Citation: R v Coskun (No 4) [2022] NSWSC 696
Court: Supreme Court of NSW
Date: 16 March 2022
Judge(s): R A Hulme J
Background
A witness named Sargon Odisho was called to give evidence in the murder trial of the accused, who was charged with killing John Odisho at Five Dock on 2 April 2019. The Crown alleged the accused and another man had entered the home to rob it of drugs and money. Sargon Odisho had been present at the premises on the night of the shooting and had spoken to police immediately after the incident.
Sargon Odisho had previously pleaded guilty to separate drug and firearms offences arising from the same events and was serving a sentence in the District Court at the time of the trial. He had been called at a pre-trial Basha hearing in February 2022, where he answered some questions but repeatedly declined others, citing discomfort and indicating he had received legal advice beforehand.
When called before the jury on 14 and 15 March 2022, the witness progressively escalated his refusals. By the second day, he adopted what the court described as an almost complete blanket refusal to answer the Crown Prosecutor's questions, including some he had been prepared to answer the day before.
Legal Issues
- Whether the witness's persistent refusal to answer questions in the course of a criminal trial amounted to contempt in the face of the court.
- Whether the matter should be dealt with by the trial judge directly or referred for prosecution before another judge pursuant to the Supreme Court Rules 1970 (NSW).
Decision
Issue 1: Contempt in the face of the court
Hulme J found that the witness's conduct went well beyond a principled or consistent refusal grounded in any identifiable concern. The witness refused to answer questions that were entirely innocuous, including whether a police officer had taken a statement from him and whether he had given evidence the previous day (at [7], [9]). His approach was also internally inconsistent: he answered some questions on one day and refused the same or similar questions the next (at [9]-[10]).
The court had warned the witness of the serious consequences, stood the matter down overnight, and offered him the opportunity to seek legal advice and reconsider. The witness declined, stating immediately that he would not change his mind (at [11]). The following morning he confirmed his position had not changed, disclosing that he had resolved three weeks earlier not to give evidence and remained firm in that view (at [12]).
Issue 2: Referral rather than summary disposal
Hulme J acknowledged that the trial judge has power to deal with a contempt of this kind personally, but accepted that unless urgency requires immediate action, the preferable course is referral to another judge for prosecution (at [15]). Accordingly, the court confirmed under Pt 55 r 11(1) of the Supreme Court Rules 1970 (NSW) that it appeared the witness was guilty of contempt, and directed the Registrar to commence proceedings (at [16]-[17]).
Orders Made
- The court confirmed, pursuant to Pt 55 r 11(1) of the Supreme Court Rules 1970 (NSW), that the witness appears to be guilty of contempt.
- The Registrar was directed to commence contempt proceedings, either on the charge proposed by Hulme J or as advised by the Crown Solicitor or instructed counsel.
Key Takeaways
- A witness who adopts a near-total refusal to answer questions in a criminal trial, including innocuous and non-incriminating questions, may be found to appear guilty of contempt in the face of the court (at [7], [9], [16]).
- Inconsistency in the refusal, such as answering certain questions on one day and refusing identical questions the next, is a relevant consideration in assessing whether the conduct interferes with the administration of justice (at [9]-[10]).
- Giving a witness an overnight opportunity to reconsider, obtain legal advice, and respond to a proposed contempt charge is consistent with procedural fairness before referral proceedings are initiated (at [11]-[14]).
- Under Pt 55 r 11(1) of the Supreme Court Rules 1970 (NSW), where a trial judge forms the view that a witness appears guilty of contempt, the preferred course absent urgency is referral to another judge rather than summary disposal by the trial judge (at [15]-[17]).
- A witness's pre-formed and unwavering decision not to give evidence, communicated to the court, reinforces the conclusion that the refusal was deliberate and not circumstantial (at [12]).
Legislation and Cases Referenced
Legislation
- Supreme Court Rules 1970 (NSW) , Pt 55 r 11(1)
Cases
- Not stated