Diplock v Bennett & Anor [2009] QDC 222

1-1 [2009] QDC 222 DISTRICT COURT APPELLATE JURISDICTION JUDGE IRWIN No 3279 of 2008 SIMON DIPLOCK Appellant and TREVOR CHARLES BENNETT AND ANOTHER Respondents BRISBANE ..DATE 13/07/2009 ORDER -- 1 of 7 -- HIS HONOUR: In this matter on the 29th of October 2008 the appellant was convicted ex parte under section 142 of the Justices Act by the learned Magistrate at the Cleveland Magistrates Court on five counts. Two were of disobeying the speed limit under the Transport Operations Road Use Management Rules, and three were offences contrary to the Transport Operations Road Use Management Vehicle Registration Regulation 1999, sections 10 and 76, subsection (2), paragraph F; the Motor Accident Insurance Act 1994 section 20 subsection (1); and the Transport Operations Road Use Management Act 1995 sections 113 and 114, subsection (1); of respectively permitting the use of a vehicle that was not a registered vehicle; permitting the use of a registration plate attached to a vehicle that has been recorded in the register as having been cancelled; and permitting someone else to drive a motor vehicle which was uninsured. He had previously entered pleas of not guilty to those offences and the matter had been adjourned for hearing to that date. In fact an earlier date that the matter had been set down for hearing was vacated on the written application of the appellant and a notice of adjournment was sent to the appellant in relation to all five charges saying that the hearing of the charges had been adjourned to the 29th of October 2008 at 9 a.m. There was a further handwritten note on the notice of adjournment to the effect, "Please note the hearing date of 7 October 2008 has been vacated and is now listed for 29 October 2008 at 9 a.m." 1-2 ORDER -- 2 of 7 -- In addition, a notice to person permitted to go at large without bail under the Bail Act was forwarded by the Court to the appellant which also stated that he was to appear and surrender himself into custody of the Magistrates Court at Cleveland on the 29th of October 2008 at 9 a.m. The appellant has appealed on a number of grounds, the first of which is procedural irregularities and improprieties by the Court and both respondents. In a sworn affidavit by the appellant in support of the appeal he states that he did attend at the Court to be ready for the hearing at 9 a.m. on that date. He says that he arrived four minutes early. He also deposes that the illuminated sign over the Court said, "Closed", and for several minutes he was in conversation with local police who knew him in connection with DRI and his relentless walking, and no paging of his name was heard by any of them, and when he was finally able to gain entry he was told the matters had been heard and that he had been paged three times. He deposes that he told the learned Magistrate that he had been outside the Courtroom with the "Closed" sign illuminated and in conversation with police four minutes before 9 o'clock, and that no paging of his name had been heard. He says that the Magistrate's attitude was "Adamantine" which, consulting the Macquarie dictionary to expand my own personal knowledge of the use of the English language, is defined at impenetrable, which suggests that the Magistrate was not interested in the application that he was making at that time. 1-3 ORDER -- 3 of 7 -- Not only is that proposition not contradicted in any affidavit material, but both respondents have made inquiries of the Magistrates Court at Cleveland and that has determined that despite the fact that the matter was listed for hearing at 9 a.m. on the 29th of October, the hearing commenced at 8.53 a.m. and concluded at 8.58 a.m. In those circumstances the respondents both appropriately concede the appeal on the basis that the first ground of appeal has been established. Clearly it is an irregularity for a matter to be dealt with ex parte in circumstances where the matter has been called on prior to the time at which the appellant was required to appear before the Court. Further to that it is an irregularity that when the appellant appeared before the learned Magistrate seeking what was at least implicitly a re-hearing of the matter pursuant to section 142 subsection (6) of the Justices Act 1886, the Magistrate did not exercise his discretion to order a re-hearing when such a re-hearing should have been ordered in the circumstances that I have described. In those circumstances the appropriate order, as Mr Rashleigh has submitted to me, and Ms Litchen concurs in this, is that I set aside the order of the learned Magistrate and remit the matter to the Cleveland Magistrates Court for it to be re-heard. Notwithstanding the fact that I intimated that I would make such an order, the appellant argued that his appeal should otherwise be heard because, for example, his second ground of appeal is that the orders be struck out, quashed and dismissed because the summonses were not properly served, thus 1-4 ORDER -- 4 of 7 -- denying him the opportunity to plead not guilty. I'm not sure what that ground of appeal really means because in fact he did enter a plea of not guilty and the hearing on that plea of not guilty would have been heard and should have been heard on the 29th of October 2008, if the events that I have described had not happened. Further, he argues that the summonses were not legally valid when sworn and thereby null and void at law, and he also says that he wasn't even in the car when the offences occurred. There were other grounds of appeal relating to an excessive sentence and also to an issue of defraying the costs orders by virtue of costs that had been denied to him in a previous committal proceedings. But it is in relation to the other three matters that the appellant would like me to, notwithstanding the order I have intimated I will make, proceed to hear his arguments about those issues and resolve them today. However, under section 223, subsection (1) of the Justices Act, an appeal under section 222 is by way of re-hearing on the evidence described as the original evidence given in the proceeding before the Justices. Although under subsection (2) this Court may give leave to adduce fresh additional or substituted evidence described as new evidence if the Court is satisfied that there are special grounds for giving leave. However, it seems to me that in this case there are no special grounds for giving such leave as these are all appropriately matters which should be dealt with by the Magistrates Court. All of them, despite the affidavit by Mr Diplock, the 1-5 ORDER -- 5 of 7 -- appellant, may be the subject of calling of further evidence as part of a trial, including evidence on preliminary matters as to the validity of the summonses and the manner in which those summonses have been served. The appropriate place to deal with those matters is the Magistrates Court pursuant to a re-hearing, rather than this Court effectively conducting the Magistrates Court's trial entirely afresh on fresh evidence adduced before it. In those circumstances the order of the Court is as follows: 1. Pursuant to section 225 subsection (1) of the Justices Act 1886 I set aside the orders of the learned Magistrate made in the Cleveland Magistrates Court on the 29th of October 2008. 2. Pursuant to section 225 subsection (2) I remit the matters to the Cleveland Magistrates Court with a direction that those matters be reheard. 3. I make no order as to costs. I note that the appellant has expressly said that he seeks no costs of these proceedings. Unless there's any other matter that is the order of the Court. MR RASHLEIGH: Could I just - when your Honour was reciting the times I think your Honour said 8.53 p.m. and 8.58 p.m. HIS HONOUR: Oh, sorry, it should've been 8.53 a.m. and 8.58 a.m. I don't think even the Magistrate at Cleveland sits those hours, and I'll amend the transcript to reflect that slip. Yes, Mr Diplock. APPELLANT: Your Honour, you will note in my affidavit that I encountered Mr Batista, my distinguished colleague, Mr Batista and his Associate on their way from the Courthouse roughly opposite that Barrister's building three doors up from the Courthouse. 1-6 ORDER -- 6 of 7 -- HIS HONOUR: Yes. APPELLANT: That would've been at approximately five minutes before 9. HIS HONOUR: Yes. Well I accept----- APPELLANT: If he was able to be that far away from the Courthouse at 8.55 I submit, your Honour, that the matter was heard long before 8.53. HIS HONOUR: Well whether that's right or not, and you didn't make that point when those times were originally raised by either counsel for the respondents, the point is whether it was heard at 8.53, 8.58 or 8.45 or 8.48 for that matter to take your five minutes into account, the point is that the matter was heard before 9 a.m. which was the earliest that you were required to appear before the Court and therefore on any of those times the order that I have made for the reasons I have given would follow. APPELLANT: Oh, thank you, your Honour. HIS HONOUR: Yes, thank you for bringing that to my attention, Mr Diplock. Unless there's any other matters those are the orders in this proceeding. So I may as well leave it there and then we'll see how things go from that point of time. I thank everybody for their assistance. Thank you. ----- 1-7 ORDER -- 7 of 7 --