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Senior Constable Sheehan v Leo

Senior Constable Sheehan v Leo

Case [2016] QDC 131 3 June 2016

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DISTRICT COURT OF QUEENSLAND

CITATION:

Senior Constable Sheehan v Leo [2016] QDC 131

PARTIES:

SENIOR CONSTABLE RUSSELL SHEEHAN
(appellant)

v

RYAN DANIEL LEO
(respondent)

FILE NO/S:

BD-4690/15

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

3.6.16

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

22.4.16

JUDGE:

Robertson DCJ

ORDER:

Appeal allowed.

The costs order made below is set aside, otherwise her Honour’s orders remain in place.

The parties are invited to submit orders as to the costs of the appeal and the hearing below.

Liberty to apply within 14 days.

CATCHWORDS:

APPEAL; COSTS: charges of fraud were dismissed by the learned Magistrate on the ground of unsoundness of mind; whether the case was one of “special difficulty, complexity or importance”; whether her Honour, in awarding a higher amount for costs, applied the wrong test and misdirected herself and so erred in the exercise of her discretion pursuant to s 158B(2) of the Justices Act 1886.

Cases considered

Allisonv Channel Seven Queensland Pty Ltd [2015] QDC 111

Cullinane v McCahon [2014] QDC 120

Durrant v Gardiner [2000] QDC 198

House v R (1936) 55 CLR 499

Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77

R v Chin (1985) 157 CLR 671

R v Dillon; Ex-parte Attorney-General [2015] QCA 155

R v Easton [1994] 1 Qd.R. 531

R v Ghosh [1982] QB 1053

R v Soma (2003) 196 ALR 421

Travers v McDonagh; Carey v La Rocca [2013] QDC 177

Whitby v Stockair Pty Ltd & Anor [2015] QDC 79

Legislation considered

Criminal Code 1899

Drugs Misuse Act 1986

Justices Act1886

Justices Regulation 2004

COUNSEL:

Cummings, G. of Counsel for the appellant

Lewis, S. of Counsel for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the appellant

Bernard Bradley & Associates for the respondent

Introduction

On 2 November 2015, after a short one day hearing in the Maroochydore Magistrates Court on 9 September 2015, her Honour Magistrate Hennessy found the respondent (Mr Leo) not guilty of 3 counts of fraud on the ground of unsoundness of mind. The complainant police officer has appealed against the dismissal of the charges and an order for costs setting out in his initial notice of appeal, (5) grounds in all.

On 2 March 2016 an amended notice of appeal was filed abandoning all grounds relating to the dismissal of the charges and seeking to agitate only two grounds relating to costs (the second of which was an additional ground):

· Her Honour erred in classifying the matter as involving special difficulty, complexity or importance when determining appropriate costs.

· She erred in not using, as a guide, the costs allowed for as per the scale of costs in the Justices Regulation2004 when awarding costs under s 158B(2) of the Justices Act 1886.

The last ground as I have said was added, and Mr Leo does not object to it being added as a ground of appeal, and I give leave to…

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 Senior Constable Sheehan v Leo

Details

AGLC: Senior Constable Sheehan v Leo [2016] QDC 131
Case: [2016] QDC 131
Decision Date: 3 June 2016

CaseChat Overview and Summary

Senior Constable Sheehan sought to appeal a decision made by a magistrate, who dismissed fraud charges against Leo on the basis of unsoundness of mind. The appeal focused on the assessment of costs, specifically whether the case was of special difficulty, complexity, or importance, and if the magistrate misapplied the test in awarding costs. The appeal was heard and determined in the Queensland District Court.

The legal issues revolved around whether the magistrate applied the correct test when awarding costs and if she erred in exercising her discretion under section 158B(2) of the Justices Act 1886. It was argued that the magistrate might have misdirected herself by applying an inappropriate test for determining the amount of costs. The court needed to assess if this error affected the overall fairness and correctness of the costs order.

The court examined the magistrate's reasoning and found that there was indeed a misapplication of the test for awarding costs. The magistrate had considered factors that were not relevant to the specific statutory provision, leading to an erroneous outcome. As a result, the court concluded that the appeal should be allowed, and the costs order was set aside. The remaining orders from the magistrate were upheld, and the parties were invited to submit orders regarding the costs of the appeal and the original hearing. Liberty to apply for further orders was granted within 14 days.

Orders

Orders of the court

Appeal allowed.

The costs order made below is set aside, otherwise her Honour’s orders remain in place.

The parties are invited to submit orders as to the costs of the appeal and the hearing below.

Liberty to apply within 14 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Senior Constable Sheehan v Leo [2016] QDC 131

Most Recent Citation

Cramp Pty Ltd as Trustee for the Cramp Family Trust v Jongkind [2018] QDC 144

Cases citing this decision · 4 of 4 shown

Stone v Belmore Bulk Materials Pty Ltd
[2024] ICQ 23

…) 34 NSWLR 129 Schloss v Bell; Bell v Schloss [2016] ICQ 017 Senior Constable Sheehan v Leo [2016] QDC 131 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 APPEARANCES Mr G. Rice KC and Ms R. Kirk counsel instructed by the Office of the Work Health and Safety Prosecutor Mr R. Perry KC instructed by Herbert Smith Fr…
Guilfoyle v Niepe Constructions Pty Ltd (No 2)
[2021] QMC 3 Para 1

…case one of special difficulty, complexity or importance; ‘unusual’ is not synonymous with ‘difficult’ citing Senior Constable Sheehan v Leo [2016] QDC 131 at [29]; this case did not involve unprecedented factual circumstances as they were considered in S Kidman v Lowndes (2016) NTCA 5; submissions were distille…
Cramp Pty Ltd as Trustee for the Cramp Family Trust v Jongkind
[2018] QDC 144 Para 1

…t determining whether special importance has been established involves an objective test. [21] Senior Constable Sheehan v Leo [2016] QDC 131 at [26]; Citing Palm Grove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77 at [82].…
Schloss v Bell
[2016] ICQ 17 Para 7

…not a case that involved special difficulty, including having regard to the reversal of onus issue that does arise from time to time …" [17] [2016] QDC 131.…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Dillon; Ex parte Attorney-General (Qld)
[2015] QCA 155 Para 1

…ind, however to ensure that the correct test is applied in the future, reference should be made to R v Dillon ; Ex-parte Attorney-General [2015] QCA 155, in which the Court of Appeal, on a reference by the Attorney General, brought Queensland Law into line with the approach taken in relation to Federal offending…
Allison v Channel Seven Queensland Pty Ltd
[2015] QDC 111 Para 1

…In the case of Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111, his Honour Judge Morzone SC allowed an appeal against an award of costs of $20,000. It was not sufficient that the case was “of some importance” to the party. His Honour considered the test:…
Whitby v Stockair Pty Ltd & Anor
[2015] QDC 79 Para 1

…Judge Morzone (at [28]) referred to, and agreed with comments his Honour Judge Farr SC, DCJ made in the case of Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 where he affirmed his earlier decision of Cullinane v McCahon [2014] QDC 120 where he said:…
Cullinan v McCahon
[2014] QDC 120 Para 1

…r Judge Farr SC, DCJ made in the case of Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 where he affirmed his earlier decision of Cullinane v McCahon [2014] QDC 120 where he said:…
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council
[2014] QDC 77 Para 1

…e” in the exercise of the discretion to award a higher amount under s 158B(2): Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77 at [82], in which his Honour Judge Long, SC quoted with approval from Travers v McDonagh; Carey v La Rocca [2013] QDC 177 at [23]-[24].…
Travers v McDonagh; Carey v La Rocca
[2013] QDC 177 Para 1

…t Regional Council [2014] QDC 77 at [82], in which his Honour Judge Long, SC quoted with approval from Travers v McDonagh; Carey v La Rocca [2013] QDC 177 at [23]-[24].…
R v Soma
[2003] HCA 13 Para 1

…ances, and generally speaking not if the occasion for calling the further evidence ought reasonably to have been foreseen by the prosecutor: R v Soma (2003) 196 ALR 421. Nothing turns on this as the ruling was favourable to the appellant.…
Durrant v Gardner
[2000] QDC 198 Para 1

…e regulation) and not to a quantum that was “within the range of appropriateness in the normal course of such proceedings”. In Durrant v Gardiner [2000] QDC 198, Judge McGill observed that “when a statutory scale is provided then the starting point is always the amount of costs is to be in accordance with the sca…
Peters v the Queen
[1998] HCA 7 Para 1

…ach taken in relation to Federal offending involving charges which have “dishonesty” as an element of the offence: Peters v The Queen (1998) 192 CLR 493, so that the prosecution need only prove that what the defendant did was dishonest by the standards of ordinary people. In so doing, the Court did not follow the two…
R v Chin
[1985] HCA 35 Para 1

…hibit 10. In my opinion, this was contrary to the long established principle, that the prosecution should not be entitled to split its case: R v Chin (1985) 157 CLR 671. Here, the issue of the record of interview was discussed at the start of the trial. It was conceded by the Prosecutor that it contained no admission…
House v R
[1936] HCA 40 Para 1

…In awarding a higher amount under s 158B(2), her Honour erred in taking into account irrelevant matters in the House v R (1936) 55 CLR 499 sense, and the appeal should be allowed on that basis.…
[1982] QB 1053
[1982] QB 1053 Para 1

…people. In so doing, the Court did not follow the two stage test that Queensland Courts had applied (despite Peters ) since R v Ghosh [1982] QB 1053; so it follows that proof of the element of dishonesty does not involve proof of any subjective realisation by the defendant as to what he or she was doing was disho…

Legislation cited in this decision · 2

Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)
Justices Act 1886 (Qld)
1 mention (from Para 1)

CITATION:	Senior Constable Sheehan v Leo [2016] QDC 131
PARTIES:	SENIOR CONSTABLE RUSSELL SHEEHAN (appellant) v RYAN DANIEL LEO (respondent)
FILE NO/S:	BD-4690/15
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Maroochydore Magistrates Court
DELIVERED ON:	3.6.16
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	22.4.16
JUDGE:	Robertson DCJ
ORDER:	Appeal allowed. The costs order made below is set aside, otherwise her Honour’s orders remain in place. The parties are invited to submit orders as to the costs of the appeal and the hearing below. Liberty to apply within 14 days.
CATCHWORDS:	APPEAL; COSTS: charges of fraud were dismissed by the learned Magistrate on the ground of unsoundness of mind; whether the case was one of “special difficulty, complexity or importance”; whether her Honour, in awarding a higher amount for costs, applied the wrong test and misdirected herself and so erred in the exercise of her discretion pursuant to s 158B(2) of the Justices Act 1886. Cases considered Allisonv Channel Seven Queensland Pty Ltd [2015] QDC 111 Cullinane v McCahon [2014] QDC 120 Durrant v Gardiner [2000] QDC 198 House v R (1936) 55 CLR 499 Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77 R v Chin (1985) 157 CLR 671 R v Dillon; Ex-parte Attorney-General [2015] QCA 155 R v Easton [1994] 1 Qd.R. 531 R v Ghosh [1982] QB 1053 R v Soma (2003) 196 ALR 421 Travers v McDonagh; Carey v La Rocca [2013] QDC 177 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 Legislation considered Criminal Code 1899 Drugs Misuse Act 1986 Justices Act1886 Justices Regulation 2004
COUNSEL:	Cummings, G. of Counsel for the appellant Lewis, S. of Counsel for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions for the appellant Bernard Bradley & Associates for the respondent