Moore-McQuillan v Registrar of the Supreme Court
[2009] SASC 265
•4 September 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOORE-MCQUILLAN v REGISTRAR OF THE SUPREME COURT
[2009] SASC 265
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
4 September 2009
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - CONTEMPT COMMITTED IN FACE OF COURT
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - DISOBEDIENCE OF ORDERS OF COURT - OTHER CASES
Appeal against an order revoking suspension of term of imprisonment imposed on appellant for contempt of Court - appellant found guilty of contempt of Court - sentence of imprisonment of 3 months suspended on entry into good behaviour bond - whether conduct causing revocation of suspension of imprisonment constituted breach of good behaviour bond - whether tribunal before which the alleged misconduct occurred was a 'court' for the purposes of good behaviour bond - whether miscarriage of justice occasioned by conduct of counsel.
Held: appeal dismissed - appellant breached good behaviour bond - appellant was expressly warned of behaviour which would constitute such breach at time of sentencing - appellant’s conduct fell within the intended scope of the terms of the bond - proven behaviour was capable of being found to be bad behaviour and to amount to a breach of bond regardless of forum - tribunal a 'court' for purposes of good behaviour bond - conduct of appellant's counsel did not give rise to miscarriage of justice.
Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 447; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Ali v The Queen [2005] HCA 8; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301, considered.
MOORE-MCQUILLAN v REGISTRAR OF THE SUPREME COURT
[2009] SASC 265Full Court: Bleby, Gray and Layton JJ
BLEBY J. I would dismiss the appeal. I agree with the reasons of Gray J and have nothing to add.
GRAY J.
In these proceedings, a Judge of this Court concluded that the appellant, Markham Wayne Moore-McQuillan, was guilty of contempt of Court. The contempt was constituted by the use of insulting, profane and abusive language towards a Judge of the Supreme Court following the delivery of a judgment adverse to the appellant. The contempt was committed against a background of acts of intimidation, including violence directed toward persons concerned with the administration of justice, including officers of the courts and tribunals before which the appellant had appeared.
The appellant was sentenced to a 3-month term of imprisonment suspended on entry into a good behaviour bond. This is an appeal against an order revoking the suspension of that term of imprisonment and, in particular, against the finding that the appellant had breached his good behaviour bond.
Background
On 26 February 2007 a Judge of this Court dismissed two applications by the appellant with respect to proceedings involving WorkCover. The following interchange occurred between the Judge and the appellant:
HIS HONOUR: In this matter both applications are dismissed with costs. I publish my reasons.
MR MOORE-McQUILLAN: Thank you for being an arsehole and thank you for being prejudicial and thank you for being a cunt.
HIS HONOUR: That’s enough from you.
MR MOORE-McQUILLAN: Hope you have a good fucking retirement you stupid fucking idiot. Thank Christ we are getting rid of a fucking cunt like you.
On 6 March 2007 the Registrar of the Supreme Court issued a Registrar’s summons for contempt directed to the appellant. That summons provided:
TO
Mr Markham Wayne Moore-McQuillan
8 Baanga Road
MORPHETT VALE SA 5162You are required to attend before the Supreme Court of South Australia at 10.00 am on Thursday, 5 April 2007 at 1 Gouger Street, Adelaide in the State of South Australia on the hearing of this summons, which is issued by the Registrar of the Court, to answer a charge of contempt of Court in that you did, on 26 February 2007 at the Supreme Court of South Australia, 1 Gouger Street, Adelaide in the State of South Australia, whilst the Court was in session, and immediately upon it being adjourned, insult and use profane and abusive language to the presiding judge, namely the Honourable Justice Perry.
On 4 June 2007, during an application by the appellant through his then counsel for an adjournment of the contempt proceedings, the following interchange took place:
HER HONOUR: …Also, on the question of the matter being adjourned, of course I am going to give you that adjournment because it’s quite proper for you to have that opportunity, I don’t know if Mr Moore-McQuillan has any other court appearances but I would have to have an undertaking that there will be no repetition of the conduct before Perry J during the period of the adjournment. You may just want to check that with Mr Moore-McQuillan.
Ms McCROHAN: He is involved in ongoing proceedings in which former Justice Olsson is involved. They have involved a process where they do the proceedings by phone because Olsson J is aware of his difficulties and they have been able to avoid this type of conduct. But he is also willing to sign an undertaking or recognisance, whatever your Honour requires.
HER HONOUR: No, I just require Mr Moore-McQuillan to give an undertaking to this court that he will endeavour to refrain from this type of conduct, and I can indicate if there is a breach of that undertaking it could involve more proceedings and that it may also reflect in the level of penalty in the event that I find the contempt proved in these proceedings.
Ms McCROHAN: He says he can do the best he can. He feels that some things are out of his control.
HER HONOUR: Will you confirm that you will do the best you can to behave during the court proceedings?
Mr MOORE-McQUILLAN: I have always tried to do that.
On 20 November 2007 the hearing of the contempt proceedings proceeded before Nyland J. Her Honour published reasons for judgment,[1] in which Her Honour concluded:
I am therefore satisfied that the words uttered by the defendant are capable of amounting to a contempt in the face of the court, notwithstanding that the statements made by the defendant were uttered after judgment had been delivered.
[1] Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 447 at [25].
The factual findings by Nyland J with respect to the statements made by the appellant to Justice Perry were as follows:
Present in court at the time of the delivery of judgment were Janette Coady, a court reporter, Adam Webster, an associate, and the judge’s tipstaff, Mary Broderick, each of whom has filed an affidavit deposing to the course of proceedings and the words used by the defendant. Mr Hegarty indicated that the defendant consented to the affidavits of each of them being tendered by consent and did not require any of them to be made available for cross-examination.
A copy of the transcript taken by Ms Coady is annexed to her affidavit[2], although she indicates that further things were said by the defendant which are not included in the transcript due to the speed at which the defendant spoke. The transcript records the following interchange between the judge and the defendant:
[2] Affidavit of Janette Irene Coady sworn on 6 March 2007 (Exhibit P1).
HIS HONOUR: In this matter both applications are dismissed with costs. I publish my reasons.
MR MOORE-MCQUILLAN: Thank you for being an arsehole and thank you for being prejudicial and thank you for being a cunt.
HIS HONOUR: That’s enough from you.
MR MOORE-MCQUILLAN: Hope you have a good fucking retirement you stupid fucking idiot. Thank Christ we are getting rid of a fucking cunt like you.
Mr Webster confirmed his belief that the transcript accurately reflected what was said by the judge and the defendant[3]. Mr Webster also said that after leaving the bar table and making his way to the exit of the courtroom, the defendant said more by way of abuse to the judge than was recorded in the transcript.
[3] Affidavit of Adam Lyall Webster sworn on 6 March 2007 (Exhibit P2).
Ms Broderick also recalled that the defendant said more by way of abuse to the judge than was recorded in the transcript[4]. In particular she recalled the defendant accusing the judge of being “corrupt”.
[4] Affidavit of Mary Broderick sworn on 6 March 2007 (Exhibit P3).
I am satisfied and find that the words used by the defendant are as set out in the affidavits filed in these proceedings. The issue which now arises for my determination is whether the words used by the defendant, in the circumstances in which they were uttered, amount to a contempt of court.
Nyland J reviewed the evidence and in particular the psychiatric and psychological evidence. Her Honour noted an apology given by the appellant and in that respect observed:
The defendant did not give evidence or call any witnesses on his behalf, but in the course of his address, Mr Hegarty referred to a letter written by the defendant to the Chief Justice dated 1 March 2007 in which the defendant said inter alia:
On the 26-2-07 Perry J gave his decision and left and I must admit I gave him a blast, I am sorry for this but it’s more uncontrollable than controllable as I have outlined to you before. I do not like the person I become when I am suffering stress and attending courts but I am forced to do so because of the reluctance of WorkCover to comply with the Act or undertakings given to the courts.
I am apologizing for me (sic) behaviour which is more reactional to the stress and asking for assistance in my quest to have my rights pursuant to the legislation of South Australia that I have been denied.
Please forgive my outburst on 26-2-07.
Nyland J then concluded:
As earlier indicated, I am satisfied that the statements set out in the transcript annexed to the affidavits of the deponents were uttered by the defendant. I am also satisfied that the defendant referred to Perry J as “corrupt”. I am satisfied that the words used were a contempt in the face of the court notwithstanding that they were uttered after judgment had been delivered. I am satisfied that the defendant was aware of what he was saying and was able to control what he said. The statements were deliberately made by the defendant with the intention to insult, ridicule and to defy the authority of the court simply because the defendant had received a judgment which was not in his favour. To refer to a judge as “corrupt” is an insult of the worst kind, designed to impair “confidence in the courts and their judgments”. I therefore find the defendant guilty of the charge of contempt.
On 17 April 2008 Nyland J sentenced the appellant with respect to the charge of contempt. In that respect the Judge set out the history of the matter and referred to previous misconduct, including criminal offences of the appellant, before concluding:
I should make it clear that I have not referred to those other offences to punish you again for matters for which penalties have already been imposed. They do however put the present matter in context and, in my view, they do reduce the opportunity for the court to extend leniency to you on this occasion.
I also consider that as a result of that history it is necessary to include a significant component of personal deterrence in the sentence I am about to impose in the hope that it will discourage you from re-offending in the future.
General deterrence must also be given considerable weight to ensure that others who might be minded to act as you did will understand that unjustified attacks upon the administration of justice cannot be tolerated.
Mr Balfour in his very detailed report described your behaviour as “querulous” and it is of concern that he thought your behaviour was entrenched. He believes that there is a high probability that you will continue to lose your temper in court and become obnoxious and abusive. Nevertheless, he believes that there is some hope that you might respond to rehabilitation. He recommended that you participate in a supervised structured rehabilitation program which would include referral to a Community Corrections Officer for intensive case management support, referral to a psychiatrist to assess your suitability for mood stabilising drugs with a view to curbing your anger and depression, and referral to a clinical psychologist for cognitive behaviour therapy. Mr Balfour thought that you would require at least 10 sessions to determine if there was any prospect of you becoming less entrenched in your querulous behaviour. He also thought you would be an appropriate referral to the Forensic Mental Services Outpatient Department of James Nash House.
I have given this matter my very careful consideration. I consider that your behaviour was too serious to be dealt with simply by the imposition of a fine or a bond. A sentence of imprisonment is, in my view, the only appropriate penalty. The issue which has exercised my mind is whether all or any part of that sentence should be suspended. I take into account that you have proffered an apology for your conduct. I have also taken into account your personal history as detailed in the various reports.
In all the circumstances I have finally decided that, notwithstanding the seriousness of the matter, there is on this occasion good reason to suspend the period of imprisonment that I am about to impose. That suspension will, however, be subject to a bond with conditions which will require you to be of good behaviour.
I remind you, however, that on 4 June last year I required you to give an undertaking that you would behave appropriately with respect to all matters you had in any court. In sentencing you today I do not release you from that undertaking. I therefore need to make it quite clear that in the event of there being a repetition of the sort of behaviour which founded the contempt charge, or should there be any other inappropriate behaviour in any of the courts before which you appear in the future, I would consider that to be a breach of the condition of the bond which will require you to be of good behaviour. That would lead to immediate revocation of the order for suspension and would require you to serve the term of imprisonment which I am about to impose, quite apart from any penalty imposed for the breaching offence.
The sentence of the court is that you be imprisoned for a period of three months. That sentence will be suspended on condition that you enter into a bond in your own recognisance in the sum of $100 on the following terms and conditions:
1.That you be of good behaviour for a period of 18 months.
2.That you be under the supervision of a Community Corrections Officer for the duration of the bond.
3.That you obey the directions of the Community Corrections Officer and those directions shall include referral to a psychiatrist and/or a psychologist for such treatment and/or attendance at such programs as may be recommended by any of them.
On that day, the appellant entered into an 18-month bond suspending the 3-month term of imprisonment imposed by Nyland J in respect of the contempt of court. The bond provided, inter alia:
The court has recorded a conviction against you for the offence(s) listed above and has imposed the sentence(s) shown for each matter. It has, however, ordered that the sentence(s) be suspended if you enter into a bond.
DETAILS OF YOUR BOND ARE:18 months
Length of bond term (starting from when you sign this bond)
Amount of bond$100.00
Conditions of Your Bond Are:
1. That you be of good behaviour for the duration of the bond.
2.That you be under the supervision of a community corrections officer for the period of the bond, whose directions you shall obey, and those directions shall include referral to a psychiatrist and/or a psychologist for such treatment and attendance at programs as recommended by any of them.
WHAT WILL HAPPEN IF YOU COMPLY WITH CONDITIONS OF THIS BOND:
If, at the end of the term of this bond, you have complied with all of the conditions mentioned above, the sentence of imprisonment ordered by the court will not have to be served, nor will you have to come back to court.
WHAT WILL HAPPEN IF YOU FAIL TO COMPLY WITH THE CONDITIONS OF THIS BOND:
If you fail to comply with any of the conditions of your bond, the following things may happen –
1.You may be brought back to court, and the court may cancel the order of suspension of the sentence of prison sentence imposed on you. You would then have to serve that sentence, or such lesser term of imprisonment fixed by the court.
2.You may be ordered to pay the above amount of the bond, or any lesser amount fixed by the court.
ACKNOWLEDGMENT BY PROBATIONER
I agree to enter into this bond. I acknowledge that I fully understand its conditions, and I undertake to comply with those conditions. I also understand what will happen to me if I fail to do so.Signed by Probationer
Probationer
The primary condition of the bond was that the appellant “be of good behaviour for the duration of the bond”. The appellant was put expressly on notice as to the nature of the conduct which might amount to a failure to be of good behaviour. As Nyland J reminded the appellant at the time of making this order:
…On 4 June last year I required you to give an undertaking that you would behave appropriately with respect to all matters you had in any court. In sentencing you today I do not release you from that undertaking. I therefore need to make it quite clear that in the event of there being a repetition of the sort of behaviour which founded the contempt charge, or should there be any other inappropriate behaviour in any of the courts before which you appear in the future, I would consider that to be a breach of the condition of the bond which will require you of be of good behaviour…”
(emphasis added)
The breach of bond, the subject of this appeal, was the result of the appellant’s conduct, less than one month later on 12 May 2008, in the Workers Compensation Tribunal. On that occasion the appellant used abusive and insulting language to opposing counsel and to the Tribunal as follows:
MR MOORE-McQUILLAN: Listen, you just shut the fuck up and fucking sit down and don’t be a dickhead and instead of fucking turning around and dictate the terms ---
HIS HONOUR: That’s ---
MR MOORE-McQUILLAN: I’m talking to you and I don’t need this fuckwit interrupting.
HIS HONOUR: That is enough, Mr Moore-McQuillan.
….
MR MOORE-McQUILLAN: I don’t think so. Why doesn’t Downs tell us what his fucking instructions to ---
HIS HONOUR: Mr Moore-McQuillan, stop it.
MR MOORE-McQUILLAN: You lying piece of shit. Now, sit down, you dick-face.
The insulting language was compounded by accusations of bias levelled at the presiding officer and opposing counsel:
MR MOORE-McQUILLAN: If you want to be - if - it’s bad enough that I have to come in here and I have to put with your bias and his bias as well.
Whether taking place in a court or tribunal, the behaviour was undeniably a failure to be of good behaviour.
On 5 September 2008, the Registrar of the Supreme Court issued a summons directed to the appellant with respect to his alleged failure to comply with the conditions of the suspended sentence bond. In that respect the summons provided:
TAKE NOTICE that you are required to answer the allegation that you have failed to comply with the condition of the bond that you be of good behaviour, and for that purpose you are hereby ordered to appear on the …22 … day of …September… 2008 at …eleven… o’clock in the …morning ..
noonat the Supreme Court in the State of South Australia, to answer the allegation and to show cause why you should not be dealt with according to law. If you fail to attend as required by this summons, the court may order that a warrant be issued for your arrest, or make such order against you in your absence as it sees fit, including an order for your imprisonment.
On 16 December 2008, Nyland J estreated the bond and the suspended sentence came into effect. The Judge gave reasons for that decision:
When I imposed that sentence I endeavoured to make it clear to you that if there was a repetition of the sort of behaviour which founded the contempt charge or, for that matter, any other inappropriate behaviour in any of the courts before which you appeared in the future, I would consider that to be a breach of the condition of the bond which required you to be of good behaviour and that would lead to the immediate revocation of the order for suspension and you would be required to serve the term of imprisonment which I suspended.
Only a few weeks later however, that is on 12 May 2008, you attended before Auxiliary Justice Olsson in the Workers Compensation Tribunal with respect to one of your disputes with WorkCover. Mr Downs, who has acted as counsel for WorkCover throughout your protracted litigation with them, was also present in court. At the commencement of the proceedings there was some discussion about the absence of your counsel in the course of which Mr Downs told the judge that you had moved the microphone which was part of the digital equipment used for recording proceedings in that courtroom. The recording of this incident was played to me last Friday and a transcript of that recording is attached to the affidavit of Felicity Horgan, both of which were provided to me as part of the prosecution case.
It is clear that you became very angry at Mr Downs’ interjection and thereafter used a series of offensive expletives, which have no place in a courtroom. This also included an allegation of bias directed to the judge when he endeavoured to control your behaviour.
…
I made it clear to you, on 17 April, that there would be a consequence if you failed to be of good behaviour, but it seems not to have made an impact on you and Dr Begg’s prediction seems to have come true. I am satisfied that your behaviour in court on 12 May 2008 amounted to a breach of the bond imposed by me. No proper grounds have been established which would permit me to excuse your failure to obey the conditions of the bond. The bond is therefore estreated.
The question ultimately raised with respect to the breach proceedings was whether the respondent had established that the appellant had failed to be of good behaviour during the term of the bond.
The Appeal
Extension of time
The orders of Nyland J, the subject of the appeal, were made on 16 December 2008. The appeal was lodged on 15 January 2009. As a consequence the appeal was out of time by a matter of some days. It is necessary for the appellant to obtain an extension of time to appeal. Normally an extension following a short delay would be granted. However, further matters arise for consideration.
Although the appellant lodged his notice of appeal having spent one month of his three-month term of imprisonment in custody, he did not seek an urgent or immediate hearing. However, once the appellant indicated that he wished to pursue his appeal, the Court prepared the appeal books and listed the matter for an expedited hearing. On the hearing of the appeal on 18 February 2009, the appellant applied to adjourn the proceeding. Apparently he anticipated being released from prison and allowed to serve the balance of his sentence on home detention. This did not occur. The appellant was not released on home detention.
The appellant then sought an urgent re-listing of the appeal. The Court facilitated the re-listing and reconvened on 23 February 2009. Shortly prior to this hearing the appellant gave notice that he objected to a member of the Court sitting on the appeal. Unbeknown to the Judge concerned, an event had occurred that did call for his withdrawal. As a result, it was not possible for the appeal to proceed on 23 February 2009. By this time the appellant had served more than two-thirds of the sentence imposed by Nyland J. The appeal could not be immediately re-listed as the appellant sought to disqualify most of the other members of the Court.
The appellant fully served the sentence by 16 March 2009. I will return to the application for an extension of time later in these reasons.
No breach of bond before the Tribunal
The appellant submitted that the Tribunal before which the alleged misconduct occurred on 12 May 2008 was not a court and as a result his conduct did not breach the terms of his bond.
The appellant referred to the use of the word “Court” in Nyland J’s sentencing remarks in an effort to escape a finding of breach, claiming that the alleged breaching conduct before Auxiliary Judge Olsson on 12 May 2008 occurred in a “Tribunal” rather than a “Court”.
This contention was not raised before Nyland J during the breach proceedings. The contention ignores the history of the matter, particularly the nature and context of the undertaking given on 4 June 2007 at which time it was clearly contemplated that proceedings before Auxiliary Judge Olsson ought to be included within the scope of the undertaking. The contention also overlooked the terms of the suspended sentence bond.
The question upon the breach proceedings was whether the appellant had failed to be of good behaviour. At the time that the bond was imposed, the appellant’s previous offending history centred on his behaviour during the course of formal legal proceedings. In that context the appellant was expressly warned by Nyland J that a repetition of the type of behaviour leading to the bond - abusive language and allegations of bias toward a court and its officers - in any of the “courts” before which the appellant appeared in the future, may result in a finding that the appellant had breached the bond.
As earlier observed, the ultimate question was whether the appellant had failed to be of good behaviour. At issue was whether the demonstrated conduct - abusive language, and allegations of bias to the Tribunal and opposing counsel - was such a failure, whether or not the Tribunal was a court strictly so-called.
Whether or not the Tribunal was a court strictly so-called is not the point. The appellant entered a bond to be of good behaviour, and the proven behaviour was entirely capable of being found to be bad behaviour and to amount to a breach of his bond.
In any event, the Worker’s Compensation Tribunal has been held to be a Court. As Doyle CJ observed in Craig v Workers Compensation Tribunal:[5]
In Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 the Tribunal was held to be a court for the purposes of s 39 of the Supreme Court Act 1935 (SA), which gives the Supreme Court power to deal with vexatious proceedings. Vexatious proceedings are defined to include "civil and criminal proceedings whether instituted in the court or some other court of the State": s 39(6). That is another reason for concluding that the Tribunal must accord procedural fairness to those who appear before it.
Whether a Court strictly so-called or not, the Worker’s Compensation Tribunal was without doubt a lawfully constituted Tribunal before which the appellant was appearing. It was a Tribunal empowered to hear evidence and to determine the appellant’s rights or entitlements according to equity, good conscience and the merits of the case. The appellant’s conduct fell fairly and squarely within the intended scope of the terms of the bond.
[5] Craig v Workers Compensation Tribunal (2004) 90 SASR 490 at [53].
Inadequacy of legal representation
It is to be observed that the appellant was represented before Nyland J at the hearing of the charge of contempt, when sentenced for contempt, at the hearing of the charge of breach of the bond and then in respect of the lifting of the suspension of the term of imprisonment.
On the hearing of the appeal to this Court the appellant complained that he had not been adequately represented by his lawyer before Nyland J on the hearing of the breach of bond proceedings. In particular it was said that his solicitor failed to properly advance his defence to the charge. Much of the appellant’s submission in this respect was contained in his affidavit of 8 May 2009. Although it is not entirely clear, it appears that the appellant complains of two failures by his counsel. One was the failure to put an argument that the Workers Compensation Tribunal was not a court and that therefore there was no breach of the bond. As I have already held, there is no merit in this argument. It is not an argument that counsel should properly have put and there was no detriment to the appellant by counsel’s failure to put it. The second alleged failure was a failure to call the appellant and to put a defence that the appellant was goaded by the solicitors from WorkCover and that as a consequence he lost his temper and that the conduct complained of then occurred. The appellant’s affidavit contained the following:
On the 12-5-08 the appellant was on time and waiting for Mr Heggarty [sic] to attend and did advise the associate to Olsson AUJ of his representation.
The two sheriffs in attendance at the WCT took up crowding the appellant which was considered as harassment and threatening behaviour by the appellant and witnessed by the associate to Olsson AUJ.
The appellant made numerous phone calls to Mr Heggarty [sic] and his office seeking Mr Heggartys [sic] whereabouts and time of arrival.
The matter was due to begin at 9.30am and the appellant kept the associate to Olsson AUJ advised of his progress in finding Mr Heggarty [sic].
During this process both O Down [sic] and H Lutterous [sic] lawyers for WorkCover came out and began harassing the appellant by insults and abuse which was witnessed by the two sheriffs in attendance and associate to Olsson AUJ.
Then O Downs demanded Olsson AUJ begin this capacity hearing and stated that Olsson AUJ has to start it now or he is leaving, and further if the appellant has [sic] legal representation then its [sic] bad luck.
The appellant does not know if this was picked up on the recording equipment but no transcript has been made to date.
Eventually the appellant was ordered into the hearing room and subjected to more abuse from Owen Downs and Hans Lutterous [sic] saying how the appellant was “fucked” and Nyland has stitched him up and that the appellant can not do anything as his is “fucked”.
Then Olsson AUJ came out and the rest is in the transcript except for the conversation between O Downs and H Lutterous [sic] while Olsson AUJ was addressing the appellant.
It is a fact that every word uttered by the appellant in or out of the hearing room during and in-between the hearing is recorded however at no time is this applied to O Downs or Lutterous [sic] who often have conversations loud enough to interfere with the appellant and never recorded.
Eventually Mr Heggarty [sic] attended the WCT and this is recorded on the transcript. However the attitude of Downs, Lutterous [sic] and the two sheriffs was noticeably different once the appellant had a witness and legal representation.
Accepting for the moment the allegations of the appellant, it is to be observed that the allegations fall well short of providing any defence to the charge of contempt. It is obvious that there has been a long running dispute between the appellant and WorkCover and its legal advisers. There is no suggestion in the affidavit that the appellant so lost control that his conduct before Auxiliary Judge Olsson was not deliberate and intentional conduct. The appellant, if his affidavit is accepted, may have been angry and upset, but in the circumstances no defence arose.
The High Court has considered whether miscarriages of justice arose as a result of counsel’s incompetence in three recent decisions: Ali,[6] TKWJ[7] and Nudd.[8] These authorities establish that the ultimate question to be answered is whether, viewed objectively, proven conduct gave rise to a material risk of a miscarriage of justice. In each case, it was decided that no such risk had been established. In TKWJ, the Court had before it an affidavit from the solicitor and defence counsel at trial in relation to their conduct and in Nudd, the appellant and defence counsel at trial gave evidence on the appeal. The members of the Court, however, expressed views that differ to some degree on whether the need or occasion may arise where it would be necessary to explore the reasons for any mistake or incompetence of counsel at trial.
[6] Ali v The Queen [2005] HCA 8.
[7] TKWJ v The Queen (2002) 212 CLR 124.
[8] Nudd v The Queen (2006) 162 A Crim R 301.
In Nudd, Gleeson CJ observed that where the conduct of defence counsel is said to give rise to a miscarriage of justice, it is the role of the appeal court to conduct an objective inquiry, focusing on what was done or omitted to be done rather than why such conduct occurred. The Chief Justice also noted that circumstances may arise where it will be necessary to answer that latter question:[9]
To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective.
Gummow and Hayne JJ observed:[10]
As four members of this Court explained in TKWJ v The Queen[11], describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (QLD). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial[12], of whether there was a material irregularity in the trial[13], and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial[14].
Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused's counsel. Was what happened, or did not happen, at trial a miscarriage of justice?
[9] Nudd v The Queen (2006) 162 A Crim R 301 at [10 ].
[10] Nudd v The Queen (2006) 162 A Crim R 301 at [24]-[25].
[11] TKWJ v The Queen (2002) 212 CLR 124 at [31] per Gaudron J, [75], [97] per McHugh J, [101] per Gummow J, [103] per Hayne J.
[12] TKWJ v The Queen (2002) 212 CLR 124 at [31] per Gaudron J.
[13] TKWJ v The Queen (2002) 212 CLR 124 at [79] per McHugh J.
[14] TKWJ v The Queen (2002) 212 CLR 124 at [33] per Gaudron J, [79] per McHugh J, [101] per Gummow J, [104] per Hayne J.
There is nothing about the allegations with respect to the conduct of the appellant’s legal advisor on the hearing of the breach of bond proceedings that would suggest that any miscarriage of justice may have occurred.
Conclusion
I return to the appellant’s application for an extension of time to appeal. Having regard to the fact that the appellant was unrepresented and was in custody, I consider it appropriate to grant an extension of time to appeal. However, as is apparent from my foregoing reasons, I do not consider that there is any substance to the appellant’s complaints on the appeal. Accordingly, I would dismiss the appeal.
LAYTON: I agree with the conclusion by Gray J that the appeal be dismissed and with his reasons.
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