Pullen v O�Brien [2014] QDC 92

[15] It can be further noted that although s 146A(2) operates upon the basis that there is a written notification "that the defendant wishes to plead guilty without appearing before the court and that the defendant does not appear and the time and place appointed for the hearing or adjourned hearing of the complaint" and then allows the justices to "proceed to hear and determine the case in the absence of the defendant in like manner as if the defendant had appeared and pleaded guilty" and that s 146A(2A)(b), also provides:

"(b) Before accepting the plea of guilty and convicting the defendant in her defendant's absence under ss (2), the justices shall cause the aforesaid notification, including any submission received with the notification which the defendant wishes to be brought to the attention of the justices with a view to mitigation penalty, to be read out before the court and shall require a statement with respect to the facts relating to the offence to be made by or on behalf of the complainant."

[16] The record available to this court does not include any indication that the procedure stipulated by s 146A(2A)(b) was followed. However that record may not be complete and determining that issue is unnecessary. This is because s 142A of the Justices Act would also have empowered the Magistrate to proceed as she did. This is because the complaint was endorsed with particulars effectively setting out the facts of the allegation and in such circumstances there is no necessity to receive evidence in proof of the prosecution allegation.

[17] The distinction that the applicant seeks to draw between a guilty plea and pleading guilty to the facts, is illusory and in that regard, the magistrate was entitled to deal with the matter on the basis that the applicant had admitted her guilt of the charged offence, or as the Magistrate put it "the guilty plea in writing". However the problems which had been identified as a potential conditional basis of the notification of a desire to plead guilty and which caused the adjournment of the matter in the first instance, so that the applicant had an opportunity to appear before the court, also remained, particularly having regard to the written response insisting on the court dealing with the matter on the written materials.

[18] Otherwise s 142 also provides for proceedings in the absence of a defendant and s 145 deals with the procedure for taking the plea of a defendant present at a hearing of a matter under the Justices Act and it can also be noted that the terms of s 145 and s 146 of the Justices Act, do not provide any express indication of any procedure, in circumstances where a defendant appears before the court, except for the taking of the plea of that defendant and an expectation of a plea of either guilty or not guilty. Further and consistently with the terms of s 145(2) and in the event of a guilty plea, it is generally accepted that such a plea does not, in itself constitute a conviction, but is an admission of all of the essential facts or elements of an offence, which neither the prosecution nor the court is obliged to accept and which requires the act of acceptance by the court, in order to constitute the conviction of the offence.[5]

[19] However the terms of s 145(1) are not expressly limited to the exclusion of other possibilities and reference to s 598 of the Criminal Code (in respect of proceedings on indictment) is instructive. Relevantly to the complications which arose in this case, that section expressly recognises that:

(a) An accused person may demur to an indictment on "the ground that it does not disclose any offence cognisable by the court";

(b) A plea may be made that the court has no jurisdiction to try or hear the matter; and

(c) A plea of guilty cannot be pleaded with any other plea[6] but that an accused person "may plea and demur together".

[20] It may be seen that the provisions of s 598 of the Criminal Code, therefore adopt some recognised common law principles and procedures[7], which must logically also be available, when dealing with matters under the Justices Act, so that issues relating to the jurisdiction of the court and or the validity of the law upon which a charge is based, may be validly taken and adjudicated.[8]

[21] Accordingly the magistrate was ultimately entitled to act upon the basis of acceptance of "her plea of guilty in writing" and then to proceed under s 146A or s 142A of the Justices Act. However that did not obviate the need to deal with the contentions raised by the defendant. Although, it must be noted that neither of those statutory provisions appear to be designed to allow or facilitate the determination of such issues, particularly on the limited written materials that were provided. However, the magistrate recognised the exigencies of this case and proceeded to do so, in the context of observing:

"Whilst I consider it inappropriate for a defendant to require that the court transact its business with the defendant on the basis of the defendant making submissions in writing to the court and are not appearing, in the present case, given that Ms Pullen insists on her plea of guilty being accepted and complains that not having been previously given reasons for various matters, I propose unusually today, as an exception, to place various matters on the record, which I have just commenced to do."

[22] It is largely the expressions of such frustrations in the Magistrate's reasons that are latched upon in respect of the contention of bias, together with a complaint that in the following passage the Magistrate threatened to increase the penalty:

"In the circumstances, I note that the defendant has pleaded guilty. This is an early plea. She has saved the Court and the public, more particularly, the cost of a trial by insisting that her plea of guilty be accepted, and I consider that it is appropriate to contain the fine to the amount on the original infringement notice, which was $300. No sufficiently mitigating circumstances are placed before this Court to justify the reduction. Indeed, if the Court were detained for much longer with the matter, it would be appropriate that the fine be increased from that which is - was on the original traffic infringement notice."[9]

[23] However no such increase occurred and the Magistrate imposed an amount equivalent to the penalty that applied to the infringement notice and appears to be only attempting to explain, how the benefit of the written guilty plea (which she had by then accepted) was given to the applicant, in accordance with s 13 of the Penalties and Sentences Act 1992. Otherwise, it can be noted that the effect of s 16(2)(b) of the State Penalties Enforcement Act 1999 is that the service of an infringement notice does not "limit or otherwise affect the penalty that may be imposed by a court for an offence".

[24] On a review of this matter, it is not established that the Magistrate did other than fairly and impartially determine the case before her[10].

[25] Irrespective of whether the Magistrate was empowered under s 142 or s 146A of the Justices Act, it was appropriate for the Magistrate to have regard to the applicant's admission of the facts alleged against her and, accordingly, the respondent points out that the applicant then confronts the obstacle of s 222(2)(c) of the Justices Act which provides that:

"(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate."

[26] In Smith v Ash[11] this provision was interpreted as having the effect of prohibiting appeals from the Magistrates Court to the District Court only in respect of findings of guilt or convictions, where a defendant has pleaded guilty or admitted the truth of the complaint and not as otherwise preventing an appeal in respect of costs. However the applicant's proposed grounds of appeal extend beyond such a limitation.

[27] Although and as will be explained subsequently, there is, in any event, no substance in the applicant's contentions, the first point to consider is whether, as the Respondent contends, the applicant is restricted to a solitary and narrow contention as to excessiveness of sentence. Whilst and as will be seen below this matter could be decided without reaching a concluded view as to this submission, the point has been taken by the respondent and despite the absence of engagement upon it by the applicant, it is preferable that I fully explain the basis upon which this matter is to be determined and particularly to make clear the basis upon and context in which the applicant's contentions have been considered.

[28] As the decision in Smith v Ash makes clear, the applicant is not able to appeal her conviction and therefore seek to have those orders made on 12 July 2012 convicting her of the offence, set aside. Therefore, it is not open to the applicant to now seek any order dismissing the complaint. However other contentions of the applicant, go to the issue of punishment rather than conviction and conceivably and if there is validity in those contentions, they could lead to an order that she be convicted and not punished[12].

[29] Although the respondent's submission were primarily directed at the effect of the applicant's contentions that were calculated to have the complaint dismissed and therefore her conviction set aside, it extends to a subsidiary question and as to whether, in seeking orders relating to her sentence, the applicant is restricted to only a contention in respect of excessiveness of the sentence and precluded from raising any separate contention as to any specific error in the exercise of the sentencing discretion. That is, in terms of principles established in House v R[13], the question is whether an appellant is restricted only to a contention that the result was "unreasonable or plainly unjust", which is usually addressed in terms of whether or not the sentence is within the appropriate boundaries. In this case, there was obviously no suggestion that the $300 fine imposed on the applicant was excessive in this sense, but rather that, for the specifically contended reasons, that no penalty can or should have been imposed.

[30] An affirmative answer to that question was favoured in Berner v McGregor[14] and it was there noted[15] that specific delineation between grounds raising specific error and a ground of manifest excessiveness or inadequacy of sentence was noted in Hili v R[16] and Wong v R[17]. To those references, the following may be added:

(a) R v Major; Ex parte Attorney-General (Qld)[18] where the observations made in Wong and repeated in Hili, were also noted and applied in respect of an appeal by the Attorney-General under s 669A of the Criminal Code (Qld); and

(b) R v Bugmy[19] and Munda v Western Australia[20]

[31] However, and in my view, it is necessary to bear in mind, in the potential application of observations of this kind, to the question which arises here, that such observations reflect concern with different statutory appeal provisions and typically those of a type which are reflected in s 668D and s 669A of the Criminal Code (Qld). Further, the concern in those cases has typically been with ascribing a test to such a ground, as a distinct and separate consideration to a ground based upon an identifiable and specific error and in the cases referred to, that issue was being considered in circumstances where it was not doubted or accepted that such an appeal could otherwise potentially succeed on the basis of demonstration of some specific error in the sentencing process[21]. Therefore the concern in those cases has been solely with ascribing a separate and practical meaning to the last category referred to in the statement of applicable principles in House v R, in respect of appeals from an exercise of discretion. That is:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

[32] The question is one of statutory interpretation as to the legislative intent behind the enactment of s 222(2)(c) of the Justices Act and that, of course, must be determined on the basis that that enactment occurred prior to the contemporary discussion of the precise meaning to be ascribed to a ground of appeal alleging manifest inadequacy or manifest excessiveness of sentence, in the context and decisions referred to above.

[33] The decision in Smith v Ash is indicative of an approach which is to allow a narrow rather than broad approach to the meaning of s 222(2)(c). In that regard, it is clear that it is intended to exclude the prospect of any appeal against conviction, where there has been a guilty plea or an admission as to the truth of a complaint.

[34] It is not clear as to what is anticipated to be caught by the addition of the words "or admits the truth of the complaint". As has been observed, s 146A(2) operates on the basis of treating a written admission of guilt as if it were a guilty plea. However and although it could have application to a situation where there is such an admission in writing dealt with under s142A, the additional phrase appears to be emphatic of the point that s 222(2)(c) is concerned only with the situation where there is a plea of guilty or something having the same effect.

[35] Notwithstanding the decision in Berner v MacGregor, I am respectfully inclined to a different view. That is, that the provision should be read according to the meaning ascribed to it and reasoning for that conclusion, in Smith v Ash and therefore not in providing any further limitation upon the established principles that apply to appeals against an exercise of the sentencing discretion. The decision in that case that s 222(2)(c) was not to be construed so as to exclude the prospect of an appeal in respect of an order relating to costs, was reached (albeit by majority) notwithstanding the immediately contextual considerations of s 222(2) (and particularly sub-section (2)(b)):

(a) a person may not appeal under this section against a conviction or order made in a summary way under the Criminal Code, section 651;

(b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs;

(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate."

[36] Whilst and as is correctly pointed out in Berner v MacGregor, the decision in Smith v Ash was not actually concerned with this precise point, nevertheless the Court was concerned with a respondent's contention that "s 222(2)(c) was intended only to preclude challenges to guilt or the admitted criminal allegations..."[22]. The reasoning of the majority is instructive:

(a) McMurdo P, at [6] recognised that as Fraser JA explained, in dissent: "...the literal reading of s 222(2)(c) suggests there is no right of appeal. But this seems an unlikely legislative intent and courts are encouraged to adopt a purposive approach to legislative interpretation". Further and at [7], Her Honour explained that the present configuration of s 222 "is the result of the piecemeal legislative approach to amending s 222 rather than a clearly stated legislative intent"[23]. Then and in elaboration of a conclusion at [13], that "the better construction of s 222(2)(c) is that the District Court had jurisdiction to hear the respondent's appeal from the magistrate's costs order", she reasoned:

"[10] The provisions of an Act must be read, if at all possible, so that they are consistent with each other. As I have noted, appeals under s 222 are limited to appeals on orders which dispose of the complaint itself: Schneider v Curtis; a costs order is a final order: Coulter v Ryan. Reading the exceptions to the appellate jurisdiction of the District Court conferred by s 222(1) in s 222(2)(a)-(c) consistently with each other, it seems incongruous that the legislature intended s 222(2)(c) to exclude defendants who plead guilty from appealing in respect of final costs orders whilst allowing complainants where a defendant has been found not guilty to appeal under s 222(2)(b) against costs orders.

[11] I consider that s 222(2)(c) should be construed as prohibiting an appeal from the Magistrates Court to the District Court only in respect of findings of guilt or convictions where a defendant has pleaded guilty to or admitted the truth of the complaint. It should not be construed as prohibiting appeals to the District Court from a magistrate's costs order in those circumstances."

(b) Chesterman JA reasoned and concluded as follows:

"[76] It is no small thing when construing an act of Parliament to depart from the literal meaning of the words chosen by the draftsman. As Gibbs CJ pointed out in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304:

"... it is not unduly pedantic to begin with the assumption that words mean what they say ... . ... If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking 'nothing remains but to give effect to the unqualified, words' ... ".

There are, however, exceptions. The Chief Justice went on:

"There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case ... ."

[77] The same point was expressed by Mason and Wilson JJ in their joint judgment (320):

"Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute".

"... when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."

[78] The point was taken a little further by McHugh J in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214. His Honour thought that (at 242):

"... when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, ... a court may be entitled to disregard the literal meaning"

"... bound by the literal or grammatical meaning of a statutory provision unless that meaning produces an irrational result".

[79] Muir JA in Ravenscroft v Nominal Defendant [2007] QCA 435 at [36] thought that McHugh J's judgment was:

"... indicative of a discernible shift towards a more active approach to fulfilling a perceived legislative intention ... ".

[80] I do not consider that the result of construing s 222(2)(c) literally, by denying a right of appeal against an order for costs where a defendant pleads guilty, irrational. I do consider that such a result would be anomalous, for reasons I will provide, and as giving rise to injustice if, in a case such as the present, there were no right of appeal. A court is therefore entitled to depart from the literal meaning. I accept the force of Fraser JA's reasons and the authorities referred to by his Honour. They indicate that the course of construction which I think appropriate in this case should be embraced with a degree of hesitation and only when a thorough examination of the text of the legislation and its intended purpose satisfies the court that Parliament could not have intended the words it chose to have their literal meaning.

[81] As Fryberg J pointed out in his (dissenting) judgment in Coulter v Ryan [2006] QCA 567; [2007] 2 Qd R 302 at 316, s 222(2) lists exceptions to the right of appeal conferred by subsection 1, and assumes that the items in the list would fall within the ambit of the right of appeal in its absence. His Honour also pointed out that s 222(2)(b) assumes that a right of appeal in respect of an order for costs is conferred by subsection 1.

[82] There is some conformity in the subject matter of each of s 222(2)(a), (b), and (c). By (a) a person may not appeal against a conviction made in a summary way under s 651 of the Criminal Code. That section is concerned with summary offences to which a defendant pleads guilty before a judge dealing with indictable offences, and applies only where there is a plea of guilty to the summary offences. The subsection prohibits appeals to the District Court against a conviction entered on the plea of guilty.

[83] Section 222(2)(b) precludes a complainant from appealing against an acquittal of an indictable offence determined summarily. It equates the summary acquittal to a jury verdict of "not guilty" after a trial on indictment.

[84] Section 222(2)(c), as I mentioned, deals with cases in which the defendant pleads guilty. It prevents a defendant appealing his conviction.

[85] It is to be noted that there is no consistency of language in the three paragraphs of s 222(2). In (a) the prohibition is expressed to be against appealing particular orders. In (b) the result is achieved by specifying the orders which may be appealed against. In (c) there is a specification of the available grounds of appeal, but not the orders against which an appeal may, or may not, be brought.

[86] It is apparent that the paragraphs are concerned with prohibiting appeals against convictions or acquittals where there is an obvious reason for the prohibition. A person who pleads guilty should not sensibly be permitted to appeal against his conviction. That consideration is the subject of paragraphs (a) and (c). Paragraph (b) is concerned to protect a defendant acquitted of an indictable offence tried summarily against a prosecution appeal which could not have been brought against his acquittal by a jury.

[87] The subject matter of the paragraphs is demonstrably not costs. Subsection 222(2)(c) should be understood as a prohibition on appeals against conviction by a defendant who pleaded guilty. It does not extend to any other prohibition."

[37] Also and again notwithstanding the absence of actual discussion of the precise meaning of s 222(2)(c), there is some significance in the decision in Teelow v R[24], where it was decided that the principles set out in House v R, do apply to an appeal against sentence made under s 222, without any suggestion of any restriction upon the application of those principles.

[38] Further and having regard to anomalies that would follow from a different interpretation, it would also appear to be a difficult proposition to accept that a court exercising jurisdiction under s 222 of the Justices Act and conducting an appeal by way of re-hearing pursuant to s 223, would not have power to correct an identified error, notwithstanding that the outcome might not be able to be regarded as being "unreasonable or plainly unjust" in the sense given to that concept in the cases referred to above. For example and postulating an example of an error in respect of the fixing of the appropriate parole entitlement for an offender under s 160B of the Penalties and Sentences Act and where the only question is as to whether it should be a release or eligibility date. Such a contention also does not appear to be borne out by the width of the powers provided to the court in s 225 of the Justices Act and for the purpose of determining such appeals.

[39] The different views which have been expressed in other cases can be seen to largely depend upon the adoption of a literal approach to the interpretation of s 222(2)(c), but it must also be considered that this approach, in part, depends on the application of the discussion of related concepts in cases which have been decided well after the enactment of this provision and in dealing with different statutory context and for a different purpose. In the context of the provisions of the Justices Act dealing with appeals, it would appear that the purpose of this provision was to oust the prospect of an appeal against conviction, where there had been a guilty plea or an admission as to the complaint and not anything else. In this regard, it can be noted that any other outcome would create a significant anomaly, in that the limitation would apply in such appeals (whether by a prosecutor or a defendant) and not apply in circumstances where there is an appeal against sentence, in respect of a defendant who had not pleaded guilty or admitted the truth of the complaint.

[40] That leaves only the grounds referred to in paragraph [9] (c)(i) and (ii) above

[41] The first contention takes, as a starting point, the provisions of s 1 of the Statute of Monopolies 1624[25], which the applicant contends, provided:

"all Monopolies, and all Commissions, Grants, Licenses, Charters, and Letters Patents heretofore made or granted, or hereafter to be made or granted, to any Person or Persons, Bodies Politick or Corporate whatsoever, of or for the sole Buying, Selling, Making, Working or Using of any Thing within this Realm, or the Dominion of Wales ... or of any other Monopolies, or of Power, Liberty or Faculty, to dispense with any others, or to give Licence or Toleration to do, use or exercise any Thing against the Tenor or Purport of any Law or Statute ... and all Proclamations, Inhibitions, Restraints, Warrants of Assistants, and all other Matters and Things whatsoever, any way tending to the Instituting, Erecting, Strengthening, Furthering or Countenancing of the same or any of them ... are altogether contrary to the Laws of this Realm, and so are and shall be utterly void and of none Effect, and in no wise to be put in Use or Execution."[26]

[42] It is then contended that this section is expressly continued in effect by s 5 and Schedule 1 of the Imperial Acts Application Act 1984 (Qld)[27] and that there is no "valid authority for any person... to issue fines and penalties", such as in the form of an infringement notice issued by a police officer in respect of this matter and:

"nor for any person - which includes any Court - to confirm fines, to commandeer assets, homes, vehicles and other property, suspend a driver licence or seek imprisonment due to the inability to pay those fines and penalties"[28]

[43] First there is the misconception that, irrespective of any infringement notice that may have been initially issued in respect of this matter, the proceedings before the Magistrate were in respect of a complaint and summons filed pursuant to the Justices Act 1886, on 24 May 2012. Accordingly it was the offence alleged in that complaint, for which the applicant was convicted and fined by the Court.

[44] The Statute of Monopolies is generally regarded as an original source of Anglo-American Patent law and in contemporary circumstances, is usually only referred to in that context[29]. Some further historical explanation of the Statute of Monopolies and its context as to the modern form of democratic government developed in England and then Australia, is found in Cadia Holdings Pty Ltd v New South Wales[30]:

"[93] It is thus appropriate here to note the course of significant legislative curtailment of prerogative fiscal powers in the years before 1688. This curtailment perhaps began with the Statute of Monopolies of 1623, which effectively put an end to the raising of Crown revenue from franchising by letters patent the manufacture, distribution or sale of a wide range of articles of commerce. The laws which followed dealt with such matters of fiscal significance as the levying of a substantial fine in place of acceptance of a compulsory knighthood and the right of "purveyance and pre-emption", being the buying up by the Crown of provisions at a valuation without consent of the owner. The mischief with which legislation such as this dealt was of a particular intensity because it reflected the struggle between the executive and the House of Commons, which came to be seen as having reached its climax with the flight of James II to France late in 1688 and the consequent legislative activity of the Convention Parliament."

[45] Also and notwithstanding that provision of the Statute of Monopolies is not picked up by the Imperial Acts Application Act 1984 (Qld), it can also be noted that s 2 of that enactment provided:

"And all monopolies, and all such commissions, grants, licences, charters, letters patents, proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things tending as aforesaid, and the force and validity of them, and every of them, ought to be, and shall be for ever hereafter examined, heard, tried, and determined, by and according to the common laws of this realm, and not otherwise"

[46] More fundamentally there is also misconception as to the authority of the parliaments of Australia to enact laws that repeal (impliedly as well as expressly) any imperial law that was brought to the colonies or states of Australia, particularly as recognized in the Australia Act 1986 (Cwlth). Similar misconception has been

identified as underlying various arguments put in other cases, in reference to the provisions of Magna Carta and the Bill of Rights, both of these imperial enactments also being included in Schedule 1 to the Imperial Act Application Act 1984[31].

[47] There is no merit in any contention that the applicant may have been invalidly convicted and/or punished for an offence against s 69(2) of the Transport Operations (Road Use Management - Road Rules) Regulation 2009.

[48] The second contention latches on to s 115 of the Constitution of Australia and also misconceives that provision. Because it is clear that no real question arises involving the interpretation of that provision, there is no need to be concerned as to the application of s 78B of the Judiciary Act 1903 (Cwlth) or to the absence of any notices pursuant to that section[32].

[49] Clearly s 115 of the Constitution restricts the power of the States to make legal tender. However and pursuant to s 5(xii) of the Constitution, the Commonwealth can and has done so, through the enactment of the Currency Act 1965 (Cwlth) and the Reserve Bank Act 1969 (Cwlth).

[50] The applicant's submission anticipates reference to these enactments and incorporates a fallacious argument that s 16 of the Currency Act, in the context of s 9 and s 11 of that act, permits only coin as legal tender and as a later enactment, overrides s 36 of the Reserve Bank Act (which otherwise provides for Australian banknotes as legal tender) but not the constitutional provision in s 115.

[51] However and as pointed out by the respondent, these contentions overlook and omit reference to s 8 of the Currency Act 1965, which provides:

(1) The monetary unit, or unit of currency, of Australia is the dollar.

(2) The denominations of money in the currency of Australia are the dollar and the cent.

(4) The equivalent in the currency provided for by this Act of One sovereign or pound in the currency provided for by the repealed Acts is Two dollars, the like equivalent of One shilling is Ten cents and the like equivalent of One penny is five-sixths of a cent.

(1) A tender of payment of money is a legal tender if it is made

in coins that are made and issued under this Act and are of current weight:

(a) in the case of coins of the denomination of Five cents, Ten cents, Twenty cents or Fifty cents or coins of 2 or more of those denominations--for payment of an amount not exceeding $5 but for no greater amount;

(b) in the case of coins of the denomination of One cent or Two cents or coins of both of those denominations--for payment of an amount not exceeding 20 cents but for no greater amount;

(c) in the case of coins of a denomination greater than Fifty cents but less than Ten dollars--for payment of an amount not exceeding 10 times the face value of a coin of the denomination concerned but for no greater amount;

(d) in the case of coins of the denomination of Ten dollars--for payment of an amount not exceeding $100 but for no greater amount; and

(e) in the case of coins of another denomination--for payment of any amount.

(2) For the purposes of subsection (1), a coin shall be deemed to be not of current weight if it has become diminished in weight by wear or otherwise so as to be of less weight than the weight prescribed as the least current weight of that coin."

Contrary to the applicant's contentions, this provision does not have the effect that legal tender is restricted to coins but and on the contrary, makes the tender of payment by coins, legal tender, subject only to restriction as to the amount which may be tendered in respective denominations of coins, including other than gold or silver coins.

[52] Not only is this contention apparently misconceived in these ways, but effectively the same contention has been rejected as spurious, in other cases.[33]

[53] There is no merit in any contention that the applicant could not be punished in the way ordered by the Magistrate.

[54] Accordingly, the appropriate order is that the application for extension of time for the filing of a notice of appeal, is refused.

[55] Although initially and in its written submissions, the respondent sought an order for costs, it was subsequently indicated that no such order was pursued. This occurred in lieu of response to directions allowing further material to be filed in support of that application (the entitlement to which had been contested by the applicant)[34].

[1] s 223 Justices Act 1886 and see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25], Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].

[2] Teelow v Commissioner of Police [2009] QCA 84 at [2]- [4], Tierney v Commissioner of Police [2011] QCA 327 at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319

[3] [2006] HCA 44; (2006) 228 CLR 45

[5] R v Collins; Ex Parte 8A-G [1996] 1 Qd R 631.

[6] Which also includes pleas of autrefois convict or acquit (s 17 Criminal Code) or as to receipt of a royal pardon (s 8 Constitution (Office of Governor) Act 1987 and of s 18 Criminal Code).

[7] See R v Carroll [2002] HCA 55; (2002) 213 CLR 635.

[8] This would also necessarily include the prospect of other pleas or issues such as autrefois acquit or convict, raising a pardon and also claims of abuse of process.

[9] Magistrate's Decision at p60, l-9 ll 35-60

[10] Cf Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Webb v R [1994] HCA 30; (1994) 181 CLR 41

[11] [2010] QCA 112; [2011] 2 Qd R 175 at [11]- [12] per McMurdo P and [87]-[91] per Chesterman JA.

[12] Which is a common order made in appropriate circumstance e.g. where s 16 of the Criminal Code has application to prevent repeated punishment for the same act or omission.

[13] (1936) 55 CLR 499 at 504-5

[14] [2013] QDC 33 at [15], although there was the stated qualification and at [30] the lack of merit in any suggested specific error was also canvassed

[16] [2010] HCA 45; (2010) 242 CLR 520 at [58]

[17] [2001] HCA 64; (2001) 207 CLR 584 at [59]

[18] [2011] QCA 210 at [88]- [92] and [62]

[21] Although establishment of some immaterial error may not always result in intervention in the outcome; e.g. see: R v KAC [2010] QCA 39

[22] [2010] QCA 112; [2011] 2 Qd R 175, at [32]

[24] [2009] QCA 84 at [20]- [21]

[25] (1623) 21 James 1 Ch 3

[26] Expressed in a more modern english version. Various versions, in different or more or less modernised forms of English, can be found, but this is a sufficiently indicative version, for present purposes.

[28] Applicant's written Outline of Argument at p4

[29] E.g. Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 and Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; (2013) 88 ALJR 261.

[30] (2010) 242 CLR 195, at [93]

[31] See: Items 1 and 9, respectively and e.g. see Skyring v ANZ Banking Group Limited [1994] QCA 143, Carnes v Essenberg; Lewis v Essenberg [1999] QCA 339 and Lowe v Gunter [2003] QSC 150, at [3]-[4].

[32] See Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [16]- [19] and the cases therein cited.

[33] E.g. see: Re Skyring's Application (No. 2) (1985) 59 ALJR 561, Re Cusack (1986) 60 ALJR 302, Lowe v Gunter [2003] QSC 150, at [8]-[9] and Clampett v Kerslake (Electoral Commissioner of Queensland) [2009] QCA 104.