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Supreme Court 17 February 2014

R v Abdallah (No. 2)

[2014] NSWSC 111

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

Citation: R v Abdallah (No. 2) [2014] NSWSC 111
Court: Supreme Court of New South Wales
Date: 17 February 2014
Judge: Campbell J

Background

The accused faced a murder charge arising from a shooting in the Sydney suburb of Sans Souci on 4 January 2012. The Crown alleged he shot the deceased multiple times in broad daylight during a street altercation involving the deceased and two other men. The proceedings before Campbell J were a Basha inquiry, a pre-trial procedure used to ascertain the likely evidence of a witness who has not made a statement, so the accused can understand the case against him.

One of the two companions of the deceased was called as a witness during the inquiry. He had declined to make a statement to prosecutors and had not otherwise cooperated with the Crown, which was his right. However, he did appear under subpoena and take an oath.

When asked about the relevant events, the witness repeatedly said "I don't remember." When the court pressed him on the apparent implausibility of that response, he attributed his total absence of recall to having taken a large amount of Xanax.

  • Whether a witness's repeated "I don't remember" responses could constitute a constructive refusal to answer questions, sufficient to ground a contempt charge.
  • Whether an adjournment should be granted to allow the witness to obtain pharmacological evidence about Xanax's effect on memory.
  • Whether the witness should be remanded in custody or granted bail pending determination of the contempt charge.

Decision

Campbell J refused the adjournment application. The court noted that the witness had known well in advance he would be called, having been subpoenaed at committal proceedings where a similar claim of psychological incapacity had been raised but never supported by evidence. No explanation was offered for why relevant pharmacological evidence was not available on the day of the inquiry.

On the contempt question, Campbell J applied the High Court's holding in Coward v Stapleton (1953) 90 CLR 573, which established that a refusal to answer questions lawfully required in proceedings can be proved by answers so plainly absurd as to convey an intention not to give any real answer. The court found, on a prima facie basis only, that the witness's responses fell into that category and that there was sufficient material to warrant charging him with contempt in the face of the court.

The court was careful to clarify that charging the witness was not a finding of guilt. The witness would have a full opportunity to answer the charge after the trial concluded, including by leading evidence and making submissions in his own defence.

On bail, Campbell J refused the application. The court acknowledged the witness was unlikely to be a flight risk and that there was no evidence of a risk to other witnesses or jurors. However, the court concluded that remanding him in custody was necessary to impress upon him the seriousness of his conduct and to give him a genuine opportunity to reconsider and purge his apparent contempt by indicating a willingness to return and give evidence properly.

Orders Made

  • The witness was charged with contempt of the Supreme Court of New South Wales arising from his wilful refusal to answer questions in the proceedings.
  • He was remanded in custody on a date to be fixed at the conclusion of the trial, with bail refused.
  • A non-publication order was made under section 7 of the Court Suppression and Non-publication Orders Act 2010, prohibiting publication of the proceedings concerning the witness, to prevent prejudice to the administration of justice by ensuring the incoming jury panel was not exposed to the events of the inquiry.
  • The non-publication order was to remain in force until further order and would dissolve upon the jury's verdict in the accused's trial.

Key Takeaways

  • Under Coward v Stapleton (1953) 90 CLR 573, a witness who gives answers so plainly absurd as to convey an unwillingness to genuinely respond may be treated as having constructively refused to answer, which can ground a contempt charge.
  • Charging a witness with contempt in the face of the court does not constitute a finding of guilt; the accused retains the right to answer the charge, lead evidence, and make submissions at a later stage.
  • Refusing bail in a contempt context can be justified not solely on the traditional grounds of flight risk or interference, but also to bring home the seriousness of the conduct and to create an opportunity for the contemnor to purge the apparent contempt.
  • An adjournment application to obtain supporting evidence will not automatically succeed where the witness had prior notice of being called and no explanation is given for the evidence not being available on the day.
  • The Supreme Court confirmed the fundamental importance of the obligation to answer questions when lawfully called as a witness, describing that obligation as going to the very heart of the proper administration of criminal justice.

Legislation and Cases Referenced

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

Cases:
- Coward v Stapleton (1953) 90 CLR 573 (High Court of Australia)