Puschenjak v Wade - [2002] QCA 190

[2002] QCA 190

COURT OF APPEAL

McMURDO P
WILLIAMS JA

JONES J

CA No 61 of 2002

PETER PUSCHENJAK	Applicant
v.
SEAN PATRICK WADE	Respondent
TOWNSVILLE ..DATE 27/05/2002 JUDGMENT

JONES J: By this application, the applicant seeks an
extension of time within which to apply for leave to appeal
27052002 T26/JPP TSVCOA3/2002
against a decision in the District Court, allowing in part his
appeal from a decision in the Magistrates Court at Atherton.

The decision in the District Court was handed down on 24th of August 1999. This application was instituted only on the 28th of February 2002, some two years six months after the time for appeal had expired. No real explanation is offered for this extraordinary period of delay, apart from the fact that the applicant says he was not aware that he had a right to appeal from that decision in the District Court.

Further to that, the hoped-for appeal has only limited scope.
The applicant, in the Magistrates Court on 7 January 1999,
pleaded guilty to 10 offences variously under the Traffic Act
and Regulations, and the Transport Infrastructure Road
Regulations. These offences included three charges of
unlicensed driving, three charges of using an unregistered
vehicle, two charges of dangerous operation of a vehicle,

driving without due care and attention and disobeying a

signal.

The total penalty imposed in the Magistrates Court was two
months' imprisonment, wholly suspended, and fines totalling

$1,575. The applicant was disqualified from driving for two

years.

On appeal to the District Court pursuant to section 222 of the
Justices Act, the applicant sought to withdraw his plea of
guilty and challenge the convictions thereby recorded. The
27052002 T26/JPP TSVCOA3/2002
learned District Court Judge refused to set aside the
convictions, but in respect of three of the offences of
unlicensed driving and the three offences of driving an
unregistered vehicle, he altered the penalty by discharging
the applicant absolutely, without recording a conviction. As
a consequence, the amount of the fines was reduced to $450,
but the suspended sentence and the disqualification remained.

Apart from the fact that these penalties are a matter of record, they do not have any practical consequence for the applicant, as the operation period for the suspended sentence and the disqualification has now passed.

The grounds upon which the applicant seeks leave to appeal
relate to the correctness of the conviction of the three
offences for unlicensed driving and for driving an
unregistered vehicle, and to his lack of opportunity to defend
the other charges. The respondent in his written outline
contends that an appeal on those grounds is simply not open to

the applicant.

By virtue of the applicant's guilty plea before the
Magistrate, the District Court had no jurisdiction to review
the convictions - section 222 of the Justices Act provides for
appeals to the District Court. In subsection (2) of that

section, the following appears:

"Every such appeal shall be made under and subject to the
following rules and conditions -
(e) Except…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Puschenjak v Wade

Details

AGLC: Puschenjak v Wade [2002] QCA 190
Case: [2002] QCA 190
Decision Date: 27/05/2002

CaseChat Overview and Summary

The applicant in the case of Puschenjak v Wade sought an extension of time to appeal against a decision of the District Court, which allowed in part his appeal from a decision in the Magistrates Court. The applicant had pleaded guilty to ten offences under various Acts and regulations, resulting in a penalty of two months' imprisonment, wholly suspended, and fines totalling $1,575, along with a two-year driving disqualification. The District Court altered the penalty for three offences of unlicensed driving and three offences of driving an unregistered vehicle, discharging the applicant absolutely without recording a conviction. The applicant's grounds for appeal related to the correctness of the convictions and the opportunity to defend the other charges. The legal issues before the court were whether there was any good reason for the delay in seeking an extension and whether it was in the interests of justice to grant the extension.

The court examined the jurisdictional limits set out in section 222(2)(e) of the Justices Act, which restricts appeals where the defendant pleaded guilty. The court noted that the District Court had no jurisdiction to quash the convictions entered upon the applicant's plea, and therefore, the Court of Appeal had no jurisdiction either. The court considered the two general matters in assessing the application for an extension of time: whether there was any good reason for the delay and whether it was in the interests of justice to grant the extension. The court found that the applicant's lengthy delay in initiating the appeal, coupled with the lack of merits, warranted the refusal of the application. The court did, however, reserve the question of whether the court could vacate pleas of guilty entered in the Magistrates Court in cases of clear miscarriage of justice.

The court concluded that the application for an extension of time within which to appeal from the decision of the District Court should be refused. The lengthy delay, absence of adequate explanation, and insufficient prospects of success established here were reasons enough to deny the application. All judges agreed with the order proposed, and the final order was that the application for an extension of time was refused.

Orders