Honey v McCollom[2012] QDC 353

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  By a notice of appeal lodged in this Court on 10 August 2012, the appellant seeks to appeal orders that were made in the Magistrates Court at Maroochydore on the 26th of July 2012, in respect of a complaint brought against him in that Court.

In the notice of appeal, the appellant identifies the order the subject of the appeal as "Disobeying the Speed Limit - Infringement Notice number 150958434" and identifies the Court as the Maroochydore and the date, 26 July 2012.  Then, and in the space in the form for providing the details of the order, he refers to the date 26 July 2012, both in relation to the date convicted and date sentenced, the latter reference being with the addition of the words "without my attendance" and he then goes on to set out the orders in the nature of the penalties imposed on him in respect of the matter of the complaint on the 26th of July 2012.

Further, and in respect of the grounds of appeal, the appellant wrote:

"I'm appealing the order because I'm not guilty for the offence due to a mechanical fault with my car and for the reason of I haven't had it heard as I've been absence from the hearing to do so, so I was wanting to have a say in why I'm not guilty".

And on the next page it appears to continue:

"My mechanic can come to hearing for further information about details about mechanical failure."

In order to understand the appellant's complaint, it needs to be noted that there were two events that occurred in respect of the complaint which was before the Magistrates Court at Maroochydore on 26 July 2012. 

In the first instance, the record demonstrates that the Magistrate dealt with the complaint pursuant to section 142A(4) of the Justices Act 1886, when the appellant failed to appear at the time appointed for the hearing of that complaint.  The consequence was the orders to which the appellant referred in the notice of appeal, which were that he was fined $1200 and ordered to pay costs of Court in the amount of $78.50, with recovery being referred to SPER.

It can be noted that the scheduled hearing for 9.30 a.m. on 26 July 2012 had been set when the complaint was adjourned on 20 June 2012, after the appellant had also been late in attendance at Court for hearing on that date and after orders had been made upon conviction of the appellant, in his absence, and he was then heard by the then Presiding Magistrate and granted a re-hearing, with the earlier orders being set aside.

It can be further noted that the hearing on 20 June 2012 was itself set on 19 April 2012 after the appellant entered a not guilty plea to the charge and the complaint was adjourned to 9.30 a.m. on 20 June 2012 for hearing.

At all times the appellant had been allowed to go at large in respect of the complaint and the Court file discloses that in addition to his Court appearances, on each adjournment a notice was sent to the appellant informing him of the requirement that he appear and surrender into the custody of the Magistrates Court at Maroochydore at each designated time and date.

It can be gleaned that the appellant at least has some difficulty with punctuality, as he was even late for the hearing of this appeal on 13 November 2012, notwithstanding having been given written notification of the 10.00 a.m. hearing time. To an extent and has been explained to him, he is therefore an author of his own problems. 

However, the second event, which occurred on 26 July 2012, is that the appellant completed and lodged a form entitled "Application for Re-Hearing or Re-Opening" and it is apparent from the record that this was done in order to enliven the exercise of discretion pursuant to section 142A(12) of the Justices Act and so that the appellant could have the matter of the complaint heard.

It is also apparent that this application, although considered by the same Magistrate, who had earlier in the day made the orders in the appellant's absence, was considered ex-parte and not in open Court and only on the materials included in and with the application form.

The Court file is endorsed to the effect that the application for "re-opening" was refused by the Magistrate and the appellant was formally advised of this by letter from the Registrar, dated 26 July 2012.  The contents of that letter were:

"I refer to the above matter and the application for re-hearing or re-opening lodged 26/07/2012.  I wish to advise that the Magistrate has endorsed the file as follows:-

'Application for re-opening refused.  This is the second time the appellant has failed to appear.  The matter was listed at 9.30 a.m. and no prior contact made with the Court.  The application does not set out why Mr Honey did not appear.'

Accordingly, your application has been refused and the fine has been referred to SPER.  If you have any questions, please don't hesitate to contact this office".

Accordingly and as appropriately conceded by the Respondent, and having regard to the lack of specificity in the notice of appeal, it is necessary to have regard to both orders made on 26 July 2012.  Each are within the meaning of the definition of "order" in section 4 of the Justices Act and it would be sufficient for the appellant's purposes if he succeeded in having either of them set aside.

The appeal to this Court is conducted as a re-hearing on the evidence given in the proceedings before the Justices except where, as has occurred here, the Court gives leave to adduce new evidence.  In those circumstances, and pursuant to section 223(3) of the Justices Act, the appeal is by way of re-hearing on the original evidence and the new evidence.

Although such observations are more germane to an appeal against an order made consequentially to a contested evidential hearing, it can first be noted that the Court of Appeal has endorsed an approach which requires this Court to undertake a review of the record of proceedings and to form and independent conclusion as to the orders made, having due regard to the decision that was made and any advantage that the Magistrate had in making that decision (see Rowe v Kemper [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17]).

This matter is further complicated in that each of the decisions made on 26 July 2012 involved an exercise of discretion and each was determined ex-parte and, in the second instance, in-camera.

In the first instance, an order was made pursuant to section 142A(4) of the Justices Act, when the appellant failed to appear.  Subject to considerations as to the effect of section 142A(12B), such an order was open to the Magistrate because it is clear that the appellant had reasonable notice of the requirement and was required to so appear by a notice given under section 14A(2) of the Bail Act 1990 and because the facts and circumstances of the offence (essentially being the driving motor vehicle at 183 kilometres per hour and in excess of a 110 kilometre per hour speed limit, on the Bruce Highway at Eumundi on 26 October 2001) were particularised in the complaint.

However, it is a different issue as whether it was appropriate to do so and as to whether the Magistrate appropriately dealt with the matter under section 142A(4) rather than section 142A(12B). 

However and more importantly, what appears to have not been appreciated or imparted to the Magistrate (as the respondent should have been in a position to and have done) was that when the order was made on 20 June 2012 to re-hear this matter, it was noted that the appellant's contention was that he had a defence to the charge due to the implications of a mechanical defect in his car about which he desired to give evidence and call a mechanic.  In fact, the Magistrate is recorded in the transcript for the hearing that occurred in open Court on 26 July 2012 making the following observations about the situation before him:

"BENCH:  As I understand, there has been some communication from him, has there, or‑‑‑‑‑

SGT STEPHENS:  No, there was an early communication with the traffic camera office and that's all I am aware of.

BENCH:  I - where did we hear he's going to run the defence his foot got stuck on the accelerator or something.

SGT STEPHENS:  Yes, that was a letter to the traffic camera office‑‑‑‑‑

BENCH:  Oh, okay.

SGT STEPHENS:  ‑‑‑‑‑I believe, early on in the piece.

BENCH:  All right.  So, it might be one where he's just pleaded not - just trying to delay the inevitable.  Might be that.  Who knows?  It's only guessing…"

Consequently, the order made in the appellant's absence on 26 July 2012 was expressed as follows:

"BENCH:  All right.  Well, look, might view was the matter was reopened at Mr Honey's request [sic], and there was set aside, then it was set for hearing, and an officer's here today to give evidence, and that's been inconvenience to the police.  I don’t feel bound by the ticketable amount, and I set the fine at $1200 and costs of Court is $78.50.

The reason I set it at $1200 rather than the ticketable amount is simply that it was set for hearing.  He loses any discount for the particular amount, and I refer the fine to SPER."

There appears to be an error in that recitation because the Magistrate had been earlier informed by the Prosecutor that"

"SGT STEPHENS:  I can indicate that this is one of these matters where there are no police witnesses.  It was to be done on a traffic camera matter."

Also, it can be noted that the original orders made on 20 June 2012 and before they were set aside, were for payment of a fine of $933 and Court costs of $78.50; that is a total of $1,011.50 with two months allowed for payment and in default, 10 days' imprisonment.

Further and by way of contrast, on 20 June 2012 the Court file is noted that a "Conviction is not recorded" whereas on 26 June 2012, the notation is "Conviction recorded".

It can be observed that the procedure allowed under section 142A(4) for ex-parte determination of matters of this kind is an obviously useful tool for a busy Magistrates Court in dealing with unco-operative or recalcitrant defendants and particularly those who may be seeking to unjustifiably delay the inevitable outcome of proceedings brought against them.

However, it is difficult to discern a statutory intention that a defendant who genuinely claims a defence in respect of charge should necessary be precluded from having the issues decided due to complications in respect of attendance requirements.  Such a conclusion is support by reference to section 142A(10) and (10A) which require written notification to the defendant as to any determination made under the section and advice as to the options open under succeeding sub-sections, including sub-section (12), which then allows a period of two months for application by the clerk of the Court, the complainant or the defendant for the Court "at the place of determination" to grant a re-hearing of the complaint, which may be granted for any reason that the Court thinks proper "upon such terms and subject to the payment as such costs as it thinks fit".

Of course, such a re-hearing is not necessarily to be had just for the asking.  The Court has a discretion to exercise, which is not fettered by statutory criteria, but which must necessary be exercised judicially.  At least on a defendant's application an analogy might be made with the position of an applicant for an extension of time within which to bring an appeal against orders that have been made by a Court.  The frequently cited principles are those referred to in R v Tait [1999] 2QR 667 at [5]:

“The recent approach of this Court to the question of extending time in criminal appeals is sufficiently illustrated by R. v. Mentink and a number of unreported cases in this Court. These suggest that 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. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.” (citations omitted).

These considerations are then apposite to the second event on 26 July 2012.  It can first be noted that it seems because and in contrast to what occurred on 20 June 2012, the appellant did not arrive, on this occasion, whilst the Court was still convened and dealing with other matters, the appellant was required to complete a form of application for re-hearing. 

Although not numbered, this form does appear on the Queensland Courts website as an approved form pursuant to section 265 of the Justices Act.  However, one apparent difficulty with it is that it contains the statement:

"You will be notified by the originating Court as to outcome of this application by mail."

Notwithstanding the usual practices in the exercise of jurisdiction under the Justices Act, an implication is an expectation that the application will not be heard in open Court and possibly without notification to or hearing from any other interested party.

However, and by contrast with the express requirements of section 142A(10), when a matter is dealt with in the absence of a defendant, there is no specific statutory requirement of any notification of the outcome of an application for re-hearing. Although such a requirement may arise pursuant to section 150 of the Justices Act.

Further, there appears to be some confusion as to which are the approved forms under the Justices Act.  As one is referred in the contemporary context, the list of approved forms on the Court's website no longer includes a Form 24, which at some stage was included, it appears, for the purpose of notifying the outcome of a re-hearing application.  However, the forms noted as notified or published in the Government Gazette as forms approved for the Justices Act 1886 on the website provided by the Office of the Parliamentary Council does include Form 24.  However, the unnumbered form which was used in this case and which appears on the Court website, is not referred to on the website of the Office of the Parliamentary Council.

I hasten to add that I am not suggesting that the forms themselves may be regarded as being invalid.  In fact, there is a disclaimer which can be read on the website at the Office of the Parliamentary Council which makes specific reference to the Statutory Instruments Act, s 58(8, in that regard.

The present concern is as to the legislative requirements in relation to the application for re-hearing.  In that regard, it is at least difficult to comprehend how the imposition of terms or conditions such as the payment of costs could be determined without input from an opposing party, or as to why another interested party should not have an opportunity to be heard on such an application.  And section 142A(12A)(b) appears to at least impliedly contemplate a hearing at which all of the parties are present, because it provides that on granting a re-hearing:

"The Court may proceed with the re-hearing forthwith, or may set down the re-hearing for a later date".

The convenience and efficiency of being able to consider applications of this kind, in such an administrative fashion can be noted and in many straightforward cases there may no adverse outcome of adopting such a method.  But even a hearing of that kind would need to be procedurally fair to all interested parties.  For instance, an opportunity for cross-examination on material put forward in support of an application could not be ruled out and in this case no sworn evidence was provided or required. 

Therefore and whilst as I have noted, there are many indications that the procedure apparently encouraged by the form and adopted in this case is not actually legislatively allowed, it is for the reasons that follow not necessary to come to a concluded view on that point.

It can, however, be observed that even if such an application is to be considered in the first instance in the absence of the parties, it may be necessary to be alert to the need to convene in court and in the presence of the parties, when it is desirable in order to deal with the application fully and judicially. 

Moreover, it is primarily necessary to review what has actually occurred in this instance.

In the application form, the appellant stated the following in response to question 11: "What are the grounds for your application (please attach any additional information)?":

"My reason for application is that my mechanic had mistaking the hearing date and I needed her to be with me as to tell the Court what had happened with the car.  As with the mistake she made which was a communication error, she had already booked a couple of jobs which left it too late.  As I missed the hearing I've attached a letter from mechanic."

Attached in the Court file, is a hand-written letter under the hand of Allison Hayes which states in part:

"I, Allison Hayes, could not attend Court today due to work commitments.  However, if the matter is to be adjourned and any further assistance required, I will make a opening and be available to attend and assist in any way that I can.  Please find enclosed a letter of my findings on the said vehicle and also a receipt for the work carried out to eliminate further malfunction of the faulty throttle components due to unforeseen wear."

The letter is dated 27 July 2012, but it is also date-stamped, as is the application form itself, as received in the Maroochydore Magistrates Court office on 26 July 2012.  However, the attachments referred to in that letter are not in the Court file and appear to be omitted from the materials submitted.

At the hearing of the appeal and because it was the appellant's obvious intention to have this material considered on his application, the appellant was given (without objection by the respondent) leave to adduce a copy of the mechanic's further letter and attached invoice for repairs to a faulty throttle on 27 October 2011.  Those documents are marked as Exhibit 1 on the appeal hearing.  That letter is also dated 27 July 2012 and, in part, contains the following:

"Upon inspection, a faulty throttle linkage has been located.  The wear to the linkage has allowed it to fail and jam the throttle of the engine at least three-quarters open and render the accelerator in the car, being a foot-controlled pedal, null and void.  This type of failure has allowed the engine to keep on climbing in speed and in engine revs with no control of the throttle.  He has had limited control of the increasing speed.  Due to safety concerns, it was not applicable to turn the engine off as that would have affected the vacuum break booster, limiting further control of the vehicle as well, as would have limited the steering control of the vehicle as it is power-steered."

It is clear that the decision of the Magistrate upon this application was based too narrowly and particularly upon what was identified as a lack of explanation for not being at the Court at the appointed time on a second occasion.  This does not appear to be a situation where the appellant has sought to avoid the prospect of an unfavourable outcome to any adjournment application, he should have been ready to make at 9.30 a.m. on 26 July 2012.  He was obviously at the Courthouse later that day and before the day was out he had submitted his albeit incomplete application for re-hearing and he informed this Court that he remained at the Courthouse, until informed verbally that his application had been refused.

Obviously, had this application been heard in open Court and even in the absence of the Prosecutor, it is likely that the omission of Exhibit 1 would have been disclosed to the presiding Magistrate and the unrepresented applicant could have been given an opportunity to expand upon any perceived omission in giving his explanation for being late.

In any event, the implication from what he had stated in the space allowed in the form, is that he had been delayed by his dealings with his proposed mechanic witness when he expectedly found that she was not available to accompany him to Court for the hearing.

Accordingly, it is the final order refusing the re-hearing of this matter which is critical to this appeal.  In that regard and even if there was no irregularity in the method adopted in that determination, it is apparent that the Magistrate did not appropriately take into account all of the relevant considerations.  Quite apart from the clear focus in the reasons recorded upon the perceived absence from the applicant's form of an explanation for not appearing on time (as opposed to there being an established absence of any such explanation), it is apparent that no appropriate consideration was or could have been given to the material relating to the appellant's proposed defence to the charge because of the omission of the material, otherwise referred to as being intended to be attached to the application.

Moreover and having regard to all the material which was sought to be placed before the Magistrates Court on the re-hearing application and having regard to the opportunity afforded to the respondent to be heard in this respect on the hearing of this appeal, I am satisfied that proper reason should have been found for granting the application for re-hearing.

In so determining, it should be observed that to the extend that the appellant claims a defence to this charge (and which most likely appears to raise consideration of section 25 of the Criminal Code as an issue to be negatived or disproven by the prosecution), it has been necessary only to consider whether the appellant appears to have some arguable contention in the sense of an evidential basis for it.  Any such issue, of course, remains to be determined upon consideration of all the relevant evidence to be adduced and the circumstances established by that evidence.  For instance, it may be that, as averted to by the respondent in this Court, having to the circumstance that the vehicle in question have a manual transmission, that this may have presented opportunity to have acted differently.  But that is a consideration for the trial and would need to be assessed in the light of all of the relevant circumstances.

Accordingly, the appeal is allowed and the formal orders are:

1. The order made in the Magistrates Court at Maroochydore on 26 July 2012 refusing the appellant's application for re-hearing, is set aside;

2. The application for re-hearing is allowed and the orders made earlier on 26 July 2012 upon the conviction of the appellant on the complaint, are set aside;

3. The complaint is sent back to the Magistrates Court at Maroochydore for re-hearing (by a Magistrate other than the Magistrate who made the orders on 26 July 2012) and is adjourned for mention on 19 November 2012 at 9.30 a.m.; and

4. The defendant is allowed to go at large in respect of the charge on condition that he appear and surrender into the custody of the Magistrates Court at Maroochydore at 9.30 a.m. on 19 November 2012.