Contempt in the face of the court

Acknowledgement: the following material has been prepared by Mr David Norris of the Crown Solicitor’s Office, New South Wales.

Jurisdiction to deal with contempt in the face of the court

[10-0000] Supreme Court

The power to punish contempt in the face of the court is part of the inherent jurisdiction of the Supreme Court: The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 241–243.

Proceedings for contempt in the face or hearing of the Supreme Court are assigned to the Division of the court (or the Court of Appeal, as the case may be) in which the contempt occurred: SCA ss 48(2)(i), 53(3)(a).

SCR Pt 55 sets out the procedure to be followed by the Supreme Court in prosecuting contempts of the court or of any other court.

[10-0010] District Court

The District Court has power to punish contempt of court committed in the face of the court or in the hearing of the court: DCA s 199.

[10-0020] Dust Diseases Tribunal

The Dust Diseases Tribunal has the same powers for punishing contempt of the Tribunal as are conferred on a judge of the Supreme Court for punishing contempt of a Division of the Supreme Court: s 26 of the Dust Diseases Tribunal Act 1989.

[10-0030] Local Court

The Local Court has the same powers as the District Court in respect of contempt of court committed in the face or hearing of the court: LCA s 24(1).

[10-0040] Meaning of contempt in the face of the court

There is a divergence of views (all obiter) as to the meaning of “contempt in the face of the Court … or in the hearing of the Court”.

The narrow view is that the jurisdiction is restricted to conduct seen or heard by the judge: see, for example, Fraser v R [1984] 3 NSWLR 212 per Kirby P and McHugh JA. The wider view is that it extends to conduct, without geographic boundaries, “… which is sufficiently proximate in time and space to the trial of proceedings then in progress or imminent so as to provide a present confrontation to the trial”: Court of Appeal, Registrar of the v Collins [1982] 1 NSWLR 682 at 684. Either view would appear to be open: European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 per Priestley JA at 463.

[10-0050] Alternative ways of dealing with contempt in the face of the court

Where the judge has formed the view that there has been a contempt in the face or hearing of the court, he or she should consider the following alternatives to a summary charge, bearing in mind the seriousness of the conduct and the degree of urgency involved, namely:

  • whether a warning or reprimand would be sufficient

  • whether, in cases of disruption of proceedings, the person should be excluded from the court

  • whether, if the conduct involves a legal practitioner, the conduct should be made the subject of a complaint under Pt 5.2 Legal Profession Uniform Law (NSW)

  • whether the matter should be referred to the DPP for consideration if a statutory offence has been committed; for example, perjury where the conduct consists of a constructive refusal to answer questions by an alleged inability to remember (see Commissioner for the Police Integrity Commission v Walker (No 2) [2006] NSWSC 696) or offences involving the threatening of judicial officers, witnesses or jurors: Crimes Act 1900 ss 320–326, or

  • whether, in the case of disrespectful behaviour in court, the matter should be referred to the Attorney General for prosecution of a statutory offence under SCA s 131, Land and Environment Court Act 1979 s 67A, DCA s 200A, LCA s 24A or Coroners Act 2009 s 103A,

  • whether the registrar should be directed to commence proceedings under SCR Pt 55 r 11(1) or whether the matter may be referred to the Supreme Court under DCA s 203 or LCA s 24(4), as applicable.

The summary jurisdiction of the court to punish for contempt is exceptional and should be exercised with restraint and only in a clear and serious case, in which it is necessary to act immediately: Keeley v Brooking (1979) 143 CLR 162 at 173.

An important consideration for a judge in determining whether to use the summary procedure is whether the subject conduct has involved the judge personally in some way: Attorney-General v Davis and Weldon (unrep, 23/7/80, NSWCA) at 11. Giving a direction under SCR Pt 55 r 11(1) or referring a matter to the Supreme Court under DCA s 203 or LCA s 24(4) or (5) may be preferable in such cases. It will also overcome any jurisdictional doubt as to whether the conduct was in the face or hearing of the court.

A judge may alternatively refer a possible contempt to the Attorney General for consideration of contempt proceedings.

Procedure for dealing with contempt in the face of the court

[10-0060] Summary hearing before trial judge

SCR Pt 55 Div 2 and s 199 of the DCA set out the procedure for dealing with a summary charge of contempt by the trial judge. The same procedures apply to the Dust Diseases Tribunal (see s 26 of the Dust Diseases Tribunal Act) and to the Local Court: LCA s 24. Suggested steps for dealing with such a matter are as follows.

[10-0070] Initial steps

1. 

Where appropriate, the contemnor should be warned of the risk that the conduct, if persisted in, may constitute contempt, and that the possible penalty may be a fine or imprisonment.

2. 

The contemnor should be provided an opportunity to apologise and, where possible, (particularly in relation to a refusal to be sworn or to give evidence) an opportunity to reflect and to obtain legal advice.

3. 

If the contemnor is not present, an oral order should be made directing that the contemnor be brought before the court or, if necessary, a warrant issued for the contemnor’s arrest: SCR Pt 55 r 2; DCA s 199(2).

4. 

If an alleged contempt arises during a jury trial, the jury should be sent out to avoid a risk of prejudice to the accused. In such circumstances, the media should be requested not to report that part of the proceedings conducted in the absence of the jury and warned that to do so may be a contempt.

[10-0080] The charge

5. 

The contemnor should be orally charged with contempt by the trial judge: SCR Pt 55 r 3; DCA s 199(3)(a). The charge or “gist of the accusation” should be distinctly stated: Coward v Stapleton (1953) 90 CLR 573 at 579, 580; Macgroarty v Clauson (1989) 167 CLR 251 at 255.[133]

[10-0090] Adjournment for defence to charge

6. 

The contemnor must be permitted an adequate opportunity (which may require an adjournment) to make a defence to the charge: SCR Pt 55 r 3; DCA s 199(3)(b). See Fraser v R [1984] 3 NSWLR 212 at 223. A short “cooling off” period may, in any case, permit the contempt to be purged.

7. 

When adjourning a matter, a contemnor should be informed that, if he or she is eligible, legal aid may be available from the Legal Aid Commission.

8. 

If the trial judge wishes to obtain the assistance of an amicus curiae for the conduct of the summary hearing, the Crown Solicitor should be contacted for this purpose. The Crown Solicitor will then invite the Attorney General to nominate the Crown Advocate or other counsel to seek leave to appear in this capacity. See, for example, In the Matter of Reece George Barnes [2016] NSWSC 133.

9. 

Pending disposal of the charge, the court may direct that the contemnor be kept in custody or that the contemnor be released subject to conditions such as the giving of security: SCR Pt 55 r 4; DCA s 199(4) and (5). See also s 90 of the Bail Act 2013.

[10-0100] Conduct of summary hearing

10. 

A trial judge may rely upon his or her own observations of the conduct, and upon hearsay evidence. The contemnor has no right of unrestricted cross-examination: Fraser v R, above, at 227. It is appropriate, however, that the judge inform the contemnor of such observations. It may also be possible to call witnesses to give evidence of their observations so that they may be cross-examined. This may be done by counsel appearing as amicus curiae.

11. 

In dealing with a summary charge of contempt, the person accused must be allowed a reasonable opportunity of being heard in his or her own defence, ie of placing before the court any explanation or relevant submission of fact or law: Coward v Stapleton, above, at 580.

12. 

In “requiring” a contemnor to make a defence to the charge, it should be made clear that the contemnor is not obliged to give evidence: Court of Appeal, Registrar of the v Maniam (No 1) (1991) 25 NSWLR 459.

13. 

At common law, a contemnor was entitled to make a defence by way of an unsworn statement. Quaere whether s 31 of the Criminal Procedure Act 1986 removed this right.

14. 

After hearing the contemnor, the court determines the matter of the charge and makes an order for the punishment or discharge of the contemnor: SCR Pt 55 r 3; DCA s 199(3)(d).

[10-0110] Appeal from summary conviction

An appeal from summary conviction for contempt in the Supreme Court lies to the Court of Appeal under SCA s 101(5). The appropriate respondent is the Queen: Fraser v R at 219.

As to an appeal from a summary conviction by the District Court or a Local Court, see DCA s 201 and LCA s 24(3)(c), respectively.

[10-0120] Supreme Court and Dust Diseases Tribunal — Direction to Registrar

A trial judge may, as an alternative to proceeding on the judge’s own motion, direct the registrar to take proceedings for criminal contempt: SCR Pt 55 r 11(1). The court may obtain advice from the Crown Solicitor before giving such a direction, see In the matter of the Compensation Court of NSW (unrep, 20/12/1985, NSWCA).

An order under SCR Pt 55 r 11(1) is executive and not judicial in character, and it has been held that there is no right for a contemnor to be heard on whether a direction should be given under r 11(1): Killen v Lane [1983] 1 NSWLR 171 at 179 (cf a referral by the District Court under DCA s 203 or by the Local Court under LCA s 24. In Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 the Court of Appeal held that there was an obligation to afford procedural fairness in such cases, but distinguished Killen, above, as to directions under SCR Pt 55 r 11(1)). However, it is suggested that the contemnor be given such an opportunity. There is no right to make a formal application for a direction, eg by notice of motion, and no appeal is available: Killen at 177, 179.

For examples of contempt in the face of the court dealt with by way of direction under r 11(1), see Prothonotary v Wilson [1999] NSWSC 1148 (and on appeal Wilson v The Prothonotary [2000] NSWCA 23); Principal Registrar of Supreme Court of NSW v Tran (2006) 166 A Crim R 393; Prothonotary v Hall [2008] NSWSC 994; Prothonotary of the Supreme Court of NSW v Coren [2017] NSWSC 754.

Under SCR Pt 55 r 6, proceedings may be commenced either by motion in the proceedings or by summons as an independent proceeding.

As to the scope of when a contempt is committed “in connection with proceedings in the Court” for the purposes of SCR Pt 55 r 6, see Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 564 and the cases there cited.

There appears to be no power to detain a contemnor in custody pending the commencement of proceedings by the registrar. Once proceedings have been commenced, the contemnor may be arrested and detained if “… it appears to the court that the contemnor is likely to abscond or withdraw … from the jurisdiction of the Court”: SCR Pt 55 r 10 and see Schnabel v Lui (2002) 56 NSWLR 119. As to the power to detain a contemnor following arrest, see ASIC v Michalik & Ors (No 2) (2004) 62 NSWLR 115, in which Palmer J also sets out the form of warrant used.

The registrar’s summons will not, of its own force, compel the attendance of the contemnor on hearing. An order may be made to compel the attendance of a contemnor on hearing: see Court of Appeal, Registrar v Ritter (1985) 34 NSWLR 641 at 651, 653; Scott v O’Riley [2007] NSWSC 560; Prothonotary of NSW v Russell Alan Jarvie [2016] NSWSC 1249. A warrant may be issued under s 97 of the CPA if the contemnor fails to attend in answer to the order: Mirembe Pty Ltd v Dangar [2009] NSWSC 94.

[10-0130] District Court and Local Court — Referral to the Supreme Court

As an alternative to proceeding under s 199 of the DCA, or where jurisdiction under that section is not available, is doubtful or is undesirable, an apprehended contempt may be referred to the Supreme Court for determination: DCA s 203; LCA s 24(4). Such proceedings are assigned to the Common Law Division of the Supreme Court: SCA s 53(4). Such a reference may be made where:

  • it is alleged to the court, or

  • it appears to the court on its own view,

that a person is guilty of contempt of court, whether committed in the face or hearing of the court or not.

The power to make a reference is executive and not judicial in nature. There is no right in a party or any other person to make a formal application for such a reference: cf SCR Pt 55 r 11(1); Killen v Lane, above, see [10-0110]). No appeal is available from a decision under s 203: Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309.

Before exercising its power of referral in either form, the referring court must afford procedural fairness to a proposed contemnor: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277; Prothonotary of the Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535. Failing to do so may render subsequent proceedings in the Supreme Court a nullity: Dangerfield at [49]; Chan at [64].

This is because (at least where the prospective contempt is in the face or hearing of the referring court) the referral power involves potential prejudice to the proposed contemnor, as the penalty which can be imposed by the Supreme Court is greater than that which the District Court or Local Court can impose if it decides to deal with the contempt itself: Dangerfield at [56]; Chan at [29].

Exercising the power of referral for an apparent contempt requires the court to make two decisions:

1. 

whether it appears to the court on its own view that the person is guilty of contempt of court, and

2. 

whether the court should refer the matter to the Supreme Court for determination: Dangerfield at [52].

Before referring an apparent contempt, the referring court should make findings of fact in relation to the conduct and determine that it is capable of amounting to contempt: Mohareb v Palmer [2017] NSWCA 281 per Basten JA, with whom Sackville AJA agreed, at [17] ff.

The suggested approach (see Dangerfield at [51]ff and Chan at [59]–[61]):

In addition to the initial steps referred to earlier (warnings, the opportunity to apologise and/or purge the contempt, and to obtain legal advice), see [10-0070].

1. 

identify, with sufficient particularity, the conduct in question;

2. 

invite submissions as to whether the court should form a view that it is capable of amounting to contempt;

3. 

if the court has power to deal with the contempt by way of a summary hearing (ie if it is in the face or hearing of the court) explain the two procedural options available and their consequences (including in relation to penalty);

4. 

invite submissions as to what course the court should adopt, ie:

  • deal with the matter itself by way of summary hearing (if jurisdiction is available), or

  • refer the matter to the Supreme Court, or

  • exercise a discretion to take no further action.

5. 

provide an adjournment, if necessary, to enable the putative contemnor to obtain advice and/or representation for the purpose of making submissions; and

6. 

consider whether to provide a party raising an allegation of contempt with the opportunity to respond to any submissions.

A reference is made by forwarding a report of the matter to the prothonotary. The report should identify the contemnor and the relevant conduct. It should specify whether the reference is made on the basis of an alleged contempt or whether the court has formed a view that it is capable of amounting to contempt.

There is no need to charge a contemnor for the purposes of a reference under s 203 or s 24(4): Court of Appeal, Registrar of the v Maniam (No 1), above.

In instances where the referring court comes to its own view that conduct is capable of amounting to contempt, the referral of the matter to the Supreme Court requires proceedings to be commenced by the prothonotary without any further direction by the Supreme Court: SCR Pt 55 r 11(3). Referrals of alleged contempts require consideration by the Supreme Court of exercising its power to direct a prosecution, under SCR Pt 55 r 11(1). SCR Pt 55 r 11(6) cannot be engaged in such a situation: Chan at [54].

[10-0140] Standing of other persons to commence proceedings

The right of any other person to commence proceedings for contempt is preserved: SCR Pt 55 r 11(2). A person with an interest in proceedings will have standing to bring proceedings for contempt: European Asian Bank AG v Wentworth, above, per Kirby P at 459. Indeed, “prima facie any person can bring proceedings for contempt in relation to proceedings in a State Court”: Public Prosecutions, Director of v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595.

Penalty

[10-0150] General

Contempt of court is a common law offence and there is no maximum penalty, subject to the Bill of Rights 1688: R v Smith (1991) 25 NSWLR 1 at 13 et seq; SCR Pt 55 r 13. However, where the District Court or a Local Court is exercising its jurisdiction under s 199 of the DCA, the maximum penalty which may be imposed is a fine of 20 penalty units or imprisonment for 28 days.

SCR Pt 55 is declaratory of the Supreme Court’s power of punishment and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314. The Crimes (Sentencing Procedure) Act 1999 applies in sentencing for contempt: Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527.

As to matters relevant to penalty, see Maniam (No 2), above, at 314–315; Wilson v The Prothonotary, above; Jando, above, and Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393.

Note the effect of s 47(1) of the Crimes (Sentencing Procedure) Act 1999, providing a sentence commences once it is imposed, particularly if sentencing a contemnor in his or her absence: Kus v Ronowska [2013] NSWCA 387.

[10-0160] Refusal to give evidence

Relevant authorities in relation to sentence for refusal to be sworn or to give evidence and in relation to reprisals against judges (in this case throwing a container of water at the presiding judge) are collected in Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490.

As for matters relevant to penalty in relation to contempt by refusal to be sworn or to give evidence, see Registrar of the Court of Appeal v Gilby (unrep, 20/8/91, NSWCA) at 26–29; Principal Registrar of Supreme Court of NSW v Tran (2006) 166 A Crim R 393 (which attaches a schedule of comparable sentences for contempts of that type); Prothonotary of the Supreme Court of NSW v Jalalabadi [2008] NSWSC 811; In the matter of Steven Smith (No 2) [2015] NSWSC 1141 and Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495.

Legislation

  • Bail Act 2013 s 90

  • Coroners Act 2009 s 103A

  • Crimes Act 1900 ss 320–326

  • Criminal Procedure Act 1986 s 31

  • DCA ss 199, 199(3)(d), 199(4), 199(5), 200A, 203

  • Dust Diseases Tribunal Act 1989 s 26

  • Land and Environment Court Act 1979 s 67A

  • Legal Profession Uniform Law (NSW) Pt 5.2

  • LCA ss 24(1), 24(3)(c), 24(4), 24A, 25(5)

  • SCA ss 48(2)(i), 53(3)(a), 53(4), 101(5), 131

Rules

  • SCR Pt 55 rr 2, 3, 4, 11(1), 11(3), 11(6), 13



[133] This case is cited as Macgroarty v Clauson in CLR and HCA reports, though the respondent was in fact the Attorney General. The ALR report cites the case as Macgroarty v Attorney-General (Qld).