Commissioner of Police v McKinlay [2012] QDC 161

QDC [2012] 161 DISTRICT COURT APPELLATE JURISDICTION JUDGE DEARDEN No 78 of 2011 COMMISSIONER OF POLICE Respondent/Plaintiff and PETER DARRELL MCKINLAY Applicant/Defendant BEENLEIGH ..DATE 16/05/2012 ORDER -- 1 of 6 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is a notice of application for extension of time to appeal against sentence, filed in this Court on 23 April 2012. The background to the matter is that the applicant Peter Darrell McKinlay was convicted on his own plea at the Magistrates Court at Southport before the learned acting magistrate on 7 February 2011 of one offence of serious assault of a person over 60 years of age. Mr McKinlay was sentenced to a period of 18 months probation which will expire in approximately four months, with a special condition. The ground of the application is, "In January 2012, police unearthed new evidence of profound effect to style and length of punishment that should occur to plea of guilty when police charged to be what it is on 7th of February 2009" [sic]. If I understand the material correctly, Mr McKinlay has indicated that after a significant period of time, he has obtained a copy of the record of interview between himself and police and his argument is that in the light of that record of interview, the penalty imposed by the learned acting magistrate on 7 February 2011 at Southport, should have been "time served," which he identifies as being the significant period that he was on bail prior to being sentenced. Mr McKinlay did clarify that there was no period of actual custody involved in that "time served." Mr McKinlay has appealed to this court and his appeals were -- 2 of 6 -- 3 ORDER 1 10 20 30 40 50 60 struck out and/or dismissed on 17 June 2011 and 4 August 2011. Mr McKinlay has appealed on two separate occasions to the Court of Appeal and decisions were delivered on 9 December 2011 (McKinlay v. Commissioner of Police [2011] QCA 356) and 12 April 2012 (R v. McKinlay [2012] QCA 86). The relevant legislation provides (Justices Act s.222 (1)) that "If a person feels aggrieved as complainant defendant or otherwise by an order made by Justices or a Justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge." Justices Act s.222 (2)(b) provides that "If the order the subject of the proposed appeal is an order of Justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs." I note that the learned acting magistrate was dealing with an indictable offence of assaulting a person aged 60 or over and therefore the only appeal available to this Court is an appeal against sentence. Pursuant to s.224(1)(a) the legislation provides relevantly "For an appeal, a District Court Judge may, on the application of a party or the Judge's own initiative - (a) extend the time for filing a notice of appeal." -- 3 of 6 -- 4 ORDER 1 10 20 30 40 50 60 As Wilson AJA pointed out in McKinlay v. Commissioner of Police [2011] QCA 356, the application for an extension of time filed on 2 June 2011 by this applicant was dealt with by me making an order "striking out the appeal" (para 9). Wilson AJA properly identifies that the appropriate order should have been "One refusing the extension of time rather than one striking out the appeal." Wilson AJA also helpfully sets out the discretionary power to extend the time for appeal which I just identified and then notes "Relevant to the exercise of the discretion to extend time were - (a) whether there was a good reason for the delay; and (b) whether it was in the interests of justice to grant the extension." (McKinlay v. Commissioner of Police [2011] QCA 356 per Wilson AJA para 12, citing R v. Tait [1999] 2 QVR 667.) Addressing then those two questions in the exercise of my discretion pursuant to section 224, I consider that although it has taken a substantial period of time (significant delay) for the appellant to obtain the record of interview, the reality is that I do not consider the record of interview (the contents of which have not been placed before me) impact in any practical or legal way on the decision of Mr McKinlay to enter a plea before the learned acting magistrate back on 7 February 2011. Therefore the fact that there's been a significant delay in obtaining that record of interview is, in -- 4 of 6 -- 5 ORDER 1 10 20 30 40 50 60 my view, effectively irrelevant to the issue of the appropriate sentence. That also goes to the second issue, of course, which is "whether it is in the interests of justice to grant the extension". Unlike Mr McKinlay, I do not believe that the record of interview (whatever its contents may have been) would have impacted in any way on the learned acting magistrate's decision on penalty. That, in my view, was appropriately dealt with on the basis that was placed before the learned acting magistrate and it seems not substantially disputed in those proceedings. Therefore, taking into account that factor, and the fact that there is only some four months left of the probation order to complete, I am not persuaded that it is "in the interests of justice" to grant the extension. Accordingly, although I understand and accept that Mr McKinlay is keenly interested and has been very passionate about pursing his appellate rights in respect of this matter, I see no basis on which I should exercise my discretion to extend time in this matter. Accordingly, I order that the application for extension of time be refused. There is no order as to costs. Thank you, Mr McKinlay. -- 5 of 6 -- 6 ORDER 1 10 20 30 40 50 60 ... ----- -- 6 of 6 --