Keenan v Queensland Police Service
[2005] QDC 389
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- Keenan v Queensland Police Service[2005] QDC 389
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Keenan v Queensland Police Service[2005] QDC 389
Keenan v Queensland Police Service[2005] QDC 389
DISTRICT COURT
CIVIL JURISDICTION
JUDGE BRITTON SC
MACKAY
No 95 of 2004
PAUL GERRARD KEENAN | Applicant |
and
QUEENSLAND POLICE SERVICE | Respondent |
ROCKHAMPTON
..DATE 18/11/2005
JUDGMENT
HIS HONOUR: This was an application by the respondent to an appeal under section 222 of the Justices Act 1886 (“the Act”) for an order that the appeal be struck out.
On 13 June 2004, Paul Gerrard Keenan (“the appellant”) was convicted at the Magistrates Court, Rockhampton of one charge of driving whilst disqualified.
On the 11th of October 2004, the appellant was sentenced. He was fined $1,200 and it was ordered that he be disqualified from holding or obtaining a driver's licence for two years.
On the 15th of October 2004, the appellant filed his notice of appeal. The grounds of the appeal were, “I feel the sentence was too severe as I need a job truck driving to be able to look after my family”. Since then, the appellant has taken no steps to prosecute the appeal.
In particular, the appellant has not complied with Practice Direction number 5 of 2001 in that he did not file and serve an outline of argument within 28 days of filing the notice of appeal and, indeed, has not filed an outline of argument at all.
The present application was filed on behalf of the respondent on 4 October 2005. The application is brought pursuant to section 229 of the Justices Act. Subsection 1 of that Act provides “(1) if the appellant delays in prosecuting the appeal or fails to take a necessary step to present the appeal, a District Court Judge may strike out the appeal on application in the approved form by a party to the appeal”.
The applicant has complied with subsection 229 (2) by sending a copy of the application to the appellant's address for service at least 10 days before the date of hearing of the application.
There was no appearance by or on behalf of the appellant on the hearing of this application. On 9th August 2005, the applicant wrote to the appellant advising him that time limits applied to the appeal and that failure to comply with those time limits could jeopardise his appeal.
The letter also advised the appellant that he was required to file an outline of argument. The office of the Director of Public Prosecutions did not receive any response from the appellant. I was referred to the decision of the Court of Appeal in R v. Tait (1999) 2 Qd R 667 which was an application for an extension of time in a criminal appeal.
There it was held that on such an application, the Court of Appeal would examine whether there was any good reason shown to account for the delay and consider overall whether it was in the interests of justice to grant the extension.
The Court also said that 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 there is a fit case for granting the extension.
Other relevant factors include prejudice to the respondent and the length of the delay it being much easier to excuse a short delay. In R v. Bodnar (2001) QCA 127, the Court of Appeal followed and affirmed its previous decision. The present application, of course, is not for an extension of time but for the appeal to be struck out but it is submitted that the principles to be applied are similar.
Here, of course, there is no explanation whatsoever for the delay in prosecuting the appeal but the delay is substantial. It is now over 12 months since the time for filing and serving the appellant's outline of argument expired.
Now as to the question whether it is in the interests of justice that the appeal should not be struck out but allowed to continue, there is nothing which suggests that there is any merit in the appeal. I have already referred to the ground of appeal set out in the notice of appeal.
Copies of the appellant's Queensland criminal history, his Victorian criminal history and his Queensland traffic history have been placed before the Court. In Queensland, the appellant has a variety of convictions. Some are for offences of dishonesty. Some are for offences of violence. Some are for drug offences and he also has a conviction for break and enter with intent, in respect of which he was sentenced to 12 months imprisonment.
In Victoria, he has three convictions relating to property but those convictions occurred in 1982. In relation to his traffic history, it includes three convictions for driving with his concentration of alcohol in his blood being over the prescribed limit. There was also one for failing to supply a specimen of breath.
Those convictions were between 1989 and 1992. He was disqualified from driving in respect of each of those matters for periods ranging from 10 months to two years. He was also ordered to be disqualified in respect of a range of other offences.
He has twice previously been convicted of driving whilst disqualified (on the 29th of April 1991 and the 24th of September 1992). On both of those occasions, he was disqualified absolutely from holding or obtaining a driver's licence. In respect of the two absolute disqualifications, they were both removed on the 1st of October 2004 but prior to that, he had committed the offence which is the subject of this appeal on the 13th of June 2004.
Section 78 (3)a of the Transport Operations (Road Use Management) Act 1995 provides “If the Court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the Court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance-
- (a)if the person committed the offence while the person was disqualified, by any Court order, from holding or obtaining a driver licence - for a period, of at least two years but not more than five years, decided by the Court”.
The appellant was a person failing within section 78 (3) a and it appears that the minimum period of disqualification which could have been ordered by the Magistrate was two years.
This was the period he in fact ordered. There would therefore seem to be no merit in the appeal. I am satisfied that it is not in the interests of justice for the appeal to continue. I order that the appeal be struck out.
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