Prothonotary of the Supreme Court of NSW v Arzhang Jalalabadi

Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 Wood v Staunton (No. 5) (1996) 86 A Crim R 183 Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 CASES CITED : R v Israil [2002] NSWCCA 255 R v Fahda [1999] NSWCCA 267 R v Harb [2001] NSWCCA 249 R v Lauritsen [2000] WASCA 203; 114 A Crim R 333 R v Tsiaras [1996] 1 VR 398 R v Du Randt [2008] NSWCCA 121

PARTIES : Prothonotary of the Supreme Court of NSW (Plaintiff) Arzhang Jalalabadi (Defendant)

COUNSEL : L Babb SC/A Mitchelmore (Plaintiff) M Avenell (Defendant)

SOLICITORS : I V Knight - Crown Solicitor (Plaintiff) Hanby & Associates Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2007/12465 PROTHONOTARY OF THE SUPREME COURT OF NSW v Arzhang JALALABADI

JUDGMENT 1 SIMPSON J: By summons filed on 17 May 2007, the plaintiff (the Prothonotary of this Court) seeks a declaration that the defendant, Mr Jalalabadi, is guilty of contempt of court, committed on 2 August 2004, and consequential orders, including "an order that Mr Jalalabadi be punished or otherwise dealt with …" and an order that he pay the costs of the proceedings. 2 On 6 August 2008 the defendant appeared in this Court to answer that allegation; on having the allegation read to him, and after having received legal advice, he admitted his guilt of the charge. 3 The evidence, to which I will shortly refer, establishes that that admission is properly made. It is therefore appropriate to make a declaration in the form sought. Accordingly, I declare: " … that the defendant is guilty of contempt of Court in that having been served with a subpoena to attend and give evidence at the criminal trials of Mohamed Khawaja, Kassam Khawaja and Sayed Adolhamid Mostajaboldaveh at the District Court in Sydney on 2 August 2004, the defendant failed to attend in accordance with the terms of the subpoena."

It is therefore necessary to consider what, if any, penalty ought to be imposed.

The facts 4 The evidence concerning the conduct of the defendant that amounts to contempt was put before me by way of an agreed statement of facts. In short, the circumstances were these. 5 In December 2002 detectives were investigating an armed robbery committed at a convenience store in Caringbah on 20 December 2002. They had reason to believe that the defendant had, or may have had, information that would assist in identifying the perpetrators. He participated in an interview with police, which was electronically recorded, and he subsequently signed a statement that was prepared from information he there provided. 6 Three men were charged with having committed the armed robbery. Their trial was fixed to commence on 2 August 2004. Prosecution authorities required the defendant to give evidence in the trial. A subpoena was served upon him on 29 June 2004. Although the defendant declined to accept service, there is no doubt, and the defendant does not contest, that it was properly served, and commanded him to attend at the District Court in Sydney on 2 August 2004 for the purposes of giving evidence in the trial. 7 Thereafter, detectives made considerable efforts to contact the defendant, inter alia, to request him to co-operate with the trial preparation by attending a conference with the Crown prosecutor. On at least one occasion, one of the detectives did succeed in making contact with the defendant. The detective also wished to provide the defendant with a copy of his statement and some information about the court proceedings and the requested conference with the Crown prosecutor. On 27 July 2004 the detective attended the defendant's home. The defendant had absented himself. In accordance with an arrangement that had been made between them, the detective left the documents under the defendant's door. These included a second copy of the subpoena. 8 On 2 August 2004 the defendant failed to attend court in response to the subpoena. A bench warrant was issued for his arrest. Attempts to serve it upon him were unsuccessful. It is a fair inference, from the agreed facts, that the defendant deliberately evaded service. Detectives continued, repeatedly, to attempt to contact the defendant, but, with one exception, without success. The exception was that on 5 August the defendant telephoned the detective and undertook to see him the following day. He failed to do so. 9 The trial proceeded without the evidence of the defendant, the trial judge rejecting an application by the Crown prosecutor to have the contents of his interview and statement admitted under s 65(2) of the Evidence Act 1995. 10 The trial continued until 19 August, during which time detectives unsuccessfully maintained their efforts to contact the defendant and have him attend court. Two of the three accused were, notwithstanding the unavailability of the defendant's evidence, convicted. The third accused was acquitted.

Subjective circumstances 11 Also before me, in the material produced by the plaintiff, was the defendant's criminal history, and a comprehensive psychiatric report of Professor David Greenberg. From this information the following emerges. 12 The defendant was born in Iran in September 1982; as at the date of the contempt, he was six weeks short of 22 years of age. He is now 25 years of age. He had a troubled early life, his parents separating when he was a teenager. His mother migrated to the United States, initially taking the defendant with her, but after six months sent him to Australia to live with his father, who had migrated to this country. The defendant had a poor relationship with his father and his new wife; his father declined to accommodate him from the time he was 17. His education was disrupted and limited. 13 The defendant has some, but relatively limited, criminal history. In October 2002 he was convicted of probably one, but possibly two, offences of affray (the record is a little confusing) in respect of which a suspended sentence of imprisonment for 9 months was imposed. There appear to be some offences of breaches of bail, and one of offensive language, which may have post-dated the contempt. In any event, I regard the criminal history as immaterial to the present exercise. 14 The most significant aspect of the defendant's history and background concerns his mental health. Dr Greenberg found a schizophrenic disorder, first diagnosed in 2003. It may well have existed prior to that diagnosis. The defendant attributes his psychiatric illness to a specific instance of use of the drug ecstasy, which, he claimed, was contaminated with LSD. Dr Greenberg did not comment on the accuracy or otherwise of this self assessment, and, for present purposes, it does not matter whether it is correct or not. What is significant is that the defendant reports a variety of psychotic symptoms, including the Devil trying to control his thoughts, and ghosts trying to make contact with him. 15 Dr Greenberg was of the view that the defendant's mental illness should be seen as "a significant contributing factor" in his contempt. I accept that analysis, which is not questioned by the plaintiff. 16 The exercise of imposing penalty in respect of contempt of court is akin to imposing penalty in respect of any criminal offence, and operates upon the same principles: Registrar of the Court of Appeal v Manian [No. 2] (1992) 26 NSWLR 309. The factors to be taken into account have been conveniently catalogued by Dunford J in Wood v Staunton (No. 5) (1996) 86 A Crim R 183, and adopted by McDougall J in Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 and by Hamilton J in Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177. Those factors are:

(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 enquiry;

(4) whether the contempt was committed in the context of serious crime;

(6) whether the contemnor has received any benefit from 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;

(10) denunciation of the contempt. 17 Not all of these factors will be significant in all cases. While I take all that are relevant in the present circumstances into account, some need now to be specifically addressed.

The seriousness of the contempt 18 I have above given a reasonably full account of the facts and circumstances surrounding the contempt. However, I make it plain that, in assessing the seriousness of the defendant's contempt, I do not take into account his refusal or failure to co-operate with police by participating in a conference with the Crown prosecutor, by accepting telephone calls or by fulfilling his promise to call on the detective. The contempt was constituted by the defendant's failure to attend the District Court on 2 August 2004 in accordance with the obligations imposed by the command embodied in the subpoena. These other circumstances cast light only upon the assessment of the extent to which that contempt was deliberate and premeditated. 19 Nor do I take into account the outcome of the trial. It would be quite wrong to speculate that the third accused might, had the defendant given evidence, have been convicted. 20 Having said that, it is plain on the evidence that the contempt was deliberate, and therefore a serious interference with the administration of justice. A subpoena is an order of the court, and disobedience of an order of the court is no trifle. The administration of justice depends upon compliance with orders of the court.

The reason for the contempt 21 The defendant has given no direct explanation for his contempt. He told Dr Greenberg various things, including that he had not received the subpoena. He acknowledged that the police said that they had left it under the door, but said that he did not sign for it "and therefore it never happened". (His admission in these proceedings negates that explanation.) He also told Dr Greenberg that he was afraid to go to court because he had received a telephone threat from an anonymous source and considered it "risky" to attend court. He also said that because he had not received the subpoena, he did not take it as a serious matter. Dr Greenberg recorded him as saying various other things which do not assist in determining the real reason for his non-attendance.

Deterrence 22 In most cases of contempt of court, particularly contempt constituted by disobedience to a court order, both general and personal deterrence are matters of considerable significance. However, as senior counsel for the plaintiff readily accepted, this is a case in which the emphasis to be laid on questions of personal deterrence is significantly limited by reason of the defendant's mental illness. The principles have been stated on many occasions, and need not be re-stated. I simply refer to R v Israil [2002] NSWCCA 255; R v Fahda [1999] NSWCCA 267; R v Harb [2001] NSWCCA 249; R v Lauritsen [2000] WASCA 203 ; 114 A Crim R 333; R v Tsiaras [1996] 1 VR 398; R v Du Randt [2008] NSWCCA 121. 23 Indeed, senior counsel for the plaintiff went so far as to accept that a non-custodial penalty would, for this reason, be appropriate. I agree.

Delay 24 I mention also, as was submitted by counsel for the defendant, that there is evident considerable delay in the prosecution of this contempt. The contempt was committed in August 2004; the summons was issued on 17 May 2007. No explanation for that delay has been forthcoming.

The admission of guilt 25 The defendant is entitled to recognition of the utilitarian value of his admission of guilt, although, in the light of the plaintiff's concession as to a non-custodial penalty, a "discount" in the accepted sense cannot be applied. 26 Senior Counsel for the plaintiff sought the imposition of a bond, suggesting as conditions of the bond that the defendant be required to accept the supervision and guidance of the Probation and Parole Service, and accept and comply with all directions given by that Service, particularly in respect to treatment for his diagnosed psychiatric illness. 27 While it is plain to me that the defendant would benefit from psychiatric treatment, I do not think that a contempt of court is a suitable basis upon which to require either the intervention of the Probation and Parole Service, and in particular its control of the defendant's psychiatric condition and its treatment. I decline to impose such conditions. 28 I have, however, considered whether a bond is appropriate as some symbolic indication of the seriousness with which this Court views conduct such as that which the defendant has admitted. I have concluded, not without reservations, that it does not. A bond serves a number of purposes: it leaves open the prospect of punishment for the offence in respect of which the bond is imposed in the event of breaches of the conditions of the bond, including the principal condition, to be of good behaviour. It would not be appropriate, in the present circumstances, to punish the defendant for this contempt in any way other than by a declaration that it was committed. It is therefore superfluous to take a course which would (theoretically) leave open the possibility of subsequent punishment. Otherwise, a principal purpose of a bond is to enable the Probation and Parole Service to supervise the offender so as to facilitate, so far as possible, rehabilitation, and circumvent future offending. I have already stated my view that this is not, in this case, appropriate. 29 Accordingly, I decline to impose any penalty. The recognition of the defendant's conduct as contempt is sufficient to mark the Court's disapproval, in this case, of that conduct.

Costs 30 One of the orders sought in the summons was that the defendant pay the plaintiff's costs of the proceedings. No argument was addressed to that claim. It does not seem to me to be appropriate that I make such an order and I decline to do so.

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