O'Connor v Witness I[2014] QSC 82

SUPREME COURT OF QUEENSLAND

[1] This is an application to punish the respondent for his contempt of the applicant, who was the presiding officer at a Crime and Misconduct Commission hearing conducted on 5 November 2013 pursuant to s 176 of the Crime and Misconduct Act 2001 (Qld) (“the Act”).  There is no dispute that the respondent committed a contempt when he failed to take an oath when required to do so by the applicant.  He also stated that he would not be answering any questions.  The issue is the term of imprisonment that should be imposed.[1] 

[2] Relevant factors in deciding the term of imprisonment are established by the authorities.[2]  In this case they include:

(a)the fact that the respondent has been held in custody awaiting the final determination of this matter in the circumstances described below for a period of approximately six months, being a period of custody which cannot be declared pursuant to s 159A of the Penalties and Sentences Act 1992 but which should be taken into account; and

(b)the fact that earlier this year the respondent indicated his intention to purge his contempt provided he had legal representation at the adjourned hearing. 

Unfortunately, in the circumstances described below, the respondent was unable to obtain legal assistance when the hearing was resumed before the applicant on
11 March 2014 in order for him to purge his contempt and he did not do so.

Background

[3] The description in these reasons of the background to this matter and the progress of the investigation being conducted by the commission is rather sparse because I am conscious of the confidentiality provisions of s 200A of the Act, and that the publication of these reasons should not identify information that may prejudice an investigation being conducted by the commission.[3]  Section 200A(7) also explains why the respondent is identified as Witness I. 

[4] An investigation, conducted by the commission and police, commenced following a major crime.  A specific referral to the commission for the investigation of that major crime was made and the holding of investigative hearings in relation to the matter was authorised.  The applicant was authorised to conduct those hearings. 

[5] On 26 October 2013 an attendance notice issued pursuant to s 82 of the Act was served on the respondent, requiring him to give evidence in relation to his knowledge of the unlawful killing under investigation at a hearing on 5 November 2013.  On 4 November 2013 the respondent sought legal advice in relation to the notice and completed an application for legal assistance to be provided pursuant to
s 205 of the Act.  That provision allows a person to apply to the Attorney-General for financial help to enable the person to obtain legal services in connection with such a hearing.  The Attorney-General may approve the financial help if he considers:

(a)a person may suffer substantial hardship if help is not given; or

(b)in the particular circumstances, help should be given.

The Attorney-General may decide the level of financial help and the conditions on which it is to be provided.  The cost of the financial help is met by the commission.

[6] On 5 November 2013 the respondent attended the commission hearing in the company of his solicitor, who had yet to be told of the outcome of the application for financial assistance.  The respondent was called as a witness and informed about his obligations and rights as a witness.  He was told that he had no right to refuse to answer questions unless he had a reasonable excuse.  He was told that he had no privilege against self-incrimination, but that an order would be made that whatever he said in evidence could not be used against him in any criminal, civil or administrative proceeding except in certain stated circumstances which are not presently relevant.  When the respondent was asked by the applicant whether he would take an oath or an affirmation he replied, “I won’t be answering any questions so I don’t wish to proceed in any way at all ... I am refusing”.  He was given the opportunity to consult with his solicitor, but declined to do so. 

[7] The applicant issued a certificate of contempt against the respondent pursuant to s 199(2) of the Act that day.  It certified that the respondent failed to take an oath when required to do so by the applicant. 

[8] The respondent’s refusal to take an oath at the commission hearing on 5 November 2013 amounts to a contempt.[4]  A person is in contempt of the presiding officer conducting a commission hearing if the person, at the hearing, contravenes a provision of the Act relating to the hearing.[5]  The respondent, through his counsel, acknowledges that he committed the contempt which has been certified.  I indicated when the matter first came before me on 15 April 2014 that I was satisfied beyond reasonable doubt that the respondent committed the contempt.  I formally confirm that I am satisfied the respondent committed the contempt.

[9] In accordance with s 198A of the Act, the respondent was detained on 5 November 2013 for the purpose of bringing him before the Supreme Court to be dealt with according to law.  On 6 November 2013 the matter was listed before P Lyons J, and the respondent’s legal representative sought an adjournment so that his solicitors could apply for funding through Legal Aid Queensland.  The matter was adjourned until 20 November 2013 and the respondent was remanded in custody.  The respondent’s legal representatives advised the applicant’s solicitor on 6 November 2013 that he would be making an application to revoke his bail on certain charges.  The commission was not a party to that bail revocation application.  I was told by the respondent’s counsel, and the applicant accepts, that the application was granted on 6 November 2013.

[10] These contempt proceedings came before Dalton J on 20 November 2013, and the respondent’s legal representative sought an adjournment in order to obtain the report of a psychologist.  The matter was adjourned to 21 February 2014 and the respondent was remanded in custody. 

[11] On 21 February 2014, when the matter came before P.D. McMurdo J, the respondent’s legal representative informed the Court that the respondent had instructed that he would purge his contempt, and sought an adjournment until a date to be fixed.  The matter was adjourned to a date to be fixed and the respondent was remanded in custody.

[12] By letter dated 5 March 2014 the Attorney-General responded to the respondent’s  application under s 205 of the Act, which had been made on 4 November 2013.  The Attorney-General apologised for his delay in responding, and advised that, after consideration of the respondent’s application, he had decided not to approve the application.

[13] A further hearing of the commission was scheduled for 11 March 2014, and when the respondent’s solicitor attended at the hearing that day he told the respondent that the Attorney-General had rejected the application for legal assistance, and that the solicitor was not prepared to appear at the hearing without funding.  According to the respondent, this left him in the position where he was not prepared to purge his contempt without being legally represented. 

[14] At the hearing on 11 March 2014 the respondent’s legal representative advised that funding had not been approved by the Attorney-General and that, in those circumstances, he was not prepared to appear that day on behalf of the respondent.  The respondent did not wish to proceed without legal representation.  Counsel assisting the applicant accepted that position, and also accepted that the best course was to refer the matter back to this Court.  The applicant agreed that it would be sensible to have the matter go back to this Court, and adjourned the hearing.

[15] The matter was listed before me on 15 April 2014 and I heard submissions in relation to the question of punishment.  One complication arose towards the end of the hearing, when there was a contested issue of fact about the circumstances in which the respondent had been held in solitary confinement, and the reason for his being held in solitary confinement for a certain period.  In addition, an indication was given that the respondent might be prepared to purge his contempt, provided he had legal representation at the adjourned hearing of the commission.  The parties and I considered it appropriate for the respondent, through his solicitors, to make a further application for legal assistance to the Attorney-General.  The application, if granted, would establish whether or not the respondent purged his contempt.  It also would enable a just punishment to be imposed which took into account, not simply a stated intention to purge his contempt, but whether the respondent in fact carried through on that intention, purged his contempt and assisted the commission by giving evidence at an adjourned hearing. 

[16] In circumstances in which the respondent is a key suspect in a major crime investigation, it is understandable that he would wish to have legal representation at a hearing at which he was required to give sworn evidence about that subject matter.  At the hearing before me on 15 April 2014 the commission was sympathetic to the respondent’s position in that regard, and agreed that the matter should be adjourned to allow the respondent to make a further application for legal assistance pursuant to s 205.  The matter was adjourned, to be reviewed before me on 1 May 2014, and the respondent was remanded in custody. 

[17] After 15 April 2014 the respondent did not file any material to contradict the evidence tendered that day about the reason he was sent to a detention or behavioural unit.  Shortly stated, the reasons for his detention in those units were that he was the alleged perpetrator of an assault of another inmate on 22 February 2014 and again on 13 April 2014.  The respondent’s affidavit sworn 11 April 2014 said nothing about the circumstances in which he had been held in these units, or the reasons he was sent to them.  The respondent filed no additional material.  An affidavit sworn on 30 April 2014, and served by the applicant prior to the hearing on 1 May 2014, gave evidence about the respondent’s detention and the reasons that he was relocated to a detention unit and a behavioural management unit and supported that evidence by exhibiting relevant records.  The affidavit also stated that on 14 April 2014 the respondent had been relocated to a mainstream accommodation unit where he was living at the time the affidavit was deposed.  In summary, the affidavit is evidence that the respondent’s time in the detention and behavioural units was as a result of acts of violence by him in custody and not because of any association with a criminal motorcycle gang.

[18] I turn to address the second reason the matter was adjourned, namely to enable the respondent to confirm to both the commission and the Attorney-General that it was still his intention to purge his contempt.  When I adjourned the punishment hearing on 15 April 2014 I indicated that this matter should be confirmed by his solicitors as a matter or urgency.  However, the respondent’s solicitors did not do so, and the Official Solicitor to the commission was required to write to the respondent’s solicitors on 28 April 2014 seeking their urgent advice as to whether:

1.the respondent was still prepared to purge his contempt; and if so

2.whether a further application had been made to the Attorney-General.

The commission’s solicitors were not favoured with a response.  Nevertheless, the commission wrote on 29 April 2014 to the Attorney-General recommending that the respondent receive approval for funding for legal assistance to enable him to purge his contempt.

[19] When I reviewed the matter on the morning of 1 May 2014 there was no evidence that the respondent, through his solicitors, had made a further application to the Attorney-General to approve funding for a further appearance before the commission to enable him to purge his contempt.  Instead, an application was made by the respondent to adjourn the further hearing of the question of punishment in order to allow the respondent to file a writ and statement of claim in the High Court of Australia.  Some general indication was given of the nature of the foreshadowed proceedings. 

[20] I declined the application for an adjournment for the reasons given by me on 1 May 2014.  In summary, and against the background which I have identified, it was apparent, and confirmed by counsel, that the respondent had no present intention to purge his contempt.  There was no reason to adjourn the conclusion of the punishment hearing to enable him to appear again before the commission in the next few weeks since he does not currently intend to purge his contempt.  He wished instead to file proceedings in the High Court.  The foreshadowed proceedings in the High Court will not seek an injunction restraining the further hearing of these contempt proceedings.  Instead, they would seek declaratory and other relief, including relief to restrain the commission from further questioning the respondent at a hearing.  I venture no opinion about the prospects of those proceedings, save to observe that in refusing the adjournment I respectfully followed the judgment of Dalton J in Younan v Crime Reference Committee[6] which confirmed the power of the commission to require a person in the respondent’s position to be sworn and give evidence at an investigative hearing.  The period which will elapse before the High Court hears and determines the respondent’s foreshadowed application may be substantial.  There was no satisfactory explanation as to why the point was now being taken, it having been open to the respondent to file such proceedings as he may be advised over the last six months that he has been held in custody.

[21] I decided in the circumstances that the preferable course was to determine the matter without further delay.  Generally, a proven contempt of the present kind should be punished without undue delay.  There is a public interest in punishment being imposed without delay.  After I have punished the respondent under
s 199(8A), and if he indicates that he wishes to purge his contempt then he may be brought before the commission to ascertain whether he wishes to purge his contempt.  If he does, he may then be brought before the Court on either his or the commission’s application, for a declaration that he has purged his contempt.  The Court may order his discharge from prison before the end of the term of imprisonment if it is satisfied that he has purged the contempt.[7]

Remand history

[22] I have had regard to the respondent’s remand history.  The pre-sentence custody certificates placed before me indicate that the respondent was granted bail on 31 May 2013 for certain charges which were then before the Magistrates Court and in respect of which he had been in custody for 95 days.  A further pre-sentence custody certificate records a further period of pre-sentence custody for those offences commencing on 10 December 2013.  However, I was told that his bail was revoked on 6 November 2013. 

[23] The period during which the respondent has been held in custody pursuant to s 198A of the Act and has been remanded in custody by this Court pending the final determination of this contempt proceeding is not pre-sentence custody which may be declared pursuant to s 159A of the Penalties and Sentences Act 1992.  However, in fixing the penalty for contempt allowance can be made for it.[8]

[24] Technically speaking, the period in which the respondent has been held in custody since his bail was revoked on the charges he currently faces may be declared as pre-sentence custody pursuant to s 159A of the Penalties and Sentences Act 1992 if the respondent is convicted of those offences.  But, practically speaking, the respondent has been in custody since his bail was revoked because he had to remain in custody in order to be dealt with and punished for his contempt of the commission.  If these contempt proceedings had not been commenced he may have remained on bail for the offences with which he is presently accruing potential pre-sentence custody.  This is a period of approximately six months.

[25] It is important that the respondent not obtain double-credit for this period of custody, by it being taken fully into account by me in imposing a punishment for contempt, and for the same period to be declared as pre-sentence custody.  Having heard submissions, I consider the preferable course is to take account of the period of approximately six months that the respondent has been held in custody.  This is because had it not been for the contempt proceedings he would not have applied to have his bail revoked and he probably would have remained on bail.  It will be necessary, however, to ensure that if and when he comes to be punished for the offences upon which he is on remand that he does not obtain unjustified credit for this period.  This can be accommodated by the sentencing judge having access to a copy of these reasons which will identify the respondent by name, or for the sentencing judge to be informed by some suitable means that the period since the respondent’s bail was revoked until today has been taken into account by me in imposing a term of imprisonment for contempt.  It will be for the sentencing judge to consider whether any part of the same period should be declared as pre-sentence custody for the purposes of s 159A.   However, there is an important interest in the respondent not gaining double-credit and this is why the sentencing judge should be informed of these matters.

[26] I direct that a copy of these reasons, together with the full name of the respondent, be placed in an envelope, which is to be sealed, placed on the Court file of the matters upon which the respondent is remanded in custody and marked “Not to be opened without an order of the Court in which (insert respondent’s name) may be sentenced for the offences which are pending in the District Court”.

[27] I further direct that a copy of these reasons, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of the Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.

[28] The respondent was held in a detention unit or in a behavioural management unit for periods between 23 February 2014 and 2 April 2014 and on 13 April 2014 due to his conduct in detention.  There is no reliable basis to suppose that the respondent will serve any further part of his term of imprisonment in conditions that are different from, and more onerous than the conditions experienced by other prisoners.  This distinguishes this case from that of others such as Callinan v Attendee X[9].  If, however, the respondent is again sent to a detention or behavioural unit by reason of his conduct in jail then this will be the result of his own actions.  The respondent is presently being detained in mainstream accommodation and I assume he will remain in similar accommodation for the term of his imprisonment unless he is detained in some other accommodation for a breach of discipline or pursuant to a safety order made under the
Corrective Services Act 2006 (Qld).

Factors relevant to punishment

[29] As I stated in Callanan v Attendee X[10], factors relevant to the assessment of proper punishment for contempt of this type were considered by Dunford J in x Wood v Staunton (No 5)[11].  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.

These factors have been applied by judges of this Court in cases involving punishment of contempt under s 199 of the Act. 

Application of these factors

[30] The contempt was committed at an investigative hearing into a major crime.  I accept the applicant’s submission that this is a serious contempt.

[31] The respondent’s counsel submits that this is not the case, having regard to “the extreme prejudice that participation in the hearing” would have occasioned to the respondent.  It is reasonably apparent that the evidence sought to be obtained from the respondent would have been used to further an investigation with a view to charging the respondent or others, if possible, with the very serious offence under investigation.

[32] In oral submissions the respondent’s counsel sought to contrast the position of the respondent who, it was submitted, faced the prejudice of incriminating himself for a very serious crime with the case of a person who was not suspected of being involved in the offence under investigation, or who may have had a peripheral involvement in it, and who therefore did not have the same explanation for not co-operating.  A refusal to be sworn and give evidence by someone who was not the target of the investigation was submitted to be more serious than a refusal by someone who is.  I do not accept this argument and the submission based upon it that the contempt in this case is therefore “at the lower end of the scale”.  A wish not to incriminate himself or others may explain the respondent’s contempt.  It does not excuse it or make the contempt any less serious.  The law seemingly permits the commission to require someone who is suspected of being complicit in a murder to incriminate themselves.[12]  There are certain restrictions that can be made on the use of privileged answers.[13]  But derivative use may be made of them. 

[33] Whether or not participation in the hearing would occasion “extreme prejudice” or some lesser form of prejudice, the law authorises it in the interest of investigating and ultimately punishing those who commit major crimes.  The considered refusal by someone to give sworn evidence, when required to do so, is a serious matter.  It is serious whether the person required to give evidence is a target of the investigation, is thought to have had some peripheral involvement in the crime or is thought for some other reason to be someone who can provide valuable information.

[34] The respondent was aware of the consequence to him of refusing to take an oath on 5 November 2013.  He was accompanied by his solicitor.  He did not co-operate even to the extent of taking an oath.  He indicated that he would not answer any questions. 

[35] The precise consequences of the contempt on the relevant investigation cannot be stated because the respondent simply refused to co-operate and those investigating matters cannot be sure what he may have said.  The affidavit of one of the principal investigating officers sworn on 20 February 2014 states that the investigations, the results of which are outlined in the affidavit, identified the respondent as having substantial knowledge of the crime under investigation.  It also states that the respondent’s refusal to be sworn prevented the commission from putting certain questions about his alleged involvement in the crime to him.  The respondent’s actions are said to have “adversely impacted on the ability of the investigators to effectively focus inquiries, ultimately affecting the acquisition of evidence” that may be relied upon to convict a person or persons for the crime.  This evidence should be accepted, given the balance of the affidavit of the officer and the absence of any sound reason not to accept his evidence.  The fact that the investigation has continued since the affidavit was sworn does not alter the sworn evidence that the respondent’s contempt adversely affected the acquisition of evidence.

[36] As to the reason for the contempt, the respondent does not give one in his affidavit.  There is no obvious evidentiary basis for the respondent’s counsel’s written submission that at the time of the contempt the respondent was concerned that there would be non-legal consequences for him if he fully participated in the investigation hearing.  This is a possible inference if his full participation became known to others, including others in a correctional environment, and if it became known that he had given evidence which implicated others.  If I was to conclude that the respondent’s contempt was due, in part, to a fear of retribution, and also that such a fear was well-founded, then it would need to be taken into account.  However, it would not necessarily attract much weight by way of mitigation.  The achievement of the public policy objective which underpins the conferral on the commission of its exceptional powers could be impeded if significant weight was to be given to an assertion (let alone an assumption) of a fear of retribution as a reason for refusing to provide information.[14]

[37] A more likely reason for the respondent’s refusal to be sworn and answer questions is that he has no interest in assisting the authorities to collect evidence which would be used to further an investigation in which he is a key suspect.

[38] No opportunity exists for the respondent to make any public apology or expression of contrition.  Instead, early in 2014 he indicated, in the circumstances noted above, a preparedness to purge his contempt if he has legal representation at a further hearing of the commission.  He has co-operated in accepting that he is in contempt and was polite before the commission hearing and in this Court.  I take these matters into account.

[39] As to the respondent’s character and antecedents, he is a young man.  He has a lengthy criminal history.  He has previously been sentenced to short terms of actual imprisonment.  I take account of the personal information contained in the report of the psychologist dated 21 January 2014.

[40] General and personal deterrence are important factors.   As Byrne SJA observed in Callanan v F,[15] if witnesses are unwilling to participate in investigative hearings in connection with the commission of serious crimes, then that is likely to greatly disadvantage the community.

[41] The respondent’s submissions accept that general deterrence is a significant feature that informs the discretion to punish for contempt.  However, the submission is made that the utility of any general deterrence may be questioned in circumstances where proceedings are conducted in camera and the full details of the offending behaviour are never publicly released.  I accept that the full details may never be publicly released in the form of a full report of the proceedings.  However, the fact that persons in contempt of the commission are punished may be publicised through the publication of reasons in accordance with s 200A(7) of the Act, and those published reasons may be reported in the general community.

Submissions of the parties

[42] I was assisted by counsel with reference to the punishments that were imposed in other contempt cases.  They included Callanan v F[16] where a sentence of eight months’ imprisonment was imposed on an individual who was not the target of the investigation.  Similar penalties have been imposed in other cases including Callanan v B[17], Scott v M[18], Re O'Connor[19] and Re O'Connor[20].  However, more substantial penalties for contempt in the case of a refusal to give evidence can be found,[21] particularly by a person who was subpoenaed to give evidence and failed to appear at a criminal trial.[22]

[43] Other cases of contempt of a commission hearing have involved the investigation of major crimes, such as drug trafficking.  In Scott v M[23], the respondent was in contempt of the commission in relation to a hearing involving drug offences.  He was not the main target of the commission’s investigations, and he had no relevant criminal history.  Boddice J observed that such a person would normally receive a sentence of imprisonment in the order of six to nine months.

[44] O'Connor v Witness G[24] concerned a commission investigative hearing in relation to the murder of the respondent’s brother-in-law.  The deceased was involved in the illicit drug trade.  The respondent gave evidence over four days, including some evidence about the packaging of money and was cross-examined at length about the deceased’s drug activities.  He refused to answer a question about his removal of money from a safety deposit box which had been deposited by the deceased.  He said that he removed it so the police could not confiscate it, and he explained that he did not wish to explain where the money was because he wanted the money to be available for his sister’s children.  There was no evidence to suggest that the respondent was involved in the homicide of the deceased.  Margaret Wilson J considered that the applicable range of penalty was seven to eight months’ imprisonment, imposed a penalty at the bottom of that range and deducted a period of 33 days that the respondent had served on remand.  A comparison between that case and this one leads me to conclude that the respondent’s contempt is more serious than the contempt committed by Witness G.  Witness G co-operated in the investigation of the murder by giving sworn evidence over four days.  He was not a suspect in the murder.  His refusal to answer questions about the whereabouts of money was a serious contempt.  However, it was not as serious as the respondent’s refusal to answer any questions or disclose information about a murder.

[45] The cases of Re O'Connor heard in December 2013 and February 2014 cited above involved individuals who were not the target of a murder investigation.  The extent of their knowledge and the extent to which their refusal to give sworn evidence impeded the investigation would appear to have been substantially less than that of the respondent.  They were imprisoned for terms of seven and eight months respectively before account was taken of a period of about a fortnight in which each was held in custody before being punished.  Again, the respondent’s contempt would appear to warrant a term of imprisonment substantially higher than seven or eight months based upon those cases. 

[46] Counsel for the applicant accepted that the punishment in this case should take into account the period in which the respondent has been held in custody as a result of the initiation of this contempt proceeding and being held on remand by orders of this Court since last November.  Senior Counsel’s written submission in November 2013 was that punishment in the range of eight to 18 months’ imprisonment was open.  Upon the hearing before me, counsel for the applicant on 1 May 2014 sought to distinguish this case from others in which a term of approximately eight months was imposed.  This case was said to be different because of the very serious nature of the offence under investigation and the respondent’s contempt was more serious than the contempt in other cases.  Given his knowledge of the circumstances surrounding the crime, he was in a position to provide valuable information which might aid investigations.  His information would incriminate or exculpate individuals.

[47] Counsel for the respondent submitted that he should be sentenced to a term of imprisonment in order of seven months, taking into account the matters that I have earlier described and having regard to the fact that he evinced an intention to purge his contempt.  When regard is had to the period of six months that the respondent has been held in custody on remand by reason of the contempt, it was submitted that he should be released in the near future.

[48] I consider that the appropriate punishment for the respondent’s contempt, before account is taken of the period of six months that he has been held in custody, should be substantially higher than seven or eight months.  The contempt is a more serious one than cases in which a term of imprisonment of that order has been imposed.

[49] A contempt of the commission of the kind committed by the respondent occurs in a different context to a contempt of court by a subpoenaed witness who fails to appear to give evidence or, having appeared, refuses to give evidence at a trial.  R v El Kholed[25] is a case in which the defendant failed to appear at trial in accordance with a subpoena served on him by the prosecution.  He pleaded guilty to a charge of contempt.  The trial at which he was subpoenaed to give evidence was a murder trial and his failure to appear had the potential to affect its outcome.  As it happened, the prosecutor fairly acknowledged that, the accused in the trial having made formal admissions, the evidence that the defendant was expected to give was less important than it otherwise might have been.  As a result, there were not the adverse consequences on the trial which might otherwise have arisen.  The defendant had mental health problems and his fear of the accused and a feeling of inability to cope were offered as an explanation for his conduct.  Margaret Wilson J concluded that in all the circumstances, the starting point was a head sentence of 18 months’ imprisonment with a non-parole period of one third, and the head sentence was reduced to take account of the period of about four months the defendant had spent on remand. 

[50] Cases such as R v El Kholed, like this one, concern a “blatant and calculated disregard”[26] of a witness’ legal obligations.  As Pincus JA observed in R v Freeman[27], a contempt in the form of a witness refusing to give evidence strikes at the foundation of the criminal justice system and the principal reason for imposing a substantial sentence is to discourage other persons similarly minded to refuse to co-operate.

[51] A contempt of the commission of the kind committed by the respondent occurs in a different context to a criminal trial.  A contempt of court of the kind committed by Freeman and El Kholed has the potential to alter the outcome of a criminal trial.  An innocent person may be wrongly convicted or a guilty person may escape justice.  A contempt of the commission by withholding important evidence at a commission hearing into a serious crime may mean that an offender is never brought to justice, or that a person is charged because the witness withholds important exculpatory evidence. 

[52] Despite important differences between contempt of court and contempt of a commission when a person refuses to take an oath or give evidence when lawfully required to do so, there are some common features.  Both forms of contempt undermine aspects of the criminal justice system.  They involve calculated disregard of legal obligations.  Unless denounced by the imposition of a substantial punishment they undermine the criminal justice system by encouraging others to disregard their legal obligations.

What period of imprisonment is appropriate?

[53] This is a serious contempt.  It relates to an investigation into a very serious crime.  The respondent was aware of the consequence of refusing to be sworn.  The contempt that he committed on 5 November 2013 adversely affected the ability of investigators to effectively focus inquiries and to acquire evidence that may be relied upon to charge and convict a person or persons of homicide.  The apparent reason for the respondent’s refusal to be sworn is that, despite the restriction on use of privileged answers, he does not wish to assist the investigators to collect the evidence that would be used to further an investigation in which he is a suspect.

[54] The respondent’s past preparedness in February and March 2014 to purge his contempt, provided he had legal representation, is deserving of recognition.  It is understandable, and was understood by the commission, that someone in the respondent’s position at that time would wish to be accompanied by a legal representative at a hearing which had such significant consequences for him.  The fact that his preparedness to purge his contempt was conditional upon being legally represented does not affect matters.  Account should be taken of it.  The account to be taken of it is not as great as it might have been if the applicant was still prepared to purge his contempt at a commission hearing at which he was legally represented.

[55] Even taking account of matters in mitigation that were advanced on the respondent’s behalf, including his age, relative lack of criminal history, co-operation in admitting his contempt and past preparedness to purge his contempt, a term of imprisonment substantially higher than eight months is warranted in all the circumstances.  The respondent committed a blatant contempt in calculated disregard of his legal obligations to take an oath and answer questions at a hearing investigating a very serious crime.  The respondent was not of peripheral interest to the investigation.  The evidence before me discloses that he knows about the circumstances of the crime.  His contempt adversely affected an important investigation.  A term of imprisonment of 12 months is warranted before account is taken of the period of six months that the respondent has spent on remand.

[56] An effective term of imprisonment of 12 months could be structured in one of two ways.  The first would be to take account of the six months custody which the respondent has already served and to impose a term of imprisonment of six months to commence forthwith.  The alternative is to order that the term of imprisonment commence on the date the respondent was taken into custody on account of his contempt.  He has been held in custody ever since, and this satisfies the requirement of s 199(8A) that the imprisonment be served wholly in a Corrective Services facility.  It may be contentious whether a term of imprisonment imposed under s 199 can be ordered to commence from the date that the respondent was taken into custody.  The preferable course is to impose an effective term of imprisonment of 12 months, by taking into account the period of about six months he has been held in custody, and ordering that he be imprisoned for an additional six months commencing today. 

[57] The orders of the Court are:

1.I am satisfied beyond reasonable doubt that the respondent was in contempt of the presiding officer in that he refused to take an oath in the circumstances stated in the Certificate of Contempt of the applicant dated 5 November 2013;

2.I order that the respondent be imprisoned for a term of six months from
2 May 2014; account being taken of the period he has already been held in custody since 5 November 2013;

3.I direct that the originating application, the Certificate of Contempt, the affidavits filed herein, the outlines of submissions and any exhibits be placed in an envelope which is to be sealed and marked “Not to be opened without an order of the Court”.

4.I direct that a copy of these reasons, together with the full name of the respondent, be placed in an envelope, which is to be sealed, placed on the Court file of the matters upon which the respondent is remanded in custody and marked “Not to be opened without an order of the Court in which (insert respondent’s name) may be sentenced for the offences which are pending in the District Court”.

5.I further direct that a copy of these reasons, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of the Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.