Annexure "H":
Wilson vThe Prothonotany S127/1998 (16 April 1999)
Court of Australia Transcripts
Wilson v The Prothonotary S127/1998 (16 April 1999)
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S127 of 1998
B e t w e e n -
JOHN WILSON
Applicant
and
THE PROTHONOTARY
Respondent
Application for special leave to appeal
GAUDRON J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 2.17 PM
Copyright in the High Court of Australia
GAUDRON J: Yes, Mr Wilson, you appear for yourseIf do you?
MR J. WILSON: Yes, your Honour.
GAUDRON J: Yes, thank you.
MR T.L. BUDDIN. SC: May it please the Court, I appear on behalf of the respondent
(instructed by the Crown Solicitor for New South Wales)
GAUDRON J: Yes, Mr Wilson
MR WILSON: I would like to start off with a few words as an introduction. I have made copies of these words, which I would like to
read to the Court. Would your Honours like copies to follow the words?
GAUDRON J: We have a transcript, thank you.
MR WILSON: OK. Contempt of court if contempt of court, whether it occurs inside or outside any
court in the lan& Contempt of court is the interference with the administration of justice, and is an offence against common law. Common law is a law of the States and it is a law of the Commonwealth. Section 80 of the
Australian Constitution guarantees trial by jury on indictment of any offence against any law of the Commonwealth. Indictment includes an information and a presentment. There are no State laws which preclude trial by jury for
contempt of court, and if there were, they would be invalid under section 109 of the Australian Constitution, and the covering clause of the Constitution Act, UK, says that:
This Act, and all laws made by the Parliament
of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State;
Covering clause 6 says:
"The States" are parts of the Commonwealth.
As an Australian I am a subject of the Queen, and am entitled to the protection of the Crown and the charters such as Magna Carta,
which guarantees the inalienable right of trial by jury. This right is further protected by other charters of the Crown, such as the Bill of Rights 1688 and the Petition of Right 1627. These rights and freedoms have been fought
for and died for by countless generations of men and women. Lest we forget. These charters are listed in the New South Wales ImperialActs Application Act 1969 and an offence against them is punishable by imprisonment
English common law and the rights and freedoms granted by the charters of the Crown are our heritage because we are a constitutional monarchy, and we are under the Crown of the United Kingdom and Great Britain and Ireland.
These rights and freedoms are yours and mine. They belong to our children and our grandchildren. They belong to your children and grandchildren.
When what is now the United States of America broke away from the Crown,
they were forced to draw up their Declaration of Independence to ensure the continuance of these same rights and freedoms, and their system ofjustice is founded on, and reliant upon, those charters of the Crown.
The role
of the jury in the protection of liberty has been emphasised by numerous authorities and the High Court has the power to direct trial by jury in any suit This case is of national importance because (a) it is in defence of
Australians' rights, and (b) it exposes the seriousness of judicial corruption. I have documented my experiences through the courts over the last three years and ordinary people are amazed and horrified at what has happened.
Contempt of court is a serious offence and it is the only vehicle to bring the seriousness of judicial corruption before the people. A conviction for contempt of court is personally very serious to me because it would
mean deregistration as a dentist and the destruction of my livelihood, which in turn would mean the dispossession of my home and the devastation of my family.
Trial by jury is trial by the country. With our heritage and
the very survival of democracy at stake, the people must be educated and learn what is happening.
Judges are academics, and the weakest element in our community. They must be protected against subversion and must never
be given absolute power whereby they can conceal their own incompetence, corruption and treachery. They have sworn to do right, but when they fail they must be accountable to the people. Without trial by jury for contempt of
court, judicial corruption knows no bounds. That is my introduction. I have also filed --
GAUDRON J: Mr Wilson, you must address yourself to the question of error in the court below.
MR WILSON: That is my
establishment, the fact that Justice Hidden has denied the right to trial by jury, and that is the error. It is a guarantee under Magna Carta and Magna Carta is in force in Australia That is the error. And what I am appealing
for now is that Justice Hidden's ruling that Magna Carta has been overridden should be struck out, and that I am allowed my right to trial by jury.
The importance of trial by jury has been emphasised by many authorities.
I have, and you have, the case of Brown v The Queen . In that the judges in the High Court emphasise the important role the trial by jury has in the administration of justice. On page 179 Chief Justice Gibbs said:
"The requirement that there should be trial by jury was not merely arbitrary or pointless. It must be inferred that the purpose of the section must be to protect the accused - in other words, to provide the accused with a
"safeguard against the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge" -
He goes on to say:
"the jury is a bulwark of liberty, a protection against tyranny
and arbitrary oppression, and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral advantages (e.g., it involves ordinary members of the public in the
judicial process and may make some decisions more acceptable to the public) -
This is a common theme in the High Court.
GALLDRON J: Yes, but now, Mr Wilson, the procedures for dealing with contempt are dealt with
in the rules of the Supreme Court, are they not?
MR WILSON: They are dealt with in a number of courts. They are dealt with in the High Court as well.
GAUDRON J: Well, so far as you are concerned, the procedures
are dealt with in the Supreme Court Rules, are they not?
MR WILSON: No. in fact, I have a letter from the Supreme Court of New South Wales - I am sorry I did not put this one in - but it is from the Chief Executive
Officer and Principal Registrar of the Supreme Court. The second paragraph says:
"There is no State legislation which makes contempt of court an offence.
GAUDRON J: Yes, but the procedures for dealing with
contempt are set out, are they not, in the Supreme Court Rules?
MR WILSON: Yes, and I can find nowhere where they preclude trial by jury.
GAIJDRON J: Do they say you can have trial by jury?
MR WILSON: It is my right to have trial by jury, and I am demanding that I have my right
GAUDRON J: Well, that is what you have to establish. You cannot simply assert it, Mr Wilson, you have to establish it.
MR
WILSON: Trial by jury for contempt of court is the will of the people. There was a referendum in 1988 whereby the politicians tried to change section 80 of the Constitution to exclude trial by jury for contempt of court, and
the people said - - -
GAUDRON J: That is contempt of a court exercising federal jurisdiction.
MR WILSON: Contempt of court is contempt of court whether it is in any court of the land, inside or out In the
Constitution it does not say anything to the contrary. Contempt of court is contempt of court, and the people expressed themselves very clearly by an overwhelming majority that trial by jury shall not be exempt for contempt of
court. You have the voting figures there, you have the proposed alteration and that was rejected overwhelmingly by the people. It is the will of the people that there should be trial by jury for contempt of court.
The
other side, the opponents, quote Willesee back in 1984 in which the judges then said that the practice of trial by jury for contempt of court was "obsolete". According to Magna Carta, the rights have been granted
forever. So something that has been granted forever can never become obsolete. And also, in the Bill of Rights and also in the Petition of Right referring to - in fact the Petition of Right actually restates Magna Carta. There
is a section where it says that:
"No freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful
judgement of his peers, or by the law of the land.".
and the law of the land is the Constitution, which guarantees trial by jury.
GAUDRON J: Now, would you like to read section 80 of the Constitution, Mr Wilson?
MR WILSON: Read section 80?
GAUDRON J: Yes, that is what - and see exactly what it relates to.
MR WILSON: I will read section 80 of the Constitution. It says:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury-- -
GAUDRON J: That is right, "against any law of
the Commonwealth". You are charged with contempt of court of the Supreme Court of New South Wales.
MR WILSON: Which is part of the Commonwealth.
GAUDRON J: Well, it maybe part of the Commonwealth, but it deals with - - -
MR WILSON: You cannot exclude New South Wales from the Commonwealth.
GAUDRON J: - - - it deals with a distinct area of judicial power. It
involves a distinct area of judicial power.
CALLINAN J: Mr Wilson, both the Commonwealth - - -
MR WILSON: I am a bit hard of bearing and I ask you to speak louder.
CALLINAN J Both the Commonwealth and the States in Australia can make laws.
MR WILSON: And any law of a State - - -
CALLINAN J: No, no, you just listen to me for a moment ---
MR WILSON: - - - which is inconsistent with a law of the Commonwealth is invalid under section 109.
CALLINAN J: No, Mr Wilson, you are not understanding what I am saying. They each can have laws within their own areas of
power and the States have power to make laws for the regulation of the State courts, and that is, in effect, what you are charged with, breaking a law made for the regulation of proceedings in the State courts.
MR
WILSON: And if that law is inconsistent with a law of the Commonwealth, that is invalid. And as reinforced by the Bill of Rights and by the Petition of Right, which says:
"noe Declarations Judgments Doeings or
Proceedings to the Prejudice of the People in any of the said Premisses ought in any wise to be drawne hereafter into Consequence or Example."
So, the precedent with Willesee where they said that - which is "to
the Prejudice of the People" -is null and void. And also in the Bill of Rights it says the same thing:
"that the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not
be drawn hereafter into consequence or example" -
So any time a court tries to disadvantage or take rights away from the peoples, those rulings are of no example, they are invalid.
There have been many
learned people talk about the importance of trial by jury. I would refer to Chapter 1 of this essay by Lysander Spooner, and there they go to the importance, the fact that trial by jury is:
a "palladium of
liberty" - a barrier against the tyranny and oppression of the government - they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
So, in
other words, only by putting such an important issue as contempt of court to the people can there be justice, and the court is purely here to administer justice, whether it is the High Court, Supreme Court or any court.
So, also the Universal Declaration of Human Rights, which is the United Nations Charter, also emphasises the importance of having "a fair and impartial tribunal". I cannot get a fair or impartial tribunal from any
judge because I have found in the last three years, as I have put in this leaflet, which I have also submitted to the Court, that in my experience "Australian judges are liars criminals and traitors", and I have
listed their offences. I have gone into more detail in the publication which you also have before you in chapter 12, "What Crimes Have the Judges Committed". Now I list there the offences such as "Concealing a
serious offence" " perverting the course of justice", "Judicial corruption". And there is no way other than trial by jury can I get an impartial tribunal
So, fundamentally, the Constitution,
section 80, guarantees trial by jury for any offence against any law of the Commonwealth and New South Wales is part of the Commonwealth. The will of the people must be respected. The will of the people was expressed in the
referendum of 1988 in which they overwhelmingly ruled out any question that contempt of court shall be exempt from trial by jury.
So I can only say that in the interests of justice, there can only be trial by jury in my case. Thank you.
GAUDRON J: Thank you, Mr Wilson. We need not hear you, Mr Buddin.
The applicant's argument fails to
distinguish between State laws regulating procedures in State courts and offences against the laws of the Commonwealth- Section 80 of the Constitution has nothing to say as to the former. It follows that the decision of the
Court of Appeal is correct and special leave is refused.
MR WILSON: Could I interrupt there? Can the Court prove to me legally that I have no entitlement to trial by jury?
GAuDRON J: Do you seek costs, Mr Buddin?
MR BUDDIN: No, your Honour.
GAUDRON J: Special leave is refused, Mr Wilson, and the Court will now adjourn.
AT 2.36 PM THE MATTER WAS CONCLUDED
THIS AND THE PRECEDING 5 PAGES IS THE ANNEXURE MARKED "H" REFERRED TO IN
THE AFFIDAVIT OF ...Natalie Jane Adams..
SWORN AT ..Sydney..
THIS ..17TH ..DAY
OF ..May..2000
BEFORE ME ??????
Solicitor
Annexure "I"
CS: CAT: 2
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SULLY J
MONDAY, 6 SEPTEMBER 1999
12914/97 - THE PROTHONOTARY V JOHN WILSON
JUDGMENT
HIs HONOUR: Before the Court is an application filed on 19 August last by Mr John Wilson. Mr Wilson seeks, put shortly, trial by jury of a charge, that has been current against him for better
than a year, of contempt of court.
Hidden J of the Court, in a reserved judgment delivered on 16 March 1998 held, for reasons which are set out in full in the judgment and which I need not repeat in their detail, -that there
was no such right as Mr Wilson now claims. That judgment was affirmed by the Court of Appeal in a judgment delivered ex tempore on 24 August 1998 and refusing Mr Wilson's application for leave to appeal to the Court of Apse
al against the judgment of Hidden J.
While I do not have before me as I speak the relevant documents, i am informed that in the wake of the judgment of the Court of Appeal, Mr Wilson moved in the High Court for leave to
appeal to the High Court against the judgment and orders of the Court of Appeal, and that such application was rezused.
The application that Mr Wilson brings to this Court is in every sense the same as the application dealt
with successively by Hidden J, by the Court of Appeal and by the High Court in the contexts to which I have referred.
Mr Wilson bolsters his present submission, as I have followed it, by referring to provisions of the
relevant international covenant positing the right in everybody to a fair trial by an impartial tribunal. Mr Wilson puts submissions in support of the proposition that trial of the outstanding contempt charge by any judge is
not a fulfilment of the requirement of the international covenant.
It is, I think, sufficient to say of those submissions that they are, in my respectful view, wholly and transparently without merit either in law or in fact
and I reject. them.
The present application is not supported by any other submission of substance differing from the submissions which were urged unsuccessfully in connection with the earlier application.
The charge of
contempt of court has been outstanding or an unconscionable length of time. So far as this Court is concerned, it is not going to remain outstanding for a further and more unconscionable length of time. The application is
dismissed with costs.
I certify that this and 1 preceding page is a true copy of the reasons for judgment herein of the honourable Mr Justice Sully ??????????
Dated 6/9/99 Associate
THIS AND THE PRECEDING 1 PAGES IS THE
ANNEXURE MARKED "I" REFERRED TO IN
THE AFFIDAVIT OF NATALIE JANE ADAMS
SWORN AT SYDNEY
THIS 17TH DAY OF MAY 2000
BEFORE ME ??????????
Solicitor
Annexure "J":
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SMART AJ
MONDAY 1 NOVEMBER 1999
19214/97 - THE PROTHONOTARY v J WILSON
JUDGMENT
HIS HONOUR: Mr Wilson seeks to vacate the hearing date of 9 November
1999 as the date set for the hearing of the charge of contempt of court against him. The hearing date was fixed by Wood CJ at CL on 27 September 1999.
The history of the matter can be summarised shortly on 19 March 1998
Hidden J refused Mr Wilson's application for trial by jury on the charge of contempt. On 24 August 1998 the Court of Appeal refused Mr Wilson leave to appeal from Hidden J's decision. On16 April 1999 the High Court
refused leave to appeal from the Court of Appeal's decision.
Subsequent to those decisions, Mr Wilson made application to Sully J for an order for trial by jury of the charge against him of contempt. That application was
refused.
Mr Wilson has told me in response to a question that in the hearings prior to that before Sully J he had not mentioned the United Nations covenant and the impact that that covenant had. He now put that as it
entitles him to a trial by jury and trial before an impartial tribunal. Mr Wilson has appealed against the refusal of Sully J to order trial by jury.
On Monday 8 November there is an application before the Court of Appeal to
dismiss Mr Wilson's summons for leave to appeal against the decision of Sully J, on the basis that the question as to whether the claimant is entitled to a jury in the proceedings at first instance has already been
determined by this court.
This court determines issues and in making its determination it is not the practice of the court to allow a further hearing on the same issue except in a very limited number of cases and this does
not seem to be one of them.
The decision of the High Court in Re Colina (1999) High Court of Australia57, 21 October 1999, determined that there was no right to trial by jury in relation to a charge of contempt involving
a Federal Court.
Mr. Wilson relied on the High Court Rules giving him twenty-eight days to seek leave to appeal from the decision of the Court of Appeai. He submitted that this Court should not effectively deprive him
of that right.
In deciding whether to vacate the hearing date on 9 November 1999, I have to have regard to the prospects of success of the applicant's application to the Court of Appeal and his foreshadowed application
thereafter to the High Court of Australia.
It does seem to rue that the matter has been authoritatively determined by the High Court of Australia. In any event, the matter will be before the Court of Appeal next Monday
for it to take whatever course it considers appropriate. For my part in the existing state of the law I do not think that I would be justified in vacating the hearing date on 9 November 1999 and I refuse to do so.
(Ms
Adams made an application, without prior notice to Mr Wilson, that his Honour should make an order that Mr Wilson attend the court next week. His Honour refused to make that order.)
I Certify that this and the 1
preceding pages are a true copy of
the reasons for judgment herein of
The Honourable Smart AJ and
of the Court.
3/11/99 B.A????
Date Associate.
THIS AND THE PRECEDING 1 PAGE IS THE ANNEXURE MARKED "J" REFERRED TO IN
THE AFFIDAVIT OF Natalie Jane Adams
SWORN AT Sydney
THIS 19TH DAY OF May 2000
BEFORE ME ?????????
Solicitor
Annexure "K":
CITATION:Prothonotary v Wilson (1999) NSWSC 1148
CURRENT JURISDICTIONCivil
FILE NUMBER(S):12914/97
HEARING DATE(S):9 November 1999
JUDGMENT DATE:9 November 1999
PARTIES:Prothonotary
John Wilson
JUDGMENT OF:Wood CJ at CL
LOWER COURT Supreme Court
JURISDICTION:
LOWER COURT FILE
NUMBER(S):
LOWER COURT JUDICIAL
OFFICER:
COUNSEL:T. Buddin SC
Self
SOLICITORS:Crown Solicitor
Self
CATCHWORDS:Contempt of Court
DECISION:Convicted of two counts of contempt
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
WOODCJ at CL
TUESDAY 9 NOVEMBER 1999
12914/97 - THE PROTHONOTAR.Y v WiLSON
JUDGMENT
1 HIS HONOUR: This matter comes before the court by way of a
summons, filed by The Prothonotary, seeking declarations in the following terms:
"1. A declaration that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed down by the Hon.
Acting Justice Murray in the matter of John Wilson v Terence Greenwood and six others in the Supreme Court of New South Wales, the defendant did throw a plastic bag filled with paint at Acting Justice Murray and did thereby
conduct himself in a manner which tended to interfere with the administration of justice.
2. A declaration that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed down by
the Hon. Acting Justice Murray in the matter of John Wilson v Terence Greenwood and six others in the Supreme Court of New South Wales, the defendant did throw a further plastic bag filled with paint at Acting Justice Murray
and did thereby conduct himself in a manner which tended to interfere with the administration of justice."
2 The summons further seeks orders that the defendant be punished or otherwise dealt with for
contempt of court. The Statement of Charges annexed to the summons is in the following terms:
"1. It is alleged that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed
down by the Honourable Acting Justice Murray in the matter of John Wilson v Terence Greenwood and six others in the Supreme Court of New South Wales, he did throw a plastic bag filled with paint at Acting Justice Murray and did
thereby conduct himself in a manner which tended to interfere with the administration of justice.
2. It is alleged that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed
down by the Honourable Acting Justice Murray in the matter of John Wilson v Terence Greenwood and six others in the Supreme Court of New South Wales, he did throw a further plastic bag filled with paint at Acting Justice Murray
and did thereby conduct himself in a manner which tended to interfere with the administration ofjustice2'
3 The particulars of contempt alleged in the summons are as follows:
"1. On 24 July
1997 the defendant filed a Statement of Claim in the Supreme Court Registry, Common Law Division, against seven defendants namely Terence Greenwood, the Hon. Justice John Hamilton, the Hon. Matthew Clarke, the Hon. Justice Alan
Abadee, the Hon. Sir Darryl Dawson., the Hon. Justice Michael Kirby and the Hon. Justice John Toohey.
2. On 4 August 1997 a Notice of Motion was filed in court on behalf of the defendants seeking that the proceedings be
dismissed, alternatively, that the statement of claim be struck out.
3. On 25 August 1997 the Notice of Motion was argued before the Hon. Acting Justice Murray in the Supreme Court. Judgment was reserved.
4. On 5
September 1997 the matter was listed for judgment to be delivered. The defendant appeared in person. The defendant brought into court a black folder inside which was a hidden cavity containing three plastic bags filled with
yellow paint.
5. Before judgment was delivered, the defendant asked his Honour:
4
'May I record or will there be a transcript?'
At this time the defendant was observed to be holding a dictaphone in his hand.
5
His Honour replied:
'I will be handing down a copy of my reasons
so there won't be anything to record, other than that
the proceedings are dismissed. I order the respondent to pay the applicants' costs. I publish my reasons.'
6 Immediately upon these words being uttered by his Honour, the defendant threw one of the
bags of paint towards him. The bag bit his Honour and landed on the bench before him, causing yellow paint to splash onto his Honour's coat. The defendant then threw a second plastic bag of yellow paint towards his Honour.
The second bag landed between the judge's Associate and the Court Reporter, splashing paint on impact. The court staff thereafter restrained the defendant
8 6. The actions of the defendant referred
to in the paragraph 5 of these particulars tended to interfere with the administration of justice in that:
9
(a) they were intended or were likely or calculated to intimidate his Honour and discourage him from performing
his judicial function:
(b) they were intended or were likely or calculated to intimidate judicial officers and discourage them from performing their judicial function; and
(c) they were intended or were likely or
calculated to impair public confidence in and respect for the courts.
7. On 12 September 1997 the Honourable Mr Justice David Hunt, Chief Judge at Common Law, ordered the Acting Protbonotary of New South Wales to
commence proceedings against the defendant for contempt."
10 When the matter came on for hearing this morning the defendant, Mr Wilson, pursued his claim to trial by jury and objected to the jurisdiction of
the court.
11 Having heard various objections formulated by him in this regard, it was my decision that the matter should proceed in a summary fashion without a jury. Evidence was called from various witnesses
in the form of affidavits. None of those deponents was required for cross-examination and none of their evidence was challenged in any form.
12 In substance, the events of the day upon which the offences are alleged to
have occurred were recalled by Catherine Olsen, the Associate to Acting Justice Brian Murray, in the following terms:
"5. At about l0am on 5 September 1997 Murray AJ came onto the bench in Court 1 in the King Street
Court building. I called the case and handed to the Judge the written judgment. After I called the case Mr Wilson came forward to the bar table and said to Murray AJ words to the following effect:
'Can I record the proceedings?'
At this time I saw that he had in his hand a small recording machine.
Murray AJ said words to the following effect:
'That will not be necessary as I am about to hand down a written judgment.'
6. Murray AJ then said words to the following effect:
'In this matter the proceedings are dismissed. The respondent is to pay the applicants' costs.'
As Murray AJ was saying these words, I saw that John Wilson was still standing at the bar table with a black
Lever Arch folder on the table. I saw John Wilson's arms move and then wave about in a throwing motion. I saw an object hurl very quickly towards Murray AJ. I then turned around and saw that Murray Al's suit coat was
splashed with a yellow substance. There were also splashes of the same substance on the bench in front of him. A plastic bag which looked as if it had burst had landed on the bench above me. At first I did not know what the
yellow substance was. It looked as if the substance may be an acid of some type and quickly pulled it off the bench onto the floor between the Court Reporter and myself. While I was doing this, another missile was thrown. This
second missile landed between myself and the Court Reporter. At this time the Court Officer grabbed Mr Wilson who struggled with him. The Judge's Tipstaff Bernard Roach then went to assist. The Court adjourned and I went to
the ante room to help Murray AJ. I then saw Bernard Roach telephone security. I subsequently examined the Murray Al's coat and found that the substance appeared to be yellow paint. This paint was on the left breast and
lapel area of Murray Al's suit. I also saw the Court Reporter's dress was splattered with yellow substance. There was also some yellow paint on my jacket."
13 The account given by Ms Olsen has been
supplemented by a further affidavit to which were annexed a series of photographs showing the paint which landed on the bench and on the floor in the vicinity of the bench. Those photographs further show the black folder which
was found on the Bar table in the immediate presence of Mr Wilson, which contained a further plastic container within the hollowed out cavity.
14 Ms Olsen's account has been corroborated in the affidavit of the
Tipstaff Bernard Lee Roach, who was similarly present on 5 September 1997 when the incident described occurred.
15 Mr Roach described how he and Walter Baer, the Court Officer, took hold of Mr Wilson after the paint was
thrown and restrained him pending arrival of security. That account is corroborated by the Court Officer, Walter Baer, who described seeing Mr Wilson open up a folder which he had placed on the Bar table, remove a yellow packet
from the folder and throw it at Acting Justice Murray. This witness said that he saw the packet hit Acting Justice Murray in the region of his left chest shoulder area, after which he saw Mr Wilson remove a second yellow
package from the folder which was then thrown towards the bench.
16 The accounts of these witnesses have been supplemented by affidavits sworn by Gregory Peter McNally of counsel, who was waiting in court for the matter
of Duggan v Parrett to be called on, after judgment was delivered in the reserved matter concerning Mr Wilson. This witness said that he examined the folder which had been placed on the Bar table. He confirmed that, when seen
by him, it appeared to contain a number of court documents which had been cut out, to create a cavity. Within that cavity were contained the plastic bags filled with paint.
17 Similar observations were made by
Maina Gordon, a Solicitor instructing Nicole Abadee of counsel, who was similarly briefed to appear in the matter of Duggan v Parrett.
18 The final piece of evidence in the proceedings concerns a facsimile transmission
and press release, which Natalie Jane Adams, a Solicitor employed in the office of I V Knight, Crown Solicitor, has said was received by her on 14 November 1997. This document purports to be under the hand of Mr Wilson and, so
far as it constitutes a press release, contains a clear admission that he had thrown paint at Acting Justice Murray.
19 Relevantly, the document contains various complaints made by Mr Wilson concerning the
judicial system and concludes with the following paragraph:
"Frustration at the total corruption of our system of law and justice meant that something had to be done to break out of the clutches or stranglehold
maintained by the judges who were not only protecting fraud but each other. But this judge caused me to hold out a glimmer of hope because, at the first heating when I presented my verbal argument, he did not immediately
dismiss my claims but reserved his judgment to go away and consider the situation saying he would let me know when he had made up his mind. However, when I was called to return for his ruling eleven days later, no
representative was there from the solicitors for the seven judges to hear the decision which indicated collusion (a secret understanding). When the judge smiled and dismissed the claim, I threw a plastic bag containing yellow
paint which made a 7 mm stain on the judge's suit. If the judge was doing 'a lawful thing', causing an injury or detriment to him and an indictable offence and I am liable to a penalty of ten years' imprisonment
and the destruction of my own life. But the banks have destroyed countless numbers of Australian lives by their fraudulent contracts and those crimes are being covered up by judges whom are supposed to be administering law and
justice but who are, in fact, accomplices. The entire situation is gravely serious and the way of a jury trial is our last hope."
20 It is clear from this recital of the evidence that the particulars contained in
the summons have been made good upon an evidentiary basis.
21 The principles applicable to a case such as the present are clear:
(a)The form of contempt in question is that which involves conduct in the face of
the court or in the course of proceedings and which obstructs or interferes with the due administration of justice or is calculated to do so - as that concept has been explained in decisions such as Parashuram Detaram
Shamdasani v King-Emperor [1945] AC 264 and Ex parte Bellanto re Prior [1963] SR NSW 190 especially at pp 199 to 204.
(b)The gravamen of the offence lies not in protecting the personal dignity of the judge who may be the
object of an assault or personal attack but of protecting the public from the mischief that will incur if the authority of the courts is undermined or impaired. The point is well made in the judgments of the Court of Appeal in
Re Johnson (1887)20 QBD 68 where Bowen LJ said
"What is the principle which we have here to apply? It seems to me to be this. The law has armed the High Court of Justice with the power and imposed on it the duty of
preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals that insults to judges are not
allowed. it is on the same grounds that insults to witnesses or to jurymen are
not allowed. The principle is that those who have duties to discharge in a court of justice are protected by the law, and shielded on their way
to the discharge of such duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to courts of justice."
22. Lord Esher MR similarly emphasised that
the gravamen of the offence is an attack on a judge in his judicial capacity and in the exercise of his office, the contempt not being of the judge, but of the court in which he is acting.
23 These observations
were cited with approval by the court in Ex parte Bellanto re Prior at 203. Observations to similar effect may be seen in Bell v Stewart (1920)28 CLR 413 at 428 to 429; R v Dunbabim; Ex parte Williams (1935) 53 CLR 434 at 442
to 443 and Ex parte Tuckerman re Nash (1970)3 NSWR 23.
(c) Conduct which qualifies as contempt of this kind is not confined to something said or done while the proceedings are pending, or even in the course of being
heard. As Donovan LI said in Attorney General v Butterworth [1963] 1 QB 696, in a passage at 723, applied in R v Wright (No 1) [1968] VR 164 at 166:
"The question to be decided here, as in all cases of alleged
contempt of court, is whether the action complained of is calculated to interfere with the proper administration of justice. There is more than one way of so interfering. The authority of a court may be lowered by scurrilous
abuse. Its effectiveness to do justice may be diminished or destroyed in a pending case by frightening intending witnesses from the witness box. After giving evidence a witness may be punished for having done so, thereby
deterring potential witnesses in future cases from risking a like vengeance. I see no such difference between any of these three methods as makes the first two contempt of court, and the third not. Each is calculated to do the
same thing, namely, to interfere with the proper administration of the law in courts of justice."
24 To similar effect were the observations of Lord Denning MR at 719 and of Pearson U at 728.
25 This
principle has similarly been recognised in decisions such as In the matter of Samuel Goldman [1968] 3 NSWR 325 at 328 and Re Johnson per Bowen LI at 74.
(d)The principle expressed in these cases concerning witnesses and
parties is equally applicable to conduct that can be seen as calculated to deter judicial officers from doing their duty. The concern is similarly with the harm done to the present and future administration of justice, a system
in which judicial officers possess an integral role.
(e)Contempt of the kind here charged is criminal in nature. The ingredients of the charge must be proved to the criminal standard that is, beyond reasonable doubt see
Witham v Holloway (1995) 183 CLR 525 at 550.
(f)Proof of an intention to interfere in the administration ofjustice is not an ingredient of the charge (Attorney General of New South Wales v Dean (1990)20 N~WLR 650 at
655.) The relevant principles was stated in this decision by the Court in the following terms at p 656:
"The matter of overriding importance is to prevent interference with the proper course of trials; that interference
is just as real, and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear lt is sufficient that the prosecution show that the alleged contemptor had the
intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused.
26 The statements must be looked at objectively to determine whether they were calculated to
interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent, by those words, to interfere in the administration of justice is no
answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the Court's decision as to penalty."
(g)Summary trial is now the ordinary procedure
for the determination of contempt charges. (The Registrar of Court of Appeal v Willesee (1984) 2 NSWLR 378 and United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 330.) Any suggestion to the contrary in earlier
decisions has to be understood as confined to the circumstance that the remedy should not be misused and is reserved for clear cases.
(h)Criminal contempt is an offence punishable by imprisonment or fine or release on
recognisance. Other sentencing options such as community service are open within the inherent jurisdiction of the court (Registrar, The Court of Appeal v Manian (No 2) (1992) 26 NSWLR 309). The Sentencing Act 1989 applies to
any sentence of an imprisonment that may be imposed (Young v Jackman, Court of Appeal New South Wales, 2 June 1993, unreported).
It is obvious beyond question that a physical assault upon a judicial officer in connection
with the performance of his or her duty constitutes not only a contempt in the face of the court but a very serious contempt. It would be extraordinary if it were otherwise. If support were needed for such a proposition it can
be seen in Halsbury's Laws of England, 4th ed, vol 9, pp 4 to 5 and in the decision of Acting Justice Slattery in R V Keith David Herring, 3 October 1991, unreported.
The conduct of the defendant in the present case
is of that kind. His acts, I find, were intended, in the sense that he deliberately threw a plastic bag of paint at Acting Justice Murray, some of which struck his clothing and then threw a second container in the direction of
the bench. These acts occurred while his Honour was announcing his decision in a proceeding, in which the defendant was a party, and while he was publishing his reasons for that decision before proceeding to the other matters
listed for hearing that day. It occurred in the presence of other litigants. It was of a kind that was likely to occasion serious alarm, and it was such as to interfere with the administration of justice, and to undermine the
authority of the Courts.
27 I am satisfied that the actions of the defendant were premeditated and that he came to court with the paint concealed in a folder containing a number of documents which had been cut out
in order to create a cavity to contain the bags of paint. The only rational inference open is that he came to court prepared to throw the paint at Acting Justice Murray in the event of the proceedings being decided adversely to
himself.
28 Each of the acts described above in these circumstances constitutes a separate and clear contempt of court.
29 I make declarations in accordance with pars 1 and 2 of the summons. The
defendant is convicted of the two counts of contempt which have been preferred, as particularised in the summons. I will hear submissions on sentence.
************
Last Modified: 29/11/99
THIS AND THE PRECEDING 7 PAGES IS THE ANNEXURE MARKED "K" REFERRED TO IN THE AFFIDAVIT
OF Natalie Jane Adams
SWORN AT Sydney
THIS 17TH DAY OF May 2000
BEFORE ME ?????????
Solicitor
Annexure "L":
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No. 12914 of 1997
WOOD CJ at CL
TUESDAY 9 NOVEMBER 1999
THE PROTHONOTARY v WILSON
SENTENCE
1. HIS HONOUR: Some material has been placed before me on behalf of the defendant concerning his prior character; for example, it has been shown that he has no prior convictions of any kind, he has been a practising
dentist and a friend of his, Ray Lovett, says that he regards him as a truthful man who does help people in the community, and who has a genuine belief in the injustices of the legal system. Beyond that, no material has been
placed before me as to the general character of the defendant or concerning his mental state.
2 It may be accepted that it is of the nature of matters that come before the courts in this State that often strong
passions will be raised and that, in some litigants, feelings of injustice will be engendered. In some situations those feelings may be genuine, in others, although strongly held those beliefs will be baseless.
3 In
dealing with the matter of contempt the court is not concerned with the rightness or wrongness of the complaints which the defendant has in relation to the justice system, save to accept, as I do, that such beliefs as he
expresses are firmly held by him.
4 The relevant approach was identified by Kirby ACJ in Cook & Ors v.
Phillips, Court of Appeal, 29 September 1995, unreported, when his Honour said:
"Unless this
Court by its orders in cases such as this controls such passions in the environment of the court room and the precincts of the court, the achievement of peaceful curial resolution of disputes will be frustrated and may, in a
particular case, be prevented. This civilised feature of our society could then give way to verbal abuse, physical assault and even worse.
5 It is on the basis of principles such as this, that both personal and general deterrence loom large.
6 In the same case, Mahoney AP said:
"It is important to make clear, to those who take part in
proceedings before the Court and to those who associate themselves with such proceedings, that there must not be any improper interference with the course of justice"
7 To similar effect were the observations of
Gleeson CJ in Her Majesty's Attorney General in and for the State of New South Wales. v Hayden, 23 November 1994, unreported, when his Honour said:
'Elements of both general and personal deterrence are important
in the present case. The need for personal deterrence is evident from tue history of the opponent. In relation to the issue of general deterrence I would adopt and repeat the observa'tions made by Priestley JA in the case
of European Asia Bank AG v Wentworth' (1986) 5 NSI/V LR 445 at 463 where his Honour said: 'It seems to me that courts must do everything reasonably possible to protect the integrity of their own processes, including the
safety of persons lawfully present upon court precincts in connection with litigation'
8 The present offences I regard as most serious and to be such that the only proper outcome is a sentence of imprisonment.
The purpose of such a sentence is both to punish the defendant for the serious incidents of contempt of which he has been convicted, to provide him with an encouragement towards rehabilitation, to deter him and others from
similar conduct, and to mark the community disapproval of the offences.
8 Taking those matters into account, and bearing in mind the circumstance previously noted that this was a case of premeditation rather than a
spontaneous outburst, I sentence the prisoner in relation to each count to a fixed term of imprisonment of two years each to commence from today.
********************************
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
WOOD CJ at CL
FRIDAY 12 NOVEMBER 1999
THE PROTHONOTARY v JOHN WILSON
1 HIS HONOUR: When the matter was before me last for sentence, I neglected to deal with the requirements of s 6(3) of the Sentencing
Act, which has been brought to my attention.
2 PRISONER:Speak up, please.
3 HIS HONOUR: The reasons for the order, I think, were otherwise obvious, but in order to be clear about it, I will state that in
accordance with the requirements of s 6(3) of the Sentencing Act, I specify that I have imposed fixed term sentences for the two offences of contempt of which the defendant has been convicted, rather than sentences offering the
opportunity for release on parole, because of his refusal to acknowledge the criminality involved in the throwing of paint bombs at a judicial officer. In the absence of any sign of contrition or of insight on his part into the
wrongness of his conduct and in the presence of his belligerent defiance of the Court, it is evident that no purpose whatsoever will be served by a period of supervised release on parole and, accordingly, in the imposition of a
sentence structured so as to include a minimum and an additional term. The court will now adjourn.
******************************
THIS AND THE PRECEDING 3 PAGES IS THE ANNEXURE MARKED "L"
REFERRED TO IN THE AFFIDAVIT OF Natalie Jane Adams
SWORN AT Sydney
THIS 17TH DAY OF May 2000
BEFORE ME ???????????
Solicitor
Annexure "M":
NEW SOUTH WALES
COURT OF APPEAL
CITATION:WILSON v THE PROTHONOTARY (2000) NSWCA 16
FILE NUMBER(S):CA 40731/99
HEARING DATE(S):23 February 2000
JUDGMENT DATE:23 February 2000
PARTIES:John Wilson - Appellant
The Prothonotary - Respondent
JUDGMENT OF:Sheller JA at 1
LOWER COURTSupreme Court - Common Law Division
JURISDICTION:
LOWER COURT12914/97
FILE NUMBER(S):
LOWER COURTSully J
JUDICIAL OFFICER:
COUNSEL:R S Toner SC - Appellant
T L Buddin SC - Respondent
SOLICITORS:P J Weldon - Appellant
I V Knight - Crown Solicitor - Respondent
CATCHWORDS:APPLICATION FOR LEAVE TO APPEAL - ABUSE
OF PROCESS
DECISION:Application for leave to appeal dismissed as an abuse of process of the Court. No order as to costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40731/99
CL 12914/97
SHELLER JA
Wednesday, 23 February 2000
WILSON v THE PROTHONOTARY
JUDGMENT
1 SHELLER JA: On 16 February 2000, there was listed before the Court comprising
Justices Meagher, Heydon and myself, a summons
for leave to appeal by the claimant, John Wilson, against the opponent, The Prothonotary. The order sought was leave to appeal from a decision of Sully J given on 6 September 1999.
2 The application before Sully J was
one effectively for a declaration that Mr Wilson was entitled to have charges of contempt of Court against him tried by jury. That same question had already been decided against Mr Wilson by Hidden J in a decision given on 16
March 1998. Leave to appeal from the decision of Hidden J was refused by this Court on 24 August 1998. On 16 April 1999, special leave to appeal from the decision of this Court was refused by the High Court comprising Justices
Gaudron and Callinan. In the course of his reasons for judgment, Sully J said that the application brought to the Court by Mr Wilson was in every sense the same as the application dealt with successively by Hidden J, the Court
of Appeal and by the High Court. In dismissing the application his Honour said that it was sufficient to say of the submissions put by Mr Wilson that they were in his respectfui view wholly and transparently without merit
either in law or in fact.
3 When this application came before this Court on 16 February, Mr Toner SC, who appeared for Mr Wilson in his appeal on the contempt charges, announced that he had at that time no instructions
to appear for Mr Wilson on the leave application. Accordingly, that was stood over to be mentioned before me this morning.
4 When the matter was mentioned this morning, Mr Buddin SC, who appears for The Prothonotary,
moved on a notice of motion filed by The Prothonotary for an order that the summons for leave to appeal be dismissed on the basis that the question as to whether the claimant was entitled to a jury in the proceedings below had
already been determined by this Court. Mr Buddin relied upon Pt 13 Rule 5 of the Supreme Court Rules and submitted that, pursuant to s46 of the Supreme Court Act, I have power to dismiss the application for leave to appeal on
these grounds.
5 Mr Toner, who today has announced his appearance for Mr Wilson, stated in Court the reasons why Mr Wilson claims to be entitled in the contempt matter to be tried by a jury. In my opinion, in light of
the decisions of Hidden J, this Court and the High Court, which are annexed conveniently to the affidavit of Natalie Jane Adams of 26 October 1999 which was filed on behalf of The Prothonotary and has been read, the present
application for leave to appeal is a proceeding which can be appropriately described as one amounting to an abuse of the process of the Court. I am quite satisfied that, for that reason, the Court may order that the proceedings
be dismissed. I am also satisfied that sitting alone I have power pursuant to s46(l) (b) to make such an order as an order of the Court of Appeal. Accordingly, the application for leave to appeal in matter 40731 of 1999 is
dismissed as an abuse of the process of the Court.
6 Mr Buddin does not seek any order for costs. Accordingly, I make no order for costs.
(c) Copyright 1999, 2000 Crown Copyright
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THIS AND THE PRECEDING 1 PAGE IS THE
ANNEXURE MARKED "M" REFERRED TO IN THE AFFIDAVIT OF Natalie Jane Adams
SWORN AT Sydney
THIS 17TH DAY
OF May 2000
BEFORE ME ??????
Solicitor
Annexure "N":
New South Wales
Court of Appeal
CITATION:Wilson v The Prothonotary (2000) NSWCA 23
FILE NUMBER(S):CA 40928/99
HEARING DATE(S):16 February 2000
JUDGMENT DATE:29 February 2000
PARTIES:John Wilson (Appellant)
The Prothonotary (Respondent)
JUDGMENT OF:Meagher JA at 1; Sheller JA at 3; Heydon JA at 4
LOWER COURTSupreme Court
JURISDICTION:
LOWER COURTCL 12914/97
FILE NUMBER(S):
LOWER COURT Wood CJ at CL
JUT)ICL4L OFFICER:
COUNSEL:Appellant - R Toner SC/J Berwick
Respondent - T Buddin SC
SOLICITORS:Appellant - P J Weldon & Co
Respondent - I V Knight
CATCHWORDS:APPEAL - contempt of court - throwing paint at judge - appeal against
two year term of imprisonment - failure to call any subjective evidence in relation to sentencing at trial - admission of fresh evidence on appeal - mediacl condition - hardship to family - obsessive compulsive personality
disorder - time already served sufficient punishment - D
LEGISLATION CITED:Supreme Court Act 1970
CASES CITED:R v Edwards (1996) 90 A Crim R 510
R v Vachalec (1981) 2 NSWLR 351
Attorney-General for New South Wales v Whiley (1993) 31 NSWLR 314
Rich vAttorney-General for Victoria (1999) VSCA 14
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Akins v National Australia Bank (1994) 34 NSWLR 155
DECISION:See paragraph 53
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40928/99
CL 12914/97
MEAGHER JA
SHELLER JA
HEYDON JA
29 February 2000
JOHN WILSON v THE PROTHONOTARY
JUDGMENT
1 MEAGHER JA: I have read in draft the judgment of Heydon JA. I disagree with it.
The relevant facts are as follows:
1.Mr Wilson threw a bag of paint at a judge.
2.On that fact alone he had committed a serious contempt of court, a contempt in the face of the Court.
3.The learned Chief Judge at Common Law sentenced him to two years'
imprisonment. That is the decision now appealed from.
4.At the hearing before the Chief Judge, Mr Wilson led virtually no evidence, although invited to do so several times by His Honour.
5.On appeal from His Honour, there
was an application to lead further evidence, said to be of a "subjective" nature. This was acceded to by the court, although in my opinion wrongly so.
6.Neither before His Honour, nor on appeal, was there any
apology, or any sign of contrition. It was made clear to the Court that this was not due to any inadvertence, but was a calculated decision. In my view this is a fact which on its own should preclude any alteration to his
Honour's sentence.
7. There was nothing novel about the additional evidence led before this court. It could have been led before His Honour, who invited Mr Wilson to do just that. There has been no explanation why it was
not led.
8. There is no evidence that Mr Wilson is mentally unbalanced: eccentric yes, obsessive certainly, but demented no. It follows that at all stages of the case, both below and before us, he knew exactly what he was
doing.
2 In my view the appeal against sentence should be dismissed with costs.
3 SHELLER JA: I agree with Heydon JA.
4 HEYDON JA: On 9 November 1999 the appellant was convicted on two counts of
contempt of court and sentenced on each count to a fixed term of imprisonment for two years:
5 The facts found were as follows.
6 On 24 July 1997 the appellant filed a Statement of Claim in the Supreme Court
Registry, Common Law Division, against seven defendants.
7 On 4 August 1997 a Notice of Motion was filed in court on behalf of the defendants seeking that the proceedings be dismissed, or alternatively, that the
Statement of Claim be struck out.
8 On 25 August 1997 the Notice of Motion was argued before an acting Justice of the Supreme Court. Judgment was reserved.
9 On 5 September 1997 the matter was listed for judgment
to be delivered. The appellant appeared in person. The appellant brought into court a black folder inside which was a hidden cavity containing three plastic bags filled with yellow paint.
10 Before judgment was
delivered, the appellant, who was holding a dictaphone in his hand, asked his Honour:
"May I record or will there be a transcript?"
His Honour replied:
"I will be handing down a copy of my
reasons so there won't be anything to record, other than that the proceedings are dismissed. I order the respondent to pay the applicant's costs. I publish my reasons."
11 Immediately upon those words being
uttered by his Honour, the appellant threw one of the bags of paint towards him. The bag hit his Honour and landed on the bench before him, causing yellow paint to splash onto his Honour's coat. The appellant then threw a
second plastic bag of yellow paint towards his Honour. The second bag landed between the judge's Associate and the Court Reporter, splashing paint on impact. The court staff thereafter restrained the appellant.
12 In consequence the trial judge made decIarations follows:
"1. A declaration that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed down by the Hon. Acting Justice
Murray in the matter of John Wilson -v- Terence Greenwood & six others in the Supreme Court of New South Wales, the defendant did throw a plastic bag filled with paint at Acting Justice Murray and did thereby conduct
himself in a manner which tended to interfere with the administration ofjustice.
2. A declaration that the defendant is guilty of contempt of court in that on 5 September 1997 after judgment was handed down by the Hon.
Acting Justice Murray in the matter of John Wilson -v- Terence Greenwood & six others in the Supreme Court of New South Wales, the defendant did throw a further plastic bag filled with paint at Acting Justice Murray and did
thereby conduct himself in a manner which tended to interfere with the administration of justice."
Appeal Against Conviction
13 The appellant's Notice of Appeal appealed against conviction on eight
grounds. Though he instructed his counsel to press them, neither written nor oral argument was directed to them. As is discussed below, evidence not tendered at the trial was admitted on the appeal. Part of it dealt with the
consequences to the appellant of his conviction, but none of it affected the reasoning of the trial judge in relation to conviction, which on the evidence tendered at trial was inevitable. Accordingly the appeal against
conviction must be dismissed.
Appeal Against Sentence
14 Though the appellant was represented on the appeal, he was not represented at the trial. Despite several invitations by the trial judge to do so, and though
at the last moment he called a character witness who proved almost useless, he failed to call any satisfactory evidence in relation to sentence to the effect of that tendered on the appeal.
15 The conduct of the
appellant placed the trial judge under a serious disadvantage in arriving at a just sentence. What the trial judge knew, apart from the objective facts he found in his reasons for judgment on conviction, was set out thus in
paragraph 1 of his reasons for judgment on sentence:
"Some material has been placed before me on behalf of the defendant concerning his prior character; for example, it has been shown that he has no prior
convictions of any kind, he has been a practising dentist and a friend of his, Ray Lovett, says that he regards him as a truthful man who does help people in the community, and who has a genuine belief in the injustices of the
legal system. Beyond that, no material has been placed before me as to the general character of the defendant or concerning his mental state."
16 In addition, the trial judge, having had the experience of the
appellant's oral submissions over thirteen pages of transcript, would have observed that the appellant was middle aged and apparently in good health; that the appellant was of the much-repeated view that the trial of him
should have been by jury; that the appellant was of the view, also much-repeated, that the system ofjustice was corrupt; that the appellant was of the view that variable interest rates in contracts of loan rendered the
contracts void for uncertainty; and that the appellant said he had been fighting for occupational safety for many years.
17 The following additional information came to light as a result of the further affidavit evidence
tendered on appeal. Its credibility was not in contest, the deponents were not cross-examined, and no complaint was made about the reception of medical reports not verified on affidavit by their makers.
Evidence Tendered on Behalf of the Appellant on Appeal
18 First, the appellant had not only "been a practising dentist", but had been qualified for over thirty years. He had practised until 1970 in the Anny,
until 1978 in two practices in England, and since 1978 in North Rocks (Mrs Wilson, paras 8-1 1). According to Dr.V Kirychenko, a medical practitioner of 22 years' standii~ who had~practisediin the same rooms as the
appellant (J)ara 2) and who is a patient of the appellant's, the ap~llaht "is dedicated" to his practice. His "technical skills are excellent, from my personal experience having my pain and suffering eased on
many occasions" (para 13). Dr Robinson, a dentist with 33 years experience who had known the appellant for 40 years, said the appellant. "is avery caring dental practitioner who has had the loyal following of his
patients for about the last 20 years in North Rocks" (para 4).
19 Secondly, the appellant served in the Army during the Vietnam War on two tours of duty. On the second tour he contracted hepatitis and he had to be
repatriated. According to Dr Robinson, his health was severely affected by the hepatitis attack, and he returned "in very. poor health which has probably contributed to some of his present health problems" (para 3);
see also Dr Kirvchenko, para 17 and Mrs Wilson, para 9. Despite this, on his recovery from hepatitis he sought to return for further service in Vietnam but was prevented from doing so (Mrs Wilson, para 9). Dr Robinson said he
is "fiercely patriotic" (para 10).
20 Thirdly, the family background and position of the appellant is as follows. The appellant's parents separated when he was 11 and he was brought up thereafter by his
mother. His father did not financially support his desire to go to the university and he had to work briefly in a bank before doing so. The appellant, who is now 57, has been married to Mrs Wilson for 34 years. The marriage has
produced two sons and a daughter, and the appellant has a grand daughter. The daughter works in his practice as practice manager and dental nurse. One son is a ftill-flme student at the Australian National University and has
been in receipt of financial assistance from his parents. Another son is financially dependent on the appellant, being unemployed, essentially because he suffers from schizophrenia. He has been admitted to Cumberland Hospital
for this on a number of occasions. Mrs Wilson says that he does not cope with external pressures and "has been seriously disturbed" by the appellant's incarceration (paras 3 and 17). Dr Robinson observed the
appellant to be a "very good supportive father to his three children and a very devoted grandfather" (para 5). His grand daughter is two years old and, according to Dr Kirychenko, "greatly dependent" on him
(para 14). Dr Kirychenko also said that the appellant "is a father whose life revolves around the family and who would do everything and anything in his power to help the individual members in various difficulties or
crises. The welfare and stability of his family is greatly dependent on him." Mr W A Merton, MLA, said that the appellant was a man of"strong family values" (para 11). Dr Kirychenko said that the appellant was
"always deeply concerned about the welfare of his family" (para 12). In the light of the financial difficulties which his conduct in relation to these proceedings and his wider conduct has placed his family, the
support of Mrs Wilson in particular is noteworthy.
21 Fourthly, though the appellant appears physically healthy - as one of his doctors, Dr Ross, said, he is "a well looking man" - he is not in fact healthy. Dr
Kirychenko, his general medical practitioner since 1980, summarised the position as follows. In August 1988 the appellant developed palpitations which on investigation were found to be a heart condition, namely, an atrial
flutter with varying block. This condition deteriorated and was very difficult to treat with medication; surgical procedures were contemplated though they were experimental. In November 1993 Dr Uther, a specialist cardiologist,
suspected that his right atrium was diseased. In December 1995 his condition became critical and "he was in heart failure with pulmonary oedema. The condition was life threatening". Dr Kirychenko treated him with
Digoxin and Lasix and he stabilised. Dr Leung reported after radiology that "cardiomegaly is present with a life ventricular hypertrophy and a prominent ascending aorta. Pulmonary vascular congestion is present". On
22 December 1995 Dr Schembri concluded as follows:
"Atrial enlargement in keeping with longstanding atrial fibrillation. No significant valvular disease. Anterior and septal hypokinesis is suggestive of previous
infarction."
An echocardiogram taken in 1998 showed improvement with treatment. On 25 May 1998 Dr Walker reported:
"Mild mitral and tricuspid regurgitation with mild left atrial enlargement. The left
ventricle was within normal limits in size at this time. Atrial fibrillation."
Dr Kirychenko's affidavit continued:
"He at present continues the treatment Digoxin 0.250 mg which gives him some
control of his condition. The treatment is tenuous and loss of control may occur at any time, particularly if he is subjected to stress. The other problem is that the cardiac arrhythmia may result in blood clotting with the
possibility of a stroke. Mr Wilson does not take anti coagulants for this because of their possible adverse side effects.
His medical condition is tenuous as loss of control may lead to irreversible heart failure. He
should not be exposed to undue stress. His condition may also precipitate if the arrhythmia becomes worse.
I believe incarceration would be a stressful situation and the longer the incarceration the greater the risk for
Mr Wilson. Research has shown that prolonged stress and anger can initiate an arrhythmia and has an effect on coagulation and heart perfusion."
The appellant must take Lanoxin for the rest of his life (Mrs Wilson,
para 5). He has refused other medication or treatment, though he has been advised to have the anti coagulant drug Warfarin and to have a pacemaker inserted or have an operation on his ventricle (Dr
McMurdo's report, page 2).
22 Fifthly, the new material reveals the following about the appellant's mental state, a matter about which the trial judge was understandably concerned (reasons for judgment on
sentence, para 1) and on which he was not favoured with any material. A report of Dr McMurdo dated 9 January 1998 (that is, four months after the contempts) said that though the appellant was not suffering from a mental illness
he:
"has an Obsessive Compulsive Personality Disorder as defined in the DSM-IV classification of mental disorders. This is not strictly a mental illness but as defined in the above classification it is seen as -
personality traits which are inflexible. They are based on enduring patterns of perceiving, relating to, and thinking about the environment and oneself"
Dr McMurdo enclosed the following definition of the Disorder:
"A pervasive pattern of preoccupation with orderliness, perfectionism, and mental and interpersonal control, at the expense of flexibility, openness, and efficiency, beginning by early adulthood and present in a
variety of contexts, as indicated by four (or more) of the following:
(1) is preoccupied with details, rules, lists, order, organization, or schedules to the extent that the major point of the activity is lost
(2)
shows perfectionism that interferes with task completion (e.g. is unable to complete a project because his or her own overly strict standards are not met)
(3) is excessively devoted to work and productivity to the
exclusion of leisure activities and friendships (not accounted for by obvious economic necessity)
(4) is overconscientious, scrupulous and inflexible about matters of morality, ethics, or values (not accounted for by
cultural or religious identification)
(5) is unable to discard worn-out or worthless objects even when they have no sentimental value
(6) is reluctant to delegate tasks or to work with others unless they submit to
exactly his or her way of doing things
(7) adopts a miserly spending style toward both self and others, money is viewed as something to be hoarded for future catastrophes
(8) shows rigidity and stubbornness".
23 Dr McMurdo said that the appellant met the follo~ing criteria of the Disorder:
"He is preoccupied with details, order, and rules.
He is excessively devoted to work and productivity to the exclusion
of leisure activities. He said that he believed he was the best dentist in Australia.
He presents as overconscientious and inflexible about matters of ethics and values.
From the history he gave to me had had
difficulty working with colleagues and dismissed several dentists when working in a joint practice in Britain and it seems that he has problems delegating tasks.
He shows a rigidity and stubbornness which could certainly lead to his own detriment in the end."
24 He said that "it is exceedingly unlikely that the appellant's personality disorder would benefit from any
treatment given his age and persistence in attitude." He concluded:
"It is very probable that [the appellant] will pursue his cause to the bitter end even if he knows he will be convicted. This does not mean
that he is mentally ill. There is a number of individuals in the community who take on causes and pursue the issue with tremendous vehemence as opposed to other individuals who are very lackadaisical about moral or ethical
issues. He is at one end of the continuum and therefore deserves the label of Obsessive Compulsive Personality Disorder, but this renders him perhaps eccentric, but not mentally ill."
25 Mrs Wilson said she believed this report described the appellant's personality:
"He gets obsessive about things at times and has a strong passion to do something about the convictions he holds. His primary
concern is for victims of medical, legal or financial problems. He does not engage in these issues in a haphazard fashion. He enters into each subject in great detail and often goes to great lengths in research." (para 7)
26 The concerns of which she spoke can be summarised as follows:
(a) For 10 years the appellant has campaigned against variable bank loan interest rates and contended that these render contracts uncertain. The
origins of this apparently lay in the experience of the appellant and his wife in relation to a home loan which left them owing more money after 13 years than they had borrowed despite having paid off substantial sums. The
appellant became particularly concerned by the plight of borrowers who were worse off than himself such as destitute farmers and young home owners "who are losing their properties and experiencing considerable personal
distress" (Mrs Wilson, para 26). For some time his campaign involved writing to the newspapers, to politicians and to interest groups; speaking on talkback radio; writing to holders of public office; moving motions at
Liberal Party conventions; and making submissions to public bodies. From 1996 the campaign was pursued in the courts. Mrs Wilson estimates the direct and opportunity costs of this at approximately $100,000 (para 29). The
appellant and Mrs Wilson have been ordered to pay legal costs to the St George Bank of at least $58,000. Dr Robinson summarised the appellant's conduct in this regard thus:
"He has studied legal books from
libraries and represented himself in court due to an overwhelming stubborn streak that makes him do things his way." (para 9)
(6) is reluctant to delegate tasks or to work with others unless they submit to exactly his
or her way of doing things
(7) adopts a miserly spending style toward both self and others, money is viewed as something to be hoarded for future catastrophes
(8) shows rigidity and stubbornness".
23 Dr McMurdo said that the appellant met the following criteria of the Disorder:
"He is preoccupied with details, order, and rules.
He is excessively devoted to work and productivity to the exclusion of leisure
activities. He said that he believed he was the best dentist in Australia.
He presents as overconscientious and inflexible about matters of ethics and values.
>From the history he gave to me had had difficulty
working with colleagues and dismissed several dentists when working in a joint practice in Britain and it seems that he has problems delegating tasks.
He shows a rigidity and stubbornness which could certainly lead to his own detriment in the end."
24 He said that "it is exceedingly unlikely that the appellant's personality disorder would benefit from any
treatment given his age and persistence in attitude." He concluded:
"It is very probable that [the appellant] will pursue his cause to the bitter end even if he knows he will be convicted. This does not mean
that he is mentally ill. There is a number of individuals in the community who take on causes and pursue the issue with tremendous vehemence as opposed to other individuals who are very lackadaisical about moral or ethical
issues. He is at one end of the continuum and therefore deserves the label of Obsessive Compulsive Personality Disorder, but this renders him perhaps eccentric, but not mentally ill."
25 Mrs Wilson said she believed this report described the appellant's personality:
"He gets obsessive about things at times and has a strong passion to do something about the convictions he holds. His primary
concern is for victims of medical, legal or financial problems. He does not engage in these issues in a haphazard fashion. He enters into each subject in great detail and often goes to great lengths in research." (para 7)
26 The concerns of which she spoke can be summarised as follows:
(a) For 10 years the appellant has campaigned against variable bank loan interest rates and contended that these render contracts uncertain. The
origins of this apparently lay in the experience of the appellant and his wife in relation to a home loan which left them owing more money after 13 years than they had borrowed despite having paid off substantial sums. The
appellant became particularly concerned by the plight of borrowers who were worse off than himself such as destitute farmers and young home owners "who are losing their properties and experiencing considerable personal
distress" (Mrs Wilson, para 26). For some time his campaign involved writing to the newspapers, to politicians and to interest groups; speaking on talkback radio; writing to holders of public office; moving motions at
Liberal Party conventions; and making submissions to public bodies. From 1996 the campaign was pursued in the courts. Mrs Wilson estimates the direct and opportunity costs of this at approximately $100,000 (para 29). The
appellant and Mrs Wilson have been ordered to pay legal costs to the St George Bank of at least $58,000. Dr Robinson summarised the appellant's conduct in this regard thus:
"He has studied legal books from
libraries and represented himself in court due to an overwhelming stubborn streak that makes him do things his way." (para 9)
(b) The applicant has "campaigned to ensure the safe handling of mercury by dental
workers in dental surgeries. He believed that dental workers, especially nurses, risked poisoning physically, mentally and gynaecologically from contact with, or breathing of, mercury vapours". Mrs Wilson says that the
campaign lasted over 12 years, involved extensive research, the development of safety boxes, the taking out of patents, numerous appearances on media, contact with sympathisers in the United States, including travel there, and
publication of an article in "The Lancet". Mrs Wilson estimates that the campaign cost $500,000, and forced the Wilsons to re-finance their mortgage (para 39). See also Dr Robinson (para 8). (c) The appellant's
other causes have included campaigns against smoking; to reduce speeding, against drugs in sport, in favour of rule changes in squash and changes in the sue of the squash ball, in favour of the placement of traffic lights on
roundabouts (Mrs Wilson, para 31), against an Australian Republic (Dr Robinson, para 10), in favour of a return to Privy Council appeals, against the Dentists Act, against behaviour at rock concerts, against television
advertising and against aspects of shopping centre leases (Mr Merton, paras 5-12).
27 Mr Merton, the appellant's local member of the New South Wales Legislative Assembly, gave evidence of the variety of subjects on
which the appellant made representations to him and the numerous occasions on which he did so (paras 5-12).
28 Sixthly, Mrs Wilson has pointed out that the conviction may cause the appellant to be removed from the roll
of dental practitioners (para 12).
29 Seventhly, Mrs Wilson has given detailed evidence as to the financial position of the family. They face eviction by the St George Bank unless payment of a debt of $356,380 is made.
This can only be done by selling the appellant's dental practice, which since his imprisonment has been operated by a locum and produces $250-$300 per week. If sale is effected, nothing will be left of the proceeds after
the bank debt and a tax bill are paid. If sale is effected, it is likely that a covenant in restraint of trade will prevent the appellant from practising in the North Rocks area even if he is allowed to remain on the roll. If
sale is effected, the appellant's daughter may become unemployed. After sale, the Wilsons will be left with only $85,000 in superannuation funds as provision for their retirement.
30 Eighthly, the evidence tendered
establishes the faith of various people in the appellant's character as a man of high principles. Thus Dr Kirychenko says that the appellant is fearless, honest, dependable and extremely strong in his beliefs; that he will
struggle without fear for his own welfare if he believes he is right on a principle affecting the welfare of the conimunity; and that he contributes to the welfare and stability of society. Mr Smith, a local real estate agent,
who is closely familiar with the appellant, says that he has always found him to be forthright, kind and caring though somewhat eccentric. He says that he has found the appellant to be "very highly respected" by the
local community at large (paras 3 and 6). Dr Robinson said that the appellant has "tremendous integrity and honesty" (para 6).
31 The material tendered on appeal establishes a wholly new picture of the
appellant's subjective circumstances. Section 75A(1 0) of the Supreme Court Act 1970 provides:
"The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought
to have been made or which the nature of the case requires."
The subsection applies to an appeal in proceedings in the Court:
s 75A(1). It cannot rationally be said that, by reason of the fresh evidence, the
trial judge "ought to have made" a different order in view of the fact that the fresh evidence was not tendered to him. But the subsection does give this Court power to make any order which "the nature of the
case" as it now appears in the light of the fresh evidence requires.
32 The appropriate course for this court is to approach the sentencing task afresh, taking into account the trial judge's findings on the
objective circumstances, which are plainly correct, but also taking into account the new evidence of subjective circumstances not available at the trial. The other possibilities are to attempt to estimate what the trial judge
would have done if the new evidence had been tendered to him, or to order a new trial on sentence. The former is an exercise in speculation. The latter is. a waste of time in view of the uncontroversial nature of
the trial judge's findings on conviction and the uncontested credibility of the new evidence.
33 The evidence shows the appellant to be, in every respect but one, an entirely worthy human being and an admirable
citizen. He is a war veteran. He has had a long and successful professional career of great value to his local community. He has an extremely stable al-id happy life with his family and has sought to cope with the problem of
his schizophrenic son. He pursues with idealism numerous causes: none of them could be said to be irrational or unworthy, though the methods he employs are sometimes reckless from the point of view of his family's financial
security. His health may be damaged by a prolonged period in gaol -indeed, it may cause a heart attack, a stroke or sudden death. The sentence has ruined the family financially and appears to have damaged the health of the
second son. The fact of conviction may have imposed upon the appellant the extremely severe sanction of total loss of livelihood. If he is prevented from practising as a dentist, given his age and lack of alternative
experience, it is highly unlikely that he will ever become employed again.
34 While the weight to be given to each of these matters may vary, they all deserve some weight. The respondent submitted that in the entire
circumstances of the case no weight should be given either to family hardship or to the appellant's medical condition.
35 It is a truism that many convicted persons who are gaoled (including persons of previous good
character) and their families suffer financial or other detriments or suffer ill health. The question is whether to impose a sentence inflicting these detriments on the appellant and his family beyond the point already reached
is necessary to secure legitimate sentencing purposes in all the circumstances. The hardship to Mrs Wilson and to the other members of the appellant's family may be taken into account if the circumstances are, as here,
"highly exceptional": R v Edwards (1996)90 A Crim R 510 at 5 16-7.
36 The respondent's submission in relation to the appellant's medical condition was supported by the citation of R v Vachalec [1981] 1
NSWLR 351. That case held that it was not the function of an appellate court to fulfil a continuing supervisory role over the effect of imprisonment on an individual; rather the responsibility for providing adequate and proper
medical treatment for prisoners lay with the prison authorities. However, that case is not in point. It was a case where the failure of the authorities to provide special medical and dietary treatment was said to be intolerably
harsh. The problem for the appellant is rather that however well the authorities treat him, the stress of imprisonment may trigger a heart attack or stroke with fatal consequences.
37 The one respect in which the
appellant is not an entirely worthy citizen is his conduct on 5 September 1997. No challenge was made or could be made to the trial judge's characterisation of the conduct in his reasons for judgment on conviction:
"It is obvious beyond question that a physical assault upon a judicial officer in connection with the performance of his or her duty constitutes not only a contempt in the face of the court but a very serious contempt.
The conduct of the defendant in the present case is of that kind. His acts ... were intended, in the sense that he deliberately threw a plastic bag of paint at [the judge], some of which struck his clothing and then threw a
second container in the direction of the bench. These acts occurred while his Honour was announcing his decision in a proceeding, in which the defendant was a party, and while he was publishing his reasons for that decision
before proceeding to the other matters listed for hearing that day. It occurred in the presence of other litigants. It was of a kind that was likely to occasion serious alarm, and it was such as to interfere with the
administration of justice, and to undermine the authority of the Court.
I am satisfied that the actions of the defendant were premeditated and that he came to the court with the paint concealed in a folder containing a
number of documents which had been cut out in order to create a cavity to contain the bags of paint. The only rational inference open is that he came to court prepared to throw the paint at [the judge] in the event of
proceedings being decided adversely to himself." (paras 23-24)
On 12 November 1999 the trial judge further noted the appellant's "refusal to acknowledge the criminality involved in the throwing of paint
bombs at a judicial officer", and noted "the absence of any sign of contrition or of insight on his part into the wrongness of his conduct" and also noted "his belligerent defiance of the Court". The
appellant told the trial judge that he regarded his conduct as a "harmless gesture". The appellant was apparently indifferent to the fact that those present while his conduct was taking place were defenceless. The
Associate thought the liquid in the first bag thrown was acid. Counsel for the appellant very properly conceded, in relation to every person present, that "the moment must have been terrifying for each of them. They cannot
have known what was in the,'bombs' and could well have. imagined a frightful outcome."'
38 The difficulty is that these contempts of court, serious as they were, have their origin in the appellant's
Obsessive Compulsive Personality Disorder. It may not be a mental illness, but it is a mental or personality disorder which, according to Dr McMurdo, is exceedingly unlikely to be treatable.
39 For present purposes it
may be accepted, though it is not necessary to decide, that the only proper outcome was a sentence of imprisonment. The trial judge, in conventional terms, described the purpose of a sentence of imprisonment for the appellant
as being:
"both to punish the defendant for the serious incidents of contempt of which he has been convicted, to provide him with an encouragement towards rehabilitation, to deter him and others from similar
conduct, and to mark the community disapproval of the offences."
40 Despite the seriousness of the offences, the fresh evidence leads to the conclusion that the period which has elapsed since the appellant was sent
to gaol is a sufficient punishment, has sufficiently provided him with encouragement towards rehabilitation and sufficiently marked the community disapproval of the offences. If general deterrence of persons not suffering from
the obsessions of the appellant which Dr McMurdo identified as Obsessive Compulsive Personality Disorder can be achieved by imprisoning those who do so suffer, the period already served does so sufficiently. A further period in
gaol for the appellant would not appear to operate as a legitimate means of deterring persons who do not suffer from that Disorder. If the appellant were not suffering from the Disorder, the time already served would
sufficiently deter him from similar conduct in the future. There is no reason to suppose that continuance of the term will deter the appellant any more than it has done already. To endeavour to do so appears futile.
41
Much of the difficulty in this appeal stems from the appellant's failure to offer an apology at any stage, or otherwise to manifest contrition for or awareness of his serious wrongdoing, or to indicate appropriate
acceptance of the court's authority. In the case of an offender who did what the appellant did but did not suffer from the Disorder, that would weigh heavily against a sentence as light as that which is proposed below. But
given that the appellant does suffer from the Disorder, a failure to apologise loses significance given that it appears to flow from the Disorder as much as did the contempts themselves.
42 The respondent drew attention
to three cases in which attacks on judges or other officers of justice were involved. Apart from the fact that there is little point in comparing sentences in a field of criminal conduct which is rarely committed, each is
distinguishable since in each the criminality was greater than that of the present appellant. In R v Herring (Supreme Court of New South Wales, unreported, 3 October 1991) the sentence was two years on a prisoner who ran
towards the judge with the intention of physically attacking him. The accused did not suffer from the appellant's personality disorder. In Attorney -General for New South Wales v Whiley (1993) 31 NSWLR 314 the contempt
consisted in threats by a father, party to litigation concerning the custody of his son, to kill the foster parents. The father, who was sentenced to a minimum term of two years and an additional term of eighteen months, had a
long history of violent and criminal behaviour, some of it while on parole. In Rich v Attorney-Generalfor Victoria [1999] VSCA 14, the defendant in a criminal trial threatened the prosecutor with murder and was sentenced to
twelve months' imprisonment. If there is to be a comparison of sentences there are English cases in which sentences comparable to what is proposed below have been given: an accused who threw an egg at Malins V-C served five
months; a litigant who threw tomatoes at the Court of Appeal was gaoled for six weeks; a physical attack on Brabin J, in which his wig and glasses were knocked off, led to a sentence of nine months (see C JMiller, Contempt of
Court, p 104).
43 In my judgment the term of imprisonment which the appellant has served by the date of the publication of these reasons is adequate punishment for the two contempts.
Admission of Fresh Evidence
44 Counsel for the appellant moved on a notice of mo~tion and an affidavit of the appellant's solicitor, Philip John Weldon, of 6 January 2000 to haVe the Court admit further evidence pursuant to s 75A(7) and (8) of the
Supreme Court Act. This evidence consisted of affidavits of Wayne Ashley Merton, the appellant's wife, Laraine Joy Wilson, Dr Valentine Kirychenko, the appellant's general practitioner since about 1980, Dr Graham Alfred
William Robinson and Graeme Henry Smith and a medical report of Dr McMurdo. In his affidavit, Mr Weldon deposed that in his view the appellant lacked the skills and appropriate legal knowledge to properly meet the proceedings
brought against him, and in particular, address by way of evidence issues of sentence. The proceedings in the court below were therefore conducted by the appellant in a manner which failed to provide proper and relevant
evidence to the court.
45 Despite the opposition of the respondent Prothonotary, the Court admitted this evidence.
46 In general, under s 75A(7) and (8) of the Supreme Court Act 1970, three conditions must be met
before fresh evidence can be admitted:
"(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(2) The evidence must be such that there must be a
high degree of probability that there would be a different verdict;
(3) The evidence must be credible.": Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.
47 It was common ground that the first
condition was not satisfied and that the third was. It was controversial whether or not the second was. The tests are general principles, or conditions applying to the generality of cases, but the statutory discretion is
capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances: Commonwealth Bank ofAustralia v Quade (1991) 178 CLR 134 at 140. The circumstances of
the present case are extremely unusual.
48 In opposing the application to tender the new evidence, the respondent first contended that the burden on the appellant was very heavy for sound reasons of policy. In
particular, it was said to be necessary to ensure that the principle of finality of decision was not subverted and necessary to avoid giving encouragement to litigants to run cases at trial on one basis and, if that failed, to
conduct the appeal on another basis with material which had been earlier kept up the sleeve. It was submitted that to admit the evidence would be to send a wrong signal and encourage tactics of that kind. However, the
respondent disavowed any submission that the appellant's conduct was to be explained in that way. The discretion must be exercised from case to case in the particular circumstances of each case, and it will be up to each
court to which an application is made to assess whether an impermissible attempt to use the trial as a dummy run is being made. The decision of this Court to admit the evidence should in no way be regarded as a precedent
whereunder someone appearing in person on sentence can defer the calling of available evidence until the matter comes before the Court on an appeal against any sentence imposed. In the course of his reasons for judgment the
trial judge, speaking of the rightness or wrongness of the complaints which the appellant had in relation to the justice system accepted "that such beliefs as he expresses are firmly held by him." There was no guile
or machination about the appellant's approach. He said to the trial judge: "So far as the severity of the sentence goes, you can say what you like but I intend to pursue truth-and justice wherever I am, in gaol or out
of gaol." He thus left the trial judge little course to do other than he did.
49 Secondly, the respondent pointed to the absence of any affidavit from the appellant explaining why he conducted the trial as he did.
This position is unsatisfactory, but the same mental state which stimulated the conduct of the appellant at the trial, including the conduct which amounted to contempts of court, appears to have led to his failure to give
evidence on the appeal.
50 Thirdly, the respondent contended that there was nothing in an analogy, relied on by the appellant, between the appellant's position and that of a victim of poor legal representation. It is
unnecessary to debate the merits of the analogy, either in general or in the circumstances of the case. The appellant, unrepresented at trial, failed to call evidence of some materiality on subjective factors, because he was
fixated on a contention, repeatedly put to the trial judge, and which he had earlier put unsuccessfully to Hidden J, to this court, to the High Court and to Sully J, that he was entitled to trial by jury. For that reason he did
not turn his mind, despite suggestions by the trial judge, to the importance of calling evidence of the type his advisers on appeal eventually prepared, beyond suddenly calling an almost useless witness who scarcely knew him.
51 The respondent suggested that the evidence in relation to the Obsessive Compulsive Personality Disorder was immaterial because the obsessive nature of the appellant would have been plainly obvious to the trial judge.
The suggestion lacks force. Inferences that might be drawn from observing the appellant's behaviour at the trial are inherently less significant than the conclusions asserted by a qualified medical expert backed by the
evidence of primary fact supporting that conclusion from witnesses who had known the appellant for many years.
52 The interests of justice thus favoured the admission of the evidence in a very unusual case.
Orders
53 I would make the following orders:
1.Appeal allowed.
2.Quash the sentences imposed on the appellant on 9 November 1999.
3.In lieu thereof sentence the appellant on each count to a fixed term of
imprisonment of 3 months and 20 days to commence from 9 November 1999 to be served concurrently.
4.Order that the appellant be released on the making of these orders.
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