R v Allan Dennis Pena; R v RY

CITATION:	R v Allan Dennis Pena; R v RY [2007] NSWDC 190
HEARING DATE(S):	17/9/07; 18/9/07; 21/9/07; 24/9/07;
JUDGMENT DATE:	24 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	1. Mr Youmaran is found guilty of and convicted of contempt of court;; 2. On each count he is sentenced to 14 days imprisonment, such sentences to be served concurrently backdated to commence on 18 September, 2007 and expire on 2 October, 2007;; 3. I grant a certificate pursuant to section 128 of the Evidence Act in relation to evidence given by Mr Youmaran on 18 September, 2007 in response to questions other than the questions in relation to which directions were given.
CATCHWORDS:	Contempt in the face of the Court - s128 Evidence Act - supply prohibited drug - possibility of self-incrimination - objection to question - granting of certificate - refusing or failing to comply with direction
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 District Court Act 1973 Evidence Act 1995
CASES CITED:	R v Basha (1989) 39 A Crim R 337 Filippetti (1978) 13 A Crim R 335 Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 R v Minani [2005] NSWCCA 226 Wood v Staunton (No 5) (1995) 86 A Crim R 183 Callanan v Bush [2004] QSC 088
PARTIES:	R Allan Dennis Pena RY
FILE NUMBER(S):	06/21/3293
COUNSEL:	Crown: Mr J Crespo Defence: Mr McGrath (for Mr Pena) Defence: Mr Young SC (for RY)
SOLICITORS:	Crown: Mr Thompson Defence: Mr Katsoolis (for Mr Pena) Defence: Mr Kyriacou (for RY)

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JUDGMENT

Proceedings

1 RY has objected to giving evidence under section 128 of the Evidence Act on a Basha inquiry during the trial of the accused.

2 A warrant was issued to bring RY to court for the Basha inquiry. The Crown did not propose to call RY simply making him available if the defence wished to examine him. There was no statement from RY.

Issues

3 The issues were:

(a) whether RY should be directed to answer questions from defence counsel about his involvement with the accused in various offences;

(b) whether he should be granted a certificate under section 128 in relation to his evidence; and

(c) what steps should be taken in the event that he refused to answer questions put to him.

Background

4 The accused is charged with the following counts on an indictment of supplying a prohibited drug, namely 1.8559 kg of methylamphetamine on 31 May, 2006 pursuant to s25(2) of the Drug Misuse and Trafficking Act 1985; in the alternative, knowingly take part in the supply of the same quantity of the same drug.

5 RY has been charged with a number of offences, including matters identical, or very similar, to the charges brought against the accused. Those are currently listed in the Local Court. He also has an outstanding murder charge against him which is listed for trial in the Supreme Court on 21 April 2008.

Facts

6 The…