Mansell v MignaccaRandazzo
[2013] WASCA 262
•20 NOVEMBER 2013
MANSELL -v- MIGNACCARANDAZZO [2013] WASCA 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 262 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:72/2013 | 1 NOVEMBER 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 20/11/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAMERON JAMES MANSELL HIS HONOUR MAGISTRATE G MIGNACCARANDAZZO |
Catchwords: | Criminal law Contempt of court Magistrates Court Act 2004 (WA), s 15(1)(e) Appellant charged with stealing offences Appellant refused to comply with direction of court to appear by video link Whether contempt 'in the face of the court' |
Legislation: | Magistrates Court Act 2004 (WA), s 15(1)(e) |
Case References: | Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 Mishal v The Queen [2001] WASCA 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSELL -v- MIGNACCARANDAZZO [2013] WASCA 262 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
HIS HONOUR MAGISTRATE G MIGNACCARANDAZZO
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
Citation : MANSELL -v- MIGNACCA-RANDAZZO [2013] WASC 66
Catchwords:
Criminal law - Contempt of court - Magistrates Court Act 2004 (WA), s 15(1)(e) - Appellant charged with stealing offences - Appellant refused to comply with direction of court to appear by video link - Whether contempt 'in the face of the court'
Legislation:
Magistrates Court Act 2004 (WA), s 15(1)(e)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Mishal v The Queen [2001] WASCA 328
1 JUDGMENT OF THE COURT: This is an application for leave to appeal against a decision of Hall J who dismissed an appeal by the appellant against his conviction in the Magistrates Court for contempt of court.
Background
2 The appellant is and was at the material times a serving prisoner, having been convicted of murder and sentenced to life imprisonment on 8 November 2011. Following his conviction and imprisonment, charges of stealing were preferred against him and these were listed for mention in the Perth Magistrates Court on 15 December 2011.
3 On 15 December 2011 the stealing charges were called on for mention before Magistrate Hawkins. A video link to Hakea Prison, where the appellant was then incarcerated, was established but the appellant did not appear. A prison officer then appeared on the link and stated that the appellant was refusing to come into the video room.
4 The appellant was represented in court by a lawyer, Mr King. Mr King told the court that he had not had an opportunity to speak to the appellant that day but he understood the appellant was aware that he was to appear via video link. The matter was then adjourned to the following day to enable Mr King to obtain instructions from the appellant. Magistrate Hawkins directed that the appellant appear by video link at the adjourned hearing on 16 December 2011.
5 On 16 December 2011, the matter was called on before Magistrate Mignacca-Randazzo and a video link again established to Hakea Prison, at 10.51 am. The appellant did not appear. The superintendent of Hakea Prison, Mr Richard Butcher, then appeared on the link and stated that the appellant was in the waiting area but was refusing to attend. Mr Butcher said he had spoken to the appellant personally and explained to him that he was in breach of the order of the court. He said he had given the appellant a direct order to attend, but he had still refused to attend.
6 The appellant was again represented in court by Mr King who told the magistrate that he had spoken to the appellant since the events of the previous day and explained to him that he needed to appear, but he had been instructed by the appellant that he would continue to refuse to appear on video link as he wished to appear in court in person.
7 Magistrate Mignacca-Randazzo then made a formal direction in (relevantly) the following terms:
I direct that Mr Cameron James Mansell physically attend and present himself in the video link room at Hakea Prison at the time that the court establishes a video link from the Perth Central Law Courts to Hakea Prison on 16 December 2011 at not before 11.30 am (ts 16.12.11, page 5).
8 The matter was recalled shortly after 11.30 am. The link to Hakea Prison was re-established. The appellant did not appear. A prison officer stated that the appellant had declined to come to the video link room. The superintendent then appeared and said (relevantly):
MR BUTCHER: … I've provided your direction to Mr Mansell that he present himself in person in court. He has been given an opportunity to speak with his legal adviser. Following that briefing I have seen Mr Mansell and he continues to refuse to present himself to court, sir.
HIS HONOUR: Did he appear to understand the direction that you conveyed to him.
MR BUTCHER: Yes, he did (ts 16.12.11, page 7).
9 Magistrate Mignacca-Randazzo asked Mr King whether he had had an opportunity to speak to the appellant. The following exchange then occurred:
MR KING: … I explained to him the direction that you had given and he informed me that he doesn't mean to show contempt for the court; quite the opposite, he considers the matters very serious which is why he wishes to be here. He, as your Honour may be aware, was recently convicted of matters in the Supreme Court, and following on from that obviously takes any court matters very seriously and wishes to be present in order that he can speak to his lawyer and properly observe what's actually going on in the court and that, as I understand it, is the full basis of his ...
HIS HONOUR: Do I understand you to be telling me that he has understood the direction that I have given?
MR KING: Yes sir.
HIS HONOUR: You tell me that he is not intending any disrespect. Is that what you are saying?
MR KING: Yes sir.
HIS HONOUR: You have given him advice in relation to what I have directed?
MR KING: Yes sir (ts 16.12.11, page 8).
10 Magistrate Mignacca-Randazzo stated that a notice would be prepared calling upon the appellant to show cause why he should not be dealt with for contempt. The hearing was then listed for 22 December 2011. An order for the appellant to be brought up from prison on that day was made. The stealing charges were also adjourned for mention on that day.
11 A notice was prepared and served on the appellant, alleging (in substance) that, on 16 December 2011, the appellant had committed contempt 'in the face of the court', contrary to s 15(1)(e) of the Magistrates Court Act 2004 (WA), by failing to comply with a lawful direction to physically attend and present himself to the video link room at Hakea Prison and appear by video link before the court on the stealing charges. The notice stated that the alleged contempt would be dealt with summarily at 9.30 am on 22 December 2011.
12 On 22 December 2011 the appellant appeared in person, represented by Mr King. A certified copy of the transcript of the proceedings of 16 December 2011 was received into evidence without objection. The appellant then gave evidence in his defence, consisting of the following:
MR KING: Mr Mansell, on the date referred to, 16 December last week, can you please inform the court what your reasons were for the behaviour that you exhibited.
MR MANSELL: I applied to the court directly, and indirectly through my solicitors, to appear in person which I always have insisted on doing in any matters that are before the court. I have several reasons for that request. Firstly, any appearance before the court is a very important one, and I feel I should be there. I should have the opportunity to be there in person. It gives me an opportunity to speak with my lawyers, and fully understand exactly what's happening in the matters before the court. It's very difficult via video-link. You don't get to obviously talk to your lawyers directly and take in exactly what's going on. From custody, it's very difficult to sometimes catch your lawyers because they are often in court by phone and when you write to them, the mail process, it can take two weeks to get a written response so I feel it's a good way to communicate with the lawyers, and it gives you an immediate understanding of what's occurring in the court. So that's why I wrote to the court independently and insisted on being there in person. This is something that was before the courts over 12 months ago so it's just not new before the court (ts 22.12.11, page 8).
13 The cross-examination was similarly brief. The appellant was asked, and confirmed, that there was no physical impediment, illness or duress that prevented him from attending on the video link on 16 December 2011.
14 The appellant also tendered three letters he had written to the court. Two of the letters were dated 20 December 2011 and were described as letters of apology. They were addressed to Magistrate Hawkins and Magistrate Mignacca-Randazzo respectively. In the letter to Magistrate Mignacca-Randazzo the appellant stated:
I write this letter with the intent to offer a sensible explanation for not appearing before you as directed, it is not a letter intended to soften any consequences that I may suffer if your Honour finds I was in contempt, I am respectfully in the hands of the court. [emphasis in original]
15 The appellant went on in the letter to express the view that a person in custody should have a right to choose to appear in person before the court. He said that to appear via video link in prison clothes would be prejudicial to how he was perceived. He also said that the stealing charges were an abuse of process.
16 Mr King provided the magistrate with written submissions in which, apart from issues of penalty, it was stated that the appellant did not intend to show any contempt or disrespect to the court but that the charges against him were serious and he wished to appear before the court personally.
17 The magistrate concluded that contempt in the face of the court had been proven beyond reasonable doubt. He considered that the reasons advanced in the appellant's evidence did not disclose any recognisable defence and described the appellant's letter of apology as being 'sugar-coating on [the appellant's] underlying defiance of the court's authority' (ts 22.12.11, page 14).
18 His Honour convicted the appellant and sentenced him to 1 month's imprisonment. As the appellant was serving a life sentence, the sentence imposed by his Honour necessarily had to be served concurrently with the existing sentence: s 88(5), Sentencing Act 1995 (WA).
19 The appellant appealed against his conviction. He acted in person in that appeal. In the appeal notice, the grounds (the original grounds) were, in effect, as follows:
1. The appellant was not in the court and could not be seen or heard by the magistrate, so he could not have been in contempt 'in the face of the court';
2. The appellant was entitled to appear in court personally or had a genuine belief that he was entitled to appear in court personally;
3. The appellant should not have been convicted of contempt in light of his letter of apology.
20 In addition, annexed to a subsequent affidavit of the appellant, dated 8 October 2012, were five further grounds (the further grounds) which (omitting the particulars) were as follows:
1. The verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be lawfully supported.
2. The verdict of guilty on which the conviction is based should be set aside because, an accused has a right to fair trial which was not afforded to him.
3. The verdict of guilty on which the conviction is based should be set aside because, His Honour made several errors at law in his discretion on the way in which the trial was conducted [original emphasis].
4. The verdict of guilty on which the conviction is based should be set aside because, there is not sufficient criminal elements to support the charge.
5. The verdict of guilty on which the conviction is based should be set aside because, the irregular nature of the charge and the trial is unreliable, and in view of all the circumstances the conviction should be quashed.
21 At the hearing before the primary judge, the appellant sought to add a further ground that there was a miscommunication of the direction by the magistrate of 16 December 2011, Mr Butcher having told the appellant that he was to appear personally, by which the appellant understood that he was to appear in person before the magistrate. The primary judge refused to allow the additional ground, finding that it had no prospect of success. Not only had no such contention been advanced before the magistrate on the hearing of the contempt charge but it was contrary to the appellant's evidence and the way in which the appellant's case had been conducted before the magistrate.
22 The primary judge dismissed the appeal.
The reasons of the primary judge
23 The primary judge rejected the contention that the appellant could not be in contempt 'in the face of the court' because he was not in court and could not be seen or heard by the magistrate. His Honour found that s 15(1)(e) of the Magistrates Court Act referred to acts which interfered with the conduct of proceedings which were in progress or imminent. It did not require that the acts be seen or heard by the judicial officer. The direction to appear by video link was a lawful direction and the appellant's non-compliance with it interfered with the conduct of the continuing proceedings relating to the stealing charges. The appellant's conduct therefore fell within s 15(1)(e). His Honour accordingly dismissed ground 1 of the original grounds and ground 3 of the further grounds.
24 His Honour found there was no substance in ground 2 of the original grounds and ground 4 of the further grounds. The appellant's alleged belief that he was entitled to appear in person rather than by video link was mistaken. It was a mistake of law and could not excuse his non-compliance with the magistrate's express direction. Nor in the circumstances could the appellant have believed that he had a reasonable excuse not to comply with the direction.
25 In relation to ground 3 of the original grounds and ground 1 of the further grounds, the primary judge found that an apology was not a defence to the allegation of contempt but was relevant only to penalty. Moreover, it was open to the magistrate to find, as he did, that the letters were not a sincere apology but merely an attempt to place the appellant's defiance in a good light.
26 The primary judge also rejected grounds 2 and 5 of the further grounds of appeal. The appellant's substantive contention was that aspects of the summary proceedings were unfair. His Honour noted that proceeding summarily was not the only option available to the magistrate, who could have referred the matter to the Attorney-General under the Magistrates Court (General) Rules 2005 (WA), r 32(2) and r 33. While his Honour considered that that might have been the preferable course, the fact that it was not taken did not invalidate the proceedings. The primary judge did not accept the appellant's contention that the fact the magistrate had initiated the charge established bias or a reasonable apprehension of bias on the part of the magistrate. Nor was there anything else in relation to the proceedings which was capable of doing so. His Honour considered that by the steps the magistrate took in dealing with the matter, the appellant was given a proper opportunity to answer the charge.
27 The particulars to ground 5 of the further grounds of appeal were also read by the primary judge as suggesting that the penalty imposed by the magistrate was excessive. While that was not directly raised by the grounds of appeal, his Honour dealt with, and rejected, any such suggestion. He noted that the maximum penalty for contempt in the Magistrates Court was a fine of $12,000 or 12 months' imprisonment. He also referred to the range of sentences considered in Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425. His Honour concluded that in the circumstances a sentence of one month's imprisonment was well within the proper exercise of the sentencing discretion.
Grounds of appeal
28 The grounds of appeal to this court are in identical terms to those contained in the affidavit of the appellant dated 8 October 2012, described above as the 'further grounds'.
Disposition of the appeal
29 With one exception, the appellant put to this court the same submissions he put to the primary judge. The exception was a submission not referred to in the grounds of appeal but raised orally by the appellant on the hearing of the application for leave to appeal. The appellant contended that, on 22 December 2011, the magistrate said that he had referred the matter to the Attorney General on 16 December 2011. Accordingly, the appellant argued, the magistrate could not hear the proceedings for contempt summarily. The matter having been referred to the Attorney General, proceedings for contempt could only be brought by the Attorney General, if he saw fit to do so.
30 On the hearing before this court, the appellant was unable to refer to the passage in the transcript containing such a statement by the magistrate. The appellant was therefore given a period of 24 hours after the hearing to inform the court of the relevant pages of the transcript. The appellant subsequently wrote to the court by a letter dated 1 November 2013 (received on 5 November 2013) in which he provided no transcript references but said, apparently by way of explanation, that the transcripts of the hearings before the magistrate were in 'the prisons storage' and he 'will not be able to access them in a timely manner'. No transcript references have since been provided.
31 In fact, an examination of the transcript of the proceedings before the magistrate on 22 December 2011 reveals nothing to the effect alleged by the appellant. There is no suggestion by the magistrate that the matter had been referred to the Attorney General. Nor is there anything in the transcript of 16 December 2011 which might suggest that the matter had been, or was to be, referred to the Attorney General. There is no substance in this additional contention.
32 We should add that in the letter of 1 November 2013 the appellant went on to make further submissions in support of the appeal. The appellant required leave to make any further submissions: see Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246, 257 - 258; Mishal v The Queen [2001] WASCA 328 [40]. He did not have leave and he did not seek it. If leave had been sought, we would have refused it. Apart from any other consideration, there is nothing in the further submissions which assists the appellant's case.
33 As mentioned earlier, the grounds of appeal to this court were in identical terms to those before the primary judge and the appellant's written and oral submissions simply repeated, in substance, what had been put to his Honour. The appellant has not identified any error by the primary judge and in our respectful opinion his Honour did not fall into error. We have set out the substance of his Honour's reasons above. It is unnecessary to canvass them any further. Suffice it to say that his Honour correctly dismissed the appeal for the reasons he gave. This appeal has no prospect of success.
Conclusion
34 Leave to appeal is refused and the appeal is dismissed.
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