Prothonotary of the Supreme Court of New South Wales v Shane Dowling

WILSON J: The Prothonotary of the Supreme Court of New South Wales seeks declarations that the defendant, Shane Francis Dowling, is guilty of three counts of contempt of court. The summons filed on 27 March 2017 claims the following relief:

At a hearing before me on 4 May 2017 the defendant pleaded that he is not guilty of contempt of the Supreme Court.

This judgment concerns the relief claimed at prayers (1) to (3) of the summons.

On 3 February 2017 the defendant appeared before a Registrar of this Court in a Directions List of the Common Law Division in the matter of Jane Doe 1 & Anor v Shane Dowling. These are proceedings in defamation taken against the defendant, in which he is representing himself.

An audio recording of what occurred at the directions hearing that day is before the Court as Ex. WM1. The defendant does not dispute that his is the voice that can be heard making a number of assertions which the Crown describes as scurrilous. The comments, directed to the Registrar presiding over the list, are as follows:

The defendant does not dispute saying these words. The recording captures the tone and manner in which the words were spoken, and that can best be described as loud and aggressive.

At the time of the mention of the matter, and the utterance of these words, at a little after the commencement of the 9am list, there were at least 40 persons present in the courtroom (Ex. A.5 [6]; Ex. A.2, p.47). A hush fell over the courtroom as the defendant spoke, as those present paused to listen to what was said (Ex. A.5 [9]).

The Registrar warned the defendant that “steps would be taken” against him as a consequence of what had been said by him in Court.

During the afternoon of 3 February 2017 the defamation proceedings involving the defendant were mentioned before Beech-Jones J, sitting as the Common Law Duty Judge. At the mention the Prothonotary filed a Notice of Motion seeking suppression orders with respect to the earlier mention before the Registrar. A copy of the transcript of the mention was tendered and marked as Exhibit 1 in proceedings on the Motion before his Honour.

Whilst the defendant had been notified of the Prothonotary’s intention to file the Motion, he did not appear before the Court.

His Honour made the suppression order in the terms sought, as follows:

His Honour also made a second order, as follows:

The Motion was stood over until 8 February 2017 for further mention.

The defendant was notified that evening of the orders made by the Court, and a sealed copy of the orders was supplied to him.

On 5 February 2017 an article, which the defendant acknowledges having written and published, appeared on his website, a website bearing the domain name https://kangaroocourtofaustralia.com. The article was headlined “[Named judicial officer of the Supreme Court] has journalist charged with contempt for accusing him of corruption”. The “journalist” referred to in the article was the defendant.

The article had embedded into it a link which took readers to an audio-visual recording that the defendant had made of the mention before the Registrar on 3 February 2017. The defendant acknowledges that he made the recording in court, and uploaded it to his website, and also to another site, youtube.com.

In the article, next to a prominent call for donations, the defendant accused the named judicial officer of the Supreme Court of being “a bribe taker and paedophile which I have previously written on my website” (Ex. A.3, p.45). He wrote,

The link to the recording followed.

In his article the defendant acknowledged having given the Registrar “a mouthful” (ibid) on 3 February 2017, and referred to the claims he then made about the Registrar and the second named judicial officer of the Supreme Court. The claims that the second named judicial officer of the Supreme Court was a paedophile were repeated and other allegations against judicial officers, including an allegation of paedophilia against a named judge of the District Court, were made. The defendant wrote,

The defendant went on in the article to acknowledge receipt of a copy of the orders made by Beech-Jones J on 3 February 2017, and to publish them in full. He wrote,

He noted, “[t]hey are also going to charge me with contempt”.

At the end of the article another prominent call for donations appears.

Similar posts appear on the Facebook page of an organisation styled “Kangaroo Court of Australia”, and operated by the defendant. The post has numerous comments, apparently from other Facebook users who read the post.

It was common ground at the hearing before me that the defendant had written the relevant article, had published the material knowing that to do so would breach orders made by the Court, and continued to maintain the material on his website (at least) to the date of the hearing.

The Prothonotary argues that the defendant’s conduct in making the allegations he made in court on 3 February 2017 was an act calculated to impair public confidence in the Court and the administration of justice, and constitutes contempt of the Supreme Court. Further, in publishing the recording of the allegations made in court on 3 February 2017 it is argued that the defendant deliberately defied an order of the Court, being the first of the orders made by Beech-Jones J, and is thus in contempt of the Supreme Court. Finally, the Prothonotary contends that, in publishing the detail of the allegations made on 3 February 2017 and nominating the officials against whom they were made, the defendant deliberately breached the second of the orders made by Beech-Jones J, and is guilty of contumacious contempt of the Supreme Court.

As noted above, the defendant does not deny making the statements in court of which the Prothonotary complains, or publishing suppressed material on his website and on other websites.

He tendered and relies upon the following material in his defence to the charges:

Excluding Exhibits SD1 and SD2, the evidence tendered by the defendant consists of material apparently published by him on his website and in book form. Much of it refers to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, and complains of “light sentences” for persons convicted of child abuse (Ex. SD3, p.2 for example), or complains of corruption in the judiciary, law enforcement agencies, and prosecuting authorities.

Some of the material, such as Ex. SD4 and Ex. SD9, makes the same or similar claims to those made by the defendant in open court on 3 February 2017.

Exhibits SD10 and SD11 contain copies of correspondence to various judicial officers in which the defendant warns the individuals to whom he wrote that he intended to publish allegations against each, of bribe taking, corruption, and paedophilia.

The defendant relies upon the decisions of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 and argues that neither his oral allegations of corruption and paedophilia, nor his written and published material can constitute a contempt of court because it represents political communication. He submitted,

There was no issue at the hearing before me that the defendant did the acts complained of by the Prothonotary. That is, the defendant

Although the defendant raised a semantic argument to the effect that he had not directly alleged that the second named judicial officer of the Supreme Court was a paedophile, his argument was about the meaning that might be taken from the words, rather than to deny that he spoke them.

The question for the Court is not whether the acts were carried out by the defendant as alleged, since he - somewhat proudly - acknowledges his conduct, but rather whether the acts amount to contempt and whether there is a defence available to the defendant of the nature he claims.

All contempt proceedings are criminal in nature and the three charges brought by the Prothonotary must be proved beyond reasonable doubt if he is to be declared guilty of them: Witham v Holloway (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ.

Historically, contempts were classified as criminal or civil contempts, with criminal contempts being those committed in the face of the court or involving deliberate defiance of a court order, whilst civil contempts involved disobedience to a court order or breach of an undertaking in civil proceedings: Witham at 530. The distinction is no longer material: Australasian Meat Industry Employees’ Union and Others v Mudginberri Station Proprietary Limited (1986) 161 CLR 98, at 106 – 107.

Since the defendant takes no issue with the case brought against him by the Prothonotary, raising only a defence of “political speech”, it is convenient to turn immediately to the claimed defence.

As noted above, the defendant submits that he has available to him a defence of political speech by virtue of the principles set out in Lange v Australian Broadcasting Commission (“Lange”), and Coleman v Power.

Lange is a case about defamation and the question of a defence of qualified privilege in actions of libel and slander.

The Court held that there was a qualified privilege at common law that applied to statements made in the course of discussion or debate about political matters. It is based upon the conclusion that the public has a legitimate interest in receiving information concerning the exercise of public functions by public officials, with the dissemination of such information the correlative of receiving it. The qualified privilege is subject to malice, and the publisher acting reasonably.

In Australia the common law categories of qualified privilege have generally protected only those communications made to a limited audience, rather than those to a wide audience, unless the whole of the audience have an interest in knowing the information. Publication beyond what was reasonably sufficient for the publication is not protected. The defendant to the defamation action must establish that the publication was reasonable.

As I understand the defendant’s argument, he submits that his assertions in the face of the court on 3 February 2017 (the first charge) were political communications and protected under the Constitution, on the Lange principle.

Coleman v Power is raised by the defendant with respect to the second and third charges. It is a case that arose from Mr Coleman’s conviction for using insulting words in a public place, an offence contrary to s 7(1)(d) of the Queensland Vagrants, Gaming and Other Offences Act 1931 (“the Vagrant’s Act). The insulting words relied upon as constituting the offence, “[t]his is Constable Brendan Power, a corrupt police officer”, were uttered in the context of a demonstration in a public street.

Mr Coleman contended that his conviction was inconsistent with the right to freedom of political communication implicitly conferred by the Constitution and that the legislation under which he had been charged was invalid as wrongly burdening that constitutional right.

There was no issue before the High Court that,

It was common ground that Mr Coleman’s contentions were to be considered by reference to the principles stated in Lange, and that a law would infringe the claimed constitutional freedom where it burdened communication about governmental or political matters, and either the object of the law is incompatible with the maintenance of the constitutional system of representative and responsible government, or the law is not appropriate to achieving its object (at [26]).

Ultimately, the High Court set aside Mr Coleman’s conviction, having concluded that the relevant provision in the Vagrant’s Act could not validly apply to insulting words uttered in the course of making statements concerning political or governmental matters.

Here, the defendant argues that the orders made by Beech-Jones J on 3 February 2017 were invalid and thus, like Mr Coleman, he cannot be held to have breached something that was invalid. He contends that the orders were invalid because the principles enunciated in Lange protected his comments as political speech, and political speech cannot validly be the subject of suppression orders. In submission the defendant said that political speech was,

In that the defence advanced by the defendant may have raised a constitutional question, following the completion of the hearing of the matter on 4 May 2017, the Court made orders in these terms:

No Attorney-General of a state, territory, or the Commonwealth has sought to intervene in the proceedings, and nor have any submissions on this point been received from any person other than the Prothonotary and the defendant.

As the lack of interest in the argument by the Attorneys-General may suggest, the defendant’s confidence in the availability of a constitutional defence is misplaced. The implied constitutional right of freedom of political speech to which he refers does not provide a defence to a charge of contempt of court relevant to conduct in the face of the court, and nor does it provide a defence to contempt based upon deliberate and intentional breaches of court orders. A defence of freedom of political speech has no application in the present context.

There is no doubt that the Constitution protects the freedom of "the people of the Commonwealth" to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution.

This implied freedom of political communication upon which the defendant relies operates as a constraint on legislative power and is required by ss 7, 24, and 128 of the Constitution: Lange at 557 and 560; Hogan v Hinch (2011) 243 CLR 506 at [92]; Unions NSW v New South Wales (2013) 252 CLR 530 at [36], [103] and [112]; McCloy v New South Wales (2015) 257 CLR 178 at [2] and [30].

The implied freedom is not, however, one which is at large and akin to a broad freedom of the nature of that guaranteed in the United States of America by the Fifth Amendment to the Constitution of that country. It is limited to what is necessary for the effective operation of the system of representative and responsible government provided for by the Constitution: Lange at 561.

As McHugh J observed in Levy v Victoria (1997) 189 CLR 579 at 622:

There is no legitimate basis to extend that freedom, confined as it is to communications concerning political and government matters relevant to the constitutional system of government, to the operation of the courts and the functions of judges. In John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 Spigelman CJ said (at [83])

Judicial officers perform a public role, but that role is not one which is part of or connected to the operation of constitutional representative government. Discussion of or comment upon the role of judges or the work that an individual judge has undertaken could not be regarded as communication concerning political or government matters relevant to constitutional government, so as to attract Constitutional protection.

The statements made by the defendant in court on 3 February 2017 (relevant to the first charge) and the content of the article published by him on 5 February 2017 (relevant to the second and third charges) cannot be characterised as communications which come within the scope of the implied freedom. The “defence” raised by the defendant is wholly illusory and nothing in Lange or Coleman v Powers provides for such a defence in the present context.

It is necessary then to determine whether the defendant’s admitted conduct constitutes contempt of court.

The principles applicable to the determination of a charge of contempt have been helpfully summarised by Garling J in Mahaffy v Mahaffy [2013] NSWSC 245 at [27], as follows:

This relates to the defendant’s loudly uttered allegations of corruption and paedophilia against a Registrar and a named judicial officer of this Court in the face of the Court, and in the presence of some 40 or 50 people, over whom silence fell during the course of the relevant comments. It is said by the Prothonotary to be an act of scandalising the Court, a particular category of contempt.

An allegation made to any person that he or she took bribes, or was a paedophile is obviously grossly insulting (and no doubt hurtful to the individual). Such gratuitous comments made to a judicial officer who was presiding over proceedings in a court do a more significant, public harm. The words said by Mr Dowling and the hostile and aggressive manner in which they were said necessarily interrupted the course of the proceedings before the Registrar, and diverted the court’s attention from the business before it. Baseless insults of this grave nature can also call into question the integrity of the court or of individual judicial officers. The defendant’s conduct thereby interfered with the course of justice and constituted an unwarranted obstruction to the administration of justice in the face of the Court (Lewis v Ogden (1984) 153 CLR 682 at 689; [1984] HCA 26).

Having considered the evidence, and particularly noting the defendant’s oft stated admission that he uttered the words in the face of the court, I am satisfied beyond reasonable doubt that he committed the contempt charged.

These allegations deal with the defendant’s acts in publishing on 5 February 2017 the contents of Exhibit 1 (of 3 February 2017 before Beech-Jones J) and the fact of the making of the allegations before the Registrar on 3 February 2017, their content, and the persons the subject of the allegations. The defendant concedes that he published this material, despite being well aware of the orders of the Court as to its non-publication.

Whilst the defendant asserts that the orders were invalid and therefore his conduct is incapable of constituting a breach of the orders, the orders were in fact valid and extant orders of the Court. There is no basis to conclude otherwise. The orders had been made by a judge of the Supreme Court, and they had not been set aside, or spent: State of NSW v Kable (2013) 252 CLR 118 at [32].

Once an order such as those made by Beech-Jones J is made the liability of the person subject to the order depends on the judicial order itself and not upon the legal basis for the order. To allow persons subject to the orders of superior courts to simply disregard the orders, despite the absence of a stay, on the basis that, if the orders are later set aside, they will not have been in contempt of court, would be entirely subversive of the place of court orders in the rule of law: Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506 at [116].

Wilful disobedience to an order of a court both challenges and diminishes the authority of the court. In wilfully defying the Court’s orders the defendant interfered with the administration of justice and frustrated the work of the Court.

I am satisfied beyond reasonable doubt that the defendant is guilty of the second and third charges of contempt of court.