Jenkins v Todd
[2017] NTCA 6
•20 July 2017
CITATION:Jenkins v Todd [2017] NTCA 6
PARTIES:JENKINS, Trevor
v
TODD, Walter
TITLE OF COURT: NORTHERN TERRITORY COURT OF APPEAL
JURISDICTION: APPEAL from SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 5 of 2016 (21425645)
DELIVERED ON: 20 July 2017
DELIVERED AT: Darwin
HEARING DATE: 11 July 2017
JUDGMENT OF: Grant CJ
CATCHWORDS:
SUPREME COURT PROCEDURE – APPEAL
Appellant has not complied with orders for the purpose of prosecuting his appeal – appellant has not prosecuted his appeal with due diligence – appeal dismissed for want of prosecution
Supreme Court Act (NT) s 52
Supreme Court Rules (NT) r 84.13, r 84.16Drover v Northern Territory of Australia & Anor [2004] NTCA 10, considered.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent: WJ Karczewski QC, Director of Public Prosecutions
Solicitors:
Appellant:Self-represented
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Number of pages: 13
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJenkins v Todd [2017] NTCA 6
AP 5 of 2016 (21425645)
BETWEEN:
TREVOR JENKINS
Appellant
AND:
WALTER TODD
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 20 July 2017)
On 2 February 2016 the appellant lodged a document with the Supreme Court Registry in standard Form 85B. The document purports to be a Notice of Appeal in pursuance of r 85.09 of the Supreme Court Rules (NT).
The document nominates “Todd” as respondent to the appeal. The document goes on to specify that the appellant appeals from the judgment given on 21 January 2016. Although not express in the Notice of Appeal, this can only be a reference to the judgment of Barr J delivered in Jenkins v Todd [2016] NTSC 4 on that date.
That was a decision in a Justices Appeal brought by the appellant in respect of findings made by the Court of Summary Jurisdiction on 27 March 2015 that the appellant was guilty of the following charges:
(1) that on 29 May 2014, he trespassed on a place, namely Parliament House Darwin, and after being directed to leave that place by the occupier, namely Security Guard Mark Daffey, failed and refused to do so forthwith, contrary to s 7(1) of the Trespass Act (NT);
(2) that on 29 May 2014, at Darwin, he did unlawfully assault a person, namely Mark Daffey, who was working in the performance of his duties at the time of the assault, contrary to s 188A(1) and (2)(b) of the Criminal Code (NT); and
(3) that on 29 May 2014 at Darwin he did resist a member of the Police Force in the execution of his duty, contrary to s 158 of the Police Administration Act (NT).
In Reasons for Judgment delivered on 21 January 2016 Barr J ultimately determined:
[123] The appeal is allowed in part.
[124] Pursuant to s 177(2)(c) Justices Act, I order that the finding of guilt and conviction on count 3 be quashed. I enter a verdict of not guilty to the offence charged as count 3. The orders that the appellant carry out 50 hours of community work and pay a $150 victim assistance levy are set aside.
[125] Pursuant to s 177(2)(c) Justices Act, I affirm the magistrate’s findings of guilt and convictions on both counts 1 and 2.
The conduct of the appeal was obviously not without difficulty. In the two opening paragraphs of the Reasons for Judgment, Barr J made the following observations:
This appeal hearing demonstrated the difficulties of doing justice in the case of a self-represented appellant who demands to be tolerated and understood, perhaps even indulged, as a homeless man without resources, but who has an extraordinary sense of entitlement, is obsessed with his perceived artistic and literary greatness, arrogant and unreasonable, extremely disrespectful to the Bench, untruthful in his statements from the Bar table, unreliable and selective in his submissions, and given to vituperative outbursts when questions were asked of him which exposed flaws in his arguments.
The appellant believes that he is a misunderstood genius: “I’m a genius, you know, and so people can’t handle that.” On another occasion: “I’m not a legend for nothing … I’m one of the greatest artists and greatest thinkers in this Territory. I am. If you don’t like it, well, shove it up your arse. That’s all I can fuckin’ say.”
As a result of the appellant’s conduct Barr J directed the Registrar to apply by summons or originating motion for punishment of the appellant for an alleged contempt.
The application was heard and determined by Kelly J. On 20 April 2016, in Jenkins v Todd (No 2) [2016] NTSC 21; 36 NTLR 203, Kelly J concluded beyond reasonable doubt that by persistently interrupting and talking over the presiding judge in the manner set out in the particulars, the appellant was guilty of contempt in the face of the court. On 11 May 2016, Kelly J convicted the appellant and sentenced him to imprisonment for three months commencing on 7 May 2016, to be suspended after two weeks on the certain conditions.
Against that background, the present notice appears to challenge Barr J’s determination in Jenkins v Todd [2016] NTSC 4 to affirm the magistrate’s findings of guilt and the convictions recorded on counts 1 and 2. Leaving aside the standard formal elements, the Notice of Appeal is handwritten. The notice has attached to it nine handwritten pages which purport to be grounds of appeal. So far as they may be discerned, those grounds of appeal are recorded as follows:
I am innocent people have lied if security guards have lied about assault to cover up not actual crime of trespass it leads to corollary of other lies to manufacture trespass itself such as no invitation threatening intentions authoritative instructions which were never proved or even submitted as written factual evidence & when tested threats were made against defence counsel again & again of character to even assert innocence to the point of outright attack & manipulation of facts by the prosecution none of these was addressed by Barr Barr also fails to address the legal fact quality & weight of a written invitation why would anyone even turn up unless it was an open advertised public event in a public space since when do ‘private invitation’ events get advertised for ‘everyone to come’ and how can these public published contract invitations ever ‘legally’ be rescinded and if it was how? By again written published rescindment such as apologies for defamation & withdrawal of faulty products not some sort of muffled distorted corrupt ‘we can do what we like’ and if you question us legally we’ll arrest you & throw you in gaol deliberately we have the authority they say. Again Barr fails to secure who had any authority the speaker the emma darby assistant director the director of the security staff the head of security the attorney-general or the law itself or the practising statute. As it is regulatory statutes aren’t the law the crimes act governing these practising statutes are the law & need ‘intent’ not slander defamation & lies to create & make intent statutes are there to make things easier & definable in practice not looser lesser accountable & more corrupt & easier to lie about & corrupt Barr failed to see that trespass had to have intent also & a corollary of a corrupt unaccountable Wilson security regime privatised & outside the law (see hospital parking) see commercial & property rights attempt to travel human & anti-discrimination & natural justice & defamation rights which form and equal corresponding & a juxtaposing legal weight in enacting & carrying out & administering the law Barr ignored this legal fact the parliament house & especially the public library was never proved to be enclosed grounds the anti-discrimination human rights & also private security act as well as legislative assembly act & guidelines & the police administration & operational standards and guidelines when administered understood trained in & followed allow for instances such as these to be corrected & suitably handled not covered up people wrongly gaoled harassed slandered detained & people suspended from work & sacked lies beget lies truth & justice is an aching soothing salve Barr failed to address these issues in my appeal I seek fully exoneration
The appellant is a frequent and querulant litigant in this Court, the Supreme Court and the Local Court. Having regard to the content of the notice of appeal extracted above, and to the behaviours described by Barr J in the opening paragraphs of his Reasons for Judgment, one might reasonably apprehend that the appellant is not sui juris and requires the assistance of a litigation guardian. Those behaviours and the obvious disorder of thought notwithstanding, the appellant has been medically assessed on a number of occasions and those assessments have concluded that he has a personality disorder rather than a diagnosable mental illness.
This was a matter to which Kelly J gave some attention when she was called upon to consider whether the suspended sentence she had imposed for the contempt should be restored in whole or in part on account of a breach by the appellant of the conditions of the order suspending sentence (see Jenkins v Todd [2017] NTSC 26 concerning the finding of breach). The breach of condition was constituted by subsequent misbehaviour in proceedings before the Local Court by continually interrupting the evidence of a Crown witness and failing to comply with numerous directions by the trial judge that he cease doing so. In the event, on 9 May 2017 Kelly J restored the sentence held in suspense. During the course of those proceedings, Kelly J observed:
Mr Jenkins further explained, both to me this morning and to Mr Ré Acacio [a forensic psychologist], why he does not comply with the rules of the Court. He says, and I am quoting from the report from Mr Ré Acacio:
Mr Jenkins said that he believes that he has to express himself the way he sees fit because he is a great artist, and that the Courts cannot dictate how he should behave because it would make him less of an artist. He said that behaving otherwise would not fit the image of a great artist. He said further, “My reality is just as important, just as powerful as any Court’s reality or judge’s reality.”
There was a diagnosis of narcissistic personality disorder that Mr Jenkins does not agree with.
There is nothing in the report that would lead me to conclude that, despite Mr Jenkins’ obvious difficulties at times in self-regulation, he is unable to control himself. He plainly is. He is now putting on a performance for the cameras where he’s dancing around in the interview room naked and hiding under a chair. This is clearly a calculated move, which is not impressing anybody that I can see.
Justice Kelly concluded her reasons in Jenkins v Todd [2017] NTSC 26 with the following observations:
[76] I want to add some remarks about the extraordinary amount of this Court’s resources which are being devoted to Mr Jenkins. It is true that a society can be judged by the way it treats its most disadvantaged members, and Mr Jenkins would have to qualify as among those most disadvantaged. It is also true that doing justice in the case of unrepresented litigants will sometimes involve a patient consideration of submissions that would be given short shrift if they came from a lawyer, to ensure that the unrepresented litigant perceives that he or she has been given an full and fair hearing. However, Mr Jenkins is coming to take up a disproportionate amount of the time and other limited resources of a relatively small court to the detriment of other litigants waiting for their matters to be brought on or for reserved judgments to be delivered.
[77] This is only one of the matters Mr Jenkins has before this Court – and there are others in the Local Court. This matter began as an appeal against three convictions recorded against Mr Jenkins in the Court of Summary Jurisdiction. That appeal was heard by Barr J over six days. The resulting 56 page judgment would necessarily have taken many days work. Barr J allowed the appeal against one conviction on what was essentially a technicality. I have read the transcript and can say that all or almost all of the contentions made by Mr Jenkins over those six days were utterly without merit. (The one aspect on which he succeeded was not advanced by Mr Jenkins but identified by his Honour.)
[78] As a result of his behaviour during the hearing of that appeal, Barr J directed the Registrar to charge Mr Jenkins with contempt. The Registrar did so and this resulted in many directions hearings, an unsuccessful application by Mr Jenkins to dismiss the proceeding on the ground that I had no jurisdiction, a hearing and a sentencing hearing. I spent many, many days reading transcript, sifting through Mr Jenkins’ handwritten submissions and bulk photocopied material, and many, many more days writing two judgments – one on the jurisdictional issue and one on the substantive contempt application – as well as sentencing remarks.
[79] That was followed by this application that Mr Jenkins be dealt with for breaching his suspended sentence. Again this has involved multiple directions hearings, dealing with preliminary applications, sifting through a large volume of barely legible, barely comprehensible written material filed by Mr Jenkins trying to identify the substance of his contentions, and many, many days judgment writing dealing with contentions that by and large have no merit whatsoever. This is time I have not been able to spend writing other reserved judgments. Further, in addition to the Court time and judgment writing time involved, there has been a substantial allocation of resources in the registry and the library dealing with Mr Jenkins’ special needs and problematic behaviour. This disproportionate allocation of resources cannot continue indefinitely.
The present appeal is only one of a complex of six appeals which the appellant has on foot before the Supreme Court and this Court. The experience in the conduct of those appeals bears out Kelly J’s remarks.
The course of this appeal following the lodgement of the notice on 2 February 2016 has been as follows.
On 4 July 2016, the matter came before the Master to settle the index to the appeal books, to list the appeal for hearing, and for consequential orders. This appeal was one of three being run together by reason of certain common issues that arose. The other two appeals were AP7 of 2016 and AP8 of 2016. The Master made the following orders at that time:
1. The Appeal Index is settled in accordance with the Draft Appeal Book Index signed by the Master and dated 4 July 2016.
2. The Appeal is listed for hearing on 18 October 2016 at 10:00 am (estimated duration is 3 days to include Appeals AP7 and AP8 which will follow this Appeal).
3. The Appellant is to file three copies of the Appeal Books, and one version on disk in PDF format, by 19 August 2016.
4. The Appellant is to serve the Respondent with one copy of the Appeal Book by 26 August 2016.
5. The Appellant is to file and serve a List of Authorities and Summary of Submissions by 2 September 2016.
6. The Respondent is to file and serve a List of Authorities and Summary of Submissions within seven days after service on him of the Appellant’s List of Authorities and Summary of Submissions.
7. The matter is referred to the Senior Judge on the Court of Appeal to fix, if deemed appropriate, a Directions Hearing post 23 September 2016.
The appellant failed to comply with any of the obligations imposed on him under the terms of those orders, and made no apparent attempt to comply. From late-September 2016 the appellant made a number of written and oral approaches to court staff, and ultimately to the Master, seeking to have vacated the dates listed for the hearing of the appeals. As a result of those approaches, the matter was listed for mention before Hiley J on 10 October 2016.
During the course of that mention the appellant indicated that he expected the Court to prepare the appeal books for him, and that he was unable to prosecute the appeal until that had been done. It may be noted in that respect that the appellant had also failed to file submissions in accordance with the programming orders, but provided no excuse or explanation for that failure. Counsel for the respondents to the three appeals made the point that the conduct of the responses was also stultified by the fact that the appeal documents were not comprehensible.
The court ordered that the 18-20 October 2016 listing for the hearing of the appeals was vacated, and that the matters were to be re-listed before the Master for further directions on application. The appellant was advised of the following matters by notice dated 3 November 2016:-
·He was required to comply with the existing orders regarding filing and serving submissions in writing (in a legible form) as a pre-condition to the appeal being relisted for hearing.
·He was required to complete a review of typewritten versions prepared by the court of the various handwritten documents that had been lodged by him in the conduct of the appeal, also as a precondition to the appeal being relisted for hearing. (The provision of the typewritten versions on Hiley J’s direction was an attempt by the court to have the appellant produce a set of legible and comprehensible court documents for the purpose of the appeal.)
The onus was thereby cast on the appellant to attend to those steps and to make application in the prosecution of his appeals, including the subject appeal. He has not done so to this point in time. Nine months have elapsed in the interim period.
The Notice of Appeal is grossly defective, to the extent that the appeal might properly be characterised as incompetent. In Drover v Northern Territory of Australia & Anor [2004] NTCA 10, Martin (BR) CJ observed at [28]:
In brief reasons given in Bilioara Pty Ltd v Leisure Investments Pty Ltd [2001] NTCA 2, Mildren J concluded that a single Judge did not have the power to exercise the jurisdiction of a Court of Appeal to dismiss an appeal as incompetent. His Honour said he reached that conclusion “somewhat reluctantly”. Like Mildren J, I would be reluctant to conclude that a single Judge does not have the power to dismiss an appeal as incompetent. There are sound policy and practical reasons why such a power should reside in a single Judge. However, as I have said, it is unnecessary for me to explore this question further.
His Honour was there speaking of the power conferred by r 84.16 of the Supreme Court Rules (NT). That reluctance is, with respect and as this matter demonstrates, well-founded; but the question may also be left open in this case. Section 52(2) of the Supreme Court Act (NT) provides that one judge may exercise the appellate jurisdiction of the Court of Appeal under s 51 “to dismiss an appeal for want of prosecution or for other prescribed cause”. That provision is complemented by r 84.13 of the Supreme Court Rules, which provides relevantly that where an appellant has not done an act required to be done for the purpose of prosecuting his appeal, or otherwise has not prosecuted his appeal with due diligence, the Court may order that the appeal be dismissed for want of prosecution.
This Court would ordinarily be slow to dismiss an appeal brought by an unrepresented litigant on this ground, and would only do so in exceptional circumstances. The circumstances in the present case are exceptional. In addition to the matters apparent from the preceding discussion, there is no real prospect that the appellant will be able to take the steps necessary in the prosecution of this appeal. He is, by his own admission, incapable of preparing the necessary appeal books. Past experience also demonstrates that he is incapable of producing anything in the nature of written or oral submissions that might in any way assist in the prosecution of his appeal, or that might be rational and comprehensible.
That situation might be capable of amelioration if the appellant was to secure professional and qualified legal representation. Unfortunately, that is not possible. The appellant has disclosed the following matters in relation to the possibility that he might secure legal representation. First, his various applications for legal aid have been refused on the basis of a lack of prospects. Secondly, he would not have availed himself of that assistance even if legal aid had been forthcoming (or if pro bono assistance was offered). The reasons he gives for that position are that he is better equipped than a legal practitioner to run this proceeding (and the related appeals) due to his intimate knowledge of the surrounding circumstances; and the various legal practitioners with whom he has discussed these proceedings are not prepared to conduct the proceedings in the manner he requires.
Finally, if the Court had even the slightest basis on which to consider that there might be some merit or point of principle or arguable issue arising in the matter, or that the dismissal of the proceedings for want of prosecution might possibly give rise to some injustice, it would continue to entertain the proceedings and seek to bring them to some substantive resolution notwithstanding the very significant obstacles to doing so. A close consideration of the Reasons for Judgment in Jenkins v Todd [2016] NTSC 4 and the transcript of those proceedings does not disclose any basis on which to harbour apprehension in that respect.
The position is as identified by Kelly J in the passage extracted above from the reasons in Jenkins v Todd [2017] NTSC 26 at [77]. That is, the appeal from the decision of the Court of Summary Jurisdiction was heard by Barr J over six days; Barr J delivered carefully considered Reasons for Judgment which ran to 56 pages; Barr J allowed the appeal against one conviction on what was essentially a technicality; all the contentions made by the appellant over the six days to which the appeal ran were utterly without merit; and the one aspect on which the appellant succeeded was identified by Barr J rather than being advanced by the appellant.
The appeal is dismissed for want of prosecution.
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