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 that
you have failed to show cause why you should not be
punished for the contempt in alleging that I, as a
judicial officer, have spirited documents away to

prevent a fair trial of you.

DEFENDANT: I haven't finished yet.

BENCH: You are formally convicted. The conviction is recorded. And I sentence that you be imprisoned for a period of seven days from today. Appropriate warrant will issue in relation to the contempt. So now-----

DEFENDANT: Can I appeal that, Your Honour? I wish to appeal that decision.

BENCH: You certainly may appeal that.
DEFENDANT: Beg your pardon?

BENCH: You are sentenced to seven days imprisonment."

In the affidavit on which the order nisi was obtained, the
first ground taken is that the procedure adopted denied the
appellant natural justice in that he was not given proper
opportunity of answering the charge of contempt. There is a
question whether, at the stage when the magistrate made the
critical observation about the appellant's submissions to
which observation I have briefly alluded, the appellant had
concluded what he had to say, in response to being called
upon; but the transcript appears to be consistent with the
appellant having been interrupted in the course of making
his submission, rather than having concluded the
submissions.
The magistrate then went on to say, in effect, that the
imputation directed at him by the appellant was not correct
and that he had never done such a thing as the appellant
alleged. The appellant responded, "I haven't finished yet",
but he was promptly convicted and sentenced to imprisonment.
It is not the law that a person called on to show cause
under section 40 of the Justices Act may address the court
endlessly, but there is on the face of these proceedings
evidence that the appellant was unable to say all that he
wished to say in defence of his position. The matter would
perhaps have a different outcome if it seemed clear that
what the appellant had submitted, before the magistrate
intervened with a critical remark as I have mentioned, was
immaterial; but it was not of that character. What the
appellant was doing was making a submission to the effect
that his criticism of the magistrate was a justified one.
With reference to the common law of contempt, it has been
suggested that there is a lack of authority on the position
which arises when impropriety on the part of a court has
been alleged and the truth of the allegation is in issue:
see Howard v. Gallagher (1989) 85 A.L.R. 495 at 500,
referred to in Nationwide News Pty Ltd v. Wills (1992) 177
C.L.R. 1 at 38. There may be a question as to whether, in
this situation, a charge of contempt must be supported by
evidence that the accusation against the court, said to
constitute a contempt, was untrue. But it is unnecessary to
discuss that aspect for here, what the appellant was putting
to the magistrate when he was apparently interrupted was at
least potentially material, as indicating the ground upon
which the appellant had made his accusation; that was
relevant to penalty, if nothing else.
In MacGroarty v. Clauson 167 C.L.R. 251, a similar
provision, section 105(1) of the District Courts Act 1967
was discussed by the High Court; the Court remarked that it
has long been settled that "no person should be punished for
contempt of Court, which is a criminal offence, unless the
specific offence charged against him be distinctly stated,
and an opportunity of answering it given to him". The
Court went on further to emphasise, subsequently, the
necessity for an adequate opportunity of answering the
charge. Here the conclusion which the record appears to me
to compel is that only a limited opportunity of answering
the charge was afforded, the appellant having been cut off
when in the course of making a submission, attention to

which could have influenced the outcome.

This Court is, of course, concerned to ensure that
magistrates are treated with proper respect and has more
than once expressed that concern. The place of the
Magistrates Court in the hierarchy of courts in this State
entitles it to no less respect than is accorded to any other
court. But in the present case the conclusion which must be
reached is that there was not a proper observance of a
precondition of a conviction under section 40, namely the
affording of an adequate opportunity to make a submission in
answer to the charge and the appeal must be allowed.

DAVIES JA: I agree.

DERRINGTON J: I agree.

DAVIES JA: The orders are appeal allowed; conviction quashed. Anything further you want to say, Mr Mathews?

APPELLANT: Yes, Your Honour. As to costs, I have expended the cost of the fling and I would ask to be reimbursed for that.

DAVIES JA: I think the authorities are against you on that,

Mr Mathews.

APPELLANT: I beg your pardon, Your Honour?

DAVIES JA: I say, I think the authorities are against you on that.

PINCUS JA: Have you had a look at the cases? They seem to
say that it is quite unusual to order costs against a
Magistrate. That is what the law is.

APPELLANT: In this case, Your Honour, I have been - six days of my life have been taken from me.

DERRINGTON J: This has nothing to do with costs.

APPELLANT: Well, if the Magistrate is going to be able to just with impunity - and it would seem that there are a number of stages at which he has - not just on the grounds that I have been denied natural justice. He didn't give me an opportunity to apologise - did not give me an opportunity in terms to apologise. There are many cases stated of which he has - this has derailed - this whole process has derailed - all independent - and the chance of all those happening as they did is infinitesimal.

I would suggest that it would seem that Mr Smith SM had wanted to send me to gaol.

DAVIES JA: Yes.

APPELLANT: That he had wanted to send me to gaol and that this is what he has done and he can just walk away scot- free. I have suffered, he has done me wrong, and it has cost me still $155 plus my time plus everything else and I have suffered. Now, if the Courts of common law do not uphold my rights - I mean, I have a right not to be imprisoned wantonly.

Now, I don't know whether this is the occasion which I can claim damages or whether that would be on another occasion.

DAVIES JA: Nothing to do with this case.

APPELLANT: So, in fact, this case would not prevent my bringing an action for damages.

DAVIES JA: You will have to get some legal advice on that,
Mr Mathews.

APPELLANT: I mean, this is not the occasion in which to bring that.

DAVIES JA: No, this isn't the occasion, certainly isn't the occasion.

APPELLANT: And I couldn't have joined it with this at that time - at an earlier time - but as it will appear, it costs me $155 as well as six days and Mr Smith can - can have a drink and congratulate himself and think well he has taught me a lesson.

DAVIES JA: Thank you. The Court does not propose to make
any

order as to costs.

-----