Gardiner v Queensland Police Service

[2010] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

Gardiner v Queensland Police Service [2010] QCA 329

PARTIES:

GARDINER, Andrew James
(appellant/applicant)
v
QUEENSLAND POLICE SERVICE
(respondent/respondent)

FILE NO/S:

CA No 146 of 2010
DC No 133 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

23 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2010

JUDGES:

Fraser and White JJA and Philippides J
Separate reasons for judgment of each member of the Court each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where in December 2007 the applicant was convicted of two speeding offences in his absence – where in September 2009 the applicant filed a notice to appeal under s 222 of the District Court of Queensland Act 1967 (Qld) – where the primary judge refused to grant the applicant an extension of time within which to appeal because he gave no reason for the delay and had no ground of appeal – where the applicant applied to this Court for leave to appeal – where the applicant contended that leave should be granted as he had not received certain documents regarding the certainty and accuracy of the devices used to prove the offences – whether the applicant identified any arguable error in the primary judges reasons – whether the applicant should be granted leave to appeal

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 142A, s 222
Transport Operations (Road Use Management) Act 1995 (Qld), s 124(4), s 124(5)

COUNSEL:

The applicant appeared on his own behalf
R Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 17 December 2007 the applicant was convicted of two speeding offences committed in late 2007. He was convicted under s 142A of the Justices Act 1886 (Qld) in his absence after proof that he had been duly served with a summons. He was fined $200 for the first speeding offence and $300 for the second offence and ordered to pay court costs.

On 3 September 2009 the applicant filed a notice of appeal under s 222 of the Justices Act 1886 (Qld). Because s 222(1) of the Justices Act 1886 (Qld) prescribes a time limit of one month for such an appeal the applicant required a very lengthy extension of time within which to appeal. After a hearing in which the applicant represented himself, a District Court judge refused to grant the necessary extension of time both because the applicant gave no reason for his delay in appealing and because he had no ground of appeal.

The applicant has applied for leave to appeal to this Court under s 118 of the District Court of Queensland Act 1967 (Qld). The application states that leave should be granted because the applicant had not received certain documents regarding the certainty and correct use of the speed measuring devices to prove the alleged offences, but the applicant did not argue that he had given the notice which subsections 124(4) and (5) of the Transport Operations (Road Use Management) Act 1995 (Qld) required if he wished to challenge the accuracy of the speed measuring devices.

Other documents the applicant requested reflected his self-serving contentions that he was not bound by legislation or required to appear in court without his express consent.  By way of example of the applicant’s other and equally frivolous points he argued that the speed signs are only recommendations, that his name should not have been capitalised in a court document, and that the judge should not have called him Mr Gardiner.
He complained also that the fines imposed in the Magistrates Court exceeded the fines on the tickets, but the Magistrate’s discretion as to the appropriate fines was not limited to the amounts for tickets.

The District Court judge’s reasons clearly explain why the application for an extension of time to appeal to that court was refused.  The applicant did not identify arguable error in those reasons and I have found none.  The application should be refused.

WHITE JA:  I agree for the reasons expressed by the presiding Judge.

PHILIPPIDES J:  I also agree.

FRASER JA:  The order of the Court is that the application is refused.