Condon v Commissioner of Queensland Police Service
[2014] QDC 291
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- Unreported Judgment
- Condon v Commissioner of Queensland Police Service[2014] QDC 291
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Condon v Commissioner of Queensland Police Service[2014] QDC 291
Condon v Commissioner of Queensland Police Service[2014] QDC 291
DISTRICT COURT OF QUEENSLAND
CITATION: | Condon v Commissioner of Queensland Police Service [2014] QDC 291 |
PARTIES: | GLEN MICHAEL ROBIN CONDON (appellant) v COMMISSIONER OF QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 176/14 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Mareeba |
DELIVERED ON: | 17 December 2014 |
DELIVERED AT: | Cairns |
HEARING DATE: | 11 December 2014 |
JUDGE: | MORZONE QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal – conviction – summary charges – driving without due care and attention, driving with drug present in blood, possess utensils or pipes – mode of hearing of appeal – error of law – findings of fact in circumstantial case – witness credit – conviction unsafe and unsatisfactory – sentence manifestly excessive Legislation Justices Act 1886 (Qld) ss 145, 222, s 223(1), 227 Cases Johnsonv Johnson (2000) 201 CLR 488 Fox v Percy (2003) 214 CLR 118 Straker v R (1977) ALR 103 R v Wedd (2000) 115 A Crim R 205 Denning & Garden v The Queen [2013] QDC 185 |
COUNSEL: | The appellant appeared for himself Mr E Coker for the Respondent |
SOLICITORS: | The Office of Director of Public Prosecutions for the Respondent |
- [1]On 17 October 2014 the appellant was convicted in the Magistrates Court held in Mareeba after a summary trial of driving without due car and attention (charge 1), and on his own pleas of guilty, driving a motor vehicle while a relevant drug was present in blood or saliva (charge 2) and possess utensils or pipes that had been used (charge 3).
- [2]The appellant now appeals against his convictions, including the decision disallowing the appellant to change his plea on charges 2 and 3.
- [3]Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered. The District Court Registry has received the Magistrates Court file including the plaintiff’s medical records and transcript of the trial hearing. However, the clerk of the court did not send any trial exhibits contrary to s 222B Justices Act 1886. These arrived after the hearing, and I have regard to them.
Background
- [4]The charges arose out of a motor vehicle accident on 11 October 2013.
- [5]In the early morning of 11 October 2013 the appellant had a motor vehicle accident when his articulated motor vehicle failed to take a bend and left the Kennedy Highway at Walkamin. The articulated vehicle was a 2001 IVECO Power Star Prime Mover with a trailer, carrying a Toyota Corolla hatchback car and a commercial grader.
- [6]The defendant later participated in a record of interview with police at the Gympie Station. At that time, the defendant made admissions about taking party drugs and being in possession of a bottle used for smoking.
- [7]The matter first came before the court on 28 April 2014, but he failed to appear. It was later mentioned on 26 May 2014 when defendant appeared by telephone. The prosecution asserted that the appellant entered a plea of guilty with respect to charges 2 and 3 on 26 May 2014. The court endorsement on the bench charge sheets do not evidence any arraignment or plea of that day.
- [8]The police brief or QP9 was mailed to the appellant on 16 May 2014. The prosecution informed the magistrate that the full brief of evidence for trial was sent to the defendant on 21 July 2014.
- [9]There is a file endorsement on 11 August 2014 indicating a further mention with the defendant over the telephone. The magistrate on that occasion endorsed the file with plea indications for each charge and remanded the defendant to appear on 17 October 2014 for hearing. Contrary to the view of the trial magistrate, I interpret the endorsement of a prospective indication of an intention to plea rather than a confirmation of past event.
- [10]There is no other record of the proceeding, either endorsed or transcribed, evidencing an arraignment or a guilty plea prior to the trial. Given that the proceedings occurred by telephone, an accurate record of the proceeding would be all the more important. At best there was the bare assertion of the prosecutor and the defendant’s vague acknowledgment of having entered a guilty plea to charges 2 and 3 during an exchange with the magistrate at the beginning of the trial. The appellant did not say when or how he entered that plea. It would be difficult to be properly engaged in such a critical step in the proceeding over a telephone.
- [11]There is no dispute that charge 1 was always contested and destined for trial. However, it is less clear whether, and if so when, the appellant entered a guilty plea in respect of charges 2 and 3. When the trial began, the police prosecutor relied upon a guilty plea for charges 2 and 3, and the appellant sought to withdraw it. The trial magistrate dismissed that application and proceeded with the trial on charge 1 only.
- [12]After hearing the summary trial, the trial magistrate convicted the appellant on charge 1 and proceeded to sentence him on all charges. On all charges the appellant was sentenced to 2 years probation, and in addition he was disqualified from driving for 12 months for driving without due care and attention (charge 1), and disqualified from driving for 6 months for driving with a relevant drug present in blood or saliva (charge 2).
Mode of Appeal
- [13]Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special grounds with leave.
- [14]I considered that the state of the file, incomplete record and the inherent injustice to the parties, constituted “special grounds” to enliven the discretion under s 223(2) to grant leave to adduce substituted evidence in the appeal in an attempt to reconstitute the record, so far as might be relevant to the issues in the appeal.
- [15]The appeal ought not be a new trial to consider, as if presented for the first time, the arguments advanced. Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.
Grounds of Appeal
- [16]The appellant is self represented and the grounds of appeal were difficult to discern from the notice of appeal. The respondent accepted, and the appeal proceeded on the basis, that the appellant appeals against the conviction on all charges on two grounds of appeal:
- The conviction in relation to charge 1 of driving without due care and attention, is unsafe and unsatisfactory, resulting in a miscarriage of justice;
- The trial magistrate erred in not exercising his discretion to allow the appellant to change, or indeed properly enter, his pleas in relation to charge 2 and 3, resulting in a miscarriage of justice.
Ground 1
- [17]For the first appeal ground, appellant’s arguments relate to:
- The conduct of the trial;
- The conduct of the trial magistrate; and
- That the verdict was generally unsafe or unsatisfactory.
- [18]The appellant relied upon a combination of errors or defects in the trial as giving rise to a miscarriage of justice, even if any ground considered in isolation would not have that result.
Bias & Intimidation
- [19]It is convenient to first deal with the arguments of an apprehension of bias that the trial magistrate was “one sided not with an open mind”,[1] and the oral argument that the appellant felt intimidated as a result of what occurred at the commencement of the hearing.
- [20]The test for determining whether the trial magistrate should have disqualified himself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[2]
- [21]As for the suggestion of intimidation, it is not be unusual for a litigant in person to feel intimidated by the occasion, but that does not necessarily reflect on the magistrate’s conduct. It is often difficult for judicial officers to ensure the integrity of proceedings, which involves a litigant appearing in person. This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction.
- [22]I have considered the transcript of the hearing and decision. I can find absolutely no basis or other reasonable justification for the appellant’s assertions of bias or intimidation, and I reject them.
Unsafe & Unsatisfactory
- [23]The burden rested on the prosecution to prove the guilt of the appellant to the requisite standard, beyond reasonable doubt. In the context of this case, there was no burden on the appellant to establish any fact, let alone his innocence.
- [24]The appellant did not dispute the factual matters of time, date, place, road and the fact that the appellant was driving. The dispute at trial, and on appeal, was whether he drove without due care and attention. In particular, the appellant’s arguments focused on the quality of the circumstantial evidence of the forensic investigations associating road markings with likely scenarios, and the logical and rational connection between the facts found and the trial magistrates deductions or conclusions.
- [25]In his decision, the trial magistrate summarised the evidence of the 4 witnesses (Mr Dalton, Mr Wiltshire, Senior Constable Henderson, and Sergeant Duncan) and set the appellant’s version disclosed in his record of interview.[3] After setting out extracts of the appellant’s record of interview, the trial magistrate summarised the appellant’s version of events as follows:
“So Mr Condon’s evidence is that there was another vehicle coming towards him with its lights on high beam, that it was immediately in from of him, which caused him to swerve, presumably from left-hand lane into the right-hand lane, in an attempt to avoid a collision, all whilst doing 99.9 Kilometres per hour in a prime mover with a trailer, a grader and car being strapped and chained to the back of it. My common sence does tend to indicate to me that there might be some indication on the roadway of such course of action being taken.”
- [26]The trial magistrate’s reasoning was based primarily on the circumstantial evidence of the absence of road markings to discount the appellant’s version. He said:[4]
“So Mr Condon’s evidence is that he swerved to the right to avoid the vehicle and that he hit the brakes pretty well. The difficulty with Mr Condon is that there is no evidence whatsoever of any of that action taking place on the roadway. The evidence, it seems to me, including the angle with which the vehicle left the road, is entirely consistent with Mr Condon’s vehicle simple failing to take the bend at the top of the jump up and running ahead – running straight ahead on off the road on the other side of the roadway. Whether he was aware of that going on, whether he was asleep, which probably what would’ve happened, or whether he – as I say, whether he became aware at some point and took some form of evasive action, I don’t know. But it doesn’t appear from the evidence on the road that any evasive action was taken whatsoever. The evidence is not consistent with Mr Condon’s version of events.”
- [27]In conclusion, the trial magistrate said:[5]
“The fact is, as I have indicated, the evidence from the road surface is such as to be consistent with Mr Condon simply failing to take the corner or the bend at the top of the jump up, and the vehicle travelling straight ahead and over the embankment on the otherwise of the road with there being no explanation for that other than Mr Condon’s explanation which I have rejected. It is clear to me, then, that the Prosecution has established all the elements of the charge, a drive without due care and attention, and for the reasons I have expressed, I find Mr Condon guilty of driving without die care and attention.”
- [28]The trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. The decision in Fox v Percy,[6] affirmed the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.
- [29]A verdict will be unsafe and unsatisfactory, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[7] This necessitates my independent examination of the evidence to make my own assessment of both the sufficiency and quality of the evidence.[8]
- [30]In my respectful opinion, the trial magistrate misdirected himself when he summarised and negatived the appellant’s version,[9] and then succumbed to speculative opinion evidence of the investigator witnesses about what might have happened having regard to the absence of tyre marks on the bitumen road pavement.
- [31]In the record of interview extracted in the decision (pp 6-9), the appellant relevantly said:
“I was heading north. I came around the corner heading north near the drop. I had these bright lights in my eyes, real, bright LED lights in my eyes, so I flashed my high beam, took notice. ….”
“There were three [lanes]…”
“I flashed my high beam. The next thing I know, I looked up and he’s right there in front of me, so I swerved to the right hand side as quickly as I could into the inside lane to get away from him. Then he somehow mirrored me and followed me over there somehow so I went into the – I went into evasive action to try to keep away from him and went out further. The next thing I know, I know, I hit the fog line, white line, guard rails, couldn’t see and was hanging upside down. …”
“He was going in the lane going south. Looked like it from a distance, but when I looked close with my high beam flashing, flashing him – hut when I looked up again at him to see where he was, the next thing I know, he was in my lane, a good 50,100 yards in front. I don’t know. From what I could see, I just swerved, trying to avoid him, to the right –hand lane. I could see him coming over with me. I knew there was another lane there somewhere. I just took it out further so I didn’t hit him. The next think I know, I’m hitting the white line guard raise then handing upside down, hold onto it. …”
“Might’ve been two vehicles. By the amount of light, it looked like only one. It had lights on the roof. I don’t know whether it was a four-wheel drive or a car. Bright lights on the roof, on the bulbar, on the front of it, high beam …”
“Real bright, white one, LED operated ones. …”
“I had all lights in my eyes. I could not see. …”
“I remember hitting the brakes, foot pedal, somewhere there, no point going away. [officer: “How hard did you hit the pedal?”] … Pretty well. I don’t know whether they locked up or not, but I know I hit it pretty well. I realised it was no use. We were going anyway.”
- [32]The impression given by the appellant’s version is that his actions were relatively timely, controlled and defensive. He did not observe his speed at the time, and he did not describe steering erratically when he took evasive action.[10] He did remember hitting the breaks but realised there was “no point, going anyway” … “we were going anyway” which logically suggests he applied the brakes after leaving the bitumen surface, that is after hitting the “fog line, white line, guard rails” (ie the guide posts).
- [33]Taken in its proper context, the evidence of the police officers about yaw and braking marks on the bitumen surface was of little value, if any. Instead, the photographic evidence (Exhibit 2) and Scale Plan (Exhibit 3) that show the marks off the bitumen was entirely consisted with the appellant’s version. The witness, Sergeant Duncan, testified:
“Of particular note, the shoulder between the solid edge line and the actual edge of the road with the bitumen surface, there’s a mark – probably better to come up in image number 68 – that runs just along the edge there. Now, that was marked and measured. I think it was a total distance of about 17 metres. Bit because it didn’t have any distinguishable edge or visible striations, I wasn’t able to make any determination whether that mark was created by steering or braking. And then in image 69, you can faintly see in the image there there’s a tyre mark there. The same again in image 70. Image 71, closer again, it just show the path of the prime mover and semitrailer as it’s leaving the roadway. The same again in image 72. And then the following images 72, show more the – the embankment and the path of the vehicle along the embankment to its final uncontrolled position.”
- [34]The witness Sergeant Duncan put a gloss on the appellant’s scenario which was not borne out by the evidence. He drew inferences about the absence of tyre marks associated with the truck and any oncoming vehicle, and the plausibility of scenarios, entered into the field of mere speculation and that opinion evidence ought to have been rejected.[11] The danger was that such evidence became the focus of the trial magistrate’s consideration and seems to have misled and prevented him from analysing and understanding the whole of the evidence in the proper context.
- [35]In substantially circumstantial cases, such as this:
- There must be a logical and rational connection between the facts found and the trial magistrates deductions or conclusions. However, “guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances”.[12] That is not the case here.
- Since there are competing inferences, one consistent with the appellant’s guilt and another consistent with innocence, the court should only have drawn on the inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt.[13] The road markings could be elevated to such weight.
- Since there was a reasonable hypothesis consistent with innocence, the court’s duty was to acquit.[14]
- [36]The evidence also contained other discrepancies, including, but not limited to:
- The failure by the witnesses to properly investigate the state and behaviour of the ABS of the prime mover; and
- The re-enactment being so different to the prevailing circumstances that it lacked any probative force.
- [37]It must follow that the trial magistrate, acting reasonably, ought to have had a sufficient doubt. It seems to me that the verdict was unreasonable or cannot be supported, such that there was a miscarriage of justice.
- [38]Therefore, I am bound to allow the appeal against the conviction.
Ground 2
- [39]I now deal with the second ground. This ground arose from the trial magistrate’s dismissal of the application made at the commencement of the trial by the appellant to withdraw his plea.
- [40]The appellant says that the trial magistrate erred in making that order. The appellant’s argument on ground 1 is premised on an understanding that he pleaded guilty to the complaint charges 2 and 3.
- [41]The respondent argued that appeal ground was incompetent because the appellant was constrained by his pleas of guilty to appealing only against the severity of the sentence imposed. The argument relied s 222(2)(c) of the Justices Act 1886, which provides that: “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”.
- [42]I do not accept the respondent submission. It seems to me that s 222(2)(c) restricts appeals in circumstances where there a defendant is convicted on his own plea, and there is no appealable error arising from an order affecting that plea. The magistrate’s dismissal of the application was an order as defined in s 4 of the Justices Act 1886. In my view s 222(1) does provides a right to appeal the order made by the magistrate to refusing the application for the appellant to change his pleas.
- [43]In these circumstances three issues arise:
- Firstly, whether the trial magistrate proceeded on the proper basis that the appellant pleaded guilty or admitted the truth of the complaint in respect of charges 2 and 3 trial on 26 May 2014; and
- Secondly, whether the trial magistrate erred in refusing to allow the appellant to change his plea; and
- Thirdly whether there was a miscarriage of justice.
Guilty Plea?
- [44]The trial commenced in the usual way with the trial magistrate arraigning the appellant on each of the three charges, and the defendant pleaded not guilty to each charge.[15] However, unusually, the police prosecutor interjected to inform the court that the defendant had already entered a plea of guilty with respect to charges 2 and 3 on 26 May 2014.
- [45]The application and the decision was premised on a plea of guilty. However, this state of affairs is not borne out by the court record or any supported evidence.
- [46]The matter first came before the court on 28 April 2014, but the appellant failed to appear. It was later mentioned on 26 May 2014 when defendant appeared by telephone. The prosecution asserted that the appellant entered a plea of guilty with respect to charges 2 and 3 on 26 May 2014. The magistrates court endorsement on the bench charge sheets do not evidence any arraignment (when the substance of the complaint was stated to the appellant and the appellant was asked how he pleads) or guilty plea on that day. Instead, the matter was set for mention on 21 July 2014.
- [47]The file endorsement for 21 July 2014 noted the appellant’s appearance in person (using the acronym “DIP”), and the matter was set for further mention on 11 August 2014.
- [48]The file endorsement for 11 August 2014 noted the appellant’s appearance by telephone. The magistrate on that occasion endorsed the file by hand as follows:
(1) Chge 1: Plea NG;
(2) Chg 2 & 3: POG indicated.
- [49]Contrary to the view of the trial magistrate,[16] I interpret the endorsement regarding charges 2 and 3 as a prospective indication of a mere intention to plea rather than a ‘confirmation’ of an earlier plea. In my view, at best, there was a mere indication of a future intention to plead guilty to two charged communicated over the telephone on 11 August 2014. In my view, it is not probative of a plea of guilty on 26 May 2014 (or an admission of truth of a complaint on that date) as found by the trial magistrate.
- [50]The trial magistrate found that “On the 26th of May, the defendant acknowledges that pleas of guilty were entered in respect of charges 2 and 3” and the later “confirmation of a plea of guilty on 11th August …. two or three weeks after the full brief of evidence itself had been mailed.”
- [51]Unfortunately, the trial magistrate did not have the benefit of any transcript of his exchange with the defendant at the commencement of the trial, and no evidence was adduced to prove any of the matters relied upon. On my examination the transcript, it is clear that the appellant’s answers were vague. He was never asked about his knowledge of the complaints, or his understanding of a plea of guilty. The appellant did not say when or how he entered that plea,[17] save that he said the brief of evidence was received “after all that” and disavowed having received never identified his understanding of vague acknowledgment of having entered a guilty plea to charges 2 and 3.
- [52]That is not enough to evidence a plea of guilty being made on 26 May 2014.
- [53]My conclusion is consistent with the dearth of evidence of any arraignment or entry of a plea on this or any other mention. There is no other record of the proceeding to that effect. It would have been difficult enough to be properly engaged in such a critical step over a telephone, but that mode of hearing, and resultant plea, would have required greater vigilance of ensuring a accurate record of the proceeding in compliance with ss 145(1) and (2) of the Justices Act 1886.
- [54]Section 145 provides:
“145 Defendant to be asked to plead
- (1)When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.
- (2)If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.”
- [55]There is no evidence that the substance of the complaint was stated to the appellant, or that he was asked how he pleaded, or that he voiced his pleas of guilty in accordance with sub-section 145(1). There is also no record of an order being made on charges 2 and 3 in accordance with subsection 145(2). On the contrary, the standard ink stamp that followed the handwritten endorsement was to the effect that the appellant was remanded to appear on 17 October 2014 for “HEARING”, not committed for sentence.
- [56]Therefore, I conclude that the appellant never entered a plea of not guilty to charges 2 and 3.
Refusal of Application
- [57]The relevant principles and authorities relevant to an application to change a plea of guilty have been conveniently gathered and summarised by Farr SC DCJ in Denning & Garden v The Queen [2013] QDC 185 at [26] – [39]. I will not set them out again here, suffice it to say that the appellant would need to demonstrate a miscarriage of justice before this court should exercise its discretion to set aside a plea of guilty.
- [58]The appellant based his application upon some mistaken belief of the nature and effect of the charges. He explained that: “Till I seen a video evidence, you Honour. When I found video evidence, that’s changed my not plea. Once I saw the video, you Honour, it just changed the whole story.”[18] He elaborated upon this saying: “…I saw it – once I saw that video, once iit got sent to me after pleas, it changed the whole lot of story. Because I think that video just – yeah, given that up when I plead guilty for something.” He also disavowed guilt for having any drugs unlawful in his body and for possessing the utensil later identified in the brief of evidence.
- [59]The trial magistrate did not address these matters in his reasons, but instead, focused on the erroneous premise of a plea and the timing of the “QP9” and brief of evidence.[19]
- [60]After setting out some cases, the trial magistrate concluded that: “After considering the submissions form both the applicant, Mr Condon, and the prosecutor Sgt Markham, I am not satisfied that to proceed on a plea of guilty in respect of those matters would result in a miscarriage of justice. It seems to me that the plea of guilty entered on 26th of May in respect of those offences was entered voluntarily, and with knowledge of the facts surrounding those two charges. Therefore, the application to withdraw the plea of guilty is refused, and I do in fact record pleas of guilty in respect of those two charges.”
Conclusion
- [61]There was no factual basis or proof of evidence that supported a finding that any pleas of guilty was entered on 26 May 2014, nor that the purported pleas were “voluntary”, nor that they were made “with the knowledge of the facts surrounding those two charges”.
- [62]In my respectful view, the trial magistrate erred by mistaking the facts, acted without evidence, and allowed erroneous or irrelevant matters to guide or affect him. I am not satisfied that the appellant effectively pleaded guilty. Consequently, the application, conviction and sentence proceeding for charges 2 and 3 was fundamentally flawed, and there has been a miscarriage of justice.
- [63]The order refusing the application to set aside a guilty plea, and the convictions and sentences, for charges 2 and 3 are set aside. I will direct that pleas of not guilty be entered in respect of charges 2 and 3.
- [64]This enlivens my consideration of whether the matter should be returned to the Magistrates Court for retrial on charges 2 and 3 if the prosecuting authorities deem it appropriate.
- [65]Once the circumstances of charge 1 are removed from the mix, the appellant would be facing a reduced sentencing range in the event of a conviction for charges 2 and 3.
- [66]The trial magistrate imposed a sentence of two years probation in respect of all charges, and for charge 2 he imposed 6 months disqualification from holding or obtaining a driver’s license for six pursuant to s 187 Penalties and Sentences Act.
- [67]The appellant was born on 6 June 1978 and was 35 at the time of the offences and is now 36. The appellant has an appalling traffic history, and a criminal history mainly with violence offences. There is no relevant history of drug offences.
- [68]The plaintiff suffered multiple trauma injuries in the accident. Police and emergency services arrived at the accident scene about 6:00 am on 11 October 2013. They found the appellant trapped alone in the wreckage. The appellant was extricated form the wreckage by the emergency services team just after 9:00 am. The plaintiff transferred to the Cairns Hospital by ambulance helicopter. He was triaged at the Cairns Hospital at 10:25 am on 11 October 2013. The appellant’s injuries, included multiple full and partial thickness burns; debridement of his right arm, hop and sacrum; bleeding from ears; a haematoma; fracture of the right upper sternum at the level of the manubriosternal joint; injury to the left first and second rib; fracture of the right seventh rib; rhabdomyolysis; and bibasal atelectasis.[20] His physical and health will be marred for the rest of his life.
- [69]The appellant is now pensioner and probably commercially unemployable as a consequence of his injuries and health.
- [70]The nature and seriousness of his offending in charges 2 and 3 is at the lower end of the range of offending of that type. The state and use of the utensil or pipe used is unclear. An analysis of the appellant’s blood specimen collected at the Cairns Hospital at 12 pm on 11 October 2013 showed, amongst other things, the presence of methylamphetamine 0.14 mg/kg and Delta-9-tetrahydrocannabinol 0.007 mg/kg. It was a low level reading. Indeed, it was accepted that the concentration of drugs identified in the toxicology report did not adversely affect his driving or contribute to the accident.
- [71]Any sentence imposed ought be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the accused’s conduct in this offence and to protect the community.
- [72]If the convictions on charges 2 and 3 remained, it seems to me that an appropriate sentence would be in the order of:
- For charges 2 and 3 - probation for 3 months;
- For charge 3 - disqualified for 1 month.
- [73]The appellant has served part of his probation, and has been disqualified from driving for 2 months since his conviction, pending this appeal. If I return the matter to the Magistrates Court for a rehearing for charges 2 and 3, the outcome may be futile since the appellant would have already served any likely penalty. The appropriate and just course may be not to further proceed. These are matters, of course, for the prosecuting authorities in deciding whether to proceed with the matter or discontinue the proceeding.
- [74]In the meantime I will remit the matter to the Magistrates Court for rehearing, if the prosecuting authorities decide that continuing the proceeding is appropriate. Any rehearing should heard by a different magistrate and I will order the remittal to Cairns to facilitate that course.
Order
- [75]For these reasons my orders are:
- Appeal allowed.
- The order refusing the application to set aside guilty pleas for charge 2 of driving a motor vehicle while a relevant drug is present in blood or saliva, and charge 3 possession of utensils or pipes etc that had been used, is set aside.
- I direct that pleas of not guilty be entered in respect of charges 2 and 3.
- The convictions imposed in the Magistrates Court at Mareeba on 17 October 2014 for charge 1 of driving without due care and attention, and for charges 2 and 3, are set aside.
- The proceeding in respect of charges 2 and 3 is remitted to the Magistrates Court Cairns Registry for rehearing before a different magistrate in due course.
Judge Dean P. Morzone QC
District Court of Queensland
Footnotes
[1] Notice of Appeal – First sentence of grounds of appeal.
[2] Johnson v Johnson (2000) 201 CLR 488 at [11]
[3] Decision pp. 5-9
[4] Decision p9
[5] Decision p10
[6]Fox v Percy (2003) 214 CLR 118 at 127 [25] per Gleeson CJ, Gummow J and Kirby J.
[7]Whitehorn v R (1983) 152 CLR 657 at 687
[8]Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J
[9] Cf. E (1995) 89 A Crim R 325 at 330 per Hunt CJ
[10] Contrast T1.30/15-21
[11]Straker v R (1977) ALR 103
[12]Shepherd (1990) 170 CLR 573 at 578
[13] cf R v Wedd (2000) 115 A Crim R 205, 214
[14]Perera [1986] 1 Qd R 211 at 217; Owen (1991) 56 SASR 397 at 406
[15] T1.2-3
[16] Decision, P 2/30
[17] T1.8/5-10
[18] T1.3/10-15
[19] Decision, P. /20-32
[20] Appellant’s medical records from Cairns Hospital.