R v Diallo & Ors (No 11); Re referral of witness Deng aka Majak for contempt [2024] NSWSC 1086

R v Diallo & Ors (No 11); Re referral of witness Deng aka Majak for contempt [2024] NSWSC 1086

Given Mr Majak's repeated and explicit refusal to take an oath or affirmation, his refusal to comply with court directions, and the sustained, unambiguous nature of his conduct (with the benefit of legal advice), it appears to the Court that a contempt was committed and the preferable course is to refer the matter to the Prothonotary for commencement of contempt proceedings rather than proceeding summarily.

Parties
Prosecution: Rex; Defendant: Ibrahima Diallo; Defendant: AG; Defendant: AD; Defendant: Panashe Morgan Ryan Karise; Alleged Contemnor: Emmanual Majak
Jurisdiction
Australia
Judgment Date
18 September 2024
Procedural Posture
Criminal / Procedural Ruling; Referral for Contempt Proceedings
Outcome
Referral to Prothonotary for contempt proceedings against Emmanual Majak
Legal Topics
Refusal to Take Oath or Affirmation, Procedural Fairness in Contempt, Referral to Prothonotary
Criminal Law Contempt of Court Procedure Refusal to Take Oath or Affirmation Procedural Fairness in Contempt Referral to Prothonotary

Case Brief

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Parties

Rex

Prosecution

Ibrahima Diallo

Defendant

AG

Defendant

AD

Defendant

Panashe Morgan Ryan Karise

Defendant

Emmanual Majak

Alleged Contemnor

Procedural Posture

Criminal / Procedural Ruling; Referral for Contempt Proceedings

Legal Issues

  1. 1 Whether refusal to take an oath or affirmation and refusal to attend court constitutes contempt in the face of the court
  2. 2 Whether the trial judge should proceed summarily or refer the matter for contempt proceedings
  3. 3 Whether procedural fairness requires the alleged contemnor be given an opportunity to be heard before referral

Ratio Decidendi

Given Mr Majak's repeated and explicit refusal to take an oath or affirmation, his refusal to comply with court directions, and the sustained, unambiguous nature of his conduct (with the benefit of legal advice), it appears to the Court that a contempt was committed and the preferable course is to refer the matter to the Prothonotary for commencement of contempt proceedings rather than proceeding summarily.

Court Disposition

Referral to Prothonotary for contempt proceedings against Emmanual Majak

Orders

  • It appears to the Court that on 1 and 2 July 2024, and 19 and 22 August 2024, Emmanual Majak, having been a competent and compellable witness, refused to take an oath or affirmation and failed to comply with directions, thereby committing contempt of the Court.
  • Pursuant to Pt 55, r 11(1) of the Supreme Court Rules 1970 (NSW), the Prothonotary is directed to commence proceedings for contempt of Court against Emmanual Majak.