Thompson v McIntyre SM

[2006] WASC 218

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	THOMPSON -v- McINTYRE SM [2006] WASC 218

CORAM	: BLAXELL J
HEARD	: 31 AUGUST 2006
DELIVERED	: 28 SEPTEMBER 2006
FILE NO/S	:  CIV 2238 of 2005
BETWEEN	: CRAIG ALFRED THOMPSON

Plaintiff

AND

TERRANCE JOHN McINTYRE STIPENDIARY
MAGISTRATE

Defendant

Catchwords:

Courts and judicial system - Magistrates - Jurisdiction and powers - Plaintiff appearing before Magistrate while allegedly intoxicated - Plaintiff remanded in custody for breath test analysis of percentage of alcohol in his blood - Further remand in custody following prosecutor's advice as to breath test analysis result - Whether the Magistrate acted without jurisdiction

Legislation:

Criminal Code Compilation Act 1913 (WA), s 7
Magistrates Court Act 2004 (WA), s 15, s 16, s 37(1)
Road Traffic Act 1974 (WA), s 66

[2006] WASC 218

Result:

Declaration that defendant acted without jurisdiction

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R W Richardson
Defendant	:	No appearance
Attorney General (By leave) :	Mr G T W Tannin SC & Ms K E McDonald

Solicitors:

Plaintiff	:	Aboriginal Legal Service
Defendant	:	No appearance
Attorney General (By leave) :	State Solicitor

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

O'Brien v Northern Territory of Australia [No 2] (2003) 173 FLR 455

Case(s) also cited:

Bennison; Ex parte Fisher SM (1995) 14 WAR 318
Coward v Stapleton (1953) 90 CLR 573
Craig v State of South Australia (1995) 184 CLR 163
Davenport v Vose [2003] WASCA 44
Fingleton v The Queen (2005) 79 ALJR 1250
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Foster v The Queen (1993) 113 ALR 1
Gliosca v Ninyett (1992) 10 WAR 562
Grassby v The Queen (1989) 168 CLR 1
Levy v State of Victoria (1997) 189 CLR 579

[2006] WASC 218

Lewis v Ogden (1984) 153 CLR 682
Macgroarty v Clauson (1989) 167 CLR 251
Morriss v Withers [1954] VLR 100
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Perkins [1980] 4 WWR (Can) 763
Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154
Sankey v Whitlam (1978) 142 CLR 1
Trobridge v Hardy (1955) 94 CLR 147
Walsh v Giumelli [1975] WAR 114

[2006] WASC 218

BLAXELL J

1. BLAXELL J: This is an application for a declaration that the defendant Stipendiary Magistrate acted without jurisdiction in requiring the plaintiff to undergo a breath test analysis, and in remanding him in custody.

2              The plaintiff had previously been released to bail in respect of three

criminal charges and he appeared before the defendant in the Perth Magistrates Court on 26 July 2005 when the matters were listed for mention. After the matters were called on, his Honour formed the view that the plaintiff might be intoxicated, and remanded him in custody so that he could be breath tested to determine whether there was alcohol in his blood.

3              When the matters were recalled later in the day, the court was

informed that the plaintiff's blood alcohol reading was ".1136". The plaintiff was then remanded in custody overnight and was not released to bail again until the following day.

1. In these circumstances, the plaintiff claims a declaration that the defendant acted without jurisdiction and unlawfully:

"(1)	In remanding the plaintiff in custody for the purpose of and with an order or direction that he be given a breath test to determine whether the plaintiff had any alcohol in his blood.
(2)	In remanding the plaintiff in custody for a period of approximately 20 hours solely because he was advised by the prosecutor that the plaintiff's blood alcohol reading was ".1136".
(3)	In depriving the plaintiff of his liberty by ordering that he be taken into and kept in custody for a total period of approximately 22 hours."

5              The defendant does not defend the claim and has filed a notice of

intention to abide by this Court's decision in the matter. The Attorney General has nevertheless obtained leave to appear as Amicus Curiae on the basis that he is the proper contradictor in a case involving alleged want of jurisdiction in a judicial officer, and has ultimate responsibility for the protection of the courts of the State.

[2006] WASC 218

BLAXELL J

Whether a declaration can be claimed

6 Section 25(6) of the Supreme Court Act 1935 and O 18 r 16 of the Rules of the Supreme Court give this Court power to make declarations of right without further orders for consequential relief.

7              Although the discretion to grant declaratory relief is very wide, the

majority of the High Court in Ainsworth v Criminal Justice Commission
(1992) 175 CLR 564 at 582 held that:

" ... it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'." (Citations omitted.)

1. In O'Brien v Northern Territory of Australia [No 2] (2003) 173 FLR 455 which was a case involving circumstances similar to those of the present matter, Martin CJ held (at 463) that:

   " ... if the interest claimed by the appellant is that he had a right to be at liberty, then that is a sufficient interest, and I would declare that in the circumstances proved the appellant had a right not to be deprived of his liberty and that the learned magistrate had no jurisdiction and power to direct that he be taken into custody.

   Such a declaration would serve to oblige the appellant and the learned magistrate to observe in future the rights and obligations which the application of the law to the established facts has shown to exist."

2. Similarly, Mildren J held at 465:

   "I agree also that the appellant is entitled to a declaration. His liberty has been taken from him without any lawful authority, and he has no other means of redress. The courts have always treated the liberty of the subject as a matter of the greatest

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BLAXELL J

importance. ... The declaration proposed may redress some of
the harm done."

10             Accordingly, in the circumstances that are presently alleged, the

plaintiff has a real and not hypothetical interest which is sufficient for him
to claim declaratory relief.

The relevant facts

11             During July 2005 the plaintiff was arrested and charged with

offences of assault occasioning bodily harm, common assault and burglary, the subject of complaints PE 36581/05, PE 36582/05 and PE 38466/05 respectively. He was released to bail on each of the three charges and required to appear in the Perth Magistrates Court on 26 July 2005 when the matters were listed for mention.

12             Prior to appearing in court that day the plaintiff attended upon

Mr Andrew Mathews who was the duty solicitor for the Aboriginal Legal Service at the Central Law Courts in Perth. He instructed Mr Mathews to appear on his behalf and to apply for an adjournment of all three matters so that he could obtain further legal advice. The plaintiff did not provide any instructions as to how he intended to plead to the charges.

13             When the matters were called on in court, the defendant was the

presiding Magistrate. The transcript shows that as soon as the plaintiff
had identified himself, his Honour asked:

"Are you a bit unsteady on your feet, Mr Thompson, or not?"

The plaintiff responded:

"A little bit, Sir."

And when asked by his Honour: "Why's that?", went on to state:

"I've been up all week waiting for this day in court".

14             The plaintiff's counsel Mr Matthews then indicated that he was

seeking a two week remand, and in the course of what followed his Honour asked the plaintiff if he had "been on the alcohol". The plaintiff responded:

"Last night, yeah. Got a bit of a hang over, your Honour."

His Honour then stated:

[2006] WASC 218

BLAXELL J

"All right. Well, the best thing for a hang over is for you to have a bit of a Bex and a lie down. ... So you'll be lying down in the cell and you'll be coming back tomorrow morning."

15             There was then a relatively lengthy exchange between bench and the

plaintiff concerning the extent of the latter's intoxication. The plaintiff maintained that he was not drunk but had a headache and needed "a couple of Panadols". His Honour then directed the following question to the prosecutor:

"HIS HONOUR: Well, any preliminary testing devices around

that you're aware of?

MALE SPEAKER: Not in the courthouse or the law chambers.
There's - -

HIS HONOUR: Well, see if there's one around. You're going into custody over the lunch break, Mr Thompson - -

MR THOMPSON: Yeah.

HIS HONOUR: - - and if there's one available, someone's going to breath test you and see if there's alcohol in your blood, and if there is you'll be staying there. Otherwise, if you're clear of alcohol I might consider releasing you. So ... (indistinct) ... time

MR THOMPSON: I've got a hang over from last night.

HIS HONOUR: Okay.

MR THOMPSON: - - drinking heavily last night.

HIS HONOUR: Okay. That's all right. Don't cause any trouble, because if everything's okay it won't be a problem. In the meantime, though, over the lunch break you are going to be detained in custody and I'll deal with you at 2.15.

MR THOMPSON: 2.15.

HIS HONOUR: Yeah.

MR THOMPSON: What's the time? Can't I go out for lunch, or something?

[2006] WASC 218

BLAXELL J

HIS HONOUR: No, no, no. You'll have lunch. They'll provide you with lunch, so you get a free lunch. All right then. Just sit down there at the back for a moment and I'll see you at 2.15."

1. When the plaintiff reappeared at 2.15 pm, the court was told that "he blew .1136". His Honour then said:

   "All right. You're coming back tomorrow and you're staying in custody until then, because if you want to come to court substantially affected by alcohol, Mr Thompson, you show a blatant lack of regard for what the court's purpose is and that's the outcome. So you're remanded in custody until tomorrow. You'll be appearing in front of me. At least tomorrow you'll have a clear head."

17             On the next day the plaintiff appeared before his Honour once again

and Mr Matthews applied for a two week remand on bail. The following
then occurred:

"MR MATTHEWS: Bail was previously set. I - - correct me if I'm wrong, your Honour, but I understand the purpose of yesterday's exercise was to perhaps serve as an example of him.

HIS HONOUR: Oh, absolutely.

MR MATTHEWS: Yes.

HIS HONOUR: You turn up in court affected by alcohol, Mr Thompson, as you undoubtedly were yesterday, as far as I'm concerned you're showing a complete contempt for the court and the processes of the law, and that's why you've been in custody overnight. So despite what you said yesterday, today I assume you've got a clear head.

MR THOMPSON: ... (indistinct) ...

HIS HONOUR: Well, you'd better keep it clear and you'd better turn up on the 8th of August, sober and responsible. Your previous bail ... That bail is renewed. As I said, next time turn up sober."

Whether the plaintiff is entitled to declaratory relief

18             In the particular circumstance of this case it is necessary to refer to

one of the most fundamental principles of our system of justice, namely

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"the rule of law". Because this rule pre-dates parliaments, it is not to be found in any statute, but forms part of our common law. Put simply (and in the context of the present case) the rule of law means that every person in the community has equal standing before the law, with the same basic rights and obligations as everyone else.

19             Perhaps the most important basic right is that a person's freedom of

action and liberty should not be interfered with except when permitted by law. This right is possessed by every individual in the community including defendants to criminal charges when appearing in court. Even sentenced prisoners enjoy that same right, although they of course are subject to the exception and have lost their liberty in accordance with the law.

20             The rule of law also means that no one is above the law, not even

Judges or Magistrates while sitting in court. Judicial officers have very significant if not awesome powers over people appearing before them, but those powers are not unlimited and can only be exercised in accordance with the law. For this reason, when Judges and Magistrates are appointed they are required to make an oath or affirmation to "do right to all manner of people, according to law, without fear or favour, affection or ill will".

21             As can be seen from the wording of this oath, a Judge or Magistrate

is not free to do justice according to personal whim or fancy, or in accordance with idiosyncratic notions of what is right. The obligation is to do right according to law. This obligation lies at the heart of our system of justice because it ensures that every person subjected to judicial decision making is dealt with equitably and fairly, and not on an arbitrary or ad hoc basis.

22             Quite obviously it is fundamental to the integrity of the justice

system that all judicial officers should remain faithful to their oath. Regrettably, this did not occur in the present case because the Magistrate purported to exercise powers over the plaintiff which he did not have.

23             His Honour firstly required that the plaintiff to undergo a test for

analysis of his breath when there was no power to impose such a requirement. The only provision in the law relating to breath analysis is in s 66 of the Road Traffic Act 1974. That section empowers police officers to require drivers of motor vehicles to provide a sample of breath for analysis. The law allows this infringement of drivers' civil liberties because of the greater public interest in maximising safety on the roads by ensuring that people do not drive while intoxicated. Needless to say the

[2006] WASC 218

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Road Traffic Act is not in any way concerned with the level of intoxication of defendants appearing in court, and it certainly does not empower Magistrates to require any person to provide a sample of his or her breath.

24             Given that the breath analysis in the present case was not authorised

by law, the plaintiff contends that the order for it to be conducted constituted an unlawful assault. Having regard to the party provisions of the Criminal Code and the physical procedures involved in breath analysis, the basis of this contention can be readily understood. However, there is no evidence before me as to the circumstances in which this particular breath test was conducted, nor does the plaintiff claim any relief in respect of the alleged assault. Furthermore, s 30 of the Criminal Code provides that (except as otherwise provided) a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, even though the act done is in excess of his judicial authority.

25             Notwithstanding this immunity from criminal liability, the

requirement that the plaintiff undergo breath analysis was nevertheless unlawful, in the sense that it was not authorised by law. The Magistrate also failed to act according to law in remanding the plaintiff in custody for the purpose of the breath analysis.

26             In this regard, Magistrates do have power to place defendants to

criminal charges in custody, but that power can only be exercised in limited circumstances as prescribed by law. Almost always, the circumstances which justify a remand in custody are amongst those set out in the Bail Act, and there is simply no provision in the law empowering a Magistrate to place a defendant in custody for the purpose of breath analysis.

27             The Magistrate again failed to act according to law when remanding

the plaintiff in custody following the results of the breath analysis. His Honour's stated reason for this second remand was that the plaintiff was "substantially affected by alcohol" and showed "a blatant lack of regard for what the court's purpose is". Although his Honour did not expressly say so, the plaintiff was clearly being punished because of his alleged intoxication. Consistently with this, the plaintiff was told the following day that his remand in custody had served as an "example" because of his "complete contempt for the court and the processes of the law".

[2006] WASC 218

BLAXELL J

28             However, the intoxication of a person appearing in court does not of

itself constitute a contempt of court or any other offence. It is only when such intoxication results in behaviour that is a contempt of court that an offence occurs. In this regard s 15(1) of the Magistrates Court Act 2004 provides that a person is guilty of a contempt of court if the person:

"(a)

while the Court is sitting, wilfully -

(i)	interrupts the proceedings;
(ii)	misbehaves before the Court;
(iii)	insults a person constituting the Court;"

29 Section 16 of the Magistrates Court Act and r 31(2) and r 35 of the Magistrates Court (General) Rules 2005 specify the procedure to be followed when a contempt of court occurs. At the very least, the person said to be in contempt must be orally informed of what is alleged and provided with an opportunity to be heard prior to punishment being imposed.

30             Magistrates also have a common law power to summarily punish a

person for contempt (see s 7 of the Criminal Code Act Compilation Act 1913 and s 4(2) of the Magistrates Court Act). However that power must be exercised in accordance with established procedures under the common law which yet again require that the person be orally informed of what is alleged and be given an opportunity to be heard.

31             None of these procedures were followed in the present case, which is

perhaps not surprising given that the plaintiff was obviously not in contempt. In this regard, the transcript shows that the plaintiff readily answered all questions put to him by the Magistrate and was at all times deferential towards the Bench. There is also evidence on affidavit from Mr Mathews that "whilst in court the plaintiff's demeanour was not aggressive nor did he raise his voice".

32             It follows that the plaintiff was never at any time in contempt of

court nor was he specifically alleged to be in contempt of court. He was remanded in custody overnight simply because of the Magistrate's view that he was intoxicated. Such a remand in custody for 24 hours may have been justified if the plaintiff had been intoxicated to such an extent as to cause the Magistrate difficulty in assessing the appropriateness of bail. However, the plaintiff's alleged intoxication did not present this problem,

[2006] WASC 218

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and the Magistrate did not express any concerns about releasing him on
bail.

33             In all of these circumstances, the actions of the Magistrate in

requiring the plaintiff to undergo a breath analysis and in twice remanding him in custody were not in accordance with the law (and were in that sense unlawful). It follows that the plaintiff has established an entitlement to declaratory relief and there will be a declaration in the terms as claimed in the originating summons. As the plaintiff specifically does not seek costs there will be no order as to costs.