R v Abdallah [2014] NSWSC 110

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah [2014] NSWSC 110 Hearing dates: 17 February 2014 Decision date: 17 February 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: (1)John Leger I charge you with being in contempt of the Supreme court of New South Wales arising out of your wilful refusal to answer questions asked of you in the present proceedings when required to do so. (2)I commit you to custody until the conclusion of the present trial when arrangements will be made for you to be brought back to this court to answer the charge at that time. I refuse bail. (3)I make an order under section 7 of the Court Suppression and Non Publication Orders Act 2010 that the course of proceedings before me today from when Mr Leger was called to give evidence until he was committed into custody are not to be published by any person to prevent prejudice to the proper administration of justice in this case. Catchwords: CRIMINAL LAW - trial - contempt of court - refusal by witness to give evidence Category: Separate question Parties: Regina (Crown) Tarek Abdallah (Accused) Representation: Counsel: P Leask (Crown) D Dalton SC(Accused) B Clark (for witnesses Matthew Lewis and John Leger) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor (Accused) File Number(s): 2012/00008057

EX TEMPORE Judgment 1Mr John Leger appears before me today under a subpoena issued at the request of the Crown. Mr Leger is a person who was a witness to the alleged murder of Mr Neal Todorovski. He is also the alleged victim in the second count which the accused in these proceedings faces. 2As is his right Mr Leger refused to provide a statement to the investigating police officers during the course of their investigation. 3The Crown case is that the accused shot Mr Todorovski in broad daylight in the southern suburb of Sans Souci using a handgun. It is part of the Crown case that prior to that the deceased, this witness and another had a confrontation with the accused in a public street. After an exchange of blows involving the accused and another person the Crown allege that the accused obtained a handgun from his motor vehicle which he discharged several times. Five or six bullets made contact with the deceased. It is also alleged that the accused chased Mr Leger down the driveway of a block of units. To get away it was necessary for Mr Leger to run away and negotiate a fence by either going over it or through a gate. During this chase, so the Crown say, the accused discharged another shot with the intention of murdering Mr Leger. 4When he was called to give evidence before me this morning Mr Leger was asked about the events of the day of the shooting. He said "I can't remember". He gave that evidence, if that is what it is, more than once. 5To other questions asked by the learned Crowned Prosecutor he simply sat mute thereby declining to answer the questions. I interpolate the purpose of him giving evidence before me at this stage is in the nature of a Basha enquiry into the evidence Mr Leger would give if called as a Crown witness in the trial proper which will commence before the jury on Wednesday. 6The transcript will show that after a longish silence I asked Mr Leger whether he was refusing to give evidence or to answer questions required of him in the proceedings before me. Mr Leger said that he was refusing to answer questions. I allowed a short adjournment to enable Mr Leger to take the advice of his counsel, Mr Clark. When I resumed the Basha enquiry I asked Mr Leger whether, having had the opportunity of taking that further advice, he was now prepared to answer the questions required of him in these proceedings. Mr Leger said he was not. 7I indicated to counsel I thought the appropriate procedure in the circumstances of the case was that I charge Mr Leger with contempt in the face of the Court and that I commit him thereafter in custody on remand pending the conclusion of the trial, for the purpose of giving him the opportunity of considering his position and perhaps purging his apparent contempt. 8After debate about that and submissions from Mr Clark, including a submission that if I charged Mr Leger he should not be committed on remand, I again gave Mr Leger the opportunity to say whether he was now prepared to answer questions required of him in these proceedings. He said he was not. 9It seems to me appropriate that I should now charge Mr Leger with contempt in the face of the Court. I will do that in a moment. The procedure I propose to follow is, once he is charged I will stand that matter over until the conclusion of the trial when he will be brought back before me, or perhaps another judge, to be dealt with on the charge of contempt in the face of the Court. 10Mr Clark of counsel has foreshadowed an application for bail. He has argued that I could have no reason to suppose that Mr Leger is a flight risk. He answered a subpoena to appear at the committal proceedings, although, in the event, he was not required to give evidence. And he not only answered a subpoena to give evidence today before me but he facilitated its service by attending the Police Station to accept service of the subpoena. I accept that those matters do suggest that Mr Leger would answer the charge when required. 11However I have no information about the nature of his community ties. There is nothing put before me which suggests that he has any particular need to be at liberty over and above the general wish of anyone to be at liberty. True it is that there is no material from which I could infer that any person, witness or juror, would be at risk if Mr Leger was at liberty. 12However, that is not the end of the factors which I need to consider. In particular I need to consider the protection and welfare of the community, particularly the interests of the administration of justice in terms of the absolute imperative that members of our community co-operate with the authorities and with the Courts in the trial of serious criminal charges. As the learned Crown Prosecutor points out there could hardly be more serious charges than those faced by the accused before me of gunning down an individual in broad daylight in a public place and chasing and attempting to murder Mr Leger. The seriousness of these charges make it imperative that the Court treat seriously the obligation that Mr Leger owes to give evidence and to answer all questions required of him in this court. It seems to me there is force in the submission made by the learned Crown Prosecutor that the purpose of the law of contempt in this particular case may well be frustrated if I grant bail. In making these observations I bear in mind that as yet Mr Leger has not been asked to enter a plea to the charge. I also bear in mind that he will be given every opportunity to defend himself. I must say, however, there has been no explanation forthcoming from anyone in circumstances where he is legally represented justifying his refusal to answer questions. 13Before me it was pointed out that at the committal proceeding there was some suggestion that because of a psychiatric condition Mr Leger might have been unable to give evidence in relation to these matters. No such evidence has been put before me and certainly from what I saw from the material before the Magistrate no such evidence was put before him. It would seem to me that the most compelling evidence of that type would be required if there was to be an excuse proffered for the failure of Mr Leger to answer the questions asked of him but I in no way pre-judge what evidence might be brought to bear on this question when he is dealt with for the charges. 14It seems to me that the appropriate thing to do, given the nature of the contempt, is to refuse bail and to commit him to custody on remand pending determination of the charges. That will give him every opportunity should he think it appropriate to purge his apparent contempt and that may be done by him indicating to the authorities that he is willing to come to court during the trial to give evidence. 15My orders are: (1)John Leger I charge you with being in contempt of the Supreme court of New South Wales arising out of your wilful refusal to answer questions asked of you in the present proceedings when required to do so. (2)I commit you to custody until the conclusion of the present trial when arrangements will be made for you to be brought back to this court to answer the charge at that time. I refuse bail. (3)I make an order under section 7 of the Court Suppression and Non Publication Orders Act 2010 that the course of proceedings before me today from when Mr Leger was called to give evidence until he was committed into custody are not to be published by any person to prevent prejudice to the proper administration of justice in this case.