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
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- Case
- [2012] WASCA 84
- Decision Date
CaseChat Overview and Summary
The court found that it had jurisdiction to hear the appeals against the sentences, based on the provisions of the Corruption and Crime Commission Act 2003 (WA) and the Supreme Court Act 1935 (WA). The court then examined whether the sentences were manifestly excessive or whether there was a material error of fact by the sentencing judge. The court found that there was no material error of fact, and that the sentences were not manifestly excessive. The court also found that the sentencing judge had not erred in failing to reduce the sentence of one of the contemnors for his plea of guilty, as the judge had considered the plea of guilty and its impact on the sentence.
The court upheld the sentences imposed by the trial judge and dismissed the appeals. The court did not make any orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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).