THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Monday 16 March 1998
12914/97 THE PROTHONOTARY v John WILSON
HIS HONOUR: The defendant, John Wilson, is alleged to have thrown paint at Murray AJ after his Honour delivered a judgment adverse to him on 5 September 1997. As a
result, the Chief Judge at Common Law, pursuant to Pt 55 r 11(1) of the Supreme Court Rules, directed the Prothonotary to commence proceedings against the defendant for contempt. On 14 October 1997 the Prothonotary,
as plaintiff, issued a summons against the defendant seeking a declaration that he was in contempt and an order that he be dealt with accordingly.
On 5 September 1997, the day of the incident, the defendant
was also charged by police with an offence under s 326(1) of the Crimes Act of threatening injury or detriment to a judicial officer. The Director of Public Prosecutions assumed the conduct of those proceedings on
21 October, and they have been adjourned at the Downing Centre Local Court to abide the outcome of the proceedings in this court.
The contempt proceedings are to be dealt with summarily and are now for
hearing on Thursday next, 19 March 1998. On 13 February 1998 I heard an application by the defendant that the alleged contempt be the subject of trial by jury. I should record that on 24 November 1997 the defendant
issued a summons in the Court of Appeal seeking the same order, and the matter was listed for hearing in that court on 15 December. On 3 December the defendant sought from Dunford J a stay of proceedings upon
the Prothonotary's summons pending the hearing in the Court of appeal, but his Honour refused to grant a stay on the basis that any submission that he was entitled to trial by jury for contempt was without
substance: The Registrar of Court of Appeal v Willesee & Ors (1984) 2 NSWLR 378. In the event, on 15 December the summons in the Court of Appeal was withdrawn.
The application before me must also be
dismissed for the same reason that Dunford J refused to grant a stay. Willesee is clear authority for the proposition that trial by jury for contempt is obsolete and that summary trial is now the normal procedure.
Before me, the defendant was represented by counsel who tried valiantly, but unsuccessfully, to find some way around that decision. He referred to Cap. 29 of Magna Carta, affirming the right to trial by one's
peers, and its incorporation into the law of New South Wales by s 6 of the Imperial Acts Application Act 1969. However, by that section, various imperial enactments have the force of law in New South Wales
"except so far as affected by ... State Acts from time to time in force in New South Wales": s (b). In Galea v New South Wales Egg Corporation (C of A, unreported, 21 November 1989) Kirby P (at p 11)
observed that this "would appear to envisage the affection and modification of the continuing application of the enumerated Imperial Acts by ordinary legislation enacted by the State Parliament. Accordingly,
any guarantee of trial by jury in Magna Carta can be, and has been, overridden by the Supreme Court Act and Rules as far as contempt is concerned.
Counsel made reference to the guarantee of trial by jury in
respect of indictable offences against any Federal law in s 80 of the Commonwealth Constitution. In oral argument he acknowledged that s 80 is concerned only with Commonwealth offence and, as I understand it, his
reference to the section was merely as part of the history of the development of trial by jury in this country, and as an indication of the respect afforded to that method of trial. For the plaintiff, the Crown
Advocate queried whether any submission based on s 80 might involve a matter arising under the Constitution so as to require the procedure under s 78B of the Judiciary Act 1903 to be followed. When I reserved
judgment I invited counsel for the defendant to provide submissions in writing if he wished to proceed in accordance with s 78B of the Judiciary Act would be considered. As it happened, Mr Wilson withdrew his
instructions from his legal advisers shortly thereafter. He has since forwarded some written material to me which refers to s 80 of the Constitution, but takes the matter no further. I am satisfied that the
proceedings before me do not involve a matter arising under the Constitution or involving its interpretation, and s 78B of the judiciary Act has no application.
A submission was also made that the prosecution
under s 326 of the Crimes Act, which would be on indictment, should proceed in advance of (or perhaps instead of) the contempt proceedings, so as to afford the defendant the benefit of a trial by jury. This argument
alas is without substance. As the Crown Advocate pointed out, the deferral of the prosecution under s 326 is a legitimate exercise of prosecutorial discretion and this court could not compel the Director to take
some other course.
Accordingly, the application for trial by jury in respect of the alleged contempt must be dismissed.
I certify that this and the 2 preceding pages are a true copy of the
judgment herein of the Honourable Justice peter Hidden