DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant was charged as a second-hand dealer under the provisions of the Second-hand Dealers and Pawnbrokers Act 2003 (the Act).  He was involved in a business Captain Cash (Qld) Pty Ltd trading as Captain Cash Palm Beach.  An audit was carried out of this business.  It was alleged at the hearing after reference to the company that “(i)t’s a second hand dealer’s licence and a pawnbroker’s licence^[1] and  the licensee is now before the court”.  The appellant, who was not legally represented, pleaded guilty to the following charges on 24 May 2006:

Count 1:   Failure to identify a place as a second-hand dealership;

Count 2:  Making a false or misleading entry in a transactions register as a pawnbroker;^[2]

Count 3: Failing to keep a register of transactions as a pawnbroker;

Counts 4, 5, 6 and 7:  Making a false or misleading entry in a property register.^[3]

2. [2]
   The appellant was fined $10,000.00. He applied to a magistrate to set aside the convictions pursuant to s 147A of the Justices Act 1886.  Relevantly, it provides as follows:

147A Power of justices to reopen proceedings and rectify orders

3. (1)
   This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188.

3. (2)
   Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties the opportunity of being heard, set aside the conviction or vacate or vary the order in either case to confirm with the facts.

3. (3)
   The powers conferred by section (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that –

1. (a)
   the conviction or order has been recorded or made against the wrong person;

2. (b)
   …

3. [3]
   On 18 January 2007, an application was heard to reopen the proceedings in relation to all charges. An order was made by the magistrate at Southport, that the convictions for counts one and three be set aside and the charges be listed for further mention.  The convictions were set aside as the company Captain Cash (Qld) Pty Ltd was the licensed second-hand dealer and pawnbroker for the Palm Beach Store, not the defendant.  The defendant was an employee of the store.^[4]  An order to reopen was refused in relation to the remaining five charges.  Counts 1 and 3 named the appellant as the dealer or pawnbroker for the purposes of the Act.  Counts 2, 4, 5, 6 and 7 named the appellant as the person liable for making a false entry.  In fact, other than for count 5, other persons were named as responsible for making the false entries.  Counts 2, 4, 5, 6 and 7 are similar except count 2 refers to the transactions register and counts 4, 5, 6 and 7 refer to the property register and read:

Charge 2 of 7

That on the 20^th day of April 2006 at Palm Beach in the Magistrates Courts Districts Gold Coast in the State of Queensland one Peter John Hughes made a false entry in a transaction register as required to be kept under section 37 of the Second-hand Dealers and Pawnbrokers Act 2003 for the second-hand business located at 1152 Gold Coast Highway Palm Beach.

4. [4]
   This appeal relates to counts 2, 4, 5, 6 and 7. The appellant pleaded guilty to the charges because he believed that his role in the business made him liable for the offences. Subsequently, after taking legal advice, he was told he was not liable. The learned Magistrate on the application to reopen distinguished between liability as the licensee and making incorrect entries in recording items in the register.

Evidence on original sentence

5. [5]
   The appellant was held vicariously liable for any incorrect entries on the part of employees. It was assumed that the appellant was the licensee and the employer of the persons or person who made the entries. This it is said was a false premise. In fact the prosecutor told the magistrate initially that the entries made by an employee Birch were mistakes. This raised a defence of mistake of fact based on some “dyslectic” type errors. It was not asserted before the sentencing magistrate that the appellant made the entries personally on any of these charges. The mistake of fact may be open as a defence to those persons who made the entries. The learned magistrate stated that “…as at Friday you were vicariously liable for any defects that may have been caused by your employee …. and you being a subscriber, have responsibility for that and for any fault of any employee.”^[5]  There was no evidence that the appellant employed anyone.  He did tell the magistrate that he had “run these stores for 11 years”.^[6]  The manager appeared to be John Christian Birch.^[7]  He admitted to the careless entry in count 2.^[8]

Hearing to reopen proceedings

6. [6]
   It is submitted that s 147A should have allowed the magistrate to not only set aside counts 1 and 3, but also the other counts. It is submitted that there were two bases for that, either the appellant was not the licensee or because he did not make the false entries. The learned magistrate proceeded on the basis that the appellant was vicariously liable for the employees who had made the false entries. That concept is well understood in the civil jurisdiction and in the criminal sphere where a company acts through its employees. The licensee/company was not charged in the present case.

S 222(2)(c) of the Justices Act 1886

7. [7]
   At the outset of the hearing, the attention of counsel was drawn to the provisions of s 222(2)(c) of the Act. Counsel had considered the issue before the hearing commenced but its effect was not discussed in the written outlines. A defendant may appeal against an order of a magistrate who had made an order in a summary way on a complaint.^[9]  One of the exceptions to that right of appeal is to be found in s 222(2)(c) of the Justices Act which states:^[10]

3. (c)
   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.

8. [8]
   The appellant pleaded guilty to the subject counts. This appeal is against the refusal of a magistrate to reopen a hearing under the provisions of s 147A. It specifically allows the magistrates court to reopen a hearing if the wrong person is convicted and allows the convictions to be set aside. It is against that decision that this appeal is made.

Issue on appeal

9. [9]
   The issue on this appeal as reformulated at the hearing relates to jurisdiction. The question is whether an appeal under the provisions of s 222(1) can be made against an order refusing to set aside a conviction notwithstanding s 222(2)(c) where:

1. (a)
   an aggrieved person pleads guilty or admits the truth of a complaint before a magistrate and

2. (b)
   a magistrate refuses to set aside the conviction pursuant to s 147A(2) of the Act.

History of the relevant sections

10. [10]
    It is of some interest to look at the discussion of s 147A in R v Tommekand.^[11]  The appellant pleaded guilty to stealing a boat and trailer.  After he was sentenced, he brought an application for an order to reopen the proceedings and set aside the conviction.  An allegation was made that the earlier order was made upon an error of fact.  The application was denied.  The court commented that “a plea of guilty is taken to involve an admission of all of the elements of the offence to which the pleas is entered.”^[12]  The court also referred to the limitations on the use of the section and stated after citing R v Williams, ex parte Biggs^[13] and Boyd v Sandercock, ex parte Sandercock:^[14]

… it is clear that the section does not authorise a re-opening to enable a conviction or penalty to be reconsidered on the basis of additional evidence going to the merits which was not presented during the original hearing.  The former case makes it clear that the purposes of the section, a principal consideration is what facts were asserted or accepted below.

11. [11]
    Section 209 of the Justices Act, before it was repealed, allowed an appellant to apply to the Supreme Court to set aside a  plea of guilty based upon a writ of certiorari.   An example of this is The Queen v Noone, ex parte Minister for Justice and Attorney General.^[15]  In that case, the defendant’s plea was ambiguous as he gave an explanation for his resisting arrest which raised the lawfulness of his actions.  The convictions were quashed by way of certiorari.  The passing of the Judicial Review Act 1991 supplanted that procedure.^[16]  Long v Spivey was a case where a District Court set aside convictions imposed by a magistrate.  The Court of Appeal found that the defendant had pleaded guilty before the magistrate.  Reference was made^[17] to the principle in Meissner v The Queen^[18] viz. that a plea of guilty will not ordinarily be set aside unless “the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence”.  The court in Long v Spivey was not directly dealing with the question of a miscarriage of justice based upon the Meissner principle.  The appeal to the District Court was found to be incompetent by virtue of s 222(2)(c).^[19]  The defendant was found to have pleaded guilty in the relevant sense.  In referring to that latter section, Davies JA stated that:^[20] 

[23] In order to have a right of appeal pursuant to s 222, the respondent was required to prove either that his appeal in respect of the charge of assaulting a police officer was only on the ground that the punishment was excessive; or that he had not pleaded guilty or admitted to the truth of the complaint.

[24]…

[25] A right of appeal, and any restrictions to it, are statutory.  There is no common law right of appeal.  Moreover such a right cannot be conferred by implication.  It must be conferred in clear words by a statutory provision.

[26] The relevant history of the Justices Act is as follows.  Until 1949 it provided three means of appeal or review; an order to show cause under s 209, a case stated under s 226 and an appeal to a District Court under s 237.  In none of these was there any prohibition against relief where the appellant or applicant had pleaded guilty.

[27] Then by the Justices Act Amendment Act of 1949 a new Part 9 was substituted for the previous Part 9 which had contained the above provisions.  The new Part 9 conferred a right to an order to review under s 209 and an appeal to a judge of the Supreme Court under s 222.  Section 209 did not contain the limitation contained, at the relevant time, in s 222(2)(e).  However the powers of the Full Court on review under that provision were limited.  Section 222 in the form in which it was then, contained a provision in term is identical to those in s 222(2)(e).  That limitation has remained in s 222 ever since.

[28] Section 209 was repealed by s 61 of the Courts Reform Amendment Act 1997.  The repeal of s 209 left, as the only possible avenues of appeal or review from a conviction for a summary offence in the Magistrates Court, appeal under s 222 and, possibly, a certiorari order under Part 5 of the Judicial Review Act 1991.  However it is unnecessary to consider the latter because no such relief was sought here.  And unless s 222 is given some meaning other than its plain meaning, the argument of the respondent is correct, the application must succeed, the appeal must be allowed and the judgment of the learned District Court judge must be set aside.

12. [12]
    Williams JA stated that “the critical question in this case is whether or not a plea of guilty was entered to the charges. The answer to that question determines the issue of jurisdiction raised by s 222(2)(e)^[21] of the Justices Act 1886.”^[22]  His Honour went on to distinguish that case from one where the defendant seeks to set aside a plea based upon a miscarriage of justice.  The Court of Appeal found that he had pleaded guilty to both the disorderly behaviour and assaulting a police officer.  In effect, the Court was not concerned with whether a miscarriage occurred but whether there was a plea of guilty at all to the assault charge.  Neither of the grounds required under s 222(2)(c) and referred to above^[23] had been established.  Any claim for relief was limited to Part 5 of the Judicial Review Act 1991.^[24]  No such relief was sought in that case.  The District Court does not have jurisdiction under that latter Act.

13. [13]
    A practical application of the reasoning in Long v Spivey^[25] can be found in Phillips v Magistrate Robert Spencer and State of Queensland.^[26]  In the latter case, the applicant had pleaded guilty to an offence under s 162(1) of the Nature Conservation Act 1992 (Qld).  He brought an application before a Supreme Court justice to review the decision of the magistrate on the basis that he pleaded guilty on legal advice which was incorrect.  The judge hearing the case has suggested that the appropriate course would have been to seek to have the plea vacated before a magistrate.  If a conviction had been entered after a plea of not guilty and in effect a rehearing, the applicant could have appealed to the District Court under s 222 of the Justices Act.^[27]  It was not discussed that if the magistrate refused to reopen the plea of guilty that an appeal to the District Court was still available.  It may be that to do so would have been asking the District Court to set aside a conviction where a plea of guilty had been entered and that s 222(2)(c) did not allow such a course.  It might also explain why a different procedure under s 43 of the Judicial Review Act 1991 was adopted in Rasmussen v J Sutton and Anor^[28] and which will be discussed later in these reasons.

14. [14]
    The application in Phillips case was dismissed under s 48 of the Judicial Review Act.  The Chief Justice commented:

Mention may be made of s 147A of the Justices Act, which empowers a Magistrate to set aside a conviction ‘that is based on or contains an error of fact’.  I would not consider that provision applicable here.  These convictions were based on pleas of guilty regularly entered:  it is accordingly difficult to see how the basis for intervention under s 147A could be established by these circumstances.

15. [15]
    The President made the observation that the application was made under the provisions of Part 5 of the Judicial Review Act and cited Long v Spivey^[29] as the authority for so doing.  The President further observed:

It may be that the primary judge could have dismissed the application under s 12 or s 13 of the Act^[30] because the applicant could have applied to a magistrate to reopen the summary proceedings and set aside the plea of guilty under s 147A Justices Act 1886 (Qld): Bell v Bay-Jespersen.^[31]

16. [16]
    In his dissenting judgment, Jerrard JA accepted the view of Williams JA in Long v Spivey^[32] as to the procedure and stated:

I observe that because of s 222(2)(e) of the Justices Act 1886,^[33] Mr Phillips could not appeal his conviction in the Magistrates Court to a District Court Judge.  It may be, as has been suggested, that Mr Phillips could have applied to the Magistrate for leave to withdraw his plea of guilty, but any such application would run the risk of the Magistrate declaring both that he was functus officio, and (correctly) that the applicant could proceed by way of an application under Part 5 of the Judicial Review Act.  I respectfully disagree with the view that the possibility of an application to a Magistrate for leave to withdraw a plea could be considered a provision, let alone an adequate provision, made by a law and by which Mr Phillips was entitled to have a Magistrate review acceptance and conviction on the plea of guilty.  It follows that neither s 12 nor s 13 of the Judicial Review Act 1991 apply.

17. [17]
    What is required under s 12 of the Judicial Review Act is that before an application can be dismissed it must be shown that:

1. (a)
   the applicant has sought a review of the matter by the court or another court, otherwise than under this Act: or

2. (b)
   adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.

With respect to those who hold otherwise, the relief available under s 147A is somewhat limited.  Relevantly, the wrong person had to be convicted in the present case before the case could be reopened.  In the present case, on at least four of the counts, other persons had been nominated as signing the false entries.  No evidence was available on count 5 but of course the appellant had pleaded guilty.  The magistrate was clearly wrong in finding the appellant guilty vicariously.  If judicial review were not available, a serious miscarriage of justice could occur.  The judicial review process is somewhat broader in its application.  Therefore, it cannot be said that s 147A provides “adequate provision” for relief.  By adopting what may have been available by way of prerogative writ, the court reviewing the decision of a magistrate can look, for example, for errors on the face of the record, an equivocal plea entered or if a miscarriage of justice has occurred, act to correct same.^[34]     

18. [18]
    Jerrard JA went on to find that an error of law had occurred and that an order in the nature of certiorari under s 43 of the Judicial Review Act to quash the conviction was appropriate.  The views of Jerrard JA are consistent with the view that in an appropriate case, relief could be sought under s 147A which has occurred in the present case and successfully so in relation to counts 1 and 3.  Further, the alternative procedure under Part 5 of the Judicial Review Act is available.  It does not follow that an appeal to the District Court against a refusal to set aside a conviction under s 147A is available.  In Rasmussen v Sutton,^[35] there was an application under s 147A to reopen the proceedings against an applicant who had been convicted for driving a motor vehicle whilst his licence was cancelled.  There was some doubt concerning the validity of s 24 of the Regulation which disqualified the applicant.  The applicant applied for judicial review of the refusal of the magistrate to set aside the order disqualifying him absolutely.

19. [19]
    Chesterman J discussed the grounds advance for judicial review of the decision under s 147A. The principal ground related to a breach of natural justice. His Honour discussed cases such as R v Williams, ex parte Biggs^[36] and Boyd v Sandercock, ex parte Sandercock^[37] concerning s 147A and that proceedings cannot be reopened based merely on the merits and that the facts already before the original court are the relevant facts.  The application to review the decision refusing to set aside the conviction was made under s 43 of the Judicial Review Act.  His Honour went on to discuss cases such as Meissner v Queen^[38] and the principles applicable to cases where an accused pleads guilty before a court and then seeks to set aside the conviction.  In Rasmussen’s case there was no application to have the conviction set aside notwithstanding his guilty plea.  In dismissing the application, his Honour found that “it was impossible for the applicant to demonstrate that he was dealt with on the basis of some error of fact when he is precluded from disputing the basic facts essential to his conviction”.^[39]

Conclusions

20. [20]
    When the history of s 222 of the Justices Act is considered, it becomes clear that after the implementation of s 222(2)(c) the legislature sought to limit the grounds of appeal to the District Court.  Once a defendant pleaded guilty there were two courses open.  The defendant could apply to reopen the case under s 147A.  If it was reopened and a conviction followed a not guilty plea, then an appeal was available under s 222 of the Justices Act.  However, if there was a refusal to reopen the conviction following a guilty plea, then the defendant was required to apply for judicial review of that decision under the provisions of Part 5 of the Judicial Review Act.  That Act defined the limited basis upon which the hearing could proceed.  It certainly does not permit a rehearing on the merits.  That was always the position when s 147A was involved.^[40]  Section 222(2)(c) limited the grounds of appeal where a defendant pleaded guilty or otherwise admitted the truth of the allegations.  It certainly excluded a right to appeal on the merits following a conviction based upon a plea of guilty.  If there has been a miscarriage of justice in those circumstances, the principles in Meissner v Queen^[41] would apply.  If there is a breach of natural justice, for example, the provisions of s 43 and s 47 of the Judicial Review Act 1991 may assist.  In the present case, the District Court has no jurisdiction to entertain an appeal from a conviction following a plea of guilty.  In view of the lack of jurisdiction it has been unnecessary to determine whether there has been a miscarriage of justice.^[42]

Orders

1. The appeal is dismissed

2. It is ordered that the appellant do pay the costs of the respondent of the appeal to be assessed on the standard basis.