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CONTEMPT OF COURT

What is Contempt?

Contempt of Court is an act which has the tendency to interfere with or undermine the authority, performance, or dignity of the Court of those who participate in Court proceedings. Contempt of Court is an umbrella term which covers a wide range of conduct, which has the effect of undermining public confidence in the administration of justice.  Examples of Contempt include:

  1. Contempt in the face of Court:

  2. Refusing to take an oath or affirmation before the Court; or
  3. Refusal to give evidence or answer a subpoena; or
  4. Refusal to leave Court after being ordered to do so; or
  5. Insulting remarks made to Court officers or jury members
  6. Contempt by publication:

  7. Discussing with the media, evidence in proceedings or criticizing the way in which the parties involved decide to run their case; or
  8. Disclosure of prior convictions of persons accused of criminal offences, while proceedings are pending outcome; or
  9. Disclosing to the media documents or evidence relating to proceedings that are pending outcome.

  10. Disrespecting the Court:
  11. Refusing to bow on entrance to the Court; or
  12. Disrupting proceedings; or
  13. Swearing or yelling at judicial officers.
  14. Disobedience of Court orders

 

Civil or Criminal offence?

Contempt charges may be prosecuted as either a civil or criminal contempt, though generally it is the offended person who initiates civil contempt proceedings or the Court if the contempt involved breach of a court order. Contempt for breach of court orders or undertakings are regarded as Civil in nature unless the breach involves “deliberate defiance.” Despite its general civil classification, the criminal standard of proof applies to all contempts. This means that the charge needs to be proven beyond a reasonable doubt before a person may be found guilty of Contempt.

Given the seriousness of contempt, and the possibility of imprisonment upon a finding of guilt, the Courts have deemed it necessary to protect persons charged with contempt by requiring proof of guilt that leaves no room for doubt. If the prosecution is unable to establish all elements of contempt beyond a reasonable doubt, the defendant is entitled to an acquittal.

The purpose of civil contempt is to coerce the defendant to do the right thing required by the Order for the benefit of the complainant. On the other hand, the primary purpose of criminal contempt is to preserve the Court’s authority and to vindicate the authority of the Court.

Elements of Contempt

For a person to be found guilty of contempt in NSW, the prosecution must establish the following two elements beyond a reasonable doubt:

1. That the defendant engaged in conduct that has the tendency to interfere with or undermine the authority, dignity, or performance of the Court or those who participate in court proceedings; and

2. That the defendant intended to do the act.

Importantly, the prosecution is not required to prove that the defendant intended to actually interfere with the administration of justice – just that he or she intended to do the act, which when viewed by a reasonable person, had the tendency to interfere with the administration of justice.

For example, in a case where a person has been charged for contempt for refusing to give evidence,
the prosecution would not need to prove that the person intended to interfere with the administration of justice, but would need to establish, beyond a reasonable doubt, that the person intended to avoid giving evidence to the Court. When viewed reasonably, the person’s intention to avoid giving evidence would have the tendency to interfere with the administration of justice.

An exception to this relates to charges of contempt for disobedience of Court orders. In relation to disobedience of Court Orders, the prosecution must prove, beyond a reasonable doubt, the following elements:

1. An Order was made by the Court; and
2. The Order was sufficiently clear such that one can be sure, beyond reasonable doubt, that the Order was not complied with; and
3. The order was served on the alleged contemnor (defendant); and
4. The alleged contemnor (defendant) had knowledge of the terms of the Order; and
5. The alleged contemnor (defendant) breached the Order; and
6. The alleged contemnor (defendant) took a deliberate step, which, even if not intended, breached the Order.

It is clear from the above that in relation to disobedience of Court Orders, the prosecution is not required to prove that the defendant intended to breach the Order. All that is required to be proven is that the defendant breached the Order and took a deliberate action which had the effect of breaching the Order, regardless of intention.

Penalties

In NSW, contempt of Court is punishable under s 24 of the Local Court Act 2007 and s 199 of the District Court Act 1973, which carries a maximum penalty of 28 days imprisonment and/or a fine of 20 penalty units ($2,200). Contempt of Court is a serious offence and the Courts have consistently made clear that contempt should be used as a last resort and the Courts should not resort to a charge of contempt unless it is completely necessary to protect the proper administration of justice.

There are generally a range of penalties for charges of Contempt and the Court may apply any of the following penalties:

1. Community Correction Order – examples include community service work (up to 500 hours),
curfews (not exceeding 12 hours in a 24-hour period), participation in rehabilitation programs or supervision by a Community Corrections Officer; or

  1. Fine;
  2. Intensive Correction Order – examples may include community service work (up to 750 hours), home detention, electronic monitoring, or participation in a rehabilitation program; curfew or
  3. Imprisonment;

    5. Section 10 Dismissal – allows the Court to find a person guilty of contempt but discharge the matter without recording a conviction.

    How can we help?

    If you have been charged with contempt of Court, we can assist you to fight the charge in Court. Depending on the circumstances, we could rely on several defenses to preserve your innocence such as duress, necessity, or self-defense.

    If it is your first offence, we can help persuade the Court to dismiss a conviction by means of a ‘section 10.’ If we are successful, the charge will be made out, however you would avoid a conviction and further penalty.

    Contempt laws should not be taken lightly as the penalties can be detrimental to your career and future. If you have been charged with contempt, you should obtain legal advice. Please contact us immediately on (02) 9283 8588 immediately if you require advice or legal representation.

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