R v Guariglia

[2000] VSC 45

SUPREME COURT OF VICTORIA

  CRIMINAL DIVISION

Not Restricted

No. 7207 of 1999

THE QUEEN	Appellant
V
GEOFFREY GUARIGLIA	Respondent

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2000
DATE OF JUDGMENT:	14 February 2000
CASE MAY BE CITED AS:	R v Guariglia
MEDIA NEUTRAL CITATION:	[2000] VSC 45

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.P. Brett	Victorian Government Solicitors
For the Respondent	Mr G. Mullaly	Stary George Myall

1. HIS HONOUR:  I find that the respondent, Geoffrey Guariglia, is guilty of contempt of court on each of the two counts alleged in the motion.  I publish my reasons.

1. [His Honour heard counsel on the question of penalty.]

1. The first count arises from his refusal to answer six questions on the Basha inquiry as a preliminary part of the trial of two persons charged with murder.  The second count arises from his refusal to be sworn before the jury on the trial.  I will not go through the circumstances leading up to these charges as they are already indicated in my judgment on the question of conviction.

1. A circumstance, however, that I should highlight is the respondent before the court had been acquitted of the charge of murder at a separate trial a few days previously.  The Crown originally said that Mr Guariglia was criminally involved in the commission of the murder with the two men standing charged.  But given the finding of the jury in the first trial that allegation cannot now stand.  Nevertheless, it does appear that the three men were together at least on the day that the two men, as the jury ultimately found, murdered the deceased.

1. The question that now arises is to the appropriate penalty or punishment that should be imposed upon Mr Guariglia for his two contempts.  A number of matters have been urged before me as relevant to the circumstances and I shall mention each briefly and my views upon them.

1. The first is the seriousness of the offence.  The subject matter of the trial was murder.  This is, of course, one of the most, if not the most serious offence known to the criminal calendar.  Therefore the fact that his contempt was committed in the circumstances of such a trial weigh heavily in the balance.

1. Secondly, my perception of the whole of the evidence is that the present respondent determined at an early stage that he was not going to assist the prosecution in the trial of the two men.  There has been much said of the confusion that attended the questioning at the Basha inquiry.  Examination, however, of the whole of the circumstances lends support for the conclusion I have expressed. 

1. The respondent was sworn and made a couple of very unconvincing answers which were certainly inconsistent with the overwhelming evidence that was available to the Crown as to his familiarity or knowledge of the two co-accused.  Having then given some evidence-in-chief it is apparent that he had the advice of senior counsel who apparently spoke to him, or at least had the opportunity of doing so, when the matter was stood down.  Moreover, he was represented by a solicitor who was permitted to and did in fact take a part in the proceeding.  The statement of the solicitor before the cross-examination commenced indicated a determination by the respondent not to answer any questions.

1. I reject, therefore, the suggestion that his refusal to answer was the result of any confusion in his mind as to the rights and wrongs of the situation.  This is confirmed further by the fact that the judge later brought him back and invited him to answer the questions and he refused yet again.

1. The conclusion, therefore, I reach is that the respondent before the court today made at a relatively early stage of his evidence a decision not to co-operate with the prosecution and that this was the moving spirit behind his refusal to answer the questions constituting the first charge and, of course, his refusal to be sworn before the jury.

1. It is said that these refusals were motivated by fear and that his fear was well-founded.  The two men who were charged with the murder were described before me as "violent and dangerous men" and men who were known or at least believed by the respondent to be capable of carrying out threats against his health or even his life while in prison.  That is a factor which I have regard to.  But it often happens in the courts, particularly in the criminal courts, that the plain duty of citizens is to give evidence and co-operate with the justice system, notwithstanding inconvenience and even danger to themselves.

1. So I weigh the fear of the respondent, which I accept existed as a motive, on the one hand, against the powerful incentive which the law must impose upon every citizen to give evidence when called upon to do so, on the other.

1. I reject the suggestion there has been remorse shown by the respondent.  It may be said he regrets finding himself in this position and very much apprehends that the consequence may well be to increase his period of imprisonment, but I do not, on the material, find remorse.

1. It is said, too, his plea of guilty to the second offence should be brought to account, perhaps as indicating remorse. Whether or not I am obliged to have regard to the plea of guilty to the second offence is a matter of debate. Given the uncertain application of the Sentencing Act I will have regard to his admission of the second charge. I also have regard to the fact that really it is difficult to imagine what defence there was to that second offence. In short, he had little practical option.

1. I have regard too to the respondent's low IQ as appears in the report of Mr Cummins.  In the present case, however, this has little role to play.  He resolved not to answer the questions and to be sworn and he adhered to that resolve. 

1. I have had no regard to the respondent's criminal history which is, to my mind, not relevant to the present matter.

1. My concern above all is to ensure that citizens who are called to give evidence must co-operate with the court.  The court's function, particularly in the administration of criminal law, is an important one in society, and the criminal law and the justice system cannot be held to ransom by the fears of witnesses, however well-founded be those fears.

1. To my mind the offences which have been committed are serious and warrant a custodial sentence.  I have considered anxiously what has been said on behalf of Mr Guariglia and I have looked briefly at the list which has been offered by way of comparable sentences.

1. I consider that the appropriate punishment is as follows:

1. On the first count, which in one sense is less serious than the second, a period of six months' imprisonment.  On the second count a period of nine months' imprisonment, such counts to be served concurrently.

1. I direct that the sentences hereby imposed be served cumulatively upon the sentence that he is now presently undergoing.

1. The question of costs is not pressed on behalf of the applicant, accordingly there will be no order for costs.

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