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Supreme Court 12 February 2016

In the matter of Reece George Barnes

[2016] NSWSC 133

Public order & justice offences
CRIMINAL LAW CONTEMPT OF COURT REFUSAL TO GIVE EVIDENCE WARNING SENTENCING RELEVANT FACTORS ON SENTENCING

Citation: In the matter of Reece George Barnes [2016] NSWSC 133
Court: Supreme Court of New South Wales
Date: 12 February 2016
Judge: Hall J

Background

The contemnor was called as a Crown witness in the murder trial of a co-accused arising from a fatal stabbing at Port Macquarie on 1 January 2014. He had himself already been acquitted in a separate trial concerning the same death. When called to give evidence at a pre-trial Basha inquiry on 13 October 2015, he refused to take an oath or make an affirmation, stating "Neither. I don't wish to be here at all."

The trial judge warned him clearly and at length about the consequences of refusal, adjourned proceedings so he could obtain legal advice, and arranged for a Legal Aid Senior Counsel to advise him. After receiving that advice, he maintained his refusal. He was charged orally with contempt of court under Part 55, rule 3(a) of the Supreme Court Rules.

On 18 December 2015, the contemnor appeared before Hall J and pleaded guilty to the contempt charge. The matter then proceeded to a sentencing hearing. The contemnor was separately serving a sentence imposed by the District Court for a drug supply offence, which had its own non-parole and parole periods.

  • Whether the refusal to take an oath or affirmation when required to give evidence constituted contempt of court.
  • What the appropriate sentence was, having regard to the objective gravity of the contempt and the contemnor's personal circumstances.
  • Whether the sentence for contempt should be structured to take account of the pre-existing District Court sentence, including whether a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was warranted to vary the standard ratio of non-parole to parole period.
  • How to apply the principles of accumulation and concurrency so that the contempt sentence did not undermine the structure of the District Court sentence.

Decision

Hall J convicted the contemnor of contempt. The contempt was found to be objectively serious: he refused to take the oath after two clear warnings from the bench, after an adjournment to reflect, and after obtaining independent legal advice from Senior Counsel arranged through Legal Aid. The refusal was deliberate and maintained throughout, and it occurred in the context of a murder trial where his evidence was potentially significant to the administration of justice.

In assessing the appropriate sentence, Hall J considered the contemnor's personal circumstances and criminal history, including that he was already serving a District Court sentence for drug supply. A key sentencing consideration was how to structure the contempt sentence so that it operated appropriately alongside the pre-existing sentence, preserving the 12-month parole period the District Court had allowed for in its own sentencing decision.

Hall J found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, accepting submissions from both the amicus and defence counsel that the need for appropriate accumulation and concurrency with the District Court sentence justified varying the standard non-parole to parole ratio. The contempt sentence was structured to commence on the expiry of the District Court non-parole period, with a non-parole period of 10 months followed by a 12-month parole period, mirroring the parole period set by the District Court.

The use of an amicus curiae to assist the court in the absence of a formal prosecutor was confirmed as accepted procedure in summary contempt proceedings of this kind, consistent with a line of earlier decisions.

Orders Made

  • The contemnor was convicted of contempt of court.
  • He was sentenced to imprisonment for 1 year and 10 months, commencing 28 April 2016 and expiring 27 February 2018.
  • The sentence comprised a non-parole period of 10 months (28 April 2016 to 27 February 2017) and a parole period of 12 months (expiring 27 February 2018).
  • The first date of eligibility for parole was 28 February 2017.

Key Takeaways

  • A wilful refusal to take the oath or make an affirmation, maintained after judicial warnings and independent legal advice, constitutes a serious contempt of court attracting a custodial sentence.
  • Under Part 55, rule 3(a) of the Supreme Court Rules, a trial judge may charge a contempt summarily and proceed without a formal prosecutor; counsel may be appointed as amicus curiae to adduce evidence and make submissions in that role.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may be found where a contemnor is already serving a sentence, and the need to achieve appropriate accumulation and concurrency with that pre-existing sentence justifies departing from the standard non-parole to parole ratio.
  • In structuring a contempt sentence alongside a pre-existing custodial sentence, the sentencing court will take care not to undermine the parole structure that the original sentencing judge built into the earlier sentence.
  • General deterrence was identified as a significant sentencing principle in contempt cases involving refusal to give evidence, reflecting the court's interest in protecting the administration of criminal justice.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Supreme Court Rules (NSW), Pt 55, r 3(a)

Cases:
- European Asian Bank v Wentworth (1986) 5 NSWLR 445
- Honourable Acting Justice Ireland v Russell [2001] NSWSC 468
- In the matter of Bauskis [2006] NSWSC 908
- In the matter of David James Ezold [2002] NSWSC 574
- In The Matter of Steven Smith (No 2) [2015] NSWSC 1141
- Principal Registrar of Supreme Court (NSW) v Jando (2001) 53 NSWLR 257
- R v Aubusafiah (1991) 24 NSWLR 531
- R v Razzak [2006] NSWSC 1366
- Re Steven Smith [2015] NSWSC 832
- Registrar of Court of Appeal v Gilbey (NSW Court of Appeal, 20 August 1991, unreported)
- Registrar of Court of Appeal v Raad (NSW Court of Appeal, 9 June 1992, unreported)
- Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183
- Smith v The Queen (1991) 25 NSWLR 1
- Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177
- Wood v Galea (1997) 92 A Crim R 287
- Wood v Staunton (No 5) (1996) 86 A Crim R 183