R v Ruthven - [2013] QCA 142

[2013] QCA 142

COURT OF APPEAL

FRASER JA
APPLEGARTH J
JACKSON J

Appeal No 23 of 2013
DC No 3117 of 2012

THE QUEEN

RUTHVEN, Matthew David Applicant

BRISBANE

FRIDAY, 31 MAY 2013

JACKSON J: The applicant seeks to extend the time for an application for leave to appeal against the decision of the District Court of Queensland. On the 3rd of August 2012, the applicant was convicted in Magistrates Court of Queensland at Wynnum of a single traffic offence, namely that on the 2nd of October 2011 the applicant drove a vehicle over the speed limit on Lytton Road at Lytton. The applicant was sentenced to a fine of $350 and order to pay the court costs and witness expenses.

The applicant appealed to the District Court. On 10 December 2012, that court ordered that the appeal be dismissed.

Section 118(3) of the District Court of Queensland Act 1967 requires that the party who is dissatisfied with the judgment of the District Court on appeal, brought before that court under s 222 of the Justices Act 1886, may appeal to the Court of Appeal with the leave of the Court of Appeal. Rule 85 of the Criminal Practice Rules 1999 requires that notice of the application for leave to appeal must be filed within the appeal period defined in Schedule 6 to those Rules, being one calendar month after the decision appealed from.

The applicant filed his application for leave to appeal on 4 February 2013, which was 24 days late. Thus he applies under rule 85 for an extension of time to file the application for leave to appeal. The reason for his delay was that he was extremely busy after Christmas 2012, operating a tugboat in the Port of Brisbane, in circumstances where no other employees were able to carry out that work.

Two important issues in considering the exercise of discretion to extend time are whether there is a good reason for the delay, and whether it would be in the interests of justice to grant the extension.

If time were extended, the question for this court would be whether to grant leave to appeal under s 188(3). As Justice Muir recently said in Shambayati v The Commissioner of Police:

“The general principle is that leave to appeal is normally granted in respect of applications made under s 118(3) of the District Court of Queensland Act 1967, where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error to be corrected.”

Putting to one side the adequacy of the applicant’s explanation for delay in filing the application for leave to appeal, the ground which he advances as to why leave for this further appeal should be granted, is that this is a case of misidentification.

What the applicant means by that is that he contends that the in-car radar detection device operated by police officer in the police car travelling towards…

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 R v Ruthven

Details

AGLC: R v Ruthven [2013] QCA 142
Case: [2013] QCA 142
Decision Date: 31 MAY 2013

CaseChat Overview and Summary

The case of R v Ruthven involved the applicant, Matthew David Ruthven, appealing against a decision of the District Court of Queensland, which dismissed his appeal against a conviction in the Magistrates Court of Queensland for a traffic offence. The applicant sought an extension of time to file an application for leave to appeal to the Court of Appeal. The reason for the delay was attributed to the applicant's occupation as a tugboat operator, which was particularly busy during the Christmas period in 2012.

The main legal issues before the Court of Appeal were whether there was a good reason for the delay in filing the application for leave to appeal and whether it would be in the interests of justice to grant the extension. Additionally, the court had to consider whether leave to appeal should be granted if the time was extended, based on the applicant's contention of misidentification of his vehicle by the police radar detection device.

The Court of Appeal determined that the District Court judge had properly assessed the conflicting evidence and found that it was the applicant's vehicle that was speeding. The Court of Appeal emphasised that it was not their task to substitute their view of the facts for that of the District Court judge. They noted that leave to appeal from the District Court would only be granted if there was a reasonable argument in support of the applicant's claim to relief, which meant identifying an arguable error of law in the decision below that, if corrected, would result in the correction of a substantial injustice.

In this case, even if an appeal to the Court of Appeal were open on a wider basis of factual review, the appeal would likely fail due to the evidence and findings of the District Court judge. Therefore, the application to extend the time for filing the application for leave to appeal and the application for leave to appeal were dismissed.

The orders of the court were that the applications were dismissed.

Orders