Jakaj v Kinnane
[2019] ACTSC 71
•22 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jakaj v Kinnane |
Citation: | [2019] ACTSC 71 |
Hearing Date: | 19 March 2019 |
DecisionDate: | 22 March 2019 |
Before: | McWilliam AsJ |
Decision: | [93] |
Catchwords: | JUDICIAL REVIEW – Application for review of a decision of a magistrate – whether magistrate had jurisdiction to conduct hearing – whether oath of office sworn by magistrate lawful – whether lawful procedure for passing legislation had been followed – whether denial of procedural fairness |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22 Australian Road Rules rr 11, 330 Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) reg 5 |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Condon v Pompano Pty Ltd (2013) 252 CLR 38 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
Parties: | Eduard Jakaj (Plaintiff) Magistrates Court of the Australian Capital Territory (First Defendant) Damien Kinnane (Second Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Mr J Walker (Second Defendant) |
| Solicitors Director of Public Prosecutions (Second Defendant) | |
File Number: | SC 412 of 2018 |
McWilliam AsJ:
Before the Court is an application for judicial review of orders made in the Magistrates Court on 10 August 2018. The plaintiff, who was self-represented, had been charged (CC 9009 of 2017) with the offence of using a mobile phone on 12 August 2017 while driving a motor vehicle, contrary to r 300 of the Australian Road Rules. The court below convicted the plaintiff and ordered that he pay a fine of $416, court costs of $80 and the victim services levy of $60. Two other charges brought against the plaintiff were dismissed on the same day.
The plaintiff had a right of appeal under s 208(1)(c) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). However, he has instead sought judicial review of the magistrate’s decision. The arguments he seeks to raise are purely questions of law and jurisdiction, therefore the differences between an application for judicial review and an appeal are immaterial for the present application.
The first defendant is the Magistrates Court of the Australian Capital Territory (Territory) and has filed a submitting appearance.
The second defendant is the police informant for the charge that was successfully prosecuted. He submits the entire application is frivolous or vexatious and should be dismissed.
Grounds of Judicial Review
The Originating Application filed on 7 September 2018 contained 22 paragraphs setting out various complaints made by the plaintiff. However, during the hearing, the plaintiff clarified his arguments, and they have been refined to ten issues. They are as follows:
a.The oath sworn by magistrates in the Magistrates Court (contained in Schedule 1 to the Magistrates Court Act) does not contain any reference to swearing allegiance to her Majesty, Queen Elizabeth II and therefore does not comply with clause 5 of the Commonwealth of Australia Constitution Act (Imp)(Constitution). As a result, the magistrate in the court below did not have jurisdiction to proceed with the hearing (Issue 1).
b.The magistrate denied the plaintiff procedural fairness. The plaintiff had sought discovery from the prosecution on 14 August 2017 and had received no response. The magistrate refused to allow the plaintiff to agitate for the documentation sought on discovery (Issue 2).
c.The magistrate erred in law in applying the Australian Road Rules, made under the Road Traffic Act 1961 (Cth) to him. First, the Australian Road Rules have not been properly passed in the Territory in accordance with the Constitution. Secondly, section 117 of the Constitution binds the Territory. Thirdly, as the relevant legislation in the Territory does not apply the Australian Road Rules to ‘subjects of the Queen’, such rules are not applicable to the plaintiff, who was a holder of a Victorian driver’s licence, driving in the Territory (Issue 3).
d.The magistrate denied the plaintiff procedural fairness through the manner in which the hearing was conducted. The magistrate failed to consider all of the paperwork that the plaintiff wished to put before the court below, and further failed to give the plaintiff the opportunity to agitate procedural arguments that he had sought to raise earlier through either filing documents with the registry which were rejected or through interlocutory applications before the registrar which were dismissed (Issue 4).
e.The prosecution was not a valid prosecution as it should have been brought in the name of the Crown. The police informant was not the correct individual and the identity of the person prosecuting the charge kept changing, which the plaintiff feels was unfair (Issue 5).
f.The magistrate acted in bad faith by intentionally preventing the plaintiff from pursuing his legal arguments in the court below and in proceeding to deal with the merit of the hearing before determining the jurisdictional questions the plaintiff had raised (Issue 6).
g.The magistrate erred in law by entering a not guilty plea on behalf of the plaintiff when he indicated that he was unable to plead due to the jurisdictional questions he had raised (Issue 7).
h.The plaintiff was subject to duress by the hearing proceeding on a substantive basis when the jurisdiction of the court below had not been established (Issue 8).
i.The plaintiff seeks the return or destruction of any DNA samples that were unlawfully taken from him during the time he was in custody after being pulled over by the police for driving with a mobile phone, a period of 9 hours (Issue 9).
j.The magistrate failed to give any reasons or sufficient reasons for convicting the plaintiff and for the sentence imposed (Issue 10).
Each issue will be considered in turn.
Evidence before the Court on review
The plaintiff relied upon two affidavits sworn by him on 28 September 2018 and 17 October 2018. He also handed up a copy of a letter sent by the ACT Director of Public Prosecutions on 26 October 2017, which referred to the person prosecuting as ‘Police’. The first affidavit contains copies of all the material that the plaintiff would have put before the court below had he been given the opportunity to do so, as well as transcripts of earlier hearings in the Magistrates Court. The second affidavit contains a procedural history of the matter and exhibits the transcript of the hearing in the court below.
The plaintiff believes that constitutional matters arise from the grounds he has raised. He has issued notices pursuant to s 78B of the Judiciary Act 1903 (Cth), which were before the Court on judicial review. No Attorney-General has intervened or otherwise sought to be heard.
In addition, the parties each filed written submissions. The plaintiff’s two written submissions filed 19 November 2018 and 6 February 2019 collectively ran to 70 pages. The second defendant provided submissions on 14 December 2018. It is inconvenient and unnecessary to summarise the parties’ written arguments here, however the submissions have been read and they broadly support the arguments made orally by the parties during the hearing. The submissions have been incorporated or addressed in the consideration of the arguments below.
Issue 1 – the oath of office sworn in the Magistrates Court
10. Section 10P of the Magistrates Court Act governs the oath of office to be sworn or an affirmation made. It is in the following terms:
Oath etc of office
(1) A person appointed as the Chief Magistrate, a magistrate or special magistrate must not exercise the functions given to a magistrate under any territory law unless the person has sworn an oath or made an affirmation in accordance with the form in schedule 1.
(2) The oath must be sworn or affirmation made before the Chief Justice.
11. Schedule 1 of the Magistrates Court Act contains the relevant oath or affirmation:
Oath
I, [ name ], do swear that I will well and truly serve in the office of
and that I will do right to all manner of people according to law, without fear or favour, affection or ill will. So help me God!Affirmation
I, [ name ], do solemnly and sincerely affirm and declare that I will well and truly serve in the office of and that I will do right to all manner of people, according to law, without fear or favour, affection or ill will.
12. The plaintiff takes issue with the fact that the oath/affirmation in the Magistrates Court does not refer to bearing allegiance to Queen Elizabeth II. The plaintiff submitted that this was inconsistent with the requirements of the Constitution. He relied on clause 5 of the Constitution to argue that the Magistrates Court was bound by the terms of the Constitution, and the oath contained in the schedule is different to that set out above.
13. In written submissions, the plaintiff also relied on clause 2 of the Constitution, however that clause merely states that the provisions of the Constitution referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
14. The Schedule to the Constitution contains the following oath:
I, A.B. , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.
SO HELP ME GOD!
15. The affirmation also set out in the schedule is in similar terms. However, the only reference to the schedule in the Constitution is in section 42:
Oath or affirmation of allegiance
Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the scheduleto this Constitution.
16. This reveals the flaw in the plaintiff’s argument, in that there is no requirement for a judicial officer of the Territory, such as the magistrate in the court below, to subscribe to the oath set out in the Constitution. It only applies to members of the House of Representatives and senators.
17. Accordingly, there was no constitutional prohibition against the ACT Legislative Assembly legislating to provide different wording in the Magistrates Court Act for the oath or affirmation to be taken by judicial officers of the Magistrates Court when they are sworn in. It had the power to make laws for the peace, order and good government of the Territory, pursuant to s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). That plainly includes the power to legislate the terms of the oath to be sworn by magistrates holding judicial office in the Territory.
18. Edelman J dealt with a similar argument regarding the terms of the oath sworn by magistrates in Western Australia when his Honour was sitting on the Supreme Court of Western Australia in Palmer v City of Gosnells [2013] WASC 446 (upheld on appeal, see Palmer v City of Gosnells [2014] WASCA 102). His Honour stated at [113]:
There is no basis for the assertion of any invalidity of the learned Magistrate's commission based upon any failure to swear an oath or affirmation of office before the Governor in Council or for the failure to swear the appropriate judicial oath to the Sovereign or her Governor. Similar arguments about the terminology used, and alterations to terminology, in Western Australian Acts have been rejected on numerous occasions. …
19. Edelman J went on to refer, among other things, to the fact that there was no constitutional prohibition upon the alteration of terminology which refers to the Crown or to Her Majesty, citing Glew v Shire of Greenough [2006] WASCA 260 at [18], and found that the ground of challenge had no prospect of succeeding.
20. Even if there were an issue or defect as to the oath sworn by the magistrate, I accept the submission of the defendant that the magistrate’s conduct in hearing and determining the proceeding in the court below would be protected by the de facto officer doctrine: see Makucha v Sydney Water Corporation [2013] NSWCA 177 per Barrett JA at [16]-[21].
21. Accordingly, the complaint described as Issue 1 fails.
Issue 2: Denial of procedural fairness in relation to discovery
22. The notice for discovery issued by the plaintiff sought a certified copy of the original certificate of proclamation for the legislation relied upon by the prosecution to found the charge. It also sought certified copies of any act, enabling act, instrument, bill or legislation assented to “as per the Commonwealth of Australia Constitution Act Section 58, providing Australian Capital Territory exemption from or removing Australian Capital Territory’s legal and lawful responsibilities from any Imperial laws, acts or statutes”.
23. Section 58 of the Constitution provides:
Royal assent to Bills
When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.Recommendations by Governor-General
The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.
24. In my view, the notice for discovery was misconceived as the prosecution had no obligation to ‘discover’ either the legislation requested or the associated proclamation. The prosecution’s only duty of discovery relates to the evidence to be led against a defendant: R v Spiteri (2004) 61 NSWLR 369. The prosecution had served the plaintiff with a brief of evidence, but the plaintiff had returned it.
25. Under s 143 of the Evidence Act 2011 (ACT), proof is not required about the provisions and coming into operation of an Act of the Territory, a Commonwealth Act or a regulation or rule made under an Act, and a judge may inform herself (in this case) about those matters in any way the judge thinks fit.
26. There are complementary provisions in the Legislation Act 2001 (ACT) (Legislation Act). Chapter 3 contains detailed provisions concerning authorised versions of laws and legislative material. Within that Chapter, s 26 provides that proof is not required of (relevantly) the passing of a proposed law, or the making, notification or publication of it in the gazette.
27. As at October 2017 when the offence was committed, the Australian Road Rules were incorporated into the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) (Road Transport Regulations) by regulation 5. The authorised version of the regulation confirms that it was notified in the gazette on 29 February 2000 (Gaz 2000 No S6).
28. However, the question is whether the magistrate denied the plaintiff procedural fairness in refusing to even permit him to agitate his ‘notice for discovery’. It is not entirely clear from the transcript whether the magistrate appreciated that the plaintiff wanted to raise this issue and have it determined. The transcript reveals that the magistrate informed the plaintiff she had reviewed the file to determine if there were any valid applications and had decided that there were not. It is unclear whether that review included the document that the plaintiff had sent to the prosecution. The plaintiff did not specifically raise the issue with the magistrate.
29. However, Mr Walker, who appeared for the prosecution in the court below, did ensure that the magistrate was aware of the request for documents made by the plaintiff, stating:
Essentially the [plaintiff’s] argument is that the requirements of the Australian Constitution apply to laws applicable in the Australian Capital Territory, and he requested, or demanded that the director provide him with copies of things like the various Act have been provided royal ascent by the queen, and certified copies of every stage of the various Act as they had been amended over time.
We’ve not provided those, because as your Honour is aware it’s not necessary for us to do so. …
30. Later in the hearing, Mr Walker again obliquely raised the matter with the magistrate, stating:
Mr Jakaj has referred to an agreement with the prosecution. I understand that to be a reference to a document he sent us requiring us to send him certain things, and we haven’t sent them. There’s no other agreement. I think he’s calling that an agreement, but I don’t understand exactly the scope or meaning of it.
31. The hearing then proceeded.
32. It is well-established that the content of procedural fairness is determined by the particular circumstances of the case. The authorities establishing that principle were collected in Kazolis v Registrar of Firearms [2018] ACTSC 89 at [50] and it is unnecessary to cite them again here.
33. In the case before the magistrate, the notice for discovery was not a document issued pursuant to any rule applicable in criminal proceedings in the Magistrates Court. It was not a matter or issue relevantly before the Court. As such, it is difficult for the plaintiff to argue it was properly an issue on which the magistrate was required to permit the plaintiff to be heard, and I have not been made aware of any principle, legislative provision or authority that suggests otherwise.
34. Accepting that the magistrate had some awareness of the failure of the prosecution to produce unspecified documents in response to a request made by the plaintiff, and her failure to investigate further whilst possessing such knowledge, I am not persuaded that the magistrate was required to invite submissions from the plaintiff on the discovery issue.
35. In any event, had the plaintiff established a denial of procedural fairness in relation to the question of ‘discovery’, relief on judicial review is a matter within the Court’s discretion. The document issued to the prosecution was plainly without legal foundation. It was unnecessary given the Court’s ability to take judicial notice of when legislation was enacted and commenced. It follows that I would have refused to grant any relief on the basis of a complete lack of utility. Nothing the plaintiff said in relation to his attempt to have certified copies of relevant proclamations and legislation discovered by the prosecution could have changed the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
36. For these reasons, the complaint described as Issue 2 has not been made out.
Issue 3 – the Australian Road Rules have not been properly passed by the Territory and did not apply to the plaintiff
37. The Road Transport Regulations were made under ss 33 and 34 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and as stated above, they incorporated the Australian Road Rules, which commenced in 1999, r 11 of which provides that such rules apply to ‘vehicles and road users on roads and road-related areas’.
38. Accordingly, at the time the offence was committed in 2017, the Australian Road Rules were expressly incorporated as part of the law of the Territory. There is no basis for suggesting, or questioning, their operability in the Territory.
39. The plaintiff’s arguments that the Australian Road Rules as applied in the Territory either did not apply to him (because they do not specify that they apply to subjects of the Queen) or were inconsistent with s 117 of the Constitution are similarly without merit. First, there was nothing before the Court to suggest that the plaintiff was not a road user at the time of the conduct.
40. Secondly, s 117 of the Constitution concerns discrimination between residents in different states. Although the plaintiff’s driver’s licence was issued by Victoria, the Australian Road Rules are largely uniform, applying throughout Australia. There are of course variations between the various state and territory legislative provisions, but there was nothing put before the Court that gave rise to any argument of discrimination on the basis of the plaintiff’s residence in the Territory.
41. For these reasons, the complaints described as Issue 3 are not sustained.
Issue 4 – Denial of procedural fairness in relation to the conduct of the hearing
42. The plaintiff argued that the magistrate did not take into account all the documentation that he wanted to put before the Court and he was not given sufficient opportunity to agitate his constitutional arguments or other arguments as to jurisdiction.
43. Specifically, the plaintiff thought that any information he had filed with the Court would be read by the magistrate. This belief was mistaken, with the magistrate clearly stating on the day of the hearing that this was not the case, expressly indicating the she would not read documents provided without invitation.
44. The plaintiff also claims that he felt the magistrate ‘blocked’ him when he was attempting to put his oral arguments. Again, context and the particular circumstances of the case are critical to an assessment of whether procedural fairness was afforded to the plaintiff. The Chief Magistrate is responsible for ensuring the discharge of the Magistrates Court’s business: s 5(1) of the Magistrates Court Act. The Magistrates Court hears numerous matters involving traffic offences daily and the hearing time allocated to each matter does not allow for a leisurely pace, nor detailed engagement between the bench and the parties as to why the magistrate chooses to proceed in a particular manner.
45. Nevertheless, I accept the plaintiff’s submission, which I will rephrase as being, that the pressures of a busy list do not absolve judicial officers from providing what has been described as one of the defining or essential characteristics of a court, being the obligation to ensure a fair hearing: Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156]; Roberts v Harkness and Magistrates Court of Victoria [2018] VSCA 215 at [9].
46. At the heart of what is ‘fair’ in the circumstances of each case is a concern to avoid practical injustice: re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [38].
47. Where a litigant is self-represented, a critical question for the judicial officer determining whether a procedurally fair hearing has taken place is to consider whether there is, or may be, an arguable legal point underlying the litigant’s arguments which he has not been able to articulate: Neil v Nott (1994) 121 ALR 148 at 150.
48. The relevant exchange between the magistrate and the plaintiff is as follows:
Mr Jakaj: … Well there is a verbal application to have the matter struck off on the basis that you have no subject matter jurisdiction and the authority of the law has not been provided by the prosecution.
Her Honour: And the basis for that application, that oral application, were I to grant you leave?
Mr Jakaj: Well, the basis, we have gone extensively in depth through our documentation that has been recorded with the court. Perhaps we can compare notes.
Her Honour: No. No, I am not going to trawl through court file to look at documents that have been filed on other occasions.
…
What is your application this morning? You’re making an oral application.
Mr Jakaj: An oral application to have the matter struck off - -
Her Honour: All right. And - -
Mr Jakaj: --- as being vexatious, misconceived and abuse of process.
Her Honour: All right. How do you say that’s the case?
Mr Jakaj: Well, that is the case, and first and foremost, the other grounds are that we understand that we have an agreement with the prosecution, we reached an agreement that there is no authority of the law and they are in default in the files recorded with the court will - -
Her Honour: I’m sorry, I don’t understand what you’re saying. I don’t understand what you mean when you say the file is in default.
Mr Jakaj: If I may go through the things, there was a - - -
Her Honour: No. What evidence are you relying on today?
Mr Jakaj: Evidence on the notice of default.
Her Honour: I don’t know if there is any such - - -
Mr Jakaj: Ma’am, have you read the affidavit?
Her Honour: No, I wouldn’t.
Mr Jakaj: No.
Her Honour: A notice of default is not a document that is recognised in this jurisdiction is an application or - - -
Mr Jakaj: Perhaps we can step back on the matter of jurisdiction, ma’am. What is the jurisdiction of this court?
Her Honour: No that’s for you to answer. I have jurisdiction. Look I don’t think we going to get anywhere with this. I’m ruling against you on your oral application. The matter is listed for hearing today and I’ve taken that you’re pleading not guilty or you’re choosing not to engage with the jurisdiction of the court.
49. Later in the hearing, the plaintiff asked the magistrate what authority she relied upon to enter a plea on his behalf. The magistrate ignored that question and asked Mr Walker to take her through the matters before the court.
50. The magistrate noted that the plaintiff had ‘a lot of paper there’ and the plaintiff said:
‘we would like to be given the opportunity to go through it, obviously. We’re not schooled in law or anything, so - - - ;
51. However, the magistrate cut him off and returned to hear from Mr Walker as to the nature of the charges against the plaintiff. Thereafter, the plaintiff indicated that he wanted to engage the magistrate on the question of jurisdiction. The magistrate responded by saying that she was not going to engage in that exercise.
52. What is clear from the transcript is that the magistrate knew that the plaintiff was challenging the authority and jurisdiction of the Court. The magistrate permitted the plaintiff to make an oral application to have the matter struck off on the basis of a lack of authority, but then proceeded very quickly to form the view, without hearing from the plaintiff, reading the affidavit he wished to put before the court, or going through other documents upon which the plaintiff sought to rely, that she had jurisdiction to hear the case.
53. The magistrate later informed the plaintiff that the hearing would proceed but that the plaintiff could appeal on the question of her jurisdiction if the plaintiff wished to do so.
54. The plaintiff sought to re-agitate his argument about the Court lacking authority throughout the hearing. The magistrate became increasingly disengaged with the plaintiff, eventually ignoring him while she proceeded to deal with the evidence.
55. The magistrate indicated to the plaintiff that he was excused and was free to stay or leave as he wished. The plaintiff chose to stay. He was given the opportunity to present evidence, but he chose not to do so on the basis that he did not intend to proceed with any merit-based argument until the jurisdictional issues had been addressed. That led the magistrate to find the offence proven, and then ultimately to her sentencing the plaintiff.
56. There is no doubt that the plaintiff did not have the opportunity to develop his argument as to jurisdiction fully or at all. The magistrate did not even read the affidavit he sought to refer to on the oral application. The magistrate was clearly correct in ruling against the plaintiff in terms of jurisdiction (for the reasons set out in relation to the plaintiff’s other complaints), and it may be inferred that in taking the peremptory course she did in closing off an argument about the jurisdiction of the court below to hear a traffic offence, the magistrate was relying on her considerable experience and was anxious to use the time available to the Court to deal with the substance of the matter.
57. The fine balance required of magistrates in their busy lists in dealing with matters expeditiously and efficiently on the one hand, and permitting litigants to raise and argue the issues they see as affecting their case on the other, must be acknowledged. However, procedural fairness is concerned with the opportunity to be heard. I am not satisfied, having read the transcript of the hearing, that the magistrate gave the plaintiff a proper opportunity to at least state the propositions on which his objection to jurisdiction rested, unsuccessful though they may ultimately have been.
58. This is not a case where written submissions were provided before-hand, so that it could be said the magistrate already had the argument. In any event, the magistrate was clear that she had not read anything previously provided to the court and did not intend to do so. I have therefore come to the conclusion that the plaintiff was not properly heard on the issue that was of the single greatest importance to him – that of the jurisdiction of the court. Consequently, I have found that there was a denial of procedural fairness in the conduct of the hearing.
59. Such a finding does not necessarily ground relief. The defendant submitted that even if the plaintiff were permitted to give greater details of his argument in the court below, there is nothing the plaintiff could have said that could have affected the ruling of the court below as to jurisdiction.
60. I accept that submission. The question of jurisdiction is one of law, and the plaintiff was permitted to put before this Court on judicial review every document and every legal argument that he had intended to raise with the magistrate. The plaintiff also indicated during the hearing that he did not want the proceedings to be returned to the court below for further hearing in the event that error was established.
61. The issue of jurisdiction has been decisively determined against the plaintiff for the reasons I have given in relation to the plaintiff’s other grounds of complaint. Although I accept that there was a denial of procedural fairness in the court below, any practical unfairness has now been accommodated on judicial review by the provision of documents and legal argument, and because it overlaps with the plaintiff’s other grounds, the issue has been fully ventilated and determined. Accordingly, I would not exercise the Court’s discretion to grant any relief.
Issue 5 – the identity of the prosecution
62. The plaintiff argued that the proceeding should have been brought in the name of the Crown, instead of by a police informant. The proceedings were therefore not competently commenced. That is incorrect. Section 190 of the Legislation Act explains the difference between an indictable and a summary offence in the Territory. An indictable offence is one that is punishable by imprisonment for longer than 2 years or an offence that is declared to be an indictable offence.
63. A breach of r 330 of the Australian Road Rules renders the offender liable to a fine and is therefore a summary offence. It may therefore be dealt with in the Magistrates Court: Magistrates Court Act, s 19.
64. Section 25 of the Magistrates Court Act provides that a criminal proceeding may be started in the court by information laid by the informant or by a lawyer or anyone else representing the informant.
65. Section 6(c)(ii) of the Director of Public Prosecutions Act 1990 (ACT) (DPP Act) then empowers the Director to conduct summary prosecutions initiated by any person. Section 16 of the DPP Act allows prosecutors representing the Director to conduct summary prosecutions taken over under s 6.
66. Accordingly, the applicable legislation did not require the proceedings to be brought in the name of the Crown. Issue 5 has not been substantiated.
Issue 6 – whether the magistrate acted in bad faith
67. The plaintiff argued that the magistrate proceeded to deal with the matter on the merits without acknowledging that there was ‘an estoppel’ in place. By clarifying this with the plaintiff during the hearing, the argument transpired to be that the perceived absence of jurisdiction should have stopped the magistrate from dealing with the charges before her.
68. In the plaintiff’s submission, the fact that the magistrate intentionally proceeded amounted to bad faith.
69. Bad faith implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision-maker: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19].
70. During the hearing, the serious nature of an allegation of bad faith was discussed with the plaintiff and he ultimately appeared to accept that a finding of an error of law based on a mistake, rather than a specific finding of bad faith, may equally capture his complaint.
71. The plaintiff drew the Court’s attention to a number of transcript references which do demonstrate an intention of the magistrate to proceed with the hearing regardless of whether the plaintiff continued to participate in the hearing or not. However, such a course was well within the power of the Court to control its own processes, including the hearing before it. It is expressly provided for by s 54 of the Magistrates Court Act, which provides that the court must hear and decide an information if both parties to the information appear personally or by lawyers or anyone else appearing for them.
72. Section 114 of the Magistrates Court Act is also relevant. Under that section, if the defendant does not admit the truth of the information, the court must hear the informant and the informant’s witnesses, and if the defendant wants to give evidence, the defendant, his witnesses and any reply evidence, before then deciding whether to make an order with respect to the defendant or to dismiss the information.
73. The plaintiff’s argument was really that the magistrate did not genuinely undertake the task of considering his jurisdictional argument, and, had that been done, the hearing on the merits would not have proceeded. However, a fair reading of what occurred is that the magistrate satisfied herself of the court’s jurisdiction to proceed, in part through an exchange with counsel for the prosecution. Then, having determined that there was jurisdiction to hear the matter and there being no application for an adjournment by either party, the magistrate proceeded to determine it, which was the appropriate course to be followed, as seen from ss 54 and 114.
74. For these reasons, I reject any suggestion of bad faith in respect of the magistrate. The complaint described as Issue 6 has not been made out.
Issue 7 – whether the court below had power to enter a not guilty plea
75. The plaintiff expressly declined to enter any plea in the court below until his complaints about jurisdiction had been properly addressed. The magistrate entered a plea of not guilty on his behalf. The plaintiff challenges the lawfulness of the course taken by the magistrate.
76. Section 282 of the Crimes Act 1900 (ACT) gives a magistrate power to enter a not guilty plea on behalf of a defendant:
Refusal to plead
If any person being so arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on behalf of the person, and the plea so entered shall have the same effect as if he or she had actually pleaded not guilty.
77. ‘Indictment’ is defined in the Legislation Act to include an information. It was clear that the plaintiff considered himself unable to enter any plea because he was not satisfied of the court’s jurisdiction. That being the case, the plaintiff had chosen not to answer directly to the charge. That response enlivened the magistrate’s power to act under s 282 and this is a complete answer to the plaintiff’s argument. The complaint described as Issue 7 cannot be sustained.
Issue 8 – whether the plaintiff was under duress
78. The plaintiff twice used the terminology during the hearing in the court below that he was there ‘under duress’, because he did not consent to the jurisdiction of the court. His view was that if he was not permitted to make his case on jurisdiction, then he was attending the court under duress. As I explained during the hearing, that argument is misconceived.
79. First, the plaintiff has misunderstood what duress means in terms of any conduct that might somehow be taken to affect his conviction at law. Evidence of a threat or coercion would be required. Here, the plaintiff was not coerced into doing something against his will. Having taken the view (correctly) that the court below had jurisdiction to hear the information, the court proceeded to hear it, as that was what it was obliged to do. It did not compel the plaintiff to participate. That was made clear to the plaintiff by the magistrate during the hearing, who indicated that the plaintiff was excused if he wished no longer to participate and was free to go.
80. Secondly, the proper characterisation of the hearing in the court below was that the plaintiff attended in answer to the bringing of the charge which had been listed for hearing. The plaintiff’s presence during the hearing was a result of legal procedure being followed, including a ruling against him on the issue of jurisdiction, not the result of any threat or coercion that might be characterised as duress.
81. I am unable to see how any question of duress arises on the facts of the present case and accordingly, the complaint described as Issue 8 has not been substantiated.
Issue 9 – the request for the return of DNA samples
82. The plaintiff’s complaint was that he did not accept that DNA samples taken when he was in custody were lawfully obtained. He has requested the DNA samples to be returned.
83. That issue is separate from, and outside the scope of, these judicial review proceedings. The decision that is the subject of challenge is the plaintiff’s conviction. It in no way depends upon or relates to the taking of a DNA sample, notwithstanding that the sample was said to have been taken on the same day.
84. There was no evidence before the court below as to the circumstances in which the DNA sample was taken and this court cannot embark on an investigation of the conduct that is the complaint now. Accordingly, the complaint described as Issue 9 will be rejected as not being a proper ground of review.
Issue 10 – failure to give reasons
85. The relevant principles as to a trial judge’s obligation to give reasons were set out in Heyward v Bishop [2015] ACTCA 58 (Heyward) at [22], the relevant parts of which are as follows:
(a) Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA.
(b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.
(c) Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.
86. However, as with procedural fairness, what is required to satisfy the obligation to give reasons will depend upon the nature of the proceedings and the circumstances of the case. The comments of Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 479, a decision cited by the Court of Appeal in Heyward at [26], are relevant here. His Honour said that it would be an error for an appeal court to examine:
...this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
87. The magistrate’s reasoning process is evident from the exchanges both with the informant as he was giving evidence, with counsel for the prosecution and with the plaintiff. The relevant witness was Constable Andrew Nisbett, who gave evidence that he saw the plaintiff drive up next to his unmarked police vehicle which was stopped at an intersection, that he was only 3-4m from the plaintiff, and that he observed the plaintiff talking on his mobile phone. The magistrate told the plaintiff after having heard the witness’ evidence that if the plaintiff did not ask any questions of the witness, she would accept the constable’s evidence.
88. The plaintiff confirmed that he was not participating and refused to accept the evidence. The magistrate then confirmed that the evidence of the witness was not being challenged for the purposes of the hearing. Later in the hearing, the magistrate recorded that she considered there was a case to answer in relation to the driving while using a hand-held mobile phone.
89. The magistrate then gave the plaintiff an opportunity to be heard on the charge and he told the court below he was not going to get into any merit-based argument, which led inevitably to the magistrate finding the offence proved.
90. Although the magistrate did not at the point give reasons for finding the offence proven, she had effectively done so earlier in the hearing by explaining to the plaintiff what her reasoning would be if the plaintiff did not challenge the witness’ evidence, namely that the eye witness account would be accepted.
91. In light of the simplicity of the charge brought, the clarity of the unchallenged evidence (that is, the nature of the evidence was overwhelming), the magistrate’s discussions with the plaintiff, the nature in which hearings are necessarily conducted in the Magistrates Court, and most importantly, considering that I have been readily able to discern the magistrate’s reasoning process from the transcript, I am not satisfied that there was any failure to fulfil the obligation to give reasons.
92. The result is that the complaint described as Issue 10 has also not been made out.
Conclusion
93. Only one of the numerous complaints raised by the plaintiff has been substantiated, and as earlier indicated, it does not warrant the court to exercise its discretion to grant relief. Accordingly, the application for judicial review should be dismissed. The orders of the Court will be:
(1) The application is dismissed.
(2) The plaintiff is to pay the second defendant’s costs of the proceedings.
I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam
Associate:
Date:
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