R v Diallo & Ors (No 10); Re referral of witness KL for contempt

1. [1]

   This judgment relates to the conduct of a witness, KL, [1] and whether they should be referred to the Prothonotary for the initiation of proceedings for contempt of court. The possible contempt concerns KL’s refusal to answer several questions asked of him by the Prosecutor in a murder trial and, on several occasions, refusing to answer when he was directed by the Court to do so. The conduct occurred on two separate occasions. First, during a pre-trial hearing on 8 July 2024 and, secondly, in the presence of the jury on Monday 19 August 2024.

2. [2]

   My preliminary view is that the conduct constitutes contempt in the face of the Court.

3. [3]

   KL should be afforded procedural fairness before further action is taken. Accordingly, KL, by his lawyers or otherwise, will be given the opportunity to make submissions as to why the matter ought not to be referred to the Prothonotary for the initiation of contempt proceedings. What follows is a short summary of the circumstances leading to this situation. Meanwhile, the trial is continuing.

Background

1. [4]

   Darcy Moore (“the deceased”) died of stab wounds on 1 September 2021. Five accused men have been charged with his murder and the attempted murder (also by stabbing) of two other men which occurred at around the same time and place.

2. [5]

   The prosecution case is that the accused men, pursuant to a joint criminal enterprise, attended the deceased’s home in Blacktown intending to kill or inflict serious injury on Darcy Moore or other members street groups or gangs known as the “Queen Street Boys” (“QSB”) and “Murda”. The accused were members of what is said to be a rival gang known as “MOB” (said to be an acronym for “Money Over Bitches”). Part of the defence case is that, whatever their purpose in attending the Moore home, they ultimately fled the scene with around 10-13 men chasing them with weapons including golf clubs and large knives. It seems that an issue for the jury will be whether the accused men, or any of them, acted in self-defence.

3. [6]

   KL is said to be a member of Mr Moore’s group, was present at the Moore home on 1 September 2021 and was part of the group that left that house and chased the accused men away.

4. [7]

   Around nine months after Mr Moore’s death, KL was charged with the murder of Uati Faletolu who was stabbed at the Royal Easter Show on 11 April 2022 (“the Easter Show murder”). Although KL pleaded guilty to the murder charge while the matter was still in the Children’s Court, there is a possibility that he will traverse his plea and rely on a partial defence of substantial impairment. More detail of that can be found in an earlier interlocutory judgment where I declined, over the Prosecutor’s call, to order production of certain reports prepared in those proceedings: R v Diallo & Ors (No 7) [2024] NSWSC 978.

5. [8]

   Two other things should be observed.

6. [9]

   First, KL objected to giving evidence about the events of 1 September 2021 based on his privilege against self-incrimination. I found there were reasonable grounds for his objection: Evidence Act 1995 (NSW), s 128(3). However, I was satisfied that the interests of justice “required [KL] to give the evidence” and, accordingly, “required” him to do so: Evidence Act, s 128(4). Pursuant to the provisions of s 128(5), I gave KL a certificate meaning that his evidence “cannot be used against” him, except in respect of the falsity of his evidence.

7. [10]

   Secondly, and relatedly, the objection taken by KL was more complex than similar objections taken by witnesses who were also present at the Moore house that night and joined the group that left those premises armed with golf clubs and, according to some of the evidence, knives. His concern went further because evidence of what he saw and how he reacted may be relevant to his possible partial defence of the Easter Show murder. It was for that reason that his Public Defender submitted, persuasively but unsuccessfully, that it was not in the interests of justice that he be required to give evidence. It was also for that reason that the certificate granted to him was to be:

8. [11]

   It was in that context that KL gave evidence first on a Basha inquiry on 8 July 2024 and then in the trial on 19 August 2024.

KL’s evidence on 8 July 2024

1. [12]

   KL’s evidence at the pre-trial hearing included:

The evidence on 19 August 2024

1. [13]

   KL’s evidence at the trial in the presence of the jury included:

Prima facie evidence of contempt and alternative procedures

1. [14]

   It is well established that a refusal by a witness to answer questions when directed to by the presiding Judge may amount to a contempt “in the face of the Court”: see for example, R v Taber and Styman; Re Shannon v Styman [2005] NSWSC 1329, Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393, R v Qaumi & Ors (No 62) [2016] NSWSC 1215 and R v Coskun (No 4) [2022] NSWSC 696.

2. [15]

   It is also established that, generally, the witness should be warned before a charge of contempt is levelled against them.

3. [16]

   KL was aware that he was at peril of being charged with contempt. His evidence on the pre-trial hearing included:

4. [17]

   A short time later, I gave KL the following advice or warning:

5. [18]

   When KL gave evidence before the jury, he was reminded of the possibility that he may be “charged with or cited for contempt of court by refusing to follow the directions [given by the court]”. [16] This reminder was given after he had received advice from experienced counsel and had been warned twice during the pre-trial hearing of the possibility he would be charged with contempt.

6. [19]

   It is open to a judge of this Court to deal summarily with a contempt committed in the face of the court: The King v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 241-243; [1951] HCA 3, Supreme Court Rules 1970 (NSW) Pt 55, Div 2 (“SCR”). However, it is generally accepted that the summary procedure should “rarely be resorted to”, [17] although, there are examples where the summary procedure was adopted: see for example In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141. In dealing with a contempt summarily, the trial Judge should orally charge the alleged contemnor and must allow for an adjournment to permit the alleged contemnor to put on a defence – SCR Pt 55, Div 2, r 3.

7. [20]

   An alternative procedure is for a judge of this Court to direct the Prothonotary [18] to initiate proceedings for contempt pursuant to SCR Pt 55, Div 3, r 11(1): see, for example, Jane Doe 1 v Dowling [2017] NSWSC 57 and R v WE (No.15) [2020] NSWSC 332. Prior to making such a direction a judge of this Court may refer the issue to the Prothonotary to seek advice from the Crown Solicitor’s Office regarding whether such proceedings should be commenced or not. [19] Before referring a possible contempt to the Prothonotary, the alleged contemnor should be provided with an opportunity to demonstrate why such a referral should not be made. [20]

8. [21]

   As I have observed, the summary procedure is generally considered to be “extraordinary and exceptional”: see European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, 456 per Kirby P (as he then was). The mischief in such a procedure is that the trial Judge becomes, or may be seen to be the victim, the star witness, the prosecutor, the arbiter of guilt, and the sentencer: cf European Asian Bank AG v Wentworth at 451 (Kirby P).

9. [22]

   In the circumstances of this case, the preferable course is to refer the matter to the Prothonotary. I was directly involved in the issues that arose when KL objected to giving evidence and when, unusually but understandably in the peculiar circumstances, his counsel made strong submissions that it was not in the interests of justice that KL be required to give evidence about the events of 1 September 2021, even with the protection of a certificate under s 128 of the Evidence Act. [21] It is not desirable that I be involved as a decision maker in any contempt proceedings beyond referring the matter to the Prothonotary.

10. [23]

    At the time of the possible contempt, none of the parties to the trial invited me to adopt the summary procedure and there was no suggestion of any urgency. Given the delays already occasioned in this trial, including a protracted pre-trial hearing which extended far beyond the initial estimates of counsel and involved my making hundreds of evidentiary rulings, I determined not to deal with the matter summarily which would have caused further delays in the trial.

Procedural fairness

1. [24]

   Where an inferior court is considering referring an alleged contemnor to this Court it is generally accepted that the requirements of procedural fairness dictate that the person to be so referred should be allowed the opportunity to be heard in opposition to such a referral: see, for example, Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 (“Dangerfield”). The judgment in Dangerfield contemplates that the requirements of procedural fairness may be different in the case of a superior court, and specifically this Court.

2. [25]

   Nevertheless, given the complexities of KL’s situation, which arise from the somewhat uncertain state of his own murder case, I have concluded it is appropriate to provide him the opportunity to be heard.

3. [26]

   Accordingly, KL will have the opportunity to make submissions against such a referral.

4. [27]

   Having reached that conclusion, my associate liaised with the solicitor and barrister who represent KL and the matter has been listed on Thursday 19 September 2024 to afford KL the opportunity to be heard on the issue of referral. The lawyers indicated a preference for KL to appear by audio visual link from the juvenile justice centre in which he is currently held.

Orders and directions

1. [28]

   Accordingly, I make the following orders and directions:

   1. (1)

      KL and his solicitors to be advised that I am inclined to refer the matter to the Prothonotary to institute proceedings for contempt.

   2. (2)

      KL is directed to appear before the Court at 2:00pm on 19 September 2024 to provide submissions as to why the matter should not be so referred.

   3. (3)

      KL is to appear by audio visual link and I direct the Registrar to make the appropriate arrangements for that to occur.