R v Bonacci
[2015] VSC 121
•1 April 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 03900
| THE QUEEN (ON THE APPLICATION OF THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA) | Applicant |
| v | |
| SANTO BONACCI | Respondent |
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JUDGE: | KAYE JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2015 | |
DATE OF JUDGMENT: | 1 April 2015 | |
CASE MAY BE CITED AS: | The Queen v Bonacci | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 121 | First Revision: 8 April 2015 |
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CONTEMPT OF COURT — Substituted service — Respondent did not appear at hearing — Case heard in respondent’s absence — Facebook post and internet radio by respondent exhorting others to contact County Court judge and officials concerning current criminal proceedings in the court — Emails by respondent to judge and court — Specific intention of respondent to intimidate court and dissuade court from conducting proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Langmead QC and Ms F Forsyth | Victorian Government Solicitor’s Office |
| For the Respondent | No appearance |
HIS HONOUR:
The Attorney General brings this application, by originating motion, seeking declarations that the respondent be adjudged guilty of contempt of court. The application relates to a number of publications posted by the respondent on the internet in November and December 2013, and emails sent by the respondent, in relation to criminal proceedings against two accused persons in the County Court of Victoria.
Background facts
On 17 September 2011, Kerry Marks (‘Marks’) and Miroslav Oleyar (‘Oleyar’) were charged with a number of offences relating to the trafficking and possession of a drug of dependence. In particular, Marks was charged with trafficking and possession of a drug of dependence and cultivation of a narcotic plant. Oleyar was charged with various counts of trafficking a drug of dependence, possession of a drug of dependence and knowingly dealing with the proceeds of crime. On 17 December 2012, Oleyar and Marks were both committed for trial in the County Court of Victoria.
In due course, the proceedings were listed for trial before his Honour Judge Chettle on 11 November 2013. On that date, both Marks and Oleyar failed to appear at court, and warrants were issued for their arrest. The warrants were executed, and both accused persons were remanded to appear before the judge on 12 November.
Hearings in relation to the proceedings took place before Judge Chettle on 12 November 2013, 18 November 2013, 20 November 2013, 27 November 2013 and 28 January 2014. In particular, on 20 November 2013, Marks pleaded guilty to the charges on the indictment. On 20 February 2014, a plea hearing in relation to those charges took place before Judge Chettle, and his Honour sentenced Marks on the following day, 21 February 2014.
On 29 April 2014, Oleyar pleaded guilty to the charges on the indictment. On the following day, 30 April 2014, a plea hearing in respect of those charges took place before Judge Chettle. On 2 May 2014, Oleyar was sentenced by his Honour.
The publications
The present application is brought in relation to the following publications made by the respondent in respect of the proceedings against Marks and Oleyar:
(1)A posting on Facebook on 11 November 2013.
(2)Statements by the respondent on an internet radio broadcast on 12 November 2013.
(3)Seven emails sent by the respondent to officers of the court, including emails to the incorrect address of the judge, on 18 November, 19 November, 21 December, 23 December, and 30 December 2013.
The Facebook post
On 11 November 2013, the respondent posted the following entry on a Facebook page identified as that of ‘Santo Bonacci’:
TUNE IN NOW!!
Dear friends I will be on Critical Mass Radio today Talking about the post I made earlier regarding two sovereigns Mickey and Kerry in Melbourne County court today for two week trial for possession of Marijuana. Below are the email addresses of everyone connected to this people trafficking case. The Corporations are foreclosed and The juridic Person no longer has Papal protection and yet these bastards are still destroying families and peoples lives. please help me make a fuss about this so that it stops once and for all!
The Facebook page then listed a number of email addresses, including the email address of the associate to Judge Chettle, the email addresses of five members of staff of the Chief Judge of the County Court, and an incorrect email address for Judge Chettle. Underneath those addresses were the words: ‘The Judge is Judge Chettle’.
As a result of the Facebook post, between 12 November and 30 December 2013, some 24 emails were sent by persons, other than the respondent, to one or more of the email addresses that were listed on the Facebook post. Nineteen of those emails were sent between 12 November and 15 November 2013.
Detective Senior Constable Turley, who had the responsibility for investigating this matter, accessed the Facebook page of Santo Bonacci, and viewed the Facebook posts on it on 21 December 2013 and 6 January 2014.
The internet radio broadcast
On 12 November 2013, the respondent gave an interview on an internet radio broadcast entitled ‘Outside-The-Box-Open-Forum’. That internet broadcast was, and remained at the date of the originating motion, available at an address which consisted of a link on a website that was accessed via the respondent’s Facebook page. The applicant relies on the following statements made by the respondent in the course of that broadcast:
(i)Today I posted on Facebook about two friends of mine that I’ve known for two years. They approached me two years ago about a problem, they had with police. If I remember correctly … Kerry was growing marijuana plants … .
The respondent then stated that ‘Mickey’ lived in the same place, that they were taken by the police to the police station and that they went ‘down the common law jurisdiction’ and ‘up for a trial’. He then said (inter alia) that the police had ruined their lives, and that Kerry had been kicked out of her house. The respondent stated that he was ‘reaching out to Australians … that are listening in the Melbourne area’ and that he would really like to help Kerry and Mickey. He said that their lives had been ruined and that Kerry was very upset and suicidal. The respondent then said the following words, which are the second part of the broadcast relied on by the applicant:
(ii)Now I’m sorry to be the bearer of bad news friends but I’m sure there is some local people here in Melbourne. Get onto Skype to me, Santos Bonacci’s my Skype handle, get onto Facebook, and check out the emails of all the people involved in this case, policemen, judge etc it’s … and I’ve got all the email address … .
The respondent then stated the following words which are relied on:
(iii)At least we could … let them know that we’re watching, and we’re interested in the case, because this is pretty interesting that an individual being of light is no longer allowed to grow the plant of their choice on this planet and we are now under threat of being caged.
There next immediately followed the passage relied on:
(iv)… This is people trafficking. This is the basis of all crimes, this slavery. And I think this judge, Judge Chettle, that’s his name, Judge Chettle, needs to know and all the police men, that this is trafficking … .
There then followed a long passage which was quite rambling, and made little sense. In it, the respondent stated ‘we have the threat of being thrown in cages, this is slavery’. He stated ‘… I wonder whether Judge Chettle is sitting on a … bunch of financial instruments as he sits on a common law jurisdiction’. He referred (inter alia) to Satan, and the devil, to the Jesuits and the Vatican, and that everyone would be destroyed ‘… by this evil system of Babylon … ‘. After further rambling, and unintelligible, remarks, he stated ‘… unfortunately this age we live in has brought this justice system upon us’. He again alleged that what was involved was slavery. There then followed the following remarks, which are relied on by the prosecution:
(v)I would suggest that … we need to look into this case … find out … the bonds and the securities that have been created for this case of Mickey Oleyar and Kerry Marks that are being tried today in the County Court 250 William Street Melbourne, Melbourne County Court.
There followed a further passage, in the same vein, referring, inter alia, to Judge Chettle and the policemen involved in this ‘very clear example of slavery and piracy on the high seas’. He then made the following remarks, which are relied on by the applicant:
(vi)Well friends, please hop on this. If you are able, if you have the energy and the love let the County Court know … that we’re onto their game, and let this be an example, probably for ever more, that we wish to make a stand against people trafficking.
Shortly following, there was the next passage on which the applicant relies, in which the respondent stated:
(vii)We need to let these thugs know, that they will be next, all of them, all of them will be next. The way you treat one, you shall be treated. And this must be, this evil system, it is evil, and it serves no-one, must be pulled down, and it must be done now, immediately.
The emails
As I have stated, the application is based on seven emails published by the respondent. Each of the emails were sent from the first email address ([email protected]).
The first email was sent on 18 November 2013 to a number of email addresses, including the email address of the associate of the presiding judge, the email addresses of five members of the staff of the Chief Judge of the County Court, and an incorrect email address for the presiding judge. It contained the following passages, on which the applicant, in particular, relies:
(i)The title of the email was ‘Warning! We know you are criminals, now we have the proof and will go viral with and you hear from us!!!’
(ii)‘This one’s for mayor Robert Doyle Chief Justice And another foreclosed entity called Geoff Chettle’.
(iii)‘Regarding mickey oleyar and kerry marks currently being held in Custody unlawfully in the People trafficking city if Melbourne’.
(iv)‘Just a little heads up for all privateers being named and brought into the light as the criminals you are … your days of pirating the people through their “vessel” are over’.
The email stated that every action you do against another that harms is permanent and cannot be erased, and shall be ‘balanced according to universal law’. The email then stated:
(v)‘That which you have wished upon another is YOUR wish granted in return’.
The email then stated ‘you are being watched and reported on’. It suggested that the recipients read the Geneva Conventions and it alleged that their actions ‘of daily theft’ makes them destroyers. The email then stated:
(vi)‘What ye sow, so shall ye reap is the message I recall reading once in all the ancient tomes … find attached various truths to enable you to see your crimes against humanity as well as the links to further your own awakening. Regardless, you are now on the world stage for all to see and this is how to make criminals famous’.
Immediately beneath those words are the following:
(vii) DID YOU KNOW YOUR’E A CRIMINAL?
The second email was sent on 19 December 2013 to the same recipients as the first email, and it forwarded the first (18 November) email. In addition, the respondent also wrote:
Seems like all you (expletive) have not got the memo!!! All you (expletive) are going to jail!!! People traffickers you first Chettle (expletive) BAR (foreign agency) British accredited Registry member, Then you Doyle, (expletive) Chief Justice of Melbourne!!!.
On 21 December 2013, the applicant sent the third email to the same addresses. It contained the following:
To Geoff Chettle, from the WITNESS and the WITNESSES!
Listen good (expletive)! I’m not a fiction (EXPLETIVE)! Get it!!??
Don’t worry mother (expletive) people trafficker, you WILL be in Jail where you deserve to be very soon you (expletive expletive).
How dare you Milk the bonds of Mickey Olear and Kerry Marks.
How much money are you making for your pimp masters you dirty PAWN of (expletive)!
We the Private people are preparing a private prosecution as WITNESSES of your crimes (please continue in this case, we want as much evidence as possible), you and your (expletive) pedophile BAR, RABBI, (RABBANIN, Sons of RA inversive brethren)!
Here’s my work (EXPLETIVE), get familiar with and get enlightened:
MY NAME AND NEVER FORGET!!!
Mother (expletive expletive expletive) piece of (expletive) dirty filthy hearted (expletive)!!
You will be found guilty of aiding and abetting a live human beings to commit fraud by using their legal name which is Crown Owned and amounts to fraud!!
You induce living beings to dead status by joining them to their dead legal name!
As you act so it will be done to you!!!!
You are famous by the way. Millions of people are watching you around the world from my daily radio shows, this is what they get every day: http// of you (expletive) have been noticed of your crimes, MENE MENE TEKL PARSIN.
On 23 December 2013, the respondent sent three emails, between about 2.45 pm and 3.00 pm, to the same addresses, each of which were identical. Those emails forwarded the email of 21 December. The emails were each entitled ‘Re: stop your people trafficking now MOTHER (EXPLETIVE)’. The first one contained the following additional words ‘Hey you bunch of low life (EXPLETIVE), read this (expletive)’. The second email contained those extra words, and in addition ‘Another one for good measure (expletive) criminals’. The third email contained those additional words, and also ‘And another, you vile pieces of (expletive)!!!’.
On 30 December 2013, the respondent sent an email to the same addresses. It was entitled ‘Re: stop your people trafficking now EXPLETIVE’. The writer described himself as the witness ‘to your pre-crimes/crimes via your INTENT’. He described himself as a witness to the recipients’ consent to ‘wear a corporate uniform’ which was ‘prima facie evidence of your INTENT to commit crimes … where your ignorance is not and never will be a defences in any living court where you WILL be privately prosecuted … ‘. It alleged that the recipients were in fact ‘committing pre-meditated murder with intent to kill a living being by means of a dead LEGAL NAME’. It described the conduct of the recipients as an intent to defraud and commit crimes against humanity. In the email the respondent gave the recipients a choice. A fair construction of that choice, as expressed in the email, was either to continue with the proceeding, or ‘to be free’ by desisting from it. It alleged that the recipients, by their actions, were each a ‘beligerant’ according (inter alia) to the law of nations/Nuremberg principles, rendering them liable to a forfeiture of their property at common law.
Substituted service and absence of respondent
The applicant made a number of unsuccessful attempts to serve the proceeding personally on the respondent. In the course of the interlocutory hearings, it became clear that the respondent was well aware of the proceeding that had been brought against him, and that he was seeking to evade service of it. Accordingly, I made an order for substituted service of the proceeding on him. I also issued a warrant for his arrest, in order to ensure that he was before the court on the return of the originating motion.
Notwithstanding a number of attempts to secure the respondent’s attendance at court, he did not appear on the hearing of the substantive application before me. It was clear that the respondent was well aware of the proceeding against him, and, indeed, he had indicated that he did not intend to attend. In those circumstances, I determined that it was appropriate that the proceeding, on the substantive issue, against the respondent, be heard in his absence.
It is well established that it is highly desirable, in proceedings of this type, that the respondent to the alleged contempt be before the court to answer it.[1] In view of the absence of the respondent, and in view of the order that I made for substituted service of the proceeding on him, it is appropriate that I set out, in some detail, the steps that were taken to try to ensure that personal service of the proceeding was effected on him, and that he was before the court on the hearing of the substantive application against him. The chronology of events, that I shall recite, is based on two affidavits of a process server, Mr Garry Scales, an affidavit of Senior Sergeant Frank Bodor, and five affidavits of Daniel Quentin Jones, the solicitor responsible for the conduct of the proceeding on behalf of the applicant.
[1]Attorney-General (NSW) v Haydon (1994) 34 NSWLR 638; Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641; Scott v O’Riley [2007] NSWSC 560 (14 March 2007), [2] (Brereton J).
The proceeding was commenced by the issue of the originating motion and accompanying summons on 31 July 2014. At that time, a warrant had already been issued by the Dandenong Magistrates’ Court for the arrest of the respondent due to his failure to appear at that court on 1 July. Senior Sergeant Bodor, who was responsible for the execution of the warrant, has deposed that there were three known addresses of the respondent, namely, 12 Wintersun Road, Berwick (the first Berwick address), at 46 Browtop, Narre Warren North (the Narre Warren address), and 40 Coowarra Way, Berwick (the second Berwick address). Sergeant Bodor was unable to locate the respondent at any of those three addresses, which he attended, in company with other members of Victoria Police, in July 2014.
On 6 August 2014, Mr Scales attended at the first Berwick address, and spoke to an adult male, who advised him that the respondent was not known to him. The person, to whom Mr Scales spoke, said that he had been at the address for six months. That person did not resemble the photograph of the respondent that had been provided to Mr Scales.
On 15 August 2014, Mr Jones sent an email to the respondent at the email addresses of [email protected] (the first email address) and contact@universaltruth school.com (the second email address) requesting that he make arrangements to accept service of the court documents. The first email address is the same address from which the respondent is alleged to have sent the seven emails between 18 November and 30 December 2013.
As Mr Jones did not receive a response to those emails, he instructed Mr Scales to make a further attempt to serve the respondent at the first Berwick address and at the Narre Warren address.
On 6 September 2014, Mr Scales attended again at the first Berwick address. He spoke to the same male, to whom he had spoken on 6 August. That person told Mr Scales that the respondent was a ‘sovereign person who refuses to follow government rules’, and that the respondent was in hiding.
On 8 September, Mr Scales attended at the Narre Warren address, and spoke to a female. She said that that house was owned by her son, that the respondent had been a tenant at the address for seven years, but that he had moved out two years ago. She did not have any information as to his present whereabouts.
On 9 September, at 5.10 pm, Mr Jones telephoned the respondent on a mobile telephone number that had been provided to him by Detective Senior Constable Turley, who had been assigned the responsibility of investigating various emails that are the subject of these proceedings. Mr Jones’s telephone call was answered by a person who identified himself as ‘Sam’. Mr Jones has deposed that he believed that that person to whom he spoke was the respondent for a number of reasons. Based on the matters set out in Mr Jones’s affidavit, I am satisfied that he did, indeed, speak with the respondent.
During that conversation, Mr Jones advised the respondent of his name and telephone number, as to the nature and background to the court proceedings, and that the court documents included the summons that required him to attend at a directions hearing on 16 September 2014. Mr Jones advised the respondent that the matter was important and serious and that it required his attention, and he recommended that the respondent should obtain legal advice. Throughout the conversation the respondent intervened, continually, attempting to debate irrelevant and pedantic points. In the course of the conversation, he stated that he would not respond to the summons, as he was a living person and a summons was for the dead, that he would not respond to allegations, only claims, and that he would not respond to affidavits, only statutory declarations.
On 10 September, Mr Jones telephoned the respondent again on the same telephone number. This time the telephone rang through to a voice mail message. Mr Jones recognised the voice on the voice mail as that of the respondent. He left a message confirming that the directions hearing was taking place at 9.15 am on Tuesday 16 September 2014.
On the same day, 10 September, at 3.19 pm, Mr Jones received an email from the respondent from the email address [email protected] which contained a link to a YouTube link to a video entitled ‘Christian man named Dan part 2’.
On 11 September, Mr Jones sent a reply to the respondent’s email, again confirming the date and time of the directions hearing. Mr Jones requested that the respondent make arrangements for service of the court documents. In response, later on 11 September, Mr Jones received another email from the respondent from the email address [email protected], which stated ‘Who is “we” and who is the “Attorney-General?”’.
On 12 September 2014, Mr Jones sent a reply to the respondent’s email, again repeating his request that the respondent attend court, and make arrangements for service of the proceeding on him. On 15 September, Mr Jones sent another email to the respondent at the address [email protected], forwarding an email, that had been received from my Associate, to the effect that the directions hearing on the following day would be held in Court 11.
Subsequently, on the same day (15 September), Mr Jones received an envelope from the respondent, that contained a four page document purporting to be a legal notice. It was full of religious and biblical references. It was addressed to Mr Jones and Peter Stewart ‘acting as agents for the commercial entity Victoria Government Solicitor’s Office’. The document was couched in florid and rather obscure terms. However, in it he conveyed his intention not to appear in the ‘commercial dead corporate courts of Australia’. In doing so, he offered his ‘sincere apology for the foul words, the anger of my friends being abused for possession of God’s gift fostered in me’. He said, ‘my words directed in anger alone shall be reactionary and I want to make all aware that I do so and truly believe that in my heart I have never intended to speak ill about or defame any living man or woman in my social media or radio broadcast. I do recognise that it was done in foolish anger and that it was in error applied’.
It is clear, from the contents of that document, that the respondent was well aware of the proceeding before him, that he understood that the proceeding related to the materials that he had disseminated on social media and on the radio, and that he did not intend to appear at court to answer the proceeding against him.
On the next day, 16 September, at the directions hearing before me, I made a specific order that the respondent attend at court on 24 September 2014, and thereafter as he may be required, to answer the originating motion. I directed that a copy of the order be served on him, and that a copy of the originating motion, summons and affidavits in support be provided to him, by sending them to the first and second email addresses.
On 18 September, Mr Jones sent to the respondent a series of emails, to the two email addresses, attaching the order, summons, originating motion and six affidavits in support of the originating motion, together with a letter to the respondent advising him of the orders, and of the likely consequences should he fail to comply with them. In the letter, Mr Jones encouraged the respondent to obtain legal advice.
At 2.50 pm on 23 September, Mr Jones received a four page document from the respondent by express post entitled ‘Amended document’. The document is again expressed in florid and extravagant language, with further biblical references. Without reciting the contents of the document, it is clear from it that the respondent had received and was aware of the documents that had been sent to him by way of substituted service. The respondent also made it clear, in the document, that he did not intend to appear in court in response to those documents.
Accordingly, on 24 September, I made an order, pursuant to rule 75.08 of the Supreme Court Rules, that an arrest warrant be issued to apprehend the respondent and bring him before the court to answer the charges of contempt.
In the following two months, it was not possible to serve the arrest warrant on the respondent. On 10 November 2014, the applicant posted, on his Facebook page, an entry referring to proceedings against him for contempt of court, and stating that he had been served via email with those proceedings, and that the proceedings were entitled ‘The Attorney-General and the Queen v Mr Santo Bonacci’. The respondent, in that post, stated that he had sent a letter to Mr Jones ‘… with my lawful excuse for not attending this Kangaroo court’. The respondent then stated that those letters were ignored and the judge issued an ‘authenticated order to have Mr Santo Bonacci arrested and brought in to court’.
On 27 November, I made an order that the warrant not be executed on the respondent before 30 January. I also made an order, by way of substituted service, that the originating motion, summons and affidavits in support be served on the respondent by sending them by email or emails to the two addresses, that I have mentioned above. I ordered that service of the documents in that way shall constitute good and proper service on the respondent. I fixed the matter for trial on 13 February 2015.
On 1 December 2014, in accordance with the orders that I made on 27 November, Mr Jones sent emails to the respondent at the two email addresses, containing copies of the orders and the applicant’s originating motion, summons and affidavits by way of substituted service.
On 6 February 2015, Mr Jones forwarded, by email, to my Associate, and to the respondent at the two email addresses, the applicant’s outline of submissions.
On 7 February, my Associate received an email from the respondent from his email address [email protected]. It was headed ‘Attention: Legal Department’. The contents of the document were illogical and largely unintelligible. However, as a whole, they appeared to dispute the legitimacy of the proceeding and of the court, contending that the proceeding is a fraud. The email contained a link to a YouTube video.
On 9 February, my Associate forwarded a copy of that email to the solicitors for the applicant, and a copy to the respondent at the two email addresses mentioned above. On 12 February, Mr Jones accessed the YouTube link and the email. In it, the respondent said that the name Santo Bonacci did not belong to him, but that it is Crown property, that he was not subject to Crown jurisdiction, that he is not a respondent or a defendant, and that he is not a person. On 12 February, Mr Jones also accessed the web page and scrolled to a post dated 10 November 2014. In that post, the respondent expressly referred to the fact that he knew that there was a warrant out for his arrest in respect of contempt of court, that he was served via email in the proceeding and that the judge had issued an authenticated order to have him arrested and brought to court.
On 13 February, counsel for the applicant requested an adjournment of the proceeding, in the hope or expectation that the respondent might shortly be arrested and brought before the court. Accordingly, I adjourned the proceeding to 27 March, and directed that a copy of the order be served on the respondent at his two email addresses.
The order for substituted service
The order which I made, on 27 November, for substituted service, was based on the matters that I have recited above, and which preceded that date. It was clear that, notwithstanding a number of attempts to do so, it had not been possible for the applicant to effect personal service of the process on the respondent. On the other hand, the communications received from the respondent before 27 November had demonstrated, and the communications received from him since that date have confirmed, that the transmission of the documents to the respondent by email was effective to bring them to his attention, and to provide him with them. It is evident from the communications received from the respondent that he sufficiently understood the nature of the process, that had been issued against him, and that was brought to his attention. In communications with him, the applicant’s solicitor had conveyed to him the seriousness of the proceeding brought against him, of the need for him to appear and respond to the charges contained in the originating motion and the summons, and that it was desirable that he obtain appropriate legal representation and advice.
The proceedings brought against the respondent are criminal in nature. Ordinarily, the courts insist on strict compliance with the requirement that the process, in such a case, be personally served on the respondent. However, the requirement for personal service is not indispensable in such a case. There is a significant body of authority that supports the proposition that, in an appropriate case, a court may make an order for substituted service in respect of the process by which contempt proceedings have been instituted against a respondent.[2] In Ronowska v Kus (No 2),[3] Pembroke J made an order for substituted service on the second defendant by sending the relevant documents to him at his email address. In explaining the basis upon which he made that order, his Honour stated:
The evident purpose of the requirement for personal service in Part 55 of the Supreme Court Rules is to ensure that, before there is a finding that a person is guilty of contempt, the alleged contemnor is clearly informed of the charge against him and is given ‘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’: Coward v Stapleton[4]. If that purpose is achieved by means other than personal service, there can be no unfairness and no objection in principle to proceeding with the hearing of the application against him.[5]
[2]Mander v Falcke [1891] 3 Ch. 488, 492-3 (Kekewich J); Taylor v Whelan [1962] VR 306, 309-10 (Little J); Circuit Finance Australia v Sobbi & Anor [2010] NSWSC 789 (21 July 2010), [10] (Ball J); Doyle v Commonwealth (1985) 156 CLR 510, 517 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).
[3][2012] NSWSC 817 (27 July 2012).
[4](1953) 90 CLR 573, 579-80 (Williams ACJ, Kitto and Taylor JJ).
[5]Ibid, [31].
In the present case, I am satisfied that the process has been adequately and appropriately brought to the attention of the respondent, and that he has received all of the necessary documents relating to them. In that way, the respondent has been clearly informed of the charge against him, and he has been given a reasonable opportunity to respond to the allegations and materials contained in the documents provided to him by way of substituted service. Accordingly, I am satisfied that, notwithstanding that personal service was not effected on the respondent, nevertheless there is no unfairness or irregularity in principle to proceeding with the hearing of the application against him based on the substituted service on him of the documents in the case.
Absence of respondent
The respondent did not appear at the adjourned hearing of the proceeding on 27 March. I was satisfied, by an affidavit sworn by Mr Jones, that the adjourned date of that hearing have been brought to his attention. Notwithstanding the serious nature of the proceeding against the respondent, I nevertheless decided that it was appropriate to proceed with the hearing against him in his absence. I gave an ex tempore ruling, for doing so, which I shall amplify in this judgment.
It has been a long standing and basic principle of our criminal justice system that, ordinarily, a trial for an indictable offence should be conducted in the presence of the accused person.[6] However, that principle is not an inflexible rule, and it does admit of certain exceptions. In particular, where an accused person has deliberately absented himself by absconding on bail during the trial, that conduct of the accused has been considered, in an appropriate case, to constitute a waiver by the accused of his, or her, right to be present at the trial. In such a case, the criminal proceedings have continued against the accused in his or her absence. See R v McHardie & Danielson;[7] R v Jones;[8] R v O’Neill;[9] R v Mokbel;[10] R v Serrano (No 5).[11]
[6]See for example Lawrence v R [1933] AC 699, 708; R v Abrahams (1895) 21 VLR 343, 347-8.
[7][1983] 2 NSWLR 733.
[8](1998) 72 SASR 281.
[9](2002) 81 SASR 359, 367 (Martin J).
[10](Unreported, Supreme Court of Victoria, Gillard J, 23 March 2006); affirmed on appeal, (2010) 30 VR 115, [42].
[11](2007) 16 VR 360, 365-6.
In R v Jones,[12] the accused absconded at an early stage of his trial. The trial judge refused to adjourn the trial, and the accused was convicted, in his absence, by the jury. The Court of Criminal Appeal of South Australia held that the trial judge had not erred in the exercise of his discretion in continuing the trial in the absence of the accused. Lander J (with whom Prior and Wicks JJ agreed) stated:
In my opinion a court may proceed with the trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings.
In any of those cases, if the court is satisfied that the accused has waived his or her right to be present during a trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial.
Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.[13]
[12](1998) 72 SASR 281.
[13]Ibid, 294-5.
In Ronowska v Kus (No 2),[14] Pembroke J applied the principles, to which I have referred, to a case in which the second defendant failed to attend the hearing of a charge of contempt of court against him. His Honour concluded that the conduct of the second defendant had amounted to a voluntary waiver of his right to be present at the hearing against him. The only prejudice to the second defendant, in that case, was prejudice caused by his decision not to appear to answer the charge of contempt against him. Accordingly, his Honour held that it was appropriate to hear and determine the proceeding in the second defendant’s absence.[15]
[14][2012] NSWSC 817 (27 July 2012).
[15]Ibid, [58]-[60].
That decision was followed and applied in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6),[16] in which Logan J, of the Federal Court, decided to hear submissions as to penalty, in a case of contempt, in the absence of the respondent.[17]
[16][2013] FCA 1112 (24 October 2013).
[17]Ibid, [16]-[21].
In the present case, based on the history of the proceeding that I have outlined, I am well satisfied that the respondent has been served with, and has received, the originating motion, the summons, and the affidavits in support of the application against him. I am also satisfied, from the communications that the respondent has had with the applicant’s instructing solicitor, and from his Facebook post of 10 November 2014, that he understands the nature and gravamen of the proceeding and the application that has been brought against him. The applicant’s solicitor has, in clear terms, reinforced to the respondent the serious nature of the application against him, the need for him to appear to respond to the charges of contempt against him, and the importance that he obtain legal advice and representation, in order to protect his rights.
I am further satisfied that the respondent has, more than once, indicated, unambiguously, that he does not intend to attend the proceeding, or to participate in it. The respondent has made his intentions, in that regard, abundantly clear, in his communications with the applicant’s solicitor, in his communication to this Court on 7 February, and in his Facebook post of 10 November 2014. In that way, I am well satisfied that the respondent has chosen to waive his right to attend and to answer the charges that have been brought against him.
There have now been a number of hearings before me, at which the respondent has declined to appear. The respondent has over a period of several months evaded personal service of these proceedings, and of the warrants that were issued against him by the Dandenong Court. As I stated, nevertheless, I am fully satisfied that the applicant has had communicated to him the relevant documents in these proceedings, and that, notwithstanding his unusual manner of expressing himself, he has manifested a fundamental understanding of the nature of the proceeding brought against him.
I am satisfied that, by proceeding to hear the substantive application in the absence of the respondent, no additional prejudice was occasioned to the respondent, apart from the prejudice arising from his failure to attend and to make submissions in response to the charges against him. In that regard, counsel for the applicant have been conscientious to draw to my attention any matter which they consider ought to be taken into account in favour of the respondent.
In determining to proceed in the absence of the respondent, I did not consider, other than cursorily, the apparent strength of the case against him. Nevertheless, it was relevant that the case against the respondent is not based on viva voce evidence, which might be contested on the basis of its reliability or credibility. Rather, the case against the respondent is contained in material posted on the internet, and in emails. There is cogent evidence, to which I shall refer, that the respondent was responsible for the posting of that material on the internet and for the transmission of the emails, that are the subject of the application against him in this proceeding.
On the other hand, I considered that there was no point in further adjoining the proceeding. There have already been a number of preliminary hearings before me. Every effort has been made to bring the respondent to the court to answer the charges against him. The hearing of the proceeding was adjourned on 13 February, for the specific purpose of endeavouring to bring the respondent to court to answer the charges of contempt against him. I formed the view that it would be pointless to adjourn the case yet again. I had every expectation that the respondent would not attend, even if I were to put the matter over to another day.
In addition, it is important to bear in mind that it is in the public interest that cases such as this be heard and disposed of without undue delay. The matters, which are the subject of the proceeding, took place at the end of 2013. It is not in the public interest that a contempt proceeding, based on materials posted on the internet by the respondent, and emails sent by him, more than one year ago, be further delayed. There is an important public interest in the vindication of the processes of the court, and the independence and integrity of the court, which are a fundamental part of our democratic system.
For those reasons, and notwithstanding that I was conscious that the discretion to proceed in the absence of the respondent should be exercised sparingly, I determined to hear and decide the case in the absence of the respondent.
The substantive proceeding
I turn, then, to the substantive proceeding against the respondent. In order to prove the charges of contempt against the respondent, the applicant must prove, beyond reasonable doubt, in the case of each alleged contempt —
(a) That the respondent was responsible for the publication of the matter which is alleged to constitute a contempt of court.
(b) That that material did constitute a contempt of the court.
Publication of the alleged contempts
As I have already noted, there were three sets of publications by the respondent which, the applicant alleges, were in contempt of court, namely —
(a) The posting on the Facebook on 11 November 2013.
(b) The statements by the respondent on an internet radio broadcast on 12 November 2013.
(c) The seven emails sent to officers of the court between 18 November and 30 December 2013.
I am satisfied, beyond reasonable doubt, that the respondent was responsible for the Facebook post. First, of course, that post bears his name. More significantly, there were two photographs on the Facebook page, which contained the link to the Facebook post. One of those photographs was also on the Facebook post. Mr Jones was able to access, through the Facebook page, enlargened versions of that photograph. Those photographs were shown to Mr Christopher Moore, who is the supervisor in the South East Metro Region of the Sheriff’s Office of Victoria. On 20 January 2014, Mr Moore had been responsible for arresting the respondent on a large number of infringement warrants issued in relation to him. Mr Moore was able to identify the respondent as the person depicted in the photographs that I have just described.
In his affidavit, Mr Jones has deposed that he was able to access the internet radio broadcast through a link on the Facebook page. Mr Jones listened to the broadcast, and he burnt a copy of it to a compact disc that was tendered in evidence. When Mr Jones spoke on the telephone to the respondent, he recognised the voice of the person to whom he spoke as the same voice that he had heard on the internet radio broadcast, which he had burnt onto a compact disc. In the course of the conversation, the person, to whom Mr Jones spoke, referred to the same themes, and used the same language, that were contained in the internet radio broadcast, and he acknowledged that ‘Mickey Oleyar’ and ‘Kerry Marks’ were his acquaintances. He made reference to what he claimed to have been done to those two persons by the County Court.
Based on those matters, I am satisfied that the respondent is the person who spoke the words contained in the internet radio broadcast, that are the subject of the proceeding.
As I have already stated, the seven emails, which are the subject of the third charge against the respondent, were sent from the first email address, [email protected]. Mr Jones has deposed that in May 2014 he opened the website Through a link, that website revealed that the email address, which was described as the ‘contact’ on the home page of the website, was the first email address. Mr Jones then returned to the web page Through a link he accessed another website. That website had an icon ‘play’, which, when pressed, produced the photograph which Mr Moore recognised as a photograph of the respondent.
In addition to those matters, each of the seven emails, sent from the first email address, contained the same incorrect email address of Judge Chettle, as did the Facebook post of 11 November. Further, the email sent to Mr Jones, dated 15 September 2014, was transmitted from the first email address. The contents of that email evidenced a familiarity, by the person who sent it, with the substance of the publications, that are the subject of the contempt charges in this proceeding.
Taking all those matters into account, I am satisfied, beyond reasonable doubt, that the respondent was responsible for the Facebook post, for the publication of the words spoken on the internet radio broadcast, and for the transmission of the seven emails, that are the subject of these proceedings.
Whether the publications by the defendant were a contempt: applicant’s submissions
The next question is whether the publications, made by the respondent, were a contempt of court.
Mr J Langmead QC, who appeared with Ms F Forsyth for the applicant, submitted that the Facebook page, and the internet radio broadcast, were each a contempt of court, because they were intended to incite others to communicate with the presiding judge, his staff, and the County Court, for the purpose of improperly influencing the outcome of the criminal proceedings that were then before that court. Mr Langmead submitted that each of the emails were a contempt of court, because they were intended, and had a tendency, to interfere with the judge and officers of the County Court, by improperly placing pressure on, or intimidating, the judge and the court in the performance of their duties. In their written outline, counsel for the respondent also contended that the emails had a tendency to be abusive of a judicial officer in relation to his duties in a pending proceeding.[18] However, in submissions before me, Mr Langmead did not rely on that ground.
[18]Compare R v Slaveski [2011] VSC 643 (13 December 2011), [153] (Whelan J); Attorney-General for the State of Victoria v Rich [1998] VSC 41 (21 August 1998), [16] (Byrne J); R v Castro (1873) LR 9 QB 230, 232 (Blackburn J); R v Dunbabin; Ex parte Williams (1935) 53 CLR 434, 442 (Rich J).
In general, a contempt of court consists of conduct that interferes with, or which has a real and definite tendency, as a matter of practical reality, to interfere with, the course of justice.[19] The fundamental purpose of the law of contempt is to protect and uphold the integrity and independence of the court, and to vindicate public confidence in the judicial process.[20]
[19]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370, 372 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Victoria v Australian Building Construction Employees & Builders Labourers Federation (1982) 152 CLR 25, 56 (Gibbs CJ), 99 (Mason J), 166 (Brennan J); Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ), 57 (Deane J), 70 (Toohey J).
[20]See for example Witham v Holloway (1995) 183 CLR 525, 533-4 (Brennan, Deane, Toohey and Gaudron JJ), 538 (McHugh J).
This case is not concerned with an alleged contempt contained in a publication at large concerning a case, or an issue in a case, that is currently pending or before the court. Where that type of contempt is alleged, the court is required to assess, objectively, whether the particular publication had a real and practical tendency to interfere with the case that was before it. In such a case, proof of an intention to interfere with, or obstruct, the administration of justice is not a necessary element of the charge,[21] although it is relevant to the determination of the question whether the publication had the requisite tendency to interfere with the administration of justice.
[21]Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650, 656; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371.
Rather, in this case, the applicant alleges and relies on conduct that was undertaken by the respondent with the specific intention of influencing, and inciting others to influence, the conduct of criminal proceedings before the court, by directly making contact with the court for that particular purpose.
It is well established that it is a contempt of court to make contact with a court, by communicating with it extra-curially, for the specific purpose of influencing or affecting the decision of the court in respect of a case then before it. A fortiori, it is a contempt of court to incite others to indulge in the same conduct by contacting the court in order to effectuate that purpose. In such a case, it is not necessary for the applicant to establish that the improper contact with the court had a tendency to, or did, in any way affect or influence the decision of the court. Rather, that conduct, per se, has been held to constitute conduct that has a tendency to interfere with the course of justice.
In Re Dyce Sombre,[22] Mr Sombre presented a petition to supersede the commission under which he had been found a lunatic in 1843. The proceeding that was before the court was the fifth such petition on behalf of Mr Sombre. Based on the opinion for medical practitioners who examined the petitioner, counsel stated to the court that he could not proceed with the application. The case was then stood over as to the question of costs. Shortly thereafter, the Lord Chancellor, Cottenham LC, received two communications from other medical practitioners taking issue with the evidence that had been put before the Lord Chancellor. When the matter came on for judgment, his Lordship stated as follows:
The whole of this proceeding was most irregular and improper. Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of court.[23]
[22](1849) 1 MaC. & G. 116; 41 ER 1207.
[23]Ibid, 122; 1209.
In JRL; Ex parte CJL,[24] the High Court was concerned with custody proceedings that had been before the Family Court, in which a court counsellor had spoken privately in chambers to the judge concerning the potential adverse effects to the child if that child remained living with her father. The High Court made absolute an order nisi for a writ prohibiting the judge from further proceeding in the matter. Mason J cited the decision of Lord Cottenham LC, in Re Dyce Sombre, in support of the following proposition:
It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except insofar as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice … Indeed, it is regarded as a serious contempt.[25]
[24](1986) 66 ALR 239.
[25]Ibid, 244.
In Smith v Lakeman,[26] in the course of legal proceedings against him, the defendant sent a letter to the plaintiff, threatening that he be indicted for ‘swindling, perjury and forgery’. Stuart VC upheld a motion by the plaintiff to commit the defendant for contempt. His Lordship stated:
It (the letter) was a threat for the purpose of intimidating him (the plaintiff) as a suitor, and, therefore, whether it had that effect or not, it was unquestionably a contempt of court. In Lechmere Charlton’s case Lord Cottenham had said: “the power of committal is given to courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter or publication, which has for its object to divert the course of justice is a contempt”. A threatening letter must be considered as having equally that object, whether addressed to a suitor seeking justice or to a judge or officer of the court.[27]
[26](1856) 26 LJ Ch 305.
[27]Ibid, 306.
In Re Ludlow Charities; Lechmere Charlton’s Case,[28] to which Stuart VC referred in Smith v Lakeman, Charlton, a barrister, who was also a Member of Parliament, appeared before a Master in Chancery in support of a petition presented by himself and others. After the hearing of that petition, Charlton addressed a letter to the Master, that was expressed in threatening terms, and which was intended to persuade the Master to alter the opinion that he had formed in relation to the case. Subsequently, Charlton also wrote a letter to the Lord Chancellor, in which he avowed authorship of the letter to the Master. Lord Cottenham LC found that Charlton was in contempt of court, and he committed him to a term of imprisonment in the Fleet, ‘during pleasure’. In reaching that conclusion, Lord Cottenham stated:
The power of committal is given to Courts of justice, for the purpose of securing the better and more secure administration of justice. Every writing, letter, or publication which has for its object to divert the course of justice is a contempt of the court. It is for that reason that publications of proceedings which have already taken place, when made with a view of influencing the ultimate result of the cause, have been deemed contempts. … Every insult offered to a Judge, in the exercise of the duties of his office, is a contempt; but when the writing or publication proceeds farther, and when, not by inference, but by plain and direct language, a threat is used, the object of which is to induce a judicial officer to depart from the course of his judicial duty, and to adopt a course he would not otherwise pursue, it is a contempt of the very highest order.[29]
[28](1837) 2 My. & Cr. 316, 40 ER 661; 45RR68.
[29]Ibid, 339; 670-671; 77.
In Attorney-General (NSW) v John Fairfax & Sons Ltd,[30] Street CJ described the principles in similar terms, as follows:
Without purporting to state the test exhaustively, it can be said that contempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively, by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings has been, or what it probably will be. …
There is, however, another class of case where a publication will constitute contempt, even though the possibility of interference is remote or theoretical. These are cases where matter is published with the intention of interfering with the due administration of justice in the particular case. The same principle applies to other acts done with that intention. Thus a letter written to a judge trying a case, or a bribe offered to him, or an article published in a newspaper, will be contemptuous, if the act was done, or the publication made, with the intention of influencing the judge’s decision in proceedings, even though the possibility that he will be influenced is remote or theoretical. … .[31]
[30][1980] 1 NSWLR 362.
[31]Ibid, 368-9; see also Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682, 690-691 (Moffitt P).
In Attorney-General v Soundy,[32] the respondents wrote letters to the Licensing Court for the District of Hobart making representations that an applicant before it not be granted a licence. The Full Court of Tasmania held that the Licensing Court was a court to which the principles of contempt apply. The court held that the letters written to the Licensing Court constituted a contempt of the Licensing Court. Crisp CJ (with whom Clark J agreed) stated:
… the question in all cases of comment on pending proceedings is not whether the publication actually interferes, but whether it tends to interfere with the due course of justice. It seems to me beyond doubt that the letter here had that tendency. It was written for the very purpose of influencing the Licensing Court. The members of the Licensing Court, in dealing with applications for licences, informed their minds in various ways: but that does not mean that members of the public are entitled to inform the minds of the court unasked. There was here, I think, no mere irregularity, but an attempt to influence the court by a wrong method.[33]
[32](1938) 33 Tas LR 143, 148.
[33]Ibid, 148.
In TheQueen v Vasiliou,[34] in proceedings against the respondent’s trustee in bankruptcy, the respondent sent an email to one of the associates of the judge before whom the proceedings was being heard. The email was abusive of the respondent’s trustee, and contained a threat of extreme violence against him, if the court should uphold the position of the trustee in the litigation. Beach J held that the email was a contempt of court. His Honour noted that the statements in the email were calculated to improperly influence the decision of the trial judge, and to intimidate the trustee and the trial judge. His Honour observed, ‘… the fact that ultimately he did not have either of these effects is not relevant’.[35]
[34][2012] VSC 216 (25 May 2012).
[35]Ibid, [36]-[37].
The authorities, to which I have just referred, are, I consider, a sound foundation for the proposition advanced by the applicant, namely, that conduct consisting of direct communications to a court, for the specific purpose of influencing the course of proceedings of a case then before that court, are a contempt of court, because such conduct, of itself, has a real and definite tendency to interfere with the course of justice. In such a case, it is not to the point that the court may not, or would not, have been affected or influenced by the conduct. Rather, the contempt lies in the deliberate communication with the court with the specific intention of influencing or affecting the outcome of a case before that court.
Bearing those principles in mind, I now consider each of the communications which are alleged to have been a contempt of court by the respondent.
The Facebook page
The Facebook page was a clear contempt of court by the respondent. As Mr Langmead pointed out, it was a direct exhortation to others to contact the County Court in respect of the criminal proceedings against Oleyar and Marks, that were then proceeding in that court. It contained the email addresses of a number of officials of the court, including an incorrect email address of the presiding judge. The email concluded with the words ‘please help me make a fuss about this so that it stops once and for all’. The respondent thus expressly stated his intention that others communicate with the court, in order to bring the proceedings, against Marks and Oleyar, to an end. The publication, on the Facebook page, was, as I stated, a clear contempt of court.
The internet radio broadcast
In a similar manner, the internet radio broadcast exhorted listeners to the broadcast to make improper contact with the judge to express their opposition to the proceedings, in the County Court, against Marks and Oleyar. In the broadcast, the respondent directed listeners to his Facebook page, which, he stated, contained the email addresses of those involved in the case, including the judge. He encouraged listeners to contact the court, again, to express their opposition to the criminal proceedings against Oleyar and Marks. More tellingly, at the conclusion of the broadcast, the respondent stated the particular purpose of the intended communications, namely, so that the system could ‘be pulled down’. Once again, the radio broadcast was a direct incitement by the respondent to others to make improper communications with the court for the purpose of influencing the court in respect of the criminal proceedings that were before it. As such, it was a contempt of court.
The seven emails
The applicant alleges that each of the emails was intended to, and had a tendency to, interfere with the administration of justice, because they were each intended to influence, place improper pressure on, and to threaten or intimidate, a judicial officer in the performance of his duties.
As I stated, each of the emails were directed to the incorrect email address of the trial judge, and his associate. Having been directed to his associate, they were calculated to come to the attention of the judge.
I am satisfied that each of the seven emails, relied on by the applicant, were individually a contempt of court.
The first email (dated 18 November 2013) constituted a direct threat. It commenced with the word ‘warning!’. On its face, the document was intended to intimidate the persons to whom it was addressed, including the presiding judge, in connection with the proceedings referred to in the email, namely, the proceedings against Oleyar and Marks. It was a contempt of court.
The second email (dated 19 December 2013) by forwarding the first email to the same recipients, as such, also constituted a contempt of court. Further, the additional words contained in it, and which I have set out in paragraph 19 above, emphasised and added force to the threat contained in the first email.
The third email (dated 21 December 2013) was expressed in strong and abusive terms. It contained threatening language, including ‘you will be found guilty of an aiding and abetting a life human beings to commit fraud … ‘. It emphasised the threat contained in the email by stating ‘as you act so it will be done to you!!!!’. The email clearly intended, on its face, to intimidate the judge, to whom it was addressed, in the conduct by him of the criminal proceedings against Oleyar and Marks. It was a contempt of court.
The fourth, fifth and sixth emails were again expressed in abusive and threatening tones. They contained threats, including: ‘you will be in jail where you deserve to be very soon’; ‘we the Private people are preparing a private prosecution as WITNESSES of your crime … ‘; ‘REMEMBER MY NAME AND NEVER FORGET!!!’; ‘you will be found guilty of aiding and abetting a live human beings to commit fraud … ‘; and ‘As you act so it will be done to you!!!!’. The additional words, added to the fifth and sixth emails, increased the threatening emphasis in those documents. I have no hesitation in finding that those emails were each a contempt of court.
The seventh email (dated 30 December 2013), by its heading, was an exhortation to the court to cease its conduct in the trial of Marks and Oleyar, which the respondent, in his various publications, had characterised as ‘people trafficking’. In the email, the respondent described the conduct by the court as criminal, and as constituting ‘pre-meditated murder’. The respondent repeated the threat that the recipients of the email (including the judge) would be prosecuted. The email gave the recipients a ‘choice’ of either continuing with the trial or ‘to be free’ (which it appears could be achieved by desisting from proceeding with the trial). The email concluded with the allegation that the conduct, of the recipients of the email, constituted them a ‘beligerant’ (sic) according (inter alia) to the ‘law of nations/Nuremberg principles’, rendering the recipients liable to a forfeiture of their property at common law. Notwithstanding the unusual and eccentric method of expression of the email, it was, again, manifestly intended to dissuade the court, and in particular the judge, from proceeding with the proceedings against Marks and Oleyar. As such, it constituted a contempt of court.
For those reasons, I am satisfied that each of the publications, relied on by the applicant, constituted a contempt of court.
So far, I have considered each of those communications individually, save to the extent that some of them refer to and repeat a previous communication. I should, however, add, that each of the communications forms part of the context in which the other communications took place. It is permissible, and indeed only realistic, to consider and construe each communication in the context of the other communications that preceded it. In particular, the preceding communications are relevant to the conclusion that each of the communications were published with the specific intention of interfering with the criminal proceedings that were then before the County Court.[36] The context, constituted by the Facebook page, the internet radio broadcast, and the seven emails, collectively, reinforces my conclusion that the specific purpose and intention of the respondent, in publishing each of those matters, was to interfere with the criminal proceedings before the County Court. In that way, each of them formed part of a campaign by the respondent to place pressure on and intimidate the court in the conduct by it of the criminal proceedings against Marks and Oleyar.[37]
[36]See for example Wilson v R (1970) 123 CLR 334, 344; R v Anderson (2000) 1 VR 1, 12 [30], 14 [34] (Winneke P); R v Frawley (1993) 69 A Crim R 208, 220 (Gleeson CJ).
[37]Compare R v Duffy; Ex parte Nash [1960] 2 QB 188, 197-8; Attorney-General v Nationwide News Pty Ltd (1986) 43 SASR 374, 395 (Matheson J), 407 (Olsson J).
Summary of conclusions
For the foregoing reasons, I am satisfied that the applicant has established each of the contempts of court alleged by it against the respondent in the originating motion.
Accordingly, and subject to hearing from counsel, I shall grant declarations as follows:
(1)A declaration that the respondent be adjudged guilty of contempt of court for posting or causing to be posted material on a Facebook page on 11 November 2013.
(2)A declaration that the respondent be adjudged guilty of contempt of court for making statements on an internet radio broadcast on 12 November 2013.
(3)A declaration that the respondent be adjudged guilty of a contempt of court for sending each of the following seven emails to the court, namely emails sent by the respondent on:
(a)18 November 2013;
(b)19 November 2013;
(c)21 December 2013;
(d)23 December 2013 at 2.46 pm;
(e)23 December 2013 at 2.46 pm;
(f)23 December 2013 at 2.46 pm;
(g)30 December 2013 at 11.28 pm;
from the email address [email protected].
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