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Wednesday, 20 April 2011

Zukanovic v Magistrates' Court at Moorabbin [2011] VSC 141: judicial review of a contempt proceeding

Edit: Costs were awarded against the Magistrates' Court: Zukanovic v Magistrates' Court of Victoria at Moorabbin (No 2) [2011] VSC 160.







This incident of apparent courtroom contempt was originally noted here.

The bubble-blower, Zukanovic, was found guilty of contempt in the face of the Magistrates' Court and sentenced to a month's imprisonment. He was released on bail by the Supreme Court the same day. He then applied for judicial review under O 56 of the Supreme Court Rules.

In determining the review Forrest J walked a line between preserving the ability of courts generally to charge and punish contempt, while ruling that the magistrate had over-reached on this occasion.

Forrest J identified two issues of significance [at 27]:

  • Firstly and primarily, was Mr Zukanovic afforded procedural fairness once he was charged by the Magistrate with contempt?
  • Secondly, given that the charge was laid under s 133 of the Magistrates' Court Act 1989, did the Magistrate follow the correct procedure prior to laying the charge; if he did not, then was he deprived of jurisdiction to determine the charge?


The procedure itself was considered adequate, but procedural fairness was lacking. Forrest J found [at 6], 'firmness must be accompanied by fairness'.


The Supreme Court frequently referred to the decision of Magistrates' Court at Prahran v Murphy (1996) 89 A Crim R 403, a decision which involved the same magistrate.

After reviewing other authorities, Forrest J said [at 41],

In light of these clear and unambiguous statements of principle, a fair hearing of the charge of contempt against Mr Zukanovic required the following steps to be taken by the Magistrate prior to determination of the charge.

First, to set out the charge. This could be done either orally or in writing. What was essential was that Mr Zukanovic understood the charge the Magistrate was laying.

Second, to afford Mr Zukanovic the opportunity to consider the charge and if necessary, to seek further legal advice, or an adjournment or, perhaps, further particulars of the charge: see Murphy at 210.

Third, to give Mr Zukanovic the opportunity to state whether he pleaded guilty or not guilty to the charge.

Fourth, in the event that Mr Zukanovic pleaded not guilty to the charge, to give him the opportunity to present evidence and to make submissions relevant to the determination of the charge.

Then, having adopted this procedure, the Magistrate was required to be satisfied beyond reasonable doubt that Mr Zukanovic was guilty of the charge: Witham v Holloway (1995) 183 CLR 525. In doing so, he was required to consider carefully all the evidence and keep at the forefront of his mind the unusual role he was undertaking in this process.


The Supreme Court quashed his conviction and sentence.

2 comments:

Jeremy Gans said...

A pity that the Charter was dismissed (by the defendant, the A-G as contradictor and, it seems, the court) as adding nothing to the common or statutory law of Victoria: at [62].

The caselaw from the UK and the ECHR on the right to an impartial tribunal strikes me as arguabkymore hostile to summary contempt proceedings (at least where the judge is the 'victim', or the judge is witness to disputed facts, or where the judge acts angrily or harshly) than the Australian case law cited in Zukanovic. See Wilkinson v S [2003] EWCA Civ 95, [24]-[26] & Kyprianou v Cyprus [2005] ECHR 873, [127].

Habeas Corpus said...

Also have a look at Beasley v Lane [2011] WASC 98.