Stanley v Tasmania
[2015] TASCCA 24
•7 December 2015
[2015] TASCCA 24
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Stanley v Tasmania [2015] TASCCA 24
PARTIES: STANLEY, Christopher Stephen
v
THE STATE OF TASMANIA
FILE NO: CCA 253/2014
DELIVERED ON: 7 December 2015
DELIVERED AT: Hobart
HEARING DATE: 26 May 2015
JUDGMENT OF: Tennent, Porter and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Power to substitute verdict or sentence – Other particular cases – Appellant convicted of contempt by refusing to give evidence in a criminal trial – Assertion sentencing judge erred by failing to adopt correct procedure and failing to inform himself about matters relevant to the exercise of his sentencing discretion and that in any event sentence manifestly excessive – Determination that other sentence not warranted in law despite finding errors made in process adopted by sentencing judge.
Aust Dig Criminal Law [3549]
REPRESENTATION:
Counsel:
Appellant: K Edwards
Respondent: J Hartnett
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 24
Number of paragraphs: 33
Serial No 24/2015
File No CCA 253/2014
CHRISTOPHER STEPHEN STANLEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
PEARCE J
7 December 2015
Order of the Court (26 May 2015):
Appeal dismissed.
Serial No 24/2015
File No CCA 253/2014
CHRISTOPHER STEPHEN STANLEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
7 December 2015
The appellant was charged with and convicted of contempt of Court by the learned Chief Justice on 21 March 2014. He was sentenced to serve a period of six months' imprisonment which sentence was to be served cumulatively to any sentence already being served. On 3 April 2014, a notice of appeal was filed in respect of the sentence imposed.
The appeal was heard with amended grounds on 26 May 2015. The appeal was dismissed on the day, with reasons to follow. These are my reasons for joining in the order dismissing the appeal.
By way of background, the appellant was charged on complaint with one count of aggravated armed robbery. He was charged jointly with Elias Maffeking Kefalianos. The allegation was that they entered the Ridgely Roadhouse on 13 January 2013 armed with a firearm and stole property, in the process threatening staff. The State subsequently filed an indictment in respect of the appellant and, on 29 May 2013, he pleaded guilty. He was sentenced to two years imprisonment with a non-parole period of 12 months. On appeal, that sentence was increased to three years with a non-parole period of 18 months. That order was made on 8 October 2013. One of the judges on that appeal was the Chief Justice.
On 19 March 2014, the trial of Mr Kefalianos commenced before the Chief Justice and the appellant was called to give evidence. He refused to do so and, as a consequence, was charged with contempt. It is the process undertaken by the Chief Justice in dealing with the appellant for contempt which underpinned this appeal.
Grounds of appeal
The grounds of appeal ultimately pursued were in the following terms:
"1THAT His Honour, Chief Justice Blow, failed to inform himself of any and/or all material relevant to the exercise of his sentencing discretion; and
2THAT as a consequence of Ground 1, and in all the circumstances, the sentence was manifestly excessive; and
3THAT His Honour, Chief Justice Blow, erred by failing to put the witness on notice that he was entitled to show cause as to why he should not be found in contempt of court."
Proceedings before the Chief Justice
Immediately after lunch on 21 March 2014, the Chief Justice was told in the absence of the jury that it was proposed to question the appellant briefly in the absence of the jury about what he intended to do as fare as giving evidence on the trial was concerned. Counsel for the State advised his Honour that he was aware the appellant had received some legal advice about his options in relation to giving evidence. The appellant was then brought into court and the following exchange occurred:
"HIS HONOUR: Mr Stanley you're going to be asked to give evidence on this trial and you're going to be given one choice whether to swear an oath on the bible or make an affirmation. Are you prepared to make that choice? You shake your head. Are you willing to give evidence in this trial at all? You shake your head. I want to make this clear. The law requires you to give evidence and the first step is either to swear an oath or make an affirmation. If you refuse I'll charge you with contempt of court. If I have to deal with you for contempt of court I'll give you a prison sentence that's additional to the one you're already serving. Well, I don't know how many you've got on – over you at the moment but it will be a cumulative prison sentence. Now I don't like doing that but that's what I will have to do if you don't give evidence. Does that make any difference to you?
MR STANLEY: Nuh.
HIS HONOUR: You shake your head. We're going to have to do this in front of the jury. We're going to have to begin this in front of the jury. I'll get the jury in, I'll ask you whether you're prepared to swear – whether you wish to swear an oath or make an affirmation. If you continue to just shake your head or not cooperate I'll charge you with contempt and send the jury to the jury room. Okay. You nodded your head. All right bring the jury in."
The jury was then brought into court and the following exchange occurred:
"HIS HONOUR: Mr Dennison would you tell the jury the name of the gentleman in the witness box?
MR DENNISON: The name of the gentleman in the witness box is Christopher Stephen Stanley your Honour.
HIS HONOUR: Thank you. Mr Luttrell would you ask this witness the usual question?
MR STANLEY: Neither.
HIS HONOUR: Mr Stanley, I'll give you one more chance, if you refuse to do either then I'll charge you with contempt of court. Do you wish to swear an oath? You shake your head. Do you wish to make an affirmation?
MR STANLEY: Nuh.
HIS HONOUR: No? All right I'll charge you with contempt of court for refusing to swear an oath or make an affirmation. Ladies and gentlemen would you go back to the jury room please?"
The jury was then sent back to the jury room. The appellant remained in court and the following exchange occurred:
"HIS HONOUR: Mr Stanley is there anything you wish to say?
MR STANLEY: Nuh.
HIS HONOUR: All right, well look I'm aware of your history and your background. This is a serious charge. I sentence you to six months imprisonment cumulatively with all other sentences. Take Mr Stanley away please. Bring the jury back."
Power of a judge to deal with a contempt in the face of the Court
The Criminal Code Act 1924, s 10, provides that nothing in the Act shall affect the authority of courts of record to punish a person summarily for the offence commonly known as "contempt of court". Further the Supreme Court Rules 2000 ("the Rules"), r 941, provides that:
"941 Contempt in face of Court
(1) If it is alleged or appears to the Court that a person is guilty of contempt of court committed in the face of the Court, the Court may –
(a) by oral order, direct that the respondent be arrested and brought before the Court; or
(b) issue a warrant for the arrest of the respondent.
(2) If the respondent is brought before the Court, the Court is to –
(a) inform the respondent of the contempt charged; and
(b) require the respondent to defend the charge; and
(c) determine the matter of the charge after having heard the respondent; and
(d) if it finds the respondent guilty of contempt, make any order for the punishment or discharge of the respondent as may be just.
(3) The respondent is to be detained in custody until the charge is disposed of, unless the Court grants bail."
The Rules, r 942, provides for the manner in which a contempt other than one in the face of the Court is to be dealt with. It is clear from that rule that different and more complex procedures are laid down which require a written application and notice of it to be served.
Counsel for the appellant and the respondent to the appeal referred to authorities and neither cavilled with the principles outlined by the other. For the appellant it was submitted:
"23 In the case of R v K(B) (1995)129 DLR (4th) 500, which has subsequently been followed in Jenkins v Trigg[2013] NTSC 04 at 27, a witness had refused to give evidence and then swore at the judge. It was stated by Lamer CJC, at 508:-
'There is no doubt in my mind that he was amply justified in initiating the summary contempt procedures. I, however, find no justification for foregoing the usual steps, required by natural justice, of putting the witness on notice that he or she must show cause why they would not be found in contempt of Court, followed by an adjournment, which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to be represented by counsel. In addition, upon a finding of contempt there should be an opportunity to have representations as to what should be an appropriate sentence. This was not done and there was no need to forego all of these steps.'"
For the respondent it was submitted:
"3In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314, Kirby P stated:
'A conviction of contempt of Court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the Courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams [1935] HCA 34. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or "excessive fines".'
4 Those comments represent the principles applied and are well established. (Endorsed in Martin v Trustram (No 3) [2003] TASSC 80 per Slicer J: Principal Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183.)"
Discussion
The Chief Justice was informed that the appellant had had legal advice about his options in relation to giving evidence. While there was no detail provided as to the advice he actually received, his counsel accepted it was a fair assumption he had been told what the consequences for him might be were he to refuse to give evidence and thereby commit a contempt. The appellant was then asked if he would be prepared to swear an oath on the bible or make an affirmation. His Honour recorded that the appellant shook his head, I infer, indicating no. His Honour then made it absolutely clear to the appellant that he had an obligation to give evidence, and that if he did not do so he would be charged with contempt and he would face an additional prison sentence in relation to that. The appellant was asked if that information made any difference to his position and he responded "Nuh".
His Honour then told the appellant the jury would be brought back in and he would be asked in the presence of the jury whether he would swear an oath or make an affirmation. He was told that if he continued to just shake his head or not co-operate, he would be charged with contempt and the matter would be dealt with. The appellant's response was simply a nodding of his head. The jury returned, counsel for the State identified the witness as the appellant and the court attendant asked the appellant whether he wished to swear an oath or make an affirmation. The appellant responded, "Neither". His Honour then tried again and asked the appellant if he would swear an oath or make an affirmation. The appellant said, "Nuh", and was immediately charged with contempt.
Ground 3 of the amended notice of appeal asserted that the Chief Justice failed to put the appellant on notice that he was entitled to show cause why he should not be dealt with for contempt. Ground 1 asserted that the Chief Justice failed to inform himself of matters relevant to the exercise of his sentencing discretion.
On the face of ground 3, it appeared to be an appeal against the finding of guilt. During the hearing of the appeal, Porter J raised this issue with counsel for the appellant. Counsel for the appellant expressly disavowed reliance on the ground for that purpose, accepting that, as a stand-alone ground of appeal, even if made out, it was unlikely to result in a finding that there had been a miscarriage of justice. Counsel accepted that ground 3 should more properly be dealt with as part of ground 1, and had remained in the notice of appeal to demonstrate the speed with which the Chief Justice had acted on the day.
Both grounds 1 and 3, it might be said, reflect the speed with which his Honour dealt with the contempt matter. There can be no dispute that his Honour did not formally tell the appellant that he could show cause in relation to the contempt. While that assertion was a separate ground of appeal, it really formed part of the general complaint articulated by ground 1 that the Chief Justice did not take the time to fully explain the process to the appellant and elicit more information from him relevant to the exercise of the sentencing discretion. I have, given the concession by counsel for the appellant, dealt with grounds 1 and 3 together.
As to ground 1, the only enquiry made by his Honour for the purpose of eliciting information which might have been relevant to the exercise of a sentencing discretion is set out in [8] of these reasons. His Honour did not pursue the matter beyond that. However, less than six months before, his Honour had dealt with an appeal by the appellant against a sentence. It is an inescapable inference to be drawn from that that he was then provided with detail about the appellant's personal circumstances and matters relevant to the exercise of a sentencing discretion. His Honour actually said, "I'm aware of your history and your background". However, it was not apparent, from what his Honour said, just what material he was referring to. The appellant certainly could not have known what information the Chief Justice was relying on for the purpose of sentence, and it was not obvious to this Court.
The appellant was generally unco-operative. He was asked if there was anything he wished to say and he continued, in response to that, his lack of cooperation. However, in my view, there was an obligation on the Chief Justice to take some transparent step to inform himself of matters relevant to the exercise of a sentencing discretion, for example, such as delaying the sentence for a period to enable material to be obtained, or perhaps articulating the information upon which he was relying. I accept that persisting in making enquiries of the appellant was unlikely to have produced anything useful at the time. The expectation this type of matter should be dealt with expeditiously should not necessarily override such considerations. In my view, ground 1 is made out. Insofar as ground 3 needs to be dealt with separately given my earlier comments, it is also made out.
Ground 2
The question remains whether as a consequence of the conclusion in the foregoing paragraph, and in all the circumstances of the case, the sentence imposed by the Chief Justice was manifestly excessive. I am not satisfied that it was.
Counsel for the appellant submitted that his Honour should have delayed sentencing the appellant until at least the conclusion of the trial. That would have allowed his Honour to have a clearer picture of the impact on the trial of the appellant's refusal to give evidence. That impact, as it ultimately turned out, was ameliorated by a successful application by reference to the Evidence Act 2001, s 65, in relation to an interview conducted between the appellant and police. That application was made immediately after the appellant was dealt with for contempt. Counsel submitted that because his Honour proceeded as he did, he only took into account the obvious refusal to give evidence and its immediate impact, and did not take into account any mitigating factors such as the reasons for refusal.
It was accepted by counsel for the appellant that the refusal to give evidence in itself amounted to a serious contempt, and that any sentence should have an appropriate deterrent effect. Counsel submitted however that his Honour should have had regard to the factors identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. Dunford J there listed 10 relevant factors. They were:
"1 the seriousness of the contempt proved;
2 whether the contemnor was aware of the consequences to himself of what he did;
3 the actual consequences of the contempt on the relevant trial or inquiry;
4 whether the contempt was committed in the context of serious crime;
5 the reason for the contempt;
6whether the contemnor has received any benefit by indicating an intention to give evidence;
7 whether there has been any apology or public expression of contrition;
8 the character and antecedents of the contemnor;
9 general and personal deterrence; and
10 denunciation of the contempt."
Ultimately, it was the submission of counsel for the appellant that a term of imprisonment was justified for the contempt committed, but that the length of the sentence actually imposed was not. The sentence, had it been informed by mitigating factors such as the eventual impact of the appellant's contempt upon the trial, the reasons for the refusal to give evidence and the appellant's personal circumstances, would have been less than it was.
As to the factors identified in Wood, the seriousness of the contempt was accepted by the appellant's counsel. The appellant was aware of the consequences to himself of what he did. The contempt was committed in the context of a serious crime. Factor number six was not relevant. There had been no apology or public expression of contrition. It was accepted there needed to be a sentence reflecting deterrence.
As to the impact on the trial, the accused Kefalianos was convicted. However the potential for an acquittal arising from the appellant's refusal to give evidence, and the manner in which his evidence was ultimately put before the jury, remained until that point. There needed to be a clear message sent to the appellant and others that deliberately creating a situation where the outcome of a trial may be adversely affected by someone in the position of the appellant will not be tolerated.
The Chief Justice was entitled to regard the appellant's behaviour as a deliberate and persistent flouting of the authority of the Court which needed to be dealt with by a sentence which could deter the appellant and others from repeating this type of behaviour. The appellant had every opportunity to raise matters by way of explanation or mitigation before sentence. He chose not to.
In her written submissions counsel for the appellant raised a number of potential mitigating factors. The Criminal Code Act 1924, s 402(4), provides that, on an appeal against sentence, the Court, if it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case, shall dismiss the appeal. Even were the factors identified by counsel as mitigating factors accepted and allowing for the fact that grounds 1 and 3 have been made out, I am not satisfied that a less severe sentence than that imposed was warranted in law and should have been passed. As I have already indicated the need for a deterrent sentence was a significant factor to be considered in circumstances where the appellant's behaviour generally demonstrated contempt for the Court process both in the trial of Mr Kefalianos and the appellant's own sentencing process
Those are my reasons for joining in the order made dismissing the appellant's appeal.
File No CCA 253/2014
CHRISTOPHER STEPHEN STANLEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
7 December 2015
I have read the reasons for judgment of Tennent J. Those reasons reflect the view I took when I joined in the order dismissing the appeal
I would like to add something about ground 3. As Tennent J has explained, counsel for the appellant expressly did not pursue it on the basis of a ground for setting aside the finding of guilt. Had it been, given the facts, the Court would inevitably have had to review that finding. In that event, my view would have been that the case was a clear one for the application of the proviso in s 402(2) of the Criminal Code. In the circumstances, no substantial miscarriage of justice could be said to have occurred.
I would also like to say something about the procedure to be adopted when dealing with contempt in the face of the court. In Zukanovic v Magistrates Court of Victoria at Moorabbin (2011) 32 VR 216, J Forrest J, considered the appropriate procedures in the context of statutory provisions. Those provisions enabled a magistrate to bring a person before the court, and required the person to be informed of the contempt with which he or she was charged. The court could then adopt any procedure that it thought fit. At 225 [41], his Honour summarised the steps necessary for a fair hearing of a charge of contempt. The requirements are as follows:
· to set out the charge so that the defendant understands it;
· to afford the defendant the opportunity to consider the charge and, if necessary, seek further legal advice, an adjournment, or further particulars;
· to give the defendant an opportunity to state whether s/he pleads guilty or not guilty to the charge;
· in the event that the defendant pleads not guilty, to give him or her the opportunity to present evidence and make submissions, and
· having adopted that procedure, to be satisfied beyond reasonable doubt that the defendant is guilty of the charge, and in doing so to consider carefully all the evidence, keeping in mind the unusual role being undertaken in the process.
In Director of Public Prosecutions v Green [2013] VSCA 78, the Court of Appeal held that the procedure described in Zukanovic was correctly applied to proceedings for contempt arising from a refusal to answer questions. It seems to me that there is nothing to suggest that generally, the procedure outlined would not be of universal application.
Lastly, both counsel in this appeal referred to r 491 of the Supreme Court Rules 2000. I would leave open the question of whether those rules apply to contempt in the face of the Court sitting in its criminal jurisdiction, although the content of the rule seems to reflect proper practice.
File No CCA 253/2014
CHRISTOPHER STEPHEN STANLEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
7 December 2015
I have had the advantage of reading the reasons prepared by Tennent J and the additional comments of Porter J. I joined in the order dismissing the appeal for the reasons stated by them.
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