Citation: R v Abdallah; in the matter of Matthew Edward Lewis [2014] NSWSC 319
Court: Supreme Court of New South Wales
Date: 18 March 2014
Judge: Campbell J
Background
The primary proceedings involved the murder trial of an accused charged with shooting a man dead in a residential street in Sans Souci in January 2012. The witness in these contempt proceedings was a friend of the deceased who was present at the scene when the shooting occurred.
The witness was called during a pre-trial inquiry (known as a "Basha inquiry") on 17 February 2014 to determine what evidence he could give if called at trial. Having refused to provide any statement to police in the two years following the shooting, he appeared before Campbell J and responded to almost every substantive question about the incident with "I don't remember," attributing his lack of recollection to having taken Xanax. Campbell J warned him that refusing to answer questions constitutes contempt of court, including that imprisonment was a possible consequence. After a short adjournment to consult with his counsel, the witness returned and maintained the same position.
Campbell J charged the witness with contempt in the face of the court on 17 February 2014 and remanded him in custody. The witness pleaded guilty on the day the murder jury returned its verdict, 17 March 2014, and the matter proceeded to sentence on 18 March 2014.
Legal Issues
- Whether the witness's conduct on 17 February 2014 constituted a wilful refusal to answer questions, amounting to contempt in the face of the court.
- What sentence was appropriate, having regard to the objective seriousness of the offence and the witness's personal circumstances, including his early guilty plea, lack of criminal history, and financial position.
- Whether a non-custodial penalty could serve as a sufficient denunciation of the contempt.
Decision
Campbell J was satisfied that the witness's responses were not genuine failures of memory but a deliberate refusal to give evidence. The judgment cited the High Court's decision in Coward v Stapleton (1953) 90 CLR 573, which established that a refusal to answer may be proved by answers so plainly absurd that they convey an intention not to give any real answer. The guilty plea confirmed that characterisation.
The court treated the contempt as objectively serious, consistent with the approach described in the companion judgment delivered the same day in relation to a co-witness (John Leger) who had also refused to give evidence in the same trial. Campbell J noted that this category of contempt is almost always regarded as serious by the Supreme Court.
Several factors weighed in the witness's favour: he was 25 years old with no prior criminal record, had pleaded guilty at the earliest available opportunity (as soon as the jury returned its verdict), and had limited financial means rendering a fine impractical. A 25 per cent discount was applied to reflect the early guilty plea, consistent with applicable sentencing principles.
Notwithstanding those mitigating factors, Campbell J concluded that only a term of full-time imprisonment would adequately denunciate the defiance of proper legal process. The sentence imposed was significantly shorter than that given to the co-witness, reflecting the relevant differences between the two cases, in particular the early guilty plea.
Orders Made
- The witness was convicted of contempt in the face of the court committed on 17 February 2014 in the trial of R v Abdallah.
- A fixed term of imprisonment of three months was imposed, commencing 17 February 2014 and expiring 16 May 2014.
- The record was amended to designate the proceedings as R v Abdallah; in the matter of Matthew Edward Lewis, with references to the Prothonotary as prosecutor struck out.
Key Takeaways
- Answers that are so plainly implausible as to convey a deliberate refusal to engage can themselves constitute proof of wilful refusal to answer, under the principle affirmed in Coward v Stapleton (1953) 90 CLR 573.
- Contempt in the face of the court by way of refusal to answer questions is treated by the Supreme Court of New South Wales as an objectively serious offence in almost all cases, and full-time imprisonment is regarded as the appropriate sentencing response.
- A guilty plea entered at the first reasonably available opportunity attracted the maximum available discount of 25 per cent on the sentence that would otherwise have been imposed.
- Where two witnesses are sentenced for contempt arising from the same trial, the principle of equal justice does not mandate identical sentences; relevant differences in individual circumstances, including the timing and presence of a guilty plea, justify material differences in outcome.
- The absence of a criminal record and impecuniosity (making a fine impractical) are relevant mitigating considerations, but neither displaces the need for a custodial term where the court's processes have been wilfully defied.
Legislation and Cases Referenced
Cases:
- Coward v Stapleton (1953) 90 CLR 573
- Green v R; Quinn v R (2011) 244 CLR 462
- Hili v R; Jones v R (2010) 242 CLR 520
- Wood v Staunton (No 5) (1996) 86 A Crim R 183
- R v Abdallah (No 2) [2014] NSWSC 111
- R v Razzak [2006] NSWSC 1366, 166 A Crim R 132
Legislation: No specific legislation was cited in the judgment.