New South Wales Supreme Court CITATION : Prothonotary v Hirata [2000] NSWSC 684 FILE NUMBER(S) : SC 12414/90 HEARING DATE(S) : 12/04/2000 JUDGMENT DATE : 12 April 2000 PARTIES : Prothonotary v Kay Keiko Hirata JUDGMENT OF : James J at 1 COUNSEL : M Sexton SC/K Nomchong - Plaintiff R F Greenwood QC - Defendant SOLICITORS : IV Knight - Plaintiff Jenny Bull & Company - Defendant DECISION : Penalty imposed THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J WEDNESDAY 12 APRIL 2000 12414/99- PROTHONOTARY v KAY KEIKO HIRATA JUDGMENT 1 HIS HONOUR: On 10 March 2000 I found the defendant, Kay Keiko Hirata, guilty of having committed a contempt of court. Yesterday and to-day I have conducted a hearing on what penalty, if any, should be imposed. On 10 March I delivered a judgment on liability and that judgment on liability is to be read with the present judgment. 2 The defendant is a solicitor, who acted as the solicitor instructing defence counsel in the courtroom in a criminal trial held in the District Court in April and May 1999 before her Honour Judge Latham and a jury in courtroom 1.1 in the Downing Centre, Sydney. During the trial the defendant formed the belief that a member of the jury, who I referred to in my judgment of 10 March as Mr S, might be a person named Carl Gibson who she had known many years previously. 3 On Friday 28 May 1999 the jury retired to consider their verdict in the criminal trial. In the afternoon of 28 May the jury, not having reached a verdict, were permitted by her Honour Judge Latham to separate for the weekend. In the late afternoon of 28 May a number of members of the jury and the defendant went separately to the same hotel near the court building. 4 In my judgment of 10 March I found that at the hotel the defendant found herself in close proximity to Mr S; that she immediately recognised Mr S as being the juror at the trial who she thought might be Carl Gibson; that she still believed that he might be Carl Gibson; that she spoke to Mr S; that she claimed, in what she said to Mr S, to know him and obtained confirmation from him that he was a member of the jury; and that, knowing that the person that she was speaking to was a member of the jury, she said that she had something for him, produced an envelope and held the envelope out towards the juror. On the outside of the envelope were written the words, "for Carl Gibson (Juror) courtroom 1.1". There was nothing inside the envelope. The juror did not take hold of the envelope and did not read what was written on the outside of the envelope. At this stage the foreman of the jury, who was also at the hotel, intervened. 5 On 10 March I found that the conduct of the defendant constituted a contempt of court, as having, as a matter of practical reality, a tendency to cause the juror to believe that the envelope related to the trial in which he was serving as a juror and that it contained some kind of threat, reward or inducement to discharge his functions as a juror at the trial in some particular way and also as having, as a matter of practical reality, an objective tendency to provide a ground for discharging the jury, with the consequence that the trial would be aborted. 6 However, I also found that the defendant had no intention of interfering with the due course of justice in the criminal trial. I found that her object was to find out if the juror, Mr S, was Carl Gibson, so that she could renew her acquaintance with him, and that she held out the envelope so that Mr S would be able to read the name, "Carl Gibson", written on the envelope. I found that she had no intention of influencing Mr S in the discharge of his functions as a juror, by causing him to believe that the envelope contained some kind of threat, reward or inducement, and that she had no intention of causing the jury to be discharged. 7 I also found that no interference with the due course of justice had in fact resulted from the defendant's conduct. The only words written on the front of the envelope were the words I have quoted and there was nothing inside the envelope. The only words written on the back of the envelope were "from Monika Ortner", Monika Ortner being an acquaintance of the defendant, who had also known Carl Gibson. At the time of the encounter in the hotel Mr S correctly thought that the defendant's conduct towards him might be due to a mistaken belief on her part that he was someone else. 8 The defendant's conduct did not result in the jury being discharged. On following Monday 31 May Judge Latham was made aware of the defendant's conduct, as a result of some of the jurors reporting the defendant's conduct to a Sheriff's officer. Her Honour did not discharge the jury and the jury returned a verdict of guilty. 9 I was, however, informed during the hearing on penalty that an appeal against conviction has been brought and that one ground of appeal is to the effect that the trial judge erred in not discharging the jury by reason of the defendant's conduct. The appeal against conviction has not yet been heard. 10 I turn to the subjective circumstances of the defendant. The defendant was born in Japan in 1959. She first came to Australia in 1983. For a few months in 1984 she worked at a shop in Sydney at which Carl Gibson and Monika Ortner also worked. Between 1992 and 1995 she did a university law course, obtaining her degree in 1995. In 1997 she did a legal practice course at the Australian National University. Between about July 1998 and May 1999 the defendant worked on a casual basis, instructing barristers in criminal trials. 11 In the proceedings on penalty affidavits by four legal practitioners, three barristers and one solicitor, who had either been instructed by the defendant or who had observed the defendant instructing a barrister in a criminal trial, were admitted into evidence. Each of these practitioners gave evidence to the effect that the defendant had acted in a competent, diligent and professional manner. 12 Part 55 r 13(1) of the Supreme Court Rules provides that the court may punish a contempt of court, where the contemnor is not a corporation, by committal to a correctional centre or a fine or both. It was held by the Court of Appeal in Registrar of the Court of Appeal v Maniam [No.2] (1992) 26 NSWLR 309, that Pt 55 r 13 (1), while declaratory of the court's power to punish for contempt of court, does not exhaustively state the court's powers. 13 Part 55 r 13 (3) provides that the court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the court may approve for good behaviour and performs the terms of the security. 14 In the proceedings on penalty it was not suggested by the Solicitor-General appearing for the plaintiff that the defendant should be committed to a correctional centre. However, it was suggested that the sentencing option of a fine could be appropriate. 15 In the proceedings on penalty the Solicitor-General submitted that the defendant's conduct was objectively serious, having the potential to influence the jury's verdict and having the potential to cause the whole trial to miscarry. 16 I accept that the defendant's conduct was objectively serious. It is vital to the functioning of the jury system that during a jury trial there be no communication between a legal representative of a party and a member of the jury, except in accordance with proper procedures in the courtroom. The defendant's conduct did have the potential to influence the jury's verdict or to cause the trial to miscarry. It is not yet clear that the defendant's conduct has not had the consequence of causing the trial to miscarry. 17 On the other hand, I take into account that the defendant had very little experience as a solicitor and that her conduct was foolish and not ill-intentioned. I have found that she did not intend to interfere with the due course of justice in the criminal trial. I accept that on the evening of 28 May 1999 her judgment was impaired to some extent by the alcohol she had consumed at the hotel and by a dose of antidepressant medication she had taken that morning. 18 I accept that the defendant is a person of good character and that she has acted in a professional manner at other criminal trials. I accept that she is contrite and unlikely to re-offend. 19 I also take into account that the defendant has already suffered, and may in the future suffer, extra-curial punishment for her conduct. The defendant's conduct received some publicity in the media soon after it had occurred and would have been disseminated to some extent within the legal profession, or at least certain sections of it, thus causing the defendant embarrassment and disgrace. 20 The defendant has not worked as a lawyer since 28 May 1999. I was asked by the Solicitor-General to direct the Prothonotary to refer my judgment on liability and the judgment I would be giving on penalty to the Legal Services Commission, which has disciplinary powers in relation to solicitors. I do not propose to give such a direction. However, this would not preclude, and is not intended by me to preclude, the Prothonotary or anyone else, if they see fit, referring the matter to the Legal Services Commission. Accordingly, there remains the possibility of the defendant incurring a further penalty under the Legal Profession Act. 21 An important matter is that the Solicitor-General has, as one would expect, applied for an order that the defendant pay the plaintiff's costs of the proceedings. The plaintiff's solicitor has assessed those costs at a substantial figure, approximating to $35,000.00. 22 The Solicitor-General asked me, in the event of my making an order for costs, myself to assess the amount of the costs. I indicated that this would be a course I would be very reluctant to adopt and would not adopt to-day, having regard to my lack of familiarity with the level of costs currently being charged by practitioners. The assessment of the plaintiff's costs made by the plaintiff's solicitor has not been accepted, or at least has not yet been accepted, by the defendant and it may be that, if an order for costs is made, the figure will subsequently be reduced. 23 However, it is clear that the plaintiff's costs, even if they are reduced, will remain substantial. The plaintiff was represented in the proceedings by the Solicitor-General and by junior counsel. The plaintiff would no doubt maintain that it was appropriate for him to be represented by the Solicitor-General in proceedings which were concerned with the integrity of jury trials in this State. In making this remark I am not to be taken as seeking to bind any person who may subsequently have the task of making an assessment of the plaintiff's costs. 24 Counsel for the defendant submitted that no order for costs should be made or that only a limited order for costs should be made, on the grounds that the defendant had been partly successful in the proceedings. It was pointed out by counsel for the defendant that in the summons by which the proceedings were commenced the plaintiff alleged that the conduct of the defendant constituted a contempt of court, either because her conduct had been intended by her to produce certain results or because her conduct had had an objective tendency to produce those results (including influencing the juror by causing him to believe that the envelope contained a threat, reward or inducement, or causing the jury to be discharged). It was contended by counsel for the defendant that in his final address counsel for the plaintiff had not pressed the first way in which the plaintiff's case had been put in the summons and had confined his submissions to submitting that the conduct of the defendant had had an objective tendency to produce the alleged results. 25 I do not consider that these submissions of counsel for the defendant should be accepted. At the hearing counsel for the defendant submitted that, however the plaintiff's case was put, it was necessary for the plaintiff to establish that the defendant intended to interfere with the administration of justice or at least that the defendant had a blameworthy attitude of mind (see para 89 of my judgment of 10 March). 26 I infer that, even if in the summons the plaintiff had put his case in only the second of the two alternative ways, the proceedings would still have been defended. I am further of the opinion that no significant additional costs were incurred, because the plaintiff's case was put in the alternative in the summons. Even if the plaintiff's case had been confined throughout to the alternative way in which it was put in the summons, it would still have been necessary to investigate in the same degree of detail the events leading up to the evening of 28 May 1999, the events of the evening of 28 May 1999 and the events of 31 May 1999. The outcome of the case was, of course, that the plaintiff succeeded in establishing that the defendant had been guilty of contempt of court. 27 I am, accordingly, of the opinion that I should make an order that the defendant pay the plaintiff's costs of the proceedings. I make this order, appreciating that it is likely to cause hardship to the defendant. However, I do not consider that such hardship or any impecuniosity of the defendant provides a ground for not making such a costs order. 28 Before deciding to impose any fine on the defendant, I do have to take into account what means the defendant would have to pay a fine. An affidavit by the defendant was filed in which she gave evidence about her financial position. The defendant is a director and shareholder, with her parents, in a company which operates a hotel in Japan. She is also the guarantor of a loan made to her parents a number of years ago for the purposes of another business. In her affidavit she maintained that the hotel business produces only a modest profit. The defendant said that she had not been employed since 28 May 1999 and had had to live on her savings. 29 I have concluded that, taking into account the objective seriousness of the offence but also the mitigating circumstances, and particularly the absence of any intention to interfere with the due course of justice, the extra-curial penalty the defendant has already suffered and may yet suffer, and the severe effect the costs order is likely to have on the defendant, I should impose only a small fine and should suspend payment of that fine pursuant to Pt 55 r 13(3). 30 The orders which I make are; in respect of the contempt of court found by the court, the defendant be fined the sum of $2,000 and that the punishment be suspended, upon the condition that the defendant enter into a recognisance to be of good behaviour for two years. 31 I make an order that the defendant pay the plaintiff's costs of the proceedings. 32 I will make an order giving liberty to apply on seven days' notice. It may be that it will be necessary to come back to me with regard to the form of the recognisance or the quantum of the costs. I repeat that I will be reluctant myself to undertake the task of fixing the amount of the costs. ********** Last Modified: 11/06/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.