Allen v R
[2013] VSCA 44
•6 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0218
| ANTHONY MARK ALLEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 January 2013 |
| DATE OF JUDGMENT | 6 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 44 |
| JUDGMENT APPEALED FROM | The Queen v Allen (Unreported, County Court of Victoria, Judge Chettle, 28 August 2012) |
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CRIMINAL LAW – Appeal - Sentence - Contempt - Refusal to give evidence - Sentenced to 8 months' imprisonment - Whether manifestly excessive - Significance of applicant’s evidence for trial - Whether prosecution case ‘substantially weakened’ - Finding open and relevant - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Contempt - Refusal to give evidence - Whether appropriate for judge to proceed summarily - County Court Civil Procedure Rules 2008 (Vic) O 75.
PRACTICE AND PROCEDURE – Appeal - Contempt - Appeal against sentence for refusal to give evidence - Crown as proper respondent - Re Perkins; Mesto v Galpin [1998] 4 VR 505; Fraser v The Queen [1984] 3 NSWLR 212 applied.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Cameron Marshall |
| For the Crown | Ms F K Forsyth | Victorian Government Solicitors Office |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal.
WEINBERG JA:
I agree, for the reasons given by Priest JA, that leave to appeal should be refused.
PRIEST JA:
Introduction
In my opinion, for reasons that follow, this application for leave to appeal against a sentence of eight months’ imprisonment for contempt, imposed on the applicant by a judge of the County Court on 28 August 2012, should be refused.
Course of the proceeding
Before going into the merits of the application for leave, it is necessary to outline the course of the proceedings.
On 27 August 2012, a judge of the County Court charged the applicant with contempt committed in the face of the court; and the following day, 28 August 2012, the judge sentenced him to be imprisoned for eight (8) months.
By a Notice of Application for Leave to Appeal Against Sentence (‘the Notice’) and an accompanying Written Case dated 2 November 2012, the applicant sought leave to appeal against the sentence. There were four grounds of appeal, which I will discuss in further detail below. The Notice nominated the ‘County Court of Victoria’ as the respondent. I will later return to consider whether it was appropriate
that it do so.
An application for bail was refused by a judge of this Court on 20 November 2012. No question arose during the course of that application as to whether the proper respondent had been joined.
The application for leave to appeal came before the Court on 31 January 2013. Initially, the Court granted the Attorney General leave to appear amicus curiae, there being no other contradictor.[1] However, the Court raised with the parties whether the County Court of Victoria was the proper respondent. Notwithstanding that there was doubt as to that issue, the Court entertained oral submissions as to the merits of the application touching sentence from both counsel for the applicant and counsel for the Attorney General, and gave leave to file further written submissions (including submissions directed to the issue of what person or body should be named as respondent).
[1]A ‘Written Case On Behalf Of The Attorney-General As Amicus Curiae’, dated 21 December 2012, had been filed in apparent anticipation of leave being granted.
Following the receipt of written submissions, in which the applicant submitted that the Queen should be the respondent to the application, and acceptance by counsel for the Attorney General that the Queen should indeed be substituted as respondent in place of the County Court of Victoria, on 7 February 2013 the Court made orders that, ‘The Queen be substituted as respondent to this application’, and that, ‘The Written Case filed on behalf of the Attorney General as amicus curiae be treated as having been filed on behalf of the Queen’. Procedural orders concerning the filing of further submissions as to the merits were also made.
The proper respondent
Despite the concurrence of the parties that the Queen properly should be named as respondent, it is necessary that the Court provide reasons for making the order for substitution that it did.
In Re Perkins; Mesto v Galpin,[2] during the course of a civil proceeding, a judge of the Supreme Court signed an arrest warrant for contempt in the face of the court which was directed to a barrister then appearing before him. An appeal against certain orders arising from the contempt came to this Court, the Notice of Appeal naming the judge as one of the respondents.[3] Brooking JA (with whom Phillip and Batt JJA agreed) said of the Notice of Appeal:
It was inappropriate to make the judge a respondent. It is not appropriate, desirable or necessary to name the judge as respondent to an appeal against an order made in contempt proceedings dealt with summarily: the proper respondent is the Queen, since Her Majesty has the ultimate responsibility for the protection of the courts, the due administration of justice and the enforcement of the criminal law: Fraser v R [1984] 3 NSWLR 212 at 218-19.
[2]Re Perkins; Mesto v Galpin [1998] 4 VR 505 (‘Perkins’).
[3]The other respondent was a party to the civil proceeding being heard by the judge.
Fraser v R[4] concerned a case of contempt, allegedly in the face of the court, in which a judge of the Supreme Court of NSW was named as a respondent to appeals against convictions that he had entered, and orders for imprisonment that he had made. Kirby P and McHugh JA made it clear that in appeals against summary adjudgment of contempt the proper respondent was the Queen. They said:[5]
[4]Fraser v R [1984] 3 NSWLR 212.
[5]Ibid 218–9.
The proper respondent:
At the hearing of the appeals, which were expedited by the court, an initial question arose as to whether the proper respondent should be the trial judge, the Attorney-General, the Registrar of the Court of Appeal or the Crown.
…
When a matter of contempt proceeds under the Supreme Court Rules, Pt 55, Div 3, it is now clear that the appropriate party is the Registrar of the Court of Appeal: cf Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682. The position in respect of an appeal for contempt in the face or hearing of the court is not so clear. It seems undesirable, as a matter of principle, that judges of the Supreme Court should be named as party respondents in proceedings in their own court, arising out of their conduct as a judge of the court. … The reservation about naming a judge as a respondent is not only one of delicacy. The judge is not, and ought not to be or to be seen, to be, personally involved. Accordingly it is unthinkable that he would have any adverse interest to advance on the appeal. To that extent, naming him as a party is irrelevant. Secondly, it appears undesirable in principle that he should be perceived as a party in proceedings in his own court, even if in the Court of Appeal of that court. That court, like the judge, is simply administering the law. Even in summary proceedings for contempt, there is and should be, insufficient personal interest on the part of the judge to warrant his admission as a party on appeal in the Court of Appeal which is part of his own court.
Counsel suggested that the Attorney-General, as the person in whom the Crown's power of indictment is vested for the State, should be the respondent. This suggestion was made on the basis that contempt, being essentially criminal in nature, is traditionally proceeded with by way of indictment. However, it has recently been held that this procedure has fallen into disuse in New South Wales: Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378. Accordingly, to involve the Attorney-General in an appeal would seem, in the current state of authority, redundant and unwarranted. The proceedings are criminal in nature. The Queen has the ultimate responsibility for the protection of the courts, the due administration of justice, and the enforcement of the criminal law. …
…
In these circumstances, it was proper for the appeals to proceed in the name of the Queen. It was on behalf of the Queen that counsel appeared and argued against the appellants’ contentions. For the reasons we have stated, we do not believe that it is appropriate, desirable or necessary that judges of the court should be named as respondents to appeals against orders made by them in contempt proceedings which they dealt with summarily. In future cases, any appeal should be brought against the Queen.
These cases make it abundantly clear that, on an appeal against a summary adjudication of contempt, the Queen – who has ultimate responsibility for the protection of the courts, the due administration of justice, and the enforcement of the criminal law – is the proper respondent.[6]
[6]We note that in cases such as Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186 and Zukanovic v Magistrates’ Court at Moorabbin (2012) 32 VR 216, courts in which contempt orders were made were named as defendants. However, cases such as these involve proceedings for prerogative relief, where the rules of court require the court or tribunal against whom the relief is sought be named as defendant to the proceeding: see Supreme Court (General Civil Procedure) Rules 2005, Order 56.01(2)(b).
I will later make some observations about the exercise of the power enjoyed by a court summarily to punish for contempt. However, I note that had the judge not exercised the summary contempt power, but rather adopted the procedures laid down in Part 3 of Order 75 of the County Court Civil Procedure Rules 2008 (‘the Rules’), by virtue of Order 75.06(3)(a) the proceeding for contempt would have been initiated by an originating motion entitled, ‘”The Queen v.” the respondent, “on the application of” the applicant’. That the Rules so provide fortifies my view that the Queen was the proper respondent to these proceedings.
Jurisdiction of the Court of Appeal
Although there may have been some initial uncertainty as to the proper respondent, it was uncontroversial that this Court had jurisdiction to entertain the application for leave to appeal against the sentence for contempt. It is as well, however, to acknowledge the source of that jurisdiction.
By s 278 of the Criminal Procedure Act 2009 a person sentenced by an ‘originating court’ may, by leave, appeal to the Court of Appeal against that sentence. Section 3 provides that the County Court ‘in its original jurisdiction’ is an ‘originating court’; and the Court’s ‘original jurisdiction’ includes ‘a proceeding for contempt of court’.
Thus, even though a charge for contempt may be laid, in effect, by the County Court itself, nevertheless the machinery for an appeal against a sentence imposed for contempt is the same as in the ordinary course of conviction and sentence in criminal cases.
Factual background
It is necessary to say something of the factual background.
The applicant was to be a witness in the trial of three individuals for aggravated burglary and serious assaults perpetrated upon him, his mother and her partner.
Drawing largely on the judge’s sentencing remarks – which, as to their description of the essential facts, have not been the subject of any contest – it appears that, prior to the trial, the applicant had refused to give evidence at committal proceedings. Later, when the trial was first listed in the County Court, the applicant failed to appear. He was soon after arrested under warrant.
On the day the trial was next listed to commence, 27 August 2012, the County Court judge presiding decided to hold a Basha hearing.[7] It was determined that the applicant would give evidence on that hearing.
[7]R v Basha (1989) 39 A Crim R 337.
The applicant, who was on remand in custody for other matters, was transported to the County Court's holding cells for the purpose of giving evidence. When the applicant was called, prison officers advised the judge that the applicant was refusing to leave the holding cell and refusing to enter the courtroom.
After lunch that day, the applicant was brought into Court. He turned around and repeatedly kicked the door. He refused to respond to the judge’s questions and demanded that the door be opened. The judge asked the applicant whether he was refusing to give evidence and he replied ‘Yes’.
Told by the judge he could be dealt with for contempt of Court, the applicant said he did not care. He was informed of the consequences of such a finding and again he said he did not care.
When the judge informed the applicant he could be represented, the applicant told the judge he would not be giving evidence and the judge should ‘stop wasting his time’. The applicant said he did not want to listen to the judge or have any input into any sentence that might be imposed. Shortly after, the applicant was removed from the Court.
Later the applicant was brought back into Court, placed in the dock and charged by the judge with contempt. The contempt alleged was constituted by refusing to enter the witness box, refusing to be sworn and refusing to answer questions. A plea of not guilty was indicated.
The next day, 28 August 2012, the applicant was represented by counsel and the applicant changed his plea to guilty. Evidence was given by the applicant’s mother that he feared being in prison with his attackers. Counsel submitted that the applicant’s fear could be understood in light of the serious injuries he suffered in the incidents the subject of the trial.
When passing sentence, the judge remarked that the applicant's evidence ‘was of great significance to the trial’. The applicant’s statement to the police indicated that he was able to identify the perpetrators of the offences against him, his mother and her partner. It was the judge's assessment that ‘the prosecution case has been substantially weakened’ by the applicant's refusal to give evidence and ‘the prospects of conviction accordingly are reduced’.
In mitigation, the judge took into account the applicant's fear of those against whom he was to have given evidence, and he reduced the sentence accordingly.
Perhaps erring a little in the applicant’s favour, the judge regarded the applicant’s criminal history as largely irrelevant ‘save that he indicated a general lack of respect for the law’. General and specific deterrence were regarded as ‘significant sentencing factors’.
The sentence of eight (8) months’ imprisonment which the judge imposed was ordered to be served cumulatively upon any sentence the applicant was then undergoing.
The grounds of appeal
The Notice and accompanying Written Case, as originally filed, pleaded four grounds of appeal. Thus, the applicant alleged that the sentence for contempt is manifestly excessive (ground 1); the judge took into account irrelevant matters (ground 2); the judge had ‘predetermined the outcome prior to submissions’ (ground 3); and the judge failed to take into account the plea of guilty (ground 4).
Upon the hearing of the application for leave to appeal on 31 January 2013, the applicant expressly abandoned ground 3, but sought leave to add two new grounds of appeal relying on fresh evidence. The Court granted leave to file written submissions going to the addition of those grounds, and reserved its decision as to whether to grant leave to add the grounds. On 12 February 2013 an Amended Notice was filed. It contained seven grounds. The first four grounds, grounds 1 to 4, replicated the four grounds in the original Notice (including, curiously, ground 3, which, as I have said, was expressly abandoned during counsel’s oral submissions). Two grounds, grounds 5 and 6, sought to plead the ‘fresh evidence’ grounds which had been foreshadowed by the applicant’s counsel on 31 January 2013. A seventh ground sought to raise a complaint that the judge took into account irrelevant considerations.
Further written submissions were subsequently filed. The applicant abandoned the two proposed ‘fresh evidence’ grounds, grounds 5 and 6, but provided arguments in support of proposed ground 7.
Written submissions, responsive to the applicant’s submissions, were also provided by the respondent. Among those submissions, objection was taken to any grant of leave to rely on proposed ground 7. In anticipation of the possibility that the Court might grant leave to add it, however, submissions going to the merits of the ground were also made.
The final result is that the Court now has before it an application for leave to appeal against the sentence for contempt based on four grounds. They are:
1. The sentence is manifestly excessive when consideration is given to:
(a)the plea of guilty;
(b)lack of relevant prior offending;
(c)reasons given for contempt;
(d)sentences imposed on like cases;
(e)the Applicant’s reasons for refusing to give evidence.
2. The Learned Sentencing Judge erred in taking irrelevant matters into account.
4. The Learned Sentencing Judge failed to take a relevant matter into account, namely, the plea of guilty.
7. The Trial Judge erred by having regard to irrelevant considerations:
Particulars
(a)The prosecution case has been substantially weakened;
(b)The prospects of conviction accordingly are reduced.
In my opinion, leave should be granted to amend the Notice by adding proposed ground 7. But for reasons that I will shortly discuss, in my view neither it, nor any of the other three grounds, should be upheld.
Taking an irrelevant matter into account (ground 2)
There is no merit in the complaint that the sentencing judge took an irrelevant matter into account, when he mused that he harboured a suspicion that the applicant had refused to give evidence ‘out of respect to a misguided criminal culture that you do not give evidence against other criminals’. The judge went on to say that he simply did not know the reason for the applicant’s intransigence. On a fair reading of his reasons, I think it to be plain that he did not take into account the irrelevant matters particularised in ground 2.
Failing to take plea of guilty into account (ground 4)
In my opinion it is unrealistic to contend that the judge failed to take into account, as ground 4 contends that he did, the plea of guilty. Guilty pleas are the almost daily grist to the mill of County Court judges. It is inconceivable that the very experienced judge did not pay it proper regard. True it is that he did not specifically refer to it in his sentencing remarks, but given the close temporal connection between the plea and sentence, and its obvious relevance to sentence both generally and specifically, in my view the judge cannot have failed to have taken it into account.
Counsel for the applicant drew our attention to the fact that the judge made no reference to s 6AAA of the Sentencing Act 1991, and he did not ‘state the sentence and the non-parole period, if any, that he would have imposed but for the plea of guilty’. It is clear that he should have done so. But, in the particular circumstances of this case, the failure to do so cannot unravel the sentencing discretion. For the reasons advanced, it is highly unlikely that the judge would not have moderated the sentence that he would otherwise have passed in recognition of the plea of guilty.
Taking irrelevant considerations into account (ground 7)
It will be recalled that following the oral hearing of this application, counsel for the applicant, by written submissions, sought to raise this proposed ground. As I have said, I would grant leave to amend the Notice by adding this ground, but I would not uphold it.
Lying at the heart of this ground is the contention that, in saying that ‘the prosecution case has been substantially weakened’ by the applicant's refusal to give evidence and ‘the prospects of conviction accordingly are reduced’, the judge took irrelevant considerations into account, thereby vitiating the exercise of the sentencing discretion.
In support of the proposed ground, counsel for the applicant submitted that the judge’s assessment was ‘necessarily speculative’, and was an opinion based on an assessment of the depositions and ‘the likely manner in which the trial was to conclude’. Since the findings were contingent upon the outcome of future events, they were irrelevant.
My initial inclination was one of attraction to these submissions. With the benefit of further reflection, however, I do not think that they withstand scrutiny.
It is clear from a complete examination of the judge’s remarks that he was contemplating the potential for the applicant’s conduct to affect adversely the prosecution of the charged individuals. In my view, he was in a better position than is this Court to assess that potential.
Moreover, there is authority for the proposition that it is not necessary to try and determine the precise effect that refusal to give evidence might have on a criminal trial. In Gilby,[8] the contemnor was involved in the commission of an offence relating to the growing of thousands of plants of marijuana, worth millions of dollars, on his property. He was arrested and confessed to his part, indicating to the police that he would give evidence at the trial of others involved. As a result, his sentence was less than otherwise it would have been. When called at the trial of the others, however, he refused to give evidence. His given reason was that he had been threatened. At the trial, on three separate occasions, he refused to be sworn or to give evidence. He was charged with contempt of court and ultimately imprisoned for six months. In dealing with him for the contempt, the NSW Court of Appeal said:[9]
It is not necessary to attempt to determine precisely the effect which the refusal of Mr Gilby to give evidence had upon the several charges brought against the relevant accused. It is clearly established that his evidence was important in the conviction of them in respect of some at least of the offence. The evidence of Mr Wood, the solicitor acting for the Director of Public Prosecutions, was that Mr Gilby’s evidence ‘was essential for proof of the charge against each of the accused on the first count in the indictment’ and Mr Wood said ‘that the charges against each of the accused, except for the accused Beavan, on the first count failed as a direct result of the refusal of the opponent to give evidence at the trial’. And, Mr Wood said, the evidence against each of the accused in relation to the third count in the indictment ‘was weakened, in varying degrees, by reason of the failure of’ Mr Gilby to give evidence. It is not necessary to decide whether Mr Wood’s estimate of the matter should be accepted without qualification. Mr Gilby’s evidence was, on any assessment of the matter, important.
[8]Registrar of the Court of Appeal v Gilby [1991] NSWCA 235.
[9]Ibid 14. (Emphasis added.)
Had the result of the criminal proceedings been known at the time the applicant was sentenced for the contempt, that may well have been a matter relevant to the exercise of the sentencing discretion.[10] But that is not to the point.
[10]DPP v Johnson [2002] VSC 583, [59] (Osborn J); R v Vasiliou (No 2) [2012] VSC 242, [10] (Beach J); Wood v Staunton (No 5) (1996) 86 A Crim R 183, 185 (Dunford J); R v Phillips (1983).
In my view it was legitimate for the judge to take into account the likelihood that the prosecution case against the alleged perpetrators of the aggravated burglary and assaults would be weakened by the failure of the applicant to give evidence. And in my opinion, he was in a good position to assess that likelihood. Rather than being an irrelevant consideration, in my view the judge’s assessment that the prosecution case had been weakened – with the concomitant potential to compromise the administration of justice – was a very relevant factor informing the exercise of the sentencing discretion.
I would not uphold proposed ground 7.
Manifestly excessive sentence (ground 1)
Ground 1 asserts that the sentence imposed is manifestly excessive. Several particulars are subjoined to the ground.[11]
[11]See [36] above.
The approach to a ground raising manifest excess was discussed by Young CJ in R v Kenny:[12]
In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft’s Case,[13] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge’s discretion.
[12]R v Kenny (Unreported, 2 October 1978, Vic, CCA). See also DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA).
[13]R v Williscroft [1975] VR 292, 300.
Put another way, a sentence will only be regarded as manifestly excessive if it is so far outside the range of those sentences properly open as to bespeak error.[14]
[14]Hanks v R [2011] VSCA 7, [22]; Neubecker v R [2012] VSCA 58, [74].
In assessing whether the sentence under consideration is manifestly excessive, it is necessary to first say something about the applicant’s antecedents. The applicant is aged 26 years, having been born on 18 December 1985. As an adult, between 1 October 2003 and the present, he has amassed a significant number of prior convictions. I need not set them out in detail but they include convictions for theft (including theft of motor vehicles), burglary, obtaining property by deception, handling stolen goods, going equipped to steal, damaging property, intentionally causing injury, recklessly causing injury, assault with a weapon, assaulting police, reckless conduct endangering serious injury, affray and robbery. He has previously breached community‑based and intensive correction orders and suspended sentences of imprisonment. The appellant has served various periods in custody by way of youth training centre and imprisonment. It is an unenviable record.
It is necessary next to turn to the offending. Contempt is a unique species of offence. It is the only criminal offence punishable summarily – that is, without a jury – at common law.[15] The penalty is at large. When in the face of the court, it is an offence that can be committed in a multitude of ways. In order to determine whether there is any substance in the complaint that the sentence is manifestly excessive, it is necessary to gauge the objective seriousness of the present contempt.
[15]Perkins, 511.
In this case the applicant was capable of giving evidence identifying the alleged perpetrators of very serious offences. He refused to do so. And having been given every opportunity to repent of his recalcitrance, he remained defiant. The experienced judge who, with respect, was in a better position than this Court to judge the possible impact on the prosecution case of the absence of the applicant’s evidence, formed the view that the prosecution case had been ‘substantially weakened’. It should be understood, therefore, that the vice of the contempt in this case was not the applicant’s wilful and gross impertinence directed to the judge, or his misbehaviour in the courtroom in kicking the door (and similar), or any insult to the dignity of the court. The vice of the applicant’s contempt was its capacity to frustrate the due and orderly administration of criminal justice.[16]
[16]In re Dunn [1906] VLR 493, 497 (Cussen J).
Contempt, committed in the fashion it was by the applicant, strikes at the core of the administration of criminal justice. As was put by Hedigan J in Jones:[17]
This power of sentence must be exercised having regard to the whole of the circumstances. But it is beyond doubt that this was a most serious contempt, one which strikes a blow at the heart of the criminal justice system. The courts cannot permit witnesses in cases of such seriousness, where the interests of both the community and the accused are vitally concerned, to refuse to give evidence without sanction. This is more serious than a witness who merely refuses to answer a particular question. It was a rejection of the system and his obligation to give evidence when called.
[17]R v Jones (1992) 58 A Crim R 471, 474.
Similarly, it was said in Montgomery:[18]
Nothing which we say should detract in any way from the views expressed by the judge that where victims or witnesses to serious crime refuse to do their duty or succumb to threats or fear of reprisals by refusing to give evidence or answer questions, the result is a failure of law and order.
[18]R v Montgomery [1995] 2 All ER 28, 34 (Roach LJ, Potter and Smith JJ).
Expressing sentiments in a like vein, when imprisoning an individual for six months for refusing to give evidence against co-accused, the NSW Court of Appeal observed in Gilby:[19]
In our opinion, it is necessary to impose a significant sentence of imprisonment. Several things may be said in relation to the offences committed. First, they are serious. If in a criminal proceeding a person refuses to give evidence when he should, he causes harm to other persons in his community: at least they are liable to suffer harm because of what he has done. It is, as we have suggested, a requirement of the law that, in general, a person give evidence when property called upon to do so, in order that criminals may be convicted. If criminals are not going to be convicted, they are less likely to be pursued and arrested. And, if they are not to be pursued or arrested, then the individual members of the community will suffer from what criminals will do.
[19]Registrar of the Court of Appeal v Gilby [1991] NSWCA 235, 14.
Those in the position of the applicant must know that conduct such as his cannot be tolerated. As Watkins LJ observed in Phillips:[20]
The witness who refuses to testify may have at his disposal evidence of great importance, the absence of which from a trial may be a serious interference with the administration of justice. It may even defeat it … It is of the utmost importance that everyone called upon to testify in our courts recognises that he or she is under a duty to do so and that a refusal or neglect to perform that duty may have dire consequences for the proper administration of justice and for that person.
[20]R v Phillips (1983) 78 Cr App R 88, 94.
I regard the applicant’s as a serious example of this species of contempt.
As I have said, a complaint that a sentence is manifestly excessive invites consideration of whether the sentence imposed is outside the range of those open in the proper exercise of the sentencing discretion. Having regard to the circumstances of the offence and those of the applicant (including all of the matters in mitigation put to the sentencing judge), I am unpersuaded that the sentence was outside the range of those properly open.[21]
[21]I note the following sentences of imprisonment having been imposed for contempt in similar cases: Re Brazel (Unreported, 27 June 1983, Tadgell J) – refusal to give evidence, 2 years; Jones (1992) 58 A Crim R 471 (Hedigan J) – failure to answer questions, 6 months; Garland (1997) 95 A Crim R 264 (White J, Sup. Crt, Qld) – refusal to give evidence, 9 months; Razak (2006) 166 A Crim R 132 (Johnson J, Sup. Crt, NSW) – refusal to be sworn, 15 months; Allbeury (No 2) (2011) 205 A Crim R 386 (Martin CJ, Sup Crt, WA) – refusal to be sworn at CCC, 2 years and 3 months.
I should add that counsel for the respondent very helpfully provided the Court with a Schedule of cases concerning sentences for contempt. Counsel is to be commended for her industry, but I do not think that I need to refer to the examples in the Schedule in any detail. It is enough to say, I think, that my examination of those sentences confirms my strong impression that the sentence passed in this case is well within the range of sentences properly open.
Ground 1 is not made out.
In the result I would, as I have said, refuse the application.
Exercise of the summary contempt power
What I have said is enough to dispose of the application. For future guidance I should, however, make some observations on the manner in which a judge faced with a similar situation should proceed.
By s 54 of the County Court Act 1958 the County Court ‘has the same jurisdiction, and may exercise the same powers and authority, in respect of any contempt of the court as the Supreme Court has and may exercise in respect of any contempt of the Supreme Court’.
Generally speaking, a compellable witness who unjustifiably refuses to give relevant evidence is guilty of contempt in the face of the Court.[22] Being in the face of the Court, the power to deal with it summarily is enlivened. It is, as I have said, an offence at common law.[23]
[22]Registrar of the Court of Appeal v Gilby [1991] NSWCA 235, 1; Smith v R (1991) 25 NSWLR 1, 9; Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388, 399–400; R v Phillips (1983) 78 Cr App R 88, 94.
[23]By comparison, s 134 of the Magistrates’ Court Act 1989 creates a statutory offence of contempt of court which includes refusal ‘to be sworn or to answer any lawful questions’.
In this case it is plain that the judge was of the view that contempt had been committed and that the applicant’s contempt should be dealt with. He had two choices available to him. First, since the contempt was in the face of the court, the judge had the power summarily to deal with it. Secondly, he had available to him the procedures provided for in Part 3 of Order 75 of the Rules. In my opinion, the preferable course would have been to adopt the second course.
This was not a case which, for example, ‘suggested need for the speedy removal of an obstruction to the due administration of justice’.[24] There was no urgency that the applicant be dealt with immediately, or any pressing need that the judge preside over any ‘trial’ of the contempt. Indeed, there are sound reasons why he should not have done so.
[24]Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186, 204.
As I have said, contempt is a unique offence in that it is the only criminal offence at common law punishable summarily.[25] The power of a judge to punish for contempt is an exceptional and very significant power which should be exercised sparingly and with great caution.[26] The need for great caution is obvious, since the judge places himself or herself in the position of prosecutor, witness, jury and judge.[27]
[25]Perkins, 511. See also Juries Act 2000, s 84.
[26]Kift v R [1993] 1 VR 703, 707‑8; Balogh v St Albans Crown Court [1975] QB 73, 85 (Denning MR), 89‑91 (Stephenson LJ).
[27]Fraser, 224‑5 (Kirby P and McHugh JA); Zukanovic v Magistrates’ Court at Moorabbin (2012) 32 VR 216, 224 [37] (J Forrest J).
Where, as in this case, there is no immediate need to uphold the authority of the court, a judge faced with the kind of situation that presented itself here would be well advised to take advantage of the procedures provided for by Part 3 of Order 75 of the Rules, rather than deal with the contempt in a summary fashion. The advantages of adopting that course were discussed in Kift:[28]
The matter that was alleged against the appellant was that she had committed a contempt otherwise than in the face of the court. Accordingly as his Honour indicated, the procedure which was set in train was an application made under Pt3 of O.75. It is helpful to bear in mind that this procedure is different in important respects from the summary procedure which is available where there is a contempt in the face of the court which demands an immediate response from the court. In such a case, which usually arises from events of which the court itself is a witness, special procedures are permitted, including the receiving of hearsay evidence. Moreover, the alleged contemnor does not have an unrestricted right to cross examine witnesses against him or her: Keeley v Brooking (1979) 143 CLR 162, at 173; 25 ALR 45, at 52; Fraser v R [1984] 3 NSWLR 212, at 227. That this summary procedure is exceptional and to be adopted only where the circumstances clearly demand it is emphasised in the judgments of the Court of Appeal in Balogh v St Albans Crown Court [1975] QB 73, at 85, 92 to 93; [1974] 3 All ER 283, at 288, 295. In less urgent cases, whether the contempt is alleged to have been committed in the face of the court or otherwise, the procedure of trial upon originating motion or summons, adopted in this case, is to be preferred. The feature of this procedure is that it is conducted in accordance with the ordinary Rules of Civil Procedure of the court with the filing of an initiating document specifying the contempt charged: R75.06(4). Another inevitable consequence of this procedure and, in most cases a great advantage of it, is that there will be a lapse of time between the events the subject of the charge and the trial.
Such a cooling off period is often of advantage to proper determination of the matter. …
[28]Kift v R [1993] 1 VR 703, 707‑8 (Crockett, Byrne and Harper JJ) (emphasis added.).
There is, with respect, a deal of wisdom in Moses LJ’s remarks in Huggins:[29]
In the heat of the moment there may be a perception in the judge of the need for speedy action and condign punishment, but the importance of the time for reflection is that it presents an opportunity to consider whether a less stringent course may be taken. Indeed, that time for reflection may itself avoid the need for any further action at all.
[29]R v Huggins [2007] 2 Cr App R 108, 110[18].
The need for circumspection, and thus the desirability in such a case – where practicable – of proceeding under the Rules, is emphasised by Phillips.[30] In that case the contemnor, when called to testify in a murder trial, refused to be sworn or give evidence. At the end of the day’s hearing, the judge brought the witness into court, found him to be guilty of contempt for refusing to testify and imprisoned him. At the trial’s conclusion, the accused was convicted of manslaughter, rather than murder. Speaking for the Court, Watkins LJ said:[31]
[I]t is argued that no or no sufficient opportunity was given to the appellant to purge his contempt. He did have an opportunity on the day on which he was punished, as I have already explained. True it is, however, that no opportunity was granted to him after that. The judge acted as he did before, if not well before, the case for the prosecution closed. It was, after all, the second day of a five-day trial. The appellant may have changed his mind. There was no reason to punish him upon that day at all in contrast to some other and later day. The end of the trial would have done as well as any other time for taking action of that kind.
… No one can be sure that the appellant, given even a night’s reflection, may not have changed his mind and offered to present himself as a witness. The judge was, we think, unnecessarily precipitous in this instance in proceeding as he did to deal with this appellant at the time he did. We think it is advisable in circumstances of this kind to punish at the conclusion of a trial or at the very soonest the end of the prosecution case. There may be a need in other circumstances to deal with a contempt of this kind more swiftly than that, but instances of this are we think likely to be rarely encountered.
[30](1984) 78 Cr App R 88.
[31]Ibid 93–4 (emphasis added).
Moreover, as the Court pointed out in Phillips, had the judge waited until the end of the trial before dealing with the witness for contempt, he would have been in a better position to determine the objective seriousness of the failure to testify:[32]
[The witness] may be one whose evidence adds little or nothing by way of weight, support or confirmation to what other witnesses have said. Such a person, it may well be thought, when his significance or otherwise can be properly assessed, may be very lightly punished or, where appropriate, his contempt disregarded altogether.
[32]Ibid 94.
Although the course adopted by the judge in the circumstances of this case was not productive of a miscarriage of justice, in my opinion it would be preferable in similar cases in the future to adopt the procedure provided for in the Rules.
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