DPP v John Fairfax & Sons

• 1 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

TUESDAY 23 MAY 2000 70207/98 - REGINA v WENDY LYNNE DUNCAN

1 The contemnor, Wendy Duncan, in a judgment delivered by me on 2 March 2000 was found guilty of contempt of court arising out of her refusal, when a witness, in the trial of Regina v Constantine Georgiou and Bruce Malcolm Harrison, without proper cause to answer questions which were material to the matter before the Court which had been put to her. 2 A number of opportunities were provided to her in those proceedings to answer questions on paper and she has since been given opportunities to express her reasons, to express remorse or even apologise to the Court. I do not wish to canvass the reasons in that judgment and the grounds upon which I made that finding but at page 4 of my judgment I said: "I do not accept that the contemnor was being frank with the Court. She has now expressed no remorse. She has not called any evidence. She has not tendered any apology. The only matter that she has placed before the Court is a contention of duress based on her evidence and a series of newspaper articles. There is no evidence she has given that the Court can rely on that in fact she was under duress or threat in respect of the very specific questions that she was asked and I reject the contention that the defence of duress has been made out and since nothing else has been put before the Court to show why she should not be dealt with for contempt, I find on the evidence tendered before the Court that the contemnor should now be dealt with for her contempt." 3 The trial at which the contemnor was called as a defence witness concerned an incident that occurred at the Black Market Cafe on 9 November 1997 at Chippendale involving members of the Bandidos Motorcycle Club and the Rebels Motorcycle Club. The incident resulted in the death of three members of the Bandidos and one member being seriously injured. 4 The accused Bruce Malcolm Harrison and Constantine Georgiou were convicted of the murder of Michael Kulakowski, Sasha Milenkovic and Rick De Stoop and the attempted murder of Robin David. 5 A hearing in relation to these contempt proceedings occurred. Subsequent to a change of legal advice notwithstanding that the proceedings were complete I allowed a further opportunity to Mr Mark Rumore, a solicitor who appears for her today amicus curiae, to address the Court and to tender further additional evidence. The Court is grateful for the assistance provided by Mr Rumore. The fact still remains, however, that the contemnor continues not to make any apology to the Court nor to offer an appropriate explanation to the Court. 6 As I indicated at the trial, s.128 of the Evidence Act 1995 provides an opportunity for a witness to obtain a certificate so that any evidence given by that witness can not be used in evidence against them. That opportunity continued and the contemnor elected not to give evidence. 7 It is of concern to the Court that at the time of the hearing the contemnor had been subject to charges for concealing an offence and for accessory after the fact but it was clarified during the course of the hearing that the only charge that was the subject of a bill for an indictment was concealment of a serious offence. I do however understand the concern of a witness who, although only subject to the finding of a bill on one charge, might consider herself at risk in respect of another charge which had been laid against her by the police and I can not ignore the fact that even though people may give evidence which can not be used against them, the very fact of giving evidence may bring them into a circumstance where additional information provided may be used. 8 The contemnor is not obliged to incriminate herself. She is, however, if she is protecting others, which is an obvious possibility here, obliged to assist the police and to give evidence, not to refrain from so doing but I do not take that factor into account in what I am to determine here. 9 The circumstances surrounding the evidence that the contemnor gave and about which she was to be cross-examined were that subsequent to the events at the Black Market Café, on 3 February 1998, officials of the Australian Customs and Immigration Department conducted a random check on the vessel Arafura at Botany Bay which was en route to Korea via Japan. The prisoner, Georgiou, was found on the ship carrying an altered stolen passport and a false New South Wales driver's licence in the name of Johnifern Marian Ross and in excess of ten thousand dollars in cash. Georgiou, who continued to assert his correct name was Ross, was detained and after the police had been contacted to find out his true identity he was arrested. Admissions were made during the course of the trial. 10 The contemnor when asked in several questions by the learned Crown Prosecutor about where she was staying in the three month period of the incident at the cafe until the time of Georgiou's arrest. She gave evidence that she stayed for some period at her sister's house and then with two friends and that her daughter had been staying with the daughter's grandparents. The contemnor was asked a number of questions about friends she was staying with during part of that period and was asked to identify who those friends were. The contemnor deliberately refused to answer questions, as I have said, despite being given ample opportunity to do so. Her refusal and the reasons that she gave were different and varied as to why she would not answer. 11 Contempt of court arises as a common law offence for which there is no formally prescribed penalty, although the enactment of the Crimes (Sentencing Procedure) Act 1999 does prescribe for an offence for which there is no other penalty, imprisonment for 25 years. I do not however take that limit into account in assessing the question of the penalty to be imposed. 12 The only other restriction is the Bill of Rights 1688 which continues to apply in New South Wales. That statute requires generally no cruel or unusual punishment should be inflicted. There are a number of options open to the Court to punish a contemnor by way of committal to prison or fine. The committal to prison can be by way of periodic detention or fixed term or a sentence may be suspended or the Court may impose community service or home detention. The Court can also impose a term of imprisonment and suspend that imprisonment on appropriate terms and conditions. 13 Part 55 rule 13 states the Court's power but does not purport to limit or in any way exhaust that power to deal with contempt. The purpose of a penalty for contempt includes punishment and deterrence of the particular contemnor and the deterrence of other possible contemnors and the public denunciation of the relevant conduct. In that respect I refer to DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741G. 14 The Court of Appeal in The Registrar of the Court of Appeal v Gilby, unreported, 20 August 1991, held there are five factors relevant to the assessment of a penalty for contempt involving a refusal to give evidence. The five factors identified by the Court of Appeal v Gilby are, first, the seriousness of the contempt; secondly, where the contemnor was aware of the consequence of what she proposed to do; thirdly, whether the contempt was committed in the context of serious crime; fourthly, whether the contempt was motivated by fear of harm if evidence were given; and fifthly, whether the contemnor had received a benefit by indicating an intention to give evidence. 15 These factors were considered and adopted by the Court of Appeal in The Registrar of the Court of Appeal v Raad, unreported, 9 June 1992 and The Registrar of the Court of Appeal (New South Wales) v Craven (No.2) (1995) 80 A Crim R 272. 16 In Gilby the Court said at page 27: "It may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the law will be, and will be seen to be, punished."

17 That case, like Smith v Regina (1991) 25 NSWLR 1 related to a failure of a contemnor to give evidence which was treated as serious contempt in the face of the Court. 18 The contemnor is some 31 years of age. She was the de facto wife of Constantine Georgiou and the Court has been advised some two weeks ago became his wife. Since 1997 her young daughter has not resided with her but with the daughter's paternal grandparents. The contemnor presently resides with a relative of her husband's and is performing household duties. When she can she sees him and looks after her daughter and hopes to be a full-time mother again when pressures have subsided and the Court matters are finalised. She apparently has committed no other offence and is a person of otherwise good character. 19 The contemnor was brought up in an excessively strict, denominational religious background, being one of twins in a family of eight. When she was 17 she rebelled and left home. Her mother passed away some eight years ago as a result of depression and a brain tumour and the contemnor has only recently made contact with her father, who lives in the country. 20 The contemnor does not have contact with her siblings, except her twin sister who suffers from depression and psychotic episodes. The contemnor has for some years regularly looked after her twin sister who is incapable of leaving home by herself and requires regular, close support. Her twin sister lives in a de facto relationship but she works night shift and she tends to be afraid at home alone, thus requiring the contemnor to care for her. 21 The contemnor has had three difficult relationships in her past prior to her present relationship with her husband. Her husband, of course, has been sentenced to an extremely long period of imprisonment. Her first relationship, which resulted in the birth of her daughter, terminated when her daughter was about one year of age due to incompatibility. The second and third marriages involved instances of violence and, it is contended, a incident of rape. The present marriage is strong and she describes her husband as a caring and supportive person. 22 The contemnor, in a report which I ordered and which was furnished to the Court, told the Probation and Parole Service that she was minimally involved with the bikie group and her refusal to disclose the friend's name with whom she was residing was not due to a sense of obligation or loyalty to either her husband or the group but was out of fear of retribution, including the possibility of being killed. I do not, as I have indicated, accept that evidence, although I do indicate that the circumstances of a high profile trial created pressures on the contemnor. 23 I have been provided with evidence, which I accept, that the contemnor is going through a period of stress and depression and that she is on medication to help her sleep and that she suffers from migraines as a result of her stress as she is not adapting to the process through which she is going. She also suffers from asthma. 24 I also accept the fact that she is subject to charges arising out of the proceedings in which she was a witness and that has inevitably a serious effect on her and I also accept that the separation from her daughter is a serious matter. 25 I am conscious that in sentencing the Court ought not, in fixing a sentence, take into account the effect on third parties, be it her daughter or her sister. Sentencing is a process which inevitably impacts on other people and although I am conscious of the pain to her of deprivation of liberty I must not in fixing a sentence cause that to deflect the Court from the serious task that the Court is carrying out. 26 I have been today provided with the evidence of Doctor Terry Cook, a psychiatrist, which evidence I accept, that the contemnor's sister suffers from a chronic depression secondary to Attention Deficit Disorder and that in recent times the contemnor's sister has developed a psychotic illness and as a result of asthma treatment a mood disorder with psychotic symptoms being precipitated. The contemnor's sister remains a danger to herself and others and the contemnor has been able to assist but, as I have indicated, that is not a factor which should displace the Court's duty in respect of a serious offence. 27 I do not think that a fine is appropriate, nor, as has been respectfully submitted, community service orders are appropriate in the present case. A good behaviour bond for someone who has willfully and deliberately committed a contempt of the Court does not send a message of direct or general deterrence to the community. This is not a matter where a suspended sentence is a sufficient deterrence to further offences. 28 This contempt occurred in the course of highly publicised and very serious proceedings. It is the duty of this Court to denounce the actions of the contemnor and any like or contemplated possible similar actions, not only to demonstrate to her but to demonstrate to the community the seriousness of the actions that were undertaken. 29 The legal system in our community operates with few means whereby its authority and standing in the community could be protected. One of the few means available to the Court system is to punish serious contempt with an appropriate penalty. As the Crown has submitted, the actions of the contemnor strike at the heart of the justice system, particularly the criminal justice system. 30 I have taken into account the effect on the contemnor of her previous good character, the pressures that were on her inevitably during that trial and the fact that she was giving evidence subject to a charge of a serious nature. I have taken into account the effect on her of her personal circumstances and her concerns for her daughter and her sister that have led her to make other arrangements for care of her daughter at the moment. 31 I do however consider that the offence needs clearly to be denounced. In considering the options of the Court for sentence I can not see, other than the matters that I have covered, any other matters which may be placed before the Court in mitigation of penalty in the light of her ongoing refusal to apologise for or show remorse for her contempt. 32 The Probation and Parole Service report has indicated that home detention would be appropriate in the circumstances of the contemnor and the Crimes (Sentencing Procedure) Act 1999 obliges the Court to look at alternatives to full-time imprisonment and indeed imprisonment. I consider that in the present circumstances the seriousness of this offence obliges the Court to impose a sentence of imprisonment and in the light of the finding of the Court there is no other alternative to a sentence of imprisonment. 33 I have given serious consideration to the question of whether periodic detention is here appropriate. The contempt however here in my view is, notwithstanding the circumstances that I have outlined, not such that I can use that alternative procedure. 34 I do not think that any home detention or any other procedure can clearly denounce a matter going to the heart of the criminal justice and indeed the justice system. 35 Taking into account the matters that I have outlined and granting you as much leniency as the Court can in the opportunity that I have provided to you, you have been found guilty beyond reasonable doubt of contempt of this Court. You are convicted of contempt. 36 You are sentenced to a fixed term of two months imprisonment to date from today, to expire on 22 July 2000.

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