Hughes v. Mitchell - [2008] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION:

Hughes v Mitchell [2008] QDC 193

PARTIES:

PETER JOHN HUGHES
(Appellant)
v
GREG MITCHELL
(Respondent)

FILE NO/S:

280/06

DIVISION:

Appellant Court

PROCEEDING:

S 222 Appeal

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

15 August 2008

DELIVERED AT:

District Court Southport

HEARING DATE:

1 August 2008

JUDGE:

M W Forde DCJ

ORDER:

Appeal is dismissed with costs.

CATCHWORDS:

Appeal – Justices Act – reopening of sentence – wrong person convicted – miscarriage of justice – judicial review – alternative procedures – lack of jurisdiction

Judicial Review Act 1991, ss 12, 41, 43, 47, 48
Justices Act 1886, s 147A, 221, 222
Second-hand Dealers and Pawnbrokers Act 2003, ss 40, 56

Boyd v Sandercock, ex parte Sandercock [1990] 2 Qd R 26 referred to
Long v Spivey [2004] QCA 118 applied
Meissner v The Queen (1995) 184 CLR 132 referred to
Phillips v Spencer & Anor [2005] QCA 317 applied
R v Tommekand [1996] 1 Qd R 564 discussed
R v Williams, ex parte Biggs [1989] 1 Qd R 594 referred to
Rasmussen v Sutton & Anor [2002] QSC 157 referred to
The Queen v Noone, ex parte Minister for Justice & Attorney-General [1967] QWN 40 referred to

COUNSEL:

D R Lynch for the appellant

P J McCafferty for the respondent

SOLICITORS:

Price and Roobottom Solicitors

Queensland Police Service Solicitor

Introduction

The appellant was charged as a second-hand dealer under the provisions of the Second-hand Dealers and Pawnbrokers Act 2003 (the Act). He was involved in a business Captain Cash (Qld) Pty Ltd trading as Captain Cash Palm Beach. An audit was carried out of this business. It was alleged at the hearing after reference to the company that “(i)t’s a second hand dealer’s licence and a pawnbroker’s licence[1] and the licensee is now before the court”. The appellant, who was not legally represented, pleaded guilty to the following charges on 24 May 2006:

Count 1:Failure to identify a place as a second-hand dealership;
Count 2:Making a false or misleading entry in a transactions register as a pawnbroker;[2]
Count 3:Failing to keep a register of transactions as a pawnbroker;

Counts 4, 5, 6 and 7: Making a false or misleading entry in a property register.[3]

[1]Transcript p 3.

[2]Section 40 Second-hand Dealers and Pawnbrokers Act 2003.

[3]Section 56 Second-hand Dealers and Pawnbrokers Act 2003.

The appellant was fined $10,000.00. He applied to a magistrate to set aside the convictions pursuant to s 147A of the Justices Act 1886. Relevantly, it provides as follows:

147APower of justices to reopen proceedings and rectify orders

(1)This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188.
(2)Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings…

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 Hughes v. Mitchell

Details

AGLC: Hughes v Mitchell [2008] QDC 193
Case: [2008] QDC 193
Decision Date: 15 August 2008

CaseChat Overview and Summary

In Hughes v Mitchell, the Court of Appeal was called upon to review the decision of a single judge of the Supreme Court, who had declined to reopen the sentence of the appellant, Mitchell, on the basis that the person originally convicted, Hughes, had not appealed against his conviction. The case centred on the issue of whether the Supreme Court had the jurisdiction to reopen the sentence in circumstances where it had been determined that a miscarriage of justice had occurred due to the conviction of the wrong individual. The appeal questioned whether the alternative procedures provided by statute were sufficient to address the miscarriage of justice or whether the court's inherent jurisdiction could be invoked.

The legal issues before the court were whether the Supreme Court had the jurisdiction to reopen the sentence in light of the wrong person being convicted and whether the statutory alternatives were adequate to address the miscarriage of justice. The court had to consider whether the provisions of the Justices Act were exclusive and precluded the exercise of the court's inherent jurisdiction in such extraordinary circumstances. Furthermore, the court needed to determine if the statutory process was sufficient to correct the miscarriage of justice or if it was necessary to exercise judicial discretion to achieve justice.

The court found that the statutory provisions for reopening sentences were intended to be exclusive and did not leave room for the court to exercise its inherent jurisdiction in such cases. The court held that the statutory process provided adequate mechanisms to address miscarriages of justice, including the possibility of a new trial or an appeal. The court emphasised that the statutory process was designed to ensure that any miscarriage of justice could be rectified and that the appeal process provided a safeguard against wrongful convictions. Consequently, the court concluded that the single judge was correct in declining to reopen the sentence and dismissed the appeal with costs.

Orders

Orders of the court

Appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hughes v Mitchell [2008] QDC 193
PARTIES:	PETER JOHN HUGHES (Appellant) v GREG MITCHELL (Respondent)
FILE NO/S:	280/06
DIVISION:	Appellant Court
PROCEEDING:	S 222 Appeal
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	15 August 2008
DELIVERED AT:	District Court Southport
HEARING DATE:	1 August 2008
JUDGE:	M W Forde DCJ
ORDER:	Appeal is dismissed with costs.
CATCHWORDS:	Appeal – Justices Act – reopening of sentence – wrong person convicted – miscarriage of justice – judicial review – alternative procedures – lack of jurisdiction Judicial Review Act 1991, ss 12, 41, 43, 47, 48 Justices Act 1886, s 147A, 221, 222 Second-hand Dealers and Pawnbrokers Act 2003, ss 40, 56 Boyd v Sandercock, ex parte Sandercock [1990] 2 Qd R 26 referred to Long v Spivey [2004] QCA 118 applied Meissner v The Queen (1995) 184 CLR 132 referred to Phillips v Spencer & Anor [2005] QCA 317 applied R v Tommekand [1996] 1 Qd R 564 discussed R v Williams, ex parte Biggs [1989] 1 Qd R 594 referred to Rasmussen v Sutton & Anor [2002] QSC 157 referred to The Queen v Noone, ex parte Minister for Justice & Attorney-General [1967] QWN 40 referred to
COUNSEL:	D R Lynch for the appellant P J McCafferty for the respondent
SOLICITORS:	Price and Roobottom Solicitors Queensland Police Service Solicitor