Sauerwald v Brennan [2006] NTSC 81

PARTIES: KEITH RAYMOND SAUERWALD

v

MICHAEL DAVID BRENNAN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 92 of 2005 (20508846)

DELIVERED: 30 October 2006

HEARING DATES: 8 May 2006

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

Appeal against conviction – apprehended bias – appeal against sentence – bond – manifestly excessive

Justices Act s 163
Summary Offences Act s 47(e)

Antoun v R (2006) 80 ALJR 497;
Liddy v R [2005] NTCCA 4;
Tatam v Barker (1998) 8 NTLR 56;
Webb & Hay v The Queen (1994) 181 CLR 41

 

REPRESENTATION:

Counsel:
Appellant: KR Sauerwald
Respondent: J Duguid

Solicitors:
Appellant: Litigant in person
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou0632
Number of pages: 14

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

Sauerwald v Brennan [2006] NTSC 81
No. JA 92 of 2005 (20508846)

BETWEEN:

SAUERWALD, Keith Raymond
Plaintiff

AND:

BRENNAN, Michael David
Defendant

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 30 October 2006)

Introduction

[1] The appellant appeals to the Supreme Court under s 163 of the Justices Act. He appeals against his conviction in the Court of Summary Jurisdiction on 8 December 2005 for the summary offence of unreasonably causing a substantial annoyance to other persons contrary to s 47(e) of the Summary Offences Act and the sentence imposed on him being a conviction and a bond to be of good behaviour for 5 years on his own security of $3000.

[2] The appellant was a self represented litigant. He told the court that he has become a well known Darwin identity. He received a lot of publicity when he applied for the position of hangman with the Government of Singapore for the execution of Nguyen Van Tran.

[3] The facts on which the appellant was convicted in the Court of Summary Jurisdiction on 8 December 2005 are that on 2 April 2005 in Darwin the appellant placed a handwritten note into the letter box for the residence situated at number 7 Drysdale Street, Parap. The residence was occupied by Karen Louise Sanders and Julie May Howes who had two dogs that barked a lot. The note stated:

As you have continuously ignored the rights of the surrounding residences in refusing to control your two mongrels and stop them barking and yapping, as the DCC [Darwin City Council] refuse to do anything about you and as the police also refuse to stop the problem, then it is up to the public to put a stop to it. The time is 2pm Saturday 2 April 2005. You have 48 hours to remove the mongrels from this area. Failure to do so will mean they will be given a dose of poison which is guaranteed to put a stop to them. Do they live or do they die? Up to you!

KRS

[4] The note caused Karen Louise Sanders and Julie May Howes distress and they were put to an unnecessary and stressful course of conduct to protect their two dogs from the perceived threat.

[5] The appellant did not deny that he was the author of the note nor did he deny that he placed the note in the letter box at 7 Drysdale Street, Parap. The appellant’s case in the Court of Summary Jurisdiction was that he was perfectly within his rights. He resorted to self-help because the Darwin City Council and the police would not attend to resolve his complaints.

Grounds of appeal

[6] The only grounds of appeal relied on by the appellant are those pleaded in the notice of appeal. They are as follows:

“Refusal of the said magistrate to step down from this case (3 reasons) given, his blatant lies regarding his knowledge of myself [the appellant], his structure of penalty based on his past behaviour, his current lies and his attitude towards me [the appellant] in wanting him off this case, and his refusal to do so.

“The magistrate openly lied when he stated that he did not know me, had never heard of me, had never had any dealings with me and did not recognise my name.”

The appellant’s argument in the appeal

[7] The appellant made the following submissions to the court. On 19 November 2003 the appellant had been dealt with by the presiding magistrate in another matter. On 3 October 2003 David John Simondson filed an apprehended violence complaint in the Court of Summary Jurisdiction. The complaint named the appellant as the defendant. The grounds of the complaint were that the appellant had written threatening letters to Mr Simondson in circumstances where the appellant had been complaining to Territory Housing about the noise that his neighbours were making in the block of flats in which he lived. The appellant wrote the letters to Mr Simmondson, who he believed to be second in command of Territory Housing, because he had become exasperated by what he considered to be gross inaction by Territory Housing in relation to his noisy neighbours.

[8] On 19 November 2003 the presiding magistrate placed the appellant on a good behaviour bond for 12 months on his own recognisance of $2000. Before being placed on the good behaviour bond the appellant asked the presiding magistrate if he could read a statement that he had prepared in the proceeding in the Court of Summary Jurisdiction. The presiding magistrate refused the appellant’s request. The appellant was not allowed to read his statement in the Court of Summary Jurisdiction. The presiding magistrate said that he did not want to hear the statement. He would not accept it. Instead the presiding magistrate adjourned the proceeding for 2 hours to enable the appellant to think about his position. After thinking about his position the appellant denied the complainant’s allegations but he consented to be of good behaviour for a period of 12 months. In the circumstances the presiding magistrate made no adverse findings against the appellant.

[9] I interpolate that the statement that the appellant wished to read in the Court of Summary Jurisdiction contained details of the complaints that he had against Territory Housing, Mr Simmondson and his noisy neighbours.

[10] When the appellant appeared before the presiding magistrate on 8 December 2005 he requested the presiding magistrate to step down and refrain from the hearing of the complaint charging the appellant with an offence against s 47(e) of the Summary Offences Act because the presiding magistrate’s dealings with the appellant on 19 November 2003 showed obvious bias against him. He told the presiding magistrate that in a past case the presiding magistrate had refused to allow him to read his statement which was important and relevant to his case. The appellant submitted to the presiding magistrate that his refusal to allow the appellant to read his statement in the Court of Summary Jurisdiction on 19 November 2003 showed bias against the appellant. In response to the appellant’s submission the presiding magistrate stated that he did not even know the appellant. He had no idea who the appellant was. He did not recollect ever seeing him before. The presiding magistrate said that it might disappoint the appellant but he had no knowledge of his name. He did not know what the appellant was talking about. He did not recall the matter. In those circumstances the presiding magistrate held that he could not objectively have a bias against the appellant. The presiding magistrate refused to disqualify himself from hearing the case against the appellant.

[11] The appellant told the court that he absolutely refused to believe that the presiding magistrate would not have seen, read or heard about him. He told the court that his name had been in the newspaper substantially of late, on the Current Affairs program, on the Channel 7 News, on talk back radio stations including Top FM, 2GB Sydney and 2SM Sydney with regard to the fact that he had applied for the position of hangman for the Government of Singapore. According to the appellant a person would have to be blind, deaf, dumb and totally ignorant not to ever watch television, not to ever listen to the radio, not to ever pick up a newspaper, not to ever see some story or see something about the appellant’s name in there. It was a big topic and everybody in Australia knew all about it. They were all ears about it. When the appellant went on national television and publicly applied for the position of hangman to deal with people like Nguyen Van Tran it became a huge story. The presiding magistrate’s bias was demonstrated by his refusal to acknowledge the fact that he did indeed know the appellant or had at the very least heard of him and the basis for the presiding magistrate’s decision refusing to disqualify himself must be wrong.

[12] However, when asked how he proposed to establish that the learned magistrate was in fact aware of what he asserted the appellant was unable to assist the court. The appellant told the court that he told the presiding magistrate that he had been on national television and that his name had been in every newspaper. However, the appellant’s assertions are not born out by the transcript of the proceedings in the Court of Summary Jurisdiction. He simply told the presiding magistrate the reasons why he requested that he stand aside. Further, the appellant did not go to the registry of the Court of Summary Jurisdiction to request that the registry produce the records of the previous occasion that he was before the presiding magistrate. Nor did he ask the prosecutor to assist him to make enquiries to confirm the earlier appearance of himself before the presiding magistrate. The appellant submitted that the presiding magistrate could have checked what had occurred on the previous occasion that the appellant had appeared before him. Instead he did not bother.

[13] The appellant conceded that he had no defence to the charge under s 47(e) of the Summary Offences Act. He did put the letter in the letter box of the residence at 7 Drysdale Street, Parap which was occupied by Karen Louise Sanders and Julie May Howes. He signed his initials on the document. He was not hiding the fact that he wrote the note. On the contrary the appellant said he was publicising the fact that it was he who was telling them that if they did not shut their mongrel dogs up then he would deal with them. He gave them 48 hours notice.

[14] Finally, the appellant stated that he never said that the presiding magistrate had demonstrated bias against him in the proceeding that is the subject of the appeal to the Supreme Court. He said that he had made it specifically clear that the learned magistrate had demonstrated bias against him in the 19 November 2003 proceeding by not permitting him to read his statement to the Court of Summary Jurisdiction. The appellant conceded that apart from the presiding magistrate failing to disqualify himself he had received a fair hearing of the charge against him under s 47(e) of the Summary Offences Act. The appellant’s case on appeal is that the presiding magistrate ought to have disqualified himself because there was a perception that he was biased against the appellant because of how the presiding magistrate had conducted the proceeding brought by Mr Simmondson for an apprehended violence order on 19 November 2003.

[15] As to the sentence that was imposed by the Court of Summary Jurisdiction, the appellate submitted in essence that the sentence was manifestly excessive. The learned magistrate had failed to give consideration that he had been severely provoked by the constant barking of the dogs and the sentence was utterly disproportionate to the objective seriousness of his offending. He had telephoned the residents of 7 Drysdale Street, Parap on a number of occasions about the problem that the dogs were causing and he telephoned the Darwin City Council dog squad on two occasions and he had asked them if they would come and do something about the problem but they refused. He did not harm the dogs. He did not throw a poison bate to the dogs.

The facts

[16] The facts are as follows. The appellant is over 65 years of age. He is a pensioner. He receives a pension of about $500 a fortnight. He lives alone in a flat in Parap. During 2003 the appellant became concerned about the noise that his neighbours were making in the block of flats in which he lived and about the suitability of some of the tenants to reside in the block of flats. As a result he wrote to Mr Simondson and other staff at Territory Housing complaining about the noise that his neighbours were making and the perceived lack of action with regard to overcoming the problem by Territory Housing. Mr Simondson became concerned about the language and content of the letters that the appellant wrote to him. He felt threatened by them.

[17] As a result of his concerns Mr Simondson filed an apprehended violence complaint in the Court of Summary Jurisdiction. The complaint was heard by the presiding magistrate on 19 November 2003. During the hearing the appellant asked to read out in court a statement that he had prepared. The presiding magistrate refused the appellant’s application. Instead he adjourned the hearing of the apprehended violence complaint filed by Mr Simondson for two hours so that the appellant could consider his position.

[18] It may be inferred that the reason for the presiding magistrate refusing the appellant leave to read out his prepared statement was that such a process was contrary to the legal principles governing the receipt of oral evidence by a court. The appellant could not make a self-serving statement which was likely to contain hearsay evidence.

[19] After the adjournment the appellant told the Court of Summary Jurisdiction that he denied any liability to Mr Simondson. Nonetheless he consented to being placed on a good behaviour bond. As a result of the appellant’s concession the presiding magistrate placed the appellant on a good behaviour bond for 12 months on the appellant’s own recognizance of $2000. In so doing the presiding magistrate made no adverse findings against the appellant. The proceeding was resolved in a very short period of time.

[20] On 2 April 2005 the appellant placed the note referred to par 3 above in the mail box at 7 Drysdale Street Parap. The residence at 7 Drysdale Street Parap was occupied by Karen Louise Sanders and Julie May Howes. The occupiers complained to the police. The police interviewed the appellant and he admitted that he had placed the note in the mail box. As a result a complaint was filed in the Court of Summary Jurisdiction on 24 May 2005. The complaint charged the appellant with unreasonably causing substantial annoyance to Julie Mariee Howes and Karen Louise Sanders contrary to s 47(e) Summary Offences Act.

[21] During October and November 2005 there were a number of stories in the media about the fact that the appellant had applied to be a hangman for the Government of Singapore and that he was prepared to be the hangman that executed Nguyen Van Tran.

[22] The complaint filed on 24 May 2005 was heard by the presiding magistrate in the Court of Summary Jurisdiction on 8 December 2005. The appellant asked that the presiding magistrate to disqualify himself for the reasons given in paragraph 10 above. The application was refused and the presiding magistrate heard the charge against the appellant. The application was refused on the basis that the presiding magistrate had no recollection whatsoever of the appellant.

[23] I accept that the presiding magistrate had no recollection of the appellant whatsoever. There is simply no reason to doubt the presiding magistrate’s statements in open court. Magistrates hear hundreds of cases each year and the appellant’s only other appearance before the presiding magistrate was for a short period of time more than two years before 8 December 2005. Magistrates simply cannot be expected to remember every appearance of every person who has been before them. It was not established that the presiding magistrate was aware of or saw or read any of the media coverage that was given to the appellant or even that had he seen the news stories about the appellant he must have connected them with the person who appeared before him for a short period of time on 19 November 2003. Extremely few people would be across all news stories in the media at all times no matter how big or important others may perceive the news stories to be.

Bias

[24] The test for bias is time honoured. It is whether, considered objectively, a fair minded intelligent lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Webb & Hay v The Queen (1994) 181 CLR 41; Tatam v Barker (1998) 8 NTLR 56 per Mildren J at 67 – 68.

[25] No apprehension of bias arises in this case. The presiding magistrate had no memory of the appellant. Nor would such an apprehension have arisen if the presiding magistrate had recognised the appellant, remembered his appearance before him on 19 November 2003 and had refused to disqualify himself. The learned magistrate made no adverse finding against the appellant on 19 November 2003. He disposed of the application for an apprehended violence order in a lawful and appropriate manner and he correctly applied the law in disallowing the appellant’s application to read out his prepared statement in court. The presiding magistrate’s refusal to let the appellant read out a prepared statement in court on 19 November 2003 did not present an appearance of prejudgment of the appellant’s case or of the appellant personally. The applicant consented to a bond to be of good behaviour being imposed on him on 19 November 2003.

[26] It is trite that the fact that an application is made for a judicial officer to disqualify his or her self from hearing a case does not mean that the judicial officer must disqualify his or her self. No complaint is made by the appellant as to the manner in which the presiding magistrate conducted the hearing on 8 December 2005. Parties do not have an entitlement to choose amongst the judicial officers who will conduct the trial: Antoun v R (2006) 80 ALJR 497 per Kirby J at [34].

[27] The appeal against conviction on the ground of apprehended bias should be dismissed.

Manifestly excessive

[28] As to the sentence, the appellant essentially complains that the sentence was manifestly excessive in all of the circumstances.

[29] In Liddy v R [2005] NTCCA 4 Riley J stated that:

The principles applicable to such an appeal are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.

[30] In my opinion the sentence imposed on the appellant was so excessive as to manifest error. Both the term of the bond and the amount of security were unnecessarily burdensome. The maximum penalty that may be imposed for an offence against s 47(e) of the Summary Offences Act is a fine of $2,000 or imprisonment for 6 months, or both. The objective seriousness of the offence did not require the term of the bond to be the maximum period of five years. Nor did the appellant’s prior criminal history or his lack of remorse require the term of the bond to be the maximum period of five years. There was no basis for the presiding magistrate reasoning that because the appellant had been convicted of mistreating an animal in 1997 his perception in April 2005 was one engendered by hostility towards animals in general and barking dogs in particular.

[31] Likewise the security required of the appellant was too high.

[32] While it is true that people must be deterred from resorting to self help of the kind in which the appellant engaged and it was important to recognise that the appellant’s concerns about noise had caused him to breach s 47(e) of the Summary Offences Act on a previous occasion in 2003, significant weight must also be given to the nature of the offence, the appellant’s frankness and co-operation with the police, his age, his previous compliance with the bond that was imposed on him and his limited means being a pension of $500 a fortnight.

Orders

[33] I make the following orders:

1. The appeal against conviction is dismissed.

2. The appellant’s conviction is confirmed.

3. The bond currently in place is quashed effectively as from today.

4. Within seven days from today the appellant is ordered to enter into a fresh bond to be of good behaviour for the term of the bond.

5. The bond is to take effect from its execution and is to expire on 8 December 2007.

6. The appellant is to give a fresh security of $1500.

7. The appellant is to appear before the Court of Summary Jurisdiction if called upon to do so at any time during the term of the bond.