Director of Public Prosecutions v Makoi (No 4)

[2023] ACTSC 338

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Makoi (No 4)

Citation: 

[2023] ACTSC 338

Hearing Date: 

16 February 2023

Decision Date: 

21 November 2023

Before:

Baker J

Decision: 

See [18].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – witnesses – failure of witness to continue to attend Court pursuant to subpoena to give evidence at trial – witness commenced evidence in court – witness giving evidence via AVL – witness ended AVL call during cross-examination – witness subsequently uncontactable – failure to attend without just cause or reasonable excuse – criminal proceedings under s 719 of the Criminal Code 2002 (ACT) more appropriate than contempt proceedings – no direction made to begin contempt proceedings under r 2502 of the Court Procedures Rules 2006 (ACT).

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 2502, 2504

Criminal Code 2002 (ACT), s 719

Supreme Court Act 1933 (ACT), s 70A

Cases Cited: 

Allen v R [2013] VSCA 44; 36 VR 565

DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125

DPP v Makoi (No 3) [2023] ACTSC 337

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445

Keeley v Brooking [1979] HCA 28; 143 CLR 162

Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183; 166 A Crim R 393

Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; 53 NSWLR 527

R v Bilal Razzak [2006] NSWSC 1366; 166 A Crim R 132

Texts Cited:

David Rolph, Contempt (Federation Press, 2023)

Parties:

ACT Director of Public Prosecutions (Crown)

Beich Maker Makoi (First Accused)

Kock-Kedhia Maker Makoi (Second Accused)

Nyalat Matot (Third Accused)

Achan Matot (Fourth Accused)

Akim Dau (Fifth Accused)

Representation:

Counsel

T Hickey (Crown)

A Doig (First Accused)

S Robinson (Second Accused)

D Ager (Third Accused)

S McLaughlin (Fourth Accused)

S Baker-Goldsmith (Fifth Accused)

Solicitors

ACT Director of Public Prosecutions

Tim Sharman Solicitors (First Accused)

Andrew Byrnes Law Group (Second Accused)

Hugo Law Group (Third Accused)

Legal Aid ACT (Fourth Accused)

Fraser Criminal Law (Fifth Accused)

File Numbers:

SCC 4 of 2022

SCC 13 of 2022

SCC 14 of 2022

SCC 15 of 2022

SCC 16 of 2022

SCC 49 of 2022

SCC 50 of 2022

SCC 139 of 2022

BAKER J:      

1․On 6 February 2023, Ms Achol Bol was subpoenaed to give evidence in the trial of five co-accused on counts of aggravated burglary, assault occasioning actual bodily harm, damaging property, and threat to kill. There were delays in the proceedings which ultimately commenced on 7 February 2023, and as a result, Ms Bol commenced her evidence on 16 February 2023. Pursuant to an order made by the Court on 7 February 2023, Ms Bol gave her evidence via an audio-visual (AVL) link.

2․Ms Bol completed her examination in chief. Early in the cross-examination, Ms Bol was questioned about a number of inconsistencies between the account that she had given in her examination in chief, and the account that she had given to police on the evening of the alleged offending. After accepting that there were some inconsistencies in her accounts, Ms Bol disconnected the AVL link without notice to the Court. The prosecution was unable to contact or locate Ms Bol in the following days and she did not complete her evidence.

3․After Ms Bol’s departure, the prosecutor indicated that he did not consider there to be much utility in seeking a warrant to be issued for Ms Bol’s attendance: see s 70A of the Supreme Court Act 1933 (ACT). The prosecutor noted that while a warrant may have some utility in relation to the witness’s failure to obey court orders, it was unlike to assist with “the practicality of the trial” in light of the witness’s failure to respond to any attempts by the prosecution to contact her.

4․The evidence which Ms Bol gave, the significance of her evidence, and the circumstances of her departure are set out in full in my judgment in DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125 at [69] – [89].

5․In that judgment, I found Kock-Kedhia Maker Makoi guilty of aggravated burglary, assault occasioning actual bodily harm, and damaging property. I was not satisfied beyond reasonable doubt of the guilt of the remaining co-accused.  I sentenced Ms Makoi today to a total term of imprisonment of 3 years, eight months and seven days, to be served by way of an Intensive Corrections Order: DPP v Makoi(No 3) [2023] ACTSC 337.

6․Having now concluded the proceedings, it is necessary for me to consider whether any action should be taken in respect of the conduct of Ms Achol Bol.

7․A witness who refuses to give evidence may be guilty of contempt of court. As David Rolph observes in his recently published text, Contempt (Federation Press, 2023) at p 441:

Once a witness has sworn an oath or given an affirmation and begun to give evidence, it may be a contempt for the witness to refuse to answer a question he or she is asked. A refusal to answer questions obstructs the administration of justice because it deprives the court of evidence which it requires to determine the matter before it. Such conduct strikes at the heart of the administration of justice. It tends to undermine the authority of the court.

8․Examples of cases in which a witness has been found guilty of contempt for refusing to answer questions include Registrar of the Supreme Court (NSW) v Tran [2006] NSWSC 1183; 166 A Crim R 393 at 397 [22]; Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; 53 NSWLR 51 at 531 [11]; R v Bilal Razzak [2006] NSWSC 1366; 166 A Crim R 132 at [39]; and Allen v R [2013] VSCA 44; 36 VR 565.

9․On the material presently available, it appears that there is prima facie case of contempt against Ms Bol. Ms Bol was served with a subpoena which warned her that failure to comply with the terms of the subpoena would constitute a contempt of court. She commenced her evidence, and, without notice to the Court or the prosecution, disconnected the AVL link. The circumstances in which she disconnected the AVL and left the AVL facility – namely, immediately after she was questioned about inconsistencies between the evidence she had given in court and her previous report to police – tend against any suggestion that she had a reasonable excuse for her actions.

10․There are two possible routes for a contempt referral by a court in the ACT. First, an order may be made for the Registrar to apply to the Court to have the alleged contemnor punished for contempt: r 2502 of the Court Procedures Rules 2006 (ACT). Alternatively, where, as here, the contempt is in the face or hearing of the court, the court may by oral order direct the alleged contemnor to be brought before the court, or may issue a warrant for the person’s arrest: rule 2504 of the Court Procedure Rules.

11․The latter procedure is an example of what is sometimes referred to as the court’s “summary power to punish for contempt”. This summary power should only be imposed “in those exceptional cases where the conduct is such that ‘it cannot wait to be punished’ because it is ‘urgent and imperative to act immediately’ to preserve the integrity of a trial in progress or about to start’”: Keeley v Brooking [1979] HCA 28; 143 CLR 1 at 173 – 174; see also European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 452. The present is not such a case.

12․An alternative to the commencement of contempt proceedings would be for consideration to be given to charging Ms Bol with an offence contrary to s 719 of the Criminal Code 2002 (ACT). Section 719 provides as follows:

719 Failing to attend

(1)A person commits an offence if—

(a)the person is served with a subpoena to attend to give evidence or information, or answer questions, in a legal proceeding; and

(b)the person—

(i) fails to attend as required by the subpoena; or

(ii) fails to continue to attend until excused from further attendance.

Maximum penalty:  50 penalty units, imprisonment for 6 months or both.

(2)This section does not apply if the person has a reasonable excuse.

(emphasis added)

13․The Court has no power to direct that charges be laid under this provision.

14․A question may arise as to whether s 719 of the Criminal Code is intended to operate to the exclusion of the law of contempt in the cases to which it applies. In my view, clearer language would be required to abrogate the jurisdiction of the Court to bring proceedings for contempt in circumstances where a witness absents themself from court proceedings without being excused by the Court.

15․However, it is not necessary for me to finally determine that question at this time. I am satisfied that, in the circumstances of the present case, if action is to be taken, it is more appropriate for a charge to be laid by prosecuting authorities under s 719 than for contempt proceedings to be directed by this Court. My reasons for so concluding are as follows:

(i)Ms Bol’s whereabouts are currently unknown, and it is unlikely that Ms Bol is presently in this jurisdiction;

(ii)Whilst there is a prima facie case of contempt, as the prosecutor submitted, there may be reasons why Ms Bol was unable to complete her examination, which are unknown to the Court.

16․As to (ii) above, I have borne in mind that the circumstances in which Ms Bol gave evidence were unusual. In particular, after Ms Bol departed, the prosecutor informed the Court via email that at the time of giving evidence, Ms Bol had outstanding arrest warrants in Victoria. I was not aware of these warrants at the time that I made the order for Ms Bol to give evidence via AVL. There may have been conversations between the prosecution and Ms Bol to secure her attendance to give evidence via AVL which may be relevant to a consideration of whether Ms Bol should be prosecuted for her failure to complete her evidence.

17․In my view, the usual criminal processes – by which prosecuting authorities determine whether a charge should be laid after taking into account all of the information available; may then issue a warrant for the accused’s arrest if a charge is laid and the accused cannot be found; and may take into account any explanation subsequently provided by the accused in deciding whether to continue the charge – are better suited to the particular circumstances of the present case than the institution of proceedings for contempt by this Court.

18․For these reasons, I have concluded that it is not appropriate to direct the commencement of proceedings for contempt against Ms Bol.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker.

Associate:

Date: 21 November 2023