R v Diallo & Ors (No 16)

1. [1]

   On 18 September 2024 I published a judgment in which I expressed the opinion that the witness KL committed contempt in the face of the court by refusing to answer questions in a murder trial: R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 (“Diallo & Ors (No 10)”). The circumstances, and relevant parts of the transcript of the pre-trial hearing on 8 July 2024 and the trial on 19 August 2024, are set out in Diallo & Ors (No 10) at [9]-[13].

2. [2]

   My inclination, stated in the judgment, was to refer the papers to the Prothonotary (Registrar) pursuant to the procedures in Pt 55, Div 3 of the Supreme Court Rules 1970 (NSW). However, before taking that step, I allowed KL the opportunity to be heard.

3. [3]

   On 19 September 2024, KL appeared by audio video link and was represented by counsel (Ms Fernando) who appeared in person and made submissions on KL’s behalf. Ms Fernando made two fundamental submissions. The first was that the matter should not be prosecuted at all; that is, the alleged contempt should not be dealt with summarily (under Pt 55, Div 2) or referred to the Prothonotary (under Div 3). The second submission was that, if I did not accept the first submission, I should deal with the matter summarily under Div 2.

Submissions against any proceedings for contempt

1. [4]

   Ms Fernando acknowledged there was “evidence that has the potential to support a charge of contempt on two days”. [1] By reference to Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 (“Dangerfield”), Ms Fernando drew a distinction between the discretion to refer an alleged contempt to the Prothonotary and the decision to prosecute. She submitted the requirements of procedural fairness were confined to the referral power. However, she made submissions relevant both to the question of referral and the issue of whether the alleged contempt should be prosecuted. Ms Fernando argued that “matters particular to [KL]” justified a decision not to proceed with contempt charges either by way of referral or by summary disposition.

2. [5]

   Ms Fernando placed reliance on KL’s age. He was born in late September 2007 and aged around 13 years 11 months at the time of the events about which he was called to give evidence. He has just passed his seventeenth birthday. Ms Fernando’s research and that of the admirable staff at the Public Defenders’ Library uncovered only one instance of a juvenile being dealt with for contempt and that case was “from [the] last century” (1985). [2]

3. [6]

   Ms Fernando submitted:

4. [7]

   Ms Fernando submitted that the pressure on KL to remain silent as a witness when he is presently in custody, with bail refused on a murder charge, is another discretionary factor relevant to whether any contempt should be prosecuted. However, she acknowledged it is also a matter that may potentially go to mitigation of the appropriate penalty. With admirable candour, Ms Fernando referred to the comments of Kirby P (as he then was) in Registrar of the Court of Appeal v Raad (Court of Appeal (NSW), 9 June 1992, unreap), as cited in the judgment of R v Taber and Styman; Re Shannon v Styman [2005] NSWSC 1329 at [18]:

5. [8]

   Ms Fernando acknowledged that “personal deterrence” is also a relevant consideration in circumstances where another accused (YA) is to stand trial in November and KL is expected to be called to give evidence.

6. [9]

   Despite the persuasive submissions made on his behalf, the factors relied on by KL are largely matters relevant to mitigation of penalty. Insofar as they impact on the decision to prosecute, be it described as discretionary or otherwise, those factors are outweighed by the public interest in witnesses, even young ones, giving evidence in trials of serious offences. That public interest is not advanced if the Court allows a compellable witness to disobey clear and repeated directions to answer questions without consequence.

7. [10]

   For those reasons, proceedings for contempt will be instituted by one or other of the procedures set out in Pt 55, Divs 2 and 3 of the Supreme Court Rules.

Submissions urging the Court to deal with the matter summarily, rather than by way of referral

1. [11]

   In the alternative and against the possibility that her first submission was not accepted, Ms Fernando submitted that the matter should be dealt with summarily. She acknowledged this was an unusual submission. However, reliance was placed on KL’s “unique situation” including the intersection of these proceedings with KL’s possible plea traversal in his own murder proceedings, as well as the fact that I have some knowledge of those matters having made various “protective” orders in relation to the witness. These included providing him with a broadly cast certificate to protect KL against self-incrimination and declining to require him to produce expert reports when those documents were called upon by the Prosecutor: see R v Diallo & Ors (No 7) [2024] NSWSC 978 and R v Diallo & Ors (No 10) at [9]-[10].

2. [12]

   Ms Fernando put her submission in a balanced and sensible way:

3. [13]

   The Prosecutor (in the trial proceedings) sought to be heard and joined Ms Fernando in submitting that the matter ought to be dealt with summarily. He submitted the referral process will cause significant delays and reduce the specific deterrence effect of any sentencing:

4. [14]

   The reference to “4 November” is a reference to the trial date of the separated trial of YA. The thrust of the submission is that dealing with the contempt matter expeditiously may encourage KL to be more co-operative if (or when) he is called to give evidence before the jury in YA’s trial. The Prosecutor said, “the law can only operate through various levers and mechanisms and this is one of them for recalcitrant witnesses.”

5. [15]

   While policy considerations generally tend to favour the referral process rather than the summary procedure, I am persuaded that the joint position of the parties should be accepted. There are two primary reasons for this.

6. [16]

   First, with the benefit of the advice of experienced counsel, the person in jeopardy (KL) has renounced any concerns of my acting as the witness, victim, [6] arbiter and sentencer.

7. [17]

   Secondly, the proximity of YA’s trial, and the likelihood that KL will be called as a witness, makes it desirable that the contempt proceedings be dealt with expeditiously.

8. [18]

   I was concerned that it may be necessary to order a background report assuming any summary disposition of the contempt proceedings reached the penalty stage. However, the relevant legislation excludes the requirement for such a report from proceedings relating to contempt. Section 25 of the Children (Criminal Proceedings) Act 1987 (NSW) applies to a person under 18:

9. [19]

   The relevance of other parts of the Children (Criminal Proceedings) Act may need to be considered further in light of the decision in Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [33]-[58] and the “applicability” provision in s 4 of that Act. However, the exception to the requirement for a background report, highlighted by my emphasis in the extract of s 25 in the last paragraph, means that the delays inherent in the provision of such reports will not – at least of itself – result in any delay in disposing of the contempt proceedings against KL.

10. [20]

    Having heard the submissions of KL and contrary to my earlier inclination to exercise the referral power, I propose to deal summarily with KL’s (alleged) contempt in accordance with Pt 55, rr 1-4 of the Supreme Court Rules.

Proceedings for contempt – framing of charges and timetable

1. [21]

   I accept Ms Fernando’s submission that, rather than charging multiple counts of contempt by reference to each occasion KL declined to answer a question after being directed to do so, the facts can be encompassed by the framing of two charges, one to cover each date upon which KL refused to answer questions.

2. [22]

   Accordingly, pursuant to Pt 55, r 3, KL will be brought to court and informed orally of two charges of contempt in the following terms:

   1. (1)

      On 8 July 2024, while giving evidence on a pre-trial hearing in the murder trial known as Rex v Diallo, Karise, AD, AG and YA in the Supreme Court sitting at Parramatta, committed a criminal contempt in the face of the court by refusing to answer questions when directed to do so.

   2. (2)

      On 19 August 2024, while giving evidence in the murder trial known as Rex v Diallo, Karise, AD and AG in the Supreme Court sitting at Parramatta, committed a criminal contempt in the face of the court by refusing to answer questions when directed to do so.

3. [23]

   The date upon which that will occur will be determined by reference to YA’s trial date (4 November 2024) and Ms Fernando’s availability. On that date, KL will be required “to make his defence” to the charges of contempt, and after hearing from him or his counsel, the court will “determine the matter of the charges”. If a charge or both charges are established, the court will move immediately to determine the appropriate punishment.

4. [24]

   Once the matter is listed for the above purpose, further case management orders will be made if necessary.

Orders

1. [25]

   At this stage, I make the following orders:

   1. (1)

      Two charges of contempt, as identified in [22] and particularised in R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085, to be disposed of summarily pursuant to Pt 55, Div 2 of the Supreme Court Rules 1970 (NSW).

   2. (2)

      Expedite the disposition of the matter.

   3. (3)

      My associate to liaise with KL’s counsel and solicitors to determine a suitable date for an expedited hearing.

   4. (4)

      Within seven days (that is by 5:00pm on Monday 7 October 2024), KL’s legal representatives to advise my associate of the plea KL proposes to enter when informed formally of the charges.