The Hon Mr Acting Justice Morris David Ireland v Renee Ann Russell [2001] NSWSC 468

New South Wales Supreme Court

CITATION : The Hon Mr Acting Justice Morris David Ireland v Renee Ann Russell [2001] NSWSC 468 FILE NUMBER(S) : SC Contempt Proceedings in trials of matters 70012/00; 70201/00; 70202/00; 70066/00; 70067/00 HEARING DATE(S) : 26/02/2001, 28/02/2001, 17/05/2001, 25/05/2001 JUDGMENT DATE : 6 June 2001

PARTIES : The Hon Mr Acting Justice Morris David Ireland Renee Ann Russell - Contemnor JUDGMENT OF : Ireland AJ

COUNSEL : Mr R Cogswell SC as amicus curiae Mr P Thraves for the Contemnor SOLICITORS : Mr D Norris, Crown Solicitor Legal Aid Commission of New South Wales CATCHWORDS : Contempt in the face of the Court LEGISLATION CITED : Supreme Court Rules 1970 Crimes (Sentencing Procedure) Act 1999 Smith v The Queen (1991) 25 NSWLR 1 CASES CITED : DPP v Chidiac (1991) 25 NSWLR 372 Wood v Staunton Number 5 1995 86 ACR 183 DECISION : Good behaviour bond pursuant to s.9 of the Crimes (Sentencing Procedure) Act 1999

1 The contemnor Renee Ann Russell has pleaded guilty to a charge of contempt in the face of the Court. She is for sentence on that charge today. 2 The charge was laid against the contemnor during the course of the trial at Newcastle of Dean William Hyland, Robert Owen Parry, Barry James Yates, Bradley Thomas Powick and Darren Russell Wall pursuant to Pt 55 rule 3 of the Supreme Court Rules 1970. The history to these proceedings may be briefly outlined as follows. 3 On the night of Friday 2 October 1998 and in the early hours of Saturday 3 October 1998, a dwelling house at 4 Levitt Street Wyong was entered by three masked men wearing dark clothes, their faces being obscured by balaclavas. The three invaders assaulted in various ways the occupants of the house in an endeavour to obtain money believed by them to be kept in the premises. Being unable to effect their purpose the offenders shot to death one of the occupants in an execution style murder. 4 The three invaders, Hyland, Parry and Yates, endeavoured to escape in a Ford Falcon sedan registered number NUR.593 (the Ford Falcon) which was driven by the offender Powick. This Ford Falcon sedan was, at the material time, registered in the name of the offender Darren Russell Wall, and was said to be owned by him and his de facto wife, the contemnor Renee Ann Russell. The Ford Falcon had been made available by Wall and the contemnor to the four other offenders on the afternoon of 2 October 1998, that is to say prior to its being used in the home invasion and murder. 5 The contemnor and Wall endeavoured to establish a false alibi, alleging in statements to police that they, together with others, had been away camping from Friday the 2nd to Sunday the 4th of October, during which period the Ford Falcon used in the murder had been stolen. These false statements were made on Sunday 4 October 1998. 6 Shortly prior to 16 September 1999 the contemnor contacted Detective Sergeant Wrice, the Officer in Charge of the murder investigation, and indicated to him that she wished to make a further statement disclosing, inter alia, the true facts concerning the making available of the Ford Falcon to the offenders and the identification of three of the persons who drove off in the car and who were known to her. 7 The contemnor's change of attitude, it transpired, was generated by a relationship which had developed between the offender Wall and the contemnor's sister. 8 On 11 October 1999 the contemnor attended an identification parade in which she identified the fourth occupant of the Ford Falcon, who is the offender Parry. On that date the contemnor made a statement to police confirming her identification of Parry. The identification parade was also the subject of a videotape in which the persons in the parade, as well as the contemnor, are featured. 9 The significant evidence which is contained in the contemnor's statements of 16 September 1999 and 11 October 1999 and in the videotape of the identification parade, on the issue of the identification of the three offenders Hyland, Parry and Yates, was sought to be led from the contemnor during the trial at Newcastle on 22 February 2001. Upon being called the contemnor stated that she did not wish to give evidence. 10 Following a voir dire examination orders were made the effect of which was to excuse the contemnor from giving evidence against the offender Wall, but compelling her to give evidence against the other four offenders. 11 After answering a number of questions the contemnor refused to answer any further questions despite being warned as to the likely consequences of her refusal. The contemnor's manner became aggressive, including her twice repeated challenge to the Court to "charge me". The contemnor was duly charged and steps were taken to secure legal representation for her. She was remanded in custody, bail was refused. 12 On 26 February 2001 the contemnor, with the benefit of representation by Mr Thraves of counsel, came before the Court to purge her contempt. She apologised to the Court for her conduct and undertook to give evidence, and with a view to minimising the stress she was under, as requested in the medical report from the contemnor's treating doctor, arrangements were made for this evidence to be given by video link from within the precincts of the Court. 13 On 27 and 28 February 2001 the contemnor gave evidence. The manner in which her evidence was given made it plain that when being asked questions by the Crown she was not genuine in her recall of events, nor in her efforts to remember significant matters about which she had made statements and given confirmatory evidence on prior occasions, in particular before the New south Wales Crime Commission and at the committal proceedings. 14 The manner of the contemnor in responding to questions asked of her by the Crown, and the language she used, was intemperate, abusive and highly offensive. Her inappropriate conduct was brought to her attention on a number of occasions in the most direct terms, but was nevertheless persisted in. 15 By contrast, when questioned by counsel for the defence the contemnor's demeanour, her manner and her memory underwent a metamorphosis which cast light upon the integrity of the memory loss she earlier had claimed. Having given evidence on 28 February 2001 the contemnor was granted bail. It is to be noted that in the period between the committal hearing and the commencement of the trial the contemnor and the offender Wall had become reconciled. 16 It is an obvious contempt in the face of the Court where a person who is properly before the Court refuses to be sworn or to give evidence: Smith v The Queen (1991) 25 NSWLR 1; DPP v Chidiac (1991) 25 NSWLR 372. Notwithstanding the obvious unsatisfactory nature of the evidence and the manner in which it was given by the contemnor, her original refusal to give evidence was ameliorated by her giving evidence which at least enabled the jury to determine what of it was to be accepted and what rejected. I take this into account in the contemnor's favour to a significant degree. 17 On 17 May 2001 the hearing of the contempt proceedings resumed, with the assistance of Mr Cogswell of Senior Counsel acting as amicus curiae. The contemnor, during the course of being questioned by Mr Cogswell, lost her temper and became aggressive. Mr Thraves successfully sought an adjournment on the basis that his client had been away from her home at Newcastle for two days without benefit of her prescribed anxiety controlling medication. 18 On 25 May 2001 the hearing resumed. At that time no plea had been entered. Mr Thraves, on instructions, entered a plea of guilty. Since at no time has it been suggested that the contemnor proposed to defend the charge, I am content to consider the guilty plea then entered as being an early plea. 19 The evidence given by the contemnor on 25 May 2001 continues to generate in the Court feelings of disquiet. An example of this is that notwithstanding her undertaking to again give evidence should there for any reason be a retrial, the contemnor persists in denying the veracity of her identification made at the identification parade, which she describes in a manner which is in direct conflict with what is to be seen on the videotape of that event. (Exhibit CE at trial) In saying this I nevertheless recognise that as to the giving of false evidence the court has other remedies. See Wood v Staunton Number 5 1995 86 ACR 183. 20 In mitigation of sentence I take cognizance of the following: the contemnor was at the time of the trial seven months pregnant with her third child; she is presently aged 21 years and was at the time of giving evidence suffering from health problems requiring medication; naturally she was apprehensive as to her safety and that of her children in the absence of her de facto husband who was in custody; her house had been broken into on two occasions; she had tried to block out of her memory events which caused her distress; the contemnor has three young children, the eldest of whom suffers from severe cerebral palsy; these children have dire need of the presence of the contemnor. 21 The contemnor has expressed contrition and apologised. Her offence is aggravated by the fact that she has been, at all material times, under the constraints of a bond to be of good behaviour imposed following conviction in the Wyong Local Court for hindering the investigation of a serious offence, being her participation in furnishing a false alibi for the offender Wall. Notwithstanding this aggravating feature I am persuaded on balancing the objective and subjective features, and mindful of the six days which the contemnor has spent in custody, that a further bond to be of good behaviour should be imposed. 22 Renee Anne Russell, I make an order pursuant to s.9 of the Crimes (Sentencing Procedure) Act 1999 directing you to enter into a good behaviour bond for a period of five years commencing on this day, 6 June 2001, and expiring on 5 June 2006, upon the following conditions: