REGISTRAR OF THE COURT OF APPEAL v RAAD [1992] NSWCA 207

REGISTRAR OF THE COURT OF APPEAL vy RAAD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 9 June 1992, 9 June 1992

[1992] NSWCA 207

CONTEMPT — refusal to answer questions — plea of guilty to charges (2) of contempt — sentence — considerations relevant to held: (1) A refusal by a compellable witness to answer questions when required to do so and to provide evidence which is relevant and admissible to proceedings in a court of law amounts to a serious contempt of court. Registrar of the Court of Appeal vy Gilby (NSWCA, unreported, 20 August 1991; (1991) NSWJB 76; R v Smith (1991) 56 A Crim R 148 (CA) applied; (2) In the present case, the refusal to answer questions after an earlier statement to police which was considered by the trial judge sentencing the contemnor compounded the seriousness of the contempt; (3) Although the contemnor was to be sentenced only for the charges of contempt to which he had pleaded guilty and not for any other criminal offence, it was appropriate to take into account the circumstances in which the contempt occurred during the trial of an alleged cooffender for armed robbery; (4) Sentence of twelve months imprisonment imposed, cumulative on the expiry of the contemnor's sentence for armed robbery.

CONTEMPT — procedure — reference to Supreme Court by District Court judge (Gallen DCJ) — witness in criminal trial gives evidence but refuses to answer questions concerning cooffender — judge informs prisoner that he will be charged with contempt — held: It is highly desirable that the trial judge in such circumstances should give the witness specific warnings of the risks of punishment for contempt which follow a refusal to be sworn or to give evidence. Regina v Smith (1992) 56 A Crim R 148 referred to.

SENTENCING — contempt — whether Sentencing Act 1989 applies whether necessary to impose fixed term — whether necessary to impose additional term — held: The question of the application of the Sentencing Act 1989 to an offence of contempt should be reserved to a case where it is necessary to determine it but the procedures of the Act should be followed in any event in the instant case. Registrar of the Court of Appeal v Gilby, Court of Appeal, unreported, 20 August 1991; (1991) NSWJB 76 followed.