Gibb v Grieve

[2010] QDC 182

[2010] QDC 182

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE KOPPENOL

Appeal No 2664 of 2009

ROBERT BALFOUR GIBB	Appellant
and
DARREN KEVIN GRIEVE	Respondent
BRISBANE ..DATE 19/04/2010 ORDER

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HIS HONOUR: This is an appeal from the decision of a learned

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Magistrate at Gympie.

On 30 July 2009 the applicant was convicted of one count of
dangerous operation of a motor vehicle. He was fined $1,000

and received the mandatory six months disqualification of his	10
driver's licence.
The notice of appeal raises two points, namely that the
Magistrate failed to accord the applicant procedural fairness
in that he should have adjourned the matter to enable the	20
applicant, who was then self-represented, to get legal representation and also to call an alibi witness.
There was some history to this matter. On the 31st of March
2009 the matter was adjourned in the Magistrates Court after	30
the applicant made a submission that he was self-represented, but was in the process of selling his house and would use some of the proceeds of the sale to instruct solicitors to act for him.
40
There were then a number of subsequent mentions and the matter
was adjourned, but was eventually listed for the 28th of July
2009. It was on that occasion that the applicant sought to
have the matter adjourned, informing the Magistrate that the
sale of his house was due to settle within one week and that	50

he would then have sufficient money to be able to instruct
legal representation.
The issue of the alibi witness was also raised. The applicant 1-2 ORDER 60

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had put forward two alibi witnesses. One attended the summary
hearing on 28 July and gave evidence. Ultimately the
Magistrate was not satisfied that that person's account of
events should be accepted. The other alibi witness did not

attend at that hearing. It was for that reason that the	10
applicant sought an adjournment to enable that alibi witness to be called.
I can understand the frustration of the learned Magistrate.
This matter had been the subject of four or five previous	20
mentions and had been adjourned on those various occasions. In a very busy Court such as the Magistrates Court, it is quite obviously the proper course for Magistrates to ensure that matters are dealt with as expeditiously as possible.
30
However, I think that in the particular circumstances of this
case, given the submission by the applicant at the time that
the sale of his property was due within a week and that he
would then have sufficient funds to have lawyers act for him
and that there was a prospect of another alibi witness being	40
able to give evidence, it would have been preferable if the matter had been adjourned. The matter was not adjourned and in the end the applicant was convicted, fined and had his licence disqualified, as I have already said.
50

I think that in all of the circumstances and without in any way being critical of the procedure that was adopted in the Magistrates Court, there has been a failure of procedural fairness in this case. In those circumstances, it is 1-3 ORDER 60

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appropriate that this appeal be upheld and I order
accordingly. I will therefore set aside the conviction for
dangerous driving as well as the fine which was imposed and
the licence disqualification. This matter will be re-listed

for a summary trial in the Magistrates Court at a time and	10
date that is convenient to that Court and to the parties.
During argument I asked the solicitor for the Queensland
Police Service whether the Magistrate had ever said to the
applicant words to the effect that "Now that you've had a	20
certain number of adjournments in this matter and you're still
not ready to proceed, a time will come soon when this matter
must be heard on its merits." Therefore a statement could
well have been made by the Magistrate that the matter would be
heard and decided in say two or three weeks' time. I think	30
that proceeding in the way that this matter was proceeded with
resulted in prejudice to the applicant which could easily have
been overcome by informing him that given that he had the sale
of the property so close in the immediate future, the matter
could have been adjourned for say three weeks, the then	40
defendant having been notified expressly by the Magistrate that there would be no further adjournments and that it was incumbent upon him to arrange legal representation. That was not done.
50

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