Contempt, etc

[1-250] Introduction

This section focuses on contempt in the face of the court with a brief discussion of other forms of contempt and the offence of disrespectful behaviour. Justice Whealy in “Contempt: some contemporary thoughts” (2008) 8 TJR 441 described the objects of contempt law in the following terms “The law of contempt has at least three fundamental objects — providing a fair trial, ensuring compliance with the court’s orders and generally protecting the administration of justice”. Contemptuous conduct in criminal proceedings may include misbehaviour in the courtroom such as insulting the presiding judicial officer, conduct of an accused, interfering with the proceedings, the refusal by a witness to answer questions (contempt in the face of the court), or by the publication of material that has a real prospect of interfering with the administration of justice in a matter before the court (sub judice contempt or contempt by publication).

Contempt in the face of the court

Prosecutions for contempt in the face of the court generally arise where there is an allegation of misbehaviour in the courtroom. The legislative provisions governing the form of contempt refer to actions being “in the face of the court or in the hearing of the court”: Pt 55 r 2 Supreme Court Rules 1970, s 199(1) District Court Act 1973.

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”. In Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682, the Court of Appeal held that the phrase was not restricted to events which occurred in the courtroom and were personally witnessed by the judge. The court considered that the power to punish for contempt in the face of the court depended upon whether immediate intervention was necessary to end the disruption and to establish the court’s authority. This required, inter alia, “such proximity in time and space between the conduct and the trial of the proceedings that the conduct provides a present confrontation to the trial then in progress”, but this did not entail drawing geographic boundaries. In the circumstances of that case, the power extended to the footpath outside the court building.

However, in Fraser v The Queen (1984) 3 NSWLR 212, the majority (Kirby P and McHugh JA) considered that the addition of the reference to contempt “in the hearing of the court” indicated an intention that jurisdiction was restricted to conduct seen or heard by the judge. Kirby P confirmed these views in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 saying he considered that this view was consistent with the historical origins of the power which enabled a judge to deal with conduct seen, heard or otherwise sensed, and which, for that reason, did not require further evidence. His Honour emphasised the exceptional nature of the procedure and the “embarrassing concatenation of functions” presented to the judge in preferring a charge. Glass JA refrained from expressing a view. Priestley JA considered (at 463) that, pending authoritative decision, it was open for a judge to adopt either view. Mahoney JA dissented, expressing the view that the principle enunciated in Registrar, Court of Appeal v Collins should be followed.

In the circumstances it is suggested that the safer course is to apply the narrower test enunciated in Fraser v The Queen until the matter is authoritatively determined.

Examples of contempt in the face of the court include:

  • A witness, the victim in the prosecution of an accused on a charge of shooting with intent to murder, refusing to take the oath or make an affirmation: R v Razzak (2006) 166 A Crim R 132.

    Other cases involving contempt of court arising from a refusal to give evidence or a refusal to answer a subpoena requiring attendance to give evidence include: Smith v The Queen (1991) 25 NSWLR 1; Registrar of the Court of Appeal v Raad (unrep, 9/6/92, NSWCA); In the matter of Daniel James Ezold [2002] NSWSC 574; NSW Crime Commission v Field [2003] NSWSC 5; R v Taber and Styman; Re Shannon Styman [2005] NSWSC 1329 and Principal Registrar of the Supreme Court of NSW v Tran (2006) 166 A Crim R 393; Prothonotary of the Supreme Court of NSW v Jalalabadi [2008] NSWSC 811.

  • A plaintiff in civil proceedings throwing a bag containing yellow paint at the judge, and another at the judge’s associate and court reporter: Prothonotary v Wilson [1999] NSWSC 1148.

  • Refusing to leave court having been ordered to do so by the judge and refusing to obey the lawful direction: In the matter of Bauskis [2006] NSWSC 908. Bauskis was one of a number of people who appeared in court wearing t-shirts bearing the slogan “Trial by jury is democracy”. Many of the people were shouting offensive statements about corruption at the judge. The judge ordered that the people not remain in court whilst wearing the t-shirt but they refused to leave. Bauskis was placed in custody and given the opportunity to apologise and acknowledge his wrongdoing. He refused.

  • Insulting remarks made by the offender to the jury after delivery of a guilty verdict: Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389.

  • A heated exchange in the District Court between counsel and the trial judge, Toner v Attorney General for NSW (unrep, 19/11/91, NSWCA), where trial counsel was convicted of contempt. The conviction was overturned on appeal. The appellant conceded that, in shouting at the judge he had acted discourteously and incorrectly but had apologised. The court accepted that, by his conduct, the appellant was not seeking to insult the judge nor was there anything personal in counsel’s conduct directed at the judge or at his relations with the judge. The court, citing Izuora v The Queen [1953] AC 327, 336 (PC), confirmed that, of itself, “mere ‘acts of rudeness’, discourtesy or even extreme discourtesy” on the part of legal practitioners would not amount to contempt. The court concluded that the power to institute contempt proceedings to deal with cases of perceived discourtesy by a legal practitioner should be used sparingly: see John Fairfax and Sons Pty Limited v McRae (1955) 93 CLR 351 at 370. See discussion of Toner v Attorney General for New South Wales in the Honourable Justice Whealy, “Contempt: some contemporary thoughts” (2008) 8 TJR 441, 443–444.

Contempt by publication

Contempt by publication refers to two main areas of misconduct: sub judice contempt and scandalising the court.

Sub judice contempt is typically committed where there is a publication or comment through media organisations relating to proceedings currently before the court that has the potential to interfere with the proper running of the proceedings.

Prosecutions of this type of contempt are often brought by the Attorney General, after a referral by the trial judge, under powers arising from provisions in Sch 3 and s 316 Criminal Procedure Act 1986. Although the Attorney General may bring proceedings, this power does not prohibit the court from bringing an action under its own inherent power.

For examples of contempt by publication see:

  • Attorney General for NSW v Radio 2UE Sydney Pty Ltd (unrep, 11/03/98, NSWCA) — On the third day of a murder trial, John Laws made comment on air about the trial, discussing the evidence, insisting that the accused was guilty of murder and criticising the way in which the prosecution had run the case. The jury was discharged and John Laws and Radio 2UE were each charged with contempt. They were ordered to pay costs and substantial fines.

  • Hinch v Attorney General (Vic) (1987) 164 CLR 15 — The appellant detailed the prior convictions of an accused person. The appellant and Macquarie Broadcasting Holdings Ltd were convicted of contempt. The appellant was sentenced to a term of imprisonment. Mason CJ held that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending.

  • R v The Age Co Ltd [2006] VSC 479 — The Age published an article detailing the accused’s driving antecedents during committal proceedings for alleged dangerous driving offences. The respondent was convicted of contempt: see also R v The Age Company Ltd [2008] VSC 305.

  • Hearne v Street (2008) 235 CLR 125 — Civil proceedings were brought by local residents against Luna Park Sydney Pty Ltd, Multiplex Ltd and associated companies, alleging nuisance involving the Luna Park site. During the proceedings a managing director and chief executive officer of Luna Park Pty Ltd and development manager of Multiplex Developments Aust Pty Ltd provided the Daily Telegraph and the relevant Minister with copies of pleadings and affidavits filed in support of the plaintiff’s case. The High Court held that it was a contempt of court to breach an implied undertaking by parties in civil proceedings not to use documents produced during the discovery process for a purpose not connected with the proceedings.

Scandalising the court

Scandalising the court refers to conduct which denigrates judges or the court so as to undermine public confidence in the administration of justice (also known as “scandalising the court”). For examples: see The King v Dunbabin; Ex p Williams (1935) 53 CLR 434; Attorney-General Ex p; Re Goodwin [1969] 70 SR(NSW) 413; Gallagher v Durack (1983) 152 CLR 238.

Under modern conditions, the jurisdiction of the court to deal with contempt which consists of scandalising the court will be exercised only in exceptional cases because ordinarily the good sense of the community is a sufficient safeguard in curbing undue and improper criticisms of judges. An exceptional case might be where a letter is published alleging against a judge that his judgment in a case contained a malicious attack upon the character of one of the parties and that there was an ulterior motive behind such attack: Attorney-General Ex p; Re Goodwin.

Disobedience of court orders

Contempt may also arise where there is disobedience of court orders: see AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Witham v Holloway (1995) 183 CLR 525 and O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358.

[1-253] Jurisdiction

Jurisdiction of the 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 p Amalgamated Engineering Union (1951) 82 CLR 208 at 241–243.

Section 53(3)(a) Supreme Court Act 1970 (SCA) assigns to each Division of the Supreme Court proceedings for the punishment of contempt of the court, if the contempt consists of contempt in the face of, or in the hearing of, the court in that Division. This is subject to the Supreme Court Rules 1970 (SCR).

Part 55 Div 2 SCR sets out the procedure to be followed by the court where it is alleged, or appears to the court on its own view, that a person is guilty of contempt of court or any other court.

Rule 1 defines a “contemnor” as a person guilty or alleged to be guilty of contempt of “the Court”, or of any other court.

Rule 2 sets out the procedure by which a person alleged to be guilty of contempt is brought before the court.

Rule 3 concerns the procedure for informing the contemnor of the details of the charge and the procedure for the hearing.

Rule 4(1) permits the court to direct that the contemnor be held in custody or be released while a contempt charge is pending. If released, the court may make directions as to the terms of release which can include a requirement that the contemnor give security for a nominated amount.

Jurisdiction of the District Court

The power of the District Court to deal with proceedings for contempt in the face of, or hearing of the court arises from Pt 7 District Court Act 1973 (DCA). Sections 199–203 DCA detail the procedure to be followed by the court in contempt proceedings.

Section 199(1) DCA defines a “contemnor” as a person “guilty or alleged to be guilty of contempt of Court committed in the face of the court or in the hearing of the Court”. Section 199(2)–(5) DCA deal with the conduct of contempt proceedings and those provisions are, in substance, identical to Pt 55 Div 2 SCR.

Unlike the Supreme Court, where the penalty that can be imposed is not defined, s 199(7) DCA provides that the maximum penalty that can be imposed by the District Court is a fine not exceeding 20 penalty unit or 28 days imprisonment. Section 199(8) DCA permits the court to suspend a sentence with security.

Section 199(6) DCA permits the judge to issue a warrant for the arrest or detention of the contemnor.

Section 200 DCA concerns the payment and enforcement of fines imposed under s 199 DCA.

Section 201 DCA provides that a contemnor can appeal to the Supreme Court against a ruling, order, direction or decision of the District Court under s 199 DCA except where the contemnor was discharged.

Section 202 DCA enables the court, at any stage, to order a stay of the proceedings under s 199 or 200. Section 202(3) DCA states that except as provided by s 202 DCA an appeal under s 201 DCA does not operate as a stay.

Section 203 DCA provides for the referral of contempt matters, whether committed in the face or hearing of the court or not, to the Supreme Court for determination.

The power of the District Court to deal directly with contempt proceedings is limited to proceedings alleging contempt in the face of, or hearing of the court. Prosecutions for all other kinds of contempt should be referred to the Supreme Court under s 203(1) DCA or to the Attorney General for the exercise of power under the s 316 Criminal Procedure Act: see further District Court — Reference to the Supreme Court at [1-265].

[1-255] 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 of or in the hearing of the court, he or she should first consider the following alternatives to charging, bearing in mind the seriousness of the conduct and the degree of urgency involved, namely whether:

(a) 

a warning or reprimand would be sufficient,

(b) 

in cases of disruption of proceedings, a judge has the power to exclude the person from the court: Ex p Tubman; Re Lucas (1970) 72 SR (NSW) 555. This power extends in an appropriate case to the exclusion of the accused from the courtroom during the trial generally: R v Vernell [1953] ALR 1139; R v McHardie [1983] 2 NSWLR 733; R v Eastman (1997) 158 ALR 107. This power is very rarely used,

(c) 

if the conduct involves a legal practitioner, the conduct should be made the subject of a complaint under the Legal Profession Act 2004,

(d) 

the matter should be referred to the Director of Public Prosecutions 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: Keeley v Brooking (1979) 143 CLR 162; or offences involving the threatening of jurors — ss 320–326 Crimes Act 1900.

When a determination is made that the matter is to proceed by way of a charge of contempt, the judge must consider whether the matter is to be dealt with in the present court or transferred to another jurisdiction.

Where the judge is currently involved in criminal proceedings and a jury has been empanelled, the judge should consider the impact of the contempt proceedings on that jury. For a discussion about questions involving the effect of such conduct and referrals on the jury: see Adjournment for defence to charge at [1-290].

[1-260] Supreme Court — reference to the registrar or another Division

Where it is alleged, or it appears to a judge that a person is guilty of contempt of any type, the judge or magistrate may deal with the matter directly or direct the registrar to commence proceedings under Pt 55 Div 3 r 11(1) Supreme Court Rules 1970 (SCR). The power to refer the matter under this Rule has been described as “Ministerial” or Executive and not judicial in character: Killen v Lane [1983] 1 NSWLR 171; Capaan v Joss (No 2) (unrep, 6/6/94, NSWCA); Maddocks v Brown [2002] NSWSC 111. The alleged contemnor should be given an opportunity to show why the contempt should not be referred: Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 per Mahoney JA at 469 (cited by the High Court in Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 at [17]) and Hope AJA at 480. It was held in Prothonotary of the Supreme Court of NSW v Dangerfield [2015] NSWSC 1895 that the magistrate failed to afford procedural fairness to the defendant and the referral under Pt 55 r 11(3)(c) SCR was void for want of jurisdiction: at [19], see also [6], [11]. The contemnor is not obliged to exercise the right to be heard.

Examples of contempt in the face of the court dealt with pursuant to Pt 55 r 11(1) SCR include: Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; Principal Registrar of the Supreme Court of NSW v Drollet [2002] NSWSC 490; Prothonotary v Wilson [1999] NSWSC 1148; [1999] NSWSC 1114; [1999] NSWSC 1115 and, on appeal, Wilson v The Prothonotary [2000] NSWCA 23.

In the Supreme Court, if the trial judge is not completely satisfied that there has been a contempt, the judge should refer the matter to the Registrar of the Common Law Division requesting that the registrar obtain the advice of the Crown Solicitor on whether proceedings for contempt are warranted: Pt 55 r 11(6) SCR. Such reference would necessarily contain the relevant transcript or other documentation and the judge’s reasons for concluding that consideration of contempt proceedings was warranted.

[1-265] District Court — reference to the Supreme Court

Where it is alleged, or it appears to a judge that a person is guilty of contempt in the face of, or in the hearing of, the court, the judge may deal with the matter directly: s 199 District Court Act 1973 (DCA). If the contemptuous conduct is of another type, or where jurisdiction under that section is not available or is doubtful, the matter should be referred to the Supreme Court for determination: s 203 DCA. Such proceedings are assigned to the Common Law Division of the Supreme Court: ss 48(2)(i), 49, 53(1)(d), 54(4) Supreme Court Act 1970.

If the court has not formed its own view as to whether conduct amounts to contempt, the matter is dealt with under Pt 55 r 11(6) Supreme Court Rules 1970 (SCR) which enables the registrar to take advice from the Crown Solicitor as to whether proceedings should be commenced.

If the referring judge expresses a view that a contempt has been committed, no independent discretion is available to the Supreme Court and the registrar is required by Pt 55 r 11(3) SCR to commence proceedings.

The power to make a reference under s 203 DCA is executive and not judicial in nature, and there is no right in a party or any other person to make a formal application for such a reference. Compare: Pt 55 r 11(2) SCR; Killen v Lane [1983] 1 NSWLR 171.

A reference is made by forwarding a report to the prothonotary which should identify the contemnor and the circumstances of the conduct complained of and also specify whether the reference is made on the basis of an alleged contempt or whether the judge has formed a view that it constitutes contempt.

There is no need to charge a contemnor for the purposes of a reference under s 203 DCA: see Supreme Court — Reference to the registrar or another Division at [1-260] which concerns the procedure to be followed in the case of references to the Supreme Court under s 203 DCA.

[1-270] Why transfer — the court as prosecutor, judge and jury

Contempt proceedings may be dealt with by the judge before whom the contempt was committed, and it is recognised that there are instances of contempt which need to be dealt with swiftly: Killen v Lane [1983] 1 NSWLR 171.

An important consideration for the trial judge in determining whether he or she should personally deal with the contempt charge is whether the subject’s conduct has involved the judge in some way: Attorney General (NSW) v Davis and Weldon (unrep, 23/7/80, NSWCA) at 11; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 452.

It is preferable that, wherever possible, the court not appear to be both prosecutor and judge: European Asian Bank AG v Wentworth. There Kirby P said:

For when a judge deals summarily with an alleged contempt he may at once be a victim of the contempt, a witness to it, the prosecutor who decides that action is required and the judge who determines matters in dispute and imposes punishment. The combination, in the judge, of four such inimical functions is not only unusual. It is so exceptional that, though it may sometimes be required to deal peremptorily with an emergency situation, those occasions will be rare indeed. Especially will they be rare where, as in this State, a facility is provided in the Court of Appeal to relieve the judge of such an embarrassing concatenation of functions.

There is ample authority to the effect that 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. This is especially so of the power of a trial judge to deal summarily with contempt in the face of the court on the judge’s own motion. Stephen J in Keeley v Brooking (1979) 143 CLR 162 at 174 said this procedure:

… should rarely be resorted to except in those exceptional cases where the conduct is such that “it cannot wait to be punished” because it is “urgent and imperative to act immediately” to preserve the integrity of a “trial in progress or about to start”.

[1-275] Procedure for summary hearing before trial judge

Part 55 Div 2 Supreme Court Rules 1970 (SCR) and s 199 District Court Act 1973 (DCA) set out the procedure for dealing with a summary charge of contempt in the face of, or in the hearing of the court by the trial judge. Suggested steps for dealing with such a matter are set out below.

In the Supreme Court, proceedings for contempt in the face of, or in the hearing of, the court are commenced by either motion or summons. Proceedings for contempt should only be commenced by motion if the contemnor is a party to the principal proceedings: Abram v National Australia Bank Ltd (unrep, 1/5/97, NSWCA) at 3; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 25; Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 564. For prosecution of other kinds of contempt associated with proceedings, the proceedings are commenced in those proceedings by notice of motion. If not directly connected with proceedings, proceedings for punishment for contempt must be commenced by summons: Pt 55 r 6 SCR.

In the District Court proceedings for contempt in the face of, or in the hearing of, the court commence by oral order or warrant: s 199(2) DCA.

[1-280] 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: Pt 55 r 2 Supreme Court Rules 1970; s 199(2) District Court Act 1973.

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.

[1-285] The charge

5. 

The contemnor should be orally charged with contempt by the trial judge: Pt 55 r 3 Supreme Court Rules 1970; s 199(3)(a) District Court Act 1973. The charge should be distinctly stated. Where a common law contempt is involved, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided the contemnor is given a clear indication of the “gist of the accusation”. Where a specific statutory offence is involved, it must be identified in the charge, which must set out the elements of that which is alleged against the contemnor: Coward v Stapleton (1953) 90 CLR 573 at 579, 580; Macgroarty v Clauson (1989) 167 CLR 251 at 255–256.

[1-290] Adjournment for defence to charge

6. 

The contemnor must be permitted an opportunity to make a defence to the charge: Pt 55 r 3 Supreme Court Rules 1970 (SCR); s 199(3)(b) District Court Act 1973 (DCA). An adjournment may be required to enable a proper defence to be obtained.

7. 

In a jury trial, it may be appropriate to adjourn the hearing of the contempt charge until after the trial, to avoid any disruption to the trial and reduce the risk of prejudicial media coverage. In other cases, for example, the refusal of an important witness to give evidence after previous warnings, it may be appropriate to hear the contempt charge in the absence of the jury and adjourn proceedings on penalty until after the trial. Still other cases may require a virtually immediate summary hearing to prevent continued disruption to the proceedings, though such disruption may be avoided if the contemnor is taken into custody pending the hearing of the charge.

8. 

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

9. 

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 seek the approval of the Attorney General to brief counsel to appear amicus curiae: see In the Matter of Daniel James Ezold [2002] NSWSC 574; The Hon Mr Acting Justice Ireland v Renee Ann Russell [2001] NSWSC 468 for recent examples of this procedure.

10. 

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: Pt 55 r 4 SCR; s 199(4), (5) DCA: see also s 90 Bail Act 2013.

[1-295] Conduct of summary hearing

11. 

Proceedings on a charge of contempt are not to be regarded as the equivalent of a criminal trial: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at [43]. The power to punish for contempt “is an exercise of judicial power by the courts, to protect the due administration of justice”: Re Colina; Ex p Torney (1999) 200 CLR 386 at 429, Hayne J at [112] (emphasis in original) quoted in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 at [41].

12. 

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 The Queen (1984) 3 NSWLR 212 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: see, for example, R v Herring (unrep, 03/10/91, NSWSC); R v Rudd (unrep, 10/11/94, NSWSC). This may be done by counsel appearing as amicus curiae.

13. 

In dealing with a summary charge of contempt, the accused must be given a reasonable opportunity of putting forward a defence and “placing before the court any explanation or amplification of his evidence, and any submissions of fact or law”, which is considered bear upon the charge itself or upon the question of punishment: Coward v Stapleton (1953) 90 CLR 573 at 580.

14. 

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: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

15. 

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

16. 

The standard of proof for all charges of contempt is proof beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 at [42].

17. 

After hearing the contemnor, the court determines the matter of the charge and makes an order for the punishment or discharge of the contemnor: Pt 55 r 3 Supreme Court Rules 1970; s 199(3)(d) District Court Act 1973.

[1-300] Penalty

As a common law offence, there is no specific maximum penalty for contempt and punishment is said to be “at large” subject only to the restriction in the Bill of Rights 1688 (UK) upon cruel punishments: Wood v Galea (1997) 92 A Crim R 287 at 290. An offender dealt with in the District Court for contempt in the face of the court may receive a fine not exceeding 20 penalty units or imprisonment not exceeding 28 days: s 199(7) District Court Act 1973. The provisions of the Crimes (Sentencing Procedure) Act 1999 apply when sentencing an offender to imprisonment for contempt: Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at [38]–[45]. Any monetary penalty imposed by a court for contempt of court is a fine for the purposes of the Fines Act 1996: s 4(1)(a1). Under s 6 of that Act, the court gives consideration to an accused’s means to pay.

The Court of Appeal in Field v NSW Crime Commission [2009] NSWCA 144 at [21] identified several factors to be taken into account when punishing for a contempt in the context of a deliberate refusal to give evidence and take an oath or affirmation: see also Principal Registrar of the Supreme Court of NSW v Tran (2006) 166 A Crim R 393; R v Razzak (2006) 166 A Crim R 132; In the Matter of Steven Smith (No 2) [2015] NSWSC 1141 at [36]ff.

[1-305] Further reading

For further discussion on the law of contempt see:

  • The Honourable Justice Whealy, “Contempt: some contemporary thoughts” (2008) 8 TJR 441.

  • The New South Wales Law Reform Commission review on sub judice contempt in their report Contempt by Publication, Report 100, 2003.

  • The Civil Trials Bench Book Contempt at [9-0000]ff. The Sentencing Bench Book also discusses the offence of contempt in Common law contempt of court at [20-155]ff and collects various cases on the subject including refusals to attend on subpoena or give evidence.

Note

The assistance provided in the preparation of the original version of this chapter by Mr David Norris of the Crown Solicitor’s Office is gratefully acknowledged.

[1-320] The offence of disrespectful behaviour

The Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 commenced on 1 September 2016 (s 2, LW 24.8.2016). It provides that an accused person, defendant, party to, or person called to give evidence in proceedings before the court is guilty of an offence if they intentionally engage in behaviour in the court during the proceedings and that behaviour is disrespectful to the court or presiding judge: s 24A Local Court Act 2007, s 200A District Court Act 1973, s 131 Supreme Court Act 1970, s 67A Land and Environment Court Act 1979 and s 103A Coroners Act 2009.

The phrase “behaviour” is defined as any act or failure to act. The question of whether behaviour is disrespectful to the court is determined according to established court practice and convention.

The offence does not apply to police prosecutors, Australian legal practitioners or persons assisting the coroner, when they are acting in those capacities. The maximum penalty for the offence is 14 days imprisonment or 10 penalty units, or both.

[1-325] Disrespectful behaviour — procedure

In the case of adult offenders proceedings for the offence are to be dealt with summarily before the Local Court (s 24A(4)(b) Local Court Act 2007 (LCA); s 200A(4)(b) District Court Act 1973 (DCA); s 131(4)(b) Supreme Court Act 1970 (SCA); s 67A(4)(b) Land and Environment Court Act 1979 (LECA); and s 103A(4)(b) Coroners Act 2009 (CA)).

If the accused is a child the offence is to be dealt with in the Children’s Court (s 24A(4)(a) LCA; s 200A(4)(a) DCA; s 131(4)(a) SCA; s 67A(4)(a) LECA; and s 103A(4)(a) CA). If the person is not a child, proceedings against the person can be dealt with in the Supreme Court in its summary jurisdiction, where the offence is alleged to have been committed in the Supreme Court: s 131(4) SCA.

Proceedings for an offence of disrespectful behaviour may be brought:

  • at any time within 12 months of the date of the alleged offence

  • with the authorisation of the Attorney General and

  • by a person or member of a class of persons authorised, in writing, by the Secretary of the Department of Justice for that purpose.

A judge or magistrate can refer disrespectful behaviour in proceedings over which they have presided to the Attorney General. The Attorney General can authorise proceedings for an offence whether or not the behaviour has been referred by a judge or magistrate.

An official transcript or official audio or video recording of the proceedings in the court is admissible in evidence in proceedings for a disrespectful behaviour offence and is evidence of the matter included in the transcript or audio or video recording: (s 24A(9) LCA; s 200A(9) DCA; s 131(9) SCA; s 67A(9) LECA; and s 103A(9) CA).

The judge or magistrate who presided over the proceedings in which the alleged disrespectful behaviour occurred cannot be required to give evidence in proceedings for the offence.

The offence of disrespectful behaviour does not affect any power with respect to contempt. Proceedings for contempt may be brought in respect of behaviour that constitutes a “disrespectful behaviour” offence, but a person cannot be prosecuted for both contempt and the offence in respect of essentially the same behaviour (s 24A(12) LCA; s 200A(12) DCA; s 131(12) SCA; s 67A(12) LECA; and s 103A(12) CA).