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Texts Cited: Dr David Kell SC and David Norris, ‘Developments in penalties for contempt by refusal to give evidence’, (Judicial Quarterly Review, August 2024)
N Adams and B Baker, “Sentencing for Contempt of Court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020

Category: Principal judgment

Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Oscar Casper (a pseudonym) (Defendant)

Representation: Counsel:
Dr D Kell SC / J Caldwell (Plaintiff)
M Avenell SC (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of New South Wales (Defendant)

File Number(s): 2025/00341869

JUDGMENT

1. These proceedings arise out of a 6 November 2020 shooting outside a house in Denham Court, a suburb south-west of Liverpool in the conurbation of Greater Sydney. The shooting gave rise to criminal proceedings against Mr B, who was charged with, and ultimately convicted of, shooting with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW). Mr Oscar Casper (the Contemnor, to whom a pseudonym has been applied), having been issued with a subpoena requiring him to give evidence in those proceedings, refused to do so. That refusal was referred to this Court and, by Summons filed on 5 September 2025, the Prothonotary of the Supreme Court of New South Wales charged the Contemnor with contempt of the District Court.

2. The Contemnor has pleaded guilty. Accordingly, the hearing before me concerned the appropriate punishment. Nevertheless, for completeness, I set out in full the relief sought by the Prothonotary:

“1. A declaration that [the Contemnor] is guilty of contempt of the District Court of New South Wales in that, between 20 May 2024 and 22 May 2024, [the Contemnor], who had been served with a subpoena to attend to give evidence in criminal proceedings brought by the Crown against [Mr B], wilfully refused to give evidence in the proceedings.

2. An order that [the Contemnor] be punished or otherwise dealt with for such contempt of court.

3. An order that [the Contemnor] pay [the Prothonotary’s] costs of the proceedings.

4. Any such order that the Court considers fit.”

Evidence

3. The following evidence and material were before the Court.

4. the affidavit of Lucy Nichols, the solicitor with carriage of the matter for the Prothonotary, affirmed 24 June 2026, containing two annexures;

5. the first affidavit of Rebecca Chant, the solicitor with carriage of the matter for the Contemnor, affirmed 17 July 2026, containing seven annexures;

6. the second affidavit of Rebecca Chant, affirmed 17 July 2026, containing two annexures;

7. the affidavit of Dale Steffen, who in 2024 was the solicitor for both the Contemnor and his mother, affirmed 16 July 2026, containing four annexures;

8. the affidavit of the Contemnor, affirmed 23 July 2026; and

9. a joint document styled “Agreed Facts”, filed on 29 May 2026, annexed to which were:

(a) the Contemnor’s first statement, dated 24 March 2021; (b) the Contemnor’s second statement, dated 30 March 2021; (c) the Contemnor’s third statement, dated 8 April 2021; (d) a transcript of the Contemnor’s oral evidence given on 3 May 2024 at a Basha inquiry; (e) a transcript of the Crown Prosecutor’s closing address on 4 and 5 June 2024 to the jury in the trial of Mr B; and (f) O’Rourke SC DCJ’s 20 November 2025 remarks on sentence in relation to Mr B.

4. Both parties provided written submissions, supplemented by oral argument at the hearing. Those submissions were prepared before the Contemnor’s affidavit was filed. The impact of this on submissions was addressed orally by Counsel.

5. During the hearing, Dr Kell SC, who appeared with Ms Caldwell for the Prothonotary, applied for orders under the Court Suppression and N**on-publication Orders Act 2010 (NSW). Ms Avenell SC, who appeared for the Contemnor, did not oppose the orders. I made those orders and have also pseudonymised both the Contemnor and Mr B.

Background

6. The following is largely drawn from the Agreed Facts.

7. The Contemnor and Mr B were in contact over the weeks leading up to the shooting. On 8 and 28 October 2020, the Contemnor and Mr B spoke on intercepted phone calls. On 1 November 2020, the Contemnor and Mr B made further phone contact.

8. From that date until the evening of 5 November 2020, a BMW, which had been stolen in July of that year, was parked in a rented garage in Rockdale, a short distance from where Mr B’s partner then lived. On the evening of 5 November 2020, the BMW was moved to a location in or near Lurnea, a suburb close to Denham Court.

9. The following evening, Mr B, intending to murder the victim, travelled in the BMW from Lurnea to the victim’s house in Denham Court. When the victim, accompanied by his partner, exited the house, Mr B discharged a firearm eight times. The victim was struck by between three and five bullets. He suffered catastrophic injuries, spending some time in a coma and being left a quadriplegic.

10. On 24 March 2021, the Contemnor was arrested on unrelated charges. Over the following weeks, he gave three statements about the shooting.

The first statement

11. On 24 March 2021, the day of his arrest, the Contemnor provided an induced statement to police. In that statement, he described growing up near, and attending school with, Mr B.

12. The Contemnor disclosed that Mr B had recently offered him $500 to “move” a car. After the Contemnor agreed, Mr B and another man drove him to a block of units, provided a code to access the block’s car park, and handed over the keys to a BMW. The Contemnor identified the block as being in Parramatta, though it was in fact located in Mays Hill, a suburb immediately south of Parramatta.

13. After procuring the car, a black BMW M4 Coupé, the Contemnor followed Mr B’s car to the garage of a house in Rockdale. That BMW was the same one Mr B drove to Denham Court.

The second statement

14. On 30 March 2021, the Contemnor provided a second statement. In that statement, he described taking police to the block of units in Mays Hill from which he had collected the BMW and then to the garage in Rockdale where he had deposited it.

The third statement

15. Nine days later, on 8 April 2021, the Contemnor signed a third statement, prepared by his solicitor, in which he retracted certain parts of his first statement. The Contemnor now asserted that his previous admission of driving the BMW was false. The substance of the third statement was that, having been arrested on 24 March 2021, and being desperate to obtain bail both for himself and for his partner, he had signed a statement which contained certain untrue suggestions put to him by the investigating police officer. The investigating officer allegedly said that giving the false evidence was the only way the Contemnor and his partner would be granted bail.

16. The Contemnor also advanced his drug use as a further reason to doubt the first statement. He said that, at the time he made the first statement, he was regularly taking methamphetamine, cannabis and illegally obtained benzodiazepines. The Contemnor claimed that he had been under the influence of drugs while making the statement, that he did not know about the BMW to which the investigating officer had referred and that he simply did not know the contents of the first statement when he signed it.

17. On 6 May 2021, Mr B was charged with shooting with intent to murder. The matter came to trial nearly three years later.

The Basha inquiry – 3 May 2024

18. A Basha inquiry took place before O’Rourke SC DCJ as part of a pre-trial hearing from 1–3 May 2024. The Contemnor was called to give evidence on 3 May 2024. He objected to answering questions concerning the alleged falsity of parts of his first statement and was granted a certificate pursuant to s 128 of the Evidence Act 1995 (NSW).

19. Having received that certificate, the Contemnor gave evidence to much the same effect as his third statement. He said he had been “coming off a big bender” so it was “very blurry like how everything happened” and that he struggled to stay awake when he gave his first statement. He described the investigating officer as “feeding [the Contemnor] a story” and said he went along with it to get bail. He denied any recollection of several matters in his first and second statements and said he had been “making up crap about where I got the car from”. He said that he had nothing to do with a black BMW owned by Mr B. He had not collected such a vehicle in Parramatta nor driven it to Rockdale. He maintained that his third statement was the truth.

The trial

20. On 6 May 2024, the Crown Prosecutor presented an indictment charging Mr B with shooting with intent to murder contrary to s 29 of the Crimes Act. Mr B pleaded not guilty and, after a jury was empanelled, the trial commenced before O’Rourke SC DCJ. The following day, a subpoena was issued by which the Contemnor was required to attend and give evidence at the trial from 15 May 2024.

21. On 10 May 2024, the subpoena was served on him at the correctional facility where he was serving a sentence following his April 2023 conviction for possession of an unauthorised pistol.

20 May 2024

22. On 20 May 2024, day 10 of the trial, the Contemnor was brought to the cells beneath the Downing Centre. The Contemnor was to be the first witness called by the Crown that day. At 10.43am, during a brief adjournment, the court officer called the court cells and requested that the Contemnor be brought to court. Several minutes later, the court officer received a call from a correctional officer in the cells, who advised her that the Contemnor refused to attend Court to give evidence because he had already done so, and would not do so again.

23. The Crown Prosecutor and his solicitors then attended the cells to speak with the Contemnor. When proceedings resumed at 11.04am, the Crown Prosecutor had the following exchange with O’Rourke SC DCJ:

“CROWN PROSECUTOR: Thank you, your Honour, for that time. We went down to speak to [the Contemnor] in the holding cells. He refused to come out to talk to us. I then asked the Corrective Services officer to convey to him that he is required, pursuant to subpoena, and it may be a criminal offence if he refuses to come up.

I also asked him to convey to [the Contemnor] that he would be asked questions similar to those he was asked a little while ago in this court and to ask him to come up for that purpose. Those matters were conveyed to him, and he again refused. So the Corrective Services officer came back to me and said ‘I’ve told him all those things, that he is under a legal obligation to come up, that the questions would be about the same topics that’s on the last occasion, but he refused to attend or to speak to me or to come to court.

HER HONOUR: So what do you propose?

CROWN PROSECUTOR: Well, in those circumstances, my application will ultimately be to tender his statements on the basis that—

HER HONOUR: That’s a big jump straight away. I think firstly he needs to be aware that he could be held in contempt of court. If you’ve got a service of subpoena that’s been served, and I might try and get him moved to an A VL link in one of the cells and advise him as to what the prospects is that he may be found guilty of contempt, and then either refer to the Supreme Court for contempt proceedings or found guilty here and what he might earn as punishment in relation to that.”

24. Her Honour proposed that a duty barrister should be found to “advise [the Contemnor] of what he might be facing” and considered whether it would be sensible to “give him that day to sit in the cells and reflect on what he wants to do”.

25. Another witness gave evidence while the parties enquired about the availability of a duty barrister to advise the Contemnor. At the conclusion of that witness’s evidence, the Crown Prosecutor informed O’Rourke SC DCJ that a duty solicitor was available but could not see the Contemnor until 1pm. In any event, her Honour wished to speak to the duty solicitor beforehand to advise him of the situation. At around 11.35am, the duty solicitor appeared before the Court and was informed by her Honour that the Contemnor should be advised:

“as to the prospect of being charged with contempt and the penalties that are imposed in relation or could be imposed in relation to the issue of contempt under s 199 of the District Court Act or being referred to the Supreme Court.”

26. At around 2.38pm, the duty solicitor returned and had the following exchange with O’Rourke SC DCJ:

“DUTY SOLICITOR: Thank you your Honour. I was actually able to see him, and he did come to the docks. Your Honour, I went through the advice with him. I advised him that he was compellable in relation to it. I also advised him that the failure to attend could be referred for contempt. I advised him of different penalties in District, Local.

HER HONOUR: And Supreme,

DUTY SOLICITOR: And Supreme. I said that differentiated on degrees of severity. The only case that I saw that even looked close was the case of Tran, which was a four-month custodial sentence.

HER HONOUR: That was for four and a half years that I read.

DUTY SOLICITOR: That’s what I advised him of, and there was another one of up to a lot longer as well. And I said there is no specific range, and it’s all determined on the gravity of your level of contempt…

… I confirmed that he’s not been threatened in any way in not to give evidence. I’ve asked him if he was ordered up and made reference to the fact that if he was dragged up, what would he do? He said he’d stay mute. He would not answer any questions in relation to it. I’ve further asked him if there’s any issues or anything that either the Court or either party could talk to him about to make him more comfortable to give evidence. He said that there was not. He stated that he’s already participated in the proceedings. He will not do so again in relation to it. He is adamant about not giving evidence.

I then advised him that I’d go and look at some recent cases in relation to it. I left. I looked at the principal registrar and I said well, that was four months, but it can get up to a lot higher than that and up to - I saw one of eight years. Your Honour, in relation to that second visit, he would not come to the cell docks but it was relayed to him eight years being a maximum that I found in relation to it. Correctives stated they told him that. He basically is just saying he wants to serve out his 11 months that he’s serving at the moment. I said, ‘Well it’s not going to be that simple’.”

21 May 2024

27. The following day, the Contemnor was again brought to the cells beneath the Downing Centre. A night’s reflection had not altered his position. The duty solicitor attended and agreed again to advise the Contemnor “to see if there’s any change in decision”. In the meantime, the Crown Prosecutor made an application pursuant to s 65 of the Evidence Act to tender the Contemnor’s first two statements as well as an audio recording and transcript of the evidence the Contemnor had given in Court on 3 May 2024.

28. Later that morning, the duty solicitor returned to Court and had the following exchange with her Honour:

“DUTY SOLICITOR: Thank you, your Honour. I went through everything with him again. He’s adamant that he’s not coming up. I went through the possible sentences, possible charges of contempt, Local, District, and Supreme Court, including the fact that it could be up to four years. I advised him that there could be a case where he could be brought to Court.

HER HONOUR: Yes, which is what I’m contemplating today.

DUTY SOLICITOR: He said, in his exact words, ‘If they try and do that, I’m going to remove my clothing’.

HER HONOUR: Okay, well, what I’m proposing to do is to actually have him brought up to Court. I’ll speak to the correctives and there’s a duty upon the Court to actually advise him as well as to the potential risk that he is undertaking and the likely penalties that may be imposed. So I would like to do that.”

29. A short time later, O’Rourke SC DCJ discussed with Mr B’s counsel the possibility of her Honour personally going to the cells and informing the Contemnor that she was considering referring his contempt to the Supreme Court as well as the potential consequences of that referral.

30. At 2pm, her Honour, after informing the duty solicitor that she intended to have the Contemnor brought back the next day, went to the Downing Centre cells with two Sheriff’s officers and a transcriber.

31. At approximately 2.15pm, in a legal box beneath the Downing Centre, her Honour had an exchange with the Contemnor. That exchange, which I regard as an exemplar of procedural fairness, warrants setting out almost in its entirety:

“HER HONOUR: I’m Judge O’Rourke. Do you remember you gave evidence in my court the other day? And I understand that you’re refusing to come out of your cell to come up to court to give evidence in the trial before the jury. Is that so?

CONTEMNOR: Sorry.

HER HONOUR: I understand that you’re refusing to come out of the cell to come up to court to give evidence before the jury.

CONTEMNOR: Yes. I’m refusing. Yes.

HER HONOUR: Even though you gave evidence previously?

CONTEMNOR: Yep.

HER HONOUR: Is there a reason for that?

CONTEMNOR: I already said what I had to say. There’s nothing else to add.

HER HONOUR: But that wasn’t in front of the jury. Do you understand that it has to be in front of the jury and not just in the absence of the jury?

CONTEMNOR: No I don’t want to go up at all.

HER HONOUR: Do you understand, though, that by doing this that you risk being found in contempt of court?

CONTEMNOR: Yeah. I understand.

HER HONOUR: And do you know what that means?

CONTEMNOR: Yeah, I do.

HER HONOUR: What do you understand it to mean?

CONTEMNOR: That I could end up serving gaol time.

HER HONOUR: A substantial amount of gaol time; are you aware of that?

CONTEMNOR: Yeah I am.

HER HONOUR: And you’re aware that it you continue to refuse to come up and give evidence what that may mean is that I refer the matter to the Supreme Court. So I have the choice of dealing with it summarily before me or I can refer it to the Supreme Court.

CONTEMNOR: Yeah… (not transcribable) …

HER HONOUR: The Supreme Court has no maximum penalty. So it means that it can sentence you to any term of imprisonment that it seeks to do, or give you a fine.

CONTEMNOR: Okay.

HER HONOUR: I understand that you’ve got about 11 months to go.

CONTEMNOR: Fourteen.

HER HONOUR: Fourteen months. Now, there’s a good chance that if it’s referred to the Supreme Court that you’ll receive more than 14 months; do you understand that?

CONTEMNOR: Yeah, I understand.

HER HONOUR: Is there anything you wish to say to me about whether or not I refer it to the Supreme Court or deal with it myself?

CONTEMNOR: Honestly, I’d appreciate it if you could deal with it, but, like, I don’t—the power’s in your hands, Miss. Like, yeah.

HER HONOUR: And is there anything further you want to say to me as to why you don’t want to give evidence and why you’re refusing to?

CONTEMNOR: I already said what I’ve had to say—

HER HONOUR: Well, not to me you haven’t. So what would you like to say to me?

CONTEMNOR: This has been an ongoing thing for some time now, and, like, it was a mistake I made when I was intoxicated. And I tried to fix it, and it’s just - it’s too much. I’ve had enough of it. Like, it’s—

HER HONOUR: Well, I want to - after hearing from me, though, and understanding what you may incur and what you may get in, basically, extra time in gaol, I want you to think about it, and I’m going to bring you into the cells again tomorrow. And then you can let me know after – [the duty solicitor] has been here, I understand, speaking to you at various times in the last couple of days. He’s here, available again, if you want to seek some further advice from him and have a chat to him about what I’ve just told you. Otherwise, we will see you – or, hopefully, we will see you tomorrow. But, basically, you’ll be brought into the cells tomorrow again, okay, because we want this trial to finish as well. Okay?

CONTEMNOR: I already ... (not transcribable) ... I’m not going to come up.

HER HONOUR: Is there anything further you want to say to me?

CONTEMNOR: I’m not going to come up to the courtrooms. I appreciate it. Yeah. No disrespect to the court, but I’ve just had enough and - yeah.”

32. Proceedings recommenced at 2.40pm, whereupon her Honour advised the parties of her conversation with the Contemnor and heard argument with respect to the s 65 application, which was ultimately refused.

22 May 2024

33. The following day, 22 May 2024, the Contemnor was again brought to the cells beneath the Downing Centre. At 11.08am, the duty solicitor emailed O’Rourke SC DCJ’s associate, advising that he had again attended upon the Contemnor and that the Contemnor still refused to give evidence. Shortly after 1.32pm, the Contemnor was called to give evidence. The court officer called the correctional officer, who advised her that the Contemnor refused to give evidence despite being aware of the possible consequences should he not do so.

34. That afternoon, O’Rourke SC DCJ delivered an ex tempore judgment in which she concluded that the Contemnor’s conduct was capable of amounting to contempt of court. Her Honour referred the matter to the Supreme Court pursuant to s 203 of the District Court Act 1973 (NSW).

35. The trial proceeded without the Contemnor’s evidence. On 13 June 2024, the jury in the Mr B proceedings returned a verdict of guilty. Her Honour convicted him on 20 November 2025 and sentenced him to a term of imprisonment of 19 years, with a non-parole period of 12 years.

Applicable principles

36. Part 55 r 13 of the Supreme Court Rules 1970 (NSW), which concerns punishment for contempt of court, provides, relevantly, as follows:

55.13 Punishment

(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

…

(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

37. As can be seen, that rule does not limit the penalty the Supreme Court may impose for contempt as the Court’s power to punish for contempt derives from its inherent power to safeguard the administration of justice and uphold the rule of law: Prothonotary of the Supreme Court of New South Wales v Patrick [2023] NSWSC 1077 (Patrick) at [16] (N Adams J).

38. Contempt is a common law offence. Subject to certain limitations the penalty for the offence is at large and may include imprisonment: Smith v The Queen (1991) 25 NSWLR 1 at 13–15; Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 at [5]–[10] (Gleeson JA, Beazley ACJ and Payne JA agreeing). Neither the Crimes (Sentencing Procedure) Act 1999 (NSW) nor the Crimes (Administration of Sentences) Act 1999 (NSW) applies to contempt matters: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]–[58] (Basten JA, Meagher JA agreeing).

39. The Court’s discretion is broad, and the available range of punitive orders extends as far as indefinite terms of imprisonment: Street v Luna Park Sydney Pty Ltd [2009] NSWSC 767 (Street) at [21] (Brereton J). The Court may impose a suspended sentence, including upon conditions to which a contemnor must adhere: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (Maniam) at 314 (Kirby P).

40. The principles to be applied in imposing a penalty for contempt of court were set out in Maniam, where Kirby P at 314–316 said:

“A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, 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 approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.

…

It is appropriate to evaluate the opponent’s conduct, relevant to punishment, by having regard to the objective seriousness of the offence found; the considerations relevant to his culpability; and the considerations relevant to demonstrating contrition or otherwise apt for evaluating his conduct.”

41. Those principles were given greater specificity in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, where Dunford J set out the range of matters to which the Court must have regard in assessing the appropriate penalty for contempt. Those matters are:

42. the seriousness of the contempt proved;

43. whether the contemnor was aware of the consequences to himself of what he did;

44. the actual consequences of the contempt on the relevant trial or inquiry;

45. whether the contempt was committed in the context of serious crime;

46. the reason for the contempt;

47. whether the contemnor has received any benefit by indicating an intention to give evidence;

48. whether there has been any apology or public expression of contrition;

49. the character and antecedents of the contemnor;

50. general and personal deterrence; and

51. the need for denunciation of the contempt.

52. There are two further factors. The first, which may be regarded as either a separate factor or a subspecies of factor (5), is whether the contempt was motivated by fear of harm had the contemnor given the evidence: Wood v Galea (1997) 92 A Crim R 287 at 291 (Hunt CJ at CL); Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 (Trad) at [9] (Hamilton J). I shall treat it as a subspecies of factor (5). The second is the likely effect that punishment will have on the contemnor, including any hardship it might cause: Council of the New South Wales Bar Association v Rollinson [No 2] [2023] NSWSC 1390 (Rollinson [No 2]) at [67] (Payne JA).

53. The first six factors are relevant to an assessment of the objective seriousness. The remaining factors bear on the Contemnor’s subjective case: Prothonotary of the Supreme Court of New South Wales v Emmanual Majak (aka Emmanuel Deng) [2026] NSWSC 54 (Majak) at [52] (N Adams CJ at CL).

Issues joined between the parties

44. Although I will consider each of the eleven factors individually, some of them are not in dispute. The factors on which the parties join issue are:

45. factor 1, the seriousness of the contempt;

46. factor 3, the actual consequences of the contempt on the relevant trial;

47. factor 5, the reason for the contempt;

48. factor 7, whether there has been any apology of public expression of contrition;

49. factor 8, the character and antecedents of the Contemnor;

50. factor 9, as to personal deterrence only; and

51. factor 11, the likely effect that punishment will have on the Contemnor, including any hardship it might cause.

Consideration

Factor 1: The seriousness of the contempt

45. In Registrar of the Court of Appeal v Raad [1992] NSWCA 207, Kirby P stated at 8–9 the following:

“… The 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.”

46. The community suffers harm, or is at least liable to suffer harm, when a person refuses to give evidence which they should give in a criminal proceeding: Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 at 14 (Mahoney, Priestley and Clarke JJA). Such refusals may subvert the authority of the Court: In the matter of Daniel James Ezold [2002] NSWSC 574 at [15] (Barr J). This has also been addressed by Johnson J in R v Razzak [2006] NSWSC 1366; 166 A Crim R 132 (Razzak) at [39].

47. Against that background, the Prothonotary submits that the Contemnor’s conduct was serious. He emphasises that the Contemnor persisted for three days in his refusal even though he was made aware both of his obligation to give evidence and of the potential consequences of not doing so. The Contemnor submits that the refusal “was not an overly serious or noteworthy example” of a refusal to give evidence.

48. As I will explain in my overall assessment below, I consider the Contemnor’s refusal to give evidence to have been a serious contempt of court.

Factor 2: Whether the Contemnor was aware of the consequences to himself of what he did

49. There is no dispute as to this factor. As set out at [22]–[34] above, the Contemnor was repeatedly advised that his refusal left him open to a charge of contempt of court and that a penalty of imprisonment could be imposed.

Factor 3: The actual consequences of the contempt on the relevant trial

50. Justice Johnson in Razzak said the following at [56]:

“It should be borne in mind that an assessment, after the event, of the impact of the contempt upon the trial involves the ‘wisdom of hindsight’: R v Garde-Wilson [2005] VSC 452 at [18]. At the time when the Contemnor refused to be sworn or affirmed, the consequence of the loss of his evidence to the trial could not be realistically assessed. It could not be said, and the Contemnor could not have genuinely believed at that time, that the stance he took would have little impact on the trial.”

51. The Prothonotary submits that the Contemnor’s conduct deprived the District Court and the jury of the opportunity to hear his evidence about the shooting, which frustrated the administration of justice. The significance of the Contemnor’s evidence, the Prothonotary argues, is unclear and the impact of its absence on the trial cannot be determined. The Prothonotary’s ultimate position in his written submissions was that, in the circumstances, the consequences of the contempt were uncertain.

52. The Contemnor’s position, in his written submissions, was that the benefit of the Contemnor’s evidence to the Crown case would have been “minimal if anything”. This was amplified by Ms Avenell SC in oral address. The argument consists of two complementary strands. First, the Contemnor’s evidence, when measured against other available inculpatory evidence such as the DNA on the driver’s headrest, the phone intercepts and the cell tower evidence, was of marginal calibre and value. Secondly, the reliability of the Contemnor, given the Contemnor’s stance at the Basha inquiry and the need for a s 38 cross-examination, would erode whatever limited probative benefit the Contemnor’s evidence would have contributed to the Crown case.

53. Against that, the Prothonotary submitted that, if anything, the Contemnor’s evidence would likely have strengthened the Crown case and that it may have been more powerful or more direct.

54. There is force in both parties’ submissions. It is true that the Contemnor could have given relevant evidence at the trial. His refusal to do so frustrated the administration of justice to some degree. At the same time, there was objective evidence linking Mr B to the BMW. Further, the Contemnor’s credibility and reliability would have been substantially affected by his third statement and Basha evidence. What appears to have been lost was the forensic elegance of the Contemnor’s voluntary evidence rather than any general probative content. Because of this, I cannot find that the actual consequences of the contempt were significant or affected the outcome of the trial.

Factor 4: Whether the contempt was committed in the context of serious crime

55. There is no question that the Contemnor’s contumacious conduct, occurring in a trial for the offence of shooting with intent to murder, which has a maximum penalty of 25 years’ imprisonment, was committed in the context of a serious crime.

Factor 5: The reason for the contempt

56. This is the principal factor in dispute. The Contemnor’s stated reason for refusing to give evidence was that he had already done so and did not regard it as necessary that he do so again. His variations on that theme appear at [23], [26], [28] and [31] above. That reason was unsatisfactory. That is not the end of the matter.

57. The evidence establishes that the Contemnor was aware of a threat made against his life. Mr Steffen, in his affidavit, deposed that on 29 April 2024, a police officer informed him that there had been a threat to the Contemnor’s life.

58. During his evidence at the Basha inquiry, the Contemnor said:

“Like, even, you know what, even on the 26th, last Friday, Raptor approached me again. And again, they tried to threaten me. Now, they’re threatening me, telling me that there’s - there’s apparently money on my life if I don’t help them. That now I’m up shit creek. That - mate, I’ve got to make amends. This is my mate. Like, I can’t believe I’ve - I hope he forgives me. Like, this is some - this is bullshit. I can’t believe I’ve done this. This is what junkies do. This is what made me get off drugs because of this.”

(Emphasis added.)

59. On 5 May 2024, two days after giving evidence at the Basha inquiry, the Contemnor, in a phone call with his mother, said he had been told that “there is money on [his] life”. In a call with his brother later that same day, the Contemnor described the threat as “all full of shit”. He continued, “I went there on Friday [3 May 2024] and saw my buddy”, who “is not spinning out about me”. The Contemnor’s brother responded “[o]f course he’s not spinning out. He has been [though]”. The Contemnor’s “buddy” is, apparently, Mr B.

60. The Contemnor submits that, in the light of that evidence, the possibility that the threat was weighing on the Contemnor’s mind cannot be discounted. This is notwithstanding that the Contemnor accepts the duty solicitor’s account that, when asked, the Contemnor confirmed he had not been threatened.

61. For the following reasons, I remain sceptical that safety fears intruded into the Contemnor’s refusal to give evidence at the trial:

62. temporal hiatus: the Contemnor recanted his first two statements, by his third statement, on 8 April 2021. That statement preceded the Basha inquiry and the trial by approximately three years. There is no suggestion in the evidence that, at that stage, he held fears for his safety;

63. Basha inquiry: though it is true that the apparent threats upon the Contemnor’s life emerged shortly before the Basha inquiry, the Contemnor, during the inquiry, did little more than repeat (and, to some extent, expand upon) his third statement;

64. l**ack of detail: there was little detail in the evidence of the threats. Whilst this may reflect police protocols, it is difficult to gauge the seriousness and credibility of the threats;

65. t**he Contemnor*’*s telephone calls with his mother and his brother: as I have said, on 5 May 2024, the Contemnor had telephone calls with his mother and then his brother while he was imprisoned. In both calls, the Contemnor dismissed the existence of any threats to his life. I note that, as this was in the context of attempting to persuade his mother that she herself was not in any danger and it was safe to visit him, this could have been the bravado of a man who wished to see his mother. The Contemnor told his brother he had seen his “buddy” the previous Friday, which was the day of the Basha inquiry. He further told his brother, essentially, that Mr B was not concerned about the Contemnor. I infer that this is a reference to Mr B not being troubled by the evidence the Contemnor had given at the Basha inquiry. Added to this, the evidence given by the Contemnor at the Basha inquiry suggested that he considered reports of the threat to be police attempting to use a threat from Mr B as leverage.

66. During oral argument, the possibility of the Contemnor’s loyalty to Mr B emerged as a second potential reason for the contempt. In addition to his evidence set out at [58] above, the Contemnor, during the Basha inquiry, agreed that Mr B had been a friend for much of his life. He later said that he was “disgusted” at having provided a statement against “a mate”.

67. In aggregating these matters, if the Contemnor’s fears for his safety, or that of his family, concerned him so as to cause his refusal, I conclude it was a peripheral matter of insufficient significance to warrant being taken into account on the question of penalty. The predominant driver of the Contemnor’s refusal was, in my opinion, a combination of loyalty to Mr B and a desire to maintain a reputation for loyalty.

68. In forming this opinion, I have also taken into consideration the Contemnor’s affidavit, which contains no evidence as to the cause of his refusal. His silence on this topic is significant.

Factor 6: Whether the Contemnor has received any benefit by indicating an intention to give evidence

65. There is no dispute that the Contemnor received no benefit by indicating an intention to give evidence.

Conclusion on objective seriousness

66. I have had careful regard to each of the factors above. The contempt, occurring in the context of a trial for shooting with intent to murder, was serious and the Contemnor had been advised by multiple people across three days of the potential consequences of his contempt. At the same time, I have not been able to make a finding that his conduct had actual consequences. Further, the Contemnor may have been under some slight subjective apprehension of danger or duress due to the reported threat against his life, and he derived no benefit from indicating an intention to give evidence.

67. In the circumstances, I am satisfied that the Contemnor’s refusal was a serious instance of contempt by refusal to give evidence.

Factor 7: Whether there has been any apology or public expression of contrition

68. The Contemnor said “sorry” to O’Rourke SC DCJ when her Honour attended on him in the legal box beneath the Downing Centre. He added that he did not mean any disrespect to the Court. The Prothonotary accepts that those statements may suggest limited contrition on the Contemnor’s part.

69. Beyond those matters. the Contemnor submits that his guilty plea and cooperation in these proceedings are evidence of his contrition. The Prothonotary agrees in so far as a guilty plea may be seen as evidence of some contrition and remorse. However, the Prothonotary notes that the extent to which a guilty plea affords leniency depends to a large degree on whether the plea resulted from a recognition of the inevitable: In the matter of KL [2024] NSWSC 1334 at [47] (Hamill J). The Prothonotary submits that the Contemnor’s plea represents no more than an acceptance of the inevitable and so it should be given only limited weight.

70. I remain unpersuaded that the Contemnor had, or has, any contrition or remorse for his conduct. He was resolute in his determination to not give evidence, even in the teeth of inevitable punishment. Punishment was, seemingly, an acceptable transactional cost which he was willing to pay. While I regard the Contemnor’s apology to O’Rourke SC DCJ as genuine, it strikes me more as a recognition that his refusal was inconvenient and “upset the apple cart”. Such an apology expresses contrition for a byproduct of his conduct; not for the conduct itself. In this vein, the absence of any apology or evidence of contrition in his affidavit serves only to confirm my view.

71. Having already addressed the extent to which the Contemnor’s guilty plea demonstrates his contrition, I turn to the timing of the plea. The proceedings were commenced on 5 September 2025. The first directions hearing took place on 2 October 2025. The matter was adjourned three times before the Contemnor entered his guilty plea on 5 March 2026. The Prothonotary, correctly, accepts that the Contemnor should be taken to have entered his plea at an early opportunity. Accordingly, I will apply a utilitarian discount of 25% for the early plea.

Factor 8: The character and antecedents of the Contemnor

72. The parties agree that the Contemnor is, by reason of his criminal antecedents, disentitled to leniency.

73. The Contemnor has a lengthy criminal history. It begins in 2001, and the document which records it ends 27 pages later in 2022. The Contemnor seeks to characterise his criminal history as “mid-level”.

74. I disagree. Such a characterisation understates the position. Although it is true that none of the offences are of a similar nature to that before me, many of them are serious. Some of the Contemnor’s convictions relate to firearms, other weapons, explosives, violence (including domestic violence) and drugs. Contravention of a domestic violence order is an offence in defiance of Court orders. It demonstrates a continuing attitude of disobedience to the law: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477–478 [14].

75. Separately, the Contemnor submits that the Court should be cautious before using his criminal antecedents to any greater effect. The Prothonotary says that those antecedents are relevant to determining where, within the bounds of the objective circumstances, the sentence should lie.

76. It is a matter to which I have accorded some weight in determining the appropriate sentence.

Factor 9: Personal and general deterrence

77. Personal deterrence will be of minimal importance where it is unlikely that a contemnor would be called upon as a witness in the future: Trad at [19] (Hamilton J). However, that may not be the case where it is “not an entirely theoretical possibility” that the contemnor will be called as a Crown witness in the future: Razzak at [77].

78. In this case, the Contemnor’s extensive criminal antecedents satisfy me that the possibility of his being called as a Crown witness in the future is not entirely theoretical. I consider that personal deterrence is relevant to the penalty I will impose.

79. General deterrence is unquestionably of great significance. Justice Johnson in Razzak said at [78]:

“General deterrence is a most important factor on sentence in this case. Persons who are called as witnesses in criminal proceedings must understand that significant consequences will flow from a refusal to be sworn or affirmed or to give evidence. 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: Gilby at 26.”

80. I respectfully agree with his Honour’s remarks. Disobedience of this nature cannot go unanswered. The Contemnor’s sentence must impress upon all those who are required to give evidence in criminal proceedings the seriousness of their duty.

81. General deterrence is a factor of great weight in this matter.

Factor 10: Denunciation

82. In relation to denunciation, Johnson J said at [83] of Razzak the following:

“The principle of general deterrence has application in this context by reinforcing an understanding in future witnesses in criminal trials that a refusal to give evidence will be met by stern penalties. Without application of this fundamental concept to the criminal justice system, there is the prospect that accused persons and their associates will be encouraged to intimidate witnesses, and witnesses will be encouraged to succumb to intimidation in the belief that little or no penalty will result. Such a consequence would undermine the criminal justice system in a profound way.”

83. Denunciation is a significant factor in this matter.

Factor 11: The likely effect that punishment will have on the Contemnor, including any hardship it might cause

84. Ms Avenell SC, during oral submissions, linked this factor with the Contemnor’s personal circumstances (addressed below) to found the submission that a non-custodial sentence, or at least a suspended sentence of imprisonment, was appropriate in this case.

85. The Contemnor’s stated post-release attitude was encouraging for his prospects of rehabilitation, and I did not disregard the importance of that attitude continuing. However, the weight I can attach to those prospects is limited by the lack of evidence concerning the likely effect that punishment will have on the Contemnor.

The Contemnor’s subjective circumstances

86. The Contemnor was imprisoned in relation to his possession of an unauthorised pistol between 20 July 2022 and 19 July 2025, when he was released on parole. The Contemnor’s compliance with supervision was deemed “satisfactory”. Over time, the required frequency of his supervision gradually diminished until, on 11 June 2026, it was suspended on the condition that he participate in drug and alcohol intervention. The Court was advised during the hearing that, in conformity with his conditions, the Contemnor had visited a General Practitioner once and was scheduled to do so again soon.

87. The Contemnor's parole was due to expire on 19 July 2028; however, on the morning of 7 August 2026, minutes before this judgment was to be delivered, I was informed that he had been arrested and charged with possession of an unauthorised pistol. The Contemnor was refused bail and is now on remand. Accordingly, his submissions concerning his subjective circumstances have been overtaken by events. I will nevertheless set forth the Contemnor’s circumstances as at the time of the hearing. I note that his changed circumstances could only have increased the penalty. In his favour, I have not altered my decision.

88. Prior to his 7 August 2026 arrest, the Contemnor lived with and cared for his mother. Her mobility is limited and the Contemnor helped her perform day-to-day activities. He said that he wished to finish the Certificate II which he commenced while imprisoned and to use the qualification to gain future employment in engineering and welding fabrication.

89. He maintained contact with his teenage children and intended to apply to have them live with him. This was clearly important to the Contemnor, and he appeared to recognise that continued contact with his children was contingent on his sobriety and stability.

Penalty

90. Annexed to the Prothonotary’s submissions was a schedule of penalties in cases of contempt for a refusal to give evidence. Although comparable cases will, by their nature, contain both analogous and disanalogous aspects, such a schedule is of assistance when considering what judges have done in other cases. A range of sentences can be a “yardstick” against which to examine my proposed sentence, but it does not fix the boundaries within which a judge must sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 537 [54].

91. The principles which inform the imposition of a sentence for contempt are as follows:

92. it is generally only in an exceptional case that a custodial sentence would not be imposed for a refusal to answer questions in a criminal trial: Principal Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183; 166 A Crim R 393 at [37] 401 (Buddin J). Even so, the Court retains a discretion to impose a non-custodial sentence without needing first to find that a case is exceptional: Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 at [34] (Yehia J);

93. a term of imprisonment is a penalty of last resort and should not be imposed before considering whether there is any alternative course that is appropriate in the circumstances: Rollinson [No 2] at [69]; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at 539 [68] (McCallum JA); see also: Dr D Kell SC and D Norris, “Developments in penalties for contempt by refusal to give evidence” (Judicial Quarterly Review, August 2024). The seriousness of the offence is underlined by the observation of N Adams J in Patrick at [58] that, since 2000, there have been only a limited number of cases concerning refusal to give evidence in criminal proceedings in which a term of imprisonment has not been imposed;

94. before sentencing a contemnor to a term of imprisonment, the Court should consider whether there is any alternative course “that is appropriate in the circumstances, having regard to the nature and object of the function in question”: Rollinson [No 2] at [30]; and

95. while the function of dealing with a person for contempt in civil proceedings has much in common with the sentencing task in criminal proceedings, it remains the case that the court is exercising different powers serving different purposes: see He v Sun at [63]. The underlying rationale of every exercise of the contempt power is a necessity to “uphold and protect the effective administration of justice”: Australasian Meat Industry Employees*’* Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 107 [17].

96. I have had regard to these principles and have considered the Contemnor’s conduct in their light. My findings as to each of the factors are as follows:

97. the contempt is serious;

98. the Contemnor was abundantly aware of the consequences of refusing to give evidence;

99. the contempt was committed in the context of a serious crime;

100. the Contemnor has shown negligible contrition;

101. the Contemnor’s antecedents are extensive;

102. the need for personal deterrence is high;

103. the need for general deterrence and denunciation is extremely high; and

104. there is no hardship which warrants a grant of leniency.

Determination

93. Although the detention of a contemnor is a last resort, I consider that the only appropriate course is to impose a period of imprisonment. A suspended sentence is not appropriate. The factors in its favour do not outweigh the factors against it, in particular the centrality of general deterrence. As I have already said, a person who is required by law to give evidence in criminal proceedings and wilfully refuses to do so is almost certain to go to gaol.

94. For the charge of contempt, I would order the Contemnor to a period of 8 months’ imprisonment. After applying the 25% utilitarian discount to reflect his early plea of guilty, that period is reduced to 6 months.

Costs

95. The Prothonotary sought his costs of the proceedings in prayer 3 of the Summons. The Contemnor opposes the making of such an order. In his oral address, Dr Kell SC did not formally abandon this prayer for relief, but in fairness, nor did he make any submissions in favour of it.

96. In a recent case in very similar circumstances to the present, the Court declined to make an order for costs in the Prothonotary’s favour because the contemnor was being punished with a custodial order: Majak at [93]. I propose to adopt the same course in this case. What follows are my reasons for doing so.

Contempt in the civil jurisdiction

97. Although contempt may be described as criminal in nature, it proceeds in the Court’s civil jurisdiction. Accordingly, contempt proceedings attract the usual rule that costs follow the event: Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 (Hinch) at 89. For the same reason, they are subject to the application of the Civil Procedure Act 2005 (NSW) (CPA) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): Kostov v YPOL Pty Ltd [2018] NSWCA 306 at [17] (Beazley P, Meagher JA, Simpson AJA).

98. Subject to the rules, costs are in the discretion of the Court: CPA s 98(1)(a). In this regard, UCPR r 42.1 provides:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

99. A departure from this general rule should only be taken “for some reason connected with the case”: Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812 (Viscount Cave LC); Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (Latoudis) at 569 (McHugh J); Valuer-General (NSW) v Pyntoe Pty Ltd [2013] NSWCA 346; 197 LGERA 187 at [18] (Macfarlan JA, Gleeson JA and Tobias AJA agreeing).

100. True it is that “there is a longstanding principle that the Crown or State, as prosecutor, neither receives nor pays costs of a criminal trial”: Downey v Acting District Court Judge Bolton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [67] (Basten JA, Allsop P and Macfarlan JA agreeing). There is no statutory power to make such an order in proceedings on indictment, although there is with respect to summary proceedings: Criminal Procedure Act 1986 (NSW) s 257B. But despite the propinquity between contempt proceedings and the criminal law, it is not correct to draw on the costs position in the criminal jurisdiction to inform the Court’s discretion here: Hinch at 89.

Costs as compensation

101. In both civil and criminal proceedings, costs are awarded not to punish an unsuccessful party but to indemnify the successful party against the expense to which he or she has been put by reason of the proceedings: Latoudis at 543 (Mason CJ). Its function in this regard is compensatory, not punitive: at 567 (McHugh J). The nature of that order does not depend upon whether it is made in civil litigation, disciplinary proceedings or summary criminal proceedings, even though the considerations relevant to the exercise of the discretion in those various contexts are not necessarily identical: Ohn v Walton (1995) 36 NSWLR 77 (Ohn) at 79 (Gleeson CJ).

102. The same principle applies in proceedings in which punishment is imposed. As was put by Wilson J (with whom Beech-Jones CJ at CL and R A Hulme J agreed) in the context of a summary prosecution in SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 (Williams Timber) at [37]:

“Although it no doubt feels like an additional punishment to the offender ordered to pay the prosecutor’s costs, a costs order of that nature is not made to penalise the offender; it is made to compensate the prosecuting authority for its legal expenses.”

103. It is therefore in error to treat a costs order as a form of punishment and, consequently, to use a refusal to make a costs order as a means of ameliorating the penalty imposed: Williams Timber at [45].

104. Because an order for costs is intended to indemnify a successful party, there is no basis to refuse to award costs in favour of the Prothonotary merely because he is a public officer. In this regard, McHugh J observed in Latoudis at 567 relevantly as follows:

“Once it is perceived that costs operate as an indemnity and that the rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for the costs incurred in bringing or defending the action, no ground exists for distinguishing between informants in summary proceedings who are public officials and those who are private persons.”

105. On this basis, it is immaterial to the exercise of the discretion to award costs that the prosecutor acts in the public interest and is funded by the State, that they may receive a moiety of a fine imposed pursuant to s 122(2) of the Fines Act 1996 (NSW), or that there may be a perception that the public interest in the prosecution is exhausted by the imposition of a fine: Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [65]–[74] (Basten JA, Hoeben CJ at CL and Walton J agreeing). The position in this case is a fortiori because this is not a summary prosecution and the Prothonotary is not an informant; it is a civil proceeding in which he is the Plaintiff.

Costs and penalty

106. The Court’s power to award costs in these proceedings arises under the CPA and the UCPR. Neither confines that power by reference to the penalty the Court imposes as punishment for the contempt. Both costs and a punitive order or orders may be imposed. Such an order may even be made where a contemnor is imprisoned: Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 (Seven Network) at [89], [97] (Rees J).

107. Because a costs order is compensatory, the quantum of costs for which a contemnor is otherwise liable should not be reduced to accommodate any pecuniary penalty imposed. In criminal proceedings, where an offender’s capacity to pay is in issue, the correct approach is to reduce the fine imposed in light of the costs liability, rather than the other way around: Williams Timber at [41], [45]. The position is the same in contempt proceedings, where a court “may take into account the financial impact that will be visited upon the contemnor by the making of an adverse costs order” when fixing a penalty: N Adams and B Baker, “Sentencing for Contempt of Court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020 at par 145. In this vein, while impecuniosity is not a ground for refusing to make a costs order, the “severe effect [a] costs order is likely to have” on a contemnor may be a basis to reduce the amount of a fine imposed or suspend its operation: Prothonotary v Hirata [2000] NSWSC 684 at [27]–[28] (James J).

108. Again, that is not to say that an order for costs is a form of punishment. It is not. There is a risk that previous decisions of this Court may be construed to imply that an adverse costs order forms part of the suite of punishments a court may impose for contempt: see, eg, Street at [21] (Brereton J); Seven Network at [7] (Rees J). To my mind, such a construction would be inconsistent with principle for the reasons given above.

109. In cases of civil contempt, it is sometimes said that no penalty may be called for where an adverse costs order has been made against the contemnor. However, that approach largely depends upon the character of civil contempt proceedings, which are essentially coercive and remedial. If a contempt has been purged after a motion is brought for a declaration and punishment, it may be that the purpose of the contempt proceeding has been vindicated and there is nothing more left to do apart from indemnifying the party which brought the motion by an order for costs in their favour. But that does not alter the compensatory character of a costs order.

Consideration

110. In this case I have decided to imprison the Contemnor without imposing a fine. In so doing, there are two principal reasons why I decline to make an order for costs.

111. The first reason is the Prothonotary’s attitude to his prayer for relief. As noted above, Dr Kell SC did not have instructions to abandon the claim for costs. However, and tellingly, he made no submissions in favour of it. Instead, he invited the Court to consider whether such an order was “necessary or appropriate in the circumstances of the case” in light of the Contemnor’s circumstances. Those circumstances include that he is legally aided, is unemployed, is in receipt of Centrelink benefits, and lives with and cares for his mother. Moreover, in consequence of my judgment, he is to be sent to gaol for six months.

112. The Prothonotary’s ultimate attitude to the claim for costs is a relevant consideration in the exercise of my discretion: Street at [19] (Brereton J). There is no doubt that impecuniosity is not by itself a sufficient ground to depart from the usual rule that the successful party be indemnified for its costs. But it must be recalled that the power to order costs is to be understood as conferring a power to be exercised for the purpose of indemnifying or compensating that party: Ohn at 79 (Gleeson CJ). Here, the party who would otherwise be entitled to the benefit of that order has not made any submissions in favour of it and indeed has invited the Court to consider the Contemnor’s personal circumstances apparently with a view to not making such an order. This is a significant discretionary factor which tells against the making of a costs order.

113. The second reason is what appears to be the virtually invariable practice of this Court in like cases. In the course of preparing these reasons, I have surveyed dozens of contempt cases determined by this Court over the last 30 years, some of which I was taken to by the Prothonotary. I have not found a case where a full-time custodial order was imposed against a contemnor in proceedings brought by the Prothonotary or a registrar and an adverse costs order was made. In contempt proceedings brought by private parties, there appear to be four such cases. Two concerned serial contemnors: Seven Network at [89] (Rees J); Commissioner for Fair Trading v Rixon (No. 5) [2022] NSWSC 146 at [72(3)] (Dhanji J). In another, the contemnor appeared to concede a costs order was appropriate: NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 at [98] (Bell P). An order for costs accompanying a full-time custodial order is vanishingly rare.

114. This longstanding and consistent practice undoubtedly informed the conclusion of the learned Chief Judge at Common Law in Majak at [93] adverted to above, namely, that “[a]lthough the Prothonotary sought an order for costs, I do not propose to make such an order given that the contemnor has received a custodial term”. The orderly administration of justice requires that the Court exercise its discretion consistently in like cases, to the end it “not be open to the reproach that it is adventitious”: Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 at 536 (Brennan J). In circumstances where the Prothonotary has not ultimately put any submission as to why I would depart from this consistent practice, I do not consider that this is an appropriate case to do so.

Conclusion

115. For those reasons, in the exercise of my discretion I have determined that it is appropriate to depart from the usual rule and make no order as to costs.

Orders

1. The Court declares that Oscar Casper is guilty of contempt of the District Court of New South Wales in that, between 20 May 2024 and 22 May 2024, Oscar Casper, who had been served with a subpoena to attend to give evidence in criminal proceedings brought by the Crown against Mr B, wilfully refused to give evidence in the proceedings.
2. Oscar Casper is committed to a correctional centre for a period of 6 months to commence on 13 August 2026 and expire on 12 February 2027.
3. No order as to costs.

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