Myler v Commissioner of Police

[2009] QDC 132

[2009] QDC 132

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE TUTT

No 589 of 2009

THOMAS FRIEDRICH MYLER	Appellant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 20/04/2009

ORDER
HIS HONOUR: In the matter of an appeal by Thomas Friedrich

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Myler and Scott Michael McSweeney, the nominated respondent,
the respondent concedes that the Magistrate at first instance
erred in law in making a global order in respect of each
offence to which the appellant ("defendant") pleaded guilty

and therefore the question arises as to whether I should remit	10
the matters to the Magistrates Court to be dealt with further according to law.
In addition, there is a further matter which the appellant
wishes to raise in the sentencing hearing by way of further	20
material which will necessitate his obtaining a medical report so far as his personal matters are concerned.
The respondent formally opposes that course and indicates that
the matter could be dealt with adequately by this Court but it	30
seems to me that if I do that I would have to adjourn the appeal, assuming I granted the appellant leave to adduce further evidence, which I am entitled to do under section 223(2) of the Justices Act 1886.
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On balance, it seems to me that the sensible course is to
accede to the appellant's submission and grant the order that
the appeal be allowed as well as subsequent orders referred to
in the draft which has been handed to me, so that the
Magistrate at first instance can review all matters afresh in	50

the light of further evidence that is to be adduced and then
make his decision as to the appropriate penalty to be imposed
in respect of each offence.
So in the circumstances, I am prepared to allow the appeal, in 1-2 ORDER 60

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a formal sense, and order in terms of the draft which has been
handed to me and which I have initialled and left with the
file. That order contains the subsequent orders apart from

allowing the appeal; namely:

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2. That pursuant to section 225(2) of the Justices Act the

matter be remitted to the Magistrates Court at Brisbane to be
dealt with according to law;
3. That the respondent pay the appellant's costs fixed in

the amount of $1,500.00;	20
4. The respondent be granted an indemnity certificate under section 15(2) of the Appeal Costs Fund Act 1973 and 5. That the appellant be admitted to bail on his own undertaking.
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They will be the orders of the Court.

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1-3 ORDER 60