Strachan v O'Brien & Davidson

[2006] QDC 256

[2006] QDC 256

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3294 of 2005

DOUGLAS JOHN STRACHAN

Appellant

and

ANGELA TEATAMEA O'BRIEN

and

CARRIE ANN DAVIDSON

First Respondent

Second Respondent

BRISBANE

..DATE 05/06/2006

ORDER

CATCHWORDS: Appeals under s 222 of the Justices Act 1886 - considerable confusion as to implications of duty solicitor's submissions before sentencing Magistrate for two bail offences
(one of failing to report to police, one of failure to attend court) acknowledging correctness of some allegations but alleging mitigating circumstances - no pleas of guilty by appellant - this not a mere irregularity - matters remitted to Magistrates Court.

HIS HONOUR:  There are three appeals before the court by

Douglas John Strachan under s 222 of the Justices Act 1886. . On the face of things, that appears excessive given that Mr Strachan's substantive complaints are against his being convicted and punished for two charges under the Bail Act: one of failing to report to police on the 18th of April 2005; the other of failing to appear in court on the 27th of July 2005. The penalties were a fine of $500 with three months allowed to pay and one month's imprisonment suspended for a year, respectively.

The difficulty that has emerged is that Mr Strachan did not

enter any plea to either of the charges, at least he did not

clearly do so.  He was assisted by the duty solicitor who was

doubtless, as Mr Hungerford-Symes suggests, rushed off his

feet.

The solicitor gave the Magistrate intimations that

Mr Strachan was willing to accept an allegation of failure to

appear and the like, accompanied by references to mitigating

matters.  In respect of the court appearance, those are filled

out today by Mr Schofield's affidavit in which he, as an

employee of Legal Aid Queensland, deposes that Mr Strachan

didn't know of the court fixture.

In the circumstances of two charges being dealt with on the

16th of August 2005, it is not clear what implications can

safely be found in the duty solicitor's statements.

Mr Hungerford-Symes, for the respondent, does not contend that

those can be taken as an admission of the truth of any

particular complaint, for the purpose of section 222(2)(c) of

the Justices Act 1886. Mr Strachan himself did not get to

have a say, so there was no plea to satisfy the provision just

mentioned.

Mr Andrew, for the appellant, acknowledged the helpfulness of

Mr Hungerford-Syme's written outline.  It refers to two cases

bearing on the consequences of failure to enter a plea of

guilty:  Rowen v Strophair (1967) 61 QJPR 33 and Daly v Barlow

[1969] QdR 237. He accepts that failure to enter a plea here

is more than just an irregularity, if only because of the

degree of mystification which the transcript suggests was felt

by both the duty lawyer and Mr Strachan.

It can't be said Mr Strachan was clearly acknowledging his

criminal responsibility for anything.  It is common ground

that the convictions should be set aside and the two charges

remitted to the Brisbane Magistrates Court to be dealt with

according to law under section 225 of the Justices Act.

I began by commenting on the plethora of appeals.  The

second and third of them relate to subsequent days in the

Magistrates court when another Magistrate declined to reopen

the proceedings under section 188 of the Penalties and

Sentences Act and as to the third, when the original

sentencing Magistrate on a later date similarly declined.

I have indicated the orders above.

I ought to say that notwithstanding the contents of

Mr Schofield's affidavit, the authorities are of the view that

there is still a case to be faced by Mr Strachan.  It can be

anticipated that this time that will involve clear pleas of

guilty or not guilty.  It is perhaps unfortunate that the two

attempts to use section 188 may have failed because of the

amount of confusion which attended the matter and lack of time

or will to sort it out.

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