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Walker v Queensland Police Service QDC 125
DISTRICT COURT OF QUEENSLAND
Walker v Queensland Police Service  QDC 125
DALLAS FAYE WALKER
QUEENSLAND POLICE SERVICE
District Court, Cairns
12 June 2019
12 June 2019
Morzone QC DCJ
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – whether unequivocal plea – whether sentence manifestly
Justices Act 1886 (Qld) s 222, s 223(1) & 227
R v Tait  2 Qd R 667
Allesch v Maunz (2000) 203 CLR 172
Teelow v Commissioner of Police  QCA 84
White v Commissioner of Police  QCA 121
Maxwell v R  184 CLR 501
Ajax v Bird  QCA 2
Commissioner of Police v James  QCA 403
Davies v Dorfler  2 Qd R 490 at 492.
T. Grasso (Department of Police Prosecution)
D. Walker (self-represented)
- On the first of February 2019 the appellant was convicted on her purported plea of guilty during the course of a contested hearing in the Magistrates Court held in Mossman, of one charge of driving a motor vehicle under the influence of liquor or a drug on the 28 February 2018 in Mossman.
- The appellant now appeals against her conviction on the basis that the plea was vitiated having regard to the nature and her understanding within which it was given.
- The matter came before this Court at the behest of the respondent by an application to strike out on the basis that the appellant was limited in the appeal to one of sentence in circumstances where the plea of guilty was relied upon and was unequivocal. That application was withdrawn at the commencement of this hearing and with the agreement of both parties the matter proceeded to hearing in the appeal.
- I have had the opportunity to have regard to the outlines of argument which have been provided to date as well as further oral submissions by both parties.
- The respondent’s charge was one brought under s. 79(1)(a) of the Transport Operations (Road Use Management) Act 1995. That provision creates the offence of driving under the influence of drugs. The drugs here were of a prescription nature and not otherwise illicit.
- The charge proceeded to trial on a plea of ‘not guilty’ at its commencement, but at a juncture within the trial the Magistrate declared a conflict, which caused him to decide to recuse himself from further presiding in the trial due to his previous professional relationship with the expert medical witness called by the prosecution. The appellant has, during the course of the proceedings, been self-represented but at an earlier stage had some initial advice from a lawyer.
- After an exchange between the Magistrate and the appellant of the potential delay of the matter being heard and finalised in due course she remarked: “Well, I’m just wondering whether I just plead guilty then. I can’t just keep doing this. It’s too much for my health…”. The appellant went on to explain the effect of her defence being that: “She didn’t drive with this in [her] system”, and she indicated the blood test was taken hours after the time relevant to her driving which coincided with a car accident.
- The trial Magistrate drew the appellant’s attention to the effect of a statutory deeming provision, by apparent reference to s 80(16F) of the Transport Operations (Road Use Management) Act 1995, which provides:
80 (16F) Three hours proof of alcohol or drug concentration by laboratory test
Evidence by an analyst or by a certificate referred to in subsection (16B) of the concentration of alcohol indicated to be present in, or of the drug or metabolite of the drug indicated to be present in, the blood of a person by a laboratory test of a specimen of the blood of that person is, subject to subsection (16G), conclusive evidence of the presence of the concentration of alcohol in, or the drug or the metabolite of the drug in, the blood of that person at the time (being in the case of such certificate the date and time stated therein) when the person provided the specimen and at a material time in any proceedings if the specimen was provided not more than 3 hours after such material time, and at all material times between those times.
Note— The reference to drug in this subsection, because of its generality, includes a relevant drug.
- The trial Magistrate then adjourned to allow the prosecutor to show the appellant the relevant provision. Which apparently occurred as confirmed by the prosecutor on the resumption of the hearing. Once the hearing had resumed the following exchange occurred between the trial Magistrate and the appellant:
Magistrate: So have you changed your view?
Appellant: Well – but it does – it doesn’t matter. It looks like –
Magistrate: I can’t give advice.
Appellant: It looks like, by the law, I’m guilty. So it doesn’t matter whether I say I’m not guilty. I didn’t knowingly drive with that in my system because I didn’t have all that in my system when I drove.
Magistrate: Do you want me to re-read the charge to you? Are you going to plead guilty or not guilty?
Appellant: Yes, yes, please, do.
Magistrate: Okay. So the charge is the 28th of February 2018 in Mossman, you whilst under the influence of a drug did drive a car on a road. Are you guilty or not guilty?
Appellant: The law says I’m guilty, your Honour, so I’m guilty.”
- The proceeding then morphed into a sentence based upon the appellant’s own plea apparently accepted by the Magistrate. The prosecutor read the facts to the Court and the Magistrate invited the appellant to indicate whether she agreed, to which she said: “That I was driving with it in my system, according to the law, yes, I was.”
- After hearing the relevant submissions the Magistrate then imposed a fine of $500 and disqualified the appellant from holding or obtaining a Queensland drivers licence for a period of six months.
- The appellant appeals the effect of the conviction.
MODE OF APPEAL
- Appeals from the Magistrates Court to this Court are made pursuant to section 222 of the Justices Act 1886 (Qld). Pursuant to section 223 the appeal is by way of re-hearing on the evidence and any new evidence can only be adduced by leave. The appeal time is provided in section 222 as being one month after the date the order is made.
- The appeal here was filed on 3 April 2019, some two months after the original order, and the appellant seeks an extension of time in which to appeal. In R v Tait, the Court of Appeal explained the considerations relevant to granting an extension of time at paragraph 29. I am satisfied that the appellant has an explanation for the delay in bringing the appeal and the merit of the proceeding is such that there are good grounds of appealing in the circumstances. There is no prejudice identified by the respondent in respect of the appeal and having considered the matter, the appeal has been properly conceded as warranting merit for this Court’s favourable considerable. In those circumstances, I allow the application for leave to extend time and hear the appeal.
- For an appeal under the provisions, the Court undertakes a rehearing on the evidence given in the proceeding before the magistrate. 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 of 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. The process requires that this Court can conduct a real review of the evidence before it, rather than undertake a complete fresh hearing, and having conducted that review, it is encumbered upon this Court to make up its own mind about the case.
Grounds of Appeal
- It is accepted, properly so, that the scope of the appeal is one which is dependent upon there being an unequivocal plea of guilty so as to restrict the rights of appeal to that of manifest excessive sentences. However, where that plea of guilty is vitiated, this Court has power to consider the sentence and hear the appeal in that context. That is whether or not the plea was properly one entered in the Court and, if not, what ought occur as a result of any vitiation.
- In Meisser v R, Brennan, Toohey and McHugh JJ held:
“The Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding, providing the plea is entered in exercise of free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does not act on such a plea, even if the person entering it is not in truth guilty of the offence.”
- In Maxwell v R,, the Court discuss circumstances which could vitiate a plea, including if the accused lacked full understanding of the plea, equivocality, ignorance, fear, duress, mistake or even the desire to gain a technical advantage.
- In Ajax v Bird, Fraser JA stated:
“It is quite clear that where a defendant enters an unequivocal plea of guilty, that person has no right of appeal against conviction under section 222 of the Justices Act 1886…section 222 (2) (c) may not prejudice an appeal to the District Court where the appellants plea was equivocal or upon analysis amounted to a plea of not guilty…or where the appellant had entered a plea of guilty to a charge that clearly did not exist at law” (at [-5]).”
- His Honour further explained the issue in the Commissioner of Police v James, as follows:
“…an appeal to the District Court may be authorised under section 222 (1) on the footing that an equivocal plea of guilty should not be regarded as a plea of guilty or an admission of the kind referred to in section 222(2)(c).”
- As the transcript bares out, the appellant predicated her plea and her later expressions affirm her understanding of the law and her apprehension that she felt trapped by the relevant provision deeming the effect of the blood test referable to the material time here, apprehending that the material time was when she was driving at the time of the car accident. It seems to me that her understanding was clothed in ignorance, despite the assistance and well-meaning effort of the magistrate and by that of the Prosecutor to draw her attention to that relevant provision.
- The provision, nevertheless, did not, by its effect or terms, relieve the prosecution of its onus to prove beyond reasonable doubt, firstly, that the appellant was driving at the material time and, secondly, that at that time she did so under the influence of a drug. That is, unless it was established as a basal position that she did so drive then there was no “material time” upon which the deeming provision could operate. Her case was, as intimated in her exchange with the magistrate, that some or all of the relevant prescription drugs were not in her system, that is, they were not consumed such as to be in her system at the time of driving, from which it could be inferred that some or all of the drugs were consumed after the accident; between the time of the accident and the taking of her blood, upon which the analysis proceeded.
- Further, to the extent that there may be a mixture of drugs in the system, whether taken at different times or their interaction as between them, the appellant’s attention was not drawn to the effect of s 80(16G) of the Transport Operations (Road Use Management) Act 1995, in the following terms:
“(16G) The defendant may negative the evidence mentioned in subsection (16F) or (16FA) if the defendant proves the result of the laboratory test of that specimen of blood or saliva was not a correct result.”
- The appellant, having expressed her plea in the way she did, seems to me to be a clear example of equivocation founded upon her own ignorance of the law, in circumstances where her attention was taken to some aspect of it, which she perceived was damning. Other aspects of the law would have been available to her in aid of her defence. Namely, the prospect of rebuttal by proof as to her conduct in relation to consumption of the drugs or rebuttal by reliance upon s 80(16G) of the Act. The circumstances are analogous to those considered in the Court of Appeal case of Shaw v Yule  QCA 611, where the court accepted that similar circumstances demonstrated an equivocal plea and one that ought not to have been relied upon by the magistrate to proceed to sentence.
- Having acted upon an equivocal plea of guilty, the learned magistrate fell into error by proceeding to sentence instead of adjourning the trial to be restarted before another magistrate on an appointed day.
- For these reasons, in my respectful view, the magistrate erred in proceeding to sentence and imposing a sentence which must necessarily be manifestly excessive in the circumstances, when it was not open to do so.
- Accordingly, I order that:
- The application for extension of time be granted;
- The application to strike out the appeal against conviction is dismissed;
- The appeal against conviction is allowed;
- The conviction and sentenced imposed at first instance in the Magistrates Court at Mossman on 1 February 2019 be set aside; and
- The proceedings are remitted to the Magistrates Court at Mossman for rehearing according to law before a different magistrate.
Judge Morzone QC
 Transcript page 1-16 line 39.
 Transcript page 1-19 line 21.
 Transcript page 1-23, 1-24.
 Transcript 1-26.
 R v Tait  2 Qd R 667.
 Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, ; McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 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  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
 Meisser v R (1994-5) 184 CLR 132 at 141.
 Maxwell v R  184 CLR 501.
 Ajax v Bird  QCA 2.
 Commissioner of Police v James  QCA 403 at .
 Cf. Davies v Dorfler  2 Qd R 490 at 492.
- Published Case Name:
Dallas Faye Walker v Queensland Police Service
- Shortened Case Name:
Walker v Queensland Police Service
 QDC 125
12 Jun 2019