Hurley v Elliott [2006] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION: Hurley v Elliott [2006] QCA 165

PARTIES: HURLEY, Anthony Richmond (applicant) v ELLIOTT, PCSC Paul J (respondent)

FILE NO/S: CA No 63 of 2006 DC No 33 of 2005

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Bundaberg

DELIVERED EX TEMPORE ON: 19 May 2006

DELIVERED AT: Brisbane

HEARING DATE: 19 May 2006

JUDGES: McMurdo P, Jerrard JA and Muir J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal refused

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – OTHER MATTERS - where applicant was convicted of possessing a dangerous drug, possessing items used in connection with a dangerous drug and possessing property obtained from supplying a dangerous drug – where applicant was fined $2,000 in default of six months imprisonment with one month to pay / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS - QUEENSLAND - PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant appealed to the District Court - where his appeal was twice listed for hearing but applicant did not appear either time so appeals were struck out – where applicant now applies for leave to appeal under s 118 DCA claiming he had a doctor's appointment at the time of the more recent District Court hearing – whether District Court judge was justified in striking out applicant's more recent appeal - whether applicant has any reasonable prospects of success in this application for leave to appeal against either his conviction or sentence

COUNSEL: The applicant appeared on his own behalf / P F Rutledge for respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: The applicant Mr Hurley has not appeared today in this application although he was given notice of today's hearing on 11 April 2006; nor has he filed any material in support of the application. He was convicted in the Magistrate's Court at Bundaberg on 4 May 2005 of possessing a dangerous drug (cannabis), possessing things used in connection with a dangerous drug (water pipe), a similar charge concerning electronic scales and possessing property obtained from supplying a dangerous drug ($52.80).

It is not entirely clear from the material whether the applicant pleaded guilty but this seems likely from the way in which the proceedings were then conducted and from the endorsements on the Bench charge sheets.

The Prosecutor outlined the facts upon which the charges were based. Police searched the property at Bargara where the applicant lived with his wife and others. They found bags of cannabis, a water pipe and $52.80 in cash. During the search, the police noticed that the applicant went to a shed where he moved the bags of cannabis, money, scales and a water pipe in a container in the shed.

The magistrate then asked the applicant whether the facts were correct. The applicant responded, "To a degree, yes, I guess they are, your Honour." The magistrate asked whether he wished to say anything. The respondent replied,

"Just that I also had bipolar before I started smoking marijuana...And I suffer also from anxiety disorder which sometimes things like this can be quite overwhelming...I haven't found the correct medication yet to be able to balance things."

The magistrate explained that, despite the applicant's problems, the applicant was not entitled to use unlawful drugs as a solution and that he must change his lifestyle. The magistrate convicted him of the four charges and fined him $2,000 in default six months imprisonment with one month to pay.

The applicant appealed from that conviction to the District Court under s 222 Justices Act 1886 (Qld). The appeal was listed for hearing on 13 February 2006 in the Bundaberg District Court together with an appeal from the applicant's co-offender, Ms Alanna C Hurley, apparently the applicant's wife. The judge was told the matter had twice before been listed for hearing in the District Court. On the more recent occasion the appeal was struck out when the applicant did not appear but then reinstated after he claimed that he had been ill. The applicant had been served with a notice of the latest hearing date of 13 February 2006. The court had heard nothing from the co-offender, Ms Alanna Hurley, but the applicant had contacted the court saying that he was ill on 13 February and unable to attend because he had a doctor's appointment.

His Honour struck out the applicant's appeal stating that he did so because the applicant had failed to appear on other occasions; although the appeal had been struck out once before it had been reinstated, yet, despite this indulgence, the applicant had again failed to appear and had done nothing more than to phone the court by way of any explanation.

In his application for leave to appeal to this Court the applicant states as the reasons why the Court should grant leave as, "Unable to [attend] due to illness. I wish [to] have my appeal heard".

"His contentions in his original notice of appeal to the District Court were that, "I am a pensioner (disability) for mental illness. I receive $180.00 per week to pay fine I need $500, not all evidence correct. Police did not give us evidence we requested and that a Judge ordered. Police dropped supply charges but I'm still charged for POS property and namely $55 approx, if no supply how can I have property from supply. Judge W J McKay [discriminated] against us because of our disabilities and would not let us have our [own] speaker speak for us and we were unable to defend ourselves in a way that we all have the right to. We suffer from a disorder that [makes] it almost impossible to speak or defend ourselves, justly. The Judge is clearly [discriminatory] against us and for having a slanted and outdated views [sic] on our mental disabilities and not in line with medical views. Penalty too high" (The errors are in the original).

It is not entirely clear from his notice of appeal to the District Court whether the applicant intended to appeal against his conviction or only his sentence or both. Because he made full admissions to the magistrate, any appeal against conviction would seem to have been futile. He has not demonstrated in the District Court or here that the sentence imposed was outside a sound exercise of discretion, bearing in mind the availability of fine option orders. His persistent failure to attend at the hearing of his appeal in the District Court without providing independent proof of any adequate explanation and his omission to prosecute the District Court appeal in a timely fashion appear to fully justify the order made by the District Court judge. Further, the applicant has not shown that he has any prospects of success on an appeal to this Court if leave to appeal were to be granted. I would refuse the application for leave to appeal.

JERRARD JA: I agree with the reasons given by the learned President. I add that although the amount of the fine appears heavy, as the applicant has a number of prior convictions for cannabis related offences and in the past fines of up to $1500 have been imposed on him. His record of convictions shows that he has previously been granted fine option orders so he is clearly aware of the possibly of applying for those.

MUIR J: I agree with both sets of reasons and with the order proposed.

THE PRESIDENT: The application for leave to appeal is refused.