Local Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Moutiaa Elzahed (No 2) [2018] NSWLC 13 Hearing dates: 19 - 21 February 2018 Decision date: 04 May 2018 Jurisdiction: Criminal Before: Magistrate Huntsman Decision: The legislation (section 200A of the District Court Act 1973 (NSW)) is valid and the offences are proved beyond reasonable doubt.
Catchwords: CRIMINAL LAW – Particular offences – Miscellaneous offences and matters – Disrespectful behaviour in court - meaning of disrespectful behaviour in court - whether failure to stand for Judge in District Court proceedings is disrespectful behaviour in court according to established court practice and convention - freedom of political communication implied by Commonwealth Constitution - whether effectively burdened - if the freedom is burdened, whether law valid - whether law invalid pursuant to Chapter III of the Commonwealth Constitution - whether law inconsistent and invalid pursuant to section 109 of the Commonwealth Constitution Legislation Cited: Commonwealth of Australia Constitution Act ss 75(iii), 109
District Court Act 1973 (NSW) s 200A
Judiciary Act 1903 (Cth) ss 39(1), 39(2), 75B, 79(1)Cases Cited: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089
Burns v Corbett & Ors [2018] HCA 15
Coleman v Power [2004] HCA 39
Dickson v R (2010) 241 CLR 491
Fardon v Attorney-General (Qld) [2004] HCA 46
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hogan v Hinch [2011] HCA 4
Kable v DPP (NSW) (1996) 189 CLR 51
Lange v Australian Broadcasting Corporation [1997] HCA 25
Levy v the State of Victoria and Ors (1997) 189 CLR 579
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
Monis v R [2011] NSWCCA 231
Monis v R (2013) 249 CLR 92
O’Hair v Wright [1971] SAS R 436
Rizeq v Western Australia [2017] HCA 23
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Wotton v State of Queensland [2012] HCA 2Category: Principal judgment Parties: NSW Director of Public Prosecutions (prosecutor)
Moutiaa Elzahed (defendant)Representation: Counsel:
Solicitors:
D Kell SC with A Mitchelmore (for the prosecution)
D Hulme (for the defendant)
Crown Solicitor's Office (for the prosecution)
Z Burrows (for the defendant)
File Number(s): 2017/00140056 Publication restriction: Nil
Judgment
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Ms Moutiaa Elzahed, the defendant, is charged by court attendance notices with nine offences of disrespectful behaviour in court, contrary to section 200A(1) of the District Court Act 1973. The conduct alleged is that the defendant failed to stand when Judge Balla entered or departed from the court room, during civil proceedings in November and December 2016, in the District Court of New South Wales, to which the defendant was a party. The District Court proceedings were Moutia Elzahed & Ors v Commonwealth of Australia & Anor (Matter No. 2014/305851). The defendant was one of four plaintiffs in those proceedings by which…
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- Case
- [2018] NSWLC 13
- Decision Date
CaseChat Overview and Summary
The key issues were whether the failure to stand for the Judge in the District Court proceedings constituted disrespectful behaviour as per established court practice and convention. Additionally, the court examined if the provision effectively burdened the implied freedom of political communication, and if so, whether the law was valid under Chapter III of the Commonwealth Constitution and section 109 of the Commonwealth Constitution.
The Court of Appeal held that the legislation was valid, and the offences were proved beyond reasonable doubt. The court determined that the failure to stand for the Judge was disrespectful behaviour as it contravened established court practice and convention. The court found that the freedom of political communication was not effectively burdened by the provision, and thus, the legislation was valid. The appeal was dismissed.
No further orders were made as the appeal was dismissed.
Orders
Orders of the court
The legislation (section 200A of the District Court Act 1973 (NSW)) is valid and the offences are proved beyond reasonable doubt.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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