Hinselwood v Abbott[2001] QCA 348

COURT OF APPEAL

McMURDO P

WILLIAMS JA

HOLMES J

CA No 129 of 2001

FIONA ANN HINSELWOOD

v.

GRAHAM STUART ABBOTT(Applicant)

BRISBANE

DATE 17/08/2001

JUDGMENT

THE PRESIDENT:  Justice Holmes will deliver her reasons first. 

HOLMES J:  The applicant seeks leave to appeal against the decision of a District Court Judge, striking out an appeal under section 222 of the Justices Act, on the ground of his non appearance.  He also applies for an extension of time, because the decision appealed from was made on 13 November 2000 and this application was not filed until 24 May 2001.

The applicant had appealed against a conviction of possession of tainted property.  The grounds of appeal in the notice of appeal he filed under section 222 of the Justices Act, were not well framed.  They consisted of assertions that the property was not tainted, that there might have been weaknesses in procedure and that he had given evidence which he claimed was uncontradicted.

He also wished to present fresh evidence, although whether it was fresh in the legal sense, may be questioned.  There were, it seems, a number of reasons why the Magistrate might have found the applicant's account not credible, but there are some concerns in the Magistrate's decision.  He appears to have accepted and relied on hearsay evidence in rebuttal, as to telephone inquiries made by the investigating police officer of unidentified persons at Telstra and Q-Build. 

Be that as it may, the original appeal to the District Court, was not entirely without prospects.  That appeal was set down for hearing on 31 October 2000, but according to what the learned Judge at first instance was told by the respondent's representative, it was adjourned till 13 November 2000, after Mr Abbott advised a new address.

He advised two addresses, it appears.  Letters were sent to both addresses in the possession of the Court, one of which was a post office box, advising of a new date.  One letter was returned unclaimed, the other was not.  When the applicant failed to appear on 13 November, the learned Judge at first instance on the application of counsel for the respondent, made under section 229 of the Justices Act, struck out the appeal and issued a warrant.

In doing so, he relied it appears on what was contained on the Court file as to the letters having been sent.  No material was actually put before him by the respondent.  The applicant says that he had made arrangements for a friend to pick up his mail from the post office box and a friend on this occasion delayed in passing the mail on.

The applicant was then arrested on 18 November and did not receive advice of the appeal date until it reached him in prison.  The principles governing an application for extension of time were considered in the Queen v. Tait, 1999, 2 Queensland Reports, page 667.

The Court will consider whether any good reason is shown to account for delay and whether it is in the interests of justice to grant the application which may of course involve some assessment of the strength of the appeal.  In this case, Mr Abbott explains the delay largely as being due to the difficulties of being confined in prison and for some period in maximum security.

He says that it has been difficult to conduct his appeal, except by writing for assistance and waiting for answers, all of which has been time consuming.  In the first instance, when he became aware that the appeal had been struck out, he wrote to the District Court Judge concerned and obtained a response from the Registrar of the District Court, advising of the possibility of an appeal such as this.

That letter was received in March of 2001.  It was not until May of 2001, that he was finally able to get a response from the Legal Aid office which provided him with forms.  I should say that there is no suggestion of prejudice to the Crown by reason of that delay.  It seems to me that the appeal has some merits. 

The application to strike out does not appear to have met the requirements of section 229(1) of the Justices Act.  That section provides that where default is made in prosecuting an appeal, another party, in this case the respondent, may apply to a Judge in Chambers by summons served on the appellant for an order discharging the notice of appeal.

There was no service of any kind on the appellant before the application was made.  Although reference was made by counsel for the respondent to something which was said in Von Schultz v. Durrant [2000] QCA 235 at page 5 of that judgment, I do not think that it really assists.  What the Court said there was:

"We also assume that an application to strike out an appeal to the District Court may be orally notwithstanding the terms of section 229(1)."

However, it was clear there that the assumption was made for the purposes of that application before the Court and also from the facts of that case, that the applicant there had been present in the District Court when the striking-out application was made.

It seems to me, therefore, that the requirements of section 229(1) were not met when his Honour purported to strike out the appeal.  In the circumstances, I would grant the application for leave to appeal.  I would extend the time for filing an appeal to 24 May 2001.  I would allow the appeal and set aside the order of the District Court in Appeal No 2236 of 2000 and I would order that the matter proceed in the District Court according to law.

THE PRESIDENT:  I agree.

WILLIAMS J:  I agree.

THE PRESIDENT:  The orders are as proposed by Justice Holmes.