Ban v Loxton[2015] QDC 123

DISTRICT COURT OF QUEENSLAND

Nature of application

1. [1]
   This is an application seeking an order pursuant to s 224(1)(a) of the Justices Act 1886 (Justices Act) for an extension of time for filing a notice of appeal against a decision of a magistrate pursuant to s 222 of the Justices Act.

Background

2. [2]
   On 9 August 2014, the applicant was served by the first respondent with a notice to appear in the Beenleigh Magistrates Court on 8 September 2014 accused of an offence of obstructing police (the notice). The notice was issued under s 382 of the Police Powers and Responsibilities Act 2000 (PPR Act).

3. [3]
   The applicant telephoned the Beenleigh Magistrates Court on 8 September 2014, and advised that she was sick and sought an adjournment for two weeks on the basis of ill health.

4. [4]
   On that basis, the matter was adjourned until l5 September 2014 by the magistrate.

5. [5]
   The applicant then emailed the Beenleigh Magistrates Court on 12 September 2014 and sought a further adjournment on the grounds of ill health without furnishing a medical certificate.

6. [6]
   When the applicant failed to appear on 15 September 2014 the magistrate proceeded to hear the matter ex parte pursuant to s 142A of the Justices Act and imposed a fine of $250 on the applicant for a breach of s 790(1) of the PPRA Act for obstructing a police officer. No conviction was recorded and the matter was referred to the State Penalties Enforcement Registry.

7. [7]
   The applicant does not dispute that she received the notice of conviction.

8. [8]
   The applicant did not seek a rehearing under s 142A(12) of the Justices Act within two months after determination of the matter by the magistrate.

9. [9]
   On 27 November 2014, the applicant filed the following documents in the District Court:

1. (a)
   a Notice of Appeal pursuant to s 222 of the Justices Act (Notice of Appeal);

2. (b)
   a Notice of Application for Extension of Time for filing a Notice of Appeal to a District Court judge under s 224(1)(a) of the Justices Act (Application for Extension of Time); and

3. (c)
   a Notice of Application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (DCQ Act).  It is understood that an amended application to appeal under s 118 of the DCQ Act was filed on 1 December 2014 but that application has since been abandoned.

4. (d)
   On 19 December 2014, the applicant filed a further application to the District Court to state a special case for the opinion of the Court of Appeal pursuant to s 227 of the Justices Act.  She stated in that document that it replaces the two previous filed versions of the application to appeal to the Court of Appeal under s 118 of the DCQ Act which contained errors.

Notice of appeal

10. [10]
    The Notice of Appeal seeks, amongst other things, an order declaring that s 142A of the Justices Act is invalid and to have the orders of the magistrate made on 15 September 2014 set aside.

Application for Extension of Time

11. [11]
    Pursuant to s 222(1) of the Justices Act, the applicant had one month after the date of the order to appeal. Therefore, any appeal should have been instituted by 15 October 2014. This is acknowledged by the applicant in her application for an extension of time.

12. [12]
    Under s 224(1)(a) of the Justices Act, a District Court judge may, on application of a party extend the time for filing a notice of appeal. In R v Tait,^[1] the Court of Appeal held that the considerations relevant to whether an extension of time should be granted include whether a good reason has been provided to account for the delay and whether it is in the interests of justice for the extension to be granted.  The Court of Appeal summarised the approach of the court to questions of extending time in criminal appeals as follows:^[2]

“… the court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  It may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all cases the court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension.  Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue.  Another factor is the length of the delay it being much easier to excuse a short than a long delay (footnote omitted).

Delay

13. [13]
    The applicant’s stated reasons for the delay in filing the appeal are that she was suffering ill health at the time, that she was very busy preparing appeal documentation in relation to another unrelated appeal and that the District Court registry refused to accept electronic filing of the Notice of Appeal on 14 October 2014.

14. [14]
    It appears from her written submissions that the applicant was aware of the existence of a time limitation period for appeals.^[3]

15. [15]
    Insofar as her ill health being a reason for the delay in filing a notice of appeal, the applicant relies on a medical certificate dated 1 October 2014 exhibited to her affidavit filed on 13 March 2015 (“attachment HDB2”), as well as the following passage in that affidavit:

“Over the past number of years that I have been on some prescription medication, I believe this has affected me, my health generally.  I have gone to a naturopath and other natural healers in recent time and have found out that prescription medication, including anaesthetics can have a lasting impact on a person and their long-term health.  In recent times I have consulted natural healers for this, which is helping but have noticed that my health has been affected when going on and off medication, in terms of chronic fatigue for example.”

16. [16]
    The medical report relied upon is under the hand of Dr Andrew Davison of the Oasis Specialist Centre at Sunnybank. Dr Davison states that he has treated the applicant regularly for a number of years commencing 2010, and that prior to her consultation with him on 1 October 2014, he last consulted with her on 16 June 2014. Dr Davison states that he has treated her for a number of conditions including anxiety and major depressive illness.

17. [17]
    In his report, Dr Davison says:

“…

She has made me aware that she has been involved in protracted legal proceedings through the last three to four years, and has suffered a number of other significant personal stressors and losses in her life over that period.

As a result of today’s consultation I consider that she is again suffering from symptoms of anxiety and depression.  Her symptoms are fatigue, low energy, poor concentration, low mood, feeling overwhelmed, low self esteem, difficulty falling asleep and intermittent insomnia and at times hypersomnia. On her account today her symptoms have been more debilitating for her during the last six months, though present since late 2013.

In my opinion Ms Ban has been and will be unfit to attend to personal legal affairs which require a higher degree of energy, concentration and focus until her condition improves.  I expect that this may occur in the next few weeks and I expect to further review her progress on or about 1/11/2014.”

18. [18]
    Unfortunately for the applicant, Dr Davison’s report offers no good reason for the delay in filing the notice of appeal. According to the applicant’s own evidence, she had prepared the notice of appeal and had it ready in electronic form by 10 October 2014. All that was left to be done at that time was its filing. In my view, the filing of a completed document would not require “a higher degree of energy, concentration and focus”.  Furthermore, Dr Davison expected that the applicant’s condition may improve over “the next few weeks” and that he expected to review her progress on or about 1 November 2014. Yet, no material has been placed before the court as to whether any such review occurred or whether her condition did in fact improve.  No explanation has been offered as to the reason why it then took the applicant until 27 November 2014 to file the Notice of Appeal and the Application for an Extension of Time.

19. [19]
    I note also, that part of the applicant’s explanation for the delay was the fact that she was busy preparing appeal documentation regarding another unrelated matter. That fact however, is quite inconsistent with Dr Davison’s opinion that she was unfit to attend to personal legal affairs at the time he saw her. I infer, that her condition therefore improved over the following weeks as Dr Davison expected.

20. [20]
    In R v Tait, the applicant conceded that he knew that there was a time limit for appealing to the court and chose to file an alternative judicial review application rather than to appeal under s 118 of the DCQ Act.  The excuse he offered was that he was a full-time student, a student union counsellor, was preparing for student elections and that he had a heavy workload.  These reasons were held not to be a good explanation for the delay and that he had not been under any greater disadvantage than many other persons in the community.^[4]

21. [21]
    There are similarities with the explanations provided by the applicant in this matter to those in R v Tait, with the exception of the alleged health issues. The applicant acknowledges that she knew what the time limitation period was and states that the appeal documentation was ready before that limitation period expired.  Accepting that the District Court Registry refused to accept the electronic filing of her Notice of Appeal, that does not explain the subsequent six week delay between the expiration of the limitation period and the date the Notice of Appeal was filed.

22. [22]
    As Keane JA (as his Honour then was) said in Spencer v Hutson^[5], “The prescribed time limits for appeals serve the important purpose of bringing finality to litigation. They are not lightly to be ignored.”

23. [23]
    For these reasons, I am of the view that the applicant has failed to provide a good explanation for the delay in filing the Notice of Appeal.

Interests of justice

24. [24]
    In her Application for Extension of Time, the applicant has not specifically pointed to or demonstrated any error in the magistrate’s ability to hear the matter ex-parte or to make an order convicting and sentencing her.

25. [25]
    Instead, the applicant has submitted that public interest reasons exist which relate to the potential invalidity of s 142A of the Justices Act. She submits that it is an issue which concerns public confidence in the administration of criminal justice and that it is an issue which is fundamental to the preservation and reinforcement of the safeguards for the protection of accused persons.

26. [26]
    The relevant provisions of s 142A of the Justices Act are as follows:

“Permissible procedure in absence of defendant in certain cases

142A

…

(4)  Where –

1. (a)
   a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and

2. (b)
   the defendant is required to appear at a time and place fixed for the hearing of the complaint –

1. (i)
   by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or

2. (ii)
   under a condition of the defendant’s bail or by a notice of given to the defendant under the Bail Act 1980; or

3. (iii)
   by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and

3. (c)
   the defendant does not appear at the time and place fixed for the hearing of the complaint;

the court before which the complaint 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 constitutes 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 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.”

27. [27]
    Notwithstanding the voluminous nature of the applicant’s submissions, the essence of her argument is that s 142A of the Justices Act is invalid because it offends the Kable principle^[6] because it enables a court to hear a matter in the absence of a defendant, based on material provided by one party which is not proven by the rules of evidence and without affording a defendant the right to be heard or to provide a defence to the matter. 
28. [28]
    Section 142A(4) of the Justices Act permits the hearing of a simple offence, which in this matter was the charge of obstructing a police officer pursuant to s 790(1) of the PPR Act. In this case, the prerequisite circumstances as required by s 142A of the Justices Act were satisfied including that the applicant:

    1. (a)
       was required to appear at a time and place fixed for the hearing of the complaint, namely 15 September 2014, by notice of an adjournment given to the applicant a reasonable time before the date fixed for the hearing of the complaint^[7]; and
    2. (b)
       did not appear at the time and place fixed for the hearing of the complaint.^[8]
29. [29]
    The applicant has not indicated that she did not receive the notice of adjournment and acknowledges that she chose not to appear at the hearing on 15 September 2014.  In those circumstances, pursuant to the provisions of s 142A(4), the learned magistrate was entitled to proceed to hear the matter ex parte. 
30. [30]
    The applicant has not produced any evidence to the effect, or even claimed in submissions, that she is not guilty and has been wrongly convicted. There is, therefore, nothing on which the viability or strength of her appeal against the order of the magistrate can be assessed. Rather, she appears to argue that she was simply denied an opportunity to be heard because of the operation of s 142A(4) of the Justices Act. 
31. [31]
    If the remedy that the applicant seeks from her appeal is the opportunity to be heard, then she had a right to seek a rehearing pursuant to s 142A(12) of the Justices Act within two months after the magistrate’s order of conviction was made. When questioned as to why she did not avail herself of the provisions of s 142A(12), she replied, from the bar table, that she chose not to and that she chose to proceed by way of appeal. 
32. [32]
    Putting that to one side however, the applicant bears the onus of demonstrating that a miscarriage of justice would potentially occur if the extension of time was not granted. The applicant however has not provided any evidence or even raised any factual assertions which would, or even could, demonstrate that she has a chance of acquittal at trial.
33. [33]
    Rather, the applicant appears to wish to run this matter as a test case to argue the invalidity of s 142A(4) of the Justices Act on an argument based on the Kable principle.
34. [34]
    However, the validity or otherwise of s 142A(4) is irrelevant in an application for an extension of time, because in such an application the applicant is required to demonstrate that the conviction resulted in an injustice or a potential injustice.  In this matter the applicant has made no attempt to do that in any of the voluminous material upon which she relies.  She has placed nothing before the Court to show (or even suggest) that a miscarriage of justice in that regard has occurred.  In fact, even if her appeal was successful, the inevitable outcome would be that the matter would be remitted to the Magistrates Court for rehearing.  Given that the applicant has placed no material before the Court demonstrating that her conviction resulted in an injustice, the only inference open is that upon a rehearing the same outcome would result. 

Conclusion

35. [35]
    The applicant has failed to show any good reason to account for the delay and has not demonstrated that it would be in the interests of justice to grant the extension of time sought. 

Order

1. The application for leave to extend the time to file a notice of appeal is refused.
2. The Notice of Appeal is dismissed.

36. [36]
    I will hear the parties as to costs.