Commissioner for the Police Integrity Commission v Walker

[2006] NSWSC 645

CITATION:	Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 645 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 June 2006
JUDGMENT DATE :	20 June 2006
JURISDICTION:	Administrative Law List
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	06/20/2006
DECISION:	See para [33] of judgment
CATCHWORDS:	CONTEMPT - alleged contempt of Police Integrity Commission - where Commissioner "presents ... certificate to the Supreme Court" - whether Commissioner or Registrar is proper plaintiff
LEGISLATION CITED:	Police Integrity Commission Act 1996
PARTIES:	Commissioner for the Police Integrity Commission (Plaintiff) Christopher John Walker (Defendant)
FILE NUMBER(S):	SC 30108/04
COUNSEL:	R D Cogswell SC/ P F Singleton / A Mitchelmore (Plaintiff) A J McQuillen (Defendant)
SOLICITORS:	Ms M M O'Brien, Commission Solicitor (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McDOUGALL J

Tuesday 20 June 2006 Ex tempore (revised 21 June 2006)

30108/04 COMMISSIONER FOR THE POLICE INTEGRITY COMMISSION v CHRISTOPHER JOHN WALKER

JUDGMENT – (on application to stay, strike out or dismiss)

1 By summons filed on 10 December 2004, the plaintiff (the Commissioner) seeks relief in connection with an alleged contempt of the Police Integrity Commission (the Commissioner) said to have been committed by the defendant (Mr Walker).

2 The summons contains a statement of charge whereby it is alleged that Mr Walker "is guilty of a contempt of the Commission in that on 6 December 2004 in relation to a series of questions concerning certain events in which he was alleged to have been a participant [Mr Walker], by his answers, falsely asserted an inability to recollect the events such that he refused or otherwise failed to answer the relevant questions and did thereby conduct himself in a manner which interfered or tended to interfere, with the lawful investigations of the Commission".

3 Particulars are given of that statement of charge, by reference to a certificate provided by the Commissioner pursuant to s 119 of the Police Integrity Commission Act 1996 (the PIC Act).

4 When the proceedings came on for hearing this morning, Mr McQuillen of counsel, who appears in substance pro bono for Mr Walker, sought and obtained leave to file in Court a notice of motion seeking an order that the summons be stayed, struck out or dismissed either pursuant to UCPR rules 13.4 and 14.28, or pursuant to SCR Part 13 r 5 and Part 15 r 26. I heard argument on that question.

5 Mr McQuillen submitted that there were two reasons why his client was entitled to the substantive relief sought by the notice of motion. (I put aside the apparent irrelevance of the rules dealing with the striking out or dismissal of pleaded cases, since this proceeding was commenced by summons, not by a pleading. What I have to say concerns the substance, not the technicality, of the relief sought.)

6 The first ground advanced by Mr McQuillen in support of the notice of motion was that the proceedings were improperly constituted. To understand this argument, it is necessary to consider the provisions of the PIC Act dealing with the Commission, the Commissioner and contempt of the Commission.

7 The Commission is constituted by s 6 of the Act, and, by ss (2), has the functions conferred or imposed on it by or under that or any other Act.

8 The role of Commissioner is established by s 7 of the Act. By subsection (2) the Commissioner has the functions conferred or imposed on the Commissioner by or under the Act or any other Act.

9 The objects of the Act are set out in s 3 of the Act as follows:

“3 Principal objects of Act
The principal objects of this Act are:

(a) to establish an independent, accountable body whose principal function is to detect, investigate and prevent police corruption and other serious police misconduct, and
(b) to provide special mechanisms for the detection, investigation and prevention of serious police misconduct and other police misconduct, and
(c) to protect the public interest by preventing and dealing with police misconduct, and
(d) to provide for the auditing and monitoring of particular aspects of the operations and procedures of NSW Police.”

10 In pursuance of those objects, the Commission has the power to conduct investigations, including by holding hearings. In the course of conducting investigations, it has the power to summons persons to give evidence, and to require persons summonsed to answer questions, even though the answers may tend to incriminate them.

11 Against that background, ss 117 and following of the Act deal with contempt of the Commission. By s 117, the word "offender" is defined to mean "a person guilty or alleged to be guilty of contempt of the Commission".

12 By s 118(1) a person who does one of a number of things specified in paras (a) to (j) "is guilty of contempt of the Commission".

13 Section 119 deals with punishment of contempt. Having regard to the submissions that were put, I shall set out the section in full:

“119 Punishment of contempt
(cf ICAC Act s 99; RC Act s 18B)

(1) A contempt of the Commission may be punished in accordance with this section.
(2) The Commissioner may present to the Supreme Court a certificate setting out the details which the Commissioner considers constitutes the contempt.
(3) If the Commissioner presents such a certificate to the Supreme Court:
(a) the Supreme Court is required thereupon to inquire into the alleged contempt, and
(b) after hearing any witnesses who may be produced against or on behalf of the person charged with the contempt, and after hearing any statement that may be offered in defence, the Supreme Court (if satisfied that the person is guilty of the contempt) may punish or take steps for the punishment of the person in like manner and to the same extent as if the person had committed that contempt in or in relation to proceedings in the Supreme Court, and
(c) the provisions of the Supreme Court Act 1970 and the rules of court of the Supreme Court, with any necessary adaptations, apply and extend accordingly.
(4) Such a certificate is prima facie evidence of the matters certified.”

14 Mr McQuillen submitted that the relevant function of the Commissioner was to present a certificate setting out matters considered by the Commissioner to constitute a contempt of the Commission. Once that had been done, he submitted, the procedure to be followed was governed by the Supreme Court Rules: specifically, by SCR Part 55 r 11. Mr McQuillen submitted that the Commissioner had no further role in the inquiry mandated by s 119(3)(a) once the certificate had been presented. Thereafter, he submitted, it was necessary that the Registrar of the Court apply by motion, or commence proceedings, for punishment of the alleged contempt (SCR Part 55 r 11(1)).

15 Thus, Mr McQuillen submitted, the proceedings were improperly constituted because the Commissioner had gone further, in that the Commissioner had not only presented a certificate but had filed a summons claiming declaratory and substantive relief in respect of the contempt alleged in the certificate. He submitted, in substance, that it was the role of the Registrar to commence the proceedings, and that it was not competent for the Commissioner to do so. This followed, he submitted, from the circumstance that the office of Commissioner is a creature of statute and that the Commissioner has only the functions conferred upon a Commissioner by statute.

16 For the Commissioner, Mr Cogswell of Senior Counsel submitted that one needed to consider not only Part 55 r 11 but also Part 55 r 6. At this stage, it is necessary to observe that Part 55, on its face, deals with contempt of Court (see, for example, Part 55 r 1). However, clearly enough, the effect of s 119(3)(c) of the PIC Act is that Part 55 should be applied, with necessary adaptations, to proceedings under s 119.

17 Division 2 of Part 55 deals with contempt in the face or hearing of the Court. That has no present relevance, given that the Commission has no power, statutory or otherwise, itself to punish contenders for contempt in the face or hearing of the Commission.

18 Division 3 of Part 55 deals with motions or proceedings for punishment. It does not apply to any case in which the Court proceeds under division 2 itself to punish a person for contempt in the face or hearing of the Court as set out in r 2.

19 Rule 6 deals with procedure generally. Sub-rule (1) applies to "contempt ... committed in connection with proceedings in the Court". Sub-rule (2) deals with "contempt ... committed ... not in connection with proceedings in the Court". Mr Cogswell submitted that it was sub-rule (2) that was applicable because the present content was not one "in connection with proceedings in the Court".

20 I am not sure that this submission is correct. It must be borne in mind that Part 55 is to be applied not literally but by adaptation to the circumstances of a proceeding initiated pursuant to s 119. It is at least arguable that in Part 55 r 6(1), the reference to "proceedings in the Court" should be read, by adaptation to the circumstances of this case, as a reference to "proceedings in the Commission". If that were so then the present contempt, being one committed in connection with proceedings in the Commission, would be one to which Part 55 r 6(1) applies by adaptation.

21 However, that may not be correct. Where sub-rule (1) applies, the primary method for the contempt to be dealt with is by motion by notice in the proceedings in connection with which the contempt is committed. That is not available in this case because, as I have indicated, the Commission has no power to punish for contempt; its only function in this regard is to refer people alleged to be guilty of contempt to this Court. However, it may be observed that where, in defiance of the primary command of sub-rule (1), separate proceedings are commenced for punishment of a contempt, the proceedings so commenced may be continued unless the Court otherwise orders.

22 Thus, I think, it is at least arguable that Part 55 r 6 (1) applies. If it does apply, then it must be adapted. Clearly, and particularly having regard to the recognition that separate proceedings may continue, the adaptation would require the commencement of separate proceedings for the punishment of the contempt; and clearly, by reference back to s 119 of the PIC Act, the Commissioner is the person given the function of initiating those proceedings.

23 If, as Mr Cogswell submitted, it is sub-rule (2) that is relevant, then proceedings should be commenced by summons. On that assumption, the statutory command embodied in the Rules has been obeyed; and, as I have said, by s 119 (2) of the PIC Act the Commissioner is the appropriate person to commence those proceedings.

24 Rule 11 forms part of division 3 of Part 55. Between rules 6 and 11 there are rules dealing with matters of form (for example, a statement of charge – r 7), evidence (for example r 8, specifying evidence by affidavit) and other matters. In that context, I think, it is very difficult to view r 11 as embodying some general specification of the mode by which proceedings for contempt should be commenced: particularly having regard to the terms of r 6. Instead, I think, r 11 should be regarded as applying only within the specified area of operation that is set out in sub-rule (1).

25 I do not think that r 11 operates to cut down the generality of r 6. More generally, I think that when s 119(3)(c) of the PIC Act calls up the provisions of the Supreme Court Act and Rules, the rules thereby called up include not only r 11 but the whole of the rules in Part 55 to the extent that, by adaptation, they may be applied to the context of s 119.

26 These considerations suggest that the first ground upon which Mr Walker seeks to support his notice of motion should be rejected.

27 I think that some support for this conclusion can be obtained from the wording of s 119 itself. As has been seen, the Commissioner is given the function, at his or her discretion, of presenting to this Court a certificate setting out the details alleged by the Commissioner to constitute contempt of the Commission. Where such a certificate is presented, the Court "is required" to hear the dispute thereby constituted. The certificate is not the initiating process; ordinarily, proceedings are commenced by summons or by statement of claim. But the certificate is the matter that sets out, at least from the Commissioner's perspective, the bounds of the controversy. It is the document that defines the issues before the Court. The requirement that the Court enquire into the alleged contempt "thereupon" - ie, upon presentation of the certificate - suggests to me that the mechanism of Part 55 r 11 has no role to play.

28 The second ground of objection advanced by Mr McQuillen was that the summons sought, inappropriately, declaratory relief.

29 The relief sought by the summons includes, by prayer 1, a declaration that Mr Walker is guilty of contempt of the Commission (in a specified way); and, by prayer 2, an order that Mr Walker be committed to imprisonment for that contempt.

30 Mr McQuillen submitted that declaratory relief was inappropriate for two reasons: firstly, the Commission was not a party to the proceedings; secondly, it is inappropriate to grant declaratory relief in criminal or quasi criminal proceedings.

31 Those submissions may well be correct. But if they are correct, they amount to reasons why the relief sought by prayer 1 of the summons would not be granted. They do not amount to reasons why the summons should be stayed, struck out or dismissed.

32 Mr McQuillen submitted that if prayer 1 were struck out, it would be necessary for the summons to be reformulated to make sense. That may be so. However, the nature of the charge pressed against Mr Walker would remain precisely the same. Any reformulation of the relief sought consequent upon a hypothetical striking out of prayer 1 would not in any way cause prejudice to Mr Walker, and would not prevent the matter from proceeding. In those circumstances, given the lack of utility, I would not grant relief on the second ground even if I were satisfied that the submissions in support of it were otherwise good. But since I have in fact reached no conclusion on those grounds, I will do no more than say that, even if made good, they do not afford a sufficient ground for the relief prayed by the notice of motion.

33 I therefore decline to grant the relief sought by the notice of motion.

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11/07/2006 - Change to the name of plaintiff's solicitor on record sheet - Paragraph(s) Change to the name of plaintiff's solicitor on record sheet