Pogadaev v Stewart[2016] QDC 316

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 19 October 2012, after a trial before a magistrate, the appellant was found guilty of 12 counts of stealing bicycles, one of possession of tainted property and one of fraud. On 14 November 2012 he was sentenced on each count to a wholly suspended four month term of imprisonment with an operational period of 15 months.

2. [2]
   A notice of appeal was subsequently filed. It identified various grounds alleging error by the learned magistrate. The notice of appeal indicated the appellant was then acting in person.

3. [3]
   Subsequently the appellant, still acting in person, filed an outline of submissions on 26 February 2013. The respondent’s outline of submissions were filed on 27 March 2013.

4. [4]
   On 14 November 2013 further written submissions on behalf of the appellant were filed. They were prepared by Mr Heaton QC who was then instructed by solicitors. The appellant sought leave to abandon the grounds set out in the original notice of appeal and sought to substitute the following grounds:

1. The learned Magistrate failed to follow the procedure set out in s 145(1) of the Justices Act 1886 (Qld) in that the substance of the charges were never read to the appellant, nor was he asked how he wished to plead to the charges. This is an incurable irregularity in the process of determining the guilt of the appellant and the conviction should be quashed and the sentence set aside.

2. The learned Magistrate failed to comply with the procedure set out in Regulation 14 of the Justices Regulation 2004 (Qld) in that he failed to endorse the Bench Charge Sheets with the required information, that is, the plea by the appellant (r 14(2)) and the decision of the court (r 14(3)).

5. [5]
   The respondent on 29 November 2013 filed a written outline of submissions in response.

6. [6]
   The matter came before another judge of the District Court on 2 December 2013. Her Honour, on that day, made the following orders:

7. [7]
   The matter came before the Court of Appeal on 3 March 2015. The court ordered that an oral application for declaratory relief be refused and dismissed the appeals in the cases as stated so that the appeals could be determined in the District Court. Short reasons were given by McMurdo P, with whom Morrison JA and Peter Lyons J agreed. The President, having briefly outlined the manner in which the matter came before the court, said that there was a proper process for the determination of appeals under the Justices Act 1886 (Qld) which had not been completed, namely determination of the matter by the District Court.   She then said:

Further they wish this court to overturn a longstanding decision of the Full Court of the Supreme Court of Queensland, Todhunter v Zacka; ex parte Zacka [1965] Qd R 515.  If they are successful, there are likely to be very wide repercussions throughout the state, in potentially tens of thousands of cases determined by the Magistrates Court.

8. [8]
   The appeal therefore falls to be determined in the District Court.

Trial Procedure  

9. [9]
   In his written submissions, Mr Heaton QC outlined the circumstances which unfolded on the first morning of the trial in the Magistrates Court. Initially, the appellant and his brother had been charged with a significantly greater number of offences than the offences which ultimately fell for determination, and of which the appellant was convicted. The prosecution however offered no evidence in relation to some of the charges. There was, Mr Heaton QC submitted, then a discussion by reference to the charge numbers in what was described as two bundles of charges. He submitted that the matter was not uncomplicated because of the number of charges and because the charge numbers relating to the charges were different as against the appellant and his brother, because of an additional fraud charge against the appellant. As a consequence, counsel for the appellant at the trial asked:

10. [10]
    The proceedings then continued resulting in the following exchange;

SGT HEASLEY: Your Honour, do you require the defendants to enter a plea?  That’s all the housekeeping matters.

BENCH:  All right.  A plea of not guilty is maintained? 

MR SEGAL (Counsel for Alexei Pogadaev):  That’s correct.

MR SAGGERS (Solicitor for Serguei Pogadaev):  And for my client as well, your Honour. 

11. [11]
    It also appears that despite finding the appellant guilty of the charges to which I have referred the learned Magistrate did not endorse the Bench Charge Sheets with the appellant’s plea or with the decision of the court. He seems to have just omitted doing so. There is however no doubt about the Court’s decision which was set out in considered reasons.

Consideration of Grounds of Appeal

12. [12]
    Section 145(1) of the Justices Act 1886 (Qld) provides:

When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

13. [13]
    It is clear from the passage earlier set out that the substance of the complaint was not set out as required.

14. [14]
    Mr Heaton QC, in his written outline submitted that because of the number of charges, there being two accused with some different charges and the process of amending and discontinuing some charges, that this was a case “where there was a risk of confusion and uncertainty as to the precise allegations in the charges made against the respective accused which warranted particular care in clarifying the precise allegations before proceeding further” (My underlining). 

15. [15]
    It is in my view important to understand that nowhere did Mr Heaton QC submit that there was any actual confusion or uncertainty. Before me the appellant did not submit there was. He merely adopted Mr Heaton QC’s submissions. Mr Heaton QC referred, instead, only to the risk of confusion and uncertainty. That, in my mind, is a critical feature of the case. If there had been actual uncertainty or confusion and the appellant had entered pleas of not guilty to incorrect charges, this would clearly have been identified by his counsel when he undertook the exercise of checking at lunch, as he had been invited to do by the learned Magistrate.

16. [16]
    In Todhunter v Zacka ex parte Zacka (supra) the Magistrate had, as in this case, not complied with the requirements of s 145 of the Justices Act 1886 (Qld).  It is in my view unnecessary to account the factual circumstances of the case.  Hanger J, with whom Sheehy ACJ agreed, said at p 518:

I think the question arising in cases such as this is clearly stated in Munday v Gill (1930) 44 CLR 38 at pp 80–81 in the joint judgment of Gavin, Duffy and Starke JJ:

No definite principle can be extracted from these cases.  In some instances, the irregularity is so serious that consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere.  Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties of the hearing.  The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances. 

17. [17]
    Douglas J, with whom Sheehy ACJ also agreed, in relation to the Magistrate’s error in not complying with the provisions of the Justices Act 1886 (Qld), referred at p 521 to the decision of Lord Coleridge CJ in Dixon v Wells (1890) 25 QBD 249 where at pp 255/6 thereof his Lordship had said:

…there was no protest made by the person who appeared, and the Courts said…that faults of procedure may generally be waived by the person affected by them.  There are mere irregularities, and if one who may insist on them waives them, submits to the judge and takes his trial, it is afterwards too late for him to question the jurisdiction which he might have questioned at the time. 

18. [18]
    Douglas J continued at p 522 as follows:

This last statement has to be qualified in that it has been held that there can be irregularities which take away jurisdiction even though there has been a waiver.

19. [19]
    In this case, the accused and his co-accused were both represented by counsel and solicitor respectively who both clearly indicated their clients’ desire to plead not guilty. They did not suggest any uncertainty as to the charges. Evidence was called over three days. The appellant makes no assertion of any confusion or uncertainty about the offences that he faced. Indeed, in his original notice of appeal and outline of submissions prepared by the appellant himself, he clearly enunciated the charges and does not refer to any difficulty he had in understanding what they were. His submissions indicate a detailed forensic knowledge of the proceedings.

20. [20]
    In such circumstances I conclude that this is very obviously not a case where the non-compliance with the provisions of s 145 of the Justices Act 1886 (Qld) could be said to be an irregularity so serious that consent of the accused did not cure it.  His express statement, through his counsel, that he wished to plead not guilty, then his continuance of the trial on that basis thereafter, including his electing not to give or call evidence after he had dismissed his legal advisors was a clear manifestation of that consent. 

21. [21]
    That the appellant consented to the irregularity is in my view, clear. He has, even now, not asserted any confusion about the charges he faced. He was represented at the time of the irregularity. There was, in such circumstances, no miscarriage of justice.

22. [22]
    The second ground of appeal relates to the failure of the learned Magistrate to have endorsed the bench charge sheets as required by r 14 of the Justices Regulation 2004 (Qld). The regulation provided:

What court must record, or ensure is recorded, on bench charge sheet

1. (1)
   This section applies for a proceeding under the Act before a court in relation to a charge stated in a bench charge sheet.
2. (2)
   If the charge is amended, other than under section 42(1A) of the Act, the court must ensure that particulars of the amendment are recorded on the bench charge sheet.
3. (3)
   If the court accepts the defendant’s plea, or enters a plea for the defendant, to the charge, the court must record the plea on the bench charge sheet.
4. (4)
   The court must ensure the decision on the charge is recorded on the bench charge sheet.
5. (5)
   The court may make, or allow to be made, any entry on the bench charge sheet the court considers appropriate.

23. [23]
    It seems the Magistrate did not endorse on that document the appellant’s plea or the decision of the court.

24. [24]
    Accepting for the moment that is so, I nevertheless am of the view that failure to comply with such procedural requirement has not brought about any miscarriage of justice and does not amount to appealable error. That is, of course not to say that non-compliance with r 14 of the Justices Regulations 2004 (Qld) or, indeed s 145 of Justices Act 1886 (Qld), should not be met.  Procedural issues can be important and judicial officers should endeavour to comply with them but in the absence of any suggestion of injustice, in my view, the point has no merit.

25. [25]
    The appellant’s written submissions, prepared by Mr Heaton QC, refer to a number of cases dealing with issues of non-compliance – R v Ross [1980] Qd R 24; Brown v Queensland Police Service [2011] QDC 301; McKinlay v Commissioner of Police [2011] QCA 356; Rochow v R [1983] 1 Qd R 184.

26. [26]
    In McKinlay v Commissioner of Police (supra) the Court of Appeal refused the appellant’s application for an extension of time in which to appeal.  Wilson AJA referred to a number of New South Wales cases involving non-compliance with statutory requirements for the taking of a plea in summary matters.  Those cases appear to endorse a stricter view of issues of compliance than the Full Court adopted in Todhunter v Zacka ex parte Zacka (supra).  Her Honour said at [32] of the judgment:

It is arguable that a plea entered against a defendant who is present at the hearing will not be valid unless “the substance of the complaint” is stated to him at the hearing and he personally responds to the question how he pleads.

27. [27]
    Because the application was for an extension of time in which to appeal, and was dismissed, her Honour did not express “considered views” on that matter. I note also it does not appear she was specifically referred to Todhunter v Zacka ex parte Zacka (supra) or to the decision of the Full Court in Munday v Gill (supra) which both Hanger J and Douglas J had referred to.  Nor was she referred to the subsequent cases, such as Hyde v Mason [2008] QCA 72 and Daly v Barlow [1969] Qd R 237 on which the respondent relies in its written submissions.

28. [28]
    In R v Ross (supra) the Full Court distinguished both Munday’s case and Todhunter’s case in holding, in the circumstances of that matter, that the failure to comply with conditions precedent to the exercise of jurisdiction of a court was fatal to the jurisdiction and could not be treated as a mere procedural irregularity resulting in no substantial miscarriage of justice. 

29. [29]
    The case concerned a trial in the Magistrates Court and consequent conviction of a child charged with aggravated assault. The ground of appeal was that the Magistrate had not first satisfied himself that the child’s entitlement to a jury trial had been explained to him and that he had consented to the Magistrate, constituting the Children’s Court, hearing the matter. The error arose because, whilst an adult would not have had a right to be charged on indictment, s 26 of the Children Services Act 1965 (Qld) altered that in relation to a child. 

30. [30]
    Campbell J, with whom Wanstall CJ and Matthews J agreed, said at pp 27-28:

The failure to comply with the provisions of s.29(2) cannot be treated as a breach of mere procedure constituting an irregularity resulting in no substantial miscarriage of justice or not attended by any serious consequences to the appellant.  The Legislature, in that subsection, has made certain requirements conditions precedent to the exercise of jurisdiction by a Children’s Court, and failure to comply with them is fatal to jurisdiction: Stefani v John [1948] 1 KB 158.  Such decisions as Munday v Gill (1930) 44 CLR 38 and Todhunter v Zacka [1965] Qd R 515 have no application to the present circumstances.

It can be seen that the jurisdictional question that there arose does not arise in the matter before me. 

31. [31]
    Similar considerations apply in relation to the case of R v Rochow (supra).  Section 443 of the Criminal Code Act 1899 (Qld) conferred on magistrates a power to deal summarily with certain indictable offences to which a defendant had pleaded guilty and if the magistrate concluded the defendant could be adequately punished upon summary conviction.  Section 444, however, required a magistrate to first explain to the defendant his entitlement to trial by jury and of the fact he was not required to make any defence before the magistrate.  The magistrate was also required to ask whether the defendant objected to the charge being dealt with summarily.

32. [32]
    The Full Court in that case held that the provisions of s 444 must be strictly complied with and that a failure to do so was not a mere irregularity. Compliance with the section was seen, as in Ross’s case, as a jurisdictional prerequisite to summary determination of an indictable offence. 

33. [33]
    It is in that circumstance different in form to a case of non-compliance with a procedural requirement such as r 14, as is the case before me, which does not in itself involve questions of jurisdiction. In R v Rochow (supra), McPherson J at p 187 had said:

By contrast, there is a consistent line of authority both in England and Victoria holding that failure to comply with provisions in the form of ss. 443 and 444 is not to be regarded as a mere irregularity capable of being waived. Although procedural in form, s. 444 is to be considered as in the nature of a safeguard protecting the right to trial by jury which, other than perhaps in exceptional circumstances, must be complied with.  It is true that the applicant here may have known of his right of election, and, on the evidence, it was explained to him by his solicitor.  Naturally enough, the magistrate accepted the solicitor’s assurance to that effect.  But I think we should follow what was said by R.S. Wright J in R v Cockshott [1898] 1 QB 582 in holding that it was immaterial whether or not the applicant knew of his right to elect.  He was entitled to be informed of it by the court. 

34. [34]
    Mr Heaton QC’s written submissions on this point relied also on the decision of Judge Durward SC in Brown v Queensland Police Service (supra). He referred to his Honour’s finding that;

The Justice Regulation 2004 was not complied with because the Bench Charge Sheets were not each notated with the required information. It may be convenient to use the Bench Charge Sheets but that does not appear to me to be the purpose of that document and the regulation is specific as to what is required …

35. [35]
    The Regulation his Honour was referring to there was in Part IV of the Justices Regulation 2004 (Qld) which of course, include r 14 on which Mr Heaton QC relied.

36. [36]
    Materially, his Honour concluded at [33]:

Where indictable offences are to be heard and determined summarily, each offence must be read to the defendant and a separate plea taken to each offence, after it is read to the defendant. A failure to follow that procedure is in my view, an incurable irregularity that will result in a conviction on a plea of guilty being quashed on appeal and the sentence imposed being set aside.

37. [37]
    That conclusion however must be seen against the factual circumstances of the case, specifically that the appellant was charged with an offence under s 339(1) of the Criminal Code and was self-represented before the Magistrate with the consequence that s 552I of the Criminal Code applied. As I have said in R v Rochow (supra) the Court of Criminal Appeal had determined that the provision of the Criminal Code reflected in the provision of s 522I Criminal Code that his Honour was concerned with, was an irregularity not capable of waiver.

38. [38]
    All of those cases involved consideration of matters going to the jurisdiction of the court. Here, the jurisdiction of the court to determine the matter was not in dispute. What was in dispute was whether or not a failure to comply with procedural requirements, where there was not any demonstrable or asserted prejudice, would entitle a party to succeed in having the conviction set aside.

39. [39]
    In my view, I am bound by the decision of the Court of Appeal in Todhunter v Zacka ex parte Zacka (supra) and by the decision of the High Court in Mundy v Gill (supra) to which I have referred.

40. [40]
    In the circumstances I have outlined, it is therefore appropriate that the appeal be dismissed.