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[1998] NSWSC 26
Supreme Court of NSW
1998-03-16
Hidden J, Murray AJ, Dunford J, Kirby P
Original judgment source is linked above.
The application before me must also be dismissed for the same reason that Dunford J refused to grant a stay. Willesee is clear authority for the proposition that trial by jury for contempt is obsolete and that summary trial is now the normal procedure. Before me, the defendant was represented by counsel who tried valiantly, but unsuccessfully, to find some way around that decision. He referred to Cap. 29 of Magna Carta, affirming the right to trial by one's peers, and its incorporation into the law of New South Wales by s 6 of the Imperial Acts Application Act 1969. However, by that section, various imperial enactments have the force of law in New South Wales "except so far as affected by ... State Acts from time to time in force in New South Wales": s 6(b). In Galea v New South Wales Egg Corporation (C of A, unreported, 21 November 1989) Kirby P (at p 11) observed that this "would appear to envisage the affectation and modification of the continuing application of the enumerated Imperial Acts by ordinary legislation enacted by the State Parliament." Accordingly, any guarantee of trial by jury in Magna Carta can be, and has been, overridden by the Supreme Court Act and Rules as far as contempt is concerned.
Counsel made reference to the guarantee of trial by jury in respect of indictable offences against any Federal law in s 80 of the Commonwealth Constitution. In oral argument he acknowledged that s 80 is concerned only with Commonwealth offences and, as I understand it, his reference to the section was merely as part of the history of the development of trial by jury in this country, and as an indication of the respect afforded to that method of trial. For the plaintiff, the Crown Advocate queried whether any submission based on s 80 might involve a matter arising under the Constitution so as to require the procedure under s 78B of the Judiciary Act 1903 to be followed. When I reserved judgment I invited counsel for the defendant to provide submissions in writing if he wished to develop an argument founded upon s 80, in which event the necessity to proceed in accordance with s 78B of the Judiciary Act would be considered. As it happened, Mr Wilson withdrew his instructions from his legal advisers shortly thereafter. He has since forwarded some written material to me which refers to s 80 of the Constitution, but takes the matter no further. I am satisfied that the proceedings before me do not involve a matter arising under the Constitution, or involving its interpretation, and s 78B of the Judiciary Act has no application.
A submission was also made that the prosecution under s 326 of the Crimes Act, which would be on indictment, should proceed in advance of (or perhaps instead of) the contempt proceedings, so as to afford the defendant the benefit of a trial by jury. This argument also is without substance. As the Crown Advocate pointed out, the deferral of the prosecution under s 326 is a legitimate exercise of prosecutorial discretion and this court could not compel the Director to take some other course.
Accordingly, the application for trial by jury in respect of the alleged contempt must be dismissed.
The Prothonotary
Wilson Matter No 12914/97 [1998] NSWSC 26