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[2014] QDC 128
General information, not legal advice.
District Court of Queensland
2014-05-29
Original judgment source is linked above.
CRIMINAL LAW - MISCELLANEOUS OFFENCES AND MATTERS - OTHER OFFENCES - where the appellant was convicted at a summary trial of various offences under the Body Corporate and Community Management Act 1997 (Qld) - where adjudicator made orders in accordance with Body Corporate and Community Management Act 1997 (Qld) s276 - whether registration of adjudicator's order a precondition to enforcement proceedings.
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES - where the appellant was convicted at a summary trial of various offences under the Body Corporate and Community Management Act (Qld) - where the appellant was self represented at trial - where the appellant was given no information concerning trial procedure - where the appellant elected to absent himself part way through the trial hearing - where the trial continued despite no formal application or order being made - whether the irregularities in trial procedure amounted to a miscarriage of justice - whether the appellant was denied natural justice - whether the appellant was denied procedural fairness.
Justices Act 1886 (Qld) ss 222, 225(2).
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
MBL v JP [2011] QCA 220.
Pettitt v Dunkley [1971] 1 NSWLR 376.
Tierney v Commissioner of Police [2011] QCA 327. Tompkins v Honeyman [2009] QCA 217.
[2] The appellant, Ricardo Romero, appeals from a conviction in the Beenleigh Magistrates Court on 29 August 2012 in respect of 14 charges pursuant to s.288(1) of the Body Corporate and Community Management Act (Qld) 1997 ("BCCMA"). Mr Romero was found not guilty of six charges, and three charges were withdrawn. Mr Romero was convicted and globally fined $2,000, which was referred to the State Penalties Enforcement Registry, and ordered to pay costs fixed at $10,000, to be paid to the complainant within 28 days, in default, levy in distress.
[3] The appellant in his Notice of Appeal appealed on the following grounds:-
"1. The magistrate ought to have adjourned the hearing in circumstances where the appellant was entitled to have the matter adjourned for reasons of ill health.
[4] On 28 April 2014 the appellant purported to file an amended Notice of Appeal incorporating the three grounds of appeal above, expanding ground 2 in significant detail, and seeking to add the following additional grounds:
4. "[T]he learned magistrate erred in law by hearing this matter when no jurisdiction existed to do so as s.287 of the Body Corporate and Community Management Act 1997 (Qld) had not been complied with." (Particulars deleted)
[5] As Margaret Wilson AJA stated in Tierney v Commissioner of Police [2011] QCA 327:
"An appeal from a Magistrates Court to the District Court pursuant to s.222 of the Justices Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court's power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error." (Citations deleted).[3]
[6] It is convenient to address at the outset the argument on behalf of the appellant in respect of BCCMA s.287. The appellant argues that the criminal proceedings against the appellant could not proceed before the learned magistrate unless the adjudicator's order (which the appellant is alleged to have contravened) had previously been filed with the registry of the Magistrates Court.[4]
[7] This submission can be dealt with in short compass. Chapter 6 of BCCMA contains detailed provisions for the resolution of disputes relating to the owner or occupier of a lot in a community titles scheme and/or the body corporate.[5]
[8] The legislation provides (in an appropriate case) for the appointment of an adjudicator,[6] who must investigate and decide whether it is appropriate to make an order. The adjudicator has extensive powers to make orders,[7] and the process for enforcement of the adjudicator's orders commences with the registration of the order with a Magistrates Court pursuant to BCCMA s.286 (in respect of orders for payment of amounts) or BCCMA s.287 (in respect of the enforcement of orders other than an order for the payment of an amount).
[9] It is clear on the wording of the legislation that compliance with BCCMA s.287 is not a precondition for proceedings to be commenced pursuant to BCCMA s.288 (the offence proceedings) for alleged failure to comply with an adjudicator's order.
[10] The appellant's submission that the magistrate had no jurisdiction to proceed pursuant to BCCMA s.288, either because of a failure to comply with BCCMA s.287, or because of a lack of jurisdiction arising from a lack of compliance with BCCMA s.287, has no merit.
[11] The trial in these proceedings commenced on 2 May 2012 before the learned magistrate at Beenleigh. Ms Blattman appeared on behalf of the respondent to prosecute the proceedings against the appellant. The learned magistrate granted leave to the appellant's daughter (who does not appear to have been identified by name) to assist him in the proceedings. After a short opening from Ms Blattman,[8] the prosecution then called witnesses, commencing with Robert Van Gaal.
[12] At the conclusion of Mr Van Gaal's evidence in chief, the learned magistrate said to the appellant:
"You can cross-examine this - if you want to ask Mr Van Gaal some questions now... now's your opportunity."[9]
[13] During the course of that cross examination the learned magistrate said to the appellant:
"You're giving this evidence. ... You'll have an opportunity at some later stage to give your evidence all right? You'll have an opportunity to say what you did and what... you saw... But... at this stage you just have to... ask this person... this witness a question."[10]
[14] Subsequently, during Mr Van Gaal's cross-examination the learned magistrate said to the appellant "We'll be here all year if you don't hurry up Mr Romero",[11] and then during the course of an exchange which followed between the appellant and the learned magistrate, the learned magistrate said:
"I know you're not a solicitor but it's very very simple. These allegations made against you, the body corporate will call witnesses... to prove those... So far we've heard from Mr Van Gaal, he's given his evidence... and he's tendered documents... to prove certain things that happened. ... Now if you've got something - a different version of events to what he's told the court here today and you say that what he's told the court here today is incorrect you put your version of events to him... and he can either confirm or deny what you put to him... but you've got to stick to the point."[12]
[15] Evidence was then called from witnesses John Bligh and Hunter Parsonson. During the course of the cross-examination of Mr Parsonson, the appellant said to the learned magistrate:
"Your Honour I can't continue anymore anyhow. I mean, I it's it's absolutely [indistinct] I fight against two solicitor (sic) here I waste my time.
... The question is I want to terminate this court right now because I can't - I can't cope with that. Your Honour, it's impossible because there's so many complications. So many complications and the complication is two things."[13]
[16] The appellant did, however, persist with his cross-examination of the witness Parsonson. The court broke for lunch, and when it resumed after the luncheon adjournment the appellant said:
"I'd like to terminate the court case completely on the count (sic) to which I've never been treated properly and I can't fight between two solicitor (sic). I just ring up my barrister, a friend of mine and he will take it to court. I can't - I can't carry on. Impossible - impossible to carry on. I mean you must understand ..."[14]
[17] The learned magistrate responded, "So what do you want to do? You want to adjourn it? Is that what you're asking?", to which the appellant replied, "Adjourn, yeah, you can adjourn the case if you want to or I want to terminate at this moment because I mean ...",[15] and at this stage an unidentified speaker (apparently the appellant's daughter) submitted to the learned magistrate that proceedings should be adjourned so that the appellant could have his barrister with him.[16]
"Look I'll - this is what I'm thinking. I'm thinking of (sic) we'll hear all the evidence and you can cross-examine your witnesses, Mr Romero. I will give you an - I'll adjourn it, and I'll give you an opportunity to engage counsel to provide written submissions but I'm not going to adjourn the evidence. People have been subpoenaed to come here today, Mr Romero. I mean, this has ... been on foot for sometime."[19]
[19] The appellant then sought to explain that although he could not afford a barrister, he would get his barrister, who the appellant stated was a friend of his, to assist him. During the course of this exchange the learned magistrate said, "You can cross-examine the witnesses, you can ask them questions, and then we'll adjourn it, and your barrister can then write some written submissions."[20]
[20] After a further exchange, the learned magistrate said:
"Well the witnesses are here. Okay. So your application for adjournment is refused. I am going to continue, and I will at least hear all the evidence. If you wish, I will give you the opportunity by adjourning the matter so you can have a barrister look at it and make written submissions."
[21] There was then an exchange in which the appellant said that he was "not happy", and that he was "in the age at which [he was] not even supposed to be here", to which the learned magistrate replied, "You knew you were 91 back in January didn't you?"[21] The learned magistrate then went on to re-state, "Your application for an adjournment is refused. All right. So we'll continue on."[22]
[22] The prosecutor, Ms Blattman, then sought to call a further witness, Sean Austin, at which stage the unidentified speaker (again apparently the appellant's daughter) stated, "He's just got out of hospital", and the appellant said, "I'm not well." The learned magistrate identified that the person speaking on behalf of the appellant was, in fact, the appellant's daughter, who upon further questioning of her by the learned magistrate, indicated that there was no medical certificate.[23]
[23] During the course of a further exchange the appellant said, "I'm not feel (sic) well,"[24] and then after a further exchange the appellant said, "I'm going because I've got to go. I've got to get out. That's all, I'm going", at which stage Ms Blattman indicated that if the appellant left, there would be an application to continue in his absence pursuant to the Justices Act.[25]
[24] During a further exchange with the appellant the learned magistrate said:
"Mr Romero, I'm not giving you your adjournment. As I said I will adjourn the matter at the end of the evidence to enable you to engage a barrister or solicitor to make ... written submissions on your behalf but I am not adjourning it now. These witnesses have been waiting here since presumably 8.30 or 9 o'clock this morning.
I'm not adjourning it at this stage. As I said, I will give you the opportunity of - at the end of today we'll adjourn so that you can engage a solicitor or barrister, whoever you want ...
... to make submissions on your behalf, but I'm telling you now ... I am not adjourning the matter now."[26]
[25] The learned magistrate continued in an exchange with the appellant and said to him, "You do what you need to do, and I'll do what I need to do, but I'm telling you ... I am not adjourning the matter."[27]
[26] The learned magistrate then said to the appellant, "Just have a seat, Mr Romero. Sit down please", to which the appellant responded, "I'm going",[28] and it appears from that point on that the matter proceeded in the absence of the appellant (although there was no formal application made to proceed in the appellant's absence, nor was any formal order made to that effect).
[27] Evidence was then called from witnesses Sean Austin and Owen Handley. Between those two witnesses giving evidence, the prosecutor Ms Blattman said to the learned magistrate, "Your Honour, I hate to be pedantic about the process, your Honour indicated that you'd adjourn the matter at the conclusion of the evidence to allow Mr Romero to make submissions."[29] The learned magistrate then repeated the courts concern about the lack of any need to adjourn proceedings given the delays experienced by the witnesses. In the appellant's absence, the learned magistrate proceeded to hear evidence from the witness Owen Handley.
[28] At the conclusion of the evidence, oral submissions were made by Ms Blattman on behalf of the prosecution. After those submissions were completed, the learned magistrate said to Ms Blattman:
"I probably don't need anything more. If I do I can get my clerk to give your solicitor a call. ...
But I think that should be sufficient. So at some stage, hopefully within the next week or so, I'll just get my clerk to contact your solicitor and obviously you don't have to appear and I'll just give something in writing and impose the penalty and make the order for costs."[30]
[29] Ms Blattman then said, "I might out of an abundance of caution ask my solicitors to notify Mr Romero that ...", to which the learned magistrate replied, "The court will notify him", and Ms Blattman replied, "Well, the court will notify him that that's what's happening. All right."[31] Ms Blattman went on to state, "So we've still got a week or something if he decided he wanted to put in some submissions", to which the learned magistrate replied, "Yes, that's right." [32]
[30] My examination of the Magistrates Court file has failed to identify any record, either that the appellant was advised of an opportunity to provide a written submission, or that the appellant was provided with a transcript of the evidence heard, in his presence and in his absence, on 2 May 2012, which would have been a fundamental requirement if a written submission was to be made by or on behalf of the appellant. Handwritten notes on a facsimile from Success Law (solicitors for the respondent) appear to indicate that only that firm (and not the appellant) was notified that the learned magistrate was to deliver a decision at 8.30 a.m. on 24 May 2012. It appears, therefore, that the appellant was not offered the most basic entitlement to have the opportunity to be present when the learned magistrate's decision was delivered, and to have the opportunity of being heard on the issues of penalty, and costs.
[31] During the course of the learned magistrate's decision delivered ex tempore on 24 May 2012, there was no reference to the appellant's attendance for only part of the proceedings, nor any reference to the issue of any submissions by or on behalf of the appellant. The learned magistrate found the appellant guilty in respect of 14 charges, not guilty in respect of six charges, and noted that three charges had been withdrawn. Without providing any opportunity for the appellant to be heard, the learned magistrate then proceeded to convict and fine the appellant $2,000, which was referred to the State Penalties Enforcement Registry, and ordered further that the appellant pay the complainant's costs set at $10,000 within 28 days "in default levy and distress".[33]
[32] The learned magistrate, although clearly aware that the appellant was elderly and appearing unrepresented (other than with the apparent "McKenzie Friend" assistance of his daughter), made no attempt prior to the commencement of proceedings, to explain the trial process. In my view, it was a basic and fundamental obligation of the learned magistrate in such circumstances to explain the trial procedure, including the nature and purpose of the opening by the prosecutor; the process of calling witnesses and the appellant's opportunity to cross-examine those witnesses; the obligation on the appellant, if intending to contradict the evidence of a witness, to put any such contradiction to the witness, in order to permit the witness to answer the suggestion; the opportunity to object to questions by the prosecutor; to object to the reception into evidence of potential exhibits; to make a "no case" submission if appropriate; then at the conclusion of the prosecution case to choose whether or not to give or call evidence; the process for opening, giving and/or calling evidence, and finally the opportunity of making submissions at the conclusion of the evidence in the trial, in respect of the charges, and in relation to penalty and costs, if found guilty of one or more of the charges.
[33] With appropriate adaptations to the situation of a summary trial, the "Unrepresented Defendant" section (section 6) of the Queensland Supreme and District Courts Bench Book is an entirely appropriate starting point.[34] In addition, Legal Aid Queensland has available on its website an informative and helpful guide titled "Have you been charged with an offence?"[35] and the appellant should have been referred to it.
[34] As outlined above, the learned magistrate did communicate, in a fractured and disjointed way, just some of the procedural aspects of the conduct of a trial for a person in the appellant's position, but not in a manner which was formalised, logical, comprehensive and informative. Critically, this was not done before the trial process commenced. It follows that the learned magistrate, I conclude, made no substantial attempt to ensure that the appellant was aware of and able to engage meaningfully in the criminal trial process.
[35] The appellant chose to absent himself part way through the prosecution case. The learned magistrate chose to proceed with the trial in the appellant's absence, having refused his application for an adjournment, but did so without any formal application by the prosecutor, Ms Blattman. The learned magistrate did not make any formal order that the trial proceed ex parte. Neither Ms Blattman nor the learned magistrate identified what, if any, legislative provision entitled the learned magistrate to proceed ex parte in these circumstances, where a defendant absented himself during a summary trial.
[36] Although the learned magistrate said to the appellant before he left the proceedings that the appellant would have the opportunity of making written submissions, the proceedings in fact concluded (after all prosecution witnesses gave evidence) with oral submissions being made by the prosecutor Ms Blattman, but with no steps taken by the court to make an order providing the appellant with an opportunity to make oral or written submissions, nor was a transcript ordered and supplied to the appellant so that he could peruse the evidence and the oral submissions made in his absence by Ms Blattman, and deliver meaningful submissions. It is apparent that the appellant was not advised as to when the learned magistrate intended to hand down reasons for judgment, was given no opportunity to make submissions on penalty and costs at or subsequent to that judgment, nor (it appears) were the reasons for judgment, and the sentence outcome forwarded to the appellant, despite the substantial fine and costs order imposed.
[37] Disturbingly, prior to the proceedings being adjourned after Ms Blattman's submissions, the learned magistrate stated:
"So at some stage, hopefully within the next week or so, I'll just get my clerk to contact your solicitors and obviously you have to appear and I'll just give something in writing and impose the penalty and make the order for costs".[36]
It is an inescapable inference that the learned magistrate had, at that stage, already reached a conclusion and did not intend to seek further submissions from the appellant on trial issues, penalty or costs.
[38] The obligation of natural justice, or procedural fairness, is the most basic obligation of any court or tribunal, but more particularly so for an unrepresented defendant appearing for trial in criminal proceedings.
[39] The issue then is whether, in these circumstances "the applicant had a fair trial."[37] As Jones J stated:
"The right of an accused person to receive a fair trial according to law, is a fundamental element of our criminal justice system. The right is manifested in rules of law and of practice designed to regulate the course of the trial: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292."
[40] As Brennan J (as he then was) stated in Dietrich:
"The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair. And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that at trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt."[38]
[41] The issue was succinctly put by Gaudron J in Dietrich in these terms:
"A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted."[39]
[42] Mason CJ and McHugh J noted in Dietrich that:
"There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before the trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice."[40]
[43] In this appeal, the learned magistrate made no attempt prior to the commencement of the trial to provide the appellant with any explanation as to trial procedure, and accordingly, in contrast to the decision in Tompkins v Honeyman [2009] QCA 217, it could not be said that the appellant was "given every opportunity to defend the charge".[41] In fact the appellant was given no realistic opportunity to adequately defend the charges against him.
[44] In order to properly undertake cross-examination, it was necessary for the appellant to have been advised, prior to the trial commencing, that he should take careful notes of the evidence of witnesses and be in a position to challenge them in respect of that evidence, and in particular to put any evidence that he intended to give or call which was to the contrary to that witness, to enable the witness to respond. The appellant was denied that opportunity.[42]
[45] The lack of trial fairness while the appellant was present was then compounded by the learned magistrate's refusal to grant an adjournment, or to have the matter stood down to enable the appellant to obtain a medical certificate in respect of the appellant's asserted medical conditions and the effect those conditions might have on his capacity to continue to act in his own defence.
[46] It is also clear that "procedural fairness requires that a party to court proceedings be afforded the opportunity to present a case".[43] Such an opportunity was not given to the appellant in these proceedings.
[47] The learned magistrate also fell into error in proceeding to hear the matter ex parte, without any formal application by the prosecution, nor any formal order identifying the jurisdiction (if any) which the learned magistrate had to proceed ex parte in a part-heard trial.
[48] The learned magistrate fell further into error in indicating to the appellant while he was present that he would have the opportunity of making written submissions, then (apparently) declining to provide an actual opportunity for those written submissions to be made, which at the least would have necessitated ordering a transcript of the trial, having that forwarded to the appellant, and the making of an order allowing a realistic timeframe for the provision of any such submissions.
[49] Consequently, the trial proceeded in a manner which was significantly flawed while the appellant was present. The trial proceeded with even more significant flaws after the appellant absented himself, with witnesses being called and giving evidence in his absence, but without formal orders. Submissions were made by the prosecution in the appellant's absence. There was a complete failure by the court to give the appellant the opportunity to give or call evidence in his defence, and/or to make submissions in his defence. The appellant was not even notified of the time and place at which the learned magistrate's decision was to be delivered, to at least provide him an opportunity of making submissions on the issues of penalty and costs (each of which was substantial). The appellant was not notified of the outcome of the proceedings. In short, the trial process miscarried from start to finish, both while the appellant was present, and in his absence.
[50] On any view of the proceedings in this case, the appellant was not afforded natural justice or procedural fairness. As a result, there was a clear miscarriage of justice.
[51] In the circumstances, it becomes unnecessary to address any of the other grounds of appeal. I should note though, in passing, that in respect of many of the charges, the learned magistrate failed to give any reasons, or any substantial reasons, another fundamental obligation of the judicial process.[44]
[52] Accordingly, I conclude that the appeal should be granted.
1. The orders of the learned magistrate made on 24 May 2012, namely that the appellant be convicted in respect of charges 1(a), (b), (d), (e), (f), (g), (h), (i), (k), (l), (m), and 2(a), (c), (f), be set aside.
3. The learned magistrate's order that the appellant "pay the complainant's costs set at $10,000 within 28 days, in default levy in distress" be set aside.
4. Pursuant to the Justices Act s.225(2), the proceedings be remitted to the Magistrates Court at Beenleigh to proceed, before a different magistrate, according to law.
[1] Notice of Appeal to District Court filed 8 January 2013.
[2] Amended Notice of Appeal to District Court filed 28 April 2014.
[3] Tierney v Commissioner of Police [2011] QCA 327 per Margaret Wilson AJA, para 26.
[37] Tompkins v Honeyman [2009] QCA 217 per Jones J, para 26.
[38] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 325 (per Brennan J).
[39] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 365.
[40] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 300.
[41] Tompkins v Honeyman [2009] QCA 217 per Jones J at para 28.
[42] MBL v JP [2011] QCA 220 per Boddice J at paras 27-28.
[43] MBL v JP [2011] QCA 220 per Boddice J at para 22.
[44] Pettitt v Dunkley [1971] 1 NSWLR 376.
Romero
Body Corporate for White Lanterns Community Titles Scheme [2014] QDC 128
(1992) 177 CLR 292