Trevor Jenkins(Appellant) v Robert Whittington

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Grant CJ
• Judgment Date: 21 August 2017
• Neutral Citation: [2017] NTSC 65
• Docket Number: FILE NO: LCA 20 of 2017 (21617016)
• Date: 21 August 2017

[2017] NTSC 65

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Grant CJ

FILE NO: LCA 20 of 2017 (21617016)

Between:

Trevor Jenkins

Appellant

and

Robert Whittington

Respondent

REPRESENTATION:

Counsel:

Appellant: Self-represented

Respondent: S Geary

Asciak v Samuels (1976) 15 SASR 265 , Cottle v Cottle [1939] 2 All ER 535, Lindon v Commonwealth (No 2) (1996) 70 ALJR 541, Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2008] NSWLEC 318, S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358, Trustees of Christian Bros v Cardone (1995) 57 FCR 327, referred to.

Consolidated Press Ltd v McRae (1955) 93 CLR 325 , Coward v Stapleton (1953) 90 CLR 573, Fraser v The Queen [1984] NSWLR 212, Grassby v The Queen (1989) 168 CLR 1, Hinch v Attorney-General (Vic) (1987) 164 CLR 15, Keeley v Brooking (1979) 143 CLR 162, MacGroarty v Clauson (1989) 167 CLR 251, Magistrates' Court at Prahran v Murphy [1997] 2 VR 186, O'Brien v Northern Territory (2003) 173 FLR 455, R v Fletcher; Ex parte Kisch (1935) 52 CLR 248, R v Hume; Ex parteHawkins (1965) 55 DLR (2d) 453, R v Metal Trades Employers' Assn; Ex parte amalgamated Engineering Union (1951) 82 CLR 208, Re Bennison; Ex parteFisher SM (1995) 14 WAR 318, Re Dunn [1906] VLR 493, Sanderson v Lambe (2005) 193 FLR 318, Tippett v Murphy (1982) 62 FLR 183, Witham v Holloway (1995) 183 CLR 525 referred to.

Director of Public Prosecutions v Bakewell (2007) 21 NTLR 171 , Ebatarinja v Deland (1998) 194 CLR 444, Hellenic Republic v Tzatzimakis (2003) 127 FCR 130, Jones, Planter and Pengelly [1991] Crim LR 856, Lawrence v The King [1933] AC 699, R v Abrahams (1895) 21 VLR 343, R v Berry (1897) 104 LT Jo 110, R v Collie (2005) 91 SASR 339, R v Ferguson [2015] NTSC 35, R v Gee (2012) 113 SASR 372, R v Hayward [2001] QB 862, R v Jones (Anthony) [2003] 1 AC 1, R v King (2004) 155 ACTR 55, R v Lee Kun (1916) 1 KB 337, R v Sykes and Campi (No 2) [1969] VR 639, R v Vernell [1953] VLR 590, referred to.

Hanks v The Queen [2011] VSCA 7 , Mill v The Queen (1988) 166 CLR 59, Namala v Whittington [2016] NTSC 71, Richardson v The Queen (1974) 131 CLR 116, Truong v The Queen (2015) 35 NTLR 186, referred to.

Criminal Code Act (NT) s 8

Local Court Act (NT) s 45, s 46, s 47

Local Court (Criminal Procedure) Act (NT) s 62, s 62A, s 62AB

Court Security Act (NT) s 5

Sentencing Act (NT) s 117

PROCEDURE — INFERIOR COURTS — APPREHENSION OF BIAS

Whether trial judge erred in failing to recuse himself on basis of a reasonable apprehension of bias — relationship between trial judge and witness in the matter — no reasonable perception that the trial judge's decision was influenced by a relevant association or acquaintance — apprehension of bias not established — appeal dismissed.

PROCEDURE — INFERIOR COURTS — CONTEMPT, ATTACHMENT AND SEQUESTRATION

Whether trial judge erred in convicting the appellant of contempt — contempt in the face of the court — whether contempt can be dealt with by the judge before whom the contempt was allegedly committed — deliberately preventing the determination of criminal charges — urgent and imperative for the trial judge to act immediately — appellant charged with contempt before being remanded in custody — appellant had access to legal representation — appellant had appreciation of the conduct underlying the charge — appellant granted a sufficient adjournment to enable a defence to be prepared — case against the appellant proved beyond reasonable doubt — appellant given opportunity to address the court on penalty — penalty imposed not unreasonable or plainly unjust — appeal dismissed.

CRIMINAL LAW — OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE — OFFENCES AGAINST PEACE AND PUBLIC ORDER — JURISDICTION, PRACTICE AND PROCEDURE — JUDGMENT AND PUNISHMENT

Whether sentence imposed for counts 2, 3, 4, 5 and 6 was manifestly excessive — appellant's prior and recent history of relevant offending elevated the weight to be attached to considerations of deterrence and protection of the community — appellant has poor prospects for rehabilitation — no remorse or acknowledgement by the appellant of wrongdoing — total sentence did not exceed the total criminality — sentence imposed not unreasonable or plainly unjust — appeal dismissed.

1 By complaints taken on 8 April 2016 and 13 April 2016 the appellant was charged with the following counts:—

1

Behaving in a disorderly manner in a public place, namely the Supreme Court at Darwin, contrary to s 47(a) of the SummaryOffences Act (NT). The maximum penalty for that offence was $2,000 or imprisonment for six months, or both. 2. Failing to cease to loiter when required by member of the police force contrary to s 47A(2) of the Summary Offences Act. The maximum penalty for that offence was $2,000 or imprisonment for six months, or both. 3. Resisting a member of the police force in the execution of his duty contrary to s 158 of the Police Administration Act (NT). The maximum penalty for that offence was eight penalty units or imprisonment for six months, or both. 4. Behaving in a disorderly manner in a police station, namely Darwin police station, contrary to s 47(c) of the Summary Offences Act. The maximum penalty for that offence was $2,000 or imprisonment for six months, or both. 5. Failing to comply with a requirement of a security officer at the Supreme Court, namely failing to leave the court premises, contrary to s 13(2) of the Court Security Act (NT). The maximum penalty for that offence was 40 penalty units or imprisonment for 12 months. 6. Resisting a court security officer in the execution of his duty contrary to s 15 of the Court Security Act. The maximum penalty for that offence was 85 penalty units or imprisonment for 2 years.

2 Following a hearing conducted in the Local Court over the course of 26 and 27 April 2017 the appellant was found not guilty of count 1, but guilty of counts 2, 3, 4, 5 and 6.

3 During the course of that hearing the appellant comported himself in a manner which led the trial judge to conduct part of the hearing in the appellant's absence. In addition, the trial judge found the appellant guilty of contempt in the face of the court for that behaviour, and on 26 April 2017 sentenced him to imprisonment for two months for that contempt. Ultimately, one month of that sentence was served concurrently with a sentence of two weeks and two months subsequently restored by the Supreme Court.

4 The sentence restored by the Supreme Court arose out of proceedings that were conducted before Barr J in Jenkins v Todd. 1 In the opening two paragraphs of his reasons, Barr J made the following observations:

[1] This appeal hearing demonstrated the difficulties of doing justice in the case of a self-represented appellant who demands to be tolerated and understood, perhaps even indulged, as a homeless man without resources, but who has an extraordinary sense of entitlement, is obsessed with his perceived artistic and literary greatness, arrogant and unreasonable, extremely disrespectful to the Bench, untruthful in his statements from the Bar table, unreliable and selective in his submissions, and given to vituperative outbursts when questions were asked of him which exposed flaws in his arguments.

[2] The appellant believes that he is a misunderstood genius: ‘I'm a genius, you know, and so people can't handle that.’ On another occasion: ‘I'm not a legend for nothing … I'm one of the greatest artists and greatest thinkers in this Territory. I am. If you don't like it, well, shove it up your arse. That's all I can fuckin' say.’

5 As a result of the appellant's conduct in that matter, Barr J had directed the Registrar to apply by summons or originating motion for punishment of the appellant for an alleged contempt.

6 The application was heard and determined by Kelly J. On 20 April 2016, in Jenkins v Todd (No 2), 2 Kelly J concluded beyond reasonable doubt that by persistently interrupting and talking over the presiding judge in the manner set out in the particulars, the appellant was guilty of contempt in the face of the court. On 11 May 2016, Kelly J convicted the appellant and sentenced him to imprisonment for three months commencing on 7 May 2016, to be suspended after two weeks on certain conditions.

7 Justice Kelly was subsequently called upon to consider whether the suspended sentence she had imposed for the contempt should be restored in whole or in part on account of a breach by the appellant of the conditions of the order suspending sentence. 3 The breach of condition was constituted by subsequent misbehaviour in different proceedings before the Local Court by the appellant continually interrupting the evidence of a Crown witness and failing to comply with numerous directions by the trial judge that he cease doing so. In the event, on 9 May 2017 Kelly J wholly restored the sentence held in suspense.

8 As already observed, that restored sentence was to be served concurrently as to one month and cumulatively as to six weeks with the two months that had been imposed by the Local Court for the contempt committed on 26 April 2017. Accordingly, the term imposed by the Local Court ran to 25 June 2017, and the sentence restored by the Supreme Court ran to 8 August 2017.

9 On 15 May 2017, the appellant sent a Notice of Appeal in the present matter by email to the Supreme Court Registry. That notice was in accordance with Form 63 and was lodged before the Local Court had sentenced the appellant for the offences pleaded in counts 2, 3, 4, 5 and 6. The appeal was purportedly bought pursuant to ss 171 and 172 of

the Local Court (Criminal Procedure) Act (NT). Section 172 requires relevantly that the notice of appeal shall state the nature and grounds of the appeal...