Howard v Attorney-General[2022] QDC 232

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 2 May 2022 the appellant was charged, tried, and sentenced in respect of one count of contempt pursuant to s 40(1)(a) Justices Act 1886. He appeals both the finding and sentence.
2. [2]
   The grounds of appeal addressed in the amended notice of appeal are:

1. The learned Magistrate erred in convicting the appellant of contempt because:
   1. (a)
      the comment was not made “wilfully”;
   2. (b)
      cause was shown purging the contempt.
2. The learned Magistrate erred in failing to provide reasons for convicting the appellant of contempt.
3. The sentence imposed was manifestly excessive given the recording of a conviction.

The background

3. [3]
   The appellant had appeared before a magistrate on 2 May 2022 in respect of a number of serious offences for which he had been earlier arrested and remanded.  The matters were mentioned at that time before an application was made for bail in contemplation of later disposition of the charges. Bail was opposed by the prosecution as the appellant was, inter alia, in a show cause position. At 9:15 that morning the Magistrate heard and determined the bail application. He provided brief reasons before ultimately ruling that “bail is refused”.
4. [4]
   I note from the transcript that the appellant made numerous offensive remarks during the course of the prosecutor’s submissions opposing bail which appeared to have been allowed to pass without remark by the bench. However, upon the making of his order the transcript reveals that the appellant stated:

“Fucking dogs, fuck you, fucking maggot”.

5. [5]
   The transcript does not reveal where the appellant was positioned as he made these remarks but it is open to be inferred that the remarks were made by him from the dock and directed to the magistrate and made in the course of him transiting from the dock into the holding cell adjacent to Court 1 as the following was recorded:

His Honour:Who is your ne – bring him in.  Bring him in.

Unidentified speaker

(probably the police escort):Come here. Come here.

His Honour:Bring him in.

Unidentified speaker

(probably the police escort):The judge wants you.  You might get another charge.

There was no direct evidence concerning who was present in court at the time of the appellant’s utterance but given the events occurred in Court 1 it is reasonable to infer that aside from the presiding Magistrate, the police prosecutor, and the appellant’s solicitor, there would also have been the police escort in the dock and the Magistrate’s Clerk as well as others awaiting mention of their matters. It follows that the utterance of those words was not confined to an exchange solely between the Magistrate, the appellant, the prosecutor and the appellant’s solicitor. The remark was made in circumstances that clearly challenged the authority and dignity of the court.

6. [6]
   A further exchange occurred between the Magistrate and the appellant’s solicitor advising him that he ”might want to take instructions on the contempt charge … specifically the address to me as a “maggot”, that will be dealt with by way of a contempt charge.”
7. [7]
   Subsequently a bench charge sheet was drawn up under the hand of the Magistrate.  It alleged:

“That on the second day of May 2022 at Brisbane in the State of Queensland Jack Andrew Howard was in contempt of this Court by calling the presiding Magistrate ‘a maggot’. 

8. [8]
   At 2.13 that afternoon the matter came back before the Court. The transcript reveals the disposition of the bench charge-sheet was swift. The following exchange occurred:

“His Honour:Okay.  Mr Howard, I’m going to call upon you for the charge of contempt.  You’re charged that today, the 2^nd of May 2022 at Brisbane, you’re in contempt of this Court by calling the presiding Magistrate ‘a maggot’.  Why shouldn’t I find you guilty of that charge.

Defendant:Sorry, your Honour.  I apologise for doing that.  I apologise for my outburst.  Like, I honestly did not mean to do that.  Like, I – I honestly am sorry about that.  It was not supposed to happen at all.  It’s just because – yeah – no, there’s no excuse.  I shouldn’t have done it and I’m sincerely sorry your Honour.

His Honour:Do you wish to be heard, Mr Leslie?

Mr Leslie:I do, your Honour.  Given – given that in the power to have someone cited with contempt is a fairly extraordinary one.  I think it’s important that – – –.

His Honour:It’s not too extraordinary.  It’s made out in pretty clear and simple circumstances such as the one we have here – – –.

Mr Leslie:Yes.  I think – – –.

His Honour:– – – when you look at the Justices Act.

Mr Leslie:In my submission, it needs to be clearly particularised with reference to either section 40 of the Justices Act or section 50 of the Magistrates Court Act in relation to what subsection he’s being charged with: whether its wilful interruption or wilful insulting.  These things need to be spelt out.

His Honour:Well, it was a wilful insult.

Mr Leslie:Yes.  And all I wish to note in relation to the word ‘wilful’ is that its not there for no reason.  Cases like Lockwood, Justice Lucas therein, in relation to arson, talked about specific intent being required for the word – things like ‘wilful’.  I’ve noted previously that Mr Howard suffers from ADD and ADHD, has difficulty with self-regulation and self-control.  He’s impulsive.  These things are such that it is not a foregone conclusion that whilst disgraceful as the behaviour was, it would amount to a wilful insulting.  That’s all I wish to say in relation to it, that procedural fairness needs to be afforded in the form of clear and particularised – – –.

His Honour:Well, that’s why I’ve called upon him and I’m dealing with him under section 40, subsection 1(a):

‘Wilfully insults a justice or a witness and officer during his or her sitting as, or, as the case may be, attends in a Magistrates Court or during his or her sitting.

That’s what I’m dealing with him for.’

Mr Leslie:Yes.  I respectfully submit it’s not clear it was wilful in the sense contemplated by parliament, but I can’t take that further.

His Honour:All right.”

At that point his Honour then proceeded to dispose of the charge stating,

“His Honour:It’s pretty clear to me.  I find the defendant guilty.  I accept the apology and take no further action.  A conviction is recorded.  All right.  Thank you.”

Principles informing appeal

9. [9]
   Appeals in this instance are provided for by s 222 Justices Act 1886 which provides,

222Appeal to a single judge

1. (1)
   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.

1. (a)
   …;

1. (b)
   …;

1. (c)
   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.

223Appeal generally a rehearing on the evidence

1. (1)
   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

1. (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.

1. (3)
   If the court gives leave under subsection (2), the appeal is—

1. (a)
   by way of rehearing on the original evidence; and
2. (b)
   on the new evidence adduced.

10. [10]
    In Forrest v Commissioner of Police [2017] QCA 132 (‘Forrest’) the President observed concerning appeals pursuant to s 222:

“It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.”

11. [11]
    Later his Honour continued,

“Yet an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case. That has been established by numerous cases: see for example Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; and, Dwyer v Calco Timbers (2008) 234 CLR 124. Consequently, the learned District Court judge (has) to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.”

12. [12]
    That approach informs my approach to this appeal.

Reasons for decision

13. [13]
    The underlying complaint by the appellant contended in ground 2 is that the Magistrate did not provide sufficient reasons for his findings on either guilt or sentence as to reveal the basis for his conclusion. That contention is informed by the matters contended in ground 1. As the disposition of that ground involves consideration of matters raised in ground 1, I will address ground 2 first.
14. [14]
    Before addressing the appellant’s grounds of appeal I will first address a matter raised by the respondent. That is that the appellant is confined only to an appeal against sentence pursuant to s 223 Justices Act 1886 as he has pleaded guilty to the offence or otherwise admitted the truth of the complaint.
15. [15]
    While the Magistrate had an offence against s 40(1)(a) Justices Act 1886 in mind that was not the charge recited. The charge recited made no reference to the element of ‘wilful’, a matter required by the statute. Accordingly, as stated, the charge only addressed common law contempt; not the offence provided by the Justices Act with which the Magistrate intended to proceed.
16. [16]
    The appellant’s responses have relevance as I explain below. However, they were not an admission to the bench of the charged statutory offence as opposed to the common law offence recited to the appellant and upon which he was called to answer. Had it been the Magistrate’s intention to charge him with the common law offence of contempt (which was available to him) then the process provided for in the Uniform Civil Procedure Rules 1999 (‘UCPR’) would have been required. That would have required the appellant be called upon to “show cause why punishment should not be imposed” in contrast to “show cause why (he) should not be convicted” as is required by s 40(3)(c) Justices Act 1886.^[1]
17. [17]
    Importantly the charge was defective as it did not include the essential element alleging the insult was ‘wilful’. This was a significant omission, especially given the appellant’s solicitor’s awareness of the necessity of this element and his submission requesting he be heard in respect of it. That failure alone is in my view fatal to the finding of guilt: see R v Griffin (1989) 88 Cr App R 63 at 71.^[2]
18. [18]
    The respondent submits the appellant by his conduct entered a plea of guilty to the charge or otherwise admitted the truth of the complaint. However, I do not think his statement of apology can necessarily be accepted to be an unequivocal plea or admission in these circumstances, especially when the critical element of the insult being ‘wilful’ was not indicated prior to his being called upon. A plea can only be accepted if it is unequivocal. It follows the entry of a plea to an ambiguous charge cannot be said to be unequivocal.^[3] Likewise, the same principle applies to an equivocal admission. I am satisfied there was no plea or admission to the facts necessary to support a charge pursuant to s 40(1)(a) and accordingly the appellant is entitled to appeal the finding of guilty.
19. [19]
    Moving then to ground 2 of the appeal.
20. [20]
    In Forrest at page 7 the President observed considering the need for reasons as follows:

“It is fundamental that a judicial decision must be a reasoned decision and not an arbitrary one.  If the process of reasoning is not exposed in written reasons then a reasoned decision cannot be distinguished from an arbitrary one.  Nor is it possible for an appellate court to do its duty of reviewing such a decision if a judge gives no explanation of his or her reasoning.”

21. [21]
    Here that is relevant to two aspects of his Honour’s decision. First, the relevant offence charged and secondly, its particulars.
22. [22]
    The bench charge sheet refers solely to “s 40(1)(a)”. There was no accompanying statutory reference although by reference to the section it is evident the Justices Act 1886 was the relevant statute. It was only after the appellant was called upon that the basis for the charge was expressly revealed, that is the charge was being preferred under the Justices Act 1886 and not another enactment or at common law. That was important in this context because upon the appellant’s solicitor being informed the charge was preferred pursuant to the Justices Act 1886 he immediately identified the need for proof of the element of ‘wilful’ in respect of the insult. Although each of s 40(1)(a) of the Justices Act 1886 and s 50(1)(a) Magistrates Court Act 1921 appeared to create a similar statutory offence of “wilful insult” of a justice “during the person sitting,” each offence provides for a differing process of trial and punishment, similarly with contempt at common law.
23. [23]
    In this case the Magistrate proceeded under the Justices Act 1886 and the process provided by it. However the distinction is significant because had he proceeded in accordance with the Magistrates Court Act 1921 or at common law he would have been required to comply with the process provided for in Chap 20, Div 2 and/or Div 3 of the UCPR^[4] which provides for a mandatory procedure not adopted in this instance.
24. [24]
    In this instance when the Magistrate called upon the appellant for the charge of contempt he did not specify whether the charge was pursuant to the Justices Act, Magistrates Court Act 1921 or at common law. That omission in my view was important in this instance because the appellant’s solicitor had in mind a statutory offence and an awareness that, irrespective of which statutory offence was applicable, an offence would only arise if the insult was “wilful”. The element of “wilfulness” is not required at common law. At common law mens rea is necessary but it is less clear whether such offending conduct need be intended to interfere with the relevant proceedings.^[5] He submitted the appellant’s behaviour “whilst disgraceful” did not automatically give rise to the behaviour amounting to “a wilful insult”. The Magistrate acknowledged that the contempt he was addressing was one for which there had to be an element of wilfulness and found accordingly. However, in doing so, his reasons did not explain why he was satisfied beyond reasonable doubt it had in fact been established in this instance.
25. [25]
    I accept the appellant’s submission that the Magistrate’s omission to address this contested element gave rise to error by him in his failure to disclose his reasoning against the appellant on this critical element. On this basis the appeal should be allowed.
26. [26]
    It follows in my view that no plea of guilty was entered or admission made to the offence and otherwise for the reasons above the conviction cannot stand. It must be set aside, and also the sentence of conviction with no punishment.
27. [27]
    Despite the appeal being allowed on the finding of guilt that does not bring the matter to a conclusion. The appeal is by way of rehearing upon the evidence before the court at first instance.
28. [28]
    The appellant does not deny directing the words “fucking maggot” to the Magistrate in response to his being refused bail.  Ignoring the adjective, he plainly called the Magistrate a “maggot”.
29. [29]
    Maggot is described in the Aussie Slang Dictionary as “a reprehensible character”.  It is based upon a strict dictionary meaning of “the legless larva of a fly, a fly larva living in decaying matter.”  On any construction it is not a term of endearment when used to described someone.  In context it was plainly intended as an insult.
30. [30]
    Even the appellant’s solicitor acknowledged in his submissions the “behaviour” was disgraceful.  I assume his submission was directed to the appellant’s use of the term “maggot” as alleged and accepted it was in that context insulting.  I am satisfied beyond reasonable doubt that in context the use of the term “maggot” when directed by the appellant to the Magistrate was in fact insulting.
31. [31]
    The issue remains as to whether the insult was wilful.
32. [32]
    For the appellant it was contended that the appellant suffers from ADD and ADHD and had difficulty with self-regulation and self-control.  Accepting all that to be the case those matters were not contended to give rise to a defence under Chapter 5 of the Queensland Criminal Code 1899 remembering the s 26 presumption of sanity and the onus upon the appellant to prove otherwise.  Plainly the matters raised by the appellant’s solicitor were relevant to sentence but did not of themselves constitute a defence.  Nonetheless the appellant did not discharge the burden of rebutting the presumption of sanity.
33. [33]
    The issue remains concerning whether the evidence establishes that the appellant “wilfully” insulted the Magistrate.
34. [34]
    It is well settled that intent, being a state of mind, is a question of fact and that in most cases the outcome will depend on an inference to be drawn from the primary facts found by the tribunal of fact: Kural v The Queen (1987) 162 CLR 502 at 505.  In R v Reid [2007] 1 Qd R 64 at 85 Keane JA (as His Honour then was) with whom Chesterman JA agreed applied the observations of Kirby J with whom McHugh J agreed in Cutter v The Queen (1997) 71 ALJR 638 at 648 when his Honour stated:

“It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged.  Attempts have been made to define the meaning of ‘intent’ or its derivatives.  However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning.  The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused's motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the ‘subjective’ intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence.” (citations omitted)

35. [35]
    What needs to be established is the actual subjective intention of the accused to bring about the outcome (here an insult).  It is not enough that such an outcome is the consequence of those acts, or the acts were deliberate.^[6]
36. [36]
    In this case there was no question the appellant uttered the words. Given the words were uttered immediately following the giving of reasons related to his unsuccessful bail application I am satisfied they were directed to the Magistrate as the decision maker. The decision followed upon the exercise of judicial power. The outcome was unfavourable to the appellant. Earlier in the course of submissions concerning bail the appellant had made numerous remarks and comments such as “fuck off” and “fuck all these [indistinct]” and “fuck [indistinct]” in the context of unfavourable submissions made by the prosecutor concerning his bail application.  Those remarks indicate he was clearly unhappy with the submissions made against him in the course of the bail application, which unhappiness was further inflamed upon his hearing the Magistrate’s decision. While I accept it is open to find that the gratuitous remarks made during the course of submissions were made out of frustration and perhaps not intended to be insulting to the Magistrate, the “maggot” remark directed to the Magistrate was of an entirely different character. That remark was clearly directed to the Magistrate; it was directed to him after a decision made by him concerning the appellant’s bail; it followed the Magistrate receiving information which was highly prejudicial to the appellant’s bail application; and the outcome involved an inevitably uncomfortable impact upon the appellant. It was a decision that aggrieved him. 
37. [37]
    Ultimately a state of mind concerning wilfulness is established circumstantially. Here I am satisfied from the evidence and facts as recited above that the only reasonable conclusion open in the circumstances is that the remark was a wilful remark. As the remark was an insulting remark it was also on my finding wilfully insulting. There is in my view no other reasonable view consistent with innocence open in the circumstances.
38. [38]
    It was submitted the ‘maggot’ comment was an utterance of frustration not intended to interfere with the judicial process. That is not the test. The test is whether the insult was wilful. Even a comment made in a state of frustration can be an insult, wilful or otherwise. Whether or not it was intended to interfere with the judicial process is not relevant. Just because an insult lacks that object does not deny it the character of an insult.
39. [39]
    I am satisfied beyond reasonable doubt that the ‘maggot’ remark was addressed to the Magistrate and it was addressed to him as an insult. It was made wilfully during his sitting and was not intended to be construed in any other way, and was construed by him that way. 
40. [40]
    I note the appellant’s submission that the power to deal with contempt ought not be exercised to vindicate the personal dignity of the judge. However, the judge’s view of the insult is relevant. In the footnote to s 40 in The Justices Act of Queensland 1886 to 1949,^[7] the learned author observed, the question whether the words used were in fact insulting beyond reasonable doubt involve an enquiry as to whether a reasonable Magistrate not merely a reasonable man – exercising his office would be insulted by the words used and as to whether the words used are “beyond reasonable doubt insulting”. This approach was touched upon by the Full court in Dow v Attorney General [1980] Qd R 58 at 62 where W.B. Campbell J in considering the case then before the court and in refusing leave to appeal noted of the case then before the Court that the question before it was whether the judge at first instance ‘… could reasonably have considered that the conduct of the applicant was a contempt or, in the instant case, whether he could reasonably have concluded that the statutory offence created … was committed by the applicant”.
41. [41]
    Respectfully, nothing evident from the authorities cited above and the approach taken by them departs from the principles enunciated in Lewis v Ogden (1984) 153 CLR 682. That authority was principally relied upon by the appellant. It was a case which I note was considering a materially similarly worded statutory provision.
42. [42]
    Finally, the appellant submitted insufficient credit was given to the apology by the appellant ‘purging his contempt’. The concept of purging contempt more commonly relates to civil contempt proceedings associated with an ongoing failure to comply with court orders.^[8] A criminal contempt generally has a different character to civil contempt, as in this case. Here there was a discrete incident. The finding concerns that incident. Once proven, a remedy for remitting or giving respite from punishment on the basis of apology is afforded by s 40(4) Justices Act 1886. However, the incident having been proven it cannot now be purged. Submission must be made to the Governor in Council for relief as provided by that provision.
43. [43]
    In summary considering those matters I am satisfied beyond reasonable doubt that the word “maggot” used in the context of this case was used in a wilfully insulting manner towards the Magistrate during his sitting and further that in context a reasonable Magistrate would have found the word insulting.
44. [44]
    I find the appellant guilty of the offence provided by s 40(1)(a) Justices Act 1886 of insulting a justice during his sittings.

Sentence

45. [45]
    The appellant succeeded on appeal against the finding of guilt.  Upon rehearing I have found him guilty and it falls for me to sentence him for the offence.
46. [46]
    I observe that at first instance the appellant was convicted and not further punished.  In respect of that sentence objection was only taken to the recording of a conviction.
47. [47]
    The appellant is now 18 years of age, as he was at the time of the offence.  He is a youthful offender.  He has no adult criminal history save for the two bail offences in respect of which he was fined nominal sums with no conviction recorded in each instance.  Although his extensive and concerning youth justice history that came before the court in the context of the circumstances surrounding his offending the subject of the finding of guilt, he enjoys the legal fiction of being treated as a first‑time offender.^[9]  He has disadvantaged antecedents which undoubtably inform his interaction with authority figures and his incapacity to deal with disappointing outcomes, occasioned in particular by action taken to address the situations entirely of his own making.  These matters are not assisted by his mental health issues.  Those factors render him at greater risk of inappropriate responses such as occurred on the relevant occasion here.  The appellant needs to develop insight and perhaps that might come with maturity. The maximum penalty provided for by the legislation is 84 penalty units or 12 months’ imprisonment. 
48. [48]
    Concerning sentence for contempt it has been observed:

“Contempt of court is a distinct offence attracting remedies which are sui generis.  It is required of the chosen remedy that it be effective,  no more but no less.  For, if it is not effective, serious and lasting damage to the fabric of the law may result.”^[10]

49. [49]
    Plainly general deterrence and community denunciation are called for in sentence.  Additionally, an element of specific deterrence should not be overlooked. The appellant has a history of non-compliance with bail obligations suggesting a general disregard for authority which ought not go unaddressed simply because of youth.  Plainly, rehabilitation is also a significant factor having regard to his youth and recognising that in respect of at least one earlier sentence the appellant did not offend for almost the entirety of his period of supervision under probation which suggests he has prospects although guarded.
50. [50]
    After having made his contemptuous remarks, the appellant was subsequently remanded albeit his bail application had been refused in respect of other offending but nonetheless that presented an opportunity over a number of hours for him to consider his behaviour.  He apologised reflecting in my view some insight and remorse.  The circumstances suggest an immediate acknowledgement of his contempt, in other words he ought be entitled the benefit of an early plea.
51. [51]
    Having regard to those factors, I am of the view that although his future prognosis could be seen as guarded in the context of this offending, the sentence should be a finding of guilt with no recording of a conviction and no further punishment be imposed.

Summary

52. [52]
    The appeal is allowed.  Upon rehearing I find the defendant guilty of one count of contempt.  By way of sentence, I order that there be no further punishment and that no conviction be recorded.

Orders

1. Appeal allowed.
2. Find the appellant guilty of contempt.
3. Sentence appellant to no further punishment, no conviction recorded.