Batty v Queensland Police Service

[2019] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:

Batty v Queensland Police Service [2019] QDC 51

PARTIES:

BATTY, Joseph George
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

DC 1700 of 2018

DIVISION:

District Court at Brisbane

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

18 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2019

JUDGE:

LOURY QC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION ON A GUILTY PLEA – where the appellant pleaded guilty in the Magistrates Court to driving under the influence of alcohol and failing to provide a specimen of breathe for analysis – where appellant applied to re-open sentence and set aside conviction for driving under the influence of liquor – whether the appellant has a right of appeal against order of Magistrate refusing application to re-open

Justices Act 1886 (Qld) s 147A, s 222

Ajax v Bird [2010] QCA 2, cited
Dore & Ors v Penny [2005] QCA 150, cited
Long v Spivey [2004] QCA 142, cited
Maxwell v The Queen (1996) 184 CLR 501, cited
Phillips v Spencer & Anor [2005] QCA 317, cited
Schneider v Curtis [1967] Qd R 300, cited
Smith v Ash [2011] 2 Qd R 175, cited

COUNSEL/
 SOLICITORS:

A Macadam for the Appellant

H R Mangione (Director of Public Prosecutions (Queensland)) for the Respondent

1. The appellant pleaded guilty to offences of driving whilst under the influence of alcohol and failing to provide a specimen of breath for analysis on 29 October 2014 in the Magistrates Court at Caboolture. The appellant was fined $900. His licence was disqualified for twelve months. 

1. On 16 November 2017, the appellant filed an application under section 147A of the Justices Act 1886 (Qld) to reopen the sentence proceedings on the ground that “the learned Magistrate should not have accepted my guilty plea in respect of charge 1, drive a motor vehicle under the influence of liquor because it was or should have appeared to the Magistrate that I did not understand the nature of the proceedings. Further, when the details of the alleged indicia of the UIL charge were read out to the Magistrate by the Police Prosecutor, the Magistrate should have realised that the alleged facts (a strong smell of alcohol, but nothing more) were inconsistent with my guilty plea, and the Magistrate should have refused to accept my guilty plea on the UIL charge and entered a not guilty plea and set the UIL charge for hearing.”

1. On 23 March 2018, that application was heard. The learned Magistrate (a different one to the Magistrate who convicted the appellant) dismissed the application. 

1. On 10 May 2018, the appellant filed a notice of appeal pursuant to section 222 of the Justices Act 1886 (Qld). His grounds of appeal are:

1. The learned Magistrate wrongly interpreted section 147A of the Justices Act 1886 (Qld);

2. The learned Magistrate wrongly applied section 147A to the facts of the re-opening application; and

3.          The…