Phillips v Spencer

[2005] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION: 

Phillips v Spencer & Anor [2005] QCA 317

PARTIES: 

CRIS BRIAN PHILLIPS
(applicant/applicant)
v
MAGISTRATE ROBERT SPENCER
(first respondent/first respondent)
STATE OF QUEENSLAND
(second respondent/second respondent)

FILE NO/S: 

Appeal No 3292 of 2005
SC No 638 of 2004

DIVISION: 

Court of Appeal

PROCEEDING: 

Miscellaneous Application – Civil
Application for Extension of Time/General Civil Appeal

ORIGINATING 

COURT: 

Supreme Court at Cairns

DELIVERED ON: 

26 August 2005

DELIVERED AT: 

Brisbane

HEARING DATE: 

22 July 2005

JUDGES: 

de Jersey CJ, McMurdo P and Jerrard JA
Separate reasons for judgment of each member of the Court,
de Jersey CJ and McMurdo P concurring as to the orders
made, Jerrard JA dissenting

ORDERS: 

1.	Application for leave to appeal refused
2.	Application for an extension of time within which to appeal refused
3.	In each case, the applicant pay the respondent State’s costs to be assessed on the standard basis

CATCHWORDS: 

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where applicant pleaded guilty in Magistrates Court to offence under the Nature Conservation Act 1992 (Qld) – where applicant was represented by counsel – where applicant contended that legal advice to plead guilty was incorrect – where applicant brought application before the Supreme Court for review of the Magistrate’s decision under the Judicial Review Act 1991 (Qld) – where application was dismissed – where applicant made application in Court of Appeal effectively renewing application before the Supreme Court and also seeking leave to appeal from orders of the Supreme Court – whether correct avenue to seek to set aside the plea was taken – whether applicant was bound by apparently freely entered plea of guilty – whether applicant should be granted leave to appeal

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – STATUTORY PROVISOS AND EXEMPTIONS – PARTICULAR MATTERS – OFFENCES – where s 88(1) of the Nature Conservation Act 1992 (Qld) (“the Act”) places a restriction on the taking of protected animals – where s 88(2) of the Act states s 88(1) does not apply to the taking of protected animals in a protected area – where charge did not allege taking had occurred in a protected area – whether circumstance that the taking has not occurred in a protected area is an element of the offence which the prosecution must prove, or an exception it must negative – whether charge was invalid

Constitution of Queensland 2001 (Qld), s 58
Judicial Review Act 1991 (Qld), s 12, s 13, s 41, s 43, s 48
Justices Act 1886 (Qld), s 47, s 142A, s 147A, s 222
Nature Conservation Act 1992 (Qld), s 14, s 29, s 57, s 62,
s 88, s 127, s 146, s 147, s 154, s 162

Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235,
cited
Bone v Mothershaw [2002] QCA 120;…