CITATION:Jenkins v Whittington [2017] NTSC 65
PARTIES:JENKINS, Trevor
v
WHITTINGTON, Robert
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 20 of 2017 (21617016)
DELIVERED ON: 21 August 2017
DELIVERED AT: Darwin
HEARING DATE: 25 July 2017
JUDGMENT OF: Grant CJ
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – APPREHENSION OF BIAS
Whether trial judge erred in failing to recuse himself on basis of a reasonable apprehension of bias – relationship between trial judge and witness in the matter – no reasonable perception that the trial judge’s decision was influenced by a relevant association or acquaintance – apprehension of bias not established – appeal dismissed.
Asciak v Samuels (1976) 15 SASR 265, Cottle v Cottle [1939] 2 All ER 535, Lindon v Commonwealth (No 2) (1996) 70 ALJR 541, Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2008] NSWLEC 318, S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358, Trustees of Christian Bros v Cardone (1995) 57 FCR 327, referred to.
PROCEDURE – INFERIOR COURTS – CONTEMPT, ATTACHMENT AND SEQUESTRATION
Whether trial judge erred in convicting the appellant of contempt – contempt in the face of the court – whether contempt can be dealt with by the judge before whom the contempt was allegedly committed – deliberately preventing the determination of criminal charges – urgent and imperative for the trial judge to act immediately – appellant charged with contempt before being remanded in custody – appellant had access to legal representation – appellant had appreciation of the conduct underlying the charge – appellant granted a sufficient adjournment to enable a defence to be prepared – case against the appellant proved beyond reasonable doubt – appellant given opportunity to address the court on penalty – penalty imposed not unreasonable or plainly unjust – appeal dismissed.
Criminal Code Act (NT) s 8
Local Court Act (NT) s 45, s 46, s 47Consolidated Press Ltd v McRae (1955) 93 CLR 325, Coward v Stapleton (1953) 90 CLR 573, Fraser v The Queen [1984] NSWLR 212, Grassby v The Queen (1989) 168 CLR 1, Hinch v Attorney-General (Vic) (1987) 164 CLR 15, Keeley v Brooking (1979) 143 CLR 162, MacGroarty v Clauson (1989) 167 CLR 251, Magistrates’ Court at Prahran v Murphy [1997] 2 VR 186, O’Brien v Northern Territory (2003) 173 FLR 455, R v Fletcher; Ex parte Kisch (1935) 52 CLR 248, R v Hume; Ex parte Hawkins (1965) 55 DLR (2d) 453, R v Metal Trades Employers’ Assn; Ex parte amalgamated Engineering Union (1951) 82 CLR 208, Re Bennison; Ex parte Fisher SM (1995) 14 WAR 318, Re Dunn [1906] VLR 493, Sanderson v Lambe (2005) 193 FLR 318, Tippett v Murphy (1982) 62 FLR 183, Witham v Holloway (1995) 183 CLR 525 referred to.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – HEARING IN…
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- AGLC
- Jenkins v Whittington [2017] NTSC 65
- Case
- [2017] NTSC 65
- Decision Date
CaseChat Overview and Summary
The primary legal issues in the appeal were whether the trial judge erred in failing to recuse himself due to a reasonable apprehension of bias, whether the trial judge correctly convicted the appellant of contempt and imposed a penalty, whether the appellant’s right to natural justice was breached by conducting the hearing in his absence, and whether the sentences imposed for specific counts were manifestly excessive.
The court found that the trial judge did not err in failing to recuse himself. The relationship between the trial judge and a witness did not create a reasonable apprehension of bias, as there was no evidence that the trial judge’s decision was influenced by any relevant association or acquaintance. The court also concluded that the trial judge correctly convicted the appellant of contempt and imposed a penalty. The conduct of the hearing justified immediate action by the judge, and the appellant had access to legal representation and was granted sufficient adjournment to prepare a defence. The court further determined that the appellant's absence from parts of the hearing did not breach natural justice, as the appellant's conduct made it impracticable to continue the proceedings in his presence, and there was no risk of an improper conclusion by the jury. Finally, the court found that the sentences imposed were not manifestly excessive, considering the appellant’s criminal history and the need for deterrence and protection of the community.
The appeal was dismissed, and no further orders were made.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The appeal on this ground is dismissed.Consideration of second ground – that the trial judge erred in convicting the appellant of contempt on 26 April 2017 and in imposing penalty in respect of that conviction The conduct of the hearing on 26 April 2017 had an unfortunate beginning. Prior to the judge taking the bench there was some form of contretemps between the prosecutor and the appellant in the courtroom. The prosecutor asserted that the appellant had been verbally aggressive and physically confronting, and had showered his face with spittle while yelling at him from a distance of only inches.[10] The prosecutor frankly conceded calling the appellant the “pig” and an “animal” in response to that affront.[11] The appellant sought to have the judge charge the prosecutor with contempt. Understandably, the judge declined to do so. There then followed a series of exchanges between the appellant and the bench during which the appellant demonstrated a deep misunderstanding of legal processes and a remarkable lack of courtesy.[12] The judge exercised a considerable degree of forbearance during the course of these exchanges, and sought to bring them to a close by having the prosecutor read the charges. The appellant sought to plead “no case” to each of the charges, and continued to take issue with the judge’s ruling on the application for recusal and various other issues in a manner that was again both extremely discourteous and highly ill-informed.[13] The judge took the pleas of “no case” as pleas of not guilty. There followed an exchange between the judge and the appellant during which the appellant threatened to disrupt the proceedings and accused the judge of dishonesty:[14]HIS HONOUR: Mr Jenkins, I'm asking you to stop speaking while I make some directions about the future of this case this morning.Mr Rowbottam, you’ll need to make some arrangements with my orderly here to show the film that you’ve brought to show Mr Jenkins. If you wish to have the security officer remain in court to meet your concerns that you expressed to me earlier – Officer, are you in a position to remain here for a while? Thank you for that. We don’t ask you to do anything, except to make sure that Mr Jenkins doesn't approach Mr Rowbottam inappropriately closely. Thank you.Mr Rowbottam, we’ll - - -MR JENKINS: I'd like to make a request that he doesn't touch me, please?HIS HONOUR: Yes, that’s fair, too.Mr Rowbottam, you, for your part, keep back from Mr Jenkins.….HIS HONOUR: Mr Jenkins, I want this matter to proceed.MR JENKINS: Well, I'm not going to let it proceed, because I'm going down there and I'm taking contempt charges against Ian Rowbottam. HIS HONOUR: Mr Jenkins, if you leave this court room - - -MR JENKINS: I'm going to charge him for his behaviour.HIS HONOUR: Mr Jenkins, if you leave this court room while I am addressing you and while I tell you the matter is proceeding, I will have you arrested. Do you understand?MR JENKINS: Don’t harass me.HIS HONOUR: I will not harass you, provided that you can comport yourself appropriately.MR JENKINS: Well, why don’t you tell the truth about having a personal relationship with Daniel McGregor? Why don’t you tell the truth about that?HIS HONOUR: Will you comport yourself properly or do we have to take ridiculous steps to have these proceedings continued?MR JENKINS: Why am I being charged with rubbish charges that absolutely mean nothing because I'm good at arguing? I'm winning my cases and Rowbottam can't handle it. I win my cases against the DPP - - -HIS HONOUR: We haven't heard any evidence yet, Mr Jenkins.MR JENKINS: - - - and I walk all over people. Pardon?HIS HONOUR: We haven't heard any evidence about these charges yet?MR JENKINS: Ian Rowbottam hates my guts, has kept me in gaol. He’s actually lied against me in court. He’s taken charges against me.HIS HONOUR: Mr Jenkins - - -MR JENKINS: No, he hates my guts - - -HIS HONOUR: - - - you are to comport yourself properly - - -MR JENKINS: I'm not letting him win this case - - -HIS HONOUR: - - - while the court is sitting - - -MR JENKINS: I am not letting him win this case because there’s situations where these people are just pushing me and pushing me and pushing me, and I get sick of it. Every time I come in here, they push me and they push me and they push me and I'm getting sick of it. I don't want it.