Recently, we succeeded in an appeal to the District Court. We appealed a magistrate’s decision to record a conviction on our client’s criminal record. At the appeal hearing the judge decided to change the magistrate’s order so a conviction was not recorded in her criminal record.
This is significant for our client because it means her conviction will now not be revealed in any criminal history check. I also means she will not have to declare the conviction for the purposes of travel.
How we did it
In the Queensland court system, if a Magistrates Court imposes a penalty for a criminal offence which the defendant (or his lawyer) deem as being excessive or not imposed by proper application of the law, the defendant can then appeal to a higher authority to change magistrate's decision, that higher authority is the District Court.
To appeal a magistrate's decision, the person appealing (or their layer) needs to file a notice of appeal within 28 days of the decision. After that you are required to file a written outline of argument with the District Court registry, and serve a copy of that outline on the Director of Public Prosecutions. The DPP will represent the Commissioner of Police in the appeal.
In this particular case our client pleaded guilty to a charge of assault occasioning bodily harm. The assault was the pulling of a barmaid's hair and ripping some of the hair out from her scalp. The offence was aggravated because it was committed in a licenced venue within a safe night out precinct of the Sunshine Coast.
Balanced against this, in our client's favour, was the fact that she had absolutely no criminal or traffic history, she had written an unreserved apology to the complainant, she had undertaken alcohol and psychological counselling, she was gainfully employed, and she pleaded guilty at an early opportunity. She was also supported by her husband in court and by character references which spoke very highly of her usual demeanour and absence of aggression.
I personally appeared for the client in the Magistrates Court and argued that a period of probation without conviction was a suitable penalty.
The police prosecutor argued for a sentence of imprisonment, where my client was either to serve some actual time in prison, or her sentence should be wholly suspended. This outcome would necessitate the recording of her conviction.
The magistrate decided to impose probation on my client. However, the sticking point was he did not make me or the client aware that he was going to record a conviction until the at the very end of the hearing of the case. After I heard this I jumped up and asked for an opportunity to make further submissions about the recording of a conviction. The magistrate rebuffed my request, stating that in his opinion given the pain and suffering caused to the complainant and the fact my client held onto her hair for about a minute, that a recording of a conviction was suitable.
We appealed the case on the ground that it was “manifestly excessive”. I prepared the written argument and argued the case in the District Court personally.
The “manifestly excessive” appeal ground means that if the District Court judge hearing the appeal agrees with the argument that the penalty imposed by the magistrate was so harsh that it did not fall within the magistrate's proper exercise of his sentencing discretion, then the District Court ought to change the outcome.
I supported my arguments with a case from the Court of Appeal [R v ZB [2021] QCA 9], and a case from the District Court [NHR v The Commissioner of Police [2021] QDC 67]. The judge in the NHR case decided that a magistrate recording a conviction for a first time offender who punched another patron in a pub, was manifestly excessive. The judge also reviewed other similar cases where a judge had determined that the recording of a conviction for a first-time offender for a charge of assault occasioning bodily harm was excessive.
The short version is, my argument was supported by good cases.
Representatives for the Director of Public Prosecutions opposed my arguments, stating that the magistrate's decision did fall within the proper bounds of his sentencing discretion.
Conclusion
Ultimately, the judge agreed that the recording of the conviction was manifestly excessive, but also identified an appeal point himself, which was our client had been denied “natural justice” because we were taken by surprise by the recording of a conviction, and I was not given an opportunity to respond to that aspect of the magistrate’s decision.
The judge overruled the magistrate’s order and ordered that no conviction should be recorded in our client’s criminal history.
Experience matters
We at Clarity Law are all experienced lawyers. I practised as a barrister for years before joining Clarity Law as a solicitor. Our experience means we are able to identify when a magistrate has made an error, and properly protect our clients’ rights by appealing that error when it matters; as it did in this case. Fortunately, we very rarely appeal because we have a proven track record for excellent results for our clients!
