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YTL v The Attorney General for the State of Queensland

 

[2020] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

YTL v The Attorney General for the State of Queensland [2020] QDC 44

PARTIES:

YTL

(appellant)

v

THE ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

(respondent)

FILE NO:

1070/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

27 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2019

JUDGE:

Rosengren DCJ

ORDER:

The appeal is allowed and the conviction is quashed.

CATCHWORDS:

APPEAL AGAINST CONVICTION – CONTEMPT – CONTEMPT IN FACE OF COURT – SUMMARY DISPOSITION – PROCEDURAL FAIRNESS – WHETHER CONTEMPT – where the appellant was a party to a proceeding – where the appellant was convicted of contempt for not answering a question from the Magistrate – where the appellant was late for court and the question related to who had driven the appellant to court – whether the question was a lawful order or direction within s 50(1)(e) of the Magistrates Court Act 1921

Justices Act 1886 (Qld) s 222, s 223, s 225, part 9 div 1

Magistrates Court Act 1921 s 2, s 50(1)(e), s 50(2), s 50(6), s 50(7)

Uniform Civil Procedure Rules 1999 (Qld) s 924, s 924(a)

Allan v R (2013) 36 VR 565, applied

Bradshaw v Attorney –General 2 Qd R 7 at 16, applied

Bode v Commissioner of Police [2018] QCA 186, cited

Clampett v Attorney-General of the Commonwealth of Australia 181 FCR 473, applied

Coward v Stapleton (1953) 90 CLR 573, applied

Fox v Percy [2003] HCA 22, applied

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, applied

Keeley v Justice Brooking (1979) 143 CLR 162, applied

Lacey v Attorney-General of Queensland (2011) 242 CLR 573, cited

Lewis v Ogden (1984) 153 CLR 682, applied

Teelow v Commissioner of Police [2009] QCA 84, cited

Tomasevic v Travaglini (2007) 17 VR 100, applied

R v Vasiliou [2012] VSC 216, applied

Registrar of the Court of Appeal v Raad [1992] NSWCA 207, applied

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, cited

COUNSEL:

M Power for the appellant

K Ashen (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

The Attorney General for the State of Queensland for the respondent

  1. [1]
    On 15 March 2019, the appellant was charged with and found guilty of contempt of court.  He was fined $900 and a conviction was recorded.  A Notice of Appeal was filed on his behalf on 29 March 2019 on the basis that the charging of and conviction for the offence were not in accordance with the law. 
  2. [2]
    For the reasons that follow, the appeal should be allowed on the grounds that the appellant was not afforded procedural fairness and his conduct did not constitute the offence of contempt.  

Nature of s 222 appeals

  1. [3]
    The appeal is brought under Part 9 Division 1 of the Justices Act 1886 (‘the Justices Act’).  Section 222 provides that a defendant aggrieved by an order made by a justice in a summary way on a complaint for an offence, may appeal within one month after the date of the order to a District Court judge. 
  2. [4]
    Section 223 of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the magistrate.  However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  3. [5]
    On a rehearing, subject to the powers to admit fresh evidence, the court conducts a rehearing on the record of the hearing in the Magistrates Court to determine whether the convictions are the result of some legal, factual or discretionary error.[1]  Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[2]
  4. [6]
    In Fox v Percy[3] Gleeson CJ, Gummow and Kirby JJ said at [25]:

“Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”

  1. [7]
    Recently, in Bode v Commissioner of Police[4], McMurdo JA confirmed that the task of an appellate court conducting a rehearing is as described by the High Court in Robinson Helicopter Company Inc v McDermott as follows:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”[5]

  1. [8]
    Pursuant to section 225 of the Justices Act, the appellate court can confirm, set aside or vary an order or make any other order considered just.

Relevant facts

  1. [9]
    The appellant is non-English speaking.  He was charged with a summary offence, namely contravention of a domestic violence order.  It came on for trial before the Magistrates Court at Richlands on 15 March 2019.  The appellant required an interpreter.  The trial was scheduled to commence at 9am.  The appellant was not at court.  The trial commenced in his absence at 9.58am pursuant to s 147 of the Justices Act.
  2. [10]
    At approximately 10.15am the police prosecutor informed the magistrate that the appellant had arrived at court.  By this time the complainant was giving evidence.  The appellant proceeded to the Bar table with the interpreter.  All subsequent communications between the magistrate and the appellant were via the interpreter.  
  3. [11]
    The magistrate asked the appellant why he was late.  The appellant explained that he had been sick for a week and that he had been driven to court as he was not able to drive.  The magistrate enquired of the appellant as to who had driven him and the appellant responded, “my colleague drove me here”.
  4. [12]
    The following exchange then occurred between the magistrate and the appellant:

BENCH:   Who’s your colleague?

INTERPRETER:   He’s just wondering, Your Honour, why you’re asking him how did he get here and who drove him here.

BENCH:  Because I’m entitled to.  I’ll ask you anything I like.  Because you’re late.  You’re late.  We’ve already started the trial. 

INTERPRETER (DEFENDANT):   Yeah.  Okay.  I’ve arrived, and I know that I was late, and your prerogative to ask me why I was late.  

BENCH:   Yes.  So who’s the person who drove you? 

INTERPRETER (DEFENDANT):   Why are – your Honour   

BENCH:   No, no, you don’t ask me.  You answer my question.  Why – what’s the problem with answering my question?  Who drove him here? 

INTERPRETER (DEFENDANT):   I don’t need to answer this question.  I come with anybody.  Of course.

BENCH:   All right.  I warn you, sir, that you’ll be held in contempt if you don’t answer my question, and I’ll put you in the watch-house; okay?  Answer my question.  Who drove you here today?  I’m asking this because you’re late and this would be relevant to any question of bail on any other charge at the end; okay?  I’m trying to work out whether you’re lying to me or not.  Because you were meant to be here at 9 o’clock.  You were not.  You have put the court to great inconvenience.  We’ve already started the trial. 

INTERPRETER (DEFENDANT):   You have all the rights to ask me why I was late, but it’s not my obligation to answer who drove me here.

BENCH:   Okay.  All right.  I’ll get my clerk to organise the watch-house.  Stay here, sir.  What I’m going to do is the watch-house keepers are going to come up, and you can have a think about whether you’re going to answer my question.  The rea – I’m puzzled why you wouldn’t answer a simple question.  I’m trying to work out whether, in fact, you’re lying about being – why you’re being here late; okay?  And you can think about this.  If you don’t want to answer my question, I’ll hold you in contempt and I’ll put you downstairs in the cells.  All right.  So I’m going to adjourn for a couple of minutes.

SGT STEVENSON:   Yes, your Honour.

BENCH:   And you can have a good think about whether you want to answer that question or not.  All right.  

INTERPRETER (DEFENDANT):  Think about what?

SGT STEVENSON:   Yes, your Honour.

BENCH:   Charlie, can you organise the watch-house to come up.

  1. [13]
    The court was adjourned at 10.20am and the appellant was then taken into custody.  Upon resumption at 10:47am the following exchange ensued:

BENCH:   All right, sir.  I’ll ask you again or I’m going to charge you with contempt.  Okay?  You say that you came here by a friend driving you and the reason I’m asking you about that is because you’re late, the trial has started and I want to check out whether you’re telling me the truth or not about your delay in being here.  Okay?

INTERPRETER:   Okay.  He’s just repeated the thing twice.  He says, you are – your Honour are – it’s your prerogative to ask me any question   

BENCH:   Yes.

INTERPRETER:      related to the – the case.

BENCH:   Yes.

INTERPRETER:   I did come late and I apologise for being late.

BENCH:   Yes.

INTERPRETER:   You can ask me why I was late   

BENCH:   Yes.

INTERPRETER:      but I will not answer any question concerning who drive me here because this has nothing to do with the case.

BENCH:   No, I’m directing you to answer the question.  Answer it or I’ll hold you in contempt.  I think you’re lying to me now.

INTERPRETER:   Okay.  I’m not in contempt of the court and 1   

BENCH:   No, answer the question.  Yes, go on.  Sorry, give me the translation, yes, anyway.

INTERPRETER:   Okay.  I’m – I’m not, you know, in contempt and I accept all the questions, but I – this is not a question I need to answer.  I have been a person who has always been abiding by the laws.  I have never broken the law and I don’t think I should be put in prison.

BENCH:   It’s not about that.  Sir, you have to if I ask you, to answer one of my questions.  It’s a lawful order.  It’s not unreasonable.  Okay.  You’ve told me – you told me a friend drove you here.  Okay.  I’ll ask you this one.  You told me a friend drove you here.  I’m simply asking for that person’s name.

INTERPRETER:   He says I – I understood everything the   

BENCH:   Yes.

INTERPRETER:      judge, your Honour, said and you don’t have a right to ask me this question and if you keep asking me this question for 10 years I will not answer.

BENCH:   Very well then.  You’ve told me that a friend drove you here.  On the basis of that, I’m simply asking you to answer the question.  I can’t see how that would incriminate you in any way if you say a friend drove you here.  So in the circumstances, sir, I charge you – and I’ll draw the charge up, but it’ll be [the appellant], you are charged that on the 15th of March 2019 you committed a contempt of court in breach of section 50, subsection (1)(e) of the Magistrates Court Act 1921 in that you without lawful excuse disobeyed a lawful order, namely, to answer my question at the hearing in this proceeding.

INTERPRETER:   I’m not a criminal and you are torturing me to become a criminal   

BENCH:   I’m not torturing you.

INTERPRETER:      and it was repeated twice.

BENCH:   Look, the only reason why you wouldn’t have to answer my question, sir, is if the answer would tend to incriminate you.

INTERPRETER:   I’m not a criminal and I’m not incriminating myself by not answering the question. 

BENCH:   Okay.

INTERPRETER:   You can ask me how I got – why I was late, but whether I came from the sky or crawling   

BENCH:   Yes.

INTERPRETER:      or somebody drove me, this has nothing to do with the case.  I have a lawyer.  I know the laws and I don’t think I need to answer this question.

BENCH:   Well, it doesn’t matter whether you need to or not.  It’s a simple question which anybody else could answer in a simple way and the fact that you are refusing to answer it makes me suspicious about you being late today and why you were late and that’s an important question as for bail ongoing in this matter and the way in which I might punish him at the end because he’s held up the proceedings by being late.  Can you just say to him I just find it unusual why he’d be so resistant on this point.  Can he give me an explanation as to why he’s so resistant to tell me the person’s name.  Is he worried they might get into trouble or something?

INTERPRETER:   No, this is not my concern that he would get into trouble, but the – the fact that I was put in – cuffs were put on my hands, this has never happened to me before and I never thought it would happen to me.

BENCH:   I   

INTERPRETER:   I’m not a criminal and the fact that you want to put me in jail just because of this trivial question is   

BENCH:   Then answer it.  Then tell him then why not answer it if you think it’s trivial.

INTERPRETER:   Okay.  The court – it does not – it should not concern the court how I came here.  I came late.  You’re right to ask me why I came late and I have a certificate   

BENCH:   Okay.

INTERPRETER:      from the hospital where I was because I was sick and I have a certificate that proves that I was sick and I’m still taking tablets and medication.  I haven’t seen my children for few months and now I am being not judged, but – not persecuted, but pushed to say – to answer a question that I don’t think I need to answer.

BENCH:   It doesn’t matter.  Look, at the end of the day, you can say this:  it doesn’t matter what he thinks.  I am the court.  I ask the questions.  He does – if he doesn’t like what I’ve done, he can take me on appeal, but I’m the one in charge.  It was a question just to test him on whether he had a good excuse for being late because we – here in this court all the time people are late and we just don’t take it at face value every little excuse they give because often what you’re told is not accurate and I’m just testing him to see what the answer was.  He doesn’t want to answer it so I think you can explain that to him   

INTERPRETER:   Yep.

BENCH:      but the next time I’m going to explain to him is that I have to formally ask him why he should not – to show cause why he should not be punished and I’m entitled to hear from him and then I’ll make a punishment. 

INTERPRETER:   Okay.

BENCH:   Can you explain those things to him.

INTERPRETER:   All right.  Okay.  I understand and I appreciate that you are the judge, you are the court and you can ask the questions you want, but you have put me – you put cuffs on my hands which is the first time it happens to me and I’m not a criminal and I didn’t do anything to deserve that and you can ask me any question, but I can come with anybody I want to come with.  I don’t have to tell you who I came with or who drove me here.  I know the law and I – I understand that I have rights and   

BENCH:   It’s – yes, anyway, go on.

INTERPRETER:      one of my rights is that if a question does not concern the case, I don’t answer it.

BENCH:   No.  Well, that’s not the case at all.  He hasn’t shown cause why he should not be punished for contempt.  I find him in contempt of court pursuant to the section.  He has demonstrated that he is simply being obstructionist for no good reason.  And he has persisted with that throughout.  So I am now going to move to punish him.  He have a criminal history?

---

BENCH:   Yes.  Yes, the maximum punishment for what I’m doing right now is three years punishment.

INTERPRETER:   Anything you say is accepted.  Nobody can contradict you.

BENCH:   Well no, the District Court can and the Court of Appeal can.

INTERPRETER:   Okay.

BENCH:   Well, I’m just writing the charge.  Everyone can take a seat.

---

INTERPRETER:   I would like to have a lawyer to handle this issue.

BENCH:   Sure.  Okay.  Fine.  Well, I’ll – he’s remanded in custody and he can then see the duty lawyer downstairs.

INTERPRETER   He was saying, “I’m not a criminal and I’m going to ask a lawyer to take care of this issue.”

BENCH:   That’s fine.  But he’s remanded in custody now.  And I’ll adjourn for half an hour.  Take him downstairs.  He can see the duty lawyer.  He can get his advice about it before I proceed to punishment.  We’ll adjourn for half an hour.

INTERPRETER:   How long?

BENCH:   Well, until he sees the duty lawyer.  He’s likely to get a jail term from this.  I’m likely to send him to jail for it.  You don’t get to not answer my questions, okay?  So you can see a lawyer about it and then we’ll go to punishment.  So I’ll - ---

  1. [14]
    The court was adjourned at 11.07am and the appellant was then taken into custody.  Upon resumption at 12.11pm the following exchange ensued:

BENCH:   Yes.  Please be seated.  Mr Foster.

MR FOSTER   thank  you, your Honour.  For the record, Foster, initial R.H., solicitor for the Cridland and Hua Lawyers appearing as duty lawyer on behalf of [the appellant].

BENCH:   Yes.  He’s already been found guilty of contemp.  We’d move to a point of punishment.

Power to punish for contempt

  1. [15]
    Criminal contempts take many forms.  The power to punish for contempt in the face of the court is intended to address and deter conduct that interferes with the proper and effective administration of justice.  Therefore, the exercise of the power must be itself consistent with this principle.  In Bradshaw v Attorney –General[6], Thomas JA said:

“It is also recognised that the contempt power exists to vindicate the integrity of the court and of its proceedings, not to vindicate the personal dignity of a judge, and that the power of punishing for contempt should be used sparingly.”

  1. [16]
    The tendency to interfere with the administration of justice is an objective element and has frequently been described as a “real and definite tendency as a matter of practical reality” to interfere with the administration of justice.[7]
  2. [17]
    Section 50(1)(e) of the Magistrates Court Act 1921 (‘the Act’) confers upon the Magistrates Court the power to punish for contempt if the person without lawful excuse disobeys a lawful order or direction of the court at the hearing of any proceeding.  The section also specifically provides that the court may ask the person to explain why the person should not be punished and may deal with the person immediately.  Alternatively, the court may adjourn the matter to be dealt with on a stated date.[8]
  3. [18]
    Pursuant to s 50(2) of the Act, a contempt must be dealt with in the way prescribed under the Uniform Civil Procedure Rules 1999 (Qld) (‘the UCPR’)[9]Rule 924 provides that if a person is brought before the court for contempt, the court must orally inform the person of the contempt charged; ask the person to show cause why punishment should not be imposed; after hearing the person decide the matter; and then make an order for the person’s punishment or discharge.
  4. [19]
    There is no general proposition to the effect that the use of the summary procedures should, if possible, be avoided.  However, the power to deal with the person immediately is discretionary.  This is confirmed by the language of sections 50(6) and (7) of the Act.  If this power is exercised, the magistrate is effectively placed in the position of prosecutor, witness, jury and judge.[10]  Even though it is a criminal offence, the onus of proof is effectively reversed and the accused is required to justify or otherwise defend their conduct.[11]  This has the consequence that the procedural safeguards which apply in ordinary criminal proceedings are not necessarily adhered to. 
  5. [20]
    It is for this reason that the High Court and other superior courts have emphasised that a summary trial for contempt by the same judge is ‘extremely rare’[12], should be ‘exercised sparingly and with great caution’[13] and only in serious cases.[14]  An example of such a case is where the conduct is such that it cannot wait to be punished because it is urgent and imperative to act immediately to preserve the integrity of a trial in progress or about to start.’[15]
  6. [21]
    Proceedings for contempt are criminal in nature with the criminal onus and standard of proof.  While it involves a summary proceeding it:

“does not imply any dispensation with the hearing rule, due process, proper representation of the party or proper analysis or evaluation of the facts relevant to the charge by the judicial officer, or the exercise of the jurisdiction in a way other that entirely consistently with the oath sworn by the judicial officer.”[16]

  1. [22]
    The authorities clearly establish that no person ought to be punished for contempt of court unless the specific charge against them be distinctly stated.  Rule 924(a) of the UCPR provides that this can be done orally, provided of course that the person understands the charge.  The person then needs to be given an opportunity of answering or to ‘show cause’.  This involves affording them the opportunity to consider the charge and if necessary, to seek further legal advice, or an adjournment.  There is also a requirement that the judicial officer be satisfied beyond reasonable doubt that the person is guilty of the charge.  In doing this the judicial officer needs to keep at the forefront of their mind the unusual position they are in.  This principle must be rigorously insisted upon.[17]
  2. [23]
    In Clampett v Attorney-General of the Commonwealth of Australia[18], Black CJ said:

“When an important question requires the careful balancing of powerful competing considerations affecting the administration of justice in its application both with regard to the integrity of the system of justice generally and to the rights of an individual accused of a criminal offence, one may expect to see at least some indication – other than the result itself – that such a process has been undertaken.

There may of course be circumstances that really allow for no other conclusion than that the contempt has to be dealt with then and there.  Violent and unequivocal behaviour that interrupts a jury trial at a critical moment can be imagined as such a case, and an instance in which the power to have the offending person removed from the court is not of itself sufficient to secure the interests of justice.”

  1. [24]
    As to the overriding duty of a judicial officer to ensure a fair trial in the context of a self-represented party, Bell J said in Tomasevic v Travaglini[19]:

“Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity.  Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds.  Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.  Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial.  The proper scope of the assistance depends on the particular litigant and the nature of the case.  The touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.  The Family Court of Australia has enunciated useful guidelines on the performance of the duty.”

Procedural fairness

  1. [25]
    The magistrate, faced with the perceived contempt, determined to exercise summary jurisdiction and to hear the charge himself.  I have concluded that the process by which the appellant was charged and convicted was flawed.
  2. [26]
    The transcript reveals that the appellant was first taken into custody only approximately five minutes after he arrived at court.  He remained in custody for some 27 minutes between 10.20am and 10.47am.  It is apparent from the transcript that for at least some of that period he was placed in handcuffs.  I can see no need from the point of security for this to have occurred.  Further, there was no suggestion that the appellant presented any risk or that he might abscond.  He was placed into custody without being given any opportunity to submit otherwise.  He was told the reason why was so that he could have a ‘good think about’ whether he wanted to answer the magistrate’s question as to the identity of the person who had driven him to court.  At this time he had not been charged with, let alone found guilty of any offence. 
  3. [27]
    On his return to court, the magistrate gave the appellant a further opportunity to provide a response to his question regarding the identity of the person who had driven him to court.  The magistrate said that if a response was not forthcoming that he would charge the appellant with contempt.  The appellant reiterated his earlier response that he would not be answering the question because it was irrelevant to the substantive hearing for which he was before the court.  
  4. [28]
    During the following exchanges the magistrate informed the appellant that as he had not shown cause why he should not be punished for contempt, that he had been found guilty of the offence and that the magistrate would move to punish him.  The magistrate then enquired as to whether the appellant had a criminal history.  It was at this point that the appellant requested time to speak to a lawyer.  This request was accommodated by a half hour adjournment during which the appellant was again placed in custody.  He was told that he could speak with a duty lawyer during that time and that when the court resumed the magistrate would impose a sentence for the offence.  
  5. [29]
    The chronology of events above confirms that the appellant who required an interpreter, was also self-represented in the conduct of the proceedings up to the point of the magistrate finding him guilty of the contempt charge.   
  6. [30]
    The question in the present case is whether the failure of the magistrate to refer the matter to another magistrate, adjourn the matter for a time, or to at least offer the appellant an adjournment before he was called on to answer the charge amounts to a breach of the rule of procedural fairness.  In my view, it does.  The proper administration of justice did not require immediate action in response to and to deal with the appellant’s conduct in refusing to answer the magistrate’s question. 
  7. [31]
    The magistrate was not the only witness to the asserted contempt.  A police prosecutor and interpreter were also present.  If the magistrate was to hear it himself, it was necessary for him to ensure that the rights of the appellant to a fair trial were preserved.  He was required to proceed with great caution, because he was in the position of witness, prosecutor and judge.  No reasons were given for the magistrate’s decision to hear the matter himself.  
  8. [32]
    The evidence establishes that there were matters that pointed in favour of referral to another magistrate.  The appellant’s conduct could not be described as serious.  Although there was a summary trial pending, there were no compelling reasons of urgency or otherwise that pointed to a need in the broader interests of the administration of justice for the magistrate to hear the charge himself, notwithstanding the compromise that that would involve with the fundamental principles of justice.
  9. [33]
    Once the magistrate decided to hear the charge there were two important propositions that had to be borne in mind.  The first is that it was essential that the magistrate ensured that the rights of the appellant to a fair hearing were preserved.  This is in circumstances where contempt is a criminal offence which has the potential to attract a term of imprisonment.  The magistrate told the appellant that he was likely to be sentenced to a term of imprisonment.  The magistrate was mistaken as to the duration of this, telling the appellant that it was three years’ imprisonment when it is in fact one year’s imprisonment.  While a period of imprisonment was not ultimately imposed, a conviction for contempt is serious in the sense that it is a conviction for an offence criminal in nature.  The magistrate exercised his discretion to record a conviction for the offence.  Second, as the authorities demonstrate, the magistrate was required to proceed with great caution because of the unique position he had assumed. 
  10. [34]
    The transcript which I have set out above demonstrates that the magistrate did not observe all of the essential aspects of procedural fairness.  For a fair hearing of the charge of contempt, the magistrate was required to have set out the charge so that the appellant understood it; afforded the appellant the opportunity to consider the charge and, if necessary, seek further legal advice, an adjournment or further particulars, to give the appellant the opportunity to state whether he pleaded guilty or not guilty.  
  11. [35]
    The application of this process was highly relevant to how the appellant may have sought to defend the charge.  He may have desired to take issue with the procedure which the magistrate intended to take.  He may have sought to argue that another magistrate should hear the matter, or that proceeding pursuant to s 50(1)(e) of the Act was inappropriate in the circumstances.  Whether these applications may have been met with any success is not the point.  Further, in my view he had a compelling defence to the charge and the reasons for this are detailed below.  However it was too late in that the magistrate had laid the charge and found it proved.  If the magistrate was going to hear the charge, it would have been far more prudent for him to have adjourned it for a suitable time.  It would also have been helpful for the magistrate to have explained that the purpose of doing so was to enable the appellant to consider his position, and if he wished to take advice.
  12. [36]
    It follows that the magistrate’s discretion miscarried.  He did not exercise the caution necessary, indeed vital, in the circumstances.  Aspects of procedural fairness, fundamental to ensuring a fair trial were ignored, with the result that the appellant was improperly convicted of a serious charge and a conviction was recorded.  I have reached this conclusion having taken into account the haste with which the decision to charge him with contempt was made, the nature of the proceedings and the absence of any explanation by the magistrate of the reasons for taking the course he did.  The absence of any reason is a strong indicator of error where the balancing of competing considerations, including the fact that a period of imprisonment was in contemplation, pointed in favour of referring the hearing to another magistrate.  The appeal should be allowed and the conviction set aside.

Whether contempt

  1. [37]
    While the law permits the fullest discussions in courts, they must not only be fairly conducted but also directed to some relevant purpose.  Contempt arising from a refusal by a witness to answer relevant and admissible questions is one of the most common forms of criminal contempt.  Its seriousness stems from the fact that it ‘strikes at the very way in which justice is done in the courts of this country’.[20]
  2. [38]
    However, this is a very different situation here.  There are a few reasons for this.  First, the appellant was at the Bar table as a party to the litigation.  He was not a sworn witness.  Second, the proceeding was a summary hearing for contravention of a domestic violence order.  The repeated direction by the magistrate for the appellant to tell him the name of the person who had driven him to court was not lawful in the sense that it did not touch on any issue in that hearing.  It was in no way relevant to whether he was guilty of contravening a domestic violence order and if so, what punishment should follow.  Third, the magistrate’s statement that the only reason the appellant would not have to answer the question is on the basis that the answer would tend to incriminate him, does not find support in the law.  To the contrary, I am not aware of a general power in a judicial officer to demand answers to questions from a person at the Bar table.  Fourth, the magistrate’s contention that the question was ‘relevant to any question of bail on any other charge at the end’ provided no lawful basis for repeatedly directing that his question be answered.  Even if it was relevant to the issue of bail, that was not the proceeding before the magistrate at the time.  The issue of bail had not even arisen. 
  3. [39]
    It follows that the refusal of the appellant to comply with the magistrate’s direction to answer his question had no tendency to interfere with or obstruct the administration of justice.  It was proper and based on rational grounds.  It did not constitute an offence under s 50(1)(e) of the Act and nor did it constitute any other contempt.  There was a clear error of law. 

Sentence

  1. [40]
    Given my findings above, it is unnecessary to determine whether the sentence imposed was manifestly excessive.  

Orders

  1. [41]
    The appeal is allowed.  The conviction is quashed.

Footnotes

[1] Lacey v Attorney-General of Queensland (2011) 242 CLR 573.

[2] Teelow v Commissioner of Police [2009] QCA 84 at [3]–[4].

[3] [2003] HCA 22.

[4] [2018] QCA 186.

[5] (2016) 90 ALJR 679, 686–687.

[6] 2 Qd R 7 at 16.

[7] R v Vasiliou [2012] VSC 216.

[8] Sections 50(6) and (7) of the Act.

[9] Section 2 of the Act.

[10] Keeley v Justice Brooking (1979) 143 CLR 162, 173.

[11] Clampett v Attorney-General of the Commonwealth of Australia 181 FCR 473.

[12] Keeley v Justice Brooking (1979) 143 CLR 162, 174.

[13] John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Allan v R (2013) 36 VR 565, 576.

[14] Lewis v Ogden (1984) 153 CLR 682 at 693.  

[15] Keeley v Mr Justice Brooking (1979) 143 CLR 162, 174.

[16] Clampett v Attorney-General of the Commonwealth of Australia 181 FCR 473 at 508.

[17] Coward v Stapleton (1953) 90 CLR 573.

[18] 181 FCR 473 at 482.

[19] (2007) 17 VR 100 at 129–130.

[20] Registrar of the Court of Appeal v Raad [1992] NSWCA 207.

Close

Editorial Notes

  • Published Case Name:

    YTL v The Attorney General for the State of Queensland

  • Shortened Case Name:

    YTL v The Attorney General for the State of Queensland

  • MNC:

    [2020] QDC 44

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    27 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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