Citation: R v Bilal Razzak [2006] NSWSC 1366
Court: Supreme Court of New South Wales
Date: 7 December 2006
Judge(s): Johnson J
Background
The contemnor was called as a Crown witness in a high-profile criminal trial involving charges of murder and attempted murder arising from a violent dispute between two families in south-western Sydney. He was himself the named victim in two of the counts on the indictment, having allegedly been shot at by the principal accused in June 2001. When required to take the oath or make an affirmation before giving evidence, he flatly refused.
Bell J charged him orally with contempt of court under Part 55 r 3(a) of the Supreme Court Rules on 14 July 2006, the day the refusal occurred. The contempt proceedings were adjourned and eventually came before Johnson J, before whom the contemnor entered a plea of guilty on 29 November 2006.
The underlying criminal trial concluded with serious convictions. The principal accused was convicted of multiple murders and received life sentences. The court therefore had to determine the appropriate penalty for the contemnor's wilful refusal to participate as a witness in proceedings of considerable gravity.
Legal Issues
- What is the correct approach to sentencing for contempt of court constituted by a witness's refusal to take an oath or affirmation in a criminal trial?
- What weight, if any, should be given to a claimed subjective fear of giving evidence?
- What is the relevance of guilty plea, personal deterrence, general deterrence, and denunciation in this sentencing exercise?
- Whether a non-parole period should be set, or whether a fixed term was appropriate under s 45 of the Crimes (Sentencing Procedure) Act 1999.
Decision
Johnson J found that the contempt was objectively serious. The court accepted that some level of subjective fear could reasonably be expected in a witness in the contemnor's position, given the nature of the underlying proceedings. However, the contemnor had taken no steps, such as applying for protective custody or other protective measures, to assist himself in discharging his obligation as a witness. Other witnesses in the same trial had overcome their apprehension and given evidence with the assistance of available protective arrangements.
The court placed significant weight on personal and general deterrence and denunciation. It noted that sentences imposed in other contempt cases provided limited guidance, because the nature and consequences of contempt vary greatly between matters. The court expressly declined to treat prior contempt sentences as establishing a reliable tariff.
Johnson J concluded that no sentence other than full-time imprisonment was appropriate, and that the sentence had to add meaningfully to the contemnor's existing term of imprisonment. The guilty plea and subjective matters were taken into account but could not displace the need for a substantial custodial term.
Consistent with that conclusion, the court declined to set a non-parole period under s 45 of the Crimes (Sentencing Procedure) Act 1999. Johnson J found that a lesser actual period of imprisonment than 15 months would not be adequate in the circumstances.
Orders Made
- The contemnor was convicted of contempt of court.
- Sentenced to a fixed term of imprisonment of 15 months, commencing 20 August 2007 and expiring 19 November 2008.
- No non-parole period was set, pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
- A witness's wilful refusal to take an oath or affirmation at a criminal trial constitutes a serious contempt of court, warranting full-time imprisonment where the underlying proceedings involve grave charges and other witnesses overcame comparable fears to fulfil their civic duty.
- Subjective fear of giving evidence may be a mitigating factor, but its weight is diminished where the contemnor took no concrete steps, such as seeking protective custody, to address that fear before refusing to be sworn.
- Sentences imposed in other contempt matters provide limited assistance in fixing the appropriate penalty, given the highly variable nature and consequences of contempt across different cases.
- Under s 45 of the Crimes (Sentencing Procedure) Act 1999, a court may decline to set a non-parole period where the nature of the offence and the need for adequate punishment make a fixed term more appropriate.
- General deterrence and denunciation are critical sentencing considerations where a witness refuses to participate in a serious criminal trial, reflecting the court's duty to protect the integrity of the judicial process.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Supreme Court Rules, Part 55 r 3(a)
Cases:
- R v Darwiche and Others [2006] NSWSC 1167
- R v Darwiche and Others [2006] NSWSC 926
- R v Abusafiah (1991) 24 NSWLR 531
- R v Razzak [2004] NSWCCA 62
- R v Taber and Styman; Re Shannon Styman [2005] NSWSC 1329
- Trad v Pickles Auction Pty Limited; In the Matter of Carl Trad [2006] NSWSC 1177
- Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183
- Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527
- Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported)
- C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported)
- Wood v Staunton (No. 5) (1996) 86 A Crim R 183
- Wood v Galea (1996) 84 A Crim R 274
- Wood v Galea (1997) 92 A Crim R 287
- Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964
- R v Garde-Wilson [2005] VSC 452
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Attorney General for NSW v Whiley (1993) 31 NSWLR 314
- Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309
- R v Morgan (1993) 70 A Crim R 368
- R v Araya (2005) 155 A Crim R 555