Citation: R v Abdallah; In the matter of John Leger [2014] NSWSC 320
Court: Supreme Court of New South Wales
Date: 18 March 2014
Judge: Campbell J
Background
The sentencing arose from events during the murder trial of R v Abdallah. The accused in that trial was alleged to have shot and killed Neal Todorovski in Sans Souci on 4 January 2012 and to have then chased and fired at John Leger, an associate of the deceased. Leger was present at the scene and was subpoenaed as a Crown witness.
When called to give evidence on 17 February 2014 during a Basha inquiry (a pre-trial hearing to determine what evidence a witness can give), Leger repeatedly said "I don't recall" or gave no verbal response to questions about events he had personally witnessed. After being directly asked by Campbell J whether he was refusing to answer, Leger confirmed that he was.
Leger was warned of the court's power to impose a fine, imprisonment, or both, was given a short adjournment to consult counsel, and was later given a further opportunity on 28 February 2014 to reconsider his position. He declined on both occasions. A charge of contempt in the face of the court was laid on 17 February 2014, and Leger was remanded in custody until the conclusion of the trial. The jury ultimately convicted Abdallah of murder but acquitted him of the attempted murder of Leger. Leger then pleaded guilty to the contempt charge.
Legal Issues
- What sentence is appropriate for a witness who wilfully refuses to answer questions in a criminal trial after being sworn, warned of consequences, and given multiple opportunities to comply?
- What weight should be given to mitigating factors, including an early plea of guilty?
- Is a non-custodial penalty a viable alternative in the circumstances?
Decision
Campbell J held that contempt in the face of the court is a very serious offence. Relying on the analysis in Principal Registrar v Thanh Vu Tran and R v Razzak, and the principles articulated by Kirby P (as he then was) in Registrar v Raad, his Honour confirmed that a refusal to answer relevant and admissible questions strikes at the administration of justice and undermines the rule of law. A competent witness called in criminal proceedings bears a civic obligation to give evidence when lawfully required to do so.
His Honour identified general deterrence and public denunciation as the most significant sentencing considerations. Leger had witnessed a murder, refused to assist police at any stage, refused to give evidence at the committal, and maintained his refusal even after direct judicial warnings and multiple opportunities to change course during the trial. The court found that no sentence other than full-time imprisonment was appropriate, rejecting the submission that a non-custodial option was open on these facts.
A 25 percent discount was applied to reflect the early guilty plea, consistent with the maximum available discount recognised in the relevant authorities. The court applied the approach of intuitive synthesis described by McHugh JA in Markarian v R, balancing all relevant factors before settling on a fixed term.
Orders Made
- Leger convicted of contempt in the face of the court committed on 17 February 2014 in the trial of R v Abdallah.
- Sentenced to a fixed term of imprisonment of six months, commencing 17 February 2014 and expiring 16 August 2014.
- The record amended to retitle the proceedings R v Abdallah; In the matter of John Leger, with any reference to the Prothonotary as prosecutor struck out.
Key Takeaways
- Wilful refusal to answer questions in a criminal trial, after being sworn and warned, constitutes contempt in the face of the court and is treated by the Supreme Court as a serious offence warranting custodial punishment.
- General deterrence and denunciation carry substantial weight in sentencing a witness who refuses to give evidence, because the effectiveness of criminal law enforcement depends on witnesses fulfilling their civic obligation to testify.
- A 25 percent discount on sentence remained available for an early guilty plea to a contempt charge, consistent with the approach applied to other criminal offences.
- Where a contemptuous witness is given repeated opportunities to purge the contempt and declines each time, that persistent refusal is a significant aggravating consideration at sentencing.
- The court confirmed that the approach in Markarian v R (intuitive synthesis of all relevant factors) applies to sentencing for contempt in the face of the court, rather than a purely mathematical exercise.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
Cases
- Markarian v R (2005) 228 CLR 357
- Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183
- R v Razzak [2006] NSWSC 1366; 166 A Crim R 132
- Registrar of the Court of Appeal v Raad (unreported, NSWCA No 40585/1991, 9 June 1992)
- Smith v R (1991) 25 NSWLR 1
- Wood v Staunton (No 5) (1996) 86 A Crim R 183