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Scott v NPQ[2022] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

Scott v NPQ [2022] QCA 98

PARTIES:

MICHAEL JOHN SCOTT

(appellant)

v

NPQ

(respondent)

FILE NO/S:

Appeal No 15056 of 2021

SC No 9703 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 321 (Williams J)

DELIVERED ON:

27 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2022

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

That order 2 of the orders made on 18 November 2021 be varied by substituting a term of 10 months for the term of 45 days.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – CONTEMPT OF CRIME AND CORRUPTION COMMISSION – SENTENCE – where the respondent was required to attend a hearing of the Crime and Corruption Commission as a witness – where the respondent refused to answer the questions of the presiding officer at the hearing – where the respondent was in contempt of the Crime and Corruption Commission – where the respondent’s contempt was certified to the Supreme Court pursuant to s 199(2) of the Crime and Corruption Act 2001 (Qld) – where the appellant applied to the Supreme Court under s 199(1) of the Crime and Corruption Act 2001 (Qld) for an order punishing the respondent for his contempt – where the respondent was unwilling to purge his contempt – where the respondent was on remand for unrelated offences – whether the sentencing judge erred by taking into account time served on remand in sentencing the respondent – whether the sentence was manifestly inadequate

Crime and Corruption Act 2001 (Qld), s 176, s 180(3), s 190, s 197(5), s 198(1), s 199

Crime and Misconduct Act 2001 (Qld)

Criminal Code (Qld), s 8

Criminal Justice Act 1989 (Qld)

Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld), s 30

Penalties and Sentences Act 1992 (Qld), s 159A, s 161, s 198A

Uniform Civil Procedure Rules 1999 (Qld), r 930(2), r 931(2)

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46, followed

O'Connor v Witness G [2013] QSC 281, considered

O'Connor v Witness I [2014] QSC 82, considered

R v Fabre [2008] QCA 386, distinguished

R v Jones [1998] 1 Qd R 672; [1997] QCA 132, distinguished

R v Pacey (2005) 158 A Crim R 151; [2005] QCA 203, cited

R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, distinguished

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3, cited

Witness J A v Scott [2015] QCA 285, cited

COUNSEL:

A C Freeman with E J Cooper for the appellant

G M Elmore for the respondent

SOLICITORS:

Crime and Corruption Commission for the appellant

Ashkan Tai Lawyers for the respondent

  1. [1]
    SOFRONOFF P:  In October 2020 an authorised official of the Crime and Corruption Commission approved an investigation into certain criminal activity.[1]  The appellant was the presiding officer at a hearing of the Crime and Corruption Commission to inquire into the circumstances of a murder that arose from that investigation.  The respondent was a witness who was required to attend the hearing and on 23 July 2021 he duly attended together with his legal representative.[2]
  2. [2]
    The appellant explained to the respondent that he was not required to answer a question if he had a reasonable excuse.[3]  The respondent acknowledged that he understood what he had been told.[4]  He made an affirmation to tell the truth.[5]  The appellant then made an order under s 197(5) of the Crime and Corruption Act 2001 (Qld) declaring that any answers that the respondent might give would be regarded as having been made despite objection that the answers might incriminate him and that, accordingly, his answers could not be used against him in any criminal proceedings.  The respondent said that he understood.[6]  The appellant then made a non-publication order pursuant to s 180(3) of the Act in relation to the respondent’s evidence.[7]
  3. [3]
    After answering questions directed to eliciting his date of birth, his recent arrest, his current imprisonment and his family circumstances there was the following:[8]

“CA Okay.  What’s your mother’s name?

W I choose not to answer any more questions here today.  I’m well aware that it is an offence under the Act of all that sort of stuff, I would choose that I’m not interested in answering any further questions.

PO All right, I’ll, I’ll – thanks [counsel assisting], I’ll take over from here.  I just want to clarify with you, that question about what your mother’s name, it’s not a particularly important question if that’s-

W -I don’t really mind, I just don’t want to answer any more questions.

PO All right.  The.  way hearings generally work is that witnesses are asked fairly general background: questions before we get to the nitty gritty so to speak, you’re already indicating an intent not-

W -I have no intention-

PO -to answer-

W -to answer-

PO -questions.-

W -anymore questions.

PO All right. Well I’m going to do my best to persuade you to a different course of action because if I don’t try-

W -I’m already in incarcerated-

PO -I’m not doing my job here.

W I’m already incarcerated I’m already, I’m well aware of the consequences of this matter, so I have no intention of answering any further questions here today.”

  1. [4]
    A little later there was this:[9]

“W -I’m willing to be prosecuted for the offence, I am not-

PO -But that’s not really —sorry this isn’t your choice, this is my choice then.

W I, I – it is my choice not to answer any more questions.

PO Okay.  Just, just I’m just give-I’m trying to give you some information.

W I’m well aware.”

  1. [5]
    The appellant recited the content of s 199(8) and (8A) of the Act to the respondent and there was then the following exchange:[10]

“PO This would be of course, your first contempt.  I’m not suggesting the court would impose a sentence of that length, that’s not the typical sentence that the courts have b (sic) been imposing but you could expect to be given a substantial period of imprisonment and the courts would craft that I would expect in such a way that because you’re presently on remand for the drug trafficking matters, that the time you spend for the contempt would not count as time served in pre-sentence custody for the drug matters.  So that you’re doing – going to have to do extra time.  I want to make that very clear to you that you understand that that-

W -Yep.-

PO -it’s not a double up that because you’re in prison anyway the court’s order won’t matter or make any practical different to you.

W Yeah.

PO You understand that?

W I do.

PO All right. Now is there anything I can say that can persuade you to take a different course of action because frankly what, the pathway we’re about to head down represents the failure of the hearing and I don’t want that, I’d much prefer to elicit from you, obtain from you whatever information you’ve got about this murder.

W No.

PO Nothing I can say at all?

W No.”

  1. [6]
    After some discussion at the hearing between the appellant and counsel assisting as well as with the respondent’s legal representative, the appellant said:[11]

“PO … I’m assuming you’ve, you’ve followed the legal argument and discussion that’s just occurred.  I am satisfied that you have committed contempt of me for failing to answer a question that I’ve put to you without any claimed lawful or reasonable excuse.

W Yep.

PO And I’m satisfied that rather than simply let you be prosecuted for the offence under s.190 of the Crime and Corruption Act before a magistrate in a Magistrates Court, it’s appropriate given the whole circumstances that were set out on the record by counsel assisting, that I certify you to the Supreme Court of Queensland.

W Yep.”

  1. [7]
    The appellant certified the contempt to the Supreme Court pursuant to s 199(2) of the Act on 29 July 2021[12] and applied to the Court on 23 August 2021 under s 199(1) of the Act for an order punishing the respondent for his contempt.  At the hearing of the application on 5 November 2021, the respondent admitted his contempt.  The respondent’s counsel informed Williams J, the presiding judge, that his client was unwilling to purge his contempt.[13]
  2. [8]
    The Commission’s investigation concerned the murder of a man in 2020.  It is sufficient for the purposes of this judgment to state that the circumstances of that murder meant that it was a serious crime of its kind and that police were justified in concluding that a successful investigation required the use of a confidential compulsory questioning of the respondent under the Act.  At the hearing at first instance, a police officer gave evidence that respondent’s refusal to answer questions had severely impeded the investigation.[14]  That evidence was not challenged although counsel for the respondent submitted at first instance, without having put the proposition to the police officer, that his client’s evidence would have been “peripheral and [his contempt] didn’t seriously impede the continuance of that investigation”.[15]  Williams J found that, while some of the evidence that the respondent was expected to give “could be classified as ‘peripheral’”,[16] the respondent was a person who would be likely to be able to assist the investigation in respect of a number of lines of inquiry and that his refusal to answer questions had impeded the investigation.[17]
  3. [9]
    At first instance, counsel for the appellant submitted that an appropriate penalty was in the upper part of the range of six to 12 months.[18]  The respondent submitted that it would be appropriate to impose a term of imprisonment of between six to nine months, but at the lower end of that range.[19]
  4. [10]
    The respondent had been arrested in March 2021 on a drug trafficking charge unrelated to the Commission’s investigation or to his contempt.[20]  He was remanded in custody on that charge on 11 March 2021.  Subsequently, the respondent was also remanded in custody on several less serious charges.[21]  The respondent committed the contempt on 23 July 2021.  The appellant adjourned the further hearing and the respondent remained in custody on remand on the trafficking charge and the other charges.  The appellant’s application came on for hearing on 5 November 2021.  Williams J adjourned the hearing and resumed it to hear further submissions on 11 November 2021.  Her Honour gave judgment on 18 November 2021.
  5. [11]
    The respondent’s counsel referred her Honour to R v Jones,[22] R v Fabre[23] and R v Skedgwell.[24]  He submitted that those cases stood for the proposition that the fair administration of justice favours taking into account time that an offender has already served on remand, albeit for other offences, when considering what is a just sentence and that such time should be taken into account on sentence at the earliest opportunity.
  6. [12]
    That is, indeed, the orthodox approach when sentencing an offender for a criminal offence.  The approach has the advantage that, if the offender is subsequently acquitted of the pending charges, it will be unnecessary to reopen the sentence to take into account time served on remand for the second offence.  If the offender is convicted on the pending charges, it should be simpler for the judge sentencing the offender to impose a cumulative or partly cumulative sentence if that is otherwise warranted and, otherwise, to determine a just sentence in the absence of any factor relating to pre-sentence custody.  How pre-sentence custody is to be taken into account, whether on the first sentence or on the second sentence, will depend upon the circumstances of the particular case and it will not always be right to take time served into account.[25]
  7. [13]
    This aspect of sentencing originated in a common law principle that allowed a sentencing judge to take pre-sentence custody arising from any cause into account when sentencing.  Sometimes that resulted in a reduction of the head sentence.  Sometimes that resulted in an earlier parole eligibility date than would otherwise have been ordered.  When the Penalties and Sentences Act 1992 (Qld) was passed, s 161 provided that pre-sentence custody that has been served for the offence for which the offender is about to be sentenced, and for no other reason, had to be treated as time served unless the Court otherwise ordered.  The terms of s 161 meant that time served before sentence on remand for the current offence as well as for some other purpose did not fall within s 161.  However, custody of that kind could still be taken into account in accordance with the earlier common law principle, which was not affected by the Penalties and Sentences Act.
  8. [14]
    Section 159A of the Penalties and Sentences Act now provides that any time for which the offender was held in custody “in relation to the proceedings for the offence” must be taken to be imprisonment served under the sentence unless the Court otherwise orders.  The section thus permits a judge to declare a period of pre-sentence custody although there may be reasons for custody other than remand in relation to the current offence.
  9. [15]
    The rationale that informs the exercise of the sentencing discretion in these respects is part of the totality principle and that principle is itself informed by the requirement that a sentence be proportionate to the relevant offending.
  10. [16]
    The respondent’s counsel, Mr Feely, submitted to her Honour that all of the respondent’s time had been in custody until being sentenced for his contempt ought to be taken into account in arriving at his sentence.
  11. [17]
    The appellant’s counsel, Ms Price, submitted that the period of custody served by the respondent before he committed the contempt had nothing to do with his contempt[26]  and it was common ground that the respondent would remain in custody on remand in relation to those offences for some further time.  In those circumstances, Ms Price submitted that to take into account the respondent’s pre-sentence custody would result in a sentence with little punitive effect.[27]  Ms Price further submitted that such a sentence would provide little incentive for the respondent to purge his contempt.  Further, it would provide little incentive for a person in similar circumstances who is considering committing a contempt of the Commission in the future to comply with the obligation to give evidence.[28]
  12. [18]
    Williams J concluded:[29]

“In all of these circumstances, I consider the appropriate nominal sentence in this case is a period of 10 months imprisonment.

In imposing this penalty I take into account that the applicant has served a period of approximately 255 days, being approximately eight and a-half months in custody on remand in respect of charges of trafficking in dangerous drugs.  This time is not declarable in respect of the sentence imposed in respect of the contempt.

Consequently, the actual sentence imposed today should be a period of the balance, which is 45 days being the equivalent of 1.5 months.”

  1. [19]
    Her Honour then made the following order:[30]

“I order that you be imprisoned for a term of 45 days from today to be served wholly in a corrective services facility; account being taken of the full period you have already been in custody since 11 March 2021.”

  1. [20]
    The appellant has appealed on the ground that the sentence was manifestly inadequate.  The appellant also appeals on the ground that Williams J was in error in taking into account the entirety of the respondent’s pre-sentence custody.  This appeal really turns upon that second ground.
  2. [21]
    Contempt of court is a common law offence that has been preserved by s 8 of the Criminal Code (Qld)Uniquely for offences that do not involve violence or sexual assault, offences involving an interference with the administration of justice are said generally to require an immediate custodial sentence unless the circumstances are wholly exceptional because they “[attack] the very heart of the criminal justice system”.[31]
  3. [22]
    The form of contempt for which the respondent was punished was not a common law contempt of court because the tribunal constituted by a commission hearing under the Act is not a court.  Chapter 4 Part 3 of the Act created a new, statutory form of contempt.  To understand the place of this novel concept, albeit one that is based upon an ancient idea, it is necessary to have an understanding of some of the functions of the Crime and Corruption Commission.
  4. [23]
    One of the purposes of the Act is to “combat and reduce the incidence of major crime”.[32]  That purpose is to be achieved, inter alia, by conferring upon the Commission “investigative powers, not ordinarily available to the police service, that will enable the commission to effectively investigate major crime and criminal organisations and their participants”.[33]  Thus, the Commission has a function, termed its “crime function”, to investigate major crime.[34]  The “reference committee”, a body established by the Act,[35] has the power to refer a major crime to the Commission for its investigation.[36]  This might involve referring a particular incident[37] of major crime or it might involve a major crime of a particular kind.[38]  The Committee made a reference in 2020 and, pursuant to that reference, a particular investigation was authorised to be conducted on 30 October 2020.[39]
  5. [24]
    Section 176 of the Act authorises the Commission to hold a hearing in relation to any matter relevant to the performance of its function.  The hearing is to be conducted by certain specified persons[40] and the appellant is one of these.  Generally, such hearings are not open to the public.[41]
  6. [25]
    In aid of such hearings, the Commission is empowered to require a person to attend a hearing to give evidence.[42]  A person is not entitled to refuse to answer a question on the ground of privilege other than legal professional privilege.[43]
  7. [26]
    Section 190 of the Act makes it an offence punishable by five years’ imprisonment or 200 penalty units for a witness at a hearing to refuse to answer a question put to the person at the hearing by the presiding officer unless the person has a reasonable excuse for the refusal.  Notwithstanding the creation of this offence, Chapter 4 Part 3 of the Act establishes a distinct regime whereby such a refusal might also constitute “contempt of the presiding officer”.[44]
  8. [27]
    Section 198(1)(c) of the Act provides that a person is in contempt of the presiding officer conducting a commission hearing if the person “contravenes a provision of this Act relating to the hearing”.  A failure of a person, under s 190(1) to answer a question without a reasonable or lawful excuse, may constitute a contempt of that kind.[45]  A presiding officer may certify in writing a contempt to the Supreme Court.[46]  If the presiding officer expresses an intention at the hearing to certify the contempt, he or she may direct a police officer to detain the person for the purpose of bringing the person before the Court to be dealt with.[47]
  9. [28]
    If the Court is satisfied that 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”.[48]  If the certified contempt is constituted by the refusal of a person, under s 190, to answer a question, “the court must punish the person in contempt by imprisonment”.[49]
  10. [29]
    The ordinary criminal statute law usually provides for a maximum penalty that may be imposed for an offence but it is rare for such a statute to provide a maximum penalty for an offence and also to provide for an increased maximum if the offender has previously been convicted of the same offence.  In this respect, the Act is unusual because it provides that the maximum punishment for a person’s first contempt is 10 years’ imprisonment.  It is 14 years for a second contempt and for a third or subsequent contempt it is life imprisonment.[50]  Also a punishment imposed for a “second contempt” or a “third or subsequent contempt” must, in the absence of exceptional circumstances, be for a longer term than was imposed for the immediately preceding contempt”.[51]  Moreover, the “second contempt” and the “third or subsequent contempt” may “be the same hearing”[52] and such second, third or subsequent contempt “may be the same failure by the person” to answer a question,[53] although in each case the subject matter of the hearing has to be the same.[54]
  11. [30]
    The effect of these provisions for an ever-increasing punishment, it seems, is that a contemnor can be required once again to appear at a hearing and can be asked the same question that was the subject of the early refusal to answer.  Each such refusal would constitute a fresh contempt for which the Act provides an increased penalty.
  12. [31]
    Section 199(8D) provides that a person punished by imprisonment may be brought before the Commission to ascertain whether the person “wishes to purge the contempt”.  Section 199(8E) provides that a person imprisoned for a contempt may be brought before the Supreme Court on the Commission’s, or the person’s, application for a declaration that the person has purged the contempt.  The Court may order the person’s discharge from prison “before the end of the term” if it is satisfied that the person has purged the contempt.[55]
  13. [32]
    A term of imprisonment must be ordered to be served wholly in a corrective services facility.[56]
  14. [33]
    The Act applies the Uniform Civil Procedure Rules 1999 (Qld) to the “court’s investigation, hearing and power to punish, with necessary changes”.[57]
  15. [34]
    All contempts concern the Court’s need to assert its authority in cases in which a person has interfered with the due administration of justice.  Some instances of interference are singular, such as a publication that tends to prejudice a fair trial.  Other instances are continuing, such as a persistent disregard of an undertaking to the Court or a persistent refusal to answer questions at a hearing.  The response of a court will vary accordingly.  A just sanction requires the vindication of the authority of the Court against the contemnor’s defiance of that authority.  Thus, it would be appropriate, depending on the circumstances, to punish the contemnor by a fine or imprisonment for a fixed term for a singular contempt.
  16. [35]
    A continuing or persistent contempt must be treated differently.  A contempt of that kind also requires an order that vindicates the authority of the Court, but vindication would be best served by compelling the contemnor’s obedience to the Court’s order that the contemnor has sought to defy.  Consequently, while a punitive element is an inevitable component of any punishment of contempt, an order that aims to vindicate the Court’s authority in the face of persistent defiance of that authority also requires a coercive element.
  17. [36]
    The order made in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd[58] was that kind of order.  The Federal Court had granted an interlocutory injunction to restrain the appellant union and a number of its officers from imposing a ban on the provision of goods and services to the respondent at its abattoir or from setting up any picket line in its vicinity.  The union breached the order by continuing to man a picket line.  The Court made an order fining the union $10,000 for breach of the order and a further fine of $2,000 per day for so long as the breach continued.  The union nevertheless continued to maintain its picket line and paid neither the fine of $10,000 nor the daily fines and one of its officers announced that the union would not pay the fine.  The Court then ordered that a writ of sequestration should issue against the union.  The union’s appeal to the Full Court of the Federal Court was dismissed and it appealed to the High Court.  The case was largely concerned with the distinction between criminal contempt and civil contempt and whether, in terms of such a distinction, a fine could be imposed for a civil contempt.  That distinction, if it continues to be regarded as relevant,[59] is not relevant to the present appeal.  The significance of Mudginberri to this case lies in the recognition by the majority[60] that punishment for a contempt which involves wilful disobedience, when it is presently existing and continuing in conformity with the contemnor’s attitude of determined disobedience, requires a coercive as well as a punitive penalty.[61]
  18. [37]
    In such cases, courts have taken strong measures in order to coerce compliance with an order of the Court.  An individual contemnor may be imprisoned until the contempt is purged.  A committal of that kind is conditional; it remains in force until the contempt comes to an end or a further order is made.  As soon as the contempt is purged, the offender is entitled to be released ex debito justitiae.[62]  Resort to these considerable powers imposes a heavy responsibility upon a court confronted with a determined challenge to its authority and the propriety of their exercise cannot be measured solely by reference to procedures attending the prosecution of ordinary breaches of the law.  Contempt of court is a distinctive offence attracting remedies that are sui generis.  What is required of the chosen remedy is “that it be effective, no more but no less”.[63]
  19. [38]
    In Mudginberri, the imposition of a daily fine was held to be within the available range of remedies and such a punishment was appropriate in the circumstances of that case to secure compliance with the Court’s order.  That kind of disobedience was not prone to mitigation short of complete withdrawal.[64]
  20. [39]
    When considering Mudginberri in his judgment in Witham v Holloway,[65] McHugh J observed that a once-and-for-all penalty would seldom work to coerce a contemnor to comply with an order and it would merely punish the contemnor while leaving the breach, if it is remediable, unremedied.  His Honour observed that if compliance with an order is no longer possible, or if the order has been complied with after breach, the imposition of a term of imprisonment or a fine is purely punitive while the orders made in Mudginberri were both punitive and coercive.[66]
  21. [40]
    The conclusion to be drawn is that it is important, as always when considering punishment, to bear in mind the purpose of the punishment.  In the case of a contempt of court, the purpose to be served may be wholly punitive or it may require the inclusion of a coercive element.
  22. [41]
    As I have said, the Act contains a wholly statutory regime for the maintenance of the Commission’s authority at the hearings that it conducts.  This regime mirrors the common law of contempt of court, but it does so in a particular way.
  23. [42]
    The genesis of the current legislation is the Criminal Justice Act 1989 (Qld)That statute established the Commission and empowered it to conduct hearings which witnesses could be compelled to attend to answer questions.  It provided that a refusal by a witness to answer a question without a lawful excuse rendered that person guilty of a contempt.[67]  Like the present statute, the original Act provided for the certification of the contempt.  It conferred power on the Supreme Court to “punish or take steps for the punishment of the person in like manner and to the like extent as if the person had committed the contempt in or in relation to proceedings in the Supreme Court”.[68]  No particular punishment was prescribed.  Section 199(9) of the Act picked up the UCPR provisions governing contempt proceedings.  Rule 930(2) of the UCPR applied the Penalties and Sentences Act to punishment of contempt.  Rule 931(2) of the UCPR empowered the Court to discharge an offender from prison before the end of the term that had been imposed.  This provision is consistent with the way in which a coercive order might be administered.
  24. [43]
    The Criminal Justice Act 1989 (Qld) was repealed and replaced by the Crime and Misconduct Act 2001 (Qld).  The new Act continued the same approach to contempt.[69]
  25. [44]
    The position of punishment of contempt under the Act was radically altered by amendments made by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013.  Section 30 of the amending Act inserted specific penalties for, inter alia, a contempt that was constituted by the refusal of a witness at a hearing to answer a question.[70]  Section 199(8B) of the Act now provided that the penalty that a court had to impose was, for an offender’s first contempt, a term of imprisonment at the Court’s discretion; for a second contempt, a minimum term of imprisonment of two years and six months; and, for a third or subsequent contempt, a minimum term of five years imprisonment.  Sections 199(8E) and (8F), also introduced under the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, made specific provision for the release by the Court of an offender who has purged the contempt.
  26. [45]
    In 2015, the government established a task force[71] to review “antiorganised crime legislation” that had been passed in 2013.  That legislation included the amendments to the contempt provisions in the Act discussed above.  The task force acknowledged that the punishment for contempt must be “sufficiently strong to encourage compliance with the Act and/or the contemnor to purge the contempt”.[72]  Accordingly, one of its recommendations was to repeal the mandatory minimum sentencing regime in ss 199(8A) to (8B) of the ActIt recommended the insertion of “an escalating, tiered maximum penalty[73] scheme”.[74]  That recommendation was one of 60 recommendations which included recommendations to amend various pieces of legislation that were germane to organised and other serious forms of crime.
  27. [46]
    It follows that any consideration of the nature of punishment in this appeal gives rise to a question of statutory interpretation, albeit one that is informed by the common law of contempt of court.  The issue is not a straightforward one of punishment under the Penalties and Sentences Act as supplemented by the common law of sentencing, although those parts of the law remain relevant.  As the majority in Mudginberri, that contempt of court is a distinctive offence attracting remedies which are sui generis.
  28. [47]
    The provisions in the Act which created a statutory offence of contempt of a presiding officer is, a fortiori, unique.  The statutory incidents of the new form of contempt against an officer of a government entity distinguish it from offences of the kind found in the Criminal Code of Queensland.  The provisions are also different from the common law offence of contempt of court, in two respects.
  29. [48]
    First, the common law of sentencing for contempt of court pays strict regard to the principle that a person must not be twice punished for the same offence.  An issue about the application of the principle can arise in a case in which a person breaches a court order and then, after being punished and without purging the contempt, is once more invited to comply with the order.  A second refusal to comply would generally not be regarded as a second instance of contempt of court but as a continued manifestation of the original contempt – for which the punishment has been satisfied.  In Witness JA v Scott,[75] the appellant was required to answer questions at a hearing of the Commission.  He refused to answer certain questions.  A Supreme Court judge found that this refusal was a contempt under s 198 of the Act and imposed a term of imprisonment of five months and 27 days.  The appellant served that sentence and, after his release, was once again required to attend a hearing on the same matters.  Once again, he refused to answer the same question.  A Supreme Court judge found that this was a “second contempt” within the meaning of s 199(8B) of the Act in its then form.[76]  The expression “second contempt” was not then defined in the Act as it is now.  The judge sentenced the appellant to a second term of imprisonment.  The Court of Appeal set aside the orders made and discharged the appellant upon the ground that the appellant’s contempt had been his refusal to furnish information.  His conduct when he appeared at the hearing for the second time did not constitute a new contempt of the presiding officer.  It constituted a continuation of the appellant’s refusal to furnish information, something for which he had already been punished.[77]
  30. [49]
    The 2016 amendments to the Act inserted definitions of the relevant expressions as follows:

“In this section—

first contempt, of a person, means a failure by the person of a type mentioned in subsection (8A).

second contempt, of a person, means a failure by the person of a type mentioned in subsection (8A) that takes place in relation to a hearing dealing with the same subject matter as that dealt with in the hearing in which the person’s first contempt was certified and for which the person has served a term of imprisonment imposed under subsection (8B).

third or subsequent contempt, of a person, means a failure by the person of a type mentioned in subsection (8A) that takes place in relation to a hearing dealing with the same subject matter as that dealt with in the hearing in which the person’s first contempt or other preceding contempt was certified and for which the person has served a term of imprisonment imposed under subsection (8B).”

  1. [50]
    These definitions, it seems, are intended to overcome the effect of the decision of the Court of Appeal in Witness JA v Scott so that a second instance of refusing to answer the same question after a recalcitrant witness has once refused and has been punished, will constitute a fresh punishable offence.[78]  That would be in accordance with recommendation 45 of the task force, namely, to create an escalating, tiered maximum penalty scheme to punish for conduct amounting to contempt of the Crime and Corruption Commission (and including the notion that a person can purge their contempt).  Rule 931(2) of the UCPR, reflects the principle of the law of contempt by providing that if a person has been sentenced to a term of imprisonment for contempt, the “court may order the [person’s] discharge from prison before the end of the term”.  As has already been mentioned, the Act makes specific provision for the discharge of a contemnor who has been punished under that Act.  Section 199(8D) to (8F) provide as follows:[79]

“(8D) A person punished by imprisonment under this section may be brought before the commission to ascertain whether the person wishes to purge the contempt.

(8E) A person imprisoned under this section may be brought before the Supreme Court, on the person’s or the commission’s application, for a declaration that the person has purged the contempt.

(8F) The court may order the person’s discharge from prison before the end of the term—

  1. (a)
    if it is satisfied that the person has purged the contempt; and
  1. (b)
    it has heard the commission’s submissions in relation to the application and the person’s discharge from prison.”
  1. [51]
    The purpose of all these provisions is to reflect one of the important purposes of punishment for certain kinds of contempt of court: coercion of a defendant to secure obedience to a court order.  This coercive element does not exist under the common law of sentencing or under the Penalties and Sentences Act.[80]  Those bodies of law recognise personal and general deterrence against future offending but the coercion of an offender to undo a past offence has no place in those spheres.
  2. [52]
    Chapter 4 Part 3 of the Act emphasises this coercive element of sentencing for contempt of a presiding officer.  Section 198A permits the immediate arrest and detention of an alleged contemnor.  Section 199(8A) obliges the Supreme Court to impose a sentence of imprisonment upon a person found guilty of contempt.  Section 199(8C)(b) provides that the term of imprisonment imposed for a second or subsequent contempt must be longer than that which was imposed for the immediately preceding contempt.  Section 199(8C)(a) requires any such term of imprisonment to be served wholly in a corrective services facility, thus excluding the community-based order found in the Penalties and Sentences Act.  Under the statute, these ever-increasing punishments can only be ameliorated by purging the contempt: ss 199(8D) and (8E).  Thus, there are many sticks and only a single carrot.  The only justification for the increasing penalties provided for by s 199(8B) is to furnish a powerful incentive for a person considering committing a contempt to submit to authority.
  3. [53]
    The coercive aspect of punishment for contempt pre-existed the enactment of these provisions but the emphasis in the Act upon the coercive purpose in sentencing for contempt of a presiding officer by refusing to give information is not remarkable when one bears in mind the objects of the Act and how those objects are to be achieved.  The objects are to “combat and reduce the incidence of major crime” and to “reduce the incidence of corruption in the public sector”.[81]  These large purposes are to be achieved “primarily by establishing a permanent commission” that is “to have investigative powers, not ordinarily available to the police service, that will enable the Commission to effectively investigate major crime and criminal organisations and their participants” and to “investigate cases of corrupt conduct”.[82]  The legislative judgment which constitutes the foundation for much of the Act must be taken to be that, in the absence of extraordinary statutory powers of investigation, the secrecy that surrounds certain kinds of criminality, as well as official corruption, and the ties of loyalty that often silence potential witnesses, must not be allowed to frustrate efforts to uncover the truth.
  4. [54]
    It is against this understanding of the statute that the exercise of the sentencing discretion in the case has to be considered.
  5. [55]
    Notwithstanding his courteous manner, the respondent’s contempt was a calculated and determined defiance of the authority of the Commission while it was engaged in an important task in the fulfilment of its functions.  He took comfort in his belief that there could be no real consequences for his contempt because, as he put it, “I’m already incarcerated, I’m already, I’m well aware of the consequences of this matter, so I have no intention of answering any further questions here today”.[83]  He refused to say why he had adopted his course of action but he denied that he had been threatened.  It may reasonably be inferred that his contempt is founded on a desire to protect the subjects of the murder inquiry.
  6. [56]
    The appellant pointed out to the respondent that any punishment imposed upon him for a contempt could be expected to be a substantial one and that the time served for his contempt would not count as time served for the other offences if he is convicted of them.  Instead, the punishment for contempt would mean that he was “going to have to do extra time”.[84]  The respondent said that he understood that.[85]
  7. [57]
    At first instance, and on appeal, the respondent relied on two first instance decisions in which pre-sentence custody had been taken into account.  The first of these is O'Connor v Witness G[86] in which Margaret Wilson J doubted that s 159A of the Penalties and Sentences Act applied to a case of contempt but concluded that “it is fair that some allowance be made for time already served”.[87]  The second case is O'Connor v Witness I,[88] in which Applegarth J followed Wilson J’s approach and made allowance for time served but in this particular case the contemnor had been in custody in order to answer the contempt and, but for that, he might have been released on bail for certain other offences.[89]
  8. [58]
    The true position is that pre-sentence custody may be taken into account when punishing a contemnor by imposing a sentence of imprisonment but whether that should be done depends upon the circumstances of the particular case.  In particular, and relevantly for present purposes, when considering a contemnor’s submission that pre-sentence custody should be taken into account to mitigate the length of a proposed sentence of imprisonment, the significance of the coercive element attending the punishment, as well as the need for any sentence for contempt to serve as a general deterrent that can be brought to the attention of future intending contemnors, must also be taken into account.  The terms of the Act require these factors to be taken into account.
  9. [59]
    In my respectful opinion it was an error not to take those two factors into account.  In this case, the consequence of taking full account of time served is that the sentence imposed upon the respondent failed to respond to his challenge that, because he was already in custody, he was immune from any real consequences and was therefore free to repudiate the Commission’s authority.  In O'Connor v Witness I, Applegarth J took pre-sentence custody into account but his Honour did so in a case in which a further six month term of imprisonment still had to be served, in which the six months presentence custody had been served because of the pending contempt charges, and in which, as his Honour noted, the contemnor could, within the six month period, still purge his contempt if he wanted to.
  10. [60]
    In this case, the result of taking into account remand custody for other offences and, in the result, imposing a sentence of 45 days to be served by a person who would be in custody on remand anyway, was to vindicate not the Commission’s authority but, rather the respondent’s challenge to that authority.  It is true that the respondent’s circumstances necessarily blunt both the penal and the coercive effects of any sentence of imprisonment.  Be that as it may, a just punishment is one that contains both those elements to the extent possible.  A just punishment would ensure that, if the respondent is acquitted on the drug charges, he will have served an actual term of imprisonment for the contempt and, if he is convicted and imprisoned, such time will not ameliorate his future sentence.
  11. [61]
    Neither party argued that a sentence of 10 months was inappropriate.  Consequently, for these reasons, I would order that order 2 of the orders made on 18 November 2021 be varied by substituting a term of 10 months for the term of 45 days.
  12. [62]
    McMURDO JA:  I agree with Sofronoff P.
  13. [63]
    BODDICE J:  I agree with Sofronoff P.

Footnotes

[1]  AB at 7.17.

[2]  AB at 6.02.

[3]  AB at 88.40-89.20.

[4]  AB at 89.22.

[5]  AB at 91.25- 92.04.

[6]  AB at 92.06 -92.20.

[7]  AB at 92.20-92.26.

[8]  AB at 93.21-94.11.

[9] AB at 95.22-30.

[10]  AB at 96.15-44.

[11]  AB at 102.29-41.

[12]  AB at 38-50.

[13]  AB at 143.28.

[14]  AB at 135.

[15]  AB at 144.

[16]  AB at 30.09.

[17]  AB at 30.08-30.15.

[18]  AB at 142.11-142.15.

[19]  AB at 143.30-143.32.

[20]  AB at 126.

[21]  AB at 126-127.

[22]  [1998] 1 Qd R 672.

[23]  [2008] QCA 386.

[24]  [1999] 2 Qd R 97.

[25] Fabre, supra at [14]-[16], AB at 157.32-158.03.

[26]  AB at 153.26-153.46.

[27]  AB at 154.09-154.38.

[28]  AB at 155.32-155.36.

[29]  AB at 34.15-24.

[30]  AB at 35.8-10.

[31] R v Pacey (2005) 158 A Crim R 151 at [30]: see also R v Evans [1996] QCA 553 (Perjury); Ross v Commissioner of Police [2019] QCA 96 at [58] (s 205A of the Criminal Code); R v Ensbey [2005] 1 Qd R 159 at [27], [29] (s 129 of the Criminal Code); see also: R v Montgomery [1995] 2 Cr App R 23 at 27; Morris v Crown Office [1970] 2 QB 114 at 125.

[32] Crime and Corruption Act 2001 (Qld), s 4(1)(b).

[33] Crime and Corruption Act 2001 (Qld), s 5(2).

[34] Crime and Corruption Act 2001 (Qld), s 25.

[35] Crime and Corruption Act 2001 (Qld), s 274.

[36] Crime and Corruption Act 2001 (Qld), s 275(a) and s 27.

[37] Crime and Corruption Act 2001 (Qld), s 27(1)(a) (“specific referral”).

[38] Crime and Corruption Act 2001 (Qld), s 27(1)(b) (“general referral”).

[39]  AB at 52.

[40] Crime and Corruption Act 2001 (Qld), s 178(3).

[41] Crime and Corruption Act 2001 (Qld), s 177(1).

[42] Crime and Corruption Act 2001 (Qld), s 82(1)(a)(i).

[43] Crime and Corruption Act 2001 (Qld), s 190(2)(b).

[44] Crime and Corruption Act 2001 (Qld), s 198.  Section 200 provides that an offender may be proceeded against for the offence or the contempt but not both.

[45] Crime and Corruption Act 2001 (Qld), s 198(4).

[46] Crime and Corruption Act 2001 (Qld), s 199(2).

[47] Crime and Corruption Act 2001 (Qld), s 198A(1).

[48] Crime and Corruption Act 2001 (Qld), s 199(8).

[49] Crime and Corruption Act 2001 (Qld), s 199(8A)((a)(iii)) (b).

[50] Crime and Corruption Act 2001 (Qld), s 199(8B).

[51] Crime and Corruption Act 2001 (Qld), s 199(8C)(b).

[52] Crime and Corruption Act 2001 (Qld), s 199(8B)(c)(d).

[53] Crime and Corruption Act 2001 (Qld), s 199(8C)(e).

[54] Crime and Corruption Act 2001 (Qld), s 199(12).

[55] Crime and Corruption Act 2001 (Qld), s 199(8F).

[56] Crime and Corruption Act 2001 (Qld), s 199 (8C)(a).

[57] Crime and Corruption Act 2001 (Qld), s 199(9).

[58]  (1986) 161 CLR 98.

[59] Cf. Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at [74] per Keane JA; but see Witham v Holloway (1995) 183 CLR 525.

[60]  Gibbs CJ, Mason, Wilson and Deane JJ, Brennan J dissenting only on the power to order a daily fine.

[61] Mudginberri, supra at 112-114.

[62] Mudginberri, supra at 114.

[63] Mudginberri, supra at 115.

[64]  Ibid.

[65]  Supra at 541.

[66]  Ibid at 542.

[67] Criminal Justice Act 1989 (Qld), s 3.34(c)(i).

[68] Criminal Justice Act 1989 (Qld), s 3.35(3)(b).

[69]Crime and Misconduct Act 2001 (Qld), s 200.

[70] Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld), s 30.

[71]  The membership of the task force comprised representatives of the Queensland Police Service, the Queensland Police Union, the Queensland Police Commissioned Officers’ Union of Employees, the Department of Premier and Cabinet, the Department of Justice as well as highly experienced senior members of the legal profession.  It was chaired by the Hon Alan Wilson, a retired Supreme Court judge.

[72]  Taskforce on Organised Crime Legislation, Report on Taskforce on Organised Crime Legislation (4 April 2016) at 337.

[73]  Ibid at 337, 356, 416; Italics in the original.

[74]  Ibid at Recommendation 45, Chapter 20.

[75]  [2015] QCA 285 (‘Witness JA v Scott’).

[76]  Section 199(8B) then provided: “The minimum punishment the court must impose is –

(a) For a first contempt – imprisonment for the term decided by the court; or

(b) For a second contempt relating to the same hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was certified – 2 years and 6 months imprisonment; or

(c) For a third or subsequent contempt relating to the same hearing dealing with the same subject matter as that dealt with in at least 2 hearings in each of which the person’s contempt was certified – 5 years imprisonment”.

[77] Witness JA v Scott, supra at 71 per McMurdo J, as his Honour then was.

[78]  The question whether these definitions are effective to achieve that end is not an issue in this appeal and the Court has not heard argument upon it, hence nothing more need be said about it.

[79]  These provisions were inserted in 2013 and were not altered by the 2016 amendments.  The inclusion of these specific provisions in the Act probably excludes the operation of r 931(2) of the UCPR in cases under the Act but it is not necessary to decide that question.

[80] Cf. Chester v The Queen (1988) 165 CLR 611; Fardon v Attorney-General (Qld) (2004) 223 CLR 575.

[81] Crime and Corruption Act 2001 (Qld), s 4.

[82] Crime and Corruption Act 2001 (Qld), s 5.

[83]  AB at 96.10-96.11.

[84]  AB at 96.21-96.22.

[85]  AB at 96.24.

[86]  [2013] QSC 281.

[87]  Ibid at 9.

[88]  [2014] QSC 82.

[89]  Ibid at 24-25.

Close

Editorial Notes

  • Published Case Name:

    Scott v NPQ

  • Shortened Case Name:

    Scott v NPQ

  • MNC:

    [2022] QCA 98

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Boddice J

  • Date:

    27 May 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSC 32106 Dec 2021Application under Crime and Corruption Act 2001 (Qld) s 199; witness refused to answer Presiding Officer’s questions, impeding murder investigation; contempt proved; contemnor unwilling to purge; contemnor sentenced to 1.5 months’ imprisonment, taking into account 8.5 months spent on remand for unrelated offences, which were still pending: Williams J.
Appeal Determined (QCA)[2022] QCA 9827 May 2022Presiding Officer’s appeal from [2021] QSC 321; sentence of 10 months’ imprisonment substituted; pre-sentence custody may be taken into account in sentencing for contempt, but primary judge erred in failing to consider coercive element of punishment and general deterrence, resulting in sentence vindicating not Commission’s authority but contemnor’s challenge thereto, which had referred to his already being incarcerated on remand: Sofronoff P (McMurdo JA and Boddice J agreeing).

Appeal Status

Appeal Determined (QCA)

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