Neate, Graeme --- "Tippett v Murphy (Appeal against conviction for contempt of court - lawyer convicted by magistrate under s. 46 Justices Act - disrespectful conduct - sparing use to be made of s. 46 power against legal practitioners)" [1982] AboriginalLawB 69; (1982) 1(6) Aboriginal Law Bulletin 12

• Tippett V Murphy
• Appeal Against Conviction For Contempt Of Court-Lawyer Convicted By Magistrate Under S. 46 Justices Act-Disrespectful Conduct-Sparing Use To Be Made Of S. 46 Power Against Legal Practitioners

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Tippett v Murphy

Appeal against conviction for contempt of court - lawyer convicted by magistrate under s. 46 Justices Act - disrespectful conduct - sparing use to be made of s. 46 power against legal practitioners

Supreme Court of the Northern Territory (Muirhead.ACJ)

3 September 1982

Casenote by Graeme Neate

The appellant, a lawyer with the Central Australian Aboriginal Legal Aid Service, was appearing on behalf of an accused Aboriginal in committal proceedings before the respondent, a magistrate. The Crown wanted to call as a witness an Aboriginal woman who regarded herself, and was regarded by the accused and their community, as the wife of the accused. They had not gone through a recognised legal form of marriage.

Section 9 of the Evidence Act (NT) provides inter alia that in a criminal proceeding against her husband, the wife of an accused person shall not be compellable to give evidence. The appellant argued that the woman should receive the protection of the section because she was tribally married to the accused. The magistrate held that, as the marriage was not in accordance with the law, she was a compellable witness.

The woman was called and sworn. The appellant objected to leading questions asked of her. Following a later exchange with the magistrate, the appellant was charged with contempt of court and proceedings were adjourned to enable the appellant to be legally represented. He was not given an opportunity to protest, explain or apologise. The next day the magistrate charged him with an offence under s.46 (1) (b) of the Justices Act (NT) which reads:

Any person who ... (b) Conducts himself disrespectfully to the justice or justices during the sittings thereof ... shall be guilty of an offence. Penalty $20 or imprisonment for one month.

The magistrate found the charge proved and the appellant was convicted and fined $10, with provision for imprisonment in default of payment.

Muirhead ACJ, after satisfying himself that the Supreme Court had jurisdiction to deal with the appeal and that the nature of the appeal was a rehearing, noted that the `broad nature of the appeal does not, of course, justify this court in lightly interfering with the findings of the magistrate'. His Honour dealt with the matter `on the basis that it was the words themselves which formed the basis of the conviction'. He recognised that `apparently innocuous words may be insulting or disrespectful by the very method of their enunciation and delivery' and, as well as examining the transcript closely, listened to the tape-recording of the incident. Thus he could assess `the manner, not only in which the appellant addressed the magistrate, but the manner and tone with which the magistrate spoke to the appellant as counsel appearing before him'.

The incident arose when the appellant objected to the form of a question put to the witness. The question was reframed and put again. According to Muirhead ACJ:

Before the witness had opportunity to answer the magistrate said, in a manner which I can only describe as loud and forceful:

"Mr Tippett, would you conduct yourself in a proper manner. If you have any gripes about my decision - I found it difficult to give just as much as you may have had of taking it. If you have an objection, stand up and make your objection."

The manner and tone in which this was so suddenly put to the appellant, the choice of words and the final invitation was such as to evoke a reply from counsel, a reply which might in the circumstances not be very well considered.

The reply was in the following terms, being delivered in a quiet manner, the respectful appellation "Your Worship" was neither overlooked nor said with any, tone of disrespect:

"The whole situation is a farce, Your Worship., forcing this woman to give evidence against her husband when she clearly does not want to do so. If she were a white person, she would not be required to do so. It seems tome to make a mockery of the whole court process, Your Worship."

That, of course, did not improve the situation, but it was in the nature of things that a reply of some sort should be made. If one bears in mind the background to this matter the reply was understandable, coming from counsel vested with the responsibility for his client's defence and whose professional duties were largely concerned with Aboriginal people. It would have been better not made and perhaps it evidenced some frustration and cynicism. But I am entirely unconvinced that it was, or could properly be interpreted as disrespectful to the magistrate himself or to his court, that it could be classified, as the magistrate classified it, as a `comment in contempt of court".... The appellant, who I consider was called upon to reply, was surely referring to "the situation" in which the law required this witness to give evidence against her "husband". His comment that she "clearly does not want to do so" was fair comment and his observations which related to racial disadvantage, whilst again perhaps better not made, obviously related to the law in this sphere not recognising tribal marriages. His final words were an unnecessary comment, but expressed concern for the processes of justice. ... I consider the magistrate erred in finding himself satisfied beyond reasonable doubt that the appellant thereby conducted himself disrespectfully and as a matter of law I do not consider the words, said as they were, were such as to be capable of constituting an offence against section 46 (1) (b).

His Honour cited and quoted from a number of decisions about the power of courts to deal with contempt, and the restraint with which it is exercised, especially with respect to methods of advocacy. (Ex parte Bellanto, Re Prior (1963) SR NSW 190 at 201; Parashuram Deteram Shamdasani v King Emperor (1945) AC 264; R v The Commissioner of Police, Ex parte Blackburn (No 2) (1968) 2 QB 150 at 154,155). He expressed caution in drawing too much upon these `contempt' authorities, as the offence was a breach of a statutory provision. But the magistrate initially charged the appellant with contempt and referred to contempt in the subsequent proceedings. The summary powers given in s. 46 are to prevent interference with the functions of the courts of summary jurisdiction and `are designed to cope with contemptuous behaviour.'

It was the view of Muirhead ACJ that:

The section will generally apply to lay persons. ... That is not to say that it should not be applied where the disrespect is manifest and where it does constitute an interference with the court process. But I do regard those authorities which called for sparing use of contempt powers as important and relevant. As Lord Denning has emphasised, it is not the feelings of the judges which matter, it is interference with the processes of justice which are of concern.

His Honour later continued:

Out courts function . because of traditional discipline and respect which exists between the bench and the bar ... The roles of the barrister, magistrate and judge are different, but the goal is a mutual one: the proper administration of justice, an important goal to maintain if we seek a free and just society. The barrister's role requires energy and the freedom to plead his client's. case with vigour. All concerned must at times exercise restraint and understanding of the pressures to which all are subject. At times there are brushes and misunderstandings; these are part and parcel of litigation. But justice will suffer if practitioners appearing before a court are constrained in the performance of their responsibilities by feat of finding themselves charged with a quasi criminal offence by reason perhaps of excess of enthusiasm or comments made in exchanges with the bench, particularly unguarded comments ... If professional misconduct occurs, it can always be dealt with under the Legal Practitioners Act.

In quashing the conviction, His Honour added that `the evidence fell far short of that required to establish contempt within the usual meaning of that doctrine'.

Mr H. Spooner of the CAALAS appeared for the appellant.

Mr Hiley instructed by Mr D. Norman appeared for the respondent.