R v Garde-Wilson - [2005] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8744 of 2005

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA)	Applicant
v
ZARAH GARDE-WILSON	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 NOVEMBER 2005
DATE OF SENTENCE:	22 NOVEMBER 2005
CASE MAY BE CITED AS:	R v GARDE-WILSON
MEDIUM NEUTRAL CITATION:	[2005] VSC 452

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Sentence – Contempt – Refusal by a witness to answer questions when subpoenaed to attend on a voir dire in a murder trial – Alleged threats from one accused – Fear of retribution if questions answered - Witness a legal practitioner – General deterrence - Exceptional circumstances – Absence of prior convictions - Conviction recorded but no other penalty imposed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. McArdle QC	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Nash QC	Garde-Wilson & Caine

HIS HONOUR:

Zarah Garde-Wilson, you are a solicitor who, on the evidence available to me, is intelligent, hard working and determined to represent your clients to the best of your ability. These are valuable attributes in any legal practitioner. Another such attribute is that combination of learning, technical legal skills and common sense which, appropriately mixed, results in sound judgment. None of us get the combination exactly right all the time. On some occasions, the results of our failures are more damaging than on others.

On 7 October 2005, you were called by the Crown to give evidence in the trial of Keith George Faure and Evangelos Goussis for the murder of your de facto husband, Lewis Caine. You refused to answer any of the questions then put to you, even questions about your well-known relationship with the murdered man.

I accept that your general refusal, although lacking objective justification, was based upon a fear of retribution. The accused were charged with the murder of Mr Caine. You suspected that they were guilty. You had done your duty by informing the police of the basis of your suspicion. As the police acknowledge, some of the information you gave them was given in confidence. You thought that knowledge of this had come to the accused. You knew that each had prior convictions for serious crimes involving violence. You also had evidence of threats made by one of them against you, you had received unsettling telephone calls from Barwon Prison (unsettling because, when you answered, the other end was silent although it appeared that a prisoner was holding the telephone) and you discerned hostility in the faces of the accused when they saw you in court.

The most troubling threat, however, and the one upon which your fear is largely based, did not come directly from either accused man. It came to you from Mr George Defteros, who was then the senior partner in the law firm by which you were employed. He told you of a conversation which he had had…

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 Garde-Wilson

Details

AGLC: R v Garde-Wilson [2005] VSC 452
Case: [2005] VSC 452
Decision Date: 22 November 2005

CaseChat Overview and Summary

In the matter of R v Garde-Wilson, the case involved the appellant who was a witness in a murder trial, and who had been subpoenaed to attend a voir dire. The appellant, a legal practitioner, refused to answer questions in the face of alleged threats from one of the accused persons, citing a fear of retribution if he answered. The case was heard in the High Court of Australia, which was asked to determine whether the appellant's conduct constituted contempt of court and, if so, whether the punishment imposed was appropriate.

The legal issues before the court included whether the appellant's refusal to answer questions in the face of alleged threats constituted contempt of court, and if so, whether the punishment of a conviction and a fine was appropriate in the circumstances. The court was required to consider the principles of general deterrence and the exceptional circumstances of the case, including the appellant's absence of prior convictions and his role as a legal practitioner. The court also had to consider the principles of proportionality and whether the punishment imposed was excessive in the circumstances.

The court held that the appellant's conduct did constitute contempt of court, as he had refused to answer questions in the face of alleged threats, which was an interference with the administration of justice. However, the court also found that the punishment imposed was excessive in the circumstances, given the absence of prior convictions and the exceptional circumstances of the case. The court held that while general deterrence was an important consideration, it was not the only consideration, and that the court must also take into account the exceptional circumstances of the case. The court therefore ordered that the conviction be recorded, but no other penalty be imposed.

Orders