R v Diallo & Ors

Supreme Court of NSW|2024-07-02|Before: Hamill J

JUDGMENT

This judgment relates to the conduct of a witness - Emmanual Majak (also known as Emmanual Deng) - who refused to take an affirmation or oath when called to give evidence via audio visual link ("AVL") on the voir dire and then refused to come to the court from the cells when directed to do so during the trial. I will refer to him as Mr Majak, while noting he is generally referred to as Mr Deng in the transcript.
The question is whether Mr Majak should be dealt with summarily for contempt, or whether he should be referred to the Prothonotary for the institution of proceedings for contempt, and whether he should be afforded an opportunity to be heard before a decision is made that either of those things should occur. Similar, but not identical, issues arose with respect to the witness KL who declined to answer a number of questions when directed to do so: see R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 ("Diallo & Ors (No 10)").
The drama surrounding Mr Majak's evidence, or absence of evidence, played out over four separate court days. I will explain the context of what happened and set out the transcript which records what transpired.

Tuesday 2 July 2024

Mr Majak attended, or was taken to, the AVL suite at the gaol where he was accommodated so that he could give evidence on the Basha inquiry by AVL. The AVL was opened and the following is recorded in the transcript (with some minor proofing errors corrected by the writer): "AUDIO VISUAL LINK COMMENCED AT 10.41AM HIS HONOUR: Are you Emmanual? MAJAK: Yep. HIS HONOUR: Thank you. I think you spoke to a lawyer yesterday. First thing, am I looking in your direction now? MAJAK: Yep. HIS HONOUR: I think you spoke to a lawyer yesterday, who gave you some advice? MAJAK: Yeah, I told him just charge me, you know what I mean? Charge me with contempt. I'm not going to help you with anything. HIS HONOUR: Yes, that's all right. At the moment, I just need to make sure you're aware of your rights. MAJAK: Yeah, I'm aware of everything, you know. Just, just charge me and that's it, you know. I don't want to go and do anything else, yeah. HIS HONOUR: Having heard from Mr Fung, I'm prepared to accept that you are aware of your rights. CROWN PROSECUTOR: Perhaps I can start and then we'll see how we go, and it may flush out, really, whether your Honour needs to give the advice or not. Would that be satisfactory? HIS HONOUR: Yes, of course. MAJAK: Now, am I allowed to leave, am I allowed to leave now? HIS HONOUR: I can't hear you. MAJAK: Can I leave now? HIS HONOUR: No. What I'm going to do is have the officer administer an oath or an affirmation, and then someone will ask you questions and then we'll see how that plays out. MAJAK: Yep. CROWN PROSECUTOR: No, sir, just wait there, please. Take a seat. Just take a seat, please, sir. MAJAK: No, I don't want to answer any questions, brother. Straight out. I'm not, I'm not answering any questions. HIS HONOUR: Can I ask you again if you understand the law of contempt that was explained to you? MAJAK: Yeah, I - yeah, I understand everything. HIS HONOUR: All right, thank you. I'll call on Mr Fung, I think. MAJAK: I'm going to leave. HIS HONOUR: I think the record should reflect that the witness, when it was attempted for him to take an oath or an affirmation, indicated he wouldn't answer any questions - that should be on the record - and then stood up and walked out of the AVL suite. CROWN PROSECUTOR: Yes. HIS HONOUR: He's now no longer with us, so we can cut that link. AUDIO VISUAL LINK CONCLUDED AT 10.44AM." [3]
To complement the observations made in the above passage of transcript, Mr Majak walked out of the AVL suite almost immediately upon being told that the court officer was about to administer an affirmation or oath.

Monday 19 August 2024

On Wednesday 31 July 2024 a jury was empanelled in the trial of four of the accused men. It was intended to call Mr Majak on Monday 19 August 2024. He was brought to Court that day and was in the cells in the basement of the Parramatta Trial Court complex. Counsel reminded me of the difficulties that were encountered when Mr Majak was called on the pre-trial hearing: "CROWN PROSECUTOR: No. Perhaps we could have Mr Deng arrive, go through the s 128 procedure. He would have to remain. The jury return and then they would be advised that we've reached a point of time where it's expeditious to finish him. I have no difficulty with your Honour advising that Mr Okot is simply not here. HIS HONOUR: Did we hear from Mr Deng on the Basha Inquiry? CROWN PROSECUTOR: We did, yes. HIS HONOUR: I'll just have a look at what he said. CROWN PROSECUTOR: He was in custody and he, if I remember rightly, just simply walked out on us. ROBINSON: That's right, your Honour. AVENELL: He refused to be sworn. CROWN PROSECUTOR: He was on AVL. I'm also reminded that on the last occasion he refused to be brought up. HIS HONOUR: We'll see what happens. Corrective Services, if there's issues getting this witness up, can somebody let me know? Maybe come up and see me to discuss what action we take. When I say 'we' I mean you." [4]
There was a short adjournment to have Mr Majak brought to Court. However, in accordance with my request if predictable difficulties ensued, Corrective Services staff approached me in chambers to indicate that Mr Majak would not co-operate and go to the courtroom. This was recorded in the transcript when the trial resumed in the absence of the jury: "HIS HONOUR: Are we able to get the roving microphone over to the corrective services officer, Mr Steinfelder? Thank you. Good morning, can you just identify yourself and your rank? STEINFELDER: I'm a first-class correctional officer, Thomas Steinfelder, I'm acting up as the SCO at the moment, senior correctional officer. HIS HONOUR: Thank you very much. And have you responsibility for the bringing of Mr Deng or Mr Majak-- STEINFELDER: Yes, that's correct, your Honour. HIS HONOUR: --to Court? STEINFELDER: That's correct, your Honour. HIS HONOUR: When he was required to come to Court this morning, did he refuse? STEINFELDER: Yes, he refused, and he also said to me that he refuses also to give evidence in Court. HIS HONOUR: Yes. And as a result of that, did you and I have a meeting upstairs in my chambers-- STEINFELDER: Yes, that's correct, your Honour. HIS HONOUR: --along with Officer Dewan? STEINFELDER: Yes, that's correct. HIS HONOUR: Did I ask you to pass on a direction to him to come to Court and to give evidence? STEINFELDER: Yes, that's correct, your Honour. HIS HONOUR: Did you do that? STEINFELDER: Yes. HIS HONOUR: Did he continue to refuse to come to Court? STEINFELDER: Yes, he did. HIS HONOUR: Do you have concerns that in forcing him to Court, there's a possibility that either he or one of your officers may be injured in the process of doing that? STEINFELDER: That's always a concern, your Honour. HIS HONOUR: Thanks very much, Mr Steinfelder. I just need to get that onto the record. STEINFELDER: Thank you. HIS HONOUR: In the circumstances, I'm not going to require the corrective services officers to put themselves at physical risk of harm." [5]
My associate, and (I think) the solicitors instructing the Prosecutor, contacted the solicitor who appeared for Mr Majak during the Basha inquiry (Mr Fung) as well as another lawyer (Mr Newham) who appears for Mr Majak in unrelated proceedings. Mr Fung attended Court later that day: "HIS HONOUR: …Now, before we get the jury back, Mr Fung is here. Have I remembered your name? It's Fung, is it? FUNG: Yes, your Honour. HIS HONOUR: I do beg your pardon. It's been a few weeks. We've had a bit of blood under the bridge, shall I say, since then. You're here to assist or advise one of our witnesses. FUNG: Mr Deng, your Honour. HIS HONOUR: Mr Deng, yes. He has declined to come to court. He has been reminded of the law of contempt, I think on the last occasion, he said it was his preference to take the contempt charge over the oath or affirmation. I've contacted the Prothonotary with a view to at least the possibility of instituting such charges. I believe he's still downstairs. Is anyone in Corrective Services able to confirm that? So, I was simply at this stage wanting to give him some form of procedural fairness and invite you to at least tell him I'm serious, and that this won't be the end of the matter. I'll then be seeking submissions as to why such proceedings ought not to be instituted before I refer it formally. I'm not sure if you're able to do that today. FUNG: I'm happy to do it. HIS HONOUR: He's in the cells, and if it's possible, we're going to be sending the jury out again at around three. We have a bit of legal argument, but as soon as you're here and the jury is not here, I'll bring you up so as not to inconvenience you more than I have already. FUNG: I'm available this afternoon. Thank you, your Honour. HIS HONOUR: The Court is very grateful to you. Thanks, Mr Fung. Shall we have the jury?" [6]
Mr Fung provided a further update towards the end of the day: "HIS HONOUR: I see Mr Fung. I might deal with him first so he can get away. Mr Fung, I don't want to ask you too many direct questions, because I don't want to make you a witness in the case, but have you provided the witness with some further advice? FUNG: Yes, your Honour. HIS HONOUR: I probably shouldn't really ask you much else. Is there anything else you wanted to share with the Court? FUNG: No, your Honour. HIS HONOUR: All right. FUNG: I should really note. If your Honour were to call him up, my instruction is, he will refuse to come up. HIS HONOUR: All right. Thank you. That saves me some time and effort. FUNG: Thank you." [7]

Thursday 22 August 2024

On Thursday 22 August 2024, Mr Majak was brought back to the cells in the basement of the Parramatta Trial Court complex. He again refused to be brought to the courtroom. His position was communicated to the Court by way of an email from the court officer: "HIS HONOUR: …There is news, we have word from the cells via the Court Officer that Mr Majak or Deng has maintained his position in relation to coming into the Courtroom. I don't know if there's any - I'll let you think about that. He can remain there until you're ready to make a decision. What I haven't done today is to communicate with him anything about contempt or ask the corrective services to let me know if they could get him here without injury. But I'll wait to hear what you want me to do in relation to him. CROWN PROSECUTOR: I think we're reaching the inevitable, your Honour. HIS HONOUR: I appreciate that, but we did bring him here just to see if anything had changed. I doubt he's received any further advice, and he seemed to be well aware of the alternatives. I'll just leave it at that at this stage. Just noting, he is in attendance at the Court complex, he has indicated to corrective services, in the terms of the email, 'Mr Majak is refusing to come up to Court when called'." [8]

Refusing to take an oath or affirmation is generally considered to constitute contempt in the face of the court

It is well established that the refusal by a witness to take the oath constitutes a contempt in the face of the Court: see, for example, Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 and R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132.
Mr Majak plainly refused to take the oath or affirmation on 2 July 2024 when he appeared via AVL. The import of the interaction he had with me and with the Prosecutor was that he would take the contempt charge in preference to an affirmation or an oath.
He constructively declined to take the oath on 1 July 2024, 19 August 2024 and on 22 August 2024 by refusing to come to the courtroom in the absence of the application of physical force. Whether that - "constructive refusal to take the oath or affirmation" - is the correct categorisation of his conduct is not to the point. It was conduct of a similar kind and may well constitute a criminal contempt of court warranting punishment.
However it is categorised, Mr Majak refused to comply with the clear directions and orders of the Court.

Referral, rather than summary disposition, is the preferable course

I discussed the alternative procedures available to institute or prosecute proceedings for contempt in Diallo & Ors (No 10) at [19]-[22]. A question arises whether I should exercise the Court's power to deal with the contempt in a summary fashion or whether there should be a referral to the Registrar (Prothonotary).
As in the case of the witness KL, the preferable course is to refer the matter to the Prothonotary. That is a better approach, at least in terms of what might be described these days as "the optics". It is generally not desirable for the trial Judge to assume the multiple roles of being the victim, witness, jury and executioner. [9] The Prosecutor, who sought to adduce Mr Majak's evidence, did not invite me to engage in the summary procedure whereby Mr Majak would be charged, convicted, and sentenced during the course of the trial.
There was also the practical consideration that, because Mr Majak deliberately absented himself from the courtroom, charging him formally would likely prove to be difficult unless the court "reconvened" in the cells as Wilson J did; In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 at [75].

Should Mr Majak have the opportunity to be heard before the matter is referred to the Prothonotary?

In R v Diallo & Ors (No 10), I decided it was appropriate to give the witness KL an opportunity to be heard as to why the matter should not be referred to the Prothonotary. That is a procedure that is often followed to ensure the alleged or putative contemnor is afforded procedural fairness.
However, in Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 ("Dangerfield"), the Court of Appeal considered that while the requirements of procedural fairness may require such a procedure in matters dealt with by the Local Court (and presumably other inferior or statutory courts), the same requirements may not apply to a superior court such as this one, particularly in light of the requirements of Pt 55 of the Supreme Court Rules.
This is not to suggest that the requirements of procedural fairness do not remain important. However, the content of the requirements may vary depending on the circumstances of the case, the particular stage the process has reached, and the jurisdiction of the court or tribunal contemplating the institution of contempt proceedings.
In Dangerfield, while enumerating and explaining the reasons that the requirements of procedural fairness applied to the Local Court proceedings under consideration, and rejecting a number of submissions made by the Prothonotary, Gleeson JA, with whom Beazley P (as her Excellency then was) and Payne JA agreed, said: "60. Sixthly, Killen v Lane is distinguishable from Maniam (No 1) and the present case for two reasons. One is that the nature of the power exercised by the Supreme Court in Killen v Lane - to commence proceedings for contempt under SCR Pt 55 r 11(1) - is clearly different to the power of an inferior court to refer a matter to the Supreme Court for determination. The other is that SCR Pt 55 provided the means by which procedural fairness is to be afforded to the contemnor. In particular, SCR Pt 55 Division 2 requires: a statement of charge specifying the contempt of which the contemnor is alleged to [be] guilty shall be subscribed to or filed with the notice of motion or summons (Pt 55 r 7); unless the Court otherwise orders, the evidence in support of the charge shall be by affidavit (Pt 55 r 8); that the notice of motion or summons, the statement of charge and the affidavits should be served personally on the alleged contemnor (Pt 55 r 9); and the alleged contemnor is to be brought before the Court and informed orally of the contempt with which he or she is charged, be required to make his or her defence to the charge, and after hearing him or her the Court determine the matter of the charge and make an order for the punishment or discharge of the contemnor (Pt 55 r 3). 61. At the point at which the Supreme Court exercises the power under SCR Pt 55 r 11(1) to commence or direct the commencement of proceedings for contempt, the express requirements in Div 2 of SCR Pt 55 for the giving of notice of the statement of charge, particulars and supporting affidavits, together with the requirement for a hearing, exclude the implication of common law principles."
Payne JA made additional observations at [97]-[98] in relation to the significance of a party having legal representation and advice. His Honour also stressed that Ms Dangerfield ought to have been aware of the alternative options of determining the matter; either under the Local Court statutory power to proceed summarily or by referral to the Supreme Court.
Taking into account the circumstances prevailing in the present case, I can see no utility in giving Mr Majak an opportunity to be heard on the issue of referral at this stage. He made it clear, from the outset, that his preference was to take the contempt charge over an affirmation or an oath. His conduct was unambiguous, calculated and sustained. I am inclined to defer to his preference sooner rather than later.
It was clear from the outset, and the record reflects, that Mr Majak had legal advice and was represented before he appeared by AVL. With the benefit of that advice, he elected to conduct himself as he did.
There is nothing to be gained by wasting the limited resources of the Legal Aid Commission, or putting Mr Majak to the expense of obtaining legal representation at this stage. Equally, there is little point in requiring the prison authorities to bring Mr Majak to Court yet again when, based on his previous conduct, he will refuse to be brought to the courtroom.
My decision not to proceed summarily will not be altered by anything Mr Majak could contribute and is ostensibly to his advantage in the circumstances.
This judgment sets out the nature of the charge or charges to be preferred against him and the particulars of the conduct said to constitute that charge or those charges. My associate will forward this judgment to each of the solicitors who have acted for Mr Majak in more recent times. I will direct the Registrar to forward a copy to Mr Majak himself.
In the not too distant future, Mr Majak will be advised of the precise form of the charge or charges instituted by the Prothonotary and will have every opportunity to take legal advice, to consider his position, and to respond to that charge or to those charges.
If Mr Majak has some arguable defence to any charge that is formulated, or even a fanciful one, he will have the opportunity to present it. He may also have matters to put in mitigation, but given his opening gambit was to invite me to charge him with contempt, it seems very unlikely that he would have anything sensible to put against the matter being referred to the Prothonotary.
On the face of the record and on my observations of the events as they unfolded, the proposition that Mr Majak acted in contempt of the Court seems impossible to resist.
Accordingly, I propose to refer the matter to the Prothonotary immediately.
In formulating the orders, I have taken into account Pt 55, r 1 of the Supreme Court Rules which defines "contemnor" to include an alleged contemnor. I have also applied and adapted the somewhat awkward language of Pt 55, r 11(1) concerning the requirement that it must "appear to the Court on its own view" that a contempt was committed.

Orders and directions

I make the following orders: 1. It appears to the Court, based on my own view as the trial Judge, that on 1 and 2 July 2024, and 19 and 22 August 2024, Emmanual Majak ("the contemnor"), having been a competent and compellable witness in the trial of R v Diallo & Ors in the Supreme Court, refused to take an oath or affirmation and otherwise failed to comply with the directions of the Court and that he did thereby commit contempt of the Court. 2. Pursuant to Pt 55, r 11(1) of the Supreme Court Rules 1970 (NSW), I direct the Prothonotary to commence proceedings for contempt of Court against the contemnor. 3. The charge or charges may be framed and particularised as the Prothonotary may be advised by the Crown Solicitor and/or the Crown Advocate as briefed by the Crown Solicitor. 4. My associate will provide a copy of this judgment to the two solicitors who have acted for Mr Majak in recent times. 5. The Registrar is to provide a copy of this judgment to Mr Majak.

Endnotes

R v Basha (1989) 39 A Crim R 337.
Tcpt (1/7/24) pp 27-29.
Tcpt (2/7/24) pp 69-70.
Tcpt (19/8/24) p 994.
Tcpt (19/8/24) pp 994-995
Tcpt (19/8/24) pp 1046-1047.
Tcpt (19/8/24) pp 1069-1070.
Tcpt (22/8/24) p 1182.
See the cases referred to in R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2024

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