[2003] TASSC 80

CITATION: Martin v Trustrum (No 3) [2003] TASSC 80

Procedure - Contempt, attachment and sequestration - Power of court to punish for contempt - In general.

Sentencing Act 1997 (Tas), s101.

Morris v Crown Office [1970] 2 QB 114; Nicholls v Director of Public Prosecutions (SA) [1993] SASC 3964; (1993) 61 SASR 31; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, followed.

Hinch & Anor v Attorney-General [1987] VicRp 62; [1987] VR 721, referred to.

Attorney-General v Whiley (1993) 31 NSWLR 314, distinguished.

Judgment Number: [2003] TASSC 80

JANINE MARCIA MARTIN v THOMAS EDWARD TRUSTRUM (No 3)

1 Following the finding that the respondent was in contempt of court (Martin v Trustrum (No 2) [2003] TASSC 50), the question arises as to the permitted and appropriate penalty.

2 The contempt, as found, was that of the filing of an affidavit intended to be read as part of the proceedings. The contempt comprised prepared statements alleging judicial corruption for financial gain and transcended impetuous emotional response. The specific findings were those of allegations:

(1) conducted secret hearings designed to favour the interest of a particular counsel because of a long held association;

(2) determined the outcome of proceedings in a manner which advantaged the financial interests of a particular counsel;

(3) was himself corrupt and engaged in fraudulent and criminal conduct;

(4) engaged in fraudulent and criminal conduct for personal financial gain; and

(5) did so in a particular case, namely the defamation action brought by the applicant against the respondent."

3 Mr Trustrum is aged 71. He has led a productive life until becoming obsessed with a claim of injustice. He has been afforded an opportunity to accept, or at least understand, that his persistence with unfounded and intemperate accusations is both unwarranted and cannot be countenanced. He states, through counsel, that he does not resile from his statement, although he claims to be now aware of the need to use temperate language. Whilst public discourse concerning, and criticism of, the judicial process is a healthy component of democracy and courts should be mindful of the "good sense of the community" (Ex parte Attorney-General; Re Goodwin [1969] 2 NSWLR 360; O'Hair v Wright [1971] SASR 436; Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238), the failure of Mr Trustrum to acknowledge responsibility leaves the Court no alternative but that of sanction.

4 The power of the Court is derived from its inherent jurisdiction to protect the integrity of its proceedings and to ensure compliance with the rule of law. Its power to punish for contempt is derived from the enactment of the Australian Courts Act 1828, and its current execution of that power provided for by the Supreme Court Rules 2000, r942(9), which relevantly states:

"942 - (1) An application for punishment for contempt of court, other than contempt in the face of the Court, is to be -

(b) specify the nature of the alleged contempt.

(a) in the proceeding with reference to which the contempt is alleged to have been committed; or

(b) if it is not alleged to have been committed with reference to any particular proceeding, 'the Queen against' the respondent, naming the respondent.

(3) Unless the Court or a judge otherwise orders, the application is to be served personally on the respondent.

(4) If an application has been filed and it appears to a judge that the respondent is likely to abscond, the judge, by warrant directed to the Sheriff, may direct that the respondent be arrested and brought before the Court or a judge.

(5) A respondent brought before the Court or a judge under a warrant is to be detained in custody until the charge is disposed of, unless the Court or a judge grants bail.

(6) On the hearing of the application, the Court may order the respondent to answer on oath within 4 days interrogatories relating to the alleged contempt.

(7) The respondent, unless otherwise ordered, is to answer the interrogatories by affidavit.

(8) If the respondent is ordered to answer interrogatories, the hearing of the application is to be adjourned for a sufficient time to allow the answers to be made and filed.

(9) On the hearing of the application, the Court may -

(a) commit the respondent to prison for a fixed term or until the occurrence of some event; and

(b) impose a fine, either instead of or in addition to ordering committal; and

(c) if it imposes a fine, commit the respondent to be imprisoned, or further imprisoned, until the fine is paid; and

(d) make any order as to costs as is appropriate.

(10) If the accused person is ordered to be committed to a prison, the order of committal is to specify which prison.

(11) The Court may order the discharge of a respondent committed to prison, even though the time for which the respondent was ordered to be committed has not expired."

5 It is not appropriate to impose a pecuniary penalty. As a result of the defamation proceedings which led to his filing of the offending affidavit, Mr Trustrum has been ordered to pay damages in an amount of $40,000, together with costs. His home and motor vehicle have been sold in furtherance of recovery of these amounts and he has no other assets. He is currently residing in a hostel in New South Wales and his age precludes any highly remunerative employment.

6 Mr Trustrum claims to have become involved in a campaign to redress perceived wrongs, both personal and at large, at the hands of the legal profession and the courts. He represents himself as a public spokesperson for disempowered persons and, at the time of his involvement in the events giving rise to these proceedings, believed that he carried with him their expectations. His purpose in filing the affidavit was the mistaken belief that by doing so he could republish the contents as a record of court proceedings protected by privilege. I would be reluctant to convert obsession into martyrdom by imposing an immediate custodial sanction. The use of State power in this form against an individual in circumstances such as these ought only be exercised as a last resort.

7 The Court, as a court of record, is exercising inherent power derived from common law principles (The King v Taylor & Others; ex parte Roach [1951] HCA 22; (1951) 82 CLR 587). At common law there was no power to suspend a sentence of imprisonment, such power being a creation of statute (Morris v Crown Office [1970] 2 QB 114). The Sentencing Act 1997 ("the Act"), s7(b), permits a court to:

"... order that the offender serve a term of imprisonment that is wholly or partly suspended."

While the purpose of the Act (s3) includes the amendment and consolidation of "the State's sentencing law", it applies when (s7):

"A court ... finds a person guilty of an offence may ... subject to any enactment relating specifically to the offence."

8 The Acts Interpretation Act 1931, s46, defines an offence as meaning:

"... any contravention of, or failure to comply with, a law for which a person is liable to be punished, whether summarily or otherwise."

9 There has been a difference between jurisdictions as to whether the inherent powers of contempt have been absorbed or modified by the enactment of special sentencing laws. Courts in the United Kingdom and the States of Victoria and South Australia have concluded that, absent specific reference, Sentencing Acts or their equivalent do not impact on the historic powers afforded the courts in dealing with contempt. In Morris (supra), the Court of Appeal determined that the Criminal Justice Acts 1948 and 1976 did not affect the power of the High Court to punish for contempt. It accepted that the term "in respect of one offence" appearing in the 1967 Act was "wide enough to include contempt in the face of the court" since "all our old books from the earliest times say that it is a misdemeanour at common law which is punishable on indictment, by fine or imprisonment, as all misdemeanours are" (Lord Denning at 123 - 124). However, the court did not accept that the legislature "never intended the section to apply to a committal for criminal contempt ... because there is no power ... for any High Court judge to give effect to a suspended sentence - if he gave one - for a committal for contempt of court. The Act contains provisions which enable all the ordinary criminal courts to follow up their suspended sentences" (Lord Denning at 124). In Tasmania, only an authorised person can apply for an order activating a suspended sentence (the Act, s27), an authorised person being "the DPP, a police officer or probation officer" (the Act, s4). Further, a suspended sentence imposed in accordance with the Act might be activated by the commission of another offence which might include matters totally unconnected with the purport of a contempt sanction (the Act, s27). In Morris (supra), Salmon LJ reached a similar conclusion, stating at 129:

"The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: Skipworth's Case, LR 9 QB 230 and Rex v Davies [1906] 1 KB 32. This power to commit for what is inappropriately called 'contempt of court' is sui generis and has from time immemorial reposed in the judge for the protection of the public. Although the point is by no means free from difficulty, I agree with my Lords that Parliament cannot be taken to have intended that this power should be fettered by the Criminal Justice Acts of 1948 and 1967. To my mind it is plain that Parliament never intended these Acts to apply to proceedings such as these. For one thing, the Act of 1967 supplied no machinery whereby a suspended sentence for contempt of court could ever be made effective if the culprit repeated his offence."

10 Morris was applied by a Court of Appeal (Civil) differently constituted in Lee v Walker [1985] QB 1191 and by the Criminal Division in R v Palmer [1992] 3 All ER 289. A similar conclusion was reached by the Supreme Court (in Banco) of South Australia in Nicholls v Director of Public Prosecutions (SA) [1993] SASC 3964; (1993) 61 SASR 31 on the basis that an order that a contemptor be imprisoned until he or she has purged the contempt is not a sentence within the meaning of the Criminal Law Sentencing Act 1988 (SA). The English approach was followed by the Victorian Full Court in Hinch & Anor v Attorney-General [1987] VicRp 62; [1987] VR 721.

11 It is said that support for the contrary view can be had in the following statement of the Court of Appeal (NSW) in Attorney-General v Whiley (1993) 31 NSWLR 314, when, in their joint judgment, Clarke, Meagher and Handley JJA, stated at 320 - 321:

"On its face it imposes the expressed obligations on every court which sentences a person to imprisonment for an offence, which is itself a word of wide meaning which is not defined in the Act. There are, however, specific exclusions from the operation of Pt 2 and these are contained in s 13. Sentencing for contempt is not one of the categories referred to.

The width of the terms in which the Act is expressed provide support for the view that the legislative intention was to create a code in respect of the procedures to be followed where a person is sentenced to imprisonment by a court. The categories of orders excluded by s 13 are the only areas in which the Act is expressed not to operate and it can be readily seen that the provisions of the Act would not be relevant to such orders, either because of the nature of the type of imprisonment (periodic detention) or because of the purpose of the detention. There is nothing in the punishment for contempt which would make the provisions of Pt 2 of the Act similarly inappropriate.

There are, in addition, strong policy reasons for applying the Act to the sentencing of a person for contempt. First, it would provide consistency in sentencing, especially where the contempt could also amount to an offence under the Crimes Act; secondly, it is to the benefit of the opponent that, if sentenced to imprisonment, he is given the opportunity to have parole and to serve part of his sentence under supervision in the community; and thirdly, the Sentencing Act provides for a more flexible sentencing approach so that the sentence can be structured to take into account more readily the interests of both the community and the offender and to provide for supervision upon release from custody.

It is true that courts in other jurisdictions have seen a need to exclude normal sentencing principles in respect of sentences for contempt. An example is Morris v Crown Office [1970] 2 QB 114. There it was said that a judge had erroneously ordered the imprisonment of certain persons in contradiction of a number of sections of the Criminal Justice Act 1948 (UK). But that Act, and the Criminal Justice Act 1967 (UK), imposed fetters upon the power to imprison which, if applicable to cases of contempt, struck at the powers of the courts to protect the integrity of the administration of justice. Because the provisions of those Acts, if applied to contempt of court, would impose unacceptable fetters upon the power to imprison, the Court of Appeal concluded that it was not the intention of parliament that sentencing orders for contempt should came within their provisions.

There are no similar considerations in respect of the Sentencing Act 1989. None of its provisions in any way fetter the power of the court adequately and properly to deal, and deal promptly, with contempts of court. Although the court in Registrar of the Court of Appeal v Maniam [No 2] held that powers under the Community Service Orders Act 1979 did not apply when a person was found guilty of contempt no reason appears from that decision why the Sentencing Act itself should not apply where a person is imprisoned for contempt. In these circumstances the proper conclusion is that the provisions of the Sentencing Act do apply."

12 The reasoning of the court was that the contempt power was not fettered by the relevant legislation and that therefore the court could make use of a legislative statement, not necessarily a requirement, in making an order. If that analysis be incorrect, then the decision can be readily distinguished because of the acceptance by the court that "the legislative intention was to create a code in respect of the procedures where a person is sentenced to imprisonment by a court". Whiley was followed by Dunford J in Wood v Staunton (No 5) (1995) 86 A Crim R 183, although it appears that the issue was not argued. In Wood v Galea (1996) A Crim R 274, Hunt CJ felt bound by the decision in Whiley, although he felt that the power to discharge a contemptor before the expiration of the term imposed was inconsistent with the scheme of the Sentencing Act. I would prefer the reasoning of the Court of Appeal (NSW) in the earlier case of Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. In his reasons for judgment at 314, Kirby P stated the origin of power in the following exposition:

"A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabbin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or 'excessive fines': see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695."

13 He concluded that the power, not fettered by statute, could be exercised in conformity with it as part of the exercise of inherent power, and stated, at 319:

"The Court has no express power to impose an obligation of community service on the opponent: cf Community Services Orders Act 1979, s 4. Although punishment for contempt is criminal in nature, it derives from the inherent power of the Supreme Court. It therefore does not attract the express statutory provisions relating to community service. Nevertheless, it was not contested by either party that the Court might, in effect, impose an obligation of community service in the Liverpool Hospital provided the hospital was prepared to accept the opponent and as a condition for suspending the operation of the fine which would otherwise be imposed: cf Adams v Carr (1987) 47 SASR 205 at 211. Placed before the Court, after argument was concluded, was a letter from the Liverpool Health Service expressing the Liverpool Hospital's willingness to accept voluntary service by the opponent on Sundays from 9am to 1pm in the Hospital's Emergency Department."

14 The weight of authority is that unless specifically provided for by Parliament, the inherent power of the Court is not inhibited by statute, but might be exercised in conformity with a statutory aim. This Court does not derive its power to punish for contempt from statute and in turn is not restricted in its exercise of power by a general statute. However, inherent power can be enhanced by the adoption by the Court of a statutory "option", although the executive cannot be obligated to accommodate the exercise of power without its consent or an obligation imposed by Parliament. Thus, a requirement of probation would not necessarily require the executive to give effect to the terms of the order. Comity might suggest accommodation, but not obligation. Exercise of common law power would require obligation and compliance. In this case, the imposition of a suspended sentence might be within power, but its making would not require the executive to raise its breach. The imposition of a suspended sentence would not be an exercise of power afforded by the Act.

15 A common law bond was a vehicle used before the enactment of modern penal legislation to achieve a result similar to that of a suspended sentence. The Act, s101, provides:

"101 - A court does not have jurisdiction to release a convicted offender on a recognisance or bond to be of good behaviour and to appear for sentence when called on."

16 If the Act does not afford the Supreme Court to impose a suspended sentence for contempt, then it would be incongruous if the same legislation could deprive the Court of an historic equivalent power without specifically stating such to be the case. The use of a common law bond or its equivalent was considered by Lord Denning in Morris (supra), when he stated, at 125:

"I hold, therefore, that a judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence. I have often heard a judge say at common law, for ordinary offences, before these modern statutes were passed:

'I will bind you over to come up for judgment if called upon to do so. Mark you, if you do get into trouble again, you will then be sentenced for this offence. I will make a note that it deserved six months' imprisonment. So that is what you may get if you do not accept this chance.'

That is the common law way of giving a suspended sentence. It can be done also for contempt of court."

"6 This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders."

18 Section 101 applies to a "convicted offender". It does not apply to a person subject to punishment for contempt. Here the Supreme Court is exercising civil jurisdiction and not engaged in the imposition of the criminal law. It is entitled to exercise powers of maintaining the efficacy of its own proceedings, not the wider application of sanction prescribed by Parliament.

19 I will adopt the course stated by Lord Denning in Morris. Thomas Edward Trustrum will be bound over for a period of three years to come up for judgment if called upon to do so. These reasons for judgment will record my determination that the conduct deserves a sentence of imprisonment for a period of three months. Repetition of contempt of court during the period of three years will activate that sentence.