Macgroarty v Clauson

[1989] HCATrans 140

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B58 of 1988

B e t w e e n -

NEIL JOSEPH MACGROARTY

Appellant

and

THE HONOURABLE PAUL CLAUSON

Respondent

MASDN CJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

MacGroarty(2)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 26 JUNE 1989, AT 2.17 PM

Copyright in the High Court of Australia

Bl T 1/1/PLC 1 26/6/89

MR C.E.K. HAMPSON, QC: If it please the Court, I appear

with my learned friend, MR P.E. NOLAN, for the

appellant. (instructed by Robertson & O'Gorman)

MR J.E. GALLAGHER, QC: If it please the Court, I appear

with my learned friend, MR T.J. RYNNE, for the

respondent. (instructed by the Crown Solicitor

for Queensland)

MR HAMPSON:  If the Court pleases, this is an appeal brought

by special leave granted by this Court on 25 November

last year from a decision of the Full Court of the

Supreme Court of Queensland produced on 12 August

1988.

I formally read the notice of appeal which appears on page 100 and following of the appeal

book.

MASON CJ: That means you will not read it, does it?
MR HAMPSON: Well, Your Honour, what it means is that - - -

MASON CJ: There is no occasion to read the notice of appeal.

MR HAMPSON:  Thank you, Your Honour. I did not propose to

do it actually but just as a way of reminding the

Court that it was there and that was the page that

it was at.

MASON CJ: Well, as the appeal has been listed, we had assumed

that a notice of appeal had been filed.

MR HAMPSON: That there was a notice?

MASON CJ: Yes.

MR HAMPSON:  Thank you, Your Honour. The Court would also,

no doubt, have seen that the decision of the

Full Court of the Supreme Court of Queensland was

a majority decision, Justices Matthews and

Dowsett in the majority and Mr Justice Carter
dissenting.	That decision upheld the conviction

of the appellant by His Honour Judge Loewenthal

of the district conrt for contempt of court.

Shortly put, the facts were these:  on

14 December 1987 the appellant, who is a barrister,

was appearing before His Honour Judge Loewenthal -

MASON CJ:	Mr Hampson, I do not want to interrupt you but, in
fact, we have read the appeal book and it might be more appropriate if, at this stage, you handed
in your outline of submissions.

MR HAMPSON: Very well.

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MacGroarty(2)

MASON CJ:	And, I think, having done that and allowing us a
brief period of time to read the outline, you
could proceed to the heart of your submissions.
MR HAMPSON:	Very well, Your Honour.
MASON CJ:	Yes.
MR HAMPSON:	I would like, before going to the decision

of the Full Court, to go to the record - just

what actually happened before His Honour, the

district court judge, because Their Honours, of

course, refer back to that, and that appears at

page 14 of the appeal book.

TOOHEY J:	Mr Hampson, are we to take it that there is no
challenge to the completeness or accuracy of the
record?
MR HAMPSON:	There was one made - Your Honour, I think,

probably means this: there was one made in the

Full Court in that affidavits were put in which sought to augment the record.

TOOHEY J:  The affidavit appears in the material before us.

MR HAMPSON:  Yes, it does. Your Honour, no, we shall not

be relying on that. We will take what His Honour

said as being the situation as to actually what

happened although we would rely on the affidavits

that were put in to set - in what tone of voice

people were speaking, perhaps, because His Honour

does not really say that. So far as actually what

happened then, we accept the transcript, Your Honour.

TOOHEY J: Yes, thank you.

MR HAMPSON:  I think that is consistent with the authorities,

no effort having been made earlier to correct the

transcript. But the affidavits do say that

His Honour spoke very loudly and in an angry tone

of voice and the appellant says, and he is supported

on this by the other deponent, that he

was not, in fact, shouting. But as for the words

that were said, we accept what the transcript says.

At page 14, "Please don't read it again.",

His Honour says. The situation was as the Court

will remember that Mr MacGroarty was cross-examining

the witness who was the employer, the charge being

stealing as a servant. He was cross-examining

the employer who was an important witness and
trying to get the employer to agree that he had said certain things when giving evidence before the magistrate which he was not agreeing to now.

The actual time can be - it was actually 50 minutes

since the cross-examination connnenced. That can be

worked out if the Court is interested in it.

His Honour said:

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MacGroarty(2)

Please don't read it again. You have

been cross-examining for a long time now.

MR MACGROARTY:	On an important matter,
Your Honour.
HIS HONOUR:	You have been going round and

round and not getting down to the issues.

MR MACGROARTY:  With respect, Your Honour,

that is your opinion.

HIS HONOUR:	I have made my ruling.
MR MACGROARTY:	Your Honour, in making the
ruling - - -

HIS HONOUR: Will you keep quiet while I am

speaking?

MR MACGROARTY:	No, I won't.
HIS HONOUR:	Mr Bailiff, remove
Mr MacGroarty from the Courtroom.	Take
the jury out first.
The jury retired at 2.50 p.m.
HIS HONOUR:	Mr MacGroarty, I told you to

stop speaking while I was speaking and you

have refused. Is there any reason why I

should not deal with you for contempt?

MR MACGROARTY:	I am trying to put on the
record - - -

HIS HONOUR: Will you answer my question?

MR MACGROARTY:	I was.
HIS HONOUR:	I said, "Will you stop speaking
while I am speaking"? You sa:id you would not.
That goes beyond bad manners. It is a
deliberate contempt as far as I can see.
MR MACGROARTY:  I was trying to put on
record that Your Honour, in making a ruling,
passed an opinion that I was not getting down to the issue.
HIS HONOUR: "Will you get down to the issue?" I said to you, "Will you stop speaking while I am speaking?" you said you will not. What
have you to say about that?
MR MACGROARTY: Nothing, Your Honour.
HIS HONOUR:  I am giving you the opportunity
before I deal with you for contempt.

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MacGroarty(2)

That does not say exactly what the opportunity is, of course. Later on there is a suggestion that

this was an opportunity of apologizing. If that is
the case, obviously, Mr MacGroarty would have to have

been telepathic to be able to appreciate that that

is really what His Honour was saying when he said:

I am giving you the opportunity before

I deal with you for contempt.

MR MACGROARTY:	I have	nothing to say
about that.

HIS HONOUR:	You are fined $100 for contempt
of Court.
MR MACGROARTY:	Yes.
HIS HONOUR:	That is the position.

And then he goes on and asks whether the fine is to

be paid irmnediately or, in effect, whether there is

time to pay and things of that kind.	And the
court adjourned - - -

MASON CJ:	What was that intended to achieve, Mr Hampson?
MR HAMPSON:	I think, Your Honour, that was intended to discover whether~· the fine was supposed to pay instanter
in which case the trial might not have been able co
proceed without some difficulty or whether His Honour was giving him time to pay. That is my understanding
of really what it was all about.

His Honour did not seem to like it. His Honour

seemed to think, "Oh, you're continuing to be

. t. t" - - -

imper inen

MASON CJ: That is an understandable reaction, is it not?

MR HAMPSON:  Yes, that is so, but my instructions are that the

question was whether - when a fine of this kind is

given in Queensland it is normally announced that

there is time to pay or there is not any time - you know, if there is no time to pay mentioned, well it

becomes payable instanter and things of that kind.

MASON CJ:	What, fines imposed on counsel are quite a common
experience, are they not?

MR HAMPSON: Fines imposed by courts, Your Honour, just generally.

That, on my instructions, was the reason for those questions. It then goes on, of course, to the

question of, "Can we proceed with the trial?" and

so forth.

MR MACGROARTY:	I have to get instructions
from my client.
HIS HONOUR:	I will adjourn.

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MacGroarty(2)

And then it is after the trial that His Honour puts

down on the record what he says the situation was.

HIS HONOUR:  Before I go on with this

case, in case the shorthand writers could not

get a full record down, I hope they did, I

will put the following matters on record.

Mr MacGroarty commenced making certain

submissions. I interrupted him several times

and instead of stopping and giving me an

opportunity of saying what I wished to he

continued with his submissions, raising his

voice. I then called on him, having to

raise my voice very substantially and told

him to stop speaking while I was speaking,

the reply which I got was a complete refusal.

I sent the jury out and gave him an

opportunity of apologising.

Now, that is what I meant before, he did not say that

at all.

He did not do so and I have fined him for

contempt of court. After fining him I asked

submissions on whether the trial should

proceed. Mr McGuire said he had no objection.

I will now hear what Mr MacGroarty has to say.

MR MACGROARTY:	Your Honour, I commenced to make
a submission -
HIS HONOUR:	I have put the matters on record.

You will now make submissions on whether

the trial should proceed.

MR MACGROARTY:  I see. Your Honour does not

permit me to say anything for the record?

HIS HONOUR:	What do you want to say?
MR MACGROARTY:	The submission I commenced to

make was to the effect that Your Honour said

in the presence of the jury that I was not

getting down to any issue in this trial in my
cross-examination of Mr Scott and that I should
get down to an issue in this trial in my

cross-examination of Mr Scott. The submission

I commenced to make was I wanted to put it on

record that Your Honour, with respect, had
no right to say in front of the jury I was not
questioning Mr Scott or cross-examining him

on any of the issues in this trial. That is

when Your Honour interrupted me and that is what

I was trying to get on the record when

Your Honour interrupted me.

HIS HONOUR:  The reason I dealt with you is

because I interrupted you several times. You

shou:edover what I had to say. No.

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MacGroarty(2)

MR MACGROARTY:  I did not shout. I said,

" I won ' t . "

HIS HONOUR: Finally, when I had to shout

to you to tell you to stop talking while I

was talking you said, "I won't." Then you

would not apologise. What do you have to

say about the trial proceeding?

He said he got instructions and the trial went on.

Now, they seem to be the relevant parts because

when the trial proceeded he did cross-examine,

really, in effect, it would seem, the way that the

cross-examination was intended to proceed before,

by looking at the depositions and seeking from the

witness an express answer, rather than a prevaricating

answer to the question of whether or not he had made

those statements before the magistrate.

MASON CJ: Could I take you back to page 14, for a moment, at

about lines 12-13, or a little further on - 18?

His Honour says:

I have made my ruling.

Now, what is the ruling that His Honour is referring

to?

MR HAMPSON:  I do not know, with respect, Your Honour. I do not

know. I do not know what His Honour's ruling there

is unless he means that his statement that counsel
was cross-examining at length on issues that were not

relevant was a ruling.

MASON CJ:  But the previous statement:

You have been going round and round and

not getting down to the issues.

Well, that is hardly a ruling.

MR HAMPSON:  No, exactly, Your Honour. But that is the only

thing it can be because there is nothing that goes

before that suggests that - - -

DEANE J:  But is not what His Honour is referring to is his

direction not to read it again, about four lines

above that?

MR HAMPSON:  Well:

HIS HONOUR: Please don't read it again.

You have been cross-examining for a long time.

MR MACGROARTY:	On an important matter,
Your Honour.

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MacGroarty(2)

HIS HONOUR:  You have been going round and

round and not getting down to the issues.

Well, with respect, Your Honour, not even that would

I concede is real1y a ruling. It is really a request

in the first instance. I mean, even if it was put in

a rather long-suffering or an angry or, however you

like to put it, way, it is still, "Please don't

read it again. You have been cross-examining for a

long time now." And counsel says, "On an important

matter, Your Honour." And I do not think there is

any real dispute in the case that it was really an

important matter that he was on.

MASON CJ: That is probably what His Honour had in mind though,

is it not, because if you go back to page 12,

line 21, His Honour says:

Will you go on with your question. I'm

not going to have him shown the record. accepts it.

MR MAMPSON:	Yes.
MASON CJ:	So, he was not going to have the record shown to the witness.

MR HAMPSON: Yes. Well, with respect, that is an unusual way to _

conduct things, the way that His Honour was suggesting that.

I mean, if one is faced with a witness who is - I mean, members of the Full Court had some observations on this,

If you are faced with a witness who is saying, as this witness said, "Oh, if it is in the depositions, that's probably right" and if it is before a jury, to get

them clearly to understand what is in issue, the normal

and appropriate thing is to show it to the witness,

show him what he said and say, "Now, isn't that what

you said there." And counsel, in my submission,

was really entitled to expect no less in his

cross-examination. That should emerge quite clearly

to the jury that the witness had on the previous

occasion given testimony contrary - well, it was for

the jury to say whether it was contradictory-: of what

he was presently giving. But His Honour really

prevented him from doing that and we would submit that

His Honour should not have done that.

McHUGH J:  Mr Hampson, are the depositions signed by the witness
in Queensland?

MR HAMPSON:  They are in Queensland, yes, Your Honour. Yes,

they are in fact sworn over - typed out, sworn over: taken in two ways, I understand; either originally with a typewriter or taken down on a recording device,

typed over, and the witness comes back and signs it.

I am exposing my age:  my learned junior says that

although that was the system, he does not know for sure

BlTl/8/PLC	8	26/6/89
MacGroarty(2)

that that always obtains anymore. They are all taped

now. They all appear on tapes. I am sorry,

Your Honour, about that.	So, they are all now
taped.	So, I would submit that one has to search

with a little bit of goodwill, as it were, to discover

just what this ruling His Honour made was. Now,

it may well be a ruling that the witness was not

to be shown the deposition. It may be a ruling

that he had been going round and round and not getting

down to the issues but he has already said that he

has made a ruling and that has some significance

because counsel said:

Your Honour, in making the ruling - - -

HIS HONOUR: Will you keep quiet while I am

speaking?

You see:

HIS HONOUR:	I have made my ruling.
MR MACGROARTY:	Your Honour, in making the
ruling - - -

HIS HONOUR: Will you keep quiet while I am

speaking?

MR MACGROARTY:  No, I won't.

"Remove him", and that is the actual passage.

Tl Now, when one goes to the Full Court, it was

interesting how this proceeded because in the

district court it is a statutory offence - and
Your Honours will find let into the little blue
book which contains our list of authorities

section 105 of the DISTRICT COURTS ACT - a photocopy

appears there - contempt of court. So the two matters

that were really urged in the Full Court, the matters

that were discussed, were really whether there were

any proceedings properly before His H :rnour under

section 105 and, secondly, even if there were, whether

it was possible for His Honour to be convinced beyond

a reasonable doubt that the explicatory matters

mentioned here had been disproved; I mean, it is

somebody who wilfully insults a judge, wilfully

interrupts the proceedings of the court, without
lawful excuse disobeys, things of that kind.

It was said not one - it was not separated out

as to a single offence charged against the appellant. contempt", and that therefore was not a proper charge and secondly, the question was whether, in any event,

on that material, it was probable, bearing in

mind the remarks of this Court and other courts

whether it was possible to say that that line had

been crossed, that line which divides forceful

BlT2/l/HS	9	26/6/89
;,facGroa rt y ( 2)

legitimate advocacy which may at times even, in fact,

be rude, but still stops short of the line where

punishable contempt of court occurs.

Now, leaving aside for the moment the

question of the section, if I could go to the Full Court's

judgmentsat page 63 of the appeal book.	At page 59
the judgment of Mr Justice Matthews commences.	He

sets out the passage at some length and at page 63

he comes to dealing with the matter:

The applicant, by an affidavit which he

sought to use before this Court, queried

the correctness -

and he goes on then saying that he was going to

accept what His Honour said. Then he said:

It also emerges from the transcript that,

as His Honour later said, the applicant

had an opportunity to apologise before

being dealt with for the suggested contempt,

an opportunity which he rejected.

We submit His Honour has read far too much into that.

As I pointed out before, the transcript does not show

anything at all to that effect. It is completely

eq u i voca 1.	"Have you got anything to say why I
shan't punish you for contempt?"	His Honour might

have thought he was giving counsel the opportunity to

apologize, but there is nothing at all to show that

counsel understood that, but His Honour here - - -

DEANE J:  That is a double-barrelled thing though, is it not?

If you disown that being an invitation to apologize

the obvious alternative is to treat it as an

invitation to show cause.

MR HAMPSON:  That is so, Your Honour.

DEANE J:  I would have thought it was in your interest to accept the view that it was an invitation to apologize.

MR HAMPSON:  Yes. I quite accept that, Your Honour. My point

only is to indicate that there was an element of
confusion about all this. It underscores what we
are saying elsewhere. If one cannot be clear as to

whether His Honour was really saying, "I think that

I might have to deal with you for contempt. I suggest

it would be in your interests to apologize", that is

quite clear what is happening there, but on the

transcript here it is really not clear one way orthe

other and that just seems to underscore the fact,

whether it was heated, or whatever it was, that in

fact at the time there was a deal of confusion

attending the whole exchange. His Honour went on:

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MacGroarty(2)

The whole incident was, of course,

unfortunate and to say the least the

applicant was rude to the Judge in

circumstances in which he and the Judge

probably displayed a degree of heat during
the course of the argument reflected in

the transcript.

The question however is whether the

applicant's refusal by the words "No, I

won't " could have been reasonably thought

to be within the provisions of section 105

of the Act.

In our submission, His Honour is completely - that is

really what he meant, what he has written there - he

has completely got it incorrect.

McHUGH J:	Is this a code?
MR HAMPSON:	Yes. Section 105 is a code. All the contempt for the district court is within that section, yes,
Your Honour.
McHUGH J:	What about the common law doctrine of contempt 1n

the face· of th~ court?

MR HAMPSON:  Your Honour, it is said not to apply in the

district court here. It has been said that that 1s

the total code for the district court.

DEANE J:	Would not section 105(3) bring it in?
MR HAMPSON:	Or other means?
DEANE J:	"If any person shall do any other act. or thing which is a

contempt of a District Court"?

MR HAMPSON:  With respect, Your Honour, I would not concede that

it would bring in the common law. It would bring in

some other factual situations, perhaps, that had not

been mentioned there.

DEANE J:	Which is a contempt of the district court.
MR HAMPSON:	Which, in fact, is a contempt of the district court.

But, Your Honour, the attitude has always been that

these are purely statutory contempt, both in the district court and in the magistrate's court, in

Queensland and that you have to find within the

Acts constituting the court the contempt, quite

differently from the supreme court, of course.

McHUGH J:  What purpose does subsection (3) serve then,

Mr Hampson?

B1T2/3/HS	1 1	26/6/89
MacGroarty(2)

MR HAMPSON:  That would seem to me to be a drag-net

which, with respect, I would have thought would have

to be construed at the loNest, ejusdem ~eneris, with which

one has gone before, but relying~on some particular

factual matter. But we would submit that it does

not just bring in whatever other common law matters

there might be. It does not really matter for our
argument anyway because if someone was going to rely

on it you would still have to charge him with it. You would still have to say, "You are charged with

none of these other things that come within the

section, but - - -

McHUGH J:  It might strengthen your case.

MR HAMPSON:  Yes, but under subsection(J)"to wit" and

then whatever it happens to be. So that it does not

detract from our argument and,with respec~ we would

agree with what has fallen from Your Honour.	It mav
well strengthen the case that we are making.

MASON CJ:  You say that the attitude has been that section 105

is a code that ousts the common law of contempt.

Whose attitude are you referring to?

MR HAMPSON:  That has been the Full Court's approach here,

Your Honour, in Queensland.

MASON CJ:  But apart from this case, is there any establish

construction of section 105?

MR HAMPSON:  No, there is no established construction. It

was considered in the case on your list there,

Your Honour, DOW V ATTORNEY-GENERAL, (1980) CLR -

that is the Full Court considering the district court.

The Full Court was comprised there of the two former

Chief Justices and also Mr Justice Campbell.	Thev
said - I am just looking at the headnote:

That in defining certain offences in subsec. (1) and "any other act or thing

which is a contempt" in subsec. (3),

s. 105 of the Act covers the field of

contempt in the face of the Court in

proceedings in a District Court.

Tha~ has been the attitude that, in that sense,

the section provides the code. I think to a similar

effect, but it is not terribly relevant, was the earlier

decision of the Full Court in McKENNA's case, which
is also on the list, but that touches the magistrates

court not the district court.

The way His Honour has expressed this matter here,

we would submit, is indicative perhaps that he has

fallen into error. It is not a question as to whether

the words " c o u 1 d r ea s on a b 1 y" have been though t t o be

within the provisions of section 105 . It is

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MacGroarty(2)

a question of whether the applicant's refusal,

with the use of those particular words was beyond

reasonable doubt an offence against one of the

provisions of section 105 and His Honour seems to

have adopted some vague civil test here, whether it

could have been reasonably thought to be within the

provisions of section 105. His Honour then went on,

dealing with the common law situation as to what was

contempt. He then mentioned the decision of this

Court in LEWIS V OGDEN where:

of the COUNTY COURT ACT 1958 (Vic), a	the acts mentioned in section 64A(l)
section which for present purposes may
be compared withs. 105(1) of the Act,
are acts which in their very nature
interfere or have a tendency to interfere
with the administration of justice. If a judge is to maintain the dignity of his Court he must necessary control the right of persons to speak and in the circumstances of what occurred in the particular case I
think that his direction ot the applicant to
keep quite while he, the Judge, was speaking could only be considered as a lawful direction
which the applicant said he would not respect.
Whether this could be considered as a disobedience of the direction may be doubtful -

His Honour has there identified one limb, as it were,

or one possible offence arising under section 105,

although he says he doubts it -

but it would, in my view, amount to

wilful misbehaviour -

that, of course, is a different offence under

section 105 -

It was further submitted to us that the

judgment of the Court in LEWIS V OGDEN

required that the applicant in effect be

contempt should be specified (see the

judgment of the Court at p. 346) -

charged in the sense that the nature of the

that, indeed, is what	this Court did say in that
case.

In the instant case and from a reading of the

transcript and bearing in mind that the

applicant was a member of the Bar of

considerable experience, I think that when

His Honour in effect sought an apology and

gave the applicant an opportunity to

apologise both he and the applicant well

knew what was the com?laint against him and

what were the facts which His Honour thought

constituted a contempt.

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MacGroarty(2)

That is an approach to the matter which really was
not accepted as long ago - and it came in the second
volume Your Honours will have before-your associates.

There is a little document, Supplementary List of

Authorities. It contains LEWIS V OGDEN in the

Commonwealth Law Reports - our original volume had

it in the Australian Law Journal ~but it also

contains the case of RE POLLARD.

McHUGH J:  Just before you take us to that, where is the actual

order of conviction in this case?

MR HAMPSON:  There is none, Your Honour. There was no order

apparently taken out, served, or anything.

McHUGH J:	Is it necessary to take out an order in these proceedings?
MR HAMPSON:	If in fact it was to be enforced it would be

necessary to do so, but I understand that under

protest the applicant paid the fine later that day

or next morning, or something, at the end of the trial.

McHUGH J:	But, nevertheless ,as a matter of record - - -
MR HAMPSON:	Yes. Well, no order was in fact taken out.
McHUGH J:	Should we not know what it is that he has been

convicted of? After all, you are seeking to appeal

against an order.

MR HAMPSON:	The only information we have of the order are the words of His Honour on the transcript, Your Honour, I
am sorry to say.  That is all it is. It is rather
evanescent, I know, but that is all we have.
McHUGH J:	Yes, thank you, Mr Hampson.
MR HAMPSON:	The other case was - I was saying that that

question, the idea that you do not have to specify

things because the person is a barrister, and so

forth, really was put to rest as long ago as that
case of RE POLLARD in 1868.	That is an opinion of

the Privy Council in (1868) 2 LR PC 106, but the
headnote says:

A contempt of court being a criminal offence, no person can be punished for

such unless the specific offence charged

against him be distinctly stated,

and an opportunity given him of answering.

A Barrister engaged in his professional

duty before the Supreme Court of Hong Kong, was,
without notice of the alleged contempt, or
rule to shew cause, and without being heard

in defence, by an Order of that Court, fined,

and adjudged to have been guilty of several

BlT2/6/HS	14	26/6/89
MacGroarty(2)

contem~ts of Court in disrespectfully

addressing the Chief Justice while

conducting a cause. Such Order, upon

a reference by the Crown to the Judicial

Committee, under the Statute ..... set aside,

and the fine ordered to be remitted, first,

on the ground that the Order was bad,

inasmuch as the offences charged were not of

themselves such contempts of Court as

legally constituted an offence; and

secondly, that even if they had been so,

no distinct charge of the several alleged

offences was stated, and no opportunity

given to the party accused of being heard,

before passing sentence.

The appellant in that particular case, Mr Pollard,

was a Queen's Counsel who was appearing in Hong Kong

in a suit before the Chief Justice and there is a long

history of what had happened and what misunderstandings

there might have been and this was then followed -

there was a later case - this was then followed bv 3

long judgment or something in the nature of an -

indictment which the Chief Justice brought against him

and it ends at page 117 where he says:

I pronounce you guilty of grave contempts,

and as, from equal necessity, this is the

only Tribunal that can award the punishment,

I now fine you in the sum of $200, and, furthur,

I suspend you from practising before this

Court as a Barrister and Advocate for a

period of fourteen days, or until the fine

shall be sooner paid -

and he goes on to say that he has set that at the

lowest possible, and so forth.	Now, the Privy C,uncil,
at page 120 said:

At the close of argument, their Lordships

intimated that they would certify their

opinion to Her Majesty upon the matter. No judgment was given, but the following

report was made by their Lordships, and

confirmed by Her Majesty's Order in Council,
dated the 19th June, 1868:- "The Lords of
the Committee, in obedience to your Majesty's

Order of Reference, have taken this petition into consideration, and having heard Counsel

on behalf of Edward Hutchinson Pollard, and

having likewise been attended by Counsel

on behalf of His Honour the Chief Justice

of Hong Kong, their Lordships do agree

humbly to report to your Magesty that, in

their judgment no person should be punished

for contempt of Court, which is a criminal

of fence , u n 1 es s the s p e c i f i c of fence ch a r g e d against

BlT2/7/HS	15	26/6/89
MacGroarty(2)

him be distinctly stated, and an opprotunity

of answering it given to him, and that in the

present case their Lordships are not

satisfied that a distinct charge of the offence

was stated, with an offer to hear the answer

thereto, before sentence was passed.

They go on to deal with the other allegation that

in fact there had been several offences, according

to the Chief Justice, for which he had just given the

one finding and the one penalty. But we would submit

that that really is an answer to the opinion of

His Honour Mr Justice Matthews that just because

the appellant in fact was a counsel and a member of
the bar of considerable experience that somehow or

other he was supposed to know, or to put it another

way, the rule of law that required him to be informed

could be broken with impugnity and he did not have to

be charged.

Now, that is His Honour Mr Justice Matthew's

decision. Mr Justice Carter's reason for judgment

start on page 66 and he set out section 105 at page 68

of the appeal book and he categorized the remark of

counsel to Judge Loewenthal:

I am in no doubt that this remark

constituted a grave discourtesy to the

Bench. However, the application raises a

quite different question.

Section 105 of the DIST~ICT COURTS ACT

has the heading "Contempt of Court" -

and then he sets it out in full, and it is interesting

in setting it out that you have the different

offences:

(a) wilfully insults .... .

(b) wilfully interrupts ..... or otherwise

misbehaves himself in Court -

it is not presently relevant, but -

(c) unlawfully obstructs or assaults .....

(d) without lawful excuse disobeys any

lawful order or direction of the Court .....

and then finally, as members of the Court have

pointed out you have (3):

If any person shall do any other act or

thing which is a contempt of a District

Court he shall be guilty of an offence under this section.

BlT2/8/HS	16	26/6/89
MacGroarty(2)

Now, His Honour having set that out said:

Sub-section (1) specifies the categories
of conduct in which any person might engage
and for which "he shall be guilty of an offence"
for which he may be dealt with in a variety

of ways - by excluding him from the Court, by

an order that he be detained in custody

until the rising of the Court, by an order
that he be committed to prison for a period
not exceeding three months or by the

imposition of a fine not exceeding $300.00.

By sub-s. (3) an offence is created if

he "shall do any other act or thing which

is a contempt of a District Court." I have

added theunderlining to emphasise my view

that whilst Jub-s. (1) particularizes certain

conduct as constituting contempt of Court,

sub-s. (3) also makes a person guilty of the

offence for "any other" conduct i.e. other than

that specified in sub-s. (1) which constitutes

a contempt of the District Court.

(Continued on page 18)

BlT2/9/HS	17	26/6/89
MacGroarty(2)
MR HAMPSON (continuing):

To constitute a contempt at common law

in the face of the Court or in the

face of proceedings, words or conduct

"must be such as would interfere or

tend to interfere with the course of

justice": PARASHURAM DETARAM

SHAMDASANI V KING EMPEROR ..... Sub-section

(3) therefore is designed to

comprehend any conduct in the face of

the Court other than that particularised

in sub-s (1), but which satisfies the

test in PARASHURAM, and to constitute

that conduct an offence. In

DOW V ATTORNEY-GENERAL ..... Campbell J

said:

"In defining certain offences in

sub-section (1) and 'any other

act or thing which is a contempt'

in sub-s (3) the section appears

to cover the field of contempt
in the face of the court in

proceedings in a District Court."

DOW's case must now be read with the

decision of the High Court in LEWIS V OGDEN

..... a case in which counsel was charged

with contempt by a trial judge in the

course of a criminal trial. Section 54A of

the COUNTY COURT ACT (Vic) defines

certain conduct as a contempt in terms

similar to, but in some respects quite

different from, that set out in s.105

but nonetheless the remarks of the High

Court are to be understood as applicable

when resort is had to s.105 of the

DISTRICT COURTS ACT. In that case the

trial judge had called upon counsel to

show cause why he should not be dealt

with for contempt but without distinctly formulating "a specific charge of	contempt". It is clear however from the
r~port(at p 343) that the trial judge had
alleged that counsel's remarks to the
jury concerning the judge constituted a
wilful insult to the judge in terms of
s.54A(l)(a) of the COUNTY COURT ACT. The
case before us was argued -

and it was really argued by the Crown cm this

basis -

on the basis that by refusing to stop speaking

as directed by the learned trial judge and in

responding with the words "No. I won't",

counsel had committed a wilful insult and had

been properly convicted.

BlT3/l/JH	18	26/6/89
MacGroarty(2)

MASON CJ:  Now, is that correct because Mr Justice Matthews took a different view?

MR HAMPSON:  That is so, Your Honour, yes. But that

was the argument - - -

MASON CJ:  They are not necessarily inconsistent. It may

be that the case was argued.

MR HAMPSON:  No, I think all His Honour means is that the

Crown argued that. I mean, I was in the case

before the Full Court and I am quite sure that I

did not argue that in fact by refusing to

stop speaking as directed he had committed a

wilful insult. I am perfectly certain that there

was no part of my argument - what His Honour is

really saying when he says, "It was argued",

he means the Crown - - -

MASON CJ:  But that was the sole case put against you in

the Full Court, was it?

MR HAMPSON:  Yes, that is so, Your Honour:

An examination of s.105(1) discloses

a variety of conduct any species of which

might constitute "an offence".

You see, I think one of the things we were doing in

the Full Court, was saying, "Well, it could be

this. It could be this. It could be this"and so on. I

think what 1--r Justice Carter got on to, he said, 'Well, this is
the one the Crown was pu31::.ing an1-way'', I think that is really

what that means:  ·

MASON CJ: Yes.

MR HAMPSON:	An examination of s.105(1) discloses a
variety of conduct any species of which
might constitute "an offence".  A wilful
insult to a judge, juror, registrar,
bailiff or other officer whether in
Court or in going to or returning from
proceedings of the Court, wilful  Court, wilfully interrupting the
misbehaviour in Court, unlawfully
obstructing or assaulting a person in
attendance in Court or disobeying a lawful
order or direction of the Court without lawful excuse are all matters comprehended
by sub-s (1). In each case the elements of the "offence" are defined differently.
Sub-section (l)(a) and (b) requires that the
insult, the interruption or the misbehaviour
be wilful i.e. intentional and deliberate
(see LEWIS V OGDEN supra at 344).
Sub-section (l)(c) requires that the

BlT3/2/JH	19	26/6/89
MacGroarty(2)

obstruction or the assault be unlawful.

Sub-section (l)(d) requires that the

disobedience in respect of the lawful

command or direction bewithout lawful

excuse. The section therefore not only

defines the various offences and their

elements, it also, as in the case of

many of the offences defined in the

Criminal Code, protects the person

concerned by giving to him the right to

assert that his conduct does not amount

to an offence because his insult was not

wilful, that his interruption or
misbehaviour was not wilful, that his
obstruction or assault was not unlawful and

that the circumstances of his disobedience

provided him with a lawful excuse. This

examination of s.105 reveals therefore the

wide variety of conduct comprehended by it
- from, on the one hand, counsel

addressing the most insulting cf. remarks

to a judge or juror to, on the othe~, a

visitor to the Court who insists on. blowing

a bugle in the course of the evidence.

In my view it is clear that the

conduct of counsel in this case comes

arguably within the terms of

sub-paras (a), (b) and (d). There is no

need to consider sub-s (3) in this

context -

It was not necessary for the purpose of his

argument but one could, I suppose, if one wanted

to, consider it as well. But, His :Honour has

three anyway, (a), (b) and (d) -

It might be submitted that by indicating

a refusal to stop speaking when asked to,

counsel was wilfully insulting the judge

(sub-s (l)(a)), or wilfully misbehaving

(sub-s (l)(b)) or disobeying a lawful

order or direction of the Court

(sub-s (l)(d)). It might also be submitted
that counsel in refusing to stop speaking

was not intentionally or deliberately being

· insulting nor misbehaving intentionally or

deliberately and he might well assert a

lawful excuse to disobey the lawful order

or direction.

This exchange occurred in the course

of a criminal trial between counsel who

was cross-examining an important witness
and the learned trial judge who was

obviously concerned that counsel's

cross-examination had become tedious and

repetitive.

BlT3/3/JH	20	26/6/89
MacGroarty(2)

TOOHEY J:  Mr Hampson, I am not sure why you are reading

page 72. It is all encapsulated finally on

page 73, is it not ,in His Honour's decision that

whether that had been arguably an offence under

any of the paragraphs of the relevant section,

there had been a failure to specify under which

paragraph the appellant was to be dealt with?

MR HAMPSON:  That is quite so, Your Honour, on this

point. The only reason I am reading on 72 is

because we do have the second point; we are wrong on the first one. The second point is that there

was no evidence upon which His Honour

Judge Loewenthal - or for that matter the

Full Court, when you look at the transcript here -

could have found affirmatively the fact that

an offence had been corrrrnitted, whichever one you

label	it, that there had been no lawful
excuse,or whatever it happened to be.	And, I think,

that the remarks of His Honour here are relevant

to that particular matter. I shall not read them

but I do point out that he talks about the

necessity of cross-examining; he points out the

need of counsel to plead his case fearlessly, and

so forth:

The question is whether in this atmosphere the refusal of counsel to do what the trial

judge had requested constituted an offence

within s.105 and therefore rendered him

liable to be dealt with for contempt -

is really a different point from the categorization

point. He went on to LEWIS V OGDEN and he really

comes back now to this categorization point because

he points out:

It is necessary to dwell on the third and

final comment which emphasises the need for

particularity in a charge of contempt.

And then, as Your Honour says, on the next page

he deals with the different possibilities that

could have arisen. Then he says his ratio

is reached, in the second sentence there:

The learned trial judge did not do other

than to say that he proposed to deal with

the applicant for contempt of Court. I am

content to base my decision in this case,

that the conviction should be quashed, on

the ground that the nature of the charge of

contempt under s.105 was not specified -

and he was denied and so forth.

BlT3/4/JH	26/6/89
MacGroarty(2)	21
DAWSON J:	Mr Hampson, it is one thing to specify the conduct which is complained of and that was done
here, was it not?
MR HAMPSON:	He said -
DAWSON J:	It is clear enough that it was the refusal to

be quiet while the judge was speaking is

the conduct which the judge considered constituted

an offence.

MR HAMPSON:	Yes, that is so, Your Honour.
DAWSON J:	He said "if contempt" - there does not appear to be an offence of contempt under the section
but then under the preceding subsection there are other offences which - or at least under the
heading "Contempt" at all events. And, you say,
that what he qught to have done - what the jidge
ought to have done - is to have specified whether
it was under l0S(a) to (d) - that is
subsection (1) (a) to (d) - or 105(3)?

MR HAMPSON: That is so, Your Honour.

DAWSON J:  Notwithstanding that subsection (3) m:rely speaks of contempt.
And, you could not specify the offence other than to specifv the

. ,actual conduct if he was proceeding tmder subsection ( 3) . ,

MR HAMPSON; But, tnder (1), Y9ur Honour, as His Honour Hr Justice Carter

poi...T1.ts out, he .could in fact have three specifications .ar~bly

of the-smre conduct.

DAWSON J:  Yes. Do we know whether the judge was purporting

to proceed under subsection (l)~or subsection (3)?

MR HAMPSON:	No, with respect, we do not, Your Honour.
DAWSON J:	So, that if he was proceeding under subsection (3),

he may have been doing so inappropriately but the

procedure he adopted was not wrong?

MR HAMPSON:  Well, again, he did not give any

particularity of what he was doing.

DAWSON J:  Well, it was clear enough, as you said, that he

was accusing Mr MacGroarty of refusing to keep

quiet while he was speaking.

MR HAMPSON:	Yes.
DAWSON J:	Well, you cannot specify the conduct more than

that, can you?

MR HAMPSON:  No, but really, one has to say and I am

saying - I am accepting what Mr Justice Carter

says here - and you have to say that that

constitutes a disobedience without lawful excuse

BlT3/.5/JH	22	26/6/89
MacGroarty(2)

to a direction I have given. You must say that

because it is open to counsel - it is open to

MacGroarty to say, "But, look, I do have lawful

excuse and I want you to hear my lawful excuse".

DAWSON J:  Yes, I understand your submission. I was

comparing it with the case of POLLARD where

apparently the judge would not tell the barrister

exactly what it was that he had done and in that

sense did not specify the offence, which is

slightly different from this case.

MR HAMPSON:  Yes, I see. Yes, it is quite so. My interest

in POLLARD was only to show that Mr Justice Matthews

seemed to think if you have a barrister, well he

gets a shorter deal on particularity than anybody

else; for some reason or other he is supposed to

know what it is about. POLLARD's case says, "No,

he was Queen's Counsel and the general rule applied".

The way the general rule was broken there, of course,

was different from the way the general rule is

broken here. But, I do not put any further alliance

in POLLARD for that reason any more than, for

example, another one of our list there,

COWARD V STAPLETON. It is another decision of this

Court and at pages 579 and 580 there are remarks

going to the necessity of particularizing and

making clear just what the contempt~

COWARD V STAPLETON at page 579 and going on to page 580;

it is a passage in the joint judgment of the
Acting Chief Justice Williams and Justices Kitto and

Taylor. It starts:

Now, in this case it is not suggested on

behalf of the appellant, either in the notice of appeal or in the submissions of counsel, that Clyne J was not justified

in forming a prima-facie opinion

and then it goes down further showing that the

High Court Rules are used because the Bankruptcy

Rules were silent. And:

Rule 1 of 0.49 of the relevant High Court

Rules provides for bringing before the court a person alleged to be guilty of contempt

of court, cormnitted in the face of the court or in the hearing of the court, and provides

further that the court shall cause him to be
informed orally of the nature of the

contempt with which he is charged, and shall

require him to make his defence to the

charge, and shall after hearing him

proceed, eic~er forthwith or after
adjournment, co determine the matter of the
charge, and sha l make such order for the
punishment or d scharge of the accused perso~

BlT3/6/JH	23	2616/89
MacGroarty(2)

as is just. Even apart from any such

exp~ess provision, however, it is a

well-recognized principle of law that no

person ought to be punished for

contempt of court unless the specific
charge against him be distinctly

stated and an opportunity of answering

it given to him.

TOOHEY J:  What does that mean in the present case,

Mr Hampson, does it mean that the judge should cc

more than identify the act?

MR HA.!."1PSON:	Yes, Your Honour.
TOOHEY J:	Do you mean he should specify the particular

paragraph of the section which he regards the

act as infringing?

MR HAMPSON:  Yes, Your Honour. He should say - what he

should have said was, "I have given you a law:·--1.::..

direction to resume your s~:J.t" - or whatever :he

case may be - pursuant to the section.

DAWSON J:  But he says almost that, does he not,

Mr Hampson? He says, "I said, will you stop

speaking while I am speaking, you said you wo~-~

not". That goes beyond bad manners; it is

deliberate contempt.

MR HA."'1PSON:  Well, that is what he says. I mean that :s

a difference between what the judge is now

recounting - Your Honour is reading from a

passage in which the judge is recounting what :--.e

said happened before.

DAWSON J:	Yes, you are right.
MR HAMPSON:	It is- instructive to read that and see tha:

nowhere does His Honour refer to the section Jr re:er,

even accepting his own view of the matter, as :c

what the charge was. Iu just proceeds on the basis QI{ ~the says the evidentiary matter ~~s.

DAWSON J:	I am not too clear. I thought you were right
for a--HiQID.ent, but is that before he has been convicted for contempt or not?

MR HAMPSON:	No, that is after, Your Honour.
McHUGH J:	No, it is not. It is before.

DAWSON J: No, it is before, I think, Mr Hamnson.

::R :-LA.::{PSO01: Sorry, I :cac:1. ::e::er turn to the ?assa2:e ::--.e::..

DAWSON J:  Page 14, I an 2-cc~i::.g at.

_:_ -+ :ffi. HA.t'1PSON, QC ~ ~	.-..	,,...	""t.	-l
-, '

B1T3/7/JH
M:acGroarty(2)

MR HAMPSON:	Page 14:
I told you to stop speaking while I was speaking
and you have refused. Is there any reason why I
should not deal with you for contempt?
MR :MACGROARTY:  I am trying to put on the record
HIS HONOUR: Will you answer my question?
MR :MACGROARTY:  I was.
HIS HONOUR:  I said, "Will you stop speaking while
I am speaking?" You said you would not. That
goes beyond bad manners. It is a deliberate contempt as far as I can see.
MR :MACGROARTY:  I was trying to put on record - - -
HIS HONOUR:  "Will you get down to tne issue?" I
said -

well this is after - yes - he has removed it. But

this is consistent, with respect. I~ in fact,

His Honour had said, "I have given you a direction to

stop talking", the counsel is entitled to say, "But I
have a lawful excuse for not obeying that direct:ion."

Maybe that is what he was trying to say, I do not: know. But no one directed, as Mr Justice Carter pointed out -

no one directed their minds to the section under which

these charges could be made.

All we have here is the evidence and the evidence has to be formulated as a charge, it must sit within

the confines made. by. a st.a,tute which· amounts to a charge

which says that the evidence, so fitting in those

confines, becomes an offence if it is found beyond a

reasonable doubt. That is what was not done and it is

important in the present case because there are at

least three different possibilities - one could 2r~ue

just what this amounted to - and there were different

defences to it and in fact, the judge was of the

view that it was a refusal to obey a lawful direction

but that the issue would have been whether counsel had

a lawful excuse for doing that. And he might have

persisted with his statement, "I have a lawful excuse
because it is my obligation, as counsel, to ensure that

the record contains a statement on my behalf that I 11

am - whatever it happens to be without going into

details of it.

On the other hand, if what His Honour was saying,

"You have insulted me. What you have done is insulted

me because I told you to do something and you said you

would not." That is an insult and, again, as

His Honour Mr Justice Carter said, it arguably could

support that charge - a different charge. The same

BlT4/l/DR	25	26/6/89
MacGroarty(2)

evidence could support that charge. The issue then

comes: can His Honour be satisfied, beyond a reasonable

doubt, that this was done wilfully, that it was a

wilful insult, or is it something rude but it is not a
wilful insult? And that is really the important point

in cases of this particular kind, Your Honours.

DAWSON J:  What more could His Honour have done if he had been

intending to proceed under subsection (3)?

MR HAMPSON:  With respect, Your Honour, first of all, there was no

need to succeed under subsection (3) because there were

three clearly arguable matters which were quite

obvious under subsection (1). That was the first point,

that it would have been rather obtuse to say, "Well,

I cannot see how any of these three can possibly

furnish adequate charges on these facts."

DAWSON J:	I suppose you would say they are not included in
(3) because it talks of any other act or thing.

MR HAMPSON:  That is so. So he should have selected one of

those three there. Subsection (3) is there only to

cover the situation when what is in (1), for some

reason or other, cannot possibly be made to sustain

a charge. So he should have then picked one of those

three. Now, which one he picked, as Mr Justice Carter

says, is illmlaterial from his point of view, as it were,

he could pick any one, but it is very material from

my client's point of view because it does mean that

different things have to be proved against him and he

has a different excuse or meliorating set of

circumstances which he can endeavour to establish.

DEANE J:	If you read what His Honour said in the context of what His Honour said he had done, at page 31-32
there is something to be said for the view, is it not, that His Honour did not address the question whether
it was necessary to convict your client.

MR HAMPSON: Sorry, 31-32, Your Honour.

DEANE J: Page 32 of the appeal book.

MR HAMPSON: Is that the transcript reference?

DEANE J: Pages 15-16.

MR HAMPSON:  Thank you, Your Honour.

DEANE J: His Honour seems to have acted on the basis that your

client was obviously guilty of contempt of court and

should be given the opportunity of apologizing.

MR HAMPSON:  Yes, yes, that is another way, with respect, that

you could read this reference to an apology, that,

"You are guilty. I found you guilty, without having

really said under what branch of the statute I am

BlT4/2/DR	26	26/6/89
MacGroarty(2)

treating you because I know what the facts are, they

will fit any one of the three. So I have found you guilty and I did not really have to turn to my mind as to whether you might or might not have had a

reasonable excuse. But now being guilty, have you

got anything to say why a sentence should not be

passed on you and an apology will do you a lot of good:"

That also is a possibility, reading from the

transcript.

DEANE J:	The other side of it, of course, is -the main problem
from your point of view is the bottom of page 14,
is it not, where His Honour said:

I am giving you the opportunity before I deal

with you for contempt.

And your client said:

I have nothing to say about that.

MR HAMPSON:  Yes. But I do not know - you see, "before I

deal with you for contempt", again, Your Honour, we

would still say that does not go far enough and we

respectfully accept what Mr Justice Carter says,

"I aw giving you the opportunity before I deal with you

for contempt_and in so doing I say that it is my

opinion that you have failea·co obey a lawful direction

that I have given you without any lawful excuse.	Now
what.do yqu have to say to that?"

Now, he could have done a number of things. He

could say, "Well, look, I would like to have an

adjournment for a moment" or something could have happened.

But you would have had a properly raised charge. But

His Honour did not do that. His Honour said, "I am

giving you the opportunity before I deal with you for

contempt." And His Honour, later on, of course, used

that - that is the very passage to which Your Honour has

referred, later as saying, "That was the place where I

gave him the opportunity of apologizing."

That was the very same -but when Your Honour

went on to that other passage at the bottom of page 31

where he says on getting things down:

instead of stopping and giving me an opportunity

of saying ..... I then called on him, having to

raise my voice very substantially and told him -

and so forth.

TOOHEY J: It is rather unsatisfactory, Mr Hampson, I thin~ to

have regard to the foot of page 15 and page 16 from

either point of view, is it not? After all,the matter

is concluded at that point and it becomes, to some

extent, argumentative as to what had happened earlier.

BlT4/3/DR	27	26/6/89
MacGroarty(2)

MR HAMPSON:  Well, unfortunately, the Full Court did rely on it.

His Honour Mr Justice Matthews talked about what had happened later on and what His Honour said.

TOOHEY J:  But from the point of view of assessing the argument

that you are presenting now, namely, whether the

charge had been adequately identified, I mean that

really begins and ends, or rather it ends, before the

court resumed at 3.12 that afternoon.

MR HAMPSON: Exactly, Your Honour, yes. Exactly, save only for

this that if as the Full Court seemed to think it was
they are entitled to look at what His Honour said at
the bottom of page appeal book 15:

Before I go on with this case, in case the shorthand writers could not get a full record

down, I hope they did, I will put the following

matters on record.

They seemed to treat that as a little judgment he had

written and to 'Nhich they could give weight. Now I would

respectfully agree with Your Honour. I would say

that is something that is thought about later on, that

is a reserved decision, if you like, after the

question of the alleged contempt has been dealt with

and is completely finished.

TOOHEY J:  If you say the judge had come back later and said.

"I intended to deal with you under paragraph (a), (o)

or (c)", if that did not emerge from what in fact had

happene~ it does not seem to me to advance the

matter.

MR HAMPSON: 

No, it does not, Your Honour, but I can only point

out why I went to there, is that the Full Court seemed,
or the majority in the Full Court seemed, to give this

some weight because, perhaps, the reason is that the

transcript is so skimpy.  When you look at the actual

transcript leading up to the stage when:

HIS HONOUR:  Mr Bailiff, remove Mr MacGroarty

from the Courtroom. Take the jury out first -

and those other remarks, it is very unclear what

happened. But, I think, all I was really trying to

say was that Mr Justice Deane raised the question

with me about going back to page 30 and saying those

words of His Honour:

I am giving you the opportunity before I deal with you for contempt.

And I make some submissions with relation to that, but I did want to point out that at page 16 of the

appeal book, he says:

I sent the jury out and gave him an opportunity of apologising.

B1T4/4/DR	28	26/6/89
MacGroarty(2)

Right up at the top of page 16. So, in other words,

later on, what His Honour is saying, is, "When the

transcript reveals me as saying, after the jury

went out, 'I am giving you the opportunity before I

deal with you for contempt' what I was really doing -

I had really found you guilty of contempt but I was

giving you an opportunity to apologize.	I was dealing
with sentence, in other words."

MASON CJ:  It may be that His Honour overstated the case against

himself when he said that, because if you look at what

transpired immediately after the jury retired, at the

middle of page 14, you will see that His Honour there

said:

I told you to stop speaking while I was

speaking and you have refused. Is there any

reason why I should not deal with you for

contempt?

And I would have taken that to be an invit~tion to

your client to then address any remarks on the subject

of whether he was guilty of contempt, quite apart
from any question of penalty. And so it proceeds.
again consistently, with that interpretation, dovm to the

point where your client says:

Nothing, Your Honour -

in response to the question:

What have you to say about that?

MR HAMPSON:  Yes, well so far as I can say with this, Your Honour,

it is quite confused and it can be read in a number
of ways, I would submit, and one of the things - and

even on Your Honour's reading of the matter there,

the thing that is still missing, and we submit that

it really is - from Mr Justice Carter, following

what this Court said in OGDEN's case, LEWIS V OGDEN,

is thatitisnecessary to tell him which arm of the

statute that you are dealing with and that has not

been shown at any stage.

If he had then been silent and said, "No, I am

not going to try to put up I had a lawful excuse".

One would have thought though that if his attention

was directed to what was supposed to be a lawful order,
which he did not carry out through absence of lawful

excuse, that was one thing you would have thought

would have been hotly resisted because at various points

in the transcript he keeps saying, "Look, I am

entitled to do this. This is important. I do not

want to be accused before the jury of asking things

that are not important because it is an important

witness and it is important that I get this

inconsistency that he has been guilty of before the

BlT4/5/DR	29	26/6/89
MacGroarty(2)

other tribunal 11 and so forth. One would have thought

that the question of a reasonable excuse for what he

was doing would have loomed largely in his mind.

TOOHEY J:  But that is a different direction, is it not. The

passage to which the Chief Justice has drawn your

attention on page 14 is a passage in which the	complaint that the judge is making is of your client 1 s
refusal to stop speaking while he was speaking.

MR HAMPSON:  But my client - - -

TOOHEY J: There had been an earlier direction, if you would

like to call it such, in relation to putting the

depositions to the witness. But at this point the

judge seems to be focusin~ on his direction to the

appellant to stop speaking while he, the judge, was

speaking.

MR HAMPSON:  Yes. What he does say though, with relation to it:

HIS HONOUR:  Mr MacGroarty, I told you to stop

speaking while I was speaking and you have

refused. Is there any reason why I should not

deal with you for contempt?

MR MACGROARTY:  I am trying to put on the record - - -

HIS HONOUR: Will you answer my question?

MR MACGROARTY:  I was.

So it is still, with respect, Your Honour -it seems to

me that what is in counsel's mind is that his is

trying to answer the question in terms of saying, 1
'Why I did not stop speaking." Which, in other words,
put another way, if the charge read that way would be

saying, "There is my lawful excuse". That, in fact,

was what, we would submit, he was trying to say

because His Honour then said, "Will you answer my

question?" And his says, "I was."

He is really saying, "Yes, I-" then His Honour

went on:

speaking? 11 You said you would not. That goes	I said, "Will you stop speaking while I am
beyond bad manners. It is a deliberate contempt
as far as I can see.

Then he goes back:

I was trying to put on record that Your Honour,

in making a ruling, passed an opinion that I

was not getting down to the issue.

HIS HONOUR:  ''Wil 1 you get down to the is sue?" I

said to you, "Will you stop speaking while I am

B1T4/6/DR	30	26/6/89
MacGroarty(2)

speaking?" You said you will not.	What have you
to say about that?
MR MACGROARTY: Nothing, Your Honour.
HIS HONOUR:	I am giving you the opportunity

before I deal with you for contempt -

and I have already made that.

DAWSON J:	Mr Hampson, is it your case that nothing less would have done than that the judge should have either
charged him in the language of one of the paragraphs
(a), (b), (c) or (d) of subsection (1), or referred to
one of those paragraphs in charging him?
MR HAMPSON:	Yes, Your Honour.

DAWSON J: Yes, well I understand that.

MR HAMPSON:  Yes, and I submit that that is quite clear because

otherwise you are left in a limbo as we are left here.

We do not know real J.y here precisely what the judge

had in mind. He had the possibilities of saying,

"That is a wilful insult"; "a failure to obey my

direction", and so on. As Mr Justice Carter said, we

do not know exactly what the nature of the contempt
alleged was. We know what the evidentiary nature of

the contempt was but that is not the same thing. In

our submission, for there to be a proper charge.	You
are to be told, in fact, what facts constitute the
offence that is relied on and he was never told.

McHUGH J: Well, the difficulty is manifest when it comes to

drawing up the terms of the conviction.	You would not
know what paragraph he was - - -

MR HAMPSON:  You would not. If someone asked here now, "Now

what was that?" you could do no better than say,

"He has been found guilty of contempt." But, as

Your Honour points out, I mean that would not be

drawing a conviction in terms of the section, just

to sort of put everything in and say - - -

MASON CJ:  And the judgments in the Full Court would not assist

you in that either, would they?

BlT4/7/DR	31	26/6/89
MacGroarty(2)
MR HAMPSON:	Well, not the majority judgments.	The majority

judgments - - -

MASON CJ:  One majority judge says, "refuse leave", and

the othe~ in effect, dismisses the appeal having

granted leave, and then you have got a third judge

who dismisses the appeal.

MR HAMPSON:  They got it all together in the end though,

Your Honour.

MASON CJ:	Who allows the appeal, I mean.
MR HAMPSON:	I am sorry.
MASON CJ:	I said, the third judge allows the appeal.
MR HAMPSON.	Yes. Well, what they did - there is a passage -

when they actually came to give the judgment, Mr Justice Matthews as presiding judge said -

attention was drawn by him, page 49, to the

disconformity of the way that they had approached

the matter, and at page 49, he said:

In my opinion this appeal should be

dismissed. I publish my reasons for so

doing ..... Mr Justice Carter however, for the

reasons which I now publish on his behalf, was

of the opinion that the applicant should have

leave and that the appeal should be allowed.

Mr Justice Dowsett, whose reasons I am

authorised to publish - and I do that now -

was of the opinion that the applicant should
have leave but that the appeal should be

dismissed.

So to give some conformity to the situation in

the Court I propose - although I have said in
my reasons there should not be leave to

appeal - to grant leave to appeal, but make an order

dismissing it.

So what yru had was that two judges gave leave- formally,
they gave leave and dismissed the appeal.	The third
judge gave leave and allowed the appeal.

McHUGH J:	Could you help me, Mr Hampson? How does it come about
that the Minister for Justice and Attorney-General
is the respondent as opposed to the Crown?
MR HAMPSON:	I think there is a provision in the statute that

says that he is the person who is - I think in the

DISTRICT COURTS ACT, Your Honour, I have an idea -

I will just get that turned up, but I think that he

has a certain part to play with relation to these

statutory contempts.	We will certainly look that up,
Your Honour.

BlTS/1/FK	32	26/6/89
MacGroarty(2)

MASON CJ: There is another point I might mention, Mr Hampson,

which probably goes to those behind you rather than

to you, but why is it that we are favoured with two

sets of the judgments in the Full Court in the

application book, and I notice that that is a

characteristic of some of these application

books in Queensland -

MR HAMPSON:	I do not know, Your Honour.
MASON CJ:	- - - because a later case in the list again has
two sets of the judgments in the Full Court. It
seems an unnecessary exercise.
MR HAMPSON:	It is, Your Honour. mine because otherwise they get in the road, you are putting marks on both of them. But it seems, I put an elastic band over
Your Honour, that either one could be content with
the affidavit which always exhibits the judgments
and that would be enough, they would appear there,
or else you take the record.  One or the other would
be good enough, but unfortunately they have done
both here, that is so.
MASON CJ:	I was wondering whether you wanted to impress us
doubly with what Their Honours haci  to say.

MR HAMPSON:  No, Your Honour, no. If that was the case I would

have had two of Mr Justice Carter's judgments.

Going then, _ if Your Pi.0nours please, to the third member

of the court, that is the judgment of Mr Justice Dowsett,

it is quite a short one.	He sets out the facts and
so forth.	He accepts that it was an important

witness, and so forth, ~nd he accepts - - -

MASON CJ: Well, there is no need to take us through that, is

there, Mr Hampson? We have read the judgment.

MR HAMPSON:  I do not really think so. I do not think there

is anything in his - really he just reviews the

facts and says he accepts what Mr Justice Matthews

says.

Now the other point then :wtri.ch I gave T}Rtice of was

really the question whether or noc, so far as -

when it came before the court, the Full Court,because

really it wasnot touched into before Judge Loewenthal
what was the position of this state of mind of the
appellant? In other words, was it possible for the

Full Court, as the majority did say,"Oh well, he

must have known what he was about, he was guilty",

or that statement that Mr Justice Matthews said,

"It could reasonably fall within the section"?

Now, we submit that is not nearly good enough, and if you go to the affidavit, in the appeal book,

of the applicant himself, at page 30 -the applicant's

BlTS/2/FK	33	26/6/89
MacGroarty(2)

affidavit . starts before that - and I am referring

to this only to show what he said, not challenging
the transcript or anything of that kind.

First of all there is the affidavit by the other

person who was present at the time, he talks about

some people being heated and so forth, then the next

affidavit from the applicant - it starts at page 19

of the appeal book and he deals with the general

matters and so forth. He says what the case was

about and so forth: why he wanted to get the material

before the court, and so forth, and then he says

at paragraph 17, and I submit that from hereon it is

quite important, and the Full Court did not seem to

pay any attention to what he said:

My statement, "No, I won't" was intended to

indicate my refusal to go on to some otter

point before fully stating my submission. As

His Honour again cut into my submission saying

the words, "Will you keep quiet while I am

speaking" I meant to indicate I wanted to finish

my submission in spite of his interruptions,
whereupon I would have moved on to some other

point. The submission that I intended to make

was that His Honour had no right to say in front

of the jury that I was not questioning the reason that the defence contention was that the issue of who did the banking of all the

monies including the rental monies collected

my my client, was a vital issue in the trial.

A further submission that I intended to make

was that I should be allowed to put the depositions

directly to the witness as the jury could regard

it as most material to the credit of Scott if he

expressly conceded that he had given evidence

at the committal hearing different from what he

had given in evidence in chief.

And I say, at this particular stage, it is not unknown

for the Court of Criminal Appeal, if counsel in a

what they are trying to do - for the Court of Criminal	criminal case are not quite firm with relation to
Appeal to say, "Oh well you fell in with His Honour's
su:;gc::stion. His -Honour su~ested t.riat there was no neeci for the
depositions to be shOvJn ai;ain to the witness", or something of
that kind, "and you concurred with it", and so on. appellant to feel that it was necessary that he had
his point made, although he then moves on to another
point, as he says, in conformity with His Honour's
ruling, he did that, but he believed that it was his
duty to get those two submissions anyway recorded.

I also say that His Honour's tone of voice

when he said, "I have made my ruling; go on to

some other point that relates to one of the issues

BlTS/3/FK	34	26/6/89
MacGroarty(2)

in this case" and "Will you keep quiet

while I am speaking" was in fact shouting

throughout both comments.

After having been cited for contempt, I said

that I had nothing to say because I believed
that His Honour full well knew that I believed

I was entitled to complete my submission in the

presence of the jury. I believed my questions

were relevant and important and I believed that

His Honour's attitude was stopping me from

carrying out my duty to my client. I believed

he knew that I had no intention of insulting

him or of interfering in any way with the

administration of justice or of bringing the

authority of the Court into disrepute. I

therefore believed I was not guilty of contempt
or even of any breach of good manners. I did
not therefore believe that I should apologise
for my conduct as I believed I had acted quite

properly and that His Honour's apparent loss of

temper. had led to the unfortunate incident.

I therefore felt that there was no point in illy saying anything to him on the contempt point.

Now, I am not interested in arguing the rights

and wrongs of who was more angry or anything of that

particular kind, or who started it, but this is his

evidence of his state of mind and what he believed,

and he denies completely that - well first of all,

he believes he had a lawful reason for what he was

doing, that he was entitled and, indeed, obliged by

his profession to complete these submissions and he

believed that his questions were relevant and

important and that His Honour's attitude in fact was

preventing him from carrying out his duty.

Now that was the first thing so far as lawful excuse was concerned, and then he denies that he

had any intention of insulting him or of interfering

in any way with the administration of justice or of bringing the authority of the court into disrepute.

Now, in those circumstances when the matter came

before the Full Court, and particularly on this

very sketchy transcript that the Full Court had, that

His Honour had been one of the protagonists - it is

one of these difficulties about these contempt things

and why this Court and other superior courts have

said that this summary power should be exercised

very sparingly. His Honour being one of the

protagonists in the matter, as it were, came quickly

to that conclusion and said, "You are guilty of

contempt, what have you got to say?", looking for

some apology, but probably never really considered

at any depth, "Well now, just what does the section require?

Has the man been wilful or - I find him persistent and

stubborn and difficult and all that kind of thing, but

BlT5/4/FK	35	26/6/89
MacGroarty(2)

is he really believing honestly that he is doing

his duty or, in fact, is he being deliberately and

wilfully rude to me, to insult me in my court?"

Now, that question was never focus£d on, in

our submission, by His Honour, as the transcript

shows, and it was never focused on by the Full Court.

The Full Court in the majority - there was no reason

for Mr Justice Carter to consider that, of course,

because he found on a different ground,our first
point on which we are relying, but so far as the

second point was concerned, the evidence,_

in our submission, was really all one way, that in
fact these matters had not been proved by the
prosecution, the onus lay on the prosecution to
prove the absence of any of these exculpatory

matters.

The contrary was the case, the appellant

had in fact established evidence which had to be

disbelieved before you would say that the exculpatory

matters had not been proved. Now that was the

situation before the Full Court, but the two members

of the Full Court who should have dealt with that,

because that was the other point that was argued,

did not deal with it at all, they just seemed to

assume, "Well he must have known not only what the

charge was but also what was said could fairly have

fallen within that, and he was rude anyway, and that

is good enough." Now, we submit it is not good enough:

It is an important matter, it is on a very sketchy

transcript, but when you consider the whole of the

material, the affidavits that have been put in, we

before the Full Court that, in .fact,- he had committed say, 11.ll:just was not: established before His Honour, or	submit that on this second point, the Court should
contempt." irrespective of the first point about
charging.I do not know whether there is anything I can
usefully add.

MASON CJ: Thank you, Mr Hampson. Yes,Mr Gallagher.

MR GALLAGHER:  If the Court pleases,it is perhaps worthwhile

recalling those words of Henry Wadsworth Longfellow

in this case, that "the greatest firmness is the

greatest mercy" because that is what His Honour was

attempting to do with respect, to Mr MacGroarty, to be

firm with him, but the reaction was unrepentant.

We say that what was made known to Mr MacGroarty was

the gist of the accusation and the circumstances of

the various cases when one goes to them fall

basically into two categories: those like

POLLARD where nothing was saia at all, and what

was done was both to not make a charge,and or not

give an opportunity for him to answer the charge.

But in cases where, in the circumstances, a charge

was made or the gist of the charge was made and the

BlTS/5/FK	36	26/6/89
MacGroarty(2)

opportunity was given, no complaint can be made

with that situation and that was the case here.

No different, Your Honours, to the Full Court's

procedure which had preceded this case of

DOW V ATTORNEY-GENERAL, (1980) Qd R 58, where

His Honour, under a similar section - under the express section indeed, a district court judge

said:

The charge I level against you is contempt

of Court. You are rude in open court here.

Your manner is rude to me.

And then the accused:

It is not rude. I am just stating facts.

HIS HONOUR: Don't you argue with me. And so it went on, and His Honour found that person

guilty of contempt. No question arose in that case

that the formulation of the charge to the person,

"I level against you is contempt of Court. You are

rude in court", was~insufficient to fall within the definitions construed of section 105 either

(1) or (3). What the Full Court did in that case,

as what this Court did in LEWIS V OGDEN,is it
construed and treated certain conduct as falling

within one or other of the charges, and then went

on to say that that was a sufficient charge. If I

could take the Court to LEWIS V OGDEN, a decision

in the Commonwealth Law Reports, a decision on a

very similar statute, what the trial judge did was

identified at 153 CLR 683 in the preliminary facts

and it says about two-thirds or three-quarters of

the way down the page, after the incident took place:

The judge did not distinctly formulate

a specific charge of contempt, but identified

five pages of transcript of Lewis' closing address,

which included the passage set out above,

as containing the objectionable material.

After hearing argument, he found Lewis guilty

of contempt, in that the passage set out

above was a wilful insult to the the court.

Now, this Court, in that case, although it expressed

the specific charge principle in the obiter dictum

at page 693, simply jumped that hurdle without any

reference because what the Court did in LEWIS V OGDEN,

with respect, was to determine whether or not the

conduct constituted contempt without defining, as it

would have been the case- there was no need to get to

the second question of whether contempt lay or not,

if the Court had been satisfied that by giving five pages

of transcript and dealing with the barrister then and
there on that basis of a similar section, was a
specific notice of the charge. In other words, the

Court was satisfied, one can see from reading it, whether the barrister had, on the basis at 687:

26/6/89

BIT5/6/FK	37
MacGroartyG2)

The case before us has proceeded on the

footing that the contempt consisted of wilfully
insulting the judge. That is the basis

argument has been advanced in this Court.

on which King J. considered the matter in the

MASON CJ: It is not a decision on that point, is it,because

the case proceeded on that assumption?

MR GALLAGHER:	The case proceeded on that, but there was no need to go to contempt if the Court had been satisfied as
to what it had said in the last part of its judgment, a specific offence has not been charged.

McHUGH J: But, Mr Gallagher, one difficulty I have with this

case- perhaps it is one of the real difficulties in

the case -is that there is no such offence as

"contempt of court" that we are dealing with. There

is an offence of wilfully insulting a judge, there

is an offence of wilfully interrupting somebody and

there is an offence of doing an act with is a

contempt of a district court. Does that not throw

up the problem that the judge here has used this
general description of contempt of court which is

not an offence itself?

(Continued on page 39)

BlTS/7/FK	38	26/6/89
MacGroarty(2)

MR GALLAGHER:  With respect, we would disagree with that,

Your Honour. We would say the law is simple.

There is, because this is an inferior court of record, an inherent power of contempt to punish 1n

the face of the court. That is the common law rule.

In addition there is a statutory provision,

section 105, and His Honour, Lord Quain,

said in REG V LEFROY, where there was a statutory

position in an inferior court and the common law

His Honour at 8 QB 139 said:

As soon as it is ascertained that no

case can be found in which imprisonment

or fine has been inflicted by an inferior

court of record for contempt not in the

face of the Court, it follows that the

rule must be made absolute. Such a power

has not been given to the county courts by

statute, but it is contended that it is

not taken away. I should doubt whether,

if such a power did exist -

and it does exist at common law -

it could be taken away except by express

words.

Now, there are views that, say, by necessary

intendment it can be taken away and we do not advance

the case that there are three powers to punish here,

although we say the common law has been taken up.

The common law is not necessary to go to because

(3) would fairly cover everything that (1) does

not cover -section 105(3). But that is not to say

we concede at all that the common law of an inferior

court of record has been displaced by section 105.

What we say His Honour did was charge him with

contempt which, in the common law sense, would be

covered by all of those sections in (3), or we can

go, if we can categorize one of the others.

Our difficulty is, and I appreciate it, that we

did not specify which particular one in exact

statutory terms.

McHUGH J:  Would an indictment be good if you simply charged

a man with unlawfully killing another person and not

specifying whether it was murder or manslaughter?

MR GALLAGHER:  The cases in respect of contempt, Your Honour,

indicate we do not have to go through the formal

indictment type of procedure. It is a case which,

in the New South Wales Court of Appeal, FRASER V REG - it is on our list of cases - has to be sure and swift.

It does not go to trial by jury. There is some

debate as to whether there is able to be made

unsworn statements and matters of iurv trials.	So
to characterize it on the basis that this was an

BlT6/l/liS	39	26/6/89
MacGroarty

indictable offence that had to be dealt with

in the usual way is, in our respectful submission,

not correct.

MASON CJ:  Mr Gallagher, I think if you proceed immediately

to the cases that you say support that proposition,

namely that it is not necessary to specify the

actual charge, that which constitutes the class or

kind of contempt to which the section is directed.

MR GALLAGHER:  Thank you, Your Honour. If I could go to

COWARD V STAPLETON, 90 CLR 579, the passage at

page 580 of the majority judgment, and my learned

friend read this. He said at the bottom of page 579:

Even apart from any such express

provision, however, it is a well-recognized

principle of law that no person ought to
be punished for contempt of court unless

the specific charge against him be distinctly

stated and an opportunity of answering is

given to him -

now, that is the passage which was taken up 1n

LEWIS V OGDEN -

The gist of the accusation must be made

clear to the person charged.

They are the words that we rely on.

MASON CJ:	The case that is quoted there, does that elaborate what is meant by that statement?
MR GALLAGHER:	In that statement in the facts and

circumstances - that was a perjury case where at the

end of the trial the judge simply said, "I'm finding

you guilty of contempt because what you have been

doing is telling lies". He did not specifically

state the ordinance of the Hong Kong statute under

which he was charging him.	He simply found him
guilty of contempt and, moreover, gave him no

opportunity to answer it. So it did not turn on

the niceties of whether he was told the section.

In effect the judicial committee of the ?rivy Council

said he was not told anything at all and, moreover,

he was not given an opportunity to say anything at

all. We say that the thread of cases, when we come

down to it, must look at particular facts and

circumstances instead of principles in the air,

and the tenor of the cases is	that if the gist
is made clear:

though it is not always necessary

Your Honour Justice McHugh would hear these words -

BlT6/2/HS	40	26/6/89
MacGroarty(2)

not always necessary to formulate the

charge in a series of specific allegations.

The charge having been made sufficiently

explicit, the person accused must then
be allowed a reasonable opportunity of being
heard in his own defence, that is to say a

reasonable opportunity of placing before

the court any explanation or amplification

of his evidence, and any submissions of

fact or law, which he may wish the court

to consider as bearing either upon the

charge itself or upon the question of

punishment.

The court really dismissed the charge at page 581:

It will be seen that the appellant was given

no opportunity to say anything by way of
evidence or address between the conclusion

of his questioning and the delivery of

judgment against him.

So that it was a case not that he was told anything,·

and indeed in that case Their Honours referred to

the practice of the High Court, but, of course,

it was not - - -

McHUGH J:  But that is a case of contempt and are not all

the cases you rely on cases of contempt, whereas

section 105(1) is not contempt, is it? It is a

statutory offence and, indeed, there are in

section lOS(l)(a) provisions there which could

not be a contempt in the face of the court,

for example, insulting a jury going or returning

from the court.

MR GALLAGHER:  If it was in the court it could be a contempt

of court, being an inferior court of record.

McHUGH J:  Yes.

MR GALLAGHER:  That section was treated in LEWIS V OGDEN

and in the Full Court as having all of the same

principles as the contempt power implies and, indeed,

that is the way in which the Law Reform Commission,

which is referred to in the list of cases and

authorities, treat the streams as having merged,

that the common law is really no different in fact than what is stated in the statute. So that it is

certainly a contempt statute. To construe it as

a statutory offence other than contempt, with

respect, shows no real purpose for the section

because insulting a judge is, in normal common law

terms, a contempt.	There would be no need
otherwise except to specify it in a statutory form. That is all the authorities have done.	Thev

have, with respect, not codified it in that the·

MR GALLAGHER, QC 26/F,/89

BlT6/3/HS	41
HacGroarty(2)

inherent power of the court still exists,

but they have, with respect, attempted to cover
the field without excluding the common law, if I

could put it that way.

In CHANG's case, Your Honours, (1909) AC

again that was, as Justice McHugh observed, a

contempt case but an allegation not dealing with

contempt but with perjury.

MASON CJ:  The charge was identified. What was perhaps

lacking was particulars, but it was said particulars

were not necessary in the case because the gist of

the offence was clear.

MR GALLAGHER:  Yes, well again the gist of the accusation

and then it goes down:

They agree with the Chief Justice that the alternative course left open to the judge

by the Ordinance of committing a witness

as for contempt of the Court contemplates

summary proceedings on the spot not involving

a statement or trial of specifically

formulated issues. But though, in their

Lordships' opinion, the language used by the

Chief Justice was quite sufficiently specific

to make the appellants aware of the pith

of the charge -

another way in which it has been put -

the pith of the charge against them, they
think that the Chief Justice should, before

sentencing them, have given them an

opportunity -

again, it is more an opportunity case than them

not knowing what they were charged with and this

phrase "the pith of the charge" again comes up in

the case of SAMARATUNGA, (1958) AC 424 at page 432.

That again was a statutory case, a perjury

situation where the person was found guilty of

perjury and about two-thirds of the way down page

432 by Lord Somervell:

It was laid down that before an order
was made under such a provision the gist

of the accusation must be made clear to the witness and he must be given an opportunity of giving reasons against summary measures

being taken. The witnesses in that case had not been given an opportunity and the appeal

was allowed. This decision assimilated

the procedure to that laid down by the Board

..... in POLLARD.

BlT6/4/HS	42	26/6/89
MacGroarty(2)

It was submitted for the appellant

that neither of the above conditions was

satisfied. The only basis for this

submission was that the nature of the

charge which had already been indicated

in general terms was particularized with

regard tome specific point after the

appellant had been clearly given an

opportunity to give reasons.

So in that case the gist of the accusation was

found sufficient. In GAMALATH's case, (1963) AC 474,

again it was a specific offence in relation to which

the person was not specifically charged, and the

judicial committee observed at page 483, after

referring to POLLARD's principle:

The same rule applies in relation to

summary punishment for giving false

gist of the accusation against the appellants

evidence: see CHANG HANG KIU V PIGGOTT.

ought in the circumstances of the case to

have been sufficiently clear to the accused

from the language employed by the Chief

Justice. The Chief Justice had said that the

whole of the evidence given by the appellant
convinced him of a conspiracy and all that

they had said material to one issue was a

tissue of deliberate falsehoods. A little

later in their judgment they expressed the

opinion that the language used by the

Chief Justice was quite sufficiently specific

to make the appellants aware of the pith of

the charge against them.

Now, it is the re-emphasis of those words which have

to be looked at in terms of the circumstances of the

case, rather than stating a salutary principle which

can allow conduct which is made known to the person

to be worthless, as it were, because a specific

section has not been stated in contempt proceedings:

necessary when proceeding under section 440(1)
for the accusation of giving false evidence
to be stated with the particularity

It is not, in their Lordship's opinion,

required in a count of an indictment.

If the court is of the opinion that the whole of a witness's evidence was false, it

may be sufficient, as in the case of CHANG,

just to say that. But when it is not

suggested that the whole of a witness's
evidence is false, it is essential that the
witness should be left in no doubt as to

which parts are alleged to be false.

BlT6/5/TIS	43	26/6/89
XacGroarty(2)

Mr MacGroarty, with respect, was left in no doubt

as to what parts of his conduct were found to be,

by the trial judge, offensive.

DEANE J:  But is that not the problem you have? If you look

at page 14 you cannot say that if a judge says to

counsel, "Will you stop speaking while I am speaking?"

and counsel says, "No, I won't because you've made

a ruling without hearing what I say about it, and

it is necessary that I interrupt you to point that

out",	you cannot say that is contempt of court,
can you?

MR GALLAGHER:  Your Honour, the way you put it to me I would

say immediately it is not contempt of court,

but - - -

DEANE J:  But then you see when Mr MacGroarty says, "I was

trying to put on record that Your Honour in making

a ruling passed the opinion", and so on, the judge

said, "That's got nothing to do with it. The only

question that I'm open to hear comment on is whether

you said, 'No, I won 't' , when I said, 'Won't you

stop speaking while I'm speaking'". That excluded

any submission at all as to whether or not that
conduct was, in the circumstances, relieved from
being contempt by reason of some explanation

relating to the way His Honour made the ruling.

(Continued on page 45)

BlT6/6/HS	44	26/6/89
MacGroarty(2)

MR GALLAGHER: _ Y0ur Hon.our, that would be so,

with respect,in the way you have puc it but the

passage in relation to His Honour's conduct at 14

really has to be read in the light of his

pre-ruling at 12.

DEANE J:	Mr Gallagher, I suspect you are right, but the
point I am putting to you is the way this
procedure or the procedure adopted really precluded anyone ever knowing whether what you
are saying is right or wrong, because we do not know precisely what it was or what are the elements of the criminal offence of which the appellant has been charged, if he ever was
charged, and convicted, if he ever was convicted.
We know he was sentenced.
MR GALLAGHER:	We know the conduct with respect to which he was charged -

DEANE J: Well now, let us just test that. Assume we are dealing with an appeal on the merits. What are the elements of the offence which the appellant

is open to challenge?

MR GALLAGHER:  That he wilfully - ther.e is a

various number of alternatives.

DEANE J:	But you, as it were, destroy the answer by giving
that answer.  I mean, what I am saying to you is
what are the elements of the offence of which Mr Hampson's client has been convicted?

MR GALLAGHER: Well, the offence of which he has been

convicted is contempt of court.

DEANE J:	But what are the elements of that offence?
MR GALLAGHER:	The elements at corrrrnon law are such conduct as to offend justice.In my loose way of putting
it, the -
DEANE J:	But in so far as we have any indication, His
Honour's statement, 11 Mr Bailiff, remove the
appellant'_' ;·indicates that His Honour was
acting under one or other of the specific matters mentioned in section 105.

MR GALLAGHER: Well, specific in the sense of either 105(1)

or 105(3).

DEANE J:	No, it is 105, that after a finding of offence
authorizes the immediate removal, not 105(3).

BIT7/l/CM	45	MR GALLAGHER,
MacGroarty(2)
t'P. GALLAGHER:	Sect.ion 105(3.)_is.the more general one.	But,

in :act, Your Honour, Er :MacGroarty was not

renoved ::r0'!':1 tre court. What happenec.;. was the jury

was s2~~ out, so that the course of - - -

DEANE J: Yes, I notice that.

MR GALLAGHER: - - - conduct did not

preclude us in cnac sense, so that was contemplated

by His Honour, but did never occur and that is

why it is important to this, that the jury

retired at 2.50 pni and then Mr MacGroarty,still

in court, was told by His Honour the gist of

the accusation.

HIS HONOUR:  Mr MacGroarty, I told you to

stop speaking while I was speaking and you

have refused. Is there any reason why I

should not deal with you for contempt?

McHUGH J:  But has he been told the gist of the accusation?

You see, supposing when the judge said"I will give

you an opportunity"the learned counsel had said,

"Well your direction was not lawful~' The judge

might have said "I am not talking about an offence

under 105(l)(d). I am talking about an offence

under 105 ( l.Ha) or 105 ( 1) (b). "How would you know

what the gist of the offence was until you are

told what it was? He just told some facts.

MR GALLAGHER:  The gist of the accusation were the facts

giving rise to the contempt. What His Honour

did was simply ignore 105 and said, "What you

have done,in doing this, is contempt of court.

Is there any reason why I should not deal with you?"

Now that is the practice that DOW's case adhered

to.

DAWSON J:  Does the argument so something like this,

Mr Gallagher: men you take subsection (1)

and sub-section(3) together, you comprehend the

whole of the offenc2 of contempt of court in

the face of the court2 You may go a little bit

further,in fact, in 105, but it certainly

comprehends that. So if you were charged with contempt of court you would not have to do any

more than was done in this case. Why then, under

this section, do you have to do more? Is that

the sort - - -

MR GALLAGHER:	Yes, we say that 105(1) sets out specific allegations of conduct that constitute contempt
and (3) covers the rest of the field. We have

BIT7/2/CM	46	2 6/ 6 I 8 9
MacGroarty(2)

got the third situation that there has been no

express repeal of the connnon law situation but

we cannot see how it could ever become other than

in (3), so that 105, as the authorities indicate,

is simply a statutory restatement of the connnon

law, and if I say to you, "I am cr.arging you with

contempt': there would be no doubt that

Mr MacGroarty, going through the Act, could find

no other section which would come close to what

he was doing as constituting and he would find

that it is clear that that is contempt of court.

It would be in no co~bt at all that - - -

McHUGH J: Well, how do you draw up the conviction? What

would the conviction say in this case? You

could not say that he was found guilty of

contempt of court, because that is not what the

section says.

MR GALLAGHER:  Contempt of court in that he breached

section 105 by particular actsanri circumstances.

There is a certain looseness for which it is

difficult to be responsible for but which we

nevertheless face up to, but when one looks at

what he was told - it was done three times can

I re-emphasize. At 14 he was told what he did,

and said, ·.''Why should I .~ot deal with your contempt?"

Then he was told again:

iJ

HIS HONOUR:  I said, "Will you stop speaking

while I am speaking"? You said you would not.

That goes beyond bad manners. It is a deliberate contempt as far as I can see.

He has not ruled finally. MacGroarty does not

come back at all at that stage to try and

exculpate, explain or ask for any further

information. And then His Honour says something:

HIS HONOUR:

I said to you, "Will you stop speaking "Will you get down to the issue?"

while I am speaking?" you said you will not.

What have you to say about that?

MR MACGROARTY: Nothing, Your Honour.

HIS HONOUR:  I am giving you the opportunity

before I deal with you for contempt.

MR MACGROARTY:	I have nothing to say about
that.

So it is clear that there was a measured tread by the judge, as distinct from,say,POLLARD's

case, where the Queen's Co,.msel was simplv

brought up before the Court and said, "You are

guilty of contempt,"and nothing more to say,

BIT7/3/CM	47	26/6/89
MacGroarty(2)

and "you are fined". But the judge said what. he

did and that he intended to charge him with

contempt.	He then said, "That seems to me to be
contempt,	what do you say about that and now

do you have anything further to say?"And on

each separate occasion MacGroarty did not stay

silent; he simply stayed unrepentant and in

that context, plus the demeanourof the witnesses,

Your Honours would take into account the aspect

of shouting. It is all very well now to, in

quiet, mellow tones, fasten on the way in which

these words read, but BELLANTO's case and the

other authorities indicate that it is not just

what the words are; it is the manner and tone

and demeanour and these are all things which

this Court, nor the Full Court had the advantage

of seeing, but which theywere prepared to

assume.

There is some suggestion of it; some dispute

about it, I might say, about who shouted at what,

when.

DEANE J:	But does not that all underline the importance of a specific charge so people know at the
time what they are talking about?
MR GALLAGHER:	Noi,,. Your Honour, we would say to that, it

underlies the importance that he knows what he

is charged with, which is not quite an answer to

your question of_ a specific charge, but as long as

he knows the facts and circumstances that cause

offence, in contempt proceedings, we say is the

difference. The words "gist of the accusation",

"pith of the charge" are less in the circumstances
than"specific nature of the offence"and "specific

nature of the offence" has been alleged in cases

where no charge at all, whatsoever, was made.

It is perhaps, Your Honours, best summed up - I have referred to a textbook on this matter -
Borrie and Lo·we' s Law of Contempt.	It is an

English textbook in 1983. But this distinction

is referred to somewhat better than can be

argued here orally by these words - at the end of

page 358, Your Honours, he says:

It seems that the accused must at least be made aware that he is being charged with

contempt. However, the degree of precision

with which the charge must be stated will

depend upon the circumstances. There is

authority for the view that provided the

gist of the allegation is made clear to the
accused it is not always necessary to

formulate the charge in a series of

specific allegations. However, as the Canadian

BIT7/4/CM	48	2 6/ 6 I 39
MacGroarty(2)

Supreme Court has observed the 'fundamental

rule is beyond question: a vague charge is

a fatal defect.' The general rule may

therefore be better stated by saying that the charge must always be specific enough

to leave the accused in no doubt as to

what conduct is being complained of. Hence,

for example, if it is alleged that the whole

of a witness's testimony is false ..... In

MAHARAJ's case, after a barrister accused

a judge of 'unjudicial conduct', the judge

simply told the barrister that he was being

'formally charged with contempt of court.'

In his written reasons for his decision,

however, Maharaj J made it clear that he

regarded the barrister's conduct as a

'vicious attack on the integrity of the

court,' and it was held by the Privy

Council that the failure to make this

specific in the charge vitiated the

committal for contempt.

The failure to make the charge specific

enough jeopardises the second requirement

that the accused be given an opportunity to

answer the charge.

Now, with respect, Your Honours, we would rely

on those words, and we would rely on the statement

in BELLANTO's case, which I do not need to go to,
and in TIPPETT V MURPHY, that barristers of

experience have a special privilege in court,

there giving rise to a special duty, and that it

is not sufficient, as my learned friend .,. to say that barristers are to get as fair a go as any·

normal accused, because barristers,by their very

position,know what the forensic task is about and

therefore, with respect to my learned friend,

should be more careful than the normal litigant,

and therefore have, with regard to that onus,

more responsibility to take care of their conduct

than would be the normal litigant, and not that

I am urging that they have less fairness attached

to them, but because they are very clearly

aware of their responsibilities, conduct such as

this type should not put them in the normal

category of persons who, as Mr Justice Carter

said "blow bugles in court" and such matters as

that.

One matter which I do wish to take the Court to on His Honour Mr Justice Carter's judgment

with respect to which he really found the contempt

not proved is His Honour found that all that the

BIT7/5/CM

MacGroarty(2) 49

trial judge had done, at page 73 of the record -
the learned trial judge did not do other than

to say he proposed to deal with the applicant

for contempt of court. Now, with respect,

Your Honours, if one goes to 14, that is putting

it far too narrowly. If he had said to

MacGroarty - - -

DAWSON J:  Can I stop you there, just for a moment,

Mr C'-.allaeher. Was he, on your case, charging him

under subsection (3) or subsection (l)?

MR GALLAGHER:  With regard to the charge, it was not made

clear. What one can assume: I can simply say

the arguments in the Full Court were on a

number of charges under (1) or (3) - - -

DAWSON J: You see, what I have in mind is this. It would

become a very technical section and a pitfall

because if a judge were to sa~'Well I am going

to charge him under sub:aec'.tion (3) "it would

then later be an off en: e to charge to say," Well

it did not fall within (3); it fell within
(a), (b), (c) or (d) of (1) and you laid the

charge under the wrong section." And yet if he

had not done so in the sense that sub~~ct~on (3)

was not the wrong subsection . , what he had done

by way of specification of the contempt would

have been sufficient, in all probability.	So
does it all turn on whether the particular

conduct falls within (a), (b), (c) or (d) or not?

MR GALLAGHER: If it did not fall within (a), (b) or (c)

then it must fall within (3) for the judge to be

able to find him guilty of contempt. If it did

not fall within either (1) or (3), and was

simply, on the facts, mere discourtesy,	there
can be no contempt.

DAWSON J: Well it does become very technical, does it not?

MR GALLAGHER: Well, it does, and we say the over-

technicality of it leads us to that Roman writer,

Publius Serius, who said "The remedy for wrongs

is to forget the injuries and that is the

result.

DAWSON J:  The result is that if in fact the judge was

proceeding under sub1ection (3), the argument

is he fails because he proceeded under the

wrong subsection, not for any other reason.

BIT?/6/CM	so	26/6/89
MacGroarty(2)

MR GALLAGHER:  No, and it simply means that he has to be

recharged and that comes down, I suppose, if

this was a normal criminal case, any miscarriage

of justice in the circumstances, because all

of the judges, with respect - all of the judges

found, without doubt, that the conduct was not

only a grave discourtesy, but sufficient to

found contempt and that is even in the

judgment of His Honour Mr Justice Carter, if

I could take you to that.

(Continued on page 52 )

BIT7/7/CM	51	2616/89
MacGroarty(2)

DEANE J:	But can you recharge somebody in view of 105(5)
under this section?
MR GALLAGHER:	Once the court has risen?
DEANE J: Yes.
MR GALLAGHER:	Your Honour, there is no -

DEANE J: It is just a question, I am not indicating any view.

MR GALLAGHER:  Yes, there does not seem to be any time limit

on such a matter. 105 is a mechanism rather than

a time-limit section. There is no - - -

DEANE J: Well, I was wondering - you do not seem to be

putting any submission that 105 contains its own

procedural code, and that 105(1) indicates an
absence of any need to go through formal

procedures up to the stage of punishment.

MR GALLAGHER:	No, that was the decision of His Honour Mr Justice Campbell, the Chief Justice in DOW 1 s
case; the argument was put up, well it is really
under (3) and he should be formally charged and
so forth - - -
DEANE J:	I think you have missed my point and that is if
it is 105(1) it says if he does these things he
is guilty of an offence and he may be excluded and
after he has been excluded will come the subsequent
things, including subsection (5).  Now, it is
scarcely likely that you cannot exclude him until you have gone through the whole procedure, whether
he has wilfully insulted the judge or unlawfully
obstructed or assaulted a person.

MR GALLAGHER:  Yes. Do I understand the question, Your Honour,

to be saying that now the trial is over there cannot

be any further course of action taken?

DEANE J:	No, I was just inquiring of you whether you suggest
.that the form of the section indicates a special procedure here, whereby, in the ordinary case,
the judge, having seen what has happened, can come
to an irmnediate decision and then give an
opportunity to be heard as to whether or not
somebody should be punished.

MR GALLAGHER: That would be the case that the section seems

to contemplate, which accords with FRASER V Reg in New

South Wales, that it is a quick and ready section, not rough and ready, but quick and ready section that should

be dealt with inmediately.

DEANE J:	Which would add some support to what Mr Justice Dawson
has been asking you about.

EIT8/l/CM	52	26/6/89
1'1acGroarty(2)

MR GALLAGHER:  Your Honours, on the question of the conduct,

Mr Justice Carter- all of the other jud2:es found it -	but Mr Justice Carter, at page 72 of the record, about the fifth
line:

An examination of the trial transcript

suggests a sound basis for the learned

trial judge's concern. On the other hand

the transcript also reveals that counsel

perceived it as necessary for him to

cross-examine

and then he goes on:

The conduct alleged to constitute the

contempt in this case might have fallen

within sub-paras. (a), (b) or (d).

He does not make a finding to that effect, but

there seems to be no doubt, in this case, from

all of the judges in the Full Court, that the

conduct was less than to be expected of the

usual standards of courage with firmness. So

we would say, that in the circumstances, the

gist of the accusation, the pith of the charge,
the facts that would have made the person

familiar with what he is being charged with,

were all quite clear, were made known three

times, and on each occasion the barrister

simply said.,'1tfo, I do not want to say anything;

no,I do not want to explain;' in effect,"No,

I do not want to apologize." A course of

conduct, may I remind this Court, which was

persisted in even tb the Full Court, because

His Honour Mr Justice Dowsett·made it quite clear

that if exculpatory statements had been made

at this stage the Full Court had been reached,

then the matter would have ended there, and
that certainly was the Crown's position then,

as indeed as it is now, but we say that the wilfulness,

or the deliberateness of the conduct, is to be	inferred from the conduct .in refusing to even
apologize, because even in BELLANTO's case, the
barrister did apologize, but the judge would not accept it and found him guilty of contempt.

But there has been no suggestion, in this

case, of remorse, regret or repentance.

~.ASON J: Yes, thank you Mr Gallager. Yes, Mr Hampson.

MR HAMPSON: In answer, first of all, to Mr Justice McHugh's

question, it seems to go something like this,

Your Honour. Section 8 of the Queensland CRH1E-rAL

BIT8/2/CM	53	26/6/89
MacGroarty(2)

CODE ACT accepts, from the purview of the code contempt committed in court. So that gets

it away from criminal areas where the Queen

is the opposite party, and so forth. Then

there was a decision in REG V BALLINGER,

(1961) 55 Queensland Justice of the Peace

Reports 114 - I think that is the only reference -

which held, that was where somebody tried to

appeal from his conviction for contempt - he

was not the defendant - during a criminal trial

and it was held no, that that fell outside the

criminal code and so forth and it could only be

brought therefore - the Court of Criminal Appeal

had no jurisdiction - he could only bring his

appeal to the Full Court and thereafter appeals

of this kind have been brought, pursuant to section 92 of the DISTRICT COURTSACT to the Queensland Full Court, as was the case that was

mentioned, DOW's case -that was an example of it -

it is on the list - and it is for that reason

then that the Queen is not mentioned, but the

minister who then would be in charge of enforcing

orders made under that particular Act becomes the

contrary party in the litigation.

I suppose thattheother possibility would be a

person interested in upholding the conviction could

have been a judge but, obviously that would not have

seemed appropriate. It would have been more

appropriate that it would have been the minister.

So, that the answer to that one as we would see.

The cases that my learned friend relied on, if I

could just say this, on analysis, really, that do

not assist the situation at all. His reference to
the Privy Council case of CHANG HANG KIU at page 315,

it is perfectly clear that Their Lordship said:

With regard to the first ground of objection

taken by the appellants, namely, that they were

not informed by the Chief Justice what

statements made by them respectively constituted

the alleged perjury, their Lordships are of
opinion that it is not established in point of

fact. The statement made by the Chief Justice was

to the effect that the whole of the evidence

given by the appellants convinced him of a

conspiracy on their part to make it appear that

Wong Ka Chuen was at the date of the presentation

of the petition a partner in the Lai Hing firm, and

that all they had said material to that issue was
a tissue of deliberate falsehoods.

In other words, what they have said is you

cannot do any better than saying it all is, you do

not have to pick out bits and pieces that may or may
not be. Another case where the order - it is on our

appeal book - and the notification was considered

BlT8/3/DR	54	26/6/89
MacGroarty(2)

important·is that case of MAHARAJ V ATTORNEY-GENERAL

FOR TRINIDAD AND TOBAGO, it is the last volume, and

on the second-last page the reference is given where

the judge had asked counsel - it appears at

paragraph h of the third-last page:

'Are you suggesting that this Court is

dishonestly and corruptly doing matters behind

your back because it is biased against you?'

And there is some criticism by Lord Salmon as to that

question being asked, but then he goes on, he gave

an answer, he says:

'I do not think this is the right place to

answer that question.	I do not thi..'lk the question
arises.	But I say you are guilty ot unjudicial

conduct having regard to what I said yesterday.'

This again was a very tactless answer. He may

have thought that the judge was trying to put

words into his mouth which he had never uttered

or suggested. Even so, it would have been far

wiser to reply 'Of course not, my Lord.'

And then they set out in the transcript exactly what

happened. Then the formal order appeared. A formal

order was taken out in which it was alleged that

counsel had been found and:

said that the Court was guilty of "unjudicial

conduct'' -

The court goes on to say it is a very wide meaning,

what you mean by t.'unjudicial conduct" and on the

last page, it is the last paragraph:

In charging the appellant with contempt,

Maharaj J did not make plain to him the

particulars or the specific nature of the

contempt with which he was being charged.

And so forth. Now, that is something that, in our

submission, runs through all the cases. It is not a

question you can grab at the gist of it somehow or

other - "You have got an idea that what we are complaining

about is something that happened this afternoon in the

way you addressed me." .v.Je submit that is not good

enough at all. We submit, even though it may be

technical,if, in fact, you have a statute which contains

within it the full coverage of the field of what

"contempt" means in the district court the statute has to be complied with. It is not good enough to say, "Well, that is very technical." It just merely

means that people have got to be properly charged.

They are done in every other walk of life and there is

no difficulty, in our submission, why it should not be

done here.

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MacGroarty(2)

I do not know that there is anything useful

we can add. Our learned friends really say - they go

back to Mr Justice Matthews' judgment in saying, "Well,
look really, he was an experienced counsel, he must

have known what it was about and it seems to have more

or less fitted. It reasonably could come within one
of those things." We submit that is not good enough.

One of the things that was raised for the first time

in this submission, was this statement that he showed

no remorse.

There is a difficulty, of course, here that

our client adopted the view that what he did was

justified. That he might have been hard-headed but

he had a duty to perform and he did it. He was

specifically asked in the Full Court by

Mr Justice Dowsett, "What was his present attitude?"

and a statement was made. I do not know whether it

is in the appeal book. It is not in the appeal book.

A statement was made by me to the Full Court after

consideration. Mr Justice Dowsett said it contained

more - I just forget the expression - self-justification,

or something, but really what it did was say, in terms
of his affidavit, that he greatly regretted the

incident that had occurred,	he was sorry it had
occurred,	that he had never had anything like that

in his experience at the Bar before but, unfortunately,

he believed that he was doing his duty. And, as he

said in his affidavit, there was no way really he

intended, in any way, to connnit any contempt.

So there is not a question of any lack of any

remorse, it is a question that he believes he has

acted, right through, in accordance with the duties

that his profession imposes upon him.	I do not think
there is anything else I can add.

MASON CJ:  Thank you, Mr Hampson. The Court will consider its

decision in this matter.

AT 4.22 PM THE MATTER WAS ADJOURNED SINE DIE

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MacGroarty(2)