Lemon v The Queensland Police Service
[2014] QDC 153
•18 July 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Lemon v The Queensland Police Service [2014] QDC 153
PARTIES:
ROBERT ALAN LEMON
(appellant)v
THE QUEENSLAND POLICE SERVICE
(respondent)FILE NOS:
4004/12 and 4005/12
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
18 July 2014
DELIVERED AT:
Brisbane
HEARING DATE:
23 May 2014
JUDGE:
Kingham DCJ
ORDER:
Applications for an extension of time to appeal in both matters are refused
CATCHWORDS:
APPEAL - EXTENSION OF TIME IN WHICH TO APPEAL - where no error identified in the findings, conclusions of law, or reasoning at first instance on either of the convictions or sentences - where no reasonable prospects of success on appeal
COUNSEL:
Self-represented Appellant
B Jackson (solicitor) for the Respondent
SOLICITORS:
Self-represented Appellant
Office of the Director of Public Prosecutions for the Respondent
Mr Lemon was convicted on 12 June 2012 of failing to stop at a red light on 16 October 2011. He was also found guilty of disobeying a speed limit by travelling at 63 kph in a 40 kph zone in Alice Street, Brisbane on 29 December 2011. He wishes to appeal both convictions and sentence in both matters.
Both notices of appeal were filed along with applications for extension of time within which to appeal on 12 October 2012. At the hearing, the legal officer appearing for the respondent did not argue against leave being granted. However, that is a matter for the court to exercise its discretion pursuant to s 2241A of the Justices Act 1886. The considerations courts generally have regard to on an application for extension of time include the length and reasons for the delay; the impact of the delay on any party; and whether the appellant has shown an arguable case.
If a case is hopeless, unarguable or bound to fail, the request for an extension of time will generally be refused.[1] For reasons set out later I have determined that the applications for an extension of time should not be granted. Before turning to those reasons, however, there are some observations I wish to make about some of the matters raised by Mr Lemon in his appeal.
[1]Jackamarra v Krakouer (1998) 195 CLR 516 at 539-543
Mr Lemon filed extensive submissions in two parts. The first part was a 98 page document, the second 16 pages. I read the submissions in full in order to ensure that relevant grounds of appeal were adequately identified, given Mr Lemon was a litigant in person. I was greatly assisted by the work of the legal officer from the Office of the Director of Public Prosecutions who identified five grounds raised on Mr Lemon’s material and addressed those in his submissions.
Mr Lemon’s submissions are expansive and traverse the history of his interactions with government from the 1960’s when he was involved in a grazing operation at Walkamin in North Queensland. Mr Lemon included material obtained from a diverse and uncommon array of sources to illustrate multifarious and discursive points in his narrative. It is evident that he has been gravely affected by misfortunes he has experienced in farming and grazing ventures, first at Walkamin and later at Stanthorpe.
Mr Lemon is unhappy with how he has been treated by a number of different agencies and public institutions including various departments of the Queensland government; Centrelink; the Social Security Appeals Tribunal; the Administrative Appeals Tribunal and the Family Court. His grievances relate to unwise land and water allocations; inadequate support for rural ventures; unsustainable environmental and land management decisions; inappropriate assessment of his income and consequent pension decisions; the terms of engagement between drivers of taxis and the companies that use their services; and orders made by the Family Court in the course of marital separation.
In Mr Lemon’s material he has included letters he has written to various agencies and political representatives, as well as extracts from other cases in which he has been involved. These include claims for damages amounting to almost a million dollars arising out of various government decisions for failures he alleges against local, state and federal agencies.
None of those grievances, including the cancellation of his driver’s licence and, consequently, his taxi driver’s licence, are before me on these appeals. While Mr Lemon requested I refer his claims to the appropriate jurisdictions, in this appellate jurisdiction and on the material before me it is neither possible nor appropriate to do so.
In his submissions, Mr Lemon also addressed manifold social and ethical issues ranging from matters of religion, gender, sexuality, reproduction, abortion, race, immigration and the electoral process. None of these are matters that can be dealt with on these appeals.
When those matters that are peripheral to the appeal are put to one side, Mr Lemon’s complaints about his convictions at first instance (and the penalty for the speeding fine) can be simply stated as follows:
(a) in relation to the conviction for failing to stop at a red light he contends the traffic lights did not remain on an amber light for sufficient time for him to stop;
(b) in relation to the conviction for speeding, he claims not to have been aware that Alice Street was subject to a 40 kph speed limit and, in any case, says he had a defence of emergency as he was required to accelerate to avoid a dangerous situation;
(c) in relation to the penalty, although his notice of appeal for the red light offence appears to relate to conviction only, his submissions address the fines and orders made on both convictions; in relation to those he argues court judgments should not be used to raise revenue for government and that his other debts should have priority over the penalties in these matters and the court costs he was ordered to pay were unreasonable in his circumstances.
Having considered Mr Lemon’s arguments, reviewed the transcript proceedings and decision on both matters and considered the arguments made by the respondent in its submissions, I am satisfied that, were I to grant an extension of time within which to appeal, Mr Lemon’s appeals against both convictions and penalty would undoubtedly fail.
The red light conviction
Dealing first with the red light offence, expert evidence was led at trial from a traffic engineer with the Brisbane City Council about the operation and timing of the traffic lights at the relevant intersection. Those traffic lights remain on amber for four seconds, a time set since 2001, which is half a second longer than that required by the current Australian standards. The standards take into account specific traffic conditions, including the speed limit of the road leading to the intersection and the physical characteristics of the road, such as its gradient. Chief Magistrate Butler, as he then was, was satisfied on the evidence that all the traffic lights were red just prior to the front of Mr Lemon’s vehicle crossing the white line. Other evidence was led that, when the photograph was taken, Mr Lemon was still travelling at 25 to 30 kph.
Pursuant to s 5 of the Transport Operations (Road Use) Regulations 2009, a driver approaching a yellow traffic light must stop if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line. A driver approaching a red traffic light must stop.
If the court assumes there was an amber light displayed as Mr Lemon was approaching the intersection, his speed when crossing the white line suggests he was not slowing. That might well explain his inability to stop at the red light.
In his submissions, Mr Lemon argued the time setting for the amber light should have been reviewed when the speed limit for the approaching road was reduced from 60 kph to 40 kph. He argued a lower speed meant more time should be allowed for drivers to move through the intersection. However, the traffic engineer gave evidence that a longer amber light would be required for a higher speed environment. She agreed with the proposition put by Chief Magistrate Butler that the lower the speed you expect the vehicles to be travelling, the less time is needed for the vehicle to safely stop and, therefore the shorter the period required for the amber light. If anything, therefore, a reduction in the speed limit from 60 kph to 40 kph would be to his advantage, not his detriment, were he otherwise observing the road rules. There is no prospect of Mr Lemon’s appeal against this conviction succeeding on this argument.
Further, he has failed to identify any error in his Honour’s factual or legal findings or his Honour’s reasoning. He has no prospects of succeeding in his appeal from this conviction and his application to extend time for leave to appeal is refused.
The speeding conviction
Turning to the speeding conviction, Mr Lemon raised two arguments in his Notice of Appeal: that he was not aware the speed limit was 40 kph, which the learned Magistrate took to be a plea of mistake of fact under s24 of the Criminal Code; and that his speeding was excused because it occurred in an emergency situation, pursuant to s25 of the Criminal Code.
The learned Chief Magistrate carefully considered the evidence and Mr Lemon’s arguments on both issues. He concluded that the defence of mistake of fact did not apply to traffic offences of this nature. Mr Lemon did not contest that legal conclusion and I have not considered it further because the learned Chief Magistrate concluded that the defence was, in any case, excluded. He was satisfied on the evidence before him about the position of the speed limit signs prior to the point at which the offence occurred, that Mr Lemon did not both honestly and reasonably believe the speed limit was more than 40 kph.
As to the defence of emergency, his Honour concluded that, even if he were to accept Mr Lemon’s evidence about the circumstances which applied when the offence occurred, they did not constitute an extraordinary emergency within the meaning of s25 of the Criminal Code.
On appeal, Mr Lemon has merely reiterated the arguments made before the learned Chief Magistrate at first instance. He has not identified any error in his Honour’s findings of fact or conclusions as to the law.
There was some suggestion in his material that Mr Lemon wished to raise an argument that the speed limit of 40 kph is unreasonable. This court does not have the function of determining whether a particular speed limit is reasonable.
Mr Lemon has no reasonable prospect of succeeding in his appeal against this conviction and, for that reason, his application to extend time within which to appeal against conviction should be refused.
The sentences
Although only the Notice of Appeal in relation to the speeding offence included an appeal against sentence, both parties proceeded on the basis that he sought an extension of time to appeal against the sentence imposed for both offences.
Each fine imposed upon conviction was limited to the ticketable fine; the amount which applied to uncontested matters.
The only costs awarded were the court costs. The Magistrates presiding on both hearings declined the Respondent’s requests for witness expenses, no doubt on the basis of Mr Lemon’s detailed submissions about his difficult financial circumstances.
Mr Lemon has not raised an argument to suggest that either Magistrate erred in exercising their discretion on sentence. He has no prospect of succeeding on his appeal against the sentences.
Orders
Mr Lemon’s applications for extension of time within which to appeal against conviction and sentence in both matters are refused.
As the Respondent has not sought an order for costs against Mr Lemon, none is made.
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