Corruption and Crime Commission v McCormick
[2010] WASC 397
•21 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CORRUPTION AND CRIME COMMISSION -v- McCORMICK [2010] WASC 397
CORAM: MARTIN CJ
HEARD: 13 DECEMBER 2010
DELIVERED : 13 DECEMBER 2010
PUBLISHED : 21 DECEMBER 2010
FILE NO/S: CIV 2873 of 2010
BETWEEN: CORRUPTION AND CRIME COMMISSION
Applicant
AND
NEIL SYDNEY McCORMICK
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 Commissioner's investigation - 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 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.)
Mr McCormick is the subject of a motion brought by the Corruption and Crime Commission (the Commission) seeking an order that he stand committed to a term of imprisonment or be fined for contempt, namely that 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, he failed to answer questions relevant to the investigation the Commission required him to answer on 12 November 2010 contrary to s 160(1)(b) 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.
The grounds of the application are that on 9 November 2010, Mr McCormick was served with a summons under s 96 requiring him to attend and give evidence, that on 12 November 2010 whilst giving evidence he failed to answer a question that the Commission required him to answer and that that question was relevant to the investigation.
Because the nature of the proceedings brought against Mr McCormick are criminal proceedings, it follows of course that I apply the well‑known principles that apply to all proceedings of that kind and bear them steadfastly in mind. The applicant carries the burden of proving the matters that are said to give rise to the contempt beyond reasonable doubt. That burden remains on the applicant throughout the case and the standard of proof beyond reasonable doubt is the highest standard known to the law.
The jurisdiction conferred upon this court to deal with alleged contempts against the Commission are conferred 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.
The motion has attached to it a certificate issued by the Commissioner purportedly pursuant to s 163 of the CCC Act which certifies that the summons in writing under the Commissioner's hand was served on Mr McCormick on 9 November 2010 requiring him to attend on 12 November 2010 to give evidence (par 1); that Mr McCormick was required to give evidence for the purpose of an investigation the nature of which is identified (par 2); that he attended and reported himself to the Commission and was sworn in (par 3), and that he failed to answer a question which is set out in a table to the certificate (par 4), and that that question was: 'Who owned it? [the ute]'. The table sets out the interchange that took place when that question was asked and establishes that Mr McCormick said, 'I'm not going to answer any more questions ... I might as well stop now.' Then the passage concludes, 'I can't answer any more, no.'
The first basis upon which the prosecution is defended is the assertion that the court lacks jurisdiction because the certificate is not a certificate falling within the scope of s 163(1) of the CCC Act. I considered a similar submission in Corruption and Crime Commission v Wallace [2010] WASC 390, and the reasons for rejecting that submission can be incorporated by reference into these reasons.
It follows that the certificate to which I have referred validly invokes the jurisdiction of the court and provides prima facie evidence of the matters of fact asserted within the certificate and that evidence was, in any event, augmented by affidavit evidence from the Commissioner to which a transcript of the proceedings was attached and which exhibited a DVD recording of that evidence which has been received in evidence and played to the court.
It follows that I find as a fact, there being no contrary evidence, that Mr McCormick was summoned to attend to give evidence before the Commission, the summons having been served on him on 9 November 2010, requiring him to attend on 12 November 2010; that he was required to give evidence to a matter under investigation by the Commission; that on 12 November 2010 he attended and reported himself to the Commission and was sworn in; and that during the course of the examination he failed to answer the question which is identified in the certificate, which was relevant to the matters under investigation by the Commission.
It follows that those facts are, on their face, capable of making out all the elements of the contempt established by s 160(1)(b) of the CCC Act.
It is put against the conclusion that I should reach that finding that the prosecutor has failed to prove the validity of an extraordinary powers finding that preceded the issue of the summons to Mr McCormick. A similar submission was put and rejected by me in Corruption and Crime Commission v Wallace to which I have referred and the reasons for rejecting that submission apply with equal force to this case.
It follows that there is no reason why I should not rely upon the findings of fact drawn from the certificate augmented by the evidence to which I have referred to conclude that Mr McCormick is guilty of the contempt alleged against him.
I have come to the conclusion that Mr McCormick should be remanded in custody until 21 January 2011 but with liberty to apply and the question of sentence will be reconsidered on that date.
0