Attorney-General v Lovitt[2003] QSC 279

SUPREME COURT OF QUEENSLAND

[1] By application filed on 20 December 2002 the Attorney-General seeks an order that the respondent be punished for a contempt of court which occurred on 4 September 2002 in the Magistrates Court at Brisbane.  The respondent is a senior counsel who lives in Melbourne and whose principal practice is in Victoria.  He was briefed to defend Mr & Mrs Gabriel (“the defendants”) against a charge that they assisted their son to escape from confinement as an involuntary patient who had been confined under the Mental Health Act.  The son, while insane, had killed a young girl.  By reason of his insanity he was not put on trial but was detained in a mental hospital for treatment. The defendants were tried summarily before Mr Bruce Zahner, a stipendiary magistrate.

[2] The particulars of the contempt alleged are that on 4 September 2002 during legal argument in the course of the trial the respondent said, referring to the magistrate,  ‘This bloke’s a complete cretin’ and, a little later, ‘I take it back.  He is not a complete cretin’.

[3] A cretin, according to the Shorter Oxford English Dictionary is someone who suffers a combination of deformity and idiocy.  According to the Oxford Thesaurus synonyms for the word suggest someone who is half-witted, or stupid. 

[4] The respondent admits to having made the statements.  There is, however, a dispute about the circumstances in which they were uttered and the respondent’s intention in making them.

[5] The applicant alleges that the statements were heard by members of the public present in the Magistrates Court during the summary trial and that the statements:

(a)Gave rise to a real risk of undermining public confidence in the administration of justice;  and

(b)Had a real and substantial tendency to prejudice the administration of justice in the summary trial then being heard by Mr Zahner.

[6] The remarks were, in fact, heard by a number of journalists who were present in the court for the purposes of reporting the trial.  A newspaper and two television stations all reported the making of the remarks as part of their account of the day’s events at the trial.  Mr Zahner had not, apparently, heard the remarks but became aware of them from the news coverage.  When the court resumed on the morning of the second day of the trial he  made this announcement:

‘… it has come to my attention that comments were expressed to the television and print media which cast a doubt upon my performance in the discharge of my judicial functions.  Those comments have been widely circulated and I believe that it is in the interests of justice that I disqualify myself from the further hearing of this matter.

I am mindful of the costs which have been incurred by all parties … and the time it has occupied in the court’s calendar.  Notwithstanding this, the comments have an undermining effect upon my ability to discharge my office.  I intend to take the appropriate steps to maintain the integrity of my position.  It is with regret that I have had to disqualify myself in these proceedings.

The matters will not be adjourned … to … another magistrate.’

[7] The trial had attracted a substantial amount of publicity.  Members of the public, including journalists representing various news organisations, were in attendance in the court on 4 September.  There was inadequate accommodation in the public gallery and a number of journalists sat in what had been the jury box when the building had been occupied by the District Courts.  The configuration of the court was such that the front of the jury box was very close to the left hand end of the bar table (left being by reference to one facing the bench from the bar table).  Mr Lovitt and his instructing solicitor sat at the left hand end of the bar table.  The respondent occupied the outer end so that no-one was between him and the occupants of the jury box.  A number of them were called in support of the application.

[8] Mr J J H Grayson sat in the second row of the jury box.  He was level with the bar table.  The respondent was close to the jury box.  According to Mr Grayson’s affidavit:

‘… That morning there was legal argument regarding admissibility of evidence.  Mr Lovitt appeared agitated that he was not successful with his argument and I saw him throw papers around …  There was further legal argument that went against Mr Lovitt at which time he turned to his side and said to the media “This bloke’s a complete cretin, they can’t be all like this.” ’

Mr Grayson made a note of what the respondent had said.  The notes confirm his evidence. The respondent spoke loudly enough for Mr Grayson, who has a slight hearing difficulty, to hear the remarks ‘clear as a bell.’

[9] He estimated he was about a metre and a half from the respondent, who,  when he made the remarks, ‘sort of turned to the media … making eye contact …’  The next morning Mr Grayson was present outside the court building when the respondent arrived.  He asked Mr Lovitt if he would be commenting upon the case.  The respondent replied:

‘No.  You journalists can’t keep your mouth shut.’

[10] Ms Angela Cox, a journalist employed by Channel 7 was also in the second row of the jury box on the second day of the trial.  She recalls the respondent engaging ‘in legal argument regarding some evidence and whether it could be accepted …  His argument did not succeed and he then turned to the jury box … and said something.’  Ms Cox did not hear what was said but later that day she saw the respondent turn to the jury box and heard him say:

‘I take it back.  He is not a complete cretin’.

[11] Ms Sally Eeles, a journalist with Channel 9 sat in the front row of the jury box.  She was almost even with the bar table where the respondent sat.  According to Ms Eeles:

‘… at about lunchtime Mr Lovitt turned to the jury box and said “This bloke’s a complete cretin”.’

She was ‘quite close’ to the respondent, about two metres away.  According to Ms Eeles ‘he turned towards us and said it and then turned back.’

[12] Ms Podmore-Clark was a journalist with ABC television.  She was also in the jury box sitting in the front row ‘about level with’ the bar table and ‘quite close’ to the respondent, perhaps two or three metres away.  Her evidence was:

‘I was taking notes and I was looking at Mr Lovitt and he turned to face the media and said “This bloke’s a complete cretin.  Surely they can’t all be like this.” ’

According to the witness the respondent was standing at the time.  She has an imprecise recollection that later in the day the respondent said:

‘I take it back.  He is not a complete cretin.’

When the respondent spoke it was in a normal conversational tone of voice.  He did not whisper.  The first remark was so audible that Ms Podmore-Clark expected the magistrate might hear it.  The respondent was ‘certainly looking towards her when he spoke.’

[13] Ms Jasmine Lill is a journalist employed by a local newspaper.  She was also seated in the front row of the ‘benches beside … the bar table.’  She was ‘no more than about a metre’ away from the respondent.  Her evidence was that:

‘The prosecution had been granted an application to have a document admitted and Mr Lovitt turned to the media, to the benches of media and said “This bloke’s a complete cretin. They can’t be all like this.”’

He spoke quite loudly.  Ms Lill made a note of his comment.

Later in the day she heard the respondent say:

‘I take it back.  He’s not a complete cretin.’

On this occasion the respondent was sitting and the remark was made less audibly.  The words were mumbled rather than spoken clearly.

[14] The last journalist called as a witness was Mr John Flynn.  His employer was Channel 10.  His evidence is to the same effect as the others.  He deposed that:

‘At one point during that day, Mr Lovitt turned to the media in the jury box (which was away from the magistrate and the microphone) and whilst he was looking at the journalists he said “This bloke’s a complete cretin.  They can’t all be like this.” ’

He understood Mr Lovitt to refer to the magistrate.  He immediately left the courtroom to repair a script of the event for broadcasting.  He made a note of the remarks which confirm his evidence.  In oral evidence he said:

‘I had a view of Mr Lovitt.  It was a slightly obstructed view … so I didn’t have a full facial view the whole time but certainly enough to see that he was gesturing towards the media …  He was leaning particularly towards the Courier Mail journalist (Ms Lill) who … was sitting … closest …’

In cross-examination he described the incident in these terms:

‘… I guess you would say … he muttered under his breath … whether or not he intended for it to be heard the fact of the matter it was heard.  I heard it.’

He was not in court when the second remark was made. 

[15] The respondent also gave evidence.  He swore an affidavit on which he was cross-examined.  He admits he made the remarks which are the basis for the application that he be punished for contempt.  His affidavit goes on:

‘11.I sincerely regret making these statements and I apologise to Mr Zahner and to the court for making them.

The affidavits of various journalists … assert that when I made the statements I turned to the jury box …

13.… I did not deliberately and consciously turn to the journalists in the jury box.  The first statement was a muttered one which I made to myself and the second statement was directed at my instructing solicitor.

14.… My instructing solicitor was seated to my right between me and the prosecuting sergeant. 

15.… At the end of the bar table where I was … was very close to an old jury box where the journalists were seated.  The nearest journalist … was as close as 1-2 arms lengths away.

17.In no other court in which I have appeared have journalists been as physically close to me … as they were in this case. 

18.The statements … were muttered comments …  the initial statement was made out of frustration with the course the case was taking.  The second statement was made in a jocular fashion to my instructing solicitor.  At the time … I perceived that the prosecutor was making repetitive and unjustified calls for the tendering of notes/statements which … witnesses had before them.

19.At the time I made the initial statement I perceived that Mr Zahner was taking an inordinately long time to rule on … calls for tendering notes even to the extent of adjourning for an hour to read case law on the issue of tender of statements … referred to … by witnesses under cross-examination …  It … became apparent … that Mr Zahner had failed to understand the whole thrust of what was sought by the prosecution and resisted by the defence.

20.The statements … were uttered sotto voce in frustration and I did not intend for them to be heard by the journalists, nor were they directed at them.  Further, I had no intention that the statements be published.’

[16] The respondent says that he was surprised to hear on television and to read in the daily newspaper a report of the trial giving prominence to his comments.  He intended, he said, to apologise to Mr Zahner at the commencement of proceedings the next day but was unable to do so before Mr Zahner entered court, made his announcement and left.  It may be noted that the respondent did not intimate to Mr Zahner that he wished to apologise before he left the court.  Nor did he approach his depositions clerk to convey his desire to make an apology and to request the magistrate return so that it could be proffered.   His explanation was that:

‘… That in the atmosphere which then existed, the situation would not have been helped by me seeking to address the court by way of an apology at the end of (the) prepared statement …’

[17] In oral evidence the respondent confirmed that he was standing when he made the first remark.  He was not ‘conscious of looking at the jury (box) …’ but ‘may have just glanced in their general direction.’  The respondent said that the second remark was meant as a joke against himself, apparently because he realised his earlier criticism to be unjustified.  This remark was uttered in the direction of his instructing solicitor who was to his right, away from the jury box. 

[18] The respondent disputes Mr Grayson’s evidence of his remarks outside court the next morning.  The respondent testified that he was asked whether there were ‘going to be any more fireworks’ to which he replied:

‘What, do you expect me to talk to the media?’

[19] In cross-examination the respondent explained that his first remark was prompted by a realisation that Mr Zahner had misunderstood the point of the debate that he had been having with the prosecutor.  As I mentioned the defendants were charged with assisting their son to escape from a hospital for the mentally ill.  According to the respondent the prosecutor attempted to tender notes made by a social worker of conversations he had had with the patient as evidence against the defendants.  According to the respondent:

‘… It turned out the magistrate thought the whole debate was about the statement and not the notes.  Even though the notes had been referred to many many times … that’s what led me to say the remark that I made … which I’m totally resiled from, of course.  It was a silly thing to say.’

[20] The cross-examination proceeded:

‘Out of frustration you said in your affidavit? – Yes.

Frustrated at a ruling that had gone against you? – No, I didn’t say it because the ruling had gone against me.  I said it because … he didn’t appear to understand what the whole discussion was about.  He thought it was about … the police statement the witness had made and not the notes …

Thereby showing himself to be a cretin, so you thought at the time;  is that right? - … Do you want me to start criticising the magistrate in public?  I’m not going to do that.  I said that it became apparent that he didn’t understand it.’

[21] The respondent admitted that the trial had received a great deal of publicity on its first day and that he knew journalists were present in court on the second day.  He realised that the people who were close to him in the jury box were journalists but he ‘wasn’t … remotely thinking that at the time’ that they would hear his remark. 

[22] The respondent also denied that he ever considered that his remarks, even after they had been reported and broadcast, might have amounted to a contempt of court because ‘they weren’t meant for the magistrate’ whom he ‘didn’t want to offend …’  He went on:

‘… It wasn’t meant for the magistrate’s ears.  … The magistrate was sitting quite some distance.  It’s a fairly long narrow court.  The media was sitting right here, forward of me.  The magistrate was quite a distance away.  There was no possibility that he heard it.’

[23] It is apparent from a perusal of the transcript of the proceedings on 4 September 2002 that the respondent has not fairly described the course of events which preceded his offensive remark. 

[24] On the morning of 4 September the prosecutor had called Robert Green, a social worker employed by the Forensic Mental Health Service.  He gave evidence, refreshing his memory from notes he had made of visits to the defendants’ son.  He was then cross-examined by the respondent about entries he had made in his notes, copies of which had been provided beforehand to the respondent’s solicitors.  At the conclusion of the cross-examination the prosecutor, a police officer, sought to tender the notes on which Mr Green had been cross-examined.  The respondent objected:

‘… You don’t just call a witness and because he’s cross-examined about some notes … willy nilly tender the lot …  I don’t see any basis legally nor any relevance in the whole lot of them going in.’

[25] The prosecutor explained that the witness’s notes had been referred to in evidence in chief only for the purpose of allowing the witness to identify dates of meetings and persons present at the meetings.  He pointed out that ‘the cross-examination went into the actual detail of those notes outside of what was the evidence in chief.’  He then referred the magistrate to Hetherington v. Brooks [1963] SASR 321 for the proposition that in such a circumstance the prosecutor might tender the notes which had been the subject of cross-examination.  The magistrate called upon Mr Lovitt to respond.  He said:

‘That’s the sort of submission that used to be made in the last generation.  Unfortunately I was there when it was made pretty regularly.  I didn’t think it was made any more.’

[26] The magistrate remarked that he had heard the submission made quite recently, to which the respondent retorted:

‘… really it’s about time it wasn’t made … Because I cross-examine on notes that he’s refreshed his memory from … the prosecution then be allowed to tender the lot.  This is just not the law … never has been.’

[27] The debate continued without progressing very far.  The respondent said to Mr Zahner that he thought the suggestion that the notes could be tendered was ‘shabby’.  The magistrate, not unnaturally, thought the observation was an impertinence directed at him.  He asked the respondent to identify some legal authority to support his submission that the notes could or should not be admitted into evidence.  Disregarding both his duty to assist the court, and his duty to advance the case of his clients, and with great incivility, the respondent answered:

‘I don’t have to, your Worship’

and repeated his averment that the documents could not be tendered.  The magistrate again invited the respondent to provide him with some legal authority to that effect. The respondent protested:

‘Oh, is your Worship seriously suggesting that I … have the onus of establishing that the prosecution cannot normally tender the statement …?  Is your Worship seriously suggesting that because if you are, I’ll ask that this matter be adjourned and we will go to another place.  We will get that looked at …’

[28] The magistrate with commendable restraint ignored the threat and indicated that he believed the law to be that if a witness were cross-examined on his statement it was ‘open to the prosecution to request that it be admitted … into evidence.’ 

[29] That, said the respondent, with inexcusable rudeness, ‘is completely wrong.’  The magistrate then asked the respondent to show him relevant legislation or a reported case to support the submission.  The respondent replied:

‘I didn’t come armed with legislation to prove what is trite, with respect, your Worship, and that is trite …  Because I’ve cross-examined on the document your Worship’s logic is that therefore the prosecution … can call on me to tender it.  Now if that’s your Worship’s view, I’m sorry, but your Worship is not only wrong but it … tends to reflect a view in this case which I’m sorry to hear your Worship espouse.’

[30] The magistrate had not expressed any view about the case.  He had merely stated, correctly, a principle of the law of evidence which the respondent should have known.  He again replied patiently:

‘If you just let me respond without your criticism … where there has been questions put to witness in relation to matters concerned in their statements those circumstances warrant admissibility of the statements.’

‘Is your Worship serious about that …?’ asked the respondent, who went on:

‘… It’s very difficult to counter that sort of statement from the bench because it effectively means … that the Crown can tender any statement that they want to provided that the … defence cross-examine about it.  Now, that’s the sort of thing that the Crown used to try and do when I was a boy at the bar 30 years ago, and I’m happy to say that in the last 25 or so years they haven’t been doing it because judges stopped them and wouldn’t allow that sort of material to go before a jury …’

The magistrate repeated his plea that the respondent refer him to authority which supported his assertion.  The respondent’s answer was that:

‘There hasn’t been any reported case on it recently, I suspect, your Worship, because no-one’s tried it.’

The magistrate then asked if the respondent would care to comment upon Hetherington’s case which the prosecutor relied upon.  Mr Lovitt replied that he would ‘like to see the case’, but, ‘wouldn’t mind betting’ that it would not support the prosecutor’s submission.

[31] The magistrate then indicated that as the morning tea adjournment was approaching he would take time to research the point.  The prosecutor then brought the argument back to the relevant.  He pointed out that the authority he had relied upon indicated that where cross-examination on a witness’s notes went beyond what had been the subject of examination in chief the notes may be tendered and he gave details of the cross-examination which had gone beyond what had been asked of the witness in chief concerning his notes.

[32] The respondent reacted and this unseemly exchange occurred:

‘The respondent:  That’s not what the bench said.  The bench said they’re admissible, full stop.

The magistrate:  Oh with all due respect I didn’t say “full stop”, Mr Lovitt.

Mr Lovitt:  Yes, you did. 

Magistrate:  I resent that.  I said … if the statements were questioned on matters said in the statement.

Mr Lovitt:  … Your Worship said … that if I cross-examined on the notes, they’re admissible, and even the prosecutor’s now not saying that.

Prosecutor:  Well I never said it in the first instance, your Worship.

Mr Lovitt:  I give up.  Frankly I’m starting to wonder what sort of a hearing we’re going to get in this court in view of some of the rulings your Worship’s made …  I don’t want to retraverse it, but I suggest it’s indicative that your Worship is … going to allow in anything that the prosecution want.

Bench:  Well I reject that comment.

Mr Lovitt:  I’m not someone who’s generally arguing about the rules of evidence because most of the rules … are trite. …  Sometimes people try something on, but they stopped trying this one on years ago. 

Magistrate:  …  Do you wish to comment on the reported case the prosecutor referred to?

Mr Lovitt:  … He doesn’t say, as your Worship was saying, that if I cross-examine on a statement it becomes admissible …

Magistrate:  You are quoting from this case that the prosecutor referred to?

Mr Lovitt:  Oh I know what it says because I’ve read lots of cases that say the same thing.  I don’t need … to read that case …’

[33] The magistrate repeated that he would consult the authorities during the morning  adjournment.  He asked the prosecutor for a copy of Hetherington’s case.  The prosecutor said he did not have a copy.  The passages he had referred to appeared in his ‘prosecutorial notes’.  He promised to obtain the report and provide it to the magistrate.  Despite that statement the respondent interjected ‘Oh the good old prosecutorial notes’ and went on to say that such notes ‘are generally a somewhat … one eyed collection of authority.’  He did not himself refer to any case relevant to the point the magistrate had been asked to decide but did offer the suggestion that:

‘there’s plenty of authority on this issue in any book of evidence.  Gobbo on evidence, I didn’t bring that because the last time I had to produce that in court was probably about five years ago.’ 

The magistrate said he was giving the respondent the opportunity, as he had done at least twice previously to provide him with authorities to consider when deciding how to rule on the application for the tender of the notes.  He said:

‘I’ve indicated what my understanding was.’

The respondent replied:

‘Well, I’ve indicated that, with respect, your Worship’s understanding is wrong.’

The magistrate again ignored the insolence but asked ‘for cases to consider so that I can agree or disagree with your comments.’  The respondent replied:

‘…  any standard text will deal with this issue your Worship.’

[34] It is clear from what followed after the adjournment that both the respondent and the magistrate had independently found and read relevant authorities.  When the court resumed the respondent argued his objection by reference to the cases. No doubt the respondent was surprised to learn that the prosecutor, and the magistrate, had correctly adumbrated the relevant legal principle and that there were comparatively recent cases in which the principle had been upheld.  The cases included:  Senat v. Senat [1965] P 172;  R. v. McGregor [1984] 1 Qd R 256;  R. v. Foggo; ex parte Attorney-General (Qld) [1989] 2 Qd R 49.  The current Australian edition of Cross on Evidence (para 17240)  which the respondent referred to, contains a discussion of the rule.  (The respondent would have won his wager on Hetherington.  It was not relevant.)  The respondent’s understanding of the law, as he expressed it to the magistrate, was wrong. 

[35] The magistrate gave brief reasons in which he referred to those authorities and ruled that the cross-examination of Mr Green on his notes had gone beyond what had been relied upon from them in examination in chief and that, accordingly, the notes could be tendered.

[36] The prosecutor then sought to provide copies of the notes to the magistrate.  It appears there was some confusion in that process and the witness’s statement, as well as the notes were given to Mr Zahner.  While that was going on the respondent said:

‘I take it your Worship is of the view that these are only going in as proof of the fact that they were things written down … rather than proof of the truth of what’s contained in them.’

The magistrate’s reply did not directly answer the question and the respondent sought to obtain an explicit indication of the use to which the documents could be put.  The magistrate answered that his understanding was that the ‘statement … was being tendered (as evidence) of what was said …’

This appeared to accept the respondent’s contention that the notes were not accepted as evidence of the truth of their contents, but only as confirming the witness’s testimony. 

[37] The short answer to the respondent’s question was to be found in s 101(3) of the Evidence Act 1977.  It provides that in any proceedings where a document is received in evidence by virtue of the rules allowing the tender of documents used by a witness to refresh his memory ‘any statement made in that document … shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.’

[38] The magistrate would seem to have been distracted by the volume of paper he had been given and sought to ascertain what documents were the subject of the tender.  He does appear to have thought that it was the statement rather than the notes which had been the subject of cross-examination and the tender.  It was at that point that the respondent turned to the journalists in the jury box to call the magistrate a cretin.

[39] What immediately preceded the respondent’s insult was an inconclusive ruling by the magistrate in response to the respondent’s request for clarification which was sought only because of the respondent’s ignorance of the terms of the Evidence Act,  and the magistrate’s endeavour to identify what documents were in fact being tendered.

[40] I have not reproduced all of the transcript of proceedings.  The passages I have reproduced will be found between pages 136 and 158 of Exhibit 3 to Mr Harris’ affidavit.

[41] My perusal of the transcript of proceedings leads me to reject the respondent’s evidence set out in paragraph 19 of his affidavit that he had become frustrated because the magistrate ‘had failed to understand the whole thrust of what was sought by the prosecution and resisted by the defence.’  The record shows that the point was comprehended by the magistrate who gave a ruling by reference to relevant case law.  The adjudication might have occurred more quickly if the respondent had himself known of the cases when the prosecutor first sought to tender the witness’s notes and addressed the magistrate constructively by reference to legal principle rather than by resorting to bluster, condescension and threats.  It is not fair to criticise the magistrate for ‘adjourning for an hour to read case law’ when it was only during that adjournment that the respondent himself bothered to consult the text books and found the principles which then let him argue the point intelligibly and showed his earlier assertions about the law to have been wrong.  Even so he overlooked the relevant statutory provision which led him, in ignorance, to seek a ruling which, when not to his satisfaction, caused him to abuse the magistrate.

[42] Nor do I accept, as the respondent said in oral testimony (T.40.30-.50) that the magistrate ‘thought the whole debate was about the statement and not the notes even though the notes had been referred to many many times in the course of the discussions.  That’s what led me to say the remark that I made.’  There was confusion about what documents were being tendered, but the magistrate understood the argument concerning admissibility.  The confusion about the documents could have easily been cleared up.

[43] I do not accept the respondent’s evidence that his remarks were uttered softly and without intending them to be heard by the journalists.  I accept the evidence of the witnesses called by the applicant which I have set out extensively.  There was nothing about the evidence or the manner in which any of it was given that causes me to doubt it.  The witnesses were, in a sense, trained observers with particular interest of the proceedings they were reporting.  I am satisfied that the respondent turned to them and spoke audibly to them intending them to hear his insulting criticism.

[44] It is significant that the respondent was not at the time cross-examining a witness or addressing the magistrate.  He interrupted the prosecutor who was addressing the magistrate to make the remark, and stood up to do so.

[45] I base my rejection of the respondent’s evidence not only on a perusal of the transcript of proceedings but upon my observations of his testimony.  He was at the same time evasive and truculent.  He seemed unwilling to accept responsibility for his conduct.  He claimed to have been unfairly treated by the media because he was not from Brisbane.  He sought to justify his behaviour on the basis that no criticism should be levelled at defence counsel in a criminal trial.  He does not deny he turned to the jury box as he made his first remark.  I do not believe that he was not fully conscious of the fact that he was addressing representatives of news organisations.  He knew the case had attracted a great deal of publicity and he knew the journalists were accommodated in the jury box.  He was standing when he made it.  He was not seated, muttering to himself or his solicitor.  He turned to the journalists, away from his solicitor.  He spoke clearly and audibly.

[46] The second remark followed attempts by the prosecutor to elicit some testimony from a witness who had either forgotten it or was reluctant to give it.  His attempt to prompt the witness had been unsuccessful but he persevered.  The respondent objected and the magistrate upheld the objection.  The prosecutor indicated he would not persist with the question, at which point the respondent interjected ‘I take it back.  He’s not a complete cretin.’  He was overheard by the prosecutor and the magistrate, both of whom complained and the respondent offered a terse apology.

[47] I do not accept the respondent’s evidence that his second remark was meant to be jocular or self-deprecating.  Although in form a retraction in substance it repeated the insult and it was grossly offensive.  I am satisfied that this remark too was directed towards the journalists and was intended for their ears.  At least three of them heard it as did the prosecutor and the magistrate.  At the time the respondent was seated at the bar table and did not speak as loudly as he did the first time. Ms Cox observed him turn to the jury box when he made this statement.  I prefer her evidence to the respondent’s.  This remark was a sequel to the first and I am satisfied it was intended to be heard by those in the jury box.

[48] I am satisfied that the evidence of Mr Grayson and Ms Cox captures the essence of the event.  The ‘legal argument regarding admissibility of evidence’ went against the respondent who became ‘agitated and (threw) papers around’.  He then turned to those whom he knew to be journalists and made his cruel and boorish statement.  The magistrate’s ruling had gone against the defendants.  More than that it followed a protracted exchange made unpleasant by the respondent’s ignorant insistence that the documents were not admissible.  His assertions were marked by personal rudeness and disrespect to the court.  When recourse was ultimately had to the basic textbook his want of learning was plainly exposed.

That was the context in which the respondent called the magistrate ‘a cretin’.

[49] I am satisfied of these facts which I have just indicated I find beyond reasonable doubt.  This is, of course, the requisite standard of proof:  Witham v. Holloway (1995) 183 CLR 525 at 534.

[50] The Supreme Court has power to punish contempts of inferior courts.  It is conferred expressly by UCPR 925(1)(d).  The jurisdiction was described as ‘well established’ by Hope JA in Attorney-General (NSW) v. Mundey [1972] 2 NSWLR 887 at 905. 

[51] According to Borrie and Lowe’s Law of Contempt 2nd ed. (p. 2):

‘One of the basic principles of any civilized system of justice is that a person is entitled to a fair trial …  The fairness of both civil and criminal trials can be adversely affected by all kinds of conduct and publications, from suborning a witness to public assertions of prejudicial comment, and it is one of the purposes of the law of contempt to provide sanctions against any words or conduct that are likely to prejudice a fair trial …  A more subtle but no less important aspect of contempt is ‘scandalizing’ a court.  Public faith in the proper administration of justice and in the authority of the law, which is essential for an ordered society, is of course promoted and supported in many ways.  The law of contempt gives one kind of support by providing a sanction against scurrilous abuse of judges or allegations that a judge or court is biased.’

[52] Although contempts of court may take many forms and are for convenience discussed by categories the basic principle is that just expressed:  that conduct which tends to prejudice a fair trial or undermine public faith and confidence in the administration of justice may be punishable as contempt of court.  In this case I think it right, as Mr Glynn SC submits, that the alleged contempt is not of the type commonly called ‘contempt in the fact of the court’, because, although insults offered to a judge constitute contempt of that kind, here the insult went unheard.  Rather there was criticism of the magistrate made to members of the public who were known to be in a position to repeat it to a wide audience.  If categorisation be necessary the contempt in question here is of the kind described by Rich J in King v. Dunbabin ex parte Williams (1935) 53 CLR 434 at 442:

‘Any matter is a contempt which had a tendency to deflect the court from the strict and unhesitating application of the letter of the law … 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 court’s 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.’

The passage was approved by Gleeson CJ and Gummow J in their joint judgment in Re Colina; ex parte Torney (1999) 200 CLR 386 at 390 where their Honours describe it as setting out the ‘essence’ of the offence known as ‘scandalising the court’.

[53] In Gallagher v. Durack (1983) 152 CLR 238 at 243 Gibbs CJ, Mason Wilson and Brennan JJ said:

‘The law endeavours to reconcile two principles:  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 wrong-headed.  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 impressing 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 or judges …  The … 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” …’

[54] In Mundey Hope JA drew attention to the qualifications to the right in a member of the public to criticise the conduct of courts or judges.  His Honour said (910):

‘The cases seem to establish two such qualifications.  In the first place, criticism will constitute contempt if it is merely scurrilous abuse.  …  In the second place the criticism may constitute contempt if it “excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office” … it may and generally will constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide or has failed to act with the impartiality required of the judicial office.’

[55] In Colina Callinan J quoted the judgment of Evatt J in R v. Fletcher;  ex parte Kisch (1935) 52 CLR 248 at 257-258 at which his Honour summarised the law ‘in relation to scandalisation of the court …’:

‘… 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 …

It is the duty of the court to protect the public against every attempt to overawe or intimidate the court by insult or defamation, or to deter actual and prospective litigants from complete reliance upon the court’s administration of justice …’

[56] There are two ‘classic examples’ of publications which scandalise the court.  There are those which are ‘scurrilously abusive’ and those which are intended to or are  calculated to disparage the court or its judges so as to make the public lose confidence in the court and lessen its authority:   Borrie v. Lowe at 229;  R v. Hoser & Kotabi Pty Ltd (2001) VSC 443 at para 46.  The two categories may overlap so that a statement constitutes both scurrilous abuse and an attack upon the authority of the court.  In this case the contempt is in both categories.  It was abuse of the requisite kind and was calculated to diminish public confidence in the capacity of the magistracy.

[57] This species of contempt though ‘rarely encountered’ is not obsolete:  per Callinan J in re Colina at 439.  However, the procedure whereby a court deals with the challenge to its own integrity and authority should be exercised sparingly and only when necessity demands:  per Gleeson CJ and Gummow J re Colina at 391.

[58] The law appears to be that where the contempt is constituted by criticism which tends to undermine public confidence in the due administration of justice the intention of the critic is largely irrelevant.  What matters is the inherent tendency of the criticism to diminish the authority of the court and the public’s confidence in it.  The intention of the critic may have some relevance to a determination of that question.  See John Fairfax & Sons Pty Ltd v. McRae (1955) 93 CLR 351 at 371;  Mundey at 911.  In a case of a different kind of contempt, that of statements which had a tendency to influence prospective jurors and so influence the outcome of a criminal trial, Attorney-General for New South Wales v. Dean (1990) 20 NSWLR 650 the Court of Appeal (Gleeson CJ, Kirby P and Priestly JA) said (655-656):

‘Although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge … the present case may be thought to be a good example of why the law stands as it does.  The matter of overriding importance is to prevent interference with the proper course of trials;  that interference is just as real, and needs to be prevented, whether it is intentional or not.  At all events, the law binding on and applied by this court is clear.  It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statement, which, objectively, had the requisite tendency to interfere in the fair trial of the accused.

The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice.  It is necessary for the prosecutor to prove that tendency beyond reasonable doubt.  The absence of the specific intent, by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt.’

[59] There can be no doubt that the respondent’s criticism of the magistrate went beyond outspoken, mistaken or wrong-headed comment.  It conveyed, and I have no doubt was meant to convey, the imputation that Mr Zahner was an idiot, a simpleton,  who lacked the necessary intellectual power to discharge the important functions of his judicial office.  The term used to convey that imputation was grossly offensive and insulting.  I have no doubt it was chosen for that reason.  Few things could be more likely to impair the authority of the courts than to have it stated publicly that a judicial officer is mentally deficient and thereby incapable of performing his function.

[60] A Canadian case with some similarity to the present is Re Ouellet (Nos. 1 & 2) (1977) 72 DLR (3d) 95 in which a Minister of the Federal Government made disparaging remarks about a judge who dismissed a prosecution brought by his Ministry.  The text of the Minister’s statement was:

‘I find this judgment completely unacceptable.  I think it is a silly decision. I just cannot understand how a judge who is sane could give such a verdict.  It is a complete shock and I find it a complete disgrace.’

Tremblay CJ said (97):

‘… this statement … constitutes a contempt of court.  …  The decisions of judges are subject to criticism as are the decisions of all other public men.  But criticism of a decision is not stating that the person who gave it is an imbecile, which is contempt of court “by scandalising the court” and this … is always prohibited.’

[61] I have no doubt the respondent intended to insult the magistrate and intended to disparage the court and to cast real doubt upon Mr Zahner’s ability to perform his judicial function.  The authorities speak of attacks upon the integrity, propriety and impartiality of the court but I have no doubt that a scurrilous attack upon a judicial officer’s mental capacity or intellect amounts to contempt.

[62] The question whether the respondent intended his remark to be published is more difficult.  Proof beyond reasonable doubt is required and I am not prepared to infer, to that standard, that the respondent meant his criticism to be republished in the media.  I am prepared to infer, beyond reasonable doubt, that the respondent knew that such publication was a distinct possibility and that he was indifferent to that occurrence.

[63] Mr Glynn SC stressed the fact that none of the news organisations which publicised the respondent’s insult had been prosecuted for contempt.  In my opinion the point has no substance.  In Mundey Hope JA (at 915-916) made the point that a statement critical of a judge made to ‘a dozen people would normally have little effect upon the administration of justice, although the effect may depend upon who those people are.’  In that case the damage was done because the remarks were made in the course of an interview which was duly reproduced in a telecast.  Those responsible for the broadcast could, and his Honour thought should, have edited out the offending remark.  It was only one of a number made in the course of an interview following upon a conclusion of a criminal prosecution.  What his Honour stressed was that:

‘…  This is not a case where the defendant was the moving party in the incident involving the contemptuous statement.  It is not a case of an article, letter or prepared statement published in a newspaper or telecast … where the person writing the article … has had time to give thought to its form.  The defendant did not initiate the incident in which the statement was made, and although he must have realised the possibility that his remarks would be telecast, the decision as to what part, if any, of the statement should be telecast was not his.  These circumstances alone would not remove his responsibility for the dissemination of his remarks, but it is important that they were made in answer to questions … which … were intended to produce … a strong and emotional answer.’

[64] In this case there is no resemblance to that.  Here the respondent initiated the criticism and made it to journalists reckless of the outcome and with no basis for believing that all of their news organisations would decline to publish his remarks.

[65] Accordingly I am satisfied that the respondent is guilty of contempt of court.  The immediate consequence was that Mr Zahner felt obliged to discontinue hearing the proceedings and to have them adjourned to another magistrate.  His decision has been criticised as unnecessary but his position had become untenable by reason of the respondent’s conduct.  His ugly condemnation of the magistrate had received wide publicity.  The import of his criticism was that the magistrate could not conduct the trial against the defendants according to appropriate judicial standards and that there was the real risk that the defendants would not receive a fair trial.  Given the seriousness of that charge and the publicity which the trial had already generated the magistrate could very properly believe that public faith in the administration of justice would be restored if he stood down.  Despite the respondent’s protestations to the contrary I am satisfied that he must have realised that that consequence of his remark was a distinct possibility.

[66] I am satisfied beyond reasonable doubt that the respondent’s statements were calculated to impair public confidence in the magistrate and in his judgment and thereby diminish his authority and that of his court.  There was a real risk that the statements so widely published would undermine public confidence in the administration of justice.  It could not be otherwise.  The respondent is a barrister of many years experience appointed to a position of leading counsel.  The public would expect his criticisms to be considered and knowledgeable.  That they have been shown to be otherwise in these proceedings does not diminish their impact at the time.

[67] Given the nature of the contempt and its implications for the magistrate and the Magistrates Court in general and the status of the respondent the contempt is very serious.  The parties asked me not to determine penalty at this stage but rather to hear submissions after I publish my findings in relation to the contempt.  That course will be followed.  I indicate that given the serious nature of the contempt it is my opinion, subject to hearing the submission of counsel, that the respondent should be punished by the imposition of a very substantial fine or, perhaps, by a short term of imprisonment.

[68] The following considerations are relevant to penalty.  There may be others the parties will bring to my attention.

[69] The expression of regret which appears in paragraph 11 of the respondent’s affidavit is the only apology he has ever made.  It was offered for the first time on 28 April 2003 when the affidavit was sworn despite the respondent receiving notice in December of 2002 that the Attorney-General intended to proceed against him for contempt.  The evidence he gave for not apologising earlier, and more fully, was puzzling.  He said that he had received a letter from Mr Zahner advising of a possible action for defamation.  The respondent claimed he could not apologise lest he compromise his defence to such an action or lose his right to indemnity from his insurer.  He also claimed to have been given advice that he should not apologise for that reason.  He did not produce the letter nor the advice.  It would be surprising if a claim for damages for defamation were adumbrated against him.  Even if it had been the respondent must have realised that such a claim would be untenable and could be struck out.  Absolute privilege attaches to all defamatory statements made by a barrister in the course of judicial proceedings.  See Munster v Lamb (1883) 11 QBD 588 at 599, 603-604,  per Brett MR;  Cabassi v Vila (1940) 64 CLR 130 at 140, per Starke J;  Clyne v NSW Bar Association (1960) 104 CLR 186 at 200-201;  More v Weaver [1928] 2 KB 520 at 522, per Scrutton LJ;  Rondel v Worsley [1969] 1 AC 191 at 229, per Lord Reid;  at 252 per Lord Morris of Borth-y-Gest;  at 266-267, 271 per Lord Pearce.

[70] In the first of those authorities, Munster, the Master of the Rolls said (599):

‘… I shall assume that the words complained of were uttered by the solicitor maliciously … not with the object of doing something useful towards the defence of his client:  I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill will or anger towards the prosecutor arising out of some previously existing cause;  and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered;  nevertheless, in as much as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been.’

[71] It is difficult to believe the respondent could have been ignorant of so fundamental a principle. His reason for not apologising for his misbehaviour must lie elsewhere.

[72] In the past this Court has been quite severe with those who insulted judicial officers in inferior courts.  There are two cases which bear some similarity to the present.  In Reece v McKenna ex parte Reece (1953) St R Qd 258 the Full Court upheld the conviction and imposition of a fine of £25 in default of two months imprisonment for insulting a magistrate.  The applicant appears to have been a petty criminal with a lengthy record who was well known to the magistrates.  When brought before Mr McKenna he said:

‘You are too hard.  I want to be tried by another magistrate … every time I come before you you give me £3 or a month.  I would rather be tried by Mr Noyes.’

[73] The court said (264):

‘…  The intended imputation … was that the magistrate was improperly oppressive in the discharge of his judicial duty and partial so far as the appellant was concerned, in other words, that he was unjust.

To impute injustice to a justice is to insult him in respect of the very title he wears …

To a layman the incident may appear trivial and the magistrate seem too tender in respect of his dignity but judicial experience confirms … that the highest standards of respect for the bench is necessary to the proper administration of justice.’

[74] In Dow v. Attorney-General [1980] Qd R 58 a prisoner who appeared in person in the District Court insulted the judge.  He had been remanded on a number of occasions without being brought to trial and mistakenly thought he was entitled to be discharged.  He said loudly ‘I hope I have been brought before a court of law’ which the Full Court held to constitute ‘a suggestion to the effect that his Honour was not conducting the proceedings in accordance with the law, and that constitutes a serious contempt of court.’ (62)  The prisoner was apparently truculent and rude in his manner.  He refused to apologise.  The District Court judge found him guilty of contempt and sentenced him to three months imprisonment.  On appeal the conviction was upheld but the term was reduced to seven weeks.

[75] No doubt there has been a general decline in manners and in respect for authority in all its forms since those cases were decided but I do not know that the decline should be accepted as an inevitable slide.  Reference to the cases serves as a timely reminder that conduct of the type which the respondent displayed in Mr Zahner’s court is a serious affront to the dignity of the court which must be upheld if public confidence in the administration of justice is to be maintained.  The present case is worse.  The earlier cases were examples of contempt committed by defendants in person in whom some lack of restraint may be overlooked.  The respondent is a professional advocate who should know better than others of the need to maintain respect for the court and to show it in his dealings with the court. 

[76] The occasion in question is not the first time that the respondent has been improperly critical of the courts in which he appeared.  On two separate occasions in Western Australia he was the subject of complaint to a professional disciplinary body.  It appears that on each occasion he was charged with making intemperate criticisms that the judge before whom he appeared was acting unjudicially.  On each occasion he was cautioned.  Clearly a penalty of much greater substance is called for on this occasion. 

[77] A number of the respondent’s professional acquaintances in Victoria have sworn affidavits deposing to his good character and commitment to the cause of those he defends.  I attach little weight to them given the evidence of the respondent’s past behaviour, as well as the seriousness of his conduct on this occasion.