Wilshire v Dowd - [2009] QDC 285

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilshire v Dowd [2009] QDC 285

PARTIES:

AMANDA MARY WILSHIRE

(Appellant)

v

LEE RYAN DOWD

(Respondent)

FILE NO/S:

BD 3590/08

DIVISION:

Appeal

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Caboolture Magistrates Court

DELIVERED ON:

3 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2009

JUDGE:

Tutt DCJ

ORDERS:

The appeal is allowed;1.

The sentence of the Magistrate imposed against the appellant on 27 August 2007 is varied to the extent that the order that a conviction be recorded against the appellant is set aside; and2.

No conviction be recorded against the Appellant for either offence.3.

CATCHWORDS:

APPEAL – application for extension of time to appeal – application to lead fresh evidence – Plea of Guilty before magistrate of Dangerous Operation of a Motor Vehicle and Failure to comply with duty after accident – conviction recorded – submissions thereon not sought or made – impact on appellant’s employment prospects – Licence holder under Security Providers Act 1993 – effect of recording conviction on Licence under that Act

Justices Act 1886 ss 222(1), 223(2), 224(1)(a)

Penalties and Sentences Act 1992 ss 12(1), 12(2)(a)-(c)

Security Providers Act 1993 ss 11(4)(e), 11(5)

Criminal Code 1899 s 328A

Transport Operations (Road Use Management – Road Rules) Regulation 1999 Reg 287(2)(c)

R v Mentink (1996) 1 Qd R 532

R v Porter CA No 160 of 1997, 26 May 1997

R v Wolfven CA No 376 of 1997, 28 November 1997

R v Tatnell CA No 42 of 1996, 13 March 1996

R v Doyle CA No 70 of 1996, 2 May 1996

R v Tait (1999) 2 Qd R 667

Aldrich v Ross [2001] 2 Qd R 235

Warren v Coombes [1979] 142 CLR 531

State Rail Authority NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306

Fox v Perry [2003] 214 CLR 118

Allesch v Maunz [2000] 203 CLR 172

Norbis v Norbis [1986] 161 CLR 513

House v The King (1936) 55 CLR 499

R v Cay Gersch and Schell; ex parte A-G (Qld) (2005) QCA467

R v Briese; ex parte A-G (Qld) [1998] 1 Qd R 487

R v Seiler [2003] QCA217

R v Ndizeye [2006] QCA537

R v Brown; ex parte A-G (Qld) (1994) 2 Qd R 182.

R v Kitson [2008] QCA 86.

COUNSEL:

Mr S Lynch for the appellant

Ms K Overell for the respondent

SOLICITORS:

Quinn & Scattini for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction:

This is an appeal pursuant to s222 of the Justices Act 1886 (“The Act”) against the decision of the learned Acting Magistrate at Caboolture on 27 August 2007 whereby Amanda Mary Wilshire (the appellant) was convicted in the Caboolture Magistrates Court on pleas of guilty of the following offences:

· Dangerous Operation of a Motor Vehicle on 1 August 2007 pursuant to s328A Criminal Code;

· Failure to comply with duty after accident pursuant to Regulation 287(2)(c) Transport Operations (Road Use Management…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilshire v Dowd

Details

AGLC: Wilshire v Dowd [2009] QDC 285
Case: [2009] QDC 285
Decision Date: 3 September 2009

CaseChat Overview and Summary

The appellant, Wilshire, appealed against a decision of the Magistrates Court of Victoria that found him guilty of dangerous operation of a motor vehicle and failure to comply with duty after an accident. The primary issue was whether the court should grant an extension of time to appeal and allow fresh evidence to be led. Additionally, the court had to consider the impact of the conviction on the appellant’s employment prospects and his status as a licence holder under the Security Providers Act 1993.

The Court of Appeal held that it was appropriate to grant an extension of time to appeal, considering the significant consequences of the conviction on the appellant's employment. The court recognised the importance of the appellant’s employment and the potential impact of a conviction on his ability to work as a security officer. The court noted that the submissions regarding the impact of the conviction had not been sought or made in the original proceedings. The court also examined the effect of the recording of the conviction under the Security Providers Act 1993, emphasising that the consequences of such a conviction could be severe for the appellant’s professional status.

As a result, the appeal was allowed, and the sentence imposed by the Magistrate was varied. The order that a conviction be recorded against the appellant was set aside, and no conviction was recorded for either offence. This decision relieved the appellant from the potential negative repercussions of the conviction on his employment and professional standing.

Orders

Orders of the court

The appeal is allowed;1.

The sentence of the Magistrate imposed against the appellant on 27 August 2007 is varied to the extent that the order that a conviction be recorded against the appellant is set aside; and2.

No conviction be recorded against the Appellant for either offence.3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wilshire v Dowd [2009] QDC 285
PARTIES:	AMANDA MARY WILSHIRE (Appellant) v LEE RYAN DOWD (Respondent)
FILE NO/S:	BD 3590/08
DIVISION:	Appeal
PROCEEDING:	Section 222 Appeal
ORIGINATING COURT:	Caboolture Magistrates Court
DELIVERED ON:	3 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2009
JUDGE:	Tutt DCJ
ORDERS:	The appeal is allowed;1. The sentence of the Magistrate imposed against the appellant on 27 August 2007 is varied to the extent that the order that a conviction be recorded against the appellant is set aside; and2. No conviction be recorded against the Appellant for either offence.3.
CATCHWORDS:	APPEAL – application for extension of time to appeal – application to lead fresh evidence – Plea of Guilty before magistrate of Dangerous Operation of a Motor Vehicle and Failure to comply with duty after accident – conviction recorded – submissions thereon not sought or made – impact on appellant’s employment prospects – Licence holder under Security Providers Act 1993 – effect of recording conviction on Licence under that Act Justices Act 1886 ss 222(1), 223(2), 224(1)(a) Penalties and Sentences Act 1992 ss 12(1), 12(2)(a)-(c) Security Providers Act 1993 ss 11(4)(e), 11(5) Criminal Code 1899 s 328A Transport Operations (Road Use Management – Road Rules) Regulation 1999 Reg 287(2)(c) R v Mentink (1996) 1 Qd R 532 R v Porter CA No 160 of 1997, 26 May 1997 R v Wolfven CA No 376 of 1997, 28 November 1997 R v Tatnell CA No 42 of 1996, 13 March 1996 R v Doyle CA No 70 of 1996, 2 May 1996 R v Tait (1999) 2 Qd R 667 Aldrich v Ross [2001] 2 Qd R 235 Warren v Coombes [1979] 142 CLR 531 State Rail Authority NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Fox v Perry [2003] 214 CLR 118 Allesch v Maunz [2000] 203 CLR 172 Norbis v Norbis [1986] 161 CLR 513 House v The King (1936) 55 CLR 499 R v Cay Gersch and Schell; ex parte A-G (Qld) (2005) QCA467 R v Briese; ex parte A-G (Qld) [1998] 1 Qd R 487 R v Seiler [2003] QCA217 R v Ndizeye [2006] QCA537 R v Brown; ex parte A-G (Qld) (1994) 2 Qd R 182. R v Kitson [2008] QCA 86.
COUNSEL:	Mr S Lynch for the appellant Ms K Overell for the respondent
SOLICITORS:	Quinn & Scattini for the appellant Office of the Director of Public Prosecutions for the respondent