Meade v Commissioner of Police

[2010] QDC 309

[2010] QDC 309

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE NEWTON

Appeal No 668 of 2008

LUKE SIMON MEADE	Appellant
and
COMMISSIONER OF POLICE	Respondent

SOUTHPORT

..DATE 02/02/2010

ORDER

HIS HONOUR:  The appellant in this matter is charged that on
the 13th day of April in 2008 at Bonogin in the Magistrates
Courts District of Gold Coast in the State of Queensland he,
being the driver of a motor vehicle, namely a Nissan motor
car, on a road, namely Bonogin Road, Bonogin, in an incident
involving injury to a person, namely Jason Lindsay Thomas,
failed to remain at or near the scene of the incident and
immediately render such assistance as he can to Jason Lindsay
Thomas.

Further, that he showed a callous disregard for the needs of
the said Jason Lindsay Thomas.  It was averred that the said
Nissan motor car is a motor vehicle as defined in schedule 4
of the Transport Operations (Road Use Management) Act 1995 and
it was averred that the said Bonogin Road is a road as defined
in schedule 4 of the Transport Operations (Road Use
Management) Act 1995.

The appellant, who was legally represented in the lower Court,
entered a plea of guilty to the charge on 3 December 2008.  He
was convicted and sentenced to eight months' imprisonment to
be suspended after six weeks for an operative period of two
years and was disqualified from holding or obtaining a
driver's licence for a period of two years.

The facts relied upon by the prosecution as placed before the
Magistrate by the Police Prosecutor were not capable of
supporting the charge.  The Police Prosecutor informed the
Magistrate that it was not known and would probably never be
known whether Mr Thomas was already deceased at the time he
was struck by the vehicle being driven by Mr Meade.  It
therefore could not be established that the appellant,
Mr Meade, was the driver of the motor vehicle as charged in an
incident involving injury to Mr Thomas.

Notwithstanding that the material placed before him was
insufficient to establish the charge, the Magistrate proceeded
to convict Mr Meade and to impose penalty upon him.  In fact,
in imposing the sentence which was imposed the Magistrate fell
into further error because the sentence imposed was not one
open to the Court to impose in the circumstances.

Mr Mitchell, who appears on behalf of the respondent at the
hearing of this appeal, has very properly conceded the error
made by the Magistrate both in proceeding to sentence in the
manner in which he did and also, as I understand Mr Mitchell's
submissions, in allowing the plea of guilty to stand in
circumstances where the material was not capable of supporting
the charge.

In fact, the police were in possession of material in the form
of medical reports which established or at least suggested
that at the time Mr Meade's vehicle struck him Mr Thomas was
still alive, but passed away shortly after the collision.  Why
this material never found its way to the Prosecutor's brief is
explained by a statement from a police officer who was in
possession of this material, but who thought that it was not
relevant because it did not go to any element of the charge.

That view was plainly mistaken.

The question now is what is to be done with the matter.
Mr Mitchell has at least foreshadowed that should the matter
be remitted to the Magistrates Court, an application will be
made to adduce the evidence contained in the medical reports
that was withheld from the original prosecution brief.  Of
course, at this stage the representatives for the appellant,
Mr Meade, have not had an opportunity of considering this
material and deciding whether to challenge it or contradict
it.

In the course of submissions I had occasion to refer to the
Court of Appeal decision, The Queen v GV [2006] QCA 394. I
will not repeat in detail what I read from the judgment of the
Court of Appeal during submissions beyond referring to
paragraph 40 at page 10 of the report where the Court stated:

"When it became apparent to the Judge that the facts on which
he was being asked to sentence the applicant showed that he
had, at least arguably, a complete defence to the charge, the
Judge should have directed that a plea of not guilty be
entered in place of the plea of guilty."

It seems to be agreed by both counsel for the appellant,
Mr McNab, and the advocate for the respondent, Mr Mitchell,
that, in the circumstances, this Court should order that the
matter be remitted to the Magistrates Court to be dealt with
by a Magistrate other than the Magistrate who imposed the
sentence on the third of December 2008.

I am prepared to accede to that course and leave it to the
Magistrate before whom the matter is listed to consider
whether the prosecution should be granted leave to adduce
additional evidence in the form of the medical material that
was available at the time of the sentencing but which was not
placed before the Court.

If it be decided by the Magistrate that such material should
be admitted then no doubt the matter will be adjourned to
enable the legal representatives of Mr Meade to consider the
material and to decide what to do about it.  I simply point
out at this stage that that material is not fresh.  It was
plainly in the custody or the possession of the police at the
time of the hearing in the lower Court.

Furthermore, to permit that material now to be led would
obviously be extremely prejudicial to the appellant who has
been under threat of having a sentence of imprisonment ordered
to be served for some I think 18 months now, slightly less
than that.  However, the passage of time since the post mortem
is such that the ability of Mr Meade's legal representatives
to mount a meaningful challenge to that evidence remains to be
determined.

In any event, it is clear that the appeal should be allowed
and the matter remitted to the Magistrates Court for hearing
by a Magistrate other than the Magistrate who imposed the

sentence.  I so order.

Does that cover things from your point of view, Mr McNab?

MR McNAB:  Just a procedural matter, your Honour.  I
understand the appeal has been upheld, but would your Honour
specifically set aside the orders of the Magistrate because it
has the ramifications of the disqualification that he's been
under and perhaps even the original sentence.  I know it's
only procedural, but it's more particular for the
disqualification period as the matter's going to be
determined, one would foresee, afresh in the Magistrates
Court.

HIS HONOUR:  What do you say, Mr Mitchell?

MR MITCHELL:  In all of the circumstances, your Honour, I
can't oppose my friend's application.

HIS HONOUR:  But as a procedural matter in appeals of this
nature, as I understand it, the disqualification order would
remain until the matter was determined.

MR MITCHELL:  Just one moment, your Honour.

MR McNAB:  That's my understanding in relation to the stay of
various orders and it's very narrow of orders that are stayed,
your Honour.  However, my submission is as the appeal has been
determined now and your Honour has upheld the appeal------

HIS HONOUR:  Well, the appeal has been determined in one
sense.

MR McNAB:  That's right.

HIS HONOUR:  But it has only been determined by remitting it
to the Magistrates Court to finalise the prosecution.

MR McNAB:  That's correct, your Honour, and my submission in
relation to that is that it - when it goes back to the
Magistrates Court the appellant could very well enter a plea
of not guilty.

HIS HONOUR:  A plea of?

MR McNAB:  Not guilty or guilty.

HIS HONOUR:  Yes.

MR McNAB:  And that's the case he's back to the starting point
again, your Honour, as if the Magistrate's original order had
not been imposed at that juncture so it's my submission, your
Honour, your Honour could make------

HIS HONOUR:  Well, the other point, of course, is simply this:
that the sentence imposed by the Magistrate was not imposed in
a lawful manner because the sentence of imprisonment that was
imposed could not lawfully have been ordered.

MR McNAB:  That's correct, your Honour.

HIS HONOUR:  That part of the sentence relating to
disqualification was open to the Magistrate, but it seems to
me, I think, that if the sentence imposed was not imposed
according to law the whole sentence should be set aside.

MR McNAB:  That's correct, your Honour, and as your Honour
indicated during submissions, it's really a matter having the
plea of guilty set aside having regard to the factual matrix
that was presented to the Magistrate.  I can't take that point
any further, your Honour.

HIS HONOUR:  I think in the circumstances I should add to my
orders a further order that the orders made by the Magistrate
on the third of December 2008 are to be set aside.

MR McNAB:  Your Honour, just another procedural matter.  He is
before this Court on appeal bail.

HIS HONOUR:  Yes.

MR McNAB:  Would your Honour be minded granting a fresh
undertaking back to the Magistrates Court.

HIS HONOUR:  That will have to be done, I suppose.  He'll have
to sign a fresh undertaking.

MR McNAB:  That's right.  My submission is, your Honour, bail
on his own undertaking.

HIS HONOUR:  Do you have any objection to bail continuing,
Mr Mitchell?

MR MITCHELL:  No objection to bail continuing on the current
conditions, your Honour.

MR McNAB:  Your Honour, he has that one day reporting
condition.  I ask that that be removed.  He has been reporting
for 14 months.

HIS HONOUR:  What do you say about the reporting condition?

MR MITCHELL:  Your Honour, I would ask that the current
conditions remain.  There is no------

HIS HONOUR:  Where does he live?

MR McNAB:  He lives at Tweed Heads at the moment, your Honour,
and, as I understand it, he's been reporting to Beenleigh one
day a week.

HIS HONOUR:  Can't he report to Coolangatta?

MR McNAB:  Perhaps.

HIS HONOUR:  That's probably more convenient for him.

MR McNAB:  If your Honour orders reporting I know Coolangatta
is an eight to four.  My instructing solicitor is just
checking his work hours.  If your Honour grants bail with a
reporting condition perhaps to the officer in charge of police
at Coolangatta or to any other such police officer as that
officer directs in writing, I think is the usual wording.
I've just been instructed that Beenleigh is fine.  He works up
that way, your Honour, so if we could leave it at Beenleigh.

HIS HONOUR:  Bail will be extended on present conditions.

MR McNAB:  Thank you, your Honour.  One final matter, your
Honour.  Would your Honour consider a matter of costs?  Of
course it is a discretionary matter, your Honour, and it is -
the defendant's before the Court because of errors in law
applied by the Magistrate and also because of the lack of
diligence.

HIS HONOUR:  Well, what concerns me is that the Magistrate
received far less assistance from both defence and prosecution
than I would have thought he was entitled to.

MR McNAB:  Absolutely, your Honour.  I can't take that point
any further.

HIS HONOUR:  I think this predicament has come about at least
partly because of defence counsel's conduct.

MR McNAB:  In the Magistrates Court, your Honour.

HIS HONOUR:  In the Magistrates Court.

MR McNAB:  Thank you, your Honour.

HIS HONOUR:  Certainly not in this Court. In the circumstances, I will not make any order for costs.

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