Police v Neuss
[2010] QMC 6
•12 August 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Neuss [2010] QMC 6
PARTIES:
POLICE
(respondent)
v
JOSEPH ROYCE NEUSS
(applicant)
FILE NO/S:
MAG90116/10(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for extension of time in which to serve Notice of Challenge
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
12 August 2010
DELIVERED AT:
Toowoomba
HEARING DATE:
12 August 2010
MAGISTRATE:
Ryan K
ORDER:
Application allowed
CATCHWORDS:
CRIMINAL LAW – DRUG OFFENCES - Notice of Challenge - extension of period in which Notice can be served - whether discretion should be exercised liberally
Drugs Misuse Act 1986, s 131B
Criminal Proceeds Compensation Act 2002
Savvinos v R 85 A Criminal R 343
R v Tait [1999] 2Qd R 667
R v Armstrong [1996] 1 Qd R 316
R v Bodnar [2001] QCA 127
COUNSEL:
V Kennedy-Grills (constable) for the respondent
N Bouchier for the applicant
SOLICITORS:
Respondent on their own behalf
Ryan & Bosscher for the applicant
Mr Neuss has been charged with three offences pursuant to the Drugs Misuse Act 1986. He pleaded not guilty and requested a brief of evidence from the Prosecution.
His solicitor, Mr Bouchier, now brings an application pursuant to Section 131B(5) of the Drugs Misuse Act 1986, seeking an extension of time in which to serve a Notice of Challenge on the prosecution.
Section 131B was inserted into the Drugs Misuse Act in 2006 and came into operation on 27 April 2006. Mr Bouchier has handed up a copy of the Second Reading speech when the amendment Bill was debated in Parliament on 1 March 2006. In particular, he has referred me to comments made by Mr Lawlor (the member for Southport) at page 421 where he describes the purpose of the amendment –
“As part of the scheme for reducing forensic testing if there is no challenge by the accused, the bill introduces a new provision aimed at reducing the need for forensic testing of seized equipment if there is to be no contest that the equipment was used for the production of a dangerous drug. The new provision allows the court to accept, in the absence of proof to the contrary, that seized equipment has been used for the production of a dangerous drug if there is no notice of challenge from the defence and there is a reasonable basis for the police belief with respect to the equipment. … That eliminates quite a bit of the delay, the backlog and the cost associated with testing equipment, drugs and so on that have been seized in an operation and which under normal circumstances would be tested, notwithstanding that there is no challenge to the fact that they are used in the production of dangerous drugs. That will be a considerable saving to the criminal justice system and to the community.
In relation to notice provisions for challenging evidence, the bill introduces new section 131B that sets out the notice requirements for section 130 and the new sections 131 and 131A. The prosecution must issue a notice to the accused within 28 days of a charge being laid or a summons being issued. This notice informs the accused of the need to issue a challenge notice if the accused wishes to challenge the prosecution assertion about the contents of the labelled containers, or sealed pharmaceutical containers, or the use of equipment seized by police.
The defendant then has 28 days to serve a notice of challenge on the prosecution. If no challenge notice is received, it is open to the court to accept the police evidence regarding the contents of a sealed pharmaceutical container, the use of seized equipment or the contents of labelled prescribed substances without receiving forensic test results. If the notice is received by the prosecution, the prosecution must then prove its case in the usual way – in the way that it has done in the past. If the defendant does not challenge the evidence, it is still open to the court to find that the evidence is not proved, as the court must be satisfied that the police have a reasonable basis for holding their belief with respect to the evidence.”
Section 131B provides –
…….
(2) Within 28 days after the originating step is taken, the defendant in the proceeding may be served with a prosecution information notice.
(3) The prosecution information notice may be served on the defendant, and the service may be proved, in the same way as a summons under the Justices Act 1886, section 56.
(4) If the defendant wants to challenge a claim of which notice has been given in the prosecution information notice, the defendant must, within 28 days after the prosecution information notice is served on the defendant, give a challenge notice…….
(5) A magistrates court may extend the 28 day period mentioned in subsection (4) if the court considers it appropriate.”
Mr Neuss was arrested on 7 May 2010 as a result of a search of premises at [address] and information given to police. In accordance with Section 131 of the Drugs Misuse Act 1986 he was served with a Prosecution Information Notice[1] on 8 May 2010 when he was in custody in the watch house. He then appeared in court on the same day, represented by the duty lawyer when his application for bail was adjourned to Monday 30 May 2010. At that time, Mr Bouchier appeared on his behalf and was successful in obtaining bail for Mr Neuss. At that time, he asked for a brief of evidence.
[1] Exhibit 1
Mr Bouchier has submitted to the court that he was unaware of the service of the Prosecution Notice on his client until he received the police brief on 16 June 2010. He says that he attempted to serve a Notice of Challenge, but this was rejected by the prosecution. I have no sworn documents before me attesting to this or the date the purported service was attempted, other than the submissions made by Mr Bouchier from the bar table.
Neither the prosecution nor defence has been able to provide any precedent as to factors to be taken into account by the court in exercising the discretion.
Mr Bouchier has submitted that I should consider the time lapse in this case and whether the prosecution has suffered any prejudice as a result of the delay. He submits the delay has been short and that the prosecution has not suffered any prejudice as a result. He also urges that I should exercise the discretion liberally, as not to do so, would deny the defendant the right to have the evidence tested at trial in the normal way.
Mr Bouchier also acts for a co-accused charged with similar offences and has submitted that on his instructions, the co-accused has not been served with a Prosecution Notice and the prosecution would therefore have to prove the same matters in any event at the co-accused’s trial. I do not accept that this argument is one which holds much merit. I consider that the court should only take into account those matters relevant to the defendant’s position in relation to these offences, and not those of another party.
In the absence of any relevant case law on the point, I have had regard to matters taken into account by the courts in considering applications for extensions of time in lodging appeals pursuant to the Criminal Code and issuing forfeiture orders pursuant to the Criminal Proceeds Confiscation Act 2002.
The Queensland Court of Appeal[2], in considering an application to extend time to lodge an appeal will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interest of justice to grant the extension sought. A factor to consider is the length of delay.[3]
[2]R v Tait [1999] 2Qd R 667; R v Armstrong [1996] 1 Qd R 316 and R v Bodnar [2001] QCA 127
[3]R v Tait ibid.
“An application to extend time for leave to appeal against conviction may be allowed if there is a satisfactory explanation for the delay. Even if no satisfactory explanation for delay is given, an application to extend time may be granted if the applicant can demonstrate that to refuse it would result in a miscarriage of justice”[4]
[4]R v GV [2006] QCA 394
In R V Armstrong[5] the Court of Appeal did not confine the exercise of its discretion to grant an extension of time to apply for leave to appeal against sentence to instances where the circumstances were very exceptional.
[5] [1996] 1 Qd R 316
The provisions of the Criminal Proceeds Confiscation Act 2002 state that an application for forfeiture must be made within 6 months after the day the person is convicted “unless the court gives leave”. The discretion should be exercised in circumstances where it is in the interests of justice to enlarge the time. The Victorian Court of Appeal in Savvinos v R[6] did not accept that it was in the interests of justice to enlarge the time to apply for a forfeiture order (in the equivalent Victorian confiscation legislation) where there had been “extraordinary laxity” by the Director of Public Prosecutions who had asked “for an indulgence by the court to relieve him of his own simple mistake caused by error on his part.”
[6] 85 A Criminal R 343
Delay
As previously stated, Mr Neuss was arrested on 7 May 2010 and was served with the Prosecution Information Notice on 8 May 2010. The Notice itself was tendered as Exhibit 1 and was properly served. By the time of his appearance on 10 May 2010, Mr Bouchier had been retained to act. Mr Bouchier received the police brief on 16 June 2010 at which time he became aware of the service of the Prosecution Information Notice.
He states that he tried to serve a Notice of Challenge, but this was rejected. I have no evidence of when that Notice was purported to be served. I have estimated a date of say 19 June 2010 (which allows for a three day turnaround after receipt of the police brief) for attempted service of the Notice of Challenge. Therefore the period of delay from the expiration of the 28 days stated in Section 131B(4) of the Drugs Misuse Act 1986 and the attempted service is 14 days. I do not consider a delay of 14 days to be excessive in all the circumstances.
As to any delay in bringing the application to extend the time, the court file shows that Mr Bouchier foreshadowed this directions hearing on 5 July 2010 (the first hearing/mention date following receipt of the brief), with the date being set on 26 July 2010 for the hearing to take place on 10 August 2010.
I do not consider that the delay in this case is one to warrant the court not exercising its discretion.
Prejudice/Interests of Justice
The only prejudice to the prosecution should the court extend the time in which to serve the Notice, is that it would have to prove the equipment found was used in connection with the production of dangerous drugs, facts which they would have to prove in the ordinary course, had the Prosecution Notice of Information not been served.
On the other hand, prejudice which would flow to the defendant would be significant, as he would be unable to challenge the prosecution’s allegations in the usual way.
Given that I have concluded there has been no unnecessary or extensive delay in this case, I consider it would not be within the interests of justice to deny the application.
The application is therefore allowed and I order that the time in which the defendant may serve a Notice of Challenge pursuant to Section 131B(5) of the Drugs Misuse Act 1986 be extended to 13 August 2010.
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