Published by Geoff Harrison | 1 November 2023
The offence of contempt is a common law offence hence, the maximum penalty is at large in the Supreme Court. In the Local and District Court, the maximum penalty is 20 penalty units ($2,200) or 28 days imprisonment: s199(7) District Court Act 1973. Contempt has to be in the face of the court ie. seen or heard by the judicial officer, or sufficiently proximate to the proceedings (see Civil Trials Bench Book: Contempt in the face of the court).
As noted in Patrick, the principles relevant to sentencing for contempt were outlined by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314:
“A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.
...
It is appropriate to evaluate the opponent’s conduct, relevant to punishment, by having regard to the objective seriousness of the offence found; the considerations relevant to his culpability; and the considerations relevant to demonstrating contrition or otherwise apt for evaluating his conduct”.
A common form of the offence of contempt is the refusal to answer questions under oath or affirmation. Dunford J in Wood v Staunton at [185] identified some 10 factors to be taken into account in assessing the proper punishment for contempt: see Patrick at [21].
For dealing with the Contempt in the Supreme Court, see Part 55 of the Supreme Court Rules 1970.
Other Sources:
Cases:
Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym) [2023] NSWSC 1077
Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340
Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495
The Honourable Justice J R T Wood, Royal Commissioner v Charles Joseph Staunton No. 30031/95 [1995] NSWSC 61
TONER v ATTORNEY GENERAL FOR NEW SOUTH WALES [1991] NSWCA 267
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Extracted Legislation:
CRIMINAL PROCEDURE ACT 1986 - SCHEDULE 3
SCHEDULE 3 – PROVISIONS RELATING TO OFFENCES
(Section 316)
Part 1 - Contempt
1 INSTITUTION OF CONTEMPT PROCEEDINGS
(1) Proceedings for contempt of court may be instituted in the Supreme Court in the name of the "State of New South Wales" by--
(a) the Attorney General, or
(b) the Solicitor General or Crown Advocate acting under a delegation from the Attorney General.
(2) Nothing in subclause (1) prevents contempt of court being dealt with in any other manner, and in particular nothing in that subclause prevents proceedings for contempt of court from being instituted in any other manner.
LOCAL COURT ACT 2007 - SECT 24
Contempt of court
(cf LCA 1982, sections 27A and 27B)
(1) The Court has, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the same powers as the District Court has in those circumstances.
(2) Without limiting subsection (1), the Court may vacate or revoke an order with respect to contempt of court.
(3) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Local Court and a Magistrate in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to a proclaimed place is taken to be a reference to a designated place, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Local Court under those provisions as so applied.
(4) Without prejudice to the powers of the Court under this section, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court, whether committed in the face or hearing of the Court or not, the Court may refer the matter to the Supreme Court for determination.
(5) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
DISTRICT COURT ACT 1973 - SECT 199
Contempt
(1) In this section,
"contemnor" means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.
(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may--
(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.
(3) Where the contemnor is brought before the Court, the Court shall--
(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,
(b) require the contemnor to make his or her defence to the charge,
(c) after hearing the contemnor, determine the matter of the charge, and
(d) make an order for the punishment or discharge of the contemnor.
(4) The Court may, pending disposal of the charge--
(a) direct that the contemnor be kept in such custody as the Court may determine, or
(b) direct that the contemnor be released,
and such a direction is sufficient authority for the contemnor's being kept in custody or released, as the case may be.
(5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.
(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.
(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days.
(8) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.