Callanan v Witness M - [2017] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

Callanan v Witness M [2017] QSC 2

PARTIES:

JOHN DAVID CALLANAN as Presiding Officer of the Crime and Corruption Commission

(applicant)

v
WITNESS M

(respondent)

FILE NO/S:

SC No 3054 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 January 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2016; supplementary submissions of the applicant received 9 August 2016; supplementary submissions of the respondent received 22 August 2016

JUDGE:

Burns J

ORDER:

The order of the court is that the respondent be punished for contempt pursuant to s 199 of the Crime and Corruption Act 2001 (Qld)

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – whether the onus of proof of the existence of a “reasonable excuse” rested with the respondent – whether there was a “reasonable excuse” within the meaning of s 190 of the Act for the respondent’s refusal to answer questions

CONTEMPT – PARTICULAR CONTEMPTS – INTEREFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW – EXERCISE OF STATUTORY POWER TO OBTAIN INFORMATION – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – where the presiding officer decided that the respondent did not have a “reasonable excuse” within the meaning of s 190 of the Act and certified to the court in writing pursuant to s 198 of the Crime and Corruption Act 2001 (Qld) that he was satisfied that the respondent was in contempt – where an application was subsequently made to the court for an order that the respondent be punished for his alleged contempt – whether the respondent failed to answer a question put to him at the Commission hearing by the presiding officer without reasonable or lawful excuse – whether the respondent was in contempt of the presiding officer

Crime and Corruption Act 2001 (Qld), s 4, s 5, s 82, s 176, s 178, s 180, s 190, s 194, s 197, s 198, s 198A, s 199
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld)

Criminal Law (Criminal Organisations Disruption) and Other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QSC 2
Decision Date: 18 January 2017

CaseChat Overview and Summary

In the case of Callanan v Witness M, the respondent was required to give evidence before a Crime and Corruption Commission investigative hearing in Queensland. The respondent refused to answer questions and claimed a "reasonable excuse" under s 190 of the Crime and Corruption Act 2001 (Qld), citing potential endangerment to his and his family's safety if he answered questions about the subject matter of the investigation. The court had to decide whether the onus of proving a "reasonable excuse" rested with the respondent and whether there was a "reasonable excuse" within the meaning of s 190 of the Act for the respondent’s refusal to answer questions. Additionally, the court had to determine whether the respondent's refusal to answer questions constituted contempt of the presiding officer.

The court concluded that the onus of proving a "reasonable excuse" for refusing to answer questions rested with the respondent. It found that the respondent did not discharge this onus. The court emphasised that the respondent had not provided any evidence to substantiate his claims of potential harm to himself or his family if he answered the questions. The court noted that the respondent had not offered any details regarding the nature of the threats or the source of the information leading him to believe that his safety would be endangered. Furthermore, the court highlighted that the respondent had not provided any corroborating evidence or testimony from witnesses who could attest to the threats. Consequently, the court held that the respondent's assertions were speculative and unsubstantiated, and therefore, did not constitute a "reasonable excuse" under s 190 of the Act.

As a result, the court found that the respondent was in contempt of the presiding officer. It ordered that the respondent be punished for contempt pursuant to s 199 of the Crime and Corruption Act 2001 (Qld). The court's decision underscores the importance of providing concrete and substantiated evidence when claiming a "reasonable excuse" for not answering questions in an investigative hearing. The court's ruling also reinforces the principle that investigative hearings must proceed without undue interference to ensure the effective administration of justice.

Orders

Orders of the court

The order of the court is that the respondent be punished for contempt pursuant to s 199 of the Crime and Corruption Act 2001 (Qld)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The central issue for determination on this inquiry was whether the respondent had a reasonable excuse within the meaning of s 190(1) of the Act for refusing to answer the presiding officer’s question. It is that issue to which these reasons are devoted.The evidence On 26 June 2015, the Commission commenced an investigation into organised crime involving three named individuals and their associates pursuant to a general referral to investigate organised crime. The scope of the investigation was specified to be in relation to three different types of conduct suspected of having taken place since 1 January 2010, namely, (1) trafficking, supplying, producing and/or otherwise dealing in dangerous drugs and/or relevant substances or things contrary to the Drugs Misuse Act 1986 (Qld), (2) trafficking, supplying, possessing, manufacturing and/or modifying weapons and/or explosives contrary to the Weapons Act 1990 (Qld) and (3) money laundering contrary to the Criminal Proceeds Confiscation Act 2002 (Qld). To assist the investigation, on 1 July 2015 the Commission authorised the holding of hearings.[8] On the same day, the applicant was (among others) authorised to conduct closed hearings in relation to the investigation.[9][8]Pursuant to s 176 of the Act.[9]Pursuant to s 178 of the Act. On 30 June 2015, as part of the overall investigation, the respondent was arrested and charged with trafficking in dangerous drugs.[10] According to an affidavit sworn by one of the principal investigating officers, Detective Sgt Bowman, the respondent was charged after police gathered “sufficient evidence to implicate him as a principal offender” with respect to that alleged offence.[11] He was taken into custody and appeared in the Magistrates Court at Brisbane the next day (1 July 2015). The respondent was remanded in custody until 7 July 2015 when he was admitted to bail after a successful application in that court. He was released on the following day.[10]In alleged contravention of s 5(1) of the Drugs Misuse Act 1986 (Qld).[11]Affidavit of Craig Bowman sworn on 6 April 2016, par 5. On 18 August 2015, a notice requiring the respondent’s attendance at one of the authorised hearings was issued pursuant to s 82 of the Act. It was served on the respondent two days later. The notice required the respondent to attend at the Commission on 28 August 2015 and give evidence relating to his “knowledge of, and involvement in, possessing, supplying, producing and trafficking in dangerous drugs on the Gold Coast and elsewhere since 1 January 2015”. According to DS Bowman, the respondent was suspected of having “vital information” about the activities of a particular Outlaw Motorcycle Gang (OMCG), relevant to the overall investigation, that would assist in the identification of “further investigation measures to obtain evidence implicating more senior members” of the OMCG as well as identifying the “location of wealth derived” from the illegal activities of that organisation.[12] DS Bowman explained:“… I hold a suspicion that the respondent does have knowledge of the involvement of others in the serious indictable offences being investigated by the QPS and CCC in [the operation]. During the course of the investigation the [respondent] was previously identified as a fully patched member of the … OMCG. During the investigation in 2015 the respondent was identified as taking a role in the organization of club meetings, suggestive of the respondent holding a position of authority within the OMCG such as an “Enforcer”. The respondent was also identified as the user of a Blackberry “Phantom Secure” mobile phone, an encrypted communication device utilised by members of the … OMCG to communicate with one another in a manner designed to avoid police detection. Lawfully intercepted information obtained in the course of the investigation indicates the respondent was subsequently removed from the … OMCG, in circumstances described by a person identified as one of the respondent’s associates as “messing up a big thing”, which I suspect is a reference to messing up a drug deal”.[13][12]Ibid, par 8.[13]Ibid par 9.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Callanan v Witness M [2017] QSC 2
PARTIES:	JOHN DAVID CALLANAN as Presiding Officer of the Crime and Corruption Commission (applicant) v WITNESS M (respondent)
FILE NO/S:	SC No 3054 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 January 2017
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2016; supplementary submissions of the applicant received 9 August 2016; supplementary submissions of the respondent received 22 August 2016
JUDGE:	Burns J
ORDER:	*The order of the court is that the respondent be punished for contempt pursuant to s 199 of the Crime and Corruption Act* 2001 (Qld)**
CATCHWORDS:	CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – whether the onus of proof of the existence of a “reasonable excuse” rested with the respondent – whether there was a “reasonable excuse” within the meaning of s 190 of the Act for the respondent’s refusal to answer questions CONTEMPT – PARTICULAR CONTEMPTS – INTEREFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW – EXERCISE OF STATUTORY POWER TO OBTAIN INFORMATION – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – where the presiding officer decided that the respondent did not have a “reasonable excuse” within the meaning of s 190 of the Act and certified to the court in writing pursuant to s 198 of the Crime and Corruption Act 2001 (Qld) that he was satisfied that the respondent was in contempt – where an application was subsequently made to the court for an order that the respondent be punished for his alleged contempt – whether the respondent failed to answer a question put to him at the Commission hearing by the presiding officer without reasonable or lawful excuse – whether the respondent was in contempt of the presiding officer Crime and Corruption Act 2001 (Qld), s 4, s 5, s 82, s 176, s 178, s 180, s 190, s 194, s 197, s 198, s 198A, s 199 Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) Criminal Law (Criminal Organisations Disruption) and Other…