KLEWER v DISTRICT COURT OF NEW SOUTH WALES AND ANOR [1998] NSWCA 125

KLEWER v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and STEIN JJA 18 August 1998, 31 August 1998 [1998] NSWCA 125

CONTEMPT IN THE FACE OF THE COURT — whether use of power to punish for contempt was a sparing use of the power — conviction quashed and acquittal ordered

Lewis v Judge Ogden (1984) 153 CLR 682 Parashuram v King Emperor [1945] AC 264 Balogh v St Albans Crown Court [1975] QB 73 Izoura v R [1953] AC 327 Toner v Attorney-General (unreported, 19 November 1991, Court of Appeal) applied

The appellant was convicted and fined $100 by a Magistrate for driving a motor vehicle in which a child was not restrained by a child restraint. She appealed the conviction and on 23 May 1997, Garling DCJ delivered judgment orally in the presence of the appellant. When his Honour had nearly completed his judgment, the appellant interrupted him. The judge immediately ordered that the appellant be detained. The appellant objected in strong terms and was removed to a police cell. After about two hours, she was brought before the court, given a copy of the transcript of the proceeding, charged with contempt in the face of the court and released on bail. She subsequently made an unsuccessful attempt to obtain the tape recording of the proceedings.

On 5 June 1997 the appellant appeared unrepresented before his Honour. She indicated that she wished to rely on the tape recording. It was, however, not made available to her. She was convicted of contempt and fined $1000.

The appellant sought an order quashing the order of the trial judge.

Held:

The summary power to punish for contempt in the face of the court should be used sparingly and only in serious cases. While some of the words spoken by the appellant after her arrest had been ordered were a serious contempt, they flowed inexorably from her precipitous arrest and it would be inappropriate to punish her for them. The words spoken by the appellant before her arrest could not be said to be a serious contempt and the use of the power in these circumstances was not sparing.