Allbeury v Corruption and Crime Commission
[2012] WASCA 84
•13 APRIL 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 13 OCTOBER 2011
FINAL
SUBMISSIONS : 8 NOVEMBER 2011
DELIVERED : 13 APRIL 2012
FILE NO/S: CACV 19 of 2011
BETWEEN: TRISTAN ROGER ALLBEURY
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 20 of 2011
BETWEEN :CLOVIS MURHABAZI CHIKONGA
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 21 of 2011
BETWEEN :STEPHEN LAURENCE SILVESTRO
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 22 of 2011
BETWEEN :TROY CRISPIN SMITH
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTIN CJ
Citation :CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26
File No :CIV 2870 of 2010, CIV 2871 of 2010, CIV 2872 of 2010, CIV 2875 of 2010
Catchwords:
Jurisdiction - Criminal contempt - Appeals against sentence by contemnors - Whether the Court of Appeal has jurisdiction to entertain the appeals - Corruption and Crime Commission Act 2003 (WA), s 163 - Supreme Court Act 1935 (WA), s 58(1) - Appeals competent
Criminal contempt - Sentencing - Contempt of the Corruption and Crime Commission - Relevant principles - Error of fact by sentencing judge - Whether error of fact material - Whether sentences manifestly excessive - Whether sentencing judge erred in failing to reduce the sentence of one of the contemnors for his plea of guilty
Legislation:
Acts Amendment (Court of Appeal) Act 2004 (WA)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), s 130(2)
Administration of Justice Act 1960 (UK), s 13
Corruption and Crime Commission Act 2003 (WA), s 7A, s 7B, s 96, s 160, s 162, s 163, pt 4,
Criminal Appeal Act 1907 (UK), s 3
Criminal Appeals Act 2004 (WA), s 23, pt 2, pt 3
Criminal Code (Qld), s 668D
Criminal Code (WA)
Criminal Code Act 1899 (Qld), s 8
Criminal Code Act 1913 (WA), s 4, s 7
Criminal Procedure Act 2004 (WA), s 183, pt 2 div 2
Criminal Procedure Rules 2005 (WA), pt 14
District Court of Queensland Act 1967 (Qld), s 118, s 129(1)
District Court of Western Australia Act 1969 (WA), s 63(1), s 79(1)
Interpretation Act 1984 (WA), s 5
Judicature Act 1873 (UK), s 47
Judicature Act 1876 (Qld), s 9, s 10, s 19
Rules of the Supreme Court 1909 (WA), O 42
Rules of the Supreme Court 1971 (WA), O 55
Sentencing Act 1995 (WA), s 3(3)(a)
Supreme Court Act 1880 (WA), s 18
Supreme Court Act 1886 (WA), s 1
Supreme Court Act 1921 (Qld)
Supreme Court Act 1935 (WA), s 4, 7(1), 16, 21, s 22(2), pt IV, s 58(1), s 58(1a), s 58(2)
Supreme Court Act 1995 (Qld), s 254
Supreme Court Act Amendment Act 1957 (WA)
Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 31(1)(a)
Supreme Court Ordinance 1861 (WA)
Result:
Appeals dismissed
Category: A
Representation:
CACV 19 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
CACV 20 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: A Padmanabham
Respondent: Corruption and Crime Commission of Western Australia
CACV 21 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
CACV 22 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
Case(s) referred to in judgment(s):
Ahnee v Director of Public Prosecutions [1999] 2 AC 294
Allcock v Hall [1891] 1 QB 444
Ardrey v Bartlett [2004] WASCA 256
Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308
Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80
Barmettler v Greer & Timms [2007] QCA 170
Bradshaw v Attorney‑General [1998] QCA 42; [2000] 2 Qd R 7
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Carter v The Managing Partner, Mallesons Stephen Jaques (Unreported, WASC, Library No 930374, 15 July 1993)
Carter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993)
Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2003] WASCA 30
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Connell v The Queen (No 5) (1993) 10 WAR 424
Conway v The Queen (2002) 209 CLR 203
Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986)
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Director of Public Prosecutions v Chidiac (1991) 25 NSWLR 372
Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533
Haskins v The Commonwealth [2011] HCA 28; (2011) 85 ALJR 836
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Heedes v Legal Practice Board [2005] WASCA 166
Henderson v Taylor [2006] QCA 490; [2007] 2 Qd R 269
Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Jemielita v The Queen (1994) 12 WAR 362
Keeley v Brooking [1979] HCA 28; (1979) 143 CLR 162
Kennedy v Lovell [2002] WASCA 226
Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Lim v Gregson [1989] WAR 1
Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
O'Shea v O'Shea and Parnell (1890) 15 PD 59
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221
Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527
R v Abell [2007] QCA 448
R v Ballinger [1961] QWN 24
R v Drever [2010] SASCFC 27
R v Foster; Ex parte Gillies [1937] St R Qd 67
R v Herring (Unreported, NSWSC, No 70140 of 1990, 3 October 1991)
R v Lowrie [1998] 2 Qd R 579
R v Ogawa [2009] QCA 307; [2011] 2 Qd R 350
R v Pearce (1992) 7 WAR 395
R v Queensland Television Ltd; Ex parte Attorney‑General [1983] 2 Qd R 648
R v Shannon (1979) 21 SASR 442
R v Wheeldon (1978) 33 FLR 402
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Re Contempt of Court by CBD [2002] ACTSC 87
Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158
Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)
Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846
Riebe v Riebe [1957] HCA 66; (1957) 98 CLR 212
Scott v Scott [1913] AC 417
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Stanbridge v Director of Public Prosecutions (Unreported, QCA, No 5416 of 1996, 27 May 1997)
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404
The State of Western Australia v O'Rourke [2010] WASCA 141
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Tieleman v The Queen [2004] WASCA 285
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28
Table of Contents
McLure P's reasons................................................................................................................ 10
Background
Construction of s 58 of the SCA
Buss JA's reasons.................................................................................................................... 17
Overview of the facts and circumstances of the contempts
The Supreme Court contempt proceedings
The grounds of appeal
The Commission's preliminary issue as to jurisdiction
The organisation of the balance of these reasons
Preliminary issue: the Supreme Court's jurisdiction under s 163(3) of the CCC Act
Preliminary issue: the distinction between civil and criminal contempt
Preliminary issue: criminal contempt as a common law offence and the nature of the court's jurisdiction
Preliminary issue: the source of a right of appeal
Preliminary issue: s 4 and s 7 of the Criminal Code Act 1913 (WA)
Preliminary issue: s 23 of the Criminal Appeals Act 2004 (WA)
Preliminary issue: s 183 of the Criminal Procedure Act 2004 (WA)
Preliminary issue: s 3(3)(a) of the Sentencing Act 1995 (WA)
Preliminary issue: the history of rights of appeal in England against decisions concerning criminal contempt
Preliminary issue: s 16(1)(a) of the Supreme Court Act 1935 (WA)
Preliminary issue: s 16(2) of the Supreme Court Act 1935 (WA)
Preliminary issue: the original s 58(1) of the Supreme Court Act 1935 (WA) and the 1957 amendments
Preliminary issue: s 58(1)(a) of the Supreme Court Act 1935 (WA)
Preliminary issue: s 58(1)(b) of the Supreme Court Act 1935 (WA)
Preliminary issue: the Rules of the Supreme Court of Western Australia
Preliminary issue: Queensland statutory provisions and case law as to rights of appeal against decisions concerning criminal contempt
Preliminary issue: its merits
Preliminary issue: the decision of the Full Court in Cullen
Preliminary issue: s 22(2) of the Supreme Court Act 1935 (WA)
Preliminary issue: specific reference to some of the Commission's arguments
Each appellant's ground of appeal alleging manifest excess: general principles
Each appellant's ground of appeal alleging manifest excess: the policy underpinning pt 4 of the CCC Act
Each appellant's ground of appeal alleging manifest excess: the facts and circumstances of the contempts
Each appellant's ground of appeal alleging manifest excess: the trial of each appellant except Mr Chikonga
Each appellant's ground of appeal alleging manifest excess: the standards of sentencing customarily observed with respect to the offence
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Allbeury
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Silvestro
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Smith
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Chikonga
Each appellant's ground of appeal alleging manifest excess: its merits
Mr Chikonga's ground of appeal concerning his plea of guilty
Mr Chikonga's ground of appeal concerning his plea of guilty: Martin CJ's error of fact
Mr Chikonga's ground of appeal concerning his plea of guilty: its merits
Conclusion
Mazza JA's reasons................................................................................................................ 71
McLURE P: I have had the advantage of reading the judgment of Buss JA. I agree with him that the appeals are competent. I also agree that the appeals should be dismissed generally for the reasons he gives. However, I propose to state my own reasons for concluding that the appeals are competent.
A right of appeal from a decision of a court was unknown to the common law and is entirely a creature of statute: Davern v Messel (1984) 155 CLR 21, 47. Thus, this court does not have jurisdiction to hear and determine an appeal unless a statute so provides. See also, s 20 of the Supreme Court Act 1935 (WA) (SCA). Whether a statute so provides is a question of construction.
Section 58 of the SCA deals with this court's jurisdiction. It relevantly provides:
(1)Subject as otherwise provided in this Act and to the rules of court, the Court of Appeal shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine ‑
(a)applications for a new trial or rehearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found given or made in any cause or matter tried or heard by a judge or before a judge and jury;
(b) … appeals from a judge and from a master whether sitting in court or in chambers;
…
(f)applications and appeals under Part 3 of the Criminal Appeals Act 2004 to the Court of Appeal;
(g)appeals under Part 2 of the Criminal Appeals Act 2004 that are ordered to be dealt with by the Court of Appeal;
(h)applications and appeals under Part 2 of the Criminal Appeals Act 2004 from a judge to the Court of Appeal;
…
(m)all causes and matters and proceedings which ‑
(a)by any Act of this State, or the rules of court; or
(b)by or under any Imperial Act, or Act of the Commonwealth of Australia,
are required to be heard and determined by the Court of Appeal.
…
(2)Any appeal, application, cause, matter or proceedings referred to in subsection (1) shall lie or may be made to, or may be brought before, the Court of Appeal which, subject as aforesaid, shall hear and determine the same, and questions incidental thereto.
Before focussing on issues of construction, it is helpful to sketch the relevant background which includes the historical position in English law relating to contempt of court and appeals therefrom.
Background
In England, as in Australia, contempt of court is divided into two categories, criminal contempt and civil contempt. In the period between the commencement of the Judicature Act 1873 (UK) in 1875 and 1960, one of the most important distinctions between criminal and civil contempts in England was that there was a right of appeal in relation to civil contempt but not in relation to criminal contempt. A right of appeal in criminal contempt was provided for in the Administration of Justice Act 1960 (UK), s 13.
Prior to the Judicature Act, England had one set of courts administering equity and another set of courts administering the common law. The Judicature Act united and consolidated the superior courts of law and equity in England into one Supreme Court of Judicature which comprised two divisions, the High Court, exercising original jurisdiction, and the Court of Appeal, exercising appellate jurisdiction. Law and equity were thereafter administered together by a single court. Section 19 of the Judicature Act provided that the Court of Appeal had jurisdiction to determine appeals from any judgment or order of the High Court. However, s 19 was subject to s 47 which provided that 'no appeal shall lie from any judgment of the … High Court in any criminal cause or matter'.
In O'Shea v O'Shea and Parnell (1890) 15 PD 59, the Court of Appeal (Cotton, Lindley & Lopes LJJ) held that criminal contempt is a criminal offence punishable at common law by summary process and thus was a 'criminal cause or matter' for the purposes of s 47. Accordingly, there was no right of appeal. This characterisation of criminal contempt as a criminal cause or matter was adopted and applied by the Full Court (Burt CJ, Brinsden & Kennedy JJ) in Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986). The appellant in Cullen had been convicted of, and sentenced to 6 months' imprisonment for, criminal contempt of court under s 63 of the District Court of Western Australia Act 1969 (WA) (DCA). Section 79 of the DCA conferred a right of appeal on a party to an 'action' or 'matter' who was dissatisfied with a final or interlocutory judgment. Those terms (which were defined) were held to be confined to civil proceedings. As the Full Court characterised the conduct as a criminal cause or matter, s 79 did not apply. Rights of appeal from the District Court to the Supreme Court in connection with criminal proceedings were at that time found in s 688 of the Criminal Code (WA) (the Code). Section 688 of the Code was confined to appeals from indictable offences. The Full Court also concluded that there was no right of appeal under s 58(1) of the SCA. Accordingly, the appeal was said to be incompetent.
One of the issues in this appeal is whether the Full Court's characterisation of criminal contempt proceedings as criminal rather than civil is inconsistent with the decision of the High Court in Hinch v Attorney‑General (Vic) (1987) 164 CLR 15. That was a case of criminal contempt. In considering whether the High Court should order the appellant to pay the costs of the High Court appeal, the court said:
Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the Court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event. There are many instances of the application of this rule to cases of contempt of court in this Court … (89).
I am not presently persuaded that the High Court in Hinch intended to assimilate criminal and civil contempts, at least for the purpose of rights of appeal. The observation, made in the context of a costs application, may mean nothing more than that criminal contempt is an offence which is punished by use of the civil procedures of the court. The existence or otherwise of a right of appeal is not a matter of procedure: Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28. Although it is unnecessary to resolve this issue for the purpose of determining the competence of this appeal, I will explain the basis of my reservation.
Civil contempt has always been regarded both in substance and as a matter of procedure as being within the court's civil jurisdiction. The consequence of that characterisation is that there has always been a right of appeal from both a finding of a civil contempt and the dismissal of a civil contempt application. That is not the case in relation to criminal contempt. A statute conferring a general right of appeal which includes contempt will not be construed to confer a right of appeal from the dismissal of an application for criminal contempt: Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, 412 (Deane J); Davern v Messel (33, 45 ‑ 61). This results from the application of the rule of statutory construction to the effect that a statutory provision will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly: Davern v Messel (32).
The question whether there was a right of appeal from the dismissal of a contempt application arose for determination by the Full Court of the Federal Court (Beaumont J, Lindgren & Lehane JJ agreeing) in Microsoft Corporation v Marks(No 1) (1996) 69 FCR 117, 126 ‑ 137. Microsoft had commenced Federal Court proceedings against the respondent for breach of copyright. The respondent consented to an injunction. Microsoft brought contempt proceedings alleging that the respondent had breached the consent orders. The trial judge dismissed the application and Microsoft appealed. There were allegations of contumelious conduct which may (but not must) transform what would otherwise be a civil contempt into a criminal contempt. The question was whether the general statutory right of appeal (in s 24 of the Federal Court of Australia Act 1976 (Cth)) included an appeal from a dismissal of a contempt of court claim. After considering all relevant authorities, including Hinch, the court concluded that there would be no right of appeal if the respondent's conduct constituted a criminal contempt (137). Beaumont J said:
I share the misgivings expressed by Samuels JA in Chidiac as to the utility of describing any contempt proceedings as 'quasi‑criminal'. In the interests of certainty in this area, I further agree with his Honour that for present purposes it is necessary to place the alleged conduct in question in one category or the other, that is, civil or criminal. For some purposes (eg costs and retrials) the distinction between civil and criminal contempt remains important. In other areas (eg the standard of proof and the scope of the accrued federal jurisdiction …[)] the distinction is now seen to be less important. But it has not been suggested in any of the authorities that the distinction should be ignored for the purpose of determining whether an appeal lies …
It follows, in my opinion, that Microsoft had a right to appeal here against the trial judge's decision if the proceedings were truly of a civil kind.
… In the whole of the circumstances, although a difficult question, the case should, in my opinion, be treated as civil, rather than criminal.
It follows that I would reject the objection to competency (137).
None of this analysis would have been necessary if Hinch was authority for the proposition that an action for criminal contempt is a civil proceeding for, inter alia, appeal purposes.
Construction of s 58 of the SCA
Against that background, I turn to the construction of s 58 of the SCA. The first issue is whether pars (f), (g) and (h) of s 58(1) are intended to cover the field in relation to criminal offences at common law. With the exception of the common law of contempt, all criminal offences in this jurisdiction derive from statute. Section 67 of the Interpretation Act 1984 (WA) deals with 'offences'. It provides that: offences are of two kinds, indictable and simple; an offence designated as a crime or misdemeanour is an indictable offence; an offence not otherwise designated is a simple offence; and the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA).
Criminal contempt falls outside the scope of the Criminal Procedure Act. Indeed, s 183 of the Criminal Procedure Act provides that it does not affect the authority of a court to deal with and punish a person summarily for an act or omission that is a contempt of the court, but a person cannot be so punished and also punished for an offence under that Act constituted by the same act or omission. This is in recognition of the fact that there is scope for overlap between criminal contempt at common law and s 178 of the Code: see The State of Western Australia v O'Rourke [2010] WASCA 141.
The procedure for contempt of court, civil and criminal, is provided for in the civil procedure rules: see O 55 of the Rules of the Supreme Court 1971 (WA) (the Rules). Indeed, prior to an amendment to the Rules in April 2005, the Full Court had, with specified exceptions, sole jurisdiction to order that a person in contempt be committed to prison.
The Criminal Appeals Act 2004 (WA) covers the field in relation to appeals from (statutory) offences as defined in the Interpretation Act. Part 3 of the Criminal Appeals Act deals with appeals from superior courts, defined to mean the District Court and Supreme Court. Part 3 is confined to appeals in relation to offenders who are charged with (s 26) or convicted (or acquitted) of an offence on indictment. An 'indictment' is a document that contains one or more charges of an indictable offence and is lodged with a superior court: Criminal Appeals Act, s 4(1); Criminal Procedure Act, s 3(1). Part 3 of the Criminal Appeals Act is not intended to cover the field in relation to criminal contempts at common law. Moreover, in this jurisdiction there is currently no statutory equivalent to s 47 of the Judicature Act which expressly excludes a right of appeal.
The remaining question is whether there is a right of appeal from a conviction or sentence for criminal contempt of court under any paragraph of s 58(1) of the SCA.
The text of s 58(1)(b) is very wide. It is not in terms confined by reference to any subject matter or category of decisions. In particular, it is not confined to civil proceedings and I see no justification for reading it down to exclude a decision that is sui generis. Indeed, it is inappropriate to read down provisions conferring jurisdiction by imposing limitations not found in the express words unless there is something to indicate to the contrary: The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc (1994) 181 CLR 404, 421; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205. Section 58(1)(b) is wide enough to confer a right of appeal in this case, being an appeal from a judgment of conviction and sentence by a judge of the Supreme Court.
For these reasons I conclude that this court has jurisdiction to hear and determine these appeals under s 58(1)(b) of the SCA. This conclusion is not inconsistent with Cullen which concerned an appeal from a decision of a judge of the District Court.
However, I am not persuaded that s 58(1)(a) is the source of jurisdiction to appeal from a conviction or sentence for contempt of court or, indeed, the source of any appellate jurisdiction at all. Section 58(1) relates to this court's jurisdiction in general, not just its appellate jurisdiction. Only pars (b), (f), (g), (h) and (i) of s 58(1) confer appellate jurisdiction. Those paragraphs identify the decisions and/or the decision‑makers from which or from whom an appeal lies. Paragraph (a) of s 58(1), which refers to 'applications' not appeals, does not do so. If par (a) of s 58(1) was a source of appellate jurisdiction, it would be unrestricted in terms of subject matter and decision‑maker. That is obviously not the legislative intent. The parties were unable to assist in identifying the scope and purpose of s 58(1)(a). Arguably, it has two purposes. The first is to confer power on the Court of Appeal to grant relief of the type specified therein, as appropriate, in a proceeding in which it has jurisdiction under s 58(1). There is some support for that view: CSR Ltd v Della Maddalena (2006) 80 ALJR 458 [14] ‑ [18]; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 [71] ‑ [72]; Ardrey v Bartlett [2004] WASCA 256 [29] ‑ [30] (O 63 of the Rules was repealed in April 2005). However, it is not the sole source of power. See for example Criminal Appeals Act, s 30 ‑ s 34. If s 58(1)(a) does not itself confer power, it confirms the existence of the inherent power necessary to the effective exercise of the jurisdiction granted: Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268 [35]‑ [36].
The second purpose is to preserve any original jurisdiction that the Full Court had at the commencement of the SCA in 1935 not otherwise expressly referred to in s 58(1). The nature of any such jurisdiction is likely to be found in English legal history.
The English courts had original jurisdiction to correct error in the absence of statutory appellate jurisdiction. The correction of error was undertaken by a full court ('the court in banc') which was not an appeal court. The nature and extent of this English jurisdiction has been considered by the High Court: Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, 228 ‑ 229; Conway v The Queen (2002) 209 CLR 203 [7] ‑ [29]; Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308, 315; CDJ v VAJ (1998) 197 CLR 172 [95] ‑ [96]. See also South Eastern Railway Co v Smitherman (1883) 47 JP 773; Allcock v Hall [1891] 1 QB 444, 446 ‑ 447; Baker JH, An Introduction to English Legal History (2002) 82 ‑ 85, 136 ‑ 141; Windeyer WJV, Lectures on Legal History (1938) 102 ‑ 103.
That s 58(1)(a) is also a reference to historical non‑appellate proceedings is supported by s 59(2), (4) and (6), which relevantly provide:
(2)Subject to the provisions of this Act, any application for a new trial may be made on any ground on which a new trial could be ordered in an action at law immediately before the commencement of this Act.
…
(4)On the hearing of any such application the Court of Appeal shall have and may exercise all such powers as are exercisable by it upon the hearing of an appeal …
…
(6)Except as may be otherwise provided by the rules of court every application ‑
(i)for a new trial; or
(ii)to set aside a verdict, finding or judgment,
in any cause or matter where there has been a trial by a judge sitting without a jury, shall be made by way of appeal to a Court of Appeal in accordance with the rules of court. (emphasis added)
It is apparent from s 59(6) that not all applications to exercise the powers in s 58(1)(a) are required to be made by way of appeal. See the second reading speech for the bill that became the 1935 SCA: Western Australia, Parliamentary Debates, Legislative Assembly, 14 November 1935, 1790 (Mr JC Willcock, Minister for Justice). However, it is well beyond the needs of this case to attempt to identify what, if any, original jurisdiction not otherwise specified falls within s 58(1)(a). It is sufficient to say that it does not confer any rights of appeal.
BUSS JA: On 4 February 2011, Martin CJ sentenced each of the appellant in CACV 19 of 2011 (Mr Allbeury), the appellant in CACV 20 of 2011 (Mr Chikonga), the appellant in CACV 21 of 2011 (Mr Silvestro) and the appellant in CACV 22 of 2011 (Mr Smith) to terms of immediate imprisonment as punishment for contempt of the respondent (the Commission).
By s 163(3) of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act), relevantly, the Supreme Court has jurisdiction to punish a contempt of the Commission as if the contempt were a contempt of that court.
Mr Allbeury was sentenced to a total of 2 years 3 months' imprisonment as punishment for two separate contempts of the Commission. The contempts were constituted by:
(a)during an examination being conducted by the Commission, failing to answer questions that were relevant to an investigation being conducted in relation to 'section 5 offences' under the CCC Act; and
(b)insulting the Commission during the examination.
The individual sentence for the first contempt was 2 years' imprisonment and the individual sentence for the second was 3 months' imprisonment. His Honour ordered that the sentences be served cumulatively.
Each of Mr Chikonga, Mr Silvestro and Mr Smith was sentenced to 2 years' imprisonment as punishment for a single contempt of the Commission. Each contempt was constituted by his refusal to be sworn or
affirmed at the Commission with the consequence that no questions were put to him.
The appellants have appealed to this court against sentence.
Overview of the facts and circumstances of the contempts
At the material time, the Commission was exercising the powers conferred on it by pt 4 of the CCC Act. Part 4 is headed, 'Organised crime: exceptional powers and fortification removal'.
The Commission summonsed numerous people to appear and give evidence in relation to the investigation. The people summonsed included each of the appellants.
Mr Allbeury was served with a summons under s 96 of the CCC Act to appear before the Commission on 12 November 2010. On that date he attended at the Commission and was affirmed. However, he refused to answer any of the questions put to him by the Commissioner or counsel assisting the Commission. In addition to this refusal, Mr Allbeury repeatedly said, in response to questions, 'get fucked' or 'fuck off'.
Mr Chikonga was served with a summons under s 96 of the CCC Act to appear before the Commission on 12 November 2010. On that date he attended at the Commission. However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.
Mr Silvestro was served with a summons under s 96 of the CCC Act to appear before the Commission on 11 November 2010. On that date he attended at the Commission. However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.
Mr Smith was served with a summons under s 96 of the CCC Act to appear before the Commission on 17 November 2010. Mr Smith attended and reported to the Commission on 18 November 2010. A warrant which was signed on 17 November 2010 for his arrest was not executed as he attended voluntarily on 18 November 2010. The Commissioner held that Mr Smith was at the Commission, on 18 November 2010, under the force of the summons (ts 18/11/10, page 647). However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.
The Supreme Court contempt proceedings
On 22 November 2010, the Commission filed an originating motion in the Supreme Court against each appellant, pursuant to s 163 of the CCC Act and O 55 r 2 and r 4 of the Rules of the Supreme Court 1971, for an order that he be punished for contempt.
Each of the appellants (except Mr Chikonga) appeared on 25 November 2010, and entered a plea of not guilty. The hearing of the Commission's applications was adjourned to 13 December 2010.
On 25 November 2010, Martin CJ issued a warrant for Mr Chikonga's arrest as a result of his failure to appear on that date, and adjourned his case to 13 December 2010.
The trial of the appellants (except Mr Chikonga) proceeded on 13 December 2010. The evidence adduced by the Commission comprised certificates and affidavits which had previously been served. None of the deponents was required for cross‑examination. Mr Allbeury, Mr Silvestro and Mr Smith did not give evidence. Each of them relied solely on legal submissions.
On 13 December 2010, his Honour found each of the appellants (except Mr Chikonga) guilty of the alleged contempts.
The warrant for Mr Chikonga's arrest was not executed until 15 December 2010. On 21 January 2011, he appeared before Martin CJ and was convicted on his plea of guilty.
Each of the appellants was sentenced on 4 February 2011. On that date, his Honour published written reasons for decision. See Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26.
The grounds of appeal
Each of Mr Allbeury, Mr Silvestro and Mr Smith relies on a single ground of appeal. Mr Chikonga relies on two grounds of appeal. The single ground relied on by Mr Allbeury, Mr Silvestro and Mr Smith, and ground 1 of Mr Chikonga's grounds, are identical. It is alleged that Martin CJ erred in law by imposing a sentence that was manifestly excessive 'in light of the standards of sentencing customarily observed with respect to these crimes, the place which the criminal conduct occupies in the scale of seriousness of crimes of this type, and all of the appellant's personal circumstances'.
Ground 2 of Mr Chikonga's grounds asserts that his Honour erred in law by failing to give him 'any credit for his plea of guilty and thereby failed to reduce the sentence imposed'.
The Commission's preliminary issue as to jurisdiction
The Commission raised a preliminary issue as to this court's jurisdiction to entertain the appeals.
Counsel for the Commission submitted that there is no right of appeal from a decision of a Supreme Court judge that an alleged contemnor is guilty of contempt or from the sentence imposed in respect of the contempt.
Counsel for the appellants, in his written submissions filed before the hearing of the appeal, submitted that this court had jurisdiction to hear the appeal under s 58(1)(a) of the Supreme Court Act 1935 (WA). He did not rely on any other provision of s 58(1).
At the hearing, I inquired of counsel for the appellants why he did not rely on s 58(1)(b) of the Act (appeal ts 4 ‑ 7). During the hearing, counsel broadened his submissions to rely on s 58(1)(b). Pursuant to leave granted by this court, the appellants and the Commission filed supplementary written submissions after the hearing in relation to s 58(1)(b).
The organisation of the balance of these reasons
It is convenient, first, to deal with the preliminary issue raised by the Commission and then with the grounds of appeal relied on by the appellants.
Preliminary issue: the Supreme Court's jurisdiction under s 163(3) of the CCC Act
Section 160(1) of the CCC Act provides that a person served with a summons under s 96 of that Act requiring the person to attend and give evidence who:
(a)refuses or fails to be sworn or make an affirmation; or
(b)fails to answer any question relevant to the investigation that the Commission requires the person to answer,
is in contempt of the Commission.
By s 162(1)(a) of the CCC Act, a person who insults the Commission while the Commission is conducting an examination is in contempt of the Commission.
The issue of whether a person is in contempt of the Commission is determined by applying the relevant provisions of the CCC Act (in the present case, s 160(1) and s 162(1)(a)) to the relevant facts and circumstances.
In the present case, Mr Chikonga, by his plea of guilty, admitted that he was in contempt of the Commission, as alleged. The other appellants were convicted of their alleged contempts after a trial.
By s 163(1) of the CCC Act, where a contempt of the Commission is alleged to have taken place, the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt. By s 163(2), such a certificate is prima facie evidence of the matters certified in it.
Section 163(3) of the CCC Act provides that 'the Supreme Court has jurisdiction' to punish a contempt of the Commission 'as if the contempt were a contempt of that Court'.
The words 'as if' in s 163(3) are a deeming device.
In Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158, McHugh J said:
In R v Hughes ((2000) 202 CLR 535 at 551 [24]), this Court said that the use of the phrase 'as if' was 'a convenient device for reducing the verbiage of an enactment'. But the expression always introduces a fiction or a hypothetical contrast. It deems something to be what it is not or compares it with what it is not [115].
See also Haskins v The Commonwealth [2011] HCA 28; (2011) 85 ALJR 836 [95] (Heydon J).
The words 'as if' in s 163(3) create a statutory fiction. Each contempt in question is to be taken to be a contempt of the Supreme Court. Jurisdiction is conferred on the Supreme Court to punish each appellant for his contempt of the Commission on the deemed basis that the contempt was a contempt of that court. Order 55 of the Rules of the Supreme Court 1971 (WA) therefore applies. See Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533 [22] (McLure JA, Wheeler JA & Le Miere AJA agreeing).
Neither s 163(3) nor any other provision of the CCC Act distinguishes between the General Division of the Supreme Court and the Court of Appeal.
Consistently with the deeming device in s 163(3):
(a)the contempt of the Commission which is brought before the Supreme Court is to be classified, if necessary, as a criminal contempt or a civil contempt in accordance with the principles that govern this classification under the law relating to contempts of the Supreme Court;
(b)the contempt is to be classified, if necessary, as a contempt in the face of the Commission or another kind of contempt in accordance with the principles that govern this classification under the law relating to contempts of the Supreme Court; and
(c)the nature and extent of the jurisdiction conferred on the Supreme Court under s 163(3) is commensurate with the nature and extent of any original jurisdiction of the General Division, and any original or appellate jurisdiction of the Court of Appeal, under the law relating to contempts of the Supreme Court.
Preliminary issue: the distinction between civil and criminal contempt
There is a distinction between civil and criminal contempt of court. This distinction is based on the difference between proceedings which are remedial or coercive in the interest of a private individual (civil contempt) and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process (criminal contempt). See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson & Deane JJ); Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey & Gaudron JJ).
The critical point is whether the contempt proceedings are in essence punitive (in which case they will be classified as 'criminal') or whether they are in essence remedial or coercive (in which case they will be classified as 'civil'). See Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [22] (Kirby J), [132] ‑ [133] (Hayne, Heydon & Crennan JJ).
In Witham, Brennan, Deane, Toohey and Gaudron JJ said that the differences upon which the distinction between civil and criminal contempt is based are, in significant respects, 'illusory' (534). Other judges of the High Court have described the distinction as 'unsatisfactory' (Mudginberri Station (107)) and have said that it occasions 'very great difficulty' (Mudginberri Station (108)).
In Hinch v Attorney-General(Vic) [1987] HCA 56; (1987) 164 CLR 15, Deane J expressed the view that all proceedings for contempt which seek the imposition of punishment upon an alleged contemnor for a past or continuing breach of the law 'must realistically be seen as essentially criminal in nature' (49). (emphasis added) This was endorsed by Brennan, Deane, Toohey and Gaudron JJ in Witham (534). The view that proceedings for contempt must realistically be seen as, in essence, criminal in nature underpinned the High Court's conclusion that all charges of contempt must be proved beyond reasonable doubt. See Witham (534); Hearne [132].
Preliminary issue: criminal contempt as a common law offence and the nature of the court's jurisdiction
There is a long line of authority that a criminal contempt of court is a common law offence whereas a civil contempt of court does not involve an offence. See, for example, Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510, 516 (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ); Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 497 ‑ 498 (Windeyer J); Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 306 (PC).
In Western Australia, a summary procedure is adopted for the trial of an alleged criminal contempt. The historical evolution from trial on indictment to summary trial of alleged criminal contempts in England and New South Wales is outlined by McHugh JA in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695, 707 ‑ 708. See also Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [12] ‑ [14] (Gleeson CJ & Gummow J) in relation to the use of the procedure in other Australian jurisdictions.
In Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48, a Full Court of the Federal Court (Bowen CJ, Evatt & Deane JJ) said that proceedings for criminal contempt are, in some respects, sui generis, but they are nevertheless 'criminal in character', and a finding of guilt of criminal contempt is a 'conviction' of an 'offence' (53).
Although a criminal contempt is a distinct offence, it attracts remedies which are sui generis. It is not part of the ordinary criminal law at common law. See Mudginberri Station (115); Ahnee (306).
In Mudginberri Station, Gibbs CJ, Mason, Wilson and Deane JJ said that there was 'much to be said for the view that all contempts should be punished as if they are quasi‑criminal in character' (109). The difficulties with the concept of 'quasi‑criminality' were adverted to by Samuels JA (Mahoney & Meagher JJA agreeing) in Director of Public Prosecutions v Chidiac (1991) 25 NSWLR 372, 376 ‑ 377. See also Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117, 137 (Beaumont J, Lindgren & Lehane JJ agreeing).
In Hinch, the appellants were convicted of multiple counts of contempt by interfering with the proper administration of justice. They published material in circumstances where the publication tended to prejudice the fairness of pending criminal proceedings. Each of the contempts was a criminal as distinct from a civil contempt. Upon the High Court dismissing the appellants' appeals, it was submitted on the appellants' behalf that, in the exercise of its discretion, the court should not make any order for costs. The appellants sought to draw an analogy between their case and an application for special leave to appeal following a trial on indictment for a criminal offence. In the latter case, the established practice is for the court not to make any order for costs, except where the Crown or the State is an unsuccessful applicant. The High Court rejected the suggested analogy. Mason CJ, Wilson, Deane, Toohey and Gaudron JJ made these observations as to the procedural nature of proceedings for criminal contempt and the nature of the jurisdiction of the court that is attracted by such proceedings:
Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event (89).
Brennan, Deane, Toohey and Gaudron JJ emphasised in Witham that proceedings for contempt (although essentially criminal in nature) are not to be equated with the trial of a criminal charge (534). Their Honours noted the 'clear procedural differences' between each form of proceeding (534).
In Microsoft, the appellant had applied to a single judge of the Federal Court for committal of the respondent to prison, or other punishment, for contempt arising from alleged breaches by the respondent of orders made in the course of copyright proceedings between the parties. The primary judge found that the alleged contempt was not made out on the evidence and dismissed the application for committal. On appeal to a Full Court of the Federal Court, Beaumont J (Lindgren & Lehane JJ agreeing) rejected the respondent's contention that the appeal was not competent.
The appellant in Microsoft relied on s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), whereby, relevantly, the Full Court was invested with jurisdiction to hear and determine, amongst other things, appeals from a judgment of the Federal Court constituted by a single judge.
Beaumont J applied the Mastertouch principle, namely, that the Full Court's appellate jurisdiction under s 24(1)(a) does not extend to permit an appeal from an acquittal in criminal proceedings. See Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, 412 ‑ 413 (Deane J, Smithers & Riley JJ agreeing). See also Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 33 (Gibbs CJ, Wilson J agreeing).
Beaumont J said:
[I]f, in substance, the proceedings at first instance were criminal in the sense that their object were to punish then … no appeal could lie. On the other hand, if the substance and object of the proceedings were remedial, then an appeal was competent as in any case of an alleged civil contempt (136).
That is, his Honour decided that 'the test for appealability' under s 24(1)(a), in the context of an appeal against the dismissal of an application for committal for contempt, should be whether the alleged conduct in question was a civil contempt or a criminal contempt (137).
In the result, Beaumont J was of the view that the appeal was competent in that the proceedings before the primary judge should 'be treated as civil, rather than criminal' (137).
In R v Ogawa [2009] QCA 307; [2011] 2 Qd R 350, Keane JA (Chesterman JA & Jones J agreeing) cited Hinch as authority for the proposition that 'proceedings for contempt belong to the civil jurisdiction of the court' [167]. Similarly, in Re Contempt of Court by CBD [2002] ACTSC 87, Miles CJ referred to Hinch in support of the proposition that 'contempt proceedings are on the civil side of the Court' [14]. In each of Ogawa and CBD, the alleged contempt was criminal rather than civil.
In Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, Gaudron, Gummow and Callinan JJ made an order for costs in relation to a contempt proceeding in the Court of Appeal of New South Wales. Their Honours said that the contempt proceeding in the Court of Appeal was 'criminal in nature but it was not a criminal prosecution' [58] (footnotes omitted).
Hayne J emphasised in Re Colina that although it is correct to refer to an 'offence' of contempt, the use of that term must not obscure 'the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law' [109]. His Honour then referred to the passage in Hinch set out at [70] above. Hayne J went on to observe that there are many forms of contempt: 'there is no single "offence" of the kind that the criminal law knows' [109].
Preliminary issue: the source of a right of appeal
A right of appeal is a creature of statute. It is not a common law remedy. See Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 ‑ 436 (Dixon J); Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192, 201 ‑ 202 (Windeyer J).
Accordingly, at common law there is no right of appeal against a decision concerning contempt of court.
In Hearne, Hayne, Heydon and Crennan JJ said that the conclusion of the High Court in Witham (534), that all charges of contempt must be proved beyond reasonable doubt, eliminated one possible difference between civil and criminal contempt. However, their Honours then said that this conclusion 'does not affect the question of appellate rights' [132].
An issue arose in Hearne as to whether an appeal to the Court of Appeal of New South Wales against the decision of the primary judge dismissing applications for contempt was competent. The determination of that issue turned upon the meaning and effect of s 101(5) and s 101(6) of the Supreme Court Act 1970 (NSW). Section 101(6) assumed that there was a difference, in the context of appellate rights, between civil and criminal contempts [132]. Hayne, Heydon and Crennan JJ said that under this legislative framework the distinction between civil and criminal contempts remained in relation to rights to appeal against the dismissal of contempt proceedings [132]. See also Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [71] (Beazley JA, McColl JA agreeing).
Preliminary issue: s 4 and s 7 of the Criminal Code Act 1913 (WA)
By s 4 of the Criminal Code Act 1913 (WA), no person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Criminal Code or, relevantly, some other statute of Western Australia.
Section 7 of the Criminal Code Act contains a savings provision in respect of contempt of court. It provides:
Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court'; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission.
The effect of s 7 is to preserve criminal contempt of court as a common law offence triable summarily. Section 7 differentiates contempt of court and sets it apart from the structure of the Criminal Code. See Henderson v Taylor [2006] QCA 490; [2007] 2 Qd R 269 [5] (Mackenzie J), [76] (Philip McMurdo J).
Preliminary issue: s 23 of the Criminal Appeals Act 2004 (WA)
Section 23(1) of the Criminal Appeals Act 2004 (WA) confers rights of appeal to this court on an offender who has been convicted of 'an offence on indictment'. Section 23(2) of that Act confers rights of appeal on an offender 'convicted by a court of summary jurisdiction and sentenced by a superior court'.
In the present case, none of the appellants was convicted of an offence 'on indictment'. Nor were they convicted by a court of summary jurisdiction. Therefore, there is no right of appeal to this court under s 23.
The Criminal Appeals Act does not confer any right of appeal on a person who has been convicted in the Supreme Court of the common law offence of criminal contempt, whether committed in the face of the court or out of court.
Preliminary issue: s 183 of the Criminal Procedure Act 2004 (WA)
Section 183 of the Criminal Procedure Act 2004 (WA) provides that the Criminal Procedure Act does not affect the authority of a court to deal with and punish a person summarily for an act or omission that is a contempt of the court, but a person cannot be so punished and also punished for an offence under that Act constituted by the same act or omission.
Neither the Criminal Procedure Act nor the Criminal Procedure Rules 2005 (WA) make any provision with respect to appeals by persons who have been convicted in the Supreme Court of the common law offence of criminal contempt. The provisions of the Criminal Procedure Rules with respect to appeals are confined to appeals under pt 2 div 2 of the Criminal Appeals Act. See pt 14 of the Rules.
Preliminary issue: s 3(3)(a) of the Sentencing Act 1995 (WA)
Section 3(3)(a) of the Sentencing Act 1995 (WA) provides that that Act does not apply to or in respect of a person being punished by the Supreme Court or any other court for or as for contempt of court.
Preliminary issue: the history of rights of appeal in England against decisions concerning criminal contempt
As Mason and Brennan JJ noted in Davern, before the introduction of the Criminal Appeal Act 1907 (UK), there was no right of appeal in England from either a conviction or an acquittal of an accused who had been tried on indictment (47). There were methods of review available. These comprised reserving a case for the Court for Crown Cases Reserved, applying for a new trial where the proceedings were tried in the Court of Queen's Bench and appealing by means of a writ of error to a court of error (47).
Before the enactment of the Administration of Justice Act 1960 (UK), there was no right of appeal in England against a decision concerning criminal contempt, whether committed in the face of the court or out of court. The absence of such a right of appeal was not a deliberate decision of the Parliament, but an anomalous or purely fortuitous position resulting from inadequately drafted legislation. See Justice, British Section of the International Commission of Jurists, Contempt of Court, Report (1959) 35‑ 36; Miller CJ, Contempt of Court, 3rd ed (2000) [2.25]; Borrie & Lowe, The Law of Contempt, 3rd ed (1996) 531.
Although the Criminal Appeal Act 1907 (UK) conferred a general right of appeal in criminal cases to the Court of Criminal Appeal, s 3 of that Act limited those appeals to cases of conviction on indictment, and therefore excluded cases of criminal contempt dealt with summarily. Section 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925 (UK) excluded from the jurisdiction of the Court of Appeal 'any criminal cause or matter' on appeal from the High Court except as provided by the Criminal Appeal Act 1907 or that Act. Case law established that a criminal contempt was a 'criminal cause or matter' within that provision.
In Scott v Scott [1913] AC 417, the appellants were found guilty of contempt of court for publishing copies of a transcript of proceedings in contravention of an order that the proceedings be heard in camera. Bargrave Deane J ordered the appellants to pay the costs of the motion for contempt. The House of Lords held that the order for costs was not a judgment in a 'criminal cause or matter' within s 47 of the Judicature Act 1873 (UK) and, accordingly, no appeal lay from it. Lord Shaw of Dunfermline observed:
In the year 1908 Parliament interposed to give a right of appeal in criminal causes. The Court of Appeal in the present case has held that no appeal lies from the judgment of Bargrave Deane J, because the decision of the learned judge is in a criminal cause or matter. Grant, accordingly, that this is so; yet, nevertheless, the Criminal Appeal Act, 1907, affords no remedy to the unfortunate appellants.
Under the argument against them they have been denied a civil appeal because their conduct was indictable, and under the Act of 1907 they can obtain no remedy by way of criminal appeal because they have not been convicted on indictment. In juggles of that kind the rights of the citizen are lost (486 ‑ 487).
The Administration of Justice Act 1960 was enacted in response to the recommendations in Justice, British Section of the International Commission of Jurists, Contempt of Court, Report (1959). By s 13 of that Act, there is a right of appeal in the United Kingdom in all cases of civil or criminal contempt dealt with summarily. It creates a right of appeal from any order or decision in the exercise of jurisdiction to punish for contempt of court. See Committee on Contempt of Court, United Kingdom, Final Report (1974) [189].
Preliminary issue: s 16(1)(a) of the Supreme Court Act 1935 (WA)
Since the Supreme Court Act 1935 (WA) was enacted, s 16(1)(a) of that Act has provided:
Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court ‑
(a)is invested with and shall exercise such and the like jurisdiction, powers, and authority within Western Australia and its dependencies as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the Judges thereof, had and exercised in England at the commencement of the Supreme CourtOrdinance 1861;
… (footnote omitted).
The Supreme Court's jurisdiction to punish for contempt of court is conferred by s 16(1)(a), it being a jurisdiction similar to that which the Court of Queen's Bench had exercised in 1861. See Cullen v The Queen (Unreported, WASC, Library No 6450A, 25 September 1986) 7 (Burt CJ).
Preliminary issue: s 16(2) of the Supreme Court Act 1935 (WA)
When the Supreme Court Act 1935 (WA) was enacted, s 16(2) of that Act provided:
There shall be vested in the Supreme Court and the Judges thereof all original and appellate jurisdiction which, under and by virtue of any statute which came into force in Western Australia after the commencement of the Supreme Court Act 1880, and is not repealed, was immediately before the commencement of this Act vested in or capable of being exercised by the Court or a Judge thereof, and such other jurisdiction as by and under this Act or any subsequent statute is conferred on or vested in the Court and the Judges thereof. (footnote omitted).
See also s 21(3) and s 21(4).
By the Supreme and District Courts (Miscellaneous Amendments) Act 1991 (WA), the words 'or otherwise' were inserted after the phrase 'under this Act or any subsequent statute' in s 16(2).
No imperial statute which came into force in Western Australia after the commencement of the Supreme Court Act 1880 (WA) and before the commencement of the Supreme Court Act 1935 (WA), and was not repealed, vested in the Supreme Court or the judges thereof any appellate jurisdiction in relation to criminal contempt. As I have mentioned, before the enactment of the Administration of Justice Act 1960 (UK), there was no right of appeal in England against a decision concerning criminal contempt, whether committed in the face of the court or out of court.
In Lim v Gregson [1989] WAR 1, 4 ‑ 11, a judgment of the Full Court of the Supreme Court of Western Australia, Malcolm CJ reviewed the legislation in Western Australia which established the Supreme Court and conferred its civil, criminal and appellate jurisdiction.
The Supreme Court was established by the Supreme Court Ordinance 1861. The jurisdiction of the court was consolidated by the Supreme Court Act 1880. As Malcolm CJ noted, the origins of s 58(1)(b) of the Supreme Court Act 1935 (WA) may be found in s 18 of the Supreme Court Act 1880.
By s 18:
Every order made by a Judge in Chambers (except orders made in the exercise of such discretion as aforesaid) may be set aside or discharged upon notice by the Full Court.
In Lim, Malcolm CJ observed in relation to s 18:
This was not formulated in terms of a provision for an appeal as such, although it seems to have been intended to provide a right of appeal, being based upon s 50 of the Judicature Act 1873. The exception related to orders as to costs only which, by s 17 were not 'subject to any appeal, except by leave of the Court or the Judge making such order': cf s 49 of the Judicature Act. Section 27 of the Act preserved 'the practice and procedure in all criminal causes and matters' subject to any rules of court to be made under the Act (10).
The Supreme Court Act 1886 (WA) clarified the jurisdiction of the Full Court as a court of appeal. Section 1 of that Act provided:
The Full Court as constituted by 'The Supreme Court Act 1880' shall be a Court of Appeal, and shall have jurisdiction and power to hear and determine appeals from any judgment or order of the Supreme Court or of any Judges or Judge thereof, subject to the provisions of the said Act, and to such rules and orders of Court now in force for regulating the terms and conditions on which appeals shall be allowed, or as may from time to time be made, in accordance with the provisions of the said Act.
In Lim, Malcolm CJ expressed the view that s 18 of the 1880 Act, read with s 1 of the 1886 Act, was sufficient to confer on the Full Court jurisdiction to set aside or discharge, by way of appeal, any order made by (relevantly to the decision in Lim) a judge in chambers (10).
His Honour also made these comments about the statutory provisions in Western Australia with respect to criminal appeals in force before the commencement of the Supreme Court Act 1935 (WA):
The Criminal Code Act [1902] and the 1902 Code were repealed by the Criminal Code Act Compilation Act 1913 and replaced by the Criminal Code Amendment [sic] Act 1913 and the Criminal Code. Chapter LXIX of the Code introduced the initial provisions for appeal to the Full Court sitting as a Court of Criminal Appeal from conviction or sentence: see ss 687 and 688 (11).
Preliminary issue: the original s 58(1) of the Supreme Court Act 1935 (WA) and the 1957 amendments
The Supreme Court Act1935 (WA) consolidated and amended the law relating to the Supreme Court.
Section 58(1) of the original 1935 Act provided, relevantly:
Subject as otherwise provided in this Act and to the Rules of Court, the Full Court shall hear and determine ‑
(a)Applications for a new trial or re‑hearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found given or made in any cause or matter tried or heard by a Judge or before a Judge and jury;
(b)Appeals from a Judge whether sitting in court or in chambers;
…
(g)Appeals to the Court of Criminal Appeal under and subject to Chapter LXIX of the Criminal Code;
…
Section 58(1) appeared in pt IV of the original 1935 Act. Part IV was headed, 'Sittings and Distribution of Business'.
In Riebe v Riebe [1957] HCA 66; (1957) 98 CLR 212, the High Court decided that s 58(1)(b) of the original 1935 Act did not confer appellate jurisdiction on the Full Court in relation to an order made under the Matrimonial Causes and Personal Status Code 1948 (WA). Section 111 of the original 1935 Act had conferred a full right of appeal on either party to a matrimonial cause. However, s 111 and the other provisions of pt VI of the original 1935 Act were repealed and replaced only by s 51 of the Matrimonial Causes and Personal Status Code. It was therefore necessary for the respondent in Riebe to rely on other provisions of the Supreme Court Act, in particular, s 58(1)(b).
Dixon CJ, Webb and Taylor JJ outlined some of the legislative history of the establishment of the Supreme Court and the conferral on it of jurisdiction. Their Honours said:
It may be remarked that the Supreme Court Act 1880 contained the provisions of the Judicature Act 1873 of the United Kingdom. Then followed the Supreme Court Act 1886, the purpose of which appeared from the preamble which recited that by the Supreme Court Act 1880 due provision had not been made for the purpose of facilitating appeals in bankruptcy and other matters to the Full Court. The Act provided that the Full Court as constituted by the Supreme Court Act 1880 should be a court of appeal and should have jurisdiction and power to hear and determine appeals from any judgment or order of the Supreme Court or of any judges or judge thereof, subject to the provisions of the said Act and to such rules and orders of the court now in force for regulating the terms and conditions on which appeals should be allowed or as might from time to time be made in accordance with the provisions of the said Act. It will be noticed that under this provision the appellate jurisdiction of the Full Court is described as relating to 'any judgment or order of the Supreme Court or of any judge or judges thereof'. These words do not, according to their legal meaning, include a decree in divorce (219 ‑ 220).
Dixon CJ, Webb and Taylor JJ held that s 58(1)(b) merely provided for the distribution of business:
In the enactment of s 58(1)(b) of the Supreme Court Act it seems reasonably clear that no more was intended than to provide for the distribution of business, as the heading of the Part in which the section stands seems to show (220 ‑ 221).
By the Supreme Court Act Amendment Act 1957 (WA), and in response to the High Court's decision in Riebe, s 58(1) of the original 1935 Act was amended by substituting for the passage, 'shall hear and determine', in the chapeau, the passage, 'shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine'.
Also, the 1957 amending Act added subsection (2), as follows:
(2)Any appeal, application, cause, matter or proceedings referred to in subsection (1) of this section shall lie or may be made to, or may be brought before, the Full Court which, subject as aforesaid, shall hear and determine the same, and questions incidental thereto.
In Lim, Malcolm CJ said in relation to the effect of the 1957 amending Act:
Subsection (2) … made it clear that an appeal from a judge sitting in court or in chambers shall lie to the Full Court. Thus, whatever the source of jurisdiction conferred on the judge, Parliament made it clear that there was to be an appeal to the Full Court which had jurisdiction to hear and determine the appeal. It is to be observed that the matters referred to in s 58(1) which may be the subject of appeal to the Full Court include both civil and criminal proceedings (11).
Kennedy J made this observation in Lim about the 1957 amending Act:
In consequence of the 1957 amendments, it appears to me to be clear that s 58 does confer jurisdiction upon the Full Court in the matters referred to therein … (23).
Preliminary issue: s 58(1)(a) of the Supreme Court Act 1935 (WA)
Section 58(1)(a) of the original 1935 Act, as amended by the 1957 amending Act, conferred a right to apply to the Full Court for 'a new trial or re‑hearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found given or made in any cause or matter tried or heard by a Judge or before a Judge and jury'.
Before the commencement of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), the terms 'action' and 'cause' were defined in s 4(1) of the Supreme Court Act 1935 (WA), as follows:
'Action' means a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court, but does not include any criminal proceeding by the Crown; (emphasis added)
'Cause' includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding by the Crown. (emphasis added)
By s 130(2) of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), the definitions of 'action' and 'cause' were amended by deleting 'by the Crown'.
When these amendments are considered in the context of other amendments made by the Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), it is readily apparent that the amendments were made to remove nomenclature relating to the Crown or the monarch from legislation affecting the courts. For example, as a result of the amendments, indictments have been proceeded upon in the name of the State rather than the Queen. It is plain that the deletion of the words 'by the Crown' in the definitions of 'action' and 'cause' in s 4(1) of the Supreme Court Act 1935 (WA) was not intended to modify the substance of the jurisdiction embodied within the phrase 'any criminal proceeding by the Crown'.
Since the Supreme Court Act 1935 (WA) was enacted, the term 'Matter' has been defined in s 4(1) of that Act to include 'every proceeding in the Court, not in a cause', the term 'Court' has been defined to mean 'the Supreme Court of Western Australia', and the term 'Suit' has been defined to include 'action'.
Preliminary issue: s 58(1)(b) of the Supreme Court Act 1935 (WA)
Section 58(1)(b) of the original 1935 Act, as amended by the 1957 amending Act, conferred a right of appeal to the Full Court 'from a Judge whether sitting in court or in chambers'.
Section 5 of the Interpretation Act 1984 (WA) provides that in that Act, and every other 'written law', the term 'judge' means a judge, acting judge or auxiliary judge of the Supreme Court. The term 'written law' is defined in s 5 of the Interpretation Act to mean 'all Acts for the time being in force and all subsidiary legislation for the time being in force'.
The Full Court held in Lim that s 58(1)(b) of the original 1935 Act, as amended by the 1957 amending Act, conferred a right of appeal to the Full Court from a decision of a Supreme Court judge refusing bail. See the reasons of Malcolm CJ (11), Kennedy J (23) and Rowland J (34).
In Connell v The Queen (No 5) (1993) 10 WAR 424, the appellant sought leave to appeal from a decision of a Supreme Court judge dismissing the appellant's application for a permanent stay of a criminal trial on indictment, alternatively for an adjournment of the trial. The Crown contended that no appeal lay from the decision. The Full Court held that the appeal was incompetent.
Malcolm CJ (Franklyn J agreeing) said in Connell (No 5) that the criminal proceedings against the appellant were governed by the Criminal Code and that the Criminal Code conferred no right of appeal against the dismissal of an application for a permanent stay of a criminal trial on indictment, alternatively for an adjournment of the trial (431). His Honour added:
Putting on one side questions of leave, the only rights of appeal to the Full Court (sitting as the Court of Criminal Appeal) under Ch 69 of the Criminal Code are given to a person who has been convicted on indictment against his conviction or against his sentence, to the prosecution in the circumstances set out in s 688(2) and to a person charged on indictment who has been acquitted on account of unsoundness of mind (431).
Malcolm CJ accepted the Crown's submissions that:
(a)there was no right of appeal from any decision made in the course of criminal proceedings brought by the Crown on indictment, other than the statutory rights of appeal conferred by ch 69 of the Criminal Code; and
(b)although the language of s 58(1)(b) of the Supreme Court Act 1935 (WA) was, on the face of it, broad enough to confer a wider right of appeal in such proceedings, Parliament would not have intended that there should be a general right of appeal to the Full Court, including a right of appeal from interlocutory orders made in the course of a criminal trial, other than those specifically provided for in the Criminal Code (431).
After a lengthy historical analysis of the legislation in Western Australia concerning appeals against decisions in criminal proceedings on indictment, Malcolm CJ referred in Connell (No 5) to the following observation he had made in Lim (439):
There never has been in this State any limitation on the right of appeal to the Full Court in criminal matters, of the kind enacted in England or in Victoria. In this respect the position in Western Australia under s 58(1)(b) of the Supreme Court Act is similar to that under s 10 of the Judicature Act 1876 (Qld) referred to in R v Malone [1903] QSR 140 (11).
His Honour then acknowledged that his observation in Lim was erroneous:
At that time, my research into the matter had not uncovered s 3 of the Criminal Law Appeal Act. In my opinion, however, the effect of the repeal of that Act by s 3 of the Supreme Court Act is that since 1935 the statutory provisions had to be construed in the context of a legal framework which did not include any general exclusion of any right of appeal 'in any criminal cause or matter' (439).
Malcolm CJ added that the existence of s 3 of the Criminal Law Appeal Act between 1893 and 1935 had no effect on the conclusion in Lim that there was a right of appeal in that case under s 58(1)(b) of the Supreme Court Act1935 (WA) (439).
A little later, however, in Connell (No 5) his Honour said that, on the assumption that the conclusions of Kennedy J and himself in Lim 'on the appeal point' were correct, it did not follow that there was a general right of appeal under s 58(1)(b) of the Supreme Court Act 1935 (WA) 'in respect of the residue of decisions or orders made in relation to criminal proceedings not covered by the specific appeal provisions in the Criminal Code' (440). His Honour elaborated:
In my opinion, given that the appeal provisions in the Criminal Code were enacted to provide a similar regime of appeals in Western Australia to that introduced in England in 1907, against a background where there was otherwise no relevant right of appeal and an express exclusion of any such right by statute, the appeal provisions in the code should themselves be regarded as a code of appellate rights in relation to criminal proceedings governed by the Criminal Code (440). (emphasis added)
In Carter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993), the Full Court considered whether there was a right of appeal to the Full Court from:
(a)an order upholding the respondents' objections to producing documents in response to service on them of a subpoena duces tecum on the ground of legal professional privilege; or
(b)an order setting aside such a subpoena on the ground of oppression.
It was unnecessary for the Full Court to decide any of these issues.
In Carter v The Managing Partner, Mallesons Stephen Jaques (Unreported, WASC, Library No 930374, 15 July 1993), the Full Court dismissed as incompetent an appeal against an order for costs against an accused in favour of the person served with the subpoena in the previous case.
In Connell (No 5), Malcolm CJ referred to the Carter cases, and said:
Assuming, without deciding, that there is such a right, it would be found to have been created in s 58(1) of the Supreme Court Act. The recognition of such a right would not involve recognition of any right of appeal, as asserted by the appellant in this case, in relation to the residue of orders and decisions in criminal proceedings not covered by the rights of appeal in the Criminal Code. A writ of subpoena is an originating process by which proceedings to compel the attendance of a witness to testify or to produce documents may be commenced, albeit the proceedings may be regarded as ancillary proceedings and involving a step in the principal proceedings. They are not themselves criminal proceedings by the Crown which are governed by the Criminal Code. Neither the Criminal Code or [sic] the Criminal Practice Rules have anything to say about proceedings commenced by the issue of a writ of subpoena. Such proceedings fall within the description of a 'criminal cause or matter' in s 37(2) of the Supreme Court Act because they take their character from the underlying criminal proceedings by the Crown (442). (emphasis added).
In my opinion, the critical point decided in Connell (No 5), for present purposes, was that the rights of appeal conferred by the Criminal Code exhaustively stated the rights of appeal available in respect of decisions in criminal proceedings on indictment.
The rights of appeal now available in respect of decisions in criminal proceedings on indictment are embodied in pt 3 of the Criminal Appeals Act.
The decision in Lim that there was a right of appeal under s 58(1)(b) of the Supreme Court Act1935 (WA) from a decision of a Supreme Court judge refusing bail, was published after the Bail Act 1982 (WA) was passed but before it was proclaimed to come into operation.
In Jemielita v The Queen (1994) 12 WAR 362, the Full Court (Pidgeon J, Owen & White JJ agreeing) held that 'the ratio of Lim v Gregson so far as it relates to a right of appeal [from a decision of a Supreme Court judge refusing bail] remains applicable' (364).
In Tieleman v The Queen [2004] WASCA 285, Murray J (Templeman J agreeing) said, in the context of appeals against a decision of a Supreme Court judge refusing bail:
The appeals against the decisions made by Roberts-Smith J were undoubtedly competent: Jemielita v The Queen (1994) 12 WAR 362, applying Lim v Gregson [1989] WAR 1. The oddity, of course, is that although the question of the grant or refusal of bail arises squarely in the exercise of the Court's criminal jurisdiction, an appeal against such a decision is made under the Supreme Court Act 1935 (WA), s 58(1)(b), to the Full Court [6].
I note, for completeness, that the Bail Act was amended by the Bail Amendment Act 2008 (WA). Relevantly, the amending Act inserted s 15A and s 15B, which expressly provide for a right of appeal in relation to a 'bail decision', as defined in s 15A(1). Also, the amending Act inserted a new s 58(1a) into the Supreme Court Act1935 (WA) to provide that an appeal does not lie to the Court of Appeal under s 58(1)(b) against a bail decision.
Preliminary issue: the Rules of the Supreme Court of Western Australia
The Rules of the Supreme Court 1971 (WA) replaced the Rules of the Supreme Court 1909 (WA).
The 1909 Rules did not contain any provisions relating to committal for contempt of court. Order 42 was headed, 'Attachment'. It merely provided that a writ of attachment had the same effect as a writ of attachment issued in Equity had previously had, and that no writ of attachment could be issued without the leave of the court or a judge, to be applied for on notice to the party against whom the attachment was to be issued.
The 1971 Rules introduced a new Order, being O 55, to codify the practice that had been established in relation to the punishment of contempt of court. See the introduction to the original 1971 Rules, published in Western Australia, Government Gazette, No 98 (18 November 1971) xviii.
Order 55 of the 1971 Rules, in its original form, provided, relevantly:
…
2.(1) Subject to the Act the power of the Court or Full Court to punish for contempt of Court may be exercised by an order of committal.
(2)Subject to paragraph (3) an order of committal may be made only by the Full Court.
(3)Where contempt of court is committed in the face of the Court or in the hearing of the Court, or consists of disobedience to a judgment or order of the Court or a breach of an undertaking to the Court, an order of committal may be made by a single Judge.
3.(1) When it is alleged or appears to the Court on its own view that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the presiding Judge may, by oral order, direct that the contemnor be arrested and brought before the Court as soon thereafter as the business of the Court permits, or may issue a warrant under his hand for the arrest of the contemnor.
…
(4)The powers given by this Rule are exercisable, mutatis mutandis, by a Judge sitting in chambers except that the contemnor must be brought before the Court sitting in court, and the Court shall hear and determine the charge and make the order.
4.(1) In a case to which the last preceding Rule does not apply, and subject to paragraph (2), application for punishment for contempt of court must be made by motion on notice to the contemnor, for an order that he be committed to prison for his contempt.
(2)Applications for committal for contempt of court consisting of disobedience to judgments or orders of the Court made by a Judge, or orders of the Court made by the Master, may be made by summons to a Judge in chambers.
5.(1) The notice of motion or summons (as the case may be) must specify the contempt of which the contemnor is alleged to be guilty, and be entitled in the proceeding, if any, with reference to which the contempt is alleged to have been committed or if it is not alleged to have been committed with reference to a particular proceeding, shall be entitled 'The Queen against' the contemnor (naming him) ex parte the applicant.
(2)Unless the Court otherwise orders, the notice of motion or summons accompanied by a copy of the affidavit in support of the application must be served personally on the contemnor.
…
Part 4 of the CCC Act is headed, 'Organised crime: exceptional powers and fortification removal'. It comprises s 45 ‑ s 83. Part 4 was enacted to provide the Commission with exceptional powers to be used in the investigation of organised crime.
Divisions 2 to 5 of pt 4 comprise s 48 ‑ s 66. By s 47(1), the purpose of div 2 ‑ div 5 is to facilitate the investigation of a 'section 5 offence'. Section 5 defines 'section 5 offence' to mean, in essence, an offence described in sch 1 committed in the course of organised crime. By s 47(3), div 2 ‑ div 5 apply only if the Commission has made an 'exceptional powers finding' in respect of the s 5 offence concerned in accordance with s 46.
Martin CJ held that the punishment to be imposed on each of the appellants 'must be significant enough to discourage prospective witnesses from making a calculated choice to suffer a penalty rather than give evidence, and thereby frustrate the achievement of the important policy objectives' embodied in those provisions of the CCC Act which are concerned with the investigation of organised crime [31].
Each appellant's ground of appeal alleging manifest excess: the facts and circumstances of the contempts
As I have mentioned, the contempts were committed in the course of the Commission's exercise of its power to facilitate the investigation of organised crime. The Commission was conducting an inquiry into a brawl which occurred on 3 October 2010 between members of two motorcycle gangs during a public sporting event at Kwinana. Two of the appellants, Mr Silvestro and Mr Smith, were seriously injured in the brawl. The Commission found that there were reasonable grounds for suspecting that two or more serious offences were committed in the course of organised crime, namely, the serious assaults upon Mr Silvestro and Mr Smith. The other two appellants, Mr Allbeury and Mr Chikonga, are members of the same motorcycle gang as Mr Silvestro and Mr Smith. All of the appellants persistently refused to provide information which could assist in charging and convicting the persons who committed the serious offences in question in the course of organised crime.
Martin CJ made findings in relation to each of the factors identified by Dunford J in Wood [No 5]. I note the following:
(a)Each of the contempts was extremely serious. The appellants persistently defied the authority of the Commission in the performance of its function of facilitating the investigation of organised crime [37].
(b)The Commissioner warned each of the appellants, on a number of occasions, of the likely consequences of his persistent refusal to comply with his obligations under the CCC Act. Each appellant was aware of the consequences to himself of his conduct and admitted as much through his counsel. Further, Martin CJ warned each of the appellants that if he failed to take advantage of opportunities provided to purge his contempt, then that would be a factor affecting the punishment to be imposed [39].
(c)The contempts impeded and delayed the Commission's conduct of its investigation [40].
(d)Each contempt was committed in the context of an investigation of serious crimes committed in the course of organised crime [41]. Martin CJ was unable to pass sentence on the basis that the reason for the contempts was the appellants' fear of retribution. There was no evidence, either from the appellants or otherwise, to support a finding of the existence of a fear of retribution or that any such fear was well‑founded [42] ‑ [43]. In any event, his Honour found that the achievement of the public policy objective which underpins the conferral on the Commission of its exceptional powers would be impeded if significant mitigating weight were to be given to an assertion of a fear of retribution as a reason for refusing to provide information [43].
(e)There was no evidence as to whether any of the appellants had received a benefit by refusing to give evidence [44].
(f)None of the appellants had apologised or publicly expressed any contrition for the commission of his contempt [45]. Mr Chikonga did, however, plead guilty when he appeared before Martin CJ on 21 January 2011. His Honour dealt elsewhere in his reasons with the significance of that plea upon the sentence to be imposed on him.
(g)Martin CJ dealt separately in his reasons with the character and antecedents of each appellant.
(h)Martin CJ said that general deterrence was the most significant factor to be taken into account when passing sentence for these contempts [47].
(i)It was appropriate publicly to denounce the seriousness of the appellants' contempts because of their wilful and persistent denial of the Commission's authority [48].
Each appellant's ground of appeal alleging manifest excess: the trial of each appellant except Mr Chikonga
As I have mentioned, each of the appellants, except Mr Chikonga, was convicted after a trial. Mr Chikonga pleaded guilty. It was submitted on behalf of each of the appellants who went to trial that he had facilitated the course of justice by not challenging the factual basis of the Commission's case. However, this submission must be evaluated in the context of the nature of the case and the supporting evidence advanced by the Commission.
The Commission relied principally upon the certificate of the Commissioner (see s 163(1) and s 163(2) of the CCC Act) and a DVD of each appellant's examination before the Commission. Factually, there was little or nothing for each appellant to challenge.
Although the appellants who went to trial did not challenge the factual basis of the Commission's case, they did not make any admissions in relation to that case. It remained necessary for the Commission to prove its case.
Each appellant's ground of appeal alleging manifest excess: the standards of sentencing customarily observed with respect to the offence
As Martin CJ noted in his reasons, the circumstances giving rise to the offence of criminal contempt are many and varied. There is a wide breadth of sentencing discretion because it is necessary to deal with the wide breadth of facts and circumstances which might give rise to a conviction for the offence [34].
Counsel for the appellants and counsel for the Commission referred to numerous cases. All of them (except Kennedy) were decided in other States, mainly New South Wales. Counsel for the appellants relied, in particular, on R v Herring (Unreported, NSWSC, No 70140 of 1990, 3 October 1991) (Slattery AJ); Wood [No 5]; Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846; Kennedy; R v Abell [2007] QCA 448; R v Drever [2010] SASCFC 27.
In Herring, the defendant was convicted of contempt in the face of the Supreme Court, committed in the course of a criminal trial in which he was the accused. He escaped from the dock, climbed onto the bench and threatened the presiding Judge. The defendant's intention was to attack the judge. However, his progress was impeded and, before he could commence the attack, the judge was able to avoid the defendant. The defendant was forcibly restrained and taken back into custody. Counsel were present and the jury was about to enter the courtroom when the contempt occurred. The defendant was sentenced to 2 years' imprisonment.
In Wood [No 5], the defendant was convicted on two counts of contempt of the Royal Commission. The contempts were committed on different dates. On each count, the defendant was initially committed to prison until further order, with liberty to apply. Eventually, the defendant purged his contempt and answered questions before the Royal Commission. The matter then came before Dunford J for the purpose of fixing a determinant sentence for each contempt. His Honour imposed a sentenced of 11 months' imprisonment for the first contempt and 8 months' imprisonment for the second. Each sentence was back‑dated to the date on which the defendant was taken into custody for the relevant contempt.
In Glasby, the defendant was convicted of contempt of court for refusing to answer a number of questions directed to her as a witness in a murder trial. Adams J found that the defendant intended to interfere with the administration of justice. She undoubtedly knew facts about the murder and the implication of the accused (her husband) which were of great importance in the trial. However, disclosure of this material was not vital to the prosecution case because the accused was convicted on other, largely circumstantial, evidence. The defendant evinced no contrition. She was 'very much under the influence of her husband who … was "a brutal and vicious man"'. To some extent, she was motivated by a sense of misplaced loyalty to her husband together with a foolish bravado. There was some prospect of future rehabilitation. The defendant had a history of illicit drug and alcohol abuse and had made two previous attempts at suicide. The judge sentenced the defendant to 6 years' imprisonment.
In Kennedy, the respondent was convicted of three counts of contempt of the Royal Commission. The first was that, without reasonable excuse, he failed to attend the Commission as required by a summons served on him. The second was that, having attended and reported to the Commission on a later date, he refused to be sworn or make an affirmation. The third was that, after attending and reporting to the Commission on that later date, he left the Commission and failed to attend thereafter without having been released from attendance. Each contempt involved a contravention of a provision of the Royal Commissions Act 1968 (WA). The application to punish the respondent for contempt was made returnable before the Full Court. The matter did not come before the Full Court as an appeal.
The Full Court in Kennedy reviewed the facts and circumstances relevant to the offending and the respondent by reference to all of the factors identified in Wood [No 5]. Malcolm CJ said:
After taking into account all of the matters to which I have referred and [the respondent's] undertaking to the Royal Commissioner and to this Court to comply with the requirements of the Royal Commissioner regarding his attendance, his obligation to answer questions relevant to the inquiry and the lawful direction of the Royal Commissioner in the future, I have concluded, after some anxious consideration, that [the respondent] should be fined rather than imprisoned [40].
The court imposed a fine of $10,000 for each contempt, being a total of $30,000.
In Abell, the appellant was convicted, after a trial, of one count of refusing to answer a question at an Australian Crime Commission examination, contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth). By s 30(6) of that Act, the maximum available penalty was a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. The appellant was sentenced to 12 months' imprisonment with an order directing his release after serving 4 months upon him giving security by recognisance in the sum of $2,000 on condition that he be of good behaviour for a period of 3 years. The Court of Appeal of Queensland dismissed his appeal against sentence. McMurdo P (Holmes & Muir JJA agreeing) said:
In passing sentence the judge observed that [the appellant] had shown no remorse and that he was not entitled to any credit for cooperation with the authorities. In the circumstances, a sentence of imprisonment was the only appropriate sentence. [The appellant's] refusal to answer questions obstructed proper enquiry into the drug trade. A deterrent penalty had to be imposed.
The judge rightly noted that [the appellant] was not cooperative with the administration of justice and had shown no remorse. He was, both at sentence and when he offended, a mature man. He had a significant criminal history. There was no evidence placed before the court to suggest that he had promising rehabilitative prospects [32] ‑ [33].
In Drever, the appellant pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination, contrary to s 30(2) of the Australian Crime Commission Act. At the examination, the appellant answered many questions, but refused to answer three questions relating to his involvement in the manufacture of methylamphetamine as part of an ongoing business of making and selling the drug. The maximum penalty for the offence was 5 years' imprisonment or a fine of 200 penalty units. The appellant was sentenced to 12 months' imprisonment, to be released after serving 6 months upon entry into a recognisance in the sum of $1,000 to be of good behaviour for 2 years. A reduction of 20% had been made to recognise the appellant's plea of guilty. The sentence of 12 months' imprisonment was ordered to commence at the expiration of an existing State non‑parole period of 2 years 8 months which the appellant was then serving. The Full Court of the Supreme Court of South Australia dismissed the appellant's appeal against sentence. It held that the sentence imposed was an appropriate exercise of the sentencing discretion.
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Allbeury
Mr Allbeury attended the Commission in answer to a summons. He was sworn to give evidence. However, he persistently refused to answer any question of substance. Also, in refusing to answer 18 separate questions from the Commissioner and counsel assisting the Commission, especially those from the Commissioner, Mr Allbeury answered by telling the Commissioner to 'fuck off' or 'get fucked' [51]. Unlike the other appellants, Mr Allbeury was convicted of two offences of contempt.
When sentenced, Mr Allbeury was aged 29 years. He has an extensive criminal record and has been sentenced to significant terms of imprisonment on numerous occasions and for a variety of serious offences. Although his prior criminal record does not aggravate his contempts, he is unable to rely on any mitigation arising from prior good behaviour.
Medical reports before Martin CJ indicated that Mr Allbeury suffers from a number of medical conditions, including bipolar disorder. As a result of these conditions, his behaviour is erratic and, on occasions, aggressive, violent and antisocial. His Honour found, however:
While these conditions might go some way to explaining Mr Allbeury's offending, in my view, they do not justify or mitigate the seriousness of his quite deliberate behaviour in any way. It is clear from the DVD which I have viewed, that Mr Allbeury was in complete control of his senses and faculties at the time he committed the offences, and was well aware of what he was doing and of the likely consequences [56].
Martin CJ concluded that none of the matters personal to Mr Allbeury mitigated the punishment otherwise appropriate for his offending [57].
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Silvestro
Mr Silvestro attended the Commission in answer to a summons, but he refused to be sworn or to take an affirmation for the purpose of giving evidence. He was therefore not asked any questions in the course of the Commission's investigation.
When sentenced, Mr Silvestro was aged 42 years. He has an extensive criminal record, although his last conviction was in 1994. In 1994 Mr Silvestro was convicted of attempting to defeat or pervert the course of justice, for which he was sentenced to 2 years' imprisonment.
Martin CJ found that none of the matters personal to Mr Silvestro mitigated the punishment otherwise appropriate for his offending [62].
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Smith
Mr Smith attended the Commission in answer to a summons, but he refused to be sworn or to take an affirmation for the purpose of giving evidence. He was therefore not asked any questions in the course of the Commission's investigation.
When sentenced, Mr Smith was aged 37 years. He has an extensive criminal record, although he has not previously been sentenced to a term of imprisonment. A number of his prior convictions are for drug offences.
Martin CJ found that there was nothing in the character or personal antecedents of Mr Smith which would mitigate the punishment otherwise appropriate for his contempt [65].
Each appellant's ground of appeal alleging manifest excess: the personal circumstances of Mr Chikonga
Mr Chikonga attended the Commission in answer to a summons, but he remained mute. He failed to respond to any and all requests that he be sworn or make an affirmation. He was therefore not asked any questions in the course of the Commission's investigation.
When sentenced, Mr Chikonga was aged 24 years. Despite his relative youth, he has an extensive criminal record. Notably, he has a number of convictions for serious offences for which he has been sentenced to terms of imprisonment. Mr Chikonga had a 'troubled upbringing'. However, Martin CJ said it was 'far from exceptional' and did not justify his behaviour.
Martin CJ found that there was nothing in the character or personal antecedents of Mr Chikonga which would mitigate the punishment otherwise appropriate for his contempt [71].
However, unlike the other appellants, Mr Chikonga pleaded guilty. It was therefore necessary for Martin CJ to assess whether the punishment to be imposed on him should be mitigated as a result of that plea.
Each appellant's ground of appeal alleging manifest excess: its merits
It is apparent from my review of the cases principally relied upon by counsel for the appellants that the great variation that is possible in the facts and circumstances of offences of criminal contempt and of contemnors precludes the establishment of a tariff or a sentencing range. In addition, some contempts are common law offences without a maximum penalty (as in the present case) whereas other contempts are statutory offences with a maximum penalty. The punishment to be imposed in a particular case must be appropriate to the facts and circumstances of the particular offence and the particular contemnor.
At common law, a sentence must be proportional to the offence. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 486 (Wilson J), 490 ‑ 491 (Deane J).
The contempt or contempts committed by each of the appellants was extremely serious. Each appellant evinced an intentional defiance of the Commission's authority, purpose and functions. Each contempt was contumacious.
Before Martin CJ imposed sentence, each appellant was given ample opportunity to purge his contempt by giving evidence on oath or affirmation at the examination being conducted by the Commission. Each appellant had access to legal advice. At all material times, the appellants were represented by the same senior counsel and solicitor. None of the appellants purged his contempt despite an appreciation of the consequences of failing to purge. Each appellant, through his counsel, clearly and unequivocally indicated to his Honour that he had no present intention of purging his contempt in the future by cooperating with the Commission [14], [21].
Martin CJ comprehensively examined the relevant facts and circumstances and, in my respectful opinion, correctly applied those facts and circumstances to the factors identified by Dunford J in Wood [No 5].
A matter to be taken into account in evaluating whether any of the sentences in question was manifestly excessive is the right of each appellant to make an application to the court under O 55 r 9 of the Rules of the Supreme Court 1971 for discharge, notwithstanding that the term for which he has been committed to prison has not expired. Order 55 r 9 provides:
(1)The Court may, on application of any person committed to prison for contempt of court, discharge him, notwithstanding that the term for which he may have been ordered to be committed has not expired.
(2)An application for the discharge of a person committed to prison for contempt, and any order made thereon, shall be served on the sheriff by the person making the application.
The principal sentencing factors in the present case were appropriate punishment, general and personal deterrence, and public denunciation of the conduct of each of the appellants.
In my opinion, the sentence imposed on each of Mr Allbeury, Mr Silvestro and Mr Smith bears a proper relationship to the criminality of his offending, after having regard to all relevant circumstances including Martin CJ's unchallenged findings of fact and the personal antecedents of each of Mr Allbeury, Mr Silvestro and Mr Smith. The sentencing outcome was not plainly unreasonable or unjust, and there is no basis for inferring error.
Similarly, but subject to my consideration of the merits of Mr Chikonga's additional ground of appeal, in my opinion Mr Chikonga's sentence bears a proper relationship to the criminality of his offending, after having regard to all relevant circumstances including Martin CJ's unchallenged findings of fact and Mr Chikonga's personal antecedents. Subject to my consideration of his additional ground, the sentencing outcome was not plainly unreasonable or unjust, and there is no basis for inferring error.
Each ground of appeal alleging manifest excess fails.
Mr Chikonga's ground of appeal concerning his plea of guilty
Mr Chikonga, in addition to alleging that the sentence imposed on him was manifestly excessive, alleges that Martin CJ 'erred in law by failing to give [Mr Chikonga] any credit for his plea of guilty and thereby failed to reduce the sentence imposed'.
Martin CJ set out in his reasons his understanding of the facts and circumstances in which Mr Chikonga's plea of guilty was entered. His Honour said:
Mr Chikonga failed to attend court upon the first return of the summons which had been served upon him. As a result, I issued a warrant for his arrest, and adjourned the summons to be tried on 13 December 2010. The warrant was not executed prior to that date, and Mr Chikonga failed to appear at the time his trial was listed for hearing. As a result, I further adjourned his trial indefinitely, and the warrant for his arrest remained in force. The trial of the other contemnors proceeded on 13 December 2010. The evidence for the Commission took the form of certificates and affidavits which had previously been served. That evidence established conclusively what had occurred when the contemnors appeared before the Commission. None of the contemnors gave evidence. Their defence consisted entirely of legal submissions, which I rejected in reasons which I delivered that day.
Mr Chikonga was arrested and taken into custody following his involvement in the motor vehicle accident to which I have referred on 15 December 2010. It is reasonable to infer that, but for his involvement in that accident, he would have continued to endeavour to evade apprehension and arrest.
Following his arrest, Mr Chikonga was brought before the court. He was remanded in custody to appear before the court on 21 January 2011, when his case was listed for trial. Some days prior to the date listed for trial, the court was notified that Mr Chikonga intended to plead guilty [72] ‑ [74].
Martin CJ said that Mr Chikonga's failure to appear to answer the charge of contempt gave him the benefit of knowing, before his case was tried, the outcome of the legal submissions advanced unsuccessfully on behalf of the other appellants [75]. His Honour concluded that, when Mr Chikonga entered his plea of guilty, he must have been aware, 'and would presumably have been advised', that:
(a)his conduct said to constitute contempt of the Commission would be established unequivocally by the evidence which would be tendered to the court;
(b)in those circumstances, no point or purpose would be served by him giving evidence;
(c)all the legal arguments which had been advanced on behalf of the other contemnors in opposition to their conviction had failed [75].
Martin CJ made these findings:
(a)Mr Chikonga's plea of guilty was nothing more than a recognition of the inevitable outcome of his trial;
(b)if Mr Chikonga had not pleaded guilty, his trial would have been perfunctory and would have occupied no more than a few minutes; and
(c)in these circumstances, the plea of guilty produced no significant saving of time or cost for either the Commission or the court, and did not alleviate any inconvenience to witnesses, as none would have been called [76].
His Honour also noted Mr Chikonga's continuing attitude of defiance and the absence of any remorse or contrition:
Like the other contemnors, Mr Chikonga has maintained his refusal to cooperate with the Commission, and indicated that he does not intend to change his position. In these circumstances, it is impossible to draw any inference of remorse or contrition from the entry of his plea of guilt, nor was there any identifiable saving of time, cost or convenience to anyone as a result of that plea. In those circumstances, it would seem to me to be quite inappropriate to give Mr Chikonga any discount of sentence, as compared to the other contemnors, particularly given that the only reason he is in any different position from them is the result of his failure to present himself to the court in answer to the summons served upon him [77].
Martin CJ concluded that in 'the unusual circumstances of Mr Chikonga's case', there was no reason in principle why he should receive a discount as a result of his plea of guilty [85]. His Honour said that he was not 'legally obliged to apply such a discount' [85], and then elaborated:
Accordingly, in the exercise of my discretion as to sentence, I do not propose to discount the sentence imposed upon Mr Chikonga as a consequence of his plea of guilt. Such a discount would appear to me to be quite anomalous, when compared to the sentence which I propose to impose upon those who voluntarily presented themselves to the court in answer to the summons served upon them, unlike Mr Chikonga [85].
Mr Chikonga's ground of appeal concerning his plea of guilty: Martin CJ's error of fact
Martin CJ's reasons reveal an error of fact in relation to the service on Mr Chikonga of the summons requiring him to appear in the Supreme Court.
His Honour's error is contained in the following passage:
Mr Chikonga did not attend court on 25 November 2010, despite having been served with a summons requiring his attendance on that date. As a result of his failure to appear, I issued a warrant for his arrest, and adjourned his case until 13 December 2010. The warrant was not executed before that date, and Mr Chikonga failed to appear. I adjourned his trial, and maintained the warrant for his arrest, which was executed on 15 December 2010, when he came to attention because of his involvement in a serious motor vehicle accident. He has been in custody since then. On 21 January 2011, he pleaded guilty to the charge brought against him, and was convicted on that plea [4]. (emphasis added).
His Honour repeated the substance of these observations later in his reasons [72] ‑ [74].
The relevant error of fact is Martin CJ's statement that Mr Chikonga had been served with a summons requiring his attendance at the Supreme Court on 25 November 2010. Mr Chikonga was not in fact served with a summons before 25 November 2010. At the hearing of these appeals, counsel for the Commission properly conceded the existence of the error (appeal ts 23 ‑ 24, 48).
The question for this court is whether the error of fact is material. In particular, whether this court is of the opinion that, notwithstanding the error, no different sentence should have been imposed.
Mr Chikonga's ground of appeal concerning his plea of guilty: its merits
In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ referred to the common law rule that a person should not be penalised for exercising the right to trial [18]. A little later, their Honours explained the rationale for the rule that a plea of guilty may be taken into account in mitigation. They said:
[T]he issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].
In Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80, McLure P (Martin CJ & Mazza J agreeing) referred to Cameron and then said:
The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice [41]. (emphasis added)
In the present case, Martin CJ was entitled, in the exercise of his discretion and generally for the reasons he gave, not to reduce the sentence imposed on Mr Chikonga on account of his plea of guilty.
There was no basis in the material before his Honour for any inference that the plea indicated, to any extent, remorse or an acceptance of responsibility or a willingness to facilitate the course of justice.
Indeed, to the contrary, there was evidence of a continuing refusal by Mr Chikonga (and the other appellants) to facilitate the course of justice. There was a complete and ongoing absence of cooperation with the Commission's investigative process. In all the circumstances, Mr Chikonga was continuing to defy (rather than facilitate) the course of justice.
On the basis of Martin CJ's unchallenged findings of fact, the only inference reasonably open is that Mr Chikonga (and the other appellants) did not have any remorse or accept any responsibility for their contemptuous behaviour.
The utilitarian value of Mr Chikonga's plea was, for the reasons his Honour gave, insignificant.
Mr Chikonga's plea was merely a recognition of the inevitable. See R v Shannon (1979) 21 SASR 442, 453 (King CJ).
In my opinion, Martin CJ's error of fact is, in all the circumstances, unimportant in the context of the sentencing outcome. After evaluating and weighing all relevant sentencing factors, I am satisfied that, notwithstanding the error, no different sentence should have been imposed.
There is no merit in Mr Chikonga's ground of appeal alleging that Martin CJ erred in law by failing to give Mr Chikonga any credit for his plea of guilty.
Conclusion
I would dismiss each of the appeals.
MAZZA JA: I agree with McLure P and Buss JA that the appeals are competent. I also agree with their Honours that the source of this court's jurisdiction to determine the appeals is s 58(1)(b) of the Supreme Court Act 1935 (WA) (the Act). On this issue, I respectfully agree with the reasons of McLure P. It is therefore unnecessary to decide the scope and effect of s 58(1)(a) of the Act, and I prefer not to do so, given the absence, in this case, of full argument from the parties as to the scope and purpose of this subsection.
As to the merits of the appeals, for the reasons given by Buss JA, each must be dismissed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (S)
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 13 OCTOBER 2011 & ON THE PAPERS
DELIVERED : 13 APRIL 2012
SUPPLEMENTARY
DECISION :25 MAY 2012
FILE NO/S: CACV 19 of 2011
BETWEEN: TRISTAN ROGER ALLBEURY
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 20 of 2011
BETWEEN :CLOVIS MURHABAZI CHIKONGA
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 21 of 2011
BETWEEN :STEPHEN LAURENCE SILVESTRO
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
FILE NO/S :CACV 22 of 2011
BETWEEN :TROY CRISPIN SMITH
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTIN CJ
Citation :CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26
File No :CIV 2870 of 2010, CIV 2871 of 2010, CIV 2872 of 2010, CIV 2875 of 2010
Catchwords:
Practice and procedure - Costs - Appellants successful on preliminary issue - Respondent successful on the substantive appeals - Each party to bear his or its own costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), s 5(1)
Supreme Court Act 1935 (WA), s 37(1)
Result:
Each party to bear his or its own costs of the appeals
Category: B
Representation:
CACV 19 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
CACV 20 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: A Padmanabham
Respondent: Corruption and Crime Commission of Western Australia
CACV 21 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
CACV 22 of 2011
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D W L Renton & Ms T M Chung
Solicitors:
Appellant: S C Nigam & Co
Respondent: Corruption and Crime Commission of Western Australia
Case(s) referred to in judgment(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162 (S)
Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Keet v Ward [2011] WASCA 139
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Shire of Manjimup v Cheetham [2010] WASCA 225 (S)
McLURE P: I agree with Buss JA.
BUSS JA: On 13 April 2012, this court dismissed the appeals and published its reasons for decision in Allbeury v Corruption and Crime Commission [2012] WASCA 84.
At the hearing of the appeals, the respondent (the Commission) raised a preliminary issue as to this court's jurisdiction to entertain the appeals. It was submitted on behalf of the Commission that there was no right of appeal from a decision of a Supreme Court judge that an alleged contemnor is guilty of contempt or from the sentence imposed in respect of the contempt. The court rejected this submission. It decided that it had jurisdiction to entertain the appeals.
When the court dismissed the appeals, and published its reasons for decision, it made orders for the filing and service of written submissions as to costs. The parties have filed and served these submissions. The appropriate orders as to costs are to be determined on the papers.
The appellants, having been successful on the preliminary issue but unsuccessful in the substantive appeals, sought an order that each party bear his or its own costs of the appeals. Alternatively, they sought orders that the Commission pay the appellants' costs relating to the preliminary issue and that the appellants pay those costs of the Commission that are solely referable to matters other than the preliminary issue.
The Commission, which was successful in the substantive appeals but unsuccessful on the preliminary issue, sought an order that the appellants pay the Commission's costs, the total costs be fixed in the sum of $25,652 and the total amount be 'evenly proportioned between the appellants'. Alternatively, the Commission sought an order that the appellants pay its costs to be taxed, if not agreed.
Each of the appellants was convicted by Martin CJ of criminal contempt. Proceedings for contempt are essentially criminal in nature. However, there are clear procedural differences between proceedings for contempt, on the one hand, and the trial of a criminal charge, on the other. The High Court has held that proceedings for contempt attract the rule as to costs that ordinarily applies in the civil jurisdiction, namely, that costs follow the event. See Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey & Gaudron JJ). See also Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 493.
The rules as to costs in this court's civil jurisdiction apply generally to the present appeals.
Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court 1971 (WA) (RSC).
Section 37(1) of the Supreme Court Act 1935 (WA) provides that the costs of and incidental to all proceedings in the Supreme Court are in the discretion of the court or judge.
By O 66 r 1(1) of the RSC, subject to the express provisions of any statute and of the rules of court, and without limiting the generality of the discretion to make a costs order, the court will generally order that the successful party to any action or matter recovers his costs. Various provisions of O 66 were discussed by this court in Keet v Ward [2011] WASCA 139 [17] ‑ [24] (Pullin, Buss & Newnes JJA).
Where there is a mixed outcome in an appeal, and the court decides that there should be an apportionment of costs based on the relative importance of the various claims in the appeal, the apportionment can only be carried out broadly, it involving primarily matters of impression and evaluation rather than precision. See Shire of Manjimup v Cheetham [2010] WASCA 225 (S) [7]; Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162 (S) [6].
In the present case, the preliminary issue raised a matter of general public importance. The matter was not straightforward. It involved questions of some difficulty and complexity.
By contrast, the issues in the substantive appeals were not of general public importance, and they were not attended by any difficulty or complexity.
The fact that these appeals were essentially criminal in nature is a relevant consideration in the exercise of the court's discretion as to costs. The partial success of each of the appellants and the Commission, and the importance, difficulty and complexity of the preliminary issue compared to the issues in the substantive appeals, are also relevant considerations in deciding upon the appropriate costs orders.
In the particular circumstances of this case, it would be just to make no order as to costs. Each of the parties should bear his or its own costs of the appeals.
MAZZA JA: I agree with Buss JA.
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