District Court of QLD2481 / 16

Appeal against Magistrates court conviction

OUTLINE OF ARGUMENT

Simon Hickey29 September 2016

Of : 1 / 15 tradelink ave Hillcrest 4118

Address for document service:

PO Box 1139 Slacks Creek 4127 QLD

Decision appealed against:

Appeal in District court against criminal conviction of Simon Hickey on:

  • 22 June 2016 Magistrates court by
  • Magistrate Bradford Morgan
  • Charges:
  • 2 x make false or misleading statement (section 234 of customs act)
  • 2 x unlawfully import prohibited imports (section 233 of customs act)
  • 1 x each relating to offences which occurred in 2010
  • 1 x each relaying to offences which occurred in 2013

Outline of argument why I believe an appeal should be granted in Point form

  1. Defence Case was sabotaged whether deliberately or accidentallyby defence lawyer John Ide of Beenleigh. 5 Main st phone 3801 8758

Covered in detail in expansion 1

  1. Defence made only a single application for adjournment after lawyer Ide basically did a runner with the evidence brief, as well as all the evidence Hickey intended to adduce at trial. Further, Ide had made representations to Hickey right up until Christmas that all was well and he was still working on brief – leading Hickey to believe there was no reason to seek adjournment earlier

Covered in detail expansion 2

  1. Magistrate denied this adjournment and Hickey had to defend the matter with only diary paper and a biro. No brief. None of the evidence he had intended to adduce. No copies of legislation. Nothing. Hickey has never sought an adjournment before ever, though his time spent before the courts has been minimal.
  2. Magistrate denied the adjournment on the grounds Hickey had not sought legal advice or attempted to contact John Ide again since his initial contact in September 2015. Hickey stated numerous time to the court clearly that he had contacted Ide repeatedly during this time to obtain either the Lawyers recommendations or a return of the brief if no work had been done. Even in the written decision this mistake is present. Hickey made every reasonable attempt to secure legal representation, and when discovering late in the piece (December) that ide was either too busy, too forgetful or both, Hickey made every reasonable attempt to recover brief from Ide, and obtain replacement brief from prosecution.
  1. Errors in Magistrates decision relating to witness testimony, figures discussed on witness stand relating to the strength of the items seized from Hickey. Magistrate Morgan refers to greater than 50mW in places where the actual terms disagreed on during cross examination were only 1mW

Examination of transcript and decision will vindicate this position

  1. Prosecution was notified on 22 January that defence Lawyer had lost Defendants Brief, and Hickey had requested another in PDF form offering to print it himself at his own cost. Prosecution waited until 29 January to supply replacement knowing trial was due to start on 1 Feb. Under normal circumstances one week to wait for the brief is pretty good, but considering it was already made, one simply had to copy a pdf file and email, the 7 day delay is very damaging to the defence.
  1. Magistrate again erring in judgement in her decision stating that the Monday and Tuesday were public holidays when in fact it was only the Tuesday 26th January. If PDF had of been emailed on Monday Hickey would have had a real chance at obtaining all the evidence he intended to adduce again from local stores.
  1. Prosecution lied deliberately to the court when making submissions against the adjournment sought by Hickey. The defence understands this is a serious allegation to make but when reviewing the transcript there can be no other conclusion reached:

After careful consideration the prosecution made the following statement:

“we oppose the adjournment on the grounds that we have flown witnesses in from Darwin and other places only because the defence insisted they be brought here”

  1. At no time has the defence / defendant ever spoken to or contacted this prosecutor. At no time or in no place or in any correspondence verbally or written had the defence ever spoken to the prosecutor regarding witnesses. If the prosecutor made this statement which I immediately claimed to be false, why wasn’t any evidence offered as to its authenticity? Why was I not permitted to question the validity of this statement under threat of contempt of court by the magistrate?
  1. If the prosecutor had of said something like ‘the witnesses were assembled at the defences knowledge or request’ , then maybe this could be excused as a mistake or slip of the tongue. But when the words ‘The defence insisted they be brought here’ were spoken directly to the court - that implies that the defence strenuously or repeatedly made this statement.
  1. I never made any such statement. And I challenge any prosecutor’s office member or himself to produce any evidence that I did. The words used also indicate that the person using them had a thorough working knowledge of the English language. As native English speakers, the word ‘insisted’ cannot be interpreted any other way.

The defence even agreed to take the witnesses testimony or written statements to the court as unopposed or accepted 100% if he could have an adjournment. The defence relied not on the witness statements at all, but points of law and customs regulations as what it believes was a sound and legal defensive argument. (The defence doesn’t even know if this is legally possible – to just accept their testimony as given- but it shows to what lengths he was willing to give ground that he be allowed further time to prepare his case)

Again on the opposition to the adjournment by the prosecution: though this aspect may not be as serious – it’s certainly worth noting:

  1. The offences allegedly occurred in 2010 and 2013. The prosecution seeking to oppose the adjournment cited difficult availability of witnesses having come from far away as Darwin for trial. Had the prosecution brought the trial in 2010 or 2011 - a reasonable amount of time, the witnesses may not have been in far flung parts of the country. The prosecution had four years to bring the trial from the offences alleged to have occurred in 2010. They only decided to bring charges in 2014 – then delaying trial until 2016. A situation created entirely by themselves, then used to push for a trial at the exact moment Hickey had no chance of decent defence.
  2. Had the customs brought charges in 2010 or 2011 then witness availability wouldn’t have been an issue
  3. Had customs brought charges in 2010 there may not have been another alleged incident in 2013
  4. Had the prosecution given me the brief a week earlier (when I requested) I would have been fine
  5. Had they allowed me a further week I would have been fine
  6. The prosecution sought and obtained no less than 4 adjournments even thought they’d had 5 years already to prepare. I requested only 1 and was denied because the prosecution would be ‘inconvenienced’
  7. Though legally I wasn’t “caught by surprise” it could be argued that I was. I had made every reasonable attempt to prepare for the case and through sabotage or poor organization or just incompetence, the defence solicitor ruined any chance I had of a fair hearing on 1 Feb 2016
  8. Prosecution received the email on the 22 Jan as government IT records will show. The only reason to wait until 29 Jan to send a PDF was to hinder the defence.
  9. Had Ide given back the bag of evidence in December when asked I would have been fine
  10. Had Ide not notified the prosecution of my intended defence, when the question of destroyed evidence and zero tests being done the charges would have been struck out immediately
  1. The prosecution cited me having given a false address on an incoming passenger card. Though never stated any attempt to contact me between 2010 and 2014. They made no attempt to contact me or issue a summons until 2014 and therefore an address given in 2010 would logically be hit and miss. They could have stopped me any time when I flew in and out of the country in 2011, 2012, 2013 (when I was again stopped by customs) and 2014. At least 6 times I came through their controlled areas, and they could have handed me a summons or made attempts to press charges on any of those occasions. They didn’t and then cited witness unavailability as a concern for their case, when pressing the matter in 2016.
  1. This situation is nearly entirely of their making.
  1. It is the defence’s contention that each time he flew in and out of Australia from 2010 to 2014 gave customs ample opportunity to issue a summons
  1. The police located me on their first attempt to serve a summons at my previous Eagleby address, I have regular dealings with the Dept. Justice through Electrical licensing and run an electrician business which by necessity answers the phone nearly 24 / 7.
  1. The idea that customs couldn’t locate me for four years is absurd
  1. Absolutely no evidence is still available for the 2010 incident. No photos, no tests. It is the defence’s contention that the items brought in on both occasions were within the legal threshold for the laser emissions, and in the case of the sprays were imitations or toys and that no testing was done by myself or any prosecution before items were destroyed. A point that cannot even be argued by prosecutors as zero of these items were retained or even tested prior to destruction deliberately by the state.
  1. The prosecutor’s submissions that the items were destroyed because I had not requested them back is just as absurd as his statement that I had insisted the witnesses be brought from Darwin.
  2. Why would I request them back?
  3. Why would I want more witnesses to be flown in from Darwin?
  4. If I had of requested them back would customs have given them to me?
  5. Any child knows the answers to all these questions – that the prosecutor can make these blatantly untruthful statements to a court of law and not be rebuked, questioned or even asked to provide and evidence to support is a very serious cause for concern.
  1. That I was prevented from following up on these allegations in the first instance and asked the prosecutor to supply some evidence to support the truthfulness is again cause for concern. If a court of law isn’t a place where we establish truth from fiction, then where is?
  1. The only witness for the state that the lasers were above the legal threshold of 1mW admitted during cross examination that “he did not know which mathematical symbol < or > meant which” and his exact quote was “without the numbers I would not know.”
  1. Mathematically, while the position of the numbers can be incorrect, the meaning of the > symbol never changes.
  1. The number can be left, right, above behind or around it, but > the meaning will never change.
  1. These were the labels on the lasers that were destroyed, and the only person who seized them from me admitted he did not know whether <1mW meant greater than 1 miliwatt or less than 1 milliwatt.
  1. The lasers in question were never tested, and the magistrate accepted the witness testimony and stated that she ‘accepted that he knew the items were illegal because they were above 1mw because he had read the label :

Immediately after he admitted not knowing which symbol was which.

There ends the summary of points, each which are elaborated here :

  1. Defence not given ONE requested adjournment of case to prepare adequately for trial
  1. The offence had occurred in 2010, and the trial was set for 2015, though finally happened in 2016. The prosecution sought and obtained 4 adjournments in 2015, didn’t supply a brief of evidence until 2015, and I (the defence) applied for one adjournment on 1 Feb 2016 and was denied. The Magistrate Bradford Morgan ordered the trial to proceed. I had to go to trial with just my diary, no brief and no prepared statements
  1. The reasons given by the magistrate for her decision to proceed were:
  1. I had had 4 months to prepare for trial and that I had not made attempt to contact the lawyer until just prior to Christmas 2015, after initial contact in August / September 2015

During 2015 after repeated adjournments by prosecution all of which I opposed, but was not granted – a trial was set for 1 Feb 2016. It was approximately late August 2015. I soon made time to see lawyer John ide in Beenleigh, in his office, and paid for his time.

•On the day I approached Ide and spoke with him at an appointment at his office, regarding my case, defence strategy and trial rules relating to me presenting evidence. Once I had left he immediately phoned or emailed the prosecution team. How and what was said is not possible to ascertain but the entire defence strategy was relayed. The prosecution became immediately aware of all the evidence I had intended to adduce. Evidence which I had given to Mr Ide for him to examine and come back to me regarding possible success chances and relevance to the trial, and legal matters. While I know that eventually the prosecution would have been notified what evidence was to be adduced: in this case plastic imitations nearly identical to the items seized, itemsactually identical to the items seized and on sale freely in Australia.

•At no time did Ide ask or mention that he would have to speak to the prosecution regarding any matter of this case. If he simply called them to request more information or something innocuous, then he should have told the client (me). When I spoke to him directly in the following days and directly asked him whether he had notified them (prosecution) he denied it flatly.

•It is impossible that the prosecution could have found out any other way

a.Ide then made every indication (every month) he was working on the brief and it would be ready in time right up until December / January 2015 when I basically demanded it back – as he had made no progress. I was then informed he could not locate it.

b.Why did Ide wait so long to tell me it was missing? Was it really missing or was this an attempt to sabotage the defence? One can only assume sabotage as: Ide already notified the prosecution of the entire strategy, and Ide dodged Hickey’s calls and emails, still to this day never returning one of either.

Magistrate Morgan in denying my adjournment on the grounds I ‘had not sought legal representation, or had not made any further attempts to do so after September 2015’ is completely false.

  • I stated categorically in a clear voice to the court on numerous occasions: that “I made at least 4 calls to his office during the 3 months and visited 3 times in person. Mr Ide was contacted in October, November, and again in December, regarding this case. Contacted by phone and in person at his office”. I then offered up John Ide’s contact details to verify my claim. To which I was told ‘why would the court need that information’. The transcript will prove what was said
  • In December I had to ask for the brief back because Ide had not returned it, nor made any recommendations or progress, and the case was coming closer. In December around December 10 I made it clear to Mr Ides only assistant / secretary that I needed all of it back ASAP as I had to prepare for the trial. Christmas approaching, busy at work, I received no contact from Ide regarding the where about s of my bag or brief.
  • Christmas came and went with Ides office unattended or not returning calls. Early January finally talked to his office to be told brief could not be located and that no progress had been made. I then sought to contact prosecutor to obtain new brief. It could be argued that this contact should have been made earlier but with Christmas and new year’s and believing as late as December that ide would either make his report or give me the brief back, I hadn’t done so.
  • That no attempt was made to verify my claims, yet they were dismissed out of hand is very disturbing to say the least. If Mr Ide could not be contacted as we were at trial, then that might be valid, but for nobody to follow it up even during the day or after? Or even take the details for verification.
  • Mr Ide’s contact details are supplied at rear: if anybody wishes to verify now.
  1. All the (any officer of) court had to do was a cursory investigation, only a phone call would have been required: “Hi did a Simon Hickey come to your office during 2015 and ….”
  1. We understand that the magistrate isn’t paid to do investigations, but this is a serious accusation to make: that I hadn’t prepared at all myself for a criminal trial and that the hearing proceeds anyway. Then to repeat that claim later in writing.

Original summary of points 1 and 2 are covered above. To support point 3, a copy of the decision is attached with disputed points in orange

Point 4 is covered here with copies of emails:

  • The trial was approaching on February 1, 2016
  • The defence contacted prosecutor 22 January (requesting new brief) and was not even replied to until 5 days later. The reply on the 27 January contained no brief, just a threat of extra charges for printing or administration fees. Only after another 2 days on the 29th the defence obtained only a partial brief by email. Of these 7 days only 3 were work days but the defence believes that it was still an unreasonable and intentional delay considering every other email had been answered within 24 hours
  • Again Magistrate Morgan erred in judgement stating that I had emailed at midnight on 22 Jan, Friday afternoon: It was 10 pm on Friday 22 Jan. It was still after hours I agree but that’s my workload over summer.
  • She also said that it was immediately prior to a public holiday which was again untrue. The holiday was the 26th, there was a working day on Monday the 25th. And most Working Aussies worked Friday 22, Saturday 23, Monday 25 and Wednesday 27.
  • The defence will supply this evidence to the timeline attached
  • If the defence had been supplied with a brief of all the PDF evidence on or around the 25 January, then it would have had adequate time to prepare the intended defence. It was only seeking the electronic copies of documents and not any DVD or CD or any physical evidence, which was stated clearly in the email dated 22 January. That the prosecution failed to supply anything at all until the 29 January we believe to be an unreasonable and intentional delay.
  • The defence believes the email was opened and read on the 22 or 23 January but not actioned until the 27. Which could be proven by an IT person with access to government email records
  • The email on the 27th contained what I believe was the magistrates primary reason for denying the adjournment. In the email I made the statement ‘let’s see how much this will cost the Queensland taxpayers’ The email is attached at rear. These emails were available to Magistrate Morgan on the day.
  • The defence believes this statement was taken out of context, if one reads the entire email. Despite its angry nature, it was making the point that for the triviality of such a matter, flying in witnesses from other states, waiting 5 years before bringing charges, the amount of government resources that had been wasted already – were totally beyond the defence’s control. The defences assertion that if the state wished to prosecute they should have done so immediately in 2010 or in a reasonable amount of time after. The reason witnesses were so far away being because of this delay in prosecution. Not the defendants email.
  • The angry email was written because the prosecution had intentionally delayed sending a brief, and come the 27 January still had not sent one. It was at this time the email was written. The prosecution had replied and not even bothered to attach a PDF file of the brief. The defence had offered to print it himself in the original email a week earlier, if they would just send an attached file.
  • Copies of all emails attached
  • If the brief had of been sent even a few days earlier, a week would have been adequate time to prepare. As it was, 48 hours simply wasn’t enough time. One adjournment was sought, and as it was my first ever application for an adjournment, it was expected one would be granted.
  • Defence now knows that he should have sought an adjournment prior to the trial date, but not being a lawyer, assumed that simply asking the judge on the day of hearing and providing some supporting evidence would be sufficient. To that end he supplied the name and contact details of alleged defence lawyer in question

The points I can prove: to summarise: