R v Kirsten (a pseudonym) [2024] NSWDC 401 offers an outstanding account of judicial courtesy and the difficulties of dealing with pseudolaw exponents.
The judgment states
The accused indicated that rather than the name set out in the indictment she would only answer to the name “Kirsten a living woman” or “Kirsten... not her legal fiction name”: Tcpt, 5 August 2024, pp 19 and 42. I indulged her.
At earlier call-overs she had advised the Court that she would not be legally represented. At trial she said she was not representing herself but “presenting on behalf of herself as a living woman”: Tcpt, 5 August 2024, p 37. I indulged her.
When the charge was read in front of the accused and the jury panel, she refused to enter a plea. She said: “I need to tell everyone here again in the presence of you jury potentials that I caused this court case, it wasn't the prosecution or the Department or the Court who caused this court case. I'm a living woman, I'm not a legal name, fiction and the matters that bring us here today is partly to address that ongoing problem that in society here of many, many people suffer, we have many, many what we would call unfair cases in every day where children are removed from loving homes on the basis of what's written on a piece of paper where there's not much evidence provided, if any, and where the mums and dads that come in are treated as if they're infants or otherwise incapable of representing themselves.”: Tcpt, 5 August 2024, p 42.
I entered a not guilty plea on her behalf. A jury of 12 was empanelled. During the empanelling process the accused loudly questioned the fairness of the ballot as most of the jurors called initially were women. She exercised her three challenges. Three female potential jurors were excused. The solicitor advocate, from the Director of Public Prosecutions appearing for the prosecution, indulged her by challenging another two women. A jury of seven women and five men swore oaths or affirmations that they would give a true verdict according to the evidence.
During the course of the next five days of the trial the accused repeatedly interjected, directed personal insults to me and others, harassed witnesses (including her own sons), refused my directions and orders and talked over me excessively. She repeatedly asserted she was: (a) “In control of the proceedings”; and (b) That I was denying her what she called “procedural fairness”.
During the course of the 5-day trial, she was cautioned repeatedly that her behaviour was in contempt of court.
Although I was initially concerned about her fitness to plead it soon become clear that her disobedience was wilful. This was confirmed when she addressed the jury at the end of the trial: see par [217] below.
I soon formed the opinion that Kirsten was deliberately trying to undermine the trial process in order to the secure a discharge of the jury and a delay in hearing the serious allegation made against her by forcing me into heavy handed action that would make presentation of her defence impossible, thus rendering the trial unfair.
Accordingly, despite her constant provocations, I indulged her. I also repeatedly asked the jury for their indulgence.
By Day 5, after the close of the prosecution case, and after giving her the opportunity to present her case, it became apparent that she was seeking to prevent the trial concluding. I again cautioned her that I had the power to deal with her for contempt of court. I particularised those contempts. I gave her the opportunity to seek legal advice. She continued to abuse me and talk over me, further demonstrating her contempt for the Court and its processes. I charged her with contempt of court and had her taken into custody.
I then offered her the opportunity to address the Court from the dock in a respectful manner. She continued with her attempts to disrupt the proceedings. I had her removed from the Court and made orders that she appear via video link from the cells: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BA.
The trial proceeded to verdict. She was convicted. I then finalised the contempt proceedings. Kirsten was given an opportunity to defend her actions. Rather than do so she continued with her contemptuous behaviour. I convicted her, but in all the circumstances I felt the only penalty I should impose was that she be held in custody until the rising of the court.
Her sentence proceedings were adjourned until 18 December 2024. A prosecution detention application was granted. As a sentence involving full-time imprisonment was inevitable, bail had to be refused. There were no special or exceptional circumstances shown to justify a decision to grant bail: Bail Act 2013 (NSW), s 22B.
Kirsten has indicated that she intends to appeal her conviction. Notwithstanding her assertion that the court’s rules and procedures do not apply to her, she has a right to appeal her conviction and assert error in my decisions: Bradley v The Crown [2020] QCA 252; Maher v R [2021] NSWDC 212 at [9]. During the course of the hearing, I made a number of procedural rulings and legal determinations. The Court staff who prepared a transcript of these proceedings did a magnificent job but given Kirsten's disruptions, and as she constantly talked over me and others, the transcript is difficult to decipher, some rulings were unable to be completed and others required elaboration.
Accordingly, I now set out some of the critical rulings made during the trial and my reasons for making those rulings. It is important that the reasons for those decisions be put into intelligible form so that what was said and done in this Court can be understood and, if necessary, reviewed. ...
A judge can go only so far to prevent an accused prejudicing their own case. A judge can advise but cannot require an accused take advice or prevent them acting contrary to that advice. A judge should however, attempt to ensure that the jury focus on the issues and not on irrelevancies.
At the end of Day 3 as the accused spoke over me, I sought to reduce the potential for prejudice: “Can I just to reinforce two things. I am acutely conscious that we have taken you from your other lives and you should get back to them as soon as possible. I also appreciate that sometimes Kirsten doesn’t listen or doesn’t want to listen. That when I say things, she does the exact opposite. I hope that that has not disturbed you or my insistence that things happen have not disturbed you, but again, I just ask that you continue to focus on the evidence and the material that is relevant to the charge. And you have the formal charge in the indictment and the elements of that charge are set out in it, and I will, when all of the evidence is over, give you a document setting out - breaking that down into what has to be proved beyond reasonable doubt for the prosecution to bring the case and the accused has no obligation to prove her innocence or rebut that case, they have to prove the case beyond reasonable doubt and I’ll keep your focus on that ... as she doesn’t - she can’t hear what I’m saying because she won’t stop talking: Tcpt 7 August 2024 p 321.
Similar directions were given regularly during the trial: see pars [70], [147] and [166] below.
Insulting conduct
At a number of times during the trial and in front of the jury, the accused directed personal insults toward me. For example, “There's a talking parrot in the corner, or the barking dog ...”: Tcpt, 9 August 2024, p 444.
An insult directed to a judge in open court may amount to a contempt of court as to wilfully insult a judge in the course of proceedings in court necessarily interferes, or tends to interfere, with the course of justice: Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 at [689]; Ex parte; Tuckerman Re Nash [1970] 3 NSWR 23 at [27]. The critical question is not how the particular judge feels about the insult, but rather whether the conduct undermines the integrity of the court as an institution and thereby weakens the authority of the court and tends to interfere with the administration of justice: R v Davison (1821) 4 B & Aid 329; Ex parte Beltanto; Re Prior [1963] SR (NSW) 190 at [202]; Rich v Attorney General [1999] VSCA 14; (1999) 103 A Crim R 261 (Calloway JA) at [55]; Prothonotary of the Supreme Court v Simon Smiley (Supreme Court (NSW), 8 March 2005 unrep); Prothonotary of the Supreme Court v Hall [2008] NSWSC 994; Prothonotary of the Supreme Court v Fajloun [2016] NSWSC 927.
Consideration
Judges should not be thin-skinned. We are acutely conscious of how stressful litigation is. We are acutely conscious of the stresses imposed on a person defending themselves. Not everyone has the capacity to control their emotions. Words are sometimes said in the heat of the moment. Words that are immediately regretted. Here the words were used deliberately. They were not regretted. They were intended to distract the court and produce a reaction that might later be seen to be biased against the accused or undermine the perception of the impartiality that is fundamental to a fair trial: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. I chose not to rise to the ‘bait’. The administration of justice is robust. The insults were both pathetic and bathetic . To respond to them with force or outrage would have added ‘fuel to a fire’. They did not undermine the integrity of the court as an institution. The jury saw through them. The laugh they had was on the accused not the Court.
Termination of accused's cross-examination of witness
A judge has a duty to assist an unrepresented accused. A judge also has a duty to every witness called in the proceedings. Section 41 Evidence Act 1995 (NSW) provides that: “The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question")- (a) is misleading or confusing, or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).”
During the course of the trial the accused asked many improper and disallowable questions. She asked them of every witness called, including her teenage son, who she called in her own case. I was forced to either, disallow questions put or inform the witness that they need not be answered. More often than not, given the accused refused to formulate proper questions, I was forced to explain to the witness they did not need to respond to an assertion that was not a question. ...
The accused was brought back to Court and placed in the dock. She was formally charged with contempt of court and particulars provided. She was advised: “Ms [Deleted] who prefers to be known as ‘Kirsten’. You are hereby charged with contempt of court, in that, on 9 August 2022 at Wollongong in the Wollongong District Court, in proceedings before me between You and the Director of Public Prosecutions for the State of New South Wales (the Crown), you did conduct yourself in a manner that had a real tendency to interfere with the administration of justice.
The particulars of the charge are-- 1. That you have, for the past four days, persistently disobeyed directions of the Court, the orders of the Court, and requests of the Court. 2. You have refused to acknowledge the authority of the Court. 3. You have insulted the judge and others in Court on numerous occasions. 4. Against that background, this morning: a. You refused my requests not to you talked over me. b. You interfered with the conduct of the proceedings. c. You sought to of your own volition, adjourn the proceedings. d. You sought to leave the Court without pausing in your speech so as to enable the trial to properly proceed. e. Despite my showing you all indulgences. You were given the opportunity to desist and comply. The transcript will provide further particulars. You have a right to answer the charge. I will give you an opportunity if you wish, to seek legal advice. If you stop talking, apologise and give me an undertaking that you will allow the proceedings to continue without interruption. I will consider your release. At the moment, I determine that you be kept in custody until you either apologise, or stop your disruptions.”: Tcpt, 9 August 2024, pp 452-454.
I then asked, “Do you wish to seek to adjourn the charge of contempt or make a defence to it?”: Tcpt, 9 August 2024, p 455. I then directed that pending disposal of the charge; she be kept in custody as the Court determines.
That bland statement of particulars cannot capture what actually occurred in Court. Nor does it set out her continuing contempt of court. What follows is a transcript of my attempt to particularise the contempt:
“HIS HONOUR: Yes. So, she is now to be brought before the Court. Put her in the dock. Thank you. Take a seat in the dock.
ACCUSED: Is the jury coming back or--
HIS HONOUR: Take a seat in the dock, you are under arrest.
ACCUSED: I wasn't aware I was under arrest.
HIS HONOUR: You weren't listening when I arrested you.
ACCUSED: Well, it was a bit hard to know what was going on. I was being manhandled against my consent.
HIS HONOUR: Kirsten [Deleted] who prefers to be known as Kirsten.
ACCUSED: I am not Kirsten [Deleted]. I don't know who you're talking to.
HIS HONOUR: You are hereby charged with contempt of Court--
ACCUSED: Who has provided evidence that it had anything to do with me?
HIS HONOUR: --in that, on 9 August 2022 at Wollongong in the Wollongong District Court, in proceedings before me between you and the director of public prosecutions or the state of New South Wales or the Crown, you did conduct yourself in a manner that had a real tendency to interfere with the administration of justice.
ACCUSED: Never mind your conduct, your Honour.
HIS HONOUR: The particulars of the charge are-- ACCUSED: Never mind your conduct.
HIS HONOUR: --that you have, for the past four days, persistently disobeyed directions of the Court, orders of the Court, requests of the Court. You have refused to acknowledge the authority of the Court. It is against that, and insulted the judge and others in Court on numerous occasions.
ACCUSED: It's all a matter of interpretation and opinion your Honour, that--
HIS HONOUR: It is against that background, that this morning when you refused--
ACCUSED: --and that's what the jury is supposed to witness. But you don't want the jury to be able to witness this harassment.
HIS HONOUR: When you talked over me--
ACCUSED: Because it was supposed to be before a jury, whatever happens here.
HIS HONOUR: --when you interfered with the conduct of the proceedings--
ACCUSED: You are hiding from a jury--
HIS HONOUR: --when you sought to of your own--
ACCUSED: --what you are doing behind closed doors with me.
HIS HONOUR: --volition, adjourn the proceedings and leave the Court without pausing--
ACCUSED: We cannot proceed with my chat with my son--
HIS HONOUR: --in your speech to enable the trial to properly proceed--
ACCUSED: --until there is a jury before us.
HIS HONOUR: --and having shown you all indulgences.
ACCUSED: This is against my consent for there to be no witnesses here--
HIS HONOUR: You were given the opportunity to desist--
ACCUSED: --from my people peers. We will have to--
HIS HONOUR: --or comply or--
ACCUSED: --call this all fraudulent because it is against my consent to be withheld or detained.
HIS HONOUR: And the transcript will provide further particulars.
ACCUSED: I am not under your statutory jurisdiction. It's not law. They are policies.
HIS HONOUR: I direct you have a right to answer the charge.
ACCUSED: You haven't even proceeded fairly within your own legal belief that it's lawful.
HIS HONOUR: And I will give you an opportunity if you wish, to seek legal advice.
ACCUSED: Yes, you would have to say that, but you know I am here--
HIS HONOUR: I can--
ACCUSED: --to make remedy as the one who is a living woman--
HIS HONOUR: --if you stop talking, apologise--
ACCUSED: --who is not what you perceive as a--
HIS HONOUR: --and give me an undertaking--
ACCUSED: --dead entity, talking to me as a legal fiction.
HIS HONOUR: --that you will allow the proceedings to continue without interruption.
ACCUSED: This is just a show of ridiculousness.
HIS HONOUR: Then I will consider your release, right?
ACCUSED: So, proceed with your show.
HIS HONOUR: At the moment, I determine that you be kept in custody until you either apologise or stop your disruptions.
ACCUSED: Never.
HIS HONOUR: All right. Can we have the jury brought in, please?
ACCUSED: You can do as though wilt in your--
HIS HONOUR: And in the meantime, directions can sort out that she has been formally charged with contempt--
ACCUSED: --sinister attitude.
HIS HONOUR: --and she has been--
ACCUSED: You think you are above the law, and you have all your men and women here--
HIS HONOUR: You have been orally advised.
ACCUSED: --acting as your--
HIS HONOUR: Do you wish to seek to adjourn--
ACCUSED: --as your--
HIS HONOUR: --the charge or--
ACCUSED: --you know, gophers, because they get paid to--
HIS HONOUR: --make a defence to it?
ACCUSED: --lock people up at your will, against their consent, and--
HIS HONOUR: Pending on disposal of the charge, I direct that you be kept in custody--
ACCUSED: --you are calling me someone I am not.
HIS HONOUR: --as the Court determined.
ACCUSED: This does not seem to be me. I'm not [Deleted]. I don't know who you're talking about. Do you have any evidence that this refers to me? Tcpt, 9 August 2024, pp 452-455:
Kirsten chose to represent herself. Kirsten chose not to seek advice from lawyers or any guidance from me about her conduct of her trial. She chose not to listen. She chose to obstruct the trial. She chose to proceed on the basis that the laws of New South Wales did not apply to her. She chose to be rude and offensive to the prosecution, witnesses, the judge and the jury. She did so in the presence of her jury. She was fit to be tried. Her actions were deliberate and considered. She was, in all respects, “the maker of her own misfortune”: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [184].
