Aboriginal Law Bulletin --- "Ellenbogan v Cullen and Anor (Contempt - whether refusing to remove an Aboriginal headband constitutes contempt)" [1990] AboriginalLawB 45; (1990) 1(46) Aboriginal Law Bulletin 17

• Ellenbogan V Cullen And Anor
• Contempt-Whether Refusing To Remove An Aboriginal Headband Constitutes Contempt

---

Ellenbogan v Cullen and Anor

Contempt - whether refusing to remove an Aboriginal headband constitutes contempt

Supreme Court of New South Wales: Smart J

30 July 1990

On September 4 1989 John Ellenbogan appeared in Penrith Local Court on charges of `remaining on enclosed lands' and `resisting arrest'. Mr. Ellenbogen was wearing a headband with two bands of black and red with a yellow circle in the middle

The magistrate ordered that Mr Ellenbogan be charged with contempt, for failing to remove the headband after being directed twice by the court to do so. He was found guilty and sentenced to imprisonment with hard labour for a period of 2 days.

Ellenbogan appealed to the Supreme Court of NSW on the basis that "the conviction was wrong in law because the wearing of the headband in question in court did not entitle the Magistrate to give a judicial direction for its removal".

The magistrate contended that the headband was a `protest' which would `interfere with the course of justice'.

Smart J considered the meaning of contempt,

"Words or conduct in the face of the court or in the course of proceedings, in order to constitute contempt `must be such as would interfere, or tend to interfere, with the course of justice': Parashuram Detaram Shamadsani v King-Emperor [1945] AC 264 at 268."

In the course of the judgement his honour reviewed a range of cases noting that it is not possible to create a universal definition, applicable to every instance of contempt. He stated,

"It is not every act of discourtesy by word or conduct that amounts to a contempt, and, indeed, the usefulness of the summary power depends upon the wisdom and constraint with which it is exercised (Parashuram at 270 and Izuora at 336). The power is to be used where it can be said that the conduct - active or inactive - is preventing or obstructing or tending to prevent or obstruct a trial from proceeding in the ordinary course of justice, fairly and impartially."

It was noted that Ellenbogen's refusal to remove the headband was central to the charge. Smart J states:

"If the ruling given were not reasonable or legitimate there could be no contempt. It is not possible by giving a ruling or direction which is not legitimate or reasonable to effectively render conduct contemptuous which would otherwise not be so classified".

His Honour found that wearing the headband would not `disrupt the due hearing or conduct of the proceedings' or undermine the `authority or dignity of the court'. He noted,

"The headband had the colours of either the Aboriginal flag or those of the Republic of West Germany. Just from the wearing of a headband displaying those colours it would be hard to draw any firm inference. Perhaps the inference may be drawn that he is German or supports Germany or that he supports the Aboriginal cause. That cause is diverse and includes such matters as landrights, preservation of Aboriginal culture, the improvement of their conditions and status in Australian society and the elimination of the disadvantages from which they suffer."

After considering the subjective meaning of the headband for the defendant, Smart J found,

"Wearing the headband in question does not have that element of seriousness which is the hallmark of contempt. A direction to remove it was not reasonable. It may have been discourteous or tactless not to do so in deference to the magistrates directions, but that is not the test."

Smart J found that the magistrate's determination was erroneous in point of law.

The appeal was allowed.