Ajax v Bird [2009] QDC 354

1-1 [2009] QDC 354 DISTRICT COURT PPELLATE JURISDICTION A UDGE BRABAZON QC J o 425 of 2009 N AYMOND LAURENCE AJAX R Appellant nd a HRISTOPHER ROGER BIRD C Respondent RISBANE B .DATE 19/10/2009 . UDGMENT J -- 1 of 4 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Now this is an appeal by Mr Ajax against his conviction in the Magistrates Court at Caboolture whereby he was fined $300. The charge leading to that conviction was one of failing to present his vehicle for inspection when required by notice to do so. The evidence is that he tried to present it for inspection but there were no police officers at the station at the time. He was originally charged with a number of offences. The transcript of the Magistrates Court hearing shows that all the other offences were withdrawn. One of the offences charged was driving a vehicle with the defective lights and, as Mr Ajax points out, that was withdrawn. He, therefore, says, how can it be that he should be liable for failing to present a vehicle at the time when there is no allegation that he was driving a vehicle with defective lights. I have also allowed him to tender a statement by a mechanic to say that at an inspection at 9.30 a.m. on the 7th of the 11th 2007 his parking lights were seen to be working properly. To understand the consequences of those changes it is necessary to look at the transcript of what happened. A speaker said to be "unidentified" in the transcript but I take it to be the representative of the police said that charges were going to be withdrawn leaving one for a plea of guilty. Sergeant Barnes, for the police, said, "There will be a plea to that matter and will be treated separately". Otherwise no evidence was advanced on the other charges. -- 2 of 4 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 He then recounted to the learned Magistrate that at the police inspection parking lights were not working, that a notice was given. He had to produce the vehicle to the Bribie Island Police by a certain time and police records showed that that production had not taken place. His traffic history, which is a moderate one, was also tendered. Then Mr Walsh, the solicitor on Mr Ajax's own behalf, made some remarks. In effect, he said that his client did produce the car but that in substance the police were not available at the station. It was admitted that there was still a requirement for him to have the inspection and he left without taking it back for an inspection and for reason the offence was made out. In all the circumstances, Mr Walsh submitted, the Magistrate should impose the barest minimum fine possible. The Magistrate replied that subject to the history he was sympathetic to that. There was then no more discussion about the amount of the fine. Mr Ajax is here, I should note, and says that the police before the hearing said that the fine would be perhaps $10. Even if that is a completely true allegation here as to what was said, of course, there is no suggestion that it was said in open Court so that it might have some influence on the Magistrate. Nonetheless, there is always a risk in any punishment being imposed which is not the subject of submissions by each side. It is always wise to discuss the proposed punishment in any Court so that submissions can be made about it, if necessary. -- 3 of 4 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 As the outline for the prosecution points out the maximum punishment allowed by law in this case was $2,250 and it is true, indeed, that the fine of $300 fell far short of the maximum fine. However, in my opinion, because of the way matters had gone and because of the remarks by the Magistrate and submissions by counsel two conclusions should be reached here. That is to say, although Mr Ajax complains about his conviction with regard to the inspection, after driving a defective vehicle had been withdrawn, it must be kept in mind that he did plead guilty to one offence and that the appeal here is one against penalty not against conviction. It is simply impossible for this Court to consider upsetting the conviction because of those circumstances. However, attention has to be paid with regard to the fine. Bearing in mind all the circumstances no proper weight was given to his effort to have the vehicle inspected and, in my view, that's what it would have resulted if it had been taken into account into a smaller fine. A $100, in my view, would have been appropriate. Therefore, the orders of this Court are these; that the appeal is allowed and the amount of $300 in the order of the Magistrates Court should be varied to $100. So having said that, it's the end of the matter. ----- -- 4 of 4 --