Isenglaas v Commissioner of Police
[2014] QDC 6
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- Isenglaas v Commissioner of Police[2014] QDC 6
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Isenglaas v Commissioner of Police[2014] QDC 6
Isenglaas v Commissioner of Police[2014] QDC 6
DISTRICT COURT OF QUEENSLAND
CITATION: | Isenglaas v Commissioner of Police [2014] QDC 6 |
PARTIES: | BO DING ISENGLAAS v COMMISSIONER OF POLICE |
FILE NO/S: | 1149/13 |
DIVISION: | Civil |
PROCEEDING: | Appeal under s 222 |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 30 January 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 November 2013 |
JUDGE: | Butler SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – APPEAL AGAINST DECISION OF A MAGISTRATE – where defendant convicted and sentenced for speeding – where complaint particulars were incorrect – where there was incorrect offence date – where appellant alleged he was not provided with correct brief of evidence – where appellant’s application for adjournment was denied. |
COUNSEL: | No appearance by or on behalf of appellant. B. J. Jackson for the respondent. |
SOLICITORS: | No appearance by or on behalf of appellant. Director of Public Prosecutions for the respondent. |
- [1]This is an appeal brought under s 222 of the Justices Act 1886 (Qld) against an order made on 22 March 2013 convicting the appellant of speeding.
- [2]The Magistrate, acting pursuant to s 142A of the Justices Act, convicted and sentenced the appellant in his absence.
- [3]It is not immediately apparent from the grounds what order the appeal is directed against. It must be assumed that it at least is directed at the conviction entered by the Magistrate. The grounds of appeal read as follow:
“1. The prosecution case file contains factual errors. The Magistrate ignored these errors and decided to run the case in spite of the errors. I thought the foundation of justice is truth and facts. Obviously this does not hold true with Brisbane Magistrate Court.
- In particular, the Magistrate ignored s 590A1 of the Criminal Code that states the brief of evidence must be disclosed 14 days before the hearing. In my matter wrong witness statements were provided and when the right ones were discovered on the day of the hearing, the Magistrate expected me to proceed with the hearing knowing I had not had the correct time to study the documents, get legal and expert opinion on them and mount a suitable defence.”
- [4]The appellant submitted an outline of argument which enlarges on the grounds of appeal. The submissions read as follows:
“1. All traffic matters are proceeded under Quasi-Criminal in Queensland magistrate court and as such, fall under s 590A1 of the Criminal Code in relation to disclosure. That states clearly all evidence to be used against the defendant must be disclosed a full 14 days before the hearing date.
In my matter the prosecution provided wrong evidence [witness statements from another case] and when I brought this to the magistrate’s attention and asked for an adjournment, she asked me to go outside and look at the ‘right’ evidence and then come back in and proceed with the hearing. I submit this disadvantaged me severely as I was not given the opportunity to correctly study the new evidence, get legal and expert opinion on it and then mount a suitable defence.
- I submit that incorrect dates for this incident were emplaced on the summons document and this was ignored by her Honour as well. I submit the summons is a formal document that must be correct in all aspects and this also showed her Honour’s eagerness to ‘rubber stamp’ the matter.”
- [5]The defendant submitted in his written outline of argument that as the Magistrate acted incorrectly the appeal should be allowed and returned to the Magistrates Court to be heard by a different magistrate.
Hearing before the Magistrate’s court
- [6]Because the matter proceeded under s 142A of the Justices Act there was no trial and therefore only very limited information was placed before the Magistrate for the purpose of determining that a conviction should be entered. This was in accord with the provisions of s 142A. Sub-section 4 of that section provides that if the defendant does not appear at a time and place fixed for the hearing of the complaint then:
“The court before which the complainant comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and as effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint.”
- [7]The section also provides that the court may take into account any information, considered by it to be relevant, brought to its notice by the complainant or defendant in relation to the circumstances of the matter of the complaint and the imposition of penalty.
- [8]The learned Magistrate had a complaint before her which alleged that on 13th day of February 2012 the defendant was the driver of a motor vehicle detected by police exceeding the speed limit in a school zone. The complaint particularised location and the time and the speed the defendant was alleged to have been travelling at. In addition to the complaint the police prosecutor placed the following information before the Magistrate:
“About 2.46 pm on 13 February 2012, your Honour, the defendant was detected driving a Hyundai Hatch in the South Pine Road, Enoggera. Your Honour, he was at that time travelling in that vehicle at 56 kilometres an hour in a 40 zone in a school zone. …”
- [9]In Guy v McLoughlin & Anor[1]the principles applying in an appeal against an exercise of jurisdiction under s 142A were considered by McGill DCJ. His Honour concluded that such an appeal does not entitle the appellant to raise any matter not raised before the Magistrate, which ought not to have been apparent to the Magistrate at the time of the hearing.[2] Furthermore, his Honour observed that sub-section (12) of s 142A provides a statutory procedure for the holding of a re-hearing in the Magistrates Court. No application for a re-hearing was made in this case by Mr Isenglaas. McGill DCJ went on to hold as follows:
“In my opinion in the absence of an application under sub-section (12) for a rehearing, it is not open by an appeal under s 222 against a conviction pursuant to s 142A to raise issues which were not raised before the Magistrate as to whether the appellant was really guilty of the offences charged.”[3]
- [10]On the other hand there are limited grounds upon which an appeal under s 222 may be successfully brought. Two examples given by McGill DCJ were that the complainant did not disclose an offence known to law or that the requirements of the section had not been complied with.
- [11]There are two grounds that emerge from the plaintiff’s appeal in this case.
- [12]The first ground is the plaintiff was convicted of an offence other than in accordance with the true facts. Namely, that the complaint alleged the offence was committed on 13 February 2012 when in fact the plaintiff was apprehended by the police on 15 February 2012. This variation in the date of offence was referred to but not particularised in the plaintiff’s notice of appeal and outline of submissions. The details became apparent from information placed before the court by the prosecution on the appeal.
- [13]The second ground is the appellant was denied a fair trial because the Magistrate refused his application for an adjournment.
Factual background
- [14]The charge against the appellant of disobeying the speed limit was commenced by way of complaint and summons dated 14 August 2012. The summons was returnable before the Magistrate’s Court at Brisbane on 18 September 2012. When the matter came before the court it was adjourned to a hearing date of 24 January 2013. On that date the appellant sought an adjournment to produce evidence that the reading on the speed detection device was not evidence of the speed he was travelling. Under the relevant legislation it was necessary for the plaintiff to give notice to the prosecution of such a challenge 14 days prior to the date of hearing. The Magistrate refused the application for an adjournment and intended the matter proceed on that day. Due to the unavailability of a judicial officer the matter was not reached and was further adjourned for hearing to 22 March 2013. In making that adjournment the Magistrate advised the defendant that he would now have the opportunity to prepare and give the necessary notice of challenge to the evidence of the speed reading.
- [15]On the morning of 22 March 2013 the appellant appeared before another magistrate. The appellant complained that the prosecution brief of evidence which he had with him that day was for a different case. Arrangements were immediately made for a copy of the correct brief to be provided to him and that occurred. The matter could not immediately proceed and the parties were asked to await the allocation of a magistrate.
- [16]Later in the morning the matter was mentioned again before the call-over magistrate. The defendant at that time indicated that he had been given the correct copies of the statements and had been in possession of them for about two hours. He made a submission that he was at a disadvantage due to having the incorrect brief and that he wished to give a notice of challenge prior to hearing. The Magistrate noted that a similar application for an adjournment to give notice had been considered and refused by another magistrate on 24 January 2013 and ruled that the trial in the matter would proceed that day. The defendant was told to be available for when the matter was called on for hearing later that day.
- [17]In the course of the defendant’s interactions with the Magistrate that day he mentioned a discrepancy in the date shown on the infringement notice. The Magistrate acknowledged that might be an issue for determination at the hearing but prosecutor does not seem to have given any attention to that point.
- [18]Later on 22 March 2013 her Honour was advised that Mr Isenglass had left the court house, having told a police office he had other matters he wished to attend to.
- [19]The learned Magistrate then determined to deal with the matter in the absence of the defendant. The appellant was convicted, the conviction was recorded and a fine of $200.00 was imposed.
The appeal process
- [20]When this appeal came on for hearing, there was no appearance by Mr Isenglaas who had advised the Registrar that he did not wish to attend. The appeal was heard in his absence.
- [21]Counsel appearing for the respondent Commissioner of Police sought leave to adduce additional evidence.
- [22]Special grounds must be shown for leave to be given to receive such evidence. Section 223 provides:
- “(2)However, the District Court may give leave to adduce fresh additional substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is–
(a) by way of rehearing on the original evidence; and
(b) on the new evidence adduced.”
- [23]The fresh evidence sought to be adduced established that the date on the complaint and summons was in error as the true date of the alleged offence was 15 February 2012. As the fact of this discrepancy was not apparent from other material before the court admission of that evidence was in the interest of the appellant.
- [24]The evidence was sought to be adduced from two investigating officers and the Police Prosecutor who appeared on the day of the hearing. They attested to circumstances relating to the plaintiff’s claim not to have received the correct brief and the circumstances in which he left the courthouse on that day.
- [25]In my view special grounds existed for giving leave to receive the three statements and I admitted that evidence. The statements provided evidence relevant to issues raised in the defendant’s two grounds of appeal. They were issues that did not go to the substantive matter of whether he committed the offence and the court would have been left with no information to adjudicate upon the issues raised by the grounds of appeal in the absence of that evidence.
Appeal under s 222
- [26]Section 223 of the Justices Act provides that an appeal under s 222 is by way of rehearing on the evidence, both original and fresh. Such an appeal is to be distinguished from an appeal de novo.
- [27]The authorities have made it clear that on an appeal by way of rehearing in accordance with s 223 a Judge is required to conduct a real review of the evidence drawing his or her own inferences and conclusions, while giving due respect to the decision of the Magistrate and bearing in mind any advantage the Magistrate may have had in seeing and hearing the witnesses give evidence.[4] This approach is in accord with the decision of the High Court in Fox v Percy:
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.”[5]
- [28]In the circumstances of this case where no evidence was called before the Magistrate the appeal court is in as good a position as the judicial officer below to consider the issues. Indeed with the addition of the fresh evidence this court is really in a better position than the Magistrate was. In accordance with the authorities I have reviewed the record and the new evidence adduced before me and have reached my own conclusions on the material.
First ground of appeal: discrepancy in date of offence
- [29]The defendant’s first ground argues that he was wrongly convicted of the offence because the charge alleged the driving behaviour occurred on 13 February 2012. The new evidence adduced in the affidavits of the investigating officers establishes that he was intercepted on 15 February 2012. It follows that the complaint alleges commission of the offence on a date other than the date when the driving behaviour occurred.
- [30]It does not necessarily follow that because the complaint referred to an incorrect date of offence that the conviction of the appellant on the offence charged should be set aside. The complaint adequately particularised the nature of the offence and the occasion being referred to would have been clear to the appellant notwithstanding that the date charged was incorrect. Furthermore, the date of commission of an offence is not necessarily an essential element of the offence.[6] In R v Dossi the English Court of Criminal Appeal held:
“From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. ‘And althouth the day be alleged, yet if the jury finds him guilty on another day the verdict is good, but then in the verdict it is good to set down what day it was done in respect of the relation of the felony; and the same law as in the case of an indictment’ … thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.”[7]
- [31]The date of the offence was not an essential element of the offence in this case. Therefore an incorrect date in the charge was no impediment to the defendant being convicted of the offence.
- [32]Under s 225 of the Justices Act a Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just. Although I am of the view that the error in the date charged did not invalidate the conviction, because I am now aware of that inaccuracy, it would seem appropriate should there be power, that I set aside the conviction, amend the complaint to substitute the correct date and proceed on the amended complaint to convict and sentence afresh.
- [33]That raises the question of whether I may make such an amendment, having regard to the fact that the one year limitation period for bringing of this prosecution has lapsed. In Hays v Wilson; ex parte Hayes the Full Court held that s 48 of the Justices Act authorised a magistrate to amend a complaint after the expiry of the limitation period where the fresh offence charged was of a “cognate or like nature” and was not “essentially different from” the offence originally charged.[8] The section did not authorise substitution of a completely new charge.
- [34]In reliance upon R v Dossi (cited above) I am satisfied that amendment of the complaint by substitution of a new date does not involve the bringing of a completely new charge to that originally charged.
- [35]On the authority of Hayes v Wilson; ex parte Hayes and in exercise of the powers available to me under s 225(1) of the Justices Act I will amend the complaint by substituting the correct date, enter a conviction on the amended complaint and proceed to sentence afresh. The appellant’s first ground of appeal succeeds only to that extent.
- [36]In the circumstance that the grounds of appeal did not dispute the quantum of the sentence imposed and noting that the Magistrate chose to impose a fine at the ticketable amount, I consider it appropriate to impose a fine of $200 and order payment of costs of court in the sum of $74.35.
Second ground of appeal: adjournment
- [37]The appellant’s ground of appeal raises unfairness on his trial by virtue of the Magistrate having refused him an adjournment to prepare.
- [38]The prosecution submit firstly that Mr Isenglaas had at an earlier time received the full brief of evidence in this matter. The investigating officers attest in their affidavits to the preparation of the brief for delivery to the defendant and to attended at a previous mention of the matter on 4 December 2012 and having seen Mr Isenglaas reading from a brief of evidence, the front page of which was the brief for this proceeding.
- [39]Both officers also provided evidence that on 22 March 2013 they saw that Mr Isenglaas had in his possession outside the court a copy of a brief of evidence for a different matter to this one. This latter brief related not to a speeding charge but rather a seat belt infringement. The affidavit of the police prosecutor Trevor Lyndsay Perry who appeared on 22 March 2013 states that while he and the appellant were waiting for the matter to come on for hearing there was a conversation with the appellant during which he asked what would happen if he just left. He was told that the matter would probably be dealt with in his absence and it is alleged he replied “that won’t matter, I’m going to appeal it anyway”. It was after this that the police officer said that he became aware that Mr Isenglaas had left the court building.
- [40]It was submitted by the prosecution that although Mr Isenglaas had a different brief in his possession on 22 March 2013, he had at an earlier time received the correct brief and had it in his possession at the court on 4 December 2012. It was further submitted that even should that not be accepted the plaintiff had ample time to consider the prosecution statements after fresh copies were supplied to him on the morning of 22 March 2013. It was submitted that the matter was not complex and the appellant had ample notice as to the nature of the offence charged.
- [41]Notwithstanding the affidavit evidence, in my opinion there remains some doubt as to whether the plaintiff had the correct brief in his possession on 4 December 2012. The police officers did not see the full brief and only describe what they saw of the cover page. They were not subjected to cross-examination and in the circumstances I am reluctant to act upon that evidence.
- [42]Nevertheless, I am satisfied on the material that the plaintiff received a copy of the correct brief on the morning of 22 March 2013 and that he had at least two and possibly three hours in which to familiarise himself with the evidence to be given. This is not a complex matter and in my view late access to the brief did not give rise to a miscarriage of justice.
- [43]In stating his ground of appeal the appellant argued that there was an obligation upon the prosecution to serve him with the brief 14 days in advance of the hearing. It is clear that the appellant was seeking to rely upon s 590AI of the Criminal Code which provides for mandatory disclosure by the prosecution to an accused person of certain material. Sub-section 2 of the section reads as follows:
“2. The prosecution must give the accused person the written notice or copy –
- (a)For a committal proceeding or prescribed summary trial – at least 14 days before the date set by the court for the commencement of the hearing of evidence;
…”
- [44]That provision has no application to the present proceedings for a traffic offence. This was neither a committal proceeding nor a prescribed summary trial within the meaning of sub-section (2) of s 590AI. There was no statutory obligation upon the prosecution under that provision or any other to provide a brief to the appellant. Failure to provide the brief in advance of the hearing may raise issues of fairness but provision of the brief was not required by statute.
- [45]The appellant said he required an adjournment to give the necessary notice in order to adduce evidence challenging the prosecution’s speed device. It was not necessary for the defendant to have access to the full brief in order to give such a notice. The information available to him from the complaint would have sufficiently alerted him to the nature of the offence. It is apparent from the transcript of proceedings before the Magistrate on 24 January 2013 that the appellant was aware of the nature of the speed detecting device that had been used in his matter. He told the court on an earlier occasion he wanted to adduce video evidence to establish digital readings from an LCD screen on the device were mere inferences and not direct evidence. There was an ample opportunity in the period before 22 March 2013 for the defendant to obtain that evidence if he wished to lead it and to serve notification on the prosecution.
- [46]Accordingly on an assessment of all the material before me I am not satisfied that the Magistrate’s requirement that the hearing proceed on 22 March 2013 operated unfairly against the appellant so as to constitute a miscarriage of justice.
- [47]The plaintiff has failed to succeed on the second ground of appeal.
Orders
- [48]Accordingly, the orders of the court will be:
- The appeal on ground one is successful to the extent that the conviction and sentence are set aside, the complaint amended and a fresh conviction and sentence substituted.
- The complaint is amended by deleting the date “13 February 2012” and substituting “15 February 2012”.
- A conviction is entered on the charge as amended and the conviction is recorded.
- The defendant is fined $200 and costs of court in the sum of $74.35 are ordered. The fine and costs of court are to be paid within 2 months, in default 3 days imprisonment.
- The appeal on ground two is dismissed.
Footnotes
[1] [2006] QDC 017
[2] [2006] QDC 017 at [10]
[3] [2006] QDC 017 at [11]
[4]Rowe v Kemper [2008] QCA 175 at [3]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7].
[5]Fox v Percy (2003) 214 CLR 118 at 126 (internal references omitted).
[6]Ayles v R (2008) 232 CLR 410 at [76], citing R v Dossi (1918) 13 Cr App R 158 at 159–160.
[7]R v Dossi (1918) 13 Cr App R 158 at 159–160.
[8]Hayes v Wilson; ex parte Hayes (1984) 2 Qd R 114; followed in Mbuzi v Torcetti [2008] QCA 231.