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  •   Notable Unreported Decision

Attorney-General v Mathews

 

[2020] QSC 258

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Mathews [2020] QSC 258

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Applicant)

v

RUSSELL GORDON HAIG MATHEWS

(Respondent)

FILE NO/S:

BS 4101/2019

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2020

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. The respondent pay the applicant’s costs of the proceeding fixed in the sum of $5,000.
CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – SCANDALISING COURTS AND JUDGES  – CRITICISM OF JUDGE OR COURT DECISION – where the respondent is charged  with contempt by scandalising the court – where the respondent published and displayed two signs at his house that stated a Court of Appeal judge and the Court of Appeal are corrupt and that a magistrate is likely corrupt – where the applicant submitted that the publication and display of each sign was an offence on the ground that the sign gives rise to a real risk of undermining public confidence in the impartiality and honesty of the judicial officer and court concerned – whether there is a real risk as a matter of practical reality that the statements have a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court  – whether the element of mens rea is required – where the court found that the publication and display of the signs constitute contempt by scandalising the court – where the court found that the mental element of mens rea is required and that the respondent intends to undermine public confidence in the administration of justice or is subjectively reckless as to whether he did or not

COURTS AND JUDGES – CONTEMPT – INJUNCTIONS TO RESTRAIN CONTEMPT – where the applicant applied for orders that the respondent be convicted and fined – where the applicant applied also for an injunction that the respondent remove the signs and not erect any sign that asserts any court or judicial officer of the State of Queensland is or is likely to be corrupt – where the proceeding is a civil proceeding in structure but the application seeks relief by way of punishment for a criminal offence – where the court can punish the respondent by making an order that may be made under the Penalties and Sentences Act 1992 (Qld) – where the court has power in its civil jurisdiction to grant an injunction to restrain a contempt – where an application for an injunction to restrain a threatened contempt is not an application brought in a summary way to convict and punish for an offence of contempt by scandalising the court – where the standard of proof on an application for an injunction is on the balance of probabilities – where the standard of proof on the proceeding for the criminal offence is beyond reasonable doubt – where the court found that the different natures of the two proceedings means that it is inappropriate to join a civil claim for an injunction to a proceeding for punishment for a criminal offence of contempt by scandalising the court – where the court required the applicant to elect between injunctive relief or proceeding by way of punishment for the offence of contempt by scandalising the court

Civil Proceedings Act 2011 (Qld), s 15

Constitution of Queensland Act 2000 (Qld), s 58

Contempt of Court Act 2019 (NZ), s 26

Crime and Corruption Act 2001 (Qld), s 15

Crime and Corruption and Other Legislation Act 2018 (Qld), s 5

Crime and Courts Act 2013 (UK), s 33

Criminal Code Act 1899 (Qld), ss 5 and 8

Judiciary Act 1903 (Cth), s 78B

Magistrate’s Courts Act 1921 (Qld), s 50

Penalties and Sentences Act 1992 (Qld), s 44, s 45, s 46

Uniform Civil Procedure Rules 1999 (Qld), Ch 20 , Pt 7, r 681,  r 687, r 930, r 932

Attorney-General (NSW) v Dean (1990) 20 NSWLR 650, cited

Attorney-General for NSW v Mundey [1972] 2 NSWLR 887, cited

Attorney-General v Di Carlo [2017] QSC 171, cited

Attorney-General v Lovitt QC [2003] QSC 279, discussed

Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518, cited

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and others (1999) 167 ALR 303, cited

Board of Examiners v XY [2006] VSCA 190, cited

Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 32 ALR 328, cited

Dhooharika v The Director of Public Prosecutions [2015] AC 875, followed

Director of Public Prosecutions v The Belize Times Press Ltd and anor [1988] LRC (Const) 581, cited

Director-General Department of Land and Water Conservation v Ramke [1999] NSWLEC 22, cited

Dowling v Prothonotory of the Supreme Court of New South Wales (2018) 99 NSWLR 229, cited

Edwards v Stocks (2009) 17 Tas R 454, cited

Foley v Herald-Sun TV Pty Ltd [1981] VR 315

Gallagher v Durack (1983) 152 CLR 238, discussed

Grassby v R (1989) 168 CLR 1, cited

Hoser v R; ex parte Attorney-General for the State of Victoria [2003] VSCA 194, discussed

Knight v Clifton [1971] Ch 700, cited

Machado v Underwood [2016] SASCFC 123, cited

Mahaffy v Mahaffy (2018) 97 NSWLR 119, cited

Mathews v Commissioner of Police [2015] QCA 284, cited

Mathews v Cooper & Ors [2017] QCA 322, cited

McIntyre v Perkes (1988) 15 NSWLR 417, cited

Morasse v Nadeau-Dubois [2016] 2 SCR 232, cited

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited

Nationwide News v Wills (1992) 177 CLR 1, discussed

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173, cited

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434, discussed

R v Gaston [1971] 1 All ER 128n, cited

R v Kopyto (1987) 62 OR (2d) 449, discussed

Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48, cited

Sunibrite Products (Aust) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73, cited

Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, cited

Walker v Harwood [2017] NSWCA 228, cited

Wotton v State of Queensland (2012) 246 CLR 1, cited

COUNSEL:

S Keim SC with G Sammon for the Applicant

The Respondent did not appear

SOLICITORS:

GR Cooper Crown Solicitor for the Applicant

Jackson J:

  1. [1]
    This is an application for contempt of court.  The contempt alleged is of the variety known as scandalising the court.  The conduct alleged is that the respondent published and displayed two signs at his house at 119 Brisbane Road, Booval.  One sign (“CA and Morrison sign”) stated:

“Court of Appeal

&

Judge Morrison

are CORRUPT

HaigReport.com/CAM”

  1. [2]
    The other sign (“MacCallum sign”) stated:

“Magistrate Donna MacCallum

is likely CORRUPT

HaigReport.com/MC” 

  1. [3]
    The applicant alleges publication and display of each sign was an offence on the ground that the sign scandalises the relevant judicial officer or court and gives rise to a real risk of undermining public confidence in the administration of justice and lessening public confidence in the impartiality and honesty of the judicial officer and court concerned.
  2. [4]
    For each alleged offence the orders sought are that the respondent be (convicted and) ordered to pay a fine. 
  3. [5]
    Further, the applicant applied for an injunction that the respondent remove both signs within seven days and, if he fails to do so, an order that the sheriff of the Supreme Court is authorised to enter his premises to remove and dispose of the signs as the sheriff sees fit.  Further, the applicant applied for an injunction restraining the respondent from erecting any sign that asserts any court or judicial officer of the State of Queensland is or is likely to be corrupt. 

Facts

  1. [6]
    On 14 January 2019, a title search was conducted of the land located at 119 Brisbane Road, Booval.  The search showed that the respondent was the registered owner of the land.
  2. [7]
    On 21 January 2019, a senior registrar of the Ipswich Magistrates and District Court Registry took a photograph of the two signs in question.  Their content is accurately described above.  They appeared among a number of signs erected inside and above the fence in front of the respondent’s house as well as on the house that were visible to passing road traffic. 
  3. [8]
    Between 21 January 2019 and 13 March 2019, both signs were maintained in that position.  After that, the MacCallum sign was taken down.
  4. [9]
    On 17 January 2019, the director of Courts Innovations Program, Magistrates Courts Service as acting principal registrar and executive director of the Magistrates Courts Service wrote to the respondent about the sign in respect of MacCallum SM.  The letter requested the respondent to immediately remove that sign and advised that if he did not, it was possible the matter may be referred to the Attorney-General who had the authority to institute a proceeding against him for contempt of court.
  5. [10]
    On 2 February 2019, the respondent replied to the acting principal registrar by a long and rambling email denying, inter alia, that he had a case to answer because he “had not stated that [MacCallum SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.”
  6. [11]
    On 31 January 2019, the executive director of the Supreme, District and Land Court service wrote to the respondent about the sign in respect of the Court of Appeal and Morrison JA.  The letter requested the respondent to remove the sign forthwith and confirm that he had done so and advised that if the respondent failed promptly to remove the sign, consideration would be given to whether proceedings should be brought against him for contempt of court.
  7. [12]
    On 8 February 2019, the respondent replied to the executive director by email attempting to justify his allegations of corruption against the Court of Appeal and Morrison JA.
  8. [13]
    On 7 April 2019, the CA and Morrison sign was still displayed but the MacCallum sign was not displayed. 
  9. [14]
    On 16 April 2019, this application was started by originating application.
  10. [15]
    As at the date of the hearing of this application neither of the signs was displayed.

Applicant’s submissions

  1. [16]
    The applicant submits that the facts in evidence prove that:
    1. (a)
      the respondent published and displayed the signs;  
    2. (b)
      the MacCallum sign was published and displayed from 21 January 2019 to 13 March 2019; and
    3. (c)
      the CA and Morrison sign was published and displayed from 21 January 2019 to 7 April 2019.
  2. [17]
    The applicant further submits that the responsibility of the respondent for the publication and display of the signs can be inferred from his ownership of the land and:
    1. (a)
      in respect of the CA and Morrison sign, the respondent’s statement in his email to the executive director that:

“The definitely amorphous manner in which Morrison [JA] dismissed my valid claims properly pleaded is a clear indication of possible corruption… the fact that two other judges [sic] of the Court of Appeal agreed with him indicates that the Court of Appeal is corrupt… All statements on my sheets of corflute are political statements about Queensland and Australian government and politics…I have political publications on my property… My political publications are exposing corruption in Qld.”

  1. (b)
    in respect of the MacCallum sign, the respondent’s statement in his email to the acting principal registrar that:

“I have not stated that MacCallum [SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.”

  1. [18]
    The applicant submits that each of the corruption allegations made in the signs is a contempt of court because it was a direct attack on the integrity of the named judicial officer and, in respect of the CA and Morrison sign, the judges who constituted the Court of Appeal.
  2. [19]
    The applicant submits that the statements were contemptuous as: baseless attacks on the integrity or impartiality of the court or a judge; comments that tend to induce a lack of confidence in the ordered and fearless administration of justice; and unjustified allegations that a judge had acted in bad faith or had failed to act with the impartiality required of a judicial officer.  The applicant submits that the statements were calculated to impair public confidence in the named judicial officers and the Court of Appeal and thereby diminish their authority and there was a real risk that the statements so publicly visible would undermine the public confidence in the administration of justice. 
  3. [20]
    The applicant submits that the statements were not governmental or political speech which commented, in good faith, on matters of public importance, including the administration of justice that were merely mistaken or wrongheaded, even if outspoken.

The offence of contempt by scandalising the court

  1. [21]
    Contempt of court by scandalising the court is a criminal contempt as it is not concerned with non-compliance with an order of the court but is directed against interfering with the administration of justice.[1]  It is necessary to further identify the legal basis.
  2. [22]
    Criminal contempt of court is a species of criminal offence, but it is unlike other offences in some ways.  It is prosecuted in a summary way before this court under the rules of court,[2] although it remains a criminal offence at common law in this jurisdiction.  Its continuing operation as a criminal offence at common law follows from the fact that the authority of courts of record to punish a person summarily for an offence commonly known as “contempt of court” was excepted in 1899 from the exclusive operation of the Criminal Code and other statutes in respect of indictable offences.[3] 
  3. [23]
    The offence of contempt by scandalising the court is rarely prosecuted[4] but it has been reconsidered in recent years.  For example, following a recommendation of the Law Commission of England and Wales in 2012,[5] the parliament of the United Kingdom of Great Britain repealed the common law offence of contempt by scandalising the court altogether.[6]  Other jurisdictions have moved to abolish the common law offence but replace it with a narrower statutory offence.[7]  In a recent speech, a member of this court considered the operation of the principles affecting contempt by scandalising the court in detail.[8] 
  4. [24]
    Although brought by way of summary procedure, and although accordingly the proceeding is a civil proceeding in structure, the application is nevertheless a proceeding that seeks relief by way of (conviction and) punishment for a criminal offence.  The applicant submits that the punishment should be the imposition of a fine in respect of each offence.  The rules of court specifically deal with the power to impose a punishment including, if the respondent is an individual, that the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld).[9] 
  5. [25]
    However, the orders that may be made by way of conviction and punishment for an offence of contempt by scandalising the court, including the powers under the Penalties and Sentences Act, do not include a power to grant an injunction restraining a future offence or an order authorising the sheriff to enter the respondent’s land to remove and dispose of the signs.
  6. [26]
    Although there is no power to do so as an order upon conviction for an offence of contempt by scandalising the court, the court has power in its civil jurisdiction to grant an injunction to restrain a contempt and to prevent its continuation or threatened repetition, including a mandatory or prohibitory injunction.  Gibbs CJ once expressed the point in this way:

“A superior court which has power to punish contempts, and which also has power to issue injunctions, may grant an injunction to restrain a threatened contempt.”[10] 

  1. [27]
    But, an application for an injunction is a civil proceeding, properly so-called, not a hybrid proceeding for a criminal offence. The standard of proof on an application for an injunction is the civil standard, namely on the balance of probabilities.  The standard of proof on the hybrid proceeding for the criminal offence of contempt by scandalising the court is the criminal standard, namely beyond reasonable doubt.
  2. [28]
    It follows from the different natures of the two proceedings that in a proceeding for punishment for a criminal offence of contempt by scandalising the court it is inappropriate to join a civil claim for an injunction, as two intermediate appellate courts in other jurisdictions have decided.[11]
  3. [29]
    Accordingly, at the commencement of the hearing, the court required the applicant to elect between the injunctive relief applied for and proceeding by way of punishment for the offence of contempt by scandalising the court.  The applicant elected to proceed upon the application for punishment for the criminal offence.
  4. [30]
    In part, the proceeding is brought in this court in relation to an alleged contempt by scandalising a magistrate.  The Magistrates Court has statutory power to deal with all contempts,[12] but has no power to grant an injunction in respect of a threatened contempt. However, this court has “all jurisdiction necessary for the administration of justice in Queensland”,[13] is the “superior court of record in Queensland and the Supreme Court general jurisdiction in and for the State” and “has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity, and otherwise.”[14]  As such, it retains jurisdiction over contempts committed against inferior courts as an aspect of its “traditional general supervisory function”.[15]
  5. [31]
    The primary question is whether the respondent’s statements, that a court and a judicial officer “are corrupt” and another judicial officer “is likely corrupt”, scandalise the court or the judicial officer in a way that amounts to the offence.  Summarising, in my view, two relevant considerations arise: first, is there a real risk as a matter of practical reality[16] that the impugned conduct has a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court; second, is an element of mens rea required to constitute the offence and, if so, is it proved?
  6. [32]
    The respondent asserted that his publications are protected by the constitutional implied freedom of communications on governmental and political matters[17] but it was decided at an interlocutory stage of this proceeding that the contention did not involve a matter under the Constitution or involving its interpretation[18] because the question was foreclosed by binding or persuasive authority against it.[19]  Accordingly, I do not reconsider it.

Risk of undermining the confidence of the public

  1. [33]
    By the doctrine of precedent, this Court must follow the judgments of the High Court that constitute binding authority as to the elements of an offence of contempt by scandalising the court or a judicial officer and it should also pay closest attention to statements of persuasive authority of that court.  Two cases are most relevant.[20] 
  2. [34]
    The more recent is Gallagher v Durack.[21] In that case, a well-known trade unionist was sentenced to two months’ imprisonment by a judge of the Federal Court for contempt by scandalising the court.  An appeal against the sentence was allowed by the Full Court.  When asked by the press for his reaction to the Full Court’s decision the trade unionist said, inter alia, that he believed the main reason for the court changing its mind was the actions of rank and file of the union in demonstrating in walking off jobs.  In further proceedings in the Federal Court that was held to be a contempt by scandalising the court.  In dismissing an application for special leave to appeal,[22] the majority of the High Court said this:

“The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Belle v Stewart and R v Fletcher; Ex parte Kisch before R v Dunbabin; Ex parte Williams was decided, and the judgment of Rich J in the last mentioned case is consistent with what had been said in the earlier decisions.  The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances appear to come in conflict.  One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrongheaded.  The other principle is that ‘it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon courts of  justice, which, if continued, are likely to impair their authority’ … The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts of judges.  However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment ‘is applied only where the court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable’.” (footnotes omitted)[23]

  1. [35]
    Second, in R v Dunbabin; Ex parte Williams,[24] Rich J, with whom four other members of the court agreed, said:

“Any matter is a contempt which has a tendency to deflect the court from a strict and unhesitating application of the letter of the law, or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the courts’ judgments, because the matter published aims at lowering the authority of the court as a whole or that of its Judges, and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.”[25]

Allegations of corruption

  1. [36]
    Having regard to those statements of principle, in my view, regard should next be given to the cases of closest factual comparison and highest persuasive authority.  Among them, there are two appellate court decisions that are of assistance. 
  2. [37]
    First, in Hoser v R; Ex parte Attorney-General for the State of Victoria,[26] the appellant published two books containing a number of statements about several judicial officers.  One of them concerned a District Court judge who was the trial judge in a criminal prosecution brought against the appellant for perjury.  The appellant  said in the books:

“My initial judgments of [the judge] as corrupt and dishonest were further proven during the course of the trial and its aftermath, much of which will be explained in the material that follows.”

  1. [38]
    And further:

“Of course [a witness] had been doing effectively what [the judge] had told him.  It was a classic case of a bent judge improperly helping a prosecution witness”

  1. [39]
    The appellant was convicted of contempt by scandalising the court.  On appeal, the Court of Appeal of the Supreme Court of Victoria upheld the conviction.  The trial judge had considered that the statements had a tendency to undermine the confidence of the public in the administration of justice and to lower the authority of the courts.  The Court of Appeal observed that in Nationwide News v Wills,[27] Mason CJ described scandalising the court as consisting of any act done or writing published which is calculated to bring a court or a judge of the court into contempt and to lower his or her authority,[28] and upheld the approach of the trial judge in the finding that the requirements for contempt by scandalising the court had been proved beyond reasonable doubt.[29]  In other words, the allegation that the District Court judge was “corrupt and dishonest” and “bent” constituted contempt by scandalising the court. 
  2. [40]
    Second, in R v Kopyto,[30] the appellant was a lawyer acting in a suit brought by his client against police officers which was dismissed by a judge in a small claims court.  Following the decision, the appellant called a reporter and gave him a statement, part of which was included in an article published in a newspaper the following day.  The appellant stated:

“This decision is a mockery of justice.  It stinks to high hell.  It says it is okay to break the law and you are immune so long as someone above you said to do it.

[The client] and I have lost faith in the judicial system to render justice.

We’re wondering what is the point of appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police.

The courts and the [Royal Canadian Mounted Police] are sticking so close together you’d think they were put together with Krazy Glue.”

  1. [41]
    The substantial question which decided the appeal was whether the offence of contempt by scandalising the court was inconsistent with and abrogated by the Canadian Charter of Rights and Freedoms.  It was held by a majority of the court that it was.  Nevertheless, the reasoning of all members of the court, except two, proceeded on the footing that the offence of contempt by scandalising the court was otherwise established.
  2. [42]
    Among the majority, Goodman JA carefully analysed the text and meaning of the appellant’s statements, saying:

“In my opinion, the circumstances in which the remarks were made and the context in which the word was used indicate that the word “warp” was used to allege bias on the part of the courts and not dishonesty.  The dividing line between what is an assertion of fact and what is an expression of opinion is often not too clear.  An opinion is a belief based on grounds short of proof.  The grounds usually are facts which may or may not be accurate and indeed the so-called facts which form the grounds for the basis of an opinion may be, in reality, the opinion of some other person presented as a fact.  In the present case counsel for the appellant conceded that the remarks as an assertion of fact could not be proven to be true.  In my view the proper characterization [sic] of the remarks is that they represent no more than an expression of opinion on the part of the appellant although stated in the form of an assertion of fact…

As previously indicated, I am of the opinion that the expression by the appellant of his opinion that the courts of this country are biased in favour of the police as opposed to other members of the public, was intended or was likely to bring the administration of justice into disrepute and, accordingly, constituted the offence of contempt of court by scandalising the court …”[31]

  1. [43]
    The dissentient, Dubin JA (with whom Brooke JA agreed), held that the offence of contempt of court by scandalising the court, not being an offence of absolute liability, requires a mens rea analogous to that stated in Boucher v R as follows:

“To briefly summarize [sic] my conclusions, I am of the opinion that an intention to bring the administration of justice into hatred or contempt or to excite disaffection against it is a seditious intention; that an intention in good faith to point out errors or defects in the administration of justice is not a seditious intention and that is the right of every citizen to criticize [sic] freely and vigorously the proceedings of the Courts of justice, the decisions of the judges, and the verdicts of juries. 

I think that in the case at bar, and in the case of every charge of publishing a seditious libel, where the gravamen of the charge is the alleged intention to bring the administration of justice into hatred and contempt, the question … is whether the real intention of the person charged was to vilify the administration of justice, destroy public confidence therein and to bring it into contempt; or whether the publication, however vigorously worded, was honestly intended to purify the administration of justice by pointing out, with a view to their remedy, errors or defects which the accused honestly believed to exist.”[32]

Role of mens rea

  1. [44]
    There are other cases that conclude that no element of mens rea is required for an offence of contempt by scandalising the court.[33]  Against that view, the question was considered in detail by the Privy Council in 2014 in Dhooharika v The Director of Public Prosecutions.[34]  The relevant passage is lengthy but should be set out in its entirety to explain the conclusion arrived at:

“What then of the mens rea? ... It was originally said by Wilmot J that ‘it is the intention which, in all cases, constitutes the offence: ‘actus non fit reum, nisi mens sit rea’. He did not however describe the mens rea he had in mind.

As Arlidge, Eady and Smith [on Contempt, 4th ed,] observe…, the decision of the Divisional Court in R v Editor of the New Statesman Ex p DPP … proceeded on the basis that mens rea was not necessary. Lord Hewart CJ said… that the article complained of constituted a contempt:

‘It imputed unfairness and lack of impartiality to a Judge in the discharge of his judicial duties. The gravamen of the offence was that by lowering his authority it interfered with the performance of his judicial duties.’

Immediately thereafter he added:

‘If they had come to the conclusion that that was intended by the writer, who was also the editor, the only proper course would have been to commit him to prison for contempt.”

As Arlidge, Eady and Smith observe, that suggests that no intention was required to establish liability but it might affect the appropriate penalty. They also observe, correctly, that that decision has been widely influential in Commonwealth decisions….

By contrast Arlidge, Eady and Smith say that the issue of mens rea needs to be addressed in the light of the later decisions. They refer to Attorney General v News Group Newspapers Plc, Attorney General v Sport Newspapers Ltd and Attorney General v Newspaper Publishing Plc. In the opinion of the Board these decisions, although not conclusive, give some support for the conclusion that the prosecution must prove that the defendant intended to interfere with the administration of justice.

The editors of Arlidge, Eady and Smith, writing of course before the recent statute, conclude… that in England and Wales it would probably be necessary to prove an intention to interfere with the administration of justice. In support of that proposition they direct the reader to the remarks of Lord Atkin in Ambard…, where he says:

‘provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.’

The Board agrees. As Lord Steyn made clear in Ahnee, if the defendant acts in good faith, he is not liable. Since the court is here concerned with a criminal offence, the burden must be on the prosecution to establish the relevant facts beyond reasonable doubt. There can be no legal burden on the defendant.  Thus, at any rate once the defendant asserts that he acted in good faith, the prosecution must establish that he acted in bad faith. If the prosecution establish that he either intended to undermine public confidence in the administration of justice or was subjectively reckless as to whether he did or not, that would in the opinion of the Board, be evidence of bad faith. It is perhaps for this reason that Lord Steyn expressed the view that the defendant had to act otherwise than in good faith, that is in bad faith, and that there was no further element of mens rea required.

The Board has considered whether a defendant might be guilty on the basis of some more general bad faith than is comprised in the intention or recklessness referred to above. While the Board would not entirely rule it out, it appears to the Board that, once it is accepted that, as Lord Steyn put it in the context of actus reus, there must be a real risk of undermining public confidence in the administration of justice, the relevant mens rea should be related to the creation of that risk and that, while it makes sense to hold that the defendant commits the offence if he intends to undermine public confidence in the administration of justice or is subjectively reckless as to whether he did so, it is not easy to see that any other, more general, state of mind would amount to relevant bad faith sufficient to support a conviction.”[35] (citations omitted) (emphasis added)

  1. [45]
    In my view, that reasoning is persuasive and does much to clarify what has previously been an uncertain question as to the role of mens rea as an element of the common law offence of contempt by scandalising the court.[36]

Application to the present case

  1. [46]
    Applying the relevant principles, and having regard to cases where allegations of corruption have been considered, there is no doubt that the statements made by the respondent in the present case are capable of constituting contempt by scandalising the court.
  2. [47]
    But some questions remain to be considered before it is established that the respondent’s conduct was contempt by scandalising the court.
  3. [48]
    First, although it may seem surprising, there may be a question as to the meaning of an allegation that a court or judicial officer is corrupt.  Any ordinary dictionary meaning of that adjective in this context would denote a court or judicial officer who is perverted from fidelity.[37]  But idiomatic usage has broken down and widened the ordinary meaning of the word “corrupt”, in some contexts.  One example is the use of the word to describe damaged computer files.  Another is the extent and contextual use of the adjective in modern political discourse, particularly in the United States of America, that is regularly reported in the media.  There are other possible examples.[38]
  4. [49]
    Even so, in my view, in the present context, the use of “are CORRUPT” and “is likely CORRUPT” on the signs, objectively viewed, was an attack on the integrity or impartiality of the court and judges concerned.
  5. [50]
    As to the element of mens rea or bad faith, there is also a question to be decided, that involves a number of facts.  It is necessary at this point to consider each of the signs separately, beginning with the CA and Morrison sign.
  6. [51]
    The first question of fact is what the respondent intended to connote by his use of “are CORRUPT” and “is likely CORRUPT”.
  7. [52]
    The respondent’s explanation of the CA and Morrison sign appears in the respondent’s email to the executive director in response to the request that he remove the CA and Morrison sign.  I will not set it out in full, but the gravamen of why Morrison JA attracted the respondent’s ire was, in the respondent’s own words, that:

“The definitely amorphous manner in which Morrison [JA] dismissed my valid claims properly pleaded[39] is a clear indication of possible corruption.  When one considers the nature of those claims, the indication is amplified.”

  1. [53]
    As to the Court of Appeal otherwise, the source of the respondent’s ire is also explained by the respondent in his own words:

“The fact that the two other judges… of the Court of Appeal agreed with hims [sic] indicates that the Court of Appeal is corrupt.”

  1. [54]
    In other words, the respondent was moved to call “corrupt” a court or judge who decided a case against him.  It must be observed that anyone with “the good sense of the public” who read the respondent’s justification in that way would not entertain a real risk as a matter of practical reality that the respondent’s statements have a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court.  Both the court and the public are well attuned to the inability of some disappointed litigants to accept an adverse decision and that such litigants may complain bitterly or viciously about the decision on baseless grounds.
  2. [55]
    Second, regrettably, it is necessary to say something more about the delusional aspect of the respondent’s beliefs and their role in his conduct.  This is not done to disparage him and it would be better if any mention of it could be avoided, but in the circumstances of the case something must be said, although it should be kept to a minimum.  Among other things, the respondent accused Morrison JA of being a “mate” of a named senior counsel, because they appeared in a long case as counsel together more than a decade ago, and therefore to be an “Order of Malta Mafia Member”, meaning what the respondent called the “secretive clandestine, corrupt catholic Order of Malta Mafia” that “control[s]… the Queensland Government”.  He accused the executive director, for writing to request that he remove the CA and Morrison sign, of having a “possible… clandestine agenda [in] furtherance and expansion of catholicism.”
  3. [56]
    Again, it must be observed that anyone “with the good sense of the public” who read the respondent’s justification in that regard would not entertain a real risk as a matter of practical reality that his statements have a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court.
  4. [57]
    The explanation of the MacCallum sign appears in the respondent’s email to the acting principal registrar of 2 February 2019 in response to the request that he remove the MacCallum sign.  The respondent said, inter alia:

“I have sent a copy of this prima facie evidence that this [named senior counsel] is corrupt together with a number of others to [MacCallum SM], with a request for her to advise me whether she acts or fails to act.  She has not advised suggesting that she is unconcerned by this prima facie evidence.  That increases the likelihood that she is corrupt.”

  1. [58]
    That is to say, the particular source of the respondent’s ire against MacCallum SM was that she did not act upon the respondent’s accusations against a lawyer and that is enough in his view to say that she “is likely CORRUPT”.
  2. [59]
    It is unnecessary to set out those parts of the respondent’s email to the acting principal registrar that also contained delusional statements of the kind previously set out from his response to the executive director in relation to the CA and Morrison sign, other than to say that similar statements were made in respect of the MacCallum sign.
  3. [60]
    It should also be recorded in these reasons that the respondent suffered from other disabilities.  One of them is that he suffers from an acquired brain injury from a head injury or head injuries suffered long ago.  There is some medical evidence as to the extent or effects of his injury or injuries in that regard.  There seems little reason to doubt that the respondent also suffered from one or more psychological disorders that may or may not be associated with his acquired brain injury.  He was obviously delusional as to some of his beliefs as to the basis of the corruption he asserted against, inter alia, the courts and judicial officers.  These points go in reduction of the responsibility that he might otherwise bear for his assertions.  However, the respondent did not raise any question of mental health by way of defence so it is not appropriate to take them further.
  4. [61]
    Overall, in my view, the evidence does prove that in publishing and displaying each sign the respondent intended to undermine public confidence in the administration of justice or was subjectively reckless as to whether he did or not.  If a mental element or mens rea or bad faith of that kind is required, and in my view it is, the evidence supports an inferential finding that the respondent had such an intention.  The same evidence supports the conclusion that the applicant has disproved both that the respondent acted in good faith and that the statements were made by way of fair comment. 
  5. [62]
    Lastly, if truth is a defence, in my view, the evidence does not fairly raise an issue that requires the possible defence to be considered. 

Conclusions on criminal responsibility

  1. [63]
    The powers to punish for an offence of contempt by scandalising the court or to grant an injunction to restrain the commission of such an offence are intended only to protect the administration of justice. The offence of contempt by scandalising the court does not exist to vindicate any hurt feelings and it is not to the point that any judge may feel unjustifiably slighted by an accusation.
  2. [64]
    Having regard to the unlikelihood that anyone who knows of the respondent’s reasons for displaying the signs would take his complaints and statements seriously, it must be thought unfortunate that a proceeding was necessary in this case.  The reason why it is not unjustified, in my view, is that the signs did not explain those reasons and remained in clear view to all passers-by for a period of months.
  3. [65]
    In the result, in my view, the applicant has proved, beyond reasonable doubt, that the respondent is responsible for the publication and display of the signs and the statements in them, and that publishing and displaying the statements in them constituted contempt by scandalising the court. 
  4. [66]
    Accordingly, I find the respondent guilty of the offence of contempt by scandalising the court or a judge in publishing and displaying the CA and Morrison sign.
  5. [67]
    I also find the respondent guilty of the offence of contempt by scandalising the court or a judge in publishing and displaying the MacCallum sign.

Orders

  1. [68]
    The applicant sought the imposition of a fine as punishment for each of the contempts.  In respect of the CA and Morrison sign, the applicant submitted that a fine of $3,000 should be imposed.  In respect of the MacCallum sign the applicant submitted that a fine of $2,000 should be imposed.
  2. [69]
    If the court decides that a respondent who is an individual has committed a contempt, it has power to punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld).  Under that Act, a court may impose a fine whether or not it records a conviction[40] and a fine may be imposed in addition to or instead of any other sentence.[41]  There are maximum amounts for a fine provided for,[42] but the relevant provisions are drafted on the assumption that the relevant offence is one created by an Act, which an offence of contempt of court is not.
  3. [70]
    In support of the fines sought to be imposed, the applicant submitted that fines in similar amounts were ordered in Attorney-General v Lovitt QC[43] and Attorney-General v di Carlo.[44]  However, I do not find those cases to be of much assistance.  First, each of them was concerned with misconduct by a barrister who made intemperate scandalising remarks in court about the judicial officer hearing the case in which they appeared.  Second, the respondent is accepted by the applicant to be a man of very modest means in receipt of a disability support pension.  Even a fine of a few thousand dollars might be beyond his capacity to pay or create a very heavy burden having regard to his personal financial circumstances.  Third, his contempts, although prima facie serious, are less so when seen in the light of the facts discussed above.
  4. [71]
    The applicant also applied for an order that the respondent pay the applicant’s costs of the proceeding.  Unlike criminal proceedings upon indictment, under current statutory provisions the costs of a proceeding in civil form for an offence of contempt of court are in the discretion of the court, whether or not a specific punishment is imposed.[45]
  5. [72]
    The current statutory provisions reflect earlier rules, under which an extensive body of case law has developed principles relating to the award of costs in contempt of court proceedings.  Accordingly, although the discretion is unfettered, costs will in some cases be ordered against the contemnor to be paid on the indemnity basis;[46] and in some cases a respondent against whom no finding of contempt of court is made may still be ordered to pay the costs of the proceeding, illustrating that the “general rule about costs”[47] that costs follow the event unless the court orders otherwise[48] may not apply with its usual force.[49]
  6. [73]
    Of greater interest, in the present case, is that in some cases it is ordered that an award of costs against the contemnor may be a sufficient order to “mark the disapproval of the court” in the absence of any other order by way of punishment, whether by committal or fine.[50]
  7. [74]
    This is consistent with other case law that recognises that a liability as to costs may be taken into account in reduction of what may otherwise be imposed as a fine for an offence.[51]
  8. [75]
    In my view, that is the form of order most appropriate to the circumstances of the present case.  In addition, to a very small extent because of the respondent’s limited means[52] and to a greater extent because of the desirability of avoiding any costs of assessing the applicant’s costs, I consider that it is appropriate to fix the applicant’s costs of the proceeding[53] in a relatively modest amount.  The applicant appeared in this hearing and possibly in earlier interlocutory proceedings by senior counsel. I do not consider the complexity of the case was sufficient to allow in the fixed amount any amount for the costs of senior counsel.
  9. [76]
    In the result, I will order that the respondent pay the applicant’s costs of the proceeding, fixed in the sum of $5,000.

Footnotes

[1]Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518, 519.

[2]Uniform Civil Procedure Rules 1999 (Qld), Ch 20, Pt 7.

[3]Criminal Code Act 1899 (Qld), ss 5 and 8.

[4]In this jurisdiction, although Attorney-General v Di Carlo [2017] QSC 171 and Attorney-General v Lovitt QC [2003] QSC 279 are described as scandalising the court cases, they were both about statements made in court. Lovitt, however, was unusual because the statement was made inaudibly to the court but audibly to members of the press sitting near the bar table who subsequently reported them.  There is no other case of publishing statements out of court that scandalise the court in this century in this jurisdiction that I am aware of.

[5]The Law Commission (UK), Contempt of Court: Scandalising the Court, Law Com No 335 (2012).

[6]Crime and Courts Act 2013 (UK), s 33.

[7]The Law Commission (NZ), Reforming the Law of Contempt of Court: A modern statute, Report No 140 (2017), recommendations 42 and 43; Contempt of Court Act 2019 (NZ), s 26(5)(f); Victorian Law Reform Commission, Contempt of Court, VLRC No 40 (2020), recommendations 91 and 92.

[8]P Applegarth, “Coverage and Criticism of Courts”, Judicial Conference of Australia Colloquium, Darwin, 8 June 2019.

[9]Uniform Civil Procedure Rules 1999 (Qld), r 930.

[10]Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, 42. See also pages 94, 105, 117 and 165.

[11]New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173, 182-183; Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518, 523.

[12]Magistrate’s Courts Act 1921 (Qld), s 50(1).

[13]Constitution of Queensland Act 2000 (Qld), s 58(1).

[14]Constitution of Queensland Act 2000 (Qld), s 58(1).

[15]Grassby v R (1989) 168 CLR 1, 17.

[16]Hoser v R; Ex parte Attorney-General for the State of Victoria [2003] VSCA 194, [27].

[17]Wotton v State of Queensland (2012) 246 CLR 1, 13 [19] – [20].

[18]Judiciary Act 1903 (Cth), s 78B and Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and others (1999) 167 ALR 303, 308 [14].

[19]Dowling v Prothonotory of the Supreme Court of New South Wales (2018) 99 NSWLR 229, 235 [16], 254 [109] and 259 [139].

[20]I also note the recent discussion of High Court authority in Mahaffy v Mahaffy (2018) 97 NSWLR 119, 147 - 154 [170]- [210].

[21](1983) 152 CLR 238. 

[22]I acknowledge that statements made in the course of reasons for refusing an application for special leave to appeal create no precedent and are binding on no one: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 117 [52] and 133 [112].  That does not detract from their status as persuasive authority.

[23](1983) 152 CLR 238, 243.

[24](1935) 53 CLR 434.

[25](1935) 53 CLR 434, 442.

[26][2003] VSCA 194.

[27](1992) 177 CLR 1, 31 – 32.

[28][2003] VSCA 194, [16]. 

[29][2003] VSCA 194, [24].

[30](1987) 62 OR (2d) 449.

[31](1987) 62 OR (2d) 449 [145].

[32](1987) 62 OR (2d) 449 [43]; Dubin JA also held that truth is a defence to a charge of contempt of court by scandalising the court relying on the summary of that issue in the report by the Australian Law Reform Commission, discussion paper No. 26, “Contempt in the media”.  There remains debate about whether truth is a defence to an offence of contempt by scandalising the court, although in my view, common sense would be defied if a person were convicted of an offence of contempt by scandalising the court by making a statement that was true.

[33]Attorney-General (Qld) v Lovitt QC [2003] QSC 279, [58]; Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48, 55-56; Director of Public Prosecutions v The Belize Times Press Ltd and anor [1988] LRC (Const) 581, 596 and 600; Attorney-General for NSW v Mundey [1972] 2 NSWLR 887, 911.

[34][2015] AC 875.

[35][2015] AC 875, 895-896, [43]-[49].

[36]I also note the relevant discussion of the question of mens rea by the Supreme Court of Canada in Morasse v Nadeau-Dubois [2016] 2 SCR 232, 251 [28], 281 [115] and 282-283[118]-[120].

[37]For example, Shorter Oxford English Dictionary, 6 ed, Vol 1, p 258, definition “corrupt”.

[38]Crime and Corruption Act 2001 (Qld), s 15(1) is a definition of “corrupt conduct”.  Until recently, conduct was not “corrupt conduct” unless it “[was] engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person”, being a recognisable corrupt element of impropriety of the definition.  However, that requirement was removed in 2018: Crime and Corruption and Other Legislation Act 2018 (Qld), s 5.  The reason for the change seems unclear – see Explanatory Note to Crime and Corruption and Other Legislation Bill 2018, clause 5.

[39]An apparent reference to Mathews v Cooper & Ors [2017] QCA 322, although Morrison JA also was a member of the Court of Appeal in another case involving the respondent: Mathews v Commissioner of Police [2015] QCA 284.

[40]Penalties and Sentences Act 1992 (Qld), s 44.

[41]Penalties and Sentences Act 1992 (Qld), s 45(2).

[42]Penalties and Sentences Act 1992 (Qld), s 45(3) and 46.

[43][2003] QSC 279.

[44][2017] QSC 171.

[45]Civil Proceedings Act 2011 (Qld), s 15; Uniform Civil Procedure Rules 1999 (Qld), r 932.

[46]McIntyre v Perkes (1988) 15 NSWLR 417.

[47]Uniform Civil Procedure Rules 1999 (Qld), r 681, heading.

[48]Uniform Civil Procedure Rules 1999 (Qld), r 681(1).

[49]Foley v Herald-Sun TV Pty Ltd [1981] VR 315; Knight v Clifton [1971] Ch 700.

[50]Attorney-General for NSW v Mundey [1972] 2 NSWLR 887, 915; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650, 657; Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 32 ALR 328, 342; Sunibrite Products (Aust) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73, 79.

[51]Director-General Department of Land and Water Conservation v Ramke [1999] NSWLEC 22, [44]-[51]; R v Gaston [1971] 1 All ER 128n.

[52]I recognise that in all but “exceptional circumstances” the capacity of a party to pay an order for costs is irrelevant to the proper exercise of the discretion: Board of Examiners v XY [2006] VSCA 190, [35]-[36]; Compare Walker v Harwood [2017] NSWCA 228, [20]; Machado v Underwood [2016] SASCFC 123, [45]; Edwards v Stocks (2009) 17 Tas R 454, [12].

[53]Uniform Civil Procedure Rules 1999 (Qld), r 687(2) (c).

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Mathews

  • Shortened Case Name:

    Attorney-General v Mathews

  • MNC:

    [2020] QSC 258

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    28 Aug 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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