Pointing v Bone
[2007] QDC 152
•12/07/2007
DISTRICT COURT OF QUEENSLAND
CITATION: Pointing v Bone [2007] QDC 152 PARTIES: WILLIAM HUGO POINTING Applicant/appellant
VMERVYN KENNETH BONE Respondent FILE NO/S: D1354/2007 DIVISION: Appellate PROCEEDING: Application ORIGINATING
COURT:Magistrates Court of Queensland DELIVERED ON: 12 July 2007 DELIVERED AT: Brisbane HEARING DATE: 6 July 2007 JUDGE: Alan Wilson SC, DCJ ORDER: Application refused CATCHWORDS: PRACTICE AND PROCEDURE – APPEAL – APPEAL
OUT OF TIME – APPLICATION TO EXTEND TIME FOR
APPEAL – whether time for appeal should be extended –
relevant factorsJustices Act 1886, ss 222, 222B, 224
Cases considered:
R v Tait [1999] 2 Qd R 667COUNSEL: Appellant appeared on his own behalf
S Cupina, solicitor, for respondentSOLICITORS: Appellant self-represented
Director of Public Prosecutions for respondent
Mr Pointing was convicted of speeding in the Magistrates Court of Queensland. He wishes to appeal to this Court against that decision but his Notice of Appeal was lodged almost seven months out of time. He has applied for an extension of time to appeal, pursuant to this court’s power under s 224(1)(a) of the Justices Act 1886.
Mr Pointing prepared his own Notice of Appeal, and material in support of the present application. The history of the matter is unclear in some respects. It seems that on 17 June 2006 a vehicle of which he was the owner was allegedly captured by a traffic camera travelling at 74 kph in a 60 kph zone. The Magistrates Court file shows he was later served with a Complaint – Sworn, and Summons which clearly showed the hearing date 10 October 2006.
The file also shows, however, that the Summons was accompanied by a form which on its face made it clear the recipient could use it to make written submissions about the charge. After striking out and inserting words appropriately, Mr Pointing sent the form to the court on 13 September 2006. After his amendments, it said:
I desire that the following submission be brought to the attention of the Justices with a view to overturning the summons and throwing out the charges.
There followed a reference to certain documents including some he had sent to the
Police Service.The hearing date on 10 October 2006 apparently passed without the matter being dealt with. Later, on 13 October, the Magistrates Court sent Mr Pointing another notice advising the matter would be addressed again on 31 October 2006 at the Brisbane Court. It said, in clear bold type: ‘Please take notice that you must appear or the matter will be dealt with in your absence’.
Mr Pointing did not appear. Rather, he wrote to the Clerk of the court on 24 October 2006 saying he could not attend on 31 October, and requesting an adjournment until January 2007. That was apparently refused, because the file contains a Notice of Conviction dated 31 October 2006 showing that a conviction was recorded, and he was ordered to pay a fine and costs of court in the amount of $217.90, in default four days imprisonment.
In a subsequent undated letter (date-stamped by the court on 20 November 2006) Mr Pointing protested the matter had been heard in his absence, a possibility of which he said he had not been notified. In light of the phrase set out in bold above, that is not correct. Nevertheless, on 23 November 2006 the court replied enclosing a form of application for a re-hearing which he was advised to complete and return, with ‘… the reason you want the matter re-heard’.
Mr Pointing responded by letter dated 28 November 2006. On 5 December 2006 the court wrote to him again, advising the application for re-hearing would be heard at 9 am on Tuesday 16 January 2007. He replied, saying he would not attend on that date and, saying the court’s actions had been ‘… illegal and unconstitutional’.
When he did not appear on 16 January his application for a re-hearing was struck out. It seems he was not informed of this. He says he did not know what had occurred until he received an Enforcement Order dated 17 April 2007 advising that he must pay $264.40 by 16 May 2007. He lodged his appeal on 14 May 2007. In it, he says: ‘I was unaware of any conviction until I received a SPER notice last week’.
His grounds of appeal according to the Notice are:
I have not been given a chance to represent and defend myself in court. On the first occasion I was not even aware that the matter was being heard. I duly notified the court that I was unable to attend court on the second date that was set and was subsequently convicted without being a chance to defend myself. The matter should not even have been brought to the courts as a private agreement was already in place between myself and the Queensland Police Service whereby the Queensland Police Service had already admitted that they had no verifiable claims against me. This information was submitted to the Magistrate who convicted me.
The grounds relied upon for the extension of time for filing the Notice of Appeal are:
I was busy trying to run a business on the Sunshine Coast which failed and in which I lost my life savings. Work another job here in Brisbane, study at University and spend as much time as possible with a very homesick wife (this is where a good portion of my time is spent) from the Philippines whom I married in October of 2006. So both my personal & financial affairs have been extremely traumatic over the last year.
Correspondence attached to an affidavit filed by Mr Pointing tends to confirm that he did not know what had occurred in January 2007 until April. He was still writing to the Magistrates Court and to the police in April advising dates when he could attend court. It also appears, from all the available material, that Mr Pointing was not specifically told in any correspondence from the Court in response to his letter of 24 October 2006 that the matter might proceed on 31 October 2006.
There is provision in the Justices Act for conviction ex parte where a defendant who has been given due notice has not attended a hearing and the court can be satisfied of the facts alleged in relation to a simple offence[1].
In considering whether an extension of time should be granted pursuant to s224(1)(a) the court ‘… will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension’: R v Tait [1999] 2 Qd R 667, at 668[2].
The issues devolve, I think, to a central question: should the Magistrates Court, on receipt on 25 October 2007 of Mr Pointing’s letter dated 24 October have granted an adjournment and/or responded before the hearing on 31 October reminding him that, if his request for an adjournment was not granted, the matter might be dealt with in his absence (and, perhaps, that it would be prudent for him to appear on that date if he wished to press his adjournment application).
The notice sent to him on 13 October 2006 made the possibility that the matter might be dealt with in his absence very clear. The fact that occurred, notwithstanding his letter 24 October 2006, does not compel the conclusion that proceeding on that date and, by inference, refusing his application for another adjournment, involved some injustice. That conclusion is cemented when the terms of his letter are considered; it said, relevantly:
Due to employment commitments I am relocating to the Sunshine Coast. I will be extremely busy over the next 12 weeks setting up my business which I have just purchased. I am unable to attend court on this date and request an adjournment until January of 2007. My postal address will remain the same as all mail will be forwarded to my Sunshine Coast address …
This is not, with respect, a persuasive basis for an adjournment. The date of relocation is unclear; and, as the letter shows, he retained a mailing address in Brisbane. There is no mention of any other particular financial, or personal, pressures associated with the new business. The court must administer the many summary charges which come to it in an efficient manner. It proceeded, here, in circumstances where the applicant had plain notice that it might do so, and where that course is countenanced by the Justices Act.
It is also relevant that the grounds raised in the notice of appeal are not compelling. They focus on the matters already traversed which show the applicant had been offered the opportunity to represent himself in court and, when the matter was heard in his absence, had already been granted one adjournment. Later, too, he was granted the opportunity to seek a re-hearing but, again, chose not to appear on that occasion.
The notice of appeal, and this application, are not supported by any material tending to establish an agreement with the Queensland Police Service or an admission by it that the charge was wrongly brought. The absence may be the product of Mr Pointing’s unfamiliarity with legal procedures, but it might also be thought self- evident that an appellant seeking an extension of time ought produce evidence or information showing the conviction is somehow dubious.
In addition, some of the material on the Magistrates Court file and in particular documents each called ‘Notice of Default’ sent by Mr Pointing to the Queensland Police Service on 9 July and 12 August 2006 are redolent, with respect, of an unrealistic and unreasonable stance on his part. The document of 12 August 2006 contains the following:
TAKE NOTICE THAT this matter is now forever closed by your implicit consent and absolute acquiescence to my correspondence dated 9th July 2006. Therefore IT IS NOW TAKEN that the Queensland Police Service and Queensland Transport admit the following:
1. The facts contained in the aforesaid notice of demand are true and correct;
2. The claims made in the aforesaid notice of demand are proper and reasonable;
3. The demands made in the aforesaid notice of demand must be complied with;
4. I am entitled to apply to the court for Summary Judgment for orders pursuant to the demands contained in the aforesaid notice of demand at full legal cost to the Queensland Police Service and/or Queensland Transport.
No further claims made by the Queensland Police Service, Queensland Transport or any other entity will be considered whatsoever, considering this matter forever closed on the 12th August 2006.
Any telephone calls, correspondence or visitations from you, including inutile statements will be deemed as threats and harassment under s 60 of the Trades and Practices Act 1974 (part V, Consumer Protection, division 1, Unfair Practices, section 60, Harassment, Coercion and Terrorism).
Yours Sincerely
By Order of:
William Hugo PointingWhen he appeared on this application Mr Pointing seemed well spoken, and sensible. It is possible this correspondence coincides with some of the periods of personal pressure he has mentioned. In any event, it does not instil confidence that he had, in truth, an intention to address the charge against him in a realistic manner or that his requests for adjournments had a meritorious basis.
This analysis shows Mr Pointing has failed to identify, from the circumstances, any injustice which has been visited upon him. While the delay is explicable, the explanation hinges upon things which are not helpful to him: his failure to attend the court on 31 October 2006 in the face of a clear notice that he ought to do so if he wished to contest the charge; the absence of any reasonable ground upon which he could conclude the hearing on that date would not proceed, or that he need not attend on 16 January; and, the absence of any good reason for concluding he has been unfairly refused adjournments which should have been granted. For these reasons, his application is dismissed.
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