R v Kirsten (a pseudonym)

[2024] NSWDC 401

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Kirsten (a pseudonym) [2024] NSWDC 401

Hearing dates:

5, 6, 7, 8 and 9 August 2024

Date of orders:

9 August 2024

Decision date:

09 August 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Accused — Charged with contempt of court — Detained in custody — To appear via audio visual link until verdict — Convicted of contempt of court — Penalty for contempt — sentenced to imprisonment until the rising of the court

After trial guilty verdict — Detention application granted — Bail refused

After trial guilty verdict — Adjourned for sentence

Catchwords:

CRIME — Child abduction — Contempt of court

CRIMINAL PROCEDURE — Trial — Jury — Self-represented accused

CRIMINAL PROCEDURE — Procedural and other rulings — Contempt of court — Insulting conduct — Summary hearing for contempt — Persistent disobedience — Attempts to disrupt proceedings — Talking over judge and prosecutor — Failure to ask questions — Demeaning questions and comments to witnesses — Penalty for contempt

CRIMINAL PROCEDURE — Persistent contempt of court — Ensuring a fair trial — Sovereign citizen — Refusal to accept jurisdiction of court — Dealing with contempts by accused in a jury trial — Perverting miscarriage — Ensuring continuation of the trial — Ensuring procedural fairness in the face of deliberate and persistent contempt of court

CRIMINAL PROCEDURE — Procedural and other rulings — Refusal of adjournment

MENTAL HEALTH — Criminal proceedings — No question that accused fit to be tried

SENTENCING — Penalties — Contempt — Rising of the court

CRIME — Bail — Detention application — Full-time custodial sentence inevitable

Legislation Cited:

Bail Act 2013 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

District Court Act1973 (NSW)

Evidence Act 1995 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Amagwula v R [2019] NSWCCA 15

Attorney-General v Davis and Weldon (Court of Appeal (NSW), 23 July 1980 unrep)

Bradley v The Crown [2020] QCA 252

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Crofts v The Queen [1996] HCA 22; 186 CLR 427

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Ex parteBeltanto; Re Prior [1963] SR (NSW) 190

Ex parte; Tuckerman Re Nash [1970] 3 NSWR 23

Island Maritime Limited v Filipowski (2006) 226 CLR 328

Kenny v Ritter [2009] SASC 139

Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512

Maher v R [2021] NSWDC 212

Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397

Maric v R (1978) 52 ALJR 631

Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879

Mohareb v Palmer [2017] NSWCA 281

Prothonotary of the Supreme Court v Fajloun [2016] NSWSC 927

Prothonotary of the Supreme Court v Hall [2008] NSWSC 994

Prothonotary of the Supreme Court v Simon Smiley (Supreme Court (NSW), 8 March 2005 unrep)

R v Allan Dennis Pena; R v RY [2007] NSWDC 190

R v Anastasiou(aka Peters) (1991) 21 NSWLR 394

R v Davison (1821) 4 B & Aid 329

R v Zorad (1990) 19 NSWLR 91

Rich v Attorney General (1999) 103 A Crim R 261

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

The Queen v. Apostilides [1984] HCA 38; (1984) 154 CLR 563

Texts Cited:

Judicial Commission of NSW, “Duty of the trial judge”, Criminal Trial Courts Bench Book at [1-810] (Online), 12 August 2024

Category:

Principal judgment

Parties:

Kirsten (a pseudonym) (the accused)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
R Taylor Solicitor Advocate for Public Prosecutions (NSW) (Crown)

Other:
Accused (self-represented)

File Number(s):

2022/373040

Publication restriction:

Pseudonyms have been used for the names of the offender and child witnesses.
Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim or child witnesses. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT

Introduction

Duty of a trial judge where an accused is unrepresented

Judge enters not guilty plea

Consideration

Rulings on evidence and potentially prejudicial evidence

Consideration

Insulting conduct

Consideration

Termination of accused's cross-examination of witness

Consideration

Fitness to be tried

Consideration

A judges' duty to discharge a jury

Consideration

Judge does not take action despite clear contempt of court

Consideration

Adjournment application at close of the Crown case

Consideration – Refusal of adjournment

Proceedings – contempt

Consideration – Dealing with contempt

Contempt particulars

Conviction for contempt

A detention application

Consideration

Conclusion

JUDGMENT

Introduction

1. On Monday 6 August 2024, "Kirsten" (a pseudonym) was arraigned before a jury panel at Wollongong District Court charged with an offence pursuant to s 87 Crimes Act 1900 (NSW):

“That she, on 10 December 2022 at [deleted] did take "Sam" (a pseudonym), a child with the intention of removing the child from the lawful control of the Minister of the Department of Communities and Justice without the consent of the Minister, the Minister then being a person having parental responsibility of the child.”

2. The prosecution case was that Kirsten, as part of a preconceived plan, had taken her 8-year-old child from a care worker during an access visit at a park in Wollongong. She put the child into a recently rented van and then handed the care worker a “Statement and Notice” with her thumb print “for identification”: Exhibit A. It asserted she was “a living being sovereign to this land” who “hereby renounce and reject my former engagement with the courts … and their kronies (sic)… and disregard all orders as null and void”.

3. She drove away with her child unrestrained in the back. Her teenage son, his then girlfriend and the family dog ‘Rambo’ were also in the van; as were her personal possessions and a protest banner. The van was later intercepted by police as it left Sydney, heading North.

4. The child had been taken from Kirsten soon after he was born and placed with a relative. Kirsten contested the legality and authority of later Children’s Court orders placing the child under the lawful control of the Minister.

5. The accused indicated that rather than the name set out in the indictment she would only answer to the name “Kirsten a living woman” or “Kirsten… not her legal fiction name”: Tcpt, 5 August 2024, pp 19 and 42. I indulged her.

6. At earlier call-overs she had advised the Court that she would not be legally represented. At trial she said she was not representing herself but “presenting on behalf of herself as a living woman”: Tcpt, 5 August 2024, p 37. I indulged her.

7. When the charge was read in front of the accused and the jury panel, she refused to enter a plea. She said:

“I need to tell everyone here again in the presence of you jury potentials that I caused this court case, it wasn't the prosecution or the Department or the Court who caused this court case. I'm a living woman, I'm not a legal name, fiction and the matters that bring us here today is partly to address that ongoing problem that in society here of many, many people suffer, we have many, many what we would call unfair cases in every day where children are removed from loving homes on the basis of what's written on a piece of paper where there's not much evidence provided, if any, and where the mums and dads that come in are treated as if they're infants or otherwise incapable of representing themselves.”: Tcpt, 5 August 2024, p 42.

8. I entered a not guilty plea on her behalf. A jury of 12 was empanelled. During the empanelling process the accused loudly questioned the fairness of the ballot as most of the jurors called initially were women. She exercised her three challenges. Three female potential jurors were excused. The solicitor advocate, from the Director of Public Prosecutions appearing for the prosecution, indulged her by challenging another two women. A jury of seven women and five men swore oaths or affirmations that they would give a true verdict according to the evidence.

9. During the course of the next five days of the trial the accused repeatedly interjected, directed personal insults to me and others, harassed witnesses (including her own sons), refused my directions and orders and talked over me excessively. She repeatedly asserted she was:

1. “In control of the proceedings”; and

2. That I was denying her what she called “procedural fairness”.

10. During the course of the 5-day trial, she was cautioned repeatedly that her behaviour was in contempt of court.

11. Although I was initially concerned about her fitness to plead it soon become clear that her disobedience was wilful. This was confirmed when she addressed the jury at the end of the trial: see par [217] below.

12. I soon formed the opinion that Kirsten was deliberately trying to undermine the trial process in order to the secure a discharge of the jury and a delay in hearing the serious allegation made against her by forcing me into heavy handed action that would make presentation of her defence impossible, thus rendering the trial unfair.

13. Accordingly, despite her constant provocations, I indulged her. I also repeatedly asked the jury for their indulgence.

14. By Day 5, after the close of the prosecution case, and after giving her the opportunity to present her case, it became apparent that she was seeking to prevent the trial concluding. I again cautioned her that I had the power to deal with her for contempt of court. I particularised those contempts. I gave her the opportunity to seek legal advice. She continued to abuse me and talk over me, further demonstrating her contempt for the Court and its processes. I charged her with contempt of court and had her taken into custody.

15. I then offered her the opportunity to address the Court from the dock in a respectful manner. She continued with her attempts to disrupt the proceedings. I had her removed from the Court and made orders that she appear via video link from the cells: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BA.

16. The trial proceeded to verdict. She was convicted. I then finalised the contempt proceedings. Kirsten was given an opportunity to defend her actions. Rather than do so she continued with her contemptuous behaviour. I convicted her, but in all the circumstances I felt the only penalty I should impose was that she be held in custody until the rising of the court.

17. Her sentence proceedings were adjourned until 18 December 2024. A prosecution detention application was granted. As a sentence involving full-time imprisonment was inevitable, bail had to be refused. There were no special or exceptional circumstances shown to justify a decision to grant bail: Bail Act 2013 (NSW), s 22B.

18. Kirsten has indicated that she intends to appeal her conviction. Notwithstanding her assertion that the court’s rules and procedures do not apply to her, she has a right to appeal her conviction and assert error in my decisions: Bradley v The Crown [2020] QCA 252; Maher v R [2021] NSWDC 212 at [9].

19. During the course of the hearing, I made a number of procedural rulings and legal determinations. The Court staff who prepared a transcript of these proceedings did a magnificent job but given Kirsten's disruptions, and as she constantly talked over me and others, the transcript is difficult to decipher, some rulings were unable to be completed and others required elaboration.

20. Accordingly, I now set out some of the critical rulings made during the trial and my reasons for making those rulings. It is important that the reasons for those decisions be put into intelligible form so that what was said and done in this Court can be understood and, if necessary, reviewed.

Duty of a trial judge where an accused is unrepresented

21. The NSW Judicial Commission’s Criminal Trial Courts Bench Book succinctly summarises a trial judge's duties when an accused is unrepresented:

“The duty of the trial judge is to give information and advice as is necessary to ensure that the self-represented accused receives a fair trial so that the accused is put in a position where he [or she] is able to make an effective choice as to the exercise of his [or her] rights during the course of the trial, but it is not [the judge's] duty to tell the accused how to exercise those rights: R v Zorad (1990) 19 NSWLR 91 at [99]; R v Anastasiou (aka Peters) (1991) 21 NSWLR 394 at [399]. The trial judge must maintain the appearance of impartiality and should ascertain the level of assistance required by a self-represented accused: Kenny v Ritter [2009] SASC 139 at [23]”: Judicial Commission of NSW, “Duty of the trial judge”, Criminal Trial Courts Bench Book at [1-810] (Online), 12 August 2024 enters not guilty plea

22. Before the jury panel were brought into Court, I attempted to explain the empanelling process. I said, “Then the charge will be read. You can enter a plea or not. If you don't enter a plea--”: Tcpt, 5 August 2024, p 9.

23. The accused talked over me, saying, “We've already done this entering plea business, and I told you I'm not entering guilty or not guilty. That's why we have the jury.”: Tcpt, 5 August 2024, p 9.

24. I replied, "Right. That's fine. Then I will indicate to the jury that the charge has to be proved beyond reasonable doubt.”: Tcpt, 5 August 2024, p 9.

25. The charge was read to her in the presence of the jury panel. Her response is noted at par [7] above. I then told the panel that, as was obvious, she did not accept her guilt. I said:

“Ladies and gentlemen, Ms [Deleted] or Kirsten as she told me she prefers to be known, Kirsten, is a woman who has been charged with a serious offence. She was asked to plead guilty or not guilty. She has obviously not pleaded guilty, so we have to have a trial. We need to choose from your number twelve people who will hear the evidence from the prosecution. They are only allegations, and if they can prove the lawfulness of each of the count read, then a verdict of guilty can be returned. If they cannot prove each important element of the charge, Kirsten or Ms [Deleted] as she is formally charged, will be found not guilty by you.”: Tcpt, 5 August 2024, pp 19-20.

Consideration

26. At the commencement of a trial an accused generally has the charge or charges read to her and is asked to enter a plea of guilty of not guilty: Criminal Procedure Act 1986 (NSW), s 154. If they do not, a procedure exists to ensure the trial proceeds. The history of the practice was set out helpfully by Justice Button in Amagwula v R [2019] NSWCCA 15 at [238]-[250].

27. Section 155 Criminal Procedure Act, specifically allows for what occurred here:

“If an accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of "not guilty" to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded "not guilty".”

Rulings on evidence and potentially prejudicial evidence

28. Before the prosecution commenced their case the solicitor advocate raised a number of procedural matters in the absence of the jury. I had a duty not just to deal with them but also to assist the accused in her responses. This is particularly so where she had a right to object to admission of the proposed evidence: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512.

29. The solicitor advocate explained he wished to edit irrelevant and potentially prejudicial material out of a triple-0 and other recordings. He said he intended to play only the first 18 minutes and 50 seconds of the triple-0 recording. An example was a reference to why her de facto partner was in gaol; another was an allegation that years before she had held her child over a balcony.

30. The accused's response was:

“That's just inconvenient for you to have that revealed. I - I insist that it stays - that bit stays in because the jury needs to see why he's in gaol, but also I will remark on where [name deleted] is heard to say on that transcript about other things.”: Tcpt, 5 August 2024, p 50.

31. She accused the solicitor advocate and me of “ganging up” on her. I responded, “… He's giving you a choice”: Tcpt, 5 August 2024, pp 50-51.

32. She said:

“ … you want it out, I want it in, but also there's another bit in there that I want to make sure is in… and that is where [name deleted] was telling the people on the triple-0 call what she thought was the facts about me and my case, beyond what the father's doing in gaol, she made a statement ... she made a statement - she made a statement prosecution and judge that I held my baby over a balcony, so I would like you to bring forth the evidence of that--”: Tcpt, 5 August 2024, p 51.

33. The solicitor advocate responded, “I'll play the whole thing, your Honour. I'll play the whole thing”: Tcpt, 5 August 2024, p 51.

34. The accused then paused her speaking over him to say, “Thank you very much. That's going to stay in”: Tcpt, 5 August 2024, p 51.

35. She then spoke over me as I attempted to give a brief ruling. I did not get to finish it:

“The prosecution have indicated that they wish to only play the first 18 minutes of the triple-0 call—and Kirsten [Deleted] in response has said that the prosecution's opinion of what is or is not prejudicial is not shared by her, and she wants the lot played. That is her considered decision, and--": Tcpt, 5 August 2024, p 51.

36. The accused made her position clear as the transcript reveals:

“It's a pain in the neck to have to listen to the whole half an hour, but if you're - if you're going to say the last half or whatever because that suits you, prosecution, then it might be wiping out a few other things that I want in, so you know … they have to stay, they have to stay in, I don't trust you prosecution.” : Tcpt, 5 August 2024, pp 51-52.

37. We then moved on to a consideration of the admissibility of telephone calls between the accused and Sam's father recorded at a NSW gaol said to contain admissions. The solicitor advocate indicated he did not intend to play all two hours of the gaol calls as they included personal conversations that did not relate to any matters in issue and were thus, irrelevant. The transcript of all the calls had been served on her but in court he gave Kirsten a list of the gaol calls he proposed to play.

38. She replied that she'd, “… already read - I've already know, seen the transcript”: Tcpt, 5 August 2024, p 52.

39. I sought to explain:

“He doesn't intend to play every single gaol call. So he's giving you a list of the ones you want called. If you want him to play other calls, you can tell him, and he will. Does that make sense to you? Does that make sense to you?": Tcpt, 5 August 2024, p 52.

40. She responded:

“Look you guys you're going to do whatever you want. It's a bit of a pantomime as far as I'm concerned. You've all got your little, you know, ways that you do things--": Tcpt, 5 August 2024, p 52.

41. She told me she was tired, and we adjourned for lunch.

42. Before the triple-0 call was played I said, “My understanding, Ms [Deleted], is that while the prosecutor said he would edit it, you want it all of played; is that right?”: Tcpt, 5 August 2024, p 73.

43. She responded:

“I'll just allow - allow me jury to explain; in your absence the prosecution was trying to work out whether he could knock off a bit of the - the - you know, the - the what do you call it, recording of a document that's sort of half an hour long, and normally … Well, I - I don't think that is irrelevant, so I want you to know--": Tcpt, 5 August 2024, p 73.

44. I said, “Well, I'll allow the playing of the whole of the recording--": Tcpt, 5 August 2024, p 73.

45. After lunch she agreed that Sam's police interview should be before the jury and that he need not be called or examined on her behalf by a court appointed intermediary: Criminal Procedure Act, ss 3, 294A.

46. She also required the prosecution to call evidence that on arrest she was found in possession of cannabis; despite me telling her I would exclude it from evidence: Tcpt, 5 August 2024, pp 55-59.

47. We returned to the topic of the gaol calls the following day. I ruled that only the calls identified by the Crown would be played to the jury but that to avoid any suggestion there had been a conspiracy to exclude relevant evidence, the transcripts of the remaining call could be tendered: Trial Exhibits U and V.

Consideration

48. A judge can go only so far to prevent an accused prejudicing their own case. A judge can advise but cannot require an accused take advice or prevent them acting contrary to that advice. A judge should however, attempt to ensure that the jury focus on the issues and not on irrelevancies.

49. At the end of Day 3 as the accused spoke over me, I sought to reduce the potential for prejudice:

“Can I just to reinforce two things. I am acutely conscious that we have taken you from your other lives and you should get back to them as soon as possible. I also appreciate that sometimes Kirsten doesn’t listen or doesn’t want to listen. That when I say things, she does the exact opposite. I hope that that has not disturbed you or my insistence that things happen have not disturbed you, but again, I just ask that you continue to focus on the evidence and the material that is relevant to the charge. And you have the formal charge in the indictment and the elements of that charge are set out in it, and I will, when all of the evidence is over, give you a document setting out - breaking that down into what has to be proved beyond reasonable doubt for the prosecution to bring the case and the accused has no obligation to prove her innocence or rebut that case, they have to prove the case beyond reasonable doubt and I’ll keep your focus on that … as she doesn’t - she can’t hear what I’m saying because she won’t stop talking: Tcpt 7 August 2024 p 321.

50. Similar directions were given regularly during the trial: see pars [70], [147] and [166] below.

Insulting conduct

51. At a number of times during the trial and in front of the jury, the accused directed personal insults toward me. For example, “There's a talking parrot in the corner, or the barking dog …”: Tcpt, 9 August 2024, p 444.

52. An insult directed to a judge in open court may amount to a contempt of court as to wilfully insult a judge in the course of proceedings in court necessarily interferes, or tends to interfere, with the course of justice: Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 at [689]; Ex parte; Tuckerman Re Nash [1970] 3 NSWR 23 at [27].

53. The critical question is not how the particular judge feels about the insult, but rather whether the conduct undermines the integrity of the court as an institution and thereby weakens the authority of the court and tends to interfere with the administration of justice: R v Davison (1821) 4 B & Aid 329; Ex parte Beltanto; Re Prior [1963] SR (NSW) 190 at [202]; Rich v Attorney General (1999) 103 A Crim R 261 (Calloway JA) at [55]; Prothonotary of the Supreme Court v Simon Smiley (Supreme Court (NSW), 8 March 2005 unrep); Prothonotary of the Supreme Court v Hall [2008] NSWSC 994; Prothonotary of the Supreme Court v Fajloun [2016] NSWSC 927.

Consideration

54. Judges should not be thin-skinned. We are acutely conscious of how stressful litigation is. We are acutely conscious of the stresses imposed on a person defending themselves. Not everyone has the capacity to control their emotions. Words are sometimes said in the heat of the moment. Words that are immediately regretted.

55. Here the words were used deliberately. They were not regretted. They were intended to distract the court and produce a reaction that might later be seen to be biased against the accused or undermine the perception of the impartiality that is fundamental to a fair trial: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

56. I chose not to rise to the ‘bait’. The administration of justice is robust. The insults were both pathetic and bathetic. To respond to them with force or outrage would have added ‘fuel to a fire’. They did not undermine the integrity of the court as an institution. The jury saw through them. The laugh they had was on the accused not the Court.

Termination of accused's cross-examination of witness

57. A judge has a duty to assist an unrepresented accused. A judge also has a duty to every witness called in the proceedings. Section 41 Evidence Act 1995 (NSW) provides that:

“The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question")-

(a) is misleading or confusing, or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).”

58. During the course of the trial the accused asked many improper and disallowable questions. She asked them of every witness called, including her teenage son, who she called in her own case. I was forced to either, disallow questions put or inform the witness that they need not be answered. More often than not, given the accused refused to formulate proper questions, I was forced to explain to the witness they did not need to respond to an assertion that was not a question.

59. The Crown's first witness, the case worker who taken the child to a playground for an access visit with the accused and other family members. Kirsten commenced her cross examination by making comments to the witness. I told her, “Questions, not statements”. She responded, “Sorry, I'll - I'll proceed as I see fit to. I haven't seen this lady since then”: Tcpt, 5 August 2024, p 76.

60. I said again, "Questions, not statements”. Tcpt, 5 August 2024, p 76 notes:

“ACCUSED: Okay. I'm leading up to my questions, your Honour. I have a certain etiquette. I haven't seen this lady since 10 December 22.

HIS HONOUR: Questions, not statements.

ACCUSED: We will proceed to the questions, your Honour.”

61. The accused did not ask questions but tried to tell the witness what had occurred in the absence of the jury: Tcpt, 5 August 2024, p 76.

62. Over the next few minutes, I asked the accused to ask a question of the witness 10 times: Tcpt, 5 August 2024, pp 76-80. Twice I directed the witness not to answer. An example should suffice:

“ACCUSED: [Deleted], do you think it was appropriate that the prosecution wanted to get rid of, that the jury wouldn't know is the - the father was in gaol for sex offences or something. He thought that was irrelevant.”: Tcpt, 5 August 2024, p 78.

63. The accused then asked a question:

“ACCUSED: --you're sitting there when you didn't ever know what happened going on the hearsay of who exactly? Who claimed that I held my son over a balcony? Where did you hear that?

WITNESS: I can't comment on that specifically.

ACCUSED: Can't comment. But you were adamant that you could tell the triple-0 people all about how I supposedly held my baby over a balcony, but you can't recall where you heard that? Could it possibly --”: Tcpt, 5 August 2024, p 81.

64. Kirsten did not let her answer the question. Things did not get better. Eventually I said, “If you do not ask a question of the witness, I will ask the witness to leave”. This led to the following exchange:

“ACCUSED: I am trying, your Honour, but you're not behaving yourself.

HIS HONOUR: Please ask a question of the witness.

ACCUSED: Okay, so what do we do from here, guys.

HIS HONOUR: You will ask a question of the witness or I will ask to her leave.

ACCUSED: Excuse me, I don't take orders from you. You're not my boss, okay. You want to have a fair hearing, this is all on transcript. You can be personally liable for - for unfair procedure.”: Tcpt, 5 August 2024, p 88.

65. I persevered. After many attempts to get the accused to ask a relevant question she made this comment to the witness:

“She's supposed to be able to think for herself, except that she's under your jurisdiction and all that, she's an employee, so bring me to your leader, where's the claimant, are you the claimant, prosecution would you like to accept liability or would you like to bring the other claimant.”: Tcpt, 5 August 2024, p 91.

66. I said, “Do you have any proper questions of the witness?”: Tcpt, 5 August 2024, p 91.

67. She responded, “Well, you know, she's not the claimant, she's just the, you know, the one at the bottom--": Tcpt, 5 August 2024, p 91.

68. I said, “If you don't have any more questions, I'll let her go”. The transcript records:

“ACCUSED: --who takes the orders and the hearsay from the management. She doesn't know what the case was about. She just told us. She had belief coming from the manager--

HIS HONOUR: She's answered that question.

ACCUSED: --[Deleted] who also had a belief, and the police had a belief, they all had beliefs that I apparently threatened, initially it was threatened, to throw my child over a balcony when they came to steal him from me--

HIS HONOUR: As you don't have anymore--

ACCUSED: --and then since then it's - it's expanded--

NO RE-EXAMINATION

ACCUSED: --in - in - in her mind--

HIS HONOUR: Ma'am, thank you for--

ACCUSED: --to not just a threat, but also that I held it over out over it.

HIS HONOUR: Thank you for giving your evidence--

ACCUSED: So this is how they embellish their stories, ladies and gentlemen.

HIS HONOUR: You are - you do not have to put up with this. Unfortunately, we do. She has no further questions of you--

ACCUSED: Okay, so this is really fair--

HIS HONOUR: --she wishes to make statements--

ACCUSED: --not, okay.

HIS HONOUR: I will give her the opportunity to make statements, but you should not be subjected to this--

ACCUSED: Just remember if any--

HIS HONOUR: --and you are free to go.": Tcpt, 5 August 2024, pp 90 and 91.

69. I attempted to put on the record that I had excused the witness because the accused was badgering the witness by not taking the opportunity to ask her questions and asking inappropriate questions. As I did so the accused spoke over me. She accused me of interrupting her and making it difficult for her: Tcpt, 5 August 2024, p 93.

70. As this exchange occurred in front of the jury, I urged them not to pre-judge issues because of her behaviour or her rudeness. As I did so the accused spoke over me: Tcpt, 5 August 2024, pp 94-95.

71. Things did not improve over the next three days. The prosecution called as witnesses, the staff from the agency to whom control of the child had been delegated by the Minister, Sam's Aunt who had been his foster mother since birth, the arresting police officer and the Detective Senior Constable in charge of the prosecution.

72. Each witness had to be asked to leave because the accused, rather than ask relevant questions, used their presence in the witness box to make assertions, submissions, and insulting remarks. When a question was actually asked, she repeatedly talked over the answer. Despite my attempts to prevent them, many of her statements were rude and / or belligerent. After giving her the opportunity to ask proper questions, her persistent refusal to do so led, in each case, to the witness being asked to leave.

73. The prosecution also called two of the accused's adult children. Both were advised that they could object to giving evidence in their mother's trial: Evidence Act, s 18. Eventually both had to be asked to leave as Kirsten was refusing to ask them relevant questions. I did, however, indulge her by allowing her to put leading questions and to ask the witness their opinion of her behaviour.

74. The accused also called her teenage son in her case. Again, she sought to elicit through him an opinion about her “defence”. I indulged her by allowing her to ask leading questions but insisted she ask questions, not make statements: Tcpt, 9 August 2024, pp 425 and 426. She refused to do so.

75. When her son did say something, she talked over him: Tcpt, 9 August 2024, p 427. At one point her son said to her, “Just ask the questions, bro”: Tcpt, 9 August 2024, p 430.

76. At another point I told her, “Stop talking so you can listen to your son's answers … He tried to answer, and you talked over him”: Tcpt, 9 August 2024, p 434. She ignored me.

77. I told her, “Don't badger him”: Tcpt, 9 August 2024, p 437. She ignored me.

78. I repeatedly asked the accused to not ask questions that had no relevance to the issues before the jury. I repeatedly disallowed statements that were not relevant or comments about witnesses. I said, not for the first time, “Stop making comments. Ask a relevant question”: Tcpt, 9 August 2024, p 442.

79. The accused then started asking questions about the child witness’ interaction with police in other matters. I said to the jury and the witness:

“Ladies and gentlemen…and [child's name deleted] your mother has been given considerable indulgence … to ask questions about the charges she faced. And all she's done is abuse me and waste your time. I can't allow that question … Mr Crown, it's an abuse of process of the Court … have a duty to stop the child being harassed. Thank you, [child's name deleted] for coming to Court. I'm sorry you have wasted your time.”: Tcpt, 9 August 2024, pp 441-443.

80. The accused spoke over me saying, amongst other things, “Don't listen to this parrot”: Tcpt, 9 August 2024, p 444.

81. After the audio visual link (‘AVL’) link was terminated I continued my judgment. The accused did not stop talking as I did so, accusing me of procedural unfairness. Reconstructing as best I can, this is what I said:

“Mr Crown, submitted the accused was engaged in an abuse of process of the Court and properly raised s 41 Evidence Act. We had reached a stage, given the appearance of the accused's son that I was obliged to stop badgering irrelevant questioning. The accused was given multiple opportunities to ask relevant questions. We wasted a lot of time yesterday and today, bringing [child's name deleted] before the Court. And his distress was evident. He said he didn't want to be here.”: Tcpt, 9 August 2024, pp 443-444.

Consideration

82. An accused has a right to defend themselves. A judge has a duty to ensure that an accused receives a fair trial, but they also have duties to the prosecution and all other participants. A judge cannot allow improper conduct toward any person in court.

83. A judge must do their best to ensure the accused knows and follows the rules and procedures of the court, including the laws relating to presentation and testing of evidence. A judge must ensure those rules and laws are followed. Only then can a trial be fair. A judge can, and should, allow an unrepresented accused considerable leeway and indulgence. But there are limits.

84. A trial must focus on the facts and issues in dispute. A criminal trial should not be allowed to become a forum for airing general grievances. If an accused fails to take advice and flouts the rules, a judge is required to act.

85. During the course of the trial the accused repeatedly accused me of denying her procedural fairness. That term requires a focus on both trial procedure and fairness to all involved in it. Fairness implies even-handedness. A judge must not take sides. A judge must conduct the trial in a way that does not tend to undermine or bolster the defence case or that of the prosecution. An accused must be given a proper opportunity to advance her defence to the charge: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [11].

86. Excessive judicial intervention can lead to an unfair trial. So too can too little intervention. The judicial function carries with it important institutional characteristics or core principles. A judge can:

• Clear up ambiguities.

• Clarify the answers being given.

• Seek to promote the orderly elicitation of the evidence.

87. A judge must not:

• Needlessly interrupt the flow or cross-examine witnesses, especially not during evidence-in-chief.

• Appear hostile to witnesses, least of all the defendant.

• Belittle or denigrate a party's case.

• Be sarcastic or snide.

• Comment on the evidence while it is being given.

• Make obvious to all their own profound disbelief in the case being advanced: Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [31] and [34] cited with approval in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [16] and [17].

88. With each witness a point was soon reached where to continue to allow Kirsten to talk at them became impossible. She refused to question them with a modicum of politeness. When she did ask a question, she did not allow them to respond. My attempts to get her to ask questions were ignored. They allowed her the opportunity to accuse me of interrupting her!

89. A judge’s duty to ensure a fair trial extends to prosecution and defence witnesses alike. Section 41 Evidence Act imposes an important obligation on trial judges.

90. The obligation to give an accused a fair trial does not extend to allowing them to intimidate, badger or unnecessarily harass witnesses. Nor does it extend to allowing them to use the fact a witness is before the court under oath to use their presence as a vehicle to advance their personal agendas, or to engage in personal vendettas or to litigate other grievances, particularly those that have been litigated in earlier proceedings. A judge’s duty requires them to indulge an unrepresented accused and assist them with meeting the requirements of law and trial procedure, but a judge’s duty also requires them to say, “enough is enough”.

Fitness to be tried

91. Some people with a mental health impairment or cognitive impairment, or both, may be unfit to be tried for an offence. If they are unfit or if a question is raised about their fitness provisions exist in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for a proper enquiry to be made into their fitness. If necessary, arrangements can be put in place so that serious allegations can be ventilated at a special hearing. During the course of the 5-day trial, I had occasion to consider whether Kirsten was fit for trial: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36 to 39.

Consideration

92. Despite her constant disruptions, poor behaviour, and requests that evidence most would regard as unfavourable or highly prejudicial be admitted, I concluded Kirsten was fit to conduct the trial on her own behalf.

93. Kirsten demonstrated that:

• She understood the offence, the subject of the proceedings.

• She knew she had the capacity to plead to the charge but chose not to.

• She exercised her right to challenge jurors.

• She understood the nature of the proceedings.

• She could follow the course of the proceedings. She understood what was going to happen, although at times she disingenuously said she did not. Often this was because she was talking over me as I explained them to her, and thus could not hear what I was saying, as I was “interrupting her”.

• She understood the substantial effect of the evidence given.

• She was able to open to the jury and made a defence and an answer to the charge, although, as she was aware, that defence was not available to her.

• She had the capacity to put the defence, or justification, she wanted and was able to put her version of the facts to the Court.

• She constantly made references to her “defences” and made that decision known to the Court: Mental Health and Cognitive Impairment Forensic Provisions Act, s 36.

A judge's duty to discharge a jury

94. A jury should be discharged if to continue with a trial would be unfair: Crofts v The Queen [1996] HCA 22; 186 CLR 427 at [440]. There are no ‘hard and fast’ rules, whether a jury is discharged will depend on:

• The nature of what is said to have given rise to the prejudice: Crofts at [441];

• The seriousness of the occurrence in the context of the contested issues: Crofts at [440];

• The stage at which the mishap occurs: Crofts at [440]; Maric v R (1978) 52 ALJR 631 at [635];

• The deliberateness of the wrongful conduct: Crofts at [440]; Maric at [635]; and

• The likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence.

Consideration

95. Neither the prosecution nor Kirsten applied for a discharge of a jury. Although threats to do so were made. For example:

“HIS HONOUR: Do you have any questions of the witness?

ACCUSED: I am trying to form the questions without your interruptions, your Honour. You’re trying to interrupt.

HIS HONOUR: I am.

ACCUSED: Okay, and that’s not good. That’s not good.

HIS HONOUR: Please. Questions, not statements.

ACCUSED: Okay. Procedural fairness, your Honour. You don’t like me interjecting. I don’t like you interjecting.

HIS HONOUR: Questions, not statements.

ACCUSED: Enough of your interjections, or I call unfair trial. Okay? I’m trying to form my questions to this lady. Okay.”: Tcpt 5 August 2024, p 77.

96. I had formed the opinion that Kirsten was deliberately seeking to provoke a miscarriage of justice by deliberately refusing to obey my directions to ask questions of witnesses and refrain from abuse or the making of statements. I did so because at times she demonstrated her capacity to ask proper questions.

97. At times she took a literal approach to the fact she was on trial; that is, as it was “her” trial she could dictate when we sat and what procedures were to be followed. In that opinion she was mistaken. A judge has a duty to control the proceedings. The accused cannot dictate what is or is not fair. An accused should not, except in the most extreme of cases, be allowed to force a delay or a mistrial by their own misbehaviour.

98. The only unfairness was a result of the accused’s behaviour, and the jury were regularly reminded and instructed to ignore that behaviour and focus on the evidence and the charge that was before them: see pars [49], [70], [147] and [166] below.

Judge does not take action despite clear contempt of court

99. Two of the accused's adult children, were called by the prosecution. For convenience, one gave evidence by AVL. The accused consented to this course. During this evidence an equipment failure meant we had to resort to an audio link on the prosecution instructing solicitor's mobile phone. The accused was given the prosecutor’s phone so she could best cross-examine her son.

100. She refused to ask him questions but rather lead from him opinions supporting her actions.

101. After persisting in attempting to get her to ask a relevant question, I noted:

“Ladies and gentlemen, it’s embarrassing. She’s now having a private conversation with her son on the prosecutor’s phone. … And none of this is relevant. There might - something might pop up that’s relevant.”: Tcpt, 7 August 2024, p 296.

102. The accused said, “Excuse me. Can you hear this, jury? Would you mind if I approach so that you can hear over the judge?”: Tcpt, 7 August 2024, p 297.

103. I responded loudly, “No, no, I don’t want you approaching the jury … If you could put the phone down.”: Tcpt, 7 August 2024, p 297.

104. She refused both directions. She then moved quickly from the bar table toward the jury box. As she did so the closest juror seemed to cringe and look away.

105. I pressed the duress alarm. As I did so I directed the jury, “Leave now. Please leave. Please leave. Please leave.”: Tcpt, 7 August 2024, p 297.

106. My sole court officer immediately escorted the jury from the Court. Sheriffs (and I discovered later armed police) arrived within a minute. The sheriffs secured the accused and eventually she handed over the telephone to them.

107. I noted that, “The record will show that, against the orders of the judge, the accused approached the jury in a way that caused at least one of the jurors to cringe away - I’m not sure if in fear or embarrassment. I cleared the Court.”: Tcpt, 7 August 2024, p 298.

108. She then accused me of making “up a story about someone was cringing away and making presumptions that they can’t handle the truth or something and that it’s [my] fault.” : Tcpt, 7 August 2024, p 298.

109. I arranged for extra security in Court. She tried to leave Court saying she could not be there until the jury returned. I had the sheriffs prevent her leaving. She called the sheriffs “Ninja Turtles” but eventually calmed down: Tcpt, 7 August 2024, p 299.

110. She told me the jury had invited her over because “they smiled”: Tcpt, 7 August 2024, p 301.

111. I responded:

“You created an incident in the Court that was unnecessary, and what - I tried to stop it by letting you questions that were really not relevant to the issues, and you’re entitled to your opinion, and you expressed that opinion in the Court and I allowed that opinion to be given, but there are limits to the questioning.”: Tcpt, 7 August 2024, p 301.

112. As I sought to explain to the witness what had occurred, she accused me of acting unlawfully because the jury were not here, and they should be witnessing my manipulations of the witness.

113. She “ordered” the Court be “vacated” because there was no jury present: Tcpt, 7 August 2024, p 302. I again warned her that if she continued her disruption of the Court that I would order her arrested for contempt of court. I asked her, “Do you promise that you will not approach the jury?” She replied, “I will not - when the jury’s here we will proceed.”: Tcpt 7 August 2024, pp 298-303.

Consideration

114. If the accused was to receive a fair trial, it was important that she be given every opportunity to test the prosecution case and present evidence on her own behalf. As her contempts included persistent disobedience of judicial directions the only remedy available would be to charge her with contempt and hold her in custody until she purged her contempt. Something she was most unlikely to do. She showed so little respect for the Court any promises and undertakings, if given, could not be accepted. The only way I could prevent further contempts was to silence her by putting her in custody and using AVL facilities, but that remedy would have meant she could not present the “defence” she wished to present and could have resulted in an unfair trial. Patience and forbearance were called for.

Adjournment application at close of the Crown case

115. At the end of Day 4 Kirsten said that she had some documents to tender. The solicitor advocate said he had received some links and had been able to access some but not all of them. They were produced and put before me on the Voir Dire so that I could determine their relevance to the trial.

116. At the close of the prosecution case, I said:

“Ladies and gentlemen, that is all of the evidence on which the prosecution will say that you can find the charge before you proved beyond reasonable doubt. An accused person can, if they wish, give evidence on oath or affirmation, but they have no obligation to do so. The right to silence I spoke about earlier continues. An accused person can call or present evidence to you, but they have no obligation to do so.”: Tcpt, 8 August 2024, p 397.

117. As I said this the accused spoke over me:

“I have called for witnesses … And youse ignored it all so far … And you’ve also said that - and it’s your job to … Because I’m representing myself or whatever - presenting myself, that you have to help me, and you haven’t helped me call my witnesses.”: Tcpt, 8 August 2024, p 397.

118. I asked her, “Have you subpoenaed any witnesses?”: Tcpt, 8 August 2024, p 397.

119. She spoke over me. I asked again, “Have you subpoenaed any witnesses?” She said, “Are you talking to me? … Obviously no, because you’ve said‑‑.” I replied, “Well, there’s nothing obvious about it. You have spoken about subpoenas. You’re aware about‑‑”: Tcpt, 8 August 2024, p 397.

120. She interrupted, “Well, why would I ask you to assist me to do so if I - if I’d done it?” I said, “Who would you wish to call as a witness?” : Tcpt, 8 August 2024, p 398.

121. She said, “I’ll have to repeat myself from yesterday and earlier this morning, when I’ve already told you and the Court who I’d like to subpoena, but I can add some more”: Tcpt, 8 August 2024, p 398.

122. I said, “No … No, I’m not going to issue any subpoenas.” I asked to, “put on the record who she would call”. She said, “But we do need to subpoena all the ones that I was going to subpoenaing for the last [Apprehended Violence Order] AVO, which I was denied the right to do so”: Tcpt, 8 August 2024, p 398.

123. I said, “We’re not re-litigating the AVO, so they’re irrelevant”. She said, “The whole point of this case is because the last case had no right of appeal. And when the AVO finally came to a stop and I was no longer legally bound to go nowhere near my son”: Tcpt, 8 August 2024, p 398.

124. I said, “This is not a court of appeal from the AVO or the Children’s Court Orders … I’m not going to allow the Court to be adjourned further for evidence from Ms [Name redacted] …. “Who else? Who else?” She said, “Denying subpoenas and - are you taking personal liability for that, your Honour?”: Tcpt, 8 August 2024, pp 398-399.

125. I said, “Do you want to call your son [child witness] as a witness in these proceedings? Do you want to call your son [child witness] as a witness in these proceedings?”: Tcpt, 8 August 2024, p 399. She then said:

“I’ll - I’ll - I’ll itemise their names. [Child witness]; and [name redacted], who’s the co carer written in the case plan. Ever since 2014, which is Aunty [name redacted]’s so called partner - that’s in dispute - debate, shall we say, because I’ve had inside information from [name redacted] that I think they split up some time ago, and I don’t know that he’s living in the house. But at the last call, it was just [Sam]‑‑": Tcpt, 8 August 2024, p 399.

126. Solicitor advocate then interrupted, “This is personal information about a witness, your Honour.” I said, “She’s being obstructive”: Tcpt, 8 August 2024, p 399.

127. I concluded at Tcpt, 8 August 2024, p 399:

“I’m not going to allow an adjournment to issue subpoenas. That would be - she’s had an opportunity. She’s not taken that opportunity. But the accused has said that she wishes [child witness] to give evidence.”

128. As I did so she spoke over me. She said at Tcpt, 8 August 2024, p 400:

“I have asked - I’ve requested to subpoena [name redacted] and [child witness] and [name redacted], the current principal … Stop. Stop."

129. I made an order that her teenage son who was in custody “be called as a witness in these proceedings and direct that he give evidence via video link”: Tcpt, 8 August 2024, p 400.

130. I tried to explain, “So far as [child witness] is concerned he has certain rights, and I am obliged, as a judge, to explain his rights to him”. She spoke over me, “As you did for [name deleted] and [name deleted]. I - I - I comprehend that”: Tcpt, 8 August 2024, p 402.

131. I said, “Well, I normally do that in the absence of the jury. In fact, some of those rights have to be explained in the absence of the jury”. She said, “You do not have my permission to do that. No”: Tcpt, 8 August 2024, p 402.

132. She spoke over me again and I tried to explain the procedures required by s 128 Evidence Act saying:

“I do not accept at this stage. I need to consider what you had to say. I will not be rushed with my answer. At this stage, I will defer my response, because I still need to consider - it’s only just come to light that you’re even about to potentially allow me to - or help me and assist me to get subpoenas and - and - and - and provide evidence.”: Tcpt, 8 August 2024, p 402.

133. I said, “No, no, I’m not going to help you get any subpoenas, whatsoever”. She said, “At the moment, you haven’t offered me, you know‑‑": Tcpt, 8 August 2024, p 403.

134. I replied, “It’s too late for that … The matter has been in the list for a year. I’m not going to hold the jury any longer”. She said at Tcpt, 8 August 2024, p 404:

“No, it’s never too late. It’s never too late. We’re in the now. We’re in the now … It’s not too late right now to decide, because we haven’t come to the end of the case yet. So‑‑"

135. I said, “Yes, well, I’ve refused the application for you to get time. If you can get the witnesses here‑‑". I asked, “So will you be giving evidence?”: Tcpt, 8 August 2024, p 404.

136. She said, “I have some evidence to put in”. I said, “Right”: Tcpt, 8 August 2024, p 404.

137. She said, “And I’ll put some in by the morning. I’ll do it electronically from my home tonight on my phone, and I can send it by email‑‑”: Tcpt, 8 August 2024, p 404.

138. I said, “I don’t know what you’re talking about”. She then said, “To the Court, and then in the morning it’ll be there - or by tonight it’ll be there”: Tcpt, 8 August 2024, p 404.

139. I said, “Witnesses come into the witness box, and they give evidence, and documents are tendered through the witness. If‑‑": Tcpt, 8 August 2024, p 405.

140. She continued. I said to the jury, “I don’t want to submit you to this, but‑‑-." She then said:

“But maybe we don’t need to worry about that. If I have a document … If there’s any evidence to be presented in - in conjunction with that, I will provide it … I will bring it with me … I’ll make sure we have copies we can hand around.”: Tcpt, 8 August 2024, pp 405-406.

141. I sought to explain to the accused what her rights were. She said, “I know what my rights are. I don’t need you to tell me … I know what my rights are”. I asked, “Are you going to give evidence?” She said, “I am asking for [child witness] to be here, [name redacted], [name redacted], [name redacted], [name redacted] … [name redacted]”: Tcpt, 8 August 2024, p 406.

142. As she spoke over me, I said:

“With the exception of an attempt I am making to put [child witness] before the Court, because I have power to bring him before the Court - I have no power to just pluck someone off the street, and I’m not going to delay the trial further. If subpoenas were issued, then I would determine whether the evidence is relevant … Aware, as I am, of the issues, as have been expressed by the accused and the Crown, none of the other witnesses would be of any relevance to your determination (sic), and you can make - if I’m wrong in that, I’ve already given you a direction about the absence-- … But so far as [child witness] is concerned, I do have a power, I believe, to bring him before the Court. Now, he may wish to give evidence. He may not wish to give evidence. And he may have - he was there, so there are some relevant things, obviously, he might say. But so far as the other witnesses are concerned, if they were subpoenaed, I would deal with them. The accused has been - was charged before the Court, as you’ve heard, by the magistrate in December of 2022. This matter has been before this Court for many months, and no subpoenas were issued. So I’m not going to delay the trial any further. So I’ve given an explanation to the jury and to you.”: Tcpt, 8 August 2024, p 407.

143. The accused responded:

“Objection. Objection … to try and smooth things over so that we don’t have to have a fair trial… Not just [child witness]. We also want [name redacted]. We want [name redacted]. We want [name redacted], [name redacted], [name redacted] … And [name redacted], the original caseworker from the initiating care proceedings, who accompanied [name redacted]--": Tcpt, 8 August 2024, p 408.

144. As the accused spoke over me, including a reference to me as a “master propagandist” at Tcpt, 8 August 2024, p 409, I told the jury:

“It’s my job to ensure only relevant material is put before you. The issues that have arisen in this case are those set out by the indictment. The accused has raised many other issues about the Children’s Court proceedings and the apprehended violence order and the legitimacy of those. The fact that those orders were made is important. The reasons for those orders are not so far as the evidence is concerned. This trial is not about - and despite everything said by the accused about the reason for the AVO or the reason for the orders. And I have sought to keep from you that material, and as you’re aware, rather than obeying my instructions, the accused has made submissions and assertions from the bar table. I’m sorry that that has delayed the proceedings, but I thank you for your patience. If I haven’t heard by about 3 o’clock that [child witness] can be here this afternoon, I’ll adjourn until tomorrow.”: Tcpt, 8 August 2024, pp 408-409.

145. When we resumed, I explained that I couldn’t get the [child witness] here until the following day. This then occurs at Tcpt, 8 August 2024, pp 412-414:

“HIS HONOUR: So, I am making an order that he be available on screen at 10 o’clock tomorrow. Now, that is the limit of my powers. I can’t issue subpoenas. I can issue short service of time, but I am not going to do so for the reasons I have outlined. I hope you heard me when the accused was speaking over me. So, two things. We have got an hour. I am going to ask again whether the accused wishes to give evidence. If she says yes, then she can be sworn or affirmed and give evidence.

If she says no, I will still give her an opportunity until she closes her case tomorrow after [child witness]. The rule is that the accused gives evidence first, but I can bend those roles. So, if she wants the afternoon off, I will give her the afternoon off. … I went upstairs, I looked at the short matters I have got tomorrow and the pile is getting bigger, but they are pretty quick and we should be ready to start at 10 … which will only take about 15 minutes … We are going to have a shorter lunch if at all possible, and if we get to 2.30, I will have to stop. We may be finish the proceedings, but you might be out on verdict by 2.30. Who knows … Now, so far as today is concerned, do you wish to give evidence in this trial, or do you want to defer your decision as to whether you give evidence until tomorrow?

ACCUSED: Well, so long as it’s not going to jeopardise my, you know, rights to have other subpoenas and things that I have requested. You have only mentioned [child witness] so far, and you have made a condition earlier, and are you now sort of lifting that condition?

HIS HONOUR: What are you talking about?

ACCUSED: Well, you were saying earlier before the break that I could only get a witness in like [child witness] or [name redacted] or someone, if - if I first provided some evidence ahead.

HIS HONOUR: Are you capable of listening to anything I just said? Did you listen to anything I just said? I know you were quiet, thank you. I will repeat what I said to the jury. For the reasons I outlined previously, I am not going to adjourn the trial to enable subpoenas to the witnesses you have mentioned to be called in this trial. If subpoenas we to be issued, they could have been done months ago. Nor am I going to give you leave to have short service of any subpoena.

ACCUSED: Objection. Objection.

HIS HONOUR: But I have made arrangements--

ACCUSED: Just because--

HIS HONOUR: --for [child witness]--

ACCUSED: No, no. Just because they could have been done months ago, does not mean that that’s a reason not to do it now. You have made a point of bringing [child witness] in, so why not do the same for [name redacted] at least, and [name redacted], the boy’s father? You are going to be interviewing all the sons, and the mother, and the father.

HIS HONOUR: Ladies and gentlemen, I have no power--

194. General deterrence is important in any sentencing exercise but in circumstances such as this, where a person asserts a claim which has no basis in law and has by their actions done their own case immeasurable harm, the courts can treat even deliberate and persistent contempts with leniency.

195. Maintaining the dignity of the Court and, even more importantly, enabling the proceedings to continue to verdict required drastic action. There had been significant disturbances and interruptions. But an accused should not be allowed to benefit from that action by forcing a discharge of the jury or otherwise delay the hearing of the serious allegations. Nor should an accused dictate proceedings by creating circumstances that might lead to a miscarriage of justice, create an appeal point because of a denial of procedural fairness or otherwise force a new trial.

196. The purpose of that drastic action was to ensure that the disturbance stopped at a point where no claim could be made that the action prevented a fair trial or the presentation of a defence case. I was able to stop the disturbance despite her persisting in disrupting proceedings by her detention.

197. In such peculiar circumstances and the purpose of the contempt proceedings having been achieved I did not believe that any further penalty for the contempt other than her detention was required. Ms [Deleted] did not purge her contempt, she is not likely to, but no more Court time should be spent on this matter.

198. I determined that the only further punishment required was that she be sentenced to the rising of the court. Soon after the Court rose.

A detention application

207. I initially told Ms [deleted] that next available date at Wollongong for sentence was in November 2024. I was not available that day. After my court diary was double checked, this date was changed to 18 December 2024.

208. The prosecution made a detention application noting that s 22B Bail Act 2013 applied to its application. I sought to explain that detention application to Ms [Deleted].

209. I then asked, “Why do you make the application Mr Crown?”: Tcpt, 9 August 2024 (proceedings after conviction), p 1. In short, he submitted that, given the evidence in trial, the degree of planning for the offence, the age of the child who was only eight at the time, and the circumstances of the offence that this was as a fairly serious example of an offence under s 87 Crimes Act. A sentence of full-time imprisonment is inevitable. A copy of Ms [Deleted]’s antecedents was tendered. They revealed that she had never previously served a custodial sentence. And, that she had spent 3 months in custody in relation to this matter.

210. I said:

“Ms [Deleted] there is a law, and as you know I apply the law, that says that if a custodial sentence is the inevitable result of the commission of a crime then I must refuse bail. Do you want to say anything as to why? I’m not taking into account the record--": Tcpt, 9 August 2024 (proceedings after conviction), p 2.

211. What she said was unintelligible:

“I told you I’d waived the fee, I told you I’m the beneficiary and the executor, I waived the fee, all these money things, that’s up to you guys, it’s up to the claimant … Yeah, well anything to do with money I waive anything to do with fees … You’ve done a good job of like training them up to, you know, believe in the jurisdiction that you, you know, get paid by. You done well there judge.”: Tcpt, 9 August 2024 (proceedings after conviction), pp 2-3.

Consideration

212. I noted that no custodial sentence had been imposed on her before. I noted given the verdict of the jury and the seriousness of the charge a custodial sentence of some length would be imposed on her. The Bail Act requires that having reached that conclusion I had no alternative but to grant the detention application.

213. She responded, “That’s what you had to do, you thought. I have my rights of appeal. Supposedly, for what it’s worth”: Tcpt, 9 August 2024 (proceedings after conviction), p 3.

214. I made the detention application in relation to the principal charge: Bail Act 2013, ss 22B, 50. And ordered Ms [Deleted] appear by AVL in this Court for sentence on 18 December 2024: Crimes (Administration of Sentences) Act 1999, s177; s 5BB Evidence (Audio and Audio Visual) Links Act. I advised her that she was entitled to apply for Legal Aid and seek representation. She responded, “Please give me a break. I think you know by now Legal Aid is not my friend”: Tcpt, 9 August 2024 (proceedings after conviction), p 3.

215. The sentence proceedings were adjourned until 18 December 2024. The offender is to appear via video link .

216. As she talked over me, I noted, “ Ms [Deleted], you are capable of behaving-- I urge you to behave on the next occasion”: Tcpt, 9 August 2024 (proceedings after conviction), p 6.

Conclusion

217. When she addressed the jury at the close of the evidence Kirsten said:

“… perhaps the jury will realise that there has been a change of tone here …. This has been all a performance … I admit that I was cheeky as part of the performance because I felt like you guys in your part of your performance were being cheeky to me, and I wanted the jury to see that it truly is a performance.”: Tcpt, 9 August 2024 (Accused’s Address), p 5.

218. Kirsten chose to represent herself. Kirsten chose not to seek advice from lawyers or any guidance from me about her conduct of her trial. She chose not to listen. She chose to obstruct the trial. She chose to proceed on the basis that the laws of New South Wales did not apply to her. She chose to be rude and offensive to the prosecution, witnesses, the judge and the jury. She did so in the presence of her jury. She was fit to be tried. Her actions were deliberate and considered. She was, in all respects, “the maker of her own misfortune”: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [184].

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Amendments

10 September 2024 - Amended typographical errors.

08 October 2024 - Amended redaction error.

Decision last updated: 08 October 2024