In the matter of KL [2024] NSWSC 1334

Supreme Court New South Wales

Medium Neutral Citation: In the matter of KL [2024] NSWSC 1334 Hearing dates: 19 September 2024, 11 October 2024, 23 October 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 8 July 2024. (2) Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 19 August 2024. (3) For the contempt in the face of the Court on 8 July 2024, I order that KL be committed and detained as a juvenile offender for a period of 6 months commencing 23 October 2024 and expiring on 22 April 2025. (4) For the contempt in the face of the Court on 19 August 2024, I order that KL be committed and detained as a juvenile offender for a period of 9 months commencing 23 October 2024 and expiring on 22 July 2025. (5) Both of those orders are wholly suspended on the condition that KL be of good behaviour including that he does not commit contempt in the face of the Court by refusing to answer questions if he is called as a witness in the trial of YA. (6) If KL refuses to answer questions in the trial of YA, he will be invited to show cause why the order suspending the periods of detention ought not to be immediately revoked. Catchwords: CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether "criminal" or "civil" proceedings – Children (Criminal Proceedings) Act held not to apply CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 25, 33(1)(b) Children, Youth and Families Act 2005 (Vic) Children's Court Act 1987 (NSW), s 21 Evidence Act 1995 (NSW), s 128 Major Crime (Investigative Powers) Act 2004 (Vic) Supreme Court Rules 1970 (NSW), Pt 55, r 13 Cases Cited: Allen v R (2013) 36 VR 565; [2013] VSCA 44 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Carr v R [2024] NSWCCA 103 Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 In the matter of Daniel James Ezold [2002] NSWSC 574 In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Morris v Crown Office [1970] 2 QB 114 NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 Principal Registrar of Supreme Court of New South Wales v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 Prothonotary of the Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 Prothonotary of the Supreme Court of New South Wales v London [2023] NSWSC 1252 Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym) [2023] NSWSC 1077 Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495 R v Abdallah: In the matter of John Leger [2014] NSWSC 320 R v Abdallah: In the matter of Matthew Lewis [2014] NSWSC 319 R v Bilal Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 R v Diallo & Ors (No 16) [2024] NSWSC 1221 R v Diallo & Ors (No 7) [2024] NSWSC 978 R v Duncan [2000] NSWSC 440 R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 R v Hopkins (a pseudonym) [2018] VSC 756; (2018) 276 A Crim R 11 R v WE (No. 15) [2020] NSWSC 332 Registrar, Court of Appeal v Ritter and Another (1985) 34 NSWLR 638; (1985) 74 A Crim R 551 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Texts Cited: Justice Natalie Adams and Belinda Baker, 'Sentencing for Contempt of Court' (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020) David Kell SC and David Norris, 'Developments in penalties for contempt by refusal to give evidence' (Judicial Quarterly Review, August 2024) Category: Sentence Parties: Supreme Court of NSW (Plaintiff) KL (Defendant) Representation: Counsel: M Fernando (Defendant)