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

1

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

1

"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

1

to apply for judicial review of that decision under the
provisions of Part 5 of the Judicial Review Act. That
Act defined the limited basis upon which the hearing
could proceed. It certainly does not permit a re-hearing

on the merits. That was always the position when section	10
147A was involved. Section 222(2)(c) limited the grounds
of appeal where a defendant pleaded guilty or otherwise
admitted the truth of the allegations. It certainly excluded a right to appeal on the merits following a conviction based upon a plea of guilty. If there has	20
been a miscarriage of justice in those circumstances, the
principles in Meissner v. The Queen [[1995] 184 CLR 132]
would apply. If there was a breach of natural justice, for example, the provisions of section 43 and 47 of the Judicial Review Act 1991 may assist. In the present case	30
the District Court has no jurisdiction to entertain an
appeal from a conviction following a plea of guilty. In view of the lack of jurisdiction it has been unnecessary to determine whether there has been a miscarriage of
justice."	40

Those observations are not binding upon me but nevertheless
demonstrate the inherent difficulty that the statutory
limitation, imposed by section 222(2)(c), might have in

certain circumstances. 50

Section 222(2)(c) is a recent formulation of the same section which was previously subsection (2)(e). The changes are in the order in which the words are expressed, rather than in 4 JUDGMENT 60

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substance and for all intents and purposes the two sections,

the current section and its predecessor, are the same.

The hearing in this appeal recommenced this morning. The

parties have filed supplementary submissions. Neither of the	10
submissions directly address the critical issue of the jurisdiction of the Court but I say that with the knowledge that there is little, if any, authority directly on the point.
However, the appellant foreshadowed, as he did in the oral	20
submissions yesterday, that an amendment to the notice of appeal may be sought. The respondent, having been put on notice of the application, indicated that it was prepared to
consent to it. That consent was clarified in submissions
today when the respondent, whilst not resiling from a consent	30
to the amendment if the Court considered that it would overcome any other issue, rather submitted that it too considered the jurisdictional point to be fatal to the appeal.
The amendment proposed is an amendment to the second ground of	40
appeal. The first ground, it seems, is by implication,
abandoned. I do not think that there is any issue, in this
case, that the original grounds of appeal were grounds of
appeal against conviction and not against sentence. I will
say something about that in a moment.	50

Mr Honchin, for the appellant, submitted that the complaint did not disclose an offence on which the appellant could be punished and that the plea of guilty was not a true plea. 5 JUDGMENT 60

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That submission is somewhat disingenuous. Mr Honchin appeared
for the appellant in the Magistrates Court, the plea was
entered in his presence. I do not accept that the entry of

the plea of guilty was not other than regular.

10

When one refers to the transcript of the proceedings below,
when the Magistrate had made his ruling in respect to the
application to stay the charge - based on submissions made in
respect of section 16 of the Criminal Code Queensland - an

adjournment was sought by the defendant and the Court was	20
subsequently informed that the defendant, that is the appellant here, had given his counsel instructions that he wished to enter a plea of guilty in relation to the charge.
Mr Honchin argued that the notice of appeal was drawn widely	30
enough to bring it into the exception in section 222(2)(c) of
the Act: that is, that the appellant was punished excessively
because he should not have been punished at all. In my view that ground of appeal does not permit that construction. It does not amount to a ground that asserts that the sentence	40
imposed was excessive, or manifestly excessive as that term is usually used in appeals. The word "excessive" is taken from the section itself.
Mr Honchin sought, in the alternative, an amendment by way of	50

substitution for the original grounds of appeal: that is, a
new ground, namely "that the punishment and/or penalty imposed
was excessive because no punishment and/or penalty ought to
have been imposed by reason of section 16 of the Criminal 6 JUDGMENT 60

1

Code."

I have no doubt that such an amendment, even on the hearing of
the appeal, is permissible pursuant to section 224(1)(c) of

the Justices Act. The respondent, as I have indicated,	10
consents to that amendment subject to the caveat in its submission this morning with respect to jurisdiction.
If I were to allow the amendment, would that cure the
jurisdictional issue or? Or, expressed another way, is the	20
amendment one that brings the case within section 222(2)(c) of
the Justices Act? As I have said, there is no doubt that the
original grounds were made in relation to the conviction. The
amendment would require an application to extend time for
appeal because the amendment seeks to substitute an appeal	30
against sentence.
If I was satisfied that there was no jurisdictional issue that
impacted on the appeal I would have granted leave to appeal
against sentence by a grant of leave to file the notice of	40
appeal out of time and granted leave for the substitution of the new ground by amendment. The respondent would not have opposed any of those things, given the submission that it has made in respect of the amendment issue.
50

It is necessary for me to consider what happened in the
Magistrates Court beyond simply the entry of a regular plea of
guilty. In the Magistrates Court the applicant had pleaded
not guilty in the first instance and made an application to 7 JUDGMENT 60

plea and had the appellant been found guilty, then the	10
jurisdictional issue would not have arisen. The appellant,
for example, could have elected not to contest the prosecution
case on the facts and to call no evidence. I do not think that such course of action would bring into play the words "admits the truth of a complaint" used in section 222(2)(c),	20
because there was a not guilty plea. In those circumstances a finding of guilt, I would have thought, inevitably followed.
The real issue in the appeal, which in my view now masquerades
as an issue of the sentence being excessive, is whether the	30
charge put the appellant in double jeopardy pursuant to
section 16 of the Criminal Code (Qld). If that issue had
succeeded before the acting Magistrate the charge would have
been stayed as being an abuse of process, I would have
thought. There would have been no sentence imposed and no	40
issue of any sentence being excessive.
The plea of guilty below, however, has changed that. It
constitutes an acceptance of the facts and circumstances of
the charge. The appeal grounds, whether in the original form	50

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stay the proceedings. The application was refused. As I've

said, it then followed that a plea of guilty was entered.

If the case had perhaps proceeded to a hearing on a not guilty

or as proposed in the amendment, in reality dispute the acting advanced in the Magistrates Court and his refusing the 8 JUDGMENT 60

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application to stay the charge.

In my view, no matter how the ground of appeal is dressed up
that conclusion is inevitable. If the appeal proceeded I

would, in truth, be asked to re-hear the double jeopardy issue	10
and the appellant would seek to have the sentence set aside
and no sentence imposed in lieu of it, thus arriving at an
outcome of the type that was sought in the Court below when
the application to stay the charge was made. That, it seems
to me, can be the only way in which an appeal could proceed	20
here.
If it is to be argued that no penalty was open to be imposed
it could only be on the ground that the charge amounted to an
abuse of process, that it should be stayed and that the	30
sentence therefore should be set aside.
The appellant is seeking to invoke the jurisdiction of this
Court by, in a sense, stepping around the limitation imposed
on the Court by section 222(2)(c) of the Justices Act, through	40
what seems to me - and I am not being critical of counsel at all in saying this - a series of smoke and mirrors.
I do not need to consider the application to amend the notice
of appeal by substitution of a new ground of appeal or the	50

issue of enlarging the time within which to appeal. An
amendment will not change the position in my view, and it will
not change the position that, somewhat regrettably, I find
myself in. The appellant is in the unfortunate position he is 9 JUDGMENT 60

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because of the plea of guilty entered in the Magistrates

Court.

Mr Honchin in his submissions, referred to several authorities

dealing with circumstances where this Court has no	10
jurisdiction under the section 222 of the Justices Act, in a
sense by way of analogy, in trying to construe the section in
a way most favourable to the appellant. The cases to which he
referred dealt with the setting aside of a guilty plea (Long
v. Spivey [2004] QCA 118), or an appeal against an order that	20
there was a case to answer (Schneider v. Curtis [1967]Qd R 300). See also Phillips v. Magistrate Robert Spencer and the State of Queensland [2005] QSC 053.
However, none of those grounds were argued or indeed are open	30
in this appeal. The submission, in effect, seeks to persuade the Court that it should hear the appeal because the appellant could not appeal the Acting Magistrate's ruling in refusing the stay application.
40
I do not have any issue about the lack of jurisdiction of the
Court in respect of those cases to which I have referred and
the other cases that Mr Honchin provided to me. I do not
think there is any issue about the law in respect of those
matters. However, those circumstances do not apply here.	50

As I have said, the appellant by entering a regular plea of guilty has found himself caught by the jurisdictional limitation placed on this Court in the Act. In a sense, and 10 JUDGMENT 60

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again I do not say this in a critical way, the appellant seeks
to place himself outside the limitation by arguing that he
should not have been punished because the charge was an abuse

of process of the Courts.

10

At the end of the day it is my view, somewhat reluctantly, to find that I do not have jurisdiction to entertain the appeal. The appeal is (in the way in which it is commonly expressed by

the Court) incompetent and it should be struck out.

20

However, I will briefly add something about the issues that were proposed to be argued on the appeal without, of course, making any findings or any determination of those matters.

The double jeopardy issue was said to have arisen because the	30
appellant had been convicted on 7th April 2008 of exceeding
the speed limit by 20 kilometres an hour and on 20 July 2008 of exceeding the speed limit by 40 kilometres an hour, which was a high speed offence. Those offences, having been
committed in a period of 12 months, lead to the imposition of	40
a suspension of the driving licence for accumulating excessive demerit points.
There was a suspension from the 14th of October 2008 to the
13th of April 2009 in respect of the high speed driving	50

offence which was concurrent with a demerit point suspension from the 15th of October 2008 to the 14th of June 2009. The latter was in respect of an accumulation of points whilst on a 11 JUDGMENT 60

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good driver behaviour period.

The appellant had a lengthy traffic history. Between 1984 and
2008 he had some 19 convictions for speeding offences, 10 of

those in the five years from 2003. In the period 1984 to 2008	10
he had three instances of suspension or cancellation of licence through demerit point accumulation and three demerit point warning letters. Two each of those occurred in the five years from 2003.
20
In this case eight demerit points had been allocated for the
high speed offence. They were again used as the basis of the
suspension of the driver's licence within the good driving behaviour period. The appellant's argument below was that this resulted in him being twice punished in relation to the	30
high speed offence, contrary to section 16 of the Criminal or omission" as that phrase is used in section 16.
There is ample authority that section 16 is concerned with	40
"punishable acts or omissions": The Queen v. Tricklebank [1994] 1 Qd R300; The Queen v. Harris [1999] QCA 392.
The charges, that is the high speed offence made pursuant to
section 78(1) and 78(3)B, and the breach of the good driving	50

behaviour period made pursuant to Regulation 25(5), would not
seem to me to be the same punishable act. I would not have
considered that there was any unity of time and place. Nor
would I have considered that section 16 had any application to 12 JUDGMENT 60

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those circumstances.

The sentence imposed by the acting Magistrate was modest. It
was clearly in range. The small fine was balanced by the

period of disqualification, a mandatory period, which, of	10
course, is part of the sentence. I do not think that there would be any circumstance in which it could have been successfully argued that it was excessive, including in the absence of any finding in favour of the section 16 argument.
20
I have considered the issue of costs. The respondent did not
raise, or until this morning argue, the jurisdiction point.
It was prepared to consent otherwise to the substitution of a new ground of appeal, a course that I have said does not help the appellant. The appeal falls on the jurisdiction issue.	30
In the circumstances I will make no order as to costs.
The orders are:

(1) The appeal is dismissed;	40
(2) There be no order as to costs.
50

13 JUDGMENT 60