Armidale Local Aboriginal Lands Council v Moran

Part 55 r 14 - Principles

1. Part 55 r 14 of the Supreme Court Rules 1970 (NSW) ("SCR") provides: Where a contemnor is committed to a correctional centre for a term, the Court may order his discharge before the expiry of the term.
2. The rule confers upon the Court a discretion to order that a contemnor be discharged prior to the expiry of the term for which she was committed to a correctional centre.
3. Part 55 r 14 is not concerned with contentions to the effect that a sentence imposed was too severe - these would be matters for an appeal. [3] Rather, as the authorities indicate, that the Court is looking to factors such as relevant changes in circumstances since the sentence was imposed. In Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 ("Young"), Handley JA, at 289A, said of Pt 55 r 14: "The rule confers a wide judicial discretion but an applicant must make out a proper case for a discharge."
4. In that same case, Kirby P relevantly said, at 283B: "… the discharge power must be seen as normally directed to the provision of clemency to the imprisoned contemnor. It will usually be applicable only where the contemnor shows remorse. Ordinarily, some new considerations, which were not before the court which imposed the sentence, will have to be demonstrated in order to authorise the later court, of co-equal authority, to discharge the contemnor from prison short of the term originally imposed."
5. Kirby P also referred, at 283F, to the notion that "contrition and true acknowledgement of error" are primary grounds for the exercise of the discharge power. For his part, Powell J relevantly said, at 292F, that if Part 55 r 14 operates: "… in order that the Court might be persuaded to make an order for early discharge, there should be placed before it evidence as to some change in the relevant circumstances since the making of the order for committal which makes it inappropriate - as, for example, because no good purpose will be served by detaining the contemnor further … , or, because the contemnor has purged his contempt … - that the contemnor be detained further."
6. Young makes clear that to be evidence of a change in circumstances an apology must be genuine and not - as Mr Young's apology was regarded by Powell J, at 292G, "no more than an empty collection of words." In Young, the Court of Appeal declined to exercise the discharge power.
7. Young was applied by Meagher JA in Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280 ("Menzies"). In that case, factors to which Meagher JA had regard in determining to exercise the discharge power included the provision of apologies on the part of the contemnors, Mr and Mrs Menzies, the fact that Mr Menzies had arranged (from prison) for the delivering up of the vehicles the subject of the court orders that he had been defying, and the harrowing experience suffered by Mrs Menzies in custody.
8. In his written submissions, Mr Kell also drew my attention to two recent authorities of the Federal Court: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563; [2015] FCA 1103 (Logan J) ("Chaste") and Thunder Studios Inc (California) v Kazal (No 6) (2017) 356 ALR 238; [2017] FCA 1573 (Rares J) ("Kazal"). Each case deals with r 42.22 of the Federal Court Rules 2011 (Cth), [4] which has been described as "not materially different" from Pt 55 r 14. [5] In Kazal, after referring to Chaste and relevant UK authority, [6] Rares J said, at [53]: "I am of opinion that on an application under r 42.22 the contemnor must satisfy the Court that, first, there is a reason for discharging him or her early, and, secondly, that it is in the interests of justice to do so."

Affidavit evidence

1. Three affidavits were tendered in support of application.
2. An affidavit of Ms Chant, a solicitor from the ALS, deposed to her understanding that Ms Moran did not have present legal representation at the substantive contempt proceedings, that Ms Moran accepted she had been cautioned and that she apologised without reservation about the breach of orders, and that she had made arrangements to have her personal property removed from the premises. Ms Chant also referred to her instructions as to events that had occurred since Ms Moran's imprisonment which included hospitalisation to check on a heart condition and a sexual assault by a female inmate whilst at Surry Hills.
3. The affidavit of Mr Bourke, a solicitor from the ALS Armidale office, confirmed his observation that the premises in issue had been demolished and the land was now vacant, other than some items of furniture and some rubbish.
4. The affidavit of Ms Moran deposed to her acceptance that she had breached the Court's orders. She apologised for doing so stating that she "did not understand how serious it was". She stated, and I accept, that although she was warned that she could be sent to gaol if she did not vacate the premises, she did not understand that she could go to gaol straight away. Ms Moran stated that she did not have a lawyer with her to explain the process and to speak for her at the proceedings.
5. Ms Moran also described being checked for a heart condition which required stenting in February 2019, and that she was sexually violated by a female inmate at Surry Hills Correctional Centre after her incarceration. Ms Moran stated that she felt shame in custody and felt she was not a woman in Country, and expressed a wish to return to Country to heal. She stated that she was very sorry and undertook not to return to the premises.

Submissions

1. Mr Kell submitted that if the Court was satisfied as to the evidence advanced by Ms Moran - and that she understood and/or acknowledged the wrongness of her conduct in defying the Court's orders - it would be open to the Court to consider exercising the discharge power under Pt 55 r 14. He conceded that the material tendered was sufficient to enliven that discretion.
2. Mr Styles submitted that the question for determination was whether it was appropriate in all the circumstances to discharge Ms Moran from the punishment that has been imposed. He relied upon the statements of Meagher JA in Menzies to the effect that: "Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition and establish that the punishment suffered already is enough to vindicate the authority of the Court and to punish the contemnor for the contempt found."
3. In terms of the test articulated in Kazal by Rares J, the questions are first, whether there is a reason for discharging the contemnor early and second, is it in the interests of justice to do so.
4. Mr Styles submitted that the interests of justice should include considerations of clemency. As articulated persuasively and with admirable clarity by Mr Styles in his oral submissions: "Essentially, in these proceedings the idea of a punishment for contempt is the ultimate enforcement of the Court's authority. The imposition of a punishment is an exercise of that authority. There is only one potentially greater recognition of the authority of this Court than the exercise of a power to punish. That, in my submission, is the recognition by the individual who has faced that court in yielding and apologising to the court. It may be, in my submission, that that recognition of the Court's authority is a real and meaningful fact which emphasises the overall interests of justice that are sought to be enforced by a contempt. Essentially, the interests of the prosecutor have been met during the course of proceedings. That is, the contempt was complete and incapable of repetition at this point in the proceedings. That, at this point, the recognition given in the affidavit by Kerry Moran is the greatest, most emphatic expression of this Court's authority, greater even than the fact of punishing a contemnor by imprisonment. So, in those circumstances, the exercise of clemency or the exercise of a power mercifully is something that is in the interests of justice. It is not against the interests of the prosecutor and it is, definitely, and fairly obviously, in the interests of the contemnor in the proceedings."

Decision

1. I accept without hesitation that my discretion to discharge Ms Moran from the contempt was enlivened by the material tendered. I am also persuaded that I should exercise that discretion for her immediate release.
2. Ms Moran's affidavit contains what I consider to be a heartfelt expression of apology and regret. I accept the material as a persuasive demonstration of remorse and contrition and a true acknowledgement of her error. I consider the apology to be genuine.
3. The affidavit of Ms Chant backs up this position and explains a little about the inadequacy of the legal assistance Ms Moran had at the critical time, comprising only telephone advice, not from the ALS, nor from a person experienced in criminal law or the law of contempt. Mr Bourke's affidavit demonstrates that the premises are no longer standing. I accept the undertaking Ms Moran has given that she will not return to that place.
4. The short period in custody has been a salutary and distressing period for Ms Moran. The punishment suffered was enough to vindicate the authority of the Court and to punish her for the contempt found.

Two other relevant matters

1. Ms Moran's notice of motion initially sought an order that the contempt be found to be purged. That order was not pressed but it is worth noting the reasons why it was accepted that the order was unnecessary.
2. As submitted by Mr Kell, the notion of contempt being "purged" has different meanings in different contexts. In its perhaps more traditional usage, a contempt can be "purged", only where the relevant Court order was a mandatory (not a prohibitory) order that required positive conduct by the contemnor and which, after initial defiance, could and was subsequently complied with by the contemnor. On this view, an apology and contrition, without more, do not amount to a 'purging' of a contempt. The distinction is referred to by Logan J in Chaste, at [34]-[38], citing CJ v Flintshire Borough Council [2010] 2 FLR 1224; [2010] EWCA Civ 393. [7] In the present case, the better view is that the contempts that Ms Moran committed were complete by the time that Adamson J made the declaration and convicted her on 5 December 2019. In this sense, Ms Moran's conduct is relevantly equivalent to that of the contemnor in Chaste (Mr Foster), of whom Logan J said, at [38]: "…past conduct amounting to the contempts is a proved given which cannot be undone. … that past involvement cannot be undone or 'purged'."
3. It should also be noted that a discharge order under Part 55 r 14 does not remove existing liability for contempt. Whilst it was initially proposed by Mr Styles that the court should note that the discharge from punishment has the effect of avoiding the conviction for contempt, this order was not pressed.
4. As submitted by Mr Kell, the Court would fall into error if it made an order to that effect. In this respect, so called 'purging' (including apologising, showing contrition and providing undertakings) does not remove a liability for contempt that has been the subject of a finding of guilt and conviction, although it can clearly be relevant to penalty. [8] Similarly, the making of a discharge order under SCR Part 55 r 14 - with respect to a fixed term of imprisonment that has been imposed - does not affect the liability for contempt. Only a successful appeal can remove the liability for contempt. Here, as noted above, the liability for contempt was complete at the time that Adamson J made the relevant declaration and recorded the conviction.

Orders 1. The defendant, Kerry Moran, be discharged and released from the correctional centre where she is presently imprisoned. 2. For the purpose of giving effect to order 1, revoke the sentence warrant dated 5 December 2019 in relation to the defendant's imprisonment. 3. I note that Kerry Moran is to be released immediately. 4. I note that Kerry Moran undertakes not to re-enter the property the subject of the earlier contempt.

Endnotes

1. See Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133 (Schmidt J).
2. Email of 12 December 2019 (10:08am) from solicitors for the plaintiff sent to Mr Styles (ALS) and Mr Thomson (CSO).
3. See Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 282.D per Kirby P.
4. FCR rule 42.22 is entitled "Discharge before end of prison term" and provides: "If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person's discharge before the end of the term."
5. See Chaste at [11].
6. CJ v Flintshire Borough Council [2010] 2 FLR 1224; [2010] EWCA Civ 393.
7. See also Kazal at [49] per Rares J.
8. See, for example, Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118 Black J noted, at [48]: "… After Mr Pennimpede has purged his contempt, at least in the sense of making a payment into Court which is substantively equivalent to the undertaking with which Admark cannot now comply, coercion has no further part to play in fixing an appropriate penalty although retribution and deterrence remain important considerations". His Honour cited Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [50]. See also Prothonotary v A [2017] NSWSC 495 (finding of liability for contempt even though strong subjective circumstances amounting to 'purging'; such factors relevant to penalty).

Amendments 27 April 2020 - Correction to paragraph 23 due to typographic error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2020