Background
On 20 May 2018, Andrew John Millar was involved in a confrontation with a complainant and her mother in Newstead, Queensland. He was charged with unlawful assault (an initial charge of assault occasioning bodily harm was later amended). After a trial in July and September 2019, Millar was convicted in the Magistrates Court on 6 December 2019 and sentenced on 16 January 2022 to a $1,000 fine and $500 compensation to the complainant, with no conviction recorded. His appeal to the District Court was dismissed on 2 December 2021, and his subsequent application for leave to appeal to the Court of Appeal was heard on 8 July 2024 and refused on 25 February 2025.
A central grievance throughout the proceedings concerned photographic disclosure. The prosecution had disclosed that Officer Palmer took one photograph of the complainant’s shoulder injury and that the complainant had provided three photographs she had taken on the day. It later emerged that Officer Palmer had received five photographs from the complainant, not three. Officer Palmer explained by affidavit that the additional two were close duplicates of no particular evidentiary value and were overlooked rather than deliberately withheld. He also affirmed in a second affidavit that he personally took only one photograph and that police records revealed no others.
On 12 March 2026 — more than a year after the Court of Appeal’s final refusal of leave — Millar filed a further application seeking to “reopen” his appeal. He relied on a Queensland Police Service Court Brief document, available to him since before his original Magistrates Court trial, which referred to police taking “photographs” (plural) on the day of the incident. Millar argued this demonstrated Officer Palmer had committed perjury and that non-disclosure of additional photographs had caused a miscarriage of justice in the Court of Appeal proceedings.
The Court’s Holding
The Court of Appeal (Bradley JA, Doyle JA, and Gotterson AJA) unanimously refused the application. Doyle JA, with whom the others agreed, held that the Court lacked jurisdiction to entertain a second application for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) where the first application had been refused on its merits by a three-judge panel and the resulting order had been perfected. Allowing repeated applications for leave would frustrate the evident purpose of s 118(3) as a constraint on appeals and produce the anomalous result that litigants who required leave would have more bites at the cherry than those with an unqualified right of appeal. The recent legislative creation of a limited statutory pathway for second appeals in the Criminal Code — which did not apply to Millar’s case — reinforced that no such right existed at common law under the general leave provision.
The Court also held that, even if jurisdiction existed, leave to pursue the reopening should be refused in any event. Millar delayed over a year before filing without adequate explanation. He advanced no properly admissible fresh evidence. The Court Brief document on which he principally relied had been in his possession since before his original trial, yet he never cross-examined Officer Palmer on it in either the Magistrates Court or the District Court. The plurality notation of “photographs” in that document was equivocal and possibly erroneous, and Officer Palmer’s evidence that he took only one photograph remained uncontradicted. Most importantly, the photographs were of peripheral relevance: the conviction rested on direct evidence of the assault and was not dependent on what any photograph showed. No arguable basis for disturbing the conviction was established.
The Court ordered that the application be refused and that Millar pay the respondent’s costs, noting that the events were now some eight years old and that Millar had already been heard across three courts.
Key Takeaways
- Under s 118(3) of the District Court of Queensland Act 1967, a second application for leave to appeal to the Queensland Court of Appeal is not available once a first application has been refused on its merits by a constituted panel and the order perfected — the unsuccessful applicant is properly regarded as aggrieved by the Court of Appeal’s refusal, not by the District Court order, and there is no further right of appeal from that refusal.
- The statutory creation of an express limited pathway for second criminal appeals in Chapter 67 Division 3 of the Criminal Code implies that no such right exists under the general leave-to-appeal provision, lending further support to a restrictive construction of s 118(3).
- Even where reopening jurisdiction might arguably exist, courts will refuse to exercise it absent fresh and admissible evidence, adequate explanation for delay, and demonstrated materiality of the new material to the outcome of the original proceedings.
- A document that was available to a party before trial and was never used to cross-examine witnesses cannot later be characterised as newly discovered evidence capable of reopening concluded appellate proceedings.
Why It Matters
This decision clarifies an unsettled question in Queensland appellate criminal procedure: where an application for leave to appeal to the Court of Appeal is refused on its merits by a full panel, that refusal is final and cannot be circumvented by filing a fresh application dressed as a motion to “reopen.” The judgment aligns Queensland with the approach taken in Western Australia (Matta v The Queen), South Australia (R v Parenzee), and Victoria (Visser v The King) and gives definitive content to the finality principle in the context of leave requirements, resolving questions that had been left open in earlier Queensland decisions such as R v Gopurenko and Storry v Commissioner of Police.
For practitioners, the case is a reminder that disclosure complaints — however sincerely held — must be pressed at trial and on appeal with the evidence then available. Belated reliance on documents long held by a party, without prior cross-examination of the relevant witnesses, will not satisfy the threshold for reopening concluded proceedings, particularly where the allegedly suppressed material is shown to be peripheral to the basis of the conviction.