Registrar of The Supreme Court of South Australia v Moore-McQuillan - [2007] SASC 447

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v MOORE-MCQUILLAN
[2007] SASC 447
Judgment of The Honourable Justice Nyland
14 December 2007
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - CONTEMPT COMMITTED IN FACE OF COURT
Contempt of Court - abusive language towards judge in response to unfavourable judgment - whether contempt in the face of the court - consideration of necessary mens rea for contempt. Held: Defendant guilty of contempt.
Workers' Rehabilitation and Compensation Act 1986 s 86A; Supreme Court Civil Rules 2006 Part 3, Rule 4, referred to.
R v Dunbabin & Anor; Ex parte Williams [1935] 53 CR 434; R v Hill [1986] CrimLR 457, applied.
Lewis v His Honour Judge Ogden (1984) 153 CLR 682, distinguished.
Moore-McQuillan v WorkCover Corporation [2007] SASC 55; Moore-McQuillan v WorkCover Corporation [2006] SAWCT 70; Morris & Ors v Crown Office [1970] 2 QB 114; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 445; Parashuram Detaram Shamdasani v King-Emperor (1945) AC 264; Ex parte Bellanto; re Prior [1963] SR (NSW) 190; Ex parte Tuckerman; Re Nash (1970) 3 NSWR 23; Gallagher v Durack [1983] 152 CLR 238; R v Runting (1989) CrAppR 243, discussed.

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v MOORE-MCQUILLAN
[2007] SASC 447
NYLAND J:
Introduction:

On 6 March 2007, the Registrar of the Supreme Court issued a summons requiring the defendant to answer a charge of contempt of court in that he did “on 26 February 2007 at the Supreme Court of South Australia, 1 Gouger Street, Adelaide, in the State of South Australia, whilst the court was in session, and immediately upon it being adjourned, insult and use profane and abusive language to the presiding judge, namely the Honourable Justice Perry”. The summons was made returnable for 5 April 2007. On that date the defendant appeared in answer to the charge but the matter was thereafter adjourned on a number of occasions in part due to the need to facilitate the defendant obtaining legal representation. The summons finally came on for hearing before me on 20 November 2007. At that time, Mr Soetratma appeared as counsel for the Registrar and Mr Hegarty of counsel, appeared for the defendant.
The charge arises out of statements allegedly made by the defendant on 26 February 2007 upon the delivery of judgment and publication of reasons by Perry J in the matter of Markham Wayne Moore-McQuillan v WorkCover Corporation[1]. The judge had heard two applications by the defendant to re-open previous unsuccessful applications to the Supreme Court. The first was by way of an appeal from convictions recorded in the Magistrates Court for obtaining payments or benefits by dishonest means, and the second was by way of an application for leave to appeal from an order of the Workers Compensation Appeal Tribunal, refusing an application for an extension of time to appeal against decisions of review officers as to the defendant’s entitlement to weekly payments. It appears from the reasons of Perry J that the defendant grounded his applications on the footing that there was fresh evidence bearing on both matters. The judge held, however, that there was no fresh evidence disclosed in the material put before the court and no other ground upon which the applications could succeed. Perry J dismissed both applications and published reasons. In the course of those reasons, Perry J referred (at [59]) to “the tortuous passage of the litigation instigated by [the defendant], all dealing with one thing, namely the adequacy of the weekly payments which have been made to him”.
[1] [2007] SASC 55: Exhibit P4
Annexed to the judgment is a copy of the reasons of the Workers Compensation Appeal Tribunal[2] which sets out some of the history of litigation between the defendant and WorkCover arising out of the defendant’s claim for compensation for a left knee injury allegedly suffered on 9 September 1990.
[2] Moore-McQuillan v WorkCover Corportation [2006] SAWCT 70
The statements made by the defendant:
Present in court at the time of the delivery of judgment were Janette Coady, a court reporter, Adam Webster, an associate, and the judge’s tipstaff, Mary Broderick, each of whom has filed an affidavit deposing to the course of proceedings and the words used by the defendant. Mr Hegarty indicated that the defendant consented to the affidavits of each of them being tendered by consent and did not require any of them to be made available for cross-examination.
A copy of the transcript taken by Ms Coady is annexed to her affidavit[3], although she indicates that further things were said by the defendant which are not included in the transcript due to the speed at which the defendant spoke. The transcript records the following interchange between the judge and the defendant:
HIS HONOUR:     In this matter both applications are dismissed with costs. I publish my reasons.
MR MOORE-MCQUILLAN:   Thank you for being an arsehole and thank you for being prejudicial and thank you for being a cunt.
HIS HONOUR:     That’s enough from you.
MR MOORE-MCQUILLAN:   Hope you have a good fucking retirement you stupid fucking idiot. Thank Christ we are getting rid of a fucking cunt like you.
[3]    Affidavit of Janette Irene Coady sworn on 6 March 2007 (Exhibit P1)
Mr Webster confirmed his belief that the transcript accurately reflected what was said by the judge and the defendant[4]. Mr Webster also said that after leaving the bar table and making his way to the exit of the courtroom, the defendant said more by way of abuse to the judge than was recorded in the transcript.
[4] Affidavit of Adam Lyall Webster sworn on 6 March 2007 (Exhibit P2)
Ms Broderick also recalled that the defendant said more by way of abuse to the judge than was recorded in the transcript[5]. In particular she recalled the defendant accusing the judge of being “corrupt”.
[5] Affidavit of Mary Broderick sworn on 6 March 2007 (Exhibit P3)
I am satisfied and find that the words used by the defendant are as set out in the affidavits filed in these proceedings. The issue which now arises for my determination is whether the words used by the defendant, in the circumstances in which they were uttered, amount to a contempt of court.
Contempt in the face of the court:
Supreme Court Civil Rules 2006 Part 3, Rule 4 defines “contempt” to include “a contempt in the face of the court”.
In Morris & Ors v Crown Office[6] Lord Denning MR referred to the phrase “in the face of the court”, and said (at 122):
The phrase ‘contempt in the face of the court’ has a quaint old-fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power.
[6] [1970] 2 QB 114
In that case, a group of young Welsh students had interrupted the proceedings in a libel action in the High Court of Justice by shouting slogans, scattering pamphlets and singing songs. Some of the students subsequently apologised for their behaviour and were fined and bound over to keep the peace, but others refused to apologise, saying that they had acted as a matter of principle on behalf of the Welsh language. The judge sentenced each of them to three months imprisonment for contempt of court. On appeal, the court held that the sentences were not excessive but in view of the special circumstances, including the absence of any violence, dishonesty or bias, they should be released from prison provided they were bound over to be of good behaviour to keep the peace for a period of 12 months.
There has, however, been some debate in subsequent authorities as to the extent to which the term “in the face of the court” extends to conduct which takes place outside of the actual courtroom.
The divergence of views on this topic is helpfully discussed in Registrar, Court of Appeal v Collins[7] a decision of the New South Wales Court of Appeal, wherein Moffitt P said (at 702-703):
The extreme of the possible views as to the meaning of the term on the one hand is that expressed by Laskin J in a dissenting judgment in McKeown v The Queen (1971) 16 DLR (3d) 390, at p 408, that the act must be ‘in its face on the footing that all the circumstances of the alleged contempt are in the personal knowledge of the court’, so no witness is required to give evidence as would be required because ‘of events occurring outside’. This appears to accord with the concept when this was the limit of the summary power to punish contempt by a ‘stranger’.
The other extreme appears to be that expressed by Lord Denning MR in Balogh v St Albans Crown Court [1975] QB 73, at p 84 that the meaning of contempt in the face of the court has to be ‘ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempt for which a judge of his own motion could punish a man on the spot. So contempt in the face of the court is the same thing as contempt which the court can punish of its own motion. It really means contempt in the cognizance of the court’.
[7] [1982] 1 NSWLR 682
In European Asian Bank AG v Wentworth & Ors[8] the New South Wales Court of Appeal further addressed this issue. Kirby P referred to the reasons of policy for confining the jurisdiction and procedures to acts actually seen, heard or otherwise sensed by the court itself. In the present case, however, it is not disputed that the words used by the defendant were uttered within the courtroom and prior to the judge departing therefrom. Whilst acknowledging that the language used to the judge was inappropriate Mr Hegarty submitted that the circumstances in which the words were used fell short of constituting a contempt in the face of the court, as the judge was functus officio. As judgment had been delivered, there was nothing further contemplated before the court. The orders made by the judge were final. All that had occurred was that the defendant had voiced his dissatisfaction with the result of the case. As the matter was final it was not possible for the words used by the defendant to interfere with the course of justice.
[8] (1986) 5 NSWLR 445
In Re Johnson[9] a solicitor attended the hearing of an application before a judge in chambers in the Royal Courts of Justice. Immediately after the hearing and while the parties were on the way from the judge’s room to the entrance gate of the building the defendant made use of grossly abusive expressions and threatening gestures to the solicitor on the other side in relation to that application. The court held that such conduct in relation to proceedings before a judge in chambers was a contempt of court punishable by attachment. Lord Esher MR said (at 71):
Immediately after the parties left the judges room – it seems to me immaterial to consider how near to the door of such room, or in what part of the building it took place – the appellant began to conduct himself disgracefully, and continued such conduct till the parties reached the door of the building. This disgraceful conduct consisted in using violent language of the lowest description to the solicitor opposed to him, for the purpose of insulting such solicitor with reference to the decision just given by the judge at chambers, and the proceedings which had just taken place before such judge. It seems to me that such conduct was, and was intended to be, an insult to the administration of justice.
…
It is not necessary to constitute a contempt of the Court that the contempt should be in court, or that it should be a contempt of a judge sitting in court. All that is necessary is that it should be a contemptuous interference to judicial proceedings in which the judge is acting as a judicial officer.
[9] (1887) 20 QBD 68
And at 73-74:
The judge was acting for the Court judicially and in the administration of justice, and what the appellant did was an insult to the administration of justice. That being so he was liable to be called to account for it, as he was, not before the judge sitting at chambers but before the Court. I do not say that a judge at chambers could for an act of contempt perpetrated before him at chambers himself commit for contempt. I do not decide whether he could or not, though I am inclined to think that he could not. It seems to me quite clear that a person behaving in such a manner as the appellant did, either before the judge or immediately after leaving his chambers, with the intention of casting contempt on the administration of justice, is guilty of a contempt of the Court which is being represented by the judge and can be attached for contempt by such Court. For these reasons I think that the order of the learned judge was rightly made, and that this appeal should be dismissed.
Mr Hegarty, however, referred to the decision of the Privy Council in Parashuram Detaram Shamdasani v King-Emperor[10] to support his argument that, as the matter was final in this case, there was no interference with the course of justice. In Parashuram the court said (at 268):
For words or action used in face of the court, or in the course of proceedings, for they may be used outside the court, to be a contempt, they must be such as would interfere, or tend to interfere, with the course of justice. No further definition can be attempted.
[10] (1945) AC 264
In that case, an unrepresented litigant had been found guilty of contempt for making certain disparaging remarks about opposing counsel and a taxing master of the court. On appeal the court held that the words could not amount to contempt as an insult to counsel or to the opposing litigant was very different from an insult to the court itself. Parashuram was followed by the High Court in Lewis v His Honour Judge Ogden[11] in which counsel in a criminal case had been found guilty of contempt for suggesting in his address to the jury that there was a strong bias by the judge in favour of the prosecution case. The finding of contempt was, however, quashed on appeal. That was upheld by the High Court who described the defendant’s conduct (at p 693) as “extremely discourteous, perhaps offensive, and deserving of rebuke by his Honour but …it could not be said to constitute contempt”. Some care must, however, be taken with this decision as it was primarily concerned with the interpretation of a specific statutory provision of the County Court Act 1985 (Vic) which provided that an offence was committed if a person wilfully, insulted, threatened, interfered or obstructed a judge etc.
[11] (1984) 153 CLR 682
It should also be borne in mind that in Parashuram Lord Goddard further said (at 269):
If in the course of a case a person persists in a line of conduct or use of language in spite of the ruling of the presiding judge he may very properly be adjudged guilty of contempt of court, but then the offence is the disregard of the ruling and setting the court at defiance. So, also, if a litigant or an advocate threatened or attempted violence on his opponent, or conceivably if he used language so outrageous and provocative as to be likely to lead to a brawl in court, the offence could be said to have been committed. An insult to counsel or to the opposing litigant is very different from an insult to the court itself or to members of a jury who form part of the tribunal.
In Ex parte Bellanto; re Prior[12], a barrister appearing for a defendant in a criminal matter took issue with a ruling by the judge as to the admissibility of evidence. He apparently lost his temper and commenced what was described by the judge as a “tirade”. He shouted at and was abusive to the judge. The Full Court of the Supreme Court of New South Wales (Herron ACJ, Sugerman and Ferguson JJ) said (at 199):
‘Contempt of court’, understood as a legal term, principally signifies disrespect for what is entitled to ‘legal regard’. In [its] origin it consisted of an offence against the Sovereign as the fountain of justice or against his royal palace where justice was said to have been dispensed by the King in person. Contempt was considered as an offence because it imputed to him a breach of the coronation oath to ‘administer justice to his people’. …
‘Criminal contempt’ may be defined as contumelious or obstructive behaviour directed against the court and one example this is contempt in the face of the court.
Every contempt is in some respect an obstruction of justice, a sinning against the majesty of the law, and the time-honoured punitive jurisdiction over such offences is now undisputed. Contempt of court has been defined as a disobedience to the court, or an opposing or a despising of the authority, justice or dignity thereof. It commonly consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree of the court. Sometimes it arises by one or more; their opposing or disturbing the execution or service of the process of the court, or using force to the party that serves it; sometimes by using words importing scorn, reproach or diminution of the court, its process, orders, officers, or ministers, upon executing or serving such process or orders. It is also a contempt to abuse the process of the court by wilfully doing any wrong in executing it; or making use of it as a handle to do wrong; or to do anything under colour or pretence of process of the court without such process or authority.
One kind of contempt is, of course, scandalising the court itself.
[12] [1963] SR (NSW) 190
Parashurum was also considered by the New South Wales Court of Appeal in Ex parte Tuckerman; Re Nash[13]. In that case, each of several defendants, as he entered the courtroom, made a gesture by raising his left arm with the hand or fist clenched. The court said (at 27):
The expression ‘interfere with the course of justice’ is not confined to a physical disturbance of particular proceedings in a court which prevents the court from attending to its business according to law; it comprehends as well an interference with the authority of the courts in the sense that there may be a detraction from the influence of judicial decisions and an impairment of confidence and respect in the courts and their judgments.
[13] (1970) 3 NSWR 23
In reaching that conclusion, the court relied on the principles set out by Rich J in R v Dunbabin & Anor; Ex parte Williams[14]. In that case, the High Court considered a charge of contempt arising out of an article in a newspaper which suggested that the court had exercised its ingenuity in order to defeat certain legislation. The defence argued, however, that the article had not suggested the court was functioning in a wrong way, but was more of a satirical comment directed at the Assistant Treasurer and the legislature as opposed to the court. Rich J (with whom Evatt and McTiernan JJ agreed) in upholding the finding of contempt said (at 442-443):
Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained.
Dixon J agreed with Rich J that the article published was a contempt and added (at 447):
It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must, therefore, undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon itself. There is no practicable alternative. It can but do its best to disregard all considerations except those which strictly relate to the question whether the publication amounts in law to a contempt. That question is whether, if permitted and repeated, it will have a tendency to lower the authority of the Court and weaken the spirit of obedience to the law to which Rich J has referred.
[14] [1935] 53 CLR 434

In Gallagher v Durack[15], the secretary of a Trade Union was sentenced to imprisonment for contempt of court by a judge of the Federal Court. His appeal against sentence was later allowed by the Full Court. When the defendant was asked by the press for his reaction to the decision he said (at p 239):
I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that that has been the main reason for the court changing its mind.
[15] [1983] 152 CLR 238
The Federal Court subsequently held that in making that statement, the defendant was guilty of contempt of court and sentenced him to three months imprisonment. On appeal, the High Court (Gibbs CJ, Mason, Wilson and Brennan JJ) cited and applied R v Dunbabin (supra), and said (at p 243):
The authority of the law rest on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.
And (at p 244-245):
… the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence. What was imputed was a grave breach of duty by the court. … One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is however obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered.
There can be no doubt that the offending statement amounted to a contempt of court, and if repeated was calculated to undermine public confidence in the Federal Court. (emphasis added)
I am therefore satisfied that the words uttered by the defendant are capable of amounting to a contempt in the face of the court, notwithstanding that the statements made by the defendant were uttered after judgment had been delivered.
Intention or mens rea:
As part of his submissions, however, Mr Hegarty referred to the defendant’s background which include a complicated family history, as well as a long history of litigation before the courts. Relying on matters arising out of the defendant’s background, Mr Hegarty submitted that there had been no intention on the part of the defendant when making the offending remarks, to do other than to express his frustration as a result of the stress from which he had been suffering for a long period of time. Whilst acknowledging the inappropriateness of the language used by the defendant, Mr Hegarty also submitted it was language that the defendant had been taught by way of communication in his early life to which he naturally reverted when under stress.
These submissions raise the question of the intention or mens rea required to be proved for a finding on contempt in the face of the court. This is a matter not without some difficulty. What is described as “the present uncertainty” on this topic is discussed in Arlidge, Eady and Smith on Contempt, second edition (at p 629 et seq). At para 10-196, the learned authors refer to Lord Lane CJ’s comments in R v Runting[16]:
‘As in all criminal cases, so in contempt of court in these circumstances there are two aspects to be considered: first of all, the act, and secondly the intent with which that act is performed’. He later added that some acts capable of amounting to the actus reus of contempt would also be such that it would be proper to infer from those acts the necessary intent. It is difficult to extract from the authorities the precise nature of the state of mind required. There is some authority which might appear to suggest that, for a contempt in the fact of the court, it is sufficient that the defendant has deliberately or intentionally done an act that in fact results, as judged objectively, in some degree of interference with or disruption of the proceedings of the court.
[16] (1989) 89 CrAppR 243 at 245
At para 10-197 reference is made to the decision in R v Hill[17] in which the defendant was held in contempt after shouting from the public gallery that the judge was biased and a racist. As a result, the defendant was committed to prison for a period of seven days. The point taken on appeal was that there had been no intention to interfere with the due administration of justice, the remarks having been made when the proceedings were adjourned to clear the public gallery. The appeal was dismissed as the court held that the insult deliberately directed at the judge was of a gross and scandalous kind. It was a classic example of contempt (at p 457), “palpably calculated to interfere with the administration of justice”.
[17] [1986] CrimLR 457
At para 10-206, the learned authors conclude:
If mens rea is required, then it is reasonable to conclude that it will be readily inferred in cases where the act in question was ‘palpably calculated to interfere’, as in the case of Hill. Lord Bingham CJ in Att-Gen v Newspaper Publishing Plc adopted the statement of Sir John Donaldson MR in the earlier case of Att-Gen v Newspaper Publishing Plc (one of the Spycatcher cases) that ‘Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct’. Similar were the words of Lloyd LJ to the effect that an intent to interfere with the course of justice might be inferred even though there is no overt proof: ‘The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred’. This is consistent with what Lord Bingham himself had said in Att-Gen v Sport Newspapers Ltd when he suggested that for such an inference to be drawn (in the context at least of publication contempt), it would have to be ‘little short of overwhelming’. An example is provided by Macrae where the judge observed, when a juror had absented himself to post a letter, that he ‘must have’ known this to be a breach of his duty. (citations omitted)
And at 10-207:
The administration of justice would founder if, every time someone felt like making a contribution from the public gallery, the judge was obliged to ignore it or to attempt to enter into a reasoned dialogue with the person concerned. Usually, in such circumstances, it may be sensible to issue a warning, partly in order avoid precipitate action and unnecessary escalation, and partly to ensure that the offender is aware that his conduct is regarded as an interference. If it subsequently becomes necessary to take action it will be less easy in those circumstances to argue that he lacked the necessary mens rea. Often, the warning will be enough in itself to restore order. (citations omitted)
The report of Dr Begg:
In order to consider the issue of the defendant’s intent, it is necessary to have regard to the reports of Dr Jules Begg, a psychiatrist, dated 8 June 2007[18], 3 July 2007[19] and 4 July[20] respectively. They were tendered by the prosecution with the consent of the defence. Dr Begg examined the defendant on 8 June 2007. In his report of the same date, Dr Begg said that the defendant provided the following history about his behaviour in court (at p 3):
He described having verbal outbursts in court. He said he keeps it all together then explodes with the foulest of mouth. He described feeling very bogged down and a (sic) experience of frustration and then a release as he lets go with a verbal tirade. He described the manner in which his verbal outbursts get his point across to the other person much more quickly than his normal reasoned argument. He explained that some of the angry things he has said in court were worthy of remembrance and had made him laugh when he later read the transcript as it was an example of how he could express his feelings in an eloquent manner, something which is not normally able to do.
[18] Exhibit P5
[19] Exhibit P6
[20] Exhibit P7
Dr Begg considered the defendant to be a man of high intelligence who did not fit well into his family of origin. He thought that memory lapses expressed by the defendant were due to the psychological process of disassociation and mentioned that (at p 6):
One of the core problems for the person with a dissociative disorder is affect dysregulation, that is difficulty tolerating and regulating intense emotional experiences.
Dr Begg, however, concluded (p 7):
There is no evidence in my opinion that he does not have capacity to control his verbal outbursts. To use another analogy many crimes have occurred in response to the inability of a person to tolerate strong emotions and the resultant expression of the emotion in a violent or illegal manner.
I also believe it is of concern that [the defendant] has used his dissociative disorder as an excuse for his verbal outbursts within the court.
I did not believe that on 26 February 2007 and other occasions that his conduct was involuntary. I do not believe that he was in a dissociative state during those times. Whilst he does suffer from a mental illness, that is, dissociative fugues. I do not believe that a mental impairment defence would be available to [the defendant] as although he is beset with strong emotions he does have a capacity to appreciate the nature and quality of his actions, the wrongfulness of his actions, and control his actions.
In his addendum report of 4 July 2007[21] Dr Begg said:
In the context of his prolonged court cases there has been a build-up of considerable anger. This has resulted in inappropriate verbal outbursts in court. This goes against his perception of his self-concept as a man of gentle character. By separating the memory (dissociation) of the inappropriate verbal outbursts he is able to preserve his self-concept.
I appreciate the court is in a difficult position as it appears that considerable leeway has been given and accommodation made to ensure the progression of his case in the court. Unfortunately each and every time a verbal outburst occurs, and there is no immediate consequence, [the defendant] learns that such outbursts are without consequence. The likelihood of further outbursts is then increased.
[21] Exhibit P7
The evidence of Richard Balfour:
The prosecution also tendered a report, dated 19 September 2007, of Richard Balfour, a psychologist[22]. Mr Balfour examined the defendant at the request of the defence on 28 August 2007. Mr Balfour also gave evidence before me. At interview, Mr Balfour described the defendant as (at p 2):
… a very angry and agitated individual who portrayed himself as a victim of the legal system. He spoke in a loud and agitated manner. The themes of his speech were predominantly about the legal injustices which had been inflicted upon him by the Workcover system and his history of poor legal representation. There was no clinical evidence to suggest he was thought disorder.
…
[The defendant] was an angry and agitated man who complained of feeling depressed. His main insight into why he has offended was ‘I think its all of the crap I’ve been through, all the wrongs of the court which have gone unheard and allowed to fester’. Rapport was easily established with him. However, he was threatened by my questions designed to improve his insight into the self-destructive nature of his offending behaviour.
[22] Exhibit P8
Thereafter Mr Balfour set out in some detail the defendant’s family, educational, occupational histories and the like, as well as his mental health history. Mr Balfour considered there was no clinical evidence to suggest that the defendant suffered from a psychotic illness, intellectual disability or drug or alcohol problems. He did, however, refer to the defendant’s dysfunctional childhood and considered that the defendant’s present mental health was poor. Mr Balfour believed that a number of factors were responsible for the defendant’s behaviour in court (at pp 14-15):
1.I believe his presentation and personal history are consistent with having a personality disorder of moderate severity characterised by paranoid and narcissistic traits. He has a degree of grandiosity, exaggerated egocentricity, lacks empathy with others, and has a narcissistic sense of entitlement to special treatment. He views the legal system as working in collusion against his best interests. He is paranoid but has not experienced a psychotic break with reality. I do not believe he has an encapsulated paranoid delusional disorder.
2.He suffered a severe work-related injury on the 09/09/1990. He suffers from chronic pain which has made him depressed and irritable. He has been treated with the antidepressant, Endep, for the last two years. I believe he has suffered from a major depressive disorder which has waxed and wane in severity in response to the psychosocial stressors in his life. He has felt increasingly suicidal and hopeless about his legal circumstances. He has experienced a major loss of quality of life.
3.I believe there is evidence from his history he easily forms grudges against others and has intermittent anger management problems. For example, he was 21 years old when he assaulted a school teacher who had assaulted him as a school boy. He was fortunate to be treated by two very experienced and competent psychiatrists but still managed to find fault with their level of care. He has assaulted two Workcover lawyers. He has done extensive training in the martial arts and was an expert in using Japanese weapons.
4.He has a history of unsatisfactory personal experiences with the legal system. He was dissatisfied with his legal representation for his Workcover case. He believes he was “set-up” to commit Workcover fraud. He believes his then lawyer and the Magistrate “conned” him into pleading guilty. He has incurred significant legal expenses and had to declare himself bankrupt. He felt acutely distressed about Justice Perry’s unfavourable ruling. He genuinely believes the majority of the professional staff he has met are incompetent, corrupt, or biased against him.
5.He witnessed the murder of a friend by a snipper (sic). He felt angry that the police allowed his friend to die. He was traumatized by this experience. However, I do not believe he meets all the diagnostic criteria for suffering from Post-Traumatic Stress Disorder (PTSD). He was very dissatisfied with how the police and the legal system treated him despite him being a pivotal witness in the murder trial.
6.He has decided to legally represent himself in court because he believes he cannot afford or find competent lawyers to represent him. Nevertheless, I believe the experience of legally representing himself would be very stressful and intimidating for an individual with no formal legal training. He has no capacity to disengage his emotional investment in his legal case and to examine legal issues at an intellectually rational level. He has a very low tolerance of frustration in court. He projects his anger onto court officials.
7.I note he has been identified as having a left temporal lobe abnormality and suffering from fugue states. Lesions of the amygdala in the temporal lobe can lead to affective disregulation and aggression. However, I do not believe fugue states are responsible for his angry outburst. I believe his abusive tirades and obnoxious conduct in court are very much under conscious control and awareness. During my assessment of him he expressed a lot of anger and animosity towards the legal system. I did not observe him to lapse into a fugue like episode and to become disassociated from his surroundings. Furthermore, I note he was comprehensively neuropsychologically assessed by Mr Mark Reid, an experienced neuropsychologist, who could find no evidence of significant organicity. I believe there is only a low probability of there being an organic basis to his dysfunctional behaviour in the court room.
Mr Balfour concluded that the defendant fitted the diagnostic criteria for being a Querulant of the Vexatious Litigant and Paranoid subtypes as referred to in an article by Paul Mullens and Grant Lester (2006) Vexatious Litigans and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour, Behavioural Science and The Law, (24:33-349).
Mr Balfour considered that the defendant had now lost all rational perspective with regard to the inappropriateness of his behaviour in court and did not see how his behaviour had severely undermined his credibility and legal cause.Mr Balfour thought that the defendant’s querulous behaviour was entrenched and there was “a high probability that he will continue to lose his temper in court and become obnoxious and abusive’. Mr Balfour described the defendant’s behaviour as challenging but believed that there was some hope that he might respond to rehabilitation.
Mr Hegarty cross-examined Mr Balfour at some length as to the influence of a person’s upbringing and experience on the use of language and Mr Balfour said (at 42):
If you’re raised in a family that swears a lot, chances are that you’ll feel quite easy about swearing, but often when you go to school, you learn that there will be problems because people outside the family will get upset with the language.
Mr Balfour further said at (46):
A.[The defendant] has great problems accepting the concept of contempt and I tried to explain it to him in lay definition, basically if in your dealings with the court you’re respectful and courteous, that’s the first part of it, and the second part is that you have to do as the court directs you, they give you an order. He had great problems accepting that and said contempt changes all the time, the definition of it.
Q.    Would [the defendant] have a definition of contempt, would you think.
A.    He says that he does not understand the concept at all.
Q.Would [the defendant] have understood the language he used to have been inappropriate.
A.    Yes, I believe that he does.
Q.    Yet he would have used that language fairly frequently in his life.
A.    He has used it with some of his friends, yes.
Q.    He’s used it for most of his life.
A.    I don’t know, but I know that he does swear, yes.
In re-examination (at 52) Mr Balfour agreed that the defendant understood that using the type of language that appears in the transcript was inappropriate in the circumstances and that the defendant would understand such language was insulting to a judge of the Supreme Court.
The apology of the defendant:
The defendant did not give evidence or call any witnesses on his behalf, but in the course of his address, Mr Hegarty referred to a letter written by the defendant to the Chief Justice dated 1 March 2007[23] in which the defendant said inter alia:
On the 26-2-07 Perry J gave his decision and left and I must admit I gave him a blast, I am sorry for this but it’s more uncontrollable than controllable as I have outlined to you before. I do not like the person I become when I am suffering stress and attending courts but I am forced to do so because of the reluctance of WorkCover to comply with the Act or undertakings given to the courts.
I am apologizing for me (sic) behaviour which is more reactional to the stress and asking for assistance in my quest to have my rights pursuant to the legislation of South Australia that I have been denied.
Please forgive my outburst on 26-2-07.
[23] Exhibit P10

For completeness I mention that the prosecution also tendered a copy of a document addressed to me[24], which is undated, but which bears a facsimile endorsement dated 25 September 2007 from the solicitor then acting for the defendant. In that document the defendant referred to P10 in the following way:
I am sorry this matter and circumstances has progressed to the point that we are at a contempt charge.
I did send the court a letter of apology dated 1-3-07 (see below) and that this was before the temp staffer leaked information to the Advertiser (another situation that will go unpunished as it effects me and the rules are once again broken in support of punishment to me). It is also obvious that my apology was not accepted.
[24] Exhibit P9
The document includes a request for the court to investigate matters relating to the WorkCover matter but includes the comment:
It is easier to say I am paranoid etc when the courts fail to investigate, protect or allow injustice and corruption to continue.
…
DO I have respect for the court the answer would be NO as respect has to be earnt not given and I have yet to see any fairness or effort from the courts to suggest respect should be given. I do have respect for the law but not for the manipulation of it by people who should know and do better. I have witnesses Judges openly lie about talking to other judges about myself which smacks of bias and prejudice. I have watched lawyer and Judges take the high ground and openly manipulate matters against me. I have seen the use of the Sherriff (sic) and Police dept to manipulate circumstances in a court against me. I ask that I be treated fairly but that is a joke as it’s more a behind the closed doors that my matters are solved to me (sic) detriment.
The document concludes with a plea by the defendant that an investigation be conducted into his matters by a -
“… SUITABLE IMPARTIAL LEGAL OFFICER WHO IS NOT PART OF THE COURTS LEGAL OR JUDICY (SIC) SYSTEM SO COMMONSENSE WILL APPLY.
This way at least a solution can be reached and my entitlements be giving (sic) to me instead of the heavy handed method of removing them.
Conclusion:
As earlier indicated, I am satisfied that the statements set out in the transcript annexed to the affidavits of the deponents were uttered by the defendant. I am also satisfied that the defendant referred to Perry J as “corrupt”. I am satisfied that the words used were a contempt in the face of the court notwithstanding that they were uttered after judgment had been delivered. I am satisfied that the defendant was aware of what he was saying and was able to control what he said. The statements were deliberately made by the defendant with the intention to insult, ridicule and to defy the authority of the court simply because the defendant had received a judgment which was not in his favour. To refer to a judge as “corrupt” is an insult of the worst kind, designed to impair “confidence in the courts and their judgments”[25]. I therefore find the defendant guilty of the charge of contempt.
[25] Tuckerman (supra)