Burke v Commissioner of Police [2016] QCA 184

SUPREME COURT OF QUEENSLAND CITATION: Burke v Commissioner of Police [2016] QCA 184 PARTIES: BURKE, Domonic Michael (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: CA No 16 of 2016 DC No 5011 of 2014 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – [2015] QDC 328 DELIVERED ON: 15 July 2016 DELIVERED AT: Brisbane HEARING DATE: 23 May 2016 JUDGES: Margaret McMurdo P and Morrison JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was convicted in the Magistrates Court on three counts: drunk and disorderly in premises to which a permit/licence relates, obstructing a police officer, and serious assault, by spitting – where the applicant appealed the convictions under s 222 of the Justices Act 1886 (Qld) – where the appeal was dismissed by the District Court – where the applicant seeks to challenge the dismissal of his appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where leave will only be granted where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted Criminal Code (Qld), s 340(1)(b), s 340(a)(i) District Court of Queensland Act 1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 222 Liquor Act 1992 (Qld), s 164(1)(a) Police Powers and Responsibilities Act 2000 (Qld), s 790(1) -- 1 of 12 -- 2 Berry v Commissioner of Police [2015] 1 Qd R 388; [2014] QCA 238, cited Burke v Commissioner of Police [2015] QDC 328, approved Commissioner of Police v Al Shakarji [2013] QCA 319, cited Gobus v Queensland Police Service [2013] QCA 172, cited Pickering v McArthur [2005] QCA 294, cited Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited White v Commissioner of Police [2014] QCA 121, cited COUNSEL: The applicant appeared on his own behalf S J Farnden for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] MARGARET McMURDO P: Subject to the following observations, I agree with Morrison JA’s reasons for refusing this application for leave to appeal. [2] There have been many persuasive statements from this Court to the effect that appeals under s 118(3) District Court of Queensland Act 1967 (Qld) are limited to an appeal on an error of law: see, for example, Fraser JA’s observations in Gobus v Queensland Police Service.1 I note, however, 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. Certainly s 119(1) District Court Act allows the Court of Appeal on the hearing of an appeal to draw inferences of fact from facts found by the judge or from admitted facts or facts not disputed, with the proviso that, where the appeal is not by way of rehearing, these inferences must be consistent with the findings of the judge or jury. Section 119(2) which applies to all appeals to this Court from the District Court, also gives the Court of Appeal a wide discretion as to the orders it can make. [3] Section 118, substantially in its present form, was introduced as part of a raft of procedural changes in the Courts Reform Amendment Act 1997 (Qld). The relevant Explanatory Memorandum stated: “A significant part of the Court of Appeal’s criminal case load has consisted of appeals from Magistrates Courts. The offences which are determined summarily by a Magistrate are generally at the less serious end of the scale. It is appropriate that the limited resources of the Court of Appeal are confined to more serious cases, and those involving significant questions of law, and that all appeals from orders of Magistrates Courts exercising criminal jurisdiction should be dealt with in the District Court, with a further right of appeal available with the leave of the Court of Appeal”2 [4] In the second reading speech the Minister relevantly stated: “A significant part of the Court of Appeal’s criminal case load has consisted of appeals from Magistrates Courts. However, the offences 1 [2013] QCA 172 [3] – [5]. 2 Explanatory Memorandum, Courts Reform Amendment Bill 1997 (Qld) 2 – 3. -- 2 of 12 -- 3 which are determined summarily by a magistrate are generally at the less serious end of the scale. It is appropriate that the limited resources of the Court of Appeal are confined to more serious cases, and those involving significant questions of law, and that all appeals from orders of Magistrates Courts in exercising criminal jurisdiction should be dealt with in the District Court, with a further right of appeal available with the leave of the Court of Appeal. This reform will enable appeals relating to indictable and simple offences arising from the same set of facts to be dealt with together.”3 [5] Nothing in that material suggests that the legislature intended appeals under s 118(3) to be limited to questions of law. The specific terms of s 118(3) clearly limit appeals under it by requiring that the Court of Appeal’s leave is needed to appeal. Ordinarily, an applicant will be granted leave to appeal under s 118(3) where an error requiring the correction of a substantial injustice is demonstrated. But leave might also be granted, even absent error, in other instances, for example, a serious case, one of public interest, one involving an important question of law, or, as foreshadowed in the second reading speech, where the case should be heard with another related appeal. The categories where leave may be granted are not closed. What is clear is that leave will not be given lightly to appeal from an interlocutory order of the District Court or from the District Court in its appellate jurisdiction where the applicant has already had the benefit of a hearing and a subsequent appeal. [6] I am presently unpersuaded that the legislature intended, in a case where this Court considered leave to appeal was warranted under s 118(3), that the appeal must be refused if it does not involve an error of law. I observe, however, that if an appeal under s 118(3) is limited to an error of law, an error in the exercise of a judicial discretion is an error of law. And a finding of fact not open on the evidence is an error involving at least a mixed question of fact and law. [7] This discussion is not critical in the present case. As Morrison JA has demonstrated, the applicant has not shown any error on the part of the District Court judge or any reason to warrant the grant of leave. It follows that the application for leave to appeal must be refused. [8] I note that I do not consider it necessary that I listen to the audio recording of the conversation between the applicant and police officer Kitching. This recording can only go to the collateral issue of the police officer’s credit. The matter was carefully considered by the magistrate at first instance and by the District Court judge on appeal. The fact that police officer Kitching did not initially remember saying things to the applicant when an audio recording demonstrates he did say these things, and then conceded he said them and explained himself in a plausible way, did not, in the circumstances here, require the magistrate to reject his evidence of the key events, which was supported by the evidence of others. [9] I agree with the order proposed by Morrison JA. [10] MORRISON JA: Mr Burke was convicted, after a trial, on three counts arising out of his conduct at the Racecourse Hotel on 20 April 2014. They included: 3 Queensland, Parliamentary Debates, Legislative Assembly, 30 April 1997, 1175 (Denver Beanland, Attorney-General). -- 3 of 12 -- 4 (a) drunk and disorderly in premises to which a permit/licence relates: s 164(1)(a) of the Liquor Act 1992 (Qld); (b) obstructing a police officer: s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld); and (c) serious assault, by spitting: s 340(1)(b) and (a)(i) of the Criminal Code 1899 (Qld). [11] Mr Burke represented himself at the trial in the Magistrate’s Court. Seven police officers4 gave evidence for the prosecution, including Senior Constable Kitching, the officer alleged to have been spat upon. Mr Burke cross-examined six of the seven officers,5 and gave evidence in his defence. [12] Mr Burke appealed the convictions under s 222 of the Justices Act 1886 (Qld). The appeal was heard in the District Court. It was dismissed on 18 December 2015.6 [13] Mr Burke seeks to challenge the dismissal of his appeal. He applies for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). [14] The issues raised by the application for leave to appeal are whether:7 (a) an appeal is necessary to correct a substantial injustice; and (b) there is a reasonable argument that there is an error to be corrected. Nature of the appeal [15] Mr Burke’s appeal to the District Court was under s 222 of the Justices Act 1886 (Qld). Any appeal to this Court must be under s 118(3) of the District Court of Queensland Act 1967 (Qld). There are differences between the two, as explained in White v Commissioner of Police:8 “There is therefore considerable difference between the nature of the appeal that was available to the applicant from the Magistrates’ Court to the District Court and that which he seeks to bring from the District Court to this Court. In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence adduced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.9 By contrast, an appeal to this Court from the District Court seeking to review the decision of the District Court in its appellate jurisdiction, may only be made with leave of this Court, and is not an appeal by way of hearing, but a strict appeal where error of law must be demonstrated.”10 4 Kitching, Curtis, Danz, Kitto, Bennett, Mosey and De Vries. 5 He did not cross-examine Bennett. 6 Burke v Commissioner of Police [2015] QDC 328. 7 Pickering v McArthur [2005] QCA 294 at [3]; Berry v Commissioner of Police [2014] QCA 238 at [4]; White v Commissioner of Police [2014] QCA 121 at [5]. 8 [2014] QCA 121 at [8]. 9 Commissioner of Police v Al Shakarji [2013] QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]. 10 Gobus v Queensland Police Service [2013] QCA 172 at [3]-[5] per Fraser JA; Commissioner of Police v Al Shakarji [2013] QCA 319 at [75] per North J. -- 4 of 12 -- 5 [16] Therefore, in order to demonstrate prospects of success in the proposed appeal Mr Burke must identify error of law in the decision of the District Court. The different versions of events [17] The versions given by the prosecution witnesses, on the one hand, and Mr Burke, on the other, were different in a number of critical respects. In the sequence of the events, they were: (a) the police witnesses said that SC Kitching intercepted Mr Burke when he was arguing with the hotel security men, and told him to leave or he would be arrested; at that point Mr Burke was very loudly abusing the security men; (b) Mr Burke was placed under arrest and moved from near the stairs of the hotel to the rear of a police vehicle; Mr Burke said he was aggressively attacked by SC Kitching and his head was slammed into the boot of the car; (c) according to the police, at that point Mr Burke was intoxicated, quite loud and abusive, calling the police names such as “dog cunts”, “not a real police officer” and saying “fuck off, don’t touch me”; and Mr Burke was struggling and resisting; Mr Burke said he may have sworn at SC Kitching but only after he had been slammed into the car and SC Kitching was acting brutally and aggressively, by stabbing his neck; (d) while Mr Burke was still standing at the police vehicle he spat in SC Kitching’s face; Mr Burke said that he may have spat at SC Kitching “in the heat of the moment” but it was after he had been stabbed with the car keys, and done to defend himself: “it was the only way to get him away from me, and he was baiting me to do it … it wouldn’t have happened if they didn’t use the carotid artery ploy of stabbing something into my neck and thinking I’m not going to react”;11 (e) SC Kitching then tried to restrain Mr Burke further so he could handcuff him; Mr Burke said two or three officers were restraining him; and (f) Mr Burke resisted even more, causing SC Kitching to apply pressure to Mr Burke’s carotid artery, as a form of pain compliance method; Mr Burke said that car keys were used to stab him in the neck, and the spitting only occurred after that. [18] In the course of his cross-examination Mr Burke also put a number of propositions to police witnesses, such as: (a) the police statements were made up, and the similar wording used in them pointed to collusion; (b) SC Kitching had destroyed the CCTV footage; (c) SC Kitching was a brutal officer, a liar and a “professional perjurer” who had committed perjury; (d) SC Curtis was a liar; (e) that the injury to his neck was done with a car key, and not (as SC Kitching said) a fingernail; and (f) that he was defending himself from unethical, brutal conduct, and reacted when he was stabbed in the neck. 11 AB 101. -- 5 of 12 -- 6 [19] It is of some significance that Constable Bennett was not cross-examined. His version supported that of SC Kitching and was contrary to that of Mr Burke, in these ways: (i) SC Kitching intercepted Mr Burke and brought him to the rear of the police car; (ii) Mr Burke was then in an agitated state, yelling very loudly and using words like “dog cunts” and “fuck you”; (iii) Mr Burke was resisting being restrained and Constable Bennett assisted in handcuffing him; (iv) while still upright at the back of the police car, Mr Burke spat into SC Kitching’s face; and (v) it was after that when Mr Burke was put on the ground. The Magistrate’s decision [20] The learned Magistrate noted a number of features in the course of his reasons for finding Mr Burke guilty on all three counts: (a) the suggestion of collusion on the part of the prosecution witnesses was rejected as there were inconsistencies in their evidence; the differences were not surprising, and an indication of the veracity of their accounts;12 (b) there was no evidence from prosecution witnesses that the use of the carotid artery pressure was prior to the spitting; even Mr Burke was initially equivocal about the timing but then said it was in response to the use of the pressure on his neck;13 (c) he accepted the witnesses for the prosecution, and therefore rejected the evidence of Mr Burke, as to the spitting and the timing of it; therefore that charge was proven beyond reasonable doubt; (d) there was no evidence that Mr Burke was drunk; however, he accepted the evidence of the police officers that Mr Burke was yelling obscenities at the security men, and that amounted to disorderly conduct; the evidence of Mr Burke supported that finding as he conceded that he may have given the security men a mouthful;14 and (e) the evidence of the police officers was accepted on the charge of obstructing police. [21] Plainly, the learned magistrate did not accept the evidence of Mr Burke, particularly where it differed from that of the police officers on the questions of the use of the pressure on the neck, the timing of that in relation to the spitting, and that he was reacting defensively to improper conduct on SC Kitching’s part. [22] Although not said in express terms, the findings are findings of credit against Mr Burke, and in favour of the police witnesses. So much is evident from the findings themselves, but also the fact that the learned Magistrate referred to the “veracity” of the police officers.15 The approach of the District Court Judge [23] The appeal to the District Court was on the ground that the verdict was unreasonable or could not be sustained having regard to the evidence. The learned primary judge reviewed the evidence of both the police officers and Mr Burke (who represented himself on the appeal).16 His Honour said:17 12 AB 127. 13 AB 127. 14 AB 129. 15 AB 129, line 5. 16 [2015] QDC 328 at [5]-[6]. 17 [2015] QDC 328 at [7]. -- 6 of 12 -- 7 “In convicting [Mr Burke], the learned magistrate evidently accepted the core elements of the police version of events. That necessarily involved rejecting the competing version of [Mr Burke] (although the learned magistrate was not prepared to find that [Mr Burke] was drunk). His Honour rejected any suggestion of collusion among the police witnesses.” [24] His Honour reviewed the evidence as to whether the offence involving spitting had been proven, finding it had. His Honour also found that the defences of self-defence or provocation were not made out. In each case, it was noted that the learned magistrate had rejected Mr Burke’s evidence.18 [25] The learned primary judge then set out the specific complaints by Mr Burke on the appeal:19 (i) the police version of events was the product of demonstrable perjury and collusion and ought not to have been accepted; (ii) the learned magistrate ought not to have been satisfied that the police were acting in the execution of their duty; (iii) the evidence did not exclude that Mr Burke was defending himself against police thuggery and an unlawful assault that ultimately resulted in his seizure; (iv) Mr Burke was not required to be passive in the face of unlawful assault by the police; (v) relevant evidence was suppressed or doctored; (vi) Mr Burke was denied the opportunity to call relevant medical evidence; (vii) the disciplinary records of officer Kitching and a cell audio ought each have been disclosed; (viii) Mr Burke ought now be permitted to rely on a different medical report and on a report by the ambulance service; (ix) as at the time of trial Mr Burke was hampered by mental health issues; (x) the magistrate exhibited bias and otherwise conducted the trial inappropriately; (xi) the prosecutor was guilty of misconduct; (xii) the assault was not “serious” in any event; and (xiii) Mr Burke ought not to have been deprived of a trial by jury. [26] What followed in the reasons below was a detailed consideration of each of those points. Before embarking on that exercise the learned primary judge referred to the task on the appeal:20 “[12] The verdicts hinged upon the resolution of competing evidence of fact. Whilst this appeal is by way of rehearing, findings of fact made by a magistrate at trial are not lightly departed from. Whether different findings should now be made requires an 18 [2015] QDC 328 at [8]-[9]. 19 [2015] QDC 328 at [11]. 20 [2015] QDC 328 at [12]-[13]. -- 7 of 12 -- 8 examination of the content of the evidence. [Mr Burke] submits that a critical examination of the evidence reveals that the police evidence was not credible or reliable and was, indeed, tainted by demonstrable collusion and perjury. [13] [Mr Burke] pointed to what he saw as demonstrable errors or inconsistencies in the police evidence. It must be remembered that not every inconsistency or error demonstrates a general lack of credibility or reliability in relation to proof of the elements of the relevant offences, far less proves collusion or perjury. Some level of inconsistency or error can be expected when different people recount their recollection of a past event. The gravity of the inconsistency or error, insofar as proof of the relevant charge is concerned, should be duly considered.” [27] The contended inconsistencies in the police evidence, and the suggested collusion and perjury on the part of the police witnesses, were thoroughly examined21 and those contentions were rejected. Similarly, the contention that the magistrate was biased was also rejected.22 [28] As to the contended inconsistencies, the learned primary judge concluded:23 “[41] Any inconsistencies or alleged errors in the police evidence need to be considered in the context of the evidence as a whole. It should be noted that there was a considerable body of evidence from multiple police officers to the following effect: i) [Mr Burke] was disorderly; ii) [Mr Burke] was escorted, by officer Kitching (using a come-along hold) to the rear of the police vehicle; iii) [Mr Burke] obstructed the police as he was arrested and restrained; iv) [Mr Burke] spat at officer Kitching; v) The ‘pressure point’ technique, of which [Mr Burke] complains, was applied after the spit. [42] It was open to the Magistrate to rely on that body of evidence in convicting [Mr Burke], notwithstanding a degree of error/inconsistency in the alleged evidence otherwise. I am not persuaded to reach a different conclusion.” [29] The learned primary judge also dealt with the contention that the police officers’ evidence was not corroborated by the CCTV footage or independent non-police witnesses:24 “[50] The fact that the evidence of the police officers on the core matters of relevance was not corroborated by contemporaneous audio or CCTV footage or by the evidence of independent (ie non-police officer) eyewitnesses is relevant. In those circumstances, 21 [2015] QDC 328 at [14]-[28], [34]-[40]. 22 [2015] QDC 328 at [27]. 23 [2015] QDC 328 at [41]-[42]. 24 [2015] QDC 328 at [50]. -- 8 of 12 -- 9 the learned magistrate was required carefully assess the testimony of the officers to determine whether it was sufficiently credible and reliable in order to establish the guilt of [Mr Burke] beyond reasonable doubt, notwithstanding the lack of such corroboration and notwithstanding [Mr Burke’s] competing version of events. That does not mean however, that the testimony of the police officers could not be accepted or that it was insufficient to ground the convictions.” [30] Mr Burke’s contention that SC Kitching had unlawfully assaulted him with a car key was examined in detail. The learned primary judge reviewed the evidence, and the contention was rejected.25 [31] One of Mr Burke’s central points on the District Court appeal, as it was in this Court, was that SC Kitching had lied about his conduct, in that he denied that he said to Mr Burke “I don’t normally run and jump on people…”. The false denial, exposed on an audio recording, was said to be in this passage of evidence:26 “Okay. Well, just in that audio there you’ve just said that you don’t normally run and jump on people?---That is also not correct. If you have a listen to the audio, I didn’t say that. Well, I think that you pretty much did. You said you don’t normally run and jump on people so you’re saying that that’s an exception. BENCH: We could replay the audio if you’d like?---Sir, without paraphrasing, I did not say that. DEFENDANT: Well, we probably will. BENCH: Well, we’ll replay the audio so we can hear it. DEFENDANT: You don’t normally jump on people but you just kept it for me that time?---No, sir.” [32] Once the audio recording had been played SC Kitching accepted that he had said “I don’t normally run and jump on people…”:27 “DEFENDANT: Well, you have said that, haven’t you?---That’s correct. It’s on the audio, yes. So you wouldn’t admit it otherwise, would you?---No. No. It’s on the audio. That’s what I said. No. But you didn’t admit it before?---No, but that’s not what the question was.” [33] SC Kitching went on to explain what he meant by that statement, namely that he tried to provide Mr Burke the opportunity to walk away: “I don’t automatically go you’ve committed an offence, you come with us. You were provided with an opportunity … to leave - stop your behaviour and leave. That’s what I meant by that statement.”28 25 [2015] QDC 328 at [29]-[30]. 26 AB 25 lines 31-46. 27 AB 27 lines 20-26. The statement which is on the audio recording is “I don’t normally run and jump on people for playing up”. 28 AB 28 lines 4-8. -- 9 of 12 -- 10 [34] The learned primary judge examined that evidence and listened to the audio recording. His Honour rejected the contention that it revealed that SC Kitching had instigated the incident or justified a rejection of the credibility or reliability of SC Kitching’s evidence.29 [35] The learned primary judge also examined the evidence underlying the contentions that relevant evidence was not adduced at the trial, notably: (i) audio recordings that the police might have made, but did not; (ii) failure to call hotel staff; and (iii) possible footage from other CCTV cameras; and (iv) a possible audio recording from the cell.30 His Honour found that there was no evidence to suggest the existence of the audio record from the cell, and that there was nothing in the other complaints:31 “[48] Officer Kitching’s explanations for not marshalling further evidence in these respects, were plausible and did not justify, far less compel, jumping to a conclusion that relevant evidence, adverse to the prosecution, had either been suppressed or destroyed.” [36] Another contention, that Mr Burke had been denied the chance to adduce medical evidence, was examined and rejected.32 [37] Further, the learned primary judge dealt with Mr Burke’s application to adduce new evidence on the appeal. This was an ambulance report made on the night. Mr Burke’s contention was that there was a relevant inconsistency between what it recorded and the police evidence. The evidence was examined, and the contention was rejected.33 [38] Finally, the learned primary judge examined the contentions that Mr Burke had been denied a fair trial because: (i) he did not have access to SC Kitching’s disciplinary records; (ii) he was unable to adduce a medical report as to his anxiety disorder and generalised depression (the witness was unavailable at the time of the trial); (iii) the magistrate compressed the trial, rushed the parties and inappropriately intimidated Mr Burke; (iv) the magistrate showed bias; (v) the police witnesses spoke to each other during an adjournment; and (vi) the trial proceeded in a summary way and he was denied a jury trial. In each case the learned primary judge looked at the evidence that was said to be relevant and rejected the contention.34 Mr Burke’s contentions in this Court [39] An examination of Mr Burke’s outline reveals that the contentions before the District Court are repeated here. [40] In large part, the outline consists of abusive and derogatory descriptions of the learned magistrate, and persistent allegations that the police witnesses were dishonest, corrupt, liars, perjurers, unethical, unprofessional and brutal. [41] When one examines the points raised in the District Court (paragraphs [14]-[29] above) there is nothing new raised in the points for the proposed appeal to this Court, and more importantly no attempt to identify an error of law in the way in which the appeal was dealt with by the learned primary judge. 29 [2015] QDC 328 at [31]-[33]. 30 [2015] QDC 328 at [43]-[47]. 31 [2015] QDC 328 at [48]. 32 [2015] QDC 328 at [51]-[52]. 33 [2015] QDC 328 at [53]-[55]. 34 [2015] QDC 328 at [56]-[72]. -- 10 of 12 -- 11 [42] The various references to the learned primary judge are all in the context of asserting that the police witnesses’ evidence should have been rejected in favour of that of Mr Burke. [43] One of the main points in the outline is (again) the statement by SC Kitching that “I don’t run and jump on people”.35 Mr Burke complains that the learned primary judge should have found that SC Kitching perjured himself when he initially denied saying this, and the recording shows that he was the initiator of the incident. The learned primary judge’s assessment of this aspect was, in my respectful view, correct. There is no error of law in his Honour’s conclusion. In any event, I have listened to the audio recording, and examined the transcript of evidence at the trial. I would have come to the same conclusion as did the learned primary judge. The complete quotation is “I don’t usually run and jump on people for playing up”, which was said in the context that the “playing up” was Mr Burke’s conduct at the hotel. It was plainly a statement of SC Kitching’s usual approach to dealing with any offender, that is he did not usually rush to charge someone when lesser response may be adequate, such as that which he told Mr Burke, namely “all I wanted you to do was to calm down and walk away”. [44] Criticism of the learned primary judge is advanced in relation to the issue of whether the spitting occurred before or after Mr Burke was put on the ground.36 His Honour made a careful and thorough examination of the evidence, concluding that it was open to the learned magistrate to accept the police witnesses. I respectfully agree. No error of law is demonstrated. [45] Mr Burke criticises the learned primary judge’s treatment of the inconsistencies in the evidence, pointing to paragraphs [16], [17], [23], [37], [39], [40] and [64] of the reasons below.37 No error of law has been identified in the way in which the learned primary judge approached the review of those matters. [46] Further, the repeated assertion that the use of the pressure technique was unlawful, as contrary to the Police Powers and Responsibilities Act or the Police Service Administration Act, does not advance matters. First, the evidence at trial was that it was a lawful technique taught at the Police Academy, though not used by all officers.38 Secondly, there was no finding by either the learned magistrate, or the primary judge, that SC Kitching’s actions were unlawful. Indeed at both stages the defences of provocation and self-defence were rejected.39 [47] Mr Burke repeats the contention advanced before the District Court, that he did not receive a fair trial because of the magistrate’s conduct.40 The learned primary judge has not been shown to have erred in law in the way in which that issue was dealt with. He found that the trial was fairly conducted. Having read the transcript, watched the CCTV footage and listened to the audio tape, I respectfully agree with that conclusion. [48] In my view, there is no merit in the contentions advanced in support of the proposed appeal, and it has no prospects of success. Need to correct a substantial injustice [49] Given the conclusion that the proposed appeal has no prosects of success it is not necessary to deal with this question. 35 Mr Burke’s outline, page 1. 36 Mr Burke’s outline, page 3. 37 Mr Burke’s outline, pages 4-6, 10. 38 Kitching AB 52 line 10; Danz AB 84 lines 4-9; Kitto AB 89 line 4; De Vries AB 97 lines 7-13; cf Curtis AB 77 line 18. 39 AB 128 lines 34-39; [2015] QDC 328 at [64]. 40 Mr Burke’s outline, pages 5-9. -- 11 of 12 -- 12 Conclusion [50] For the reasons given above I would refuse the application for leave to appeal. [51] ATKINSON J: I agree that the application for leave to appeal should be refused for the reasons given by Morrison JA. [52] As the question of the wider circumstances in which leave to appeal might be granted by this court does not arise for decision in this case, I prefer not to express an opinion which might confine the development of legal principle in a case where those limits are relevant to the determination of the application for leave to appeal. -- 12 of 12 --