REGISTRAR OF THE COURT OF APPEAL v GILBY

Court of Appeal (NSW)|1991-07-16|Before: Mahoney JA

MAHONEY, PRIESTLEY and CLARKE JJA 16 July 1991, 20 August 1991 [1991] NSWCA 235

CONTEMPT OF COURT - Refusal to be sworn as a witness at a trial for indictable offence - Refusal to answer questions if sworn Claim that refusal due to duress - Held: Claim of duress not made out - Nature of duress dismissed. HELD: Guilty of contempt - Sentenced to fixed period of six months imprisonment.

Mahoney JA, Priestley and Clarke JJA This matter involves the consideration of the obligation of a person to uphold the law by giving evidence in a criminal trial.

Neville William Gilby was involved in the commission of an offence relating to the growing of marijuana. Thousands of plants, worth millions of dollars, were grown on his property. He was arrested and ultimately he confessed his part in the offence. He indicated to the police authorities that he would give evidence against the persons involved at their trial. Because of this, when he was sentenced his sentence was less than otherwise it would have been. However, later he refused to give evidence: he gave as his reason that he had been threatened. At the trial, on three separate occasions, he refused to be sworn or to give evidence. He has been charged with contempt of court.

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.

In the present case, the Solicitor-General Mr Mason QC, who appears for the Registrar of the Court of Appeal, has submitted that, if the facts be as charged, the relevant offence is committed. He has cited Hennegal v Evance (1806) 12 Ves Jun 201; 33 ER 77; R v K (1983) 78 Cr App R 82; R v Jardine (1987) 9 Cr App R (S) 41; and Borrie and Lowe, Law of Contempt, 2nd ed, at 41-2. Mr Byrne, for Mr Gilby, has accepted that, if Mr Gilby did what is alleged, he was, subject to the matters to which I shall refer, guilty of such an offence.

Mr Byrne has submitted that it has not been proved that Mr Gilby did what is alleged. He has been charged with two offences, committed on with three separate occasions: that he refused to take the oath or make an affirmation; and that he refused to give evidence. Mr Byrne submitted that the evidence did not show that, on some at least of the occasions, Mr Gilby had refused (as the case was) to take the oath: he submitted that his refusal was only to give evidence, or vice versa. This submission was based on the fact, as it was alleged, that what Mr

Gilby was asked by the learned trial judge to do on each occasion was, properly understood, only the one or the other of these.

The court does not accept that submission. It is clear that, on each occasion, what Mr Gilby was asked to do was to take the oath and to give evidence and that, by what he said and did, he indicated that he would not be sworn and would not give evidence. That is what the trial judge understood by what Mr Gilby said and did and he was, in our opinion, correct.

Mr Gilby's main contention has been that what he did was done under duress and that, because of this, he was not guilty of the offence as charged. The Solicitor-General has, in our opinion correctly, accepted that duress may negative what otherwise would be such an offence. He has referred to R v K (1983) 78 Cr App R 82 and R v Ayres (1984) 15 CCC (3d) 208 at 218-222. And the Solicitor-General accepted that, the matter being properly raised, the onus was upon him to negative the existence of such duress.

However, the Solicitor-General submitted that what here occurred did not evidence duress. He submitted that the elements of (as I shall describe it) a defence of duress are detailed in R v Hurley (1967) VR 526; see also R v Lawrence (1980) 1 NSWLR 122; Howard's Criminal Law, 5th ed, 540-553.

In order to understand the submissions which have been made in this regard, it is necessary to refer to the evidence relevant to the defence of duress. It is not necessary to detail all of the matters to which reference was made. The Solicitor-General, with appropriate fairness, has placed before the court material which arguably would not ordinarily be admissible. Mr Gilby himself gave evidence and little or no objection was taken to what he said or the form of it. The purpose of this or, in any event, the effect of it has been that there is before the court evidence of fact, inference and speculation relating to this aspect of the matter and that evidence is not in all respects simple or consistent. The court will therefore, for the purpose of indicating broadly the context in which the defence has been raised, outline the position as it emerged from such evidence.

Mr Gilby was and is the owner of a property in the north-western area of New South Wales comprising some 62,000 acres. His home is on the property. It is, he said, some sixty miles from the nearest town and some 300 kilometres from the town of Bourke.

A group of persons, including Mr Yordan Markov Panayotov, were concerned in the growing of two crops of marijuana on Mr Gilby's property. The crops were grown by arrangement with him and he was given by those concerned some $50,000.

In due course, a number of the people concerned, including Mr Panayotov, were arrested. Mr Gilby was interviewed by the police and, in the course of a third interview, gave the police a detailed account of what had happened. He agreed to give evidence at the trial of the persons in question including Mr Panayotov.

Mr Gilby's third and most detailed statement was signed by him on or about 13 September 1988. The statement identified his dealings with persons who were to be charged. It referred, inter alia, to a shooting incident which occurred in or about January 1988 on his property, to which reference will subsequently be made. Copies of the records of what he had told the police were, in due course, served upon those concerned including ultimately Mr Panayotov.

UWAEGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clarké JJA)

In May 1989 Mr Gilby pleaded guilty to a charge arising out of the growing of the marijuana and he was sentenced to eight years penal servitude, a non-parole period of three years being specified by the sentencing judge, his Honour Judge Shadbolt.

At the time of the sentencing reference was made to a number of factors relevant to the determination of his sentence: these are detailed in the judgment of Shadbolt DCJ. His Honour referred, inter alia, to "his assistance to the police". His Honour said: "The present prisoner's crime spanned the date in January 1988 and I am therefore of the view that it would attract the provisions of the Probation and Parole Act requiring the setting of a parole period of seventy five per cent. However in the light of his contrition to be seen from his plea, confession and disclosure of all the money he received, the subjective factors set out in the reports tendered which reduces his criminality and the information in Exhibit C which will require that he be placed on protection for the duration of his sentence, Iam of the view that special circumstances obtain sufficient to bring this prisoner within the exceptions expressed by their Honours at page 12 of Regina v Griffiths, 23 March 1989 and in consequence I set a non-parole period of three years. That will date from 23 May 1988."

On 18 and 19 July 1989 Mr Gilby gave evidence in the committal proceedings against Mr Panayotov and others. Those charged were accordingly then aware of the evidence which, in the ordinary course, Mr Gilby would have given against them at their trial.

During this time and until and including the trial of those persons, Mr Gilby was in prison serving the sentence imposed upon him. He was placed in the Witness Protection Programme. That Programme was designed for his own protection. The precise details of it were not proved in evidence in this proceeding but it appears that it involves the prisoner being kept in a particular part of a prison and apart from other prisoners. It was said that, for part of the time, it involved a number of prisoners being kept in, as it was described, a small cage.

During this period Mr Gilby, on some three occasions, asked the police officer involved in the Programme that he be transferred to the gaol at Broken Hill. It was, he suggested, difficult for his wife and children to visit him in Sydney and it would have been easier for them to do so at Broken Hill. This was not done, presumably upon the ground that the Witness Protection Programme safeguards would not have been available at the gaol at Broken Hill.

In February 1990, whilst being interviewed by representatives of the prosecution, Mr Gilby asked that his release date be brought forward. He was told that his release date was a matter to be decided by the Parole Board.

During the first week of October 1990 Mr Gilby was called to give evidence at the trial of Mr Panayotov and other persons. On the three occasions specified in the present charges, on 2, 3 and 8 October 1990, Mr Gilby refused to be sworn to give evidence and refused to give evidence. A transcript of what occurred was taken and relevant details are set forth in the portion of the transcript of each occasion referred to in the summons. Full and proper opportunity was given to Mr Gilby to consider his position. The presiding judge, his Honour Judge Dunford, made clear to Mr Gilby that he was a compellable witness and that if he refused to give evidence he could be dealt with and could be punished by imprisonment by a term added to the term that he then was serving. Mr Gilby had the opportunity to take advice upon the matter and was advised by a solicitor.

Notwithstanding this, and notwithstanding that his position had been fully explained to him, he refused to take the oath or to give evidence.

It is not contested that, on 3 October 1990, after Mr Gilby had on that day refused to be sworn or to give evidence, he was escorted from the court room. The accused were in the court. Mr Gilby looked in the direction of one of them Wayne Wilson and said: "I am helping you blokes out". Some of the accused talked amongst themselves and one of them said: "Well done, Gilby".

Subsequently, the proceeding against Mr Panayotov and others upon a charge of conspiring with Mr Gilby to cultivate the cannabis failed. However, Mr Panayotov was convicted on another charge. He was sentenced to a long period of imprisonment and is still in prison.

At the conclusion of the case against him in the present proceeding and following rejection of a submission that, in respect of some of the charges, there was no case to answer, Mr Gilby gave evidence. He was invited by his counsel Mr Byrne in substance to inform the court of what constituted the duress upon which he relied. His evidence in response to mr Byrne's questions was then as follows:

"Q. Will you tell the court now why it was that you refused to give evidence? A. I refused to give evidence because Jim Morrison come back from Broken Hill after the committal...

Q. If I could interrupt you there, you have referred to a person called Jim Morrison I think, is it? A. Yeah, come back and told me...

Q. Before you go on, will you explain to the court where Mr Morrison fits in? A. They took him back to Broken Hill Court, then come back down and he told me Panayotov had told him, he should have shot me when he had the chance.

Q. There was a committal proceeding in Broken Hill Local Court? A. Yeah.

Q. Mr Morrison, I think, was called as a witness in those proceedings? A. Yeah.

Q. I think during the time that he spent in Broken Hill he was held in custody? A. Yeah.

Q. And during the time he was in custody he, so far as you are aware, had the opportunity to speak to Mr Panayotov? A. Well, he could talk through the windows.

Q. It was Mr Morrison who said to you what Mr Panayotov had said to him about shooting you when had the chance? A. Yeah, he had come back in Special Purpose and told me.

Q. When was that information given to you? A. That was about four, five months after the committal.

Q. What happened after the committal proceedings and before being called as a witness before his Honour Judge Dunford in October 1990 apart from that conversation you have related to us earlier? A. How do you mean?

Q. Did you obtain any information whilst you were being held in custody about the forthcoming proceedings? A. Not really.

Q. What about after the committal proceedings, did you obtain any information then? A. Yeah, I got some message about death threats then.

Q. Who were those messages obtained from? A. Terry Morrison's missus come into the gaol.

Q. How frequently did you get information about threats? A. Oh, it might have been three or four times.

UWREGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clark6 JJA)

Q. And that was between the time you gave evidence at the committal proceedings -- A. Yeah.

Q. - and prior to being called before his Honour Judge Dunford in October 1990? A. Yeah.

Q. What sort of a person did you understand Mr Panayotov to be - what was his nature, his character? A. Oh well, he's a pretty hard man.

Q. Evidence has been given about an incident which occurred early in 1988 where he apparently threatened you with a gun? A. Yeah.

Q. Did you subsequently learn any more about Mr Panayotov's character or reputation while you were in custody? A. Oh yeah, I found out more, that he was a real crook on the outside.

Q. Did you obtain that information before? A. No, inside."

In cross-examination, he gave evidence as follows: "Q. During the whole of the time you were in the Witness Protection Section where was Jim Morrison? A. He was in C Block.

Q. What was it he told you? A. He told me what Denis said, he should have shot me when he had the chance, when he had the gun to my head.

Q. Did you tell anybody that you had been told this? A. How do you mean?

Q. Did you report this information to anybody? A. No, kept it to myself.

Q. This was some time, you think, within about four or five months of having given evidence at the committal proceedings at Broken Hill? A. Yeah, they kept him segro over in C Block and they'd bring them across to B Block and they brought him across after four months, three to four months.

Q. I just want to locate the time of this conversation that you had with him. It was in July 1989 that you gave evidence at Broken Hill? A. Yeah.

Q. Was it some time in 1989 that Jim Morrison told you this? A. Yeah, it was in 1989 or just after.

Q. Are you able to be more definite about the date? A. Well, it would have been around Christmas time.

Q. You discussed this with nobody? A. No, only him.

Q. It was some time after that that you were interviewed by the Crown Prosecutor, Mr Doyle, wasn't it? A. Yeah, I was talking to him for about a couple of minutes.

Q. It was longer than that, wasn't it? A. No, I don't think so.

Q. Were you talking about your evidence? A. Oh, I can't remember. They said they were coming to interview me then later on.

Q. And then there was a later occasion when they came when you refused to see them? A. Yeah, refused to see them.

Q. I want to deal with the first occasion which I suggest to you was in February of 1990. How long did you spend with them on that occasion? A. It wouldn't have been real long, only a couple of minutes.

Q. What did you talk about? A. They were coming out to see me later about giving evidence about the case.

Q. You are not suggesting that two barristers and a solicitor just came out to see you to tell you they would be seeing you later. They must have talked about the case, didn't they? A. Not really.

Q. Did you talk about the release date, your release date, on that occasion? A. Yeah, I mentioned something about it.

Q. You asked them to bring the release date forward? A. Not really.

Q. What did you talk about on the release date? A. I can't remember.

Q. Do you remember asking to get some sort of weekend leave so you could see your family? A. Yeah.

Q. Do you remember them telling you that it was a matter for the Parole Board, or some discussion about the Parole Board? A. For weekend leave, no, they don't give weekend leave in Special Purpose prison.

Q. Do you remember them telling you that on that occasion? A. No.

Q. You were in the Special Purpose Prison at this stage and you knew that you could not get weekend leave as long as you stayed in that prison, didn't you? A. Well, some blokes got it there.

Q. Did you discuss the Parole Board and bringing forward of your release date on that occasion? A. I can't remember.

Q. Do you deny that there was any discussion about your evidence at the case? A. No, there was some talk, they were coming back.

Q. Would you agree with this, that you did not tell them on that occasion that you had decided not to give evidence? A. Yeah, I didn't say anything about it.

Q. Were you still thinking about it at that stage? A. No.

Q. You had made up your mind you were not going to give evidence then? A. Yeah, that was right.

Q. Why didn't you tell them? A. Well, the gaol refused me to see a solicitor. Thad been in that gaol since I got there and they wouldn't let a solicitor see me in that gaol and there's been a bloke, Chris Murphy, Vince Murphy, I think, went to the gaol twice and they wouldn't let him in the door.

Q. Is he related to Christopher Murphy's firm? A. Yeah I think so.

Q. Is there some problem about members of that firm seeing people in the Special Purposes Section? A. I wouldn't have a clue. They refused me access to a solicitor.

Q. Do you say that is why you did not tell them - I am talking about the first time? A. That was when I refused to see them the second time.

Q. Going back to the first time, why didn't you tell them then that you were not going to give evidence? A. I was going to wait until I got to court.

Q. Because things might change? A. What change - how do you mean?

Q. Well, you might have been allowed to go to Broken Hill and serve out your sentence there? A. Not really.

Q. It was one of the things you wanted, wasn't it? A. Yes, to go to Broken Hill close to my family.

Q. And you were pretty annoyed that it was not possible to arrange that for you? A. Well, I can't see why. The bloke that they reckoned was a threat to me was Jim Morrison. He was put back in that gaol and I finished up in the same wing as him at the finish.

Q. So you thought it was Jim Morrison was the -- A. Threat.

Q. You wanted to be transferred to serve out the balance of your sentence at Broken Hill? A. Yeah.

Q. If that had happened you would have been prepared to consider being more co-operative, wouldn't you? A. Yeah.

UWAEGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clarké JJA)

Q. By the time the prosecutor came back to see you the second time it was pretty obvious that you were not going to be transferred? A. No, that would be right because I tried to get a solicitor in to get some information out of the gaol and they let blokes in there but they wouldn't let a solicitor in to see me.

Q. You never reported what Morrison told you to Inspector Brammer, did you? A. No.

Q. Do you remember having any discussion with Inspector Brammer about being put on a witness protection programme after your release? A. No, I never talked about it.

Q. The other five did? A. They went on witness protection.

Q. You say you never talked about it? A. No, nothing was said to me.

Q. I want to make plain what period are we talking about. Are we dealing with the time after you had refused to give evidence or both? A. Before. There was nothing said about witness protection on the outside for me.

Q. Had you discussed with some of your fellow prisoners the availability of this scheme? A. Yeah, well, everyone else was getting it. No one talked to me about it.

Q. Did you ever ask anyone about whether you could get it? A. I feel the position where I live, I don't think they would pay police to stay up there all the time, would they? It'd be a bit dear.

Q. Your position was you were not prepared to move away from Wanaaring, is that right? A. Well, I haven't got much education and I have to stay in the bush for work.

Q. You do not have to stay in a particular place in the bush necessarily, do you? A. Well, I've been a shearer for ten years. I know a fair few blokes over Australia wherever I go."

In re-examination, he said: "BYRNE: Q. You said on a couple of occasions to my learned friend that you did not report the information you received about this threat that Jim Morrison had heard and told you about, do you remember saying that, that you did not report it to anyone? A. Yeah.

Q. Why didn't you report it to anybody? A. I just kept it to myself.

Q. Why was that? A. Because, the reason why, I was frightened.

Q. Who were you frightened of? A. Panayotov, Denis Panayotov.

Q. When you say you were frightened, were you personally concerned about your own welfare? A. No, more my family on the outside.

MAHONEY JA: Q. One matter I would like to clear up. I do not want to press it unnecessarily if there is any objection but I will ask the witness and counsel may feel free to object if they feel it necessary. Mr Gilby, you were asked some questions by Mr Byrne about your wanting to be transferred to Broken Hill, do you remember that? A. Yeah.

Q. You said something about that. Do I understand the position to be that if you had been transferred to Broken Hill you would have given evidence? Think about it carefully? A. No, I wouldn't have, I wouldn't have given evidence when I found out about that shooting incident.

Q. What do you mean by that? A. That's when the bloke come back and told me about when we went to the committal in Broken Hill, and I was trying to get up to Broken Hill before the committal.

Q. If they had sent you to Broken Hill would that have affected your giving evidence or not? A. Oh, I don't know."

Reference was made, in the evidence of Mr Brammer, the Detective Inspector of Police who had been in charge of the relevant investigation, to circumstances which, in his opinion, might be relevant to the suggestion of duress. Mr Brammer said that throughout the entire period of his contact with Mr Gilby and his "numerous conversations with him from the time of his arrest on 23 April 1988 to the present" Mr Gilby had reported to him only one incident involving a threat from any of the co-accused. That event allegedly occurred in early 1988 "when Panayotov put a gun against the opponent's head and fired a shot in the air". Mr Brammer said:

"This happened when the opponent made an objection to a further cultivation of cannabis on his property. Panayotov told him to keep away from the area of the cultivation. I am not aware from the opponent or from any other source of any specific threat alleged to have been made directly or indirectly to the opponent or any member of his family since the time of his arrest on 23 April 1988".

Mr Brammer gave evidence in respect of other persons related to the offences with which Mr Panayotov and others were charged. His evidence was in the following form: "12. On 11 May 1989 at the King Street Court Complex I saw Detective Sergeant John Dolan, he informed me of a conversation between him and Ryko Joe Bedek, who was being held in the cells, in which Bedek said that he had been informed by Craig Knox Doherty that an unidentified prisoner at Parramatta Gaol had told him to tell Bedek that he (Bedek) would be killed if he gave evidence. Bedek, who had undertaken to give evidence, indicated to Detective Sergeant Dolan that he was no longer prepared to do so. Later the same day I was informed that Bedek had handed to Detective Sergeant Dolan at the Court a handwritten note saying that he had reconsidered the matter and was prepared to give evidence on the condition that he stay no longer than necessary in Broken Hill and not stay in prison with other co-accused and that a letter indicating his intention would be handed to the sentencing judge.

At 10.15 am on Monday 15 May 1989, with Detective Sergeant Dolan, I saw Ryko Joe Bedek in the cells at the King Street Court complex, in the company of Craig Knox Doherty, both of whom were in custody. A conversation to the following effect took place: Bedek said: 'I won't be doing it, I've got a message for you."

Doherty handed me a folded piece of paper, which opened and contained printed words pasted upon that paper with the message: 'Craig Joe don't give evidence or else'.

I then had a conversation to the following effect with Doherty and Bedek: I said: "Where did you obtain this letter?'

Doherty said: 'Folded on Joe's bed, it was the top bunk, it came with our meals'.

Bedek said: 'I'm not giving evidence, my mother has also been threatened.'

On the same day Detective Sergeant Dolan informed me that he had obtained a statement from Mrs Valerie Bedek, and in it she said: 'I am the mother of Ryko Joseph Bedek, born 29 August 1956. On 12 May 1989 I was at my home and about 5 pm in the afternoon the phone rang. Our phone number is 741337 - 042

UWREGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clarké JJA)

it is not listed in the directory and is a silent number. I answered the phone there was a male person on the other end. He said, 'Are you the mother of Joe Bedek?' I said, 'Yeah'. He said, 'Tell to Joe if he open the mouth he fuck all our family.' Then he hung up. The whole conversation was in Yugoslav-Croatian language. I have never heard this person before and I don't know who it could be.'

On 20 May 1989 Detective Sergeant Dolan informed me that he had been requested to attend the Parramatta Gaol. There he had spoken to Craig Knox Doherty who undertook to give evidence.

On 22 May 1989 at the District Court, King Street, Sydney I saw Mr Les Brennan, Public Solicitor, who said words to the effect: 'Doherty is prepared to give evidence in the prosecution of Panayotov and the others.'

Later that day, after he was sentenced, Doherty was taken to the Special Purpose Prison.

On 23 May 1989 I was present at the District Court at Sydney for the sentencing hearing before his Honour Judge Shadbolt in relation to the opponent. Exhibit MJB 1 comprises a transcript of those proceedings (pages 1 and 2), exhibits tendered by the Crown (pages 3 to 203), exhibits tendered on behalf of the opponent (pages 204 to 213) and his Honour's remarks on sentence (pages 214 to 217). Sentencing proceedings in relation to Terrence Morrison, Bedek, Damms and Doherty were also heard by his Honour during May 1989.

On 24 May 1989, I was present when the opponent was sentenced by his Honour Judge Shadbolt. In determining the appropriate sentence for the opponent, his Honour took into account his assistance to Police investigations and his undertaking to give evidence against his co-accused. His Honour also noted that the opponent, Damms and Doherty, who were sentenced at the same time, would require placement on protection in the prison system.

I immediately applied for the inclusion of the opponent, Damms and Doherty in the Witness Protection Program, Department of Corrective Services. I am informed by Superintendent Jones and verily believe that on that day the three prisoners were taken to the Special Purpose Prison, Malabar, where they were assessed as to the appropriateness of their inclusion in that scheme. I am further informed that the inclusion in the scheme was approved by the Interdepartmental Committee. I had consulted with their legal representatives prior to their sentencing as to procedures to be adopted to ensure their safety and segregation.

I recommended that the opponent and certain other witnesses be included in the Department of Corrective Services Witness Protection Programme because I believed that there was a real risk that those co-accused who had assisted in Police investigations, and had undertaken to give evidence, would be subject to intimidation and/or harassment, particularly whilst in custody, and that there was cause to fear for their safety. Although threats had not been directed at the opponent, the fact that he had co-operated with police and the fact that others who had likewise co-operated had been threatened, warranted his inclusion in the program. In making this recommendation in relation to the opponent I had regard to the following information conveyed to me in conversations with the opponent, co-accused or police officers:

(a) the alleged incident referred to at paragraph 11 of my affidavit;

(b) a conversation between Panayotov and Lucia Morrison, the wife of Terrence Morrison, on 26 April 1988 recorded in a statement of Lucia Morrison dated 4 May 1988 as follows:

'(Panayotov) then said words to the effect of, Gilbey (sic) the bastard, I should have finished him off when I had the chance.'

I know that Gilbey is the manager of the property where the crop was being grown. He went on to explain how Gilbey and himself had had an argument and that he had fired a shot between his legs. I cannot recall what he said the argument was over.

He said words to the effect of, 'I pulled the gun to shoot him I was going to kill him but he saw the gun stumbled back and fell and the gun went off between his legs.'

So far as I am aware the opponent was not informed of this conversation. In the same conversation Panayotov told Lucia Morrison that Terrence Morrison was 'going to be very seriously hurt or worse.'

(c) other alleged instances when Panayotov had threatened those involved in the cultivation of cannabis at Berrawinnia Downs prior to discovery of the cultivation by police.

(d) conversations in June and July 1988 between Panayotov and Lucia Morrison, James Morrison and his de facto wife Jayne Archer in which Panayotov asked them to get Terrence Morrison to tell authorities that Mustafa organised the cultivation of cannabis and that Panayotov provided funds believing that the operation involved sheep farming. While no threats were stated in these conversations they indicated to me that Panayotov may attempt to influence witnesses.

(e) the alleged threat to Bedek and Doherty referred to in paragraph 12 of my affidavit;

(f) information was received that there was a 'contract' out on Terrence Morrison and Damms in relation to an associated matter in which those persons had given information to the police. The opponent was not involved in that matter and I accordingly did not assess this as presenting a threat to the opponent.

In addition the criminal antecedents of those involved in the cultivation, including Panayotov, Wayne Allen Wilson, Mark Anthony Mullen, and Frank Pollard, which included offences of assault and armed robbery, indicated that in the past they had resorted to violence and therefore threats by them were to be taken seriously.

Subsequent to the opponent's imprisonment in May 1989, I was informed of further alleged threats directed at other co-accused witnesses:

a. I was informed by Prison Officer Hilary Woodham and James Wesley Morrison that an approach was made to James Morrison, on about 15 July 1989 at the Broken Hill Gaol, by Panayotov and Bedek in which Panayotov and Bedek made threats against the lives of the Morrison family and also offered him financial reward so that he would not give evidence in the committal proceedings being heard at the Broken Hill Local Court at the time.

b. I was informed by Prison Officer Pinch and James Wesley Morrison that on 18 July 1989 James Morrison received a telephone call at the Broken Hill Gaol from his brother Robert Morrison, alleging that a large contract had been taken out on the lives of the Morrisons, by another co-accused Frank Pollard. This telephone call was monitored by a gaol official. Whether this information was valid or not was never established.

The instances referred to in the preceding paragraph further reinforced my belief for the need to maintain the security of the opponent and other co-accused witnesses."

UWAEGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clarke JJA)

Sometime after 8 February 1990 Mr Brammer, who had been in charge of the dealing with Mr Gilby, was informed by an officer at the Special Purpose Prison that Mr Gilby did not wish to have contact with him: he was given no reasons for Mr Gilby's attitude.

Mr Brammer then, without objection, gave the following evidence: "31. On 19 March 1990, I attended the property of 'Berrawinnia Downs', Wanaaring, where I spoke to the opponent's wife, Denise Gilby. I discussed with her a number of matters relating to the opponent and had a conversation with her to the following effect:

I said: 'For reasons unbeknown to me, Bill does not want to talk to me. He will be called as a witness in the trial. I realise that he has not seen you and his family that much. I have explained to him the reasons why he cannot go to Broken Hill Gaol, particularly because of the threats to the others. Where he is is the best place for him.'

She said: 'I realise that. Bill has to understand that it is difficult for us running the property and getting down there, I have the shearing on at the moment and I will go down in the holidays at Easter with the kids and see him.'

I said: 'If you require some assistance in accommodation or transport down there give me a ring.'

She said: 'We will probably stay with my brother. I'll give you a ring if we want some help.'

I thereafter had no further contact with the opponent or his wife. I am aware that the area received extensive rain some short period later which caused extensive flooding in the North Western area of the State, particularly the Wanaaring, Bourke and Nyngan area.

At no time did the opponent's wife inform me of any threat received by her or her family.

A co-accused Garry John Knight, pleaded guilty during the trial of Panayotov and others to matters relating to this prosecution. He was sentenced to a term of imprisonment. He gave extensive evidence for the Crown during the trial. An application for his inclusion in the witness Protection Programme whilst in custody was rejected. He served his sentence in the 'mainstream' of the gaol system which also contained a significant number of those convicted, including Panayotov. I am not aware of any threat having been made to Knight whilst in custody or since his release on 21 December 1990.

The spouses and families of Terrence Morrison and James Morrison, continued to reside in the general area where they were domiciled prior to the detection of the cultivation. The wife of Terrence Morrison did participate in the NSW Police Service Witness Protection Programme for a period of some three months whilst Morrison was on bail in 1988, she then returned and continued to reside in the general area of her former domicile.

In all, seven co-accused, including James Morrison, Terrence Morrison and Doherty, gave evidence at the trial of Panayotov and others concerning the cultivation of cannabis at Berrawinnia Downs. Those witnesses and members of their families who sought to be included in the Police Service Witness Protection Programme were given assistance. Some did not seek such assistance. Bedek refused to give evidence. Damms gave evidence in the Committal proceedings

but sent a message that he would not give evidence at the trial, at which time he could not be found.

Notwithstanding the threats allegedly directed against the opponent's co-accused and their families, I am unaware of any attempts having been made to carry out those threats. I am aware of no instance of any witness who gave evidence at the trial having been threatened or harmed in any way since giving evidence."

Questions were asked of Mr Brammer in cross-examination. They did not alter the thrust of the evidence given by him in chief.

We come now to consider what conclusion should be drawn as to the reasons why Mr Gilby refused to do what the law required of him at the trial of Mr Panayotov and his co-accused.

In the assessment of what Mr Gilby did and what he said before this Court in evidence, it is important to bear in mind how he appeared before this Court. He is a well built man whose life has been upon the land. He was employed working with cattle in the Northern Territory and was for some ten years a shearer. It was suggested to him and not in substance denied that he had taken part in an episode or episodes of physical violence in support of the contention by shearers that wide combs should not be used in the shearing industry. In our assessment of the effect and credibility of his evidence, we have taken into account what he has said and the manner in which he gave the evidence that he did.

We do not accept that he did what he did on 2, 3 and 8 October 1990 because of fear that, if he did give evidence, he or his family would suffer at the hands of Mr Panayotov or other persons involved in the offences in question.

Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in generaL, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do.

In order to constitute duress in the sense relevant to an offence of the present kind, it is necessary that there be, in the sense to which we shall refer, elements of immediacy, directness and fear in respect of what has been done. It is not necessary for present purposes to attempt to detail exhaustively the elements of duress for this purpose, or to discuss such elements in abstract terms. It is the nature of what Mr Gilby felt in this case which is at the heart of the matter. It is sufficient to conclude that, these elements being absent, we are not satisfied that Mr Gilby did what he did because of duress.

The essential question will remain in the end whether the refusal of the accused to do what he should have done in fact resulted from threats to which it was acceptable that he should give way. In answering this question, the immediacy of the threat, the directness of what was done, and the fear which it engendered in the accused are, in a case such as this, of particular importance.

The offences charged occurred in early October 1990. The event to which personally Mr Gilby referred, Mr Panayotov's use of a gun, occurred in early 1988. The conversation with Mrs Morrison in which the event was referred to is alleged to have taken place on 26 April 1988 and there was in it no direct reference in terms to Mr Gilby giving evidence, although a reference was made to harming Mrs Morrison's husband Terrence Morrison. If the evidence of Mr

UWREGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clarké JJA)

Gilby in relation to conversations be accepted - we treat his evidence with some scepticism - the subsequent reference by Mr Morrison to the matter was some time before October 1990.

What Mr Panayotov did was not a direct threat to Mr Gilby. It is, of course, not necessary that a threat to harm a person be made in precise terms for him to be legitimately fearful for his safety. But what Mr Gilby here suggested caused fear to him was essentially an inference from what had happened in early 1988 and a subsequent reference to it. If Mr Panayotov said what it is suggested for Mr Gilby he did say, there was an expression of serious ill-will and animosity towards Mr Gilby: no doubt Mr Panayotov felt that way. And, as it was said, he was "hard". But there was, in our view, nothing in what was done which represented a direct threat of specific harm to Mr Gilby or his family by Mr Panayotov.

In order that a court be satisfied that there is duress for this purpose, it is ordinarily necessary that the person in question have a real and a sufficiently substantial fear for his own safety or, perhaps, the safety of those close to him. If there is in fact no such fear or if it be not of such a kind, then a court will ordinarily conclude that there is no duress.

We do not mean by this that if subjectively a person fears for his own safety, that alone is sufficient to constitute duress. In our opinion a mere subjective fear is not of itself sufficient to constitute duress. (There are, of course, other matters in addition to fear which are necessary for duress: see R v Lawrence (1980) 1 NSWLR 122 at 143, 158, 163. But we are here dealing only with fear and what is necessary in that regard). The fear must be, as we have suggested, a fear which is strong and substantial, to the extent that it causes the person to do what he should not do, viz, to refuse to be sworn and to give evidence.

Nor do we mean by what we have said to determine finally whether subjective fear of this kind is in itself enough or whether there must, in addition, be other circumstances such as would, for example, produce such a fear in the mind of the ordinary or the reasonable person. These matters were referred to in argument. We do not think that it is necessary to express a concluded view upon the relationship between, as it has been described, the subjective and the objective elements of duress: see R v Lawrence (1980) 1 NSWLR 122.

It is sufficient that, in the present case, we find that Mr Gilby did not have a fear of this kind as to what Mr Panayotov might do to him and that such a fear was not the reason why he did what he did.

It may be accepted that Mr Gilby had a general apprehension as to what might occur if he gave evidence at the trial of the persons concerned. The remark which he made to the then accused in court on 3 October 1990 may have been made because of apprehension that he felt; it may on the other hand have been made because of his previous association with them or for some such reason. But, having considered the evidence which Mr Gilby gave before this Court as to his reason for doing what he did, we are satisfied that it was not a direct or substantial fear of what Mr Panayotov might do which caused him to do what he did.

We therefore find Mr Gilby guilty of the six offences with which he has been charged.

We come now to consider the sentence to be imposed. Counsel agreed that it was convenient that the court be addressed upon the matter of sentence prior to its determination in respect of guilt or innocence of the offences and that the court, if it found Mr Gilby guilty, proceed to sentence.

In our opinion, it is necessary to impose a significant sentence of imprisonment. Several things may be said in relation to the offences committed. First, they are serious. 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 give evidence when property 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.

We have stated these matters in general terms. There are, of course, qualifications to what we have said. The extent to which, for example, the likelihood of arrest and conviction will deter the commission of criminal offences is no doubt arguable. But it may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the Law will be, and will be seen to be, punished.

Second, Mr Gilby was well aware of the consequences of what he proposed to do. Dunford DCJ took particular care to ensure that Mr Gilby understood that what he proposed to do was wrong, that advice was available to him, and that he knew that, if he did what he proposed, he might be sent to gaol. What Mr Gilby did was therefore a deliberate and conscious breach of the law. He did what he did with the realisation that he might be sent to gaol for it.

Third, the offences were committed in the context of serious crime. Mr Gilby and those associated with him committed planned and serious breaches of the law in relation to prohibited substances and they did so for, it may be inferred, substantial personal gain. The sentences imposed provide some indication of the seriousness of what they had done. It is not necessary to attempt to determine precisely the effect which the refusal of Mr Gilby to give evidence had upon the several charges brought against the relevant accused. It is clearly established that his evidence was important in the conviction of them in respect of some at least of the offence,. The evidence of Mr Wood, the solicitor acting for the Director of Public Prosecutions, was that Mr Gilby's evidence "was essential for proof of the charge against each of the accused on the first count in the indictment" and Mr Wood said "that the charges against each of the accused, except for the accused Beavan, on the first count failed as a direct result of the refusal of the opponent to give evidence at the trial". And, Mr Wood said, the evidence against each of the accused in relation to the third count in the indictment "was weakened, in varying degrees, by reason of the failure of' Mr Gilby to give evidence. It is not necessary to decide whether Mr Wood's estimate of the matter should be accepted without qualification. Mr Gilby's evidence was, on any assessment of the matter, important.

Fourth, it is proper, in assessing the present contention of duress and the significance of it, to recall the lack of substantial complaint by Mr Gilby to those who might have been of assistance in respect of any suggested threat or duress. It has been accepted that, at the time when he gave evidence at the committal proceedings, Mr Gilby intended to give evidence at the trial. It is relevant, in considering the weight to be given to Mr Gilby's assertions to have in mind that he made no complaint to Mr Brammer or to any other person who, in relation to the Witness Protection Programme or otherwise, would have been of assistance to him had the threats been made and been of relevant significance. He did not

UWFEGISTRAR OF THE COURT OF APPEAL v GILBY (Mahoney JA, Priestley and Clark6 JJA)

discuss the matter with the police officers, the Crown Prosecutor, or Mr Wood. Mr Wood gave evidence, without objection, that on 16 May 1990, when he attended the prison with the Crown Prosecutor to interview Mr Gilby, he was informed by a prison officer that "Gilby said, 'They can go and get stuffed, I am not going to give evidence'".

And, in addition, it is relevant that, because of his stated intention to give evidence at the trial, he received a sentence significantly less than otherwise he would have received. It is to be borne in mind that it has been accepted that, at the time of sentencing, it was in fact Mr Gilby's intention to give evidence: that intention was changed only subsequently. But the fact remains that the sentence which he served was less than otherwise it would have been.

There are subjective factors to be taken into account in favour of Mr Gilby. Some of these have been referred to in the judgment of Shadbolt DCJ when sentencing him. It is not necessary to repeat them. Mr Byrne, before this Court, has referred to, inter alia, Mr Gilby's illiteracy, the dependency of his wife and four children upon him, the isolated nature of the property that he owns and conducts and the risk that he may yet be harmed, on such an isolated property, by Mr Panayotov or others associated with the original offences.

Mr Gilby was, until the events in question, a person without a criminal record. The court has had the benefit of reading the reference to his psychological faculties in the material previously before the sentencing judge.

It is not now possible to ensure that Mr Gilby serve the sentence which otherwise Shadbolt DCJ would have imposed upon him. It is not possible to ascertain with precision what additional sentence that would be. However, it is necessary that the Court, by the sentence that it imposes, indicate plainly the serious nature of what has been done and that it be clear that failure to give evidence in circumstances such as these will be likely to attract significant punishment.

The Court has taken into account the special circumstances of Mr Gilby's position in determining the sentence to be imposed. He should be ordered to serve a fixed period of six months.

The form of a sentence for an offence of this kind requires consideration. The parties have not argued the question whether the Sentencing Act 1989 applies to imprisonment for an offence of this kind. If that Act does apply, and if it be necessary to consider the imposition of a fixed term and then an additional term of imprisonment under that Act, the course to be adopted in the present case is to decline to set minimum and maximum terms and, as has been done, to set a fixed term of imprisonment as contemplated by that Act. This is the appropriate course to adopt because of the nature of the offence and because the purposes for which an additional term of imprisonment would, in such a case as this, be imposed are not appropriate in the circumstances of the present offences. As the period of imprisonment to be served is of no more than six months, the form of order indicated, viz, a fixed period of imprisonment for that time, will be appropriate.

The charges laid against Mr Gilby were originally nine in number. He was charged separately in respect of what happened on the three occasions in question, namely, 2, 3 and 8 October 1990. The charges were that on each of these occasions he did three distinct things: (a) He refused to take the oath or make an affirmation; (b) He refused to give evidence; (c) He refused to take the oath or make an affirmation and to give evidence.

At the commencement of the hearing before this Court, the Solicitor-General, Mr Mason QC, elected to abandon the charges based on the third of these and therefore proceeded only with the six charges based on (a) and (b).

As the Court has held, Mr Gilby refused to take the oath or make an affirmation and refused to give evidence. The occasion for him to, in the ordinary sense, commence giving evidence, would arise only after he had taken the oath or made an affirmation: it is not necessary to consider the point at which strictly the giving of evidence commences. But as has been indicated Mr Gilby made it clear that he would not discharge his obligation to give evidence and what he did constituted the relevant offence.

Therefore the Court's decision is that he has been guilty of the six offences which have been pressed.

Imprisonment for six months in respect of each of these offences is appropriate. In the circumstances, the sentences for each of these offences should commence on the same date and they should be served concurrently. The sentences should commence from the date of delivery of this judgment, namely, 20 August 1991 and the release date should be 19 February 1992.

The Court will, upon the delivery of this judgment, allow the parties the opportunity to address the Court upon the form of the sentences appropriate to give effect to the decision of the Court that Mr Gilby should serve the fixed period of six months imprisonment. Subject to such other orders as may be made at that time, the orders which the Court makes are those set forth above.

Mr Gilby should be ordered to pay the costs of the present proceeding.

Solicitors for the Claimant: HK. ROBERTS, CROWN SOLICITOR Solicitors for the Opponent: CHRISTOPHER MURPHY

At a glance

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Judgment (195 paragraphs)

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