Contempt of Court: Report (html)

7. Dealing with disruptive behaviour: contempt ‘in the face of the court’

Overview

• All courts have the power to punish disruptions occurring in or close to the courtroom that interfere with the conduct of a proceeding. This is now known as ‘contempt in the face of the court’.

• Contempt in the face of the court should be redefined in the proposed Act as ‘contempt by conduct that interferes with a court proceeding’.

• This form of contempt is usually witnessed by a presiding judicial officer with the power to charge, try and punish the contempt using the ‘special summary procedure’. In Chapter 5, the Commission recommends abolishing this procedure.

• To provide certainty and ensure the appropriate use of this power, the proposed Act should comprehensively describe the conduct that constitutes this form of contempt.

• The proposed Act should also require proof that the conduct undermines or interferes with the conduct of the proceeding.

• The proposed Act should also require the court, in determining whether to deal with a person for contempt, and/or the penalty to be imposed, to consider the personal circumstances of the person, including (but not limited to) age, and/ or any mental or cognitive impairment or other condition or disability, and whether the conduct was repeated, calculated or planned to interfere with the proceeding, or was threatening.

• The proposed Act should specify that any person attending court can be punished for conduct that interferes with a proceeding.

What is contempt in the face of the court?

7.1 The term ‘contempt in the face of the court’ originates in common law and is not defined in statute. It does not refer to particular types of conduct. Rather, it is any conduct that occurs in or near the court, which interferes with, or tends to interfere with, the proper administration of justice.

7.2 All Victorian courts have the power to punish for contempt in the face of the court. As discussed in Chapter 3, the Supreme Court of Victoria has inherent powers to punish for contempt, including contempt committed in the courtroom, which arise out of its powers to protect the administration of justice.^[1] All other courts have this power conferred by legislation.^[2]

7.3 Contempt in the face of the court can be committed by:

• disrupting or interrupting proceedings^[3]

• assaulting or threatening those in court^[4]

• behaving in an insulting or disrespectful way^[5]

• refusing as a witness to be sworn or to answer a question, or prevaricating (that is, evading answering a question, for example, by pretending not to remember)^[6]

• making an unauthorised recording of proceedings.^[7]

7.4 Typically, this conduct is witnessed by the presiding judicial officer, who can then charge, try and punish the contempt based on their own observations. This is known as the ‘special summary procedure’.^[8] As discussed in Chapter 5, the Commission recommends that this procedure should be abolished.^[9]

Should contempt in the face of the court be retained?

7.5 In Chapter 4, the Commission recommends that legislation should define the law of contempt, including specific categories of contempt. This would make the law clearer, certain and more accessible, and therefore make it more likely people will comply with the law. That chapter also discusses the general views of stakeholders on whether legislation is needed. 

7.6 The consultation paper asked whether contempt in the face of the court should be retained and, if so, whether it should be restated in statute.^[10] This section briefly discusses stakeholder views on this question, focusing on concerns specific to contempt in the face of the court.

Responses

7.7 Most stakeholders who addressed this question supported the retention of this form of contempt and its restatement in legislation.^[11] Other stakeholders said this form of contempt was needed but did not address whether it should be restated in legislation,^[12] or else queried the need for legislation.^[13]

7.8 As the Supreme Court submitted, ‘the ability to control the conduct of proceedings before the Court is fundamental to ensuring the proper administration of justice’.^[14] A fair hearing requires ‘an environment where all parties are heard, witnesses give evidence and juries can deliberate free from intimidation or disruption or threats to the proper process of the Court’.^[15]

7.9 Some courts told the Commission that the power to charge a person immediately for contempt in the face of the court has an important deterrent effect on disruptive behaviour and provides a mechanism to deal with such behaviour where other strategies have failed.^[16]

7.10 However, courts and tribunals also told the Commission that most disruptive behaviour in court is dealt with by ‘court-craft’, rather than through contempt proceedings.^[17] For example, courts can adjourn a proceeding or require a person to leave the courtroom for a period of time.^[18]

7.11 Victoria Legal Aid (VLA) expressed concern that restating this form of contempt as an offence could lead to overuse.^[19] VLA told the Commission in consultations that including an element of intention could address this concern.^[20]

7.12 Stakeholders observed that the power to punish for contempt in the face of the court was the source of the presiding judicial officer’s power to deal with disruptive conduct by, for example, ejecting a person from the court or detaining a person in the dock or cells. If the court’s power to deal with someone for contempt in the face of the court was removed, there may not be a clear foundation for these other powers.^[21]

Commission’s conclusions: retain and restate as ‘contempt by conduct that interferes with a court proceeding’

7.13 Contempt in the face of the court should be retained and restated in the proposed Act as a distinct category of contempt. As discussed in Chapter 4, restatement in statute makes the law clearer, more certain and more accessible.

7.14 Statutory restatement enables contempt in the face of the court to be redefined using accessible and accurate language specific to the type of contempt, namely conduct interfering with a court proceeding. A more appropriate description of contempt in the face of the court is ‘contempt by conduct that interferes with a court proceeding’.

7.15 Restating this contempt in legislation is also necessary to make clear:

• whether the judicial officer must have directly observed the conduct

• whether this form of contempt should be defined as specific conduct or as conduct which interferes with a proceeding or the administration of justice

• whether insulting or disrespectful conduct should constitute contempt

• what fault element applies.

Recommendation

46 The proposed Act should recognise ‘contempt in the face of the court’ as a distinct category of contempt and redefine it as ‘contempt by conduct that interferes with a court proceeding’.

Definition of ‘contempt by conduct that interferes with a court proceeding’

Conduct not observed by the judicial officer

7.16 As discussed in the consultation paper, the meaning of ‘in the face of the court’ is not settled at common law. It is unclear whether the power to use the special summary procedure to deal with a person for contempt ‘in the face of the court’ can only be exercised in respect of conduct seen or heard by the judicial officer.^[22]

7.17 In Chapter 5 the Commission recommended abolishing the special summary procedure. This removes the ability of a judicial officer to immediately try and punish disruptive conduct as a contempt based on their observations. This procedural change raises the question of whether, for this form of contempt, direct observation of the conduct by the presiding judicial officer is still a relevant requirement.

Responses

7.18 Most stakeholders addressing this issue considered that this type of contempt should extend beyond conduct directly observed by the judicial officer.^[23] The County Court of Victoria stated:

Defining ‘in the face of the court’ to include only matters directly seen or heard by the judge is too narrow. The Court supports a broader view of the meaning, which covers inside a courtroom, within the court building, or other areas that are physically proximate to the County Court, provided they are connected with the administration of justice.^[24]

7.19 The Supreme Court supported defining what is required for a contempt to be in ‘the face of a court’. It suggested requiring actions to be ‘sufficiently proximate to affect a pending case’.^[25]

7.20 In contrast, the Law Institute of Victoria (LIV) considered this form of contempt should be limited to conduct directly seen or heard by the presiding judicial officer. In its view, the ability to quickly and efficiently determine the matter using these perceptions is a key justification for the existing procedure.^[26]

Commission’s conclusions: conduct must occur in or near the courtroom

7.21 Since the Commission recommends abolishing the special summary procedure, it is unnecessary to confine this category of contempt to conduct directly observed by a judicial officer. However, the conduct must still occur in or near the courtroom. This is consistent with current law. It is also consistent with the current scope of the powers of the Magistrates’ Court of Victoria and the Children’s Court of Victoria.

7.22 Underlying the Commission’s recommendations is a concern that it is important for those attending courts to know the limits of permissible behaviour in and near the courtroom.

7.23 Further, as a practical matter, it is often only evidence of conduct in or near the courtroom that is readily available through audio and CCTV recordings or witnessed by court staff. Without the support of an investigative agency, it may be difficult for a court to gather evidence of conduct that does not occur in or near a courtroom.

7.24 Where conduct does not occur in or near the courtroom but falls within another category of contempt, including the general category, an application can still be made to deal with the contempt under the proposed Act. However, the Magistrates’ Court, Children’s Court and Coroners Court will not have jurisdiction to deal with the contempt.

Recommendation

47 The proposed Act should provide that ‘contempt by conduct that interferes with a court proceeding’ is limited to conduct that occurs in or near the courtroom.

Defining the conduct—a specified list or a broad definition?

Other jurisdictions

7.25 At common law, contempt in the face of the court is not specifically defined. Rather, it is defined broadly as any conduct that interferes with, or has a tendency to interfere with, the administration of justice.^[27]

7.26 Many jurisdictions continue to rely on a common law definition of contempt in the face of the court.^[28] This gives a court flexibility to deal with a wide range of behaviour. It also ensures the conduct is only punished where the presiding judicial officer considers it amounts to an interference with the administration of justice.

7.27 This is important since conduct may often interrupt or disrupt a court proceeding but will not amount to a contempt, because it does not interfere with the administration of justice. However, this common law approach creates uncertainty about what type of conduct may be punished as a contempt in the face of the court, because different judicial officers may apply different thresholds.

7.28 Legislation in other jurisdictions which gives contempt powers to lower courts often lists exhaustively the conduct that constitutes this form of contempt.^[29] This provides certainty and accessibility for those attending courts, but limits flexibility, and may leave courts without power to punish conduct that falls outside those categories. It also exposes people to punishment where they carry out the specified conduct, even though the conduct may not amount to an interference with the administration of justice.

7.29 Finally, some jurisdictions adopt a hybrid approach. They prohibit specific types of conduct but also give the court power to punish for any other conduct that amounts to a contempt in the face of the court.^[30]

7.30 Jurisdictions that have listed specific conduct have included the following actions:

• interrupting^[31] or wilfully interrupting a court proceeding^[32]

• wilfully disrupting a court proceeding^[33]

• wilfully obstructing a proceeding^[34]

• misbehaving^[35] or wilfully misbehaving before the court^[36]

• insulting a person constituting the court,^[37] including when they are on their way to or from the court^[38]

• insulting any person attending court^[39] or wilfully insulting a judge, juror, registrar, sheriff, clerk or officer of the court^[40]

• wilfully obstructing a person constituting the court, including when they are on their way to or from the court^[41]

• obstructing,^[42] hindering,^[43] or unlawfully obstructing a person attending court^[44]

• assaulting a person attending court^[45]

• failing to take an oath or affirmation^[46]

• failing to give evidence^[47] or wilfully prevaricating^[48]

• disobeying the court’s orders or directions at a hearing.^[49]

Approach of other law reform agencies

7.31 The Australian Law Reform Commission (ALRC) and the Law Reform Commission of Western Australia (WA Commission) both recommended replacing contempt in the face of the court with offences defining the conduct comprehensively in legislation.

7.32 The ALRC recommended replacing contempt of court with offences of:

• causing a substantial disruption to a hearing

• failing to appear as a witness or be sworn or make an affirmation, or give evidence (‘witness misconduct’)

• recording proceedings by taking or publishing photographs, video or film in court without leave of the court, or publishing sound recordings of court proceedings without leave of the court.^[50]

7.33 The WA Commission recommended replacing contempt in the face of the court with similar offences, but also recommended an offence of insulting the presiding judicial officer or officer of a court.^[51]

Responses

7.34 The Commission was told that a non-exhaustive definition of contempt in the face of the court was required to ensure flexibility.^[52] The County Court stated:

some behaviour will vary in seriousness depending on the context in which it is exhibited. Flexibility is preferred over consistency to ensure that the process fairly takes into account the unique features of each case.^[53]

7.35 Members of the Magistrates’ Court told the Commission that contempt in the face of the court needs a broad definition to allow for flexibility.^[54] The Supreme Court submitted that this category of contempt should be defined according to recognised principles and should include a non-exhaustive list about contempt generally, because it is ‘not possible in advance to identify every form of behaviour which may have a tendency to interfere with the proper administration of justice’.^[55]

7.36 Similarly, the Chief Examiner commented that the scope of contempt is ‘necessarily nebulous’ and that if legislation specified the conduct that could be sanctioned ‘novel or uncommon types of conduct’ might be overlooked.^[56]

7.37 In addition, the Chief Examiner noted that conduct could take on:

a contemptuous character because of the circumstances in which, or the frequency with which, it is carried out. For example, a witness who without proper basis, objects to the nature of the questioning during an examination may be engaging in behaviour that has a tendency to disrupt proceedings, depending on the extent to which that behaviour is sustained.^[57]

7.38 However, the LIV supported the ALRC’s recommendation that contempt in the face of the court be replaced with two offences:

• acting so as to cause a substantial disruption to a hearing

• witness misconduct, such as refusing to appear, to be sworn or to make an affirmation or to answer a lawful question.^[58]

7.39 The LIV stated this approach provided greater certainty, recognised the difficulties faced by those appearing before the courts, and protected against arbitrary or vindictive use of the power.^[59]

7.40 The Victorian Equal Opportunity and Human Rights Commission prioritised certainty over flexibility. They noted that self-represented litigants and vulnerable people are more likely to be dealt with for contempt in the face of the court. Legislation that clearly sets out the conduct that constitutes contempt would assist these individuals.^[60]

Commission’s conclusions: conduct should be exhaustively defined

7.41 Flexibility to respond to unanticipated conduct, as emphasised by the courts, must be balanced with certainty. People attending courts should know and understand what behaviour constitutes contempt by conduct that interferes with a court proceeding. This also protects against the inappropriate use of the contempt power.

7.42 Accordingly, the proposed Act should exhaustively list the conduct that can constitute contempt by interfering with a court proceeding. Drawing on the approach of other jurisdictions the following conduct should be included:

• disruptions or interruptions to a court proceeding

• obstructions, threats, abuse, or the assault of any person in or near a court—including a judicial officer, court officer, witness, party to a proceeding, legal practitioner, court staff or member of the public

• any other conduct that improperly influences any person in or near a court

• failure to comply with an order or direction made by a judicial officer at the hearing

• making any unauthorised recording of a proceeding, including photography, filming or audio recording

• any other insulting behaviour.

7.43 The Commission acknowledges that this approach fetters the court’s powers and reduces flexibility. However, the need for certainty for court users outweighs the need for flexibility.

7.44 To ensure that this contempt power is used appropriately, the Commission considers that the proposed Act should provide that the listed conduct does not constitute a contempt unless it also interferes with or undermines the conduct of the proceeding. This protects people from being charged for minor interferences. Conduct that falls outside the listed categories cannot be punished as this type of contempt.

7.45 The Commission considers that using the expression ‘interference with the conduct of a proceeding’ is more readily understood than ‘interference with the administration of justice’.

Recommendation

48 The proposed Act should provide that a person may be dealt with by a court for ‘contempt by conduct that interferes with a court proceeding’ where a person:

• disrupts or interrupts a proceeding

• obstructs, threatens, abuses or assaults any person in or near a court

• seeks to improperly influence any person in or near a court

• disobeys an order or direction made by a judicial officer at and in relation to the hearing of a proceeding

• makes an unauthorised recording of a proceeding, including by taking photographs, filming or other recording

• engages in any other insulting behaviour, and

• the conduct undermines or interferes with the conduct of the proceeding.

Insulting or disrespectful behaviour

7.46 The consultation paper asked whether insulting or disrespectful behaviour should be included within the scope of contempt in the face of the court.^[61]

7.47 It is uncertain whether insulting or disrespectful behaviour can amount to contempt under common law.

7.48 Courts have often emphasised that the contempt power should not be used to ‘vindicate the personal dignity’^[62] or ‘assuage the injured feelings’^[63] of judicial officers. However, disrespectful or insulting conduct directed towards a judicial officer may still be dealt with as contempt because of its potential to diminish the authority of the court^[64] or interrupt a proceeding.^[65]

7.49 On one view, the law should not punish behaviour that is insulting or disrespectful but does not disrupt court proceedings. Another view is that the court should have power to punish this behaviour since it undermines the court’s authority, thereby interfering with the court’s ability to conduct a proceeding.

7.50 The Coroners Court of Victoria is the only Victorian court that is given the power under legislation to punish for contempt for insulting an officer of the court or a person attending an inquest.

Approach by other jurisdictions and law reform bodies

7.51 Legislation in several jurisdictions specifies that contempt includes ‘insults’ or ‘wilful insults’ towards a judicial officer.^[66] The courts interpret ‘wilfully’ as requiring an intention to deliberately interfere with or obstruct a proceeding.^[67]

7.52 The ALRC recommended that insulting or disrespectful conduct should only be prohibited if it amounted to a substantial disruption, because the criminal law is not an appropriate way to maintain the dignity of a public institution where nothing else is at stake. It noted that this reflects the approach adopted by many judges of ignoring conduct which does not disrupt proceedings. It considered that where insulting or offensive acts were persistent, these would most likely result in a substantial disruption.^[68]

7.53 In contrast, the WA Commission recommended that insulting a judicial officer could attract liability, but only where this was done ‘wilfully’.^[69]

7.54 South Australia and New South Wales have enacted summary offences of disrespectful conduct, which is distinct from the contempt power. New South Wales prohibits disrespectful behaviour, defined ‘according to established court practice and convention’.^[70] South Australia defines disrespectful conduct as including:

• refusing to stand up after being requested to do so

• using offensive or threatening language

• interfering with or undermining the authority, dignity or performance of the court.^[71]

Responses

7.55 The Children’s Court supported including insulting conduct as part of a statutory contempt offence, but did not express a view regarding disrespectful behaviour.^[72]

7.56 The Criminal Bar Association and the Victorian Civil and Administrative Tribunal (VCAT) stated that insulting and disrespectful behaviour should constitute contempt.^[73] VCAT also stated that there must be ‘a degree of latitude which takes [into] account the repetition and gravity of the behaviour in the particular circumstances’.^[74]

7.57 The Commission was told by the Magistrates’ Court that people appearing before the Court regularly engage in disrespectful behaviour. While the approach of magistrates varies, many magistrates prefer to continue to hear the matter, as contempt proceedings take extra time and resources.^[75]

7.58 Victorian Legal Aid (VLA) expressed concern that contempt may be overused if it encompassed minor disrespectful behaviour.^[76]

7.59 The LIV stated that insulting or disrespectful behaviour should not be included within the scope of the offence, unless it reached the threshold of ‘persistently insulting or disrespectful behaviour resulting in a substantial disruption’.^[77] The LIV noted that:

conduct which appears to offend judicial dignity may often arise because of misunderstandings or heightened emotion due to the critical importance of the proceedings for those appearing before the court. The LIV does not consider criminal penalties are an appropriate mechanism for attempting to maintain the dignity of the court or the judicial officer, where nothing but dignity is at stake, and notes that it may in fact diminish the dignity of the court if the court is seen as retaliating against, or acting vindictively towards, an alleged contemnor.^[78]

Commission’s conclusions: insulting conduct may sometimes constitute contempt

7.60 Conduct that is only disrespectful should not be dealt with as contempt, unless it also falls into another proposed category such as an interruption or disruption to a proceeding.

7.61 Disrespectful behaviour can result from a person being unfamiliar with the court system, or because of a misunderstanding, and may be trivial. What amounts to disrespectful behaviour can be subjective. In the Commission’s view, such conduct should not be punished. Where a person exhibits disrespectful behaviour, a judicial officer can direct the behaviour to cease. If the person fails to comply with this request, the failure can then be dealt with as contempt under the proposed Act.

7.62 Insulting behaviour is less likely to be inadvertent than disrespectful behaviour and has a more significant impact on the standing of the court. Accordingly, conduct which is insulting should be recognised as contempt if it interferes with or undermines the conduct of a proceeding.

7.63 This approach ensures that the insulting conduct must go beyond merely offending the feelings of the judicial officer to impacting on the court’s performance and authority. This aligns with the general purpose of the law of contempt, which is to protect and promote the proper administration of justice.

7.64 In addition, and as discussed below, the proposed Act should provide that, in determining whether a contempt has occurred, the court must also consider whether the conduct is repeated, sustained, calculated, or planned to interfere with the proceeding, or is threatening.

Unauthorised recording of proceedings

7.65 An unauthorised recording of proceedings by taking photographs, filming or otherwise recording in the courtroom, can constitute a contempt in the face of the court at common law.^[79] It is also an offence in Victoria to make a recording of a proceeding under the Court Security Act 1980 (Vic).^[80]

7.66 The Commission recommends that the proposed Act retain the making of an unauthorised recording of a proceeding as a contempt. This allows the court to retain an independent power to control the courtroom without relying on the executive arm of government to commence a prosecution under the Court Security Act. In a digital age, where recordings can easily be made and disseminated, this remains an important power.

Fault element

7.67 To establish contempt in the face of the court at common law, it must be proved that the conduct constituting the contempt was intentional. It is not necessary to prove that the person intended to interfere with the administration of justice.^[81]

7.68 The consultation paper asked what fault elements should be required if contempt in the face of the court is restated in statute.^[82] It questioned whether this type of contempt should be limited to conduct that is ‘wilful’.^[83] ‘Wilful’ has been interpreted as an intention to deliberately interfere with or obstruct a judicial proceeding.^[84]

Approach by other jurisdictions and law reform bodies

7.69 Jurisdictions have adopted different approaches to the fault element when enacting statutory provisions for contempt by interference with a court proceeding.

7.70 Some jurisdictions require that conduct, such as insults,^[85] interruptions,^[86] disruptions^[87] or disobeying or a court order or direction,^[88] be ‘wilful’. Other jurisdictions do not expressly require that the conduct must be wilful.^[89]

7.71 In considering reform of contempt in the face of the court, the WA Commission recommended against including a fault element for offences of contempt in the face of the court, consistent with the general approach of the Western Australia criminal code.^[90] Nevertheless, the WA Commission included a fault element in the proposed offence of ‘wilfully’ insulting a judicial officer or officer of the court.^[91]

7.72 In contrast, the ALRC considered that the usual requirement of a ‘guilty intent’ in criminal law should apply to its proposed offence of substantial disruption. An accused should only be liable for this offence if he or she intended to disrupt the proceedings or was recklessly indifferent as to whether the conduct would have this effect.^[92]

Responses

7.73 The LIV supported including a fault element because it is an ‘essential component’ of criminal liability. The LIV proposed that it should be necessary to prove a person intended to cause a disruption or was recklessly indifferent as to whether the conduct would have that effect.^[93]

7.74 In consultations, the VLA told the Commission that requiring proof of intention would protect against the overuse of this contempt power. An intention element could be framed to capture calculated behaviour, not emotional outbursts. Participants were concerned that requiring an ‘intention to interfere with a proceeding’ may be too narrowly interpreted, and that an ‘intention to interfere with the administration of justice’ might be a better test.^[94]

7.75 In relation to contempt generally, the Director of Public Prosecutions (DPP) and the Chief Examiner told the Commission that it would be difficult to prove that a person intended to interfere with the administration of justice, and that this should not be required.^[95] Victoria Police told the Commission that it can be very difficult to prove intent in offences relating to the administration of justice. The DPP added that fault and intent should only be relevant in determining penalty.^[96] Legal practitioners also told the Commission that including a fault element in contempt generally would significantly confine the law of contempt, and would allow people to be careless about their conduct.^[97]

Commission’s conclusions: conduct must be intentional, but no intention to interfere with the proceeding required

7.76 To establish contempt in the face of the court at common law it must be proved that the conduct constituting the contempt was intentional.

7.77 This common law standard should remain. That is, the conduct must be intentional, but it is not necessary to prove an intention to interfere with a proceeding or the administration of justice. This reflects the importance of the court being able to control the courtroom, and the significant challenge in proving an intent to interfere with the administration of justice or with a court proceeding.

Recommendation

49 The proposed Act should provide that for a person to be liable for ‘contempt by conduct that interferes with a court proceeding’ the court must be satisfied that the person’s conduct was intentional.

Defence of ‘reasonable excuse’

7.78 As discussed in the consultation paper, case law suggests that certain groups of people may be more at risk of being found in contempt, including self-represented litigants^[98] and people with mental health issues.^[99] This raises the questions of whether there are circumstances where people may be less culpable for their behaviour, and whether a defence should be available.

Approach by other jurisdictions and law reform bodies

7.79 The WA Commission proposed the introduction of an offence of interrupting or disrupting a court proceeding ‘without reasonable excuse’.^[100]

7.80 South Australia has a summary offence criminalising disrespectful behaviour, distinct from the court’s contempt power. It is a defence if the conduct was due to a physical disability or cognitive impairment, which includes:

• a developmental disability

• an acquired disability as a result of illness or injury

• a mental illness.^[101]

Responses

7.81 Stakeholders observed that litigation can be very stressful.^[102] As the VLA points out, this may lead to ‘poor choices of language and behaviour’.^[103]

7.82 Stakeholders noted that some people may be more prone to the stress of litigation.^[104] These may include:

• people experiencing mental health issues^[105]

• children and young people^[106]

• people with disabilities such as a cognitive impairment^[107] or acquired brain injury^[108]

• people who suffer from drug or alcohol dependence^[109]

• domestic violence victims^[110]

• victims of and witnesses to crime^[111]

• self-represented litigants.^[112]

7.83 The disadvantage faced by certain groups of people may lead to some members of those groups being unfairly^[113] or disproportionately^[114] exposed to an exercise of the contempt power.

7.84 Challenges with cross-cultural communication can also heighten these risks, including for Indigenous people.^[115]

7.85 In consultations, members of the Magistrates’ Court told the Commission that charging a person with contempt is not appropriate when their conduct relates to a mental illness, but that this can be difficult to identify.^[116]

7.86 VLA suggested that the law should be framed to protect against the overuse of contempt powers by only capturing deliberate behaviour, not emotional outbursts. This would help to address the vulnerability of certain groups who are more at risk, such as young people who are more prone to outbursts.^[117]

7.87 Noting the stress of litigation, Dr O’Toole stated:

for some people in some circumstances, their mental health challenges may be so significant that they are unaware of their behaviour or oblivious to the effect of their behaviour on others. Others may be aware of their behaviour but find it difficult to control, which has a bearing on culpability, and questions relating to appropriate penalties … there are some litigants whose mental ill-health draws them to querulous behaviour.

7.88 Dr O’Toole also drew attention to the need to support judicial officers and court staff who experience the impacts of abusive behaviour.^[118]

7.89 Contempt in the face of the court is common at VCAT, where there are many litigants without representation, a certain proportion of whom may also have mental health issues.^[119] Disruptive behaviour can have a significant detrimental impact on other parties to the proceeding, and is often intended to intimidate and bully them.^[120] VCAT stated that the courts and the Tribunal should apply contempt powers with a ‘degree of latitude which takes account of the repetition and gravity of the behaviour in particular circumstances’.^[121]

Commission’s conclusions: factors to be considered in determining whether to deal with a person for contempt and penalty

7.90 The Commission acknowledges that court proceedings can be stressful, especially for certain groups of people who may be disadvantaged when engaging with the court system. For a small number of these people, this may lead to a greater risk of improper behaviour in the courtroom. This raises the question of whether culpability should be reduced to take disadvantage into account.

7.91 Such considerations must be balanced against the need to control court proceedings and to deter disruptions that undermine the functioning of the court and impact on court staff and other court users.

7.92 Consistent with the existing common law, the proposed Act should not include a defence of ‘reasonable excuse’ to contempt by conduct that interferes with the conduct of a court proceeding.

7.93 However, the court should be required to take certain factors into account in determining whether to exercise its discretion to deal with a person for contempt, and what penalty to impose if a contempt is proved. While the court should retain a broad discretion, properly exercised, this requirement will minimise the risk that people will be punished for contempt where they are less culpable due to their particular circumstances.

7.94 Accordingly, the Commission recommends that in determining whether to deal with a person for contempt, and in determining penalty, the proposed Act should provide that the court must consider whether the conduct was:

• calculated or planned to interfere with the proceeding

• repeated or sustained

• threatening.

7.95 Including these factors will reduce the likelihood that inadvertent or unintentional disruptive behaviour will be dealt with as contempt.

7.96 The court should also be required to consider the personal circumstances of the person that may impact on their culpability and degree of responsibility, including age and any mental or cognitive impairment or other condition or disability.

7.97 The Commission notes the comment made in consultation with the Magistrates’ Court that people should not be dealt with for contempt when their conduct relates to a mental illness. However, it can be difficult to identify when this is the case. The Commission considers that further training should be provided to judicial officers about how to identify and help people who may need assistance when navigating court proceedings.

Recommendations

50 The proposed Act should not include a defence of reasonable excuse for contempt by conduct that interferes with a court proceeding.

51 The proposed Act should provide that in determining whether to exercise its discretion to deal with a person for contempt by conduct that interferes with a court proceeding, or in determining what penalty should be imposed, the court must consider:

• the personal circumstances of the person that may affect their culpability and degree of responsibility for the conduct, including (but not limited to) age and/or any mental or cognitive impairment or other condition or disability

• whether the conduct is calculated or planned to interfere with the proceeding, is repeated or sustained, or is threatening.

52 Further education should be made available to judicial officers on how to identify and assist particular groups of people who may need assistance during court proceedings.

Is a risk of interference sufficient?

7.98 In Chapter 4 the Commission proposed a general power to punish for contempt, when there is a substantial risk of interference with the administration of justice, rather than a ‘tendency’.

7.99 Accordingly, the Commission has considered whether conduct that has a substantial risk of interfering with the conduct of a proceeding should constitute contempt under the proposed Act.

7.100 To prove contempt in the face of the court at common law, it is not necessary to prove actual interference with the administration of justice, only that the conduct ‘tended’ to interfere.^[122] This makes it easier to prove the contempt.

7.101 No stakeholders addressed this issue.

Commission’s conclusions: proof of interference should be required

7.102 The Commission considers that there is a qualitative difference between the common law test of ‘interference with the administration of justice’, and the proposed test of interference ‘with the conduct of a proceeding’.

7.103 The administration of justice is an amorphous concept. Proving that a person has interfered with the administration of justice can be difficult. For this reason, it is enough to prove that the person has created a substantial risk of interference. In contrast, it is easier to prove that a person has interfered with the conduct of a proceeding.

7.104 The Commission recommends that to prove a contempt of this kind, the conduct must undermine or interfere with the conduct of the proceeding. In this context, it would set the threshold too low if it were enough to prove only a risk of interference. As VLA observes, court is a stressful environment which can lead people to make poor choices of language and behaviour.^[123] Where conduct does not reach the level of an actual interference or undermining with the conduct of a proceeding, it should not be punished.

Recommendation

53 The proposed Act should provide that actual interference with, or undermining of, the conduct of a proceeding is required to constitute contempt by conduct that interferes with a court proceeding. A risk of interference is not sufficient.

Who may be charged with contempt by conduct that interferes with a proceeding?

7.105 Persons found guilty of contempt in the face of the court at common law include a party to the proceeding, a legal practitioner, a witness, a juror and a member of the public.

7.106 The Commission considers the common law standard is appropriate and that the proposed Act should make clear that the court should continue to have power to sanction any person’s interference with a proceeding.

Recommendation

54 The proposed Act should provide that any person can commit a contempt that interferes with a court proceeding including, but not limited to, a party to the proceeding, an accused, a legal practitioner, a witness, a juror or a member of the public.

Misconduct by witnesses

7.107 Witness misconduct is an established category of contempt in the face of the court.

7.108 As the Supreme Court submitted, the law of contempt protects the Court’s power to compel witnesses to attend and give evidence so that judicial decisions can be made on the best evidence.^[124]

7.109 The Children’s Court and the Magistrates’ Court told the Commission that they use their contempt powers most often in relation to misconduct by witnesses, particularly when witnesses refused to give evidence. The existence of these powers is important in encouraging testimony from reluctant witnesses, although the courts have other ways to encourage witnesses to testify.^[125]

7.110 As already noted, both the ALRC and the WA Commission recommended replacing the law of contempt with offences of witness misconduct.^[126]

Commission’s conclusions: witness misconduct

7.111 The Magistrates’ Court Act 1989 (Vic) provides a comprehensive regime specifying when witness misconduct can constitute contempt. The Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the County Court Civil Procedure Rules 2018 provide that a failure to comply, without lawful excuse, with a subpoena to produce or to attend to give evidence is a contempt of court.^[127] To achieve clarity and consistency, and noting the important role contempt plays in dealing with witness misconduct, uniform provisions should apply across all jurisdictions in the proposed Act.

7.112 These provisions should be set out separately from the court’s power to deal with contempt by interference with a proceeding. It should not be necessary to prove the misconduct interferes with or undermines the conduct of a proceeding, because that would introduce an unnecessary threshold.

7.113 This list of specified conduct should be exhaustive to provide certainty. Witnesses may also be dealt with for contempt by conduct that interferes with a proceeding, if applicable.

Recommendation

55 The proposed Act should provide that witness misconduct constituting a contempt is limited to a person:

• failing to comply, without lawful excuse, with a summons or subpoena to produce documents or things, or to attend to give evidence or to attend to give evidence and produce documents or things

• when summoned or subpoenaed, refusing to be sworn or affirmed, or refusing to answer any lawful question

• when being examined as a witness or being present in court and required to give evidence, refusing to be sworn or affirmed, or refusing to answer any lawful question, or, without sufficient excuse, refusing to produce any documents or things that the person is required to produce

• when attending court to give evidence, refusing to leave the court and remain outside and beyond the hearing of the court until required to give evidence contrary to an order to that effect

• who, in the opinion of the judicial officer, is guilty of wilful prevarication, that is, evading answering questions.

Penalties

7.114 Currently, the Supreme Court or County Court may punish a person for contempt, including contempt in the face of the court by imprisonment or fine or both.^[128] No maximum penalty is specified.

7.115 The Magistrates’ Court, Children’s Court and Coroners Court may also order a term of imprisonment, or a fine, up to a statutory maximum, as set out in the following table.

Responses

7.116 As discussed in Chapter 5, with few exceptions,^[132] most stakeholders told the Commission that a maximum penalty should be set for contempt.^[133] Stakeholders commented that the maximum penalty should reflect comparable offences which address interfering with the administration of justice.^[134]

7.117 Only one stakeholder suggested a preferred maximum penalty of imprisonment of 12 months for contempt in the face of court.^[135] In other Australian jurisdictions, the penalty for contempt in the face of the court ranges between 28 days and two years.^[136]

Commission’s conclusions: penalties

7.118 The general recommendations made in Chapter 5 should apply to contempt by conduct that interferes with a court proceeding.^[137]

Magistrates’, Children’s, and Coroners Courts

7.119 To achieve consistency among the lower courts, the maximum penalty for contempt by conduct that interferes with a proceeding and witness misconduct in the Magistrates’, Children’s and Coroners Courts should be six months, or a fine of 25 penalty units.

7.120 This would result in an increase in the penalty for witness misconduct from one month to six months, and from five penalty units to 25 penalty units in the Magistrates’ and Children’s Court.

7.121 Neither the Magistrates’ Court nor the Children’s Court expressly stated a need to increase the penalty levels. However, the Commission considers an increase is warranted in view of the Courts’ comments that witness misconduct is a key area where contempt powers are needed and most often used (although this remains infrequent).^[138]

7.122 This proposal reduces the maximum penalty in the Coroners Court for contempt by conduct that interferes with a proceeding and witness misconduct from 12 months to six months.

Supreme and County Courts

7.123 For the Supreme and County Courts, the maximum penalty for each type of misconduct should reflect its gravity. In setting these proposed maximums, the Commission has considered comparable statutory schemes and/or penalties imposed by the court in contempt cases (see Appendices I and G).

7.124 The Commission therefore recommends a maximum penalty of imprisonment for 12 months and/or a fine of 120 penalty units for:

• making an unauthorised recording of a proceeding including by taking photographs, filming or other recording

• insulting behaviour

• disrupting or interrupting a proceeding

• disobeying an order or direction made by a judicial officer at the hearing of the proceeding.

7.125 The Commission recommends a higher maximum penalty of imprisonment for five years and/or a fine of 600 penalty units for:

• obstructing, threatening, abusing, assaulting or seeking to improperly influence any person in or near a court

• witness misconduct.

Recommendation

56 The proposed Act should include maximum penalties for contempt by conduct that interferes with a court proceeding and witness misconduct, as follows:

• for the Magistrates’ Court, Children’s Court and Coroners Court: six months imprisonment and/or a fine of 25 penalty units

• for the Supreme and County Courts for the making of an unauthorised recording of a proceeding, including by taking photographs, filming or other recording; insulting behaviour; disrupting or interrupting a proceeding; or for defying an order or direction made by a judicial officer at and in relation to the hearing of the proceeding: 12 months imprisonment and/or a fine of 120 penalty units

• for the Supreme and County Courts for obstructing, threatening, abusing, assaulting or seeking to improperly influence any person in or near the court, or for witness misconduct: five years imprisonment and/or a fine of 600 penalty units.

A consistent approach across all Victorian courts

7.126 As noted earlier, all Victorian courts have power to punish for contempt in the face of the court.

7.127 To ensure consistency across Victoria’s court system, the recommendations in this chapter for the restatement of contempt in the face of the court should apply to all Victorian courts empowered to deal with contempt in the face of the court.^[139]

Recommendation

57 The Commission’s recommendations for contempt by conduct that interferes with a court proceeding should apply to all Victorian courts.

Consistency of use of contempt powers

7.128 The consultation paper noted there are many ways to deal with disruptive behaviour in the courtroom.^[140] It asked whether, to achieve consistency and certainty, there should be guidance regarding when contempt powers or other options should be applied.^[141]

Responses

7.129 Stakeholders told the Commission that as disruptive behaviour is largely managed using court-craft, recourse to contempt powers is rare.^[142]

7.130 However, some stakeholders observed that the use of such powers varies between individual judicial officers.^[143]

7.131 Representatives of victims of crime support organisations told the Commission that contempt powers should be used more by judicial officers. They stated that offenders were sometimes hostile, insulting and threatening, which is frightening for victims.^[144]

7.132 Members of the Magistrates’ Court stated that magistrates will often disregard contemptuous conduct because contempt proceedings take extra time and resources.^[145]

7.133 Participants from the Judicial College of Victoria stated that there are often other pressures within the courts, such as financial pressures, which influence whether they exercise their contempt powers.^[146]

7.134 Some stakeholders stated that consistency would be improved by setting thresholds for the behaviour that can be dealt with as contempt,^[147] and minimising the use of the special summary procedure.^[148]

7.135 The Children’s Court submitted that the decision to exercise contempt powers should be left to the discretion of each judicial officer, although it was an appropriate matter for judicial education.^[149]

Commission’s conclusions: no further measures required

7.136 The Commission has recommended that the proposed Act contain an exhaustive list of conduct that can constitute contempt by conduct that interferes with a proceeding. As set out in Chapter 5, the Commission has also recommended abolishing the special summary procedure.

7.137 These measures will enhance consistency and certainty in the way people are dealt with for conduct that interferes with a proceeding. Whether or not the court decides to deal with someone for contempt must remain in the discretion of the court, and is highly dependent on the particular circumstances of each case. The Commission does not consider any other measures are required to address consistency in managing disruptive courtroom behaviour.

1. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241–3, 254; Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117, 125, 137. See also Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 75 pt 2, which sets out the procedure for the application of this power.

   ↑

2. County Court Act 1958 (Vic) s 54; Magistrates’ Court Act 1989 (Vic) s 133; Children, Youth and Families Act 2005 (Vic) s 528; Coroners Act 2008 (Vic) s 103. Similar powers are also conferred on tribunals and other bodies: see, eg, Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137; Major Crime (Investigative Powers) Act 2004 (Vic) s 49.

   ↑

3. See, eg, R v Slaveski [2011] VSC 643; R v Ogawa [2009] QCA 307; Re Perkins; Mesto v Galpin [1998] 4 VR 505.

   ↑

4. See, eg, R v Slaveski [2015] VSC 400; DPP (Vic) v Johnson [2002] VSC 583; A-G (Vic) v Rich [1998] VSC 41.

   ↑

5. See, eg, R v Slaveski [2011] VSC 643; DPP (Vic) v Johnson [2002] VSC 583.

   ↑

6. See, eg, Allen v The Queen [2013] VSCA 44, (2013) 36 VR 565; R v Garde-Wilson [2005] VSC 441; Keeley v Brooking (1979) 143 CLR 162.

   ↑

7. See, eg, Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665.

   ↑

8. See Chapter 5 for more discussion on the special summary procedure. See also Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 50–5 [4.48]–[4.75].

   ↑

9. In Chapter 5 the Commission recommends a modified procedure where the presiding judicial officer who witnessed the conduct may formulate a charge of contempt but must refer it to another judicial officer for hearing and determination.

   ↑

10. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 46, Questions 12–13.

    ↑

11. Submissions 4 (Dr Suzie O’Toole), 7 (The Victorian Civil and Administrative Tribunal), 14 (Children’s Court of Victoria), 20 (Criminal Bar Association), 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 20 (Victorian Equal Opportunity and Human Rights Commission). One person submitted that the law of contempt generally, including those covered by contempt in the face of the court, should not be retained: Submission 2 (David S Brooks).

    ↑

12. Consultations 1 (Representatives of victims of crime support organisations), 13 (Fiona K Forysth QC, John Langmead QC).

    ↑

13. Submissions 11 (Victoria Legal Aid), 28 (Director of Public Prosecutions);

    ↑

14. Submission 29 (Supreme Court of Victoria)

    ↑

15. Ibid.

    ↑

16. Submissions 14 (Children’s Court of Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 15 (Children’s Court of Victoria). The Chief Examiner also noted that having the power to charge for contempt ‘appears to have been effective in deterring disruptive or other types of contemptuous behaviour’: Submission 26 (Chief Examiner, Victoria).

    ↑

17. Consultations 15 (Children’s Court of Victoria), 22 (The Victorian Civil and Administrative Tribunal), 25 (Magistrates’ Court of Victoria).
    
    The Supreme Court submitted that the law of contempt generally is invoked infrequently: Submission 29 (Supreme Court of Victoria).

    ↑

18. Consultations 15 (Children’s Court of Victoria), 22 (The Victorian Civil and Administrative Tribunal), 25 (Magistrates’ Court of Victoria).

    ↑

19. Submission 11 (Victoria Legal Aid).

    ↑

20. Consultation 6 (Victoria Legal Aid).

    ↑

21. Consultations 26 (Supreme Court of Victoria), 12 (Professor David Rolph), 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

22. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 47–8 [4.34]–[4.43]. As discussed there, judges in New South Wales have disagreed on this issue, although the New South Wales cases were affected by legislation which referred to contempt in the face or hearing of a court: see European Asian Bank AG v Wentworth (1986) 5 NSWLR 445; Fraser v The Queen (1984) 3 NSWLR 212; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682.

    ↑

23. Submissions 7 (The Victorian Civil and Administrative Tribunal), 11 (Victoria Legal Aid), 14 (Children’s Court of Victoria), 31 (County Court of Victoria). The special summary procedure may only be available in cases where the conduct has been directly seen or heard by the presiding judge in any event, and if all other forms of contempt were replaced by statutory provisions, these might include conduct not directly seen or heard by the presiding judge: Submission 20 (Criminal Bar Association).

    ↑

24. Submission 31 (County Court of Victoria).

    ↑

25. Submission 29 (Supreme Court of Victoria).

    ↑

26. Submission 22 (Law Institute of Victoria).

    ↑

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

    ↑

28. See, eg, Federal Circuit Court of Australia Act 1999 (Cth) s 17; District Court Act 1973 (NSW) s 199; Local Court Act 2007 (NSW) s 24; Magistrates Court Act 1930 (ACT) s 307.

    ↑

29. See eg, Magistrates Court Act 1991 (SA) s 45; Magistrates Court Act 2004 (WA) s 15; Magistrates Court Act 1987 (Tas) s 17A; District Court Act 2016 (NZ) s 212. The District Court of WA has both an exhaustive list of conduct constituting contempt and a provision conferring the same powers as the Supreme Court for matters that are within its jurisdiction: District Court of Western Australia Act 1969 (WA) ss 55 (general powers), 63 (contempt in the face of the court).

    ↑

30. See, eg, Coroners Act 2008 (Vic) s 103; Magistrates Courts Act 1921 (Qld) s 50(1).

    ↑

31. Coroners Act 2008 (Vic) s 103(d); Magistrates Court Act 1991 (SA) s 45(a); Magistrates Court Act 1930 (ACT) s 307(1), example 2.

    ↑

32. Magistrates Courts Act 1921 (Qld) s 50(1)(c); District Court of Western Australia Act 1969 (WA) s 63(1)(b); Magistrates Court Act 2004 (WA) s 15(1)(a)(i); Magistrates Court Act 1987 (Tas) s 17A(1)(b).

    ↑

33. Contempt of Court Act 2019 (NZ) s 10(a). This section replaces contempt of court with similar legislative powers empowering a judicial officer to cite a person for disruptive behaviour.

    ↑

34. Magistrates Court Act 1987 (Tas) s 17A(1)(b).)

    ↑

35. Coroners Act 2008 (Vic) s 103(1)(d); Magistrates Courts Act 1921 (Qld) s 50(1)(c); Magistrates Court Act 1991 (SA) s 45(a); District Court of Western Australia Act 1969 (WA) s 63(1)(f); Magistrates Court Act 1930 (ACT) s 307(1), example 2.

    ↑

36. Magistrates Court Act 2004 (WA) s 16(1)(a)(ii); Magistrates Court Act 1987 (Tas) s 17A(1)(a).

    ↑

37. Coroners Act 2008 (Vic) s 103(b); Magistrates Court Act 1991 (SA) s 45(b); Magistrates Court Act 2004 (WA) ss 15(1)(a)(iii), (b); Magistrates Court Act 1930 (ACT) s 307(1), example 1.

    ↑

38. District Court of Western Australia Act 1969 (WA) s 63(1)(a); Magistrates Court Act 2004 (WA) s 15(1)(b).

    ↑

39. Coroners Act 2008 (Vic) s 103(1)(c).

    ↑

40. District Court of Western Australia Act 1969 (WA) s 63(1)(a).

    ↑

41. Magistrates Court Act 2004 (WA) s 15(b).

    ↑

42. Coroners Act 2008 (Vic) s 103(c); Magistrates Court Act 1930 (ACT) s 307(1), example 3.

    ↑

43. Coroners Act 2008 (Vic) s 103(c).

    ↑

44. Magistrates Courts Act 1921 (Qld) s 50(1)(d).

    ↑

45. Ibid; Magistrates Court Act 1930 (ACT) s 307(1), example 3.

    ↑

46. Magistrates’ Court Act 1989 (Vic) s 134(1)(b), (c); Magistrates Court Act 2004 (WA) s 15(c);

    ↑

47. District Court of Western Australia Act 1969 (WA) s 63(1)(d); Magistrates Court Act 2004 (WA) s 15(1)(d).

    ↑

48. District Court of Western Australia Act 1969 (WA) s 63(1)(e); Magistrates Court Act 1987 (Tas) s 17A(1)(c).

    ↑

49. Magistrates Courts Act 1921 (Qld) s 50(1)(e); Magistrates Court Act 1991 (SA) s 45(c); Magistrates Court Act 2004 (WA) s 15(1)(e); Magistrates Court Act 1930 (ACT) s 307(1), example 4; Contempt of Court Act 2019 (NZ) s 10(1)(b).

    ↑

50. The Law Reform Commission, Contempt (Report No 35, December 1987) 71–7, [114]–[126].

    ↑

51. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) Recommendations 27, 29–31.

    ↑

52. Submissions 14 (Children’s Court of Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria). VCAT stated additional types of behaviour should be defined in its Act and a general residual offence of contempt is also needed to provide sufficient flexibility: Consultation 22 (The Victorian Civil and Administrative Tribunal).

    ↑

53. Submission 31 (County Court of Victoria).

    ↑

54. Consultation 25 (Magistrates’ Court of Victoria).

    ↑

55. Submission 29 (Supreme Court of Victoria)

    ↑

56. Submission 26 (Chief Examiner, Victoria).

    ↑

57. Ibid.

    ↑

58. Submission 22 (Law Institute of Victoria).

    ↑

59. Ibid.

    ↑

60. Consultation 20 (Victorian Equal Opportunity and Human Rights Commission).

    ↑

61. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 47, Question 14.

    ↑

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

    ↑

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

    ↑

64. See, eg, Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] VSC 141 [4]–[5], (2011) 32 VR 216.

    ↑

65. Lewis v Ogden (1984) 153 CLR 682, 688.

    ↑

66. See, eg, Coroners Act 2008 (Vic) s 103(1)(b); Magistrates Courts Act 1921 (Qld) s 50(1)(b); Magistrates Court Act 1991 (SA) s 45(b); Magistrates Court Act 2004 (WA) s 15(1)(b); Magistrates Court Act 1930 (ACT) s 307(1)(b), example 1. In the District Court of Western Australia, this is extended to insults towards a juror, registrar, sheriff, clerk or officer of the Court: District Court of Western Australia Act 1969 (WA) s 63(1)(a).

    ↑

67. Lewis v Ogden (1984) 153 CLR 682, 688.

    ↑

68. The Law Reform Commission, Contempt (Report No 35, December 1987) 72–3 [115].

    ↑

69. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 63, Recommendation 63. It noted that this requirement was not included in its other recommended offences.

    ↑

70. Local Court Act 2007 (NSW) s 24A(1)(c).

    ↑

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

    ↑

72. Submission 14 (Children’s Court of Victoria).

    ↑

73. Submissions 7 (The Victorian Civil and Administrative Tribunal), 20 (Criminal Bar Association), although the Criminal Bar Association stated that it should not be able to be dealt with under the special summary procedure.

    ↑

74. Submission 7 (The Victorian Civil and Administrative Tribunal).

    ↑

75. Consultation 25 (Magistrates’ Court of Victoria). David S Brooks also submitted that this should not be an offence, as it is a ‘victimless crime’: Submission 2 (David S Brooks).

    ↑

76. Submission 11 (Victoria Legal Aid).

    ↑

77. Submission 22 (Law Institute of Victoria).

    ↑

78. Ibid.

    ↑

79. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 43-4 [4.9].

    ↑

80. Court Security Act 1980 (Vic) s 4A(1).

    ↑

81. See, eg, Ex parte Tuckerman; Re Nash [1970] 3 NSWR 23, 28, where the Court took the view that what was relevant was the objective effect of the conduct, not the underlying intent of the person carrying out the conduct.

    ↑

82. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 46, Question 13.

    ↑

83. Ibid 45 [4.22].

    ↑

84. Lewis v Ogden (1984) 153 CLR 682, 688.

    ↑

85. Magistrates Courts Act 1921 (Qld) s 50(1)(b); Magistrates Court Act 2004 (WA) s 15(1)(a)(iii).

    ↑

86. Magistrates Courts Act 1921 (Qld) s 50(1)(c); Magistrates Court Act 2004 (WA) s 15(1)(a)(i).

    ↑

87. Contempt of Court Act 2019 (NZ) s 10(1)(a).

    ↑

88. Ibid s 10(1)(b) (and without lawful excuse).

    ↑

89. Magistrates Court Act 1991 (SA) s 45; Magistrates Court Act 1930 (ACT) s 307(1)(b).

    ↑

90. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 62.

    ↑

91. Ibid 63 (while they are acting in the course of their official duties).

    ↑

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

    ↑

93. Submission 22 (Law Institute of Victoria). The Children’s Court of Victoria also suggested consideration be given to including a fault element of either actual intention or recklessness, although it noted that this would depend on how the contempt in the face of the court was restated in legislation: Submission 14 (Children’s Court of Victoria).

    ↑

94. Consultation 6 (Victoria Legal Aid).)

    ↑

95. Submissions 26 (Chief Examiner, Victoria), 28 (Director of Public Prosecutions).

    ↑

96. Submission 28 (Director of Public Prosecutions).

    ↑

97. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

98. See, eg, Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216; R v Slaveski [2015] VSC 400; R v Vasiliou [2012] VSC 216; R v Slaveski [2011] VSC 643; R v Ogawa [2009] QCA 307; Clampett v A-G (Cth) [2009] FCAFC 151, (2009) 181 FCR 473.

    ↑

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

    ↑

100. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) Recommendation 27.

     ↑

101. Summary Offences Act 1953 (SA) s 60(3). Section 60(9)(a) provides that a developmental disability includes for example, an intellecutal disability, Down syndrome, cerebral palsy or an autistic spectrum disorder. Section 60(9)(b) provies that an acquired disability as a result of illness or injury includes, for example, dementia, a traumatic brain injury or a neurological disorder.

     ↑

102. Submissions 4 (Dr Suzie O’Toole), 11 (Victoria Legal Aid), 22 (Law Institute of Victoria).

     ↑

103. Submission 11 (Victoria Legal Aid).

     ↑

104. Submissions 4 (Dr Suzie O’Toole), 11 (Victoria Legal Aid), 22 (Law Institute of Victoria); Consultations 9 (Victorian Government Solicitor’s Office), 20 (Victorian Equal Opportunity and Human Rights Commission).

     ↑

105. Submissions 4 (Dr Suzie O’Toole), 7 (The Victorian Civil and Administrative Tribunal), 11 (Victoria Legal Aid), 22 (Law Institute of Victoria); Consultation 9 (Victorian Government Solicitor’s Office).

     ↑

106. Submissions 11 (Victoria Legal Aid), 22 (Law Institute of Victoria).

     ↑

107. Submissions 11 (Victoria Legal Aid), 22 (Law Institute of Victoria).

     ↑

108. Consultation 6 (Victoria Legal Aid).

     ↑

109. Submission 22 (Law Institute of Victoria).

     ↑

110. Ibid.

     ↑

111. Ibid.

     ↑

112. Submissions 7 (The Victorian Civil and Administrative Tribunal), 22 (Law Institute of Victoria); Consultation 9 (Victorian Government Solicitor’s Office).

     ↑

113. Submission 22 (Law Institute of Victoria).

     ↑

114. Submission 11 (Victoria legal Aid)

     ↑

115. Consultation 20 (Victorian Equal Opportunity and Human Rights Commission).

     ↑

116. Consultation 25 (Magistrates’ Court of Victoria).

     ↑

117. Consultation 6 (Victoria Legal Aid).)

     ↑

118. Submission 4 (Dr Suzie O’Toole).

     ↑

119. Submission 22 (The Victorian Civil and Administrative Tribunal).

     ↑

120. Submission 22 (The Victorian Civil and Administrative Tribunal); Consultation 7 (The Victorian Civil and Administrative Tribunal).

     ↑

121. ↑

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

     ↑

123. Submission 11 (Victoria Legal Aid).

     ↑

124. Submission 29 (Supreme Court of Victoria).

     ↑

125. Consultations 15 (Children’s Court of Victoria), 25 (Magistrates’ Court of Victoria).

     ↑

126. The Law Reform Commission, Contempt (Report No 35, December 1987) 73–5, [117]–[121]; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) Recommendation 30.

     ↑

127. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.12; County Court Civil Procedure Rules 2018 (Vic) r 42.12.

     ↑

128. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1); County Court Civil Procedure Rules 2018 (Vic) r 75.11(1). The rules also set out that a body corporate may be punished for contempt by sequestration or fine or both. See Chapter 5 for further discussion of the current rules regarding penalty.

     ↑

129. Magistrates’ Court Act 1989 (Vic) s 133(4). This section applies to the Children’s Court: Children, Youth and Families Act 2005 (Vic) s 528.

     ↑

130. Magistrates’ Court Act 1989 (Vic) s 134(3). This section applies to the Children’s Court: Children, Youth and Families Act 2005 (Vic) s 528.

     ↑

131. Coroners Act 2008 (Vic) s 103(7). For a body corporate, the maximum penalty is 600 penalty units.

     ↑

132. Submission 26 (Chief Examiner, Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

133. Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 11 (Victoria Legal Aid), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition); Consultation 12 (Professor David Rolph).

     ↑

134. Submissions 11 (Victoria Legal Aid), 29 (Supreme Court of Victoria).

     ↑

135. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

     ↑

136. See Appendix I. See also Appendix G for an illustrative list of penalties imposed for contempt in the face of the court.

     ↑

137. This includes setting maximum penalties, providing for the application of the Sentencing Act 1991 (Vic) and the Children, Youth and Families Act 2005 (Vic) for sentencing of children, and providing the court with discretion to order early discharge from a term of imprisonment.

     ↑

138. Consultations 15 (Children’s Court of Victoria), 25 (Magistrates’ Court of Victoria).

     ↑

139. This was supported as the preferable position by a participant from the Magistrates’ Court: Consultation 25 (Magistrates’ Court of Victoria).

     ↑

140. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 55–6 [4.76]–[4.77].

     ↑

141. Ibid 56, Question 18.

     ↑

142. Consultations 15 (Children’s Court of Victoria), 22 (The Victorian Civil and Administrative Tribunal), 25 (Magistrates’ Court of Victoria). The Supreme Court submitted that the law of contempt generally is invoked infrequently: Submission 29 (Supreme Court of Victoria).

     ↑

143. Consultations 1 (Representatives of victims of crime support organisations); 6 (Victoria Legal Aid), 25 (Magistrates’ Court of Victoria. Victoria Police noted that in recent years behaviour in courtrooms has deteriorated but that courts are generally very tolerant: Consultation 19 (Victoria Police).

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144. Consultation 1 (Representatives of victims of crime support organisations).

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145. Consultation 25 (Magistrates’ Court of Victoria).

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146. Consultation 10 (Judicial College of Victoria).

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147. Submissions 20 (Criminal Bar Association), 22 (Law Institute of Victoria.

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148. Submission 22 (Law Institute of Victoria).

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149. Submission 14 (Children’s Court of Victoria).

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