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Online comments about Judges

 

As Ministers in the Turnbull Government are before the Victorian Court of Appeal to show cause why they should not be dealt with for contempt for comments made about a currently reserved case in that Court including accusing Judges of being ‘ideological’ and failing to apply the law, two recent other contempt cases are illustrative.

On 21 January 2016 Troy La Rue appeared in the New Plymouth District Court in New Zealand before Judge Allan Roberts to be sentenced for unpaid fines amounting to $6 244.00.  Upon being sentenced to 300 hours of community service in substitution for payment of the fines Mr La Rue was presented with a printed page containing a comment he had made just over a week earlier on social media regarding the story about Judge Roberts’ retirement.  After some prompting, Mr La Rue read aloud “LOL I hope the fuckers gone by Friday.  Ha ha.  Fucker, nah fuckin cunt his old face and saggy chin.  Fuck off”.  After confirming that the subject of the comment was indeed Judge Roberts, Mr La Rue apologised and acknowledged he had been caught out.   

In this example the serendipitous appearance of Mr La Rue before Judge Roberts provided an opportunity for the comment, which was entirely unconnected to any proceedings, to be addressed.  Such a comment can be classified as gratuitous nastiness and forms one end of the spectrum upon which on line comments about judicial officers may fall.

Towards the higher end of the spectrum is the example provided in the UK case of Daniel and Samuel Sledden.    On 16 February 2016, these two brothers were each sentenced to a term of imprisonment of two years, wholly suspended for drug offences.  Forty minutes later, 27 year old Daniel Sledden posted a status to Facebook expressing his disbelief at how lucky he was to have escaped a custody sentence that finished with an invitation to Judge Beverley Lunt to “go suck [his] dick”.  Samuel Sledden, aged 22, comments on the remark shortly after they were posted reflected his brother’s response to receiving a suspended sentence, albeit in more sedate terms. 

Upon becoming aware of the comments, Judge Lunt called the pair for review of their sentence and after a 10 day adjournment to consider the implications of the on line comments, during which bail was refused, the suspension was revoked and full time custody was ordered.  During the adjournment, Judge Lunt considered whether the comments amounted to contempt, harassment or any other criminal offence – concluding they did not.  Instead, the comments were used as evidence of the brothers’ lack of remorse and used as a factor in the redetermination of their sentence.  Unlike the La Rue case, the comments in this matter were directly connected to the proceedings and were not only disrespectful towards the Judge, but could be perceived as mocking the process[1].

The lesson to be learnt from this is that on line comments about Judges can land you in a lot of trouble.

 

By Terry O’Gorman 

16 June 2017

 


[1] See Privacy Law Bulletin Vol 14 no. 3 2017 “On line comments and contempt” by Leah Findlay University of NSW @ p46

 

Federal Government Ministers to appear before the Victorian Court of Appeal

On Thursday June 15 Terry O’Gorman was asked by ABC Radio Current Affairs to comment on reports in the Australian that morning that the Registrar of the Victorian Court of Appeal had called on various Federal Government Ministers to appear before the Victorian Court of Appeal to make submissions as to why they should not be prosecuted for contempt. 

The letter from the Judicial Registrar of the Victorian Court of Appeal asserted that statements attributed to various Federal Government Ministers appeared to intend to bring the Court into disrepute.  The Ministers’ comments appeared to assert the Judges have and will apply an ideologically based predisposition in deciding a sentence appeal in a terrorism case and that the Judges will not apply the law.

Mr O’Gorman in his interview with ABC Current Affairs distinguished between legitimate, even robust criticism of Judges on the one hand and comments that may be found to be in contempt on the other. 

Mr O’Gorman said that criticism of Court decisions was a regular, if not daily, event in Australia.

Criticism is one thing but to suggest, particularly, that Judges in a current Appeal Court hearing would not properly apply the law but would apply their individual ideology in deciding a case is a serious allegation. 

Mr O’Gorman said that the Victorian Court of Appeal appearance was the first step in the proceedings.  If the Court found that cause had been shown as to why a matter should not be referred for prosecution for contempt, that would be the end of the matter. 

If, on the other hand, the Victorian Court of Appeal does refer the Federal Ministers for prosecution for contempt, it is then up to the prosecution authorities to themselves make the decision as to whether they will prosecute.

Mr O’Gorman said that strong criticism of Court Judgments is one thing, but to attack a Judge let alone three Judges on a Court of Appeal suggesting that their approach was ideological and that they would not properly apply the law was very close to a contempt of Court. 

Mr O’Gorman said that prosecution for contempt of Court particularly in respect of politicians was a relatively rare event, but a prosecution of this type may well be necessary in order to delineate the boundaries between robust free speech on one hand and comments by Senior Ministers in Federal Government which may be said to deliberately and calculatedly challenge the integrity of the Court itself.

 

By Terry O’Gorman

15 June 2017

Law Clerk: Robertson O’Gorman Solicitors

Robertson O’Gorman Solicitors is seeking to recruit a law clerk into the firm which is based in Brisbane. The role would commence during university break and continue into second semester.

Are Judges out of touch?

Last week, the Queensland Sentencing Advisory Council launched their new website, “Judge for Yourself”. It is hoped that the tool will change the perception that judges are out of touch with the public.