Beasley v Lane
[2011] WASC 98
•15 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BEASLEY -v- LANE [2011] WASC 98
CORAM: JENKINS J
HEARD: 15 FEBRUARY 2011
DELIVERED : 15 APRIL 2011
FILE NO/S: SJA 1067 of 2010
BETWEEN: DANIEL NATHAN BEASLEY
Appellant
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :AR 4205 of 2010
Catchwords:
Criminal law - Appeal - Contempt of court - Improper pressure by magistrate to enter plea of guilty - Whether plea of guilty was free and voluntary - Whether the appellant could in law be guilty of the offence
Legislation:
Criminal Procedure Rules 2005 (WA), r 67(4)
Magistrates Court Act 2004 (WA), s 15(1)
Result:
Leave to appeal granted on grounds 1 and 3
Appeal allowed
Verdict of conviction set aside
Acquittal entered
Category: B
Representation:
Counsel:
Appellant: Mr R W Richardson
Intervener: Mr G T W Tannin SC & Mr S R Ivey
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Intervener: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hogue v The State of Western Australia [2005] WASCA 102
JENKINS J: On 17 June 2010, the appellant was convicted in the Magistrates Court at Perth of contempt of court. He was fined $500. He appeals his conviction.
Parties to and appearances in the appeal
The notice of appeal names 'Barbara Lane SM' as the respondent to the appeal. The appeal notice was apparently served on her Honour but she did not file a form 22 (Notice of respondent's intention). Her Honour filed a notice of intention to abide the decision of the court on appeal save as to costs. Consequently, her Honour was not entitled to (nor did she wish to) take part or be heard in the appeal and she is not a party to the appeal: Criminal Procedure Rules 2005 (WA) (CPR), r 67(4).
As there was no respondent to the appeal, through the State Solicitor for Western Australia, I requested the Attorney General for Western Australia to consider appearing as amicus curiae. Ultimately, the Honourable Attorney General applied to, and was granted leave to, intervene in the appeal. I am grateful for the helpful written and oral submissions made by counsel on his behalf.
An issue arose during the course of the appeal as to the appropriate parties and title to the appeal. The appellant is of the view that Ms Lane should be named as a respondent. The intervener does not agree. Regardless of any difficulties relating to naming a judicial officer as a respondent to an appeal of this nature, CPR r 67(4) means that the presiding magistrate is not a party to the appeal. Thus, it is not appropriate to name her Honour as the respondent to it. In these circumstances, it is practical and appropriate to entitle the appeal as between Daniel Nathan Beasley, as the appellant and the Attorney General for Western Australia, as intervener.
Grounds of appeal
The grounds of appeal are:
1.The conviction of the appellant for contempt of court pursuant to s 15(1)(a)(iii) of the Magistrates Court Act 2004 ('the charge'), has occasioned a miscarriage of justice, in that the conviction was based on a plea of guilty, following a plea of not guilty, as a result of improper pressure exerted by the learned magistrate.
2.The respondent erred in law in accepting a change of plea from not guilty to guilty when, as a matter of law, the learned magistrate was precluded from accepting the plea, by reason of her improper conduct which demonstrated actual bias or pre‑judgment, or by reason of a reasonable apprehension of bias.
3.The respondent erred in law by accepting a plea of guilty when it was clear that the plea was not a free and voluntary plea.
Eight particulars are given of ground 1. Those particulars allege that:
1.the appellant was 'improperly coerced' to enter a plea of guilty to the charge;
2.the appellant entered his plea in the erroneous belief that he had no choice but to do so;
3. and
4.the plea was entered 'following the improper cross‑examination' by the magistrate of the appellant and his counsel;
5.the magistrate misrepresented the elements of the charge;
6.in effect, the magistrate induced the plea of guilty by advising the appellant that if he pleaded guilty the matter could be postponed to another day for sentencing, but that if he maintained a plea of not guilty he would have his trial within that day;
7.the appellant did not intend to admit his guilt when he changed his plea to guilty; and
8.a plea of guilty should not have been accepted when 'on the incontrovertible facts' the appellant could not in law be convicted of the offence.
The circumstances giving rise to the charge
On 4 June 2010 the appellant, who was represented by counsel, appeared before her Honour in the Magistrates Court at Armadale. A charge of assault occasioning bodily harm in circumstances of aggravation was before the court for mention. After hearing from counsel, the magistrate said 'remanded in custody to 25 June 2010 on the video list'. The appellant then turned away from the magistrate to go back to the cells. However, his counsel asked the magistrate a question as to whether there was a video list on that date. Her Honour said she did not know and asked a question as to whether the matter could be heard by video link. The following exchange then took place between her Honour and the appellant:
HER HONOUR: Mr Beasley, you are a schedule 2 offender - turn around, please.
BEASLEY, MR: What do you want? What do you want?
HER HONOUR: Turn around.
BEASLEY, MR: What do you want?
HER HONOUR: To win lotto.
BEASLEY, MR: Well then go and buy a lotto ticket.
HER HONOUR: Mr Beasley.
BEASLEY, MR: I haven't got a ticket for you.
HER HONOUR: Mr Beasley ‑ ‑ ‑
BEASLEY, MR: What the fuck do you want?
HER HONOUR: Oh good, this is just what I want. I am now going to have to deal with you for contempt of court. That means you will become a sentenced prisoner this afternoon and not a remand prisoner. Do you understand? I will now draw up the complaint in relation to wilfully being ‑ ‑ ‑
BEASLEY, MR: You just remanded me in custody and said to go. You said remanded in custody, didn't you?
HER HONOUR: Stand down. Ms Kilby, can you talk to your client. I will bring him back later for the contempt of court charge. Can you draw that up, section 15 Magistrates Court Act. Thank you (ts 4/6/10, page 3).
Later that day the matter resumed before the magistrate. The magistrate opined that the appellant might have been under the influence of amphetamines. His counsel said that she did not know what he was under but her personal view was that he was under the influence of some substance. Counsel advised the magistrate that the appellant would like to apologise. Her Honour said that she was not going to accept that. She said that she was concerned about the appellant's behaviour and 'people's safety'. The appellant was then brought up and her Honour asked the appellant what he had taken. The appellant said that he had consumed alcohol, cannabis and amphetamines the previous day. Without prompting from his counsel, during the exchange with the magistrate, the
appellant apologised to her for his earlier behaviour. The magistrate made the comment that his behaviour was not appropriate. She said:
You screamed at me; you swore at me and you were frightening. I knew that you were under the influence of something, I wasn't quite sure what. But it would have to be amphetamines for your reaction (ts 4/6/10, page 5).
Her Honour then said that the appellant was charged with contempt of court by swearing at the court, thereby insulting the court under the Magistrates Court Act 2004 (WA), s 15(1)(a)(iii). She advised him that she was going to sentence him in respect to the charge but that it was probably inappropriate to sentence him that day. This reluctance seemed to be because of her Honour's concerns about his intoxicated condition. After an exchange with the appellant over unrelated matters, her Honour indicated that she would adjourn the charge to 15 June 2010 in the Perth Magistrates Court. The appellant's counsel asked whether there was a prosecution notice that was to be served. The magistrate advised of the number and content of the notice and said:
HER HONOUR: And the court convicts because it is my signature on the document and I am the person who convicts him. What I usually do is get a disc of what he said to me so that you can hear it again if you need to.
KILBY, MS: Okay, thanks.
HER HONOUR: I usually play that in the courtroom so that he is fully aware of what the contempt is. All right, thank you, and I do (indistinct) appearance with a bring‑up order (ts 4/6/10, page 8).
Prosecution notice 4205/10 in the Magistrates Court at Armadale states that the appellant on that date at Armadale 'was in contempt of the Armadale Magistrates Court by swearing at the court, thereby insulting the court' contrary to the Magistrates Court Act s 15(1)(a)(iii).
The prosecutor is named as the Armadale Magistrates Court. The person issuing the notice is stated to be 'Ms B Lane', 'Magistrate'. The prosecution notice is signed by her Honour. The notation on the prosecution notice states that on 4 June the appellant was remanded in custody to 15 June 2010 in person for sentence. However, there is a further notation on the prosecution notice which indicates that the appellant was not convicted until 17 June 2010. The appeal was argued on the basis that the proceedings on 4 June did not prevent the appellant from entering a plea of not guilty on 17 June. I have determined the appeal on that basis.
Subsequent proceedings on the charge
There is no indication as to why the matter did not proceed on 15 June. The transcript on 17 June commences with a different defence counsel advising her Honour that the appellant's instructions were to plead not guilty to the charge. Her Honour then said:
HER HONOUR: On what basis?
OWEN, MR: On the basis of the instructions of not guilty, your Honour.
HER HONOUR: I want to know on what basis? Tell me the basis.
OWEN, MR: Your Honour, I can't advance the submission any further than there's a plea of not guilty.
HER HONOUR: Well, I will ask Mr Beasley why he has given you those instructions.
OWEN, MR: Your Honour, Mr Beasley is represented by counsel and I have indicated that the instructions are that there's a plea of not guilty.
…
OWEN, MR: I apologise for the confusion, your Honour. Is the trial proceeding today?
HER HONOUR: Yes, absolutely. The trial goes ahead today.
OWEN, MR: Then in relation to setting a trial date today ‑ ‑ ‑
HER HONOUR: No, no. The trial goes ahead today. Mr Beasley, talk to your lawyer please. I am happy to put it off for sentencing if you want counsel to appear.
OWEN, MR: Your Honour, I impose on the court to stand the matter down and I will receive instructions and not delay the court - perhaps 10 minutes (ts 17/6/10, pages 2 ‑ 4).
The matter was then stood down. When it was recalled, counsel advised her Honour that the plea of not guilty was maintained. He asked that the matter be adjourned to another date for hearing. Her Honour indicated that she was available that day and that she would give a not before time of midday. Counsel referred to an issue of perceived bias by the magistrate. The magistrate acknowledged that she could send the charge to another court. However, she proceeded to indicate that she would stand the matter down to 12.00 pm and she directed counsel to listen to the audio of proceedings on 4 June 2010. After an exchange with counsel, the following occurred:
HER HONOUR: I still do not understand the basis of your not guilty plea in relation to your client. Mr Beasley, why are you pleading not guilty? You tell me.
OWEN, MR: Your Honour, in regards to ‑ ‑ ‑
HER HONOUR: Be quiet, Mr Owen, please for the moment. On what basis?
BEASLEY, MR: Because I'm getting told to.
HER HONOUR: Who is telling you to plead not guilty?
BEASLEY, MR: The lawyers, Miss. I just want to get it over and done with. I don't know what's going on.
HER HONOUR: Do you understand the charge? I went through it with you before in Armadale.
BEASLEY, MR: Yeah.
HER HONOUR: This is swearing at the court, remember (indistinct)?
BEASLEY, MR: Yeah, yeah.
HER HONOUR: And I asked you why you did that.
BEASLEY, MR: Beg pardon?
HER HONOUR: Sorry, I have got a cold - I asked you why you did that? I think it was Ms Kilby who was present. Do you remember the female lawyer from ALS?
BEASLEY, MR: Why did I do what?
HER HONOUR: Swear at me.
BEASLEY, MR: You asked me if I had come off drugs or alcohol.
HER HONOUR: Yes, I did.
BEASLEY, MR: And I said, yes.
HER HONOUR: And the reason I didn't sentence you on that day, after admitting that you swore at me in court with Ms Kilby present, was because you told me that you'd had some alcohol, some cannabis and some amphetamines. At that point in time I decided that it might not be appropriate to sentence you because of the fact that you were still under the influence of those drugs, and Ms Kilby asked me not to sentence you on that day but to put it over to another date so that you are clearer thinking and you could give proper instructions in relation to your background.
Now, that's what I expected to be doing today, because with Ms Kilby present (indistinct) your client admitted that he had sworn at me in court. He did apologise and I accepted that apology, but said I would still sentence when he was in a fit state to be sentenced - not when he was under the influence of anything. I suggest you talk to Ms Kilby.
OWEN, MR: Your Honour, I have liaised with Ms Kilby in regards to - solely on the issue of whether a plea of guilty was entered. Your Honour, it may be that if, in regards to the audiotape and receiving further instructions that the matter may not progress to trial, and in regards to that, that's perhaps the first application why the matter should be adjourned so that we can receive that.
HER HONOUR: I wanted that resolved today and I am not going to allow it to carry on. Mr Beasley, I think is in custody on other matters (indistinct) (ts 17/6/10, pages 6 ‑ 7).
After a further exchange between the appellant and her Honour about other matters, the following exchange took place:
HER HONOUR: All right, now Mr Beasley, what that means is - if Mr Owen advises you to plead not guilty, but you say to him 'I want to plead guilty', he may have to withdraw from representing you on the basis that he has given you advice and you haven't taken that advice. That's his professional obligation. No doubt he will explain that to you.
So it is up to you how you want to plea. I accepted a plea of guilty on the basis - and I didn't put it to you 'Do you plead guilty to this?' - on the basis that you admitted you swore at the court, and that's why I took a plea of guilty. Without saying to you 'Do you plead guilty to the charge of, 4 June 2010 at Armadale, being in contempt of the Armadale Magistrates Court by swearing at the court, thereby insulting the court under section 15(1)(a)(iii) of the Magistrates Court Act 2004'.
So it is up to you what you want to do.
BEASLEY, MR: I basically want it squashed, but I don't want it carrying on and stuff. But I ‑ ‑ ‑
HER HONOUR: There are a number of options in the way that I deal with it. If you plead not guilty it goes to trial. It will go to another magistrate today, they will listen to the audio recording of what you said to me in the courtroom and that constitutes the charge. Nothing else does in terms of what happened afterwards.
Because if you plead not guilty, all the court will do is listen to the audio to see whether you did swear at me and thereby insulted the court, that's the only issue. In relation to an apology that can only be to the court for sentencing, if you look at section 15.
BEASLEY, MR: Beg your pardon about the apology?
HER HONOUR: Well, you apologised to me and then the court has a number of options under section 15 of the Magistrates Court Act. One of those is to accept the apology and take the matter no further, which is an option that I have got.
But because you were under the influence of whatever you were under the influence on the day, I wanted you to be clear thinking. Also, when people do apologise to the court it is often because the lawyer has told them to apologise and they are not thinking clearly.
I wanted you to be in a better frame of mind, without being under the influence of anything - even though there will still be some residual influence, even today - to be able to fully understand what was going on. The court should never deal with people when they are under the influence. Often the court does, because they don't realise that a person is under the influence.
OWEN, MR: Your Honour, given the way the matter has progressed recently, I would seek leave to withdraw as counsel. I am in a difficult situation now in regards to providing advice. Your Honour, I can indicate to the court that I will provide Mr Beasley with - perhaps a non‑conflicted legal practitioner, and I will try to facilitate that before 2.15, your Honour. But with regards to what occurs now, I seek leave to withdraw as counsel.
HER HONOUR: Mr Beasley.
BEASLEY, MR: Your Honour, I'll squash the - I was under the influence that day.
HER HONOUR: That's not a legal excuse, but it's an explanation.
BEASLEY, MR: I'm not looking for excuses. I just want to take responsibilities for my actions. I carried on silly that day; I was (indistinct) in the cells; I was acting stupid. I'll plead guilty and get it squashed out of the way. I do fully - now that I'm not under the influence, I do apologise again over the situation.
HER HONOUR: I will (indistinct) again. On 4 June 2010 at Armadale, you were in contempt of the Armadale Magistrates Court by swearing at the court thereby insulting the court. This is under section 15(1)(a)(iii) of the act. Now, do you understand, on the day in court that you turned around and swore at me and screamed at me and you were swearing?
BEASLEY, MR: Yes, Miss.
HER HONOUR: I had you stood down. It was very frightening. How do you plead?
BEASLEY, MR: I plead guilty, Miss.
HER HONOUR: You did come back with Ms Kilby at a later time in the afternoon when you had calmed down a little bit, after making a lot of noise in the cells.
BEASLEY, MR: And I did apologise on my own terms, not from her.
HER HONOUR: Yes, well the problem is you were under the influence. That makes it very difficult for the court to assess whether you were actually apologising, other than being told by Ms Kilby to apologise (ts 17/6/10, pages 8 ‑ 10).
Defence counsel sought leave to withdraw on the basis that there was a conflict between himself and his client as to the nature of his instructions. The magistrate then had a further exchange with the appellant, following which she gave reasons for fining him $500 for the offence.
Further evidence on appeal
By consent, the affidavit of the appellant dated 18 January 2011 was admitted into evidence. In the affidavit, the appellant said that on 4 June 2010 he was not thinking straight. He said that he had a mental illness and had been 'drinking a fair bit' before being arrested. He said that he was also stressed because of domestic issues.
In respect to the incident itself, the appellant said that he remembered that the magistrate spoke to him about a lotto ticket. He said that he thought the magistrate had said something like 'remanded in custody' and so he thought that the magistrate was finished with him. He said that he waited in the dock for a little bit and then started to walk back towards the cells. He said that he just had enough of what was going on that day and he wanted to get it over with so that he could clear his mind and think straight again. He recalled that the magistrate called him back to the dock and that she looked 'pretty annoyed' that he had started to walk away. He said he recalled swearing in court. He said that he was confused about the conversation he had with the magistrate and he wished he had not sworn. He was not feeling well as he had not been taking his medication and had been drinking. He then spent about two weeks in custody.
On 17 June 2010 he spoke to another duty lawyer from the Aboriginal Legal Service in the cells at the Perth Magistrates Court. He was advised that he could plead not guilty to the charge of contempt of court and that he, counsel, would speak for the appellant in court. The appellant said that he instructed his counsel to plead not guilty to the contempt of court charge.
In court, counsel told the magistrate that the appellant was pleading not guilty. The appellant noted that the magistrate did not look very happy about him pleading not guilty to the charge. He said that he was not feeling 'very good' about what was happening. He recalled going back to the cells and speaking to his counsel again. He said that he told his counsel that he was 'not feeling good about what was going on'. He was advised that he could still plead not guilty and he gave those instructions to his counsel.
He said that when they returned to court and the magistrate spoke directly to him, he was 'pretty shaky and nervous'. He said that he felt like he was on his own and that his lawyer could not help him. He was not sure what he was going to do. The appellant deposed that he felt 'pressured' and 'under pressure' when the magistrate spoke to him personally. He felt that he just had to shut up and do what he was told because he was on his own and his lawyer was not helping him.
The appellant said that he did not remember the exact conversation he had with the magistrate after she told his counsel to be quiet. He recalled that the magistrate told him that he could not win the case if he pleaded not guilty to the charge. He said that he did not care at that point because he knew that 'trouble' was coming and he just wanted to do as the magistrate said to show her that he did not want any more trouble.
The appellant remembered pleading guilty to the contempt of court charge. He told her Honour that he was coming off drugs and alcohol and was not on his medication, hoping that she would 'go easy' on him.
By consent, the affidavit of Claire Amy Kilby made 18 November 2010 was also admitted into evidence on appeal. Ms Kilby was the appellant's counsel on 4 June 2010. Ms Kilby confirmed that after the magistrate told the appellant that he was remanded in custody, the appellant proceeded to make his way towards the door that led into the custody area. She deposed that it appeared as if the appellant was of the view that his appearance was over.
Ms Kilby said that the exchange between the appellant and her Honour then occurred very quickly. Ms Kilby said that she did not recall the appellant raising his voice and he did not appear agitated. It was not until her Honour referred to wanting to win lotto that the appellant swore at the magistrate. At that point, Ms Kilby described the appellant's voice as raised and he appeared confused and agitated. She would not have described the appellant as screaming. She deposed that guards were not needed to restrain the appellant or intervene in the proceedings.
Lastly, the appellant tendered on appeal the affidavit of Robert Francis Owen, his counsel on 17 June 2010. That affidavit confirmed what the appellant said in his affidavit was the advice he received and the instructions he gave. Mr Owen said that the appellant 'appeared uncomfortable' and 'a little agitated' during the first mention on 17 June. After being told to be quiet by the magistrate during the second mention, Mr Owen deposed that he felt 'incapable of assisting' the appellant. He said that the appellant 'looked distressed and under pressure' about making a decision as to his plea.
Also by consent, the intervener tendered the affidavit of Scott Robert Ivey sworn 23 December 2010. That affidavit attached a CD containing the audio of the appellant's appearances on 4 June 2010 and 17 June 2010.
I have listened to the CD. On 4 June 2010 the appellant's voice rises from the point he asks the magistrate what she wants. When he swears his voice is loud and aggressive. There is no sound of scuffling in court between the appellant and security guards.
Resolution of the appeal
The intervener submits that in view of the evidence in the appellant's affidavit as to his state of mind when he entered his plea of guilty, it is open for me to conclude that the appellant's guilty plea was not a free and voluntary plea.
In my opinion, this is an appropriate submission. Having regard to the course of the proceedings as a whole as well as to the appellant's subsequent evidence, I am of the opinion that leave to appeal ought to be granted on grounds 1 and 3 and the appeal allowed on that basis. That being the case, it is unnecessary for me to determine ground 2 and the allegations of bias.
In Hogue v The State of Western Australia [2005] WASCA 102, Wheeler JA said:
It is no easy matter for an appellant to persuade a Court to set aside a conviction based on a plea of guilty. The appellant, in such a case, must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20] per Steytler J. The three well recognised circumstances (albeit not exhaustive) that will amount to a miscarriage of justice and result in the plea of guilty being set aside are: where the appellant did not understand the nature of the charge, or did not intend to admit guilt; where upon the admitted facts, the appellant could not in law have been guilty of the offence; and where the guilty plea has been obtained by improper inducement, fraud or intimidation, and the like: Borsa v The Queen at [20], Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J, and cases there cited. The appellant appears to rely upon the latter two circumstances [22].
The circumstances of this case do not fit neatly within one of the three 'well recognised circumstances' referred to by Wheeler JA. There are elements of two of those circumstances, being a lack of understanding of the nature of the charge and a lack of intention to admit guilt, in this case. Also, there are other circumstances which mean that taking all matters into account there has been a miscarriage of justice which warrants setting aside the appellant's conviction and his plea of guilty.
A consideration of those circumstances starts with the appellant's position in court on 17 June 2010 when he was represented by counsel and entered his plea of not guilty. It is clear to me, both from the magistrate's words and the tone of voice that she used to the appellant's counsel, that she was not happy that the appellant entered a plea of not guilty, thought that the plea was unjustified and required the appellant's counsel and the appellant himself to give her an explanation for the plea.
Her Honour's manner of questioning the appellant's counsel and the appellant himself about the reason for the plea was inappropriate. She was not entitled to demand, as opposed to ask, counsel to advise her of the basis of the plea. If, after being asked to do so by a judicial officer, an accused's counsel declines to advise the nature of a defence, except in extraordinary circumstances where the judicial officer has a sound basis for believing that the practitioner is not presenting the instructions of the accused, that officer should not go behind counsel's advice of his or her instructions and request or demand the information from the accused, personally. Whatever the magistrate's opinion about the strength of the evidence against the appellant, she did not have the grounds to deprive him of his right to counsel or his right to silence by demanding information about his defence from him, directly.
Given the appellant's mental health issues and the magistrate's comments to him on 4 June 2010 which presupposed his guilt of the charge of contempt, it is not surprising that the appellant then felt under pressure and, I accept, considerable pressure, to change his plea to guilty. I accept that he did so, in part, to please the magistrate and to stop her questioning rather than because he intended to admit his guilt. In this way the magistrate's conduct had a tendency to deprive the appellant of his right to plead not guilty and to have a trial.
Further, I am not satisfied that the appellant understood the nature of the charge to which he pleaded guilty given that the magistrate told him, in effect, that there was no basis for a not guilty plea but the appellant's counsel had advised him that there was.
The combination of these factors meant that there was a miscarriage of justice in this case.
The appellant submits that he could not in law have been guilty of the offence because his comments did not wilfully insult the court. The Magistrates Court Act s 15(1)(iii) states that a person is guilty of a contempt of the Magistrates Court if the person, while the court is sitting, wilfully insults a magistrate.
I would not go so far as to hold that the appellant could not have been guilty of this offence. A consideration of that issue would depend not only on what the appellant said to the magistrate, but the way he said it, his demeanour when he said it, and the trier of facts' determination of the context in which the appellant spoke to and behaved towards the magistrate on 4 June 2010. I have not heard the charge and am not in a position to make findings about all those factors. It is the other matters to which I have referred which, in my view, justify a determination that the appeal should be allowed on grounds 1 and 3 and on those bases there has been a miscarriage of justice.
Result of the appeal
The usual course where an appeal against conviction is allowed on the basis of a miscarriage of justice but the appeal court is not satisfied that the appellant could not in law have been guilty of the offence charged, is to remit the matter for hearing to the trial court. In my opinion, this is not the appropriate course in this case. Rather, this is an appropriate case in which to set aside the conviction and enter an acquittal. The reasons for this are that it is clear from the appellant's affidavit and from the transcript of proceedings that he was sorry for his outburst. His personal circumstances and the flippant comment from the magistrate about 'lotto' do not justify the appellant's outburst but they help to explain why the appellant said what he said. The appellant purged his contempt, if it was contempt, immediately after it by apologising to the magistrate.
The appellant decided to plead not guilty to the charge, as he was entitled to do. As a result of the magistrate's conduct he was effectively denied his right to be represented by counsel, plead not guilty and to have a hearing of the charge. Having purged his contempt, if it was contempt, and spending time in custody on the charge, it is not in the interests of justice that the appellant should have to undergo a trial of the charge which would be likely to take place at least 12 months after the incident.
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