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. I agree with the order proposed by Powell JA. Meagher JA I agree with Powell JA. Powell JA As the facts which originally gave rise to the proceedings in which this application is made, and the facts relating to the various steps which have earlier, and up until mid-December last, been taken in these proceedings are recorded in the earlier Judgments which have been delivered in this Court (Kirby P, Meagher and Powell JJA 11th November 1994, 7th December 1994, 30th June 1995; Kirby P, Mahoney and Powell JJA 19th December 1995) there seems little purpose to be served in recounting them yet again in any detail; rather, it seems to me that but a short statement of those facts, coupled with a statement of what has since occurred, is all that is called for. 2 UNREPORTED JUDGMENTS On 11th November 1994, this Court, on the application of the Claimant, found the Opponent guilty of three charges of contempt arising out of his refusal, when a witness in the trial of one Y in the District Court, without proper cause to answer questions, which were material to the matter then before the District Court, which had been put to him. On 30th June 1995, this Court, by majority ordered that C be required to pay a fine of $10,000.00 (Kirby P and Powell JA) and that he be sentenced to a term of six months imprisonment to commence on 30th December 1995 (Meagher and Powell JJA), that day being the day immediately following the day on which the Opponent would complete a sentence of imprisonment which had earlier been imposed on him by Abadee J in respect of certain offences under the Companies (New South Wales) Code to which the Opponent had pleaded guilty. It should be noted that, although he did not join in the view that the sentence of imprisonment should commence on 30th December 1995, Kirby P was nonetheless of the view that a sentence of six months imprisonment was appropriate, the sentence, in his view, to be suspended upon the Opponent giving certain undertakings which were set out in his judgment. It should further be noted that, although not being prepared to join Kirby P in the course proposed by him, I was prepared to leave open the question whether - but without any indication of the likely outcome - in the event that the Opponent later "(fulfilled) his duty to give evidence", the Court could, or would, on motion by the Opponent, discharge him from custody. The following observations ought now to be made as to the various approaches then taken by the members of the Court: 1. Despite the fact that the Opponent had claimed (inter alia) that one of the reasons for his refusal to give evidence at Y's trial was his "fear" of Y, all of the members of the Court were of the view, first, that the Opponent's conduct was such as to merit the imposition of a penalty, and, second, that the penalty should include a sentence of imprisonment. That such an approach was open to the Court is clear, for the Opponent's conduct constituted criminal contempt, which was a misdemeanour at common law - rather than civil contempt, or a contempt in procedure (see for example, Australian Consolidated Press Ltd v Morgan!) and thus punishable by fine, or imprisonment or both (R v Castro (Onslow and Whalley's Case)2), it being noted that, where, in such a case, a sentence of imprisonment is imposed, it must be for a fixed term (see Re Slack3; Attorney-General v James*; Young v Registrar. Court of Appeal (No 3)5; Witham v Holloway®). That the approach adopted by the Court was consistent with authority - perhaps even a little lenient - is, I suggest, demonstrated by such recent cases as Parsons v R7, where a sentence of two years and six months for a refusal to be sworn was not considered excessive, and R v Montgomery' where it was held, that except in wholly exceptional circumstances, a refusal to be sworn justified an immediate custodial sentence, and, where a sentence of three months was described as moderate, and a sentence of six months as not being 1. (1965) 112 CLR 483, 489 per Barwick CJ, 494 per Windeyer J 2. (1873) LR 9 QB 227 per Cockburn CJ 3. (1874) 4 VLR (L) 454 4. [1962] 2 QB 637, 640 per Lord Parker CJ 5. (1993) 32 NSWLR 262, 292 per Powell JA 6. (1995) 69 ALJR 847, 855 per McHugh J 7. (1993) 115 FLR 270 8. [1995] 2 AER 28) URJ C v REGISTRAR COURT OF APPEAL (Powell JA) 3 excessive. Finally, it should be noted that, although the Opponent sought special leave to appeal to the High Court from the Orders made on 30th June 1995 upon the ground (inter alia) that the sentence was excessive, leave was refused by the High Court on 23rd November 1955. 2. The reasons why, without giving any indication of the likely outcome, I was prepared to leave open the question whether, in the event that the Opponent later "(fulfilled) his duty to give evidence", the Court could, or would, on motion by the Opponent, discharge him from custody, were: a. as I sought to point out in Young v Registrar. Court of Appeal (No 3)? the old view was that, at least in the case of criminal contempt, once the order for committal was made, the Court was functus officio and, apart from an appeal, the contemnor's remedy lay in an application for the exercise of the Royal Prerogative (R v Slack!; Attorney-General v James!!); b. although that position has since been changed by statute (Contempt of Court Act 1981 (UK) s14), in the United Kingdom, for the reasons which I set out in Young v Registrar. Court of Appeal!2, I doubted whether, as had been suggested by Kirby P in that case, the provisions of s53 of the Sentencing Act 1989, in conjunction with the provisions of SCR Pt55 R14, would permit the Court to discharge the Opponent before the expiration of the terms for which he was then about to commit; c. when the Court exercises its powers to deal with criminal contempt, it does so primarily for the purposes of punishing the contemnor and, to a limited degree, to deter others who might otherwise be tempted to engage in like conduct; by contrast, when the Court exercises its powers to deal with a civil contempt, or a contempt in procedure, by imposing - as it commonly does in a case not involving contumacy - an indeterminate sentence, it does so for the purpose of compelling the contemnor to accord to the successful party the relief to which the Court has held that party entitled. The distinction is of importance, for, in the case of criminal contempt, the Court's purpose is not fulfilled until the punishment imposed for the crime has been undergone, and there is no question of the contempt being "purged"; whereas, in the case of a civil contempt, or a contempt in procedure, the Court's purpose is fulfilled at that time when the contemnor accords to the successful party the relief to which he has been held entitled, so that, the contempt having been "purged", no purpose is served by further detaining the contemnor in prison; d. but even if the provisions of s53 of the Sentencing Act 1989, in conjunction with the provisions of SCR Pt55 R14 would permit the Court to discharge the Opponent before the expiration of the term for which he was then about to be committed, I was by no means persuaded that the mere fact that the Opponent might later give evidence against Y on his retrial would be sufficient to warrant his discharge. After the delivery of the Court's Judgment on 30th June 1995, there occurred a number of events which might be shortly noted, they being: 1. on 21st July 1995 Cooper DCJ, on the application of Y, vacated the hearing date - 4th September 1995 - which had earlier been fixed for the retrial of Y and directed that a fresh date be fixed following the delivery by the High Court of its 9. (ibid) 10. (supra) 11. (supra) 12. (ibid) 4 UNREPORTED JUDGMENTS Judgment in R v Byrnes: R v Hoopwood; although Judgment in those matters was delivered in August 199513, it would seem unlikely that the retrial will now occur until October of this year; 2. in late September 1995, Simpson J tentatively fixed for hearing, two further matters - one conveniently known as the "Chelsea property" matter, and the other conveniently known as the "1988 Accounts" matter involving charges against Y, the former being fixed for 6th November 1995, and the latter being fixed for 29th January 1996; 3. in early November 1995, the Opponent provided to the Commonwealth Director of Public Prosecutions a statement as to his knowledge of the Chelsea property matter for use at Y's trial; 4. on 15th November 1995 Y pleaded guilty to the 2 counts of the indictment in the Chelsea property matter, following which, on 13th December 1995, Barr AJ sentenced Y to a minimum term of 1 year 2 months to commence on 12th July 1997 - the date of expiration of the minimum term which Y is serving in respect of yet another matter for which he has been convicted and an additional term of 1 year 4 months. After Y had pleaded guilty to the counts in the indictment in the Chelsea property matter, there was filed on behalf of the Opponent a Notice of Motion in which were sought the following (inter alia) Orders: "1. Leave be granted to vary the order of the Court pursuant to Pt55 R14 of the Supreme Court Act (sic) 2. An order that the sentence imposed under O.2 of the Court's Orders given on 30 June 1995 be discharged; or 3. In the alternative to O.2 above, an order that the sentence be suspended until: (i) Two months after the commencement of the trial of [Y]; or (ii) In the event that the [Claimant] is called as a witness by the prosecuting authorities in the trial Of M. after the [Claimant] has been called to give evidence at such trial" which Notice of Motion came before the Court on 13th December 1995. In the Affidavit which he swore in support of that Notice of Motion, the Opponent deposed (inter alia): 1. that he then realised and accepted that "(he had) committed a contempt in the face of the District Court by failing to answer questions..." - this, of course, was not the offence with which he had been charged, and of which he had been found guilty; 2. that, by reason of the events which had happened since he had last given evidence in this Court, he was "a markedly different person"; 3. that he had genuine fears for his safety in gaol by reason of his having made statements in the past; 4. that he feared that, if it became known that he was a "grass" - seemingly prison jargon for an informer - he would be at greater risk of being subjected to violence; 5. that he had been a model prisoner; 6. that, when requested, he had voluntarily provided to the prosecuting authorities a statement in relation to the Chelsea property matter, and had been prepared to give evidence in that matter had it proceeded. 13. 69 ALJR 710; 130 ALR 529 URJ C v REGISTRAR COURT OF APPEAL (Powell JA) 5 The burden of the submissions of the Opponent's counsel on the hearing were, in short, that the Court could then be satisfied that the Opponent would, in the future, continue fully to co-operate with the authorities, and that, in the circumstances, further custodial punishment beyond that which had been imposed by Abadee J was unnecessary. At that time, the Solicitor-General, who appeared for the Registrar, while advancing no submissions as to the question of punishment of the Opponent, submitted that it was not open to the Court to suspend, and, if appropriate later recommence or reimpose the sentence which had been imposed by the Court on 30th June 1995 (see, for example Whan v McConaghy!4; Parker v Director of Public Prosecutions!5). In the event, the Court, when delivering its Judgment on 19th December 1995 - that is, during the Court's long vacation - proceeded upon the basis - as to which what I have written above will make clear I have reservations - that the Court had power to discharge the Opponent, the question being whether, in all the circumstances, it should exercise that power in the Opponent's favour. Having proceeded on that basis, and having considered the matters relied upon by the Opponent, the Court dismissed the motion upon the basis that, it having been the clear intention of the Court in June 1995 that the Opponent should serve a period of imprisonment for the serious contempt of court which had been found against him, the motion was premature. Despite this, on 24th January 1996, there was filed on behalf of the Opponent a further Notice of Motion, made returnable on 31st January 1996, in which were sought orders that: "1. Leave be granted to vary the Order of the Court pursuant to Pt44 R14 of the Supreme Court Rules; 2. The sentence imposed under O.2 of the Court's Orders given on 30 June 1995 be discharged." Thereafter, on 31st January 1996, there were filed two Affidavits - one sworn by the Opponent's solicitor, and the other sworn by a solicitor on the staff of the Commonwealth Director of Public Prosecutions - which deposed to the following (inter alia) matters: 1. that, on 21 December 1995 Barr AJ, on the application for the Commonwealth Director of Public Prosecutions, vacated the hearing date - 29th January 1996 - which had earlier been fixed for Y's trial in relation to the 1988 Accounts matter, and adjourned the trial to a date to be fixed after the Court of Criminal Appeal had delivered its judgment on Y's appeal against his conviction in respect of yet another matter - reports appearing in the press of recent days would suggest that Y has since withdrawn his appeal in the latter matter before the delivery of judgment; 2. it was improbable that the hearing of the 1988 Accounts matter could be fixed for a date earlier than the end of July of this year; 3. that, on 22nd January 1996, the Opponent supplied to the Commonwealth Director of Public Prosecutions a statement of the evidence which he would be prepared to give on the trial of Y in respect of the 1988 Accounts matter. No Affidavit sworn by the Opponent had been filed by 31st January 1996. When the Notice of Motion was called on for hearing on 31st January 1996, the Opponent's counsel sought an adjournment upon the basis that, although there had been made a request for the Opponent to be brought to Court from the 14. (1984) 153 CLR 631 15. (1992) 28 NSWLR 282, 298 6 UNREPORTED JUDGMENTS country correctional centre where he was detained, the Department of Corrective Services had been unable to comply with that request in the time available. The hearing of the Notice of Motion was accordingly adjourned until 9th February 1996. When the Notice of Motion was called on for hearing on 9th February 1996, the Court was informed that, notwithstanding the basis upon which the earlier adjournment had been granted, the Opponent was not present in the Court. At the same time there was handed to the Court a facsimile copy of an Affidavit said to have been sworn by the Opponent on 7th February 1996, and said to deal (inter alia) with the Opponent's reasons for not attending Court. In that Affidavit, the Opponent deposed (inter alia) as follows: "20. I was advised on the previous occasion that I was entitled to be present for the hearing of my application and although I was not required for cross-examination I determined that I would exercise that right in order to demonstrate my unreserved offer of being available for cross-examination. Because my fears of being subjected to violence have greatly increased, particularly during the transportation of me to Sydney and during the period of time I will be held in the remand cells for the week preceding the hearing of this application, I waive my right to be present at the hearing of this application. If in the event I am required to be cross-examined, I recognise and accept that I will have to either withdraw this application or alternatively make myself available at the Court's convenience." Although the Solicitor-General indicated that he did not wish to cross-examine the Opponent on his Affidavit, I indicated that, so far as I was concerned, in the light of what had earlier occurred - both prior to the hearing in December 1995 and on 31st January 1996 - I found it difficult to accept the Opponent's assertions in his Affidavit, and that I, for one, would wish to cross-examine him on his Affidavit. This notwithstanding, and notwithstanding the concluding sentence of Para20 of the Opponent's Affidavit, the Opponent's counsel sought to proceed with the motion, a fact which, to me, at least, only served to confirm that the assurances and undertakings which the Opponent continues to offer to the Court are worthless. In his Affidavit, the Opponent has set out the various events which have occurred since 30th June 1995, and upon which he relies to establish that there has been a change of circumstances which, as he would have it, justifies his now being released from gaol. It is, however, to be noted that, save for the adjournment of Y's trial in respect of the 1988 Accounts matter, and the provision by the Opponent to the prosecuting authorities of an expanded version of his earlier induced statement relating to the 1988 Accounts matter, all the events upon which the Opponent now seeks to rely were known to the Court in December 1995. In his Affidavit, the Opponent concluded (inter alia): "19. As a consequence of the altered circumstances referred to above, I have now lost all opportunity to expiate my contempt by fulfilling my duty to give evidence orally in any M trial before my sentence expires on 30 June 1996. I ask this Honourable Court to view my actions in providing the two written statements with respect to the 'Chelsea Property' and '1988 Accounts' indictments as a bona fide attempt by me to fulfil by duty to give evidence to the very best of my ability given circumstances. URJ C v REGISTRAR COURT OF APPEAL (Powell JA) 7 21. I do not bring this application in a frantic attempt to avoid serving the remainder of my sentence for the contempt I committed. In total I have now served some seven months of the incarceration and I am somewhat [resigned] to serving the remainder of my contempt sentence. Nevertheless, by reason of the judgment of the Court given on 30 June 1996 [sic: 1995] and my understanding of those reasons, the opportunity afforded to me in that judgment presented itself as a glimmer of hope of being able to demonstrate how truly sorry I was by fulfilling my duty in giving evidence in future [Y] trials. 22. By reason of the opportunity afforded to me, I have attempted to demonstrate my duty to give evidence orally in future M trials on two occasions since my sentence for contempt was imposed. On both occasions my willingness to give evidence has been thwarted by events beyond my control and I have only been able to demonstrate my willingness to fulfil my duty through the provision of written statements. 23. My reason for bringing this application so soon after my sentence for contempt commenced is twofold: (i) As deponed earlier, all opportunity to fulfil my duty to giving evidence prior to the expiration of my sentence on 30 June 1995 is now lost. (ii) I was advised by my solicitor and believe that because His Honour Mr Justice Kirby's appointment to the High Court of Australia took effect on 6 February 1996, that it was more appropriate to have this application early in the new Law Term so as to ensure it was heard before the original Court who imposed my sentence. 24. I am desirous that my action in providing the two statements indictment thus far to the prosecuting authorities, and my unreserved offer to provide assistance in the future, be viewed by this Court as a measure of my contrition, regret and remorse for the contempt I committed. 25. I repeat my unreserved apology for the contempt I committed and ask this Court to once again accept that I am truly sorry for the contempt I committed. I repeat my assurance made on 13 December last my earlier contempt will never be repeated." Despite the fact that, in these Paragraphs, the Opponent seems now to assert that he appreciates, and apologises for, the serious nature of the contempt of which he was found guilty, it is clear that, even now, he still does not appreciate that it was the intention of the majority of the Court that, at the conclusion of the sentence imposed on him by Abadee J, he should then serve a sentence of imprisonment which the Court thought commensurate with the serious nature of the offence. It is, I believe, also clear that the Opponent still does not appreciate what the Court wrote towards the end of its judgment of 19th December 1995: "Tt is true that, at some future time, before the expiry of the entire sentence (but after service of an appropriate portion of it) the claimant might move the Court for relief. In doing so he would be entitled to rely upon the matters placed before the Court in the present application and in an earlier motion dismissed as premature. Several of the considerations referred to in his affidavit would then be relevant to such an application. Most importantly, were the trial of Y to proceed early in the new Term in 1996 and were the claimant to give evidence in that trial, this could enliven the kind of application envisaged by Powell JA in his reasons of 30 June 1995. That is not to say that the application must depend upon the chance consideration (outside the claimant's control) of whether a trial of Y proceeds and whether the claimant is called as a witness in such trial. But such events would certainly allow the claimant to demonstrate, in a way going beyond 8 UNREPORTED JUDGMENTS the words of his affidavits, the fact that he has learned the lesson which the custodial sentence is intended to teach and has demonstrated that fact to the community generally to which also the message of deterrence is addressed." Despite my continuing reservations as to the existence of any power in the Court to discharge, prior to the completion of his sentence, one who has been found guilty of, and sentenced for, a criminal contempt, I am, in the present case, prepared to proceed upon the basis that such a power exists. I do so since it seems to me that, even given the existence of such a power, the Opponent has failed to demonstrate that, in all the circumstances, the power ought to be exercised in his favour. The fact that the Notice of Motion was filed but a little more than 3 weeks after the commencement of the sentence imposed by this Court, in my view, makes it clear that, contrary to the Opponents' assertion in Para21 of his Affidavit, the current application is yet another frantic effort by a truly desperate man to avoid his well merited punishment. I would propose that the application be dismissed with costs. Application dismissed with costs. Counsel for the applicant/opponent: CJ Stevens QC and Ms KE Burke Solicitors for the applicant/opponent: Gillis Delaney Brown Counsel for the respondent/claimant: K Mason QC, S-G and NJ Williams Solicitors for the respondent/claimant: IV Knight, Crown Solicitor