Johnson v Phelan and Anor

[2002] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S194 of 2001

B e t w e e n -

PAUL HENRY JOHNSON

Applicant

and

JUDGE PHELAN

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 APRIL 2002, AT 2.42 PM

Copyright in the High Court of Australia

MR P.H. JOHNSON appeared in person.

MR R.D. ELLIS:   Your Honours, I appear for the second respondent, the Director of Public Prosecutions.  (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed by the solicitor for the first respondent that the first respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Yes, Mr Johnson.

MR JOHNSON:   I submit to the Court that in case No S146 of 1995 that – do you have the booklets in front of you, sir?

GLEESON CJ:   We do.  That number has been altered to S194 of 2001.

MR JOHNSON: That is correct, sir, on the next page, yes. I draw your attention to my draft notice of appeal and the grounds on which I claim. That is on page 38, sir. It is claimed by the court that s 23 of the Community Service Orders Act 1979 does not refer to the actual arrest for a warrant, for a breach of community service order, meaning that it is not a proceeding for an offence for breach of community service order. This is the reason for dismissing the summons. It is my submission that the court of appeal is wrong.

I take your attention to that. It was found by the Local Court that the warrants in relation to this matter were – there was found no action be taken and the matter was dismissed in the Local Court, yet we still find ourselves here discussing whether or not the execution of the warrant is related to the issuing of a warrant for a breach of community service order and a breach of recognizance which were subject to the same community service order. It is my submission to the Court that section 23 actually refers to the actual arrest for a breach of community service order.

I draw your attention now to page 41, “A BREIF STATEMENT OF THE APPLICANT’S ARGUMENT”. The argument is as follows. An arrest for a warrant for a breach of community service order is a proceeding for an offence in respect of a community service order. Also, the use of the phrase “commencement of proceedings” has no connection with S25, section 23 of the Community Service Orders Act.  I might point that out.  That was clearly agreed upon by the presiding magistrate, Mr Priestley, at the time and for some reason ‑ it was agreed upon I was correct.  Yet for some reason Justice Stein decided to state that an actual arrest for a warrant – that the actual Act, the Community Service Orders Act, does not refer to the arrest for the warrant.

I will then draw your attention to the table of authorities, legislation or other materials on which the applicant relies upon.  It is at page 42 of the book, sir.  I go to No 6, the Justices Act, section 64 paragraph (e).  That, sir, is from the Justices Act.  It is form and execution of a warrant for a summary offence.  That brings us to the Criminal Practice and Procedures Act, Part 16, duration of a community service order, because the local magistrate checked the community service laws, the Acts that deal with the matter, and acted appropriately, found there was no action to be taken and dismissed the matters.

We then find ourselves in this situation, where Justice Phelan has rejected or has found – it is my submission that Justice Phelan has not addressed it.  It is my submission that the Supreme Court have acted incorrectly in applying the Act to this point of law which is discussed.  I require that to be changed.  I require the law to be upheld as written in the book, not in a published statement that was incorrectly worded as to what the Act said.  Okay.

With regards to the respondent’s summary of argument, it does not cover the issues at all. I would ask that the magistrates go back and look at the original submissions of the Supreme Court and that gives a much clearer idea of the situation. The situation is quite clear, that it was correct to use section 23 – sorry, part 25 of section 23. It is my submission that the Supreme Court was incorrect in denying that an arrest for a warrant – that that Act does not refer to an arrest for a warrant issued for a community service warrant. It is unbelievable a simple mistake like that could be made in such a highly‑educated court. I was disappointed and I hope that this Court can read through my submission, accept my submission and act appropriately.

With regard to evidence, I have been told that you have everything on file and you have the files in front of you.  I would like to make note that I beat all charges that were connected to this matter, except for a resist arrest and assault police officer.  It is my submission he was acting unlawfully at the time and I would ask that you grant the orders sought so that I may continue the correct procedure if following on getting a hearing – excuse me – on getting an appeal granted, sorry.  Is there any questions by the Court?

GUMMOW J:   Now, Mr Johnson, it seems to me – have you got page 45 there?

MR JOHNSON:   45?

GUMMOW J:   Yes.

MR JOHNSON:   Yes.

GUMMOW J:   You will see 3.4 down the bottom of the page ‑ ‑ ‑

MR JOHNSON:   3.4?

GUMMOW J:   ‑ ‑ ‑ going over to 3.5.

MR JOHNSON:   Yes, that is in ‑ ‑ ‑

GUMMOW J:   Well, that seems to me the heart of the reasoning that is put against you.

MR JOHNSON:   There is no reasoning against the Act, sir.  The Act states that no action should be taken one month after the order ceased to be in force.  The police acted 3½ months out of date.  They made no effort to check any information regarding the warrants.  They admit all this in court.  They are required by the Police Services handbook, when executing a commitment warrant, before someone is charged with a commitment warrant a number of conditions apply.  If a warrant is to be executed before making a charge entry, confirm the existence and wording of the original warrant.  Do this by contacting the WIS.  If the original is another station, ask the police there.  Cite it.  Record the name, citing the general station pattern.  Station officer contact WIS to find out the default period in all instances.  Recording.  Record in charge records that CWS was updated. 

Absolutely none of this has happened by the police, which has allowed this situation to evolve into a High Court matter.  This should not have got out of Local Court.  I might add that I have represented myself the entire – through the entire situation over 4½ years and the only thing left is these two, and they are a community – a good behaviour bond hanging over my head for that.  I am here to make sure that I am found not guilty and I believe this document will give you all the information you need to do that.  If there is any confusion, any questions?  Excuse me for a moment.

Yes, the question is – applicant’s summary of argument, page 40, questions – “STATEMENT OF SPECIAL LEAVE QUESTION’S SAID TO ARISE”.  I will just cover these, if I may.  Is an arrest for a warrant – the numbers of the warrants – for a breach of community service order recognizance a proceeding for an offence under the Community Service Orders Act when both are conditions of the same order?  That is the number one question here.  Is the court wrong to apply the phrase

commencement of proceedings in its published submission when section S23 of the Community Service Orders Act states that:

notwithstanding section 56(1) of the Justices Act, 1902, proceedings for an offence under subsection (1) in respect of a community service order, shall not be commenced at any time later than one month after the order ceased to be in force.

I point this out directly, sir.  The word “commencement” – sorry, the word “proceedings” means all action in connection with an action commenced in a court, including an incidental action, including an action in connection with an action commenced in a court, according to the Butterworth Law Dictionary.  I have also included that in the Supreme Court submission, the Butterworth Law Dictionary and the Macquarie Law Dictionary, which I believe are our two Australian law dictionaries.

I ask for you to give that appropriate consideration in granting my leave to appeal to the Court of Appeal – I think that is correct, sir.  Thank you.

GLEESON CJ:   Thank you.

In this matter we have read the written submissions made on behalf of both parties and we have listened to the oral argument developed by the applicant on his own behalf.  Having considered those arguments, the Court has come to the conclusion that the decision of the Court of Appeal, which turned upon a point of legal construction of a statute, was correct.  The application is dismissed.

Is there a question of costs?

MR ELLIS:   No, your Honour.

GLEESON CJ:   Thank you.  That is the order we will make.

AT 2.54 PM THE MATTER WAS CONCLUDED