Mould v Newland - [2001] QCA 211

[2001] QCA 211

COURT OF APPEAL

THOMAS JA
HELMAN J
ATKINSON J

Appeal No 371 of 2000

REBECCA ELIZABETH MOULD Respondent

and

STEVEN NEWLAND Applicant

BRISBANE

..DATE 31/05/2001

JUDGMENT

HELMAN J: This is an application under s.118 of the District Court Act 1967 for leave to appeal against a decision of a District Court judge handed down on 6 December 2000.

The applicant, Sergeant Steven Newland of the Indooroopilly Traffic Branch of the Queensland Police Force, brought a charge against the respondent under s.79 of the Transport Operations (Road Use Management) Act 1995 which was heard in the Brisbane Magistrates Court on 7 April 2000. The respondent was charged that on 26 March 2000 at Brisbane she, while under the influence of liquor or a drug, drove a motor vehicle on Hale Street, Brisbane. She pleaded guilty. She had been driving a motor car in Hale Street when she was stopped for a random breath test and was found to have a concentration of alcohol in her blood of 192 mg of alcohol per 100 ml of blood. After hearing full submissions on the appropriate sentence the presiding stipendiary magistrate convicted the respondent of the offence, fined her $1,000, disqualified her from holding or obtaining a driver's licence for ten months and exercised the discretion provided for in s.12 of the Penalties and Sentences Act 1992 by not recording a conviction.

That discretion was considered in R v. Brown, ex parte Attorney-General [1994] 2 Qd.R. 182. In that case the Attorney-General unsuccessfully appealed against an order that no conviction be recorded against a young man
twenty-three years old who had no prior convictions and who was, following a trial, convicted of dangerous driving causing death. Two people had been killed in the collision that gave rise to the charge against him. The dangerous element in his driving had been excessive speed.

In this case the respondent is a young woman who was
twenty-one years old when she committed her offence. She had no prior convictions and she pleaded guilty soon after being charged. She had, shortly before the hearing in the Magistrates Court, begun work as a clerk articled to a solicitor. His Worship accepted a submission made to him on her behalf that a recorded conviction could affect her chances of obtaining the consent of the Solicitors' Board to her entering into articles of clerkship.

The applicant appealed against the decision of the magistrate to a judge of the District Court under s.222 of the Justices Act 1886 on the ground that an error had been made by the magistrate in ordering that no conviction be recorded. His Honour was unable to detect any error in the way in which the discretion had been exercised and accordingly dismissed the appeal. The applicant now seeks to come to this Court to re-open yet again the question whether a conviction should have been recorded against the respondent.

Subsection 12(2) of the Penalties and Sentences Act provides:

"(2) In considering whether or…

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 Mould v Newland

Details

AGLC: Mould v Newland [2001] QCA 211
Case: [2001] QCA 211
Decision Date: 31/05/2001

CaseChat Overview and Summary

The Court of Appeal heard an application by Steven Newland for leave to appeal against a decision of a District Court judge in a matter concerning a charge against Rebecca Elizabeth Mould under section 79 of the Transport Operations (Road Use Management) Act 1995. Mould was charged with driving under the influence of alcohol on 26 March 2000 at Brisbane. Mould pleaded guilty and was found to have a blood alcohol concentration of 192 mg of alcohol per 100 ml of blood. She was fined $1,000, disqualified from holding or obtaining a driver's licence for ten months, and the magistrate exercised the discretion under section 12 of the Penalties and Sentences Act 1992 not to record a conviction. Newland, a Sergeant of the Queensland Police Force, appealed to the District Court under section 222 of the Justices Act 1886, which was dismissed. Newland now seeks leave to appeal to the Court of Appeal.

The legal issues in the case include whether the magistrate erred in exercising the discretion not to record a conviction under section 12 of the Penalties and Sentences Act 1992 and whether there is an error on an important point of principle which, if not corrected, could lead to error in other cases. The court considered whether the District Court judge's decision contained any obvious error or imbalance and whether the point under review, namely the exercise of discretion not to record a conviction, is a discretionary one. The court also considered whether there is any obvious injustice that the Court of Appeal is called upon to redress.

The Court of Appeal refused the application for leave to appeal. Justice Helman held that the District Court judge presented a reasoned judgment which contains no obvious error or imbalance and that there is no valid reason for permitting the appellant a further appeal. Justice Thomas agreed with the reasons given by Justice Helman and suggested that the application be refused. Justice Atkinson also agreed with the reasons given by Justices Thomas and Helman and with the view expressed by the President in Riordan v. Grohl, CA No 152 of 2000 at page 6 where her Honour said: "On the facts of this case the discretion could have been validly exercised either way but the applicant has not demonstrated any reason to justify the granting of leave to appeal in this case." The Court of Appeal concluded that the application should be refused.

The order of the Court is that the application is refused and the applicant is to pay the costs to be assessed.

Orders