Smith v Brazendale

[2004] TASSC 85

[2004] TASSC 85

CITATION:                 Smith v Brazendale [2004] TASSC 85

PARTIES:  SMITH, Lee Vincent
  v
  BRAZENDALE, Brenda Louise

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 45/2004
DELIVERED ON:  20 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  19 August 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – General matters – Matters of procedural fairness and propriety – Disqualification of magistrate for bias – Provocative behaviour by applicant.

Livesey v New South Wales Bar Association (1983) 151 CLR 288, Kirkland v Tippett [2000] TASSC 94, referred to.
Aust Dig Magistrates [77]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  S J Bender
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2004] TASSC 85
Number of Paragraphs:  17

Serial No 85/2004
File No LCA 45/2004

LEE VINCENT SMITH v BRENDA LOUISE BRAZENDALE

REASONS FOR JUDGMENT  EVANS J
  20 August 2004

1. When called upon to plead to two charges of breaching an interim restraint order, the applicant in effect submitted that because of bias, the learned magistrate should stand aside.  She refused and the applicant has filed a notice of review challenging that failure.

1. A denial of natural justice by reason of actual or apprehended bias is an error of law within the meaning of that term in the Justices Act 1959, s107(4); Schreuder v Australian Securities ComMsion (1996) 6 Tas R 223 at 233 and Kirkland v Tippett [2000] TASSC 94.

1. It is a cardinal principle of the law that a judicial officer should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 – 294. If a judicial officer at first instance considers that there is any real possibility that his or her earlier involvement with a party might lead to a reasonable apprehension of prejudgment or bias, he or she should refrain from sitting. The reasonable observer is to be presumed to approach the question on the basis that ordinarily a judicial officer will so act as to ensure both the appearance and substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the member of the relevant court, Livesey at 299 and Kirkland v Tippett, par20.

1. The applicant informed the learned magistrate that the basis of his application that she disqualify herself for bias was as follows:

"We've previously argued in this court.  I have said that you're not fit to sit on the Bench.  You remanded me in custody for five days on the proof of statement from prosecution.  That's been challenged.  There's been statements made to the police in relation to the testimony of the two detectives and prosecutions going right up to Inspector Ling.  There's a snaky trail of enquiry going on as we speak and it might be at some time in the future that we will be in conflict, your Worship and that might further damage the course of justice if you were to continue."

1. The learned magistrate in rejecting the application, briefly explained that she appreciated that she had had words with the applicant in the past, but that she frequently had angry words with people in the court when they were rude. 

1. The applicant had indeed behaved in an extremely rude, if not contemptuous, way before the learned magistrate in the past and he continued to do so after the ruling in question.  The applicant first appeared before learned magistrate on 24 March 2004 in relation to the two charges of breaching an interim restraint order.  The applicant advised the learned magistrate that he wished to plead not guilty and that he sought bail.  The prosecutor opposed bail and informed the court that that day the police had attended a residence where they spoke to the applicant, Mr Smith, as well as a woman, Christy Mie Capondag.  Ms Capondag is the person in favour of whom the interim restraint order was made and is protected by that order.  As to what then occurred, the prosecutor said the following to the court:

"The police requested that the complainant accompany them to the station to ascertain whether she intended to apply to revoke the order or what her instructions were to be.  It's alleged that this defendant would not allow the complainant to leave the house with the police and that he didn't want them to speak to her.  It's alleged that the defendant stood over the complainant with a piece of paper, a pen, and attempted to dictate to her a statement to withdraw her application.  At that stage, police believe that that complainant was under duress.  The police weren't able to speak to that person to be protected at any point on her own to establish what her instructions were to be.  The defendant was informed that if the order was continuing that they were - that they had 'Well you'll have to fucking arrest me then'."

1. The prosecutor put to the learned magistrate that pursuant to the Justices Act, the protection of the complainant was of paramount importance and for this reason bail should be refused. In responding, the applicant denied that there was any suggestion of violence, intimidation or duress as between he and Ms Capondag and put to the learned magistrate a number of matters and arguments in support of his request for bail.  He described what the prosecutor had said as being a "great big fairy tale".

1. The learned magistrate gave the following reasons for refusing to grant the applicant bail:

"Bail is opposed, effectively on the basis of the safety of Ms Capondag.  The matters outlined in opposition to bail are that … Ms Capondag obtained an interim restraint order against the defendant on the 24th of November 2003, when the matter was returned before a Magistrate of this Court on the 18th of February, Ms Capondag didn't appear but the respondent did; that is the defendant.  He outlined to the Magistrate concerned that he'd taken the complainant to the airport, she wasn't likely to be here at Court, and he asked for the application to be dismissed.  The Magistrate declined.  Police, it appears, went to the home of the defendant this morning.  Both he and the complainant were there.  Attempts were made to talk to the complainant.  I infer, for the purpose of having her indicate clearly to the police whether or not she still wanted the restraint order, and presumably also wanted the defendant charged with any breaches.  The Court has been informed that the defendant refused to allow the complainant to leave the home or speak to police and that he stood over her and attempted to dictate something that could be written for the police.  The police are concerned as to whether or not Ms Capondag's position is being affected by duress from the defendant, and it is for reasons of her effective safety that the bail is now opposed. 

The defendant on the other hand, has indicated that there has been no violence, that there is no duress, that he and Ms Capondag have reconciled, have been living together, that there is no violence involved and that, effectively, this matter is before the Court because the police will not deal with Ms Capondag in a manner in which she wishes to be dealt with.

The Court is clearly in a position where these charges are serious.  The charges have been brought in circumstances where the police have been unable, as the Court is now advised, to ascertain from Ms Capondag whether she wishes to continue with this matter.  The facts outlined to me would indicate that she may have been under duress this morning, and that situation is sufficient to cause the Court concern as to her ongoing safety.  The Court has also been told that if in fact it becomes clear to police that Ms Capondag has instigated, of her own freewill, the alleged breaches of the restraint order that she may also be charged with an offence.

For those reasons, principally the safety of the complainant, I propose to refuse the defendant bail."

1. In response to the rejection of his application for bail, the applicant said to the learned magistrate:

"You've got to be kidding me.  Are you part of this conspiracy too?

…

You should be ashamed of yourself, you'd fucking make a bullshit story out of anything, you could.  I'll be in the Supreme Court tomorrow with an application.  I don't believe it.  You're unfit to sit on that bench."

1. The learned magistrate did not respond to this abuse.

1. On 29 March 2004, the applicant reappeared before the learned magistrate at which time the court was informed that on the application of Ms Capondag, the restraint order had been revoked and that in those circumstances the prosecution did not oppose bail.  The learned magistrate bailed the applicant.  Nothing of relevance to the application before me was said by the learned magistrate or the applicant in the course of this hearing.

1. When the applicant appeared before the learned magistrate on 1 June, he made the application which is the subject of this notice of review.  After the learned magistrate had rejected the application, the following exchange occurred:

"MR SMITH: That's all right.  Prattle on all you like.  I'll just go to the Supreme Court when I've finished here and I'll review you.

HER WORSHIP: That's fine.

MR SMITH: Thank you very much."

1. Thereafter the applicant made reference to an affidavit lodged in the court the previous day in which Ms Capondag "claimed the police told lies" and went on to say to the learned magistrate:

"And you have been part of it.  You set me up and put me down for five bloody days.  You're part of it.  You should sack yourself and you should distance yourself from this case."

1. The learned magistrate ignored this tirade and dealt with the applicant with civility in fixing a date for the relisting of the matter; as to which she accommodated the applicant's advice that he would out of the country on the first date proposed for the hearing.  When she informed the applicant that he was free to go, he responded, "What a joke.  You are a disgrace".  Again, the learned magistrate refrained from responding to this provocation.

1. In explaining to me the background to his challenge to the learned magistrate's failure to disqualify herself for bias, the applicant said the matter went back to last year when his son by Ms Capondag was diagnosed with a condition that involved permanent irreversible retardation.  He spoke of the anger, frustration and grief that followed this diagnosis and linked it to Ms Capondag's initiation of the proceedings that resulted in her obtaining the interim restraining order against him.  He said that because of his long history of making complaints against the police, they had taken advantage of Ms Capondag's allegations and used them against him without any empathy or understanding.  In substance, he said the opposition of the police to his application for bail on 29 March 2004 was a manifestation of a police conspiracy against him and that the learned magistrate's rejection of his bail application resulted from her being a part of that conspiracy.  The applicant having made the same accusation to the learned magistrate, he put to this Court that "on the basis of that accusation I don't think its healthy for the flow of justice that she continue to hear the matter".

1. The applicant referred to bitter dialogue between  he and the learned magistrate on occasions prior to the proceedings that are the subject of the notice of review.  No evidence of this dialogue was before the Court and the applicant did not avail himself of the opportunity to apply for an adjournment in order to bring the evidence before the Court.

1. For present purposes only, I accept that the applicant has good reason to be resentful about his treatment by the police. I have no hesitation in accepting that his child's parlous situation has caused him protracted and profound distress.  As should be obvious, in the absence of any evidence whatsoever linking the learned magistrate to a police conspiracy as asserted by the applicant, these matters have no bearing on the issue for my determination, that is, whether the applicant or the public might entertain a reasonable apprehension that the learned magistrate might not bring an impartial and unprejudiced mind to the resolution of the matter before her.  None of the evidence before me provides any basis for so concluding.  There was nothing unreasonable about the learned magistrate's rejection of Mr Smith's application for bail on 24 March 2004. Her reasons for that decision do not lead to a reasonable apprehension that she will not decide the charges of breaching the interim restraint order impartially or without prejudice.  Those proceedings have been before the learned magistrate on three occasions.  The transcript of those hearings does not reveal one instance on which the learned magistrate failed to treat the applicant with fairness and courtesy.  That the applicant did not return this courtesy does not give rise to an apprehension of bias on the part of the learned magistrate.  No reasonable person could so conclude.  To decide otherwise would result in the absurd situation that a litigant could at will bring a hearing to an end by behaving in a manner that might be offensive to the presiding judicial officer and then asserting bias.  Judicial officers are obliged to discharge their professional duties unless disqualified by law.  They are not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification.  Applications of this kind are sometimes made in the hope of securing an adjudicator more sympathetic to a party's cause or in order to seek some other strategic advantage; Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 and Johnson v Johnson (2000) 201 CLR 488 at 504 [45]. The grounds for the notice to review have not been made out. It is dismissed.