Citation: [2024] NSWSC 1086
Court: Supreme Court of New South Wales
Date: 18 September 2024
Judge(s): Hamill J
Background
This judgment arose during a murder trial of five accused men (four being tried together, with a fifth to face trial separately). The prosecution called a witness, Mr Majak (also known as Mr Deng), who was himself in custody on unrelated serious charges. Mr Majak was said to be a friend of the deceased victim, who died from a stab wound during a melee involving two groups of young men in Blacktown.
Over four separate court days, Mr Majak refused to cooperate with the court process. On the first day, he refused to leave the cells to come to the courtroom. On the second day, appearing by audio visual link, he refused to take an oath or affirmation, told the judge to "just charge me with contempt," and walked out of the AVL suite within three minutes. On the third and fourth days during the trial proper, he again refused to leave the cells, and when finally brought to court, he refused to take an oath or affirmation before the jury.
The question for the Court was how Mr Majak's contempt should be dealt with: summarily by the trial judge, or by referral to the Prothonotary for the institution of separate contempt proceedings.
Legal Issues
- Whether Mr Majak's conduct in refusing to take an oath or affirmation, refusing to come to court, and walking out of the AVL suite constituted contempt of court.
- Whether Mr Majak should be dealt with summarily for contempt by the trial judge or referred to the Prothonotary for separate proceedings under Part 55, Division 3 of the Supreme Court Rules 1970 (NSW).
- Whether Mr Majak should be afforded an opportunity to be heard before a decision was made about the contempt process.
- What role Mr Majak's expressed preference (to "cop the contempt" rather than give evidence) should play in selecting the appropriate procedure.
Decision
Hamill J found that Mr Majak's refusal to take an oath or affirmation and his refusal to attend court clearly constituted contempt in the face of the court. However, his Honour declined to deal with the contempt summarily, instead referring the matter to the Prothonotary to consider instituting contempt proceedings.
His Honour applied the reasoning from R v Bilal Razzak and the companion judgment in R v Diallo & Ors (No 10), noting that a referral to the Prothonotary was the more appropriate course. In particular, Hamill J observed that the summary contempt power should be exercised sparingly, and that a referral better protects the contemnor's rights while still vindicating the authority of the court.
The Court gave weight to Mr Majak's clearly and repeatedly stated preference to face a contempt charge rather than give evidence. His Honour noted this was a factor, though not a determinative one, in choosing the referral pathway. Mr Majak had received legal advice about the consequences of contempt from an independent solicitor (Mr Fung) and had made his position clear with full knowledge of the potential penal consequences.
Hamill J also addressed the procedural question of whether to afford Mr Majak a further opportunity to be heard before making the referral. Given that Mr Majak had been advised by a solicitor, had repeatedly expressed his preference, and had been given multiple opportunities to reconsider his position across four court days, the Court was satisfied that no further hearing was required before making the referral.
Orders Made
- Mr Majak's conduct was referred to the Prothonotary of the Supreme Court for consideration of the institution of contempt proceedings under Part 55, Division 3 of the Supreme Court Rules 1970 (NSW).
- The Court declined to deal with the contempt summarily.
Key Takeaways
- The Supreme Court indicated a general preference for referring contempt matters to the Prothonotary rather than exercising the summary contempt power, particularly where immediacy was not required, treating the summary power as reserved for situations where it was urgently necessary to vindicate the court's authority.
- Practical tensions arose between compelling attendance of a witness in custody through Corrective Services officers and the safety risks that physical extraction from cells could create, with the Court exploring audio-visual link (AVL) as an alternative before resorting to measures involving physical compulsion.
- A witness's blanket refusal to give evidence was confirmed to go beyond the privilege against self-incrimination protected by section 128 certificates; even after receiving section 128 advice, a witness who refused to be sworn or affirmed faced a separate contempt exposure that the certificate did not cover.
- In choosing the referral pathway, Hamill J treated the contemnor's repeated and informed preference to face contempt proceedings, rather than give evidence, as a relevant factor, while making clear that such a preference was not determinative and that the Court retained full discretion over the process.
- Independent legal advice provided to the witness, including advice about the potential for imprisonment, was relied upon when assessing whether the contemnor understood the consequences of his refusal, with the judgment recording the nature and extent of that advice as a relevant consideration.
Legislation and Cases Referenced
Legislation:
- Supreme Court Rules 1970 (NSW), Pt 55, Div 3, rr 1, 11(1)
Cases:
- R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085
- R v Bilal Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132
- R v Basha (1989) 39 A Crim R 337
- In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141
- Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
- Registrar of the Court of Appeal v Gilby [1991] NSWCA 235