Maybir v Bone - [2005] QCA 344

SUPREME COURT OF QUEENSLAND

CITATION:

Maybir v Bone [2005] QCA 344

PARTIES:

CALEB ALEXANDER MAYBIR
(appellant/applicant)
v
SERGEANT MERVYN KENNETH BONE (QLD POLICE)
(respondent/respondent)

FILE NO/S:

CA No 128 of 2005
DC No 63 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2005

JUDGES:

Jerrard and Keane JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time within which to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant convicted of speeding after summary trial in Magistrates Court – applicant was travelling at 73 kph in a 60 kph zone – applicant asserted that the speed limit sign was obscured by foliage – applicant admitted in cross-examination that he had previously known of the 60 kph sign in that position despite alleged obscurity – appeal against conviction to the District Court dismissed – whether applicant had any prospects of success on appeal so as to justify a grant of extension of time

Traffic Regulation 1962 (Qld), s 210
Transport Operations (Road Use Management) Act 1995 (Qld), Ch 5, Pt 7, Pt 8
Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 20, s 21, s 25, s 315, s 316, s 322, Sch 6

COUNSEL:

Applicant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: Mr Maybir has applied for an extension of time within which to apply under s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal against a judgment of the District Court given on 4 October 2004. That judgment dismissed an appeal by Mr Maybir from a conviction after a summary trial in the Brisbane Magistrates Court on a charge of speeding. That conviction was on a charge alleging that on 14 June 2003 at Morningside he drove a motor vehicle at a speed over the speed limit, namely 60 kph, applying to the driver for a length of road, namely Lytton Road, Morningside where Mr Maybir was driving. Various other formal matters were alleged, irrelevant to this application; Mr Maybir was fined $150 and ordered to pay $65.60 costs of court, in default of three days imprisonment, and allowed five months to pay. His appeal against that conviction was dismissed, and the learned District Court judge ordered that each party bear their own costs of that appeal.

The prosecution case

The prosecution evidence before the Magistrate was given by way of certificates and photographs, which were collectively made exhibit 1 in…

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 Maybir v Bone

Details

AGLC: Maybir v Bone [2005] QCA 344
Case: [2005] QCA 344
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the matter of Maybir v Bone, the applicant, Maybir, sought an extension of time to appeal against his conviction for speeding, which was dismissed in the District Court. Maybir was caught travelling at 73 kph in a 60 kph zone. He asserted that the speed limit sign was obscured by foliage, an argument that was unsuccessful at trial. Maybir further admitted during cross-examination that he had previously known of the 60 kph sign in that position, despite the alleged obscurity. The legal issue before the court was whether Maybir had any prospects of success on appeal so as to justify a grant of an extension of time.

The court considered the criteria for granting an extension of time for an appeal, focusing on the prospects of success on appeal. The court noted that Maybir's primary contention was the obscurity of the speed limit sign, an argument that was previously rejected by the Magistrates Court. The court found that the obscurity argument lacked merit as Maybir himself admitted to knowing of the speed limit sign in that location. Furthermore, the court found that the applicant had not demonstrated any new evidence or legal argument that would likely result in a different outcome on appeal. The court concluded that Maybir had no reasonable prospects of success on appeal.

As a result, the application for an extension of time to appeal was dismissed. The court held that the applicant had not provided sufficient grounds to justify an extension of time, and therefore, the appeal against the conviction for speeding would not proceed. This decision underscores the stringent requirements for obtaining an extension of time in appeals, particularly when the prospects of success are minimal.

Orders

Orders of the court

Application for extension of time within which to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Maybir v Bone [2005] QCA 344
PARTIES:	CALEB ALEXANDER MAYBIR (appellant/applicant) v SERGEANT MERVYN KENNETH BONE (QLD POLICE) (respondent/respondent)
FILE NO/S:	CA No 128 of 2005 DC No 63 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2005
JUDGES:	Jerrard and Keane JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant convicted of speeding after summary trial in Magistrates Court – applicant was travelling at 73 kph in a 60 kph zone – applicant asserted that the speed limit sign was obscured by foliage – applicant admitted in cross-examination that he had previously known of the 60 kph sign in that position despite alleged obscurity – appeal against conviction to the District Court dismissed – whether applicant had any prospects of success on appeal so as to justify a grant of extension of time Traffic Regulation 1962 (Qld), s 210 Transport Operations (Road Use Management) Act 1995 (Qld), Ch 5, Pt 7, Pt 8 Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 20, s 21, s 25, s 315, s 316, s 322, Sch 6
COUNSEL:	Applicant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent