DISTRICT COURT OF QUEENSLAND

1. [1]
   On 8 January 2009 the appellant appeared in the Richlands Magistrates Court charged with one count of unlicensed driving.  A plea of guilty was entered, and the magistrate imposed a fine and disqualified him from holding or obtaining a driver licence for six months.  On 27 January 2009 the appellant made an application to reopen the proceedings under s 147A of the Justices Act 1886, which was heard and dismissed.  On 7 October 2010 the appellant made a further application for an extension of time to reopen the proceedings under s 147A of the Justices Act, which on 20 December 2010 was also dismissed.  On 17 January 2011 the appellant filed two notices of appeal, one against the decision of 8 January 2009,^[1] and one against the decision of 20 December 2010.^[2]  The latter was within time, but the former was not.  Nevertheless, in the circumstances, the respondent did not oppose the grant of an extension of time within which to appeal against the earlier decision.

Background

2. [2]
   At some stage, the date of which does not appear, the appellant was sent a notice, no doubt in the approved form, advising him that he had accumulated an excess number of demerit points, so that he was confronted with a choice between having his licence suspended for a specified period or going on what is described as a good driving behaviour period for one year.^[3]  The notice set out various consequences of the two options, but importantly warned that, unless he communicated an election of the good driving behaviour period for one year, his suspension would come into effect for the nominated period automatically.  That was in accordance with the Regulation.  The notice had with it a form which he could use to exercise the option in favour of the good driving behaviour period, and advised that this could be presented at a customer service centre or licence issuing agent, sent by mail to a specified address or faxed to a particular number.  If it were sent by mail, the recipient was warned to allow at least two days if posted from the Brisbane metropolitan area, at least five days from rural or remote areas of Queensland, and at least seven days from interstate or overseas.

3. [3]
   On 5 December 2008 the appellant was stopped for some reason by police who, on checking, found that his licence had been suspended.  As a result, he was charged with unlicensed driving.  When the matter came before the court, the complaint was read to him and he was asked how he pleaded, to which he replied, “Guilty, your Honour.”  He was asked whether it was his own free, voluntary plea and he replied yes.  The prosecuting sergeant, when outlining the facts, said that when stopped by the police the appellant had maintained that he thought he was under a good behaviour option.  The sergeant said that the Department of Transport had not received any notice electing the good behaviour option.  When asked what he wanted to say, the appellant said that he had sent the letter, he did not know why the department did not get it, and he thought he was under a good driving behaviour for 12 months.

4. [4]
   The magistrate offered him an adjournment to get some legal advice about the circumstances in which this came about. That appears to have been on the basis that the lawyer might be able to make representations to Queensland Transport, but when asked whether he would advise him to do that the magistrate properly said that he could not give advice from the Bench, but would grant an adjournment for him to look into that if he wanted to. That was entirely appropriate. The offer of the adjournment was declined.

5. [5]
   The appellant raised an issue in relation to the traffic history, that some of the matters in the traffic history were not his but were offences which had been committed by a sibling who gave his name. The magistrate suggested that he raise that matter with his local member. The magistrate then pointed out that the law imposes an onus on the person driving to make sure that their licence is current, so that in effect if a form of that nature was sent in it was appropriate to follow up to make sure that it had been received. The magistrate then went on to impose the penalty referred to earlier.

Appeal against conviction

6. [6]
   The first appeal was brought to this court pursuant to s 222 of the Justices Act 1886.  That Act provides a right of appeal to a District Court judge from an order made by, in practice, a magistrate in a summary way on a complaint for an offence or breach of duty, which this was.  Subsection (2), however, provides as one exception to that right in paragraph (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.”

7. [7]
   In the present case, as I have said and as appears from the transcript of the proceeding before the magistrate, the appellant did plead guilty. It was submitted on his behalf that in circumstances where, as part of his explanation of what had occurred, the appellant had raised facts which, if true, would have indicated that no offence had been committed, the appropriate course for the magistrate was to reject the plea of guilty, or set it aside, and proceed to a trial. That, however, depends on whether the present appeal, so far as it is an appeal against conviction, is not within the scope of paragraph(c) above.

8. [8]
   Counsel for the appellant relied on the decision in Ajax v Bird [2010] QCA 2, where Fraser JA, with whom the other members of the court agreed, said at [5]:

“Other decisions cited by the applicant illustrate the point that s 222(2)(c) may not preclude an appeal to the District Court where the appellant’s plea was equivocal or, upon analysis amounted to a plea of not guilty (see for example Shaw v Yule [1995] QCA 611) or where the appellant had entered a plea of guilty to a charge ‘that clearly did not exist at law’ (see for example Hall v Bobbermen [2009] QDC 118).”

9. [9]
   In Shaw the appellant, who had appeared for himself before the Magistrates Court, had engaged in an exchange with the magistrate, the upshot of which was that, if on the facts put forward by the defendant, there was possession for the purposes of the charge, then she was guilty of that charge.  That is a very different thing from a plea of guilty, and the court held that, when everything said by the defendant to the magistrate was taken into account, she was not really pleading guilty to the charge.  It is not necessary to consider the circumstances in Hall, because clearly the complaint in the present case did disclose an offence known to the law.

10. [10]
    In Ajax, his Honour went on to say in [7]:

“The applicant also contends that he was not guilty because he did produce his vehicle to the Bribie Island police station, although there were no police then available to inspect the vehicle.  This point was raised in the Magistrates Court. … However, the applicant’s counsel made it plain that the submissions went only to penalty. … In these circumstances, the applicant’s plea of guilty should be regarded as unequivocal so that the applicant also had no right of appeal to the District Court against his conviction on this ground.”

11. [11]
    In the present case, the submission about the notice having been sent back was put forward on its face in relation to a matter of penalty, but even so, there is nothing that was said in Ajax to suggest that paragraph (c) will not apply in circumstances where the plea of guilty is one which ought not to have been accepted by the magistrate in view of what was said by the defendant ostensibly in mitigation.  I think there is a difference between a situation where, in the context of everything that was said by the defendant, the defendant is not really pleading guilty, and a situation where the defendant does plead guilty, but either should not have, or the plea should not have been accepted.^[4]  There is nothing in the authorities to suggest that paragraph (c) will not apply in either of those latter situations.  Ajax confirms that, subject to that, paragraph (c) means what it says, and it follows that in the present case there is no right to appeal to this court against the conviction of the appellant of the offence of which he was charged.^[5]

12. [12]
    In those circumstances it is unnecessary, and indeed inappropriate, for me to comment on whether the magistrate in fact should have refused to accept the plea of guilty, given the factual background sought to be relied on by the appellant. Counsel for the appellant argued that the effect of the Acts Interpretation Act 1954 ss 39 and 39A was that the appellant had satisfied the obligation under the Regulation to notify his election to the Department of Transport by duly posting the completed form for such an election, and that evidence of non‑receipt of the form did not change that situation.  For the purposes of the appeal against sentence, counsel for the respondent did not contend to the contrary, so even for that purpose I have not to decide this, but it certainly appears to me to be sound.  However, that is not a matter for me to decide in relation to an appeal against conviction, because no such appeal is properly before me.

Appeal against sentence

13. [13]
    It is, however, clear that an appeal may be brought against sentence, although the appeal was in that respect out of time. Counsel for the respondent, however, very fairly did not oppose the grant of an extension of time if the appeal should otherwise be allowed. The practical explanation is that in the meantime the appellant had been taking other steps which were directed towards obtaining some redress without having to trouble this court. In all the circumstances, and bearing in mind that the substance of the appeal against sentence was also not opposed, I am prepared to grant the necessary extension of time in relation to this appeal.

14. [14]
    For the purposes of the appeal against sentence, counsel for the respondent made the concession referred to earlier, and conceded that the appellant had at least attempted to exercise the election in the way suggested by the documentation which he had received. In these circumstances, assuming that an offence had been committed, it was a mere technical offence, and he did not oppose the contention on behalf of the appellant that an appropriate course would be not to record a conviction and to discharge the appellant absolutely under s 19(1) of the Penalties and Sentences Act 1972, or to impose a recognisance.  That was, with respect, a very sensible approach, and I agree with it.  Assuming that something in fact went wrong, on the facts as presented the appellant had certainly made a reasonable attempt to exercise the option offered to him which did not involve a suspension of his licence, and reasonably believed that he was lawfully entitled to drive at the time he was stopped.^[6]  In these circumstances, there was no criminality involved, and the appropriate sentence was as indicated.  The appeal against sentence should therefore succeed.

15. [15]
    With regard to the question of whether a conviction should be recorded, the relevant considerations are set out in s 12.  In my opinion, in the present case the dominant consideration is that the offence was, on the hypothesis which I must adopt for the purposes of appeal against sentence, a pure technicality which does not reveal any real criminality at all on the part of the appellant, and in those circumstances no conviction should be recorded.

16. [16]
    The magistrate also ordered that the appellant be disqualified from holding or obtaining a driver licence for a period of six months, commenting that this disqualification was mandatory under the Transport Operations (Road Use Management) Act 1995, s 78(3).  It was submitted on behalf of the appellant, however, that where a defendant was discharged absolutely under s 19(1) no “penalty” had been imposed, and that s 78(3) of the 1995 Act applied only when the court did impose a penalty, so that the mandatory six months’ disqualification was not activated.  That is consistent with a decision of another judge of this court, Commissioner of Police v Kirby [2010] QDC 110.  Counsel for the respondent did not contend that I should not follow the decision in Kirby, or that the reasoning and analysis of the relevant statutory provisions in that decision were incorrect.

17. [17]
    In those circumstances, and bearing in mind the importance of judicial comity, I am content, without giving the matter detailed consideration, to follow that decision, and it follows that, as a result of the sentence which I consider ought to be substituted for the sentence imposed by the magistrate, no penalty is being imposed on the appellant, so that the six months’ disqualification is not mandatory. Assuming that there is a discretion to impose that or some other disqualification, for the reasons which justify an absolute discharge, it is in my view inappropriate for any disqualification to be imposed, and I will not do so.

18. [18]
    Accordingly, so far as this is an appeal against sentence, the appeal is allowed, the sentence imposed in the Magistrates Court is set aside, and in lieu thereof no conviction is recorded, and the appellant is discharged absolutely pursuant to s 19(1) of the Penalties and Sentences Act 1992.  I should formally record that I am deliberately not ordering that he be disqualified from holding or obtaining a driver licence for any period.

Events after the conviction

19. [19]
    The appellant did not, of course, promptly file a notice of appeal against any aspect of the order made on 8January 2009.  An application was made to reopen the proceedings under s 147A of the Justices Act on 27January 2009, but that application was rejected and no appeal is brought from that decision.  The appellant then made submissions through his counsel challenging the validity of an infringement notice which was recorded in his traffic history, on the ground that he was not the person to whom the notice had in fact been issued.

20. [20]
    His case, which appeared ultimately to have been accepted by the relevant authorities, was that what had really happened was that his brother had given his name when stopped in connection with the particular infringement notice while riding a motorcycle, so that the ticket had in fact been handed over to the brother, though the name shown on the ticket was that of the appellant. Unsurprisingly, in these circumstances the appellant did nothing about the ticket, and it seems that if that occurs, instead of the relevant authorities having to take proceedings by way of complaint and summons under the Justices Act, this is simply treated as a conviction and entered on the traffic history.  This would have the effect that the offence would appear on a person’s traffic history even though that person knew nothing whatever about the matter.  It was the points from this offence which formed part of the total demerit points which were relied on as justifying the notice requiring an election and in the absence of an election to the contrary, the suspension of the appellant’s driver licence.

21. [21]
    How one does something about such a situation is by no means clear; this legislation is not carefully adapted to preventing injustice to those to whom it comes to be applied. It is, however, unnecessary to consider that further, because ultimately when sufficient material had been gathered, the relevant authorities were persuaded to withdraw the enforcement notice, and to rectify the appellant’s traffic history. This meant in effect that it was now recognised that the notice of election ought never to have been sent to the appellant, but of course that could not change the fact that it had been sent. The problem was that I suspect the effect of the legislation is that the “conviction” associated with this enforcement notice and the resultant demerit points were validly included on the traffic history up to the time when the enforcement notice was withdrawn and the traffic history was rectified. On its face therefore, this retrospective change did not invalidate the proceedings which came before the magistrate on 8 January 2009.

22. [22]
    Nevertheless, the appellant made a further application under s 147A of the Justices Act to reopen those proceedings.  That application was ultimately dismissed, and that decision is the subject of the second appeal.

23. [23]
    Three bases were relied on by counsel for the appellant in relation to the second appeal. The first was s147A of the Justices Act. That section contemplates a reopening where a conviction or order is based on or contains an error of fact:  s&147A(2).  Subsection (3) gives a series of examples of such cases, as follows:

“(a)the conviction or order has been required or made against the wrong person;

2. (b)
   the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant;

3. (c)
   the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings; or

4. (d)
   the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit.”

24. [24]
    Although there was an entry in the appellant’s traffic history which could be said to have been recorded or made against the wrong person, that was not the relevant issue for the purposes of paragraph (a); that paragraph is concerned with whether the conviction or order in the proceedings sought to be reopened was made against the wrong person, and that was not the case here.  There was no suggestion that paragraphs (b) or (c) applied, but counsel for the appellant relied on paragraph (d), on the basis that the conviction or order was made because of someone’s deceit.  What was relied on was the deceit of the brother in providing the false name to the police officer which led to the enforcement notice being issued and ultimately the resulting “conviction” finding its way onto the appellant’s traffic history.

25. [25]
    Assuming that that constituted someone’s deceit, it was not a relevant issue for the purposes of paragraph (d).  Once that step had occurred, the traffic history included that entry, and the notice of election was in fact sent, and ultimately the suspension was in fact imposed.  The fact that the enforcement notice “conviction” was ultimately withdrawn did not alter the fact that it was there at the time when the offence was committed, and at the time which was relevant for the proceeding on 8 January 2009.  Nothing that occurred in that proceeding occurred because of anyone’s deceit.  The magistrate was actually told about this, and correctly regarded it as irrelevant.  It was not possible to identify anything which the magistrate was told on that day, or on the basis of which the magistrate proceeded on that day, which was the product of some deceit.  Accordingly, it seems to me that the paragraph did not apply, there was no relevant error of fact and, insofar as the application was based on s 147A, it was properly rejected by the magistrate.

26. [26]
    Reliance was also placed on s 188 of the Penalties and Sentences Act 1992.  Section 188 permits a proceeding to be reopened if a sentence has been imposed that is not in accordance with the law, or the court has failed to impose a sentence that the court legally should have imposed, or imposed a sentence decided on a clear factual error of substance, or failed to fix a date for an offender to be released on parole as required under Part 9 Division 3.  It will be immediately apparent that in the circumstances relied on none of these paragraphs applied.  There was no factual error; the magistrate was told the true factual position, even if there was a legal error in his failing to realise that if the facts he was told were true no offence had been committed.  This is not a situation where the magistrate sentenced on the basis that a particular relevant fact existed, and that did not exist, so there is therefore no question of reopening the sentence under s 188 of this Act.

27. [27]
    Finally, counsel for the appellant relied on an “implied power of the Magistrates Court to prevent injustice.”  No doubt it would be desirable for the Magistrates Court to be able to prevent injustice, but I do not consider that that provides any basis for implication into the relevant statutory provisions of a power to reopen a proceeding which had been heard and determined.  The ordinary approach is that once a court has heard and determined a particular matter then, apart from any consequential issues such as enforcement, the court has completed its function and has no power to do anything more in relation to the matter.  It is functus officio.

28. [28]
    There are all sorts of rules about when a point is reached where a judgment or order of a court can no longer be recalled, either generally or on particular grounds, but the whole point about those rules, some of which are based on specific powers conferred by statute or by rules made under a statute, is that the starting point is that once a court has heard and determined a matter it is over and done with, and there is no power to reopen it. Hence, the existence of specific statutory powers, like s 147A and s 188.  If there were to be implied into some applicable legislation a general power to prevent injustice, there would be no need for such express powers.  In my view, no such implication can or should be made, and there was no power to interfere with the earlier order on this basis.

29. [29]
    In these circumstances, the second application to set aside the sentence was correctly dismissed by the magistrate. The magistrate was also correct in noting that the fact that the enforcement notice had ultimately been withdrawn, and the traffic history ultimately amended, did not change the facts as they existed at the time of the original conviction. It did seem to me however that, insofar as the magistrate proceeded on the basis that a second application under s 147A could not be made, that was an error.  The section does not contain any such restriction, and no such restriction should be implied.

30. [30]
    It may be that if one application is made and refused, a second application could not be made on the same ground, because whether the earlier proceeding should be reopened on that ground has already been heard and determined; indeed, in such circumstances, making a separate application could amount to an abuse of process. It seems to me that otherwise there is no statutory bar to a second application being made under s 147A, but in the circumstances it is, strictly speaking, not necessary for me to decide that either.  The short answer is that, whatever the reasons, the second magistrate’s decision was correct, and that appeal is dismissed.