R v Coskun (No 4)

[2022] NSWSC 696

Supreme Court

New South Wales

Medium Neutral Citation:	R v Coskun (No 4) [2022] NSWSC 696
Hearing dates:	16 March 2022
Decision date:	16 March 2022
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Witness appears to be guilty of contempt
Catchwords:	CONTEMPT — Criminal contempt — Contempt in the face of the court — Witnesses ­— witness refusal to give evidence interfered with the administration of justice — appears witness is guilty of contempt — direct Registrar to commence proceedings
Legislation Cited:	Supreme Court Rules 1970 (NSW), Pt 55 r 11(1)
Category:	Principal judgment
Parties:	Regina Cengiz Coskun
Representation:	Counsel: Ms S Traynor (Crown) Mr P Coady (Accused) Solicitors: Solicitor for Public Prosecutions Bannisters Lawyers
File Number(s):	2019/105006

Judgment

1. HIS HONOUR: The purpose of the following is to provide background and reasons for referring a witness in a criminal trial for prosecution for contempt of court.

2. Cengiz Coskun is being tried in respect of the alleged murder of John Odisho at Five Dock on 2 April 2019.

3. Sargon Odisho lived with John Odisho in an apartment where the relevant events, including the shooting of John Odisho, occurred. The Crown case is that the accused and another man entered the home for the purpose of a robbery, the desired proceeds being a substantial quantity of drugs and money.

4. Sargon Odisho (Mr Odisho) subsequently pleaded guilty to offences relating to his possession of drugs and firearms. He is presently serving a sentence imposed upon him in the District Court in 2020 for these offences.

5. On 2 April 2019 Mr Odisho provided a version of events when he was spoken to by police at the apartment and later interviewed at Royal Prince Alfred hospital. He was called in a pre-trial Basha hearing before me on 16 February 2022. On that occasion he answered some questions but not others, explaining repeatedly that he was “not comfortable” to answer. He indicated he had received legal advice prior to giving evidence: ^[1]

   1. 16.2.22, T33

Q. Mr Odisho, before today have you received a letter from the Director of Public Prosecutions indicating you should get advice from a lawyer about making an objection under section 128 of the Evidence Act?

A. Correct.

Q. Did you obtain such advice?

A. Correct, yep.

Q. And is it because of advice that you have received that you have given the answers that you are not comfortable to answer the questions?

A. No, my lawyer advised me to answer all the questions. I'm just not comfortable answering them. He told me to answer everything properly, you know, but I don't want to. I'm not comfortable.

Q. So are you saying that you are not comfortable to answer the questions for some other reason?

A. Correct.

6. Mr Odisho gave the following explanation for not giving evidence: ^[2]

“I'm in gaol. If I talk, things happen, you know. I'm not going to put my life at risk for this.

…

In gaol everyone knows what my case is, everyone knows that I will be subpoenaed, shit like that does happen and, yeah, people have told me, "Just don't talk or things will happen", you know. It's a normal thing in gaol for this, so any person can turn on you if you give evidence. I wouldn't put my life or my family's life at risk for anything or anyone.”

2. 16.2.22, T33, 36

7. Mr Odisho was called to give evidence before the jury in the trial on 14 and 15 March 2022. On the first day he adopted a similar approach to that which he had on 16 February. However, he further refused to answer some questions that were seemingly innocuous and could not form a conceivable basis for concern about his safety. One of many examples of this was questions merely asking whether a police officer had taken a statement from him. ^[3]

   3. 14.3.22, T947.45

8. Mr Odisho was also inconsistent in the approach he took to answering or declining to answer questions. At one point he answered affirmatively when asked whether he had told police that two men had come into the unit, and that they entered by coming in over the balcony. He was shown a transcript of what he had said to police in the immediate aftermath. He confirmed he had said that people had come from the balcony but denied saying he “heard blinds”. He denied he had heard someone in the unit, saying that was not true; he had lied. He said, “I never came out of my room”. Contradictorily, he said this a short time after: ^[4]

“Q. So you were in your room when these two men came in, is that right?

A.   I’m not comfortable answering that.

Q. But that’s what you just said in your evidence here?

A. I’m not comfortable answering that.”

4. 14.3.22, T972

9. The refusal to answer questions increased in frequency on the second day of his evidence in Mr Coskun’s trial. He adopted an almost complete blanket refusal to answering the Crown Prosecutor’s questions, including questions that were the same, or similar to, ones he had been prepared to answer the previous day. This attitude of blanket non-compliance rose to a point at which he refused to answer a question asking whether he had heard a video that had just been played in the court. He even refused to answer a question about whether he had appeared and given evidence the previous day. At the commencement of his evidence that day there were played recordings of a conversation and an interview with police on 2 April 2019. The ensuing exchange included the following: ^[5]

   5. 15.3.22, T1049.36-1050.19

“Q. And, similarly, you've just heard the recording of the body‑worn interview that you made with Detective Lord?

A. I'm not comfortable answering that.

Q. Did you hear that?

A. I'm not comfortable answering that.

CROWN PROSECUTOR: Well, I'd ask that your Honour direct the witness to answer that question.

HIS HONOUR

Q. Mr Odisho, we just sat here for the last half an hour or so listening to a recording of an interview between you and Detective Senior Constable Lord?

A. Yep.

Q. Are you reluctant to even acknowledge that you were sitting here listening to it with us?

A. Yeah, I don't want to answer that, your Honour.

Q. Just answer the question, would you?

A. I'm not comfortable answering that.

CROWN PROSECUTOR

Q. Was that you participating in that conversation?

A. I'm not comfortable answering that.

Q. What I am going to ask you about is some questions and answers. I asked you a number of questions about that yesterday; do you remember that?

A. I'm not comfortable answering that.

Q. Do you remember being here yesterday?

A. I'm not comfortable answering that.”

10. Mr Odisho appeared more prepared to answer questions asked by counsel for the accused but maintained a refusal to answer questions about matters of substantial importance in the case.

11. At the conclusion of his “evidence” yesterday I stood Mr Odisho down and required him to reappear at the end of the day in the absence of the jury. ^[6] I explained to him my concern about the extent to which he had refused to answer questions. He was informed I was contemplating there should be proceedings taken against him for being in contempt of court, and of the serious consequences that might follow. He was told he would be brought back to court today to allow him time to consider whether he might change his position, or otherwise give him the opportunity to say what he might wish about whether there should be proceedings taken for contempt. It was also suggested to him that he might wish to consider whether he would like an opportunity to obtain legal advice. He chose to respond immediately by saying, “I will not change my mind”. Nevertheless, I stood the matter down until this morning.

    6. 15.3.22, T1115-7

12. This morning Mr Odisho confirmed his attitude to the question of giving evidence had not changed. He indicated he had determined three weeks earlier that he would not give evidence and he remained steadfast in that view.

13. A charge of contempt was proposed in the following terms:

That on 14 and 15 March 2022, in the Supreme Court of New South Wales at Darlinghurst, when called as a witness in proceedings between the Crown and Cengiz Coskun he did wilfully refuse to give evidence, thereby interfering with the administration of justice.

14. Mr Odisho indicated he had received legal advice and he appreciated the potential for serious consequences ensuing from contempt of court proceedings being taken against him. He did not want any time to consider the proposed charge or to seek any further legal advice.

15. I recognise it is possible that I can deal with Mr Odisho in respect of the allegation of contempt. However, it appears to be accepted that unless it is a matter of urgency, the better course is that such a matter be referred for prosecution before another judge.

Conclusion and order

16. Pursuant to Pt 55 r 11(1) of the Supreme Court Rules 1970 (NSW), I confirm that it appears that Sargon Odisho is guilty of contempt.

17. I direct the Registrar to commence proceedings either on the charge I proposed, or as may be advised by the Crown Solicitor or counsel who she may instruct.

**********

Endnotes

Decision last updated: 30 May 2022