Forrest v Commissioner of Police [2017] QCA 132

The first alleged that he was travelling at 70 kilometres an hour in a 60 kilometre per hour zone. The second infringement notice alleged that the applicant had been following another vehicle too closely. The applicant decided to challenge these charges and there was a trial of the matter in the Magistrates Court.

Evidence was given by Senior Constable Gresham and by the applicant. The applicant also cross-examined the police officer. At the conclusion of the trial, and after hearing submissions from both parties, the learned Magistrate convicted the applicant. The applicant then appealed those convictions pursuant to s 222 of the Justices Act.

Section 222(1) provides relevantly:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

Section 223(1) of the Justices Act provides:

“An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.”

The applicant prepared his own notice of appeal, and, understandably, it is more discursive and lengthy than such a notice would be if a competent lawyer had drafted it. Nevertheless, ignoring some superfluous matters, the matters that the applicant sought to raise by way of appeal are clear enough. He challenged the factual conclusions of the learned Magistrate on the grounds that the evidence of the police officer had been fabricated. He raised as a ground that he had not been allowed to present: “…case documents and evidence as prepared –” and that the Magistrate: “…did not take these documents into evidence or consideration –” in coming to the ultimate decision.

Although the appeal raised a challenge to a finding of fact based on credit, the applicant pointed to matters that may be capable of being regarded as affecting that finding. This included changes that had been made to the charges in relation to the precise location at which the offences were alleged to have been committed (which might affect the speed zone), as well as the kind of vehicle that he was allegedly following too closely. The applicant raised some other issues about the behaviour of Senior Constable Gresham on the day which he had contended were relevant in considering that officer’s credit. Because of the orders that this Court proposes to make, it is undesirable to canvass those issues in any more detail.

These grounds are capable of being regarded as involving allegations of breaches of procedural fairness and also as raising an arguable attack upon the findings of credit based upon extraneous material.

The material filed by the applicant in support of his appeal to the District Court comprised 21 documents, including the whole of the transcript of the conversation between him and police officer.

In addition, the respondent placed the transcript of proceedings before the Magistrate before the learned District Court judge. The applicant’s outline was single-spaced and printed in small font and contained almost 100 paragraphs. His material also included the police officer’s witness statement and the written submissions that the applicant had placed before the learned Magistrate. The respondent submitted a written outline of about seven pages.

The appeal came on for hearing at just after 10 am on 11 November 2016 and finished a little less than an hour later, when his Honour proceeded to give an ex tempore judgment giving his reasons for dismissing the appeal. The reasons are brief. It is desirable to set them out in full:

“The appellant was convicted in the Magistrates Court of following another vehicle too closely and exceeding the speed limit of 60 kilometres an hour on the relevant road.

His appeal is based upon the [M]agistrate’s acceptance of the police officer’s credibility.

Both the officer and Mr Forrest gave evidence in the Magistrates Court.

The appellant disputes that he breached any traffic laws and submits that the Magistrate should not have accepted the officer’s credibility. He even went so far as to say that the officer lied to the Magistrates Court. He raised other issues about the officer’s behaviour at the scene, and the Magistrate’s alleged behaviour in not permitting the officer to be cross-examined on his statement, although the appellant did so cross-examine the officer.

Having heard the submissions by each party, and read the material filed, I cannot see any reason to question the version of events by the police officer as set out in the transcript of the officer’s recording of his conversations with the appellant, which was made at the scene on the day.

The officer there told the appellant that he, the officer, was travelling at 60 kilometres an hour and the appellant ‘cruised straight past him’ in a 60 zone, and earlier that the appellant was following another vehicle too closely. Those statements by the officer to the appellant at the scene were not disputed at the time by the appellant.

In the circumstances, I am not satisfied that any error of law or fact is demonstrated.

The appeal is dismissed.”

It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal. Yet this is precisely what the respondent submitted was the task of the District Court. In this case, a submission which the learned judge accepted.

In paragraph 3.1 of the respondent’s outline of argument before the District Court the submission was made that before that court could interfere with the Magistrate’s decision, the appellant had to demonstrate that the Magistrate had acted upon a wrong principle, had allowed extraneous or irrelevant material to guide or affect him or her or had mistaken the facts or had failed to take into account some material consideration.

This submission was supported by reference to the famous dictum in House v The King.¹ Of course, that case has absolutely nothing to do with the task of an appellate Court in a case like this one. It is authority for the proposition that in an appeal against an exercise of discretion an error of fact or law must be demonstrated before an appellate Court is justified in interfering. The submission was therefore wrong.

Yet an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case. That has been established by numerous cases: see for example Fox v Percy,² Warren v Coombes,³ Dwyer v Calco Timbers.⁴ Consequently, the learned District Court judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.

It is true that this appeal involved a challenge to findings based to a large extent, and perhaps entirely, upon issues of credit. However, the appellant had identified certain matters which, he contended, would lead to the conclusion that the evidence of the police officer should be rejected and that the prosecution had failed to establish the necessary facts to support the convictions. The other grounds of appeal appear to be capable of being determined upon the content of the transcript itself.

An appeal to this court from an order of the District Court dismissing an appeal under s 222 of the Justices Act requires leave. Relevantly, an applicant for leave must show that an appeal is necessary to correct a substantial injustice to the applicant and that there is a reasonable argument that there is an error to be corrected on appeal. In my opinion the applicant has satisfied both of these requirements. First, it cannot be said that the appeal to the District Court has yet been heard. His Honour’s concluded that he could not see:

“[A]ny reason to question the version of events by the police officer as set out in the transcript of the officer’s recording of his conversations with the appellant, which was made at the scene on the day.”

The second conclusion to which his Honour came, which was his ultimate conclusion, was that his Honour was:

“[N]ot satisfied that any error of law or fact is demonstrated.”

In drawing these conclusions, his Honour appears to have accepted the submission made by the respondent based, incorrectly, upon House v The King.⁵ That submission had been repeated orally by counsel for the respondent in his submissions. It was, for the reasons I have explained, not relevant to the task that his Honour had to perform. His Honour had to determine for himself after examining the evidence whether he was satisfied to the criminal standard that the applicant had committed the two offences. His Honour never turned his mind to that question.

Further, it is not the function of the District Court in an appeal under s 222 merely to ask whether there is any reason to question the evidence of the prosecution. This reverses the onus of proof. The issue is whether the prosecution had proved the necessary facts beyond reasonable doubt. Putting the matter in the way that his Honour did required the applicant to prove that the prosecution evidence should be rejected.

For these two reasons, it cannot be said that the applicant’s appeal has yet been heard.

There is a further important reason why the applicant should be granted leave to appeal and why his appeal should be allowed. It is fundamental that a judicial decision must be a reasoned decision and not an arbitrary one. If the process of reasoning is not exposed in written reasons then a reasoned decision cannot be distinguished from an arbitrary one. Nor is it possible for an appellate court to do its duty of reviewing such a decision if a judge gives no explanation for his or her reasoning. The giving of reasons for a judicial decision serves at least four purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted, as well as revealing the basis of the judge’s decision. Second, the giving of reasons furthers judicial accountability. Third, in some cases, the resolution of a dispute may involve the formulation of rules that can be applied in future cases. Fourth, it makes appeals and applications for leave to appeal workable: see Soulemezis v Dudley (Holdings) Pty Ltd.⁶ The first two and the third reasons are applicable in the present case.

In a case in which an applicant raises distinct and understandable grounds of appeal it is obligatory for an appellate court in the execution of its duty to rehear the case to consider such grounds by actual reference to the evidence in the case. It must then give reasons which explain in sufficient detail the process of reasoning that has led to the decision. A failure to give adequate reasons may constitute a substantial injustice to the parties, especially the party who lost.

At present, it is simply not possible to know why the applicant’s appeal was dismissed. And therefore, this court cannot carry out its function of determining whether that decision was correct or not on the merits.

The failure to give reasons is itself a reason, and a sufficient reason on its own, why this application must be granted and why the appeal should be allowed.

In my view the applicant has successfully demonstrated both that he has suffered a substantial miscarriage of justice and that he has good grounds of appeal to this court. I would grant leave to appeal and allow the appeal. I would remit the matter to the District Court for a hearing of the applicant’s appeal under s 222 in accordance with these reasons.

GOTTERSON JA: I agree.

MORRISON JA: I also agree.

SOFRONOFF P: The order of the court is that the applicant have leave to appeal. The appeal is allowed. The order of the District Court made on 11 November 2016 is set aside. The matter is remitted to the District Court for hearing of the applicant’s appeal. There is no order as to costs.