Smith v Commissioner of Police

[2009] QDC 410

[2009] QDC 410

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE TUTT
No 1196 of 2009

SHANE TERRY SMITH	Appellant
and
THE COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 14/09/2009 JUDGMENT

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HIS HONOUR: In the matter of an appeal by Shane Terry Smith

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against Raymond Hutchinson, the nominal respondent, this is an
appeal against the decision of the Acting Magistrate at
Warwick on the 2nd of April 2009 whereby the appellant was
convicted of the offence of driving his motor cycle in excess

of the prescribed speed limit on the 26th of October 2008 when	10
he was fined the sum of $900 and ordered to pay costs of Court of $68.60. He was convicted on the 2nd of April 2009 on an ex parte basis as he failed to appear at the hearing on that date.
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The basic ground of appeal by the appellant, Mr Smith, is that he is not guilty of the offence in question, but, further, that he was denied the opportunity to defend the matter by not being informed in the first instance of the correct location to appear in answer to the summons and then there was confusion as to the relevant date when the matter was to be heard.	30
When he obtained a rehearing of the summons on the 29th of April 2009 he duly appeared before the Magistrates Court at Warwick on that date, but he was not given a hearing by the Magistrate on that day on the basis that he had neglected; that is he, the appellant, had neglected to appear in Court on the earlier occasion.	40
50
The respondent concedes there has been a procedural
irregularity in this matter by virtue of the confusion as to
hearing dates and/or locations and further concedes that at
the rehearing on the 29th of April 2009 the appellant should

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have been afforded the opportunity to defend the charge	1
against him.
the material filed, I am of the view that the appeal should be allowed and the appropriate course is to remit the matter to the Magistrates Court at Warwick and I direct that the
In the circumstances on the basis of the submissions made and of hearing for this matter and that the Registrar advise the appellant, Mr Smith, of the new hearing date at the appellant's address at unit 1/34 Woodcliff Crescent, Woody Point, Queensland 4019.	10
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HIS HONOUR: That's the order that is sought?
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APPELLANT: Yes.
MS LITCHEN: Thank you, your Honour.
HIS HONOUR: Thank you. So that will be the order, Mr Smith. ordered the matter be remitted to the Magistrates Court at Warwick so that you can have a new hearing date for the summons.	40
50
HIS HONOUR: Thank you, your Honour.

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