Michael John Myers Appellant v Commissioner of Police
[2025] QDC 171
•24 MARCH 2025
[2025] QDC 171
DISTRICT COURT OF QUEENSLAND
KENT KC DCJ
Indictment No 2072 of 2024
MICHAEL JOHN MYERS Appellant
v
COMMISSIONER OF POLICE Respondent
BRISBANE
MONDAY, 24 MARCH 2025
JUDGMENT
HIS HONOUR: This matter is an appeal by Mr Myers against his conviction in the Magistrates Court at Beaudesert on the 18th of July 2024. He filed the notice of appeal within time, and has forwarded an email to the registry, which is being treated for the purposes of the appeal as an outline of argument. Before I go further, I think what I should do is arrange for Mr Myers’ medical certificate that was emailed in to be printed out and placed on the file, and I think it probably should be marked as Exhibit 1 on the appeal.
MS DINNEN: Yes, your Honour.
HIS HONOUR: Okay.
MS DINNEN: I should have a copy here if your Honour ‑ ‑ ‑
HIS HONOUR: If you have got a hard copy, that will be helpful.
MS DINNEN: Sorry, your Honour. I thought I had printed some copies, but I ‑ ‑ ‑
HIS HONOUR: Okay.
MS DINNEN: ‑ ‑ ‑ only printed the email. I apologise.
HIS HONOUR: We can print one out and put it on the file. As I was saying, Mr Myers appealed within time to this court against conviction only. As identified by Ms Dinnen in her outline, as best interpreted, that outline by the appellant complains of events which he says led to a miscarriage of justice at the trial, and he goes as far as alleging intentional misleading by the police prosecution and the magistrate.
The occurrence which gave rise to these complaints is the production by the prosecution and the tendering without objection of three photographs during the hearing of the evidence at the trial. They were marked as separate Exhibits, 4, 5 and 6, and displayed relevantly a photograph of the police Raptor RP-1 radar display screen showing the appellant’s speed at the relevant time to have been 131 kilometres an hour, and two other photos of evidence of the correct working and accuracy of that radar device; Exhibit 5, being a calibration label; and Exhibit 6 being a label attesting to a speedometer accuracy test, having been previously performed.
When those photographs were produced by the prosecution at the trial, Mr Myers objected to it, saying that he had not been given them previously. There was much discussion and argument about that issue back and forth at the trial. Eventually, the magistrate’s ruling which, in my conclusion was amply justified on the evidence, was that in no sense were those three photographic images, to use the appellant’s term, fresh evidence. They had been disclosed to him as part of the digital recordings on a DVD, which had been given to Mr Myers prior to the commencement of the trial.
Mr Myers was repetitive and somewhat strident in denying that he had ever been given those digital copies, but as best myself and Ms Dinnen for the prosecution can ascertain, Mr Myers has never explicitly said that he looked through the contents of the DVD, which he admitted he had been given, to ascertain whether those digital photographs were present or not. The evidence of the police witness and the submission by the police prosecutor were both directly to the point that those images were on the DVD.
What Mr Myers was convicted of was speeding, namely, driving at a speed more than 100 kilometres per hour. The evidence of the police officer, which proved that offence, was uncontested. Mr Myers did not give evidence. Indeed, on a body worn camera recording made by the police officer of his interactions with Mr Myers, Mr Myers accepted that he was speeding, at least, to the extent of 110 kilometres per hour. That kind of concession was repeated at the trial.
The elements of the relevant offence do not require the prosecution to prove that he was speeding at 131 kilometres per hour. They merely had to establish beyond a reasonable doubt that he was speeding at more than 100 kilometres per hour. That is a fact which, as I have said, is common ground and the result is that there was simply no element of the offence in issue between the parties at the trial, nor is there on appeal.
Understood in that context, the complaints about possible late delivery of those three photographs which in any case, as I note, the magistrate correctly found against Mr Myers on is, indeed, something of a side issue or distraction. Those three exhibits, already findings turning on them, were of interest at the trial, but they were by no means essential to the success of the prosecution case. The prosecution would have been entitled to simply point to the body worn camera recording where Mr Myers admitted doing 110 kilometres per hour. The result is that the prospects of Mr Myers succeeding on appeal are vanishingly small to the extent of being, in my assessment, in truth, non-existent.
As Ms Dinnen points out, Mr Myers was aware of today’s hearing date, both because he was previously notified of it and because consequent upon a mention of this matter last week, it has been recommunicated to him. I have had his name called and he has not attended. That invokes the jurisdiction in section 229(3) of the Justices Act, where an appellant who fails to appear is liable to have the Judge strike out the appeal on proof of notice of the hearing having been sent to his address for service at least 10 days before the date of the hearing. Do you know if that was explicitly done, Ms ‑ ‑ ‑
MS DINNEN: Yes, your Honour. At the date that it was listed, which is back on the 31st of January, there’s an email from the District Court Appeals List Manager to the parties with a notice appearing.
HIS HONOUR: Okay. Do you mind tendering that?
MS DINNEN: Yes. And I have the actual notice as well that I can attach to that.
HIS HONOUR: So that email with the form of Notice of Listing for hearing collectively will be Exhibit 1 on the appeal.
MS DINNEN: Sorry, your Honour. What exhibit did you say, Exhibit 2?
HIS HONOUR: Have I already marked the certificate?
MS DINNEN: Yes.
HIS HONOUR: Have I?
MS DINNEN: Yes.
HIS HONOUR: Okay.
MS DINNEN: Thank you.
HIS HONOUR: Sorry. So that will be Exhibit 2.
EXHIBIT #2 ADMITTED AND MARKED
HIS HONOUR: The genesis of Exhibit 1 I will return to. After the mention of this matter last week, Ms Dinnen has been in communication with Mr Myers, and I am comfortably satisfied that he is aware of today’s hearing. He was notified of it in court on 31st of January by the notice, which is evidenced in Exhibit 2, and apparently, also by communications following last week’s mention.
What has happened in the lead-up to today’s hearing date is that my Associate has been in contact with the parties by email as to the conduct of the appeal. That provoked an email from Mr Myers, essentially, saying that he was unwell and unable to attend and seeking what he described as an urgent adjournment. Relevant to that email application, he attached a doctor’s certificate from the Beaudesert Family Practice certifying that he is receiving medical treatment for a possible flare-up of Crohn’s disease for the period, 23rd to 25th of March 2025 inclusive, and so was unfit to attend court, this certificate having been completed on the 23rd of March, that is, Sunday, yesterday. As apparently I have already said, that a hard copy [indistinct] certificate be Exhibit 1 on the hearing of the appeal.
So I have had Mr Myers’ name called and there is no attendance, which is not surprising. Previous transcripts, including of the 18th of November 2024, indicate that previously Mr Myers was able to take part in some court hearings by telephone. Attempts were made to contact him by telephone this morning and the result is that the number has been disconnected.
It is against that background that the discretion in section 229(3) falls to be decided. There is no doubt that the relevant preconditions are made out to found the jurisdiction to strike out the appeal. One relevant consideration, it seems to me, in the exercise of that discretion is the appellant’s prospects of success on appeal. It is likely that – Mr Myers’ certificate being presently uncontested – he has what would otherwise be a reasonable basis to ask for the appeal to be adjourned. In previous court appearances, he has commented more than once on his various health conditions and they include Crohn’s disease and, indeed, at the hearing of the trial before the Magistrates Court, he had the matter stood down for a while because of symptoms of Crohn’s disease he was suffering at that stage. That is, of course, amongst other things emblematic of the proposition that the trial was fairly conducted in the Magistrates Court.
So there is no real reason to doubt the validity of the certificate and the fact that he is likely unfit to take part today in the appeal. Nevertheless, the jurisdiction under section 229(3) is broad, and is only really confined by the two essential factors of failure to appear and proof that the relevant notice was given.
It seems to me in exercising that discretion that a relevant feature is the appellant’s prospects of success on appeal. The deciding factor in refusing the adjournment is that Mr Myers’ prospects of appeal on all of the material before me are non-existent. That means that the exercise of adjourning the hearing of the appeal to another day, involving as that does, delay an expense for the parties would be futile and of no utility whatever.
The reason for that conclusion is, as I have hopefully set out, all of the elements of the offence proven against Mr Myers in the Magistrates Court were common ground. There is simply nothing in issue between the parties that could lead to any conclusion that Mr Myers has any prospects of success on appeal. The magistrate considered his complaints about what he said was late delivery of the contested photographs and found against him on a basis that was perfectly open to the magistrate on the evidence. There is no reason to doubt that conclusion.
But further, as I think I have already said, that issue was not central to the merits of the hearing. With or without the photographs, the prosecution could comfortably satisfy its burden of proof beyond reasonable doubt that Mr Myers was speeding at the time and place alleged by the prosecution. It was simply common ground. Again, he admitted in body worn camera recorded footage doing 110 kilometres per hour in a hundred-kilometre zone.
There is simply nothing in Mr Myers’ outline of submissions that gives rise to any issue, which has any prospect of success on an appeal of this kind. Of course, I take into account the nature of the jurisdiction being exercised under section 222 and guiding principles for such an appeal by rehearing, including in authorities such as McDonald v Commissioner of Queensland Police.
My conclusion is that there being absolutely no utility in adjourning the matter for a further hearing of the appeal, that Mr Myers’ application for an adjournment should be dismissed, and the result is that pursuant to section 229(3), the appeal is struck out. Ms Dinnen, I take it from what has been said previously, you do not seek costs?
MS DINNEN: No, your Honour.
HIS HONOUR: Okay. So are there any other orders necessary?
MS DINNEN: Would your Honour require me to seek leave to read my outline of submissions for the purpose of this hearing?
HIS HONOUR: Well, you probably do not need leave, but I took them as being read, but anyway ‑ ‑ ‑
MS DINNEN: Thank you.
HIS HONOUR: ‑ ‑ ‑ you read them.
MS DINNEN: Thank you.
HIS HONOUR: And the other material – well, there has been two exhibits now. But I must say I was taking the two transcripts ‑ ‑ ‑
MS DINNEN: Yes.
HIS HONOUR: ‑ ‑ ‑ as being part of the appeal record.
MS DINNEN: I can tender those ‑ ‑ ‑
HIS HONOUR: Okay.
MS DINNEN: ‑ ‑ ‑ if it would assist your Honour.
HIS HONOUR: So there is a transcript of the trial and the transcript of the sentencing remarks, and they can be collectively Exhibit 3.
EXHIBIT #3 ADMITTED AND MARKED
MS DINNEN: Thank you.
HIS HONOUR: I suppose the exhibits should be tendered as well, should they not?
MS DINNEN: I do have a copy ‑ ‑ ‑
HIS HONOUR: Actually, no, it might not be necessary, because they are probably part of the file.
MS DINNEN: Yes.
HIS HONOUR: I do not know if the transcripts were or not, but anyway. So I just note that the Magistrates Court file, which is now part of the file for the appeal in this court, did contain an exhibit list with eight exhibits.
MS DINNEN: Thank you.
HIS HONOUR: Okay. Thanks for your help.
MS DINNEN: Thank you.
0
0
0