15 September 2020

Mooning, Rabelais and Contempt

Noted for an article on contempt, gesture and carnival ...

A Judge has demanded heightened security after he was "mooned at" in court. 
Last Friday Brian Joyce (21) slapped his exposed bare backside shouting "Up the Joyces! Up the Clare Joyces!" Mr Joyce of St Enda's, Beechpark, Ennis then turned around to expose his penis to a shocked Judge Patrick Durcan. 
Mr Joyce's actions came after Judge Durcan refused bail to his brother, John Joyce (18), of St Enda's, Beechpark, Ennis. 
Judge Durcan suspended court sittings and went to his chambers. 
Upon his return to court, he said what had occurred "was the worst outbreak of violence I have ever witnessed in a court either as a practitioner or as a judge". 
The judge said that behaviour in the courtroom had "sunk to a level of depravity that I've never encountered before". 
In the first court sitting since the incident at Ennis yesterday, Judge Durcan told the court that there was "an appalling breakdown in security" in court on Friday. 
He described the events as "shameful". 
He told Inspector Tom Kennedy: "As and from tomorrow and including family law days, convey to the Chief Superintendent that I will not sit in any court unless it is advised to me in chambers in advance who the court guard is." 
He added: "I have made no demands as you know in the four years in matters of this nature, but events that occurred here last Friday put the sitting court registrar at great risk and disrupted the business of the court". 
"That type of situation should not be allowed to occur again. It is something that should have been anticipated." 
Judge Durcan said: "I am making my position very clear. I am not going to hang around if the facility of the court guard is not available when the court sits." 
Gordon Deegan, 'Judge asks for tighter security after court 'mooning'', (Dublin) Irish Independent 28 October 2015, 7.

and in Australia last week in Vitale v The Queen [2020] VSCA 237 [32] - 

Upon the hearing on 10 September 2020, the appellant remained unrepresented. He appeared via audio-visual link from a room at Barwon Prison. When asked by the Court what he wanted to say in support of his appeal, the appellant asserted somewhat truculently that the Court did not ‘give a fuck about [his] circumstances’. Notwithstanding that his tone and attitude were aggressive and disrespectful, the Court asked the appellant on several occasions to stop and listen to what the Court was saying to him. It is fair to say, however, that he conducted himself in such a way as to challenge the Court’s authority, continued to interrupt and loudly talk over the Court, and proceeded to deliver a vituperative tirade, the central theme of which seemed to be that the Court was treating him unfairly. Having for a time tolerated the appellant’s invective, the Court indicated to the appellant that if he had nothing further to say in support of his case, the Court would hear from the respondent’s counsel. Regrettably, shortly after counsel commenced to address the Court, the appellant stood up from the table at which he had been seated, took down his trousers, bent over, exposed his buttocks to the camera and pulled his buttocks apart so as to expose his anus, saying: ‘You just copped a anus [sic], if you want to talk to him again, let me know’. As the respondent’s counsel remarked somewhat understatedly, this behaviour was ‘not very helpful’. Plainly, the appellant’s quite unattractive gesture was calculated to display his contempt for the proceeding. He further demonstrated that contempt shortly afterward by storming out of the room in which he had been situated. The Court then invited counsel for the respondent simply to rely on his written submissions. He did so.

In DPP v Johnson [2002] VSC 583 the Court states

[35] Shortly after the sixth incident at 2.28 p.m. Wenitong and Paisley stood up on the seat of the dock in Court 4 and bared their buttocks to the camera. This action was not a momentary one but consisted of an extended exposure dramatised by a swaying motion and a manual parting of the cheeks. Johnson and Sonnet emphasised the event by pointing and gesticulating. I find that the seventh incident constituted contempt of court by Wenitong, Paisley, Johnson and Sonnet. Like the sixth incident, the seventh incident was intended to indicate implacable opposition to the continuation of the trial and was a deliberate continuation of the "circus" intended to increase pressure on the learned trial Judge and ultimately achieve termination of the trial. 

[36] Despite the fact that the sixth and seventh incidents occurred in the absence of the jury and the witness, I regard them as severe contempts. In my view they went beyond simple insults. They were both calculated to and manifestly had the tendency to escalate the disruption of the effective running of the trial. They were intended to disrupt the hearing and place illegitimate and improper pressure on the trial Judge. Further they had the obvious tendency to create a situation where the continuation of a proper trial would become impossible.

In R v Ogawa [2009] QCA 307 - dealing with the sad case of the law academic who gained much attention for 'mooning' the Queensland District Court - the judgment states

The Court did everything in its power to persuade you or permit you to participate in the trial. In my view, you wilfully set out to obstruct the trial proceeding. In doing so you not only caused distress to everyone involved in the trial but created obvious security difficulties for the Corrective Services officers who are responsible for your safety and security. Your behaviour involved what I regard as derogatory statements about the Court and the system of justice, constant loud screaming in Court and physical struggle with the Corrective Services officers. You also attempted to disrobe in Court. I do not regard your conduct as being driven by a psychiatric condition or the effects of it, although your personality disorder may have been an influencing factor in your decision to behave as I have described. You had many opportunities to desist from your behaviour in Court but you ignored my requests that you do so and ignored the advice of friends and of Mr O'Gorman who intervened as a friend of the Court to try to persuade you to participate in a constructive way in the trial. You rejected those opportunities and in my view you did so wilfully. I note on some occasions when you were removed from the Court you stopped screaming after the door was closed before there was an opportunity to take you to the cells downstairs. 

I reject your apology. I do not believe it to be genuine. I doubt that any other Court has ever had to endure the level of disgraceful conduct that you are responsible for in the course of this trial. A charge of contempt could have been found before the verdicts were delivered. Indeed, I made at least one and possibly more statements about a charge of contempt being open for consideration in the course of the trial. However, I never gave up on the hope that your behaviour would improve and that you would participate in the trial. In those circumstances, the making of the charge of contempt in the course of the trial would have been contrary to that hope and it may have rendered what was a futile expectation on my part, nugatory." 

... Having reviewed the evidence with respect to the appellant's conduct, his Honour found the charge proved. His Honour said: "I am satisfied beyond reasonable doubt that the evidence of your conduct amounts to a contempt of Court in the terms that I have charged you. I am also satisfied that your conduct has in reality given rise to a real risk of undermining public confidence in the administration of justice. I find the charge of contempt proved. I find you guilty of the charge and I convict you of it."