Stone v Warwick

[2013] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Stone v Warwick [2013] QDC 56

PARTIES:

GRAHAM KEITH STONE

(Appellant )

And

WILLIAM WARWICK

(Respondent)

FILE NO/S:

4582/2012

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Ipswich Magistrates Court

DELIVERED ON:

14 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2013

JUDGE:

Reid DCJ

ORDER:

Application to extend time in which to appeal refused. Appeal dismissed.

CATCHWORDS:

Nonattendance on resumed hearing – conviction – application to re-open or rehear refused – application to extend time in which to appeal refused.

COUNSEL:

The appellant appeared on his own behalf
K Ashen (legal officer) for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Office of Director of Public Prosecutions for the respondent

1. The Appellant has appealed from a decision of a learned Magistrate sitting in Ipswich made on 23 August 2012.  He was on that date convicted of disobeying the speed limit and fined $300.  He was also ordered to pay costs of Court of $76.85 and $660 witness mileage fees.

1. Although he was aware of the decision on the day that it was given in circumstances to which I shall shortly refer, he did not file his notice of appeal and, necessarily, his notice of application for extension of time for filing a notice of appeal until 22 November 2012.

1. Pursuant to s.222 of the Justices Act such an appeal is to be commenced within one month of the decision appealed from.

1. The Appellant, who appeared before me in person, said the Notice of Appeal contained his detailed submissions in support of his position.  There were no other submissions filed. Because of the failure of the Appellant to file submissions, the respondent did not file any in response.

History

1. Before turning to the basis of his appeal, it is necessary to say something of the history of the matter.

1. The Appellant was on 24 January 2011 driving a Toyota maxi taxi on Brisbane Road, Goodna.  It was alleged he was travelling at about 80 kilometres per hour in what was alleged to be a 60 kilometre per hour zone.  Sergeant Pollock gave evidence that he used a LIDAR speed detection device which indicated that the appellant was travelling at a speed of 81 kilometres per hour.

1. The matter was initially dealt with ex-parte in December 2011 but that decision was set aside due, the appellant says, to the failure of police to have given him notice of the hearing.  Thereafter the matter had a difficult progression through the Courts.  I am unable to determine whether the fault was that of the prosecution or the appellant or both. In any case it doesn’t seem to me to be of any relevance although the appellant asserted to me that it did.  His reasons for being of that view were not clearly enunciated. As I understand them, it would appear to be an assertion that because he’d been inconvenienced in the past, it was reasonable for him to inconvenience the prosecution, as he subsequently did.  In my view there is no basis for such a contention.

1. What is of importance is the progress of the trial. It began on 25 May 2012. Because the defendant wished, inter alia, to challenge the operation and accuracy of the LIDAR equipment and the fact of whether he was then in a 60 kilometre per hour zone, and because he had not given requisite notices of challenge to the operation or accuracy of the device or as to signage on the roadway, as required by ss 119,124(4)(a) and (b) of the Transport Operations (Road Use Management) Act the trial was adjourned to 9.00 am on 23 August 2012 to enable him to do so.  Directions were given by the Magistrate that he give those notices by 8 June.  Later he was given an extension of time to 15 June to do so.

1. Despite the matter having been adjourned from 25 May specifically for that purpose, he did not ever give such notices.  His only explanation before me for that omission was that his father has been ill with cancer.  No detail of why this precluded him from giving the required notices was ever proffered.  He also said that, after the 15^th of June passed he was then outside the time for giving the notices and so did not then do so.  It seems to me that any reasonable person would, if they intended to rely on the notices, had given notice or, alternatively, had sought a further extension.  Instead the applicant did nothing. This would, no doubt, have meant that even if the trial had resumed on the adjourned date there would have been real difficulty in the appellant’s prosecution of his defence.

1. In any case, when the matter came on for hearing in the morning of 23 August the defendant failed to appear.  Efforts to locate him in the Court precincts including the calling of his name over a loud speaker system failed to find him. The Court then proceeded in his absence on the evidence that had been given on 25 May.  The learned Magistrate, understandably, convicted him and imposed the penalties I have set out.

1. The appellant says in his notice of appeal that on that morning he was “running late”. He says he unsuccessfully attempted to call the Court through the Government Call Centre and by telephoning the Ipswich Magistrates Court directly but got either a recorded message or engaged signal.

1. He says he subsequently attended the Court at 9.42 am.  After lining up at the customer service centre he says he spoke to court staff about 10 minutes later.  After enquiries had been made, he was informed the Magistrate had disposed of the matter as I have indicated. He says he was also told that the Magistrate had said his only avenue was to appeal.  Not satisfied with that explanation he contacted the Brisbane Magistrates Court on that same morning.  He was told of the possibility of applying for a re-opening or re-hearing of the matter. 

1. He completed a written application for re-hearing or re-opening, on a standard form which I assume would have been provided by the Court, and filed it in the Ipswich Magistrates Court on that same day.  The application was said to be made pursuit to s 142(6), 142A(12) and/or s 147A of the Justices Act.  On that same day a letter was sent to him by a Court Services Officer enclosing written reasons of the Magistrate for refusing that application. 

1. In addition to reciting a history of the matter substantially consistent to that I have set out, the learned Magistrate noted that Sergeant Pollock had come from Roma to attend Court on 23 August to give evidence and had, quite understandably, left the precincts of the Court after the completion of the matter.

1. The learned Magistrate, in her reasons for refusing the application to re-open or rehear the matter, says that in her view the appellant “had no capacity to make such an application”.  She concluded that the matter was “not an application capable of being re-opened pursuant to s 142(12) as that relates to applications heard ex-parte.”  She also said that the powers to re-open under s 147A(3) were not applicable.

1. The reference to s 142(12) appears to be an error and should have been to either s 142(6) and/or s 142A(12).  In my view it is unnecessary to determine whether the learned Magistrate ought have considered whether to exercise her discretion to allow the re-opening of the matter because in my view the application to extend time in which to appeal and the appeal should fail in any case. 

Determination

1. The decision to convict and fine him and the decision to reject his application for re-opening were both made on 23 August.  He was aware of both matters on that day and would have received the Magistrates reasons for refusing the application to re-open the matter within a matter of days. 

1. Despite that, the notice of appeal and necessary application for extension of time for filing the notice of appeal were not filed for almost three months, on 22 November 2012. As I have said s 222 requires such appeal to be instituted within 28 days.

1. The notice of appeal is all but silent on the reasons for his delay in appealing.  The only mildly relevant statement is at the end of paragraph 4 of his Notice of Appeal and is in the following terms:

“I was told incorrect information by the clerk and registra (sic) I spoke to in that the ordered (sic) to pay $660.00 witness mileage fees.  I received the correct information in writing weeks outside 28 days to appeal this matter given this information went to P.O. Box address.”

This appears to be a reference to the fact that he says he was not told of the order with respect of witness expenses of $660 on 23 August and did not know of it for some time as notice was sent to his P.O. Box number.  Even if one assumes that that is correct, it is not at all clear when he became aware of that information other than to say it was “beyond the 28 days to appeal the matter. It is not said whether he lodged the notice of appeal within 28 days of becoming aware of the information or otherwise.  I consequently do not know of the extent of his delay after ascertaining that fact. In any case, he also offered no explanation of why he did not in any case appeal or why he did not check his P.O. Box. Furthermore it seems to me that, inevitably, even if he was successful in an appeal, the costs thrown away by his non-appearance on the morning of 23 August would be required to be paid by him because, as he had not given the requisite notices, he would not even then have been able to adequately defend the matter.  The costs would include the $660 travelling expense for Sergeant Pollock who was required to attend the trial, for a second occasion, from his work at Roma.

Conclusion

1. In my view;

1.          There was no adequate explanation by the appellant for his failure to appeal within time and no adequate explanation of the grounds for his application to extend time in which to appeal;

2.          In any case, his explanation of his non-appearance on the morning of 23 August, means that he would be required to pay the costs thrown away including travel costs.  He said to me that he was working on that morning driving his taxi and was unable to attend on time due to traffic.  The fault was, quite clearly, entirely his.  As I’ve said in such circumstance even if the matter had been re-opened, it would have been appropriate that he pay the witnesses expenses which would have been thrown away by Sergeant Pollock’s need to attend. 

3.          The prospects of success of the matter ultimately were in any case in my view minimal.  No notices required by TORUM had been given.  The appellant’s explanation to me of his defence caused me to conclude he had no realistic prospects of success with the matter.  In my view, consideration of such prospects is relevant to determine whether or not the matter ought to have been re-opened.  It is of course also relevant in deciding whether the notice of application for extension of time in which to appeal ought to be successful. 

1. I might also add that in my view the notice of appeal is also, on its face, limited to an appeal from the decision to convict and fine the appellant and does not appear to be an appeal from the rejection of the application to re-open or rehear the matter.  I have however considered the overall position of the self-represented appellant and conclude that, because of the matters I have set out, his application to extend time for filing the Notices of Appeal should be refused. The Notice of Appeal is also dismissed.

1. I will hear argument on costs.