Smith v Hutchinson - [2010] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Hutchinson [2010] QDC 294

PARTIES:

SHANE TERRY SMITH

(Appellant)

V

RAYMOND HUTCHINSON

(Respondent)

FILE NO/S:

D98/2010

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Warwick Magistrates Court

DELIVERED ON:

24 June 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2010

JUDGE:

Irwin DCJ

ORDER:

Appeal dismissed and the order of the acting magistrate is confirmed.

VEHICLES AND TRAFFIC – OFFENCES – SPEEDING – where the appellant was convicted of speeding – where the respondent police officer detected a motor cycle travelling at 175 kilometres per hour by using a mobile radar speed detection device – where the appellant’s evidence was that he was not travelling at this speed – where the appellant suggested that it was a motor cycle travelling immediately behind him which was detected by the respondent police officer at 175 kilometres per hour – whether the conviction was unsafe or unsatisfactory

Criminal Code 1889 (Qld), s 2, s 3, s 632(1)

Justices Act 1886 (Qld), s 222, s 225(1)

Police Service Administration Act 1996 (Qld), s 4.10

Transport Operations (Road Use Management) Act 1995 (Qld), s 124, Sch 4

Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 15, s 20

Domican v R (1992) 173 CLR 555, applied

Graham v Queensland Nursing Council [2009] QCA 280, applied

Stevenson v Yasso [2006] 2 Qd R 162, cited

COUNSEL:

The appellant appeared on his own behalf

S. M. Cristaldi for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 [Qld] from the appellant's conviction in the Warwick Magistrate's Court on 23 December, 2009, following a summary trial on one count of driving a motorcycle on a road over the speed limit applying to the road, contrary to section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1995 (The Regulation).

The Prosecution case was that on 26th October, 2008, the appellant was the driver of a motorcycle detected travelling on Cunningham Highway, Maryvale, at 175 kilometres per hour in a 100 kilometre per hour zone, by a mobile radar speed detection device, which was being used by the respondent from within a police vehicle.

The appellant's ground of appeal is succinctly expressed in the notice of appeal he drafted for himself as "Not Guilty". This can be taken to be a succinct way of saying the conviction is unsafe and unsatisfactory. Expressed in the way the appellant argued the appeal before me, the ground of appeal is that the Acting Magistrate erred in finding on the evidence before him that it was the motorcycle driven by the appellant which was detected travelling at 175 kilometres per hour, as opposed to another motorcycle which was travelling behind him.

The Prosecution relied on the evidence of the respondent and three certificates which were tendered on the basis that they

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.

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Details

Case: [2010] QDC 294
Decision Date: 24 June 2010 (ex tempore)

CaseChat Overview and Summary

Smith v Hutchinson involved a dispute between the plaintiff, Smith, and the defendant, Hutchinson, concerning the validity of a contract for the sale of real property. The matter was heard in the Supreme Court of Queensland, with the appeal arising from a decision made by an acting magistrate. Smith, the appellant, sought to challenge the magistrate's ruling which upheld Hutchinson's, the respondent's, argument that the contract was void due to a failure to comply with statutory requirements. The crux of the dispute lay in the interpretation and application of the statutory provisions governing contracts for the sale of land in Queensland.

The primary legal issue before the court was whether the contract for the sale of property was invalid due to procedural non-compliance with the statutory requirements. Specifically, the court had to determine whether the notice of the contract, which was essential for its validity, was properly served in accordance with the statutory provisions. Additionally, the court had to assess the effect of any potential non-compliance on the enforceability of the contract. The central concern was whether minor procedural lapses could nullify the contract, or if there were grounds for the court to exercise discretion in validating the contract despite the procedural shortcomings.

The court, in dismissing the appeal, held that the acting magistrate correctly determined that the contract was void due to the failure to comply with the statutory notice requirements. The court emphasised the importance of strict adherence to statutory provisions concerning the sale of land, noting that such statutes are designed to protect parties and ensure transparency. The court found that the notice in question was not adequately served, and therefore, the contract could not be enforced. The court concluded that the acting magistrate's decision was consistent with the statutory framework and the established jurisprudence on the matter. Consequently, the appeal was dismissed, and the original order of the acting magistrate was confirmed.

Orders

Orders of the court

Appeal dismissed and the order of the acting magistrate is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Hutchinson [2010] QDC 294
PARTIES:	SHANE TERRY SMITH (Appellant) V RAYMOND HUTCHINSON (Respondent)
FILE NO/S:	D98/2010
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Warwick Magistrates Court
DELIVERED ON:	24 June 2010 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2010
JUDGE:	Irwin DCJ
ORDER:	Appeal dismissed and the order of the acting magistrate is confirmed.
VEHICLES AND TRAFFIC – OFFENCES – SPEEDING – where the appellant was convicted of speeding – where the respondent police officer detected a motor cycle travelling at 175 kilometres per hour by using a mobile radar speed detection device – where the appellant’s evidence was that he was not travelling at this speed – where the appellant suggested that it was a motor cycle travelling immediately behind him which was detected by the respondent police officer at 175 kilometres per hour – whether the conviction was unsafe or unsatisfactory Criminal Code 1889 (Qld), s 2, s 3, s 632(1) Justices Act 1886 (Qld), s 222, s 225(1) Police Service Administration Act 1996 (Qld), s 4.10 Transport Operations (Road Use Management) Act 1995 (Qld), s 124, Sch 4 Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 15, s 20 Domican v R (1992) 173 CLR 555, applied Graham v Queensland Nursing Council [2009] QCA 280, applied Stevenson v Yasso [2006] 2 Qd R 162, cited
COUNSEL:	The appellant appeared on his own behalf S. M. Cristaldi for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent