Exit Distraction Free Reading Mode
- Unreported Judgment
Or v Queensland Police Service QDC 122
DISTRICT COURT OF QUEENSLAND
Or v Queensland Police Service  QDC 122
KA WA KARL OR
QUEENSLAND POLICE SERVICE
APPEAL NO: 186 of 2014
Magistrates Court, Cairns
2 April 2015 ex tempore
2 April 2015
Morzone QC DCJ
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – conviction – disobeying the speed limit – mode of hearing of appeal – rehearing or reopening pursuant to sections 142(6), 142A(12) and/or 147A of the Justices Act 1886 – insufficient notice of rehearing – fresh evidence – change of plea.
Justices Act 1886 (Qld) s 142(6), s 142A(12), s 147A, s 142(7)(b), 142A(12A)(b), s 222, s 223(1)
Meissner v The Queen (1994-95) 184 CLR 132
Maxwell v The Queen (1996) 184 CLR 501
The appellant appeared for himself
G. Webber for the Respondent
The Office of the Director of Public Prosecutions for the respondent
- On the 16th of June 2014, the appellant was convicted after an ex parte hearing in his absence for the offence of disobeying the speed limit and he was fined $220 and ordered to pay costs of court of $87.20.
- Subsequent to that ex parte determination, the appellant filed an application for rehearing or reopening on the 30th of July 2014. That application was set for determination on the 8th of August 2014 and was disposed of on that day in the absence of the defendant, who did not appear. The application was refused by the magistrate who endorsed his reasons on the file as “Application to reopen is dismissed.”
- The appellant now appeals against the determination of the application of the 8th of August 2014.
- Both parties have provided outlines of argument and made further submissions on the hearing of the appeal, which I have considered. The appellant has, throughout the Magistrates Court proceeding and on this appeal, appeared self-represented.
- The appellant was issued a traffic infringement notice for an offence of exceeding the speed limit by at least 13 kilometres per hour, not more than 20 kilometres per hour, on the 20th of January 2014 on the Bruce Highway at Woree.
- The circumstances of the offence arise this way: on the 24th of January 2014, police using a handheld speed detection device to patrol the Bruce Highway in Woree, detected the appellant travelling at 74 kilometres an hour at 1.20pm. The infringement and the proceedings have proceeded on the basis that the speed zone subject of the offence or offending was marked 60 kilometres an hour. It is that aspect of the offending which is disputed by the appellant and lies at the heart of the application to reopen the case.
- On the 5th of June 2014, the appellant filed a notice of intention to plead which, after setting out the identifying features of the charge, contains the pro forma words:
“I plead guilty to the charge laid down in the summons, and request that it be dealt with in my absence, as I will be unable to attend the court on the day mentioned.
I desire that the following submission be brought to the attention of the Justices with a view to mitigation of penalty:”
- The appellant then, in his handwriting, set out the submission as follows:
“Sorry. I wasn’t familiar with the newly constructed section of Bruce Highway (sic), Woree and thought the highway is 80km/h zone. I should keep attention on the speed sign and any roadwork sign.
The Mitsubishi Colt was a new car that I bought lately and wasn’t realise (sic) it will easily pick up speed with small push on the throttle.”
- Acting upon the indication of the plea of guilty, the magistrate dealt with the matter ex parte on the 16th of June 2014 and convicted the appellant of the offence on his own plea. The magistrate imposed a fine of $220 and ordered the appellant to pay costs of filing the summons of $87.20. The total amount was referred to the State Penalties Enforcement Registry for enforcement.
- On the 30th of July 2014, the appellant filed an application for rehearing or reopening pursuant to sections 142 (6), 142A (12) and/or 147A of the Justices Act 1886 (as applicable). The grounds relied upon in the application were that: “There are no signs to indicate that it is a 60 zone”. The application was supported by an affidavit of the appellant where he deposed that “there is no speed sign indicating the above section as a 60 kilometre/hour zone, only a 80 km/h sign”.
- As a consequence of receiving the application, the matter was set for rehearing before the Magistrates Court at 9 am on the 8th of August 2014. A notice of rehearing when complaint has been heard and determined in the absence of defendant, was generated by the registry, including the description of the complaint; a place, date and time of rehearing; and a notification as follows:-
You are notified that:
- (1)The conviction or order made at the first hearing has ceased to have effect;
- (2)On the rehearing, a court shall have and may exercise all the powers and procedures that it had in the case of the original hearing;
- (3)If you do not appear at the time and place for a rehearing, the court may, if it thinks fit, without rehearing the case, direct that the original conviction or order be restored whereupon it shall be restored to have effect accordingly and shall be deemed to be of effect on and from the date it was first pronounced.
- The notice of rehearing was dated the 4th of August 2014 and directed to the defendant at a post office box address.
- On the 8th of August 2014, being the date set for rehearing, the appellant failed to appear and the matter was determined ex parte in his absence. The magistrate’s endorsement on the court file, notes an appearance for prosecution and no appearance for the defendant, and states:
Application to reopen is dismissed.
- That endorsement was signed by the magistrate.
- On the 11th of August 2014, the appellant filed a further application for rehearing or reopening, on the grounds that:
There are no signs indicate (sic) the 60km/h zone on Bruce Highway, Woree, section. As well as, I didn’t receive the notice for rehearing until 11/8/2014.
- Those grounds were deposed to in a supporting affidavit of the appellant filed the same date. The file was then endorsed under the magistrate’s own hand, signed and dated 12 August 2014:
The application to reopen has been heard and determined – refused – as he pleaded guilty!
- On a date unknown, the clerk of the court wrote to the appellant referring to his application for rehearing lodged with the court. The document advises the appellant that the application was refused for the reason:
The application to reopen has been heard an determined – refused – pleaded guilty.
- That letter does not identify the application for rehearing to which it relates; that is, 30th of July 2014 or 11th of August 2014. It also does not identify the date of the rehearing and its refusal.
- On the 18th of August 2014, the appellant made a further application for rehearing or reopening by filing the appropriate form again. The grounds of that application were stated as follows:
Cairns Courthouse have not provided sufficient notice regard the rehearing.
Feel in-justice (sic) because I cannot represent myself during hearing.
No 60 speed sign on Bruce Highway, Woree section.
- That application was met with a further letter from the registrar of the court, dated the 19th of August 2014. Unlike its predecessor, the letter refers to the application filed on the 18th of August 2014. It also advised that the application had been declined by the same Magistrate for the reason that, “No further applications”. The endorsement on the file provided slightly different reasons, being, “Return to registry – no further applications”.
- Shortly after this the appellant filed the notice of appeal to this Court on the 21st of August 2014. The grounds of appeal are described as follows:
“Innocent and not being able to appear on rehearing day to speak for myself.
I have travelled the Bruce Highway, Woree section multiple times and found no 60 km/h zone sign to indicate it as a 60 zone, I can only clearly see the 80 zone sign. There is no 60 km/h speed sign indicating the Woree section of Bruce Highway being 60 km/h. I tried to request information from Department of Transport with no response.
The Magistrate (sic) Court has granted a rehearing day on 8 August 2014 9 am, but without giving sufficient notice for me to attend the rehearing. I only received the letter on Monday 11 August 2014, which the rehearing was scheduled the week before on Friday 8 August 2014. I believe the Magistrate (sic) Court, Cairns, have given an unreasonable short notice period which I can’t even receive my letter prior to the Court rehearing day. And when I apply for another rehearing, Magistrate (sic) Court simply declined without given reason and suggested me to appeal this case to the District Court.”
- Not resting with the appeal preceding the appellant again applied for a rehearing or reopening to the Magistrates Court by filing a further application on the 27th of October 2014. The grounds of that application are stated as follows:
“There is no visible 60 km/h speed sign indicating the Bruce Highway Woree section as 60 km/h zone. After contacting Department of Transport, they cannot confirm any details regarding this. To my best ability I cannot find any evidence to show case that is a 60 zone. Therefore I am appealing the enforcement of my ticket in this matter.”
- The application was supported by an affidavit.
- In response by letter from the clerk of the Court of 31st of October 2014, the appellant was advised that the “presiding magistrate” has noted the record as follows: “return to registry – no further applications”, being a reference to the earlier determination and direction of the Magistrate of the 18th of August 2014.
Mode of Appeal
- 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 proceeding before the trial Magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider, as if presented for the first time the arguments advanced.
- Relevantly here section 222 subsection (2)(c) limits the mode of appeal for a defendant who pleads guilty or admits the truth of a complaint. In those circumstances an appellant may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate
- Special grounds are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal: section 223(2) Justices Act 1886 (Qld). The discretion will generally be invoked where the new evidence: -
- (1)Could not have been obtained with reasonable diligence for use at the hearing;
- (2)Would probably have an important influence on the result of the case, even though not be decisive; and
- (3)May be apparently critical, though not incontrovertible.
- Quite apart from the Court record, which I have described above, the appellant seeks to rely upon fresh evidence, being email correspondence with Queensland Transport in response to his enquiry about the applicable speed zone for the relevant section of the Bruce Highway at Woree at the date of the offence, being 24 January 2014. The email correspondence is contained in an affidavit of the 9th of February 2015, and at this hearing the appellant tendered further corroborative email correspondence apparently from Queensland Transport.
- Exhibit A to the affidavit of the appellant filed the 19th of February 2015 contains a communication apparently from Richard Evans, Principle Engineer (Civil) Far North Queensland District Program Delivery and Operations, Department of Transport and Main Roads. He says:
“I have been advised that our construction project traffic records show that no traffic control (speed restrictions) were in place on the Bruce Highway for inbound traffic on the 24/01/14 at your described location. The posted speed at the location described is 80 km/hr and would have been so at the time of the infringement on 24/01/14.”
- This advice is corroborated by the email correspondence tendered at the hearing. That correspondence is from another individual – sorry, that correspondence is attributed to another individual, namely Peter McNamara, Principal Engineer (Civil) Far-North District/Cairns office, Program Delivery and Operations, Department of Transport and Main Roads. In that email, it is said:
“I have checked with one of the project engineers for the Bruce Highway Upgrade Project. The Department of Transport and Main Roads has no record of any speed reduction occurring at the above site due to constructions works on the 24/1/2014. The posted speed in the area is 80 km/hr.”
- On the face of the email correspondence, there can be no doubt that it probably would have an important influence on the result of the case, even though not decisive or strictly proof of evidence. It does seem to me to be apparently credible, though perhaps not incontrovertible.
- Having regard to the plight of the appellant and the nature of the email correspondence, I have no doubt that it could not have been obtained with reasonable diligence for use at the hearing below. For these reasons, I will grant leave to the appellant to adduce the fresh evidence.
Grounds of Appeal
- The appellant appeals against the decision made on the 8th of August 2014, being the refusal of the application for rehearing or reopening.
- I have set out the grounds of appeal verbatim above. However, in the context of the previous indication of a plea of guilty, the subsequent ex parte hearing of the summary charges and the attempt to reopen those proceedings, it seems to me that the main ground of appeal relates to the appellant’s desire to change his plea of guilty to put him in the position to contest the complaint and summons at a later rehearing.
- It is with some regret that I find that this Court has limited options in dealing with the decision under appeal, and the appropriate course is, if meritorious, to return to the primary proceeding to the Magistrates Court for rehearing of the complaint and summons.
Appeal Against Conviction
- The grounds of appeal relate to the events of the 8th of August 2014. By that time, by virtue of the filing of the notice of hearing, the conviction and orders made at the first hearing had ceased to have effect but, on the rehearing, could be restored to have effect on and from the date it was first pronounced.
- Since the rehearing was to proceed in that way, it was open for the appellant who felt aggrieved to appeal from the order made by the Magistrate on 8 August 2015 restoring the conviction and orders made at the first hearing.
Notice of Rehearing
- The Magistrates Court treated the application for rehearing pursuant to sections 142(7)(b) and 142A(12A)(b) of the Justices Act 1886 Qld). Those provisions empowered the Court to proceed to determine the matter forthwith or may set the rehearing for a later date.
- Pursuant to section 142A(12A)(b), when a rehearing is granted:
- (a)the conviction or order made in the first instance shall, subject to section (12B), forthwith cease to have effect; and
- (b)the Court may proceed with the rehearing forthwith or may set down the rehearing for a later date; and
- (c)on such rehearing, the Court shall have and may exercise all the powers and procedures that it has in the case of an original hearing.
- As I intimated above, the powers of the Court at the original hearing in circumstances where a defendant seeks to change a plea is likely to be limited to addressing that proposed change particularly in circumstances where the original hearing proceeds ex parte and summarily without any evidence. If on that occasion the Court formed the view that the application to change the plea should be allowed then it would be appropriate for that Court to make orders to facilitate a re-hearing of the complaint in summons in a contested way on the basis that the plea would be “not guilty.”
- It seems to me that the proceedings of the 8th of August 2014 were fundamentally flawed in that no effective notice was given to the appellant about the date, time and place of hearing. It constitutes a clear breach of procedural fairness.
- On that basis alone, the determination of that date ought be set aside.
Change of Plea
- It is also incumbent upon this Court to consider the application insofar as it can in relation to the application to change the plea.
- It is trite to say that the Court has an inherent jurisdiction to permit a change of plea of ‘guilty’ to a plea of ‘not guilty’ notwithstanding a plea of ‘guilty’ below. It is also clear that the inherent power will only be exceptionally exercised, and it is a power concerned to prevent a miscarriage of justice.
- In Meissner v The Queen (1994-95) 184 CLR 132 at 141, Brennan J, Toohey J and McHugh J held:
“A Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding, providing the plea is entered in exercise of free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does not act on such a plea, even if the person entering it is not in truth guilty of the offence.”
- In Maxwell v The Queen (1996) 184 CLR 501, Toohey J referred to the Court’s inherent power to allow a defective plea of guilty to be withdrawn and a conviction on various grounds including that the accused did not understand the charge or did not intend to admit guilt or that on the facts admitted on the plea, he could not in law have been guilty of the offence or that the plea was induced by intimidation in proper inducement or fraud. His Honour said at page 552:
“This is part of the inherent jurisdiction of Courts to see that justice is done and some, if not most, of the decisions mentioned are explicable on the footing that: In the view of the court, the accused lacked full understanding of the plea, or there was some other vitiating factor.”
- In the same case at pages 510 to 511, Dawson and McHugh JJ said:
“An accused is entitled to plead guilty to an offence with which he is charge and, if he does so, the plea will constitute an admission of all of the essential elements of the offence. Of course, if the trial judge forms a view that the evidence does not support the charge, or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so, and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty and any time before the matter is disposed of by sentence or otherwise. The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise, an accused may insist upon pleading guilty.”
- In the present case, it seems to me that the notice given by the appellant of the intention to plead guilty was equivocal. Indeed, it seems plain on my reading that it raises the prospect of a viable defence of mistake or even if it is shown that the relevant section of the Bruce Highway was not a 60 kilometre per hour zone, but rather an 80 kilometre per hour zone, the appellant has not, in fact, committed the offence. In those circumstances, it seems to me that the magistrate, taking account of the qualification in the notice of intention to plead, ought to have formed a view that the plea of guilty was not genuine and then obtain an unequivocal plea of guilty or direct a plea of not guilty be entered. That course was not a matter of discretion.
- In circumstances where a defendant fails to appear, the appropriate course ought to have been to adjourn the matter with notice to the effect that that the matter would be returned to the Court in relation to the question of the effect of the notice of intention to plead guilty, or alternatively, the magistrate could have directed the plea of not guilty be entered.
- Even so, it appears to me upon the examination of the material available on appeal, including the fresh evidence that the appellant has not, in fact, committed the offences charged in the complaint and summons. It is a proper case to exercise the power to prevent a miscarriage of justice. Having regard to the circumstances here and the nature of the fresh evidence, I will direct that a plea of not guilty be entered in respect of the complaint and summons in respect of the charge of disobeying the speed limit subject of the complaint and summons number MAG-00090834/14(2) filed 6 May 2014.
- In that context by force of section 142A(12A)(a) the conviction and order made in the first instance on the 16th of June 2014 will cease to have effect and, in any event, ought be set aside.
- Therefore, I make the following orders:
- (1)The conviction and orders made on the 16th of June 2014 are set aside.
- (2)A plea of ‘not guilty’ be entered in respect of the summary charge of disobeying the speed limit subject of the complaint and summons MAG-00090834/14(2) filed on 6 May 2014, notwithstanding the notice of intention to plead guilty filed by the appellant on the 5th of June 2014.
- (3)The proceeding in respect of the complaint and summons is remitted to the Magistrates Court Cairns Registry for rehearing before a different magistrate in due course.
Judge D. P. Morzone QC
- Published Case Name:
Or v Queensland Police Service
- Shortened Case Name:
Or v Queensland Police Service
 QDC 122
02 Apr 2015