R v Diallo & Ors

Supreme Court of NSW|2024-09-19|Before: Hamill J, Natalie Adams J

JUDGMENT

On 18 September 2024 I published a judgment in which I expressed the opinion that the witness KL committed contempt in the face of the court by refusing to answer questions in a murder trial: R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 ("Diallo & Ors (No 10)"). The circumstances, and relevant parts of the transcript of the pre-trial hearing on 8 July 2024 and the trial on 19 August 2024, are set out in Diallo & Ors (No 10) at [9]-[13].
My inclination, stated in the judgment, was to refer the papers to the Prothonotary (Registrar) pursuant to the procedures in Pt 55, Div 3 of the Supreme Court Rules 1970 (NSW). However, before taking that step, I allowed KL the opportunity to be heard.
On 19 September 2024, KL appeared by audio video link and was represented by counsel (Ms Fernando) who appeared in person and made submissions on KL's behalf. Ms Fernando made two fundamental submissions. The first was that the matter should not be prosecuted at all; that is, the alleged contempt should not be dealt with summarily (under Pt 55, Div 2) or referred to the Prothonotary (under Div 3). The second submission was that, if I did not accept the first submission, I should deal with the matter summarily under Div 2.

Conclusion as to submissions against any action on possible contempt

Despite the persuasive submissions made on his behalf, the factors relied on by KL are largely matters relevant to mitigation of penalty. Insofar as they impact on the decision to prosecute, be it described as discretionary or otherwise, those factors are outweighed by the public interest in witnesses, even young ones, giving evidence in trials of serious offences. That public interest is not advanced if the Court allows a compellable witness to disobey clear and repeated directions to answer questions without consequence.
For those reasons, proceedings for contempt will be instituted by one or other of the procedures set out in Pt 55, Divs 2 and 3 of the Supreme Court Rules.

Submissions urging the Court to deal with the matter summarily, rather than by way of referral

In the alternative and against the possibility that her first submission was not accepted, Ms Fernando submitted that the matter should be dealt with summarily. She acknowledged this was an unusual submission. However, reliance was placed on KL's "unique situation" including the intersection of these proceedings with KL's possible plea traversal in his own murder proceedings, as well as the fact that I have some knowledge of those matters having made various "protective" orders in relation to the witness. These included providing him with a broadly cast certificate to protect KL against self-incrimination and declining to require him to produce expert reports when those documents were called upon by the Prosecutor: see R v Diallo & Ors (No 7) [2024] NSWSC 978 and R v Diallo & Ors (No 10) at [9]-[10].
Ms Fernando put her submission in a balanced and sensible way: "I had otherwise come to making some submissions about whether or not it ought to be referred or remain before your Honour to be dealt with summarily, and frankly it's quite a difficult decision with many competing features. What has led me to make the submission that it ought to stay before your Honour and be dealt with summarily is the nature of this witness' other matter and its connection with these proceedings and the fact that this Court has made a number of orders protecting this witness, having heard submissions by me about how these proceedings have the potential to impact that other case, and it's really that unique situation that leads me to make the submission that the matter ought not to be referred to the prothonotary for it to then end up joining the other matter and if the witness is to be sentenced both on contempt charges and those unrelated proceedings, it can all be dealt with in one sentencing exercise, however because of that connectedness and the orders that have been made in these proceedings, that would not be the best outcome and for that reason I ask that it not be referred and be dealt with summarily." [4]
The Prosecutor (in the trial proceedings) sought to be heard and joined Ms Fernando in submitting that the matter ought to be dealt with summarily. He submitted the referral process will cause significant delays and reduce the specific deterrence effect of any sentencing: "Generally sending the matter to the prothonotary who will then of course need to engage the Crown Advocate will in my experience cause a delay of some considerable period of time. That's almost inevitable, and it's quite likely that [KL] will not be dealt with for any possible contempt until well into next year… The effect of some sentencing for contempt might be greater increased not generally but specifically if it occurs between now and 4 November. The only way to achieve that is if your Honour deals with it." [5]
The reference to "4 November" is a reference to the trial date of the separated trial of YA. The thrust of the submission is that dealing with the contempt matter expeditiously may encourage KL to be more co-operative if (or when) he is called to give evidence before the jury in YA's trial. The Prosecutor said, "the law can only operate through various levers and mechanisms and this is one of them for recalcitrant witnesses."

Conclusion on summary disposition

While policy considerations generally tend to favour the referral process rather than the summary procedure, I am persuaded that the joint position of the parties should be accepted. There are two primary reasons for this.
First, with the benefit of the advice of experienced counsel, the person in jeopardy (KL) has renounced any concerns of my acting as the witness, victim, [6] arbiter and sentencer.
Secondly, the proximity of YA's trial, and the likelihood that KL will be called as a witness, makes it desirable that the contempt proceedings be dealt with expeditiously.
I was concerned that it may be necessary to order a background report assuming any summary disposition of the contempt proceedings reached the penalty stage. However, the relevant legislation excludes the requirement for such a report from proceedings relating to contempt. Section 25 of the Children (Criminal Proceedings) Act 1987 (NSW) applies to a person under 18: "who has pleaded guilty to an offence (other than contempt of court) in, or has been found guilty or convicted of an offence (other than contempt of court) by, a court." [My emphasis].
The relevance of other parts of the Children (Criminal Proceedings) Act may need to be considered further in light of the decision in Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [33]-[58] and the "applicability" provision in s 4 of that Act. However, the exception to the requirement for a background report, highlighted by my emphasis in the extract of s 25 in the last paragraph, means that the delays inherent in the provision of such reports will not - at least of itself - result in any delay in disposing of the contempt proceedings against KL.
Having heard the submissions of KL and contrary to my earlier inclination to exercise the referral power, I propose to deal summarily with KL's (alleged) contempt in accordance with Pt 55, rr 1-4 of the Supreme Court Rules.

Proceedings for contempt - framing of charges and timetable

I accept Ms Fernando's submission that, rather than charging multiple counts of contempt by reference to each occasion KL declined to answer a question after being directed to do so, the facts can be encompassed by the framing of two charges, one to cover each date upon which KL refused to answer questions.
Accordingly, pursuant to Pt 55, r 3, KL will be brought to court and informed orally of two charges of contempt in the following terms: 1. On 8 July 2024, while giving evidence on a pre-trial hearing in the murder trial known as Rex v Diallo, Karise, AD, AG and YA in the Supreme Court sitting at Parramatta, committed a criminal contempt in the face of the court by refusing to answer questions when directed to do so. 2. On 19 August 2024, while giving evidence in the murder trial known as Rex v Diallo, Karise, AD and AG in the Supreme Court sitting at Parramatta, committed a criminal contempt in the face of the court by refusing to answer questions when directed to do so.
The date upon which that will occur will be determined by reference to YA's trial date (4 November 2024) and Ms Fernando's availability. On that date, KL will be required "to make his defence" to the charges of contempt, and after hearing from him or his counsel, the court will "determine the matter of the charges". If a charge or both charges are established, the court will move immediately to determine the appropriate punishment.
Once the matter is listed for the above purpose, further case management orders will be made if necessary.

Orders

At this stage, I make the following orders: 1. Two charges of contempt, as identified in [22] and particularised in R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085, to be disposed of summarily pursuant to Pt 55, Div 2 of the Supreme Court Rules 1970 (NSW). 2. Expedite the disposition of the matter. 3. My associate to liaise with KL's counsel and solicitors to determine a suitable date for an expedited hearing. 4. Within seven days (that is by 5:00pm on Monday 7 October 2024), KL's legal representatives to advise my associate of the plea KL proposes to enter when informed formally of the charges.

Endnotes

Tcpt (19/9/24) p 2.
Tcpt (19/9/24) p 4.
Tcpt (19/9/24) p 2.
Tcpt (19/9/24) p 7.
Tcpt (19/9/24) p 8.
Of course, the judge is not the actual victim of KL's alleged contempt; "rather, it is the administration of justice (as represented by the judge) that is the victim of a contempt": Justice Natalie Adams and Belinda Baker, 'Sentencing for Contempt of Court' (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020), footnote 4. 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: 08 November 2024

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