Austin Summerell v David John Lawler
[2014] ACTSC 246
•8 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Austin Summerell v David John Lawler |
Citation: | [2014] ACTSC 246 |
Hearing Date(s): | 8 September 2014 |
DecisionDate: | 8 September 2014 |
Before: | Refshauge J |
Decision: | 1. His Honour grants leave for Austin Summerell to appeal out of time from his conviction. 2. His Honour grants leave for Austin Summerell to appeal out of time against the conviction for the charge of being a repeat offender driving whilst disqualified and the action in breaching the suspended sentence order under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). 3. His Honour directs that a Notice of Appeal be filed within seven days. 4. His Honour order that the matter be remitted to the Magistrates Court to be dealt with according to the law. |
Category: | Principal Judgment |
Catchwords: | APPEAL – GENERAL PRINCIPLES – In Genreal and Right of Appeal – Application for leave to appeal out of time – Explanation for delay should be stated – Rule setting time period in which to appeal should not create an injustice – Application for leave to appeal out of time granted CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – Magistrate did not accept unequivocal plea of guilty – Appellant did not withdraw plea of not guilty – No proper hearing conducted – Appeal allowed – Matter remitted back to the Magistrates Court |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | R v Meyboom [2012] 256 FLR 450 |
Parties: | Austin Summerell ( Appellant) David John Lawler ( Respondent) |
Representation: | Counsel Mr M Toole ( Appellant) Mr M Reardon ( Respondent) |
| Solicitors Legal Aid (ACT) ( Appellant) Dirtector of Public Prosecutions (ACT) ( Respondent) | |
File Number(s): | SCA 72 of 2014 |
Refshauge J:
On 18 October 2011, the applicant, Austin David Summerell, was convicted of a traffic offence and disqualified from driving a motor vehicle for a period of twelve months. On 10 October 2012, police conducted a traffic stop and found Mr Summerell driving on that occasion. He produced a New South Wales driver’s licence which was then current but, of course, that did not authorise him to drive contrary to the disqualification imposed by the Magistrates Court.
He appeared in court on 26 November 2013 and entered a plea of not guilty. The basis of the plea was that he had made an honest and reasonable mistake about facts which would constitute elements of that offence. The learned magistrate engaged in some discussion with Mr Summerell, coming to the view that, at the end of the day, he would not be able to make out the plea of not guilty on the basis of an honest and reasonable mistake. Her Honour relied on the High Court decision of Ostrowski v Palmer [2004] 218 CLR 493. She then proceeded to convict Mr Summerell and sentence him, making a good behavior order for 12 months. This had the effect of automatically disqualifying him from obtaining or holding a drivers license for a full two years.
Mr Summerell has appealed against that conviction. An appeal to this Court against such a conviction has to be commenced within twenty-eight days of the date of conviction. The application for leave to appeal out of time was filed on 25 August 2014, well outside the time. I have set out, in cases such as R v Meyboom [2012] 256 FLR 450 and Mayen v Ryan [2013] ACTSC 172, the principles surrounding applications for leave to appeal out of time. In brief terms, it requires an acceptable explanation for delay, an explanation of what action was taken by the applicant after the conviction, any prejudice to the respondent, although the mere absence of prejudice is not enough, and the merits of the application are to be taken into account.
I noted that, as McHugh J said in Gallo v Dawson [1990] 64 ALJR 458 at 459, that the object or rules in relation to rules fixing time for doing acts may be described as follows by his Honour:
The object of the rule is to ensure that those rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties.
In this case it is accepted by the prosecution that the learned Magistrate did not accept an unequivocal plea of guilty and did not proceed on evidence. In fact, reading the transcript it is difficult to see whether her Honour had a statement of facts at all which, if tendered by consent, could of course constitute the evidence on which her Honour could proceed. There is some suggestion that, in discussion, Mr Summerell admitted to each of the elements of the offence but it seems to me that at no stage did he withdraw his plea of not guilty and that a proper hearing, according to law, was not conducted. That is accepted by the respondent.
So far as the explanation for delay is concerned, I note that, in the affidavit in support of the application, it is asserted that Mr Summerell was not aware of his right to appeal against the conviction. I can understand that Mr Summerell, who was not represented by a lawyer at the time that her Honour proceeded, may not have been fully aware of the rights to appeal, although in the circumstances it seems to me it is not a very satisfactory explanation for the delay. Some explanation as to why he now comes before the Court seeking leave would have been preferable.
Nevertheless, following what McHugh J said in Gallo v Dawson, it is clear that, as conceded, there was a fundamental error of process in the Magistrates Court which means justice was not done between the parties. There are strong grounds for saying that the leave should be granted. My only concern was that if the same result was inevitable, namely that Mr Summerell would inevitably be convicted, then leave should not be granted for the conviction appeal. To that end, I note that in the alternative an appeal against sentence was also foreshadowed.
Given that Mr Summerell was granted a New South Wales licence again, as is asserted before me, it seems to me that he may well have a defence on the basis of a mistake of fact, notwithstanding what was said in Ostrowski v Palmer. I do not make an ultimate finding on that. It is simply arguable and will depend upon the precise circumstances and facts as may be alleged.
I note further that her Honour indicated that, in her view, the circumstances as described by Mr Summerell were such as to evoke her sympathy for he clearly, on her view, was not driving continuously in disregard of the disqualification but had certainly – and this does not seem to be contested – made inquiries and had taken steps in relation to becoming relicenced and entitled to drive in the Territory.
In those circumstances there may well be extenuating circumstances under which the offence was committed, that notwithstanding his prior record and the suspended sentence, which even to her Honour seemed a little excessive for the earlier offence, would mean that a disposition under s 17 of the Crimes (Sentencing) Act 2005 (ACT) might have been available. That, in any event, is not before me and is not a matter on which I need to proceed nor on which I need to decide.
Accordingly, I will grant leave for Mr Summerell to appeal out of time from his conviction. I will also give leave to appeal against the conviction for the charge of being a repeat offender driving whilst disqualified and the action in breaching the suspended sentence order under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).
Having granted that leave, I direct that a Notice of Appeal be filed within seven days, and with the consent of the respondent I will proceed to hear the appeal on the basis of the facts as I indicated them before.
I will remit the matter to the Magistrates Court to be dealt with according to law.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: |