C v REGISTRAR COURT OF APPEAL [1996] NSWCA 85

C v REGISTRAR COURT OF APPEAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, MEAGHER and POWELL JJA 9 February 1996, 10 May 1996

[1996] NSWCA 85

Contempt — Criminal — Punishment — By imprisonment — Early discharge — Whether power to order — Discretion of Court — Considerations — Alleged new circumstances — Alleged contrition of contemnor.

Mahoney P The facts are detailed in the judgment of Powell JA, which I have had the opportunity of reading.

The offences for which the applicant has been imprisoned are serious offences. At a trial of a person for a serious crime, he deliberately refused to answer questions put to him. He persisted in that refusal at all times then relevant and notwithstanding that the possible consequence of what he was doing was imprisonment for contempt of court. Substantial penalties were imposed on him by this Court (Kirby P, Meagher and Powell JJA). Those penalties were no doubt intended to mark the seriousness of what he had done.

It is proper that the seriousness of what the applicant did be properly understood. It is the duty of members of the community to give evidence when properly called before a court to do so. Refusal to do so may have serious consequences in the particular case: an innocent person may be convicted or a guilty one may escape punishment. Equally important, it may be thought in the community that the proper course of justice may be ignored or impeded; public confidence in the due administration of the law may be destroyed.

That does not mean that the punishment for such offences should be excessive. Nor does it mean that the term of the punishment for them, once imposed, may be avoided merely by the applicant doing what originally he should have done.

The Court has heard the present application in the circumstances to which Powell JA has referred. I have considered carefully the reasons advanced for reduction of the period of imprisonment ordered. Meagher and Powell JJA are of the opinion that no variation should be made in that period. My mind has wavered upon the matter but, in the end, I agree that the facts do not warrant that the period of imprisonment be reduced.