A self-represented litigant who refused to acknowledge her presence to the Magistrates Court – and was taken into custody as a consequence – had the Supreme Court asking “what’s in a name?” this month.
In May this year, “HZX” was issued a notice to appear in Mackay Magistrates Court after she failed to comply with bail which had been granted two weeks earlier on charges of murder (on 29 December 2022), and failing to apply to have the birth of her child registered (on 12 December 2022).
The woman had been charged in the surname ”P”, and granted bail in her married surname “H”.
On June 24, HZX was present in the Mackay court but would only refer to herself by surname H. As a result, she was deemed to have failed to have appeared, her bail was forfeited and a warrant was issued for her arrest.
During the proceedings, HZX stated “I am exercising my right to self-determination”, and spelled her full name as her married surname, H, each time the Magistrate asked her if she was the person named on court documents as Ms P.
The Magistrate then stated: “I don’t accept that you’re Ms P. I’ll issue a warrant for Ms P’s arrest”. HZX was subsequently arrested.
In her reasons published on Tuesday, Chief Justice Bowskill determined that the Magistrate was not correct to find that HZX failed to appear.
Chief Justice Bowskill said there was no definition of “appear” in the Bail Act or in the Police Powers and Responsibilities Act and it should be given its ordinary meaning, having regard to the context in which it is used.
“To ‘appear’ does not mean simply be present at the relevant court building; it means to appear before a judicial officer sitting in court at a particular time and place, as required by the person’s undertaking,” she said.
“If the person is physically present before the court, at the appointed time and place, then they have “appeared” in accordance with their undertaking and have thereby surrendered into the custody of the court “for the time being”.
“To “appear” and “surrender into custody” does not require something more, for example, such as an acknowledgment by the person that they are the person named in the notice to appear, undertaking or bench charge sheet or the like.”
Chief Justice Bowskill said the evidence established that HZX did appear before the court on 24 June, and the fact that HZX did not acknowledge that she was Ms P, did not mean she did not appear.
She said it should be acknowledged that HZX’s conduct was “disruptive and time-wasting, particularly for a busy magistrate who has to deal with a high volume of cases and people”.
“Of course it would have been far simpler had HZX simply said yes, I am Ms P, although I prefer to be called by my married name, Ms H,” she said.
“She did not do that, instead electing to make statements about self-determination and international law which had no relevance to her appearance before a Magistrates Court in response to a notice to appear issued for a charge of breach of bail and for the purposes of the committal proceedings more broadly.
“Importantly, in this case it is apparent, from the factual information available, that the police prosecutor and the magistrate were able to be satisfied that HZX was indeed Ms P, despite her refusal to acknowledge that name. This was not a case in which there was any doubt about who HZX was.”
Chief Justice Bowskill said it followed then that the Magistrate’s decision to issue the warrant was affected by jurisdictional error: “the court’s power to order that a warrant issue for the arrest of a person is conditioned upon the failure of the person to appear. If that fact is not present, the court does not have power (jurisdiction) to make the order”.
Among her orders, she granted relief in the nature of a writ of certiorari in relation to the Magistrate’s decisions.
She also added an additional condition – which had been “sensibly suggested” by counsel for the Queensland Police Service – to the bail order.
“To the condition requiring that HZX appear as and when required, before the Mackay Magistrates Court or any higher court to which she is committed, I have added a condition that she must so appear and surrender into the custody of the court if either the names P or H are called,” she said.
One Response
Won’t be long before we’ll have to do VOI (verification of identity) under the Participation Rules (electronic conveyancing) just for the privilege of going to gaol.