An appeal judge has called for a greater appreciation of the intricacies of matters involving self-represented litigants.
Last month District Court Judge Byrne KC heard an appeal by North Queensland woman Marthea Hoon, who was convicted in Mackay Magistrates Court in February of one count of failing to give way when entering or driving on a roundabout.
Ms Hoon appealed the conviction, which was not recorded, on the ground the presiding magistrate did not adequately provide advice to her, as a self-represented litigant, to ensure a fair hearing.
Her arguments included that the magistrate failed to give her advice as to what she needed to do in cross-examination to comply with the Browne v Dunn rule, and as to her right to cross-examine witnesses as to credit.
At the Brisbane hearing last month, Queensland Police Service (QPS) conceded that there was an unfair trial and a new trial should be ordered, on the basis of problems with the presentation of evidence, and the failure to ensure Ms Hoon was “aware of salient matters at all stages of the hearing”.
“The hearing is yet another example of the difficulties faced by judicial officers in conducting hearings involving unrepresented litigants,” Judge Byrne said.
“The difficulties are exponentiated by the fact that this was heard in a busy Magistrates Court list.
“While I find there were errors justifying a re-hearing, I am not personally critical of the magistrate.”
Judge Byrne said non-compliance with the Browne and Dunn rule did not always render a trial unfair to a defendant.
“It is not so much the failure to put the appellant’s own case which has caused difficulties here, but the difficulty she found in explaining her case in her evidence,” he said.
“Although the appellant was not expressly told about the ability to cross-examine as to credit, in her own way she actually sought to do it in respect of (a witness).
“However, she was prevented in doing so. The failure to give the appellant assistance with that concept has not resulted in an unfair trial, although the refusal to allow her to pursue the line of questioning has.”
Judge Byrne said he accepted “that the responsibility to inform an unrepresented litigant of the matters of process of their duty and matters of process in a trial is important”.
“But what is required will differ depending on the nature of the hearing, and the presiding judicial officer must be alert to ensure that, as far as is reasonably possible, the unrepresented litigant remains aware of their rights and obligations throughout the hearing,” he said.
He said it would have been preferable in the circumstances of the hearing if the magistrate had reminded Ms Hoon of what she had told police when she was cross-examining witnesses.
“That would not have amounted to impermissible involvement in the evidence, and would have facilitated the assessment of the whole of the evidence,” he said.
He said the magistrate erred in refusing to allow footage from a body-worn camera to be played, because Ms Hoon was entitled to explore the existence of a prior inconsistent statement.
“The recording should have either been played in court, or his Honour should have adjourned to allow that to occur in presence of the witness but in his Honour’s absence,” he said.
“In that instance, when his Honour returned, the witness could have either accepted that he had made the prior inconsistent statement, or it could have been formally proven.
“The credit of the witness went to the veracity of his evidence that, in effect, he and the other motorists had done nothing wrong.
“Unfortunately, his Honour was given no assistance on this issue of procedure or admissibility by the police prosecutor.”
Judge Byrne said the magistrate also materially misunderstood an aspect of Ms Hoon’s evidence, which went directly to one of the issues in dispute, and again he was offered no help by the police prosecutor.
“Although it was not an account directly given by the appellant in her testimony, it had been admitted into evidence by the prosecution, it was potentially exculpatory and there needed to be explained why it did not raise a reasonable doubt,” he said.
He said notwithstanding the errors, the QPS case had strengths, based on the collision, the damage to the vehicles and the inferences that could be drawn from all circumstances.
“However, given the deficiencies in the manner in which the appellant conducted her defence, and the fact that a properly conducted defence may materially alter the state of the evidence, it is not possible to assess the evidence properly to determine guilt or otherwise on this appeal,” he said.
“The matter must be remitted to the Mackay Magistrates Court for re-hearing.”
As a further observation in the matter, Judge Byrne pointed to the QPS submission that the publicly available Supreme and District Courts Criminal Directions Benchbook, Chapter 5 outlined suggested instructions to be given to a self-represented defendant in a criminal trial in the superior courts.
“They provide a possible guide only, and must be adapted to the circumstances at hand,” he said.
“I agree that, although not directly applicable to summary hearings, those instructions could be modified to the circumstances of any particular summary hearing.
“What is required will differ from hearing to hearing, and the duty to assist an unrepresented litigant applies throughout the course of the often dynamic and changing circumstances of a hearing.
“The presiding judicial officer must remain alert to the need to ensure that the unrepresented defendant is not placed at an unfair disadvantage at any time during the trial, and circumstances may arise where the appropriate direction is not contained within that chapter.”
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