Courts and Judges—Family Court of Australia—Contempt of court—Compulsory conference to discuss welfare of child with counsellor or welfare officer—Advice by solicitor of party not to answer certain questions—Whether contempt of court—Alleged contempt not committed in face of court—Procedure for charge—Right of appeal from conviction—Whether prerogative writ should be granted—Family Law Act 1975 (Cth), ss. 44, 62, 94, 108(2)—Regulations 108, 137. High Court—Powers—Prohibition—Certiorari—Erroneous decision of judicial officer of the Commonwealth—Error on face of the record—Reasons for judgment—The Constitution (63 &64 Vict. c. 12), s. 75 (v.)—Judiciary Act 1903 (Cth), s. 31.
Decisions
September 9. The following written judgments were delivered: - BARWICK C.J. Mr. Peter Twigg, the applicant for prohibition or certiorari, was convicted by the Family Court of Australia (Cook J.) of contempt of court and fined therefor $1,000. (at p18)
2. I have had the advantage of reading the reasons for judgment in this application prepared by my brother Gibbs. The relevant facts and circumstances are there set out and I have no need to repeat or supplement them. (at p18)
3. I agree with my brother's conclusion that the Family Court lacked jurisdiction to entertain a charge of contempt not committed in the face of the Court otherwise than upon an application in that behalf properly made. (at p18)
4. I further agree that there was no evidence before the Family Court to support the conviction purported to be made of the applicant by the Court. I agree with my brother's analysis of and conclusion from the material on which that Court purported to act. (at p18)
5. I also agree that the grant of certiorari to quash is appropriate in the circumstances of the case. (at p18)
6. In my opinion, there was no warrant whatever for the conviction of the applicant or for the imposition of any fine, let alone a fine of the amount imposed. (at p18)
7. I would quash the conviction and order of the Family Court by writ of certiorari. As the Commonwealth has offered to pay the applicant's costs and as the applicant is prepared to accept that offer and not seek an order for costs, I say nothing as to what attitude I would otherwise have adopted in relation to an order for the applicant's costs. (at p19)
GIBBS J. This is the return of an order nisi for prohibition, or alternatively for certiorari, directed to the Honourable Mr. Justice Cook, a Judge of the Family Court of Australia, who, on 11 March 1980, found that the prosecutor (or applicant), Mr. Peter Twigg, was guilty of contempt of court, and imposed upon him a fine of $1,000. Mr. Twigg seeks to quash this finding and order. (at p19)
2. Mr. Twigg, who is a solicitor, was acting on behalf of Mrs. Jette Margrethe Kragh in proceedings…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Cook; ex parte Twigg
Sign in free to access the full text
Details
AGLC
R v Cook; ex parte Twigg [1980] HCA 36
Case
[1980] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an application for a writ of prohibition in *R v Cook; ex parte Twigg*. The applicant, Twigg, sought to prohibit the respondent, Cook, a magistrate, from proceeding with a committal hearing against Twigg on charges of conspiracy to defraud. The dispute centred on whether the evidence presented by the prosecution was sufficient to establish a prima facie case against Twigg, thereby justifying a committal for trial.
The central legal issue before the High Court was the standard of proof required at a committal hearing. Specifically, the Court had to determine whether a magistrate, in deciding whether to commit an accused for trial, must be satisfied that there is a prima facie case against the accused, or whether a lower threshold applies, such as whether there is some evidence upon which a jury, properly directed, might convict.
The High Court, by majority, held that the test for committal is whether there is evidence upon which a jury, properly directed, might convict. The Court reasoned that the role of the magistrate at a committal hearing is not to determine guilt or innocence, but rather to ascertain whether there is sufficient evidence to warrant putting the accused on trial. This involves assessing whether the evidence, if uncontradicted and unexplained, could lead a jury to find the accused guilty. The Court rejected the argument that a higher standard, requiring a prima facie case, was necessary, finding that such a standard would usurp the function of the trial jury.
The application for the writ of prohibition was dismissed.