Dowling v Prothonotary of the Supreme Court of New South Wales

Case •

[2018] NSWCA 233

•

17 October 2018

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 233
Hearing dates: 15 October 2018
Date of orders: 15 October 2018
Decision date: 17 October 2018
Before: Leeming JA
Decision:

(1) Dismiss the notice of motion filed 8 October 2018 seeking bail.

(2) Direct the Registrar to appoint an amicus to assist the court at the hearing of Mr Dowling’s appeal on 16 November 2018.

(3) Reserve my reasons for those orders.
Catchwords: CONTEMPT – application for bail pending appeal – contemnor serving term of imprisonment following conviction and sentence – appeal listed for hearing in 4 weeks’ time – strength of case on appeal – appeal confined to legal defences – interaction of Lange freedom of communication with contempt charges – effect of failure to comply with UCPR r 40.7 – failure to establish sufficient prospect of success in setting aside conviction – failure to establish sufficient prospect of Court of Appeal reducing sentence so as to render appeal nugatory – bail refused
Legislation Cited: Bail Act 2013 (NSW) s 90
Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 6, 8
Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW) ss 18, 63
Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A
Judiciary Act 1903 (Cth) s 78B
Supreme Court Act 1970 (NSW) ss 101, 131
Uniform Civil Procedure Rules 2005 (NSW), r 40.7
Cases Cited: Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Capilano Honey Ltd v Dowling [2018] NSWSC 876
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Danny Lim v R [2017] NSWDC 231
Doe v Dowling [2017] NSWSC 1037
Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93; 44 ER 324
Gallagher v Durack (1983) 152 CLR 238; [1983] HCA 2
Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161; (2003) 9 VR 1
Jane Doe 1 v Dowling [2017] NSWSC 57
John Fairfax Publications Pty Ltd v The Attorney General for the State of New South Wales [2000] NSWCA 198; 181 ALR 694
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31
Mahaffy v Mahaffy [2018] NSWCA 42
Matthews v Australian Securities and Investments Commission (2000) 97 FCR 396
Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46
Pelechowski v Registar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19
Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711
Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664
Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 4) [2018] NSWSC 785
Prothonotary of the Supreme Court of New South Wales v Shane Francis Dowling [2018] NSWSC 1301
R v Mahaffy [2016] NSWSC 1085
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Texts Cited: None
Category:Consequential orders (other than Costs)
Parties: Shane Dowling (Applicant)
Prothonotary of New South Wales (Respondent)
Representation:

Counsel:

 

S Dowling (in person)
D Kell SC (Respondent)

 

Solicitors:

  Crown Solicitor’s Office (Respondent)
File Number(s): 2018/294449
Publication restriction: None
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law – Civil
Citation:
[2017] NSWSC 664
Date of Decision:
03 August 2017
Before:
Wilson J
File Number(s):
2017/94322

Judgment

  1. LEEMING JA: These are my reasons for making orders on 15 October 2018 refusing bail but ordering the appointment of an amicus curiae to assist the Court when the pending appeal is heard on 16 November 2018.

Background

  1. By notice of motion filed on 8 October 2018, Mr Shane Francis Dowling seeks an order that he be granted bail. He is presently serving a term of imprisonment following his conviction on 3 charges of criminal contempt. The first count arose out of Mr Dowling loudly and aggressively making scandalous allegations in a busy list being administered by a Registrar of this Court on 3 February 2017. The second and third relate to material published by Mr Dowling in deliberate contravention of orders made by Beech-Jones J later on 3 February 2017 relating to the same matter. For the purposes of his submissions in support of bail, I did not understand Mr Dowling to contest any aspect of the facts giving rise to the charges summarised above.

  2. Mr Dowling was found guilty of each of those contempts by the Court constituted by Wilson J on 3 August 2017: Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664. Following a sentencing hearing on 17 August 2018, an aggregate sentence of 18 months imprisonment, with a non-parole period of 13 months, was imposed by judgment delivered on 22 August 2018: Prothonotary of the Supreme Court of New South Wales v Shane Francis Dowling [2018] NSWSC 1301. The indicative sentence for each of the three convictions (recorded by Wilson J in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) was 9 months imprisonment.

Two preliminary matters

  1. Two matters should be mentioned immediately. First, the extensive delay between conviction and the sentencing hearing, during which time Mr Dowling was at liberty, is a matter of concern to me and was of concern to Wilson J. Her Honour explained that delay at [4]–[7] of her second judgment, observing that there had been a series of adjournments by reason of Mr Dowling’s applications for legal aid, which was granted, following which he withdrew his instructions from at least two solicitors and two counsel and ultimately appeared unrepresented. The reasons given by Wilson J in resolving Mr Dowling’s application for an adjournment on 25 July 2018 refer to some of that background.

  2. Secondly, neither of the judgments recording Mr Dowling’s conviction and sentencing is presently published on Caselaw. I was told that there are pending proceedings in the Common Law Division to permit what the Crown Advocate described as only slightly redacted versions of those judgments being made available, which were to be heard on 8 November.

  3. I shall return to this below, but, as I indicated in terms during the hearing, I regard it as a very serious thing for the Prothonotary, an officer of this Court, to prosecute Mr Dowling for criminal contempt, and for this Court to find him guilty and sentence him for a term of imprisonment for 18 months, other than in a way which is completely transparent.

  4. A primary objective of the administration of justice is to safeguard the public interest in open justice. The command in s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW) to have regard to that primary objective on every occasion an order under the Act is made is surely unnecessary but nonetheless salutary. To come directly to the point, it is not clear to me that there is now, in October 2018, a proper basis for a suppression or a non-publication order for any aspect of what occurred on 3 February 2017, let alone the steps taken subsequently to prosecuting Mr Dowling for contempt. I have seen from the transcript of 17 August 2018 (T.102.45–50) that her Honour indicated a similar view, subject to the possible qualification as to the identity of the persons named by Mr Dowling. It seems that the Prothonotary has taken a different view, although following hearing her Honour’s view, her counsel said that that view might be reviewed. As presently advised, I share her Honour’s view. Her Honour had interrupted a pending trial to deal with the application, and had limited time, which may explain why the Prothonotary’s application remains undetermined, pending which the entirety of both judgments had not been published.

  5. The Prothonotary may of course be conscious of other matters of which I am unaware. However, if there were such matters, I was not told of them. The Crown Advocate did mention that there had been a review of those orders, and helpfully provided a reference to Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 4) [2018] NSWSC 785, in which the Court declined to lift the orders made on 3 and 8 February 2017. I have not had the benefit of submissions on the reasoning in that judgment. It is sufficient to say that in my respectful view, the fact that Mr Dowling is presently serving a sentence of imprisonment (which was not the case when those orders were reviewed) materially alters the analysis of the public interest in open justice and what is necessary to prevent prejudice to the proper administration of justice.

  6. So far as is immediately relevant, I was told that the only matters in my judgment which might give rise to a properly founded application pursuant to the Court Suppression and Non-publication Orders Act 2010 would be the identity of the judicial officers and the nature of what was said scandalising the Court on 3 February 2017. It will be clear from what I have already said that it is far from clear to me that any of the bases identified in s 8(1) of the Court Suppression and Non-publication Orders Act 2010 apply to a description of the scandalising statements made by Mr Dowling on 3 February 2017. However, in deference to the possibility of some submission to the contrary, and because what precisely was said is of no present relevance, these reasons do not disclose those identities and the words which were said. I take that course in circumstances where (a) it is proven beyond all doubt – and Mr Dowling makes no submission to the contrary – that Mr Dowling uttered those words and (b) I am persuaded that they are a very serious instance of words which are a contempt, in accordance with what was said in Gallagher v Durack (1983) 152 CLR 238 at 243; [1983] HCA 2 and the cases there cited, falling within the sub-category of scandalising contempt by scurrilous abuse more elaborately considered in Mahaffy v Mahaffy [2018] NSWCA 42 at [170]–[224] (Simpson JA, with whom in this respect Payne JA and Emmett AJA agreed at [246] and [288]). Once again, no submission was made to the contrary, and I note that the insertion of s 131 of the Supreme Court Act 1970 (NSW) by the Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW) expressly preserved the right to bring proceedings for contempt for behaviour that constituted the offence of disrespectful behaviours in Court created by that section (see s 131(12)).

  7. Even so, it is not in my view wholly satisfactory that these reasons do not transparently disclose what Mr Dowling said and did on 3 and 5 February 2017, especially bearing in mind Mr Dowling's submission that the sentence was excessive. However, taking any other course in this published judgment would have the effect of undermining non-publication orders which are presently in place, which should not be done without first hearing fully from the Prothonotary who sought and obtained and defended those orders. I am firmly of the view that my reasons for refusing bail and for appointing an amicus should be publicly available. I have reached the view that in all of the circumstances the appropriate course is to leave what precisely Mr Dowling said and did undisclosed, save to say that it amounted to a very serious contempt, and noting that (putting to one side Mr Dowling's legal submissions which are addressed below) no contrary submission was made.

This Court’s jurisdiction to grant bail

  1. The threshold question is the nature of this Court’s jurisdiction to hear and determine the application for bail pending appeal. Although the contempts charged were criminal, an appeal lies to the Court of Appeal by reason of s 101(5) of the Supreme Court Act 1970 (NSW). There is some complexity in the Court’s jurisdiction to hear and determine an application for bail pending appeal. I had the advantage of a note prepared by the Crown Advocate on jurisdictional issues, which drew attention in particular to some of the inconsistent decisions in this area and the fact that s 90 of the Bail Act 2013 (NSW) does not, subject to s 90(3), affect this Court’s power to grant bail for cases of contempt. The Registrar had provided Mr Dowling with references to R v Mahaffy [2016] NSWSC 1085 and Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280, both of which address the jurisdiction to grant bail pending an appeal from a conviction and sentence for contempt.

  2. It is not necessary, on the view I have taken, to address in any detail the applicable principles. It is plain that a relevant matter is the strength of the pending appeal, as is the extent to which the sentence will have been served by the time the appeal is heard, and, especially, whether the appeal would be rendered nugatory in the absence of a grant of bail. I am acutely conscious that Mr Dowling’s right of appeal is of limited value if it cannot be vindicated before his sentence has been served: see Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711 at [6]. However, and contrary perhaps to the gravamen of some of Mr Dowling’s submissions, the position is quite different from a conviction and sentence imposed by the Local Court, where (speaking generally) the filing of an appeal against conviction operates as an automatic stay of execution, and requires the prosecutor to prove the case afresh and to the criminal standard: see Crimes (Appeal and Review) Act 2001 (NSW), ss 18 and 63. Mr Dowling’s appeal does not give rise to an automatic stay, and it is for him to establish appellable error.

Overview of the parties’ submissions

  1. Mr Dowling has served slightly less than 2 months of his sentence. His appeal is listed for hearing on 16 November 2018, which is to say, some four weeks’ time. His notice of appeal, which has been completed in hand, apparently without the assistance of a legal practitioner, states only that “the Judge erred in law, erred in fact and perceived bias”. Written submissions in support of the appeal, and the matter arising under the Constitution, are to be filed later this month. However, in support of his application for bail, Mr Dowling supplied the Court with 7 pages of submissions (which became exhibit B) and which he elaborated succinctly and with some force.

  2. Mr Dowling relied on R v Mahaffy, where there had been a grant of bail. He said that his situation was comparable. I disagree. Mahaffy was an unopposed application for bail by a contemnor who had already served some 8 months of a 10 month term of imprisonment, and whose appeal would not be heard in the immediate future. In the present case, Mr Dowling has served only a small fraction (around 1/10th) of his sentence and around 1/7th of the non-parole period, and the appeal will be heard in less than a month. Further, bail is opposed by the Prothonotary. That said, the Prothonotary made it plain that no flight risk was contended for, and Mr Dowling emphasised that he had a good history of turning up to Court while on bail (including when Wilson J reserved at the conclusion of his sentencing hearing, and when he was told to “come prepared for gaol on Wednesday” (T.103.36)). I accept those matters. The hearing took place before me on the basis that the issue was whether or not there should be a grant of bail, and that I would hear the parties further as to conditions if I formed the view that bail should be granted.

  3. Mr Dowling developed his written submissions orally, with concision and some effect. Mr Dowling does not dispute that he said the words on 3 February 2017 in the Registrar’s Court or subsequently he made publications contrary to the orders made later on that day by Beech-Jones J. Accordingly, his submissions were essentially legal, rather than factual.

  4. The essential reason for the Prothonotary’s opposition to the grant of bail was that no sufficient case had been made out. I accept the Prothonotary’s submission, although it will be plain from what follows that I do not accept all elements of it.

  5. I shall explain below why I formed the view that Mr Dowling has failed to establish any significant prosects of success on appeal which would leave him either at liberty or with a sentence of imprisonment only a small fraction of that which has been imposed, and why I was not persuaded that there is any other reason warranting the grant of bail. In those circumstances, it is not necessary to undertake any further analysis of the principles applicable to the jurisdiction to grant bail in a case such as this.

The implied freedom of political communication

  1. At the forefront of Mr Dowling’s defence and his grounds of appeal is his contention that his words fall within what he describes as the implied freedom of political communication stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25. In particular, he relies upon Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, which set aside Mr Coleman’s conviction and held that the relevant provision in a Queensland statute could not validly apply to insulting words uttered by him in the course of making statements concerning political or governmental matters. (In determining his application, I am exercising federal jurisdiction in a matter arising under the Constitution, and in the absence of notices under s 78B of the Judiciary Act 1903 (Cth). However, the relief sought by Mr Dowling is urgent relief of an interlocutory nature, within the meaning of s 78B(5), which qualifies the obligation in s 78B(1) not to proceed.)

  2. Wilson J addressed that submission at [38]–[58] of her conviction judgment. Her Honour referred at [49]–[51] to the distribution of notices pursuant to s 78B of the Judiciary Act 1903 (Cth) and the failure of any Attorney-General to participate in the proceedings. Her Honour then said that “as the lack of interest in the argument by the Attorneys-General may suggest, the defendant’s confidence in the availability of the constitutional defence is misplaced”: at [51]. Mr Dowling submitted that no such inference should be drawn from the attitude of the Attorneys-General, three of whom, so it was said, had indicated a willingness to participate in the event that the matter was taken on appeal. But I do not read her Honour as relying upon the stance taken by the Attorneys in evaluating the strength of Mr Dowling’s submission.

  3. Wilson J stated that the implied freedom of political communication operated as a constraint on legislative power (at [53]), and was not at large and differed from the broad freedom guaranteed under the Fifth Amendment of the Constitution of the United State of America, insofar as it was limited to what was necessary for the effective operation of the system of representative and responsible government provided for by the Constitution. Her Honour then referred to what had been said by McHugh J in Levy v Victoria (1997) 189 CLR 579 at 622; [1997] HCA 31 distinguishing the position in Australia from that in the United States, and by Spigelman CJ in John Fairfax Publications Pty Ltd v The Attorney General for the State of New South Wales [2000] NSWCA 198; 181 ALR 694 at [83] to the effect that the protection of freedom of communication was to be implied from the text and structure of the Constitution insofar as it made provision for representative government and that “the conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based”. Her Honour then said at [57]–[58]:

“Judicial officers perform a public role, but that role is not one which is part of or connected to the operation of constitutional representative government. Discussion of or comment upon the role of judges or the work that an individual judge has undertaken could not be regarded as communication concerning political or government matters relevant to constitutional government, so as to attract Constitutional protection.

The statements made by the defendant in court on 3 February 2017 (relevant to the first charge) and the content of the article published by him on 5 February 2017 (relevant to the second and third charges) cannot be characterised as communications which come within the scope of the implied freedom. The “defence” raised by the defendant is wholly illusory and nothing in Lange or Coleman v Power provides for such a defence in the present context”.

  1. Mr Dowling submitted that her Honour had erred in proceeding on the basis that the implied freedom did not extend to communications on the role of judges or the work that individual judges had undertaken. He pointed to what had been said by Deane and Toohey JJ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, especially at 75; [1992] HCA 46 and, more recently, by the Victorian Court of Appeal in Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161; (2003) 9 VR 1. In the latter case, Winneke ACJ said at [10] that:

“That does not mean that there can never be a discussion about a judicial officer which will, or might, be relevant to the system of representative and responsible government. It is not difficult to conceive of circumstances where discussion of the character and/or conduct (whether in or out of court) of a judicial officer is capable of amounting to a discussion on government or political matters in the relevant sense. This would particularly be so where the discussion impacts directly or indirectly on the executive government itself; whether in the exercise of its powers to appoint the officer, or in exercising or failing to exercise its powers to initiate the officer’s removal.”

  1. Mr Dowling said that he had referred to Nationwide News and Popovic (which is correct, see T.71–73) but neither case was mentioned in the judgment.

  2. Favourably to Mr Dowling, and as I indicated during argument to Mr Kell SC, I think it is reasonably arguable that the relationship between the so-called implied freedom of political communication and the three counts on which Mr Dowling has been convicted is a little more complex.

  3. First, I do not regard communications made in a State court, or concerning the judicial officers of a State court, as necessarily outside the scope of the implied freedom. Nationwide News needs to be read carefully, predating as it does the reformulation in Lange, but it concerned the conduct of a federal industrial tribunal. More relevantly, I respectfully agree with Winneke ACJ that political communication for the purposes of the immunity is capable of extending to the discussion of a judicial officer of a State court. I consider there is at least a reasonable argument that may be made contrary to the in limine rejection of the Lange “defence” in [57] reproduced above.

  4. Secondly, there is no direct analogue with the State statute which was held in Coleman v Power to be invalid insofar as it criminalised conduct of Mr Coleman: count 1 relates to conduct scandalising the court, while counts 2 and 3 relate to conduct in deliberate contravention of a court order. Neither turns directly on a statute.

  5. Thirdly, the Lange principle is not merely a limitation upon legislative competence. As Lange itself demonstrates, it impacts common law, insofar as the common law cannot be inconsistent with what is implied by the Constitution. “Of necessity, the common law must conform with the Constitution”: Lange at 566. Perhaps the most familiar example is the reasoning in Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42, when the joint judgment confirmed at [44] that:

“Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.” (Footnote omitted)

  1. The result in that appeal was a conclusion that there could be no general doctrine excluding from charitable purposes “political objects”, essentially because of a contrariety with the established system of government under the Constitution: see at [46]–[48].

  2. That said, as presently advised there seem to me to be very real difficulties facing a submission that the common law of contempt is required to be confined to accommodate the implied freedom in such a way that scandalising contempt by scurrilous abuse cannot be dealt with summarily. To be fair, given the way in which both sides approached the position, no submissions were made by either on this issue. However, my views are strengthened by the fact that the joint judgment in Gallagher observed at 243 that notwithstanding the much different constitutional position in the United States, the rules there were not dissimilar to those developed by the common law.

  3. Fourthly, in the case of counts 2 and 3, Mr Dowling was found to have deliberately contravened an order of a superior court. As will be seen below, there may be other bases on which it may be said the orders should not have been made, in addition to considerations flowing from Lange. However, it is well established that disobedience of the order of a superior court, even an order which should be set aside and (subsequently) has been set aside, will found a contempt. It is true that an order of an inferior court which is beyond jurisdiction is a nullity: Pelechowski v Registar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19. However, orders of superior courts are valid until set aside: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [11], and it remains a contempt to disobey orders that are subsequently set aside: see for example Matthews v Australian Securities and Investments Commission (2000) 97 FCR 396 at [20] and Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [17]. I accept that the susceptibility of an order to be set aside, particularly in circumstances where, as here, Mr Dowling maintains it should never have been made, may have a bearing on sentence. But that is not a defence to the charge of contempt. As presently advised, I cannot see how the implied freedom could have any bearing upon the basal characteristic of the orders of a superior court that they are to be obeyed unless and until they are set aside.

  4. For those reasons, it may be acknowledged that the submissions based on Lange raised by Mr Dowling may be of greater complexity than has hitherto been addressed. However, as presently advised, I am unpersuaded that there are any significant prospects of the submissions on that issue successfully impugning any of Mr Dowling’s convictions.

Failure to comply with r 40.7(3)

  1. Secondly, Mr Dowling turned to the failure of the form of sealed order served on him on 3 February 2017 to include the annotation in UCPR r 40.7(3), namely that the person served is liable to imprisonment or the sequestration of property where, inter alia the person disobeys the judgment. Wilson J, in her judgment on sentence, accepted the Prothonotary’s submission that the rule did not apply to the orders made by Beech-Jones J because they were general orders rather than being specifically directed to the contemnor: at [13] and [14]. The Crown Advocate submitted that her Honour’s reasons (which seem to have adopted a submission made by the Crown Advocate at first instance (transcript, 17 August 2018, T.5.15–6.22, T.57.36–58.34) were persuasive.

  2. As I indicated during the hearing, given the nature of the application it seemed appropriate for me, in order to assess the strength of Mr Dowling’s appeal, to identify possible bases of challenge. The Prothonotary’s submission is that there is an implied exception from the obligations of r 40.7 in addition to the specific dispensation power in r 40.7(5) and the general dispensation power (and presumably also the inherent dispensation power referred to in Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93 at 95; 44 ER 324 at 325). It seems to be that it is, to say the least, reasonably arguable that there is no such implied exception, and that in accordance with the terms of that rule, a judgment is not enforceable by committal when the judgment requires a person to abstain from doing an act and the person disobeys the judgment if the notice required by r 40.7(3) is not contained on the sealed copy of the judgment.

  3. However, the sentencing judgment went on at [15] to say that in any event her Honour would have exercised the dispensing power provided by r40.7(5), on the basis of the fact that in earlier proceedings Mr Dowling had been served with orders with the appropriate notice, and because her Honour found that he well appreciated that breaching the orders carried the risk of imprisonment. I did not understand any submissions to have been made directed to challenging this aspect of her Honour’s judgment. Further, Mr Dowling’s points made on r 40.7 apply only to counts 2 and 3, and not to the conduct of scandalising the Court contained in count 1.

Other difficulties with the orders made on 3 February 2017

  1. Thirdly, it is possible that there are difficulties in the orders made by Beech-Jones J on 3 February 2017. So far as I can see, the first order was a suppression order (preventing disclosure) while the second order was a non-publication order (merely preventing publication). It seems that the first order was vacated and replaced by two further non-publication orders on 8 February 2017: see Jane Doe 1 v Dowling [2017] NSWSC 57. However, I understood from what I was told by the Crown Advocate that the charges related to the non-compliance with the unamended orders. Assuming that to be so, the first order, as originally made, was very widely framed. The order on its face extends to all 40 or so people in the Court who may have heard Mr Dowling say what he said. Although those people would almost certainly have no awareness of the non-disclosure order made shortly thereafter by Beech-Jones J, they would be in breach of it if they disclosed it by speaking  to a friend or professional colleague or family member of what they had heard in Court that morning. Of course, they would all have a good defence to a charge of contempt if they were unaware of the order, but at least on one view this suggests the order was too widely expressed. (To be fair, my working assumption is that it was made urgently, and ex parte, to a Duty Judge sitting in what in all probability was a busy list.)

  2. However, for the reasons already mentioned, even if the orders should not have been made in the terms that they were made on 3 February 2017, that is not in and of itself an answer to Mr Dowling’s guilt for wilful disobedience of them.

Other matters bearing on conviction

  1. Mr Dowling relied upon what had been said by McCallum J in declining to recuse herself in Capilano Honey Ltd v Dowling [2018] NSWSC 876 at [20]. His submission was that naming her Honour as a suspected paedophile not leading to her recusing herself was inconsistent with the conduct the subject of the charges amounting to a contempt. I do not accept the submission. The same submission was made about the language used by Mr Danny Lim whose appeal against conviction was allowed in Danny Lim v R [2017] NSWDC 231. I do not accept this submission, either. Neither case dealt with whether the conduct was a contempt based on scandalous statements made in Court. For the same reason, I do not accept Mr Dowling’s submissions based on an exchange at pp. 20 – 21of the transcript before Wilson J.

  2. Mr Dowling also advanced submissions that Wilson J had acted in a way which gave way to an apprehension of bias. His written submissions referred to her Honour stopping his cross-examination of a witness and her qualified statement that he might have a mental disorder. His written and oral submissions focussed upon steps which are said to have been taken by the Chief Justice and the Chief Executive Officer of this Court following Mr Dowling sending an email to a large number of judicial officers in late 2016, which ultimately resulted in a federal prosecution, which was withdrawn. He referred to his application that he be tried before a judge from inter-State.

  3. I do not consider that any of these submissions gives rise to any strong ground of appeal. I have read the transcript of 17 August 2018, and do not regard her Honour’s interventions in Mr Dowling’s cross-examination as inappropriate. The relevant pages are 11–26. There are a large number of judicial interventions, but they seem to me to be well-founded. Such arguments as Mr Dowling has are essentially submissions of law, rather than challenges to the primary facts, and his cross-examination was much less focussed than his legal submissions. It is also true that the cross-examination concluded with personal exchanges between her Honour and Mr Dowling. Even so, I am presently unpersuaded that there was a basis for an apprehension of bias. Although I heard the bail application from around 10.45am until around 1.30pm, there were no written nor oral submissions directed in any detail to this.

  4. Instead, Mr Dowling focussed his attention upon the investigation which led to the commencing of proceedings against him by, as I understood it, the Commonwealth Director of Public Prosecutions. I did not understand it to have been submitted that Wilson J was personally involved in any way in a decision to investigate or prosecute Mr Dowling. I do not regard those submissions as having any merit whatsoever.

Appeal against sentence

  1. Mr Dowling submits that the sentence is excessive. That submission is not without force. However, it is to be borne in mind that this is far from the first occasion in which Mr Dowling has been found guilty of contempts of this nature. Very regrettably, Mr Dowling has incurred a series of penalties of increasing severity for ongoing conduct in breach of court orders. Most recently, following earlier convictions in which a fine was imposed, on 17 August 2018, Mr Dowling was sentenced to 4 months imprisonment: Doe v Dowling [2017] NSWSC 1037. I understand him to have served the entirety of that term. Mr Dowling now submits (as he had before Wilson J: see T.19.40) that he will appeal that conviction and sentence; that may be so, but once again, the earlier conviction and sentence stand until and unless they are set aside.

  2. Wilson J addressed the earlier sentence of imprisonment, when dealing with Mr Dowling’s awareness of the consequences of his conduct, at [30]:

“Although the contemnor’s evidence on sentence on 17 August 2018 was given long after his commission of these offences, it is clear from that evidence (TOS 33:41) that the contemnor regards imprisonment as an expected evil of the justified crusade he regards himself as being on. Having regard to his not inconsiderable experience of contempt proceedings, I am satisfied beyond reasonable doubt that this was also his view in February 2017”.

Further, the primary judge found no indication of contrition, nor was there any suggestion, or evidence, or submissions to that effect in the application heard by me.

  1. A sentence of imprisonment is the most serious punishment that a court may impose following a conviction for contempt. Even if (and to be clear I do not express any view) it be established that the sentence imposed by Wilson J was excessive, or that in some other way her exercise of discretion miscarried, such that it falls to be re-exercised, I am unpersuaded that on appeal, the Court of Appeal would exercise the sentencing discretion in a way which would render Mr Dowling’s appeal nugatory unless bail were granted to him. A less roundabout way of making that point is that, in the particular circumstances of Mr Dowling’s case, I do not think that there is any real prospect of exercise of discretion which would result in a sentence of less than 3 months imprisonment. I reach that conclusion bearing in mind the various arguments mentioned above which may have scope to call into question whether the orders made on 3 February 2017 should have been made.

Other reasons for the grant of bail

  1. Mr Dowling also submitted that the preparation and conduct of his appeal would be facilitated by the grant of bail. I accept the submission. However, I am unpersuaded that the appeal cannot fairly proceed without a grant of bail. Mr Dowling’s submissions were made succinctly and effectively, without undue emotion, and he is plainly moderately familiar with some of the statute law and judge made law relevant to his appeal. I did not understand him to say that it would be impossible for him to prosecute his appeal without a grant of bail, although he did say his preparation and ability to represent himself would be undermined. Having heard and read his submissions, and bearing in mind the appointment of an amicus, I am not persuaded that there should be a grant of bail in order that Mr Dowling can prosecute his appeal. Although he complained that the appeal had been set down speedily and was concerned that other State and the Commonwealth Attorneys-General might have insufficient time to intervene, there is no reason to think it likely that any would do so, and it is entirely appropriate that Mr Dowling’s appeal be given a high level of expedition (which both it, and his bail application, have received).

The appointment of an amicus curiae

  1. The matters referred to above demonstrate that there are matters which are not without importance or legal complexity which will arise on the hearing of Mr Dowling’s appeal. From time to time, Mr Dowling has retained legal practitioners to act for him, although there has been a history of his terminating his retainer. He explained to me that those former lawyers had been unwilling to “put the whole story” in their submissions. I pointed out to him that the reason for their reticence may have been their professional and ethical obligations only to make serious allegations with a proper foundation. Be that as it may, I raised with the parties the possibility of appointing an amicus to assist the Court. Both parties embraced that suggestion. This seems to be a case where the Court of Appeal would be assisted by an amicus. I do not understand that any existing order would prevent the Registrar from supplying to the amicus copies of the judgments on conviction and sentence.

  2. For those reasons, I refused bail but directed the Registrar to appoint an amicus curiae.

**********

Amendments

17 October 2018 - [7] and [9] - citation of Act, "Non-Publication" changed to "Non-publication"


[18] - "Colman's" changed to "Coleman's"


[24] - "[50]" changed to "[57]"


[34] - "of it" after "speaking" removed


[36] - "Dowlings'" changed to "Dowling's"

19 October 2018 - [7] - "his counsel" changed to "her counsel"

Decision last updated: 19 October 2018

Most Recent Citation