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Dickson v Department of Transport and Main Roads[2022] QDC 118

Dickson v Department of Transport and Main Roads[2022] QDC 118

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE SMITH

No 265 of 2022

DUNCAN ALEXANDER DICKSON Appellant

and

DEPARTMENT OF TRANSPORT

AND MAIN ROADS Respondent

BRISBANE

10.19 AM, TUESDAY, 10 MAY 2022

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

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HIS HONOUR:     This is an unusual matter.  What happened was the appellant was charged with using a mobile telephone, contrary to rule 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.  The matter proceeded in his absence, ex parte, and he was convicted and fined $1200. 

The charge against him alleged that on the 19th of May 2021, at Kippa-Ring on Elizabeth Avenue, he used a mobile phone.  He was holding it in his hand while the vehicle was moving, and other averments were alleged.

The matter came on before the Magistrate on 5 October 2021.  There was no appearance.  Service was proved. 

The prosecution informed the Court that on the 19th of May 2021 at 3.14 pm, police were conducting patrols in Kippa-Ring and it was alleged they had approached and passed the appellant’s vehicle which was travelling in the left lane.  They observed him to be holding a mobile phone.  He told the police that he was picking up the phone to take a photo of the police but was not using the phone.  The Magistrate took into account the circumstances and the relevant provisions of the Penalties and Sentences Act and imposed the penalty referred to earlier. 

On the 5th of October 2021, he lodged an application to vacate a hearing date.  That appears to be a New South Wales form and largely appeared to be unintelligible.  On the 11th of October 2021 the Magistrates Court wrote to him, noting it was not a Queensland document, the grounds were unintelligible and the request was dismissed. 

The appellant, in evidence before me, has explained he could not lodge his application for leave to appeal until after the 15th of January 2022 as he was detained in a health facility in Orange, New South Wales, and he had difficulty accessing any writing materials.  Shortly after his release, he was able to file the application for leave to appeal. 

In the material, he says that he was not using the phone contrary to rule 300 and his vehicle was parked, which is an excuse to rule 300 and, in those circumstances, the charge is not proved. 

In my opinion, he has shown reason for the delay. In the absence of evidence, it is difficult for me to judge the true merits of his alleged defence.  I think, in all the circumstances bearing in mind the submissions and Mr Evans’ very reasonable concessions, it is a matter where it would be in the interests of justice here to allow the application. 

I grant leave to appeal.  I allow the appeal and set the conviction aside and remit the matter for rehearing in the Brisbane Magistrates Court, to be heard by a different Magistrate.  Does that cover the situation?

MR EVANS:   Yes, your Honour. 

HIS HONOUR:   All right, Mr Dickson.  So I’ve allowed your appeal and it is remitted for rehearing in the Magistrates Court.  All right. 

APPELLANT:   Thank you.

HIS HONOUR:   They will give you notice as to when the matter is to be heard.  All right.  No further orders needed at this point?

MR EVANS:   No, your Honour.  Thank you.

HIS HONOUR:   All right.  Thank you both.  We will adjourn the Court.

______________________

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Editorial Notes

  • Published Case Name:

    Dickson v Department of Transport and Main Roads

  • Shortened Case Name:

    Dickson v Department of Transport and Main Roads

  • MNC:

    [2022] QDC 118

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    10 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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