Scott v Witness J A[2015] QSC 48

SUPREME COURT OF QUEENSLAND

Investigating a specific referral

1. The Crime and Corruption Commission (“the Commission”) has primary responsibility^[1] for achieving the purposes of the Crime and Corruption Act 2001 (“the Act”).

2. A main purpose of the Act is “to combat…major crime”.^[2] That purpose is to be achieved “primarily” by establishing the Commission^[3], armed with investigative powers “not ordinarily available to the police service”^[4] to “enable the Commission to effectively investigate major crime…”.^[5]

3. “The Commission has a function…to investigate major crime referred to it…by a “reference committee”.^[6] And by section 27(1) of the Act, a reference committee may refer a particular incident of major crime to the Commission for investigation where the committee is satisfied that the police service has carried out an ineffective investigation into the particular incident and where further investigation is unlikely to be effective using powers ordinarily available to the police.^[7]  Such a reference is called a specific referral.^[8]

4. In January 2013, the reference committee made a specific referral concerning the murder of an identified person.

5. Section 82(1) of the Act authorises the Commission Chairman to issue a notice requiring a person to attend at a Commission hearing in relation to a crime investigation to give evidence.

6. Such an attendance notice was issued to the respondent requiring him to attend a Commission hearing to give evidence about his knowledge of the murder.

First refusal to answer

7. The respondent, who is related by marriage to the deceased, attended the hearing on 29 May 2013.  Once sworn, he testified that he had taken about $1.8M from his safe deposit box so that the police could not seize the money; the deceased had put the money into the box; and the money was linked to the deceased’s involvement in illicit drug activity.

8. A witness at a Commission hearing may be examined on any matter the presiding officer considers relevant.^[9] 

9. The presiding officer, Mr O'Connor, asked the respondent:

“Where is the money…”

10. He answered:

“I am not prepared to say.”

11. Section 190 of the Act stipulates that:

“(1)A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.

Maximum penalty – 200 penalty units or five years imprisonment.

2. The person is not entitled –

1. to remain silent; or

2. to refuse to answer the question on a ground of privilege, other than legal professional privilege.”

12. The respondent did not claim to have any excuse for declining to answer the question.

13. The presiding officer told the respondent that he was not excused from further attendance and adjourned the hearing to a date to be fixed. He then issued a certificate of contempt certifying that the respondent had “failed to answer a question put to [him] by [the presiding officer]”.

14. By s.198:

“(1)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; or

…

(4)…the following contraventions relating to a hearing may be certified in writing to the Supreme Court under s.199 as a contempt of the presiding officer –

(c)a failure by a person, under s.190…to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse.”

15. Section 199(2) of the Act provides that a presiding officer may certify a “contempt of the presiding officer conducting a commission hearing” in writing to the Supreme Court. Then the “court must inquire into the alleged contempt”.^[10] 

16. On 1 July 2013, the respondent appeared before Margaret Wilson J and admitted the certified contempt. Finding the admitted contempt proved, the judge sentenced the respondent to imprisonment of almost six months.^[11] 

17. The respondent served that sentence.

Second refusal

18. In April 2014, the applicant was authorised to conduct a Commission hearing in relation to the investigation.

19. On 11 September 2014, the applicant presided at a “reconvened hearing”. The respondent, legally represented^[12], attended pursuant to his initial attendance notice.

20. After an oath was administered, the respondent answered questions about new topics before the examination revisited the fate of the money taken from the safe deposit box.

21. The applicant asked where the money was, putting the same question that the respondent had declined to answer in May 2013.

22. Again, the response was:

“I’m not prepared to say.”

23. The applicant heard submissions about that refusal from the respondent’s lawyers and the Commission.

24. The respondent did not assert that he had a reasonable excuse for his refusal.

25. The applicant announced that it was appropriate to certify the respondent as being in contempt for declining to answer the question.

26. The respondent was told that he was not formally excused from further attendance at the hearing, which was adjourned by the applicant to a date to be fixed on the basis that a certificate of contempt would issue.

New contempt proceeding

27. The applicant certified that he was satisfied that the respondent was in contempt of the presiding officer conducting a Commission hearing because, on 11 September last, he had “refused to answer a question put to the witness by me, the presiding officer, without reasonable or lawful excuse”.

28. As s.190(1) required the respondent to answer the question about the money “unless” he had a “reasonable excuse” for refusing to do so, proof of the contempt requires that it be established, beyond reasonable doubt, that the respondent:

• failed to answer a question put to him by the presiding officer at a commission hearing; and

• did not have a “reasonable excuse” for that failure.

Proof

29. The first element is not in contest.

30. It cannot be a “reasonable excuse” that the respondent is exposed to punishment for contempt for his 11 September refusal to answer, if that is the outcome for which the Act provides.  And no other “excuse” is propounded.

31. In these circumstances, the certified contempt is proved to the requisite standard.

Penalty?

32. What, if any punishment should be imposed for the contempt?

Punishment regime

33. By s.199:

(8)“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.

(8A)(a)However, if –

the contempt that is certified is –

(i)a failure to take an oath…

(ii)a failure…to produce a stated document or thing…

(iii)a failure by a person, under section 190…to answer a question put to the person at the hearing by the presiding officer without reasonable…excuse; and

2. the court is satisfied the person has committed the contempt;

the court must punish the person in contempt by imprisonment to be served wholly in a corrective services facility.

(8B)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 a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified – 2 years and 6 months imprisonment; or

(c)for a third or subsequent contempt relating to a 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.

(8C)The maximum punishment the court may impose is at the discretion of the court.

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

(8E)A person imprisoned under subsection (8A) 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 –

(a)if it is satisfied that the person has purged the contempt; and

(b)it has heard the commission’s submissions in relation to the application and the person’s discharge from prison.

9. The Uniform Civil Procedure Rules 1999 apply to the court’s investigation, hearing and power to punish, with necessary changes…

(11)The person is not excused from attending before a commission hearing in obedience to an attendance notice only because the person is punished or liable to punishment under this section for contempt of the presiding officer.”

Rival contentions

34. The applicant contends that s.199(8B)(b) requires the imposition of a minimum term of two years and six months imprisonment on the footing that the 11 September refusal is a “second contempt…”.

35. The respondent, however, contends that he has already been punished for declining to answer a presiding officer’s inquiry about the fate of the money – by suffering the imprisonment to which he was sentenced by Margaret Wilson J. On his case, it is neither possible nor appropriate to punish him “a second time for the same contempt”. Several arguments were advanced in support of the proposition^[13].  Before turning to them, a factual consideration deserves mention.

36. Although the 11 September refusal was an act of the same character as the earlier refusal, it is not the same act. And while in some circumstances, repeated refusals to answer a question might present as a series of so closely connected events that the conduct should be seen as one episode constituting one, continuing refusal^[14], the respondent’s refusals to answer the separate questions put on different occasions about the money cannot be regarded as having occurred in one episode.  Those refusals, though identical in their essentials, are distinct acts, separated in time by months during which the respondent was imprisoned for contempt for refusing to answer the first time.

Controverting Margaret Wilson J’s order?

37. It was suggested that this application, as it seeks to have the respondent punished for refusing to answer the same question a second time, is an impermissible attempt to re-litigate the decision of Margaret Wilson J “as it challenges the incontrovertibility of that decision”.

38. But Margaret Wilson J punished the respondent for what he had done in refusing to answer the question put in May 2013. Her Honour was not purporting also to punish for misconduct that had not then happened.

39. To punish the respondent for his second refusal in no way calls into question the decision to punish him for the earlier refusal.

Only indefinite sentence permissible?

40. Next, it was contended that the general law does not allow further punishment for contempt in refusing to answer a question after a finite sentence has been imposed for an earlier refusal to answer the same question.

41. On the respondent’s case, the proper procedure for coercing a witness who refuses to answer is to imprison the witness for an indefinite term, until the contempt is purged; or until the proceeding in which the evidence might be used concludes; or until the court is satisfied that, notwithstanding further and definite detention, there is no real prospect of obtaining the relevant answer from the witness; or until the contemptor has spent so long in detention that further detention is excessive, given the seriousness of the refusal.

42. Now, indefinite sentences have been imposed for refusals to answer questions put at a hearing before an executive agency authorised by legislation to require an answer.^[15]  However, the notion that an indefinite sentence is the only permissible way to punish a contumacious refusal to respond to lawful questioning finds no support in the authorities.^[16]

43. In any event, the position that might obtain under the general law is not to the point if s.199(8B)(b) is engaged.

Presumption against retrospectivity

44. Subsections (8A) – (8F) of s.199 were inserted by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and took effect on 17 October 2013 – after the respondent was imprisoned but before 11 September 2014.

45. The respondent contends that those provisions that prescribe mandatory minimum sentences for second and subsequent contempts will have retrospective effect unless interpreted to apply only where the first contempt occurs after the 2013 amendments became operative; and there is no warrant for construing the amendments to have such an adverse impact on liberty.^[17]

46. Section 199(8B) not purport to increase the penalty for contempts committed before the amendment commenced. Rather that amendment requires that prior conduct be taken into account in fixing a penalty for a contempt that occurs after it takes effect.

47. In other words, s.199(8B) does not attach new legal consequences to an event that occurred before its commencement.^[18]

48. To take into account the contempt punished by Margaret Wilson J as a first contempt is to acknowledge an historical fact: it is not to give the 2013 amendment retrospective effect.

49. Any presumption against retrospectivity has no work to do in this context.

The issue: statutory interpretation

50. Whether the respondent may be punished for his second refusal and, if so, how, are questions that raise issues of statutory interpretation.

51. The second refusal to answer a presiding officer’s question about the money took place during “a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified”.^[19]  Indeed, despite the change in identity of the presiding officer, the Commission treated the second refusal as having been made at the same hearing, on its resumption after the respondent served the sentence imposed by Margaret Wilson J.^[20]

52. In this setting, the question is whether a s.199(8B)(b) “second contempt…” comprehends the repetition of a refusal to answer a particular question posed after the witness has served the imprisonment “decided by the court” for the first refusal.^[21]

53. The respondent contends that his second refusal to answer the question about the cash was not a sub-s. (8B)(b) “second contempt…” because a “second contempt…” does not include a mere repetition of conduct that has previously been punished as a contempt.

54. That interpretation of “second contempt…” is said to be required by application of the principle of legality, by which “important common law rights and procedural and other safeguards of individual rights and freedoms will be construed ‘as effecting no more than is strictly required by clear words or as a matter of necessary implication’”.^[22]

55. The argument assumes that a person could not twice be punished for the repetition, on separate occasions, of a refusal to comply with a lawful direction to answer a question posed pursuant to authority under the general law or else conferred by statute.

56. The assumption is not correct.

General law position

57. Under the general law, a second or subsequent separate defiance of lawful authority that involves no more than repetition of earlier conduct is capable of constituting a second contempt attracting further punishment.

58. In Wilkinson v Anjum^[23], a father abducted his daughter and took her from England to Asia.  Soon afterwards, he was ordered by a judge to disclose the child’s location and to cause her to be returned to “England and Wales” forthwith.  The father did not comply.  Another judge found him in contempt and committed him to prison for two years.

59. The judge made a fresh order requiring the father forthwith to give information concerning the child’s whereabouts. The father was incarcerated but remained recalcitrant.

60. Shortly before the father’s expected release from custody, a third judge made a fresh order requiring him to state the child’s location. Again, the father failed to do so. A few days before the father was to be released, the third judge held that the failure to comply with his order constituted a contempt and imposed a sentence of imprisonment of one year for that misbehaviour.

61. On appeal to the Court of Appeal of England and Wales, the father argued that the sentence was not appropriate because there had been but a single course of conduct and it was wrong that he should be twice punished for it. Rejecting that contention, McFarlane LJ (with whom Hughes and Tomlinson LJJ agreed), said^[24]:

“It must in my view be permissible as a matter of law for the court to make successive mandatory injunctions requiring positive action, such as the disclosure of information, notwithstanding a past failure to comply with an identical request.  A failure to comply with any fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment.”

62. Hughes LJ added^[25]:

“…there may be successive or repeated contempts of court constituted by positive acts disobeying an order not to do them.  For my part, I am quite satisfied that there may also be consecutive or successive contempts of court constituted by repeated omissions to comply with a mandatory order positively to do something.  However, where the latter is in question, it is plain that there may well come a time when further punishment will be excessive.  When that will be is a matter of fact for each case.”

63. A kindred issue was considered in Canada in the context of repeated refusals to answer questions at an examination in aid of execution of a judgment.^[26]

64. At the first examination, the judgment debtor did not give adequate responses to questions the court had ordered him to answer. He was held in contempt, sentenced to imprisonment for 21 days, and fined $20,000. After the debtor had served his sentence, the creditor applied to commit him for continued disobedience of the original order. An adjournment was granted on condition that the debtor give responsive answers to the initial questions within a fixed time. Such further answers as were provided were unresponsive: conduct evidencing a continuing unwillingness to comply with the order. This time, the debtor was sentenced to imprisonment for 42 days, and fined $40,000.

65. Rejecting the debtor’s appeal, the Ontario Court of Appeal^[27] said:

“[35]The appellant submits that he had already been sentenced for contempt…and cannot be punished for the same contempt twice. He relies on the holding of the Alberta Court of Appeal in Re Braun…, that if contempt is not purged, “continued disobedience is neither an aggravating factor nor a fresh transgression”.

[36]However, in Chiang (Trustee of) v. Chiang…, this court stated that it could not endorse the reasoning in Braun. …it was at odds with the coercive purpose of civil contempt:

To permit only one penal sanction for the ongoing breach of an order deprives the court of the ability to impose measured, but incremental, sanctions to obtain compliance with that order.  In other words, if the court can impose only one period of incarceration for a civil contempt, then it cannot address, in any meaningful way, a contemnor’s continuing defiance.

…

[37]While the reasoning expressed in Chiang was obiter, I would endorse it and apply it to this case. The coercive tool of civil contempt must have teeth…”

66. In the United States, judicial consideration centres on double jeopardy and due process considerations arising from federal and state constitutions. Even so, the American cases^[28] are not devoid of interest.

67. In Ushkowitz v McCloskey^[29] three witnesses appeared before a grand jury investigating charges of criminal conspiracy.  The investigation inquired into the activities of a man named Hussey.  Questioned about their knowledge of Hussey, the witnesses refused to answer on the ground of self-incrimination.  They were granted immunity from prosecution.  Afterwards, they again appeared before the grand jury and were asked whether they knew Hussey.  All refused to answer, once more asserting a privilege against self-incrimination.  They were fined and sentenced to imprisonment for 30 days for contempt of the grand jury.  After serving their terms, they were summoned to appear before the grand jury.  Again, they refused to say whether they knew Hussey and were fined and sentenced to imprisonment.  After the second terms of imprisonment were served, they were summoned before the grand jury.  Once more, they refused to answer, invoking the same privilege.  They were sentenced to imprisonment and fined for a third time.

68. The United States Court of Appeals for the Second Circuit^[30] concluded that the last prosecution did not engage the constitutional protection against double jeopardy, reasoning^[31]:

“Appellants were not tried or punished more than once for a single offense.  Each episode before the grand jury was a separate and distinct contempt.  The conduct for which the sentences were imposed was similar conduct, but it was engaged in on three occasions separated from each other by appreciable periods of time.

“Every citizen is subject to be recalled as a witness before the same Grand Jury or investigating body.  There is no reason why one should get immunity as to subsequent contempts by serving a term of imprisonment and paying a fine.  The State has a right to his truthful testimony and has a right to try again to get it after he has once been found guilty of contempt and punished.”  Second Additional Grand Jury, etc. v. Cirillo, 12 N.Y.2d 206, 210, 237 N.Y.S.2d 709, 712, 188 N.E.2d 138, 140, 91 A.L.R.2d 1241 (1963)…

The occasions on which they refused to answer were separated from each other not only by time, but by the prison terms which were imposed as punishment in order to induce a change in their contumacious conduct…

It is argued that sentences for the repeated contempts could become so numerous and so oppressive as to constitute a denial of due process.  We are clearly not dealing with that situation in the present case and shall withhold judgment on it until we are faced with the problem.”

69. The respondent invokes the decision of the Court of Appeal in R v Shea^[32], contending that it supports the idea that the general law would not permit a witness to be punished for repetition of a refusal to answer a question put on two different occasions separated by imprisonment.

70. In Shea, a witness appeared at an Australian Crime Commission hearing to give evidence before an examiner and answered questions that sought his name, date of birth and address.  When directed to say whether he had been involved in manufacturing “amphetamine substances”, he announced that he would not answer any questions.  Soon afterwards, he was directed to say whether he knew Brendan Shivella.  He was, he responded, “not answering any questions”.

71. The witness was charged with two counts of refusing to answer a question at an examination, contrary to s.30(2) of the Australian Crime Commission Act 2002^[33]: one concerned the amphetamine manufacturing inquiry; the other related to knowledge of the named individual.

72. On his pleas of guilty, the witness was sentenced to imprisonment. While in prison, he was served with a summons to appear at another Crime Commission examination touching the same subject matter as the earlier. Before his release from custody, he appeared at the new examination. Asked if he had been involved in drug trafficking since his previous appearance and whether he knew Mark Perry, he declined to answer, despite having been directed to do so.

73. A judge stayed, as an abuse of process, a prosecution for offences said to arise from the second set of refusals. On appeal, the stay was set aside.

74. Holmes JA, with whom Chesterman and White JJA agreed, said^[34]:

“…it does not follow…that the mere fact that the respondent was brought back for questioning when he had previously refused to answer questions and been prosecuted and punished meant that any resulting prosecution must be unfair…”

75. Her Honour pointed out that the question on the second occasion about drug trafficking was “not repetitive”, adding^[35]:

“It asked about trafficking, as opposed to manufacturing (as the question in the earlier examination had done), and it was the product of new information in the form of the telephone intercept.”

76. The second question, about the witness’s relationship with a named man, also raised new matter.

77. Holmes JA said^[36]:

“Neither question amounted to a repetition of any question that the respondent had previously been asked and refused to answer.”

78. And^[37]:

“Nothing in the evidence suggested that the officers of the Australian Crime Commission were doing anything other than proceeding in a proper exercise of their powers to question the respondent further about matters relevant to their investigation…It was not, in my view, incumbent on them to assume that, having previously been unco-operative and punished, the respondent would inevitably be obdurate on his second examination…This was not in any sense a case already disposed of by earlier proceedings.  It did not entail “multiple prosecutions arising out of the one set of events”.  The factual bases for the second set of charges were entirely distinct from those of the first.

…what did occur was conduct constituting an offence at a significant interval from the first episode in circumstances where the respondent had ample time to reflect on his choice as to whether to speak and its consequences.  And the fact of the respondent’s previously having been punished for similar offences might go to sentence (whether to mitigate or aggravate), but it did not bear on whether there should be a trial at all…

The conclusion that the prosecution amounted to litigating anew a matter already deal with was not open…all that had happened was that the respondent had previously been sentenced for similar conduct.  The conclusion that the second indictment constituted an abuse of process could not properly be reached.”

79. The respondent fixes on observations that neither of the questions asked on the second occasion had been the subject of a refusal to answer at the first examination and that the “factual bases for the second set of charges were entirely distinct from those of the first” to propose that, inferentially, the Court must be taken to have decided that if the second prosecution had been founded on a second refusal to answer the same question, that prosecution ought to be stayed as an abuse of process, the witness having been punished for refusing to answer previously.

80. Shea does not decide that a second prosecution founded on a second refusal to answer the same question would inevitably constitute an abuse of court process.  Nor does the essential reasoning establish that, under the general law, a second, separate refusal to answer the same question to which an answer may lawfully be compelled could not attract its own punishment.

81. Remarks about the differences in the questions on the two occasions may assume that the prosecution might have been stayed if the second set of questions were the same as the first. If so, that view of things may reflect an impression that such a repetition of questioning would necessarily have to be regarded as actuated by an anxiety for additional punishment for the initial refusals than by a concern to secure proper responses.

82. However that may be, the reasons do not advert to the consideration that where separate contempts are punished as separate offences, the offender is not twice punished for the same act or offence. And the applicant’s success would not see the respondent twice punished for refusing to answer the question posed in 2013: instead, it would see him punished for the first time for his refusal to answer the question posed last year.^[38]

Resolution of the interpretation issue

83. In Hamdan v Callanan; Younan v Callanan^[39], Muir JA, Gotterson JA and Mullins J concurring, said^[40]:

“It is a “settled principle that statutory provisions are not to be construed as abrogating fundamental rights or important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect”.

In Lee v New South Wales Crime Commission, Kiefel J, referring to Potter v Minahan, stated that it was a requirement of the principle of legality that a statutory intention to abrogate a fundamental freedom or principle must be expressed with “irresistible clearness”…

In their reasons in Lee, Gageler and Keane JJ warned against undue extension of the principle of legality:

“The principle extends to the protection of fundamental principles and systemic values.  The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature”.

Their Honours further explained that:

“The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed.  The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked.”

84. No fundamental common law right, privilege or immunity is affected by an interpretation of s.199(8B)(b) that extends its reach to the respondent’s second refusal: that is, the principle of legality is not apposite. But even if it were engaged, s.199 mandates that the second refusal be treated as a “second contempt…” and punished accordingly.

85. The regime for which s.199(8A) and (8B) provides is both punitive and coercive. Its punitive function is obvious enough. Its coercive element is evidenced in two ways: by the express provision in s.199 for discharge from prison before the end of the sentence where the court is satisfied that the person has purged the contempt^[41]; and by the incorporation of the Uniform Civil Procedure Rules 1999, which stipulate that “the court may order…discharge from prison before the end of the term”.^[42] 

86. To regard the s.199(8B) gradations in the mandatory minimums as not comprehending repetition of earlier conduct that constituted contempt would not give effect to their apparent coercive purpose.

Sentence

87. No basis was advanced to justify a sentence beyond the mandatory two years and six months; and that will be the sentence.