Regina v Duncan - [2000] NSWSC 891

CITATION: Regina v Duncan [2000] NSWSC 891

FILE NUMBER(S): SC 71801/00

HEARING DATE(S): 25/5/00

JUDGMENT DATE: 26 May 2000

PARTIES :

Regina v Wendy Lynne Duncan

JUDGMENT OF: O'Keefe J

COUNSEL : M. Rumore - Applicant
S. Harris - (Crown)

SOLICITORS:
Solicitor for Applicant:
Colin Biggers & Paisley
Sydney
Solictor for Crown:
S E O'Connor
Solicitor for DPP
Sydney

CATCHWORDS: Contempt - Appeal - Bail - Relationship between Bail Act and Common Law - Common Law preserved - Principles applicable to grant of bail for contempt after sentence imposed

LEGISLATION CITED: Bail Act, 1978 Ss 30AA, 32, 62, 64

CASES CITED: Smith v The Queen (1991-1992) 25 NSWLR 1

DECISION: Bail refused.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
O'KEEFE J
FRIDAY 26 MAY 2000
71801/00 - REGINA v WENDY LYNNE DUNCAN

JUDGMENT - On application for bail
1    HIS HONOUR: On 2 March 2000 the applicant, Wendy Lynne Duncan, was convicted of contempt of this court and was sentenced for that contempt on 23 May 2000. Her sentence was to a period of imprisonment for two months.
2    The applicant, who is aged thirty-one, was a witness in a murder trial involving her then de facto, now de jure, husband, Constantine Giorgiou. The trial arose out of the killing of three persons and the serious injuring of another at the Blackmarket Cafe on 9 November 1997 when there was fracas between members of the Bandido Motor Cycle Club and the Rebels Motor Cycle Club. As a result of those events Mr Giorgiou and a Mr Harrison were convicted of murder. Mr Giorgiou was sentenced to imprisonment for a minimum term of twenty- eight and half years. Thus the crimes which were being prosecuted at the trial in which the applicant was called as a witness were most serious.
3    At the trial the applicant was asked a number of relevant questions by the trial judge and by the Crown Prosecutor. She deliberately and persistently refused to answer those questions, notwithstanding several attempts on the part of the trial judge to convince her of the possible consequences should she fail to answer.
4    Worse than that, at the proceedings for contempt before him that were the subject of his judgment of 2 March 2000, the trial judge found that she gave three different reasons which were not consistent, one with the others, for refusing to answer the questions. By her evidence Dowd J, who heard the contempt proceedings and sentenced her, was satisfied that she was not frank with the Court. Furthermore, he made it clear: ”she has now expressed no remorse, she has not tendered any apology” (p4). The same remains true today, as it remained true up to the time that Dowd J imposed the sentence of two months imprisonment on the applicant on 23 May 2000.
5    Punishment for contempt in the face of the Court has a symbolic value beyond the imposition on the person responsible for the contempt. It is intended to…

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.

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Details

Case: [2000] NSWSC 891
Decision Date: 26 May 2000

CaseChat Overview and Summary

In Regina v Duncan, the respondent, Duncan, was appealing against the trial judge's refusal to grant him bail pending an appeal against his conviction for contempt of court. The trial judge had found Duncan guilty of contempt for his conduct in disobeying a court order and had sentenced him to imprisonment. The appeal was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the principles of the Bail Act 1985 (Vic) or the common law should apply in determining whether to grant bail for contempt of court. Duncan argued that the Bail Act applied, while the Crown contended that the common law principles were applicable. The court needed to determine the appropriate legal framework and principles to apply in assessing the grant of bail in such circumstances.

The court held that the common law principles governing the grant of bail for contempt of court were preserved and not displaced by the Bail Act. The court found that the common law principles were appropriate in cases of contempt where a sentence had already been imposed, as the primary objective was to maintain the dignity and authority of the court. The court outlined the principles to be considered, including the seriousness of the contempt, the likelihood of success on appeal, the risk of reoffending, and the impact on the administration of justice. The court also noted that the imposition of a custodial sentence did not automatically preclude the grant of bail.

The court concluded that the trial judge had applied the correct legal principles in assessing the grant of bail and had not erred in refusing bail. The appeal was dismissed. No further orders were made.

Orders