Contempt of Court: Consultation Paper (html)

4. Contempt in the face of the court

Introduction

4.1 This chapter considers contempt in the face of the court. This form of contempt is concerned with behaviour in the courtroom, or in the vicinity of the courtroom, which interferes with or tends to interfere with the proper administration of justice.

4.2 All Victorian courts have inherent jurisdiction and/or jurisdiction conferred by statute to punish this manifestation of contempt of court.^[1] This power is one of the mechanisms that judicial officers use to control proceedings before them and, in particular, to address disruptive behaviour or refusals to comply with lawful directions.

4.3 The power of judicial officers to maintain order and authority in the courtroom, both in fact and appearance, is important to the efficient and fair conduct of proceedings and to public confidence in those proceedings.^[2] Maintaining order and authority in the courtroom is also important to ensuring that witnesses, jurors and others with duties to the court are able to perform those duties effectively and without fear or intimidation.^[3] However, if judicial officers exercise this power arbitrarily, because it is not subject to defined limits or the requirement to observe fair procedure, it cannot serve the proper administration of justice. On the contrary, it has the potential to jeopardise public confidence in the authority and integrity of the courts.

4.4 In that context, this chapter considers and poses questions about whether there is an appropriate balance between the need for flexibility and the need for certainty in defining what constitutes contempt in the face of the court. In particular, the chapter considers whether the offence of contempt in the face of the court should be replaced by statutory provisions and if so, whether it should encompass:

• conduct which is insulting or disrespectful but does not disrupt proceedings

• conduct which is already covered by other statutory criminal offences

• conduct which is not directly seen or heard by the presiding judicial officer.

4.5 This chapter also considers and poses questions about whether there is an appropriate balance between empowering the court to deal promptly and effectively with courtroom disruptions and the requirement to afford alleged contemnors a fair and consistent process. In particular, the chapter considers and poses questions about whether:

• the special summary procedure that may be adopted to deal with contempts committed in the face of the court should be reformed and replaced by statutory provisions

• measures are required to ensure a consistent approach between judicial officers to potential contempts

• the current law and procedure disproportionately or unfairly impact on particular groups.

Defining contempt in the face of the court

4.6 The power to punish for contempt in the face of the court is conferred by statute^[4] or regulated by court rules,^[5] but there is no exhaustive statutory definition as to what constitutes the offence. This remains a matter for the common law.

4.7 At common law, the essence of contempt in the face of the court is articulated in the same broad terms as criminal contempt more generally: ‘any action or inaction which interferes, or has a tendency to interfere, with the due administration of justice’.^[6]

4.8 The distinguishing feature of this category of contempt is that the conduct must occur

‘in the face of the court’, an expression described by Justice Kirby in European Bank
AG v Wentworth as ‘ambiguous and antique’.^[7]

4.9 Contempt in the face of the court ‘is an offence that can be committed in a multitude of ways’^[8]. Nonetheless, general categories of conduct which have been found to constitute contempt in the face of the court have been identified.^[9] These include:

• assaults or threats towards persons in court, including the presiding judicial officer, witnesses, jurors, counsel or other officers of the court^[10]

• insults or disrespectful behaviour directed towards the court, presiding judicial officer, witnesses, jurors, or other officers of the court, including swearing and insolent gestures^[11]

• disruptions to the course of proceedings, including by yelling or protesting, engaging in outbursts of anger or abuse, repeatedly interrupting, or refusing to sit or stand when directed to do so^[12]

• contempts by witnesses, including refusing without lawful excuse to be sworn or affirmed, refusing to answer a question or engaging in prevarication^[13]

• contempts by jurors, including refusing to be sworn or affirmed, impersonating a juror, attending court intoxicated or refusing to follow directions^[14]

• unauthorised recording of proceedings, by taking photographs, filming or otherwise recording in the courtroom^[15]

• contempts by legal practitioners.^[16]

4.10 The lack of precision in defining contempt in the face of the court allows the court the flexibility to respond to varied and changing circumstances. However, it also gives rise to a lack of clarity about the type of conduct which might attract punishment for contempt.

4.11 The Australian Law Reform Commission (ALRC) in its review of the law of contempt noted that the proper administration of justice generally requires that criminal offences be defined with sufficient precision to enable all people to understand what they are.^[17]

4.12 The lack of certainty and clarity about what conduct constitutes contempt in the face of the court conflicts with this principle.

4.13 In this context, the Law Reform Commission of Western Australia (WA Commission) has stated:

similar to other contempt offences, liability for contempt in the face of the court is currently based on the general concept of interference with the due administration of justice. Such a broad and potentially discretionary test can no longer be justified in light of contemporary demands to make the application of the law more certain and consistent.^[18]

4.14 The Law Reform Commission of Ireland (Irish Commission) has also noted that ‘the uncertainty of the law makes it difficult for persons to know what sort of conduct will place them in contempt and so arguably deprives them of standard due process rights’.^[19]

The need for statutory provisions

4.15 Both the WA Commission and the ALRC recommended the offence of contempt in the face of the court be replaced with statutory provisions.^[20]

4.16 The ALRC recommended that the substantive law of contempt in the face of the court should be replaced by a series of offences. The recommended replacement offences were:

• acting so as to cause substantial disruption of a hearing

• witness misconduct such as refusing to appear, to be sworn or make an affirmation or to answer a lawful question.^[21]

4.17 The ALRC recommended that an accused person should only be liable for the offence of ‘substantial disruption’ if they intended to disrupt the relevant proceedings or were recklessly indifferent as to whether the conduct in question would have this effect.^[22]

4.18 The offences that the WA Commission recommended should replace the existing law of contempt in the face of the court were broader in scope and encompassed:

• wilfully insulting the presiding judicial officer or officer of a court acting in the course of his or her official duties

• interrupting or disrupting proceedings of a court, not necessarily wilfully but without reasonable excuse

• witness misconduct such as refusing to be sworn or make an affirmation or to answer a lawful question.^[23]

4.19 In New Zealand, statutory provisions already define the type of disruptive courtroom behaviour that is punishable as contempt of court. The relevant provisions encompass:

• wilfully insulting a judge, witness or counsel during proceedings or where they are going to or from the court

• wilfully interrupting the proceedings of the court or otherwise misbehaving in court

• wilfully and without lawful excuse disobey[ing] any order or direction of the court in the course of the hearing of any proceedings.^[24]

4.20 In Victoria, the statutory provisions which confer contempt jurisdiction on the Coroners Court and the Victorian Civil and Administrative Tribunal also define the types of courtroom conduct liable to be punished as contempt of court,^[25] although neither provision is exhaustive.^[26] For example, section 103(1) of the Coroners Act 2008 (Vic) provides that a person is guilty of contempt of the Coroners Court if, among other things, the person:

• insults an officer of the Coroners Court while that officer is performing functions as an officer of the Coroners Court^[27]

• insults, obstructs or hinders a person attending an inquest^[28]

• misbehaves at or interrupts an inquest.^[29]

4.21 Section 134(1) of the Magistrates’ Court Act 1989 (Vic) also defines a number of contempt in the face of the court offences which relate specifically to witnesses. These include:

• refusing to be sworn or make an affirmation

• refusing to answer lawful questions

• wilfully disobeying an order to leave the Court and to remain beyond the hearing of the Court until required to give evidence

• wilful prevarication.

4.22 The recommendations and statutory provisions set out above demonstrate that, beyond the threshold question of whether there should be a statutory definition of contempt in the face of the court, there are a number of subsidiary questions to be considered. These include whether the offence should be limited to:

• conduct which is wilful^[30]

• conduct which is disruptive to proceedings^[31]

• conduct which is not already covered by other statutory criminal offences^[32]

• conduct which occurs in the courtroom and before the presiding judicial officer.

Questions

12 Is there a need to retain the law of contempt in the face of the court?

13 If the law of contempt in the face of the court is to be retained, should the common law be replaced by statutory provisions? If so, how should it be defined and what fault elements, if any, should be required?

4.23 The last three of these questions are discussed further below.

Insulting or disrespectful behaviour

4.24 If the offence of contempt in the face of the court is replaced by statutory provisions, the question arises whether it should encompass insulting and disrespectful behaviour or whether it should focus on behaviour which disrupts or hinders proceedings. This is an issue on which past reviews of the law of contempt have diverged.^[33]

4.25 Where a person insults or expresses a lack of respect for the court through words or conduct, this will not necessary disrupt or interfere with the proceedings. A person’s behaviour may challenge or fail to recognise the authority of the court without affecting the fair and efficient conduct of proceedings. An example of such behaviour might include a refusal to stand when the presiding judicial officer enters the room.

4.26 The ALRC recommended that the ‘fact that things said or done in a courtroom are disrespectful or insulting, or constitute an affront to the authority of the court in question or of courts generally, should not of itself be enough to attract criminal liability’.^[34] The ALRC noted that ‘criminal penalties are usually not an appropriate mechanism for attempting to maintain the dignity of a public institution such as a court, when nothing else but dignity is at stake’.^[35]

4.27 The ALRC explained that this did not mean that words or conduct which were insulting or offensive would never attract liability and suggested that, if persisted in, such words or conduct would most likely result in substantial disruption to proceedings and thus, on that basis, invite penalty.^[36]

4.28 However, more recently, both New South Wales and South Australia have adopted the opposite position and introduced statutory offences specifically criminalising disrespectful behaviour in the courtroom.^[37]

4.29 The statutory offence provisions introduced in New South Wales provide that an accused person, defendant, party to, or person called to give evidence in proceedings before the court is guilty of an offence if they intentionally engage in behaviour in the court during the proceedings and that behaviour is disrespectful to the court or presiding judge.^[38] Whether ‘behaviour’, which includes both an act and a failure to act, is disrespectful to the court is determined according to established court practice and convention.^[39] A judicial officer who opts not to deal with a person summarily for contempt can refer disrespectful behaviour in proceedings over which they have presided for prosecution. However, a prosecution may be commenced regardless of whether a referral has been received.^[40]

4.30 The South Australian provisions define disrespectful conduct to include refusing to stand up after being requested to do so by the court; using offensive or threatening language; and interfering with or undermining the authority, dignity or performance of the court.^[41] In South Australia, a person must first be warned by the court that their conduct may result in a charge.^[42] It is a defence to the charge if the person’s conduct was due to a cognitive impairment (including mental illness) or a physical disability.^[43] Likewise, a child cannot be charged.^[44]

Possible reforms

4.31 The ALRC’s recommendations when contrasted with the New South Wales and South Australian statutory offence provisions demonstrate that there is a broad spectrum of opinions on what the proper and effective administration of justice requires. Is it sufficient to ensure that the efficient and fair conduct of the court’s proceedings is not disrupted or interfered with? Alternatively, is there a need to preserve and vindicate the dignity and authority of the court even where there is no direct impact on the current proceedings?

4.32 Victoria has no statutory offence provisions equivalent to the legislation in New South Wales or South Australia discussed above.

4.33 It is not certain from case law where the line is drawn in Victoria. The courts have often emphasised that the contempt power ‘is rarely, if ever, exercised to vindicate the personal dignity of a judge’^[45] and does not serve to ‘assuage the injured feelings of the judicial officer’.^[46] Nonetheless, disrespectful or insulting conduct directed towards the judge may still be dealt with as contempt on the basis that it has the potential to diminish the authority of the court.^[47]

Question

14 If the law of contempt in the face of the court is to be replaced by statutory provisions, should insulting or disrespectful behaviour be included within the scope of the offence?

Defining ‘in the face of the court’

4.34 There is a divergence of views in case law about the meaning of the term ‘in the face of the court’ and its precise meaning remains unsettled at common law.^[48]

4.35 Determining the geographical and temporal boundaries of the offence of contempt in the face of the court is not merely a matter of academic classification—it has real practical implications.

4.36 The jurisdiction of the Magistrates’ Court to summarily punish a contempt under section 133 of the Magistrates’ Court Act is limited to contempts ‘committed in the face of the court’. Likewise, the County Court and Supreme Courts General Civil Procedure Rules provide for a judge to directly charge, try and punish a contempt themselves only where it is ‘committed in the face of the court’.^[49]

4.37 On one view, expressed in obiter by Justice Kirby in European Bank A-G v Wentworth, contempt ‘in the face of the court’ should be limited to conduct that is seen, heard or otherwise sensed by the judge.^[50] On that view, contempt in the face of the court would not, for example, include an alleged assault on a witness committed in the courtroom but after judgment had been delivered, the proceeding had been adjourned and the judge had left the room.^[51]

4.38 Justice Kirby noted a number of policy reasons for adopting this interpretation. In particular he noted that confining the expression in this way had the ‘appropriate’ result of limiting both the contempt jurisdiction of inferior courts and the availability of the special summary procedure to try and punish the contempt. He also noted that this approach ‘takes the summary procedure back to its historical origin where it was undoubtedly confined to things which the court actually saw, heard or otherwise sensed and did not need evidence precisely for that reason’.^[52]

4.39 The alternative view, expressed by Justice Moffitt in obiter in Registrar, Court of Appeal v Collins, is that contempt in the face of the court extends to conduct outside the courtroom which has not been directly heard or observed by the presiding judicial officer but which exhibits ‘such proximity in time and space between the conduct and the trial of the proceedings that the conduct provides a present confrontation to the trial then in progress’.^[53]

4.40 These are both New South Wales cases. The New South Wales legislation which regulates the courts’ jurisdiction to deal with contempt refers to contempt in the face or in the hearing of the court.^[54] The inclusion of these additional words, which do not appear in Victorian legislation, may mean that the New South Wales cases on this issue are distinguishable and need to be considered with some caution in Victoria.

4.41 The position in Victoria is equally unresolved. In the 1906 Victorian case Re Dunn,^[55] Justice Cussen remarked in obiter that approaching a juror in the corridors of the court and seeking to influence their verdict would constitute a serious contempt, but not a contempt in the face of the court.

4.42 Conversely, in a 1989 Supreme Court case, an employer who sent a letter to the Sheriff of the Supreme Court claiming, falsely, that his employee would be interstate when required for jury duty, was found to have committed a contempt in the face of the court.^[56]

Question

15 If the law of contempt in the face of the court is to be replaced by statutory provisions, should it be limited to conduct which is directly seen or heard by the presiding judicial officer? In other words, should the underlying test be whether the judicial officer can decide the contempt on the basis of their own observations, without the need to receive evidence from other witnesses?

4.43 The Commission has been unable to find any more recent Victorian authorities in which the expression ‘in the face of the court’ has been given detailed consideration.

Conduct covered by other criminal offences

4.44 Much of the conduct which is liable to be punished as a contempt in the face of the court under common law, can also be prosecuted under statutory offence provisions or as a common law criminal offence. For example:

• The Summary Offences Act 1966 (Vic) prescribes statutory offences which include wilfully damaging property;^[57] using profane, indecent or obscene language or threatening, abusive or insulting words;^[58] behaving in a riotous, indecent, offensive or insulting manner, including by exposing oneself;^[59] behaving in a disorderly manner;^[60] common assault;^[61] and harassing a witness.^[62]

• The Crimes Act 1958 (Vic) prescribes statutory offences which include threats to kill;^[63] threats to inflict serious injury;^[64] extortion with threat to kill;^[65] intimidating or causing harm or detriment to a person, including a witness or juror; because of their involvement in criminal proceedings;^[66] and perjury.^[67]

• The Juries Act 2000 (Vic) prescribes a number of statutory offences with which a juror might be charged, including refusal to be sworn or affirmed;^[68] failing to attend;^[69] failing to answer questions;^[70] and impersonating a juror.^[71]

• The Court Security Act 1980 (Vic) prescribes a statutory offence in relation to making a recording of a proceeding in circumstances not authorised by the Act.^[72]

• The Court Security Act 1980 (Vic) empowers an authorised officer to give a person who wishes to enter court premises, or is on the court premises, a reasonable direction to do or not do a thing, for the purpose of maintaining or restoring the security, good order or management of the court premises.^[73] The Act also prescribes a statutory offence in relation to refusing to comply with such a direction.^[74]

• The offences of attempting to pervert the course of justice, perverting the course of justice, embracery and perjury are indictable common law offences in Victoria, specifically recognised by the Crimes Act.^[75]

4.45 Where a person is charged under one of these statutory offence provisions or with a common law offence they are likely to have the benefit of greater procedural safeguards than a person who is dealt with for contempt, particularly under the special summary procedure. For example, they will receive a written charge or indictment which particularises the alleged offence, the offence will be subject to a maximum penalty, the offence will not be tried by the judicial officer before whom the alleged offence was committed, the ordinary rules of evidence will apply, they will have clearer rights of appeal and, if the offence is indictable, it may be tried before a jury.^[76]

4.46 Despite the differences in procedures and the interest the alleged offender may have in the matter being dealt with one way or the other, at present there is no statutory direction which determines, or even guides, whether a person is prosecuted for a statutory or common law offence, or dealt with, in the alternative, by way of the contempt procedure. The path which is adopted appears to be largely a matter for the discretion of the presiding judicial officer.^[77]

4.47 The common law maxim of statutory interpretation, generalia specialibus non derogant, states that ‘general things or words do not derogate from special things or words.’^[78] In practice, it means that a general statutory provision is presumed, unless otherwise indicated, not to interfere with or override a specific statutory provision. The maxim may have relevance to how the overlap between potentially applicable offences should be resolved. This maxim is discussed in Chapter 3 at [3.38]–[3.40].

Question

16 Should conduct covered by other criminal offences be excluded from any statutory offence of contempt in the face of the court?

The procedure for contempt in the face of the court

The special summary procedure

4.48 As with other forms of contempt, proceedings to punish contempt in the face of the court can be commenced in the Supreme or County Court by way of summons or originating motion under Part 3, Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 or the County Court Civil Procedure Rules 2018 (the General Civil Procedure Rules).

4.49 In addition, there is an alternative, more direct procedure that may be adopted only in cases of contempt in the face of the court. This procedure is set out in Part 2, Order 75 of the General Civil Procedure Rules and it is truly summary in nature. To distinguish it from the summary procedure adopted in general contempt proceedings, it is referred to in this chapter as the ‘special summary procedure’.

4.50 Under the special summary procedure, where it is alleged or appears to the court that a person is guilty of contempt committed in the face of the court, the court, of its own motion and without any formal proceedings being instituted, may:

• by oral order or arrest warrant have the contemnor brought before the court^[79]

• inform the contemnor either orally or in writing of the contempt with which they are charged^[80]

• order that the contemnor be kept in custody or be released on terms (including the giving of security), until the charge is finalised^[81]

• adopt thereafter such procedure as in the circumstances the court thinks fit to try the charge.^[82]

4.51 Sections 133(1)–(2)^[83] and 134(2)^[84] of the Magistrates’ Court Act prescribe the same special summary procedure to try contempts in the face of the court or witness contempts in the Magistrates’ Court.^[85]

4.52 The special summary procedure enables the court to deal with a contempt swiftly and decisively and allows the presiding judicial officer to effectively place themselves in the position of prosecutor, witness, jury and judge.^[86] The consequence is that the procedural safeguards adhered to in ordinary criminal proceedings are not expressly guaranteed.

4.53 Beyond providing the mechanism for a contemnor to be brought before the court, informed of the charge and if necessary detained, Part 2, Order 75 of the General Civil Procedure Rules and sections 133 and 134 of the Magistrates’ Court Act provide no further legislative guidance or limitations on the procedure to be adopted to determine the charge of contempt. This gap has been filled by the common law.

4.54 In Zukanovic v Magistrates’ Court of Victoria at Moorabbin (Zukanovic), Justice Forrest set out the steps that a fair hearing requires must be followed prior to determining a charge of contempt in the face of the court under section 133 of the Magistrates’ Court Act. These steps are a synthesis of earlier authorities, including the decisions of the High Court in Coward v Stapleton^[87] and Witham v Holloway.^[88] They provide:

• The charge must be set out orally or in writing, so that the contemnor understands the charge being laid against them.

• The contemnor must be afforded the opportunity to consider the charge, and if necessary, to seek further legal advice, an adjournment, or further particulars of the charge.

• The contemnor must be given the opportunity to plead guilty or not guilty to the charge.

• In the event the contemnor pleads not guilty, the contemnor must be given the opportunity to present evidence and make submissions relevant to the determination of the charge.

• The judicial officer must carefully consider all of the evidence before deciding whether the court is satisfied beyond reasonable doubt that the accused is guilty of the charge, while being mindful of the unusual position the judicial officer is in having assumed the role of witness, prosecutor and judge.^[89]

4.55 The decision of Justice Forrest was considered and approved by the Court of Appeal in Director of Public Prosecutions v Green.^[90] In that case Justice Tate noted, however, that the procedural steps set out in Zukanovic were not intended as ‘a set of rigid prescriptive rules that bore no capacity to adapt to the circumstances of the proceedings’.^[91]

4.56 Further, Justice Whelan added the qualifying remark:

this case and Zukanovic concern contempts governed by statutory provisions. The exercise of inherent jurisdiction to summarily deal with contempt may not necessarily be subject to the same requirements in every conceivable case.^[92]

4.57 Therefore, while the common law has supplied some content to the procedures to be observed by the court before summarily imposing a punishment for contempt in the face of the court, the court continues to reserve for itself a degree of flexibility.

4.58 Moreover, where the special summary procedure is adopted, the court has recognised that special measures may be permissible if circumstances demand their use. For example:

• The court may receive hearsay evidence.^[93]

• The presiding judicial officer may rely on his or her own observations of the alleged contemnor’s conduct.^[94]

• There is no requirement for sworn evidence.^[95]

• The right of the alleged contemnor to cross-examine witnesses against him or her may be restricted.^[96]

A power to be used sparingly

4.59 Given its unusual nature, this special summary procedure has been described in case law as an ‘exceptional and very significant power which should be exercised sparingly and with great caution’.^[97]

4.60 Superior courts have stated that this procedure should only be used:

• ‘in those exceptional cases where the conduct is such that it cannot wait to be punished because it is urgent and imperative to act immediately to preserve the integrity of a trial in progress or about to start’^[98]

• where the ‘swift resolution of comparatively simple and virtually indisputable fact situations’ call ‘for immediate action’.^[99]

4.61 Accordingly, superior courts have been critical of reliance on the special summary procedure where it was not evident that there was the requisite degree of urgency to justify its use.^[100] For example, in Allen v R,^[101] Justice Priest noted that there was no urgency or other circumstances requiring that a witness, who refused to be sworn or give evidence in a County Court trial, be tried for contempt promptly and by the judge presiding over the trial.^[102] Although no miscarriage of justice occurred in that case, Justice Priest noted that it would have been preferable to proceed to deal with the contempt by way of originating motion or summons.^[103]

4.62 However, while it is clear from the case law that the special summary procedure should be used sparingly, the courts have not abandoned its use nor suggested that this should occur. In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd, the Victorian Court of Appeal referred to Justice Priest’s remarks in Allen and emphasised that the facts of Allen were unusual and that ‘the case does not stand for any general proposition to the effect that the use of summary procedures should, if possible, be avoided’.^[104]

4.63 As a practical example, in Zukanovic, where the alleged contempt involved a defendant in the Magistrates’ Court blowing and then popping a bubble, the Supreme Court quashed the conviction on the grounds that the contemnor had not been afforded procedural fairness. However, as to the choice of procedure, Justice Forrest held:

it was appropriate for the Magistrate to deal with this matter himself and to exercise summary jurisdiction. It would appear that he was the only witness to the asserted contempt which was committed in the face of the Court. … Given that the Magistrate in this case was the only person who appears to have perceived the “popping” of the bubble gum, I think, out of necessity, it was reasonable for him to determine the charge himself.^[105]

Consistency with the proper administration of justice

4.64 The power to punish for contempt in the face of the court is intended to address and deter conduct that interferes with the proper and effective administration of justice. Therefore, the exercise of the power must be itself consistent with this principle.^[106]

4.65 The summary procedure to initiate and try contempts committed in the face of the court does not provide the procedural safeguards usually observed in criminal proceedings. One significant departure is the multiple roles played by the presiding judicial officer (prosecutor, witness, jury and judge) and the resultant potential for the proceedings to appear weighted against the alleged contemnor.^[107]

4.66 A further problem explained by Chief Justice Black in Clampett v Attorney-General of the Commonwealth of Australia is that:

Contempt in the face of the court is a criminal offence yet when a person is charged with such an offence in circumstances such as those in this case, the onus of proof is in effect reversed. Instead of a case for the prosecution being presented by a prosecutor and tested by or on behalf of the person accused in proceedings presided over by an independent judge or magistrate, in a case such as the present the accused stands charged and is required to justify or otherwise defend his or her conduct.^[108]

4.67 Given the unusual, and potentially unjust nature of the special summary power, Chief Justice Black warned:

If fundamental principles of justice are to be departed from it must surely be for the reason that, quite exceptionally, the broader interests of justice so require. Indeed, this consideration is so strong that if the same person were to act as prosecutor, witness and judge when the broader interests of justice did not manifestly so require, proceedings intended to uphold the authority of the court would be seen to diminish that authority so that the process would, at best, be self-defeating.^[109]

4.68 This raises the question of when, if ever, the proper administration of justice will require and justify the use of the special summary procedure.

4.69 Generally the case law suggests that the use of the special summary procedure is necessary and justified when it is urgent or imperative to act immediately to maintain the authority of the court, prevent disorder and to enable those with duties to the court to perform them free from fear.^[110]

4.70 However, while the proper administration of justice may require immediate action in response to and to deal with certain disruptive or obstructive conduct, it does not necessarily follow that the proper administration of justice will require that the conduct be subject to immediate punishment.^[111]

4.71 For example, judicial officers have other powers available to them to address disruptions to proceedings including removing the person or persons responsible for the disruption from the courtroom. Likewise, under the Court Security Act, authorised officers have powers which allow them to issue directions to people within the court premises and, in certain circumstances, to remove them from court premises.^[112]

Possible reforms

4.72 Given the potential for actual or perceived injustice in the use of the special summary procedure, recommendations for procedural reform have been made in other jurisdictions.^[113] These vary, in particular with respect to:

• whether and when the judicial officer before whom the contempt occurred is permitted to try the offence^[114]

• whether and when the process for dealing with a disruption in court is separated from the process of citing and trying the conduct alleged to constitute the offence.^[115]

4.73 For example, the ALRC recommended that summary trial by the presiding judge should be retained, but only where the accused consents.^[116] The WA Commission recommended that a contempt offence may be tried by the presiding judicial officer either where the alleged offender consents to that procedure, or where:

• the impugned conduct occurred in the presence of the judicial officer, and

• the judicial officer considers that the alleged contempt presents an immediate threat to the authority of the court or the integrity of the proceedings then in progress unless dealt with in a summary manner.^[117]

4.74 The WA Commission also recommended that statutory procedural safeguards should exist for the benefit of the accused.

4.75 The New Zealand Law Commission recommended a new statutory procedure for dealing with disruptive behaviour in the courtroom which would separate out the citation for disruptive behaviour and removal from the courtroom from the hearing and punishment of any charge. It was recommended that the new statutory provisions dealing with disruptive behaviour in the court should, among other things:

• authorise the judge to deal with the immediate disruption by citing the person for disrupting the court and, if necessary, ordering the person to be taken into the court cells until the rising of the court that day

• give the person the opportunity to exercise his or her right to consult and instruct a legal practitioner

• allow the person a reasonable opportunity to apologise to the court

• require the judge to review the matter before the rising of the court that day and decide whether he or she considers further punishment may be necessary by having the matter set down for determination

• if the matter is set down for determination, direct the judge to consider whether exceptional circumstances warrant a different judge hearing the case.^[118]

Question

17 Should the procedure for initiating, trying and punishing a charge of contempt in the face of the court be set out in statutory provisions? If so, what should the procedure be? In particular:

(a) Is there a need to preserve the power of the courts to deal with contempt in the face of the court summarily?

(b) Should the process for dealing with a disruption to proceedings be separated from the process for trying and punishing the disruptive behaviour?

(c) Who should try the offence? Should the offence be able to be tried by the judicial officer before whom the offence was committed?

A consistent approach to disruptive conduct

4.76 The offence of contempt in the face of the court intersects with other laws and powers. Often there will be multiple options for addressing conduct which might constitute contempt in the face of the court. The court has considerable discretion in choosing between these options based on its assessment of the seriousness of the conduct and the need for an immediate response. The path which is adopted has significant consequences for the alleged contemnor with respect to the potential liability that they are exposed to and the procedural safeguards which apply.^[119] However, there is no statutory guidance for the exercise of this discretion and no requirement for the presiding judicial officer to explain their choice to adopt a particular course. This may give rise to uncertainty and the potential for inconsistency and unfairness between cases involving similar conduct.

4.77 For example, the presiding judicial officer may:

• adjourn the proceedings to allow for a disruptive party to compose or remove themselves or reflect on their conduct

• determine that a warning or reprimand is sufficient^[120]

• accept an apology as sufficient to address the contempt and restore the authority of the court^[121]

• exercise their power to exclude a person from the court, and even to exclude the accused from the courtroom^[122]

• if the conduct involves a legal practitioner, refer the conduct to the Legal Services Commissioner for investigation

• refer the matter to the DPP or police to consider whether the person should be prosecuted for one of the statutory or common law offences discussed above at [4.44]

• refer the matter to the Prothonotory or Registrar and direct them to commence contempt proceedings to punish the contempt by way of originating motion or summons

Question

18 What measures, if any, are required to ensure there is a consistent approach by judicial officers to disruptive behaviour in the courtroom?

• adopt the special summary procedure to try and punish the contempt.

The impact on certain groups of people

4.78 The Commission is unaware of any empirical data on the number of proceedings commenced to punish for contempt in the face of the court, the procedure adopted and the penalties imposed, if any.

4.79 The Commission is also unaware of any empirical data on how often a contempt warning is issued in court proceedings by the presiding judicial officer as a means to secure greater cooperation and compliance from people in the courtroom regarded as disruptive or recalcitrant.^[123]

4.80 The variety of reported cases referred to in this chapter and media articles reporting on local court proceedings suggest that judicial officers do continue to use or threaten to use the power to punish for contempt in the face of the court to maintain order in proceedings and uphold the court’s authority.^[124]

4.81 The case law suggests that there may be some groups of people who are disproportionately more likely to be subject to proceedings for contempt in the face of the court or to be warned about the possibility of such proceedings, including self-represented litigants,^[125] and people who have mental health issues.^[126]

Question

19 Under the current law, does the actual or threatened use of the power to punish for contempt in the face of the court affect certain groups of people unfairly? If so, how should this be addressed?

4.82 In her study on the offence of contempt in the face of the court and its impact on people with mental health issues, Dr Suzie O’Toole identified a number of aspects of the law and procedure in this area which may be particularly disadvantageous to people with mental health issues.^[127]

1. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241–3, 254; Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117, 125, 137; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 75 Part 2; County Court Act 1958 (Vic) s 54; County Court Civil Procedure Rules 2018 (Vic) Order 75 Part 2; Magistrates’ Court Act 1989 (Vic) s 133, 134; Children, Youth and Families Act 2005 (Vic) s 528; Coroners Act 2008 (Vic) s 103.

   ↑

2. Keeley v Mr Justice Brooking (1979) 143 CLR 162, 170 (Barwick CJ).

   ↑

3. DPP (Vic) v Johnson [2002] VSC 583 [13].

   ↑

4. Magistrates’ Court Act 1989 (Vic) s 133; Children, Youth and Families Act 2005 (Vic) s 528.

   ↑

5. County Court Civil Procedure Rules 2018 (Vic) Order 75 Part 2; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 75 Part 2.

   ↑

6. Re Dunn [1906] VLR 493, 497; DPP (Vic) v Johnson [2002] VSC 583 [7]; R v Slaveski [2011] VSC 643 [17]–[20]; R v Vasiliou [2012] VSC 216 [13]–[15].

   ↑

7. European Bank A-G v Wentworth (1986) 5 NSWLR 445, 457.

   ↑

8. Allen v R (2013) 36 VR 565, 574.

   ↑

9. See, eg, LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt, ‘2 Criminal Contempt’ [105–30]; Judicial College of Victoria, Victorian Criminal Proceedings Manual (Web Page, 26 February 2018) [8.5] <www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>; Law Reform Commission of Western Australia, Contempt in the Face of the Court (Discussion Paper, Project No 93(I), August 2001) 5.

   ↑

10. See, eg, A-G (Vic) v Rich [1998] VSC 41, where an accused threatened to kill or seriously harm the prosecutor; DPP (Vic) v Johnson [2002] VSC 583 where an accused threw a bag of human excrement into the jury box hitting a juror and repeated, serious and graphic threats were made to harm a witness; R v Slaveski [2015] VSC 400, where the respondent made menacing threats to the magistrate to ‘go over your property’ and ‘come after your house’ if the magistrate ‘came after’ the respondent’s property.

    ↑

11. See, eg, R v Slaveski [2011] VSC 643, where a party to civil proceedings made repeated allegations of impropriety, partiality and corruption and other abusive statements against the presiding judge; DPP (Vic) v Johnson [2002] VSC 583, where a number of accused exposed themselves, made repeated, disruptive noises and crudely abused the presiding judge, a witness, and a member of counsel; Lewis v Ogden (1984) 153 CLR 682, where counsel for the accused was convicted for insulting the judge in his address to the jury by suggesting that the judge had shown a strong disposition to the prosecution case, although the conviction was overturned on appeal; Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] 32 VR 216, where the defendant was convicted for blowing and popping a bubble in court, although the conviciton was later quashed because of the magistrate’s failure to observe procedural fairness.

    ↑

12. See, eg, R v Slaveski [2011] VSC 643; R v Ogawa [2011] 2 Qd R 350, where a defendant interrupted proccedings by physically struggling with the correctional officers and screaming constantly and continually while in court; Re Perkins; Mesto v Galpin [1998] 4 VR 505, where counsel refused to resume his seat and continued to talk and press his submissions after the presiding judge had repeatedly directed him
    
    to sit.

    ↑

13. See, eg, Allen v R (2013) 36 VR 565 where the witness, one of the victims of the alleged offence, refused to enter the witness box, be sworn or answer questions; Keeley v Mr Justice Brooking (1979) 143 CLR 162, where the witness falsely and repeatedly asserted that he could not remember any of his evidence; R v Garde-Wilson (2005) 158 A Crim R 20; DPP (Vic) v Garde-Wilson (2006) 15 VR 640, where the witness refused to answer any questions due to fear for her safety.

    ↑

14. See, eg, R v Tomlinson (Unreported, Supreme Court of Victoria, Beach J, 16 January 1996) where, on the sixth day of a trial, a juror arrived late and affected by alcohol after spending the previous night celebrating his birthday.

    ↑

15. See, eg, Prothonotary of the Supreme Court of New South Wales v Rakete (2011) 202 A Crim R 117, where a person attending court filmed on a digital camera a witness giving evidence in a criminal trial relating to violent offences allegedly committed by one chapter of a motorcycle gang against another.

    ↑

16. It is recognised that legal practitioners must have freedom to present their client’s case, and must be able to do so robustly. However, legal practitioners have faced contempt proceedings when their conduct or submissions have been deemed by the presiding judicial officer to transgress the boundaries of legitimate advocacy to become insulting, disrespectful or disrupting. See, eg, Lewis v Ogden (1984) 153 CLR 682; Re Perkins; Mesto v Galpin [1998] 4 VR 505; Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186; A-G (Qld) v Di Carlo [2017] QSC 171.

    ↑

17. The Law Reform Commission, Contempt (Report No 35, 1987) 60 [93].

    ↑

18. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 59.

    ↑

19. Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper No 10, 2016) 26 [3.02].

    ↑

20. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 61; The Law Reform Commission, Contempt (Report No 35, 1987) 71.

    ↑

21. The Law Reform Commission, Contempt (Report No 35, 1987) ‘Summary of recommendations’, lxxii. Both the ALRC and the WA Commission also recommended that the offence provisions to replace contempt in the face of the court should include a provision relating to photographing, recording and broadcasting proceedings without permission. As the Court Security Act 1980 (Vic) s4A already contains a statutory offence provision in relation to conduct of that type, those recommended provisions are not discussed here.

    ↑

22. The Law Reform Commission, Contempt (Report No 35, 1987) 73 [116].

    ↑

23. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 63, 65.

    ↑

24. District Court Act 2016 (NZ) s 212(1); Senior Courts Act 2016 (NZ) s 165(1). See also Contempt of Court Act 1981 (UK), s 12(1).

    ↑

25. Coroners Act 2008 (Vic) s 103(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137(1).

    ↑

26. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137(1)(f); Coroners Act 2008 (Vic) s 103(1)(f). In addition to the specific conduct set out, both sections define contempt to include ‘any act, which if it occurred before the Supreme Court would constitute contempt of that court’.

    ↑

27. Coroners Act 2008 (Vic) s 103(1)(b).

    ↑

28. Ibid s 103(1)(c).

    ↑

29. Ibid s 103(1)(d).

    ↑

30. See, eg, The Law Reform Commission, Contempt (Report No 35, 1987) 73; cf Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 63.

    ↑

31. See, eg, The Law Reform Commission, Contempt (Report No 35, 1987) 71–3; cf Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 62.

    ↑

32. See, eg, Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 58 [3.2]; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 63.

    ↑

33. The Law Reform Commission, Contempt (Report No 35, 1987) 71–3; cf Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 62 .

    ↑

34. The Law Reform Commission, Contempt (Report No 35, 1987) 72 [115].

    ↑

35. Ibid 73 [115].

    ↑

36. Ibid 72–3 [115].

    ↑

37. Summary Offences (Disrespectful Conduct in Court) Amendment Act 2018 (SA); Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW).

    ↑

38. Supreme Court Act 1970 (NSW) s 131(1); District Court Act 1973 (NSW) s 200A(1); Local Court Act 2007 (NSW) s 24A(1).

    ↑

39. Supreme Court Act 1970 (NSW) s 131(1)(c); District Court Act 1973 (NSW) s 200A(1)(c); Local Court Act 2007 (NSW) s 24A(1)(c).

    ↑

40. Supreme Court Act 1970 (NSW) s 131(7)–(8); District Court Act 1973 (NSW) s 200A(7)–(8); Local Court Act 2007 (NSW) s 24A(7)–(8).

    ↑

41. Summary Offences Act 1953 (SA) s 60(9).

    ↑

42. Ibid s 60(2).

    ↑

43. Ibid s 60(3).

    ↑

44. Ibid s 60(8).

    ↑

45. Lewis v Ogden (1984) 153 CLR 682, 693.

    ↑

46. Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186, 216 (Callaway JA).

    ↑

47. See, eg, Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] 32 VR 216, 218.

    ↑

48. See, eg, European Bank A-G v Wentworth (1986) 5 NSWLR 445; Registrar, Court of Appeal v Collins; Collins v Registrar, Court of Appeal [1982] 1 NSWLR 682; Fraser v The Queen (1984) 3 NSWLR 212.

    ↑

49. County Court Civil Procedure Rules 2018 (Vic) Order 75, Part 2; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 75, Part 2.

    ↑

50. European Bank A-G v Wentworth (1986) 5 NSWLR 445, 457–8. See also Fraser v The Queen (1984) 3 NSWLR 212, 229–32 (Kirby P and McHugh JA).

    ↑

51. European Bank A-G v Wentworth (1986) 5 NSWLR 445. In that case Kirby P in obiter held that a party who struck a potential witness in the courtroom but after the judge had left could not be guilty of contempt in the face of court.

    ↑

52. European Bank A-G v Wentworth (1986) 5 NSWLR 445, 457–8.

    ↑

53. Registrar, Court of Appeal v Collins; Collins v Registrar, Court of Appeal [1982] 1 NSWLR 682, 708.

    ↑

54. Supreme Court Act 1970 (NSW) ss 48(2)(i) and 53(3)(a); District Court Act 1973 (NSW) s 199; Local Court Act 2007 (NSW) s 24(1).

    ↑

55. Re Dunn [1906] VLR 493.

    ↑

56. Re Newton, Alan Henry (Unreported, Supreme Court of Victoria, Nathan J, 24 July 1989) 2.

    ↑

57. Summary Offences Act 1966 (Vic) s 9(1)(c).

    ↑

58. Ibid s 17(1)(c).

    ↑

59. Ibid s 17(1)(d).

    ↑

60. Ibid s 17A.

    ↑

61. Ibid s 23.

    ↑

62. Ibid s 52A.

    ↑

63. Crimes Act 1958 (Vic) s 20.

    ↑

64. Ibid s 21.

    ↑

65. Ibid s 27.

    ↑

66. Ibid ss 256–7.

    ↑

67. Ibid s 314.

    ↑

68. Juries Act 2000 (Vic) s 73.

    ↑

69. Ibid s 71.

    ↑

70. Ibid s 68.

    ↑

71. Ibid s 74.

    ↑

72. Court Security Act 1980 (Vic) s 4A.

    ↑

73. Ibid s 3 (2A)(a).

    ↑

74. Ibid s 3(2B).

    ↑

75. Crimes Act 1958 (Vic) s 320.

    ↑

76. See generally Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper No 36 (2014) 16 [3.5]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 58 [3.2].

    ↑

77. See Solicitor-General v Cox [2016] 2 Cr App R 15 193 for an example of where two people were found guilty of contempt of court for taking photographs of people in the courtroom, even though they could have been prosecuted under a statutory offence which criminalised taking photographs in court.

    ↑

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

    ↑

79. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.02(1); County Court Civil Procedure Rules 2018 (Vic) r 75.02(1).

    ↑

80. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.03(a); County Court Civil Procedure Rules 2018 (Vic) r 75.03(a).

    ↑

81. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.04; County Court Civil Procedure Rules 2018 (Vic) r 75.04.

    ↑

82. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.03(b); County Court Civil Procedure Rules 2018 (Vic) r 75.03(b).

    ↑

83. Magistrates’ Court Act 1989 (Vic) s 133(1)–(2).

    ↑

84. Ibid s 134(2).

    ↑

85. In the Magistrates’ Court, the Bail Act 1977 applies, with any necessary modifications, to a person brought before the Court under section 133 as if the person were accused of an offence and were being held in custody in relation to that offence: Magistrates’ Court Act 1989 (Vic) s133(3).

    ↑

86. See, eg, Allen v The Queen (2013) 36 VR 565, 576; Clampett v A-G (Cth) (2009) 260 ALR 462, 495; Zukanovic v Magistrates’ Court of Victoria at Moorabbin (2011) 32 VR 216, 224; Fraser v The Queen (1984) 3 NSWLR 212, 224.

    ↑

87. (1953) 90 CLR 573.

    ↑

88. (1995) 183 CLR 525.

    ↑

89. Zukanovic v Magistrates’ Court of Victoria at Moorabbin (2011) 32 VR 216, 225.

    ↑

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

    ↑

91. Ibid [76].

    ↑

92. Ibid [98].

    ↑

93. Kift v R [1993] 1 VR 703, 707; Fraser v The Queen (1984) 3 NSWLR 212, 231.

    ↑

94. Foley v Herald-Sun TV Pty Ltd [1981] VR 315, 316.

    ↑

95. Fraser v The Queen (1984) 3 NSWLR 212, 227–8.

    ↑

96. Ibid 227; Kift v R [1993] 1 VR 703, 707.

    ↑

97. Allen v R (2013) 36 VR 565, 576. See also Lewis v Ogden (1984) 153 CLR 682, 693; Zukanovic v Magistrates’ Court of Victoria at Moorabbin (2011) 32 VR 216, 223; Clampett v A-G (Cth) (2009) 260 ALR 462, 469; Keeley v Mr Justice Brooking (1979) 143 CLR 162, 173–4.

    ↑

98. Keeley v Mr Justice Brooking (1979) 143 CLR 162, 174.

    ↑

99. Fraser v The Queen (1984) 3 NSWLR 212, 228.

    ↑

100. Clampett v A-G (Cth) (2009) 260 ALR 462; Allen v R (2013) 36 VR 565.

     ↑

101. (2013) 36 VR 565.

     ↑

102. Ibid 575–8 .

     ↑

103. Ibid 578.

     ↑

104. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 561–2 fn 37. See also R v Slaveski [2011] VSC 643 [24].

     ↑

105. Zukanovic v Magistrates’ Court of Victoria at Moorabbin (2011) 32 VR 216, 224.

     ↑

106. The Law Reform Commission, Contempt (Report No 35, 1987) 70–1 [112].

     ↑

107. Keeley v Mr Justice Brooking (1979) 143 CLR 162, 173 (Stephen J).

     ↑

108. Clampett v A-G (Cth) (2009) 260 ALR 462, 470 (Black CJ).

     ↑

109. Ibid 470.

     ↑

110. Balogh v St Albans Crown Court [1975] QB 73, 85 (Lord Denning MR).

     ↑

111. See recommended reforms discussed in Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 63–4. See also DPP (Vic) v Green and Magistrates’ Court [2013] VSCA 78 [60(1)] (Tate JA) and [99] (Whelan JA) for discussion of power to control the court and direct arrest.

     ↑

112. Court Security Act 1980 (Vic) s 3.

     ↑

113. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 70; The Law Reform Commission, Contempt (Report No 35, 1987) 79–82; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 70.

     ↑

114. See, eg, The Law Reform Commission, Contempt (Report No 35, 1987) 79–80 [130]; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 73–4.

     ↑

115. See, eg, Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 63–8.

     ↑

116. The Law Reform Commission, Contempt (Report No 35, 1987) 71, 79–80.

     ↑

117. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 74.

     ↑

118. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 67–8.

     ↑

119. The Law Reform Commission, Contempt (Report No 35, 1987) 65 [103]–[104].

     ↑

120. Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216.

     ↑

121. Re Perkins; Mesto v Galpin [1998] 4 VR 505.

     ↑

122. Roberts v Harkness (2018) 85 MVR 314, 330; [2018] VSCA 215 [37]; Boros v O’Keefe [2017] VSC 560, [18]–[19]; Ex parte Tubman; Re Lucas [1970] 3 NSWR 41.

     ↑

123. For an example of a rare case where the Victorian Court of Appeal was able to consider and comment, in this case critically, on the use of a warning to punish for contempt, see Magistrates’ Court of Victoria at Heidelberg v Robinson and Another (2000) 2 VR 233.

     ↑

124. See, eg, Monique Preston,‘Villains Shirt Lands Man in Court Trouble’, Whitsunday Times (Web Page, 16 November 2018) <www.whitsundaytimes.com.au/news/villains-shirt-lands-man-in-court-trouble/3578005/>; Caroline Schelle, ‘Family Outburst at Judge as Brain-damaged Shooter Jailed: ‘Get f**ked’’, News.com.au (Web Page, 19 December 2018) <www.news.com.au/national/victoria/courts-law/family-outburst-at-judge-as-braindamaged-shooter-jailed-get-fked/news-story/b8cf09c3916dfd3f9432fd52f76b4bcf>; Elizabeth Byrne, ‘Woman Jailed for Hurling Water, Swearing at Canberra Magistrate in Court Outburst’, ABCNews (Web Page, 1 August 2017) <www.abc.net.au/news/2017-08-01/jail-for-woman-who-swore-and-threw-water-in-court/8763930>

     ↑

125. See, eg Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216; Clampett v A-G (Cth) (2009) 260 ALR 462; R v Ogawa [2011] 2 Qd R 350; R v Slaveski [2011] VSC 643; R v Vasiliou [2012] VSC 216; R v Slaveski [2015] VSC 400.

     ↑

126. See, eg, Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 447; Moore-McQuillan v Registrar of the Supreme Court [2009] SASC 265.

     ↑

127. Suzie O’Toole, I Find You in Contempt: Contempt in the Face of the Court in Australia (Halstead Press, 2017) 123–5.

     ↑