Markisic v Cth & Anor

(2007) 69 NSWLR 737; [2007] NSWCA 92

NSW Court of Appeal

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Interrogate

Catchwords

1. Contempt
2. › Civil and criminal contempt
3. › Distinction between civil and criminal contempt
4. › Whether charge of contempt for failure to comply with subpoena is civil or criminal contempt
5. › Whether appeal lies from acquittal
6. › Supreme Court Act 1970 (NSW), s 101(5), (6)
1. Contempt
2. › Subpoena to produce documents
3. › Failure to comply with subpoena
4. › Elements to be proved
5. › Whether alleged contemnor had documents of the type called for
6. › Mental element of contempt
7. › Standard of proof beyond reasonable doubt
8. › Witham v Holloway (1995) 183 CLR 525
1. Courts and Judges
2. › Bias
3. › Actual bias
4. › Whether trial judge displayed actual bias
5. › Refusal of adjournment
6. › Failure to reprimand alleged contemnor
1. Precedent
2. › Proposition of law assumed to be correct but not argued or considered in earlier decision
3. › Whether binding

Quick Take

To establish contempt for failure to comply with a subpoena to produce documents, it must be proved beyond reasonable doubt that the alleged contemnor had documents of the type called for at the relevant date, and that the failure to produce was deliberate and not casual, accidental or unintentional. Mere non-production is insufficient. The question whether a charge of contempt for failure to comply with a subpoena is civil or criminal in nature for the purposes of s 101(6) of the Supreme Court Act 1970 (NSW) was left open.