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Local Court 4 May 2018

R v Moutiaa Elzahed (No 2)

[2018] NSWLC 13

Public order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES MISCELLANEOUS OFFENCES AND MATTERS DISRESPECTFUL BEHAVIOUR IN COURT WHETHER EFFECTIVELY BURDENED

Citation: R v Moutiaa Elzahed (No 2) [2018] NSWLC 13
Court: Local Court of New South Wales
Date: 4 May 2018
Judge(s): Magistrate Huntsman

Background

The defendant was one of four plaintiffs in civil proceedings in the District Court of New South Wales, in which damages were sought from the Commonwealth and the State of New South Wales arising from a search warrant executed at the plaintiffs' home in 2014. During those proceedings in November and December 2016, a person wearing a niqab (a face covering that leaves only the eyes visible) was present in the courtroom as a party. That person repeatedly failed to rise when the presiding judge entered or departed the courtroom.

Nine court attendance notices were issued against the defendant, each alleging an offence of disrespectful behaviour in court under section 200A(1) of the District Court Act 1973 (NSW). The defendant's identity as the person in the niqab was initially contested but was ultimately conceded by defence counsel during the hearing.

The prosecution was described as the first of its kind under section 200A. The parties agreed it raised important questions of statutory construction, and the defence also mounted substantial constitutional challenges to the validity of the provision itself.

  • What conduct constitutes "disrespectful behaviour in court" within the meaning of section 200A(1), and specifically whether failing to stand for a judge satisfies that definition
  • Whether the prosecution proved all elements of the nine offences beyond reasonable doubt, including identity and intention
  • Whether section 200A(1) impermissibly burdened the implied freedom of political communication under the Commonwealth Constitution
  • Whether section 200A(1) was invalid under Chapter III of the Commonwealth Constitution as incompatible with the exercise of federal judicial power
  • Whether section 200A(1) was inconsistent with federal law and therefore invalid under section 109 of the Commonwealth Constitution
  • Whether the proceedings were validly commenced, including whether the Attorney-General's authorisation was properly delegated to the Solicitor-General

Decision

Statutory construction: The Magistrate found that failing to stand when a judge enters or departs a courtroom constitutes disrespectful behaviour "according to established court practice and convention" as required by section 200A(1)(c). Standing for the presiding judge is a well-established convention of Australian courtroom practice, and the defendant's repeated failure to do so fell squarely within the provision.

Proof of the offences: On the evidence, including CCTV footage, transcript, and witness testimony, the Magistrate was satisfied beyond reasonable doubt that the defendant was the person present in the niqab, that she intentionally failed to stand on each of the nine occasions alleged, and that her behaviour was intended to communicate disrespect for the court and the judge. All nine offences were found proved.

Implied freedom of political communication: The Magistrate accepted that failing to stand could, in some circumstances, constitute political communication. However, section 200A was found not to impose an impermissible burden on the implied freedom. The provision operates in a narrow and specific context, namely, the conduct of parties and witnesses within court proceedings, and its purpose of protecting the administration of justice and the integrity of the judicial process was accepted as compatible with the maintenance of the constitutional system of representative and responsible government.

Chapter III and section 109 challenges: The Magistrate rejected both remaining constitutional arguments. Section 200A was found neither to confer on District Court judges functions incompatible with their Chapter III role, nor to interfere with the court's impartiality or the parties' access to adjudication. The section 109 inconsistency argument was also rejected. The Magistrate concluded that section 200A(1) is a valid law of New South Wales.

Orders Made

• Section 200A(1) of the District Court Act is determined to be a valid law and is not rendered invalid by the Constitution

• All nine offences in breach of section 200A(1) of the District Court Act are found proved beyond reasonable doubt

Key Takeaways

  • Failing to stand when a judge enters or departs a courtroom constitutes disrespectful behaviour "according to established court practice and convention" for the purposes of section 200A(1) of the District Court Act 1973 (NSW).
  • A conviction under section 200A(1) requires proof that the behaviour was intentional and that it was disrespectful according to established convention; the Magistrate found that an intention to communicate disrespect through deliberate non-compliance with courtroom convention satisfies the mental element.
  • The implied freedom of political communication did not render section 200A(1) invalid; the Local Court found the provision's burden on that freedom, if any, was justified by the legitimate purpose of protecting the administration of justice within court proceedings.
  • Section 200A(1) was held not to infringe Chapter III of the Commonwealth Constitution, as it neither interferes with the exercise of federal judicial power nor compromises the institutional integrity of courts invested with that power.
  • This was the first prosecution brought under section 200A, making the Magistrate's analysis of the provision's construction and constitutional validity particularly significant for future proceedings of this kind.

Legislation and Cases Referenced

Legislation
- District Court Act 1973 (NSW), s 200A
- Commonwealth of Australia Constitution Act, ss 75(iii), 109
- Judiciary Act 1903 (Cth), ss 39(1), 39(2), 75B, 79(1)

Cases
- APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
- Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089
- Burns v Corbett & Ors [2018] HCA 15
- Coleman v Power [2004] HCA 39
- Dickson v R (2010) 241 CLR 491
- Fardon v Attorney-General (Qld) [2004] HCA 46
- Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
- Hogan v Hinch [2011] HCA 4
- Kable v DPP (NSW) (1996) 189 CLR 51
- Lange v Australian Broadcasting Corporation [1997] HCA 25
- Levy v the State of Victoria and Ors (1997) 189 CLR 579
- McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
- Monis v R [2011] NSWCCA 231
- Monis v R (2013) 249 CLR 92
- O'Hair v Wright [1971] SASR 436
- Rizeq v Western Australia [2017] HCA 23
- Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
- Wotton v State of Queensland [2012] HCA 2