Ban v Dunne [2014] QDC 232

DISTRICT COURT OF QUEENSLAND CITATION: Ban v Dunne [2014] QDC 232 PARTIES: HAJNAL DALIA BAN (applicant/appellant) v TIMOTHY PAUL LACEY DUNNE (respondent) FILE NO/S: 204/14 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court, Beenleigh DELIVERED ON: 16.10.14 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Farr SC DCJ ORDER: 1. The application for leave to extend the period of time to file a Notice of Appeal against both conviction and sentence in relation to Charges 1, 3 and 4 is refused. 2. The application for leave to extend the period of time to 21 January 2014 to file a Notice of Appeal against conviction in relation to Charge 2 is allowed. 3. In relation to Charge 2: (i) The appeal against conviction is allowed; (ii) The verdict of guilty is set aside; and (iii) A verdict of not guilty is entered. 4. I will hear the parties as to costs. CATCHWORDS: APPLICATION FOR EXTENSION OF TIME TO APPEAL – consideration of Tait – onus on Applicant to show good reason for delay and is in the interests of justice to grant extension – factors to consider when exercising judicial discretion - where no reasonable excuse for delay but appeal had reasonable prospects of success – where no prejudice to the respondent - where strict compliance with the Rules would result in an injustice on one charge - where leave granted on one charge. -- 1 of 29 -- 2 APPEAL AGAINST CONVICTION AND SENTENCE– where councillor failed to disclose relevant interest - where plea not taken but no injustice occasioned – where alleged lack of disclosure not particularised – where admissions made in pleadings are inadmissible - where notice pursuant to Bail Act 1980 irrelevant - where prosecution not required to call chief executive officer- where no prejudice was occasioned by virtue of a refusal to stay proceedings- where the Local Government (Operations) Regulation 2010 lawfully contains offence provisions- where sentence imposed not manifestly excessive – where convictions should be recorded – high onus on publicly elected officials to comply with legislative requirements – where appeal successful on one charge. COUNSEL: B I McMillan for the respondent SOLICITORS: The applicant/appellant was self-represented Crown Solicitor for the respondent [1] The applicant was convicted in the Beenleigh Magistrates Court on 27 March 2012 of four charges of breaching s 107(2) of the Local Government (Operations) Regulation 2010 (“the Regulation”). On each of Charges 1 and 2 she was fined $1,000.00, on Charge 3 she was fined $750.00, and on Charge 4 she was fined $700.00. She was also ordered to pay costs in the fixed amount of $5,000.00. Convictions were recorded. [2] The applicant now seeks an extension of time to appeal against those convictions and sentences. [3] Her grounds of appeal, set out in the Notice of Appeal filed on 21 January 2014 are: 1. Plea not taken at hearing as required pursuant to s 145 of the Justices Act; 2. Lack of disclosure; 3. Inadmissible evidence in relation to admissions made in pleadings in separate proceedings; 4. Punishment/sentence manifestly excessive; 5. Notice not given pursuant to s 14A of the Bail Act 1980; 6. Specific charges under the Local Government Act/Regulations; 7. Stay of Proceedings not granted; 8. Local Government Act/Regulations cannot imposed [sic] criminal sanctions; 9. Hearing and Appeal outside of time. Background [4] On 31 October 2011 the respondent made a complaint under the Justices Act 1886 (‘the Justices Act’) against the applicant, who at the relevant time was a Logan City councillor, alleging five offences against s 107(2) of the then Local Government (Operations) Regulation 2010.1 1 Repealed on 14 December 2012 by the Local Government Regulation 2012 -- 2 of 29 -- 3 [5] Section 107(2)2 created an offence if a councillor did not inform the chief executive officer of a local government of their (the councillor’s) interests or the correct particulars of their interests, in the approved form, within 30 days after the councillor knew of the interest or the correct particulars. [6] The applicant answered the Summons issued with the complaint and made various applications during hearings on 2 December 2011 and 11 January 2012. [7] The charges were ultimately heard in the Magistrates Court at Beenleigh on 29 February 2012. The applicant represented herself. At the conclusion of that hearing the Magistrate adjourned the matter until 9 a.m. on 15 March 2012 for judgment. [8] Some time after the hearing on 29 February 2012 the Magistrate notified the parties that the matter was to be mentioned on 8 March 2012. On that date the Magistrate referred to materials provided to him by the applicant on 2 March 20123 and detailed a number of matters that arose from those documents. He invited the parties to make written submissions in relation to those matters by 15 March 2012. The matter was again adjourned to that date.4 [9] The applicant failed to appear on 15 March 2012. [10] The applicant appeared the next day on 16 March 2012 and made further submissions and applications. At the conclusion of that hearing, she departed the court without leave. The Magistrate subsequently issued a warrant for her arrest.5 [11] The applicant again failed to appear on 23 March 2012 as required. She was arrested later that day and was brought before the Magistrates Court at Brisbane where she was granted bail. [12] On 27 March 2012 the Magistrate found the applicant guilty of four charges. (Counsel for the prosecution acknowledged in closing submissions that the Court could not be satisfied on the evidence before it that Charge 5 had been proved and conceded that that charge should be dismissed).6 Application for extension of time [13] The Notice of Appeal was filed on 21 January 2014. [14] The applicant also filed a Notice of Application for Extension of Time for Filing Notice of Appeal to a District Court Judge on 21 January 2014. That document sets out the applicant’s grounds for her application in terms similar to the grounds of appeal and refers expressly to the Notice of Appeal. 2 The equivalent provision in the current Local Government Regulation 2012 is s 292. 3 Transcript of proceedings on 8 March 2012 at 1-2 line 50 to 1-4 line 40. 4 Transcript of proceedings at 1-5 lines 10 to 50. 5 Transcript of proceedings on 16 March 2012 at 4-9 line 1 to 4-18 line 10. 6 Transcript of proceedings on 29 February 2012 at 1-130. -- 3 of 29 -- 4 [15] The time limitation for commencing an appeal pursuant to s 222(1) of the Justices Act expired on 27 April 2012. [16] Section 224 of the Justices Act empowers a District Court Judge to extend the time for filing a Notice of Appeal. [17] In R v Tait7 (“Tait”) the Court of Appeal set out the considerations relevant to an application for extension of time to appeal as follows: “… the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one.”8 [18] In Spencer v Hutson9 Keane JA said: “The prescribed time limits for appeals serve the important purpose of bringing finality to litigation. They are not lightly to be ignored. An applicant for an extension of the time for bringing an appeal must show that there is good reason for the court to relieve that party of the consequences of the expiration of the prescribed period for bringing an appeal. A demonstration that there is a good reason to extend time will usually involve an explanation for that party’s delay.” [19] In Attorney-General for the State of Queensland v Barnes & Anor10 Atkinson J cited with approval comments made by Muir J in Beil v Mansell (No 1)11 where his Honour observed that the criteria the Court will have regard to on an application to extend time, noting that the discretion, whilst unfettered, must be exercised judicially, included the following factors: (a) the length of time that has elapsed since the Notice of Appeal should have been filed; (b) a satisfactory explanation for the delay; (c) any prejudice suffered by the respondent; and (d) the merits of the substantive appeal.12 [20] Atkinson J also referred to the following comment of Fraser JA in Creswick v Creswick and Ors; Tabtill Pty Ltd and Ors v Creswick13: “An applicant for such an extension must show that strict compliance with the rules will work an injustice, having regard to the circumstances including the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, and the prospects of the applicant succeeding in the appeal.” 7 [1999] 2 Qd R 667. 8 Ibid at [5]. 9 [2007] QCA 178 at [28], citing the judgment of Muir J in Beil v Mansell (No 1) [2006] 2 Qd R 199. 10 [2014] QCA 152. 11 [2006] 2 Qd R 199 at [40],citing Chapman v State of Queensland [2003] QCA 172 at [3] and Queensland Trustees Ltd v Fawckner [1964] Qd R 153. 12 See also Di Iorio v Norris [2010] QCA 191 at [4]. 13 [2011] QCA 66 at [15], citing Gallo v Dawson (1990) 93 ALR 479 per McHugh J (affirmed in Gallo v Dawson (No 2) (1992) 109 ALR 319). -- 4 of 29 -- 5 Delay [21] The applicant has provided the following reasons for the delay in filing the Notice of Appeal14: (a) She moved house three times between April 2012 and January 2014, which therefore required her to box all of her files relevant to this matter and to then refile them upon moving into new premises; (b) During 2012 and 2013 she had numerous other trials and appeals to prepare for and contend with; and (c) She had some health issues including breaking a toe in April 2012 which did not “heal properly”. She also had a burst ovarian cyst which caused tremendous pain at some undefined time. She also attested to suffering from other minor health issues, particularly over the six to eight months preceding January 2014, including chronic fatigue, the cause of which was not discovered until she had a severely infected tooth extracted at an undefined time. [22] The delay in filing the Notice of Appeal is substantial, being some 21 months out of time. [23] The respondent has submitted that the applicant has failed to offer any good reason to account for that significant delay and I agree. The explanations proffered provide no reasonable excuse to the applicant for such an extraordinary delay in the filing of the requisite notice. [24] Having said that, the applicant’s principal argument appears to be, that having regard to the second limb of the test in Tait, the appeal has reasonable prospects of success for the various reasons set out in her Outline of Submissions. [25] I understand that the parties are content that I proceed to assess the prospects of success of the grounds of appeal and they have each made full written submissions in that regard. I note also that they both have submitted that no oral submissions are necessary in the matter, and that the court can proceed on the written material only. Having read all of the material I agree that that is an appropriate course to adopt. Appeal ground 1 – plea not taken at hearing as required pursuant to s 145 of the Justices Act 1886 [26] The applicant has submitted that her plea was not taken at the hearing in accordance with s 145 of the Justices Act. [27] At paragraph [1.0] on p 3 of the Notice of Appeal the applicant further asserts that s 145 requires: “that where a defendant is present at the hearing it is (sic) mandatory and invariable rule of practice in courts of summary jurisdiction that the substance of the complaint be stated to the defendant and the defendant be asked how she/he pleads (sic) a plea 14 Affidavit of Hajnal Dalia Ban filed on 30 January 2014. -- 5 of 29 -- 6 to be taken at the hearing imposes duties for the protection of the accused persons and may not be waived.” [28] Section 145 provides: “145 Defendant to be asked to plead (1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads. (2) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.” [29] The respondent has acknowledged that it is implicit in the terms of s 145 that at the hearing of a complaint the Magistrate should take a plea from the defendant. A review of the transcript reveals that that did not occur on 29 February 2012, the day of the trial. [30] The respondent also concedes that the transcripts of the associated proceedings in this matter reveal that the applicant was not called upon at any prior time to formally enter a plea in response to the charges against her. [31] The applicant submits that compliance with the provisions of s 145 are mandatory and that failure to do so renders any subsequent hearing a nullity. [32] This issue has been comprehensively examined in recent times by Henry J in Commissioner of Police (Qld) v Magistrate Spencer & Ors15 where his Honour said at paragraphs [48]-[57]: “[48] What is the consequence of non-compliance with s 145? Is it an irregularity of such a fundamental character as to automatically render what follows a nullity or will the consequences vary according to the circumstances of the case? [49] Despite divergences in contemporary judicial opinion these questions were authoritatively resolved in Queensland in 1965 by the Full Court in Todhunter v Zacka, ex parte Zacka where, inter alia, a plea had not been taken in accordance with s 145 prior to a summary trial. The Full Court discharged the order to review concluding that there had not been a fundamental defect in procedure that was fatal to the validity of the proceedings. Hanger J and Douglas J, with each of whose reasons Sheehy ACJ agreed, distinguished reasoning in the English case of Stefani v John to the effect that summary jurisdiction derives from statute and that a court which does not follow all of the 15 [2013] QSC 202. -- 6 of 29 -- 7 requirements of that statute in determining cases summarily will lack jurisdiction. Rather, their Honours adopted the reasoning of the High Court in Munday v Gill, where Gavan Duffy and Starke JJ observed: ‘No definite principle can be extracted from these cases. In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere. Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing. The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances.’ [50] Consistently with the High Court’s reasoning in Munday v Gill, Douglas J acknowledged in Todhunter that there can be irregularities which take away jurisdiction even though there has been waiver but did not regard non-compliance with s 145 as falling into that category. [51] A different view was expressed in the District Court in Rowen v Strophair, by Andrews DCJ, as he then was, who distinguished Todhunter on the basis it was dealing with an irregularity in the manner of taking evidence. However, the irregularities in Todhunter included a failure to comply with the requirements of s 145. Admittedly, unlike the present case, it was concerned with the consequences of non- compliance with s 145 where the matter below had proceeded as if there had been a plea of not guilty, but so too was Rowen v Strophair. The fact that the present matter proceeded as if there had been a plea of guilty provides no logical basis to distinguish the reasoning in Todhunter. If s 145 was a provision of such a kind that a failure to comply with it would be automatically fatal to the validity of the ensuing proceedings then it would have that effect whether the ensuing proceedings was a trial or a sentence. It is clear from Todhunter that s 145 is not a provision of that character and that the consequences of non-compliance will vary according to the circumstances of the case. [52] In Rowen v Strophair Andrews DCJ followed the reasoning in Stefani v John notwithstanding that in Todhunter that reasoning had been distinguished by the Full Court, which preferred the High Court’s reasoning in Munday v Gill as -- 7 of 29 -- 8 apposite. In Daly v Barlow, Hoare J disagreed with the reasoning of Andrews DCJ, observing that the application of the Full Court’s approach in Todhunter should have led to an opposite result than that reached by Andrews DCJ. [53] Hoare J explained in Daly v Barlow that non-compliance with s 145 was not of itself a fundamental defect because s 145 is a procedural provision rather than a provision conferring substantive rights. His Honour observed: ‘The approach which I find useful in the present case is to distinguish between substantive rights and procedural provisions. For instance, notwithstanding the provisions of s. 145 of The Justices Act, I can see no objection to a defendant being dealt with summarily, saying, ‘I know precisely what the charge is. There is no necessity to read the complaint over to me. I admit the charge.’ Likewise, if a defendant is represented by counsel or solicitor, I see no reason why the latter should not follow the time-honoured formula and say, ‘I take the complaint as read and plead guilty.’ There is no reason why counsel or the solicitor should not speak for his client: see R. v. Salisbury & Amesbury Justices. In neither of these suggested instances had the letter of s.145 been followed but the provision is a procedural one and I can see no reason whatever why the requirements of a mere procedural provision should not be waived.’ (citations omitted) [54] The remarks of Hoare J ought not be understood as encouraging waiver of compliance with s 145. His Honour was merely explaining that if compliance with s 145 has been waived there is no reason why the non-compliance will of itself render the ensuing proceeding a nullity. However, as was emphasised by the High Court in Munday v Gill, the fact of waiver is not conclusive. Waiver will not eliminate other potential reasons why a conviction in the wake of non- compliance with s 145 may be interfered with. A risk with waiving compliance with s 145 is not that the non- compliance will of itself negate the outcome of the proceeding but that it will obscure some other feature that will. [55] The mischief which s 145 is most obviously directed at avoiding is wrongful conviction resulting from a misunderstanding of the substance of the charge and whether the defendant intends to plead guilty or not guilty to it. For example, to draw upon Hoare J’s reference to a defendant saying, ‘I know precisely what the charge is’, a defendant may think he or she knows what the charge is, but -- 8 of 29 -- 9 be wrong. Such misunderstandings may only become known belatedly, if at all. At worst, they may result in a miscarriage of justice with the defendant being wrongly convicted and punished. Even if discovered in the course of the proceeding, in time to stop and start again, such misunderstandings will still result in a waste of court time and resources, which compliance with s 145 would have prevented. [56] Despite repeated judicial emphasis of the desirability of compliance with s 145, a perception may linger in the busy jurisdiction of the Magistrates Court that time consuming compliance with s 145 is less important where defendants are legally represented because there is little risk of the misunderstanding and associated injustice which s 145 is obviously directed at minimising. However, legal representatives are not immune from misunderstanding and in any event the statutory procedure set out in s 145 does not discern between whether or not a defendant is legally represented. The safest and correct course, even where defendants are legally represented, is to comply with the statutory procedure. [57] In the present matter his Honour was correct in concluding s 145 had not been complied with but erred in concluding that the non-compliance with s 145 of itself meant the court had no jurisdiction to convict and that its orders were a nullity.” [33] In this current matter the applicant has not identified any misunderstanding or injustice that has allegedly been occasioned by the non-compliance with s 145. Rather, the effect of her submission is that the “mandatory” nature of s 145 must inevitably result in her appeal being successful. [34] Furthermore, the applicant’s conduct on the various occasions the complaint came before the Court below both prior to the trial and during the trial, provided a clear basis upon which the Magistrate could properly infer that the applicant understood the substance of the charges against her and intended to plead not guilty and contest the charges at trial. [35] She appeared before a Magistrate on 2 December 2011 in answer to the summons served with the complaint. On that occasion counsel for the respondent informed the Court that he had had a brief conversation with the applicant and understood she wished to plead not guilty in relation to all five charges and have the matter listed for hearing.16 The applicant was present during those submissions and did not attempt to correct or amend the record in relation to her intention to enter pleas of not guilty. The charges were not read to the applicant in full on that occasion. The learned Magistrate listed the matter for hearing at 9 a.m. on 11 January 2012.17 16 Transcript of proceedings on 2 December 2011 at 1-2 line 1 to 1-3 line 30. 17 Transcript of proceedings on 2 December 2011 at 1-2 lines 19 to 21. -- 9 of 29 -- 10 [36] The applicant next appeared on 11 January 2012. On that occasion the Magistrate read the charges to the applicant and asked if she wished to enter a plea.18 The applicant did not enter a plea despite that invitation, preferring to make an application. The matter was adjourned for further mention until 15 February 2012 when the Court was to hear any further and final arguments on disclosure; and the charges were listed for hearing on 29 February 2012.19 [37] On 29 February 2012 the Magistrate again read the charges to the applicant,20 but she was not asked how she pleaded. [38] Furthermore, during the proceedings on 29 February 2012 the Magistrate confirmed that the applicant was legally qualified. The following exchange occurred21: “BENCH: Ms Black, I understand from an advertisement I saw from a – an article I saw in the paper some years ago, that you were actually admitted to practice as a barrister. DEFENDANT: Correct.” [39] There is no doubt the applicant has identified a procedural error in relation to the provisions of s 145. There has been no mischief however of the kind identified in Commissioner of Police (Qld) v Magistrate Spencer & Ors. The charges were read to the applicant by the Magistrate on two separate occasions and she had the opportunity to properly and fully defend those charges. Furthermore, no prejudice has been identified as a result of the technical defect in the proceedings below. [40] The charges against the applicant alleged simple offences supported by detailed particulars. By her conduct in the proceedings, she demonstrated a clear understanding of the charges, which was no doubt augmented by the frequent assistance she received from the learned Magistrate and by her own legal training. [41] Accordingly, in accordance with the decision of Henry J in Commissioner of Police (Qld) v Magistrate Spencer & Ors, notwithstanding the non-compliance with s 145, there was no misunderstanding or injustice occasioned by the procedural error. [42] This potential ground of appeal therefore has no prospects of success. Appeal ground 2 – lack of disclosure [43] The applicant has made a number of assertions and listed a number of propositions relating to disclosure requirements in both criminal and civil matters by reference to case law and legal texts.22 Noticeably however, neither the Notice of Appeal nor the Outline of Submissions disclose any specific complaint about lack of disclosure in the proceeding below. In particular, the applicant has not identified any specific document or types of document that the respondent failed to disclose. 18 Transcript of proceedings on 11 January 2012 at 1-2 lines 10 to 50. 19 Transcript of proceedings on 11 January 2012 at 1-40 line 1 to 1-41 line 1. 20 Transcript of proceedings on 29 February 2012 at 1-2 line 30 to 1-3 line 10. 21 Transcript of proceedings on 29 February 2012 at 1-22 lines 30 to 40. 22 Notice of Appeal from p 5 at paragraph [2] to p 8; outline of argument, paragraph [2]. -- 10 of 29 -- 11 [44] By way of chronology, on 8 December 2011 the respondent informed the applicant that materials, being a brief of evidence and disclosure documents, were available for collection as per her request.23 The applicant collected the brief of evidence and disclosure documents on 16 December 2011.24 [45] A sworn statement was produced by Mr Simon Benham dated 6 January 2012. It, therefore did not exist at the time the brief of evidence was provided to the applicant. That statement was not received by the applicant until 9 January 2012, which was only two days before the trial was due to commence. [46] The following exchange between the learned Magistrate and counsel for the respondent is relevant to understanding the significance of Mr Benham’s statement and intended later evidence:25 “BENCH: But insofar as Mr Bennam (sic) is concerned, although she’s had an opportunity to amass a large amount of material and assemble, and disassemble a large amount of material so that she might address an accuser, to see 48 hours out from the hearing how that accuser fits the jigsaw puzzle together, might be somewhat of a significant task but might not be able to be addressed in two days. MR McMILLAN: Yes, your Honour. Perhaps out of fairness, I should indicate that Mr Bennam (sic) certainly won’t be putting all of the jigsaw together. He’ll give evidence, as I’ve indicated, about the process for disclosure. BENCH: Mmm. MR McMILLAN: Or for – I’m sorry, for councillors maintaining their register of interests. The documents really tell the story in this case. BENCH: Yes. MR McMILLAN: And in my submission, your Honour, all the charges could be proved without Mr Bennam’s (sic) evidence on the documents alone. BENCH: Right. MR McMILLAN: So out of fairness I should------ BENCH: Right. MR McMILLAN: -----make it very plain----- BENCH: All right. Okay. 23 Affidavit of Louise Maree Syme dated 10 January 2012 at paragraphs 2 to 8. 24 The documents contained in the brief of evidence and the disclosure documents are detailed in the index as attached to “LMS-1” of Ms Syme’s 10 January 2012 affidavit. 25 Transcript of proceedings on 11 January 2012 at 1-32 line 50 to 1-33 line 60. -- 11 of 29 -- 12 MR McMILLAN: -----that it is the documents which are the case in this----- BENCH: So I’ve somewhat overstated the significance of Mr Bennam (sic)? MR McMILLAN: Yes. BENCH: But nevertheless Mr Bennam (sic) is being called and his – the nature of his evidence, that you’ve described to me----- MR McMILLAN: Oh, it’s certainly relevant, your Honour. And it’s in----- BENCH: -----still seems relevant and significant? MR McMILLAN: It is, yes. BENCH: Right. Now, moving away from that – moving away from the – well, do you want to argue that Ms Black should have been able to prepare despite Mr Bannams’ (sic) statement being given only 48 hours ago? MR McMILLAN: Your Honour, I don’t quibble with your Honour’s observations, other than to say that there is nothing in Mr Bannams’ (sic) statement, which, in my submission, is unknown to Ms Black. BENCH: Or it’s surprising. MR McMILLIAN: Or is surprising to her. BENCH: Right. Okay.” [47] The learned Magistrate heard the applicant’s application to have the matter struck out for want of proper disclosure26, but exercised his discretion to adjourn the proceedings on the basis that Mr Benham’s statement was provided only 48 hours earlier.27 [48] With respect to the applicant’s submission that day that she had not otherwise received full and proper disclosure from the respondent, the learned Magistrate made the following comments28: “BENCH: And on that basis I am prepared to, and I will adjourn the proceedings. There is a second limb to her application to adjourn the proceedings, and that is, I infer, that she has not been able to obtain disclosure of material from the complainant that she 26 Transcript of proceedings on 11 January 2012 at 1-2 line 50 to 1-22 line 50, and further from 1-24 line 1 to 1-30 line 50. 27 Transcript of proceedings on 11 January 2012 at 1-37 line 50 to 1-38 line 20. 28 Transcript of proceedings on 11 January 2012 at 1-37 line 50 to 1-38 line 20. -- 12 of 29 -- 13 claims is relevant to her case and/or to the preparation of her defence. It is not easy to discern from the application what that documentation is, and perhaps the reasons for it – and its relevance to these proceedings. But on a loose reading of it, it does appear to me that there are – there is potentially a substantial number of documents that could be relevant to some aspect of the case. Although I’ve indulged in some – a fair degree of speculation in that regard. I am therefore going to adjourn the proceedings and make some – and give some directions as to how disclosure might be requested. And then responded to and, in the absence of a complete or satisfactory response, how a matter might be advanced to determine whether any subsequent adjournment of the proceedings are necessary.” [49] The learned Magistrate then made further orders to the effect that the applicant and respondent exchange correspondence and the respondents make any further disclosure by 1 February 2012.29 [50] On 1 February 2012 the respondent disclosed further documents to the applicant in response to her request.30 The respondent objected to the production of a number of other documents, those objections having been set out in correspondence to the applicant dated 31 January 2012.31 [51] On 15 February 2012 the Magistrate ruled that disclosure had occurred as required and that the matter be set for hearing on 29 February 2012.32 [52] I can discern no disadvantage to the applicant as a result of the delay in providing the Benham statement. In fact, the hearing of the complaint was adjourned expressly to account for the late delivery of that statement. [53] The applicant has not challenged the Magistrate’s finding of 15 February 2012 and I can discern no prejudice to the applicant as a consequence of that ruling. Additionally, as I have already indicated, the applicant has failed to identify any specific complaint about lack of disclosure in the proceeding below. [54] Consequently, this potential ground of appeal is without merit. Appeal ground 3 – Inadmissible evidence in relation to admissions made in pleadings in separate proceedings 29 Transcript of proceedings on 11 January 2012 at 1-40 lines 1-50. 30 See affidavit of Louise Maree Syme sworn 14 February 2012 at paragraph 6. 31 See “LMS–3” of Miss Syme’s affidavit of 14 February for a list of the respondents’ objections and a list of the documents disclosed to the applicant. 32 Transcript of proceedings on 15 February 2012 at 1-17 lines 30-40. -- 13 of 29 -- 14 [55] At paragraph [3.0] on p 9 of the Notice of Appeal, the appellant summarises this ground of appeal as follows: “Summary: No authority to make admissions on behalf of another person; admissions made in interrogatories are INFORMAL (sic) admissions and therefore irrelevant; Admissions only establish that the elements of the offence not the truth of it; Not an expert witness so my opinions are that of a lay person; Must uphold the legal definition of ‘capacity’ and not allow anyone, lay persons, to invent their own definition. Need a define set of principles to establish this, and not leave it to individuals to make that assessment because that would mean everybody is at risk of being declared ‘incapacitated’ by any lay person.” [56] The applicant relies on Laws v Australian Broadcasting Tribunal33 (“Laws”) in support of this potential ground of appeal. [57] To properly understand the applicant’s submissions, a brief recitation of the allegations relevant to the charges that this potential appeal ground refers to, must be made. [58] Charge 1 alleged that the applicant failed to update her register of interests by notification within 30 days of her opening a joint account with a Mr Russell Tacon. That joint account was opened on or about 28 July 2009 with the National Australia Bank. The account number was 897334864. National Australia Bank documents which were tendered during the hearing established the details of the bank account, as did an affidavit under the hand of the applicant that she had prepared for other litigation but which was also tendered in this matter.34 [59] Additionally, the joint account was allegedly admitted by the applicant in documents filed in Supreme Court proceedings that had previously been taken against the applicant by the Public Trustee.35 The Statement of Claim filed in that matter alleged at paragraph 8 that as a consequence of a number of steps or actions taken by the applicant, a joint account was opened at the Garden City branch of the National Australia Bank in the names of Mr Tacon and the applicant. [60] Whilst the applicant disputed some of the particulars of that allegation in her Defence, she nevertheless admitted at paragraph 5(e) “say that as a consequence of the actions set out above, a joint account was opened with the bank in the names of Mr Tacon and the first defendant and the joint bank account was allocated account number: 89-733-4864.” [61] The defendant did not advise the chief executive officer of her interest in the bank account within 30 days as required by s 107(2) and Schedule 4(10) of the Regulation. 33 (1990) 170 CLR 70. 34 Exhibit 7. 35 Supreme Court file number 13246/10. -- 14 of 29 -- 15 [62] Charge 2 alleged that the applicant failed to update her register of interests by notification of the interests of a “related person” that person being Mr Russell Tacon. [63] Section 104(2)(b) of the Local Government (Operations) Regulation 2010 defines “related person” as: “(2) A person is related to a councillor, chief executive officer or senior contract employee (the primary party) if – … (b) The person is totally or substantially dependent on the primary party; and … (ii) The person’s affairs are so closely connected with the affairs of the primary party that a benefit derived by the person, or a substantial part of it, could pass to the primary party.” [64] The facts relied upon to prove that Mr Tacon was a “related person” to the applicant were: (a) at all relevant times the applicant held an Enduring Power of Attorney for Mr Tacon; (b) that from October 2009 Mr Tacon did not have capacity and thereafter the applicant acted upon her Power of Attorney; (c) the applicant dealt with proceeds of the sale of a property owned by Mr Tacon; and (d) the proceeds of that sale were the property of Mr Tacon and that property subsequently passed to the applicant. [65] Briefly, it was alleged that on or about 14 October 2009 Mr Tacon no longer had the capacity to make decisions regarding his financial affairs. On 28 October 2009 the applicant, acting under the Enduring Power of Attorney signed transfer documentation to enable the sale of a property owned by Mr Tacon. On or about 2 November 2009 the proceeds of the sale of that property were deposited to the account held jointly by the applicant and Mr Tacon. On 5 November 2009 the applicant transferred $700,000.00 from that joint account to her personal savings account. On or about 10 May 2010 the applicant transferred $170,000.00 from that joint account again to her personal savings account. [66] In support of the allegations regarding both charges the respondent relied on a properly sealed copy of a Claim and Statement of Claim filed in the Supreme Court civil proceedings between the Public Trustee and the applicant (Exhibit 5 in the proceedings below) and a properly sealed copy of a Defence and Counterclaim filed by the applicant in those proceedings (Exhibit 6 in the proceedings below). [67] Exhibit 5 was relied upon to the extent that it contained certain allegations of fact that were specifically admitted by the applicant in Exhibit 6. Exhibit 6 was relied upon as evidence that the statements of facts set out therein were statements of the applicant. [68] I note that the applicant also admitted in an affidavit sworn on 8 June 2010 and filed in guardianship proceedings relating to Mr Tacon before the Queensland Civil and -- 15 of 29 -- 16 Administrative Tribunal that she transferred various amounts from the proceeds of that sale to her personal bank account and applied those amounts for her own benefit.36 [69] As I have indicated, this charge alleged that the applicant failed to inform the chief executive officer of the interests of Mr Tacon as a “related person” to the applicant. [70] This potential ground of appeal is only of relevance to Charges 1 and 2. [71] In relation to this potential ground of appeal the applicant has submitted that Exhibits 5 and 6 should not have been admitted into evidence because they were pleadings and could not be treated as constituting admissions of facts made by her. [72] As I have said, in support of that submission the applicant relies predominantly upon Laws.. In Laws, the appellant (Mr Laws) sought to rely upon pleadings filed in separate defamation proceedings brought by him against the respondent. Mr Laws contended that statements made in the Defence filed by the respondent in those proceedings amounted to admissions which could be relied upon adversely to the respondent in the injunction proceeding, which was the subject of the appeal to the High Court. [73] The respondent has sought to distinguish Laws from the present matter on a factual basis by submitting that the statements in the respondent’s pleadings in the separate defamation matter, which Mr Laws’ sought to rely upon for the purposes of injunctive relief, were not specific “admissions” to allegations of fact but merely assertions setting out an alternative plea in justification of the alleged defamatory imputations. [74] If that submission is accepted, the respondent further submits that Exhibits 5 and 6 were admissible by virtue of s 53 of the Evidence Act 1977 given that they were relevant to a fact or facts in issue. [75] Section 53 of the Evidence Act 1977 relevantly says: “(1) Where it is sought to prove any of the following matters- … (b) An affidavit, pleading, will, codicil, indictment, or other legal document filed, deposited or presented in any court; … (d) Evidence of such matters and, as the case may be, of any particulars relating thereto may be given by the production of – … (f) A document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; …” 36 Exhibit 7. -- 16 of 29 -- 17 [76] The applicant has submitted however that the High Court in Laws was clear that pleadings cannot be treated in the same way as any other form of admission and are not admissible (at least for the purpose intended in this trial). [77] In Laws, Mason CJ and Brennan J, when referring to the contents of the defence said: “[30] The appellant's case is that each and every present member of the tribunal must be regarded as asserting a belief in the truth or correctness of these defences on the footing that the Tribunal is continuing to maintain the defences in the action. This submission cannot be accepted for two reasons. First, as the defence was not verified on oath and was not required to be so verified, it does not amount to an assertion of belief in the correctness of the facts pleaded. Indeed, traditional principle is that assertions made in pleadings do not amount to admissions. In Boileau v. Rutlin [1848] EngR 661; ; (1848) 2 Ex 665 (154 ER 657), the Court of Exchequer Chamber held that an averment of the existence of an agreement in a bill in equity in another suit between the same parties could not be received as an admission of the agreement by the party pleading the agreement. Parke B. observed (at pp 680-681 (p 663 of ER)): "It would seem that (bills in equity), as well as pleadings at common law, are not to be treated as positive allegations of the truth of the facts therein, for all purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied to be proved, and ultimately submitted for judicial decision.” Later he said (at p 681 (p 663 of ER)): "(T)he statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated." [31] Some years later, in Buckmaster v. Meiklejohn [1853] EngR 415; (1853) 8 Ex 634 (155 ER 1506), the Court of Exchequer Chamber applied the same principle in the case of common law pleadings. Parke B. pointed out (at p 637 (p 1507 of ER)): "In point of law, pleadings are not admissions, but are merely the statement of the case, which the party wishes to raise for the opinion of the jury.” See also Thorp v. Holdsworth (1876) 3 ChD 637, at p 639; Banque Commerciale v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 64 ALJR 244, at pp 247-248, 254; 92 ALR 53, at pp 58-59, 59-60, 70. -- 17 of 29 -- 18 [32] It has been suggested that the traditional principle may be too strict and that in some circumstances an assertion in a pleading should be received as an admission. This was the view of Hodges J. in Austin v. Austin [1905] VicLawRp 85; (1905) VLR 564, at pp 566-567, and Maguire J. in Kleeners Pty. Ltd. v. Lee Tim (1961) 78 WN(N.S.W.) 746, at pp 747-748, but in the ultimate analysis both Hodges J. and Maguire J. deferred to authority. More recently, in Singleton v. John Fairfax and Sons Ltd. (1982) 2 NSWLR 38, Hunt J. declined to follow the older cases and concluded (at p 51) that: "an imputation pleaded in a statement of claim as required by Pt 67, r 11(2) is admissible evidence by way of admission against the plaintiff that the matter complained of conveyed that imputation in fact. The same may well operate against a defendant in relation to any contextual imputation pleaded in his defence." In reaching this conclusion, Hunt J. considered that pleadings should be treated "in the same way as any other form of admission" and that the susceptibility of a pleading to be received as an admission should depend upon whether it was intended to be taken as a sincere or absolute assertion: see p 51. [33] However, in Stohl Aviation v. Electrum Pty. Ltd. (1984) 5 FCR 187 Jenkinson J. (at p 202) declined to follow the approach taken by Hunt J., preferring the traditional rule of exclusion on the ground that a departure from that rule would often lead to unprofitable collateral inquiries concerning the circumstances in which the assertion was included in the pleading. [34] The suggestion that pleadings should be treated in the same way as any other form of admission fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party's case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal or, for that matter, on the part of its individual members.” [78] Gaudron and McHugh JJ said when discussing this topic at paragraph 2: [2] An assertion made in a pleading does not constitute an admission by the party filing the pleading: Buckmaster v. Meiklejohn [1853] EngR 415; (1853) 8 Ex 634, at p 637 [1853] EngR 415; (155 ER 1506, at p 1507); Stohl -- 18 of 29 -- 19 Aviation v. Electrum Pty. Ltd. (1984) 5 FCR 187, at p 201. Nevertheless, in our opinion, a fair-minded observer would infer that, in filing the defences of justification and contextual justification, the members of the Tribunal had formed the opinion that, on the evidence known to them, the assertions in those defences were true. If it is proper to attribute to the fair-minded observer knowledge that pleadings do not amount to admissions, it must also be proper to attribute to that observer knowledge that the filing of a defence in a defamation action may be taken into consideration on the issue of malice and as improperly aggravating the injury done to the plaintiff "if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable": Triggell v. Pheeney [1951] HCA 23; (1951) 82 CLR 497, at p 514. On that hypothesis, the fair-minded observer, not wishing to attribute a lack of bona fides or improper or unjustifiable conduct to the Tribunal, would inevitably conclude that its members believed that, on the evidence known to them, the Tribunal would be able to establish that the imputations made against the appellant in the broadcast were true. Moreover, the failure of the members of the Tribunal to give evidence in rebuttal of the inference which arises from the filing of the defences of justification and contextual justification strengthens the case for concluding that they held the belief that the evidence, known to them, would establish that the imputations against the appellant were true.” [79] The respondent has submitted, that the High Court’s statement that “[a] defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff’s claim, without asserting in an absolute sense the truth or correctness of the particular matter pleaded” when considered in context is entirely reasonable. The respondent submits however, that the situation in this matter is different because the applicant “clearly admitted in her defence certain allegations of fact set out in the statement of claim”. The learned Magistrate in the hearing below considered this issue at some length and accepted the respondent’s submission and ruled the evidence admissible pursuant to s 53 of the Evidence Act and held that the statements contained therein were “admissible and capable of constituting statements against interest.”37 [80] His Honour in addition to distinguishing this matter from Laws for the reasons outlined above, also relied heavily on the introduction of the Uniform Civil Procedure Rules in 1999 with its specific rules regarding pleadings, as a further issue of relevance when distinguishing this matter from Laws.38 [81] Furthermore, the learned Magistrate referred to and relied upon the decision of Thomas J in R v Delguardo-Guerra39 to support his ultimate conclusion. 37 Transcript dated 23/3/12, page 6-28 lines 32-40. 38 Transcript on 23/3/12, page 6-64, line 55 to page 6-65, line 54. 39 [2001] QCA 266. -- 19 of 29 -- 20 [82] Given that the learned Magistrate’s finding appears, at least on its face, to be inconsistent with a High Court decision, examination of the issue is required. [83] Such examination of the statements in Laws reveals that there was nothing said in those passages which restricted the prohibition on the use to be made of pleadings in a different matter, to matters of law or potential defences. As Mason CJ and Brennan J unambiguously stated: “First, as the defence was not verified on oath and was not required to be so verified, it does not amount to an assertion of belief in the correctness of the facts pleaded.” (my underlining). [84] That approach is entirely consistent with long standing authority as evidenced by the comments of Park B. in Boileau v Rutlin in the passages quoted above. [85] Equally, Gaudron and McHugh JJ did not qualify their statement that “an assertion made in a pleading does not constitute an admission” to exclude assertions of fact. [86] These comments, when considered with the line of authorities on this issue, leave little room for ambiguity. [87] Examination of Thomas J’s comments in Delguardo-Guerra do not appear to be of any particular relevance. His Honour said at [35] – [37]; [35] On appeal it was submitted that the only section of the Code which allows for the making of admissions at a trial on behalf of an accused by his or her counsel is s 644; that evidence of admissions at another trial was inadmissible; and alternatively that it should have been excluded in the exercise of the court's discretion. [36] In my view the evidence was rightly received. The appellant's counsel upon his plea of guilty was his agent with ostensible authority to make statements on his behalf. The conduct of trial counsel on behalf of a client is conduct which a jury in that trial is entitled to take into account, even to the extent of inferring that certain instructions must have been given leading to particular questions being asked. Whilst care must be exercised when drawing such inferences, and whilst further evidence may show that such an inference ought not to be drawn, as for example where there is reason to think that there may have been a misunderstanding or an absence of instructions, there is no logical reason why a barrister's statement on behalf of an accused and made in the presence of the accused may not be used in that or any other criminal trial. The prima facie binding consequences for the client from the actions of his barrister are emphasized in R v Birks (1990) 19 NSWLR 677, 683-685. [37] Counsel make statements on behalf of the offender on such occasions with the offender present. If relevant statements of -- 20 of 29 -- 21 this kind were not at least prima facie admissible against the offender in subsequent proceedings because he did not make them himself, criminal justice would be very difficult to administer in the courts. In my view the statements in the transcript of proceedings may be regarded as statements against interest made by a duly authorized agent, and also possibly as evidence of the appellant’s assent by silence. The truth of such admissions could be contradicted by evidence that they were contrary to instructions or that they were otherwise erroneous. However in the absence of any reason to think that the statements in question were unreliable there is no proper basis upon which the learned trial judge ought to have excluded such evidence. The evidence served the relevant purpose of providing a fuller picture of the appellant's conduct upon the occasion in question.” (footnotes removed) [88] There was nothing controversial in those comments and his Honour’s conclusion as to the admissibility of the submissions of the appellant’s counsel made in the presence of the appellant is in no way inconsistent with the decision in Laws and does not overcome the issues as identified in Laws. [89] Finally, I can discern of no rule in the Uniform Civil Procedure Rules 1999 that would allow a conclusion on this issue that differed to that in Laws. Whilst the learned Magistrate correctly identified the requirements of proper pleadings under the Rules as well as the potential consequences of failing to respond, none of those issues overcame the problem of relying on pleadings as a statement against interest or an admission as identified in Laws. [90] The authorities are clear – until such time that pleadings are required to be verified on oath, they do not constitute an admission. [91] Accordingly, this potential ground of appeal would appear to have some merit in relation to Charge 2. If Exhibits 5 and 6 had not been admitted there would have been no evidence that Mr Tacon was a “dependent person”, and hence, no case for the applicant to answer in relation to that charge. Whilst Exhibits 5 and 6 were also not admissible in relation to Charge 1, other evidence was presented to the court that unambiguously supported a finding of guilt. [92] I might add, that in relation to Charge 2, even if I am incorrect in that conclusion, and the admissions contained in the applicant’s Defence were admissible and could be used as statements against interest, there would still seem to be problems in the proof of that charge. For instance, I fail to understand how the evidence that Mr Tacon was without capacity at the relevant time and that the applicant held an Enduring Power of Attorney could constitute proof beyond reasonable doubt that he was a “dependent” person in relation to the applicant. Yet that appeared to be the only evidence upon which proof of that element relied. Additionally, the admissions in the pleadings were not admissions made pursuant to s 644 of the Criminal Code of Queensland. Accordingly evidence that could prove the particular fact contained within the admission would still be necessary. In some circumstances one can well -- 21 of 29 -- 22 understand how the admission itself might constitute sufficient evidence in that regard. In this case however, proof of Mr Tacon’s alleged lack of capacity would ordinarily require the opinion evidence of a suitably qualified medical practitioner, or at the very least, evidence of his cognitive functioning that would allow the inference of a lack of capacity to be drawn. The bald assertion that he was without capacity, without any supporting evidence, is nothing more than opinion evidence which the applicant was not qualified to give – at least in the absence of factual evidence as to his level of functioning and apparent cognitive state. Given my conclusions above however, I need not consider these issues further. Appeal ground 5 – notice not given pursuant to s 14A of the Bail Act 1980 [93] This ground of appeal appears to contend that warrants issued against the applicant after the hearing of evidence were not or may not have been valid having regard to s 14A of the Bail Act 1980. [94] This ground is without merit. At the conclusion of the hearing on 29 February 2012 the learned Magistrate allowed the applicant to go at large until 15 March 2012.40 [95] On 15 March 2012 the learned Magistrate ordered that a warrant issue for the applicant’s arrest after she failed to appear as required and the proceedings were adjourned.41 [96] The applicant appeared in the Magistrates Court at Beenleigh of her own volition on 16 March 2012. On that day, in response to her concerns that s 14A of the Bail Act had not been complied with, the learned Magistrate recalled the warrant that had been issued the previous day.42 [97] Later that day the applicant advised the learned Magistrate that she intended to leave the Court and asked what action he intended to take. She subsequently left the court, and the learned Magistrate issued another warrant for her arrest.43 [98] Following arrest on 23 March 2012 the applicant appeared in the Magistrates Court at Brisbane and made application for bail. At that time she made no submissions regarding the validity of the warrant under which she had been arrested. [99] This brief recitation of chronology demonstrates that any complaint in relation to the invalidity of either warrant is entirely irrelevant to the appeal against conviction or sentence and requires no further comment. Appeal ground 6 – specific charges under the Local Government Act/Regulations [100] At paragraph [6.0] on p 16 of the Notice of Appeal the applicant asserts that: 40 Transcript of proceedings of 29 February 2012 at 1-152 lines 30 to 40. 41 Transcript of proceedings on 15 March 2012 at 1-3 lines 40 to 50. 42 Transcript of proceedings on 16 March 2012 at 4-4 line 30. 43 Transcript of proceedings on 16 March 2012 at 4-16 line 60 to 4-18 line 10. -- 22 of 29 -- 23 “The charges specifically refer to a ‘failure to inform the chief executive officer’, however the Crown failed to discharge this onus of proof as it did not call the chief executive officer as a witness.” [101] The respondent has submitted that there was no obligation to call the chief executive officer of his knowledge of the applicant’s register of interests. I agree. The elements of the offence were established if the prosecution proved that the applicant did not inform the chief executive officer of the relevant changes to her register of interests. [102] In that regard the respondent relied on the applicant’s registers of interests (Exhibits 2 and 3) as evidence of the things informed to the chief executive officer. Exhibits 2 and 3 were tendered as public documents and were admissible under the provisions of s 51 of the Evidence Act and were proof of their contents. [103] Furthermore, the aforementioned Mr Simon Benham, Governance Manager, at Logan City Council, gave evidence for the respondent. His evidence relevantly addressed:  his role with the Logan City Council44;  training he provided to councillors, including the applicant, regarding their obligations to disclose interests45;  the process for maintaining registers of councillors’ interests46; and  the relevance of Exhibits 2 and 3.47 [104] Mr Benham confirmed that no further amendments had been made to the applicant’s register of interests (Exhibit 2)48 and that he was not aware of the applicant informing the chief executive officer of any changes in her register of related persons (Exhibit 3) since January 2012.49 [105] The applicant cross-examined Mr Benham but did not challenge his evidence that no relevant amendments had been made to her register of interests or register of related persons. [106] The applicant did not adduce any evidence that she had in fact informed the chief executive officer contrary to the processes explained by Mr Benham. Nor did the applicant elicit any evidence in cross-examination to suggest that Exhibits 2 and 3 were not true and correct records of her registers of interest. 44 Transcript of proceedings on 29 February 2012 at 1-84 lines 10 to 30. 45 Ibid at 1-84 lines 30 to 50. 46 Ibid at 1-85 line 50 to 1-86 line 30. 47 Ibid at 1-86 lines 30 to 60. 48 Ibid at 1-86 lines 50 to 60. 49 Ibid at 1-87 line 50. -- 23 of 29 -- 24 [107] The respondent submits that in those circumstances it was open to the learned Magistrate to find beyond reasonable doubt that the applicant had failed to make any notifications to the chief executive officer other than those recorded in Exhibits 2 and 3 and that accordingly there was no need to call the chief executive to give evidence. I agree with that submission, and there is no merit in this ground of appeal. Appeal ground 7 – stay of proceedings not granted [108] At paragraph [7.0] on p 16 of the Notice of Appeal the applicant asserts: “My application to stay proceedings on the grounds that I had filed a notice of appeal in respect of the decision of Justice Boddice of the 7th of December 2011 was refused by Magistrate Morgan. The relevancy of that appeal to this case was based on the fact that a large amount of the evidence that has been used and relied on by the Crown in this matter originated from earlier proceedings, and this formed one of the grounds of appeal.” [109] The applicant made an application to stay the proceedings on 29 February 2012.50 [110] The proceeding over which Boddice J presided on 7 December 2011 was an entirely separate civil proceeding brought by the Public Trustee against the applicant. The pleadings produced and tendered as Exhibits 5 and 6 were the pleadings filed in that proceeding. [111] The applicant’s application in the Magistrates Court was based on the submission that the matters determined by Boddice J were substantially the same as the matters to be considered in the matter before the learned Magistrate. The following exchange between the learned Magistrate and the applicant is relevant:51 “BENCH: The issue, as you’ve told me, is that Justice Boddice granted summary judgment making a declaration that you were a trustee. That is not the same issue, and in many respects may have been an entirely independent issue of whether you are – whether a particular person might have been a related person under regulation 104 of the Local Government Operations Regulation 210. (sic) DEFENDANT: So, your Honour, I say that they are related, because Mr McMillan is----- BENCH: You say they are an identical issue? DEFENDANT: Not identical. And the law doesn’t say it has to be identical. It says that is has to be similar, and that’s what I’m saying----- 50 Transcript of proceedings on 29 February 2012 at 1-3 line 30 to 1-24 line 40. 51 Transcript of proceedings on 29 February 2012 at 1-42 line 40 to 1-43 line 30. -- 24 of 29 -- 25 BENCH: Substantially the same? DEFENDANT: -----and so if Mr McMillan, in his opening address referred to a number of points, and – and he stated that the – there was a date in question – I can’t remember the exact word he used – I think he said it’s critical, he’s relying on a – the date where Mr Tacon apparently lost capacity, which is, again, subject of dispute, and that was before the Court of Appeal. And – oh, sorry, which is before the Supreme Court, and is a point of law before the Court of Appeal. So, Mr McMillan, in relying on that, that is exactly what I’m saying, your Honour, that it is a----- BENCH: They’re facts that he is relying on to try and establish that you are a related----- DEFENDANT: Correct. BENCH: -----that Mr Tacon was a related person to you. Now, my finding – and I make a ruling – that my finding ultimately that you may or may not be a – sorry, that Mr Tacon may or may not be a related person to you is not the same or substantially the same as whether you are a trustee in relation to this affairs, and I make that ruling right now.” [112] The respondent has quite correctly identified that the applicant did not provide any evidence in the Court below that any matter or issue in the civil proceeding which was to be the subject of appeal, was identical to or substantially the same as any matter or issue to be determined by the learned Magistrate. In the absence of cogent evidence supporting the applicant’s stay application, the learned Magistrate was quite correct to refuse it. [113] I note that the applicant has continued through to the present time to fail to adduce any evidence or cogent argument in support of the assertion that the decision of Boddice J on 7 December 2012 or any subsequent appeal of that decision was directly relevant to a matter in issue in the present case. In particular, the applicant has not provided any evidence to establish that an appeal of Boddice J’s decision was in fact commenced; the outcome of any such appeal; or the relevance of the outcome of that appeal to the considerations that presented themselves to the learned Magistrate or to this court on this potential appeal. [114] The applicant has failed to demonstrate any prejudice or disadvantage to her by virtue of the Magistrate’s refusal to stay the proceedings below, and this is a ground without merit. -- 25 of 29 -- 26 Appeal ground 8 – Local Government Act/Regulations cannot impose criminal sanctions [115] At paragraph [8.0] on p 17 of the applicant’s Notice of Appeal, it is asserted that the Regulation: “...imposes a criminal sanction which is outside the Criminal Code (Qld) 1899 which is unconstitutional and therefore must be read down/struck down.” [116] Section 5 of the Criminal Code Act 1899 provides: “5 Provisions of Code exclusive with certain exceptions From and after the coming into operation of the Code, no person shall be liable to be tried or punished in Queensland as for an indictable offence except under the express provisions of the Code or some other statute law of Queensland, or under the express provisions of some statute of the United Kingdom which is expressly applied to Queensland, or which is in force in all parts of Her Majesty’s dominions not expressly excepted from its operation, or which authorises the trial and punishment in Queensland of offenders who have at places not in Queensland committed offences against the laws of the United Kingdom.” [117] Sections 2 and 3 of the Criminal Code provide: “2 Definition of offence An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence. 3 Division of offences (1) Offences are of 2 kinds, namely, criminal offences and regulatory offences. (2) Criminal offences comprise crimes, misdemeanours and simple offences. (3) Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. (4) A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court. (5) An offence not otherwise designated is a simple offence.” [118] The Criminal Code makes it perfectly clear that it is not the only statutory instrument by which the legislature may create offences in Queensland. The -- 26 of 29 -- 27 Regulation lawfully contained offence provisions, breaches of which could result in criminal sanction. [119] There is no merit in this ground of appeal. Appeal ground 4 – punishment/sentence manifestly excessive [120] The applicant asserts, at paragraph [4.0] on p 13 of the Notice of Appeal, that: “The penalties for breaching the provisions of the Local Government Act/Regulations 2009 under which I was charged, include a fine as well as the recording of a criminal conviction, which in itself carries a further penalty of being discharged from office and/or not being able to stand for election for four years. This punishment is excessive particularly when weighed against the breach (or alleged breaches).” [121] The appeal documents do not contain any submission or relevant authority to suggest that the fines imposed or the periods allowed for the payment of the fines were manifestly excessive or unjust. The applicant’s sole complaint appears to be that a conviction was recorded against her, with the consequence that she was disqualified from being a councillor or standing for election as a councillor for four years. [122] Section 153(1)(e) of the Local Government Act (“the Act”) provides that a person cannot be a councillor for four years after the person is convicted of an integrity offence. [123] Section 153(5) provides an “integrity offence” is a an offence against ss 171, 172 or 234 of the Act or ss 98B, 98E or 98G(a) or (b) of the Criminal Code, or, relevantly, another offence prescribed under a Regulation. [124] Section 48 of the Regulation provided that for s 153(5)(c) of the Act, an offence against s 107 was a prescribed integrity offence. [125] The term “conviction” is defined in Schedule 4 of the Act as follows: “conviction includes a finding of guilt, and the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.” [126] It is apparent that the applicant was therefore disqualified from being a councillor and prevented from standing for election as a councillor by operation of law, not as a result of the exercise of the learned Magistrate’s discretion to record convictions. [127] The maximum penalty for each of these charges was a fine equivalent to 85 penalty units, which at the relevant time equated to $8,500.00. [128] In the absence of any authority which suggests that the fines which were imposed were excessive, I am not of the view that they were. These were not minor offences and publicly elected officials undoubtedly bear a high burden to comply with legislative requirements, particularly those that relate to disclosure of personal -- 27 of 29 -- 28 interests. The fines imposed on each of these charges appear to me to be reasonable in the circumstances given the seriousness of the offending conduct and they give due and proper recognition to relevant sentencing principles including principles of deterrence and public denunciation. [129] Insofar as the recording of convictions are concerned, the applicants argument that she was discharged from office and prevented from standing for election for four years as a consequence of convictions being recorded is incorrect for the reasons outlined above. No other argument has been presented as to why the recording of convictions was excessive in the circumstances, nor can I discern any factual basis for such a submission. [130] There is no merit to this ground. Conclusion [131] For the reasons outlined above the applicant has, in relation to Charges 1, 3 and 4, failed to demonstrate any good reason to account for the significant delay in filing a Notice of Appeal, nor has she demonstrated that the appeal in relation to those charges has any reasonable prospects of success. [132] Accordingly the application for leave to extend the period of time to file a Notice of Appeal in relation to Charges 1, 3 and 4 is refused. [133] In relation to Charge 2, once again the applicant has failed to demonstrate any good reason to account for the significant delay in filing her Notice of Appeal. That is, however, not the end of the matter. As I have already indicated, in my view inadmissible evidence was placed before the court which ultimately resulted in the applicant being convicted of an offence for which no case existed. Notwithstanding that significant delay in filing the Notice of Appeal, the justice of the situation, as I have found it, requires a consideration of the merits of the substantive appeal. [134] Additionally, I note that no prejudice would be occasioned to the respondent if leave to extend time was granted. [135] In all the circumstances, it is my view that requiring strict compliance with the Rules would result in an injustice of some significance taking into account the nature of the litigation and the consequence for the applicant if the application is refused. [136] Accordingly, whilst noting that the prescribed time limits for appeals serve an important purpose of bringing finality to litigation and are not to be ignored lightly, I nevertheless conclude that in relation to Charge 2 this is an appropriate matter to grant leave allowing the extension of time and to uphold the appeal. Orders 1. The application for leave to extend the period of time to file a Notice of Appeal against both conviction and sentence in relation to Charges 1, 3 and 4 is refused. -- 28 of 29 -- 29 2. The application for leave to extend the period of time to 21 January 2014 to file a Notice of Appeal against conviction in relation to Charge 2 is allowed. 3. In relation to Charge 2: (a) The appeal against conviction is allowed; (b) The verdict of guilty is set aside; and (c) A verdict of not guilty is entered. 4. I will hear the parties as to costs. -- 29 of 29 --