Contempt of court

[60-000] Introduction

The court’s powers in relation to contempt are found in s 24 Local Court Act 2007. Those powers are the same as the District Court with respect to contempt of court committed in the face or hearing of the court: s 24(1).

See generally:

  • Civil Trials Bench Book at [10-0000]ff

  • Criminal Trial Courts Bench Book at [1-250]ff.

[60-010] Has there been a contempt in the face of the court

Contempt in the face of the court is an act which has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings: Witham v Holloway (1995) 183 CLR 525 per McHugh J at 538-539.

Examples of contempt include:

  • abusing and swearing at a magistrate: Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994

  • filming witnesses with a view to intimidation: Prothonotary of the Supreme Court of New South Wales v Rakete (2010) 202 A Crim R 117

  • prevaricating or refusing to answer questions: Keeley v Brooking (1979) 143 CLR 162

  • refusing to take the oath or give evidence: Smith v The Queen (1991) 25 NSWLR 1

  • refusing to leave the court when directed: In the matter of Bauskis [2006] NSWSC 908

  • disobeying court orders including subpoena: O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358.

Generally, rudeness and even extreme discourtesy by legal practitioners, will not be considered to be contempt: Toner v AG for New South Wales (unrep, 19/11/91, NSWCA). Further, like police, judges and magistrates are, by their training and temperament, able to resist the sting of insults directed to them: see Coleman v Power (2004) 220 CLR 1 at [200]. In Ferguson v Walkley (2008) 180 A Crim R 294; (2008) 17 VR 647, Harper J said at [36]:

It is no offence simply to be angry with the authorities (including, of course, judicial authority). Some people can articulate their anger in measured language that clearly explains their reasons for feeling as they do. Others, especially when their anger is combined with high emotional stress, or alcohol, or other debilitating factors, cannot … Depending always on all the relevant evidence, it would probably be quite wrong to charge someone with an offence simply because such language was used in anger.

[60-020] Alternatives to summary charge

All options other than a summary charge of contempt should be considered first. Summary proceedings should only be instituted where it is urgent and imperative that the punishment be immediate. Summary proceedings are a last option, should be exercised with restraint, and only used in exceptional circumstances: Keeley v Brooking (1979) 143 CLR 162.

It is preferable that the court explore all options other than charging and hearing the matter summarily, as the magistrate may be the victim, a witness, the prosecutor and the judge of fact and ultimately of penalty. In European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, Kirby P said at 452:

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.

Other options that should be considered include:

  • a warning, reprimand or exclusion from court

  • an opportunity for the alleged contemnor to seek legal advice

  • a “cooling off” period followed by an opportunity for apology

  • whether an offence under a legislative provision has occurred, including a breach of the Court Security Act 2005, in which case the matter may be referred for prosecution

  • whether, if the conduct involves a legal practitioner, a complaint could be made under the Legal Profession Act 2004

  • in civil matters, where the conduct involves a legal practitioner, whether an order under s 99 Civil Procedure Act 2005 could be utilised

  • whether the matter should be referred to the Supreme Court under s 24(4) Local Court Act 2007. If so, the reference is sent to the prothonotary

  • whether disrespectful behaviour ought be referred to the Attorney General under s 24A(7) Local Court Act 2007.

The decision to proceed to a charge for contempt is a power to be used sparingly and only in serious cases. Its usefulness depends upon the wisdom and restraint with which it is exercised: Ex p Bellanto; Re Prior [1963] NSWR 1556 at 1566.

[60-040] Referral to the Supreme Court

Section 24(4) Local Court Act 2007 enables the court to refer a matter to the Supreme Court for determination where it:

(i) 

is alleged by another party, or

(ii) 

appears to the Court on its own view that a person has committed a contempt of court.

In either case, before exercising its power of referral, the court must afford procedural fairness to a proposed contemnor: Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 at [59], [77]. Failing to do so may render subsequent proceedings in the Supreme Court a nullity: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 23) [2017] NSWSC 535 at [64].

This is because an exercise of the s 24(4) referral power involves potential prejudice to the alleged contemnor, as the penalty which can be imposed by the Supreme Court is greater than that which the Local Court can impose if it decides to deal with the contempt itself under s 24(1): Dangerfield at [56]; Chan at [29].

Further, in instances where the Local Court comes to its own view that a person is in contempt, the referral of the matter to the Supreme Court requires proceedings to be commenced by the Prothonotary. There is no capacity for a referral to the Prothonotary to obtain advice as to whether or not proceedings should be commenced: Chan at [54].

Exercising the power of referral 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].

Suggested approach (see Dangerfield at [51]ff and Chan at [59]–[61])

1. 

Advise the alleged contemnor of the two procedural options available under s 24 and their consequences.

2. 

An adjournment may be needed to enable the alleged contemnor to receive advice from their legal practitioner (or seek advice, if unrepresented).

3. 

Provide the alleged contemnor with an opportunity to address the question of how their alleged contempt should be dealt with, including whether the Local Court should itself deal with the matter.

4. 

A party (other than the court) raising an allegation of contempt should also be provided with the opportunity to respond to any submissions of the alleged contemnor.

[60-060] Summary charge

In the event it is considered that none of the above-mentioned options should be utilised as an alternative to a summary charge, the person in contempt should be orally charged by the magistrate.

If the contemnor is not present a warrant may be issued: subs 24(1) and (3) Local Court Act 2007, s 199 District Court Act 1973.

[60-080] Adjournment for defence to charge

The charged person must be afforded a reasonable opportunity to make a defence to the charge, which will in most cases require an adjournment and the provision of information on legal aid. It is possible, but would be unusual, for the charged person to be held in custody. Bail must be considered: s 90 Bail Act 2013.

[60-100] The hearing

Where there is a plea of not guilty, a hearing is required. The magistrate is entitled to make use of his or her own observations, and should inform the defendant of these. Witnesses may be called by the court. The defendant has a right to, but is not obliged to give and call evidence. After the hearing, the magistrate determines the matter of the charge with the criminal standard of proof required: Coward v Stapleton (1953) 90 CLR 573.

[60-120] Penalty

If the defendant is found guilty, the court may punish by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days: s 24 Local Court Act 2007; s 199 District Court Act 1973.

The power to punish for contempt is exercised to vindicate the integrity of the court and of its proceedings, and is rarely if ever exercised to vindicate the personal dignity of a judge: Lewis v Ogden (1984) 153 CLR 682.

For considerations on penalty for abuse to the court: see Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994.

For considerations on penalty for refusing to give evidence: see Principal Registrar of Supreme Court of (NSW) v Tran (2006) 166 A Crim R 393 which includes a schedule of comparable sentences for contempt of that type.

[60-140] Purging contempt

Generally, contemnors should be given an opportunity to purge their contempt, particularly where there is a refusal to give evidence: Smith v The Queen (1991) 25 NSWLR 1. There is an overriding power to discharge a contemnor prior to the expiration of sentence: s 24(2) Local Court Act 2007.