R v Abdallah; In the matter of John Leger

EX TEMPORE Judgment 1I am sentencing John Leger for the offence of contempt in the face of the Court to which he has pleaded guilty. 2This procedure is a summary hearing of the charge which was laid by me on 17 of February 2014. 3In those circumstances the Attorney General has approved the appointment of Ms Baker, a solicitor advocate employed by the Crown Solicitor's office, as amicus curiae to assist the Court in the proceedings. Mr Clark of counsel appears for Mr Leger. The facts constituting the offence are not in dispute. 4The terms of the charge to which Mr Leger has pleaded guilty are of being in contempt of the Supreme Court of the New South Wales arising out of his unlawful refusal to answer questions asked of him in the trial of R v Abdallah. In the following recitation of the relevant facts I have drawn upon the excellent written submissions prepared by Ms Baker. 5The Crown case at the trial was that Mr Abdallah shot Neal Todorovski six times with a handgun at about midday on 4 January 2012 in a residential street in Sans Souci. 6That shooting, on the evidence that I heard as trial judge, was part of a continuum of events that included an allegation that after shooting Mr Todorovski at least three times, and possibly six at that time, Mr Abdallah gave chase to Mr Leger, an associate of Mr Todorovski's and in the course of that chase discharged his firearm. 7The trial before me and a jury of 12 concluded on 17 March 2014 by the jury returning a verdict of guilty of the murder of Neal Todorovski but not guilty of the attempted murder of Mr Leger. The latter offence was allegedly constituted by the pursuit I described. The Crown case was that Mr Abdallah had discharged the pistol at Mr Leger with the intention of shooting and killing him. In the absence of the evidence of Mr Leger the Crown case in that regard was, at least in my assessment, entirely circumstantial. 8Mr Leger, as I said, was an associate of Mr Todorovski present at the time he was murdered. He, however, at all times thereafter, declined in any way to provide any information to the investigating police officers. He refused to give evidence at the committal and was subpoenaed to give evidence at the trial. 9He was called as a Crown witness on 17 of February 2014. That was in the context of a Basha inquiry carried out for the purpose of ascertaining what evidence Mr Leger could give in the trial if called as a Crown witness. Those ancillary proceedings are for the purpose of the Criminal Procedure Act 1986 (NSW) part of the trial. When he was called the following occurred: CROWN PROSECUTOR Q. Please state your full name, witness? A. John Leger. Q. Mr Leger, you have been called to assist this enquiry in respect to events on 4 January 2012 at Sans Souci, do you understand that? A. (No verbal reply.) HIS HONOUR Q. Mr Leger, are you going to answer counsel's question? A. Don't recall, your Honour. CROWN PROSECUTOR Q. Now you have uttered the words, "I don't recall", to what do you refer when you say you don't recall? Where is this memory problem? CLARK: I object. Could it be a little bit more specific than that? CROWN PROSECUTOR Q. You were at Sans Souci on 4 January 2012? A. I don't recall. Q. You don't recall, can you recall where you were on that date? A. No answer. Q. Let me ask you a simple question, do you know Neal Todorovski? A. (No verbal reply). Q. Do you know him? A. (No verbal reply). HIS HONOUR: Mr Crown, perhaps if I could intervene? Q. Mr Leger you have been called and you have made a solemn promise to tell the truth and during the time that you have been asked questions by the Crown about matters which people who knew about them might think were very memorable matters you have either said 'I don't recall' or you have sat silently and not answered the questions. Are you refusing to answer the questions that have been asked of you? A. Don't recall, your Honour. Q. No sir, please listen to my question, because it doesn't require you to cast back in your memory to answer it. Are you refusing to answer the questions that the Crown has asked you? A. Your Honour I don't remember. Q. You understand, don't you sir, that it is of fundamental importance that witnesses who are called for the purpose of criminal proceedings give evidence according to the best of their recollection. You understand that, don't you? A. (No verbal reply). Q. You have to answer verbally yes or no? A. (No verbal reply). HIS HONOUR: The witness is again sitting silently." 10Thereafter there was a discussion between me and Mr Clark of counsel, who appeared also on that occasion for Mr Leger, concerning Mr Leger's silence and the reasons for that silence. The following exchange then took place: HIS HONOUR Q. Yes Mr Leger you were present when a person shot Mr Todorovski? A. I don't recall, your Honour, I don't remember. Q. Did the same person who shot Mr Todorovski chase you down the driveway and discharge a gun at you? A. I don't remember. Q. Did the police speak to you about those circumstances on the day they happened? A. I don't remember, your Honour. Q. You understand, do you not, that you have been required to attend court today in order to give evidence at a criminal trial. That is so, isn't it? A. Yes, your Honour. Q. Did you say yes to that question? A. I said, yes, your Honour. Q. And are you refusing, Mr Leger, to give evidence in that criminal trial? A. (No verbal reply). Q. Mr Leger, I must require you to answer my question, are you refusing to give evidence in the criminal trial? A. Yes, your Honour. 11I then asked Mr Leger whether he had had the opportunity to take legal advice from his counsel about the requirement that he give evidence. He confirmed that he had. He also confirmed that he understood the court's powers in dealing with a person for contempt of court included a power to impose a fine, a sentence of imprisonment or both. 12After the contemnor was granted a short adjournment to speak to his counsel the contemnor was asked whether he was now prepared to answer such questions "as may be asked of you in these proceedings". He said "No, your Honour". 13After further argument I again warned Mr Leger that a refusal to answer questions could lead to a charge of contempt of court. He still adhered to his refusal to answer the questions and I laid the charge that I have read out at the commencement of these reasons. 14On the application of Mr Clark, on behalf of Mr Leger, I did not require a plea to be entered to the charge at that time but committed Mr Leger to custody until the conclusion of the trial with bail refused. 15As I have said on 17 March 2014 Mr Abdallah was found guilty of the murder of Mr Todorovski and not guilty of the attempted murder of Mr Leger. 16I should say that during the course of the trial, on Friday 28 February 2014 Mr Leger, represented by Mr Clark, appeared before me via audio-visual link. The purpose of that appearance was to give Mr Leger the opportunity to reconsider his position and to agree to give evidence and to answer questions required of him in the proceedings. In the light of his plea of guilty, entered formally today, I think I can put it that he was given the opportunity of purging his contempt. He declined that opportunity. 17Contempt of court is, of course, considered by the law to be a very serious offence. I have had the benefit of careful argument from both Mr Clark and Ms Baker and I have been carefully taken through the analysis of the offence of contempt in the face of the court undertaken by Buddin J in Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183 and the further analysis undertaken by Johnson J in R v Razzak [2006] NSWSC 1366; 166 A Crim R 132. 18It is unnecessary for me to fully rehearse the learning that their Honours brought to bear upon this topic for this decision. Suffice it to say that in Registrar of the Court Of Appeal v Raad (unreported NSWCA No. 40585/1991, 9/6/92), Kirby P, as his Honour then was, said: 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. 19In Smith v The Queen (1991) 25 NSWLR 1, his Honour, having reviewed these important principles, also said at 10: [There] 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 20In the same case Mahoney J observed at 23: Conduct 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. 21So far as the offender's circumstances are concerned I am informed by Mr Clark that he lives in Manly with his defacto wife and one child and is usually gainfully employed in demolition work. 22Moreover, at the very outset of these proceedings today, Mr Clark in the most eloquent terms, proffered on his client's behalf an unreserved apology for the contempt which Mr Leger now admits. 23As I have said Mr Leger has pleaded guilty to the charge and he has done so at what is effectively the first opportunity available to him. The plea was entered today. However I should record, as Mr Clark reminded me, that when this matter was mentioned at various times during the currency of the trial of R v Abdallah counsel indicated that his instructions were such that when the trial was over his client would plead guilty to the offence. 24Further a good deal of evidence has been tendered before me which suggests that as a result of his involvement in the events of 4 January 2012, in particular because he was present when Todorovski was murdered and he himself was at that time under threat from a gunman, he has suffered a degree of post-traumatic stress disorder. On the balance of probabilities I am persuaded that this condition continues to be symptomatic to some extent. In making this finding I accept the evidence of Dr Nielssen expressed in his report of 3 September 2013 (exhibit 1), the opinion of Dr Lachter, expressed in his report of 12 July 2012 (exhibit 2), and also the opinion of Miss Rosalind Dayman, a registered psychologist, in her report of 19 April 2013 (exhibit 4). I add that it may be that Miss Dayman is not fully qualified to express an opinion as to diagnosis but, given the opinions of the legally qualified medical practitioners, her account of the treatment that she rendered assisted me in making the finding that I have recorded. 25It is also clear that he first sought treatment for that condition on the 28 February 2012, within six weeks of the murder of Todorovski, and that he received treatment, as I have said from Miss Dayman. He also received treatment in July 2012 for a short time as an inpatient at South Pacific Private Hospital. Then he underwent about five weeks of outpatient treatment at that institution following his discharge. Having said that, it is convenient to interpolate at this stage that there is no suggestion that that medical condition. or the co-morbidity of substance abuse diagnosed by Dr Nielssen, in any way affected his memory such that he was unable to give an account of the events of the 4 January 2012 which he witnessed. Indeed, I think it convenient to record that he was able to give Dr Nielssen a history of the event. He told the doctor that he witnessed the murder of a close friend in early 2012 which left him with marked anxiety and intrusive images of the incident. He not only witnessed his friend's murder but also narrowly escaped being shot himself. He said he was very affected by frightening images of the experience. 26It is clear to me beyond reasonable doubt, from reading the report of Dr Nielssen, that Mr Leger had an actual recollection of the events of the 4 January which would have constituted material evidence at the trial of Abdallah. 27Whilst dealing with the circumstances of Mr Leger I should also point out that he has been in custody since the 17 February last and I accept Mr Clark's account on his instructions that during that period of time Mr Leger has been held in segregation and, generally speaking, in lockdown for periods of up to 23 hours per day. I am informed by Mr Clark that this circumstance has come about, at least in part, out of concerns the corrective services authorities may have for Mr Leger's safety in custody. 28The principles governing the imposition of a sentence for contempt of court are not in dispute between the parties and again are summarised in the written submissions of Ms Baker. They are derived from previous decisions of this court and in particular from the judgment of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. 29I should say at this point that the offence of contempt in the face of the court is a common law offence and as such it is said that the penalty is at large. In dealing with such offences courts will often have regard to any available, or near, statutory analogue which might provide a reference point for determining the maximum penalty appropriate to what might be called a worst possible case of the common law offence. I am not suggesting that this is the worst possible case of contempt in the face of the court. 30 Ms Baker has drawn my attention to various provisions in legislation dealing with commissions of inquiry instituted on behalf of the Executive Government including the ICAC legislation, the Police Integrity legislation and the Royal Commissions Act. However, I accept her submission that this legislation does not provide any true analogue, given the significant differences between a governmental statutory inquiry and a murder trial in the Supreme Court of New South Wales. 31However I have been assisted by a table of sentences in broadly similar cases totalling 23 in number. I bear in mind, however, that past sentences do not provide a range or a tariff as such and only provide guidance to the extent to which principles of general application can be derived from them. 32I turn then to the relevant factors. I have already dealt with the seriousness of the contempt proved. Contempt in the face of the court by reason of a refusal to answer questions in a criminal trial is always regarded as objectively serious. 33The second consideration is whether the contemnor was aware of the consequences to himself of what he did. In recounting the facts I have set out what was said to him when he was sworn to give evidence about the consequences of refusing to answer questions. I have emphasised that he was given an adjournment for the benefit of seeking advice from Mr Clark of counsel and that when he returned to the witness box he adhered to his previous refusal to answer questions. There can be no doubt that Mr Leger was aware of the consequences of his contempt. 34In terms of the actual consequences of the contempt it is relevant to bear in mind that this question is often determined with the benefit of hindsight. In this case we know that the absence of Mr Leger's evidence was not a bar to the conviction of Mr Abdallah for murder. However his evidence might well have been critical in the case of the attempted murder. Mr Leger was not a legally essential witness for that charge to be made good but he was a vital witness and his absence reduced the Crown case to one based purely on circumstantial evidence, no other witness being able to give a direct eye witness account as to Mr Leger being in the sights of Mr Abdallah at the time Mr Abdallah discharged what may have been the final shot from his gun. 35Moreover it is significant to bear in mind that the case of Mr Abdallah at the trial was one of self-defence, a case clearly rejected by the jury. Had Mr Leger given evidence and been subject to cross-examination by senior counsel for Mr Abdallah, his prospects of a possible acquittal, or a reduction in the seriousness of the charge to manslaughter, might have been enhanced. 36Accordingly, it cannot be said that the consequences of the contempt mattered little to the conduct of the case, even if counsel appearing in the trial reconciled themselves to the idea that Mr Leger would not be available as a witness. 37Mr Clark acknowledges, as he must, that the contempt was committed in the context of a trial for a serious crime. Murder, after treason, is the most serious crime on the criminal calendar. 38The fifth consideration is the reason for the contempt. Mr Clark advanced on behalf of his client the idea that he was scared to give evidence because of possible consequences. I bear in mind my finding that he has suffered, and continues to suffer from a degree of, Post-Traumatic Stress Disorder having witnessed his close friend being murdered and himself being threatened by a gun wielded by a man prepared to use it. I accept that those circumstances provide a basis for Mr Clark to argue that I should take into account a subjective apprehension of danger and I am so satisfied on the balance of probabilities. However such a matter falls a long way short of anything constituting duress. Moreover, in the modern criminal trial, protective measures can be instituted for the safety of a witness who has a legitimate basis for fear and no such approach, or application, was made by Mr Leger. 39The sixth consideration is whether the contemnor has received any benefit by indicating an intention to give evidence. That factor is not in play here. This is not a case where an offender agrees to give evidence for the Crown in exchange for a benefit. Mr Leger at all times indicated a refusal to make any statement or to give any evidence whatsoever about the facts giving rise to the charges against Mr Abdallah. However I am not so sure that a long history of recalcitrance operates in mitigation. 40The seventh consideration is whether there has been any apology or contrition. There has been an apology most eloquently expressed by counsel, which I am prepared to accept. The early plea not only has a utilitarian value but also might on the balance of probabilities indicate some degree of contrition. However these matters can only go so far and real contrition in a case like this can readily be shown by a witness purging his contempt during the course of the criminal trial. That did not occur here. Moreover the apology was given today at a time when there was no opportunity for Mr Leger to purge his contempt given the return of the jury's verdict yesterday. I will take the apology into account but it cannot be given very significant weight. 41I turn then to the eighth consideration, being the character and antecedents of the contemnor. His criminal record has been tendered on these proceedings as exhibit A. I accept Mr Clark's submission that it is mostly characterised by the most appalling driving and traffic record. By putting it that way I do not mean to down play the seriousness of such offences. There was a 10 year period between 2000 and 2010 when no offences of any kind were committed. 42As a juvenile he was dealt with for an assault, an offence which was dismissed with a caution. He has also been dealt with for using a prohibited weapon, being a set of knuckle dusters, with which he struck Abdallah during the events giving rise to the murder of Todorovski and also common assault, having the same basis. 43Of even more concern is an offence of assault occasioning actual bodily harm committed on 27 January 2013 which, on the history received by Dr Nielssen, was upon a female within licensed premises at a time when he may have been affected by alcohol. But, most significantly for my purposes, is at that time he was on bail for the offences with which he was charged arising out of the events of the 4 January. 44Moreover he was dealt with for those offences on the 12 February 2013 and given a s 9 bond each of 15 months' duration in respect of both of them. He was also dealt with for the assault charge in the licensed premises with a two year bond under supervision. That sentence was passed on 5 September 2013. He was also under a s 9 bond of 18 months' duration with supervision for a serious traffic offence. Accordingly, as at the time he committed the offence of contempt in the face of the court he was on no less than four bonds. The law always regards the commission of an offence whilst the offender is on conditional liberty as a serious aggravating circumstance. 45I turn then to the final matters which are points 9 and 10 which I will take together. They are bearing in mind deterrence, both general and personal, and denunciation of the contempt. As Johnson J observed in Razzak 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 p 26. 46Those comments apply with equal force to a person who has suffered to be sworn to give evidence but who has refused to answer the questions required to be answered in the trial. The related consideration of public denunciation of an abject refusal to answer questions in criminal trials must also be brought to bear. 47Bearing in mind all of these factors and acknowledging that the approach required of a judge in my position, as described by McHugh JA in Markarian v R (2005) 228 CLR 357 is one of intuitive synthesis, I have determined that no other sentence than a term of full-time imprisonment is appropriate in this case. I have borne firmly in mind Mr Clark's careful arguments about the possible alternatives that may be available by way of non-custodial penalty. However it seems to me that in all the circumstances as I have described them, and in particular when one has regard to the elements of deterrence and denunciation, that a full-time term of imprisonment is called for by way of punishment. 48In fixing the appropriate term I have of course borne firmly in mind the early plea of guilty and I have allowed the maximum discount suggested by authority as available in such cases of 25 percent. That will be reflected in the sentence I impose. 49John Leger, you are convicted of the offence of contempt in the face of the court committed on the 17 February 2014 in the trial of R v Abdallah. I sentence you to a fixed term of imprisonment of six months' duration commencing on 17 February 2014 and expiring on 16 August 2014. 50I make the following additional order on the application of Ms Baker as amicus and with the consent of Mr Clark of counsel on behalf of the offender: the record is amended throughout so that these proceedings are entitled R v Abdallah; In the matter of John Leger. I strike out any reference to the Prothonotary as the prosecutor in this matter