R v Guariglia [2000] VSC 13

5. In October 1998 it was ordered that Mr Guariglia be tried separately and that his trial proceed before that of the other two accused. The Guariglia trial took place in May 1999. At his trial he made, pursuant to s. 149A of the Evidence Act 1958, nineteen admissions of fact and these were contained in a document signed by him which was in evidence before me as Exhibit 1. On 24 May 1999 he was found by the jury not guilty of murder and not guilty of the alternative charge of assisting an offender. I do not know what position he adopted with respect to these charges nor on what basis he was acquitted of them.

8. The trial of the other two men was then commenced before the same judge. Each of the two accused was separately represented. When the prosecutor announced his intention to call Mr Guariglia as a witness for the Crown, counsel for the two accused were given the opportunity of examining the new witness on what was called a "Basha enquiry".

11. This application is for orders that Mr Guariglia be dealt with for contempt of court for his refusal to answer certain questions on the Basha enquiry on 28 May 1999 and, further, for his refusal to take the oath or to make an affirmation and give evidence when he was called to do so at the trial in the presence of the jury on 4 June 1999.

14. I should add that this trial did not proceed to verdict, for the presentment shows that the jury was discharged on 2 June 1999 and a second jury was discharged without verdict on 11 June 1999. At a second trial before a different judge the two accused were convicted of the murder of Mr Tran.

17. The evidence before me comprised an affidavit of Samantha Jane Loo, the associate to the first trial judge, sworn on 11 October 1999 which included as exhibits the transcript of the relevant parts of the proceeding on the Basha enquiry and at the first trial. This evidence was not challenged. Counsel for the applicant also tendered Exhibit 1 to which I have referred. The respondent for his part relied upon an affidavit of Andrew Martin George sworn 23 December 1999 which I received and read except for the first and last sentences of paragraph 7 which I rejected as inadmissible hearsay. Counsel on Mr Guariglia's behalf also tendered, by consent and for a limited purpose, paragraphs 1 to 19 of the remarks of the second trial judge upon the sentencing of the two convicted men.

20. The originating motion filed on 13 October 1999 simply alleges a refusal to answer questions on 28 May and a refusal to take the oath or to make an affirmation and give evidence on 4 June 1999. The second charge was not disputed and, indeed, the refusal to be sworn was clearly demonstrated on the transcript. As to the first charge, no complaint was made about any lack of particularity of the alleged offence. In fact, six refusals to answer a question were relied on and these were identified in argument before me. These questions I shall set out in a moment. There was no dispute that the questions were asked nor that the respondent refused to answer them notwithstanding a direction of the trial judge that he do so. What was put was that he was entitled to make this refusal because the questions in each case tended to incriminate him within the meaning of s. 29 of the Evidence Act 1958.

23. Following his acquittal there was, of course, no basis for any apprehension by Mr Guariglia that any answer he might give would tend to expose him to the risk of a conviction for the murder of Mr Tran. It was submitted on his behalf that the answers which he was required to give tended to expose him to the risk of a conviction for perjury, alternatively, to the risk of a conviction for the theft of a car, for armed robbery or for dealing in narcotics. I include in this expression a tendency to open up a line of enquiry which might indirectly expose him to punishment for an indictable offence.[1] In order to understand this submission it is necessary to outline the situation as it stood with respect to these matters on 28 May 1999.

26. The sentencing remarks of the second trial judge were tendered for the limited purpose of showing that the police alleged that Mr Guariglia had committed the offences of theft of a motor vehicle, conspiracy to commit armed robbery and dealing in narcotics on 11 February 1997, the date of the alleged murder. An examination of the exhibit, however, does not bear this out. His Honour said that on that date four men, including the deceased and the respondent, made attempts to break into cars in Croydon and Ringwood and that the conduct of the two convicted men on that day "was characterised by frenetic activities". Nothing more. Mention of these allegations is made at pp. 19-20 of the transcript of the first trial but I do not have any details of them and they do not seem to have loomed large when Mr Guariglia was called to give evidence on the Basha enquiry on 28 May 1999.

29. On that day he was called and affirmed and gave his name and address. Present in court at this time was a solicitor acting for him. His Honour permitted her to advise him, to speak on his behalf and to make submissions as to his obligation to answer questions. The transcript at p. 23 shows the following questions by the prosecutor and his answers:

Prosecutor: Do you know the two accused men, Ronald Benjamin Skelly and Stephen Mathew Wenitong?

Prosecutor: Were you in the presence of the accused men on 11th of February 1997?

Prosecutor: Have you made statements to the police concerning the events that are the subject of this trial?

44. The witness then denied signing records of interview dated 1 April 1997, 2 April 1997, 4 April 1997, 7 April 1997 and 9 April 1997 and a diagram or sketch plan, all of which were shown to him. None of these documents was in evidence before me and I do not know their content. The witness then agreed that he had stood trial for the murder of Mr Tran and that he had been acquitted. He agreed that he had signed a document containing the nineteen Section 149A admissions, that he admitted those facts on his earlier trial and that the admitted facts were true and correct. A copy of this document was in evidence before me, as I have mentioned. This was the substance of the examination of the witness by the prosecutor. At this point the proceeding was stood down before he was examined on behalf of the accused. This was to enable the witness to obtain advice from senior counsel. This done, the solicitor for the witness announced to the court that her client "fears that he may have committed perjury this morning and does not wish to answer any further questions on the basis that he will self-incriminate himself with regards to that possible perjury from this morning. He is prepared to go into the witness stand, but not answer any further questions."

47. Counsel for the accused, Skelly, asked no questions of the witness.

50. Counsel for the accused, Wenitong, commenced the cross-examination of the witness. After some introductory matters he asked whether the witness on 11 February 1997 met a person called Tran. The witness made no answer. His Honour remarked that the witness had earlier that day said he did not know Mr Tran and that he would be in danger of incriminating himself if he were required to answer the question at this stage. I interrupt myself to observe that his Honour's recollection of the evidence, which was unaided by transcript, appears to have been erroneous. The witness had said that he did not know the two accused men, not that he did not know Mr Tran. Nevertheless, his Honour's observation that the witness should not be obliged to answer a question directed to showing that his earlier evidence was perjurious was not disputed by counsel. The remainder of the examination of the witness was conducted on this basis.

53. The witness was then questioned by counsel for the accused, Wenitong, about a number of facts asserted in the Section 149A document. It will be recalled that the witness had earlier said that these facts were admitted by him at the trial and further that they were true. These questions are the first three of the six questions which constitute the first contempt charge.

56. The first question concerned admitted fact number 4 which is in these terms:

"That at 10.53 am on 11 February 1997, STEPHEN WENITONG met RONALD SKELLY in Croydon."

The transcript at page 33 records the following exchange:

Counsel: Do you have any personal knowledge that at 10.53 a.m. on the 11th of February 1997 Stephen Wenitong met Ronald Skelly in Croydon?

His Honour: But I have said you must, so you have a choice of either answering it or being possibly liable for contempt of court, and punished accordingly?

The second question concerned admitted fact number 2 which is in these terms:

"That the body of the Deceased was found by Danny Bennett on Wednesday 12 March 1997."

The transcript at page 33 records the following exchange as to this matter:

Counsel: Do you have any personal knowledge that Doan Sanh Tran was located on the 12th of March 1997 at the Woods Point Road having earlier deceased?

His Honour: Again, I don't think that that question would, if answered, expose you to a charge of perjury, Mr Guariglia and accordingly, I direct that you answer it?

72. The third question concerned admitted fact number 1 which is in these terms:

"That the body located approximately 920 metres from Woods Point Road, Warburton on 12 March 1997, was that of DOAN SANH TRAN, known as PETER TRAN, whose date of birth was 28 May 1971. The said TRAN is the person referred to in the Presentment herein."

The transcript at pages 33 and 34 records the following exchange:

Counsel: Do you have any knowledge as to whether Doan Sanh Tran, who was also known as Peter Tran, was the person referred to in the presentment at your trial?

His Honour: Again, I direct you to answer that question, Mr Guariglia. I assume you take the objection because you seek the privilege against incrimination?

His Honour: Yes. I direct that you answer the question?

83. Counsel then directed a number of questions to other admitted facts which involved the witness and the two accused men. For the most part, his Honour declined to direct the witness to answer these questions on the basis that his answer might tend to show that his earlier denial that he knew the two men was perjurious. Counsel finally asked the witness whether he would, if called to give evidence before the jury, affirm the truth of the document containing the s. 149A admissions. The witness replied that he would not. Referring to this same document the following questions and answers are recorded at pages 40-41 of the transcript:

Counsel: Can I ask you this, Mr Guariglia, did you - if you just have a look at the document for a moment - did you read that document - you said this morning that you had signed the document, did you read the document before you signed it?

His Honour: On the ground it might incriminate you?

You have already admitted that you signed it, Mr Guariglia. I am not sure whether you were asked if you had read it.

Prosecutor: He was not, Your Honour. He was asked as to the truth of its contents, Your Honour.

His Honour: If he answered that he had read the document, it seems to me that he would not thereby be in danger of committing perjury, because it wouldn't be inconsistent with anything he said this morning. Accordingly, I direct that you answer the question Mr Guariglia. What is your response?

Answer: I don't wish to answer that question, Your Honour.

This is the fourth refusal relied upon as constituting the first charge of contempt.

97. The fifth and sixth refusals relied on occurred some time later in his examination. Counsel for the accused, Wenitong, wished to ask the witness about his record of interview with the investigating police on 1 April. It will be recalled that he had earlier been asked and denied signing a police statement dated 1 April 1997. The transcript at page 51 records the following exchange:

Counsel: Mr Guariglia, on 1 April 1997 did you speak to a Detective Senior Constable called Stephen Thomas Campbell?

Answer: I don't wish to answer that question, Your Honour, may incriminate myself.

His Honour: I direct that you answer that question on the basis that you would not incriminate yourself if you did?

His Honour: No, if you had been listening, you would have heard.

Counsel: The response was he didn't wish to answer?

Counsel: Yes. (To witness): Did that examination - if it is put to you that there was a record of interview conducted at the Homicide Squad office on 1 April 1997, what do you say?

Answer: I don't wish to answer that question. It may incriminate myself.

113. Against this factual background counsel for the applicant submitted, first, that I should assume that the direction to answer given by the trial judge was correct so that no justification for the refusal was demonstrated. It was not for me to concern myself with the correctness of his Honour's view that the questions would not incriminate the witness of perjury; it was sufficient that the direction was given and that it was not complied with. It was submitted that the gist of the contempt was a defiance of the authority of the court and that the charge is made out if it be shown to the criminal standard simply that the witness had refused to submit to that authority. I do not agree. The right of a witness not to be compelled to answer an incriminating question is a basic and substantive common law right.[2] Let it be assumed that, in the present case, the trial judge was in error in directing the witness to answer the six questions notwithstanding his assertion of this right. For practical purposes, the witness cannot at that stage challenge the judge's direction. If the witness is not a party to the proceeding, the correctness of the direction cannot be challenged by him on appeal. If the witness has the right not to be compelled to answer such a question, it follows that the witness is not to be punished for not acceding to such compulsion.[3] I must therefore be satisfied before I find a charge of contempt of this kind that the asserted ground is not available. I may not be so satisfied notwithstanding that the trial judge took a different view.

116. It was submitted on behalf of Mr Guariglia that his Honour was correct in stating that the witness should not be compelled to answer a question whose answer tended to show that the earlier evidence of the witness was perjuriously false. It was then put that, having correctly stated this principle, his Honour erroneously applied it with respect to the six questions which I have set out. Counsel for the applicant submitted to the contrary. He said that his Honour's statement of principle was wrong; the witness cannot be relieved of the obligation to answer questions in cross-examination which are directed to impugning his evidence in chief in the same proceeding. Alternatively, the trial judge correctly applied to the facts before him the principle which he had stated.

119. The first question concerned the two accused men meeting at Croydon at 10.53 am on 11 February. It was not suggested in the material before me nor was it put to the witness that he had direct knowledge of such a meeting. In paragraph 4 of the admitted facts this meeting is admitted by Mr Guariglia. The s. 149A document includes an admission that it was not until 12.02 pm on that day that the two men came to the witness's house. The inevitable or likely answer to the question was, therefore "no". Such an answer is not inconsistent with admitted fact number 4 because the question was directed, not to the fact, but to the witness's direct knowledge of the fact. The same may be said of the second question. It was not suggested in the material nor to the witness that he had personal knowledge of the finding of the body.

122. Section 149A permits an accused person to "make admission of any fact or matter that is relevant in the proceedings and any person acting judicially may accept the admission as sufficient evidence of that fact or matter without further proof unless he is of opinion that it would be contrary to the interests of justice so to do having regard to all the circumstances of the case". The provision, in general terms therefore, operates to relieve the prosecution of the burden of proving at trial the admitted fact or matter. In this sense it is akin to an admission contained in a defence filed in a civil proceeding. The statutory admission by an accused may be made as to either a fact or a matter and there is no requirement that the accused have direct knowledge of the admitted fact or matter. Indeed, it may happen that an admission is made of a fact or matter of which the accused's case is that he or she could have no knowledge. For example, an accused who relies upon an alibi may admit the fact and circumstances of the killing, or an accused may admit that a substance is a specified narcotic without having knowledge of that scientific fact. Subject to the protections built into s. 149A, the accused cannot thereafter at the trial depart from such an admission. The evidentiary value of such an admission in another trial of the accused or in another proceeding in which the accused is a mere witness may be a matter of debate. In the present case the prosecutor appears to have been aware of this, for he told the court at the end of the Basha enquiry that his intention was to lead evidence from the witness only with respect to those facts contained in the s. 149A document of which the witness was capable of giving admissible evidence. The form of the questions put by counsel for the accused, Wenitong, also shows an awareness of this distinction.

125. In the present case the witness, in answer to a broad question by the prosecutor, assented to the proposition that the facts admitted in the s. 149A document were true. An examination of the nineteen facts discloses that this answer cannot be taken on its face value as admissible evidence of each of these facts. For example, it is improbable that Mr Guariglia was in a position to give admissible evidence of the date of birth of the deceased man. It is unlikely in these circumstances that a charge of perjury would be put against the witness for a falsity in each of the admitted facts which he had in this way verified. He may well have been at greater risk inasmuch as he had denied in his evidence in chief that he knew the two accused men. It appears likely from the transcript generally that there was evidence to show this answer to be false. The three men had been observed together by the police for some time on the afternoon on 11 February and it would seem that their telephone calls had been intercepted during that day. In these circumstances there is no good reason to believe that the claim to privilege based on the prospect of a charge of perjury based on the falsity of his evidence in chief which may be disclosed in the first or second question is well founded.[4]

128. The third question concerned the identity of the deceased, Tran. Again, the question was directed to the witness's personal knowledge of this fact which was included in his s. 149A admissions. The witness had not previously in his evidence said anything about the identity of the deceased nor anything about his knowledge of this. I cannot imagine how any answer to this question could tend to incriminate him of perjury.

131. The fourth question concerned the s. 149A document which the witness had acknowledged he signed. His answer to the question whether he had read the document before signing it could not directly or indirectly expose him to a charge of perjury. As his Honour observed, any answer he might give to this question was not inconsistent with his earlier evidence in chief.

134. The fifth and sixth questions enquired about an interview said to have been conducted by the investigating police on 1 April 1997. The evidence of the witness on this matter had been simply that he had not signed the record of interview. No answers to these two questions could directly or indirectly expose him to a charge that this earlier evidence was perjurious.

137. It follows from this analysis that, accepting the statement of principle adopted by the trial judge, the witness was not entitled to refuse to answer any of the six questions on the basis relied on. Accordingly, the first charge of contempt has been made out.

140. In so concluding I would not like it to be taken that I necessarily accept the proposition that a witness who has given evidence in a proceeding can rely upon the privilege against incrimination in order to frustrate cross-examination in that proceeding which is directed to obtaining answers tending to show that this previous evidence was false, even perjuriously false. Authority on this point is, not surprisingly, sparse. In an adversarial common law system great importance is given to the role of cross-examination as a means of testing the reliability of a witness's evidence and it will be a brave or desperate witness who seeks refuge in such a claim to privilege when pressed in cross-examination. In any event, I think it very unlikely that this refuge is available. To adopt the statement of the Vice-Chancellor made over 150 years ago in a rather different and unusual case, to permit a witness to commit perjury at an early stage of evidence and then to raise the privilege, thereby denying an opposing party the right to test that evidence or to try to show the witness to be a false witness, would prevent the court from administering justice.[5] A witness under examination is entitled to protection of the right to refuse to give an incriminating answer. That this right is without common law exception has been recently confirmed by the highest authority.[6] In these circumstances the question may arise how the Vice-Chancellor's statement can be accommodated with modern principle. The privilege may be waived. It may be, therefore, that a witness who deposes to a fact upon examination must, so long as that evidence stands unretracted, be taken as having waived the right to refuse to answer questions in that examination where this refusal is based on the sole ground that the questions may tend to expose the witness to the charge of perjury in giving that earlier evidence.[7] Alternatively it may be seen as part of the obligation of the witness to testify to the whole truth, not to parts of it only.[8] In any event, if the law were otherwise, the tribunal of fact may be left with the uncontradicted and unchallenged evidence of a witness against whom it would not be entitled to draw an adverse inference as to credit by reason of the reliance upon the privilege.[9] In the Australian edition of Cross on Evidence[10] it is said that witnesses cannot in this way refuse to answer a question which tends to incriminate them for perjury committed in the same proceeding. This may raise difficulties in identifying what is the same proceeding for this purpose, but the facts of this case do not warrant my entry into this arena. I am mindful that the conclusion which I have expressed may sit uncomfortably with the decision of Gray J in this court in Attorney-General (Vic) v Wallace.[11] It is, however, unnecessary that I take this matter further given my conclusion on the earlier submissions.

143. All of the other ingredients of the two charges have been proved to the criminal standard. Accordingly, I find that the respondent is guilty of contempt of court as charged.

146. I will stand the matter over to enable counsel to place before me material and submissions as to penalty and costs.

[1] Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 310, per Mason, Wilson, Dawson JJ; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 6, per Deane J.

[2] Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 11, per Toohey, Gaudron, McHugh, Gummow JJ.

[3] Registrar, Court of Appeal v Craven (1994) 77 A Crim R 410.

[4] Brebner v Perry [1961] SASR 177 at 180, per Mayo J.

[5] Rice v Gordon [1843] EngR 1050; (1843) 13 Sim 580; 60 ER 225, per Shadwell V-C, referred to without disapproval in Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 13, per Toohey, Gaudron, McHugh, Gummow JJ. See, also, Cobra Golf Inc v Rata [1998] Ch 109 at 157-8, per Rimmer J.

[6] Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 5, per Deane J; at 12, per Toohey, Gaudron, McHugh, Gummow JJ; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380.

[7] See Berner v Schlesinger 178 NYS 2d 135 (1957), affirmed 175 NYS 2d 579 (1958).

[8] See Annest v Annest 298 P 2d 483 at 484 (1956).

[9] R v Hood (1997) 91 A Crim R 526 at 528, per Hunt CJ at CL.

[11] (1982) 65 FLR 15.