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File Number(s): 2026/00289925

Publication restriction: Nil

ex tempore JUDGMENT (Release application) (REVISED)

1. HIS HONOUR: I have given this particular matter a great deal of anxious thought over the last couple of days, and what has been agitating my thinking is that I am not in the position of a judge presiding in a trial by jury in Mr Lardner's case. I am the tribunal of fact as well as a judge of the law in this particular case and the evidence is not closed. I have not heard any evidence that may in due course be lead on behalf of the defence and I have not had the benefit of counsel's submissions on the merits of the principal case. Nor have I had the time for mature reflection which I will have when “on verdict” before bringing in my decision with the verdict which follows from the reasons I give. There is no doubt, as I have said more than once, the failure to comply with the subpoena about which I was satisfied on the balance is capable of being a contempt in the face of the Court and I have ample power to deal with the matter under the Supreme Court Rules 1970 (NSW) (“SCR”).

2. However, no charge has yet been formulated, and Ms Davis has not been given the opportunity to make her defence. I remind myself that the decision I made under s 194 of the Evidence Act 1995 (NSW) was on the balance of probabilities. Obviously the failure to comply with a subpoena in relation to a serious criminal charge is a form of criminal contempt which as with all cases of contempt must be established beyond reasonable doubt. Moreover, the “companion principle” applies and the accused contemnor has the right to silence.

3. Quite apart from those important considerations the modern trend is that a trial judge should be slow to initiate summary proceedings for contempt before himself or herself. The rules of course make ample provisions for reference to the Prothonotary and for the Prothonotary to take the advice of the Crown Solicitor about whether a charge should be laid: Pt 55 r 11 SCR. The question of whether I should take that step is an administrative decision which I alone must make in accordance with the decision of the Court of Appeal in Killen v Lane [1983] 1 NSWLR 171.

4. I am also aware that at the close of proceedings yesterday I formed a strong provisional view that Ms Davis was constructively failing to answer questions which is itself of course a contempt in the face of the Court. That strong provisional view was formed from my vantage point as the trial judge. There is an important difference between forming a conclusion about whether someone is a contemnor, on the one hand, and the need for the appropriately stern admonishment which a trial judge may properly give any witness who appears palpably not to be co-operating with the trial process, on the other.

5. I have at the front of my mind, may I say with great respect, the wise observations of Kirby P, as his Honour then was, in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 452. His Honour said:

"...when a judge deals summarily with an alleged contemnor he may at once be a victim of the contempt, a witness to it, the prosecutor who decides that action is required, and the judge who determines matters in dispute and imposes punishment. The combination, in the judge, of four such inimical functions is not only unusual, it is so exceptional that, though it may sometimes be required to deal peremptorily with an emergency situation, those occasions will be rare indeed. Especially will they be rare where, as in this State, a facility is provided in the Court of Appeal to relieve the judge of such an embarrassing concatenation of functions."

6. For similar reasons, in Keely v Brookings (1979) 143 CLR 162 at 174, Stephen J cautioned against the use of the summary procedure: His Honour said

“[it] should rarely be resorted to except in those exceptional cases where the conduct is such that ‘it cannot wait to be punished’ because it is ‘urgent and imperative to act immediately’ to preserve the integrity of a ‘trial in progress or about to start’.”

7. Although Kirby P’s dictum is applicable generally, it seems to me that here, where I am sitting in a serious criminal trial on indictment, which on the application of the accused, by and with the consent of the prosecution, I have ordered to proceed by judge alone, the conflict, which his Honour describes so eloquently, is exquisitely aggravated or enhanced.

8. Obviously, at the end of the trial, I will need to retire to consider my verdict, during which time I will be required to weigh and assess all of the evidence given in the case, and to make decisions about what part of the evidence is acceptable to me, and what part of the evidence I reject. As juries are always instructed, it will be open to me in that process to accept some of what a witness says, but to reject other parts of it. It will be necessary for me to weigh each witness's evidence in the overall scheme of the evidence that has been led in the case, for the purpose of determining reliability to make necessary decisions of fact. It would seem to me to be inimical to the function I am to perform for me to make any decision now about whether anyone, including Ms Davis, should be referred to any authority, including the Prothonotary, for a consideration of whether punitive proceedings should be taken against that witness.

9. For instance, were I of the view, at the appropriate time, which is at the end of the case when I bring down my decision, that Ms Davis did exhibit a determination to constructively fail to answer questions, that may go beyond a charge of contempt, and involve perjury, in which event the appropriate course may be for me to refer the matter to the Director of Public Prosecutions for her consideration of whether criminal proceedings should be brought.

10. There are so many imponderables and difficulties, that, perhaps ironically, the way ahead to me now seems relatively clear. One of the things that people are told when they are summoned to serve on a jury, while they remain a member of the jury array in the well of the court, at the time the Crown call an accused for trial and present the indictment, is that the fundamental function of a juror is to keep and maintain an open mind from start to finish; that is, from the Crown's opening until just before the verdict is brought into court. Indeed, any juror is entitled to change his or her mind, even right at the last minute. The important consideration is that a true verdict is brought in according to the evidence.

11. It seems to me that it would be a form of pre‑judgment for me to make any decision about referring Ms Davis and her evidence, or her conduct before giving evidence, to any authority for a consideration of whether any further step should be taken. Given that I heard a bail application, which I refused twice, and accordingly, I am aware of Ms Davis's antecedents. From that, if she is discharged, there may be some difficulty in apprehending her again in the future. However, that cannot a matter that is relevant for my consideration. The warrant has been executed. She has given evidence, and it seems to me there is no offence with which she is charged, or should now be charged, which would justify further detaining her. In the circumstances, as I have said, there is only one correct decision, and that is to accede to Mr Cooper of counsel’s application, and I discharge Ms Davis from any requirement to be here to give evidence in the case.

12. I wish to make it clear that I proceeded to refuse her bail, acting on the basis of a referral to this court by the Local Court under s 312 of the Criminal Procedure Act 1986 (NSW). As I said in my bail decision, that provision picked up and applied to Ms Davis' situation the provisions of the Bail Act 2013 (NSW) (“Bail Act”). To the extent that the Bail Act continues to apply, it is my view that, by force of s 6, the deemed criminal proceedings against Ms Davis, if I can put it that way, have concluded, and she is discharged from her bail acknowledgment.

13. Ms Davis, that completes your attendance here at court, and you are free to go. I direct that the registry, either here at Port Macquarie Local Court or the Supreme Court registry at Sydney, forthwith issue a release warrant countermanding the committal warrant pursuant to which Ms Davis is being held.

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