Contempt of court or contempt for the court?

Research Brief 23


In 2016 the domestic violence epidemic shows no signs of slowing down. It seems Australian men are going mad. Women – and children – are dying as a result. The ever-increasing tally of deaths and serious injuries is prompting many to demand that the legal system needs to do more to address this criminal behaviour.

But is this an epidemic of criminal behaviour or could it be the result of decades – centuries even – of ineffectual responses by the legal system that are putting an increasing number of women and children at risk?

Anastasia Powell highlighted just last week the ways in which ‘our current laws are unable to respond effectively’ to the use of modern technologies in domestic violence crimes.

Two months ago Helen Campbell, head of Women’s Legal Services NSW, criticised the judicial system, claiming it ‘does not always understand the nature of domestic violence and the sort of pressure women are under when they go to court.’

Ms Campbell was commenting on a recent case in New South Wales. The magistrate’s response to an alleged victim’s refusal to answer questions was to charge her with contempt.

Once inside the courtroom the woman had testified that there had been no assault. She had made the story up. She said she had been drunk. She had trouble standing and was slurring her words when she called 000 and when the police interviewed her. The woman then refused to answer any further questions. ‘I’m finished talking, thank you.’

A similar case in the US made headlines in 2015 as well. In answer to a woman’s claim that court made her anxious, the judge said ‘You think you’re going to have anxiety now?  You haven’t even seen anxiety,’ before sending the woman to prison for contempt.

Rewind 150 years. In August 1867 Llewellyn Spencer was charged at the Central Police Court with feloniously, maliciously and willfully wounding his wife, Ellen, causing her grievous bodily harm. When the police arrived at the Spencers’ Sydney home, Ellen told them that Llewellyn had caused the injuries. The Spencers’ landlady had heard them arguing. When she checked on Ellen, Llewellyn himself said to her ‘I have done it and will be hanged for her yet.’


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At her first court appearance on 25 October Ellen refused to be sworn or to testify. The magistrate held her in contempt and imprisoned her until her next appearance on 30 October. At this time she again refused to give evidence, saying she had no idea how she got the injuries. It appears that Ellen was released from prison at this point. At Llewellyn’s trial two weeks later in the Supreme Court, Ellen did testify. She recalled the day in question. She had been ‘very tipsy’. In her drunken state she had fallen off a chair. She couldn’t remember telling the police or her landlady that Llewellyn had caused her injuries. She knew nothing of how she got the injuries. She did not think her evidence was necessary. She did not like to say anything against her husband.

In 1867 justice moved swiftly and it moved decisively. The jury of twelve men took just five minutes to find Llewellyn guilty. Ellen went home. Her husband went to prison. Twelve months. No parole. No suspended sentence. No second – or third or fourth – chance to redeem himself.

The similarities between these two cases speak volumes about the legal system’s failure to effectively reform process and procedure for dealing with this type of crime in court.

In comparison a smaller number of equally devastating one-punch deaths have resulted in a much stronger response from legislators.

As a crime, domestic violence is undoubtedly more complex than other violent crimes. But what these two cases highlight is that the legal system is still serving up the same responses as it did 150 years ago. Only now it’s much slower. Women, too, are responding in the same way as they did 150 years ago.

This is despite all the research and knowledge we have of the impact that domestic violence can have on victims; how it can affect their ability to give evidence in court and what the implications are then for the prosecution process.

Queensland’s new Domestic Violence Court promises to offer a better approach. Announcing the new scheme, Minister for Women Shannon Fentiman said ‘When women are courageous enough to speak out about abuse and take their matter to court, we have to make sure we have the services to support them.’ Support services are one thing. A supportive court process is another issue entirely.

New South Wales is now allowing domestic violence victims to give their evidence-in-chief via pre-recorded video recordings. While this should reduce the time witnesses spend in court, it doesn’t change the fact that they may still have to go to court to be cross-examined.

The implications of victims of domestic violence refusing to testify are substantial – for the victims, their families and the community.


Author: Robyn Blewer, PhD candidate

To cite this research brief: Robyn Blewer, ‘Contempt of court or contempt for the court’, The Prosecution Project, Research Brief 23, (17 June 2016, viewed 19 July 2016).