Friend v The Commissioner of Police
[2015] QDC 228
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- Unreported Judgment
- Friend v The Commissioner of Police[2015] QDC 228
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Friend v The Commissioner of Police[2015] QDC 228
Friend v The Commissioner of Police[2015] QDC 228
DISTRICT COURT OF QUEENSLAND
CITATION: | Friend v The Commissioner of Police [2015] QDC 228 |
PARTIES: | ANSON FRIEND (Appellant) and THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2299/15 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 18 September 2015 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 4 September 2015 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL: Where the appellant was charged with parking for longer than indicated and wilfully damaging a Queensland Driver Licence – Where the appellant was convicted and fined in his absence under s. 142A of the Justices Act – Whether the learned Magistrate complied with the requirements of s. 142 of the Justices Act – Whether the learned Magistrate was satisfied the facts provided constituted the alleged offences with sufficient particularity to allow the court to deal with and determine the matter. Legislation: Justices Act 1886 (Qld) ss. 52, 142A, 222, 222B Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 (Qld) s. 141 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s. 205 Cases: Atkin v Commissioner of Police [2015] QDC 224 Guy v McLoughlin and Anor [2006] QDC 17 Isenglaas v Commissioner of Police [2014] QDC 6 |
COUNSEL: | The appellant appeared on his own behalf AJ Robinson for the respondent |
SOLICITORS: | The appellant appeared on his own behalf ODPP on behalf of the Commissioner of Police for the respondent |
- [1]The appellant appeals against the orders made, in the Magistrates Court on 11 May 2015 at Brisbane, whereby he was convicted and fined, in his absence, in respect of two charges:
- (i)Parking for longer than indicated: Transport Operations (Road Use Management – Road Rules) Regulation 2009, s. 205; and
- (ii)Wilfully damaging a Queensland Driver Licence: Transport Operation (Road Use Management – Driver Licencing) Regulation 2010, s. 141.
History of the Proceeding
- [2]The offences were alleged to have occurred on 2 February 2014. The charges were commenced by Complaint – Sworn and Summons dated 23 September 2014. The summons required the appellant’s appearance to answer the complaint on 21 October 2014. The record, transferred to this Court under s. 222B of the Justices Act 1886, includes correspondence which shows the appellant applied for and was granted an adjournment until 10 March 2015. The record shows that the appellant did not appear on 10 March, 2015. A magistrate, purporting to act under s. 142A of the Justices Act, proceeded in his absence and convicted and fined the appellant. The appellant applied for and was granted, under subsection 142A(12), a re-hearing of the complaints. The orders made on 10 March 2015 were revoked. Notice was sent to the appellant that the matter was listed for mention on 11 May 2015. Email correspondence with the appellant dated 27 April 2015 included advice to him that should he choose not to attend on 11 May 2015 ‘the matter may be determined in your absence’. The appellant did not appear on 11 May 2015. The learned Magistrate, purporting to act under s. 142A of the Justices Act, convicted and fined the appellant in his absence.
- [3]On 4 September 2015, the appellant did not appear to argue the appeal. Because he had filed a written outline and because there might have been confusion about whether he understood his attendance was required, I decided, without opposition from Ms Robinson, who appeared for the respondent, to deal with the appeal on the papers.
- [4]On 7 September 2015, I requested, through the registrar, further written submissions of the parties. I received written responses from both.
Notice of Appeal
- [5]Filed on 2 June 2015, the Notice includes two grounds of appeal:
- Over-riding all other considerations the alleged claims both exceed 12 month statute of limitations and were null and void by the time of the order. The complainant had 12 months to proceed but neglected to do so.
- I asked for proof of both claims repeatedly and was willing to settle privately. The complainant was unwilling and unable to provide proof of claim.
Section 142A and the appeal process
- [6]Section 142A provides for a procedure for dealing with a complaint of a simple offence or breach of duty made by a public officer or a police officer. By subsection (4),
- (4)Where—
- (a)….
- (b)the defendant is required to appear at a time and place fixed for the hearing of the complaint—
- 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
- ii)under a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980; or
- 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
- (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 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 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 court may take into account any information considered by it to be relevant brought to its notice by or on behalf of the complainant or defendant: subs. 142A(5).
- [8]The court at the place of determination, may, upon application within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint: subs. 142A(12).
- [9]Subs. (15) provides,
To remove any doubt, it is declared that this section also applies if a person fails to appear before a court after the person is granted bail, or permitted to go at large without bail, under the Bail Act 1980.
- [10]Although obviously aware of the availability of an application for a rehearing the appellant did not seek it. His appeal grounds allege fundamental defects: (i) that the charge was out of time; and (ii) that, in effect, there was no evidence that an offence had been committed.
- [11]The appeal is under s. 222 of the Justices Act 1886, which provides,
If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.
- [12]It may be that the availability of the application to rehear the charge under s. 142A(12) limits the scope of an appeal under s. 222 of the Act, as McGill SC DCJ considered in Guy v McLoughlin and Anor [2006] QCA 17, but I am satisfied it does not preclude the challenge made in this appeal to the convictions. In particular, in respect of one of the charges, I am satisfied the requirements of s. 142A have not been observed.
Consideration of the grounds of appeal
- [13]The first ground has no merit. The complaint was sworn on 23 September 2014, almost 8 months after the date of the charges. The complaint was made within the 12 months required by s. 52 of the Justices Act.
- [14]To the second ground, the respondent submits the appellant never appeared in court so there was no occasion to order a brief of evidence to be produced. So far as that submission goes, I accept it but the ground of appeal requires further consideration.
- [15]The appellant, in his written outline, made further submissions which the respondent dealt with in writing. These submissions were not within the grounds of appeal but I have read and considered them as I have the respondent’s detailed responses. I do not intend to set them out. They contain no basis for setting aside the convictions.
- [16]I have already referred to ground two as, effectively, an assertion that there was no evidence of the commission of an offence. It is necessary to consider the requirements of s. 142A to deal with this proposition.
- [17]I have set out part of the provision. Before it may deal with and determine the matter under s. 142A, the court must be 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 ..
- [18]The charges are set out in the complaint as follows:
Charge 1
that on the 2nd day of February 2014 at Caxton Street Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Anson FRIEND being the driver of a vehicle namely a car on a road namely Caxton Street Brisbane parked continuously on a length of the said road to which a permissive parking sign applied for longer than the period indicated by information on or with the said sign namely 15 minutes and it is averred that the said car is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Caxton Street is a road as defined in schedule 4 of the Transport Operations (Road Use management) Act 1995.
Charge 2
that on the 2nd day of February 2014 at Caxton Street Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Anson FRIEND did wilfully damage a Queensland driver licence namely a Queensland Open Driver Licence.
FURTHER PARTICULARS
Charge 1
Time about 6.06pm Date of Birth 14.4.78 Registration No. QLD 290-RQS
The defendant was the owner of a motor vehicle which was parked for longer than indicated.
Charge 2
Time about 6.06pm Date of Birth 14.4.78 Registration No. QLD 290-RQS
The defendant was the driver of a motor vehicle who wilfully damaged his Queensland Driver Licence.
- [19]There was no other document before the court setting out further particulars of the charges. Although the learned Magistrate made more than one request for information, no more was provided. The record includes the learned Magistrate saying,
There’s a complaint though. Okay. Details are on the complaint. I probably need more than that, though. Have you got anything else?
- [20]After some discussion, which did not include even a statement from the bar table as to the facts of the offences, the learned Magistrate seems to have been satisfied it was proper to proceed. This was in the circumstances that the appellant had received notice that he was required to appear and the complaint had, upon his application, been listed for re-hearing.
- [21]Section 142A does not require the charge to be established by evidence, but the court is required to be satisfied that the facts alleged in or served with the complaint and summons constitute the charged offence with reasonably sufficient particulars to allow the court to deal with and determine the charge.
- [22]I am satisfied it was open to the learned Magistrate to deal with and determine the first charge but not the second.
- [23]The particulars set out in and accompanying the first charge required no elaboration.[1] It was open to the leaned Magistrate to be satisfied the facts provided constituted the alleged offence with sufficient particularity to allow the court to deal with and determine the matter.
- [24]The respondent, by its supplementary written submission, concedes the second charge was not sufficiently particularised to satisfy the learned Magistrate as required under s. 142A. I consider that concession rightly made. It was incumbent on the prosecution to provide further particulars of the charge to enable the court to deal with it. Section 141 of the Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 provides simply:
A person must not wilfully damage a Queensland driver licence.
Maximum penalty—20 penalty units.
- [25]The charge as particularised may be said to “constitute” the offence as required under s. 142A(4) but further particulars were required to properly deal with and determine the charge. It was at least necessary to know how the appellant caused damage to the licence. It may be said that the appellant’s failure to appear before the court significantly contributed to the error complained of. Nonetheless, as Richards DCJ said in Atkin v Commissioner of Police [2015] QDC 224 at [11]:
When exercising a power to proceed in the absence of a party care must be taken to comply with the legislation meticulously.
- [26]With some sympathy for the position the learned Magistrate was in I conclude the order made in respect of the damage charge should not stand.
Disposition
- [27]The order of the learned Magistrate with respect to the charge of wilfully damaging a driving licence on the above basis should be set aside. The charge therefore remains untried. I consider it necessary to send it back to the Magistrates Court for further hearing.
Orders
- [28]The order of the learned Magistrate with respect to the charge of parking for longer than indicated is confirmed.
- [29]The order of the learned Magistrate with respect to the charge of wilfully damaging a Queensland driver licence is set aside.
- [30]The proceeding on the charge of wilfully damaging a Queensland driver licence is sent back to the Magistrates Court for further hearing.
Footnotes
[1] Compare Isenglaas v Commissioner of Police [2014] QDC 6