R v E Sleiman (Judgment No 29)

[1999] NSWSC 858

CITATION:	R v E Sleiman (Judgment No 29) [1999] NSWSC 858
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70216/98
HEARING DATE(S):	09/04/99; 09/07/99
JUDGMENT DATE:	27 August 1999
PARTIES :	Regina v Emad Sleiman
JUDGMENT OF:	Sperling J

COUNSEL :	For Crown: M L Barr For Prisoner Emad Sleiman: K G Horler AM QC
SOLICITORS:	For Crown: F Gray (DPP NSW) For Prisoner Emad Sleiman: Ross Hill & Associates
CATCHWORDS:	Contempt in the face of the court - threat to a witness - whether Pt 55, Div 2, applies where conduct not observed by trial judge.
ACTS CITED:	Supreme Court Rules, Pt 55
CASES CITED:	European Asia Bank AG v Wentworth (1986) 5 NSWLR 445, Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669, Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682, Fraser v The Queen [1984] 3 NSWLR 212
DECISION:	Guilty of contempt as charged.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J

Friday 27 August 1999

No 70216/98 Regina v Emad Sleiman

JUDGMENT NO 29

HIS HONOUR:
1    This judgment arises out of an incident which is alleged to have occurred in the course of the trial.

2    On 7 April 1999, Mr Stacey, who I would regard as having been the principal witness in the Crown case, was giving evidence. The incident is alleged to have occurred at approximately 1.15 pm on that day, when Mr Stacey was leaving the courtroom for the luncheon adjournment. Mr Stacey was a protected witness. In view of that, a procedure had been adopted whereby, at an adjournment, the jury left the courtroom first, then Mr Stacey and then Mr Sleiman.

3    It is necessary to describe certain features of the courtroom. The courtroom is large. The dock is situated in the centre of the courtroom. It is elevated. To the judge’s right of the dock there is a tier of seating accommodation which is also elevated. Witnesses left the courtroom at adjournments by passing between the dock and the tier of seating. The closest seating in the tier is about five feet from the dock. Because the dock and the seating are elevated, a person passing between the dock and the seating would have his head at about the same height as a person seated in the dock or at the front of the tier of seating.

4    Mr Sleiman’s counsel and his solicitor occupied the same positions at the bar table throughout the trial. The solicitor sat at the end of the bar table with his back to the dock and hard up against it. Counsel sat at the side of bar table on the judge’s right and at the extreme end of that side of the bar table, with the corner of the bar table between counsel and the solicitor. Mr Sleiman was seated above them and was separated from them by the wooden front wall of the dock and a desk-like structure attached to the front of the dock.

5    Following the alleged incident, the following events occurred. A charge of contempt was formulated. A statement by Mr Stacey was tendered. A statement by a court security officer, Mr Austen, was tendered. Mr Austen was cross-examined. Mr Sleiman’s solicitor gave oral evidence. Counsel made a statement from the bar table concerning the alleged incident. It was agreed that the evidence was closed. The Crown Prosecutor and counsel for Mr Sleiman made submissions. I reserved my decision.

6    The charge, as formulated by the Crown Prosecutor, was as follows:

“CHARGE: On 7 April 1999 Emad Sleiman did commit a contempt in the face of the court, the particulars of which are as follows:
About 1:15pm proceedings against Emad Sleiman were adjourned. The witness Adam Stacey was stood down until 9 April 1999. Adam Stacey walked from the witness box towards the back of the court at the time Emad Sleiman was in the dock.
As Adam Stacey was passing Emad Sleiman, Emad Sleiman put his left hand across his face and said in a threatening manner ‘you’re fucked’ or words very similar.
At such time Emad Sleiman knew that Adam Stacey had given evidence for the prosecution in the case against him, and that Emad Sleiman knew that Adam Stacey had not yet completed his evidence”.

7    The following is an extract from Mr Stacey’s statement, tendered in evidence:

“About 1.15pm I had completed giving evidence and I was walking from the witness box towards the back of the court. As I was passing Emad Sleiman I saw him put up his left hand across his face and he said to me ‘You’re fucked’ or something very similar. When he said this to me I took this as being a threat. It may (sic) me feel intimated that he did this in the courtroom.”

Mr Stacey was not cross-examined on his statement. However, the proceedings were conducted on the basis that his evidence was strenuously disputed, and I proceed on that basis.

8    The following is an extract from Mr Austen’s statement, tendered in evidence:

“I saw the witness Stacey excused from the witness box. He left the witness box and walked beside the dock area where the accused were sitting. When Stacey drew level to Sleiman in the dock I saw Sleiman put his left thumb across the side of his nose and his fingers covering his face. He spoke three to four words to Stacey which sounded threatening. The words were similar to ‘Fuck you or you are fucked’. … When this occurred I was about 5 feet away from where Sleiman was in the dock.”

Mr Austen was cross-examined. His account was challenged. Under cross-examination, he said that the distance between Mr Sleiman and himself at the time of the episode was about five and a half feet. He conceded that Mr Sleiman’s counsel and solicitor were both closer than he was to Mr Sleiman at the relevant time. He also conceded that the solicitor would have been in a better position than he was to hear anything Mr Sleiman may have said at the relevant time.

9    Mr Sleiman’s counsel stated from the bar table that neither he nor the solicitor heard Mr Sleiman utter the words attributed to him by Mr Stacey and Mr Austen. I accept that statement without reservation.

10    Mr Sleiman’s solicitor was called to give oral evidence. Asked whether he heard the alleged words being uttered, he replied, “No, I don’t (sic), I may have been speaking with Mr Horler but I don’t recall it.”

11    I apply the criminal standard of proof. I accept the evidence of Mr Stacey and Mr Austen. I am satisfied beyond reasonable doubt that Mr Sleiman uttered the words “You are fucked” or “You’re fucked” in a threatening tone of voice, shielding his face with his hand at the time. There is a significant difference between the import of an expletive such as “fuck you” and a threat such as “you’re fucked”. I mean to find explicitly that the words uttered were the latter.

12    I do not agree with Mr Austen’s opinion that Mr Sleiman’s counsel and solicitor were in a better position than he was to hear anything that may have been said by Mr Sleiman to Mr Stacey as Mr Stacey walked between Mr Sleiman and Mr Austen. First, according to the evidence of Mr Stacey and Mr Austen, the words would have been spoken to Mr Sleiman’s left and in the direction of Mr Austen as Mr Stacey passed between the two men, rather than forward in the direction of counsel and solicitor. Secondly, the heads of Mr Sleiman, Mr Austen and Mr Stacey, as Mr Stacey passed between the other two, would have been at about the same level, whereas counsel and solicitor were seated at a lower level. Thirdly, according to Mr Stacey and Mr Austen, Mr Sleiman was shielding his face with his hand, presenting a barrier in the direction of counsel and solicitor but not in the direction of Mr Stacey and Mr Austen. Fourthly, counsel and solicitor were shielded from Mr Sleiman by the barrier of the solid woodwork at the front of the dock to which I have referred. Fifthly, as the solicitor suggested in his evidence, counsel and solicitor may have been talking between themselves at the time, or they might have been otherwise preoccupied.

13    For these reasons, I think it is entirely consistent that the words were uttered as alleged and that counsel and solicitor did not hear them. Neither did I, but I was a considerable distance away, and I have no reason to think that my attention was directed to that part of the courtroom at the time. I do not think there is any inconsistency between the evidence of Mr Stacey and Mr Austen, on the one hand, and my not having observed the incident, on the other.

14    What occurred constitutes a contempt of court. In European Asia BankAG v Wentworth (1986) 5 NSWLR 445 at 450, Kirby P said:

“There is no doubt that it is a serious contempt to interfere with a witness by words or actions, in such a way as to diminish or question the privilege of the witness to give evidence to a court without fear or favour. The courts have repeatedly stressed that they will preserve the freedom and integrity of witnesses. They will not allow them to be intimidated from giving their evidence either before a trial, at the hearing or after the trial is concluded…”

In Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669 at 1670, Denning MR said:

“The court will always preserve the freedom and integrity of witnesses and not allow them to be intimidated in any way, either before the trial, pending it or after it…it is also a contempt of court to threaten him or put him in fear; if it is done so as to punish him for what he has said”.

15 A procedural question arises. Pt 55, Contempt of the Supreme Court rules, includes Division 2, Contempt in the face or hearing of the court, and Division 3, Motion or proceedings for punishment.

16    Division 2 provides for a trial judge to deal with a question of contempt without procedural formality. Division 3 provides for a question of contempt to be dealt with by motion on notice. Division 2 is predicated upon a contempt having occurred in the face or hearing of the court. The authorities deal with whether that means the judge must himself or herself have observed the conduct in question. In Registrar, Court of Appeal vCollins [1982] 1 NSWLR 682, Moffitt P (with whom Street CJ and Hope JA agreed) said (at 707) that contempt in the face of the court may include conduct which takes place outside the court room, necessarily implying that the conduct in question does not have to be observed by the judge in order to constitute contempt in the face of the court. However, in Fraser v The Queen [1984] 3 NSWLR 212, Kirby P and McHugh JA, in a joint judgment, doubted the correctness of the decision in Collins on this point. Mahoney JA dissented. The point remains unsettled. In European Asia Bank, Priestley JA said (at 463):

“It is obviously desirable that the point be settled one way or the other as soon as may be. Until the question is settled I find it difficult to see that any judge confronted with the question at first instance could be criticised for adopting either view”.

The proceedings in relation to the alleged contempt have been conducted without procedural formality, conformably with Division 2. There was no objection to this course. In particular, there was no point taken that the charge should be brought by motion on notice. I proceed pursuant to Division 2.

17    Having regard to the findings I have made and the authorities to which I have referred, I find Mr Sleiman guilty of contempt as charged.

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Last Modified: 08/30/1999