A man whose name was left off a daily law list has had his conviction for failing to appear in court overturned.
In Brisbane Magistrates Court on 5 November last year, the man was convicted of failing to surrender into custody and to appear in accordance with his undertaking to bail, contrary to Section 33(1) of the Bail Act 1980 (Qld), on 5 September last year.
In an ex-tempore decision published last week, Brisbane District Court Judge Ken Barlow KC explained the errors made by the magistrate, setting aside the man’s conviction and dismissing the charge.
The man gave evidence by an affidavit that on 5 November, he told the magistrate that his name had not appeared on the daily law list for 5 September.
He said the magistrate appeared to ask the court clerk to check the daily law list for 5 September, and the clerk appeared to reply that the man’s name was not on it.
None of this was recorded in the transcript nor did the magistrate say that he had had the matter checked and that the man’s name had not been on the 5 September law list.
The man appealed on the ground that it was not open to the magistrate to have convicted him, and had the relevant daily law list been entered into the court record, it would have shown there was reasonable cause for the non-appearance.
Judge Barlow KC said the magistrate ought to have made his inquiry openly and announced the result openly.
“It may not have made a difference, because his Honour appears to have accepted that the appellant’s name had not appeared on the daily law list on the relevant date,” he said.
“I say that because he did not appear to dispute or ask for proof of that fact from the appellant, who was self-represented before him, but went on to ask the appellant whether he had made any other inquiries, or he had received any information from the court or from the prosecution or from any other source to the effect that he did not have to appear on that day.
“I should mention that, on 1 September, the appellant’s matter was supposed to have been listed for mention, as had been directed on the previous occasion at which the appellant was present.”
Judge Barlow said His Honour gave “very short reasons” and did not give reasons for why he concluded that the appellant had not shown cause for not appearing.
“It is incumbent on a magistrate, even in a busy court, to give at least some reasons for a decision,” he said.
“While his Honour questioned the appellant about whether he had received any other information, his Honour did not, ultimately, give any reasons why he did not accept that the absence of the appellant’s name on the daily law list gave rise to a reasonable cause for not appearing.”
He said there was a “very good argument” that the absence of the appellant’s name on the law list gave rise to reasonable cause.
“The daily law list is published by the court and is to inform the public and parties of what matters are listed before the court on that day. It is a positive representation by the court as to what matters are listed,” he said.
“It would be similar, in my view, to a party calling the registry and asking if the party’s matter had been listed for mention and being told that it was not.
“The magistrate appears to have accepted that the appellant was misled by the absence of his name on the law list, but did not consider that to be a reasonable cause, for reasons that he did not state.
“In my view, it would be reasonable cause for a self-represented appellant, who may well have thought that, although it was to be listed for mention, for some reason – whether an error or some other positive step – it was no longer listed even though he had not been positively informed that would be the case.
“In that respect, therefore, it seems to me that his Honour erred, first, in not giving reasons for his decision that there was no reasonable cause and, secondly, in concluding that there was no reasonable cause for the appellant’s non-appearance.”
Judge Barlow KC said even if his appeal conclusions were wrong, there was no proper proceeding, on that day, on which the appellant could be convicted for an offence under s 33(1), because a requisite warrant was not produced to the court.
“It is only upon production to the court of the warrant that the magistrate could properly call on the defendant to show cause why he did not appear,” he said.
He said even though the appellant’s conviction was not recorded and he was not punished, the magistrate’s decision that he had committed the offence was an error.
Read the decision here.
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