Contempt of court why it still matters

Therefore, the Supreme Court has the power to deal with a contempt of itself as well as contempts of any lower court. Therefore, to understand the law of contempt of court, it is necessary to look to cases that have been decided by judges. Subscribe for Updates Please complete the form below to subscribe to receive updates for this project. Please email all submissions to: stalking lawreform.

Dr Vivian Waller was admitted to legal practice in She has 25 years experience representing survivors of institutional child sexual abuse including litigation in the Supreme Court of Victoria and the High Court of Australia.

She has written submissions for the Royal Commission and appeared before the Senate Committee in relation to the establishment of the National Redress Scheme. Dr Waller represented, on a pro bono basis, the complainant in the criminal prosecution and appeals process in relation to allegations against Cardinal George Pell. She was Second Deputy Chief Parliamentary Counsel from until and has more than 37 years experience as a legislative drafter in the Office of the Chief Parliamentary Counsel.

Mrs Varley is in private practice as a consulting legislative drafter. In she was awarded a Public Service Medal for outstanding public service through the drafting of legislation in Victoria. She was appointed to the Commission in August She provides advice to the state government on constitutional and other public law matters, including legislative development, and has been involved in cases which have developed critical areas of the law.

She has been a member of the Victorian Legal Admissions Committee since She was awarded a Public Service Medal in June for outstanding public service to the provision of legal services to the Victorian public sector, particularly in the areas of constitutional and public law.

She was appointed to the Commission in September Dan Nicholson is the Executive Director, Criminal Law at Victoria Legal Aid, responsible for the delivery of legally aided criminal law services across the state. He has worked on a range of human rights issues in Cambodia and Timor-Leste. She is an internationally recognised legal academic in the fields of criminal law and mental health law and is a Fellow of the Academy of Social Sciences in Australia as well as a Fellow of the Australian Academy of Law.

An accused person, defendant, party to, or person called to give evidence in proceedings before the court commits an offence if they intentionally engage in behaviour in court during the proceedings which is disrespectful to the court or presiding magistrate: s 24A 1 Local Court Act The offence does not apply to police prosecutors or Australian legal practitioners when they are acting in those capacities: s 24A 3.

Whether behaviour is disrespectful to the court is determined according to established court practice and convention: s 24A 1 c. Justice Harrison concluded that the offence criminalises certain behaviour in a two-step process:. The prosecution must prove each beyond reasonable doubt. However, the prosecution is not required to prove that in performing the relevant behaviour the offender intended to cause the consequence for which s 24A 1 c provides: Elzahed v Kaban , above, at [37]—[38].

The only mental element is with respect to 1 above, that is, the act or omission in question be intentional: Elzahed v Kaban at [43]. In Elzahed v Kaban , the prosecution led evidence of established court practice and convention. The relevant disrespect in s 24A 1 b does not need to be serious, nor need there be an intention to communicate disrespect or knowledge of the relevant court practice and convention: Elzahed v Kaban at [46], [56], [73], [86].

Note the Supreme Court may also hear such offences arising from conduct in that court in its summary jurisdiction. Such proceedings:. A magistrate can refer disrespectful behaviour in proceedings over which they presided to the Attorney General: s 24A 7. An official transcript or official audio or video recording of the proceedings is admissible in evidence and is evidence of the matter included in the transcript or audio or video recording: s 24A 9.

The relevant magistrate cannot be required to give evidence in the proceedings: s 24A Proceedings for contempt may still be brought in respect of behaviour that constitutes an offence against s 24A 1 , but a person cannot be prosecuted for both: ss 24A 11 and In that case Harrison J dismissed an appeal against a sentence of 75 hours community service for offences against s A District Court Act His Honour concluded that a s 10 order was not appropriate because the offending was not trivial, involving multiple offences directed to the maintenance of respect for the judicial process: Elzahed v Kaban at [81]—[82].

In rejecting a submission that recording a conviction carried an element of extra-judicial punishment, his Honour said at [84]:. Local Court Bench Book Contempt of court [] Introduction [] Has there been a contempt in the face of the court [] Alternatives to summary charge [] Referral to the Supreme Court Suggested approach see Dangerfield at [51]ff and Chan at [59]—[61] [] Summary charge [] Adjournment for defence to charge [] The hearing [] Penalty [] Purging contempt [] Offence of disrespectful behaviour [] Disrespectful behaviour — procedure [] Disrespectful behaviour — sentencing Last updated: LCBB , NOV Contempt of court.

If so, the reference is sent to the prothonotary whether disrespectful behaviour ought be referred to the Attorney General under s 24A 7 Local Court Act As I will go on to explain I disagree with that view point and consider that the same editorial rigour which generally does and should continue to apply to the traditional printed press, should also apply to online publications.

Again I do not agree with that approach. Indeed, I feel that these developments have actually re-enforced the need for contempt of court legislation to support and act in conjunction with inherent safeguards in our jury system. A defendant must be tried solely on the evidence that is presented in court, nothing else. This is the fundamental reason why the contempt of court jurisdiction exists and why legislation is, in conjunction with other safeguards as relevant today as it always has been.

There may be some who have an intrinsic distrust of journalists, fearful that anything they say is misunderstood and misquoted. I can understand that suspicion but do not agree with it. I fully endorse the observation from Lord Justice Watkins in relation to the attendance of the press at court, when he said:. No one now days can surely doubt that [their] presence in Court for the purpose of reporting proceedings conducted therein is indispensable.

Without [them], how is the public to be informed of how justice is being administered in our Courts? If the public feel disquiet about certain topics, a free press can in turn help to identify and express it. Even amongst the most salacious of reports on an individual case one will often find thoughtful and insightful articles on a wider but connected topic. Until the well recognised institutions of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.

The two are inextricably linked and essential parts of the administration of justice. There are, however, some occasions when these two rights cannot just run side by side and one must take priority over the other. The starting point in establishing that priority is, as I believe it should be, in favour of open justice as endorsed in the Contempt of Court Act which protects fair and accurate contemporaneous reporting, written in good faith.

Moreover, the same Act only prohibits the publication of material which creates a substantial risk that the course of justice will be seriously impeded or prejudiced. However there are other statutory reporting restrictions in place or available to reflect specific concerns surrounding a criminal trial.

Others are designed to protect particular groups identified as being vulnerable in the trial process, such as the young or complainants in sexual assault cases. These are important because the right to a fair trial is not just confined to the defendant but also extends to ensure that justice is done for the victims of crime and, I stress again, the public at large. Without fair justice there cannot be any justice and no rule of law upon which our society is so firmly based.

In blunt terms and with doubtless imperfections, in my view, it does. Although my office receives a substantial number of queries from legal representatives, the courts, the judiciary, members of the public and also members of the press there have been a comparatively small number of prosecutions under either the Act or for breaches of other specific restrictions.

Comparative that is to the sheer number of cases that are heard up and down the country every year. I agree with the former Master of the Rolls Lord Clarke who in observed in his written memorandum to the Culture Media and Sport select committee that:.

The small number of prosecutions under the Act is testament to the fact that it sets the balance well between freedom of expression and the right to a fair trial, properly guides press behaviour and ensures the jury system that lies at the heart of our criminal justice system is not compromised.

It is perhaps equally testament to the fact that generally speaking our press is one that acts, where criminal prosecutions are concerned, with probity and responsibility. They do not want a trial to come to a premature end because of their own coverage. They are conscious not only of the need for a defendant to be tried on the evidence that is presented in court but also of the trauma that may be caused to a witness and others by any delays in proceedings or even, in the worst case, the staying of a case due to prejudicial reporting.

Quite simply, because of the impact of one trial being impeded or the identity of one protected person being revealed. As it is the administration of justice or the protection of a vulnerable group with which we are dealing, any breaches must be taken seriously.

But without the sanction of prosecution the danger is they will occur more often and in turn cause greater disruption to criminal trials. Prosecution does concentrate minds. As a practitioner in the field of health and safety law it has seemed to me to be effective in raising and maintaining safety standards. I see the sanctions for Contempt of court in a similar light. There have been recent high profile examples of justice being disrupted.

In the trial of 2 Premiership footballers had to be abandoned when a Sunday newspaper printed material raising prejudicial assertions, not relied on by the prosecution, just when the jury were considering their verdict. The article was read by members of the jury and it was felt that there was no option but to discharge them and adjourn for a number of months for the case to be re-tried.

Identification was an issue and despite a number of warnings from one of my predecessors a national newspaper did name 2 individuals as being suspects and printed their pictures. The decision whether to prosecute though is not always as simple as it might first appear. That is not always the case with reports covered by the Contempt of Court Act. No doubt like many of you I have felt disquiet in the past when reading blanket coverage about some high profile criminal investigations and arrests.

These have included pretty lurid background information about suspects and speculation about the offences with which they have been charged. At first blush such reports may appear to be contrary to the right of a fair trial. There may even be a significant ground swell of opinion that not enough is being done to curb it and that I as the Attorney should be intervening more often. Some of you may share that viewpoint and I realise that it is often you, as members of the Bar and of the Judiciary, who have to deal with queries about reports at first hand.