In the matter of BAUSKIS [2006] NSWSC 908

SOLICITORS : I V Knight, Crown Solicitor Contemnor unrepresented

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: John Peter Bauskis is charged with contempt in the face of the Court. The particulars of that charge are that the Court having ordered that he should not remain in Court whilst wearing a T-shirt containing the words in large letters "Trial by jury is democracy" he refused to leave the Court and refused a lawful direction to leave made by the officers of the Sheriff. When asked to plead Mr Bauskis declined to do so and, accordingly, exercising the powers of the Court, I entered a plea of not guilty. 2 The circumstances arose out of litigation commenced by one John Wilson and one Eric Jury. The essence of the actions which were commenced by these persons was that they were entitled in the particular circumstances alleged to have a trial by jury. The defendants were instrumentalities of the State of New South Wales. The Crown Solicitor, acting on behalf of the defendants, filed notices of motion seeking summary judgment or to strike out the statements of claim. Those notices of motion, which were filed on or about the 18 July 2006, specified a return date of 24 July 2006. 3 In accordance with the usual practice these, together with other matters appropriate for the duty judge to determine, were called over by the Registrar of this Court. At the time the Registrar did so, a large number of persons, perhaps between twenty and thirty, attended in his Court. It is clear that they were supporters of the plaintiffs, namely, Mr Wilson and Mr Jury. Many wore T-shirts of a kind which has been exhibited in these proceedings and which was worn by Mr Bauskis, containing in large letters the slogan "Trial by jury is democracy". It is inescapable that their coming to the Registrar's Court was by way of supporting Mr Wilson and Mr Jury in their attempts to resist the applications to which I have referred. When the Registrar referred the matter to me, as duty judge, Mr Wilson, Mr Jury and the group which I have mentioned came to Court 2 where it was intended I should sit. 4 When the Court convened the matters were called. Mr Weinstein announced his appearance for the applicants on the notices of motion. Mr Wilson at the bar table, wearing the T-shirt to which I have referred, demanded a jury. I said, "I'm afraid you cannot have one". He said, "You are breaking the law". At this point there was an outcry from the persons gathered in the Court, as I say numbered about twenty to thirty, most of whom were wearing T-shirts identical to that worn by Mr Wilson. They abused me. They shouted offensive statements about corruption. I have no doubt that the reason for this abuse was an attempt to intimidate me in relation to the matter which, I am sure, they were well aware was being agitated by Mr Wilson and Mr Jury. This of itself was a serious contempt of Court. 5 I asked Mr Wilson whether he had any other applications. He asserted, "You are breaking the law and I will arrest you" and he moved forward towards the Bench. I said, "Very well. Remove him please" to a Sheriff's officer in the vicinity. Mr Wilson ignored this and said, "I will arrest you" and then said to the Sheriff's officer, "This fellow is breaking the law and you are aiding and abetting that offence". I said, "Mr Wilson, go. When you have a proper application I will hear what you have to say". Mr Wilson said, "You won't hear anything. I will issue a warrant for your arrest Mr Adams". I said, "There are rules (of conduct) in Court". He said, "You are a fraud and a liar". I mentioned that there were real matters to be determined. He said "A traitor and a fraud" and I directed his removal at which time Mr Wilson said, "I will issue a warrant for your arrest. Expect it." 6 During the whole of this time the Court was in uproar. The persons who had attended to support Mr Wilson and Mr Jury were yelling abuse at me and at the Sheriff's officer. There were references also to their right to trial by jury, Magna Carta, the United Nations and so on. I have no doubt that for some who were lawfully in the Court it was a frightening experience. It was disgraceful conduct. 7 Mr Bauskis has not been positively identified as being present in the Court at this time. However, as will appear from the facts which I am shortly to relate, there can be no real doubt that he was in the Court at this time. 8 I adjourned the Court when Mr Wilson was taken out, hoping that his having been removed would bring about some peace and quiet in the courtroom and enable me to deal with the rest of the list. When I returned, Mr Weinstein mentioned the three notices of motion and started to take me through the case. There were then sitting in Court more or less the same number of persons who had been there earlier and who had acted in an intimidatory and verbally violent fashion. I then said: "… before I do so I have already mentioned to members of the public that a Court of law is not a place for political slogans. If you wish the law to be changed then the place for your slogans is Parliament, not a Court of law. It follows therefore that I must ask you please to go whilst you are wearing those T-shirts." 9 At this a number of persons again shouted abuse. A number loudly insisted upon their rights to wear the T-shirts and asserted I had no lawful authority to direct them either to go or to remove them. "HIS HONOUR: If you wish to hear the proceedings in a courtroom, and members of the public are entitled to do so provided they remain ordered and quiet, you may return without those T-shirts. If you do not go --"

Mr Wilson, who was in Court at the bar table when Court resumed said: "I am not just an ordinary citizen. I am in ignorance as to what's going on. I would like to know where the legislation says you can go ahead and order that to take place. You would have to throw all the people out of Sydney with T-shirts on." HIS HONOUR: I have an inherent right as a Judge of the Supreme Court of New South Wales to order the proceedings in my courtroom."

10 A number of members of the public then, taking on the theme that Mr Wilson had expressed, asserted that they had the right to wear their T-shirts and that I had no right to require them either to be removed or them to depart. I said, "If you do not go" - this is to members of the public wearing these T-shirts, which included Mr Wilson - and was interrupted with cries of "We are not leaving". I continued, "I will have you charged with contempt in the face of the Court. I will have you arrested and I will have you placed in custody". A number of members of the public called "Go ahead". I said, "I am ordering you to go" and there were continued catcalls and other abuse including an assertion by one "We are here to bring justice to the system, your Honour, justice to the system". 11 Of course they were there for no such reason at all. Their conduct was calculated to undermine the administration of justice by intimidation and the instilling of fear in order to bring about orders to which they thought their associates were entitled. This is the very antithesis of the doing of justice and it is disgraceful that people in this community should undertake such conduct. 12 I then asked the officers to enforce my orders. Because I thought it was inappropriate that I should remain on the Bench whilst persons were being arrested, if necessary, and removed from the Court and it was not conducive to the dignity of the Court that I should be present while this occurred, I adjourned. 13 Attempts were then made by the officers to clear the Court of persons who refused to remove their T-shirts. One of those persons was a Mr Rutherford who, when he was arrested, violently resisted. I do not need to say anything about him. He has spent one night in gaol and he has apologised for his conduct and acknowledged his wrongdoing. 14 Mr Bauskis did not leave the Court. He did not take off his T-shirt and when he was asked to by the Sheriff's officers, he emphatically refused to do so. He was then arrested. It must be said that when arrested he went peacefully and I am inclined to doubt the evidence of the Sheriff's officer who said that he thought that Mr Bauskis resisted his removal from the Court. I am satisfied, however, that Mr Bauskis swore at the officers. 15 In these circumstances it seems to me undoubted that a contempt was committed by Mr Bauskis. Furthermore, in the circumstances, it was a contempt in the face of the Court. I had made an order in his presence which he had refused to obey and which he again disobeyed when he was asked to comply by Sheriff's officers after my departure from the Bench. He well knew the orders and his view, stated then and maintained to the present time, is that my order was made without lawful authority and that he was entitled to disobey it. 16 The two contemners were placed in custody and, when I had disposed of other matters in the list, I called them back into Court. I gave them an opportunity to apologise and to acknowledge their wrongdoing. This they refused in emphatic language. I then attempted to obtain from them information which would permit me to grant bail. Again they peremptorily refused to give any information and I had no choice but to refuse bail. They remained in custody overnight until they were brought back the following day. I had suggested to them that they should have legal advice. Each said they did not need it, in terms again which maintained the rightness of their actions and the wrongness of mine. 17 On the following morning there was an appearance by Mr Norris of the Crown Solicitor's Office, having been authorised by the Attorney General to seek my leave to appear as amicus curiae. This is the usual practice where a contempt in the face of the Court has been alleged. I indicated to Mr Norris that, in my view, given the nature of the proceedings, this practice was not appropriate and that the Attorney General should appear in such proceedings for the purposes of prosecuting the charge. These proceedings concern the role of the Court in maintaining the due administration of justice. The State of New South Wales has a fundamental interest in vindicating the Court's position and it should do so directly through the Attorney General. 18 I make this observation, because it is timely, but nothing in this case depends upon the issue. I have been assisted by the Crown Advocate, again authorised by the Attorney General, who has conducted the proceedings with conspicuous fairness and objectivity. 19 When I asked Mr Rutherford again on the morning of the 25 July 2006 whether he was prepared to apologise he said: "My experience of this matter is that I came to this Court yesterday in peaceful support of two fellow Australians asking for justice to be served in their matter. A trial by jury. I wore a T-shirt with words (the transcript says "according to democracy" but I think that's an error) "The T-shirt stated 'Trial by Jury is democracy'. For whatever reason of yours you took offence to that. I, in my sovereignty, felt it was unjust, unfair and unlawful to ask me to remove that T-shirt under threat of arrest. I refused to remove that T-shirt. I was assaulted by your officers under your direction…"

I would not mention this passage except to note that it was adopted by Mr Bauskis, who said: "I come here in the way Peter described and I find that due process and the rule of law did not apply in this particular instance. I asked a simple question, trial by jury, which is part of our Constitution and law, which you should have granted. Now since that was there, you didn't. You had no jurisdiction to even say that we had done anything wrong, which we haven't done anything wrong, so how do you expect us to apologise for something we didn't do? We had no control over anything that happened here in Court so why should we apologise to the Court? The Court was the one that has done things illegally. Thank you." 20 Aside from being a rejection of my suggestion that it might be appropriate to apologise I think this statement indicates indeed that Mr Bauskis was in Court at all material times, that he was aware of the order and decided that he would not obey it because he wanted to support Mr Wilson and Mr Jury and because he thought the order was wrong. I need hardly say that, if people refuse to obey orders of the Court just because they think they are wrong, that would undermine in a fundamental way the authority of the Court and the administration of justice. It would be a recipe for chaos and it would significantly undermine the rule of law. 21 Throughout the proceedings Mr Bauskis has continued to maintain that he was justified in what he did and that I was wrong. Hoping that he would at least separate himself from those persons who were abusive and disruptive (that having been a material factor which appeared to be conduct which he supported and was by his presence encouraging and, hence, that it is a matter that he might wish to make a submission about), I asked him about it towards the end of the hearing. The Crown Advocate concluded his submissions in this way: "…your Honour has evidence clearly of the direction given, of the Sheriff's officer enforcing that direction, the direction given in clear terms to Mr Bauskis, consequences being explained to Mr Bauskis, and a defiant refusal to comply with that direction. That in my submission your Honour clearly amounts to defiance of your Honour's clear orders, and constitutes a contempt of court. That finding is open to your Honour beyond reasonable doubt." HIS HONOUR: Do you wish to say anything? BAUSKIS: First of all this whole case is a farce. At no time has it been shown or proved that I committed a contempt of the Court. This all is a carry on about what happened when you were out of the courtroom. Where is the contempt there?" HIS HONOUR: Is it your submission that I could not conclude that you were aware of the orders I made?" BAUSKIS: They were unlawful orders. Really.

… Disobeying your order does not constitute contempt of court, because disobeying your order did not interfere with the administration of justice. Justice is the protection of rights and the punishment of wrongs. Your order was in fact oppressive and unreasonable. You took exceptions to the words "trial by a jury is democracy", words which are in fact in support of the protection of this essential right.

Because we haven't got a jury. You refused that also. Which you have no right to do that. You actually broke the law yourself in doing that. You're arbitrary, that is derives from your mere opinion unrestrained, despotic. Your order left me with no alternative than to disobey it because it was sinister and aimed at crushing the spirit of liberty. That is the first part." 22 Mr Bauskis then made submissions about the inappropriateness of the proceedings because I brought the charge and I was also determining it. He then said: "We came here with T shirts, not to intimidate. That is what you said I think. We came and others with T shirts to intimidate or influence you into making orders sought by Mr Wilson, whereas we came and others in support of the right of all free men to trial by a jury, and any thought that WE were wearing T shirts to intimidate, to inspire with fear, could only have been in the mind of you. … How could we intimidate you with a T-shirt?"

HIS HONOUR: What do you say then about the abuse and the shouting when I refused Mr Wilson's order?" BAUSKIS: You brought it on. Nobody else did.

HIS HONOUR: That was my fault?" BAUSKIS: Yes." HIS HONOUR: By refusing his order I brought on myself the abuse?" BAUSKIS: Yes." 23 This demonstrates not only that Mr Bauskis allied himself from the very beginning with Mr Wilson's and Mr Jury's campaign, not only that he was there with the purpose of supporting the demonstration, but also believed that the response of violent abuse was justified. 24 I mention these facts not because they are themselves the contempt of court with which Mr Bauskis is charged. I mention them because they place the offence in a context which shows that this case is much more than merely about wearing a T-shirt. It is much more than merely about campaigning for a jury. They provide the context in which to assess the seriousness of the conduct giving rise to the charge of contempt. 25 It is a notorious fact that, whether or not juries may be called in cases is a matter governed by the statutes of New South Wales and that those statutes are made and changed by the Parliament. This Court has no power to change or ignore them. To attempt to do such a thing simply because there are persons who passionately believe that the law should be changed and attempt to influence judges to do so would itself be an attack upon our democracy. 26 I have concluded the elements of the charge of contempt have been established beyond reasonable doubt and, accordingly, I enter a verdict of guilty.

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