Two men who refused to give evidence in a brutal bashing trial because of fear of recrimination have been jailed for six months each for contempt of court.
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Jake Douglas Herlihy, 23, and Clinton Charles Wilson, 29, were crucial eyewitnesses in the trial of Corey Mitchell Gesler, 28, of Youngtown, who was found guilty by a Supreme Court jury of aggravated armed robbery and intentionally causing grievous bodily harm to Alexander Robert Friend at Waverley on January 9-10, 2018.
In what Justice Robert Pearce described as a prolonged and brutal bashing, Mr Friend suffered life threatening injuries after being punched, kicked, elbowed and hit with a chair leg.
Justice Pearce said that it was likely that Wilson and Herlihy feared recrimination inside prison or on the outside.
Herlihy's defence counsel Lucy Flanagan submitted on Tuesday that Herlihy had a fear of confrontation with Gesler in prison.
"It was not explicitly suggested but it is likely there was fear of other recriminations in prison if you were to give evidence against another," Justice Pearce said.
Both men pleaded guilty to their part in the bashing and have been jailed in the past three years.
They received a discount on their sentences after pledging a willingness to give evidence in expected upcoming trials including Gesler and a third participant Sammual Wilmot.
Justice Pearce said both men could have given important and direct evidence of what occurred.
Wilson refused to come out of his cell and give evidence when called on June 21.
Herlihy came to the door of the courtroom in the presence of a jury on June 22 and said "I do not want to be here".
He maintained his position overnight despite receiving legal advice.
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Justice Pearce said that Wilmot had given evidence in Gesler's trial, but it was unfavourable to the Crown case and that he had not made a genuine attempt to give truthful evidence.
Despite not giving evidence the men's interviews with police were played to the court under sections 65 and 66 of the Evidence Act.
He said their refusal to give evidence in such a serious matter undermined the rule of law and of justice.
"It is every member of a community's duty to give evidence when called," Justice Pearce said.
He said he did not give much weight to Wilson's claim that he wanted to lead a law-abiding life and put it behind him.
He said that both men's jail sentences for aggravated armed robbery and intentionally causing bodily harm were likely to be reviewed upon appeal by the Crown to the Court of Criminal Appeal for going back on a deal to give evidence in the trial.
Herlihy received a four-year, nine-month jail sentence in February 2020 - a 15-month discount for agreeing to give evidence.
"But for your plea and willingness to give evidence I would have sentenced you to imprisonment for six years," Justice Pearce said in sentencing.
"I have reduced the head sentence by just over 20 per cent. I also state that those factors influence my decision to allow you the earliest possible eligibility for parole."
Wilson received a five-year, six-month jail sentence when he pleaded guilty in December 2019.
In sentencing in 2019 Justice Pearce allowed Wilson a 10 per cent discount for pleading guilty and another 10 per cent for agreeing to give evidence.
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"But for those factors, I would have sentenced you to imprisonment for seven years," he said. Wilson's non-parole period was reduced from four years to 33 months for the same reasons.
"It is the policy of the criminal law to allow a reduction in sentence in return for giving evidence in relation to co-offenders.
"The indication of a willingness to give evidence is likely to make your life more difficult both in prison and possibly after your release.
"If you fail to co-operate as you have promised the sentence may be reviewed and increased on appeal."
A third co-offender, Sammual Clinton Wilmot, also received an 18-month sentence discount after pleading guilty in December 2021.
He gave evidence in the trial although many of his responses comprised "dunno'', "can't recall'', "not that I remember" and he claimed he was intoxicated on drugs.
Wilmot's interview with police was also played to the jury during which he said the bashing was brutal and should never have happened.
Wilson's six months was added to the term he was serving.
Herlihy's six months was also added to his existing term.
In June a Launceston man who welched on his deal to give evidence in a murder trial had his non-parole period increased by two years as a result of a CCA decision.
William Adair Rothwell, then 17, was sentenced to 26 years in jail by Justice Pearce with a non-parole period of 15 years for the murder of Billy Ray Waters.
Rothwell's non-parole period was originally discounted by two years because he agreed to give evidence.
When he failed to give satisfactory evidence his non-parole period was increased by two years to 17 years.
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Nick Clark
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
