Cady v Cremasco

[2013] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

Cady  v Cremasco [2013] QDC 171

PARTIES:

Rodney George Cady

(Appellant)

v

Senior Constable Dominic Trevor Cremasco

(Respondent)

FILE NO/S:

18/12

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate’s Court at Warwick

DELIVERED ON:

2 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2013

JUDGE:

Kingham DCJ

ORDERS:

1.   Time to file the Notice of Appeal against convictions is extended to 2 November 2012.

2.   The application by Mr Cady to vacate his plea of guilty to the second offence is refused.

3.   The appeal is dismissed.

4.   No order as to costs.

CATCHWORDS:

APPEALS – APPEAL AGAINST CONVICTION – WITHDRAWAL OF PLEA OF GUILTY – where the appellant indicated an intention to plead guilty and was convicted – where the appellant was of full age and sound understanding – whether the appellant should be granted leave to withdraw his plea.

APPEALS – APPEAL AGAINST CONVICTION – PROCEDURE - APPLICATION TO LEAD FRESH EVIDENCE – where the evidence sought to be led by the appellant on appeal could have been secured before summary trial – where the evidence could not reasonably lead to a different verdict – whether leave should be granted to the appellant to lead fresh evidence.

APPEALS – APPEAL AGAINST CONVICTION – FINDINGS OF FACT – where the summary trial was conducted in the appellant’s absence and the learned Magistrate put the appellant’s case to the respondent - where the learned Magistrate accepted the respondent’s evidence, which conflicted with the appellant’s defence – whether the learned Magistrate erred in his findings of fact.

International Covenant on Civil and Political Rights 1966 (United Nations), Art 15.

Justices Act 1886 (Qld) ss 142(6), 146A(2), 222(2)(c), 223(2).

Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) ss 132(2), 138.

Ajax v Bird [2010] QCA 2, applied.

Fox v Percy (2003) 214 CLR 118, applied.

Gallagher v The Queen (1986) 160 CLR 392, applied.

Long v Spivey [2004] QCA 118, applied.

Meissner v The Queen (1995) 184 CLR 132, applied.

Pavlovic v Commissioner of Police [2006] QCA 134, applied.

Powell v Chief Executive Officer of Customs [2012] QCA 338, applied.

Rowe v Kemper [2008] QCA 175, applied.

COUNSEL:

The appellant appeared on his own behalf.

Ms J.A. Wooldridge for the Respondent.

SOLICITORS:

The appellant appeared on his own behalf.

Office of the Director of Public Prosecutions (Qld) for the Respondent.

Background

1. Mr Cady seeks to appeal his convictions for two traffic offences, committed on 12 February 2012. The first charge was for failing to keep to the left of the centre of a road or dividing line.[1] The second was for failing to keep off a painted island.[2]

   [1] Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) s 132(2).

   [2] Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) s 138(1).

2. The appeal was filed on 2 November 2012, which means it is out of time. Because the respondent had previously,…