Hainaut v Queensland Police Service [2019] QDC 223 (8 November 2019)
Hainaut v Queensland Police Service [2019] QDC 223 (8 November 2019)
Intro:
The appellant was convicted after a summary hearing in his absence of driving without a licence with the circumstance of aggravation that he did so whilst his driver's licence was suspended. He was then sentenced to a fine of $450, disqualified from driving for one month, and convictions were recorded.
The appellant now appeals his conviction and sentence.
Facts:
The appellant was charged that on 12 September 2018, he was driving without a licence with the circumstance of aggravation that his license was suspended under the State Penalties Enforcement Act 1999 (Qld). That offence carries a maximum penalty of 40 penalty units or one year imprisonment, and a mandatory driver licence disqualification of a minimum one month but not more than six months.
On the day of the hearing the appellant appeared in person, however, he refused to acknowledge his conventional surname and that he was that ‘defendant’ named in uppercase in the proceeding. He instead stated he knew a person with that “identity” but he was not that person as he was alive.The learned magistrate told the appellant that he could leave if he was not the person named as the defendant. The appellant responded that he required $5,000,000.00 compensation if he was to “accept that surname”.He maintained that the person named in the charge was a “dead entity” and inferentially he was not that person.
After further exchanges, the appellant apparently departed the courtroom, and the learned magistrate proceeded to deal with the matter in his absence.
The prosecution cased relied upon the evidence from Senior Constable Derek Hicks who intercepted the appellant on 12 September 2018, and conducted a licence check on him. He produced a certificate of the registrar of the State Penalties and Enforcement Registry purporting to show that the Registry had suspended the appellant’s licence at the relevant time. He testified that the notice to appear was served personally upon the appellant in purported compliance with s 56 of the Justices Act 1886 (Qld). The officer also identified the appellant who appeared in the Court earlier as the person charged.
The learned Magistrate gave oral reasons, convicted the appellant and sentenced him with a $450 fine, the minimum driver licence disqualification of one month, and convictions recorded.
The appellant now appeals his conviction and sentence.
Issues:
1.) Whether or not the magistrate erred by not affording the appellant a reasonable opportunity to be heard.
2.) Whether or not the court had power to proceed in his absence to conviction and sentence.
Ruling:
Yes.
Opportunity to be heard
In my respectful opinion, the appellant was clearly identifiable, was the proper defendant, and did appear when called, and therefore, the learned magistrate incorrectly concluded that the appellant failed to appear.
The appellant practices an unconventional usage of his name which distinguishes his given name from a family or surname, and he holds an apparently genuine belief that the use of upper case lettering is for a dead entity or corporation. He argues that he wanted to explain himself to the court, “as a living man, not a CORPORATION” but he was not afforded this opportunity, and instead told he could leave the court, and the hearing continued in his absence.
At each pre-trial mention of the present case on 5 November 2018, 17 December 2018, and 21 January 2019, when the trial was set for 18 April 2019, the presiding magistrate acknowledged the appellant as the defendant, and so endorsed the file with the acronym “DIP NRL” being a shorthand way of saying - defendant in person with no legal presentation.
On 5 November 2018, the court accepted the appellant's plea of not guilty to the charge. In his notice disputing the charge, the appellant described himself as “Jean-Baptiste Dominiq” in handwriting.
The common law recognises a fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. A reasonable opportunity to be heard “requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.
In Kioa v West,[13] Mason J said:
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”
In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege. This is all the more challenging when ignorance of the law and procedural matters are overlayed with unconventional beliefs. For reasons which remain unclear to me, the appellant has a deep-rooted but apparently genuine belief in historically proper usage of given names for living beings and attributing the use of upper case lettering for a dead entity or person (as on a tombstone) or a corporation. Conventionally, the courts' formalities rely upon a person’s full name emanating from birth records, and the use of upper case is merely a matter of standardised forms of court, and more broadly, mere expression in the wider community. In that light, the appellant’s assertions could be considered nonsense in conventional society, foreign to Australian law, and verging on the bizarre.
In any event, it is also a standard requirement for parties to announce their appearance at the start of every hearing to identify the proper parties and facilitate accurate transcription in proceedings. The procedure is common to all courts and prescribed by practice direction. For the Magistrates Court of Queensland, Practice Direction number 8 of 2006, prescribes that: “anyone appearing in a proceeding including a person who appears without legal representation will at the outset clearly state:
“(a) his or her surname and initials (spelling the surname, save where the spelling is obvious);
(b) the capacity, including the professional capacity, if any, in which he or she appears;
(c) the party or parties whom he or she represents, if that be the case;
(d) the name of the instructing solicitor, or the solicitor with whom, the person is connected (including the name of any legal firm) as the case may be;
(e) the name of any solicitor (including the name of any legal firm) for whom the legal representative is acting as town agent; and
(f) when the legal representative is a barrister and paragraph (d) does not apply, whether he or she has accepted a direct access brief.”
Perhaps the court followed the practice direction on the court sufficiently identifying the appellant even with his unusual proclivities, to be satisfied that he was the proper defendant at the earlier mentions on 5 November 2018, 17 December 2018, and 21 January 2019. However, the practice direction was not followed at the summary trial, which lead to the learned magistrate becoming understandably exasperated by the appellant’s attempts to explain his unconventional usage of his name.
Hearing in defendant’s absence
No.
The court had no power to proceed in his absence to conviction and sentence
It seems to me that the proceedings of 18 April 2019, were fundamentally flawed in two respects. Firstly, the defendant did appear when called and in the absence of any further call and non-appearance s 142 was not engaged. Secondly, even if the hearing was properly constituted (as the respondent properly concedes) there was no notice given to the appellant before imposing the licence disqualification in accordance with ss 142(2)(a) and (3).
As a result, the appellant was not afforded an opportunity to be heard, the magistrate had no power to hear and determine the matter in his absence, and I am bound to allow the appeal and set aside the conviction and sentencing orders.
Order
For these reasons, I allow the appeal, set aside the conviction, sentence, and orders made by the Magistrates Court at Mareeba on 18 April 2019, and decline to remit the matter for rehearing.
- Appeal allowed;
- The conviction, sentence, and orders made by the Magistrates Court at Mareeba on 18 April 2019, are set aside.
