REGISTRAR OF THE COURT OF APPEAL v GILBY [1991] NSWCA 235

REGISTRAR OF THE COURT OF APPEAL v GILBY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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.