Contempt March 30, 2018
- CONTEMPT – contempt of court – improper pressure – interference with the administration of justice as a continuing process
The ‘broader’ category of contempt
- As referred to in the original judgment at -, the authorities recognise the distinction between contempt arising from conduct that interferes with the administration of justice in a particular case, and interference with the administration of justice generally.
- In Attorney-General v Leveller Magazine Ltd  AC 440;  1 All ER 745, Lord Diplock observed at 449:
My Lords, although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court not the individual court or judge who is attempting to administer it.
- Echoing Lord Diplock’s reasoning, Lord Edmund-Davies said at 465:
For that to arise something more than disobedience of the court’s direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice either in the particular case in relation to which the prohibition was pronounced or in relation to cases which may be brought in the future. So the liability to be committed for contempt in relation to publication of the kind with which this House is presently concerned must depend on all the circumstances in which the publication complained of took place.
- Lord Scarman also observed in this case at 469:
The law does not treat any, or every, interference with the course or administration of judgment as a contempt. The common law rule which was affirmed by this House in Scott v Scott  AC 417 is that the interference must be such as to render impracticable the administration of justice or to frustrate the attainment of justice either in the particular case or generally.
Further, since such interference is a criminal offence, the court to whom the application to commit is made, must be satisfied beyond reasonable doubt that the interference is of such a character.
- The existence of contempt being an interference with justice of a more general kind has been accepted by Mahoney JA in The Prothonotary v Collins (1985) 2 NSWLR 549 at 554 (referring, inter alia, to interference with prospective jurors) and McHugh JA in the same case at 565-7. McHugh JA observed at 565:
Attorney-General v Leveller Magazine Ltd (at 449) shows that lack of evidence of any tendency to interfere with the hearing of a particular case is not necessarily fatal to counsel’s submissions. It is still open for the plaintiff to make a case that the distribution of the pamphlet constituted an interference with the administration of justice as a continuing process.
- In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, Gibbs CJ, Mason, Wilson and Dean JJ observed (references omitted):
As Lord Diplock said in Attorney-General v Leveller Magazine Ltd, criminal contempts ‘… all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process’.
- See also: Mirus Australia Pty Ltd v Gage  NSWSC 1046 at -, - per Ward CJ; Re Coroner’s Court of Western Australia; Ex Parte Porteous  WASCA 144 at - per Steytler J; McCabe v British American Tobacco  VSC 73 at  per Eames J (noting the outcome of this judgment on appeal). With respect to interference with the administration of justice with respect to ‘threatened’ or pending litigation see Commercial Bank of Australia v Preston  2 NSWLR 554 at 565 and 567 per Hunt J. His Honour observed at 565 of this case (emphasis added):
I am satisfied that a threat made to or interference with a party to threatened litigation which is either intended or (subject to whether it is accurately and temperately expressed) calculated to inhibit him in commencing, continuing or defending that litigation is within the wider or more general kind of contempt of court in relation to which the actual pendency of the proceedings is irrelevant. This is because … there will be an inhibiting or deterrent effect upon all prospective parties who seek to have their legal rights and obligations ascertained and enforced by the courts …
- In Connolly v Dale  QB 120, Balcombe LJ stated at 125:
The relevant principles of law can be stated in the following propositions. (1) It is a contempt of court to engage in any conduct which involves an interference with the due administration of justice either in a particular case or, more generally, as a continuing process: per Sir John Donaldson MR in Attorney-General v Newspaper Publishing Plc  Ch 333, 362. (2) Interference with witnesses or potential witnesses by threat, promise or subsequent punishment is a contempt: R v Kellett  QB 372; Attorney-General v Butterworth  1 QB 696. In our judgment, the concept of interference with witnesses extends to interference with proper and reasonable attempts by a party’s legal advisers to identify and thereafter interview potential witnesses. There was no case cited to us in which that precise form of conduct had previously been found to be a contempt, but we bear in mind the observation of Lord Denning MR in Butterworth’s case, at p 719, that in such a case the general principle of protecting proceedings from interference should prevail, and the further emphasis of that point by Sir John Donaldson MR in Attorney-General v Newspaper Publishing Plc  Ch 333, 368D. (3) Interference with a solicitor in the discharge of his or her duties can also constitute a contempt of court: see In re Johnson (1887) 20 QBD 68, 74, per Bowen LJ.
- His Honour also observed at 125-6:
Accordingly there can be no doubt that the actus reus of the offence of contempt is established in the present case. The issue for our decision is whether the element of mens rea is also established. For present purposes we assume, without deciding, that it is necessary to prove an intent to interfere with the course of justice: see Attorney-General v Newspaper Publishing Plc  Ch 333, 374, 383. In so saying, we bear in mind that, as in the case of ‘wilful’ obstruction, with which we deal below, an intention to interfere with the course of justice connotes an intention to bring about a state of affairs which, objectively construed, amounts to such interference: see, in the context of ‘an intention to obstruct,’ per McCullough J in Hills v Ellis  QB 680, 686B. Even though we accept that the detective superintendent’s motive was benign, in the sense that he was motivated to prevent the contamination of the proposed identification parade, his intent, as is apparent from the facts set out above, was deliberately to prevent the applicant’s solicitors from having full and unimpeded access to potential alibi witnesses.
- In Attorney-General v Newspaper Publishing Plc  Ch 333, Sir John Donaldson MR noted at 362 the distinction between contempts as: ‘(a) conduct which involves a breach, or assisting in the breach, of a court order and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such interference being a characteristic common to all contempts: per Lord Diplock in Attorney-General v Leveller Magazine Ltd  AC 440, 449’.
- His Honour also observed at 368, ‘[t]he law of contempt is based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice. Its application is universal. The fact that it is applied in novel circumstances, for example to the punishment of a witness after he had given evidence (Attorney-General v Butterworth  1 QB 696), is not a case of widening its application. It is merely a new example of its application’.
- His Honour said at 374-5:
I am quite satisfied that what is contemplated, and what is ‘saved,’ is the power of the court to commit for contempt where the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire: see per Lord Bridge of Harwich in R v Moloney  AC 905, 926.