Written by John Sutton
September 28, 2016
As an advocate who is in court day in and day out, there are a number of things I make sure my clients are aware of before they enter a courtroom. Court etiquette is one of those things, and is very important. I ensure that they know to bow when entering or exiting the courtroom, and to stand when the Magistrate or Judge enters the room.
Court etiquette of this type shows respect to the Court. Requirements of courtroom etiquette are passed down through the generations of legal practitioners, and is also something largely known to the wider community. Until now, legislating etiquette has not been required..
In 2015, during the District Court Trial of Milad bin al-Ahmadzai the Defendant refused to stand for Judge Gregory Farmer SC. At the time, the action caused outrage within the legal and broader community. The refusal to stand was considered to be so disrespectful that the NSW Attorney-General referred the conduct to the Solicitor-General to consider whether contempt of court charges should be pressed against Mr al-Ahmadzai.
Ultimately, it was concluded that contempt of court charges would not hold up. On reading of those charges, the wording of indicates that those charges were to deal with behaviour in the courtroom which is “intended to disrupt and undermine the operation of a court.” On assessment, the conclusion reached was that a refusal to stand for the Judge, whilst disrespectful, did not meet that threshold.
This prompted the introduction of the Court Legislation Amendment (Disrespectful Behaviour) Bill which came into force last week on 1 September 2016.
That Bill will amend five pieces of legislation by introducing an offence of ‘Disrespectful Behaviour’. Essentially, this offence arises if an accused person, defendant, party to proceedings or witness called to give evidence intentionally engages in behaviour in the courtroom during proceedings that is disrespectful to the court or presiding Judge or Magistrate. An offence under this section is so serious that the maximum penalty provided is 14 days imprisonment and/or a fine of 10 penalty units (currently $1,100) or both.
At this stage, the Bill provides that what is considered disrespectful will be judged according to “established court practice and convention.” This leaves a very wide scope of interpretation for the Presiding Magistrate dealing with the matter. I anticipate that what constitutes disrespectful behaviour will be tested, and we may have to wait a while before there is clarity on the matter. Certainly, it will be something that is interesting to watch.