Trad v Pickles Auction Pty Ltd

[2006] NSWSC 1177

CITATION:	Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177
HEARING DATE(S):	26 October 2006
JUDGMENT DATE :	27 October 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Contemnor sentenced to imprisonment for 21 days.
CATCHWORDS:	PROCEDURE [722] – Contempt, attachment and sequestration – Attachment and committal – As a method of punishment – The order – Nature of punishment – Imprisonment – Civil proceedings – Refusal to answer questions.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 ss 5 - 10, 12 & 22 Supreme Court Rules 1970 Part 55 Division 2 Uniform Civil Procedure Rules 2005 r 5.2
CASES CITED:	Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 Makrynikos v Regina [2006] NSWCCA 170 Principal Registrar of the Supreme Court of New South Wales v Drollet [2002] NSWSC 490 Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 Registrar of the Court of Appeal v Gilby NSWCA 20 August 1991 unreported Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Registrar of the Court of Appeal v Raad NSWCA 9 June 1992 unreported Wood v Galea (1997) 92 A Crim R 287 Wood v Staunton (No 5) (1996) 86 A Crim R 183
PARTIES:	Carl Trad (P) Pickles Auction Pty Limited (D1) Esanda Finance Corporation (D2) Konstantinos Christos (D3)
FILE NUMBER(S):	SC 2617/06
COUNSEL:	In person (P) No appearance (D1& 2) W Szekely, Solicitor (D3) R D Cogswell SC, CA, Amicus Curiae
SOLICITORS:	In person (P) Deacons (D1 & 2) Szekely & Associates (D3) Crown Solicitor, Amicus Curiae

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 27 OCTOBER 2006

IN THE MATTER OF CARL TRAD

JUDGMENT

1 HIS HONOUR: Carl Trad has been tried on a charge of contempt of court in that upon being examined in this Court before me on 13 October 2006 upon order made under r 5.2 of the Uniform Civil Procedure Rules 2005 (“the UCPR”) he has refused to answer questions put to him: (a) as to the names of the four persons he said he believed had possession of the Ferrari motor car the subject of these proceedings; (b) as to the addresses of two of those persons whose addresses he said he knew.

2 The proceedings for contempt were brought under Division 2 of Part 55 of the Supreme Court Rules 1970, which are still in force as to proceedings for contempt of court. Division 2 provides for summary proceedings in relation to contempts committed in the face of the Court. Mr Trad has been given ample opportunity to obtain legal representation, either in defence of the charge or in mitigation of penalty. During the hearing of the charge, the Court has been assisted by Mr Richard Cogswell SC, the Crown Advocate, appearing as amicus curiae.

FACTS

3 These proceedings, in the course of which the charge arose, were proceedings between Mr Trad as plaintiff and the third defendant relating to the ownership and possession of a valuable Ferrari motor car. The first and second defendants were dismissed out of these proceedings on 29 September 2006.

4 On 4 October 2006 Gzell J made an interlocutory order for the delivery of the car into neutral custody on or before 6 October 2006. Mr Trad did not deliver the car in compliance with that order but filed an affidavit of 7 October 2006 explaining his conduct in not complying with the order. In that affidavit he said that: “Certain people ... took matters into their own hands and have now hidden the car from me ... My hands are tied so to speak and I have been put in a very dangerous situation.”

5 On 13 October 2006 the third defendant applied before me for an order for the examination of Mr Trad by way of preliminary discovery under r 5.2 of the UCPR. The order was made. The purpose of the order was so that Mr Trad could be examined as to the identity and whereabouts of the persons he said were in possession of the car, so that they could be joined, if deemed appropriate, as parties to the proceedings concerning the car’s ownership and possession. Mr Trad was in court at the time the order was made and he was immediately sworn and examined pursuant to the order. He refused to give answers to questions on two subject matters, namely, the identity of four people he said he believed had possession of the car and the addresses of two of those people. It was plain from his answers that he knew the identity of the four people and that he knew the addresses of two of them.

6 On the argument concerning the making of the order, before he was sworn, Mr Trad said:

“I don’t know the repercussions I’m going to have and what’s going to happen. What are they going to do or maybe not believe me or think it’s all made up [sic]. It possibly may have repercussions on me. I can’t say, rattle off their names, I just can’t do that.”

When he was sworn and examined he gave the following among other answers:


“Q Can you please identify the names of those persons?
A No.

Q Why not?
A Because it is going to have repercussions. I just, I’m trying not to be in contempt here. I have --

Q You are refusing to answer that question?
A Yes, on the ground that it could prejudice my safety or my family.”

He also refused to give the addresses that he said he knew. Mr Trad was orally charged on that day with the present charge. He was given subsequent opportunities to give the information, but always declined, substantially repeating the reasons given above.

7 On 26 October 2006 the charge came on for hearing before me. Mr Trad pleaded guilty. I accepted the plea. The relevant evidence was laid before the Court. The Crown Advocate addressed to assist the Court. Mr Trad made submissions in mitigation of sentence.

LAW

8 The principles to be applied in sentencing a contemnor for contempt of court were discussed generally by the Court of Appeal in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. Various lists of factors to be taken into account on sentence for this offence have been given in judicial decisions on the matter. The most comprehensive list was given by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 where his Honour set out a list of 10 factors. That list was adopted by McDougall J in Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964. Those 10 factors are:

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.
6 Whether 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.
10 Denunciation of the contempt.

9 McDougall J drew attention to a further factor enunciated by Hunt CJ at CL in Wood v Galea (1997) 92 A Crim R 287 at 291, namely, “whether the contempt was motivated by fear of harm had the contemnor given the evidence”. Whether or not this should be regarded as a separate factor or a subspecies of factor 5, I shall give it my attention and shall do so under the heading of factor 5.

10 I shall now go to these 10 factors in turn.

1 The seriousness of the contempt proved

11 Refusal to give evidence or answer questions is always a serious contempt. It goes to the root of the justice system. I need only quote Kirby P in Registrar of the Court of Appeal v Raad NSWCA 9 June 1992 unreported. His Honour there said:

“As was properly conceded for the contemnor, this was a serious case of contempt. The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the Courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby [infra] , the refusal to be sworn or, once sworn, to give evidence is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the Court in answer to questions lawfully addressed.”

Whilst that was a criminal case, the remarks in my view apply with equal force to the administration of civil justice. The civil justice system as well as the criminal justice system conduces to the peace and order of society.

2 Whether contemnor aware of consequences

12 It is plain from the evidence that the contemnor at all times knew that his refusal to answer questions was a matter of seriousness and a contempt of court, for which he might be punished.

3 Actual consequences of the contempt

13 These are very difficult to assess. The proceedings were settled, as between the plaintiff and the third defendant, on 26 October 2006, the day of the hearing of the contempt charge. Both the plaintiff’s claim and the third defendant’s cross claim were dismissed. There remained no claim to proceed against anyone as to ownership or possession of the car. Although it is clear that at the time of the contempt the third defendant had a potential interest in joining the possessors of the car in the proceedings, so far as the evidence goes he did not persist in any such intention as of yesterday. He consented to a key and security device for the car held in Court being handed out to the plaintiff, along with documents releasing security over the car lodged by the first and second defendants at the time of their dismissal from the proceedings. It cannot be positively determined that, in the end, there were any consequences of seriousness to the proceedings between the plaintiff and the third defendant or to any prospective proceedings arising out of the refusal to answer questions.

4 & 6 Whether or not contempt committed in context of serious crime and whether or not contemnor has received any benefit by indicating intention to give evidence

14 These factors do not apply. The context here is of civil proceedings. Whilst the seriousness of the offence may be heightened by a context of serious crime, the offence remains one of grave seriousness in the context of civil proceedings where, as I have said, the remarks by Kirby P in Raad quoted in [11] above equally apply.

5 The reason for the contempt

15 The only reason given for the contempt is an apprehension of danger to the contemnor and his wife and children. Duress was not raised in this case as a defence and the plea of guilty was accepted. On the material before the Court, in my opinion, it was dubious whether the offence of duress could even have been raised and clear that, if it was raised, the prosecution onus of overcoming the defence would be discharged. In saying this, I have taken into consideration the elements of the defence as recently set out in Makrynikos v Regina [2006] NSWCCA 170 at [9] – [11]. I have also taken into account what was stated in the Court of Appeal in Registrar of the Court of Appeal v Gilby NSWCA 20 August 1991 unreported where the Court emphasised the necessity, to constitute duress, of “elements of immediacy, directness and fear in respect of what has been done”. Their Honours emphasised that it “is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them ... but such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon to do so”. However, as was made plain by Hunt CJ at CL in Galea, a subjective apprehension of danger not sufficient to constitute duress may be taken into account in mitigation of the penalty where a contemnor is guilty of contempt: see [9] above.

16 To be taken into account in mitigation the subjective apprehension of danger must be established by the contemnor on the balance of probabilities. Although not free from doubt, on the balance of probabilities, I accept that the contemnor did have a degree of subjective apprehension of danger to him or his family which was at least a motivation for his conduct. In accepting this, I rely on the consistency of his account to this effect from the very start, his plea of guilty and his demeanour in giving evidence on this matter. It will be taken into account in his favour, although it was not sufficient to relieve him of the obligation to answer questions.

7 Whether there has been any apology or contrition

17 The contemnor has not apologised and has persisted in his conduct though given opportunities to recant. He cannot be said to have expressed contrition. It is in his favour that he has acknowledged the wrongness of his conduct and expressed regret at having broken the law. That I accept, and again these are matters to be taken into consideration in his favour.

8 The character and antecedents of the contemnor

18 The contemnor has not led a blameless life. His criminal antecedents are in evidence and show a course of various offences, some serious, over about 12 years leading up to 1997, that is, between the ages of about 20 and 32. He has pointed out in his own favour that he has had no conviction since 1997. Nonetheless, he cannot be said to be of good character so as to have that taken into account in his favour.

9 & 10 General and personal deterrence and denunciation of the contempt

19 I do not regard personal deterrence as a significant factor in this case, because I do not regard it as likely that the contemnor will find himself again in these circumstances. However, general deterrence and denunciation of the contempt are of the greatest importance. I have already adverted to the seriousness of the offence and the importance of the matter to the administration of civil as well as of criminal justice. The effect of these factors I shall advert to again below.

20 The Crown Advocate has provided to the Court details of the sentences imposed in 15 cases of refusal to give evidence or answer questions. The list and summary of those cases has been placed in the Court file. It is interesting to note that all those offences occurred in the context either of criminal proceedings or of Royal Commissions or commissions of inquiry. None is relevant to a refusal to give evidence or answer questions in ordinary civil proceedings.

21 There is ample authority that sentencing for contempt of court is subject to the Crimes (Sentencing Procedure) Act 1999 (“the CSPA”): see Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; Principal Registrar of the Supreme Court of New South Wales v Drollet [2002] NSWSC 490; and Walker supra. I have taken its provisions into account.

22 They direct that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s 5(1).

23 I have considered the possibility of a community service order and a good behaviour bond and of a suspended sentence as alternatives to imprisonment: ss 8, 9 and 12. I have considered the possibility of periodic detention and home detention as alternatives to a full time custodial sentence: ss 6 and 7. The dismissal of the charge without conviction (s 10) was not considered before the conviction was entered, but it will be apparent from what I shall say that there was never any possibility of that course being followed. I have adverted to the possibility of a fine but, apart from other considerations, this was contraindicated by the contemnor’s declared impecuniosity.

24 I have taken into account all the matters dealt with above. By reason of the seriousness of the offence and the need for general deterrence and for public denunciation of the conduct, I am of the view that a full time custodial sentence must be imposed. The seriousness of the offence lies in its propensity to strike at the root of the administration of justice, as adverted to by Kirby P in Raad supra. The considerations in mitigation in this case are not sufficient to outweigh the factors indicating the necessity of a full time custodial sentence.

25 In light of the matters above, it is my view that the appropriate sentence is a sentence of imprisonment for 28 days.

26 However, there is one matter that I have not yet considered, which is the requirement of s 22 of the CSPA that, in case of a plea of guilty, the Court must take into account the fact of the plea and of when it occurred or was indicated. The contemnor in this case has at no time denied but always admitted the offence. He pleaded guilty at the first opportunity, specifically rejecting offers to allow him more time to obtain representation. In my view, there is no reason why he is not entitled to full credit for this. As a result of this factor, his sentence will be reduced by 25 per cent to 21 days.

27 I have determined that the contemnor should be committed to prison. Mr Trad, I sentence you to imprisonment for the term of 21 days.

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