Applicant v Respondent

1 Zarah Garde-Wilson, you are a solicitor who, on the evidence available to me, is intelligent, hard working and determined to represent your clients to the best of your ability. These are valuable attributes in any legal practitioner. Another such attribute is that combination of learning, technical legal skills and common sense which, appropriately mixed, results in sound judgment. None of us get the combination exactly right all the time. On some occasions, the results of our failures are more damaging than on others.

2 On 7 October 2005, you were called by the Crown to give evidence in the trial of Keith George Faure and Evangelos Goussis for the murder of your de facto husband, Lewis Caine. You refused to answer any of the questions then put to you, even questions about your well-known relationship with the murdered man.

3 I accept that your general refusal, although lacking objective justification, was based upon a fear of retribution. The accused were charged with the murder of Mr Caine. You suspected that they were guilty. You had done your duty by informing the police of the basis of your suspicion. As the police acknowledge, some of the information you gave them was given in confidence. You thought that knowledge of this had come to the accused. You knew that each had prior convictions for serious crimes involving violence. You also had evidence of threats made by one of them against you, you had received unsettling telephone calls from Barwon Prison (unsettling because, when you answered, the other end was silent although it appeared that a prisoner was holding the telephone) and you discerned hostility in the faces of the accused when they saw you in court.

4 The most troubling threat, however, and the one upon which your fear is largely based, did not come directly from either accused man. It came to you from Mr George Defteros, who was then the senior partner in the law firm by which you were employed. He told you of a conversation which he had had with Keith Faure. This (as you describe it in an affidavit sworn by you on 6 October this year) "was to the effect that I should stop talking about him [that is, Faure] otherwise Defteros, and by inference I, would be killed." This account is corroborated by a recorded conversation which Mr Defteros had some days later with a registered police informer. Mr Defteros told the informer about an exchange he had had with Faure. During that exchange, Mr Faure had claimed that you were implicating him in the murder by telling others of a meeting attended by both him and the deceased which had been planned for the night of Mr Caine's death. In his conversation with Mr Defteros, Mr Faure (according to Mr Defteros) added that you should "keep your mouth shut" and that, if you did not, Mr Defteros "would be blamed".

5 It seemed to you that these threats placed you in real danger. As a result, you applied for admission into the witness protection program. By doing so, you committed yourself not only to giving evidence if the application were granted, but also to drastic changes in the normal course of your life. These changes would have demanded sacrifices which the vast majority of us would be most reluctant to make. Genuine fear was, I accept, the motive for your application. I also accept that the application demonstrated willingness to give evidence provided your safety was as far as possible guaranteed.

6 Consideration of applications for admission into the witness protection program normally take weeks or months. Your application was made on 6 October 2005, 10 days after you were served with a subpoena to give evidence at the trial, and some 17 days after you first learned that such attendance might be required. Nevertheless, because the date for your attendance at court had then been fixed for 7 October, the application was processed with great speed. You were informed, when in court on 7 October, that the application had not been successful. This was so despite the fact that the psychologist to whom you were referred believed your fear to be genuine.

7 I take it that the application was refused because those responsible for the assessment came to the conclusion that you were not in such danger as to warrant your admission. The speed with which the assessment was necessarily undertaken, however, is I think a proper basis for according its outcome less weight than it would otherwise have. I do not regard the result of the application as evidence that those who rejected it necessarily concluded that you were not at any risk. Nor do I think that you were bound, following the failure of your application, to entirely dismiss your fears.

8 Many people in your position, however, will have fears similar to yours. Each case will of course be different, not least because the depth of the fear will differ according to the temperament of the persons subject to it. The proper administration of the law would be impossible if the more fearful could for that reason alone avoid the obligation of giving evidence in court. You, as a legal practitioner who by oath or affirmation have bound yourself to uphold the rule of law, had and have a particular duty to assess any risk as objectively as you can, and respond to it with a firmness of mind above that required of most others. The rule of law is an essential element in any civilised, properly functioning community. The quality of the courage required to defend it must in circumstances such as those you faced on 7 October be judged against the importance of fair criminal proceedings to the maintenance of the rule of law; and, accordingly, against the importance of giving truthful evidence in such proceedings. The community may properly look to legal practitioners to shoulder in this respect a responsibility greater than that of persons who do not make their livelihood from the law.

9 There are cases that suggest that, unless the circumstances are wholly exceptional, an immediate custodial sentence is the only appropriate punishment for an interference with the administration of justice. I have therefore considered taking that course. In this context, the need for general deterrence has assumed great importance. Your case must not send a message which irresponsible sections of the media might encapsulate in, for example, a misleading headline such as "Solicitor found guilty of contempt walks free".

10 This is not the purport of these sentencing remarks. You are guilty of an interference with the administration of justice. I endorse the proposition that, in those circumstances, imprisonment is almost always the appropriate punishment.

11 Your case, however, is exceptional. In a sense, this is because the prosecution has made it so. In February 2004 the Victoria Police were served with two summonses to produce documents before the Melbourne Magistrates' Court at Mr Faure's committal proceedings on 2 March 2005. One of those summonses sought the production of documents in the possession of the police which contained or referred to statements made by you. The police objected to producing them. They did so on public interest immunity grounds. They claimed, in terms I have no reason to doubt, that the information to be found in the documents was provided in confidence by you and its disclosure would place you in danger.

12 I do not criticise the police for taking this position. But you were thereby entitled to assume that you would not be called to give evidence during the course of which that same information would be disclosed. As it happened, you were not required to give evidence at the relevant committal proceedings, and were not until about mid September this year given any indication that you would be called as a witness in the Faure/Goussis trial. Then, on 26 September 2005, you were served with a subpoena to attend. You subsequently spoke to a Ms Anscombe of the Office of Public Prosecutions and informed her that you would discuss your position with the prosecutor so long as a named member of counsel was present. The suggested interview was then cancelled by the prosecution.

13 I do not suggest here any deliberate wrongdoing on anyone's part. The consequence, however, was that an opportunity to discuss the evidence you might properly give at the trial, excluding the evidence which the police refused to produce at the committal, was lost. In the event, when you entered the witness box you did not know to what extent you might be required to traverse material which the police themselves considered should not be adduced.

14 Your position at that point was not an impossible one. In my opinion, you had no right to refuse to answer any questions. But you were placed in the very difficult situation of not knowing what to expect.

15 The proposed discussion with the prosecutor may have achieved nothing. On the other hand, it ought to have achieved much. Had both sides been properly aware of the relevant law, and had they approached the conference with the requisite degree of co-operation, a solution could have been reached that avoided your being in contempt of court while enabling the Crown to adduce through you evidence of value in its case against the accused. I must assume that, for your part, you would have done all that was reasonably open to you to achieve these ends. I come to this conclusion because your actions since becoming aware of the Crown's intention to call you as a witness suggest that, for your part, properly advised, a co-operative approach would have been adopted and the appropriate steps would thereafter have been taken.

16 May I add another word at this point. Just as the results of this case should not lead to media suggestions that any interference in the administration of justice is not a very serious matter, so should there be no suggestion that the prosecution is wholly at fault. This case is too important for anything other than balanced reporting.

17 Your counsel submitted that you were peculiarly exposed to threats and their subjective effect because of your relationship with Mr Caine. There is some force in this argument. In the end, however, it does not in my opinion much reduce the seriousness of your offence.

18 It was also submitted that, to quote your counsel, your "evidence had a very minor role to play in the trial". I accept that the issue is a relevant one, but I reject the submission in this case. It is only with the wisdom of hindsight that we know that your evidence did not tip the scales in favour of the verdicts to which the jury eventually came. While some evidence will clearly be vital, and some close to irrelevant, it will not be possible in many cases to come to a reliable conclusion about the significance of particular items of evidence without somehow getting into the minds of the jury. It is therefore often unwise, if not impossible, to assess the seriousness of a refusal to give evidence by reference to the supposed value of the evidence itself. In my opinion, this case is an example.

19 I have before me the separate reports of three different psychologists. Each of them indicates that, at the relevant times, you were placed under an unusual degree of stress. I accept that this affected your capacity for judgment, and take that fact into account in deciding whether any penalty should be imposed. It is not in my opinion relevant on the question of conviction.

20 It has been submitted on your behalf that the recording of a conviction would itself constitute a penalty. This, it seems to me, is undoubtedly right. It is also right, I think, that such a penalty should be imposed. I have said enough both today and in my judgment of 9 November 2005 to indicate the seriousness with which the courts must regard a refusal by a legal practitioner to give evidence when called upon to do so. A failure to record a conviction would, in these circumstances, send the wrong message in a situation in which general deterrence is vital.

21 In deciding upon whether any further penalty is appropriate, I must take into account the many mitigating factors to which I have already referred. To these I add your youth, the absence of any prior convictions and the fact that you sought and obtained advice from a number of appropriate sources before deciding upon the course of action which on 7 October you took.

22 In the result, I am of the opinion that, in the exceptional circumstances of this case, no punishment above that of the conviction itself is warranted. I will therefore order that a conviction be recorded but that no further penalty be imposed.