Austin Summerell v David John Lawler - [2014] ACTSC 246

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) Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v Meyboom [2012] 256 FLR 450 Mayen v Ryan [2013] ACTSC 172 Gallo v Dawson [1990] 64 ALJR 458 Ostrowski v Palmer [2004] 218 CLR 493
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 246
Decision Date: 8 September 2014

CaseChat Overview and Summary

In the matter of Austin Summerell v David John Lawler, the appellant sought leave to appeal out of time from his conviction and sentence following a plea of guilty to driving while disqualified and breaching a suspended sentence order. The case was heard in the Supreme Court of the Australian Capital Territory, which was asked to consider whether the appellant could be granted leave to appeal out of time and if the magistrate's court had properly accepted the appellant's plea of guilty.

The central legal issue was whether the appellant could be granted leave to appeal out of time, given the delay in lodging the appeal, and whether the magistrate's court had properly accepted the plea of guilty. The appellant argued that the magistrate had not accepted his unequivocal plea of guilty, and therefore, no proper hearing had been conducted. The appellant also contended that the magistrate had failed to consider his previous record of traffic offenses and had not imposed an adequate sentence.

The court found that the magistrate had not properly accepted the appellant's plea of guilty as the appellant had not withdrawn his plea of not guilty, and therefore, no proper hearing had been conducted. The court also found that the magistrate had failed to consider the appellant's previous record of traffic offenses and had not imposed an adequate sentence. The court held that the appellant's explanation for the delay in lodging the appeal was sufficient to warrant the grant of leave to appeal out of time. The court further held that the rule setting the time period in which to appeal should not create an injustice.

Accordingly, the court granted the appellant leave to appeal out of time from his conviction and against the conviction for the charge of being a repeat offender driving while disqualified and the action in breaching the suspended sentence order under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The court directed that a Notice of Appeal be filed within seven days and ordered that the matter be remitted to the Magistrates Court to be dealt with according to the law.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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