Dawson v Commissioner of Police [2016] QDC 343

DISTRICT COURT OF QUEENSLAND CITATION: Dawson v Commissioner of Police [2016] QDC 343 PARTIES: DAVID DAWSON (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: PD 4116/15 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 21 December 2016 DELIVERED AT: Brisbane HEARING DATE: 9 December 2016 JUDGE: Butler SC DCJ ORDER: 1. The convictions and sentences imposed on 27 July 2015 will be set aside. 2. The matters will be remitted to the Magistrates Court at Caboolture for rehearing of both charges. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – VEHICLES AND TRAFFIC – APPEAL AGAINST SENTENCE – proceeding in absence of defendant – whether adjournment should have been granted COUNSEL: The appellant appeared on his own behalf G Wong for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions for the respondent [1] The appellant appeals under s 222 of the Justices Act 1886 (“the Act”) seeking to have his convictions and sentences on two charges set aside and the matters returned to the Magistrates Court for rehearing. [2] The convictions were imposed for charges of: (i) disobeying the speed limit in a school zone on 5 May 2014 (“charge one”); and -- 1 of 9 -- 2 (ii) disobeying the speed limit on 7 September 2014 (“charge two”). [3] A fine of $220 with $87.30 in court costs was imposed on charge one and a fine of $227 with $94.05 court costs on charge two. Grounds for appeal [4] The self-represented appellant advanced as his primary ground of appeal that he was denied the opportunity of appearing before the Court to defend the allegations made against him. [5] The appeal may be legally characterised as an appeal against the learned Magistrate’s exercise of discretion to proceed to conviction and sentence of the appellant in his absence on 27 July 2015. Background [6] The speeding charges relate to incidents on 5 May 2014 and 7 September 2014 respectively. The appellant elected to contest both charges. [7] Charge one was listed to proceed on 12 November 2014 at Caboolture. When the appellant failed to appear, his matter was dealt with ex parte and he was convicted. It is accepted by the respondent that the appellant was not properly served with the summons to appear on 12 November 2014. Therefore a condition precedent to the exercise of the power to proceed ex parte under s 142A of the Act was not complied with. [8] In December 2014, the appellant learnt of his conviction on charge one and applied for a rehearing which was granted and listed for 23 January 2015. He wrote to the Court seeking a postponement as he would be overseas. On 23 January 2015 the learned Magistrate adjourned the rehearing of charge one to 27 March 2015. On that date, the appellant appeared and the Court ordered a brief of evidence be disclosed and set the matter for mention on 15 May 2015. [9] Charge two was initially listed to proceed by hearing on 25 February 2015. On 17 January 2015, the appellant wrote seeking postponement of the hearing of charge two. On 25 February 2015, in the appellant’s absence, charge two was dealt with ex parte under s142A by Magistrate Callaghan and the appellant convicted and sentenced. On 26 March 2015, the appellant sought a rehearing on charge two. That was granted and listed for mention on 17 April 2015. [10] The appellant appeared on 17 April 2015 and Magistrate Bucknall ordered provision of a brief of evidence and listed charge two for rehearing on 27 July 2015. The appellant told the Magistrate he was booked to leave the country on 14 July 2015, but volunteered that he could alter his flight. He agreed he could be present on 27 July.1 [11] On 15 May 2015, the appellant appeared again and asked to vary the date set to hear charge two. Magistrate Bucknall told him that he had made a decision on that previously and was not going to re-open the decision. He told the appellant he needed to alter his travel arrangements. On the same occasion charge one was given a further date of 27 July 2015 for “hearing mention only.” The Magistrate commented that it 1 Affidavit of Daniel Sampey, Exhibit DS-4, p 3, l 11. -- 2 of 9 -- 3 could not be heard on 27 July as charge two was already listed to be heard on that date. [12] On 17 July 2015, the appellant wrote to the Magistrates Court advising he could not alter his travel plans and would depart for the United Kingdom on 18 July 2015. He offered availability in October and/or November 2015. [13] On 27 July 2015 the appellant failed to appear and Magistrate Batts proceeded ex parte to convict and sentence him on both charge one and charge two. [14] Upon his return to Australia on 21 October 2015, the appellant sought and received, from a different Judge of this Court, an extension of time to appeal the convictions and sentences on charge one and charge two. Submissions [15] The appellant’s submissions emphasise his reasons for having to travel to the United Kingdom and relied on the correspondence he sent to the Magistrates Court on 18 July 2015 advising he could not attend. He submits that the learned Magistrate erred in hearing his matter in his absence. [16] The respondent submits the learned Magistrate was entitled to proceed ex parte under s 142A in relation to both charges. It is contended the Magistrate was empowered under s 142A (12B) to restore the original convictions without rehearing the cases, but nevertheless did hear both matters before determining them. [17] Finally, the respondent submits the appellant cannot now appeal to the District Court, as his only recourse was by way of rehearing under s 142A of the Act. Appeal jurisdiction [18] The prosecution relies on the decision in Guy v McLoughlin & Anor2 in support of the submission that the appellant’s only available recourse was to seek a rehearing of the charges under s 142(12). That decision held that on appeal to the District Court, an appellant may not “raise any matter not raised before the Magistrate, or which ought not to have been apparent to the Magistrate at the time of the hearing.”3 His Honour Judge McGill explained this did not mean there is no effective right of appeal and went on to identify various grounds upon which it would be possible to appeal. [19] His Honour said: “An appellant has a right to appeal on the basis that the Magistrate’s discretion has miscarried and that does not require a prior application under s 142A(12) to have occurred.”4 [20] This is an appeal on the ground that the Magistrate, by failing to grant an adjournment of the hearing, fell into error in the exercise of her discretion. Accordingly, an appeal to the District Court is properly available. [21] An appeal to the District Court under s 222 of the Act is an appeal by way of rehearing. The task of an appellate court in conducting an appeal by way of rehearing 2 [2006] QDC 017. 3 Guy v McLoughlin & Anor [2006] QDC 017 at [10]-[11]. 4 [2015] QDC 224 at [9]. -- 3 of 9 -- 4 was recently described by the High Court in Robinson Helicopter Co Inc v McDermott as follows:5 “A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.” [22] The Court of Appeal in White v Commissioner of Police6 conveniently summarised the principles that are applicable in dealing with an appeal under s 222 of the Act: “The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of rehearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.” [23] The court, later in that judgment, commented as follows: “To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.”7 [24] These principles are consistent with those adopted by the Court of Appeal in Teelow v Commissioner of Police8 as applying to appeals against the exercise of discretion.9 [25] This appeal will be determined in accordance with those principles. Identifying the issue [26] On each charge a rehearing was granted under s 142A(12) of the Act by the court, although for different reasons. After various mentions, the matters came before Magistrate Batts on 27 July 2015. Charge two had been adjourned to that date for hearing and charge one had been adjourned for mention only. The appellant concedes he was served with separate notices to appear on that date on each charge.10 [27] Section 142A(15) allows a matter to be heard ex parte “if a person fails to appear before a court after the person is… permitted to go at large without bail, under the Bail Act 1980.” The appellant fell into that category. It follows that the section applied to both charges and the Magistrate was entitled to proceed ex parte on charge one even though 27 July 2015 was a date fixed for “mention only” of that charge.11 [28] The provisions of s 122A in respect to the conduct of a rehearing ordered under subsection 12 are set out in subsections 12A and 12B: “(12A) When a hearing is granted – 5 [2016] HCA 22 at [43]; cited Powell v Chief Executive Officer of Australian Custom Service [2016] QCA 313. 6 [2014] QCA 121 at [6]. 7 White v Commissioner of Police [2014] QCA 121 at [8]. 8 [2009] QCA 084. 9 Applying House v R (1936) 55 CLR 499 at [504] – [505]. 10 Exhibit 5. 11 See Guy v McLoughlin & Anor [2006] QDC 017 at [9]. -- 4 of 9 -- 5 (a) the conviction or order made in the first instance shall, subject to subsection 12(B), forthwith cease to have effect; and (b) the court may proceed with the rehearing forthwith or may set down the rehearing for a later date; and (c) on such rehearing, the court shall have and may exercise all the powers and procedures that it has in the case of an original hearing. (12B) If the clerk of the court, the complainant or the defendant, as the case may be, does not appear at the time and place for which the rehearing is set down, the court may, if it thinks fit, without rehearing the case, direct that the original conviction or order be restored whereupon it shall be restored to have effect accordingly and shall be deemed to be of effect on and from the date it was first pronounced.” [29] The learned Magistrate did not direct restoration of the original convictions under subsection 12B but rather proceeded to rehear the matters. Before doing so, her Honour was required, in the exercise of her discretion, under subsection 12A(b), to decide whether to proceed with the rehearing forthwith or to set it down for rehearing for a later date. [30] The true issue to be determined upon this appeal is whether the learned magistrate’s discretion miscarried when she elected to proceed to rehear the two charges forthwith. [31] While the provisions of s 142A permit a magistrate to exercise her discretion to proceed in the absence of the defendant, the discretion must be exercised judicially. Where, as here, the legislation permits the defendant’s right to be heard to be set aside, the judicial officer needs to take particular care in the exercise of that discretion. As Richards DCJ said in Atkin v Commissioner of Police:12 “Where the right has been excluded by legislation, as is the case here, the judicial officer needs to be particularly scrupulous in ensuring that fairness, as much as possible, applies in the circumstances of the case…” Consideration [32] There is no suggestion on the material that the appellant seeks to avoid the hearing of his charges. Rather, at all times he has insisted on having the opportunity to defend the matters in court. He has expertise in law enforcement and has a particular interest in challenging Queensland’s speed detection methodology. He proposes to lead evidence to challenge the validity of the police speed detection devices. [33] Listing of the appellant’s matters has proved difficult due to his absence in the United Kingdom for up to six months each year. It is understandable that busy magistrates were reluctant to adjourn matters for the lengthy periods the appellant was seeking in order to accommodate his personal arrangements. However, magistrates did grant lengthy adjournments to this appellant on a number of occasions. 12 [2015] QDC 224 at [12]. -- 5 of 9 -- 6 [34] Where an adjournment sought by a party will result in inordinate delay, that will be a relevant consideration in the exercise of the judicial discretion. Ordinarily, to quote an old saying, “justice delayed is justice denied.” That is an important consideration but not the only relevant consideration. It is incumbent upon the judicial officer exercising the discretion to have regard to all relevant considerations.13 [35] The history of this matter, insofar as is relevant to the exercise of the discretion to proceed, may be traced from the appellant’s appearance before Magistrate Bucknall on 17 April 2015. On that occasion the court assigned, for charge two, a hearing date of 27 July 2015. The appellant informed the Magistrate that he was scheduled to leave the country before that date and would be away for five months. He volunteered that he could alter his flight booking. The Magistrate confirmed with him that he could alter it in order to be present on 27 July 2015, and upon obtaining agreement from the appellant, set the hearing of charge two for that date. [36] On 15 May 2015, the appellant appeared before Magistrate Bucknall again, but in relation to charge one. The appellant took the opportunity to seek the adjournment of charge two. He now advises that after he agreed on 17 April 2015 to alter his flight, he learnt it would not be possible to meet the 27 July hearing date due to an important medical appointment his wife had to attend in the United Kingdom on 28 July 2015. He explained this to the Police Prosecutor who spoke on his behalf on 15 May 2015, advising the magistrate that the 27 July listing was not suitable because of the appellant’s need to travel to the United Kingdom so that his wife could obtain medical treatment. A hearing date was sought in January 2016. [37] The learned Magistrate advised the appellant that he had already made a decision in respect of charge two: “You made that application last time. I made a decision.”14 [38] His Honour said he was happy to accommodate him on charge one and eventually set it for mention on the hearing date for charge two, with a view to it being listed for hearing after the appellant’s return from the United Kingdom. [39] The appellant then sought for a second time to raise his application with the magistrate, saying that there were particular reasons for his wishing to leave on 17 July. He was not allowed to expand on that submission. His Honour said: “I’m not going to revisit the other one…. We had the discussion a few weeks ago… you know, you don’t come second in the race and ask for a rerun. That’s not how it works.”15 [40] The learned Magistrate told the appellant he needed to alter his travel arrangements and the listed date for charge two was maintained as 27 July 2015. [41] On 17 July 2015, the appellant wrote a long letter to the Magistrates Court advising he could not alter his travel plans to leave on 18 July 2015, but was available to return to Australia in October or November 2015.16 The thrust of the letter was a request 13 House v R (1936) 55 CLR 499. 14 Transcript 1-3, l 5. 15 Transcript 1-4, ll 5-20. 16 Exhibits 3, DD7. -- 6 of 9 -- 7 for the matter to be heard on his return to Australia in late 2015. A copy was also forwarded to police prosecutions. [42] The appellant’s letter explained that travel on 18 July 2015 was necessary because his wife needed to meet a hospital appointment on 25 July 2015 regarding a knee replacement operation. He detailed the long history of his wife’s medical treatment by the British orthopaedic specialist, including that a previous appointment had been cancelled so that he could attend a court date in Queensland, only to find that the matter did not proceed then as a hearing as he had expected. He outlined that the consequence of cancellation of the appointment on 25 July 2015 would be that his wife would lose her long held position on the knee replacement waiting list. [43] Magistrate Bucknall’s refusal on 15 May 2015 to reopen the application for an adjournment would have been sound if there had been no material change of circumstance. Unfortunately, his Honour did not have the benefit I have of a transcript of what passed on 17 April 2015 and understandably did not recall that the original decision was based upon the applicant’s agreement that he could change his airline booking. By 15 May 2015 the appellant’s position had changed. He was seeking to advance his wife’s need for medical treatment as a justification for the adjournment, a consideration which he says he was unaware of at the earlier time. Although this medical basis was briefly mentioned before the learned magistrate, he appears not to have given it any attention, believing that he had earlier considered and rejected that application for adjournment. Accordingly, the magistrate did not turn his mind to the submission the appellant sought to advance for the grant of an adjournment. [44] The appellant travelled to the United Kingdom on 18 July 2015 and consequently did not appear on 27 July 2015. On that date the police prosecutor appearing before Magistrate Batts placed the following information before the court: “… in relation to both these matters, Mr Dawson said, ‘I’m leaving the country, going back to the UK. Do what you like. It will be your problem.’ We hear them, then he goes back, provides a letter to the court, saying, ‘oops. I was overseas. I was back in the UK’, and then we haven’t heard from him since, so it would be the prosecution’s application for an ex-parte hearing today …” The statements quoted by the police prosecutor, using some poetic licence, appear to relate to earlier appearances on the matter, not to the appellant’s most recent letter. [45] The learned Magistrate had the appellant’s name called, and noted he was present on 15 May 2015 and thus was aware of the court date. Her Honour proceeded to receive the facts of both charges in accordance with subsections 4 and 5 of s 142A of the Act and to convict and sentence on each. [46] Although the prosecutor made passing reference to an earlier letter, the learned magistrate made no mention of the letter of 17 July 2015 and no mention of the application for adjournment contained therein. [47] The letter of 17 July 2015 was received at the Magistrates Court counter on 17 July and placed on the file. It was accompanied by the appointment notice from Tameside National Health Service Hospital in the United Kingdom. The notice advised: “Please be aware if you do not attend your appointment you may be referred back to your GP.” -- 7 of 9 -- 8 It was this provision, especially since an earlier appointment had been cancelled due to attendance at court, that caused the appellant’s concern that his wife would lose her place on the National Health Service waiting list for her knee operation. [48] The learned Magistrate’s file notation refers only to the name being called and other courts being checked for the presence of the appellant. Had the letter of 17 July 2015 been read by her Honour, she would not have expected him to be there. In the absence of any mention of the letter it must be assumed it was not brought to her Honour’s attention. [49] A judicial officer would be justified in refusing to reopen an application already determined by another judicial officer if there had been no material change of circumstances. However, the learned Magistrate did not purport to rely upon Magistrate Bucknall’s earlier decision. Indeed there was no indication on the file that would have caused her to be aware of it. It follows therefore that neither Magistrate Batts nor Magistrate Bucknall had the advantage of turning their minds to the basis being advanced by the appellant for seeking an adjournment. [50] In these circumstances, neither magistrate had regard to a relevant consideration when exercising the discretion to proceed in the absence of the appellant. Had Magistrate Batts been apprised of the information advanced in the appellant’s letter and given it consideration, it may well have been within the legitimate scope of her Honour’s discretion to refuse to adjourn the matter and to proceed to conviction and sentence. Unfortunately, her Honour’s attention was not drawn to the appellant’s application and therefore there was no opportunity for her to have regard to the considerations he sought to rely upon. It follows that the exercise of the discretion to proceed to conviction and sentence miscarried. It therefore falls to this court to exercise the discretion afresh. Exercise of discretion afresh [51] The mere fact that the appellant had a pressing personal commitment was not determinative. The appellant bears the onus of persuading the court that the adjournment should be allowed. Adjournment was sought for an unusually long time period. On the other hand, this is not a case where the bona fides of the applicant are in doubt. When in Australia and properly served, he has always appeared on mention dates. Also, not all the delay in this matter was due to the applicant. He was previously inconvenienced by a mistake of service and in the past changed his international airline booking in order to meet a court date. His justification for seeking the adjournment, on the ground his wife required surgery, adequately explained why he needed to commence his travel before the 27 July date set by the court. Furthermore, this is not a matter where the lengthy adjournment would inconvenience a civilian complainant or any other civilian witness. [52] Informed minds might differ on whether the basis for adjournment advanced by the appellant is sufficient. However, in all the circumstances I am satisfied that adjournment of both charges should be allowed and new hearing dates set. [53] The convictions and sentences imposed on 27 July 2015 will be set aside. The matters will be remitted to the Magistrates Court at Caboolture for rehearing of both charges. -- 8 of 9 -- 9 Orders [54] The orders of the Court will be: 1. The convictions and sentences imposed on 27 July 2015 will be set aside. 2. The matters will be remitted to the Magistrates Court at Caboolture for rehearing of both charges. -- 9 of 9 --