Maybir v Smith[2007] QDC 193

[2007] QDC 193

DISTRICT COURT

CIVIL JURISDICTION

JUDGE DEARDEN

No 38 of 2005

BEENLEIGH

DATE 28/05/2007

ORDER

HIS HONOUR:  This is an appeal against a conviction by the appellant in respect of one charge of driving at an excess speed in breach of section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1999. The allegation is that on 8 July, 2004 at Brighton in the State of Queensland the appellant was the driver of a motor vehicle detected by police exceeding the speed limit, travelling at 107 kilometers per hour in a 90 kilometer per hour speed zone.

The appellant was dealt with ex parte at the Sandgate Magistrates Court on 21 February, 2005. The Magistrate was entitled to do so pursuant to section 142A of the Justices Act. The learned Magistrate considered a letter from the appellant dated 16 February, 2005 and attached medical certificates relating to dates in December, 2004. The learned Magistrate noted on the Court file, "Certificates and reason for fail to appear considered by me. I have considered them inadequate."  In the appellant's absence, and relying as the Magistrate was entitled to do on the provisions of 142A of the Justices Act, in particular in being able to rely on the particulars set out in the complaint and summons, the Magistrate found him guilty, was fined $150 and ordered to pay $65.60 costs of Court in default three days' imprisonment.

Subsequently, the Court record reveals that an application was made for reopening, and on the 17th of March, 2005 the Magistrate dealt with this application for reopening, noting on the Court file, "Read the letter of 7/3/05 Rec'd courthouse on 8/3/05. Appl'n for rehearing is refused."  In short, the record reveals that the Magistrate considered an application for reopening to which was attached a number of medical certificates and was not satisfied that that application should be granted, given the relevant provisions of section 142A of the Justices Act.

The learned Magistrate was of course entitled to deal with the offence ex parte pursuant to the provisions of section 142A of the Justices Act. There is nothing in the Court file to indicate that the learned Magistrate did not proceed according to law pursuant to the provisions of that section. The appellant was advised of the Court's decision of 21 February, 2005 and within the relevant time frame sought to have the proceedings reopened pursuant to section 142A of the Justices Act. That application, as I have noted, was refused. There is nothing on the record which in my view indicates that the learned Magistrate erred in refusing that application.

In particular I note that the medical certificates attached to the application for reopening indicate under the heading,

"Fitness for Work/Study" that "in my opinion [i.e. the opinion of the medical practitioner] this person is/has been unfit for work/study from 20/2/05 to 20/4/05 inclusive."  The medical practitioner providing the certificate went on to state, "Should refrain from driving duties. Supervising work only."  And having indicated that the diagnosis was, "Severe contact dermatitis both hands" with symptoms being "Painful cracked hands. Bleeding from cracks."  Prescribed "Topical steroids and occlusive dressings" as the relevant treatment regime."

There is nothing to indicate on that medical certificate any unfitness to attend Court on the 21st of February, 2005 when the Magistrate dealt with this matter ex parte and the notation "supervising work only" in contradiction from the note that the appellant "should refrain from driving duties" would on the face of it indicate an ability in the view of the medical practitioner for the appellant to have attended Court.

The provisions of Justice Act 142A, which were usefully considered, with his usual meticulous attention to detail, by McGill DCJ in Guy v. McLoughlin and another [2006] QDC 17 were considered by McGill DCJ when he pointed out at paragraph 11

"If the application for rehearing is refused there can be an appeal against that decision under S222 [of the Justices Act]".

Making allowance for the fact that the appellant is self represented and examining the whole of the record which has been placed before the Court, to which I am restricted in considering this application (see Guy v. McLoughlin and another [2006] QDC 17 at paragraph 5) it follows in my view that the learned Magistrate has made no error of law in proceeding as she did to refuse the application for rehearing. I also form the conclusion, again upon reviewing the record, that the Magistrate was entitled as she did to find the defendant guilty of the charge with which he was charged by complaint and summons, and to order a fine and costs of Court in the amount which have been noted in these reasons.

Proceeding, as I said, on the basis that the appellant is self represented, and treating this appeal as an appeal against the decision to refuse the reopening application, I see no basis in which the Magistrate has erred in law and therefore I refuse the appeal. Were it necessary to consider the substantive merits of an appeal by this appellant in respect of the learned Magistrates decision to find the defendant guilty in his absence, I see no basis on which the learned Magistrate has erred in law in respect of that decision, and I would similarly refuse the appeal in respect of the substantive issue.

Accordingly I consider that the learned Magistrate was entitled to find the appellant guilty of speeding as charged pursuant to the complainant summons sworn 4 November, 2004. This appeal is dismissed.

...

HIS HONOUR:  I order that the appellant pay the costs of the respondent fixed at the sum of $900.