Whittaker v Ward[2005] QDC 97

APPELLATE JURISDICTION

JUDGE DODDS

and

CAIRNS

DATE 12/04/2005

JUDGMENT

HIS HONOUR: This is an appeal against orders made in the Magistrates Court at Cairns on the 7th of December 2004. On that day the appellant was convicted of three offences committed on the 28th of August 2003 arising out of his driving of a motor vehicle in Cairns on that date.

The offences were:

On the 7th of December 2004, the appellant did not appear, despite being present at the Court on the 26th of August 2004 when the matters were adjourned to the 7th of December 2004 for hearing. In those circumstances, after having the appellant's name called and waiting for some time, the Magistrate proceeded according to the provisions of section 142A of the Justices Act 1886.

The Magistrate convicted the appellant of the charges. He recorded no convictions. He imposed one fine of $500 for the offence of driving an unregistered motor vehicle and driving a motor vehicle fitted with cancelled registration plates. He fined the appellant $400 for the offence of driving an uninsured motor vehicle. He allowed three months to pay the fines. He ordered the appellant pay $65.20 costs of Court and professional costs of $622.

On the 4th of January 2005, the appellant filed notices of appeal. One notice of appeal was against the order that, “no conviction was recorded.” “That you pay the following: fined $500.”

Another was in the same terms except it was for the $400 fine. Each of those notices had as a ground of appeal that the Court had no jurisdiction to hear the matter.

Another notice of appeal was against the order that, “no conviction be recorded”, and “that you pay the following: costs of Court $65.20.”

Another was in the same terms except that it was for, “professional costs $622.” Each of these notices had as ground that “the order to pay costs was an unreasonable exercise of discretion.”

The notices of appeal do not in terms state that the appeal is against the convictions. On their face, the appeals purport to be against the orders made consequent upon the convictions. The notices of appeal against the fines however, set out as a ground of appeal that the Court had no jurisdiction to hear the matter, which I take to be the matter for which the fine order was imposed. So far as those notices are concerned, I will proceed as if the notice initiated an appeal against the conviction for the offence for which the fine was imposed.

On the 28th of February 2005, the appellant filed his summary of argument. I have read it. It is replete with references to the “Gestapo” (apparently the police officers) and “dishonest Magistrates”, who I gather were Magistrates who had earlier adjourned the complaints.

Regarding the proceeding on the 7th of December 2004 which was before the Chief Magistrate, there is an assertion the “Court had no jurisdiction to proceed”, and “the orders - - are therefore invalid because there is no valid exercise of power without authority.”

In his oral submissions before me today, Mr Whittaker, the appellant essentially had two complaints. The first was that the complaint or rather summons, was invalidly issued because the person who made the complaint was not a person who had personal knowledge of the events about which the complaint spoke.

The second complaint of Mr Whittaker was that on the return date of the summons, he appeared and he wished to proceed on that day. He did not consent to the matter being adjourned. Nonetheless, the Magistrate adjourned the matter to the 26th of August 2003, and noted on the bench charge sheet that the adjournment was by consent. Mr Whittaker asserts it was not by consent and that the Magistrate was obliged to proceed to hear the matter on that day. On the 26th of August he says he appeared simply to challenge the jurisdiction because the matter should have been heard on the return date of the summons.

On that latter date, the Magistrate ultimately refused to proceed and adjourned the matter for hearing to the 7th of December. The proceedings on the 26th of August are recorded in an official transcript. Mr Whittaker does not accept the accuracy of the official transcript. Nonetheless, I intend to proceed upon it.

It reveals that Mr Whittaker wished to himself record proceedings on the 26th of August. When he refused to desist, the Magistrate refused to continue with the matter and adjourned it to December. There is also an issue on that occasion about Mr Whittaker complaining police officers had damaged his car.

The issue about the complaint which Mr Whittaker raises today was the subject of a decision by the Court of Appeal in Whittaker v Turner [2004] QCA 191. It is necessary only to adopt what the Court of Appeal said in the judgment of the President. There is nothing in this complaint by Mr Whittaker. As to the refusal of the Magistrate to hear the matter on the return date of the summons, it was within his power to do that and adjourn the matter to a date for hearing. This is commonly done to manage the Courts' list. I can readily understand the refusal of the Magistrate to refuse to proceed with the matter on the 26th of August in the face of Mr Whittaker's refusal to turn his tape-recorder off despite repeated requests by the Magistrate. There is nothing in the ground or argument of Mr Whittaker that the Magistrate's adjournment of the complaints denies jurisdiction to the Court which heard the matter on the 7th of December 2004.

I have read the official transcripts of proceedings on the 26th of August 2004 when the matters were adjourned to the 7th of December 2004, and on the 7th of December 2004 before the Chief Magistrate. I have referred to the bench complaint sheet on which are recorded proceedings on the complaints. I have read the transcript of the Chief Magistrate's reasons for convicting, fining and making costs orders against the appellant. The Chief Magistrate's reasoning is thoroughly set out. I can detect no error in proceedings throughout the life of these complaints. I can detect no error in proceedings before the Chief Magistrate on the 7th of December 2004. No lack of jurisdiction is shown. The Chief Magistrate is not shown to have exercised his discretion wrongly or unreasonably.

The appeals are dismissed. The orders convicting the appellant, for the fine and orders for costs are confirmed. The appellant is ordered to pay the respondent's costs of the appeal fixed in the sum of $775.82.

Now, Mr Whittaker, I charged you with contempt of Court earlier. Do you wish to retain legal advice before I deal with you for that? Do you wish to consider your position?

APPELLANT: Your Honour, in your reasons there you've misrepresented the “throughout”. I think that was disgraceful.

HIS HONOUR: Do you intend to respond to what I just said to you?

APPELLANT: It can't be contempt by definition-----

HIS HONOUR: Very well.

APPELLANT: -----and you can't hear the matter.

HIS HONOUR: You'll be fined $300, in default imprisonment for 14 days. How long do you want to pay that?

APPELLANT: I won't be paying it, your Honour, because I'll be appealing. You can't hear it.

HIS HONOUR: You will be allowed seven days to pay the fine. Adjourn the Court.

APPELLANT: Can't be a Judge in your own cause. Hope you call the police. I'm sorry-----

HIS HONOUR: Mr Whittaker's tape-recorder is to be returned to him as he leaves the court room.

THE COURT ADJOURNED AT 3.05 P.M.

APPELLANT: Hope you didn't turn it off.