McGlade v Rolph - [2005] QDC 367

[2005] QDC 367

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No BD850 of 2005

BEN McGLADE	Appellant
and
SHAYNE GERARD ROLPH	Respondent

BRISBANE

..DATE 07/11/2005

ORDER

CATCHWORDS: Justices Act s.222 - appeal to District Court from Magistrate's recording of convictions of final-year law student of four "traffic" offences, one of which was failure to stop a vehicle for a prescribed purpose under s.51 of the Police Powers and Responsibilities Act - appellant unrepresented at sentence - it did not appear that the Magistrate was asked to or did consider not recording convictions - appeal allowed only to extent that no conviction be recorded for the s.51 matter.

HIS HONOUR: This is an appeal under section 222 of the Justices Act against sentences imposed by a Magistrate on 22nd of February this year, consequent upon the appellant's pleading guilty to four offences that occurred shortly after midnight on the 1st of January this year, a time which may very well form a good part of the explanation of what happened.

The offences were: driving whilst under the influence of liquor under section 79 of the Transport Operations (Road Use Management) Act 1995; an offence of unlicensed driving under section 78; an offence of failing to stop at a red traffic light under section 56 of the associated Road Rules Regulation 1999; and finally, an offence of failure to stop a vehicle for a prescribed purpose under section 51 of the Police Powers and Responsibilities Act 2000.

I accept, on the basis of the inherent likelihood of it, Mr Brennan's statement from the Bar table, that when Mr McGlade, who was self represented, took some advice from the duty solicitor at the Magistrates Court, which may have happened the previous day, he was told that all four matters were traffic matters with which the duty solicitor would have nothing to do.

That is an erroneous categorisation, although understandable

in the circumstances in respect of the Police Powers and Responsibilities Act offence which Mr Brennan has asserted, without attracting any resistance from Mr Hungerford-Symes, gives his client a criminal record of a different kind from his traffic history.

Unfortunately, the now 21 year old appellant, who is in the final year of his law degree, has both. On 28th of January, 2003 he was fined $75 and $50 respectively for an offence under the Police Powers and Responsibilities Act of obstructing a police officer on the 27th of November, 2002, and an offence under the Vagrants Gaming and Other Offences Act of using insulting words on the following date. It may well be those two matters were aspects of the same event. No conviction was recorded.

The appellant has a traffic history commencing on the 3rd of March 2002 with a speeding offence. There were similar offences in each of the next two months, leading to his finding himself on a "good driving behaviour period". The next speeding offence occurred in May 2003, followed a couple of months later by an offence of…

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 McGlade v Rolph

Details

AGLC: McGlade v Rolph [2005] QDC 367
Case: [2005] QDC 367
Decision Date: 07/11/2005

CaseChat Overview and Summary

In the case of McGlade v Rolph, the appellant, Ben McGlade, appealed against sentences imposed by a Magistrate on February 22, 2005, following his guilty pleas to four offences. These included driving while under the influence of alcohol, unlicensed driving, failing to stop at a red light, and failing to stop a vehicle for a prescribed purpose under the Police Powers and Responsibilities Act 2000. McGlade, a final-year law student, was unrepresented at the sentencing and it did not appear that the Magistrate considered whether or not to record the convictions. The appeal sought modification of the Magistrate's orders to prevent the recording of convictions for all four offences, with a particular focus on the offence under the Police Powers and Responsibilities Act.

The court examined whether the Magistrate exercised his discretion correctly in recording the convictions, particularly in light of McGlade's status as a final-year law student and his previous convictions under the Police Powers and Responsibilities Act. The court acknowledged that for someone in McGlade's situation, the recording of a conviction could significantly impact his future prospects, including admission to the legal profession and international travel. The court found that while the Magistrate did not consider the implications of recording a conviction for the Police Powers and Responsibilities Act offence, the discretion in respect of the traffic offences was not miscarried.

The court concluded that it was open to exercise its discretion in the matter, and accordingly, it allowed the appeal only to the extent of not recording a conviction for the Police Powers and Responsibilities Act offence. The court emphasised that this did not absolve McGlade of the obligation to disclose the matter to the relevant Board when applying for admission as a legal practitioner. The court's decision was thus to leave convictions recorded in respect of the traffic matters but not to record a conviction in respect of the Police Powers and Responsibilities Act matter.

Orders