On the 23rd of May 2013. At a time where I had been severely weakened by constant harassment by estate agents, months in refuges and several moves of my furniture I scrawled a bare note in quaking hands to the Judicial Commission trying to get someone to see my plight. I know they can see it. What I try to do is to get them to act. I made a formal complaint against Magistrate D. Day of Wyong Local Court. The content of the letter shows how ill I was and indicates the reason we need advocates we can trust when we are vulnerable. That those advocates have come to abuse their positions when our own is so difficult to assert should be no surprise. The letter had to be hand written and had (for anyone not fully engaged in paperwork) considerable conditions which had to be met to have it read. It included a very bad scan of the medical files. That fact alone will make the reply interesting.
On the 18th of March at Wyong Local Court Magistrate D. Day refused to extensive medical and psychological evidence into consideration when dealing with a man who was seriously handicapped despite the evidence being in the court’s possession.
Thus he turned an assault of a handicapped man by several people into a situation where a healthy man assaulted a woman for the purposes of the public record
The reply arrived in the morning mail on Monday 18th November along with the adjournment date for the appeal and is interesting for the way it totally ignores the actual conduct of the case and like Mr Day attempts to rewrite history.
Dear Mr. Solomons,
The Commission has completed its investigation of your complaint
against his Honour Magistrate Day arising from a hearing at Wyong
Local Court on 18 March, 2013.
The Commission must deal with complaints according to its
legislation. This means it has to determine whether the judicial officer
has behaved i n some way which may amount to judicial misconduct.
To examine your complaint the Commission has eai-e|uUy(shrugs, dunno) reviewed the
sound recording of the proceedings, considered your submission and
the material attached to your complaint.
The Commission has noted that you were self-represented at the
hearing and that no issues concerning Legal Aid lawyers or with police
statements were raised by you during the hearing. The Commission
has also noted that no evidence of your medical or psychiatric
condition was given by the prosecution or raised in cross-examination
by you, nor did you give evidence.
At the conclusion of the evidence and submissions, his Honour
carefully summarised the evidence and delivered his judgement, finding
that the defence of self-defence was not made out and found the
offence against you established. The sentence he imposed was made
in the exercise of his discretion as a judicial officer and does not raise
questions of judicial misconduct under the Judicial Officer’s /Act.
The Commission’s legislation requires it to dismiss a complaint or part
of a complaint that relates to the exercise of a judicial or other
function that is or was subject to adequate appeal rights. You had
available to you an appeal to the District Court against both the
conviction and sentence, which you exercised. The Commission is of
the view that in those circumstances an adequate right of appeal
Having regard to these findings, the Commission is required by the
Judicial Officers Act to dismiss your complaint under sections 20(1)(f)
My own reply sits on the desk behind me. Despite the illness that almost makes me housebound and steals most of my energy it is some what more wordy. My disgust and anguish are clearer than I would wish but that is what it is.
Attention E.J. Schmatt
Dear Mr/Ms Schmatt,
I find your letter disquieting and disturbing. It shows a lack of evidential discretion
and an inability to access actual, real-life situational conditions occurring within court
rooms you represent.
According to your letter I was self-represented. I was not self-represented. My lawyer,
one David Spencer, had refused my attempts to get the evidence of physical
limitations and mental conditions in the court. He refused to subpoena evidence I had
asked to be available and refused to serve or even discuss an existing subpoena. He
lied to me about research he claimed to have attempted and in another hearing could
not even be bothered calling me to notify me he was not coming. He told me this was
the way he had decided to act just days before the hearing. I was left with no choice
but to remove him right before the hearing. As he was acting under Legal Aid contract
and they were immediately notified it was expected that Legal Aid would supply
some other person. I had every right to expect to be protected. Not just represented
but as a fragile and very ill person I expected to be protected from ill-will and bad
behaviour. David Spencer went before the magistrate in the pre-hearing time despite
being asked by me not to turn up at all. I do not know what he said but apparently he
lied to the court and told them I wished to represent myself.
According to some legal information I found online and which I understand is
reflected in actual paper and ink books Fair and proper trial; inherent jurisdiction to
prevent an abuse of process, including by staying a trial which would be unfair. Mr
Day denied me my right to a fair trial!
It may be that the pre-hearing chaos made the case into what it became but even if
that is so Mr Day should not have continued and I should not have been forced to
defend myself before the misconduct of this court and the problems of representation
throughout the case have been dealt with.
I can find reference to Dietrich versus The Queen which is a well known
constitutional example of the right to a fair trial. I did not agree to face a court alone. I
was entitled to representation. I asked for it and I was a seriously ill and vulnerable
person which Mr Dietrich was not!
File No; C/13/34. 12 November 2013
The hearing continued because I had been informed some time before that if it didn’t I
would be charged. I was very ill that morning as I am most mornings and the evidence
you claim was not before the court had been placed before the court earlier as a part
of my pre-trial package and had been sighted by Mr Day in the earlier Section 32
hearing. I had asked that all that evidence be before the court and my lawyer refused. I
fired that lawyer as I am supposed to and the court went ahead without me having
representation. I did not give permission. All proof I claim to have supplied is on
record with extensive notes and time stamps in machines across the world so your
denials are not worthy of the body you represent and further serve to aid my deep
distrust of the system and its ability to Police itself or to meet tests of the integrity it
holds so dear to its reputation.
The fact that the court continued into that hearing was an act of duress, a denial of
due process and UNFAIR. Under some international law the fact that it continued and
a seriously ill and crippled man was refused seating while being forced to face healthy
accusers means it meets criteria for physical abuse. While standing for several hours,
in the grip of mental illness and very severe heart disease and physical disability I was
made to undergo a hearing without representation. That is abuse. The only worse
abuse could be if I was bleeding out with my guts hanging from my chest or strapped
to an obvious water-board. The pain and distress were the same. The evidence has not
disappeared mate. My conditions are not invisible no matter how much you wish they
The second argument against the behaviour of the court is that known as “quality of
arms.” Mr Day was in a position to see that the person before him was disabled and
had severe mental illness. He was not given a brain block to remove information he
had held in his hands at the Section 32 hearing and is directly responsible for ongoing
abuse. He knew the evidence existed. You may wish to protect him but perhaps you
need to accept that the correct course was not followed. I was not given a fair trial.
My body and mind are placed under stress and in pain in ways that are not recognised
as appropriate with full knowledge of that magistrate. If the papers disappeared for
that day they had not disappeared by the earlier hearing and I cannot see how he can
consider himself free of responsibility for finding where they went and why they
You note in your letter that no evidence was given by me and no evidence of medical
conditions placed before the court. I was standing for several hours struggling with all
of those conditions and was absolutely exhausted when the opportunity came to have
my papers before the court and my evidence heard. My evidence was not in court.
The lawyers had not served the subpoenas I had asked them to serve. My condition
was one of an exhausted and ill man on medications that did not allow him to place
trust in his mental acuity. I was not allowed to place my verbal defence unless I
agreed to face cross-questioning. I was too ill. I could barely see. I was thus not
allowed to have my other evidence read into the court record. Mr Day AGAIN!!!! I
did not get a fair trial!
The lawyer David Spencer and earlier lawyers had been charged with obtaining
evidence but no one ever got the evidence, served the subpoenas or even told me that
it was unavailable. Emails were sent to David Spencer and are in my possession.
Phone calls were made and even complaints were made to the NSW Ombudsman
about the fact that Legal Aid had refused to secure evidence requested until it was too
late and that Legal Aid failed in its duty of oversight. I was forced to attend court with
no evidence and no lawyer and in ill health and you cannot make those facts disappear
just because you cannot find the correct bit of paper! The fact that you have no
knowledge of extensive complaints only further hardens my lack of trust of whatever
methods your office uses to research complaints. You have nothing of the extensive
and desperate campaign I ran to try and stop the ongoing abuse of my rights by
various people. Many of those things are in my various computer systems although
according to the nature of the slippery beast you represent much of the evidence that
should be in institutional hands seems to have been deleted including my medical
files. Would that, by itself, not be crime? By refusing to recognise its importance and
act on it are you now a perpetrator in a larger and worse institutional act?
My charges against that court and its plume of lawyers and officers are extensive and
are in the process of being published. Mr Day had the files from the earlier Section 32
hearing. These made extensive references to both physical and mental illness and he
should have had the medical files I placed before the court and in the hands of various
lawyers. You now seem to feel that because these were expunged from the records
you are given they are safely ignored. If they were supposed to have been in the hands
of the prosecutor where were they? I made those files with the assistance of medical
specialists, community carers and psychologists some of whom were there when I
made them available to my lawyers and the court. Your job would seem to include
finding what happened to them as there is certainly misbehaviour involved in their
I would ask that you look again. I can prove that those files existed and that they made
dire prophecies about my health and welfare if my conditions were not recognised by
the court. If you cannot find them perhaps you should ask why and look for what part
of the case and by whose hands they ceased to be in the evidence stream. I am not less
ill and I am, and was, absolutely entitled to have those conditions recognised and
considered. Perhaps you could look into the case of the Federal Policeman Colin
Winchester where, I understand, something similar happened and the Judge put his
hand on the files about mental illness which then disappeared and are now in the
process of resurrection (as I understand that situation from a radio report)
I did not make a plea of self defence. I made a plea of not guilty. His honour did not
summarise the evidence. NONE of my evidence was present and through no fault of
The right of appeal you mention in your letter makes the conclusion that the hearing
was a fair trial and it was not. I made no plea apart from “not guilty”. I was physically
abused and my right to a fair trial trampled on and now I am placed in a situation
where all this is smoothed away and the misbehaviour of the court overlooked as
though it didn’t happen.
And despite every attempt to stop me from doing it I am not attending the hearing on 13th Feb with the intention of defending any charges. I am making complaints against the court and asking they drop a case where no attempt was ever made to provide a fair trial.