Citation: Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969
Court: Supreme Court of New South Wales, Common Law Division
Date: 2 November 2001
Judge(s): Studdert J
Background
The defendant had been arrested in February 2000 and subsequently agreed to cooperate with police by giving evidence against a co-offender, Abdul Khan, who faced charges of armed robbery. The defendant signed a formal undertaking to that effect in June 2000. When the defendant was later sentenced in the Children's Court for his own robbery offences, the magistrate gave him a credit of six months in aggregate specifically because of that undertaking.
When Khan's trial commenced in the District Court in May 2001, the Crown called the defendant as a witness on a voir dire (a preliminary hearing to determine admissibility of evidence). Once sworn, the defendant refused to answer a series of straightforward and material questions put by the Crown Prosecutor, including whether he remembered giving an undertaking, whether a document bore his signature, and whether he had been interviewed by police.
Judge Armitage QC, who was presiding over the Khan trial, charged the defendant with contempt in the face of the court and referred the matter to the Supreme Court under section 203 of the District Court Act. The Principal Registrar of the Supreme Court then brought the contempt proceedings by summons before Studdert J.
Legal Issues
- Whether the defendant's repeated refusals to answer material questions while a sworn witness constituted contempt of court at common law
- Whether any justification existed for those refusals
- What sentencing regime applied to common law contempt, including whether the Crimes (Sentencing Procedure) Act 1999 governed the sentencing exercise
- What penalty was appropriate in the circumstances, including whether periodic detention could be ordered
Decision
Studdert J made all six declarations of contempt sought in the summons. The defendant was a competent and compellable witness, he had been duly sworn, and his refusals to answer material questions were unjustified. The court found each refusal constituted a separate act of contempt.
On sentencing, the court considered the applicable legislative framework and concluded that the Crimes (Sentencing Procedure) Act 1999 governed the sentencing of a contemnor for common law contempt. This meant that periodic detention was available as a sentencing option, even though the contempt was not a statutory offence.
The court surveyed a wide range of comparable cases, acknowledging that penalties varied significantly because the appropriate sentence depends heavily on the particular features of each case. Relevant circumstances here included the defendant's prior agreement to give evidence, the credit he had already received at sentence for making that undertaking, and the impact of his refusal on the District Court proceedings.
Studdert J determined that a sentence of twelve months' imprisonment for each count, served concurrently and by way of periodic detention, was appropriate. The court was satisfied that periodic detention was a suitable mode of service in the circumstances and did not fix a non-parole period given that the sentences were to be served periodically.
Orders Made
- Six declarations made that the defendant was guilty of contempt of court (corresponding to paragraphs 1 to 6 of the summons)
- The defendant sentenced to twelve months' imprisonment for each contempt, with all sentences to be served concurrently
- Each sentence directed to be served by way of periodic detention, commencing 16 November 2001
- No non-parole period fixed
- Costs ordered against the defendant
- Liberty to apply on 48 hours' notice regarding implementation of the commencement order
Key Takeaways
- A sworn witness who refuses without justification to answer material questions in court proceedings commits common law contempt, and each separate refusal can constitute a distinct contemptuous act.
- The Crimes (Sentencing Procedure) Act 1999 applies to the sentencing of contemnors for common law contempt in New South Wales, making available the full range of sentencing options under that Act, including periodic detention.
- Appropriate penalties for contempt by witness refusal vary considerably from case to case; the sentencing court examines the specific nature of the contempt, its consequences, and all relevant features of the contemnor's conduct and circumstances.
- Where a defendant has already received a sentencing benefit (such as a reduced sentence in earlier proceedings) in exchange for an undertaking to give evidence, that prior benefit is a relevant consideration when assessing the gravity of a subsequent refusal to honour the undertaking.
- Referral of a contempt committed in the District Court to the Supreme Court under section 203 of the District Court Act is the proper procedural pathway, with the matter then proceeding before a judge of the Common Law Division under the Supreme Court Act 1970.
Legislation and Cases Referenced
Legislation:
- District Court Act (NSW), s 203
- Supreme Court Act 1970 (NSW), ss 48(2)(i), 49
- Evidence Act (NSW), s 38
- Supreme Court Rules (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 70
- Sentencing Act 1989 (NSW)
- Periodic Detention of Prisoners Act 1981 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309
- The Registrar of the Court of Appeal v Gilby (unreported, Court of Appeal, 20 August 1991)
- Wood v Staunton (No. 5) (1995) 86 A Crim R 183
- Attorney General for New South Wales v Whiley (1993) 31 NSWLR 314
- ICAC v Cornwall (unreported, Abadee J, 8 September 1993)
- Wood v Galea (1996) 84 A Crim R 274
- Wilson v The Prothonotary [2000] NSWCA 23
- Smith v The Queen (1991) 25 NSWLR 1
- Registrar of the Court of Appeal v Raad (unreported, 9 June 1992)
- Registrar of the Court of Appeal v Craven 120 FLR 464
- Wood v Moller (unreported, Dunford J, 15 November 1996)
- Crime Commission v Johns (unreported, 1997 and 1998)
- R v Georgiou [2000] NSWSC 287
- R v Duncan [2000] NSWSC 440
- The Honourable Mr Acting Justice Ireland v Russell [2001] NSWSC 468