Gallagher, Norman Leslie v Durack, Peter - [1982] FCA 280

Re: NORMAN LESLIE GALLAGHER
And: THE HONOURABLE PETER DURACK (1982) 68 FLR 210
No. V43 of 1982
Contempt of Court
3 IR 425

COURT

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.(1), Fitzgerald(1) and Jenkinson(2) JJ.

CATCHWORDS

Contempt of Court - Appeal against conviction and sentence - Tendency of statement to destroy public confidence in the integrity of the court - Whether correct meaning ascribed by primary Judge - Whether improper inference drawn from accused's failure to give evidence - Penalty of imprisonment - Whether accused's assertion that money from 'benefactors' would be used to pay any fine was a relevant consideration.

Contempt of Court - Appeal against conviction and sentence - Tendency of statement to destroy public confidence in the authority and integrity of the court - Whether correct meaning ascribed by primary Judge - Whether meaning constituted contempt - Whether consideration given to surrounding circumstances - Whether improper inference drawn from accused's failure to give evidence - Penalty of imprisonment - Whether accused's assertion that money from "benefactors" would be used to pay any fine was a relevant consideration - Penalty - Appropriateness of imprisonment.

HEADNOTE

The Full Federal Court acquitted the appellant of a charge of contempt of court. Shortly after the judgment was handed down the appellant attended a press conference, distributed leaflets and commented, inter alia, that the Full Court's decision had been influenced by the actions of members of the Australian Building Construction Employees' and Builders Labourers' Federation, of which he was Federal Secretary.

The appellant was charged with contempt and Northrop J. found him guilty of making a statement which would tend to cause a lowering of confidence in the court's authority and integrity. The appellant was sentenced to three months imprisonment. He appealed as to conviction and severity of sentence.

Held (in dismissing the appeal): (1) Per curiam, that the primary judge was correct in holding that the statement made by the appellant did constitute a contempt of court.

(2) Per curiam, that the primary judge, in reaching his decision, had correctly had regard to the context in which the statement had been made.

(3) Per Bowen C.J. and Fitzgerald J.: That the appellant's failure to give evidence did not give rise to an inference adverse to the appellant.

Attorney-General for N.S.W. v. Mundey (1972) 2 NSWLR 887, considered.

(4) Per Bowen C.J. and Fitzgerald J.: That, in the circumstances, the consideration of who would, in fact, pay any fine imposed on the appellant was a relevant consideration when deciding upon the nature of the punishment.

(5) Per curiam: That, in the circumstances the sentencing of the appellant to a period of three months imprisonment was a proper sentence.

Davis v. Baillie (1946) VLR 486, referred to.

HEARING

Melbourne, 1982, November 29, 30; December 13. #DATE 13:12:1982

APPEAL.

Appeal to the Full Court of the Federal Court of Australia from the decision of a single judge.

D.M. Ryan Q.C. and R. Merkel Q.C., for the appellant.

E.D. Lloyd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1982] FCA 280
Decision Date: 13 DECEMBER 1982

CaseChat Overview and Summary

In the Federal Court of Australia, Norman Leslie Gallagher sought to appeal his conviction and sentence for contempt of court against Peter Durack. The primary Judge had found Gallagher's statement during a trial had a tendency to undermine public confidence in the court's integrity. Gallagher's statement implied that money from unidentified benefactors would be used to pay any fine imposed, suggesting a potential bias in the judicial process.

The legal issues before the court were whether the primary Judge correctly interpreted the meaning of Gallagher's statement and if there was an improper inference drawn from Gallagher's decision not to give evidence. Gallagher argued that his statement was not intended to undermine public confidence but rather to express his belief in his innocence and support from unnamed sources. He further contended that the penalty of imprisonment was excessive and that his assertion about the benefactors should not have been considered in determining the sentence.

The court held that the primary Judge correctly interpreted the statement's meaning and found that it indeed had the tendency to destroy public confidence in the court's integrity. The court also determined that there was no improper inference drawn from Gallagher's failure to give evidence. The penalty imposed was deemed appropriate given the seriousness of the contempt. The appeal was dismissed, and the stay of execution was lifted, allowing the original sentence to be enforced. Gallagher was also ordered to pay the costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The stay of execution ordered by Mr. Justice Northrop on 5 November 1982 be lifted.

3. The direction that the warrant for the apprehension and committal of Norman Leslie Gallagher should lie in the Registry shall cease to have effect.

4. Norman Leslie Gallagher pay to the Attorney-General his costs of the appeal.

5. The orders specified in paragraphs 2 and 3 of this order shall take effect at 5:00 p.m. on Friday, 17 December 1982.

6. Liberty to apply. Appeal dismissed.

Appellant to pay costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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