Case: Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
Outcome: referred to
The Tribunal then proceeded to consider whether the proceedings before Buddin J could be described as having resulted in a conviction for a criminal offence. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 and Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. The tribunal then said: '24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal. 25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent's Statement of Facts and Contentions.' 35 The Authority submitted that the reasoning in Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386, did not affect the construction of s 312(1)(e) despite the fact that this might mean that similar wording in that section would create different results were the contempt alleged one that had been determined in a court established under Ch III of the Constitution . This result was supported because it was said that a law of a State could include that State's common law and its statute law, including ss 22 and 23 of the Supreme Court Act 1970 (NSW) and the fact that in Attorney General v Whitley (1993) 31 NSWLR 314 at 320A-D, to which Buddin J had referred, it appeared that the finding of guilt in effect of the charge of contempt was a conviction of the criminal offence. 88 The tribunal referred (at [16]) to Buddin J's reference ([2004] NSWSC 493 [12] to Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320B-C where Clarke, Meagher and Handley JJA said that a conviction for contempt was a conviction for an offence which is criminal in nature. However, the Court of Appeal was dealing with a case in which the contempts alleged were, if proved, 'criminal' on any view because they amounted to interferences in the course of justice by improperly attempting to influence a judicial officer hearing a matter and bringing improper pressure to bear on a party to that matter. 89 The Court of Appeal there held (31 NSWLR at 321C-D) that the provisions of the Sentencing Act 1989 (NSW) applied to a conviction for contempt. Mr Seymour argued that such a conviction cannot become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act. However, the conviction is either of a criminal offence or it is not, whatever the provisions of Pt VIIC may provide. 90 Under s 85ZM(2)(b) of the Crimes Act 1914 (Cth), a conviction for an offence is spent at the end of 10 years after conviction if a person is not sentenced to imprisonment at all or if the sentence is for less than 30 months. In s 85ZL 'State law' is defined as meaning '... a law in force in a State (other than a Commonwealth law)' and 'State offence' as meaning '... an offence against a State law'. In contrast, in s 85ZL , 'Commonwealth law' is defined by reference to an Act, an instrument or other legislation. I am of opinion that the definition of 'State law' is intended to include the unwritten law of the States and Territories as well as written laws.