Commissioner for the Police Integrity Commission v Walker [No 2] - [2006] NSWSC 696

No judgment structure available for this case.

CITATION: Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696

HEARING DATE(S): 20/06/2006, 21/06/2006, 27/06/2006, 28/06/2006 and supplementary written submissions 11/07/2006

JUDGMENT DATE :
14 July 2006

JURISDICTION: Administrative Law List

JUDGMENT OF: McDougall J at 1

DECISION: See para [231] of judgment

CATCHWORDS: CONTEMPT- of Police Integrity Commission - where witness falsely asserts lack of recollection - where witness not provided with particulars - where application for adjournment to put on medical evidence refused on incorrect and irrelevant grounds - whether witness denied opportunity to show cause - where hearing on the merits has now occurred - whether proceedings should be stayed permanently - whether lack of recollection was feigned, deliberately false and intended to or did obstruct Commission’s inquiry - whether witness is guilty of contempt of Commission under s 118(1) (h) of Police Integrity Commission Act 1996

LEGISLATION CITED: Police Integrity Commission Act 1996

CASES CITED: Coward v Stapleton (1953) 90 CLR 573
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162
Kesavarajah v The Queen (1994) 181 CLR 230
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
R v Mailes (2001) 53 NSWLR 251
R v Presser [1958] VR 45
R v WRC (2003) 59 NSWLR 273
United States v Appel (1913) 211 Fed Rep 495

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: M M O'Brien, Commission Solicitor (Plaintiff)

2

Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696

INDEX TO JUDGMENT

Paragraph number

The legislative scheme 2

The alleged contempt and the relief sought 12

Outline of the Commissioner’s case
15

Outline of Mr Walker’s case
20

The relevant principles
26

A challenge to the legitimacy of the proceedings
45

The events of 8 December 2004 47

An erroneous approach to the adjournment application 63

The debate over particulars 68

A further error in approach 71

Unseemly haste 76

The role of s 120 79

Opportunity to show cause denied 84

Consequences 86

Conclusion on this point 100

Mr Walker’s evidence before the Commission 101

Evidence on 6 December 2004 102

Evidence on 18 January 2005 112

Warnings 116

References to lack of memory 121

The telephone conversation 126

Mr Walker’s evidence before this Court 133

The medical evidence 164

Dr Casamento 165

Dr Menzies 166

Dr Girgis 170

Dr Westmore 172

Dr Roberts 180

Analysis 188

Inherent implausibility 191

Effect of the medical evidence 199

Differential powers of recollection 208

Recovery of memory on 18 January 2005 212

The telephone conversation of 6 December 2004 213

Mr Walker’s credibility 215

Other matters 218

The relevant evidence was intentionally false 225

Conclusion 231

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

McDOUGALL J

14 July 2006

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

JUDGMENT

1 HIS HONOUR: The defendant (Mr Walker) was a police officer for three discrete periods between 1969 and August 1999. In the course of his service, he became acquainted with, and served at Newtown Police Station with, another police officer, Mr Christopher John Laycock. The Police Integrity Commission (the Commission) conducted a hearing in the course of investigating whether Mr Laycock or any person associated with him was, or had been, involved in criminal activity or serious police misconduct. The Commission summoned Mr Walker to give evidence, and he did so on 6 and 8 December 2004 and 18 January 2005. The plaintiff (the Commissioner), who presided over the hearing, says that a number of Mr Walker’s answers in that evidence were false or evasive. In these proceedings, he alleges that Mr Walker is thereby guilty of contempt of the Commission, and seeks an order that he be punished by imprisonment.

The legislative scheme

2 The Commission is established by the Police Integrity Commission Act 1996 (the PIC Act). Section 3 declares the principal objects of that Act as follows:

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

3 The Commission is established by s 6(1) of the PIC Act; and s 6(2) provides for the Commission’s functions. Section 6 reads as follows:

“Part 2 – Constitution of Commission

6 Commission
(cf ICAC Act s 4)

4 Section 7(1) of the PIC Act provides for the appointment of the Commissioner; and s 7(2) provides for the Commissioner’s functions. Section 7 reads, relevantly, as follows:

“7 Commissioner

5 The functions of the Commission are set out in ss 13 and following. Those functions include the investigation of what is called “serious police misconduct” (s 13(1)(b)). For the purpose of carrying out investigations, the Commission may by compulsion obtain information, documents and other things, and may hold hearings in public or in private (s 33). The Commission is not bound by the rules of evidence, and is required to act with as little formality and technicality as possible (s 20).

6 Section 38 empowers the Commission to summon witnesses and to take evidence. Section 40 specifies that a witness cannot refuse to answer questions, or produce documents or other things, on the ground of self- incrimination; but provides protection where objection is taken.

7 Part 9 of the Act creates offences including, by s 107, an offence of knowingly giving evidence that is false or misleading in a material particular.

8 Part 10 deals with contempt. Section 118(1) declares a number of matters to be contempt of the Commission. It provides, relevantly, as follows:

“118 Contempt

(1) A person who:
….
(c) being called or examined as a witness before the Commission, refuses to be sworn or to make an affirmation or refuses or otherwise fails to answer any question put to the person by the Commissioner or an Assistant Commissioner, or
…
(h) does any other thing that, if the Commission were a court of law having power to commit for contempt, would be contempt of that court, or…

9 Section 119 deals with the punishment of contempt. That is done not by the Commission, but by this Court on what is in effect a reference (by way of a “certificate”) from the Commissioner. The section provides, relevantly, as follows:

“119 Punishment of contempt

Supreme Court Act 1970

10 Section 120 sets out some “[g]eneral provisions regarding contempt”. It provides as follows:

11 Section 121 deals with the situation where an act or omission is both an offence and a contempt of the Commission. It provides as follows:

“121 Act or omission that is both an offence and contempt

The alleged contempt and the relief sought

12 By his summons in this Court filed on 10 December 2004, the Commissioner claimed the following relief:

“1. A declaration that the Defendant is guilty of a contempt of the Police Integrity Commission (hereinafter referred to as “the Commission”) in that on 6 December 2004 being a person examined as a witness before the Commission he refused or otherwise failed to answer relevant questions and did thereby conduct himself in a manner which interfered or tended to interfere with the lawful investigations of the Commission.

2. An order that the Defendant be committed to imprisonment for such contempt.

3. Such further or other orders as the Court deems fit.

4. An order that the Defendant pay the costs of these proceedings.”

13 The summons contained a statement of charge, the terms of which were in part replicated in prayer 1 of the summons. It reads as follows:

“It is alleged that the Defendant 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 the Defendant, 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.”

14 There were particulars given, by reference to the certificate of the Commissioner, under s 119. That certificate, and documents referred to in it, were annexed to the summons.

Outline of the Commissioner’s case

15 The Commissioner’s case, in relation to the alleged contempt, as formulated in the summons, focussed on Mr Walker’s evidence in relation to what the Commissioner referred to as the “Burwood event” and the “Chiswick event”. The former occurred in December 2003 (a year before Mr Walker gave evidence to the Commission) and the latter occurred in July 2004 (five months before Mr Walker gave evidence).

16 Senior counsel assisting the Commission put to Mr Walker that he, Mr Laycock and another person (on one occasion) or other persons (on the other) went to premises at, respectively, Burwood and Chiswick and (purporting to be and to act as police officers but in truth acting in their own interests) extorted money from the occupiers of those premises and divided the proceeds amongst themselves. (I have said “purporting to … act as police officers”: Mr Laycock at the relevant times was, but Mr Walker at the relevant times was not, and the person or persons accompanying them at the relevant times were not, police officers.) The allegations were put both generally and in some detail.

17 As to each event, Mr Walker’s evidence on 6 December 2004 was that he could not “recollect” the events or the details relating to them that were put to him. It was plain from his evidence (both before the Commission and before this Court) that when he said that he could not “recollect” the events he was not denying them, but saying, rather, that he had no recollection one way or the other of either the events themselves or of the details of them that were put to him.

18 In substance, the Commissioner’s case, again as formulated in the summons, was that the answers given by Mr Walker in relation to those events were false to his knowledge, so that, by asserting that he had no recollection when in truth he did, he had failed to answer the relevant questions (s 118(1)(c)). Alternatively, the Commissioner said, the answers amounted in each case to “a constructive refusal to answer” (certificate, para 24) so that they amounted to a contempt at common law (s 118(1)(h)).

19 In final submissions, the Crown Advocate, Mr Cogswell SC (who appeared with Mr Singleton and Ms Mitchelmore of Counsel for the Commissioner), accepted that the “particulars” (as he said they were) in relation to the Burwood event could not be sustained. However, he submitted, the charge could be, and was, made out in relation to the Chiswick event.

Outline of Mr Walker’s case

20 Mr McQuillen of Counsel, who appeared for Mr Walker, attacked the Commissioner’s case in four different ways. Firstly, at the outset, he made an application that the proceedings should be stayed, struck out or dismissed. I held that they should not be: [2006] NSWSC 645.

21 Secondly, at the conclusion of the Commissioner’s case, Mr McQuillen submitted that there was no case to answer. I held that there was, for the reasons given on 21 June 2006.

22 Thirdly, at the conclusion of the evidence and after the Crown Advocate had addressed in chief, Mr McQuillen made further submissions relating to what might be called the legitimacy of the proceedings. I deal with that challenge in paras [45] and following below.

23 Finally, Mr McQuillen submitted that there was evidence (including from a number of doctors) to show that Mr Walker had suffered from an anxiety condition and depression before and during the giving of his evidence on 6 December 2004; and that these conditions, together with the medication that he was taking for them (on prescription) and the stress occasioned by the proceedings in so far as they concerned Mr Walker, had affected, or may have affected, his memory, to the point where it could not be concluded beyond reasonable doubt that Mr Walker’s lack of recollection was feigned, and deliberately and falsely so.

24 Mr McQuillen drew a distinction between the situation in this case, where the relevant conclusion is a matter of inference from the evidence, its subject matter and the circumstances in which it was given, with the situation where a witness who has given previous sworn testimony refuses to adhere to it, or to “recollect” the matters that were the subject of that testimony. An example of the latter case may be found in Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162: a decision that I discuss later in these reasons.

25 The Crown Advocate accepted that, the issue being one raised both on the material before the Commission and on the material (including that tendered by the Commissioner) before me, the Commissioner bore the onus of satisfying me that the medical issues (if I may call them that compendiously) could not occasion a reasonable doubt as to Mr Walker’s guilt. In this context, he did not rely on s 119(6) of the PIC Act as imposing any onus on Mr Walker in respect of the medical issues.

The relevant principles

26 The Crown Advocate submitted that the relevant principles were stated in the judgment of the High Court of Australia in Keeley. Mr McQuillen agreed that this was so.

27 As I have noted, Keeley was a very different case factually. The appellant had given evidence on oath in committal proceedings against a police officer charged with bribery. However, at trial, the appellant “repeatedly professed in evidence that he was unable to remember, either in detail or at all, his evidence in the committal proceedings and any of the events to which it related” (143 CLR at 162). The trial judge, Brooking J, charged the appellant with contempt and stated the offence as follows (143 CLR at 163):

“In substance [the contempt] was that in the course of the applicant’s evidence at the trial he had not given, and had not made any serious attempt to give, what could properly be called an answer to the questions put to him.”

28 Brooking J found the appellant guilty of contempt, convicted him and sentenced him to six months’ imprisonment. The High Court by majority (Barwick CJ and Stephen, Mason and Aickin JJ; Murphy J dissenting) upheld the conviction and sentence.

29 Barwick CJ set out at 166-167 an extract from the reasons of Brooking J, who had said that a witness may be guilty of contempt when, having been sworn, he deliberately evades questions by some device such as feigned inability to recollect. He said that this was no less a contempt than an open and direct refusal to answer; indeed, it interfered with the administration of justice “in a subtle and insidious way”. Barwick CJ agreed that this was a statement of “the relevant law”.

30 As Barwick CJ put it at 169, it is necessary to show that:

· The witness has a recollection of the matters about which he was questioned; and

· His false assertion that he could not recollect that matter “was a refusal by prevarication to answer the questions”.

31 Barwick CJ dealt with the distinction between “simple” perjury and contempt by perjury at 169. The essence of the latter lay in the purpose or intent of the perjury. His Honour said:

“If it could be concluded beyond all reasonable doubt that the false swearing was with the actual or inevitable intent or consequence of frustrating or obstructing the proceedings, the party or witness could be dealt with for contempt of the tribunal. But that intent or inevitable consequence would differentiate what I might call perjury from contempt. The contempt would lie in the obstruction or frustration of the proceedings actually intended or necessarily consequential.”

32 It is apparent, putting this passage together with what his Honour had said earlier at 169 (para [30] above), that although the essence of the contempt lies in the intention or consequence of obstruction or frustration, that intention may be inferred from the facts (if found) that the witness has a recollection but, by feigning lack of recollection, refuses “by prevarication” to answer.

33 Barwick CJ pointed out at 170 that “a case of contempt by false swearing must be relatively rare”. This view, echoed by others in the majority, was something on which Mr McQuillen placed significant reliance in the present case.

34 Stephen J at 172 pointed out that the essence of contempt by false swearing of lack of recollection is that the feigned forgetfulness is professed “to fob off inquiry” (quoting Learned Hand J in United States v Appel (1913) 211 Fed Rep 495 at 496). Stephen J said that, because there is the possibility that the witness may in fact have made an effort in good faith to answer the questions, and may in fact lack recollection, the court needs to exercise great care in satisfying itself that the witness’s answers are deliberately untruthful, and given with the purpose of fobbing off inquiry. His Honour cited Coward v Stapleton (1953) 90 CLR 573 at 580 as emphasising the need for great care.

35 Mason and Aickin JJ in their joint reasons likewise referred (at 176) to the need for caution. However, as they said, if the tribunal of fact were satisfied beyond reasonable doubt that the relevant criteria defining the offence have been made out, no more is required. They cited Learned Hand J in Appel at 495 for the proposition that:

“If the witness’ conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court”.

36 At 178, their Honours referred in detail to the judgment in Coward. They took from it the following propositions:

(1) Where a witness has in form answered questions, the court must be satisfied that there is “an evinced intention to leave a question or questions unanswered” before it can find the witness guilty of contempt by reason of refusal to answer (the refusal to answer being, apparently, a constructive refusal inferred from, for example, falsely feigned lack of recollection).

(2) There must be some form of manifestation of an intention not to give a real answer, which may depend on considerations of degree.

(3) There is a difference between the case of a witness who gives a false account in answer to questions and a case where the witness persistently and untruthfully asserts lack of recollection (“the witness persistently asserts in relation to a number of transactions and events that he cannot recollect them when there is every reason for thinking that he would recall them” (emphasis supplied)).

(4) In the first case, a finding that the witness is not telling the truth does not show that he is refusing to answer. In the second, there are stronger grounds to conclude that the witness is both giving false answers and doing so in an attempt to refuse to answer the questions put to him.

(5) In the latter case, a finding of falsely feigned lack of recollection “leads inevitably to the further conclusion that [the witness] is refusing to answer”.

37 At 179, their Honours concluded that the appellant “persisted in a course of conduct designed to evade answers to questions put to him and thereby to obstruct the trial”. That, their Honours said, “fully justified” the conviction and sentence.

38 As I have noted, the Commissioner relies on paras (c) and (h) of s 118(1) of the PIC Act. For the purposes of (c), the Commissioner must show that Mr Walker refused or otherwise failed to answer questions put to him. There is no doubt that he did give answers to the relevant questions. The issue, for the purposes of para (c), is whether a refusal or failure to answer must be direct, or whether it can be, as the Commissioner put it in the certificate, “constructive”.

39 However, it is clear that para (h) calls up the common law concept of contempt, including contempt constituted by deliberate and falsely asserted lack of recollection, undertaken to fob off inquiry, of the kind referred to in Keeley and in Coward.

40 Since the resolution of these proceedings does not depend on a resolution of the issue that I have noted in relation to para (c), I shall not undertake that task. It seems to me to be clear that if the charge of contempt cannot be sustained under para (h), then it must necessarily fail under para (c).

41 For the purposes of para (h), I take the inquiry to involve the following elements, as extracted from the judgments in Keeley:

(1) Was Mr Walker’s asserted lack of recollection on 6 December 2004, in relation to the Chiswick event, feigned or real?

(2) If feigned, was it deliberately so – ie, was his evidence that he had no recollection of the relevant events deliberately false?

(3) If those answers were deliberately false, were they given in an attempt to prevaricate, or to avoid answering the questions, or to fob off the Commission’s inquiry, so as to leave the questions in truth unanswered?

(4) If they were so given, was it with the intent of obstructing the Commission’s inquiry?

42 I have not referred to the Burwood event, for the reason given in para [19] above.

43 In approaching the issues thus formulated, I remind myself that cases of contempt by false swearing are relatively rare and that, because of the possibility that the answers may in fact be honest, I must exercise great care in approaching the question, whether Mr Walker is guilty of contempt as charged. But the obligation to exercise great care applies to the consideration of whether there is proof beyond reasonable doubt of each element of the charge. It does not impose some more stringent standard of proof.

44 I accept, as Mr McQuillen submitted, that Mr Walker bears no onus of proof. This submission, although made specifically in relation to the medical evidence (which I address in a discrete section of these reasons), is of course of general application, and I treat it as such.

A challenge to the legitimacy of the proceedings

45 As I have noted, Mr McQuillen in his final address made further submissions relating in essence to the legitimacy of the proceedings. He recognised that the submission might (and should) have been made earlier; but in the circumstances in which he came to be retained, I offer no criticism of him because this was not done.

46 The submissions related to the way in which the Commissioner on 8 December 2004 went about the process of offering Mr Walker an opportunity to show cause. Mr McQuillen submitted that for two reasons the Commissioner had offered no proper opportunity to Mr Walker to show cause. Thus, Mr McQuillen submitted, the Commissioner’s consideration of the question of contempt was no valid or sufficient consideration, and his certificate purportedly founded upon and embodying the results of that consideration was no valid or sufficient certificate. It followed, Mr McQuillen submitted, that the proceedings were improperly constituted. Alternatively, he submitted, I should as a matter of discretion stay them because Mr Walker had not been given a real or proper or substantial opportunity to show cause.

The events of 8 December 2004

47 When the hearing resumed on 8 December 2004, Mr Walker was represented by Mr Lakatos of Counsel (who had not represented him on 6 December 2004).

48 Mr Lakatos made two applications. One was for “particulars of any alleged contempt” (CT 327.18). The other was for “an adjournment for a period of … three weeks … to obtain further medical evidence.” (CT 327.20-.26).

49 Senior counsel assisting the Commission opposed the application for adjournment, and that was dealt with first. Mr Lakatos referred to the serious consequences that would flow if the Commissioner decided to issue a certificate (CT 328.34). He then referred to the fact that Mr Walker had “squarely raised” the issue of lack of memory (CT 328.45-329.1); and to the fact that “the two central doctors … Dr Menzies and Dr Westmore” had looked at this problem (CT 329.5-.8).

50 Mr Lakatos acknowledged that neither Dr Menzies nor Dr Westmore either acceded to or denied the proposition that Mr Walker did in fact suffer from memory problems (as opposed to the fact that he had complained of memory problems), and said very fairly that he was not “suggesting that they give support for the fact that there is some medical or other reason for memory loss” (CT 329.12-.14).

51 However, Mr Lakatos submitted that memory loss could occur by reason of a number of matters including trauma, reaction to potential culpability or effects of medication; and that he would seek to adduce medical evidence in respect of these matters. In that regard, he said, a psychiatrist had been retained, and a report could be furnished to the Commission within three weeks (CT 329.22-.39).

52 Mr Lakatos concluded by submitting that the balance of convenience favoured allowing Mr Walker an adjournment to seek to support his case, on the “show cause” issue, by medical evidence (CT 330.24-.28).

53 Senior counsel assisting the Commission stated that the investigation “involves allegations of very, very serious police and other misconduct” and that it was “developing by the hour” (CT 330.33-.40).

54 He then submitted that Mr Walker had had, and had not availed himself of, an opportunity to put forward medical evidence (CT 331.11-.18):

55 The Commissioner appeared to accept this point. He said (CT 331.36-332.3):

56 Pausing there, I think that there is a fundamental illogicality in the submission of senior counsel assisting, and in the Commissioner’s apparent acceptance of it. The question for decision was whether the Commissioner should certify to this Court that in his opinion Mr Walker was guilty of contempt by reason of refusal, or constructive refusal, on 6 December 2004 to answer questions relating to the Burwood and Chiswick events (I am aware that the Burwood event is no longer in issue, but it certainly was on 6 and 8 December 2004). One suggested reason for the asserted lack of recollection was that Mr Walker’s memory was impaired, either as a result of his mental condition, or as a result of the medication that he had been taking, or as a result of both matters. It is correct to say that this issue had been raised by Mr Walker during the course of his evidence on 6 December 2004: in fact, it had been raised repeatedly.

57 In those circumstances, the question was not what might have been prognosticated after Dr Menzies and Dr Westmore had reported (on 20 October and 8 November 2004 respectively) but what could be said about Mr Walker’s mental state, and the impact of his medication, on 6 December 2004. Of necessity, that required attention to be paid to the events of 6 December 2004, including Mr Walker’s evidence and his asserted lack of recollection. To say that Mr Walker could have adduced evidence in advance to explain what in fact happened is illogical, unless it be assumed that Mr Walker should have foreseen that he would be afflicted by loss of memory.

58 Mr Lakatos pointed this out (CT 332.19-.24):

“ … it would be a very curious thing, with respect, for somebody who comes to a court to say, "I know I'm going to say I don't remember and here's the medical certificate which justifies my saying so." The kind of inference one might draw about that is of tremendous calculation by a witness which, in itself, would be suspicious. … “.

59 The Commissioner stated that he accepted the proposition just put (CT 332.27). It did not appear to concern the Commissioner (or if it did, he gave no indication) that his acceptance of the proposition put by Mr Lakatos was a complete answer to the submission of senior counsel assisting, and to the Commissioner’s (initial) reaction to that submission.

60 Unfortunately, matters did not end there. Senior counsel assisting had indicated that he wished to call Mr Walker to question him on the telephone conversation that Mr Walker had had with his wife after giving evidence on 6 December 2004. The Commissioner permitted that to happen without ruling on the application for adjournment. He did not explain why he did so. It may have been that he thought that the evidence was relevant to the adjournment application. Or he may have thought that it was relevant to the show cause application. The former reason may have been legitimate; the latter would not have been, in circumstances where there had been no ruling on the adjournment application.

61 Mr Walker gave the evidence, and debate then shifted to the conversation and the evidence given in relation to it (CT 342.17 and following). In the course of that debate, the Commissioner returned to the view earlier expressed, that “there was time for [Mr Walker] to have been in a position to deal with this issue, if it arose, the question of his memory” (CT 343.16-.18). He pointed out that “[t]he medical evidence that’s before the Commission at this stage certainly doesn’t assist him greatly, as I’m sure you know.” That is hardly surprising, for the reason given in para [57] above.

62 Mr Lakatos acknowledged the truth of the Commissioner’s proposition (which in any event was no more than Mr Lakatos had already, and properly, accepted when putting submissions on the application for adjournment).

An erroneous approach to the adjournment application

63 Mr Lakatos made further submissions, and senior counsel assisting replied. The Commissioner then, and still without ruling on the application for adjournment, adjourned to seek to ascertain “how promptly this matter would be dealt with by the Supreme Court” if it were referred (CT 345.32.-.34). He explained this by saying, “I have found nothing in the reasonable excuse that would deter me from my preliminary view that your client was in contempt of the Commission. Having said that if no good purpose can be served by me [sic] issuing a certificate today, it may well be that we’ll proceed further down the medical evidence. [sic] I’m not convinced at this stage.”

64 This passage appears to misstate, in a fundamental way, both what had happened and what was the duty of the Commissioner. Mr Walker had not offered, and was not then required to offer, a reasonable excuse. He had submitted, for the purpose of showing cause why the matter should not be referred to this Court, that there might be a medical explanation for his condition. He said that he wished to have an adjournment to obtain medical evidence that he could tender on the “show cause” issue.

65 The issue for the Commissioner’s decision was not whether there was a reasonable excuse for the acts or omissions alleged to constitute contempt. It is clear from s 119(6) that this is a matter to be raised by an alleged contemnor before this Court, in proceedings founded on a certificate from the Commissioner. The question for the Commissioner was whether to issue such a certificate. It was legitimate for him to have formed a preliminary view that Mr Walker was in contempt of the Commission. Indeed, had he not formed that view there would have been no point to the show cause proceedings. But the Commissioner’s duty was to afford Mr Walker an opportunity to show cause and, if Mr Walker sought to do so, to determine whether, as a result of the matters put, he should proceed on his preliminary view (and present a certificate to this Court), or whether he should decide to take the matter no further.

66 This is no mere academic concern. It appears to be the basis for what I perceive to be a fundamental error of approach revealed in the conclusion that I have set out in para [63] above. As I have said, Mr Walker was invited to show cause; and had made it clear that he wished to do so. In support of that, he said that he wished to lead medical evidence; and that the evidence, by dealing with his mental state and the effect of his medication as at 6 December 2004, would be the foundation of the show cause application. It is fundamentally illogical, and erroneous in point of principle, to determine the fate of the show cause application (and of an application for adjournment made in the course of it) by asking how quickly proceedings might be brought on for hearing in this Court. The question was whether or not proceedings should be brought in this Court, not how quickly they could be brought and determined. It is clear, from the passage that I have set out, that the Commissioner regarded the governing consideration, on the application for adjournment, as being the speed with which proceedings could be heard and determined in this Court. By approaching the matter in that way, the Commissioner overlooked that the very matter for consideration was whether proceedings should be brought at all. That approach lacks logic, and is flawed in principle.

67 When the proceedings resumed before the Commission, the Commissioner stated that his “inquiries indicate that the matter can be dealt with [in this Court] very promptly” and that he proposed “to take that into mind” (CT 347.14-.16). This confirms the illogical and erroneous approach that is apparent from the earlier passage that I have set out. I am left with the uneasy feeling that the Commissioner perceived that the institution of proceedings in this Court might “jog” Mr Walker’s memory: a suspicion that is not dispelled by the failure apparently to consider, and certainly to explain, the unseemly haste with which matters were dealt with on 8 December 2004 (see para [77] below).

The debate over particulars

68 The Commissioner then turned to the question of particulars. In doing so, it is apparent that he had in effect (although not in express terms) dealt with the application for adjournment, by refusing it. It is apparent that his reason for doing so either was, or included, that the proceedings could be brought on quickly in this Court. The adjournment was thus refused on the, or a, ground that was illogical and erroneous.

69 The debate over particulars was unclear. Senior counsel assisting appears to have taken the view that Mr Walker knew very well the passages in his evidence that were suggested, by reason of feigned lack of recollection, to have been false (see, for example, CT 349.29-.38). Mr Lakatos made it clear that what he required was firstly an identification of the particular paragraphs of s 118 that were relied upon and, where they were relied upon in relation to particular questions and answers, specification of the questions and answers that were relied upon.

70 Senior counsel assisting then adverted to some (but by no means all) of the passages that have since been identified by the Commissioner in the transcript annexed to his certificate presented to this Court. The Commissioner interrupted this process, saying (CT 351.33-.46):

“ … that it doesn’t actually assist us, unless you propose to deal with each of these answers and put forward some reasonable excuse for the answers as they arise in particular one by one.

A further error in approach

71 Again, it is apparent, the Commissioner appears to have confused his function (which was to see whether cause had been shown) with whether there was a reasonable excuse; although it may be that he regarded the one as equivalent to the other. But in any event, his approach to the question of particulars was in my view erroneous.

72 The opportunity to show cause serves a number of functions. One is to enable the alleged contemnor to show that the matters relied upon do not constitute contempt. Another is to allow the alleged contemnor to propound some reason for the matters, so that even though prima facie they are indicative of contempt, no proceedings should be instituted. (In this aspect, the concepts of “show cause” and “reasonable excuse” may intersect.) A third function is to allow the alleged contemnor, should he choose to do so, to seek to purge his contempt.

73 Before an alleged contemnor can show cause, it is essential that he know what is alleged to have constituted the contempt. Where the contempt is said to arise from feigned lack of recollection, so as to fob off inquiry and evince a constructive refusal to answer, the precise questions and answers (and their contexts) should be identified. If that is not done with particularity then (for example) the alleged contemnor will not know what it is that he should do to purge his contempt (if that is the path that he wishes to take).

74 The Commissioner, apparently acceding to the robust view asserted by senior counsel assisting, seems to have taken the view that Mr Walker understood well enough what it was that he was required to answer. But, whilst in general this may have been so, it does not follow that Mr Walker was aware of each particular question and answer upon which reliance was placed. Nor – and more importantly – does it follow that Mr Lakatos was aware.

75 In, my view, when the Commissioner stopped counsel assisting from continuing to identify the passages relied upon, and made no order for an equivalent specification of those passages to Mr Walker, he erred.

Unseemly haste

76 I accept that the work of the Commission is of great importance. I accept that in particular cases, it will be essential to the effective performance of that work that investigations are carried out speedily. I am prepared to accept that, as senior counsel assisting submitted, this was such a case.

77 Nonetheless, no one ever addressed the reason why the need for haste was so great that an adjournment for three weeks could not have been granted. The Commissioner’s only reflection on the time issue was his reference, in determining the fate of the application for an adjournment to obtain medical evidence, to the speed with which proceedings could be heard and determined in this Court. Apart from this, and the reference by senior counsel assisting to the investigation’s “developing by the hour”, it does not appear that anyone considered why an adjournment of the duration sought might imperil the investigation. The reference to the investigation being one that is “developing by the hour” is neutral in this respect. It does not follow, because the investigation was developing by the hour, that the reference of Mr Walker to this Court to be dealt with for contempt was of key importance.

78 I have acknowledged the importance of the Commission’s work. That explains the substantial powers that it has been given, including the power to refer matters to this Court under s 119. But, equally, the position of individuals affected by the Commission’s work cannot be overlooked. It is fundamental that a person who is alleged to have committed a criminal contempt be apprised of the basis on which that accusation is made, and of adequate particulars to enable the accusation to be considered and dealt with appropriately (including, as I have said, by having an opportunity to purge the contempt). Section 120(1), dealing with summonses to show cause, recognises that fundamental right.

The role of s 120

79 The Crown Advocate submitted that it was not incumbent on the Commissioner to proceed under s 120(1). He submitted that s 119 provided a self contained code, and that the Commissioner could present a certificate to this Court without first calling on the alleged contemnor.

80 I do not think that this proposition should be accepted. On the contrary, I think, s 120 applies whenever the Commissioner intends to present a certificate; and that it requires the Commissioner to give the alleged contemnor an opportunity to show cause before the final decision is made. It will be noted that the subsection applies “[i]n the case of any alleged contempt” (emphasis supplied).

81 Although the requirement to summon to show cause is expressed in discretionary terms (“may summon”), this means no more than that the Commissioner is not required to prosecute all possible contempts. It does not mean that where the Commissioner intends to present a certificate to this Court, he need not (if he does not wish to do so) first call on the alleged contemnor to show cause. In other words, it is not necessary that the Commissioner should present a certificate in respect of each and every alleged contempt; but where he has formed a prima facie view that he should do so, he must follow the show cause procedure.

82 In any event, it is apparent that the Commissioner did offer Mr Walker an opportunity to show cause. It is clear from the transcript of 6 December 2004 that the Commissioner regarded Mr Walker’s attendance on 8 December 2004 as being pursuant to a summons to show cause (CT 295. 11-.15, .29-.33).

83 The Crown Advocate accepted that, if the alleged contemnor were entitled to an opportunity to show cause (either because that entitlement arose in all cases on the proper construction of s 120(1), or because it was offered in an individual case), then the entitlement was to a real, or genuine, or meaningful, opportunity to show cause.

Opportunity to show cause denied

84 In my view, Mr Walker was denied, on inadequate and erroneous grounds, any real opportunity to show cause. There are two reasons for this. First, his application for an adjournment to present medical evidence, going to an issue that on any view had been raised, was refused on illogical and erroneous grounds. Secondly, he was never given proper particulars of the alleged contempt, so as to be able to know (and so as to enable his counsel to know) with precision the matters in respect of which the opportunity to show cause was given.

85 The result is that the certificate that was presented to this Court was presented without permitting Mr Walker an opportunity (in the sense of a real or genuine or meaningful opportunity) to show cause. Further, and consequent upon that denial, the “consideration” embodied in it did not embody any consideration of matters that might have been raised by Mr Walker pursuant to his entitlement (as I have held it to be) to show cause.

Consequences

86 The statutory requirement (as I have held it to be) to offer an alleged contemnor an opportunity to show cause before finally deciding whether to present a certificate is, in substance if not in every way, a statutory scheme to provide a measure of natural justice to the alleged contemnor. A failure to offer the opportunity, and thereby a failure in substance to offer the requisite measure of natural justice, may be said to vitiate the decision to present the certificate.

87 There is a continuing debate as to the effect of a failure to comply with the applicable requirements of natural justice. In Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, Aickin J (with whose conclusions Stephen J, although giving short separate reasons, agreed) said at 277 that an act done without compliance with applicable principles of natural justice was not void ab initio, but valid and effective until successfully challenged. Where an act was successfully challenged for failure to comply with applicable principles of natural justice, it is taken to have been void from the time it was made:

“ … That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Accordingly, it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act at all and supportable (if at all) as an effective act only on some other basis. This argument must therefore be rejected.”

88 In Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, Hodgson JA (with whom Mason P and Giles JA agreed) pointed out at 442-443 [57] that there is still some controversy as to whether denial of natural justice results in the decision thereby tainted being void or voidable; his Honour referred to a number of authorities, but without referring to the decision of Aickin J in Forbes. However, his Honour said, “where there is a disclosed legislative intention to make a particular measure of natural justice a pre-condition of validity, failure to afford that measure of natural justice does make the determination void.”

89 The approach of Hodgson JA reflects what was said by Kirby J (in dissent) in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 634. Having reviewed the alternative theories as to the effect of vitiation by denial of natural justice, and having referred to a number of decisions (including the passage to which I have referred from the decision of Aickin J in Forbes), Kirby J said at 634 [110] that “it is from the Act, rather than from broad expositions of the common law or large judicial statements about rival theories of invalidity of administrative decisions, that the answer … is to be found.”

90 In the present case, the decision that the Commissioner was required to consider was whether to present a certificate to this Court. He was obliged, before making that decision, to give Mr Walker an opportunity to show cause. He failed to do so.

91 The certificate was “presented” to this Court by being attached to the summons filed by the Commissioner. The act of filing the summons invoked, and the act of service of the summons upon Mr Walker engaged, the jurisdiction of this Court.

92 The Commissioner’s power to present a certificate is not finally conclusive of Mr Walker’s liability; it does not affect him in a final sense. That is because the decision, whether there has been a contempt of the Commission, is made by this Court. But, nonetheless, the act of presenting a certificate affected Mr Walker in a real and substantial way, because it required him, at his peril should he not do so and at his cost if he did, to defend the case thereby instituted. That is why the legislation requires persons in Mr Walker’s position to be given a measure of natural justice, by requiring them to be given an opportunity to show cause as to why a certificate should not be presented.

93 But it does not follow that proceedings commenced in a superior court of record are invalid, let alone a nullity, because the decision to commence them was invalidly taken. I cannot discern anything in the legislative scheme which has this effect: unlike the scheme, of an entirely different nature, considered by the Court of Appeal in Brodyn.

94 In the present case, it would have been open to the Court to act, had Mr Walker protested at an appropriate time about the defects that I have found to exist in the show cause procedure. Had he done so, the Court (for example) might have stayed the summons, until the Commissioner complied with his obligation to give Mr Walker an opportunity to show cause. But Mr Walker did not do so. In the events that happened, the result is that there has been a hearing on the merits.

95 There is no point to be served in staying the proceedings to require the Commissioner to allow Mr Walker an opportunity to show cause. The hearing has concluded. Mr Walker has put all that he wishes to put, in answer to the allegation of contempt, to this Court.

96 In the circumstances, I think, the public interest requires me to deal with the substance of the allegations that have been made. To stay the proceedings simply to enable the Commissioner to give Mr Walker the opportunity to show cause would not produce any benefit to Mr Walker. A remedy that would provide an effective benefit – for example, a permanent stay (as sought by Mr Walker) – would go well beyond the remedy that, at least on my view of things, might have been granted had the application been made at an appropriate time, shortly after the commencement of these proceedings. In circumstances where the application was not made when it should have been made, it seems scarcely appropriate to reward the person who should have, but did not, make it by granting greater relief now than would have been available then.

97 Mr McQuillen submitted that only a permanent stay would be appropriate, because Mr Walker had suffered irremediable prejudice through being required to defend the summons. In particular, he submitted, Mr Walker had suffered irremediable prejudice because (consequent upon my ruling that there was a case to answer) he had gone into the witness box, given evidence and been cross-examined on it. Thus, Mr McQuillen submitted, only a permanent stay (or even more sanguine relief, such as summary dismissal) could compensate Mr Walker for that prejudice. However, where a decision is quashed for denial of natural justice, it is quashed to vindicate the rights of the person who was denied natural justice, not to punish the person who denied it. Nor is it quashed as some sort of compensation for the loss of that which was denied. But in substance, Mr McQuillen’s submission seeks that the Commission be punished, by declining to hear its summons. That would do more than vindicate Mr Walker’s right, which was to have a real opportunity to show cause. Particularly where (as I have said) the problem has arisen in part because of Mr Walker’s failure to raise the denial of natural justice at an appropriate time, I do not think that the public interest would be served by granting a permanent stay, without determining the underlying issue that has been the subject of a full hearing.

98 There are two further but separate reasons why, as a matter of discretion, I would not grant the relief that Mr Walker seeks in consequence of what I have found to be the failure to offer him an opportunity to show cause. The first relates to the question of medical evidence. I think I can infer that, had the adjournment been granted, the medical evidence that would have been adduced is that which has since been provided by Dr Roberts through his report of 9 January 2005. (Dr Roberts is not the psychiatrist named by Mr Lakatos on 8 December 2004 as the person Mr Walker hoped to see; but given that no evidence has been adduced as to the change, or of what that other psychiatrist might have said, I think I can safely infer that Dr Roberts’ evidence puts the matter, as to the medical issues, at its highest from Mr Walker’s perspective.) For the reasons that I will give, Dr Roberts’ evidence does not give rise to a reasonable doubt in my mind as to Mr Walker’s guilt. It is hardly likely that it would have had some more beneficial (from Mr Walker’s perspective) effect on the Commissioner.

99 The second matter relates to the question of particulars. As I have said one of the functions of particulars, in the case of alleged contempt, is to enable the alleged contemnor to consider whether to seek to purge his contempt. In the present case, Mr Walker has continued to maintain that he is not guilty of contempt. He has done so even though the relevant particulars were given to him, by the medium of the certificate and its annexed transcript, when the summons was served. I think that I can infer from this conduct that it is unlikely that he would have sought to purge his contempt had he been given those particulars at an appropriate time before the Commissioner decided to present a certificate to this Court.

Conclusion on this point

100 Thus, and notwithstanding my criticisms of the Commissioner’s reasoning processes and my conclusion that he did not offer Mr Walker the required opportunity to show cause, I do not propose to stay permanently (or otherwise terminate without a decision on the merits) these proceedings.

Mr Walker’s evidence before the Commission

101 Unfortunately, to understand the way that the Commissioner put his case, it is necessary to set out verbatim substantial tracts of Mr Walker’s evidence before the Commission. It will be seen that parts of the transcript are emphasised by bold print. Those passages were thus identified by the Commissioner for the purpose of identifying them as allegedly false answers – in effect, by way of giving particulars of the charge of contempt.

Evidence on 6 December 2004

102 I start with those passages of the Commission’s transcript (CT) of 6 December 2004, where the general nature of the allegations was put to Mr Walker (CT 270.12-272.19):

“THE COMMISSIONER: I thought, Mr Rushton, I should put on the record the scope and purpose. I will tender the document, barcoded 6401755. The scope and purpose of the proceedings, which is continuing, is to investigate whether Sergeant Christopher John Laycock, or any other person associated with him, is currently or has been involved in criminal activity or serious police misconduct. Mr Rushton, I felt I should clear that up.

MR RUSHTON: Thank you, Commissioner.

Q. Having heard the scope and purpose repeated, can you tell us this: have you ever paid Laycock any money?
A. No.

Q. Has Laycock ever paid any money to you?
A. No, not that I can recall offhand.

Q. Has Laycock ever paid anyone any money in your presence?
A. No.

Q. Well, have you and Laycock ever taken money off any person or from any premises and divided it up between you?
A. When you say "from any premises", not that I can recall, no.

Q. Well, have you ever taken money off any person and divided it up between you?
A. As I said before, not that I can recall, no.

Q. Well, that's surely something you would recall if you'd done it, wouldn't you think?
A. I suppose so.

Q. I am not talking about some innocent conduct, I am talking about a criminal offence; you understand that, don't you?
A. I do.

Q. You say you have got no recollection of ever having done that?
A. No.

Q. When you say, "No", you deny --
A. I have no recollection.

Q. Do you deny it?
A. Beg your pardon?

Q. Do you deny it?
A. No, I don't deny it. I said I have no recollection.

Q. As a former police officer and private investigator, it would be extraordinary, would it not, if you had done such things but could not recall them?
A. Well, if you - from your point of view, it may be extraordinary. From my point of view, the way I feel right now, I cannot recall. I just told you that.

Q. You've been sitting through parts of the hearing, have you not?
A. I've heard it.

Q. You have heard the evidence?
A. I have looked at the transcripts.

Q. You would be aware, would you not, that certain serious allegations have been made against you?
A. Yes.

Q. And have you considered the allegations that have been made?
A. Yes.

Q. It's your evidence on oath, is it, that you have got no recollection of any of those events?
A. I don't recall anything specific in any of those events that have been mentioned in the transcripts.

Q. Of course, some of the incidents that are said to involve you arise, do they not, as a consequence of not only the evidence of Laycock, but the evidence of your own brother?

A. That's right.

Q. And you say you don't recall any of those too, do you?
A. That's right.

Q. You do understand, do you not, that if you give false or misleading evidence to the Commission you can end up serving a five-year jail term?
A. I do.

Q. You have given careful consideration to that question before giving your evidence?
A. I just told you, I don't recall any of those incidents. I think that's pretty clear, isn't it?

103 The evidence then turned to the Chiswick event. A video tape had been played during the evidence of Mr Laycock or Mr Brett Richard Walker (Mr Walker’s brother) at a time when Mr Walker was present. Mr Walker had witnessed what was shown on that videotape. It appears to have been accepted that the video tape showed Mr Walker, his brother and another individual (said to have been Mr Laycock) at the Chiswick premises (it will be recalled that this event occurred in July 2004). The relevant evidence reads as follows (CT 274.24-275.45):

“Q. Were you in the hearing room when a videotape was played which depicted you, your brother and another individual, who has been codenamed CB1, at premises at Chiswick?
A. Yes.

Q. Are you saying on your oath that you have no recollection of that event?
A. I'm saying to you that the depiction of those three people, as you described it, and one of them looked like me - what transpired then and there at that particular place, I can't - I don't remember.

Q. You said that one appeared to be you. Have you got some doubt that it is you?
A. Well, it looks like me.

Q. Laycock identified it as you, your brother identified it as you.
A. Mmm.

Q. Have you really got any doubt that it is?
A. Well, as I said to you, it looks like me. If I can't recall what happened - you know, you are asking me to give a definite yes or no it's me, I was there and I did something. The answer to that is no, I can't recall what I did, but, as I said, it does look like me.

Q. Yes. But you have no recollection, firstly, of the event; is that what you say?
A. I have a vague recollection of meeting those two people for coffee that day.

Q. Right.
A. That's about it.

Q. What was the purpose of meeting them, sir?

A. I don't - just we met periodically to discuss certain things, and I don't recall what that particular meeting was about.

Q. David Hopes was there too, was he not?
A. I am not sure, he may have been.

Q. Well, Dave Hopes was certainly at the premises at Chiswick that evening, was he not?
A. Well, I don't know. He may well have been.

Q. You travelled in the same van with him to the premises, didn't you?
A. I've just told you, I don't know anything about the detail of being there.

MR RUSHTON: Commissioner, just excuse me for a moment.

Q. You're currently seeking employment, are you not, in the hotel industry?
A. Yes.

Q. And is there anything, apart from lack of recollection, which is affecting your health, do you think, at the moment?
A. Well, my memory is - my memory, my overall memory, is bad and it does affect my work. Apart from that, physically I'm all right to work, if that's what you're getting at.

104 This evidence was followed by a substantial passage of evidence dealing with events that had happened prior to December 2003. Mr Walker had no apparent difficultly in recalling the events that were the subjects of those questions, and giving responsive answers to the questions. The events included:

· Details of a robbery at Thornleigh said to have taken place in about

October 1997;

· Events involving contact between Mr Walker and a Mr Jahangir

· Some business dealings, or attempted business dealings, between

105 Senior counsel assisting then returned to the Chiswick event. The questioning was introduced by playing a tape of an intercepted telephone conversation between Mr Walker (CW) and Mr Laycock (CL). Mr Walker discussed the difficulties that he was experiencing in obtaining someone else to do his shift. After some banter between the two, the following conversation occurred (“ui” means “unintelligible”):

“CL: Um, alright, that second length is sweet, it’s the right size, 10 metres.

CW: (ui) mate.

CL: Yeah.

CW: Yeah right.

CW: Alright.”

106 The conversation returned to the difficulties Mr Walker was experiencing in obtaining someone to work his shift. It concluded as follows:

“CL: Can you ah get back to me on it?

CW: Eh?

CL: Get back to me on it.

107 After that tape was played, Mr Walker gave further evidence as follows (CT 286.4-288.30):

“MR RUSHTON: Q. Did you recognise your voice and that of Laycock?
A. Yes.

Q. And, sir, what were you talking about?
A. Well, I don't know. No idea. But does the conversation go any longer than that?

Q. No.
A. Well, it doesn't tell me much. It is certainly me speaking.

Q. Well, one of the things you were saying was that you were battling to get someone to do your shift?
A. Mmm.

Q. And you had more than one bloke to ring?
A. Mmm.

Q. And then Laycock tells you that the second length is sweet, "It's the right size, 10 metres"?
A. Mmm. I have no idea what he was talking about.

Q. You see, that was the day where it's alleged that you, he and the others went off to Chiswick and stamped the witness known as CB1 for $10,000. You know that happened, don't you?
A. Well, you're telling me. You've told me. I now know it.

Q. But --
A. I had no idea that that was the date, no.

Q. But you recall, don't you, that on 22 July 2004 in the evening you went to the Chiswick property with Laycock, your brother, Hopes and John Dunks and a person there was stamped for $10,000 - you know that, don't you?
A. I know what I have read, yes.

Q. And you know that to be the fact, don't you?
A. No, I don't know that to be the fact. I've already told you, I cannot recall any detail about that.

Q. When do you say that you first started to lose your memory?
A. It's been going for about two years now, maybe three.

Q. Well, isn't it a little odd that you can remember matters which some people might regard as reasonably trivial, like bits of wood and the like, in great detail, but you can't remember something as serious and as recent as the 22 July stamping?
A. Can I answer that question?

Q. Yes.
A. Well, because the timber was on my mind constantly. It was a source of making very, very good money. I'd written certain things down and I had several phone calls. You're trying to - you're asking me to remember something that allegedly happened on a date.

Q. I'm asking you to recollect the obvious, and what you know to be the fact.
A. I've told you, I cannot recall any detail.

THE COMMISSIONER: Mr Rushton, could you ask that question again and just exclude the date? You have asked whether the witness can remember that on the 22nd. It seems to me that he may, quite properly, say that he doesn't recall the detail of the date.

MR RUSHTON: Q. Can you remember on any occasion going to a property at Chiswick with Laycock, Hopes, Dunk and your brother where the sum of $10,000 was taken from a person?
A. No, I cannot.

THE COMMISSIONER: Q. Mr Walker, I just want to remind you that earlier I spoke to you about the only two ways your evidence can be used against you here. Do you recollect that?
A. I'm aware of that, Commissioner.

Q. Do you remember me telling you that?
A. I remember. I'm well aware of that.

Q. Are you clear in your mind that contempt of this Commission is one of the things for which the evidence here can be used against you?
A. I am aware of that.

Q. Thank you. Are you also aware that, effectively, not answering questions is considered, or can be considered, to be contempt?
A. Yes.

THE COMMISSIONER: Yes, Mr Rushton.

THE WITNESS: Commissioner, can I just say this: I'm doing my best to answer the questions.

THE COMMISSIONER: Yes, Mr Rushton.

MR RUSHTON: Q. I suggest to you that's a lie.
A. Oh, well, you call it a lie - you can call it whatever you like.

Q. You remembered your dealings with Shagaev, didn't you, in some detail?
A. Of course I remembered it.

Q. But you can't remember that, in the middle of this year, you were out at Chiswick extorting money?
A. You - you talk about extorting money. I don't recall extorting money from anyone at Chiswick this year.

Q. Do you recall ever extorting money from any person --
A. No, I don't.

Q. -- with Laycock and others?

A. No.”

108 Thereafter, counsel assisting turned to an alleged extortion said to have occurred at Glebe on 10 November 2001. Mr Walker had no difficulty recalling that he was not involved in this (CT 288.32-.44):

“Q. On 10 November 2001, you extorted some cash and gold from the occupants of a property at Glebe Street, Glebe, did you not?
A. No, I did not.

Q. I suggest to you that you did so with Laycock and your brother?
A. I have - no, I did not.

109 Senior counsel assisting then turned to the Burwood event. It is now unnecessary to recount that evidence.

110 Senior counsel assisting then asked some further questions relating to dealings between Mr Walker and Mr Shagaev in relation to a “magic key”. He then returned first of all to the general question of extortion and, once more, to the Chiswick and Burwood events. The video tape to which I have referred in para [103] above was played and the following evidence was then given (CT 292.19-294.28):

“Q. Have you ever been involved in taking money from a person or from premises in company with Christopher Laycock and your brother?
A. I can't - I can't be definitive about that - definitive about that. I say no. I cannot recall being in that situation with them.

Q. And I've given you some examples --
A. Yes.

Q. -- to test your memory. I've suggested that such an event may have occurred at Glebe on 10 November 2001. You've got, do you say, no recollection of that?
A. Absolutely not.

Q. And you say you've got no recollection that, on 4 December 2003, you and your brother, with Laycock in the vicinity, took $23,500 out of a safe, having represented that you were both police officers carrying out a second firearms audit? You have got no recollection of that?
A. No, I do not.

Q. And, lastly - well, I won't come to lastly yet.

MR RUSHTON: Might the witness view exhibit 12AC, which is a surveillance video taken on 22 July 2004.

THE COMMISSIONER: Is this a confidential exhibit at this stage?

MR RUSHTON: It's AC, yes, but there is an edited version - 12B - which is for the public.

THE COMMISSIONER: Do you propose to play the confidential version at this stage?

MR RUSHTON: Yes.

THE COMMISSIONER: Thank you.

(Exhibit 12AC played)

MR RUSHTON: Q. Just pausing there, that video depicts, amongst others, you, does it not?
A. Yes.

Q. And you are carrying an attache case, are you not?
A. It appears that way, yes.

Q. What did you have in it?
A. I don't know - I have no idea.

Q. Some false police papers?
A. I don't know what was in it, if anything.

Q. Is it possible that you had within that attache case a false search warrant?
A. Oh, I doubt it. It is possible.

Q. Before we go any further, Mr Walker, do you want to offer the Commission any explanation at all as to why you were there on 22 July 2004 with the people that I've identified?
A. Well, as I said to you, this is unfolding as I sit here. I still don't recall details of what you're – what is unfolding. I can't add anything further than what I've already said.

Q. There is no further detail you can give us?
A. No.

MR RUSHTON: Commissioner, I don't propose to play that any further. It is my application that the matter be adjourned and that you invite the witness, through his counsel, to show reason tomorrow morning why he shouldn't be dealt with for contempt.

THE COMMISSIONER: Q. Mr Walker, counsel just asked you a question. Do you recall the question?
A. Yes.

Q. It is my view at this stage, my preliminary view, that that's not a real answer to the question and I now direct you to answer the question in an appropriate and effective way. You were asked a straightforward question and I'm directing you to answer it.
A. Well, can I have the question again?

THE ASSISTANT COMMISSIONER: Certainly. Mr Rushton?

MR RUSHTON: Q. Mr Walker, do you want to offer the Commission any explanation at all as to why you were there on 22 July 2004 with the people that I've identified?
A. The only explanation I can give is that I was there with my brother and Laycock. I don't know. I really cannot recall why I was there. I accept the fact that I was there, I was carrying that bag. I don't know - I have no idea what was transpiring or what was to transpire. I cannot tell you what transpired.

Q. Just so there is no confusion about my question, I will ask it in this form: why were you at those premises on 22 July 2004?

A. I - I don't know.”

111 As I have said, these proceedings were commenced on 10 December 2004. The Commission sought an urgent hearing. Mr Walker, who was represented by counsel, sought an adjournment. Sully J dealt with the application. It appears that the proceedings were adjourned on the basis that Mr Walker would co-operate fully with the Commission.

Evidence on 18 January 2005

112 Accordingly, the Commission recalled Mr Walker on 18 January 2005. He was asked questions about the Chiswick event. It is not overstating matters to say that his memory had improved markedly since 6 December 2004 (CT 359.46-361.17):

Q. Well, I want you to tell us whether you are aware of any involvement by Mr Laycock in criminal activity or serious police misconduct?
A. Yes, I am.

Q. Can you tell us - can you give us details, please?
A. The Chiswick matter that was mentioned on the last occasion -

Q. Yes.
A. -- is the matter that I'm thinking about at the moment. I was involved in that particular event.

Q. How did you come to be involved in it?
A. I'd had a discussion with Mr Laycock and others on the afternoon of this particular event.

Q. Yes.
A. There was - it was mentioned that the - that the person at Chiswick had moneys that were owed to two of the parties at that meeting and that he would have had a substantial amount of money in the unit that he occupied. He was a well-known drug dealer and possibly under some sort of surveillance by some authority. All of that was spoken about.

Q. Who was - I'm sorry, I cut you off?
A. It was agreed that Mr Walker - my brother - myself, Mr Laycock, would go to the unit and talk to this person. The other two gentlemen that have been mentioned in the transcripts would stay with the vehicle, because their identity was known to the person in the unit.

Q. Right. Was it part of this arrangement that you and Laycock and your brother would represent to the occupant of the unit that you were police officers?
A. The arrangement was that there would be a representation - not by my brother and myself, but it would have been by Mr Laycock.

Q. You, of course, are seen on the video carrying an attache case?
A. Yes.

Q. Was there anything in it?
A. No. That was specifically for the purpose of carrying money.

Q. You are aware, are you not, that the occupant of the unit claims that he was shown a search warrant?
A. I read that, yes. I am aware of that.

113 Senior counsel assisting then turned to the Glebe event said to have occurred on 10 November 2001, and again Mr Walker was able to deny (rather than not recollect) involvement. However, when pressed with this, he said that had no recollection, no memory (CT 364.13-.30):

“Q. And, indeed, he also says, as you would be aware, that on 10 November 2001 you and he and Laycock, with the assistance of Hopes, carried out a robbery of cash and gold from a property located at Glebe Street, Glebe?
A. Yes, I have read that.

Q. What do you say about that?
A. I deny totally being there. I have absolutely no knowledge of that whatsoever.

168 It does not appear from the evidence that Mr Walker attended Dr Menzies after 20 October 2004. Specifically, there is no evidence from Dr Menzies as to Mr Walker’s mental state on 6 December 2004, or as to Mr Walker’s fitness to give evidence, or ability to concentrate and recollect and give accurate evidence, on that day. It should be noted that Dr Menzies had commenced Mr Walker on anxiolytic medication on 7 October 2004 – two months before Mr Walker gave evidence. Dr Menzies, in his report of 20 October 2004, referred also to the fact that Mr Walker had commenced antidepressant medication which “might take up to three weeks … to have any effect on Mr Walker’s anxiety”.

169 It is a fair conclusion from Dr Menzies’ evidence that the anxiolytic and antidepressant medications prescribed for Mr Walker were likely to have taken effect by 6 December 2004. That conclusion is supported by statements of Dr Casamento and Dr Westmore. The effect of Mr Walker’s evidence, however, is that the medication had not taken effect – so as to alleviate his anxiety and depression – by 6 December 2004.

Dr Girgis

170 Dr Girgis describes himself as a consultant physician in the field of neuropsychiatry. He furnished a report dated 3 July 1998, apparently relating to Mr Walker’s application for discharge from the police service on medical grounds. Dr Girgis concluded that when seen “a few months” before 3 July 1998, his “mental status examination did indeed reveal the major features of post traumatic stress disorder, with severe depression and anxious mood as a result of work related stress”. Dr Girgis commenced therapy, and added to the medication then being taken by Mr Walker. He “hoped that all the abovementioned will help reduce“ Mr Walker’s severe anxiety state and “particularly the extreme agitation”; but noted that Mr Walker “does not seem to have responded well”. He concluded that Mr Walker was not fit for work, with a guarded prognosis, and would need medications and special counselling for a long time.

171 Despite that conclusion, it does not appear that Mr Walker continued with the medication or the therapy.

Dr Westmore

172 Dr Westmore is a consultant psychiatrist. He examined Mr Walker on 5 November 2004, at the request of the Commission. Dr Westmore had been provided with a substantial body of material, including the reports to which I have referred and, I think, a report of Dr H Gapper (a New South Wales Government medical officer who reported on examinations conducted and reports provided by the police medical officer, and a consultant psychiatrist in connection with Mr Walker’s application for discharge on medical grounds).

173 Mr Walker gave Dr Westmore a detailed history, which was recounted in a report dated 8 November 2004. (That report was supplemented by a further report dated 29 November 2004, clarifying and expanding on some aspects of the history.)

174 Mr Walker complained to Dr Westmore of “extreme anxiety and agitation”, inability to cope, poor memory, “very bad” sleep patterns and verbally abusive behaviour. He confirmed that he had stopped treatment with Dr Girgis, and had stopped taking the medication prescribed by Dr Girgis and others. He said that he was “always in a state of anxiety”, unable to relax, and becoming temperamental. He complained of nightmares, loss of appetite and libido, and thoughts of self-harm.

175 Dr Westmore said that he could not identify any psychotic symptoms and that Mr Walker “presented as being an alert and attentive historian”.

176 Dr Westmore concluded that “Mr Walker has suffered psychological symptoms in response to the significant stressors he is experiencing at this time.” Those “stressors” included the understanding that he was being investigated by the Commission; perhaps the allegations that were made involving him by others in the Commission; and the knowledge that he was required to give evidence to the Commission.

177 Dr Westmore said that in his view Mr Walker was able to give evidence, and that his fitness to do so might improve as his medication took effect:

“I do not know what the “test” of his fitness should be but it is my opinion that if the Presser criteria were used, or if any of the recent modifications to the test of fitness were to be used when considering his ability to give evidence and appear before the commission, then this man would be considered “fit”.

I believe he would be able to give his account in relation to any allegations against him, he would be able to follow the proceedings and provide his legal representative with ongoing instructions. I would accept that depression is often associated with impaired or compromised levels of attention and concentration, but I do not believe there is evidence to indicate that from a cognitive or organic perspective his “fitness” would be significantly affected.

I do note that he has only been on antidepressants now for one week and those medications may take up to a month to start to impact in a positive way on his mood state. If the commission resumes its inquiry into Mr Walker in the new year then by that time his mental state may also have had the benefit of several weeks of antidepressants and that may further increase his “fitness”.”

178 The reference to “the Presser criteria” was unexplained in Dr Westmore’s report. The Crown Advocate submitted that it was a reference to the decision of Smith J in R v Presser [1958] VR 45 (in particular, the passage at 48, setting out the relevant considerations, that was approved by the High Court of Australia in Kesavarajah v The Queen (1994) 181 CLR 230). He supported this submission by written submissions (delivered after these reasons had been prepared in draft) in which he referred to a number of decisions of the Court of Criminal Appeal. He submitted that those decisions showed and explained Dr Westmore’s use of “the Presser criteria”. The decisions include R v WRC (2003) 59 NSWLR 273 (in particular at 282 [57]) and R v Mailes (2001) 53 NSWLR 251 (in particular at 258-259 [36]). Those decisions do support the proposition, which independently I had concluded should be accepted, that Dr Westmore intended to refer to the decision of Smith J in Presser when he used the phrase “the Presser criteria”. On that basis, the criteria by which Dr Westmore considered the question of fitness are those stated by Smith J as follows:

“He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

179 There is thus a conflict between Dr Menzies and Dr Westmore on the question of Mr Walker’s prospective “fitness”. The conflict may not be capable of explanation by the different times at which they expressed their opinions. However, it is clear that both of them thought that Mr Walker could be fit to give evidence on 6 December. In Dr Menzies’ case, this would depend on the medication’s taking effect. In Dr Westmore’s case, the medication was likely to increase, rather than bring about, fitness.

Dr Roberts

180 Dr Roberts too is a consultant psychiatrist. He saw Mr Walker on 17 December 2004, and provided a report dated 9 January 2005.

181 Dr Roberts set out an extensive history obtained from Mr Walker. As part of the interview process, he “attempted to elicit from Mr Walker evidence of physiological concomitants of anxiety namely such symptomatology as would be present in someone who was suffering from significantly heightened anxiety regardless of cause.” This was done in an attempt to understand whether Mr Walker suffered from reactive neurosis; as Dr Roberts put it, “[i]f heightened anxiety of inappropriate degree cannot be demonstrated no reactive state can be diagnosed.”

182 Unfortunately, having indicated the issue, Dr Roberts did not address it. To put it another way, he did not comment whether Mr Walker exhibited “heightened anxiety to inappropriate degree”. He commented, of the symptoms elicited from Mr Walker:

mild

moderate

severe

would be suggestive of moderate to severe anxiety in response to external stressors that would cause discomfort and could produce the transient cognitive impairment described

(emphasis in original)

183 Dr Roberts referred to the medication that had been prescribed for Mr Walker: Xanax (an anxiolytic) and Aropax (an antidepressant). He noted that the side effects of Xanax were stated to include “transient amnesia or memory impairment” in about 5.5% of cases, and that the side effects of Aropax were said to include “nervousness, anxiety, agitation, central nervous system stimulation, confusion and impaired concentration” in about 1% of cases.

184 In summary, Dr Roberts referred to Mr Walker’s “history of anxiety and depression” (a history obtained from Mr Walker). He commented:

under stress

In addition to the circumstances of pre-existing condition, current stressors there exists the potential of medication to further compound cognitive function.

Ultimately the degree to which Mr Walker is incapable of remembering matters of fact is something known only to himself.

From the psychiatric viewpoint I could conceive of circumstances where due to a combination of factors including the stress of appearing before the Commission plus a pre-existing illness plus a reactive state and medication, could transiently compound recollection of matters of fact.”

(emphasis in original)

185 Ultimately, taking into account all the matters to which he had referred, Dr Roberts did not “consider that such could be productive of total amnesia in regard to relevant matters of fact that were put to Mr Walker but potentially could give rise due to a combination of factors, to transient difficulties in recollection.” To look ahead: Mr Walker’s professed lack of recollection on 6 December 2004 of the Chiswick event or anything to do with it is more akin to “total amnesia” than to “transient difficulties in recollection”.

186 Dr Roberts expressed the view – justified by events – that it was likely that Mr Walker “should … be able to respond in a meaningful manner to the questions put to him” when next he appeared before the Commission; but that “[t]he probability that he had had previous difficulties in recollection would be 5% or less.”

187 This last conclusion – relating to the possibility of “previous difficulties in recollection” - was put in the abstract. Dr Roberts was given an edited transcript of Mr Walker’s evidence before the Commission. But Dr Roberts did not express his opinion in the context of, or by reference to the likelihood of, Mr Walker’s alleged total lack of recollection of events as suggested in that transcript, some of which events had occurred less than six months earlier, in a context where the allegations relating to those events were “shocking” to him. Nor did he express his opinion by reference to the differential difficulties in recollection that were manifested in Mr Walker’s evidence on 6 December 2004. Thus, although Dr Roberts was not called for cross-examination and those matters were not put to him (and, a fortiori, I did not have the benefit of his explanation or evidence in relation to them), I regard his estimation of a percentage likelihood of impairment of recollection as hypothetical, rather than as having any real relationship to the specific matters that were the foundation of the Commissioner’s case against Mr Walker.

Analysis

188 As Dr Roberts said, the only person who knows whether Mr Walker in truth, as he said, lacked recollection of the Burwood and Chiswick events on 6 December 2004 is Mr Walker. Mr Walker has asserted that his lack of recollection was genuine. The Commissioner says that it was not. The question for me is whether I am able to conclude, beyond reasonable doubt, that it was not. It is not for Mr Walker to persuade me that it was.

189 The three essential matters on which the Commissioner relied were:

(1) The inherent implausibility of the proposition that a person in Mr Walker’s position would have no recollection at all of the matters put to him (in circumstances where, it was submitted, the effect of his evidence was that he had no recollection at all of those matters).

(2) The contrast between his total lack of recollection of the Chiswick event on the one hand and his clear recollection of other events, most of which predated the Chiswick event, on the other.

190 The Commissioner relied also on the telephone conversation between Mr Roberts and his wife after he had given evidence on 6 December 2004. I think it is fair to say that the Commissioner placed more weight on that telephone conversation than I have done in this restatement of the Commissioner’s case. For the reasons that I indicated in argument during the course of the “no case” application, I do not regard the telephone conversation as sufficient in itself to demonstrate guilt. Having said that, I accept that it is consistent with and supportive of the Commissioner’s case that on 6 December 2004 Mr Walker intended to give, gave and knew that he had given false evidence when he asserted lack of any recollection of the Chiswick event.

Inherent implausibility

191 To my mind, the staring point – and the key issue – is the inherent implausibility of the asserted lack of recollection. Mr Walker knew, before he gave evidence, that his brother and Mr Laycock had given evidence, the effect of which was that Mr Walker had been engaged with them in serious criminal and corrupt activity. He was shocked by that evidence. But notwithstanding his shock, he knew that he would be questioned upon those allegations when he gave evidence.

192 It is implausible – more accurately, incredible - that anyone (to whom serious criminal activity was not a routine and everyday occurrence) could have professed the total lack of recollection asserted by Mr Walker when allegations of such activity were put to him: both as to the general allegation and as to the specific instances. Thus, unless there were some explanation for the implausibility, that of itself would lead to the conclusion that the evidence of lack of recollection was false, and knowingly so.

193 A particularly striking example of the inherent incredibility of Mr Walker’s evidence is to be found in the passage that I have set out at para [103] above. There is no doubt that the video tape referred to in that passage of evidence showed Mr Walker, among others, in the basement of the building in which the Chiswick premises were located. That was plain when the video tape was played in Court on 20 June 2006; and Mr McQuillen did not submit otherwise. Even if Mr Walker had had some difficulty of recollection on 8 December 2004, his memory must have been jogged by seeing what was depicted by the video tape. His continued assertion of lack of recollection, and his failure to accept that he was depicted on the video tape, are incapable (absent some explanation) of belief.

194 The implausibility, or incredibility, of Mr Walker’s position is in my view compounded not only by the many noteworthy features of the Chiswick event that were put to and acknowledged by him in cross-examination, but by the very circumstance that he was implicated in that incident through evidence given by his brother and Mr Laycock. Indeed, on 6 December 2004, senior counsel assisting the Commission confronted Mr Walker with his brother’s evidence; Mr Walker raised the highly implausible excuse that his brother may have been confused. He refused to accept the obvious proposition that such confusion was highly unlikely (CT 289.5-.13):

“Q. Can you advance any reason at all to the Commission why your brother might finger you for those two jobs if you didn't do them?
A. Well, I can't answer for my brother. He obviously believes what he said to be the truth. He may have me confused with someone else.

195 As I have said, Mr Walker knew before 6 December 2004 of the evidence from his brother and Mr Laycock that implicated him in the Chiswick event. He knew that he would be questioned about that event, among other things, on 6 December 2004. He was “shocked” to be implicated. All of those matters, together with the matters acknowledged by Mr Walker in cross-examination as to the nature of the Chiswick event, make it more rather than less likely that he would have at least some recollection when questioned about the Chiswick event on 6 December 2004. Hesitation, confusion and perhaps some difficulty in recollection of detail might be expected – particularly early in the course of questioning. Total amnesia (which in substance is the correct characterisation of Mr Walker’s professed lack of recollection) is so unlikely as to be, absent some explanation, incapable of acceptance.

196 The only explanation offered is that based on Mr Walker’s evidence of stress and anxiety, and on the medical evidence. I can accept that the hearing in the Commission was one that caused Mr Walker extreme stress and anxiety: whether, as he says, he was innocent of the activity alleged, or not. I accept that the making of the allegations, and the questions based upon them, were productive of extreme stress and anxiety: again, whether Mr Walker were innocent of the conduct alleged, or not. But I cannot accept that, absent some additional factor, the stress and anxiety so caused (bearing in mind that it would have been building up at least from the time Mr Walker became aware of the evidence implicating him) could, of itself, cause him to have no recollection whatsoever of the Chiswick event or of the details of it that were put to him.

197 In this context, it is necessary to bear in mind that the Chiswick event did occur; and that it had occurred only five months before Mr Walker gave evidence on 6 December 2004. For all the reasons acknowledged by Mr Walker in cross-examination, it was a highly unusual transaction. Although he was “shocked” by the allegations of involvement, it is clear that he understood the allegations to be that he had been knowingly involved in corrupt activity with a serving police officer. All the circumstances of the Chiswick event (including, as I hope I have made clear, all the circumstances that Mr Walker remembered on 18 January 2005 and in his evidence before me) might be thought to have made it something that would live in his memory.

198 I accept that human memory is fallible: that is demonstrated every day in the courts. But I do not accept that the fallibility of recollection is such that a person in Mr Walker’s position would have no recollection at all of the matters put to him. On the contrary, I think, common experience is that the fallibility of recollection is likely to extend to the quotidian, the routine, the mundane. Events that are startling or “shocking” are of their very nature more likely to stick in the memory. Although the detail of such events may be lost with the passage of time, the fact of their occurrence, and their broad outline or general nature, will not.

Effect of the medical evidence

199 As I have noted, there is some conflict in the medical evidence as to the ability of Mr Walker to recall, and give instructions in relation to, the matters that were to be put to him. But the only medical evidence of possible impairment in those functions comes from Dr Roberts. Dr Roberts had not seen Mr Walker before the events in question. His assessment was based very substantially on Mr Walker’s history. He was not prepared to conclude that Mr Walker might suffer from anything more than “transient difficulties in recollection”. He did not accept that Mr Walker suffered from “total amnesia in regard to relevant matters of fact, that were put to Mr Walker”.

200 As I have said, Dr Roberts was given an edited transcript of the evidence given by Mr Walker on 6 December 2004. The only reference that Dr Roberts makes to this evidence is in the following terms:

“I note that Mr Walker in response to a variety of questions indicated that he had no recollection. I refer to the edited Transcript of Evidence on 6th December 2004, line (3) question “Are you saying on oath that you have no recollection of that event” and I note the reply given by Mr Walker.”

201 That is a reference to the question and answer at CT 274.30-.35 (following the reference to the video tape to which I have referred in para [102] above). Although the question and answer to which Dr Roberts referred forms part of the passage set out in para [103] above, I repeat it here:

202 It is apparent from the way that Dr Roberts refers to this that he is expressing no view as to the likelihood that Mr Walker did not, as he professed, remember the events shown on that video tape. It is unclear whether Dr Roberts regarded that particular answer as a manifestation of a transient difficulty in recollection or as an example of total amnesia. The former might be surprising in circumstances where, as Mr Walker recognised, the video tape identified a person who looked like him, and who had been identified as such.

203 Dr Roberts was not asked to opine on the consistent and repeated failures of recollection that were features of Mr Walker’s evidence in relation to the Chiswick event on 6 December 2004. As a matter of language, I would not describe that evidence as exhibiting “transient difficulties in recollection”. Sufficient details were put to Mr Walker, and with sufficient repetition, to jog a mind afflicted by any such “transient difficulties”. I therefore do not accept Dr Roberts’ opinion of possible “transient difficulties in recollection” as capable of explaining the total failure of recollection, as to those events and as to the underlying assertion of involvement in serious criminal and corrupt activity, on 6 December 2004.

204 For essentially, the same reasons, I do not accept Dr Roberts’ assessment of a 5% or less “probability [of] previous difficulties in recollection” as relevant to, or constituting a description of, the extensive – indeed almost total - pattern of non recollection exhibited in Mr Walker’s evidence in relation to those topics on 6 December 2004.

205 In this context, I note that neither Dr Menzies nor Dr Westmore referred to the possibility that Mr Walker’s medications might impair his recollection or his ability to give truthful and accurate evidence. On the contrary, both seemed to think that the medications were likely to improve the prospect that he could concentrate, and thereby give truthful and accurate evidence.

206 Thus, whilst I accept Dr Roberts’ opinions (including as to the possible effects of the medication) as a matter of theoretical possibility, I do not regard those opinions as in any way undermining, or detracting from, the inference that I think is clearly available from the inherent incredibility of the impugned aspects of Mr Walker’s evidence. Dr Roberts’ opinions are not in any way related to the specific evidence given by Mr Walker in relation to the Chiswick event, or to the differential memory problems apparent from the transcript of his evidence of 6 December 2004; and they are not opinions that are shared by Dr Menzies or Dr Westmore. Nor do I regard the opinions of Dr Casamento and Dr Girgis as having any real impact on my assessment of this problem. In the case of Dr Casamento, his evidence and observations predate the evidence and observations of the three specialist psychiatrists to whom I have referred; and in the case of Dr Girgis, his evidence relates to a state of affairs more than six years before the events in question.

207 I therefore do not accept the medical evidence, viewed in totality, as providing any explanation that could raise a reasonable doubt as to the inference to be drawn from the otherwise incredible evidence of lack of recollection. In my view, the very nature of that evidence, and the absence of any apparent explanation of what is otherwise utterly incredible, is sufficient to demonstrate that Mr Walker’s assertions of lack of recollection in relation to the Chiswick event were false, and knowingly so.

Differential powers of recollection

208 In my view, the conclusion that I have reached based on the inherent incredibility of Mr Walker’s asserted lack of recollection in relation to the Chiswick event is supported both by his clear recollection (on 6 December 2004) of other events and, in relation to the Chiswick event by his clear recollection of that event in his evidence before the Commission on 18 January 2005 and before me on 21 June 2006.

209 As to the former (differential powers of recollection on 6 December 2004): the reasons given by Mr Walker for his ability to recall, during his examination on 6 December 2004, events other than the Chiswick event may be accepted. In substance, he said, he had good reason to recall the relevant events (and I have referred to those aspects of his evidence at paras [104], [108] and [110] above). But exactly the same comment applies to the Chiswick event. Indeed, one might have thought that for a former police officer, “shocking” allegations of serious criminal and corrupt activity, involving the extortion or attempted extortion of a substantial sum of money on an occasion only five months earlier, might be thought to be even more memorable. Thus, if (contrary to Mr Walker’s evidence) those events had occurred, one would expect him to have a clear recollection of them, for precisely the same reasons as (he said) he had a clear recollection of other events. Equally, if one accepts Mr Walker’s evidence that he had not been involved, one would expect him to be able to say so clearly and without prevarication.

210 If the matters had been touched on only once, and generally, then the evidence of confusion and stress and anxiety might provide some explanation. But in circumstances where they were dealt with in the way that I have outlined – first generally, and then specifically, with detail – that explanation is in my view unavailable.

211 Particularly in circumstances where Mr Walker was reminded more than once, and in forceful terms, of the unacceptability of “no recollection” answers, and where he persisted in those answers when the relevant matters were put to him thereafter, I think that the differential power of recollection that he exhibited on 6 December 2004 is of itself, and quite apart from the inherent incredibility of the asserted lack of recollection of the relevant events, a sufficient basis to find beyond reasonable doubt that his denial of recollection was false.

Recovery of memory on 18 January 2005

212 When one adds to this the improvement in his recollection, as to the Chiswick event, less than four weeks later (on 18 January 2005), the conclusion is reinforced. I simply do not accept that a person having the recollection that Mr Walker displayed of the Chiswick event on 18 January 2005 could have had the complete lack of recollection of that event to which he testified on 6 December 2004. Nor, for the reasons that I have given in paras [203] to [206] above, do I regard the psychiatric evidence – in particular, that of Dr Roberts – as raising any reasonable basis for doubting what I have just said. Thus, I regard the contrast between his evidence on 6 December 2004 and 18 January 2005 as a third and independent reason for concluding that his asserted lack of recollection on 6 December 2004 was false.

The telephone conversation of 6 December 2004

213 I do not regard the telephone conversation as conclusive, in the sense that I would not rely upon it alone as showing beyond reasonable doubt that the relevant evidence was false, and knowingly and intentionally so. But it does seem to me to be the fair – indeed, I would have thought, almost inevitable - inference from that conversation that Mr Walker was asserting that because he was of “the old school” he was not prepared to give evidence that might be seen as implicating himself or his “mates” in criminal or corrupt activity. In other words, I think, it is the proper inference from that conversation that Mr Walker was indicating that, notwithstanding the protections afforded to him by the legislation in relation to self-incrimination, which were explained to him by the Commissioner and which he understood, he had chosen to take and maintain the position that he did in relation to the Chiswick incident.

214 It is in my view significant that Mr Walker’s comments followed his wife’s reference to the likelihood of his being charged with perjury. In context, I think, the telephone conversation shows that Mr Walker was determined to persist, for the reasons that he had given, in the attitude (of non recollection) displayed in his evidence earlier that day. The telephone conversation is thus entirely consistent with the inferences that I think can be drawn from that evidence based on its inherent incredibility and on the differential powers of recollection.

Mr Walker’s credibility

215 I accept, as I hope I have made clear, that Mr Walker bears no onus of proof. However, in circumstances where he has given evidence, and where that evidence is relied upon (as it was) to support the “defence” of lack of recollection by reason of state of mind, I must assess the credibility of the evidence that was given and that is relied upon.

216 There were unsatisfactory features in Mr Walker’s evidence. I refer in particular to:

· what I have said in paras [153] and [154];

· his resort before me to lack of recollection (para [159] above);

· his evidence as to whether the Chiswick event or its underlying transactions should be reported to the Police Integrity Commission; and

· the fact that he did not do so (para [160] above), when clearly he must have realised that he should have done so.

217 I do not regard his evidence as credible. I had the very clear impression that Mr Walker, having committed himself to a story, was determined to stick to it. His evidence did not address (indeed, he shied away from) the manifest implausibility in his asserted lack of recollection. His evidence in relation to what I regard as the plain meaning of the telephone conversation with his wife after the hearing on 6 December 2004 is, to put it neutrally, unworthy of belief. When one adds those considerations to the matters I have mentioned in the previous paragraph, I do not accept his evidence as raising any reasonable doubt in relation to the conclusions that I have reached.

Other matters

218 I acknowledge that there are some troubling aspects of this case. One is that on 18 January 2005, when Mr Walker gave detailed evidence relating to the Chiswick event, he maintained his denial of recollection of the Burwood event. But whilst that could indicate that his denial of recollection in relation to the Burwood event on 6 December 2004 was not knowingly false (or, at least, might raise at least a reasonable doubt on that issue), it does not detract from the inferences that I have said can be drawn, and that I do draw, in relation to his evidence as to the Chiswick event.

219 The second matter relates to the apparent lack of motive. It was made clear to Mr Walker, and he acknowledged that he understood, that in the events that happened, any admission that he made of involvement in criminal or corrupt activity could not be used in evidence against him (except in proceedings for perjury or contempt in relation to that evidence). Further, it is his case – as is apparent from his evidence before me – that in fact he was not involved in criminal or corrupt activity. On that basis, it is legitimate to ask why he repeatedly professed to deny recollection of that which he would be expected to recall.

220 Mr McQuillen did not rely in submissions on any lack of motive. Nonetheless, I took the matter up with the Crown Advocate. He submitted that if the case were otherwise clear, then the fact that no motive could be found for what by hypothesis would be criminal conduct was irrelevant to finding, beyond reasonable doubt, that such conduct had occurred. I accept that this must be so in a case based on direct evidence. But in a case based on circumstantial evidence and inference, it may be legitimate to wonder why a person would have engaged in conduct of the kind alleged; and, if no obvious explanation presents itself, to conclude that there may be some doubt.

221 To a considerable extent, an enquiry into motive is no more than speculation. However, there are a number of possible answers to the question that I posed in para [219] above. One obvious answer is that his evidence before me, of non involvement, might be false. Another answer (of particular significance if the first answer be regarded as open) might flow from what he said to his wife in the telephone conversation after giving evidence on 6 December 2004: see para [213] above.

222 Or it may be, to take another hypothesis, that Mr Walker believed that the Commission had sufficient evidence of his involvement in the activities under investigation, such that his denial of involvement would be seen as false swearing. On this hypothesis (which was not put to Mr Walker, and which must therefore remain no more than a matter of hypothesis) one could understand that he would assert lack of recollection, so as to avoid what might be thought to be the likelihood of prosecution for perjury. But, in circumstances where an answer that implicated him could not of itself be used to convict him, this possible explanation does not offer a complete rationalisation.

223 Another possible explanation is that Mr Walker was unwilling to give evidence that would expose the involvement of those who had retained him to collect the debt (the occasion of the visit to the Chiswick premises) in what, prima facie, appeared to be criminal conduct.

224 There may be other explanations; indeed, the explanation may lie in a combination of factors. The reality, I suspect, is that Mr Walker felt beleaguered, deserted and alone; and in those circumstances, notwithstanding that apparently he had been abandoned by others, he decided, consistent with his membership of the “old school”, that ignorance was likely to be the best of extremely uncertain defences. In addition, and notwithstanding his denial, I do think that Mr Walker was concerned by the possible impact on his private investigator’s licence of his failure to communicate to the police his understanding in relation to the drug deal that, on his evidence, lay behind the Chiswick event (see para [161] above).

The relevant evidence was intentionally false

225 I am therefore satisfied beyond reasonable doubt that Mr Walker’s denial, on 6 December 2004, of any recollection in relation to the Chiswick event was false, in the sense that it was knowingly untruthful. In other words, I find, Mr Walker knowingly gave false answers when he asserted that he had no recollection of the Chiswick event, or of the details of it that were put to him, in the context where, by that answer, it was clear that he was asserting that he had no recollection either way. Notwithstanding the gravity of the allegation, and notwithstanding the need to exercise stringent care in concluding on circumstantial grounds that evidence given on oath was false (in the sense of untrue and known and intended to be so), I find that Mr Walker’s evidence on 6 December 2004 in relation to the Chiswick event was, in the sense that I have used the word, false.

226 In those circumstances it follows (and Mr McQuillen did not submit otherwise) that, in the words of Barwick CJ in Keeley (143 CLR at 169), Mr Walker’s “false assertion that he could not remember … was a refusal by prevarication to answer the questions.” Equally, in the words of Learned Hand J in Appel (211 Fed Rep at 416), adopted by Stephen J in Keeley (143 CLR at 172), I am satisfied beyond reasonable doubt that Mr Walker was “lying so as to fob off inquiry”.

227 For the reasons given by Mason and Aickin JJ in Keeley (143 CLR at 178), the persistent assertion “in relation to [the Chiswick event] that he cannot recollect [it] when there is every reason for thinking that he would recall [it]” leads to the conclusion that Mr Walker was “not only giving false answers but … refusing to answer the questions put to him” so that he was “refusing to answer”, thereby taking matters “across the borderline that separates mere perjury from contempt”.

228 I acknowledge that, as I have said, the facts in this case are quite unlike those in Keeley. But the underlying question is the same. That is why I regard the test laid down in Keeley, and the way that its application was explained in that case, as relevant to this case.

229 In the circumstances, where the Commissioner was enquiring into criminal or corrupt conduct on the part of Mr Laycock, in which conduct Mr Walker was said to have been involved, it is inevitable, once one concludes (as I have done) that the relevant evidence of Mr Walker was false, that one must also conclude that the actual or inevitable intention or consequence of those false answers was to frustrate or obstruct the inquiry of the Commission.

230 Speculation can only go a little way. The question is, whether the doubt as to motive is sufficient to raise a reasonable doubt as to guilt. I do not think that it is, particularly in circumstances where the doubt as to motive is, on one view of events, resolved by one interpretation of Mr Walker’s comments to his wife after giving the evidence in question.

Conclusion

231 For these reasons, I find that Mr Walker is guilty of contempt of the Commission in that on 6 December 2004, in relation to a number of questions concerning his involvement in the Chiswick event, in which he was alleged to have been a participant, Mr Walker by his answers falsely asserted an inability to recollect that event, so that he must be taken thereby to have refused or otherwise to have failed to answer the relevant questions.

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Citations

Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696

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Purcell v IDN24 [2025] FCA 215

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Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964

Purcell v IDN24 [2025] FCA 215

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11

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Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 645

Hocking v Bell [1945] HCA 16

CITATION:	Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696
HEARING DATE(S):	20/06/2006, 21/06/2006, 27/06/2006, 28/06/2006 and supplementary written submissions 11/07/2006
JUDGMENT DATE :	14 July 2006
JURISDICTION:	Administrative Law List
JUDGMENT OF:	McDougall J at 1
DECISION:	See para [231] of judgment
CATCHWORDS:	CONTEMPT- of Police Integrity Commission - where witness falsely asserts lack of recollection - where witness not provided with particulars - where application for adjournment to put on medical evidence refused on incorrect and irrelevant grounds - whether witness denied opportunity to show cause - where hearing on the merits has now occurred - whether proceedings should be stayed permanently - whether lack of recollection was feigned, deliberately false and intended to or did obstruct Commission’s inquiry - whether witness is guilty of contempt of Commission under s 118(1) (h) of Police Integrity Commission Act 1996
LEGISLATION CITED:	Police Integrity Commission Act 1996
CASES CITED:	Coward v Stapleton (1953) 90 CLR 573 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162 Kesavarajah v The Queen (1994) 181 CLR 230 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45 R v WRC (2003) 59 NSWLR 273 United States v Appel (1913) 211 Fed Rep 495
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:	M M O'Brien, Commission Solicitor (Plaintiff)

Paragraph number
The legislative scheme	2
The alleged contempt and the relief sought	12
Outline of the Commissioner’s case	15
Outline of Mr Walker’s case	20
The relevant principles	26
A challenge to the legitimacy of the proceedings	45
The events of 8 December 2004	47
An erroneous approach to the adjournment application	63
The debate over particulars	68
A further error in approach	71
Unseemly haste	76
The role of s 120	79
Opportunity to show cause denied	84
Consequences	86
Conclusion on this point	100
Mr Walker’s evidence before the Commission	101
Evidence on 6 December 2004	102
Evidence on 18 January 2005	112
Warnings	116
References to lack of memory	121
The telephone conversation	126
Mr Walker’s evidence before this Court	133
The medical evidence	164
Dr Casamento	165
Dr Menzies	166
Dr Girgis	170
Dr Westmore	172
Dr Roberts	180
Analysis	188
Inherent implausibility	191
Effect of the medical evidence	199
Differential powers of recollection	208
Recovery of memory on 18 January 2005	212
The telephone conversation of 6 December 2004	213
Mr Walker’s credibility	215
Other matters	218
The relevant evidence was intentionally false	225
Conclusion	231