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

1 TRANSCRIPT OF PROCEEDINGS © The State of Queensland (Department of Justice and Attorney-General). Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved. You must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Queensland Courts. 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. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 3 -- 20220510/BSD/DC/32/Smith DCJ __________________________________________________________________________________ 2 JUDGMENT 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. 5 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 10 appearance. Service was proved. The prosecution informed the Court that on the 19 th 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 15 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. 20 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. 25 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 30 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. 35 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 40 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? 45 -- 2 of 3 -- 20220510/BSD/DC/32/Smith DCJ __________________________________________________________________________________ 3 JUDGMENT 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. 5 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? 10 MR EVANS: No, your Honour. Thank you. HIS HONOUR: All right. Thank you both. We will adjourn the Court. 15 ______________________ -- 3 of 3 --