Hayden v Her Majesty's Attorney-General in and for the State of NSW

[1994] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

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 bail

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 DECEMBER 1994, AT 10.13 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:  If Your Honour pleases, I appear for the applicant in this matter.  (instructed by Jeffreys & Associates)

MR P.A. JOHNSON:  If the Court please, in this matter I appear for the respondent.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

HIS HONOUR:   Mr Papayanni.

MR PAPAYANNI:   I move on the summons dated 5 December 1994 and the affidavit of Anne Green of 8 December 1994.  It states as follows:

1.  I am a Solicitor in the employ of the Solicitor for the Applicant.

HIS HONOUR:   I have read the affidavit.

MR PAPAYANNI:   This was a case where the applicant was represented and withdrew his instructions at the time the matter came before the Court of Appeal.  He had been represented by the Public Solicitor and counsel and requests had been made that the matter be dealt with by a Supreme Court judge in the first instance in order that an appeal would lie to the Court of Appeal in relation to this matter.

There are specific provisions in relation to contempt under the Civil Claims Act.

HIS HONOUR:   Civil Claims Act?

MR PAPAYANNI:   Local Courts (Civil Claims) Act.

MR JOHNSON:   I can hand up a copy, Your Honour.  It is flagged at the relevant section.

HIS HONOUR:   Thank you.

MR PAPAYANNI: Section 76 of that Act says that:

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

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

HIS HONOUR:   What is the penalty for a contempt not in the face of the court?

MR PAPAYANNI:   Not in the face of court, 10 penalty units.

HIS HONOUR:   Where is that?

MR PAPAYANNI:  

in the case of contempt in the face of a court, or, in any other case, 10 penalty units.

HIS HONOUR:   I see.

MR PAPAYANNI:   Then provision under 76A - - -

HIS HONOUR:   What does that mean, 10 penalty units?

MR PAPAYANNI:   $100 is the penalty unit by the Interpretation Act so it means it is $1000.

HIS HONOUR:   So the maximum would be $1000?

MR PAPAYANNI: Yes. Then there is provision under the Act, section 76A(1):

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.

(2)  On any matter being referred to the Supreme Court under this section, the Supreme Court is to dispose of the matter in such manner as it considers appropriate.

This was not done in this case.

HIS HONOUR:   What was not done?

MR PAPAYANNI: That procedure was not followed and the submission would be, in relation to the application for special leave, that this was a code which should have been followed and that under section 48 of the Supreme Court Act that the Court of Appeal only has jurisdiction to deal with a matter in relation to a contempt of court and that it does not have any power in relation to a registrar. The specific provisions in relation to section 76 show the differentiation between a court and a registrar and one of the grounds of the application for special leave is in respect of that. But the main ground, also, is that having regard to the provisions of the section, that the Crown was aware of that, so I was informed, and did not bring it to the notice of the Court of Appeal in relation to the sentence. So the main situation would be, in any case, that if there was found to be jurisdiction, that the sentence of six months in relation to contempt before the registrar was manifestly excessive.

The circumstances in relation to special circumstances - - -

HIS HONOUR:   Whether or not it is manifestly excessive is not really a question for me.

MR PAPAYANNI:   No, I understand that, but the situation in relation to my submission would be that there are special circumstances here.

HIS HONOUR:   What are the special circumstances?

MR PAPAYANNI:   The special circumstances are that the sentence is likely to be completely served before it would be heard by the Court.

HIS HONOUR:   Why do you say that?

MR PAPAYANNI:   The sentence expires on 12 April 1995 and that it is impossible to hear the matter, even if it is expedited, before February 1995, and there is the main situation in relation to whether it is manifestly excessive, if a reduction of the sentence was thought to be appropriate, then the sentence would have been completely served by the time that the matter came up and may have been in excess of the time.

The situation is different here in relation to when one looks at the Chamberlain’s Case where it was said by Justice Brennan in that case that the situation there is in relation to jury trials and His Honour said there - - -

HIS HONOUR:   Was this not a conviction by a jury?

MR PAPAYANNI:   No, conviction by the Court of Appeal.

HIS HONOUR:   Of course, yes, quite right.

MR PAPAYANNI:   It came before the Court of Appeal in the first instance and what was wanted was to have the matter brought before a judge of the Supreme Court so there would be a right of appeal.  So it is like a magistrates court, where a person is sentenced to a term of imprisonment, and then he has a right of appeal to Quarter Sessions and is given a recognisance during that period of time in order to prosecute the appeal.  In this situation, he comes before the Court of Appeal as an original court and then his only way of any redress at all is to go to the High Court.  There is no provision - - -

HIS HONOUR:   True.  But in my view, the principle that bail is only granted in this Court in cases of exceptional circumstances still applies.

MR PAPAYANNI:   Yes, I understand that exceptional circumstances, but the law that has been laid down in Chamberlain’s Case and in Chew’s Case and in Robinson’s Case all apply to situations in relation to a jury trial.  Justice Brennan said, in relation to the jury trial:

To suspend or defer the sentence before an appeal is heard in such a case -

where the prisoner challenges the verdict of the jury ‑

is to  invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted.

HIS HONOUR:   That consideration does not apply here, but I still do not think that that converts it into a case of special circumstances.

MR PAPAYANNI:   Well, the circumstances here is that there is no other avenue of appeal. In relation to it there is no intermediate court he can go to.  He cannot go to the Supreme Court for bail.

HIS HONOUR:   But that does not mean that it is still not a case in which you look for some exceptional circumstance.

MR PAPAYANNI:   It has been accepted in Robinson’s Case that if the sentence will have expired by the time the matter comes before the court, then that is an exceptional circumstance.

HIS HONOUR:   But that is not established in the present case, that the sentence will have expired by the time that the matter comes before - - -

MR PAPAYANNI:   A substantial part of the sentence will have expired, that is the situation.  Unless there is a substantial part of the sentence to be served ‑ ‑ ‑

HIS HONOUR:   You see, the fact of the matter here is that this application for special leave can be heard in February.

MR PAPAYANNI:   Even if it were heard in February, then the situation may be then that there was no jurisdiction in the Court of Appeal and he will have served four months, four and a half months.

HIS HONOUR:   That is a possibility.  But at the moment, I proceed on the footing that there is a conviction and a sentence imposed for this period of time.

MR PAPAYANNI:   Yes, but it is a situation in relation to not a jury trial here.

HIS HONOUR:   I realise it is not a jury trial.

MR PAPAYANNI:   So as was said by Justice Gaudron, the restrictions in relation to jury trials do not exist in relation to - - -

HIS HONOUR:   Yes; but what have you got, apart from the fact that it is not a jury trial?

MR PAPAYANNI:   The situation that he will have served ‑ ‑ ‑

HIS HONOUR:   You have got two facts you can point to: it is not a jury trial and in a case like this, you do not have consideration of the matter by an intermediate Court of Appeal, but what else have you got apart from that?

MR PAPAYANNI:   The fact that he will have served four and a half months of a sentence.

HIS HONOUR:   Sure.

MR PAPAYANNI:   And the sentence is - so there would be no real purpose in continuing with the appeal.  To deprive a person of his right of appeal is not, in my submission - - -

HIS HONOUR:   It does not deprive him of his right of appeal.

MR PAPAYANNI:   Well, he will have served four and half months.

HIS HONOUR:   I realise that.

MR PAPAYANNI:   Even if it came to Court on l February which is unlikely, in my submission.

HIS HONOUR:   It will come to the Court on 17 February.

MR PAPAYANNI:   Yes.  So, if it came before the Court on 17 February he would have served then five months.

HIS HONOUR:   Yes, I appreciate that.

MR PAPAYANNI:   See, Your Honour, in Chew’s case - Your Honour is well aware of Chew’s case, I think.  The situation there was that the substantial part of the custodial sentence would have been served and in that case they held it was exceptional circumstances even though it was a jury verdict.  In this case, of course, to suggest that a person should serve the maximum

sentence in relation to this matter when he is alleging that there was no jurisdiction in the first place, in my submission, is a gross miscarriage of justice and that he should be given the opportunity to prepare his case whilst on bail because it is a very serious matter.  He has received six months imprisonment in that respect.

HIS HONOUR:   When you talk about prepare his case, I gather from you it is a question of argument about jurisdiction.

MR PAPAYANNI:   That would be one of the matters.

HIS HONOUR:   Why does he need to be at liberty to prepare his case?

MR PAPAYANNI:   There are certain matters in which he may require some instructions in any case.  So, we get a situation here where this is a court of first instance and he has got no right of appeal, as I have put before.

HIS HONOUR:   As you have put it before, there is no occasion to repeat it.

MR PAPAYANNI:   Yes.  So, they are the matters and I would rely heavily on Chew’s case in which the similar situation existed where the substantial part of the sentence would have been served.  Mr Justice Toohey gave bail in that case.  In these circumstances, the situation remains that, in my submission, that constitutes exceptional circumstances.  If the Court pleases.

HIS HONOUR:   Thank you, Mr Papayanni.  Yes, what do you say, Mr Johnson?

MR JOHNSON:   Thank you, Your Honour.  The application for bail is opposed.  If I could hand up to Your Honour an outline of argument.  The first paragraph merely summarises the history of proceedings before the Court of Appeal.  The second paragraph sets out the principles which are, of course, well known to the Court.  If I could indicate that in the decision of Roos, a copy of which I can hand up to Your Honour, His Honour Mr Justice Toohey indicated that the - - -

HIS HONOUR:   A list of these authorities was given to the Court very late but you have copies of everything, have you?

MR JOHNSON:   I have copies, Your Honour, which I can hand up.

HIS HONOUR:   I see, yes.

MR JOHNSON:   If I can hand up a copy of Roos, Your Honour.  It appears from Roos which was not a jury case - it was an application for special leave to appeal to this Court from a conviction other than by a jury - but at page 633G, first column, the point was raised with His Honour that the exceptional circumstances rule was confined to jury verdicts.  His Honour noted that that had been submitted but nevertheless indicated:

the insistence of the Court that the jurisdiction be not exercised simply to preserve the status quo -

so, I would submit that the exceptional circumstances rule is still apposite here.

The case of Chew is referred to by Mr Papayanni.  Chew [No 1] was a case where an application for bail was made before the grant of special leave and was refused.  Chew [No 2] was a case where, after a grant of special leave, His Honour Justice Toohey granted bail.  So I would submit that that case is distinguishable from the present where the application is made in advance of the application for special leave.

There are a number of submissions made concerning the facts, and that is done on this basis, Your Honour.  It is put to the Court that it is an exceptional circumstance that in effect this is the first appellate court in relation to this - - -

HIS HONOUR:   Look at page 633 of Roos, second column, if you look at the third‑last paragraph.

MR JOHNSON:   Concerning whether the sentence would continue to run.

HIS HONOUR:   Yes, I was not thinking of that so much.  His Honour says:

If bail is granted the sentence is likely to expire, unserved, if an appeal is unsuccessful and will largely have run its course before the application for special leave to appeal itself is heard.  Counsel debated whether, if the sentence was stayed, the Court might reactivate the sentence -

Now it seems that - and you can correct if I am wrong, because I am not familiar with all the facts of this case - His Honour does not seem to have regarded the fact that the sentence will largely have run its course before the application for special leave to appeal is heard as a factor indicating that bail ought to be granted.

MR JOHNSON:   That is so, Your Honour.

HIS HONOUR:   Now, did His Honour give reasons for taking that view?

MR JOHNSON:   His Honour did not give reasons beyond what appears in the - - -

HIS HONOUR:   - - - the earlier part of the judgment, namely, that exceptional circumstances should be shown and, by inference, he was expressing the view, the fact that the sentence was likely to expire was not a reason for regarding it as a case of special circumstances.

MR JOHNSON:   Yes.  There was an additional complicating factor in Roos’ case in that because of the Sentencing Act in New South Wales there was grave doubt that the sentence could be stayed whereas, in the present case because section 11 of the Sentencing Act permits an appeal court in an appeal, as opposed to a prerogative writ application to grant a stay and to restart a sentence.  That problem does not apply in this case but, nevertheless, His Honour took into account the fact that the sentence may effectively expire was not in itself an exceptional circumstances. 

There were a number of cases that were handed to me by my learned friend in which other Judges of this Court have held the same.  Chew v The Queen, [No 1] - if I could hand up a copy of that - which was an application made before the special leave application in Chew, makes it clear, just from a perusal of the headnote, that His Honour Justice McHugh took that view.  Likewise, in Robinson v The Queen.  Now, true it is these are jury conviction matters but I would submit that the principle is the same and should be applied with equal force in the present case.

In relation to the extent to which the Court may examine the merits of the application for special leave, if I could hand up to Your Honour a copy of the decision of Justice McHugh in Walker v The Queen.  In that case, which was an application for leave to appeal from a jury conviction, His Honour observed at the second page of the judgment, page 10, middle column:

But in any event even if the applicant had established exceptional circumstances, it would still be necessary for him to show that there was a sufficient likelihood of the special leave application being successful.  Without in any way wishing to prejudge the prospects of the application for special leave, I think that the grounds relied upon do not excite confidence in its likely success.

Now, in the present case, I would make the submission that an examination of the grounds would not excite confidence in the likely success of the applicant’s special leave application.

HIS HONOUR:   This is because you say that there is inherent jurisdiction in the Supreme Court to punish for contempt?

MR JOHNSON:   Yes. That the effect of sections 76 and 76A is to give power to a Local Court to punish under section 76 for contempts in the face of the court, with a limited maximum penalty. Section 76A is merely a machinery provision which permits the court to refer a matter to the Court of Appeal in certain circumstances and the Court of Appeal, in those circumstances, being the part of the Supreme Court with jurisdiction to deal with contempt, may approach the matter upon the basis that the penalty for contempt is at large. What the present applicant submits - - -

HIS HONOUR:   You read subsection (2) as achieving that, do you, of 76A?

MR JOHNSON:   That the common law and 76A(2) would have that effect, that 76A itself does not restrict the power of the Supreme Court as to penalty and it is well recognised in the authorities that in the area of contempt the question of penalty is at large.

The submission that is put by the applicant is that by the introduction of section 76A the legislature ‑ ‑ ‑

HIS HONOUR:   .....code, yes, I follow that.

MR JOHNSON:   And indeed, by reference to Part 55 rule 11 of the Supreme Court Rules, if I could hand that up to Your Honour, it is apparent that this was not intended to be a legislative code, Part 55 being the part of the rules dealing with contempt.  Part 55, rule 11(2):

Subrule (1) does not affect such right as any person other than the registrar may have to apply by notion for, or to commence proceedings for punishment of contempt.

Subrule (3), (b) in particular:

Where -

.....

(b) it appears to a Local Court on its own view that a person is guilty of contempt.....

the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary -

But very significantly, subrule (4);

Subrule(3) does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.

HIS HONOUR:   But how do you manage to make a rule of court relevant in the interpretation of a statutory provision?

MR JOHNSON:   In this way, Your Honour, that the proper construction of sections 76 and 76A, I would submit, does not purport to provide for a sole path for contempts of - - -

HIS HONOUR:   I can understand that submission, but how do you make a rule of court relevant to that submission?

MR JOHNSON:   In the sense that the Supreme Court Act itself provides for, in its rule-making power, rules to be made with respect to the contempt jurisdiction.  I would submit that in circumstances where rules are made of this type, they are of assistance in understanding and putting in context the submission that is advanced on behalf of the applicant.  The applicant’s submission is, in effect, that the Attorney-General has no standing to bring proceedings for contempt with respect to the Local Court in its civil jurisdiction.

HIS HONOUR:   I follow the submission.

MR JOHNSON:   And I would submit that that is clearly wrong.  There are, in the application for special leave, certain claims that there was a denial of natural justice.  Again, having regard to the fact that the matter comes from the Court of Appeal to this Court as the first appellate - - -

HIS HONOUR:   I need not trouble you on that point.

MR JOHNSON:   Thank you, Your Honour. I would submit that, leaving aside the natural justice points which are addressed in paragraphs 6 and 7, the submission that was put that the sentence imposed by the Court of Appeal was of no validity and that it exceeded the maximum sentence provided by section 76 is incorrect. The Court of Appeal was not bound by the maximum penalty in section 76. The penalty for contempt is at large - - -

HIS HONOUR:   But that comes back to your earlier submissions.

MR JOHNSON:   Indeed, and indeed, in the present case, on the facts as disclosed, there is some doubt as to whether the present contempt would be contempt in the face of the court in any event, it being an assault on a witness outside the court.

HIS HONOUR:   How would that help you if Mr Papayanni’s arguments were otherwise correct?

MR JOHNSON:   It would help in so far as section 76, in my submission, is confined to contempts in the face of the court. It says:

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

Maximum penalty: 10 penalty units or imprisonment for 14 days, in the case of contempt in the face of the court -

HIS HONOUR:   So you read “in any other case” you read “registrar”, you do not read “not in the face of the court”?

MR JOHNSON:   Yes.  Because that would be quite inconsistent with the pattern of provisions of this type in the Justices Act and in other Acts where it has always been a limited power of inferior courts of record to deal with contempts, only contempts in the face of the court. It has never been a power of local courts or inferior courts to deal with publication contempts and matters of that sort and I would submit that is the proper construction for section 76.

In so far as it is submitted that the sentence is manifestly excessive, that, of course, was a matter for the Court of Appeal.

HIS HONOUR:   Yes.  I need not trouble you on that.  That is distinct from the jurisdiction point.

MR JOHNSON:   Yes.  I would submit that in all the circumstances of the case the application for bail should be refused.  If the Court pleases.

HIS HONOUR:   Yes, thank you.  Mr Papayanni.

MR PAPAYANNI:   In relation to that, of course, we would be arguing that that is a code and that is - - -

HIS HONOUR:   I follow that.

MR PAPAYANNI: Yes. And the situation, of course, that the differentiation is between a court and the registrar. Now, the circumstances here were that the court was not even sitting at the time this occurred. There had been an adjournment when the applicant went outside the court. So, the circumstances there allow for 76A of course to refer matters. It was not done in this case. They relied on Division 2 of the rules which have been handed to Your Honour. But in that case, of course, section 48 deals with - that the Court of Appeal can only deal with contempts of court where it is in relation to proceedings in a court. A court and a registrar are differentiated in the code and our submission is that there would be no jurisdiction in relation to a registrar in relation to the Court of Appeal. There has never, as I understand it, been any inherent jurisdiction in relation to a registrar of a court.

Now, the circumstances here, of course - and it is important - is that the applicant was not represented in relation to the matter coming before the court.  So, in that respect this is his only avenue of appeal.  He cannot go anywhere else.

HIS HONOUR:   Yes, but you have made that point before.

MR PAPAYANNI:   Yes, I know.  But I say the fact that he is unrepresented gives him that only avenue of appeal and the question of the sentence, in my submission, it comes within Chew [No 2], and even though Chew [No 2] Justice Gaudron said that in relation to the situation now where there are special leave applications separated from the appeal itself, that a less restricted view should be taken in relation to applications for bail.  This is a situation, as I say, which is akin to a magistrate at first instance.  The Court, in my submission, in these circumstances should not refuse bail as it would be denying an unrepresented applicant any avenue in relation to the

matter because his sentence will be almost completely served by the time he comes before the Court.

HIS HONOUR:   It is like a gramophone record.  You come back to what you said before.

MR PAPAYANNI:   I understand, but I am just referring to the whole situation.  My submission is that there is a substantial appeal point here, but it would be pointless if bail was not allowed in this case.  I still say that this is the only Court that can in fact review whereas the situation that was required by the applicant was that he wanted a review, if possible, by having the matter heard by a Supreme Court judge.

HIS HONOUR:   I know, you said that earlier. 

MR PAPAYANNI:   I still stress that point.

HIS HONOUR:   I am not blaming you because you are putting something that has been handed to you.

MR PAPAYANNI:   I stress that point.  This is an exceptional case in itself because it is a case of contempt which, of its nature, has not come before the Court before in these circumstances.

HIS HONOUR:   I will give my decision in this matter at 2.15.

AT 10.42 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.15 AM:

HIS HONOUR:   This is an application for bail pending the hearing of the applicant’s application for special leave to appeal from a conviction for contempt and a sentence to a fixed term of imprisonment for six months commencing on 13 October 1994 and ending on 12 April 1995.

The New South Wales Court of Appeal, on a motion by the Attorney-General, found that the applicant verbally abused, threatened and assaulted a person who was waiting to give evidence in certain civil proceedings against the applicant’s mother in the Local Court.  Having found that this conduct constituted a contempt, the Court of Appeal imposed the sentence for the fixed term to which I have referred.  Chief Justice Gleeson who delivered the judgment of the Court of Appeal did not refer to the basis on which the Court exercised jurisdiction in the matter, but it seems clear enough that the Court was exercising what it thought was its inherent jurisdiction to punish for contempt of a lower court. 

The principal ground taken in the proposed appeal to this Court is that sections 76 and 76A of the Local Courts (Civil Claims) Act 1970 (NSW) constitute an exhaustive code relating to punishment for contempt of a Local Court. Section 76 provides:

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

Maximum penalty: 10 penalty units or imprisonment for 14 days, in the case of contempt in the face of a court, or, in any other case, 10 penalty units.”

Section 76A provides:

“(1) 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.

(2)  On any matter being referred to the Supreme Court under this section, the Supreme Court is to dispose of the matter in such manner as it considers appropriate.”

The applicant’s counsel then submits that 14 days imprisonment is the maximum penalty that can be imposed for contempt in the face of a Local Court.  The consequence, so it is said, is that the sentence imposed was invalid.  Alternatively it is argued that the sentence was excessive.  Another argument is that there was a denial of natural justice arising from the circumstance that the applicant, having withdrawn his counsel’s retainer, was unrepresented before the Court of Appeal.  Associated with that argument is the submission that an application for an adjournment was refused.

Counsel for the applicant accepts that in order to secure an order for bail pending the hearing of a special leave application exceptional circumstances must be shown to exist.  Here it is said exceptional circumstances exist because the term of imprisonment will have largely expired by the time the special leave application is heard.  The application for special leave will be listed for hearing on 17 February 1995, leaving little less than two months of the sentence imposed to be served.  The consequence is that if the applicant obtains special leave and succeeds in the appeal, he will have wrongly served a large part of his short custodial sentence.  This is an important consideration and it might, in other situations, warrant a grant of bail.

Here, however, there has as yet been no grant of special leave and, on what has been put to me, I am not greatly impressed with the applicant’s prospects of securing a grant of special leave. For my part, the argument that sections 76 and 76A exclude the Court of Appeal’s inherent jurisdiction to punish for contempt is by no means convincing and when regard is had to section 76A(2) it may be that the Supreme Court’s inherent power to punish for contempt is expressly preserved.

The other matters raised by the applicant are not in themselves, or taken in conjunction with other grounds, sufficient to constitute exceptional circumstances or to warrant the grant of bail.  Should the Court grant special leave, different considerations would apply, but as things stand I refuse the application.

Court will now adjourn sine die.

AT 2.20 PM THE MATTER WAS ADJOURNED SINE DIE