“That’s outrageous, that is absolutely outrageous … I have never seen a more jaded, more bitter, more angry jurist in my life…”

HIS HONOUR: Noted that this addendum to the report of 9 July 1990 was admitted without objection; no foreshadowing of any application for an adjournment on the basis of that was made prior to that being admitted.

HIS HONOUR: I accept the fact - and I will have it noted - that you allowed it to be admitted without objection.

MR TONER: I did not – I said I object – I am arguing with your Honour for the simple reason I recall what I said and what I said is I object.

HIS HONOUR: Those last remarks of counsel were shouted of the top of his voice at myself, as a judge of the District Court; shouted at the top of his voice and I will give you an opportunity to have yourself heard as to whether or not you should be treated as being in contempt of this court.

MR TONER: Thank you your Honour.

HIS HONOUR: And where that leaves you as to where you stand for the remainder of this matter is another matter. You will have to concede you shouted at me.

MR TONER: I do and I apologise for that and I apologise for the offence I have given to your Honour and to this court.

HIS HONOUR: I hold you in contempt of this court and in the circumstances, because you obviously lost control in an arrogant and truculent manner, I will simply take no action other than to reprimand you in the strongest of possible terms and have that referred to the Bar Council.

MR TONER: Would your Honour also note that I in fact objected to the tender of the document?

HIS HONOUR: No, I do not accept that you objected to the tender. The way in which you put it and that was noted by the shorthand writer and myself as being without objection and I am satisfied that was the situation.

………

HIS HONOUR: I might say I propose to refer the transcript of what occurred to the Bar Council, not by way of complaint, but for whatever comment they may choose to make to you in relation to it.

MR TONER: In light of that your Honour ...

HIS HONOUR: Show some more discretion and self-control in future in your behaviour, you hove to remember as a member of the Bar you are in the eyes of the public as well as of the profession……

• The charge of contempt was not stated with precision;
• Mr Toner was not given an adequate opportunity to answer the charge; and
• The court did not hear Mr Toner in the deliberately formal way which the Act envisages before convicting him of the charge.

“It is obviously desirable that the point be settled one way or the other as soon as may be. Until the question is settled I find it difficult to see that any judge confronted with the question at first instance could be criticised for adopting either view”.

“You are a bastard aren’t you. You are a bloody gutless bastard, saying you don’t understand it. You know as much about the case as I do. I ought to knock your block off. It is alright for you, but I have been waiting years for my money.”

“When the Court convened the matters were called. Mr Wilson at the bar table, wearing the T-shirt to which I have referred, demanded a jury. I said, "I'm afraid you cannot have one". He said, "You are breaking the law". At this point there was an outcry from the persons gathered in the Court, as I say numbered about twenty to thirty, most of whom were wearing T-shirts identical to that worn by Mr Wilson. They abused me. They shouted offensive statements about corruption. I have no doubt that the reason for this abuse was an attempt to intimidate me in relation to the matter which, I am sure, they were well aware was being agitated by Mr Wilson and Mr Jury. This of itself was a serious contempt of Court.

I asked Mr Wilson whether he had any other applications. He asserted, "You are breaking the law and I will arrest you" and he moved forward towards the Bench. I said, "Very well. Remove him please" to a Sheriff's officer in the vicinity. Mr Wilson ignored this and said, "I will arrest you" and then said to the Sheriff's officer, "This fellow is breaking the law and you are aiding and abetting that offence". I said, "Mr Wilson, go. When you have a proper application I will hear what you have to say". Mr Wilson said, "You won't hear anything. I will issue a warrant for your arrest Mr Adams". I said, "There are rules (of conduct) in Court". He said, "You are a fraud and a liar". I mentioned that there were real matters to be determined. He said "A traitor and a fraud" and I directed his removal at which time Mr Wilson said, "I will issue a warrant for your arrest. Expect it."

During the whole of this time the Court was in uproar. The persons who had attended to support Mr Wilson and Mr Jury were yelling abuse at me and at the Sheriff's officer. There were references also to their right to trial by jury, Magna Carta, the United Nations and so on. I have no doubt that for some who were lawfully in the Court it was a frightening experience. It was disgraceful conduct.

“Their conduct was calculated to undermine the administration of justice by intimidation and the instilling of fear in order to bring about orders to which they thought their associates were entitled. This is the very antithesis of the doing of justice and it is disgraceful that people in this community should undertake such conduct.

“The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed.”

“It is convenient in the first instance to consider the general principles which are applicable in such a case as the present. It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of justice is a contempt of court, and that if it is shown beyond reasonable doubt that such interference was either intended or likely, this Court will exercise its jurisdiction to punish summarily the criminal offence which is constituted by the contempt: Bell v Stewart 28 CLR 419 at p430-p432; Austn Digest 277. When intention is established to interfere with the proper administration of justice by means of a publication which had a tendency to produce that result, a clear case of contempt is made out, calling for sharp punishment. Where the particular form of contempt complained of is the publication of matter which in fact has a tendency to prevent a fair trial by prejudicing the parties to litigation in a Court of justice in conducting that litigation, if intention to cause such prejudice is established a serious case of contempt is at once made out, whether the publication refers to the subject matter of the litigation, or takes the form of mere general denigration of the party in question: Higgins v Richards 28 TLR 202; Ex parte Myerson: Re Packer and Smith's Weekly Publishing Co 39 WN 260; 4 Austn Digest 280. But if no such intention is established, the rule that the publication of matter tending, or even likely, to prejudice a party in conducting litigation constitutes a contempt of Court is not invariable.

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter.”

"This fella's got to go in the bag. I don't want to talk too much about this fella (Hedia). You may have heard about him, his name is Michael Anthony Connolly and he is scum, absolute scum, pig, Michael Anthony Connolly. He admitted killing a little baby boy 18 months old, admitted that. He pleaded guilty but he pleaded guilty to manslaughter not guilty to murder so what are they doing here? A bit of plea bargaining. Violent crime and they let this fella plea bargain. Anyway don't ask me how he thinks he didn't murder the little fella. The child was found severely bashed: cuts, bite marks on his face. His name was Ari Jason Butt: beaten so badly that he died. How is that not murder? Could somebody tell me how that is not murder? The story emerging in court will make your blood run cold. Michael Anthony Connolly he was the boyfriend. He is the itinerant strayer of the mother of the child. Her name is Lavinia Butt. Now you've got to worry about her a little bit. The story is this, in 1994 she went to a BBQ with Connolly and a couple of her kids an 11 year old boy and 18 months old Ari and she happened to be pregnant at the time. The court heard at the BBQ she told Connolly that he might not be the father of the child she was carrying. His brother was probably the father. He drank two bottles of Southern Comfort. Two bottles! What is it 86%, 84%, 76% proof and he drank two bottles of the stuff. I don't drink it I can't stand it it's too sweet for me. And he then took the kids home. She let him, after two bottles, she let him take the kids home. The little boy Ari was later found dead in his cot. There's a picture of Lavinia Butt in the paper, she's pregnant again and fairly well pregnant by the look of it. I wonder who's the father of this one? Seems that with Lavinia it's like a lucky dip. What about Michael Anthony Connolly? He's pleaded guilty so all that remains is for him to be sentenced. But I'll certainly let you know the outcome of this but I would like to know why Michael Anthony Connolly was able to plead guilty of manslaughter and not of murder. Well I do know: plea bargaining, you see, the State saves money. That's what it is all about, but this fella deserves to be in the scumbag - open it up - in you go Michael Anthony Connolly you're scum."

• “The priorities in respect of the rights of litigants in a civil trial must be quite different from those where there is involved the right of a person to a fair trial upon a criminal charge. The right to a fair trial upon a criminal charge is so fundamental to our system of law that in any priorities it must be regarded as entitled to a primary place.” [35]
• “To publish matter which has a real and definite tendency to prejudice or embarrass pending criminal proceedings is contempt. It is not to the point that the publisher is then dealing with another subject, and that the prejudicial matter published is merely incidental to the other matter and that its addition and any prejudice is fortuitous.” [36]

“Q. So you're convinced he'll be found innocent after this re-trial?
A. I have a very deep conviction that Mr Justice Murphy is innocent of any wrongdoing.

…

Q. So you'd expect a different verdict from a new trial?
A. Oh yes.”

“How does the law of contempt approach the discussion of a topic of public concern or interest when in the course of that discussion the speaker or the author makes explicit reference to proceedings in which an individual has been charged with a criminal offence and that reference bears on the guilt or innocence of the accused or is capable of prejudicing him in his trial for that offence?

“But it is important to emphasize that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice.”

“There can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he has given? Let us accept that he has honestly given his evidence. Is he to be liable to be dismissed from his employment, or to be expelled from his trade union, or to be deprived of his office, or to be sent to Coventry, simply because of that evidence which he has given? I decline to believe that the law of England permits him to be so treated. If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences ... I have no hesitation in declaring that the victimisation of a witness is a contempt of court, whether done whilst the proceedings are still pending or after they have finished."

• “The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who would wish to seek curial vindication of their rights.”
• “The gravamen of this particular type of contempt is the potential interference in the litigant’s freedom to conduct litigation as he or she chooses. ‘The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate, to negotiate rather than litigate the settlement of the dispute, and/or to withdraw an action or a defence after setting it in motion. The latter options may be exercised up until the time the court delivers judgment.”

“F: Tom, this is Farid from Midas West Ryde

N: Yes

F: Are you going to court to testify against me?

N: I don’t know. How do you know I’m going to court anyway?

F: Glen told me. What did you mean? Either you are going to court or you are not going to court.

N: I don’t know. I’m waiting for a phone call. Why does it matter to you anyway?

F: I wanted to know who my friends and enemies are.

N: I don’t know yet if I am going to court. I am expecting a call today.

F: Are you going to go in there and say that you don’t know nothing or are you going to tell them what happened?

N: You should not be calling me. I have to go.

F: If you do say something it is going to hurt me and my family.

N: Look, I have to go.

“It is not a contempt to ring or approach or speak to a potential witness to ascertain what the witness is going to say, if called. There is no contempt involved in asking, “Are you going to court to testify against me?” Nor in my view is there necessarily any contempt involved in asking, “Are you going to go in there and say that you don’t know nothing or are you going to tell them what happened?”, at least unless accompanied by a suggestion, express or implicit, that the witness should do the former; such an inquiry simply seeks to elucidate what the witness is going to say and, in particular, whether the witness is going to tell what the enquirer, in the circumstances, fears will be disclosed if the truth is told, but might not be disclosed if nothing is said.

But it is when he goes on to say, “If you do say something, it is going to hurt me and my family” that in my view the line was definitely crossed. The statement, “If you do say something, it is going to hurt me and my family” can only have had as its purpose the raising of some, albeit perhaps slight, pressure, influence or encouragement not to tell the whole truth. At the very least, it was calculated to have that effect.”

“There is a contempt of court if anything is said or done which has a tendency, as a matter of practical reality, to interfere with a criminal trial by influencing the minds of jurors upon the issues which they have to decide. There is a contempt whether the conduct suggests that the accused is guilty or innocent. And this is so, whether or not there was an intention to influence the jurors. I refer to the law relating to contempt not in order to accuse the friends and relatives of contempt, but only to illustrate just how seriously the law insists upon criminal trials proceeding without any conduct which is likely to influence jurors. What is in issue is not really the rights of the accused against the rights of victims (or their families). What is in issue is the integrity of the process itself by which criminal justice is administered. If that integrity suffers, so does the whole criminal system.[68]

“Such is the concern of courts about the risks involved in identification evidence that trial judges are bound by authority to give appropriate warnings and directions drawing the attention of juries to these risks. One of the particular problems about identification evidence is that the most honest of witnesses, completely confident in their own beliefs, can be mistaken. Another problem is that of suggestibility. People can honestly believe they recognise somebody because of ideas that have been suggested to them, and human nature is such that it is difficult, and sometimes impossible, for people to distinguish between what they know, and what they believe, or between the various sources from which their beliefs have come to be made up.”

“In our opinion the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime, and it is, in our opinion, lawful for any person to publish information as to the bare facts relating to such a matter. By “bare facts” we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true, and may or may not be admissible in a Court of Justice, other considerations arise. The lawfulness of the publication in such cases is conditional, and depends, for present purposes, upon whether the publication is likely to interfere with a fair trial of the charge against the accused person. (emphases added)

The publication of matter should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publishing the matter, that:

(a) members, or potential members, of a jury, or a witness or witnesses, or potential witness or witnesses, in legal proceedings will:
(i) become aware of the matter; and
(ii) recall the content of the matter at the relevant time; and

(b) by virtue of those facts, the fairness of the proceedings will be prejudiced.

Legislation should provide that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if:

(a) the material relates to a matter of public interest; and
(b) the public benefit from the publication of the material, in the circumstances in which it was published, and from the maintenance of freedom to publish such material, outweighs the harm caused to the administration of justice by virtue of the risk of influence on one or more jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.

Legislation should provide that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if the publication the subject of the charge was reasonably necessary or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public, or to facilitate investigations into an alleged criminal offence.

Early English cases

In 1765, Sir Fletcher Norton [89] having moved for a writ of attachment, Mr Almon [90] was brought before Wilmot J in the Court of King’s Bench to answer a charge of contempt for publishing a pamphlet accusing Lord Mansfield, the Lord Chief Justice, of having acted “officiously, arbitrarily and illegally”. [91] Wilmot J foreshadowed the formulation by modern courts of the rationale for the punishment of this form of contempt in these terms: [92]

“[I]t excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are channels by which the King’s justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary.”

“The terrors of Mr Justice Darling will not trouble the Birmingham reporters very much. No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty-headedness, who admonished the Press yesterday.”

“The serious point in this case, however, is that an individual owning such views as those of Dr Stopes cannot apparently hope for a fair hearing in a Court presided over by Mr Justice Avory – and there are so many Avorys.”

“Mr Justice Higgins is not satisfied that ‘slowing down’ is practised in industry. ... The lack of judicial knowledge of facts well known to the parties is not unknown in cases outside industrial matters, and, although the Court can take no cognizance of notorious facts, there is nothing in law to forbid the public from feeling amused at this display of innocence from the Bench. ... The detachment of the Arbitration Court from the facts of industrial life explains, in some measure, why industrial life is rapidly detaching itself from the Court.”

“in the mind of any reasonable man, bring the Court into disrepute, or, to use synonyms, disesteem, discredit, disgrace or dishonour”. [102]

“difficult indeed to believe that any such comment would sap or undermine the authority of any Court in the mind of any reasonable person. Indeed, amongst reasoning men, we believe that the practice of the Court would rather be supported and seem to be well calculated to ensure a proper and just administration of the law free from the prejudices or want of knowledge of any particular officer.” [103]

“Words calculated to bring a Court into disrepute are words imputing to it, not erroneous judgments or a mistaken view of the subject it deals with, but, as in the case of individuals, conduct or character that, if true, would forfeit the respect of the community.”

• accusing the four majority judges in the Wik decision of unacceptable judicial activism and described Justice Kirby's separate judgement as “awful”; [107]
  
• all four majority judges in the Wik case were guilty of “the maximalist approach to judicial intervention in legislative creation”; [108]
  
• “I'm attracted to the thought that it would be a capital C Conservative lawyer/judge…That doesn't necessarily mean, by the way, someone who's had any direct contact with the Liberal or National Party," he said. "There are capital C law persons… who may well have connections to both sides of politics. In other words someone who's somewhat conservative on the matter of judicial activism.” [109]
  
• “However, I am absolute that it's a legitimate thing to debate the judgments of the High Court if it is dominated by the majority who believe in judicial activism.” [110]

“You will appreciate that public confidence in the constitutional institutions of government is critical to the stability of our society.

………

Neither the cooperation that is required among the branches of government nor the dignity of this Court would be advanced by my making a public statement to repel the attacks which you have made. Indeed, Courts are not capable of responding – nor would they wish to respond – to media attacks. I ask you to bear this in mind and to consider whether the making of attacks on the performance by the Court of its constitutional functions is conducive to good Government, even if an attack can gain some temporary political advantage.”

“The defence that he has given in respect of the High Court's performance is pathetic and lamentable…What we've got are self-appointed kings and queens…The current High Court, across large parts of Australia, is increasingly being held in absolute and utter contempt.” [113]

“The constitutional impropriety of the Deputy Prime Minister's attack upon members of the High Court is obvious enough and it should have been obvious to Mr Fischer. For a leading member of the Federal Government intemperately to criticise the institution charged by the Constitution with the duty of determining the validity of Commonwealth legislation does not strike the onlooker as the height of political wisdom. When the decision is one any first-year law student could have told Mr Fischer and his National Party colleague, Mr Borbidge, was not only in accordance with long- established legal principle, but arrived at after meticulously written elaboration of the terms of the pastoral leases and the legislation in question, Mr Fischer's foray could be considered unfair and even misleading. Mr Borbidge's crude outburst was perhaps prompted by the rancour of a bad loser, for the pastoral leases in the Wik Case were granted by the Queensland Government and the legislation had been passed by the Queensland Parliament and Queensland fought and lost the litigation.”

“Recent High Court decisions, the Court and the justices were labelled “bogus”, “evasive”, guilty of “plunging Australia into the abyss”, a “pathetic ... self-appointed [group of] Kings and Queens”, a group of “basket-weavers”, “gripped ... in a mania for progressivism”, purveyors of “intellectual dishonesty”, unaware of “its place”, “adventurous”, needing a “good behaviour bond”, needing, on the contrary, a sentence to “life on the streets”, an “unfaithful servant of the Constitution”, “undermining democracy”, a body “packed with feral judges”, “a professional labor cartel”. There were many more epithets of a like character, many stronger.”

“tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.”

• “…the High Court knocked holes in the Federal laws. Those laws have certainly been perforated by the keen legal intelligences of the High Court bench.”
• “to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia, the High Court declared that Mr Kisch must be given his freedom”
• “When the amendments [to the Immigration Restriction Act] are made we should invite [Mr Kisch] to jump ashore again to see whether the new Act pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw.”
• The High Court was said to have a “keen, microscopic vision for splits in hairs which is the admiration of all laymen”.
• “Well may [they] cry, like the historic British monarch, for some gallant champion to rid them of this pestilent Court.”
• “If the High Court were given some real work to do the Bench would not have time to argue for days on the exact length of the split in the hair, and the precise difference between Tweedledum and Tweedledee.”
• “Some of these days a commonsense Government may tell the High Court that, as it has very little useful work to do, it will be required to examine the Acts which will be sent to it straight from the Legislature, to stamp OK upon them, or to suggest amendments which will make them thoroughly legal, as the case may be, and then return them by swift messengers for the Vice-Regal signature.”

“Such imputations, if permitted, could not but shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law.” [121]

"The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher."

“Q: Mr. Gallagher, what is your reaction (or response) to the Court's decision?"

A: I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind." (emphases added)

“The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority": per Dixon J. in R v Dunbabin; Ex parte Williams. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.”

“[N]o wrong is committed by any member of the public [much less, it may be thought, an official called upon to comment] who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice...Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” (emphases added)

Q: Mr Mundey, what’s your impression of this morning’s decision?
A: Well, I think it's a miscarriage of justice, it is very evident that right from the start that the barrister who did an excellent job, Jim Staples, was prevented from giving very important and relative material and because of this well, you couldn't call it a real case. I think that, once again it showed that the judge himself was a racist. It shows you the extent to which racism exists within our society and it shows you what a tremendous problem we have, all Australians, to overcome this deeply ingrained racism.

……

Q: Will the Federation be considering any further, say, strike action as a result of this morning's decision?

A. Well the Executive will meet this afternoon and we will weigh everything up. I think the main purpose, the industrial action by the workers here this morning, the spontaneous action of workers walking off jobs, stopped the racist judge from sending these two men to jail. That's the real position.

“the words the defendant used meant that the judge had decided to send Mr Pringle and Mr Phillips to gaol, but he changed his mind because he was overawed by the action of workers walking off their jobs and attending the trial and by the threat to call a national strike…the words which he did use were calculated to express a view that a judge, having made up his mind to take a particular course of action, was overawed into taking another course of action…Such a statement must tend to induce a lack of confidence in “the ordered and fearless administration of justice”, and was in the circumstances quite unwarrantable.”

“Anyone who had the slightest acquaintance with the learned Chairman [of the Court of Quarter Sessions] involved in the present case would realize that a suggestion that he would be overawed in this way is a ludicrous one, but nonetheless it is in my opinion of the greatest importance that the public generally should be disabused at once as to the truth of such a claim.”

“The exercise, especially of a superior court’s summary jurisdiction for contempt, should be reserved for cases when the action or publication in question clearly and beyond doubt is calculated to bring the court into contempt and to lower its authority. Otherwise, the courts should leave to public opinion the reprobation of scandalous attacks or comments.”[135]

A superior court of record has inherent jurisdiction to deal summarily with any contempt affecting its own proceedings. [136] There are various provisions of the Supreme Court Act 1970 (NSW) relevant to contempt including:

Section 48(2)(i)

There are assigned to the Court of Appeal proceedings in the Court for the punishment of contempt of the Court, but only if the contempt consists of:

(i) contempt in the face of, or in the hearing of, the Court of Appeal, or


(ii) disobedience of a judgment or order of the Court of Appeal, or


(iii) breach of an undertaking given to the Court of Appeal.



Section 53(3)

Subject to the rules, there are assigned to each Division proceedings for the punishment of contempt of the Court, but only if the contempt consists of:

Summary procedure: the norm

A charge of contempt is now dealt with summarily, by either motion or summons. Trial on indictment is obsolete. [137] There is no recorded case during the 20th century in New South Wales of any contempt cases prosecuted other than by summary procedure.

Immediate procedural consequences of prima facie contempt

Contempt in the face of the Court

In the event of an allegation of contempt in the face of the Court, rule 2 in Part 55 Division 2 of the Supreme Court Rules 1970 (NSW) provides:

Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court, committed in the face of the Court or in the hearing of the Court, the Court may:

(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.

(a) cause the contemnor to be informed orally of the contempt charge(s);

(c) after hearing the contemnor, determine the matter of the charge; and
(d) make an order for the punishment or discharge of the contemnor.

“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.”

“sent elsewhere to be dealt with, as our law normally provides, by neutral decision makers, hearing evidence proved and tested and after the public officials normally concerned in upholding the criminal law have had an opportunity to consider their responsibility to vindicate the administration of justice. A conviction being found, punishment may be imposed, if at all, by judicial officers who can approach the case with that neutrality and detachment which is the properly prized feature of justice in our courts.”

Briefly retracing the history

Under the jurisdiction of the early common law courts, the contemnor was said to be in misericordia regis (in the King’s mercy) or capiatur (taken or imprisoned). [167] In the former case, the contemnor was ‘amerced’, whereby a money payment, which was fixed by the court and later by a local Justice of Assize and jury, had to be made to the Crown. [168] Failure to do so would result in goods being distrained but not imprisonment. [169] If the contemnor was “capiatur” or imprisoned, the contemnor could avoid it by “making fine with the Crown” by paying a fixed sum in lieu of imprisonment. [170]

Amercement typically applied to parties to the proceedings from which the contempt arose, whereas imprisonment applied to those who are not parties to the underlying proceedings. [171] A contemnor could not be both imprisoned and made liable to pay a pecuniary penalty. [172]

Where court officers committed contempt, they were both imprisoned and required to pay an amount fixed by the court; there was no pecuniary substitute for incarceration. [173] It was in this setting, that the phrase “to make fine” to avoid incarceration was replaced by the more familiar modern phrase “to be fined” to indicate a compulsory payment in default of or in addition to which imprisonment followed.

The practice of the Star Chamber, which also had jurisdiction to punish for contempt, was always to impose a pecuniary penalty and imprisonment. Before the abolition of the Star Chamber in 1641, records show the Kings Bench beginning to absorb some of the practices, including the exercise of the power to fine and imprison. [174]

Imprisonment and fines

Imprisonment and fines remain the most common penalties for contempt. For example, in cases of sub judice contempt, where the contemnor is commonly a corporate media entity, the usual penalty imposed is a fine but a term of imprisonment may be imposed in addition to or instead of the fine, albeit rarely, where the contemnor is not a corporation. The Court fixes, by way of expiation, [175] a term of custodial sentence or a fine. In ASIC v Michalik Palmer J said: [176]

“In punishing contempt, a court of equity acts no differently from a court of common law. The distinction between common law and equity in this context is meaningless. In punishing for contempt, a judge of the Supreme Court is vindicating the authority of the court itself, regardless of the division in which the judge happens to be sitting.”

Rule 13 in Part 55 Division 4 of the Supreme Court Rules 1970 (NSW) provides:

(1) Where the contemnor is not a corporation, the Court [177] may punish contempt by committal to a correctional centre or fine or both.
(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

Although there is express reference to punishment for contempt in Part 55 Division 4 rule 13(1) of the Supreme Court Rules, the rule confirms the Court’s inherent power to punish for contempt and does not exhaust it. [178]

In the exercise of summary jurisdiction, although the Court is satisfied that a technical contempt [179] has been committed the Court may determine not “convict” or “punish”. As Brooking JA (with whom Phillips JA and Batt JA agreed) said in Re Perkins: [180]

“If on a trial on indictment the jury finds a verdict of guilty, the trial judge cannot say there was not a conviction (Cobiac v Liddy (1969) 119 CLR 257 at 273 per Windeyer J). But when called upon to exercise the summary jurisdiction in contempt the judge does have what appears to be a unique discretion at common law: he may in his discretion decline to adjudge the respondent guilty of contempt, that is, decline to convict, notwithstanding that, as judge of the facts and the law, he is satisfied that a contempt has been committed. Yet again I remind myself of what Sir Wilfred Fullagar said of the reduced significance of the distinction between conviction and sentence where the summary jurisdiction is invoked.” (emphases added)

Principles relevant to the exercise of the power to punish for contempt

In Registrar of the Court of Appeal v Maniam (No 2) Kirby P said: [183]

“A conviction of contempt of Court is a conviction of an offence, criminal in nature. Punishment of the convicted Contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, namely, the undisturbed and orderly administration of justice in the Courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the Contemnor, deterring the Contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way: See Director of Public Prosecutions v J John Fairfax & Sons Limited (1987) 8 NSWLR 732 at 741.” (emphases added)

“The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: See Australian Consolidated Press Ltd v Morgan (1965)112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a Court order. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard.” (emphases added)

• the presence or absence of an intention to interfere with the administration of justice
• the effects of the prejudicial publication
• the existence of a system to prevent prejudicial publications
• the extent of control exercised over the contemptuous material
• training, experience and academic history of individuals
• reliance or failure to rely on legal advice on whether or not to publish the offending material
• an undertaking not to repeat the offence
• the size of the business and financial circumstances of the defendant
• extent of circulation of material according to audience, size and location
• a plea of guilty
• an apology
• prior convictions for contempt.

Applicability of the Crimes (Sentencing Procedure) Act 1999

The provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to sentencing for contempt of Court in conjunction with those considerations of general application enumerated in Wood v Staunton (No 5). [189] The sentencing principles in the Act direct that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. [190] There is also the possibility of alternatives to imprisonment, such as a community service order, a good behaviour bond or suspended sentence. [191]

Regard should be had to the general sentencing principles in s 3A of the Act together with factors, both aggravating and mitigating, referred to in s 21A. For example, objective criminality, criminal history, prior good character, duress, contrition or a guilty plea may be taken into account when determining the appropriate sentence for contempt of Court.


Changes proposed by the NSW Law Reform Commission

There are currently no upper limits for penalties in cases of criminal contempt, including sub judice contempt. One of the recommendations of the Law Reform Commission was: [192]

“Legislation should provide an upper limit for fines that may be imposed on persons convicted of criminal contempt. The maximum amount to be set in legislation should be substantially more than $200,000, the highest amount imposed so far in New South Wales in sub judice cases, to enable courts to deal with the worst class of criminal contempt cases. The legislation need not distinguish between the maximum fines that may be imposed on corporate offenders on the one hand, and individuals on the other.”

The Commission, based on the support arising from its consultations, implements its recommendation that the law should specify a maximum fine for criminal contempts.

The maximum amount to be set in legislation should be substantially more than $200,000, the highest amount imposed so far in New South Wales in sub judice cases. This is to allow for courts to deal with more extreme cases than those that have occurred and come before the courts. It should also be taken into account that the recommendation would apply to other forms of criminal contempts, for which the amount of $200,000 could, in the worst cases, not be sufficient.

The legislation need not make a distinction between the maximum fine that can be imposed on bodies corporate as opposed to that which may be ordered against individual offenders, such as journalists, radio announcers, editors or individuals interviewed by the media. This would allow courts to deal with situations when the financial resources of an individual offender are so substantial that a fine comparable to those imposed on corporate offenders may be justifiable. Moreover, it would give the courts the discretion to set a large fine on individuals, in circumstances where it is the employer organisation who might in the end pay it, to force the latter to take measures to prevent the commission of the offence by its employees. On the other hand, the courts could still, when appropriate, take due account of the fact that individual offenders will normally have less financial resources than corporate offenders.

“Legislation should provide that the upper limit for a custodial sentence that may be imposed on a person convicted of criminal contempt should be 5 years.”

Legislation should expressly provide that the various methods of and alternatives to serving custodial sentence, such as community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing, suspended sentences, periodic detention orders, home detention orders and parole, are available for the sentencing courts to use in criminal contempt proceedings.

The Costs in Criminal Cases Act 1967 (NSW) should be amended to enable the Supreme Court to make an order for costs against a publisher of material, in contempt of any court at which a criminal trial is held before a jury, if the publication causes the discontinuance of the trial.

• The application of the legislation should not be restricted to media organisations.
  
• An order for compensation should only be made where there has been a conviction for contempt.

• An order for compensation should be made where contemptuous publication was the principal or substantial reason for the discontinuation of the trial.

• The Court should have a discretion to order an amount which is “just and equitable in all the circumstances”.

• The “legal costs” of the parties and the provision of “legal services” to the accused should include disbursements directly related to the aborted trial. The costs exclude the cost to the State of the remuneration of judicial and other court staff.

• In ordering a sum for compensation, the Court should be able to consider the amount of any fine ordered by the sentencing court to be paid by the contemnor.

• appeal the contempt conviction;
• make an application to purge the contempt;
• seek an order discharging the contempt ruling where it has been purged;
• set aside the order upon which the contempt was founded; or
• defend himself or herself against any accusation or application brought against him or her.

“Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt…”

“… the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, for so long as it continues, it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

“[The Council] submitted that there was a close connection between the subject matter of the suit in the L & E Court, and the subject of the suit in the present court, because both the proceedings in the L & E Court, and the letter about which complaint is made in the present litigation, involved attempts by the Council to enforce the planning legislation concerning the one piece of property. I do not accept that these factors are ones which justify an erosion of the exception, now well established, that the principle that a party in contempt cannot be heard is confined to contempt in the same suit as that in which the application was made.”

“I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning LJ better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to lead to the same conclusion, as they did in Hadkinson itself and would have done in The Messiniaki Tolmi [1981] 2 Lloyd's Rep 595.” (emphases added)

• in any case take account of whether the contemnor shows defiance in not purging the contempt and therefore undermines the importance of prompt and unquestioning compliance with court orders; and
• enable the Court to properly consider issues of proportionality [218] so as to determine whether the interests of justice are best served by hearing the contemnor or not.

• sub judice cases from 1980 to 1999 in New South Wales, Victoria, Western Australia, Queensland and South Australia; [219] and

• and examples of other types of criminal contempt mainly from the New South Wales jurisdiction. [220]