Enders v McLennan [1996] QCA 312

[1996] QCA 312 COURT OF APPEAL DERRINGTON J MACKENZIE J WHITE J CA No 228 of 1996 NEIL MALCOLM ENDERS Respondent and PETER ROLAND McLENNAN Applicant BRISBANE ..DATE 30/07/96 JUDGMENT -- 1 of 4 -- 300796 T8/SJ/22 M/T COA173/96 2 JUDGMENT DERRINGTON J: The applicant for leave to appeal was convicted in the Magistrates Court at Brisbane on 21 December 1995 on two counts: the first, a false and reckless mis-declaration of dangerous goods for air transport in contravention of Civil Aviation Act 1988; and the second, in respect of a consignment other than in accordance with the Civil Aviation Regulations. On the first count a fine of $2,000 was imposed and on the second, a fine of $6,000 was imposed. The applicant filed an appeal in the District Court but, on the second hearing of the matter before the learned District Court Judge, the prosecution took the point that the appeal there was incompetent as the offences charged were indictable although heard summarily and that, for that reason, the District Court had no jurisdiction. That, as it turns out, was correct and the appeal was dismissed. The applicant claims that he then suffered from a heart condition which required his confinement to hospital for a period of about 15 days in May and that contributed to the further delay in this matter. Unfortunately, he has provided no evidence about that and the Court has been required to rely upon statements from the Bar table which are not altogether matters that might be comfortably accepted but, for the purpose of this application, are sufficient. The fact that he duly took steps to pursue his appeal, albeit in the incorrect jurisdiction, affords this Court the opportunity to be fairly liberal in its approach to the question of leave. However, that is not an end to the matter. The prosecution -- 2 of 4 -- 300796 T8/SJ/22 M/T COA173/96 3 JUDGMENT contends that leave should be refused because the applicant has no real prospects of success in respect of either count. As to the first count, it is the view of the Court that the matter deserves to be argued although I would make it clear that this does not necessarily imply any confidence in the result. It means only that the matter is such as to warrant consideration by the Court. In respect of that, the question of punishment would follow as well. In respect of the second count, it is my view that the matter was adequately disposed of by the Magistrate by his determination of the facts in such a way as to render the appeal of such little merit that the application should be refused in that respect. That, however, does not apply to the issue of the punishment that was imposed in respect of that count. The decision to allow the applicant the opportunity of appealing the first count makes it somewhat easier to grant him leave to argue the question of the punishment in respect of the second count and, in my view, he should be granted leave to appeal in that respect also. MACKENZIE J: I agree. WHITE J: I agree also. DERRINGTON J: The order of the Court is that the applicant is granted leave to appeal in respect of his appeal concerning the first count referred to including the question of the severity of the punishment. His application should be refused in respect -- 3 of 4 -- 300796 T8/SJ/22 M/T COA173/96 4 JUDGMENT of the question of his conviction of the second count but that he should be granted leave to appeal in respect of the punishment imposed in respect of that count. ----- -- 4 of 4 --