Hook v Commissioner of Police[2022] QDC 35

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 22 August 2021, Mr Hook was ordered to appear in the Gympie Magistrates Court for a summary trial in relation to minor drug charges.  He did not appear.  On 25 June 2021, Mr Hook was charged by Bench Charge Sheet 1267/21 with one count of failing to appear in accordance with his undertaking, as an offence against section 33(1) Bail Act 1980.
2. [2]
   On 12 July 2021, Mr Hook appeared in the Gympie Magistrates Court in relation to the charge.  He was self-represented.  The learned Magistrate found him guilty of the offence and imposed a fine of $400 with 28 days to pay. No conviction was recorded.

The Offence and the Charge

3. [3]
   Section 33(1) Bail Act 1980 provides:

   1. (1)
      A defendant who—

      1. fails to surrender into custody in accordance with the defendant’s undertaking; and
      2. is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e);

commits an offence against this Act.

4. [4]
   Also relevant is section 33(2) Bail Act 1980, which provides:

2. (2)
   It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause—

1. (a)
   for failing to surrender into custody in accordance with the defendant’s undertaking; and
2. (b)
   for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable.

5. [5]
   The Bench Charge Sheet did not adopt the language of the offence creating provision. Rather, it elided ss. 33(1) and 33(2) and did so inaccurately and incompletely. The Bench Charge Sheet alleged:

That on the 22nd day of June 2021 at Gympie in the Magistrates Courts District of Gympie in the State of Queensland one Kevin Michael HOOK without reasonable cause failed to surrender into custody at the Gympie Magistrates Court in accordance with his undertaking entered into on the 8th day of March 2021 at Gympie Magistrates Court and was apprehended under a warrant issued pursuant to section 28A of the Bail Act 1980

[underlining added]

6. [6]
   Clearly the reasonable cause in s. 33(2) is a true defence which has to be established by the defendant rather than a justification or excuse to be excluded by the prosecution.  The inclusion of a reference to the statutory defence therefore means that Mr Hook was not charged in terms of the offence creating provision.  That makes the charge void and the conviction invalid.^[1]  It might be thought that including the defence in addition to the elements of the offence might not cause the charge to be void but simply be an example of an additional matter pleaded by the prosecution.  In that case the consequence would be that the prosecution undertook the burden of excluding the defence.  However, even if that could be so (and I specifically do not decide that matter), that proposition would not apply here because the charge has pleaded only half of the defence, in that it pleads the matter in s. 33(2)(a) but omits the matter in s. 33(2)(b).
7. [7]
   Accordingly, it appears to me that the charge did not identify an offence known to the law and the conviction is invalid.  However, as this point was not raised with counsel for the Commissioner at trial, and there might be some answer to the point which I could not identify, I will not decide the appeal on this issue.  It might be wise, however, for a reconsideration of the form the charge to be undertaken.

The trial

8. [8]
   The trial commenced with his Honour arraigning Mr Hook in terms of the (seemingly defective) charge in the Bench Charge Sheet.  Mr Hook responded by outlining his case as being that he had a reasonable excuse for not appearing, which his Honour understandingly treated as a plea of not guilty.
9. [9]
   Mr Hook’s attempt to explain his case occurred as follows:

DEFENDANT HOFFERTS:  We – but – we – we have a reasonable

DEFENDANT HOOK:  Yes.

DEFENDANT HOFFERTS:  excuse.

DEFENDANT HOOK:  Yes. Yes. Yes, your Honour.  I submitted a medical certificate to the court via email.

HIS HONOUR:  No. You didn’t.

DEFENDANT HOOK:  And I believe you received that.

HIS HONOUR:  Yes.

DEFENDANT HOOK:  I’ve got, now, a copy of it to hand over to you. If you wish to see that, your Honour

HIS HONOUR:  That’s a medical certificate from Ms Hofferts.

DEFENDANT HOOK:  Yes, your Honour

HIS HONOUR:  It’s not a medical certificate for you.

DEFENDANT HOOK:  We’re jointly charged, your Honour, I – I

HIS HONOUR:  I don’t care whether you’re jointly charged or not.

DEFENDANT HOOK:  I gave

HIS HONOUR:  I want to know whether you are pleading guilty or not guilty to the charge that you, without reasonable cause, failed to surrender into custody of this court.

DEFENDANT HOOK:  Well, with all due respect, your Honour. Because we were jointly charged and my

HIS HONOUR: Because you’re not answering me, I’ll enter that as a plea of not guilty. We’ll now go onto the show cause situation. Do you want to give evidence?

DEFENDANT HOOK: Yes, your Honour.

HIS HONOUR:  Thank you.  Get into the witness box.

10. [10]
    His Honour observed that Mr Hook was in a show cause situation.  His Honour undoubtedly referring to s. 33(3) and (3A) Bail Act 1980 which provide:

3. (3)
     Proceedings for an offence against this section—

1. (a)
   shall be instituted and taken, without the laying of a complaint;
2. (b)
   shall be taken in accordance with the following procedures

   1. production to the court before which a defendant apprehended under a warrant issued under section 28 or 28A(1)(a), (b), (c) or (e) is brought of that warrant shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the undertaking and of the failure to surrender into custody and that the issue of the warrant was duly authorised by the decision or order of the court that issued the warrant;
   2. judicial notice shall be taken of the signature of the person who issued the warrant referred to in subparagraph (i) and that that person was duly authorised to issue the warrant

3. (3A)
   Upon production to the court of the warrant the court shall then and there call     on the defendant to prove why the defendant should not be convicted of an offence against this section.

11. [11]
    There is no suggestion in the transcript that the warrant was produced to the Court, much less any suggestion it was tendered in evidence. 
12. [12]
    Mr Hook was then sworn, and his Honour asked him questions.  The evidence in chief was short:

HIS HONOUR:  All right.  Your full name is Kevin Michael Hook?   Yes, your Honour.

And, Mr Hook, you didn’t turn up to court on the 22nd of June 2021, and you accept that?   Yes, your Honour.

You say you had reasonable cause for failing to turn up to court;  what was that?   Your Honour, my partner, if you understand from the first mention we had with you, suffers PTSD and anxiety, and she’s just had a loss with her father.  And it’s a played a significant part in her mental health.  And myself being the support for her have – have really – really, like, had a hard time with that.  And I just seek some compassion in this – in this matter.  As it wasn’t my intention to actually not – not a appear in court.  I was under the impression that because we were jointly charged, that the medical certificate would suffice – as I’m her carer.  And it would be enough to satisfy to the court’s administration that we couldn’t attend.  With all due respect, sir.

You wrote a letter or an email from an email address called [email protected]?   Yes.  Yes, your Honour.

Under the name of Karnie Katraveller?   Yes.

And that’s to the courthouse at Gympie, and to the sergeant representing the prosecution saying:

Please be advised that I’m seeking an adjournment of the hearing this coming Tuesday, the 22nd of June.

You wrote this on Friday the 18th of June.

I have, on three occasions, requested further [indistinct] particulars in regards to the charges.  Also, I request for a witness via remote link.  As these form part of the defence in this matter and have not been provided, I seek an adjournment and ask, again, for these requests to be met.

?   Yes, that was.

Did you write that?   I did write that.  That was      

That’s why you didn’t turn up to court?   No.  That’s not why I didn’t turn up to the court      

I see?   No.  That isn’t, your Honour      

Why didn’t you turn up to court?   Well, as I said, my partner – I just – just – I’m just repeating out what I’ve just said.  That my partner has had a recent loss in her family.  Her father passed away, and we actually went to speak to the doctor about this, and she’s been seeing the psychologist about this, and having – having treatment for that.  And because she’s, you know, in a state of grief, we went to see our doctor and got a medical certificate on the ground that – you know, that we couldn’t attend, and that we wish to seek for an adjournment, your Honour.

Right.  Right?   That – so there’s actually – you’ve got that, but you’ve – there’s two instances there where I’ve applied for an adjourn.  But that – that was the first one you got, and then I did actually      

The matters are part heard.  The matter’s set down for summary trial on that day      ?   Yes

      you understand that?   Yes, your Honour.  Absolutely      

The police witnesses were here.  That sort of thing;  yes?   Yes, your Honour.  I      

Do you understand all of that      ?   I do – I      

The court set aside a day for the hearing of that matter?   Honourably      

Do you understand all of that?   Honourably, I understand that, your Honour – honourably.

DEFENDANT HOFFERTS:   We did.  We’re sorry.  I’m – we – we – we’re very sorry.  I’m sorry, your Honour.  I      

HIS HONOUR:   I’ll get onto you in a moment, madam.  Just wait.  I’m dealing with Mr Hook’s matter.  Yes.  All right.  Do you have any questions of this, sir – sorry, is there any other evidence you want to give      ?   No, sir.  Just – just have a      

      in respect of this fail to appear charge?   Just have the medical certificates tender      

Yes.  All right?          to the court.

Thank you.  Amy, can I have the medical certificate, please. 

SGT CAMPBELL:   Thank you.

HIS HONOUR:   All right.  Any other evidence?   No, your Honour.

Okay.  You wish to cross-examine him?

13. [13]
    The learned Police Prosecutor only asked two questions to establish that the medical certificate did not cover Mr Hook personally and that the certificate did not say he needed to assist Ms Hofferts.
14. [14]
    His Honour moved straight to submissions.  The Police Prosecutor submitted that the medical certificate was not a reasonable excuse because it did not cover Mr Hook and did not say that Ms Hofferts was unable to attend.
15. [15]
    Mr Hook’s submissions were short:

DEFENDANT HOOK:  Babe, please – please.  The first time we met was – was nearly a year ago, your Honour.  And I’m – we’re self-represented      

HIS HONOUR:  Who’s the we – who’s the we in this?

DEFENDANT HOOK:  Us – us – us three.  We met at a mention.  And I believe you’re aware of the time that we were – that we’re self-representing, and that I wanted to deal with this matter honourably in the court, your Honour, and I still wish to do that.  It wasn’t my intention to actually not turn up and waste the court’s time.  I’m actually – really wanted to get this dealt with in an honourable and justifiable way, your Honour.  And I seek some compassion and lenience in the fact that, you know, we’re actually going through a lot – a lot of personal losses, and it wasn’t, like I said, my intention to waste your time or the police’s time in any matter in this.  And we just seek some leniency in your discretion in that matter, please.

16. [16]
    Her Honour’s reasons were short:

HIS HONOUR:  All right.  In this matter, the defendant failed to appear in the Gympie Magistrates Court on the 22nd day of June which was the second day set for his part of the trial.  He is the co-accused with Patrisha Hofferts, and he says that, well, he did not turn up because she had a medical certificate saying she should not turn up because she is suffering personal loss and is passing through grief, and, therefore, he, being his carer, did not have to turn up.  I reject that.  He is under a different obligation to turn up to her obligation.  Does not matter whether they are co-accused or not.  Does not matter whether he is the carer or not.  Or it could matter if he is the carer, and I might well find in that case that if the care is needed genuinely, but there does not seem to be any evidence before me that that is the case.  And furthermore to that, section 33, subsection (1) provides:

A defendant who fails to surrender into custody in accordance with the defendant’s undertaking and is apprehended under a warrant commits an offence. 

Subsection 2 goes on to say:

It is a defence to an offence defined in subsection (1) if the defendant satisfies the Court that the defendant had reasonable cause for failing to surrender into custody in accordance with the defendant’s undertaking, and for failing to appear before the Court specified in the defendant’s undertaking and surrender into custody as soon as – as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable. 

I find that he has failed to satisfy me that he had reasonable cause for failing to surrender into custody on the 22nd of June.  I find that he has failed to satisfy me that he had – well, that he surrendered into custody at this Court as soon thereafter. 

…

HIS HONOUR:   So I find the defendant guilty. 

17. [17]
    It is also relevant to refer to the trial of Ms Hofferts.  She was charged with the same offence as Mr Hook and seemingly in the same terms, with one important exception.   She was charged with failing to appear on 23 June 2021 not 22 June 2021.  In fact, she failed to appear on the latter date.  She refused to consent to amendment of the charge, so his Honour went ahead on the charge as it stood.  She pleaded not guilty.
18. [18]
    His Honour again moved straight to calling on Ms Hofferts to give evidence to show cause, again presumably on the basis of s. 33(3) and (3A).  His Honour asks in this case “Do you have the warrant? Has that been given to the Court?”, but no answer is recorded.
19. [19]
    There was then a strange debate about whether the book which was being apparently used by Ms Hofferts was in fact a Bible.  His Honour asked to see the book and was told by his associate that it was the New World Translation of the Holy Scriptures.  His Honour then said “Well that’s not the Bible.  The New World Translation of the Holy Scriptures is not the Bible”.  Given its title, it is difficult to see how his Honour reached this conclusion, even if the reference to Scriptures rather than the Bible might give one cause for pause. 
20. [20]
    In any event, Ms Hofferts gave evidence about her personal difficulties sine her father died on about 13 April 2021 and the death of her dog soon after.  It is fair to say that it was not a compelling case.  There was only one question about the medical certificate in cross examination, and Ms Hofferts conceded her doctor refused to provide a certificate saying she could not attend Court.
21. [21]
    Notably, in that case his Honour asked for a warrant and was provided with an electronic warrant report.  His Honour observed that the warrant report was not a warrant.  He also observed that the date of the warrant on the warrant report was 23 June which incorrect because his Honour did not issue Ms Hofferts’ warrant on that date (presumably his Honour referred to the file before him).
22. [22]
    His Honour therefore found that no valid warrant was produced and found Ms Hofferts not guilty.  It is unclear whether the warrant was invalid because only an electronic report was produced, or because it had the wrong date, presumably both.
23. [23]
    His Honour then sentenced Mr Hook as described above.  No complaint is made about the sentence, nor could it be.

The appellant’s argument

24. [24]
    Mr Hook’s Notice of Appeal sought to advance an argument inspired by the outcome of Ms Hofferts’ trial.  Mr Hook noticed that his bail undertaking, entered into on 26 June 2021 (which occurred after his failure to appear), also contained an error as to the date of the (then alleged) offence of failure to appear which was the subject of the charge before his Honour.  Mr Hook contended that that error justified his discharge of the charge in the same way as the error in the warrant report justified Ms Hofferts’ discharge.
25. [25]
    There are two difficulties with that proposition:

    1. (a)
       First, the accuracy or otherwise of Mr Hook’s bail undertaking is irrelevant to criminal liability on the charge.  Arrest on a valid warrant is an element of the offence.  The terms of a subsequent bail undertaking are irrelevant to the commission of the offence; and
    2. (b)
       Second, as explained in paragraph [22] above, Ms Hofferts’ not guilty verdict could also be justified on the fact that, as his Honour observed, no warrant was tendered at Ms Hofferts’ trial.
26. [26]
    Mr Hook’s ground of appeal fails.  But that does not mean Mr Hook’s appeal fails.

Unreasonable verdict

27. [27]
    The offence created by s. 33(1) has the following elements:

    1. (a)
       That the defendant failed to surrender into custody;
    2. (b)
       That failure arose from a failure to surrender in accordance with his bail undertaking; and
    3. (c)
       That the defendant was arrested under a warrant issued under the Bail Act.
28. [28]
    Proof of the offence is facilitated by s. 33(3) and (3A) as set out above.  However, two points need to be noted.
29. [29]
    First, the facilitative procedure provided in s. 33(3)(b) is conditional upon production to the court of a warrant issued under the Bail Act.
30. [30]
    Second, the production of the warrant is, relevantly:

    1. (a)
       Evidence of the undertaking and of the failure to surrender into custody; and
    2. (b)
       Evidence that the warrant was authorised by the order of the court issuing the warrant.
31. [31]
    Notably, section 33(3)(b)(i) does not make production of the warrant evidence that the defendant was apprehended under the warrant.
32. [32]
    Neither the transcript of the trial or his Honour’s reasons show that the warrant which had to be relied upon to make good the offence against Mr Hook was ever produced to the court.  One might have assumed that there was a warrant before his Honour on the file which his Honour simply failed to refer to, but it appears from the proceedings in respect of Ms Hofferts that the learned Police Prosecutor produced, at most an electronic warrant report for Ms Hofferts which his Honour characterised as being not a warrant.  Based on that event, it does not appear that the production of a warrant for the arrest of Mr Hook was produced or was likely to be produced by the Police Prosecutor.  Whatever happened, there was no basis upon which his Honour could conclude that the warrant had been produced to the Court.  That had two consequences:

    1. (a)
       The evidential presumptions in s. 33(3)(b) did not arise; and
    2. (b)
       There was no evidence before his Honour to make good the third element of the offence because there was no evidence of the warrant.
33. [33]
    The effect of the first matter is that the defendant was not in the position of a defendant under s. 33(3A). Accordingly, the procedure followed at trial miscarried.  The prosecution case should have been conducted first, with the defendant responding in the normal manner.
34. [34]
    The effect of the second matter is more fundamental.  In the absence of the production of the warrant, Mr Hook’s plea of not guilty put all the elements of the offence into issue.  If no evidence of an element of the offence was tendered by the prosecution, Mr Hook was entitled to an acquittal.^[2]   Accordingly, the verdict cannot be sustained.  It must be set aside and a verdict of not guilty entered.

Conduct of the examination in chief

35. [35]
    The Court’s duty when conducting a proceeding involving a litigant in person has been the subject of numerous cases in intermediate Courts of Appeal^[3] and in the High Court.^[4]  It is generally recognised in the authorities as comprising a duty to ensure a fair trial, despite the shortcomings of the self-represented party.  The formulation of this ‘duty to assist’, varies from case to case.   It is sufficient to refer to Tomasevic v Travaglini (2007) 17 VR 100 where the trial Judge observed: 

139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

141 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

142 The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.

36. [36]
    One role properly undertaken by a trial Judge is to assist a litigant in person who is giving evidence in his or her own trial.  At the least, this involves assisting the litigant to complete the formalities and then to ask questions which, based on the issues and the Judge’s knowledge of the case, are likely to assist the litigant in giving the evidence he or she can relevantly give.  It is a difficult task bearing in mind the importance of the Court remaining impartial, the challenges of assisting a litigant in person and the need to avoid cross examining the litigant in their own case.  The line can be difficult to draw.^[5]
37. [37]
    I have set out above the whole of the evidence of Mr Hook.   His Honour conducted the examination of Mr Hook.  He was correct to do so.   However, when assisting a litigant in person to lead evidence, a Judge must be mindful of the role he or she is playing.  The role is to assist the litigant in person to give such relevant evidence as they can give, bearing in mind the issues in the proceeding.   How far the Judge should go in exploring the issues using open questions is difficult to decide at the best of times, much less in a busy Magistrates Court.  But the role is not to seek to obtain admissions nor to cross examine in a manner which puts the litigant in person at a disadvantage in the witness box.  That is a matter for cross examining counsel.
38. [38]
    Even bearing in mind the circumstances of the particular trial, I respectfully consider that the approach by the learned Magistrate to assisting Mr Hook to lead his evidence fell down somewhat, bearing in mind his duty.  In the course of Mr Hook trying to explain the circumstances of a previous adjournment of the matter, his Honour examined Mr Hook to obtain admissions as to his knowledge of the inconvenience to the parties and the Court of his non- appearance at the trial: see underlined passage in paragraph [36] above. This was examination was irrelevant.  Its purpose seemed to be to confront Mr Hook with the harm done by his non-appearance.  Its effect was to cause Mr Hook to apologise.  The question of whether Ms Hofferts’ condition that day justified his non-appearance remained only fleetingly explored. 
39. [39]
    It can accepted that it is unlikely that this aspect of the examination caused the trial to miscarry.  However, even in busy Magistrates Courts, care must be taken in the way a judicial officer assists in the leading of evidence from a litigant in person.

Conclusion

40. [40]
    None of the above matters were raised by Mr Hook in his Notice of Appeal.  However, this Court may act in an appeal by way of rehearing when it identifies error, whether it is raised by the appellant or not.  Natural justice must be afforded to the respondent when such an approach is contemplated.  Ms Olivero, of the Director’s Office, appeared for the Commissioner.  After I raised the above matters, she took the opportunity to adjourn and consider the respondent’s position.  Ultimately, she returned and conceded that the appeal should be upheld.  
41. [41]
    For the above reasons, the conviction must be set aside and a verdict of not guilty entered for the appellant.