Sharples v Director of Public Prosecutions
[2011] QCA 249
•23 September 2011
SUPREME COURT OF QUEENSLAND
CITATION:
Sharples v Director of Public Prosecutions [2011] QCA 249
PARTIES:
SHARPLES, Terry Patrick
(applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)FILE NO/S:
CA No 101 of 2011
DC No 2506 of 2010DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
23 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2011
JUDGES:
Margaret McMurdo P and White JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The application for an extension of time to apply for leave to appeal is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was charged in Magistrates Court for contempt of court under s 40(1) Justices Act 1886 (Qld) – where the applicant applied to the District Court for an extension of time to appeal against his conviction more than eight years out of time – where the applicant was refused an extension of time to appeal to the District Court – where the applicant applies to the Court of Appeal for an extension of time to appeal against the order of the District Court judge refusing his application for an extension of time – where his application was only a few days out of time – where the grounds raised in support of his application are essentially those raised in his application to the District Court – whether in light of the lengthy delay since the original decision in the Magistrates Court it is in the interests of justice to grant an extension of time for leave to appeal
District Court of Queensland Act 1967 (Qld), s 118(3)
Justices Act 1886 (Qld), s 4, s 40(1), s 224(1)(a) (Reprint 6C)Attorney-General v Butterworth [1962] 3 All ER 326; [1963] 1 QB 696, cited
Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited
Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48, cited
Gliosca v Ninyett (1992) 10 WAR 562, cited
Industrial Registrar v Smith (1949) 65 CAR 1137, cited
Lewis v Judge Ogden (1984) 153 CLR 682; [1984] HCA 28, cited
Murphy v The Magistrates Court at Prahran (1995) 80 A Crim R 92; [1995] VSC 188, cited
R v Queensland Television Limited, ex parte Attorney-General [1983] 2 Qd R 648, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
Sharples v Crime & Misconduct Commission & Ors (2004) 146 A Crim R 20; [2004] QSC 162, cited
Spencer & Anor v Hutson & Ors[2007] QCA 178, considered
Windmill v Kerr [1980] QL vol 7 type 2, citedCOUNSEL:
The applicant appeared on his own behalf
M B Lehane for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: The applicant, Terry Patrick Sharples, has applied for an extension of time for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). He wants to appeal against an order made by a District Court judge on 28 March 2011 refusing his application for an extension of time under s 224(1)(a) Justices Act 1886 (Qld) to bring an appeal to the District Court from his conviction in the Magistrates Court on 19 August 2002 for the offence of contempt of court under s 40(1) Justices Act.[1]
[1]Reprint 6C.
The applicant sought to file his application for leave to appeal to this Court on 29 April 2011 so that it was but a few days out of time. By way of explanation, he has attached to his application the summary from the District Court file which refers to the judge's final order being filed on 29 March 2011. He states that he based his calculation of the one month appeal period from 29 March and not from the date of delivery of the reasons and orders on 28 March 2011.
The applicant is an experienced self-represented litigant in the Queensland courts so that his excuse is not entirely persuasive. But it does provide some explanation for the short delay in progressing his appeal rights in this Court. The real issue is whether, in light of the extraordinarily lengthy delay since the original decision in the Magistrates Court, it is in the interests of justice to now grant him an extension of time for leave to appeal: R v Tait.[2] This requires a consideration of the lengthy chronology and complex history preceding the present application.
[2][1999] 2 Qd R 667, 668; [1998] QCA 304.
The proceedings on 3 May 2002
The contempt of court was charged as occurring on 3 May 2002 at the committal hearing of Pauline Hanson and David Etteridge during the testimony of a witness, Mr Christopher John Bramwell. The applicant, who then used the name Ned Kelly, was present in court seated near a court recording microphone on a bar table behind the principal bar table. Ms Hanson's solicitor, Mr Nyst, was cross-examining Mr Bramwell when the transcript records the following:
MR NYST: Only to Mr Payne. And Mr English -----? --
WITNESS: And as subsequent to Mr Payne I actually helped Mr Payne out with a matter that was against [the applicant] by doing an affidavit where [the applicant] was hiding from a – someone who was trying to serve him some documents, bankruptcy documents.
UNIDENTIFIED SPEAKER: Oh, he'll die - he'll die for that one.
MR NYST: Okay. Well -----
PROSECUTOR: Your Worship -----
MAGISTRATE: Look, where are we going with this, Mr Nyst?
PROSECUTOR: Your Worship, I'm concerned about something else as well, perhaps if I can raise it now.
MAGISTRATE: Yes.
PROSECUTOR: There was a comment from the back of the Court, I believe from [the applicant] and -----
MAGISTRATE: I didn't hear any comment.
PROSECUTOR: My – my hearing of it was, "He'll die for that one." I'm asking that he be excluded from the Court.
WITNESS: I heard that, your Worship, as well. I don't have a – my – there have been a lot of -----
MAGISTRATE: Yes. Will you call for security, please.
MR NYST: Your Worship, I've got to say, I'd like to clear that up to find out what the wording was.
UNIDENTIFIED SPEAKER: I'll just go, your Worship.
MR NYST: I must say I didn't hear it and I'm - but I did hear some -----
MAGISTRATE: Well, I didn't hear it.
WITNESS: Your Worship, to say the least, there's a lot of animosity between [the applicant] and myself -----
MAGISTRATE: Yes? -- ----- and -----
Well, I think that we'll get – get these proceedings finished a lot quicker if you would listen to the question -----? -- Yes, your Worship. -----
----- and then answer the question instead of going off on little trips of your own? -- Your Worship.
And, Mr Nyst, could you keep your questions relevant, please, and not ask the same question in more than one manner?
…
[Applicant], you can either go under your own volition or else I'm going to close these proceedings -----
APPLICANT: No, if your Honour – if your Worship says I have to go I'll go. Is that – is that what you're saying?
MAGISTRATE: No, but if you've made a threat to a witness in this Court I deal – I treat it very seriously.
APPLICANT: Well, is your Worship saying I made a threat?
MAGISTRATE: I am told that you made a threat.
APPLICANT: Well, I say that I didn't, sir. Not at all. There's no threat at all.
MAGISTRATE: All right. Well, I'll have to go into evidence on it then. Does – well – well, Mr Prosecutor, did you hear – her any comment?
PROSECUTOR: I heard it, but I'm – the detective was sitting beside me. I can call evidence from the detective.
Magistrate: All right.
PROSECUTOR: Perhaps for the purpose of this I'll call Detective Graham Newton.
MAGISTRATE: Yes, will you stand outside. Oh, witness, did you hear anything? -- Yes, I did, your Worship.
All right? -- I heard that comment from [the applicant].
Go back into the witness box, please. What did you hear? -- Something to 'I'll kill you' that's the only words I heard, your Worship. Or 'kill' was one of the words that came out.
UNIDENTIFIED SPEAKER: Does that help you?
MAGISTRATE: Yes? -- And I recognised [the applicant's] voice.Can you tell who you believe said those words? -- [The applicant]."
(errors as in the original)
The applicant cross-examined the witness, Mr Bramwell, who confirmed that the only words he heard the applicant say was something about "killing" or "I'll kill him." Mr Bramwell added, "When I was giving evidence I heard your voice say about killing me or getting me or kill."
The magistrate then had the tape recording of proceedings containing the contentious comment played in court. It seems it accorded with the transcript set out above.
Police officer Graham Newton next re-entered the witness box. He was told he was on his former oath. The transcript records the following:
"NEWTON: Your Worship, not five minutes ago whilst sitting here I actually was looking at [the applicant] whilst Mr Bramwell was under cross-examination and I actually saw [the applicant] and heard him say words, 'You'll die for that one.' "
The magistrate asked the applicant if he had any questions and the following exchange occurred:
"APPLICANT: I do, your Worship. I'm not in a position to question him properly. What I'd prefer to do, as we're going to have this pantomine, is to withdraw from the Court this afternoon and I'll come back on Monday morning to question Mr Newton. I mean, I'm not prepared to question him but I know exactly what I want to say.
MAGISTRATE: Well, you either question him now or you don't question him.
APPLICANT: Well, that's unsatisfactory. I'm not prepared for that and if this is going to lead to me being excluded out of these proceedings I wish to stay this so that I can prepare myself to properly cross-examine Mr Newton.
MAGISTRATE: You'll have an opportunity to ask him questions now.
APPLICANT: Well, I can't ask him questions, I don't have the material I need to refer to.
MAGISTRATE: What material do you have to refer to?APPLICANT: Well, I've - your Worship will remember I came before this Court… some days ago. … And Mr Newton had made… allegations then."
(errors as in the original)
The prosecutor submitted that the applicant should be held in contempt. The magistrate responded:
"Yes. I'm satisfied at the moment that the conduct of the - [applicant] constitutes wilful insult to a witness, at least, within the meaning of section 40 of the Justices Act and I order and direct that he be excluded from this Court and I reserve the right to consider further the question of contempt and whether these papers ought to be submitted to the Attorney.
Mr Security Guard, would you please exclude [the applicant]?
APPLICANT: Yes, I'm going. Hang on. Your Worship, is that permanently out of these proceedings, [just] so I know, or is it for today only?
MAGISTRATE: It is until further order."
The proceedings on 7 May 2002
The applicant then brought an application before Muir J in the Trial Division of this Court during which, the applicant reported, his Honour suggested that the applicant should speak to the prosecutor and the Magistrates Court registry staff to arrange to appear before the magistrate and "apologise for any comment that [the applicant] had made that was inappropriate, explain that it was involuntary and, certainly, explain that it was no wilful threat or any threat to anybody in the Court, let alone the witness". Purportedly acting on that suggestion, the applicant arranged for the registrar to have the matter listed before the magistrate on 7 May 2002.
When the applicant was called into court, he explained that his comment was involuntary and not intended to upset the court. He apologised that it had caused so much trouble for everyone, including himself. He stated that his comment was not directed at Mr Bramwell, whom he did not think heard it and used the incident "opportunistically to vilify" the applicant. The applicant submitted there was nothing wilful in his behaviour. Members of the public in court often made comments to themselves when hearing evidence which they "knew to be absolutely wrong in every respect". His comment would not have been recorded had he not been sitting with a microphone at his elbow. He believed he had been unfairly singled out. He asked the magistrate to lift the order removing him from the court room.
The prosecutor submitted that, as the applicant had disrupted the court, the interests of justice required that he continue to be excluded from the court room. The applicant countered this submission by stating that he did not disrupt the court; the disruption was caused by police officer Newton and the prosecutor.
The magistrate adjourned the court to consider his decision. Some time later, the court resumed and the magistrate refused the application to vacate the order excluding the applicant from the court room. His Honour charged him with two counts of contempt under s 40(1) Justices Act, namely, that, by making the comment "Oh, he'll die. He'll die for that" during the examination of the witness Bramwell, he wilfully insulted the witness (the first count), and further, that by making that comment he wilfully interrupted the examination of witnesses (the second count).
The magistrate asked if he wanted an adjournment to obtain legal advice. The applicant requested an adjournment of seven days, stating that he had applied for legal aid and it would take two days for Legal Aid Queensland (LAQ) to decide his application. The magistrate adjourned the hearing of the charges until 9.00 am on 14 May 2002 and gave the applicant bail on his own undertaking. At the applicant's request, the magistrate directed that a copy of the transcript of the hearing be made and provided to the applicant as soon as practicable.
The proceedings on 16 May 2002
No doubt because of the lengthy effluxion of time, it is now not easy to be precise about the listing history of this matter. The bench charge sheet does not record any entry for 14 May 2002 but it records that on 16 May 2002 the matter was mentioned before the magistrate. Mr P M Jensen of counsel from LAQ stated that the applicant's application for legal aid was only received the previous day and was being processed. He requested the matter be adjourned for about three weeks so that, if aid were granted, the matter could be prepared.
The magistrate explained that charges of contempt were normally heard summarily on the same day they arose; that it was a very simple matter and an application for legal aid in a case like this should be expedited. His Honour nonetheless acceded to Mr Jensen's request and adjourned the proceedings until 3 June 2002 and again enlarged the applicant's bail.
The proceedings on 19 August 2002
According to the bench charge sheets, the matter was again mentioned on 3 June and 6 August 2002 before coming on for hearing on 19 August 2002. On 19 August 2002, Ms Gilbert, a solicitor from LAQ, noted that LAQ was "on the record on the previous occasion" and sought leave to withdraw. She stated that when the applicant "applied for legal aid, he having done so on the 16th of May of this year, he was granted aid on a conditional basis, that being, he will be granted representation for a plea of guilty, not to defend the matter." It seems she produced a copy of a letter from LAQ's Mr Jensen to the applicant confirming that aid was granted on that limited basis. Ms Gilbert added that the applicant claimed that he did not receive the letter.
The magistrate observed that, although s 40 Justices Act envisaged an immediate summary procedure, he had given the applicant the opportunity to seek legal representation. He confirmed with Ms Gilbert that the applicant had been given legal advice and then gave her leave to withdraw. She declined his invitation to remain as amicus curiae. She stated that she had given the applicant copies of the relevant portions of the court transcript and a copy of the court's tape recording of the relevant proceedings which LAQ had obtained for him.
The applicant stated that he had appeared before the court on 3 June 2002 when the matter was adjourned to 6 August 2002. He claimed that he was told he did not have to appear on 6 August and had no idea what happened at that mention. He handed up a letter dated 19 August which stated that he had been granted legal aid only on a plea of guilty. He stated that LAQ advised him the previous Friday (16 August 2002) that aid would only be approved for a guilty plea. Until then, he believed LAQ would defend him on these charges. He always intended to plead not guilty. He had a one hour conference with Mr Jensen after which he still believed LAQ would be defending him. He submitted that, as he had not been charged previously with a criminal offence and was now self-represented, and LAQ having withdrawn at short notice, he should be given an adjournment to properly prepare the matter. He asked the magistrate to order that he receive legal assistance or to stay the proceedings against him. He also asked that the matter be heard by a different magistrate as there was a conflict of interest in that this magistrate was determining whether proceedings before him constituted contempt of court. It was a breach of natural justice, he submitted, for the magistrate to hear the matter.
The applicant told the magistrate that four channels were recording the court proceedings when the contentious comment was made. The first was on the bench; the second was in the witness box; the third was on the first bar table; and the fourth was on the second bar table where the applicant was sitting on 3 May 2002. His contentious comment could only be heard on the fourth channel. His comment did not interrupt the court proceedings. Many people were making comments in the court room. The witness Mr Bramwell opportunistically perjured himself to try and create difficulties for the applicant. The applicant wanted to cross-examine police officer Newton about his motive but he was not presently prepared for that cross-examination.
The magistrate determined as follows. Although the court constituted by him brought the charges against the applicant, s 40 Justices Act contemplated that the same court would deal with the charges. It was not a conflict of interest for the magistrate to do this. On 3 May 2002, the magistrate explained to the applicant the charges against him and granted his application for an adjournment to seek legal representation. The applicant subsequently obtained legal aid and received advice from LAQ. The matter was then listed several times before the Magistrates Court, differently constituted. The applicant was formally given written particulars of the charges. He had more than reasonable opportunity to seek and to obtain legal advice. He was granted legal aid on the basis that he pleaded guilty. The court had no power to order that the applicant be provided with legal assistance at the public expense. The applicant had not shown any reason why the proceedings should be stayed permanently. Having regard to the facts of this case, the interests of justice warranted that it be determined now. It was appropriate under s 40 that he, as the magistrate constituting the court in which the alleged contempt occurred, now hear the case. The applicant was able to have a fair and impartial hearing before the court as presently constituted. The magistrate concluded that it was not appropriate to grant the applicant another adjournment.
The prosecutor submitted that it would be appropriate to only convict the applicant of the second charge, that of wilfully interrupting the proceedings, as it may be duplicitous to convict him of both charges; the charges may have been intended to be in the alternative. He urged the magistrate to find that the contentious comment was made and submitted that the magistrate would be satisfied beyond reasonable doubt that the applicant was guilty of contempt within s 40(1)(c) Justices Act.
The magistrate informed the applicant that he was satisfied beyond reasonable doubt that the evidence constituted a contempt of court and called on the applicant under s 40(1)(c) to show cause why he should not be convicted of contempt.
The applicant said he was confused and wanted to "submit evidence". The magistrate told him he could attempt to show cause. He called police officer Newton to give evidence. Police officer Newton agreed he was the detective inspector in charge of the investigation into the criminal charges brought against Ms Hanson and Mr Etteridge. During the applicant's examination of him, the applicant called for the playing of the court tape recording of the contentious comment. The applicant emphasised that he made the comment involuntarily and not wilfully.
Police officer Newton stated that he heard the applicant make the contentious comment and he turned around and looked at him whilst he said it. He was about three metres from the applicant and the applicant was about a metre behind Mr Etteridge and Mr Nyst. Police officer Newton considered his hearing was normal. The court tape recording of the contentious comment was played. Police officer Newton agreed that the prosecutor drew the court's attention to the applicant's comment. The applicant asked for the tape recording of the comment to be replayed. The magistrate asked him how much longer he would be in his "show in Court" and stated that he wanted the matter finalised that day. The applicant continued to question police officer Newton, but on irrelevant matters.
In cross-examination by the prosecutor, police officer Newton repeated that the applicant was clearly looking at the witness Mr Bramwell when he made the contentious comment.
After police officer Newton was excused, the following exchange occurred:
"MAGISTRATE: Yes, [applicant]?
APPLICANT: I could call another interposing witness, but I - I wish to call the clerk of the Court who officiated for your Honour on Thursday.
MAGISTRATE: Why do you want to call the clerk?
APPLICANT: Because, your Honour, I'm going to ask the clerk whether he received instructions from you to come down and cross-examine me when I was sitting in the public gallery at the back of the Court, or perhaps I could ask your Honour to take the witness stand on that point?
MAGISTRATE: You're not going to ask me to give evidence.
APPLICANT: No, I didn't think so, so can we call the clerk, please?" (errors as in the original)
The magistrate responded that the clerk's evidence did not appear to be relevant. If the applicant wished to call the clerk he could do so, but the magistrate would not provide assistance. The applicant then asserted that the clerk's evidence would show "malice on behalf of the bench towards [the applicant]".
The applicant next called Allan George Skyring but his evidence need not be summarised here as it was not relevant.
The applicant then stated that he wanted to call the chief clerk of the Magistrates Court, but he did not call this witness. The applicant told the magistrate that he would give evidence himself and that he wanted to call Mr Nyst, Mr Etteridge and Mr Bramwell, none of whom were present. The court arranged for Mr Nyst and Mr Etteridge to give evidence by telephone link.
Mr Etteridge explained that at the time any comment was made his focus was on the exchange between Mr Nyst and Mr Bramwell. He only became aware that something had happened when the prosecutor interrupted the proceedings on the instigation of police officer Newton.
Mr Nyst stated that when the comment was made, he was aware only that something was said at the back of the court. He did not identify the words as being a comment made to anybody in particular and did not hear what was said. He was unaware of any interruption and he forged on with his questioning of Mr Bramwell. In cross-examination he agreed that at the relevant time he was concentrating on his evidence; he had his back to the applicant; and his hearing was "not a hundred per cent".
The applicant gave evidence to this effect. Immediately before he made the contentious comment, he was shocked that Mr Bramwell had told such an outrageous lie in court. This made him involuntarily say "Oh, you'll die for that one." He had always admitted making the comment. Contrary to Mr Bramwell's allegations, he would never hide from anybody wishing to serve him with bankruptcy documents. He set out his long history of discord with Mr Bramwell. The applicant made the contentious comment, not as a threat but simply as an involuntary utterance, like swearing when you kick your toe. He had listened to the court tape recording of the contentious comment by playing each of the four channels separately. Neither channel 1 nor channel 2 recorded the comment. [3] Only on channels 3 and 4 was the comment audible when the tape recording was played at a normal volume.[4]
[3]See [20] of these reasons.
[4]Above.
He was attending the committal proceedings because it related to various court proceedings he was conducting. He knew Mr Bramwell to be an untruthful person and, as he listened to Mr Bramwell's answers in cross-examination, he knew he was untruthful. Mr Bramwell claimed that the applicant was hiding from someone trying to serve him with bankruptcy documents. The applicant emphasised that he was shocked by this. It was "an outrageous lie" which caused him to involuntarily comment to the effect of "Oh, you'll die for that one." The applicant had always admitted making the comment, including in his proceedings before Muir J. When the magistrate excluded him from the court room, he believed the police, and particularly police officer Newton, were motivated to do so because he was assisting Mr Etteridge, and indirectly Ms Hanson. He was helping them only because he did not want them to be convicted on false testimony like that given by Mr Bramwell.
He tried to remedy his wrongful exclusion from the court by bringing proceedings before Muir J who suggested that the applicant approach the Magistrates Court and apologise. He bumped into Mr Skyring in the street and Mr Skyring gave him some advice as to how to do this. The applicant approached the prosecutor when he came out of court, but he was busy with witnesses and would not speak to the applicant. The applicant then approached the clerk of the court and had the matter re-listed for hearing in the afternoon of 7 May 2002. He had a brief discussion with the prosecutor beforehand. After he was charged in court, he was granted bail. He was unable to obtain legal advice until Mr Jensen, a barrister employed by LAQ, appeared at the court quite unexpectedly.[5] Mr Jensen obtained an adjournment and gave the applicant his phone number. The applicant kept an appointment with him in late May 2002 and they discussed how he could defend the matter. The applicant believed he would be represented by LAQ in contesting these charges. He left it to LAQ to prepare his defence. It was only on the preceding Friday (16 August 2002) that he was told that his legal aid was only for a plea of guilty.
[5]This seems to be a reference to 16 May 2002; see [15]-[16] of these reasons.
In cross-examination, the applicant stated that he made the contentious comment in a way which was only slightly audible, under his breath. He repeated that it was the sort of involuntary comment people make when they stub their toe. He denied the comment amounted to a threat to kill, or any threat at all, to Mr Bramwell. He agreed he was incensed, shocked and angry at Mr Bramwell's false testimony, so much so that he made an involuntary comment. He denied that he chose to make the contentious comment or that he made it deliberately to either unsettle, threaten, interrupt or intimidate Mr Bramwell. The applicant agreed he was looking directly at Mr Bramwell at the time he made the comment. He denied that he had no respect for the proceedings. He agreed that he described the court proceeding as a pantomime and that to some degree he thought it was.
The prosecutor submitted that the applicant did make the contentious comment and it did in fact interrupt the proceedings. It was a matter that went to the very heart of the criminal justice system. Witnesses are entitled to give evidence without being threatened or subjected to interjection. The magistrate should find the applicant guilty.
The applicant protested that because this case had been forced on at short notice he had not been able to prepare it and there were other witnesses he wanted to call. As to the charge of wilfully insulting a witness, Mr Bramwell did not hear the contentious comment and so could not have been insulted or threatened by it. There is no evidence that the applicant made the comment wilfully. He made the comment involuntarily, as people often do when something happens that they do not like. The comment was intended as conveying that God would get Mr Bramwell for his lies.
He handed to the magistrate the following decisions which had been provided to him by Mr Jensen: Coward v Stapleton;[6] Murphy v The Magistrates Court at Prahran;[7] R v Queensland Television Limited, ex parte Attorney-General;[8] Gliosca v Ninyett;[9] and Lewis v Judge Ogden.[10] The magistrate noted that relevant passages in the text had been underlined. The applicant stated that he had not read the cases.
[6](1953) 90 CLR 573; [1953] HCA 48.
[7](1995) 80 A Crim R 92.
[8][1983] 2 Qd R 648.
[9](1992) 10 WAR 562.
[10](1984) 153 CLR 682; [1984] HCA 28.
The applicant renewed his application made at the commencement of the hearing and repeated his previous contentions as to why his contentious comment was not a contempt.[11]
[11]Set out at [19] of these reasons.
In reply, the prosecutor referred to Windmill v Kerr[12] where the court held that for the purpose of a provision akin to s 40(1)(a) Justices Act, it was not necessary that the magistrate actually hear the contemptuous comment.
[12][1980] QL vol 7 type 2.
The magistrate's ruling
The magistrate gave the following ex tempore reasons. The applicant was present in court at the committal proceedings on 3 May 2002. During Mr Bramwell's cross-examination by Ms Hanson's solicitor, Mr Nyst, someone in the court made the comment "'Oh he'll die' – 'he'll die for that one'." The comment was heard by police officer Newton and by the prosecutor, who requested that the person making the comment be excluded from the court. The magistrate listened to the court's tape recording of proceedings and heard police officer Newton give evidence. His Honour was then satisfied the applicant made the comment, excluded him from the court under s 40 Justices Act, but reserved the question of whether the applicant ought to be summarily convicted of contempt. He subsequently charged him with two counts of contempt under s 40(1) Justices Act, namely, that by making the comment during the examination of the witness Mr Bramwell he wilfully insulted the witness; and that by making that comment he wilfully interrupted the examination of witnesses.
His Honour observed that the summary power to punish for contempt should be used sparingly and only in serious cases to vindicate the integrity of the court and its proceedings: Lewis v Judge Ogden.[13]After referring to the evidence given on 3 May and 19 August 2002, the magistrate concluded that the applicant made the contentious comment. The real issue was whether he did so "wilfully" within the meaning of s 40(1). Both police officer Newton and the prosecutor heard the comment. The prosecutor had a duty to bring to the attention of the court any untoward conduct impinging upon the integrity of the court or its procedures and the safety of witnesses and accordingly informed the court of the applicant's comment. In Gliosca v Ninyett,[14] in respect of proceedings brought under legislation comparable to s 40(1)(c) Justices Act, the court noted:
"What occurs must be capable of being seen as a deliberate or intentional process or delay or obstruction of the proceedings of the court if the conviction is to be sustained."
[13](1984) 153 CLR 682; [1984] HCA 28.
[14](1992) 10 WAR 562, 567.
The magistrate was satisfied beyond reasonable doubt that the applicant, in making the contentious comment interrupted the proceedings. His Honour accepted the evidence of police officer Newton that he was watching the applicant and heard him make the comment looking directly at the witness Mr Bramwell who heard "a portion of the utterance". The magistrate was satisfied beyond reasonable doubt that the applicant's comment interrupted the court and also that the applicant interrupted the court wilfully. The applicant made the comment in an audible fashion whilst deliberately looking directly at the witness. The applicant had committed a contempt in breach of s 40(1)(c).
His Honour cited Lord Denning in Attorney-General v Butterworth:[15]
"[T]here can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it."
The magistrate considered those words were equally apposite to a threat or something similar made to a witness giving evidence in court, which is clearly audible to persons present in the court.
[15][1962] 3 All ER 326, 329; [1963] 1 QB 696.
His Honour also cited Dunphy J's observations in Industrial Registrar v Smith:[16]
"[A]n approach to a witness…constitutes the worst form of contempt because it amounts to a negation of the right of free expression and free speech in the witness-box, and this strikes at the very roots of our judicial system."
[16](1949) 65 CAR 1137, 1141.
The magistrate noted that the applicant gave and called evidence in an attempt to show cause why he ought not be convicted of contempt of court. The issue was not whether he made the comment but whether he made it wilfully. The magistrate found the comment was wilfully uttered and that the applicant had not shown cause why he ought not to be convicted of contempt. Accordingly, the magistrate convicted him, but only on the second count. The first count was "superfluous and duplex" and his Honour dismissed it.
In sentencing, the magistrate noted that the applicant had not pleaded guilty nor given an unqualified apology, although he had offered an apology of sorts.[17] The maximum penalty was two penalty units or imprisonment for 14 days. The applicant had no criminal history other than a conviction in 1996 for failing to lodge an income tax return. There was a long history of personal animosity between the applicant and the witness, Mr Bramwell. Under the Penalties and Sentences Act 1992 (Qld), imprisonment was a last resort. A custodial sentence was not necessary but a deterrent sentence must be imposed to show the applicant and others of "his ilk" that courts will not tolerate such conduct. The judge imposed the maximum fine of $150, in default six days imprisonment. In the absence of any other competing considerations, the seriousness of the contempt, which concerned the integrity of the judicial system and the protection of witnesses, warranted the recording of a conviction.
[17]See [11] of these reasons.
The District Court application
The applicant did not pursue his appeal rights to the District Court for many years. It was not until September 2010, more than eight years later, that he applied for an extension of time to appeal against his conviction. His application to extend time and his application to adduce further evidence was heard in the District Court on 28 March 2011.
The judge refused the application to adduce the further evidence contained in the affidavit of Lillian Lawson Geddes sworn 29 October 2010. Ms Geddes' evidence was that, during an adjournment in the court proceedings on 19 August 2002 at the Brisbane Magistrates Court, the magistrate entered the well of the court next to the recording clerk's work table and spoke to a police officer, the prosecutor and the prosecutor's clerk in a familiar manner. Ms Geddes did not hear the conversation.
The District Court judge noted the lengthy time lapse since the relevant events. The prosecution claimed to have suffered forensic disadvantage: it would be difficult to find witnesses who could now recall events and conversations which might gainsay Ms Geddes' account. The judge accepted that this was a significant forensic disadvantage to the respondent and concluded that in the circumstances, the applicant should not be permitted to rely on Ms Geddes' evidence.
In his application for an extension of time to the District Court, the applicant claimed that delay had been occasioned by his illness; that he should have been given time to organise his case and been granted an adjournment; that the magistrate denied him a fair trial; and that there was no prejudice to the respondent by the granting of his application to extend time.
His proposed grounds of appeal to the District Court were that the magistrate erred in refusing a stay or adjournment in circumstances where he had no legal representation; he was denied procedural fairness; the magistrate was not impartial and there was an apprehension of bias so that the proceedings miscarried; the applicant did not get a fair trial; there was insufficient evidence to convict him; and the magistrate erred in convicting and fining him and gave insufficient weight to his apology or the effect of the conviction on his professional standing and livelihood as an accountant.
After receiving written and oral submissions from the applicant and the respondent, the District Court judge gave ex tempore reasons refusing the application for an extension of time. His Honour noted that his conclusion would have been the same had Ms Geddes' evidence been before him. Ms Geddes in her affidavit claimed to have observed the magistrate speaking to a police officer, the prosecutor and the recording clerk during the luncheon adjournment in a familiar manner but it was not suggested they were discussing the contempt case. The judgment from which the applicant wished to appeal was approaching nine years old. After setting out the circumstances leading to the applicant's conviction for contempt under s 40(1)(c) Justices Act, his Honour noted that the applicant claimed to have received advice from LAQ that he had an arguable case and believed he would be represented by someone from LAQ on 19 August 2002. As it transpired, he was not legally represented and he conducted his own defence as LAQ was only prepared to represent him on a guilty plea and he pleaded not guilty.
His Honour noted the applicant's contention that the magistrate wrongly refused his application for an adjournment to get legal representation. The applicant did not suggest that he asked for an adjournment to call or obtain further evidence. He claimed to have been in an emotional state at the hearing on 19 August 2002. The judge was prepared to accept that the applicant was not able to represent himself as effectively as if he had been calm. His Honour referred to the grounds in the applicant's proposed notice of appeal and noted that it had been amended to also challenge the sentence.
The major hurdle to granting an extension of time was the extraordinary delay. His Honour noted that the applicant was deserving of sympathy in that he had experienced in recent times "matrimonial issues", and in 2006 he had been diagnosed with bipolar disorder. Even so, these matters did not explain the great delay in progressing his appeal rights. The applicant had provided medical evidence that, on 18 May 2007, he should not be involved in court proceedings; required medication; and his condition would stabilise within three months. There was also evidence that from June 2007 he was "then very stressed out". But that was the extent of the medical evidence; it did not explain the extraordinary delay.
Indeed in 2004 the applicant was sufficiently confident and competent to argue his case before Mackenzie J in the Supreme Court in Sharples v Crime & Misconduct Commission & Ors.[18] Mackenzie J explained the appeal process from the magistrate's decision under the Justices Act.[19]Despite receiving that information from Mackenzie J in 2004, the applicant did not apply for an extension of time to institute an appeal for many more years. The applicant accepted that Mackenzie J brought his attention to the appeal process and that he was aware of Ms Geddes' evidence by January 2003. Apart from an explanation for a three month delay, the applicant had not provided any satisfactory explanation for his delay from the time Mackenzie J drew his attention to the proper appeal process. Nor had the applicant otherwise provided any satisfactory explanation for the extreme delay. His prospects of success in any appeal seemed poor. The prosecution would suffer forensic disadvantage if the appeal were now allowed to proceed.
[18](2004) 146 A Crim R 20; [2004] QSC 162.
[19]Above, [27].
The applicant's present contentions
If now granted an extension of time, the applicant's grounds of his application for leave to appeal would be that the District Court judge erred in failing to permit him to rely on the evidence of Ms Geddes or to listen to the master tape recording of the proceedings in which he made the contentious comment. He would further contend that the District Court judge misdirected himself and erred in refusing him an extension of time to file his notice of appeal. He would also argue that the magistrate misdirected himself in refusing to adjourn the proceedings when LAQ did not represent him; and denied him procedural fairness when he was not ready to defend his case because of the withdrawal of legal representation. He would further contend that there was a reasonable apprehension of bias on the part of the magistrate; and that the evidence before the magistrate was insufficient to demonstrate beyond reasonable doubt the element of wilfulness in the charge of contempt.
The applicant submits that this Court should grant leave to appeal because the appeal would raise for consideration issues of importance, including the meaning of "wilfulness" in s 40(1) Justices Act; the proper role of a magistrate in dealing with allegations made during committal proceedings; the circumstances in which an apprehension of bias may arise; and questions of procedural fairness accorded to a defendant whose legal aid is withdrawn and is denied an adjournment and thereby required to appear self-represented.
He now seeks orders extending time, granting the application for leave to appeal, allowing the appeal, and setting aside the judgment of the District Court. He seeks instead orders in the District Court to extend time, to allow the appeal, and to set aside his conviction for contempt in the Magistrates Court.
The relevant legislative provisions
Section 40 Justices Act is included in Pt 3 "Jurisdiction", Div 7 "Interruption of proceedings", and relevantly provides:
"40 Penalty for insulting or interrupting justices
(1) A person who—
(a)wilfully insults …. a witness … during his or her … attendance in a Magistrates Court[20] or … attendance in any examination of witnesses in relation to an indictable offence …; or
[20]The term "court" is defined in s 4 Justices Act as meaning a Magistrates Court.
…
(c)wilfully interrupts the proceedings of such a court or examination; …
…
may by oral order of such court or justice, 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.(2)A person convicted under subsection (1) is liable to a maximum penalty of 2 penalty units or imprisonment for 14 days.
(3) A person referred to in subsection (1)—
(a)may be dealt with under this section without a complaint being made or a summons being issued in respect of the person;
(b)may be taken into custody by a police officer on order of such court or justice and without further warrant;
(c)may be called upon by such court or justice to show cause why the person should not be convicted of contempt under this section;
(d)may be dealt with by such court or justice under this section upon the court’s or justice’s own view, or upon the evidence of a credible witness.
(4)A court or justice may, if it or the justice thinks fit, accept from any person convicted by it or the justice of contempt under this section, an apology for such contempt and may recommend that the Governor in Council remit or respite any fine or punishment imposed on such person in respect of such contempt."
Conclusion
The issues the applicant now raises are essentially those he raised before the District Court judge.[21] His Honour considered those issues carefully and gave sound reasons for rejecting them. But I will deal briefly with each of the applicant's present contentions.
[21]See [53] of these reasons.
The first concerns Ms Geddes' evidence. The judge was plainly right to refuse the application to adduce evidence from her. It was of questionable relevance and was unlikely to have had any bearing on the applicant's conviction for contempt. The evidence was available to the applicant since 2003 but he made no application to adduce it until late 2010. As the District Court judge appreciated, the applicant's lengthy delay in pursuing his appeal rights and in giving the respondent notice of Ms Geddes' evidence placed the respondent at a real disadvantage.
The applicant now contends that he should have been permitted to listen to the master tape recording of the court proceedings of 3 May 2002 in which he made the contentious comment to show that, on some channels, his comment was not audible at normal sound levels. It was abundantly clear to the magistrate and the District Court judge that neither the magistrate, nor Mr Nyst, nor Mr Etteridge heard the content of the applicant's comment. Playing the tapes channel by channel would have achieved nothing more than to confirm what was already clear on the evidence before the magistrate.
The prosecutor and police officer Newton, however, did hear the content of contentious comment. It was capable of being interpreted as a threat to the witness, Mr Bramwell. It followed that the prosecutor, as an officer of the court, was obliged to inform the magistrate of the comment. This did not mean that the applicant's comment was not the cause of the resulting interruption to the examination of witnesses in the committal proceedings. I reject the applicant's submission that police officer Newton and the prosecutor were the cause of the interruption. It was clear that the witness, Mr Bramwell, did not hear or recall the precise wording of the applicant's comment, but that did not disentitle the magistrate from accepting that Mr Bramwell sufficiently heard the applicant’s comment to interpret it as a threat to him.
The applicant has not persuaded me that the magistrate erred in refusing to grant the applicant an adjournment on 19 August 2002. The magistrate understood that s 40 permitted him to deal with the matter summarily and speedily. The contentious comment was made on 3 May 2002. The applicant was given at least five adjournments prior to 19 August 2002 to obtain legal advice and to prepare his case. He did receive advice from LAQ as to the conduct of his trial. He conceded that he knew the preceding Friday (16 August 2002) that LAQ would not represent him at his trial. It was obvious that he had, in fact, prepared his defence. This was demonstrated by his conduct of the proceedings in which he called and examined witnesses, gave evidence, handed up relevant case law and made focussed (although highly repetitive) submissions. He has not established what more he could have done to progress his defence had an adjournment been given. He has not demonstrated that he suffered any prejudice resulting from the magistrate's refusal to grant an adjournment. The magistrate's decision to refuse his application for an adjournment was within the bounds of a sound exercise of discretion. It did not amount to a denial of procedural fairness.
The applicant further contends that the District Court judge should have appreciated that there was a reasonable apprehension of bias on the part of the magistrate and that this required the setting aside of the conviction. A Magistrates Court which suffers an alleged contempt can itself deal with the alleged contemnor under s 40(2) Justices Act; so much is contemplated by s 40(3) Justices Act. The magistrate explained to the applicant the charges brought against him and gave him a reasonable opportunity to obtain legal advice and to show cause why he should not be convicted. The magistrate was patient and courteous in challenging circumstances. The applicant claimed the magistrate's bias was demonstrated by the use of the words others of "his ilk"[22] when sentencing him. In context, those words were entirely appropriate. The applicant’s contention of real or apprehended bias is baseless.
[22]See [48] of these reasons.
The applicant's principal submission is that the District Court judge erred in refusing to grant an extension of time to appeal, essentially because the magistrate should not have been satisfied beyond reasonable doubt that the applicant made the contentious comment with the intention of wilfully interrupting the proceedings. It is a clear inference from the magistrate's findings that his Honour did not accept the applicant's contention that he made the comment automatically, as a reflex action to what he perceived to be Mr Bramwell's lies about him. The magistrate was better placed to determine that issue than either the District Court judge (who, it seems, agreed with that assessment) or this Court. The magistrate accepted police officer Newton's evidence that the applicant was looking straight at Mr Bramwell when he made the comment. It is significant that the applicant was not a mere observer in the court's public gallery. As he explained, he was assisting Mr Etteridge, and indirectly Ms Hanson, in defending their committal proceedings and for this purpose was seated at the second bar table near a court microphone which was recording proceedings. The magistrate was entitled to conclude that the applicant must have known that, if he made comments which could be construed as a threat to a witness, he would interrupt the Magistrates Court committal proceedings during which Mr Bramwell was giving evidence on an examination of witnesses in relation to an indictable offence. The magistrate was entitled to reject the applicant's claim of involuntariness and to infer that, in making the contentious comment which was capable of constituting a threat to the witness, the applicant wilfully interrupted the proceedings.
As to sentence, the applicant contended that because he was an accountant, he was distressed at having a criminal conviction recorded against him; the District Court judge should have set it aside. I note, however, that the applicant already had a criminal conviction for failing to lodge a tax return. He has not demonstrated that an additional conviction for a contempt of court involving a $150 fine will have any further detrimental impact on him or that the magistrate in any other way erred in exercising his discretion to record a conviction. The applicant wasted a great deal of court time in the way he chose to defend himself. On 7 May 2002, he purported to apologise in a half-hearted manner that made clear he was primarily sorry for himself and was more an attempted justification than an apology.[23] Instead of disposing of the matter that day, he insisted on dragging it out until 19 August 2002. He would have dragged it out even longer but for the magistrate's refusal of his adjournment application. In the absence of remorse or cooperation, the sentence, including the conviction, was not manifestly excessive. The sentence and recording of a conviction provide no reason for extending time for leave to appeal to this Court.
[23]See [11] of these reasons.
As the District Court judge appreciated, the overwhelmingly convincing reason for not granting the applicant's extension of time to that court was the extraordinary and unexplained delay in pursuing his appeal rights. That delay continued for many years, even after Mackenzie J in Sharples v Crime & Misconduct Commission & Ors[24] informed him of his rights of appeal to the District Court under the Justices Act.[25] The District Court judge was plainly right in his approach. Appeal periods are provided for a reason. The community has a real interest in the finality of litigation, including in the criminal courts. That is not to say that courts will refuse to extend time, even where there have been lengthy delays, if the interests of justice require it. But this is not such a case.
[24](2004) 146 A Crim R 20; [2004] QSC 162; See [57] of these reasons.
[25]Above, [27].
The applicant has not demonstrated either that the District Court judge's order refusing his application for an extension of time to appeal to the District Court was wrong, or that the interests of justice require it to be vacated, reversed or varied. It follows that, on the material before this Court, any application for leave to appeal under s 118(3) District Court of Queensland Act would not succeed. It would therefore be pointless to grant the application to extend time. It should be refused.
ORDER:
The application for an extension of time to apply for leave to appeal is refused.
WHITE JA: I have read the reasons for judgment of the President and agree with the order which she proposes for those reasons and the additional remarks of Philippides J.
PHILIPPIDES J: I agree for the reasons stated by the President that the application for an extension of time to apply for leave to appeal should be refused.
As Keane JA stated in Spencer v Hutson [2007] QCA 178 at [28]:
“The prescribed time limits for appeals serve the important purpose of bringing finality to litigation. They are not lightly to be ignored. An applicant for an extension of the time for bringing an appeal must show that there is good reason for the court to relieve that party of the consequences of the expiration of the prescribed period for bringing an appeal. A demonstration that there is a good reason to extend time will usually involve an explanation for that party’s delay.” (footnotes omitted.)
The President has shown in her extensive reasons that there is no adequate explanation for the inordinate delay. Nor has the applicant demonstrated that it is in the interests of justice that leave be given when regard is had to the merits of the proposed appeal. On the contrary, the grant of an extension of time in the circumstances of the present case would tend to erode confidence in the administration of justice: Beil v Mansell (No 1) [2006] 2 Qd R 199 at 209.
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