Payard v Lawn

[2010] QDC 434

DISTRICT COURT OF QUEENSLAND

CITATION:

Payard v Lawn [2010] QDC 434

PARTIES:

Jeffery Payard
(Appellant)

And

Travis Jake Lawn
(Respondent)

FILE NO:

334 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 Justices Act

ORIGINATING COURT:

Magistrates Court in Townsville

DELIVERED ON:

12 November 2010

DELIVERED AT:

District Court in Townsville

HEARING DATE:

8 November 2010

JUDGE:

Baulch SC DCJ

ORDERS:

Appeal allowed.

Orders of the Magistrates Court at Townsville on 27 November 2009 set aside.

Matter remitted to the Magistrates court for re-hearing.

CATCHWORDS:

Disqualified driving with circumstance of aggravation – whether a notice of intention to prove a previous conviction required before the offenders traffic history can be considered.

LEGISLATION AND CASES:

Justices Act 1886, s 47

COUNSEL:

A Lowrie for the Appellant
M Hibble for the Respondent

SOLICITORS:

The Office of the Director of Public Prosecutions (Queensland) for the Appellant
Legal Aid Queensland for the Respondent

1. The appellant is a police officer who appeals against a decision given by a Magistrate in the Magistrates Court at Townsville on 27 November 2009.

1. The respondent appeared on a charge of driving without a licence whilst disqualified by a court order.  He was convicted and not further punished but disqualified for two years.

1. The transcript demonstrates that that occurred because the Magistrate took the view that it was necessary for the prosecution to give a notice under s 47 of the Justices Act before account could be taken of any traffic history. 

1. The short issue in this appeal is whether or not a s 47 notice was required.

THE PRELIMINARY ISSUE

1. At the hearing of the appeal, the respondent did not appear. The appellant relied upon a number of affidavits of service which had been filed and sought leave to read and file two further affidavits of service.  A perusal of those affidavits reveals the following matters:

"a)    On 30 April 2010 the respondent was served with material including the appellant's outline of argument and a number of documents exhibited to that as well as copies of various cases to be relied upon

b) On 4 June 2010 the respondent was served with a letter advising him that the appeal would be listed for mention on 15 June 2010 at 9 am in the Townsville District Court.

c)  On 15 June 2010 the respondent was served with a letter advising that this appeal would be mentioned on 18 June 2010 at 9 am. in the Townsville District Court.

d)  On 17 June 2010 the respondent was served with notice that the appeal had been set down in the District Court on 18 June 2010a t 11.00 am.

e)  On Thursday 15 July 2010 the respondent was served with a letter advising that the appeal would be mentioned  in the Townsville District Court on Tuesday 3 August 2010.

f)   On 10 August 2010 an unsuccessful attempt was made to serve the respondent with a notice that the appeal was listed for hearing at 9.30 on 27 August 2010.  The police officer who attempted service advised that the respondent had moved to Mackay.

g)  On 27 August 2010, the respondent was served with a letter advising that the appeal was listed for hearing at 9.30 a.m. on 3 September 2010 in the District Court at Townsville.

h) On 13 September 2010 the respondent was served with a letter advising that the appeal would be listed for hearing at 9.30 a.m. on 8 November 2010 at the Townsville District Court."

1. The respondent did not appear when called on 8 November 2010.

1. I was informed by counsel for the appellant that the respondent has not appeared on any of the mentions or days on which the matter was listed for hearing and he urged me to proceed with the matter notwithstanding the non-appearance of the respondent.

1. In view of the history of the matter it seemed to me to be appropriate to do so.

1. The appellant proceeded to tender a transcript of the proceedings had before the Magistrate on 19 November  2009 and 27 November 2009, the bench charge sheet which was part of the Magistrates Court record on the file and the respondent's traffic history.

1. The court record reveals that the defendant appeared in the Magistrates Court at Ayr to answer one charge set out in the bench charge sheet as follows:

"TRANSPORT OPERATIONS (RUM) ACT 1995 78(1) and (3)(A) DRIVING OF MOTOR VEHICLE WITHOUT A DRIVER LICENCE DISQUALIFIED BY COURT ORDER

That on the fourteenth day of July 2009 at Ayr in the Magistrates Court district of Townsville in the State of Queensland one Travis Jake Lawn did drive a motor vehicle namely a Toyota sedan motor car on a road namely Railway Street, Ayr the said defendant not being at that time the holder of a driver licence authorising him to drive that vehicle on that road and at the time of committing the offence the said Travis Jake Lawn was disqualified by a court order from holding or obtaining a driver licence

And it is averred that the said Toyota sedan motor car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995

And it is averred that the said Railway Street Ayr is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995."

1. On 6 August 2009 the matter was adjourned until 20 August 2009 and the respondent was allowed bail in his own undertaking.

1. The matter was further adjourned on two occasions and when called on 29 October 2009 there was no appearance by the respondent and a warrant was issued for his arrest.

1. On 5 November 2009, the matter was mentioned again when the defendant was in custody having been arrested on the warrant.  The defendant did not seek bail and the matter was adjourned until 19 November 2009 and ultimately dealt with on 27 November 2009.  The last two appearances are dealt with in the transcripts which are Exhibit 1.

1. The transcript shows that during the hearing a solicitor appearing on behalf of the respondent raised the question of the failure of the prosecution to give notice under s 47 of the Justices Act in respect of the previous convictions.  The Magistrate thought the point well taken and proceeded to deal with the respondent as though he was a first offender.

1. In fact, as is demonstrated by Exhibit 3, the respondent had been convicted disqualified driving in the Mackay Magistrates Court in 2006, in the Mackay Magistrates Court in 2007 and in the Townsville Magistrates Court later in 2007.  It appears that on the third occasion when he appeared in the Townsville Magistrates Court he was sentenced to imprisonment for a period of five months.

1. Had the Magistrate taken account of the history he would then have been appearing for the fourth time in five years in respect of the offence of disqualified driving.

1. Because of the form of the charge and the fact that the plea of guilty entered by the respondent on 27 November 2009 was unqualified it seems to me that it was unnecessary for any notice of intention to allege previous convictions to have been given.  In respect of that matter, I adopt the reasons which I gave in the matter of Wylie v Rich, delivered today.

1. There is, however, a disturbing aspect of the way in which the matter proceeded before the Magistrate.

1. The Magistrate indicated that if there was not a notice pursuant to s 47 he would not take account of the previous convictions. He said that at the appearance on 19 November and he repeated it on the appearance at 27 November 2009. The Magistrate made it clear that he thought taking account of the respondent's history was a backdoor way of avoiding the notice to allege and made it perfectly clear to the respondent and his solicitor that if he pleaded guilty he would be dealt with as a first time disqualified driver. It was only after that matter had been stated on two or three occasions that the respondent entered a plea of guilty. It seems to me that it might well be that the respondent was persuaded to enter the plea of guilty by reason of the discussion that had taken place and the obvious advantage that there was to him in being dealt with on the basis that he was a first offender.

1. In my opinion, the whole proceeding was unsatisfactory and the appropriate course is to set aside the whole of the proceeding before the Magistrate including the plea entered by the respondent and to remit the matter to the Magistrates Court at Townsville to be dealt with according to law and in accordance with these reasons.

1. There will be no order as to costs.