Principal Registrar of Supreme Court of NSW v Tran

See also R v Makrynikos [2006] NSWCCA 170. 16 The second paragraph in the extract from the agreed statement of facts to which I have just referred, is clearly directed to this issue. As I understand the situation, it is common ground that although the offender held the relevant subjective belief concerning the threats to which he said he had been subjected, he recognised that he could not raise as a reasonable possibility that "a person of ordinary firmness of mind and will…would have yielded to the threat in the way in which [he] did". It was upon that basis that the offender pleaded guilty. In other words the offender recognised that a mere subjective belief is not of itself sufficient to constitute duress: Registrar of the Court of Appeal v Gilby (NSWCA, unreported 20 August 1991). It is however a relevant factor to be considered upon sentence: Wood v Galea (1997) 92 A Crim R 287 at 291. Accordingly, it is accepted on the offender's behalf that at the time when he gave evidence there was no threat in existence which could be described as "present and continuing, imminent and impending": see R v Garde-Wilson [2005] VSC 441 per Harper J at 11. Moreover, as I have said, the offender had declined an offer from the police of witness protection. 17 On the other hand, there was evidence before the court concerning the offender's fears that he was under threat at the time when he gave evidence. A transcript of the evidence which he gave at his trial is before me. The offender told the trial judge and jury, in effect, that he would not continue to give evidence unless his security and that of his family could be guaranteed. 18 In addition to that material, an affidavit of Mr Andrew Martin who appeared on behalf of the offender at his trial before Johnson J, was read in these proceedings. Mr Martin said that despite his best endeavours he was unable to persuade the offender to divulge the names of the persons of whom he professed to be afraid. Mr Martin stated that the offender "repeatedly asked [him] if the Court could be closed or he could be assured that no-one would know that he had given evidence [in accordance with his instructions]". 19 In cross-examination Mr Martin expressed the opinion that the offender was "terrified" when he raised with him the question of the identity of the persons whom he [the offender] believed represented an on-going threat to both himself and his family. Indeed Mr Martin ventured the view that the offender was "the most frightened person" he had encountered in all his years at the Bar. 20 Mr Martin also said that at some stage during the course of the trial the offender: alleged he had been threatened on the way to court by another person in the Corrective Services' vehicle whom he did not know, but who told him that he had to "stick by the story he told the police in the first place" or face the consequences. 21 Mr Martin observed that the threat which the offender asserted that he had received on the way to Court was "even more frightening to him" because it apparently "emanated from somebody [whom he did not know] and who was not clearly closely related with the people that he was afraid of". 22 It is of course accepted by the offender that although he was under no obligation to give evidence, he became a compellable witness who was thus obliged to answer all questions asked of him (which were not disallowed) once he chose to enter the witness box. The offender was undoubtedly entitled to exercise his right to remain silent. It was not a right however which accompanied him into the witness box. Nor was he entitled to answer questions selectively. As it happens he was granted a certificate, pursuant to s 128 of the Evidence Act 1995, in respect of any possible self-incriminatory answers which he may give during the course of his evidence but it is common ground that the certificate did not enable him to refuse to answer the particular questions asked of him by the Crown. 23 I now turn to the subjective features of the offender's case. He was born on 4 February 1977 in Vietnam and is now aged 29. He emigrated to this country with his family in 1988. He left school during Year 10 and has not received any other educational or vocational training. He has worked intermittently in unskilled labouring jobs. In April 2000 he married a Vietnamese woman and their son was born on 21 August 2003. The offender, as I have said, was arrested in relation to the matters for which he stood trial on 23 July 2003. He and his wife thereafter separated. He remained in custody until his acquittal on 27 May 2005. For most of that period of nearly two years his son was cared for by the offender's mother although he was brought to visit the offender on a regular basis. 24 Upon his release from custody, the child lived with the offender. In June or July of this year the offender's mother relocated to Brisbane taking the child with her and, as I understand the evidence, the offender has not seen his son since that time. Through his solicitor the offender expresses his regret for his actions and I am prepared, in view of the position taken on behalf of the plaintiff, to regard that as some evidence of his contrition. Moreover it is to be observed that the offender apologised repeatedly to the trial judge for refusing to answer questions. In those circumstances his refusal to answer questions, although clearly deliberate, does not entail the type of conscious defiance of the court which is seen in some other cases. 25 The offender has a criminal record. It includes terms of imprisonment for supplying drugs and possessing firearms. He also has an appalling driving record. Whilst he cannot therefore be regarded as a person of prior good character, there is nothing in his antecedents which assumes any particular significance for present purposes. 26 The relevant principles to be applied are well-established. It is critical that the authority of the courts is not subverted by conduct such as that displayed by the offender. As Kirby P said in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314, the particular purpose to be served in the punishment of those guilty of contempt is to ensure "the undisturbed and orderly administration of justice in the courts according to law." See also Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435, per McHugh J at 462-3 and per Kirby J at 484-5. 27 In Registrar of the Court of Appeal v Raad (NSWCA, unreported 9 June 1992) Kirby P observed that: [t]he refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby , the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed. (at 14) 28 In Smith v The Queen (1991) 25 NSWLR 1 Kirby P said that: [a] blanket refusal to give evidence is reserved by the law to a very small class of persons and office-holders who, for reasons of high policy, are exempted from being compellable witnesses. It is undesirable in principle that this small category should be expanded, particularly when another and different procedure exists fairly to protect a competent and compellable witness in respect of the obligation to answer particular questions. That procedure permits the giving of as much evidence as is possible which does not carry the risk of self-incrimination. It requires the precise formulation of the question alleged to have the objectionable tendency. It permits a judicial ruling (and appellate review) against the touchstone of a concrete interrogation rather than the kind of global objection ventured here. It allows a court to judge more accurately the justifiability of the witness' refusal to answer. That refusal can be tested against the suggested risk which the witness faces. It permits decisions to be made on concrete facts rather than hypothesis and speculation. These are good reasons for adhering to the rule that to refuse to be sworn (or to affirm) or to give evidence such as occurred here amounts to a serious contempt in the face of the court. It is serious because courts decide cases on the basis of evidence. If evidence is unjustifiably withheld, the administration of justice is impeded. (at 10) 29 Mahoney JA observed that: [c]onduct of this kind will not be deterred by admonition or by gesture: it is necessary that the punishment for it be direct, immediate and exemplary. (at 23) 30 In Registrar of the Court of Appeal v Gilby (supra) the Court said: [i]t 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. (at 27) 31 In Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 the Court observed that: [a] conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314: "…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way." Being a common law offence there is no statutory maximum penalty. (at 320) 32 It is common ground that the provisions of the Crimes (Sentencing Procedure) Act 1999 apply to the sentencing of persons convicted of contempt: see Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527. In particular it is agreed that I should have regard to the general sentencing principles set out in s 3A of that Act and that I should also take into account the matters enumerated in s 21A. Suffice it to say that I have had regard to those matters which I consider to be of particular relevance to the present matter. As it happens there are no matters referred to in s 21A(2) itself which aggravate the offence. I have also given due weight to those matters which can properly be taken into account in the offender's favour. In particular, I have had regard to paragraphs (d), (i) and (k) of s 21A(3), which relate to the factors of duress, contrition and the guilty plea respectively. 33 The fact that the offender has pleaded guilty is a significant matter to be weighed in the offender's favour: see s 22 of the Crimes (Sentencing Procedure) Act 1999. The plea of guilty was entered after I had made a number of preliminary rulings upon objections to the admissibility of various pieces of evidence upon which the plaintiff sought to rely. Not all of those rulings were adverse to the offender. I had not finally ruled upon the admissibility of a statement made by the offender's ex-wife. His decision to plead thus obviated the need for her to give evidence had that become necessary. Although in the circumstances it cannot be said that the plea was entered at the first reasonable opportunity, it nevertheless has "facilitated the course of justice": see Cameron v The Queen (2002) 209 CLR 339. An appropriate discount in accordance with the guideline judgment promulgated in R v Thomson and Houlton (2000) 49 NSWLR 383 will accordingly be extended to the offender. 34 In Wood v Staunton (No 5) (1996) 86 A Crim R 183 Dunford J identified the following factors as being relevant to the sentencing exercise in cases such as the present: 1 the seriousness of the contempt proved; 2 whether the contemnor was aware of the consequences to himself of what he did; 3 the actual consequences of the contempt on the relevant trial or inquiry; 4 whether the contempt was committed in the context of serious crime; 5 the reason for the contempt; 6 whether the contemnor has received any benefit by indicating an intention to give evidence; 7 whether there has been any apology or public expression of contrition; 8 the character and antecedents of the contemnor; 9 general and personal deterrence; and 10 denunciation of the contempt. (at 185) 35 I will refer briefly to those matters identified by Dunford J which have particular relevance to the present proceedings. I regard the contempt as being a serious matter, occurring as it did in the context of a murder trial. For reasons identified in the authorities to which I have referred, it is necessary to impose a penalty which has a component of both general deterrence and denunciation. As the offender was made aware that he risked being prosecuted and punished for contempt, it is apparent that he had an awareness of the consequences of his actions. As I have said, it is clear that his actions were quite deliberate and that is a consideration which must be taken into account in the sentencing exercise. In many cases the consequence of a refusal by a witness to give evidence in proceedings involving another person or persons can be readily gauged because it often has an impact upon the outcome of the proceedings. It is not possible to reach such a conclusion in the present case. What might be said however with some confidence is that the offender's conduct had a tendency to interfere with the administration of justice. That was because the court was deprived of the opportunity of hearing evidence which bore upon the issues in the trial and of having them tested by the Crown. 36 I have already referred to the offender's reasons for refusing to answer questions. Given the evidence which is available upon that issue, it is appropriate to moderate the penalty which would otherwise be appropriate. 37 I have been furnished by the plaintiff with a schedule of penalties imposed upon persons who have refused to answer questions in a variety of proceedings. That schedule is annexed to these reasons and it reveals a wide range of sentencing outcomes. It may nonetheless be accepted that it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind. 38 Although I have derived some assistance from an examination of those decisions it is not suggested that they provide "any safe guide to the proper tariff or punishment for contempt of court. That is because both the nature of the contempt itself and its consequences vary so greatly in different cases": see Wood v Galea (1996) 84 A Crim R 274 at 277 per Hunt CJ at CL. His Honour's remarks are particularly apposite to the present case because, so far as the parties are aware, the only previous occasion on which a person has been prosecuted for refusing to answer questions at his own trial was in R v Georgiou [2000] NSWSC 287 (a decision which appears in the schedule). 39 The offender was arrested in respect of this matter, pursuant to a bench warrant, on 19 July this year and has remained in custody since that date. In those circumstances Mr Ramage QC, who appeared on behalf of the offender, submitted that a sentence ought to be fashioned so as to ensure that the offender spends no further time in custody. Mr Singleton, who appeared on behalf of the plaintiff, acknowledged that it would be within the proper exercise of my sentencing discretion to impose a sentence of imprisonment for four months (a period of time which will elapse in eight days time). Indeed he conceded that I would not fall into appealable error were I to do so. 40 Notwithstanding the favourable features of the offender's case, I have come to the view that no penalty other than a full-time custodial sentence can be countenanced. 41 I am aware that the offender is currently on remand in relation to another matter or matters which have yet to be finalised. I am informed that he is unlikely to obtain bail in respect of those matters in the immediate future. In those circumstances, and given the length of the sentence which I intend to impose, it is common ground that it is appropriate to impose a fixed term of imprisonment upon the offender.

Order 42 Thanh Vu Tran in respect of the charge of contempt of court you are convicted. You are sentenced to a term of imprisonment for a period of four months. That sentence will commence on 19 July 2006 and will expire on 18 November 2006.

1. Registrar of the Court of Appeal v Gilby Contemnor principal witness in relation to large marijuana cultivation - discount on sentence for promised co-operation - most co-accused acquitted. Six months fixed term (NSWCA, unreported, 20 August 1991)
2. Smith v The Queen (1991) 25 NSWLR 1 Refusal to give evidence against co-accused following conviction for murder - trial could not proceed. Fined $60,000 Contemnor serving life sentence
3. Registrar of the Court of Appeal v Raad Gave evidence exculpatory of accused in relation to bank robbery of which contemnor had been convicted - in cross examination refused to identify co-offender. Twelve months fixed term cumulative on present sentence (NSWCA, unreported, 9 June 1992)
4. ICAC v Cornwall (No 2) (NSWSC, unreported, 8 September 1993) Journalist refused to answer questions or to produce documents to ICAC - claimed moral and professional obligations not to reveal sources. Two months fixed term suspended on condition 90 hours community service performed (Abadee J)
5. Of the Court of Appeal Registrar v Craven (No 2) Refusal by former corporate executive to answer questions in prosecution of Brian Yuill for Companies Code offences - refusal followed incorrect legal advice that privilege against self incrimination was available but Court found motive for refusal was to try to get charges against contemnor dropped. Six months fixed term (1995) 120 FLR 464 $10,000 fine
6. Wood v Staunton (No 5) (1996) 86 A Crim R 183 Refusal to give evidence to Police Royal Commission - contemnor committed until further order - contempt purged by giving evidence to Royal Commission - determinate sentence then imposed by court. Eleven months fixed term

7. Wood v Moller (NSWSC, unreported, 15 November 1996) Failure to appear at Police Royal Commission in answer to summons - motive found to be reluctance to admit criminal activity and reluctance to give evidence against fellow police officers - fled jurisdiction but arrested and returned on drug charges - later gave evidence in record of interview, apologised and pleaded guilty to contempt - sentence to be served in strict protection. Eight month fixed term (Dunford J)
8. Wood v Galea Refusal to give evidence to Royal Commission regarding corrupt payments to police officers - lengthy coercive committal served - strong need for general deterrence - plea of guilty but no contrition - age and ill health taken into account. Two years 3 months fixed term (1997) 92 A Crim R 287 9 NSW Crime Commission v Johns (NSWSC, unreported, 3 April 1998 Contemnor refused to answer questions in examination under Criminal Assets Recovery Act 1990 - feared that wife would lose her. Twelve months fixed term cumulative on present sentence (Finnane AJ)
9. Registrar, Criminal Division, Supreme Court of NSW v Glasby Contemnor convicted of murder - refused to give evidence at husband's trial for murder - husband convicted on other evidence - no contrition - significant subjective matters: under influence of husband, daughter to care for, attempts at suicide, treatment for drug addiction. Two years minimum term [1999] NSWSC 846 Four years additional term (Adams J)
10. R v Georgiou [2000] NSWSC 287 Contemnor an accused in murder trial - gave evidence but refused to answer questions in cross examination - claimed answers would place other people at risk. Twelve months concurrent with sentence for murder (Dowd J)

12. R v Duncan [2000] NSWSC 440 Refusal to give evidence at trial of de facto husband - no remorse or apology - defence of duress not accepted but Court accepted that trial created pressures on contemnor and that she was experiencing stress and depression - separated from daughter - previous good character. Two months fixed term (Dowd J)
13. Ireland v Russell [2001] NSWSC 468 Refusal to give evidence at trial of de facto and others at trial for murder - later gave evidence, though in unsatisfactory manner - plea of guilty - strong subjective circumstances (advanced pregnancy, illness, three children one with severe cerebral palsy). Five year good behaviour bond (Ireland AJ)
14. Principal Registrar of the Supreme Court of NSW v Jando Refusal to give evidence at trial of co-offender for armed robbery pursuant to undertaking - important witness - plea of guilty - defendant 18, fearful for safety of self and family - no contrition or undertaking to give evidence at retrial - favourable presentence report. 12 months on each of two charges, to be served concurrently by way of periodic detention. (2001) 53 NSWLR 527
15. In the matter of Daniel James Ezold [2002] NSWSC 574 Contemnor convicted of murder - refusal to be sworn to give evidence at trial of co-offender - defence at trial limited to ability to form intention due to ingestion of drugs and alcohol - accused convicted - generalised fear of retaliation by prisoners as "informer" - significant subjective features. Six months: three months concurrent with existing sentence and three months cumulative (Barr J)
16. Principal Registrar of Supreme Court of NSW v Drollet 11 months imprisonment re refusal to give evidence; [2002] NSWSC 490 Contemnor pleaded guilty to armed robbery and undertook to give evidence against co-accused - refusal to answer questions at voir dire in trial of co-accused - additional charge of throwing glass of water at trial judge. Four months for throwing the glass of water; 15 months in total (Newman AJ)
17. Commissioner for PIC v Walker [2006] NSWSC 964 False assertion of inability to recollect matters in relation to alleged police corruption - no apology or contrition - no significant criminal history. Six months imprisonment to be served by way of home detention (McDougall J)
18. Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 Refusal to answer question in civil proceedings (examination under UCPR rule 5.2) - subjective apprehension of danger in giving evidence, not amounting to duress - principal proceedings settled - no apology but acknowledged wrongfulness of conduct - discount for early plea. 21 days (Hamilton J)

14/11/2006 - File number on judgment incorrect - Paragraph(s) Judment number in title

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