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

1

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 where the sole ground of appeal is that
the fine, penalty, forfeiture or punishment is

27052002 T26/JPP TSVCOA3/2002

excessive or inadequate, as the case may be - no
appeal shall lie under this section where the
defendant pleaded guilty or admitted the truth of
the complaint."

The learned District Court Judge reviewed the circumstances of the applicant's conviction and came to the view that had the applicant not pleaded guilty, he would in any event have been found guilty. His Honour used this review of the

circumstances then to alter the penalty imposed.

It is clear from the terms of section 222 (2)(e) that the learned District Court Judge had no jurisdiction to quash the convictions entered upon the applicant's plea, nor does this Court on this appeal have the jurisdiction to do so.

In considering the application for an extension of time within
which to seek leave to appeal, two matters generally arise -

(1) whether there is any good reason shown for the delay; and

(2) whether it is in the interests of justice to grant the
extension. See particularly R v Tait (1999) 2 Qd.R at page

668. The Court in that case observed:

"The second inquiry may involve some assessment of
whether the appeal seems to be a viable one. It is not
to be expected that in such cases the Court will be able
to assess whether the prospective appeal is viable or
not, but when it is feasible to do so, the Court will
often find it appropriate to make some provisional
assessment of the strength of the applicant's appeal and
take into account in deciding whether it is a fit case
for granting the extension.

Other factors include prejudice to the respondent, but in the case of criminal appeals, this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short rather than a long delay."

This approach to the consideration of an application of this
27052002 T27/DD M/T TSVCOA3/2002
kind was confirmed in Von Schultz v. The Attorney-General for

Queensland 2000 QCA 406. In this case, in my view, there are

no prospects of success in pursuing an appeal from the
District Court. That Court had no jurisdiction to make the
orders which the applicant now seeks, and nor therefore has

this Court.

The applicant wishes to re-litigate the circumstances of the
charges and the fact that he did not wish to plead guilty.
His complaints against his former counsel are not matters that
can be dealt with in these proceedings.

The length of the delay in instituting this appeal is quite extraordinary. The relevant events occurred between October and December 1998. The proceedings in the Magistrates Court and the appeal to the District Court were disposed of in a timely way by the 20th of August 1999.

The next indication on the material before this Court of an attempt to resurrect these issues appears to be in an exchange of correspondence with the Assistant Commissioner of Police for Far North Queensland. One letter dated 15th of February 2002 appears to be part of this exchange. This application

was lodged two weeks after that letter.

The applicant's appeal to the District Court appears to have been instituted within time, or within such time as not to

require comment from the learned District Court Judge. I
infer from that fact that the appellant had some awareness

5  JUDGMENT

27052002 T27/DD M/T TSVCOA3/2002
that time limits apply to appeals. The only explanation for
the delay offered by the applicant now is that he was unaware
of his right to seek leave to appeal. That state of mind
appears to have continued until February 2002.

No explanation is given of any attempt to ascertain his rights. Consequently, it seems to me, having regard to the requirements for consideration, that in the absence of any cogent explanation for delay, the interests of justice indicate that this application should be refused and I would

so order.

THE PRESIDENT: I agree with Justice Jones that the
application for an extension of time within which to appeal

from the decision of his Honour Judge White should be refused,

generally for the reasons given by Justice Jones. I would,

however, wish to reserve the question whether this Court could

vacate pleas of guilty entered in the Magistrates Court where
there has been a clear miscarriage of justice established.
There has been no adequate explanation for the delay and there
are insufficient prospects of success established here to
warrant the granting of this application.

WILLIAMS JA: Given the lengthy delay and the absence of merits, I agree with the order proposed by my colleagues.

THE PRESIDENT: The order is the application for an extension of time is refused.

6  JUDGMENT

27052002 T27/DD M/T TSVCOA3/2002

-----

7  JUDGMENT