Winmar v Bromfield
[2013] WASC 141
•22 APRIL 2013
WINMAR -v- BROMFIELD [2013] WASC 141
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 141 | |
| 22/04/2013 | |||
| Case No: | SJA:1025/2013 | 13 MARCH 2013 | |
| Coram: | HALL J | 13/03/13 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Conviction set aside and acquittal entered | ||
| A | |||
| PDF Version |
| Parties: | TEANNA LINDA WINMAR HIS HONOUR MAGISTRATE R H BROMFIELD |
Catchwords: | Criminal law Contempt of court Whether charge put to appellant Whether appellant given opportunity to defend charge or make submissions Whether appellant given opportunity to apologise or address on penalty Procedural fairness |
Legislation: | Magistrates Court (General) Rules 2005 (WA), r 30, r 31 Magistrates Court Act 2004 (WA), s 15, s 16 |
Case References: | Balanto [1963] SRNSW 200 Castle City Pty Ltd v New Vintage Nominees Pty Ltd [2003] WASCA 30 Coward v Stapleton (1953) 90 CLR 573 Davenport v Vose [2003] WASCA 44 Ex parte Ferandez [1861] 30 LJCP 321 Gliosca v Ninyett (1992) 10 WAR 562 Lewis v Judge Ogden (1984) 153 CLR 682 Macgroarty v Clauson [1989] HCA 34; (1989) 167 CLR 251 Mansell v Mignacca-Randazzo [2013] WASC 66 R v Castro; Skipworth's case [1873] LR 9 QB 219 Zakanovich v Magistrates Court of Victoria at Moorabbin [2011] VSC 141; (2011) 32 VR 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
HIS HONOUR MAGISTRATE R H BROMFIELD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R H BROMFIELD
File No : PE 6204 of 2013
Catchwords:
Criminal law - Contempt of court - Whether charge put to appellant - Whether appellant given opportunity to defend charge or make submissions - Whether appellant given opportunity to apologise or address on penalty - Procedural fairness
(Page 2)
Legislation:
Magistrates Court (General) Rules 2005 (WA), r 30, r 31
Magistrates Court Act 2004 (WA), s 15, s 16
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside and acquittal entered
Category: A
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondent : No appearance
Amicus Curiae : Mr A J Sefton & Ms C A Lakewood
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : No appearance
Amicus Curiae : Attorney General for Western Australia
Case(s) referred to in judgment(s):
Balanto [1963] SRNSW 200
Castle City Pty Ltd v New Vintage Nominees Pty Ltd [2003] WASCA 30
Coward v Stapleton (1953) 90 CLR 573
Davenport v Vose [2003] WASCA 44
Ex parte Ferandez [1861] 30 LJCP 321
Gliosca v Ninyett (1992) 10 WAR 562
Lewis v Judge Ogden (1984) 153 CLR 682
Macgroarty v Clauson [1989] HCA 34; (1989) 167 CLR 251
Mansell v Mignacca-Randazzo [2013] WASC 66
(Page 3)
R v Castro; Skipworth's case [1873] LR 9 QB 219
Zakanovich v Magistrates Court of Victoria at Moorabbin [2011] VSC 141; (2011) 32 VR 216
(Page 4)
- HALL J:
Introduction
1 On 13 March 2013 I allowed this appeal and set aside the appellant's conviction for contempt of court. The following are my reasons for making those orders.
Background
2 The appellant is a 19-year-old single mother. Her children are aged 5 months and 22 months. On 16 January 2013 she was charged with stealing a motor vehicle and driving it recklessly, contrary to s 378(2)(a) of the Criminal Code (WA), failing to stop, contrary to s 53(1)(a) of the Road Traffic Act 1974 (WA) and driving without authority, contrary to s 49(1)(a) of the Road Traffic Act. She was refused bail by the police and appeared in the Magistrates Court on 17 January 2013. On that date a bail application was made on her behalf by duty counsel.
3 The application for bail referred to the fact that she was the mother of two young children and had been visibly distressed when in custody. She was said to have permanent accommodation and to be willing to comply with reporting conditions if necessary.
4 The alleged facts were provided by the prosecutor. They included an allegation that the appellant had run over the foot of a police officer who had called upon her to stop her vehicle. The appellant denied this allegation. She did so on two occasions during the bail application and on the second occasion she interrupted the magistrate. This followed the magistrate stating that bail would be refused. The appellant was clearly upset. However, nothing that she did on this occasion was said to constitute the contempt of court. It is relevant, however, as background.
5 A second bail application was made to the same magistrate on 25 January 2013. The appellant was again represented by duty counsel. Counsel said that he had been given instructions to provide further details to the court. These were that there was to be a funeral of 'a young family member'. Whilst the magistrate did not say so in specific terms, it would appear that he did not accept that this was a material change in circumstances. He then made an order that the appellant be further remanded in custody. The following then occurred:
HIS HONOUR: Teanna Linda Winmar, you will remanded to 1 February in custody.
(Page 5)
- WINMAR, MS: You know what you can do? You can go skin your prick back, you old dog.
HIS HONOUR: I'm not going to tolerate that.
COUNSEL: No.
HIS HONOUR: I'm going to direct that she be brought before the court to be dealt with in accordance with section 16 of the Magistrates Court Act. So her appearance will be in person before myself on 1 February (ts 25/1/13, page 2 - 3).
The contempt proceedings
6 On 25 or 26 January 2013 the magistrate caused a prosecution notice to be prepared containing a charge of contempt of court against the appellant. An arrest warrant was also prepared, though that was unnecessary as the appellant was in custody.
7 The charge contained in the prosecution notice reads as follows:
Under section 16(2) of the Magistrates Court Act 2004; Contempt of Court
Particulars of Contempt: Whilst the Magistrates Court of Western Australia was sitting at 501 Hay Street, Perth you wilfully insulted the Magistrate who was constituting the court and you are now called upon to show cause why you should not be summarily found guilty of contempt of court in accordance with section 15(1)(a)(iii) of the Magistrates Court Act 2004.
8 Clearly the intention of the magistrate was that a copy of the prosecution notice would be served upon the appellant. However, that did not occur. The appellant has filed an affidavit deposing that at no time before or during the court appearances in respect of the alleged contempt of court was she provided with a copy of the written charge or a copy of the arrest warrant.
9 On 4 February 2013 the appellant appeared before the magistrate on the contempt charge. She was represented on this occasion by Mr Tony Hager, a lawyer from the Aboriginal Legal Service. Mr Hager has also filed an affidavit in which he states that he attended court on that day as a duty lawyer and had not been notified of the appearance of the appellant and did not have her file with him at that time. He states that upon arrival at the custody area of the court he was advised by security officers that the appellant was in custody. He states that there were no documents available at the custody area in respect of her matter but that he was told
(Page 6)
- that the appellant had been brought up to appear in respect of a charge of contempt of court.
10 Mr Hager deposes that when he met with the appellant she was not in possession of any paperwork in respect of the charge and said that she was uncertain as to why she was before the court. He told her that she was charged with contempt of court and she instructed him to make an application to adjourn the contempt proceedings to 22 February 2013, on which date she was next due to appear on the other charges. Mr Hager states that at no time was he in possession of or aware of the prosecution notice or the arrest warrant.
11 When the matter was called on Mr Hager made an application to adjourn the proceedings. The following exchange occurred:
HAGER, MR: Your Honour, Hager, I appear for Ms Winmar who's before you. There's one matter, a contempt matter. We seek a remand in the circumstances for further legal advice. I understand it's the first appearance on this matter in court today. It relates to an incident last week before your Honour. Ms Winmar is next before the court on 22 February in relation to other matters for which bail has been refused. But if the matter has to come back before your Honour that is no issue at all.
HIS HONOUR: It wasn't my intention to adjourn and defer this proceeding. It's a matter that ought to be dealt with whilst it's fresh in my mind and hers. You may be seated, thank you.
HAGER, MR: I appreciate that, your Honour, it's just that I'm not in a position to address you in relation to the matter itself. I haven't seen the transcript nor heard the audio.
HIS HONOUR: I will stand the matter down and you can read it yourself.
HAGER, MR: Thank you.
HIS HONOUR: We'll have a short adjournment whilst you do that (ts 4/2/13, page 2).
12 Mr Hager deposes that after the matter was stood down he read a copy of the transcript of the proceedings of 25 January 2013 and then saw the appellant again in the custody area. He read out to the appellant that part of the transcript containing her remarks to the magistrate. The appellant then instructed him that she was sorry for making the remarks and that she wished to plead guilty. Mr Hager then took instructions from the appellant as to matters to be raised in a plea in mitigation.
(Page 7)
13 When the matter was recalled, Mr Hager stated that the appellant intended to plead guilty to the charge. The magistrate then said:
I don't think, as I read the provisions of the Act, that she gets that chance. She is to be dealt with summarily.
14 Consistently with the view expressed by the magistrate, the charge was not put to the appellant and no plea was taken. The magistrate then said:
HIS HONOUR: The court has brought her back before the court, having issued a warrant. I was the one who drafted the warrant. You may have seen it. I perhaps hadn't given as careful thought to it at the time as I have since, but the provision permits a court where there is a contempt of court committed in the face of the court to deal with the person summarily. It doesn't actually contemplate that there's a plea.
You would be aware that of course after a party has been found guilty and punished pursuant to section 16 subsection (6), where there is an apology the court can do certain things in respect of the penalty that it has already entered. That is different from the traditional way in which a party is called upon to show cause why they will not be convicted of the offence. You have had the opportunity to examine the transcript and I think you will readily understand why we're here today. You've had the chance to address your client.
HAGER, MR: Yes, your Honour.
HIS HONOUR: Yes, all right, I will just invite her to stand up. You may be seated for the moment.
HAGER, MR: Thank you.
HIS HONOUR: Ms Teanna Linda Winmar?
WINMAR, MS: Yes, your Honour.
HIS HONOUR: The last occasion you appeared before this court constituted myself, you did so in custody as you now are, and you were represented by counsel who made submissions requesting that the court reconsider its earlier refusal to grant you bail. Towards the end of those submissions you interjected to the court, uttering words that were clearly intended by you to insult the magistrate, myself, as it turns out, who constituted the court at that time. Not surprisingly, in view of the nature of your utterances the court took the view that this was one of those occasions where it was not appropriate for the court to exercise a degree of judicial deafness as the court frequently does where accused such as yourself might be disappointed with the outcome of, for example, a bail application.
(Page 8)
- An example of the court exercising a degree of judicial deafness was on the first occasion that you appeared before the court where you made certain utterances that the court chose, and it is not now of any relevance as to what those utterances might be, not to do anything further about them. It may be the case that as a result of the court not taking any action on the first occasion you were involved in the way in which you behaved in an appalling fashion in a court of law.
The provisions of the Magistrates Court Act make provision that a person is guilty of a contempt of court if while the court is sitting wilfully insults a person constituting the court. The utterances which you and your counsel now have the opportunity to see from the transcript of the recording from Friday week ago clearly show that you did behave in a fashion that insulted the court.
Whilst that may have some personal connotation it's more significant that you were attacking the very dignity of the court itself and it's for that which I now find you summarily guilty of contempt of court. Your utterances were clearly intended to insult the judicial officer with the vulgar language that you used. That conduct of course also exposed others who had the misfortune to be present to hear the way in which you were behaving in a court of law.
It's conduct that cannot and will not be tolerated. I have found you summarily guilty of a contempt of court and this conduct is of such seriousness that the court has concluded that the only appropriate penalty in all the circumstances is a term of imprisonment. A person guilty of a contempt is liable to a fine of not more than $12,000 or imprisonment for not more than 12 months, or both fine and imprisonment. You will be sentenced to serve a period of three months' imprisonment. You may be seated and I'll hear from your counsel.
HAGER, MR: Your Honour, just in relation to the sentence, it's perhaps prudent to bring to your Honour's attention - I understand your Honour has expressed a preliminary view, we need a final view as to the appropriate sentence.
HIS HONOUR: I have imposed the sentence (ts 4/2/12, pages 4 - 5).
15 Notwithstanding that the magistrate had, as he said, imposed sentence, the appellant's counsel then addressed the magistrate in mitigation. He said that the appellant wished to explain the circumstances that led to her outburst. It was said that she acted out of frustration and in circumstances where she was upset about being in custody and separated from her children. She was very sorry about what had occurred and had wished that to be drawn to the attention of the magistrate. It was submitted that the appellant had had a very difficult life, including her father dying when she was aged 10. There had been issues with alcohol,
(Page 9)
- but it was not suggested that she was under the influence of alcohol or any other substances when she was in court on 25 January 2013. She accepted that what she had said to the magistrate on that day was very offensive and she was apologetic for her behaviour.
16 The magistrate then asked:
HIS HONOUR: Did you now wish the opportunity for the purpose of section 16 subsection (6) to address the court?
HAGER MR: That is Ms Winmar?
HIS HONOUR: Yes.
HAGER, MR: I asked Ms Winmar whether she was in a position to apologise to your Honour and she agreed she would, so if your Honour sought that I would expect an apology from Ms Winmar.
HIS HONOUR: It's not a question of the court seeking it, it's a question of affording her the opportunity to do what is contemplated in section 16 subsection (6), and I will give her that opportunity.
HAGER, MR: Thank you, sir.
HIS HONOUR: You can stand up then, thank you, Ms Winmar. What did you wish to say?
WINMAR, MS: Sorry for being a bad-mouth to you, abusing you.
HIS HONOUR: All right, thank you, I'll take that into account. I'll just hear from your counsel. There's nothing further you wish to say?
WINMAR, MS: No (ts 4/2/13, page 5 - 6).
17 I will refer later in these reasons to the relevant statutory provisions. It is sufficient for present purposes to note that s 16(6) of the Magistrates Court Act 2004 (WA) (MCA) provides that if a person who has been punished for contempt apologises to the court, the court may amend or cancel the order imposing punishment. The magistrate treated that as being the only circumstance in which an apology and any mitigation flowing from it would arise for consideration. His Honour then said:
HIS HONOUR: Stand up, Ms Winmar. Having imposed the punishment that the court viewed as warranted as a result of your outburst occurring on the last occasion you were before this court, you have now apologised to the court. The apology is a personal apology from you but of course the court is conscious that it's proffered in the light of the penalty that the court had imposed. Your demeanour today is indicative that you
(Page 10)
- understand the conduct you previously displayed, specifically on 25 January, is entirely inappropriate in any circumstances.
I take into account your apology and, pursuant to section 16 subsection (6) of the Magistrates Court Act, I have concluded that in view of that apology which appears to be genuine and not arising out of the predicament you're in, that it is appropriate to amend the punishment that I had previously announced. In accordance with those provisions of the legislation the punishment that I previously imposed upon you, three months' imprisonment, is amended to two months' imprisonment. You may stand down (ts 4/2/13, pages 6 - 7).
Grounds of appeal
18 The grounds of appeal, as amended, are as follows:
The applicant appeals the conviction on the grounds that:
1. The Magistrate made an error of law in failing to identify, either expressly or by necessary implication, the particular statutory offence of contempt of court charged against the applicant and the elements of what was alleged against her.
2. The Magistrate made an error of law in summarily convicting the appellant of the statutory charge of contempt of court.
The applicant appeals the sentence on the grounds that:
1. The Magistrate made an error of law in failing to allow the applicant to make submissions on sentence.
2. The Magistrate made an error of law in failing to accept and/or take into account the applicant's plea of guilty.
3. The Magistrate made an error of law in failing to take into account relevant mitigating factors, including the age, background and level of education of the applicant, her current personal circumstances and her remorse.
4. The Magistrate made an error of law in imposing a sentence of imprisonment without deciding that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.
5. The sentence was manifestly excessive, in all the circumstances.
19 The magistrate, who was named as the respondent in this appeal, filed a notice that he did not intend to take part and would accept any order made by the court in the appeal, other than as to costs. The
(Page 11)
- Attorney General sought, and was granted, leave to appear by counsel as amicus curiae.
Ground 1 - Was the charge properly identified?
20 Section 16 of the MCA provides for the procedure to be followed in respect of contempts of the Magistrates Court. Where a contempt is alleged to have been committed in the face of the court, as here, s 16(2) provides that the presiding officer may orally, or by issuing a warrant, order the person to be arrested and brought before the court or may issue a summons that requires the person to appear before the court to be dealt with for the contempt.
21 Section 16(3) provides that rules of court may provide for the procedure for dealing with a person who is alleged to have committed contempt. Part 4 of the Magistrates Court (General) Rules 2005 (WA) (MCGR) makes such provision. Rule 30 specifies that warrants or summonses issued under s 16 are to be in the prescribed forms contained in the Criminal Procedure Rules 2000 (WA) sch 1. There is no requirement that an allegation of contempt be in writing or be contained in a prosecution notice. This reflects the fact that in some circumstances an alleged contempt may be dealt with immediately. Where a magistrate decides to deal with an alleged contempt summarily, he or she must, if practicable, orally inform the defendant of the nature and particulars of the alleged contempt: r 31(2) MCGR.
22 Section 15 of the MCA provides for a number of circumstances in which a person will be guilty of contempt of the Magistrates Court. A person is guilty of contempt if, while the court is sitting, he or she wilfully interrupts the proceedings: s 15(1)(a)(i), wilfully misbehaves before the court: s 15(1)(a)(ii) or wilfully insults a person constituting the court: s 15(1)(a)(iii). It is also an offence to wilfully insult or obstruct a person going to a courtroom for the purpose of constituting the court or leaving a courtroom having constituted it: s 15(1)(b). There are a number of other circumstances in which contempt can be committed but it is unnecessary to refer to them for present purposes.
23 While the conduct of the appellant on 25 January 2013 could most readily be characterised as insulting a person constituting the court while the court was sitting, the behaviour could also have fallen under other limbs of s 15. In particular, the appellant could have been charged with interrupting proceedings or misbehaving before the court whilst it was sitting. The elements of each of those offences are different.
(Page 12)
24 The importance of an allegation of contempt being precisely formulated was referred to by the High Court in Macgroarty v Clauson [1989] HCA 34; (1989) 167 CLR 251 [255] - [256]. In that case the appellant, a barrister, had engaged in a heated exchange with the trial judge. Towards the end of that exchange the trial judge had asked the barrister to keep quiet whilst he was speaking and the barrister had refused to do so. The trial judge summarily found the barrister guilty of contempt of court and fined him $100. The power of the trial judge to find the barrister guilty of contempt was derived from s 105 of the District Court Act 1967 (Qld). That section provided that a person was guilty of contempt if, amongst other things, he or she wilfully insulted a judge, wilfully interrupted proceedings or without lawful excuse disobeyed a lawful order or direction of the court at the hearing of any proceedings. The High Court noted that s 105 created a number of specific statutory offences. It was also noted that the inclusion of the word 'wilfully' incorporated a requirement that the relevant act be done with a specific purpose: See Lewis v Judge Ogden (1984) 153 CLR 682, 688.
25 In Macgroarty no attempt was made by the trial judge to identify the particular statutory offence with which the appellant was charged. The refusal by the appellant in that case to stop speaking could arguably have constituted the offence of wilfully insulting the trial judge, wilfully misbehaving in the court or the offence of disobeying, without lawful excuse, a lawful order or direction. The High Court said that where the alleged contempt was a statutory offence it was particularly important to identify the specific statutory offence alleged:
It has long been settled that 'no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him' (In re Pollard; Coward v. Stapleton; Appuhamy v The Queen). When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the 'gist of the accusation' is made clear to the person charged (see Chang Hang Kiu v Piggott; Coward v Stapleton). Where, however, the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge (cf Cotroni v Quebec Police Commission and Brunet) (255 - 256).
(Page 13)
26 The importance of clearly putting a charge of contempt is that it ensures that the person charged knows exactly what is alleged and can make a defence to that charge if they wish to do so. It is not sufficient that the accused person may be fully aware of the facts giving rise to the allegation of contempt, nor does the existence of a power to deal with a contempt summarily obviate the need for the charge to be properly identified. As the High Court said in Macgroarty:
It is possible to discern in the provisions of s. 105, particularly sub-ss. (1) and (5), a legislative intent that the ability of the District Court to deal promptly and effectively with the statutory offences which the section creates should not be unduly impeded by formal procedural requirements. There is, however, nothing in the section which would warrant the conclusion that it was the legislative intent to dispense with the fundamental requirement that a person should not be punished for a statutory offence of contempt of court unless the particular offence charged has been distinctly identified and he has been given an adequate opportunity of answering the charge. Indeed, so much was recognized by this Court in the closing sentence of the joint judgment in Lewis v. Judge Ogden where, notwithstanding that no question of the adequacy of the charge had been raised by the parties, the Court was at pains to point out [28] that, in relation to the comparable provisions of s. 54A(1) of the Victorian County Court Act, 'the charge of contempt should specify the nature of the contempt, i.e., that it consists of a wilful insult to the judge, and identify the alleged insult' (256).
27 In Macgroarty, the High Court said that the failure to identify the particular statutory offence effectively denied the appellant the opportunity to submit that one or other of the elements of that specific offence was not present. For example, that any insult to the trial judge was not wilful or that any refusal to obey a lawful direction was not without lawful excuse.
28 In Coward v Stapleton (1953) 90 CLR 573 the appellant was found guilty of contempt of court arising out of a refusal to answer questions in a public examination under the Bankruptcy Act. The applicable rules required that before finding a person guilty of contempt of court he or she was to be informed of the nature of the contempt with which he or she was charged. The court said:
Even apart from any such express provision, however, it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard; R v Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott. The
(Page 14)
- charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.
Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon. While it is clear enough that a refusal to answer may be inferred from the giving of what purports to be an answer, the power to commit summarily for a refusal so inferred is a power attended by obvious dangers, and extreme caution is required in its exercise. Not only does the charge place the liberty of the individual in jeopardy in proceedings of a summary character which do not surround him with all the safeguards of a jury trial; but the issue whether statements offered as answers not only are false but imply a refusal to answer may well depend upon considerations of degree, which may strike different minds in different ways. The court, especially when it has itself preferred the charge, must be alert to see that it withholds judgment on the issue until it has considered everything which the witness may fairly wish to urge in his defence (579 - 580).
29 In the present case, the magistrate was of the view that the procedure provided for in s 16 of the MCA and in the MCGR did not require that the charge be put to the appellant and a plea taken. In my view, his Honour was wrong in this regard. The fact that the proceedings were summary in nature and all of the relevant facts were known both to the magistrate and to the appellant did not detract from the necessity to ensure that the proceedings were fair. Fairness required that the charge be specifically identified. This included identifying the statutory provision under which the appellant was charged. It also required giving the appellant a fair opportunity to make any defence to the charge. An appropriate way of doing this would have been to put the charge and take a plea upon it.
30 In this case, the magistrate had caused the charge to be reduced to writing. The written charge did identify the provision under which the appellant was charged. However, that charge was never received by the appellant or her lawyer. There is no prohibition on reducing a charge of contempt under s 15 of the MCA to writing and it may well be appropriate to do so: Mansell v Mignacca-Randazzo [2013] WASC 66. However, this does not obviate the requirement to orally advise the accused person of the charge. It is also prudent to take a plea as this ensures that any problem with non-receipt of the written charge (as here) is exposed and overcome.
(Page 15)
31 It was submitted by the Attorney General that no miscarriage of justice arose from the failure to put the charge to the appellant because she had instructed her lawyer that she wished to plead guilty. The difficulty with this submission is that any intention to plead guilty was based upon a mere assumption as to what the nature of the charge was.
32 It is possible that had the appellant received a copy of the written charge and it had been put to her she would have entered a plea of guilty. However, the failure to comply with the 'fundamental requirement' that 'a person should not be punished for a statutory offence of contempt of court unless the particular offence charge has been distinctly identified and (she) has been given an adequate opportunity of answer the charge' (Macgroarty (256)) is such as to be a fatal flaw in these proceedings.
Ground 2 - Should the magistrate have proceeded summarily?
33 As the alleged contempt occurred while the court was sitting it was open to the magistrate under r 31(1) of the MCGR to deal with it summarily 'if satisfied that the alleged contempt should be dealt with immediately because it is an immediate threat to the authority of the court or the integrity of the proceedings'. Whether to proceed summarily is a discretionary power and will depend upon an assessment by the presiding magistrate as to whether the circumstances justify such a course.
34 In this case, the contempt was alleged to be constituted by the insulting words used by the appellant. The insult was made at the end of the proceedings on 25 January 2013 and does not appear to have caused any disruption to them. Insulting words may affect the standing of the court in the eyes of other people if not dealt with promptly. An insult can also be a challenge to the authority of the court or the integrity of the proceedings.
35 In Lewis v Ogden the High Court said that the contempt power is exercised to vindicate the integrity of the court and of its proceedings; it is rarely, if ever, exercised to vindicate the personal dignity of a judge: See also Ex parte Ferandez [1861] 30 LJCP 321, 332; R v Castro; Skipworth's case [1873] LR 9 QB 219, 232; Balanto [1963] SRNSW 200, 202.
36 The High Court also emphasised in Lewis v Ogden that the summary power of punishing for contempt should be used sparingly and only in serious cases. In Davenport v Vose [2003] WASCA 44 Pullin J said:
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- The dignity of an individual judicial officer is of very subordinate importance compared with the dignity of the Court. Judicial officers who have been the subject of insulting remarks should give careful consideration to whether it is worthwhile to take any steps: Stuart v Brown (1996) 17 WAR 525; Lewis v Ogden (supra); and R v Thomas Castro; Skipworth's Case (1873) 9 LRQB 219. [30]
37 It might be thought that there were good reasons not to proceed summarily in this case; or perhaps not proceed with a contempt charge at all. However, it must be recognised that the impact of an insult is best appreciated by the judicial officer concerned. The question on appeal is not whether the appellate court would have acted in the same way but whether the magistrate was wrong to do so. The fact that it may have been open to the magistrate to do nothing or to proceed by way of a reference to the Attorney General does not in itself mean that the decision to proceed summarily was wrong: Mansell v Mignacca-Randazzo [101].
38 However, it became apparent during the hearing of the appeal that the real issue in respect of this ground was not the magistrate's decision to proceed summarily but whether the proceedings that occurred were fair to the appellant. I have dealt with one aspect of fairness in respect of the identification of the charge. The other aspect is whether the appellant was given a fair opportunity to give a defence to the charge.
39 The magistrate appears to have been of the view that because the facts were recent and well-known and because he was dealing with the charge summarily there was no necessity to take a plea from the appellant or to hear from her in her defence. The underlying assumption is that if guilt is, in the view of the presiding judicial officer, undisputable no opportunity to provide a defence needs to be given. Such an assumption cannot, of course, be accepted.
40 The importance of procedural fairness is not diminished by the summary nature of some contempt proceedings. Indeed, the fact that the judicial officer may act both as prosecutor, witness and adjudicator heightens the need to ensure that the proceedings are attended with both the appearance and reality of procedural fairness.
41 I have recently referred to the steps that should be taken to accord an accused procedural fairness when determining a charge of contempt of court in Mansell v Mignacca-Randazzo. See also Zakanovich v Magistrates Court of Victoria at Moorabbin [2011] VSC 141; (2011) 32 VR 216 [41] and Gliosca v Ninyett (1992) 10 WAR 562. These include giving the person an opportunity to give evidence and an opportunity to
(Page 17)
- make submissions both as to liability and penalty. Those things did not occur in this case.
42 The appellant was not given an opportunity to plead to the charge. She was not given an opportunity to put forward a defence to that charge. Her lawyer was not afforded any opportunity to make submissions as to whether she should be found guilty of the charge. Nor was an opportunity afforded to make submissions on penalty before it was imposed.
43 The magistrate may well have been of the view that in the circumstances no reasonable defence could be advanced. Any such conclusion is more appropriately reached after giving the appellant an opportunity to be heard. Even in the case of an insult directed to a sitting judicial officer, it is conceivable that the element of wilfulness can be contested (see, for example, Gliosca v Ninyett). Whether the appellant would have wished to do so in this case cannot be known because any intention of her part to plead guilty was done in ignorance of the specific charge and the elements of it.
44 Another reason why it is important in a contempt proceeding to give the accused person an opportunity to be heard is that it is always possible that the magistrate may reconsider the appropriateness of proceeding with the charge. It is not unusual for participants in court proceedings to become emotional. They may say things in the heat of the moment that they later have cause to regret. Both the judicial officer and anyone observing the proceedings will usually make some allowance for people in these circumstances.
45 In the present case, the appellant was the mother of two very young children and was herself young. The insult occurred immediately following the rejection of a bail application and after being told that she would be further remanded in custody. She had by that stage been in custody for a little over a week and it is clear from the transcript that she was very emotional.
46 If the appellant had been given an opportunity to respond to the charge and had accepted she spoke the insulting words but did so in the heat of the moment and without thinking this, whilst not strictly a defence to the charge, may well have been relevant to whether the magistrate should exercise the discretion not to proceed further with the charge. Any threat to the dignity of the court or to the integrity of the proceedings may be much more effectively ameliorated by permitting a person to explain
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- and express regret for their behaviour than by proceeding to conviction and punishment.
47 The appellant was also denied an opportunity to provide an apology to the court prior to being found guilty. The magistrate appears to have been of the view that s 16(6) of the MCA effectively provided the only opportunity for a person charged with contempt to provide an apology to the court. He contrasted the common law requirement to show cause why a finding of contempt should not be made with the summary nature of the proceedings and the opportunity for the court to amend a sentence if an apology was given. He inferred from this that it was not intended that in cases like this there would be any opportunity to make an apology or make submissions in mitigation until after a sentence was imposed. With respect, that cannot be correct.
48 Section 16(6) provides an additional power to the court to mitigate a penalty previously imposed where a person convicted of contempt subsequently apologises. That does not mean that that is the only opportunity that a person has to apologise for their contempt. Indeed, it will always be a relevant consideration, both to whether to proceed to conviction and as to any penalty, that a person has offered an apology at an early stage.
49 The way in which these proceedings were conducted not only deprived the appellant of an opportunity to put on a defence, she was also deprived of the opportunity to make any submissions in mitigation through her lawyer before a penalty was imposed. The magistrate imposed a sentence of 3 months' imprisonment before hearing whether the appellant accepted responsibility for her insulting words, was apologetic for them or anything regarding her personal circumstances relevant to the offence. It is a requirement of procedural fairness that a person found guilty of contempt have an opportunity to put before the court submissions as to sentence: Castle City Pty Ltd v New Vintage Nominees Pty Ltd [2003] WASCA 30 [12] - [16]. There is nothing in s 16 of the MCA to suggest that this requirement has been excluded.
50 The unfairness of the procedure adopted in this case is illustrated by the fact that the magistrate took the view that the appellant's apology was diminished by the fact that it was made following being convicted and sentenced for the offence. She had, however, been given no opportunity to make an apology prior to that time. The process adopted by the magistrate meant that matters in mitigation could only be taken into account in reducing a penalty already imposed by exercising the power
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- under s 16(6). But that power only exists in order to mitigate a sentence where a person subsequently apologises. It is not intended to be used to take into account any other mitigating factors such as acceptance of responsibility, remorse or personal factors relevant to sentence.
51 For these reasons, whilst it was open to proceed summarily for a contempt constituted by a wilful insult in the face of the court, the procedure adopted in this matter was lacking in fundamental aspects of procedural fairness. Those aspects related not only to conviction but to sentencing. Whilst it is strictly unnecessary to consider the grounds of appeal in respect of sentence, I would, it if was necessary to do so, grant leave and allow the appeal against sentence in respect of grounds 1, 2 and 3.
Conclusion
52 At the hearing of the appeal the appellant's counsel submitted that the appropriate orders were that the conviction be set aside and an acquittal entered. This was said to be for two reasons. Firstly, that by the time the appeal had been heard the appellant had served a significant portion of the 2 month sentence imposed. This was a consequence of the length of that sentence and notwithstanding that the appeal was listed to be heard on an expedited basis. Secondly, that having set aside the conviction this court could now exercise the restraint that should be applied when a court is considering whether it is necessary to proceed with contempt charges. Accepting that the appellant insulted the magistrate, the circumstances in which she did so and her personal circumstances were said to justify the exercise of a discretion not to proceed further with the charge.
53 Having come to the conclusion that the conviction must be set aside due to the procedural fairness failings it is now open to me to consider whether the appropriate course is to remit the matter to the Magistrates Court for the matter to be determined afresh. In considering that question I can take into account matters which the magistrate did not take into account in proceeding to conviction and sentence, including that the appellant was remorseful and apologetic for her conduct prior to being found guilty. I can also take into account the circumstances in which the insulting words were spoken, the youth of the appellant and her personal circumstances.
54 Without in any way condoning the insulting words used by the appellant, it is my view that no useful purpose would now be served by remitting the matter back to the Magistrates Court. Even if she was again found guilty of contempt it is unlikely that any additional penalty would
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- be imposed. Accordingly, the orders that I made on 13 March 2013 were as follows:
1. Leave to appeal in respect of grounds 1 and 2 against conviction granted.
2. Appeal allowed.
3. Conviction and sentence set aside.
4. In lieu thereof a judgment of acquittal of the charge of contempt be substituted.
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