Evolution of Contempt of Court Charges

Contempt of court charges have existed as far back as the 12^th century, when it was called, ‘Contempt of the King’ under Anglo Saxon Laws.

During the reign of King Edward the Confessor and King William the Conqueror, the offence was referred to as Contempt of Justice; and could result in the offender being hanged to death.

That all changed in practise centuries later, as in 1631, a number of instances resulted only in the amputation of one’s hand. Although, records exist of at least one offender having been hanged after his hand was amputated.

The Founding of Common Law & Civil Law Courts

Common Law Courts were first founded by Royal Judges of The King’s Council after the Norman Invasion of Britain in 1066. 

Civil Law Courts, though, are a product of Roman Law, rediscovered and applied initially in French and German legal jurisdictions about the end of the 11^th century.

Who decided what Common Law should be? 

The Royal Judges travelled extensively and listened to the common man about local customs and traditions, which enabled the formulation of Common Law on that basis.

It was, in part though, derived from the practices of the Courts of the English Kings and, in particular, encouraged in the 1160s by King Henry II, who created what was called the King’s Bench, known as the Assizes.

The Assizes were Courts held all over England and Wales, with judges from higher Courts which were based in London, visiting and dispensing law.

This system, in some form or other, lasted until 1971, when the Courts Act 1971 was given Royal Assent.

Perhaps the system never went away as, for example, the NSW system, similar to other State and Territory processes, have sittings in most major cities and in a number of major regional locations; in line with the District Court Act 1973 (NSW).

This was initiated a long time prior, via the District Courts Act 1858 (NSW), which caused individual District Courts to be set up throughout the Colony, as it was then. 

How Australia Came into the Legal Picture

Naturally, Australian Law initially followed the British System and, even after independence, a court matter could find its way to the apex of the criminal justice system, which was not the High Court of Australia in Canberra, but the Privy Council in London. 

The Privy Council, also known as His Majesty’s Most Honourable Privy Council and founded in 1708, is comprised of hundreds of politicians, members of the House of Lords and members of the House of Commons.

This was despite the Founding Fathers of the Australian Constitution in the draft, decreeing that appeals to the Privy Council were to cease.

For reasons of Constitutional propriety and procedure, which is rather protracted, a compromise was reached where only matters from State Supreme Courts and the High Court of Australia, could pursue a final appeal in London. 

1968 saw the right of appeal from Federal and territory Supreme courts abolished by virtue of the Privy Council (Limitation of Appeals) Act (Cth) 1968, which also precluded the Privy Council from hearing Australian income tax appeals. 

The Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals in relation to Australian State jurisdictional cases.

The High Court of Australia became the Apex of the Appeals process after a complex 18-year legislative battle, culminating in an unusual dual Act; the Australia Acts 1986 (Cth and UK) which, in essence, ceased the United Kingdom’s ability to legislate with effect in Australia. 

In the early days, appeals from State Supreme Courts could bypass the High Court of Australia (A tactic used, should a prior adverse precedent exist) and go direct to the Privy Council.

Similar constitutional matters were also proceeding in Canada and New Zealand, which had like concerns to Australia; with all three countries successfully severing their constitutional attachments with the United Kingdom in the 1980’s. (Apart from Her Majesty the Queen)

Just quietly, as expressed by some political scientists, the overriding issue was that Australia didn’t want Britain deciding constitutional matters; even although it appeared it was quite content to have the British Judges  hear other matters.   

So, to simplify it, after 85 years of Australia’s Founding Fathers, their original draft constitution was operating as they intended it to.

The High Court of Australia became the final Court of Appeal and is today the final authority in relation to interpreting the Australian Constitution.

Back to the question of Contempt of Court

The High Court declared that any differentiation between criminal and civil contempt, is nothing other than illusionary.

What Precisely Is Contempt of Court

Contempt of Court involves someone who, by words, or actions, interferes with the Administration of Justice, by interrupting Court procedures, being disrespectful in relation to the Court’s Authority; and, in general, reducing the community’s confidence in and respect for the Decisions and Judgments delivered by the Court.

Is this offence, criminal, or civil?

This offence can be prosecuted as both civil and criminal contempt, though generally it is the offended person who initiates civil contempt proceedings, or the Court if the contempt was a breach of a Court Order.

The Attorney-General or the Court via the prothonotary’s office, may initiate criminal proceedings, when the administration of justice has been seen to have been interfered with.

However, both civil and criminal contempt are prosecuted within the civil jurisdiction of the Court, with the standard of proof for both, being beyond reasonable doubt and both governed by Common Law.

If this all appears a little confusing, it is quite understandable.

Once it gets to the appeal process, the confusion is somewhat increased, as the NSW appeal rights differ significantly between both criminal and civil types of contempt.

This prompted the High Court of Australia to encourage clarification, in relation to when a contempt is either criminal or civil in nature.

This is, predominantly, as there are occasions when the contempt if criminal in nature, may in some circumstances be referred to the Supreme Court of NSW for determination. 

Criminal Contempt

This form of contempt includes interfering with witnesses and what is termed sub judice (publishing information which can impact on the Court’s deliberations).

It also includes intentional defiance, or similar and insulting the Judge.

Where confusion reigns, is that another aspect where contempt becomes criminal, is something called ‘In the Face of the Court’, which apparently has no clear authority specifying adequately what it means.

Civil Contempt

This type of contempt may include breaching an Order of a Court and doesn’t need to be intentional but must include a specific step made by the  contemnor (person alleged to have committed the breach) which led to the actual breach. However, in certain exceptional circumstances, a civil contempt may be elevated to a criminal contempt, if in determining a sentence, the Judge found the breach was contumacious (deliberate defiance).

Australia’s First Contempt Case

1831 appears to be selected as the most likely date for Australia’s first contempt charge (R v Foley [1831] NSWSupC 75, in which the complainant refused to give evidence in a rape trial.

As pointed out in a thoroughly comprehensive forensic analysis at the National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020; the Law of Contempt is “a surprisingly misunderstood area of the law”. I don’t see it as surprising, simply confusing.

Australian Law allows a person who criticises a Judge, to be found guilty of Scandalising the Court, a form of contempt of the Court.

High Court of Australia Justice, His Honour, Lionel Murphy, once stated that this type of contempt was “dangerous, as it was an oppressive limitation on free speech.” 

Indeed, many Human Rights Organisations support this and other forms of contempt of Court offences.

An Initiative to clear up the Confusion about Contempt Laws falls by the Wayside:

30 years ago, the Australian Law Reform Commission (ALRC), recommended that the Common Law Principles of contempt of Court laws, required replacing by Statutory Provisions. 

Statutory Provisions here, means specific legislation enacted by Commonwealth and State Parliaments, simplifying a complex and confusing offence.

This recommendation, amongst 124 in total, has still not been adequately addressed. Indeed, the ALRC has recently undertaken another 5 year study, ALRC Program for the Future of Law Reform – 2020-2025.

Historical Categories of Contempt of Court Laws

Sub-judice contempt

This occurs when comments on a Court Hearing still in process, are made public; with the potential for compromising the Hearing.

Disobedience contempt

This happens when someone or an organisation fails to abide by a Court Order, such as a Suppression Order, or an Apprehended Violence Order, amongst others.

Contempt in the face of the Court

This involves when someone, within the Court, or Court Precinct, interferes with the operation of the Court.                                                                                    

Contempt by scandalising the Court

This offence is when someone criticises a Judge, alleges impropriety, or anything which is deemed to undermine the public’s confidence in the ‘Administration of Justice’.

Uncertain and Confusing Penalties Australia Wide

As a Common Law offence, ordinary sentencing principles and the limits attached thereto, lead to confusing and wide variations in terms of imprisonment and fines for contempt convictions.

Many jurists concur that these offences are covered in myriad pieces of legislation, without any real specificity, nor indeed clarity.

Many stakeholders in the Criminal Justice Systems agree that it is clear that much work has to be done with all States and Territories, to enable uniformity across all jurisdictions to make laws of contempt operate in a fair manner.

Special attention should be given to anti-corruption commissions, chief examiners of those bodies with coercive powers and Royal commissions; as those organisations appear to have the power to incarcerate someone for contempt for longer periods.

When a Judge Deals Summarily with a Contempt which is Criminal in Nature:

This generally falls under Contempt in the face of the Court and may include wilful defiance, disrespect, voluntarily committing any act, such as insulting the Judge, or anyone else, e.g., the jury, Court staff and disobedience.

It may constitute an assault on a Judge in some form.

This is such a case where a Judge may deal with it summarily.

A final word of caution about dealing summarily with a contempt offence, criminal in nature, comes from a former President of the NSW Court of Criminal Appeal, His Honour, Justice Kirby.

His Honour pointed out that when this occurs, the Judge is placed in the position of victim, witness, prosecutor and sentencer, stating:

“The summary procedure is extraordinary and exceptional involving as it does a departure from normal curial procedures and in a case criminal in nature where the penalties are  large.”

This was endorsed by Chief Justice Black of the Full Court of the Federal  Court of Australia in 2009.

Legal Implications of Contempt Offences

Should you be deemed to be in contempt of the Court, you may be warned, arrested, charged, fined and/or imprisoned, at the will of the Decision Maker.

Unlike most offences, you may be given the opportunity to apologise, if the matter is less serious.

Therefore, time in custody can be as little as hours, or, in more serious circumstances, days, weeks or months; and depending on which area of the jurisdiction the contempt has been committed, such as Royal Commissions, Anti-Corruption Commissions and similar, even years.

The subject of Contempt Laws has been examined by The Law Council of Australia, which in its November 2017 Law of Contempt Report; based on the Australian Law Reform Commission (ALRC) Report of 1987 and the New South Wales Law Reform Commission (NSWLRC) Report of 2003 and presented verbatim, with regard to the recommendations:

• Any reform to the laws of contempt should be co-ordinated between the Commonwealth and the States to achieve uniformity.
• The recommendations of the ALRC that common law principles of contempt be recast as criminal offences should be implemented, to the extent that they do not overlap with the criminal law.
• The recommendations of the ALRC that contempt in the face of the court be replaced with a series of criminal offences to be tried summarily should be implemented.
• The recommendations of the ALRC that civil contempt be replaced with a statutory regime of non-compliance proceedings should be implemented.
• A “substantial risk” test proposed by the NSWLRC should be uniformly implemented in relation to contempt by publication.
• Summary trial procedures for sub-judice contempt should be retained.
• The public interest defence recommended by the NSWLRC in relation to contempt by publication be implemented.
• The law of contempt by publication should be reviewed to ensure that it applies to circumstances where an Internet Service Provider or Internet Content Host has been made aware of the material but, thereafter, fails or refuses to remove it.

Whilst the Law Council have essentially supported most of the recommendations of the ALRC and the NSWLRC, with some qualification, they said, in essence, not much has been implemented in terms of change as recommended. 

Another 5 years has elapsed since the dissection of all aspects of this subject, which divide countless jurists constantly.

The Legislature of New South Wales enacted the Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW), which has very little impact on the existing legislation concerning the laws of contempt.

The Wheels of Justice Turn Slowly

Since what appeared a positive outcome after the 2017 analyses of the debate on Laws of Contempt, there have been over 50 other NSWLRC Reports, but none have returned to the Laws of Contempt.

The ALRC is currently investigating Religious Educational Institutions and Anti-discrimination Laws.

• It took 4 years for the ALRC to file its Report 
• It took 5 years for the NSWLRC to file its Report
• It took until 2017 for the ALRC Report of 1987 and the NSWLRC Report of 2003 to be referred to the Law Council of Australia by the Senate Legal and Constitutional Affairs Reference Committee.

The International Commission of Jurists Victoria (ICJ) were not on board and their membership is comprised of Victorian jurists, judges, magistrates, barristers, solicitors, law students and legal academics.

The bottom line is that despite all those years, money and time, nothing eventuated, as the Senate Legal and Constitutional Affairs Reference Committee, Senator Louise Pratt, Chair of the Committee, said this:

“The committee recommends that the submissions received to this inquiry be referred to any future Senate inquiry into contempt.” 

As of 30 November 2022, no upcoming hearings are scheduled.

The legislation committee has filed 4 Bills in November and an Annual Report.

Current laws relating to contempt of court in New South Wales 

Contempt of court is an offence under section 24 of the Local Court Act 2007 and section 199 of the District Court Act 1973, which carries a maximum penalty of 28 days in prison and/or a fine of 20 penalty units.

A penalty unit is $110 at the time of writing, which means the maximum fine is $2200.

The laws and procedures relating to contempt in the Supreme Court are contained in Part 55 of the Supreme Court Rules 1970.

The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence, and a person is entitled to an acquittal if they are unable to do so.

There are also a number of legal defences available to those who are going to court for the offence.

The current legal definition of contempt of court in New South Wales

A contempt of court is currently defined in the law of New South Wales as an act that has the tendency to interfere with or undermine the authority, performance, or dignity of the court or those who participate in court proceedings.

The following conduct has been found to meet the legal test for contempt:

• Protracted swearing and yelling at a magistrate,
• Filming witnesses in an attempt to intimidate them,
• Evading questions in court or refusing to answer them,
• Refusing to take an oath or affirmation in court,
• Refusing to leave the courtroom after being directed to do so, and
• Disobeying court orders such as subpoenas to attend court or to produce evidence.

The courts have made clear that a contempt charge should be used as a ‘last resort’ to deal with unruly persons within the courtroom, and all other possible options should be considered before resorting to a formal charge.

These options include:

• Giving a warning,
• Directing a person to leave the courtroom,
• Providing an opportunity to seek legal advice, such as advice relating to the privilege against self-incrimination when being asked questions on the witness stand,
• Considering whether the matter should be referred to the Attorney General for consideration of charging the person with engaging in disrespectful behaviour in court.

The courts have further found that rudeness or extreme discourtesy by lawyers does not amount to contempt.

In addition to this, the courts have made clear that, like police officers, magistrates and judges should be able to resist the sting of insults directed at them, as they are trained to be level-headed and to keep calm under stressful situations.

They should not, therefore, resort to a charge of contempt until and unless it is completely necessary.

The penalties that may currently apply to contempt of court charges

As stated, the maximum penalty for contempt of court is 28 days in prison and/or 20 penalty units, which is currently $2,200.

However, this is the maximum and the court can apply any of the following penalties for the offence:

• Section 10 dismissal,
• Conditional release order,
• A lower fine,
• Community correction order,
• Intensive correction order, or
• A shorter prison term.

The matters that need to be proved to establish contempt of court

For a person to be found guilty of contempt of, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

1. The defendant engaged in conduct that had the tendency to interfere with or undermine the authority, performance or dignity of the court or those who participate in court proceedings, and
2. The defendant intended to do the act.

The prosecution will fail if it cannot prove each of these elements to the required standard.

It is important to note, however, that the prosecution is not required to prove that the defendant intended to actually interfere with the administration of justice – just that he or she intended to do an act which, viewed by a reasonable person, had the tendency to do so.

This is known as an ‘objective test’ and means the defendant’s reasons behind doing the act are not determinative of the offence.

The legal defences to contempt of court charges

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

• Duress, which is where your conduct was due to you or a loved-one being threatened or coerced and your conduct was reasonable and proportionate,
• Necessity, where the act was necessary to avert imminent danger, and
• Self-defence, where you engaged in the act to defend yourself or another in circumstances where your conduct was a reasonable and proportionate response to the situation as you perceived it at the time.

It must disprove any such defences beyond all reasonable doubt.

Options available where you have been accused of contempt of court

Those who are charged with contempt of court may plead guilty or not guilty to the offence.

Pleading not guilty 

Before you can be found guilty of contempt of court, the prosecution must prove beyond a reasonable doubt that:

1. You engaged in conduct that had the tendency to interfere with or undermine the authority, performance, or dignity of the court or those who participate in court proceedings, and
2. You intended to do that act.

There are a number of ways to defend contempt of court charges, including raising the fact that:

1. The prosecution cannot prove you engaged in the alleged conduct,
2. The prosecution cannot prove that conduct had the tendency to interfere with or undermine the authority, performance, or dignity of the court or those who participate in court proceedings,
3. The prosecution cannot prove you intended to do the act, rather than did it by reason of recklessness or mistake, or
4. You have a valid legal defence which the prosecution cannot disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Pleading guilty

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the facts relied upon to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials that can be handed up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

Procedural matters relating to contempt of court charges

Section 199 of the District Court Act 1973 prescribes a number of procedural matters when it comes to contempt of court charges, and the Local Court adopts these matters through section 24 of the Local Court Act 2007.

The section prescribes the following procedure:

Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:

– by oral order direct that the contemnor (who is the person charged with or found guilty of contempt) be brought before the Court, or

– issue a warrant for the arrest of the contemnor.

• Where the contemnor is brought before the Court, the Court shall:

– cause the contemnor to be informed orally of the contempt with which he or she is charged,

– require the contemnor to make his or her defence to the charge,

– after hearing the contemnor, determine the matter of the charge, and

– make an order for the punishment or discharge of the contemnor.

• The Court may, pending disposal of the charge:

– direct that the contemnor be kept in such custody as the Court may determine, or

– direct that the contemnor be released,

and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.

• The Court may give directions which can include that the contemnor give security (eg deposit money) for his or her appearance in-person to answer the charge.
• A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.

The procedures for contempt in the Supreme Court are contained in Part 55 of the Supreme Court Rules 1970.