Mokbel v County Court of Victoria
[2021] VSC 191
•30 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02871
| ANTHONY MOKBEL | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| OFFICE OF PUBLIC PROSECUTIONS | Second Defendant |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2020 |
DATE OF JUDGMENT: | 30 April 2021 |
CASE MAY BE CITED AS: | Mokbel v County Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 191 |
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JUDICIAL REVIEW – Plaintiff pleaded guilty to contempt pursuant to s 134 of the Magistrates’ Court Act 1989 – Plaintiff sentenced to 14 days’ imprisonment – Plaintiff appealed sentence to the County Court pursuant to s 254 of the Criminal Procedure Act 2009 – Judge struck out appeal for want of jurisdiction – No error demonstrated – A proceeding under s 134 of the Magistrates’ Court Act is not ‘a criminal proceeding conducted in accordance with Part 3.3’ of the Criminal Procedure Act.
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES – Whether right to have sentence reviewed by a higher court in accordance with law in s 25(4) of the Charter of Human Rights and Responsibilities Act 2006 includes for a right of de novo appeal for a person convicted and sentenced under s 134 of the Magistrates’ Court Act – Meaning of ‘review’ is derived from its statutory context – Right does not extend to right of de novo appeal.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Condon QC | Sarah Tricarico Lawyers |
| For the Second Defendant | Mr B Sonnet | Office of Public Prosecutions |
HER HONOUR:
The plaintiff was summonsed to appear at a compulsory examination hearing in the Magistrates’ Court of Victoria. He did appear but refused to answer any questions. He was charged and convicted by the magistrate of contempt of court and sentenced to 14 days’ imprisonment. The plaintiff lodged an appeal against the order of imprisonment to the County Court. That appeal was struck out for want of jurisdiction.
By originating motion dated 7 July 2020 the plaintiff seeks judicial review of that decision.
The application raises the question of whether a proceeding for contempt of court under s 134 of the Magistrates’ Court Act 1989 (MCA) is a summary criminal proceeding which attracts the right of appeal in s 254 of the Criminal Procedure Act 2009 (CPA).
For the reasons that follow, the answer is no.
History of Proceedings
The plaintiff was summonsed to appear at the Magistrates’ Court at Melbourne for the purposes of a compulsory examination hearing[1] on 5 February 2020.
[1]Part 4.3 of the CPA governs the compulsory examination hearing procedure.
That hearing concerned an incident at a boxing event in March 2019 which resulted in four persons being charged with murder. The plaintiff had attended the event. He refused to make a police statement about the incident.
On 5 February 2020 the plaintiff attended court. He was represented by counsel.[2] He was sworn as a witness.[3] Thereafter he refused to answer any question put to him by the prosecutor. His counsel informed the court that the plaintiff intended to remain mute.
[2]CPA, s 106(1)(a).
[3]CPA, s 106(2)(a)
As a consequence of the plaintiff’s failure to answer lawful questions, the presiding magistrate charged him with contempt of court.[4]
[4]MCA, s 134(1)(b). A charge sheet was prepared pursuant to Regulation 17 of the Magistrates’ Court Criminal Procedure Rules 2019.
The plaintiff did not dispute the contempt.
On 21 February 2020 the magistrate conducted a hearing at which the plaintiff pleaded guilty to the contempt. He was convicted and sentenced to 14 days’ imprisonment.[5]
[5]MCA, s 134(3).
The plaintiff immediately lodged an appeal against the order of imprisonment to the County Court pursuant to s 254 of the CPA. He was released on bail pending the appeal.
On 28 April 2020 the appeal was listed in the County Court before Judge Fox.
At the hearing the second defendant raised a preliminary issue. It was submitted that the County Court did not have jurisdiction to hear an appeal against conviction or sentence in respect of a contempt charge found proven in the Magistrates’ Court.
On 6 May 2020 Judge Fox struck out the appeal for want of jurisdiction. Her Honour further stayed the Order to strike out the appeal to allow the plaintiff to initiate judicial review proceedings to this Court.[6]
[6]That stay was initially granted for 60 days. On 1 July 2020, her Honour extended the stay for a further 10 days.
The current proceedings were filed on 7 July 2020.
On 19 August 2020, the plaintiff was admitted to bail in relation to the proceedings.
Statutory Provisions
It is convenient to first consider the relevant statutory provisions.
The Magistrates’ Court has jurisdiction to hear and determine all summary offences.[7] That jurisdiction is additional to any other jurisdiction given to it with respect to a criminal proceeding by or under any Act other than the MCA.[8]
[7]MCA, s 25(1).
[8]MCA, s 25(2).
Section 134 of the MCA is in the following terms.
134 Contempt of court
(1) A person is guilty of contempt of court if—
(a)having been summoned as a witness and having been given or tendered any conduct money required to be given or tendered, the person refuses or neglects without sufficient cause to attend or to produce any documents or things required by the summons to be produced; or
(b)having been summoned as a witness and having attended as required, the person refuses to be sworn or affirmed or to answer any lawful question; or
(c)being examined as a witness or being present in court and required to give evidence, the person refuses to be sworn or affirmed or to answer any lawful question or, without sufficient excuse, to produce any documents or things that the person has been or is required to produce; or
(d)being present in court and required to give evidence, the person wilfully disobeys an order made under section 127; or
(e)in the opinion of the magistrate the person is guilty of wilful prevarication.
(2)In the case of a contempt referred to in subsection (1), the Court may direct the arrest of the person and, on the person being brought before the Court, the Court must cause him or her to be informed of the contempt with which he or she is charged and adopt any procedure that the Court thinks fit.
(3)If the Court finds that the person is guilty of a contempt referred to in subsection (1), it may order—
(a)that the person be sentenced to a term of imprisonment of not more than 1 month; or
(b)that the person be fined not more than 5 penalty units and that in default of payment of the fine within a specified time the person be imprisoned for a term of not more than 1 month.
(4) Without limiting subsection (3)—
(a)if a person commits a contempt referred to in subsection (1) at a committal proceeding, the Court may adjourn the proceeding for a period of not more than 8 clear days and section 331 of the Criminal Procedure Act 2009 applies as if the person were an accused in a criminal proceeding; and
(b)if at the adjourned hearing the contempt is repeated, the Court may—
(i) proceed under paragraph (a); or
(ii)punish for the contempt in any manner provided in subsection (3).
(5) A person is guilty of contempt of court if—
(a)having been summoned in accordance with the Rules to attend at a sitting of the Court to be orally examined by the appropriate registrar concerning the failure to comply with an order for the payment of money and having been given or tendered any conduct money required to be given or tendered, the person refuses or neglects without sufficient cause to attend; or
(ab)having been summoned under Part 6 of the Fines Reform Act 2014 to attend at the Court to be orally examined by a registrar and having been given any conduct money required to be given or tendered, the person refuses or neglects without sufficient cause to attend; or
(b)having been so summoned and having attended as required, the person refuses to be sworn or affirmed or to answer any lawful question; or
(c)in the opinion of the appropriate registrar the person is guilty of wilful prevarication.
(6)In the case of a contempt referred to in subsection (5), the appropriate registrar must report the contempt to the next practicable sitting of the Court constituted by a magistrate at the proper venue and the Court may direct the arrest of the person and may punish for the contempt as in the case of a contempt referred to in subsection (1).
(7)If a contempt referred to in this section also constitutes a contempt of court committed in the face of the Court, the Court may deal with the contempt under this section or under section 133, as it thinks fit.
(8)The Bail Act 1977 applies, with any necessary modifications, to and in respect of a person brought before the Court under this section as if the person were accused of an offence and were being held in custody in relation to that offence.
The only powers of appeal within the MCA are in Division 4 of Part 5, which concern civil proceedings.[9] Part 6.1 of the CPA governs appeals from the Magistrates’ Court to the County Court with respect to summary criminal proceedings.
[9]Section 109 establishes the procedure whereby a party to a civil proceeding may appeal to the Supreme Court on a question of law from a final order of the Magistrates’ Court in that proceeding.
Section 254 of the CPA is in the following terms.
254Right of appeal
(1)Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a) the conviction and sentence imposed by the court; or
(b) sentence alone.
(2)If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Trial Division of the Supreme Court.
‘Sentence’ is defined in s 3 of the CPA to include, relevantly, the recording of a conviction.
Question Arising from Statutory Provisions
The issue arising in this matter is whether or not the s 134 MCA procedure adopted by the magistrate, which empowered him to ‘adopt any procedure that the Court thinks fit’ was a ‘criminal proceeding conducted in accordance with Part 3.3’ of the CPA.
Ruling of Judge Fox
Her Honour articulated that the Magistrates’ Court is invested with jurisdiction as to contempt by ss 133 and 134 of the MCA. If the contempt alleged falls within both sections, the Court may deal with the contempt under either section ‘as it thinks fit’.[10] Both sections give that court the power to ‘adopt any procedure that the Court thinks fit’.[11] Both sections require the alleged contemnor to be informed of the contempt with which he or she is charged.
[10]MCA, s 134(7).
[11]MCA ss 133(2) and 134(2).
Stating that the question of jurisdiction to hear the appeal was not fact dependent, but rather a question of legal power, her Honour concluded as follows:
In my view here, whilst the proceeding did mirror or mimic what may be described as a ‘summary plea hearing’, the hearing was conducted in accordance with the procedure provided for in s 134 of the MCA. The Magistrate conducted the proceeding in the way the Court thought fit. It is understandable that the Magistrate adopted a procedure that closely approximated a summary plea hearing, as that would be a familiar way to proceed and a means of ensuring procedural fairness was afforded. However, that does not convert a proceeding conducted pursuant to s 134 of the MCA into a proceeding conducted pursuant to Part 3.3 of the CPA. Thus, in my view, the proceeding conducted in the Magistrates’ Court was not a proceeding conducted in accordance with Part 3.3 of the CPA.[12]
[12]Ruling, Judge Fox, 6 May 2020, [47].
Submissions of the Parties
The Plaintiff
The plaintiff submitted that the phrase ‘adopt any procedure that the court thinks fit’ is s 134(2) of the MCA must be read as being subject to the CPA.
A number of bases were advanced for this contention.
First, the phrase is already implicitly constrained by procedural fairness.[13] A further implicit constraint must arise because the s 134 MCA offence is a summary criminal offence. Procedural fairness as to summary criminal proceedings is reflected in Part 3.3 of the CPA. The term ‘criminal proceeding’ is undefined in the CPA. Therefore wherever that term is used in that Act, it includes a proceeding under s 134 of the MCA. That is, by implication, that proceeding is a ‘summary criminal proceeding as contemplated under Part 3.3’ of the CPA.
[13]Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2001] VSC 141 (‘Zukanovic’).
It was submitted that the phrase ‘adopt any procedure that the court thinks fit’ was a ‘nod to history’ of the inherent power of a superior court to deal with contempt translated to a court of statute.
Second, the magistrate adopted a procedure that was akin to a summary criminal procedure under Part 3.3 of the CPA. It must be taken to be a conscious choice. In other words, the magistrate elected to conduct the proceedings under Part 3.3.
Third, the right of a person convicted of a criminal offence to ‘have the conviction and sentence imposed in respect of it reviewed by a higher court in accordance with law’ in s 25(4) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) cannot, vis-à-vis s 134 of the MCA, be limited to a right of judicial review. It must also extend to a right of appeal.
This was argued first as an issue of fairness.
Noting that the pathways of judicial review and appeal are distinct,[14] it was not argued that the s 25(4) Charter right always gave a convicted person a right to an appeal, still less a de novo appeal. Rather, it was put that conviction of every summary offence in the Magistrates’ Court other than of contempt under s 134 (or s 133) gave rise to a right of appeal. It was unfair that a person liable to imprisonment for conviction of contempt had inferior rights.
[14]Rees v County Court & Ors (2011) VSC 67, [15].
The matter was also argued as a question of construction.
The CPA and, specifically, the right to de novo appeal in s 254, post-dates the Charter. The statement of compatibility with respect to the Criminal Procedure Bill 2008[15] contains numerous references to rights of review and appeal. Particular reliance was placed upon the following statement when the Attorney-General:
The bill provides comprehensive appeal rights to the County Court from the Magistrates’ Court against conviction and sentence on a de novo basis. The superior court takes a fresh plea and rehears all of the evidence in this process. Clause 283 provides an additional avenue of appeal to the Court of Appeal for a person sentenced to a term of imprisonment on appeal in the County Court (having received a non-custodial sentence in the Magistrates’ Court). Finally, an accused can choose instead to appeal on a question of law to the Supreme Court from the Magistrates’ Court (clause 272). This right of appeal provides an avenue for the accused who wishes to have a legal error corrected rather than the case reheard.[16]
[15]Charter, s 28.
[16]Parliament of Victoria, Criminal Procedure Bill, Legislative assembly Extract, book 16, 4 December 2008, 4979.
The plaintiff submitted that on a plain reading, this includes a conviction and sentence for contempt in the Magistrates’ Court. Further, any derogation of the ‘right of appeal’ enshrined in s 25(4) of the Charter must be expressly intended.[17] There is no express exclusion of s 134 MCA proceedings from s 254 of the CPA in that Act or any other.
[17]Momcilovic v The Queen (2011) 245 CLR 1.
The second defendant
The second defendant submitted that a s 254 CPA appeal cannot lie where a person is convicted and sentenced in a s 134 MCA proceeding. Such a proceeding is distinct from a criminal proceeding conducted in accordance with Part 3.3 of the CPA.
That was said to be evident both from sections within Part 3.3 inapposite to a s 134 proceeding and from powers in ss 133 and 134 of the MCA which are unavailable in summary criminal proceedings in respect of any other charge.
Examples of the former were s 59, which allows a magistrate to adjourn a summary proceeding to enable the accused to participate in a diversion program, and ss 60 and 61, which govern the sentence indication procedure. Examples of the latter were s 134(3), which confers a discretionary power to not impose punishment even if satisfied that the contempt is proven, s 133(5), which allows a magistrate to discharge a person from imprisonment before expiry of its term, and s 133(6), which allows a magistrate to accept an apology and remit any punishment.
The second defendant submitted that the phrase ‘reviewed by a higher court’ in s 25(4) of the Charter cannot be construed to mean a right to an appeal, de novo or otherwise. ‘Review’ can mean a number of things, including judicial review or (de novo) appeal. Further, the words ‘in accordance with law’ within that section show that s 25(4) of the Charter expressly contemplates that the mode of the review is to be determined by the legislative provisions creating the right for ‘review’.
Additionally, the second defendant argued that the denial of a de novo appeal in respect of Magistrates’ Court contempt proceedings is not otherwise unfair. A person convicted under s 134 of the MCA may seek review of the decision by appeal on a question of law[18] or Order 56 review proceedings.[19] An appeal on a question of law may involve a complaint of specific error[20] or that the sentence imposed is manifestly excessive in all the circumstances. And, the appeal rights of persons sentenced in either the County Court or Supreme Court are based on legal error.[21]
[18]CPA, s 272.
[19]Supreme Court (General Civil Procedure) Rules 2005. See, for example: Peter Green v Magistrates Court of Victoria and Director of Public Prosecutions [2011] VSC 584 (‘Peter Green’).
[20]See, for example: Treloar v Richardson [2020] VSC 479.
[21]House v R (1936) 55 CLR 499; Lowndes v R (1999) 195 CLR 665; Dinsdale v R (2000) 2020 CLR 321.
Analysis
The specific issue for determination in this matter does not require a detailed analysis of the law of contempt. It is sufficient to note that its aim is to uphold the effective administration of justice.[22] Punishment for contempt of court is to vindicate the authority of the court.[23]
[22]Re Colina; Ex parte Torney (1999) 200 CLR 386, 429 (Hayne J).
[23]Lewis v Ogden (1984) 153 CLR 682, 693.
Contempt is a criminal offence.[24] Contempt proceedings are ‘criminal’ in nature,[25] but have clear procedural differences from a criminal trial.[26] In Victoria, the presiding judicial officer hears contempt proceedings summarily. A jury is not empanelled.[27] The charge must be distinctly stated and the accused afforded procedural fairness.[28] The standard of proof is beyond reasonable doubt.[29]
[24]John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 [5]; Rich v Attorney-General [1999] VSCA 14; Boral Resources (Vic) v CFMEU [2014] VSC 120.
[25]DPP v Garde-Wilson (2006) 15 VR 640, [17] (Bongiorno AJA).
[26]CFMEU v Boral Resources [2015] HCA 21, [59] (Nettle J).
[27]The Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117, 136-137.
[28]Zukanovic (n 13); Director of Public Prosecutions v Green and Magistrates’ Court of Victoria [2013] VSCA 78 (‘DPP v Green’).
[29]Witham v Holloway (1995) 183 CLR 525.
Any procedure
Turning to the issues raised in this matter, the contention of the plaintiff that the phrase ‘adopt any procedure that the court thinks fit’ in s 134(2) of the MCA must be read as implicitly constrained by the CPA and, specifically, Part 3.3 of it, cannot be upheld.
First, to do so would be an unacceptable contortion of the words of the statute. It is plain that the phrase is very broad. It gives a magistrate a very wide power to respond to whatever form the challenge to the authority of the court the alleged contempt assumes. The relationship between the gravamen of contempt and the flexibility of the power was recognised by Tate JA in DPP v Green:
… both s 133 and s 134 contain measures to control the Court to direct the arrest of the alleged contemnor – such a power enables the Court to reaffirm its authority with immediacy before embarking upon the process of specifying the charge of contempt or proceeding to determine it; the procedural steps in Zukanovic thus do not interfere with the Court’s capacity to reaffirm its authority – indeed, the need for an immediate reaffirmation of authority is more likely to be present under s 133 than s 134 (the differences in the two sections in this regard thus do not derogate from the application of the Zukanovic steps to s 134 but rather support it) …[30]
[30]DPP v Green, [60(1)].
The width of the procedural power was recognised by her Honour in the same case:
Neither s 133 nor s 134 descend to a level of detail about the particular procedural steps to be taken before the Court can find a person guilty of contempt – they each provide only that the Court is to ‘adopt any procedure that the Court thinks fit’ …[31]
[31]DPP v Green, [60(4)].
It was also recognised by Pagone J in Peter Green when his Honour contrasted sections 272 and 254 of the CPA. His Honour stated that he accepted that
…an appeal under s 134 of the [MCA] is competent under s 272 of the [CPA]. It is unlike the position of an appeal to the County Court under s 254 of the latter Act because such an appeal would not be from a proceeding conducted ‘in accordance with Part 3.3’. In contrast, an appeal to this Court under s 272 is not confined or conditioned by that qualifying phrase but extends to a ‘criminal proceeding’. The latter is a wider phrase and encompasses a proceeding for contempt.[32]
[32]Peter Green, [24].
The plaintiff submits, correctly, that this observation by Pagone J is obiter. It was recognised by Judge Fox as being so. It is, nonetheless, persuasive.
Thus, the breadth of the phrase ‘adopt any procedure that the court thinks fit’, evident from its very formulation, is also supported by its purpose. All courts must have the ability to protect their integrity in specific, adaptive response to the unique circumstances of contemptuous behaviour.
Second, that the power is constrained by the need to afford the alleged contemnor natural justice does not limit the power such as to require it to fall within the procedure established in Part 3.3 of the CPA. A simple example illustrates the point.
There is no requirement that a charge under s 134 (or s 133) be in writing.[33] Section 32, which is in Part 3.2 of the CPA (Procedure before Summary Hearing), establishes that an accused is entitled to receive free of charge a copy of the charge-sheet. Division 1 of Part 3.3 (Joint or Separate Hearing of Charges) contains three sections premised on the provision of a charge sheet or sheets to an accused.
[33]Zukanovic, [41].
As Judge Fox identified, that a magistrate may choose, when exercising the power under s 134(2), to adopt a procedure that ‘mirrors or mimics’ a summary plea hearing conducted under Part 3.3 of the CPA reflects that the magistrate has turned his or her mind to the issue of natural justice and used a procedure that ensures its requirements, as established in Zukanovic, are met. But the rules of natural justice are not prescriptive. As Tate JA said in DPP v Green:
No doubt J Forrest J did not intend that the procedural steps he identified in Zukanovic were to be treated as a set of rigid prescriptive rules that bore no capacity to adapt to the circumstances of a proceeding. I have already indicated that I consider the steps to be no more than an expression of the principle in Coward v Stapleton[34] that ‘no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him’.
The advantage conveyed by the setting out of separate procedural steps, in the way J Forrest J has done, is to emphasise that the order in which these steps take place is of critical importance.[35]
[34](1953) 90 CLR 573, 579-80.
[35]DPP v Green, [76]-[77].
Third, the choice by a magistrate to adopt a procedure that resembles a proceeding under Part 3.3 of the CPA, in contradistinction to one that does not, cannot be the basis on which an appeal under s 254 of the CPA is competent. Again, Judge Fox correctly stated that the issue is one of legal power. It is not to be determined as a factual question.
The Charter
The right under s 25(4) of the Charter is not, as submitted by the plaintiff a right ‘of appeal’. It is a right of review by a higher court in accordance with law. I accept the submission of the second defendant that the words ‘in accordance with law’ indicate that the mode of the right of review is to be determined by the legal provisions creating that right. The use of the word ‘review’ allows satisfaction of the right for supervision and scrutiny of convictions and sentences to be achieved in a variety of ways.
In Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue,[36] the High Court reaffirmed that that the word ‘review’ in a statute “takes its meaning from the context in which it appears.”[37] It is relevant therefore that the Charter uses the term “review” in this particular section, rather than “appeal” (which, it should be noted, is used elsewhere in the Charter).
[36][2011] HCA 41; 245 CLR 446 (‘Tasty Chicks’).
[37]Ibid [5].
Further, the wording of s 25(4) of the Charter is drawn from that Article 14.5 of the International Covenant on Civil and Political Rights (ICCPR). The United Nations Human Rights Committee has stated that this right imposes an obligation on a higher court to substantially review the conviction and sentence, but does not require the appeal court to conduct a retrial of the factual issues or to admit further evidence that was available, but not admitted, at trial.[38]
[38]Perera v Australia (Communication No 536/1993), [6.4].
It is clear that a person convicted and sentenced with respect to an offence under s 134 (or s 133) of the MCA has a right of review. It is now beyond doubt that a proceeding under s 134 (or s 133) is a criminal proceeding. Section 272(1) of the CPA allows a party to a criminal proceeding in the Magistrates’ Court[39] to appeal to the Supreme Court on a question of law from a final order of the Magistrates’ Court in that proceeding.
[39]Other than a committal proceeding.
The plaintiff’s argument that fairness demands that the s 25(4) right of a person convicted under s 134 must be read as requiring a right of de novo appeal to the County Court must be rejected.
First, there is no principle of statutory construction which supports a differential interpretation of a legislative provision on the basis that in a particular situation its effect, although lawful, could be more advantageous to a person affected by it. The complaint here is not that the availability of the s 272 CPA procedure is unfair, but that it would be more fair to also give a convicted and sentenced contemnor an additional appeal procedure.
Second, the basis of the ‘unfairness’ alleged is by comparison with a person convicted and sentenced in the Magistrates’ Court in a summary criminal proceeding conducted in accordance with Part 3.3 of the CPA. But, for the reasons articulated above, that comparison is inapt. It does not compare like with like.
Third, there is nothing about contempt that inherently demands, as an issue of fairness, a right of de novo appeal. A person convicted of and sentenced for contempt in either the County Court of this Court may appeal to the Court of Appeal, but not on a de novo basis.[40]
[40]CPA, ss 274 and 278.
The plaintiff’s argument as to the construction of s 25(4) of the Charter based on the chronology of the relevant Acts must also be rejected.
The MCA commenced on 14 June 1989. Section 134 was part of that Act upon commencement. Specifically, the phrase ‘adopt any procedure that the Court thinks fit’ was then part of s 134(2).
Prior to the commencement of the CPA on 10 March 2009, s 83 of the MCA gave a person a right of appeal to the County Court ‘against any sentencing order made against that person by the [Magistrates’ Court] in a criminal proceeding conducted in accordance with Schedule 2.’
Schedule 2 was entitled ‘Summary Criminal Hearings’. It had five clauses addressing venue, course of proceedings, the mention system, the non-appearance of an informant and the non-appearance of a defendant. Clause 2 addressed the course of proceedings, which was defined in clause 2(1) to mean the matters set out in ss 397, 398, 398A, 417 and 418 of the Crimes Act 1958, with any necessary modifications. These now repealed provisions dealt with the accused’s right to make a full defence following the close of the prosecution case; the appropriate warning to be given to an unrepresented accused who indicated an intention to give evidence in their trial; the admissibility of propensity evidence; summing up of both the prosecution and defence cases; and when unsworn statements of fact made by prisoners in lieu of or in addition to any evidence on their behalf were to be given.
Clause 2(2) established that subject to one exception, the course of proceedings is the same as that followed in a criminal trial in the Supreme Court. The exception, delineated in clause 2(3), was that leave of the court was necessary before the court would entertain an address on the evidence by either the informant or the defendant.
It follows that the s 254 CPA appeal rights which are limited to persons convicted of an offence in a criminal proceeding conducted in accordance with Part 3.3 essentially continued and reproduced the appeal rights of a person sentenced in a criminal proceeding conducted in accordance with Schedule 2 of the MCA. And, proceedings conducted under s134(2) (and 133(2)) of the MCA have always been done ‘in accordance with any procedure the court thinks fit’, rather than under Schedule 2 of the MCA or Part 3.3 of the CPA.
Consequently, there is no derogation of the ‘right of appeal’ established by s 25(4) of the Charter consequent upon the enactment of the CPA in 2009. To the contrary, if Parliament had intended to alter the existing position such that appeals from orders made under ss 133 and 134 of the MCA were to thereafter include a right to a de novo appeal, s 254 of the CPA would have been worded differently.
Conclusion and Orders
The application for judicial review is refused.
It follows that the order of this Court dated 26 November 2020 extending the plaintiff’s bail is revoked. The original order of the Magistrates’ Court which sentenced the plaintiff to imprisonment for 14 days is confirmed.
I will hear the parties as to costs.
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