be granted were authoritatively set out in the judgment of Bowskill J (as the Chief Justice then was), with the agreement of the other members of the Court, in McDonald v Queensland Police Service.[3] As that case exemplifies, it is common for the Court to hear full argument on the merits of a proposed appeal when hearing submissions on the question of leave to appeal, and to give a judgment which refuses leave to appeal if the Court concludes that the proposed appeal lacks merit.
[3][2018] 2 Qd R 612; [2017] QCA 255.
That practice corresponds with this Court’s disposition of applications for leave to appeal against sentence, although in the case of applications for leave under s 118(3), leave is sometimes refused also where it can be seen, without the benefit of full argument on the merits, that the proposed appeal is groundless or that for other reasons the proposed appeal does not meet the required threshold to justify the grant of leave.[4]
[4]See for example, Clarke v Ham [2023] QCA 17.
In this case, the Court heard full argument on the merits of the proposed appeal and decided upon the outcome solely by reference to its concluded view of those merits. The reasons for judgment were no different from those which would have been given had the Court been aware of the President’s grants of leave to appeal, save that the order would have been to dismiss the appeals.
Further, in Sanofi v Parke Davis Pty Ltd,[5] Gibbs CJ, Stephen and Mason JJ said:[6]
“It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted.”
Therefore, had this Court been aware that leave to appeal had been granted, then for the reasons given in our judgment, it would have been open to the Court to rescind the orders made for the grant of leave. With the benefit of full argument on the merits of the appeals, this Court concluded that the appeals were without merit. The orders for the grant of leave, being interlocutory, could have been set aside, and replaced with orders refusing leave to appeal as the Court did make.
[5](1982) 149 CLR 147; [1982] HCA 9.
[6](1982) 149 CLR 147 at 153; [1982] HCA 9.
For the applicants, it is asserted that the Court of Appeal has a power to declare the orders which were made in this Court’s judgment as nullities but no power to vary those orders. That submission cannot be accepted. This Court has an inherent jurisdiction to vary an order where the order arose from a slip or omission.[7] The present case is not governed by the principle in Grierson v The King,[8] that a right of appeal provided by a statute in terms such as those of s 668D of the Criminal Code is a right to the one appeal only. The present circumstance is that the Court is yet to dispose of the appeals (leave to appeal having been granted), which will be effected by the orders which we will make.
[7]Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 152-154 per Kirby P; R v Pettigrew [1997] 1 Qd R 601; [1996] QCA 235; Lastavec & Anor v Effective Security Pty Ltd & Anor [2022] QCA 218.
[8](1938) 60 CLR 431; [1938] HCA 45.
In our conclusion, the position should be remedied by substituting, in each proceeding, an order that the appeal be dismissed for the order which was made when the Court delivered its judgment on 28 October 2022.
There was an application for an indemnity certificate under s 22 of the Appeal Costs Fund Act 1973 (Qld), upon the premise that there would have to be a rehearing of the case. However that rehearing will not occur.
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