R v Abdallah (No. 2)

[2014] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation:

R v Abdallah (No. 2) [2014] NSWSC 111

Hearing dates:

17 February 2014

Decision date:

17 February 2014

Jurisdiction:

Common Law - Criminal

Before:

Campbell J

Decision:

(1)Matthew Edward Lewis, 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. I remand you in custody on a date to be fixed at the conclusion of this trial and I refuse bail.

(2)I will make the order as sought by the Crown under section 7 of the Court Suppression and Nonpublication Orders Act 2010. I order that the proceedings before me today, so far as they concern Mr Matthew Edward Lewis, may not be published by any person on the ground that a nonpublication order is necessary to prevent prejudice to the proper administration of justice in that the jury panel who will assemble here on Wednesday, ought not to be exposed to the events of today, lest it interfere with their proper discharge of the duty of those of them empanelled to form a jury in the discharge of their obligations according to law.

(3)That order inures until further order of the court and will dissolve upon the taking of the jury's verdict in the trial of the accused.

Catchwords:

CRIMINAL LAW - trial - contempt of court - refusal by witness to give evidence

Cases Cited:

Coward v Stapleton (1953) 90 CLR 573

Category:

Separate question

Parties:

Regina
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

1. Mr Matthew Edward Lewis has been called as a witness before me to give evidence about the death of Neal Todorovski, the victim of the murder charge brought against the accused. The proceedings before me are in the nature of a Basha inquiry. As is Mr Lewis's right he has declined to make a statement about his knowledge, and has not otherwise co-operated with the prosecution, except in one important respect to which I will return.

1. I repeat, it is the right of every citizen to decline to answer questions or at least to decline to make a statement if asked.

1. The Crown case against the accused is that he shot the deceased a number of times with a handgun in broad daylight in a residential street in the southern suburb of Sans Souci on 4th January 2012. It is the Crown case that before the accused produced the handgun and fired the shots, that the deceased was in the company of Mr Leger who was called earlier today, and Mr Lewis who is called now.

1. The Crown says that each of those persons was armed in some way. It is also the Crown case that there was a physical altercation involving the accused and Mr Leger in which Mr Todorovski and Mr Lewis participated and this altercation led to the production by the accused of a gun which he used to shoot the deceased and with which he discharged a shot at Mr Leger.

1. Because Mr Lewis has not made a statement, I acceded to an application to conduct a Basha inquiry in this matter so the evidence he may be able to give as a Crown witness in the prosecution of the accused could be ascertained so that the accused would know the nature of the case he had to meet.

1. When Mr Lewis was called this morning by the Crown Prosecutor he took an oath to tell the truth. He identified himself as Matthew Edward Lewis, but when asked about the events with which the court is concerned, he said "I don't remember", a response that he maintained when I asked him questions.

1. When I asked him questions about the apparent or prima facie absurdity of that response, he said he had taken a lot of Xanax and it had affected his memory. There is no evidence of a technical nature before me as to the effect, if any, of Xanax, a prescription drug, on the memory and what dosage might be necessary to be ingested to produce the effect of a total absence of recall.

1. Mr Clark of counsel who appears for Mr Lewis, asked for an adjournment in order to obtain that evidence. During the course of argument, I indicated that I refused that application for an adjournment for a number of reasons. Principal amongst them being there was no explanation given as to why, if that evidence was to be led, it was not made available today, given that it was well known to Mr Lewis the Crown intended to call him as a witness today, especially given the history of the matter in that he was subpoenaed to give evidence at the committal proceedings and the counsel then appearing for him, not Mr Clark, said there was a psychological reason why he couldn't answer questions.

1. No evidence was led there about that matter because the Crown did not persist in its intention to call Mr Lewis to give evidence at the committal.

1. In Coward v Stapleton (1953) 90 CLR 573, the High Court of Australia held that a refusal to answer questions lawfully required to be answered in proceedings might be proved by the giving by a witness of answers which are so plainly absurd as to convey an intention not to give any real answer to the questions to which they relate.

1. It seems to me prima facie, and prima facie only, that the evidence that Mr Lewis has given falls into that category justifying the conclusion, on my part, that there is sufficient material before me to justify charging Mr Lewis with contempt in the face of the court constituted by his constructive failure to answer questions.

1. I will proceed to lay that charge in due course. I make it clear, as would be known to all counsel in the case, and for Mr Lewis' benefit that in laying the charge I have not formed any conclusion on a final basis, whether or not Mr Lewis is guilty of contempt. He will be given the opportunity to answer that charge after the completion of the trial of the accused and he will at that stage have the opportunity to lead such evidence in his own defence as he wishes to lead and to make such arguments as to his guilt or innocence as he wishes to make.

1. However, in making these observations I accept the force of the submissions for the Crown that the obligation of any person called as a witness to answer questions is a fundamental one that goes to the very heart of the proper administration of, in this case, criminal justice. Allowing the adjournment sought by Mr Clark, or failing to charge Mr Lewis in the circumstances, that I have outlined in these reasons, would have the appearance of allowing a person like Mr Lewis, to flout the requirements imposed by law on every person called to give evidence in these courts, notwithstanding that he has not been found guilty of any such charge.

1. Mr Clark has applied for bail, should I charge Mr Lewis. He properly points out his client is unlikely to be a flight risk given that on the material before me, he has appeared when required. He appeared at the committal proceedings under subpoena and he has appeared here today under subpoena. He has not made it difficult for the prosecution to secure his attendance to give evidence.

1. I know little else about Mr Lewis that would be relevant to a question of whether he should be granted bail, pending the disposition of the charge which I propose to lay against him. I can well imagine that he would rather be at liberty and if at liberty could pursue lawful endeavours and the like. It has not been shown on any evidence before me that I need be concerned about him interfering with any other witness in the prosecution in any way or interfering with any juror to be empanelled in due course to hear the case.

1. However I am concerned granting him bail will not bring home to him the seriousness of what I regard as, prima facie, his refusal to answer questions. Allowing him to go about his life in the usual way in the State of Queensland will not concentrate his mind on whether he should give serious consideration to the opportunity which he will have to purge his apparent contempt during the currency of the trial.

1. It seems to me, for the protection and welfare of the community as well as in the interests of the administration of justice, only if I commit him or remand him on custody pending the determination of the charge, will he be required to seriously contemplate the need to purge his contempt. He will be given the opportunity to do so simply by indicating to the authorities that he has changed his mind and he is willing to come to court and give evidence in this trial, and most importantly, to properly answer all questions required of him in relation to the proceedings.

1. My Orders are:

(1)   Matthew Edward Lewis, 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. I remand you in custody on a date to be fixed at the conclusion of this trial and I refuse bail.

(2)   I will make the order as sought by the Crown under section 7 of the Court Suppression and Nonpublication Orders Act 2010. I order that the proceedings before me today, so far as they concern Mr Matthew Edward Lewis, may not be published by any person on the ground that a nonpublication order is necessary to prevent prejudice to the proper administration of justice in that the jury panel who will assemble here on Wednesday, ought not to be exposed to the events of today, lest it interfere with their proper discharge of the duty of those of them empanelled to form a jury in the discharge of their obligations according to law.

(3)   That order inures until further order of the court and will dissolve upon the taking of the jury's verdict in the trial of the accused.

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