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Vairy v Queensland Police Service QDC 78
DISTRICT COURT OF QUEENSLAND
Vairy v Queensland Police Service  QDC 78
KENNETH ERNEST VAIRY
QUEENSLAND POLICE SERVICE
Magistrates Court at Emerald
12 March 2015 ex tempore
12 March 2015
APPEAL – s 222 Justices Act 1886 – appeal against sentence – where appellant convicted and sentenced ex parte – where orders made in absence of appellant.
CRIMINAL LAW – procedure – appeal under s 222 Justices Act 1886 – where more appropriate for appellant to apply for re-hearing under s 142A Justices Act 1886 – where appellant statute-barred from making application under s 142A Justices Act 1886.
Justices Act 1886 (Qld), ss 222, 142A.
Penalties and Sentences Act 1992, s 35.
Guy v McLoughlin and Anor  QDC 017
The appellant appeared on his own behalf.
J. Phillips for the respondent
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: In this instance, the applicant appears in person. He was convicted on the 26th of August 2014 in the Emerald Magistrates Court of an offence of stealing a vehicle. The vehicle in that case was a caravan, the property of one John Andrew Hawkins. He was charged by bench charge sheet and he was to appear on that occasion. Unfortunately, he was unable to attend on that day and in fact had arranged for somebody from the Magistrates Court at Rockhampton, a woman by the name of Maree Wilfare, a Court services officer, to correspond with the Court at Emerald, informing the Court that he was unable to attend. He handwrote a letter where he said:
“Due to circumstances beyond my control (breakdown in transport arrangements), I am unable to attend your Court today. I am also in the process of seeking legal assistance. I do apologise for any inconvenience and ask that these matters be adjourned to a later date in about a month. I respect your position and accept your decision [errors and omissions excluded].”
- The letter was date stamped 25 August 2015 by the counter at the Rockhampton Magistrates Court and was forwarded as an attachment by email at 9.31 am that day to the Emerald Court. That letter was not brought to the attention of the presiding magistrate and that is a matter of concern. However, unfortunately that fact does bear upon the outcome of this appeal
- When the matter was called on the 26th of August, Mr Vairy was not present but a co-accused in respect of the same offending was. The magistrate proceeded to hear the application in the absence of the appellant. His jurisdiction to do so was enlivened by s 142A(4) Justices Act 1886, which permitted the Court to proceed to dispose of the application in the instance where a defendant does not appear at the time and place fixed for the hearing of the complaint which, in this instance, was that time and day. Accordingly, it was within the jurisdiction of the magistrate to make the orders that he did which included the orders for restitution which orders are made pursuant to s 35 of the Penalties and Sentences Act 1992.
- In the result, the magistrate convicted and fined the appellant a sum of $1000 and directed he pay compensation by way of restitution in the sum of $5440. These matters plainly came to the attention of the appellant some time after the recording of the conviction and before the 17th of September 2014, that is inside two months after the date of conviction. However, in response to receiving information concerning his conviction, the appellant filed a notice of appeal to a Judge of this Court pursuant to s 222 of the Justices Act 1886. It is unfortunate that he adopted that procedure. The appropriate process for disposition of orders made in the absence of a defendant pursuant to s 142A has been considered and discussed by his Honour McGill DCJ in a decision of Guy v McLoughlin and Anor  QDC 17 where at  his Honour observed:
“A person who is convicted on an offence under section 142A and who wishes to challenge the merits of that conviction is required to follow the statutory procedure in subsection (12), and apply for a rehearing. If a rehearing is granted, there will be an ordinary summary trial with evidence and findings of fact can be made and a decision reached by the magistrate, which can then be subject to appeal under section 222. If the application for rehearing is refused, there can be an appeal against that decision under section 222. In my opinion in the absence of an application under subsection (12) for a rehearing, it is not open by an appeal under section 222 against a conviction pursuant to section 142A to raise issues which were not raised before the magistrate as to whether the appellant was really guilty of the offences charged.”
- Significantly for the appellant in this instance, as I’ve earlier noted, the time within which the period to make such application for rehearing is different from a time to bring an appeal but materially is two months. It follows that his application for a rehearing pursuant to s 142A(12) expired at midnight on the 25th of October 2014. It is now simply too late for him to bring that application in the Magistrates Court. As his Honour, McGill DCJ observed in Guy v McLoughlin and Anor (supra) at  where he stated:
“Subsection (12) is quite limited; there is a relatively short period of 28 days within which an application for a rehearing can be made [I interpolate that such time has subsequently been extended to two months], and so far as I can see no power in anyone to extend that period, for whatever reason. Further, it runs from the date of determination of the complaint by the court, not the date upon which notice of it is actually received by the defendant. Accordingly the time for applying for a rehearing could easily expire before the need to apply even came to the attention of a defendant. Because of the absence of any provision for an extension of the 28 day period, the subsection appears to me to have a capacity to work an injustice in particular cases, perhaps unusual cases but obviously cases which will be met with from time to time. Nevertheless, this is a matter for parliament; there is nothing I can do about it.”
- I am in the same position as his Honour, McGill DCJ. It is unfortunate for the appellant in this instance that, although his appeal to this Court would be seen to be brought within an acceptable timeframe having regard to the statutory architecture, the fact remains that it was not brought in the appropriate manner and in accordance with the section which is clear in its expression. It follows that there is nothing I can do about the appellant’s failure to bring the correct application. This appeal must fail for reasons I’ve stated and unfortunately, the appellant is, by reason of the limitation, now statute-barred from bringing any application pursuant to s 142A(12). The appeal is dismissed. I note that the Crown does not seek costs and I make no order as to costs.
- Published Case Name:
Vairy v Queensland Police Service
- Shortened Case Name:
Vairy v Queensland Police Service
 QDC 78
12 Mar 2015