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- Unreported Judgment
Harvey v Commissioner of Police QDC 106
DISTRICT COURT OF QUEENSLAND
Harvey v Commissioner of Police  QDC 106
MICHAEL PHILLIP HARVEY
COMMISSIONER OF POLICE
Magistrates Court Brisbane
28 June 2019
14 June 2019
Devereaux SC DCJ
MAGISTRATES – OTHER PRE-HEARING PROCEDURES – NOTICE TO ACCUSED OF COURT APPEARANCE – SERVICE – where the appellant was served with complaint and summons – where the appellant did not in fact receive the complaint and summons - whether the magistrate erred by hearing the complaint ex parte
Justices Act 1886 (Qld), s 56, s 142A, s 222
Atkin v Commissioner of Police  QDC 224
N Hamilton (sol) for the respondent
Director of Public Prosecutions for the respondent
- On 18 December 2018, the appellant was convicted of failing to stop at a red traffic light. The hearing was conducted in his absence under s 142A of the Justices Act 1886 (Qld). The ground of appeal in the notice of appeal asserts that the appellant did stop at the red light and did not travel through the intersection. In his outline, he asserts he did not receive notice of the court hearing and so was unable to attend. At the hearing of the appeal he made submissions on both issues.
Notice of the court hearing
- I respectfully agree with what McGill SC DCJ said in Guy v McLoughlin & Anor  QDC 17 at :
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. That follows from the structure of section 142A, and is in any event consistent with the general rule in relation to appeals that factual issues cannot be raised for the first time on appeal.
- In Atkin v Commissioner of Police  QDC 224 at , Richards DCJ referred to McGill SC DCJ’s decision in Guy and said that the decision:
…is not authority for the fact that there can be no appeal, merely that new matters throwing doubt on a conviction cannot be raised on the appeal. The appellant in this case has appealed on the basis that the magistrate’s discretion has miscarried. This does not require, in my opinion, a prior application under s 142A(12) to have occurred. If the discretion to proceed under s 142A miscarried then the provisions of the Act have not been complied with and an appeal lies on that basis.
- Section 142A(4) of the Justices Act 1886 (Qld) provides:
- (a)a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and
- (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.
- If the learned magistrate was not satisfied that the appellant was properly served with the complaint or summons, then the decision to proceed under s 142A miscarried.
- The record in the Magistrates Court is short. It comprises a copy of the ‘Complaint – Sworn, and Summons’ with an accompanying oath of service. I have reviewed the short transcript, referred to below.
- The charge was fully particularised in the complaint as follows:
Michael Phillip Harvey being the driver of a vehicle namely a car on a road namely Lutwyche Road Kedron when approaching traffic lights showing a red light and with a stop line at the traffic lights the said driver failed to stop as near as practicable to but before reaching the said stop line…
- The oath of service includes the statement that the deponent served the defendant with copies of the summons and complaint by:
…posting a Notice accompanying summons and a true copy of the within summons to appear to answer a complaint of a simple offence to the defendant at 11:50 am on the 14th day of November, 2018, at the post office at Brisbane addressed to the defendant at [the defendant’s address] being their place of residence last known to the complainant, at least 21 days before the date on which the defendant is, by the summons, required to appear. The address to which a copy of the summons is posted being the address of the defendant last known to me by reason of records held by Director General Department of Transport and Main Roads.
- The respondent concedes that the appellant did not actually receive the complaint and summons. An attachment to an affidavit filed by the respondent confirms the posting of the documents by registered mail, the failed delivery on 19 November 2018 due to no-one being in attendance, the arrival of the documents at the Stafford Heights Post Office, and eventually, on 6 December 2018, the return to sender of the uncollected items.
- The complaint – sworn, and summons was served as required, being posted by registered post. The oath of service comprises evidence that the complaint was properly served. Section 56(1)(a) of the Justices Act 1886 (Qld) provides as follows:
56 Service of summonses
- (1)A summons shall be properly served upon the person to whom it is directed if it is served in accordance with this subsection, that is to say—
- (a)in the case of a summons directed to a person to appear to answer a complaint of a simple offence or breach of duty—by posting (by means of registered post) a copy thereof addressed to the person at the person’s place of business or residence last known to the complainant at least 21 days before the date on which the defendant is, by the summons, required to appear; …
- The deposition in the oath of service complies with the requirement in s 56(4)(a) of the Justices Act 1886 (Qld) which provides as follows:
- (4)Where a summons is served as prescribed by subsection (1)(a)—
- (a)the person who serves the summons shall, in the person’s deposition as to service endorsed on a copy of the summons under subsection (3), state the time and place at which the person posted the copy of the summons; …
- In the circumstances, it was open to the learned magistrate to proceed under s 142A.
Failure to stop at a red light
- The appellant’s outline attaches a copy of the enforcement orders for the fine imposed by the learned magistrate and the offender levy. They are dated 18 December 2018. They show an address for the appellant different from the one he lived at, to which the infringement notice had been directed. This might have contributed to his failure to apply under s 142A(12) of the Justices Act 1886 (Qld). His material does not contain any other explanation. In the circumstances, it seems to me there is no record, in the usual sense, to be reviewed. Apart from the documents I have already referred to I have had access to a transcript of proceedings. After confirming that service had been effected, the learned magistrate proceeded with the matter ex parte pursuant to s 142A, heard the complaint and convicted and fined the appellant.
- The appellant has attached to his written outline a copy of the infringement notice. It includes a photograph showing plainly that his vehicle was stopped at the intersection in front of the stop line. He protests that his failure to stop before the stop line was as a result of the brief duration of the amber light and the speed with which vehicles travel on that road. He protests that the position he stopped in caused no danger to other vehicles and did not impede at all the path of other vehicles at the intersection. Accepting these assertions and understanding the appellant’s frustration at being fined a considerable amount without having the opportunity to contest the charge, I am driven to the conclusion not only that the learned magistrate correctly proceeded under s 142A but also that a finding of guilt was inevitable. In the circumstances, the appeal must be dismissed.
- Published Case Name:
Michael Phillip Harvey v Commissioner of Police
- Shortened Case Name:
Harvey v Commissioner of Police
 QDC 106
Devereaux SC DCJ
28 Jun 2019