Regina -v- Duncan [2000] NSWSC 440

New South Wales Supreme Court

CITATION : Regina -v- Duncan [2000] NSWSC 440 FILE NUMBER(S) : SC 70207/98 HEARING DATE(S) : 02/03/00 JUDGMENT DATE : 23 May 2000

PARTIES : Regina Wendy Lynne Duncan JUDGMENT OF : Dowd J at 1

COUNSEL : Mr Dawe QC (Crown) Mr Rumore SOLICITORS : S.E. O'Connor CATCHWORDS : contempt of court - failure to answer questions - denunciation Evidence Act 1995 LEGISLATION CITED : Crimes (Sentencing Peocedure) Act 1999 Bills of Rights DPP v John Fairfax & Sons (1987) 8 NSWLR 732 The Registrar of the Court of Appeal v Gilby (unreported, 20 August 1991) CASES CITED : The Registrar of the Court of Appeal v Raad (unreported, 9 June 1992) The Registrar of the Court of Appeal (New South Wales) v Craven (No.2) (1995) 80 A Crim R 272 Smith v Regina (1991) NSWLR 1 DECISION : fixed term of two months imprisonment

- 1 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

TUESDAY 23 MAY 2000 70207/98 - REGINA v WENDY LYNNE DUNCAN

REASONS FOR SENTENCE

1 The contemnor, Wendy Duncan, in a judgment delivered by me on 2 March 2000 was found guilty of contempt of court arising out of her refusal, when a witness, in the trial of Regina v Constantine Georgiou and Bruce Malcolm Harrison, without proper cause to answer questions which were material to the matter before the Court which had been put to her. 2 A number of opportunities were provided to her in those proceedings to answer questions on paper and she has since been given opportunities to express her reasons, to express remorse or even apologise to the Court. I do not wish to canvass the reasons in that judgment and the grounds upon which I made that finding but at page 4 of my judgment I said: "I do not accept that the contemnor was being frank with the Court. She has now expressed no remorse. She has not called any evidence. She has not tendered any apology. The only matter that she has placed before the Court is a contention of duress based on her evidence and a series of newspaper articles. There is no evidence she has given that the Court can rely on that in fact she was under duress or threat in respect of the very specific questions that she was asked and I reject the contention that the defence of duress has been made out and since nothing else has been put before the Court to show why she should not be dealt with for contempt, I find on the evidence tendered before the Court that the contemnor should now be dealt with for her contempt." 3 The trial at which the contemnor was called as a defence witness concerned an incident that occurred at the Black Market Cafe on 9 November 1997 at Chippendale involving members of the Bandidos Motorcycle Club and the Rebels Motorcycle Club. The incident resulted in the death of three members of the Bandidos and one member being seriously injured. 4 The accused Bruce Malcolm Harrison and Constantine Georgiou were convicted of the murder of Michael Kulakowski, Sasha Milenkovic and Rick De Stoop and the attempted murder of Robin David. 5 A hearing in relation to these contempt proceedings occurred. Subsequent to a change of legal advice notwithstanding that the proceedings were complete I allowed a further opportunity to Mr Mark Rumore, a solicitor who appears for her today amicus curiae, to address the Court and to tender further additional evidence. The Court is grateful for the assistance provided by Mr Rumore. The fact still remains, however, that the contemnor continues not to make any apology to the Court nor to offer an appropriate explanation to the Court. 6 As I indicated at the trial, s.128 of the Evidence Act 1995 provides an opportunity for a witness to obtain a certificate so that any evidence given by that witness can not be used in evidence against them. That opportunity continued and the contemnor elected not to give evidence. 7 It is of concern to the Court that at the time of the hearing the contemnor had been subject to charges for concealing an offence and for accessory after the fact but it was clarified during the course of the hearing that the only charge that was the subject of a bill for an indictment was concealment of a serious offence. I do however understand the concern of a witness who, although only subject to the finding of a bill on one charge, might consider herself at risk in respect of another charge which had been laid against her by the police and I can not ignore the fact that even though people may give evidence which can not be used against them, the very fact of giving evidence may bring them into a circumstance where additional information provided may be used. 8 The contemnor is not obliged to incriminate herself. She is, however, if she is protecting others, which is an obvious possibility here, obliged to assist the police and to give evidence, not to refrain from so doing but I do not take that factor into account in what I am to determine here. 9 The circumstances surrounding the evidence that the contemnor gave and about which she was to be cross-examined were that subsequent to the events at the Black Market Café, on 3 February 1998, officials of the Australian Customs and Immigration Department conducted a random check on the vessel Arafura at Botany Bay which was en route to Korea via Japan. The prisoner, Georgiou, was found on the ship carrying an altered stolen passport and a false New South Wales driver's licence in the name of Johnifern Marian Ross and in excess of ten thousand dollars in cash. Georgiou, who continued to assert his correct name was Ross, was detained and after the police had been contacted to find out his true identity he was arrested. Admissions were made during the course of the trial. 10 The contemnor when asked in several questions by the learned Crown Prosecutor about where she was staying in the three month period of the incident at the cafe until the time of Georgiou's arrest. She gave evidence that she stayed for some period at her sister's house and then with two friends and that her daughter had been staying with the daughter's grandparents. The contemnor was asked a number of questions about friends she was staying with during part of that period and was asked to identify who those friends were. The contemnor deliberately refused to answer questions, as I have said, despite being given ample opportunity to do so. Her refusal and the reasons that she gave were different and varied as to why she would not answer. 11 Contempt of court arises as a common law offence for which there is no formally prescribed penalty, although the enactment of the Crimes (Sentencing Procedure) Act 1999 does prescribe for an offence for which there is no other penalty, imprisonment for 25 years. I do not however take that limit into account in assessing the question of the penalty to be imposed. 12 The only other restriction is the Bill of Rights 1688 which continues to apply in New South Wales. That statute requires generally no cruel or unusual punishment should be inflicted. There are a number of options open to the Court to punish a contemnor by way of committal to prison or fine. The committal to prison can be by way of periodic detention or fixed term or a sentence may be suspended or the Court may impose community service or home detention. The Court can also impose a term of imprisonment and suspend that imprisonment on appropriate terms and conditions. 13 Part 55 rule 13 states the Court's power but does not purport to limit or in any way exhaust that power to deal with contempt. The purpose of a penalty for contempt includes punishment and deterrence of the particular contemnor and the deterrence of other possible contemnors and the public denunciation of the relevant conduct. In that respect I refer to DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741G. 14 The Court of Appeal in The Registrar of the Court of Appeal v Gilby, unreported, 20 August 1991, held there are five factors relevant to the assessment of a penalty for contempt involving a refusal to give evidence. The five factors identified by the Court of Appeal v Gilby are, first, the seriousness of the contempt; secondly, where the contemnor was aware of the consequence of what she proposed to do; thirdly, whether the contempt was committed in the context of serious crime; fourthly, whether the contempt was motivated by fear of harm if evidence were given; and fifthly, whether the contemnor had received a benefit by indicating an intention to give evidence. 15 These factors were considered and adopted by the Court of Appeal in The Registrar of the Court of Appeal v Raad, unreported, 9 June 1992 and The Registrar of the Court of Appeal (New South Wales) v Craven (No.2) (1995) 80 A Crim R 272. 16 In Gilby the Court said at page 27: "It may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the law will be, and will be seen to be, punished."