Williams v Commissioner of Police
[2023] QDC 141
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- Unreported Judgment
- Williams v Commissioner of Police[2023] QDC 141
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Williams v Commissioner of Police[2023] QDC 141
Williams v Commissioner of Police[2023] QDC 141
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Commissioner of Police [2023] QDC 141 |
PARTIES: | JOSHUA PHILIP WILLIAMS (appellant) v QUEENSLAND COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D31/22 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Richlands Magistrates Court |
DELIVERED ON: | 17 August 2023 |
DELIVERED AT: | Ipswich District Court |
HEARING DATE: | 9 May 2023 |
JUDGES: | Horneman-Wren SC, DCJ |
ORDER: |
|
CATCHWORDS: | Proceeding in absence of accused – where the appellant had emailed the registry advising that he was unable to attend his hearing due to illness – where that email was not seen by the magistrate – where the magistrate heard the complaint ex parte – where the appellant applied for a rehearing – where the magistrate refused the rehearing application APPEAL – whether the magistrate erred in his discretion to refuse the application for a rehearing under section 142A of the Justices Act 1886 (Qld) Justices Act 1886 (Qld), s 142A, s 222 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 20, s 120, Atkin v Commissioner of Police [2015] QDC 224 Guy v McLoughlin & Anor [2006] QDC 17 House v The King (1936) 55 CLR 499 Ramsay v Watson (1961) 108 CLR 642 |
The appellant appeared in person. Ms J Beckman (legal officer) for the respondent | |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]On 10 October 2022 Magistrate Shearer sitting in the Richlands Magistrates Court convicted the appellant in his absence of an offence against s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 of driving at a speed over the speed limit applying to the driver. The magistrate fined the appellant $300 and did not record a conviction.
- [2]The appellant applied for a rehearing on 31 October 2022 pursuant to s 142A(12) of the Justices Act 1886. On 1 November 2022 Magistrate Shearer refused the application. The appellant appeals to this court.
- [3]For the reasons that follow, his appeal should be allowed, a rehearing granted and the matter remitted to the Magistrates Court for that to occur.
The first hearing
- [4]The entirety of the hearing is recorded in the transcript as follows:
![Williams v Commissioner of Police [2023] QDC 141](/judgmentview/image?name=360105.001.png&id=360105)
- [5]The transcript records that this hearing commenced at 1.11pm.
- [6]The entirety of the magistrate’s reasons for decision are recorded in a separate transcript as follows:
![Williams v Commissioner of Police [2023] QDC 141](/judgmentview/image?name=360105.002.png&id=360105)
- [7]The transcript records that this decision was given at 1.12pm.
- [8]In addition to these reasons recorded on the transcript a stamp affixed to the cover of the Magistrates Court file reads:
“No appearance for the defendant. Service proved. Hearing Ex Parte. I am satisfied that the provisions of s 142A of the Justices Act 1886 have been complied with and the facts as alleged in the complaint constitute an offence as referred to in s 142A and reasonably sufficient particulars thereof are set out in the complaint.
I hear the complaint.
The defendant is convicted.
The conviction is recorded.
He/she is fined $300.
Time to pay 2 months.”
- [9]The only handwritten entries are the striking through of “she”, the inclusion of “$300” as the amount of the fine and the insertion of “2” as the number of months allowed as time to pay. It is to be noted that the stamped order states that the conviction is recorded whereas the order pronounced in the transcript of the decision is that the conviction was not recorded.
- [10]The only other handwritten entries on the cover of the file are where appearances are recorded. That handwritten entry is “NAD 1.11”, which I infer to mean that at 1.11 pm there was no appearance by the defendant.
- [11]There was indeed no appearance by the defendant. There was, however, an explanation for his absence.
- [12]At 7.13am on the day of the hearing, the appellant had emailed the Richlands Magistrates Courthouse in these terms:
“Hi
I am writing to you to inform you that I am unwell and will not be in a position to attend court today.
Please confirm you have received my notice and that the matter will be heard at a future date.
Thanks Joshua Williams”.
- [13]The appellant received an automatically generated reply email. Relevantly, under the heading “Criminal Matters”, it included the following:
“If your email is a plea of guilty requesting a matter to be determined in your absence, then your email request will not be considered until the scheduled court date. If you have pleaded guilty in writing (or completed an online plea of guilty) and would like to know the outcome of your matter, please phone the court registry on (07) 3565 4000 on the day following your scheduled court event.
If your email is a request for an adjournment because you cannot make your scheduled court appearance, then your email will be printed and placed on the court file and considered by the court on the date already scheduled for your matter. It will not be considered prior to this date. It will be a matter for the court as to whether your request is granted or not. If you would like to know the outcome of your matter please phone the court registry on (07) 3565 4000 on the day following your scheduled court event.” (Emphasis added).
- [14]In proceeding to convict and fine the appellant the magistrate was acting under s 142A(4) of the Justices Act 1886.
- [15]The transcript of the hearing demonstrates that the email containing the appellant’s request for an adjournment was not considered by the magistrate before proceeding to deal with the matter ex parte. An examination of the court file transmitted to this court reveals that the email is on the court file. It is the document which has been placed on the file immediately after the Complaint and Summons and immediately before the Verdict and Judgment Record recording the outcome of the hearing. It cannot be concluded with certainty that the email had been placed on the file before the original hearing.
The rehearing application
- [16]On 23 October 2022, the appellant emailed police prosecutions in Richlands in the following terms:
“To whom it may concern,
I am requesting that you provide a ‘brief of evidence’ for the alleged fine in order to better prepare my defence for the eventual hearing.
I attempted to complete this request via your ‘prosecution enquiry form’, however, a number of the particulars that are required to complete said form have not been made available to me at this point. These items include a court number and next court date, given I was unwell (courthouse was informed in writing the day of) and not able to attend the initial court date of October 10th 2022.
I expect that this documentation will include full details of the operator of the speed camera device and all other relevant information, such as full details of any police officers involved in the bringing this [sic] alleged offence against me.
If you would like my request to be provided via another means, such as mail or over the phone, please respond with this clearly articulated.”
- [17]On 24 October he received the following reply:
“Mr Williams
This matter was dealt with in your absence on the 10th October 2022.
Please find attached a copy of the result from that day.
Any further enquiries can be conducted either to the court directly or via your legal representative.
Be aware that any further action regarding this charge has limitations on time.”
- [18]Having been advised of his earlier conviction the appellant, on 31 October 2022, filed an application for a rehearing as permitted by s 142A(12) which provides:
- “(12)Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit.”
- [19]The grounds for reopening were stated in these terms:
“I advised the court (via email) that I was unable to attend court the day the matter was to be hearing due being [sic] quite unwell (food poisoning – medical reason). I expected that the matter would be adjourned to a future date, given the above legitimate notification was provided prior to the matter being dealt with on the day. Furthermore, I believe a number of breaches of legislation have been made in the handling of this case. These are clearly articulated in the attached doc.”
- [20]The appellant’s stated expectation that the matter would be adjourned to a future date was not unreasonable. Although the automatically generated reply he had received from the courthouse to his email on 10 October had stated, correctly, that it would be a matter for the court as to whether his adjournment application would be granted, it also said that his email requesting an adjournment would be printed, placed on the file and considered by the court. Whether or not the email had been printed and placed on the file, a matter of which I cannot be certain, it was certainly not considered by the court.
- [21]Furthermore, the Complaint and Summons with which he had been served contained the following note:
“Please note:
If you appear and plead guilty or plead guilty in writing or fail to appear or enter a plea, the case will normally be dealt with on the return date.
If you wish to plead not guilty, the matter will be mentioned on the return day and a date of hearing will then be fixed. If you plead guilty or are found guilty by the court, the court may order, in addition to any fine imposed, that you shall pay to the complainant such costs as seem just and reasonable.”
- [22]In light of that note and his email to the court on 10 October 2022 it was not unreasonable for him to expect that the matter would not be dealt with that day, whether he was pleading guilty or not guilty.
- [23]On 1 November 2022 Magistrate Shearer dealt with the application for rehearing on the papers. He refused the application and recorded the following reasons:
“No medical evidence has been supplied in relation to the defendant’s failure to appear nor any evidence adduced to suggest he has any arguable defence to the charge.”
The appeal
- [24]The appellant’s Notice of Appeal identifies the decision appealed from as that of 10 October 2022; that is his conviction and sentence order of that day. However, the grounds of appeal raise issues relating to the refusal of the rehearing application. The full grounds of the appeal are as follows:
“The magistrate heard the case and made the ruling ex parte. I was ill the day of court and notified the court by email that I was unable to attend due to being ill (food poisoning). I expected the matter to be adjourned as per my email, however, I later found that it wasn’t and had to apply for a rehearing. The same magistrate rejected my application on the grounds of no medical evidence being supplied or any evidence adduced to suggest I have an arguable defence.
Firstly, the automated email response failed to advise me that a medical certificate was required for a non-appearance. Further to this, attending a GP in the state I was in was not possible (diarrhea). Secondly, hearing a case without the defendant present is a miscarriage of justice and the magistrate has failed his duty of oath. Pursuant to chapter 3 of the Commonwealth of Australia Constitution Act 1990 ‘no man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard’.
Lastly, I am yet to receive a complete ‘brief of evidence’. It is my legal right to have been provided this prior to the hearing. How am I to prepare a defence without having had all of the relevant information and afforded sufficient time to review? At this point, I haven’t even been notified of all parties involved in bringing the alleged offence against me.
At the very least, the magistrate should have ruled that the case be adjourned to a future date.”
- [25]The highlighted passages clearly relate to the re-hearing refusal.
- [26]The appellant’s outline of argument includes the following:
- “1.Court nonappearance – the Richlands Magistrates Court was informed of my inability to attend the morning prior to the matter being heard. This was completed via email which I have attached along with the automated email response that failed to advise me of the need for a medical certificate for the nonappearance. I cannot locate the legislation that states this is required for a nonappearance, in fact I do not believe this exists. Furthermore, attending my regular GP in the state I was in was not possible (diarrhea).”
- [27]Although raised in the context of his nonappearance at the first hearing, and the court registry having failed to advise him of the need for a medical certificate, those matters clearly relate to the magistrate’s reasons for refusing the reopening application.
- [28]The outline of argument also refers, separately, to the magistrate having declined the rehearing application. In that regard, it refers to the magistrate having “stated that no defence was provided in my application and took it upon himself/herself to make a further judgment on the case”.
- [29]The submissions go on to say:
“Given the outcome of my rehearing application, I feel I am left with no choice but to inform you of a portion of my defence. I object to the admission of photo evidence of my privately owned vehicle that I travel in. I have reason to believe this evidence does not comply with the legislation and regulations of the National Measurement Act and National Measurement Regulation.”
- [30]The appellant develops his argument in that regard by reference to alleged inconsistency between the Transport Operations (Road Use Management) Act 1995 (Qld) and various provisions of the National Measurement Act 1960 (Cth), with the latter prevailing over the former to the extent of any inconsistency by operation of s 109 of the Constitution.
- [31]The overall merit of those arguments (and several others raised in the outline) may be put to one side for the purposes of this appeal. What is relevant to this appeal, and which cannot be put to one side, is that the appellant, correctly, identifies that the magistrate’s decision on the rehearing application was based, in part, upon a failure of the defendant to disclose a defence.
- [32]The respondent’s submissions on the appeal engage with those parts of the appellant’s submissions relating to the decision to refuse the rehearing application (as well as those relating to his conviction at the first hearing). The respondent’s submissions accurately identify the first of the appellant’s appeal grounds as “Lack of Procedural Fairness”. In dealing with that ground as it related to the rehearing application, the respondent submits:
- “8.3The rehearing application was declined: the court may grant an application by a defendant for a rehearing of their complaint for any such reason as they consider proper. In this matter, the learned magistrate rejected the application on the basis that no medical evidence was provided to excuse the appellant from appearing and that no evidence had been provided to demonstrate a defence to the charge. The learned magistrate was well within his discretion to dismiss the application on this basis. The legislation states that the magistrate ‘may’ grant the application, not that the magistrate ‘must’ or ‘should’; the decision is entirely at the discretion of the magistrate.”
- [33]
“A person who is convicted of 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 an 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.”
- [34]
“That statement 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.”
- [35]In this case, the appellant, representing himself, has raised in his Notice of Appeal matters relevant to the original decision made under s 142A(4) and to the decision to refuse the rehearing application under s 142A(12). This is not a case, such as Atkin, where no rehearing application was made. In my view, the appellant has sufficiently raised in his Notice of Appeal a challenge to the decision to refuse that rehearing application.
The appeal against the rehearing refusal should be allowed
- [36]Although, as the respondent submits, the decision of the magistrate on the application for a rehearing was entirely at his discretion, it was not an unfettered discretion: the magistrate was required to exercise it judicially. As Starke J explained in House v The King[3]:
“But the sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge. He has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”
- [37]In House, the joint judgment of Dixon, Evatt and McTiernan JJ explained the two kinds of error into which a judicial officer exercising a discretion may fall. The first kind is:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”[4]
- [38]In my view, in refusing the rehearing application, the magistrate failed to exercise his discretion judicially, according to rules of reason and justice. He also fell into error by allowing irrelevant matters to guide or affect him and by failing to take into account material considerations.
- [39]The magistrate’s recorded reason that “no medical evidence has been supplied in relation to the defendant’s failure to appear” is, in and of itself, correct, especially if it is intended to refer to an absence of expert medical evidence.
- [40]That, however, is not the same as there being no evidence supplied of a medical reason for the appellant’s failure to appear. By (at least) the time of the rehearing application, the appellant’s email stating that he was unable to attend on the original date of hearing because he was unwell was on the court file. What was known, or upon a thorough examination of the court file ought to have been known, by the magistrate when he came to consider the rehearing application was:
- that the appellant had informed the court registry of his inability to attend court on the day of the original hearing because he was unwell;
- that his request for an adjournment had not been considered before the decision was made to convict and sentence him in his absence;
- that it was not the case, as had seemingly been presumed at the original hearing by the magistrate, that the appellant had simply failed to appear;
- that in his rehearing application the appellant had elaborated on the medical reason for his absence saying that it had been because of food poisoning;
- that it was a full two weeks after the original hearing that the appellant was informed by police prosecutions that the matter had been dealt with in his absence.
- [41]That the matter had been dealt with two weeks earlier given the notes to the summons and having contacted the court to explain his inability to attend that day due to illness, and having received the court’s automated response that his request would be considered by the court, the appellant had a reasonable expectation that the matter would be mentioned on that occasion and a hearing date in the future set.
- [42]To the extent that the magistrate considered at all the appellant’s explanation that it was for reasons of ill health that he had not attended, it was only to the extent that there was otherwise no medical evidence. He did not consider the reason advanced, of itself, at all. Nor did he consider those other matters set out above. Had he done so, the magistrate would have considered the absence of any such expert medical evidence in its proper light. Considered in that light, the absence of such evidence is understandable. Furthermore, it illuminates the potential lack of value of such evidence even if it had been provided.
- [43]As the appellant has elaborated in his outline of argument on the appeal, the physical state in which he was in made attending his GP on that day not possible. Unless the appellant consulted a doctor at the time at which he was actually unwell, in the absence of subsequent diagnostic testing which may confirm an illness suffered at an earlier time, any medical opinion expressed by a doctor as to the effects of the illness upon the appellant, and particularly on his ability to have attended court, would have been based upon the appellant’s self-reported illness. In the absence of acceptance by the magistrate of the appellant’s own statements about those matters, the medical opinion expressed upon them would be of little or any value[5]. This certainly would be so if it were only after having been informed that the matter had been dealt with two weeks earlier that the appellant sought out such medical evidence to support his rehearing application. The value of that evidence would be of no greater weight than the appellant’s own statements as to his health on that day.
- [44]In basing his refusal of the reopening application on the absence of medical evidence in relation to the appellant’s failure to appear, the magistrate has acted on a wrong principle. He has also failed to appreciate that the appellant was denied procedural fairness on the occasion of the original hearing because his request for an adjournment had not been considered.
- [45]The other basis for the magistrate’s refusal of the rehearing application, being the appellant’s failure to adduce evidence to suggest that he has any arguable defence to the charge, also has several flaws.
- [46]Had the appellant appeared on the first hearing date and entered a plea of not guilty, or otherwise indicated an intention to contest the charge, his right to do so would not have been conditioned upon his demonstrating an arguable defence. He was to be presumed innocent and it would have been for the prosecution to prove its case against him. Under s 120(7) of the Transport Operations (Road Use Management) Act 1995 a defendant may challenge the accuracy of a photographic detection device or the image or video made by such device upon giving written notice of the challenge to the prosecution. That notice need only be given at least fourteen days before the date fixed for the hearing: s 120(8). The magistrate’s refusal of the rehearing application failed to take that into account and has deprived the appellant of the opportunity of such challenge.
- [47]Where it was known to the magistrate that the appellant’s request for an adjournment for reasons of illness had not been considered on the date of the original hearing, to condition the granting of a rehearing upon the adduction of evidence suggestive of an arguable defence was, in this case, to act on a wrong principle.
- [48]The wrongness of these principles upon which the magistrate acted is further demonstrated when it is understood that the magistrate’s decision was not only to refuse the appellant the opportunity to be heard as to whether he was guilty of the offence, but also to be heard as to what penalty ought be imposed upon him. This is most demonstrable in respect of the second wrong principle; the purported failure to adduce evidence suggestive of an arguable defence. This could only go to that part of the magistrate’s decision to convict the appellant. It could not go to that part of his decision which fixed a fine of $300; $117 greater than, or 164 percent of, the “ticket penalty”. Part of the magistrate’s reasoning for fixing that level of penalty, to the extent to which reasons are exposed in the brief decision, was that “there is no discount for remorse, and he has elected to bring it to court”. Those reasons were based upon the magistrate’s understanding of the circumstances at the time of the initial hearing. At that time, the magistrate seemingly did not know (or at least did not consider) that the appellant had sought to have the matter adjourned because of ill health. It is clear that the magistrate impugned the appellant’s failure to appear as a demonstration of a lack of remorse. The magistrate also appears to have considered the fact that the appellant had elected to bring the matter to court but then simply failed to appear as a matter relevant to fixing a fine.
- [49]By the time the magistrate came to consider the rehearing application, both those matters upon which he had acted in fixing a $300 fine had been called into question. His failure to consider those, or any, matters relevant to penalty meant that he also failed to take into account relevant considerations in the exercise of his discretion to refuse the rehearing application.
- [50]For all these reasons the exercise of his discretion miscarried. The magistrate’s decision must be set aside. The only proper exercise of the discretion according to rules of reason and justice is to allow the application for rehearing. The matter will be remitted to the Magistrates Court for that hearing to occur.
- [51]Because I am of the view that the appeal against that refusal should succeed, it is not necessary further to consider the appeal from the original decision. The effect of this court ordering a rehearing of the complaint under s 142A(12) is that, by operation of s 142A(12)(a), the conviction and sentence made in the first instance shall forthwith cease to have effect.