Smith v Queensland Commissioner of Police

[2004] QDC 561

[2004] QDC 561

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD1404 of 2004

BRIAN WINSTON SMITH	Appellant
and
QUEENSLAND COMMISSIONER OF POLICE	Respondent

BRISBANE

..DATE 27/09/2004

ORDER

CATCHWORDS: Appeal against sentence under s 222 of the Justices Act struck out on respondent's adjourned application under s 229 notwithstanding that during the adjournment solicitors lodged an outline of argument in delayed compliance with the relevant practice direction - the solicitors could not contact their (appellant) client, nor could the Registrar to advise an appeal hearing date.

HIS HONOUR:  On the 19th of April 2004 Brian Winston Smith filed his appeal against sentences imposed by a Magistrate at Southport on the 23rd of March 2004. 

The sentences included 12 weeks' imprisonment for assault occasioning bodily harm and two weeks imprisonment for two offences of breach of a domestic violence order - there being at least one additional offence in that category for which he was convicted but not further punished.

In addition, in respect of three bail offences there were sentences of two weeks imprisonment cumulative upon the aforementioned sentences. For a further breach of the Bail Act, there was a conviction but no further punishment. There was a fine and disqualification imposed for an offence of unlicensed driving.

Mr Smith obtained appeal bail, which may have suited his immediate purposes, but he has been dilatory in the extreme in prosecuting the appeal.  Following the customary warning the Registrar had the matter set down on a reference before Judge McGill on the 19th of July this year.  On that occasion Mr Tobin, an articled clerk from McMillans Criminal Law appeared on Mr Smith's behalf and obtained from his Honour an extension of time for filing of the appellant's outline of argument as required by the practice direction.  It was the failure to meet that requirement that led to the reference.

The respondent had returnable before his Honour an application under section 229(1) of the Justices Act to have the appeal struck out. That application was adjourned until today. Mr Tobin or others in the firm have managed to get the outline of argument filed. This, it seems, required no contact with the appellant and one would not expect that such contact would be necessary in respect of an appeal against sentence.

McMillans Criminal Law seek leave to withdraw as the appellant's solicitors.  I will accept from Mr Tobin that they have no idea where he is.  The means of contact they believed they had in the form of telephone numbers and the like have proved unavailing.  There is nothing useful they can do in the appeal.  Nor can the Registrar effectively advise the appellant of any hearing date that might be fixed for the appeal.

Ms McCormack, for the respondent, wishes to pursue the section 229 application which has been adjourned until today. Section 229(1) reads:

"If the appellant delays in prosecuting the appeal or fails to take a necessary step to present the appeal a District Court Judge may strike out the appeal on application in the approved form by a party to the appeal."

What has happened since the 19th of July is that the applicant, thanks to the initiative shown by Mr Tobin or others, has, within the extended time allowed by his Honour, filed an outline of argument but otherwise the applicant shows no interest in prosecuting the appeal although the prosecution of it is plainly in his interest as it might lead to amelioration of the sentences he is subjected to. My view of section 229(1) is that the Court is able to approach the matter as if events were still as they presented themselves on the 19th of July which means there is a ground for the striking out of the appeal.

While it is true that the practice direction has now been complied with, at the same time it has been confirmed that the appellant is not prosecuting the appeal.  Matters will be brought to a head by the Court's striking it out.  In doing that I accept there's a certain likelihood that when Mr Smith learns of what has happened he will take some steps to have his appeal reinstated.  One can be confident that will only occur on the basis of his providing to the Court and the respondent details of his address for service so that the matter, if revived, can effectively be advanced towards a hearing.

Ms McCormack has told me she is aware of the risk that her client takes, that that's how things will develop. 

So, under section 229 of the Justices Act the appeal is struck out. I will give McMillan Criminal Law leave to withdraw as Mr Smith's solicitors.

...

HIS HONOUR:  Ms McCormack has the advantage of access to details of Judge Noud's order made on the 30th of April 2004 granting bail to Mr Smith pending the determination of the appeal.  It would appear that having regard to the terms of it the bail has terminated now and on that basis it may be appropriate for a warrant to issue so that Mr Smith can be taken into custody.  I will order a warrant.

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