R v Bilal Razzak

R v Bilal Razzak - [2006] NSWSC 1366 - NSWSC 2006 case summary — Zoe

[58]

HER HONOUR: All right, well I will direct that Bilal Razzak be held in custody pending the determination of the charge of contempt of court that I have preferred against him today. I will have him brought before the Court in order to deal with him in relation to that matter upon the conclusion of the present trial. He may be removed from court." 20 It will be apparent from this extract from the trial transcript that the Contemnor's position from the outset was to refuse to take an oath or to be affirmed, asserting "I have got nothing to tell you". Her Honour gave the Contemnor an opportunity to take legal advice, which he declined. The consequences of this stance, by way of prosecution for contempt, were explained to him. The Contemnor was orally charged with contempt. He was informed that he could purge his contempt whilst the trial continued. In adopting the stance which he did, the Contemnor appeared to have taken a considered position in an unemotional way. He was removed from the Court and did not return during the trial. 21 The trial continued to its conclusion and the Contemnor was not called again to give evidence. The Contemnor's brother, Mohammad Razzak, also refused to be sworn or take an affirmation for the purpose of giving evidence. He was charged with contempt of court and has pleaded guilty to the charge. I will proceed to sentence him today after passing sentence on the Contemnor. 22 Despite the refusal of the Contemnor and his brother to give evidence, Adnan Darwiche was nevertheless convicted of the second count on the indictment. I was informed by the Crown that the evidentiary foundation for the conviction on this count comprised the evidence of Khaled Taleb, Jamal Razzak (the Contemnor's father) and police, forensic and medical evidence concerning the gunshot wounds undoubtedly sustained by the Contemnor in his home at Bankstown on 17 June 2001. 23 The Crown proposed to lead evidence from the Contemnor with respect to the shooting attack upon him on 17 June 2001 and also the background of disputation between the Darwiche family and the Razzak family. In this regard, the Crown Prosecutor held a statement dated 9 August 2001 from the Contemnor which touched upon a variety of matters relevant to these issues.

[59]

The Duress Issue on Sentence 24 Submissions were made on sentence concerning the relevance of duress to the present case. 25 The principles to be applied in a case where a person raises an issue of duress were encapsulated in R v Abusafiah (1991) 24 NSWLR 531, where Hunt CJ at CL (Gleeson CJ and Mahoney JA agreeing), observed at 545: " [w] hat the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him [or upon his family] if he did not do those acts. If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did." 26 The Crown conceded, in the present sentencing proceedings, that it could not negative beyond reasonable doubt the first leg arising from R v Abusafiah. The Crown submitted, however, that the second leg was negatived beyond reasonable doubt. 27 By his plea of guilty, the Contemnor admits the elements of the offence of contempt of court, including the second leg arising under R v Abusafiah. Mr Price, counsel for the Contemnor, acknowledged that the plea was entered upon the basis that it was accepted that the Crown could establish beyond reasonable doubt that there was no reasonable possibility that a person of ordinary firmness of mind would have yielded to the threat or fear by refusing to be sworn or affirmed for the purpose of giving evidence. 28 Accordingly, I will approach the question of sentence upon the basis that, although the Crown was not in a position to negative beyond reasonable doubt the subjective leg of duress, it was in a position to negative beyond reasonable doubt the objective leg and that the Contemnor admits that this is the case. 29 The Crown concession acknowledges that it could not establish that, at the time when the Contemnor refused to be sworn or affirmed, there was no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or his family if he did give evidence. 30 For the purpose of determining sentence, it will be necessary to consider the evidence to see if there is positive evidence that the Contemnor was affected by fear at the time. The Contemnor did not give evidence in the sentencing proceedings and this question will need to be considered in light of the evidence which is before the Court.

[60]

The Contemnor's Subjective Circumstances 31 The Contemnor was born on 6 November 1981 and was 24 years of age at the time of the subject offence. 32 His criminal record (Exhibit C) discloses a number of offences between February 2000 and March 2002. These include summary convictions for larceny, goods in custody and traffic offences. 33 On 7 February 2003, the Contemnor appeared at the Campbelltown District Court and was sentenced, for an offence of malicious wounding with intent to inflict grievous bodily harm, to a term of imprisonment for seven years, comprising a non-parole period of four years commencing on 21 August 2003 and concluding on 20 August 2007, with a balance of term of three years expiring on 20 August 2010. For an offence of possess unauthorised firearm (pistol), the Contemnor was sentenced at the same time to imprisonment for two years and six months with a non-parole period of 15 months commencing on 21 August 2002 and concluding on 20 November 2003, with a balance of term of fifteen months concluding on 20 February 2005. An appeal against conviction on the malicious wounding count, and against sentence on the malicious wounding and firearms counts, was dismissed by the Court of Criminal Appeal on 19 March 2004: R v Razzak [2004] NSWCCA 62. Both offences were committed on 20 January 2001. It does not appear that the malicious wounding offence, for which the Contemnor is presently serving a term of imprisonment, was related to conflict between the Darwiche family and the Razzak family. I do note, however, from the judgment of the Court of Criminal Appeal, that the Contemnor pleaded guilty to possessing a firearm on 20 January 2001, explaining that he possessed the pistol "for his own protection" (at [74]). 34 Accordingly, at the time of the present offence, the Contemnor was a sentenced prisoner having been in custody since 21 August 2002. 35 The remarks on sentence of Bell J, set out above, state that, in late 2000 and early 2001, Adnan Darwiche and others were involved in the supply of cannabis in South-Western Sydney and that their competition included the Contemnor and his cousins (at [33]). Her Honour found that his shooting by Adnan Darwiche of the Contemnor on 17 June 2001 was carried out "to stamp Adnan Darwiche's authority over a rival who was also involved in criminal activity in South-Western Sydney" (at [33]). 36 The Contemnor's police statement of 9 August 2001 describes his occupation as metal construction worker. Although the Contemnor's statement to police was tendered in the sentencing proceedings, he did not give evidence before me. 37 The Contemnor was 19 years old when shot by Adnan Darwiche on 17 June 2001. Bell J, at [6], found that five shots were discharged; three of which struck the Contemnor. One bullet entered his right flank and passed through his liver, vertebral columns, left kidney and part of his colon, exiting on the left side of his body. There were entry and exit wounds to his right and left knees. He was paralysed for a time, but has since recovered the use of his legs. Put shortly, her Honour found (at [7]) that the Contemnor had been kneecapped by gunshot. 38 From medical records tendered for the Contemnor in the sentencing proceedings (Exhibit 2), it is apparent that the Contemnor suffered significant injuries in the attack. He remained as an inpatient at Liverpool Hospital until discharged on 13 August 2001 to be followed up as an outpatient.

[66]

31 In Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 the Court observed that: ' [a] conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314: '…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way.' Being a common law offence there is no statutory maximum penalty. (at 320)"' 40 Some further statements in decisions of the Court of Appeal are also pertinent. In Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644), Mahoney, Priestley and Clarke JJA said at 22: "Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do." 41 In C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported, BC9601681), Mahoney P said at page 1: "It is proper that the seriousness of what the applicant did be properly understood. It is the duty of members of the community to give evidence when properly called before a court to do so. Refusal to do so may have serious consequences in the particular case: an innocent person may be convicted or a guilty one may escape punishment. Equally important, it may be thought in the community that the proper course of justice may be ignored or impeded; public confidence in the due administration of the law may be destroyed."

[70]

The Actual Consequences of the Contempt on the Relevant Trial 50 Despite the stance taken by the Contemnor (and his brother), the trial continued and Adnan Darwiche was convicted on the second count. 51 From the remarks on sentence of Bell J (at [7]), it is apparent that the acquittal of Adnan Darwiche on the first count was unrelated to the refusal of the Contemnor to give evidence. As mentioned earlier, it appears that the conviction on the second count resulted essentially from the evidence of Khaled Taleb and the Contemnor's father, Jamal Razzak, together with formal police, scientific and medical evidence. 52 In these circumstances, the actual consequences of the contempt with respect to the first and second counts was limited. It must be said, however, that the stance of the Contemnor must have reduced the prospect of conviction on the second count. 53 With respect to the other counts on the indictment, the refusal of the Contemnor to give evidence had a greater capacity to actually interfere with the course of justice in the proceedings. 54 The Contemnor's evidence was not confined to the first and second counts, but provided important evidence to explain the relationship between the Darwiche family and the Razzak family which would serve to explain the various attacks, including fatal attacks, upon members of the Razzak family which were charged against the various accused at the trial. 55 The Contemnor was a most important Crown witness and his refusal to be sworn or affirmed left the Crown case, in many significant respects, dependant upon the evidence of Mr Taleb only. As it happened, it is clear that the jury accepted the evidence of Mr Taleb given the verdicts returned. 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. 57 I am satisfied that the actual consequences of the contempt were substantial given the loss to the Crown case of important evidence from the Contemnor.

[81]

(i) A statement of Senior Correctional Officer Anthony Sheean dated 6 November 2006 (Exhibit A, Tab 9) indicated that the Contemnor was present in the Downing Centre cell complex on 13 February 2006 and 14 July 2006 at the same time as Adnan Darwiche and his co-accused were present in the same complex. Steps were taken to keep the Contemnor separate from the Darwiche group. However, whilst the Darwiche group were being escorted to Court, they were heard to yell abuse and insults at the Contemnor in English and Arabic and the Contemnor yelled back abuse and insults in English and Arabic. 62 Mr Price submitted that this body of evidence pointed to a level of violence of an extraordinary and protracted nature directed at persons opposed to Adnan Darwiche and his associates. In submissions, the Crown acknowledged that the trial was marked by incidents of aggression and abuse and the expression of fears by Crown witnesses, some of whom were permitted to give evidence by audio-visual link as a consequence. 63 Although a subjective apprehension of danger is not sufficient to constitute duress, it may be taken into account in mitigation of penalty where a contemnor is guilty of contempt: Wood v Galea (1997) 92 A Crim R 287 at 291; Trad at [15]-[16]; Tran at [16]. 64 Accordingly, if the Contemnor acted as he did by reason of subjective fear, this is capable of operating as a mitigating factor on sentence for contempt of court. This principle is reflected in s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999 which provides, as a mitigating factor on sentence, circumstances where "the offender was acting under duress". Clearly, the word "duress" in this provision relates to partial duress in the sense of subjective fears in accordance with the first leg in R v Abusafiah. 65 There is no evidence from the Contemnor in these sentencing proceedings on this question. The events surrounding his refusal to take the oath or be affirmed on 14 July 2006 indicate the adoption by him of a considered position in an unemotional way. Nevertheless, given the body of evidence referred to earlier at [61], I accept that there was some measure of subjective fear in the Contemnor at the time when he committed his contempt.

[85]

General and Personal Deterrence and Denunciation of the Contempt 74 In sentencing for contempt of court arising out of a witness' refusal to give evidence, it has sometimes been observed that personal deterrence is not a significant factor because it is not thought likely that the contemnor will find himself again in the same circumstances: Trad at [19]. 75 I do not think that this approach is apt to the present case. The events giving rise to the present trial involve a history of conflict between the Darwiche family and the Razzak family extending back to 2001. The Contemnor has been in custody since August 2002. It is true that Adnan Darwiche and his co-accused at the trial (with the exception of Abass Osman) are now serving sentences of life imprisonment. 76 Nevertheless, it appears that shooting attacks on Crown witnesses occurred in April and May 2005 which the police attributed to supporters of the Darwiche family. Only time will tell whether there is ongoing conflict between members of the Darwiche family and the Razzak family after the Contemnor is released from prison. 77 I raise these matters for the purpose of observing that it is not an entirely theoretical possibility that, at some future time, the Contemnor may find himself as a potential Crown witness with respect to some other crime. In these circumstances, I am satisfied that personal deterrence is an important factor on sentence for this offender. The absence of any expression of contrition or remorse is important on this aspect as well. 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 page 26. 79 I have mentioned earlier in this judgment (at [40]-[41]) statements from Gilby and C v Registrar Court of Appeal where strong emphasis was placed upon the duty of citizens to give evidence in criminal trials. In the present case, the Contemnor was a member of a family on one side of a conflict which involved, from the Darwiche side, the infliction of force, including lethal force, against the Contemnor's side of the dispute. A number of witnesses from the Contemnor's family were called by the Crown to give evidence at the trial. The Contemnor and his brother refused to give evidence. The Contemnor's father did give evidence. The father's evidence played a significant part in the conviction of the accused at the trial. 80 There is a body of evidence before me pointing to a pattern of intimidation from, and on behalf of, Adnan Darwiche and his associates directed at witnesses to be called in criminal proceedings against them. 81 The response of the justice system to these circumstances must be to facilitate the giving of evidence by witnesses and to minimise the effects of intimidation. This can be done by various means, including the use of witness protection (for witnesses in the community), protective custody (for witnesses in custody) and the giving of evidence from a remote location by audio-visual link. Other protective measures are no doubt also available to the authorities. 82 In addition to these measures, however, it is important that the courts send a message that refusal by a witness to give evidence in criminal proceedings, through fear or otherwise, will not be treated lightly. 83 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. 84 The lawlessness which may explain violent disputes on the streets between rival groups or gangs must not be transported into the courts so that the lawful authority of the courts is defied by witnesses (from one side of the dispute) refusing to participate in a criminal trial of persons on the other side of the dispute. 85 I acknowledge that the Contemnor was in custody serving a sentence of imprisonment when called to give evidence. Additional pressures may exist with respect to witnesses who are called to give evidence, from custody, in criminal proceedings. That said, there is no evidence before me that, as a result of any fears which he may have had, the Contemnor sought to be placed in protective custody or requested the taking of additional measures to support him whilst he fulfilled his obligation as an important Crown witness in a most serious criminal trial. 86 There is an overlap between considerations of general deterrence and denunciation of the contempt. The vindication of the criminal justice system requires a meaningful sentence to denounce a contempt of this class.

[86]

Determination of Punishment 87 There is no statutory maximum penalty for the common law offence for contempt of court: Attorney General for NSW v Whiley (1993) 31 NSWLR 314 at 320C. Punishment for contempt is referred to in Part 55 r 13(1) SCR, but this rule confirms the Court's power of punishment but does not exhaust it: Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 at 314D. 88 Mr Price emphasised, in submissions, the evidence pointing to a reasonable possibility of subjective fear on the Contemnor's part and other matters including his plea of guilty. He acknowledged that an additional term of imprisonment was appropriate in the circumstances of the case, but submitted that a sentence in the order of one to three months' imprisonment commencing in August 2007 would be appropriate, having regard to the unusual circumstances of the case. Mr Price submitted that the contemnor in Gilby was sentenced to imprisonment for six months for an offence of contempt which, so he submitted, was objectively more serious than the present offence. 89 I have given careful consideration to the submissions made on sentence. Insofar as Mr Price invites comparison between the present case and Gilby, care must be exercised in considering sentences imposed in other matters which do not involve co-offenders: R v Morgan (1993) 70 A Crim R 368 at 371; R v Araya (2005) 155 A Crim R 555 at 566-568 [67]-[72]. I do not consider that sentences for contempt, in other cases, provide a safe guide to the proper tariff or punishment for contempt of court given that the nature of the contempt itself, and its consequences, vary so greatly between the cases: Wood v Galea (1996) 84 A Crim R 274 at 277; Jando at 539-540 [56]; Tran at [38]. 90 Drawing together the conclusions which I have expressed earlier in this judgment, it will be clear that, in my view, this is an objectively serious case of contempt of court. I accept that some level of subjective fear may be expected in the Contemnor. However, there is no evidence that he had taken steps by way of application for protective custody or otherwise to assist him for the purpose of discharging his duty as a witness to be called in a serious criminal trial. He refused to be sworn or affirmed and understood the consequences at the time. 91 It is clear that a range of other witnesses were apprehensive and fearful about giving evidence, but they fulfilled their duty as citizens with the assistance of a range of measures designed to provide them with a level of protection. 92 The Contemnor was not prepared to do so and must face the consequences. 93 I take into account the Contemnor's plea of guilty and the subjective matters advanced on his behalf on sentence. I have regard to considerations of personal and general deterrence and denunciation of the contempt which are critical factors on sentence in this case. 94 I am satisfied that no sentence other than a sentence of full-time imprisonment is appropriate in the circumstances of the case, and that a sentence which adds significantly to the Contemnor's present term is appropriate.

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