R v Garland [1997] QSC 145

There was some suggestion made by Mr Cuthbert for Kranz that Garland may have become disabled by reason of a medical condition which manifested itself earlier this year and which would affect his recollection of events which occurred in September 1994. There was no admissible evidence to support this contention. In light of Garland's answers that he could not recall the events of 28 September 1994 Mr Cuthbert did not seek to maintain his objection to the reception of Garland's evidence at trial on the ground of his partiality.

The prosecutor opened the Crown case to the jury on 5 June including Garland's expected evidence consistent with his statement and evidence at the committal proceedings. There can be no doubt that Garland was the key witness in the case against the four accused. He was a resident in the unit at Sir David Longland Correction Centre which housed them and the deceased Smith. At the estimated time of death the guard had gone on a meal break and there was no supervision in the unit. Garland was the only inmate of the unit who was able to assist the investigators of the murder. One other inmate in an adjacent unit was opened by the Crown who would give some limited eye witness evidence implicating the accused.

Garland was called as the Crown's first witness. When he reached the witness box and was offered the Bible the following exchange occurred:

HER HONOUR: Mr Garland, do you not propose to give any evidence in this case? - - No." (t/s 110)

In the absence of the jury it was established that Garland did not at any time in the proceedings intend to take an oath or affirmation. The following exchange then took place:

"HER HONOUR: Mr Garland, you have had served upon you a subpoena to attend at Court in these proceedings and to give evidence in respect of the matters concerning this trial. You have seen that document? - - Yes.

By refusing to participate and give any evidence at all, which is signified by your refusal to take the oath or the affirmation as is appropriate, then that constitutes prima facie a contempt of court. Do you wish to seek some legal advice as to what steps you might wish to take further in respect of this matter? - - No.

You would understand that there is a power in the Court where a person commits contempt in the face of the Court to commit that person to a term of imprisonment? Do you understand that? - - I understand.

Do you wish an opportunity to seek legal advice? - - No, thank you."

The court adjourned to permit the prosecutor to consider his position and after lunch the indictment was returned and a nolle prosequi was entered. The jury returned and the four accused were discharged in respect of that indictment.

By then Garland had obtained the services of a solicitor and counsel had been briefed to represent him on the contempt hearing which, since the trial was not to proceed, I proposed to deal with then. An adjournment was granted to enable proper instructions to be obtained. The hearing resumed on 13 June 1997 and concluded finally on 14 August 1997.

Mr Rutledge, who was not the prosecutor, appeared for the Crown on these proceedings. Mr Davis for Garland tendered particulars of alleged duress which were advanced as exculpating him entirely or as going to punishment. They were:

(i) The prisoners Hills, Kranz, Fyfe and Abell are violent criminals; the respondent Garland has witnessed an incident where these 4 have committed a very violent murder;

(ii) The murder victim was another inmate in prison;

(iii) Hills, Kranz, Fyfe and Abell are (in the main) long term prisoners;

(iv) If convicted for murder Hills, Kranz, Fyfe and Abell would be inmates for at least 13 years;

(v) The respondent gave a statement to police on the 29 September 1994 (the day of the murder)[in fact the day following the murder]. At that stage he had only a short time of his sentence to serve;

(vi) The respondent was granted parole but was re-arrested in early 1997;

(vii) The new charges against the respondent are very serious. Given the criminal history and the nature of the charges he is likely to receive a very lengthy sentence (if not life) if convicted;

(viii) The facilities for the protection of prisoners who are "informers" is limited. It is likely that the respondent would, if regarded by prisoners in the jail system as an informer have to be housed in the detention unit which is a punishment unit.

(i) Greg Howden, the general manager of the Arthur Gorrie Correctional Centre told Garland on two occasions that he (Howden) believed Garland's life was in danger;

(ii) A prisoner (unidentified) came to the back window of the detention unit (before the murder trial commenced) and held up a piece of paper with Garland's brother's address on it. This was regarded as a threat."

Garland, who is aged in his 30's, gave evidence on oath on this hearing that in 1994 he was an inmate at Sir David Longland Correctional Centre and had served approximately 10 years of a 12 year sentence. This would seem to be incorrect given his release on home detention in late 1996 (Garland's criminal history was not before the court). But in any event, it is accepted that he had spent most of a long sentence in prison. He had applied unsuccessfully for parole on numerous occasions and in September 1994 had a further application before the Board. He acknowledged the truthfulness of his statement implicating Hills, Kranz, Abell and Fyfe in the murder of Smith and said that although concerned that he might be killed when he gave it he anticipated that he would be out of the prison in a reasonably short period of time and would thus be beyond the reach of any retaliatory conduct. After giving his statement he was placed in the detention unit at Sir David Longland for his own protection for 3 or 4 months and then moved to different centres and housed in detention units. In late 1996 he was released on home detention and resided with his brother and Father Richard Pascoe at his residence at Wooloowin. After 3 or 4 months Garland was released on parole.

He has since then been charged with a great many serious offences allegedly committed in Brisbane and Mackay in late March/early April 1997 which include attempted murders, rapes, assaults and firearms offences involving many victims. No committals have been held. If convicted of those charges or some of them he realises that he faces a very long period of imprisonment. He was returned to custody and, for the most part, has been housed in the detention unit at the Arthur Gorrie Correctional Centre. The detention unit is punishment detention and it would seem that although Garland was accommodated in that unit for his own protection the punishment aspect of the regime was not ameliorated. It involves isolation, limited visits, no participation in any prison programmes or sports, handcuffing behind the back when outside that unit and the escort of two or more correctional officers. When used as a punishment prisoners are liable to no more than 7 days' confinement in the detention unit in respect of any one breach of discipline.

The general manager of the Arthur Gorrie Correctional Centre mentioned to Garland on several occasions that there had been threats made against Garland's life by inmates and that he would receive something, possibly poison, disguised as heroin to carry out the threat. He indicated to Garland that whilst he was in that prison he would remain in the detention unit. This is not disputed. On another occasion some one or two weeks prior to the trial an inmate unknown to Garland came to the window at the detention unit and said that if Garland testified he would be killed. He held up a piece of paper and asked Garland who lived at the address shown on the paper. It was the address of his brother and Father Pascoe. He took this to be a threat to injure either or both of them.

Garland said that he refused to take the oath at the trial because he feared for his own life and that of his family. His understanding was that two of the accused, Abell and Hills, were undergoing long sentences and was unsure of the other two. He said that they had influence with a lot of prisoners and were "very close-knit with the prisoners who actually killed Bart Vosmaer and, well, I know that they have got reputations for being violent" (t/s 22). There was proposed evidence at the trial which would lead to the inference that Smith's murder was retaliatory. In all Garland said that he had received 4 or 5 threats to his life since he returned to the Arthur Gorrie Correctional Centre on 24 April 1997.

Garland conceded that because he had co-operated with the investigators to the extent of giving a statement and had given evidence consistent with that statement at the committal hearing he was at risk. However he maintained that the situation had changed in that he now would expect to be in prison for a long period if convicted and would have to serve his sentence in the detention unit for as long as 10 or 15 years if he were to have protection. His greatest time of exposure was when walking to medical treatment through the prison. He thought it was unlikely that the officers would put their lives "on the line" for his. He added:

"You want me to come in here and testify against these blokes, you got to be kidding. I wouldn't testify against those blokes under those conditions if you paid me. There is nothing you could offer me. . .

I have got to duck and weave every prisoner that comes in the way. The length of time in prison is a problem, but I mean the main problem is that, you know, you testify against blokes in prison, you get what is coming to you." (t/s 28)

Garland discussed with Ms Nesrin Akman a prison visitor just before he was due to give evidence in the trial his concerns about his own safety. She recalled that he said "he was walking a dead man (sic) ..." (t/s 7, 14 August 1997). After the trial had been abandoned Ms Akman again visited him and he told her that he had no qualms about giving evidence provided his safety was taken into account.

There was a concern on the part of the Crown that Garland had been strongly influenced by Father Pascoe not to give evidence at the trial unless he were granted parole. Conversations were alleged to have taken place between Father Pascoe, Garland and Richard Pointing, a Crown prosecutor, in early September 1996 prior to the committal proceedings to this effect. Father Pascoe was called to give evidence in these contempt proceedings but when asked whether he had spoken to Garland about giving evidence in the Supreme Court in the murder trial he claimed privilege on the ground that:

"... there is the possibility that some of the things I say may be construed as being incriminating on myself." (t/s 4 on 14 August 1997)

Father Pascoe had received legal advice and it was understood that this was a reference to a possible charge of perverting the course of justice.

Apart from some minor matters there was little in dispute between the Crown and Mr Davis about the facts. What was in dispute was the approach that the court should take.

I should mention that throughout Mr Garland conducted himself politely and respectfully.

The power of the Supreme Court to punish for contempt derives from the jurisdiction of the English superior courts to do so, Supreme Court Act 1995 s.200; AMIEV v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98; Harris v Muirhead decision of Thomas J. of 17 June 1993 (Butterworths Cases 9303043). The nature of criminal contempt was identified by Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at p.449

"... although criminal contempts of court [may] take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who was attempting to administer it."

See also Attorney-General v BBC [1981] AC 303 per Salmon LJ. at p.344.

The procedure for a contempt committed in the face of the court is set out in Order 84 rule 1 of the Rules of Court. It is summary in nature and without formal proceedings. That being so it is essential that the offender understand the nature of the conduct which is said to constitute the offence, be given an opportunity to be heard and, if necessary, to obtain legal advice, Balogh v Crown Court at St. Albans [1974] 3 All ER 283; Re K [1983] 78 Cr App Rep 82.

A witness who is competent and compellable, who attends court in answer to a subpoena and refuses to take the oath or to affirm or who refuses to answer a proper question relevant to the proceedings is guilty of contempt of court, Hennegall v Evance [1806] EngR 118; (1806) 12 Ves. 201; 33 ER 77; Smith v The Queen [1991] 25 NSWLR 1 per Kirby P (as his Honour then was) at p.8.

The Court of Appeal in Re K (1983) Crim App Rep 82 at p.86 held that duress can be a defence to an allegation of contempt. By s.31(1)(d) of the Criminal Code (as it was in force at the time of the refusal to be sworn) a person is not criminally responsible for an act if done in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats and believing himself otherwise unable to escape the carrying of the threats into execution. The recent amendments to s.31 remove the requirement that the threatener be actually present and extend the excuse to threats to others. This has moved the provisions of the Code closer to the common law, as to which see a detailed discussion in R. v Howe [1986] UKHL 4; [1987] 1 AC 417. The threats conveyed to Garland fall far short of the requirements of s.31. Mr Davis conceded that he had some difficulty in pressing the defence of duress but submitted that the undisputed facts would either obviate the need to punish Garland or would dictate a light punishment. There are few reported instances of contempt proceedings for refusal to be sworn in criminal cases involving threats to the potential witness. The case of Re K has some features similar to the present. The appellant was serving a prison sentence with one Noel, a man whom the Court of Appeal described as having a "formidable criminal record". A trivial encounter occurred between the two men and subsequently Noel slashed the appellant's face with a knife and he was very badly wounded. He made a detailed statement to the police and indicated that he was willing to give evidence. Several months before the trial the appellant told prison officials that he had changed his mind about giving evidence. Before the Court of Appeal he indicated that this was because of threats of injury made by Noel and others on his behalf against himself and members of his family. The appellant was called to give evidence in Noel's trial and declined to be sworn. The trial judge, as the Court of Appeal found, acted hastily in committing him to prison for contempt. Because the lower court had failed to give him an opportunity to be heard or to receive legal advice the Court of Appeal quashed the conviction but made observations as to the availability of the defence of duress in the circumstances of the case.

Other cases of prisoners declining to be sworn or to give evidence concern co-accused who refuse to give evidence against the other party usually in the circumstance of a separate or a re-trial and on the grounds of self-incrimination. They are of no particular assistance here.

Garland was placed in an unenviable position. On 29 September he made what might be described in the context of a prison environment, as a courageous decision to tell what he knew of the unlawful killing of Smith which implicated the four accused. He had an understanding of their reputations and their associates. He then knew that he was reaching the end of a long term of imprisonment even if he did not get parole. His resolution remained firm and he gave evidence at the committal despite threats against his life. He changed his mind when faced with the prospect of a lengthy prison sentence should he be found guilty of the offences with which he is presently charged. The factors which operated upon him were fears for his own safety and for those close to him and a reluctance to spend a very long period in the detention unit of various correctional centres with its likely adverse effect on his physical and mental health which would be essential if he were not to be exposed to an unacceptable risk.

Confining men convicted of offences of violence together will inevitably give rise to risks of and actual violence in prisons and alliances will be formed and enmities made which will make it the more likely. The deceased Smith had been placed in this unit, according to the Crown case, against his expressions of fear of some of its occupants. The unit was left unguarded for a period during the day he was first placed in it. His murder was particularly brutal. The community must be deeply disturbed that a man within the confines of a Queensland prison could be murdered as Smith was and that it may go unanswered for fear of reprisal. It may be supposed that inmates other than Garland had something to tell (Garland, if he is to be believed, heard a number of loud piercing screams coming from Smith's cell at the relevant time) but for their own safety have not come forward.

The refusal to take the oath and to give evidence in the circumstances of this case constitutes a grave undermining of the administration of criminal justice in Queensland. Garland's importance to the trial is not in question. Of much less significance is the cost in monetary terms to the State in abandoning the trial in its third day with all the special logistical arrangements which had been made. The refusal to be sworn had further significance in that Garland's statement and evidence at committal could not be sought by the prosecution to be placed before the jury even had he refused to answer questions since he was not a witness.

I am satisfied that Raymond Henry Garland committed contempt of court when he refused to be sworn to give evidence in the trial.

There is no maximum penalty for contempt of court in Queensland. Punishment may be by fine or imprisonment. A fine is inappropriate. In England the Contempt of Court Act 1981 imposes a maximum punishment of 2 years imprisonment and in New Zealand under the Crimes Act 1961 the maximum term for contempt is 3 months imprisonment. In Re Jones (1990) 58 A Crim R 471 Hedigan J. in the Victorian Supreme Court imposed a cumulative sentence of 6 months on a prisoner serving a long sentence for murder (not life) who refused to be sworn and give evidence in a murder re-trial of his co-accused. In that case he was called "cold" by the prosecution and there was no reasonable expectation that he would give evidence.

Tadgell J. imposed a sentence of 2 years on one Gregory John Brazel on 27 June 1983 in the Victorian Supreme Court for refusing to take the oath in the criminal trial of one Eastwood for murder. Brazel was then an inmate at Pentridge Prison. He declined to give any explanation apart from some obscure reference to charges in another case and was gratuitously insulting to the Court.

In Re Shorten and Purves [1981] Crim LR 620, two robbers who had pleaded guilty and been sentenced on the basis of cooperation at trial refused to be sworn and give evidence in the trial of their co-accused. The Court of Appeal found the contempt established but the punishment was expressed to be short because they had been threatened with harm if they gave evidence. A term of imprisonment of 3 months was imposed.

Whilst acknowledging the very serious interference with the administration of justice that arises here, Garland's refusal to be sworn comes not from an acceptance of the prison culture of not making complaints concerning or giving evidence against fellow inmates, which I regard as more culpable, but from fear of serious adverse consequences to himself and his family. These are not fanciful given what happened to Smith. Mr Rutledge urged a sentence of 12 months or more and Mr Davis submitted that none or a very short term of imprisonment was appropriate. Any proper sentence which I may impose will, in a sense, be worthless. No punishment within the power of this court can in any way counter the apprehended consequences of giving evidence. It may be, if arrangements can be made which ease Garland's concerns, that he may be disposed to give what evidence he can in this matter. When asked why he elected to give a statement to the police initially he said that "the kid involved didn't deserve to be killed like that and I thought - you know, I just thought I would come forward." (t/s 15)

Attempting to balance these various factors I have concluded that a penalty of some significance must be imposed. I sentence Garland to a term of imprisonment of 9 months to be served cumulatively upon the expiration of any sentence which he is presently serving.