Jenkins v Todd - [2017] NTSC 26

Jenkins v Todd [2017] NTSC 26
PARTIES:JENKINS, Trevor

v
TODD, Walter

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 10 of 2015 (21425645)
DELIVERED:  3 April 2017
HEARING DATES:  15 March 2017
JUDGMENT OF:  KELLY J
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent:  G Macdonald
Solicitors:
Appellant:
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  KEL1707
Number of pages:  43

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Jenkins v Todd [2017] NTSC 26

No. JA 10 of 2015 (21425645)
BETWEEN:

TREVOR JENKINS

Appellant

AND:

WALTER TODD

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 3 April 2017)

On 11 May 2016 I sentenced Mr Jenkins to imprisonment for three months suspended after two weeks for contempt of court committed in proceedings before Barr J on 20 January 2016. The sentence was suspended for 12 months. It was a condition of the suspended sentence that, during that 12 month period, Mr Jenkins behave respectfully and appropriately whenever he appeared in a court. (Details of the condition are set out at [45] below.)
I am dealing with an application that Mr Jenkins be dealt with for breaching the conditions of his suspended sentence. The breach is said to have been committed in the course of proceedings in the Local Court before Judge Smith on 21 October 2016.
Before dealing with the breach application, however, I need to deal with two preliminary applications by Mr Jenkins and an application by the Registrar to set aside some subpoenas issued by Mr Jenkins.
Apprehended bias application
The first matter before me is an application by Mr Jenkins that I recuse myself for apprehended bias. The original basis put forward by Mr Jenkins for that application is that I was the judge who found him guilty of contempt and imposed the suspended sentence. That is not a basis upon which I should recuse myself. The test for apprehended bias is whether a fair-minded lay observer might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case.[1] I can see no logical reason why a fair minded observer might entertain a reasonable apprehension that a judge who has found an offender guilty of an offence and imposed a sentence, might not bring an open and unbiased mind to determining whether the offender has breached the conditions of that suspended sentence and, if so, what consequence should follow. The issues on the breach application are different from those on the trial of the substantive proceeding so there can be no question of any pre-judging of those issues.[2] It is the usual practice in this Court to list applications for offenders to be dealt with for breach of a suspended sentence before the original sentencing judge where possible for the very sensible reason that that judge is already familiar with the background.
On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jenkins v Todd

Details

AGLC: Jenkins v Todd [2017] NTSC 26
Case: [2017] NTSC 26
Decision Date: 3 April 2017

CaseChat Overview and Summary

- Parties: Jenkins v Todd
- Nature of Dispute: Breach of a suspended sentence
- Court: Supreme Court of the Northern Territory exercising appellate jurisdiction
- Legal Issues: The court had to determine whether the appellant, Jenkins, had breached the conditions of his suspended sentence by disrupting court proceedings and failing to comply with the judge's directions. Additionally, the court had to consider preliminary applications, including Jenkins's application for the judge to recuse himself for apprehended bias, an application for the breach proceeding to be permanently stayed as an abuse of process, and an application to set aside certain subpoenas issued by Jenkins.
- Court's Reasoning and Outcome: The court found that Jenkins had indeed breached the conditions of his suspended sentence by intentionally disrupting court proceedings and failing to comply with the judge's directions. The court rejected Jenkins's application for the judge to recuse himself for apprehended bias, finding no reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues. The court also dismissed Jenkins's application for the breach proceeding to be permanently stayed as an abuse of process, as there was no evidence to support Jenkins's claims. The court set aside certain subpoenas issued by Jenkins, as they did not have a legitimate forensic purpose. The court found Jenkins guilty of breaching his suspended sentence and revoked his bail, ordering him to be remanded in custody.

Orders