Rich v Attorney-General for the State of Victoria [1999] VSCA 14

18. The originating motion, dated 13 August 1996, so far as relevant, was in the following form:

"The applicant [that is, the Attorney-General] seeks the following relief or remedy. 1. An order that the respondent [that is Rich] be adjudged guilty of contempt of the County Court.

Particulars of Contempt

(a) During the conduct of the Respondent's criminal trial at the County Court before His Honour Judge Byrne on 26 June 1995, the Respondent committed a contempt of court in that he addressed the learned trial judge in a threatening, abusive and offensive manner.

(b) The conduct alleged in sub-paragraph (a) constitutes a contempt of the County Court in that it was calculated to interfere with the administration of justice.

(c) Further, during the said trial on 9 August 1995, the Respondent committed a contempt of court in that he threatened the prosecutor, Ms. Carolyn Douglas.

(d) The conduct alleged in sub-paragraph (c) constitutes a contempt of the County Court in that it was calculated to intimidate Ms. Douglas and others, to undermine the authority of the court and to reduce the capacity of the court to administer justice in a proper manner.

2. An order that the Respondent be punished by imprisonment or fine or both.

29. The summons which was served with the originating motion was supported by a number of affidavits sworn, inter alia, by persons who were present at the appellant's trial on 26 June 1995 and/or 9 August 1995 when the impugned conduct was alleged to have occurred. Some of the deponents exhibited to their respective affidavits, and verified, transcript and audio/visual records of the appellant's conduct on each of the days upon which it was alleged that he had committed a contempt of court. It was, therefore, not in contest, either in the proceedings before Byrne, J. or in this Court, that on 26 June 1995 and on 9 August 1995, the appellant had, during the course of his trial, uttered the following words to the judge (on 26 June) and to the prosecutor (on 9 August).

Judge: "... But I propose to go ahead and empanel a jury. ... Place the prisoner in the dock." Rich: "Do you understand I don't want to be here, sir? I don't want to be rude to you; I'd like to leave, please?" ... Judge: "You must be present for the arraignment and empanelling of the jury." Rich: "I must take no part in these proceedings, sir; I don't want to be rude to you, I don't want to be here." Judge: "You may be present or absent after that, as you wish." Rich: "No, well I'm not taking part of (sic) the process, sir; I'd like to leave, please." Judge: "Alright, you can leave after the jury is empanelled." Rich: "I don't want to fight with anybody; I don't want to do anything; I'm not taking part in any of this, okay?" Judge: "Yes, all right." Rich: "It's a sham, you ought to be ashamed of yourself, sir, I am not taking any part of this process, because what you are trying to do sir, you are either trying to send me over the cliff and I'm about two seconds away from it, or explode, and I won't do either, do you understand me?" Judge: "Yes, all right." Rich: "I'm not in the state of mind, I want to see a doctor and I want to get some treatment. I cannot take part of this process." Judge: "All right." Rich: "Okay?" Judge: "Yes." Rich: "Don't just nod to me, because you just shafted me from day one. Do you understand I'm sick? It took me all my resolve last Friday. This cunning wench here would be happy with a bloody G.P. Either way she gets a victory. Do you understand that; I'm sick? I don't want to be rude to you, but I don't want to take part in this whole crap." Judge: "All you are saying is being video-taped, so there will be a record of it." Rich: "Well that's it; just fob me off again, that is what you are really saying. Whether its video-taped I don't give a rat's arse either, sir. I don't want to take part in these illegal proceedings. That's what you are doing." Judge: "All right, you have made that clear." Rich: "Well, can I go?" Judge: "No, you must stay for the empanelment. Bring in the jury." Rich: "What are you doing?" Judge: "You will be arraigned before the jury panel and a jury will be ..." Rich: "No, I won't, I'm sorry, I won't be arraigned before the jury, okay? I'm telling you I won't be arraigned before the jury, I'm telling you now, I want to leave now." Judge: "You are not permitted to leave now." Rich: "I am permitted to leave, I'm telling you now, I want to leave now, you are not going to fucking do this, rat, I'm telling you, all right? And I will fucking ... you ain't fucking going to do it, all right? You understand that? You are driving me over the fucking hill, you idiot. You understand that? You want to ... like this, wake up to yourself, you silly old dog. There will be no fucking jury, I want to leave. I don't want to fight nobody, but if you force me, that's what will happen. Now get out of here, before I lose it completely, get me out of here. ...There'll be no fucking arraignment, rat; I'm telling you. Now, please let me go before I lose it completely, I plead with you, please let me go. I'll get on my hands and knees, please let me leave here, before I lose it completely; I plead with you, let me out of here. I don't want to fight anybody; I don't want to get into more trouble, I can't handle the pressure, do you understand that? Can't you see that? Are you blind as well as deaf? ... Please let me go sir, I beg of you, let me go, I'm not in a fit state of mind today. It might be better tomorrow; today I'm not. I don't want to fight any of these guys, I have no beef with them, but I tell you now, you are forcing me into it. ..." Judge: "Yes, very well then. You recognize that you can't by any means at all, postpone these proceedings, they will come on ..." Rich: "I want a fair go, sir. I want a fair go. Three months out of here in a decent hospital might fix it. I don't know. All I know I'm looking for answers that this trial going in the state where I am now is not going to work, and you just want to put me through the appeal process so your crony mates across the road, you just shaft me again. It won't happen. You done it the last time, you won't do it again. Eight years in custody without a conviction; how much more credit do I need? Now let me go please; there'll be no jury here today. Now please let me go and I want to go. I've got no arguments with these gentlemen. They've been kind to me and I don't want to fight them. You'll force me into it if you bring the jury in, I'm telling you. So you take that responsibility because I'll be marching straight out." Judge: You'll not be the first one, or the last, I should think ..." Rich: "Don't threaten me, I'm telling you, rat ..." Judge: "I'm not threatening you ..." Rich: "I'm telling you, rat, don't fucking threaten me, dog, I'm telling you, you'll lose." Judge: "If you do 12 months for contempt of court ..." Rich: "I've done four years already. You've got eight more. How many more do you want? Who gives a shit about contempt? How many more do you want? And that's your answer, isn't it? Don't give the accused any fairness, just give him contempt. Go ahead and do it. I challenge you. Contempt. And then you'll be out of here because you will be biased. Go on. Do it. I challenge you. Do it. You will be gone. Don't you threaten me. Go on. You made the utterance. Let's go. I'll go and do 12 months out there easily and it'll be 12 months further to exacerbate the delay and make me even worse than what I am. So you go and do it. Don't just threaten me, cunt. Go on, I'll tell you now. You won't get it today, cunt, I'm telling you. You can play your intellectual games here. It won't work. Now I want to leave here. I'd like to leave civilly. I don't want to fight anybody. If it gets to that point it will, and you will drag me out of here. And I will probably face assault, but it'll be your responsibility because you had the opportunity to stop it. I am not fit to stand trial today or face these proceedings and if you want to push me on, whether it happens this week, or next week or next month, it will happen, right. You understand that? I want a break. I want a break from incarceration, from being shafted, from being dragged across from pillar to post. I want to go to a normal hospital. And ...me medication over a week if some fucking idiot in there fucks up. Whole bloody week. I beg and plead for it. I don't get it. Remove the prisoner. Lock him up again. That's what I get every fucking day, you cunt. May I go now, because this is not going to get anywhere? You'll be just burning this fucking jury, and I'm telling you now I'm not in a fit state of mind. If you can't see that, you'd better fuckin' retire. Now may I go? I'm only going to ask it once more. Please." Judge: "Yes, you can go on this occasion." Rich: "Thank you, very much, sir. I've had enough. I've had enough of these sham proceedings." Judge [to Rich's counsel]: "Mr. O'Doherty, you want to say something?" Mr. O'Doherty: "Might I suggest that the court adjourn for the day. I will be seeking to make an application for bail tomorrow ..." (b) Words uttered to prosecutor on 9 August 1995 Mr. Gregory Pern, the tipstaff to his Honour Judge Byrne at the time of the appellant's trial in 1995 on the armed robbery charges, deposed that he was present in Court 9 of the County Court on 9 August 1995 when the appellant was brought into court, after lunch, prior to the resumption of the trial. When the appellant was passing the Bar table, he paused and said to the prosecutor: "You're fucking gone, bitch, you're fucking gone".

Pern deposed that the appellant continued to abuse and threaten the prosecutor as he was led to the dock. He then activated the video-recording equipment. The transcript records the appellant saying to the prosecutor:

"One chance, one fucking chance. Watch your back. Every time you turn that car on of yours where you're living at the moment, I'm telling you, okay. I don't care how long it takes, 25 years bitch, I'll have a go at you. One go, that's all I want and you think by locking me up for 25 years, I don't have legs and arms out there. I've a bank account overseas and even without the money, we'll be able to get you any time, slut, I'm telling you. All I ever wanted is a fair go. You've pulled every dirty, filthy trick under (sic) the book." Unidentified speaker: "That'll do." Rich: "You shut your mouth Mr. Andrews. This is not your fight, okay? I have no fight with you. Can I have a glass of water, please? You know you're only worth 30 grand, don't you, that's all you're worth. You think your little gown and wigs will protect you. In the end it won't ... like me. I don't give a fuck, that won't protect you from ... it doesn't matter, the damage is done, I'm not going to worry about it. Don't worry about it. The damage is done and I don't give a rat's arse. I'll go away for 20 years, but she'd better make it life. I go to bed thinking about her every night. A thousand body guards won't help her. If he's any guts he'll prefer charges now if he's got any guts at all." [It should be noted that, in his affidavit sworn on 18 April 1996, Mr. O'Connor swore that the words "don't you", where they appear in line 3 of this quotation, when checked against the recording, should read "bitch".] Not surprisingly, these comments disconcerted the prosecutor. She drew the trial judge's attention to them shortly after he entered the court. The judge then adjourned the proceedings for the day and the appellant was returned to the cells. At about 2.15 p.m. on 9 August 1995 he was in the company of a security officer, one Michael Lambe. Lambe swore an affidavit in which he deposed that he had had a conversation with the appellant during which the appellant said to him that: "He had just finished abusing the Crown prosecutor in his trial a few moments before." Lambe also deposed that the appellant said that the next time he was asked to return to court: "He fully intended to abuse the current trial judge for his incompetencies in the hope that such actions will necessitate the judge having to disqualify himself from the trial, thereby providing him with the opportunity of a new and fairer trial."

Christa Bradley, the acting Court Co-ordinator at the County Court, also swore an affidavit in which she deposed that, at about 2.10 p.m. on 9 August 1995, she was in the cell area of the Court when the appellant was brought down. She deposed that she heard a person, unknown to her, say to the appellant:

She further deposed that, in response, the appellant laughed and said:

"Well, if she charges me, she can't prosecute me."

"On Monday I'm going to threaten the judge, then he can't prosecute me, neither. Then the case might be heard by someone else and I might get a fair trial. I'll do whatever it takes to get a fair trial."

42. The foregoing represents the substance of the material which the respondent Attorney-General put before the Supreme Court in support of the application that the appellant should be committed for contempt of court. It is clear from that material that what was being alleged were two discrete episodes of conduct, each amounting to a contempt. Each episode was alleged to have occurred during the course of a lengthy trial in which the appellant had initially been presented upon eight counts of armed robbery and four counts of car theft said to have been committed between April and December 1991. The trial proceedings were conducted before his Honour Judge Byrne in the County Court. The prosecution was led by Ms. Douglas (now Judge Douglas) and the appellant was represented by two counsel, experienced in the criminal law. The proceedings were lengthy and apparently arduous to all concerned, not least because of the occasional intemperate behaviour of the appellant which resulted in his counsel being dismissed and recalled at various times during the trial. A brief summary of the course of the proceedings was given to the judge who heard the contempt application. Such a summary is to be found in the judgment of the Court of Appeal in R. v. Rich (No.1), (Court of Appeal, unreported, 17 December 1997). The armed robbery trial had proceeded for nearly four months before a jury was empanelled on 27 June 1995 - that is the day following the first of the episodes alleged to constitute a contempt of court. Those four months had been consumed by the making and resolution of a variety of applications. Such applications involved, inter alia, challenges to the composition and complexity of the presentment; and to the admissibility of certain evidence; requests had been made to cross-examine witnesses who had not been called on the committal proceedings; there were also numerous applications for stays and/or adjournments of the trial. The appellant had been in custody since 2 December 1991 and, in the intervening period, two of his co-accused had been dealt with by the trial judge. This, in turn, had led to applications made by the appellant and/or his counsel for the trial judge to disqualify himself from continuing to preside at the appellant's trial. When the trial judge refused to do so, an unsuccessful application was made to the Supreme Court seeking an order to prohibit the trial judge from further presiding. When that had failed more applications were made to sever the presentment and to stay or adjourn the further hearing of the trial. In support of these latter applications it was contended that the mental health of the appellant had deteriorated to the point where he was no longer able to cope with the rigors of the trial, nor to co-ordinate his thoughts in a way in which he could give adequate instructions to his counsel.

45. From time to time the judge had temporarily adjourned the trial to accommodate the appellant. In early May he refused an application to grant separate trials in respect of each of the twelve counts on the presentment but acceded to an application to sever counts 1, 2, 3 and 6 (three counts of armed robbery and one of car theft). The trial thus proceeded upon a presentment containing eight counts, five of armed robbery and three of car theft. Because of the appellant's erratic behaviour, the prosecutor requested that a jury be empanelled to determine the issue of the appellant's fitness to plead. On the same day, 11 May 1995, the judge heard evidence from a psychiatrist (Dr. Lewis) and a forensic psychologist (Mr. Bernard Healey) each of whom had examined the appellant on the instructions of his solicitor; and from Mr. Walton, a psychologist who was called by the prosecution. The trial judge had then adjourned the trial to 19 June upon which date appellant's counsel submitted that the appellant was not in a fit state to stand his trial. Counsel again called evidence from Dr. Lewis and Mr. Healey, and also from another psychiatrist Dr. Drysdale. His Honour ruled that there was a triable issue of fitness to stand trial. On the following day, appellant's counsel submitted that there was no triable issue as to his client's fitness but submitted that the presentment should be further severed to enable the appellant to cope with the exigencies of the trial. If that course was not to be permitted, he submitted that there should be a permanent stay. Both these applications were refused and, on 21 June, his Honour empanelled a jury to try the issue of whether the appellant was fit to plead. The Crown called Drs. Lewis and Drysdale, Mr. Healey and the police informant, Senior Sergeant Kent. The appellant himself gave evidence. On 23 June the jury returned a verdict of "sane" within the meaning of s.393 of the Crimes Act, as it stood on that date. The trial was then adjourned to the following Monday, 26 June. On that day - the day of the first alleged contempt - appellant's counsel again sought a permanent stay of the trial on the ground that it would be unfair to try the appellant in his current state of health. That application was refused and the judge called for the jury panel.

48. It was against this background that the events constituting the first alleged contempt occurred.

51. On 27 June 1995 a jury was empanelled following a further application by appellant's counsel for an adjournment. At 2 p.m. on that day the applicant elected to be present. On 28 June the Crown prosecutor opened the case for the prosecution, following which, with the leave of the judge, counsel for the appellant addressed opening remarks on behalf of his client. On 29 June, events occurred which led the trial judge to discharge the jury without verdict and the trial was adjourned until 3 July when a further jury was empanelled and the appellant re-arraigned. The trial continued until 17 July when counsel for the appellant applied for the discharge of the jury. This application was refused. On 4 August 1995, counsel for the appellant requested a further adjournment until 7 August to seek instructions to support an application to exclude certain evidence. On 7 August, a further application was made by counsel for the discharge of the jury based on the submission that inadmissible and prejudicial evidence had been led by the Crown. That application was refused. On 8 August 1995, counsel made a further application that evidence of certain articles which had been found in a blue "locker" in the appellant's possession be excluded. During the course of the application the appellant was removed from the court. On 9 August 1995 the judge ruled that the evidence was admissible following which the appellant announced that his counsel were "sacked" and that the trial would not proceed. At that stage the applicant was removed from the court. It was then that the prosecutor informed the judge of the threats which had earlier been directed to her by the appellant.

54. These events formed the background against which the events constituting the second alleged contempt of court occurred.

57. It remains to be noted that the appellant's trial continued until 27 October 1995 when the jury acquitted the appellant on the first two counts of armed robbery and convicted him on the remaining six counts. In the period of the trial between 9 August 1995 and its conclusion further applications for discharge of the jury, and for adjournments, were made, many of which were based on the state of the appellant's mental health. On 14 August 1995 appellant's counsel informed the court that the appellant could not attend because he "could not cope". On 15 August the judge adjourned proceedings to enable the appellant to be examined by Dr. Drysdale. Drysdale then gave evidence to the court. On 18 August the issue of the appellant's fitness to be tried was again raised and on that day further evidence was called from Dr. Drysdale. His Honour ruled that the trial should continue. Thereafter, from time to time, appellant's counsel were dismissed and re-engaged. On 8 September the trial judge dismissed an application for the jury's discharge on the grounds of the applicant's ill health following which counsel withdrew from the trial. On 18 September counsel, who had been re-engaged, called evidence as to the appellant's medical condition. The trial judge ruled that an issue had arisen as to his fitness to be tried. On 19 September a jury was sworn to try the issue and Drysdale and Healey were again called to give evidence. On 20 September the jury returned a verdict of sound mind. On 21 September counsel announced that the appellant would give sworn evidence in his defence. The trial was adjourned to 25 September due to the illness of a juror and, on that day, counsel requested a further adjournment to the following day to "finalize a number of matters" with the appellant. On 26 September counsel opened the case for the appellant and he was then called to give evidence. Psychiatric evidence was also called on his behalf from Dr. Drysdale.

60. The contempt proceedings, which are the subject of this appeal, were conducted before Mr. Justice Byrne in July and August 1998 against the background of the events which I have recited. I have recited them in some detail because they became relevant to the issues which were raised before his Honour in those proceedings and also to the issues raised by the appellant in this appeal. Indeed the appellant put before Mr. Justice Byrne an affidavit referring at some length to his medical condition during the trial and to the evidence given by Lewis, Drysdale and Healey. In his affidavit, which he affirmed on 19 July 1998, the appellant traced at some length events which had occurred at the trial on 31 March 1995; 3, 5, 8, 11, 12 and 19 May 1995; and 20, 21, 22, 23 and 26 June 1995. In particular he referred to passages of evidence which had been given by Drs. Lewis and Drysdale and by Mr. Healey on these days. The appellant exhibited to his affidavit many pages of the transcript of evidence given by these witnesses, setting out their opinions as to his mental state at the relevant time. The appellant then referred to the trial judge's ruling on 26 June 1995 refusing the application for a permanent stay and directing that the jury should be empanelled.

63. At paragraph 15.6 of his affidavit the appellant deposed in relation to the events of 26 June 1995:

"The trial judge required my presence, then followed the incident which is presently before this Court. I sincerely regret the occurrance (sic) of this incident."

The appellant then referred in his affidavit, at some length, to the events which occurred on 4, 8 and 9 August 1995. He annexed to his affidavit various passages from the transcript of proceedings taken during those days. In regard to the remarks which he had made to the prosecutor on 9 August, the appellant deposed in paragraph 19.3 of his affidavit:

"Discussion on legal matters continued until the luncheon adjournment. Immediately after lunch on 9th of August 1995, and before the Trial Judge and the jury had returned to Court, I made a statement to the Prosecutor. Prior to making this statement I heard what I believed were derogatory and insolting (sic) comments made about me by the Prosecutor to her Junior."

The appellant exhibited to his affidavit (Ex. "HAR15"") the transcript of the remarks to which I have earlier referred. The appellant further referred to events which occurred at the trial on 14, 15, 17 and 18 August; and 4 September 1995. He again annexed passages of the transcript taken on these days.

70. Nowhere in his affidavit does the appellant refer to, or seek to answer, the affidavits sworn by Michael Lambe or Christa Bradley, to which I have earlier referred, in which they deposed to remarks made by the appellant when he was returned to the cells on 9 August 1995. Nor does he seek to explain his state of mind on either 26 June 1995 or 9 August 1995.

73. The exhibits to the appellant's affidavit, at least in the form in which they were presented to this Court, do not appear to be complete. Several of the pages of the transcript which the body of the affidavit suggests are exhibited appear to be missing. When this was pointed out to the appellant at the outset of the appeal, he acknowledged that some of the pages were missing but was content to proceed on the basis of the material which was in fact annexed. The material was, so far as I can ascertain, designed to demonstrate that his mental condition at the relevant time was such as to excuse the conduct alleged against him on 26 June 1995 and 9 August 1995. The appellant also put before Mr. Justice Byrne in the contempt proceedings affidavits sworn by Dr. Drysdale and Mr. Healey in which they confirmed selected passages of the evidence which they had given during the appellant's trial. Mr. Healey had given evidence on some three occasions before 26 June 1995; and Dr. Drysdale gave evidence on 19 and 22 June 1995 and on three further occasions in August and September 1995 following the occasion of the appellant's threat to the prosecutor on 9 August. The opinions which they expressed of the appellant's condition were substantially similar; namely that he was suffering from depression and anxiety which reduced his concentration and attention span and his capacity to cope with the rigors of the trial. They both said that the appellant was obsessed to the point of being paranoid about the unfairness of the processes engaged in by the police, prison authorities, prosecution and trial judge. The combination of these factors, they said, were inclined to drive the appellant to the brink of emotional turmoil where he was unable to control his temper and caused him to "verbalize his emotional distress". Much of the appellant's emotional "brittleness", Drysdale and Healey opined, was the consequence of his lengthy period of incarceration without trial.

76. The contempt proceedings before Byrne, J. were conducted on the basis of the affidavit material to which I have referred. The appellant was represented by counsel but neither he nor any deponent was cross-examined. In his reserved judgment, delivered on 21 August 1998, his Honour found that each of the episodes of conduct particularized in the originating motion amounted to contempt of court. It was not in dispute before his Honour that the statements alleged to have been made by the appellant to the trial judge and to the prosecutor respectively on 26 June 1995 and 9 August 1995 had in fact been made. Nor was it in dispute that the conduct engaged in by the appellant on each occasion was capable of amounting to contempt of court. Although this Court has not been provided with a transcript of the submissions made by counsel to Byrne, J., it would appear that the contention made on the appellant's behalf was that, on the evidence before him, his Honour could not be satisfied that on either occasion the appellant possessed the intent necessary to constitute a contempt of court. It is apparent from his Honour's reasons that it was the submission made by appellant's counsel that, before a contempt could be found, the court would need to be satisfied to the criminal standard that the appellant, by his conduct, intended to interfere with the course of justice. His Honour was disposed to the view that, in a case where the conduct necessarily had a tendency to interfere with the course of justice, it was sufficient for the respondent to prove that the appellant simply had the intent to do the act which had that necessary tendency. His Honour said:

"In cases such as this where an accused addressed the judge on the bench deliberately in terms which are abusive and offensive or deliberately directs threats to injure or kill counsel, I doubt very much whether this Court should be concerned with an inquiry as to what was the actual purpose of the contemnor."

His Honour then referred to certain authorities and concluded:

"In a case like the present, however, where the acts themselves tend to interfere with the course of justice, it is sufficient that the court be satisfied that they were performed consciously and voluntarily."

His Honour however took the view that it was unnecessary for him to form a concluded opinion on this matter, having regard to the evidence before him. The evidence of Healey and Drysdale was, as he said, "selective", given in support of a variety of applications, and was not the subject of any elaboration before him. It was, as his Honour pointed out, material of a kind which threw little light on the appellant's state of mind at the time when he engaged in the conduct which he admittedly did on 26 June 1995 and 9 August 1995. Nonetheless his Honour gave, as he said, "anxious" consideration to this material in the light of counsel's submissions and did so in conjunction with the video recordings of each incident which were before him. Having done so, he concluded as follows:

"I am satisfied beyond reasonable doubt that, when he addressed the court in the terms he did on 26 June 1995, Mr. Rich did so consciously and voluntarily and with the intention of reproaching the judge for his decision to proceed with the trial when he, Rich, would have preferred otherwise. He did so with the intention of insulting the judge and of preventing or postponing his arraignment and the empanelling of the jury. He was under stress and it may be that his perception of his situation and his ability to restrain himself were affected by this, by a sense that he was not in control of his situation, and perhaps, by feelings of persecution that Mr. Healey described in his report. But I am satisfied that he intended to do what he did on this occasion and that his purpose was to gain control of the situation notwithstanding that this involved the disruption of the legal process. His conduct amounted to contempt of court."

His Honour also concluded that he was satisfied beyond reasonable doubt that when the appellant uttered the threats to the prosecutor on 9 August 1995, he intended to do so and to cause her fear. In so concluding, his Honour had regard to the evidence which had been given by Dr. Drysdale and Mr. Healey as to the appellant's mental state, which he considered in the context of the appellant's apparent demeanour as demonstrated on the video recording and also in the context of the undisputed remarks made by the appellant in the cells shortly after he had made the statements to the prosecutor. Upon the whole of that evidence his Honour concluded:

"I have no doubt that Mr. Rich intended, by his words, to interfere with the proper functioning by counsel of her duties in court. This constitutes a contempt of court."

86. Following delivery of his reasons, his Honour heard submissions on penalty and further adjourned the proceedings until 28 August 1998. When the matter was resumed on that day, counsel raised, for the first time, the form of the originating motion and contended that it was duplicitous because it alleged one contempt but particularized two separate and distinct episodes, each of which amounted to a contempt. His Honour dismissed the submission as one of "no substance" saying that it was apparent from the form of the originating motion that it was alleging two incidents and further alleged that "those incidents amount to a contempt of court". His Honour said that he had "proceeded on that basis".

89. The judge, on the same day, published reasons for imposing the penalty which he did. It appears from those reasons that he assessed the gravity of each incident which he had already found to amount to contempt of court. He regarded the conduct of the appellant on 26 June 1995 as a "serious" contempt because it was calculated to flout "the integrity of the trial process". He observed, correctly in my view, that the gravamen of such contempt was not to be measured by its impact upon the feelings of the judge but rather by its capacity to reduce the authority of the court and, thus, to interfere with the proper and orderly administration of justice (cf. Re Nash, ex parte Tuckerman [1970] 3 N.S.W.R.23). His Honour regarded the appellant's conduct on 26 June 1995 as a "calculated challenge to that authority" and said that "the penalty must reflect this".

92. As to the conduct of the appellant on 9 August 1995, his Honour said that he regarded it as "an improper and cowardly threat directed to an officer of the court in the discharge of her duties". He was satisfied that the conduct was engaged in with the intent to compromise a trial with which the appellant was not satisfied and "to manipulate court procedures in an illicit way to achieve his own ends".

95. In imposing the penalty which he did, the learned judge disregarded the provisions of the Sentencing Act 1991. He distinguished, in this respect, the practice in New South Wales, saying that there were, in his view, "serious difficulties in the way of accommodating the summary jurisdiction exercised by the court under the procedures established by O.75 to the requirements of the Sentencing Act 1991". His Honour did not say what those "difficulties" were, but he may have had in mind the comments of the Full Court of this State in Hinch v. Attorney-General ([1987] V.R. 721 at 731 (per Young, C.J.) and 749 (per Kaye, J.)).

98. His Honour stated that he regarded the appellant's conduct, particularly that of 9 August 1995, as "very serious". He also had regard to his finding that the conduct was deliberate and intended to manipulate the court's processes to achieve his own ends. He also took account of the appellant's "emotional" condition but did not regard that as displacing general deterrence as a primary purpose of punishment. He concluded:

"In all the circumstances I conclude that the appropriate penalty for the contempt is a period of 18 months imprisonment. Insofar as it is necessary or desirable that I do so, I indicate that I consider that the conduct on 26 June 1995 warrants a penalty of 6 months imprisonment and that on 9 August 1995 warrants a period of imprisonment of 12 months. I would not be minded to direct that these periods be served concurrently in whole or in part because the conduct of 26 June was different in character, directed to a different person and separated by a considerable period of time ... ."

His Honour then made the orders to which I have previously referred.

103. In his original grounds of appeal, the appellant challenged his Honour's finding of contempt on a number of bases, but, in essence, they can be reduced to the following:

(a) that the judge erred in finding, having regard to unchallenged medical evidence, that the appellant's utterances were deliberate, conscious and voluntary and made with the intent to interfere with the administration of justice;

(b) that the particulars of the originating motion and his Honour's ultimate orders were defective in a manner amounting to serious irregularity, which gave rise to embarrassment and prejudice. As developed in argument the appellant reduced this ground to a contention that the originating motion made allegations of two contempts "rolled up" into one.

At the beginning of the appeal, the appellant sought leave to add three further grounds in the following form:

1. that the trial judge was biased against the appellant. (When questioned about this ground, the appellant said that this amounted to an allegation of bias against the trial judge in the contempt proceedings);

2. that a miscarriage of justice occurred because the proceedings did not classify the contempt as "civil" or "criminal";

3. that a miscarriage of justice occurred because appellant's counsel in the contempt proceedings were incompetent and acted contrary to instructions.

Although counsel for the respondent raised no objection to the proposed amendments, the Court gave leave to address argument in support of the grounds, but reserved its decision as to whether such leave should be given. As nothing of any substance was advanced by the appellant in support of any of these proposed grounds, and because in my view there is no merit in any of them, I would refuse the leave sought to amend the notice of appeal by adding them.

Was the Judge in error in concluding that the appellant's conduct was voluntary?

115. The primary contention of the appellant before this Court was that Byrne, J. was in error in failing to give sufficient weight to "the uncontradicted medical evidence" and thereby in failing to find that there was a "reasonable possibility" that the conduct and utterances of 26 June 1995 and 9 August 1995 were involuntary and thus lacked the intent necessary to support the finding that they constituted contempt. As I understood him, he did not contend that his words and actions on both days, if accompanied by the relevant intent, were not capable of amounting to actionable contempt. Indeed, in my view, it would be difficult to contend otherwise. The thrust of his submission was that the affidavit material of Drs. Lewis and Drysdale, together with that of Mr. Healey, should have compelled his Honour to find that the impugned conduct was involuntary or, at least, to have compelled him to the conclusion that there was a reasonable doubt that it was not. It is, perhaps, pertinent to note that, during the appeal, the appellant advanced oral submissions, unattended by any written outline. Following the conclusion of argument, however, the appellant forwarded to the Court, via the President's Associate, and under cover of a letter dated 19 January 1999, a copy of his notes, written in preparation of his arguments on appeal. He had also forwarded a copy of these notes to the solicitor for the respondent. Whilst the submission of further material without the consent of other parties is neither usual nor to be encouraged, the Court has been prepared to accept the submitted material in view of the appellant's status as an unrepresented litigant. The material, as the appellant asserts, substantially represents "the core structures of [his] oral submission" and, in my view, no prejudice flows to the respondent from its acceptance.

118. In advancing his contentions, the appellant sought the Court's leave to put before it an "affidavit in support of fresh evidence" which he had sworn on 3 December 1998 and to which he exhibited a two page report from Mr. Healey dated 28 October 1998, in the course of which the forensic psychologist had proffered the view (inter alia) that:

"It was well within the realms of probability that he [that is the appellant] was so overwhelmed by anxiety and stress that he dissociated at the time of making remarks to the Judge and the Crown prosecutor. In my view, it is highly likely that such verbal utterances would have been made under a level of stress such as to cause loss of emotional control, which most likely related to more fragmented, erratic thought and verbal expressions, not assisting him in any way. His remarks lacked sensible awareness of his situation as an accused on trial, and could only adversely affect the outcome. The cause of his disturbed distressed mental function, most likely precipitating phases of dissociation, was embedded in a build-up of stress over time ... . The build-up of stress was due in large part to external factors, as already outlined. ... As indicated in a report dated 25 March 1995, and in evidence on 31 March [1995], Mr. Rich had demonstrated in the past a type of stoicism, and in view of the writer's knowledge of him could withstand considerable stress. To expect the average person to withstand the stressors he experienced for as long as he did would be unrealistic - most likely the average person would have capitulated similarly to stress with such a psychological blow."

The "psychological blow" to which Mr. Healey refers in the final sentence of his "report" was, as I understand it, the lengthy remand period, the struggle with Legal Aid, the seizure of documents in his cell and inadequate preparation facilities. Mr. Healey's letter was written in response to a letter which the appellant's solicitor had written to him, upon the appellant's instructions, on 5 October 1998, in which the psychologist was asked to express an opinion whether (inter alia):

"... After considering the facts and surrounding circumstances of this case together with the personal and family history of Mr. Rich, do you believe that he was dissociating at the time of making those derogatory remarks to the judge ... and the Crown prosecutor. Alternatively ... is there a possibility or probability ... that he was dissociating at the time of these offences? In your ... opinion, what was the cause of this dissociative state ...? Was it pathologically related? Or was it due to an external factor? Psychological blow? ... Would an ordinary person have been likely to withstood (sic) the psychological blow in similar circumstances ...?"

The appellant informed the Court that this letter was written upon his instructions after he had reviewed certain literature including an article entitled "Dissociation & Psychological Blow Automatism in Australia" (Int. J. Ment. Health, Vol.22, No.4 (1993-4) at 39 ff.). The appellant deposed, in his affidavit that Healey's "report" amounted to "fresh evidence" which "would have produced an opposite result had [it] been available to the primary ... Judge".

125. Notwithstanding certain unsatisfactory features of this material suggesting that it was neither "fresh" nor "new" evidence, counsel for the respondent consented to the Court's receipt of it. Neither the appellant nor counsel for the respondent asked for Healey to be called and the Court was not informed of the material which he had "considered" in expressing his opinion.

128. The appellant submitted that this material, when taken in the context of the evidence before Byrne, J., was so cogent and compelling as to drive this Court to the view that, if it had been available to the trial judge, there was a significant possibility that he would not have been satisfied that the impugned conduct constituted contempt of court (cf. R. v. Challoner, Court of Appeal, unreported, 28 July 1998, per Kenny, J.A.). Indeed the appellant went so far as to submit that because of the newly produced material this Court had no choice but to uphold the appeal and, as he submitted, grant a new trial. In the course of developing this submission the appellant canvassed at some considerable length, and not without dexterity, passages from psychiatric journals and various decisions in which courts had discussed, in different contexts and factual circumstances, the concept of "non-insane automatism" and/or "dissociation" induced by psychological factors (e.g. R. v. Falconer (1990) 171 C.L.R. 50; R. v. Donyadideh (Federal Court, unreported, 2 August 1995). By reference to these authorities the appellant sought to construct a submission that, if the trial judge had properly assessed the material before him, he would have entertained a reasonable doubt about the voluntariness of the appellant's conduct. Indeed, he submitted that, if Healey's letter of 28 October 1998 had been before him, the trial judge would have been compelled to entertain such a doubt. Thus, it was the appellant's submission that the evidence which was before his Honour, properly analysed, made it clear that he was in a "dissociative" state in which, as a consequence of repeated "psychological blows" suffered by him, he was from time to time lapsing into states of unreality where his mind was not associating with his conduct. If counsel had asked the right questions, it would have been readily apparent. Now that he, the appellant, had asked the correct questions, everything had been made clear.

131. For my own part, I find these submissions without substance. The evidence before the trial judge well entitled him to draw the inferences which he did about the appellant's state of mind at the relevant times. Indeed, in my view, no other conclusion was reasonably open on that evidence. His Honour's view was not formed on the so-called "medical evidence" alone. Indeed, as his Honour pointed out, that material as placed before him was "selective" and in a state from which it was difficult to draw any definitive conclusion. His Honour drew his conclusions from all the evidence before him which included, most importantly, the words which were spoken, the context in which they were spoken and the demeanour of the appellant at the time they were spoken. He had access to, as this Court has, a contemporaneous video and sound recording of the appellant's conduct. Furthermore his Honour had before him the unchallenged evidence of Lambe and Bradley as to what the appellant said, in the seclusion of the cells, immediately following the events of 9 August 1995. From this evidence his Honour concluded that the appellant, whatever may have been his psychological condition, knew very well what he was doing and was doing it to "manipulate" the court's processes to achieve his own ends.

134. Nor can I accept that the "medical evidence" before the primary judge demonstrated the existence of a person in a "dissociative" or "automatous" state. It was capable of demonstrating that, at the times when he was examined, the appellant was in a depressed and anxious state which, because of his personality, disposed him to emotional "brittleness" and feelings of persecution. Dr. Lewis, who saw the appellant on 10 May 1995 expressed the opinion that the appellant was in a state of stress where, if pushed, he was likely to lose control. He thus prescribed medication in the form of anti-depressants and tranquillizers. It was in response to this opinion, and a similar one expressed by Mr. Healey, that the armed robbery trial had been adjourned for more than a month. According to Dr. Lewis, when he next saw the appellant on 16 June 1995, he was "more composed" and was learning to "switch-off" or "dissociate" himself from the impact of the allegations made against him (A.B. 234). In this court, the appellant sought to contend that the use by Dr. Lewis of the word "dissociate" on this occasion supported his submission, but it is clear that the doctor was using the expression in an entirely different context. Healey expressed the view, on 22 June 1995, that the appellant was in a condition where "I think he is in a position to participate in the trial process".

137. Although I have not sought to set out in full the whole of the evidence given by the experts at the relevant time, I have endeavoured to capture the gist of it. None of them suggested that the appellant was suffering from any form of psychosis. The phenomenon of "the dissociative state" or "automatism" was well known to psychiatrists at the time. Neither psychiatrist suggested that the symptoms which they saw had produced or would produce such a state. It should not be thought that the episodes of 26 June 1995 or 9 August 1995 were the only outbursts from the appellant during his trial. There had been several well before those dates. It was not contended, either by experts or by counsel, that any of them were the consequence of involuntary behaviour. It was, thus, not surprising that the judge at the criminal proceedings, on 26 June 1995 said:

"In my view, on the material ... before me, the accused man is a long way from being in a mental condition that would warrant a postponement of the proceedings, either on a temporary or permanent basis."

It was this ruling which provoked the outburst of 26 June 1995. Yet the trial continued with the appellant's active participation. Dr. Drysdale gave further evidence to the court on 15 August 1995, after the threats made to the prosecutor on 9 August. The doctor, who was well aware of the appellant's impugned conduct, did not suggest that the outbursts were made whilst the appellant was in a dissociative state. He described the outbursts as a "venting process". The doctor did say (A.B.311-2) that he did not think the appellant "actually realises the implications of what he is doing there and then" but said:

"it all happens very fast and all he is feeling is the emotional turmoil and there's a vocalization. But, overall, he does recognize the implications of what's happening to him."

All this, taken at its highest from the appellant's point of view, does not suggest that the appellant's conduct was acted out in a state of dissociation where the mind was not going with the act and the act was the product of the sub-conscious forever obliterated from recall. Rather it suggests, as the learned primary judge found, that it was the product of a loss of emotional control, albeit by a man whose capacity for control was reduced by stress. Nor, in my opinion, does Mr. Healey's latest opinion have the necessary cogency which the appellant would attribute to it. Taken in the context of the whole of the evidence before his Honour it is, I think, of little weight. It is an opinion expressed more than three years after the event by a person who is not a psychiatrist and which appears to be somewhat at odds with the opinions which he expressed at the criminal trial; opinions which he confirmed by affidavit in the contempt proceedings. So far as the evidence reveals, Mr. Healey had not examined the appellant since 21 June 1995 and had not had access to the relevant material surrounding the events constituting the alleged contempts; in particular the audio/visual recordings and the statements made by Lambe and Bradley. In any event, the opinion is expressed in such a speculative and non-contextual form that it remains, at least to me, unclear as to what opinion is being expressed. Thus, when the author says that "it is highly likely that such verbal utterances would have been made under a level of stress such as to cause loss of emotional control", it suggests to the reader that he is saying little more than that the appellant lost his temper, but was nonetheless aware of what he was doing.

144. In the context of the whole of the evidence which was before Byrne, J., the opinion does not have the cogency of the type which would lead an appellate court to set aside the primary judge's findings. The nature of the conduct, its escalating character and its timing all point to the deliberate purpose which the primary judge found and was entitled to find. The evidence suggests, strongly to my mind, that the appellant was well aware of what he was doing and, as Ms. Gaynor submitted on behalf of the respondent, is contra-indicative of a "dissociative state" in which the appellant was out of touch with reality., Indeed, the statements which the appellant made after the "outburst" on 9 August 1995, strongly indicate that he knew very well what he had done and what he was about, at least on that occasion.

147. My conclusions in this regard do not deny that, at least on the occasion of his "outburst" on 26 June 1995, the appellant was under pressure. So much was accepted by the primary judge and, on this appeal, Ms. Gaynor conceded that he was a man under stress, a factor which she agreed was a mitigating circumstance. Nonetheless, she submitted, it was clearly conduct which was, as his Honour found, calculated to achieve an object, namely the adjournment of the trial, which was slipping away from him at the time.

150. I agree with the respondent's submissions in this regard and, accordingly, reject this ground of appeal which rests upon the foundation that his conduct was involuntary.

Has the appellant suffered prejudice by reason of "serious irregularity" in the originating motion and/or the judge's order?

154. The appellant contended that he had suffered prejudice because the originating motion called upon the judge to punish, as one contempt, two discrete episodes of conduct each amounting to a separate contempt. This defect, he submitted, was carried into the ultimate order made by the judge on 28 August 1998, when he ordered the appellant to be committed to prison for a total period of 18 months, to commence upon the expiration of the period of imprisonment which the appellant is currently undergoing.

157. The appellant contends that the originating motion is "duplicitous" and created prejudice principally because it carried the risk that the judge would permit the evidence relevant to one episode to infect his findings on the other.

160. As I have already stated, this was not a point taken by the appellant's counsel at the outset of the primary hearing, but was only taken on 28 August 1998 when the judge was about to pronounce punishment. His Honour took the view that the submission had no substance but indicated that, if it was desirable or necessary, he considered that, of the total period of 18 months imposed, the conduct of 26 June 1995 warranted a period of 6 months, and the conduct of 9 August 1995 warranted a period of 12 months, such periods to be served cumulatively. It is not clear to me whether his Honour considered that he was being called upon to punish one contempt comprising two episodes or to impose one punishment for two discrete contempts. From the words that he used, when dismissing counsel's submissions on 28 August 1998, it would seem that he was adopting the former view. But this sits uneasily not only with the words of the originating motion but also with his Honour's reasons delivered on 21 August 1998 in which he had found that each episode of conduct alleged amounted, in itself, to a contempt of the court.

163. It might be thought that, as a matter of strict construction, the originating motion was asking the court to punish two discrete contempts of court, but to inflict a "global punishment". In this respect it is, I think, ambiguous because it particularized two discrete episodes of conduct each of which amounted, if proved, to a contempt of court. Each was, thus, independently subject to punishment.

166. Counsel for the respondent, on the hearing of the appeal, conceded that the originating motion, in the form cast, is and was inappropriately framed. That does not mean, however, that any prejudice has been suffered by the appellant. Although contempt of court is, at least in this State, a common law offence, it is sui generis in the sense that it is punishable upon a summary procedure provided for by the rules governing civil proceedings. Thus the concept of duplicity, which is designed to ensure that an accused person should only be charged with one offence in one count on a presentment, does not strictly apply to the summary procedure alleging contempt of court. None the less, contempt of court is a criminal offence and the summary nature of the proceedings cannot be permitted to subvert principles of fairness or to become an instrument of oppression to an alleged contemnor. Thus the courts over the years have required strict compliance with the rules, particularly those which are designed to protect the interests of the contemnor (see Re B. (J.A.) (an infant) [1965] Ch. 1112 at 1117-8, per Cross, J.; Coward v. Stapleton [1953] HCA 48; (1953) 90 C.L.R. 573 at 579-80). He is entitled to know what is being alleged against him and to be given every chance to meet the allegations. He is entitled to strict compliance with the rules as to personal service of the motion (Re Pollard (1868) L.R. 2 P.C. 106 at 120).

169. However, in this case, the defect in the originating motion, if indeed it be one, calling for one punishment of two discrete contempts has not, in my view, occasioned any prejudice to the appellant. His Honour treated the motion as calling upon the respondent to prove two separate contempts. That much is clear from his reasons, to which I have already adverted. He found the two contempts proven upon the evidence relating to each. No confusion arose in the minds of the appellant or his counsel as to what it was that had to be answered. The appellant, in his affidavit, expressed regret for the first incident and gave an explanation for the second. His counsel were prepared to meet the motion, until the "11th hour", in the form which it took. There is no basis for the contention, which is currently made, that the appellant suffered the risk that the finding of one contempt might be prejudiced by the evidence on the other. The evidence on both was all contained in affidavits filed with the judge. If anything, as it seems to me, the form of the motion could only have benefited the appellant, in the sense that it might be said that, unless the respondent proved both contempts, he could not have been punished for either. Although, in my view, the judge was wrong in imposing a "global" penalty of 18 months, no prejudice has been pointed to by the appellant as a consequence because his Honour has clearly indicated what he regards as an appropriate penalty for each contempt.

172. It would have been appropriate for the respondent to have asked the trial judge, at the outset or during the proceedings, to have amended the motion to make it clear that the Court was being called upon to punish each of the contempts. Had that been done there could have been no objection to the amendment of paragraph 1 of the motion to make it abundantly clear that two punishable contempts were being alleged. In that circumstance, his Honour's orders would no doubt have followed the "provisional form" to which he referred in his reasons of 28 August 1998.

175. Ms. Gaynor has requested this Court to order the amendments which should have been made below. This Court has ample power to do so under Rule 64.22 of the Rules of Court. I would be disposed to make those amendments. It was not submitted by the appellant that, if the Court was of the view that no prejudice was or could have been suffered by him, such amendments should not now be made. For reasons which I shall shortly advert to, it will be necessary to set aside the formal orders made by his Honour relating to penalty (paragraph 2 of the orders of 28 August 1998) and the substituted orders will make it clear that the penalties have been imposed in respect of each contempt alleged and proved.

179. The appellant has challenged the sentence imposed by the learned primary judge on the grounds that it was excessive and fails to pay sufficient regard to the "special circumstances surrounding the commission of the offence", namely evidence that he was in a fragile psychological state. His submission was that the judge did not place his "outbursts", particularly the one of 26 June, in the context of the evidence which showed that there were a number of factors which had reduced his capacity for self control to a minimum. These "special circumstances", he contended, demonstrate that his Honour's discretion miscarried in treating the contempt of 26 June as a "serious" one and in regarding it as "calculated". He further contended that, having regard to his mental state, it was inappropriate for the judge to have given as much emphasis as he did to "general deterrence". The appellant also submitted that, in failing to take sufficient account of the delay between the alleged contempts and the making of the application to punish them, his Honour had failed to give adequate weight to a mitigating factor.

182. Before turning to consider these submissions, it is pertinent to note that Ms. Gaynor conceded during the hearing of the appeal that the learned judge's sentencing discretion had miscarried and that his Honour's orders in respect of penalty should be set aside; and that this Court should consider for itself the question of the appropriate penalty in the light of the submissions made. This concession was made, as I understand it, for the following reasons:

(a) the learned judge had treated the punishment for the two contempts in a "global" fashion and failed to incorporate in his final orders a punishment for each contempt;

(b) his Honour had ordered the sentence of 18 months which he imposed to be served following the expiration of the sentences which the appellant is currently undergoing; which is contrary to the provisions of s.15 of the Sentencing Act 1991 regulating the order in which sentences of imprisonment are to be served in this State;

(c) his Honour, although imposing a term of imprisonment of 18 months, did not consider whether a non-parole period should be imposed (R. v. Sener [1998] 3 V.R. 749).

188. I am satisfied that the concession made on behalf of the respondent was properly made for one or more of the reasons assigned. As already stated, it is my view that his Honour was being called upon, notwithstanding the inelegant form of the motion, to punish the appellant for two discrete punishable contempts. His Honour did not see it that way and, in imposing a "global" punishment, I think he was wrong. Although, in my view, it is not inappropriate to apply to the Court to punish two discrete contempts in the one motion, the Attorney-General has, in the past, filed two separate motions (cf. Hinch v. Attorney-General, supra). It is true that his Honour gave consideration to the penalties which the contempts individually, in his opinion, warranted but he did not incorporate the results of his consideration in his final orders.

191. His Honour appears to have taken the view that the provisions of the Sentencing Act 1991 have no part to play in the exercise of the summary jurisdiction by means of which contempts are traditionally punished. That may be the reason why he gave no consideration to the provisions of ss. 11 and 15 of the Act. For my own part, I cannot see why the fact that the Court is exercising a summary jurisdiction under O.75 of the Rules should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence. I can understand why the nature of a criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly would this be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders might be seen to be inconsistent with the court's power to commit for contempt of court. Because the power to commit for contempt has always been regarded as a power to commit for a "fixed term", it may well be that the legislative discretion given to courts to suspend sentences and to fix "minimum terms" are also inconsistent with the exercise of the power (cf. Morris v. Crown Office [1970] 2 Q.B. 114 at 127, per Davies, L.J.). Considerations of this kind, no doubt, influenced Young, C.J. in Hinch's case, supra at 731, to say:

"But general provisions relating to sentencing should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court ... ."

Because it would, in this case, be inappropriate to fix a non-parole period, it is unnecessary to decide whether ss. 11 or 14 of the Sentencing Act apply in fixing punishments for contempt of court.

196. However, in my view, there can be no reason why provisions such as s.15 of the Sentencing Act do not apply to sentences imposed for contempt of court. That provision is clearly of general application and directs, for obvious administrative purposes, the order in which sentences of imprisonment are to be served where the sentence is imposed upon a person already undergoing a term of imprisonment. His Honour's orders have taken no account of that provision.

199. In re-exercising the discretion I would adopt the respective punishments which his Honour regarded as being merited by the respective contempts - namely 6 months for the contempt of 26 June 1995 and 12 months for the contempt of 9 August 1995. However I would direct that those sentences be served concurrently with each other. I would do so mainly because of the lengthy sentence which the appellant is currently serving, a fact which his Honour did not specifically note. In the interests of totality, it seems to me that justice will be achieved if the appellant is ordered to serve an additional twelve months. Although the conduct of the appellant on 26 June 1995 cannot be condoned, his real culpability is to be found in his conduct of 9 August 1995 when, in order to achieve a stated aim, he quite deliberately threatened the prosecutor. On the material available, it seems to me that his conduct on 26 June 1995 was not of the same gravity. Although I do not demur from his Honour's conclusion that it was calculated to achieve an end, such calculation as there was was largely irrational and influenced by the debilitated emotional state from which, as his Honour found, he was suffering. Furthermore, the appellant deposed that he "regretted" it; something which he was not prepared to depose in relation to his conduct of 9 August 1995.

202. For the reasons stated I would dismiss the appeal against his Honour's findings of contempt, but alter his orders for punishment in the manner to which I have referred.

207. I have had the advantage of reading in draft the reasons for judgment prepared by the learned President. Subject to the observations that follow, I agree in them and in the orders that his Honour proposes. Except where I refer to the consequences of a defence of insanity, I shall speak of the law as it stood prior to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, because the allegedoffences were committed prior to the "commencement day": see cll.1 and 7 of Schedule 3.

210. The law draws a distinction between what are usually described as "insane automatism" and "non-insane automatism". (The terminology has been criticized: see Jones, "Insanity, Automatism, and the Burden of Proof on the Accused" (1995) 111 L.Q.R. 475 at p.497.) The former is not a defence in itself, but the accused may rely on the disease of the mind from which he suffered with a view to establishing insanity. The latter gives rise to a defence that the prosecution must exclude beyond reasonable doubt, for it does not deny the presumption of sanity but is inconsistent with voluntary conduct. I do not understand the references to intent in the President's judgment to imply a different analysis.

213. Such material as arguably suggests that the appellant may have been in a dissociative state on 26th June or 9th August 1995 points, if at all, to insane automatism. On 19th June 1995 Dr. Drysdale gave evidence that he thought the appellant had a generalized anxiety disorder and a moderate degree of major depressive disorder. On 21st June 1995 Dr. Lewis testified that his diagnosis, too, was anxiety and depression. He also said that a person in the appellant's position could become dissociated, but that was because he was suffering from reactive depression. Cf. R. v. Milloy [1993] 1 Qd.R. 298 at p.303. On 4th September 1995 Dr. Drysdale gave evidence that the appellant's condition was essentially the same as it had been over the last several weeks except that the depressive element of the disorder, which he described as an illness, had become slightly more marked. If the appellant acted in a dissociative state on either occasion, that was not the temporary reaction of a sound mind discussed in R. v. Falconer [1990] HCA 49; (1990) 171 C.L.R. 30.

216. I doubt that the appellant intended us to consider insanity, having regard to the consequences of that defence when it succeeds; but, if regard is had to the evidence before Byrne, J. together with the letter from Mr. Healey that was received by consent at the hearing of the appeal, neither insanity nor non-insane automatism appears to the requisite standard. As the proceedings are civil in form, it may be that that is sufficient; but I assume in favour of the appellant that we should approach the matter in the same way as if there had been a trial on presentment together with new evidence received by consent on appeal. If a jury had had regard to the evidence before Byrne, J. and Mr. Healey's letter had been received in that way, convictions for the two contempts would not have been quashed.

219. There are two other observations I wish to make about the evidence. The first is that the video recordings are much more informative than the transcripts. They enable one to observe the appellant's demeanour, hear his tone of voice and notice the timing of, and pauses between, his remarks. The second is that, whilst the evidence of Mr. Lambe and Ms Bradley is relevant to whether the appellant was in a dissociative state on 9th August 1995, it has little or no bearing on the earlier occasion. I have disregarded it in assessing the appellant's submissions directed to the first contempt.

222. The gravity of the second contempt is self-evident. As to the first, I respectfully adopt the following observations of the learned primary judge:

"Contempt of this kind is treated seriously because it often happens that a decision goes against one or other party in a trial. The unsuccessful party must accept the decision if the integrity of the trial process is to be maintained. This is not, as has been observed, out of some regard for the dignity of the court or the person of the judge, but to prevent undue interference with the administration of justice. Such interference offends the public good by weakening the authority of the court and its task of doing justice between members of the public or, in the criminal process, between the State and the accused. See generally BHP v. Dagi [1996] VicRp 62; [1996] 2 V.R. 117 at 154-7, per Tadgell, J.A.; at 193-4, per Hayne, J.A."

226. In ordinary circumstances I should have thought that the sentences of six months' imprisonment and 12 months' imprisonment should be served, at least in part, cumulatively upon each other as well as upon the sentences that the applicant was already undergoing. They were separate offences, calculated to undermine the administration of justice in different ways, and the differences between them are taken into account by imposing six months' imprisonment for the first and 12 months' imprisonment for the second. Total concurrency is difficult to justify but, in the peculiar circumstances of this case, which the President and Buchanan, J.A. are better placed to judge than I, having heard and decided both the previous appeals, I am content to agree in the direction for concurrency that they propose.

231. I agree that the appeal against the finding of contempt should be dismissed for the reasons stated by Winneke, P. I also agree that the orders for punishment should be altered in the manner proposed by Winneke, P.