Prothonotary of the Supreme Court of New South Wales v Dangerfield
[2015] NSWSC 1895
•14 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Dangerfield [2015] NSWSC 1895 Hearing dates: 19 August 2015 Decision date: 14 December 2015 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed.
2. The matter is remitted to the Local Court for hearing and determination in accordance with this judgment.
3. No order as to costs.Catchwords: CONTEMPT – procedure – Local Court referral to Supreme Court – opportunity to be heard on whether referral should occur – procedural fairness Legislation Cited: Crimes Act 1900 (NSW), s 341
District Court Act 1973 (NSW), ss 199, 203
Evidence Act 1995 (NSW), s 38
Local Court Act 2007 (NSW), s 24
Supreme Court Rules 1970 (NSW), Pt 55 r 11Cases Cited: Commissioner of Police v Reid (1989) 16 NSWLR 453
Killen v Lane [1983] 1 NSWLR 171
Medical Board of Queensland v Byrne [1958] HCA 40; 100 CLR 582
Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459Category: Principal judgment Parties: Prothonotary of the Supreme Court of New South Wales (plaintiff)
Elizabeth Dangerfield (defendant)Representation: Counsel:
Solicitors:
N J Adams SC/ B K Baker (plaintiff)
J Manuell SC (defendant)
Crown Solicitor’s Office (plaintiff)
Aboriginal Legal Service (NSW/ACT) Limited (defendant)
File Number(s): 2014/361845
Judgment
Introduction
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On 9 December 2014 the Prothonotary commenced proceedings in this Court for contempt against Elizabeth Dangerfield. The contempt allegedly arose out of her refusal to answer questions as a witness in summary prosecution proceedings in the Local Court. Ms Dangerfield, by notice of motion, seeks a declaration that the learned magistrate failed to afford her procedural fairness when determining whether to refer the contempt to this Court for determination, with a consequential setting aside of the summons upon the basis that the decision of the magistrate to refer her to this Court pursuant to s 24(4) of the Local Court Act 2007 (NSW) was void.
The proceedings in the Local Court
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Ms Dangerfield had been called by the prosecution in the Local Court at Lismore to give evidence in relation to a charge of common assault against Mr Dallas Dangerfield, her brother. She had made a statement to police implicating Mr Dangerfield in the offence charged but, in the course of proceedings sought, in effect, to exculpate him by evidence that was plainly contradictory to what she had said in her statement.
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Ms Dangerfield was then declared an unfavourable witness pursuant to s 38 of the Evidence Act1995 (NSW) and was cross-examined by the prosecutor. Whilst answering a number of questions, she then refused to give further evidence –
“Q. Your brother is the defendant now before the court Denzel?
A. Dallas.
Q. Dallas I'm sorry, Dallas?
A. Yep.
Q. Something happened that morning where Dallas attended your house and you had phoned the police in regards to making a complaint, is that correct?
A. Yes.
Q. Can you tell the court what happened, you were cleaning the house and Dallas arrived?
A. I come home from getting more boxes with my friends, I'd been drinking alcohol at the time. When I got to the house Dallas, who was looking after my kids, was at the house. He said he was taking the kids to his place and I said I wanted them to stay with me while I cleaned the house up. He said it wasn't the best situation because I was drinking alcohol and I was a bit drunk at the time. So he said he was taking the kids with him. I didn't want that so we had an argument and my dad pushed Dallas out the door. When dad pushed him I'm hit into the wall and hit my nose so when the police come I told them that Dallas had hit me and wouldn't give back my kids.
Q. You recall when the police arrived you told the police that Dallas had come into your house and punched you in the nose, do you recall telling the police that?
A. Yes.
Q. Now you're saying that you were pushed into the door?
A. Yep.
Q. And that's how you received an injury to your nose?
A. Yes.
Q. Can you explain why you told the police a lie?
A. Because I was drunk and I just wanted my kids back.
Q. How drunk were you?
A. Very intoxicated.
Q. How was your speech, was it slurred or were you --
A. Yes.
Q. -- having trouble standing?
A. Yes.
Q. So how would you consider yourself, extremely drunk?
A. Yes.
PROSECUTOR: Your Honour I seek to declare this witness unfavourable.
HIS HONOUR: Leave granted.
Q. Madam if I say to you that - pardon me - just bear with me for a moment - if I suggest to you that you gave a statement to the police didn't you?
A. Yep.
Q. The police officer recorded what you said in his notebook, is that right?
A. Yep.
Q. You told the police what I just conveyed to you that Dallas hit you in the 30 nose with his fist?
A. Yep.
Q. And that he came into the room where you were virtually straight after he came into the house?
A. Yep.
Q. You had told him to get out of the house, is that correct?
A. Yep.
Q. You said that your father - is that Peter Savage?
A. Yep.
Q. Took Dallas away and your father was there when you say Dallas hit you in the nose?
A. Yep.
PROSECUTOR: Your Honour I seek to play MFI B the video recording of the interview conducted with Senior Constable Wilson and this witness.
MFI B SHOWN TO COURT
PROSECUTOR: Your Honour there seems to be a problem with the vision, it seems to be frozen, but the audio is --
HIS HONOUR: The audio is what's relied on is it not.
PROSECUTOR: It's the best we can do.
MFI B SHOWN TO COURT
PROSECUTOR: I'd seek to tender that audio.
CRICK: I'm happy for it to be marked for identification your Honour but I mean she's here to give evidence.
HIS HONOUR: It's relevant now because she's been declared an unfavourable witness, the version of events that describes in her statement is completely at odds with the version of events she's given in oral testimony this morning and it also goes to the issue of intoxication.
EXHIBIT #5 FORMERLY MFI B TENDERED, ADMITTED WITHOUT OBJECTION
PROSECUTOR
Q. Madam you've heard the interview although the vision wasn't very good and it froze but you could hear your voice could you not?
A. Yeah.
Q. Would you agree with me that it didn't sound as if you were slurring your words, would you agree with me?
A. Pardon.
Q. Would you agree with me that it didn't sound as if you were slurring your words when you were answering the questions of the constable?
A. Yeah I agree.
Q. In fact you-
A. I don't always slur my words when I'm drunk.
Q. I'm sorry?
A. I don't always slur my words when I'm drunk.
Q. You agree with me that I asked you a question before whether you were slurring your words when you were speaking to the constable and you said you were?
A. Well I was drunk at the time so of course I'm thinking I was. Not everyone remembers what they do when they're drunk.”
The line of questions continued, Ms Dangerfield maintaining her evidence that, despite what the audio revealed, she was drunk. There was nothing about the questioning that was objectionable. The prosecutor then moved to the witness’ triple 0 calls –
“Q. Would you agree that you made a number of triple 0 calls on that day?
A. No.
Q. Remember?
A. No I don't remember.
Q. When you called triple 0 it was quite clear that you indicated where you were at 11 Little Keen Street, do you remember saying to the operator where you were?
A. No, I'm finished talking, thank you.
Q. Do you remember being - telling the triple 0 operator that you'd been punched in the nose?
A. (No verbal reply).
PROSECUTOR: It seems the witness is refusing to answer.
HIS HONOUR: Ask another question.
PROSECUTOR: I'm sorry your Honour.
HIS HONOUR: Ask another question.
WITNESS: Not answering any more questions.
HIS HONOUR
Q. You are directed to answer the questions?
A. Well too bad, that's it.
Q. Ma'am I'm giving you a direction to answer the questions, they're proper
questions?
A. Well I'm not.
Q. If you don't answer the questions you may be in contempt of this court?
A. I don't care, do it, I don't care.
Q. Stand down, leave the witness box, leave the witness box. I'll give you till quarter to 11 to consider your position, it's now 25 to 11. I'm warning you that if you don't answer questions in accordance with my directions I will have you charged with contempt of court?
A. Well I'm not so you may as well do it now.
Q. You can consider your position until a quarter to 11.
HIS HONOUR: Is there a duty solicitor here today Mr Crick or is that me?
CRICK: Mr Van Dugteren was around somewhere your Honour.
HIS HONOUR: Mr Van Dugteren a solicitor from the Legal Aid Commission may be available to speak to you and he may be able to give you some advice which may assist you. If you need more time after you've spoken to Mr Van Dugteren I'll consider any application for further time but you are not to speak to anybody else about the evidence you've given or these proceedings today other than Mr Van Dugteren. Do you understand that?
WITNESS: I'm not speaking any more.
HIS HONOUR: All right well I'll give you the opportunity to speak to him he may be able to assist you. Do you know where he is Mr Crick?
….
MATTER STOOD IN LIST
HIS HONOUR: Is there any update on the whereabouts of Mr Van Dugteren do you know Mr Prosecutor? … [Ordinarily] I would ask for his assistance in these circumstances and perhaps give him some indication of what's occurred. Perhaps the first inquiry ought to be whether or not he's available and then, secondly, whether or not he wishes me to formally request his assistance in speaking to Ms Dangerfield.
MATTER STOOD IN LIST”
Another solicitor, Mr Quigley was available to speak to Ms Dangerfied and came into court.
“HIS HONOUR: I was going to adjourn the matter to give you the opportunity, I'm grateful for your assistance, I understand that you were speaking to Ms Dangerfield and she has been warned by me that if her present – if she continues to refuse to answer questions I’ll have the matter referred to the Prothonotary for contempt proceedings.
QUIGLEY: I've explained the situation to her your Honour and she's going to try and do her best to … (not transcribable) now.
IN THE PRESENCE OF THE WITNESS
HIS HONOUR: All right come back up into the witness box. Thank you for your assistance Mr Quigley. We'll resume the hearing in the matter of Dangerfield.
PROSECUTOR
Q. Now Ms Dangerfield I was asking you questions about triple 0 calls that you made in regards to this incident and would you agree with me that you had no problems explaining to the operator who you were, do you agree?
A. Yeah.”
The prosecutor asked further questions about the triple 0 calls which appeared to indicate that Ms Dangerfield was not intoxicated. She said she was. It was then put to her, in effect, that she had changed her account to protect Dallas. She denied doing so and, in answer to further questions, said she was “not answering your questions any more”.
“Q. Answer the question, is that part [of your police statement] true?
A. (No verbal reply).
Q. Answer the question?
A. Didn't I just say I'm not answering it.
Q. You told the police that you were punched and you went on to say that ‘Dallas walked out of the kitchen and punched my friend Gavin Lawrence’. The question is why did you tell the police that if you just wanted--
A. Stop talking to me, I'm not answering your questions.
Q. If you just wanted your child back?
A. (No verbal reply).
Q. Madam you've been warned?
A. I don't care.
HIS HONOUR
Q. Ma'am why won't you answer the questions?
A. Because I don't want to, I've already told youse everything.
Q. Ma'am the prosecutor has got a job to do?
A. I've already spoken, I don't need to talk any more.
Q. Would you mind just listening to me and let me finish please. He's got a job to do, you can't answer questions with a question?
A. I'm sorry your Honour but I'm not talking any more.
Q. That's all right, no that's all right but if you answer the questions you'll probably find that you'll be able to leave the witness box a lot sooner?
A. I'm sorry.
Q. So if you listen to the question that's asked and rather than trying to answer it with a question and asking him questions, if you can just answer the question?
A. Sorry your Honour.
Q. If it gets --
A. But I'm not talking any more.
Q. Just stop, just stop, if it gets repetitive I'm sure Mr Crick will object or if it gets to the point where I think it's repetitive I won't allow the questions but at the moment the questions in my view are appropriate, relevant and proper?
A. I'm not talking any more, sorry.
Q. Why not?
A. So you do whatever you've got to do.
Q. Why not?
A. Because I don't want to.
Q. Why not?
A. Because I don't like being put under pressure all right.
Q. Well not many people do but you can assist me by answering the questions?
A. Well I'm not.
Q. And it'll probably be over very quickly?
A. I'm not talking any more, sorry.
Q. Do you want to talk to Mr Quigley again?
A. No I don't.
Q. Why won't you answer the questions?
A. I've already spoken to him.
HIS HONOUR: All right.
MR CRICK: Your Honour it's just because the questions are getting repeated again. She's got a short fuse that's all.
HIS HONOUR: Mr Crick, control your client.
Q. Do you want to take some time?
A. No.
Q. Cool down a bit?
A. No, just want to get it over and done with. I'm not answering any more questions sorry.
Q. All right you are in contempt of this court. Did Mr Quigley explain to you what --
A. Yes he explained everything.
Q. And you understand that you may be liable to punishment?
A. Yes, yes I understand.
HIS HONOUR: Put another question to the witness please Mr Prosecutor.
PROSECUTOR
Q. The question is you told the police that you were punched in the nose, you went on to say that a Mr Gavin Lawrence was also punched by Dallas. Why did you include that comment that Mr Lawrence was punched in the nose if you only wanted your children back?
A. (No verbal reply).
Q. Can you answer that question?
A. No.
HIS HONOUR: Ask another question.
WITNESS: Stop asking me questions. I told you I'm not talking no more.
PROSECUTOR
Q. You told the Court that the only reason you told the police that Dallas had hit you in the nose was for them to get your children back or your child back. It doesn't make sense that you've also said that a Mr Gavin Lawrence was also punched. What relevance is Gavin Lawrence being punched in regards to getting your child back. Can you answer that?
A. (No verbal reply).
HIS HONOUR
Q. Do you intend to answer any questions?
A. Nah.
HIS HONOUR: You've been warned. I will refer the matter now to the
Prothonotary of the Supreme Court.
HIS HONOUR: Mr Prosecutor, do you wish to say anything before I make any order?
PROSECUTOR: No your Honour, I think the question is quite proper, it's towards the reasoning why Ms Elizabeth Dangerfield has made allegedly a faults complaint to the police and yet she has some difficulty in answering the question. I can't take it any further than that.
HIS HONOUR: I direct a transcript of the proceedings, including and up to the point that Ms Dangerfield was asked to leave the witness box to be taken out today 1 July 2014 in proceedings between police and Dallas Dangerfield in the Local Court at Lismore. Elizabeth Dangerfield refused to answer questions put to her by the police prosecutor in evidence-in-chief, as indicated in the attached the transcript. Ms Dangerfield was given the opportunity to consider her position and take legal advice. She returned to the witness box. She again answered some of the questions put to her by the police prosecutor again after leave was granted to the prosecutor to put question to her as an unfavourable witness and again she refused directly to answer those questions. I form the view that the conduct amounted to a contempt of court pursuant to section 24(4) of the Local Court Act. l refer this matter to the Supreme Court for determination in accordance with pt 55 r 11(3) of the Supreme Court Rules. All right, next witness.”
The relevant legislation
Local Court Act 2007 (NSW)
Section 24 Contempt of court
(1) The Court has, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the same powers as the District Court has in those circumstances.
(2) …
(3) …
(4) Without prejudice to the powers of the Court under this section, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court, whether committed in the face or hearing of the Court or not, the Court may refer the matter to the Supreme Court for determination.
(5) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
District Court Act 1973 (NSW)
Section 199 Contempt
(1) In this section, "contemnor" means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.
(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.
(3) Where the contemnor is brought before the Court, the Court shall:
(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,
(b) require the contemnor to make his or her defence to the charge,
(c) after hearing the contemnor, determine the matter of the charge, and
(d) make an order for the punishment or discharge of the contemnor.
(4) The Court may, pending disposal of the charge:
(a) direct that the contemnor be kept in such custody as the Court may determine, or
(b) direct that the contemnor be released,
and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.
(5) …
(6) …
(7) …
(8) …
Section 203 Power to refer allegation etc of contempt to Supreme Court
(1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination.
(2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.
Supreme Court Rules 1970 (NSW)
Rule 55.11 Motion or proceedings by the registrar
(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.
(2) Subrule (1) does not affect such right as any person other than the registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt.
(3) Where:
(a) it appears to the District Court on its own view that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, and the District Court refers the matter to the Court for determination under section 203 (1) of the District Court Act 1973,
(c) it appears to a Local Court on its own view that a person is guilty of contempt of the Local Court, whether during a proceeding before the Local Court or otherwise, and the court refers the matter to the Court for determination under section 27B of the Local Courts Act 1982,
the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary to enable the registrar to do so.
(4) Subrule (3) does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.
(5) Subrule (3) does not apply in the event that a person other than the registrar commences proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.
(6) Subject to the rules and to any Act, where, pursuant to a power conferred by or under an Act, a court or other body or person refers or reports a matter to the Court with a view to the Court dealing with a possible contempt of the court, body or person, the registrar shall:
(a) take advice from the Crown Solicitor as to whether the registrar should take proceedings for contempt in respect of the matter,
(b) unless the Court otherwise orders, act in accordance with the advice, and
(c) inform the Attorney-General of the matter.
The decision to refer
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It is clear that the magistrate, on a number of occasions, warned Ms Dangerfield of the potential consequences for refusing to answer the questions properly asked of her and gave her an opportunity to obtain legal advice about the significance of her refusal to do so. She obtained that advice. However, he did not either implicitly or explicitly ask her whether she wished to make submissions on the question, firstly, whether her refusal to answer the questions amounted to contempt, secondly, whether his Honour should determine the question of contempt for himself or refer it to this Court, or thirdly, whether he should do neither in light of the whole of the circumstances and any matter which she might wish to bring to his attention. It is his omission to do so which, in substance, is the basis for the relief sought in this Court.
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The nature of the function to be exercised by a magistrate, when considering which of these three courses should be adopted, is undoubtedly ministerial (see Killen v Lane (1983) 1 NSWLR 171 per Moffitt P, at 179). Killen v Lane concerned a costs application by a party relating to procedures undertaken by a nisi prius judge of the Court who directed the registrar of the Equity Division to commence proceedings for criminal contempt in the Court of Appeal. The question of costs depended, to a significant degree, on the status of the party seeking to have the contempt proceedings undertaken. Moffitt P said (at 179) –
“Accepting that the power of the court to commence or direct the commencement of proceedings for contempt is ministerial, the question does not arise whether natural justice required that the proposed contemnors be heard on the question whether proceedings should be commenced against them. It is sufficient to say that the decision to commence proceedings appears to give rise to the same type of considerations as were found relevant in Dennis v The Law Society of New South Wales (Court of Appeal, 17th December, 1979, unreported, 2380 at 2394 and see 2387-2393), where it was held that the defendant in that legislative context did not have a right to be heard on the question whether disciplinary proceedings should be commenced against him. In the present case the rules themselves provide for the manner in which the contemnor is made a party to proceedings in which he will be entitled to be heard and further provide the means by which he is to be informed of what is alleged.”
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A different view of the correct procedure, though as it seems to me, not as to the character of the decision as ministerial or administrative, appears to have been taken in the Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, although the Court was not referred to Killen v Lane. In Maniam (No 1), it was alleged that a medical practitioner had declined contumaciously to attend the District Court to give evidence in answer to a subpoena. The powers of the District Court in connection with contempt are prescribed under ss 199 and 203 of the District Court Act, set out above. Where a contemnor is alleged to be guilty of contempt committed in the face of the court or in the hearing of the court by virtue of s 199, the court can set in train procedures designed to bring the contemnor before the court to determine whether or not a contempt has been committed, and if so, what punishment is appropriate. Section 203 of the District Court Act, however, permits the District Court, rather than itself undertaking the contempt proceedings, to refer the contemnor to the Supreme Court, which will then decide guilt or otherwise and determine punishment. So far as the Local Court is concerned, where there is a contempt in the face of the court, it may deal with it pursuant to the court's implied powers, or it can act in accordance with s 24 of the Local Court Act. Section 24(4) is, for all practical purposes, in identical terms to s 203(1) of the District Court Act. A complicating feature was that, having directed the contemnor to show cause, the judge in effect required him to do so by giving evidence, rather than, for example, calling evidence or making some oral submissions. This raised the question whether what the contemnor said on that occasion was admissible against him in the Supreme Court. A refusal to obey a subpoena is, of course, not a contempt in the face of the court, and accordingly, could not be dealt with under s 199 of the District Court Act, but had to be dealt with in accordance with s 203. In the course of giving reasons, Mahoney JA in Killen v Lane said (at 470) –
“It has been submitted that the procedure followed by his Honour was wrong. I do not think that it was. His Honour, in my opinion, followed a procedure appropriate in this Court for the exercise of the power given by s 203. It was proper that he first satisfy himself as to the appearance of contempt. There was no reason why he should not do this by detailing facts to the doctor and asking whether he disputed any of them.
It then was necessary for the judge to consider whether he would exercise the power to refer the matter to the Supreme Court. He was, in my opinion, in the circumstances of the present case under an obligation to give the doctor an opportunity to show why he should not do so. There is no precise procedure stipulated for this. It is in my opinion, at the least, not inappropriate that, if the doctor desired to show reasons why the power should not be exercised, he should be given the opportunity to do so by sworn evidence: it may be that, strictly, sworn evidence is the only or ordinary method of doing so. [Emphasis added.]
After hearing the doctor's evidence, the judge formally charged him with contempt. It is not clear whether this is necessary. It is arguable that a formal charge is not warranted or authorised. But that which s 203 authorises to be referred to the Supreme Court is ‘the matter’. The term ‘matter’ in this sense ordinarily indicates a proceeding between parties oralis: at least it may do so. And, I think, until there is a charge in respect of the apparent contempt, it may be that there is no ‘matter’ which may be referred.
I do not think that it is necessary to express a concluded view upon this question because, even if it was not necessary for the judge formally to charge the doctor, that is an irregularity which does not affect the validity or the propriety of the present proceeding before this Court. There is, in my opinion, nothing which turns upon it.”
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Dealing with the similar question, Hope AJA said (at p 480) –
“As it seems to me, Sinclair DCJ was considering whether he would exercise the power conferred by s 203 to remit the matter, being the question whether Dr Maniam was guilty of contempt for not complying with the subpoena, to the Supreme Court for determination. This required him to make two decisions. First, to decide whether it appeared to him on his own view that Dr Maniam was guilty of contempt of court, and secondly whether he should remit the matter to the Supreme Court. It was completely proper for Sinclair DCJ to have given Dr Maniam an opportunity to be heard before he made these decisions, whether or not a failure to have done so would have been a denial of natural justice, as it might have been. The objection is essentially to the words ‘I formally order that you show cause’ and the absence of advice that he need not say anything, and that anything he did say might be given in evidence.” [Emphasis added.]
Submissions
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So far as Maniam (No 1) is concerned, the Crown Advocate emphasised that it was not a case of contempt in the face of the court, so that it was plainly appropriate (perhaps necessary) for the judge to have sought an explanation for the apparent disregard of the subpoena, since there may well have been a satisfactory one. Furthermore, Mahoney JA expressly desisted from expressing a concluded view as, in effect, did Hope JA. However, I do not accept that Mahoney JA’s view about the need to give the doctor an opportunity to explain his conduct was qualified. The reservation he expressed concerned whether it was necessary to charge him. Hope JA did not need to determine the question of natural justice, since he accepted that the course adopted by the judge, which afforded natural justice, was proper. Nevertheless, it is clear his Honour preferred the view that omitting to give a contemnor an opportunity to be heard before the relevant decisions were made would have been a denial of natural justice. Kirby P did not discuss this question.
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The Crown Advocate, taking up the point made in Killen v Lane in the passage quoted above as to the similar character of a referral of contempt of disciplinary proceedings, referred to Medical Board of Queensland v Byrne [1958] HCA 40; 100 CLR 582, in particular to the judgment of McTiernan J (at 591) –
“… [The board decides] whether the offence is one for which the practitioner should be subjected to disciplinary punishment. Having formed these opinions in the affirmative the board merely makes a charge. Nothing that the board does in so doing subjects the practitioner to final judgment or punishment and so there is no prima facie obligation on the board to hear the practitioner before arriving at the affirmative opinion and there is nothing in the statute which expressly or impliedly requires such a hearing.”
Coming to the same conclusion, Fullagar and Taylor JJ based it on the characterisation of the decision as an administrative one.
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Reliance was also placed by the Crown Advocate on the point made by Meagher JA (Clarke JA agreeing) in Commissioner of Police v Reid (1989) 16 NSWLR 453 (at 461) – a case where there was a complaint that the defendant had been denied natural justice because the magistrate who gave leave to the Commissioner to prosecute him for perjury pursuant to s 341 of the Crimes Act 1900 (NSW) gave him no notice of the application and no opportunity to be heard – that “a decision to institute criminal proceedings does not require the observance of the principles of natural justice” and the grant of leave was a “merely ministerial step”.
Conclusion
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The relevant passage from Killen v Lane appears to be inconsistent with the Mahoney JA in Maniam (No1) and the contention of the Crown Advocate is supported to some degree by the other judgments to which I have referred. Nevertheless, the judgment of Mahoney JA deals specifically with a provision which reflects, in every relevant sense, that which governed the exercise by the magistrate of his powers in relation to contempt in this case. As a first instance judge, it seems to me, I should for this reason follow the rule stated by Mahoney JA in Maniam (No 1).
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There are other difficulties with the approach of the magistrate. Although of course, every allowance must be made for the fact that his Honour decided the matter in the course of a trial and it was necessary that he go on to hear and determine the charges, so it is not appropriate to parse his Honour's language with an eye to detail. Yet making all fair allowance, I am satisfied that his Honour took the view that, once having decided that Ms Dangerfield appeared to have committed a contempt (a conclusion which indeed was inescapable) his Honour regarded it as automatic that he should refer further proceedings to this Court. As I have already mentioned, there were other courses that were open to his Honour, namely, disposing of the matter himself, or neither doing that or referring Ms Dangerfield to this Court. It is not necessary to dilate upon the grounds that might have led him to take the alternative courses. One consideration might have been that Ms Dangerfield had children and lived in the district. For her to have to deal with a matter that would almost certainly be heard in Sydney might fairly be regarded as a hardship which her conduct did not warrant. This would have militated in favour of his Honour deciding to dispose of the matter which he was empowered to do, or a caution and a warning may have been sufficient. After all, she had made an apparently candid statement to the police, and although she attempted to give a different account in her evidence, this did not, in the result, stultify the prosecution of her brother. There may have been other relevant factors which Ms Dangerfield, had she been given time and opportunity and perhaps been assisted by legal representation, could have brought to the magistrate's attention. However, the summary manner in which his Honour disposed of these questions did not allow this to occur.
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I do not think for a moment that his Honour was conscious of being anything but fair to Ms Dangerfield. Indeed, it is evident that he had bent over backwards to attempt to obtain her acquiescence in answering questions which she was properly asked and had exhibited a deal of patience with her which went beyond what was strictly necessary. If I may say so, with respect, I think it likely that he did not afford Ms Dangerfield the opportunity to which I have referred because he thought that, once he had decided that she appeared to have committed a contempt, referral was inevitable.
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The Crown Advocate has rightly pointed out that, after the matter was referred to this Court, further submissions were made as to whether the proceedings should continue and those submissions were passed by the Prothonotary to the magistrate. I do not have the correspondence itself. As I understand it, these submissions went to the question whether the matter should proceed at all and not to the issue whether the magistrate should himself determine it and therefore did not deal with one of the alternatives open at first instance. At the same time, I think it should be inferred that this issue was not raised on Ms Dangerfield’s behalf. Ms Manuell SC for Ms Dangerfield submitted that this did not cure the problem. Had Ms Dangerfield been afforded procedural fairness, she could have obtained advice and, it may be, given evidence about her personal circumstances which might have provided a basis for a different decision being made by the magistrate. This material is not now available. The original decision was a nullity and its reconsideration was not a corrective.
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I should refer to one matter for clarity. It will be seen that Pt 55 r 11 requires, in the particular circumstances specified in subrule 3, that “the registrar must commence proceedings for punishment of the contempt” without further direction of the Court. Although that language is used, there can be no doubt that, on referral to the Supreme Court, under s 24(4) of the Local Court Act, it is for this Court to determine whether in fact a contempt has been committed, as well as whether, and if so, what punishment should be applied. The rule does not though, despite the language, mean that the only matter for determination by this Court is the matter for punishment, implicitly because the question of the guilt of the contempt has already been decided.
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It follows that the point raised by Ms Dangerfield is made out as to the failure to afford Ms Dangerfield procedural fairness in respect of the referral to this Court.
Further submission
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The Crown Advocate’s primary submission is that the above conclusion does not invalidate the jurisdiction of this Court to hear and determine the summons. In the alternative, if there is no jurisdiction, the appropriate order is to dismiss the summons and, if it were so minded, make declarations as to the basis for this conclusion. The Advocate observes (rightly) that dismissal of the summons would leave it open to the magistrate to consider whether Ms Dangerfield should be referred to the registrar under the Rules and, to do so, afford Ms Dangerfield an opportunity to be heard.
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Ms Manuell submits that the effect of the court’s findings is to invalidate the exercise of the magistrate’s decision to refer the matter to this Court and, hence, the jurisdiction of the Court to consider the matter. It follows that the summons should be dismissed.
Orders
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It seems to me that, as the referral to this Court is void for want of jurisdiction, since there was a failure to afford Ms Dangerfield procedural fairness, the summons should be dismissed. Even if I had a power not to do so (which I doubt), this is a criminal matter and, unless some significant and weighty public interest suggests otherwise, the exercise of the discretion should favour the defendant. It is not a matter, here, of Ms Dangerfield escaping justice, but rather, an insistence on following strictly the relevant legal procedures. Remitting the matter to the Local Court for reconsideration, of course, does not mean that the same magistrate must consider it.
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It seems to me that declarations are not necessary or called for.
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Accordingly, I make the following orders –
Summons dismissed.
The matter is remitted to the Local Court for hearing and determination in accordance with this judgment.
No order as to costs.
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Decision last updated: 14 December 2015
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