Ajax v Bird [2010] QCA 2

SUPREME COURT OF QUEENSLAND CITATION: Ajax v Bird [2010] QCA 2 PARTIES: AJAX, Raymond Laurence (appellant/applicant) v BIRD, Christopher Roger (respondent) FILE NO/S: CA No 286 of 2009 DC No 425 of 2009 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 (Criminal) ORIGINATING COURT: District Court at Brisbane DELIVERED EX TEMPORE ON: 2 February 2010 DELIVERED AT: Brisbane HEARING DATE: 2 February 2010 JUDGES: Keane and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON A GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty and was convicted and fined for an offence against the Transport Operations (Road Use Management – Vehicles Standards and Safety) Regulation 1999 (Qld) – where the applicant appealed the penalty under s 222 of the District Court of Queensland Act 1967 (Qld) – where the applicant applied for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) – whether the Magistrate erred by accepting the applicant’s plea of guilty – whether the applicant was entitled to challenge his conviction on appeal to the District Court – whether the applicant should be granted leave to appeal his conviction District Court of Queensland Act 1967 (Qld), s 118 Judicial Review Act 1991 (Qld) Justices Act 1886 (Qld), s 222(2)(c) Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999 (Qld), s 14(2)(a), s 14(3) -- 1 of 4 -- 2 Dore & Ors v Penny [2005] QCA 150, cited Hall v Bobbermen [2009] QDC 188, cited Long v Spivey [2004] QCA 118, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited Phillips v Spencer [2006] 2 Qd R 47; [2005] QCA 317; cited R v GV [2006] QCA 394, cited Shaw v Yule [1995] QCA 611, cited COUNSEL: The applicant appeared on his own behalf M B Lehane for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondents [1] KEANE JA: Justice Fraser will deliver his Honour's reasons for judgment first. [2] FRASER JA: On 29 January 2009, the applicant was convicted on his plea of guilty of an offence against s 14(3) of the Transport Operations (Road Use Management - Vehicle Standards and Safety) Regulation 1999 (Qld) of failing to comply with a notice given by police to the applicant on 7 November 2007, requiring the applicant to correct defective parking lights on the applicant's vehicle and produce that vehicle to the Bribie Island police by 4.00 pm on 14 November 2007 for inspection. The Magistrate imposed a fine of $300 (against the maximum of $2250) and allowed three months to pay the fine, in default six days imprisonment. A conviction was recorded. The applicant appealed to the District Court under s 222 of the Justices Act 1886 (Qld) on the grounds that the penalty was manifestly excessive and outside the normal range for like offences and that the Magistrate did not consider the mitigating circumstances when imposing a penalty. On 19 October 2009 the District Court, Judge Brabazon QC, DCJ, allowed the appeal to the extent of reducing the amount of the fine to $100. [3] On 18 November 2009, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal to this Court under s 118 of the District Court of Queensland Act 1967 (Qld). The ground stated in that application is that the notice to produce the vehicle "can't be a charge if the defect vehicle offence was struck off." He argues that the Magistrate erred by accepting a guilty plea to the offence of failing to produce the vehicle for inspection in circumstances in which a related charge, of driving the vehicle with defective lights, was struck out when the Prosecution offered no evidence. In reliance upon a statement of a witness which was tendered as an exhibit in the District Court he argues that a mechanical inspection shortly before and again shortly after the police claimed to have found the defective parking lights demonstrates that the lights were not defective. [4] As the District Court Judge pointed out, the short answer to this is that the applicant pleaded guilty to the offence of which he was convicted and his appeal to the District Court under s 222 of the Justices Act 1886 was against penalty and not against conviction. Although the applicant sought to challenge his conviction in argument in the District Court, in conformity with s 222(2)(c) of the Justices Act -- 2 of 4 -- 3 1886, the applicant's notice of appeal to the District Court unambiguously confined it to an appeal against penalty. That section provides that if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under s 222 on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. In a decision cited by the applicant, Long v Spivey [2004] QCA 118 this Court held that this provision (then in s 222(2)(e)) bears its literal meaning. Long v Spivey was followed in Dore & Ors v Penny [2005] QCA 150 and Phillips v Spencer & Anor [2005] QCA 317. It is quite clear that where a defendant enters an unequivocal plea of guilty that person has no right of appeal against conviction under s 222 of the Justices Act 1886. In some circumstances the defendant may be entitled to a remedy under the Judicial Review Act 1991, but that issue does not arise here. [5] Other decisions cited by the applicant illustrate the point that s 222(2)(c) may not preclude an appeal to the District Court where the appellant's plea was equivocal or, upon analysis amounted to a plea of not guilty (see, for example, Shaw v Yule [1995] QCA 611) or where the appellant had entered a plea of guilty to a charge "that clearly did not exist at law" (see for example Hall v Bobbermen [2009] QDC 188). Those decisions have no potential application in relation to the applicant's ground of his proposed appeal. The applicant does not argue that the terms of the charge did not disclose an offence known to the law. The mere fact that the prosecution did not lead any evidence to establish the charge of driving a vehicle with defective lights did not indicate any equivocation in the applicant's plea of guilty to the separate offence of which he was convicted. It was not a condition of the authorised officer's power to give the relevant notice that the vehicle in fact be defective. The condition in s 14(2)(a) of the Regulation was that the officer "reasonably believes" that the vehicle was defective. The version recited by the Prosecutor at the hearing before the Magistrate plainly demonstrated fulfilment of that condition and the applicant's counsel did not contradict that version. The applicant's present argument was not advanced in the Magistrates Court. [6] It follows that the applicant had no right to appeal to the District Court from his conviction. There can therefore be no appeal to this Court to challenge that Court's refusal to set aside his conviction on the only ground stated in his application. [7] In argument in this Court, the applicant also contends that he was not guilty because he did produce his vehicle to the Bribie Island police station, although there were no police then available to inspect the vehicle. This point was raised in the Magistrates Court. The applicant's counsel there conveyed the applicant's instructions that he did produce his car at the police station but that police were not then available. However, the applicant's counsel made it plain that the submissions went only to penalty. He conceded that because there was no officer then present at the police station, there remained a requirement for the applicant to produce his vehicle for inspection, but that the applicant left and did not take the car back. That seems to me to be the better view. In these circumstances, the applicant's plea of guilty should be regarded as unequivocal so that the applicant also had no right of appeal to the District Court against his conviction on this ground. [8] The applicant also seeks to argue that his plea of guilty was due to wrong legal advice, that he could not call a witness to give evidence by telephone. Even putting to one side the procedural difficulty mentioned earlier, I am not persuaded that there -- 3 of 4 -- 4 is any substance in this argument. The applicant has not established that his legal advice was incorrect, or that it had any real bearing on his plea of guilty. The applicant has produced an affidavit by a person who deposes that she was reluctant to go to Court, but happy enough to give phone evidence. The affidavit does not explain the relevance of her evidence, but had the applicant wished to call her, he could have caused a subpoena to be issued. He could also have called the mechanic who gave the statement which was tendered in the District Court had he wished to do so. The applicant has not given evidence that he was given any advice by his lawyers to the contrary. The applicant was of full age and apparently of sound mind and understanding when he entered his plea of guilty, and he entered that plea in the exercise of a free choice in his own interests. In these circumstances, his arguments that he was in fact not guilty of the offence are insufficient to establish a miscarriage of justice: see Meissner v The Queen (1995) 184 CLR 132 and R v GV [2006] QCA 394. [9] The proposed appeal to this Court has no real prospect of success. I would refuse the application for that reason. [10] KEANE JA: I agree. [11] MUIR JA: I agree. [12] KEANE JA: The order of the Court will be that the application is refused. -- 4 of 4 --