Emma Birkeland-Corro v Tudor-Stack

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Martin (BR) CJ
• Judgment Date: 20 May 2005
• Neutral Citation: [2005] NTSC 23
• Docket Number: FILE NO: JA 16 of 2003 (20207651)
• Date: 20 May 2005

[2005] NTSC 23

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Martin (BR) CJ

FILE NO: JA 16 of 2003 (20207651)

Between:

Emma Birkeland-Corro

Appellant

and

Tudor-Stack

Respondent

REPRESENTATION:

Counsel:

Appellant: I Rowbottom pro bono

Respondent: D Lewis

MacPherson v The Queen (1981) 147 CLR 512 (pp 524, 534, 547), followed.

R v White (2003) 7 VR 442 (p 451), applied.

Haymon v Deland (1992) 111 FLR 62, Salmon v Chute (1994) 94 NTR 1, considered.

Justices Act 1928 (NT), s4, s101, s105A, s106, s106A, s109, s121A, s131A-E and s 131B; Criminal Code (NT), s3, s188(2) and s298(1); Interpretation Act (NT), s38E.

CRIMINAL LAW

Appeal — Justices Appeal — appeal against conviction — committal proceeding — application for summary hearing — contempt of court — arrest of appellant — procedural fairness — miscarriage of justice — duty to unrepresented defendant — jurisdiction — appeal allowed.

REASONS FOR JUDGMENT

(Delivered 20 May 2005)

Introduction

1 This is an appeal against a conviction for aggravated assault contrary to si 88(2) of the Criminal Code recorded by a Magistrate on 6 December 2002. A sentence of three months imprisonment was imposed and suspended forthwith.

2 The appellant was charged on information with unlawful assault involving a circumstance of aggravation, namely, that the victim of the assault suffered bodily harm. In essence it was the prosecution case that on 14 May 2002 the appellant was one of a group of people who entered the Chamber of the Legislative Assembly while the Assembly was in session. The victim of the alleged assault was a security officer. As the victim was removing a male person from the Chamber, the appellant jumped onto the victim's back causing him to fall to the ground. A second security officer removed the appellant from the back of the victim.

3 According to the prosecution evidence, as a consequence of the assault the victim sustained strained muscles in his lower back and a swollen knee. He experienced pain for which he took Panadol over about three days. He was on light duties for a week.

Proceedings before the Magistrate

4 It is necessary to set out the sequence of events in some detail. On 1 November 2002 the matter was listed for what was described as a ‘committal hearing’ commencing 6 December 2002. At a conference on 29 November 2002 the appellant advised a different Magistrate that she was ready for the committal hearing to commence on 6 December 2002, but not to call witnesses that day. The learned Magistrate advised the appellant that she could apply to the Magistrate hearing the proceedings for an adjournment at the end of the prosecution case. His Worship informed the appellant that one reason why the case might be adjourned was that her friends could be witnesses and it might embarrass those persons in their defence to the charge of disturbing the Legislative Assembly if they were to give evidence in the appellant's proceedings.

5 At the outset of the hearing on 6 December 2002 the prosecutor advised the learned Magistrate that the matter was proceeding as a ‘committal’. The appellant commenced making a submission that the proceedings were tainted by problems of bias and denial of natural justice, but after a few words the Magistrate cut the appellant off and declined to hear the submission. The appellant made it plain that she wanted the hearing adjourned until she had presented her submission and the matters raised in her submission had been investigated. The prosecutor responded by stating that he was ready to proceed. He also indicated he did not expect to finish that day and the matter would almost certainly be part heard to a date in the future. The Magistrate then stated that he would deal with the matter as an ‘oral committal’.

6 The Magistrate invited the appellant to put a submission as to whether the matter should proceed on that day ‘by way of oral committal’. The appellant said that her written submissions explained why she was not prepared to take part in the hearing because she was being railroaded and denied natural justice. She spoke of new evidence which had been obtained over the last few days. Unfortunately, the Magistrate did not give the appellant a reasonable opportunity to explain her position. Nor was the appellant able to explain the nature of the ‘new evidence’. His Worship cut across the submission:

‘HIS WORSHIP: Madam, if you wish to absent yourself from this courtroom, and you refuse to take part in the proceedings, you can do that. I certainly shan't stop you, but I'll proceed in your absence by virtue of s 361 of the Criminal Code.

APPELLANT: Well, sir, if you're not prepared to hear my submission, then, yes, I will make myself absent.

HIS WORSHIP: That isn't what I said to you. I said to you that if you didn't wish to participate in the proceeding, you could leave.’

7 Prior to the Magistrate's interruption the appellant had not given any indication of an intention to absent herself from the hearing. Presumably the Magistrate's advice that the appellant could absent herself was based on the appellant's comment that her written submissions explained why she was not prepared to take part in the hearing. That advice is significant in view of events a few moments later.

8 The appellant repeated that she wanted to make a submission and started to speak of the rules of natural justice. The Magistrate again interrupted to refer back to the appearance before another Magistrate on 29 November 2002. The appellant attempted to explain that one of the reasons she needed the adjournment was that the ‘hearing of witnesses in this case is going to prejudice my trial for the Parliament invasion, which I think's in February.’ His Worship responded that the case before him had nothing to do with the Parliamentary invasion. It appears that his Worship may not have appreciated that the offence before him was alleged to have occurred during the ‘invasion’ of Parliament and that he misunderstood the problem that could arise if witnesses were required to give evidence before his Worship of events that were to be the subject of a later trial.

9 Without hearing more than a few words, and without any knowledge as to the essence of the appellant's submission, the Magistrate refused the application to adjourn the proceedings. In doing so, his Worship said:

‘There is no, in my contemplation, prospect of you suffering any prejudice by dealing with this matter now. In the circumstances, I propose to proceed with an oral committal. That will necessitate the charge being put to you. Now you said something about if the matter was to proceed, you didn't want to be heard or something.’

10 The appellant responded by saying she was not going to participate in the proceeding.

11 I pause in the sequence of events to make the following observations. The appellant was unrepresented. She had attempted to make a submission directed to her position that the proceedings should be adjourned. As events transpired, the appellant was referring to a written submission that was subsequently tendered before the Magistrate. That written submission comprised a general attack upon the police and the judicial system and contained allegations about the conduct of named persons. The submission, if it had been given, would inevitably have been rejected. But that is not to the point. The Magistrate did not permit the appellant to present sufficient of her submission to enable his Worship properly to make a reasoned judgment that the submission was irrelevant.

12 From the perspective of the appellant, the Magistrate had refused to hear even the essence of her submission. His Worship made no attempt to explain to the appellant why her submission was irrelevant nor to explain the nature of an ‘oral committal’. There was nothing in the material before his Worship or the exchanges between his Worship and the appellant which could reasonably have led to the view that the appellant fully understood the procedures and her rights with respect to the proceedings generally.

13 I return to the sequence of events. The appellant having responded to the Magistrate's question by saying that she was not going to participate in the proceedings, his Worship responded as follows:

‘Yes, very well. Well then, that's your choice.

Sergeant, the only provision I can conceive of which, in the circumstances, assists is s 361 of the Criminal Code.’

14 The mention of s 361 by the Magistrate introduced a short discussion between his Worship and the prosecutor about the possibility of arresting the appellant and taking her into custody. This exchange occurred notwithstanding that a few moments earlier the Magistrate had specifically advised the appellant that he ‘certainly’ would not stop her if she refused to take part in the proceedings and absented herself from the courtroom.

15 The Magistrate did not address any remarks to the appellant by way of explanation of the brief exchange that occurred between his Worship and the prosecutor about the possibility of taking the appellant into custody. No attempt was made to explain that the situation had changed from the earlier statement of the Magistrate that the appellant could decline to participate and leave the courtroom. No hint was given to the appellant that by indicating she was not prepared to participate in the proceedings, she might be taken into custody.

16 The brief exchange concluded with an offer by the Magistrate to leave the bench and a request by the prosecutor for a few minutes to seek the advice of more experienced counsel. After observing that the prosecutor might, in the absence of the Magistrate, be able to ‘get some common sense into the matter’, his Worship informed the appellant that ‘one way or another, young lady,...