R v Allan Dennis Pena; R v RY

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: District Court Act 1973 Evidence Act 1995

R v Basha (1989) 39 A Crim R 337 Filippetti (1978) 13 A Crim R 335 CASES CITED: Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 R v Minani [2005] NSWCCA 226 Wood v Staunton (No 5) (1995) 86 A Crim R 183 Callanan v Bush [2004] QSC 088

R PARTIES: Allan Dennis Pena RY

Crown: Mr J Crespo COUNSEL: Defence: Mr McGrath (for Mr Pena) Defence: Mr Young SC (for RY)

Crown: Mr Thompson SOLICITORS: Defence: Mr Katsoolis (for Mr Pena) Defence: Mr Kyriacou (for RY)

1 RY has objected to giving evidence under section 128 of the Evidence Act on a Basha inquiry during the trial of the accused.

2 A warrant was issued to bring RY to court for the Basha inquiry. The Crown did not propose to call RY simply making him available if the defence wished to examine him. There was no statement from RY.

3 The issues were: (a) whether RY should be directed to answer questions from defence counsel about his involvement with the accused in various offences;

(b) whether he should be granted a certificate under section 128 in relation to his evidence; and

(c) what steps should be taken in the event that he refused to answer questions put to him.

4 The accused is charged with the following counts on an indictment of supplying a prohibited drug, namely 1.8559 kg of methylamphetamine on 31 May, 2006 pursuant to s25(2) of the Drug Misuse and Trafficking Act 1985; in the alternative, knowingly take part in the supply of the same quantity of the same drug.

5 RY has been charged with a number of offences, including matters identical, or very similar, to the charges brought against the accused. Those are currently listed in the Local Court. He also has an outstanding murder charge against him which is listed for trial in the Supreme Court on 21 April 2008. Facts

6 The factual background to the matter and to the questions to be asked of RY is as follows:

7 At about 8:50 pm on 31 May 2006, police went to premises at 46 Young Street, Mount Pritchard in outer western Sydney. Officers from the Tactical Response Group (TRG) surrounded the premises. Ultimately, they arrested RY and took him to the Fairfield Police Station. Subsequently, the accused, Mr Pena, left the premises and was also arrested.

8 The police then searched the premises and found a large amount of drugs including items and paraphernalia said to be indicative of the supply of drugs and an associated large amount of money - about $57,000.

9 There were three prior relevant controlled purchases of drugs involving a police undercover operative and others on 19 May, 23 May and 31 May, 2006. That last occasion was at about 5:30pm, about three hours before the accused was arrested. Those purchases did not involve either the accused or RY. The earlier transactions occurred at other premises.

10 In all those purchases, approximately $57,000 in Australian currency notes were used as controlled monies. The police recorded the serial numbers of the currency notes used. Some of those controlled monies from each of the three purchases were found in the premises said to be occupied by RY and the accused.

11 Some of the other controlled money was found in common areas of the premises, including the lounge and bathrooms, as well as in what was known as bedroom one, said to be occupied by RY.

12 The Crown case in relation to the accused was that there was a joint criminal enterprise between the accused and RY in relation to the supply of the drugs located on the premises.

13 The drugs the subject of the indictment were located in the lounge room and in containers and bags found in the kitchen. The Crown relies on a number of items of evidence as part of its overall circumstantial case and to establish the elements of deemed supply. In brief, those were - in addition to the drugs and the money - mobile phones, scales, grinders, a pill press machine, heat sealing machines, plastic bags capable of being sealed, chalk and food colouring.

14 Those items were located on the premises in areas accessible by both the accused and RY. The premises were leased by the accused and said to be occupied by him and RY. There is no evidence that there was anyone else present in the house when it was searched by the police or at any other time.

15 Defence counsel wished to cross-examine RY, clearly to establish that he had access to the areas of the premises where the drugs were located to establish a Filippetti defence (Filippetti (1978) 13 A Crim R 335).

16 The defence only wishes to cross-examine RY on matters relating to those charges and not the other firearms charges which have been brought against him nor the murder charge on which he faces trial in the Supreme Court in April, 2008.

17 The first question to RY which brought about an objection was whether he occupied the premises with the accused. RY's initial response was that he did not wish to answer any such questions in relation to the drug matters as he had not focussed on those matters (transcript T 17/09/07 p 4). RY was aware that he had been charged with the same charges 'maybe more' - apparently also relating to various firearms charges (exhibit vd 1). It could be anticipated that he was pre-occupied with the matters relating to the murder trial against him in April, 2008.

18 I informed RY on 18 September 2007 (T 17/09/07 p8) that I did not regard that as a sufficient reason not to answer the question put. I had outlined to RY the provisions under section 128 of the Evidence Act. I then gave him the opportunity for an adjournment overnight to obtain legal advice. That occurred and Mr Young SC appeared for RY the following morning when the procedure which would be followed was outlined.

19 Mr Young SC, on RY 's behalf, submitted that the basis for RY's objection to the question relating to his occupancy of the premises, and all the questions which were likely to follow, was that the evidence given by him would tend to incriminate him on similar charges to that facing the accused.

20 I gave RY the opportunity for a further adjournment to confer with Mr Young SC during the course of the cross-examination.

21 I was satisfied that the answers to the questions may have tended to prove he had committed an offence under NSW law. I then informed RY that I would propose to grant him a certificate (T 18/9/07 p. 13 line 14ff) should he wish to maintain his objection.

22 The question was then re-asked. RY maintained his objection (T 18/9/07 Pg 13 Line 46).

23 I over-ruled that objection (T 18/9/07 Pg 13 Line 51).

24 I determined that it was in the interests of justice that RY give answers to the question. The factors relevant to my assessment that the interests of justice required RY to give that evidence were: the fact that the evidence was important evidence in the context of serious charges being brought against the accused; further, that the answers may well have been relevant to providing a defence to the accused in that the Crown may well not be able to eliminate the possibility that others could have had access to the area where the drugs were located.

25 I then directed RY to answer the question. His response was that 'I can't' (T 18/09/07 p 14 line 20ff). He added shortly afterwards "Anything got to do with drugs, I'm not going to answer none of those questions today. If it's got something that got to do with Mr Pena was working or something like that I'll answer. Anything to do with drugs, I'm not going to answer nothing like that today." (T 18/9/07 P16 L5)

26 That intention not to answer questions was also confirmed through his counsel and RY himself. RY answered other questions.

27 The second area of questioning to which objection was taken was whether RY was aware of the pill press located at the premises. The pill press was relied on by the Crown as one of the indicia of supply.

28 The same objection was taken and the same procedure was followed and the same attitude was indicated by RY (T 18/09/07 p 18). RY was given a further opportunity to confer with Mr Young SC.

29 Following RY's wish not to answer questions or to respond to the matters put to him, I advised him as follows (T 18/9/07 Pg 14 L12): Q. That might be your wish, but you see I'm directing you to answer that, and I should indicate to you that if you refuse to answer it, then it is likely that you would be required to show cause why you are not in contempt of court for refusing to comply with my direction. Do you understand what I have just said to you? A. Yeah.

and (T 18/9/07) p. 18 l. 49 ff): Q. I think I need to inform you at this stage also, RY, that again, in the light of that refusal to answer that question, that may indicate that you are in contempt of my direction. You understand that? A. Yeah.

Q. That would have to be dealt with separately as a contempt matter. You understand that? A. Yes.

30 I then required RY to give evidence. RY maintained his refusal to answer the questions put to him. That procedure was repeated in relation to each bracket of questions the subject of the charges.

31 RY was then informed of the likely charges against him (T 18/09/07 p 26 l 40 ff and T 18/09/07 p 26 l. 50 ff.) The hearing of those charges was stood over to the end of the trial. RY was told he would be required to make his defence to the charges in accordance with section 199(3) of the District Court Act.

32 Following a further mention of the matter, and before RY was required to make his defence to the charge pursuant to section 199 (3) (b) of the District Court Act, he was informed of the charges as follows: 'You are charged with refusing or failing to comply with a direction given by a Judge of the District Court in Sydney on 18 September, 2007 that you, being duly sworn and being a competent and compellable witness, answer a question about where you lived, you having been directed to answer that question and having refused without justification to answer that question.' and

'You are charged with refusing or failing to comply with a direction given by a Judge of the District Court in Sydney on 18 September, 2007 that you, being duly sworn and being a competent and compellable witness, answer a question as to whether you were aware of the presence of a pill press at 46 Young St., Mt Pritchard, you having been directed to answer that question and having refused without justification to answer that question.' Certificate in relation to other evidence.

33 RY answered some other questions albeit in a context where it seemed to me that he may have misunderstood whether answers were being required of him formally to respond to other questions on which he had not had the opportunity to obtain advice.

34 An objection was foreshadowed by Mr Young SC to those matters and he had clearly advised his client to that effect.

35 As a matter of abundant caution I granted a certificate to RY in relation to the other evidence he had given not the subject of the questions to which he had taken specific objection and in relation to which he had refused to comply with the direction given.

36 Mr McGrath, for the accused, indicated that, given RY's reponses and the potential for an adverse impact on the accused's case, he would not be calling RY in the trial.

37 On 20 September 2007, the Crown sought to tender additional material relating to telephone calls which were intercepted between the accused and others which suggested that the premises had been leased and organised as a house for drug related operations. That totally contradicted what defence counsel (and the Crown Prosecutor) had been told prior to the commencement of the trial - namely, that there was no evidence that the accused had any involvement with others who were the subject of inquiries. That, in turn, meant that the opening by counsel for the defence was clearly incorrect. There was therefore a real risk that there would be prejudice to the accused which could not be rectified. The jury was discharged.

38 Following discussions, an amended indictment was presented and the accused then pleaded guilty. The statement of facts tendered in relation to the amended indictment does not indicate matters going to establish joint possession.

39 There is power under section 203 of the District Court Act for such proceedings to be transferred to the Supreme Court for determination. That power would seem to provide a useful circuit-breaker in the event of tensions arising in proceedings and to avoid issues arising out of perceptions in such contempt proceedings that the presiding judge is acting effectively in the capacities of prosecutor, judge and jury.

40 No application was made by any party for the transfer of these proceedings. Indeed, both Mr Young SC and the Crown submitted that it was appropriate that the matter remain before me in the District Court. The transcript will indicate the tenor of the proceedings before me.

41 Having regard to the circumstances of the matter as outlined above, the matters the subject of the contempt proceedings, and the relative importance of the matters in the context of this trial, with which I am familiar, and any future proceedings involving RY and the other co-accused, it seems to me appropriate that the matter be dealt with by me.

42 There would be delays and further expenses incurred if the matter was to be transferred to the Supreme Court which, in my view, are not warranted in these circumstances.

43 On the return of the matter at the conclusion of the trial, RY was required to make his defence. He said that he intended to plead guilty.

44 The Crown submitted that matters of general and specific deterrence should be given proper weight.

45 Mr McGrath submitted that RY had acted out of concern for the possibility of self-incrimination and that, in any event, the trial had concluded and RY's evidence was not needed. While that may be so, that was not evident at the time the contempt was committed.

46 Mr Young SC for RY addressed the factors set out in per Studdert J in Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 which I will refer to below. In brief, he submitted that RY had not shown any disrespect to the Court or any other party; further that his actions did not cause the trial to abort. The reasons for the refusal related to RY's desire not to incriminate himself as well as the motivation to avoid incriminating others who may well have been involved in those premises. Mr Young SC also submitted that the plea was an indication of remorse.

47 The provisions governing these proceedings are set out in section 199(3) of the District Court Act

48 These proceedings take place before me sitting as a judge alone, having outlined the charges I have formulated against RY. In those circumstances I regard the principles to be applied as analogous to those applying in the case of a trial by judge alone - R v Minani [2005] NSWCCA 226 (per Hunt AJA, Spigelman CJ and Howie J).

49 That being the case, I need to make it clear that the proof required is that beyond reasonable doubt. Here there seems to be no issue that RY did fail to comply with the directions given to him and that all the other elements of each charge have been made out. Indeed, there has been no serious contest of any of those matters.

50 Accordingly I find RY guilty on each count and convict him accordingly.

51 The maximum penalty applicable under section 199(7) of the District Court Act is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 28 days.

52 Punishment for contempt of court attracts the application of sentencing considerations generally applicable - per Studdert J in Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 at [13]. I take into account the factors listed in that decision - at [17] - referring to Wood v Staunton (No 5) (1995) 86 A Crim R 183 at 185, namely: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself of what he did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt. Consideration

53 RY's refusal to answer was a serious contempt. Moreover, it was deliberate and occurred after he had had an adjournment to give him the opportunity for legal advice from Senior Counsel and to consider his position.

54 RY's response occurred in circumstances where he was aware that he would be likely to be regarded as being in contempt. Moreover, the contempt occurred in the context of a serious crime, namely, the charges faced by the accused which were clearly understood by RY. He is facing the same or very similar charges.

55 No reason was advanced for the refusal to comply with the direction other than the desire to avoid self-incrimination and the fear of others who might be involved. That refusal was very deliberate and essentially summarised in terms of his statement that, '…anything in relation to the drugs, I'm not going to answer none of those questions today'.

56 I am in no doubt that RY was determined not to answer any questions and was well aware of the consequences of his refusal to obey my direction.

57 Such an action strikes very much at the heart of the system of administration of justice and potentially deprived the accused of an evidentiary basis for his defence. RY is a mature individual who displayed a quick appreciation of what was going on. This was not a case of someone who was overwhelmed by the proceedings.

60 What has occurred has been a contempt in the face of the court and in circumstances where RY's refusal to comply with the direction was a deliberate course of action adopted. Further, he had had the opportunity to obtain advice and consider his position. RY had also had outlined to him the certificate procedure available under section 128 of the Evidence Act and an indication that I would be prepared to grant such a certificate.

61 Against that background, RY's response was not an emotional over-reaction in the course of a trial but rather a deliberately considered decision. It was taken in the context of serious criminal charges against the accused where that accused was denied the opportunity of obtaining evidence - or, in the context of a Basha inquiry, seeing whether such evidence would be available - as an essential part of his defence.

62 The consequences of the refusal were that the accused (and for that matter the Crown) was left with no option but not to call RY in the trial. That effectively diminshed the capacity of the accused to establish the foundation for the accused's Fillipetti defence.

63 There has been no expression of remorse of apology other than as is inherent in the plea.

64 RY's character and antecedents are that he has a minor summary conviction for a possess drug matter. There is no evidence as to his financial or other circumstances.

65 Although there was a relationship of co-tenancy between RY and the accused, this is not a situation where there is, on the evidence before me, any significant personal relationship between the offender and the accused - as was the case in Callanan v Bush [2004] QSC 088, being a relationship between the offender and her husband where spousal privilege had been advanced. In fact the evidence seems to be here that RY and the accused had not known each other for a long period prior to occupying the premises.

66 I am unaware of RY's financial circumstances. However, in the context where RY is in jail pending the hearing of the murder charges against him, a fine is not appropriate. This is a matter where I consider the requirements of both general and personal deterrence mandate the imposition of a separate and distinct custodial penalty.

67 There is no other penalty which would mark a proper denunciation of the contempt which has occurred. Courts cannot and will not permit an individual to pick and chose when they will respond to questions. No other sentencing option is available or would be appropriate.

68 Here it does seem to me appropriate that the sentences on each count should be served concurrently. The questions arose in the one set of proceedings and essentially related to the same subject matter.

69 RY will be on remand until April, 2008. In my view, it is important that sentences on contempt matters should be marked by an immediacy of impact and should not be stood over until the conclusion of another sentence unless there are other relevant circumstances.

70 However, RY was under no doubt what was to happen from 18 September at a time when he was in custody, albeit on remand. In my view the period of imprisonment should operate from that date.

Orders: 1. RY is found guilty of and convicted of contempt of court;

2. On each count he is sentenced to 14 days imprisonment, such sentences to be served concurrently backdated to commence on 18 September, 2007 and expire on 2 October, 2007;

3. I grant a certificate pursuant to section 128 of the Evidence Act in relation to evidence given by RY on 18 September, 2007 in response to questions other than the questions in relation to which directions were given.

Note 4. In the event that this ruling is published, Mr Y should be referred to as 'RY' as there are related outstanding indictments against other co-accused.

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