Hainaut v Queensland Police Service
[2017] QDC 208
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- Unreported Judgment
- Hainaut v Queensland Police Service[2017] QDC 208
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Hainaut v Queensland Police Service[2017] QDC 208
Hainaut v Queensland Police Service[2017] QDC 208
DISTRICT COURT OF QUEENSLAND
CITATION: | Hainaut v Queensland Police Service [2017] QDC 208 |
PARTIES: | JEAN BAPTISTE DOMINIQ HAINAUT (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | APPEAL NO: 215/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Mareeba |
DELIVERED ON: | 4 August 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 9 May 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – procedural fairness - opportunity to be heard - appeal pursuant to s 222 Justices Act 1886 - conviction - disobeying speed limit – hearing proceeded ex parte in absence of defendant/appellant pursuant to s 114A of the Act – where application warranted to re-open proceedings for want of effective service of complaint and summons – defendant appeared on application but refused to acknowledge the conventional use of his name – defendant sought compensation to “surrender” his surname - where acting magistrate dismissed application for want of appearance by appellant (despite his physical appearance). Legislation Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), reg 20 Justices Act 1886 (Qld), ss 142A(12) & (12A), 222, s 223(1) & 227 Practice Direction number 8 of 2006 of the Magistrate Court of Queensland Cases Allesch v Maunz (2000) 203 CLR 172 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police[2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Kioa v West (1985) 159 CLR 550 Neil v Nott(1994) 121 ALR 148 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456 Teelow v Commissioner of Police [2009] QCA 84 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | Self-represented Appellant A Dunkerton for the Respondent |
SOLICITORS: | The Office of Director of Public Prosecutions for the Respondent |
- [1]On 14 November 2016, the appellant was convicted and fined $300 after an application for rehearing in the Magistrates Court held in Mareeba, of disobeying the speed limit under reg 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).
- [2]The appellant now appeals his conviction.
- [3]Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
Mode of Appeal
- [4]The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) (“Act”). Section 222(1) relevantly provides:
“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.”
- [5]Pursuant to s 223 of the Act appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
“(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)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)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- [6]For an appeal by way of rehearing,“the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” [1]
- [7]But the court does not merely consider whether or not the magistrate has made an error of fact or law. The rehearing requires this court to conduct a real review of the evidence before it, and make up its own mind about the case.[2]
- [8]Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]
Background
- [9]The appellant was charged that on the 18 June 2016, the appellant was driving in excess of the speed limit of 60 kilometres per hour on Myola Road at Kuranda. The charge was contested and the appellant was given a Notice to Appeal in the Magistrates Court at Mareeba on the 19 September 2016 to answer to the charge.
- [10]On 15 September 2016, the appellant applied by post to adjourn the hearing to a later date on the grounds that he was unable to attend Court on 19 September 2016 because he was just discharged from hospital and was required to attend a doctor’s appointment on that date. He requested that the matter be adjourned to 26 September or a later date to allow him to attend.
- [11]On 20 September 2016, the registrar posted to the appellant a “Notice to Person Permitted to Go at Large Without Bail”, which permitted him to go at large without bail on the condition that he would appear and surrender into the custody of the Magistrates Court at Mareeba on 26 September 2016 at 8:30 am. The form does not indicate the nature of the hearing on that date.
- [12]The appellant did not appear on 26 September 2016, and the acting magistrate proceeded to deal with the matter in the appellant’s absence pursuant to s 142A of the Act. The appellant was convicted and fined $300.
- [13]On following day, 27 September 2016, the appellant applied to reopen the matter on the grounds that:
“On the 15th Sept, I applied for an adjournment for my court hearing due on the 19th as I had a doctor appointment that day. I did not know that I had to specify that I was going to plead not guilty as it seemed obvious and logical. Also I was not notified as to the new hearing date (26th Sept). So, I would appreciate if you could reopen this case, so that I have my say in Court. Thank you for your understanding.”
- [14]That application was apparently filed in the Cairns Supreme and District Court Registry on 27 September 2016, and was not received by the Mareeba Magistrates Court Registry until 11 October 2016. Fearing the application was lost, the appellant filed a second application to reopen in the Cairns Registry on the 18 October 2016, which was also transferred to Mareeba on 21 October 2016. The grounds of the application were that:
“I was first scheduled to appear on the 19th Sept, but gad a doctor appointment that day. I applied for an adjournment but I got the letter on the day on the next hearing (26th Sept). So I applied for a reopening, but I have been told that the letter was never received (sent on 27th Sept). So I would really appreciate if I could have the case reopen so that I can have my say in court. Thank you for your understanding. Regards. P.S. I did not expect the new hearing date to be on one week later. Please let me know the next hearing date as soon as possible at the new postal address.”
- [15]The application for the rehearing was set to proceed on 14 November 2016 in the Magistrates Court at Mareeba.
- [16]The appellant appeared on 14 November 2016 on the application. The following exchanges occurred between the prosecutor, appellant (defendant) and the acting Magistrate:
SGT K. HUGHES: Perhaps I should mention the matter of Hainaut ‑‑‑
BENCH: Sorry?
SGT HUGHES: H-a-i-n-a-u-t. It’s a rehearing.
BENCH: Application for rehearing?
SGT HUGHES: Yes.
BENCH: Just take a seat for the moment. So you’re Jean-Baptiste Dominque Hainaut, is that right?
APPELLANT: No.
BENCH: What is your name, sir?
APPELLANT: My name is Jean-Baptiste Dominque.
BENCH: What’s your last name?
APPELLANT: Irrelevant.
BENCH: Well, it is relevant.
APPELLANT: If you want me to surrender my last name ‑‑‑
BENCH: The person that I require ‑‑‑
APPELLANT: ‑‑‑ I want compensation of $5,000,000.
BENCH: Just listen to me for a moment.
APPELLANT: Okay.
BENCH: The person I require to appear before me is Jean-Baptiste Dominique H-a-i-n-a-u-t. Is that you?
APPELLANT: Could you repeat that, please?
BENCH: The last name is spelt H-a-i-n-a-u-t. Is that your last name?
APPELLANT: That’s irrelevant to the charge.
BENCH: All right. Well, then, I’ll have to adjourn this matter. Let’s have a look-see. You have a failure to appear by the defendant, so I’ll issue a warrant for his arrest.
SGT HUGHES: It’s not our application, your Honour.
BENCH: Beg your pardon?
SGT HUGHES: It’s not our application. So that’s fine.
BENCH: Well, then, that’s the – well, actually, that’s the other way I can proceed. I’ll strike out the application and the original order of the 26th of September will remain in place. That’ll be the way to proceed. If you fail to appear – the person Jean-Baptiste Dominique Hainaut – if he fails to appear, the application will be dismissed. Is that what you want to have happen?
APPELLANT: Well, I haven’t had time to prepare this case. So I don’t have any ‑‑‑
BENCH: Well, at the moment, I’m just determining whether or not I’ve got the person in front of me that I need to appear in this matter. So are you – I’ll ask you one last time.
APPELLANT: If you want me to appear, I’ll be appearing [indistinct] ‑‑‑
BENCH: Are you Jean-Baptiste Dominique Hainaut?
APPELLANT: I am not the person Jean-Baptiste …..
BENCH: All right. Well, then, you’re excused, sir, because I don’t know who you are. The application is dismissed. No appearance for the defendant. Can you just formally call the name. Thank you. You’re now appearing on that name, are you?
APPELLANT: No, I’m not. [indistinct]
BENCH: All right. I just had my Clerk formally call the name Jean-Baptiste Dominque Hainaut. Are you appearing?
APPELLANT: Oh, sorry. No, I’m [indistinct] ‑‑‑
BENCH: That’s all right. Okay. Thank you.
APPELLANT: Thank you.
- [17]During that exchange, and having called the name of the appellant, the magistrate dismissed the application in default of appearance of the appellant, and endorsed the file accordingly. In the result the original order on 26 September 2016 was restored.
Ground of Appeal
- [18]The appellant appeals against the order on the sole ground that “the magistrate did not allow me to answer the charge. I was willing to, that’s why I was in Court that day.”
- [19]As I apprehend this ground and the appellant’s arguments, the determinative issue in the appeal is whether the magistrate erred by not affording the appellant a reasonable opportunity to be heard.
Opportunity to be heard
- [20]The common law recognisesa fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[4]A reasonable opportunity to be heard “requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.”[5]
- [21]
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”
- [22]It is often difficult for judicial officers to ensure the integrity of proceedings, which involve a litigant appearing in person. The High Court inNeil v Nott[7]said:
“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.
- [23]This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction.
- [24]One such procedural matter is the requirement for parties to announce their appearance at the start of every hearing to facilitate accurate transcription purposes.The procedure is common to all courts and prescribed by practice direction.[8]For the Magistrates Court of Queensland, Practice Direction number 8 of 2006, prescribes that: “anyone appearing in a proceeding including a person who appears without legal representation will at the outset clearly state:
(a)his or her surname and initials (spelling the surname, save where the spelling is obvious);
(b)the capacity, including the professional capacity, if any, in which he or she appears;
(c)the party or parties whom he or she represents, if that be the case;
(d)the name of the instructing solicitor, or the solicitor with whom, the person is connected (including the name of any legal firm) as the case may be;
(e)the name of any solicitor (including the name of any legal firm) for whom the legal representative is acting as town agent; and
(f)when the legal representative is a barrister and paragraph (d) does not apply, whether he or she has accepted a direct access brief.”[9]
- [25]This established practice would have sufficiently identified the appellant, that he was the defendant/applicant and appeared unrepresetned. Unforturnately, the practice direction was not followed in the heairng below by either of the parties, and the magistrate.
- [26]Notwithstanding that non-compliance, it seems to me that the effect of the exchange between the appellant and the magistrate was enough to properly identify the appellant as the proper defendant/applicant. So much was also tolerably clear from the appellant’s application form, which signed by the “applicant” and included his hand written details in the boxes as follows:
“3.What is your name or family name?
HAINAUT.
4What is you first or given name(s)?
Jean-Baptist D.. ….
- What is you relationship to the matter (e.g. Defendant, Solicitor, Company Director, Prosecutor)?
Defendant . ….”
- [27]Approaching the matter this way would have identified the appellant as the defendant/applicant in the proceeding. It would have avoidedthe charade of calling the appellant’s full name and then proceeding as if he was absent, despite his physical presence at the bar table, in response to the matter being called, the acting magistrate seemed to interrupt the appellant’s attempts to explain the unconventional usage of his name, that he was the applicant. As to the appellant’s assertion that: “If you want me to surrender my last name … I want compensation of $5,000,000,” it is nonsense, foreign to Australian law and verging on the bizarre.
- [28]The acting magistrate, in my respectful view, incorrectly concluded that the appellant failed to appear. In doing so, His Honour erred by proceeding without affording an opportunity for the appellant to be heard on the application.
Application to Reopen
- [29]Section 142A(12) of the Actprovides for an application to be made by the defendant for a re-hearing in accordance with s 142A(12A), as follows:
“(12) Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit.
(12A)When a rehearing is granted—
- (a)the conviction or order made in the first instance shall, subject to subsection (12B), forthwith cease to have effect; and
- (b)the court may proceed with the rehearing forthwith or may set down the rehearing for a later date; and
- (c)on such rehearing, the court shall have and may exercise all the powers and procedures that it has in the case of an original hearing.”
- [30]It seems to me that the proceedings of 26 September 2016 were fundamentally flawed in that no effective notice was given to the appellant about the date, time and place of hearing. It constituted a clear breach of procedural fairness. On that basis alone, the determination of that date ought be set aside.
- [31]It must follow that the appeal and the application to re-open ought be allowed in the unusual circumstances of this case. The matter should be returned to the Magistrates Court for rehearing and determination after reasonable notice is given to the appellant.
Order
- [32]For these reasons, I will order:
- Appeal allowed;
- The orders made by the Magistrates Court at Mareeba on 14 November 2016, and the conviction and orders made by the Magistrates Court at Mareeba on the 26 September 2016, are set aside; and in lieu, it is ordered that application to re-open the proceeding is allowed;
- The proceeding is remitted to the Magistrates Court at Mareeba for rehearing and determination of the complaint and summons according to law before a different magistrate in due course.
Footnotes
[1]Allesch v Maunz (2000) 203 CLR 172 at [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4] per Muir J (Fraser JA & Mullins J agreed). See also White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed), but contrast Forrest v Commissioner of Police [2017] QCA 132, pp 5-6 per Sofronoff P (Gotterson JA, Morrison JA agreed).
[2]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124, applied in Forrest v Commissioner of Police [2017] QCA 132, 135.
[3]White v Commissioner of Police [2014] QCA 121 at [5]-[8] per Morrison JA (Muir JA & Atkinson J agreed) and Forrest v Commissioner of Police [2017] QCA 132, 135-6.
[4]Kioa v West (1985) 159 CLR 550, 582.
[5]SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [35] per Flick J cited in SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ.
[6]Kioa v West (1985) 159 CLR 550, 582.
[7]Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[8]Practice Direction number 8 of 2006 of the Magistrate Court of Queensland; Amended Practice Direction Number 12 of 2014 District Court of Queensland; and Practice Direction Number 3 of 2006 (Amended) Supreme Court of Queensland.
[9]Practice Direction number 8 of 2006, at [3].