Principal Registrar of Supreme Court of NSW v Drollet - [2002] NSWSC 490

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CITATION: Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12569/01

HEARING DATE(S): 9 May 2002

JUDGMENT DATE: 6 June 2002

PARTIES :

Plaintiff: Principal Registrar of Supreme of Court of NSW
Defendant: Adam Drollet

JUDGMENT OF: Newman AJ at 1

COUNSEL : Plaintiff: R.D. Cogswell SC / B.K. Baker
Defendant: R. Toner SC

SOLICITORS: Plaintiff: Crown Solicitor
Defendant: K. Gourlie

CATCHWORDS: Contempt of court - refusal to answer questions at criminal trial of co-accused - reprisal against presiding judge - application of Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Smith v The Queen (1991) 25 NSWLR 1
Registrar of the Court of Appeal v Raad (Court of Appeal, 9 June 1992, unreported)
C v Registrar, Court of Appeal (Court of Appeal, 19 December 1995, unreported)
Reggistrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported)
Registrar of the Court of Appeal v Craven (No.2) (1995) 120 FLR464
Wood v Staunton (No.5) (1995) 86 A Crim R 183
Registrar v Glasby [1999] NSWSC 846
Prothonotary v Wilson [1999] NSWSC 1148
Cook & Ors v Phillips & Ors (Court of Appeal,29 September 1995, unreported)
Wilson v Prothonotary [2000] NSWSC 23
European Asian Bank v Wentworth (1985) 5 NSWLR 445
Principal Registrar, Supreme Court v Katelaris [2001] NSWSC 724

DECISION: para 46

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Thursday, 6 June 2002

12569/01 Principal Registrar of the Supreme Court of NSW v Drollet
JUDGMENT

1 HIS HONOUR: The defendant has pleaded guilty to four charges of contempt of court. Three of the charges involve the defendant’s refusal to answer material questions on a voir dire examination being held in a trial of one Abdul Sameer Khan in the District Court. The fourth charge involves the defendant’s action while in the witness box on the self same voir dire examination in throwing a container of water at the presiding judge. While, as I have said, the defendant has pleaded guilty to three charges involving his refusal to answer questions the Crown quite properly has submitted that his contempts in relation to refusing to answer material questions be treated as one contempt.

2 The first three charges are as follows:

(2) That on the same day and in the same trial before the same judge and being duly sworn he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether he remembered giving an undertaking to give evidence against Abdul Khan.

(3) That on the same day and in the same court before the same judge and being duly sworn he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether in the course of interviews with police at Campsie Police Station on 10 February 2000 and at Penrith Police Station on 3 March 2000, he spelt out in detail the involvement of the accused Mr Khan in robbery offences in which the defendant participated in February 2000.

3 The parties agreed that the facts of the matter are those which are contained in the particulars annexed to the statement of charge. Accordingly, I shall adopt as the facts of the matter those particulars. They are as follows:

(1) On 21 June 2000 the defendant signed an undertaking to give evidence in the trial of Abdul Sameer Khan (“the accused”) in relation to armed robbery offences committed between 24 January 2000 and 9 February 2000.

(2) On 23 June 2000 at Bidura Children’s Court Mr Crawford, Children’s Magistrate, sentenced the Defendant to a period of control of one year and three months commencing 9 February 2000 in respect of six robbery offences, and in respect of a further robbery in company offence committed on 1 February 2000 he was sentenced to a period of control of nine months cumulative upon the previous sentence, with a two month non-parole period commencing on 8 May 2001 and expiring on 9 July 2001.

(3) During the delivery of his sentencing remarks, his Worship indicated that he had given the Defendant a credit of three months on his sentence for the undertaking to give evidence on behalf of the Crown in the trial of the accused.

(4) The trial of the accused on five robbery charges and a charge of larceny of a motor vehicle commenced in the District Court of New South Wales on 28 May 2001 before his Honour Judge Armitage QC and a jury.

(5) In the course of the said trial on 29 May 2001, the Defendant was called to give evidence in the Crown case. The Defendant was duly sworn.

(6) During the course of examination-in-chief on the voir dire, the Defendant refused to answer material questions put to him by the Crown Prosecutor. The Crown Prosecutor was granted leave to cross examine the Defendant pursuant to s.38 of the Evidence Act 1995 and the Defendant thereafter refused to answer further material questions.

4 The Crown has particularised the defendant’s conduct in relation to his refusing to answer questions as having a tendency, as a matter of practical reality, to interfere with the administration of justice in connection with the trial Abdul Sameer Khan in that:

(a) the Defendant withheld evidence relevant to the issues at the trial;

(b) the Defendant denied the accused an opportunity of knowing the case he had to meet at trial;

5 In relation to the defendant’s actions in throwing a container of water at the presiding judge it is particularised by the Crown as interfering with the administration of justice in that:

(a) it had a tendency to intimidate his Honour and to deter him from performing the functions of his judicial office in connection with the trial of the accused;

(b) it had a tendency to intimidate judicial officers and to deter them from performing their judicial functions;

6 By his plea of guilty the defendant concedes both the facts I have set out above and also the allegations of his conduct interfered with the administration of justice.

7 The transcript of the proceedings on the voir dire before his Honour Judge Armitage QC starkly reveals the commission of the three episodes in which the defendant refused to give evidence. The first of the contempts occurred as is recorded below (p17):

8 The law in relation to penalties to be imposed for contempt of court have been subject of recent judicial scrutiny in this State. In Smith v The Queen (1991) 25 NSWLR 1 (CA) the Court by majority held that the penalty for contempt of court at common law is effectively at large. In Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 Studdert J in dealing with the present defendant’s co-contemnor held that the Crimes (Sentencing Procedure) Act 1999 applies to sentences for contempt of court.

9 In written submissions and oral argument the Crown submitted that certain sentencing principals apply to cases of contempt and also addressed the penalties for refusal to be sworn or to give evidence and the appropriate penalties for taking reprisal against a judge. No issue was raised as to the correctness of the Crown submissions on these points by senior counsel for the defendant. Having considered the relevant authorities I am of the view that the submissions made by the Crown in fact correctly state the law and I thus adopt them here.

Sentencing principles

10 In Registrar of the Court of Appeal v Maniam (No.2) (1992) 26 NSWLR 309 Kirby P said (at 314):

Director of Public Prosecutions v John Fairfax & Sons Ltd

11 His Honour noted that where a contempt is technical or, though wilful, has not involved an intention to interfere in the administration of justice, the court may accept an apology and content itself with a declaration of contempt, perhaps with an order that the contemnor pay the costs of the proceedings. As to a more serious class of contempt, his Honour said (at 315):

Australian Consolidated Press Ltd v Morgan

Penalty for refusal to be sworn or to give evidence

12 The significance of this form of contempt was addressed by Kirby P in Registrar of the Court of Appeal v Raad (Court of Appeal, 9 June 1992, unreported) (at 14):

Gilby

13 In C v Registrar, Court of Appeal (Court of Appeal, 19 December 1995, unreported) the Court held (at 10):

“There can be few more serious cases of contempt than a persistent repeated and obdurate refusal of a central witness in a criminal trial to answer questions when asked and directed by the Judge of trial.”

14 The importance of considerations of general deterrence was emphasised by Mahoney JA in Smith (at 23):

“It is the significance to others of the present punishment which has a particular importance. If a witness, particularly a convicted criminal, is seen to be able to defeat the trial of another criminal in this way, others will do it. The result will be that the enforcement of the criminal law and so the protection of the ordinary men and women will become difficult or impossible. Conduct of this kind will not be deterred by admonition or by gesture: it is necessary that the punishment for it be direct, immediate and exemplary.”

15 In Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, at 26-29) the Court identified five factors of importance in relation to penalty for contempt involving refusal to give evidence:

16 The Court also had regard to other subjective matters in relation to the contemnor. The factors considered in Gilby were adopted in Raad per Clarke JA at 9-12 and Registrar of the Court of Appeal v Craven (No.2) (1995) 120 FLR 464 (NSWCA).

17 In Wood v Staunton (No5) (1995) 86 A Crim R 183 at 185 Dunford J noted the factors identified in Gilby and identified additional factors:

1. the seriousness of the contempt proved;

2. whether the contemnor was aware of the consequences to himself of what he did;

3. the actual consequences of the contempt on the relevant trial or inquiry;

4. whether the contempt was committed in the context of serious crime;

5. the reason for the contempt;

6. whether the contemnor has received any benefit by indicating an intention to give evidence;

7. whether there has been any apology or public expression of contrition;

9. general and personal deterrence; and

10. denunciation of the contempt.

18 The reason or motive for the contempt can vary. For example, in Raad it was part of a plan to have one person falsely admit guilt of armed robbery so that the guilty man could escape the charge. In Craven (No.2) the Court found that it was to attempt to have prosecution authorities withdraw other criminal proceedings against the contemnor. In Registrar v Glasby [1999] NSWSC 846 Adams J found that the contemnor “dishonestly attempted to exculpate (her husband) from a cold-blooded contract killing in which she was herself involved”. It is conceded that a genuine apprehension of retaliation for giving evidence is a factor relevant to penalty, though in referring to the general pressure exerted on prisoners by the prison culture to maintain silence, Kirby P said in Raad (at 15):

“The rule of law cannot bend to that pressure. The courts must not succumb to it.”

Penalty for taking reprisal against judge

19 In Prothonotary v Wilson [1999] NSWSC 1148 Wood CJ at CL considered a contempt committed when a disappointed litigant threw bags of paint at Murray AJ. The Chief Judge said, inter alia, at [21]:

“The gravamen of the offence lies not in protecting the personal dignity of the judge who may be the object of an assault or personal attack but of protecting the public from the mischief that will incur if the authority of the courts is undermined or impaired. The point is well made in the judgments of the Court of Appeal in Re Johnson (1887) 20 QBD 68 where Bowen LJ said:

‘What is the principle which we have here to apply? It seems to me to be this. The law has armed the High Court of Justice with the power and imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals that insults to judges are not allowed. It is on the same ground that insults to witnesses or to jurymen are not allowed. The principle is that those who have duties to discharge in a court of justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to courts of justice.’”

20 Kirby ACJ observed in Cook & Ors v Phillips & Ors (Court of Appeal, 29 September 1995, unreported):

“It is in the nature of matters that come before courts that there will often be strong passions raised. Unless this Court, by its orders in cases such as this controls such passions in the environment of the court room and the precincts of the Court, the achievement of a peaceful curial resolution of disputes will be frustrated and may, in a particular case, be prevented. This civilised feature of our society could then give way to verbal abuse, physical assault and even worse.”

21 In Wilson v Prothonotary [2000] NSWCA 23 the Court of Appeal, by majority, reduced the sentence to the time that had by then been served, namely 3 months and 20 days. This was because of the significance of the obsessive-compulsive personality disorder suffered by the contemnor. The Court also considered that this diminished the significance of a lack of apology or contrition.

22 In European Asian Bank v Wentworth (1985) 5 NSWLR 445, the contempt involved punching a witness after the proceedings had concluded. Kirby P referred to the fact that stress and disappointment were common features of litigation, but did not excuse such conduct. But for the contemnor’s contrition and previous good character a serious penalty would have been warranted.

23 In Cook v Phillips (supra) the Court ordered the contemnor to pay the plaintiff’s costs of $7,000. The conduct involved threats and a blow to the plaintiff’s shoulder in the course of proceedings.

24 In Wilson (supra) Heydon JA noted, at [42]:

R v Herring

Attorney-General for New South Wales v Whiley

Rich v Attorney-General for Victoria

25 In Principal Registrar, Supreme Court v Katelaris [2001] NSWSC 724 the defendant, a medical practitioner, was found to have deliberately hit and abused a barrister out of frustration and to achieve revenge for the fact that he had been made a party to lengthy and hotly disputed litigation. An apology was eventually made. The action of the defendant had been deliberate but not been premeditated. The Court made a declaration that defendant was guilty of contempt but did not impose a penalty. He was ordered to pay (the) plaintiff’s costs in an amount of $3,000.

26 Following what fell from the High Court in Pearce I shall deal separately with the two contempts and then consider the question of sentence in terms of totality.

27 Turning first to the contempt involving the defendant’s refusal to give evidence. Accepting as I do the ten matters identified by Dunford J in Wood v Staunton as being a correct statement of the approach to be taken to such matters in law I will deal seriatim with those matters.

28 Firstly, there is no doubt that the contempt in this case is a very serious matter indeed. As may be seen from the authorities cited above a refusal to give evidence strikes at the very heart of the system of the administration of justice. His refusal to give evidence as was the case of his co-contemnor, Jando, resulted in the frustration of the trial taking place.

29 Secondly, I have no doubt at all that the defendant was fully aware of the consequences of the action he took. That I believe is the only conclusion to be gleaned from the passages I have cited above where the defendant’s contempt is illustrated.

30 Thirdly, the result of the defendant’s actions and those of his co-contemnor, Jando, were to cause the trial to be deferred.

31 Fourthly, Khan was charged with five counts of robbery and one of larceny of a motor vehicle. It follows that the contempt was committed in the context of a serious criminal matter.

32 Fifthly, the defendant has given no evidence in these proceedings as to why he committed the contempt. However, there can be little doubt that his reason for so doing was to avoid being described as a ‘dog’ by fellow inmates. A ‘dog’ is prison jargon for an inmate who informs on fellow inmates. It is the experience of this court that those inmates who are accused by fellow inmates of being informers are likely to suffer serious harm at the hands of their fellow inmates. However, as Kirby J stated in Raad (supra) the rule of law cannot bend to that pressure.

33 Sixthly, the defendant in fact had received a benefit by indicating his intention to give evidence in Khan’s trial. That may be seen from the objective facts stated above. Mr Crawford, Children’s Magistrate, had given the defendant a credit of three months on his sentence for the offence of armed robbery.

34 He has offered no apology and there is nothing before me to indicate that he has exhibited any contrition. He has of course pleaded guilty and I shall deal with this matter when I come to the subjective features which have been raised in relation to the defendant.

35 The need for general and personal deterrence and a denunciation of the contempt are, I believe, features which are obvious. It must be made obvious not only to the defendant but also to his fellow inmates and indeed to the community at large that refusing to answer questions in a criminal trial where a person can give evidence of probative value is a matter which the community and thus its courts cannot tolerate.

36 I shall deal with Dunford J’s eighth postulate, namely the character and antecedents of contemnor, when dealing with the subjective features of the case.

37 I turn now to the second matter of contempt. Plainly enough while not of itself a dangerous action the defendant’s conduct undermined the authority of the court and thus is a matter which must be treated very seriously.

38 I turn then to the subjective matters relating to the defendant. First, it must be noted for a person of his years he has a very poor criminal record. It is tragic that a person as young as the defendant has such a record. He was born on 28 February 1982 and is thus 20 years of age. He is currently serving sentences for a number of offences including armed robbery for which his non-parole period does not expire until 11 December 2005. Indeed those matters were considered by the Court of Criminal Appeal in a judgment delivered by the court on 14 February 2002.

39 In the course of the leading judgment in the Court of Criminal Appeal Sully J adverted to the fact that the defendant has had for some considerable time a serious drug abuse problem. Sully J put it this way:

’19 [5]. It is true, as the learned sentencing judge clearly well understood, that the respondent has, and has had for some considerable time, a serious drug-abuse problem. Such a state of affairs is, of course, tragic from the point of view both of the respondent as an individual, and of the society of which he is a part. As a matter of common humanity, any reasonable sentencing Court would wish to do something constructive in order to assist in the rehabilitation of a young person with the present respondent’s lamentable history of drug abuse. Such a Court has, compatibly with the proper performance of its public duty, scope to make appropriate recommendations to assist in the rehabilitation of such an offender. It seems to me, however, that it is a very different thing to say that a sentencing Court, when dealing with such a case as the present one, should be so carried away by the undoubted social problems and social disabilities of the offender as to fail to give proper weight to the imperative need to protect members of the public from the incidence of, relevantly, armed robbery.’

’27. In the circumstances of the present particular case, I am of the opinion that this Court should direct its Registrar to make urgent contact with the Commissioner for Corrective Services and to communicate to the Commissioner that this Court recommends that, in so far as proper prison administration and discipline might permit:

[1] The prisoner should be classified urgently to the end of ensuring that he is kept separate from older and more hardened criminal offenders.

[2] That consideration be given to the early placement of the respondent in an appropriate programme designed specifically for the needs of young offenders such as the respondent.

[3] That the respondent be given every proper opportunity to undertake appropriate educational and vocational courses; and that he be encouraged, in particular, to complete his secondary education.

[4] That the respondent’s place of detention from time to time be such as will maximise his opportunity to have regular contact with his father and with the other members of his immediate family.

[5] That the respondent be given urgent and continuing counselling, treatment and monitoring in connection with his drug and alcohol addictions.’

40 While no pre-sentence report was before the court Mr Toner SC who appeared for the defendant relied upon the matters which emerged from the Court of Criminal Appeal’s judgment in relation to the defendant as indicative of the sentencing options open in these present proceedings.

41 Senior counsel for the defendant stressed: i) the fact that he had pleaded guilty; ii) his age; iii) the fact that his refusal to give evidence would result in him being referred back to the Magistrate who had discounted a sentence passed upon him. In short, the defendant is in double jeopardy here.

42 Dealing with the submissions seriatim: first, this is not a case where a plea of guilty can be of much avail to a defendant. His apprehension, as it were occurred immediately the offences were committed. Had his plea of guilty been accompanied by some expression of contrition and apology then he plea could have been of considerable benefit to him in terms of reduction of sentence. However, it remains a matter I shall take account in determining sentence. I have also taken fully into account the two other matters urged by senior counsel.

43 I have also taken into account on the matter of parity the penalty imposed by Studdert J on the co-contemnor, Jando. Jando, unlike the present defendant, committed only one form of contempt, namely a refusal to give evidence. For his several contempts in this regard Studdert J imposed two sentences of 12 months periodic detention to be served concurrently. Unlike the present defendant Jando presented evidence before the court indicating that he had excellent prospects for rehabilitation. It was those prospects that induced Studdert J to impose the sentence which he did. In this regard the present defendant’s is clearly distinguishable from that of Jando.

44 Taking the subjective matters into account I am of the view that I should impose the following sentences in respect of each of the contempts:

1. In respect of the contempt involving a refusal to give evidence a sentence of 12 months imprisonment.

2. In relation to the contempt involving the defendant throwing a container of water at the presiding judge I believe that a sentence of six months should be imposed.

45 Pursuant to s.45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period. I take this step because the nature of the offence committed by the defendant in my view demands a period of full time custody not less than the total term I have determined.

46 Accordingly, the orders of the court will be as follows:

1. The applicant is to serve 11 months commencing on 12 December 2005 and expiring on the 11 November 2006.
2. A further sentence of four months commencing on 12 November 2006 and expiring on 11 March 2007.

Footnotes:

1. See also the factors listed in R v Montgomery [1995] 2 All ER 28, discussed in West: Punishment of Contempt (1994) 15 The Queensland Lawyer 85.

2. See also R v Phillips [1983] Crim LR 822 at 823

3. See now s.5DA Criminal Appeal Act 1912 and Parsons v The Queen (1993) 10 WAR 92, 66 A Crim R 550 (WACCA).

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Last Modified: 10/23/2002

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CITATION:	Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12569/01
HEARING DATE(S):	9 May 2002
JUDGMENT DATE:	6 June 2002
PARTIES :	Plaintiff: Principal Registrar of Supreme of Court of NSW Defendant: Adam Drollet
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	Plaintiff: R.D. Cogswell SC / B.K. Baker Defendant: R. Toner SC
SOLICITORS:	Plaintiff: Crown Solicitor Defendant: K. Gourlie
CATCHWORDS:	Contempt of court - refusal to answer questions at criminal trial of co-accused - reprisal against presiding judge - application of Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Smith v The Queen (1991) 25 NSWLR 1 Registrar of the Court of Appeal v Raad (Court of Appeal, 9 June 1992, unreported) C v Registrar, Court of Appeal (Court of Appeal, 19 December 1995, unreported) Reggistrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported) Registrar of the Court of Appeal v Craven (No.2) (1995) 120 FLR464 Wood v Staunton (No.5) (1995) 86 A Crim R 183 Registrar v Glasby [1999] NSWSC 846 Prothonotary v Wilson [1999] NSWSC 1148 Cook & Ors v Phillips & Ors (Court of Appeal,29 September 1995, unreported) Wilson v Prothonotary [2000] NSWSC 23 European Asian Bank v Wentworth (1985) 5 NSWLR 445 Principal Registrar, Supreme Court v Katelaris [2001] NSWSC 724
DECISION:	para 46