R v Diallo & Ors (No 11); Re referral of witness Deng aka Majak for contempt

1. [1]

   This judgment relates to the conduct of a witness – Emmanual Majak (also known as Emmanual Deng) – who refused to take an affirmation or oath when called to give evidence via audio visual link (“AVL”) on the voir dire and then refused to come to the court from the cells when directed to do so during the trial. I will refer to him as Mr Majak, while noting he is generally referred to as Mr Deng in the transcript.

2. [2]

   The question is whether Mr Majak should be dealt with summarily for contempt, or whether he should be referred to the Prothonotary for the institution of proceedings for contempt, and whether he should be afforded an opportunity to be heard before a decision is made that either of those things should occur. Similar, but not identical, issues arose with respect to the witness KL who declined to answer a number of questions when directed to do so: see R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 (“Diallo & Ors (No 10)”).

3. [3]

   The drama surrounding Mr Majak’s evidence, or absence of evidence, played out over four separate court days. I will explain the context of what happened and set out the transcript which records what transpired.

Monday 1 July 2024

1. [4]

   On Monday 1 July 2024, the first day of the pre-trial hearing relating to the murder trial of five accused men, it was anticipated that Mr Majak, along with four other potential witnesses, would give evidence on a Basha inquiry. [1] I understand Mr Majak had not provided a statement to police or co-operated with the prosecuting authority. He is said to be a member of a group of young men who came into physical conflict with another group of young men, being the five accused in the current proceedings. During the melee, which occurred over two or three suburban streets in Blacktown, at least six people received stab wounds. One of those people, a young man called Darcy Moore, died from a single stab wound to the chest. Other evidence suggests that Mr Majak was one of Darcy Moore’s friends. The five accused men were to face trial (and four of them are now on trial, with the fifth to face trial in November 2024) for the murder of one man and the attempted murder of two others.

2. [5]

   Security issues were raised by those with the responsibility of managing the custody of Mr Majak and four of the accused men. Those issues were said to result from threats made by Mr Majak. That has no relevance to the present issue but provides some context to the fact that I was told that Mr Majak refused to come from the cells to the courtroom. The transcript records the following:

3. [6]

   Arrangements were made for Mr Majak to be returned to the Corrective Services institution from which he had come. Arrangements were made for him to give evidence by AVL the following day.

Tuesday 2 July 2024

1. [7]

   Mr Majak attended, or was taken to, the AVL suite at the gaol where he was accommodated so that he could give evidence on the Basha inquiry by AVL. The AVL was opened and the following is recorded in the transcript (with some minor proofing errors corrected by the writer):

2. [8]

   To complement the observations made in the above passage of transcript, Mr Majak walked out of the AVL suite almost immediately upon being told that the court officer was about to administer an affirmation or oath.

Monday 19 August 2024

1. [9]

   On Wednesday 31 July 2024 a jury was empanelled in the trial of four of the accused men. It was intended to call Mr Majak on Monday 19 August 2024. He was brought to Court that day and was in the cells in the basement of the Parramatta Trial Court complex. Counsel reminded me of the difficulties that were encountered when Mr Majak was called on the pre-trial hearing:

2. [10]

   There was a short adjournment to have Mr Majak brought to Court. However, in accordance with my request if predictable difficulties ensued, Corrective Services staff approached me in chambers to indicate that Mr Majak would not co-operate and go to the courtroom. This was recorded in the transcript when the trial resumed in the absence of the jury:

3. [11]

   My associate, and (I think) the solicitors instructing the Prosecutor, contacted the solicitor who appeared for Mr Majak during the Basha inquiry (Mr Fung) as well as another lawyer (Mr Newham) who appears for Mr Majak in unrelated proceedings. Mr Fung attended Court later that day:

4. [12]

   Mr Fung provided a further update towards the end of the day:

Thursday 22 August 2024

1. [13]

   On Thursday 22 August 2024, Mr Majak was brought back to the cells in the basement of the Parramatta Trial Court complex. He again refused to be brought to the courtroom. His position was communicated to the Court by way of an email from the court officer:

Refusing to take an oath or affirmation is generally considered to constitute contempt in the face of the court

1. [14]

   It is well established that the refusal by a witness to take the oath constitutes a contempt in the face of the Court: see, for example, Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 and R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132.

2. [15]

   Mr Majak plainly refused to take the oath or affirmation on 2 July 2024 when he appeared via AVL. The import of the interaction he had with me and with the Prosecutor was that he would take the contempt charge in preference to an affirmation or an oath.

3. [16]

   He constructively declined to take the oath on 1 July 2024, 19 August 2024 and on 22 August 2024 by refusing to come to the courtroom in the absence of the application of physical force. Whether that – “constructive refusal to take the oath or affirmation” – is the correct categorisation of his conduct is not to the point. It was conduct of a similar kind and may well constitute a criminal contempt of court warranting punishment.

4. [17]

   However it is categorised, Mr Majak refused to comply with the clear directions and orders of the Court.

Referral, rather than summary disposition, is the preferable course

1. [18]

   I discussed the alternative procedures available to institute or prosecute proceedings for contempt in Diallo & Ors (No 10) at [19]-[22]. A question arises whether I should exercise the Court’s power to deal with the contempt in a summary fashion or whether there should be a referral to the Registrar (Prothonotary).

2. [19]

   As in the case of the witness KL, the preferable course is to refer the matter to the Prothonotary. That is a better approach, at least in terms of what might be described these days as “the optics”. It is generally not desirable for the trial Judge to assume the multiple roles of being the victim, witness, jury and executioner. [9] The Prosecutor, who sought to adduce Mr Majak’s evidence, did not invite me to engage in the summary procedure whereby Mr Majak would be charged, convicted, and sentenced during the course of the trial.

3. [20]

   There was also the practical consideration that, because Mr Majak deliberately absented himself from the courtroom, charging him formally would likely prove to be difficult unless the court “reconvened” in the cells as Wilson J did; In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 at [75].

Should Mr Majak have the opportunity to be heard before the matter is referred to the Prothonotary?

1. [21]

   In R v Diallo & Ors (No 10), I decided it was appropriate to give the witness KL an opportunity to be heard as to why the matter should not be referred to the Prothonotary. That is a procedure that is often followed to ensure the alleged or putative contemnor is afforded procedural fairness.

2. [22]

   However, in Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 (“Dangerfield”), the Court of Appeal considered that while the requirements of procedural fairness may require such a procedure in matters dealt with by the Local Court (and presumably other inferior or statutory courts), the same requirements may not apply to a superior court such as this one, particularly in light of the requirements of Pt 55 of the Supreme Court Rules.

3. [23]

   This is not to suggest that the requirements of procedural fairness do not remain important. However, the content of the requirements may vary depending on the circumstances of the case, the particular stage the process has reached, and the jurisdiction of the court or tribunal contemplating the institution of contempt proceedings.

4. [24]

   In Dangerfield, while enumerating and explaining the reasons that the requirements of procedural fairness applied to the Local Court proceedings under consideration, and rejecting a number of submissions made by the Prothonotary, Gleeson JA, with whom Beazley P (as her Excellency then was) and Payne JA agreed, said:

5. [25]

   Payne JA made additional observations at [97]-[98] in relation to the significance of a party having legal representation and advice. His Honour also stressed that Ms Dangerfield ought to have been aware of the alternative options of determining the matter; either under the Local Court statutory power to proceed summarily or by referral to the Supreme Court.

6. [26]

   Taking into account the circumstances prevailing in the present case, I can see no utility in giving Mr Majak an opportunity to be heard on the issue of referral at this stage. He made it clear, from the outset, that his preference was to take the contempt charge over an affirmation or an oath. His conduct was unambiguous, calculated and sustained. I am inclined to defer to his preference sooner rather than later.

7. [27]

   It was clear from the outset, and the record reflects, that Mr Majak had legal advice and was represented before he appeared by AVL. With the benefit of that advice, he elected to conduct himself as he did.

8. [28]

   There is nothing to be gained by wasting the limited resources of the Legal Aid Commission, or putting Mr Majak to the expense of obtaining legal representation at this stage. Equally, there is little point in requiring the prison authorities to bring Mr Majak to Court yet again when, based on his previous conduct, he will refuse to be brought to the courtroom.

9. [29]

   My decision not to proceed summarily will not be altered by anything Mr Majak could contribute and is ostensibly to his advantage in the circumstances.

10. [30]

    This judgment sets out the nature of the charge or charges to be preferred against him and the particulars of the conduct said to constitute that charge or those charges. My associate will forward this judgment to each of the solicitors who have acted for Mr Majak in more recent times. I will direct the Registrar to forward a copy to Mr Majak himself.

11. [31]

    In the not too distant future, Mr Majak will be advised of the precise form of the charge or charges instituted by the Prothonotary and will have every opportunity to take legal advice, to consider his position, and to respond to that charge or to those charges.

12. [32]

    If Mr Majak has some arguable defence to any charge that is formulated, or even a fanciful one, he will have the opportunity to present it. He may also have matters to put in mitigation, but given his opening gambit was to invite me to charge him with contempt, it seems very unlikely that he would have anything sensible to put against the matter being referred to the Prothonotary.

13. [33]

    On the face of the record and on my observations of the events as they unfolded, the proposition that Mr Majak acted in contempt of the Court seems impossible to resist.

14. [34]

    Accordingly, I propose to refer the matter to the Prothonotary immediately.

15. [35]

    In formulating the orders, I have taken into account Pt 55, r 1 of the Supreme Court Rules which defines “contemnor” to include an alleged contemnor. I have also applied and adapted the somewhat awkward language of Pt 55, r 11(1) concerning the requirement that it must “appear to the Court on its own view” that a contempt was committed.

Orders and directions

1. [36]

   I make the following orders:

   1. (1)

      It appears to the Court, based on my own view as the trial Judge, that on 1 and 2 July 2024, and 19 and 22 August 2024, Emmanual Majak (“the contemnor”), having been a competent and compellable witness in the trial of R v Diallo & Ors in the Supreme Court, refused to take an oath or affirmation and otherwise failed to comply with the directions of the Court and that he did thereby commit contempt of the Court.

   2. (2)

      Pursuant to Pt 55, r 11(1) of the Supreme Court Rules 1970 (NSW), I direct the Prothonotary to commence proceedings for contempt of Court against the contemnor.

   3. (3)

      The charge or charges may be framed and particularised as the Prothonotary may be advised by the Crown Solicitor and/or the Crown Advocate as briefed by the Crown Solicitor.

   4. (4)

      My associate will provide a copy of this judgment to the two solicitors who have acted for Mr Majak in recent times.

   5. (5)

      The Registrar is to provide a copy of this judgment to Mr Majak.