Brandon v Fay [2010] QDC 86

[2010] QDC 86 DISTRICT COURT APPELLATE JURISDICTION JUDGE HARRISON No 2766 of 2009 JON-PATRICK BRANDON Appellant and GEOFFREY ALLAN FAY Respondent BRISBANE ..DATE 01/03/2010 ORDER -- 1 of 3 -- 1-2 ORDER In this matter, the appellant, Jon-Patrick Stuart Brandon was convicted of an offence of disqualified driving in the Magistrates Court at Bundaberg on the 12th of August 2009. I note that within the one month allowed for the filing of a notice of appeal, he provided instructions to his solicitors, Smith and Associates, to institute the necessary appeal. It would appear however, from the information contained in an affidavit of Mitchell Andrew Rawlings, a law clerk, which was filed by leave on the 5th of October of 2009 and an affidavit of Jessie Alice Galbraith, a solicitor, which was filed by leave on the 5th of October 2009, that the wrong form was initially left with the Registry in Brisbane. There was no contact from the Registry to the clerk or solicitor responsible after that and there was an assumption to the effect that the appeal had been lodged on time. It was established out of time that that was not the case because the wrong form had been used and the actual notice of appeal in correct form was filed on the 2nd of October 2009. It seems to me that the delay was through no fault on the part of Mr Brandon and it would be unfair to penalise him in relation to that, particularly when there are issues in relation to both conviction and sentence, to be argued before me here today. Taking those matters into account, I exercise my discretion under section 224 of the Justices Act 1886, as amended, and I -- 2 of 3 -- 1-3 ORDER extend the time for filing the notice of appeal up to the 2nd of October 2009. ... HIS HONOUR: I give you leave to amend, by adding ground 6 to read, "The Magistrate was wrong in law in admitting evidence on identification by Sergeant Fay"; by amending ground 7 to read, "The Magistrate was wrong in law in the use of photographs (Exhibits 1 and 4) as an aid to identification of the accused"; and I give you leave to amend by adding ground 8 to read, "In the alternative, the sentence imposed by the Magistrate was manifestly excessive in the circumstances". ----- -- 3 of 3 --