Cutts v Waller[2014] QDC 241

[2014] QDC 241

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE R S JONES

No 819 of 2014

WINSTON GERALD CUTTS    Appellant

and

CONSTABLE K. WALLER    Respondent

BRISBANE 

12.39 PM, MONDAY, 20 OCTOBER 2014

EX TEMPORE JUDGMENT

HIS HONOUR: I am concerned here with an application for leave to adduce new or fresh evidence in the hearing of an appeal to be heard next week. The evidence sought to be relied on falls into four categories. First, medical evidence to the effect that, at the time that the appellant was interviewed by the police, he was affected by painkillers and in particular morphine;  second, police field records or the record of interview of the appellant, which the appellant says would reinforce the conclusion that at the time of the interview he was affected by painkillers;  and also, in this context, as I understand it, that record of interview would also be relied on to identify that the police officers had not given the appellant appropriate warnings under the police procedure legislation and regulations.

The third piece of evidence is closed-circuit TV footage which the appellant says would reveal two matters:  first, inferentially point to the lack of speed on his part, and second, that the real cause of the accident was the shifting of the load on the truck he was driving at the time. As I understand it, the appellant contends that the accident was a consequence of his load shifting. The fourth category was a number of witness statements which the appellant says would tend to reinforce the conclusion that the real cause of the accident was the shifting of his load.

In material filed by the appellant on the 3^rd of October 2014, the medical evidence, the field recording, and the CCTV footage was referred to. No reference was made to the witness statements, but upon an oral application by the appellant to include reference to the witness statements, he was allowed to also raise that issue.

The grounds of appeal are as follows:

3. (1)
   I plead guilty to the charges under injucement –

that should read, obviously, inducement –

of plea deal of an offer that was taken back by them the day and then reoffered. (2) The Prosecutor withheld evidence they then produced in Court. (3) I instructed my lawyer not to challenge the –

I assume, Prosecutor’s case –

in fear the offer would yet again be withdrawn. (4) The Court failed to take into account all evidence. (5) The Magistrate, in sentencing, stated due to me hitting another vehicle, he was suspending my licence.

The deal referred to in the grounds of appeal, as I understand it, was an offer by the Crown not to proceed with the dangerous operation of a motor vehicle offence, but instead proceed on the basis that the appellant was driving with undue care and attention. Also, as I understand it, the reference to the evidence produced in court was evidence led by the police prosecutor from the bar table about the mechanical condition of and method of loading the truck.

Section 223, subsection (2) of the Justices Act 1886 relevantly provides:

3. (1)
   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the Justices.

3. (2)
   However, the District Court may give leave to adduce fresh, additional, or substituted evidence (new evidence) if the Court is satisfied there are special grounds for giving leave.

These provisions have been considered on a number of occasions by this Court, but more relevantly, the Court of Appeal. In the decision of Pavlovic and the Commissioner of Police [2006] QCA 134, that Court applied the reasoning of the High Court in the decision of Gallagher and The Queen (1986) 160 CLR 392. Essentially, three specific matters must be dealt with when considering an application to adduce new evidence. They are, first, a consideration of the issue of whether the evidence intended to be now relied on would have been available upon the application of reasonable diligence at first instance, and, if it was, was there a sufficient explanation as to why it was not adduced on that occasion;  second, whether the evidence is apparently creditable or at least capable of being believed;  and finally, if it was capable of being believed or creditable, might it reasonably have led the tribunal below to adopt a different course.

Before going on to consider those thresholds, some consideration of the history of the matter is relevant. On 10 February 2014, the appellant pleaded guilty of one count of failing to exercise due care and attention in the operation of a motor vehicle and one count of failing to wear a seatbelt. He was find $1250 for both offences and disqualified from holding a drivers licence for a period of three months. After submissions made on his behalf by his solicitor, no convictions were recorded. Obviously, the period of the suspension has expired and the fine is presently with the State Penalties Enforcement Registry.

In effect, it would appear, then, the underlying purpose of continuing with the appeal is that the appellant simply wants to have his name cleared and any suggestion of a conviction be expunged from his record. It would seem to me that a fundamental difficulty with the appellant in respect of the substantive appeal is that he pleaded guilty to both offences, and section 222(2)(c) of the Justices Act relevantly provides:

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.

Clearly, the grounds of appeal do not attack the penalty imposed. The grounds of appeal, together with the appellant’s submissions before me, make it clear that it is the actual conviction that is in contest. At the conclusion of argument, the appellant sought to make an oral application to have his plea of guilty withdrawn. I refused to permit the appellant to make such an application, essentially for two reasons.

The first was that I doubted that this Court had the jurisdiction to hear such an application, and I was not taken to any material to suggest that this Court does have the jurisdiction. The second matter was, as I pointed out to the appellant, that in the absence of him being able to support his application with evidence in an appropriate form, his application would have been doomed to fail. In any event, I am prepared to proceed on the basis that the appellant might, on the hearing of the substantive appeal, be able to get around or otherwise escape the operation of section 222(2)(c) of the Justices Act.

On the 10^th of February 2014, as I said, the appellant was dealt with for one charge of driving with undue care and attention and one count of failing to wear a seatbelt. The circumstances surrounding those charges were that, whilst the appellant was driving his truck through an intersection in Toowoomba, it overturned and struck a pole. The appellant was injured. Luckily, no one else was injured.

The proceedings before the Court below proceeded on the basis that the particulars of that charge were that the appellant was driving at an excessive speed. That was referred to in the proceedings below where, at page 6, at about line 35 the appellant’s solicitor indicated that the basis for the plea of guilty was that his client was travelling – the word struggling appears in the transcript but it was clearly a reference to travelling in excess of what could be said to be a “reasonable” speed. His solicitor, Mr Quinn, then went on to say, “and that that was the basis for the plea of guilty”. And that is repeated at page 7 of the transcript at line 40.

Returning then, to the new evidence that the appellant wishes to rely on. The appellant readily conceded that all of it was available, and readily so, on the 10^th of February 2014. The appellant contends though that the reason why it was not adduced on the day was because his solicitor had failed to follow his instructions. I reject that proposition for two reasons in particular. First, at the very outset what occurred was as follows. The prosecutor indicated that the Crown was no longer going to proceed with the charge of dangerous operation of a motor vehicle. After being advised of that the learned magistrate dismissed that charge against the appellant. His Honour then went on to point out that the charge that the appellant was now faced with was one of failing to drive with due care and attention. At page 2 of the transcript at line 41, his Honour then said, “Do you understand that charge?”, to which the appellant replied, “yeah”. His Honour then asked:  “How do you plead?”  The appellant responded:  “Guilty.” His Honour then went on to say:  “Guilty plea made by your own free will?”  The appellant responded:  “By plea of agreement.” That was a reference to the agreement by the Crown to proceed only with the undue care and attention charge as opposed to the dangerous operation of a motor vehicle charge. His Honour then went on to say:  “Well, I am just – my question is, is your plea made on your own free will in the sense – has anyone put any pressure on you to plead to this charge?”  The appellant answered “no”. The appellant was then asked how he intended to plead to the seatbelt offence, and the defendant indicated that he understood that he had to plead to that offence, and when asked how he intended to plead he said, “Guilty with extenuating circumstances.”

It seems tolerably clear that the extenuating circumstances to which the appellant was referring to was the fact that he thought his medical exemption which exempted him from having to wear a seatbelt was still current when, in fact, it was not. It is also clear to me that the appellant was not only made fully aware of the nature of the charges against him and that he understood them but also pleaded guilty to them without there being any inducement. Further, I reject the contention that his solicitor acted contrary to his instructions not only because of those answers to which I have already referred, but also at no stage during the proceedings did the appellant indicate that the solicitor was either saying anything or doing anything that the appellant was dissatisfied with and/or objected to.

As to the medical evidence, it is my view that it would take the appellant’s case nowhere. It may well be that at the time he was interviewed by the police, his comprehension was affected by painkillers, but there is no suggestion that on the day the matter was dealt with in the court below, his ability to know what he was doing was in any way affected by any debilitating substance. For the same reason, I also consider that the field record of interview would do nothing to advance the appellant’s prospects on appeal.

Turning then to the CCTV footage, even accepting that this evidence might be capable of supporting the appellant’s version of events, in circumstances where he pleaded guilty to the charges and there was no reasonable explanation as to why this material was not produced and relied on on 10 February 2014 and where, on my reading of the grounds of appeal, those grounds would still be able to be argued at the hearing of the substantive appeal,  I am not satisfied that these are sufficient grounds to permit this evidence to be now relied on. What I mean in the latter regard  is that if the appellant was capable of convincing the judge hearing the appeal that the prosecutor indeed withheld evidence or that his solicitor had failed to obey his instructions or that the magistrate failed to take into account all of the relevant evidence, then his appeal might succeed or the matter might be remitted back to the Magistrates Court. It appears to me that the exclusion of this evidence would not necessarily preclude the appellant from arguing his grounds of appeal.

Turning then finally to the witness statements, some of those statements might tend to support the appellant’s now version of events. But some are neutral about the cause of the accident and some, in fact, might tend to suggest that speed on the part of the appellant was involved. In any event, for essentially the same reasons for not allowing the admission of the CCTV footage, I have reached the same conclusion about the admissibility of the witness statements, and for these reasons, the application to adduce new evidence is dismissed.

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