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. Handley, Sheller and Stein JJA This is an appeal under s201 of the District Court Act 1970 by the appellant, Lucy Klewer, from her conviction for contempt in the face of the court imposed by Garling DCJ on 5 June 1997. The appellant was fined $1,000 and given 6 months to pay. She had been convicted and fined $100 by a Magistrate for driving a motor vehicle in which a child was not restrained by a child restraint. From this conviction she appealed to the District Court. The appellant appeared in person before his Honour and it was agreed that the depositions of the evidence taken before the Local Court be tendered to the court. This included the evidence of the appellant in which she had said that her son, Ryan, was wearing a seat belt. The hearing was completed on 21 May 1997 and his Honour reserved his decision. 2 UNREPORTED JUDGMENTS On 23 May 1997 his Honour delivered judgment orally in the presence of the appellant. He had almost completed giving his reasons for judgment, which included comments highly critical of the appellant's credit, when she interrupted him. We have listened to the tape recording of the incident, tendered by Mr Lakatos, counsel for the Attorney-General. In interrupting his Honour, the appellant said: Excuse me Sir, I've got to go. I've had enough of you. My child was restrained and I think something's got to be done... At this point, his Honour said: Detain her please - detain her - you will be arrested shortly. The tape makes it clear that there were further words spoken by the appellant. The words '... about you' followed the judge's order that she be detained, and cannot justify her arrest. When asked by the appellant why she was being arrested, the judge said 'for contempt of court'. From then on the incident escalated with his Honour indicating that he would consider whether the transcript should be referred to the Director of Public Prosecutions to consider perjury proceedings. In our belief, bearing in mind what the appellant had said in interrupting his Honour's judgment, it was an over-reaction to order her arrest. It was also an over-reaction to raise the question of perjury, particularly since the appellant had not given evidence before him. The appellant retaliated in terms clearly insulting of the judge. The confrontation deteriorated and ended in his Honour having a Correctional Services Officer place handcuffs on the appellant and remove her to a police cell, where she remained for around two hours. Her young son, who was with her at the court, was placed in the temporary care of the Department of Community Services. Later in the day the appellant was brought before the court and charged with contempt. His Honour particularised the charge thus: The contempt relates to your words and actions which interfered with the course of justice. I have handed to you a copy of the transcript taken of what you said, which will form the basis of the charge. The charge was adjourned for a week and the appellant released on bail. On 5 June 1997 she appeared unrepresented. Again, the exchanges which took place between the appellant and the bench are unedifying. However, one thing is clear. The appellant believed that his Honour had said that she was to be placed in custody for perjury. The appellant had attempted, between her arrest and 5 June, to obtain the tape recording of the proceeding. Apparently the judge had not permitted this, although the court is unaware of any reason therefor. His Honour told the appellant that what he had said about perjury was contained in the transcript already made available to her. During the course of the proceedings on 5 June his Honour reformulated the charge as follows: The contempt is by words and actions in the face of the Court which interfered with the course of justice and the administration of justice. A copy of the transcript containing the words spoken has been handed to you on the last occasion. The actions which are known to you include the disrupting of the Court which was in the middle of giving reasons for judgment, talking over the judge, speaking loudly, struggling and generally disrupting the Court and includes also the words spoken. WREWER v DISTRICT COURT OF NEW SOUTH WALES (Handley, Sheller and Stein JJAB Upon communicating the charge the judge immediately asked the appellant if there was anything she wished to say as to whether or not she should be convicted. The appellant asserted that she was not guilty of contempt. The appellant then clearly indicated that, in her defence, she wanted to rely on the tape recording of the evidence. This was brushed aside by his Honour who proceeded to give judgment, finding the appellant guilty of contempt. He referred to the words of the appellant when she had interrupted his judgment. He also referred to other words spoken by the appellant after the interruption and to her 'behaviour' set out in the formulation of the charge quoted above. He added: As I continued to try and deliver my reasons for judgment I was continually interrupted, the Court was disrupted and a number of derogatory comments were made the worst of them being was that I was supporting a lie of an officer because, as she said, "you are on their side." Ultimately the appellant was convicted of contempt and fined the sum of $1000. The summary power to punish for contempt in the face of the court should be used sparingly and only in serious cases.! What the appellant said when she interrupted his Honour's delivery of judgment before he ordered her arrest for contempt could not be said to be a serious contempt. Apart from the disruption caused to the delivery of the judgment, the only possible contempt is the statement 'I've had enough of you.' This may be said to be a technical contempt in the face of the court, but it did not warrant her immediate arrest. The judge's use of this power, without attempting to restore order by other means, such as asking her to be quiet or suggest that she leave the court, was not a sparing use of a power to be exercised with great caution. There is no doubt that some of the words spoken by the appellant after her arrest had been ordered were a serious contempt, but they flowed inexorably from her precipitous arrest at his Honour's order. In these circumstances, it would be inappropriate to punish the appellant for her later contempts. Accordingly, the conviction should be quashed and the appellant be acquitted on the charge of contempt. 1. Order that the summons dated 21 February 1998 stand as a notice of appeal. 2. Extend the time for filing a notice of appeal from the conviction of contempt on 5 June 1997 to 21 February 1998. 3. Further compliance with the rules dispensed with. 4. Appeal upheld. 5. Conviction quashed and judgment of acquittal entered. The applicant appeared in person Counsel for the Intervenor: P I Lakatos for Attorney-General Solicitors for the Intervenor: I V Knight (Crown Solicitor) Counsel for the respondent: Submitting 1. Lewis v Judge Ogden (1984) 153 CLR 682 at 693, Parashuram v King Emperor [1945] AC 264 at 270, Balogh v St Albans Crown Court [1975] QB 73 at 85, Izoura v R [1953] AC 327 at 336 and Toner v Attorney General (unreported, 19 November 1991, Court of Appeal at 17) 4 UNREPORTED JUDGMENTS Solicitors for the respondent: I V Knight (Crown Solicitor)