Contempt of Court: Consultation Paper (html)

3. General issues with the law of contempt of court

Introduction

3.1 This chapter identifies questions about a number of overarching issues with the law of contempt of court.

3.2 The offence of contempt of court is often described in case law as sui generis, which means that it belongs to a species all of its own and so is unique.^[1]

3.3 The consequences of this are twofold. First, there are many unusual features of the law

of contempt of court which are not easily reconciled with community expectations about how a law—particularly a law which provides for the imposition of punitive sanctions—should operate.

3.4 Secondly, there is significant uncertainty about the scope of the law of contempt of court and the procedures to be applied in contempt proceedings.

3.5 Issues covered in this chapter include:

• whether the scope and elements of the offence of contempt of court are too broad and discretionary to enable people to know what conduct might be subject to punishment

• whether the procedural safeguards which apply to contempt proceedings are sufficiently clear and adequate given the punitive nature of those proceedings

• whether greater guidance is required about the relationship between statutory offence provisions and the courts’ inherent contempt power

• whether there should be a statutory maximum penalty for contempt of court and whether the Sentencing Act 1991 (Vic) should directly apply to contempt proceedings

• whether there is a need for greater clarity and certainty about the use and role of judicial warnings in deciding whether and how a person should be dealt with for contempt.

Uncertainty of scope

3.6 Under the common law, it is not possible to define with precision what conduct might be liable to punishment as a contempt of court.

3.7 In 1906, Justice Cussen in the Supreme Court set out a broad definition of contempt of court which has since been cited with approval many times, including by the High Court:^[2]

Its essence is action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using

that term in a broad sense.^[3]

3.8 Following from this definition, Victorian courts have, in general terms, held that:

• The offence of contempt will be established if it can be proved beyond reasonable doubt that the alleged contemnor wilfully engaged in conduct and that conduct had a tendency to interfere with the administration of justice.

• It is not necessary to prove that the alleged contemnor had an intention to interfere with the administration of justice.

• It is not necessary to prove that the conduct did in fact interfere with the course of justice.^[4]

3.9 Case law and academic texts list and describe general categories of contempt. However, these do not provide an exhaustive catalogue of the ‘many and varied’^[5] ways in which a person may be found to be in contempt of court. At its highest, a list of the categories of contempt is a list of thematically grouped examples of conduct which the courts have found, in the past, to be an interference with the proper administration of justice and therefore punishable as contempt. Conduct which constitutes contempt of court may fit within multiple categories or it may not fit within any established category but still be regarded as contempt.

3.10 The lack of precision in defining the offence of contempt affords the court the flexibility to deal with any conduct, however unforeseen or novel, which interferes with or has a tendency to interfere with the due administration of justice. In effect, the courts are able to take an approach of ‘we will know it when we see it’ to defining contempt of court.

3.11 However, the result is that members of the public are not able to know in advance what behaviour might be regarded as sufficiently unacceptable to warrant conviction and punishment for contempt.

3.12 A recent New South Wales case provides an illustrative example. A journalist, attending court to report on a murder trial, allegedly entered the jury room where she was found by the sheriff and removed before she had spoken to any jury members.^[6] The presiding judicial officer informed the journalist that she might be in contempt of court and gave the journalist an opportunity to show cause why she should not be dealt with for contempt.^[7] Evidence was provided to the court that the journalist was not an experienced court reporter, was unfamiliar with the layout of the particular court and had inadvertently attempted to enter the jury room, where she was stopped by the sheriff. There were no signs that prohibited her entry.^[8]

3.13 At the ‘show cause’ hearing, the journalist apologised to the court for her actions and the disruption they caused.^[9] It was submitted on her behalf that her conduct did not require referral for contempt because she had not intended to influence or corrupt a juror or otherwise interfere with the administration of justice. It was submitted that what she had done was not the result of an attempt to interfere with the jury, but rather the result of a series of very unfortunate events. It was also noted that in the circumstances her actions had fortunately not in fact resulted in a serious interference with the due administration of justice.^[10]

3.14 In view of the journalist’s apology and submissions, the presiding judicial officer decided not to refer her to the Prothonotary to be dealt with for contempt. However, she commented that:

I do not accept what was encompassed in the submission that a successful attempt by a journalist to gain entry to a jury room, or to speak to a juror there, is not “a recognised category of contempt”. It does not follow from the fact that no earlier authority can be found which has dealt with such conduct, that it could not involve contempt of the Court. That there is no previous case where such behaviour has arisen to be considered, simply reflects how extraordinary it is for a journalist to make any attempt to enter a jury room, during an ongoing trial. While, as in this case, relevant questions arise as to what the journalist intended, there can be no question, in my view, that such conduct can involve a contempt, given that it can undoubtedly have a real prospect of interfering with the administration of justice, during an ongoing trial.^[11]

3.15 The case raises a number of questions: Could an inadvertent but unauthorised entry into the jury room constitute a contempt? Or only if it is a journalist who gains entry? Or only if there is an attempt to talk to the jurors? Or only if there is an attempt to talk to the jurors about a matter related to the case?

3.16 Such questions are not readily answered by reference to the broad definition of contempt propounded by Justice Cussen and set out above. Such questions are also not readily answered in a context where it is accepted that conduct may constitute contempt of court even where there is no intention on the part of the contemnor to interfere with the proper administration of justice and no interference has in fact occurred.

Possible reforms

3.17 The power of the courts, particularly the inherent power of superior courts, to punish for contempt is not limited to specific classes of conduct. It is a power directed towards safeguarding the proper administration of justice rather than prohibiting any precisely identified mischief.

3.18 As currently expressed in case law, the power to punish for contempt gives the courts significant flexibility to address conduct that might represent a threat to the proper administration of justice. The price of this flexibility is a lack of certainty about the type and scope of conduct which will attract conviction and punishment.

3.19 The following chapters consider the implications of this uncertainty in the context of specific manifestations of contempt of court and pose questions about whether these different manifestations of contempt of court should be replaced by statutory provisions.

Question

2 Do the courts need a general power to punish any conduct that has a tendency to interfere with the proper administration of justice? Alternatively, should the law specify the conduct subject to sanction? If so, should only conduct that is intended to interfere with the administration of justice be subject to punishment?

Procedural safeguards

3.20 The right of an accused person to a fair trial is a central pillar of the criminal justice system.^[12] This is reflected in the Charter of Human Rights and Responsibilities Act 2006 (Vic) which establishes a framework for the protection and promotion of human rights in Victoria.

3.21 Section 24(1) of the Charter states:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

3.22 Section 25 sets out a more extensive list of fair trial rights which are described as ‘rights in criminal proceedings’.

3.23 Although a person found guilty of contempt of court may be convicted and imprisoned or fined, contempt proceedings are not conducted as criminal proceedings. Contempt proceedings are heard under the Supreme Court (General Civil Procedure Rules) 2015 (Vic) and the County Court Civil Procedure Rules 2018 (Vic) (General Civil Procedure Rules)^[13] by a judge sitting alone.

3.24 The unusual nature of contempt proceedings has given rise to considerable uncertainty about the laws, principles and procedures that apply.

3.25 In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (CFMEU v Boral)^[14] the High Court confirmed that contempt proceedings commenced under Order 75 of the General Civil Procedure Rules are civil proceedings and cannot be regarded as the equivalent of a criminal trial.^[15] The High Court confirmed that Order 75 does not stand outside the General Civil Procedure Rules and that contempt proceedings are within the ordinary application of those Rules.^[16] In that context, Justice Nettle, in a concurring judgment, set out a number of general principles, all drawn from previous High Court cases, about the nature of contempt proceedings:^[17]

• All proceedings for contempt must now realistically be seen as criminal in nature.

• Not all contempts are criminal.

• A failure to obey an injunction [court order] is not a criminal contempt unless the failure to comply is defiant or contumacious.

• A proceeding for contempt is not a proceeding for criminal contempt if the proceeding appears clearly to be remedial or coercive in nature as opposed to punitive.

• A criminal contempt is a common law offence, albeit not part of the ordinary common law.

• Even a proceeding for criminal contempt is not a criminal proceeding.

• Although proceedings for contempt of court are civil proceedings, some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt.

3.26 Even if each of these statements of principle is accepted as settled law, there is still residual procedural uncertainty, especially about which of the procedural safeguards traditionally available to an accused facing a serious criminal charge can also be invoked by an alleged contemnor.^[18]

3.27 CFMEU v Boral was an appeal from part of the Victorian Court of Appeal’s judgment in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (CFMEU v Grocon).^[19] In that case, the Court of Appeal had noted the difficulty that courts have faced in determining what statutory procedures apply to contempt proceedings when the question so often turns on fitting those proceedings within a dichotomy that consists only of ‘civil’ and ‘criminal’ proceedings.^[20]

3.28 The Victorian Court of Appeal noted that particular ambiguity is created by the need to co-opt language from other contexts in order to describe contempt proceedings, which are otherwise unique:

‘the discourse with respect to contempt is littered with language — we have set out some of it at [126] above^[21] — which is imprecise and potentially confusing. No doubt that reflects the peculiar nature of contempt. The application of that language to a particular statutory context is, we consider, a fraught task. It is made more difficult still where the available statutory choice is between ‘civil proceedings’ and ‘criminal proceedings … for an offence’.^[22]

3.29 The Victorian Court of Appeal outlined several examples of how contempt proceedings, because of their peculiar nature, have presented procedural questions for determination, such as:

• whether the rule against duplicity applies to the formulation of a contempt of court charge^[23]

• whether the principle in Jones v Dunkel applies in contempt proceedings^[24]

• whether and under what statutory regime an appeal from a final or interlocutory decision is available in contempt proceedings^[25]

• whether the Evidence Act 2008 (Vic) applies to contempt proceedings as though the proceedings were criminal proceedings^[26]

• whether contumacy must be pleaded in a charge seeking punishment for a contempt arising from breach of an order or undertaking^[27]

• whether and in what circumstances discovery under civil procedure rules is available against an alleged contemnor.^[28]

3.30 The High Court, in CFMEU v Boral, affirmed the decision of the Victorian Court of Appeal in CFMEU v Grocon with respect to the last of these matters.^[29] However, the broader observations of the Court of Appeal about the unique nature of contempt proceedings and the resultant procedural uncertainties remain pertinent.

3.31 In that context, consideration must be given to whether the current procedure guarantees an alleged contemnor, faced with the serious prospect of imprisonment and/or a fine, a fair process.

Question

3 Should the procedure for filing and prosecuting a charge of contempt of court be the same as for other criminal offences? If not, what are the reasons necessitating a different procedure for contempt of court and what should be the features of that procedure?

Possible reforms

3.32 The following chapters pose questions about the appropriateness of the current procedures for contempt proceedings in the context of specific manifestations of contempt. The issue of whether and how those procedures should be reformed and replaced by statutory provisions is discussed in light of the different circumstances in which particular types of contempt occur and the different purposes for which those contempts are punished.

Overlap with criminal law

3.33 Increasingly, conduct which may constitute contempt of court is also criminalised under specific statutory offence provisions. These provisions provide greater clarity and certainty about the type of conduct which will attract criminal sanction and the penalty that will apply. However, these provisions do not necessarily oust the broader contempt jurisdiction of the court. This adds to the potential confusion and complexity of this area of law.

3.34 There are also several common law offences which overlap and have a strong correlation with the law of contempt, such as the offence of embracery, attempting to pervert the course of justice, and perverting the course of justice. The existence of these offences is recognised by section 320 of the Crimes Act 1958 (Vic), the purpose of which is to provide statutory penalties for some (but not all) common law offences.

3.35 Chapters 4 and 5 of this consultation paper list a number of statutory offences in the Crimes Act, Juries Act 2000 (Vic), Summary Offences Act 1966 (Vic) and Court Security Act 1980 (Vic) that criminalise behaviour which is also punishable as a contempt in the face of the court or juror contempt.

3.36 However, the overlap is not confined to these manifestations of contempt. For example, in relation to contempt by interference with people who have particular roles or responsibilities in court proceedings, the Australian Law Reform Commission found that:

In any case involving pressure or inducement brought to bear on a participant in proceedings (other than a party), the likelihood that the relevant conduct will be both an instance of contempt and a criminal offence (at common law or under statute) is very high indeed.^[30]

3.37 Good examples of this overlap with interference contempt from Victorian legislation are:

• section 257 of the Crimes Act under which it is an offence, punishable by 10 years imprisonment, to intimidate or to cause physical harm or detriment to a person (the victim) because of their involvement in a criminal investigation or a criminal proceeding^[31]

• section 52A of the Summary Offences Act under which it is an offence punishable by 12 months imprisonment or a fine of 120 penalty units to ‘harass a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity’.^[32]

3.38 There is a common law maxim of statutory interpretation, generalia specialibus non derogant, which presumes that ‘general things or words do not derogate from special things or words’.^[33] The maxim was explained by Justice Deane in Refrigerated Express Lines (A/Asia) v Australian Meat and Livestock Corporation^[34] as follows:

As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. … Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.^[35]

3.39 This maxim is usually applied by courts to determine the interaction between two potentially applicable statutory offence provisions. It may be that this maxim has application in determining the interaction between a specific statutory offence provision and a more general common law offence, like contempt of court. Another view is that the principle of legality operates to provide that only express words in a statute can abrogate the inherent jurisdiction of the Supreme Court to punish for contempt. Regardless of which principle or maxim is relied on, the policy effect is the same; that where for the same conduct there is both a statutory provision with a clear offence and a common law offence there should be a clear preference for invoking the statutory provision.

3.40 In the English case Solicitor-General v Cox,^[36] two people were punished for contempt of court for taking photographs in court and publishing them online. The same conduct could also have been prosecuted under a specific statutory offence provision which criminalised conduct of that kind. The Court did not refer to the maxim generalia specialibus non derogant but held:

The fact that taking photographs in court and publishing them are criminal offences, does not prevent those acts being punishable as contempts of court as, for the reasons we have given, these actions pose serious risks to and interfere with the due administration of justice: the court obviously has power, as it needs, to deal immediately with anyone seen taking photographs, in order to maintain control over its proceedings, and to avoid it standing powerless while the law designed to protect the administration of justice is broken before it. … Whilst the later publication of such photographs may not be a contempt in the face of the court, it is still a contempt, quite apart from the fact that it is a criminal offence, since publication for a variety of reasons may be the very purpose behind the taking of the photograph illegally. While a summary criminal charge may be the appropriate response to some illegal photography, there are other cases in which it will not be and needs either swifter or more condign action by the court to uphold the due administration of justice; this was such a case. It clearly required the Attorney General to bring proceedings for contempt, taking into account the gravity of the risks and of the interference with the due administration of justice.^[37]

Possible reforms

3.41 The intersection between statutory and common law offences and the courts’ power to punish for contempt provides options for dealing with an alleged contempt. This in turn gives rise to the risk of inconsistency and unfairness. A person charged under a statutory offence provision or with a common law criminal offence will have the benefit of all the procedural safeguards which ordinarily apply to criminal proceedings. However, a person who is dealt with for the same behaviour under the common law of contempt will not have the benefit of some of those safeguards. For example, the offence will not be subject to a maximum penalty and will not be tried before a jury.

3.42 However, there is limited guidance on when a person should be prosecuted for a statutory or common law offence, or dealt with under the law of contempt. Where the contempt occurs in the face of the court, the path which is adopted appears to be largely a matter for the discretion of the presiding judicial officer.

Question

4 Is there a need for statutory guidance on when the court may exercise its power to punish for contempt of court in circumstances where the conduct is also a statutory offence? If so, what guidance should be provided?

Penalties

3.43 Statutory limits are placed on the penalties that the Magistrates’ Court,^[38] Children’s Court^[39] and Coroners Court^[40] may impose for contempt of court. There is no statutory limit on the maximum penalty that may be imposed for contempt of court by the County or Supreme Courts.^[41] Contempt of court is a common law offence and so, unless statute provides otherwise, the penalty is at large.^[42]

3.44 Punishment for contempt in the County and Supreme Courts is regulated by Part 4, Order 75 of the General Civil Procedure Rules.

3.45 In prescribing the penalties available for contempt, the General Civil Procedure Rules do not distinguish between types of contempt. The Rules afford the court considerable discretion to determine whether a punishment should be imposed for contempt and what form it should take. For example:

• Where the court finds a person guilty of contempt of court, the court may punish the contempt by committal to prison or fine or both.^[43]

• Where the contemnor is a corporation, the court may punish for contempt by sequestration or fine or both.^[44]

• Where the court imposes a fine, it may commit, or further commit, the contemnor to prison until the fine is paid.^[45]

• The court may make an order for punishment on terms, including a suspension of punishment.^[46]

• Where a person has been sentenced to a term of imprisonment for contempt, the court retains the discretion to order their discharge before the end of the term.^[47]

3.46 With respect to determining the sentence in any particular case, the Supreme Court has indicated that there is ‘little assistance is to be had … by a minute comparison between the penalties imposed in other cases’ because ‘the circumstances are infinitely variable as is the impact of different contempts upon the court process’.^[48]

3.47 However, in sentencing appeals, superior courts do give consideration to sentences imposed in comparable contempt cases as one yardstick for evaluating the sentence under review.^[49]

3.48 The Supreme Court has stated that it is clear that the penalty for serious contempts may be substantial.^[50] Nonetheless, it is widely accepted that the court should impose a term of imprisonment as a disciplinary sanction only in the most serious contempt cases and only as a sentence of last resort.^[51]

Apologies

3.49 The courts also have a discretion not to impose a penalty for contempt— even where the court is satisfied that a contempt has been committed.^[52] A sincere and prompt apology proffered by the contemnor may be particularly relevant to the court’s decision to exercise this discretion.

3.50 Apologies can play an important role in contempt proceedings. An apology may not only mitigate the punishment imposed,^[53] it may be regarded as ‘purging’ the contempt so that it is no longer necessary to impose any penalty or even commence contempt proceedings.^[54]

3.51 Both the Magistrates’ Court Act and the Coroners Act specifically provide that the court may accept an apology given for a contempt and decide to reduce or forego any punishment accordingly.^[55]

Sentencing Act 1991 (Vic)

3.52 It is uncertain and has not been clearly resolved by the courts whether and what provisions of the Sentencing Act 1991 (Vic) are relevant to contempt proceedings, and on what legal basis.^[56] Section 1 of the Sentencing Act provides that the purpose of the Act is to have within the one Act all general provisions dealing with the powers of courts to sentence offenders. However the Act does not state clearly that it applies only to “criminal offences” and the terms “offence” and “crime” are not defined, although the Act does define offences as “category 1” and “category 2” offences.^[57]

3.53 Victorian courts often have regard to the Sentencing Act when imposing a punishment for contempt. For example, courts have held that the following provisions of the Sentencing Act are relevant to sentencing in contempt proceedings:

• If a person is guilty of an offence, the court may order the person to pay a fine, with or without recording a conviction (section 7(1)(f)).^[58]

• In exercising its discretion over whether or not to record a conviction, the court must have regard to all the circumstances of the case (section 8(1)).^[59]

• The court must not impose a custodial sentence where a non-custodial sentence would achieve the purposes for which the sentence is imposed (section 5(4)).^[60]

3.54 Other provisions of the Sentencing Act that have been relied upon in contempt proceedings include:

• fixing of non-parole periods (sections 11 to 14)^[61]

• order of service of sentences (section 15)^[62]

• whether sentences are concurrent or cumulative (section 16).^[63]

3.55 However, the precise relevance of the Sentencing Act to the imposition of punishment in contempt proceedings is unclear. The balance of case law suggests that the Sentencing Act does not apply directly to contempt proceedings but that the Act is relevant by way of analogy and that courts should approach the question of penalty for criminal contempt, as far as possible, in a way which is consistent with that adopted when dealing with criminal conduct generally.^[64]

Questions

5 Should there be a statutory maximum penalty for contempt of court? If so:

What penalties should apply?

Should different penalties apply for different manifestations of contempt?

6 What weight, if any, should be given to apologies in determining whether and what penalty is imposed for contempt of court?

7 Should the Sentencing Act 1991 (Vic) apply to contempt proceedings?

Warnings

3.56 Contempt warnings play an important, although informal, role in addressing perceived or potential interferences with the proper administration of justice.

3.57 The term ‘contempt warnings’ is used here to refer to warnings given by a judicial officer in two different contexts:

• a warning given to a person that they are engaging in or are proposing to engage in conduct that the judicial officer considers might constitute contempt of court and for which, if they do not desist, they might be punished

• a warning given to a person that the judicial officer has formed a preliminary view that they have committed a contempt of court and that, subject to any submissions made, they may be dealt with for contempt of court.

3.58 Contempt warnings assist the courts to navigate the space between two competing imperatives:

a) The power to punish for contempt is an important one that the courts must be able to employ to safeguard and defend the proper administration of justice against interference.^[65]

b) The power to punish for contempt is to be used sparingly and should be invoked only when necessary.^[66]

3.59 Contempt warnings allow the courts to assert their authority without actual recourse to their considerable punitive powers.

3.60 The use of contempt warnings demonstrates the highly discretionary nature of the courts’ contempt power. However, because contempt warnings do not represent a formal procedural step, they may also give rise to procedural uncertainty and even, in some circumstances, procedural unfairness.

Pre-emptive warnings

3.61 Giving a person a pre-emptive warning that if they do not cease certain conduct they might be punished for contempt of court serves a number of useful purposes.

3.62 The offence of contempt of court is broad and ill-defined. In this uncertain context, a judicial warning operates to put a person clearly on notice that their conduct, if persisted in, may expose them to criminal sanction.

3.63 In relation to contempts in the face of the court, the use of a warning acts as a reminder that the court possesses the power to punish for contempt and this may suffice to establish or confirm the authority of the court and address any disruption to proceedings.

3.64 This was recognised by the New Zealand Law Commission in its review of the law of contempt. The Commission noted:

People do not expect judges to hold someone in contempt of court for low level interruptions. Most everyday low-level interruptions are and should be able to be managed by other means. In some situations, the judge may be able to deal with the disruptive behaviour with a warning or by taking a short adjournment. Indeed, sometimes the threat of contempt is enough to allow the judge to retain or regain authority over his or her court.^[67]

3.65 The Australian Law Reform Commission also acknowledged a role for warnings in dealing with contempt in the face of the court and noted that frequently a judge’s power to issue a warning is ‘effective against disruption, and a prosecution, with all its disadvantages in terms of expense and use of court time, is averted’.^[68]

Use of pre-emptive contempt warnings

3.66 Notwithstanding the recognised usefulness of contempt warnings, there is potential for them to be used improperly. For example, a judicial officer may use a contempt warning to pressure a person appearing before the court to abandon an application, submission or line of argument that the presiding judicial officer has pre-emptively determined is without merit.^[69] Given that issuing a warning does not involve the exercise of a power and does not generate a court order or judgment, the improper use of contempt warnings will not necessarily be exposed to scrutiny.

3.67 In Magistrates Court of Victoria (Heidelberg) v Robinson a contempt warning was issued against a solicitor in response to an application that the presiding magistrate disqualify himself.

3.68 On review, Justice Brooking in the Victorian Court of Appeal stated:

The magistrate behaved like a bully and, worst of all, threatened the solicitor with instant committal for contempt of court if he persisted in his application. What Martin, J. once called the immensity of the power to commit makes the abuse of that power in the present case deplorable … He refused to hear a party, and moreover in a criminal proceeding, and did so by using his contempt power as an instrument of oppression.^[70]

3.69 Justice Charles also noted that a ‘threat to deal with an advocate for contempt is very serious matter’ and that it is particularly important that the power to punish for contempt ‘not be misused to prevent an advocate in good faith making proper submission to a court’.^[71]

Pre-emptive warnings cannot substitute for a charge

3.70 In practice, warnings are often issued in the course of proceedings as events are unfolding. Issuing a warning is not a formal procedural step and the warning may be given in general terms without precisely identifying the conduct alleged to constitute a possible contempt of court. After a warning is given, the proceeding may continue, the impugned conduct may cease for a period and then resume or it may change in nature but continue to disrupt the proceeding.

3.71 There is a risk that where a presiding judicial officer proceeds to deal with a person for contempt in circumstances where they have already issued a warning, they may regard the earlier warning as a substitute for a formal articulation of the charge.

3.72 In Coward v Stapleton,^[72] the High Court explained that ‘no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him’. This was described by the High Court as a matter of ‘elementary justice’.^[73]

3.73 The role of warnings was considered by the Victorian Court of Appeal in DPP v Green.^[74] In that case the DPP made submissions to the effect that:

a failure to lay a charge can be remedied by the giving of a warning in advance (for example, that a refusal to answer carries a risk of contempt) so that if the conduct against which the warning has been given occurs, or is repeated, the laying of a charge is redundant and need not occur at all or only as a preliminary step before determining an appropriate penalty. On the DPP’s approach, a warning is to be treated as tantamount to a charge depending on the circumstances.^[75]

3.74 Justice Tate, with whom Justices Whelan and Kaye agreed, did not accept this submission and stated:

without a formal charge there is a real risk of uncertainty attaching to the process, an uncertainty that taints the proceeding and the administration of criminal justice more generally.^[76]

Show cause warnings

3.75 The second context in which contempt warnings are given is where the court forms a view that a contempt of court may have been committed, and the alleged contemnor is asked to show cause why a contempt proceeding should not be initiated.^[77]

3.76 By affording an alleged contemnor an opportunity to be heard before deciding whether to deal with or refer them for contempt, the court will be in a better position to make a decision about how to exercise its discretion.

3.77 However, for an alleged contemnor, a contempt warning that is framed as an exercise in procedural fairness, can potentially be quite fraught. It may require them, at a stage where no clear charge has been formulated, to risk incriminating themselves^[78] and to decide upon and commit to a de facto plea or defence.

3.78 The amorphous nature of criminal contempt adds to the challenge of responding to a show cause contempt warning. To establish a charge of contempt, it is not necessary to prove either an intent to interfere with the administration of justice or actual interference with the administration of justice. Therefore, it will not help to rebut a contempt allegation to submit that the alleged contemnor’s conduct was not intended to interfere with the administration of justice or did not result in any such an interference. Such a submission may actually constitute an admission.

3.79 At the same time, the court’s discretion to decline to exercise its contempt jurisdiction is absolute and may well be influenced by a submission that an alleged contemnor lacked intent, especially if the submission is accompanied by an apology.^[79] Therefore there is significant impetus for an alleged contemnor to engage with the show cause process and accept any allegation of contempt made by the court and to apologise.

3.80 The added impetus for an alleged contemnor to respond in this way is that failure to promptly acknowledge the court’s concerns and apologise may, if the contempt is subsequently proven, be looked upon unfavourably by the court in determining whether to impose a penalty and if so, what penalty.^[80]

The case of Besim

3.81 The Victorian Court of Appeal case DPP (Cth) v Besim; DPP (Cth) v MHK^[81] (Besim) illustrates how show cause contempt warnings can be used in practice.

3.82 In that case, the Court of Appeal was considering appeals against sentence brought by the Commonwealth Director of Public Prosecutions in two terrorism cases. While the Court’s decision was still reserved, The Australian newspaper published an article titled ‘Judiciary Light on Terrorism’ which related to the sentencing appeal and included statements attributed to three federal ministers.^[82] The Court was concerned that, among other things, the newspaper article and in particular the ministers’ statements:

• were impermissible at law and improperly made in an attempt to influence the Court in its decision^[83]

• purported to scandalise the court^[84]

• on their face, breached the principle of sub judice.^[85]

3.83 The Court wrote to the possible contemnors and gave notice that it required the individuals or their legal representatives to appear and make any submissions as to why they should not be referred for prosecution for contempt.^[86]

3.84 A mention hearing was convened for this purpose. The Court described the purpose of the hearing as follows:

This morning is not an occasion to debate whether the court’s concerns are justified at law. That is, it is not to debate whether contempt has been committed. That may be for another court to determine. Rather, it is an opportunity for those involved to inform the court of any relevant matters they wish before we determine whether to refer the publication for prosecution for contempt of court.^[87]

3.85 At the hearing, counsel for The Australian newspaper parties informed the Court that his clients apologised for and retracted the publication ‘sincerely and fully’.^[88]

3.86 The ministers admitted making the statements, but denied any intent to:

• undermine public confidence in the judiciary

• suggest or imply that the Court would not apply the law in disposing of the matters before it

• pressure the Court in relation to the manner in which it disposed of the appeal concerning Mr Besim.^[89]

3.87 They expressed regret that they had used language that was capable of conveying that meaning when no such meaning was intended, but initially no apology was given.^[90]

3.88 After the submissions were made, the Court reserved its decision. In the interim the ministers changed their position, the matter was relisted and the Solicitor-General made a full and unqualified apology for the statements on behalf of the ministers and retracted the statements in their entirety.^[91]

3.89 The Court then issued a ruling in which it stated that but for those apologies and retractions, the parties would have been referred to the Prothonotary of the Supreme Court for prosecution for contempt.^[92]

3.90 The ruling of the Court of Appeal stated that the Court had formed the view that there was a ‘strong prima facie case’ against the ministers^[93] and that, in the case of The Australian newspaper parties, the Court was satisfied that there was ‘a prima facie, serious breach of sub judice’.^[94]

3.91 However, the Court’s ruling also indicates that the respondents were able to avoid referral to the Prothonotary only by acknowledging, apologising for and ‘purging’ their contempt, which although never charged, was assumed to have been committed. For example, the Court stated:

• ‘The Court accepts The Australian parties’ full apology. It is sufficient acceptance by them of their contempt of Court and sufficient purging of the contempt.’^[95]

• ‘The Court accepts that the Ministers have sufficiently acknowledged and accepted their contempt of Court and sufficiently purged their contempt.’^[96]

• ‘On one view, it has only been after the stern discussion with the bench and commentary in the media that the Ministers have made their apologies and retractions. This delay is most regrettable and aggravated the contempt.’^[97]

3.92 Former Justice of the High Court Dyson Heydon considered the above statements and noted:

The language of the Court even as it decided that there would be no prosecution for the contempt left the impression that the Ministers and the newspaper had been guilty of contempt despite the absence of the usual safeguards which a prosecution for that crime afforded.^[98]

3.93 The way Besim proceeded and was resolved suggests that the different stages of contempt proceedings are not always distinct and are sometimes collapsed into a more global discretionary exercise.^[99] Whether there is a prima facie contempt, whether contempt proceedings should be commenced, whether the contempt is proven and whether the contempt should be punished are questions which are not always approached discretely and sequentially.

3.94 The result for an alleged contemnor faced with a show cause warning can be that, before a clear charge has been articulated and any evidence presented, they may be required to simultaneously try to defend the charge of contempt, make an admission and put a plea in mitigation.

Decision to charge and prosecute

3.95 The decision-making process undertaken by the court in determining whether and how to deal with a contempt is not unique. It is comparable to the process that the police or the DPP may respectively undertake in determining whether to file a charge or proceed with the prosecution, on indictment, of an offence. Both the police and the DPP have discretion not to proceed with charging or prosecuting an offender notwithstanding that there is sufficient evidence to indicate that an offence has been committed and that there are reasonable prospects of securing a conviction. Both the police and the DPP may receive submissions from alleged offenders before exercising that discretion.

3.96 On that analysis, it is possible to interpret the processes followed by the judicial officer in a contempt matter as being broadly analogous with the prosecutorial discretion processes followed by the police or the DPP, which may quite properly include a finding or conclusion that an offence has technically been committed, but that in the exercise of the prosecutorial discretion, an actual prosecution should not be instituted.

3.97 However, there are also important differences in these decision-making processes. First, the nature and extent of the discretion which is being exercised by the police or the DPP is clear. Both agencies are only tasked with the decision whether to file a charge or to prosecute on indictment. Given their comparatively limited mandates, there can be no confusion that they are determining whether a charge is proven or whether a penalty should be imposed.

3.98 There is also a policy framework within which the police and the DPP exercise their discretion. For example, the Policy of the Director of Public Prosecutions for Victoria provides that, if there is a reasonable prospect of conviction, the prosecution must proceed unless there are public interest factors tending against prosecution which outweigh those tending in favour.^[100] The Policy then lists the relevant public interest factors. An alleged offender therefore has notice of the criteria which will govern the exercise of the discretion.

Questions

8 In what circumstances do the courts give warnings for contempt?

9 When should contempt warnings be given?

10 Is there a need for guidance to the courts on the use of contempt warnings? If so, should such guidance be set out in statutory provisions?

11 Is there a need for greater clarity as to whether, when a court gives a contempt warning, there has been a finding that a contempt has in fact been committed and, if so, the status or effect of such a finding?

Possible reforms

3.99 Contempt warnings play a significant role in determining when and how courts exercise their discretion to punish for contempt of court. However, the use of contempt warnings is governed more by informal convention than established procedural rules.

3.100 In that context, the Commission seeks the views of the courts, legal profession, court users, media and the community on whether there is sufficient transparency, clarity and consistency surrounding the use contempt warning in contempt proceedings.

1. Encyclopaedic Australian Legal Dictionary, (Web Page, 9 April 2019) ‘sui generis’.

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2. Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, 257.

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3. Re Dunn [1906] VLR 493, 497.

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4. See, eg, R v Vasiliou [2012] VSC 216 [13]–[20]; R v Slaveski [2011] VSC 643 [17]–[20]; R v The Age Co Ltd [2006] VSC 479 [15]; DPP (Vic) v Johnson [2002] VSC 583 [7]–[9]; DPP v Johnson & Yahoo!7 [2016] VSC 699 [24]. In some cases, particularly those involving contempt by publication, the requisite tendency has been described as ‘a real and definite tendency as a matter of practical reality’ to interfere with the administration of justice.

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5. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 561.

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6. R v Douglass (No 3) [2018] NSWSC 1939 [2].

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7. Ibid [1], [8].

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8. Ibid [9]–[12].

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9. Ibid [15].

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10. Ibid [18]–[19].

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11. Ibid [21]–[23].

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12. Dietrich v R (1992) 177 CLR 292, 298–9 (Mason CJ and McHugh J) (citations omitted).

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13. County Court Civil Procedure Rules 2018 (Vic) Order 75; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 75.

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14. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375.

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15. Ibid, 389–390.

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16. Ibid, 386.

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17. Ibid, 395–6 (citations ommitted).

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18. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 582. It should be noted that the Court of Appeal expressed this uncertainty as existing ‘before X7 and Lee’. However, later in their judgment, the Court of Appeal concluded that, at least for the purposes of the procedural questions before them, the law had not been relevantly changed or clarified by the X7 or Lee cases—see [341]–[350].

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19. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527.

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20. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 575,577.

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21. ‘offence’, ’offence of a criminal character’, ‘criminal proceeding’, ‘criminal prosecution’, ‘criminal proceedings for an offence’ and ‘prosecution of an offence’ : Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527,561 [126].

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22. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 581.

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23. Ibid 582–583. This rule prohibits the prosecution alleging two or more offences in a single charge on a charge-sheet or indictment. The case law indicates that the rule does not strictly apply to contempt proceedings.

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24. Ibid 583. This principle provides that the unexplained failure of a party to call certain evidence may lead to an inference that the evidence would not have helped that party.

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25. Ibid 572–574

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26. Ibid 630–631.

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27. Ibid 584–600

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28. Ibid 634–639.

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29. The High Court held that, because the General Civil Procedure Rules apply to contempt proceedings commenced under Order 75, discovery could be ordered against a respondent in such proceedings, or at the very least could be ordered against a corporate respondent in contempt proceedings brought by a private party and arising from the breach of an order made in civil proceedings.

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30. The Law Reform Commission, Contempt (Report No 35, 1987) 103 [186].

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31. Crimes Act 1958 (Vic) s 257(1).

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32. Summary Offences Act 1966 (Vic) s 52A. See, eg, DPP (Vic) v Kelly [2013] VCC 2030; R v McLachlan [1998] 2 VR 55, 59.

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33. Encyclopaedic Australian Legal Dictionary, (Web Page, 9 April 2019) ‘generalia specialibus non derogant’.

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34. Refrigerated Express Lines (A/Asia) v Australian Meat and Livestock Corporation (1980) 29 ALR 333.

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35. Ibid 347.

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36. Solicitor-General v Cox [2016] 2 Cr App R 15 193.

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37. Ibid 202.

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38. Magistrates’ Court Act 1989 (Vic) s 133(4). A person found guilty of contempt in the face of the court may be sentenced to imprisonment for up to six months, and fined up to 25 penalty units. Magistrates’ Court Act 1989 (Vic) s 134(3). A witness found guilty of failing to answer a summons, refusing to be sworn or affirmed, refusing to answer lawful questions, or refusing to follow a direction may be sentenced to imprisonment for up to one month or fined up to five penalty units.

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39. Children, Youth and Families Act 2005 (Vic) s 528. The Children’s Court has the same powers to punish for contempt as the Magistrates’ Court but a person under the age of 18 cannot be committed to prison for contempt, they may be committed to a youth justice or a youth residential centre instead.

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40. Coroners Act 2008 (Vic) s 103(7)(a). A person found guilty of contempt under section 103 of the Coroners Act may be sentenced to a term of imprisonment of no more than 12 months or fined up to 120 penalty units.

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41. DPP (Vic) v Johnson [2002] VSC 583 [56].

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42. Allen v R (2013) 36 VR 565, 574. The Crimes Act 1958 (Vic) s 320 lists the maximum term of imprisonment for certain common law offences but the offence of contempt of court is not included on this list.

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43. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1); County Court Civil Procedure Rules 2018 (Vic) r 75.11(1).

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44. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(2); County Court Civil Procedure Rules 2018 (Vic) r 75.11(2).

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45. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(3); County Court Civil Procedure Rules 2018 (Vic) r 75.11(3).

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46. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(4); County Court Civil Procedure Rules 2018 (Vic) r 75.11(4).

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47. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.12; County Court Civil Procedure Rules 2018 (Vic) r 75.12. See also Magistrates’ Court Act 1989 (Vic) s 133(5).

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48. A-G (Vic) v Rich [1998] VSC 45 [13]; DPP (Vic) v Johnson [2002] VSC 583 [56].

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49. Allen v R (2013) 36 VR 565, 575; Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596.

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50. DPP (Vic) v Johnson [2002] VSC 583 [57].

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51. Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, 638–40.

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52. Re Perkins; Mesto v Galpin [1998] 4 VR 505, 512–513 (Brooking JA).

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53. See, eg, R v The Age Co Ltd [2008] VSC 305.

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54. See, eg, DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296.

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55. Magistrates’ Court Act 1989 (Vic) s 133(6); Coroners Act 2008 (Vic) s 103(9).

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56. Grocon v Construction, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288; [2014] VSC 134 [75]–[78].

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57. See Sentencing Act 1991 (Vic) s 3.

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58. R v The Herald & Weekly Times Pty Ltd [2008] VSC 251 [50].

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59. Ibid [50]–[51].

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60. R v Hinch (No 2) [2013] VSC 554 [44].

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61. DPP (Vic) v Johnson (2002) 6 VR 235, 237.

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62. Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1, 6.

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63. Law Institute of Victoria v Nagle [2005] VSC 47 [37].

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64. Grocon v Construction, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288; [2014] VSC 134 [77]–[78].

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65. See, eg, Morris v Crown Office [1970] 2 QB 114, 122 (Lord Denning).

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66. See, eg, Re Milburn (1946) SC 301, 315.

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67. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 59 [3.2].

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68. The Law Reform Commission, Contempt (Report No 35, 1987) 83 [140].

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69. Magistrates’ Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233.

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70. Ibid 241.

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71. Ibid 244.

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72. Coward v Stapleton (1953) 90 CLR 573, 579–80. See also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.03(a); Magistrates’ Court Act 1989 (Vic) ss 133(2), 134(2) which all require the alleged contemnor to be informed of the contempt with which they are charged.

    ↑

73. Coward v Stapleton (1953) 90 CLR 573, 580.

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74. DPP (Vic) v Green and Magistrates’ Court [2013] VSCA 78.

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75. DPP (Vic) v Green and Magistrates’ Court [2013] VSCA 78 [71].

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76. Ibid [72].

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77. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296.

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78. See Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459.

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79. See, eg, R v Douglass (No 3) [2018] NSWSC 1939.

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80. See R v Sammut [2008] VSC 189 [43]; DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45 [18]–[19] where an early apology was given but the contemnors went on to contest liability.

    ↑

81. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296.

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82. For a description of the facts leading up to the case, see Dyson Heydon, ‘Does Political Criticism of Judges Damage Judicial Independence?’ (Judicial Power Project Paper Policy Exchange, February 2018) 5–6.

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83. Supreme Court of Victoria, Statement of the Court of Appeal in Terrorism Cases (Web Page, 16 June 2017) <www.supremecourt.vic.gov.au/news/statement-of-the-court-of-appeal-in-terrorism-cases>.

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84. Ibid.

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85. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296, 298.

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86. Supreme Court of Victoria, Statement of the Court of Appeal in Terrorism Cases (Web Page, 16 June 2017) <www.supremecourt.vic.gov.au/news/statement-of-the-court-of-appeal-in-terrorism-cases>.

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87. Ibid.

    ↑

88. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296, 300.

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89. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296, 298–9.

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90. Ibid 299.

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91. Ibid 301.

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92. Ibid 302.

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93. Ibid 301.

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94. Ibid.

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95. Ibid.

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96. Ibid 301–02.

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97. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) (2017) 52 VR 296, 301.

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98. Dyson Heydon, ‘Does Political Criticism of Judges Damage Judicial Independence?’ (Judicial Power Project Paper Policy Exchange, February 2018) 13.

    ↑

99. See, eg, Re Perkins; Mesto v Galpin [1998] 4 VR 505.

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100. Office of Public Prosecutions Victoria (authorised by K Judd QC), ‘Policy of the Director of Public Prosecutions for Victoria’, (Policy, March 2019) 2.

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