DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   This is an appeal pursuant to s 222 of the Justices Act 1886 (“The Act”) against the decision of the learned Acting Magistrate at Caboolture on 27 August 2007 whereby Amanda Mary Wilshire (the appellant) was convicted in the Caboolture Magistrates Court on pleas of guilty of the following offences:

• Dangerous Operation of a Motor Vehicle on 1 August 2007 pursuant to s 328A Criminal Code;
• Failure to comply with duty after accident pursuant to Regulation 287(2)(c) Transport Operations (Road Use Management – Road Rules) Regulation 1999.

2. [2]
   The Magistrate sentenced the appellant to 70 hours community service; disqualified her from holding or obtaining a driver’s licence for a minimum period of 6 months; ordered her to pay $300.00 restitution with 6 months to pay in default 4 days imprisonment and recorded a conviction against her.

Grounds of Appeal:

3. [3]
   The primary ground of appeal is that the Magistrate “erred in recording a conviction”^[1] in that he:

• “
• Failed to give weight or any proper weight to matters under s 12 of the Penalties and Sentences Act 1992 (“P & S Act”); and
• Erred in not hearing submissions on the issue of a conviction being recorded, alternatively erred in not giving notice of his intention to record a conviction.”^[2]

4. [4]
   Before the substantive appeal can be decided there are two preliminary applications to be determined namely:-^[3]

1. (1)
   An application for an extension of time within which to file the Notice of Appeal; and

2. (2)
   An application to lead fresh evidence by the appellant.

Background:

5. [5]
   The circumstances of the appellant appearing before the Magistrates Court on 27 August 2007 were:-

6. [6]
   At the time of her appearance before the Court she had no prior criminal history, but some minor traffic history; had the custody of her two children and was in receipt of a sole parent’s benefit of approximately $400 per week. She also held a licence under the Security Providers Act 1993.

7. [7]
   She was represented at the hearing by the duty lawyer in attendance.

Application for extension of time to appeal:

8. [8]
   Under s 222(1) of the Act the appellant had one month after the date of the order to appeal the decision, that is until 27 September 2007. The Notice of Appeal filed 19 December 2008 is therefore 15 months out of time and the appellant requires this court to exercise its discretion pursuant to s 224(1)(a) of the Act to extend the time within which she may file her Notice of Appeal.

9. [9]
   The principles governing the approach the Court should take in extending the time within which a Notice of Appeal may be filed have been considered in a number of authorities both reported and unreported.^[4]  Primarily:

“…the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.”^[5]

10. [10]
    The appellant concedes that, “the delay was quite long” but submits that “a number of factors are relevant” to be considered in the exercise of the court’s discretion namely:^[6]

“

11. [11]
    The appellant’s primary motivation in seeking to appeal the Magistrate’s decision in respect of his recording a conviction against her is that at the time of her conviction (August 2007) she was licensed under the Security Providers Act 1993 and had renewed her licence in March 2008 for a 3-year period.  On 18 August 2008 the applicant, “…was issued a notice to show cause why the licence should be renewed” because of her being the subject of a conviction being recorded against her on 27 August 2007. As a result of the “Show Cause Notice” being issued she was not able to continue in her then employment as a security officer.^[7]

12. [12]
    In her affidavit the appellant confirms:

1. (1)
   That she did not inform the duty lawyer who represented her at the hearing that she was licensed under the Security Providers Act 1993 and

2. (2)
   She did not canvass with her lawyer the question of whether the recording of a conviction would have an impact upon her:

“

1. (i)
   Economic or social wellbeing;

2. (ii)
   Chances of finding employment.”^[8]

13. [13]
    It is further submitted on her behalf that, the appeal is “a viable one” for a number of reasons set out later herein and that it would be appropriate for the Court to exercise its discretion favourably to the appellant in her application to extend the time within which to appeal.

Application to lead fresh evidence

14. [14]
    The appellant also seeks leave to adduce fresh evidence pursuant to s 223(2) of the Act, namely affidavits from her solicitor and herself, “explaining the cause for the delay and giving evidence of the impact the recording of a conviction has had” (on her employment prospects).^[9]

15. [15]
    The appellant further submits that “The special grounds relied upon for leave are:^[10]

16. [16]
    The further evidence proposed to be adduced reveals that under s 11(5) of the Security Providers Act 1993 “a person is not an appropriate person to hold a licence if the person, within 10 years of applying for a licence, has been convicted of a disqualifying offence.”^[11]

17. [17]
    The offence of which the appellant was convicted is a “disqualifying offence” and the fact that the appellant was convicted of such an offence caused her application for a licence under the Act to be refused. However, one of the factors for consideration by the Chief Executive “in deciding if a person is an appropriate person to hold a licence” is:

“(e) an unrecorded finding of guilt has been made against the person in relation to a relevant offence and has not been quashed or set aside by a court.”^[12]

In other words a discretion resides in the Chief Executive not to refuse an application for a licence under the Act if there is “an unrecorded finding of guilt” against such an applicant.

18. [18]
    In the current circumstances the appellant did not have the benefit of this consideration by the Chief Executive because of the conviction being recorded against her on the 27 August 2007.

19. [19]
    Ultimately the appellant submits that both preliminary applications should be granted so that the substantive grounds of appeal may be fully considered.

Respondent’s submissions upon delay

20. [20]
    The respondent primarily submits that “it is not in the interests of justice to grant the extension of time” (in which to appeal) for a number of reasons including:^[13]

“

Respondent’s submissions on admission of new evidence

21. [21]
    The respondent does not object to the evidence being led that the appellant held a Security Providers Licence at the time of the sentence but, “objects to the assertion that the recording of a conviction is the determinative reason the appellant lost her employment”.^[14]

Findings on application for extension of time within which to lodge appeal and for the admission of fresh evidence:

22. [22]
    On a consideration of the material filed and the submissions made I am satisfied that it is appropriate in this instance to extend the time within which the appellant may file her Notice of Appeal to the date of her filing same namely 19 December 2008 for the following reasons:

1. (a)
   I am satisfied that the appellant has shown “good reason” for her delay in not filing her Notice of Appeal in time namely that at the time of her conviction she failed to appreciate that the question of whether or not to record a conviction against her was and still is a crucial and relevant issue to be addressed by the Court in circumstances which fall squarely within the provisions of s 12(2) of the P & S Act;

2. (b)
   There were no submissions made on her behalf in respect of whether or not a conviction should be recorded;

3. (c)
   The question of whether the appellant’s Security Providers Licence would be at risk was not considered until the appellant received a “show cause” notice approximately 12 months later;

4. (d)
   There is no prejudice to the respondent in granting the extension of time;

5. (e)
   The appellant’s prospects on appeal in all the circumstances are favourable to her.

23. [23]
    I therefore order that the appellant’s time for filing her Notice of Appeal be extended until 19 December 2008.

24. [24]
    With respect to the application to lead fresh evidence, on the material filed and submissions made I am again satisfied that it is an appropriate case for the exercise of the Court’s discretion to allow the new evidence proposed, to be adduced the “special grounds for giving leave” being:

1. (a)
   that the question of whether or not the recording of a conviction would have “impacted” upon the appellant’s “economic or social well-being” should have been canvassed with her prior to the hearing and if necessary an adjournment obtained to investigate her instructions on this important factor in the sentencing process;

2. (b)
   The “fresh” evidence proposed to be adduced is directly on point as to the “impact” upon the appellant’s employment which is a most relevant matter to be placed before the Court for its consideration in deciding whether or not to record a conviction against her in the light of all other circumstances relevant to the commission of the offences.

25. [25]
    I therefore allow the “fresh” evidence to be adduced namely the Appellant’s affidavit filed 19 December 2008 and the two affidavits of Michael Anthony Mason, Solicitor, filed and read by leave at the hearing of the application.

The substantive appeal

26. [26]
    With respect to the substantive appeal the general principles upon which an appellate court must operate in appeals of nature are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the appeal court although ultimately making up its own mind on the matter has due regard to such advantages that the Court or Tribunal at first instance had because of the opportunity to see the witnesses and to have the full consideration of all of the relevant evidence as presented by the original hearing.^[15]

27. [27]
    In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence before the appellate court the order that is the subject of appeal is the result of some legal, factual or discretionary error.^[16]

28. [28]
    All of these principles flow from the long established authority of House v The King^[17] referred to in the following remarks of Gleeson CJ, Gaudron & Hayne JJ in Coal & Allied Operators Pty Limited v Australian Industrial Relations Commission & Others:^[18]

“Because a decision maker charged with the making of a discretion decision has some latitude as to the decision to be made the correctness of the decision can only be challenged by showing error in the decision making process.^[19] And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate Tribunal.  The errors that might be made in the decision making process were identified in relation to judicial discretion in House v The King in these terms:

“If the Judge acts upon a wrong principle if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration then his termination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”^[20] ”

Appellant’s submissions on substantive appeal

29. [29]
    The appellant essentially submits that the Magistrate did not consider and in a respect of which he was not addressed, the effect the recording of a conviction would have on the appellant’s employment position which is incumbent upon a court within the terms of s 12(2) of the P & S Act. 

30. [30]
    The appellant further submits that if the Magistrate had regard to this provision he ought to have exercised his discretion not to record a conviction as although the offences of which the appellant was convicted were serious they were dealt with summarily and other more serious offences have not resulted in convictions being recorded against offenders.^[21]

31. [31]
    Ultimately the appellant submits that in all the circumstances the appeal should be allowed and the sentence varied to rescind the recording of a conviction against the appellant.

Respondent’s submissions on substantive appeal

32. [32]
    The respondent fairly concedes that the Magistrate did not hear submissions on the recording of a conviction, “and as a consequence there was a denial of natural justice.”^[22]

33. [33]
    However, the respondent further submits that on a reading of s 11 of the Security Providers Act 1993 there is only a “discretion” in the “Chief Executive” to consider whether “an unrecorded finding of guilt” against a licence holder allows such a person to continue to hold a security licence or have such a licence renewed.  In addition, there are other employment options open to the appellant and when one considers all the circumstances of the incident relevant to s 12(2) of the P & S Act including the nature of the offence and its particulars it would be in the public interest that a conviction be recorded against the appellant and the sentence imposed was therefore not excessive.  As a result the respondent submits that the appeal ought to be dismissed.

Findings on substantive appeal

34. [34]
    On the basis of the submissions made and the material filed I am satisfied that the Magistrate erred in failing to hear submissions on whether or not a conviction should have been recorded against the appellant and as a result the sentence imposed by the Magistrate must be set aside and this court is obliged to exercise the sentencing discretion afresh. In reaching this conclusion, I refer to the dictum of Fraser JA in R v Kitson with whom Fryberg and Lyons JJ agreed  when  his Honour said at [22] and [23] thereof:

“[22]  In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:

"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."

[23]  The rule applies to sentencing of course, as has been confirmed by decisions of this Court in cases such as R v Cunningham [2005] QCA 321 at [5] and R v McDougall & Collas [2006] QCA 365 at [19].” ”

35. [35]
    On a consideration of the circumstances of the offences as set out in paragraph [5] hereof and the matters contained in s 12(2) of the P & S Act I am satisfied that it is appropriate not to record a conviction against the appellant for the offences for which she was convicted and that to do so was manifestly excessive.

36. [36]
    My reasons for this conclusion are that:

Orders

37. [37]
    My orders therefore are as follows:

1. The appeal is allowed;

2. The sentence of the Magistrate imposed against the appellant on 27 August 2007 is varied to the extent that the order that a conviction be recorded against the appellant is set aside;

3. No conviction be recorded against the Appellant for either offence.