R v JPRB

[2017] TASSC 45

[2017] TASSC 45

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 R v JPRB [2017] TASSC 45

PARTIES:  THE QUEEN
  v
  JPRB

FILE NO:  2622/2016
DELIVERED ON:  18 July 2017
DELIVERED AT:  Hobart
HEARING DATE:  23, 30 June, 5 July 2017
JUDGMENT OF:  Tennent J

CATCHWORDS:

Courts and Judges – Contempt – Interference with course of justice and administration of law – Generally – Words used in respect of and gestures towards a juror during an adjournment of a trial – Words and gestures for purpose of interfering with ability of juror to be impartial – Did they amount to contempt?

Deen v Stronghearts Pty Ltd and Burton [1998] TASSC 103; R v Vasiliou [2012] VSC 216, considered.
Aust Dig Courts and Judges [117]

REPRESENTATION:

Counsel:
             Applicant:  P Sherriff
             Respondent:  C Darvell
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Clarke & Gee

Judgment Number:  [2017] TASSC 45
Number of paragraphs:  34

Serial No 45/2017

File No 2622/2016

THE QUEEN v JPRB

REASONS FOR JUDGMENT  TENNENT J

18 July 2017

1. On 28 July 2016, the respondent was appearing as an accused person with four others in a trial in the Launceston Supreme Court. The five accused were charged with a particularly viscous assault on a young female. The victim had given evidence and the Court was hearing closing addresses from counsel. Prior to lunch that day Crown counsel had given a closing address.

2. During the lunch adjournment, a female juror asserted that the respondent threatened her by saying words in her hearing referring to her being a dog, pointing his fingers at her like a gun and saying ,"Bang bang". She returned to the Court and spoke to another member of the jury and then to the foreperson. As a consequence the matter was raised with the presiding judge. His Honour raised it with counsel and there followed a discharge of the jury.

3. The trial judge charged the respondent with contempt, and that matter was adjourned. On 8 September 2016, the Director of Public Prosecutions filed an originating application by which he sought the following orders:

   "1That [JPRB] be committed for contempt of court for threatening a juror on 28 July 2016 and be sentenced for contempt of court.

   2That the costs of and occasioned by this application be paid by the accused person.

   3Such further or other orders as the Court sees fit."

   The particulars of the application were as follows:

   "1The respondent was an accused person on trial in the Supreme Court held in Launceston on an indictment charging him with assault.

   2The trial commenced on Monday, 25 July 2016.

   3On Thursday, 28 July 2016 at approximately 1.40 pm during the luncheon adjournment of the said trial, the respondent, at the Launceston Civic Square, approached Renee Alison Fontana, a juror in the said trial.  Upon approaching her the respondent stated, 'I can see another dog, bang bang', and at the stated time he raised his fingers and made a shooting motion.

   4The intention of the respondent was to threaten the juror.

   5As a result of the above conduct, the jury was discharged without considering a verdict." 

4. As a consequence of the filing of the application, the charge of contempt initially laid by the trial judge was dismissed.

The hearing of the application

1. The hearing commenced on 23 June 2017. At the commencement of the hearing, counsel for the State read into evidence two affidavits, one of Renee Alison Fontana sworn 3 October 2016 and one of John Stephen Lamb sworn 30 September 2016. Ms Fontana was cross-examined. Mr Lamb was not. A statement of agreed facts was also tendered. At the close of the evidence for the applicant, counsel for the respondent sought an order that interrogatories be administered to the respondent. At that point in time, the respondent had not filed any affidavit material or given any evidence.

2. The request relating to interrogatories arose by reference to the Supreme Court Rules 2000 (the Rules), r 940(6). Rule 940 provides for "Other procedure for contempt". Rule 940(6) provides that:

   "On the hearing of the application, the Court may order the respondent to answer on oath within 4 days interrogatories relating to the alleged contempt."

   For reasons not clear, both counsel seemed to think that the ordering of interrogatories at this point in the hearing was required. I declined to order that the respondent answer interrogatories because I could not see any purpose in them. I took the view that, if the respondent wished to put a version of events to the Court, and of course he was not obliged to do so, such version, whether it be by answering interrogatories or simply making an affidavit, would be on oath or affirmation. Either way, it was inevitable that, if one of those courses was taken, counsel for the State would seek to cross-examine the respondent. In those circumstances, counsel for the respondent sought an adjournment to allow her to consider the respondent's position. On the resumed hearing on 30 June 2017, counsel for the respondent read into evidence an affidavit the respondent had affirmed that day and there was no objection to his being cross-examined. Counsel for the respondent did not seek to lead any other evidence and both parties thereafter made submissions.

The evidence

1. The statement of agreed facts was in the following terms:

   "1On Monday 25^th July, 2016, in the Supreme Court of Tasmania, sitting in its Criminal Jurisdiction, in Launceston, Savannah Jade Harwood, Zane Andrew Henderson, [JPRB], Coby Wells and Jay Ashley Whatley were arraigned on an indictment, containing one count of Perverting Justice in relation to Ms Harwood and one count of Assault in relation to Messrs Henderson, [JPRB], Wells and Whatley.

   2All accused entered pleas of 'Not guilty' and a 12 person jury was empanelled.  The jury included, among others, John Stephen Lamb and Renee Alison Fontana.

   3One of the particulars of the Assault, was that the complainant was forced by the accused, to 'eat dog food'.

   4Evidence was presented on the trial throughout the course of the 25^th, 26^th and 27^th July, 2016, in the presence of all accused.  The complainant gave evidence on the 25^th and 26^th July, 2016.

   5The orally presented evidence of all witnesses, was digitally recorded and the court transcribing team produced a transcript of the evidence ('the transcript') heard on the recording and in its printed form, the transcript numbered 270 pages.

   6The transcript records the word 'dog' or 'dogs', as having been used in the course of the evidence, on 34 occasions.

   7On Thursday the 28^th July, 2016, the jury heard closing submissions on behalf of the accused Henderson, [JPRB], Wells and Whatley.

   8The jury was discharged in the post lunch session that afternoon." 

2. As to Ms Fontana, she was the female juror concerned in this matter. She was a juror on the trial of the respondent for allegedly feeding a girl dog food, beating her, putting cigarette butts out on her, tasering her, spraying her with fly spray and doing a number of other things to her. The trial had started on 25 July 2016. On 28 July 2016, that is the fourth day of the trial, Ms Fontana was on her way back to the Court after the lunch break. She was alone near the car parking area at the Charles Street side of Civic Square (the Square) and about to walk across Charles Street. When she looked up to cross the road she saw the respondent walking towards her. He was with a female who Ms Fontana had seen in the court room earlier in the day. The girl was wearing a pink jumper, had multi-coloured hair and was about 19-20 years old.

3. When Ms Fontana first saw the respondent and this girl, she said they were staring at her. They crossed the road and walked towards her. She said they did not change direction to do that but just appeared to be going in the direction they were originally going. She said she tried not to look at them or have any interaction with them. When they were less than two metres away from her, she heard the respondent say, "I can see another dog, bang bang". As he said that, she looked up, and, as the "bang bang" part was said, she said the respondent pointed his fingers at her and made a gun motion with them. Ms Fontana said that the respondent was laughing as he said this. She felt sick to the stomach and was worried and scared for her safety. She ran straight across the road and back to the Court where she spoke to another female jury member. She told her she felt unsettled and worried about "our" safety.

4. She said that as a result the judge was told what she said happened, he spoke to the jury as a whole and then the trial was ended. The jurors were told the trial would have to be run again. Ms Fontana said that, having heard the evidence on the trial, she was scared about what the respondent might be capable of and even threw away a coat she was wearing that day because she thought it might help him recognise her.

5. When Ms Fontana was cross-examined, it was established that she had walked from the St John's Street side of the Square and, facing towards where the Court is in Cameron Street, she was on the right hand side of the Square just before Charles Street. She had walked past the library, the Council chambers and the Aromas coffee van. She believed there had been about 10 people in the Square generally. She had stopped at the coffee van and there were about two other people there at the same time. She was asked if she had seen police officers coming from the police station and she said she did not.

6. Ms Fontana said that when she first saw the respondent, she was on the Square side of Charles Street and he was on the other side and there were two lanes of traffic in between. Where they were crossing was on the Court side of Cameron Street. Ms Fontana said she stopped to give way to cars. She was watching cars so she could cross the road and heard the words, "I see another dog". She looked up and then heard the words, "Bang bang" and saw the gun motion. She was adamant that the respondent was looking at her when he said the words, "Bang bang" and made the gun motion with his hand. She believed the reference to a dog was about her. She could not say if there was anyone behind her. She conceded that the words about the dog were probably said to the respondent's female companion.

7. When Ms Fontana got back to Court she told another female juror about the words used. Subsequent to that there were discussions between jurors, and the trial judge was told that some jurors did not think they could be impartial. It was suggested to Ms Fontana that it was only after the events were discussed with other jurors and the use of the word "dog" was discussed, that she believed the threat was directed at her. She said "yes". However, it was apparent from further questions that she assumed, from the time at which the words were said, that they were about and directed at her, and she felt threatened because of the gesture made by the respondent.

8. John Lamb was the jury foreperson. In his affidavit he said:

   "1I was empanelled as juror in the trial of the abovenamed in the Supreme Court in Launceston.  The case was an assault case that was alleged to have happened in October 2014 at a unit in Ravenswood.  There were five accused.  I was elected foreman of the jury by the other jurors when we were selected on the Monday.

   2By lunch time on Thursday, 28 July 2016 we had heard all the evidence and were partly through the closing addresses.  We had not yet been addressed by the judge.  As a result of the four day trial we knew the accused and what they had been accused of.

   3Court had been adjourned and we were required back at 2.15pm.  I had had lunch with a couple of jurors and returned to the jury room at around 2pm.

   4About five minutes later, fellow juror Renee, I think her surname was Fontana, returned to the jury room.  I could see that Renee was visibly agitated by something. She sat in her seat next to me.

   5Most of the jurors were in the room at this time but about two.  Renee told us all in the room that she had had a run in with one of the accused who had said some derogatory things.  I and another juror asked who it was and Renee replied that it was [JPRB] who was with a person who Renee thought was [JPRB's] girlfriend.  We asked what he said and Renee told us [JPRB] said 'Here comes another dog, bang, bang, while making a pistol silhouette with his fingers.'  We asked where it had happened and she told us it had just happened near the intersection with Charles and Cameron near civic square.  She said she was walking to court while [JPRB] was walking away.  Renee said she was alone at the time and was of the belief the comment was made at her.  Renee was worried for her safety so we as a jury told one of the court officials who came into the jury room.

   6A few minutes later we were called into the court room and were addressed by the judge.  He asked us to return to the jury room and to make a written statement about the incident and another to the fact if we could remain impartial or not.

   7In the jury room I wrote both statements.  A number of women were concerned for their safety and Renee was by this stage crying.  A number of jurors including myself believed that we would find [JPRB] not guilty before this incident.  After hearing of this incident we had doubt about [JPRB's] lack of involvement and innocence.  As a result at least two jurors indicated they would not be impartial towards [JPRB].

   8These statements were passed to the judge and a short time later we were called into the court room and discharged of our duties." 

9. The respondent said in his affidavit:

   "1     I am the Respondent to this Originating Application.

   2      I was born on 15 May 1997 and am 20 years of age.

   3On Monday, 25 July 2016, I pleaded not guilty to one charge of assault and my trial, with other co-accused, began before a jury in the Supreme Court of Tasmania, held in Launceston.

   4On Thursday, 28 July 2016, the Court adjourned for the lunch break at approximately 1.00 pm.  I left the Court, located at Cameron Street, Launceston and walked with my then girlfriend, Tarlia Ann Chugg, to the pub across the road from Village Cinemas on Brisbane Street, Launceston to play the pokies.  Ms Chugg and I left the pub at approximately 1.30 pm and walked back to the Court at Cameron Street.

   5As I was walking towards the Court from the pub, I was playing music on my mobile phone using the loudspeaker.  At this period of time, one of my hobbies was to freestyle rap.  My friends would do it too.  Freestyle rapping is where you make up lyrics to a beat to try and make a rhyme or a story.  While I was walking, I was holding my phone up, approximately 10 cm from my ear with my left hand and rapping aloud to songs I was playing and making rapping hand gestures with my right hand.  The music was loud enough for me to hear it if I held it that close to my head.

   6When Ms Chugg and I arrived at the Court, we decided we wanted to buy a coffee from the Aromas coffee van parked at Civic Square, Launceston.  The coffee van is parked outside the Launceston Police Station in Civic Square which is in the middle of the northern side of the square.  Ms chug and I started to walk along Cameron Street towards Civic Square.  I continued to play the music on my phone and rap as well as talk to Ms Chugg.

   7As Ms Chugg and I approached Civic Square, I noticed that there were a number of people in the square including people standing or walking outside Service Tasmania, at the Aromas coffee van and in the middle of the square.  My guess is that there were 15 to 20 people in the square.  Just as I had crossed the road, I saw a police officer ahead of me at the coffee van area of Civic Square and I started rapping about police officers and pointed my fingers at him in a gun like motion as if I was pulling a trigger.  I rapped the words 'see these dogs around me, band (sic) bang, now they're down see'.  These are lyrics I made up.  I used the word 'dog' because that is a word my friends and I use when we describe police officers.  It is also a word I have heard other rappers use to refer to police officers.

   8Ms Chugg and I continued to walk towards the coffee van, we both bought a coffee and we returned to Court.

   9At no time when I was walking along Cameron Street and towards Civic Square did I see or recognise any jurors.  I did not make the gun motion or rap any words towards any females.  I mad eth emotion towards a male police officer who was walking through the coffee van area of Civic Square." 

   He was then cross-examined.

10. Under cross-examination the respondent told the Court that, during the trial, he sat at the end of the dock closest to the jury box and the juror entry into the court room. He sat through the process of selecting the jury and was asked by his counsel whether he wanted to object to anybody being on the jury and that process took about 25 minutes. The respondent was asked if, throughout the trial up to lunch on the fourth day, he could see the jury in the jury box. He responded that he could see some of them out of the corner of his eye. He agreed he could see the jurors as they walked in and out of the jury box.

11. The respondent was cross-examined as to his statement in par 7 of his affidavit. He said he noticed the people in the Square as he was crossing the road. He believed there were 15 to 20 there.  He agreed that the Aromas coffee van was relatively close to the police station and not in the middle of the Square. He also agreed that, when he first crossed the road into the Square, he could not see the Aromas van but once "you go into the square" you could see it. He then said he saw the police officer he referred to just after he crossed Charles Street.  He said when he saw the police officer, he could also just see the chairs out the front of the van. He agreed that the building on the left as you enter the Square was a big building. It was put to him that it would have blocked his view of the van until he got around that building and he replied, "Well yeah, it depends where you are standing". He said he was just off the footpath, "just coming into" the Square when he saw the officer. He described the police officer at the other end of the Square from where he was. It was to that officer, he said, that the words and gesture were directed.

Discussion

1. The first thing to be determined is what actually occurred. While the respondent did not seem to dispute that he used the words and made the shooting motion alleged, he says he did that after he had crossed Charles Street and was just off the footpath heading into the Square and that he did these things towards a police officer at the other end of the Square. He denied recognising any juror or doing anything in relation to her. It is clear from the evidence of Ms Fontana that what she describes as having occurred is not consistent with what the respondent says occurred.

2. I must be satisfied beyond reasonable doubt as to what occurred.

3. I am satisfied beyond reasonable doubt that:

   -     The words and gesture asserted by Ms Fontana occurred when she and respondent were approximately two metres apart and when Ms Fontana was about to cross Charles Street towards the respondent who was coming towards her.

   -     Prior to that occurring, the respondent had been staring at Ms Fontana and recognised her as a juror on the trial.

   -     The words used and the gesture made were about and directed to Ms Fontana.

4. My reasons for being so satisfied are:

   -     Ms Fontana was not challenged as to where she said the incident occurred or the distance between her and the respondent when the incident happened. At best it was suggested there may have been someone behind her.

   -     The respondent's evidence that he did not recognise any female juror in circumstances where he had been sitting in the dock with the jurors in plain view for three and a half days at that point, had played a part in the selection of the jury and had been able to see the jury as it came in and out of the court room was implausible. That is particularly so given the position of the dock in which he sat in the Court, its height by reference to the rest of the court room and his position in that dock.

   -     The respondent's evidence that he could see the Aromas van when he was on the footpath on the left hand side of the Square just after crossing Charles Street was implausible given his view of that van from that point would have to have been obstructed by the building on his left.

   -     Despite the fact that it was put by the respondent's counsel to Ms Fontana that there may have been someone behind her when she was waiting to cross Charles Street from the Square side, the police officer to whom the respondent said he made the gesture was not, according to him, behind Ms Fontana but was at the other end of the Square.

   -     The use of the word "dog" in the context of a trial where it was alleged the respondent had tried to force a young female to eat dog food because she was a "dog" suggests clearly that that was what was in the respondent's mind and not some general concept of police officers being referred to as dogs and some connection to rapping. This is particularly so given Crown counsel had that morning been closing the Crown case and no doubt making reference to the evidence about the allegations.

   -          Ms Fontana was adamant that, at the time the incident occurred, she felt threatened by the respondent and was scared for her safety. She had been listening for three days to what it was alleged the respondent had done, and such fear in the circumstances was quite reasonable.

1. Ms Fontana went straight to the Court. At that point she did not know what to do. She spoke to another juror and then the foreperson, Mr Lamb.  A security officer was spoken to. The jury was then taken into Court and addressed by the judge. The jurors were asked to return to the jury room and make written statements about what they knew, and to indicate whether they believed they could remain impartial. Once in the jury room, Mr Lamb said Ms Fontana was crying. He said that a number of the jurors believed, prior to the incident, they would find the respondent not guilty, but, after it, they had doubt about it. The statements were provided to the judge and then the jury was discharged.

Did what occurred amount to a contempt of court?

1. Counsel for the State submitted that the actions of the respondent were clearly intended by the respondent as a threat to the juror, and, in those circumstances, a contempt had been committed. He submitted that, even though there was a particular in the application relating to the consequence of the respondent's conduct, that was not a matter which necessarily had to be proved before a contempt could be found.

2. Counsel for the respondent submitted that the Court needed to be satisfied beyond reasonable doubt that the respondent knew Ms Fontana was a juror on his trial. She said he specifically denied that, and, in the circumstances, the Court could not be so satisfied. Counsel also submitted that there was a mental element to the offence of contempt. In support of that contention, counsel referred to Deen v Stronghearts Pty Ltd and Burton [1998] TASSC 103. In that case, the applicant sought to have the respondents punished for contempt by reason of conduct it was asserted was calculated to hinder the due administration of justice. The conduct was the sending of a letter. The letter was sent on letterhead of the respondent company and appeared to have been signed by Mr Burton. The letter was sent to the solicitor for the applicant, the applicant then being the defendant in an action commenced against him by a Dr Freeman. The letter, on the face of it, contained certain threats. Slicer J canvassed some authorities in relation to contempt and then said at 6 under the heading "State of Mind":

   "The conduct must be calculated to impinge in some way on the conduct of a party or (in the case of a witness) on a person associated with the case. The maker of the communication must have directed his or her mind to seeking to have impact on the person to whom the communication is addressed. If that be established, then communication is assessed in the terms dictated by its maker. If the effect of the communication is a real likelihood of dissuasion, then the contempt is made out. It must tend to interfere with the due course of justice (Attorney-General v Sound [1938] Tas SR 143). In the circumstances of this case, it is a reasonable conclusion that the respondent intended the terms of his communication to be made known to the applicant through the solicitors, even though his primary goal was to make complaint about the conduct of the case by those solicitors. It is a reasonable conclusion that he intended his communication to impact upon the applicant."

3. Counsel submitted that by reference to that passage and the analysis of the communication which his Honour thereafter engaged in, the focus needed to be on the nature of the dissuasion, whether the consequence of the attempt to dissuade was within the respondent's province, and whether the words used provided the nexus with the conduct of the proceedings to which it was said it related. Counsel submitted that, in the present case, the dissuasion pleaded was the discharge of the jury. The general interference with the administration of justice was not pleaded. It was submitted that the discharge of the jury was too far removed from the respondent's actions, if of course I found that what he said and did was directed at Ms Fontana, such that he could not have intended that consequence nor was it within his province. The reasons for that were that there were two events which must have occurred before the jury was discharged. Firstly, there was a disclosure of the incident to other jurors, and secondly, there was the exercise of the judge's discretion to discharge.

4. The only submission that counsel for the State made in relation to these submissions was that the contempt alleged in this matter was complete with the assertion that, "The intention of the respondent was to threaten the juror", and that, although pleaded, the assertion as to the result was not a necessary matter for the State to prove.

5. As I have said, I am satisfied beyond reasonable doubt that the respondent knew Ms Fontana was a juror on his trial, and that he said the words asserted intending them to be heard by her and directed the shooting gesture towards her. I am also satisfied given the subject matter of the trial and the words and gesture used that they were intended as a threat to that juror.

6. The administration of justice in our State involves criminal trials with a jury being held to determine the guilt or otherwise of accused persons charged with crimes. As a consequence, the role of a juror is an integral part of our justice system. A juror's role on a trial is to consider the evidence he or she has heard, determine what of that evidence he or she accepts and then determine a verdict in accordance with that evidence. A juror must be impartial, that is a juror is required to undertake their role without being influenced by any personal view they might have about the subject of a trial or an accused. The actions of the respondent were clearly designed, in the context of this particular case, to cause Ms Fontana to be afraid of the respondent. As such, her capacity to act impartially would be affected.

7. I accept that the respondent may not have formed a clear intention, when he did what he did, to have his trial aborted. The absence of proof of that intent does not, in my view, prevent this Court finding that the respondent has committed a contempt.

8. Beach J in R v Vasiliou [2012] VSC 216 dealt at [13]-[20] with the subject "Contempt: the relevant principles" and usefully set out a number of principles. His Honour said (absent footnotes):

   "13 Some of the relevant legal principles concerning contempt of court were recently set out by Whelan J in R v Slaveski (contempt). His Honour said:

   '17 The essence of the offence of contempt of court is conduct which amounts to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice.

   18 Thus, to establish the offence of contempt of court it must be proved beyond reasonable doubt that conduct occurred which constituted an interference with or obstruction to the due administration of justice or which had a tendency to interfere with or obstruct the due administration of justice.

   19 As to intent, proof of intention to interfere with or obstruct the due administration of justice is not an element of the offence. In Attorney-General for New South Wales v Dean, the Court of Appeal (constituted by Gleeson CJ, Kirby P and Priestley JA) made this clear and went on to observe:

   'It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere... '

   20 In Attorney-General for the State of Victoria v Rich Byrne J, in a passage then quoted in the judgment of Winneke P with whom Callaway and Buchanan JJA agreed on the appeal, relevantly said:

   'In cases such as this where an accused addressed the judge on the bench deliberately in terms which are abusive and offensive ...I doubt very much whether this Court should be concerned with an inquiry as to what was the actual purpose of the contemnor...In a case like the present...where the acts themselves tend to interfere with the course of justice, it is sufficient that the court be satisfied that they were performed consciously and voluntarily.'

   14 In Witham v Holloway, McHugh J said:

   'Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts.'

   15 As was submitted by the Crown, the tendency to interfere with the administration of justice is an objective element of the offence of contempt. The requisite tendency has frequently been described as "a real and definite tendency as a matter of practical reality" to interfere with the administration of justice.

   16 In Attorney-General v Times Newspapers, Lord Diplock said:

   'The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of the criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decisions will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.'

   17 In In re Dyce Sombre, The Lord Chancellor, Lord Cottenham said:

   '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.'

   18 In Smith v Lakeman, Stuart VC said:

   '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.'

   19 While an intention to interfere with the due administration of justice is not an essential element of a charge of contempt, proof of such an intention renders the offence more serious.

   20 Finally, the successful interference with the course of justice is not a necessary element of the offence of contempt."

9. Counsel for the respondent submitted that, by reference to the remarks of Slicer J in Deen's case, the "dissuasion" in this case was the discharge of the jury. I do not accept that is correct. The dissuasion in this case was to affect the ability of Ms Fontana to deal with the subject matter of the trial and the question of the respondent's guilt or innocence in an impartial way by threatening her.

10. I am satisfied that the State does not have to prove that the respondent intended to have the trial aborted. His conduct was inherently designed to cause fear in the juror and impact on her role. The contempt is made out.

Outcome

1. The order of the Court is that [JPRB]be committed for contempt of court for threatening a juror on 28 July 2016 and sentenced for contempt of Court

2. I will hear counsel as to sentence and the issue of costs.