Shi v Chief Executive Officer of Customs
[2005] QDC 2
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- Unreported Judgment
- Shi v Chief Executive Officer of Customs[2005] QDC 2
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Shi v Chief Executive Officer of Customs[2005] QDC 2
Shi v Chief Executive Officer of Customs[2005] QDC 2
DISTRICT COURT OF QUEENSLAND
CITATION: | Shi v Chief Executive Officer of Customs [2005] QDC 002 |
PARTIES: | ZHENG SHI (Applicant) V CHIEF EXECUTIVE OFFICER OF CUSTOMS (Respondent) |
FILE NO/S: | 2734 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Chamber application |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 20 January 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2004 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Application for extension of time in which to appeal – fine – importation of garlic bulbs – whether the applicant should be granted an extension of time within which to appeal on the basis that he was not aware and/or was not advised that he could appeal the order. Acts Interpretation Act (Qld) 1954 s 20. Justices Act 1886 (Qld) s 222. Crowley v Barrett [1999] QDC 283. Di Carlo v Dubois [2004] QSC 41. GSA Industries (Aust) Pty Ltd v Tully [1995] 1 Qd R 607. O'Callaghan v Hall & Hall (unreported decision of Court of Appeal no. 133 of 1993) Robertiello v Dilione & Anor [2002] QDC 173. |
COUNSEL: | Mr M Hogan for the Respondent. Applicant appeared in person. |
SOLICITORS: | Australian Government Solicitor for the Respondent. |
Introduction
- [1]This is an appeal by Zheng Shi pursuant to s 222 of the Justices Act 1886 (Qld) (“the Act”) against the severity of sentences imposed on him by the Magistrates Court at Brisbane on 6 September 2002. The Notice of Appeal was filed on 2 August 2004 concurrently with a notice of application for an extension of time within which to appeal.
- [2]The matter came before His Honour Judge McGill of this Court on 16 August 2004 when the applicant was informed that as his Notice of Appeal was substantially out of time it would be necessary for him to file an affidavit to support his application for an extension of time within which to file his Notice of Appeal against the sentences imposed on him, and as a result the matter was then adjourned for hearing on 11 October 2004.
- [3]At the time of this hearing the applicant had not filed any further material to support his application but for practical purposes the matter proceeded as an application for an extension of time for the applicant to proceed with his appeal.
- [4]As stated in paragraph [1] above, the convictions and penalties from which this application flows were imposed by the Magistrates Court at Brisbane on 6 September 2002, some one year 11 months before this application was filed.
The Charges
- [5]At the time of the offences the applicant was a 39-year-old man born in China and now resident in Australia. The charges related to an incident that occurred on 16 April 2002 when the applicant arrived at the Brisbane International Airport on an international flight from Brunei. At the time of arrival the Applicant was carrying 11 garlic bulbs weighing 700 grams.
- [6]The circumstances surrounding the charges were that upon arrival in Australia the applicant had completed an “Incoming Passenger Card” for Australian Customs officials which had been signed and dated by him. In this document the applicant had answered ‘no’ to the following questions:
“Are you bringing into Australia:-
- Food of any kind – includes dried, fresh, preserved, cooked, uncooked – anything you can eat or cook?
- Wooden articles, parts of plants, traditional medicines or herbs, seeds, bulbs, straw, nuts?”[1]
- [7]The applicant was charged with, pleaded guilty, and was convicted of the following offences:-
- (i)Importing prohibited import pursuant to s 67(1) of the Quarantine Act 1908 (Clth); and
- (ii)Making a false or misleading statement pursuant to s 234(1)(D)(1) of the Customs Act 1901 (Clth).
The penalties imposed on each charge were as follows:-
CHARGE 1:Conviction recorded; fined $5,000.00 plus $359.00 costs in default 12 weeks imprisonment; allowed 30 months to pay. | CHARGE 2:Conviction recorded; fined $1,500.00 plus $359.00 costs in default four weeks imprisonment; allowed 30 months to pay. |
- [8]At the hearing of the charges on 6 September 2002 the applicant was represented by an experienced solicitor from Legal Aid Queensland and submissions were made on his behalf in mitigation of the anticipated penalties to be imposed after a plea of guilty was entered to each charge.
- [9]Notices of Conviction were sent to the applicant by the Brisbane Magistrates Court on or about 18 September 2002 at the same address as had been the summonses which the applicant had duly received.
Relevant Legislation
- [10]Until the Act was amended with effect from 5 January 2004 the legislation relevantly provided that for appeals to this Court:
“222 Appeal to a single judge
…
(2) …
(a) the appellant shall –
- (i)within 1 calendar month after the decision serve on the person concerned in upholding such decision and on the clerk of the court at the place where the decision was given a notice of appeal in the approved form stating the grounds of the appeal and where the appellant wants the appeal to be heard and decided under the District Court Act 1967”.
- [11]The applicant was also required to comply with various other conditions set out in s 222 of the Act.
- [12]It was also provided under s 222(2A):
“However, if the appellant can not give notice under subsection (2)(a), through no fault of the appellant’s, the appellant may apply to a District Court judge for an order extending time for service of the notice and, if necessary, for substituted service.”
- [13]On 5 January 2004 the Act was amended[2] to provide that in respect of an appellant seeking an extension of time within which to appeal a decision of the Magistrates Court:
“224 Powers of judge incidental to appeal
- (1)For an appeal, a District Court judge may, on the application of a party or the judge’s own initiative –
- (a)extend the time for filing a notice of appeal; or
- (b)make orders and give directions about service of any notice and about any procedure; or
- (c)amend the notice of appeal or the statement of grounds of the appeal; or
- (d)adjourn the appeal for the time decided by the judge.
- (2)For anything under subsection (1), the judge may impose conditions the judge considers appropriate, including, for example, ordering 1 or both of the following –
- (a)subject to section 232(4), payment of costs;
- (b)for anything other than an adjournment – an adjournment.
- (3)If a District Court judge is exercising a power under this section on the judge’s own initiative, then, if the parties are not before the court, the judge must direct the parties to attend the court.
- (4)If a party is applying to a District Court judge to exercise a power under this section against another party, then, unless the other party is before the court, the party must serve a copy of the application on the other party.
- (5)Subsection (1) has no effect on the responsibility or power of the Chief Judge under the District Court of Queensland Act 1967, section 28A.”
- [14]To be successful in this appeal the applicant must therefore firstly persuade the Court that it should extend the time within which he may file and/or serve his Notice of Appeal pursuant to the relevant legislation applicable to his circumstance after considering that the legislation has been amended between the time the sentences were imposed upon him and when he filed his current Notice of Appeal documents.
- [15]It is submitted by the respondent that the legislation which applies to this application is that which was applicable prior to the amending legislation of 5 January 2004, that is the former s 222 referred to in paragraph [10] above, as when the Justices Act was amended there were no transitional or other provisions dealing with the question of which legislation would apply to an appeal commenced after the amendment became law in respect of an event which occurred prior to the amendment.
- [16]It is further submitted on behalf of the respondent that s 20 of the Acts Interpretation Act (Qld) 1954 reinforces that contention. Reference was also made to the remarks of McGill SC DCJ in the matter of Crowley v Barrett [1999] QDC 283 when commenting upon the effect of whether amendments to legislation are procedural or substantive.
- [17]As is evident from a consideration of the “old” and “new” legislation, a potential appellant is faced with different tests in attempting to persuade a Court to extend the time for the filing and/or service of a Notice of Appeal.
- [18]Under the former s 222(2A) of the Act the Court of Appeal affirmed that the section should be interpreted:
“…… so as to require an applicant for enlargement of time to establish that he or she was unable to serve notice within time before the discretion to extend time can be said to exist (and) …… that the inability was due to no fault of his or her own before the discretion to enlarge can be said to exist.”[3]
- [19]In this matter the Applicant did nothing for almost two years after the convictions were recorded and sentences imposed, and consequently he cannot rely on the fact that he was “… unable to serve notice within time …” as provided by the then existing legislation.
- [20]The amending legislation provides the Court with a wide discretion on the issue but, as was said by Mackenzie J in Di Carlo v Dubois [2004] QSC 41, “… in considering whether or not to grant an extension of time, prospects of success and explanation for delay are relevant factors.”
- [21]Further to this, in the matter of Robertiello v Dilione & Anor [2002] QDC 173, his Honour Judge Forde, in dealing with an extension of time in which to appeal, referred to an unreported decision of the Court of Appeal in O'Callaghan v Hall & Hall (Appeal no 133 of 1993), the delay being 18 months, where the Court said:
“… only in the most extraordinary circumstances, and to avoid plain injustice, could this Court consider granting an extension of time to appeal after such a long and unjustifiable delay as has occurred here.”
Grounds of Appeal
- [22]In his application for an extension of time the applicant’s grounds are stated as:
“I English not good, no one tell me I must before 28 days to appeal sentence (I thought 2 and half years time) also that time I have no any money in the Bank so I scare to see a solicitor (them ask big money) I didn’t’ thing Legal Aid can do this for free”.
- [23]The applicant’s grounds of appeal are in general terms namely: “… that the sentences are manifestly excessive in all of the circumstances”.[4]
- [24]The Court heard at the hearing of this application that the applicant is an artist who sometimes works “… in the Queen Street mall” and was alerted to his right of appeal by an unknown customer.
- [25]The applicant has not filed any affidavit material to support his application although the evidence shows that he was clearly advised to do so.
- [26]Whilst the applicant’s English is not good he elected to appear in person and, notwithstanding his limitations, was able to explain the basis of why the Court should grant an extension of time within which he might appeal the sentences, namely that he was unaware of his rights of appeal.
Conclusion
- [27]In my opinion the relevant legislation under which this application should be considered is the legislation which existed prior to the amendment of 5 January 2004 but, in any event, if I were to consider the matter under the “new” legislation I would come to the same conclusion. It is my view that the applicant fails all relevant tests to persuade the Court to grant him an extension of time within which to appeal the original sentences under either legislation. In reaching this conclusion I have considered the following:-
“Right, you have two and half years in which to pay those fines and costs Mr Shi. As I have indicated you can apply to convert the fines into unpaid community service, but if that be your intention, I would suggest that you do not, as it were, sit on your hands and do nothing for two and a half years and then suddenly apply to the Clerk of the Court for what is called a fine option order because if you wait that long, commonsense might suggest to you that the Clerk of the Court might say well you have waited too long and I am not going to make a fine option order. If you are serious then to work off the fines by performing unpaid community service, then I suggest that you make that application as quickly as possible.”[5]
- The applicant pleaded guilty to the charges at first instance and was legally represented by Ms Gilbert from the Legal Aid Queensland office.
- He was afforded all reasonable opportunity to state his case before the learned Magistrate and was even granted a short adjournment to enable him to give Ms Gilbert further instructions.
- The learned Magistrate explained to him in clear terms the nature of the fines imposed as the following passage from the transcript confirms:
- The applicant has provided no affidavit material to the Court to confirm whether he attempted to take any steps to pursue the question of appeal at any time before almost two years had elapsed when the current Notice of Appeal documents were lodged and on the contrary it appears he did nothing.
- Although the applicant claims that the garlic bulbs were traditional Chinese medicine and not a foodstuff, it is clear from the Incoming Passenger Card he signed, that “traditional medicines” were another category of items which were required to be declared to the Customs Department but the applicant failed to do so.
- The applicant has described himself as a businessman who has had dealings with the Customs Department previously in the importation of small radios, so that it cannot be said that he is totally unfamiliar with Customs regulations and the declarations required thereunder.
- [28]Further on a consideration of the facts of the matter it is almost inevitable that even if the time were extended to allow the applicant to appeal, such appeal would be unsuccessful.
- [29]I am therefore satisfied that the applicant’s failure to give notice of appeal in time did not arise through no fault of his or, alternatively, I am satisfied that there is no injustice to the applicant in refusing to grant him an extension of time within which to appeal the sentences imposed, and further, he has failed to provide any explanation for his long delay in the filing and/or service of his Notice of Appeal documents.
- [30]In all the circumstances my orders will be as follows:
- The application for an extension of time within which to lodge a Notice of Appeal pursuant to section 222 of the Justices Act 1886 is dismissed; and
- The applicant pay the respondent’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.
Footnotes
[1] Exhibit “MEH1” to affidavit of M Hanson filed 16 August 2004.
[2] ss 75/76 Evidence (Protection of Children) Amendment Act 2003.
[3] See GSA Industries (Aust) Pty Ltd v Tully [1995] 1 Qd R 607 at 610.
[4] See Notice of Appeal filed 2 August 2004.
[5] Transcript at page 6-7 of the Magistrate’s decision.