Zappia v Registrar of the Supreme Court - [2004] SASC 375

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ZAPPIA v THE REGISTRAR OF THE SUPREME COURT
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
25 November 2004
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - CRIMINATING QUESTIONS - IN WHAT PROCEEDINGS PRIVILEGE AVAILABLE
Appellant and co-accused jointly charged with two counts of murder – separate trial of accused ordered - appellant gave evidence at his trial and was convicted of two counts of manslaughter – appellant appealed against convictions – trial of co-accused commenced – appellant called to give evidence against co-accused on voir dire and at trial before the determination of his appeal - appellant claimed privilege on ground that his answers might incriminate him on a possible re-trial or for perjury in respect of evidence given at his first trial – appellant charged with two counts of contempt of court and convicted after trial judge held that appellant could not rely on privilege against self-incrimination - role of court in determining whether to allow claim of privilege against self-incrimination considered - held that insufficient basis for privilege against self-incrimination - appeal against convictions for contempt dismissed.
Consideration as to whether privilege against self-incrimination available where claim of privilege relates to the risk of incrimination in relation to perjury.
Jackson v Gamble [1983] 1 VR 552; Brebner v Perry [1961] SASR 177; BRP Engineering Ltd v Patterson (1990) 20 NSWLR 724; Smith v The Queen (1991) 25 NSWLR 1, applied.
Rice v Gordon (1844) 13 LJ Ch 104, not followed.
Distributori Automatici Italia Spa v Holford General Trading Co Ltd [1985] 1 WLR 1066; Memory Corporation Plc, Datrontech Hong Kong Ltd v Sukhbir Sidhu, Sunsar Ltd [1999] EWHC Ch 197 (3 November 1999), discussed.
Reid v Howard (1995) 184 CLR 1; Crafter v Kelly [1941] SASR 237; Emanuel v Emanuel [1982] 1 WLR 669; R v Guariglia [2000] VSC 13, considered.

PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - POWER OF COURT TO PUNISH FOR CONTEMPT - SUPREME COURT - IN RESPECT OF CRIMINAL MATTERS
Appellant committed to imprisonment for 15 months on contempt charges to be served cumulatively on head sentence of 9 years' imprisonment for offence of manslaughter – non-parole period increased from 6 years to 7 years and 3 months – whether trial judge correct in applying provisions of Criminal Law Sentencing Act 1988 (“the Sentencing Act”) in relation to cumulative sentences and non-parole periods when sentencing for contempt of court – held that Sentencing Act did not apply – appeal against sentence allowed – global penalty of 12 months’ imprisonment for contempts of court imposed – sentence to commence when the Parole Board orders the release of the appellant in respect of the sentence for manslaughter or, if not released on parole, upon expiry of the head sentence of 9 years.
Nicholls v DPP (SA) (1993) 61 SASR 31, applied.
A.M.I.E.U. v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered.

ZAPPIA v THE REGISTRAR OF THE SUPREME COURT
[2004] SASC 375
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ. I agree with the orders proposed by Duggan J, and with the reasons that he gives for those orders. There is nothing that I wish to add.
DUGGAN J. This is an appeal against conviction and sentence on two counts of contempt of court.
In April 2001 the appellant was charged jointly with Jamil Kamleh with the murder of Faraz Rasti and Rhiannon Ellul at North Adelaide. In January 2002 the court directed that there be separate trials of the appellant and Kamleh.
The appellant’s trial took place first. It commenced on 5 April 2002. He was found not guilty on the charges of murder, but guilty of the alternative offences of manslaughter. He appealed against these convictions and leave to appeal was granted on 1 July 2002.
While the appellant was awaiting the appeal hearing, the trial of Kamleh commenced before a judge sitting alone. This trial commenced on 7 August 2002 and concluded on 27 September 2002. Kamleh was convicted on the two charges of murder.
The prosecution case against both the appellant and Kamleh was based on circumstantial evidence. The bodies of Mr Rasti and Ms Ellul were found in an apartment at North Adelaide on 3 April 2000. They had died from gun shot wounds. According to the prosecution case, the appellant and Kamleh knew each other and they also knew the two deceased. It was alleged that the appellant and Kamleh went to the apartment together and confronted the victims. It was further alleged that either the appellant or Kamleh shot the victims.
The appellant gave evidence at his trial. His version was summarised by Doyle CJ in his judgment on the appellant’s appeal against the conviction for manslaughter: R v Zappia [2002] SASC 354.
The appellant said that he knew Kamleh, Rasti and Ellul. According to the appellant, Rasti took a mobile telephone from Kamleh who became upset and spoke to the appellant about recovering it. Kamleh spoke about beating Rasti and asked where he could get a gun. The appellant and Kamleh spoke with Rasti on the Thursday and Saturday nights before the alleged offences. The appellant and Kamleh went to the apartment where Rasti and Ellul were staying on the Sunday night. Zappia got a gun from the car and said he would stand up to Rasti. When they arrived at the apartment Kamleh went into the bedroom where he shot Rasti. He then shot Ellul. According to the appellant he did not expect that anything of this nature would happen.
The Court of Criminal Appeal delivered judgment on the appellant’s appeal on 1 November 2002. The conviction for the manslaughter of Rasti was affirmed, but the conviction for the manslaughter of Ellul was set aside and a re-trial ordered on that charge. Subsequently, the prosecution decided not to proceed with the re-trial.
The Director of Public Prosecutions decided to call the appellant as a witness at Kamleh’s trial. The prosecutor advised the trial judge that the appellant would not give evidence voluntarily, but proposed that he be brought to the court from the Adelaide Remand Centre and, in the first instance, asked questions on a voir dire hearing.
The appellant was called on the voir dire hearing on 8 August 2002. He acknowledged that he gave evidence at his trial, but then stated that he claimed privilege and would not answer any questions about the matter. He added:
“I won’t give evidence because I don’t know what – I haven’t even met this bloke.”
The appellant was asked a number of questions on the voir dire by the prosecutor but refused to answer them. The appellant was directed by the trial judge to answer the questions, but refused to do so.
The appellant repeated his assertion that he did not wish to answer questions when he was called as a witness at the trial on 28 August 2002. Again, he was directed by the trial judge to answer questions put to him about the incident and again he refused to answer.
On 16 September 2002 the Acting Registrar of the Court issued two summonses against the appellant requiring him to answer charges of contempt for refusing to answer questions when directed to do so on the voir dire hearing and at the trial. He pleaded not guilty to these charges, but was convicted of them by another judge of the court, who is the judge appealed from.
Prior to his conviction on the contempt charges, the appellant had been sentenced to imprisonment for nine years with a non-parole period of six years for the manslaughter conviction which had been upheld by the Court of Criminal Appeal. The learned judge appealed from imposed a single penalty for the two contempts of court. He sentenced the appellant to imprisonment for 15 months which was made cumulative on the head sentence of nine years. He then increased the non-parole period to imprisonment for seven years and three months.
At the hearing of the charges of contempt, the appellant’s counsel argued that the appellant was entitled to refuse to answer questions asked of him during the voir dire hearing and at the trial of Kamleh by reason of the privilege against self-incrimination which, so it was argued, arose in two ways. Firstly it was said that the appellant’s appeal against the convictions for manslaughter had not yet been determined and, in view of the possibility of a re-trial, he was entitled to refuse to answer questions which could incriminate him in relation to the offences with which he had been charged.
Secondly, attention was drawn to the appellant’s comment on the voir dire hearing “I haven’t even met this bloke”. It was assumed by the trial judge and counsel that he was referring to Kamleh. This statement was contrary to the evidence which he gave at his trial and it was argued that, if the appellant continued to assert the truth of that statement when asked further questions about the matter, he would be acknowledging that he had committed perjury either at his own trial or in making the comment referred to at Kamleh’s trial.
The judge appealed from rejected the arguments based on privilege and, as has been pointed out, found both charges of contempt proved.
At the hearing of the present appeal Mr Cuthbertson QC, for the appellant, abandoned the argument that the appellant was entitled to refuse to answer questions on the ground that he might incriminate himself in relation to the charges of manslaughter. However, he argued that the appellant was entitled to claim privilege against self-incrimination in relation to the possible charge of perjury to which reference has been made.
In order to address the arguments raised on the appeal it is necessary to refer in more detail to the circumstances surrounding the appellant’s refusal to answer questions.
The voir dire hearing
When the appellant was called on the voir dire hearing Mr Ey announced that he was acting for him. Mr Ey told the court that there was a concern that the appellant could incriminate himself in the event that the Court of Criminal Appeal ordered a retrial of the charges against him. However, the prosecutor was permitted to question the appellant and the examination proceeded as follows:
“Q    Did you, in March of this year, give evidence, on oath, on the topic of your knowledge of the deaths of Faraz Rasti and Rhiannon Ellul?
A     Yes.
Q     Is there any reason which prevents you from giving evidence in this court on that same topic?
A     Yes; because I claim privilege.
Q     On what basis do you claim that privilege?
A     Because I’ve got an appeal pending.
Q     Is that the only reason - ?
A     Yes.
Q     That you are unable to give evidence to this court?
A     Yes.
HIS HONOUR
Q     Could you repeat why you can’t give evidence?
A     Because I’m not going to give evidence, and that’s it.
Q     I’m sorry?
A     I won’t give evidence, because I don’t know what – I haven’t even met this bloke.
Q     Why won’t you give evidence?
A     Because I won’t give evidence.”
Mr Ey then applied for an adjournment in order to apply for legal aid funding so that the issue of privilege could be argued. When the matter resumed, Mr Cuthbertson appeared for the appellant. He advised the court that the appellant claimed privilege against self-incrimination.
The trial judge informed Mr Cuthbertson of the evidence which the appellant had given before the adjournment and Mr Cuthbertson raised the question as to whether either the evidence given at the previous trial or the evidence given prior to the adjournment amounted to perjury. Mr Cuthbertson said that, in these circumstances, further questions could implicate the appellant in the crime of perjury. He added that it was open for the appellant to claim privilege on this basis and on the ground that the questions could incriminate the appellant in the event of a re-trial on a charge or charges of manslaughter.
After further discussion, the prosecutor was permitted to continue her examination of the appellant on the voir dire. The examination proceeded:
“Q    Did you give evidence on the topic, specifically, of who was present at the time when Faraz Rasti was killed?
A     I decline to answer any questions.
HIS HONOUR
Q     Why is that?
A     Because I decline to answer any questions.
Q     Why is that?
A     For the same reason.
MS KELLY:      I will ask the question again.
MS KELLY
Q     Did you give evidence on the topic, specifically, of who was present when Faraz Rasti was killed?
A     I decline to answer any questions.
HIS HONOUR
Q     Why is that, Mr Zappia?
A     Because I decline to answer any questions.
Q     You haven’t given me a reason why you don’t want to answer any questions. Do you want to tell me why?
A     I decline to answer any questions.
LAST TWO QUESTIONS AND ANSWERS READ BY REPORTER.
Q     Why is it that you decline to answer this question?
A     Because I have been advised by my lawyers to decline every question.
HIS HONOUR:           Mr Cuthbertson, do you want to make any submissions to me? If you do, I am going to direct Mr Zappia be taken out of court while you make submissions?
MR CUTHBERTSON:        No, I don’t think it is proper for me to make any submissions at this stage.
HIS HONOUR:           Do you seek a direction, Ms Kelly, from me that the witness answer the questions?
MS KELLY:      I do seek a direction, and I will have further submissions after the direction.
HIS HONOUR
Q     Mr Zappia, I direct you to answer the question.
A     I decline to answer.
Q     Will you do so?
A     I decline to answer any questions.
Q     You understand that I am directing you to answer the question?
A     I am declining to answer the question.
Q     You understand that, by declining to answer the question, you may be held in contempt of my direction; contempt of court. Do you understand that?
A     I still decline to answer the question.
Q     Do you understand what I have said?
A     Yes.”
There followed an adjournment during which counsel took instructions from the appellant. When the hearing resumed Mr Cuthbertson advised the trial judge that the appellant had instructed him that he would not give evidence. According to Mr Cuthbertson the appellant said “I don’t want to be a rat”.
The prosecutor then continued to examine the appellant:
“Q    Did you give evidence on the topic, specifically, of who was present at the time when Faraz Rasti was killed at your trial in March this year?
A     I decline to answer.
HIS HONOUR
Q     Would you tell me why you decline to answer that question?
A     Because I’m not a rat.
Q     What doest that mean?
A     Exactly what it says.
Q     I direct you to answer that question.
A     I decline to answer it.
Q     Do I understand that you refuse to follow my direction?
A     Yes.
Q     Could you explain to me why you refuse to follow my direction?
A     Because I decline to answer your question.
HIS HONOUR:           Ms Kelly, you intimated you had half a dozen questions.
MS KELLY:                Yes.
HIS HONOUR:           Do you propose to proceed with those questions, or would you prefer that we address the issue of contempt at this time?
MS KELLY:                Perhaps I’ll just make absolutely certain of one thing.
MS KELLY
Q     If you are asked any further questions on the topic of your evidence at the trial in March, will you answer those questions?
A     No.
HIS HONOUR:           Ms Kelly, I don’t know that that is necessarily going to provide an adequate basis than the asking of the question and getting the response. I’d invite you to ask a discrete number of questions, to ask the further questions you were proposing to at this stage.
MS KELLY:                Yes.
MS KELLY
Q     On the topic of who was present at the time when Faraz Rasti was killed, did you give truthful evidence in the court in March?
A     I decline to answer.
HIS HONOUR
Q      Why do you decline to answer the question?
A      Because I decline to answer.”
There was further discussion between the judge and counsel after which the following evidence was given:
“HIS HONOUR
Q     I’m going to direct that you answer the question that has just been asked of you, but I’ll ask Ms Kelly, the prosecutor, put the question to you again.
MS KELLY
Q     Specifically on the topic of who was present at the time when Mr Rasti was killed, was your evidence true?
A     I decline to answer.
HIS HONOUR
Q     I direct you to answer that question. Will you do so?
A     No.
Q     Why not?
A     Because I decline to answer.
Q     I didn’t hear that answer.
A     I decline to answer.
HIS HONOUR:           You proceed, Ms Kelly.
MS KELLY
Q     Did you, at your trial in March this year, give evidence on the topic of your movements on the night of Sunday evening, 2 April, and the early hours of Monday 3 April 2000?
MR CUTHBERTSON:        I won’t get up all the time when these questions are being asked, but could your Honour take it that I’m making an objection on the basis that they raise the issue of privilege, and my client is not capable of distinguishing issues, and that I simply raise it with your Honour. For the same reasons I have already put to your Honour, I won’t keep standing up.
HIS HONOUR:           I think you will need to, and don’t feel at all constrained in doing so.
I’m concerned about your submission that your client doesn’t understand sufficiently the issue to address it. On what is that based? Do you want to put some evidence before me about that?
MR CUTHBERTSON:        No, I don’t, or not at this stage. It may be that, at some stage, I would have to. It is simply an assessment of his lack of sophistication. It is difficult for him to understand how evidence is admissible and not admissible in a trial of a person.
HIS HONOUR:           You are not instructed to place any material before me about his lack of understanding of what is going on.
MR CUTHBERTSON:        Of the proceedings?
HIS HONOUR:           The issue that has been discussed?
MR CUTHBERTSON:        No.
LAST QUESTION READ BY REPORTER
HIS HONOUR
Q     Would you answer the question please?
A     I decline to answer any questions any more. That’s it. Don’t ask, because I’ll just decline every question. I’m sick of it. Just stop it.
Q     Will you explain to me why you won’t answer that question?
A     I decline to answer your questions.
Q     I direct you to answer that question. Will you do so?
A     I decline to answer that question.
HIS HONOUR:           Proceed, Ms Kelly.
MS KELLY
Q     Were you present at the time when Faraz Rasti was killed?
A     I decline to answer that question.
HIS HONOUR
Q     Why do you decline to answer the question?
A     Because I decline to answer that question.
Q     I direct you to answer that question.
A     I decline it.
Q     Will you do so?
A     I decline to answer all questions.
MR CUTHBERTSON:        I make the same objection.
MS KELLY:  To some extent, this is an artificial question, because it presupposes an answer to the last question, but I’ll get it on the record.
MS KELLY
Q     Was there any other person or persons present when Faraz Rasti was killed?
OBJECTION:     MR CUTHBERTSON OBJECTS.
MR CUTHBERTSON:        For the same reason.
A     I decline to answer any questions, like I said before.
HIS HONOUR
Q     Why do you decline to answer that question?
A     I decline everything you say. Whatever you say, I decline everything.
Q     I direct you to answer that question. Will you do so?
A     I decline it.
Q     Why not?
A     Exactly what I said.
MS KELLY
Q     At your trial in March this year, a witness named Jeremy Ievins gave evidence that he saw two men enter The Grand Apartments at approximately 1 a.m. on Monday, 3 April 2000. Were you one of those two men?
OBJECTION: MR CUTHBERTSON OBJECTS.
A     I decline on [sic] answer.
HIS HONOUR
Q     Why do you decline to answer?
A     I decline to answer all questions.
Q     I direct you to answer that question. Will you do so?
A     No, I decline to answer everything.
Q     Why won’t you follow my direction?
A     I decline to answer all questions.
MS KELLY:                I don’t propose to take it any further.”
The trial

When the appellant was called at the trial he was represented by Mr Boucaut. The prosecutor gave an indication of the topics upon which she proposed to question the appellant. She said:
“MS KELLY: The first question I propose to ask is: Did you, on 22 March and thereafter this year, give evidence on oath on the topic of your knowledge about the deaths of Faraz Rasti and Rhiannon Ellul. I then propose to ask the witness if there is any reason which prevents him giving evidence in this court on the same topic. I then propose to ask him who was present at the time Rhiannon Ellul and Faraz Rasti were killed. I don’t have any other questions.”
The prosecutor then questioned the appellant as follows:
“Q    Did you in March of this year give evidence on oath on the topic of your knowledge of the death of Faraz Rasti and Rhiannon Ellul?
A     I decline to answer all questions.
MS KELLY:                Does your Honour want me to put the other questions?
HIS HONOUR:           I would like the other questions put.
HIS HONOUR
Q      Why do you decline to answer all questions?
A      Because I decline to answer all the questions.
Q      And why is that?
A      Because I decline to answer the questions.
Q      I direct you to answer that question.
HIS HONOUR:           Would you put the question again please.
XN
Q     Did you in March of this year give evidence on oath on the topic of your knowledge of Faraz Rasti and Rhiannon Ellul?
A     I decline to answer all the questions.
HIS HONOUR
Q     Do you do so despite my direction to you to answer that question?
A     Yes, I’m despiting –
Q     Beg your pardon?
LAST QUESTION READ BY REPORTER
MR BOUCAUT:         I don’t know that your Honour made it clear – certainly clear to me or to anyone at the bar table – as to why he claims privilege. I invite your Honour to perhaps ask whether or not there are any reasons as to why he takes that stance.
HIS HONOUR:           Certainly.
HIS HONOUR
Q     Mr Zappia, you understand that I have directed you to answer the prosecutor’s question. (NOT ANSWERED)
Q     You have nodded. Is the answer ‘yes; do you understand that?
A     Yes.
Q     You have told me that you will not answer the questions.
A     That’s right.
Q     You have told me that you will not answer the question, notwithstanding my direction that you do so; that’s so isn’t it?
A     Yes.
Q     I have asked you why you take this position and you have repeated to me that you won’t answer any questions. Can you tell me the reasons why you won’t answer the questions?
A     Because I have an appeal pending and I don’t want to incriminate myself.
Q     Why is it that you have an appeal pending, why is that relevant?
MR BOUCAUT:         With respect, I protest to that question. That’s inviting him to engage in a legal debate.
HIS HONOUR:           If you don’t want him to answer that question I won’t press it.”
After further discussion between the judge and counsel the judge questioned the appellant:
“HIS HONOUR
Q     Mr Zappia, have you told me all you wish to about your reasons for not following my direction to answer that question from the prosecutor?
A     No.
Q     Is there anything else that you want to tell me?
A     I written [sic] the reasons why on paper.
Q     Is there anything else that you want to tell me?
A     No.”
Finally, there was this further examination of the appellant by the prosecutor:
“Q    Who was present at the time when Rhiannon Ellul and Faraz Rasti were killed?
A     I decline to answer any questions.
HIS HONOUR
Q     What are the reasons that you have for declining to answer that question, Mr Zappia?
A     I decline to answer all questions.
Q     I direct you to answer that question.
A     Well, I’m declining to answer the question.
Q     Why is that?
A     Because I don’t want to answer the question.
MS KELLY:                I don’t propose to take it any further.”
Later in the proceedings the trial judge charged the appellant with the two counts of contempt. Details of the charges are set out later in these reasons.
The role of the court in determining whether to allow a claim of privilege against self-incrimination
The court is required to determine whether the claim for privilege is reasonable and bona fide: Jackson v Gamble [1983] 1 VR 552. In a frequently cited passage in Brebner v Perry [1961] SASR 177 at 180 Mayo J said:
“What is the general proposition in regard to the compulsion of a witness to answer where he objects? The matter was discussed and principles stated and elaborated in J H Sherring & Co v Hinton [1932] SASR 233; 7 Austn. Digest 755 and in Matthew v Flood [1938] SASR 312; 26 Austn. Digest 232. Where a witness who is on oath objects that the answer to a question put to him may incriminate him, and there is good reason to accept the objection as well founded he will be excused. ‘The danger … must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suppose it to influence his conduct’: R v Boyes (1861) 1 B. & S. 311 at p 330 (121 ER 730 at p 738); Ex parte Reynolds; In re Reynolds (1882) 20 Ch. D. 294. Where the risk is removed by a pardon or by a lapse of time, certainly if there be a statutory limitation upon proceedings, the privilege of the witness no longer remains: Roberts v Allatt (1828) Moo. & Malk. 192 (173 ER 1128); Dover v Maestaer (1803) 5 Esp. 93 (170 ER 749); Attorney-General v Cunard Steamship Co. (1887) 4 T.L.R. 177. The claim by the witness, although on oath, even if there be no doubt as to his credibility, is not sufficient. It must be shown to the Court, from the circumstances, and the nature of the testimony that is sought to be educed, that there is reasonable ground he may be implicated in some offence by his answer.” (emphasis added)
In BRP Engineering Ltd v Patterson (1990) 20 NSWLR 724 at 729 Giles J said:
“It should be observed that Brebner v Perry was referred to at an intermediate stage of the litigation in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547. In the Court of Appeal, Lord Denning said two things of present relevance. First, his Lordship said (at 574) that if the court thought that the witness had no reasonable ground for his claim but was making it as an excuse, for instance so as to help or hinder one side or the other, it would overrule his claim and compel him to answer, and his Lordship referred to Ex parte Reynolds (1882) 20 Ch D 294, from which Mayo J had cited an extract. His Lordship went on on the same page to refer to Brebner v Perry as a case where the witness had already given a like statement to the police, going on to say ‘and by giving evidence there was no increase in risk by his being made to answer’. This demonstrates the third line, namely that the purpose of the privilege is to protect the witness against the jeopardy of criminal charges, and the purpose will not be fulfilled where the answer to the question will not add to the jeopardy in which he already stands.”
In the present case, therefore, the trial judge was required to consider whether there was a real and appreciable danger of the appellant being put at risk of incriminating himself in relation to a charge of perjury. The material before the trial judge on which that assessment was to be made was very limited. Although the appellant answered the first question put to him, it was apparent that from then on he was intent on refusing to give any answer which was responsive to the questions asked of him. As a consequence, the trial judge was deprived of any explanation of the appellant’s remark that he had not met “this bloke”. The appellant did not give any further details and counsel for the appellant was unable to assist in this respect.
At no stage did the appellant himself suggest that his refusal to answer arose out of the possibility of self-incrimination in relation to a perjury charge. This issue was raised by the appellant’s counsel in the course of discussion with the judge. The appellant’s explanations for refusing to answer were limited to the comment that he had an appeal pending and the further consideration that he was “not a rat”.
It must be acknowledged that a witness may have more than one reason for refusing to give evidence. If one of those reasons is based upon a properly based claim to privilege against self-incrimination, the immunity nevertheless applies. However, it is apparent that the appellant had made up his mind before being called on the voir dire and at the trial that he was not going to answer any questions. It is against this background that his comment “I won’t give evidence, because I don’t know what – I haven’t even met this bloke” must be considered. In the absence of any further explanation of this answer and in the light of the other comments by the appellant that he was not going to give evidence under any circumstances, the answer appears to have been no more than an attempt to “fob off” the court.
It must also be borne in mind that the appellant had given extensive evidence at his trial of his relationship with Kamleh which he said extended over a period of approximately ten months prior to the killings. He gave evidence of their discussions before going to the apartment on the night of the incident and their dealings with each other after the killings had taken place. At his trial there was uncontested evidence of a considerable number of telephone calls between the appellant and Kamleh leading up to the alleged offences. The appeal against the appellant’s convictions was heard on 23 August and 9 September, 2002. The appellant’s appearance as a witness at the voir dire hearing was on 8 September 2002. The appeal was argued by the appellant’s counsel on the basis of the appellant’s version to the jury that he had gone to the apartment with Kamleh. These circumstances highlight the unlikelihood of the appellant seeking to undo all that he had said about his relationship with Kamleh by one remark. At the very least the remark would require some further explanation from the appellant before it could be viewed as the basis for a prosecution for perjury.
It was for the appellant to place sufficient information before the trial judge to enable a decision to be made as to whether the claim for privilege on this ground should be permitted. In my view this was not done.
The inadequacy of the material before the judge becomes apparent when consideration is given to that stage in the proceedings which requires the court to consider the claim for privilege by reference to each question which the appellant refused to answer. This is the procedure which was approved in Smith v The Queen (1991) 25 NSWLR 1 at 10.
The questions which the trial judge particularised as being relevant to the two charges of contempt are as follows:
“First charge of contempt (voir dire hearing)
1     Did you give evidence on the topic specifically of who was present at the time when Faraz Rasti was killed at your trial in March this year?
2     On the topic of who was present at the time Faraz Rasti was killed, did you give truthful evidence in the court in March?
3     Did you, at your trial in March this year, give evidence on the topic of your movements on the night of Sunday evening, 2 April and in the early hours of Monday, 3 April?
4     Were you present at the time when Faraz Rasti was killed?
5     Was there any other person or persons present when Faraz Rasti was killed?
6     At your trial in March this year a witness named Jeremy Ievins gave evidence that he saw two men enter the Grand Apartments at approximately 1 a.m. on Monday, 3 April 2000, were you one of those two men?
Second charge of contempt (trial)
7     Did you in March of this year, give evidence on oath on the topic of your knowledge of the death of Faraz Rasti and Rhiannon Ellul?
8     Who was present at the time when Rhiannon Ellul and Faraz Rasti were killed?”
As to the first question there is no doubt that the appellant gave evidence as to his knowledge of the deaths of the two deceased. He said so in answer to the first question he was asked on the voir dire. It cannot be said that a question which sought to elicit whether he gave evidence as to who was present on that occasion could implicate him in a charge of perjury in the circumstances alleged by the appellant’s counsel.
I have expressed the view that the answer given by the appellant on the voir dire did not raise a real possibility that the appellant was about to deny the essential features of the evidence which he gave at his trial. In these circumstances, I do not think that there was a real possibility that, by answering question 2, the appellant was going to provide evidence which would incriminate him in relation to a charge of perjury.
The answers to the third, fourth, fifth and sixth questions would not involve revealing whether the appellant knew Kamleh and would appear to have no relevance to the issue of possible perjury.
The appellant refused to answer the seventh question at the trial, but gave an affirmative answer to it on the voir dire hearing. The argument that an answer to this question would place him in further jeopardy cannot be accepted.
It is clear that an answer to question eight could include a reference to Kamleh. However, for the reasons which I have given, it is not apparent that an answer to the question would give rise to an increase in the risk of the appellant implicating himself in the crime of perjury.
In any event, as I have stated previously, I am satisfied that the reference to not meeting “this bloke” amounted to nothing more than part of an attempt by the appellant to avoid giving evidence.
It follows from what I have said that I agree with the conclusion reached by the judge appealed from that the particular circumstances of the case did not provide a sufficient basis for a successful claim of privilege against self-incrimination.
Can the claim for privilege against self-incrimination be maintained in relation to perjury?
The judge appealed from stated that the appellant’s claim for privilege could be defeated on another basis. He raised the possibility of an exception to the privilege against self-incrimination arising where the claim of privilege relates to the risk of incrimination in relation to perjury.
The case of Rice v Gordon (1844) 13 LJ Ch 104 was relied upon in support of this proposition. The case is only briefly reported. The facts are not altogether clear, but it would appear that the defendant was involved in a civil suit in relation to bill transactions between the parties. The plaintiff’s counsel moved for the production of some bills of exchange in the defendant’s possession. The report states that the defendant had been indicted for perjury “since the commencement of the suit”. No details of the alleged perjury are reported. The defendant opposed an order for production of the documents by reason of the possibility of self-incrimination.
The decision of the Vice Chancellor in its entirety is reported as follows:
“The question is a very short one. The Court must take care that the rule protecting a defendant from answering so as to criminate himself, is so used as not to destroy the justice which the Court administers. A defendant, after swearing falsely, may not protect himself by his own misconduct. In the case cited, which was before Lord Eldon, just the same set of circumstances occurred, but then it was not in the suit or with reference to it; this, on the contrary, has occurred since the commencement of the suit: if I were to do this, I should be holding out an inducement to perjury.
This case being again mentioned upon a subsequent day, -
The Vice Chancellor said, if I were not to grant this motion, I should be inducing a person to commit perjury, for the purpose of refusing to produce any documents which might injure his case.”
Rice v Gordon was referred to in Reid v Howard (1995) 184 CLR 1. In that case former clients of an accountant applied for orders compelling him to disclose information about his assets. They had entrusted funds to him for investment which, it was claimed, he had misappropriated. The accountant resisted the making of the orders for disclosure claiming privilege against self-incrimination. The High Court upheld the claim for privilege.
Deane J said at 5:
“ ‘The privilege against self-incrimination is deeply ingrained in the common law’ Sorby v The Commonwealth (1983) 152 CLR 281 at 309, per Mason, Wilson and Dawson JJ. It reflects ‘a cardinal principle’ Sorby v The Commonwealth (1983) 152 CLR 281 at 294, per Gibbs CJ which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.”
Deane J added at 8:
“If the privilege against self-incrimination were susceptible of being overridden by the courts in the interests of justice in the circumstances of a particular case, it would be arguable that the orders made by the Court of Appeal were justified, notwithstanding the deficiencies of the regime which they established. As has been seen, however, the privilege is not subject to judge-made exceptions or qualifications and, in the absence of statutory authority, cannot properly be disregarded or overridden by the courts either to meet the exigencies of hard cases or at all. There has been no suggestion of any applicable statutory provision overriding or qualifying the appellant’s privilege against self-incrimination in the present case.”
In their joint judgment Toohey, Gaudron, McHugh and Gummow JJ said at 12:
“The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without ‘real exception’ Triplex Safety Glass Co v Lancegaye Safety Glass(1934) Ltd [1939] 2 KB 395 at 403. See also Istel Ltd v Tully [1993] AC 45 at 67; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 at 18-19; Johnstone v United Norwest Co-operatives Ltd (unreported, Court of Appeal (Eng); 11 February 1994) at 10, per Dillon LJ; Hamilton v Oades (1989) 166 CLR 486 at 495, per Mason CJ. The argument advanced for the respondents in the Court of Appeal in support of an exception in civil proceedings brought by a beneficiary against a trustee appears to have its origins in a handful of old English and Irish cases. The cases are Mayor & Commonalty & Citizens of London v Levy (1803) 8 Ves Jun 398 at 403-404 [32 ER 408 at 410-4111]; Green v Weaver (1827) 1 Sim 404 at 426-433 [57 ER 630 at 638-641]; Robinson v Kitchin (1856) 8 De GM & G 88 at 90-92 [44 ER 322 at 323-324]; Attorney-General (Ire) v Daly (1833) Hayes & Jones’ Exch Rep (Ire) 379 at 383; Attorney-General (Ire) v Conroy (1838) 2 Jones’ Exch Rep (Ire) 791 at 797; Rice v Gordon (1843) 13 Sim 580 at 580 [60 ER 225 at 225]; Chadwick v Chadwick (1852) 22 LJ Ch (NS) 329 at 330-331; Bunn v Bunn (1864) 4 De GJ & S 316 at 317 [46 ER 941 at 941].
Some of those authorities (Mayor & Commonalty & Citizens of London v Levy (1803) 8 Ves Jun 398 [32 ER 408]; Attorney-General (Ire) v Daly (1833) Hayes & Jones’ Exch Rep (Ire) 379; Attorney-General (Ire) v Conroy (1838) 2 Jones’ Exch Rep (Ire) 791; and perhaps Chadwick v Chadwick (1852) 22 LJ Ch (NS) 329; 20 LT (OS) 272; 16 The Jurist 1060. The latter reports of Chadwick v Chadwick are fuller than that in the Law Journal) may indicate that there is a special exception to the privilege against self-incrimination where the incrimination relates to the offence of conspiracy. The judgments suggest that this is because of the complex factual matrix in such cases but, in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 448, Lord Fraser of Tullybelton, rightly in our view, said that these cases provide no clear principle on which any exception to the general rule could be based. Rice v Gordon (1843) 13 Sim 580 [60 ER 225] was an unusual case. An indictment was pending against the defendant for perjury committed in the very cause in which the plaintiff now sought production of documents the defendant had admitted to be in his custody. Shadwell V-C said that, if he were to refuse the motion for discovery, this would provide an inducement to a defendant to commit perjury at an early stage in the cause so as to prevent the court from administering justice in the suit.
. . . . . . .
In a series of recent decisions Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; Tate Access Floors Inc v Boswell [1991] Ch 512; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 (which was referred to with approval in Istel Ltd v Tully [1993] AC 45 at 66-67, per Lord Lowry) unsuccessful submissions have been made by reference to the nineteenth century decisions in support of exceptions, ranging from a broad discretionary exception to one in civil proceedings brought to recover money or property entrusted to a fiduciary. It follows from what we have said above that, in our view, those submissions were rightly rejected.
There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 346, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against ‘the peril and possibility of being convicted as a criminal’ Lamb v Munster (1882) 10 QBD 110 at 111. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.”

Rice v Gordon was also the subject of comment by Napier J in Crafter v Kelly [1941] SASR 237. Section 39 of the Primary Producers Debts Act 1935 provided that a person could be required to give evidence before a person authorised by a board set up under the Act and that the authorised person could compel answers to questions. The applicant refused to answer questions on the ground that the answers might incriminate him. The Full Court accepted the argument that the statute did not remove the privilege against self-incrimination. Napier J said at 248:
“I think that this covers the grounds taken in the argument, but the learned Chief Justice has called our attention to Rice v Gordon (1843) 13 Sim. 579: 13 L.J. Ch. 104, which suggests that the witness may not be entitled to protection against self-crimination in respect of perjury committed in the same cause or suit, and, if that is so, it becomes necessary to consider whether the defendant, in this case, is entitled to protection, if the inquiry is a continuation of the proceedings in which the declaration was filed.
. . .
Rice v Gordon is very briefly reported, and different expressions are attributed to the Vice-Chancellor in the various reports, but the sense of the decision is clear enough. The defendant had filed an answer in which he admitted his possession of the documents in question. There was (as that time) nothing that he could allege as a reason for withholding production, but subsequently he was indicted for perjury committed in the suit (presumably in the answer or afterwards), and his objection to produce the documents was that they might be used against him upon the trial of the indictment. This objection was over-ruled, and it might have been sufficient to say, that the defendant ‘adopts his own course of answering, and, having done so, he cannot withdraw from that course’ (M’Intosh v The Great Western Railway Coy. (1849) 1 Mac. & G. 74, at pp 77-78.
The practice with respect to the production of documents is laid down by Lord Cottenham L.C. in The Mayor of Berwick v Murray (1849) 1 Mac. & G. 530, at p 532, where he says:- ‘The object of the Court in directing the production of documents admitted to be in the defendant’s possession is to enable the plaintiff to make out his case; but it is the practice so to regulate such orders as to prevent any damage arising to the defendant. It is for this reason that no orders are more under the discretion of the Court.’ I have referred to other cases where the production of documents has been resisted, on the ground of incrimination, and the Court has required an undertaking from the claimant, or given the respondent the option of producing the document, or of suffering judgment to go against him by default, but in Rice v Gordon (1843) 13 Sim. 579, the order was made, without any qualification, under the discretionary power of the Court.
It does not follow, by any means, that the discretion would be exercised in the same way, upon an objection to answer interrogatories, or at the trial of the action.”
It is true that Rice v Gordon influenced Wood J in Emanuel v Emanuel [1982] 1 WLR 669, an ex parte application for an Anton Piller order, not to require any clause to be inserted in the order which would leave it open to the defendant to claim privilege against self-incrimination. (See also Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 1 WLR 1066 which also involved an ex parte application for an Anton Piller order). However, these cases were not followed in Memory Corporation Plc, Datrontech Hong Kong Ltd v Sukhbir Singh Sidhu, Sunsar Ltd [1999] EWHC Ch 197 (3 November 1999), a case in which Arden J undertook a comprehensive review of the relevant authorities.
Although not referring specifically to Emanuel v Emanuel and Distributori Automatici Italia SpA v Holford General Trading Co Ltd, the joint judgment in Reid v Howard does state that the privilege against self-incrimination has been seen as “a source of difficulty” in the making of Anton Piller and similar orders, particularly in copyright matters in the United Kingdom. The judgment continued (at 14):
“And notwithstanding its importance as a fundamental right, there has been criticism in the United Kingdom of the availability of the privilege against self-incrimination in civil proceedings, particularly when availed of to defeat a plaintiff’s rights (See, eg, Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 423, per Templeman LJ; at 439, per Lord Wilberforce; Sociedade Nacional de Combustives de Angola UEE v Lundqvist [1991] 2 QB 310 at 338, per Browne-Wilkinson V-C; Istel Ltd v Tully [1993] AC 45 at 62-63, per Lord Ackner. See also, Bentham, Introductory View of the Rationale of Evidence (1827) in Bowring, Works of Jeremy Bentham (1843), vol 6, pp 106-109).”
Despite these comments, the court in Reid v Howard was not prepared to acknowledge an exception to the privilege against self-incrimination which would have required the disclosure of the information sought in that case.
I refer to these decisions because they cast some doubt on the correctness of the comments made in Rice v Gordon and, in my view, that case does not provide a satisfactory basis for an exception to the privilege against self-incrimination which is relevant to the facts of this case.
In my view, there will be cases in which the witness can be required to answer even at the risk of implication in a charge of perjury. This situation was discussed by Byrne J in R v Guariglia [2000] VSC 13, a case not dissimilar from the present matter. It was unnecessary for Byrne J to decide that case on this ground because, as in the present case, answers to the questions asked of the defendant would not have given rise to the risk of incrimination on a charge of perjury. As Byrne J pointed out, the matter may turn on the question as to whether the waiver took place in the same proceedings.
I prefer to base my decision on the ground that it was not established that the answers to the questions would have had a tendency to incriminate the appellant in relation to perjury.
In my view the appeal against the convictions for contempt of court should be dismissed.
Sentence
The final issue for consideration is the appeal against sentence. I have said that the learned judge committed the appellant to imprisonment for 15 months to be served cumulatively on the head sentence of nine years imprisonment imposed for the offence of manslaughter. His Honour then increased the existing no-parole period from six years to seven years and three months imprisonment. In fashioning the sentence in this manner, his Honour utilised the provisions of the Criminal Law (Sentencing) Act 1988 (“ the Sentencing Act”) which he said applied to a penalty of imprisonment for contempt of court.
The first question which arises is whether the judge was correct in holding that the Sentencing Act applies to a penalty imposed for contempt of court.
“Sentence” is defined in s 3 of the Sentencing Act as:
“(a)the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)the fixing or extending of a non-parole period; or
(d)the making of any other order or direction affecting penalty.”
Section 4 provides:
“Subject to this Act, the powers conferred on a court by this Act are in addition to, and do not derogate from, the powers conferred by any other Act or law to impose a penalty upon, or make any order or give any direction in relation to, a person found guilty of an offence.”
Section 5 provides:
“Nothing in this Act affects the powers of a court to punish a person for contempt of that court.”
The applicability or otherwise of the Sentencing Act to contempt proceedings was one of the issues considered by the Full Court in Nicholls v DPP (SA) (1993) 61 SASR 31. In that case the appellant, a journalist, refused to obey an order of the District Court requiring him to identify the source of certain information which he had received. The appellant pleaded guilty to a charge of contempt which was laid following his refusal to obey the court’s direction. The judge, exercising the power to punish for contempt of court provided for in s 48 of the District Court Act 1991, ordered the appellant to be committed to prison for four months. In a report to the court the judge stated that he imposed a period of imprisonment for four months on the expectation that the appellant would receive remissions under the Correctional Services Act 1982 s 79 so as to reduce the actual time served to approximately three months. Section 12(1) of the Sentencing Act required the court to have regard to remissions when imposing a term of imprisonment.
The grounds of appeal raised the question whether the provisions of the Correctional Services Act and the Sentencing Act applied to a penalty imposed for contempt of court. The Full Court (Legoe ACJ, Perry and Mullighan JJ) held that neither the Correctional Services Act nor the Sentencing Act applied to punishment for contempt.
Legoe ACJ said at 41:
“Ground 3 raises the question as to whether the provisions of the Criminal Law (Sentencing) Act 1988 so far as they specify the guidelines to be followed in sentencing apply to an order pursuant to s 48 of the District Court Act 1991. The alternative forms of punishment are set out in s 48. ‘Sentence’ is defined in s 3 of the Sentencing Act in that it may include ‘punishment’ in some of the alternatives stated in s 48 of the District Court Act. However, in my opinion, an order under s 48 that a contemptor be imprisoned until the contemptor has purged the contempt is not a ‘sentence’ that can be fashioned by the provisions of the Sentencing Act, and particularly s 11. Section 11 says that imprisonment shall not be imposed unless certain matters are considered and apply. An order committing a contemptor to prison until the contempt is purged is clearly a complete stranger to the Sentencing Act but not the case here as not going to prison until purged (sic). Finally and most significantly s 5 of the Sentencing Act says that nothing in that Act shall affect orders for contempt of court. Counsel for the appellant argued that this section does not totally exclude punishment for contempt from the Sentencing Act. I do not accept that submission for the reasons I have just expressed. In my opinion the District Court is limited to the alternatives in s 48 and the guidelines for the sentencing of prisoners as set out in s 11 of the Sentencing Act do not apply to contempts. Therefore, I would reject ground 3 of the notice of appeal as the learned sentencing judge did not err in failing to have sufficient regard to the accused’s personal circumstances and the consequences of imprisonment on his family.”
After holding that s 79 of the Correctional Services Act did not apply to punishment for contempt, Perry J said at 49:
“Section 12(1) of the Criminal Law (Sentencing) Act 1988 obliges a court in fixing the term of a ‘sentence of imprisonment’ to have regard to any remissions of sentence to which the prisoner may become entitled under the Correctional Services Act. Section 5 of the same Act provides:
‘Nothing in this Act affects the powers of a Court to punish a person for contempt of that court.’
In my view, that section of the Criminal Law (Sentencing) Act should be construed so as to render the Act inapplicable to punishments imposed for contempt.
It must follow that the learned judge fell into error in that he fixed a term of imprisonment of four months, mistakenly thinking that after allowing for remissions, the appellant would serve an effective term of about three months.”
Mullighan J said at 61:
“In my view the Criminal Law (Sentencing) Act has no application to punishment for contempt of court. It is an Act, as stated in the preamble, ‘to consolidate and amend the law relating to sentencing and the enforcement of sentences …’. Section 5 of that Act provides:
‘Nothing in this Act affects the powers of a court to punish a person for contempt of that court.’
Nevertheless the ‘last resort’ principle is of application when punishing a person for contempt of court.”
Mullighan J was also of the view that s 79 of the Correctional Services Act had no application to the case. He said at 63:
“In my view the appellant is not a prisoner who is serving a sentence of imprisonment within the meaning of s 79. He has been committed to prison for a specified term. Section 48 of the District Court Act does not provide for a sentence of imprisonment but for the punishment of a contempt by committing to prison. This distinction is to be observed in s 22(2) of the Correctional Services Act which provides that ‘a person who is sentenced to imprisonment or committed to prison’ will be imprisoned in such correctional institution as the Chief Executive Officer of the Department of Correctional Services determines. Section 39 provides for the release from prison of a contempt prisoner who purges his or her contempt. A contempt prisoner is defined in s 4(1) as a person committed to prison, or sentenced to imprisonment, for failure to comply with an order for payment of a pecuniary sum, or for contempt of court. Where fines are imposed it is common for a sentence of imprisonment to be imposed in default of payment of the fine. The distinction between a person sentenced to imprisonment and a person committed to prison is necessary. A sentence is a final order of a court which, usually, may only be varied on appeal. Committal to prison for contempt of court even for a fixed period is always subject to variation. Rule 93.10 provides that where a person, such as the appellant, is committed to prison for a specified period, the court may order his discharge before the expiration of that period. No doubt the learned judge had this power in mind when he made the rider to his order. It was inadequately expressed but it clearly meant that if the appellant was prepared to disclose the source, an application under r 93.10 would be favourably received.”
The judge appealed from regarded the views expressed by the court in relation to the non-applicability of the Sentencing Act as obiter dicta. His Honour then came to a conclusion contrary to that which the court arrived at in Nicholls’ case by deciding that both the Sentencing Act and the Correctional Services Act were applicable in the case of punishment for contempt by way of imprisonment.
In the course of his reasoning on the effect of Nicholls’ case the judge appealed from said:
“First, essential to the conclusion that such imprisonment is not a sentence of imprisonment is the fact that the period of imprisonment, although fixed initially, is, by virtue of the Court’s powers, necessarily uncertain. Section 79(1) of the Correctional Services Act by its own terms excluded from the operation of the section the case of ‘a prisoner who is serving, or is liable to serve, a sentence of indeterminate duration’. That is defined as meaning ‘detention in custody until further order of a court’. Although on its face the order in Nicholls was imprisonment for four months, for reasons explained in Nicholls, it was in reality an order for imprisonment until further order subject to a pre-determined maximum of four months. Because of the qualifying provision in s 79, it was not necessary to decide that the order was not a ‘sentence of imprisonment’ in order to conclude that s 79 of the Correctional Services Act did not apply to it.
Secondly, other cases to which the Full Court appears not to have been referred to in Nicholls, or which have been decided since Nicholls, suggest that committal for a fixed term for contempt is indeed a sentence of imprisonment.”
The comments made by the judge appealed from in relation to the first of these points arose from a passage in the sentencing remarks of the judge in Nicholls’ case where his Honour said at 37:
“I also considered that it was inappropriate to sentence you until you purged your contempt. You are therefore sentenced to four months imprisonment. Of course, if at any time you wish to purge your contempt by disclosing your source, it is a part of this order that your term of imprisonment will be at an end.”
I do not accept that the order in Nicholls case was a “sentence of indeterminate duration” for the purposes of the Correctional Services Act 1982. It is appropriate to have regard to the history of the provisions relating to indeterminate sentences in both the Correctional Services Act and the Sentencing Act. Prior to the enactment of the Sentencing Act in 1988, a “sentence of indeterminate duration” was defined in s 4 of the Correctional Services Act as “detention during Her Majesty’s pleasure or the Governor’s pleasure”. The circumstances in which such detention could be ordered at that time were in relation to offenders incapable of controlling their sexual instincts (Criminal Law Consolidation Act 1935 s 77(a)) and persons declared to be habitual criminals (Criminal Law Consolidation Act 1935 ss 319-328).
When the Sentencing Act was enacted, the provisions relating to these categories of offenders were inserted in that Act and the sections in the Criminal Law Consolidation Act referred to above were repealed.
The new provisions were inserted in Division 3 of the Sentencing Act which was entitled “Sentences of Indeterminate Duration”. The categories of habitual criminals and offenders incapable of controlling sexual instincts were inserted in that Division as ss 22 and 23 respectively. Section 22 was repealed as from 27 July 2003. At the same time, the definition of “Sentence of Indeterminate Duration” in s 4 of the Correctional Services Act was amended to read “detention in custody until further order of the court” so as to harmonise with the definition in the same terms in s 4 of the Sentencing Act.
The clear purpose of these amendments was to incorporate the provisions relating to these two well established categories of indeterminate sentences in to the Sentencing Act. Against this background, it cannot be said that there was an intention to include in the definition of “a sentence of indeterminate duration” the type of penalty for contempt which was imposed in Nicholls’ case.
Apart from these considerations, I do not think that the penalty in Nicholls’ could be described as “indeterminate” in any relevant sense. It was a sentence of imprisonment for four months. The sentence was finite in its terms. The trial judge was simply commenting on the fact that there may be an opportunity for the appellant to be released earlier. The remarks (at 47) on this aspect of the sentence by Perry J are pertinent:
“Before dealing with the grounds of appeal, I note that it is doubtful whether the learned judge had power to make an order containing the terms identified in the last sentence of his reported remarks as set out above. In fact the sealed order committing the appellant for contempt did not include the rider there mentioned, namely, that the term of imprisonment would ‘be at an end’ if at any time he disclosed the source. The sealed order only directs that the appellant be imprisoned for four months. It is true that under r 93.10 ‘where a person in contempt is committed to prison for a specified period, the Court may order his discharge before the expiry of that period’. But to bring that rule into operation, a separate application would be necessary, which would need to be considered on its merits, or possibly the court could act on its own motion, if there had been a change of circumstances. The learned judge had power to commit to prison ‘until the contempt is purged’, having regard to the terms of s 48(1)(b) of the District Court Act, but the power to do so is expressed as an alternative to committal to prison for a specified term, and it would not appear that the section authorises a combination of both, that is, an order committing for a specified term which would terminate upon the contempt being purged.
While it is true that the order appealed from is the order in the form that is sealed, at least, unless it is corrected under the slip rule, it seems to me that it is doubtful whether, as expressed, the order is a valid order. But, as will appear, in my opinion, the order should be quashed for other reasons. It is, therefore, unnecessary further to deal with that aspect of the matter.”

As to the second point raised by the judge appealed from in the passage set out in [74] the cases referred to are concerned with legislation which differs in relevant respects from the South Australian provisions. The general comments in these cases to which attention was drawn would be more relevant if it was not for s 5 of the Sentencing Act.
In my view, Nicholls’ case is a binding authority on the court in respect of the sentence issue under consideration in this case.
But, in any event, I respectfully agree with the views expressed by the members of the court in Nicholls’ case on this issue. The purpose of the Sentencing Act is, as the preamble states, “To consolidate and amend the law relating to sentencing and the enforcement of sentences”. Whilst I acknowledge that a conviction for contempt of court can be described as a conviction for an offence, the provisions in the Sentencing Act are more appropriate to sanctions imposed under the general criminal law, as opposed to contempts of court. For the reasons which follow, they are far less adaptable to punishments for contempt of court.
When considering the nature of the power to punish for contempt in A.M.I.E.U. v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Gibbs CJ, Mason, Wilson and Deane JJ said in their joint judgment at [28]:
“These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v Crown Office (1970) 2 QB 114, at p 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.”
The distinctive nature of the power to punish for contempt is apparent from the Supreme Court Rules. The court may punish contempt of court by committal of the person to prison or fine or both or by the imposition of a bond (r 93.08). The court when making an order for committal may direct that the execution of the order of committal be suspended until such period and on such terms or conditions as the court thinks fit. Upon compliance with those the terms and conditions during that period the order for committal may be discharged (r 93.09). Where a person in contempt is committed to prison for a specified period, the court may order his or her discharge before the expiry of that period (r 93.10). Where the person is to be discharged under r 93.10 prior to the expiry of the original period fixed for his or her imprisonment, the discharge may be unconditional or conditional upon such terms and conditions as are fixed by the court (r 93.12). There is a specific power to revoke a suspension order (r 93.13).
There are some difficulties which arise when a penalty for contempt is imposed on a person serving an existing sentence and, as the circumstances of the present case illustrate, the Sentencing Act would overcome them. However, it is my view that Parliament recognised the unique nature of remedies appropriate to contempts of court and determined that the general sentencing requirements of the Sentencing Act were not to apply to them. In my view, s 5 of the Act is a clear expression of this view.
I would reject the argument that the penalty is manifestly excessive. The appellant may have been placed in a difficult position in being required to give evidence against Kamleh when the appellant was under sentence for manslaughter. However, he had already given the evidence which the prosecution sought to elicit from him at his own trial.
The contempts of which the appellant was found guilty were serious in that they involved a refusal to obey directions of the court in a matter which had important implications for the administration of justice.
Nevertheless, if my view about the inapplicability of the Sentencing Act is correct, some adjustment will have to be made to the sentence.
I have said that the penalty imposed for the contempts of court was imprisonment for 15 months and the non-parole period in relation to the offence of manslaughter was increased by 12 months. The appellant’s release on parole will be disrupted as a result of the orders which I propose and I think a slight reduction should be made in the penalty for the offences of contempt as a result.
I would dismiss the appeal against conviction. I would allow the appeal against the penalty imposed and set aside the orders made by the judge appealed from. I would impose a global penalty of imprisonment for 12 months in relation to the two contempts and direct that this period of imprisonment commence when the parole board orders the release of the appellant in respect of the sentence for manslaughter or, if not released on parole, upon expiry of the head sentence of 9 years.
ANDERSON J. I agree with the orders proposed by Duggan J. I also agree with his reasons for making these orders.