Walker v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

Walker v Queensland Police Service [2019] QDC 125

PARTIES:

DALLAS FAYE WALKER
(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

56/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Cairns

DELIVERED EX TEMPORE ON:

12 June 2019

DELIVERED AT:

Cairns

HEARING DATE:

12 June 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.          The application for extension of time be granted;

2.          The application to strike out the appeal against conviction is dismissed;

3.          The appeal against conviction is allowed;

4.          The conviction and sentenced imposed at first instance in the Magistrates Court at Mossman on 1 February 2019 be set aside; and

5.          The proceedings are remitted to the Magistrates Court at Mossman for rehearing according to law before a different magistrate. 

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – whether unequivocal plea – whether sentence manifestly excessive.

Legislation
Justices Act 1886 (Qld) s 222, s 223(1) & 227
Transport Operations (Road Use Management) Act 1995

Cases

 R v Tate [1999] 2 QR 667

Allesch v Maunz (2000) 203 CLR 172

Teelow v Commissioner of Police [2009] QCA 84

White v Commissioner of Police [2014] QCA 12

Maxwell v R [1996] 184 CLR 501

Ajax v Bird [2010] QCA 2
Commissioner of Police v James [2013] QCA 403 at [12]
Davies v Dorfler [1988] 2 Qd R 490 at 492.

SOLICITORS:

T. Grasso (Department of Police Prosecution)

D. Walker (self -represented)

1. On the first of February 2019 the appellant was convicted on her purported plea of guilty during the course of a contested hearing in the Magistrates Court held in Mossman, of one charge of driving a motor vehicle under the influence of liquor or a drug on the 28 February 2018 in Mossman. 

1. The appellant now appeals against her conviction on the basis that the plea was vitiated having regard to the nature and her understanding within which it was given.

1. The matter came before this Court at the behest of the respondent by an application to strike out on the basis that the appellant was limited in the appeal to one of sentence in circumstances where the plea of guilty was relied upon and was unequivocal.  That application was withdrawn at the commencement of this hearing and with the agreement of both parties the matter proceeded to hearing in the appeal. 

1. I have had the opportunity to have regard to the outlines of argument which have been provided to date as well as further oral submissions by both parties.

BACKGROUND

1. The respondent’s charge was one brought under s. 79(1)(a) of the Transport Operations (Road Use Management) Act 1995. That provision creates the offence of driving under the influence of drugs. The drugs here were of a prescription nature and not otherwise illicit.

1. The charge proceeded to trial on a plea of ‘not guilty’ at its commencement, but at a juncture within the trial the Magistrate declared a conflict, which caused him to decide to recuse himself from…