Kelly v Commissioner of Police

[2016] QCA 91

[2016] QCA 91

COURT OF APPEAL

MARGARET McMURDO P
GOTTERSON JA
MORRISON JA

CA No 301 of 2015
DC No 2766 of 2014

KELLY, Mark John  Applicant

v

COMMISSIONER OF POLICE  Respondent

BRISBANE

TUESDAY, 12 APRIL 2016

JUDGMENT

MORRISON JA: Mr Kelly pleaded guilty on 10 January 2014 to four charges, one of which was failing to stop his car when directed by police to do so, an offence under s 754 of the PolicePowers and Responsibilities Act 2000 (Qld). He was sentenced on that charge to six months probation and disqualified from holding or obtaining a driver’s licence for two years. Mr Kelly sought an extension of time within which to appeal to the District Court under s 222 of the Justices Act 1886 (Qld). That application was refused and the appeal dismissed on 2 April 2015. Kelly v Commissioner for Police [2015] QDC 72. Notwithstanding that the order was for the appeal to be dismissed, in truth the refusal of an extension of time meant there was no appeal, but nothing turns on that. The time limited for filing an application for leave to appeal against that decision ran out on 30 April 2015.

On 14 December 2015, Mr Kelly filed the present application for an extension of time within which to apply for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). It is thus about seven and a half months out of time. On the application for an extension of time the issues are whether (a) good reason for the delay has been shown; (b) it is in the interests of justice to grant the extension; and (c) that may necessitate a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent and the length of the delay: see R v Tait [1999] 2 Qd R 667 at paragraph 5; and Perhouse v Queensland Police Service [2013] QCA 296 at paragraph 13. The issues raised on the question of leave to appeal are whether (a) an appeal is necessary to correct a substantial injustice; and (b) there is a reasonable argument that there is an error to be corrected: see Pickering v McArthur [2005] QCA 294 at paragraph 3; Berry v Commissioner of Police [2014] QCA 238 at paragraph 4; White v Commissioner of Police [2014] QCA 121 at paragraph 5.

As previously mentioned, Mr Kelly’s appeal to the District Court was under s 222 of the Justices Act 1886 (Qld). Any appeal to this Court must be under s 118(3) of the DistrictCourt of Queensland Act 1967. There are differences between the two, as explained in White v Commissioner of Police [2014] QCA 121 at paragraph 8, where it was held that an appeal to this Court from the District Court seeking to review the decision of the District Court in its appellate jurisdiction may only be made with the leave of this Court and is not an appeal by way of rehearing, but a strict appeal where error of law must be demonstrated: see Gobus v Queensland Police Service [2013] QCA 172 at paragraphs 3 to 5, per Fraser JA, and Commissioner of Police v Al Shakarji [2013] QCA 319 at paragraph 75, per North J. Therefore, in order to demonstrate prospects of success in the proposed appeal, Mr Kelly must identify error of law in the decision of the learned District Court judge.

The learned primary judge recited the reason given for the delay in applying to that court.  It was that Mr Kelly had been told by a probation officer that he could appeal once the probation order was completed.  The learned primary judge said that if there were merit in the proposed appeal, he would extend time.  His Honour then examined that question, finding that Mr Kelly had entered an unequivocal plea of guilty and that the impugned sentence was mandatory.

His Honour also noted that the learned magistrate had ordered probation instead of a fine, thus mitigating what the magistrate evidently thought was an excessive period of disqualification in the circumstances.  The learned primary judge concluded that the appeal could not succeed.  As a result the extension of time was refused.  The reason for the more than seven month delay since the District Court decision is not explained adequately.  In his oral address Mr Kelly said that he had been to the Magistrates Court twice.  Once was on the occasion of the sentence by the magistrate for the current offence.  The other occasion was after the District Court judgment when Mr Kelly approached the same magistrate on the basis that that course was suggested by the District Court judge.  A review of the reasons in the District Court does not reveal that to be so.

That approach to the Magistrates Court still does not provide an adequate explanation for the delay since the District Court decision.  The interests of justice do not warrant the grant of an extension of time.  In his outline of argument Mr Kelly advances contentions that seem to go to whether he was guilty of the offence.  He also seems aggrieved at the disqualification of his licence and the impact that has had on his life.  Neither has merit as a challenge to the decision of the District Court.  No error of law is identified in the decision of the District Court.  First, Mr Kelly pleaded guilty, and the learned primary judge made a finding of fact that the plea was “unequivocally entered deliberately and in the exercise of his free will”, citing Maxwell v The Queen (1994) 184 CLR 501; and R v Jerome and McMahon [1964] Qd R 595. There has been nothing advanced to suggest that the plea was not an unequivocal exercise of free choice: see Meissner v The Queen (1995) 184 CLR 132.

Secondly, the disqualification penalty was mandatory for that offence: see s 754(3) of the Police Powers and Responsibilities Act 2000 (Qld). Thirdly, no error of law has been identified in the decision of the learned District Court judge. Fourthly, insofar as Mr Kelly complains that the Department of Transport is “being obstinate in withholding” a particular certificate that impacts on his ability to be a driver for reward. That is not something arising from the decision below. From Mr Kelly’s oral address it is apparent that the difficulty simply follows from the imposition of the mandatory sentence. The matters referred to above show that there is no substantial injustice that might be corrected by the proposed appeal. No error of law on the part of the District Court judge has been shown. For those reasons the application for an extension of time should be refused.

THE PRESIDENT:  I agree.

GOTTERSON JA:  I agree.

THE PRESIDENT:  The application for an extension of time for leave to appeal is refused.