Last Updated: 20 April 2011
IN THE SUPREME
COURT OF VICTORIA
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Not Restricted
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AT
MELBOURNE
COMMON LAW
DIVISION
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v
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MAGISTRATES’ COURT OF VICTORIA AT
MOORABBIN
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Defendant
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---
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF JUDGMENT:
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CASE MAY BE CITED AS:
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Zukanovic v Magistrates’ Court of Victoria
at Moorabbin
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CONTEMPT – Practice – Contempt in face of court – Contemnor
blew and popped bubble gum in court - Contemnor sentenced
to one month’s
imprisonment – Judicial review of Magistrate’s finding of contempt
– Certiorari – Procedural fairness – Summary procedure
– Section 133 Magistrates’ Court Act.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Mr M Bearman
Mr T Alexander
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Defteros Lawyers
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For the Defendant
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No appearance
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Victoria Government Solicitors Office
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For the Attorney-General (as amicus
curiae)
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Ms F Forsythe
Ms C Dixon
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Victorian Government Solicitor Office
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HIS HONOUR:
Introduction
1 On 17 June 2010, the plaintiff Mr Mirza Zukanovic attended the Moorabbin
Magistrates’ Court with his solicitor to seek the
adjournment of a charge
of assault which had been laid against him. No doubt he anticipated a brief
appearance and returning to
visit his father in hospital.
2 Things did not
turn out as expected. As a result of blowing bubble gum in the presence of the
presiding Magistrate, Mr Zukanovic
was convicted of contempt of court and
sentenced to one month’s imprisonment. By the time of his release on
bail, he had been
incarcerated for nearly 12 hours.
3 I have concluded that
the process by which Mr Zukanovic was charged and convicted of contempt was
flawed. His application to quash
the Magistrate’s order must succeed and
he should not have to face this charge again, given the events that transpired
that
day.
4 Lest I be misunderstood, there is no doubt that where a judicial
officer perceives that there is a challenge to his or her authority,
then that
officer is entitled to take steps, including the laying of a charge of contempt,
to preserve the authority of the Court.
5 I also readily accept that a
Magistrate in a busy court is subject to many instances of untoward behaviour
not usually encountered
in higher courts and that the preservation of his or her
authority is integral to the office and the interests of justice.
6 However,
in the application of the law – particularly that of a charge of contempt
– firmness must be accompanied by
fairness. Unfortunately in this case,
aspects of procedural fairness, fundamental to ensuring a fair trial, were
ignored by the
Magistrate, with the result that Mr Zukanovic was improperly
convicted of a serious charge and imprisoned.
7 I shall in these reasons
endeavour to explain how it is that these unfortunate events came to pass and
why the Magistrate’s
decision cannot be allowed to stand.
8 But before
I do so I need to make one other point. This case involves the supervisory role
of the Supreme Court in its judicial
review of a decision of a Magistrate. It
is not an appeal against the sentence imposed by the Magistrate, nor is it a
review of
sentencing practices in the Magistrates’ Court.
The
events at the Magistrates’ Court at Moorabbin
9 Mr Zukanovic and two other defendants, Mr Jaha and Mr Saracevic
were charged in relation to an assault on 17 August 2009. Mr Zukanovic
was
granted bail and was required to attend Moorabbin Magistrates’ Court on 17
June 2010.
10 Each of the three defendants were represented by
Ms Klopper, an employee solicitor with one year’s experience as a
qualified
practitioner.
11 At about
11.10am,[1] the case was called on before the
Magistrate, his Honour Crisp M, and Ms Klopper made what is a routine
application that the charge
be adjourned to a summary case conference on 6 July
2010. Mr Zukanovic and Mr Saracevic were seated directly behind
her.[2]
12 Up until this point, things had
proceeded uneventfully. The application for the adjournment was unopposed and
the charges were
adjourned to the summary case conference. Then the following
occurred:
HIS HONOUR:---Just a minute, your client’s
committed a gross contempt in the face of the court. He blew a bubble in court
and
popped it, I think that’s what I heard, kept hearing this clicking
noise.
COUNSEL:---I apologise your Honour.
HIS HONOUR:---No, no, there’s no use apologising. I mean –
what’s his name?
COUNSEL:---It’s Mirza.
HIS HONOUR:---Well yes you’re charged with contempt in the face of the
court for blowing a bubble deliberately and popping
it. As I say it’s a
gross contempt of court you’ve stood in legal parlance, you’ve stood
the court; you’ve
defied the court’s authority by doing that,
apparently deliberately. You’ll have to decide what you’re going to
do now, that’s it. I am satisfied beyond reasonable doubt at this stage
as I should be that having perceived your client doing
that, pointing and
looking in my direction as he did that he’s committed, as I say, a gross
contempt so you’ll have to
– he’s no longer free to leave. I
won’t have him placed immediately in custody but he’s not free to
leave
and you’ll have to seek some instructions.
COUNSEL:---Yes Your Honour, if I could seek some instruction that would be
preferable.
HIS HONOUR:---You are now representing him; no conflict of interest is
there?
13 His Honour, after short discussion with Ms Klopper, then added:
That was an appalling performance, it’s a serious
contempt I can tell you
now.[3]
and
then adjourned the Court.
14 Notwithstanding the fact that the Magistrate had laid the charge and, on a
fair reading of the transcript, found the charge proved
beyond reasonable doubt,
there was then a curious, indeed strange, twist. The Magistrate (apparently
believing it was necessary
to comply with the Magistrates’ Court Rules),
during the course of the adjournment determined to have a written charge drawn
up and provided to Mr Zukanovic and Ms Klopper which alleged:
The accused at Highett on 17 June 2010 being a person
in the face of the Moorabbin Magistrates’ Court did commit a contempt
of
that court that in standing to leave the body of the court did deliberately blow
and popped a bubble of gum whilst looking in
the direction of the presiding
Magistrate thereby scandalising the court and challenging its
authority.
The charge was said to be laid under
s 133 of the Magistrates’ Court
Act[4] and was
signed by the Registrar of the Court.
15 During the adjournment, Ms Klopper, understandably, contacted the
principal of her firm seeking guidance. While she was on the
phone, a
“prison guard” spoke to Mr Zukanovic and told him that he was
not allowed to go anywhere. This was consistent
with instructions given by the
Magistrate prior to the adjournment.
16 During the break, Ms Klopper
also spoke with Mr Zukanovic, stating that:
... He admitted blowing the
bubble. He stated that he had not meant it as any sign of disrespect and he did
not mean to upset the
Magistrate. He stated that he did not to do it
deliberately.[5]
17 The Magistrate returned to the bench at approximately 12.30pm and then stated
that he required Mr Zukanovic to be handed a copy
of the
charge.[6]
18 The Magistrate then said
this:
... No difficulty about that well you are equipped with
the requisite...documentation now so the matter can proceed,
yes.[7]
19 Ms Klopper then proceeded to make a plea on behalf of Mr Zukanovic
in the following terms:[8]
(a) he acknowledged remorse for his actions;
(b) he understood and acknowledged that it was the wrong thing to do in the
circumstances;
(c) he had come to court after visiting his father in hospital who had just
had a heart attack and was about to return to see him;
(d) he was 20 years of age and working full-time as a painter earning
approximately $500 per week;
(e) he had no prior convictions;
(f) he acknowledged that he was ignorant and incredibly rude and “in
contempt of court”;
(g) that the appropriate disposition was the imposition of a fine.
20 His Honour then delivered his sentencing remarks. He described the incident
as “a grave calculated act”.[9] He
said that:
I perceived and rightly perceived that the actions by you as quite deliberate
and calculated to cause offence to the
court.[10]
21 Dealing with the blowing of bubble gum and the charge of contempt, he said as
follows:
Usually it involves expletives on the way out of court
but it’d be a very busy magistrate who took too much notice of all of
that. Unfortunately though in your case the act was, as I say calculated,
involved blowing a very large bubble and popping it whilst
looking in my
direction. I can only see that as calculated, as I said to you previously and
as has been outlined in the charge as
a deliberate and calculated attempt to
challenge the authority of the court and scandalise the court.
I mention the Frankston situation because any personal insult to the magistrate
doesn’t matter that’s something that’s
happening all the time.
But it occurred to me when I saw it that your act was an expression of contempt
to all in the court and to
the whole institution so I’m afraid I’m
unable to overlook it, there’s no prospect of accepting an apology. I
certainly wished you hadn’t done it but as I say it wasn’t the
spontaneous act of a fraught, possibly drug affected or
alcohol affected out of
control defendant so in those circumstances the penalty for the offence is a
month’s imprisonment,
it’s not susceptible of a fine because of the
gravity of the offence. All right, just take a seat thank
you.
Events subsequent to
Mr Zukanovic’s conviction
22 Mr Zukanovic was taken into custody at about 12.40pm and detained in the
cells at the Moorabbin Justice Centre. He was, in the
evening, transferred to
the Melbourne Custody Centre.
23 During the course of the late afternoon and
evening, an application was made to this Court to have Mr Zukanovic
released on bail.
That application was granted by Hargrave J, and
Mr Zukanovic was released from custody at about midnight and remains on
bail.[11]
24 This proceeding was issued on
21 June 2010 and seeks an order in the nature of certiorari quashing or setting
aside the Magistrate’s
decision. The application is supported by three
affidavits of Ms Klopper which, in effect, detail the events at the
Magistrates’
Court and shortly thereafter.
25 The Magistrates’
Court as defendant does not seek to act as a contradictor of
Mr Zukanovic’s application. Rather,
it took what is commonly
referred to as the Hardiman approach[12]
– agreeing to abide by the determination of the
Court.[13]
26 The Attorney-General appeared
on the hearing as amicus curiae, having filed written
submissions.[14] This was appropriate as
there was no contradictor to Mr Zukanovic’s application and important
matters of public interest
were raised. Indeed, in both discussion and written
submissions, I was particularly assisted by counsel for the
Attorney-General.
The issues
27 Although the particulars of relief and the submissions on behalf of
Mr Zukanovic traverse a large number of issues, essentially
the application
raises two matters of significance:
- Firstly
and primarily, was Mr Zukanovic afforded procedural fairness once he was
charged by the Magistrate with contempt?
- Secondly, given
that the charge was laid under s 133 of the MCA, did the Magistrate follow
the correct procedure prior to laying the
charge; if he did not, then was he
deprived of jurisdiction to determine the charge?
Was Mr Zukanovic afforded procedural
fairness?
29 The Magistrate, faced with what he perceived as a contempt in the face of the
Court, determined to exercise summary jurisdiction
and to hear the charge
himself.
30 As Charles JA explained in Murphy:
Summary jurisdiction to deal
with contempt of court has long been recognised as a necessary incident of the
courts of justice and
is a corollary of the unfettered powers courts possess to
regulate conduct of their own
proceedings.[16]
31 In the Magistrates’ Court, summary jurisdiction is provided by
s 133 which reads as follows:
Contempt in face of the Court
(1) If it is alleged or appears to the Court that a person is guilty of contempt
of court committed in the face of the Court, the
Court
may—
(a) by oral order direct that the person be arrested and brought before the
Court; or
(b) issue a warrant for his or her arrest in the form prescribed by the
Rules.
(2) On the person being brought before the Court, the Court must cause him or
her to be informed of the contempt with which he or
she is charged and adopt any
procedure that the Court thinks fit.
(3) The Bail Act 1977 applies, with any necessary modifications,
to and in respect of a person brought before the Court under this section as if
the person
were accused of an offence and were being held in custody in relation
to that offence.
(4) If the Court finds that the person is guilty of contempt of court, it may
order that the person be sentenced to a term of imprisonment
of not more than
six months or fined not more than 25 penalty units.
(5) If a person found guilty of contempt of court is ordered to be imprisoned,
the Court may order his or her discharge before the
end of the term.
(6) The Court may accept an apology for a contempt and may remit any punishment
for it either wholly or in part.
(7) Persons who by conduct in the Court or in the precincts of the Court
interrupt the proceedings of the Court in circumstances
in which it appears to
the Court that those persons are acting in concert with the object of
interrupting the proceedings of the
Court may each be dealt with under this
section for contempt of court committed in the face of the
Court.
32 The High Court and appellate courts in this country have, on a number of
occasions, emphasised that a summary trial for contempt
by the same judge is
“extremely rare”,[17]
extraordinary”[18]and should only be
adopted in “serious cases”.[19] In
Fraser, Kirby P and McHugh JA said of summary proceedings:
In the case of summary proceedings for contempt in the face or hearing of the
court, there are special reasons for the extension
of facilities and privileges
to the alleged contemnor. By any standard the procedure is extraordinary.
The judge may be, at once, the witness, possibly even the victim, of the
contempt. He may be the initiator of the former curial proceedings to bring
the contemnor before the court, as was the case here. It is
he who has to
decide the issues of fact, to determine the charge, and then to make the order
for punishment or discharge the contemnor.
This unusual concatenation of roles
imposes upon the judge peculiar responsibilities and equivalent duties to
ensure that justice is done and seen to be done. If he decides to deal
with a matter summarily...It is trite to say that a person faced with a
serious charge, and the risk of punishment, including imprisonment, should be
given
an ample opportunity to be heard...The rule as to hearing parties is
fundamental to due process of law. But it is specifically important
in the
extraordinary summary procedure for contempt for the reasons already
suggested. The requirement of the appearance of justice imposes on the
judge a special obligation to ensure that he has not made up his mind
until everything that can reasonably be placed on the scale is allowed to be put
there.(emphasis added and citations
omitted).[20]
33 More recently, in Clampett v Attorney-General
(Cth)[21], Greenwood
J[22] said of the exercise of the power of
contempt:
The election to exercise the power to punish contempt in the face of the court
in this way, although of early origin in the common
law and expressly conferred
by the Federal Magistrates Act and addressed by the Federal
Magistrates Court Rules, is apt to place the judicial officer in a difficult
position of framer and prosecutor of the charge; repository of the knowledge
of
the relevant events as the personification, in one sense, of the court in whose
face the contempt has occurred; and the person
required to determine whether the
charge is made out beyond reasonable doubt. Thus, the power ought to be
exercised sparingly and
with great caution so as to engage the class of case in
which the integrity of the court or its proceedings must necessarily be
protected
by invoking the exercise of the power by the court as constituted at
the time of the
contempt.[23]
34 In England the Court of Appeal in Balogh v St Albans Crown
Court[24] described the contempt power as
“salutary and dangerous”[25] and to
be “exercised with scrupulous care and only when the case is clear and
beyond reasonable
doubt”.[26]
35 However, it is also
clear that in cases of urgency or necessity, a court is entitled to hear a
summary charge of contempt in the
face of the Court as s 133 provides. In
Kift v R the Full Court said[27]:
The matter that was alleged against the appellant was that she had committed a
contempt otherwise than in the face of the court.
Accordingly, as his Honour
indicated, the procedure which was set in train was an application made under Pt
3 of O.75. It is helpful to bear in mind that this procedure is different in
important respects from the summary procedure which is available
where there is
a contempt in the face of the court which demands an immediate response from the
court. In such a case, which usually
arises from events of which the court
itself is a witness, special procedures are permitted, including the receiving
of hearsay evidence. Moreover, the alleged contemnor does not have an
unrestricted right to cross-examine witnesses against him or her. That this
summary
procedure is exceptional and to be adopted only where the circumstances
clearly demand it is emphasised in the judgments of the Court
of
Appeal.(emphasis added and citations
omitted)[28]
36 In my view, contrary to the written submissions of Mr Zukanovic, it was
appropriate for the Magistrate to deal with this matter
himself and to exercise
summary jurisdiction. It would appear that he was the only witness to the
asserted contempt which was committed
in the face of the Court. Indeed, the
Court of Appeal in Murphy[29] regarded the
summary procedure under s 133 as appropriate where a barrister was alleged
to have defied the authority of a Magistrate.
Given that the Magistrate in this
case was the only person who appears to have perceived the “popping”
of the bubble
gum, I think, out of necessity, it was reasonable for him to
determine the charge himself.
37 However, once his Honour decided to hear the
charge there were two important propositions that had to be borne in mind. The
first
is that contempt of court is a criminal
offence[30] which has the potential (and as it
transpired, the reality) to result in a period of imprisonment. As such it was
essential that
the Magistrate ensured that the rights of the alleged contemnor
to a fair hearing were preserved.[31] Second,
as the authorities demonstrate, the Magistrate was required to proceed with
great caution, because of the position he was
in – namely witness,
prosecutor and judge.
38 In Coward v
Stapleton,[32] the High Court made clear the
process necessary for a charge of contempt in the face of the Court:
... 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 ... 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 ... The
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.[33]
(emphasis added and citations
omitted)
39 In Kift, the Full Court said:-
It is of particular importance in contempt
applications, where the court is often in a sense an interested party, that the
judge do
whatever is possible to ensure that there be observed not only the
requirements of a just and open-minded hearing, but also that
this be apparent
to the accused and to the
world.[34]
40 And finally in Rich v Attorney-General for the State of
Victoria,[35] the Court of Appeal said:
None the less, contempt of court is a criminal offence and the summary nature of
the proceedings cannot be permitted to subvert principles
of fairness or to
become an instrument of oppression to an alleged contemnor. Thus the courts
over the years have required strict
compliance with the rules, particularly
those which are designed to protect the interests of the contemnor. He is
entitled to know
what is being alleged against him and to be given every chance
to meet the allegations. He is entitled to strict compliance with
the rules as
to personal service of the motion.(citations
omitted)[36]
41 In light of these clear and unambiguous statements of principle, a fair
hearing of the charge of contempt against Mr Zukanovic
required the
following steps to be taken by the Magistrate prior to determination of the
charge.
First, to set out the charge. This could be done
either orally or in writing. What was essential was that Mr Zukanovic
understood
the charge the Magistrate was laying.
Second, to afford Mr Zukanovic the opportunity to consider the charge
and if necessary, to seek further legal advice, or an adjournment
or, perhaps,
further particulars of the
charge.[37]
Third, to give Mr Zukanovic the opportunity to state whether he pleaded
guilty or not guilty to the charge.
Fourth, in the event that Mr Zukanovic pleaded not guilty to the charge,
to give him the opportunity to present evidence and to make
submissions relevant
to the determination of the charge.
Then, having adopted this procedure, the Magistrate was required to be
satisfied beyond reasonable doubt that Mr Zukanovic was guilty
of the
charge.[38] In doing
so, he was required to consider carefully all the evidence and keep at the
forefront of his mind the unusual role he was
undertaking in this process.
42 The transcript, which I have set out at [12], demonstrates that the
Magistrate simply charged Mr Zukanovic, found the charge proved
and then
proceeded on the basis that the next step was the plea.
43 Apart from the
actual laying of the charge, the Magistrate observed none of these essential
aspects of procedural fairness.
44 Each of the steps that I have set out
were fundamental to a fair trial of the charge of contempt in which the Court is
placed in
a unique position. This is not mere window dressing. The application
of this process was highly relevant to how Mr Zukanovic may
have sought to
defend the charge. He may have desired to take issue with the procedure which
the Magistrate intended to take. He
may have sought to argue that another
Magistrate should hear the matter, or that utilising s 133 of the MCA was
inappropriate in
the circumstances. Whether these applications would have met
with any success is not to the point – he should have been given
the
opportunity to canvas these matters with the Magistrate. Moreover, there was a
real advantage to Mr Zukanovic having time to
consider the charge and
determine what course he wished to take. He had told his solicitor that the
blowing of the bubble was not
deliberate. This would have afforded him an
arguable defence to the charge of contempt. But it was too late; by the time
he gave
these instructions the Magistrate had laid the charge and found it
proved.
45 In summary, the process was flawed with the most unfortunate
result that Mr Zukanovic was deprived of his liberty and incarcerated
for a
period of nearly 12 hours. On this ground, certiorari should run and the
decision of the Magistrate will be quashed.
46 Nothing in what I have said
should be taken to condone actions which constitute a deliberate contempt of
court. The Court’s
authority must be upheld and alleged contemnors should
be subject to due process. But due process, particularly where the end result
may be incarceration, must be accompanied by procedural fairness. Each concept
is an essential pillar of the proper administration
of justice in this
State.
Did
the Magistrate have the power under s 133 to determine the contempt
charge?
47 Counsel for Mr Zukanovic contended that the Magistrate, in exercising
his powers under s 133(2), had failed to comply with a precondition
to that
power as prescribed in the form of s 133(1). He argued that s 133(1)
required the Court to direct that the alleged contemnor
be arrested or that a
warrant be issued for his or her arrest. Without such steps, it was said, then
the jurisdiction to deal with
Mr Zukanovic under s 133(2) and the
following provisions was not enlivened.
48 This argument could only succeed
if it was accepted that:
(a) the exercise of the
power under s 133 was dependent upon compliance with s 133(1); and
(b) that the legislature intended that the direction for an arrest or the
issue of a warrant was an essential preliminary for the
exercise of power under
s 133.
49 This submission faced a significant hurdle in the form of the decision of the
Court of Appeal in R v Perkins.[39] In that
case, the Court considered the contempt in the face of court provisions of
s 137 of the Victorian Civil and Administrative
Tribunal Act.
Sub-sections 2 and 3 of that section are a mirror of sub-ss 1 and 2 of
s 133 (with appropriate alterations to the
title of the
Court/Tribunal).
50 An identical argument to that put here by counsel for
Mr Zukanovic was mounted in Perkins to the effect that the exercise of
jurisdiction
for contempt was dependent upon either arrest or the issue of a
warrant. Vincent JA (with whom Phillips CJ and Chernov JA agreed)
rejected the
submission.
51 Vincent JA noted the use of the word “may” in
s 137(2) – the equivalent of s 133(1) – provided a
discretionary
power to the Magistrate and concluded that there was no necessity
for the enlivening of the Court’s jurisdiction for the alleged
contemnor
to be arrested saying:-
Recognizing that the word
"may" in s 137(2) cannot simply be read as "must", for if that were the
case, the Tribunal would possess
no discretion at all with respect to the arrest
of any person alleged to have committed contempt, counsel for the applicant
contended
that, in effect, it should be read as meaning "may only". There is no
foundation by reference to the language or statutory scheme
for the adoption of
this interpretation. The word "may" should be treated as indicating the presence
of an ability to act but not
the necessity to do so.
[40]
Then
his Honour noted the practical consequences of requiring a person to be
arrested, before proceeding to determine a charge of
contempt:
The various forms of conduct which can constitute contempt of the Tribunal under
s 137(1) may occur in the face of the Tribunal,
at some other place, in
relation to a specific matter or scandalize the Tribunal generally. The acts
constituting the perceived contempt
may vary from the very serious to the
relatively minor. There may be a need, in some cases, to have a recalcitrant
individual arrested
and brought before the Tribunal. On other occasions, as in
the present case, to do so would involve gross overreaction. Recognition
of the
diversity of situations in which contempt may be committed and the degree of
seriousness to be attributed to particular pieces
of behaviour is reflected in
the dispositions available. In some circumstances, the provision of an adequate
apology may be regarded
as sufficient. Others may require the imposition of a
fine up to $100,000 or imprisonment for a maximum period of five years or both
a
fine and imprisonment.
[41]
Next
his Honour observed another consequence which could not have been
Parliament’s intention – the unnecessary deprivation
of the liberty
of the alleged contemnor in every case:
As the applicant rightly contends, the Victorian Civil and Administrative
Tribunal is not a court and it possesses no inherent jurisdiction.
The only
power which it has with respect to contempt is that conferred by s 137. No
formal requirements with respect to the manner
in which charges are to be laid
are set out in the section, but the Tribunal is able to determine its own
procedure once a person
charged with contempt is brought before it. Presumably,
if an alleged contemnor refuses to attend or ignores a Notice of the kind
served
upon the present applicant, the issue of an arrest warrant may, as a matter of
judgment, be considered to be necessary. Once
before the Tribunal, the
individual must be informed of the contempt with which they are charged.
Thereafter the Tribunal may adopt any procedure that it thinks fit, consistent,
of course, with its obligation to accord natural justice to the person charged.
An interpretation of s 137(2) which would necessitate
arbitrary and, I
suspect, generally unnecessary deprivation of liberty in every case encompassed
by s 137 before the matter could
be dealt with by the Tribunal, is one
which, in the absence of a clear statutory direction to that effect, should be
rejected. [42]
There is nothing in s 137 itself or in the nature of the power conferred
which could give rise to any reasonable suggestion that
the jurisdiction of the
Tribunal to deal with charges of contempt is dependent upon the exercise of the
power under s 137(2), still
less the kind of arbitrary power already
discussed.
His Honour concluded that s. 137(2) was
patently facilitative and not a condition of jurisdiction:
The Tribunal has been given under s 137, the jurisdiction to deal with
alleged or perceived acts of contempt. At most, s 137(2) is
concerned with
the manner in which the potential risk of non-attendance of the alleged
contemnor before the Board can be secured.
The provision is patently
facilitative with respect to the jurisdiction conferred by the section. The
situation is not one in which:
"the statute ... establishing [the Tribunal] and conferring its jurisdiction
requires that that particular matter [the absence of
an arrest warrant] be taken
into account ... as a pre-condition of the existence of any authority to make an
order or decision in
the circumstances of the particular
case."[43] (citation
omitted)
52 It is not necessary to determine whether I am bound by the decision in
Perkins,[44] as I am firmly of the view that
the reasoning is, with respect, impeccable and directly applicable here. It is
entirely consistent
with the approach formulated by the High Court in Project
Blue Sky Inc v Australian Broadcasting
Authority.[45] There is no reason to depart
from the conclusion reached by the Court of Appeal in relation to an identical
provision concerning
the same offence.
53 Counsel for Mr Zukanovic
sought to rely upon s 134 of the MCA as pointing to a different
interpretation of s 133 than that which
Perkins dictates. He referred to
sub-section (2)(a) which provides ‘the Court may order the arrest of
the person and, on the
person being brought before the Court’ then deal
with the charge. He submitted that s 134 mandates a precondition of arrest
because of the use of the conjunctive ‘and’, in that section in
contrast to the disjunctive ‘or’ in s 133(1).
It follows, he
argued, that where arrest is mandatory on the less serious charge of contempt
set out in s 134 (the penalties for
breach of s 133 are heavier than
those for breach of s 134), then logically, arrest would be required in the
case of a more serious
charge of contempt in the face of the court under
s 133. Further, the use of the phrase ‘before the Court’
required
that Mr Zukanovic be brought specifically before the Magistrate in
respect of that discrete contempt charge. This, he said, led
to the conclusion
that arrest was a precondition to jurisdiction.
54 I do not accept this
submission. Section 134(1) deals with a number of specific instances of
contempt and sets out a process for
dealing with these specified forms of
contempt whilst s 133 sets out a scheme for dealing with contempt in the
face of the Court.
On that basis alone, it is distinguishable. It would be
wrong, I suggest, to endeavour to construe s 133 by reference to a separate
section dealing with different forms of contempt.
55 In any event I do not
accept that s 134(2) mandates arrest as a precondition to exercising the
contempt power. Section 134(2)(a)
is, like s 133(1) facilitative, and
the considerations set out in Perkins are directly applicable. By use of the
word ‘may’
the Court is given the discretion to have the contemnor
arrested in circumstances to which s 134(1) apply. As with s 133(1), s
134(2)(a)
is not a statutory precondition to jurisdiction.
56 Finally, it is
also of note that in Murphy, there was no suggestion by the Court of Appeal that
s 133 necessitated an arrest before
the jurisdiction of the Court was
enlivened.[46]
57 In summary, the Magistrate
was acting within jurisdiction when he laid the charge of contempt against
Mr Zukanovic and this ground
of review should be rejected.
Other matters
58 A number of matters were raised in the course of oral argument which I
should, out of deference to the helpful submissions made
by counsel for
Mr Zukanovic and the Attorney-General, address albeit briefly.
59 First,
there was discussion as to whether the breach of procedural fairness by a
judicial officer preferring a contempt charge
was a ground simpliciter for an
order in the nature of certiorari, or whether such a breach was to be
characterised as constituting
jurisdictional error. The argument, in the
context of this case at least, was superfluous, however it was characterised;
the inevitable
result is that certiorari should run.
60 For my part, I am,
until convinced otherwise, prepared to treat procedural fairness alone as a
proper ground, for the issuing of
certiorari. I am content to rely upon what
was said by the High Court in Craig v The State of South
Australia:[47]
Where the writ runs, it merely enables the quashing of the impugned order or
decision upon one or more of a number of distinct established
grounds, most
importantly, jurisdictional error, failure to observe some applicable
requirement of procedural fairness, fraud and
“error of law on the face of
the
record”.[48]
61 Whilst I accept that in certain situations, denial of procedural fairness may
constitute jurisdictional error[49], I do not
think that anything said recently by the High Court in Kirk v Industrial
Relations Commission of New South Wales[50] as
to the scope of certiorari, affects the proposition stated in Craig. In any
event, as I have said, whichever route is taken the
result is no
different.
62 Second, it was accepted by counsel for Mr Zukanovic and
for the Attorney-General that the provisions of the Charter did not add
anything
to the common law position in relation to either the question of procedural
fairness[51] or the statutory interpretation of
s 133 of the MCA.
63 Third, the question of the extent, if any, of the
implied powers of a Magistrate to deal with contempt did not require
consideration
as it was clear that the Magistrate acted under s 133 of the
MCA.
64 Finally it is not necessary to deal with the allegation of bias made
by Mr Zukanovic given my findings as to the deficiencies associated
with
the hearing of the charge.
Should the charge be
remitted to the Magistrates’ Court?
65 Having determined to grant certiorari and quash the Magistrate’s
decision, the question now arises as to what else, if anything,
is to be done by
this Court.
66 Often where certiorari runs against an inferior court or an
administrative decision maker, directions are given by this Court as
to the
future disposition of the matter by the body or person whose decision is
impugned. It is not necessary to determine on this
application whether such a
direction is within the power of this Court when granting certiorari, as I am
not prepared to make any
direction in respect of the future prosecution of this
charge.
67 I say that for several reasons. First, the charge could not,
given what has happened, be determined by the Magistrate who laid
it.[52] It must be heard by another Magistrate
and the difficulties associated with adducing evidence, although not
insurmountable, are
significant.[53] Second,
and perhaps more importantly, Mr Zukanovic has already been incarcerated
for nearly half a day. Finally, I think it would
be unfair, given what has
happened in this case, to subject Mr Zukanovic to further process even if
it be assumed that he would at
that hearing be found guilty of
contempt.
68 Accordingly, I will not make any direction as to further
hearing of the charge.
Orders
69 The decision of the Magistrate on 17 June 2010 sentencing Mr Zukanovic
to one month’s imprisonment is quashed.
[1]
Affidavit of Ms Sophie Klopper of 21 June 2010 [4] – [6].
[2] Mr Jaha was on
remand and did not attend.
[3] T 2.
[4]
“MCA”.
[5] Affidavit of Ms
Sophie Klopper of 21 June 2010 [17].
[6]
T 2.
[7] T 2.
[8]
T 2-T 3.
[9]
T 3.
[10] T 4.
[11]
Affidavit of Ms Sophie Klopper of 30 March 2011 [3] – [15]. Bail was
subsequently extended by Pagone J on 24 June 2010.
[12]
R v Australian Broadcasting Tribunal: ex parte Hardiman [1980] HCA 13; (1980) 144 CLR
13, 15. See also the comments in Magistrates’ Court at Prahran v
Murphy [1997] 2 VR 186, 200 “Murphy”.
[13] Letter of 2
August 2010.
[14]
Leave to appear as amicus curiae was granted by Daly As. J on 3 August
2010.
[15]
“The Charter”.
[16]
Murphy, 202.
[17]
Keeley v Brooking [1979] HCA 28; (1979) 143 CLR 162, 170-171, 186.
[18] Fraser v
the Queen (1984) 3 NSWLR 212, 224-225
“Fraser”.
[19] Lewis v
Ogden [1984] HCA 28; (1984) 153 CLR 682, 693.
[20] Fraser
224-225.
[21]
[2009] FCAFC 151; (2009) 260 ALR 462.
[22] Although his
Honour was, in part, in dissent on the facts, I do not understand this statement
of principle to be in issue.
[23] Ibid,
[158].
[24]
[1975] 1 QB 73.
[25] Ibid, 91.
[26] Ibid, 85.
[27]
[1993] VicRp 51; [1993] 1 VR 703 “Kift”.
[28] Ibid,
707.
[29]
[1997] 2 VR 186, 204.
[30]
John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2000) 181
ALR 694 [5], Rich v Attorney-General [1999] VSCA 14.
[31] Fraser,
224-225.
[32]
[1953] HCA 48; (1953) 90 CLR 573.
[33] Ibid 579-580.
See also Varnavides v VCAT [2005] VSCA 231; (2005) 12 VR 1.
[34] [1993] VicRp 51; [1993] 1 VR
703, 709.
[35]
[1999] VSCA 14.
[36] Ibid [39].
See also Murphy, 211.
[37] See
Murphy, 210.
[38] Witham v
Holloway (1995) 183 CLR 525, 545.
[39]
[2002] VSCA 132.
[40] [2002] VSCA
132, [14].
[41] Ibid,
[15]
[42] Ibid,
[16].
[43] Ibid,
[18].
[44]
Ogden Industries Pty Ltd v Lucas [1970] AC 113, 127; Damjanovic and
Sons Pty Ltd v Commonwealth [1968] HCA 42; (1968) 117 CLR 390, 408-409.
[45] [1998] HCA 28; (1998) 194
CLR 355 [93].
[46]
The point does not seem to have been agitated, although the Court examined,
closely, the application of s 133 to a charge of contempt
in the face of the
Court.
[47]
[1995] HCA 58; (1995) 184 CLR 163.
[48] Ibid
175-176.
[49]
As to other situations see Re Refugee Review Tribunal & anor: ex parte
Aala [2000] HCA 57; (2000) 204 CLR 82 in which the High Court held that a denial of
procedural fairness by an officer of the Commonwealth may result in a decision
made
in excess of jurisdiction in respect of which prohibition will issue under
s 75(V) of the Constitution.
[50] (2010) 239
CLR 531, [72]-[73].
[51]
See s 25 of the Charter or the construction of s 133(1).
[52]
Murphy, 212.
[53]
Murphy, 208.
http://www.austlii.edu.au/au/cases/vic/VSC/2011/141.html
