The role of the courts is to administer justice—fairly, efficiently and with authority. Contempt of court is any conduct that interferes with the ability of the courts to perform
their role. This can include conduct inside a courtroom, such as a witness refusing to answer questions, or conduct outside a courtroom, such as publishing information about
an accused person that has not been heard in court.
The offence of contempt of court is often described in case law as sui generis, which means that it belongs to a species all of its own and so is unique. Under the common law, it is not possible to define with precision what conduct might be liable to punishment as a contempt of court. Courts’ contempt powers come from its inherent power to protect the administration of justice.
Contempt of court is the area of law which deals with behaviour which might affect court proceedings. It takes many different forms, ranging from disrupting court hearings to disobeying court orders to publishing prejudicial information which might make the trial unfair. If someone commits a contempt of court, they can be punished, although the procedures for deciding whether they are guilty and for punishing them are currently different from those used for normal crimes.
Publication
Under the Contempt of Court Act 1981(UK), strict liability contempt by publication (discussed above) only applies to publications. The Act defines publication to include speech, writing, programmes (and other similar broadcasts) and any other form of communication. These publications must be “addressed to the public at large or any section of the public”.
Contempt in the face of the court
Contempt in the face of the court concerns misbehaviour, usually in the courtroom itself, that disrupts or shows disrespect towards the court or challenges the authority of the court. However, there is no precise legal definition of contempt in the face of the court.
Examples of contempts in the face of the court include:
(1) assaulting anyone in court;
(2) insulting the judge in court;
(3) throwing a dead rat at the court clerk (a live rat would also count!);
(4) wearing offensive clothing or not wearing any clothing at all in court;
(5) refusing to answer a question when ordered to do so by the judge; and
(6) creating a disturbance elsewhere (such as in the corridor outside the
courtroom) so that the court hearing is disturbed.
[UK Law Commission Consultation Paper No 209]
Uncertainty of scope
Under the common law, it is not possible to define with precision what conduct might be liable to punishment as a contempt of court. In 1906, Justice Cussen in the Supreme Court set out a broad definition of contempt of court which has since been cited with approval many times, including by the High Court:
Its essence is action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using
that term in a broad sense.
Following from this definition, Victorian courts have, in general terms, held that:
The offence of contempt will be established if it can be proved beyond reasonable doubt that the alleged contemnor wilfully engaged in conduct and that conduct had a tendency to interfere with the administration of justice.
It is not necessary to prove that the alleged contemnor had an intention to interfere with the administration of justice.
It is not necessary to prove that the conduct did in fact interfere with the course of justice.
Case law and academic texts list and describe general categories of contempt. However, these do not provide an exhaustive catalogue of the ‘many and varied’ ways in which a person may be found to be in contempt of court. At its highest, a list of the categories of contempt is a list of thematically grouped examples of conduct which the courts have found, in the past, to be an interference with the proper administration of justice and therefore punishable as contempt. Conduct which constitutes contempt of court may fit within multiple categories or it may not fit within any established category but still be regarded as contempt. [Victoria Law reform commission: General issues with the law of contempt of court]
Victoria Law reform commission collected some common form of conduct as contemptuous
• Contempt by conduct that interferes with a court proceeding—this includes disruptive and abusive behaviour in court, and witnesses refusing to answer questions. (Now known as contempt in the face of the court.)
• Contempt by non-compliance with a court order or undertaking—this involves
disobeying orders made by a court or undertakings given to a court. (Now known as
disobedience contempt.)
• Contempt by publishing material prejudicial to legal proceedings— this includes
publishing material that could make a trial unfair, for example by publishing
information not before the court that may influence a juror to believe the accused was
guilty. (Now known as sub judice contempt.)
• Contempt by publishing material undermining public confidence in the judiciary or courts—this includes publishing material that makes false claims about the integrity of a judge or magistrate. (Now known as scandalising contempt.)
• Interferences with and reprisals against those involved with a court proceeding—this includes threatening or harassing people involved in court proceedings to influence
the proceedings, or punishing them for what they do or say in court.
What is the purpose of the law of contempt?
The purpose of the law of contempt is to protect the proper administration of justice. This concept is important but difficult to define. It requires that:
• People have unhindered access to an independent, impartial and competent court
system to determine their legal rights and liabilities.
• The courts determine cases in accordance with the rule of law and uphold the right to
a fair hearing.
• There is public confidence in, and respect for, the authority of that system.
This in turn requires that:
• The independence, integrity and impartiality of the judiciary are protected.
• Except in unusual cases where the law restricts access to the court or restricts the
reporting of proceedings, the court is open to the public and news media,10 including
access to court files and written submissions.
• Cases are heard in an orderly and efficient manner, free from disruption.11
• Cases are decided on the basis of the evidence before the court and free from outside
influence.
• Witnesses are able to be compelled to attend and give evidence so decisions can be
made on the best evidence.
• Jury verdicts are based only on properly adduced evidence after free, frank, and
confidential jury discussions, and the finality of verdicts is protected.
• Those with duties to perform in the court, including witnesses, jurors and legal
practitioners, perform those duties in a safe environment and free from interference
and harassment,15 and do so fairly and honestly and in accordance with the directions
of the court and any undertakings given to the court.
• Orders made by the courts are complied with and enforced. [ Victoria Law reform commission Report on Contempt of Court]
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