Corruption and Crime Commission v Allbeury

[2010] WASC 399

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CORRUPTION AND CRIME COMMISSION -v- ALLBEURY [2010] WASC 399

CORAM:   MARTIN CJ

HEARD:   13 DECEMBER 2010

DELIVERED          :   13 DECEMBER 2010

PUBLISHED           :  21 DECEMBER 2010

FILE NO/S:   CIV 2870 of 2010

BETWEEN:   CORRUPTION AND CRIME COMMISSION

Applicant

AND

TRISTAN ROGER ALLBEURY
Contemnor

Catchwords:

Contempt of Corruption and Crime Commission - Section 163 of the Corruption and Crime Commission Act 2003 (WA) - Failing to answer questions relevant to the Commission's investigation - Insulting the Commission while the Commission was conducting an examination - Sufficiency of particulars - Meaning of 'insult' - Certificate issued by the Commissioner of the Corruption and Crime Commission - Extraordinary powers finding - Related matter: Corruption and Crime Commission v Wallace [2010] WASC 390

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 96, s 160, s 162, s 163

Result:

Contempt has been established
Contemnor guilty of contempt
Sentencing adjourned
Contemnor detained in custody

Category:    A

Representation:

Counsel:

Applicant:     Mr D W L Renton & Ms T Chung

Contemnor:     Mr S Vandongen SC

Solicitors:

Applicant:     Corruption and Crime Commission of Western Australia

Contemnor:     Alana Padmanabham

Case(s) referred to in judgment(s):

Corruption and Crime Commission v Wallace [2010] WASC 390

MARTIN CJ:  (This judgment was delivered extemporaneously on 13 December 2010 and has been edited from the transcript.)

1. In this case there is a motion before the court brought by the Corruption and Crime Commission (the Commission) for an order that Tristan Roger Allbeury stand committed to a term of imprisonment or be fined for the following alleged contempts of the Commission. That Mr Allbeury, having been served with a summons under s 96 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) requiring him to attend and give evidence, failed to answer questions relevant to the investigation that the Commission required him to answer on 12 November 2010 contrary to s 160(1)(b) of the CCC Act; and insulted the Commission while the Commission was conducting an examination contrary to s 162(1)(a) of the CCC Act, particulars of which are set out in a certificate presented by the Commission to the court pursuant to s 163 of the CCC Act.

2. The grounds of the application are identified in the motion. They are that on 9 November 2010, Mr Allbeury was served with a summons under s 96 of the CCC Act, that whilst giving evidence at the Commission failed to answer questions that the Commission required him to answer, and that those questions were relevant to the Commission's investigation, and also that he insulted the Commission while the Commission was conducting an examination.

3. The motion that has been brought gives rise to proceedings that are criminal in nature.  I therefore approach these proceedings with the principles governing all criminal cases in the court squarely in mind.  Those principles require that before Mr Allbeury can be convicted of the charges brought against him, the applicant must prove beyond reasonable doubt all the elements that are said to give rise to the contempt.  The burden of proof of beyond reasonable doubt is the highest standard known to law, and the onus of proof remains on the applicant throughout these proceedings and does not change at any time.

4. The jurisdiction of this court to deal with alleged contempts of the Commission is provided by s 163 of the CCC Act:

   163.     Punishment of contempt of Commission

   (1)Where a contempt of the Commission is alleged to have taken place, the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt.

   (2)A certificate presented under subsection (1) is prima facie evidence of the matters certified in it.

   (3)Where a certificate is presented under subsection (1), the Supreme Court has jurisdiction as if the contempt were a contempt of that Court.

5. There was a certificate attached to the motion, purportedly issued under s 163(1) of the CCC Act which provided relevantly that a summons under the hand of the Commissioner of the Corruption and Crime Commission (the Commissioner) was served on Mr Allbeury on 9 November 2010 requiring him to attend the Commission on 12 November 2010 (par 1); that by virtue of the summons, Mr Allbeury was required to give evidence for the purpose of the investigation, the nature of which was identified (par 2); that Mr Allbeury attended and reported himself to the Commission and was sworn in (par 3) and that during the course of the Commission's examination Mr Allbeury failed to answer the questions set out in the table set out below (par 4). The format of the table then brackets portions of the transcript by reference to five separate nominated questions which it is said that Mr Allbeury failed to answer, the first question being whether he was a member of the Finks Motorcycle Club; the second question being whether he knew any members of the Finks Motorbike Club, the third question being whether on 3 October 2010 he went to the street drags at Kwinana; the fourth question being whether on 3 October 2010 he went in company with other members of the Finks Motorcycle Club; and the fifth question being whether he was present when Mr Marrapodi got injured.

6. The certificate goes on to deal with the second aspect of the alleged contempt, that of insulting the Commission and to set out in a table, fourteen occasions upon which it is said that Mr Allbeury insulted the Commission by responding to questions which the Commission required him to answer with various expressions, including 'Get fucked' and 'Fuck off'.

7. There are two challenges to the sufficiency of the particulars given in the motion accompanied by the certificate.  The first is that no particulars are given of the failure to answer questions relevant to the investigation in the motion.  That proposition depends upon a construction of the motion which would read an expression which follows the allegation of insult as being limited only to that allegation, rather than to applying to the preceding allegation of failure to answer questions.  I cannot see any basis for reading the motion in that way, given that there is a semi‑colon between par (b) and the words which follow, and further given that the certificate itself deals with both pars (a) and (b).  To read the motion any other way would, in my view, be perverse.  It follows that on a clear reading of the motion, the particulars of the failure to answer questions are provided by the certificate which is incorporated by reference into the motion.

8. The second complaint made with respect to the particularity of the motion is an alleged inability to identify the questions that Mr Allbeury is said to have failed to answer.  Again, it seems to me that the format of the table in the certificate is quite clear, and that those questions are readily identified.  They are the questions I have specified.

9. It is submitted that the certificate is not a certificate within the scope of s 163(1) of the CCC Act because it goes to matters of fact that go beyond the act or omission that are said to constitute the alleged contempt. I have rejected a similar submission for reasons that I have given in Corruption and Crime Commission v Wallace [2010] WASC 390, and the reasons that I have given for rejecting that submission apply with equal force to the submission in this case.

10. It follows that I find that the certificate validly invokes the jurisdiction of the court under s 163 of the CCC Act and provides prima facie evidence of the matters set out in the certificate. That evidence has been augmented by the affidavit of the Commissioner to which transcript of the proceedings and a DVD showing a recording of the proceedings that took place before the Commission is attached.

11. Based on that evidence, there being no evidence to the contrary, I find that a summons was served on Mr Allbeury on 9 November 2010 requiring him to attend on 12 November 2010 to give evidence for the purposes of an investigation under the CCC Act.

12. I also find that on 12 November 2010 he attended and reported and was sworn in, and that during the course of the examination he failed to answer the questions particularised in table 1 of the certificate, and that those questions were relevant to the investigation, and that Mr Allbeury was required by the Commissioner to answer the questions.

13. I also find that Mr Allbeury spoke the words identified in table 2 to the certificate which are said to give rise to contravention of s 162 of the CCC Act which makes it a contempt to insult the Commission while the Commission is conducting an examination.

14. As I have mentioned, the essential nature of that conduct is that in answer to 14 separate questions posed by the Commissioner and counsel assisting, most particularly the questions posed by the Commissioner, Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'.

15. It is said that I should conclude that that evidence does not constitute a contempt by insulting conduct.  The proposition, it is said, is that mere abuse does not of itself amount to contempt of court.  It seems to me that the difficulty with that submission is that the course of conduct identified by the certificate and which I have seen depicted in the DVD was not mere abuse; it was an abusive, derogatory and contemptuous response to a requirement posed by the Commissioner that Mr Allbeury answer the question.  That seems to me to fall very readily and easily within the notion of conduct which insults the Commission, and I therefore find that the conduct established by the certificate and by the evidence that I have seen constitutes conduct which insulted the Commission while the Commission was conducting an examination.

16. It seems to me that that finding is not affected in any way by the alternative submission that was made on behalf of Mr Allbeury which suggests that the prosecutor had failed to prove that the summons which required Mr Allbeury's attendance was not valid because the prosecutor had failed to prove all matters going to the validity of the exceptional powers finding that preceded the summons.

17. The conduct prohibited by s 162 of the CCC Act makes no reference to the issue of a summons, but includes within its embrace anybody who insults the Commission while the Commission is conducting an examination. So whatever view is taken with respect to the validity of the exceptional powers finding, it seems to me that the finding I have made already sustains the conclusion that Mr Allbeury is guilty of a contempt by reason of contravention of s 162.

18. In relation to the proposition that the prosecutor failed to prove the validity of the exceptional powers finding and that the prosecution should therefore be dismissed, I have ruled in Corruption and Crime Commission v Wallace that that proposition should be rejected and the reasons for that conclusion apply with equal force to this case. 

19. I therefore find that the both aspects of the charge of contempt alleged against Mr Allbeury have been made out.

20. It is my view that this matter should be adjourned until 21 January 2011 to provide Mr Allbeury with an opportunity to reconsider his position.  Mr Allbeury will be remanded in custody until 21 January 2011 when the court will reconvene.