New South Wales Supreme Court CITATION : Regina v Duncan [2000] NSWSC 891 FILE NUMBER(S) : SC 71801/00 HEARING DATE(S) : 25/5/00 JUDGMENT DATE : 26 May 2000 PARTIES : Regina v Wendy Lynne Duncan JUDGMENT OF : O'Keefe J COUNSEL : M. Rumore - Applicant S. Harris - (Crown) Solicitor for Applicant: Colin Biggers & Paisley Sydney SOLICITORS : Solictor for Crown: S E O'Connor Solicitor for DPP Sydney CATCHWORDS : Contempt - Appeal - Bail - Relationship between Bail Act and Common Law - Common Law preserved - Principles applicable to grant of bail for contempt after sentence imposed LEGISLATION CITED : Bail Act, 1978 Ss 30AA, 32, 62, 64 CASES CITED : Smith v The Queen (1991-1992) 25 NSWLR 1 DECISION : Bail refused. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'KEEFE J FRIDAY 26 MAY 2000 71801/00 - REGINA v WENDY LYNNE DUNCAN JUDGMENT - On application for bail 1 HIS HONOUR: On 2 March 2000 the applicant, Wendy Lynne Duncan, was convicted of contempt of this court and was sentenced for that contempt on 23 May 2000. Her sentence was to a period of imprisonment for two months. 2 The applicant, who is aged thirty-one, was a witness in a murder trial involving her then de facto, now de jure, husband, Constantine Giorgiou. The trial arose out of the killing of three persons and the serious injuring of another at the Blackmarket Cafe on 9 November 1997 when there was fracas between members of the Bandido Motor Cycle Club and the Rebels Motor Cycle Club. As a result of those events Mr Giorgiou and a Mr Harrison were convicted of murder. Mr Giorgiou was sentenced to imprisonment for a minimum term of twenty- eight and half years. Thus the crimes which were being prosecuted at the trial in which the applicant was called as a witness were most serious. 3 At the trial the applicant was asked a number of relevant questions by the trial judge and by the Crown Prosecutor. She deliberately and persistently refused to answer those questions, notwithstanding several attempts on the part of the trial judge to convince her of the possible consequences should she fail to answer. 4 Worse than that, at the proceedings for contempt before him that were the subject of his judgment of 2 March 2000, the trial judge found that she gave three different reasons which were not consistent, one with the others, for refusing to answer the questions. By her evidence Dowd J, who heard the contempt proceedings and sentenced her, was satisfied that she was not frank with the Court. Furthermore, he made it clear: "she has now expressed no remorse, she has not tendered any apology" (p4). The same remains true today, as it remained true up to the time that Dowd J imposed the sentence of two months imprisonment on the applicant on 23 May 2000. 5 Punishment for contempt in the face of the Court has a symbolic value beyond the imposition on the person responsible for the contempt. It is intended to uphold the authority of the Court and the proper administration of justice. 6 What the applicant did constituted a serious interference with the administration of justice. It was done in a conscious and calculated way and was the subject of untruths about the reasons why it was done. That is precisely the situation that faced the Court in Smith v Queen (1991-1992) 25 NSWLR 1 at 23 per Mahoney JA. In that case the learned President, Kirby P, dissented. He took the view that the fine of $60,000 that had been imposed upon the prisoner was excessive. The fine had been imposed because the prisoner was already serving a life sentence and the majority of the Court took the view that it would be a waste of time and ineffectual to impose an additional sentence of imprisonment. 7 Notwithstanding his dissent as to the outcome, Kirby P recognised that wilful and persistent refusal to answer questions that were relevant in a trial concerning serious crimes generally called for a sentence of imprisonment. Indeed, in that case, he propose a concurrent term of imprisonment rather than a fine. 8 Meagher JA, having read the learned President's views about the fine of $60,000, said: 'I've read in draft the judgement of Kirby P, I disagree with it. Strongly. Mr Smith committed the most blatant contempt of court.' (supra at 24) 9 The words in the last sentence of the above extract are, in my view, applicable to the facts before me. 10 There has been no remorse. There has been no apology. There has been no explanation. In terms of the authorities, what was faced by Dowd J when he imposed his sentence, was a contumelious disregard of the authority and function of the Court. 11 I recite these facts because, in my view, as with ordinary criminal cases so too with contempt, it is relevant in relation to bail for the judge hearing the application to form a view as to whether or not a custodial sentence is appropriate or likely. In my view such a sentence is not only appropriate, but also very likely. 12 There are other considerations. The relevant law has, for the purposes of this application, been agreed between the Crown and counsel for the applicant, to be the common law, with the discretions that that law carries with it. It is a difficult question whether that is a correct view of the law or not: However, the matter has not been argued. 13 Section 62 of the Bail Act 1978 (the Act) provides: 'Any power or duty that would, but for this Act, exist apart from statute to grant bail for an accused person in or in connection with criminal proceedings is abolished'. 14 As a result of that, but for the section to which I am about to refer, the Bail Act would be a sole and exclusive code in relation to the grant of bail in all offences, which by definition in the Bail Act (s 4) include alleged offences. However, s 64 of the Bail Act provides: "(1) Nothing in this Act affects any power or duty that a court, tribunal or person has to grant bail or to grant relief in the nature of bail in connection with any contempt or alleged contempt. … (3) Any power or duty to which subs (1) applies is additional to any power or duty that a court, tribunal or person may have under this Act in relation to any contempt or alleged contempt" 15 The effect of s 64 therefore is to incorporate (at least to the extent that a contrary intention is not to be inferred from the form of the Act), the provisions of the Bail Act and to superimpose them upon the preserved common law powers and duties in relation to contempt. 16 S 32 of the Bail Act provides that in making a determination as to the grant of bail to an accused person, relevantly the Court is required to take into consideration certain matters and that are set out in the section, and "the following matters only". 17 Each of ss 32(1)(a), 32(1)(b) and 32(1)(c) of the Bail Act prescribes the considerations that the court may take into account, introducing them by the words 'having regard only to'. Those words, in my opinion, indicate a contrary intention in relation to the application of s 32 to applications for bail concerning contempt. You just cannot have the common law powers and discretions which, whilst they may be exercised in relation to matters similar to those in s 32, are exercised having regard to those matters in totality rather than as related to the proscribing circumstances defined in each of the subs 32(1)(a), (1)(b) and (1)(c). 18 For those reasons, I do not think that s 32 governs the present case. However, in considering the application of the common law principles it would, in my opinion, be appropriate by way of analogy to take into account any matters that are referred to in s 32 that would not fall within the ambit of matters for consideration in relation to the common law discretion. I cannot in this case think of what they may be, but there may be such. 19 S 30AA of the Bail Act proscribes the power of the court to grant bail after certain convictions 'unless it is established that special or exceptional circumstances exist justifying the grant of bail'. However that section, limiting as it does the power of the court to grant bail, refers to the situation where there is an appeal pending against "a conviction on indictment" or " sentence passed on conviction on indictment". There was no indictment in respect of the present matter, so s 30AA does not have any direct application. 20 However s 30AA of the Bail Act is a statutory reflection of the disinclination of the courts to grant bail even under the common law a person has been convicted and sentenced. So although s 30AA has no direct or immediate application, it is appropriate to have regard to the disinclination of the courts to which I have referred. 21 It is not normal that people who have been convicted and sentenced to imprisonment in a superior court should, merely by application to the same court, obtain bail pending the appeal unless there are circumstances which make it an unusual case in some way, that as a consequence bespeak the grant of bail. The power is there, but the discretion is generally exercised in a way adverse to an applicant for bail. 22 In favour of the present application, Mr Rumore, who has argued the matter very thoroughly and with his usual skill and attention to detail, has advanced the following: First the situation of the applicant's eleven year old daughter by an earlier relationship; second the state of her health; third that in the absence of prior offences and having regard to her history she is likely to appear at her trial; fourth that if she not be granted bail it could well be that she will have served her sentence by the time her appeal comes on for hearing. 23 I will deal with these seriatim. 24 As to her daughter: first it should be noted that her daughter has not lived with her since late 1997. That is by choice. It is not suggested that the daughter is other than well cared for by her grandparents in a loving environment, an environment which she likes, and I do not think that there would be any stress or adverse response on the part of the applicant if her daughter were to continue in the domestic situation in which she has now been for more than two and half years, perhaps rising three years. This is more so since, as is quite apparent from the evidence before me, even prior to 1997, the daughter spent considerable periods from time to time with her paternal grandparents. I think therefore this first ground does not prevail. 25 The health of the applicant: the applicant is said to suffer from asthma, migraine and depression. Nothing specific was raised in relation to her asthma. In relation to her migraine it is said to be mainly stress related, but perhaps in part dietary. As to the dietary element that is fairly easily dealt with. As to the stress, her normal approach is to take a prescribed drug or Panadol Forte. There has been, so she says, some difficulty in obtaining the prescribed drug in custody however since she has only been in custody since 23 May I think that any intermission in its availability is not surprising. The prison system has appropriate means of ensuring the health of those who are detained, and there are common law duties that back that up, as well as statutory provisions. I think it unlikely that here migraine will remain untreated. 26 As far as depression is concerned, it is not endogenous. It is undoubtedly, as the applicant stated, a response to her situation. That is real. She is subject to a term of imprisonment and faces serious charges in respect of which, if she were to be convicted, she could expect substantial custodial sentences. They are real, present and continuing causes for her depression. Like her migraine, her depression is able to be treated to at least a limited extent, although her previous experience when not in custody was that such treatment was ineffective in the main. So custody will not make any difference to that. That ground fails. 27 The third consideration was that she had no prior offences and was likely to appear. I think this is correct for a number of reasons. First, her absence of convictions and her repeated appearance previously, plus the fact that she had familial ties particularly with Mr Giorgiou, who is now in prison for a very long period, suggest that she will not leave the Sydney area, that she will visit him, visit her daughter. However, the mere fact that somebody on bail will appear whilst a factor is only one factor and not decisive. 28 The time interval until her appeal is heard is a matter that has exercised my mind. However it is a consequence of what is a relatively short sentence from a judge who was, in my view, quite lenient in the way in which he dealt with the applicant. In all cases that involve short sentences, there is a real prospect that the time interval involved in getting the appeal on may mean that the sentence will have been served. I do not think that there is anything unusual about that. It is a consequence of a short sentence. Whether one looks at the analogy s 30AA, or the general common law approach, I do not think that this factor prevails either. 29 There is yet another consideration, that is that the trial judge, Dowd J, although not asked to do so had the power to grant bail. He did not do so, and I think it would be, in a case such as this certainly, inappropriate to go behind the sentence imposed by the trial judge and grant bail. 30 For those reasons I am of opinion that bail should be refused. Bail is refused. 38 I direct that the Registry expedite the hearing of the applicant's appeal and I recommend that that appeal be heard as expeditiously as possible. ********** Last Modified: 12/07/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.