Lewis v Vanarey

[2012] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Lewis v Vanarey [2012] QDC 91

PARTIES:

Renee Gay Lewis

v

Senior Constable Rory Vanarey

FILE NO/S:

4281/11

DIVISION:

Civil

PROCEEDING:

Application for extension of time for filing notice of appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

11 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2012

JUDGE:

Judge Farr SC

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – the applicant was found guilty of the offence of exceeding the speed limit in the Magistrates Court – the applicant was fined and no conviction was recorded – the applicant sought an extension of time to file a notice of appeal – whether the applicant demonstrated a good reason to account for the delay in the filing of the notice of appeal – whether it would be in the interests of justice to grant the extension

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited
House v R (1936) 55 CLR 499; [1936] HCA 40, cited

R v Tait (1999) 2 Qd R 667; [1998] QCA 304, cited

Criminal Code Act 1899 (Qld), s 25

Justices Act 1886 (Qld), ss 222, 223, 224

COUNSEL:

S D Malcolmson for the applicant

A McGee for the respondent

SOLICITORS:

Paul Clough solicitor for the applicant

The Director of Public Prosecutions for the respondent

Introduction

1. This is an application seeking an extension of time to file a notice of appeal.  The application is opposed. 

1. The applicant was found guilty of the offence of exceeding the speed limit in the Magistrates Court at Brisbane on 24 June 2011.

1. The Magistrate imposed the ticketable amount of $200.00 as a fine as well as ordering the applicant to pay the costs of court, being $74.75 and witness expenses of $45.00.  No conviction was recorded.

1. The notice of appeal was filed on 26 October 2011 and was therefore filed in excess of 3 months out of time.[1]

Circumstances of the offence

[1]Section 222 of the Justices Act 1886 provides that a notice of appeal may be lodged within one month after the date of the order.

1. On 19 August 2010 the applicant, was caught driving at 87 kph along Airport Drive, Eagle Farm in a 70 kph zone.

1. The fact that the applicant was speeding was admitted and the speed recorded was not contested. The applicant raised the defence contained in s 25 of the Criminal Code Act 1899 of extraordinary emergency.

1. There was only one witness on the prosecution case, that being Senior Constable Vanarey.  He gave evidence that he intercepted the applicant and when he asked her how fast she was going she replied, “Probably just above 60.”  When asked by the officer if there was an emergent reason for exceeding the speed limit the applicant did not, at first, reply.  After checking the applicant’s details he again asked the same question.  This time the applicant replied, “I have my period.  I’ve got white pants on.  I am trying to get to the airport to change.”  This conversation was recorded by Snr Const Vanarey by way of a micro cassette recorder.  The recording of that conversation was tended as an exhibit during the trial.

1. Snr Const Vanarey gave evidence that when speaking to the applicant and observing her he noted that she did not appear to be alarmed, anxious, fearful, distressed, confused, grieving or displaying any sense of urgency.  He stated that she was not crying and “she was cool and calm”.

1. There was a male passenger in the vehicle at the time of its interception.

1. Snr Const Vanarey also noted that the position where he intercepted the applicant was opposite a Shell service station. 

1. The applicant gave evidence that on 17 August 2010 whilst in Canberra she returned a positive result for a self administered pregnancy test.  She stated that she and her husband had been trying to fall pregnant since 2007.  She said that prior to that time she had periodically undertaken invitro fertilization (IVF) treatment but at the relevant time was on a break from that treatment. 

1. The applicant said that she returned to Brisbane on 18 August 2010 but did not tell her husband about the positive test result.  She spent that evening at her parents’ home at Burpengary whilst her husband spent the night in Newstead.  She said that she felt unwell later that evening and went to bed after dinner.  At about midnight she went to the toilet and noticed a slight discolouration in her discharge.  She said that she wasn’t too concerned at that stage and went back to bed and slept through to the morning.

1. On the morning of the 19^th she drove to Newstead to collect her husband, and then drove them both to the Brisbane Domestic Airport for the purposes of flying to Hamilton Island.  She had still not told her husband about the positive pregnancy test at that time. 

1. After collecting her husband the applicant drove along Kingsford Smith Drive onto the onramp to the Gateway Motorway.  She said that as she entered the onramp she experienced a gush of blood, and could feel that it was a large amount.  She said that she became very alarmed and stressed because she believed she was having a miscarriage and for that reason she needed to get to the closest toilet.  She said that she knew of the location of a Shell service station which was nearby to the International Terminal but decided to go to the International Terminal as she was familiar with that facility because of her work as a cabin services manager with Qantas.  She admitted that she exceeded the speed limit when travelling along Airport Drive. 

1. The applicant stated that after being intercepted by the police and whilst being spoken to by the police officer she started crying and was wiping tears from her face.  She accepted that she told Snr Const Vanarey that she was having a period and was wearing white pants.  She said that she told him that because it was a private matter and she was embarrassed to talk to a male police officer about the potential of her having a miscarriage at that time.  She also said that as she had not yet told her husband of the pregnancy she did not wish to advise Snr Const Vanarey in her husband’s presence that she suspected she was having a miscarriage. 

1. The applicant called one other witness in her case, that being her General Practitioner, Dr Cherryl Bain.  Dr Bain said that she received a phone call from the applicant at some time on 19 August 2010 during which the applicant told her that she had returned a positive result for a pregnancy test that she had self administered 2 days earlier, but that she had experienced some spotting the previous evening and had suffered bleeding on the day of the phone call.  Dr Bain did not conduct an examination of the applicant and relied solely upon the information supplied to her by the applicant during that telephone call.

1. The applicant said that after receiving the speeding ticket she proceeded to the International Terminal carpark where she attended to herself whilst remaining in the car.  She and her husband then travelled to the Domestic Terminal where she used the toilet facilities.  They then flew to Hamilton Island where they were to spend a number of days together.  It was from Hamilton Island that she made the phone call to Dr Bain.  

1. The applicant said that she was speeding as a consequence of acting under a sudden or extraordinary emergency.

Application for extension of time

1. The court may extend the time for filing a notice of appeal.[2]

   [2] Justices Act 1886 (Qld), s 224(1)(a).

1. In R v Tait[3] the court when considering that issue after having regard to the relevant authorities, confirmed that the correct approach is to examine whether there has been any good reason shown to account for the delay and to assess whether it is in the interests of justice to grant the extension.  The court noted that the period of the delay may be a relevant consideration to that issue as would be the prospects of success of such an appeal (if such a provisional assessment can be made). 

   [3](1999) 2 Qd R 667 at 668.

1. In an affidavit the applicant has explained the delay in the following terms:

   “On Saturday 25 June 2011, the day after the conviction, I travelled overseas with my husband on a holiday that had been pre-booked some five months before.  I was absent from Australia for four weeks.  I was absent from Australia and not in contact with my solicitor during that period. 

   The time limit for the filing of an appeal expired whilst I was overseas or soon after I returned to Australia.

   Upon my return from overseas, I enquired of Mr Clough as to an appeal against the conviction.  I was advised that at that time, I was out of time for an appeal as of right.

   I was advised that an appeal could be lodged out of time but that I would have to have a good reason to do so and succeed.

   I made enquiries regarding the issue of a work licence to drive to work at irregular hours as I work as a cabin services manager with Qantas on various aircraft at various and irregular hours.

   I had in mind acceptance of the conviction and making the most of my having lost the right to drive to and from work as and when it was required.

   The enquiries as to rostering and times took some time, about two to three weeks and again the time given for such an application expired and would have required special leave to achieve a drive to work licence. 

   In about late September, I became aware that criminal convictions could trigger the authorities’ refusing the renewal of my Aviation Security Identification Card (“ASIC”).  This information was in respect of another flight attendant that had been convicted in her capacity as a marriage celebrant and indicated that if I had a criminal conviction for even the most mundane or lower level types of crime, I could be denied the renewal of my ASIC. 

   This alarmed me somewhat and I realised that the conviction was speeding coupled with the earlier speeding tickets culminating in a loss of licence privileges was sufficient to trigger the loss of the ASIC.

   It concerned me that the latest conviction even though it was entered as a “not convicted” was still taken into account in considering the criteria for the issue of an ASIC.

   I became aware in early October 2011 that there was no discretion available to obtain an ASIC for me with criminal convictions to work in my capacity with Qantas.  It was clear to me that if the conviction was not appealed against and I was successful and the conviction was taken into account that I may not be issued an ASIC when I wished to have it renewed in the future. 

   If I am not allowed to hold an ASIC, I cannot work and will lose my work as a cabin service manager which is relatively well paid and permanent work. 

   I decided to request Mr Clough to commence the procedure to lodge an appeal out of time in the District Court about early 14^th October or thereabouts.

   Due to my absences at work at irregular hours, I was unable to attend on Mr Clough at business hours to review documents, provide documents and execute other documents.  The detail was not completed until 24 October 2011. 

   The principal delay for filing on time was that I went overseas immediately after the trial and the 28 days lapsed before I came home.  The secondary delay was occasioned while I considered a drive to work licence and the necessary matters associated.  The tertiary delay occurred when I was enquiring about the likelihood of the loss of my ASIC for my work.  When all the facts were known of my predicament, I moved quickly to institute the appeal as best I could.”

2. In an earlier affidavit the applicant said that sometime after 17 August 2011 she received a notice from the Department of Transport and Main Roads advising of the suspension of her driver’s licence until 27 February 2012.  She said that due to work demands she was unable to contact and seek advice regarding the issue of a work licence until 8 September 2011.  She noted in that affidavit, however, that the time period for making such an application expired on 7 September 2011. 

1. The respondent has submitted that the applicant, in fact, departed Australia for holidays on 26 June 2011 and returned on 19 July 2011, a period of 3 weeks and 2 days.  No evidence has been placed before the court in support of this submission, although I note that no objection was made by representatives for the applicant to such information being placed before the court.  In any event, in my view, little turns upon the issue. 

1. The respondent has also submitted that as a speeding offence is not a criminal offence, details of it would not appear on a criminal history sheet and would not be revealed by a criminal history check.  I agree with that submission, although once again, little turns upon it.

1. In my view the applicant has failed to demonstrate good reason to account for the delay in the filing of the notice of appeal.  Essentially, the applicant has indicated that she only decided to appeal the Magistrate’s decision once she realised that the suspension of her driver’s licence or the finding of guilt may potentially impact upon her work circumstances.  She has provided no explanation as to why she failed to instruct her solicitor to file a notice of appeal prior to or during her overseas holiday.  She has provided no evidence that she was unable to contact her solicitor whilst overseas.  I note also that her solicitor at trial has been retained throughout these proceedings.  Furthermore, the applicant’s evidence as to the enquiries she made upon her return from overseas indicate that she did nothing more than investigate what options may be open to her at that time in relation to a work related licence. 

1. The reasons do not show the applicant had been under any greater disadvantage than any other person in the community in similar circumstances.  In fact, all they do is demonstrate that the applicant gave priority to other things happening in her life at that time over and above the issue of appealing this decision.  In my view, no good reason has been shown to account for the lengthy delay.

Interests of justice

1. An absence of evidence demonstrating a good reason for the delay is not fatal to an application for an extension of time if it would be in the interests of justice to grant the extension.

1. The applicant has submitted that the learned Magistrate had a reasonable doubt in relation to the first limb of s 25 of the Criminal Code but misdirected himself as to the appropriate test to be applied in relation to the second limb. Section 25 states:

   “Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self control could not reasonably be expected to act otherwise.”

2. The grounds of the appeal are:

   1.The learned Magistrate erred in law and fact in his determination of the facts that the appellant’s miscarriage was not an “extraordinary emergency”.

   2.The learned Magistrate erred in law and fact in his determination that the appellant was not criminally responsible for the charge of speeding.

3. The applicant has submitted that the learned Magistrate correctly found that the prosecution failed to prove beyond reasonable doubt that the applicant had not acted under circumstances of sudden or extraordinary emergency, but then misdirected himself when finding that the prosecution had proved beyond reasonable doubt that an ordinary person possessing ordinary powers of self control could reasonably be expected to act otherwise.

1. I do not necessarily agree with the first limb of that submission.  In his decision, the learned Magistrate said, after analysing a number of factual issues which were unfavourable to the applicant:

   “That upon consideration of all those matters that I have mentioned, I am of the opinion that the prosecution – that the defendant has – well, the prosecution has to prove that the – beyond reasonable doubt that the defendant has not act – that is exceeded the speed limit because of the stress of a sudden or extraordinary emergency. 

   Even if the defendant is given the benefit of any doubt in that regard, I would be satisfied beyond a reasonable doubt that her reaction in the circumstances was outside what I could reasonably expect an ordinary person with ordinary powers of self control to do.”[4]

   [4]Judgment p 1-12 L10-31.

2. It seems that the Magistrate, in delivering this ex tempore judgment, may have become a little tongue-tied in that passage. Read alone, that passage contains a degree of ambiguity as to his findings regarding the first limb of s 25. That ambiguity is removed a little later, however, during sentencing submissions when His Honour interrupted the applicant’s solicitor and said:

   “Well, primarily I found that she wasn’t acting under a sudden or extraordinary emergency.”

3. This comment was made in response to a submission to the effect that the applicant’s solicitor had understood that the applicant had been convicted on the basis of having made a wrong choice (as a consequence of the sudden or extraordinary emergency).[5]

   [5]Judgment p 1-14 L22.

1. After that exchange, the Magistrate once again said:

   “But even if I gave her the benefit of that – – – I would find that the ordinary person would have done something different.”

2. The applicant has submitted that by saying things such as, “Even if the defendant is given the benefit of the doubt in that regard” and “But even if I gave her the benefit of that – – …”, the Magistrate has indicated that the first limb of s 25 had not been proved to his satisfaction beyond reasonable doubt. I disagree. In my view, the Magistrate has done nothing more than indicate that the s 25 defence has failed in relation to both limbs.

1. An appeal under s 222 of the Justices Act 1886 is by way of a rehearing on the evidence given in the proceeding before the Justices.[6]  A rehearing may take different forms and generally does not involve actually hearing the entire case again.  In this matter, any such rehearing would involve a thorough examination of the record, an identification of any errors of fact and/or law and the giving of a judgment which ought to have been given in the first instance. 

   [6]Justices Act 1886 (Qld), s 223.

1. Upon my assessment of the record in this matter, I find myself in complete agreement with the learned Magistrate in relation to his finding that the applicant had not acted under a sudden or extraordinary emergency.  The factual matters of relevance to that issue are:

   (a)        The evidence that the applicant was suffering a miscarriage, or at the very least believed that to be the case, at the time of her driving at a speed which exceeded the speed limit came only from the applicant herself.  There was no medical evidence to support that contention.

   (b)        The applicant had failed to advise her husband of the pregnancy notwithstanding that she had been undergoing IVF treatment for three years prior to that point in time and this was her first pregnancy.

   (c)        The applicant, after some hesitation, told Snr Const Vanarey that she was menstruating and needed to get to the International Terminal to attend to herself.  She did not say that she suspected that she was miscarrying at that time.

   (d)        The applicant gave inconsistent accounts of whether her vehicle was on Kingsford Smith Drive or on the onramp to the Gateway Motorway when the bleeding allegedly commenced.

   (e)        The applicant did not tell her husband that she had started to haemorrhage when the bleeding allegedly commenced.

   (f)        The applicant did not seek assistance from Snr Const Vanarey despite the fact that she allegedly believed that she was bleeding heavily at the time.

   (g)        Despite the potential seriousness of her alleged situation, the applicant still caught her flight to Hamilton Island.

   (h)        It was only when she arrived at Hamilton Island that she rang her General Practitioner for advice.  Even then, she failed to advise Dr Bain that she was phoning from Hamilton Island, a rather remote location if one is concerned about a potential medical emergency. 

   (i)         The applicant said in evidence that she had suffered some “spotting” the night before and was, at that time, feeling unwell.  Yet, she did not contact her General Practitioner or any other doctor at that time.

1. These matters in combination, cause me to doubt the applicant’s credibility.  I do not accept that anyone in the applicant’s alleged position would act in those ways.  Furthermore, I note that the learned Magistrate accepted Snr Const Vanarey’s evidence that the applicant did not demonstrate any alarm, anxiousness, fearfulness, distress, confusion, grief or urgency when he spoke to her despite the applicant’s evidence to the contrary.  The Magistrate also rejected the applicant’s evidence that she wiped tears from her eyes whilst speaking to the police officer.  Snr Const Vanarey said that she did not do that in his presence.  In fact, he said that the applicant was “pretty calm and collected in her responses to my questions”.[7]  Additionally, the Magistrate listened to the recording of that conversation and noted that there was no evidence of distress in her voice that he could discern.[8]  I too have listened to that recording and agree with the Magistrate’s assessment, although I concede that I have no basis for comparison as I have never heard the applicant speak on any other occasion.  The learned Magistrate however not only had the advantage of being able to watch and assess the demeanour of the witnesses when they gave evidence, but he could also compare the tone and nature of speech of the applicant on the recording to those features when she gave evidence.  I can see no reason to disagree with the Magistrate’s acceptance of Snr Const Vanarey’s evidence.

   [7]Transcript p 1-15 L30.

   [8]Judgment p 1-8 L10.

1. The relevant evidence from Dr Bain was based almost entirely upon the information supplied to her by the applicant sometime after the speeding ticket was issued.  Consequently, her evidence has no impact upon any assessment of the applicant’s credibility. 

1. Upon consideration of all of the above, I am of the view that the applicant was neither suffering a miscarriage, nor believed that she was suffering a miscarriage at the time she was intercepted by Snr Const Vanarey. Accordingly, I find that the prosecution have proved beyond reasonable doubt that the applicant was not acting under circumstances of sudden or extraordinary emergency. Furthermore, in my view the learned Magistrate did not make any error in his assessment of the facts, or in his application of the law in relation to his consideration of the first limb of s 25. He has not allowed extraneous or irrelevant matters to guide or affect him, nor has he failed to take into account some material consideration.[9]

   [9]House v R (1936) 55 CLR 499 at 505 per Dixon, Evett and McTierman JJ. Also see Allesch v Maunz (2000) 203 CLR 172 at 180 where the appellant must demonstrate that the order the subject of the appeal is the result of a legal, factual or discretionary error.

1. Given that conclusion, it is not necessary to consider the applicant’s argument in relation to the approach adopted by the Magistrate in his application of the second limb of s 25 Criminal Code.

Conclusion

(a)        The applicant has failed to demonstrate good reason for the delay in filing her notice of appeal; and

(b)        It would not be in the interests of justice to grant the extension as the appeal would have little or no prospect of success.

Order

1. The application is dismissed.