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Supreme Court 17 February 2014

R v Abdallah

[2014] NSWSC 110

Public order & justice offences
CRIMINAL LAW TRIAL CONTEMPT OF COURT REFUSAL BY WITNESS TO GIVE EVIDENCE

Citation: R v Abdallah [2014] NSWSC 110
Court: Supreme Court of New South Wales
Date: 17 February 2014
Judge(s): Campbell J

Background

The underlying proceedings concerned the trial of an accused charged with murder and attempted murder arising from a shooting in broad daylight in Sans Souci, a southern Sydney suburb. The Crown alleged the accused shot and killed one man after a street confrontation, then chased a second man with the intention of murdering him as well.

The second man, the alleged victim of the attempted murder count, was also a witness to the shooting. He had declined to provide a statement to police during the investigation, which was his right. He was subsequently served with a subpoena requiring him to give evidence before the court at a pre-trial hearing known as a "Basha inquiry" (a procedure by which a judge assesses the evidence a proposed Crown witness would give before the jury trial begins).

When called to give evidence, the witness either claimed he could not remember the relevant events or sat in silence and declined to answer questions altogether. After an adjournment to take legal advice, he confirmed to the court that he remained unwilling to answer questions.

  • Whether the witness's refusal to answer questions constituted contempt in the face of the court.
  • What the appropriate procedural steps were upon forming that view.
  • Whether bail should be granted to the witness pending determination of the contempt charge.

Decision

Campbell J was satisfied that the witness's wilful refusal to answer questions put to him in the proceedings constituted contempt in the face of the court. The court noted that no explanation had been offered for the refusal, despite the witness being legally represented. A suggestion raised at an earlier committal proceeding that a psychiatric condition might prevent him from giving evidence was not supported by any material before the court.

The judge decided to charge the witness formally with contempt, then stand the matter over until the conclusion of the trial. The witness would be brought back before the court at that point to be dealt with on the charge. This approach was designed to preserve the possibility that the witness might choose to purge his contempt by agreeing to give evidence during the trial.

On the question of bail, Campbell J acknowledged that the witness had complied with subpoenas and had even attended a police station to accept service, suggesting he was not a flight risk. However, the judge weighed those factors against the interests of the administration of justice, concluding that the serious nature of the charges in the underlying trial made it imperative that the court treat the witness's obligation to give evidence with corresponding seriousness.

The court refused bail and committed the witness to custody on remand, reasoning that detention would give him the opportunity to reconsider his position and potentially purge his contempt by indicating a willingness to testify. Campbell J noted that the purpose of the law of contempt in this case might be frustrated if bail were granted.

Orders Made

  • The witness was formally charged with contempt of the Supreme Court of New South Wales arising from his wilful refusal to answer questions when required to do so.
  • The witness was committed to custody until the conclusion of the trial, at which point he would be brought before the court to answer the contempt charge. Bail was refused.
  • A non-publication order was made under section 7 of the Court Suppression and Non-Publication Orders Act 2010 covering the proceedings from when the witness was called to give evidence until he was committed into custody, to prevent prejudice to the proper administration of justice.

Key Takeaways

  • A witness who wilfully refuses to answer questions when required to do so in criminal proceedings may be charged with contempt in the face of the court, even where that refusal is expressed through silence rather than an explicit verbal refusal.
  • Campbell J confirmed that a Basha inquiry, which assesses the evidence a proposed Crown witness would give prior to the jury trial, is a proceeding in which the contempt power applies.
  • Refusing bail is available as a response to contempt by a recalcitrant witness where the court determines that the interests of the administration of justice outweigh other considerations, even in the absence of evidence that the witness poses a flight risk or a danger to others.
  • The absence of any explanation for a refusal to give evidence, particularly where the witness is legally represented, is a factor the court may take into account when determining how to exercise its contempt powers.
  • A non-publication order may be made to protect the integrity of ongoing trial proceedings where publicity about a witness's contempt could prejudice the jury trial.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases:
- Basha (referred to in the judgment as the authority for the pre-trial inquiry procedure; full citation not provided in the text)