Tasmania v Sheehan
[2005] TASSC 127
•16 December 2005
[2005] TASSC 127
CITATION: Tasmania v Sheehan [2005] TASSC 127
PARTIES: TASMANIA, STATE OF
v
SHEEHAN, David Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL JURISDICTION
FILE NO/S: 263/2004
DELIVERED ON: 16 December 2005
DELIVERED AT: Hobart
HEARING DATE: 18, 25, 29 November, 8 December 2005
JUDGMENT OF: Evans J
CATCHWORDS:
Procedure – Contempt, attachment and sequestration – Contempt – What constitutes – Contempt committed in face of court – False assertion of inability to recall relevant evidence.
Keeley v Mr Justice Brooking (1979 – 1980) 143 CLR 162, referred to.
Aust Dig Procedure [675]
REPRESENTATION:
Counsel:
Plaintiff: J N Perks
Defendant: K Edwards
Solicitors:
Plaintiff: Director of Public Prosecutions
Defendant: Legal Aid Commission of Tasmania
Judgment Number: [2005] TASSC 127
Number of paragraphs: 17
Serial No 127/2005
File No 263/2004
TASMANIA v DAVID ANDREW SHEEHAN
REASONS FOR JUDGMENT EVANS J
16 December 2005
The defendant has shown cause to two citations for contempt of court.
The background to these citations is as follows. On 16 September 2003, Bernd Aberle, a pedestrian, was killed when struck by a motor vehicle. Police investigations indicated that the motor vehicle involved was a yellow Ford Cortina station wagon driven by Matthew Leary in which Melissa Baillie was a passenger. They were interviewed by police on 17 September 2003 when each made a statutory declaration to the effect that they were not in the Cortina at the time of the collision and that at the relevant time it was in the possession of a person, not previously known to them, named "Chad".
On 17 September 2003 David Sheehan was interviewed by Constable F J Clarke. The Cortina involved in the collision had been in the possession of Mr Sheehan prior to him passing possession of it to Mr Leary on the day of the fatal accident. Mr Sheehan provided Constable Clarke with a statutory declaration which included the following. The references in the declaration to "Matty" are to Matthew Leary:
"I have lived at the Lakeside Caravan Park, Eugenana for less than a week, moving in to Unit 11 on Monday the 15th of September 2003. Before moving to the caravan park, I had lived at Sherwood. On Sunday the 14th of September 2003, I borrowed a yellow Ford Cortina Station wagon from my friend Garry WINWOOD. I had possession of the car until Tuesday the 16th of September 2003, when a male I know to me as Matty, who also lives in the caravan park, came to me and told me that Garry wanted the car back because he was going to get rid of it. I gave Matty the car keys and I was of the understanding that Matty was going to take the car back to Garry in Devonport. This would have been around 5 pm.
Later that evening, around 10 pm to 11 pm, I went to go to the toilet and Matty called out to me and I went over to him at his unit. Matty told me that he had hit a guide post with the car and asked me if I could follow him out the road and pick him up. I saw that the Cortina was parked facing in to the side of Matty's Unit, but I did not see any damage as it was dark and the front of the vehicle was away from me. I do not recall Matty having any injuries that I noticed.
I agreed to do this and followed Matty while he drove out towards Forth. I followed him for a while, while he drove, then would stop, then he would drive off again. I eventually followed Matty to where he stopped the vehicle, somewhere half way between Eugenana and Forth. The road we were on comes out on the top of Forth Hill I think. I don't think I had driven long, but I don't really take much notice. I was driving my blue Ford XF Falcon.
I saw Matty pull the Cortina over to the side of the road, then he jumped into the car with me and we drove into Devonport and got some fuel at Murchott's Ampol Service Station in William Street, Devonport. We then drove around Devonport to see if one of my friends were home, then I drove back to the caravan park, dropping Matty off at his unit around Midnight. I then went back to my unit and went to bed shortly after. I did not ask any questions about the vehicle as I did not want to know what was going on, but I thought that something strange was going on.
I do not know Matty very well personally and am not in a position to make any judgement or comment on how he was behaving. I do not know anyone named Chad and Matty didn't mention anyone by that name.
Today, Wednesday the 17th of September 2003, I heard on the radio about an accident in Devonport involving a hit and run. Later today, Police came to see me and asked me to attend the Devonport Station. I later attended and have now made this Statutory Declaration."
Mr Leary and Ms Baillie were charged with perverting justice referable to the fatal collision. The charge against them involved contentions that at the time of the collision, Mr Leary was driving the Cortina and Ms Baillie was a passenger in it and that in order to deflect police enquiries into the collision, they concocted the false claim that the Cortina was in the possession of a person called Chad when the collision occurred. A further aspect of the charge against Mr Leary was a contention that he had driven the Cortina to a remote location and set fire to it.
The evidence contained in Mr Sheehan's statutory declaration was of significance. His evidence that Mr Leary had told him that he had hit a guidepost with the Cortina contradicted Mr Leary's denial that he was in the Cortina when it was damaged and his claim that at that time the vehicle was with Chad. Mr Sheehan's evidence that he did not know of anyone named Chad and that Mr Leary had not mentioned anyone by that name, cast doubt on the claims of Mr Leary and Ms Baillie that possession of the Cortina had been passed to a person of that name. Mr Sheehan's evidence of following Mr Leary in order to pick him up after he left the Cortina in a remote area also contradicted Mr Leary's evidence about Chad having possession of the car and provided support for an inference that Mr Leary dumped the Cortina and set fire to it because of a consciousness of guilt.
Mr Sheehan was served with a final notice to attend to give evidence at the hearing of the committal proceedings on the charges against Mr Leary and Ms Baillie. He failed to attend. A final notice to attend to give evidence on the trial of Mr Leary and Ms Baillie was served on Mr Sheehan on 15 November 2005. That notice included the following:
"YOU ARE NOTIFIED that you are required to attend and give evidence at the trial of
MATTHEW RONALD LEARY & MELISSA JEAN BAILLIE
before the Supreme Court of Tasmania at Alexander Street, Burnie on Wednesday 16th November, 2005 at 9.30am and from day to day until that trial has been heard and determined.
Failure to attend Court on that date and answer questions properly put to you in Court will render you liable, upon conviction, to a penalty of a fine not exceeding 20 penalty units or imprisonment for a period not exceeding six months, or both.
…
NOTE: You may make written application (stating reasons) to the Registrar of the Supreme Court for an order that you be excused from giving evidence at the trial."
Mr Sheehan did not attend the Court in compliance with the final notice on 16 November or 17 November. A warrant was issued for his arrest and on the afternoon of 17 November he was brought before the Court. As he had failed to attend the committal hearing, it was necessary to conduct a "Basha" hearing, that is, take evidence from him on a voir dire prior to him giving evidence before the jury.
In the course of the evidence led from Mr Sheehan on the voir dire, he said that:
·Before he moved into the Melrose Caravan Park in 2003 he had on occasions visited a friend named Michelle who had a unit at the park and he had moved into her unit.
·When at the caravan park he had been in possession of a yellow Ford Cortina station wagon that he used to borrow from Garry Winwood quite often.
·He had known Matthew Leary and Melissa Baillie at that time.
·On the last occasion that he borrowed the Cortina, Garry Winwood had telephoned him and told him it was to be sold. On that occasion Mr Sheehan had handed the keys to the Cortina to Mr Leary who was going to take the Cortina back to Garry Winwood. Later on the night of this occasion, he had seen Mr Leary at the caravan park.
As to what occurred after he saw Mr Leary at the caravan park that night, Mr Sheehan said he could only go on what was in his statement and it did not refresh his memory. He said he had no memory of what had occurred and that his evidence that he had handed the keys of the Cortina to Mr Leary had been based on the statement, as he had no memory of doing so. When pressed in cross-examination, he said he had no memory of seeing Mr Leary or Ms Baillie at the caravan park, or of their being at the caravan park. He attributed his recall of the telephone conversation when Garry Winwood told him that the Cortina was to be sold to something said to him by one of the police officers who arrested him and brought him to the Court to give evidence. When Mr Sheehan again appeared before the Court on the following day after his arrest, he reiterated that he did not remember anything of the events involving the Cortina and Matthew Leary. In consequence, the prosecutor did not call Mr Sheehan as a witness on the trial of Mr Leary and Ms Baillie.
Mr Sheehan has been cited for contempt of court in that:
·he failed to attend the Court to give evidence in compliance with a final notice that was served on him on 15 November 2005; and
·he avoided giving evidence on the trial by falsely asserting an inability to recall any of the events of 16 September 2003 as detailed in his statement to the police of 17 September 2003.
In defence of the first of these charges, Mr Sheehan gave evidence that he did not attend Court on 16 November 2005 as he was too unwell. He said that for a couple of days he had been hardly able to move or walk and had been vomiting. He told the Court he had been stabbed in an incident at Latrobe about four or five years previously and had since suffered from bowel obstructions. He also complained of gallstone problems. He attributed the symptoms that he said rendered him unable to attend Court to a bowel obstruction or a gallstone problem. He said that his inability to recall anything of the matters canvassed in his statement to the police on 17 September 2003 arose from the medication he regularly took for his bowel condition, as well as the extent to which he smoked marihuana and drank alcohol.
Mr Sheehan's general practitioner, Dr Antoni Gelbert-Ferrer, gave evidence confirming that Mr Sheehan had been referred to a surgeon to deal with his gallstone problems and said that in consequence of the stabbing incident, Mr Sheehan was vulnerable to recurrent episodes of acute bowel obstruction. He also said that it was generally accepted that regular use of the medication that Mr Sheehan was taking could cause memory loss, as could the regular use of marihuana. This evidence provided a plausible basis for Mr Sheehan's explanations. However, in the light of other evidence, I am not prepared to accept his explanations in the absence of corroboration. The other evidence to which I refer includes evidence that on 26 July 2004, Sergeant David Chapman served Mr Sheehan with a summons to attend the committal hearing of the charges against Mr Leary and Ms Baillie. After effecting service at the Devonport police station, Sergeant Chapman drove Mr Sheehan home. In the course of that trip Mr Sheehan said to Sergeant Chapman that he did not want to go to court to give evidence as he had been the victim of a stabbing and the prosecution referable to that incident had failed as witnesses had not turned up to give evidence. He in effect said that as witnesses had not attended court in support of him, he was not going to attend court in support of others. Sergeant Chapman said that Mr Sheehan told him a lot of details about the stabbing incident that he had not previously been aware of and that Mr Sheehan did not say anything to the effect that he was reluctant to give evidence as he had a poor memory or no memory of the relevant events. When Mr Sheehan did not attend Court on the day of the committal hearing, Sergeant Chapman made attempts to locate him. Sergeant Chapman went to Mr Sheehan's residence but nobody was there. A warrant was issued for Mr Sheehan's arrest.
On 14 February 2005 Constable Robert Woodrow arrested Mr Sheehan on the abovementioned warrant. As to his failure to attend the committal hearing, Mr Sheehan said to Constable Woodrow that he had said at the time that he made the statutory declaration that he was not going to turn up to give evidence, and that he would not turn up in the future.
The unchallenged evidence from these police officers satisfies me that Mr Sheehan was intent on avoiding giving evidence on the trial of Mr Leary and Ms Ballie.
Mr Sheehan prevailed on Dr Gelbert-Ferrer to issue a medical certificate dated 16 November 2005 in the following terms:
"this is to certify that
Mr David Sheehan
is receiving medical treatment and for the period
16.11.05 to 16.11.05 inclusive
he/she will be unfit to continue his/her usual occupation".
This certificate is a sham. The doctor had not seen Mr Sheehan on or shortly prior to 16 November 2005, or arranged for Mr Sheehan to receive any particular medical treatment on 16 November 2005, and at that time Mr Sheehan was not pursuing any "usual occupation" which, according to the certificate, he was "unfit to continue". The issuing of that certificate does the doctor no credit and does not assist Mr Sheehan. He said that as the doctor could not see him on 16 November, he arranged for someone to drive him to the hospital at Latrobe. He said that he did not obtain any treatment at the hospital as when he arrived he assessed that there were too many people present so he decided to return home. He said that he was driven to and from the hospital by a young man whose name he could recall. The final notice required Mr Sheehan to attend the Court "from day to day until the trial has been heard and determined". He said that he did not attend the Court on 17 November 2005 as he was still unwell and intended to again go to the hospital at Latrobe. He was arrested at his home at 11.30am on that day and brought before the Court. He gave evidence at about 2.15pm at which time, to my observation, he did not exhibit any difficulty in giving evidence. He did not then complain that for any reason whatsoever it was difficult for him to enter the witness box and give evidence.
In giving evidence on that day and subsequently, Mr Sheehan demonstrated a selective capacity to recall some past events. For example, he recalled that prior to the 2003 incident, he borrowed the Cortina from Garry Winwood "quite often". Whilst a person in Mr Sheehan's circumstances may have a poor memory, nothing put before me satisfies me that he has no memory of the relevant events. In this regard it is pertinent that since April of this year, Mr Sheehan has attended Dr Gelbert-Ferrer on average every 10 days, but has never expressed any concern to the doctor about memory loss. There is no evidence before me to corroborate Mr Sheehan's claims as to the extent of his memory loss or as to his incapacity to attend the Court in compliance with the final notice.
On a summary trial for contempt such as this, caution and great care is called for on the Court's part in satisfying itself that the accused is in fact lying in order to avoid giving evidence, Keeley v Mr Justice Brooking (1979 – 1980) 143 CLR 162 at 166 and 172. Nevertheless, I have no hesitation in finding that Mr Sheehan is guilty as charged. I am satisfied beyond reasonable doubt that Mr Sheehan failed to attend the Court to give evidence in compliance with the final notice served on him on 15 November 2005 and that he has not shown that there was a reasonable cause for that failure. I am also satisfied beyond reasonable doubt that he avoided giving evidence on the trial by falsely asserting an inability to recall any of the events of 16 September 2003 as detailed in his statement to the police of 17 September 2003.
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