C'Ward v Madsen [2010] QDC 160

1 [2010] QDC 160 DISTRICT COURT APPELLATE JURISDICTION JUDGE DURWARD SC No 279 of 2009 MARLOW DOUGLAS C'WARD Appellant and TIMOTHY KENT MADSEN Respondent TOWNSVILLE ..DATE 16/03/2010 JUDGMENT -- 1 of 13 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The appellant, Marlow Douglas C'Ward, has appealed to this Court pursuant to section 222 of the Justices Act 1886. He was convicted and sentenced on 11th November 2009 on a plea of guilty to a charge of driving a motor vehicle without a driver's licence (demerit points) on 22nd April 2009 made pursuant to section 78(1) and (3)(b) of the Transport Operations (Road Use Management) Act 1995. The charge is one that involves driving whilst disqualified from holding or obtaining a driver's licence because of the allocation of demerit points in a specified period of time. The appellant was fined $75 and disqualified from holding or obtaining a driver's licence for a period of six months. The period of disqualification was a mandatory period in respect of the offence. In the notice of appeal filed on the 11th of November 2009 the grounds of appeal were stated to be: (1) That the learned Magistrate erred in failing to grant the stay application; (2) That the learned Magistrate erred in his interpretation of "same offence" when considering if the defendant was twice punished in relation to a high speed demerits point suspension. -- 2 of 13 -- 3 JUDGMENT 1 10 20 30 40 50 60 The relevance of the stay application and the reference to "same offence", a reference to section 16 of the Criminal Code (Qld), will become apparent further in these reasons. When the hearing commenced yesterday I raised the issue of the jurisdiction of this Court to hear the appeal. Section 222(2)(c) provides that, by way of exception to the principal appeal rights in subsection (1), "If a defendant pleads guilty or admits the truth of a complaint a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate." The plea of guilty was a regularly entered plea. Hence the Court's jurisdiction is limited in accordance with section 222(2)(c). That limitation is a direct consequence of the section. Judge Ford, in Hughes v. Mitchell [2008] QDC 193 at [20] said this about the history of section 222 of the Justices Act: "When the history of section 222 of the Justices Act is considered, it becomes clear that after the implementation of section 222(2)(c) the legislature sought to limit the grounds of appeal to the District Court. Once a defendant pleaded guilty there were two courses open. The defendant could apply to re-open the case under section 147A. If it was re-opened and a conviction followed a not guilty plea then the appeal was available under section 222 of the Justices Act. However, if there was a refusal to re-open a conviction -- 3 of 13 -- 4 JUDGMENT 1 10 20 30 40 50 60 following a guilty plea, then the defendant was required to apply for judicial review of that decision under the provisions of Part 5 of the Judicial Review Act. That Act defined the limited basis upon which the hearing could proceed. It certainly does not permit a re-hearing on the merits. That was always the position when section 147A was involved. Section 222(2)(c) limited the grounds of appeal where a defendant pleaded guilty or otherwise admitted the truth of the allegations. It certainly excluded a right to appeal on the merits following a conviction based upon a plea of guilty. If there has been a miscarriage of justice in those circumstances, the principles in Meissner v. The Queen [[1995] 184 CLR 132] would apply. If there was a breach of natural justice, for example, the provisions of section 43 and 47 of the Judicial Review Act 1991 may assist. In the present case the District Court has no jurisdiction to entertain an appeal from a conviction following a plea of guilty. In view of the lack of jurisdiction it has been unnecessary to determine whether there has been a miscarriage of justice." Those observations are not binding upon me but nevertheless demonstrate the inherent difficulty that the statutory limitation, imposed by section 222(2)(c), might have in certain circumstances. Section 222(2)(c) is a recent formulation of the same section which was previously subsection (2)(e). The changes are in -- 4 of 13 -- 5 JUDGMENT 1 10 20 30 40 50 60 the order in which the words are expressed, rather than in substance and for all intents and purposes the two sections, the current section and its predecessor, are the same. The hearing in this appeal recommenced this morning. The parties have filed supplementary submissions. Neither of the submissions directly address the critical issue of the jurisdiction of the Court but I say that with the knowledge that there is little, if any, authority directly on the point. However, the appellant foreshadowed, as he did in the oral submissions yesterday, that an amendment to the notice of appeal may be sought. The respondent, having been put on notice of the application, indicated that it was prepared to consent to it. That consent was clarified in submissions today when the respondent, whilst not resiling from a consent to the amendment if the Court considered that it would overcome any other issue, rather submitted that it too considered the jurisdictional point to be fatal to the appeal. The amendment proposed is an amendment to the second ground of appeal. The first ground, it seems, is by implication, abandoned. I do not think that there is any issue, in this case, that the original grounds of appeal were grounds of appeal against conviction and not against sentence. I will say something about that in a moment. Mr Honchin, for the appellant, submitted that the complaint did not disclose an offence on which the appellant could be -- 5 of 13 -- 6 JUDGMENT 1 10 20 30 40 50 60 punished and that the plea of guilty was not a true plea. That submission is somewhat disingenuous. Mr Honchin appeared for the appellant in the Magistrates Court, the plea was entered in his presence. I do not accept that the entry of the plea of guilty was not other than regular. When one refers to the transcript of the proceedings below, when the Magistrate had made his ruling in respect to the application to stay the charge - based on submissions made in respect of section 16 of the Criminal Code Queensland - an adjournment was sought by the defendant and the Court was subsequently informed that the defendant, that is the appellant here, had given his counsel instructions that he wished to enter a plea of guilty in relation to the charge. Mr Honchin argued that the notice of appeal was drawn widely enough to bring it into the exception in section 222(2)(c) of the Act: that is, that the appellant was punished excessively because he should not have been punished at all. In my view that ground of appeal does not permit that construction. It does not amount to a ground that asserts that the sentence imposed was excessive, or manifestly excessive as that term is usually used in appeals. The word "excessive" is taken from the section itself. Mr Honchin sought, in the alternative, an amendment by way of substitution for the original grounds of appeal: that is, a new ground, namely "that the punishment and/or penalty imposed was excessive because no punishment and/or penalty ought to -- 6 of 13 -- 7 JUDGMENT 1 10 20 30 40 50 60 have been imposed by reason of section 16 of the Criminal Code." I have no doubt that such an amendment, even on the hearing of the appeal, is permissible pursuant to section 224(1)(c) of the Justices Act. The respondent, as I have indicated, consents to that amendment subject to the caveat in its submission this morning with respect to jurisdiction. If I were to allow the amendment, would that cure the jurisdictional issue or? Or, expressed another way, is the amendment one that brings the case within section 222(2)(c) of the Justices Act? As I have said, there is no doubt that the original grounds were made in relation to the conviction. The amendment would require an application to extend time for appeal because the amendment seeks to substitute an appeal against sentence. If I was satisfied that there was no jurisdictional issue that impacted on the appeal I would have granted leave to appeal against sentence by a grant of leave to file the notice of appeal out of time and granted leave for the substitution of the new ground by amendment. The respondent would not have opposed any of those things, given the submission that it has made in respect of the amendment issue. It is necessary for me to consider what happened in the Magistrates Court beyond simply the entry of a regular plea of guilty. In the Magistrates Court the applicant had pleaded -- 7 of 13 -- 8 JUDGMENT 1 10 20 30 40 50 60 not guilty in the first instance and made an application to stay the proceedings. The application was refused. As I've said, it then followed that a plea of guilty was entered. If the case had perhaps proceeded to a hearing on a not guilty plea and had the appellant been found guilty, then the jurisdictional issue would not have arisen. The appellant, for example, could have elected not to contest the prosecution case on the facts and to call no evidence. I do not think that such course of action would bring into play the words "admits the truth of a complaint" used in section 222(2)(c), because there was a not guilty plea. In those circumstances a finding of guilt, I would have thought, inevitably followed. The real issue in the appeal, which in my view now masquerades as an issue of the sentence being excessive, is whether the charge put the appellant in double jeopardy pursuant to section 16 of the Criminal Code (Qld). If that issue had succeeded before the acting Magistrate the charge would have been stayed as being an abuse of process, I would have thought. There would have been no sentence imposed and no issue of any sentence being excessive. The plea of guilty below, however, has changed that. It constitutes an acceptance of the facts and circumstances of the charge. The appeal grounds, whether in the original form or as proposed in the amendment, in reality dispute the acting Magistrate's ruling in rejecting the double jeopardy argument -- 8 of 13 -- 9 JUDGMENT 1 10 20 30 40 50 60 advanced in the Magistrates Court and his refusing the application to stay the charge. In my view, no matter how the ground of appeal is dressed up that conclusion is inevitable. If the appeal proceeded I would, in truth, be asked to re-hear the double jeopardy issue and the appellant would seek to have the sentence set aside and no sentence imposed in lieu of it, thus arriving at an outcome of the type that was sought in the Court below when the application to stay the charge was made. That, it seems to me, can be the only way in which an appeal could proceed here. If it is to be argued that no penalty was open to be imposed it could only be on the ground that the charge amounted to an abuse of process, that it should be stayed and that the sentence therefore should be set aside. The appellant is seeking to invoke the jurisdiction of this Court by, in a sense, stepping around the limitation imposed on the Court by section 222(2)(c) of the Justices Act, through what seems to me - and I am not being critical of counsel at all in saying this - a series of smoke and mirrors. I do not need to consider the application to amend the notice of appeal by substitution of a new ground of appeal or the issue of enlarging the time within which to appeal. An amendment will not change the position in my view, and it will not change the position that, somewhat regrettably, I find -- 9 of 13 -- 10 JUDGMENT 1 10 20 30 40 50 60 myself in. The appellant is in the unfortunate position he is because of the plea of guilty entered in the Magistrates Court. Mr Honchin in his submissions, referred to several authorities dealing with circumstances where this Court has no jurisdiction under the section 222 of the Justices Act, in a sense by way of analogy, in trying to construe the section in a way most favourable to the appellant. The cases to which he referred dealt with the setting aside of a guilty plea (Long v. Spivey [2004] QCA 118), or an appeal against an order that there was a case to answer (Schneider v. Curtis [1967]Qd R 300). See also Phillips v. Magistrate Robert Spencer and the State of Queensland [2005] QSC 053. However, none of those grounds were argued or indeed are open in this appeal. The submission, in effect, seeks to persuade the Court that it should hear the appeal because the appellant could not appeal the Acting Magistrate's ruling in refusing the stay application. I do not have any issue about the lack of jurisdiction of the Court in respect of those cases to which I have referred and the other cases that Mr Honchin provided to me. I do not think there is any issue about the law in respect of those matters. However, those circumstances do not apply here. As I have said, the appellant by entering a regular plea of guilty has found himself caught by the jurisdictional -- 10 of 13 -- 11 JUDGMENT 1 10 20 30 40 50 60 limitation placed on this Court in the Act. In a sense, and again I do not say this in a critical way, the appellant seeks to place himself outside the limitation by arguing that he should not have been punished because the charge was an abuse of process of the Courts. At the end of the day it is my view, somewhat reluctantly, to find that I do not have jurisdiction to entertain the appeal. The appeal is (in the way in which it is commonly expressed by the Court) incompetent and it should be struck out. However, I will briefly add something about the issues that were proposed to be argued on the appeal without, of course, making any findings or any determination of those matters. The double jeopardy issue was said to have arisen because the appellant had been convicted on 7th April 2008 of exceeding the speed limit by 20 kilometres an hour and on 20 July 2008 of exceeding the speed limit by 40 kilometres an hour, which was a high speed offence. Those offences, having been committed in a period of 12 months, lead to the imposition of a suspension of the driving licence for accumulating excessive demerit points. There was a suspension from the 14th of October 2008 to the 13th of April 2009 in respect of the high speed driving offence which was concurrent with a demerit point suspension from the 15th of October 2008 to the 14th of June 2009. The -- 11 of 13 -- 12 JUDGMENT 1 10 20 30 40 50 60 latter was in respect of an accumulation of points whilst on a good driver behaviour period. The appellant had a lengthy traffic history. Between 1984 and 2008 he had some 19 convictions for speeding offences, 10 of those in the five years from 2003. In the period 1984 to 2008 he had three instances of suspension or cancellation of licence through demerit point accumulation and three demerit point warning letters. Two each of those occurred in the five years from 2003. In this case eight demerit points had been allocated for the high speed offence. They were again used as the basis of the suspension of the driver's licence within the good driving behaviour period. The appellant's argument below was that this resulted in him being twice punished in relation to the high speed offence, contrary to section 16 of the Criminal Code (Qld): that is, he was twice punished for "the same act or omission" as that phrase is used in section 16. There is ample authority that section 16 is concerned with "punishable acts or omissions": The Queen v. Tricklebank [1994] 1 Qd R300; The Queen v. Harris [1999] QCA 392. The charges, that is the high speed offence made pursuant to section 78(1) and 78(3)B, and the breach of the good driving behaviour period made pursuant to Regulation 25(5), would not seem to me to be the same punishable act. I would not have considered that there was any unity of time and place. Nor -- 12 of 13 -- 13 JUDGMENT 1 10 20 30 40 50 60 would I have considered that section 16 had any application to those circumstances. The sentence imposed by the acting Magistrate was modest. It was clearly in range. The small fine was balanced by the period of disqualification, a mandatory period, which, of course, is part of the sentence. I do not think that there would be any circumstance in which it could have been successfully argued that it was excessive, including in the absence of any finding in favour of the section 16 argument. I have considered the issue of costs. The respondent did not raise, or until this morning argue, the jurisdiction point. It was prepared to consent otherwise to the substitution of a new ground of appeal, a course that I have said does not help the appellant. The appeal falls on the jurisdiction issue. In the circumstances I will make no order as to costs. The orders are: (1) The appeal is dismissed; (2) There be no order as to costs. -- 13 of 13 --