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[2017] QCA 255
Court of Appeal (Qld)
2017-11-01
Fraser and Philippides JJA and Bowskill J
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: McDonald v Queensland Police Service [2017] QCA 255
PARTIES: McDONALD, Clinton Sommerland (applicant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S: CA No 75 of 2017 / DC No 198 of 2016
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Southport – [2017] QDC 86 (Kent QC DCJ)
DELIVERED ON: 1 November 2017
DELIVERED AT: Brisbane
HEARING DATE: 4 August 2017
JUDGES: Fraser and Philippides JJA and Bowskill J
ORDERS: The application for leave to appeal is refused.A warrant issue for the arrest of the applicant, to lie in the registry for seven days.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – nature of an appeal which may be brought by leave to the Court of Appeal from the District Court in its appellate jurisdiction – whether it is limited to errors of law / APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES –GENERALLY – where the applicant was convicted in the Magistrates Court of serious assault of a police officer (by spitting) – where the District Court dismissed the applicant’s appeal from the judgment of the Magistrates Court – whether leave to appeal ought to be granted – where there is no reasonable argument that there is any error to be corrected / Criminal Code (Qld), s 23, s 668E(1) / District Courts Act 1891 (Qld), s 147 / District Courts Act 1958 (Qld), s 143, s 144, s 146 / District Courts Act 1967 (Qld), s 92, s 93 / District Court of Queensland Act 1967 (Qld), s 118, s 119 / Justices Act 1886 (Qld), s 222 / ACI Operations Pty Ltd v Bawden [2002] QCA 286, cited / BCM v The Queen (2013) 88 ALJR 101; (2013) 303 ALR 387; [2013] HCA 48, cited / Burke v Commissioner of Police [2016] QCA 184, considered / Clark v Trevilyan [1963] QWN 11, cited / Commissioner of Police v Al Shakarji [2013] QCA 319, cited / Conquest v Bundaberg Regional Council [2016] QCA 203, considered / Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCAFC 844, cited / Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, cited / Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited / Gobus v Queensland Police Service [2013] QCA 172, considered / Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited / Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; [2003] HCA 61, cited / Johnson v Queensland Police Service (2014) 67 MVR 543; [2014] QCA 195, cited / Jones v West-Star Motors Pty Ltd [1995] ATPR 41-447; [1995] QCA 498, considered / Kriston v Commissioner of Police [2017] QCA 230, cited / Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, cited / Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited / Osgood v Queensland Police Service (2010) 56 MVR 266; [2010] QCA 242, cited / Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, considered / Pickering v McArthur [2005] QCA 294, considered / Pilmer v No 1 South Oriental and Glanmire Gold Mining Company Ltd [1900] 10 QLJ 87, cited / Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, considered / Rigney v Littlehales [2005] QCA 252, cited / Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited / Shambayati v Commissioner of Police [2013] QCA 57, cited / SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited / Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited / The Queen v Al Shakarji [2016] QCA 29, cited / Tsigounis v Medical Board of Queensland [2006] QCA 295, considered / Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited / White v Commissioner of Police [2014] QCA 121, cited / Zinace Pty Ltd v Tomlin [2003] QCA 102, cited
COUNSEL: A M Nelson for the applicant / J Robson for the respondent
SOLICITORS: Senior Legal for the applicant / Queensland Police Service for the respondent
FRASER JA: I have had the advantage of reading the reasons for judgment of Bowskill J. I agree with those reasons and with the orders proposed by her Honour.
PHILIPPIDES JA: I agree with the reasons for judgment of Bowskill J and with the orders proposed.
BOWSKILL J: The applicant, Mr McDonald, seeks leave to appeal against a judgment of the District Court given on 13 April 2017, dismissing his appeal from a judgment of the Magistrates Court, by which he was convicted of serious assault of a police officer (by spitting) and sentenced to six months’ imprisonment, to be suspended after serving two months in custody.
If leave is granted, the grounds on which Mr McDonald wishes to appeal are:
“(1) The learned Judge on appeal erred in characterising the appeal as a challenge against factual findings only, there also being a complaint (paragraph 21 of the Appellant’s Outline) that the learned Magistrate erred by applying the wrong standard of proof.
The learned Judge on appeal erred by failing to conduct a rehearing on the evidence below.
The learned Judge on appeal erred in finding that the Magistrate had considered and rejected the defence of accident.
The learned Judge erred by casting the onus upon the Appellant to lead ‘expert or other evidence about different results from deliberate or accidental spitting’ (paragraph 15 of the Judgment).
The learned Judge on appeal and the learned Magistrate erred in finding that the Appellant turned his head immediately preceding the allegation of blowing/spitting on the officer;
The learned Judge on appeal and the learned Magistrate erred in finding that the Appellant blew/spat on the officer;
The learned Judge on appeal erred in finding that the conviction was not unsafe and unsatisfactory.”
The nature of any appeal which may be brought by leave to this Court from the District Court in its appellate jurisdiction is in issue as between the applicant and the respondent. The respondent submits any appeal would be limited to errors of law;1 the applicant submits that the appeal is not so constrained.2 Although, for reasons which will be explained below, I would refuse leave in any event, because I do not consider any of the grounds have merit, it is necessary to address the question of the nature of the appeal right in this context, because it is relevant to the question whether leave should be granted, and because of the uncertainty that presently surrounds the issue, as reflected in the opposing submissions.
Background
Briefly, by way of background, the applicant was charged that on 1 January 2016 at Surfers Paradise he assaulted a police officer, acting in the execution of her duty, by spitting blood and saliva on her.3 He pleaded not guilty, and a trial of the charge4 proceeded before a Magistrate at Southport on 20 July 2016.5 It was not disputed that blood spots on the police officer’s face came to be there as a result of the applicant. The applicant’s case was that the Crown did not exclude the possibility that this was not the result of a deliberate act of spitting on his part; but rather as a result of some fluids coming out of his mouth when he was endeavouring to answer a question put to him by police. The applicant had earlier been involved in an altercation which caused an injury to his mouth, including a broken tooth, resulting in a large amount of blood on his mouth and chin area.6 For detailed reasons, given orally on 26 July 2016,7 the Magistrate found the applicant guilty of the serious assault charge, being satisfied beyond reasonable doubt that the applicant “deliberately and forcefully ejected blood and saliva from his mouth onto [the police officer’s] face”.8
The applicant appealed his conviction of this charge to the District Court, under s 222 of the Justices Act 1886. The grounds of his appeal were:
“1. The learned Magistrate erred in making a finding of fact that was not available to her that the Appellant turned his head immediately preceding the allegation of blowing/spitting on the officer;
The learned Magistrate erred in finding that the Appellant blew/spat at the officer;
The conviction was unsafe and unsatisfactory.
The learned Magistrate failed to consider and in the alternative erred in rejecting the defence of accident which was raised in the material and by the Appellant.”9
The appeal to the District Court was dismissed, the judge concluding that none of the grounds of appeal had substance.10
Nature of an appeal from the District Court in its appellate jurisdiction
Statutory context
An appeal is a creature of statute. The nature of the appeal right conferred in any particular case therefore depends on construction of the statute concerned.11
Relevantly, ss 118 and 119 of the District Court of Queensland Act 1967 provide:
“118 Appeal to the Court of Appeal in certain cases
This section –
does not apply to an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4; but
does apply to an appeal from other judgments of the District Court in the exercise of its criminal jurisdiction, including on an appeal brought before the court under the Justices Act 1886, section 222.
A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment –
is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit.
Subject to sections 118A and 118B,12 a party who is dissatisfied with any other judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.
…
An appeal from the District Court in its original jurisdiction is by way of rehearing.
…
119 Jurisdiction of Court of Appeal
On the hearing of an appeal the Court of Appeal shall have power to draw inferences of fact from facts found by the judge13 or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.
On the hearing of any appeal the Court of Appeal –
may order a new trial on such terms as the court thinks just; and
may order judgment to be entered for any party, or may make any other order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and
may make such order with respect to the costs of the appeal as it thinks proper;
and every such order shall be final.”14
Previously, s 92 of the District Courts Act 1967 conferred a right of appeal from a final judgment of the District Court, whether in its original or appellate jurisdiction, without leave in various cases (primarily civil matters involving more than $10,000) (s 92(1)), but otherwise required leave to appeal (s 92(2)). In similar terms to s 118(8), s 92(3) provided that an appeal from a judgment of a District Court in its original jurisdiction sitting without a jury, in particular cases, was to be by way of rehearing. Section 93, dealing with the jurisdiction of the Court of Appeal, was in the same terms as s 119.
The first point to be made is that an appeal from the District Court in its appellate jurisdiction, should leave be granted, is not by way of rehearing; it is an appeal in the strict sense,15 in which the Court considers whether there was error, on the basis of the material before the court below.16 As articulated in Fox v Percy (2003) 214 CLR 118 at [32], on a strict appeal, the Court’s:
“sole duty … is to determine whether error has been shown on the part of the [court below]. This Court is not engaged in a rehearing. As such, it is not this Court’s task to decide where the truth lay as between the competing versions of the [witnesses].”17
As a matter of general principle, however, a strict appeal is not limited to errors of law; intervention would be justified in the case of errors of, or in respect of, fact also – the clearest example of which is errors of factual inference.18
But beyond that characterisation, in determining the nature of an appeal from the District Court in its appellate jurisdiction, it is necessary to pay particular attention to s 119(1). Section 119(1) expressly permits this Court, on the hearing of any appeal, to draw inferences of fact, but provides that where, as here, the appeal is not by way of rehearing, “such inferences shall not be inconsistent with the findings of the judge or jury”.
It may immediately be observed that there is now no work for this last part of s 119(1) to do, in so far as matters involving findings of a jury are concerned. It is only appeals from the District Court in its appellate jurisdiction that are not by way of rehearing (cf s 118(8)), and no decision made by the District Court in its appellate jurisdiction will involve a jury. This last part of s 119(1) seems to have first emerged upon the enactment of the District Courts Act of 1967 (the relevant provision then being s 93).19 At that time, s 92(3) provided that an appeal to the Supreme Court from a judgment of a District Court in its original jurisdiction sitting without a jury shall be by way of rehearing, in certain cases. In that context, s 93, which then (as s 119(1) does now) provided that, “where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the Judge or jury”, had work to do – because an appeal from the District Court, in its original jurisdiction, sitting with a jury, would not be by way of rehearing. Section 92 was later renumbered as s 118, and when s 118 was amended in 1997,20 the words “sitting without a jury” in s 118(3) were removed. So, since this amendment, an appeal from any decision of the District Court in its original jurisdiction21 is by way of rehearing. Accordingly, the inclusion of the words “or jury” at the end of s 119 appear now to be otiose.
Turning then to the meaning to be given to the words “where an appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge…” in s 119(1).
This was addressed by the Court of Appeal in Jones v West-Star Motors Pty Ltd [1995] QCA 498; [1995] ATPR 41-447 (by reference to the predecessor to s 119(1), s 93(1) of the District Courts Act 1967). Jones was an appeal from a decision of the District Court, given on an appeal from the Magistrates Court. The appeal was therefore not by way of rehearing (cf s 92(3)), and the limitation on the power of the Court to draw inferences in s 93(1) (equivalent to s 119(1)) applied.
In relation to that provision, McPherson JA said:
“The limits of the power to draw inferences ‘not inconsistent with’ findings made by the judge below were defined by Williams ACJ in Smith v McKeough (1953) 89 CLR 520, 526-527, referring with approval to what was said by Starke J in Baird v Magripilis (1925) 37 CLR 321, 334:
‘the court clearly has jurisdiction to set aside the verdict of a jury which is unreasonable or perverse, and if a verdict is set aside and no longer exists, then it seems to me that the authority to draw inferences of fact under the Rules may be exercised … But that authority will only be exerted where the evidence is such that only one possible verdict could reasonably be given on the evidence: it is a strong power and must be exercised with considerable caution.’
The effect is to take matters back to the position as it used to be generally in the case of appeals under The District Courts Act of 1958 from a judge sitting alone, and which, incidentally, continues to prevail in the case of an appeal in an action not falling within s 92(3)(a) of the District Courts Act 1967.22 Under that regime, the function of this Court on appeal is, as was explained by Gibbs J in Clark v Trevilyan [1963] QWN 11, limited to seeing, first, whether there is any evidence in support of the findings; and, secondly, whether the finding can be set aside as being against the weight of evidence and unreasonable within the meaning of the authorities discussed by Dixon J in Hocking v Bell (1945) 71 CLR 430, at 497-499. See also Aspasia Pty Ltd v Huntress [1985] 2 Qd R 241, 242, which was an instance specifically affected by s 92(3)(a) of the Act of 1967.
In the present case, therefore, we can draw inferences inconsistent with the findings of the District Court judge only if there was no evidence on which he could make the finding that the vehicle was merchantable, or if such a finding was unreasonable. As to that, it is enough to say that there plainly was and is evidence capable of supporting such a finding, and the finding as such is not unreasonable. …”
In the same case, Mackenzie J articulated the test as follows:
“On an appeal under s 92 the test is whether there was evidence upon which the judge below might have reached his conclusions. The findings can be set aside only if there is no evidence, or if the findings are such that no reasonable tribunal of fact might have made them.”
There are, then, two aspects to the jurisdiction of this Court where findings of fact are challenged: first, whether there is any evidence on which the finding may be made (a question of law) and, second, whether the finding is unreasonable (a question of fact).23
In Clark v Trevilyan [1963] QWN 11 Gibbs J (with whom Mansfield CJ and Philp J agreed) adopted the earlier decision of Griffiths CJ, on behalf of the Full Court, in Pilmer v No 1 South Oriental and Glanmire Gold Mining Company Ltd [1900] 10 QLJ 87 at 95, where his Honour said:
“It makes no difference, so far as regards the functions of this Court on the hearing of appeals from District Courts, whether the case was tried with or without a jury. The findings of a District Court judge stand on the same footing as if they were those of a jury, and the court will review the findings of a judge on the same principles as those applied when it is asked to review the findings of a jury – that is, it will disregard them only if it is shown that they are manifestly wrong. Section 147 may possibly somewhat enlarge their powers in that respect…24 [But] There is great distinction between an appeal of this sort and an appeal from a judge of the Supreme Court sitting alone, which is in the nature of a re-hearing, so that in that case fresh evidence may be taken by the Court of Appeal.”
Gibbs J found that this decision applied to the relevant appeal provisions then in force,25 and went on to say:
“If we are bound, as I think we are, to treat the findings of a District Court judge as though they were those of a jury, we have no right to substitute our own findings for those of the District Court judge. Our function is limited to see first whether there is any evidence in support of the findings, and secondly whether the finding can be set aside as being against the weight of evidence and unreasonable, within the meaning of the authorities discussed by Dixon J … in Hocking v Bell ([1945] 71 CLR 430 at pp 497-499). When these tests are applied, the finding that is now attacked cannot be disturbed. Slight as it was, there was some evidence to support the judge’s finding… There is no such preponderance of evidence against this finding as to make it unreasonable.”26
Leave to appeal
At the time Jones was decided, if leave to appeal was required, s 92(2A) provided that “such leave shall not be granted unless some important question of law or justice is involved”.27 When s 92 was renumbered as s 118, that provision was to be found in s 118(3). Section 118 was amended in 1997,28 to remove that limitation on the discretion. In ACI Operations Pty Ltd v Bawden [2002] QCA 286 McPherson JA said the consequence was to confer a general discretion on this Court to grant or refuse leave to appeal, which is exercisable according to the nature of the case, although his Honour considered that “the mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the granting of leave to appeal”. McPherson JA also observed:
“It [the amendment] also, to my mind, does not mean that the former criterion in s 118 of an important point of law or question of general or public importance is entirely irrelevant to applications of this kind. It may be expressed by saying that the existence of such a consideration remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal.”29
In so far as leave to appeal is concerned, the statement of principle that is frequently applied is that of Keane JA (as his Honour then was) in Pickering v McArthur [2005] QCA 294 at [3], that:
“Leave [under s 118(3)] will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and30 there is a reasonable argument that there is an error to be corrected.”31
That statement, made with the agreement of McMurdo P and Dutney J, has been consistently applied by this Court to applications for leave to appeal under s 118(3), including from appellate decisions of the District Court.
Pickering v McArthur was an application for leave to appeal from an interlocutory decision (refusing to strike out a statement of claim). The statement at [3] reflects the well-established principle, on applications for leave to appeal interlocutory decisions, from Décor Corporation Pty Ltd v Dart Industries Inc.32 One of the cases cited by Keane JA at [3] of Pickering, Rigney v Littlehales & Ors [2005] QCA 252, was likewise an application for leave to appeal from an interlocutory decision, in which this statement of principle appears at [15].33
Nevertheless, the statement of principle from Pickering v McArthur is consistent with the previous authorities, referred to above, in relation to ss 118 and 119 (and their predecessors). In particular, this might be said by reference to McPherson JA’s observation, in ACI Operations, that the mere fact that error may be detected in the judgment below is not ordinarily sufficient to justify the granting of leave to appeal – in Keane JA’s words, it is necessary to show a reasonable argument that there is error to be corrected and that it is necessary to correct a substantial injustice to the applicant.
There are sound policy reasons for such an approach, which were reinforced by Keane JA in Pearson v Thuringowa City Council [2006] 1 Qd R 416 at [14]:
“The restriction imposed by s 118(3) of the District Court of Queensland Act 1967 on appeals to this Court serves the purpose of ensuring that this Court’s time is not taken up with appeals where no identifiable error or injustice can be articulated by those litigants whose arguments have already been fully considered at two judicial hearings.”34
Is an appeal, subject to leave, limited to errors of law?
The genesis of the further limitation, that an appeal from an appellate decision of the District Court is limited to an error of law, is not easy to identify. It may be the decision of Williams JA in Zinace Pty Ltd v Tomlin [2003] QCA 102 (cited by Keane JA in Pearson v Thuringowa City Council), in which his Honour said that, under s 118(3), “ordinarily an applicant would be able to point to some important question of law or some question of general importance in order to substantiate the application” for leave to appeal. But this comment needs to be considered in the context of the legislative history of the provisions, discussed above, in particular the requirement, prior to 1997, for a grant of leave, to show some important question of law or justice was involved. In the words of McPherson JA in ACI Operations, following the removal of that limitation on the discretion, such a consideration would remain a sufficient, but not a necessary prerequisite to the grant of leave to appeal.
Nevertheless, in Tsigounis v Medical Board of Queensland [2006] QCA 295 Keane JA said at [14]-[15]:
“[14] An appeal to this Court from the decision of the District Court is available only by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld). Such an appeal to this Court is an appeal from the District Court in its appellate jurisdiction. As a result, that appeal is an appeal in the strict sense, that is to say, the decision of the District Court is not subject to an appeal by way of rehearing.35 Accordingly, it is ‘not this Court’s task to decide where the truth lay as between the competing versions … given by the parties’.36 It is not open to this Court to substitute its view of the facts of the case for that of the District Court judge. The circumstance that the appeal to this Court is confined to questions of law serves to constrain the grant of leave to appeal in a way which is particularly significant for the present case.
[15] Leave to appeal to this Court from the District Court will usually be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) only where the decision below has occasioned a substantial injustice to the applicant for leave, and where there is a reasonable argument in support of the applicant's claim to relief.37 Because of the limited function of this Court on appeal in the strict sense applicable here, the latter requirement means that the applicant must be able to identify an arguable error of law in the decision below which, if corrected, would result in the correction of the substantial injustice.”38
Subject to what is said below about the underlined parts, this passage is an elegant summary of the relevant principles which have developed in relation to ss 118 and 119. With great respect, I am unable to see that the limitation, of any appeal from an appellate decision of the District Court, to errors of law only, is supported either by the words of the statute conferring the potential appeal right, should leave be granted, or in the authorities which have been decided subsequently, as the legislation has evolved, or from the nature of any appeal as a strict appeal. The scope for intervention by this Court on the basis of factual error, or factual inference error, is very narrow. But it is there, nonetheless.
The more recent decision of Gobus v Queensland Police Service [2013] QCA 172 at [3]-[5] has been repeatedly cited, as authority for the proposition, first articulated in Tsigounis, that an appeal to this Court from a decision of the District Court in its appellate jurisdiction is limited to errors of law.39 On closer analysis, Gobus is not authority for that proposition. Relevantly, at [3]-[5] Fraser JA said:
“Under the District Court of Queensland Act 1967 an appeal to this court from the District Court in its original jurisdiction under s 118(3) is an appeal by way of rehearing: s 118(8). In this case, however, the District Court was exercising appellate jurisdiction. In relation to appeals under s 118, s 119(1) provides that ‘… the Court of Appeal shall have power to draw inferences of fact from facts found by the judge or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.’
That proviso does not preclude this court from reconsidering afresh an appeal to the District Court in a case in which the District Court judge failed to conduct the re-hearing of the appeal from the magistrate required by s 222 of the Justices Act 1886 (see Rowe v Kemper [2009] 1 Qd R 247 at [5]), but that is not this case. As North J’s reasons demonstrate, the judge conducted a thorough re-hearing, substantially adopted the magistrate’s findings of fact, and upheld the ultimate conclusion of guilt beyond reasonable doubt. The real substance of the applicant’s arguments was that the judge erred in fact by endorsing the magistrate’s findings of fact. However, as also appears from North J’s reasons, those findings were at least open on the evidence. Accordingly, the judge did not err in law.
On the authority of Tsigounis v Medical Board of Queensland [2006] QCA 295 at [14]–[15], that conclusion would require refusal of the application. It was there held that appeals to this court from decisions of the District Court in its appellate jurisdiction are limited to errors of law for the reason that they are ‘strict appeals’ rather than appeals by way of rehearing; see also Commissioner of Police v Stehbens [2013] QCA 81. In R v Ruthven [2013] QCA 142 at pp 4–5, this reasoning was adverted to but not applied. It is also not necessary to apply it in this case because this application must be refused on the more straightforward ground that the express terms of the proviso in s 119(1) preclude this court from drawing the inferences necessary for the applicant to succeed in his proposed appeal.”
In White v Commissioner of Police [2014] QCA 121 Gobus was cited by Morrison JA at [8] (Muir JA and Atkinson J agreeing) as authority for the proposition that an appeal to this Court from a decision of the District Court in its appellate jurisdiction is “a strict appeal where error of law must be demonstrated”.
In Burke v Commissioner of Police [2016] QCA 184, however, McMurdo P questioned whether that is correct (at [1]-[6]), noting that “there is nothing in the specific terms of the relevant provisions of the District Court Act to constrain appeals under s 118(3) in this way”. Her Honour nevertheless affirmed that leave to appeal will not be given lightly to appeal a decision of the District Court made in its appellate jurisdiction, where the applicant has already had the benefit of a hearing and a subsequent appeal. The other members of the Court on this occasion were Morrison JA, who applied his Honour’s decision in White; and Atkinson J, who declined to express an opinion on the issue, as it was not necessary to decide the application for leave.
Returning to this issue in Conquest v Bundaberg Regional Council [2016] QCA 203 Fraser JA (with the agreement of McMurdo JA and Daubney J), after referring to the relevant parts of ss 118 and 119, said at [33]-[34]:
“There are a number of difficulties in construing s 119(1). In Gobus v Queensland Police Service I adverted to one such difficulty, concerning authority for the view that appeals to this Court from decisions of the District Court in its appellate jurisdiction are limited to errors of law for the reason that they are ‘strict appeals’ rather than appeals by way of rehearing. I did not decide that point. The application in that case failed in any event because the express terms of the proviso in s 119(1) precluded the Court from drawing the inferences which were required if that applicant were to succeed in his proposed appeal. In Burke v Commissioner of Police Morrison JA applied White v Commissioner of Police in holding that in such an appeal it is necessary for the appellant to identify an error of law in the decision of the District Court, but the President and Atkinson J left that question open.
Another difficulty in construing s 119(1) concerns the meaning of the expression ‘the findings of the judge or jury’. For example, does that expression encompass findings of fact made for the first time on appeal in the District Court? It is not necessary here to resolve these questions. On any view, s 119(1) of the District Court of Queensland Act 1967 was designed to impose a limitation upon the scope of appeals from decisions of the District Court in its appellate jurisdiction. At least in some cases, that limitation might be circumvented if the Court grants leave to appeal upon a factual question where there is no relevant factual finding as a result of the applicant not putting the relevant matter in issue at first instance and/or on appeal to the District Court…”40
In Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 McMurdo JA referred to the differing views expressed in this Court as to the nature of any appeal should leave be granted, and observed that an appeal to this Court from the District Court in its appellate jurisdiction, being an appeal in the strict sense, does not mean that such appeals are limited to questions of law, but rather requires the court to consider whether error in considering the original evidence has been shown on the part of the court below (at [43]-[49]). The other members of the Court, Gotterson JA (at [1]) and Daubney J (at [53]) declined to express a view about this, on the basis that it was unnecessary to determine the application in that case since, on any view, the error identified was an error or law, and there not having been argument on the issue.
Most recently, in Kriston v Commissioner of Police [2017] QCA 230, although Sofronoff P said that on an application for leave to appeal “the applicant must be able to identify an arguable error of law in the decision from which an appeal is sought”, Morrison JA observed that “there is still a debate as to whether [an appeal to this Court from the District Court in its appellate jurisdiction], being a strict appeal, is limited to questions of law, or might also include questions of fact”, but found it unnecessary to resolve that issue because, for reasons given by Sofronoff P, there was no definable ground on which leave should be given.
Summary of the relevant principles
It is apparent, from a survey of recent authorities, that there is a need for clarity in relation to the relevant principles.
By way of summary, the following are the principles that apply, to appeals to this Court from judgments of a District Court in its appellate jurisdiction:the nature of the appeal is governed by ss 118 and 119 of the District Court of Queensland Act 1967;an appeal from a judgment of the District Court in its appellate jurisdiction lies only with the leave of this Court: s 118(3);this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case,41 but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings;42the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal43 – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected;44if leave is granted, the appeal is an appeal in the strict sense (cf s 118(8)), in respect of which the Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court. This Court is not engaged in a rehearing; as such, it is not this Court’s task to decide where the truth lay as between the competing versions of the witnesses;45 and it is not for this Court to substitute its own findings for those of the District Court judge;46a factual finding of a District Court judge, on an appeal to that court (which may be different from, or additional to those made by the Magistrate at first instance, or which may confirm the findings of the Magistrate at first instance, since the appeal to the District Court is by way of rehearing) may only be reviewed on an appeal to this Court if there is no evidence to support it, or it is shown to be unreasonable, in the sense discussed in Hocking v Bell in relation to findings of fact by a jury;47on the hearing of an appeal, this Court has power to draw inferences of fact from facts found by the District Court judge, or from admitted facts or facts not disputed, but, except where there is no evidence on which the judge below might have reached his or her conclusions, or the conclusions are unreasonable, any such inferences shall not be inconsistent with the findings of the District Court judge (s 119(1)); andthe appeal to this Court is not limited to errors of law.
Should leave to appeal be granted in this case?
The proposed grounds of appeal
Proposed ground 1 – error in characterising the appeal as a challenge against factual findings only
The first of the proposed grounds is that the District Court judge “erred in characterising the appeal as a challenge against factual findings only, there also being a complaint (paragraph 21 of the Appellant’s Outline) that the learned Magistrate erred by applying the wrong standard of proof”.
The District Court judge set out the grounds of appeal at [2] of the decision.50 By reference to those grounds of appeal, his Honour said, at [8] of the decision, “[t]hey chiefly or solely concern factual findings”. That was an accurate statement, made by reference to the grounds of appeal.
To the extent that there was also, in the appeal to the District Court, a complaint that the Magistrate had erred by applying the wrong standard of proof, it was somewhat obscure, if what is relied on is paragraph 21 of the applicant’s outline in the District Court. Paragraph 20 of the outline refers to one part of the Magistrate’s reasons, in which her Honour made reference to the CCTV footage, and her findings in relation to the question whether the applicant deliberately turned his head and blew into the police officer’s face, concluding that “in any case” she preferred the evidence of the police officers about what occurred over that of the defendant. At paragraph 21 the applicant submitted:
“It is not a matter of preferring the prosecution evidence but rather of whether or not the prosecution evidence was so strong in that regard as to leave the Magistrate with no reasonable doubt.”51
It is apparent, on a consideration of the whole of the Magistrate’s reasons, that that is precisely the conclusion her Honour reached – that is, that on a consideration of the prosecution evidence, having found that she did not accept the applicant’s evidence as truthful, she was satisfied beyond reasonable doubt that he deliberately and forcefully ejected blood and saliva from his mouth onto the police officer’s face.52
There was no error in the District Court judge characterising the grounds of appeal as chiefly or solely concerning factual findings. They were. A contention that the Magistrate applied the wrong standard of proof was not a ground of appeal; although was the subject of a passing comment in the written outline, and some discussion in the course of oral submissions.53
Moreover, there is no reasonable basis to conclude that an error of this kind affected the Magistrate’s decision in any event, as her Honour expressly stated, having rejected the applicant’s evidence as untruthful, that she accepted the evidence of the police officers and was “satisfied beyond reasonable doubt that the defendant deliberately and forcefully ejected blood and saliva from his mouth” onto the complainant officer.54
Proposed ground 2 – failure to conduct a rehearing
A failure on the part of a District Court judge, on an appeal under s 222 of the Justices Act, to conduct a rehearing is an error of law, which would warrant the intervention of this Court to correct an injustice.55
However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.56 It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.57 Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.58
It is clear, particularly from [14]-[18] of the decision below,59 that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.
Proposed ground 3 – error in finding the Magistrate had considered and rejected the defence of accident
On the appeal to the District Court the applicant contended that the Magistrate “failed to consider and in the alternative erred in rejecting the defence of accident which was raised in the material and by the appellant”.60
The District Court judge dealt with both aspects of this contention. At [13] of the decision below, his Honour, by reference to the part of the Magistrate’s reasons in which she expressly articulated the issue as being whether the blood came to be on the police officer’s face as a result of a deliberate act on the part of the defendant, quite correctly found that “there is no demonstrated error of failure to consider a defence”.61
Although s 23 of the Criminal Code was not expressly adverted to, the essence of it – which required the Magistrate to be satisfied the act, by which the applicant’s blood came to be on the police officer’s face, was a deliberate one on the part of the applicant, rather than an involuntary one – plainly was.
The District Court judge then addressed the contention of “error as to fact finding on this issue”, commencing at [14], where his Honour said:
“Her Honour referred in this context specifically to firstly, Shannon’s evidence of a deliberate turning of the head and blowing fluids in her face; and secondly, Boddy’s evidence that, although he was not in a position to directly see the appellant’s actions, he was standing immediately behind the appellant and could hear the appellant blowing out of his mouth at the time when the blood was projected. Her Honour further refers to this at p 6, L 11 of the decision where she indicates the CCTV footage shows Boddy in that position, such that he was able to hear such a sound. I have viewed the footage a number of times and, although I was not able to detect what Boddy says he could see about the motioning of the lips, I share the Magistrate’s observation that the footage does indicate Boddy being in the immediate vicinity at the relevant time. In my view the evidence of the prosecution, particularly that of Boddy, if accepted, negates an accidental spitting and there is no basis upon which I would overturn the Magistrate’s factual findings on this issue.”
On his application for leave to appeal, the applicant submits that “it was not necessary for the Applicant to show that the magistrate was in error. The learned Judge on appeal should have independently considered the evidence as a whole and come to his own conclusion about whether the defence of accident had been excluded to the requisite standard”.62
The first part of this submission is incorrect. Even where an appeal is by way of rehearing, it is necessary to find legal, factual or discretionary error, before an appeal may be allowed. As to the second part of the submission, it is apparent, from the paragraph of the decision just quoted, that the District Court judge did independently consider the evidence, and come to his own conclusion.
I would add that the contention, in paragraph 33 of the applicant’s outline on the application for leave to appeal to this Court, is unfounded. In that paragraph, it is submitted that the Magistrate “does not give any real consideration to the defence of accident”; that her Honour referred to the issue, “but she really did no more than that”; and that her Honour found that the applicant deliberately blew in the police officer’s face “but that finding was made in the absence of any consideration of the fact that it might have been an accident, and who had the burden of proof on that issue”. Those assertions are at odds with the Magistrate’s detailed reasons at AB 119-122, in which she addresses the evidence of each of officer Shannon (the officer who was spat on), officer Boddy (who was in close proximity) and the applicant; makes findings about that evidence, including as to credibility (finding the applicant was evasive and not truthful), culminating in the conclusion that she accepted the prosecution’s evidence that the applicant turned his head and deliberately blew in [Shannon’s] face such that blood and saliva from his mouth was sprayed over her.
Proposed ground 4 – error in casting onus on applicant to lead evidence
One of the submissions made by the applicant on the appeal to the District Court, in support of the contended error on the part of the Magistrate in finding that the applicant blew/spat at the police officer, was that a photograph tendered of the police officer showed very few, fine droplets of blood, which was inconsistent with a deliberate spitting.
In relation to this submission, the District Court judge observed, at [15] of the decision, that “this proposition does not necessarily follow. There was no expert or other evidence about different results from deliberate or accidental spitting.”63
On the application for leave to appeal to this Court, it is submitted that, by that sentence, the District Court judge “seemingly … cast the onus of proof on that issue upon the Applicant”.
There is no merit to that contention. His Honour was merely making two observations, in relation to a submission made, it seems for the first time, on the appeal to the District Court: first, that the proposition that a few, fine droplets of blood was inconsistent with deliberate spitting, does not necessarily follow; and second that there was no evidence (expert or otherwise) about that. That does not mean his Honour was suggesting the applicant had any onus upon him to prove such a proposition. It is simply an observation that he was not prepared to take judicial notice of the asserted proposition, and an accurate statement of the absence of evidence about it.
Proposed grounds 5 and 6 – challenges to factual findings
Proposed grounds 5 and 6 seek to challenge the factual findings, of both the District Court judge and the Magistrate, that the applicant turned his head immediately preceding the allegation of blowing/spitting on the officer and that he blew/spat at the officer.64 As to the latter, it is apparent from [26] of the applicant’s submissions on the application for leave to appeal, that the finding challenged is that the accompanying officer Boddy, who was standing in close proximity to the applicant, but behind him, could have heard him blowing out of his mouth at the time blood was projected.
An appeal from such findings to this Court could only be on the basis that there was no evidence for such findings; or that the findings were unreasonable, in the sense explained in the cases discussed above – that is, findings which no reasonable tribunal of fact might have made.
Neither of those bases can be established in this case, as is made clear in [18] (in relation to turning of the head, including by reference to the applicant’s evidence)65 and [16] (in relation to the ability of Boddy to hear the applicant blow at the relevant time)66 of the decision below.
Proposed ground 7 – error in finding the conviction was not unsafe and unsatisfactory
The reference, on an appeal, to a conviction being “unsafe and unsatisfactory”, although not having a statutory source, has been treated as equivalent to the statutory ground in s 668E(1) of the Criminal Code, that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence.67
Section 668E(1) of the Criminal Code does not apply to appeals from the Magistrates Court to the District Court; nor from the District Court, in its appellate jurisdiction, to this Court.
Nevertheless, as the analysis above shows, on an appeal to this Court from the District Court in its appellate jurisdiction, a factual finding may be the subject of challenge on the basis that there is no evidence for it, or it is unreasonable in the sense in which that concept applies to appeals from jury verdicts. However, if that is the ground relied upon, that ought to be clearly articulated, rather than relying upon the unparticularised formula that the decision is “unsafe and unsatisfactory”.
In the decision below, the District Court judge correctly noted that no separate submissions were made in support of this ground; and his Honour reasonably presumed that it rested on the other, specific submissions made as to alleged problems with the evidence and the fact finding process.68
In the applicant’s submissions on the application for leave to appeal, this proposed ground is linked to the proposed contention that the District Court judge erred by failing to conduct a rehearing, it being submitted that if his Honour had “conducted his own assessment of the evidence as a whole it is likely that he would have been faced with some doubt”.69
It follows from what has been said about proposed ground 2 above, that there is no merit in this proposed ground either.
Leave to appeal ought to be refused
For the reasons set out above, none of the proposed grounds of appeal have merit. The applicant has had the benefit of a trial in the Magistrates Court, a rehearing on appeal to the District Court, and there has not been demonstrated any error, requiring the intervention of this Court, to avoid a substantial injustice.
Accordingly, I would refuse to grant leave to appeal.
It appears from the submissions on his behalf that the applicant has served seven days of the sentence imposed on him by the Magistrate, having been granted bail pending both the appeal to the District Court, and the application for leave to appeal to this Court. There has been no appeal from that sentence. A warrant ought therefore issue for the arrest of the applicant, to lie in the registry for seven days.
Respondent’s Outline at [11]. ↩
Applicant’s Outline at [7]. ↩
AB 6. ↩
Together with charges of obstructing police, and committing public nuisance, on the same date. It is not necessary to say any more about these charges. The applicant was convicted of the former, but there was no appeal to the District Court in relation to that; and the latter was dismissed for lack of evidence. ↩
AB 9-104. ↩
See also the summary of “background and factual matrix” in [3]-[4] of the decision below, at AB 174-175. ↩
AB 116-124. ↩
AB 122. ↩
AB 187. ↩
AB 178. ↩
Fox v Percy (2003) 214 CLR 118 at [20]. ↩
Under s 118A leave of the District Court is required to appeal from a judgment or order given or made by consent. Under s 118B leave of the District Court is required to appeal in relation to costs only. ↩
“Judge” is defined in s 3 of the Act to mean a judge of the District Court of Queensland.
McDonald
Queensland Police Service [2017] QCA 255
(2013) 88 ALJR 101
(2013) 303 ALR 387
(1991) 33 FCR 397
(2000) 203 CLR 1
(2003) 214 CLR 118
(1945) 71 CLR 430
(2003) 77 ALJR 1934
(2014) 67 MVR 543
(2011) 244 CLR 352
(1989) 167 CLR 259
(2010) 56 MVR 266
(2011) 243 CLR 400
(1979) 142 CLR 531
(1953) 89 CLR 520
(1925) 37 CLR 321
Underlining added. ↩
Cf s 118(8); see Tsigounis v Medical Board of Queensland [2006] QCA 295 at [14]; Rowe v Kemper [2009] 1 Qd R 247 at [3]; Osgood v Queensland Police Service [2010] QCA 242 at [19]; Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 at [45]-[44]. ↩
Mickelberg v The Queen (1989) 167 CLR 259 at 267 and 298. ↩
See also Eastman v The Queen (2000) 203 CLR 1 at [17]-[18], [104]-[105], [290]. ↩
See, for example, Lithgow City Council v Jackson (2011) 244 CLR 352 at [102]-[104] per Crennan J; Warren v Coombes (1979) 142 CLR 531 at 553. ↩
Prior to this, the relevant provision was s 146 of the District Courts Act 1958, which only contained the first part of s 119(1), as to the drawing of inferences. At this time, no appeal from the District Court to the Supreme Court was by way of rehearing (cf s 144 of the 1958 Act and see Michajlyszyn v Wilson [1962] QWN 34). ↩
Courts Reform Amendment Act 1997 (Act No. 38 of 1997). ↩
Keeping in mind the overarching exclusion in s 118(1) of appeals from judgments of a District Court exercising criminal jurisdiction, other than in appeals under s 222 of the Justices Act. ↩
Section 92(3)(a) provided that “An appeal to the Court of Appeal from a judgment of a District Court in its original jurisdiction sitting without a jury shall be by way of rehearing where the sum sued for exceeds $20,000”. A case not falling within s 92(3)(a) would therefore be an appeal not by way of rehearing (as in this case). ↩
Hocking v Bell (1945) 71 CLR 430 at 497-498 per Dixon J. ↩
Section 147 of the District Courts Act 1891 was in similar terms to s 119 of the current Act, in terms of conferring power to draw inferences of fact from facts found by the Judge or jury, or from admitted facts or facts not disputed; but did not include the proviso which now appears in s 119(1), in the case of appeals not by way of rehearing (because there was no provision, in the 1891 Act, for any appeal from the District Court to be by way of rehearing). ↩
Sections 143-148 of the District Courts Act 1958. ↩
Relevantly, at the time of this decision, s 143 of the District Courts Act 1958 conferred a right of appeal from a final judgment of the District Court, whether in its original or appellate jurisdiction, in certain cases (involving more than six hundred pounds), and otherwise, required leave to appeal. There was no equivalent of s 118(8) (appeals from judgments in the original jurisdiction to be by way of rehearing). Therefore all appeals, whether from a judgment in the original jurisdiction or the appellate jurisdiction, were strict appeals. Section 146 of the 1958 Act was in similar terms to s 119, save that there was no equivalent of the proviso to s 119(1), in the case of appeals not by way of rehearing. ↩
See reprint no. 1 of the District Courts Act 1967. ↩
Courts Reform Amendment Act 1997 (Act No. 38 of 1997), s 47. ↩
Referred to with approval by White JA in Osgood v Queensland Police Service [2010] QCA 242 at [9] and [10] (Holmes JA (as her Honour then was) and Muir JA agreeing, at [1] and [2]). ↩
As Muir JA noted in Johnson v Queensland Police Service [2014] QCA 195; (2014) 67 MVR 543 at [29], in Shambayati v Commissioner of Police [2013] QCA 57 the disjunctive “or” was mistakenly used when stating the principle, citing Pickering v McArthur. The error was repeated in Commissioner of Police v Al Shakarji [2013] QCA 319, in which both Shambayati and Pickering were cited. ↩
Footnotes omitted. ↩
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. ↩
By reference to Westpac Banking Corporation v Klef Pty Ltd [1998] QCA 311, which in turn refers to Décor (at [11]). ↩
See also Gobus v Queensland Police Service [2013] QCA 172 at [6]-[7] per North J, Holmes JA (as her Honour then was) and Fraser JA agreeing). ↩
Referring, by comparison, to s 118(9) (now s 118(8)) of the District Court of Queensland Act 1967, which provides that an appeal from the District Court in its original jurisdiction is by way of rehearing. ↩
Referring to Fox v Percy (2003) 214 CLR 118 at 129 [32] and Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 at 1942-1943 [49]-[52]. ↩
Referring to Pickering v McArthur [2005] QCA 294 at [3]. ↩
Underlining added. ↩
An example is R v Al Skakarji [2016] QCA 29 at p 2, cited in the Respondent’s Outline at [10]. ↩
Footnotes omitted. ↩
ACI Operations Pty Ltd v Bawden [2002] QCA 286 per McPherson JA. ↩
Pearson v Thuringowa City Council [2006] 1 Qd R 416 at [14] per Keane JA; Burke v Commissioner of Police [2016] QCA 184 at [5] per McMurdo P. ↩
Ibid. ↩
Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. ↩
Fox v Percy (2003) 214 CLR 118 at [32]. ↩
Clark v Trevilyan [1963] QWN 11; Tsigounis v Medical Board of Queensland [2006] QCA 295 at [14] per Keane JA; Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 at [43]-[44], [48]-[49]. ↩
Jones v West-Star Motors Pty Ltd [1995] ATPR 41-447. ↩
Jones v West-Star Motors Pty Ltd [1995] ATPR 41-447. ↩
See Burke v Commissioner of Police [2016] QCA 184 at [2] and [6] per McMurdo P; see also Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313 at [43], [45], [47]-[49] per McMurdo JA. ↩
AB 174; see also paragraph [7] above. ↩
AB 304. ↩
AB 122. ↩
AB 141, 160-162. ↩
AB 122. ↩
Rowe v Kemper [2009] 1 Qd R 247 at [5]. ↩
Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3]. ↩
Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3]; White v Commissioner of Police [2014] QCA 121 at [6]. ↩
Fox v Percy (2003) 214 CLR 118 at [27]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8]. ↩
AB 177-178. ↩
AB 187. ↩
AB 177. ↩
Paragraph [32] of the applicant’s outline. ↩
AB 177. ↩
See also [26] of the applicant’s submissions on the application for leave to appeal, identifying the two findings of fact the applicant submits “were not reasonably open to [the Magistrate] in the prevailing circumstances”. ↩
AB 178. ↩
AB 177. ↩
SKA v The Queen (2011) 243 CLR 400 at [12], [37] and [80]; BCM v R (2013) 303 ALR 387 at [27]. ↩
AB 178. ↩
Applicant’s outline at [40]. ↩