HER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v Cameron SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, MAHONEY JA and COLE JA 13 October 1994 [1994] NSWCA 128 CONTEMPT OF COURT The opponent verbally abused, and threatened, and assaulted, a person who was waiting to give evidence on certain civil proceedings against the opponent's mother in the Local Court. Although the opponent was acting under personal stress his conduct was deliberate and was calculated, both objectively and subjectively, to intimidate the witness - HELD - The conduct amounted to contempt of court. Gleeson CJ. The claimant claims a declaration that the opponent, Cameron Neale Hayden, is guilty of contempt of court in that on 20 January of this year at the Local Court at the Downing Centre at Sydney the opponent abused, threatened and assaulted Andrew David Duell in respect of the attendance of Andrew David Duell as a witness in certain proceedings in the Local Court. In accordance with the Court's usual practice it has heard evidence and argument on the issue of liability before dealing with the question of penalty, if that question should arise. The opponent has foreshadowed that if the Court comes to the question of penalty he will desire to tender to the Court some psychiatric evidence. The matter has been before the Court for interlocutory purposes on a number of occasions. When the matter was called this morning the opponent was represented by Mr Driels of counsel. However, shortly after the proceedings got under way Mr Driels informed the Court that his retainer, and that of his instructing solicitor, had been withdrawn and Mr Hayden then proceeded torepresent himself. The facts of the case are within a relatively short compass and are clear. On 20 January in this year the opponent's mother was involved in certain proceedings in the Local Court at the suit of the State of New South Wales. For reasons that need not be elaborated, the State claimed that Mrs Hayden owed the State an amount in excess of $ 3,500 for the cost of a transcript. The transcript related to a trial of the opponent in respect of an offence of which he was convicted. He appealed to the Court of Criminal Appeal and the transcript was wanted in connection with that appeal. This Court knows practically nothing of the merits of the dispute between the State and Mrs Hayden and the merits of that dispute are not of relevance to the question whether the opponent is guilty of contempt of court. What is of significance in relation to the charge of contempt is that the opponent was present at court, with his mother, on 20 January 1994 and was apparently representing her in the proceedings before the court on that day. Gathered outside the court, for the purpose of possibly giving evidence in the proceedings, were a number of witnesses on behalf of the State of New South Wales. They included Andrew David Duell. 2 UNREPORTED JUDGMENTS The evidence as to what occurred at the Downing Centre between the opponent and Andrew David Duell is contained in an affidavit of Mr Duell of 28 February 1994, an affidavit of K J Slavin of 15 March 1994, an affidavit of MA Blackmore of 22 March 1994 and an affidavit of J J Rogers of 23 May 1994. Evidence has also been given by N P Mcllveen of 23 June 1994. Four of those witnesses were cross-examined and elaborated, to some extent, upon their evidence. I accept all of those witnesses as witnesses of truth and I accept the evidence contained in the affidavits as well as their oral evidence. That evidence shows that at about 3.50 pm on 20 January 1994 whilst Mr Duell was seated with Mr Slavin and Mr Blackmore outside the courtroom inwhich the proceedings between the State and Mrs Hayden were going on, the opponent, apparently during a break or lull in that proceeding, approached Mr Duell. Mr Duell was reading an affidavit that he had sworn. The opponent said to him, 'Are you reading something?'. Mr Duell said, 'Yes'. The opponent said, 'Has it got anything to do with this case?'. Mr Duell said, "Yes'. The opponent said, 'You're a cocksucking prick'. The opponent then moved back into the court. A short time later he came back to Mr Duell and said to him, 'You're a cocksucking prick'. He then walked a couple of paces closer to Mr Duell and said in an aggressive tone, 'You don't think you're going to make it home tonight, do you?'. He then walked around and stood about half a metre from Mr Duell and said, 'Come on, do you want to take me. I'll fight you'. He leaned forward and brought up his arms with his fists clenched. His fists were level with Mr Duell's face. The opponent then repeated the words a couple of times, "Come on, do you want to take me. Here and now.' The opponent then swung his right fist at Mr Duell quickly and then followed with his left fist. Mr Duell put up his arms to protect his face and pulled his head back. The opponent did not contact Mr Duell with his fists. The opponent then left and started to walk away. He again said to Mr Duell, 'You're a cocksucking prick'. Contempt of court consists, amongst other things, of conduct which as a matter of substantial practical reality has a tendency to prejudice pending proceedings. One well recognised category of contempt of court involves threatening witnesses in pending proceedings in order to induce them to give or not to give evidence or threatening reprisals. In Moore v The Clerk of Assize Bristol (1972) 1 All ER 58, Denning LJ said: It is a contempt of court to assault a witness after he has given evidence. It is also a contempt of court to threaten him or put him in fear if it is done so as to punish him for what he said. The same principle applies in relation to assaulting or threatening orabusing a witness before he has given evidence. The conduct of the opponent towards Mr Duell, considered objectively, was clearly calculated to intimidate him and I would infer that at the time the opponent engaged in the conduct this was known to and intended by the opponent. The opponent has told us in his evidence, and it may well be the case, that he was at the time acting under stress and in circumstances where his conduct was not calm and collected. I infer, however, from the evidence that it was deliberate conduct, even if it may have been conduct engaged in by the opponent in the heat of the moment and under the stress of the civil proceedings that were currently WRER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v Cameron (Cole JA) pending against his mother. Conduct does not have to be carefully and coolly planned in order to be deliberate for the purposes of the law. I am satisfied that the conduct of the opponent was deliberate in the relevant sense and that it was calculated both subjectively and objectively to intimidate and harass Mr Duell. In my view the charge of contempt of court has been made out and the court should make a declaration in terms of paragraph | of the summons. Mahoney JA. I agree. Cole JA. I also agree. 1. Declarations of contempt made. 2. Matter adjourned for evidence argument on the question of penalty. Counsel for the Claimant: R N Howie QC/M J Saxton Solicitors for the Claimant: W Grant: Acting Crown Solicitor Counsel for the Opponent: Jn person Solicitors for the Opponent: A Coultas: Legal Aid Commission