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DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 8 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 6 April 2009

JUDGES: Keane and Muir JJA and Dutney J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal refusedApplication to adduce further evidence dismissedApplicant to pay the respondent's costs of the application to be assessed on the indemnity basis

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against decision of District Court judge – where applicant failed to show how the reasoning of primary judge was wrong – whether leave to appeal should be granted / District Court of Queensland Act 1967 (Qld), s 118 / Ferrus v Queensland Police Service [2006] QCA 57, cited / Saunders v Bowman [2008] QCA 112, cited / Smith v Woodward [2007] QDC 324, affirmed

COUNSEL: The applicant appeared on his own behalf / M J Rinaudo Lewis for the respondent

SOLICITORS: The applicant appeared on his own behalf / Aboriginal and Torres Strait Islander Legal Service for the respondent

1. KEANE JA: On 12 January 2006 orders were made against Mr Smith, the applicant in this Court, by the Magistrate at Maryborough. The orders were made under the Peace and Good Behaviour Act 1982 (Qld) ("the Act") and required that Mr Smith keep the peace and be of good behaviour towards the respondent, Mr Woodward, for a period of two years and that Mr Smith have no contact with Mr Woodward. Mr Smith was ordered to pay Mr Woodward's costs.

2. Mr Smith appealed to the District Court. On 7 December 2007 the appeal to the District Court was dismissed with costs. On 7 January 2008 Mr Smith filed an application in which he seeks leave to appeal to this Court from the decision of the District Court.

3. Mr Smith represented himself below and in this Court.

4. On 31 July 2008 both parties were advised that the matter was listed for hearing on 3 September 2008. Mr Smith was unable to attend the hearing on that date because of medical reasons. The matter was adjourned to 6 October 2008.

5. On 6 October 2008 the hearing of the matter was adjourned again because Mr Smith was again indisposed for medical reasons.

6. Mr Smith subsequently filed an application to adduce further evidence on his application for leave to appeal.

7. This case does not warrant the grant of leave to appeal. The prospect of further evidence, to the extent that it is evidence not already considered by the courts below, does not alter my view of the matter.

The case against Mr Smith

8. The learned judge who considered Mr Smith's appeal in the District Court summarised the issue which led to the order of which Mr Smith complains:

"The proceedings concern events which occurred at a house in Tiaro on 30 June 2005. The transcript of the proceedings before the Magistrate and parts of the appellant’s material are in accord about some of those events, which are in relatively small compass. It seems Mr Smith and the complainant’s mother had been drinking together. The complainant came to his mother’s home and some kind of altercation between the appellant and the respondent ensued, in which both were injured. Each blamed the other for the occurrence of the altercation. The investigating police officer apparently preferred the version of the respondent Mr Woodward, as did the learned Magistrate."¹

9. Mr Woodward's case for a peace and good behaviour order under the Act was based on his claim that he was in fear of Mr Smith. Mr Woodward gave evidence that Mr Smith had assaulted him on 30 June 2005 and made threats against Mr Woodward's safety. Mr Woodward was supported by evidence of other witnesses.

10. Mr Smith did not give evidence to support his assertion that Mr Woodward attacked him. The Magistrate who heard Mr Woodward's application asked Mr Smith whether he wished to give evidence in response to the evidence of the witnesses in support of the application.

11. Mr Woodward and the witnesses who gave evidence in support of Mr Woodward's case were found by the Magistrate to be honest and reliable. Their evidence was uncontradicted; and so it is hardly surprising that the Magistrate concluded that Mr Woodward's case for a peace and good behaviour order against Mr Smith was made out.

The appeal to the District Court

12. On his appeal to the District Court, Mr Smith asserted that the Magistrate erred:

"by failing to consider all the evidence presented or which could have been required to be made available by Ryan the police prosecutor at [the] Hearing. This file in its entirity [sic] would clearly show that Raymond Smith was the victim of the serious assault on 300605. The magistrate also granted costs against the defendant which are unsubstantiated in part or total."

13. At the hearing in the District Court, Mr Smith sought to tender material in addition to that upon which he had relied at the hearing before the Magistrate. The learned judge refused to exercise his discretion to receive this further material. In this regard, his Honour considered that some of the material was available at the time of the original hearing, and that, in any event, none of the new material would have had any material effect on the result. As his Honour said: "There is simply no plausible suggestion from any of the extra material that any error, or miscarriage of justice, occurred."²

Leave to appeal

14. Leave to appeal to this Court from the decision of the District Court is necessary by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld).

15. The basis on which Mr Smith asserted that this Court should grant leave for a further appeal was said in his application to this Court to be: "In the interest of justice." The written ground on which Mr Smith's proposed appeal was originally put is: "That the evidence that has been presented thus far is non-exhaustive due to, inter alia, being under a disability of domiciling in the care and control of the Queensland Corrective Services." In this Court, Mr Smith complained that the Magistrate who presided over the original hearing had refused his application for an adjournment, but a perusal of the record shows that Mr Smith did not ask for the hearing to be adjourned.

16. The requirement of leave to appeal in s 118(3) of the District Court Act is intended to limit the extent to which litigants, who have already received two full hearings within the judicial system, may make further claims on that system.³ In order to warrant a grant of leave to appeal under s 118(3) of the District Court Act, an applicant should at least "come to grips … with the task of showing how" the reasoning of the District Court judge is wrong.⁴

17. It is to be emphasised that trials are not dress rehearsals. An appeal to this Court under s 118(3) of the District Court Act is not available simply to facilitate a retrial of a case upon evidence which could have been adduced at the original trial.

18. This Court will bear in mind the difficulties which confront applicants who, like Mr Smith, do not have the benefit of legal representation; but, in this case, Mr Smith has not identified any specific error in the reasons of the learned District Court judge in his application. That is sufficient to warrant the refusal of Mr Smith's application for leave to appeal. There are other matters which confirm that this is the appropriate course.

19. It is the practice of this Court to grant leave to appeal under s 118(3) of the District Court Act in order to remedy substantial injustices. It is difficult to see that the mere making of an order to keep the peace and be of good behaviour constitutes a form of substantial injustice.

20. And, in any event, in this case, by reason of the effluxion of time since the orders were made by the Magistrate, the order has expired. The only practical effect of a successful challenge now would relate to the matter of costs. A claim to be allowed to continue to dispute the cost of disputing smacks of self-indulgence. Only in the most exceptional of cases would this Court regard a wish to dispute a liability for costs incurred in the pursuit of an earlier appeal as warranting the grant of leave to appeal pursuant to s 118(3) of the District Court Act. This is not a case where the evident merits of the case warrant taking such an exceptional course.

21. Mr Smith is engaged, whether deliberately or not, in an exercise in vexation. This Court should not be astute to promote such a course. In this regard, the learned District Court judge made the following pertinent observation:

"The matter has, however, in the appellant’s mind a much more complex history involving other events, and persons. An apparent consequence is, unfortunately, that much of what he says and writes is extraordinarily long, diffuse and difficult to comprehend, and has the effect of impeding efforts to understand his complaints in this appeal. Paragraph 17 of his further Outline of Argument, delivered to the Court on about 16 November 2007, exemplifies the problem:

Any evidence relating to this matter involving the member of the Queensland Police Service Craig John Ryan, Registered Number 6459, must be brought into question now that he has brought up a matter that was dismissed on 10 November 2004 against the appellant in the Maryborough Magistrates Court. In this matter Craig John Ryan was the prosecutor involved and it was terminated on day three of the committal proceedings after Ryan was unable to proceed with the matter further, seeing that the appellant in this matter was again, the victim outside his own residence in Smith Avenue Tiaro on 18 February 2004. The appellant was confronted with a 15 year next door neighbour whilst returning from checking his steer, which was grazing at the most northern block of land in Smith Avenue Tiaro owned by a local undertaker. Livestock is permitted to perform this task providing no bulls are involved. This date was the close of nomination date for the local council elections for the Tiaro Shire. Both the appellant and … (name deleted) were nominated by residents to run for these local government elections. The next door neighbour of the appellant in this matter had formed an unusual relationship with … (name deleted) considering since moving into Smith Avenue Tiaro, the neighbour had an unusual amount of vehicles that visited the location of his front door. The vehicles and occupants only went … (passage deleted). This occurred between the hours of darkness and such behaviour had never been encountered by the appellant in this matter in the street, who had been in the district for decades even though leaving through work commitments throughout the State of Queensland. This next door neighbour and these unusual occurrences was reported to … (name deleted) by the appellant, a retired police officer himself, that this was happening in this dead end road that had maybe a mere vehicle on the odd occasion during the hours of darkness until the next door neighbours took up residence about the turn of the century. The next door neighbour then set about on a ‘neighbour from hell’ campaign that involved the killing of the appellant’s children’s hens with a firearm and when police attended such a matter he claimed the neighbour did not have a weapon. This was in spite of the fact that the appellant in this matter had witnessed the use of the firearm and the projectile remains being available with the dead poultry for examination, if the police would have been interested. This neighbour continued his business … (passage deleted)… with no interest by the local police officer (name deleted), apart from him calling in from time to time. This neighbour (name deleted) resided next door with his spouse and … (name deleted), who approached the appellant on that evening of 18 February 2004 with a knife drawn threatening the appellant in this matter on the public roadway outside the appellant’s premises that he had built in the town decades before. In this encounter where the appellant was in fear of his life when confronted by the adult in stature, 15 year old, renowned for being a druggie and chromer who had a criminal history involving the same knife pulling incidents in the local district known to the police, called the local police officer after he claimed receiving an injury to his head from the appellant in this matter. (Name deleted) arrived and once again the police were not interested in what the appellant in this matter had to say about the events of the evening. The police officer refused to search for the knife concerned in the area and by this time the 15 year old and father, had concocted a story that the son had been hit over the head with an iron bar, even though the only injury to the 15 year old was little indeed, to what he could have sustained quite legally by any person who he drew the weapon concerned on. Any victim such as the appellant. (Name deleted) arrested the appellant in this matter and was not interested in what he had to say, only the version from his acquaintances. He charged the appellant with assault and whilst at the Watchhouse placed a further charge of assault on the father on the appellant. The appellant was bailed later that evening after having the restriction placed as a bail condition that he was not to walk on the western side of Smith Avenue Tiaro. There were no houses located on the eastern side of Smith Avenue Tiaro. All three residences in Smith Avenue Tiaro are located on the western side overlooking the Mary River with the appellant in this matter and the next door neighbour’s property only having access from the roadway on the western side of Smith Avenue Tiaro. The appellant in this matter then walked the twenty five kilometres from Maryborough to Tiaro overnight as he was bailed at 2300 on the 18th February after having his mobile phone broken whilst in police custody. He had no other property in his possession or money and when he arrived at his residence after daylight on the 19th February 2004, the media interviewed him in relation to this matter and it appeared on the channel nine network that evening. This arrest matter proceeded to a committal hearing where the prosecution would not produce the extensive criminal histories of the complainants involved and this resulted with the termination of the matter against the appellant. This history is not submitted by the appellant to be self serving and has been brought about by the Affidavit of the witness in this matter, Craig John Ryan sworn at Maryborough on 13 January 2006 and attached hereto that clearly demonstrates that Ryan is unable to accept that the previous matter he was involved in had to be terminated as a retired police, who retired in good standing, don’t usually go around being involved in criminal activities and if involved are being subjected to being a victim, caused it seems in both instances and outlined due to their community input or advise which has been evidenced in both the appealed matter and this previous matter that Ryan is unable to let go of the fact that this court case that was so highly reported in the Fraser Coast Chronicle had to be withdrawn. This court case of 2004 was reported after its withdrawal, on the front page of the paper mentioned as 'POLE ATTACK TURNS INTO COURT BULL'. Following on from this court case was the soliciting of a complaint by Ryan on the day of the Peace and Good Behaviour Order application by the respondent in this appealed matter, 12 January 2006, Ryan then furnished an unreliable Objection to Bail, Annexure, in relation to his arrest of the appellant after the Peace and Good Behaviour Matter on the 13th day of January 2006. This objection to bail by Ryan was well known within the police culture as being the payback for him having to lose face over the last court case where he was the prosecutor in 2004. Now we have the situation where all charges by Ryan in 2006 were either thrown out by Magistrate Barrett on 14 December 2006 or the subject of the no true bill on 09 March 2007. It is disgraceful to consider that this police officer Craig John Ryan, barrister, as he has given in evidence would stoop so low within the police service to use his position to falsely arrest the victim after this appealed matter was heard in the Maryborough Magistrates court on 12 January 2006. Considering that this person was the person with possession of the file in relation to Smith’s complaint of grievous bodily harm on the night of 30 June 2005 makes this situation even more despicable. The withholding of evidence in this scenario is not to be tolerated by any Court and was commented on by all legal representatives for the appellant in this matter."⁵

22. Mr Smith's address to this court was of a piece with this incoherence. Mr Smith's unwillingness or inability to pursue his grievances in a coherent way according to law itself affords a further reason to refuse his application for leave to appeal.

Conclusion and orders

23. I consider that the application for leave to appeal should be refused. The application to adduce further evidence should be dismissed.

24. Mr Smith should be ordered to pay the respondent's costs and incidental to the applications.

25. Mr Smith's pursuit of the applications was quite unreasonable. The costs payable by him should be assessed on the indemnity basis.

26. MUIR JA: I agree with the reasons and proposed orders of Keane JA.

27. DUTNEY J: I agree.