R v Diallo (No 10); Re referral of witness KL for contempt
[2024] NSWSC 1085
•18 September 2024
Supreme Court
New South Wales
Medium Neutral Citation: R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 Hearing dates: 8 July 2024 and 19 August 2024 Date of orders: 18 September 2024 Decision date: 18 September 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) KL and his solicitors to be advised that I am inclined to refer the matter to the Prothonotary to institute proceedings for contempt.
(2) KL is directed to appear before the Court at 2:30pm on 19 September 2024 to provide submissions as to why the matter should not be so referred.
(3) KL is to appear by audio visual link and I direct the Registrar to make the appropriate arrangements for that to occur.
Catchwords: CRIMINAL LAW – contempt in the face of the court – where witness refuses to answer questions when directed to do so – alternative procedures for dealing with contempt – unusual circumstances – witness charged with unrelated murder – where witness seeking to traverse a plea of guilty based on trauma response to watching death of victim of current killing – where witness directed to answer questions with the protection of a certificate under s 128 of Evidence Act – preferable not to deal with contempt by summary procedure – preferable for a different judge to deal with contempt proceedings – whether witness should be afforded opportunity to be heard
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Evidence Act 1995 (NSW), ss 128(3), 128(4), 128(5)
Supreme Court Act 1970 (NSW), s 119(2)
Supreme Court Rules 1970 (NSW), Pt 55, Div 3, rr 3, 11(1), 11(6)
Cases Cited: European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141
In the matter of the Compensation Court of NSW (Court of Appeal (NSW), 20 December 1985, unrep)
Jane Doe 1 v Dowling [2017] NSWSC 57
Keeley v Brooking (1979) 143 CLR 162; [1979] HCA 28
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 R v Coskun (No 4) [2022] NSWSC 696
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
R v Diallo & Ors(No 7) [2024] NSWSC 978
R v Qaumi & Ors (No 62) [2016] NSWSC 1215
R v Taber and Styman; Re Shannon v Styman [2005] NSWSC 1329
R v WE (No.15) [2020] NSWSC 332
Registrar of Court of Appeal v Maniam(No 1) (1991) 25 NSWLR 459
The King v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3
Texts Cited: N/A
Category: Procedural rulings Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
KL (Alleged Contemnor)Representation: Counsel:
Solicitors:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
M Fernando (KL)
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)
AA Criminal Lawyer (KL)
File Number(s): 2022/00052005; 2022/00051961; 2022/00052239; 2022/00091174 Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).
JUDGMENT
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This judgment relates to the conduct of a witness, KL, [1] and whether they should be referred to the Prothonotary for the initiation of proceedings for contempt of court. The possible contempt concerns KL’s refusal to answer several questions asked of him by the Prosecutor in a murder trial and, on several occasions, refusing to answer when he was directed by the Court to do so. The conduct occurred on two separate occasions. First, during a pre-trial hearing on 8 July 2024 and, secondly, in the presence of the jury on Monday 19 August 2024.
1. The witness is under the age of 18 years and there is a statutory prohibition on the dissemination of material that may lead to their identification: see s 15A Children (Criminal Proceedings) Act 1987 (NSW).
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My preliminary view is that the conduct constitutes contempt in the face of the Court.
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KL should be afforded procedural fairness before further action is taken. Accordingly, KL, by his lawyers or otherwise, will be given the opportunity to make submissions as to why the matter ought not to be referred to the Prothonotary for the initiation of contempt proceedings. What follows is a short summary of the circumstances leading to this situation. Meanwhile, the trial is continuing.
Background
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Oliver Coleman (“the deceased”) died of stab wounds on 1 September 2021. Five accused men have been charged with his murder and the attempted murder (also by stabbing) of two other men which occurred at around the same time and place.
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The prosecution case is that the accused men, pursuant to a joint criminal enterprise, attended the deceased’s home in Blacktown intending to kill or inflict serious injury on Oliver Coleman or other members street groups or gangs known as the “Queen Street Boys” (“QSB”) and “Murda”. The accused were members of what is said to be a rival gang known as “MOB” (said to be an acronym for “Money Over Bitches”). Part of the defence case is that, whatever their purpose in attending the Coleman home, they ultimately fled the scene with around 10-13 men chasing them with weapons including golf clubs and large knives. It seems that an issue for the jury will be whether the accused men, or any of them, acted in self-defence.
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KL is said to be a member of Mr Coleman’s group, was present at the Coleman home on 1 September 2021 and was part of the group that left that house and chased the accused men away.
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Around nine months after Mr Coleman’s death, KL was charged with the murder of Uati Faletolu who was stabbed at the Royal Easter Show on 11 April 2022 (“the Easter Show murder”). Although KL pleaded guilty to the murder charge while the matter was still in the Children’s Court, there is a possibility that he will traverse his plea and rely on a partial defence of substantial impairment. More detail of that can be found in an earlier interlocutory judgment where I declined, over the Prosecutor’s call, to order production of certain reports prepared in those proceedings: R v Diallo & Ors(No 7) [2024] NSWSC 978.
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Two other things should be observed.
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First, KL objected to giving evidence about the events of 1 September 2021 based on his privilege against self-incrimination. I found there were reasonable grounds for his objection: Evidence Act 1995 (NSW), s 128(3). However, I was satisfied that the interests of justice “required [KL] to give the evidence” and, accordingly, “required” him to do so: Evidence Act, s 128(4). Pursuant to the provisions of s 128(5), I gave KL a certificate meaning that his evidence “cannot be used against” him, except in respect of the falsity of his evidence.
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Secondly, and relatedly, the objection taken by KL was more complex than similar objections taken by witnesses who were also present at the Coleman house that night and joined the group that left those premises armed with golf clubs and, according to some of the evidence, knives. His concern went further because evidence of what he saw and how he reacted may be relevant to his possible partial defence of the Easter Show murder. It was for that reason that his Public Defender submitted, persuasively but unsuccessfully, that it was not in the interests of justice that he be required to give evidence. It was also for that reason that the certificate granted to him was to be:
“…drafted in the broadest terms to ensure that the evidence cannot be used in any way against him and I’ll make non publication orders if called upon to do so or requested thereby those answers will not be published beyond the parties in this court; specifically to the prosecutors and experts in the other matter [that is, the Easter Show murder].” [2]
2. Tcpt (8/7/24) p 169.
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It was in that context that KL gave evidence first on a Basha inquiry on 8 July 2024 and then in the trial on 19 August 2024.
KL’s evidence on 8 July 2024
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KL’s evidence at the pre-trial hearing included:
“Q. Do you remember the day that Oliver Coleman died?
A. I object.
HIS HONOUR: I think that’s probably in the territory where there’s reasonable grounds. Does anyone want to be heard against that?
FERNANDO: No.
SPEAKERS: No, your Honour.
HIS HONOUR: All right. I also think it’s in the territory where I’m inclined, subject to anything you have to say, to require an answer.
FERNANDO: Your Honour, it is exactly in that area that I’ve already addressed your Honour on. I don’t wish to say anything further.
HIS HONOUR: All right. I’m satisfied that the objection is based on reasonable grounds but that it’s in the interests of justice given the circumstances that he be required to answer. I direct him to do so and he will be--
Q. You will be protected by a certificate if you answer that question, which again will be cast in the broadest terms.
HIS HONOUR: Thank you.
BALODIS
Q. Do you remember the day Oliver Coleman died?
A. I prefer not to answer.
Q. All right. But I’d like to ask you about that though?
A. No comment.” [3]
3. Tcpt (8/7/24) pp 173-174.
…
“VIDEO TAPE PLAYED TO COURT
BALODIS: Pause it.
Q. Now do you recognise that person on 2 September 2021 on that recording at 56.27?
A. Hmm?
Q. Do you recognise that person?
A. No comment.
Q. I’ll just play a little bit more for you.
VIDEO TAPE PLAYED TO COURT
BALODIS: Just pause it there.
Q. All right, we’ve paused it at 57 and two seconds. I’ll just ask you again, do you recognise that person?
A. No comment.
Q. Well if I suggest to you that that’s you?
A. Hmm?
Q. That’s you?
A. No comment
…
Q. All right. I mean do you remember this incident?
A. No comment.
BALODIS: Well, can I ask your Honour to direct the witness?
HIS HONOUR: Yes.
…
Q. So you’ve given the answer ‘no comment’ to a number of the questions, like who the person in that video is and whether it’s you and whether you remember the incident. You’ve said ‘no comment’. That is not an answer. I’m requiring you to give an answer. Can you please do so?
A. No, I respectfully pass.” [4]
4. Tcpt (8/7/24) pp 174-176.
…
“Q. The psychiatrist. You’ve seen a psychiatrist by the name of Dr Ellis?
A. Yeah.
Q. Yes. And you’ve spoken to him about Oliver Coleman, haven’t you?
A. I object.
HIS HONOUR: Again, I think that - the objection, I take it, is based on self-incrimination rather than on something else.
FERNANDO: I take it to be that, yes, your Honour.
HIS HONOUR: Well again I’m satisfied that’s a reasonable--
Q. You have reasonable grounds to object, but I require you to answer the question and you’ll have a certificate.
HIS HONOUR: Yes, Mr Prosecutor.
Q. The question is whether you spoke to Mr Ellis, Dr Ellis, about this?
A. Mm.
BALODIS
Q. Did you?
A. Yeah.
Q. Yes. And did you talk to him about seeing Oliver Coleman on the night that he died?
A. No comment.” [5]
5. Tcpt (8/7/24) pp 176-177.
…
“Q. Did you speak to Dr Seidler, the psychologist, about what had happened to Oliver Coleman?
A. No comment.
HIS HONOUR
Q. I’ll just pause there. I direct you to answer the question. Do you understand?
A. Yes.
Q. And you say? Your response to that direction?
A. Huh?
Q. What do you say? When I say to you - he’s asked you a legitimate question, I’m telling you to answer it. What’s your response to that?
A. No comment.
BALODIS
Q. If I ask you any questions about what you spoke to the psychologist about, will you tell me?
A. No.
Q. If I ask you any questions about how Oliver Coleman came to die, will you answer me?
A. No.” [6]
6. Tcpt (8/7/24) p 178.
The evidence on 19 August 2024
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KL’s evidence at the trial in the presence of the jury included:
“Q. Did you arrive on your own, or did you arrive with anyone else?
A. With someone else.
Q. Who?
A. No comment.
Q. I’m sorry?
A. No comment.
Q. No, you tell us, who did you arrive with?
A. No comment.
CROWN PROSECUTOR: Your Honour, could you direct the witness, please, to answer?
HIS HONOUR
Q. I direct you to answer the question that you’re being asked by the Prosecutor.
A. I respectfully pass.” [7]
7. Tcpt (19/8/24) p 1005.
…
“CROWN PROSECUTOR
Q. You arrived with EO, didn’t you?
A. No comment.
Q. You arrived with him after a bus trip, didn’t you?
A. No comment.
…
Q. Can you tell us the names of the people that you do remember being present?
A. No comment.
CROWN PROSECUTOR: Again, your Honour, would you direct the witness?
HIS HONOUR: Yes.
Q. I direct you to answer the question that’s been directed to you, the names of the other people at the house, please.
A. I respectfully pass.
…
CROWN PROSECUTOR
Q. Was there a man called Emmanual Deng or Emmanual Majak at the house by night-time?
A. No comment.
Q. Was there a young man by the name of Joshua Okot at the house by the time it was night?
A. No comment.
Q. Was there a young man by the name of Monzir Komei at the house by the time it was night?
A. No comment.
…
Q. Was EO at the house by the time it was night?
A. No comment.
Q. Was there a young man by the name of MM by the time that it was night-time?
A. No comment.” [8]
8. Tcpt (19/8/24) pp 1006-1007.
…
“Q. How long were you watching this other group at this time?
A. No comment.
Q. You’re at the front?
A. Mm-hmm.
Q. Where did you go to next? Are you able to remember?
A. No comment.
CROWN PROSECUTOR: I ask your Honour to direct the witness.
HIS HONOUR
Q. I require you to answer that question.
A. Respectfully not.” [9]
9. Tcpt (19/8/24) pp 1010-1011.
…
“Q. Did you see these other people again that night?
A. I object. Can I object?
CROWN PROSECUTOR: I’d ask your Honour to direct the witness.
HIS HONOUR: Yes.
Q. As you know, I’ve heard your objection, I’ve upheld it, and I’ve also formed the view it’s in the interest of justice that you answer the question.
A. Mm.
Q. And that you will be protected by a certificate, so the evidence can’t be used against you in any proceedings.
A. Mm.
Q. So, I direct you to the answer question.
A. No comment.” [10]
10. Tcpt (19/8/24) pp 1015-1016.
…
“Q. What do you remember about the knives that were being held?
A. No comment.
Q. Think about it. Think about how the knife - can you tell us how the knives were held?
A. No comment.
Q. Did you stay on the side of the gate that you’ve told us about or did you go somewhere else?
A. No comment.
CROWN PROSECUTOR: I ask your Honour to direct the witness.
HIS HONOUR
Q. I direct you to answer the question, KL.
A. No comment.
CROWN PROSECUTOR
Q. You went across the gate, didn’t you?
A. No comment.
Q. You went outside the property, didn’t you?
A. No comment.
Q. When you went outside, you had something in your hand, didn’t you?
A. No comment.
Q. It was a golf club, wasn’t it?
A. No comment.” [11]
11. Tcpt (19/8/24) pp 1017-1018.
…
“Q. Did you see Oliver Coleman get stabbed?
A. No comment.
Q. Have a think about it. Have a think. Did you see Oliver Coleman get stabbed?
A. (No verbal reply)
Q. Did you see Oliver Coleman get stabbed?
A. No comment.
CROWN PROSECUTOR: I’d ask your Honour to direct the witness.
HIS HONOUR
Q. I have to do it again. I direct you to answer the question.
A. No comment.
CROWN PROSECUTOR
Q. You see, you’ve told other people that you did in fact see him get stabbed?
A. No comment.” [12]
12. Tcpt (19/8/24) pp 1018-1019.
…
“Q. Are you prepared to tell us anything--
A. No.
Q. --of what happened around that house on 1 September 2021?
A. No.
CROWN PROSECUTOR: If your Honour would direct the witness again, please.
HIS HONOUR
Q. KL, again, I direct you to answer the prosecutor’s questions.
CROWN PROSECUTOR
Q. Will you answer my question?
A. No.
Q. Last question. When was the last time you saw Oliver Coleman alive?
A. No comment.” [13]
13. Tcpt (19/8/24) pp 1021-1022.
Prima facie evidence of contempt and alternative procedures
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It is well established that a refusal by a witness to answer questions when directed to by the presiding Judge may amount to a contempt “in the face of the Court”: see for example, R v Taber and Styman; Re Shannon v Styman [2005] NSWSC 1329, Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393, R v Qaumi & Ors (No 62) [2016] NSWSC 1215 and R v Coskun (No 4) [2022] NSWSC 696.
The requirement that the witness be warned of the consequences of refusing to answer questions
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It is also established that, generally, the witness should be warned before a charge of contempt is levelled against them.
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KL was aware that he was at peril of being charged with contempt. His evidence on the pre-trial hearing included:
“Q. I am requiring you to answer the question, and I am giving you a certificate to protect you from any use that that may have against you in criminal proceedings, but the situation is that I am telling you to answer the question, and a failure to do so can lead to prosecution for contempt. I’m not saying it will or won’t, but I’m just saying it can.
A. Mm.
Q. And I’d like you - I’d like to know that you’re fully advised by someone independent and representing your interests before I proceed further.
HIS HONOUR: Ms Fernando, I don’t know if you need time? I mean it’s half past 11.
FERNANDO: Your Honour, I have, the witness is advised of his rights and the consequences of--
HIS HONOUR: All right. Let’s continue then and we’ll see how we go.
Q. So you’ve given the answer ‘no comment’ to a number of the questions, like who the person in that video is and whether it’s you and whether you remember the incident. You’ve said ‘no comment’. That is not an answer. I’m requiring you to give an answer. Can you please do so?
A. No, I respectfully pass.
Q. Fair enough.
[PROSECUTOR]
Q. I’ll ask you again, that person there on the screen, 2 November 2021 at 57.02, who is that?
A. No comment, once again.” [14]
14. Tcpt (8/7/24) pp 175-176.
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A short time later, I gave KL the following advice or warning:
“Q. KL, thank you for your evidence today. I’m now going to adjourn to allow the officers to take you back to the juvenile justice place you’re at. You may be called back here to give evidence when we start the trial in front of the jury, or at some other time, so you’re not formally excused at this stage. There may also be some arguments about whether your psych report should be disclosed to the prosecutor. I’ll let Ms Fernando explain that to you. There may also be questions raised about whether or not some contempt charge should be preferred, but nothing will happen on that score until Ms Fernando has an opportunity to consider the position and make submissions.
A. Yep.
Q. So thank you. I am going to adjourn to allow things to happen. You just stay there for the moment.
”. [15]
15. Ibid at p 179.
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When KL gave evidence before the jury, he was reminded of the possibility that he may be “charged with or cited for contempt of court by refusing to follow the directions [given by the court]”. [16] This reminder was given after he had received advice from experienced counsel and had been warned twice during the pre-trial hearing of the possibility he would be charged with contempt.
16. Tcpt (19/8/24) p 1019.
Summary procedure vs referral to the Prothonotary
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It is open to a judge of this Court to deal summarily with a contempt committed in the face of the court: The King v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 241-243; [1951] HCA 3, Supreme Court Rules 1970 (NSW) Pt 55, Div 2 (“SCR”). However, it is generally accepted that the summary procedure should “rarely be resorted to”, [17] although, there are examples where the summary procedure was adopted: see for example In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141. In dealing with a contempt summarily, the trial Judge should orally charge the alleged contemnor and must allow for an adjournment to permit the alleged contemnor to put on a defence – SCR Pt 55, Div 2, r 3.
17. Keeley v Brooking (1979) 143 CLR 162 at 174; [1979] HCA 28.
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An alternative procedure is for a judge of this Court to direct the Prothonotary [18] to initiate proceedings for contempt pursuant to SCR Pt 55, Div 3, r 11(1): see, for example, Jane Doe 1 v Dowling [2017] NSWSC 57 and R v WE (No.15) [2020] NSWSC 332. Prior to making such a direction a judge of this Court may refer the issue to the Prothonotary to seek advice from the Crown Solicitor’s Office regarding whether such proceedings should be commenced or not. [19] Before referring a possible contempt to the Prothonotary, the alleged contemnor should be provided with an opportunity to demonstrate why such a referral should not be made. [20]
18. The Registrar of the Common Law Division of the Supreme Court of NSW: Supreme Court Act 1970 (NSW), s 119(2).
19. SCR Pt 55, Div 3, r 11(6) and see, for example, In the matter of the Compensation Court of NSW (Court of Appeal (NSW), 20 December 1985, unrep) and compare the hybrid procedure adopted in R v Qaumi & Ors (No 62) [2016] NSWSC 1215.
20. Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 469, cited in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [17].
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As I have observed, the summary procedure is generally considered to be “extraordinary and exceptional”: see European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, 456 per Kirby P (as he then was). The mischief in such a procedure is that the trial Judge becomes, or may be seen to be the victim, the star witness, the prosecutor, the arbiter of guilt, and the sentencer: cf European Asian Bank AG v Wentworth at 451 (Kirby P).
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In the circumstances of this case, the preferable course is to refer the matter to the Prothonotary. I was directly involved in the issues that arose when KL objected to giving evidence and when, unusually but understandably in the peculiar circumstances, his counsel made strong submissions that it was not in the interests of justice that KL be required to give evidence about the events of 1 September 2021, even with the protection of a certificate under s 128 of the Evidence Act. [21] It is not desirable that I be involved as a decision maker in any contempt proceedings beyond referring the matter to the Prothonotary.
21. Tcpt (19/8/24) p 1000.
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At the time of the possible contempt, none of the parties to the trial invited me to adopt the summary procedure and there was no suggestion of any urgency. Given the delays already occasioned in this trial, including a protracted pre-trial hearing which extended far beyond the initial estimates of counsel and involved my making hundreds of evidentiary rulings, I determined not to deal with the matter summarily which would have caused further delays in the trial.
Procedural fairness
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Where an inferior court is considering referring an alleged contemnor to this Court it is generally accepted that the requirements of procedural fairness dictate that the person to be so referred should be allowed the opportunity to be heard in opposition to such a referral: see, for example, Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 (“Dangerfield”). The judgment in Dangerfield contemplates that the requirements of procedural fairness may be different in the case of a superior court, and specifically this Court.
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Nevertheless, given the complexities of KL’s situation, which arise from the somewhat uncertain state of his own murder case, I have concluded it is appropriate to provide him the opportunity to be heard.
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Accordingly, KL will have the opportunity to make submissions against such a referral.
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Having reached that conclusion, my associate liaised with the solicitor and barrister who represent KL and the matter has been listed on Thursday 19 September 2024 to afford KL the opportunity to be heard on the issue of referral. The lawyers indicated a preference for KL to appear by audio visual link from the juvenile justice centre in which he is currently held.
Orders and directions
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Accordingly, I make the following orders and directions:
KL and his solicitors to be advised that I am inclined to refer the matter to the Prothonotary to institute proceedings for contempt.
KL is directed to appear before the Court at 2:00pm on 19 September 2024 to provide submissions as to why the matter should not be so referred.
KL is to appear by audio visual link and I direct the Registrar to make the appropriate arrangements for that to occur.
**********
Endnotes
Decision last updated: 08 November 2024
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