Powell v Chief Executive Officer of Australian Customs Service

[2016] QCA 313

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Appeal by way of rehearing
4. › Distinction between inference from uncontested facts and acceptance of direct evidence
5. › Whether appellate court must identify error in primary judge's reasoning before substituting own finding
6. › Justices Act 1886 (Qld), s 222, s 223
1. Appeal
2. › General principles
3. › Interference with judge's findings of fact
4. › Functions of appellate court
5. › Where witness not cross-examined
6. › Effect of absence of cross-examination on weight of evidence
1. Appeal
2. › Leave to appeal
3. › Appeal from District Court in appellate jurisdiction
4. › Whether appeal confined to errors of law
5. › District Court of Queensland Act 1967 (Qld), ss 118(2), 118(3), 118(8), 119

Quick Take

An appellate court conducting an appeal by way of rehearing must correctly characterise whether a primary judge's factual finding was based on acceptance of direct evidence or on inference from uncontested facts, as the standard of appellate review differs materially. Where a finding is based on acceptance of direct evidence (even affidavit evidence without cross-examination), the appellate court must identify error in the primary judge's reasoning before substituting its own finding; it cannot simply draw a different inference as if the finding were one of inference alone. The question whether appeals under s 118(3) of the District Court of Queensland Act 1967 (Qld) are confined to errors of law remains open.