Court of Appeal Judgment Summary Notes

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The following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by Bruce Godfrey, Court of Appeal Research Officer. They provide a brief overview of each case. The full text of each decision may be accessed from the Court website which is accessible by clicking the case name.

CIVIL APPEALS

State of Queensland v Deadman; Thompson v State of Queensland [2016] QCA 218 (15/9368) Philippides JA and Boddice and Burns JJ 1 September 2016


General Civil Appeal – where the State of Queensland applied for a serious drug offender confiscation order under Ch 2A of the Criminal Proceeds Confiscation Act 2002 (Qld) (CPCA) – where, in the Deadman appeal, the primary judge had regard to the personal circumstances of the respondent as part of the public interest for the purpose of determining whether to exercise the discretion in s 93ZZB(2) CPCA to decline to make a serious drug offender confiscation order – whether the primary judge erred in considering the personal circumstances of the respondent as part of the public interest under s 93ZZB(2) CPCA – whether the primary judge had proceeded on an erroneous interpretation of the objects of the Act – where the Act does not define the term “public interest”, nor does the Act positively identify or expressly limit the range of matters relevant to the “public interest” when exercising the discretion to refuse to make a confiscation order or exclude property from the ambit of the order – where given that the Act provides no positive indication of the considerations by reference to which the s 93ZZB(2) CPCA discretion to refuse to make an order is to be made, the public interest determination is to be construed as importing a discretionary value judgment to be made by reference to undefined factual matters – where her Honour was entitled to take into account matters personal to the respondent as well as the objects, scope and purpose of the Act, in determining that making the order was not in the public interest – where the primary judge did not err in considering the personal circumstances of the respondent in exercising her discretion as part of the public interest under s 93ZZB(2) CPCA – where, in the Thompson appeal, the appellant contended that if the Deadman appeal was allowed, and further evidence was admitted, it was not in the public interest to make a serious drug offender confiscation order against the appellant – whether personal circumstances could be considered as part of the public interest for the purpose of whether to exercise the discretion in s 93ZZB(2) to decline to make a serious drug offender confiscation order – where the judge having failed to have regard to the appellant’s personal circumstances, the exercise of the discretion miscarried. In Appeal No 9368 of 2015 (Deadman): Appeal dismissed with costs. In Appeal No 5534 of 2015: Leave to adduce further evidence is granted. Paragraph 4 of the order of the primary judge made 8 May 2015 is set aside. Pursuant to s 93ZZB(2) CPCA, all property of the appellant is excluded from paragraph 3 of the order made by the primary judge on 8 May 2015, except $5,000 money standing to the credit of the appellant in the account as identified in the draft order provided. Costs. Paragraph 5 of the order made by the primary judge on 8 May 2015 be set aside.

Nugent v Stewart (Commissioner of Police) & Anor [2016] QCA 223 (16/36) Margaret McMurdo P and Morrison JA and Mullins J 6 September 2016

General Civil Appeal – where the appellant, who was a police officer, was suspected of committing an offence of misconduct in public office under s 92A of the Criminal Code – where the appellant attended two interviews conducted by the Queensland Police Service – where the first interview was an inquiry into the suspected commission of the offence of misconduct in office – where the appellant refused to answer claiming the privilege against self-incrimination – where the second interview commenced immediately thereafter and was a disciplinary interview – where the appellant continued to refuse to answer, claiming the privilege against self-incrimination – where the appellant was referred to a direction by the Commissioner of Police, requiring officers to answer questions put to them in a disciplinary interview and was told that non-compliance with the direction could result in disciplinary action – where the appellant maintained his claim to privilege against self-incrimination – where the appellant sought a declaration in the Supreme Court that the privilege was available to be claimed by him in a disciplinary interview – where that application was dismissed and the learned primary judge found that a police officer’s right to the privilege against self-incrimination had been impliedly abrogated by the Police Service Administration Act 1990 (Qld), the Police Service (Discipline) Regulations 1990 and the Police Service Administration Regulation 1990 – whether the provisions of the Police Service Administration Act 1990, the Police Service (Discipline) Regulations 1990 and the Police Service Administration Regulation 1990 impliedly abrogate the privilege against self-incrimination in a QPS disciplinary inquiry – where none of the legislative provisions referred to above state expressly that the privilege against self-incrimination is abrogated – where the legislation makes it plain that the powers reposed in the Commissioner, and exercisable over officers, are there not only to make the service a disciplined and efficient body, but also to make it better able to uphold the law publicly, to preserve and enhance the public confidence in the Service, and preserve and enhance the protection of the community’s lives and property – where an important aspect of that is the fact that when a person becomes an officer in the service, that person gives up various rights that are enjoyed by the ordinary citizen – where as the Service performs most of its duties in public, and in ways that often impact on the liberty of citizens, it is essential that the Service be, and be seen to be, a fully disciplined body, able to perform with efficiency and probity – where equally essential to that, is the need for the Service, through the Commissioner, to be able to probe officers as to their conduct affecting questions of discipline, and for answers to be compellable – where that is the evident purpose of the legislative provisions to which are referred to above – where the necessary consequence of that is that, in a disciplinary interview, a police officer’s right to maintain a claim to self-incrimination has been impliedly abrogated – where in Police Service Board v Morris (1985) 156 CLR 397, Gibbs CJ referred to the regulation in that case, which had similar effect to that here, in this way: “the character of the regulation, which is primarily designed to secure the obedience to orders rather than to compel the answering of questions, indicates both that the application of the privilege would be inappropriate and that the obligation to obey lawful orders is not intended to be subject to any unexpressed qualification” – where the majority in Morris expressed the question for decision as including whether a party is bound to answer any question which might tend to expose him to the risk of a criminal conviction, quite apart from the imposition of a penalty. Appeal dismissed. Costs.

Watts v Legal Services Commissioner [2016] QCA 224 (16/1294) Margaret McMurdo P and Gotterson and Morrison JJA 6 September 2016

General Civil Appeal – where the appellant admitted to six charges of disbursing trust money without authority – where the appellant admitted the conduct amounted to professional misconduct – where the Tribunal concluded that the appellant was not a fit and proper person to remain in legal practice, removing his name from the roll of practitioners – where the appellant appeals the order made on the basis that: (1) the Tribunal did not consider the treating clinical psychologist’s opinion as to his risk of re-offending; and (2) the Tribunal did not properly apply the test to determine whether the appellant’s name should be struck from the roll of practitioners – where the treating clinical psychologist’s opinion was that the risk of re-offending was very low – where an order removing a practitioner’s name from the roll of practitioners should only be made when the probability is that the practitioner is permanently unfit to practice – whether the Tribunal did not have regard to a material consideration – where in deciding the contested issue of whether an order removing the appellant’s name from the roll ought to be made, it was incumbent upon the Tribunal to have regard to all material considerations – where consistently with the decision in House v The King (1936) 55 CLR 499, a failure to take into account a material consideration would bespeak error in exercise of the discretion – where the opinion expressed by the clinical psychologist in his second report and the reasons there stated for it, were a material consideration for the Tribunal – where that it had requested the report puts its materiality and the materiality of the reasons for it beyond question – where it is clear that the Tribunal did not make express reference to the opinion in its reasons – where only one conclusion can be drawn, that is that the Tribunal did not have regard for this material consideration when it determined that the appellant’s name should be removed from the roll of practitioners – where the appellant’s submission that the exercise of the discretion by the Tribunal in ordering his name to be removed from the roll was flawed on that account is accepted – whether, if so, in the re-exercise of the discretion under s 456 of the Legal Profession Act 2007 (Qld), a different order should be imposed against the appellant in substitution of the removal order – where with the benefit of the psychologist’s unchallenged opinion that a risk of re-offending is very low and having regard to the factors listed by him as justifying it, including the appellant’s developed resiliency, his capacity to cope under pressure, and evidence of his functioning effectively and making good decisions, it cannot be concluded that the appellant is now permanently unfit to practice – where this approach is fortified by his subsequent conduct in admitting his guilt, repaying moneys when it was appropriate to do so, and withdrawing from legal practice since 2010 – where given that the appellant is not now engaged in any way in legal practice and has not expressed an intention to be so, there is no utility in an order suspending him from practice – where, however, aspects of his misconduct justify disapprobation by way of public reprimand. Appeal allowed. Order 1 made by the Tribunal on 8 January 2016 be set aside. Order in substitution therefor: the respondent is publicly reprimanded, in the event the respondent applies for a practising certificate, his application be accompanied by a contemporaneous report of a psychiatrist or a psychologist which expresses an opinion as to the risk of the respondent’s engaging in conduct of the kind for which he is publicly reprimanded and if the application is granted, any practising certificate be issued subject to a condition that the respondent practise under the supervision of another certified legal practitioner and that he not have responsibility for operating a trust account. Otherwise confirm the orders of the Tribunal made on that date. Respondent to pay the appellant’s costs on the standard basis.

Flori v Queensland Police Service [2016] QCA 239 (15/12077) Gotterson and Morrison and Philip McMurdo JJA 20 September 2016

Application for Leave Queensland Civil and Administrative Tribunal Act – where a complaint was made to police that undue force had been used in an arrest – where the event was captured on CCTV footage and was published by the media – where the police commenced an investigation into who was responsible for the release of the footage and the applicant was a suspect – where a search warrant was obtained and executed at the applicant’s house – where the police found information personal to the applicant and this information was recorded in an Executive Briefing Note – where an article was published by the media containing this personal information – where the applicant complained that there had been a breach of the Information Privacy Act 2009 (Qld) (the Act) by the journalist and the Queensland Police Service – where the applicant claimed compensation from the Queensland Civil and Administrative Tribunal (QCAT) – where it was found that the respondent breached the Act but that none of the privacy principles in the Act applied to information obtained by the police service in an investigation of this kind due to the exemption cl 3 of sch 1 of the Act – where the Appeal Tribunal of QCAT dismissed an appeal by the applicant, agreeing that the privacy principles did not apply because of the exemption – where the applicant appeals to this Court pursuant to s 149(2) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether, on the correct construction of cl 3 sch 1 of the Act, the privacy principles apply to the Executive Briefing Note – where the factual findings, firstly, the complaint (one of misconduct) was referred to the Commission pursuant to ss 37 and 38 of the Crime and Misconduct Act 2001 (Qld) (CM Act); secondly, the Commission assessed the complaint and sent it back to the Commissioner of Police; thirdly, the referral to the Commissioner of Police was to deal with the complaint by way of investigation and review, in the meantime sending interim reports to the Commission; fourthly, the Commissioner of Police was to deal with the complaint subject to the Commission’s monitoring role, make it plain that the complaint was sent to the Commission and referred back to the Commissioner of Police, to be dealt with by the Commissioner of Police – where by doing so the Commission exercised the powers under s 35(1)(b)-(d), or s 46(2)(b) of the CM Act – where upon that referral the Commissioner of Police had responsibility to deal with the complaint under s 42(5), but under the monitoring role of the Commission: s 46(2)(b) and s 48(1)(c) – where as O’Keefe & Ors v Commissioner of the Queensland Police Service [2016] QCA 205 held, that means the complaint was being investigated by the Commissioner of Police under the CM Act, because the CM Act expressly requires the Commissioner of Police to deal with the complaint by investigating it – where simply expressed, the relevant part of the primary object in s 3 of the Information Privacy Act 2009 (Qld) (Privacy Act) is to provide a right of access to personal information unless that is contrary to the public interest – where an investigation into police officers under part 7 of the PSA Act occurs in the context of the position of police officers within the QPS, and involves considerations such as those referred to in the High Court decision in Police Service Board v Morris (1985) 156 CLR 397 – where a service such as the QPS involves a sacrifice of certain rights on the part of individual officers, who thereby become part of a disciplined armed force, able to commit acts that would otherwise be categorised as offences, and committed to the enforcement of the criminal law for the benefit of the community – where those special factors, acknowledged in Morris, provide a reason why the Legislature decided that the access that others might enjoy, to personal information arising in the course of an investigation into misconduct, is curtailed when it involves officers of the QPS. Leave to appeal granted. Appeal dismissed. Costs.

Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 (15/9986) Margaret McMurdo P and Fraser and Morrison JJA 27 September 2016

General Civil Appeal – where the appellant appeals the decision of the primary judge dismissing two applications for statutory orders of review – where the first application related to a decision of the Land Court concerning applications for a mining lease and environmental authority – where the second application concerned a subsequent decision of the third respondent to grant an environmental authority for the proposed mine – where the primary judge concluded that a finding of the Land Court that the proposed mine would not produce an impact that would constitute or cause environmental harm was open on the evidence and did not reveal legal error in the member’s approach – where the appellant submitted that the primary judge erred by allowing the Land Court when construing certain sections of the Mineral Resources Act 1989 (Qld) to give zero weight to the environmental harm caused by emissions from the transport and burning of coal after it was removed from the proposed mine – where the second respondent submitted that the appellant wrongly assumed that emissions in connection with the mine would cause environmental harm or an adverse environmental impact – whether under the Mineral Resources Act 1989 (Qld) the Land Court needed to consider the impact of activities which would not be carried on under the authority of the proposed mining lease – whether under the Environmental Protection Act 1994 (Qld) the Land Court was obliged to give weight to the environmental harm caused by emissions from the mine – where title to minerals is regulated by different provisions of the same Act – where by force of s 8(2) of the same Act, the Crown has the property in coal found in Queensland (except in certain narrowly defined circumstances which need not be considered here) – where in that context, s 310 provides that “minerals lawfully mined under the authority of a mining lease cease to be the property of the Crown or person who had property therein and become the property of the holder of the mining lease subject however to the rights to royalty payments under this Act of the Crown or any other person” – where that title to lawfully mined minerals (including coal) is not made subject to any qualification other than the rights of those entitled to royalty payments – where the startling proposition that the Mineral Resources Act regulates private sales or other dispositions of a mineral owner’s otherwise unqualified title to lawfully mined minerals finds no foothold in any statutory provision to which the appellant referred – where in the context of s 269(4)(i), s 269(4)(j) allows consideration only of impacts caused by “operations to be carried on under the authority of the proposed mining lease” – where the relevant operations in this case are confined to mining coal within the boundaries of the proposed mining lease – where it is outside the Land Court’s jurisdiction under s 269(4)(j) to consider the impact of activities which would not be carried on under the authority of the proposed mining lease – where any impact of scope 3 emissions is not a relevant consideration under that paragraph – where the member took scope 3 emissions into account in a way which is not amenable to statutory review on either view of the legislation – where the member took into account his finding that the power stations would burn the same amount of coal and produce at least the same amount of scope 3 emissions whether or not the mine proceeded; if the mine proceeded it would not increase the amount of global greenhouse gases or any environmental impact resulting from those gases – where as the second respondent submitted, the finding in the Land Court was not that there was “replacement harm”, but that there would be the “same or greater harm” if the mine did not proceed than if it did proceed – whether that is a correct analysis is not to the point – where the appellant’s applications for statutory review did not involve a merits review but depended upon the existence of one of the legal errors contended for in the applications for statutory review – where because neither of the Mineral Resources Act and the Environmental Protection Act precluded the member from taking into account the accepted evidence that scope 3 emissions and any consequential effect upon the climate would not be increased by the mine proceeding, there was no legal error such as would justify statutory review – where accepting that the concept of “environmental harm” is of great significance in other aspects of the operation of the Environmental Planning Act, the relevant function of the Land Court is not qualified by any requirement about the manner in which it must consider the identified matters or about the weight to be given to any of the relevant considerations – where even upon the premise that the Land Court was obliged to seek to further that object when considering the recommendations to be made to the EPA Minister, the member was not obliged to ignore evidence to the effect that global greenhouse gases would not be increased by the mine proceeding – whether there was legal error in the Land Court’s decision. Appeal dismissed. Costs.

CRIMINAL APPEALS 

R v Maher [2016] QCA 219 (16/67) Morrison and Philippides JJA and Burns J 2 September 2016

Sentence Application – where the applicant attended a motocross track to ride his motorcycle and rode it in an area where pedestrians were standing – where the applicant performed a wheel-stand and travelled at high speed over 85 metres – where the applicant collided with the complainant, a nine year old boy – where the complainant sustained serious injuries amounting to grievous bodily harm – where the applicant pleaded guilty to the offence of dangerous operation of a vehicle causing grievous bodily harm – where the applicant was sentenced to imprisonment for 15 months, suspended after three months, with an operational period of three years – where the applicant’s driver’s licence was disqualified for a mandated period of six months – where the applicant applies for leave to appeal against sentence on the period of actual imprisonment – where properly characterised, the conduct here, whilst undoubtedly foolish and dangerous, did not warrant the description of “dangerous driving … of an extreme kind” – where it was that characterisation that led the learned sentencing judge to impose a period of actual imprisonment – where that error has the result that this Court must re-sentence Mr Maher – where he was 19 and a-half when the offence occurred, and had: an inconsequential criminal history; good prospects of rehabilitation; good references as to his character and work history; pleaded guilty and thereby cooperated with the administration of justice; and expressed appropriate remorse – where to the extent that his failure to admit fault from the earliest time was criticised, it has to be noted that when the police asked to interview him he acted on the instructions of his lawyers. Application granted. Appeal allowed. Set aside the order that suspended the term of imprisonment after serving three months imprisonment. In lieu thereof, order that the term of imprisonment be suspended forthwith. Otherwise confirm the sentence imposed on 15 March 2016.

R v Rae [2016] QCA 228 (15/245) Margaret McMurdo P and Morrison JA and Atkinson J 13 September 2016

Sentence Application – where the applicant pleaded guilty to one count of trafficking methylamphetamine, two counts of supplying cannabis and one count of extortion – where the offending activated a suspended sentence of 12 months imprisonment – where the applicant was sentenced to six years imprisonment for the trafficking and lesser concurrent terms of imprisonment for the other drug charges and the extortion – where the primary judge ordered the remainder of the suspended sentence also be served concurrently – where a related offender on the drug charges was sentenced to five and a half years imprisonment – where the applicant was trading at a lower level than the related offender – where the applicant provided significant co-operation to police and gave evidence against a co-offender and the principal offender on the extortion charge – where the principal offender subsequently pleaded guilty – where the principal offender was sentenced, after the applicant was sentenced, to two years imprisonment, wholly suspended – whether the primary judge gave sufficient weight to the applicant’s special co-operation when sentencing – whether there should be parity between the sentences of the applicant, the related offender on the drug charges and the principal offender on the extortion charges – where the applicant pleaded guilty to grossly anti-social conduct which warranted a firm deterrent penalty – where additional relevant factors were that the applicant both pleaded guilty to all the offending at an early stage and assisted the authorities in a most significant way – where he not only gave a full and frank statement to police implicating his co-offender, Ryan, in the extortion charge, he also gave evidence at Ryan’s pre-trial hearing as a result of which Ryan ultimately pleaded guilty – where, as here, an offender has given this special co-operation in respect of one offence for which he is to be sentenced but not in respect of other offences, the court should nevertheless take into account that special co-operation in determining the appropriate sentence on all offences, whether imposed concurrently or cumulatively – where the applicant’s special co-operation on the extortion charge, the material tendered in his favour at sentence and his pleas of guilty are strong indications that he has reformed and is no longer using illegal drugs – where it is considered prudent that on one count of supplying dangerous drugs he be placed on probation with special conditions that he abstain from the use of illegal drugs and participate in drug testing and substance abuse counselling as required by his probation officer. Application for leave granted. Appeal allowed. Sentences imposed at first instance set aside and instead numerous concurrent sentences imposed with probation on the usual terms and conditions with additional conditions that he abstain from the use of illegal drugs and participate in drug testing and substance abuse counselling as required by an authorised Corrective Services Officer.

R v GAZ [2016] QCA 229 (16/142) Margaret McMurdo P and Fraser JA and Daubney J 13 September 2016

Appeal against Conviction – where the appellant was convicted of indecent treatment of a child – where the complainant was very young and gave three different accounts of the offending – where the first preliminary complaint to a kindergarten teacher was unprompted and spontaneous – where the subsequent complaint to her mother was unrelated – where both complaints were consistent with the complainant’s evidence in cross-examination – where the jury were entitled reject the appellant’s evidence – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt – where after reviewing the evidence, despite the complainant’s tender age, the delay and her earlier inconsistent statements, the jury were entitled to accept her account in cross-examination of the alleged offence as reliable beyond reasonable doubt – where the complainant gave two recorded statements to police – where the appellant contends the primary judge should have exercised the discretion to exclude the evidence as the complainant’s account was unlikely to be reliable – where defence counsel was fettered in challenging the differing accounts in the statements in cross-examination as the complainant could not recall them – where defence counsel did not apply to exclude the evidence at trial and this was a reasonable forensic decision – where the prosecution case was particularised on the basis of the complainant’s evidence in cross-examination, which made her statements to police on 4 and 6 August 2014 inconsistent with the prosecution case – where had evidence of them not been led, the prosecution case would have been stronger as the jury would have believed, wrongly, that the complainant had first made a complaint to her teacher, a consistent complaint to her mother and then given consistent evidence that the appellant had her touch his penis – where there were obvious sound forensic reasons for defence counsel not to apply to exclude these statements – where the failure to exclude them has not deprived the appellant of a chance of an acquittal or caused a miscarriage of justice – where the complainant’s mother made repeated statements in cross-examination that the appellant pleaded with her not to go to police when first made aware of the complainant’s allegations – where the mother stated in cross-examination that this was evidence of guilt – where the mother stated in cross-examination that the appellant was so aggressive that she was in fear of her life – where the judge was not invited to, and did not, direct the jury to disregard this evidence – whether there was a miscarriage of justice – where it is unfortunate that neither counsel asked the judge to direct the jury on the evidence impugned in this contention – where the complainant’s mother not only unexpectedly and gratuitously volunteered that the appellant importuned her not to go to the police, she gave her strong view as to the inference of guilt that she considered should be drawn from it – where the judge should also have directed the jury that people in the appellant’s position, confronted by their young daughter with an allegation of sexual abuse, may react in different ways; some may seek to discuss the matter before the police were called in case there was an innocent misunderstanding; as such a reaction could be entirely consistent with innocence, no inference of guilt could be drawn from it – where in the absence of those jury directions, there is a real possibility that the jury used this evidence to more comfortably accept the reliability of the very young complainant’s evidence – where, in addition, the complainant’s mother in her evidence in cross-examination stated that the appellant was very aggressive and that she was so in fear of her life that she relocated – where this unexpected and highly prejudicial response from the mother in cross-examination was regrettable, particularly as it followed on her uninvited and damning interpretation of the appellant’s request to speak to her and the complainant before the police were contacted – where it is perhaps surprising that defence counsel did not immediately apply to discharge the jury, or at the very least, clear jury directions to disregard this outburst were required from the judge – where in the absence of such a direction, there is a real possibility that the jury may have used the mother’s claim to more comfortably accept the complainant’s evidence as reliable. Appeal allowed. Verdict of guilty set aside. Retrial ordered.

R v JX [2016] QCA 240 (15/229) Margaret McMurdo P and Morrison JA and North J 23 September 2016

Appeal against Conviction – where the appellant was convicted of two counts of rape of a child – where the complainant maintained her account of the alleged offending and gave a rational explanation for not making a contemporaneous complaint – where the judge directed the jury to carefully scrutinise the appellant’s evidence – where the complainant’s account was uncontradicted – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt – where the complainant gave a rational explanation as to why she did not make a contemporaneous complaint: she was ashamed and did not want anyone to know – where after reviewing the whole of the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of both offences – where a jury note requested “direction” from the judge on “one member of the jury informing of being raped as a younger woman” – where the judge’s initial directions to the jury informed them of the importance of impartiality and all jurors indicated they could be impartial – where the note was consistent with the jury complying with the judge’s directions – whether the note created an apprehension or suspicion that the jury was not impartial – where, significantly, the note did not state that the juror concerned was acting partially or seeking to improperly influence other jurors – where the note was consistent with the jury conscientiously following the judge’s initial directions: to inform the court if any information that was not in evidence was brought into the jury room – where the judge did not give directions to the jury about the note before taking the verdict – where the note indicated uncertainty about the corporate state of mind of the jury – where it was necessary for the judge to remind all jurors of the obligation to be impartial – where this Court should follow the line of authority accepted at appellate level in New South Wales (Alameddine v R [2012] NSWCCA 63) and South Australia (R v Lapins [2007] SASC 281) that, as a general rule, a trial judge should not take a verdict until any requests from the jury for direction have been answered as fully as possible – where the jury note in this case was a clear and courteous request for judicial direction following one jury member telling the others that she was raped as a younger woman – where the note was effectively a question over the applicable law – where as the trial judge correctly apprehended, despite the initial judicial directions as to impartiality, it was necessary to remind all jurors of their obligation to be impartial, to decide this case on the evidence and to enquire if each juror could do so – where a further general enquiry as to whether the jury or any juror had any concerns or questions would also have been prudent – where the jury did not have the benefit of the directions foreshadowed by her Honour before returning their guilty verdicts – whether there was a miscarriage of justice. Appeal against conviction allowed. Verdicts of guilty are set aside. A retrial is ordered.

Davis v Commissioner of Police [2016] QCA 246 (15/0264) Fraser JA, Dalton, North JJ 30 September 2016

Application for Leave s 118 DCA (Criminal) – where the applicant was convicted by a Magistrate of one count of common assault – where the applicant appealed to the District Court – where the District Court set aside the conviction and remitted the matter to the Magistrates Court for retrial – where the applicant makes an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the District Court erred in the exercise of its discretion in remitting the matter to the Magistrates Court – where s 225(1) provides that, “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just” – where there was no argument that the District Court Judge did not have the power to make the orders which he made – where the respondent did not oppose a grant of leave – where the respondent’s submission was that this Court should send the matter back to the District Court Judge so that the District Court Judge could make a determination on the substantive appeal – where by the time the prosecutor came to cross-examine Dr Davis it was clear that the main task which would confront the Magistrate was making credit findings as between the complainant’s mother on the one hand and Dr Davis on the other – where the prosecutor did not challenge Dr Davis’ credit at any time during the cross-examination – where the prosecutor then made submissions to the Magistrate that Dr Davis was dishonest in his evidence, and the Magistrate made findings that Dr Davis’ evidence was not “worthy of credit” and that his evidence had been reconstructed, “to suit his own purposes” – where the trial before the Magistrate miscarried because he did not advert to this point and made credit findings against Dr Davis when they were not fairly open to him having regard to the conduct of the trial – where the question for this Court then was whether the District Court Judge ought to have remitted the case for retrial – where the evidence of the child complainant was, so far as the transcript reveals, grossly unreliable – where the mother’s evidence was given in an interrupting and argumentative fashion and was self-contradictory on many significant points of fact – where the discretion of the District Court Judge as to whether to remit the matter to the Magistrate or not did miscarry – where on the evidence and the conduct of the case before the Magistrate a verdict of an acquittal ought to have been entered. Grant leave to appeal. Allow the appeal. Set aside the orders of the District Court. Quash the conviction in the Magistrates Court. Enter a verdict of acquittal on the charge of common assault.