Citation: [2024] NSWSC 1085
Court: Supreme Court of New South Wales
Date: 18 September 2024
Judge(s): Hamill J
Background
Five accused men are on trial for the murder of Darcy Moore and the attempted murder of two others, arising from a stabbing incident on 1 September 2021 in Blacktown. The prosecution alleges the accused were members of a rival street gang who attended the deceased's home intending violence. Part of the defence case is that the accused fled the scene while being chased by an armed group, raising the issue of self-defence.
A witness referred to as "KL" was present at the deceased's home that night and was part of the group that chased the accused. KL is separately charged with an unrelated murder at the Royal Easter Show in April 2022. Although KL pleaded guilty to that charge in the Children's Court, he may seek to traverse (withdraw) his plea and rely on a partial defence of substantial impairment, arguing trauma from witnessing the death of Darcy Moore contributed to his later actions.
KL objected to giving evidence on self-incrimination grounds. Hamill J upheld the objection as having reasonable grounds but directed KL to answer under s 128 of the Evidence Act 1995, granting him the broadest possible certificate protecting his answers from being used against him. Despite that protection, KL repeatedly refused to answer questions at both a pre-trial hearing on 8 July 2024 and during the trial before the jury on 19 August 2024, responding "no comment" or "I respectfully pass" to numerous questions and direct judicial orders.
Legal Issues
- Whether KL's repeated refusal to answer questions, after being directed to do so by the trial judge and granted the protection of a s 128 certificate, constituted contempt in the face of the court.
- What procedure should be adopted for dealing with the apparent contempt: summary disposal by the trial judge, or referral to another judge via the Prothonotary.
- Whether KL should be afforded an opportunity to be heard before any referral for contempt proceedings.
Decision
Hamill J found there was prima facie evidence that KL's conduct constituted contempt in the face of the court. The witness repeatedly refused to answer questions across two separate hearing dates, persisting in his refusal even after multiple express judicial directions and even though a certificate under s 128 of the Evidence Act meant his answers could not be used against him in any other proceedings (except for any falsity in the evidence).
His Honour acknowledged the unusual circumstances, including that KL was himself facing a murder charge and that his evidence about the trauma of witnessing the deceased's death was potentially relevant to a partial defence in his own proceedings. Despite the breadth of the certificate and non-publication orders designed to protect KL, the witness maintained his refusal.
Hamill J considered the alternative procedures for dealing with contempt. He expressed the preliminary view that it was preferable not to deal with the matter summarily (that is, not to determine the contempt himself during the ongoing trial). Instead, he considered it more appropriate that a different judge handle any contempt proceedings, given the trial judge's direct involvement in the events giving rise to the alleged contempt. This approach aligns with authorities favouring referral to another judge where practical.
Before taking further action, Hamill J directed that KL be given the opportunity, through his lawyers or otherwise, to make submissions as to why the matter should not be referred to the Prothonotary for the initiation of contempt proceedings. This ensured procedural fairness for the witness, consistent with established principles.
Orders Made
- Hamill J expressed a preliminary view that KL's conduct constituted contempt in the face of the court.
- KL was afforded the opportunity to make submissions (through his lawyers or otherwise) as to why the matter should not be referred to the Prothonotary for the initiation of contempt proceedings.
- The trial continued in the meantime.
Key Takeaways
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A s 128 certificate, even one drafted in the broadest terms and accompanied by non-publication orders, does not entitle a witness to refuse to answer questions. Once a court has directed a witness to answer with the protection of such a certificate, continued refusal can constitute contempt in the face of the court.
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The Supreme Court's reasoning illustrated the limits of advocacy on behalf of witnesses with overlapping criminal proceedings. Although KL's Public Defender argued persuasively that compelling the evidence was not in the interests of justice, once that argument was rejected and a direction was made, continued refusal after the judicial direction carried legal consequences.
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In referring the contempt rather than exercising the summary power, Hamill J confirmed the Court's preference, where practical, for having contempt in the face of the court determined by a different judge. This approach was particularly appropriate where the trial judge had been directly involved in the exchanges giving rise to the alleged contempt, and the Court applied the procedural pathways available under the Supreme Court Rules, Pt 55, Div 3.
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Where a key prosecution witness refuses to testify despite compulsion, the contempt referral process runs in parallel with the ongoing trial. The trial does not pause, carrying practical implications for how both prosecution and defence manage the remainder of the case.
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Procedural fairness was maintained even in a case of apparent contempt. Hamill J afforded KL the opportunity to be heard before any referral was made, consistent with the relevant authorities on the exercise of the contempt jurisdiction.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 128(3), 128(4), 128(5)
- Supreme Court Act 1970 (NSW), s 119(2)
- Supreme Court Rules 1970 (NSW), Pt 55, Div 3, rr 3, 11(1), 11(6)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- R v Diallo & Ors (No 7) [2024] NSWSC 978
- Keeley v Brooking (1979) 143 CLR 162
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
- Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
- R v Qaumi & Ors (No 62) [2016] NSWSC 1215
- R v WE (No.15) [2020] NSWSC 332
- Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277
- Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183
- European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
- Jane Doe 1 v Dowling [2017] NSWSC 57
- The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208