Hainaut v Department of Transport and Main Roads
[2017] QDC 207
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- Hainaut v Department of Transport and Main Roads[2017] QDC 207
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Hainaut v Department of Transport and Main Roads[2017] QDC 207
Hainaut v Department of Transport and Main Roads[2017] QDC 207
DISTRICT COURT OF QUEENSLAND
CITATION: | Hainaut v Department of Transport and Main Roads [2017] QDC 207 |
PARTIES: | JEAN BAPTISTE DOMINIQ HAINAUT (appellant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
FILE NO/S: | APPEAL NO: D211/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 4 August 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 9 May 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – TRAFFIC – PROCEDURE – leave to extend time to appeal – whether magistrate refused to acknowledge that the appellant was not the person charged with the summary offence in question – whether magistrate proceeded with the case without agreeing to compensate the appellant for answering the questions directed at the person charged – whether the verdict reasonable and supported by the evidence – whether magistrate erred in her fact finding and the application of the law in relation to the defences available under s 24 of the Criminal Code and s 20(3) of the Motor Accident Insurance Act 1994 – whether he magistrate erred in her discretion in ordering the sum of $500 in professional costs. Legislation Criminal Code 1899 (Qld) Justices Regulation 2014 (Qld) Schedule 2 Justices Act 1886 (Qld) Motor Accident Insurance Act 1994 (Qld) Registration) Regulation 2010 (Qld)Transport Operations (Road Use Management – Vehicle Cases Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dayman v Proudman [1941] SASR 87 Dayman v Proudman [1941] SASR 87 Devries v Australian National Railways Commission (1993) 177 CLR 472 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gallo v Dawson (1990) 93 ALR 479 HCA 28 per Rich ACJ, Dixon and McTiernan JJ House v The King (1936) 55 CLR 499 Larsen v GJ Coles & Co Ltd (1984) 13 A Crim R 109. Neil v Nott (1994) 121 ALR 148 Norbis v Norbis (1986) 161 CLR 513 Ostrowski v Palmer (2004) 206 ALR 422 Proudman v Dayman [1941] HCA 28 R v Julian (1998) 100 A Crim R 430 R v Mrzljak [2005] 1 Qd R 308 R v Mrzljak [2005] 1 Qd R 308 R v Wilson [2009] 1 Qd R 476 Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | Self-represented Appellant S Ng for the Respondent |
SOLICITORS: | Department of Transport and Main Roads for the Respondent |
- [1]On 12 September 2016, the appellant was convicted after a summary trial in the Magistrates Court held in Cairns, of using an unregistered and uninsured motor vehicle contrary to reg 11 of the Transport Operations (Road Use Management Vehicle Registration) Regulation 2010 (Qld) (“Regulation”), and s 20(1) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”).
- [2]The appellant now appeals his convictions.
- [3]Both parties provided outlines of argument, and made further submissions on the hearing of the appeal relating to additional grounds of appeal, which I have considered.
Background
- [4]On 7 August 2016, the appellant was driving a Nissan sedan bearing registration 061FQY on Sheridan Street in Cairns. He was not the owner of the car. He had passengers in the car.
- [5]Police intercepted the car and identified the appellant by his driver’s licence. A roadside check revealed that the car’s annual registration had expired, and therefore, it was unregistered and uninsured.
- [6]The appellant was issued with an infringement notice for driving an unregistered and uninsured vehicle and fined $282, and $471, respectively. He elected not to pay the prescribed fine, and rather have the matter dealt with in court.
- [7]The appellant was charged by way of complaint as follows:
- An offence under reg 11 of the Regulation, that: On the seventh day of August, 2015, at Cairns, in the Cairns Magistrates Courts District, Jean Baptiste Dominiq HAINAUT did use, on a road, a vehicle that was not a registered vehicle, contrary to section 11 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010.
- An offence under s 20(1) of the MAIA, that: On the seventh day of August, 2015, at Cairns, in the Cairns Magistrates Courts District, Jean Baptiste Dominiq HAINAUT did drive an uninsured motor vehicle on a road contrary to section 20(1) of the Motor Accident Insurance Act 1994.
- [8]The complaint was heard in the Magistrates Court on 7 November 2016. The appellant appeared unrepresented.
- [9]The magistrate characterised the defendant’s defence as a mistake of law and found the defendant guilty of both charges. In sentencing, Her Honour considered the circumstances of the offences and took into account the appellant’s personal circumstances.[1] Her Honour imposed a good behaviour bond with a recognisance as follows:[2]
“I am going to place you on a good behaviour bond, release you on a recognisance under – in the sum of $400. Conditions: you be of good behaviour and appear for conviction and sentence if called upon within the next 12 months. No conviction is recorded with that order. And as I said, you do not pay the fine if there is no further convictions.”
- [10]The magistrate also ordered the defendant to pay costs of $89.40 for court costs, and the reduced amount of $500 for the complainant’s professional fees.[3]
Mode of Appeal
- [11]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) (“Act”). Section 222(1) relevantly 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]Pursuant to s 223 of the Act, an appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- [13]For an appeal by way of rehearing:
"the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”[4]
- [14]But the court does not merely consider whether or not the magistrate has made an error of fact or law. The rehearing requires this court to conduct a real review of the evidence before it, and make up its own mind about the case.[5]
- [15]Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[6]
Grounds of Appeal
- [16]The appellant appeals, leave to extend time to appeal, against the conviction and sentence in reliance on the grounds of appeal in the notice of appeal, including:
- That the magistrate refused to acknowledge that the appellant was not the person charged with the summary offence in question; and
- That the magistrate proceeded with the case without agreeing to compensate the appellant for answering the questions directed at the person charged.
- [17]The appellant’s third ground was broadly pleaded “that the magistrate should have dismissed the charges against the appellant.” By way of better particularity, and as best as I could glean from the appellant’s outline of argument, I granted leave to the appellant add the following grounds of appeal:
- The magistrate erred in her fact finding and the application of the law in relation to the defences available under s 24 of the Criminal Code 1899 (Qld) (“Criminal Code”) and s 20(3) of the MAIA, and
- The magistrate erred in her discretion in ordering the sum of $500 in professional costs.
Extension of Time
- [18]Pursuant to s 222(1) of the Act, the applicant had one month after the date of the order in which to appeal. Under s 224(1)(a), a District Court judge may, on the application of a party, extend the time for filing a notice of appeal.
- [19]This appeal was filed out of time on 5 December 2016, and the applicant has applied for an extension of time.
- [20]In R v Tait[7], the Court of Appeal explained the considerations relevant to granting an extension of time as follows:
“... 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.”
- [21]The appellant has explained the delay in the application. The appellant says that he was unaware of the limited time to appeal, but acted quickly as soon as he realised the true position. There was no prejudice identified by the respondent and my provisional assessment was that there was merit in the appeal and I have dealt with the appeal grounds below.
- [22]In my view the appellant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeal.
- [23]I allow the application for leave to extend time. In those circumstances, the parties have agreed that the appeal hearing should proceed and be determined in these reasons.
Grounds 1 & 2: Whether the appellant was the proper respondent
- [24]The plaintiff asserts that the magistrate refused to acknowledge that the appellant was not the person charged with the summary offence in question, and proceeded with the case without agreeing to compensate the appellant for answering the questions directed at the person charged.
- [25]The appellant appeared in answer to the charges before the Magistrates Court. The following exchange took place between the appellant and the magistrate at the commencement of the hearing:
BENCH: And we have - is it Mr Hainaut? Is that pronounced right?
DEFENDANT: Yes, Hainaut, yes.
BENCH: Hainaut.
DEFENDANT: Actually, I am not Mr Hainaut.
BENCH: Who are you?
DEFENDANT: I am Jean Baptiste Dominique. My name as recorded in the certificate of birth - - -
BENCH: Yes.
DEFENDANT: Is Jean Baptiste Dominique. The date on my certificate of birth is unknown to me. I never had to ask for it, so I do not know. The name on the - - -
BENCH: John - we have Jean Baptiste Dominique Hainaut.
DEFENDANT: No, this is not my name.
BENCH: All right.
DEFNDANT: My name is Jean Baptiste Dominique. Sorry about that.
BENCH: As I said, we have that in - just on the form. So - - -
DEFENDANT: And there's a form - sorry - - -
BENCH: Yes.
DEFENDANT: Beside the fact that this is not my name - my name is just Jean Baptiste Dominique - they - the spelling is wrong in the way that there is no hyphen between the "Jean" and "Baptiste" and "Dominique" is making - is missing two letters at the end, the U and the E, for some reason. And I never realise that until this matter arise, but I never realised that there was such a mistake on my name. So I just point that out to the court.
BENCH: Where would they get the - all right. So, are you saying your name is Jean Baptiste Dominique?
DEFENDANT: Dominique, yes. This is my name as recorded in a certificate of birth, of which date I do not know.
BENCH: All right.
DEFENDANT: I know my date - - -
BENCH: Yes.
DEFENDANT: - - - the day I was born.
BENCH: Well, presumably the department got the name "Hainaut" from somewhere.
DEFENDANT: This is my - my surname.
BENCH: Yes, that's right.
DEFENDANT: This is my family name.
BENCH: Yes.
DEFENDANT: But it is not my name. My name, as the law stand, is Jean Baptiste Dominique.
BENCH: Dominique.
DEFENDANT: My name was registered on the certificate of birth, in France I presume, and kept in record somewhere else, but it - my certificate of birth states that my name is Jean Baptiste Dominique. That's it.
BENCH: And I take it - - -
DEFENDANT: The surname - - -
BENCH: Is the family name.
DEFENDANT: - - - which is a family name, is not registered on the certificate of birth.
BENCH: You don't have your certificate of birth?
DEFENDANT: I just been aware of the situation on Saturday evening and I had no chance to - to check in any way whatsoever.
BENCH: Are you genuinely known as Jean Baptiste Dominique Hainaut?
DEFENDANT: That's the way people have been calling me.
- [26]It seems to me that the effect of the exchange between the defendant and the magistrate was that, despite the way which the appellant uses his name, the appellant was the person identified as the defendant charged with the summary offence in question.
- [27]This was consistent with ample evidence before the court for the magistrate to find as she did. Both Constable Goodlet and Constable Allen, who testified, identified the appellant as the driver of the vehicle and the person who was handed the Penalty Infringement Notices.[8] The recorded conversation between Constable Allen and the appellant at the time of intercept was also before Her Honour as Exhibit 3. Further, the appellant himself testified about how he was the driver at the relevant time.[9]
- [28]The magistrate concluded, correctly in my view, that the appellant was the driver of the car and properly charged.[10]
- [29]In the second appeal ground, the appellant complains that the magistrate proceeded without agreeing to compensate him for answering the questions directed at the person charged.
- [30]During the hearing, the appellant sought to have the magistrate enter into a contract to compensate him for his fees on the basis that he was forced to answer questions that were intended for the person charged, namely “Jean Baptiste Dominiq HAINAUT”.[11] He argues that by her failure to address his submission, the magistrate, implicitly consented to his request for compensation for taking trusteeship of the estate of the person known as “Jean Baptiste Dominiq HAINAUT”.[12]
- [31]The appellant’s argument is a nonsense, foreign to Australian law and verging on the bizarre.
- [32]The appellant has failed to establish any legal, factual or discretionary error in relation to grounds 1 and 2 of the appeal. Those grounds must fail.
Ground 3: Whether the facts gave rise to a mistake of fact or a mistake of law.
- [33]This ground relates to whether the magistrate erred by finding the prosecution had excluded the defence of mistake under s 24 of the Criminal Code and s 20(3) of the MAIA.
- [34]The determinative issues for the magistrate were whether the prosecution had excluded the defence of mistake of fact beyond reasonable doubt such that:
- The appellant did not honestly mistakenly believe that the car was registered and/or insured; and/or
- That belief was not reasonable in the defendant’s circumstances.
- [35]Of course, a mistake of fact must be distinguished from an ignorance of the law, which, by virtue of s 22(1) of the Criminal Code does “does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.” In Ostrowski v Palmer,[13] the High Court held:
“…without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law rather than to a matter of fact.”
Mistaken state of things
- [36]The onus was on the prosecution to exclude the defence beyond reasonable doubt. The relevant mistaken belief must be in the existence of any state of things, relevantly here, that the car was registered and/or insured.
- [37]Section 24(1) of the Criminal Code provides:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
- [38]As to the offence of driving an uninsured vehicle, the cognate provision of s 20(3) of the MAIA provides:
“It is a defence to a charge of an offence against this section to prove that the defendant had reasonable grounds to believe and did believe the motor vehicle was an insured motor vehicle.”
- [39]These provisions require consideration of whether the defendant’s belief, based on the circumstances as he perceived them to be was held on reasonable grounds (as opposed to whether a reasonable person would have held it.[14] Since the focus is on the defendant’s belief rather than that of a theoretical reasonable person, the information available to the defendant and the defendant’s circumstances are relevant to considering whether a belief was reasonably held.[15]
- [40]The appellant testified that he “assumed” the state of things were such that he was labouring under a mistake and ought to be relieved of the charge. But the respondent contends that the appellant did not turn his mind to any matters to constitute a mistaken belief that he was lawfully driving the vehicle, or if he did so, the magistrate properly found that it was a mistake of law. The appellant in his evidence explained:[16]
“No – no more than three or four minutes that I was driving that car. And the siren went off, and I pulled over very quickly, and I was told that the car was unregistered. I was quite surprised, and I was a bit flabbergasted because in my knowledge of seeing, there was no sticker and there was no way I could check the – whether the car was registered or not. I just assumed that the person who borrowed the car would have asked that question to the owner, and – because she took the car. I just – I assumed that the owner would have said yes, it is registered.”
- [41]Having reviewed the transcript, it seems to me that the magistrate accurately apprehended the evidence to find the following facts in making her decision:[17]
“Essentially what had happened was he was with the daughter and another young lady who had a child. He’d volunteered to help them carry some – because she was vegan they were going to Rusty’s to buy some vegetables and other items – he essentially had volunteered to help them carry the items. The car was someone else’s, a third persons. The lady, it appears, in question had made the arrangements, as I understand, to borrow the motor vehicle. He had been in the vicinity but not taking a particular notice of the matters because he, as I understood his evidence, at no time considered that he was going to actually do the driving. What happened was when they picked it up, the child became distressed and he essentially, he said for a very short period of time, took over the driving.
He was answered in cross-examination prior to taking over, did he ask any questions about the registration? He did not. Did he check it? He did not. Did he make inquiries? No. He was simply, as he said, and I accept it consistent with the police evidence that’s consistent with the recording, that he was fairly flabbergasted, just made the assumption it would be registered. Didn’t – he simply helped out the distressed baby crying. At a later date, and I take it, not there and then before he drove, but at a later date, he constructed that it would be unlikely, he thought, that she would borrow the vehicle without a – simply knowing whether it was registered or unregistered. So largely, I accept is essentially accurate the evidence both of the defendant and the police officers involved.”
- [42]
- [43]The critical question is whether the appellant had the requisite belief founding a mistake of fact.
- [44]
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
- [45]
“… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”[22]
- [46]This is not an exhaustive formula. The court went onto recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:
“… In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”[23]
- [47]As for matters of inference, in Warren v Coombes,[24] the majority of the High Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
- [48]In the present case, the defendant set out on the journey as a passenger and ‘Good Samaritan’ with a view to helping the mother with her market purchases. He had no interest, took no notice and played no part in the conversations preceding the journey between the driver and the mother. He was a passenger in the car during the journey to the markets and for a short time on the return. He did not expect to drive until the he agreed to do so when the mother had to tend to her distressed child. He made no inquiry of her about the registered (and insured) status of the car. The car clearly had a number plate, but there was no other notice of the car’s registered status, since the legislative requirement to display a registration sticker has been abolished.
- [49]
“…it is clear that the only ground the respondent had for her belief when she lent her car was that Hawke had had a licence five or six months previously. That, in my opinion, was not enough without further inquiry to constitute a reasonable ground, and, therefore, on any reading of the section the respondent was rightly convicted.”
- [50]Angas Parsons J also remarked that:[28]
“Not only was Hawke unlicensed on this occasion, but no inquiry was made at all by Mrs. Proudman to ascertain whether he was or was not. She merely went on the assumption that because he was licensed in previous years he was licensed in this year. That is an entirely unwarranted assumption, as every licence has to be renewed each year. I find she should have satisfied herself on this occasion.”
….
I am unable to find on the evidence in the case before us that the respondent had an honest and reasonable belief that Hawke, on the date charged, was licensed to drive a motor vehicle. I agree with the observations of the learned Chief Justice on this aspect of the case. I do not think she ever addressed her mind to the question, and if she had any ground for an honest assumption she had no ground for a reasonable belief.
- [51]On appeal, the High Court agreed with the Full Court of the Supreme Court in the decision to restore the conviction of the appellant convicted by a Special Magistrate on a complaint that she, on 25 November 1940, did permit one Hawke to drive a motor vehicle when he was not the holder of a licence for the time being in force contrary to s 30 of the Road Traffic Act 1934-1939 (South Australia).[29]
- [52]In the present matter, the appellant testified that: I just assumed that the person who borrowed the car would have asked that question to the owner, and – because she took the car. I just – I assumed that the owner would have said yes, it is registered.[30] In cross-examination, he conceded that he did not ask anybody, including the lady who was in the vehicle with him, about the registration status of the vehicle, and that he did not know the owner of the vehicle well at the time.[31] It clearly emerged from the evidence that apart from the registration number plates, the appellant just did not think about the cars registration status when before he drove. Similarly, he also failed to turn his mind to compulsory third party insurance of the vehicle. The clear inference is that the appellant gave no consideration to the registration and insurance status of the vehicle when he went to drive the vehicle. The appellant’s conduct showed an indifference to the state of things; that is, he did not care one way or the other and did not consider whether the vehicle was registered and insured.
- [53]Having reviewed the evidence, I am unable to discern appealable error in her fact finding, and application of s 24 of the Criminal Code and s 20(3) of the MAIA. Therefore, ground 3 will fail.
Ground 4: Whether the magistrate erred in making the costs orders.
- [54]The appellant complains that that it is unjust that he was required to pay $500 in professional costs and $89.40 in court despite the infringement notice being overturned with nothing to pay. The respondent submits that the magistrate properly exercised her discretion under s 157 of the Act.
- [55]Section 157 empowers a magistrates to award costs upon conviction as follows:
“157 Costs on conviction or order
In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.”
- [56]The respondent sought costs as follows:
- $89.40 for filing the complaint and summons pursuant to section 21(2) of the Justices Regulation 2014,[32]
- $1500 for preparation and attendance at the hearing, pursuant to Schedule 2 of the regulations.[33]
- $548 for flights between Brisbane and Cairns and one night’s accommodation, pursuant to Schedule 2, Part 3, section 5 of the Justice Regulation 2014.[34]
- [57]The magistrate ordered the defendant to pay costs of $89.40 for court costs was ordered and the reduced amount of $500 for the complainant’s professional fees.[35]
- [58]This court ought not interfere with a discretionary decision unless it is it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[36]
- [59]Here the defendant’s arguments about his standing was misconceived, and were quickly disposed of the magistrate. The critical issue for determination was whether the prosecution discharged its onus by excluding a defence of mistake of fact. This was all the more challenging for the court in proceedings which involved a litigant appearing in person. The High Court in Neil v Nott[37] said:
“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.
- [60]In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[38]
- [61]Whilst the appellant was ultimately convicted of the complained offence, he successfully overturned the imposition of the fine in the infringement notice. The hearing was the only available avenue for the appellant to demonstrate the mitigating circumstances and thereby exculpate himself from the injustice of the fine subject of the infringement notice. In contrast, whilst the prosecution sustained a conviction, it was unsuccessful in its contention for the retention of the fine. The conduct of the parties to the proceeding before and during the proceeding was otherwise appropriate. The nature and complexity of the proceeding is evident from the judgment and reasons.
- [62]In my respectful view, the magistrates’ discretion miscarried having regard to the appellant’s proper recourse to the court and his relative success in the proceeding. In those circumstances it is not just and reasonable for the appellant to bear the financial burden of the trial.
Order
- [63]In the absence of any identifiable error this court ought not interfere with the conviction, but the appeal was partly successful in relation to the costs decision.
- [64]For these reasons, I order that:
- The application for leave to extend time to file the Notice of Appeal is allowed, and the appeal is allowed in part in respect of costs.
- The costs order made by the Magistrates Court at Cairns on 7 November 2016 is set aside, and in lieu, each party will bear their own costs of the proceeding.
- Otherwise the conviction and orders imposed by the Magistrates Court on 7 November 2016 is affirmed.
Footnotes
[1] Decision T 11/35-47T12/1-6.
[2] Decision T 12/6-10.
[3] Transcript of Decision at page 14/6-7.
[4] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4] per Muir J (Fraser JA & Mullins J agreed). See also White v Commissioner of Police [2014] QCA 121, [8] per Morrison JA (Muir JA & Atkinson J agreed), but contrast Forrest v Commissioner of Police [2017] QCA 132, page 5 per Sofronoff P (Gotterson JA, Morrison JA agreed).
[5] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124, applied in Forrest v Commissioner of Police [2017] QCA 132 at 5.
[6] White v Commissioner of Police [2014] QCA 121, [5]-[8] per Morrison JA (Muir JA & Atkinson J agreed) and Forrest v Commissioner of Police [2017] QCA 132, 135-6.
[7] [1999] 2 Qd R 667, [29].
[8] T29/13-36; T30/4-12; T35/20-39.
[9] T61/1-46.
[10] Decision T 4/40-43.
[11] T11/38-43; T 16/16-20; T 18/39; T26/31-34; T60/41-44.
[12] Appellant’s Outline of Argument at page 3.
[13] Ostrowski v Palmer (2004) 206 ALR 422, 59 per McHugh J.
[14] Cf. R v Julian (1998) 100 A Crim R 430, 434; R v Mrzljak [2005] 1 Qd R 308 at 321, 326; R v Wilson [2009] 1 Qd R 476, [20].
[15] R v Mrzljak [2005] 1 Qd R 308 at 321, 329-30.
[16] T61/24-31.
[17] Decision T4/10-30.
[18] Decision T 8/14-17.
[19] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
[20] Fox v Percy (2003) 214 CLR 118, [26]-[30].
[21] Including Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
[22] Fox v Percy (2003) 214 CLR 118, [28] (references omitted).
[23] Ibid [29]-[30] (references omitted).
[24] Warren v Coombes (1979) 142 CLR 531 at 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127 [25] per Gleeson CJ, Gummow J and Kirby J.
[25] Larsen v GJ Coles & Co Ltd (1984) 13 A Crim R 109.
[26] Dayman v Proudman [1941] SASR 87.
[27] Dayman v Proudman [1941] SASR 87, 92, special leave was refused in Proudman v Dayman [1941] HCA 28 per Rich ACJ, Dixon and McTiernan JJ.
[28] Dayman v Proudman [1941] SASR 87, 93.
[29] Proudman v Dayman [1941] HCA 28.
[30] T61/30-31.
[31] T66/3-6, 21-27.
[32] Decision T 9/13-14.
[33] Decision T 9/15-16.
[34] Decision T 9/17-19.
[35] Decision T 14/6-7.
[36] House v The King (1936) 55 CLR 499, 504-5; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-8; and Norbis v Norbis (1986) 161 CLR 513, 517-19.
[37] Neil v Nott (1994) 121 ALR 148, [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[38] Gallo v Dawson (1990) 93 ALR 479, [481] per McHugh J.