Prothonotary of the Supreme Court of NSW v Katelaris

Supreme Court of NSW|2008-05-05|Before: Hoeben J

CITATION : Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389

DECISION : Declarations made in accordance with paragraphs 1 and 2 of the summons. Defendant convicted of two counts of contempt against him as particularised in the summons.

CATCHWORDS : CONTEMPT OF COURT - jurors - insulting remarks made after discharge but in presence of jurors - insulting remarks made to media outside court - interference with administration of justice - charges made out.

LEGISLATION CITED : District Court Act 1973 Drugs Misuse and Trafficking Act 1985

Attorney General v Butterworth (1963) 1 QB 696 at 723 Attorney General of NSW v Dean (1990) 20 NSWLR 650 Bell v Stewart (1920) 28 CLR 413 at 428-429 Ex parte Bellanto Re: Pryor (1963) SR NSW 190 at 203 CASES CITED : Ex parte Tuckerman Re Nash (1970) 3 NSWR 23 R v Dunbabin; Ex parte Williams (1935) HCA 34, (1935) 53 CLR 434 at 442-443 R v Rustom [2005] NSWSC 61 Re: Johnson (1887) 20 QBD 68 Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525

PARTIES : Prothonotary of the Supreme Court of New South Wales - Plaintiff Andrew John Katelaris - Defendant

COUNSEL : Mr L Babb SC - Plaintiff Defendant in person

SOLICITORS : IV Knight, Crown Solicitor - Plaintiff Defendant in person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14191/2007 - PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v Andrew John KATELARIS

JUDGMENT 1 HIS HONOUR: Nature of proceedings This matter comes before the court by summons filed by the Prothonotary on 16 August 2007. The summons seeks declarations in the following terms: "1. A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury " Regrettably, the next generation will suffer for your ignorance", which statement had a tendency to interfere with the administration of justice. 2. A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely " Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales" which statement had a tendency to interfere with the administration of justice." 2 The summons seeks orders that the defendant be punished or otherwise dealt with for such contempt of court and that the defendant pay the plaintiff's costs of the proceedings. The Statement of Charge is in the following terms: "1. It is alleged that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury " Regrettably, the next generation will suffer for your ignorance", which statement had a tendency to interfere with the administration of justice. 2. It is alleged that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely " Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales" which statement had a tendency to interfere with the administration of justice." 3 The particulars of contempt alleged in the summons are as follows: "1. On 2 March 2006, at the District Court at Newcastle, the Crown presented an indictment against the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, between 3 December 2004 and 27 January 2005, at Salisbury in the State of New South Wales (ss 23(2)(a), 33(3)(b) Drugs Misuse and Trafficking Act 1985) (the charge). 2. The defendant pleaded not guilty to the charge, a jury was empanelled and the trial proceeded on 2 March 2006, 3 March 2006, 6 March 2006 and 8 March 2006. 3. The defendant represented himself throughout the course of the trial. 4. On 8 March 2006, the jury returned a verdict of guilty in relation to the charge. 5. After the trial judge had discharged the jury, and whilst the jury were in the process of leaving the court, the defendant said to the jury, " Regrettably, the next generation will suffer for your ignorance" (the first statement). 6. The first statement visibly upset some of the jurors. 7. After leaving the court, the defendant participated in an interview with the local television station, NBN Channel 3 (the interview). 8. In the course of the interview, the defendant made the following statement (the second statement): " Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales." 9. At the time of the interview it was likely that the interview would be broadcast on the NBN television news that evening. 10. The conduct of the defendant in making the first statement and the second statement had a tendency as a matter of practical reality to interfere with the administration of justice in that: (i) the first statement, made in the presence of the jurors, was abusive and had a tendency to deter those jurors in relation to their participation in future trials; (ii) the first statement was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials; (iii) the second statement was made to the media, and was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials; (iv) the second statement had a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in the proceedings." 4 The trial judge, Coolahan DCJ, referred this matter to the Supreme Court under s 203 of the District Court Act 1973 which provides:

"(1) Without prejudice to the powers of the District Court under s 199, where it is alleged or appears to the District Court in its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. (2) On any matter being referred to the Supreme Court under subs (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate." 5 The matter now comes before me for hearing. Although the parties are referred to as "the plaintiff" and "the defendant", the proceedings are criminal in nature (Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525). The defendant represented himself.

Factual background and evidence 6 The plaintiff relied upon the affidavit of Karen Thompson, sworn 16 October 2007. Ms Thompson was the sound reporter/monitor in court at the time of the first statement. It was her evidence that the members of the jury had been discharged by his Honour and were in the process of leaving the court but were still present in court when the first statement was made. Ms Thompson made a duplicate cassette recording of the master tape which set out what his Honour said and what the defendant said. That cassette recording became exhibit A in the proceedings. 7 The cassette recording, exhibit A, confirmed that the defendant made the first statement. It should be noted that the defendant did not shout or yell the words, nor were the words spoken in a threatening manner. The statement was, however, audible and clear and as loud as the comments by his Honour in discharging the jury. 8 The plaintiff relied upon an affidavit of Denes Matyas Blazer, affirmed on 17 October 2007. Mr Blazer was a paralegal officer employed by the Crown Solicitor. His evidence was that he compared the transcript of the proceedings at trial with the cassette recording, exhibit A, and confirmed the accuracy of the transcript. The transcript showed that the defendant made to the first statement. 9 The plaintiff relied upon an affidavit of Jessica Phillis, sworn 11 October 2007. Ms Phillis was a journalist employed at NBN Television Newcastle. She was present in court on 8 March 2006 and said that the defendant made the first statement. It was her evidence that the members of the jury were still present in the courtroom at the time that the statement was made and that they were in the process of being ushered out by an officer of the Sheriff's Department. Under cross-examination by the defendant Ms Phillis agreed that when she used the word "yelled" in her affidavit she may have been mistaken. 10 She said that she followed the defendant out of court. Apart from her representing NBN, she estimated that there were three newspaper journalists and at least two radio journalists also present. The journalists including her gathered around the defendant outside the building and one of them said, "Do you want to make a statement?" She recalled that the defendant then said words to the following effect: "A bunch of sheep have ruined a new industry". A camera crew, which was accompanying her, recorded the defendant making the second statement. 11 She then returned to the offices of NBN Television, prepared a report about the jury's verdict to be shown on the evening edition of NBN News. That report went to air on the evening news programme on 8 March 2006. Ms Phillis identified a DVD, which became exhibit B in the proceedings, as an accurate visual recording of the news report. 12 The DVD, exhibit B, was shown several times in court. The report showed the defendant making the second statement as set out in the particulars in the summons. The news report also repeated the contents of the first statement and the fact that it had been made in court by the defendant. 13 The plaintiff tendered two pages of the transcript of the trial (pp 234 and 235) which contained submissions made by the defendant to the jury. In the course of his submissions to the jury the defendant had said: "No matter what comes from the bench you are the judges in this case, you have total and unchallenged authority to form any verdict you wish. Now this country has a lot of sheep and I hope twelve of them haven't wandered into this pen that I see before me. I hope we have independent, clear thinking citizens and not pliant school children that will take the direction from the headmaster." 14 The last of the evidence relied upon by the plaintiff were the remarks on sentence of his Honour on 28 September 2006. The plaintiff referred the court to the following: "Before making the formal order there are some final remarks that I wish to make. During the course of these proceedings, including all pre-trial mentions and hearings, the trial itself and the sentence proceedings, I have endeavoured to extend to the offender courtesy and respect. Regrettably, this has not always been reciprocated. I make no specific complaint about that. However, after the verdict and whilst the jury were in the process of leaving court, the offender said to the jury, "Regrettably, the next generation will suffer for your ignorance". This statement visibly upset some of the jurors who had been subjected to a good deal of emotional pressure during the course of the trial. A report of this outburst was published in the Newcastle Herald on 9 March 2006. Further, in an interview conducted with NBN Channel 3, Newcastle's local television station, outside the court following the verdict, which interview was aired on the news that night, the offender said inter alia, "Australia came to prominence with the sheep industry. Unfortunately, a group of 12 sheep just lost a major new industry for New South Wales". I make no criticism of the Newcastle Herald or NBN Channel 3, but in my view those comments were clearly unwarranted and deserve a censure. Jurors in trials are subject to enough pressure, without this sort of criticism being levelled at them. With this in mind, I refer these remarks to the Registrar of the Court of Appeal for that Court's consideration as to the institution of contempt proceedings." (ROS 9) 15 None of that material was objected to by the defendant, except for the use of the word "yell" by Ms Phillis in her affidavit. With the consent of the plaintiff that word was deleted from her affidavit. 16 In his case the defendant tendered his curriculum vitae. This showed that the defendant had obtained a medical degree from the University of Sydney and that between 1993 and 1998 he held the positions of Registrar, NSW Institute of Forensic Medicine; Registrar (Histopathology) Liverpool Hospital and Registrar (Histopathology) Westmead Children's Hospital. He had been Staff Medical Officer at the North Shore Private Hospital between 1999 and 2005. 17 The defendant also relied upon extracts from newspapers. Exhibit 2 was an extract from The Daily Telegraph dated 28 September 2006. It referred to the sentence proceedings before Coolahan DCJ. Exhibit 3 was an extract from The Land of Thursday 10 April 2008 which referred to the likelihood of the NSW Government introducing a new licensing system for the growing of industrial hemp. Exhibit 4 was an extract from the Herald News dated Saturday, 29 January 2005 which reported details of the defendant's arrest for the offence of which he was convicted in the District Court at Newcastle and which led to the first and second statements being made. 18 The defendant in oral submissions agreed that he had made the first statement and the second statement. He also agreed that when he made the first statement some members of the jury appeared to be upset by it. 19 I am satisfied beyond reasonable doubt and I find that the first statement was made by the defendant and that it was made in court after discharge of the jury, but while the members of the jury were present in court and were being ushered from court by a Sheriff's Officer. I am satisfied beyond reasonable doubt that some of the members of the jury heard the first statement and were upset by it. 20 I am satisfied beyond reasonable doubt that the defendant made the second statement to members of the media, including Ms Phillis, outside the court. I am satisfied beyond reasonable doubt that exhibit B (the DVD) accurately records the defendant making the second statement outside court.

Submissions and consideration 21 The defendant submitted that these proceedings were vexatious and frivolous. They were vexatious he said, because they were initiated by the trial judge, who was angry with him and bore him ill will because of submissions which he had made at the trial. 22 Not only is that submission misconceived there was not a shred of evidence to substantiate it. The trial judge brought the matter to the attention of the Supreme Court as he was obliged to do. The decision to proceed with the matter was taken after State law officers had considered the facts and the law. Even on the limited evidence available to me, it is clear that his Honour conducted himself towards the defendant in a courteous and polite manner. 23 The defendant submitted that the first statement could not interfere with the administration of justice since at most only twelve persons were affected by what he said and because there was a vast pool of potential jurors available in NSW. He submitted that most people were only called up for jury service once or twice in their lives so that even if these twelve jurors were discouraged by his words from performing jury service in the future, this would have no effect on the administration of justice in NSW. 24 This submission misunderstands the gravamen of the offence of criminal contempt. It lies not in protecting the personal feelings of the members of the jury, who may be the object of criticism or abuse, but in protecting the public from the mischief that will occur if the authority of the courts and the jury system is undermined or impaired. 25 This point is clearly set out in Re: Johnson (1887) 20 QBD 68 where Bowen LJ said: "What is the principle which we have here to apply? It seems to me to be this. The law has armed the High Court of Justice with the power and imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals that insults to judges are not allowed. It is on the same ground that insults to witnesses or to jurymen are not allowed. The principle is that those who have duties to discharge in a court of justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return there from, in order that such persons may safely have resort to courts of justice."

This statement of principle was cited with approval in Ex parte Bellanto Re: Pryor (1963) SR NSW 190 at 203. Observations to similar effect can be seen in Bell v Stewart (1920) 28 CLR 413 at 428-429, R v Dunbabin; Ex parte Williams (1935) HCA 34, (1935) 53 CLR 434 at 442-443 and Ex parte Tuckerman Re Nash (1970) 3 NSWR 23. 26 The offence is directed at conduct which has the effect of deterring jurors from doing their duty. The concern is with the harm done to the present and future administration of justice, a system in which members of juries play an integral role. 27 The defendant submitted that despite his observation that several of the jurors appeared to be upset following the first statement, the real reason why they were upset was because they had allowed themselves to be "railroaded" by the trial judge. He submitted that because of the directions given by the trial judge to the jury, they had been unable to follow their own consciences and this was why some of them were upset. 28 That submission is based on unsubstantiated speculation. The undisputed fact is that several members of the jury were observed to be upset following the first statement (which was acknowledged by the defendant). This gives rise to the clear inference that it was what the defendant said in the first statement which upset them. I have already made a finding to that effect. 29 The defendant submitted that he was never violent or threatening in what he said or how he said it. He submitted that at no time did he intend to interfere with the administration of justice. In the case of the first statement, he said that he had actually spoken the words before he realised what he had said. What he wished to convey by his comments was how irrational and unfair the decision to convict him had been. 30 It is trite law that proof of an intention to interfere in the administration of justice is not an ingredient of the charge. This question was comprehensively analysed by the Court of Appeal in Attorney General of NSW v Dean (1990) 20 NSWLR 650. At 655E the court said: "The opponent repeatedly laid stress upon the absence of any intention to interfere in the administration of justice. However, it is clear that although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge."

At 656A the Court said: "The matter of overriding importance is to prevent interference with the proper course of trials; that interference is just as real and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear. It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused. The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the court's decision as to penalty… The opponent's ignorance of the law of contempt cannot excuse him from its obligation. We have concluded that when the opponent made the three statements complained of he did so with intention that they should be included in the material, upon the basis of which the media representatives would later make a decision to compose their program. In the circumstances in which the statements were made before cameras, microphones and other recording equipment and thirty journalists, it is completely unrealistic to suggest that the opponent should be treated as if he were having a private conversation. The whole point of the media interview, was the communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment." 31 In this case it is clear that the defendant intended to use the words which he said, although he did not have the specific intent of interfering with the administration of justice. I do not find, however, that the defendant's statements, both in court and to the journalists, were premeditated or planned. 32 Because these are criminal proceedings, the standard of proof is beyond reasonable doubt. The test for contempt is whether the conduct in question had a tendency to interfere with the administration of justice. For the offence to be made out, I have to be satisfied beyond reasonable doubt that either or both the first statement and the second statement had as a matter of practical reality an objective tendency to interfere with the administration of justice. The test is an objective one, so that the person to whom the conduct or words were directed does not necessarily have to be intimidated or deterred. All that is necessary is that the requisite tendency is present. 33 The cases recognise that it is a contempt of court to threaten or take reprisals against judges, witnesses and legal practitioners involved in the judicial process in relation to particular legal proceedings. As the extract from Re Johnson makes clear, that principle applies equally to jurors. Action taken by way of reprisal may constitute a contempt whether or not proceedings remain pending because such conduct may interfere with the administration of justice as a continuing process by discouraging or influencing participation of such persons in future legal proceedings. 34 As Donovan LJ said in Attorney General v Butterworth (1963) 1 QB 696 at 723: "The question to be decided here, as in all cases of alleged contempt of court, is whether the action complained of is calculated to interfere with the proper administration of justice. There is more than one way of so interfering. The authority of the court may be lowered by scurrilous abuse. Its effectiveness to do justice may be diminished or destroyed in a pending case by frightening intended witnesses from the witness box. After giving evidence a witness may be punished for having done so, thereby deterring potential witnesses in future cases from risking a like vengeance. I see no difference between any of these three methods as makes the first two contempt of court, and the third not. Each is calculated to do the same thing, namely, to interfere with the proper administration of the law in courts of justice."

Observations of Lord Denning MR at 719 and of Pearson LJ at 728 were to similar effect. 35 A clear application of this principle was in R v Rustom [2005] NSWSC 61 where Dunford J sentenced a contemnor in relation to an outburst by him in a courtroom. The outburst was directed at a juror following the jury's delivery of verdicts of guilty against the contemnor's brother and another accused on a charge of murder. His Honour regarded the outburst as a serious matter "because of the need to protect the anonymity, safety and freedom from threat of jurors, and to preserve the integrity of jury trials". 36 I am satisfied beyond reasonable doubt that a contempt of court has been established in relation to both the first statement and the second statement. 37 In relation to the first statement, as Dunford J noted in Rustom and as the trial judge told the jury in this case when they were discharged, the jury plays a critical role in the administration of justice in this State. It performs an onerous and difficult task carrying with it great responsibility. It is therefore important to ensure that the integrity of persons who are empanelled to sit on a jury and persons who may be so empanelled in the future is not called into question or subjected to abuse. Conduct which has the tendency to deter jurors from serving again and to deter potential jurors from serving at all has as a matter of practical reality an objective tendency to interfere with the administration of justice. 38 The first statement by the defendant was clearly addressed to the jury. Viewed objectively, it constituted a form of abuse directed at the jury by way of reprisal for their verdict. It had the necessary tendency to influence and deter those jurors and jurors generally from participating in future trials and as such it amounted to a contempt of court. 39 In respect of the second statement this was made to a group of journalists, accompanied by television cameramen, with the clear intention that the remarks be promulgated as widely as possible. In that regard the passages from Attorney General for NSW v Dean previously quoted are apposite - "the whole point of the media interview was a communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment." 40 In the second statement the defendant's characterisation of the jurors as sheep constituted a clear and intentional attack upon their independence, integrity and impartiality. The second statement can also be correctly characterised as a form of abuse and directed at the jury by way of reprisal for their reaching a guilty verdict. The clear message for potential jurors who might have seen the report on the television news was that serving on a jury was a thankless task for which abuse and public humiliation were likely consequences. The second statement had as a matter of practical reality a real tendency to undermine public confidence in the administration of justice by suggesting that the jurors had not properly discharged their duties in the proceedings. 41 It follows that each of the first and second statements constituted a separate and clear contempt of court. I make declarations in accordance with paragraphs 1 and 2 of the summons. The defendant is convicted of the two counts of contempt which have been brought against him and as are particularised in the summons. I will in due course hear submissions on sentence. **********

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