Lewis v Ogden [1984] HCA 28

High Court of Australia Mason, Murphy, Wilson, Brennan and Dawson JJ. Lewis v Ogden [1984] HCA 26

ORDER Appeal allowed. Order of King J. made 7 May 1982 set aside and in lieu thereof order that the order nisi granted by Crockett J. on 22 July 1981 be made absolute. * The order pronounced on 15 May 1984 included an order that the respondent pay the appellant's costs in the High Court and the Supreme Court of Victoria. After hearing argument the Court directed that that part of the order should be withdrawn upon the Crown's undertaking to pay those costs, with liberty being reserved to apply to the Court in the case of disagreement.

Cur. adv. vult.

May 15 Mason, Murphy, Wilson, Brennan and Dawson JJ.

The Court delivered the following written judgment:—

This appeal by special leave arises out of the conviction of the appellant for contempt under s. 54A(1)(a) of the County Court Act 1958 Vict., as amended, by a judge of the County Court, for wilfully insulting that judge in the course of an address to the jury on behalf of the appellant's client in a criminal trial for conspiracy in which the appellant's client was one of three accused. A fine of $500 was imposed in respect of the conviction. In proceedings for relief by way of certiorari in the Supreme Court of Victoria, King J. quashed the imposition of the fine on the ground that the County Court judge failed to provide an adequate opportunity to the appellant to adduce evidence or advance argument on the issue of penalty. The order nisi, which also sought to challenge the conviction itself, was otherwise discharged. No order for costs was made. In the appeal to this Court the appellant seeks to challenge the conviction.

In the trial the appellant represented an accused named Paul. The co-accused were represented by other counsel. In the course of his address to the jury the appellant made certain remarks concerning the role of a judge in a criminal trial, drawing a distinction between the judge's comments on questions of law and his comment on questions of fact, informing the jury that they were not bound to accept his Honour's views on the facts and inviting them to consider his views on the facts with some care because, in the appellant's view, the judge had shown a strong disposition to favour the prosecution case against the case the appellant had advanced on behalf of his client.