IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 873 of 1998.

Brisbane

Before Pincus J.A.

Davies J.A.

Thomas J.A.

[Bradshaw v. Attorney-General for the State of Queensland]

BETWEEN:

JAMES TODD BRADSHAW

(Applicant)

AND:

THE HONOURABLE DENVER BEANLAND

Minister for Justice and Attorney-General for the

State of Queensland

(Respondent)

Judgment delivered 7 August 1998

Separate reasons for judgment of each member of the Court; Davies and Pincus JJ.A. concurring as to the order made; Thomas J.A. dissenting.

ORDERS MADE BY HIS HONOUR JUDGE WHITE ON 4 DECEMBER 1997 IN RELATION TO THE APPLICANT ARE SET ASIDE.

CATCHWORDS: ADMINISTRATIVE LAW - Certiorari order from contempt of court finding - whether order should be made absolute - review for jurisdictional error - whether words used capable of amounting to wilful insult s.129(1) District Court Act 1967 - denial of natural justice - whether adequate opportunity to defend charge.

Counsel: Mr CEK Hampson QC, with him Mr NJ Macgroarty for the applicant

Mr PA Keane QC, with him Mr PA Freeburn for the respondent

Solicitors: Thomas Stevens & Co for the applicant

Mr B T Dunphy, Crown Solicitor for the respondent

Hearing Date: 18 May 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 7 August 1998

I have had the advantage of reading the reasons of Thomas J.A.  I agree with his Honour’s conclusion that the language used by the applicant was insulting, and, on the facts which emerged below, wilfully insulting.

A more difficult point is whether natural justice was denied.  The circumstances that in such a case as this the same person is the accuser, a witness to the conduct complained of and the tribunal which determines whether that conduct constituted contempt makes the jurisdiction "one which is to be exercised with great caution": John Fairfax & Sons Pty Ltd v. McRae (1955) 93 C.L.R. 351.  I have heard of instances in which it has been exercised even more summarily than it was in the present case, with less opportunity for the person charged to consider what should be done; but one would not wish to encourage such procedures.  In the present case the fine for contempt followed rapidly upon the making of the charge; between the two events there was but a brief exchange between the judge and the applicant, in the course of which the applicant was invited to defend himself then and there.  That he did so by means which appear not to have been at all well‑chosen confirms the impression that the applicant had not adequate time to consider the matter and to think about the various courses open to him.  They included advancing arguments along the lines put up by his counsel before us; seeking advice; or, more simply, asking that the matter be stood down for sufficient time to enable him to determine how to deal with the situation.  In making my comment about the ineptness of what the applicant put forward to defend himself, I have in mind particularly the first of the two points he made.  The applicant said:

"Well, let’s abort this trial.  I’m not going to stand here in trepidation about my future and say I can adequately represent my client".

This was not relevant to the subjects which the applicant should have been addressing, which were whether he was guilty of contempt and, if so, what punishment or other remedy should be applied.  The implication of the applicant’s remarks was that it was difficult for him to deal with a charge against himself when, until it was brought, he had been focusing on the charge against his client.  Although, as was pointed out in argument before us, the applicant should have appreciated that he could ask for an adjournment, the passage I have quoted is some indication that he found the task of dealing with the contempt allegation at that stage an awkward one.  And, more simply, the applicant’s question "Now?" after being told to "Go ahead", did not evidence any anxiety to deal with this case, one of some importance to the applicant, instantly.  The judge’s answer to the question was "Yes", without any qualification.

It is clear that, rather than appearing to require an immediate and unconsidered response to the charge, it would have been better for the judge to have adjourned the contempt case for a suitable time, and helpful for his Honour to have explained that the purpose of doing so was to enable the applicant to consider his position and if he wished to, take advice.  The question, which I have found one of some difficulty, is whether the failure to take some such course vitiated the judge’s orders.  Those orders were to impose a fine of $500 and require that sum to be paid within a month.  It is perhaps a small point, but I notice that the judge did not formally find the charge proved, an omission which was perhaps symptomatic of the haste in which the proceedings appear to have been conducted.  It was suggested that this haste was necessary because there was a jury trial in progress and the jury was waiting.  With respect, it is difficult to see that anything was likely to be gained by rushing matters; I note that in the result the jury had to be discharged.

In B.K. v. The Queen (1995) 129 D.L.R. (4th) 500, the Supreme Court of Canada had to deal with a case in which the judge had convicted the appellant of contempt instanter; no charge was expressly made.  In the principal judgment at para. 15 the Chief Justice remarked:

"I . . . find no justification for foregoing the usual steps, required by natural justice, of putting the witness on notice that he or she must show cause why they would not be found in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to be represented by counsel.  In addition, upon a finding of contempt there should be an opportunity to have representations made as to what would be an appropriate sentence.  This was not done and there was no need to forego all of these steps."

In reaching its conclusions the Canadian Court approved of remarks made by Lord Denning M.R. in Balogh v. Crown Court at St. Albans [1974] 3 All E.R. 283 at 287-8.  Referring to the power of summary punishment for contempt, Lord Denning said:

"It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately . . . It is, of course, to be exercised with scrupulous care . . ."

Another English decision dealing with the principles applicable is Moran (1985) 81 Cr.App.R. 51.  Among the principles stated were that the judge should give himself time for reflection as to what is the best course to take and consider whether that time should not extend to a different day.  Moran illustrates what one finds to be a persistent theme in the authorities, the need for careful and deliberate consideration of such matters - unless there is such an emergency as to require precipitated action.  A recent example is Banham (1995) to be found in the Current Law Year Book 1996, para. 1564.  There, it appears, Balogh was applied again and it was said in the English Court of Appeal Criminal Division, that the case not being one where urgent action was required, the judge should not have dealt with the matter immediately, but should have given Banham time to prepare.  The Court suggested that Banham probably would then have been advised to apologise and the Court would have dealt with the matter in a different way.

There is in my view no absolute rule that the judge must always offer a person accused of contempt time to prepare, the charge having been laid.  But if the judge fails to do so, in some circumstances the appearance may be created that the person accused, even if a lawyer, has not been given a fair trial, because pressed to deal with the charge against him without having had time to consider how to respond.  With some regret, I have reached the conclusion that the present case fulfils that description.  I accept that, as was contended on behalf of the applicant, there was a failure to accord natural justice and that the judge’s orders cannot stand.

Although the writ of certiorari cannot any longer be issued by this Court, s. 41(1) of the Judicial Review Act 1991 precluding that course, it continues to have the same jurisdiction under a different description: s. 41(2).  In strictness, the present application should be one for review, under s. 43(1) of the same Act.  The Court may in such a case as this "in addition to setting aside the decision, remit the matter to the Court . . . concerned for further consideration . . .".  That could in my view be done in the present case, and would I think appropriately be done, were it not for the fact that there appears to be no good reason why, in the interests of justice, the matter should be taken further.

In saying this, I have in mind that this Court has agreed with the view that the applicant’s conduct was wilfully insulting and that in this Court some sort of apology was proffered.

In summary, I would set aside the orders made below on the ground that the applicant was not accorded natural justice, but make no further order and, in the circumstances, make no order as to costs.

REASONS FOR JUDGMENT - DAVIES J.A.

I have read the reasons for judgment of Pincus J.A. and Thomas J.A. and agree with them that the applicant's conduct in the present case was wilfully insulting.  It follows from the reasons of each of their Honours that the question whether the learned primary judge was in breach of the rule of  procedural fairness which required him to afford the applicant a sufficient right to be heard is one on which minds may differ.  In considering that question I adopt Thomas J.A.'s statement of relevant facts.

The right to be heard assumes particular importance in a proceeding of this kind because such a proceeding has the appearance, and unfortunately sometimes the reality of infringing the other traditional rule of procedural fairness, that a judge should not act in his or her own cause.  That is a reason why, especially in such cases, the summary power to punish for contempt should be exercised with great caution.

The question in the present case is whether the failure of the trial judge to adjourn the matter for a time or to at least offer the applicant an adjournment before he was called on to answer the charge and, on the contrary, his Honour's direction that the applicant answer it immediately amounted to a breach of that right.  What was required was a fair opportunity to answer the charge.

In considering that question it must be borne in mind that, only 13 or 14 minutes before the learned primary judge charged the applicant, there had been a heated exchange between his Honour and the applicant in which both appear to have lost some control over their emotions.  It is true that the applicant, as a barrister, should have had the presence of mind himself to apply for an adjournment.  But having been confronted with an intimation that he should proceed to defend himself immediately, after inquiring whether that was required, he may not have had the presence of mind, in his heightened emotional state, to formally apply for an adjournment.  What he then said, purportedly in his defence, tends to indicate that his mind was not focussed on the elements of the charge or any defence to it or any plea in mitigation.

It is also true that, as appears from this Court's conclusion, that the applicant's conduct in the present case was wilfully insulting within the meaning of s.129 of the District Court Act 1967, and I would add plainly so.  But it does not follow that, if an adjournment had been granted, the same result would inevitably have followed.  On calmer reflection the applicant may have tendered an unconditional apology^[1] and his Honour may have decided, despite the breach, not to convict or may have imposed a lesser penalty.  In any event it appears to be immaterial to the question of breach or its consequence whether or not, if an adjournment had been granted, the same result would inevitably have followed.^[2]

Although a criminal trial was pending there was no urgency which required the applicant to defend himself immediately rather than in the afternoon of that day or the following morning.  When one has regard to that lack of urgency and the apparent emotional state of the applicant I am inclined to the view that to give the applicant a fair opportunity to put his case in response to the charge required the learned primary judge to offer an adjournment to him to that afternoon or the following day.

Having reached that conclusion I agree with Pincus J.A. that, in the circumstances, the matter should not be remitted to the District Court for further consideration and that the only order which should be made is one setting aside the orders made by the District Court judge.

REASONS FOR JUDGMENT - THOMAS J.A.

On 4 December 1997, on the second day of a criminal trial in the Cairns District Court, defence counsel, Mr Bradshaw made certain remarks in court which led to his being found guilty of contempt.  He was fined $500.  He then brought an application for leave to appeal against the adjudication and order, but the Court of Appeal held that it had no power to grant leave or to entertain an appeal against such a judgment.  The court determined however that a certiorari order should be made removing the matter into this court.

The present proceeding involves determination of whether that order should be made absolute.  The grounds upon which the matter was reviewed may conveniently be stated as -

1. whether the words used, in the relevant context, were capable of amounting to a wilful insult under s.129 of the District Courts Act 1967; and

2. whether in not offering Mr Bradshaw an adjournment before requiring him to answer the charge, the learned judge breached the rules of procedural fairness.

The present proceedings are of course not a rehearing as upon an appeal.  It is a review for jurisdictional error.  That may now be granted when the decision-maker’s record displays an error of law, and of course any breach of the rules of natural justice would also enliven the jurisdiction.  Accordingly the above grounds fall to be considered by this court.

Mr Bradshaw was defending a man charged inter alia with unlawful wounding.  In the course of his examination of the arresting officer the following exchanges occurred.

Well, during the record of interview you find out potential witnesses from the accused’s perspective -----

THE JURY RETIRED AT 11.07 A.M.

THE COURT ADJOURNED AT 11.12 A.M.

MR BRADSHAW LEAVES COURTROOM”

Further submissions then ensued as to whether the trial could be continued and the matter was adjourned until the afternoon.  Another barrister, Mr Sumner-Potts then appeared for Mr Bradshaw with a request that his Honour vacate the contempt proceedings.  The question whether Mr Bradshaw might be prepared to continue to conduct the trial on behalf of the accused was postponed pending determination of Mr Sumner-Potts’ application.  His Honour indicated that if he were persuaded that he had made an error he believed that he had jurisdiction to correct it.  During the ensuing submissions his Honour indicated that he regretted using the term “my boy”, and Mr Sumner-Potts made a number of submissions including the observation that tempers can flare on both sides in such matters and that in the heat of battle one can become unwittingly offensive.  Reference was made to passages in Lewis v Judge Ogden (1984) 153 CLR 682 and it was submitted that the words should not be construed to have been intended to be a wilful insult.  His Honour indicated that he had heard no denial by Mr Bradshaw that the insult was wilful, and that “I still hear no denial from him”.  A rather limited offer of withdrawal appeared in the course of Mr Sumner-Potts’ submissions as follows–

Whilst the offer to withdraw the blasphemy (but not the insult) was theologically immaculate, it was hardly calculated to improve the applicant’s situation in relation to the judge.

Mr Sumner-Potts finally submitted –

“Mr Bradshaw did not intend that wilful insult . . . and he regrets that an episode or any other episodes such as this takes place . . . I would be able to - I’d imagine - get a statement from him which I could read onto the record to that general effect.”

His Honour having intimated that he was not prepared to revisit the matter on those terms, Mr Sumner-Potts noted that that would leave the conviction for contempt standing and “in that case, I don’t anticipate that Mr Bradshaw will be back”.

In due course his Honour discharged the jury under s.62 of the Jury Act.

The record was supplemented to some extent (without objection) by an affidavit from Mr Bradshaw.  It asserts that in disallowing his questions “his Honour spoke in a contemptuous voice and in a manner very dismissive of my contention that it was relevant”, and that when stating “Look, watch yourself my boy” his Honour spoke “loudly in an angry tone of voice whilst at the same time gesticulating by way of waving his forefinger directly at me several times”.  The supplementary material does not however significantly change the interpretation that might naturally be placed upon the events by reference to the words that were actually used.

The charge was made under s.129(1) of the District Courts Act 1967, which, where material provides–

“If any person . . . wilfully insults a judge . . . during . . . attendance in court . . . the person shall be guilty of an offence and . . . may be dealt with as provided hereinafter . . .”

The parties accepted that the requisite standard of satisfaction that Mr Bradshaw had wilfully insulted the judge was beyond reasonable doubt.

It has not been shown that his Honour’s ruling disallowing the questions (which produced the initial expostulations of “Jesus” and “For God’s sake”) were legally incorrect.  The only transcript placed before us commences shortly before that point.  It seems clear enough that Mr Bradshaw’s objective in asking the questions was perfectly proper, namely an attempt to demonstrate that the prosecution was being inappropriately selective in the witnesses whom it was calling.  However he was not entitled to do so by eliciting the contents of a record of interview which was not admissible in evidence.  Unfortunately the objection, the argument in support of the question and the judge’s ruling all failed to rise above the level of mere assertion.  However on analysis, this is not a case where the evidence suggests any biased or even incorrect ruling in favour of the Crown such as might understandably produce a strong concern and reaction from counsel.  At this early stage in the exchange, counsel gave vent to irritation at what would seem to be a correct technical ruling which made it more difficult for him to elicit material that he was entitled to present.

Counsel’s dissent, it may be noted was in respect to rulings of law, where a judge’s authority in a jury trial must be protected.  This position may be contrasted to some extent with the position of a judge who makes comments on the facts, where a robust response from counsel will often be appropriate to redress what counsel perceives to be an imbalance (cf. Lewis v Judge Ogden above at 690-691).

Once the jury had been sent to the jury room, counsel’s conduct degenerated into what can only be described as direct insults.  It is true that these were made in the course of his “asking for this trial to be aborted”, but the comments were neither germane to the argument nor, it would seem, justified by the events that had gone before.  Mr Bradshaw alleged “antics” on the part of the judge, accusing him of unprofessional and unjudicial conduct.  This serves to place in context the ensuing words which form the basis of the charge, namely–

“The Crown come along here because White DCJ is on the bench and they chuck up this nonsense.  Let them dare present this sort of case in front of any other judge.”

Those words are plainly insulting.  They are express assertions that his Honour accepts nonsense from the Crown, that the Crown knows and takes advantage of the fact that his Honour accepts nonsense, and that no other judge would accept that type of nonsense from the Crown.  The implication is his Honour is inferior to any other judge in the discharge of the duties of his office and that his Honour is biased in favour of the Crown.

Mr Hampson’s submission is that although insulting, it is language used in the course of a submission and should not be regarded as being a wilful insult.  In Lewis v Judge Ogden above, the need for actual intention to insult is emphasised.  It is also recognised that the contempt power exists to vindicate the integrity of the court and of its proceedings, not to vindicate the personal dignity of a judge, and that the power of punishing for contempt should be used sparingly.

Even with those limitations fully in view, it is impossible in the present case to regard Mr Bradshaw’s words as other than a wilful insult.  He clearly crossed the line.  The relevant words are not truly a part of any submission for the termination of the trial - they are a gratuitous insult, albeit tacked on to a submission.

Upon being charged, Mr Bradshaw proceeded to defend himself, and returned to the theme of “let’s abort this trial”.  There is not a hint of any retraction, withdrawal or apology.  Instead there was added a personal, unparticularised allegation that his Honour had gone to a Halloween party and, his Honour was asked to recall how his Honour had described himself.  Although the transcript does not contain that description, Mr Bradshaw’s affidavit states it to have been that of a hanging judge.

Mr Hampson conceded that the words were insulting, and confined his submission to the absence of wilful insult.  I can find no error of law or indeed any other error in characterising these words as and holding them to be a wilful insult in the course of proceedings in court.

The other ground upon which certiorari was sought is denial of natural justice.  It was submitted that his Honour, having read out the charge, should have immediately adjourned the court until the afternoon session so that Mr Bradshaw could take advice and deal with the matter more satisfactorily.  While such a course may have been wiser and preferable to the course that was then taken, it does not follow that his Honour was bound to proceed in that way.  Mr Bradshaw of course is an experienced barrister, and he did not ask for any such adjournment.  He says in his affidavit that he was shocked at the judge’s reaction, but he can hardly have been surprised by the contempt allegation given the judge’s comment at 11.12 a.m. “Mr Bailiff, would you get a policeman here, please?”.  This was followed by a thirteen minute adjournment, and the laying of the charge when the court reconvened at 11.25 a.m.

The proceedings were certainly short and to the point, but Mr Bradshaw was offered the opportunity to defend, including a further opportunity before any order was made -

“HIS HONOUR:  Anything else you want to say?

MR BRADSHAW:  No”.

The opportunity for defence was accordingly given.  The question then is whether there is some additional procedural prerequisite in the nature of a cooling down period before any finding of contempt of court may be made.  There is of course no such general principle, though it may well be possible that a person who has been given an opportunity to respond has in substance been deprived of the opportunity of presenting a defence, or has otherwise been denied the opportunity of properly defending the charge.  Such conclusions would depend on the facts of the particular case.

It may well be that it is in general desirable to allow a cooling down period, as this is more likely to lead to a temperate conclusion than an immediate determination.  It may also often be desirable to suggest that the charged person seek legal advice.  On the other hand, there are cases where a speedy determination is necessary, such as where the authority of the court needs to be asserted promptly and decisively to preserve the proceedings from progressive deterioration or dissolution.  In the present case there was some need to bring the matter to a speedy conclusion because twelve jurors had already been sent to the jury-room, and would need to be kept there until such time as the question whether the trial could continue was resolved.  That question was bound up with the issue of contempt, and Mr Bradshaw would be unlikely to be resolved until the outcome of the contempt proceeding was known.

In MacGroarty v Clauson (1989) 167 CLR 251, 256, the High Court discerned in s.129 (then s.105) of the District Courts Act 1967 “a legislative intent that the ability of the District Court to deal promptly with the statutory offences which the section creates should not be unduly impeded by formal procedural requirements.”  That of course did not dispense with the need to identify distinctly the offence charged and give the alleged offender an adequate opportunity of answering it.  The suggestion that a judge is bound to adjourn and advise the alleged offender to take legal advice tends towards imposing an additional procedural gloss that is not required by the section and which would on some occasions unduly impede the process.  It is therefore difficult to regard this as a requirement rather than as a procedure that will often be desirable.

In Moran (1985) 81 CAR 51, and in Murphy v Magistrates Court at Prahran (1995) A Crim R 92, useful advice was given on the dangers of precipitate action against seeming contemnors.  This advice was described as “principles” by Lawton LJ and Cantley J in the Divisional Court in Moran above at p.53, but it is difficult to treat the suggestions as other than sound general advice.  Their Honours stated–

“Justice does not require a contemnor in the face of the Court to have a right to legal advice.  But if the circumstances are such that it is possible for the contemnor to have advice, he should be given an opportunity of having it.  In practice what usually happens is that somebody gives the contemnor advice.  He takes it, apologises to the Court and that is the end of the matter.  Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure . . .”.

The need for sparing use of this power of summary punishment has also been underlined in Balogh v St Albans Crown Court [1975] QB 73, 85; Shamdasani v King Emperor [1945] AC 264, 270; and Lewis v Judge Ogden (above).

The circumstances of such cases are infinitely various, and none of the above cases is truly comparable to the present.  In this case the Judge did not initially suggest that Mr Bradshaw should obtain legal advice, and neither did Mr Bradshaw.  Such a suggestion may well have been regarded as paternalistic.  In any event, Mr Bradshaw did eventually return with counsel in the afternoon, and his Honour permitted further argument to ensue with the object in view that he would set aside the order if it was appropriate to do so.  The further argument did not produce any promising line of argument, and the suggested statement of regret that such an episode should take place fell short of any genuine apology.  The circumstances also included the retention in the jury room of jurors pending the resolution of the contretemps.  It is always possible in hindsight to suggest that matters be done some other way, but it could not be said that the Judge was unreasonable in perceiving some degree of urgency in dealing with the matter.

In short, although it may have been preferable for the Judge to have stood the matter down, and may have been helpful had he suggested that Mr Bradshaw obtain legal advice, and whilst the procedure was short and summary, those circumstances did not in my view deprive Mr Bradshaw of the opportunity of presenting a defence or otherwise deny him the opportunity of properly defending himself.  Since preparing these reasons I have had the advantage of reading the reasons prepared by Pincus J.A. and Davies J.A.  With due respect I remain of the view that the present circumstances do not approach the situation of showing infringement of the limited common law notion of natural justice.

No error of law or of jurisdiction has been shown in the making of the order under review.

The certiorari order should be discharged.