Hinch and Macquarie Broadcasting Holdings Limited v The Attorney-General for the State of Victoria

2. On 17 December 2001 CBD appeared for trial before me and the trial commenced on that date. No application for bail was made and he remained in custody when the Court adjourned for the lunch break at 1.00 pm. At that stage a male prosecution witness was still giving evidence.

3. According to the affidavit of Detective Senior Constable Graham Schmidt and that of Robert Steven Smith, a custodial officer, both sworn 18 February 2002, CBD was at the relevant time being led by Mr Smith from courtroom number 5 through the foyer in the direction of the door of the court building that opens on to Knowles Place. A number of witnesses attending court for the purpose of the trial and in answer to subpoena were sitting on a bench some few metres away. As he passed by them, CBD put his right hand to his head and gestured, according to Detective Senior Constable Schmidt, in imitation of discharging a gun.

4. Oral information essentially to similar effect was before me on 21 December 2001 and, in my view, justified proceedings being initiated by the Court to deal with CBD for contempt of court in attempting to intimidate witnesses.

5. On return of the order nisi the deponents of the affidavits were cross-examined and there was further evidence. CBD was represented by Ms Ryan, a legal practitioner. Ms De Veau, a legal practitioner and also an officer of the Director of Public Prosecutions appeared instructed by the Registrar. The deponents of the affidavits adhered to their contents. Detective Senior Constable Schmidt claimed that the sister of CBD was amongst those witnesses to whom the gesture was directed.

6. CBD gave evidence. He did not deny doing what was alleged. He said that his gesture was not directed to the witnesses and was not intended to be hostile or a threat to anyone. He said that it was directed to his father who was also seated nearby. He said that the gesture was intended to indicate to his father that things were going so badly in the courtroom that he might as well shoot himself. He claimed that he said to his father as he gestured, "This is fucked", which was intended to confirm the meaning of the gesture.

7. It had not been suggested to the other witnesses when cross-examined that CBD had said anything at all during these events.

8. The father of CBD gave credible evidence. He said that as CBD was being led away, CBD gestured as if to shoot himself in the head and said, "He's a fucking idiot".

9. The sister of CBD gave credible evidence that she was not present at court on 17 December 2001.

10. Although contempt proceedings are not criminal proceedings, the contempt must be established beyond reasonable doubt.

11. In the light of all the evidence I concluded that there was some doubt about exactly what it was that CBD had done, to whom his gesture was directed and about what he intended to convey by it. It must be proved at least that the conduct proved tends to interfere with the administration of justice and, according to some authorities, that such interference is intended. Neither was established beyond reasonable doubt in the light of the evidence subsequently given by CBD and his father.

12. Where proceedings for contempt of court are instituted by a court of its own motion, there is no interposition of a prosecuting authority, since the function that is exercised by the court is not to be exercised or controlled by the executive: Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at 429; [1999] HCA 57 at [112].

13. This was a proceeding brought by the Court of its own motion. Counsel who appeared in the trial for the Director of Public Prosecutions put before the Court the material which was sufficient for the making of the order nisi. It was proper for counsel to do so as an officer first and foremost of the Court and notwithstanding being also an officer of the Director of Public Prosecutions. That material was confirmed on oath at the return of the order nisi and made out a prima facie case of contempt.

14. As contempt proceedings are on the civil side of the Court, the ordinary rule that costs follow the event applies: Hinch and Macquarie Broadcasting Holdings Limited v The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 at 89. But against whom should the order for costs be made? In former days it could be simply against the Crown and could be expected to be met by the Crown in one or other of its manifestations from consolidated revenue. However, since the grant of self government to the Territory and since the creation of the independent office of Director of Public Prosecutions it is difficult to know where the liability for costs should fall, whether on the Court, the Registrar, the Director of Public Prosecutions, counsel for the prosecution, the officers who furnished the information that caused the order to be made, the Attorney-General or the Territory itself. None of those persons or parties has had an opportunity to be heard on the matter. However, further delay and the incurring of even more costs is to be avoided. In the circumstances I see no alternative to ordering the Registrar to pay the costs of CBD. Knowing that the Court's budget does not include any grant of funds to pay the costs of litigants I think that it is appropriate to direct that the Registrar be indemnified by the Territory in that regard, with liberty to apply by any interested person or party in respect of further consideration or enforcement of those orders.

15. Hence it would follow in accordance with authority that, notwithstanding the justification of the order nisi, CBD should have an order for costs in his favour.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the Applicant: ACT Director of Public Prosecutions