DISTRICT COURT OF QUEENSLAND

1. [1]
   These are two appeals under section222 from decisions of the Magistrates Court in Maroochydore and Charleville which were heard together. In each the notice of appeal was filed out of time, but time was extended by another judge on 26 July 2005.

Maroochydore matter

2. [2]
   The two charges dealt with in the Maroochydore court were that on 13 January 2005 at Maroochydore the appellant committed a public nuisance offence, and that on that day at that place the appellant obstructed a police officer in the performance of the officer’s duties. The appellant was arrested in relation to those offences on that day, but released on bail, presumably watch house bail, on that day, on an undertaking to appear in court on 27 January 2005. On that day according to the endorsement on the file the defendant did not appear but was represented and the matter was adjourned to 17 February 2005 and bail was enlarged. Both matters were then mentioned again on 17 February 2005 and on this occasion the appellant was present. Again both matters were adjourned for mention to 17 March 2005 and bail was enlarged. On 17 March 2005 the appellant was not present, and the magistrate proceeded under section 142A. The magistrate found that all the provisions of that section were complied with, the appellant was convicted of both offences and one penalty was imposed for both offences, a fine of $600, in default 10 days imprisonment. It is that conviction from which the appellant appeals.

3. [3]
   The prosecution version in relation to those offences was summarised in submissions on behalf of the respondent. Presumably this was the version which was put before the court; unfortunately the proceedings were not recorded and no transcript is available. On this version, police attended a shopping centre at Maroochydore where the appellant was present and was refusing to leave the centre, notwithstanding that he had previously been banned from attending the centre and had been asked to leave. He was arguing with store security personnel in a loud voice disturbing other shoppers. Police asked him to desist in his behaviour and warned him if he continued to behave in such a manner he would be charged with being a public nuisance. He continued to argue with store security, and began an argument with police and persisted in behaving in a disorderly manner. That was alleged to constitute the public nuisance offence. He also interfered in discussions between the police officers and the store security personnel and other witnesses. That was alleged to constitute the obstruction. The appellant was arrested and charged.

4. [4]
   The appellant agreed that the shopping centre had banned him from attending the premises, but he claimed that the ban was invalid and illegal. He said that he had been attending the shopping centre for about 10 years, and was well known to a number of people there, and usually went there in order to do his shopping at Coles. On this occasion he had gone there to shop at Coles, and had collected his groceries and was about to pay for them and leave with them when a security officer came up to him and asked him if he was going. He said he was, as soon as he had paid for his groceries, whereupon the security officer got in touch with the police. When the police arrived he explained that he was just wanting to pay for his groceries and collect them and take them away and he would leave. He was not using a loud voice, but he was attempting to explain his position to the police. Presumably he was not prepared to leave without his groceries, which is understandable. He disputed that he was behaving in a way which amounted to a public nuisance, or that he had obstructed police. He complained that the police were in effect acting as part of the security service of the shopping centre, and were doing their bidding.

5. [5]
   None of this of course was before the magistrate, because the matter proceeded under section 142A of the Justices Act. There was no trial, and therefore there was no evidence of any of these matters before the magistrate, nor were any findings made. That is the difficulty that the appellant faces for the purposes of this appeal.

6. [6]
   Section 142A of the Justices Act 1886 provides in effect that where (as here) there is a complaint of a simple offence or breach of duty made by a police officer and the defendant is required to appear at a time and place fixed for the hearing of the complaint under a condition of the defendant’s bail, or by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint, and the defendant does not appear at the time and place fixed for the hearing of the complaint, the court before which complaint comes for hearing whether on the return date or an adjourned date may, if it is satisfied that the facts alleged in the complaint constitute such a simple offence or breach of duty and that reasonably sufficient particulars were set out in or annexed to or served with the complaint and the summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually as if the facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared. That is to say, the magistrate can deal with the complaint without evidence and without the presence of the defendant.

7. [7]
   By subsection (5) the court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant in relation to the circumstances of the matter and the imposition of penalty. There is in subsection (6) a restriction on the imposition of certain penalties without further notice to the defendant, but that was not applicable. By subsection (10) the clerk of the court is required to send by post to the defendant’s last known address an advice of the conviction forthwith upon the determination of the matter.

8. [8]
   By subsection (12):

“Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 28 days after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit.”

9. [9]
   Subsection (15) declares that the section that applies if a person fails to appear before a court after the person is granted bail or permitted to go at large without bail under the Bail Act of 1980. This last provision makes it clear that the section applied in the present case, even though 17 March was a date fixed as a mention date rather than a hearing date.

10. [10]
    Accordingly what I am concerned with is an appeal against an exercise of jurisdiction under section 142A. Such an appeal does not entitle the appellant to raise any matter not raised before the magistrate, or which ought not to have been apparent to the magistrate at the time of the hearing. That does not mean that there is no effective right of appeal, but obviously an appeal in these circumstances can only be on a very limited basis. It would be possible, for example, to appeal on the ground that the complaint did not disclose an offence known to law, or that the requirements of the section had not been complied with, or that, on the basis of the material before the magistrate, the penalty was in any event excessive, or perhaps that a penalty had been imposed which was not authorised by law for the particular offence. But none of the matters sought to be argued by the appellant, which were directed to the question of whether he had committed the two offences at all, can be ventilated on appeal in these circumstances.

11. [11]
    A person who is convicted on an offence under section 142A and who wishes to challenge the merits of that conviction is required to follow the statutory procedure in subsection (12), and apply for a rehearing. If a rehearing is granted, there will be an ordinary summary trial with evidence and findings of fact can be made and a decision reached by the magistrate, which can then be subject to appeal under section 222. If the application for rehearing is refused, there can be an appeal against that decision under section 222. In my opinion in the absence of an application under subsection (12) for a rehearing, it is not open by an appeal under section 222 against a conviction pursuant to section 142A to raise issues which were not raised before the magistrate as to whether the appellant was really guilty of the offences charged. That follows from the structure of section 142A, and is in any event consistent with the general rule in relation to appeals that factual issues cannot be raised for the first time on appeal.^[1]

12. [12]
    The appellant complained that he was suffering particular difficulty because of some psychiatric problems, having suffered a traumatic brain injury involving frontal lobe damage in a motor vehicle accident when he was seven year of age. He said that he had been a mental health care consumer for many years, and that he had frequently sought the assistance of various mental health units in different places in Queensland, often without a satisfactory response. He told me, in some detail, of the difficulties he has faced in trying to get some mental health units to provide him with the sort of care he believed he required at different times in his life.

13. [13]
    There is no reason to doubt that he has psychiatric problems. One manifestation of this was that he had difficulty in presenting a coherent argument which was focused on relevant considerations, and at times while making submissions he appeared to become quite emotional. I am of course not in a position to make any expert assessment of him, and no expert evidence was put before me, but on the basis of his difficulty in court in being able to identify and focus on relevant issues, he could well have difficulty in coping with the requirements of section 142A. It also appears to follow from what he told me that he had left the address at which he had been living prior to 17 March 2005, so presumably any notice given by the clerk of the court pursuant to subsection (10) was never received by him. That may have meant that he had no warning that the matter had been dealt with under this provision and that it was necessary for him to apply for a rehearing within a limited time if he wanted to challenge the merits of the charges. Unsurprisingly therefore he never applied for a rehearing.

14. [14]
    Subsection (12) is quite limited; there is a relatively short period of 28 days within which an application for a rehearing can be made, and so far as I can see no power in anyone to extend that period, for whatever reason. Further, it runs from the date of determination of the complaint by the court, not the date upon which notice of it is actually received by the defendant^[2]. Accordingly the time for applying for a rehearing could easily expire before the need to apply even came to the attention of a defendant. Because of the absence of any provision for an extension of the 28 day period, the subsection appears to me to have a capacity to work an injustice in particular cases, perhaps unusual cases but obviously cases which will be met with from time to time. Nevertheless, this is a matter for parliament; there is nothing I can do about it.

15. [15]
    In circumstances where the appellant has not applied for a rehearing under section 142A(12) within the specified period, it is not at all clear to me that there is any basis upon which the appellant can ventilate the matters that he wishes to raise as to the merits of these charges. I am satisfied that they are not matters which if established would provide any basis for allowing an appeal against the decision of the magistrate pursuant to section 222 of the Justices Act and the related provisions. It follows that the appeal in respect of the Maroochydore matters must be dismissed.

Charleville matters

16. [16]
    The appellant was before the Magistrates Court in Charleville on 11 April 2005 facing three charges, one count under the Commonwealth Crimes Act of using a carriage service^[3] to menace or harass, one count of obstructing a police officer in the performance of the officer’s duties, and one count of wilful damage. The appellant on that occasion was represented by a solicitor acting as duty lawyer, who appeared (the appellant was also physically present of course) and entered a plea of guilty on his behalf. The appellant did not dispute that he pleaded guilty to these three charges. The magistrate convicted the appellant on the basis of his plea of guilty and ordered that he be released on entering into a bond under section 19 of the Penalties and Sentences Act, in the sum of $700, to be of good behaviour for a period of three years. No conviction was recorded. The bond was to contain a further condition that the appellant not return to Queensland during that period of three years. The appellant executed the bond and was released later that day.

17. [17]
    In his original notice of appeal in relation to this matter the appellant complained specifically about the condition of the bond that he stay out of Queensland, arguing that it was not validly imposed. The respondent has conceded that point, and accordingly it is strictly unnecessary for me to determine it. A magistrate has clearly no power to impose such a condition as part of a bond under section 19 of that Act. Accordingly the appeal must be allowed to that extent.

18. [18]
    The appellant on the hearing of the appeal sought to go behind the plea of guilty and to dispute that he was in fact guilty of any of the charges. It is unnecessary for present purposes to go into the details of the facts of the various charges, and the appellant’s version in relation to them. The difficulty for the appellant is that he did plead guilty. He claims that this was under duress, and that he had been told by both police and corrective services officers during a period when he was in custody on remand that he would be in trouble if he did not plead guilty. He described in some detail the mistreatment which he said he suffered at the hands of corrective services officers whilst he was in prison on remand. He claimed that the effect of this was that he pleaded guilty under duress, and not of his own volition.

19. [19]
    The difficulty for him is that section 222(2)(c) of the Justices Act provides:

“If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

20. [20]
    This is a matter which goes to the jurisdiction of this court under this section.^[4]  Accordingly because the appellant did plead guilty, as he concedes, I have no jurisdiction to investigate on this appeal anything other than the question of whether the fine, penalty, forfeiture or punishment was excessive or inadequate. Indeed it appears that even if I thought that the complaint did not disclose an offence known to law I could not do anything about the conviction of the appellant. It may be that he has some other remedy, but all I am concerned about is whether he can challenge the validity or appropriateness of his conviction or seek to reopen it by way of an appeal under section 222 of the Justices Act. In my opinion it is clear that he cannot.

21. [21]
    The appellant complained that, apart from the special condition of the bond, the punishment was excessive because of the period he spent on remand. He claimed that, in circumstances where he had not been convicted of any offence, for him to have been held in an ordinary prison was excessive, particularly in the light of his mental health considerations. But even this is not a matter which I can legitimately consider on this appeal, because his imprisonment on remand was not part of the penalty or punishment imposed by the magistrate against whose order the appeal is brought. It is not something I could do anything about, any more than the magistrate could have done anything about it at the time when the appellant appeared before him in Charleville. There was no complaint specifically as to the penalty imposed by the magistrate otherwise.

22. [22]
    Accordingly the appeal is allowed only to the extent of setting aside the condition of the bond requiring the appellant to stay out of Queensland during the operational period of the bond. I also declare that that condition is not and has never been validly part of the bond executed by the appellant. The appeal must otherwise be dismissed.