C'Ward v Madsen - [2010] QDC 160

[2010] QDC 160

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DURWARD SC
No 279 of 2009

MARLOW DOUGLAS C'WARD	Appellant
and
TIMOTHY KENT MADSEN	Respondent

TOWNSVILLE
..DATE 16/03/2010
JUDGMENT
HIS HONOUR: The appellant, Marlow Douglas C'Ward, has

appealed to this Court pursuant to section 222 of the Justices

Act 1886.

He was convicted and sentenced on 11th November 2009 on a plea

of guilty to a charge of driving a motor vehicle without a	10
driver's licence (demerit points) on 22nd April 2009 made pursuant to section 78(1) and (3)(b) of the Transport Operations (Road Use Management) Act 1995.
The charge is one that involves driving whilst disqualified	20
from holding or obtaining a driver's licence because of the allocation of demerit points in a specified period of time. The appellant was fined $75 and disqualified from holding or
obtaining a driver's licence for a period of six months. The
period of disqualification was a mandatory period in respect	30
of the offence.
In the notice of appeal filed on the 11th of November 2009 the
grounds of appeal were stated to be:
40

(1) That the learned Magistrate erred in failing to
grant the stay application;
(2) That the learned Magistrate erred in his

interpretation of "same offence" when considering if the 50
defendant was twice punished in relation to a high speed
demerits point suspension.

2 JUDGMENT 60

The relevance of the stay application and the reference to

"same offence", a reference to section 16 of the Criminal Code

(Qld), will become apparent further in these reasons.

When the hearing commenced yesterday I raised the issue of the

jurisdiction of this Court to hear the appeal. Section	10
222(2)(c) provides that, by way of exception to the principal
appeal rights in subsection (1), "If a defendant pleads guilty
or admits the truth of a complaint a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate."	20
The plea of guilty was a regularly entered plea. Hence the
Court's jurisdiction is limited in accordance with section 222(2)(c). That limitation is a direct consequence of the section. Judge Ford, in Hughes v. Mitchell [2008] QDC 193 at	30
[20] said this about the history of section 222 of the Justices Act:

"When the history of section 222 of the Justices Act is

considered, it becomes clear that after the 40
implementation of section 222(2)(c) the legislature
sought to limit the grounds of appeal to the District
Court. Once a defendant pleaded guilty there were two
courses open. The defendant could apply to re-open the
case under section 147A. If it was re-opened and a 50
conviction followed a not guilty plea then the appeal was
available under section 222 of the Justices Act.
However, if there was a refusal to re-open a conviction

3 JUDGMENT 60

following a guilty plea, then the defendant was required

to apply for judicial review of that decision under the
provisions…

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.

Continue reading C'Ward v Madsen

Details

AGLC: C'Ward v Madsen [2010] QDC 160
Case: [2010] QDC 160
Decision Date: 16/03/2010

CaseChat Overview and Summary

The appeal in C'Ward v Madsen concerns the conviction and sentence of Marlow Douglas C'Ward, who pleaded guilty to driving a motor vehicle without a licence while disqualified due to accumulated demerit points. The respondent, Timothy Kent Madsen, is the individual who brought the charge against C'Ward. C'Ward appealed the decision of the Magistrates Court, arguing that the Magistrate erred in not staying the charge and in interpreting "same offence" as it relates to double punishment under section 16 of the Criminal Code. The appeal was heard in the District Court of Queensland under the appellate jurisdiction, with Judge Durward presiding.

The central legal issues in this case were the jurisdiction of the District Court to hear the appeal and whether the charge constituted double punishment in violation of section 16 of the Criminal Code. The court noted that, following C'Ward's plea of guilty, the appeal was limited to whether the punishment was excessive or inadequate, as per section 222(2)(c) of the Justices Act. The court found that C'Ward's grounds of appeal, which contested the conviction, were not permissible given the plea of guilty. Despite consent from the respondent to amend the grounds of appeal to focus on the sentence, the court concluded that it lacked jurisdiction to hear the appeal on any ground other than the excessiveness of the punishment.

In its judgment, the court explained that the jurisdictional limitation imposed by section 222(2)(c) of the Justices Act meant that the court could not re-evaluate the conviction or the legal interpretation of double jeopardy as proposed by C'Ward. The court also noted that the double jeopardy argument, which centred on C'Ward's previous speeding offences and their impact on his licence suspension, did not align with the legal understanding of "punishable acts" under section 16 of the Criminal Code. Consequently, the court dismissed the appeal as incompetent, finding no basis for jurisdiction other than to address the punishment's excessiveness, which was not successfully argued.

The final orders of the court were to dismiss the appeal and to make no order as to costs, considering the respondent's preparedness to consent to the amendment and the jurisdictional issue's decisiveness.

Orders