The court’s powers in relation to contempt are found in s 24 Local Court Act 2007. Those powers are the same as the District Court with respect to contempt of court committed in the face or hearing of the court: s 24(1). See also Criminal Trial Courts Bench Book at [1-250]ff; Sentencing Bench Book at [2-120; Civil Trials Bench Book at [10-0000]ff.

Contempt in the face of the court is an act which has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings: Witham v Holloway (1995) 183 CLR 525 per McHugh J at 538–539.

Examples of contempt in the face of the court include:

Generally, rudeness and even extreme discourtesy by legal practitioners, will not be considered to be contempt: Toner v Attorney General (NSW) (unrep, 19/11/91, NSWCA). Further, like police, judges and magistrates are, by their training and temperament, able to resist the sting of insults directed to them: see Coleman v Power (2004) 220 CLR 1 at [200]. Further, charging for contempt simply because language was used in anger would “probably be quite wrong”, depending on the relevant evidence: Ferguson v Walkley (2008) 17 VR 647 at [36].

In the Local Court, all options other than a summary charge of contempt should be considered first. Summary proceedings should only be instituted where it is urgent and imperative that the punishment be immediate. Summary proceedings are a last option, should be exercised with restraint, and only used in exceptional circumstances: Keeley v Brooking (1979) 143 CLR 162.

In hearing the matter summarily, the magistrate may have four inimical functions: the victim, a witness, the prosecutor and the judge of fact and ultimately of penalty, which is so exceptional that, though it may sometimes be required to deal peremptorily with an emergency situation, those occasions will be rare: European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 452. It is a power to be used sparingly and in serious cases: Ex p Bellanto; Re Prior [1963] NSWR 1556 at 1566.

Other options that should be considered include:

The decision to proceed to a charge for contempt is a power to be used sparingly and only in serious cases. Its usefulness depends upon the wisdom and restraint with which it is exercised: Ex p Bellanto; Re Prior [1963] NSWR 1556 at 1566.

Section 24(4) Local Court Act 2007 enables the court to refer a matter to the Supreme Court for determination where it:

In either case, before exercising its power of referral, the court must afford procedural fairness to a proposed contemnor, by giving them the opportunity to make submissions: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 at [59], [77]. Failing to do so may render subsequent proceedings in the Supreme Court a nullity: Prothonotary of the Supreme Court of NSW Chan (No 23) [2017] NSWSC 535 at [64].

This is because the referral power involves potential prejudice to the alleged contemnor, as the penalty available in the Supreme Court is greater than in the Local Court: Dangerfield at [56]; Chan at [29].

Further, in instances where the Local Court comes to its own view that a person is in contempt, the referral of the matter to the Supreme Court requires proceedings to be commenced by the Prothonotary. There is no capacity for a referral to the Prothonotary to obtain advice as to whether or not proceedings should be commenced: Chan at [54].

Exercising the power of referral requires the court to make two decisions:

In the unlikely circumstance the magistrate decides to deal with the matter summarily in the Local Court, the magistrate should orally charge the contemnor.

Note:

the Local Court only has summary power to deal with contempt in the face of the court (see [48-020]).

If the contemnor is not present a warrant may be issued: s 24(1) and (3) Local Court Act 2007, s 199 District Court Act 1973.

The charged person must be afforded a reasonable opportunity to make a defence to the charge, which will in most cases require an adjournment and the provision of information on legal aid. It is possible, but would be unusual, for the charged person to be held in custody. Bail must be considered: s 90 Bail Act 2013.

Where there is a plea of not guilty, a hearing is required. The magistrate is entitled to make use of his or her own observations, and should inform the defendant of these. Witnesses may be called by the court. The defendant has a right to, but is not obliged to give and call evidence. After the hearing, the magistrate determines the matter of the charge with the criminal standard of proof required: Coward v Stapleton (1953) 90 CLR 573.

If the defendant is found guilty, the court may punish by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days: s 24 Local Court Act 2007; s 199 District Court Act 1973.

The power to punish for contempt is exercised to vindicate the integrity of the court and of its proceedings, and is rarely if ever exercised to vindicate the personal dignity of a judge: Lewis v Ogden (1984) 153 CLR 682.

The Crimes (Sentencing Procedure) Act 1999 does not apply when sentencing for contempt: Dowling v Prothonotary of Supreme Court of NSW (2018) 99 NSWLR 229 (Basten JA with Meagher JA agreeing) at [46]–[54]. However, the statutory considerations in ss 3A, 5(1) and 21A of that Act generally reflect common law principles, which remain applicable: Prothonotary of the Supreme Court of NSW v Patrick (a pseudonym) [2023] NSWSC 1077 at [17].

For a summary of the sentencing principles and penalties for contempt, see Council of NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390 at [60]–[74].

For considerations on penalty for abuse to the court: see Prothonotary of the Supreme Court of NSW v Hall [2008] NSWSC 994.

For considerations on penalty for refusing to give evidence: see Principal Registrar of Supreme Court of NSW v Tran (2006) 166 A Crim R 393 which includes a schedule of comparable sentences for contempt of that type.

See also Sentencing Bench Book at [20-155] Common law contempt of court.

Generally, contemnors should be given an opportunity to purge their contempt, particularly where there is a refusal to give evidence: Smith v R (1991) 25 NSWLR 1. There is an overriding power to discharge a contemnor prior to the expiration of sentence: s 24(2) Local Court Act 2007.

An accused person, defendant, party to, or person called to give evidence in proceedings before the court commits an offence if they intentionally engage in behaviour in court during the proceedings which is disrespectful to the court or presiding magistrate: s 24A(1) Local Court Act 2007. The maximum penalty is 14 days imprisonment and/or 10 penalty units.

The offence does not apply to police prosecutors or Australian legal practitioners when they are acting in those capacities: s 24A(3).

“Behaviour” includes any act or failure to act: s 24A(2).

Whether behaviour is disrespectful to the court is determined according to established court practice and convention (s 24A(1)(c)), not according to the person’s knowledge of established court practice and convention: Elzahed v Kaban [2019] NSWSC 670 at [45].

The elements of an offence under s 200A(1) District Court Act 1973, in identical terms to s 24A(1), were discussed in Elzahed v Kaban. The offence criminalises certain behaviour in a two-step process:

The prosecution must prove each beyond reasonable doubt. The mental element is that the act or omission in s 24A(1)(b) be intentional, and not an intention that the behaviour is disrespectful in s 24A(1)(c) as this is established by reference to court practice and convention: Elzahed v Kaban at [37]–[38], [45], [56], [73], [86].

Proceedings for offences of disrespectful behaviour in any court are summary in nature and are to be dealt with in the Local Court: s 24A(4)(b) Local Court Act 2007; s 200A(4) District Court Act 1973; s 131(4) Supreme Court Act 1970; s 67A(4) Land and Environment Court Act 1979; s 103A(4) Coroners Act 2009, unless the person is a child in which they are to be dealt with in the Children’s Court: s 24A(4)(b) Local Court Act. Note the Supreme Court may also hear disrespectful behaviour offences committed in that court in its summary jurisdiction. Note the Supreme Court may also hear such offences arising from conduct in that court in its summary jurisdiction.

Such proceedings:

A magistrate can refer disrespectful behaviour in proceedings over which they presided to the Attorney General: s 24A(7).

An official transcript or official audio or video recording of the proceedings is admissible in evidence and is evidence of the matter included in the transcript or audio or video recording: s 24A(9). The relevant magistrate cannot be required to give evidence in the proceedings: s 24A(10).

Proceedings for contempt may still be brought in respect of behaviour that constitutes an offence against s 24A(1), but a person cannot be prosecuted for both: s 24A(11) and (12).

General deterence is an important consideration for offences of disrespectful behaviour: Elzahed v Kaban [2019] NSWSC 1466 at [83]. In that case Harrison J dismissed an appeal against a sentence of 75 hours community service for offences against s 200A District Court Act 1973. His Honour concluded that a s 10 order was not appropriate because the offending was not trivial, involving multiple offences directed to the maintenance of respect for the judicial process: Elzahed v Kaban at [81]–[82]. In rejecting a submission that recording a conviction carried an element of extra-judicial punishment, his Honour said at [84]:

On sentence, no distinction should be drawn between the term “judge” and “court” for the purposes of an offence, as references to both do no more than inform the task of determining whether the conduct in question is disrespectful; the judge is the personification of the court: Elzahed v Kaban at [19]–[20].