COOK v PHILLIPS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy ACJ, MAHONEY AP and SHELLER JA 14 July 1995, 29 September 1995 [1995] NSWCA 94 CONTEMPT — threatening words to witness in waiting in courtroom — witness touched on shoulder — held contempt proved — declaration made — contemnor ordered to pay costs on indemnity basis. McIntyre v Perkes and Anor (1987) 15 NSWLR 417 (CA) consd. CONTEMPT - threats to witness in civil proceedings - threats occur in courtroom but are not heard or seen by trial judge - complaint of contempt referred to the Court of Appeal - dispute concerning words used but admission that contemnor did speak to and touch a witness in waiting - held: (1) The conduct of the contemnor amounted to contempt which have been proven beyond reasonable doubt; (2) In the circumstances, it would be adequate to (a) make a declaration to that effect; and (b) order the contemnor to pay the complainant's costs on an indemnity basis. McIntyre v Perkes and Anor (1987) 15 NSWLR 417 (CA) applied; Attorney-General v Haydon, Court of Appeal (NSW), unreported, 23 November 1994; [1994] NSWJB 146 distinguished. ORDERS 1. That it be declared that Ian Gregory Phillips is guilty of contempt of court in that on 19 April 1995 in Court 8A in the Supreme Court of New South Wales he said and did the matters referred to in the Statement of Charge; and 2. That Ian Gregory Phillips be directed to pay to Phillip Geoffrey Cook on account of the costs incurred by Mr Cook and in to the present proceeding the sum of $7,000, such payment to be made on or before 13 October 1995. Kirby ACJ The basic facts are set out in the reasons of Mahoney AP. I agree with his Honour's conclusion that it was proved, beyond reasonable doubt, that Mr Ian Phillips (the opponent) was guilty of contempt of court in the circumstances described. The matter of difficulty is that of determining the appropriate response of the Court to the proved facts. MATTERS OF AGGRAVATION There are a number of considerations of aggravation: 1. The opponent accepts that he said the threatening words "T''ll get you". Although the context and preceding words are disputed, those words, of themselves, are bad enough when uttered to a witness or potential witness actually present in a court of law. They have the intended meaning described by Mahoney AP; 2. The opponent explained in evidence that he had come to court expecting to let Mr Cook know of his anger. The words he uttered were the product of this determined course of conduct upon which he deliberately embarked; 3. The inescapable conclusion is that the very reason of the opponent's attending court was therefore to administer some form of threat, or like message, to Mr Cook and to do so in the court environment. This is completely unacceptable. It must be dealt with seriously both to punish the opponent and to deter him and others from such conduct in the future; and 2 UNREPORTED JUDGMENTS 4. The cause of the opponent's anger derived from a personal loss which he conceived had been suffered as a result of the suggested wrongdoing of Mr Cook as a company officer. Remarks made by a person such as the opponent in an Annual General Meeting of a company, or elsewhere, have a character different from remarks made in a court room during proceedings then on foot. It is in the nature of matters that come before courts that there will often be strong passions raised. Unless this Court by its orders in cases such as this controls such passions in the environment of the court room and the precincts of the court, the achievement of peaceful curial resolution of disputes will be frustrated and may, in a particular case, be prevented. This civilised feature of our society could then give way to verbal abuse, physical assault and even worse; MATTERS OF MITIGATION As against these considerations which would appear to warrant a custodial sentence in this case, a number of factors, disclosed by the evidence, cause me to hold back from that course: 1. Although the conduct of the opponent in attending court was deliberate, I am prepared to accept that the actual words which he spoke were spontaneous and not pre-meditated. This controls the significance to be attached to those words. It distinguishes this case from others in which written threats have been directed to witnesses to discourage them from giving evidence; 2. The conduct of the opponent did not involve a serious blow to Mr Cook or an affront loud enough, or offensive enough, to come to the attention of the judge or other persons in the court; 3. The opponent indicated to this Court that he had "no disrespect" for its process. He stated that, if he were found to have done wrong, he would "take his punishment like anyone else". He said that: "Tf I have done the wrong thing, I will have to wear my punishment on the chin." These proceedings will, I trust, make it plain to the opponent that he has done wrong and that he must be made to realise that conduct of the kind found will not be accepted by our courts; 4. The opponent endeavoured to explain to this Court the bases of his belief that Mr Cook had acted in a very wrong way as to a company officer. He is entitled to enjoy freedom of speech and to criticise Mr Cook in every lawful fashion. This Court is not concerned in the rightness or wrongness of his complaints about Mr Cook. The opponent's errors involve: * His choice of the place and occasion in which to voice his opinions to Mr Cook; * The words found to have been used; and * The assault involved in his putting his hand on Mr Cook's right shoulder and striking it. ORDERS Mr Cook has been involved in further litigation involuntarily by reason of the action of McLelland CJ in Eq in referring the proceedings to this Court. The courtroom conduct of the opponent was not of Mr Cook's making or invitation. He was sitting quietly in court waiting to give evidence. By reason of the reference, Mr Cook has been forced to incur additional legal costs. These were estimated, on an indemnity basis, to amount to $7,000. On my understanding of the evidence given in other cases of similar length and difficulty, that would appear to be a reasonable estimate of the costs. URJ COOK v PHILLIPS (Mahoney AP) 3 Although the contempt found is by no means insignificant, I am not prepared to dissent from the course which Mahoney AP has proposed. In reaching the same orders, I am affected by my estimate that the opponent was somewhat Psychologically disturbed by the conceived wrongs of Mr Cook to himself and to his family. This caused him to act in an aberrant way. Upon the impression I received from observing the opponent's behaviour in Court, I would judge the incident to be an isolated one, most unlikely to be repeated. The opponent holds a responsible position in his employment. The orders proposed will be sufficient to bring home to him the opinion of the court as to his conduct. They will adequately act as a warning to others. Recent, more aggravated cases have resulted in custodial sentences. See Attorney-General for New South Wales v Hayden, Court of Appeal (NSW), unreported, 23 November 1994; [1994] NSWJB 146. See also European Asia Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 (CA), 463. This case is not as serious as those. But it is serious enough. And the orders imposed will reflect sufficiently my condemnation of the opponent's actions and warning to others who might be tempted to imitate them. ORDERS I agree in the orders proposed by Mahoney AP. Mahoney AP Mr Ian Gregory Phillips is charged with contempt of court in that on 19 April 1995 in Court 8A of the Supreme Court of New South Wales during the hearing of a proceeding in the Equity Division No 2795 of 1994, he: "1. spoke threateningly or menacingly to the plaintiff Phillip Geoffrey Cook. 2. assaulted and battered the plaintiff Phillip Geoffrey Cook. 3. by reason of (a) and/or (b) above: (a) attempted to threaten, dissuade or influence Phillip Geoffrey Cook in relation to the giving of evidence by the said Phillip Geoffrey Cook in these proceedings. (b) attempted to or did interfere with or prejudice the due process of justice in these proceedings." The Particulars of the charge are as follows: "(i) On 19 April 1995, Ian Gregory Phillips whilst in Court 8A of the Supreme Court of New South Wales, did approach the plaintiff and placed both his hands with some force onto the shoulders of the plaintiff and whilst in that position with his face close to the plaintiff's face said the following word or words to the following effect: "You are in deep shit. Back off or I'll get you". (ii) As Ian Gregory Phillips uttered the said words he took his right hand away from the plaintiffs right shoulder and struck the plaintiff with a short, sharp but not painful blow with his clenched right fist on the point of the plaintiff's right shoulder." The proceeding came before this Court on 15 May 1995. The moving party, Mr Phillip Geoffrey Cook, was represented by counsel; Mr Phillips appeared in person. The nature of the proceeding was then discussed before the Court. It was indicated to Mr Phillips that it would be "wise for you to get legal advice". The proceeding was stood over to a date to be fixed. The proceeding came before the Court for hearing on 14 July 1995. Mr Fagan of counsel appeared for Mr Cook. Mr Phillips informed the Court that he realised that the charge was "serious" and "even could affect (his) liberty". He indicated that "it was my decision that I should pursue it alone". 4 UNREPORTED JUDGMENTS The evidence adduced for Mr Cook established that on 19 April 1995 at about 2.10 pm he was sitting in Court 8A where proceedings were being heard by his Honour the Chief Judge in Equity, Mr Justice McLelland. He saw the defendant Mr Phillips sitting in the line of seats immediately behind him. While the proceeding continued before his Honour, Mr Cook's solicitor Ms Victoria Cowan spoke to Mr Cook. Mr Phillips said, "Smart arse bitch". Ms Cowan said to Mr Cook, "Don't get upset. His purpose is to upset you". Less than a minute later, Mr Cook "felt a force come down on each of my shoulders from slightly behind and to the right of me". Mr Phillips had "put both his hands onto my shoulders and was leaning forward from behind and from my right with his face close to mine". Mr Phillips said to Mr Cook, "You are in deep shit. Back off or I'll get you". He then took his right hand away from Mr Cook's right shoulder and stuck him a "short, sharp but not painful blow with his clenched right fist on the point of my right shoulder". Both Mr Cook and Ms Cowan made a record of what had taken place. Subsequently, on the same day, Mr Biscoe of counsel, then appearing in the proceeding before McLelland CJ in Eq, informed his Honour of the substance of what had taken place. McLelland CJ in Eq referred the matter to this Court and it has been dealt with as a charge of contempt. Both Ms Cowan and Mr Cook gave evidence before this Court. An affidavit by each of them was tendered. Mr Phillips cross-examined Ms Cowan and Mr Cook. At the close of the case for Mr Cook, the Court held there was a case to answer. It explained to Mr Phillips the possible effect of the case against him and indicated, inter alia, that he might remain silent or adduce evidence. Mr Phillips elected to give evidence on oath. He was permitted to give evidence at length. He detailed what, as he appeared to contend, was the background of the relationship which had existed between Mr Cook and those associated with him and Mr Phillips and/or his family. He said that he had placed his left hand on Mr Cook's left shoulder and his right open hand on Mr Cook's right open arm in the Court but had not exerted any pressure on him. He said that Mr Cook "said under his breath, "Back off'" and that he, Mr Phillips, said to Mr Cook, "You are in deep shit, it's going to be a pleasure to watch you drown in it". He just tapped him some two or three times lightly", "very lightly on the right upper arm'. I am satisfied beyond reasonable doubt that what occurred on the day in question before McLelland CJ in Eq was accurately recounted in the evidence of Mr Cook. Having heard Mr Phillips' account of what took place and observed him in evidence, I prefer the account given by Mr Cook. I am satisfied that, in the circumstances as proved and as conceded by Mr Phillips, what he said was said threateningly or menacingly to Mr Cook. It was said for the purpose of suggesting to Mr Cook that he should desist from the proceeding in question. The words "... or I'll get you" were in my opinion intended to convey a threat to Mr Cook. It was clear that, some little time after what was said by Mr Phillips, it was anticipated that Mr Cook would give evidence in the proceeding before McLelland CJ in Eq. What was said would, in my opinion, be apt to dissuade and influence Mr Cook in relation to the giving of evidence in the proceeding and to interfere with Mr Cook's participation in it. I draw the inference that that was the purpose with which Mr Phillips said what he did. That was an attempt by him to URJ COOK v PHILLIPS (Sheller JA) 5 interfere with the due process of the proceeding and would have prejudiced the proper conduct of it had it had its envisaged effect. Accordingly, I find the charge established. Mr Phillips was invited to address the Court as to the orders which should be made if a finding was made against him. He did so. He was informed that the Court would reserve its decision as to whether a case of contempt had been established and, in the event that it had been, as to whether an order should be made by way of punishment. Mr Phillips undertook to the Court that he would attend the Court on the day on which judgment was to be given. In my opinion it is appropriate that the Court not merely declare that the contempt charged was committed but that it make a proper order against Mr Phillips. The offence was committed in Court while a proceeding was going on. It is proper to mark the seriousness of that aspect of the matter. It is important to make clear, to those who take part in proceedings before the Court and to those who associate themselves with such proceedings, that there must not be any improper interference with the course of justice. I have considered whether it is possible to achieve the effect necessary in this case in a way which does not involve the making of an order against Mr Phillips. I do not think that such a course should be followed. A deliberate threat to a person in the context of a court proceeding directed to deter that person proceeding further is a serious matter. It was proper that Mr Cook bring the matter to the attention of the Court. The matter having been referred to this Court, it was proper that he pursue the proceeding. In doing so, he has been involved in legal costs stated, by way of estimate only, to be of the order of $7,000. I have, in favour of Mr Phillips, had regard to the evidence that he has given and the manner in which he has given it. I take into account that, in what he has done, he does not appear to have been completely balanced. Had he made an attempt to deter Mr Cook from proceeding further in relation to the court proceeding deliberately and with calculation for an ulterior purpose, I would have imposed a more serious penalty upon him, either by way of custodial sentence or fine. In all the circumstances, I propose that the following orders be made: 1. That it be declared that Ian Gregory Phillips is guilty of contempt of court in that on 19 April 1995 in Court 8A in the Supreme Court of New South Wales he said and did the matters referred to in the Statement of Charge. 2. That Ian Gregory Phillips be directed to pay to Phillip Geoffrey Cook on account of the costs incurred by Mr Cook in and relation to the present proceeding the sum of $7,000, such payment to be made on or before 13 October 1995. Sheller JA I have had the benefit of reading the judgments prepared by Kirby ACJ and Mahoney AP. I am satisfied beyond reasonable doubt that what occurred on 19 April 1995 before the Chief Judge in Equity was accurately recounted in the evidence of the claimant, Mr Cook. Insofar as the opponent, Mr Phillip's, evidence was inconsistent with that given by Mr Cook, I prefer Mr Cook's. For the reasons given by Mahoney AP I am satisfied beyond reasonable doubt that the opponent was guilty of contempt of Court in the circumstances described and agree with the orders proposed by Mahoney AP for the reasons he has given. 1. That it be declared that Ian Gregory Phillips is guilty of contempt of court in that on 19 April 1995 in Court 8A in the Supreme Court of New South Wales he said and did the matters referred to in the Statement of Charge; and 6 UNREPORTED JUDGMENTS 2. That Ian Gregory Phillips be directed to pay to Phillip Geoffrey Cook on account of the costs incurred by Mr Cook and in to the present proceeding the sum of $7,000, such payment to be made on or before 13 October 1995. ° COUNSEL: Claimant (PG Cook): DJ Fagan Opponent (IG Phillips): In personSOLICITORS: Claimant (PG Cook): Rosenblum and Partners 15 Opponent (IG Phillips): In person253545