Soa v Commissioner of Police

[2022] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:

SOA v Commissioner of Police [2022] QDC 298

PARTIES:

SOA

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

1859 of 2021

DIVISION:

Appellate

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

20 October 2022 (ex tempore)

DELIVERED AT:

Brisbane District Court

HEARING DATE:

20 October 2022

JUDGE:

Dearden DCJ

ORDER:

Appeal struck out.  (1)     

No order as to costs.  (2)     

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant was sentenced to six months imprisonment, wholly suspended and six months probation – where the respondent seeks to strike out the appeal given the appellant’s failure to proceed with the appeal – whether the appeal should be struck out

LEGISLATION

Justices Act 1886 (Qld) s 229

COUNSEL:

No appearance for the appellant

H Hall-Pearce (solicitor) for the respondent

SOLICITORS:

No appearance for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an application seeking to strike out the appeal by the appellant, SOA filed in this court on 20 July 2021. 

1. The background to the matter is set out at court document number 8,[1] namely, that on 25 May 2021, the appellant pleaded guilty in the Brisbane Magistrates Court to the following charges: 

   [1]Outline of submissions on behalf of the respondent.

MAG6077/21(6):

Charge 1:  serious assault of police officer by biting. 

MAG00039349/21(3):

Charge 1:  fail to leave licenced premises. 

Charge 2:  assault police officer. 

Charge 3:  serious assault of police officer. 

Charge 4:  obstruct police officer. 

1. On 22 June 2021, the appellant was sentenced to six months imprisonment, wholly suspended for an operational period of 15 months on the charge of serious assault by biting and sentenced to six months probation in respect of the remaining charges, with the exception of fail to leave licenced premises on which he was convicted with no further punishment.[2]

   [2]Outline of submissions on behalf of the respondent [1].

1. The respondent seeks to have the appeal struck out pursuant to the Justices Act 1886 (Qld),[3] given the failure of the appellant to proceed with his appeal in this matter. 

   [3]Justices Act 1886 (Qld) s 229(3).

1. The matter came before Judge Rosengren on 26 August 2022 and the following orders were made: 

(1)        that the appellant file written submissions by Friday, 2 September 2022 at 4 pm;

(2)        …

(3)        whereby the appellant files written submissions by Friday, 2 September 2022, order that the respondent file written submissions by Friday, 9 September 2022 at 4 pm. 

1. The appellant filed a document which the respondent accepts as “written submissions”.  Without outlining the entirety of that, it briefly commences by stating: 

“To whom it may concern, I would like to make a submission to have the criminal record I have taken away.” 

1. It then proceeds to outline a belief of drink spiking, notes the apologies, the effect of the charges on the appellant’s life, and some further sensible and measured observations in respect of the effect of a criminal record on career and life and the dangers of drinking.[4] 

   [4]Court document no. 7.

1. Consequent upon that, the respondent filed a further affidavit of Alice Pinkerton, affirmed 8 September 2022 and an outline of submissions also dated 8 September 2022.[5] 

   [5]Court document no. 8 & 9.

1. The court registry then sent a notice of listing for hearing to the appellant listing the hearing for today,[6] 20 October 2022.  That document noted: 

“Please be advised that, if you fail to attend the hearing, the appeal may be struck out in your absence pursuant to section 229(3) of the Justices Act 1886.” 

[6]Court document no. 10.

1. The document further noted: 

“NOTE:  for further information regarding the hearing time, you should consult the daily law list.” 

1. The matter commenced before me at approximately 11 am on 20 October 2022, having been listed in the daily law list for not before 10.40 am.  The appellant’s name was called but he did not appear.  The respondent appears through a legal officer.  The respondent pursues the application pursuant to the Justices Act1886 (Qld) section 229(3). That provides:

“(3) … if the appellant fails to appear on a day the appeal is to be heard, the judge may strike out the appeal on proof that notice of the hearing, informing the appellant the appeal may be struck out in the appellant fails to appear, was sent to the appellant’s address for service at least 10 days before the date of the hearing.”[7] 

[7]Justices Act 1886 (Qld) s 229(3).

1. In that respect, I can indicate that I am satisfied that the notice was sent by the registry within the relevant time frame identified by Justices Act1886 (Qld) section 229(3).

1. Regardless of the merits or otherwise of the matter, the appellant has failed to pursue the appeal; the respondent is entitled, in those circumstances, to make an application that the appeal be struck out; and, with respect, the matter should be brought to a head.  In those circumstances, it is appropriate to make the orders sought. 

Orders 

1. Accordingly, I make the following orders: 

(1)        Appeal struck out. 

(2)        No order as to costs.