McKay v Dedman[2015] QDC 55

DISTRICT COURT OF QUEENSLAND

(Delivered ex tempore and revised from transcript)

1. [1]
   In a busy summary court, the conduct of a hearing towards the conclusion of a lengthy session can be a hazardous time. The presiding judicial officer can be weary from the day’s events. The mind can be momentarily distracted by thoughts of a sustaining lunch and matters can suffer from a sense of repetition following a lengthy session of listening to the tales of like offending throughout the course of that day’s session. It is against that background that this appeal arises.

2. [2]
   On the 21st of October 2014 the appellant was convicted and fined $500 for an offence of common assault. The grounds of the appeal provide: (1) that the sentence imposed was manifestly excessive in that the learned Magistrate (a) failed to give adequate weight to the impact on employment of the defendant that a conviction would have, namely, employment as a security guard and security licence; (b) failure to give adequate weight to the impact on the defendant’s blue card for working and volunteering with children would have; (c) gave undue weight to the defendant’s prior criminal history by finding that he had a history of aggression.

3. [3]
   The appeal is conducted pursuant to s 222 of the Justices Act 1886 (Qld).  Relevantly s 222(1) provides that:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court Judge.” 

Subsection (2) continues to provide in clause 3: 

“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.” 

4. [4]
   Here the appellant entered a plea of guilty in the proceeding and therefore the only question on appeal is in relation to sentence. Relevantly s 223(1) deals or provides that:

“An appeal under s 222 is by way of rehearing on the [original] evidence given in the proceeding before the justices.”

5. [5]
   The appeal must be conducted on the material before the original Magistrate unless leave is given to adduce fresh evidence or fresh additional or substituted evidence and only if the Court is satisfied that there are special grounds to do so. The applicant in this case has made an application to adduce fresh evidence and I will address that application in due course. On an appeal under s 223(1), the Judge should afford respect to the decision of the Magistrate, review the evidence, weigh the conflicting evidence and draw his or her own conclusions. The principles governing when an appellant Court might interfere with a Magistrate’s decision are well settled by the established case law. In particular I note the observations in House v R (1936) 55 CLR 499, where the majority, Dixon, Evatt and McTiernan JJ observed that: 

“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 appellant court may exercise its own discretion in submission for his if it has the materials for doing so.”

6. [6]
   In this case, the appellant particularly notes in respect of this style of appeal that an appeal proceeding by way of rehearing, the powers of the appellate Court, in this instance this Court, are exercisable only when it can be demonstrated that there was some legal, factual or discretionary error in the order made; see Teelow v Commissioner of Police [2009] QCA 84 citing Allesch v Maunz (2000) 203 CLR 172 at 180-181, 181. 

7. [7]
   In this instance, the appellant was self-represented at the time of his appearance before the Magistrate and it appears that he belatedly informed the Magistrate as to the impact of the recording of a conviction and the effect it would have upon his ability to maintain his security provider’s licence and also a blue card which allows him to have contact with his children and the context of public occasions, particularly at his children’s school.

8. [8]
   It was submitted for the appellant that in the course of the proceeding before the learned Magistrate he did not have an opportunity to provide any information before her as to his personal circumstances, including the matters I’ve just noted. It was submitted in the circumstances there was a legal, factual and/or discretionary error in the order made and a miscarriage justice occurred in the exercise of the learned Magistrate’s sentencing discretion and as such this Court ought interfere and consider afresh the exercise of the sentencing discretion.

9. [9]
   The proceeding was short. At the outset the learned Magistrate inquired of the appellant about whether he had taken legal advice to which his response was in the negative. Once satisfied the appellant wished to proceed she did so. A voluntary plea of guilty was entered and the brief facts in support of the complaint were recited by the police Prosecutor. There was some discussion concerning the particulars alleged, but that discussion is not material to the appeal. Discussion also ensued concerning his prior history, a public nuisance offence which had occurred some seven years earlier, and then the following exchange occurred. At this point her Honour stated:

“All right.  Are you working?” 

The defendant stated: 

“Yes.  I manage a security company.” 

Her Honour stated: 

“I see, all right.” 

10. [10]
    Her Honour then proceeded to deliver judgment. As I have observed, the appellant appeared self-represented before the learned Magistrate. His reasons for doing so are explained in his affidavit, which he seeks leave to place before the Court today, however, I do not think his reasons are material.

11. [11]
    Self-represented parties present a particular challenge to courts. Frequently self-represented parties have no knowledge of Court process and, more importantly, what material may be relevant or irrelevant to the particular proceedings in respect of which they wish to participate. Courts must be careful in their dealings with them so as to ensure proceedings are conducted fairly and according to law. In MacPherson v R (1981) 147 CLR 512, it was noted that in fulfilling this duty it may require a Judge to give advice to the unrepresented litigant.  So far as the test is concerned, it was formulated as such that: 

“There is no limited category of matters regarding which a judge must advise an unrepresented accused—the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.”^[1]  

12. [12]
    Similarly in Kenny v Ritter (2009) 52 MVR 360, the Full Court of South Australia reviewed a body of authority addressing this issue.  The majority Grey and Layton JJ at 23 in their judgment, having reviewed the authorities, made this observation: 

“These authorities clearly demonstrate that when the self-represented litigant is before the Court, the Judge must ensure that a fair trial takes place.  In order to achieve this, the Judge is required to assist the self-represented litigant.  However, the Judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained.” 

13. [13]
    They then proceeded to identify the following significant principles which emerge from the authorities. Although his Honour Anderson J in a dissenting judgment came to a different view as to whether or not the trial Court had erred in its exercise of its responsibilities in that regard, his Honour agreed in principle with the principles identified by the majority, noting at [98]:

“It is important that the trial Judge should, in my view, adopt a role which ensures that the litigation is completed in an orderly way but protects the unrepresented party from any important omissions on key aspects of the case.” 

14. [14]
    A matter which I think is important in this instance. In an article entitled ‘Litigants in Person’^[2] by the now retired Hon Robert D Nicholson of the Federal Court, his Honour there reviewed the significant body of authority, at least to 2001, relevant to this issue.  In particular his Honour referred in passing to a number of cases, the first of which was Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 where his Honour observed Samuels JA noted at 27: 

“In my view, the advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as this is possible, a disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored, but the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.”

15. [15]
    It’s plain from the observations of Samuels JA that there is a limit and that limit was explored by his Honour Justice Nicholson later in the article when his Honour referred to authority of the New South Wales Court of Equity, or Equity Court in the decision of Studer v Konig (Unreported, NSW Supreme Court Equity Division, 4 June 1993).  In that case, McLellan CJ made this observation at 9: 

“But there are limits to how far the Court can properly go in providing such assistance and the limits are reached when to go any further would either (a) compromise the impartiality or the appearance of impartiality of the Court or (b) result in procedural or substantive injustice to the other party.” 

16. [16]
    It can be seen by reference to those authorities and by reference to MacPherson (supra) that these principles have broad application and are applicable also to criminal process.  Significantly, I note those cases relate to the conduct of trials.  In this instance there was no trial, simply the sentencing process following a plea. 

17. [17]
    Arguably in those circumstances there is less scope for concern relating to the outer limits of assistance addressed for instance in Studer v Konig, that is, the sentencing Court ought to be concerned that the self-represented party adequately informs that of those matters personal to the defendant which will inform the sentencing discretion.  Often such matters will not be known to the Prosecutor and accordingly to invite or prompt a defendant to provide such information would not in those circumstances enliven a concern that the Court was exceeding the limits of the Court’s duty to assist the unrepresented litigant. 

18. [18]
    Respectfully, in my view, in this instance the learned Magistrate erred in the discharge of this obligation. At this point I think it is important to note what occurred after her Honour had concluded receiving submissions. Her Honour at that point in her decision noted the appellant’s early plea of guilty, stated that she had taken into account the facts that had been agreed concerning the circumstances of the offending and then continued:

“In the circumstances, and noting that you have one entry in your criminal record of a similar type of offence, although not as serious as this offence, you will be convicted and fined a sum of $500.  That will be referred to the State Penalties and Enforcement Register so that you can repay the fine over time if you need to.  The conviction will be recorded.” 

I interpolate here that her Honour at this point dealt with the substance of the complaint.  She proceeded: 

“I am further satisfied that it is appropriate to impose a banning order for a period of time pursuant to section 43J of the Penalties and Sentences Act, being satisfied that you have been convicted of an offence which involved the use of, or attempted use of unlawful violence to a person in the vicinity of licensed premises and that you pose an unacceptable risk to the good order of licensed premises and the safety and welfare of persons attending licensed premises.  Accordingly, I’m going to prohibit you from entering the following licensed premises up to and including 28 February next year.  So basically you can’t go into any of the following places until March of next year.  They are the Central Lane Hotel, the Mie Place Nightclub, the Reef Hotel, the Port Curtis Yacht Club, the Grand Hotel and the Queens Hotel.” 

19. [19]
    It should be noted at this point that there had been no submissions made by the Prosecution concerning a banning order and beyond the very scant evidence concerning the particulars of the offence which indicated, among other things, that the offending occurred in the vicinity of the Reef Hotel, there was no other basis upon which her Honour could form a view that it was appropriate to make an order under s 43J Penalties and Sentences Act 1992.  At this point the defendant interrupted her Honour, asking: 

“Sorry, I do have a question.  I work at some of those venues so how does that go from here?  I predominantly work at the Grand and the Reef Hotel.” 

Her Honour responded, and I’ll simply deal with the transcript from this point: 

“I see, and this offence occurred at the Reef Hotel.” 

At this point discussion ensued about the manner in which the events giving rise to the offending occurred.  Her Honour acknowledged that and matters proceeded.  She called upon the police Prosecutor, who at that time observed that she had not considered the issuing of a banning order, stating: 

“BENCH:  I was going to pick up my Penalties and Sentences Act actually to see if there – I know there was something stated about people’s employment there.” 

20. [20]
    Her Honour continued:

“BENCH:  Yes, I’m – thank you.  Thank you, Mr [indistinct]  I’m minded in those circumstances, given what has been said to me by the defendant, to revoke the banning order, that is, to not make a banning order.

SGT HOSKINS:  Yes, I understand. 

DEFENDANT:  Excuse me, can I ask is there a chance I can get a higher fine and no conviction as I’ve got a blue card and a security licence and I – – –    

BENCH:  I’ve already made orders in relation to that. 

DEFENDANT:  You have?  Okay, no problem. 

BENCH:  Just have a seat there for a moment, Mr McKay.  A banning doesn’t stop – pursuant to section 43J, subsection (5) it doesn’t stop an offender from entering or remaining in a place of employment, but I must say in the circumstances of what has been described to me, Madam Prosecutor, unless you wish to be heard further, I’m minded not to formally make the banning order, taking into account all of those other matters that have been described to me by the defendant.” 

21. [21]
    I should note here that at this point it is not clear from the appellant’s answer whether he understood that what her Honour was saying was that she had in fact reviewed the conviction or whether she reviewed the conviction because of his request based upon his employment and had done so favourably or whether she was rejecting his application. Matters proceeded further then with Sergeant Hoskins stating:

“SGT HOSKINS:  If that is – if your Honour is – – –           

BENCH:  Unless you want to be heard further in relation to it?

SGT HOSKINS:  No, thank you.  I think that’s sufficient, your Honour.     

BENCH:  All right.  Yes, thank you, Mr McKay.  That concludes your matter. You are free to go. 

DEFENDANT:  No worries, thank you.

BENCH:  Thank you, thank you, Mr McKay.” 

22. [22]
    It can be seen by reason of those matters respectfully I am of the view that in this instance the learned Magistrate erred in the discharge of her obligation. When she inquired of the appellant about his occupation he told her he managed a security company. The potential for significance of a sentence involving a conviction should have aroused some curiosity as to the consequences of a conviction and in turn directed her to make further inquiry before proceeding to make a conviction order. Had she done so she would have been informed of the significant financial hardship that the appellant would suffer by reason of a conviction. The conviction certainly meant the loss of employment and a halving of his income from about $100,000 to $50,000 a year. The loss of income was acute, particularly for a married man with six children, one of whom is disabled.

23. [23]
    None of this information was put before the Court, but it ought to have been if for no other purpose but to inform the sentencing discretion relevant to the imposition of a fine pursuant to s 48 of the Penalties and Sentences Act 1992.  It is unfortunate that later in the sentencing process when these issues arose again in the context of exchanges concerning a banning order her Honour did not then request of the appellant more information on the point when he expressly raised the issue of perhaps paying a higher fine, but having no conviction recorded. 

24. [24]
    Respectfully, her Honour’s response that she had already made her orders ignored her powers under s 188 of the Penalties and Sentences Act 1992 to reopen the sentence in appropriate circumstances such as where, pursuant to s 188(1)(c), a sentence had been decided on a clear factual error of substance, in this instance the factual error plainly being an understanding that the sentence would not have any unreasonable adverse financial implications. 

25. [25]
    As stated earlier, I do not think that the appellant’s answer in the course of exchanges with the Bench was an acknowledgement and adoption of the Magistrate’s confirmation of the conviction because it arose in the course of exchanges about the banning order. No doubt if the matter of the intended conviction had been made clearer the appellant may have sought to explain its financial significance to her Honour. It is apparent from the record that the defendant did not lack the ability to make submissions to the Court when afforded an opportunity to do so.

26. [26]
    Respectfully, I consider the learned Magistrate’s failure in this instance to make such inquiries gave rise to error. That error in turn caused her sentencing discretion to miscarry in two respects. First, s 12 of the Penalties and Sentences Act 1992 requires the Court to consider whether or not to record a conviction.  In R v Holmes [2008] QCA 259 at [30], Fraser JA, when considering the issue of the exercise of discretion in relation to recording a conviction, made this observation: 

“...section 12(2) of the Penalties and Sentences Act requires reference to all the circumstances, expressly including the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment.  All these features must be considered with no bias in favour of any of them, although the particular circumstances might lead to one or other in fact having greater weight:  R v Brown; ex parte Attorney-General of Queensland [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General of Queensland [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467 at [40].” 

27. [27]
    Plainly the impact of ss 12(2)(c)(i) and 12(2)(c)(ii) Penalties and Sentences Act 1992 is of moment in this instance, and it could not have been assessed by her Honour without some material from the appellant concerning his personal circumstances.  As he did not offer any, he should have been requested to provide some, especially against a background where he had informed the Court that he was the manager of a security company.  If he had been represented that would have occurred in the ordinary course without issue. 

28. [28]
    Respectfully, I consider that the learned Magistrate could and ought properly have requested this information from the respondent. In my view her doing so would have fulfilled her duty to a self-represented litigant and had not exceeded the limits of her duty. It follows, in my view, that the decision to convict was infected by error and that sentence must be set aside.

29. [29]
    In any event, if I were wrong in respect of that conclusion the sentence was excessive. It is to be observed that the terms of s 222 Justices Act 1886 address sentences which are excessive as distinct from manifestly excessive.  A decision or a sentence which is manifestly excessive is itself wrong in law, however, excessive alone merely means unreasonable.  That invites a consideration of principles of reasonableness as expressed in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 and as discussed more recently by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 

30. [30]
    Here the appellant contends, relying upon additional evidence, that the sentence is unreasonable. Before considering that submission it is necessary to consider whether leave ought to be given to the appellant to read his affidavit filed in the proceeding on the 19th of December 2014. The appellant principally and relevantly deals with his antecedents in that affidavit, including in particular his financial circumstances and the financial impact of a conviction upon him.

31. [31]
    In Dafydd v The Commissioner of Police [2013] QDC 12, his Honour Jones DCJ of this Court considered circumstances in which leave ought be given to adduce fresh or additional evidence in terms of s 223(2) of the Justices Act 1886.  There commencing at paragraph 12 his Honour observed: 

“In Pavlovic v Commissioner of Police, the Court of Appeal was concerned with an appeal pursuant to s 222 of the Justices Act and with an application to adduce fresh evidence pursuant to s 223 of that Act. Citing with approval the decision of Gibbs CJ in Gallagher v The Queen, the Court of Appeal relevantly said:

‘In explaining why leave should not be granted, the learned District Court Judge cited the “three main considerations‟ described by Gibbs CJ in Gallagher v The Queen as being relevant to a determination of ‘whether a miscarriage of justice has occurred because evidence now available was not led at the trial’. It is clear that the reference in s 223(2) of the Justices Act to ‘special grounds’ indicates that there must be a good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is ‘by way of rehearing on the evidence given in the proceedings before the justices’. While Gallagher did not involve a consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of ‘special grounds’ which might be said to justify a grant of leave under s 223(2).

The first consideration described by Gibbs CJ is whether ‘the evidence relied on could with reasonable diligence have been produced by the accused at the trial’. This consideration reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.

…

The first consideration identified by Gibbs CJ falls against the applicant, but this consideration is not ‘a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.’ It is therefore necessary to address the second and third of the Gallagher considerations.

The second consideration identified in Gallagher is whether ‘the evidence is apparently credible (or at least capable of belief)’.

…

The third consideration identified by Gibbs CJ in Gallagher was whether the evidence, if believed, ‘might reasonably have lead’ a tribunal of fact ‘to return a different verdict.’’ [footnotes omitted]”

32. [32]
    In this instance, there is no issue concerning the second and third considerations. I think it is beyond debate that the evidence is apparently credible and that the evidence, if believed, might reasonably have led the tribunal of fact to return a different sentence. Consideration 1, however, requires consideration. That is whether the evidence relied on could, with reasonable diligence, have been produced at trial.

33. [33]
    In this case arguably the answer is yes, however, while it could have been produced by statement by the appellant in the course of the hearing, it is plain from the transcript that her Honour having formed a view on conviction did not permit the appellant an opportunity to place any further relevant material before her. As I’ve noted earlier, the transcript suggests that the appellant was possibly misled into believing that the issue relevant to this further material had been resolved in his favour and accordingly the need for the provision of such material was rendered otiose.

34. [34]
    It can’t be said that there was a failure to exercise reasonable diligence if: (a) the appellant didn’t know the material, although readily capable of provision, was relevant and thus didn’t provide it, or (b) in failing to exercise a duty to request such information it was not called for, or (c) the appellant, as in this case, was in essence told that a decision had been made such that the additional material was now otiose. The Court’s implicit or direct refusal to take such additional evidence gainsays any failure of reasonable diligence on the part of the appellant. Furthermore, this case is not one of the kind to which the rule is addressed, that is, to prevent an appellant using an initial hearing as some sort of dress rehearsal. In my view leave ought to be given to read the affidavit and I do so.

35. [35]
    Accepting the material both before her Honour and the additional material respectively, it is manifest that the decision to record a conviction as part of a sentence was unreasonable. The appellant had a record for one minor public nuisance offence some seven years earlier. It was not a like offence. He had no relevant criminal history. He was a mature man, married with six dependent children, one of whom was disabled. He was active in his family affairs and in particular his school community. A conviction meant he lost his blue card as well as his security licence, but importantly from that aspect he could no longer contribute in his school’s activities because of the loss of his blue card.

36. [36]
    Significantly because of the conviction he suffered a diminution of income by reason of his inability to continue in his employment as a security manager. His income fell from approximately $100,000 per annum to employment on a salary of about $50,000 per annum. By any measure, the sentence is excessive in the circumstances when regard is had to the financial impact of the conviction. In particular, having regard to the requirements of s 12(2)(c)(i) Penalties and Sentences Act 1992, it had a significant impact upon his economic and social wellbeing.  Such impact is entirely disproportionate to the offending in question and all the other relevant circumstances.  It follows, if for no other reason, that the orders made below ought be set aside. 

37. [37]
    It is appropriate in the circumstances that I dispose of this matter rather than remit it for rehearing. In considering all the relevant facts which I’ve addressed earlier in the course of these reasons, a sentence of a fine of $500 is appropriate in all the circumstances and such a fine ought be imposed without recording a conviction.

38. [38]
    It follows I’ll make the following orders:

1. I’ll grant the appellant leave to read the affidavit filed 19 December 2014;
2. I allow the appeal
3. I set aside the order of 21 October 2014 in the Gladstone Magistrates Court convicting and finding him $500 in respect of the offence of assault; and
4. I sentence the appellant to a fine of $500 and no conviction is recorded.
5. The appellant has applied for costs. The appellant has been successful in the appeal. There is no reason why that he should not have costs as they follow the event. In the circumstances I will direct that the respondent pay the appellant’s costs. Such costs to be fixed in accordance with schedule 2, or as agreed between the parties, or in default of agreement to be fixed in accordance with schedule 2 of the Justices Act 1886.