Commissioner of Police v Al Shakarji [2013] QCA 319

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of Police v Al Shakarji [2013] QCA 319 PARTIES: COMMISSIONER OF POLICE (applicant) v AL SHAKARJI, Mustafa (respondent) FILE NO/S: CA No 16 of 2013 DC No 312 of 2012 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Townsville DELIVERED ON: 25 October 2013 DELIVERED AT: Brisbane HEARING DATE: 22 August 2013 JUDGES: Morrison JA and Margaret Wilson and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders of the District Court allowing the appeal and concerning costs of the appeal. 4. Remit the matter to the District Court for determination pursuant to Part 9 Division 1 of the Justices Act 1886 (Qld). CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the respondent was convicted in the Magistrates Court of disobeying a speed limit and sentenced accordingly – where the respondent‟s appeal to the District Court was successful and his conviction and sentence were set aside – where the District Court judge was obliged to weigh the conflicting evidence and draw his own inferences and conclusions – where the applicant seeks leave to appeal pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave should be granted – if so, whether the matter should be remitted to the District Court for determination pursuant to Part 9 Division 1 of the Justices Act 1886 (Qld) -- 1 of 20 -- 2 District Court of Queensland Act 1967 (Qld), s 118, s 118(b), s 118(3), s 118(8), s 119(1) Justices Act 1886 (Qld), s 222, s 223, s 223(1), s 225 Barmettler & Anor v Greer & Timms [2007] QCA 170, considered Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Gobus v Queensland Police Service [2013] QCA 172, cited Osgood v Queensland Police Service [2010] QCA 242, cited Pickering v McArthur [2005] QCA 294, cited R v Ruthven [2013] QCA 142, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Shambayati v Commissioner of Police [2013] QCA 57, cited Smith v Woodward [2009] QCA 119, cited Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited Tierney v Commissioner of Police [2011] QCA 327, cited Tsigounis v Medical Board of Queensland [2006] QCA 295, cited COUNSEL: V A Loury for the applicant The respondent appeared on his own behalf SOLICITORS: Director of Public Prosecutions (Queensland) for the applicant The respondent appeared on his own behalf [1] MORRISON JA: This is an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (“District Court Act”). [2] The respondent was convicted on 4 September 2012 of disobeying a speed limit. The conviction followed a two day trial in the Magistrates Court. The respondent appealed against that decision to the District Court. On 21 December 2012 the appeal was allowed and the conviction and sentence were set aside. [3] The grounds of the application are: (a) the learned District Court judge failed to conduct the appeal as a rehearing, and make his own assessment of the evidence and form his own conclusions upon the issue of the respondent‟s guilt, contrary to s 223(1) of the Justices Act 1886 (Qld); and (b) his Honour did not make an order according to s 225 of the Justices Act. Leave to appeal [4] Leave is usually only granted where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error which should be corrected.1 1 Shambayati v Commissioner of Police [2013] QCA 57 at [19]; Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 20 -- 3 [5] The applicant‟s approach was that if it could be demonstrated that the learned primary judge did not conduct a rehearing in the way in which s 223(1) of the Justices Act requires, then such an error would warrant leave being granted to appeal. An appeal under s 223 of the Justice Act [6] An appeal to a District Court judge under s 222 of the Justices Act is by way of rehearing, as s 223 of that Act provides: “(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is – (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced.” [7] On such an appeal the District Court judge was required to make his 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.2 The necessity for that approach was laid down by the High Court in Fox v Percy3 where Gleeson CJ, Gummow and Kirby JJ stated: “Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge‟s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.” In Warren v Coombes, the majority of this Court reiterated the rule that: “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.” 4 2 Rowe v Kemper [2008] QCA 175 at [3] per McMurdo P. 3 Fox v Percy (2003) 214 CLR 118. 4 Fox v Percy at 126-127 (internal references omitted). -- 3 of 20 -- 4 [8] The learned primary judge was dealing with an appeal from the Magistrates Court pursuant to s 222 of the Justices Act. Consequently, an appeal to this Court from that decision is not an appeal by way of rehearing, as whilst s 118 of the District Court Act applies to such an appeal5, subsection (8) provides that an appeal by way of rehearing applies to an appeal from the District Court in its original jurisdiction, as opposed to its appellate jurisdiction.6 [9] Section 119(1) of the District Court Act provides: “On the hearing of an appeal 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.” [10] Section 119(1) of the District Court Act would apply in the event that leave is granted. However, for reasons which will appear, the application of s 119(1) is not determinative. The District Court Appeal Application to adduce new evidence [11] Before the appeal was heard in the District Court the learned primary judge dealt with an application by the respondent to adduce new evidence on the appeal. The application sought to introduce two pieces of new evidence, namely: (a) a recording between the respondent and the prosecutor several days prior to the trial in the Magistrates Court; and (b) an audiovisual recording of a conversation between the respondent and the traffic officer at the roadside where the offence occurred. [12] The point of seeking to adduce the recording of the conversation between the respondent and the prosecutor was that, it was alleged that the prosecutor had confirmed that the prosecution would not call an expert at the trial. This was said to have created some unfairness for the respondent in that Mr Mulcare, an expert in radar devices, was called at the trial over the objection of the respondent. The conduct of the prosecutor was alleged to be “deceptive and wilful misleading”, and “a deliberate act by the prosecutor to ensure I pay thousands of dollars for a witness she said was not going to appear”.7 [13] The point behind the audiovisual recording at the roadside was, as it was contended in the respondent‟s affidavit, that the magistrate did not allow the respondent to put the recording into evidence. In fact, the audiovisual recording at the roadside was tendered at the trial as Exhibit 17. This was identified to the learned primary judge on the application to adduce further evidence.8 [14] It is notable that the application to adduce new evidence did not include two items which featured in the submissions before this Court, namely the Australian 5 See District Court of Queensland Act 1967, s 118(1)(b). 6 See Tsigounis v Medical Board of Queensland [2006] QCA 295; Gobus v Queensland Police Service [2013] QCA 172. 7 AR 277. 8 AR 196-197. -- 4 of 20 -- 5 Standards for Radar9 (“Australian Standards”) and the Queensland Police Service Speed Management Training Mobile Radar Participant‟s Manual (“Police Manual”).10 Those two documents assume significance because one of the respondent‟s contentions before the learned District Court judge, and before this Court, was that he had been denied the opportunity to put those documents into evidence at the trial, and that was a factor which influenced the learned primary judge to deal with the appeal in the way he did. [15] During the course of argument on the application it became apparent that Mr Mulcare was called at the trial to give evidence about the way the radar device works and its accuracy, neither of which were put in issue by the respondent.11 Further, the respondent made it plain to the learned primary judge that his main case was that the traffic officer “got the wrong car, he targeted the wrong car. So the – the way he measured my speed, that was the issue and that‟s where the whole case was based on ...”.12 [16] The respondent conceded that the expert was not going to give evidence about anything that was actually in issue, because, as it turned out, the only issue was about whether the speed recorded was that of the respondent‟s car, or someone else‟s car.13 The respondent was right to make that concession, as at the trial he made it plain that there was no issue about the accuracy or testing of the radar device, but merely its operation in the sense that the traffic officer targeted the wrong vehicle. [17] There was no proposal by the respondent to adduce new evidence, on the appeal to the District Court, from his own expert. His real complaint about the expert was that he had been ordered to pay about $3,700 for expert witness expenses as a consequence of the trial.14 Indeed, when the learned primary judge asked the respondent whether his own expert would have said anything different to what Mr Mulcare said, the answer was that the respondent could not comment because he did not know.15 [18] The respondent confirmed a second time to the learned primary judge that the issue at the trial was whether the reading was taken from the respondent‟s car or not.16 Appeal hearing [19] Four days later the appeal was heard. There was no renewal of the application to adduce new evidence beyond the two documents the subject of the prior application. [20] The learned primary judge dealt with the appeal on the basis that the magistrate conducting the trial did not give a sufficient explanation of how the court operated. This, it was said, led to difficulties concerning the tendering of evidence by the respondent, and whether the respondent could address on those materials, specifically by reference to the Police Manual and the Australian Standards. 9 AS2898.2-2003. 10 Queensland Police Service Speed Management Training Mobile Radar QC0573 – Decatur Genesis Mobile Radar (Operator) Version 1.4 Participant‟s Manual. 11 AR 186-187. 12 AR 187. 13 AR 187. 14 AR 190-191. 15 AR 193. 16 AR 192. -- 5 of 20 -- 6 Further, the learned primary judge took the view that the magistrate had dealt with the respondent in an inappropriate way. [21] The following passages of his Honour‟s reasons demonstrate the way the appeal was approached: “The learned Magistrate rejected the defendant‟s evidence where it conflicted with that of Constable Donnelly referring to the defendant‟s evidence as comparable to “some spy story out of a Graham Greene novel”, and later as being “quite strange and weird”. Normally such a rejection of evidence would lead to an appeal such as this being promptly dismissed. There are, however, a number of factors which are of concern to me. There were a number of exchanges between the Bench and the appellant during the appellant‟s address that are of concern to me.”17 His Honour then referred to a disclosure issue as part of the background to the trial: “I allowed the appellant to tender as fresh evidence a recording that he made on that day of a conversation that he had with the police Prosecutor. He asserts that one can hear the Prosecutor tell him as a result of his conceding certain matters expert witnesses will not be called. I have listened to the tape and I must say I cannot hear that.” His Honour then continued with some comments about the wisdom of a conversation between a prosecutor and an unrepresented litigant: “At the commencement of the appellant‟s submissions the learned Magistrate acknowledges that perhaps he should have spent more time explaining Court procedures to the appellant. This followed an exchange at the end of the previous days [sic] proceedings where the Magistrate pointed out to the defendant that he could not address concerning police manuals or other documents that had not been tendered. It was clear that the appellant had not understood that until that moment. It is equally clear that there were relevant manuals and an Australian standard regarding the operation of the unit, which documents had some significance in the case. When the Court resumed the next morning and the misunderstanding was plainly on the learned Magistrate‟s mind, it was not too late for the matter to be corrected by allowing the appellant to present any further documents that he wished to produce. The learned Magistrate did not do that, instead he adhered to his statement of the previous day that the evidence was “a closed shop” and proceeded to deal with the appellant in an aggressive and, in my view, quite inappropriate way. It must be remembered in cases like this that justice must not only be done, it must also be seen to be done. Repeated use of the word “no” 17 AR 226-227. -- 6 of 20 -- 7 by the Magistrate, together with repeated exhortations to the appellant to “save it for the appeal” were, in my view, quite inappropriate language for a judicial officer to use to an unrepresented person attempting to make submissions. The reference to the appellant talking nonsense and humbug add to the appearance of partiality. It must have been apparent to the learned Magistrate that his failure to give a more fulsome explanation of how the Court operates had led to the difficulties that the appellant was experiencing regarding his address. The learned Magistrate refused to accept a written submission from the appellant because it was said to contain reference to some of the matters that the Magistrate ruled to be inadmissible and not the subject of evidence.”18 [22] Having then referred to several decisions dealing with how courts should treat unrepresented litigants, his Honour concluded: “There can be no doubt that the responsibility for ascertaining whether an unrepresented defendant is aware of his rights and obligations rests with the Court. That did not happen here. The appeal must be allowed. I set aside the conviction and the sentence imposed. In my view, because of the nature of the allegation, it is not appropriate to order a rehearing.”19 [23] I will deal shortly with the question of whether the learned primary judge‟s criticisms of the magistrate are well founded. [24] What is revealed in his Honour‟s reasons is that he plainly did not do that which is required by the High Court in Fox v Percy20, and this Court in Rowe v Kemper21. The learned primary judge was obliged to conduct the appeal as a new hearing, and make his own assessment of the evidence and form his own conclusions upon the issue of the respondent‟s guilt, having due regard to the findings and conclusions of the magistrate. This clearly did not occur. The consequence is that there is demonstrated error in the way the appeal was dealt with. [25] That finding is sufficient to warrant the grant of leave to appeal, and for the appeal to be allowed. Were the learned primary judge’s criticisms warranted? [26] The trial in the Magistrates Court took place over two days. The first day was occupied with the evidence, and addresses occupied part of the second day. [27] The learned primary judge was critical of the magistrate‟s failure to fully explain the operations of the Court. That was linked to what was said to be the difficulties that the respondent was experiencing regarding his address. Reference was made to the comment by the magistrate on the morning of addresses as indicating that the misunderstanding, namely about whether the police manuals or other documents could only be referred to if tendered, was still on the magistrate‟s mind. 18 AR 228-229. 19 AR 230. 20 Fox v Percy (2003) 214 CLR 118 at 126-127. 21 Rowe v Kemper [2008] QCA 175 at [5]. -- 7 of 20 -- 8 [28] It is apparent that the respondent had some degree of familiarity with court procedure. At the opening of proceedings the magistrate, in the course of speaking to the respondent said: “You may well be aware of the procedure here in Court …”, at which point the respondent answered, “Yes, your Honour”.22 Further, at the start of the second day, the respondent was asked whether he was ready to address and the magistrate said: “… I understand that you‟ve gone through this thing before, and I think you told me that on the previous mention. So that‟s why I, perhaps, didn‟t spend too much time explaining to you the procedures, but maybe I should have. You address me on matters that have been raised in the trial so far.”23 The respondent answered “Yes, your Honour”. [29] Leaving aside those references, the magistrate‟s management of the respondent, and the respondent‟s own management of the trial, provide a basis for concluding that the respondent was not in fact disadvantaged. Thus the record reveals: (a) the respondent articulated objections to evidence both as to the calling of the expert by the prosecutor, and the tendering of a plan;24 (b) the respondent was able to articulate that the expert was not necessary because “I‟m only contesting the – the operation of the device, not the actual accuracy of the device”;25 (c) the respondent advanced an argument that he was disadvantaged because he had stood down his own expert, having been told that the prosecution would not call experts26; however, shortly before the trial the respondent had said that he would not be calling an expert “at this stage”;27 (d) the respondent required the witness who drew the plan of the road works to be called so he could cross-examine them;28 (e) the respondent articulated objections to the police video being put into evidence, on the basis of its late disclosure;29 (f) the respondent was not slow to raise other issues, such as the fact that he did not have a copy of a particular document in Court;30 (g) the respondent actively cross-examined all of the witnesses called; (h) the respondent‟s cross-examination31 of the traffic officer was quite detailed, occupying 24 pages of transcript and dealing with a number of matters including: 22 AR 6. 23 AR 125. 24 AR 17. 25 AR 18. 26 AR 19. 27 AR 23 and 261. 28 AR 20. 29 AR 43-45. 30 AR 49. 31 AR 57-82. -- 8 of 20 -- 9  the nature of the tests carried out by the police officer on the equipment;32  the nature of a mobile test;33  whether one would get a single Doppler tone if there were other vehicles present;34  the width of the radar beam and the reflective capability of vehicles;35  that the radar must support a visual speed assessment;36  the traffic conditions, number of cars present, when the police video was done, the method of interception and the events at interception;37  the reasons for inaccuracy of a measured speed;38 (i) the magistrate explained to the respondent, when he sought to tender his own map, how that was done saying: “If you want any evidence before the Court by way of documents, now you can show a document to the witness. If the witness adopts the document and says that it‟s accurate or it‟s only accurate to this extent ... all well and good it becomes an exhibit. ... a document can be, a map – you can by all means show it to the witness”;39 (j) the respondent then cross-examined the traffic officer on the respondent‟s own map, which became Exhibit 14;40 (k) the respondent cross-examined the traffic officer on the Police Manual41, but it was only in respect of page 17 relating to the use of the “estimation speed detection method”; in the course of that the magistrate explained to the respondent what procedure should be followed if a witness had stated something and the respondent wished to put a contrary version;42 (l) the respondent then proceeded to cross-examine by putting a contrary case to the traffic officer;43 (m) the respondent cross-examined Mr Mulcare on topics such as his qualifications, whether his study included radars, whether one would get a single Doppler tone for multiple targets, the distance that a beam carried, the reflective capability of vehicles, and how one locked in the speed calculation;44 32 AR 58-60. 33 AR 60. 34 AR 61. 35 AR 60-61. 36 AR 62. 37 AR 63-67. 38 AR 67. 39 AR 69. 40 AR 71. 41 Commencing at AR 71. 42 AR 72-73. 43 AR 73-77. 44 AR 92-96. -- 9 of 20 -- 10 (n) importantly, the respondent cross-examined on calculations made by Mr Mulcare, asking “Would you be able to present those calculations to the Court?”, and when the magistrate asked “What would you like to do now?”, the respondent replied: “I would like to have them, like, tendered as evidence in the Court for further examination”; the calculations were tendered by the respondent and became Exhibit 16;45 (o) in his own evidence the respondent dealt with a video recording which he had made at the time of interception; when asked by the magistrate what he would like the Court to know about it his response was: “Your Honour, I would like to tender that video recording as an exhibit …”;46 a debate then followed about the utility of what it might show, with the respondent maintaining arguments for its admission, and it became Exhibit 17;47 (p) the respondent had made some contemporaneous notes as to which he said: “I would like to present these three page statements that I made”; then after some questions by the magistrate the respondent said: “And that‟s all I‟m trying to do. I just would like to tender ...”48; when the magistrate pointed out that he would not accept written statements but rather oral evidence, the respondent replied: “So I can‟t give that – tender that as an exhibit?” 49; he was then permitted to speak about it, which he did;50 (q) the respondent had an abstract from a different case in a different Magistrates Court, and wanted to introduce it into evidence, which the magistrate resisted; however, when the magistrate asked him to move on in his presentation the respondent‟s response was: “Okay. So I cannot tender those either?”.51 [30] Those passages demonstrate, in my opinion, that the respondent had a reasonable understanding of the court procedures, but most importantly he knew that if he wished to have a document in evidence he had to put it to a witness and it had to be tendered. He knew enough about the process of putting documents into evidence, to be able to use, repeatedly, phrases such as “I would like to tender that video”52, and “I would like to have them ... tendered as evidence in the Court for further examination”.53 [31] Further, the respondent received assistance from the magistrate, during the course of evidence, in how to put contrary propositions to witnesses54, and in the formulation of questions55. [32] The learned primary judge‟s concern about the misunderstanding concerning the Police Manual has to be seen in that context. At the point at which the respondent said that he thought they would be in evidence,56 he had already demonstrated 45 AR 94-95. 46 AR 101. 47 AR 103. 48 AR 105. 49 AR 105. 50 AR 105. 51 AR 106. 52 AR 101. 53 AR 94-95. 54 AR 72 and following. 55 AR 77-78 and 79-81. 56 AR 122. -- 10 of 20 -- 11 a number of times that he had an understanding of the court process, the necessity to put documents to witnesses and then to tender them. [33] However, any disadvantage that might have been suggested in respect to the Police Manual is, in my opinion, illusory. The only part upon which he cross-examined was page 17. In his argument to this Court, that was no longer a relevant page. The respondent made an application to adduce new evidence before the District Court, but that did not include the Police Manual. Nor was the Australian Standard a document which he wished to adduce in evidence before the District Court. [34] There are additional reasons for concluding that the Police Manual issue is of no utility. [35] First the respondent applied to this Court to adduce further evidence, part of which was the Police Manual. The question of whether that application would be allowed was reserved. However, the point raised by the respondent in respect of the manual was that it demonstrated that the traffic officer‟s description of what the radar device does, when he turned the antenna off, was wrong. The traffic officer‟s evidence was: he received a clear audible Doppler tone, which suggested he was targeting the correct vehicle in front of him; he then locked in the speed, which came up as 88 kilometres per hour on his radar device; and he then turned the antenna off. He then described what happened as a result of turning the antenna off: “What happens when you turn the antenna off, sir, at that stage it locks in my patrol speed as well, so it shows the 88 and my patrol speed on the – that cannot be removed until – unless I press the antenna button or play around with it again.”57 The respondent then asked him what was the purpose for turning the antenna off, and the traffic officer responded: “It just – to display the patrol speed. ... Just brings up the patrol speed of what time I locked that car in, when I locked it in at 88, at that time what speed I was doing”.58 [36] The respondent‟s contention to this Court was that the officer‟s evidence was wrong by reference to pages 87 and 88 of the Police Manual. The point he wished to make was that the patrol speed is locked in at the same time as the target speed is locked, and pressing the lock button carries that out. That is in fact what the traffic officer said in the passage of evidence to which I have referred59, and that is in conformity with what is said in the Police Manual. [37] The second reason for concluding that the Police Manual issue is of no utility comes from the respondent‟s explanation of his case. It was made plain at trial, as it was before the learned primary judge, that there was no challenge to the accuracy or testing of the radar device, only to the manner of its operation by the officer.60 Specifically, as stated to the learned primary judge, the only issue was whether the traffic officer had measured the speed on the respondent‟s car, or a different car. 57 AR 35. 58 AR 35. 59 AR 35. 60 AR 7, 18 and 186-187 before the District Court. -- 11 of 20 -- 12 [38] Properly understood, the manner of operation, or whether the operation was in accordance with standards either in the form of the Police Manual or the Australian Standards, had ceased to be an issue. On two distinct occasions the respondent told the magistrate that it was no longer his case that the handling or management of the device was inappropriate, but rather that the police officer had targeted the wrong vehicle.61 The same thing was made clear to the learned primary judge.62 [39] That being the case, the question of whether the operation of the device was in accordance with the Police Manual or the Australian Standards is irrelevant. [40] I turn now to the concern which the learned primary judge held as to the way in which the magistrate treated the respondent. Those concerns are only directed to interchanges between the magistrate and the respondent during addresses on the second day. [41] The first concern is the repeated use of the word “no”. That occurred only on two occasions, relatively close in time.63 The first occurred when in the course of his address the respondent said that he objected to the tendering of the evidence given by Mr Mulcare, including his resume. The following exchange occurred: “DEFENDANT: I object [to] the tendering of the evidence given by Mr Mulcare, including his resume, tendered on the day of the hearing, as ----- BENCH: Well, you didn‟t object at the time. DEFENDANT: Pardon? BENCH: You didn‟t object to the resume being tendered. DEFENDANT: Your Honour, I‟m reading out my submission ----- BENCH: No, no, no, no, no, no, no, no. DEFENDANT: I wasn‟t given the opportunity. BENCH: If you had objected to the resume being tendered I would have dealt with your objection.”64 [42] The respondent had objected to the evidence of Mr Mulcare, but the objection was that the prosecutor had previously told him that no experts would be called, and therefore he was in some way disadvantaged.65 In fact there was no disadvantage given that the respondent was not contesting the accuracy or method of testing of the radar device, but merely the way it was operated.66 Further, the respondent had indicated that his intention was not to call his own expert.67 Finally, it was clear that the respondent did not know what evidence his own expert might have given contrary to that of Mr Mulcare.68 61 AR 81 and 84. 62 AR 192. 63 AR 126 and 127. 64 AR 126. 65 AR 19. 66 AR 7 and 18. 67 AR 23 and 261. 68 AR 193. -- 12 of 20 -- 13 [43] When Mr Mulcare was called the prosecutor was able to tell the magistrate, without objection by the respondent, that the respondent had said that he was not going to contest Mr Mulcare‟s expertise.69 The resume was not the subject of objection, and could not have been in light of the statement that Mr Mulcare‟s expertise was not to be the subject of challenge. Nonetheless he was cross-examined about his qualifications.70 [44] In the light of those matters the exchange between the magistrate and the respondent was not surprising. Further, there are a number of ways in which one could repeatedly use the word “no” without it being aggressive or inappropriate. It is not possible to say, just on reading the transcript, precisely how it was done. On the occasions when it happened it was because the respondent persisted, in the first instance, in advancing an objection to Mr Mulcare‟s evidence or resume, or, in the second case, referring to a document which had not been tendered, namely an amended statement by the traffic officer. I am not satisfied that there was anything inappropriate in those exchanges. [45] The second aspect that concerned the learned primary judge was the use of expressions by the magistrate, such as “save it for the appeal”. That phrase or phrases like it were used a number of times, but on each occasion it was because of the respondent‟s persistence in complaining about a matter that the magistrate had already ruled upon, such as the late disclosure of documents71, the late introduction of the evidence of Mr Mulcare and his resume72, and his contention that he had been told he could not use his audio visual recording of what happened at the interception site.73 In the last example, the respondent‟s address seemed to ignore the very fact that he had tendered that audio visual recording as Exhibit 17. [46] In the circumstances each reference was a further complaint about matters that had been ruled upon by the magistrate. Not surprisingly the magistrate took the view that if such a point had to be agitated the respondent should “save it for the appeal”. The magistrate had, the previous day, told the respondent that what he had to do in address is: “Address me on the evidence that has come before the Court”.74 [47] On the second occasion he used the “save it for the appeal” form of words75, it was where the respondent was complaining about the late notice of intention to call Mr Mulcare, ending with the proposition that: “It can make me more guilty because his words carry a heavy weight”. It was that proposition which caused the magistrate to respond that he was talking nonsense, and then say: “And I want you to address me on the evidence yesterday and you can save all the rest for an appeal”. [48] That was not the last time the magistrate told the respondent that he should concentrate on the evidence. When he did so again76 it was in an exchange where the magistrate identified the real issue as being the conflict of evidence between the police officer and the respondent, followed by this exchange: 69 AR 86. 70 AR 91-92. 71 AR 127, 133 and 135. 72 AR 129. 73 AR 130. 74 AR 122. 75 AR 129. 76 AR 131. -- 13 of 20 -- 14 “BENCH: Right. Now, that‟s the issue, isn‟t it? DEFENDANT: That‟s correct. BENCH: Not the resume of Mr Mulcare, who‟s been doing this sort of work for the last 50 years. Not that. You can save that for the appeal. DEFENDANT: Okay. BENCH: If you think you‟ve had an unfair trial and you‟re convicted, you can save it for the appeal, in spite of that. DEFENDANT: I understand. Yes. BENCH: You know very well how to conduct yourself, Mr Al Shakarji, and I regard you, as I said, as a very, very intelligent person who probably knows how to conduct himself better in Court than many a solicitor who comes here. DEFENDANT: Thank you, your Honour. BENCH: And I think you‟re just talking humbug. So talk to me about things that matter. DEFENDANT: Okay. Now, evidence given by Constable Donnelly ----- BENCH: Yes, now you‟re talking.”77 [49] What then followed was that the respondent did in fact concentrate on the evidence. [50] The respondent then returned at one point of his address, shortly before it ended, to his complaints about non-disclosure. He told the magistrate he wanted to mention the authorities on the issue on non-disclosure and there then followed this exchange: “DEFENDANT: I ask your Honour to find that the defendant did not have a fair chance and will deny ----- BENCH: No, no. The issue as to whether you have a fair trial is not one to be determined by me. DEFENDANT: Okay, your Honour. BENCH: You save it for the appeal.” [51] The matters referred to above demonstrate that the use of the “save it for the appeal” comments was in the face of the respondent‟s persistence in asserting that there had been late disclosure of material, and in particular late disclosure of the intention to call Mr Mulcare and tender his resume. They were all matters ruled upon by the magistrate during the course of the hearing or not objected to (in the case of the resume). For the reasons I have outlined above, there was no disadvantage to the respondent in the way in which those rulings were given. In those circumstances 77 AR 130-131. -- 14 of 20 -- 15 I do not accept that the magistrate‟s use of that phrase on a number of occasions was inappropriate or, by itself or together with the references to the respondent talking nonsense or humbug, gave the appearance of partiality. It may be correct to describe the magistrate‟s approach as brusque or even terse, but in my respectful opinion they do not bear the character described by the learned primary judge. [52] The Magistrate‟s treatment of the respondent has to be seen in context,78 and in terms of whether that conduct led to a substantial wrong or a miscarriage of justice.79 Some guidance can be drawn from the decision of this Court in Barmettler v Greer & Timms.80 That was an appeal from a District Court trial (before a jury) where the Barmettlers sought to recover damages against a firm of solicitors. The trial judge was often impatient and occasionally rude to the Barmettlers,81 including reproving them for a lack of correct or comprehensible English in their pleading,82 when English was not their first language. Further, the trial judge frequently gave way to anger, including sending Mrs Barmettler for a period of time in the cells for contempt of court just before she was due to give evidence before the jury.83 The judge responded to Mrs Barmettler, who was dealing with one item of the claim, by saying that if she told the judge one more time about that claim the judge was “going to walk out that door”.84 The trial judge‟s impatience included an accusation (this time in the presence of the jury) that Mrs Barmettler was “not telling the whole truth when you give that sort of answer” and was “just playing games with me”, warning her that she should not “play that game with me”.85 [53] The conclusion of the Court was that the Barmettlers had been treated with “unnecessary severity and ill temper, in the course of presenting what was in fact an under prepared and hopeless case”.86 In addition, the Barmettlers “were at times unfairly treated by the judge and, without apparent justification, threatened with perjury and contempt charges. Mrs Barmettler was actually sent to the cells for a time.”87 The Court held that the judge‟s “overbearing conduct” fell below the standard of judicial conduct expected of judges in the courtroom.88 [54] Notwithstanding that conduct and those findings, the Court had this to say: “The irregularities in the conduct of this trial would ordinarily necessitate a new trial, but this Court gave Mrs Barmettler every opportunity to show a possibly viable cause of action on a properly conducted trial. None was shown. The transcript does not suggest that the judge‟s conduct interfered with the Barmettlers‟ robust pursuit of their barren claim against the respondent. The majority of the concerning exchanges occurred in the absence of the jury. 78 As to that, see paragraphs [41]-[51] above. 79 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39 per Mason CJ and Deane, Toohey and McHugh JJ. 80 Barmettler & Anor v Greer & Timms [2007] QCA 170. 81 Barmettler at [21]. 82 Barmettler at [21]. 83 Barmettler at [27]-[28]. 84 Barmettler at [32]. 85 Barmettler at [34]. 86 Barmettler at [40]. 87 Barmettler at [40]. 88 Barmettler at [40]. -- 15 of 20 -- 16 The judge restored some balance in her jury directions set out above. It follows that despite the unfortunate conduct of the trial, the Barmettlers have been unable to establish that a substantial wrong or miscarriage of justice was thereby occasioned.”89 In those circumstances the appeal should be dismissed …”90 [55] In this case, for the reasons outlined above, I do not consider that the Magistrate‟s conduct had the effect of denying the respondent a proper hearing, or that a substantial wrong or miscarriage of justice has been occasioned. Conclusion and disposition [56] For the reasons given in paragraphs [11] to [24] above, the learned District Court judge did not conduct the appeal in the way in which he was obliged to, by making his own assessment of the evidence and forming his own conclusions upon the issue of the respondent‟s guilt. [57] Further, in my respectful opinion when the magistrate‟s comments are seen in their proper context, the learned District Court judge‟s assessment of them cannot be sustained. Consequently the basis upon which the appeal was actually approached was attended by error. [58] I would grant leave to appeal and allow the appeal. The applicant seeks an order remitting the matter to the District Court for determination according to Part 9 Division 1 of the Justices Act. I would make that order. [59] It is not necessary to decide the respondent‟s application to adduce new evidence. [60] I agree with the orders proposed by North J. [61] MARGARET WILSON J: I agree with Morrison JA and North J that leave to appeal should be granted and the appeal should be allowed. [62] The respondent to the present application, Mr Al Shakarji, was charged with speeding. At his trial in a Magistrates Court, a traffic officer gave evidence that he directed a radar device at a vehicle that had sped past him, and measured a speed of 88 kph in a 60 kph zone. The traffic officer said that the vehicle which sped past him was a Toyota motor vehicle driven by Mr Al Shakarji. [63] The issue at trial was whether the prosecution had proved beyond reasonable doubt that the speed recorded was that of Mr Al Shakarji‟s vehicle. Mr Al Shakarji asserted that the traffic officer targeted the wrong car. The magistrate preferred the traffic officer‟s evidence to that of Mr Al Shakarji, and rejected Mr Al Shakarji‟s evidence where it conflicted with that of the traffic officer. His Honour was satisfied beyond reasonable doubt that the defendant exceeded the speed limit as charged. [64] Mr Al Shakarji appealed to the District Court on the following grounds – a) inadequate disclosure by the prosecution/prosecutorial misconduct; b) error in not allowing the applicant to tender certain documents; 89 Citing Calin v Greater Union Organisation Pty Ltd (1992) 173 CLR 33 at 39. 90 Barmettler at [42]. -- 16 of 20 -- 17 c) error in not allowing the applicant to read his written submissions into the record; d) error in not allowing the applicant to tender his written submissions as evidence; e) error in not requiring the prosecution to make submissions and not instructing the prosecution to hand a copy of their written submissions to the applicant; f) that the magistrate‟s saying „Save it for the appeal‟ numerous times during the applicant‟s submissions indicated that he had already decided the issue of the applicant‟s guilt; g) error in imposing a fine that was excessive in all the circumstances and in making the applicant pay the cost of a witness. [65] The appeal to the District Court was pursuant to s 222 of the Justices Act (Qld) 1886. Section 223 of that Act provides for a re-hearing on the evidence given at trial, and any new evidence adduced by leave – in other words, a re-hearing in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. To succeed on such an appeal, an appellant must establish some legal, factual or discretionary error.91 [66] The District Court judge observed that the magistrate had rejected Mr Al Shakarji‟s evidence where it conflicted with that of the traffic officer, and the strong terms in which he had done so. The judge continued – “Normally such a rejection of evidence would lead to an appeal such as this being promptly dismissed. There are, however, a number of factors which are of concern to me.” His Honour proceeded to consider Mr Al Shakarji‟s criticisms of the magistrate‟s conduct of the trial. He allowed the appeal, essentially on the ground that Mr Al Shakarji had been denied a fair trial. [67] The prosecution seeks leave to appeal against the District Court judge‟s decision on the grounds that his Honour erred – (a) in not conducting the appeal as a rehearing and making his own assessment of the evidence and forming his own conclusions upon the issue of the applicant‟s guilt; (b) in not making an order according to s 225 of the Justices Act. [68] I agree with Morrison JA and North J that the District Court judge erred in his conclusion that the magistrate had denied Mr Al Shakarji a fair trial. In other words, his Honour erred in setting aside the decision of the magistrate on account of legal error. 91 Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]; Osgood v Queensland Police Service [2010] QCA 242 at [20]; Tierney v Commissioner of Police [2011] QCA 327 at [26]; R v Ruthven [2013] QCA 142. -- 17 of 20 -- 18 [69] In the Magistrates Court and the District Court, and again in this court, Mr Al Shakarji conducted this proceeding without legal representation. Even after making generous allowance for that factor, I have considerable difficulty in interpreting his grounds of appeal as including error in the factual conclusion that it was his vehicle that exceeded the speed limit. Nevertheless, it seems that the District Court judge regarded that as a live issue, but one which he did not have to determine in light of his conclusion that the trial had not been a fair one. [70] In all the circumstances, the District Court judge ought to have determined whether the magistrate erred in concluding that it was Mr Al Shakarji‟s vehicle that exceeded the speed limit. It was a conclusion based on the magistrate‟s assessment of the credibility of witnesses. Thus, in determining whether the magistrate erred, the District Court judge should have followed the prescription of the High Court in Fox v Percy.92 His Honour should have conducted a “real review” of the evidence, according respect to the decision of the magistrate and bearing in mind any advantage the magistrate had in seeing and hearing the witnesses give their evidence. He should have weighed the conflicting evidence and drawn his own inferences. If, after doing that, his Honour concluded that an error had been shown, then he should have exercised the District Court‟s powers on appeal.93 [71] I agree with the orders proposed by North J. [72] NORTH J: I have had the benefit of reading the reasons of Morrison JA and substantially agree with his Honour but wish to make some brief observations. His Honour‟s comprehensive summary of the issues, the evidence and the proceedings at the trial before the Magistrate and at the appeal in the District Court make it unnecessary for me to duplicate that. [73] The appeal to the District Court from the conviction in the Magistrates Court lay under s 222 of the Justices Act 1886 and s 223 of that Act provides that such appeal is “by way of rehearing” on the evidence given below with power in the District Court to, if there are “special grounds” shown, give leave to adduce fresh, additional or substituted evidence. Complementary to those provisions s 225 gives the District Court the range of powers to confirm, set aside or vary an order appealed from as the court considers just that are commonly found in statutes conferring a right to an appeal by rehearing. [74] The characteristics of an appeal by rehearing in this context were explained by Muir JA in Teelow v Commissioner of Police94 and it is unnecessary to repeat them nor refer to any of the many cases where these familiar and well established principles have been stated and applied. [75] By contrast to the appeal from the Magistrates Court to the District Court, 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 the leave of this court95 and is not an appeal by way of rehearing96 but is a strict appeal where an error of 92 (2003) 214 CLR 118 at 124-129. 93 Rowe v Kemper [2009] 1 Qd R 247 at 253; Tierney v Commissioner of Police at [53]-[54]. 94 [2009] QCA 84 at [2] – [4]. See also Gobus v Queensland Police Service [2013] QCA 172 at [14] – [15]. 95 Section 118(1)(b) and s 118(3) District Court of Queensland Act 1967. 96 Contrast s 118(8) District Court of Queensland Act 1967 and appeals from the District Court in its original jurisdiction. -- 18 of 20 -- 19 law must be demonstrated.97 The requirement of leave is intended to limit the extent to which litigants, who have already received two full hearings in courts can make further claims on courts.98 At such a hearing, as Morrison JA has noted,99 usually leave will be granted to correct a substantial injustice to an applicant and where there is a reasonable argument that there is an error to be corrected. [76] As Morrison JA has noted the District Court judge did not perform the task of conducting the rehearing required of him by s 223 of the Justices Act. But that may not have been required if the learned District Court judge had been correct in his assessment that the respondent in this court, the appellant before him, had not had a fair trial because of the conduct of the magistrate. The denial of a fair trial is an “error of law” in this context and one occasioning a fundamental miscarriage of justice. As his Honour had not seen the witnesses when they gave evidence at the trial a rehearing would have been inadequate. It would not have enabled him to make findings of fact and credit, that is perform the task of the primary tribunal below. A new trial would have been necessary, consequently the course adopted by his Honour of setting aside the order made by the magistrate and remitting the matter back for a trial would have been appropriate.100 [77] “In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party‟s claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly."101 I agree with Morrison JA, for the reasons his Honour has given, that the magistrate gave the respondent a reasonable opportunity to present his case. As Morrison JA has pointed out it is plain that the respondent had some experience in proceedings before a court and that he was well able to conduct himself in court in the examination of witnesses and the tendering of documents into evidence. I am not persuaded that there was a miscarriage of justice because the respondent failed to put into evidence either the Australian standard nor the police manual. It was not part of the magistrate‟s obligation to prompt the respondent into putting them into evidence in the circumstances where their relevance to the matters in question had not been made plain by the conduct of the parties or the issues that had been identified by the parties. [78] The magistrate below used words or phrases in what may have been uttered in an intemperate way. Even assuming the manner of delivery was brusque or rude I am not persuaded, for the reasons given by Morrison JA, that there was a miscarriage of justice on the grounds suggested by the judge. In the circumstances the learned District Court judge was obliged to conduct a rehearing involving a review of the evidence before he could allow the appeal and set the conviction aside. The failure to do so amounts to an error or law requiring the intervention of this court and a grant of leave to appeal.102 The applicant sought an order that if leave were granted and the order of the learned District Court judge was set aside, the matter be 97 Gobus v Queensland Police Service [2013] QCA 172 per Fraser JA at [3] – [5]. 98 Smith v Woodward [2009] QCA 119 at [16]. 99 See [4] above citing Pickering v McArthur [2005] QCA 294 at [3]; see also Teelow v Commissioner of Police [2009] QCA 84 at [17]. 100 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39. On any view an unfair trial occasioned by misconduct of the presiding judicial officer is such a miscarriage of justice requiring appellate intervention, cf Barmettler & Anor v Greer & Timms [2007] QCA 170 at [40] – [42]. 101 Gamester Pty Ltd v Lockhart (1993) 67 ALJR 547 at 549 per Brennan, Deane and Dawson JJ. 102 Rowe v Kemper [2009] 1 Qd R 247 at [5]. -- 19 of 20 -- 20 remitted to the District Court for determination. In that event the applicant did not seek an order for costs against the respondent. [79] The orders I would propose are: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders of the District Court allowing the appeal and concerning costs of the appeal; 4. Remit the matter, including the question of the costs of the first appeal, to the District Court for determination pursuant to Part 9 Division 1 of the Justices Act 1886. -- 20 of 20 --