National Australia Bank Limited v Juric

Supreme Court of Victoria|2002-03-26|Before: Gillard J

The application of the criminal concept of mens rea is a controversial subject in the area of contempt. In A-G v Newspaper Publishing (1987) 3 All ER 276, Sir John Donaldson MR, at p.303, stated this -

"Mens rea in the law of contempt is something of a minefield. The reason is that it is wholly the creature of the common law and is developed on a case by case basis, as no doubt it will continue to do."

As his Lordship went on to note, some instances of contempt of court do not depend upon proof of any intention. In some cases of contempt, a strict liability rule applies.

Nevertheless, putting aside the use of the phrase "mens rea", I accept Mr Burns' submission that before I could treat the civil contempt as a criminal contempt, I would have to be satisfied of the deliberate defiance or contumacious conduct. I have already held that Mr Juric did deliberately defy the order of Beach J, not only in respect to the two charges of contempt in the present proceeding, but also in respect of the charges I heard last year.

The trial before me on the prior occasion was heard over six days, and I have no doubt that Mr Juric was very well aware of the nature of the proceedings and had a good understanding of what the proceeding was all about. Indeed, this view is supported by observations made by Dr Barry-Walsh, a forensic psychiatrist, who prepared a report on behalf of the defendant dated 7 January 2002, which was tendered in evidence by Mr Burns. He does have a good understanding of the basic legal procedures.

Despite this and despite the undertaking being given which resulted in the sentences being suspended, within a matter of just over four weeks, he was defiantly breaching the orders again.

For the reasons which I also stated on the earlier occasion, I find that these contempts were serious, I treat them as criminal and it is appropriate that I should record a conviction in relation to each one. It follows that he breached the undertakings signed by him on 10 October 2001.

Having made those findings, it is necessary, first, to consider what is the appropriate penalty for the two contempts committed on 8 and 16 November 2001 respectively, and then what should be done concerning the breach of the undertakings which underpinned the suspension of the sentence imposed on 10 October 2001.

Normally a Court, after finding the charges of contempt have been proven, hears submissions in relation to the appropriate penalty. However, at the hearing before me on 27 February 2002, Counsel addressed me on the question of penalty in the event that I found the charges proven.

Mr Burns submitted that the two offences should be treated as civil contempts, and that the Sentencing Act 1991 did not oblige the Court to re-activate the sentence which had been suspended. This argument was on the basis that a civil contempt is not punishable by imprisonment and therefore s.31 of the Act, which deals with a breach, did not apply. Section 31 only operates if a person, the subject of a suspended sentence, commits another offence punishable by imprisonment. I do not have to consider that question because I treat the contempts as criminal. But I question the assertion that a civil contempt is not punishable by imprisonment. In the alternative, he submitted that the Court should find exceptional circumstances within the meaning of s.31(5A) of the Sentencing Act 1991, not restore the sentence but impose an intensive correction order pursuant to s.19(1) of the Act.

Mr Burns submitted that the Sentencing Act did apply and accepted that if that was so, then the prima facie rule applied, which is established by s.31(5)(a) supported by s.31(5B), that upon proof of the guilt of another offence punishable by imprisonment, the Court must restore the sentence or part sentence held in suspense and require the offender to serve it. Section 31(5A) gives the Court power to dispense with that requirement, if it is "of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made."

The first step is to consider what is the appropriate sentence for the two offences occurring on 8 and 16 November respectively. Taking into account the circumstances and in particular the circumstances leading up to the convictions imposed on 10 October 2001, I view the offences as serious and committed by a man who defiantly challenges the authority of this Court.

In accordance with the principles of sentencing, I sentence Mr Juric to one month's imprisonment in respect of the contempt committed by him on 8 November 2001, and in respect of the contempt committed on 16 November 2001, I sentence him to a period also of one month's imprisonment in respect of the second offence. If I had been satisfied beyond reasonable doubt that his solicitor had warned him on or after 8 November and prior to 16 November that what he was doing was in breach of Beach J's order, I would have imposed a longer period of imprisonment in respect of the latter offence. These two periods of imprisonment are to be served cumulatively.

This now brings me to what course the Court should take in respect of the breach of the undertakings which were a condition of suspending the earlier sentences. The outcome of that consideration will effect what the Court should do in relation to the two periods of imprisonment.

The first question to consider is the question, whether the Sentencing Act 1991 applies to a sentence imposed by this Court for contempt?

At common law, the Court has the power in respect of a criminal contempt to both fine and impose a term of imprisonment and in an appropriate case, to order the giving of security for good behaviour. See Skipworth and the Defendant's Case (1873) LR 9 QB 230.

The Rules of Court provide for punishment for contempt. See Rule 75.11. In addition to prison or fine or both, the Court is empowered to make an order for punishment on terms, including a suspension of punishment. The cases support the power in the Rules. See Villiers v Villiers (1994) 1 WLR 493 at 498(B).

In my reasons for sentence delivered on 10 October 2001 ([2001] VSC 398), I referred to what Winneke P said in Hugo Rich v The Attorney-General for the State of Victoria and opined the view that the provisions of the Sentencing Act dealing with suspended sentences applied. I referred to ss.27-31. I share the view of Winneke P when he states -

"From my own part I cannot see why the fact that the court is exercising summary jurisdiction under Order 75 of the Rules should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence."

This would not mean that all the provisions of the Sentencing Act would apply because many of them are clearly only concerned with offenders under the criminal law. But nevertheless, there are sections within the Act which, in my view, could apply to the sentencing for a contempt. In support of that observation, I refer to the purposes of the Sentencing Act which are set out in s.1 and in particular, paragraphs (a), (b), (c), (d) (in relation to promoting respect for the law) and (l). The Sentencing Act provides for a range of different types of punishment, types which were not applied by the common law in respect to contempt findings and which reflect a modern approach to sentencing. I see no reason why the provisions of the Act concerning suspended sentences should not apply. In my view, they do.

In any event, in my opinion, the Court, in addition to the Rules and the Act, has an inherent power to suspend a sentence of imprisonment for contempt of court. See generally Harris v Harris [2001] EWCA Civ 714; (2001) 3 WLR 765. Further, the observations made by Munby J in that case at p.774, I respectfully adopt. His Lordship, after referring to one of the purposes of committal being to persuade the contemnor from doing something which he was persistently doing in defiance of the court order, said -

"Now these being the purposes of committal it is important that the court should not be unnecessarily fettered in its ability to adapt its processes and its powers so as to maximise its capacity to secure compliance with its orders, that is, its capacity to persuade contemnors, whether by punishment, deterrence or coercion, or a mixture of all three, to behave themselves in future. It is highly desirable that the court should have available to it, within reason, the maximum flexibility in pursuit of that objective."

Section 31(5A) makes it clear that the general rule is, that if a condition of a suspended sentence is breached by the commission of another offence punishable by imprisonment, then the Court must restore the sentence held in suspense and order the defendant to serve it.

In my view, the same approach should be taken in respect to the Rules of Court and the inherent power of the Court to deal with a contemnor who breaches a condition of the suspended sentence. As a general proposition, that should be the general rule. The suspension of a sentence is meant to be a constant reminder to the offender during the period of the suspension to keep out of trouble. He gets into trouble with that knowledge. The effect should be swift and decisive; immediate imprisonment. To approach the task in any other way is to defeat the main purpose of the sentence being suspended.

However, s.31(5A) makes it clear that the Court is left with an overriding discretion in a suitable case not to require the offender to serve the restored sentence. In my view, the Court would have the same power in the exercise of its discretion under the Rules and the inherent jurisdiction of the Court to do likewise.

Mr Burns submitted that I should find exceptional circumstances within the meaning of s.31(5A) and not restore the sentence; alternatively, if it was proposed to restore the sentence, to order that it be served by way of intensive correction in the community pursuant to s.19 of the Act.

Under s.31(5A), the Court is required to restore the sentence and order the offender to serve it "unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made."

In respect of alleged exceptional circumstances, Mr Juric swore in his affidavit, and I accept, that since the sentencing on 10 October 2001, he has been diagnosed with a serious stomach complaint, and has undergone a bout of surgery which located a number of cysts in his stomach. He is booked in to have them removed this month. If he was to serve a sentence, it would be particularly difficult because he may have to serve it in a hospital wing. I have been informed that he is suffering from a heart condition. The second category of the exceptional circumstances is that Mr Juric's wife is gravely ill, she is deteriorating by the day, and she is now relying upon Mr Juric almost totally for assistance. Whilst I was informed on the last occasion that Mrs Juric was gravely ill, the further deterioration and reliance upon Mr Juric are exceptional circumstances which have arisen since 10 October 2001.

Finally, I have had the benefit of a report from a forensic psychiatrist, Dr J. Barry-Walsh, dated 7 January 2001. He formed the opinion that Mr Juric is what is known as a "querulous litigant". He also thought it most likely that Mr Juric has developed a "delusional disorder". He points out the dilemma that one has with regard to consideration of treatment. He also suggests that Mr Juric would benefit from further psychiatric treatment.

Mr Juric poses a real problem to this Court and places it in a dilemma. However, I am, reluctantly, prepared to give him another chance.

I am prepared to find that those circumstances are exceptional and have arisen since the order suspending the sentence was made.

I am prepared to not restore the sentences which are in suspense and they will remain so in accordance with the original order. In accordance with s.31(5B), the reasons for so deciding are that, in my view, there have been exceptional circumstances which have arisen since the suspension of the order was made, namely, the deterioration in the health of Mr Juric to a point where imprisonment at this stage would be extremely aggravating to his health, and, secondly, because of the continued deterioration of his wife's condition to the point where she is nearly totally dependent upon him for assistance.

It follows that I will not restore the sentences imposed on 10 October 2001, and they remain in suspension subject to the undertakings signed by Mr Juric on that occasion.

With respect to the sentences I have imposed in respect to the two charges, the subject of the present application, I am prepared to suspend those periods of imprisonment for a period of 12 months provided that Mr Juric signs an undertaking in the same terms as he did on the last occasion.

It follows that I am prepared to give Mr Juric another chance. The probabilities are indeed high that it will be his last chance.

Mr Juric must understand that the proceeding for contempt heard last year and the present proceeding, are predominantly concerned with the authority of this Court and the authority being maintained. I do understand the feelings of Mr Juric towards the plaintiff bank and their lawyers, and I accept that he is so emotionally involved in his obsession with the plaintiff bank and their lawyers, that at times his judgment is severely clouded and his reasoning processes severely diminished. At the hearing last year, and during the present proceeding, despite apologising to the Court, he has not missed an opportunity to again attack the bank and its solicitors; not only attack them, but in a defamatory and offensive way. Mr Juric's alleged apologies for past misbehaviour are difficult to accept as sincere and places this Court in a dilemma. Mr Juric has in the past been more than willing to embark upon conduct which shows deliberate defiance of orders made by this Court.

But he must understand that his dispute with, and his dislike of, the plaintiff bank and its lawyers and the defiance of Court orders are two discrete and different matters. The contempt proceeding is what the Court is now concerned with.

This proceeding and the previous proceeding for contempt involves the Court and its authority. It is vital to the rule of law in this country that orders made by this Court are complied with, and that members of the community do not take it upon themselves to defy this Court and undermine its authority. Mr Juric constantly fails to realise that these contempts are only marginally concerned with his dispute with the bank and its lawyers and are directly concerned with this Court's authority. This Court cannot sit back and let Mr Juric continually, constantly, defiantly and offensively, defy its authority and orders.

Mr Juric must understand that the probabilities are very high that a repeat breach of Beach J's order will result in the sentences being restored and Mr Juric being obliged to serve them. I have said a number of times, and I repeat, that Mr Juric must listen to his lawyers. Unfortunately, he appears to listen to others, people who are not lawyers but who think they are.

If Mr Juric is prepared to given an undertaking in the form he gave on the last occasion, I am prepared to suspend the orders of imprisonment. On that basis, I propose the following orders -

(1) In respect of the charge of contempt in paragraph 6 of the plaintiff's summons filed 26 November 2001, the defendant, Mr Sime Juric, be convicted and committed to prison for a period of one month.

(2) In respect of the charge of contempt in paragraph 7 of the said summons, the defendant, Mr Sime Juric, be convicted and committed to prison for a period of one month.

(3) That the terms of imprisonment be served cumulatively.

(4) Upon Mr Sime Juric giving the following undertakings to the Court and signing the form of undertaking which is to be annexed to this Order -

That during the period of 12 months from this date or until the order made by the Honourable Mr Justice Beach on 26 February 2001 ceases to operate, whichever first occurs:

(i) he will comply with the said order of Beach J made 26 February 2001;

(ii) he will not demonstrate or protest within a distance of 100 metres of the nearest boundary of any premises occupied by the plaintiff, the National Australia Bank Ltd, or its solicitors, Russell Kennedy's offices located at 469 LaTrobe Street, Melbourne -

the orders of imprisonment be suspended for a period of 12 months.

(5) That a warrant for committal to prison not issue until further order of the Court.

(6) That the relief sought in paragraph 9 of the said summons be dismissed.

I will hear the pa rties on the question of costs.

The history of the litigation involving the bank and Mr Juric, the circumstances of the contempts of court, the findings of the Court and the sentences are to be found in the reasons for judgment delivered on 9 October 2001 ([2001] VSC 375) and 10 October 2001 ([2001] VSC 398).

At a glance

Court

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Before

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Judgment (42 paragraphs)

Parties

Cases Cited (2)