R v Moutiaa Elzahed (No 2) - [2018] NSWLC 13

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 2
Category: Principal judgment
Parties: NSW Director of Public Prosecutions (prosecutor)
Moutiaa Elzahed (defendant)
Representation:
Counsel:
D Kell SC with A Mitchelmore (for the prosecution)
D Hulme (for the defendant)
Solicitors:
Crown Solicitor's Office (for the prosecution)
Z Burrows (for the defendant)

File Number(s): 2017/00140056
Publication restriction: Nil

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWLC 13
Decision Date: 04 May 2018

CaseChat Overview and Summary

The appellant Moutiaa Elzahed was found guilty of two counts of disrespectful behaviour in court under section 200A of the District Court Act 1973 (NSW) for failing to stand when the Judge entered and left the courtroom. Elzahed appealed against conviction and sentence, asserting that the provision was invalid as it infringed upon the implied freedom of political communication under the Commonwealth Constitution. The Court of Appeal considered the validity of the legislation and whether the failure to stand constituted disrespectful behaviour.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2
Category:	Principal judgment
Parties:	NSW Director of Public Prosecutions (prosecutor) Moutiaa Elzahed (defendant)
Representation:	Counsel: D Kell SC with A Mitchelmore (for the prosecution) D Hulme (for the defendant) Solicitors: Crown Solicitor's Office (for the prosecution) Z Burrows (for the defendant)
File Number(s):	2017/00140056
Publication restriction:	Nil