R v Trustrum - [2005] TASSC 88

[2005] TASSC 88

CITATION: R v Trustrum [2005] TASSC 88

PARTIES:  R
  v
  TRUSTRUM, Thomas Edward

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M31/2005
DELIVERED ON:  19 September 2005
DELIVERED AT:  Hobart
HEARING DATE:  5 September 2005
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Contempt, attachment and sequestration – Power of court to punish for contempt – In general.

Martin v Trustrum (No 3) [2003] TASSC 80, followed.
Aust Dig Procedure [700]

REPRESENTATION:

Counsel:
             Applicant:  T J Foulds
             Respondent:  In Person
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  In Person

Judgment Number: [2005] TASSC 88
Number of paragraphs: 7

Serial No 88/2005
File No M31/2005

THE QUEEN v THOMAS EDWARD TRUSTRUM

REASONS FOR JUDGMENT SLICER J

19 September 2005

On 3 July 2003, the respondent was found to have committed contempt of court (Martin v Trustrum (No 2) [2003] TASSC 50) and upon that finding "bound over for a period of three years to come up for judgment if called upon to do so" (Martin v Trustrum (No 3) [2003] TASSC 80). At that time the Court advised the respondent that:

"… the conduct deserves a sentence of imprisonment for a period of three months. Repetition of contempt of court during the period of three years will activate that sentence."

The respondent continued with the publication of contemptuous material and on 22 March 2005, was remanded in custody for the breach of the original order.

This application concerns the publication of material following the date of the original finding. The publications relied upon for these proceedings related to the conduct of judicial and former judicial officers, and followed Mr Trustrum's unsuccessful defence of a defamation action. During the discovery process associated with this application, the respondent agreed to the authorship and distribution of some of the documents, and findings here made relate only to that conceded material.

The publications upon which findings are made are:

(1)A document entitled "Hot Topic, Chief Justice Lashes State Government" sent to the New South Wales Registrar of the Federal Court and forwarded to the Registrar of this Court. The particulars of that document, as stated in the application, are:
"(i)to the Registrar of the Federal Court of Australia (NSW Registry) in or about February 2004 allegations that 'the Chief Justice ordered an action against him' to be heard in secret, to protect 'the reputation of lawyer Mrs Martin of the Law Society' and 'banned the media from reporting the case and the public from hearing it', that there were 'many secret hearings of lawyer Martin's case', that 'former Law Society member Underwood' 'awarded lawyer Martin $40,000 damages for hiding my 30 page bound complaint from the Law Society's 10 man "Investigating Committee"' and that 'Judge Piere (sic) Slicer (ex Law Society)' '... would simply place me on probation for three years instead of jailing me (provided I did not tell this story to anyone else', and juxtaposing various allegations of corruption against various persons with a suggestion that the State Government 'sack' the Chief Justice thereby insinuating the Chief Justice was corrupt and could be and deserved to be 'sacked'."

That the respondent knew the tenor of his "article" is shown by the statement contained therein that:
"I can still be fined $5, 000 and jailed for writing this letter, under the orders made by Judge Pierre Slicer (ex Law Society) and Magistrate and Coroner Mrs Shan Tennent (ex Law Society)."
The document contains contemptuous material.

(2)A media release referring to a report to the former Governor of the State, which included:
"(a)a picture of the chief justice attached to a purported 'media release' entitled 'The Very Strange Case of the Frightened Judge', to which was also attached a request to the Attorney‑General to forward same to the Australian Federal Police."

The material does not constitute contempt.
(3)Documents forwarded to South Australia by letter dated 13 April 2004 which alleged that the original contempt of court hearing was a device used by others, and repeated his earlier allegations (Martin v Trustrum (No 2) (supra)) of the Court's conduct of secret trials. The material amounts to contempt of court.
(4)Documents forwarded to the University of Tasmania in July 2004 purporting to be an edition of 400 copies which repeated the earlier claims and added:
(a) "Tasmania's Chief-Justice William Cox
(late Dobson Mitchell & Allport)
pockets $265, 000 a year – but still
helped Law Society predator to
destroy age-pensioner !"
(b)"In view of Gunson's complete failure to ruffle me, far less destroy me, Tasmania's Senior Puisne Judge, PG Underwood, decided to give his old friend Gunson a 'consolation prize' – my home and car (if I did not have $40, 000 cash)."
(c)"Cox was allowing members of the Law Society in (Gunson supporters) but keeping everyone else out."
(d)"Mrs Martin was no doubt still glowing from the fact that the Chief-Justice of Tasmania himself had given her his guarantee (in the Supreme Court earlier that month) that a) the entire case would be held in secret, b) no-one would ever hear about it – and she would walk away with a very large sum of instance cash; at the end."
(e)"102 – 116 Judge PG Underwood holds the 'assessment of damages' in Mrs Martin's secret defamation-case.
Underwood conceals that he has been a mate of Gunson's for almost 30 years and is the Deputy-President of the Defence Force Discipline Appeal Tribunal; a direct link to Gunson's Defence Force role.
Underwood – who is also the President of the Australian Institute of Judicial Administration (it 'trains' judges!) and Chairman of the Tasmanian Symphony Orchestra – claims that he knows nothing about the Martin case as he was only given the documents the day before.
He has often stated at various legal functions that he regards the trial system as obsolete and that he uses his creative talents in judging court-cases.
The 'creative talents' he used in the Martin/Gunson secret defamation case (NO case-management; NO public; NO media; NO jury; no TRIAL) persuaded him to award Janine Marcia Martin $40, 000 damages. Read more about Judge PG Underwood's very unusual creative-talents on the - 126 Gunson – Who had uncannily guaranteed to the Law Society he would WIN the case for Mrs Martin months earlier – now orders the Deputy Registrar of the Supreme Court in Hobart (R J Walker) to make the 700km round trip to Devonport, to seize and sell my three bedroom home and car.
…
There are two Supreme Courts much nearer to Devonport, at Launceston and Burnie, but Gunson needs Deputy Registrar Walker specially to conduct the auction – which is a little-known REVERSE auction.
In a 'reverse auction', you reject the highest bid (say around $100, 000) and accept the lowest bid later, behind locked-doors in a one-man police-station.
That is how the Deputy Registrar of the Supreme Court of Tasmania, R J Walker, sold my home for D J Gunson – for $20, 000 to a friend of the local policeman; in the middle of Tasmanian's first-ever 'property boom', last June.
Flushed with success at his new-found auctioning skills, Walker then rejected a bid of $2, 800 for my car and sold it for $300."

The last particular is of special concern. Judges of this Court might be able to accommodate affronts to integrity and must at least be prepared to accept public criticism because they are afforded judicial power and remain responsible to the community for their decisions. An officer of the Court has little protection and recourse in cases where his or her honesty and integrity is assailed. But corruption by Court officers who are simply carrying out statutory duties resulting from orders of a court is a most serious allegation which affects them personally and brings the court and its administration into disrepute. Once such an allegation is made, it is the responsibility of judges of the court to protect those officers from unwarranted and scurrilous attack. The document as a whole, and the particular extract identified, constitute contempt of court.
(5)Repetition of the material referred to above through letters forwarded to Launceston solicitors and the Magistrates Court in June 2004. The finding made in relation to document (3) is repeated.
(6)Documents forwarded to the Director of Public Prosecutions in December 2004 which included reference to:
(a) "Tasmania's crooked Governor, ex-solicitor WJE Cox, conspired with Law Society's DJ Gunson to destroy age-pensioner"; and
(b) "… the 'mother of all scandals'! Tasmania's Legal Watchdog strips bare how William John Ellis Cox, Tasmania's Governor-in-Waiting, FIXED the JM Martin defamation-case for the Law Society (no media, no public, no juries, no trial – NO WORRIES!)".
These documents had impressed on their face an internet name and address which might cause the recipient to believe they had come from a reputable source.
(7)A purported media release forwarded to the Solicitor-General and the Director of Public Prosecutions, again bearing the domain of a reputable internal source, repeating the allegation that a court officer:
"fraudulently 'auctioned' Mr Trustrum's home for $20, 000 to a mate and threw-in his $6, 000 sedan for $300 – on behalf of the Law Society of Tasmania). Value of the property in 'mainland terms' was $200, 000."
The material was contemptuous.
(8)Documentation forwarded to Southern Cross Television and the Tasmanian Bar Association which included a purported letter to the Mercury newspaper and which repeated the accusation that the former Chief Justice "fixed a court case (as in fixed a race)", conspired to hold the case in secret and used another judge to assess the award of damages.
The material was in contempt of court.

Mr Trustrum has no remorse for his further publications, maintaining his claim that all the material is true. He further claims that lack of necessary papers and documents, in some instances withheld by others, prevents him from establishing the correctness of his claims. Both claims are spurious. I repeat my general observations and conclusions as to his cause and conduct, stated in Martin v Trustrum (No 2) (supra).

During the course of this hearing, Mr Trustrum indicated that he wished to move on with life and had decided to use his energies in a wider sphere. It was not, and remains not, the desire of this Court to heighten his sense of martyrdom. Appropriate criticism of the workings and decisions of the Court are central to our system of governance. But translating grievance into unsubstantiated attacks on officers of the Court, judicial or otherwise, based on claims of personal financial gain or conspiracy to injure a citizen, contrary to the requirements of justice, ought not be tolerated and warrant sanction. Equally important is the attempt to inhibit future contemptuous conduct. I will adopt the course taken in the earlier case. Thomas Edward Trustrum will be bound over for a further period of three years to come up for judgment if called upon. Repetition of his earlier conduct will warrant an increased sanction of six months' imprisonment. Repetition of contempt of court during the period of three years will activate that sentence.

During the course of these proceedings, reference was made by the Director of Public Prosecutions and the respondent to criminal proceedings which related to the publication of contemptuous material. This hearing did not involve reference to, or consideration of, that material. The question arose during the course of a preliminary hearing concerned with discovery and the administration of interrogatories and whether the respondent was required to admit authorship of the publications. I do not know if there has been some concurrence or overlapping of the documents, but draw the attention of the parties to the provisions of the Criminal Code Act 1924, s10, which relevantly states:

"Nothing in this Act shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court'; but no person shall be so punished and also punished under the provisions of the Code for the same act or omission."