Mathews v Smith - [1997] QCA 365

COURT OF APPEAL

[1997] QCA 365

DAVIES JA PINCUS JA DERRINGTON J

Appeal No 9992 of 1996

RUSSELL GORDON HAIG MATHEWS Appellant

and

WILLIAM JOHN SMITH SM

Respondent

BRISBANE
..DATE 11/09/97
PINCUS JA: This is an appeal by way of order to review.
On 4 October 1996 the appellant was convicted by a
Magistrate of contempt of court. The proceeding began with
a statement by the Magistrate as follows:

"Mr Mathews, just prior to the tapes being placed on,
you made an allegation that I, as a judicial officer,
received documents on a previous date and spirited them
away to prevent a fair trial. This Court is gravely
insulted by that accusation, as a judicial officer, and
I will now formally charge you with contempt, pursuant
to the provisions of section 40 of the Justices Act
1886. I now call upon you to prove why you should not
be convicted for such contempt."

The reference to the court having been insulted was no doubt to the terms of section 40(1)(a) of the Justices Act 1886 which, so far as relevant, reads as follows:

"A person who -
(a) wilfully insults a justice ... during his or her
sitting as, or, as the case may be, attendance in a
Magistrates Court or during his or her sitting or, as
the case may be, attendance in any examination of
witnesses in relation to an indictable offence ... may
by oral order of such court ... be excluded from such
court or examination and, whether the person is so
excluded or not, may be summarily convicted by such
court or justice of contempt."

After the magistrate made the statement I have quoted, the
appellant addressed briefly in a way which was only
partially recorded; the magistrate responded by, in effect,
inviting the appellant to confine himself to the matter of
contempt. The appellant then began to address the
magistrate further, saying in effect that documents had been
brought to the Magistrates Court from the Federal Court and
the magistrate's clerk had taken the documents "out the
back". The appellant then said:

"Now, what I mentioned to you later was - are they
Federal Court documents - or at that time I said, 'Is
that the Federal Court documents?'. You stated that it
was nothing to do with me - none of my business.
Now, when I had subpoenaed those documents - and those documents were very important to my defence on this matter."

The record shows that the magistrate then said, "Mr Mathews, I'll indicate one thing to you", and his Worship made a critical remark relevant to the submissions which the appellant had made. The record then goes on as follows:

"BENCH: I can indicate to you clearly that I have not,
as a judicial officer, ever spirited documents away to
prevent a fair trial of a person before me. And I can
indicate to you that any communication that I make with
you in any judicial proceeding is taped. I find…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mathews v Smith

Details

AGLC: Mathews v Smith [1997] QCA 365
Case: [1997] QCA 365
Decision Date: 11/09/1997

CaseChat Overview and Summary

In the case of Mathews v Smith, the appellant, Russell Gordon Haig Mathews, appealed against his conviction for contempt of court by a magistrate, as per the Justices Act 1886. The central issue was whether the procedure adopted by the magistrate denied Mathews natural justice by not providing him with a proper opportunity to answer the charge of contempt. The Court of Appeal found that Mathews was not given an adequate opportunity to make a submission in answer to the charge, as he was cut off while making a potentially material submission.

The court noted that it is well established that a person charged with contempt must be given a distinct statement of the offence and an opportunity to answer it. The High Court had previously emphasized the necessity for an adequate opportunity to answer a charge in a similar context. In this case, the transcript showed that Mathews was interrupted while making a submission, which could have influenced the outcome. The Court of Appeal concluded that the magistrate did not properly observe this precondition of a conviction under section 40, and the appeal was allowed, with the conviction quashed.

The court also addressed Mathews' request for reimbursement of costs incurred and damages for the time lost. The judges found that the authorities were against Mathews on both counts, as it is unusual to order costs against a magistrate, and damages could not be claimed in this context. The court declined to make any order as to costs.

Orders