Registrar of Court of Criminal Appeal v Gilby, Court of Appeal, 20 August 1991, unreported.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Daniel James Ezold comes before the Court charged with contempt in the face of the Court constituted by his wilful refusal to take an oath or affirmation and to give evidence. 2 He was originally to be tried jointly with a co-offender, Jason Farrell, for murder. For reasons which are no longer relevant, the trials were separated. The offender, Mr Ezold, was tried first, convicted and sentenced. He was sentenced just a few days before the trial of Farrell commenced. The Crown intended to call him to give evidence at the trial of Farrell. It was apparent even then, however, that Mr Ezold had already told the Crown that he did not intend to give evidence.

3 The matter was raised again during debate on his sentence and I drew attention to it in the remarks I made when sentencing him. I said on 20 February this year that his reluctance to give evidence in the forthcoming trial did not cause me to doubt conclusions I had reached about the prospects of his rehabilitation.

4 The trial of Farrell proceeded and Mr Ezold was called to give evidence. On 22 February 2002 he was asked to stand in the witness box. He was handed the bible and the oath was administered. He did not respond. He was then twice invited to respond to the words of the solemn affirmation. He did not respond. 5 This exchange then followed - HIS HONOUR: Mr Ezold, the affirmation has been read to you and you have twice been invited to respond. Respond by saying I do. You've said nothing. Did you understand what was being read to you?

EZOLD: Yes. HIS HONOUR: Am I to take it that you do not wish to give evidence in this matter?

HIS HONOUR: Am I to take it that you refuse to give evidence in this matter?

EZOLD: Yes. HIS HONOUR: Do you understand that if you refuse to give evidence, you may be dealt with by the court for contempt of court?

HIS HONOUR: Do you think you ought to get some legal advice about this?

EZOLD: No. 6 The matter concerned me and I sought the assistance of the Crown Prosecutor as to what might be done. I gave an opportunity to counsel then appearing for Farrell to say something about the matter. I told Mr Ezold that he was a person in my opinion who was compellable to give evidence in the trial and I directed that he should do so. I asked him whether he understood and he said that he did. The affirmation was then administered to him a third time and he still did not respond. 7 Some minutes later I said this - HIS HONOUR: Mr Ezold, I said no more to you than that you might be dealt with for contempt. If you were dealt with for contempt of the court, that would be after an inquiry whether you were adjudged guilty of contempt of court. That inquiry would be made by me. If I adjudged you guilty of contempt of court, I would have the power to impose a sentence of imprisonment on you. So far as I'm aware, there is no limit to the length of the sentence that I could impose. 8 Mr Ezold was well aware of what he would face if he continued to refuse to give evidence. There was still a chance for him to change his mind and it was convenient to adjourn this question until the following day. I did that because what I might term the point of no return in the Crown case had not yet arrived. On the following sitting day and Mr Ezold again confirmed his attitude. 9 The matter was then adjourned so that the trial could proceed. When Mr Ezold was called up the matter was adjourned again so that his solicitor could follow up an application for a grant of legal aid. It is the pursuance of the grant which has in part explained the delay that has taken place between the events and today's proceedings. It is a matter of some satisfaction for the Court that there has been a grant of aid and the Court has received assistance from Mr Craigie of Senior Counsel, Deputy Senior Public Defender. The Court has been fortunate also in receiving the assistance of the Crown Advocate, Mr Cogswell of Senior Counsel. 10 At the commencement of proceedings today, Mr Craigie announced that he had read a transcript of the proceedings and that the contempt was admitted. 11 Counsel made submissions about the law pertaining to the matter. I need refer only to a small number of cases. 12 In Registrar of Court of Appeal v Gilby, an unreported decision of the Court of Appeal delivered on 20 August 1991, the Court dealt with the seriousness of the circumstances attending a person's refusal to give evidence. Their Honours said this: A person who, when properly before the Court to give evidence, refuses to be sworn or to give evidence when he should is prima facie guilty of a breach of the law. In general terms, the law requires that a person give evidence in circumstances such as the present. Justice is administered for the benefit of the community and there is, in general, an obligation upon the members of the community to do what is required for that purpose. The offence which is committed by a refusal to do so is conventionally described and dealt with under the heading 'Contempt of Court'. It is, more accurately, to be seen as the failure to discharge the obligation which a person owes as a member of the community or because he is within it.

Their Honours said at page 26 of the same judgment: If in a criminal proceeding a person refuses to give evidence when he should, he causes harm to other persons in his community: at least they are liable to suffer harm because of what he has done. It is, as we have suggested, a requirement of the law that, in general, a person gives evidence when properly called upon to do so, in order that criminals may be convicted. If criminals are not going to be convicted, they are less likely to be pursued and arrested. And, if they are not to be pursued or arrested, then the individual members of the community will suffer from what criminals will do.

Their Honours went on to deal with the seriousness of the consequences attendant upon a refusal to give evidence in a criminal case.

13 In Smith v The Queen (1991) 25 NSWLR 1 Kirby P said this: These are good reasons for adhering to the rule that to refuse to be sworn (or to affirm) or to give evidence such as occurred here amounts to a serious contempt in the face of the court. It is serious because courts decide cases on the basis of evidence. If evidence is unjustifiably withheld, the administration of justice is impeded.

and his Honour there referred to a portion of the judgment in Registrar Court of Appeal v Gilby .

14 A number of relevant matters arise for consideration when dealing with an offence of this kind. They were conveniently brought together by Dunford J in Wood v Staunton (No 5) (1995) 86 A Crim R 183. At 185 his Honour listed ten circumstances. The list is not exhaustive though it is comprehensive and it is convenient to deal with this matter by reference to it.

15 The first is the seriousness of the contempt proved. It seems to me that the contempt here was serious, and I refer in that respect to the remarks of the members of the Court of Appeal in Gilby. It is a serious matter when persons refuse to give evidence in criminal cases because it strikes at the administration of justice.

16 The second matter is whether the contemnor was aware of the consequences to him and of what he did. It is clear from the passages of the transcript which I have read that Mr Ezold was aware of those matters.

17 The third consideration is the actual consequences of the contempt. Farrell was convicted in due course. Furthermore, his case at trial was not that he did not do the act causing death - that was admitted from the start - but that he lacked the specific intent necessary for murder because of the effects upon him of alcohol and an illegal drug. It may be that Mr Ezold might have been able to say something about the appearance of Farrell so as to inform the jury about the effect, if any, upon Farrell of those drugs. It was equally obvious before the trial began that the Crown's principal intent in calling Mr Ezold to give evidence was, if the occasion should arise, to cross-examine him and put in his hand an incriminating letter he wrote to a friend setting out the activities of himself and Farrell. The Crown I expect would have put to Mr Farrell in detail, if permitted, the details of what he had there written that Farrell had done.

18 Although the refusal to give evidence had very serious potential consequences, it has to be said in all the circumstances that the actual consequences were not serious and might not even have existed.

19 The next consideration is whether the contempt was committed in the context of serious crime. Here it was. Murder is the most serious crime with which the Court routinely deals.

20 The next consideration is the reason for the contempt. This is a matter attended by a little difficulty in the present case. I have already referred to the submissions made to the Court well before these events that Farrell had no intention of giving evidence for the Crown.

21 During debate on Mr Ezold's sentence, mention was made from the Bar table about a fear that Mr Ezold had of consequences for his family if he gave evidence. When the matter was before me on 22 February Mr Ezold was asked why he was taking the attitude he was but he refused to answer the question. 22 Today there has been put before the Court a report of Anna Robilliard, a psychologist. It sets out a history of Mr Ezold, himself and his life, and of the offence, and proffers some reasons why Mr Ezold refused to give evidence. It says that he was sentenced on 20 February and that two days later was placed in the witness box. At the time he was trying to deal with the sentence he had just received. The report goes on to say that he had been expecting to be found not guilty. The ordeal of his own trial left him reluctant to become involved in that of Farrell and it was painful for him, as it is put, "to be stripped to the bone". He felt that he needed to keep a piece of himself and was ill-equipped to stand appearing at another trial so quickly. 23 I should say that Mr Ezold was tried late in the previous year and that quite a long time, quite a number of weeks, went by between the time that the jury found him guilty and the time of sentence.

24 It is not easy to understand the relevance of the remark that Mr Ezold fully expected to be found not guilty. He was advised by counsel throughout and could not but have expected a sentence of approximately the kind ultimately imposed. Miss Robilliard reports that in addition to his psychological and emotional conditions Mr Ezold said that he was frightened to give evidence against his co-accused as he knew the prison culture and the attitudes of prisoners to "dogs". He also said he would be in custody for the next 12 years of his life and did not want to live in fear all the time. He said that he had no particular fears of Farrell but that he did generally fear the prison population.

25 There appears to have been a change in the attributed reason for Mr Ezold's refusal to give evidence. The strong and overbearing attitude of Farrell was drawn to the Court's attention. There is no doubt that he had an influence on Mr Ezold in the course of the principal offence. The difficulty is to know whether the originally expressed fear has any part to play in the reasons why Mr Ezold decided not to give evidence, whether it is that fear or whether, as he said through Miss Robilliard, he has no particular fear of Farrell.

26 I can well understand that a person embarking on a long prison sentence would be very apprehensive about being known within the prison population as a willing informer. Mr Craigie has put forward two monographs of the Australian Institute of Criminology saying something about the rate of mortality of such persons. The monographs are of no direct assistance, not least because Mr Ezold was not aware of them, but it is well understood, and I accept, that prison is a dangerous place, especially for a young man who is likely to be housed with others who have committed violent offences and especially if the young man has the kind of reputation which Mr Ezold was, I think, concerned not to have.

27 Ultimately it may not matter precisely what Mr Ezold's reasons were. I am comfortably satisfied that they were grounded in a fear that he would suffer retribution if he gave evidence.

28 The next relevant consideration is the character and antecedents of the contemnor. As the Crown Advocate has pointed out, he comes for punishment as a person convicted of murder. It is not irrelevant, however, that before his conviction he was a man of good character with, I think, only one minor offence concerning an aberration with alcohol.

29 The final two matters are general and personal deterrence and denunciation. General deterrence and denunciation are important because the message must go out that there will be serious consequences for people who refuse to abide by their obligations to society to act appropriately in the criminal justice system. I think that there is little or no consideration of personal deterrence in this matter. Mr Ezold faces a long non-parole period for the murder of which he has been convicted. It seems unlikely that those circumstances will repeat themselves.

30 There is one other matter that I was invited by Mr Craigie to take into account and that is that this case is distinguishable from the situation in which a contemnor does what he does by way of complicity with an offender or for benefit, or, having received a benefit for a promise to give evidence, turns back on that promise. I think that the submission is well made and I think that for that reason this contempt was not as serious as many. 31 I take into account the fear with which Mr Ezold was faced, and I take into account that it was not his desire necessarily to frustrate the legal process. Having said that, I am satisfied that he was well aware that that might be the result of his actions.

32 I think that it is necessary to impose a sentence of full time imprisonment and that no lesser sentence would give effect to the need for general deterrence and retribution and to bring home to the public the seriousness of offences like this one. I am also aware that the ordinary principles of sentencing apply and that I am imposing this sentence in conjunction with a 12 year non-parole period.

33 I think that it is appropriate, having in mind the total criminality of the two offences, to impose a sentence which is partly concurrent with and partly cumulative upon the non-parole period of the existing sentence. My intention is to impose a six month sentence which overlaps the non-parole period by three months and results in Mr Ezold serving three further months before he becomes eligible for release on parole.

34 Daniel James Ezold I find you guilty of contempt of Court. I sentence you to imprisonment for a period of six months commencing on 19 August 2012 and expiring on 18 February 2013. Because the whole of that sentence will be served within the non-parole period and the parole period of the sentence which you are now serving, I decline to set a non-parole period.

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