Meade v Commissioner of Police
[2010] QDC 309
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- Meade v Commissioner of Police[2010] QDC 309
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Meade v Commissioner of Police[2010] QDC 309
Meade v Commissioner of Police[2010] QDC 309
[2010] QDC 309
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE NEWTON
Appeal No 668 of 2008
LUKE SIMON MEADE | Appellant |
and |
|
COMMISSIONER OF POLICE | Respondent |
SOUTHPORT
DATE 02/02/2010
ORDER
HIS HONOUR: The appellant in this matter is charged that on the 13th day of April in 2008 at Bonogin in the Magistrates Courts District of Gold Coast in the State of Queensland he, being the driver of a motor vehicle, namely a Nissan motor car, on a road, namely Bonogin Road, Bonogin, in an incident involving injury to a person, namely Jason Lindsay Thomas, failed to remain at or near the scene of the incident and immediately render such assistance as he can to Jason Lindsay Thomas.
Further, that he showed a callous disregard for the needs of the said Jason Lindsay Thomas. It was averred that the said Nissan motor car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it was averred that the said Bonogin Road is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.
The appellant, who was legally represented in the lower Court, entered a plea of guilty to the charge on 3 December 2008. He was convicted and sentenced to eight months' imprisonment to be suspended after six weeks for an operative period of two years and was disqualified from holding or obtaining a driver's licence for a period of two years.
The facts relied upon by the prosecution as placed before the Magistrate by the Police Prosecutor were not capable of supporting the charge. The Police Prosecutor informed the Magistrate that it was not known and would probably never be known whether Mr Thomas was already deceased at the time he was struck by the vehicle being driven by Mr Meade. It therefore could not be established that the appellant, Mr Meade, was the driver of the motor vehicle as charged in an incident involving injury to Mr Thomas.
Notwithstanding that the material placed before him was insufficient to establish the charge, the Magistrate proceeded to convict Mr Meade and to impose penalty upon him. In fact, in imposing the sentence which was imposed the Magistrate fell into further error because the sentence imposed was not one open to the Court to impose in the circumstances.
Mr Mitchell, who appears on behalf of the respondent at the hearing of this appeal, has very properly conceded the error made by the Magistrate both in proceeding to sentence in the manner in which he did and also, as I understand Mr Mitchell's submissions, in allowing the plea of guilty to stand in circumstances where the material was not capable of supporting the charge.
In fact, the police were in possession of material in the form of medical reports which established or at least suggested that at the time Mr Meade's vehicle struck him Mr Thomas was still alive, but passed away shortly after the collision. Why this material never found its way to the Prosecutor's brief is explained by a statement from a police officer who was in possession of this material, but who thought that it was not relevant because it did not go to any element of the charge. That view was plainly mistaken.
The question now is what is to be done with the matter. Mr Mitchell has at least foreshadowed that should the matter be remitted to the Magistrates Court, an application will be made to adduce the evidence contained in the medical reports that was withheld from the original prosecution brief. Of course, at this stage the representatives for the appellant, Mr Meade, have not had an opportunity of considering this material and deciding whether to challenge it or contradict it.
In the course of submissions I had occasion to refer to the Court of Appeal decision, The Queen v GV [2006] QCA 394. I will not repeat in detail what I read from the judgment of the Court of Appeal during submissions beyond referring to paragraph 40 at page 10 of the report where the Court stated:
"When it became apparent to the Judge that the facts on which he was being asked to sentence the applicant showed that he had, at least arguably, a complete defence to the charge, the Judge should have directed that a plea of not guilty be entered in place of the plea of guilty."
It seems to be agreed by both counsel for the appellant, Mr McNab, and the advocate for the respondent, Mr Mitchell, that, in the circumstances, this Court should order that the matter be remitted to the Magistrates Court to be dealt with by a Magistrate other than the Magistrate who imposed the sentence on the third of December 2008.
I am prepared to accede to that course and leave it to the Magistrate before whom the matter is listed to consider whether the prosecution should be granted leave to adduce additional evidence in the form of the medical material that was available at the time of the sentencing but which was not placed before the Court.
If it be decided by the Magistrate that such material should be admitted then no doubt the matter will be adjourned to enable the legal representatives of Mr Meade to consider the material and to decide what to do about it. I simply point out at this stage that that material is not fresh. It was plainly in the custody or the possession of the police at the time of the hearing in the lower Court.
Furthermore, to permit that material now to be led would obviously be extremely prejudicial to the appellant who has been under threat of having a sentence of imprisonment ordered to be served for some I think 18 months now, slightly less than that. However, the passage of time since the post mortem is such that the ability of Mr Meade's legal representatives to mount a meaningful challenge to that evidence remains to be determined.
In any event, it is clear that the appeal should be allowed and the matter remitted to the Magistrates Court for hearing by a Magistrate other than the Magistrate who imposed the sentence. I so order.
Does that cover things from your point of view, Mr McNab?
MR McNAB: Just a procedural matter, your Honour. I understand the appeal has been upheld, but would your Honour specifically set aside the orders of the Magistrate because it has the ramifications of the disqualification that he's been under and perhaps even the original sentence. I know it's only procedural, but it's more particular for the disqualification period as the matter's going to be determined, one would foresee, afresh in the Magistrates Court.
HIS HONOUR: What do you say, Mr Mitchell?
MR MITCHELL: In all of the circumstances, your Honour, I can't oppose my friend's application.
HIS HONOUR: But as a procedural matter in appeals of this nature, as I understand it, the disqualification order would remain until the matter was determined.
MR MITCHELL: Just one moment, your Honour.
MR McNAB: That's my understanding in relation to the stay of various orders and it's very narrow of orders that are stayed, your Honour. However, my submission is as the appeal has been determined now and your Honour has upheld the appeal------
HIS HONOUR: Well, the appeal has been determined in one sense.
MR McNAB: That's right.
HIS HONOUR: But it has only been determined by remitting it to the Magistrates Court to finalise the prosecution.
MR McNAB: That's correct, your Honour, and my submission in relation to that is that it - when it goes back to the Magistrates Court the appellant could very well enter a plea of not guilty.
HIS HONOUR: A plea of?
MR McNAB: Not guilty or guilty.
HIS HONOUR: Yes.
MR McNAB: And that's the case he's back to the starting point again, your Honour, as if the Magistrate's original order had not been imposed at that juncture so it's my submission, your Honour, your Honour could make------
HIS HONOUR: Well, the other point, of course, is simply this: that the sentence imposed by the Magistrate was not imposed in a lawful manner because the sentence of imprisonment that was imposed could not lawfully have been ordered.
MR McNAB: That's correct, your Honour.
HIS HONOUR: That part of the sentence relating to disqualification was open to the Magistrate, but it seems to me, I think, that if the sentence imposed was not imposed according to law the whole sentence should be set aside.
MR McNAB: That's correct, your Honour, and as your Honour indicated during submissions, it's really a matter having the plea of guilty set aside having regard to the factual matrix that was presented to the Magistrate. I can't take that point any further, your Honour.
HIS HONOUR: I think in the circumstances I should add to my orders a further order that the orders made by the Magistrate on the third of December 2008 are to be set aside.
MR McNAB: Your Honour, just another procedural matter. He is before this Court on appeal bail.
HIS HONOUR: Yes.
MR McNAB: Would your Honour be minded granting a fresh undertaking back to the Magistrates Court.
HIS HONOUR: That will have to be done, I suppose. He'll have
to sign a fresh undertaking.
MR McNAB: That's right. My submission is, your Honour, bail on his own undertaking.
HIS HONOUR: Do you have any objection to bail continuing, Mr Mitchell?
MR MITCHELL: No objection to bail continuing on the current conditions, your Honour.
MR McNAB: Your Honour, he has that one day reporting condition. I ask that that be removed. He has been reporting for 14 months.
HIS HONOUR: What do you say about the reporting condition?
MR MITCHELL: Your Honour, I would ask that the current conditions remain. There is no------
HIS HONOUR: Where does he live?
MR McNAB: He lives at Tweed Heads at the moment, your Honour, and, as I understand it, he's been reporting to Beenleigh one day a week.
HIS HONOUR: Can't he report to Coolangatta?
MR McNAB: Perhaps.
HIS HONOUR: That's probably more convenient for him.
MR McNAB: If your Honour orders reporting I know Coolangatta is an eight to four. My instructing solicitor is just checking his work hours. If your Honour grants bail with a reporting condition perhaps to the officer in charge of police at Coolangatta or to any other such police officer as that officer directs in writing, I think is the usual wording. I've just been instructed that Beenleigh is fine. He works up that way, your Honour, so if we could leave it at Beenleigh.
HIS HONOUR: Bail will be extended on present conditions.
MR McNAB: Thank you, your Honour. One final matter, your Honour. Would your Honour consider a matter of costs? Of course it is a discretionary matter, your Honour, and it is - the defendant's before the Court because of errors in law applied by the Magistrate and also because of the lack of diligence.
HIS HONOUR: Well, what concerns me is that the Magistrate received far less assistance from both defence and prosecution than I would have thought he was entitled to.
MR McNAB: Absolutely, your Honour. I can't take that point any further.
HIS HONOUR: I think this predicament has come about at least partly because of defence counsel's conduct.
MR McNAB: In the Magistrates Court, your Honour.
HIS HONOUR: In theMagistrates Court
MR McNAB: Thank you, your Honour.
HIS HONOUR: Certainly not in this Court. In the circumstances, I will not make any order for costs.