- Unreported Judgment
SUPREME COURT OF QUEENSLAND
O’Connor v Witness G  QSC 281
DANIEL MICHAEL O’CONNOR
BS 4911 of 2013
1 July 2013
25 June 2013
Margaret Wilson J
CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the applicant sought an order that the respondent be committed to prison or otherwise punished for contempt – where the Crime and Misconduct Commission was authorised to hold investigative hearings in relation to a murder – where the respondent was issued with a notice requiring the respondent to attend the hearings to give evidence – where the presiding officer put a question to the respondent that he refused to answer – where the applicant issued a certificate of contempt against the respondent pursuant to s 199(2) of the Crime and Misconduct Act, and certified the contempt to the Court – assessment of the appropriate punishment – range of penalties that may be imposed – whether maximum term of imprisonment prescribed by the Penalties and Sentences Act 1992 (Qld) applicable – whether the parole provisions of the Penalties and Sentences Act 1992 (Qld) applicable
Crime and Misconduct Act 2001 (Qld) s 190, s 198, s 199, s 200
Criminal Code Act 1899 (Qld) s 8
Penalties and Sentences Act 1992 (Qld) s 44, s 45, s 90, s 91, s 100, s 101, s 111, s 112, s 143, s 152, s 153A, s 159A, s 160A, s 160B, s 163
Uniform Civil Procedure Rules 1999 (Qld) Ch 20 Divs 1-4, rr r 925, r 926, r 930, r 931, r 932
Australasian Meat Industry Employees’ Union & ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98, cited
Paroz v Paroz  QSC 488, cited
Re Colina; Ex parte Torney (1999) 200 CLR 386, considered
Wood v Staunton (No 5) (1996) 86 A Crim R 183, considered
M Copley QC for the applicant
PJ Callaghan SC for the respondent
Official Solicitor to the Crime and Misconduct Commission for the applicant
Robertson O’Gorman for the respondent
MARGARET WILSON J: The applicant is the Acting Director, Crime Hearings and Legal Services of the Crime and Misconduct Commission. He seeks an order that the respondent be committed to prison or otherwise punished for contempt of the presiding officer who conducted a Commission hearing at which the respondent refused to answer questions asked of him.
On 30 January 2013, the CMC’s Crime Reference Committee made a specific referral to the CMC for investigation of the murder of one [name of the deceased] at [place] on or about [date]. The respondent is the brother-in-law of the deceased.
On 1 February 2013, the Assistant Commissioner, Crime, as delegate of the Chairperson of the CMC, authorised the holding of investigative hearings in relation to the murder.
On 5 February 2013, an attendance notice was issued requiring the respondent to attend hearings to give evidence relating to the subject matter of the investigation. The respondent attended the hearing on 12 February 2013. He was legally represented. The presiding officer informed him of his rights and obligations. He was informed that he had no right to remain silent unless he had a reasonable excuse. He was informed that he had no privilege against self-incrimination but that he would be, and he ultimately was, given a blanket immunity in respect of any subsequent use of evidence in any criminal proceedings against him.
The respondent gave evidence on 12 and 13 February 2013.
On 24 April 2013, the Acting Assistant Commissioner, Crime, as delegate of the Chairperson, authorised the applicant to conduct closed hearings in relation to the investigation. The hearing resumed on 2 May 2013, when the respondent was again informed as to his rights and obligations as a witness. Then it was adjourned to 29 May 2013, when the hearing resumed. Again, the respondent was legally represented.
During the hearing, the respondent agreed that he had taken cash in the sum of approximately $1.8 million from a safety deposit box which was registered in his name. He said the cash had been deposited there by the deceased. He said he removed it so that police could not confiscate it. He said he was not willing to say anything further about the matter.
Eventually, the applicant, who was the presiding officer, put the following question to the respondent, “Mr… where is the money that you removed from the reserve vault on the 8th of January and the 22nd of April 2013?” The respondent said, “I’m not prepared to say.”
The refusal to answer a question in such circumstances constitutes both an offence and contempt of the presiding officer.
By s 190 of the Crime and Misconduct Act 2001, a witness at a commission hearing must answer a question put to him at the hearing by the presiding officer. He is not entitled to remain silent or to refuse to answer on the ground of privilege, other than legal professional privilege. A penalty may be imposed for not answering a question in such circumstances, the maximum being 85 penalty units or one year’s imprisonment.
By s 198(1)(c) of that Act,
“A person is in contempt of the presiding officer conducting a commission hearing if the person—
…(c) at the hearing, contravenes a provision of this Act relating to the hearing.”
Section 199, to which I will turn shortly, is headed “Punishment of contempt”.
Importantly, by s 200(1),
“If conduct of an offender is both contempt of the presiding officer conducting a commission hearing and an offence, the offender may be proceeded against for the contempt or for the offence, but the offender is not liable to be punished twice for the same conduct.”
For the purposes of that section “offender” means
“a person guilty, or alleged to be guilty, of contempt of the presiding officer conducting a commission hearing.”
I mentioned s 199. Pursuant to that section,
The presiding officer may certify the contempt in writing to the Supreme Court (the court).
- The Bail Act 1980 applies to the proceeding for the contempt started by the certification in the same way it applies to a charge of an offence.
- The court must inquire into the alleged contempt.
- If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court.
- The Uniform Civil Procedure Rules 1999 apply to the court’s investigation, hearing and power to punish, with necessary changes.
The presiding officer’s certificate of contempt is evidence of the matters contained in the certificate.”
On 29 May 2013, the applicant issued a certificate of contempt against the respondent pursuant to s 199(2) of the Crime and Misconduct Act. In the certificate the applicant stated –
“28. I am satisfied that there is evidence that the witness is in contempt of the presiding officer conducting a CMC hearing in that, at a CMC hearing the witness failed to answer a question put to the witness by me, the presiding officer.”
The applicant then certified the contempt to the Court.
The matter has come before the Supreme Court on an application filed pursuant to Division 3 of Chapter 20 of the UPCR. The contempt is admitted, and the issue for determination is the appropriate penalty.
Senior counsel for the applicant submitted that the appropriate penalty is eight to 10 months imprisonment. Senior counsel for the respondent submitted that the appropriate penalty is seven months imprisonment partially suspended.
Factors relevant to the assessment of proper punishment for contempt of this type were considered by Justice Dunford in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. His Honour set out the following not-exhaustive list of relevant factors:
(1)the seriousness of the contempt proved;
(2)whether the contemnor was aware of the consequences to himself of what he did;
(3)the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime;
(5)the reason for the contempt;
(6)whether the contemnor has received any benefit by indicating an intention to give evidence;
(7)whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor;
(9)general and personal deterrence; and
(10)denunciation of the contempt.
As senior counsel for the applicant submitted, the refusal to answer a question at an investigative hearing into a murder is a serious contempt. The respondent was legally represented, and he had been informed of his rights and obligations by the presiding officer. The deceased had a substantial criminal history, and there is evidence that he was involved in the illicit drug trade. He had been committed for trial on offences relating to the unlawful possession of 176 grams of heroin and possession of $32,000 suspected of having been used in connection with the commission of a drug offence, as well as assaulting or obstructing police. As a result of the respondent’s contempt, the CMC was not provided with information as to the whereabouts of a large sum of money, and it was denied the opportunity to forensically examine the money and any packaging associated with it.
The respondent’s explanation for not answering the question is that he wanted the money to be available for his sister’s children. His sister, herself a drug addict, was the deceased’s partner and the mother of his children.
The respondent was aged 31 at the time. He is now 32.
He gave evidence over four days, including some evidence about the packaging of the money. He was cross-examined at length about the deceased’s drug activities. There is no evidence to suggest that he was involved in the homicide of the deceased.
The respondent is a carpenter by trade.
He has a criminal history from 1998, although he has never before been actually incarcerated. In 2004, he was dealt with for producing and possessing dangerous drugs. No conviction was recorded. He was sentenced to 12 months probation and 200 hours community service. In 2011, he was dealt with for possessing dangerous drugs. A conviction was recorded and he was sentenced to 12 months probation. There are other comparatively less serious offences on his criminal history.
In relation to the contempt, the respondent has been in custody on remand since 29 May 2013, a total of 33 days.
On 30 May 2013, he was charged with an offence arising out of other conduct and remanded in custody. Assuming there is power otherwise to do so, in the circumstances the Court could not declare the time already served as time served under any period of imprisonment imposed as a penalty for the contempt.
Senior counsel for the respondent tendered a bundle of references relating to the respondent. I note his strong commitment to family, including his sister and her children.
What are the powers of the Court in punishing someone for contempt? Part 7 of chapter 20 of the UCPR is headed “Contempt”.
Division 1 contains some preliminary matters.
Division 2 (rr 922 to 924) deals with contempt in the face or hearing of the Court. Pursuant to that division, an alleged contemnor may be brought before the Court and orally informed of the contempt charged. He would then be asked to show cause why he should not be dealt with for contempt, and after hearing him the Court would decide the matter in any way it considered appropriate and make any order for punishment or discharge.
Division 3 (rr 925 to 928) provides an alternative way of dealing with contempt, namely, by an application. Rules 925 and 926 are as follows:
925 Application of Division 3
- This division applies to the following contempts—
- contempt constituted by failure to comply with an order of the court or an undertaking given to the court;
- contempt committed in the face of the court;
- any other contempt of the court;
- contempt of another court.
- For a contempt committed in the face of the court, the procedure under this division is an alternative to the procedure under division 2.”
Rule 926 sets out the procedure for filing an application with supporting material.
Division 4 (rr 929 to 932) is headed “General”. 929 relates to a warrant for the arrest or detention of a person under part 7. Rules 930 and 931 deal with punishment. They are as follows:
- This rule applies if the court decides that the respondent has committed a contempt.
- If the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992.
- If the respondent is a corporation, the court may punish the respondent by seizing corporation property or a fine or both.
- The court may make an order for punishment on conditions, including, for example, a suspension of punishment during good behaviour, with or without the respondent giving security satisfactory to the court for good behaviour.”
Rule 931 is headed “Imprisonment”. It provides:
“(1)An order for imprisonment of the respondent may specify the prison in which the respondent is to be imprisoned.
(2)If a respondent is imprisoned for a term, the court may order the respondent’s discharge from prison before the end of the term.”
Finally, r 932 empowers the Court to make a costs order.
In Re Colina; Ex parte Torney (1999) 200 CLR 386 at page 428 paragraph , Hayne J said,
“Although I accept that it is right to speak of an ‘offence’ of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law. As was said in Hinch v Attorney-General (Vic) (No 2) (1987) 164 CLR 15 at 89,
‘Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the Court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.’”
Justice Hayne continued,
“The power to punish for contempt is an inherent power of courts charged with ‘the function of superintending the administration of justice.’ It is a power that is invoked sparingly, but in a very wide variety of circumstances. There are, in that sense, many forms of contempt. There is no single ‘offence’ of the kind that the criminal law knows.”
At paragraph 112, his Honour described “the cardinal feature” of the power to punish for contempt in these terms:
“…that it is an exercise of judicial power by the courts, to protect the due administration of justice. And that would still be so even if, contrary to the position with other offences, the courts had power to review the exercise of such prosecutorial discretions in a case of contempt. The function that is exercised when a court proceeds against an alleged contemnor is not one to be exercised or controlled by the executive.”
As has often been commented, contempt is sui generis. However, as Justice Hayne observed, the description “offence” is often used in relation to it, and as senior counsel for the applicant pointed out, the Criminal Code Act 1899 speaks of “the offence commonly known as contempt of court.” (s 8)
Traditionally, a distinction has been drawn between criminal and civil contempts, although in more recent times that distinction has been criticised. In any event, it is now clearly established that all contempts must be proved beyond reasonable doubt.
That there is a distinction between contempt and an offence in the usual sense is reflected in the Crime and Misconduct Act itself. By s 190, a penalty up to a prescribed maximum may be imposed for breach of the obligation to answer a question put to the person at the hearing by the presiding officer. Sections 198 and 199 deal expressly with contempt of the presiding officer. Section 200 recognises the distinction between contempt and the commission of an offence, in that it provides that while the same conduct may constitute both contempt and an offence, the offender must be proceeded against for only one of those alternatives and not be punished twice.
That s 200 provides a definition of “offender” for this purpose (in terms I have already set out) is an indication that, at least in the CMC Act, a contemnor is not strictly an offender and contempt is something different from the commission of an offence.
I have already referred to s 199, sub-s (5), which provides that the Bail Act applies to a proceeding for contempt in the same way it applies to a charge of an offence. Again, that is indicative of a distinction between contempt and the commission of an offence.
The Court has power to punish a contemnor who commits contempt of a presiding officer as if the contemnor had committed the contempt in relation to proceedings in the Court. What, then, are the powers of the Court to punish for contempt in relation to proceedings in the Court?
At common law, the Court has an inherent power to impose imprisonment of indefinite duration, or, as more recently recognised in Mudginberri (1986) 161 CLR 98, it may impose a fine. In the United Kingdom, the position has been altered by statute, and under the Contempt of Court Act 1981, the maximum term of imprisonment which may be imposed is two years. In the late 1980s, the Australian Law Reform Commission produced a report in relation to Contempt of Court. It recommended the enactment of a maximum penalty for contempt of court, and further recommended that powers otherwise available to a sentencing Court and provisions relating to parole, remission, and the like ought to apply to contempt proceedings. As far as I know, those recommendations, which of course related only to Federal jurisdiction, have never been enacted.
What is the position in Queensland? I have already referred to rule 930 of the UCPR. In particular, subrule (2),
“If the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992.”
Under s 163 of that Act, there are certain offences for which an indefinite sentence may be imposed. Contempt is not one of them, even if it is an offence within the meaning of that Act. Under section 153A,
“If an offender is convicted of an offence punishable by imprisonment, but the maximum term of imprisonment is not prescribed by law, the maximum term that can be imposed is—
- if the conviction is on indictment— 5 years; or
- if the conviction is not on indictment— 2 years.”
That section relates to an “offender” who is “convicted of an offence”. So, too, do provisions relating to the imposition of fines (ss 44 and 45), probation (ss 90 and 91), community service (ss 100 and 101), intensive correction orders (ss 111 and 112), and imprisonment (s 152).
By s 143 and following, a Court which sentences an offender to imprisonment may in some circumstances wholly or partially suspend the sentence. It may do so only if it records a conviction. And an “offender” is defined in the Penalties and Sentences Act as a person who is “convicted of an offence”.
Rule 930, subrule (2) of the UCPR in its present form was introduced in 2000. There has been at least one case, Paroz v Paroz  QSC 488, in which a penalty for contempt was suspended. So far as counsel’s research has revealed, there has been no case in which the Court has considered whether, on the imposition of imprisonment for contempt, the parole provisions of the Penalties and Sentences Act apply.
Rule 930 does not alter the essential character of contempt as it was described by Justice Hayne in Colvina.
Rule 930(2) merely increases the range of penalties which may be imposed to include community-based orders. In my view, it does not have the effect that a contemnor is, for all purposes, an “offender” within the meaning of the Penalties and Sentences Act.
The wording of r 931(2) may be consistent with the common law under which there was no maximum period for which a contemnor might be imprisoned.
In my view, the maximum term of imprisonment which is provided for in s 153A of the Penalties and Sentences Act is not applicable to contempt.
What, then, of the parole provisions? Rule 930 of the UCPR is expressed in terms that the Court may punish the individual by “making an order that may be made” under the Penalties and Sentences Act. Part 9, division 3 of the Penalties and Sentences Act is headed “Parole”. Section 160A sub-s (1) provides that ss 160B to 160D apply if a Court is imposing a term of imprisonment on an offender for an offence.
Section 160B provides that where an offender is sentenced to three years or less and the offence is neither a serious violent offence nor a sexual offence, the Court must fix a parole release date, subject to certain exceptions which are not presently relevant. Section 160B does not apply if the Court sentences an offender to a term of imprisonment and makes an intensive correction order or a probation order in s 92(1)(b), or an order that the term of the imprisonment be wholly or partially suspended (s 160A(6)).
Senior counsel for the respondent sought a partial suspension of the imprisonment to be imposed on the respondent, calculated by reference to the time he has spent in “pre-sentence custody”, and a notional parole release date calculated as half of the “sentence”.
For the reasons I have already given in discussing the community-based orders which may now be imposed for contempt, I am not satisfied that a contemnor is an offender who has committed an offence within the meaning of the parole provisions.
Similarly, I doubt whether the provision in the Penalties and Sentences Act for declaring time spent in pre-sentence custody (s 159A) could apply in the case of contempt – but that question is hypothetical, given that this contemnor has been on remand for other alleged offending since at least the day after he went into custody. Nevertheless I think it is fair that some allowance be made for the time already served, and I am satisfied that it is within the inherent power of the Court in fixing the penalty for contempt to make allowance for it.
In my view, the applicable range of penalty is seven to eight months imprisonment. What I intend doing is imposing a penalty at the bottom of that range, that is, seven months, and then deducting from that “head sentence” the 33 days already served on remand. On my calculation, that would be a penalty of five months and 27 days imprisonment from today.
I make the following orders:
- I am satisfied beyond reasonable doubt that the respondent was in contempt of the presiding officer on 29 May 2013;
- I order that the respondent be imprisoned for a term of five months and 27 days from today;
- I make no order as to costs;
- I direct that the following material is to be placed in an envelope, which is to be sealed and marked not to be opened without an order of the Court:
- certificate of contempt;
- affidavit of Olivia Eva Kamrowski, filed by leave on 25 June 2013;
- affidavit of Darren Paul Reilly, filed by leave on 25 June 2013;
- outline of submissions on behalf of the applicant;
- outline of submissions on behalf of the respondent; and
- exhibit 1.
- Published Case Name:
O'Connor v Witness G
- Shortened Case Name:
O'Connor v Witness G
 QSC 281
M Wilson J
01 Jul 2013
No Litigation History