Rodgers v. Smith

[2007] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:	Rodgers v Smith [2007] QCA 21
PARTIES:	RODGERS, William John (applicant/appellant) v SMITH, Brett John (respondent)
FILE NO/S:	CA No 296 of 2006 DC No 1562 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	5 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2007
JUDGES:	de Jersey CJ, Williams JA and Holmes JA Separate reasons for judgement of each member of the Court, each concurring as to the order made
ORDER:	The application filed 13 October 2006 be struck out
CATCHWORDS:	MAGISTRATES – APPEALS FROM AND CONTROL OVER MAGISTRATES – QUEENSLAND – APPEAL – WHEN APPEAL LIES – applicant convicted in the Magistrates Court for an offence under s 50 Weapons Act 1990 (Qld) – applicant appealed to District Court with respect to both conviction and penalty – appeal to District Court dismissed – Court of Appeal heard appeal against decision of District Court judge – application refused – attempt by applicant to re-agitate matter – whether application competent Weapons Act 1990 (Qld), s 50
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent

THE CHIEF JUSTICE:  The applicant challenged my sitting on the hearing of this application and he also challenged Justice Holmes sitting, on the basis that her Honour made rulings against him in the course of a jury trial and because I determined a bail application against him.  For my part, I see no reason why I should not do my duty to sit and hear the matter.

HOLMES JA:  Similarly, I consider that Mr Rodgers, having been convicted by a jury and there being no issue of credit which I have determined in respect of him, there is no bar to my sitting either.

THE CHIEF JUSTICE:  I will invite Justice Williams to deliver the first judgment.

WILLIAMS JA: By a document filed on 13 October 2006, the applicant has purported to apply for leave to appeal against the penalty imposed upon him in the Magistrates Court on 19 March 2004, following his being convicted of an offence against section 50 of the Weapons Act 1990 (Qld), that is the unauthorised possession of two concealable pistols.

He was fined $650, with nine months to pay, in default of, 11 days imprisonment.  He was disqualified from holding a weapons' licence for a period of three years.

The applicant appealed to the District Court under section 222 of the Justices Act 1886 (Qld), by a document filed 30 April 2004. His notice of appeal made it clear that he was appealing against both his conviction and penalty.

That appeal was heard by Judge McGill on 24 November 2005 and his Honour gave judgment on 21 December 2005, dismissing the appeal.  As his reasons for judgment show, he dealt with both conviction and penalty.  He described the penalty as very moderate.

On 17 January 2006, the applicant filed in a Court of Appeal, an application for leave to appeal against the whole of the judgment of Judge McGill.

The Court of Appeal heard that application on 14 August 2006 and gave judgment on 15 September 2006, refusing the application.

The current application, filed 13 October 2006, is an attempt to re-agitate a matter previously determined conclusively by the Court of Appeal.

The applicant, in oral submissions, indicated he was concerned primarily with the issue of sentence on this application, but as already indicated, both conviction and sentence were the subject of consideration by the Court of Appeal in its judgment of 15 September 2006.

This application is incompetent and should be struck out, see Grierson v The Queen (1938) 60 CLR 431 at 435, R v Senior [2006] QCA 21 and R v Arnold [2005] QCA 396 at [8].

I would order that the application filed 13 October 2006 be struck out.

THE CHIEF JUSTICE:  I agree.

HOLMES JA:  I agree.

THE CHIEF JUSTICE:  That is the order of the Court.

APPELLANT:  Your Honour, would I be able to - as I am appealing to the High Court of Australia, could I have the transcripts of today?

THE CHIEF JUSTICE:  Beg your pardon?

APPELLANT:  I will be appealing to the High Court of Australia.  Could I have the transcripts of today to help me with my appeal?

THE CHIEF JUSTICE:  Yes, you may obtain them from the State Reporting Bureau.

APPELLANT:  Thank you.

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