“Disrespectful Behaviour” in Court to be a Crime

Defendants who refuse to stand in court, or yell at judges or magistrates, could face criminal charges from next month onwards, as the New South Wales Government moves to pass new laws against “disrespectful behaviour” in courtrooms.

Last week, the State’s Attorney-General Gabrielle Upton gained cabinet approval for a proposal to introduce the new offence of ‘deliberately disrespecting the court’. Those found guilty could face a penalty of 14 days in prison, or fines of up to $1100.

The changes were flagged last year, after a number of high-profile cases in which defendants refused to stand for judges in court. During his trial, Milad bin Ahmad-Shah al-Ahmadza, accused of shooting a man outside a sex club in 2013, refused to stand for four judges over an 18 month period. His claimed he is “not at the behest of any authority other than Islam”.

“The NSW government is making sure that deliberate behaviour, which is disrespectful, like failing to stand or disrupting the court, is met with a proper penalty,” Ms Upton told The Daily Telegraph.

“We have already started consultation on draft laws that reflect our community’s expectation that any person who comes before a court should show respect for the judge and the proceedings before the court.”

Under the proposed new laws, the presiding judge or magistrate, or the Attorney-General, will have the power to charge a person with the new offence. Both defendants and witnesses can be charged if deemed appropriate.

At the time of the trial, Al-Ahmadzai’s criminal defence barrister argued that his client was not under any “legal obligation” to stand for judge. The barrister said al-Ahmadzai’s ­refusal to stand when he entered his not guilty plea or to rise when Judge Farmer entered or left court was, “not intended as any kind of disrespect. It is about Mr al-Ahmadzai balancing his competing duties”.

Legal advice to former Attorney-General Brad Hazzard confirmed that refusing to stand for a judge did not meet the threshold required for contempt of charges.

The new laws are troubling for a number of reasons. Any law which sees a Government Minister given the power to charge a person with an offence is a grey area, when it comes to the separation of powers and protection of civil liberties. Most laws, like these, seem to start with great intentions, but there’s always a risk they’ll be abused down the track for political gain.

It is also worth keeping in mind that the proposal is already highly political, and more in response to dog-whistling from the Daily Telegraph than a serious need for legislative reform in this area.

What is Contempt of Court?

Contempt of court refers to any type of behaviour that interferes with, or impedes, the administration of justice, or undermines the authority, dignity or performance of the court. It also includes the publication of anything that could prejudice the course of justice.

While yelling at a judge, or refusing to stand for them, does not normally meet the threshold for contempt, the following often will:

• Disrupting proceedings by continually swearing at and abusing the magistrate or judge
• Filming witnesses in order to intimidate them
• Taking photos of jury members or court proceedings
• Refusing to take an oath, or give evidence
• Disobeying court orders
• Being noisy in court in an attempt to interrupting the proceedings
• Statements about a judge’s conduct, or their decisions, that are influenced by factors other than evidence in court
• Destroying documents that are likely to be required as evidence in court proceedings
• Blocking people from accessing to courts

As contempt is a common law offence, there is no prescribed maximum penalty. Those who are guilty may be issued with fines or even sent to prison.

Often, those who are guilty are given a chance to ‘purge their contempt’, which can involve an apology and compliance with the rules of the court.

If you have been called to appear before a NSW court like the Downing Centre Court, keep in mind the above restrictions so that you don’t inadvertently act in contempt of court – don’t take photos in the courtroom and keep your behaviour polite. If you are appearing before a magistrate or judge, being rude, even if you don’t get charged with contempt, will not help your case!