Mansell v Hughes
[2024] TASSC 28
•28 May 2024
[2024] TASSC 28
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Mansell v Hughes [2024] TASSC 28 |
| PARTIES: | MANSELL, Lonewolf Brent Shayne |
| v | |
| HUGHES, Evan | |
| FILE NO: | 2721/2023 |
| DELIVERED ON: | 28 May 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 9 May 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Magistrates – Hearing – Conduct of magistrates – Procedural fairness and natural justice – Contempt in the face of the court – Reasonable apprehension of bias – Private conversation or communication as to consequences of defendant's conduct.
Aust Dig Magistrates [1122]
Legislation:
Justices Act 1959 (Tas), s 25(1).
Cases cited:
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Fraser v The Queen [1984] 3 NSWLR 212
R v De Simoni (1981) 147 CLR 383
Re JRL; Ex parte CJL (1986) 161 CLR 342
Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682
Stanley v Tasmania [2015] TASCCA 24
Webb v The Queen (1994) 181 CLR 41
Zukanovic v Magistrates Court of Victoria at Moorabbin [2011] VSC 141, 32 VR 216
REPRESENTATION:
Counsel:
Applicant: H Goss Respondent: L Ogden
Solicitors:
Applicant: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 28 |
| Number of paragraphs: | 20 |
Serial No 28/2024 File No 2721/2023
LONEWOLF BRENT SHAYNE MANSELL v EVAN HUGHES
| REASONS FOR JUDGMENT | BLOW CJ 28 May 2024 |
1 This is a motion for the review of a conviction for contempt of court. On 6 September 2023 the applicant, Lonewolf Brent Shayne Mansell, unsuccessfully applied for bail in the Magistrates Court in Launceston. His application was heard by the respondent to this motion, Mr E Hughes. When the learned magistrate was giving his reasons for refusing bail the applicant walked out of the courtroom into a secure area where there is a lift used for the transportation of prisoners. He banged noisily on a door. The learned magistrate heard the noise and said this:
"I hold Mr Mansell in contempt. And in holding Mr Mansell in contempt, I therefore – Mr Mansell can be taken away. I don't need him for the purposes of this next step in the proceedings. Take Mr Mansell away. Take him away. Pursuant to s25 of the Justices Act, I find that Mr Mansell has wilfully misbehaved himself before me in the course of these proceedings and the exercise of my jurisdiction under any Act, in this case the Bail Act. The wilful behaviour of Mr Mansell is particularised in the following way. That Mr Mansell caused – attempted to cause damage to Court property by banging on a door in the waiting area of the Magistrates Court, and thereby attempted to cause damage to Court property during the course of a decision with respect to bail. They are the particulars with which I find Mr Mansell to be in contempt. I deem him to be guilty of that contempt and I'll proceed to sentence him in half an hour's time."
2 The applicant was taken to the Launceston Remand Centre where, about 30 minutes later, he appeared before the learned magistrate via an audio-visual link. During those 30 minutes a complaint containing one charge of contempt was prepared, signed by the learned magistrate as the complainant, and numbered 70560/2023. It alleged that the applicant had contravened provisions in the Magistrates Court Act 1987, but the learned magistrate had intended it to contain a charge under s 25 of the Justices Act 1959 and amended it accordingly. Upon resuming the proceedings he said this to the applicant:
"Now Mr Mansell in your absence whilst you were being taken from the court building I held you in contempt. That contempt was pursuant to s25 of the Justices Act 1959. I found that you wilfully misbehaved yourself before a justice in the exercise of their jurisdiction under this or any Act. I deemed that you were guilty of that contempt and ordered that you be removed from the Court to another place and be taken into custody for the purposes of determining the appropriate sentence that should be imposed upon you for your contempt."
3 He went on to explain the amendment of the complaint and said that he would hear from the applicant's counsel if he wished to make any submissions in relation to sentence. He then said the following:
"Look for your benefit I'll just indicate this to you. In relation to the contempt the pleaded contempt is in relation to Mr Mansell's conduct in the secure area by striking a lift door causing it to become inoperable.
In relation to the objective facts that are relevant to the question of sentence, as I understand it the lift was rendered inoperable by the conduct of Mr Mansell. It caused him to be confined in a confined space – a security risk in my view – with other security officers, I understand that there were two present with Mr Mansell at the relevant time.
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It's caused the court to have to make arrangements for others to attend the court building to facilitate the release of Mr Mansell from that lift including the two court security officers and may result in there being further repair work being required to the lift in question.
So they're the relevant facts that I'm considering in terms of the objective seriousness of the contempt and the way in which I proceed to deal with Mr Mansell for his contempt."
4 Clearly the learned magistrate had been informed by somebody that the applicant had caused the lift to become inoperable, and caused him to be trapped in it with two security officers until someone attended and released them, as well as creating a possible need for repair work to be done on the lift.
5 Counsel for the applicant then made submissions in relation to sentence. During those submissions the applicant personally apologised to the learned magistrate, saying this:
"Ah obviously I apologise, I over-reacted. I shouldn't have reacted like that. You were obviously just trying to tell me that I wasn't getting bail and I overstepped the line and I do apologise for that. I am very sorry for striking the elevator and causing it to break down."
6 The learned magistrate made quite detailed comments in relation to sentencing, convicted the applicant, and sentenced him to two months' imprisonment, backdated to 24 August 2023 when he had been taken into custody.
7 The applicant relies on four grounds of review, which can be summarised as follows:
•
He contends that the learned magistrate erred in sentencing on a factual basis that was not the basis of the original oral charge of contempt (Ground 1).
•
He contends that the learned magistrate erred by taking into account conduct that was not in the face of the court (Ground 2).
•
He contends that the learned magistrate denied him procedural fairness by not giving an opportunity to show cause why he should not be convicted of contempt of court (Ground 3).
•
He contends that the learned magistrate should have disqualified himself on the basis of apprehended bias (Ground 4).
Factual basis of the conviction (Grounds 1 and 2)
8 As I have said, the applicant was charged under s 25 of the Justices Act. That section reads as
follows:
"(1) If a person –
(a)
wilfully misbehaves himself before justices sitting in any place in the exercise of their jurisdiction under this or any other Act;
(b) wilfully interrupts or obstructs proceedings before such justices; or
(c) is guilty of wilful prevarication in giving evidence before such justices – that person shall be deemed guilty of contempt of court, and the justices may, during their sitting, by oral order, direct that person to be removed from the court or place, and to be taken into custody, and at any time before they rise may impose on that person a fine not exceeding 10 penalty units or, by warrant, commit that person to a term of imprisonment not exceeding 6 months.
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(2) Where a person is guilty of misconduct mentioned in subsection (1) , the justices may, if they think fit, accept an apology for the misconduct, and may remit any penalty or punishment for it either wholly or in part."
9 By virtue of s 22(1)(b) of the Justices Act, a magistrate has the power to do alone any act which may be done by two or more justices sitting as a court of petty sessions. He therefore had the power to proceed against the applicant in accordance with s 25 on the basis of the applicant having wilfully misbehaved himself before him whilst he was exercising his jurisdiction under the Bail Act 1994.
10 The applicant accepts that any misbehaviour on his part that was seen or heard by the learned magistrate falls within the scope of s 25(1)(a), but contends that any conduct not heard or seen by the learned magistrate does not. As the learned magistrate heard the banging noises caused by the applicant, he accepts that his conduct in banging on the door fell within the scope of s 25(1)(a). There is clear authority for the proposition that something heard but not seen by a judicial officer can constitute contempt in the face of the court: Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682; Fraser v The Queen [1984] 3 NSWLR 212. The applicant's conduct in banging on the door therefore constituted contempt in the face of the Court. There is no suggestion that the immobilisation of the lift, the trapping of the applicant and others inside it, or any damage to the lift were caused by any subsequent conduct on the part of the applicant.
11 In his sentencing comments, the learned magistrate carefully pointed out that he was ignoring any damage or injury to property in sentencing the applicant for contempt. He referred to the High Court's decision in R v De Simoni (1981) 147 CLR 383. Subject of course to him affording procedural fairness to the applicant, it was open to him to take into account the consequences of the contumacious conduct other than property damage. Those consequences included the temporary immobilisation of the lift, the trapping of himself and two security officers, and the need to get someone to release them.
12 By taking into account those matters, he did not sentence on the basis of any additional contumacious conduct beyond the conduct that caused the banging sounds that was the subject of the original oral charge. For these reasons, Grounds 1 and 2 must fail.
Procedural fairness (Grounds 3 and 4)
13 When a judge or a magistrate decides to deal with someone for contempt in the face of the court, he or she has a duty to afford that person procedural fairness. That duty requires the judge or magistrate to give the person an opportunity to deny the contempt or to show cause why he or she should not be dealt with for contempt. The judge or magistrate should set out the charge so that the defendant understands it, afford the defendant an opportunity to consider the charge and, if necessary, seek legal advice, an adjournment, or further particulars, and give the defendant an opportunity to state whether he or she pleads guilty or not guilty to the charge: Zukanovic v Magistrates Court of Victoria at Moorabbin [2011] VSC 141, 32 VR 216; Stanley v Tasmania [2015] TASCCA 24. The learned magistrate did not take any of those steps. It follows that he denied the applicant procedural fairness.
14 Counsel for the respondent submitted that that denial of procedural fairness had not resulted in any substantial miscarriage of justice and sought to rely on the "proviso" provision in s 110(2)(ab) of the Justices Act. I have decided it would be inappropriate to dismiss the motion to review under that provision because of the learned magistrate's conduct in acquiring information from somebody about what happened to the lift.
15 It is not clear how the learned magistrate learned that the lift had been immobilised, that the applicant and others had been trapped in it, and that someone had had to come to the court and release
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them. He may have spoken to one or more security officers or other court staff. Nobody knows what impact any such conversation or conversations might have had on his decision to convict the applicant and sentence him to two months' imprisonment.
16 A judicial officer is disqualified on the basis of apprehended bias if, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question to be decided: Webb v The Queen (1994) 181 CLR 41 at 67; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [33].
17 In Re JRL; Ex parte CJL (1986) 161 CLR 342, the High Court held that a judge of the Family Court of Australia was disqualified from completing the hearing of custody proceedings as a result of her having conducted a private conversation with a court counsellor. The majority (Gibbs CJ, Mason and Brennan JJ) held that the actions of the counsellor and the judge gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the issue.
18 In this case there appears not to have been any dispute as to the essential facts. The applicant had banged on a door, resulting in the lift becoming immobilised with him and others trapped in it, and in someone having to attend to release them. But a fair-minded and fully informed lay observer might have entertained a reasonable apprehension that the learned magistrate might not bring an impartial and unprejudiced mind to the questions of conviction and sentence. The learned magistrate might, for example, have been influenced by something not discussed in open court, such as the emotional state of one of the security officers trapped in the lift.
19 The learned magistrate was in the roles of complainant, prosecutor, witness, judge and jury. It was open to him to discuss the facts as he understood them to be with a view to identifying any disputes as to those facts, just as a prosecutor after a plea of guilty states the facts asserted by the Crown before the defendant has an opportunity to dispute any factual assertions. However the learned magistrate erred by having a private conversation with, or privately obtaining information from, one or more individuals with information that was not originally within his knowledge. Grounds 3 and 4 must therefore succeed.
Conclusion
20 For these reasons the motion to review is allowed, the conviction and sentence are set aside, and the matter is remitted to the Magistrates Court for hearing and determination by another magistrate.
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