Attorney-General for the State of Victoria v Rich [1998] VSC 41

5. The proceeding before the court is an application by the Attorney-General for orders that Mr Rich be dealt with for contempt committed in the face of the County Court during the trial. The allegations are as follows:

(a) During the conduct of the Respondent's criminal trial at the County Court before his Honour Judge Byrne on 26 June 1995, the Respondent committed a contempt of court in that he addressed the learned trial judge in a threatening, abusive and offensive manner.

(b) The conduct alleged in sub-paragraph (a) constitutes a contempt of the County Court in that it was calculated to interfere with the administration of justice.

(c) Further, during the said trial on 9 August 1995, the Respondent committed a contempt of court in that he threatened the prosecutor, Ms Carolyn Douglas.

(d) The conduct alleged in sub-paragraph (c) constitutes a contempt of the County Court in that it was calculated to intimidate Ms Douglas and others, to undermine the authority of the court and to reduce the capacity of the court to administer justice in a proper manner.

12. The factual bases for the two charges are not in dispute for the incidents are recorded on video with sound.

16. Mr Rich had been in custody for these charges for a very long time before the trial commenced. At the time of sentencing in October 1995 the judge certified that 1,428 days should be reckoned as having been served. This is almost exactly four years. This delay was not altogether the fault of the court processes. On 22 October 1993 after certain legal aid issues had been resolved, his trial was first listed to start on 18 July 1994 but it did not actually commence until 2 March 1995. He was represented by two counsel. The period from that date until the date on which the jury was empanelled on 27 June 1995 was occupied with arguments as to the admissibility of evidence; an application by Mr Rich for bail on 20 and 31 March 1995; application by him for adjournments of the trial on 21, 30 March, 4, 7, 28 April, 1, 5, 8 and 11 May 1995; an application by him for the judge to disqualify himself for bias on 4 April 1995; and, an application for severance of the presentment on 21 April 1995. The accused man dismissed his counsel on 28 April 1995 again on 5 May 1995 and it appears that on other occasions they were having difficulties obtaining instructions from him. On 11 May 1995 the prosecution asked the judge to empanel a jury to determine his fitness to plead. This caused the trial to be adjourned again for some weeks for Mr Rich to be medically examined. His Honour found on the evidence that the question of fitness should be put before a jury and this was done on 21 June 1995. The jury on 23 June found him fit to plead and the trial was adjourned to commence on 26 June.

19. On the morning of 26 June 1995 counsel for Mr Rich sought a permanent stay of the proceeding on the basis that, in the light of the evidence previously given on the fitness to plead application, their client was "suffering from a 30 percent deficit which sometimes fluctuates to a 50 percent deficit in what we would say is his overall psychological capacity". The condition from which he was suffering was described as that of "reactive depression with attendant anxiety". His Honour rejected the application, concluding that "the accused man is a long way from being in a mental condition that would warrant a postponement of the proceedings either on a temporary or a permanent basis." He directed at 2.14 pm on that day that the jury panel be brought in. Counsel for the accused once more indicated that they had been dismissed. Nevertheless, they remained in court.

22. Then, or sometime thereafter on that afternoon, his Honour directed that Mr Rich be placed in the dock for the purpose of his arraignment and the empanelling of the jury. The accused man then announced in intemperate and offensive language that he would not take part in the process, saying that he wanted to see a doctor. He said he refused to be arraigned and that he wanted to leave the court. He said, notwithstanding the judge's direction that he might not leave, that if a jury panel were brought in he was going to march straight out. He complained that he was not receiving a fair trial. He described the proceedings to the judge as a sham and illegal. He referred to the judge as having resolved to obtain his conviction from day one and he referred to his Honour as "a silly old dog" and a "rat". He said that he wanted to leave the court to obtain medical treatment so that his state of mind might be improved. His statements are recorded in the transcript at pp. 2263-2267 and I shall not set them out in extenso. In the event the trial judge did not require him to remain in court and the arraignment and the empanelment were adjourned to and in fact took place on the following day.

26. The trial proceeded. On 8 August there occurred an incident in court which included an outburst by Mr Rich directed at the prosecutor. The detail of this is not altogether clear on the evidence before me but Mr Rich said in his affidavit that it arose out of an evidentiary argument concerning the admissibility of certain objects found in his possession. In any event Mr Rich announced that he would let the trial proceed without him and the judge gave him permission to leave the court with the right to return whenever he pleased. The trial was adjourned to the following day on the application of counsel for the accused. In the course of this adjournment application his Honour said that, although he accepted that a trial in the absence of the accused was a last resort, he would press on the following day whatever be the situation. He mentioned, too, that his belief was that the conduct of Mr Rich was calculated.

29. On the morning of 9 August 1995 Mr Rich unsuccessfully attempted to report sick at the Remand Centre. Counsel on his behalf later informed the court that he was not well but that he adhered to the views expressed to the prosecutor on the previous day.

32. Then followed the judge's ruling on the admissibility of the evidence the subject of the previous day's argument. Mr Rich then announced to the court that there would be no jury and, further, that his counsel were again dismissed. He was removed from the court. After the luncheon adjournment and before the judge returned to the bench, the accused man was taking his seat in the dock passing. The jury was not present. Mr Rich then made the following statement, apparently addressed to the prosecutor, Ms Douglas:

One chance - one fucking chance. Watch your back. Every time you turn that car on of yours where you're living at the moment, I'm telling you, okay. I don't care how long it takes, 25 years bitch, I'll have a go at you. One go, that's all I want and you think by locking me up for 25 years, I don't have legs and arms out there. I've a bank account overseas and even without the money, we'll be able to get you any time, slut, I'm telling you. All I ever wanted is a fair go. You've pulled every dirty, filthy trick under the book.

You shut you mouth, Mr Andrews. This is not your fight okay. I have no fight with you. Can I have a glass of water please? You know you're only worth 30 grand, don't you, that's all you're worth. You think your little gown and wigs will protect you. In the end it won't (indistinct) like me. I don't give a fuck, that won't protect you from (indistinct) it doesn't matter, the damage is done, I'm not going to worry about it. Don't worry about it. The damage is done and I don't give a rat's arse. I'll go away for 20 years but she better make it life. I go to bed thinking about her every night. A thousand bodyguards won't help her. If he's any guts he'll prefer charges now if he's got any guts at all.

36. In his affidavit Mr Rich said that this statement was made after he heard "what I believed were derogatory and insulting comments made about me by the prosecutor to her junior". This was not explored further in evidence before me.

39. The matter was brought to the attention of the trial judge who ordered that the accused man be removed from the court and he later adjourned the trial to 14 August.

42. When Mr Rich returned to the cells following this incident he spoke with Michael Lambe, a custody security officer, who gave evidence of the following conversation with him:

"I spoke with him and he told me he had just finished abusing the Crown Prosecutor in his trial a few moments before. He also stated that the next time he is asked to return to the court, he fully intends to abuse the current trial Judge for his incompetencies and to threaten him in the hope that such actions will necessitate the Judge having to disqualify himself from the trial, thereby providing him with the opportunity of a new and fairer trial."

46. Another custody security officer, Christa Bradley, also gave evidence of a conversation which she heard between an unknown person and Mr Rich when he was in the cells. She said that, when it was suggested by the unknown person to Mr Rich that "They may charge you", he replied, laughing, "Well if she charges me she can't prosecute me". Ms Bradley then said that Mr Rich went on to say "On Monday I'm going to threaten the Judge, then he can't prosecute me neither. Then the case might be heard by someone else and I might get a fair trial. I'll do whatever it takes to get a fair trial as I'm not getting that".

49. All of the evidence was by affidavit and no witness was cross-examined. This proceeding was commenced in accordance with the provisions of the Public Prosecutions Act 1994 by originating motion filed on 13 August 1996. The long delay in its coming to trial appears to have been largely the result of a decision not to proceed with it pending the conclusion of an appeal by Mr Rich against his conviction and sentence and to difficulties in the preparation of his answering material which was not filed until 19 July 1998 and thereafter.

52. There was no dispute before me that the statements by the defendant addressed to the trial judge on 26 June and to the prosecutor on 9 August 1995 were in fact made and were capable of amounting to contempt in the face of the court. Of these matters I am satisfied beyond reasonable doubt. The issue in these circumstances was the state of mind of the defendant when he said the words and what intent is required to be proved to make out the charges. On his behalf, it was submitted that I must be satisfied to the criminal standard that, at the relevant times, he had the intent to pervert or delay or interfere with the course of justice (T41). Counsel for the plaintiff contended that contempt would be established if the court was satisfied that "Mr Rich committed an action amounting to an interference with or obstruction to or having a tendency to interfere with or obstruct the due administration of justice (T11): In re Dunn; In re Aspinall [1906] VicLawRp 84; [1906] VLR 493 at 497 per Cussen J. Accordingly, it was put, intent was not part of the plaintiff's proofs; the facts put forward on behalf of the defendant may be relevant to establish the defence of insanity.

55. In cases such as this where an accused addresses the judge on the bench deliberately in terms which are abusive and offensive or deliberately directs threats to injure or kill counsel, I doubt very much whether this Court should be concerned with an inquiry as to what was the actual purpose of the contemnor: Ex parte Tuckerman; Re Nash [1970] 3 NSWR 23 at 28. It is apparent from the nature of the acts themselves that they have a tendency to interfere with the course of justice by scandalising the court in the one case and by dissuading or punishing counsel for having performed her duty in the conduct of the trial, on the other. This is not a case where the conduct of the alleged contemnor is of itself neutral in the sense in which I used that word in R. v. McLachlan [1998] 2 VR 55 at 66. Even where a person assaults another who has given evidence in court and the assault takes place outside the court precincts, it is neutral in this sense. It will take on the character of a contempt where it is done to punish the victim for having given evidence: A G v. Butterworth [1963] 1 QB 696; R. v. Wright (No.1) [1968] VicRp 15; [1968] VR 164. See too R. v. Taylor (unreported, Gobbo J., 14 December 1989). In a case like the present, however, where the acts themselves tend to interfere with the course of justice it is sufficient that the court be satisfied that they were performed consciously and voluntarily. In Re Samuel Goldman [1968] 3 NSWR 325, where the contemnor offered a threat to counsel leaving court, the circumstances of the time and place indicated it had a tendency to interfere with the course of justice. In Re Johnson (1887) 20 QBD. 68, however, which was also a threat to a practitioner outside court, Lord Esher M.R. at 73 noted that "the appellant intended in what he did to cast contumely and insult on" the court proceeding which had preceded the incident. This case, which was cited with approval by the New South Wales Court of Appeal in Re Samuel Goldman, lends some support for the submission put on behalf of the present defendant that such intent must be shown. In any event, having regard to the view I have formed on the facts of this case, it is not necessary for me to express any concluded view on this controversy.

58. Evidence was led as to the state of mind and intent of the defendant from the defendant himself by affidavit sworn on 19 July 1998; from Peter Norman Drysdale, a psychiatrist carrying on practice at the North East Metropolitan Psychiatrist Service, by affidavit sworn on 27 July 1998; and from Bernard John Healey, a clinical and forensic psychologist, by affidavit sworn on 28 July 1998. Inasmuch as the area of contest in this case involves an assessment of the state of mind of the defendant on each of the two occasions, the manner in which this evidence was placed before the court has done little to assist me in my task. That from the medical witnesses took the form of their adopting and verifying selected portions of the evidence given by them on voire dire at the trial. The portions were selective. Mr Healey adopted five portions of his evidence given on various applications before the trial judge. The first portion was his evidence in chief, but not his cross-examination, given on 31 March 1995 in support of an application by the defendant for bail. The second portion was, again, his evidence in chief only, given on 19 June 1995 in support of an application by the defendant for a permanent stay of the trial on the basis of his mental condition. The third, fourth and fifth portions adopted by Mr Healey are said to be his evidence given on 22 June 1995 before the jury which had been empanelled to determine the accused man's fitness to stand trial. Of these, the third portion comprises two successive pages of transcript from Mr Healey's evidence in chief on that day. Then there is a page omitted before the fourth portion commences, recording all of Mr Healey's cross-examination except the missing first page. The fifth portion which Mr Healey verifies is in truth not his evidence at all; it is part of the evidence in chief of Sgt Kent of Inverloch police station. The evidence of Dr Drysdale was much the same. Seven portions of his evidence are verified by him. The first two, those given on 19 June 1995, comprise his evidence in chief and his re-examination, in support of the application for permanent stay on 19 June 1995 but not his cross-examination. The third portion said to have been given on 22 June 1995 in truth was not that evidence but a ruling of the trial judge of 19 June 1995. The fourth and fifth portions comprised again his evidence in chief on 15 August and three questions and answers apparently given in re-examination respectively. It is not clear from the material before me what was the application upon which Dr Drysdale's evidence was given on this occasion nor as to what issue his attention was being directed. The last two portions were his evidence given on 18 August 1995 (examination in chief only) and his evidence on 4 September 1995. On each occasion it appears that his evidence was given in support of an application to stay the trial on the ground of the mental condition of the accused man.

61. As I have mentioned, the witnesses were not cross-examined. What I am presented with, therefore, in order to determine, if it be necessary, the state of mind of the defendant on 27 June 1995 and 9 August 1995 is some, but not all, of the evidence given by some, but not all, of the medical witnesses called some time before those dates or after them and directed, it would seem, to quite different aspects of his mental state.

64. The only other evidence before me was a long affidavit sworn by the defendant himself. For the most part, this contains a summary of the events at trial and of the evidence of certain witnesses and of the trial judge's conclusions, findings and observations, in many cases supported by extracts from the transcript. All of this is, of course, hearsay but it was not objected to. This reference to the incidents, the subject matter of this proceeding, is fleeting and there is absolutely no mention by him of his intent or state of mind at the relevant times.

67. Notwithstanding the criticisms I have made about this evidence, I have anxiously considered it in the light of the submissions of counsel as to the findings I should make as to the defendant's state of mind. I have reviewed the video of each incident.

70. I am satisfied beyond reasonable doubt that when he addressed the court in the terms he did on 26 June 1995 Mr Rich did so consciously and voluntarily and with the intention of reproaching the judge for his decision to proceed with the trial when he, Rich, would have preferred otherwise. He did so with the intention of insulting the judge and of preventing or postponing his arraignment and the empanelling of the jury. He was under stress and it may be that his perception of his situation and his ability to restrain himself were affected by this, by a sense that he was not in control of the situation and, perhaps, by the feelings of persecution that Mr Healey described in his report. But I am satisfied that he intended to do what he did on this occasion and that his purpose was to gain control of the situation notwithstanding that this involved the disruption of the legal process. His conduct amounted to contempt of court.

73. With respect to the incident of 9 August 1995 I am satisfied beyond reasonable doubt that Mr Rich spoke to the prosecutor with the intent to cause her fear. Whether this was to punish her for some perceived wrong done by her or whether it was to modify her conduct in the future or whether it was merely to assert some control over her, or for some other reason, I do not know. Dr Drysdale in his evidence on 15 August said in answer to a question whether the accused man had an agenda in making the statement to the prosecutor,

"What he was trying to do was to reduce the emotional turmoil that he felt inside of himself, to in some way feel a little better. And I think from past experiences, not in this courtroom, and from previous episodes of being in prison, that he has found that it is somewhat effective in reducing his turmoil."

77. I do not think that this, if it were the reason for his threatening words, detracts from their essential character.

80. My task is not to enquire into the motive for the words uttered by Mr Rich on 9 August but rather to make findings as to his intent when he did so. I have had regard to the evidence of Dr Drysdale which was given to assist the judge to determine whether there was likely to be a recurrence of this incident. I have had regard to Dr Drysdale's evidence on the other occasions to which I have been referred and, of course, to Mr Healey's evidence. I have had regard to the demeanour of the defendant as it appears on the video when he made the statement and to the evidence of the custodial officers of his statements immediately afterwards. I have no doubt that Mr Rich intended by his words to interfere with the proper functioning by counsel of her duties in court. This constitutes a contempt of court.

83. I therefore find that the two incidents relied upon by the plaintiff amount to contempt of court. I will make the declarations sought. I will hear counsel as to the appropriate penalty.