Howard v Attorney-General of the State of Queensland

Case [2022] QDC 232

DISTRICT COURT OF QUEENSLAND

CITATION:

Howard v Attorney-General of the State of Queensland [2022] QDC 232

PARTIES:

JACK ANDREW HOWARD

(appellant)

v

ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND

(respondent)
FILE NO:

BD1210/22

DIVISION:

Criminal

PROCEEDING:

Section 222 appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

14 October 2022

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

30 September 2022

JUDGE:

Burnett AM, DCJ

ORDER:

1.   Appeal allowed.

2.   Find the appellant guilty of contempt.

3.   Sentence appellant to no further punishment, no conviction recorded.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – CONTEMPT – POWER OF COURT TO PUNISH FOR CONTEMPT – where the appellant called the presiding Magistrate a ‘maggot’ – where a bench charge sheet for a charge of contempt was drawn up under the hand of the presiding Magistrate – where the appellant apologised to the Magistrate following a contempt – where the Magistrate did not specify whether the appellant was charged with contempt under statute or common law – where the presiding Magistrate failed to give sufficient reasons in making a conviction for contempt

LEGISLATION:

Justices Act 1886
Magistrates Court Act 1921
Penalties and Sentences Act 1992
Uniform Civil Procedure Rules Act
Youth Justice Act 1992

CASES:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Cutter v The Queen (1997) 71 ALJR 638
Dow v Attorney General [1980] Qd R 58
Forrest v Commissioner of Police [2017] QCA 132
Joshua v Thomson (1994) 119 FLR 296
Kural v The Queen (1987) 162 CLR 502
Lewis v Ogden (1984) 153 CLR 682
R v Griffin (1989) 88 Cr App R 63
R v Reid [2007] 1 Qd R 64
COUNSEL:

F Lane for the appellant

S Munasinghe for the respondent
SOLICITORS:

Legal Aid Queensland for the appellant

Crown Law for the respondent

Introduction

  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. The grounds of appeal addressed in the amended notice of appeal are:

  3. The learned Magistrate erred in convicting the appellant of contempt because:

    (a)the comment was not made “wilfully”;

    (b)cause was shown purging the contempt.

  4. The learned Magistrate erred in failing to provide reasons for convicting the appellant of contempt.

  5. The sentence imposed was manifestly excessive given the recording of a conviction.

    The background

  6. 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”.

  7. I note from the transcript that the appellant made numerous offensive remarks…

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Details
AGLC
Howard v Attorney-General of the State of Queensland [2022] QDC 232
Case
[2022] QDC 232
Decision Date

CaseChat Overview and Summary

In the case of Howard v Attorney-General of the State of Queensland, the appellant, Jack Andrew Howard, challenged the conviction and sentence for contempt of court imposed upon him by a Magistrate. The incident occurred when the appellant, during a bail application hearing, called the presiding Magistrate a'maggot', which was deemed to be a contemptuous act. The Magistrate proceeded to charge the appellant with contempt, record a conviction, and impose a sentence, albeit without specifying whether the contempt was under statute or common law.

The primary legal issues the court had to address were whether the charge was adequately particularised and whether the appellant's apology could be considered a plea of guilty or an admission to the facts of the charge. Specifically, the court needed to determine whether the charge sufficiently included the essential element of 'wilful' insult as required by statute, and whether the appellant's apology could be construed as an unequivocal plea or admission to the charge.

The court found that the charge was defective as it omitted the crucial element that the insult was 'wilful'. This omission was significant, particularly given the appellant's solicitor's awareness of this requirement and the submissions made requesting a hearing on this point. The court concluded that the charge was fundamentally defective and that the appellant's apology did not necessarily constitute an unequivocal plea or admission to the charge because the critical element of 'wilful' insult was not indicated prior to the appellant being called upon. Consequently, the court held that the appellant was entitled to appeal the finding of guilt.

The appeal was allowed, and the appellant was found guilty of contempt. However, no further punishment was imposed, and no conviction was recorded. The court's decision underscored the importance of particularising charges accurately to ensure they meet the statutory requirements and that any plea or admission is unequivocal.

Orders

Orders of the court

1. Appeal allowed.

2. Find the appellant guilty of contempt.

3. Sentence appellant to no further punishment, no conviction recorded.

Background

Background to the litigation

The sentence imposed was manifestly excessive given the recording of a conviction.The background 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”. 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”. 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. 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.” 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’. 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 2nd 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That approach informs my approach to this appeal.Reasons for decision 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. 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. 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. 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][1]In that sense it should be understood ‘conviction’ means finding of guilt, the matter of recording a ‘conviction’ being governed by s 12 the Penalties and Sentences Act 1992. 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][2]That case was addressed an entirely different factual situation but none the less highlights the difficulty that arises when a charge is not adequately particularised, not to mention being fundamentally defective as was the case here. 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. [3]See Joshua v Thomson (1994) 119 FLR 296.

Ratio Decidendi

Legal Principle Established

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