Davenport v Vose
[2003] WASCA 44
•18 MARCH 2003
DAVENPORT -v- VOSE [2003] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 44 | |
| Case No: | SJA:1147/2001 | 17 JANUARY 2003 | |
| Coram: | PULLIN J | 18/03/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Decision varied Penalty reduced | ||
| B | |||
| PDF Version |
| Parties: | VERNON BRUCE DAVENPORT STEPHEN NOEL VOSE |
Catchwords: | Courts and Judges Contempt of Court |
Legislation: | Children's Court of Western Australia Act 1988, s 29(3), s 29(4) Justices Act 1902, s 199 Sentencing Act 1995, s 24, s 25 Young Offenders Act 1994, s 28, s 31, s 32(2), s 37 |
Case References: | Coward v Stapleton (1953) 90 CLR 573 Gliosca v Ninyett (1992) 10 WAR 562 Lewis v Ogden (1984) 153 CLR 682 Macgroarty v Clauson (1989) 167 CLR 251 Morriss v Withers [1954] VLR 100 R v Thomas Castro; Skipworth's Case (1873) 9 LRQB 219 Stuart v Brown (1996) 17 WAR 525 Wilde v The Queen (1988) 164 CLR 365 Caruana v Skinner, unreported; SCt of WA; Library No 950356; 26 July 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
STEPHEN NOEL VOSE
Respondent
Catchwords:
Courts and Judges - Contempt of Court
Legislation:
Children's Court of Western Australia Act 1988, s 29(3), s 29(4)
Justices Act 1902, s 199
Sentencing Act 1995, s 24, s 25
Young Offenders Act 1994, s 28, s 31, s 32(2), s 37
Result:
Appeal allowed in part
Decision varied
Penalty reduced
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Amicus Curiae : Mr A J Sefton for Attorney-General
Solicitors:
Appellant : In person
Respondent : No appearance
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Coward v Stapleton (1953) 90 CLR 573
Gliosca v Ninyett (1992) 10 WAR 562
Lewis v Ogden (1984) 153 CLR 682
Macgroarty v Clauson (1989) 167 CLR 251
Morriss v Withers [1954] VLR 100
R v Thomas Castro; Skipworth's Case (1873) 9 LRQB 219
Stuart v Brown (1996) 17 WAR 525
Wilde v The Queen (1988) 164 CLR 365
Case(s) also cited:
Caruana v Skinner, unreported; SCt of WA; Library No 950356; 26 July 1995
(Page 3)
1 PULLIN J: The appellant appeals against the decision of Mr Vose SM, dated 29 May 2001, whereby the learned Magistrate found that he had been guilty of contempt and fined him $500.
2 The grounds of the appeal are that:
(a) the learned Magistrate failed to formulate with precision, the behaviour which was said to constitute the contempt, and that
(b) the discretion of the Magistrate miscarried in imposing any kind of penalty.
3 The circumstances leading up to this matter were as follows. On 26 December 2000, at Kingsley, a juvenile drove a vehicle without due care and attention and was involved in an accident. The appellant was the other person involved. He was riding a motorcycle. The juvenile's vehicle collided with the appellant's motorcycle. The appellant was knocked off and injured. The juvenile failed to stop after the accident occurred and failed to render the appellant any assistance.
4 On 13 February 2001, the juvenile appeared in the Children's Court before Mr Vose SM and pleaded guilty to careless driving, failing to stop after the accident, and failing to render all such assistance as may have been necessary or practicable under the circumstances.
5 The Magistrate referred the matter to the Juvenile Justice Team. Juvenile Justice Teams are established under the provisions of Div 3 Pt 5 of the Young Offenders Act 1994. Section 37 of that Act provides that a Juvenile Justice Team is to include a co-ordinator (as defined in the Act) and a member of the police force appointed by the co-ordinator on nomination of the Commissioner of Police. The team may include such other persons as the co-ordinator appoints. Section 28 of the Young Offenders Act 1994 authorises the Children's Court to refer matters for consideration by a Juvenile Justice Team. Section 31 of the Young Offenders Act 1994 provides that unless it is impracticable to do so, the Juvenile Justice Team dealing with a young person for an offence, is to give any person it considers to have primarily suffered as a consequence of the offence (the victim) the opportunity to make submissions or otherwise participate in the proceedings as it sees fit. Section 32(2) provides that if the victim is present at the proceedings before the Juvenile Justice Team, a matter can only be disposed of if the victim agrees to the matter being disposed of by the team and agrees with the way the team proposes disposing of the matter. Section 32(2) provides, in effect, that if
(Page 4)
- the victim does not agree to have the matter dealt with by the Juvenile Justice Team or will not agree to terms specified by the team, then the team may send the matter back to the Court. It will become apparent from the transcript referred to below that the appellant attended before the Juvenile Justice Team, as he was permitted to do, and that he was not in agreement with the terms proposed by the team and that the team sent the matter back to the Court.
6 On 29 May 2001, the juvenile re-appeared before the Magistrate. The appellant arrived at the Court before the hearing, contacted Court staff, told them that he had a written victim impact statement, and understood from such contact that he would be able to present the statement to the Magistrate. He waited for a long time before the case was called on before the Magistrate. The proceedings opened with the Magistrate saying that he had received a fairly long report from the Juvenile Justice Team. The Magistrate said "it seems like the process was jiggered up by an unreasonable complainant". Counsel appearing for the juvenile also commented on the conduct of the appellant saying "I understand that what he wanted to do was pretty outrageous". A copy of the report from the Juvenile Justice Team is not before me, and there is no information explaining what his Worship meant when he said that the process was "jiggered up" by the appellant. The conduct referred to by counsel for the juvenile seems to have been a reference to a request by the appellant that the juvenile do 100 hours' community work. The Magistrate then indicated that he planned to send the matter back again to be dealt with before the Juvenile Justice Team. The appellant, who had attended the hearing before the Juvenile Justice Team, and had taken the trouble to appear at this new hearing, felt that, as the victim, he was being ignored and unjustly criticised. He considered that he had done nothing to "jigger up" that process before the Juvenile Justice Team.
7 At that point, Mr Davenport sought to intervene. For completeness, I set out the transcript of all of the proceedings:
"HIS WORSHIP: Now, I've read the report, a fairly long report from the Juvenile Justice Team. It seems like the process was jiggered up by an unreasonable complainant or - -
MS CRISP: Sounds like that to me.
HIS WORSHIP: - - victim and the report writer essentially asks me to refer it back to the team so that they can now deal with it on the basis without the victim.
(Page 5)
- MS CRISP: Complainant. Yes, I understand that what he wanted to do was pretty outrageous.
HIS WORSHIP: Yes. Sergeant, no problems from your point of view in relation to that?
PROSECUTOR: No, sir.
HIS WORSHIP: Okay. You're referred to the Juvenile Justice Team. You already know what the action plan is going to be. That's been agreed, I think, so it just has to be formally sent back to them so that they can reconvene a new team meeting without the person who was wanting you to do 100 hours of community work. So - -
MR DAVENPORT: Excuse me, sir, I'm the victim. I would like to have a say in - -
HIS WORSHIP: No, you can't, don't want to hear - -
MR DAVENPORT: I can't?
HIS WORSHIP: No, you can't, not at this stage so - -
MR DAVENPORT: It's a jackass. It's a complete and total joke.
HIS WORSHIP: Yes. Well, come back here. If you want to carry on like that, you'll find yourself going down the cells.
MR DAVENPORT: Well, somebody should.
HIS WORSHIP: No. You - - I'm - - you behave yourself.
MR DAVENPORT: Do I get to have my, my say? Can I have my say?
HIS WORSHIP: No, you can't.
MR DAVENPORT: I can't have my say?
HIS WORSHIP: No, but you can behave yourself, otherwise you'll go down the cells.
MR DAVENPORT: Well - -
(Page 6)
- HIS WORSHIP: Go now, please go.
MR DAVENPORT: Well, the system deserves you.
HIS WORSHIP: Just go.
MR DAVENPORT: Okay. You're a jackass.
HIS WORSHIP: Oh, call him back. I'm not having that.
MR DAVENPORT: Go for your life.
HIS WORSHIP: Right. Now, I'm going to ask whether or not you're going to apologise for - -
MR DAVENPORT: No.
HIS WORSHIP: - - your behaviour.
MR DAVENPORT: No, absolutely not.
HIS WORSHIP: You're not?
MR DAVENPORT: You apologise for yours, I'll apologise for mine. It's a fair deal. Right, okay.
[HIS WORSHIP]: You'll be charged with contempt. If you go into the cells please?
MR DAVENPORT: You deserve the contempt you get. You deserve more than you get.
HIS WORSHIP: Right. You're referred to the Juvenile Justice Team." (This latter comment was directed to the juvenile).
8 At that point, the transcript comes to an end. However, it recommences on the same day. I understand that what happened was that the appellant was arrested, placed in the holding cell, and then brought back before his Worship later in the day. The following exchange then took place:
"HIS WORSHIP: Right. Just stand there, thanks. Now, can you tell me your full name, please?
MR DAVENPORT: Vernon Bruce Davenport.
HIS WORSHIP: What's your date of birth?
(Page 7)
- MR DAVENPORT: 17th of the 9th 58.
HIS WORSHIP: All right. Now, Mr Davenport, you have in my view committed a contempt of court with the insulting words that you said and your behaviour. I need to give you the opportunity to show cause why you should not be convicted of that contempt and dealt with according to the Children's Court Act that covers this provision.
MR DAVENPORT: I treated you with contempt but as far as I'm concerned I feel you deserve it. Okay. I'm not removing myself from that.
HIS WORSHIP: Okay.
MR DAVENPORT: What you did was wrong. What I told you was as a result of my passion for the feeling that I have about the fact that what you did was wrong. You'll read about it in the newspaper. If I have to pay a fine go your hardest. I don't give a damn.
HIS WORSHIP: Well, I should give you the opportunity at this point to get legal advice if you want it. If you want to get legal advice I can remand this, set bail. If you wish me to deal with it now I will.
MR DAVENPORT: Deal with it.
HIS WORSHIP: Right. That being the case - - I should point out to you that there is a duty lawyer in the back of the court who could give you advice if you need it.
MR DAVENPORT: If you treat me the way that you treated the person that knocked me off my motorbike then, hell, I should go and buy a Lotto ticket.
HIS WORSHIP: Do you want legal advice or not?
MR DAVENPORT: Just deal with me so I can get out of your face.
HIS WORSHIP: Right. You are convicted of contempt. Do you have any explanation further than what you've said as to why?
(Page 8)
- MR DAVENPORT: It would make no difference to you anyway. Just continue.
HIS WORSHIP: You then will be fined $500.
MR DAVENPORT: Done. Thank you. That's it. It's the beginning, not the end. Deal with me quickly before you have to fine me more.
HIS WORSHIP: Okay. Done."
9 It is apparent from reading the transcript that the comments of the learned Magistrate and the comments of counsel for the juvenile at the opening of proceedings, led the appellant to feel that he was being accused of unreasonable conduct in relation to the proceedings before the Juvenile Justice Team. The exchange between the Magistrate and counsel led the appellant to conclude that he was regarded by the Court as unreasonably thwarting the process before the Juvenile Justice Team. The appellant says that this is how he did feel and that he felt (justifiably) upset.
10 The appellant, as victim, was entitled to disagree with the disposal of the matter before the Juvenile Justice Team or to refuse to accept the way in which it was to be disposed of. The Young Offenders Act says so. It can be gathered that the appellant was prepared to allow the team to dispose of the matter if the juvenile did 100 hours of community service. The appellant, waiting in Court to see how the case was disposed of, having already refused to accept the way it was to be disposed of by the team, began to understand that he would be involved in further inconvenience in a proposed second hearing before the Juvenile Justice Team. There was even a suggestion that he would be excluded from any involvement in the second hearing before the Juvenile Justice Team. I do not understand how a victim could be excluded from the hearing if he attended and wished to participate.
11 No submissions were made to me about whether the appellant had a right to present a victim impact statement to the Magistrate or not. I note, however, that s 24 and s 25 of the Sentencing Act 1995 allow a victim to give to the Court a written or oral statement giving particulars of injury, loss or damage suffered as a result of the offence and the effect of the commission of the offence. The appellant identified himself as the victim of the offence and sought leave to address the Magistrate. On the face of the transcript, he did this clearly and without using any words which could
(Page 9)
- have caused offence. The appellant said, and I accept, that there was nothing in manner or gesture which was disrespectful. He said:
"Excuse me, sir, I am the victim. I would like to have a say in - -."
13 The appellant, who until this point could not be criticised for his conduct, now stepped beyond reasonable bounds. After being told to "go" again, the appellant said "Okay. You're a jackass". This was a wilful insult to the Court. The system will very quickly break down if unsuccessful litigants, or persons unhappy with the outcome of proceedings, resort to abuse of the judicial officer involved. In my opinion, the insult did amount to contempt within the meaning of s 29 of the Children's Court of Western Australia Act 1988.
14 The point of the appellant's appeal, however, is that the Magistrate did not, in the formal complaint or charge against him, identify with sufficient precision, the behaviour which was said to constitute the contempt.
15 In the appeal book there appears a written complaint, which I assume was prepared by, or at, the direction of the Magistrate. It reads:-
"The complaint of Stephen Vose of Joondalup ... Magistrate ... made at Joondalup this 29th day of May 2001 ... who says that on the 29th day of May 2001 at Joondalup ... Vernon Bruce Davenport ... hereby called upon to show cause why you should not be summarily convicted of a contempt of court."
(Page 10)
16 The written complaint was not read to the appellant, and he did not know it existed. What the Magistrate said was as follows:-
"... Mr Davenport, you have in my view committed a contempt of court with the insulting words that you said and your behaviour. I need to give you the opportunity to show cause why you should not be convicted of that contempt and dealt with according to the Children's Court Act that covers this provision."
17 That is the charge the appellant was called upon to answer.
18 The provision in the Children's Court of Western Australia Act 1988 to which his Worship referred, was s 29(3), which reads:-
"A person who wilfully insults a Court or a Judge, magistrate or member of the Court, wilfully interrupts the proceedings of the Court, or who hinders, obstructs, threatens or assaults any officer, party or witness in attendance before, or going to or returning from, the Court, is guilty of contempt of court".
19 Section 29(4) states that a person who is guilty of contempt of court under the above provision, may be summarily convicted by the court.
20 The word "wilfully" means intentionally or deliberately: Lewis v Ogden (1984) 153 CLR 682; Gliosca v Ninyett (1992) 10 WAR 562 at 567.
21 Where a person is charged with the statutory offence of contempt of court, the charge must, in the absence of clear legislative intent to the contrary, identify, expressly or by necessary implication, the particular offence with which the person is charged. As a matter of natural justice, the charge should specify the nature of the contempt. If the contempt consists of a wilful insult to the court, the alleged insult should be identified: Macgroarty v Clauson (1989) 167 CLR 251 at 255-257; Lewis v Ogden (supra); Gliosca v Ninyett (supra); Coward v Stapleton (1953) 90 CLR 573 at 580; Morriss v Withers [1954] VLR 100 at 103-104. In Coward v Stapleton (supra), the Court stated at 579-580 that:
"… it is a well recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him … The gist of the accusation must be made clear
(Page 11)
- to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations."
22 In Macgroarty v Clauson (supra), the Full Court of the High Court referred to the passage I have quoted above from Coward v Stapleton and then said at page 255-256:
"When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the 'gist of the accusation' is made clear to the person charged … Where, however, the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge …"
23 In this case, the learned Magistrate said that he formed the view that the appellant had committed a contempt of court "with the insulting words that you said and your behaviour". I am satisfied that the appellant well understood what the charge concerning insulting words was concerned with. It could only be a reference to his description of the Magistrate as a "jackass". This part of the charge therefore identified the particular statutory offence which the accused faced. However, there is no way of knowing what "behaviour" the learned Magistrate was adverting to. It might have been, for example, a reference to a gesture or movement the Magistrate thought the appellant made. A gesture or movement may constitute contempt if it is insulting or if it threatens or amounts to assault. The appellant said there was nothing in any gesture or movement which could be complained about. The respondent does not know to what it refers. The fact that it is unclear and a matter of speculation reveals the error. In my opinion, the Magistrate fell into error in failing to identify with precision, or at all, the "behaviour" constituting the alleged contempt.
24 The Magistrate's failure to identify what he regarded as the contemptuous behaviour means that the first ground of appeal has been made out in part.
(Page 12)
25 Counsel for the Attorney-General, appearing as amicus curiae, submitted that nevertheless the appeal should be dismissed because there was no substantial miscarriage of justice. Section 199(1)(b) of the Justices Act 1902 authorises the court to dismiss an appeal if there has been no substantial miscarriage of justice. I should mention that s 199 confers wide powers on the Court, including the power to vary the decision of the Magistrate or to substitute a decision that ought to have been made. Counsel submitted that the conduct of the appellant in calling the Magistrate a "jackass" amounted to a wilful insult to the Court, and therefore a contempt of court, even though the "behaviour" complained about was not properly identified.
26 Where a charge is defective because of lack of precision the error may go to the root of the proceedings: Wilde v The Queen (1988) 164 CLR 365 at 373. If the charge only referred to the appellant's behaviour, then the appeal would have entirely succeeded.
27 The oral charge did, however, precisely allege that the appellant committed a contempt of court "with the insulting words you said". As I have already indicated, it is plain that this was a complaint about the expression "you're a jackass". The appellant knew what this referred to, and he answered this by saying that "What I told you" was as a result of his "passion for the feeling that I have about the fact that what you did was wrong".
28 The charge was concerned with two matters. The appellant has succeeded in his argument that the charge was defective in relation to the complaint about his "behaviour" but has not succeeded in showing any error concerning the complaint about "insulting words".
29 In my view, the appropriate method of dealing with this situation is to vary the decision of the Magistrate so that the conviction of contempt remains insofar as it relates to the insulting words used but the decision imposing a fine of $500 should be quashed. That penalty was set in relation to punishment for the insulting words and the unspecified behaviour, and so it cannot stand. A fine of $100 should be imposed. I set the fine at this level because I consider this to be the correct penalty in the circumstances for the insulting words used by the appellant, taking into account the circumstances which led the appellant to make the comment he did, and taking into account the fact that the appellant was arrested and held in custody on 29 May 2001 before being dealt with.
(Page 13)
30 Finally, I should conclude by referring to sentiments which have been expressed in many cases. The summary power to deal with a person for contempt is draconian in nature. The power should be used sparingly and in serious cases. The dignity of an individual judicial officer is of very subordinate importance compared with the dignity of the Court. Judicial officers who have been the subject of insulting remarks should give careful consideration to whether it is worthwhile to take any steps: Stuart v Brown (1996) 17 WAR 525; Lewis v Ogden (supra); and R v Thomas Castro; Skipworth's Case (1873) 9 LRQB 219.
31 The formal orders I make are:
(a) Appeal allowed in part.
(b) The decision of the Magistrate imposing a fine of $500 is quashed.
(c) In lieu thereof, a fine of $100 is imposed.
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