DPP v Johnson
[2002] VSC 583
•20 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5479 of 2002
No. 5477 of 2002
No. 5476 of 2002
No. 5478 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATHEW CHARLES JOHNSON |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN JASON SONNET |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON BRIAN PAISLEY |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN WENITONG |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8-11, 14 OCTOBER 2002 | |
DATE OF JUDGMENT: | 20 DECEMBER 2002 | |
CASE MAY BE CITED AS: | DPP v JOHNSON & ORS | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 583 | |
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contempt – Intention or tendency to interfere with the administration of justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Ryan | Office of Public Prosecutions |
| For Mr Johnson | Mr R. Sarah | |
| For Mr Sonnet | Mr G. Meredith | Reiner Martini |
| For Mr Paisley | Mr M. Taft | Starry Myall |
| For Mr Wenitong | Mr A. Lewis | Lethbridges |
HIS HONOUR:
Preliminary
This is the determination of proceedings for contempt of court brought pursuant to Order 75 of Chapter 1 of the Rules of the Supreme Court. The proceedings arise out of the trial of the respondents Jason Brian Paisley, Stephen Wenitong, Mathew Charles Johnson and Sean Jason Sonnet, together with another man, John Wallace Lindrea, before the County Court at Melbourne in September 2000.
The accused in that trial were arraigned on charges arising out of incidents which occurred at Barwon Prison on 1 October 1998. It was alleged that they:
(a)intentionally and without lawful excuse damaged a glass window belonging to Her Majesty; and
(b)without lawful excuse intentionally caused serious injury to Gregory John Brazel.
The offences forming the subject matter of the trial arose out of the breaking of a security window onto an exercise yard in which Brazel was situated and the subsequent severe bashing of Brazel after a group of men entered the yard through the broken window.
All the accused pleaded not guilty and on 27 September 2000 the jury acquitted Lindrea and Wenitong on all counts and the other accused on the first count. Paisley, Sonnet and Johnson were convicted on the second count. These convictions were in turn set aside by the Court of Appeal on 20 December 2001[1] and a retrial was ordered.
[1]R v Johnson, Sonnet and Paisley [2001] VSCA 242
The matters first came before the learned trial Judge on 31 July 2000. Brazel was not then a witness on the presentment before the Court and it appears that he had not at that time made a statement to the police. The Crown Prosecutor told the Court it was not proposed to call Brazel as a witness. Defence counsel sought to have the Crown call him. After a short adjournment the Crown Prosecutor informed the Court that Brazel had indicated he would make a statement and an adjournment of the trial was granted. Thereafter Brazel made a statement and the respondent Wenitong was presented as an additional accused on the basis of such statement. The matter came back on for hearing on 4 September 2000 and the accused were arraigned and a jury was empanelled.
In the event the conduct of the respondents degenerated during the course of the trial into a sequence of gross contempts of court. These contempts included assault upon a juror, statements to the juror aggravating such assault, death threats to a witness, and grossly offensive and insulting behaviour and language to the learned trial Judge, a witness and counsel. The contempts are admitted as particularised in the originating motions and it is quite clear that each of them constituted contempts in the face of the court within the meaning of Order 75.[2]
[2]As to which see Registrar Court of Appeal v Collins (1982) 1 NSWLR 682.
Before setting out the nature of the contempts in further detail, however, it is appropriate to identify the central notion of contempt of court and to elaborate briefly some consequences of that notion for the proper characterisation and evaluation of the conduct of each of the respondents in this matter. In Lane v Registrar of the Supreme Court of New South Wales[3] the High Court approved the statement of Cussen J in Re Dunn; Re Aspinall[4] that the essence of the offence is:
"action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense."
[3](1981) 55 ALJR 529 at 534
[4](1906) VLR 493 at 497
It follows that as the report of the Australian Law Reform Commission with respect to Contempt states:
"An act demonstrating contempt, in the vernacular sense, for a parliament or a court may constitute contempt, in the legal sense, of the parliament or court and may therefore attract sanctions under contempt law. An example is the act of taking off one's clothes in a courtroom. But there are many situations in which the manifestation of an attitude of contempt will not constitute legal contempt and, conversely, contempt in the legal sense can sometimes be proved even though the person found to be responsible did not hold the relevant court 'in contempt'."[5]
[5]Australian Law Reform Commission Report No. 35 Contempt, p.16 omitting citations.
Conduct will be sufficient to amount to contempt of court if in the whole of the circumstances it has the inherent tendency as a matter of practical reality to interfere with the administration of justice. If however the motive or dominant motive for the conduct can be proved to have been one of interference directly with the administration of justice the contempt will be a more serious one.[6]
[6]See Registrar Supreme Court v McPherson (1980) 1 NSWLR 688 per Moffit P and Hope JA at 697, 698 and per Glass J at 711.
The onus of proof with respect to contempt proceedings is beyond reasonable doubt.[7] As the High Court has said: "Uncertain inferences from inexact proof will not support such a charge."[8]
[7]Consolidated Press Ltd v Macrae (1955) 93 CLR 325 at 333.
[8]Ibid per Dixon CJ, Kitto and Taylor JJ.
A plea of guilty constitutes no more than an admission of the essential facts necessary to constitute an offence.[9] It does not amount to an admission of a particular intent where the offence may be committed with one or more forms of mens rea. In Law v Deed[10] Bray CJ said at 377:
"The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone."
[9]R v Inglis (1917) VLR 672; R v Hill (1979) VR 311
[10](1970) SASR 374
In such a case elements necessary to establish aggravating circumstances of wilfulness must be proved to the criminal standard. The Court may not take facts into account in a way adverse to the respondents unless these facts have been established beyond reasonable doubt.[11]
[11]R v Storey (1998) 1 VR 389.
Certain consequences flow from the essential notion of contempt of court for the evaluation of the contempts which are the subject of these proceedings.
(a)In so far as such contempts comprised direct interference with the function of the jury they constituted contempts of the most serious kind. Jurors are compelled by law to undertake jury service. They do so as representatives of the community and they do so on the basis that the law will adequately protect them in the discharge of a function which is a corner-stone of the criminal justice system. Such function will necessarily be a confronting and at times unpleasant task for some members of the public, but it is not part of the expectation of the law or the public that jurors be subjected to the treatment suffered in this case. There is a fundamental public interest in protecting the proper and safe exercise by jurors of their functions.
(b)The making of a death threat and threats of violence to a witness also strike at the heart of the trial process. It is essential that those called on to give evidence in criminal trials can do so without fear of threat or improper intimidation. The failure by a witness to give relevant evidence when called upon to do so in a criminal trial will itself constitute a contempt of court. The law must adequately protect those required by it to give evidence and it must protect them whatever their character may be and whatever their prior conduct may have been.
(c)Insulting and offensive behaviour towards the learned trial Judge and counsel constitutes a contempt not because of the personal effect it may have upon the individuals to whom it is directed but because it challenges the authority of the Court, interrupts its proceedings and detracts from the capacity of the Court to conduct proceedings which are dispassionate and rational both in fact and in appearance. Proceedings which are seen to be appropriate are fundamentally necessary to public confidence in the courts.
In Rich v Attorney-General (Vic.)[12] Callaway JA approved the following statement by Byrne J at first instance:
[12]103 A Crim R 261 at 283
"Contempt of this kind is treated seriously because it often happens that a decision goes against one or other party in a trial. The unsuccessful party must accept the decision if the integrity of the trial process is to be maintained. This is not, as has been observed, out of some regard for the dignity of the court or the person of the judge, but to prevent undue interference with the administration of justice. Such interference offends the public good by weakening the authority of the court and its task of doing justice between members of the public or, in the criminal process, between the State and the accused. See generally Broken Hill Proprietary Co Ltd v. Dagi at 154-157, per Tadgell JA; at 193-194, per Hayne JA."
(d)Insulting and offensive behaviour towards a witness or towards the jury threatens the dispassionate and proper fulfilment of their respective functions. It also challenges the authority of the Court, interrupts proceedings and potentially detracts from public confidence in the proceedings.
(e)Each of the above categories of contempt may be regarded as particularly grave where it can be seen that they are either intended to compromise or manipulate a trial with which the contemnor is unsatisfied, or where they have the obvious tendency to compromise the effective conclusion of such a trial. Where a protracted sequence of contempts occurs (as in this case) it may be more readily open to conclude that the purpose or manifest tendency of the contempts was to render or tend to render the effective completion of the trial impossible. It follows that individual actions which might otherwise not be regarded as striking at the heart of the proceedings may potentially be shown to be properly characterised in this way. In the case of Jesus Aquarius[13] Roskill LJ described a process of continuing disruption by the appellant and said:
"So long as there are courts, those courts have to be free to do the job entrusted to them by statute and at common law freely and without interruption. If persons seek to disrupt them and make the trial difficult or indeed impossible, then the Court in the interests of the public and the interests of the free administration of justice – this is nothing whatever to do with the dignity of a particular recorder or a particular judge – has to so act as to make it plain that that sort of conduct will not be tolerated."
(f)Conversely an action or statement which is or might be a spontaneous reaction of frustration and anger at the course of proceedings cannot be regarded as necessarily meriting a penalty as severe as might otherwise be applicable. In Morrisv Crown Office[14] Davies LJ said:
"On occasions one has the misfortune to encounter someone who makes a disturbance in court. Usually, when than happens it is a case of a disappointed litigant who, from a sense of rage or disappointment at the result of his case, loses control of himself and gives vent to his feelings by an outburst either by word of mouth or physically. That is a situation which has to be dealt with according to its seriousness. He may be fined, or, in serious cases, he may be sent to prison."
[13](1974) 59 Cr.App.R 65.
[14](1970) 2 QB 114 at 127.
The Contempts
It is necessary to deal with each charge of contempt separately. It is inappropriate to treat them on a global basis. See the observations of Winneke P at paragraph 45 in Rich.
Mr Ryan who appeared to prosecute the proceedings submitted to the Court a useful spreadsheet in which the sequence of the offences is tabulated. The offences arose out of 12 separate incidents.
The First Incident
The first incident involved Paisley, Sonnet and Johnson. On 13 September 2000 (day 7 of the trial) Brazel resumed his evidence having previously given evidence on 5, 6, 7 and 12 September 2000. During the course of the morning a series of noises and interjections emanated from the dock. In particular Sonnet made a series of honking noises which were subsequently suggested to the Court to be a call used in prison to identify an informer. At 11.53 a.m. the learned trial Judge ordered the removal of Sonnet from participation in the trial until further order. This led to the following exchange at 11.54 a.m.:
"Sonnet:
'Good on you, you fuckin' dog.'
His Honour:
'Just hold it.'
Sonnet:
'You're a rapist.'
His Honour:
'Just hold it.'
Sonnet:
'You're a rapist.'
Johnson:
'I'm going too, Your Honour.'
Sonnet:
'Solo service station bandit, rapist.'
Johnson:
'I'll have no part in this fuckin' conspiracy.'
Sonnet:
'… contract killer.'
Johnson:
'You've let him get away with too much …'
Sonnet:
'He's a contract killer. Look at him. Uh, uh, uh. Fucking skunk. Get up and say what really happened Greg, ya skunk.'
Paisley:
'(Indecipherable).'
The witness:
'Well put up your convictions before this jury.'
His Honour:
'Just, just, just hold it, will you …'
Paisley:
'He's molested two kids.'
Johnson:
'Sex offender.'
Paisley:
'He's molested two kids.'
Sonnet:
'Contract killer.'
His Honour:
'Just remove Johnson … remove Johnson and Sonnet.'
Sonnet:
'Ahh, you're taking sides with the skunk.'
Johnson:
'He's continually stood over you this whole trial.'
Paisley:
'No, we're goin'.'
Sonnet:
'He's stood over you and you just let him get away with it. Good on you, Greggy, you skunk. You're a Crown witness, Greg. Kid fucker.'
Paisley:
'(Indecipherable). I'm telling you he's no good.'
Sonnet:
'He's a skunk. Kid fucker.'
Paisley:
'He likes to kill women, likes to kill women, he's a nice bloke.'
Sonnet:
'See you later, kid fucker. Hey Greg, confess to another murder, you fucking dog. Fucking skunk. (Long pause). Go back to Barwon.'
[Sonnet and Johnson were removed from the court, and Paisley had also left the courtroom. Paisley was brought back into the court, being held by security staff.]
Paisley:
'See this, see this. Make a mockery (indecipherable).'
Counsel representing Paisley:
'Can I just approach the dock. Your Honour?'
Paisley:
'I tell Your Honour, if you want to …'
His Honour:
'Just, just, just have a seat, will you.'
Paisley:
'If you want to do this, I'll jump the dock and you're going to have to throw me in, because this is a load of – this is a mockery. Sorry for wasting your time, ladies and gentlemen, you shouldn't have to … know what I mean?'
[His Honour was attempting to talk over Paisley, and then said 'Just hold it, sit down.' Either Sonnet or Johnson or both could be heard calling out from beyond the court, although the comments were mainly indecipherable.]
Paisley:
'It's no nothing, right, Your Honour. He's been … He's goin' on …'
His Honour:
'Do you want to be excluded also?'
Paisley:
'Well, all of us …'
Wenitong:
'I wish to be excluded too Your Honour.'
Paisley:
'… all of us, we are not taking part in this. This is a mockery. He, he is getting away with a lot of things, he made …'
His Honour:
'Okay …'
Paisley:
'Can you just hear me out for one minute please?'
His Honour:
'Alright, would you remove Paisley, please.'
Paisley:
'One minute. He makes … He makes allegations towards us. We're all goin', we're all goin'.'
[Paisley was removed from the court.]
Wenitong:
'I wish to be removed too Your Honour.'
His Honour:
'Wenitong. Wenitong.'
Paisley [from outside the courtroom]:
'We're all goin'. No trial.'
[Wenitong was removed from the court.]
Paisley [from outside the courtroom]:
'Greg … Greg Brazel roots kids.'
His Honour:
'Do you want to stay?'
Lindrea:
'Yeah, I'm goin'.'
Paisley [from outside the courtroom]:
'(Indecipherable) … fuckin' allegations.'
His Honour:
'It's your choice.'
Paisley [from outside the courtroom]:
'Fuckin' smartarse.'
A voice from outside the courtroom:
'We’re not guilty. Not guilty.'
[Lindrea was removed from the court.]
Paisley [from outside the courtroom]:
'Just remember, that any fuckin' allegations of sexual penetration of a minor …'
A voice from outside the courtroom:
'Roots kids.'
Paisley [from outside the courtroom]:
'… Greg Brazel. Yes, 'cause it's him (?) …'
His Honour:
'I think you can go and have a cup of tea.'
A voice from outside the courtroom:
'I'm indebted Fagan, you fuckin' dog'."
The above transcript includes some comments which cannot be attributed beyond reasonable doubt to particular accused. Nevertheless, they are relevant to the context created for subsequent events.
The first incident comprised contempts of court by Paisley, Sonnet and Johnson. As the particulars contained in the relevant originating motions allege these contempts consisted of offensive and abusive language on the part of Paisley and Sonnet to the witness Brazel having the effect of disrupting the proceedings and offensive and abusive language to the learned trial Judge on the part of Johnson having the effect of disrupting the proceedings. I make the following further findings concerning the first incident:
(a)Sonnet commences the outburst. His statements are directed firstly to abusing Brazel and secondly to asserting that the Judge had sided with Brazel.
(b)Johnson principally asserts that the learned trial Judge has let Brazel get away with too much. He adds one insult to Brazel.
(c)Paisley joins in the abuse of Brazel and then asserts that the trial is a mockery and that Brazel is getting away with a lot of things.
(d)Paisley's comments are made after a first indecipherable comment made by him to which Brazel responded "Well put up your convictions before this jury."
(e)Both Brazel and the learned trial Judge were abused in extended crude and obscene terms.
(f)The outburst occurred consequent upon a ruling which reduced the capacity of the accused and in particular Sonnet to participate in the trial.
(g)The conduct which led to Sonnet being excluded from the trial and in turn to the outburst the subject of the first incident occurred in circumstances of continuing confrontation between Brazel and the accused to which I will return in greater detail.
(h)The first incident occurred in the presence of both the jury and Brazel.
The circumstances of continuing confrontation between Brazel and the accused which I have referred to above occurred during the extended cross-examination of Brazel. The course of this cross-examination and the principal difficulties which arose during it are detailed in the judgment of Phillips CJ at paragraphs 73-97 of the judgment in the Court of Appeal. Prior to the first incident these events had led to a series of applications to discharge the jury being made on behalf of various accused. These applications were based principally upon statements by Brazel that:
(a) the criminal records of the accused were equivalent to that of Brazel;
(b)the accused were shackled, confined with body belts and held as high security prisoners;
(c)the accused would elect to stand mute;
(d)they would stand mute because this was the course adopted by Brazel and others when they knew they were guilty;
(e)whereas Paisley had acted under duress the other accused were not only responsible but had coerced Paisley into bashing Brazel; and
(f) counsel for the accused were incompetent.
The first incident also occurred in circumstances where, as the Court of Appeal has held, the learned trial Judge had failed to adequately direct and control Brazel in the course of his evidence, a task which the transcript and video demonstrate was one of considerable difficulty.
As a consequence the contempt occurred in circumstances where the Court of Appeal has held that the trial had already miscarried and an application for discharge of the jury should have been accepted. The most significant of these matters were summarised in the Court of Appeal by Charles and Chernov JJA as follows at paragraph 102 of the judgment:
"But we think with great respect, that it is unfortunate that the firm directions which his Honour gave Brazel after lunch on the fourth day of the trial had not been administered at the very outset of his evidence, nearly two court days beforehand. From a very early point in his evidence Brazel misbehaved in answering counsel’s questions, suffering little reproof from the judge for so doing. In our view, with respect, much stronger control could, and should, have been exercised by his Honour. In any event we agree that the third application for discharge of the jury made by all counsel should have succeeded, there being at that time the relevant high degree of necessity, a fair trial of the applicants having been rendered impossible."
The circumstances of confrontation with Brazel which I have referred to above may have had some features which affected individual accused differently (e.g. frustration on the part of Johnson at abuse of his counsel and frustration on the part of other accused at the course of events during the extended cross-examination carried on by counsel for Johnson). The fundamental matters which formed the basis of applications for discharge of the jury were, however, prejudicial to all accused. Moreover Brazel's conduct frustrated and infuriated the accused because, first, he appeared to hold his own during protracted and extended cross-examination relating to his criminal history and character, and, second, he behaved in a manner which was perceived by the accused as manipulative. Whether tacitly discouraged, or expressly directed not to, Brazel had made speeches, argued procedural grounds, commented on the course and purpose of cross-examination, and elaborated and commented on answers given by him in an unresponsive and prejudicial manner (whether from motives of self-justification, self indulgence or perhaps by reason of a private wish to abort the trial). I accept that all of the incidents of contempt before me can be said to have arisen out of or in the course of these underlying circumstances of confrontation. This does not excuse them but to some extent it may be said to explain them and in particular the first of them.
The Second Incident
The second incident involved Paisley and occurred on 14 September 2000, being the day after the first incident and the eighth day of the trial. The trial resumed at 11.05 a.m. in the absence of the jury, Johnson and Sonnet. Brazel was recalled and made complaints (which may well have been false) that he had been abused and threatened by the accused whilst he was in a prison vehicle being taken to Court. The alleged threats included that the accused intended to find out where Brazel's recently deceased family members were buried, dig them up and do "sexual things to them". The theme of these threats is relevant to subsequent exchanges.
The jury was brought into Court at 11.16 a.m. At approximately 11.26 a.m. Paisley, using an overarm motion with his left arm, threw a partly closed plastic bag containing human excrement into the jury box ("the second incident"). The bag struck one of the jurors.
The second incident constituted a contempt of court by Paisley and I make the following further findings with respect to it:
(a) It constituted a direct and serious assault upon a member of the jury.
(b)It was carried out in a manner which was highly offensive and in a manner inherently likely to cause fear and loathing among the jury.
(c)It brought the accused into direct confrontation with the jury who were not of course responsible for the course of the trial.
(d)The second incident was totally disproportionate to the underlying circumstances of confrontation.
(e)It occurred in the presence of both the jury and the witness Brazel.
The Third Incident
The third incident involved Wenitong. After the second incident Wenitong protested that his trial could not be fair as a result of such incident. After further discussion the matter was adjourned for a short time. When the trial resumed counsel for Wenitong applied for him to be discharged from the trial. The learned trial Judge refused the application. Counsel representing Wenitong indicated that Wenitong did not desire to be present at the trial and desired to take no further part in the trial. This led to the exchange comprising the third incident and commencing at 12.42 p.m.:
"His Honour:
'Well, he said that, and he said that here. He said it before and he said it again. He's free to do that. That's his choice.'
Wenitong:
'Well, you ought to be ashamed of yourself (indecipherable).'
[There was further discussion regarding the grounds for the discharge application; His Honour refused the application and said '… I notice that your client is saying that he doesn't want to remain here …']
Wenitong:
'Not in your presence anyway you silly old fucking tampering dog. You and Brazel should have a DNA test because you're his fucking father, that's why you're looking after him in court and letting him run the fuckin' show …'
His Honour:
'… and I'll …'
Wenitong:
'… Want to look after him, soon as someone says something from here you fuckin' jump down their throats and let him carry on like …'
His Honour:
'Irrespective …'
Wenitong:
'… he's the fuckin judge …'
His Honour:
'Irrespective of his wishes …'
Wenitong:
'Chuck that fuckin' robe off and fuck off behind the Bench, you fuckin' silly old dog.'
His Honour:
'… Mr Lewis, I would have excluded him anyway because, on my observations of his conduct …'
Wenitong:
'(Indecipherable) You silly old fuckin' tamperer.'
His Honour:
'… he was complicit and for that reason I direct that he be excluded from the trial, applying the Vernell tests. Would you remove Wenitong, please'."
The third incident constituted a contempt of court by Wenitong. I further find:
(a)This is the first incident in which Wenitong was involved.
(b)Wenitong's statements were inexcusably offensive and insulting to the Court both in their language and by reason of the allegations that the Judge was subordinate to Brazel.
(c)Nevertheless, it can be said that they occurred in circumstances of high emotion and in reaction to the conduct of Brazel, the course of the trial, and the conduct of Paisley.
(d)I accept that Wenitong's statements constituted a spontaneous outburst of anger and frustration following the rejection of the application made by Wenitong's counsel to the learned trial Judge that Wenitong be discharged from the trial.
(e)The third incident occurred in the absence of both the jury and the witness Brazel.
The Fourth Incident
The fourth incident involved Johnson and Sonnet. It occurred four days after the third incident. On that day the learned trial Judge announced that the accused were in a separate courtroom, being Court 4 of the County Court, and that Court 4 would have sound and vision from Court 18 (in which the trial was proceeding). The learned trial Judge adjourned the Court for a short time to enable technical arrangements to be made. When the hearing resumed the following ensued at approximately 11.32 a.m.
"Sonnet [singing]:
'Go Fagan, go Fagan.'
[His Honour asked for the witness to be brought in.]
Sonnet:
'Bring in the dog.'
Johnson:
'Bombs away.'
Sonnet:
'Bring in the sex offender.'
[Sonnet made a noise in his throat.]
[Paisley raised another matter with the judge but desisted when the witness was brought into Court 18. The witness raised an issue with His Honour regarding threats that he had previously alleged some of the accused had made regarding his family, and requested prohibition of publication of those threats and there was some discussion. His Honour asked a question of the witness.]
The witness:
'The accusation there I brought to His Honour, I didn't put in full detail. It was in relation to – they were going to find the whereabouts of the graves of recently departed loved ones and that they would desecrate them, dig up the bodies and …'
Johnson:
'Fuck 'em.'
The witness:
'… yes, as the person just said.'
Sonnet:
'Ah Greg, we're indebted.'
His Honour:
'Okay, now, those are the matters that you want to …'
Sonnet:
''s alright for you to say it about everyone else's family, you fuckin' dog. You don't like it when someone says it to you, do you, Brazel, you kid fucker.'
His Honour:
'Is that what you want …'
Sonnet:
'You're a career rapist.'
His Honour:
'That's the material you want prohibited, is it?'
Paisley:
'Indebted.'
The witness:
'It is.'
His Honour:
'Okay.'
Sonnet:
'Career rapist, Brazel.'
The witness:
'Your Honour, is this going to be allowed to occur …'
His Honour:
'No …'
Johnson:
'Necrophiliac, you dog.'
The witness:
'… or is it going to …'
His Honour:
'I will switch, switch all sound off if they're …'
Paisley:
'Your Honour, I've got to cross-examinate, so I (indecipherable).'
Sonnet:
'No signature, I refute it Greg.'
Paisley:
'I just want a fair opportunity to cross-examine a Crown witness, and that's my, that's my two cents worth.'
Johnson:
'Indebted.'
Sonnet:
'Indebted.'
Paisley:
'I just …'
His Honour:
'Alright, well, look, I just …'
Sonnet:
'Just turn us off as usual.'
His Honour:
'… I warn you people that if you continue to behave like that …'
Sonnet:
'We'll be indebted.'
His Honour:
'… I have no option but to exclude you altogether from the proceedings, even from the room you are in now.'
Paisley:
'Well …'
Johnson:
'We refute that.'
His Honour:
'I will do that …'
Wenitong:
'We’ll be indebted.'
Sonnet:
'We'll be indebted.'
His Honour:
'Well I will do that.'
Paisley:
'Well alright, can we just get on with it, please.'
Sonnet:
'Very important. Under your direction.'
His Honour:
'Alright. Bring the jury back, if you will.'
The witness:
'Your Honour, without saying, if there is one insult to me or my family, one, I'm going to leave this courtroom, Your Honour.'
His Honour:
'There you go.'
Paisley:
'Just, I'd ask this witness to speak into the mike, when I cross-examine him, please.'
His Honour:
'Would you bring the jury in please.'
Paisley:
'Crown witness Brazel'."
The fourth incident comprised contempts of court by Sonnet and Johnson. I make the following further findings:
(a) The remarks of both Sonnet and Johnson were highly abusive and offensive.
(b) They were not initially provoked by a particular incident.
(c)They demonstrate a clear intention to confront and intimidate the witness.
(d) They took place in the absence of the jury but in the presence of the witness.
The Fifth Incident
The fifth incident involved Johnson and Paisley. It also occurred on 18 September 2000. The jury was brought back into Court 18 at 11.36 a.m. After some cross-examination of Brazel by Paisley, Paisley requested that the jury and the witness leave the Court. The jury and the witness left the Court at 11.45 a.m. Paisley then requested access to the prison file of the witness. This occasioned argument and the jury was brought into Court to be excused until the afternoon session of the trial. As the jury then left Court 18, Johnson called out "Hi, Camilleri" and Paisley called out "Juror Camilleri … Camilleri." Paisley then called out "Hello. You fuckin' cocksucker."
The fifth incident comprised contempts of court by Johnson and Paisley. I make the following further findings with respect to the fifth incident.
(a)Camilleri was the juror who had been struck by the bag of excrement thrown by Paisley in the second incident.
(b)The calling out of Camilleri's name aggravated the circumstances created by the second incident in which the juror was assaulted.
(c)Following evidence subsequently given by the learned trial Judge's tipstaff as to the effect of these two events upon the juror, the juror was discharged from further duty. It was entirely foreseeable that the fifth incident when added to the second incident might have a serious impact upon the juror concerned.
(d)The calling to and naming of the juror was a direct and serious interference in the independence and proper functioning of the jury.
(e)The incident occurred both in the presence of the jury and the witness Brazel.
The Sixth Incident
After the luncheon adjournment on 18 September, the learned trial Judge directed that the audio link between Court 4 and Court 18 be discontinued until further notice. This led to abuse of the learned trial Judge by Sonnet, Johnson and Wenitong in the following terms commencing at 2.27 p.m.:
"Sonnet:
'When you assist Brazel, what do you …'
Johnson:
'Suck me cock, you kid-fuckin' dog, paedophile. Ya a real peach (?) ya fuckin' rat. Go on, turn the sound off.'
[Sonnet stood during Johnson's comment, and sang 'Oop, there it is, oop, there it is , oop, there it is', whilst making a stirring movement.]
Sonnet:
'You assist Brazel …'
Johnson:
'Whoo-oo.'
Wenitong:
'Brazel's father (?), you dirty old fuckin' tamperin' rat.'
Sonnet:
'Fagan, you assist Mr fuckin' Brazel, what do you expect?'
Johnson:
'We know all the jury. Brazel gave us their addresses. He gets 'em you know it.'
Sonnet:
'When you assist Mr Brazel, Mr Fagan, what do you expect? What do you expect, you kick me out for nothing'?'
His Honour:
'… sound contact with this court be immediately cut.'
Sonnet:
'Do you listen to anythink I say?'
Johnson:
'You old fucking dog. Hey tippy, I never thought you'd turn witness.'
Wenitong:
'You dirty tamperer, (indecipherable) you filthy fuckin' rat.'
Johnson:
'You were alright. We liked your tippy.'
Sonnet:
'(Indecipherable) fucker.'
Paisley:
'Ooh. We're not goin' in.'
Sonnet [singing and making a stirring movement]:
'Oop, there it is.'
Johnson:
'(Indecipherable) be with no volume.'
His Honour:
'I'll defer the cross-examination, if any, of Paisley until later in the trial.'
[The audio connection with Court 4 then appeared to be severed, but at some stage was partially re-instated. The two-way visual connection between the two courtrooms remained.]
His Honour:
'Can that be more effectively severed, that sound contact?'
Counsel representing Lindrea:
'Your Honour, for the benefit of the transcript, my client hasn't made a sound. I just mention that.'
His Honour:
'By the look of it to me, they're all in it.'
Tipstaff:
'Is there any sound coming through now?'
His Honour:
'Yes.'
[The tipstaff attempted to contact Court 4.]
[Whilst the above exchange was occurring in Court 18, in Court 4.]
Sonnet:
'Ah. I refute that. Whoo, I'll go you. I'll go you [taking a boxing stance].'
Paisley:
'(Indecipherable) barristers.'
Sonnet:
'This is outrageous. I resign.'
Johnson:
'I want to see Camilleri walk out.'
The sixth incident comprised contempts of court by Sonnet, Johnson and Wenitong. I make the following further findings:
(a)Sonnet, Johnson and Wenitong joined in a torrent of confrontation with the Court in obscene and highly abusive terms.
(b)The insults to the Court were reiterated in terms of accusing the learned trial Judge of complicity with Brazel.
(c)Two of Johnson's remarks specifically referred either to the jury or to the juror who had been struck in the second incident. I am satisfied these references were made with the intention of directly confronting the learned trial Judge.
(d)Wenitong was not the main speaker in the chorus of abuse but clearly and materially contributed to that chorus.
(e)The incident occurred in the absence of the jury and the witness Brazel.
I am further satisfied that the sixth incident was a deliberate confrontation with the Court.
(a)It was intended to indicate implacable opposition to the continuation of the trial.
(b)It was a deliberate continuation of the "circus" or "shenanigans", as the accused themselves described it at various times. It was intended to increase pressure upon the learned trial Judge following the departure of one juror and with a view to achieving termination of the trial.
The Seventh Incident
Shortly after the sixth incident at 2.28 p.m. Wenitong and Paisley stood up on the seat of the dock in Court 4 and bared their buttocks to the camera. This action was not a momentary one but consisted of an extended exposure dramatised by a swaying motion and a manual parting of the cheeks. Johnson and Sonnet emphasised the event by pointing and gesticulating. I find that the seventh incident constituted contempt of court by Wenitong, Paisley, Johnson and Sonnet. Like the sixth incident, the seventh incident was intended to indicate implacable opposition to the continuation of the trial and was a deliberate continuation of the "circus" intended to increase pressure on the learned trial Judge and ultimately achieve termination of the trial.
Despite the fact that the sixth and seventh incidents occurred in the absence of the jury and the witness, I regard them as severe contempts. In my view they went beyond simple insults. They were both calculated to and manifestly had the tendency to escalate the disruption of the effective running of the trial. They were intended to disrupt the hearing and place illegitimate and improper pressure on the trial Judge. Further they had the obvious tendency to create a situation where the continuation of a proper trial would become impossible. The underlying intent of the accused can be inferred from their statements and actions but in the case of Johnson, Sonnet and Paisley it is further corroborated by the following discussion which occurred at 2.36 p.m. on 18 September 2000:
"Johnson:
'Hey, they'll all start doin' it now, we drag it out, one by one they'll drop off.'
[General laughter.]
Sonnet:
'We get a re-trial.'
Paisley:
'(Indecipherable.)'
Johnson:
'Keep it goin' this pace, we'll lose one a day. How many's in there? Twelve. Twelve more days, finished.'
Sonnet:
'Eleven more.'
Paisley:
'Eleven more.'
Johnson:
'Eleven more. Surely they won't go over half.'
Sonnet [to Paisley]:
'You ask for another break. We need another break.'
Paisley:
'Right.'
Johnson:
'I reckon by Friday we'll have half it empty.'
Sonnet:
'I reckon we'll be down to Sucker.'
Johnson:
'I'm not goin'.'
Sonnet:
'I'm not goin'.'
Paisley:
'I don't reckon (indecipherable) the jury, so no, don't fuck it up'."
The Eighth Incident
At 2.38 p.m. the jury came back into Court 18 and the learned trial Judge advised the jury that Mr Camilleri was discharged from the jury and that the trial would continue with the reduced number of 11 jurors. They were further advised that the two Courts would have a two-way video connection but the audio connection was one way only, from Court 18 to Court 4. Brazel was brought into Court 18 at 2.43 p.m. and Sonnet and Johnson made remarks about the witness. At 2.46 p.m. Paisley exposed his buttocks to the video camera again.
I find that the eighth incident was a contempt of court constituted by a deliberate continuation of and exacerbation of the course of events comprising preceding contempts. Unlike the seventh incident the eighth incident occurred in the presence of the jury and the witness.
The Ninth Incident
At 2.48 p.m. Paisley addressed the witness as follows:
"Brazel, I'll come down and see ya down in Charlotte later, matey. You're gonna have an accident, cunt."
After an interjected insult from Sonnet to Brazel, Paisley continued:
"They can't protect ya, ya fuckin' rat."
I find that this was a deliberate attempt to intimidate Brazel and a deliberate attempt to interfere with the course of the trial. The statement that Brazel could not be protected was a threat couched directly in contempt of the Court's power to protect a necessary witness to the matter before it.
It is to be observed that this threat was made by a man with a number of convictions for crimes of violence to a witness who was before the Court because he had been severely bashed while in prison. I am satisfied that it was intended to be a serious threat.
The ninth incident occurred in the presence of the witness but in the absence of the jury.
The Tenth Incident
At 2.51 p.m. the learned trial Judge adjourned the Court but before he left the courtroom Johnson broke wind into the microphone in Court 4.
I find that that act was a contempt of court and a deliberate further continuation and aggravation of the situation resulting from the prior contempts. I note, however, that it occurred in the absence of both the jury and the witness.
The Eleventh Incident
The eleventh incident constituted abuse by Paisley, Johnson and Sonnet to a member of counsel representing the Office of Correctional Services. This occurred during an extended exchange in which Paisley sought to obtain further documentation relating to records concerning Brazel. The character of this incident can be seen in the following exchange:
"His Honour:
'Now, look, no outcomes are to hand with respect to the first half a dozen or so pages, okay?'
[During this statement by the judge, Sonnet started to make noises.]
Paisley:
'Well, Your Honour, out of all these …'
[Noises continued.]
His Honour:
'No outcome is completed, and where there is an outcome it's been specified in the document.'
[Noises continued.]
Paisley:
'I personally know, Your Honour, that this man has over more than 300 Governor's courts …'
[Wenitong made noises.]
Paisley:
'… and he had more outcomes than this, as outlined here. She's not given the whole file – I suggest, Your Honour, that you might even look through Brazel's file and you'll see what I mean.'
[Noises by Sonnet continued.]
His Honour:
'Anyway, that's the first thing. Now, what was black ... Whereabouts in these files is this ...'
[Noises by Sonnet continued.]
Counsel representing
the Office of
Correctional Services:'I'd have to call someone back, Your Honour because ...'
Johnson:
'Sit down, whore.'
Counsel representing
the Office of
Correctional Services:'… in relation to …'
Paisley:
'Fucking whore.'
Counsel representing the Office of Correctional Services:
'… the first …'
Johnson:
'Who."
Counsel representing
the Office of
Correctional Services:'… this, this, this is not on the file …'
Paisley:
'Fucking whore'."
In the full and further course of this incident I note that:
(a) Sonnet expressly referred to the concept of a circus:
"Ya want a circus, (indecipherable), what do you expect?"
(b)Sonnet also expressly referred to the impossibility of getting a fair trial "after all the shenanigans have been goin' on."
(c)Paisley did seek to make a coherent series of submissions to the Court, including the following:
"His Honour:
'Do you want to say something else, Mr Paisley?'
Paisley:
'Yes, Your Honour. When I ask for specific incidents, right, I want a computer print-out because I cannot use them, I cannot put them to, to, to prisoner Brazel. See if I've got reports written, I can, I can refer the allegations to him of what the officer's written and what is said. I can't use this at all. This is like eighties, back in the eighties. This is irrelevant to me. One thing, too, I want the things on the prisoners, like that thing raised, I know for a fact he's admitted to having a run-in with that Chopper Read, that Peter Read, I want it all. I want the local management plans for the last two years, you know, the daily reports? That way I can see his behaviour and if he's been threatening or if he's been in any way, shape or form other than a model prisoner. Do you understand what I'm trying to ask for, Your Honour?"
(d) Johnson and Sonnet made repeated noises including bird and animal noises.
(e)Despite the fact that Paisley made relevantly coherent submissions he also lapsed into crudely offensive language including apart from the matters already quoted a reference to counsel towards the end of his submissions as a "fucking lying mole".
The eleventh incident comprised contempt of court by Paisley, Sonnet and Johnson. Such contempt was constituted by deliberate attempts to disrupt proceedings in an offensive manner. It occurred in the absence of the jury and of the witness Brazel
The Twelfth Incident
The twelfth incident occurred on 19 September 2000 when Paisley cross-examined Brazel at 11.49 a.m.
"Paisley:
'Mr Skunk, right, here we go. OK, witness, can you answer me this: have you ever been known around the system as 'brown bread'?'
The witness:
'Say that again?'
Paisley:
'Have you ever been known around the system as 'brown bread'? Well, I put it to you …'
The witness:
'I can't understand what he's saying.'
Paisley:
'… that you are indeed …'
The witness:
'I can't understand what he's saying, Your Honour.'
Paisley:
'OK, witness. Can you answer me this: are you known, like a nickname, around the system – prison system – as 'brown bread'?'
The witness:
'Brown bread?'
Paisley:
'Yes?'
The witness:
'I don't understand what the expression 'brown bread' means, Mr Paisley.'
Paisley:
'Mr Brazel, during the trial you referred to me as a name like as a – is what you call someone, like a nickname. Well, is this sort of like a nickname – are you referred to as 'brown bread'?'
The witness:
'Brown bread?'
Paisley:
'Yeah …'
His Honour:
'Well, look, I can't see how the question's relevant to anything.'
Paisley:
'Well, I put it to you that you are indeed. All right then, Old Yella, I'm finished, so you're off now – and if you're intelligent enough, I'm pretty sure you know what I'm saying. Thank you very much, I've finished with this dog of a witness.'
[His Honour indicated to the jury that there would be a short break.]
Paisley:
'If you don't know, up here for thinking', whilst tapping his head.
[His Honour directed that the two-way audio link be severed, but before the link was severed:]
Paisley:
'Fuckin' rat. Old Yella.'
[As the judge left the bench, Paisley drew his pen across his neck, a number of times, whilst looking at the camera. He then said to someone off-camera in Court 4 'I don't care if they charge me. I'm gunna do five years over this anyway', and then in response to an inaudible comment from off-camera, 'I know, but he can see me', whilst still drawing his pen across his throat, and then punching his fist.]"
The evidence before me is that according to Partridge's Dictionary of Slang and Unconventional English the phrase "brown bread" is rhyming slang for "dead". It is apparent from the throat cutting motions made by Paisley in a dramatic fashion and which can be clearly seen on the video, that the twelfth incident did constitute a deliberate death threat to Brazel.
It is to be observed again that this threat was made by a man with a number of convictions for crimes of violence to a witness who was before the Court because he had been severely bashed while in prison. I am satisfied it was intended to be a serious threat.
The twelfth incident constituted a deliberate contempt of court. It occurred in the presence both of the jury and the witness.
Supplementary Matters
In forming the view that I am satisfied beyond reasonable doubt with respect to the intentions I have identified in the above findings I have had regard to the whole of the audio transcript and the videotape before me. Thus in addition to the record of the contempts themselves I have had regard to passages such as the following which occurred after the tenth incident in which Johnson broke wind into the microphone.
"Sonnet:
'The circus is back in town.'
Lindrea:
'Paying good money for this mate.'
Sonnet:
'Paying top dollar for this, hey. This is a circus. It's magnificent. If I'm going to get 12 months for this it's goin' be worth it'."
The full transcript further demonstrates that the accused men were well aware that contempt of court might be punished by imprisonment. Among a number of relevant passages the videotape shows that between the seventh and the eighth incident the following exchange occurred amongst the accused.
"Sonnet:
'Has that six months gone up a little bit?'
Lindrea:
'Oh …'
Sonnet:
'Up to 12.'
Lindrea (?):
'No, not yet.'
Sonnet:
'Well, I'll assist, get it up to 12. Want 12 months for this.'
Johnson:
'Go 18.'
Sonnet:
'Might as well go 18. We'll set a few precedents.'
Wenitong:
'For being an arsehole.'
Sonnet:
'Set a few precedents. (Indecipherable) the judge, hang shit on the judge, (indecipherable) the jury (indecipherable) the witness.'
Paisley:
'Shit getting' thrown around.'
Sonnet:
'We haven't got the prosecutor yet.'
Paisley:
'Ah, no worries …'
Sonnet:
'He's gotta be next.' …"
I further note that there was no indication of remorse given by the accused during the course of the trial. The apologies now tendered to this Court were neither made to the County Court or expressed until a very substantial period of time elapsed after the occurrence of the contempts.
Sentencing Principles
Order 75.11 provides:
"(1)Where the respondent is a natural person, the court may punish for contempt by committal to prison or fine or both.
(2)Where the respondent is a corporation, the court may punish for contempt by sequestration or fine or both.
(3)When the court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.
(4)The court may make an order for punishment on terms, including a suspension of punishment."
There is no maximum penalty prescribed for contempt of court. The analysis of Hunt CJ in Wood v Galea[15] demonstrates that little assistance is to be gained by detailed comparisons with other penalties imposed in other cases. As Byrne J has observed:
"This is because the circumstances are infinitely variable as is the impact of different contempts upon the court process."[16]
[15](1996) 84 A Crim R 274 at 277ff
[16]Attorney-General (Vic.) v Rich (1998) VSC 41 para.13
It is clear, however that the penalty for serious contempts may be substantial. In Attorney-General (NSW) v Whiley[17] the contemnor was a party to proceedings in the Children's Court relating to his son, who had been made a ward and placed in foster care. He made a number of threats of violence (including death threats) towards the foster parents in the event that the period of the wardship was extended. He had a long history of violence including a number of convictions for serious violence. He pleaded guilty to two charges of contempt arising out of substantially the same events. The two terms of imprisonment imposed were made concurrent and the effective total punishment in relation to both charges was imprisonment for three and a half years consisting of a minimum term of two years and an additional term of 18 months. In Rich[18] Byrne J sentenced the contemnor to 6 months' imprisonment for abuse of the trial Judge and 12 months' imprisonment for the making of a death threat to counsel. The Court of Appeal made both terms concurrent in the interests of totality and mainly because of the lengthy sentence the appellant was currently serving.[19]
[17](1993) 31 NSWLR 314
[18][1998] VSC 45
[19]per Winneke P para.48
The provisions of s.5 of the Sentencing Act state well accepted fundamental considerations relevant to sentencing. The very nature of the offence in issue suggests that particularly significant purposes for which sentences may be imposed for contempt of court are to deter the offender and other persons from committing offences of the same or a similar character, and to manifest the denunciation by the Court of the type of conduct in which the offender engaged. Nevertheless, factors of punishment and potential rehabilitation are also relevant and raise particular concerns with respect to considerations of parity and totality in the circumstances before me.
The case law further suggests that the following specific matters are of relevance in cases such as those before me:
(a)The context of the proceedings including whether the contempt was committed in the course of a trial for serious criminal offences;
(b)The objective seriousness of the contempt including the actual consequences to the trial, and the implications of such content for the general administration of justice;
(c)The state of mind and intention of the contemnor including the reason (if any) for the contempt and the contemnor's intention as to the consequences for the trial;
(d)whether and if so when there has been an apology or public expression of contrition and acceptance of the Court's authority;
(e) the character and antecedents of the contemnor;
(f) general and personal deterrence;
(g) denunciation of contempt; and
(h) the passage of time since the occurrence of the contempt.[20]
[20]Compare Principal Registrar, Supreme Court of New South Wales v Jando 52 NSWLR 527 at 532ff.
I will have regard to each of these matters in sentencing the respondents and will make more detailed references to the most significant of them in each individual case.
For the reasons I have stated in my ruling of 12 December 2002 I am of the view that the provisions of s.11 of the Sentencing Act 1991 do apply to the exercise of my power in these matters.
Conclusion
For the above reasons I find each of the contempts proved in the circumstances I have found and I will sentence each of the contemnors individually.
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