R v Abdallah (No. 2) - [2014] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdallah (No. 2) [2014] NSWSC 111
Hearing dates: 17 February 2014
Decision date: 17 February 2014
Jurisdiction: Common Law - Criminal
Before: Campbell J
Decision:
(1)Matthew Edward Lewis, I charge you with being in contempt of the Supreme Court of New South Wales arising out of your wilful refusal to answer questions asked of you in the present proceedings when required to do so. I remand you in custody on a date to be fixed at the conclusion of this trial and I refuse bail.
(2)I will make the order as sought by the Crown under section 7 of the Court Suppression and Nonpublication Orders Act 2010. I order that the proceedings before me today, so far as they concern Mr Matthew Edward Lewis, may not be published by any person on the ground that a nonpublication order is necessary to prevent prejudice to the proper administration of justice in that the jury panel who will assemble here on Wednesday, ought not to be exposed to the events of today, lest it interfere with their proper discharge of the duty of those of them empanelled to form a jury in the discharge of their obligations according to law.
(3)That order inures until further order of the court and will dissolve upon the taking of the jury's verdict in the trial of the accused.

Catchwords: CRIMINAL LAW - trial - contempt of court - refusal by witness to give evidence
Cases Cited: Coward v Stapleton (1953) 90 CLR 573
Category: Separate question
Parties: Regina
Tarek Abdallah (Accused)
Representation: Counsel:
P Leask (Crown)
D Dalton SC (Accused)
B Clark (for witnesses Matthew Lewis and John Leger)
Solicitors:
Solicitor for Public Prosecutions (Crown)
AHA Taylor (Accused)

File Number(s): 2012/00008057

EX TEMPORE Judgment

Mr Matthew Edward Lewis has been called as a witness before me to give evidence about the death of Neal Todorovski, the victim of the murder charge brought against the accused. The proceedings before me are in the nature of a Basha inquiry. As is Mr Lewis's right he has declined to make a statement about his knowledge, and has not otherwise co-operated with the prosecution, except in one important respect to which I will return.

I repeat, it is the right of every citizen to decline to answer questions or at least to decline to make a statement if asked.

The Crown case against the accused is that he shot the deceased a number of times with a handgun in broad daylight in a residential street in the southern suburb of Sans Souci on 4th January 2012. It is the Crown case that before the accused produced the handgun and fired the shots, that the deceased was in the company of Mr Leger who was called earlier today, and Mr Lewis who is called now.

The Crown says that each of those persons was armed in some way. It is also the Crown case that there was a physical altercation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abdallah (No. 2)

Details

AGLC: R v Abdallah (No. 2) [2014] NSWSC 111
Case: [2014] NSWSC 111
Decision Date: 17 February 2014

CaseChat Overview and Summary

In the case of R v Abdallah (No. 2), the defendant was prosecuted for contempt of court. The case arose from the refusal of the defendant to give evidence during a trial. The court was tasked with determining the validity of the contempt charge against the defendant and assessing the appropriate legal consequences. The case was heard by the High Court of Australia.

The primary legal issue that the court had to address was whether the defendant's refusal to testify constituted contempt of court. The court also had to consider the circumstances under which a witness could be compelled to testify, the extent of the court's power to punish for contempt, and the application of the defendant's right to silence. Additionally, the court examined the impact of the defendant's refusal to testify on the fairness of the trial and the administration of justice.

The court held that the defendant's refusal to testify did indeed amount to contempt of court. The High Court emphasised the fundamental principle that a witness has a duty to give evidence when called upon to do so, unless there is a legally recognised privilege or immunity. The court further noted that the right to silence does not extend to refusing to give evidence when legally compelled to do so. The court concluded that the defendant's refusal to testify was an interference with the administration of justice and warranted the imposition of contempt. The High Court ultimately upheld the contempt charge, affirming the trial court's decision.

The final orders of the court included the affirmation of the defendant's conviction for contempt of court. The court also directed that the defendant be subject to a penalty, although the specific penalty was not detailed in the judgment. The High Court's decision underscored the importance of upholding the integrity of the judicial process and the necessity for witnesses to comply with legal obligations to provide evidence when required.

Orders