Lambert v Queensland Police Service - [2017] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Lambert v Queensland Police Service [2017] QDC 147

PARTIES:

DONALD CYRIL LAMBERT
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

APPEAL NO: 4/2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mount Isa

DELIVERED ON:

31 May 2017

DELIVERED AT:

Innisfail

HEARING DATE:

7 May 2017

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The conviction and orders of the Magistrates Court made on 5 September 2016 are set aside.

3.   The proceeding commenced by of the complaint and summons is remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – disobeying speed limit – hearing proceeded ex parte in absence of defendant pursuant to s 114A of the Act – fresh evidence allowed on appeal showing failure to disclose material matters affecting mode of hearing of appeal and meritorious defence – where application warranted to re-open proceedings for want of effective service of complaint and summons (returned unclaimed after hearing) – appellant’s application to reopen case refused by registry as being out of time – where appellant registered owner but proved not the driver in offending conduct - whether defence available by giving statutory declarations within requisite time – whether viable defence.

Legislation
Acts Interpretation Act 1954 (Qld), s 39
Justices Act 1886 (Qld), ss 52, 142, 142A, 147, 222, 223 & 227
State Penalties Enforcement Act 1999 (Qld), 33, 38, 56, 57, 60
Transport Operations (Road Use Management) Act 1995 (Qld), ss 62, 113, 113A 114, 120 and 124
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), ss 20, 353

Cases

Attorney-General (Qld) v Morris [2015] QCA 112

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Herron v McGregor (1986) 6 NSWLR 246
Morris v R (1987) 163 CLR 454
Vinson v Hongara [2014] QDC 249

White v Commissioner of Police [2014] QCA 121

SOLICITORS:
The appellant was unrepresented
A Payne, legal officer of the Office of Director of Public Prosecutions for the respondent

On 5 September 2016 the appellant was convicted, after failing to appear in the Magistrates Court held in Mount Isa, to answer a charge by complaint and summons of disobeying the speed limit, by driving a over a speed limit of 60 km/hr. The proceeding was determined in his absence and he was convicted and fined $531 and ordered to pay costs of $90.20.

The appellant now appeals the decision and the refusal of his application to re-open the case.

I have considered outlines of argument and further submissions of both parties on the hearing of the appeal, as well as additional material and able submissions sought from the respondent.

Background

The appellant was born on 14 November 1961. He was 52 at the time of the offence and is 55 now. The appellant has a traffic record.

The alleged offence occurred on 20 October 2014…

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.

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Details

Case: [2017] QDC 147
Decision Date: 31 May 2017

CaseChat Overview and Summary

In the case of Lambert v Queensland Police Service, the appellant challenged his conviction for disobeying a speed limit, which was determined in a hearing that proceeded ex parte in his absence. The appeal was pursuant to section 222 of the Justices Act 1886 (Qld), and the matter came before the court following the introduction of fresh evidence demonstrating a failure to disclose material matters that affected the mode of hearing of the appeal, as well as the existence of a meritorious defence. The appellant sought to re-open the proceedings due to ineffective service of the complaint and summons, which had been returned unclaimed after the hearing. The registry denied the appellant's application to reopen the case, citing it as being out of time. Furthermore, the appellant, who was the registered owner of the vehicle, proved that he was not the driver during the incident in question.

The primary legal issues before the court were whether the appellant's application to reopen the case was warranted due to the ineffective service of the complaint and summons, and whether the appellant could still provide a viable defence by submitting statutory declarations within the requisite time frame. The court considered the appellant's argument that the failure to disclose material matters, coupled with the meritorious defence, warranted a rehearing of the case. The appellant also contended that he could provide a viable defence through statutory declarations, despite the denial of the application to reopen the case.

The court found that the appellant's application to reopen the case was indeed warranted, as the ineffective service of the complaint and summons resulted in a significant procedural error. The court further determined that the appellant could still provide a viable defence by submitting statutory declarations within the requisite time frame. Consequently, the appeal was allowed, and the conviction and orders of the Magistrates Court made on 5 September 2016 were set aside. The proceeding was remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.

The court's decision highlights the importance of proper service of legal documents and the consequences of failing to do so. It also demonstrates that a viable defence may still be presented through statutory declarations, even if the application to reopen the case is denied as being out of time. The final orders of the court set aside the conviction and orders of the Magistrates Court and remitted the proceeding to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction and orders of the Magistrates Court made on 5 September 2016 are set aside.

3. The proceeding commenced by of the complaint and summons is remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lambert v Queensland Police Service [2017] QDC 147
PARTIES:	DONALD CYRIL LAMBERT (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: 4/2017
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mount Isa
DELIVERED ON:	31 May 2017
DELIVERED AT:	Innisfail
HEARING DATE:	7 May 2017
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal allowed. 2. The conviction and orders of the Magistrates Court made on 5 September 2016 are set aside. 3. The proceeding commenced by of the complaint and summons is remitted to the Magistrates Court Mount Isa Registry for rehearing and determination according to law before a different magistrate in due course.
CATCHWORDS:	CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – disobeying speed limit – hearing proceeded ex parte in absence of defendant pursuant to s 114A of the Act – fresh evidence allowed on appeal showing failure to disclose material matters affecting mode of hearing of appeal and meritorious defence – where application warranted to re-open proceedings for want of effective service of complaint and summons (returned unclaimed after hearing) – appellant’s application to reopen case refused by registry as being out of time – where appellant registered owner but proved not the driver in offending conduct - whether defence available by giving statutory declarations within requisite time – whether viable defence. Legislation Acts Interpretation Act 1954 (Qld), s 39 Justices Act 1886 (Qld), ss 52, 142, 142A, 147, 222, 223 & 227 State Penalties Enforcement Act 1999 (Qld), 33, 38, 56, 57, 60 Transport Operations (Road Use Management) Act 1995 (Qld), ss 62, 113, 113A 114, 120 and 124 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), ss 20, 353 Cases Attorney-General (Qld) v Morris [2015] QCA 112 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Herron v McGregor (1986) 6 NSWLR 246 Morris v R (1987) 163 CLR 454 Vinson v Hongara [2014] QDC 249 White v Commissioner of Police [2014] QCA 121
SOLICITORS:	The appellant was unrepresented A Payne, legal officer of the Office of Director of Public Prosecutions for the respondent