Daniel v Lamb[2002] QDC 226

Issued subject to correction upon revision

APPELLANT JURISDICTION

JUDGE C F WALL QC

and

NO D34 of 2002

and

No D35 of 2002

and

No D36 of 2002

and

No D37 of 2002

and

TOWNSVILLE

DATE 23/07/2002

JUDGEMENT

HIS HONOUR: In each of these matters the respondent has applied under section 229(1) of the Justices Act for an order discharging the notice of appeal it being contended that the appellant has made default in the presentation of the appeal.

The basis for each application is non-compliance by the appellant with the provisions of section 222(2)(a)(i) of the Justices Act.

On the hearing of the applications in each case the appellant made an oral application under section 222(2A) of the Justices Act for an order extending time for service of the notice of appeal and it is convenient to deal with that application first.

In the Magistrates Court at Townsville on the 12th, 13th and 18th of January 2000 respectively the appellant was convicted of three offences of breaching a bail undertaking. On the 2nd of May 2000 he was convicted by the same Court of two offences of obstructing a police officer and one offence of assaulting a police officer. When a fine was imposed for the last three offences the appellant said he told the Magistrate he would consider appealing against the decision to convict him. That of course does not constitute an appeal in fact.

Section 222(2)(a)(i) of the Justices Act required that within one calendar month of those dates the appellant serve on the complainant for each offence and on the clerk of the Magistrates Court at Townsville a notice of appeal.

The appellant did not service notices of appeal on the clerk of the Court until the 21st of December 2001. The material is silent as to whether the complainants have been served but for present purposes it does not really matter.

Section 222(2A) provides as follows:

This provision requires an applicant for enlargement of time to establish that he was unable to service notice within time before the discretion to extend time can be said to exist. It also requires that the applicant establish that the inability was due to no fault of his own before the discretion to enlarge can be said to exist. See GSA Industries (Aust) Pty Ltd v. Tully [1995] 1 Queensland Reports 607.

At all times the appellant has been self represented. He has applied unsuccessfully for legal aid.

On the 21st of December 2000 the appellant sought to appeal to the Court of Appeal against the decisions to convict him on the 2nd of May 2000. At the same time he applied to the Court of Appeal for an extension of time to appeal citing as the reasons for the delay in giving notice:

The Acting Deputy Registrar of the Court of Appeal advised him by letter dated the 8th of January 2001 that, “the avenue of appeal lies to the District Court under section 222 of the Justices Act.”

It is not entirely clear but it appears that in early January 2001 the appellant then sought to appeal against the 2nd of May 2000 convictions by forwarding a notice of appeal to the District Court Registry in Townsville. The notice of appeal may have been the same as the document he sought to file in the Court of Appeal. He was advised by letter dated the 11th of January 2001 that the notice of appeal should be “forwarded to the Magistrates Court, P O Box 985, Townsville, Queensland, 4810.”

What may have then occurred is that he sought to file the same Court of Appeal notice of appeal in the Magistrates Court at Townsville. The clerk of the Court wrote to him on the 26th of April 2001 advising that such an “application cannot be lodged at this office” and stating:

The appellant deposes that he did not receive this letter until the 19th of December 2001 which resulted in the further delay.

Notices of appeal in the correct form were served on the clerk of the Court, Townsville, on the 21st of December 2001.

When I asked the appellant why he could not serve the notices of appeal within one month he said:

The appellant has also been involved in ongoing disputes with the Legal Aid office in relation to legal assistance for him.

Putting it at its highest for the appellant he seems not to have served notices of appeal within time because he was initially discouraged by what had happened to him in the Magistrates Court particularly on the 2nd of May 2000, had lost hope in achieving justice for what he considered trumped up charges involving the police officers and because of his state of mind at the time.

In my view he has not established that he was in fact unable to serve notice within time. I think initially he was minded to appeal, told the Magistrate so, then changed his mind and was resigned to accepting what had happened to him, he was willing to accept what had happened and then later changed his mind again. If I am wrong on this aspect I am firmly of the view that he has not established that his inability to serve the notices within time was due to no fault on his part. I am satisfied that initially he made a conscious decision, albeit perhaps reluctantly, not to appeal and later changed his mind.

In my view no basis has been established for extending time for service of the notice of appeal in each case and the applications to extend time will be dismissed. The appeals are therefore out of time and the respondent in each case is entitled to an order that each notice of appeal be discharged.

In each case I make the following orders:

That is the end of your appeals now, Mr Daniel. I considered all of the material including your affidavits and I cannot see that there is any ground, having regard to the rules that I am required to follow, for extending time.

APPELLANT: Very well, sir.