I will be sentenced on Wednesday the 22nd of August and possibly jailed for contempt of court for saying something in court that was critical of a Supreme Court of NSW judge and Registrar Christopher Bradford. I cannot say what I said as there is a suppression order and bail conditions stopping me from doing so.
At the sentencing hearing on Friday (17/8/18) Justice Helen Wilson flagged the possibility that I will be sentenced to jail and directed me to show up Wednesday (22/8/18) prepared for jail.
No matter what happens on Wednesday we have had a win because the Commonwealth Director of Public Prosecutions have in effect given approval to the email I sent to the court in September 2016 and the article I published a few days later about judical corruption by withdrawing the police charge in March this year. That I regard as a good win for free speech and political communication and our rights to communicate issues regarding judicial corruption. (Click here to read more)
What I can repeat is the limited amount of information that is in published judgements on the matter. Justice Wilson put a suppression order on her judgment in August 2017.
In February 2017 I said something in court critical of Register Bradford and a judge. Contempt proceedings were instituted and there was a hearing on the 4th May 2017. A judgment was handed down on the 3rd of August finding me guilty of contempt of court for what I said and also for breaching suppression orders by publishing an article and details of what I said in court.
I was meant to sentenced a couple of months ago but it was delayed. I published an article titled “Chief Justice Tom Bathurst has dodgy suppression orders continued in contempt case against journalist Shane Dowling” on the 6th of June and said:
In August 2017 I was found guilty of contempt of court for something I said in court on the 3rd of February 2017 in what the evidence now shows was always a back-up plan in case a malicious police charge against me failed. The police charge has failed as the Commonwealth Director of Public Prosecutions withdrew the police charge on the 28th March 2018.
I’m scheduled to be sentenced next month for the contempt charge and for breaching the suppression orders put on the details of the contempt charge and Justice Helen Wilson has said words to the effect that there is a fair chance she will give me jail time.
What I said and against who was meant to have suppression orders on it and Monday last week (28-5-18) I tried to have the suppression orders lifted but the duty judge Justice Julia Lonergan refused. This has become scandalous as recently I found out that some of the details of my contempt charges that I thought were suppressed were actually published by Justice Robert Beech-Jones in February 2017. This included naming Registrar Christopher Bradford but for some reason the name of the judge is still suppressed. (Click here to read the full article)
I argued at the hearing that what I said was covered by the implied freedom of political communication as in the Australian Constitution as per High Court of Australia 1997 judgment Lange v ABC.
I have since come across other precedents that support my argument that criticism of judges is covered by the implied freedom of political communication which are:
The 2001 judgment of Jelena Popovic v Herald and Weekly Times Ltd and Andrew Bolt which related to Victorian Magistrate Jelena Popovic suing Andrew Bolt for an article he wrote about her in effect accusing her of being corrupt. Bolt lost the case but the trial Judge (Bongiorno J) found that communication accusing a judicial officer of criminal or corrupt conduct that could lead to their dismissal was protected as political communication. (Click here to read the full judgment) The trial judge also quoted 2 former High Court judges in their 1992 judgment of Nationwide News Pty Ltd v Wills (HCA) at paragraph 16:
16. Deane and Toohey JJ pointed out that the implication of freedom of communication operates at two levels. The first level of communication and discussion is between the represented and their representatives (amongst whom they include not only Parliament and its members but also ” . . . other Commonwealth instrumentalities and institutions . . .”). The second level at which their Honours considered the implication of freedom of communication and discussion operates is at the level of communication between the people of the Commonwealth. They explain this aspect of the implied freedom as being a freedom to communicate:-
“. . . information, opinions and ideas about all aspects of the Government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or who seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves .”
Their Honours included the exercise of judicial power as being one of the subjects in respect of which the implied freedom operated. (Click here to read the full judgment)
The Popovic v Bolt matter was appealed which he also lost but one of the appeal judges (Justice Gillard) agreed with the trial judge and another (Justice Winneke) said the Bolt case was not about political communication but went on to say at paragraph 10:
10. That does not mean that there can never be a discussion about a judicial officer which will, or might, be relevant to the system of representative and responsible government. It is not difficult to conceive of circumstances where discussion of the character and/or conduct (whether in or out of court) of a judicial officer is capable of amounting to a discussion on government or political matters in the relevant sense. (Click here to read the judgment)
The key part is (whether in or out of court) which means you should be able to criticise a judge just as freely inside the court as outside and that is the way it should be. I only came across the Jelena Popovic v Andrew Bolt precedent this year and I used it at the sentencing hearing on Friday.
It’s worth noting that the prosecution barrister David Kell who is obliged under the Barrister Rules, which is a Barrister’s ethics code, to inform the court of any precedent that they are aware of that refutes their own arguments and David Kell did not inform the court of the Popovic v Bolt precedent. Nor did David Kell inform the court of paragraph 16 of the Nationwide News Pty Ltd v Wills (HCA) precedent where High Court judges Deane and Toohey JJ said criticism of judges is protected as political communication as per the Lange v ABC precedent.
If I get jail time, make no mistake, I’ll be a political prisoner and I’ll do my best to drive the issue further. They can’t jail everyone although they would if they could.
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