Batty v Queensland Police Service [2019] QDC 51

DISTRICT COURT OF QUEENSLAND CITATION: Batty v Queensland Police Service [2019] QDC 51 PARTIES: BATTY, Joseph George (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: DC 1700 of 2018 DIVISION: District Court at Brisbane PROCEEDING: Appeal against Sentence ORIGINATING COURT: Magistrates Court at Caboolture DELIVERED ON: 18 April 2019 DELIVERED AT: Brisbane HEARING DATE: 21 March 2019 JUDGE: LOURY QC DCJ ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST CONVICTION ON A GUILTY PLEA – where the appellant pleaded guilty in the Magistrates Court to driving under the influence of alcohol and failing to provide a specimen of breathe for analysis – where appellant applied to re-open sentence and set aside conviction for driving under the influence of liquor – whether the appellant has a right of appeal against order of Magistrate refusing application to re-open Justices Act 1886 (Qld) s 147A, s 222 Ajax v Bird [2010] QCA 2, cited Dore & Ors v Penny [2005] QCA 150, cited Long v Spivey [2004] QCA 142, cited Maxwell v The Queen (1996) 184 CLR 501, cited Phillips v Spencer & Anor [2005] QCA 317, cited Schneider v Curtis [1967] Qd R 300, cited Smith v Ash [2011] 2 Qd R 175, cited COUNSEL/ SOLICITORS: A Macadam for the Appellant H R Mangione (Director of Public Prosecutions (Queensland)) for the Respondent -- 1 of 5 -- 2 [1] The appellant pleaded guilty to offences of driving whilst under the influence of alcohol and failing to provide a specimen of breath for analysis on 29 October 2014 in the Magistrates Court at Caboolture. The appellant was fined $900. His licence was disqualified for twelve months. [2] On 16 November 2017, the appellant filed an application under section 147A of the Justices Act 1886 (Qld) to reopen the sentence proceedings on the ground that “the learned Magistrate should not have accepted my guilty plea in respect of charge 1, drive a motor vehicle under the influence of liquor because it was or should have appeared to the Magistrate that I did not understand the nature of the proceedings. Further, when the details of the alleged indicia of the UIL charge were read out to the Magistrate by the Police Prosecutor, the Magistrate should have realised that the alleged facts (a strong smell of alcohol, but nothing more) were inconsistent with my guilty plea, and the Magistrate should have refused to accept my guilty plea on the UIL charge and entered a not guilty plea and set the UIL charge for hearing.” [3] On 23 March 2018, that application was heard. The learned Magistrate (a different one to the Magistrate who convicted the appellant) dismissed the application. [4] On 10 May 2018, the appellant filed a notice of appeal pursuant to section 222 of the Justices Act 1886 (Qld). His grounds of appeal are: 1. The learned Magistrate wrongly interpreted section 147A of the Justices Act 1886 (Qld); 2. The learned Magistrate wrongly applied section 147A to the facts of the re- opening application; and 3. The learned Magistrate wrongly determined that when the alleged indicia of the drive under the influence of liquor charge (a strong smell of alcohol, but nothing more) were read to the original Magistrate on 3 December 2014 by the Police Prosecutor, following an apparent guilty plea by the appellant, those facts were inconsistent with the appellant’s guilty plea and should have resulted in the original Magistrate rejecting the appellant’s guilty plea, entering a not guilty plea and setting the matter down for a hearing and the failure to do this was a ground for the matter to be re-opened to correct the injustice that had occurred to the appellant. [5] Section 222(1) provides that a person aggrieved by an order made summarily on a complaint for an offence or a breach of duty can appeal to the District Court within one month after the date of the order.1 [6] Section 222(2)(c) provides an exception to that general right of appeal if the defendant has pleaded guilty.2 When a defendant enters an unequivocal plea of guilty that person has no general right of appeal. He/she can only appeal on the ground that a fine, penalty, forfeiture or punishment is excessive or inadequate. [7] In Schneider v Curtis,3 Gibbs J (as he then was) with, whom Wanstall and Douglas JJ agreed, said of section 222 that “…it gives a right of appeal not from any order but only from ‘any order made…upon a complaint for an offence or breach of duty.’ The section does not give a right of appeal from any order made in 1 Justices Act 1886 (Qld). 2 Justices Act 1886 (Qld). 3 [1967] Qd R 300. -- 2 of 5 -- 3 proceedings commenced by a complaint but only from ‘an order made upon a complaint’. These words… in my opinion refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of the proceedings instituted by the complaint.” Schneider v Curtis was referred to in Smith v Ash,4 which considered whether a costs order could be appealed under section 222 when the defendant had pleaded guilty. McMurdo P said “…appeals under s 222 are limited to appeals on orders which dispose of the complaint itself”. [8] The appellant’s application, pursuant to section 147A, was not an application disposing of the complaint itself. The application was to set aside the plea of guilty, enter a plea of not guilty and to list the matter for hearing. In my view, the appeal against the decision of the learned Magistrate, pursuant to section 147A, not being an order which disposed of the complaint itself, is incompetent. [9] At the hearing of this appeal, I raised the issue of jurisdiction with the appellant’s counsel and invited further submissions from the appellant and the respondent, having brought to their attention, the decision of Long v Spivey.5 In that case, the critical question in determining whether this Court has jurisdiction was said to be whether or not a plea of guilty was entered to the charge. Davies JA (with whom Williams JA and Holmes J (as she then was) agreed) said, “In order to have a right to appeal pursuant to s222, the respondent was required to prove either that his appeal in respect of the charge…..was only on the ground that the punishment was excessive; or that he had not pleaded guilty or admitted to the truth of the complaint”.6 [10] In Ajax v Bird,7 Fraser JA said, after referring to Long v Spivey and decisions that followed it including Dore & Ors v Penny8 and Phillips v Spencer & Anor9: “Other decisions cited by the applicant illustrate the point that s 222(2)(c) may not preclude an appeal to the District Court where the appellant’s 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’”. (Citations omitted) [11] Despite the invitation to provide further submissions, none have been received from the appellant. No applications for leave to adduce new evidence have been filed, no submissions have been made directed to whether the plea entered by the appellant was equivocal. [12] I have listened to the recording of the proceedings in the Magistrates Court on 29 October 2014. When the matter was called on, the learned Magistrate asked the appellant what he was doing and he responded “pleading guilty”. He repeated “guilty Your Honour”. The charge of driving under the influence of alcohol was read to the 4 [2011] 2 Qd R 175 at [10]. 5 [2004] QCA 142. 6 Ibid at [23]. 7 [2010] QCA 2. 8 [2005] QCA 150. 9 [2005] QCA 317. -- 3 of 5 -- 4 appellant. He was asked if he understood that charge and he responded yes. When asked how he pleaded he said “guilty”. The charge of failing to provide a specimen of breathe was read to the appellant. To that charge he was asked if he understood the charge and he said yes. He was asked how he pleaded and he said he was guilty. The learned Magistrate then asked him if he had entered the pleas of guilty of his own free will. He responded yes. He was asked if anyone had told him that he had to plead guilty and he responded no. [13] The facts placed before the learned Magistrate by the prosecutor were that the appellant had been intercepted driving a vehicle out of the carpark at the Bowls Club. His breathe smelt of liquor. The appellant said that he had been drinking alcohol at the Bowls Club. A positive roadside breathe test was returned. The appellant was conveyed to the Caboolture Police station for the purposes of providing a specimen of breathe. He failed to do so. He declined to be interviewed and said that he wasn’t driving the car. [14] The police prosecutor indicated, in the course of his recitation of the facts, that ordinarily after a case conference the prosecution would elect to proceed with either the charge of driving under the influence or the charge of failing to supply a specimen of breath. The learned Magistrate told the appellant that he might be best served by entering into some negotiations with the police about the charges. He was told that the consequence of pleading guilty to both the charges was that disqualification periods had to be imposed which had to be served cumulatively. He was told the failure to provide a specimen of breathe is treated as seriously as the offence of driving under the influence. The learned Magistrate said to the appellant “it might be that I should vacate that plea of guilty if you request me to do so and to set it for case conferencing and have some negotiations or do you want me to deal with it today”. The appellant said “I probably prefer you deal with it today. I didn’t understand the seriousness of not blowing into the breathalyser. I had done a bit of research and I believed that the police had to give you a prescribed warning about the consequences of your action and then further the opportunity to comply. I was not told what the consequences would be until after I had that charge laid upon me. When I was initially stopped for a breathe test I was actually walking through the carpark.” [15] The learned Magistrate interrupted the appellant and again asked him if he wished him to deal with both matters that day. The appellant said yes. The matter proceeded in the ordinary way. The appellant was asked if he had anything he wanted to say and he responded that when he was asked to be put on the breathalyser he was walking through the carpark and was not in his vehicle. He said that he didn’t believe that there were grounds for him to be breath-tested. However, he complied. He said that’s the reason he refused the breathe test back at the police station. If he was aware of how serious it was, he would have complied. He spoke about his work, his family and his need for a licence. He said that he now understood the seriousness of the offences and that he was sorry for his actions. [16] There is nothing evident in the proceedings before the learned Magistrate to indicate any equivocation in the appellant’s pleas of guilty. Indeed, when offered an opportunity to vacate his pleas of guilty and engage in negotiations with the police the appellant declined. The appellant did not contradict the facts given by the police, other than to say he was intercepted whilst walking in the carpark rather than driving. However, he did not contradict the facts that he had been drinking, that his breathe smelt of liquor and that he had been driving whilst in that state. -- 4 of 5 -- 5 [17] In Maxwell v The Queen,10 Dawson and McHugh JJ said “An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise. The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered” (citations omitted). [18] Despite the learned Magistrate’s invitation, the appellant insisted on pleading guilty as was his right. His pleas were an acceptance of all the elements of the offence. There is no evidence to suggest any equivocation in his pleas of guilty. It follows that the appellant has no right to appeal to the District Court from his convictions. [19] The appeal is dismissed. 10 (1996) 184 CLR 501 at 510. -- 5 of 5 --