R v Aristizabal Serna - [2015] QSC 371

SUPREME COURT OF QUEENSLAND

CITATION:

R v Aristizabal Serna [2015] QSC 371

PARTIES:

R
v
GILBERTO ARISTIZABAL SERNA

(defendant)

FILE NO/S:

Indictment No 864 of 2011

DIVISION:

Supreme Court of Queensland

PROCEEDING:

Contempt hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 December 2015 – delivered ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2015

JUDGE:

Mullins J

ORDER:

The defendant is sentenced to imprisonment for a period of six months, concurrent with his existing sentence.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – CONTEMPT COMMITTED IN FACE OF COURT – where defendant and co-offenders were charged on the same indictment – where defendant had been interviewed by police when arrested, but did not provide a statement to police – where defendant pleaded guilty and was sentenced – where defendant subpoenaed by the prosecution for a pre-trial application to ascertain if, and what evidence, he could give in the trial of the co-offenders – where defendant refused to be sworn or affirmed to give evidence at the pre-trial hearing and indicated that he would not answer questions or participate in the proceeding – where defendant ordered to show cause as to why he should not be punished for contempt of the court – whether pre-trial application for a direction or ruling could be used by the prosecution to ascertain if defendant would give evidence at the trial – whether defendant was in contempt of the court – whether defendant showed cause as to why he should not be punished for contempt of the court

Criminal Code (Qld), s 590AA

R v Basha (1989) 39 A Crim R 337, considered
R v Freeman[1998] QCA 462, cited
R v Garland (1997) 95 A Crim R 264; [1997] QSC 145, cited
R v Lemmens [2010] QSC 271, cited

COUNSEL:

G R Rice QC for the Crown

G McGuire for the defendant

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the Crown

Guest Lawyers for the defendant

.HER HONOUR: Please stand, Mr Serna. Mr Serna, you were subpoenaed to give evidence before me on a pre-trial hearing on 5 November 2014. On that occasion, you refused to be sworn or affirmed to give evidence and you made it very clear that you were not going to answer any questions that you were asked or participate in any way in the hearing. As a result, I found that you should show cause as to why you should not be punished for contempt of the court and the contempt was particularised as your failing to be sworn or affirmed when you were subpoenaed to give evidence on a hearing. I am satisfied that the contempt of court has been proved and that you have not shown cause as to why you should not be punished for contempt for that contempt that was committed on 5 November 2014. I sentence you to imprisonment for six months which will be concurrent with your existing sentence. So you may…

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 Aristizabal Serna

Details

AGLC: R v Aristizabal Serna [2015] QSC 371
Case: [2015] QSC 371
Decision Date: 3 December 2015 – delivered ex tempore

CaseChat Overview and Summary

The defendant, Aristizabal Serna, was charged alongside co-offenders on a single indictment. After pleading guilty, Serna was sentenced, yet subsequently, the prosecution subpoenaed him for a pre-trial application. This application was intended to ascertain whether and what evidence Serna could provide in the trial of his co-offenders. During this pre-trial hearing, Serna refused to be sworn or affirmed, and he declined to answer questions or participate in the proceedings. The prosecution then issued an order to show cause as to why Serna should not be punished for contempt of the court.

The primary legal issues the court had to address were whether a pre-trial application could be employed by the prosecution to determine if a defendant would testify at trial, and whether Serna's refusal to participate in the pre-trial hearing constituted contempt of the court. Additionally, the court needed to decide whether Serna provided valid reasons for not being punished for contempt.

The court ruled that the prosecution could use a pre-trial application to assess if a defendant would give evidence at trial. The court found that Serna's refusal to be sworn, to answer questions, and to participate in the proceedings constituted contempt of the court. Despite Serna's argument that his silence was protected by his right to silence, the court determined that this did not exempt him from complying with the court's order to participate in the pre-trial hearing. As a result, the court found that Serna had not shown cause as to why he should not be punished for contempt. The court ordered Serna to serve a sentence of six months imprisonment, to run concurrently with his existing sentence.

Orders

Orders of the court

The defendant is sentenced to imprisonment for a period of six months, concurrent with his existing sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Aristizabal Serna [2015] QSC 371
PARTIES:	R v GILBERTO ARISTIZABAL SERNA (defendant)
FILE NO/S:	Indictment No 864 of 2011
DIVISION:	Supreme Court of Queensland
PROCEEDING:	Contempt hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 December 2015 – delivered ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2015
JUDGE:	Mullins J
ORDER:	The defendant is sentenced to imprisonment for a period of six months, concurrent with his existing sentence.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – CONTEMPT COMMITTED IN FACE OF COURT – where defendant and co-offenders were charged on the same indictment – where defendant had been interviewed by police when arrested, but did not provide a statement to police – where defendant pleaded guilty and was sentenced – where defendant subpoenaed by the prosecution for a pre-trial application to ascertain if, and what evidence, he could give in the trial of the co-offenders – where defendant refused to be sworn or affirmed to give evidence at the pre-trial hearing and indicated that he would not answer questions or participate in the proceeding – where defendant ordered to show cause as to why he should not be punished for contempt of the court – whether pre-trial application for a direction or ruling could be used by the prosecution to ascertain if defendant would give evidence at the trial – whether defendant was in contempt of the court – whether defendant showed cause as to why he should not be punished for contempt of the court Criminal Code (Qld), s 590AA R v Basha (1989) 39 A Crim R 337, considered R v Freeman[1998] QCA 462, cited R v Garland (1997) 95 A Crim R 264; [1997] QSC 145, cited R v Lemmens [2010] QSC 271, cited
COUNSEL:	G R Rice QC for the Crown G McGuire for the defendant
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the Crown Guest Lawyers for the defendant