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The other side has the opportunity to answer my Summary of Argument and what follows is the content of that response.


No. S 127 of 1998




The applicant does not raise any matter justifying the grant of special leave. The judgement of the Court of Appeal is correct and nothing raised in the Applicant's submissions casts doubt on its correctness. The application does not require the Court to resolve differences of opinion as to the state of the law. Rather the issue which the Applicant seeks to raise is one in which the law is well settled.

The judgement appealed from is of an interlocutory nature. In the event that the Applicant is convicted of contempt after a summary hearing, he may, should he choose to do so, raise this issue on appeal against his conviction.


Subject to one matter, the Respondent adopts the facts as set out in the judgement of Hidden J of 16 march 1998, together with the brief statement of facts in the Applicant's summary of argument.

The additional matter of fact is that the allegation against the Applicant is that the paint was thrown at Murray AJ immediately after judgement had been delivered, and before the Court had been adjourned.


Authority establishes that contempt is punishable summarily

1. It has long been the law that contempt, particularly in the face of the Court as is alleged against the Applicant, may be prosecuted summarily. In John Fairfax & Sons P/L v McRae (1954-55) 93 CLR 351, Dixon CJ, Fullagar, Kitto, and Taylor JJ, at 34, said "(A)ll criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (ie without conviction by a jury) by the court before which the contempt is committed.".

2. In this Court's recent examination of civil and criminal contempts in Witham v Holloway (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ, at 534, noted that "... to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural difference, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contemptdo not.".

3. This Court has considered a number of cases in which contempt was dealt with summarily. In no such case has it been suggested that a jury trial was required, see eg The King v Taylor & Ors, Ex Parte Roach (1951) 82 CLR 587, James v Robinson (1963) 109 CLR 593, Keeley v Mr Justice Brooking (1978-79) 143 CLR 162, Hinch v Attorney General (Victoria) (1987) 164 CLR 15 and Macgroarty v Clauson (1989) 16 CLR 251.

4. When the High Court considered whether certain publications amounted to a contempt of itself (The King v Fletcher; ex parte Kisch (1935) 52 CLR 248), this court held that it had jurisdiction to punish contempt summarily: "The High Court has ample jurisdiction to punish summarily those responsible for publications calculated to obstruct or interfere with the administration of justice ..." (per Evatt J, at 257). "In all cases of contempt, the Court has power to act not only summarily but ex mero motu" Per Evatt J, at 258.

5. Indeed, one of the reasons for the circumspection which should be exercised before a court invokes a jurisdiction to deal with contempt in the face of the court is that its exercise may deprive a person of his or her liberty without a jury trial, see Consolidated Press Ltd v McRae (1954-55) 93 CLR 325 at 342 where McTiernan J refers to Ex Parte Gaskell v Chambers Ltd (1936) 2 KB 595.

6. In Registrar of Court of Appeal v Willesee Ors (1984) 2 NSWLR 378 the NSW Court of Appeal dismissed a motion seeking trial by jury on a charge of contempt. The basis of the Applicant's argument in that matter was that proceedings for contempt not committed in the face of the court could have the benefit of trial by jury. It was put that in the absence of any need to act swiftly to vindicate the authority of the Court the use of a summary procedure was inappropriate (see 381G to 382B). The response to that submission by Samuels JA was:-
"It is true, of course, that the capacity of summary trial to produce a speedier determination of the issues than a trial on indictment can do, represents its 'practical justification'. But this is not to say that cases in which the exercise of the contempt power is justified may be divided into those which require speedy trial, and those which do not. (I am not considering examples of what is called contempt in the face of the court.) Since all of them, on the assumption made, involve, or may appear to involve, acts calculated to embarrass the normal administration of justice, all demand speedy trial. It is therefore the nature of the offence which commends the summary mode of dealing with it."

In any event as the Court noted, trial on indictment or by way of criminal information for contempt has not occurred in New South Wales for at least the last ninety-five years. "The procedure is for all practical purposes obsolete ..." (page 379E).

7. In Director of Public Prosecutions v ABC (198) 7 NSWLR 588, at 595, a five-judge bench of the NSW Court of Appeal approved Registrar of Court of Appeal v Willesee & Ors. An application for special leave to appeal to the High Court against the decision of the Court of Appeal in Registrar of Court of Appeal v Willesee & Ors was refused on 7 December 1984. The High Court, Gibbs CJ, Wilson and Dawson JJ, saw "no reason to doubt the correctness of the conclusion reached by the Court of Criminal Appeal." (High Court, Transcript of Proceedings, 7 December 1984, p16).

Magna Carta does not establish a right to trial by jury

8. The applicant relies on c.29 of the magna carta as establishing a right to trial by jury. Although c.29 traditionally has been thought to embody this fundamental principle, historical analysis reveals that this chapter " ... has had much read into it that would have astonished its framers: application of modern standards to ancient practice has resulted in complete misapprehension" (McKechnie, Magna Carta, 2nd ed (1914) at 395 as quoted by Toohey J in Jago v District Court (NSW) (1989) 168 CLR 23 at 66). In Jago Toohey J thought it pertinent to note Holdsworth's observation that whilst it was said in the seventeenth century that c. 29 (together with related chapters) embodied the principles of the writ of Habeas Corpus and of trial by jury, "It is not difficult to show that, taken literally, these interpretations are false. Trial by jury was as yet in its infancy ..." (Holdsworth, History of English Law, 7th edition (1956), volume 2 at pp 214-215 cited by Toohey J at p 66). Similarly in Kingswell v The Queen (1985) 159 CLR 264, Deane J (in dissent as to the outcome of the appeal) observed that modern scholarship would indicate that much of the traditional identification of trial by jury with magna Carta was erroneous (see 299).

9. For authority that the phrase "The judgement of his peers" in c. 29 did not refer to trial by jury, see Adams and Schuyler, Constitutional History of England, Jonathon Cape, London at 136-7; Forsyth, History of Trial by Jury, 2nd Edition, Burt Franklin, New York, 1878 at pp 91-92; Holdsworth, History of English Law, 6th edition, volume 1 at pp 59-660, 385 48; Holt, Magna Carta, 2nd edition, Cambridge University Press, 1992, pp 9-10; Howard, Magna Carta Text and Commentary, The University Press of Virginia, at 14; Lyon, Magna Carta, the Common Law, and Parliament in Medieval England, Forum Press, Missouri, 1980 at p 7; McKechnie, Magna Carta, 2nd edition, 1914 at pp 375-379; Windeyer, Lectures on Legal History, Law Book Company, 1938, "Magna Carta" at pp 64-66.

10. Magna Carta c 29 embodies a "protest against arbitrary punishment, and against arbitrary infringements of personal liberty and rights of property" (Holdsworth, Volume II at p 215; Wade and Bradley, Constitutional and Administrative Law, 10th edition, Longman, London, pp 13-14). The summary procedure proposed to be undertaken in this case accords with these principles.

Magna Carta may be modified by NSW law

11. Even if the above submission is incorrect, c 29 of the magna carta cannot be availed of in this case as it does not hold the status of a constitutional provision of NSW, rather it is open to "affectation and modification" by ordinary legislation enacted by the State Parliament (Galea v NSW Egg Corporation Court of Appeal, 21 November 1989, Unreported, at 6, Adler v District Court of NSW (1990) 19 NSWLR 317 at 332; see also Chester v Bateson (1920) 1 KB 829 per Darling J). Such is explicit in s 6 of the Imperial Acts Application Act 1969 (NSW) which declares c 29 to have remained in force in NSW "except so far as affected by any ... State Acts from time to time in force in New South Wales" (6(b)). The Supreme Court Act and Rules have affected the asserted right to trial by jury in providing for a procedure whereby contempt may be prosecuted by summary procedure (see Supreme Court Act 1970 (NSW) s 53(3F), Supreme Court Rules Part 55; Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 91-3 per McHugh JA).

12. This Court has held on a number of occasions that local law is able to over-ride Magna Carta. In Chia Gee v Martin (1905) 3 CLR 649 Griffiths CJ said, at 653, "The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Carta is not one of serious refutation." In Re Cusak (198) 60 ALJR 302 Wilso J pointed out that "The validity of laws enacted by the Commonwealth Parliament falls to be determined by reference to the proper construction of the Australian Constitution. It is not open to base an argument for validity by reference to alleged inconsistencies between laws of the Commonwealth and either Magna carta or the Bill of Rights.".

13. For many years after the establishment of the colony of NSW there were no jury trials, with criminal matters being heard by the Judge Advocate and a panel of six military officers, see Evatt J "The Jury System in Australia" (1936-37) 10 ALJ (Supplement) 49, Bennett JM "The Establishment of jury Trial in NSW" (1956-61) 3 Sydney Law Review 463 and Neale D The Rule of Law in a Penal Colony, Cambridge University Press, 1991, Chapter . Thus it has long been recognised in this State at least that Magna Carta did not establish an immutable right to trial by jury for criminal offences.

Interpretation Act 1987 (NSW)

14. The Interpretation Act 1987 (NSW) has no application. S30(1)(c) protects rights, privileges, obligations and liabilities "acquired, accrued or incurred under the Act" from affectation by the amendment or repeal of an Act. As at the date of commencement of operation of the Supreme Court Act and Rules, the applicant had no right or privilege acquired or accrued under s 6 of the Imperial Acts Application Act. The actions giving rise to the prosecution for contempt had not been committed nor had any prosecution been instituted against the applicant. If the right to trial by jury is conferred by Magna Carta as is asserted by the applicant, at the commencement date of the Supreme Court Act and Rules, the applicant had "a mere right or privilege in the abstract which could not be regarded as a right or privilege which has accrued or been acquired within the meaning of the ... Act." (R v Boland (1974) VR 849 at 860 per Adam, Little and McInerney JJ).

Constitution - Sections 80 and 109

15. Section 80 of the Commonwealth Constitution does not require that proceedings for contempt be dealt with by way of jury trial. Such proceedings are not "on indictment." As originally drafted the section applied to trials of "all indictable offences." However during the Constitution Convention an amendment was successfully moved to change the words "indictable offences" to the present "trial on indictment" so as to ensure that contempt and the less serious offences could be prosecuted summarily, see Pannam C "Trial by Jury and Section 80 of the Australian Constitution" (1968) 6 Sydney Law Review 1 at 3. Even the amendment proposed to section 80 in 1988 (which would have enlarged the right to jury trial, but was defeated) specifically exempted contempt proceedings from its operation (see Constitutional Alteration (Rights and Freedoms) Bill 1988).

16. In Brown v The Queen (1985-86)160 CLR 171 Gibbs CJ at 181 said "It has been held in a long line of cases ... that s 80 applies only if there is an indictment and that the Parliament is free to decide whether any particular offence, however serious, may be tried summarily."

17. In any case contempt of a NSW Court is an offence against NSW law. It is not an "offence against any law of the Commonwealth" as referred to in section 80 Constitution, see United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, The King v Fletcher; ex parte Kisch (1935) 52 CLR 248 at 2566-257, Director of Public Prosecutions v ABC (1987) 7 NSWLR 88 at 593. Further, the applicant's reliance on s 24 of the Judiciary Act 1903 (Cth) to invoke the application of s 80 is misplaced, as s 24 of the judiciary Act relates to the powers of the High Court to punish contempt of its own Court.

18. The Applicant relies on the Constitution of the united States and asks "Is an Australian less equal before the law than an American?". Article III of the US Constitution provides that "(t)he Trial of all Crimes ... shall be by jury ...". The US Supreme Court has held that this clause does not preclude the summary trial of contempt proceedings before State and Federal courts, except where the punishment imposed on conviction makes the offence a serious one, see Bloom v State of Illinois (1968) 391 US 194; Taylor v Hayes (1974) 418 US 488; International Union, United Mine Workers of America v Bagwell (1994) 512 US 821; Corpus Juris Secundum, Volume 50A, "Juries", pp 239-243. In any event, the provisions of the US Constitution do not govern the present application.

19. There is no inconsistency between the Supreme Court Act and Rules and any enactment of the Commonwealth Parliament, such as to invoke the application of s 109 of the Commonwealth Constitution.


The Respondent seeks costs (see Hinch v Attorney General (Victoria) at 89-90 contra Craven v Registrar NSW Court of Appeal (1995) 20 Leg Rep SL6).


Chia Gee v Martin (1905) 3 CLR 649
R v Fletcher; ex parte Kisch (1935) 52 CLR 248 at 256
John Fairfax & Sons P/L v McRae (1954-55) 93 CLR 351
Re Cusack (1986) 60 ALJR 302
Brown v The Queen (1985-86) 160 CLR 171
Hinch v Attorney General (Victoria) (1989) 168 CLR 15
Jago v District Court (NSW) (1989) 168 CLR 23
Witham v Holloway (1995) 183 CLR 525
R v Boland (1974) VR 849
Registrar of Court of Appeal v Willesee & Ors (1984) 2 NSW LR 378
Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 691-3
Director of Public Prosecutions v ABC (1987) 7 NSWLR 588 at 93, 595
Adler v District Court of NSW (1990) 19 NSWLR 317 at 332
United Telecasters Ltd v Hardy (1991) 23 NSWLR 323
Galea v NSW Egg Corporation Court of Appeal, 21 November 1989, Unreported
Chester v Bateson (1920) 1 KB 829 at 832 per Darling J
Supreme Court Act 1970
Supreme Court Rules
Holdsworth, History of English Law, 6th edition, volume 1 at pp 59-60, 385, 487
Holt, Magna Carta, 2nd edition, Cambridge University Press, 1992 at pp9-10
McKechnie, Magna Carta, 2nd edition, 1914 at pp 375-39
Pannam C "Trial by Jury and Section 80 of the Australian Constitution" (19668) 6 Sydney Law Review 1


The Applicant has sought to supplement his Summary of Argument with oral argument. Accordingly the Respondent will be represented and if required will present oral argument.

Dated the 20th day of October 1998

Peter Berman
A/Crown Advocate

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