R v E Sleiman (Judgment No 29) [1999] NSWSC 858

New South Wales Supreme Court CITATION : R v E Sleiman (Judgment No 29) [1999] NSWSC 858 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70216/98 HEARING DATE(S) : 09/04/99; 09/07/99 JUDGMENT DATE : 27 August 1999

PARTIES : Regina v Emad Sleiman JUDGMENT OF : Sperling J

COUNSEL : For Crown: M L Barr For Prisoner Emad Sleiman: K G Horler AM QC SOLICITORS : For Crown: F Gray (DPP NSW) For Prisoner Emad Sleiman: Ross Hill & Associates CATCHWORDS : Contempt in the face of the court - threat to a witness - whether Pt 55, Div 2, applies where conduct not observed by trial judge. ACTS CITED : Supreme Court Rules, Pt 55 CASES CITED : European Asia Bank AG v Wentworth (1986) 5 NSWLR 445, Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669, Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682, Fraser v The Queen [1984] 3 NSWLR 212 DECISION : Guilty of contempt as charged.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SPERLING J

Friday 27 August 1999

No 70216/98 Regina v Emad Sleiman JUDGMENT NO 29 HIS HONOUR: 1 This judgment arises out of an incident which is alleged to have occurred in the course of the trial. 2 On 7 April 1999, Mr Stacey, who I would regard as having been the principal witness in the Crown case, was giving evidence. The incident is alleged to have occurred at approximately 1.15 pm on that day, when Mr Stacey was leaving the courtroom for the luncheon adjournment. Mr Stacey was a protected witness. In view of that, a procedure had been adopted whereby, at an adjournment, the jury left the courtroom first, then Mr Stacey and then Mr Sleiman. 3 It is necessary to describe certain features of the courtroom. The courtroom is large. The dock is situated in the centre of the courtroom. It is elevated. To the judge's right of the dock there is a tier of seating accommodation which is also elevated. Witnesses left the courtroom at adjournments by passing between the dock and the tier of seating. The closest seating in the tier is about five feet from the dock. Because the dock and the seating are elevated, a person passing between the dock and the seating would have his head at about the same height as a person seated in the dock or at the front of the tier of seating. 4 Mr Sleiman's counsel and his solicitor occupied the same positions at the bar table throughout the trial. The solicitor sat at the end of the bar table with his back to the dock and hard up against it. Counsel sat at the side of bar table on the judge's right and at the extreme end of that side of the bar table, with the corner of the bar table between counsel and the solicitor. Mr Sleiman was seated above them and was separated from them by the wooden front wall of the dock and a desk-like structure attached to the front of the dock. 5 Following the alleged incident, the following events occurred. A charge of contempt was formulated. A statement by Mr Stacey was tendered. A statement by a court security officer, Mr Austen, was tendered. Mr Austen was cross-examined. Mr Sleiman's solicitor gave oral evidence. Counsel made a statement from the bar table concerning the alleged incident. It was agreed that the evidence was closed. The Crown Prosecutor and counsel for Mr Sleiman made submissions. I reserved my decision. 6 The charge, as formulated by the Crown Prosecutor, was as follows: "CHARGE: On 7 April 1999 Emad Sleiman did commit a contempt in the face of the court, the particulars of which are as follows: About 1:15pm proceedings against Emad Sleiman were adjourned. The witness Adam Stacey was stood down until 9 April 1999. Adam Stacey walked from the witness box towards the back of the court at the time Emad Sleiman was in the dock. As Adam Stacey was passing Emad Sleiman, Emad Sleiman put his left hand across his face and said in a threatening manner 'you're fucked' or words very similar. At such time Emad Sleiman knew that Adam Stacey had given evidence for the prosecution in the case against him, and that Emad Sleiman knew that Adam Stacey had not yet completed his evidence". 7 The following is an extract from Mr Stacey's statement, tendered in evidence: "About 1.15pm I had completed giving evidence and I was walking from the witness box towards the back of the court. As I was passing Emad Sleiman I saw him put up his left hand across his face and he said to me 'You're fucked' or something very similar. When he said this to me I took this as being a threat. It may (sic) me feel intimated that he did this in the courtroom."