MacGroarty v Clauson

The appellant is a member of the Queensland Bar. He was counsel for the accused in a trial before a judge and jury in the District Court at Southport when he was fined $100 for "contempt of Court". The Full Court of the Supreme Court of Queensland granted the appellant leave to appeal from the order imposing the fine. By majority (Matthews and Dowsett JJ., Carter J. dissenting), the appeal was dismissed with costs. The present appeal to this Court is from the judgment and orders of the Full Court in that regard.

The verbal exchange between the learned trial judge and the appellant which gave rise to his Honour's decision to fine the appellant took place during the appellant's cross-examination of a prosecution witness. The transcript of the earlier parts of that cross-examination is not before the Court. It is, however, apparent from so much of the transcript as relates to the finding of contempt that the learned trial judge had formed the view that the appellant's cross-examination of the witness had become tedious and repetitive. In the Full Court, Carter J. commented that an examination of the earlier parts of the transcript "suggests a sound basis for the learned trial judge's concern" in that regard. Be that as it may, the stage was reached where the trial judge directed the appellant to refrain from again reading to the witness a passage from his evidence in the committal proceedings. The transcript, in which his Honour refers to that direction as a ruling, continues:

his honour: You have been cross-examining for a long time now.

mr. macgroarty: On an important matter, Your Honour.

his honour: You have been going round and round and not getting down to the issues.

mr. macgroarty: With respect, Your Honour, that is your opinion.

his honour: Will you keep quiet while I am speaking?

his honour: Mr. Bailiff, remove Mr. MacGroarty from the Courtroom. Take the jury out first.

his honour: Mr. MacGroarty, I told you to stop speaking while I was speaking and you have refused. Is there any reason why I should not deal with you for contempt?

his honour: I said, "Will you stop speaking while I am speaking?" You said you would not. That goes beyond bad manners. It is a deliberate contempt as far as I can see.

mr. macgroarty: I was trying to put on record that Your Honour, in making a ruling, passed an opinion that I was not getting down to the issue.

his honour: "Will you get down to the issue?" I said to you, "Will you stop speaking while I am speaking?" you said you will not. What have you to say about that?

his honour: I am giving you the opportunity before I deal with you for contempt.

his honour: You are fined $100 for contempt of Court.

The powers of a judge of the Queensland District Court to punish for conduct of the kind involved in the common law offence of contempt in the face of the court are contained in s. 105 of the District Courts Act 1967 Q.. It is convenient to set the provisions of that section out in full. They read:

(a) wilfully insults a Judge or a juror or a Registrar, bailiff, or other officer of a Court, during his sitting or attendance in Court, or in going to or returning from the Court; or

(b) wilfully interrupts the proceedings of the Court or otherwise misbehaves himself in Court; or

(c) unlawfully obstructs or assaults any person in attendance in Court; or

(d) without lawful excuse disobeys any lawful order or direction of the Court at the hearing of any proceeding,

he shall be guilty of an offence and may be excluded from the room or other place in which the Court is sitting by order of the Court, and may, whether he is so excluded or not, be dealt with as provided hereinafter by this section.

(2) A bailiff or other officer may, with or without the assistance of any other persons, by order of the Court, take an offender against paragraph (a), (b) or (c) of subsection (1) of this section into custody and detain him until the rising of the Court.

(3) If any person shall do any other act or thing which is a contempt of a District Court he shall be guilty of an offence under this section.

(4) The Court may order an offender under this section, whether he is excluded from the room or place in which the Court is sitting or not or whether he is taken into custody or not, to be committed to prison for any period not exceeding three months, or may impose on the offender a fine not exceeding three hundred dollars, and in the latter event may also order that in default of payment the offender shall be committed to prison for any period not exceeding three months unless the fine is sooner paid.

(5) In imprisoning or fining an offender under subsection (4) of this section, there shall be no need to take any evidence on oath or issue any summons, but at any time before the rising of the Court, he shall be called upon to show cause why he should not be punished.

The case has been argued on the clearly justified basis that the provisions of s. 105 are, for relevant purposes, exhaustive of the powers of a District Court judge to punish summarily for contempt. Those provisions create a number of specific statutory offences (sub-s. (1)(a), (b), (c) and (d)) and a general residual offence (sub-s. (3)). Some of the specific offences which s. 105(1) creates contain elements which would have been unnecessary for conduct, of the kind to which they refer, to constitute a common law contempt. In particular, pars. (a) and (b) introduce "wilfully" as an element of the offences which they create. As this Court pointed out in Lewis v. Judge Ogden [1] , when speaking of the comparable provisions of s. 54A(1) of the County Court Act 1958 Vict.:

At common law words or conduct in the face of the court or in the course of proceedings, in order to constitute contempt, "must be such as would interfere, or tend to interfere, with the course of justice" (Parashuram Detaram Shamdasani v. King-Emperor [2] ). Instead of making interference, or tendency to interfere, with the course of justice an element in the offences which it created, sub-s. (1) introduces the new element of conduct which is wilful in pars. (a) and (c). In these two paragraphs the word "wilfully" means "intentionally", or "deliberately", in the sense that what is said or done is intended as an insult, threat, etc. Its presence does more than negative the notion of "inadvertently" or "unconsciously" (Bell v. Stewart [3] ). The mere voluntary utterance of words is not enough. "Wilfully" imports the notion of purpose. If all the elements of a particular statutory offence created by one or other of the paragraphs of s. 105(1) are present, the offence will have been committed regardless of whether the conduct would have constituted contempt at common law. It is only if the conduct in question does not encompass all the elements of one or other of those specific offences that it will be necessary to consider whether it would, but for the section, have constituted a common law contempt in the face of the District Court. If it would have constituted such a common law contempt, it will be an offence under s. 105(3). That is not to suggest that one or more of the offences created by s. 105(1) and (3) cannot be charged in the alternative. 1. (1984) 153 C.L.R. 682, at p. 688. 2. [1945] A.C. 264, at p. 268. 3. (1920) 28 C.L.R. 419, at p. 427.

It has long been settled that "no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him" (In re Pollard [4] ; Coward v. Stapleton [5] ; Appuhamy v. The Queen [6] ). When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the "gist of the accusation" is made clear to the person charged (see Chang Hang Kiu v. Piggott [7] ; Coward v. Stapleton [8] ). Where, however, the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge (cf. Cotroni v. Quebec Police Commission and Brunet [9] ).

1. (1868) L.R. 2 P.C. 106, at p. 120. 2. (1953) 90 C.L.R. 573, at pp. 579-580. 3. [1963] A.C. 474, at p. 482. 4. [1909] A.C. 312, at p. 315. 5. (1953) 90 C.L.R., at p. 580. 6. (1977) 80 D.L.R. (3d) 490, at p. 497.

It is possible to discern in the provisions of s. 105, particularly sub-ss. (1) and (5), a legislative intent that the ability of the District Court to deal promptly and effectively with the statutory offences which the section creates should not be unduly impeded by formal procedural requirements. There is, however, nothing in the section which would warrant the conclusion that it was the legislative intent to dispense with the fundamental requirement that a person should not be punished for a statutory offence of contempt of court unless the particular offence charged has been distinctly identified and he has been given an adequate opportunity of answering the charge. Indeed, so much was recognized by this Court in the closing sentence of the joint judgment in Lewis v. Judge Ogden where, notwithstanding that no question of the adequacy of the charge had been raised by the parties, the Court was at pains to point out [10] that, in relation to the comparable provisions of s. 54A(1) of the Victorian County Court Act, "the charge of contempt should specify the nature of the contempt, i.e., that it consists of a wilful insult to the judge, and identify the alleged insult". In that regard, it should be mentioned that the first of the specific statutory offences created by s. 54A(1), like the first such offences created by s. 105(1) of the Queensland Act, was that of wilfully insulting a judge.

The transcript of the proceedings in the District Court in the present case discloses that the learned trial judge made no express reference to the provisions of s. 105 of the District Courts Act in imposing the fine of $100 "for contempt of Court". Nor did his Honour make any attempt to identify the particular statutory offence with which the appellant was charged. His Honour made clear that the conduct which, in his view, constituted contempt of court was the appellant's answer "NO, I won't", to his Honour's remark, "Will you keep quiet while I am speaking?" One can only speculate about which, if any, of the statutory offences created by s. 105 might have been identified by the learned trial judge if he had made express reference to the provisions of that section. As Carter J. pointed out in the Full Court of the Supreme Court, it is arguable that the appellant's conduct constituted the offence of wilfully insulting the learned trial judge (s. 105(1)(a)) or the offence of wilfully misbehaving himself in the District Court (s. 105(1)(b)) or the offence of disobeying, without lawful excuse, a lawful order or direction of the District Court at the hearing of any proceeding (s. 105(1)(d)). Alternatively, it may be arguable (although not suggested in the judgments in the Full Court or in argument in this Court) that the conduct did not fall within any of the particular provisions of s. 105(1) but constituted some "other" act or thing which was a contempt of the District Court and, therefore, constituted the statutory offence created by s. 105(3). It may well be that the appellant, if charged with a specific offence under s. 105(1), may have wished to submit that one or other of the elements of that specific offence was not present (e.g. that any insult to the learned trial judge was not wilful or that any refusal to obey a lawful direction was not without lawful excuse). Be that as it may, the failure of the learned trial judge to identify the particular offence alleged against the appellant had the result that the appellant was not properly charged with a particular identified offence and thus was not accorded an adequate opportunity of defending himself against a charge that he was guilty of the offence for which he was fined. Indeed, in the circumstances of the present case, the failure of the learned trial judge to specify the particular offence with which the appellant was charged has resulted in a situation where, even at this stage, it is impossible to identify what that particular offence was. It follows that the order that the appellant be fined $100 for contempt of court cannot be allowed to stand.

In the result, the appeal should be allowed. The order of the Full Court of the Supreme Court should be set aside and in lieu thereof it should be ordered that the appellant's appeal to that court be allowed with costs and that the order of the learned trial judge that the appellant be fined $100 be quashed.