Pershouse v Queensland Police Service
[2013] QCA 296
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- Unreported Judgment
- Appeal Determined (QCA)
- Pershouse v Queensland Police Service[2013] QCA 296
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Pershouse v Queensland Police Service[2013] QCA 296
Pershouse v Queensland Police Service[2013] QCA 296
SUPREME COURT OF QUEENSLAND
CITATION: | Pershouse v Queensland Police Service [2013] QCA 296 |
PARTIES: | PERSHOUSE, Peter John |
FILE NO/S: | CA No 122 of 2013 DC No 23 of 2011 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Gympie |
DELIVERED ON: | 4 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 July 2013 |
JUDGES: | Margaret McMurdo P and Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Application for extension of time for filing application for leave to appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was fined $220 for the offence of disobeying the speed limit and ordered to pay costs of the court – where he was notified of the original Magistrates Court hearing but did not attend and the matter was dealt with ex parte at the prosecutor’s request under s 142 of the Justices Act 1886 (Qld) – where the applicant failed to file a notice of appeal in the District Court within the one month period stipulated by s 222(1) of the Justices Act – where he unsuccessfully applied under s 222 Justices Act to the District Court for an extension of time to appeal – where the learned judge accepted the explanation the applicant gave for the delay in filing the notice of appeal however found that the applicant failed to produce evidence, or to challenge the evidence adduced at the Magistrates Court hearing – where the learned judge found that having regard to the totality of the evidence none of the applicant’s complaints could justify setting aside the conviction and dismissed the application – where the applicant now applies for an order extending time for filing and serving his application for leave to appeal just short of four months out of time – where the applicant asserts that he was informed by the State Penalties Enforcement Registry (‘SPER’) in a telephone conversation in January 2013 that the police complaint had been withdrawn and that his ‘balance was nil’ – where no evidence was tendered in support of this assertion – where the applicant received further notices from SPER in April and May 2013 – where the complaints made by the applicant are incapable of founding a viable appeal to this Court – whether there was an error on the part of the learned judge in exercising the discretion to dismiss the application for extension of time for appealing – whether it is in the interests of justice to grant the applicant an extension of time Criminal Code 1899 (Qld), s 25 Criminal Practice Rules 1999 (Qld), r 85 District Court of Queensland Act 1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 142, s 222, s 224 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 20 Transport Operations (Road Use Management) Act 1995 (Qld), s 124 Merrin v Commissioner of Police [2012] QCA 181, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited Tierney v Commissioner of Police [2011] QCA 327, cited |
COUNSEL: | The applicant appeared on his own behalf P J McCarthy for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- MARGARET McMURDO P: The applicant was fined $220 for the offence of disobeying the speed limit under s 20 Transport Operations Road Use Management (Road Rules) Regulation 2009 (Qld) and ordered to pay $73.80 costs of court. He unsuccessfully applied under s 222 Justices Act 1886 (Qld) to the District Court for an extension of time to appeal. This is another application for an extension of time, this time to apply for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) from the District Court judge's order. For the reasons given by Gotterson JA, the applicant has not demonstrated that it is in the interests of justice to grant him an extension of time. I agree with the order proposed by Gotterson JA.
- HOLMES JA: I agree with the reasons of Gotterson JA and the order he proposes.
- GOTTERSON JA: On 21 December 2012, a judge of the District Court at Maroochydore dismissed an application made on 26 September 2011 by Peter John Pershouse for an extension of time within which to appeal to that court (“the dismissal order”). Mr Pershouse wished to appeal under s 222 of the Justices Act 1886 against a conviction recorded against him by an acting magistrate at Gympie on 27 July 2011 of an offence against s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. He was convicted of driving at a speed over the speed limit on 1 June 2010.
- Mr Pershouse wishes to seek leave under s 118(3) of the District Court of Queensland Act 1967 to appeal to this Court from the dismissal order. Rule 85 of the Criminal Practice Rules 1999 requires that for an application for leave to appeal under s 118, a notice of application for leave to appeal must be filed within the appeal period and be served as soon as practicable on all other parties to the appeal, unless the court of appeal orders otherwise. The last day of the appeal period was 21 January 2013.[1] Mr Pershouse had not by the expiration of that day filed an application for leave to appeal. He did not do so until 17 May 2013. Hence he applies for an order of this Court under s 118(3) extending time for filing and serving his application for leave to appeal.
Circumstances of the conviction
- The reasons for decision of the acting magistrate reveal an attenuated history commencing with the service on Mr Pershouse of a sworn complaint and summons for the infringement on 14 July 2010. The history was elaborated by the learned judge. It is unnecessary to detail it here other than to note that it includes a conviction and fine in his absence on 23 December 2010 which was re-opened in the following month. Then there were a number of adjournments. Ultimately, the matter was set down for hearing on 27 July 2011. Mr Pershouse did not object to that date but he did not appear. The acting magistrate dealt with the matter ex parte at the prosecutor’s request under s 142 of the Justices Act. The court received oral evidence from Senior Constable Hardgraves who had operated the speed detection device which recorded Mr Pershouse driving on the Bruce Highway at Gympie at 74 kph and at more than the 60 kph speed limit. Documentary evidence in the form of certificates as to the accuracy and operation of the device, were tendered. The acting magistrate proceeded on the footing that there had been no challenge by Mr Pershouse under the Transport Operations (Road Use Management) Act 1995 (“TORUM Act”) to the accuracy of the device or the way it was used.
- The acting magistrate was satisfied that “each and every element of the offence has been proved beyond any reasonable doubt”. He convicted Mr Pershouse, fined him $220 and ordered him to pay costs of $73.80.
The application to the District Court
- Mr Pershouse failed to file a notice of appeal in the District Court within the one month period stipulated by s 222(1) of the Justices Act. Accordingly, it was necessary for him to seek an order under s 224(1)(a) thereof extending time for filing a notice of appeal until 26 September 2011. Mr Pershouse represented himself. At his request, his Honour determined the application principally upon written outlines of submissions and the record of the Magistrates Court proceedings.
- The learned judge accepted the explanation Mr Pershouse gave for the quite short delay in filing the notice of appeal.[2] He then proceeded to consider the merits of the proposed appeal. In this regard, his Honour identified two particular difficulties with the matter. He explained them as follows:
“[15]However two difficulties immediately emerge in respect of this matter. First there are no discreetly identified grounds of appeal.[3] However and from the documents attached to the notice of appeal and more particularly the outline of submissions most recently prepared by the applicant, it can be discerned that he particularly makes the following complaints:
‘(a)The prosecution mislead the Court that I had not filed a Notice of Intention to Challenge or Dispute the form which lead A/Magistrate Beutel to make an error of fact and an error in law. Because the facts comprehensively rebuts (sic) the prosecution claim and opens the question of whether the prosecution mislead the court intentionally, or otherwise, the new evidence should be allowed in this Appeal.
(b)The Magistrate made a mistake in law by accepting Hargreaves evidence that there was no recording taken and that it was an administrative error contradicting the substance and form of the Complaint attributed to the hand of Edwards, who gave no such evidence.
(c)It therefore follows that there must still be reasonable doubt a conversation recorded particular on the Complaint was not an error but was lost, (a la the Notice of Intention to Challenge or Dispute form) or destroyed because it was detrimental to the police case.
(d)There is no proof beyond reasonable doubt that Hargreaves was qualified, requalified or authorised to operate the LIDAR at all or in that particular location. The certificates tendered imply so, but do not implicitly say so, and on all the evidence it cannot be assumed beyond a reasonable doubt that Hargreaves actually did what the certificates imply or says he did.
(e)The conviction was unsafe and unsatisfactory.
(f)A message should be reinforced that the prosecution must not be allowed to pass off procedural and administrative errors or negligence as innocent mistakes at the expense of wrongful findings against their accused.
(g)Because the police and/or prosecution mislead the Magistrate, whether intentionally or not, the conviction should be overturned.’
[16]The second difficulty is that, in the absence of leave to adduce new evidence,[4] the re-hearing conducted on the appeal must be on the evidence in the record. Here that evidence was taken in the absence of the applicant and to the extent to which it is apparent from the complaints set out above that he seeks to challenge the effect and cogency of the prosecution evidence and the credibility of the only crown prosecution witness, obviously none of this has been made the subject of any cross-examination or presentation of evidence establishing any competing facts, at the hearing in the Magistrates Court.”
- His Honour observed that in view of Mr Pershouse’s failure to produce evidence, or to challenge the evidence adduced at the Magistrates Court hearing, even if the conviction were set aside, the matter would have to be remitted to the Magistrates Court for re-hearing under s 225(2) of the Justices Act.[5]
- Citing the decision of this Court in Teelow v Commissioner of Police,[6] the learned judge noted, firstly, that subject to the admission of any additional evidence, the appeal by way of re-hearing was on the Magistrates Court record of proceedings; and, secondly, that the powers of the District Court, as an appellate court, were exercisable only where the applicant could demonstrate that having regard to the totality of the evidence before the appellate court, the order that is the subject of appeal was the result of some legal, factual or discretionary error. The learned judge then considered the appellant’s complaints and concluded that none of them would justify setting aside the conviction.[7] Since an appeal based on these grounds would fail, his Honour dismissed the application for an extension of time to appeal.
The application to this Court
- The material filed in this Court by Mr Pershouse on 17 May 2013 consists of an application for extension of time in Form 29 to which is attached some documents including an application for leave to appeal in Form 27. The Form 29 sets out grounds for the application to extend time; and the Form 27, grounds for the grant of leave to appeal. Mr Pershouse has not supported his application with any evidence by way of affidavit or otherwise.
- Mr Pershouse prepared this material and represented himself at the hearing of the application for extension of time on 18 July 2013. He appeared by telephone link. His oral submissions supplemented written submissions filed by him on 16 July 2013.
Approach to the application
- Referring to several previous decisions of this Court, McMurdo P, Thomas JA and Cullinane J observed in R v Tait:[8]
“… These suggest that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.”[9]
These observations indicate that, here, aspects of delay and the viability of the proposed application for leave to appeal are principal considerations. It is convenient to consider them separately.
Aspects of delay
- The delay in filing the application for leave to appeal is a little short of four months. The respondent Queensland Police Service (“QPS”) does not complain of any prejudice to it on that account.
- Mr Pershouse asserts in the Form 29 and his written submissions that he was informed by the State Penalties Enforcement Registry (“SPER”) in a telephone conversation on 3 January 2013 that the police complaint had been withdrawn and that his “balance was nil”. He has not tendered any evidence in support of this assertion. On its face, the assertion is dubious given that his application was dismissed by the District Court but a fortnight earlier. Documents attached to the Form 29 indicate that on 10 April 2013, he was informed by the learned judge’s associate that the dismissal of his application meant that the Magistrates Court order remained in place with the normal consequences of such an order, and that on 30 April 2013 he was informed by the Magistrates Court at Gympie that “the matter was referred back to SPER on 28 March 2013”. Shortly afterwards, Mr Pershouse received two notices from SPER requesting payment of $293.80 by 30 April and 9 May 2013 respectively.
- The explanation that Mr Pershouse has given for the delay is dependent upon his account of the telephone call with SPER. He did not give evidence of it, hence his account was not tested by cross-examination. Whilst the explanation given is, for that reason, less than satisfactory, I would not refuse the extension of time solely on that basis.
Viability of the proposed application for extension of time
- Consideration of the viability of the proposed application for extension of time need adopt, as its frame of reference, the viability of the proposed appeal for which leave is sought. That being so, the following observations of this Court in Tierney v Commissioner of Police[10] identify the burden that Mr Pershouse would bear in any appeal:
“[35]The District Court decision against which the applicant wishes to appeal was not a decision on an appeal under s 222 of the Justices Act 1886 (Qld), but rather a decision against a discretionary refusal to grant an extension of time under s 224(1)(a). Accordingly, if leave to appeal were granted, to succeed on the appeal the applicant would have to show error in the exercise of that discretion.”[11]
- In his written submissions, Mr Pershouse collected his complaints with respect to the decision of the learned judge under four headings as follows:
- TORUM s 124(4) Notice of Intention to challenge or dispute notice.
- Conversation recorded.
- Common practice.
- Integrity of the prosecution case.
The question for this Court is whether the matters raised under any of these headings reveal error on the part of the learned judge in exercising the discretion to dismiss the application for extension of time for appealing to that court.
- TORUM Notice: At the foundation of this complaint is the proposition that Mr Pershouse had given a valid notice under s 124(4) of the TORUM Act to the QPS. The acting magistrate had proceeded on information from the prosecutor that no s 124 Notice had been given. It appears that, in fact, Mr Pershouse had filled out in handwriting a standard “Intention to Challenge or Dispute” pro forma. It stated his grounds for challenge or dispute to be:
“Based on the integrity of the RADAR operator as evidenced by the inaccuracy of his statement which can be disproved by the video recording which the prosecutor is refusing to supply me a copy or put into evidence”.
The document appears to bear a date in July 2010. Mr Pershouse forwarded it to the QPS.
- This document was not brought to the attention of the acting magistrate. I pause here to say that there is no evidentiary basis for a suspicion, let alone a finding, that the court was intentionally misled by the prosecutor with respect to it.
- Section 124(4) of the TORUM Act requires that written notice to that effect be given by a “defendant who intends to challenge –
- the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); or
- the time at, or way in, which the relevant device was used”.
- The notice must be in the approved form and inter alia state the grounds on which the defendant intends to rely to challenge a matter mentioned in subs (4)(a) or (b): s 124(5).
- Plainly, the grounds stated by Mr Pershouse in the form challenge neither the accuracy of the speed detection device, nor the time at, nor the way in, which it was used at the relevant time. The form he prepared failed to comply with s 124(5) in these respects. It was therefore not a valid notice for the purposes of s 124(4) of the TORUM Act. There was no error on the part of the acting magistrate, which was undetected by the learned judge, in proceeding on the footing that no valid s 124(4) notice had been given and in deciding to deal with the matter in Mr Pershouse’s absence.
- Conversation recorded: This complaint contends that the Complaint and Summons served on Mr Pershouse contained a statement on it “conversation recorded”. He interprets this statement as being a reference to a conversation between him and Senior Constable Hardgraves after his vehicle had been stopped. Mr Pershouse was advised prior to the Magistrates Court hearing that that conversation had not been recorded. Senior Constable Hardgraves gave evidence confirming that that was the case. The acting Magistrate accepted that evidence as clearly he was entitled to do, and as his Honour so held. Furthermore, Mr Pershouse has quite failed to establish how the content of such a conversation, whether disputed or not, could have relevance to the detection of speeding on his part.
- Common Practice: This complaint invites invidious speculation about what is alleged to be “common practice” by the prosecution in “(determining) the merits of a Notice of Intention to Challenge or Dispute and whether they will present it to court”. No proof of such a “common practice” was offered by Mr Pershouse. The complaint bespeaks no error on the part of the learned judge.
- Integrity of the prosecution case: This complaint builds upon the invidious speculation and makes unsubstantiated insinuations of a vendetta against Mr Pershouse by Senior Constable Hardgraves, insinuations that he did not seek to substantiate by attendance at the Magistrates Court hearing and cross-examination of the police officer. This ground, too, does not bespeak error on his Honour’s part.
- Beyond these complaints, the material filed by Mr Pershouse suggests that had he defended the prosecution, he would have sought to rely on the “extraordinary emergencies” defence for which s 25 of the Criminal Code (Qld) provides. The essence of such a defence is that an ordinary person possessing ordinary power of self-control could not reasonably be expected to have acted otherwise in the particular circumstances of sudden or extraordinary emergency. The factual basis for the proposed defence appears to be that Mr Pershouse was being “tailgated” at the time when the speed of his vehicle was recorded. Clearly, being “tailgated” is not a sudden or extraordinary circumstance in which the ordinary driver cannot reasonably be expected to do other than to exceed the speed limit. That defence would have no prospect of success.
Disposition
- In summary, these complaints that Mr Pershouse has made are incapable of founding a viable appeal to this Court. An appeal based on them would be destined to fail. No useful purpose would therefore be served by extending time for applying for leave to appeal. It follows that it is not in the interests of justice to extend time for filing an application for leave to appeal.
Order
- I would propose the following order:
- Application for extension of time for filing application for leave to appeal refused.
Footnotes
[1] See definition of “appeal period” in Criminal Practice Rules, Schedule 6.
[2] Reasons [10]-[12], [27].
[3] As required by s 222(8)(a) of the Justices Act.
[4] Which may be allowed pursuant to s 222(2) of the Justices Act.
[5] Reasons [18], [23].
[6] [2009] QCA 84 at [2]-[4]; approved in Merrin v The Commissioner of Police [2012] QCA 181 at [10].
[7] Reasons [28]-[49].
[8] [1999] 2 Qd R 667.
[9] At [5]. (Footnotes omitted.)
[10] [2011] QCA 327.
[11] At [35].