Citation: New South Wales Police Force v L Davis (No 2) [2026] NSWSC 852
Court: Supreme Court of New South Wales
Date: 16 July 2026
Judge: Campbell J
Background
This decision arose in the context of a judge-alone trial for murder being heard at Port Macquarie. A witness, referred to by her role throughout these proceedings, had been served with a subpoena requiring her to attend and give evidence. She failed to comply with the subpoena, was arrested, and her bail was refused on two occasions. She was subsequently brought before the court and gave evidence.
During her evidence, the trial judge formed a strong provisional view that the witness was constructively failing to answer questions, which is itself capable of constituting contempt in the face of the court. The question then arose whether the judge should take summary action in respect of the alleged contempt, or refer the matter to the Prothonotary for further consideration.
The decision is delivered ex tempore (meaning the judgment was given verbally at the time, without prior written preparation) and concerns both the court's approach to the contempt question and a release application by the witness's counsel following the conclusion of her evidence.
Legal Issues
- Whether the trial judge should initiate summary contempt proceedings against the witness, or refer the matter to the Prothonotary under Pt 55 r 11 of the Supreme Court Rules 1970 (NSW)
- Whether the unique position of a judge-alone criminal trial intensified the conflicts inherent in a judge dealing summarily with an alleged contemnor
- Whether the witness should be discharged and released from her bail acknowledgment following the conclusion of her evidence
Decision
Issue 1: Whether to pursue summary contempt proceedings
Campbell J declined to take any immediate action in relation to the potential contempt. His Honour accepted that the failure to comply with a subpoena in the context of a serious criminal charge is capable of constituting criminal contempt, and that the court has ample power to deal with such conduct under the Supreme Court Rules. However, no charge had yet been formulated, and the witness had not been given an opportunity to respond. Critically, any contempt charge would need to be proved beyond reasonable doubt, and the witness would retain the right to silence.
His Honour drew on the well-known caution expressed by Kirby P in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, which identified the acute difficulty arising when a judge simultaneously occupies the roles of victim, witness, prosecutor, and adjudicator in a contempt matter. The Supreme Court also applied the principle from Keely v Brookings (1979) 143 CLR 162, that summary contempt procedure should rarely be used except in urgent circumstances where the trial's integrity cannot otherwise be preserved.
Issue 2: The aggravated conflict in a judge-alone criminal trial
Campbell J held that the conflict identified in the authorities was especially pronounced in this case. Because his Honour was the tribunal of fact as well as judge of the law, making any finding or referral about the witness's credibility or conduct before the trial concluded would risk pre-judging matters he would later need to assess in delivering a verdict. His Honour compared his position to that of a juror, who is required to maintain an open mind until the very end of the trial.
His Honour also noted that the witness's conduct might, in due course, raise questions beyond contempt, potentially extending to perjury. In that event, the appropriate course would be a referral to the Director of Public Prosecutions after the verdict, not a summary proceeding initiated during the trial itself.
Issue 3: Release of the witness
Campbell J accepted the submission by counsel for the witness and ordered her discharge. The court found that she had given evidence and faced no current charge justifying further detention. His Honour noted the Bail Act 2013 (NSW), applied through s 312 of the Criminal Procedure Act 1986 (NSW), ceased to operate upon the conclusion of those deemed criminal proceedings. A release warrant was directed to issue, countermanding the committal warrant under which she had been held.
Orders Made
- The witness was discharged from any further requirement to attend court and give evidence in the proceedings
- Her bail acknowledgment was discharged by force of s 6 of the Bail Act 2013 (NSW), the deemed criminal proceedings against her having concluded
- The registry (either at Port Macquarie Local Court or the Supreme Court registry in Sydney) was directed to issue a release warrant forthwith, countermanding the committal warrant under which the witness was being held
Key Takeaways
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A trial judge presiding alone in a serious criminal trial faces a particularly acute version of the conflict identified in European Asian Bank v Wentworth, where the same judge must act as victim, witness, prosecutor, and adjudicator in any summary contempt proceeding involving a trial witness.
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The principle from Keely v Brookings, that summary contempt procedure should be reserved for urgent situations where the trial's integrity cannot otherwise be preserved, applies with even greater force in a judge-alone criminal trial where the judge remains the unfinalised tribunal of fact.
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Taking any step to refer a witness's conduct or evidence to an authority for punitive consideration before the verdict is delivered risks a form of pre-judgment incompatible with the trial judge's duty to keep an open mind across the entire proceeding.
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Where potential contempt by a witness may also raise questions of perjury, Campbell J indicated the appropriate post-verdict mechanism would be referral to the Director of Public Prosecutions rather than summary action during the trial itself.
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Once a witness has given evidence and faces no current criminal charge, no basis remains under the Bail Act 2013 (NSW) to continue detaining that person, and a release warrant should issue.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Evidence Act 1995 (NSW), s 194
- Supreme Court Rules 1970 (NSW)
Cases
- European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
- Keely v Brookings (1979) 143 CLR 162
- Killen v Lane [1983] 1 NSWLR 171