Church v Commissioner of Police [2016] QCA 78

SUPREME COURT OF QUEENSLAND CITATION: Church v Commissioner of Police [2016] QCA 78 PARTIES: CHURCH, Sherrilyn Charmaine (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: CA No 298 of 2015 DC No 2 of 2015 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time s 118 DCA (Criminal) ORIGINATING COURT: District Court at Warwick – [2015] QDC 259 DELIVERED EX TEMPORE ON: 4 April 2016 DELIVERED AT: Brisbane HEARING DATE: 4 April 2016 JUDGES: Morrison and Philippides JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for extension of time within which to apply for leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of speeding – where the application for leave to appeal was filed out of time – whether application for extension of time in which to seek leave to appeal should be granted R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed COUNSEL: The applicant appeared on her own behalf T A Fuller QC for the respondent SOLICITORS: The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent -- 1 of 3 -- 2 MULLINS J: Ms Church was driving her vehicle on the New England Highway on 5 March 2014 when she was stopped by police for speeding. She does not dispute that she was travelling at 116 kilometres per hour in a 100 kilometres per hour zone. She defended the charge on the basis of a claim of extraordinary emergency, but was convicted by the Magistrate at Warwick after a trial on 13 February 2015. She was fined $300 and ordered to pay Court costs of $87.70. Ms Church appealed under s 222 of the Justices Act 1886 (Qld) against both conviction and sentence. That appeal was dismissed on 16 October 2015: Church v Commissioner of Police [2015] QDC 259. Ms Church filed the application for leave to appeal on 7 December 2015, which was about three weeks out of time. Ms Church therefore applies for an extension of time within which to apply for leave to appeal. Although only a relatively short extension of time is required, there is no point in extending the time for making the application, if the appeal is not viable: R v Tait [1999] 2 Qd R 667 at 668. The appeal before the District Court Judge was conducted as a re-hearing on the evidence given at the Magistrates Court trial, together with two additional police statements that were tendered by Ms Church without objection by the prosecution. Ms Church’s defence was that she was acting reasonably in speeding to escape an extraordinary threat from a truck which had been harassing her for a distance of 17 to 18 kilometres. Before the Magistrate, the two police officers who stopped Ms Church, Senior Constables Pyke and Cremasco, gave evidence for the prosecution. Ms Church also gave evidence. Senior Constable Pyke had activated a body-worn video recorder before he approached Ms Church’s vehicle when it was stationary. The video recording was tendered in DVD form in the Magistrates Court and viewed also by the District Court Judge. The explanation that was first given by Ms Church to Senior Constable Pyke that is recorded on the video did not mention being harassed by a truck and, towards the end of the conversation, Ms Church did say that she had recently passed a slow-moving truck and had to travel at 120 kilometres an hour to pass it. Senior Constable Pyke stated in evidence that the entire conversation he had with Ms Church was recorded on the video. No mention of Ms Church being harassed by a truck was heard on the video recording. Senior Constable Cremasco, who administered a random breath test on Ms Church, gave evidence that he did not recall any conversation she had with him about being harassed by trucks or other traffic. Ms Church gave evidence of the harassment and erratic driving she had suffered from the truck driver for more than 17 kilometres, where there were no shoulders on the road, that she finally got ahead of the truck going down the hill, and then was trying to put distance between the truck and her vehicle. She said that the minute the police officer had appeared in her window: “I told him exactly what I had been experiencing and that there was the relief of actually getting out onto a clear road and making distance between me and that truck led to that sense of – of fatigue that hit me because the emergency was over.” Ms Church claimed that this conversation she had with Senior Constable Pyke had not been recorded and, therefore, was not on the DVD. The Magistrate accepted the evidence of the police witnesses and not Ms Church’s account. On the appeal to the District Court, Ms Church asserted that police falsified reports and DVD evidence and the DVD evidence caused the Magistrate to err. Ms Church submits that the -- 2 of 3 -- 3 District Court Judge should have accepted her arguments and determined the appeal in her favour. If given leave to appeal, Ms Church wishes to raise again her allegation that police falsified their evidence and manipulated the DVD evidence, which Ms Church concedes were considered by the District Court Judge. The District Court Judge expressed the view at paragraph [28] of the reasons that if the truck driver had been behaving as alleged by Ms Church: “It seems implausible that the only option available was to pass the offending vehicle at speed. Having regard to the nature of the road depicted in the tendered photographs and the distance of 17 kilometres referred to, it is hard to accept that the appellant had no opportunity to pull over and allow the truck to move away from her.” In addition, the District Court Judge considered (at [30]) it was relevant to the reliability of Ms Church’s account that she had been subjected to menacing conduct by the truck driver just before she was stopped for speeding that: “She would have immediately proffered that explanation to the police officer questioning her.” But no such explanation was heard in the recorded conversation. The District Court Judge noted (at [30]) that both police officers denied there was an earlier unrecorded conversation with Senior Constable Pyke. The District Court Judge then concluded (at [31]) that Ms Church’s description of an earlier conversation is inconsistent with her demeanour and responses when approached by the officer, as seen on the video. The District Court Judge therefore rejected (at [31] to [32]) Ms Church’s evidence to the effect that she had an earlier, unrecorded conversation with Senior Constable Pyke, and also her account that she had acted to avoid harassing behaviour by another driver. The District Court Judge found (at [35]) the evidence of each of the police officers to be consistent with the other and what could be seen on the video. The conclusion was reached (at [36]) that the Prosecution had negatived extraordinary emergency and proved the offence of speeding beyond reasonable doubt. Ms Church had the opportunity to explore all the factual matters before the Magistrate and the District Court Judge. It is apparent from the reasons for judgment that the District Court Judge had carefully analysed all the evidence before reaching the conclusion to dismiss the appeal. There is no error of law apparent in either the process or the application of the law undertaken by the District Court Judge. The conclusions reached by the District Court Judge on the evidence are unimpeachable in the light of the nature and extent of the evidence before the Court. It is not in the interests of justice for Ms Church to be given another opportunity to attempt to pursue the same arguments raised in the District Court. The application for extension of time within which to apply for leave to appeal should be refused. MORRISON JA: I agree. PHILIPPIDES JA: I also agree. MORRISON JA: The order of the Court is that the application for extension of time within which to apply for leave to appeal is refused. Thank you, Ms Church. -- 3 of 3 --