Citation: R v Diallo & Ors (No 16) [2024] NSWSC 1221
Court: Supreme Court of New South Wales
Date: 30 September 2024
Judge: Hamill J
Background
This judgment is the latest in a series of related decisions arising from a murder trial heard in the Supreme Court at Parramatta. In an earlier judgment (R v Diallo & Ors (No 10) [2024] NSWSC 1085), Hamill J provisionally concluded that a juvenile witness, referred to as KL, had committed contempt in the face of the court by refusing to answer questions on two separate occasions: once during a pre-trial hearing on 8 July 2024 and again during the trial itself on 19 August 2024.
KL was born in late September 2007, making him approximately 13 years and 11 months old at the time of the events about which he was called to give evidence. At the time of these contempt proceedings, he was 16 years old, in custody, and had been refused bail on a separate murder charge. He was also expected to be called as a witness in a forthcoming related trial involving another accused (YA), listed to commence on 4 November 2024.
Before taking the step of referring the matter to the Prothonotary (the court's registrar, who would then arrange prosecution through a separate procedure), Hamill J gave KL the opportunity to be heard. KL appeared by audiovisual link, represented by counsel.
Legal Issues
- Whether contempt proceedings should be instituted at all, given KL's youth and personal circumstances.
- If proceedings were to be instituted, whether the matter should be referred to the Prothonotary under Division 3 of Part 55 of the Supreme Court Rules 1970 (NSW) for formal prosecution, or dealt with summarily by the trial judge under Division 2.
Decision
On whether to proceed with contempt at all, Hamill J rejected the submission that no action should be taken. Counsel for KL argued that factors including his young age, the diminished weight of general deterrence and denunciation when dealing with a juvenile, and the pressure on a witness in custody to remain silent were reasons to exercise discretion against prosecution. The court acknowledged these as relevant considerations but concluded that they were more properly matters of mitigation of penalty rather than reasons to abandon proceedings entirely. The public interest in compellable witnesses giving evidence in serious criminal trials outweighed those factors, particularly where a witness had disobeyed clear and repeated directions to answer questions.
On summary disposition versus referral, both KL's counsel and the Crown Prosecutor joined in submitting that the matter should be dealt with summarily by Hamill J rather than referred to the Prothonotary. While the court noted that policy considerations generally favour the referral process, it accepted the joint position for two reasons. First, KL had the benefit of experienced counsel and had effectively waived any concern about the trial judge acting as both the apparent "victim" of the contempt (in the sense of representing the administration of justice) and the adjudicator. Second, the proximity of YA's trial and the likelihood that KL would again be called as a witness made expeditious resolution desirable. The court observed that specific deterrence might be better served by resolving the contempt proceedings before that trial date.
Hamill J therefore ordered that two charges of contempt be disposed of summarily under Division 2 of Part 55 of the Supreme Court Rules 1970 (NSW), with the matter to be expedited and listed ahead of 4 November 2024.
Orders Made
- Two charges of contempt (arising from conduct on 8 July 2024 and 19 August 2024) to be disposed of summarily pursuant to Part 55, Division 2 of the Supreme Court Rules 1970 (NSW).
- Disposition of the matter to be expedited.
- The judge's associate to liaise with KL's counsel and solicitors to determine a suitable date for the expedited hearing.
- KL's legal representatives to advise the associate, within seven days (by 5:00pm on Monday 7 October 2024), of the plea KL proposed to enter when formally informed of the charges.
Key Takeaways
- The Supreme Court confirmed that the public interest in compellable witnesses giving evidence in serious criminal trials is a weighty consideration that can outweigh personal factors, including youth and custodial pressure to remain silent, when determining whether to institute contempt proceedings.
- A juvenile's age and the reduced weight of general deterrence and denunciation in that context are relevant to the exercise of discretion in contempt proceedings, but those factors are more properly matters of mitigation going to penalty than reasons to decline prosecution altogether.
- Where a contemnor, with the benefit of experienced counsel, expressly renounces any objection to the trial judge acting as adjudicator and sentencer, the court may treat that as a sufficient basis to depart from the general policy favouring referral to the Prothonotary and instead proceed summarily.
- Under Part 55 of the Supreme Court Rules 1970 (NSW), the court retains a discretion to choose between summary disposition (Division 2) and referral to the Prothonotary (Division 3); that discretion can be informed by practical considerations such as likely delay and the specific deterrence effect of timely resolution.
- Contempt proceedings for a juvenile witness appear to be exceptionally rare in New South Wales, with counsel's research revealing only one comparable case from 1985.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 25
- Supreme Court Rules 1970 (NSW), Pt 55, Divs 2 and 3
Cases
- Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
- Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
- R v Diallo & Ors (No 7) [2024] NSWSC 978
- R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085
- R v Taber and Styman; Re Shannon v Styman [2005] NSWSC 1329
- Registrar of the Court of Appeal v Raad (Court of Appeal (NSW), 9 June 1992, unreported)