PLAINTIFF APPEALS HIS SENTENCE AFTER PLEADING GUILTY TO CONTEMPT
Mokbel v County Court of Victoria & Anor [2021] VSC 191 (30 April 2021)
This is a case where Plaintiff pleaded guilty to contempt pursuant to S.134 of the Magistrates’ Court Act 1989. The plaintiff appealed the sentence to the County Court pursuant to S.254 of the Criminal Procedure Act 2009. The judge struck out the appeal for want of jurisdiction. Hence, this judicial review.
Facts:
The plaintiff was summoned to appear at the Magistrates’ Court at Melbourne for the purposes of a compulsory examination hearing. That hearing concerned an incident at a boxing event in March 2019 which resulted in four persons being charged with murder. The plaintiff had attended the event. He refused to make a police statement about the incident.
The plaintiff attended court. He was represented by counsel. He was sworn as a witness. Thereafter he refused to answer any question put to him by the prosecutor. His counsel informed the court that the plaintiff intended to remain mute.
He was charged and convicted by the magistrate of contempt of court and sentenced to 14 days’ imprisonment. The plaintiff lodged an appeal against the order of imprisonment to the County Court. That appeal was struck out for want of jurisdiction.
The plaintiff seeks judicial review of that decision.
The application raises the question of whether a proceeding for contempt of court under S.134 of the Magistrates’ Court Act 1989 (MCA) is a summary criminal proceeding which attracts the right of appeal in S.254 of the Criminal Procedure Act 2009 (CPA).
The plaintiff submitted that the phrase ‘adopt any procedure that the court thinks fit’ is S.134(2) of the MCA must be read as being subject to the CPA.
Issue: Is a proceeding for contempt of court under S.134 of the Magistrates’ Court Act 1989 a criminal act that can be subject to an appeal under the CPA?
Law:
Held:
Contempt is a criminal offense. Contempt proceedings are ‘criminal’ in nature but have clear procedural differences from a criminal trial. In Victoria, the presiding judicial officer hears contempt proceedings summarily. A jury is not impaneled. The charge must be distinctly stated and the accused afforded procedural fairness. The standard of proof is beyond reasonable doubt.
The contention of the plaintiff that the phrase ‘adopt any procedure that the court thinks fit’ in S.134(2) of the MCA must be read as implicitly constrained by the CPA and, specifically, Part 3.3 of it, cannot be upheld.
First, to do so would be an unacceptable contortion of the words of the statute. It is plain that the phrase is very broad. It gives a magistrate a very wide power to respond to whatever form the challenge to the authority of the court the alleged contempt assumes. Second, that the power is constrained by the need to afford the alleged contempt or natural justice does not limit the power such as to require it to fall within the procedure established in Part 3.3 of the CPA. Third, the choice by a magistrate to adopt a procedure that resembles a proceeding under Part 3.3 of the CPA, in contradistinction to one that does not, cannot be the basis on which an appeal under s 254 of the CPA is competent.
Therefore, a proceeding under S.134 of the Magistrates’ Court Act is not ‘a criminal proceeding conducted in accordance with Part 3.3’ of the Criminal Procedure Act..
Conclusion: The application for judicial review is refused. It follows that the order of this Court dated 26 November 2020 extending the plaintiff’s bail is revoked. The original order of the Magistrates’ Court which sentenced the plaintiff to imprisonment for 14 days is confirmed.
