Jenkins v City of Darwin - [2017] NTSC 58

CITATION:Jenkins v City of Darwin [2017] NTSC 58
PARTIES:JENKINS, Trevor
v

CITY OF DARWIN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 18 of 2016 (21615229)
DELIVERED ON:  2 August 2017
DELIVERED AT:  Darwin
HEARING DATE:  21 November 2016
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – OTHER GENERAL MATTERS – MISCELLANEOUS OFFENCES AND MATTERS – HEARING IN OPEN COURT AND IN THE PRESENCE OF ACCUSED – MISCELLANEOUS POWERS OF COURTS AND JUDGES
Application to set aside conviction or order – failure to appear at substantive hearing – ex parte hearing and recording of convictions – no reasonable excuse for failure to appear – no basis for extension of time within which to bring an appeal – no substantive defence – appeal dismissed.
Criminal Code (NT) s 18
Darwin City Council By-laws (NT) by-law 20, by-law 30, by-law 47
Interpretation Act (NT) s 17
Local Court (Criminal Procedure) Act (NT) s 63A, s 163, s 165, s 171
Maider v Dancis (1985) 39 SASR 136, referred to.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent:  P Bellach
Solicitors:
Appellant:Self-represented
Respondent:  HWL Ebsworth Lawyers
Judgment category classification:    B
Judgment ID Number:  GRA1708
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Jenkins v City of Darwin [2017] NTSC 58

LCA 18 of 2016 (21615229)
BETWEEN:

TREVOR JENKINS

Appellant

AND:

CITY OF DARWIN

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 2 August 2017)

This is an appeal brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT). The matter has a long and convoluted history.
The charges
By complaint made on 22 March 2016 the appellant was charged with the following offences:
(1)that on 26 September 2015 he deposited litter on land or allowed litter to remain on land contrary to by-laws 30(1) and 20 of the Darwin City Council By-laws (NT); and
(2)that on 26 September 2015 he deposited garbage or other refuse on a public place or other land under the control of the Council (otherwise than in a container for collection by the Council) contrary to by-law 47(2)(c) of the Darwin City Council By-laws.
The Statement of Alleged Facts provided that at approximately 10:00 am on 26 September 2015 two authorised officers of the respondent observed the appellant gathering items of rubbish from the garden of premises situate at 79 Mitchell Street, Darwin in the Northern Territory of Australia. The appellant then walked over to a nearby “skip bin”, pulled a number of items from the bin, and placed them into a plastic shopping bag. The appellant then placed that shopping bag and the items of rubbish he had gathered from the garden on the footpath contiguous to Shenanigans Hotel situate at 69 Mitchell Street, Darwin. Those items included empty drink cans, empty beer bottles, empty wine cask boxes, paper cups, a food wrapper and an empty drink carton. The items were left in a place within the municipality of Darwin, in an area under the control of the respondent, and in a place other than in an authorised rubbish collection container.
On 22 March 2016 the appellant was served with a summons on complaint which commanded him to appear before the Court of Summary Jurisdiction at 9:00 am on 26 April 2016 to answer the charges.
The convictions
The matter was called on at 10:00 am on 26 April 2016. There was no appearance by the appellant at that time. Counsel for the respondent tendered a copy of the affidavit of service of the summons on complaint. He then advised the presiding magistrate that the appellant had attended at the court registry earlier that morning and requested that hearing of the matter be stood over to 2:00 pm on that same day. The magistrate stood the matter over in accordance with that request.
The matter was called on at 2:00 pm on 26 April 2016. There was again no appearance by the appellant at that time. The respondent was given leave to proceed ex parte on both charges. The court found the charges proven, convicted the appellant of both offences, and imposed an aggregate fine of $100.
The applications to set aside a conviction or order
Later on that same day the appellant attended at the court registry and filed an application to set aside a conviction or order pursuant to s 63A of the Justices Act (NT) (which was renamed the Local Court (Criminal Procedure) Act with effect from 1 May 2016). The handwritten grounds recorded in the first application disclose relevantly that the appellant failed to attend at the 2:00 pm time because his bus was late, and that the prosecution was malicious and not in the public interest. That application was listed for hearing at 9:30 am on 3 June 2016. There was no appearance by the appellant at that time and the presiding judge dismissed the application in default of appearance.
On 3 June 2016 the appellant filed a second application to set aside a conviction or order pursuant to s 63A of the Local Court (Criminal Procedure) Act. In its handwritten terms, the second application was directed to setting aside the order dismissing his earlier application in default of appearance. The appellant says he was advised by the court registry to frame the application in those terms, rather than in terms which sought to set aside the ex parte convictions. Whatever the position might be in that respect, it is clear that the appellant’s purpose was directed to having the convictions set aside.
The handwritten grounds in the application asserted that the listing for 9:30 am on 3 June 2016 was not included on the court list, and that the appellant was not otherwise advised of the date. The appellant made those assertions again during the course of submissions in this appeal. Two matters may be noticed that respect. First, it was the appellant’s application and when he filed the process the listing for 9:30 am on 3 June 2016 was endorsed on the Application document itself. Secondly, the Criminal Court List for Friday, 3 June 2016 (which was produced on the appellant’s request) includes the listing of an application in the matter of “JENKINS Trevor 21615229” at 9:30 am on 3 June 2016. The appellant’s assertions to the contrary are manifestly incorrect.
The second application was listed for hearing at 10:00 am on 16 June 2016. There was again no appearance by the appellant at that time and the presiding judge dismissed the application in default of appearance.
On 17 June 2016 the appellant filed a third application to set aside a conviction or order pursuant to s 63A of the Local Court (Criminal Procedure) Act. In its handwritten terms, the third application was again directed to setting aside the order dismissing his earlier application in default of appearance (this time made on 16 June 2016). The appellant again says he was advised by the court registry to frame the application in those terms, rather than in terms which sought to set aside the ex parte convictions. Again, it is plain that the appellant’s ultimate purpose was to make application to set aside the convictions.
The handwritten grounds in the third application again asserted that the matter was not included on the court list on 16 June 2016, and that the appellant was not otherwise advised of the date. Those assertions were repeated during the course of submissions in this appeal. The same observations made in the context of the second application may also be made here. The Application document was clearly endorsed with the notification that the application was listed for hearing at 10:00 am on 16 June 2016, and the Criminal Court List for Thursday, 16 June 2016 includes that listing. The appellant’s assertions to the contrary are manifestly incorrect.
The third application was listed for hearing at 10:00 am on 4 July 2016. There was no appearance by the appellant at that time and the judge dismissed the application in default of appearance.
On 4 July 2016 the appellant filed a fourth application to set aside a conviction or order pursuant to s 63A of the Local Court (Criminal Procedure) Act. That fourth application was made by the same document which had been used for the third application, with a refreshed listing time of 10:00 am on 8 August 2016. The appellant appeared at that time and the matter was adjourned to 26 August 2016.
On 26 August 2016 the presiding judge determined that there was no power in the Local Court to set aside the orders by which the appellant’s previous applications to set aside a conviction or order had been dismissed in default of appearance; and that the appellant was out of time to make an application to set aside the findings of guilt pursuant to s 63A of the Local Court (Criminal Procedure) Act.
As is apparent from those findings, the judge treated the fourth application made by the appellant on 4 July 2016 as an application to set aside the order dismissing the second (or perhaps third) application. On its face, that is what the application indicates. The fourth application was made in the standard form provided for applications under s 63A of the Local Court (Criminal Procedure) Act, with the handwritten inclusions made by the appellant which have been described above.
Appropriate accommodation must be made for the fact that the appellant was and is indigent, self-represented and without legal qualifications. In making that accommodation, it is plain that the appellant’s essential purpose at all times was to make an application to have the findings of guilt set aside, but that his execution of that purpose was technically flawed. Those technical flaws should not stand in the way of doing what the justice of the case requires.
The appeal to the Supreme Court
A Notice of Appeal in standard Form 63 was filed at the Supreme Court Registry on 30 August 2016. The handwritten inclusions on that form indicate that the appeal is brought against the adjudication made by the Local Court on 26 August 2016.
Although the handwritten grounds of appeal are indecipherable in parts, and contain irrelevant and scandalous assertions, it is clear that they are directed to the ex parte hearing and the convictions entered by the then Court of Summary Jurisdiction on 26 April 2016.
Concessions sought to be made by the respondent
During the course of the appeal hearing, counsel for the respondent fairly sought to make a number of concessions concerning the conduct of proceedings in the Local Court, but without conceding the result in the appeal.
The first concession sought to be made by the respondent was that it is unclear whether the registrar of the Local Court gave written notice to the appellant, as required by s 63A(2) of the then Justices Act, of the time and place appointed for the hearing of the first application to set aside a conviction or order. Insofar as that requirement is concerned, the Application form taken out by the appellant clearly had endorsed on it that the application was fixed for hearing at 9:30 am on 3 June 2016. In the absence of any countervailing evidence from the appellant, it may be inferred that this constituted written notice for the purposes of the provision.
The second concession sought to be made by the respondent was that the order dismissing the first application to set aside the ex parte convictions made on 3 June 2016 did not comply with the requirements of s 63A(7) of the Local Court (Criminal Procedure) Act. That provision required the court to proceed to hear and determine the application either “by refusing that application; or by adjourning the hearing of that application to a time and place appointed by the Court, and giving to the other party written notice ... of that time and place”.
It will be recalled that there was no appearance by the appellant on 3 June 2016 and the presiding judge dismissed the application in default of appearance. The respondent sought to concede that s 63A(7) of the Local Court (Criminal Procedure) Act requires an adjudication on the merits of the application, and that the effect of the dismissal in default of appearance was to decline to hear and determine the application. That concession notwithstanding, an appeal court would be slow to conclude that a dismissal in default of appearance is not a refusal of the application in the relevant sense in circumstances where an applicant has failed to appear in his or her own application.
The third concession sought to be made by the respondent was that it might be possible to treat the subject appeal as one directed to the dismissal of the application in default of appearance on 3 June 2016, rather than to the determination subsequently made on 26 August 2016. The respondent also drew attention to the fact that although s 171 of the Local Court (Criminal Procedure) Act requires an appeal to be instituted within 28 days from the time of the conviction, order or adjudication in question, s 165 of the Local Court (Criminal Procedure) Act permits this court to dispense with compliance with any condition precedent to the right of appeal if “the appellant has done whatever is reasonably practicable to comply with this Act”.
The fourth and final concession sought to be made by the respondent was that the offences for which the appellant was convicted related to the same conduct and so attracted the application of s 18 of the Criminal Code (NT), which enacts a statutory form of autrefois convict. For reasons which will become apparent, it is unnecessary to decide whether the facts alleged to constitute the legal ingredients of each offence are the same so as to attract the operation of the defence.
Section 20 of the Criminal Code provides that a finding of guilt of a regulatory offence shall not be a defence to a charge for another offence that is not a regulatory offence. Section 17 of the Interpretation Act (NT) defines “regulatory offence” to mean “an offence specified in an Act or subordinate legislation to be a regulatory offence”. The term “subordinate legislation” is defined in that same section to include by-laws. An offence against by-law 30(1) is not specified to be a regulatory offence. An offence against by-law 47(2)(c) is specified to be a regulatory offence. Accordingly, the defence would not appear to have application to these circumstances.
Consideration
The appellant faces a number of insurmountable barriers to the successful prosecution of this appeal.
First, the second, third and fourth applications could not be brought to set aside the orders made in each preceding application. The judge was correct in determining on 26 August 2016 that the language of s 63A of the Local Court (Criminal Procedure) Act restricts the availability of that particular form of application to ex parte findings of guilt or orders made in relation to a charge brought on complaint. It had no application to orders dismissing previous applications brought in pursuance of s 63A.
Secondly, s 63A(1) of the Local Court (Criminal Procedure) Act provides that an application to set aside a conviction or order must be made not later than one month after the finding of guilt or order comes to the applicant’s notice. The judge was correct in determining on 26 August 2016 that the fourth application had been made out of time for the purpose of setting aside the ex parte convictions. It is clear that in this case the ex parte convictions came to the appellant’s notice on 26 April 2016, which was the day they were recorded. Any application had to be brought within one month of that date. The first application was brought in time; but, even if it was possible to characterise the second, third and fourth applications as directed to setting aside the ex parte convictions, each was made outside that timeframe.
Thirdly, even if the appeal was to be determined on the basis that it is directed to the order made on 3 June 2016 dismissing the application to set aside the ex parte convictions in default of appearance, the appellant would require an extension of time within which to bring the appeal and would need to establish some error or mistake on the part of the Local Court in making that order.
So far as the time bar is concerned, the appellant was required to lodge a Notice of Appeal within 28 days of 3 June 2016. That was not done until 30 August 2016. By reason of his repeated failures to appear it cannot be said that “the appellant has done whatever is reasonably practicable to comply with this Act” within the meaning of s 165 of the Local Court (Criminal Procedure) Act.
So far as the question of error or mistake is concerned, the dismissal in default of appearance was a disposition open to the court in the circumstances. The appellant had failed to appear on his own application. That application was to set aside ex parte convictions that had been recorded following the appellant’s earlier failure to appear on the substantive hearing of the charges. As is apparent from the sequence of events described earlier in these reasons, the appellant repeatedly failed to appear as required; first on the hearing of the complaint itself, and subsequently on the first, second and third applications to set aside the convictions or orders. His explanations and purported excuses for those failures must be rejected for the reasons already described. The appellant’s failures in this respect are properly attributed to a lack of organisation and a lack of regard for court listings on his part.
Moreover, the justice of the case did not require the ex parte convictions to be set aside. The appropriate test is as described by Cox J in his consideration of the counterpart South Australian provision in Maider v Dancis (1985) 39 SASR 136 at 142:
[I]n the end, as it seems to me, it will be a matter of doing what the justice of the case in hand requires. The relief given by s 76(a) is discretionary, and any review of a special magistrate’s decision on appeal will be dealt with in the manner appropriate to discretionary orders. As long as he applied the correct principles, and took all relevant matters and only such matters into account, his decision will not ordinarily be assailable.
The appellant’s failure to attend at the substantive hearing of the charges was just one episode in a pattern of serial disregard of court orders and schedules, which was compounded by his subsequent failure to attend on the hearing of his own application to set aside the convictions. Nor, for the reasons which follow, did the merits of the case call for the appellant to be given opportunity to run a substantive defence to the charges.
Finally, even if this court was to treat this appeal as directed to the order to record the ex parte convictions, the appellant would again require an extension of time in order to bring the appeal and would again need to establish some error or mistake on the part of the Local Court. That would bring into focus the substance or otherwise of the appellant’s proposed defence to the charges. So far as may be discerned from the grounds contained in the first application to set aside the convictions, the Notice of Appeal filed in this court, and the appellant’s oral submissions in the appeal hearing, the proposed defence has a number of interrelated limbs.
The first contention is that although the appellant picks up more rubbish than anyone else, he is the only person in Darwin who gets charged for littering. That complaint does not address the facts that were relied upon as constituting the offending in this instance. The second contention is that the prosecution by the respondent was politically motivated by the “election cycle”, which is presumably a reference to the appellant’s previous or prospective candidacy in local government elections. That complaint is attended by allegations of harassment, legal and political corruption, persecution and malicious prosecution. It has no substance and is unsupported by even a scintilla of evidence beyond the appellant’s bald assertions. The third contention is that the prosecution was not in the public interest. In the absence of any evidence to suggest abuse of process, the question of public interest was a matter which fell to the prosecuting authority to determine.
Disposition

The appeal is dismissed.

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