Hayden v Her Majesty's Attorney-General for NSW

[1995] HCATrans 20

Office of the Registry
             Sydney      No S178 of 1994

B e t w e e n -

CAMERON NEALE HAYDEN

Applicant

and

HER MAJESTY’S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

BRENNAN J
TOOHEY J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 10.36 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   May it please the Court, I appear for the applicant in this matter.  (instructed by Jeffreys & Associates)

MR K. MASON, QC,  Solicitor-General for the State of New South Wales:   I appear with my learned friend, MR M.G. SEXTON, for the respondent.  (instructed by the Crown Solicitor for New South Wales.

BRENNAN J:   Mr Papayanni.[HCOA1]

MR PAPAYANNI:   This application is in relation to a Court of Appeal’s original jurisdiction in relation to a matter of contempt of court in which the applicant was sentenced to six months imprisonment.  The matter that is put before the Court in relation to the procedure and the manner in which the Court of Appeal dealt with the application or information that came before them and it is submitted that they adopted the wrong approach in relation to this matter and that they should have adopted the approach in relation to what was suggested by Mr Justice Fullagar in Davis v Baillie.  One of the important matters here, in my submission, is that the question of the intent to interfere with the administration of justice was not referred to by the court.  The procedure as shown in Davis v Baillie, as Mr Justice Fullagar pointed out, is that the intention to interfere with the administration of justice is a matter that goes to liability and also to penalty, and the matter being a discretionary matter, that ‑ ‑ ‑

GAUDRON J:   An interference was the likely consequence of what was going on, was it not?  Why do we need to go beyond that in a case such as the present?

MR PAPAYANNI:   Mr Justice Fullagar pointed out that the intention to interfere with the administration of justice is the important matter and is the contempt.

GAUDRON J:   But on the facts of this case, where your client assaulted a witness present to give evidence, why do we need to concern ourselves with intention?

MR PAPAYANNI:   Because he gave evidence that he did not know he was a witness. So it is the same sort of situation, that if you are going to the theatre and on the way to the theatre and someone comes up and says, I want to fight you, he does not intend to stop you going to the theatre, he intends to have a fight with you.  The Court of Appeal found that he intended to, in effect, abuse him, intimidate him; they did not find that he intended to interfere with the course of justice.  In fact, he put it in evidence himself and even submitted to the court that point.

BRENNAN J:   What is the significance of the opponent’s question, “Has it got anything to do with this case?”  Answer, “Yes”, whereupon the opponent abused the witness.  He did not understand that he was a witness, you say?

MR PAPAYANNI:   He gave evidence in the proceedings that ‑ ‑ ‑

BRENNAN J:   It is evidence which ought not to have been accepted, if that other evidence was accepted.

MR PAPAYANNI:   Yes, but all he is saying there is that he wanted to have a fight with somebody.

BRENNAN J:   No, he is not. He is saying ‑ ‑ ‑

MR PAPAYANNI:   Well, he goes on to say that.

BRENNAN J:   “Are you reading something?”  “Yes”.  “Has it got anything to do with this case?”  “Yes”.

MR PAPAYANNI:   That does not mean that he is a witness.  See, when he gave evidence he said,

I know my erratic behaviour speaks for itself, but at no stage did I look at Andrew Duell and say, ‘Oh, you’re a witness, I want to stop you from giving evidence’.

BRENNAN J:   Where do you find that?

MR PAPAYANNI:   That is on page 8 of the application book, page 13 of the transcript, about point 5.

TOOHEY J:   Where did he say that he did not know the man was a witness?

MR PAPAYANNI:   He gave that in evidence in relation to the penalty, but that part there, he says:

at no stage did I look at Andrew Duell and say, “Oh, you’re a witness, I want to stop you from giving evidence”.

TOOHEY J:   That is not the same thing as saying that he did not know the man was a witness.

MR PAPAYANNI:   No, but he gave that in evidence later, that he did not know ‑ ‑ ‑

TOOHEY J:   But you are challenging the conviction, are you not?

MR PAPAYANNI:   I am challenging both, yes, because I say the court should, as a matter of discretion, look at the situation as to what happened and then look at the question as to whether there was an intention to interfere with the administration of justice.  The court did not do that and the approaches suggested by Mr Justice Fullagar, and also adopted by the Court in Fairfax v McRae was to the same effect, where they said that the intention to interfere with the administration of justice was the important matter.  Now, it is a different matter to say that a person goes up to fight somebody to saying that he intended to interfere with the administration of justice.

GAUDRON J:   Five people who are at court because your client requires them to be cross-examined on their affidavits.

MR PAPAYANNI:   Not in this case, because the issue there was an application to set aside the judgment.  On the motion it said that the statement of claim had not been served.  Now, the only issue before the registrar - this was a registrar’s court - was as to whether the application had been served.  The witness was called who said that she served the statement of claim on the mother and she was cross-examined.  After that the case for the plaintiff was closed and this happened after, after that situation arose, because after that he decided on different occasions as to whether he would call his mother or not and in the end it was adjourned over to another date and was not proceeded with later, but at the stage that he spoke to this witness it was after the case, and that witness was not to be called and was not relevant to be called in any case, because it was only an application to set aside judgment.  The money had been paid.  It was only a question as to a month’s interest on the judgment.

GAUDRON J: I am reading at page 13:

It doesn’t sound good but I used to love to drag all these people to court.  I thought, “I’m wasting tax-payers’ money.  I’m wasting their time”. 

That is what your client was saying.  That was his justification.  He had brought these people to court.

MR PAPAYANNI:   Yes, he said:

“Yes, we are calling the other witnesses” but at no stage was it my intention to say, “Oh, you’re a witness, I got to stop you” because all three witnesses, the evidence of all three of the gentlemen that were seated outside the court, if you look at it, Mr Justice, was irrelevant anyway.

Of course, at this stage when he came before the court he had been told they were witnesses and he knew they were witnesses.  Then he goes on, in relation to when he was making a submission to the court, he said:

At no stage did I ever plan to, you know, regarding the obstruction of justice.  My mind at that time for many previous years I could not plan my own breakfast.

So what he was putting in there, even though he was unrepresented at that time, was the question as to whether there was any intention on his part to interfere with the course of justice.  The court did not address that question at all.  They only went on to say that he intended to intimidate the person, the Court of Appeal, page 18 of the application book at the top of that page:

The conduct of the opponent towards Mr Duell, considered objectively, was clearly calculated to intimidate him -

This is the question the court is deciding.  There is no doubt about that, that he intended to intimidate him -

and I would infer that at the time the opponent engaged in the conduct this was known to and intended by the opponent.

He certainly intended to intimidate, intended to abuse him, but he did not, he says, intend to interfere with the administration of justice because he did not know it was a witness.

Then, of course, the court here did not address this situation in relation to whether there was an intention, a wrongful motive, in relation to the matter.  And this was the matter Mr Justice Fullagar referred to when he said there was only one question, at page 493, he said:

the Court does not ask itself two separate questions, but simply and quite properly, asks itself whether it ought to exercise its jurisdiction.  And, as in all cases of discretion, the matters which should be taken into consideration cannot be exhaustively enumerated and defined a priori.

He refers to also, on page 493:

The presumed or proved state of mind of the person responsible for the publication is, I think, relevant to the determination of liability and not merely to the assessment of punishment.

Well, the Court of Appeal did not take it into consideration in either of those situations, and that was also referred to by the Court in Fairfax v McRae.  In that case - and that was a strong Court, Chief Justice Owen Dixon, Justice Fullagar, Mr Justice Kitto and Taylor, and they said there that intention always is regarded by the Court as a relevant consideration.

BRENNAN J:   That is your point, is it, that the court should have considered whether it was an intentional act in the sense in which you are putting it and the evidence on which you raise the point is that which appears at page 13, is that correct?

MR PAPAYANNI:   It is also on page 15, but that is not in the application book.  So the situation there, in my submission, was that it was quite clear that that was the relevant matter and a relevant matter going to penalty.

BRENNAN J:   And you say that on the facts there was a question arising as to whether there was an intention to interfere with a witness.

MR PAPAYANNI:   Yes, and the court inferred it.  They did not say, at any time, we find beyond reasonable doubt that he intended - and this is what they have to find, that he intended to interfere with the course of justice or the administration of justice.

BRENNAN J:   If one reads the judgment of the court as making it perfectly clear that that is exactly what they were finding, what do you have to say to that?

MR PAPAYANNI:   In my submission, they made it very clear that they were finding that he intended to intimidate and harass.

BRENNAN J:   A witness.

MR PAPAYANNI:   That is right.  But they did not make any finding at all as to the question whether he intended, knowing that it was a witness, to interfere with the course of administration.  Of course, he had given evidence himself to that effect, that he did not intend that, and he was not cross-examined.

BRENNAN J:   That is the page you referred us to.

MR PAPAYANNI:   That page, yes, and also a submission that he made in relation to it.  The question here, also, in relation to this matter - and it is set out - is the question of the manifest excessiveness of the punishment.  When one looks at all the other punishments, most of those are in relation to criminal cases.  Most of them have been dealt with by less than two months imprisonment and they were much more severe ‑ ‑ ‑

BRENNAN J:   Mr Papayanni, this Court does not grant special leave simply to consider the question of punishment as a question of severity or non-severity.

MR PAPAYANNI:   I am aware of White and Neal and Veen and Lowe’s Case and the circumstances here, in my submission, show the court has not - there is a gross violation of the principles which a court should adopt in relation to sentencing.  They have not, in fact, taken into consideration the question of intent; they have not taken into consideration the other matters in relation to what was shown in relation to the provisions in the Civil Claims Act.  The provisions in the Civil Claim Act apply that in relation to a matter before the registrar it is 10 penalty points, which is a fine of $1,000.  Section 76 of the Civil Claims Act sets out:

A person shall not commit contempt in the face of a court or registrar.

And that is in the face of the registrar.  The penalty for that is:

10 penalty units or imprisonment for 14 days, in the case of contempt in the face of a court, or, in any other case -

which is a case before the registrar -

10 penalty units.

So you have got a situation there where there is a $1,000 fine as a maximum in the face of the court and then the provision under 76A sets out there:

Without prejudice to the powers of a court under section 76, if it is alleged, or appears to a court on its own view, that a person is guilty of contempt of the court, whether committed in the face or hearing of the court or not, the court may refer the matter to the Supreme Court for determination.

That is a matter that is submitted there is a code in relation to this situation because - and it should have been dealt with under those sections because as was pointed out in Graziers Association of New South Wales v Durkin 44 CLR 29, at page 36, it was in relation to an attachment for contempt in relation to a breach of injunction:

Upon this interpretation sec. 48 creates new rights and duties and gives a specific remedy or penalty for the violation of such rights or of such duties.  “It is an old and well-known rule of construing statutes, that when a special remedy is given for the failure to comply with the directions of a statute, that remedy must be followed, and no other can be supposed to exist” -

And in that case they held that attachment for contempt was not available.  You had to follow the procedure as set out in the Act.  In my submission here you have got a provision in relation to a registrar and a court, and there is some doubt in relation to whether there was a registrar himself - previously in relation to a master in chambers or registrar in chambers, whether he could take any action himself.  The provision there in the Act states in relation to a registrar that he can take the action and the fine in relation to that matter is 10 penalty points for a registrar, and he can deal with it himself.  But if it is outside the court, in relation

to a registrar, then it has to be dealt with under 76A and it has to be referred to the court under that section.  It was not referred under that section and, in my submission, that creates a code - those two sections create a code - and that the procedure there should have been followed.

They are the only matters I wish to put.

BRENNAN J:   Thank you, Mr Papayanni.We need not trouble you, Mr Solicitor.

The decision of the Court of Appeal to convict the applicant was within jurisdiction and was correct.  There is no error of principle apparent in the sentence imposed.  Accordingly, special leave must be refused.

MR MASON:   I seek costs.

BRENNAN J:   What do you have to say about that?

MR PAPAYANNI:   I oppose it.

BRENNAN J:   On what ground?

MR PAPAYANNI:   He has got no ability to pay costs.

BRENNAN J:   That may be so, but what about the making of the order?

MR PAPAYANNI:   It is a criminal matter.  No costs were awarded in the Court of Appeal and I would submit in all the circumstances here it is not a case where costs should be awarded.  It is only in cases where a penalty, usually in relation to contempt of court, is given or in some cases no penalty is given and costs are awarded by reason of bringing the action.  The action could have been brought through the ordinary courts by way of section 76A and if that had been done the costs in relation to this matter would not have been involved.  That is my submission.

BRENNAN J:   What do you say in reply, Mr Solicitor?

MR MASON:   In Hinch’s Case this Court said that contempt matters, though criminal, may in a proper case carry an order for costs.  In my submission this is a proper case for such an order being made.

BRENNAN J:   There will be no order as to costs.

AT 10.55 AM THE MATTER WAS CONCLUDED

[HCOA1]