Condon v Munsie[2015] QDC 148

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 1 September 2014, the applicant filed, in the District Court Registry at Townsville, a notice of appeal in respect of orders made against him in the Magistrates Court at Townsville, in “June 2014”. As this matter has developed, it is apparent that the applicant seeks to appeal the orders made against him in that court, on 15 May 2014, when he was convicted in of three offences:

1. an offence pursuant to s 50(2)(a) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008 of exceeding the maximum work time of 12 hours in any 24 hour period (critical risk breach) between 4 p.m. on 23 October 2012 and 4 p.m. on 24 October 2012;
2. failing to record required information in a work diary on 24 October 2012, pursuant to s 71(1)(d) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008; and
3. failing to record required information in a work diary on 25 October 2012, pursuant to s 71(1)(a)-(d) of the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008.

1. [2]
   The maximum penalty applying to each offence was 60 penalty units. The applicant was sentenced to a single fine of $1,500, in respect of all three charges and pursuant to s 49 of the Penalties and Sentences Act 1992. He was granted two months to pay the fine, in default 14 days’ imprisonment.
2. [3]
   The matter was transferred to be heard at Gympie, at the applicant’s request and so as to enable it to be heard where the applicant resided and was so heard on 1 June 2015. On 5 June 2015, the Court made the following orders:

1. That the time allowed for the filing of the applicant’s Notice of Appeal be extended to 1 September 2014;
2. The appeal is allowed and the orders made in the Magistrates Court at Townsville on 15 May 2014, are set aside; and
3. The proceedings are sent back to the Magistrates Court at Gympie, to be heard according to law.

1. [4]
   What follows are the reasons for those orders.
2. [5]
   As the notice of appeal filed by the applicant purported to bring an appeal under s 222 of the Justices Act 1886, the applicant required an extension of time for the filing of that notice of appeal and in that regard he had filed a notice of application, on 23 September 2014.
3. [6]
   As stated in R v Tait [1992] 2 Qd R 667, the principles to be applied involve consideration as to whether there is any good reason shown for the delay and as to whether it is in the interests of justice to grant the extension. In the latter respect it is appropriate to have regard to the prospects of success or merits of the appeal.
4. [7]
   In this instance and notwithstanding that there are a number of documents attached to the notice filed on 23 September 2014, there is effectively nothing provided by way of reasonable explanation for the delay, except for what purported to be letters sent to the clerk of the court as early as 13 July 2014 and making reference to “asking for legal advice due to first fine in over 47 years on the road”. At least by having regard to another attached document, which refers to the incurrence of demerit points for an apparent driving offence in 2011, this must be taken as an assertion in relation to offending of this kind in relation to the fatigue management regulation. It may also be noted that another attached document is a response by the acting court policy and protocols officer of the Department of Justice and Attorney-General, indicating a response to a letter dated 11 August 2014, to the then Chief Magistrate. However, it is apparent from the contents of that letter that it relates to correspondence in respect of another appeal by the applicant and in respect of matters heard in the Magistrates Court at Gympie, on 8 August 2014 and the lodgement of an appeal on 13 August 2014, in that respect.^[1] That appeal was also heard in the same sittings at the Gympie District Court and this only serves to indicate the prompt action taken by the applicant in respect of that other appeal. Otherwise and on the hearing of this application and as it was understood, the applicant attempted to point to his difficulties as a self- represented litigant.
5. [8]
   As I have already noted, it is also necessary to have regard to the merits of the proposed appeal.
6. [9]
   As pointed out for the respondent, as this matter was dealt with in the absence of the applicant, the justification for the magistrate doing so, is pursuant to s 142 of the Justices Act 1886. The prosecution was by way of complaint and summons, filed on 15 April 2014 and there was an affirmed oath of service of the complaint and summons on the applicant, by registered post sent on 3 April 2015. That summons required appearance on 15 May 2014 and before then, the applicant had forwarded to the Court some written material. There were three pages:

1. first, a letter addressed to the magistrate and bearing the date 6 April 2014. It makes reference to a summons and relevantly states (as it appears):

“Your worship, please find copys of letters as to said matter.

Your Worship

I cannot be at your court due to my wife being call3ed on and off to Nambour Hospital due to her having a lot of trouble with her kidneys it looks like she will being having one taken out as she can not drive I need to be here said matter with kidney stones now has come her as well may be going on a kidney machine.

Sir I have not had a log book fine in all the years on the road I hope that you will please take that in to account as my Centre link income is not much and after having a large hart attack said medication is getting out of hand and the cost is going up all the time.

Sir I do not drive that much now but my doctor has given me the full OK”;

2. the second, bearing the date 20 September 2013, is addressed to Transport and Main Roads Prosecutions Unit and is headed “Re work diary 25/10/2012”. Relevantly, it reads (as it appears):

“Dear sir/madam.

I am mailing this letter as to my infringements No A5989892 7 as well, A26989 6. Back in October I had a phone call from my son Glen asking if I could come up to help him out due the fact that he was in a state of being ill.

I was given a lift in Volvo up to where he was I found that he had not been taking his medication due to him having a lot of problems with the mother of his two sons as well he had a cold and was running a high temperature as well he was sleeping a lot he would not wanted to see a doctor but to finish the job that he took on so there for I drove for some time and I dove again at times it was not a two up from the start of my son’s trip.

We rest at Atherton as well I had lunch at Raven Shoe my son was a sleep so I my self had some sleep under the trailer for around two hours from there I got behind the wheel as my son was out to it. I was driver a long Stuart Drive Townsville and a call came over UHF for me to pull over that I did it was a officer of transport was asked for ID as well log book which gave to him I was given a infringement notice as well as a Prohibition notice from there we drove to a truck stop and stay there to it was time to leave.

3. the third is a very brief letter addressed to the Northern Compliance Officer, Main Roads, Townsville and dated 23 September 2013, which appears to make some reference to a phone call in relation to “conduct of officer”. It appears largely inconsequential.

10. [10]
    Consistently with the experience of this court in dealing with the applicant, this correspondence does not provide any clear or unequivocal indication of the applicant’s position in respect of this matter. This was partly recognised, in the proceedings below:

MR LUNDIE: Yes, that’s correct, your Honour. I believe there is a letter on the court file by Mr Condon. It doesn’t detail a plea, as such, but he does detail and request a matter of mitigation be taken into account. I’m in your hands in relation to it, sir.

BENCH: Well, it’s probably ex parte, but that being said, the correspondence can be taken into account.^[2]

11. [11]
    Clearly this was not a situation where there was a written guilty plea and s 146A did not apply. Following that the proceedings continued as follows:

BENCH: So you can walk me through it, Mr Lundie.

MR LUNDIE: Yes, your Honour. Your Honour, the facts of the matter are that on the 25^th of October 2012, at 1.20, transport inspectors from the Department intercepted a heavy vehicle. The driver of the vehicle was identified as Robert William Condon, the defendant, by his drivers license. The defendant was required to produce his work diary. The defendant complied. An inspection of the work diary identified that for the 24 hour period between 4 pm on the 23^rd of October 2012 and 4 pm on the 24^th of October 2012, the defendant worked more than 13 and a half hours, namely, 17 hours in a 24 hour period, being a critical risk breach.

Also identified that, on the 24^th of October, the defendant, who was engaged returning from work and failed to record in his work diary whether he was engaged in either work – either a work/rest option prior to starting work, being that it didn’t indicate if he was working standard hours, BFM hours or AFM hours in his work diary. So he had failed to indicate in a diary what work/rest option he was operating under.

BENCH: Well, so you have a choice?

MR LUNDIE: Yes, they can operate under certain ones and it needs to be indicated. There’s boxes on the work diary for each category of work/rest option.

BENCH: And then that identifies what sort of breaks you need to have and when you have to have - - -

MR LUNDIE: That and how many hours they can work, yes, that’s correct, your Honour.

BENCH: All right.

MR LUNDIE: Also, on the inspection of the work diary for the 25^th, that the defendant was engaged in returning from work but had failed to record any information in his work diary prior to starting work. That information would be in relation to his name, the work/rest operation he was operating under, his licence number - - -

BENCH: He just hadn’t filled it in.

MR LUNDIE: He hadn’t filled the top section of the work diary out, your Honour.

BENCH: Sorry, that’s all, but the rest of it was filled in?

MR LUNDIE: That’s the information I have in the statement of facts, your Honour.

BENCH: Well, what are the diaries. What, have they got a header up the top: name and address and everything?

MR LUNDIE: They do, yeah. That’s correct.

BENCH: And then they have some columns there when you work, when you stop - - -

MR LUNDIE: For the work/rest hours, yes, that’s correct.

BENCH: Was that part filled in?

MR LUNDIE: That part’s a different offence actually, your Honour.

BENCH: All right. So we’ll get to that.

MR LUNDIE: Your Honour, in relation to the work diary entries, it indicated that, on the 23^rd, he’d commenced a journey from Rockhampton, through which he travelled through Townsville north up to Ravenshoe. The work diary for the 24 hour period from 4 pm on the 23^rd to 4 pm on the 24^th, had a two and a half hour period that wasn’t recorded and, as such, the complainant was not satisfied, to a certainly, which district the offence may have been committed in and, as such, pursuant to section 139 of the Justices Act (1)(c), I recall briefly, as the defendant’s work diary has shown that he clearly travelled through Townsville, has issued the complaint in the Townsville Magistrates Court.

BENCH: I see, he passed through, yes. All right then. So he was given a ticket for this, was he?

MR LUNDIE: That’s correct, your Honour. Each – he was issued two infringement notices initially: the first being in relation to his hours breach, and the second in relation to one of the offences in relation to failing to record the required information prior to starting work – or immediately after starting work, I should say, your Honour. The complainant alleges three offences.

BENCH: He’s not very comfortable with Mr Campbell. Have you seen that? That - - -

MR LUNDIE: Sorry, your Honour, you’re referring – in the letter, your Honour?

BENCH: Yes. That’s:

Re: Work diary.

This is 20^th of September 2013, and it’s concerns about his person hygiene. MR LUNDIE: I can’t recall if that was Inspector Campbell or the other

MR LUNDIE: I can’t recall if that was Inspector Campbell or the other officer that was present with him.

BENCH: Yes. In any event, I don’t think it changes whether or not he wrote in his diary.

MR LUNDIE: No, that’s correct, your Honour.

BENCH: This adds to the general affection that truck drivers have for transport officers.

MR LUNDIE: I’m certain that would be the case, your Honour.

BENCH: What were the ticket [indistinct]

MR LUNDIE: Each infringement amount is $660 per offence, your Honour. The maximum penalty being 6600.

BENCH: So 360, all right.

MR LUNDIE: 1980, would that be correct, your Honour.

BENCH: Well, if I multiply it by three, yes.

MR LUNDIE: Yes, it would be, by three, yes, yeah. The total for the three infringements.

BENCH: But this fellow has had a heart attack since and doesn’t drive too much.

MR LUNDIE: I know that was in his letter, yes, your Honour.

BENCH: So he’s convicted and fined $1500. What are your costs?

MR LUNDIE: $84.50. Sorry, your Honour.

BENCH: $84.50. He’ll be allowed two months to pay. In default – so in default 15 days. No, it can’t be right. 14 days. A conviction’s recorded.

MR LUNDIE: Your Honour, just [indistinct] ex parte 142 [indistinct].

BENCH: Yes.

MR LUNDIE: Thank you, your Honour. I have no further matters, may I be excused?

BENCH: Thank you.

MR LUNDIE: Thank you.^[3]

12. [12]
    An immediate difficulty is in reconciling what was done, with the power given to the magistrate under s 142 and which is relevantly expressed as allowing the court to:

1. “(a)
   proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons.”

12. [13]
    There is some practical significance here. Even if the applicant’s correspondence could be taken as not taking issue with the matters referred to and as being only expressly indicative of a plea in mitigation, there was express reference to the two infringement notices that had been issued. Whilst there was also reference to the summons, which included the third offence and which was added in the complaint, that allegation under s 71 of the regulation, required proof that a relevant driver had failed to record some stipulated information “immediately after starting work on a day”. Neither in the proceedings below did the prosecutor, nor on this hearing was the legal representative for the respondent able to, articulate the factual basis for that allegation. It is apparent that all of the offences were at least closely related and involved what was a related if not single course of conduct, in respect of the applicant’s involvement in driving a relevant truck. Further and as counsel for the respondent accepted, there is a potential difficulty in attempting to apply this section to omissions relating to discrete days, in circumstances where a period of work commences on one day and continues into another. Here it was common ground that the interception of the applicant, in Townsville and which led to these charges, was at about 1.20 am on 25 October 2012.
13. [14]
    However there is a more fundamental difficulty, in that each of the two charges brought under s 71 of the regulation, incorrectly allege that particular information was not recorded “immediately before starting work” on each of the days 24 and 25 October 2012.
14. [15]
    The effect of those observations is that there is demonstrated merit in the proposed appeal and as matters stood before this court, the convictions for the two offences under s 71 of the regulation are irregular, in that the complaint did not charge an offence known to law and accordingly, the single fine and consequential orders made in respect of all offences must also necessarily be set aside.
15. [16]
    Before concluding, there is another matter that should be noted, at least in deference to this issue being addressed in the written submissions of the respondent. It would appear that in cognisance of the express reference made by the prosecutor in the proceedings before the magistrate, to the amount of penalties applied by legislative effect to a penalty infringement notice (“PIN”), issued for such offences and the magistrate’s engagement in that comparison, reference was made to a passage in my decision in Pullen v O'Brien^[4] and the terms of s 16(2)(b) of the State Penalties Enforcement Act 1999 (“SPEA”). It was submitted: