12.1 Sub judice contempt is treated as a criminal offence punishable by criminal sanctions such as imprisonment or fine.¹ It follows that the burden of proving liability for contempt lies with the party bringing the prosecution. Liability must be proved beyond reasonable doubt.² It has also been held that the Sentencing Act 1989 (NSW)³ applied to a sentence of imprisonment for contempt of court.⁴

12.2 However, unlike other criminal offences, contempt is an offence sui generis which attracts a distinctive jurisdiction and set of procedures. The procedures for prosecution and trial, as well as the powers of the courts in disposing of the matters are peculiar to this particular offence. For example, whereas the Director of Public Prosecutions (the “DPP”) is generally responsible for the day-to-day prosecution of most criminal offences, it is the Attorney General who initiates and conducts prosecutions for contempt. Contempt cases are conducted summarily and, notwithstanding their criminal nature, they are dealt with as a form of civil proceeding.⁵ In New South Wales, appeals from convictions for contempt are heard by the Court of Appeal, not the Court of Criminal Appeal.⁶

12.3 In this chapter, the Commission examines procedural aspects of the prosecution and hearing of sub judice contempt proceedings with particular attention to: (1) who may initiate sub judice contempt proceedings; (2) where should they be heard and decided; (3) what should be the mode of trial (specifically, whether the present summary procedure should be continued); and (4) which court should hear and decide appeals.

12.4 As noted in Chapter 1, this Discussion Paper is primarily concerned with sub judice contempt. This is mainly because the inquiry originated from the controversy arising from the Costs in Criminal Cases Bill 1997 (NSW), which deals with matters relating to the operation of the sub judice rule.⁷ This chapter, as well as the following chapter on sanctions and remedies, follows this approach by confining the discussion of issues on procedure, sanctions and remedies to issues which have a direct impact on sub judice contempt. Matters concerning civil contempt or those peculiar to other forms of criminal contempt, for example, will not be dealt with in these chapters. Nevertheless, most of the proposals in these chapters are drafted in a manner that would apply not just to sub judice contempt, but to criminal contempts in general. As the policies underlying most of the proposals on procedure, sanctions and remedies apply equally to all forms of criminal contempt, confining the proposals to sub judice contempt may lead to a situation where one set of rules applies to sub judice contempt and another governs other forms of criminal contempt. Hence, for example, Proposal 25 on the transfer of appeal proceedings from the Court of Appeal to the Court of Criminal Appeal, if confined to sub judice contempt, would lead to a situation where a person convicted of sub judice contempt goes to the Court of Criminal Appeal to appeal the conviction, while a person convicted of another form of criminal contempt has to go to the Court of Appeal. Proposal 27 on the establishment of upper limits on prison sentences and fines, if limited to sub judice contempt, would establish certainty as to the penalties that can be imposed for sub judice contempt but would allow courts to continue to possess virtually unlimited discretion when sentencing persons convicted of other forms of criminal contempt. The decision by the Commission to draft the relevant proposals in broad terms is aimed at preventing such absurd situations. The Commission acknowledges that some of these proposals may also be appropriate to civil contempts. However, it will not endeavour to examine the effectiveness of the relevant proposals to civil contempts as this would veer too far away from its chosen path of focusing on sub judice contempt.

INSTIGATION OF PROCEEDINGS

12.5 The Attorney General has the primary responsibility at common law to protect the administration of justice by instituting proceedings, when appropriate, for the punishment of alleged contempt.⁸ In Attorney General v Times Newspapers Ltd,⁹ Lord Diplock said of the British Attorney General’s role in relation to contempt of court:

He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty’s judges themselves; but he acts on behalf of the Crown as ‘the fountain of justice’ and not in the exercise of its executive functions. It is in similar capacity that he is available to assist the court as amicus curiae and is a nominal party to relator actions.¹⁰

12.7 Legislation enacted in 1998 expressly recognises the Attorney General’s power to institute contempt proceedings.¹³ Section 16B was added to the Criminal Procedure Act 1986 (NSW): paragraph (1) provides that “[p]roceedings for contempt of court may be instituted in the Supreme Court in the name of the ‘State of New South Wales’ by: (a) the Attorney General, or (b) the Solicitor General or Crown Advocate acting under a delegation from the Attorney General.”

12.8 At common law, the right to bring contempt proceedings is not exclusive to the Attorney General. A private person, a court of its own motion or the DPP may also institute such proceedings. It is apparent that s 16B of the Criminal Procedure Act 1986 (NSW) has not modified the authority of these entities to institute contempt proceedings. Its purposes are to enable the Attorney General to delegate the function of initiating contempt proceedings to the Crown Advocate or the Solicitor General and to enable such proceedings to be commenced in the name of the State of New South Wales.¹⁴ Quite clearly, there was no intention to vest the relevant power exclusively in the Attorney General (or in the Crown Advocate or Solicitor General acting under a delegation from the Attorney General) because paragraph (2) of s 16B states that nothing in the section “prevents proceedings for contempt of court from being instituted in any other manner.” In other words, the common law with respect to the institution of contempt proceedings is preserved.

12.9 The following sections of this chapter consider the roles of those other than the Attorney General in the instigation of sub judice contempt proceedings.

The Director of Public Prosecutions

12.10 The DPP is the main prosecution arm of the government. His or her responsibilities include instituting and conducting the prosecution of indictable offences in the Supreme Court and the District Court,¹⁵ committal proceedings for indictable offences, proceedings for summary offences in any court and proceedings for indictable offences that may be dealt with summarily in Local Courts.¹⁶

12.11 The Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”) is silent as to the power of the DPP to commence contempt proceedings. However, two decisions involving the DPP have examined this issue. In Director of Public Prosecutions v Australian Broadcasting Corporation (“ABC”),¹⁷ the New South Wales Court of Appeal held that the Commonwealth DPP has standing to institute contempt proceedings in relation to a case being tried by a State court involving a federal offence. In reaching this decision, the court said:¹⁸

The DPP had been validly authorised to institute prosecutions on indictment and had power to institute proceedings for the commitment of persons for trial in respect of indictable offences. Upon exercising this power the DPP is a litigant in the ensuing proceedings and prima facie is given the same right to bring proceedings for contempt to ensure the integrity of the administration of justice in respect of those proceedings as if he were a defendant in those proceedings. If the proceedings are brought in a State court then, subject to any statutory prohibition or limitation, he has the same power to bring contempt proceedings in the appropriate State court.

12.13 The decision in Director of Public Prosecutions v ABC was based on the principle that a party to litigation may bring proceedings in respect of a contempt alleged to prejudice the due administration of justice in relation to that litigation. If the ruling were applied to the New South Wales DPP, it would mean that the latter could institute contempt proceedings with respect to criminal proceedings to which he or she is a party. The ruling in Director of Public Prosecutions v ABC, however, acknowledges only limited powers for the DPP with respect to criminal contempt proceedings. It does not recognise any power in the DPP to seek sanctions for breach of the sub judice principle with respect to civil proceedings or to criminal proceedings in which the DPP is not a party. It also may not recognise any power in the DPP to institute proceedings for another form of contempt by publication – scandalising the court – because the offending material does not relate to any pending proceedings. Consequently, the DPP may not be able to bring prosecutions for a range of contempts by publication because he or she is not a party to proceedings notwithstanding that all forms of contempts by publication are criminal offences. Because the ruling in Director of Public Prosecutions v ABC was based on the right of a litigant (in that case the Commonwealth DPP) to institute contempt proceedings relating to the relevant litigation, and did not consider the broader role of the DPP as one of the primary public law officers charged with the administration of criminal law, which encompasses contempt, its recognition of the DPP’s role with respect to contempt has clear limits.

12.14 The ruling of the Supreme Court of Western Australia in Pearce confers a wider power on the DPP. It effectively treats the DPP and the Attorney General as having concurrent powers to investigate and prosecute contempt cases. The ruling in Pearce, however, may not apply to the New South Wales DPP because the DPP Act does not contain a provision, similar to s 20(2)(a) of the legislation in Western Australia, which expressly grants to the DPP of that state the authority to exercise any power with respect to the investigation and prosecution of offences that is vested (by statute or common law) in the Attorney General.

12.15 Section 20(1)(b) of the DPP Act gives the New South Wales DPP the power “to do anything incidental or conducive to the exercise of any functions of the Director.” It may be argued that the taking of proceedings for contempt arising out of criminal proceedings initiated by the DPP is incidental or conducive to the exercise of his or her powers. This argument would probably be accepted by the courts of New South Wales. In that event, the New South Wales DPP would have the same limited power as was confirmed for the Commonwealth DPP in Director of Public Prosecutions v ABC.

Legislation to make the DPP the prosecution officer for contempt cases

12.16 The current position in NSW seems therefore that the Attorney General is the main law officer charged with the prosecution of contempt cases and the DPP has this power only with respect to contempt relating to cases where the DPP is a party. One reform option is for legislation to be passed giving the DPP the day-to-day responsibility for the prosecution of criminal contempts, as the case with the Attorney General retaining residual powers, similar to the arrangement under the DPP Act.²¹ This was essentially the recommendation of the ALRC (“ALRC”) in its report on contempt.²²

12.17 The main argument for such an option is that sub judice contempt is a criminal offence and as such, should be treated like all other offences, including in the way in which it is prosecuted. This would be consistent with the reforms intended when the office of the DPP was created in 1986 to vest the general day-to-day responsibility for the prosecution of serious criminal offences in a single person. The office was created to facilitate a more efficient and consistent prosecution policy and to provide for independent decision-making in the prosecution system.²³ Enabling the DPP to prosecute sub judice contempt would bring the prosecution of sub judice contempt in line with that followed for all other serious offences. Moreover, because the functions of the DPP include the formulation of guidelines with respect to the prosecution of offences,²⁴ giving DPP the responsibility over sub judice cases will ensure the adoption of a consistent prosecution policy for such cases, which will take into account and be uniform or at least congruous with the policy for all other offences.

12.18 However, sub judice contempt is a crime which pertains to the administration of justice and the Attorney General is ultimately responsible for the maintenance of the system of the administration of justice. This suggests that the prosecution of sub judice contempt cases as a means of protecting that system should be reserved for the Attorney General. The nature of sub judice contempt should not, however, necessarily exclude the DPP from prosecuting this particular offence because he or she does have the authority to prosecute certain offences designed to protect the administration of justice.²⁵ More specifically, conduct which constitutes sub judice contempt at common law may, at the same time, amount to the offence of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW), provided actual intent to pervert the course of justice is proved. It may be argued that it is inconsistent to make the DPP the primary prosecution officer for one offence but not for the other.

12.19 Another reason for conferring the power to prosecute sub judice contempt on the DPP is to ensure the element of independence from political influence in such prosecutions. Sub judice contempt can often have political dimensions, for example, because the alleged contemnor is a political figure, or the government of the day has a special interest in the trial because it is politically sensitive or highly controversial, or it is feared that a prosecution might not be instituted in order not to alienate a powerful media organisation or commentator. The Attorney General is an elected member of Parliament and is also a member of Cabinet (in NSW). As such, he or she exercises political functions and is therefore vulnerable to the perception that his or her decisions to prosecute alleged acts of sub judice contempt may be influenced by political considerations. In contrast, the DPP is a statutory appointee whose office was created with a view to insulating prosecutions from the political process and ensuring independence with respect to decisions concerning prosecutions.²⁶

12.20 On the other hand, it may be argued that the DPP may also be susceptible to the perception of partiality in sub judice prosecutions. Where the DPP commenced the criminal proceedings to which the alleged contempt relates, he or she may appear to be partisan when it comes to determining whether contempt proceedings should also be commenced. For example, in a case involving statements by a police officer or one involving material published by a media organisation which are favourable to the case of the prosecution, a decision by the DPP not to prosecute may be perceived as resulting from bias.

The Commission’s tentative view

12.21 The Commission is of the tentative view that there is no need to change the current position at common law, whereby the Attorney General is the main law officer charged with the prosecution of sub judice contempt cases and the DPP has power to prosecute contempts which relate to cases in which the DPP is a party. Such an arrangement recognises the complementary roles of the Attorney General as the primary officer charged with the maintenance of the due administration of the justice system and of the DPP as the primary prosecution officer of the government. Moreover, because both the Attorney General and the DPP are susceptible to accusations of partiality in sub judice contempt prosecutions, it is important to maintain the standing of both officers in such cases to ensure that where the circumstances of a case are such that one of them becomes vulnerable to perceptions of bias, the other may be relied upon to take up the prosecution. Furthermore, a system of allocating the primary responsibility for the prosecution of sub judice contempt proceedings to the DPP may result in further pressure on the resources of this office.

Right to prosecute: private individuals

12.22 Any person may apply to the court for an order punishing a contempt, although usually the applicant is a person aggrieved by the relevant conduct.²⁷ In particular, any party to litigation, including a corporation, may take proceedings for contempt to protect that litigation.²⁸ It seems that a litigant may apply in person to the court.²⁹ Part 55 rule 11(4) of the New South Wales Supreme Court Rules preserves this right³⁰ by providing that the power of the Registrar, by order of the Supreme Court, to institute contempt proceedings “does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.”

12.23 The view has been expressed that the responsibility for the instigation of contempt proceedings should be in the exclusive hands of public officers such as the Attorney General and that private persons should not have this right. In Re Hargreaves; Ex parte Drill,³¹ where the accused, who was being tried in connection with racing fraud, moved for a writ of attachment against the editor of the newspaper which published an article about the criminal proceedings, Lord Goddard CJ declared: “I have said on more than one occasion that it would be a good thing if such motions were made on the application of the Attorney General. Such motion should only be made by the law officers.” The 1959 report by Justice, the British section of the International Commission of Jurists, agreed with this view in order to “put an end to proceedings for contempt by the unworthy and malicious simply for the purpose of winning costs which had been so common hitherto.”³² The report also argued that confining the power to institute contempt to the Attorney General:

is a powerful guarantee for the due administration of justice. It ensures that when a newspaper errs and the error is brought to the attention of the Attorney General proceedings can be instituted irrespective of the parties to the litigation in question, and that a responsible decision whether to prosecute or not will be taken in every case. We conclude, accordingly, that no proceedings for criminal contempt, save contempts in facie the court, should be instituted except by or with the consent of the Attorney General.³³

12.25 The Phillimore Committee’s view was not adopted when the Contempt of Court Act 1981 (UK) was passed as its s 7 curtailed the common law right of the individual to instigate contempt cases by providing that “[p]roceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it”. This section was introduced to “ensure a high degree of uniformity in decisions on whether to take proceedings”.³⁵ As a result of s 7, if the Attorney General declines to take up a strict liability case, that fact will prevent a complainant from seeking to persuade the court that there has been a contempt. This requirement in s 7, however, applies only to publications which breach the strict liability rule. The Contempt of Court Act 1981 (UK) expressly preserves liability at common law for contempt of court in respect of conduct intended to impede or prejudice the administration of justice.³⁶ Consequently, if it is alleged that mens rea is present and a common law contempt has been committed,³⁷ it appears that the consent of the Attorney General need not be obtained to instigate the contempt proceedings.

12.26 The ALRC, in its Report on Contempt, rejected the policy underlying the restriction imposed by s 7 of the Contempt of Court Act 1981 (UK) on the right of the individual to bring contempt cases, arguing that “the accused will almost inevitably suffer in terms of delay and legal costs, and may well feel that, if the official prosecution authorities do not set contempt proceedings in motion, he or she should have the right to do so.”³⁸ It also believed that there are sufficient safeguards against possible abuse of the right of private prosecution. Furthermore, it disagreed with the recommendation of the Phillimore Committee that the Attorney General be notified before any private prosecutions are begun.³⁹

12.27 Like New South Wales, most of the other Australian states and territories preserve the right of the individual to instigate contempt proceedings.⁴⁰ Victoria, however, has revoked this right, subject to certain specific exceptions. Section 46(1) of the Public Prosecutions Act 1994 (Vic) provides:

Despite any provision to the contrary by or under any other Act or at common law but subject to sub-section (5), only the Attorney General may apply to a court for punishment of a person for a contempt of court.⁴¹

12.29 The reason behind the virtual abolition of the right of private litigants to move the courts for relief in respect of alleged criminal contempts is unclear because when the Victorian Attorney General introduced the Public Prosecutions Bill 1994 (Vic) in the Victorian Parliament, she gave no explanation of the policies underlying it.⁴⁴

12.30 The position in Victoria is more restrictive than that in the UK, where the right of an individual to commence strict liability contempt proceedings is subject to a requirement of consent of the Attorney General and where no such requirement is imposed with respect to common law contempts. By contrast, no form of contempt proceedings (including sub judice contempt), except those specified in s 46(5) of the Public Prosecutions Act 1994 (Vic), may be commenced by an individual in Victoria, with or without the consent of the Attorney General. This position is more akin to the view expressed by Goddard CJ in Re Hargreaves; Ex parte Drill that the power to instigate contempt proceedings should be in the exclusive hands of the Attorney General or other law officer.⁴⁵

12.31 There is also the position expressed in some judgments that a distinction should be made between criminal contempts that relate to criminal proceedings and those that relate to civil proceedings. It is said that while the Attorney General should take responsibility for contempt cases relating to criminal cases, an individual who is a party to civil proceedings should have the right to move the court to punish a contempt of such proceedings. Lord Denning MR in Attorney General v Times Newspaper Ltd⁴⁶ and Justice Winneke in Broken Hill Pty Co Ltd v Dagi⁴⁷ invoked longstanding practice as the justification for retaining the right of a party to civil proceedings to commence contempt action. Lord Denning explained this distinction as follows:

When a man is on trial in a criminal court, the Crown itself is a party. It is concerned itself to ensure the fairness of the trial. It is only right and proper that the Attorney General should take the responsibility of proceeding for contempt of court. But a civil action is different. The Attorney General will, as a rule, have no knowledge of the course of a civil action – or of any interference with it – unless it is brought to his knowledge by one of the parties to it. If the Attorney General then himself takes proceedings for contempt, it means that he is putting the authority of the Crown behind the complaint. No doubt he can do so if he thinks it proper to do so. But I venture to suggest that he should not do so except in a plain case. When the case is open to controversy or to argument, it would be better to follow the previous practice. The complainant should be left to take proceedings himself at his own expense and risk as to costs.

The Commission’s tentative view

12.33 The Commission is of the tentative view that the right of individuals to institute sub judice contempt proceedings should be retained irrespective of whether the alleged contempt relates to criminal or civil proceedings. The Commission acknowledges that sub judice contempt is primarily an offence aimed at maintaining the due administration of justice and the imposition of criminal sanctions is to deter conduct by bodies such as media outlets from engaging in conduct which creates a substantial risk of prejudice to the fairness of particular pending proceedings. This suggests that it is most appropriate that public officers responsible for the administration of justice, such as the DPP and the Attorney General, have the power to instigate sub judice contempt proceedings. However, parties to criminal or civil proceedings to which the allegedly contemptuous act relates have an equally compelling stake in ensuring the fairness of the trial since after all, the outcome of these proceedings will have a direct impact on them. In particular, the Commission cannot dismiss lightly the interest of the accused in securing a fair criminal trial, where his or her liberty is at stake. Even where no actual prejudice to the main proceedings is caused by the contemptuous publication, the private parties will nevertheless suffer in terms of delay and costs, and if the official prosecution authorities do not set contempt proceedings in motion, the private parties should have the right to do so.

12.34 The main reason for the view that private prosecution of contempt should be abolished or restricted by, for example, a requirement for the consent of the Attorney General is to prevent frivolous and vexatious prosecutions or those which are an abuse of the process because they have been instituted for an improper motive.⁴⁹ However, the Commission is not aware that there is currently a problem of private parties using contempt proceedings for vexatious or harassment or other improper purposes. This is probably because the substantial costs involved in contempt litigation serve to discourage such types of prosecutions. Another deterrent is possible liability in tort for malicious prosecution⁵⁰ or for collateral abuse of legal process.⁵¹

12.35 Even if the problem of frivolous prosecutions does arise in the context of sub judice contempt, the Commission notes that courts have an inherent jurisdiction to prevent abuses of process both in relation to the commencement of proceedings and in relation to the conduct of pending proceedings where they are conducted in a vexatious and time wasting manner.⁵² If proceedings are being pursued for an improper purpose, the court may grant a permanent stay of the proceedings.⁵³ The jurisdiction to grant a stay of a criminal prosecution has a dual purpose of preventing an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair.⁵⁴ This power of the courts at common law is confirmed by Part 13 rule 5 of the Supreme Court Rules 1970 (NSW) which states that where in any proceedings, it appears to the Supreme Court that no reasonable cause of action is disclosed or the proceedings are frivolous or vexatious, or the proceedings are an abuse of the process of the court, the court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief. In addition, the Supreme Court has the authority to order that the whole or any part of a pleading be struck out if the pleading discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment or delay in the proceedings or is an abuse of the process of the court.⁵⁵ Furthermore, the Supreme Court has certain powers to deal with vexatious litigants (defined as those who habitually and persistently and without reasonable ground institute vexatious legal proceedings), such as the power to order that the vexatious litigant shall not, without leave of court, institute any legal proceedings in any court and that any legal proceedings instituted shall not be continued.⁵⁶

12.36 The possibility that the right of individuals to institute contempt proceedings might be abused is not a sufficient argument for its abolition, given that this scarcely ever happens and that the courts have extensive powers to deal with such a situation. Nor is it necessary to introduce a consent requirement prior to the exercise of such right. It is better to leave the assessment of the merits of a prosecution or the motives behind its institution with the courts rather than requiring law officers, such as the Attorney General or the DPP to screen private prosecutions, which is unnecessary and is unduly restrictive of the right of private individuals to prosecute for sub judice contempt.

12.37 The Commission, however, would propose that a private individual who intends to initiate and maintain a prosecution for criminal contempt should notify the Attorney General and the parties to the relevant proceedings (if any).⁵⁷ The notice requirement would have the desirable effect of bringing the matter to the attention of the Attorney General and, where appropriate, the State or Commonwealth Director of Public Prosecutions, without giving these public officers the power to veto the individual’s right to prosecute. It would contribute towards preventing duplication of the efforts to prosecute the same offence and consequently save the resources of the stakeholders, including the prosecution authorities, the courts and the person accused of committing contempt. It would also allow better coordination of efforts between individuals and law officers, should the latter choose to be involved. It would, for example, enable the Attorney General to intervene in the proceedings, if he or she decides it appropriate to do so. Finally, the Commission notes that under the Supreme Court Rules 1970 (NSW), if the Supreme Court through the registrar prosecutes for contempt on referral by individuals, the registrar must notify the Attorney General.⁵⁸ There is no policy reason why the relevant public law officers should be notified when the court prosecutes the contempt but not when a private individual does so.

PROPOSAL 24

The Supreme Court Rules 1970 (NSW) Part 55 rule 11 should be amended to require that a private individual who applies to the court to commence proceedings for criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved.

12.38 The courts may act on their own motion to deal with cases on contempt,⁵⁹ including contempt by publication.⁶⁰ This has been described as an exceptional power, to be invoked sparingly and only in clear cases.⁶¹ The departure from ordinary safeguards in such proceedings, where the court is essentially both accuser and adjudicator, is justified by the overriding public interest in the safeguarding of the administration of justice from interference by swift deterrent action by the court itself.⁶²

12.39 Part 55 rule 11(1) of the Supreme Court Rules 1970 (NSW) provides that “[w]here it is alleged, or appears to the court on its own view, that a person is guilty of contempt of the court or of any other court, the court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of contempt.” For the purposes of this rule, the Crown Solicitor acts as solicitor for the registrar and briefs counsel, in accordance with long accepted practice which predates the Supreme Court Act 1970 (NSW).⁶³ Although the proceedings remain technically the proceedings of the court in which the court’s officer is responsible for the giving of relevant instructions, the proceedings are conducted in a practical sense in the same way as if initiated by the Attorney General.⁶⁴

12.40 It has been held that a person does not, by this rule, have a right to apply to the court requesting it to commence and maintain proceedings for criminal contempt. The commencement of such proceedings is entirely a matter for the court’s decision taken of its own motion.⁶⁵ Hence, a party, witness, juror, a court or police officer or some other person may inform the court of an alleged contemptuous conduct but the judge may decide to do nothing because the matter is too trivial or best dealt with by a warning or the material put before him or her is unsatisfactory or because he or she considers it more appropriate that the Attorney General should initiate proceedings.⁶⁶

12.41 Where it appears to the District Court, Local Court or any other court that a person is guilty of contempt before such court, it may refer the matter to the Supreme Court which may then exercise its power under Part 55 rule 11(1) of the Supreme Court Rules (NSW) to direct the Registrar to commence proceedings for contempt of court.⁶⁷

12.42 The Rules of Court of the other Australian jurisdictions also contain provisions empowering their respective Supreme Courts to initiate contempt proceedings.⁶⁸ And in the United Kingdom and Victoria, where legislation locates the authority to initiate most forms of contempt proceedings in the Attorney General and curtails the right of the individual to do the same, the relevant laws have expressly preserved the power of the courts to initiate such proceedings on their own motion.⁶⁹

12.43 The ALRC, in its report on contempt, recommended that courts should retain the power to initiate sub judice contempt proceedings. It stated that the exercise of official discretions to prosecute may result in variations and discrimination in prosecutions. It was of the view that one way of dealing with this problem is by maintaining alternative channels of prosecution, such as giving the court the power to initiate contempt prosecutions. It also stated that while it is unusual for the court to set criminal proceedings in motion, “it is justifiable in this instance because of the inherent link between contempt and the conduct of court proceedings.”⁷⁰

The Commission’s tentative view

12.44 The Commission is of the tentative view that no change is required to the present law on the power of the Supreme Court to direct the registrar to commence proceedings for the punishment of criminal contempt, including sub judice contempt. It agrees with the view expressed by the ALRC about the need for a medium of prosecution which supplements that provided by the traditional prosecution authorities, ie the Attorney General in contempt cases and the DPP in most other offences. Where these officials fail to act on a publication which the court considers to be prejudicial to pending proceedings, the court should be in a position to commence prosecution on its own motion. Moreover, private parties affected by the prejudicial publication who are unable to convince the prosecution officers to prosecute and who may not have the resources to prosecute themselves should have the alternative recourse to the Supreme Court. Individuals who cannot afford to prosecute may request the court to do it for them.

The prosecution of contempt relating to a Commonwealth offence being tried in a State court

12.45 The Director of Public Prosecutions for the Commonwealth has been held to possess the power to commence proceedings in an appropriate State court for the punishment of any contempt relating to the trial of a federal offence in which he or she is the prosecuting authority.⁷¹ This power to institute proceedings is, it would seem, concurrent with those of the Attorney General of the Commonwealth (which would seem to extend to any alleged contempts relating to federal proceedings in any court) and of the Attorney General of the relevant State.⁷²

12.46 At the same time, courts have confirmed the power of a State Attorney General to prosecute contempt in relation to a suit heard by a State court under federal jurisdiction invested in that court by statute.⁷³ Hence, for example, the State Attorney General may prosecute the publication of material relating to pending criminal proceedings involving the importation of narcotics goods, in violation of the Customs Act 1901 (Cth) and the Crimes Act 1914 (Cth).⁷⁴

JURISDICTION: TRIAL

12.47 Since its creation as a Division of the Supreme Court in 1965, the Court of Appeal has had jurisdiction under the Supreme Court Act 1970 (NSW)⁷⁵ to hear sub judice contempt cases. Prior to the establishment of the Court of Appeal, sub judice contempt proceedings were heard by the Supreme Court which meant all the judges sitting together or three or more judges sitting in banc.⁷⁶ However, from 1997, this power has been transferred to the Common Law Division of the Supreme Court.⁷⁷ Consequently, sub judice contempt proceedings are now heard by a Supreme Court judge of the Common Law Division rather than by three judges of the Court of Appeal.

12.48 When the Courts Legislation Amendment Bill 1996 (NSW) was introduced and debated in the New South Wales Parliament in 1996, the reason for the proposed change was not discussed.⁷⁸ However, it appears to be the result of the decision in the case of Young v Registrar, Court of Appeal.⁷⁹ In that case, the Court of Appeal discussed the provisions of the then s 48(2)(i) of the Supreme Court Act 1970 (NSW) which assigned to the Court of Appeal proceedings “for the punishment of contempt of the [Supreme] Court or of any other court” (including sub judice contempt), subject to a limited right of the Court in a Division to deal with limited aspects of contempt.⁸⁰

12.49 One of the issues raised in the case was whether the then s 48(2)(i) of the Supreme Court Act 1970 (NSW) contravened article 14.5 of the International Covenant on Civil and Political Rights (the “ICCPR”), which Australia has ratified. Article 14.5 provides: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” The contemnor in that case argued that because the matter was decided by the Court of Appeal as an original trial court and there is no automatic appeal to the High Court from such a decision, he was deprived of his human right of appeal as guaranteed by the ICCPR.

12.50 Justice Kirby first restated the established common law rule that international law does not form part of domestic law until incorporated by Parliament or a decision by judges but is nevertheless a legitimate and important influence on the development of common law. He then expressed the opinion that contempt is a crime within the purview of article 14.5 and that the special leave application to the High Court from the decision of conviction by the Court of Appeal is not a sufficient compliance with the review which article 14.5 of the ICCPR contemplated.⁸¹ In reaching the latter conclusion, Justice Kirby observed that the purpose of article 14.5 is to prevent miscarriages of justice arising out of errors of law or errors of fact-finding. In the nature of the consideration of a special leave application to the High Court, it is impossible and probably inappropriate to review the facts of a criminal conviction. Because there are listed on any given day a large number of special leave applications, the High Court necessarily must have regard to the public importance and national significance of the point to be argued. If the special leave is not granted, the decision of the Court of Appeal was effectively final. In the result, Justice Kirby did not regard the review by the special leave application to the High Court as a sufficient compliance with article 14.5 of the ICCPR. However, he conceded that the ICCPR could not be invoked to invalidate s 48(2)(i) of the Supreme Court Act 1970 (NSW).⁸² He instead called for its reform by Parliament.⁸³

The Commission’s tentative view

12.51 A person convicted by the Court of Appeal of contempt under the former arrangement did not have an automatic right of appeal but could only apply for special leave to the High Court under s 35A of the Judiciary Act 1903 (Cth). The jurisdiction to grant special leave is discretionary in nature and it is not sufficient for the applicant to make out a prima facie case of error.⁸⁴ Because of the number of applications for special leave, it is inevitable that a careful choice must be made having regard to the duty which the court has to develop and clarify the law. The High Court must necessarily place greater emphasis on its public role in the evolution of the law than upon the private rights of the litigants before it. The High Court will also refuse to grant special leave to appeal in criminal cases upon questions of fact.⁸⁵ Consequently, a person convicted of contempt under the former system could not have the findings of fact made by the Court of Appeal reviewed. Moreover, even when only questions of law are involved, the accused must show that there is some special feature of the case which warrants the attention of the High Court. This was, in the Commission’s view, a severe restriction on the ability of a person convicted of contempt to get the conviction by the Court of Appeal reviewed by a higher court.

12.52 On the other hand, one advantage of the prior arrangement where sub judice contempt proceedings were heard by the Court of Appeal is that three judges examined the issues. The collective wisdom of three judges may result in a fairer decision for the accused and the judgments delivered by each of the judges of appeal in each case may also contribute to the development or the better understanding of the law. The Commission is, however, not persuaded by this argument because s 101(5) and (6) of the Supreme Court Act 1970 (NSW) confer a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in proceedings relating to contempt, other than where the proceedings resulted in the accused being found not guilty of contempt. Consequently, the accused now has open to him or her an appeal before three judges of the Court of Appeal.

12.53 The Commission is not convinced that there is a need to revert to the former arrangement as it is aware of no practical difficulties arising from the recent assignment to the Common Law Division of the Supreme Court of proceedings for sub judice contempt. Moreover, the Commission finds persuasive the concerns raised by Justice Kirby in Young v Registrar about the absence of an effective right of appeal under the former arrangement and its possible inconsistency with article 14.5 of the ICCPR.⁸⁶ The Commission considers it desirable to continue with the present procedure where a single judge of the Common Law Division of the Supreme Court hears and decides the case and a person who has been convicted for sub judice contempt has an automatic right to appeal the conviction. However, the Commission welcomes submissions on the matter, including any evidence about the practical workings of the new process.

MODE OF TRIAL

12.54 One of the most distinctive characteristics of the law of criminal contempt is that the offence is dealt with summarily and hence without the assistance of a jury. As Lord Justice Lindley put it in O’Shea v O’ Shea and Parnell,⁸⁷ it is “the only offence that I know of, which is punishable at common law by summary process.” Indeed in the case of contempt in facie curiae or in the face of the court itself, there are no formalised proceedings as the offender may be fined or committed to prison. In the case of other forms of contempt, including sub judice contempt, the proceedings are more formal. For example, such proceedings in New South Wales are commenced by way of summons.⁸⁸ Evidence in support of the charge for contempt is given by affidavit, unless the court permits it to be given in some other form.⁸⁹ Even so, such proceedings are still summary in the sense that the defendant does not have the right to a jury trial.

Historical background of the summary procedure for contempt

12.55 The leading authority for proceeding summarily in all categories of contempt (including sub judice contempt), other than contempt in the face of the court, is the case of R v Almon.⁹⁰ In that case, a rule nisi was obtained to attach Almon after he published a pamphlet containing passages critical of the conduct of Lord Mansfield, Chief Justice of the Court of King’s Bench. The judgment was prepared by Justice Wilmot⁹¹ but was never delivered because the rule nisi was incorrectly titled and counsel for Almon refused to consent to an amendment. Although new proceedings were begun, they were dropped following a change of government.

12.56 The undelivered judgment written in 1765 by Justice Wilmot was published by his son in 1802, 37 years after the proceedings in Almon’s Case. In response to the contention of counsel for Almon that the court should not proceed by way of attachment, but should leave the offence to be prosecuted and punished by indictment or information, Justice Wilmot wrote the following:⁹²

The power, which the courts of Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every court of Justice, whether of record or not to fine and imprison for contempt to the court, acted in the face of it … And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempts out of court, stands upon the same immemorial usage as supports the whole fabrick of the common law; is as much the ‘lex terrae,’ and within the exception of Magna Carta, as the issuing any other legal process whatsoever.

I have examined very carefully to see if I could find out any vestiges or traces of its introduction, but can find none. It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it, and therefore cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say, that the mode of proceeding by attachment stands upon the very same foundation and basis as trial by jury do – immemorial usage and practice; it is a constitutional remedy in particular cases, and the Judges, in those cases, are as much bound to give an activity to this part of it, or any violence, or abuse of the ministers, or others, employed to execute it.

• 1313. The defendant attacked the plaintiff in the hall of the palace of Canterbury in the presence of the Justices. A jury of law-worthy men who were in the hall was constituted. The jury found the defendant guilty and sentenced him to pay the plaintiff forty marks and to imprisonment. It was also ordered that all his lands and tenements and his foods and his chattel and his goods should be taken into the King’s hand and his wife and children be ousted.⁹⁷
• 1331. A conviction for contempt in the face of the King’s Bench in Ireland was reversed by writ of error because the contempt was not tried by jury.⁹⁸
• 1358. The defendant seized and assaulted the plaintiff who was on her way to Westminster to prosecute a case as guardian of her son against the defendant. The jury found the defendant guilty and sentenced to imprisonment and to pay the plaintiff the amount of ten marks.⁹⁹
• 1638. The defendant, who openly accused the justices of high treason while the Courts of Common Pleas King’s Bench, and Chancery, were sitting, was indicted and the jury of knights and esquires found him guilty.¹⁰⁰
• 1680. The defendant was convicted by a jury on an information for speaking scandalous words against Chief Justice Scroggs of the King’s Bench.¹⁰¹

Summary procedure established

12.59 Despite the fact that Wilmot’s undelivered judgment in Almon’s case was a mere opinion which did not possess the binding effect of a decision, it came to be treated as the leading case on the subject. Courts in England,¹⁰⁸ Australia¹⁰⁹ and other common law countries¹¹⁰ have cited Almon’s case on many occasions as authority for the summary procedure used to punish contempt.

12.60 The alternative process of trying criminal contempts on indictment has fallen into disuse¹¹¹ and the last known case in England where the procedure of indictment was used was in 1902 in the case of R v Tibbits.¹¹² In New South Wales, there is no recorded case this century of a contempt case being prosecuted on indictment.¹¹³ In the case of Registrar of Court of Appeal v Willesee,¹¹⁴ a case of sub judice contempt, it was contended that the proper way in which proceedings for contempt not committed in the face of the court should be prosecuted was by way of information, so that the alleged contemnor could have the benefit of trial by jury. The New South Wales Court of Appeal held that summary trial is now the ordinary and normal procedure for contempt. Consequently, the summary procedure has, for practical purposes, superseded trial by jury.¹¹⁵

12.61 The issue was also dealt with by the High Court in James v Robinson,¹¹⁶ a case also involving sub judice contempt. Counsel for the publisher, editor and printer who were found guilty of contempt by the Supreme Court of Western Australia argued before the High Court that even if the publications amounted to contempts, the only available procedure was by way of information and indictment. The argument rested on criticisms of the undelivered judgment of Justice Wilmot in Almon’s case. The High Court rejected the argument and held that it is futile to seek to ascertain whether the present law rests on sound historical basis because it is so firmly established that Parliament alone can effect an alteration if such is necessary.¹¹⁷ Justice Windeyer¹¹⁸ quoted with approval the following passage from a US case¹¹⁹ where Justice Frankfurter stated:

[t]he fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions.

12.63 More recently, the High Court rejected the argument that proceedings for scandalising the Family Court are required by s 80¹²¹ of the Constitution to be tried by a jury and not by a judge of the Family Court alone.¹²² The majority¹²³ of the High Court adhered to the current interpretation of s 80 which states that this section is not a guarantee of trial by jury for all serious offences against a law of the Commonwealth, but applies only where there is a trial by indictment, and leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily.¹²⁴ Chief Justice Gleeson and Justice Gummow confirmed, in their joint judgment, that summary procedure for contempt of court is now the usual procedure:

Although the offence of contempt by scandalising the court was originally triable on indictment, since the latter part of the 18th century, courts have adopted the general practice of punishing all contempts by summary procedure, which largely superseded trial by jury. Thus, in 1987, the New South Wales of Appeal said that “the proper procedure by which to prosecute criminal contempt is now by summary proceedings, and not indictment”. The practice had its origin in an undelivered draft judgment of Wilmot J in R v Almon. The soundness of the that opinion has been subjected to scholarly criticism, but the practice is well-established, and was so at the time of Federation. In 1900 the Queen’s Bench Division, in R v Gray, held that the publication of a newspaper article which contained scurrilous abuse of a judge was a contempt punishable on summary process. It is not necessary for present purposes to decide whether Hutley AP was strictly correct when he said, in 1984, that an indictment in respect of contempt was for all practical purposes obsolete. It is sufficient to observe that summary procedure is, and has been for at least a century, the usual procedure.¹²⁵ [Citations omitted.]

12.64 The alternative to the present mode of summary procedure in sub judice contempt is to treat the case as a normal criminal trial by prosecuting the accused by way of indictment so that the accused can have the benefit of a trial by jury. The main arguments in support of this procedure are: (a) speed in hearing the contempt case is not always essential; and (b) certain questions of primary fact are best dealt with by a jury.

Speedy response not always essential

12.65 The rationale for summary procedure for contempt cases is that it provides a speedy and efficient means of trying contempt which the ordinary criminal process could not do.¹²⁶ Its practical justification lies in the fact that in general, “the undoubted possible recourse to indictment and criminal information is too dilatory and too inconvenient to afford any satisfactory remedy.”¹²⁷ This is true especially in contempt committed in the face of the court where the contemnor has to be dealt with swiftly to prevent them from further disturbing the court proceedings. Witnesses who refuse to answer questions, persons in court who interrupt the proceedings by insulting the judge, shouting or making disturbance, persons in or out of court who threaten jurors, witnesses or counsel must be punished swiftly and deterred from further interfering with the trial.

12.66 The situation with a publication which may be in breach of the sub judice rule is, however, different. The institution of contempt proceedings should be made immediately after the publication of the material which is alleged to have a substantial risk of or a tendency to cause prejudice to the pending proceedings. This is to alert the persons responsible for the publication, as well as others who are inclined to publish analogous material, of the possible harm that the publication has created and to prevent further similar publications. However, in New South Wales, while the practice has been for the contempt proceedings to be initiated as soon as practicable, the hearing is adjourned until after the conclusion of the related criminal proceedings.¹²⁸ The reason for this is that the media publicity attaching to the contempt proceedings would add to the possibility of unfair prejudice in the criminal trial.¹²⁹ If the publication has in fact caused some harm to pending proceedings by creating prejudice in the minds of the jurors, the hearing of the contempt case could add to or emphasise such harm. The publicity which will ensue from the hearing of the contempt case will only draw more attention to the original publication which had the risk or tendency to create the prejudice.¹³⁰

12.67 It therefore appears that courts in New South Wales consider it more important to ensure that no further harm is caused to related pending proceedings than to determine immediately whether the sub judice rule has been breached and swiftly punishing those responsible for any breach. If harm was indeed done by the publication, a quick finding that the persons responsible for the publication were guilty of contempt will not undo the harm. Consequently, it can no longer be argued that a summary process is necessary to ensure a speedy response to sub judice contempt.¹³¹

Certain issues better dealt with by jury

12.68 Juries are used to assess and determine the facts in certain proceedings, especially criminal trials, because they are seen as able to do this better than a judge. The members of a jury are able to bring to their task a range of backgrounds and experiences far broader than that possessed by a judge. A group which represents a cross-section of the community with varied experiences in life and of the behaviour of people is considered better able to understand and appraise human conduct than a single judge.¹³² It has been claimed that juries are effective fact-finders because: (a) a jury brings to bear on its decision a diversity of experiences; (b) a jury deliberates as a group and therefore has the advantage of collective recall; and (c) the jury’s deliberative process contributes to better fact-finding because each detail is explored and subjected to conscious scrutiny by the group.¹³³

12.69 In sub judice contempt cases, there may be issues which may be best settled by a jury. One which is usually the main issue to be resolved is whether, according to the predominant test for liability for sub judice contempt, the publication has a real and definite tendency to prejudice or embarrass particular proceedings.¹³⁴ The alternative to this so-called tendency test is the substantial risk test, which is preferred by the Commission.¹³⁵ According to this test, a publication would amount to contempt if it is shown to have a substantial risk of interference with particular legal proceedings.¹³⁶ The tendency or substantial risk is assessed objectively at the time of the publication¹³⁷ and in the light of the nature of the publication and of all relevant surrounding circumstances.¹³⁸ The whole matter must be considered, and its tendency to prejudice or embarrass must be considered as a whole.¹³⁹ The test for determining the meaning of the words alleged to constitute contempt is the effect upon an ordinary reasonable member of the community.¹⁴⁰ Because each juror is chosen precisely because he or she represents the views of the ordinary members of the community, it is arguable that a jury is in a better position than a judge to apply the required test and determine whether the publication, in light of all the circumstances, is likely to have a prejudicial effect on jurors hearing the case to which the publication relates to. It is significant that in the law of defamation, where the meaning of the publication is also tested by the ordinary member of the community standard, the question of whether a publication did in fact convey the meaning the plaintiff contends and whether the publication was defamatory of the plaintiff are questions of fact for the jury.¹⁴¹ It may be argued that there is a greater need to use a jury to apply a similar test to a parallel issue in a sub judice contempt case because of the criminal sanction it attracts.

12.70 Another issue where jury input may be desirable concerns the element of fault. Although it is settled law that intention to interfere with the administration of justice is not an essential ingredient of liability under the sub judice rule,¹⁴² it has likewise been ruled that intention may be relevant to liability and sentence.¹⁴³ There have, for example, been dicta which suggest that it may be open to persons responsible for an offending publication to escape liability by showing that neither they, nor any person for whose conduct they were vicariously responsible, had any knowledge or any reason to know of the existence of the legal proceedings allegedly prejudiced.¹⁴⁴ Nevertheless, as discussed earlier, the law as it stands is not clear as to the exact role of fault in sub judice contempt and the Commission proposes legislative reform to make it clear that fault should be an element of liability.¹⁴⁵ It proposes, for example under Proposal 7, a defence that the person with contempt did not know a fact that caused the publication to breach the sub judice rule and before the publication was made, took all reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule. It would be appropriate for a jury to assess the type of evidence which would be raised and tested in relation to the proposed defence.

Arguments for retaining summary procedure for sub judice contempt

12.71 Although it is universally recognised that contempt is criminal in nature, the policy justification for treating it as an offence sui generis lies in its nature.¹⁴⁶ It is the duty of judges to see that justice is administered in the courts. The imposition of this duty carries with it the power to act in protection of justice, if its fair and effective administration is threatened. Such power must encompass the authority to try summarily those accused of interfering in any manner with the administration of justice. It is therefore the peculiar character of the offence – that it strikes at the foundation of the administration of justice – which commends the summary mode of dealing with it.

12.72 It may also be argued that jury trial in sub judice cases is not appropriate because in many cases, the primary facts – the fact of publication and the pending nature of the proceedings allegedly prejudiced – are either undisputed or are matters which the judge can very easily determine by himself or herself. Moreover, it is arguable that what constitutes prejudicial publication – publication which has a tendency to or a substantial risk of prejudice in relation to pending proceedings – has been the subject of a considerable amount of judicial interpretation and has therefore acquired a technical meaning more intelligible to judges than to jurors. Furthermore, sub judice contempt cases require a balancing of certain principles such as freedom of expression, open justice, the right to fair trial and the preservation of public confidence in the administration of justice. These are legal notions better understood by judges who are also, it may be argued, in a better position to discharge the function of achieving the right balance among these competing principles.

12.73 Some of the general criticisms of the jury system may also be used as arguments for the retention of the current procedure. First, the jury is an expensive method of trial. Not only must the twelve jurors be paid but so must the others who form the pool from which the jury is selected. Court personnel are employed to administer the jury system at all stages. Second, there exists the risk of erroneous or perverse verdicts by jury as a result of bias by one or some of the jurors or by ignorance or lack of competence by any of them. Thirdly, such a system will not contribute to the attainment of certainty and predictability in this area of law because juries give “global” verdicts without reasons. In contrast, the reasons given by judges in their judgments as to why a publication is contemptuous or not serve to guide all those who might have an interest in this area of law, including the media, parties to pending proceedings who may be subjected to media publicity, lawyers, prosecutors and other judges.

12.74 Finally, there is the argument of long-standing practice. There is no recorded case this century in New South Wales of a contempt case being tried other wise than by summary procedure. It has been used in contempt cases for such a long time now that practitioners have become accustomed to summary procedure in contempt cases without any practical difficulties.

Recommendations of other law reform bodies

12.75 In the Phillimore Report, it was stated that the “reason and justification for the use of the summary procedure is the urgency with which the conduct may need to be dealt” and it was considered that “as matter of principle the contempt jurisdiction should be invoked only where: (a) the offending act does not fall within the definition of any other offence; or (b) where urgency or practical necessity require that the matter be dealt with summarily. [T]hese principles should govern the use of this remedy.”¹⁴⁷ However, the Committee recommended that no change be made to the procedure for contempt.¹⁴⁸

12.76 The ALRC recommended that alleged breaches of the sub judice rule, like all other forms of contempt, should be referred to the ordinary criminal courts. Sub judice contempts should be indictable offences triable summarily with an option by either the prosecutor or the accused to insist on a trial by jury. If neither party wishes this, the matter should go before a magistrate for summary trial, subject to his or her being satisfied that this was appropriate in the particular case.¹⁴⁹

12.77 The Canadian Law Reform Commission recommended that everyone who commits conduct which amounts to sub judice contempt would be guilty of an indictable offence but that a superior court of criminal jurisdiction sitting without a jury shall have exclusive jurisdiction to try this offence. This view was taken because “of the desirability for expeditious judicial intervention in this area.”¹⁵⁰

12.78 The Irish Law Reform Commission recommended the retention of summary procedure for all forms of criminal contempt¹⁵¹ in accordance with the decision in State (DPP) v Walsh,¹⁵² where the Supreme Court of Ireland held that courts have jurisdiction to try charges of criminal contempt in the absence of a jury. The majority in that case appears to have relied on the fact that there were no disputed issues of fact which required the services of a jury for determination.¹⁵³ The question still remained as to whether trial by jury would be appropriate had there been live and real issues of fact. The Irish Law Reform Commission stated that it was up to the Supreme Court to clarify the problems left unsolved by the decision. In any case, it did not see any practical difficulties in the summary procedure for contempt.¹⁵⁴ Moreover, it noted the danger of perverse and unreviewable acquittals inherent in the jury system, a risk it was not prepared to extend to contempt cases. ¹⁵⁵

The Commission’s tentative view

12.79 The Commission’s tentative view is that the summary procedure for sub judice contempt cases should be retained. First, the Commission is not aware of practical difficulties with the existing procedure. By now, the practice is well-established having been the only known procedure for contempt in New South Wales, at least in the last century. Consequently, judges, legal practitioners and parties are familiar with the summary procedure for contempt. There appear to be no real pressures for change. Secondly, the Commission is of the view that the special features of the jury system which makes it effective for purposes of fact-finding may not be essential in sub judice cases because many of the primary facts – the fact of publication and the pending nature of the proceedings allegedly prejudiced – are usually non-controversial. Thirdly, the determination of the main issue of whether or not the publication has a substantial risk of prejudice in relation to pending proceedings has acquired a technical meaning more intelligible to judges than to jurors. Finally, sub judice contempt cases require a balancing of certain legal principles, such as freedom of expression, open justice and the right to fair trial. These are arguably better understood by judges.

APPEAL PROCEEDINGS

12.80 The legislation transferring the jurisdiction to hear proceedings for most forms of contempt from the Court of Appeal to the Common Law Division of the Supreme Court also conferred a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in a Division in proceedings that relate to contempt.¹⁵⁶ Previously, no such right existed. A person convicted of contempt had to seek special leave to the High Court for a review of the judgment or order of the Court of Appeal.

12.81 Consistent with the common law principle that there is no right of appeal from an acquittal in criminal proceedings, the legislation which gives a right of appeal from a judgment or order relating to contempt provides that it “does not confer on any person a right to appeal from a judgment or order of the [Supreme] Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt.¹⁵⁷ However, the law allows the Attorney General to submit to the Court of Appeal any question of law arising from or in connection with contempt proceedings in which the person charged with contempt is acquitted.¹⁵⁸ This reflects the right of the Crown to seek a review of a question of law in an acquittal under s 5A(2) of the Criminal Appeal Act 1912 (NSW). The determination of the Court of Appeal of the question submitted does not in any way affect or invalidate any finding or decision in the contempt proceedings.¹⁵⁹ The alleged contemnor is entitled to be heard on the question submitted.¹⁶⁰ The reasonable costs of legal representation of the alleged contemnor in these proceedings are to be paid by the Crown.¹⁶¹ The law contains mechanisms to shield the alleged contemnor from further public scrutiny¹⁶² by providing that the proceedings are to be held in camera¹⁶³ and prohibiting the publication of any report of submissions made in connection with these proceedings and any report of these proceedings so as to disclose the name or identity of the alleged contemnor.¹⁶⁴

12.82 The Commission is not aware of any practical problems arising from the recent changes to the law with respect to appeals from judgments or orders relating to contempt. However, the Commission seeks submissions on whether the jurisdiction to hear appeals should lie with the Court of Appeal or the Court of Criminal Appeal.

12.83 It would seem that because the courts have consistently recognised that a conviction for contempt is a conviction for a criminal offence,¹⁶⁵ it must follow that appeals from such convictions should be assigned to the Court of Criminal Appeal. It can be contended that the Court of Criminal Appeal would be in a better position to handle such cases because of a number of facilities provided by the Criminal Appeal Act 1912 (NSW) such as the power to grant a new trial,¹⁶⁶ the power to release the appellant on bail pending the appeal,¹⁶⁷ and the entitlement, notwithstanding an error by the trial judge, to dismiss the appeal if it considered that “no miscarriage of justice has actually occurred”.¹⁶⁸ The Court of Criminal Appeal’s greater experience in the matter of sentencing for criminal offences may also give it some advantage where sentencing is an issue in the appeal.

12.84 The Commission’s tentative view is that these considerations are compelling. It acknowledges however, that the Court of Appeal’s long experience in hearing contempt proceedings, albeit at the trial stage rather than on appeal, has given it expertise on the law of contempt, including the sentencing of those guilty of contempt.

PROPOSAL 25

The hearing and decision of an appeal from a conviction for criminal contempt should be assigned to the Court of Criminal Appeal.

1. Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Young v Registrar of the Court of Appeal (1993) 32 NSLWR 262 at 277 (Kirby J); Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 20 (Barr J).

2. Witham v Holloway (1995) 183 CLR 525 at 550; Harkianakis v Skalkos (1997) 2 NSWLR 22 at 27 (Mason J).

3. The provisions of this Act have been amalgamated with those of other sentencing laws by the Crimes (Sentencing Procedure) Act 1999 (NSW), which took effect on 3 April 2000.

4. Young v Jackman (NSW, Court of Appeal, No 237/80, 2 June 1993, unreported); Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Wood v Staunton (No 5) (1996) 86 A Crim R 183. See also Registrar of the Court of Appeal v Gilby (NSW, Court of Appeal, No 40172/91, 20 August 1991, unreported). But see contrary views in Young v Registrar of the Court of Appeal (1993) 32 NSWLR 262 at 288 (Handley J); Wood v Galea (1996) 84 A Crim R 274 at 276-277 (Hunt J).

5. The High Court, in describing the nature of contempt proceedings, stated that “[n]otwithstanding that a contempt maybe described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction …” Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 89.

6. Supreme Court Act 1970 (NSW) s 101(5) and (6).

7. See para 1.14-1.15.

8. Re Whitlam; Ex parte Garland (1976) 8 ACTR 17 at 23 (Connor J); United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 330 (Samuels J).

9. [1974] AC 273 at 311.

10. Quoted by Justice Samuels in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 330.

11. Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 (Kirby J).

12. Killen v Lane [1983] 1 NSWLR 171 at 177-178 (Moffitt J).

13. Courts Legislation Amendment Act 1998 (NSW) Sch 7. The Act commenced on 8 August 1998.

14. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 21 May 1998 at 5012.

15. Director of Public Prosecutions Act 1986 (NSW) s 7(1)(a).

16. Director of Public Prosecutions Act 1986 (NSW) s 8(1).

17. (1987) 7 NSWLR 588. This has been followed in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323.

18. (1987) 7 NSWLR 588 at 596.

19. (1992) 7 WAR 395.

20. (1992) 7 WAR 395 at 409-410 (Malcolm J).

21. Director of Public Prosecutions Act 1986 (NSW) s 27, 28.

22. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 470.

23. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 1 December 1986 at 7339.

24. See Director of Public Prosecution Act 1986 (NSW) s 13-15.

25. Examples of these offences include those in Part 7 of the Crimes Act 1900 (NSW) such as the following: perverting the course of justice (s 319); corruption of witnesses and jurors (s 321); threatening or intimidating judges, witnesses, jurors (s 322); influencing witnesses and jurors (s 323); preventing, obstructing or dissuading witness or juror from attending, etc (s 325); reprisals against judges, witnesses, jurors, etc (s 326); and perjury (s 327).

26. See Price v Ferris (1994) 34 NSWLR 704 at 707-708 (Kirby J).

27. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 445 (Rich J); European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSLWR 588 at 595; New South Wales Bar Association v Muirhead (1988) 14 NSLWR 173 at 184 (Kirby J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328-331 (Samuels J).

28. Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588 at 595-596; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 580-581 (Kirby J), at 611-612 (Mahoney J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328 (Samuels J).

29. Bevan v Hasting Jones [1978] 1 All ER 794.

30. See Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 (Kirby J).

31. [1954] Crim L R 54.

32. L Shawcross, A Report by Justice: Contempt of Court (London, Stevens & Sons, 1959) at 34.

33. L Shawcross, A Report by Justice: Contempt of Court (London, Stevens & Sons, 1959) at 34.

34. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 187.

35. See the report of the proceedings of Standing Committee A, 7 May 1981, Cols 121 ff.

36. Contempt of Court Act 1981 (UK) s 6(c).

37. Examples of publications which may be in contempt at common law include: publication by a third party in a newspaper of material which was the subject of an injunction (Attorney General v Times Newspaper Ltd [1991] 2 All ER 398); publication by a magazine of articles intended to dissuade a plaintiff from continuing with litigation brought against a magazine (Attorney General v Hislop [1991] 1 All ER 911).

38. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 469.

39. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 469.

40. Supreme Court Rules 1997 (NT) Pt 3 r 75.05; Rules of the Supreme Court 1900 (Qld) O 84 r 5; Uniform Civil Procedure Rules 1999 (SA) Pt 7 r 926; Rules of the Supreme Court 1965 (Tas) O 73 r 2; Rules of the Supreme Court 1971 (WA) O 55 r 4. There are no equivalent provisions in the Australian Capital Territory.

41. Section 46(5)(a) states that the section does not take away the right that a person may have to apply to a court for punishment for contempt of court, whether criminal or civil – (i) that involves a breach of a court order or of an undertaking given (whether expressly or impliedly) to a court; or (ii) that involves the disclosure of the fact that an offer of compromise of a claim has been made in a pending proceeding or of the terms of such an offer; or (iii) that involves an abuse of discovery or other interlocutory process; or (iv) that involves a breach by a legal practitioner of an obligation owed by the practitioner to the court; or (v) that involves aiding, abetting, counselling, procuring or inciting a breach referred to in sub-paragraph (i), (ii), (iii) or (iv). Section 46(5)(b) preserves the right of a person to apply for an injunction restraining conduct which constitutes a contempt of court. Section 46(5)(c) maintains the power of a court to deal with a contempt summarily of its own motion.

42. [1996] 2 VR 117.

43. Law and Justice Legislation Amendment Act 1997 (Vic) s 32.

44. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 21 April 1994 at 1053. The debates on the bill centred on issue of the powers of the Director of Public Prosecutions vis-a-vis those of the Attorney General. See also the observations in Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117 at 130 (Winneke J).

45. See para 12.23.

46. (1973) QB 710 at 737-738.

47. [1996] 2 VR 117 at 134-135.

48. The Commission must emphasise that the discussion on this matter does not include civil contempt, in respect of which there may be other ways of dealing with the issue of private prosecutions.

49. See, for eg, L Shawcross, A Report by Justice: Contempt of Court (London, Stevens & Sons, 1959) at 34.

50. For an authority for the right of a person to seek redress for damage caused by an abuse of proceedings of a court by another person in wrongfully setting the law in motion on a criminal charge, see Amin v Bannerjee [1947] AC 322.

51. For illustrative cases on this form of tort, see Williams v Spautz (1992) 174 CLR 509; Varan v Howard Smith Co Ltd (1911) 13 CLR 35; Metall v Donaldson Lufskin & Jenrett Inc [1990] 1 QB 391 at 469.

52. Kinnaird v Field [1905] 2 Ch 306; Davison v Colonial Treasurer (1930) 47 WN (NSW) 19; Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311.

53. Williams v Spautz (1992) 174 CLR 509. See also Castro v Murray (1875) LR 10 Ex 213; Dawkins v Prince Edward (1886) 11 P 59 at 63; King v Henderson [1898] AC 270; Re Septimus Parsonage and Co [1901] 2 Ch 424; Bayne v Baillieu (1908) 6 CLR 382; Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; Spautz v Williams [1983] 2 NSWLR 506 at 539.

54. Williams v Spautz (1992) 174 CLR 509 at 518 (Mason, Dawson, Toohey and McHugh JJ).

55. Supreme Court Rules 1970 (NSW) Pt 15 r 26.

56. Supreme Court Act 1970 (NSW) s 84.

57. The contempt may not relate to particular proceedings, for example, in the case of scandalising the court.

58. Pt 55 r 11(6).

59. European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 (Kirby J); New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 184 (Kirby J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328-331 (Samuels J).

60. R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 258 (Evatt J); R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 445 (Rich J); Registrar of the Court of Appeal v Willessee [1984] 2 NSWLR 378.

61. Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117 at 178 (Phillips J).

62. Killen v Lane [1983] 1 NSWLR 171 at 178 (Moffitt J).

63. Killen v Lane [1983] 1 NSWLR 171 at 173 (Moffitt J).

64. Killen v Lane [1983] 1 NSWLR 171 at 173 (Moffitt J).

65. Killen v Lane [1983] 1 NSWLR 171.

66. Killen v Lane [1983] 1 NSWLR 171 at 177-178 (Moffitt J).

67. See Re An Allegation of Contempt of Court Made by Her Honour Judge Matthews (NSW, Court of Appeal, BC 8400372, 7 March 1984, unreported); Re An Allegation of Contempt of Court Made by the Honourable Mr Justice Maxwell (NSW, Court of Appeal, BC 8500884, 10 April 1985, unreported); Varley v Attorney General (NSW) (1987) 8 NSWLR 30.

68. See Supreme Court Rules (NT) r 75.07(1); Rules of the Supreme Court (Qld) O 84 r 1; Supreme Court Rules (SA) r 93.03, 93.04; Rules of the Supreme Court (Tas) O 73 r 1(1); Rules of the Supreme Court (Vic) r 75.07; Rules of the Supreme Court (WA) O 55 r 3. There is no equivalent provision in the Australian Capital Territory.

69. In the United Kingdom, the Contempt of Court Act 1981 (UK) s 7 provides: “Proceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of the court having jurisdiction to deal with it.” In Victoria, while the Public Prosecutions Act 1994 (Vic) s 46(1) states that “[d]espite any provision to the contrary made by or under any other Act or at common law, only the Attorney General may apply to a court for punishment of a person for contempt of court,” s 46(5) provides that nothing in the section “affects the power of a court to deal with a contempt summarily of its own motion.”

70. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 469.

71. Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588.

72. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 464.

73. R v B [1972] WAR 129.

74. See R v David Syme & Co Ltd [1982] VR 173, where the Victorian Attorney General’s power to institute the contempt proceedings was not disputed.

75. Supreme Court and Circuit Courts (Amendment) Act 1965 (NSW) s 2.

76. See Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 716 at 719 to 720 (Young J).

77. In 1996, the Courts Legislation Amendment Act 1996 (NSW) was passed amending the law by transferring to the Common Law Division of the Supreme Court proceedings for the punishment of contempt (subject to certain exceptions), including sub judice contempt: See Courts Legislation Amendment Act 1996 (NSW) Sch 1[4], 1 [6], 1 [7]. The amendments were proclaimed to commence on 2 May 1997: see New South Wales, Government Gazette No 47 of 2 May 1997 at 2427.

The Supreme Court Act 1970 (NSW) s 53(4), as it now stands, states that “the proceedings assigned to Common Law Division include proceedings for contempt of the court or of any other court (other than proceedings referred to in subsection (3) or s 48(2)(i)). Subsection (3) of the same section assigns to each Division of the Supreme Court proceedings for the punishment of contempt but only those consisting of contempt in the face of the court in that division, disobedience of a judgment or order of the court in that division and breach of an undertaking given to the court in that division. Section 48(2)(i) assigns to the Court of Appeal proceedings for the contempt in the face of the Court of Appeal.

78. See New South Wales, Parliamentary Debates (Hansard) Legislative Council, 17 October 1996 at 4967, 5412; Legislative Assembly, 21 November 1996 at 6423, 6459.

79. (1993) 32 NSWLR 262.

80. The then s 48(4)(a) of the Supreme Court Act 1970 (NSW) preserved the powers of the Supreme Court in a division in relation to the punishment for contempt in the face of the court in that division, disobedience to a judgment or order of the court in that division and breach of an undertaking given to the court in that division.

81. (1993) 32 NSWLR 262 at 272-280.

82. (1993) 32 NSWLR 262 at 280.

83. (1993) 32 NSWLR 262 at 286.

84. Morris v The Queen (1987) 16 CLR 454.

85. Liberato v The Queen (1985) 159 CLR 507.

86. No decision was reached on this issue in Young v Registrar, Court of Appeal because Justices Handley and Powell were both of the view that it was unnecessary to resolve it for purposes of that case.

87. (1890) 15 PD 59 at 64; cited in G Borrie, Borrie and Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 469.

88. Supreme Court Rules 1970 (NSW) Pt 55 r 6(2).

89. Supreme Court Rules 1970 (NSW) Pt 55 r 8.

90. (1765) Wilmot’s Notes 243; 97 ER 94.

91. He later became Chief Justice of the Common Pleas.

92. (1765) Wilmot’s Notes 243 at 254; 97 ER 94 at 99.

93. J Fox, “King v Almon, 1” (1908) 24 Law Quarterly Review 184; “The King v Almon, 2” (1908) 24 Law Quarterly Review 266; J Fox, “The Summary Process to Punish Contempt, 1” (1909) 25 Law Quarterly Review 238; “The Summary Process to Punish Contempt, 2” (1909) 25 Law Quarterly Review 354; J Fox, “Eccentricities of the Law of Contempt of Court” (1920) 36 Law Quarterly Review 394; J Fox, “The Nature of Contempt of Court” (1921) 37 Law Quarterly Review 191; J Fox, “The Practice in Contempt of Court Cases” (1922) 38 Law Quarterly Review 185; J Fox, “The Writ of Attachment” (1924) 40 Law Quarterly Review 43. See also J Fox, The History of Contempt of Court (Professional Books, London, 1972).

94. J Fox, “King v Almon, 1” (1908) 24 Law Quarterly Review 184 at 196.

95. J Fox, “King v Almon, 2” (1908) 24 Law Quarterly Review 266 at 266-268; J Fox, “The Summary Process to Punish Contempt, 1” (1909) 25 Law Quarterly Review 238 at 242-244; J Fox, “The Writ of Attachment” (1924) 40 Law Quarterly Review 43 at 57.

96. See also J Fox, The History of Contempt of Court (Professional Books, London, 1972) at 227-242 (Appendix).

97. Thomas of Chartham v Bent of Stamford, F W Maitland (ed), The Eyre of Kent 6 & 7 Edward II 1313-1314 (Selden Society, 1978) Vol 1 at 185.

98. Coram Rege Roll (M5 Edward III,1331) m 128.

99. Coram Rege Roll, no 390 (Hillary 1358) m 83d in G O Sayles (ed), Select Cases in the Court of King’s Bench Edward III (Selden Society Volume 82, 1965) Vol 6 at 118.

100. Harrison’s Case (1638) Cro Car 504; 79 ER 1034.

101. Radley’s Case, in How St Tr, vii, 701: T B Howell (ed), A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours (London, 1816) Vol 7 at 701.

102. Fox described this procedure as follows: “The defendant was brought into court by a writ of attachment, or by an order to show cause why attachment should not issue, and was allowed to enter into a recognizance to attend and answer interrogatories with regard to the alleged contempt. If he refused to enter into a recognizance he was committed to prison, and remained there until he submitted.” Fox (1972) at 71-72.

103. Fox (1972) at 70-117.

104. See Fox (1972) at 76-83.

105. This case is referred to in Appendix E to the Report of the Select Committee of the House of the Commons in Sir Francis Burdett’s Case (1810) 8 How St Sr 14 at 50.

106. J Fox, “King v Almon, 1” (1908) 24 Law Quarterly Review 184 at 191.

107. For example, see Anon (1731) 2 Barn KB 43; 94 ER 345; R v Middleton (1723) Fort 201; 92 ER 818; Barber (1721) 1 Stra 444; 93 ER 624; Wiatt (1723) 8 Mod 123; 88 ER 96.

108. Ex parte Martin (1879) 4 QBD 212; R v Gray [1900] 2 QB 36; R v Davies [1906] 1 KB 32; Morris v Crown Office [1970] 1 All ER 1079; Jennison v Baker [1972] 2 QB 52; Balogh v St Albans Crown Court [1975] 1 QB 73.

109. Ex parte Howe [1828] NSWSC 55; Re “Evening News” (1880) 1 LR (NSW) 211; R v Metal Traders & Employers Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; James v Robinson (1963) 109 CLR 593; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682; Gallagher v Durack (1983) 152 CLR 238; Fraser v The Queen (No 2) (1985) 1 NSWLR 680; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588; The Magistrates’ Court at Prahan v Murphy [1997] 2 VR 186; Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117; Hawkesbury City Council v Foster (NSW, Land and Environment Court, 18 December 1997, unreported); Australian Securities & Investments Commission v Matthews [1999] FCA 706.

110. For Canadian cases see: Re Campbell & Cowper [1935] 1 DLR 633; Re Tilco Plastics Ltd v Skurjat (1966) 57 DLR (2d) 596; Mathieson v Mathieson (1974) 48 DLR (3d) 94; R v Vermette (1987) 38 DLR (4th) 419. For Irish cases, see: Taafe v Downes 3 Moore PCC 36n; 13 ER 15; Attorney General v Kissane (1893) 32 LR Ir 220; The State (at the prosecution of Commins) v McRann [1977] IR 78.

111. See R v Parke [1903] 2 KB 432 at 442 (Wills J).

112. [1902] 1 KB 77.

113. Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378 at 380 (Glass J), at 381 (Samuels J).

114. [1984] 2 NSWLR 378.

115. Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 595 (McHugh J).

116. (1963) 109 CLR 593.

117. (1963) 109 CLR 593 at 601-602 (Kitto J, Taylor J, Menzies J and Owen J).

118. (1963) 109 CLR 593 at 614.

119. Green v United Sates 356 US 165 (1958) at 189.

120. Australian Securities & Investments Commission v Matthews [1999] FCA 706.

121. This section provides: “The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament describes.”

122. Re Colina; Ex parte Torney (1999) 73 ALJR 1576.

123. Gleeson, McHugh, Gummow, Hayne and Callinan JJ. Justices Gleeson, Gummow and Hayne were of the view that s 80 of the Constitution did not apply to the case because there was neither an offence against the Commonwealth nor an indictment. Justice McHugh was of the opinion that there was an offence against the Commonwealth because s 35 of the Family Law Act 1975 (Cth), which gives the Family Court the same power of contempt as that possessed by the High Court, creates an offence against the Commonwealth. However, he stated that because the alleged contemnor has not been charged on indictment, s 80 of the Constitution had no application. Justice Callinan did not express a view as to whether there was an offence against the Commonwealth but said that the long history of summary proceedings of contempt and the ruling in Kingswell v The Queen (1985) 159 CLR 264 that s 80 applies only if there is a trial on indictment brought him to the conclusion that a charge of contempt of the Family Court by scandalising is not required to be tried by jury. Justice Kirby was of the opinion that there was an offence against the Commonwealth but that there was no indictment. However, he dissented from the majority view and expressed agreement with Justice Deane’s construction of s 80 in Kingswell v The Queen that the section should apply to any “serious” offence (those punishable by a maximum prison sentence of more than one year) against a Commonwealth law. He concluded that the contempt in that particular case is an offence against a law of the Commonwealth which s 80 of the Constitution requires to be had on indictment and thus by jury.

124. See R v Archdall; Ex parte Corrigan (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Zarb v Kennedy (1968) 121 CLR 283; 59 CLR 55; Li Chia Hsing v Rankin (1978) 141 CLR 182; Kingswell v The Queen (1985) 159 CLR 264.

125. Re Colina; Ex parte Torney (1999) 73 ALJR 1576 at para 12. See also, on this point, para 125-126 (Callinan J).

126. R v Castro (1873) LR 9 QB 219 at 233-234; Attorney General (NSW) v Bailey (1917) 17 SR (NSW) 170 at 181 (Cullen J); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370-371 (Dixon, Fullagar, Kitto and Taylor JJ); Attorney General (NSW) v Mundey [1972] 2 NSWLR 887 at 912; Balogh v St Albans Crown Court [1975] 1 QB 73 at 91.

127. Ex parte Mijnssen; Re Truth & Sportsman Ltd (1956) 73 WN (NSW) 263 at 264 (Street J) quoting R v Davies (1906) 1 KB 32 at 41 (Wills J).

128. Attorney General v John Fairfax & Sons Ltd (1985) 1 NSWLR 402. This is also the practice in the ACT (see Re Whitlam; Ex parte Garland (1976) 8 ACTR 17) but not in Victoria (see Hinch v Attorney General (Vic) [1987] VR 721).

129. Attorney General v John Fairfax & Sons Ltd (1985) 1 NSWLR 402 at 406 (Hope J).

130. For a discussion on how the publicity surrounding the contempt proceeding may affect the related criminal proceeding, see R v Glennon (1992) 173 CLR 592. For a critique on this case, see A Ardill, “The Right to a Fair Trial” (2000) 25 Alternative Law Journal 3.

131. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 473.

132. Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedure and Evidence (Third Report, 1975) at 84.

133. Canada, Law Reform Commission, The Jury in Criminal Trials (Working Paper 27, 1980) at 6.

134. See para 4.3 and accompanying notes.

135. See para 4.29-4.32, Proposal 3.

136. See para 4.10 and accompanying notes.

137. Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598-599 (Jordan J); R v Australian Broadcasting Corp [1983] Tas R 161 at 168 (Neasey J); Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711 (McHugh J); Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 626, 628.

138. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371-372 (Dixon J, Fullagar, Kitto and Taylor JJ), at 375 (McTiernan J); Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 697 (Glass J), at 709-712 (McHugh J); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 47 (Deane J); Duff v The Queen (1979) 28 ALR 663 at 677-678; Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 733 at 735-736 (Glass J); Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 626-628.

139. Packer v Peacock (1912) 13 CLR 577 at 587; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372 (Dixon, Fullagar, Kitto and Taylor JJ); R v Crew [1971] VR 878 at 879.

140. R v Pacini [1956] VLR 544 at 549 (Lowe J); Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 626; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 702 (McHugh J); R v Pearce (1992) 7 WAR 395 at 423 (Malcolm J).

141. Jones v Skelton [1963] SR (NSW) 644 at 651 (Lord Morris PC); Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172; Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 (Jordan J); Stubs Ltd v Russell [1913] AC 386 at 393 (Lord Kinnear); Lewis v Daily Telegraph Ltd [1964] AC 234 at 281 (Lord Devlin). See also Defamation Act 1974 (NSW) s 7A(3)(b).

142. See para 5.1 and accompanying notes.

143. See para 5.4 and accompanying notes.

144. See Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 at 250-251 (Jordan J) (Davidson J concurring), at 254 (Bavin J); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 359 (Dixon, Fullagar, Kitto and Taylor JJ); R v David Syme & Co Ltd [1982] VR 173 at 179 (Marks J).

145. See Chapter 5, especially Proposals 7 and 8.

146. See Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378 at 382 (Samuels J).

147. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 21.

148. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 183.

149. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 476.

150. Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 32.

151. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 310-312; (Consultation Paper, 1991) at 417-419.

152. [1981] IR 412.

153. [1981] IR 412 at 439, 441 (Henchy J).

154. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 312.

155. Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 417-418.

156. The Courts Legislation Amendment Act 1996 (NSW) inserted s 101(4) to the Supreme Court Act 1970 (NSW).

157. Supreme Court Act 1970 (NSW) s 101(5).

158. Supreme Court Act 1970 (NSW) s 101A(1).

159. Supreme Court Act 1970 (NSW) s 101A(4).

160. Supreme Court Act 1970 (NSW) s 101A(5).

161. Supreme Court Act 1970 (NSW) s 101A(6).

162. See New South Wales, Parliamentary Debates (Hansard) Legislative Council, 17 October 1996 at 4969.

163. Supreme Court Act 1970 (NSW) s 101A(7). The validity of the provisions on camera proceedings are currently being challenged before the NSW Court of Appeal.

164. Supreme Court Act 1970 (NSW) s 101A(8).

165. See Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 277 (Kirby J); Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 20 (Barr J).

166. Criminal Appeal Act 1912 (NSW) s 8.

167. Criminal Appeal Act 1912 (NSW) s 18.