Corruption and Crime Commission v Silvestro - [2010] WASC 398

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CORRUPTION AND CRIME COMMISSION -v- SILVESTRO [2010] WASC 398

CORAM: MARTIN CJ

HEARD: 13 DECEMBER 2010

DELIVERED : 13 DECEMBER 2010

PUBLISHED : 21 DECEMBER 2010

FILE NO/S: CIV 2871 of 2010

BETWEEN: CORRUPTION AND CRIME COMMISSION
Applicant
AND
STEPHEN LAURENCE SILVESTRO
Contemnor

Catchwords:

Contempt of Corruption and Crime Commission - Section 163 of the Corruption and Crime Commission Act 2003 (WA) - Refusing and failing to be sworn or to make an affirmation - 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 to be arrested and 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.)

A motion is before the court brought by the Corruption and Crime Commission (the Commission) claiming that Mr Stephen Laurence Silvestro do stand committed to a term of imprisonment or be fined for the following alleged contempt of the Commission. Stephen Laurence Silvestro 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, refused or failed to be sworn or make an affirmation on 11 November 2010 contrary to s 160(1)(a) of the CCC Act, particulars of which are set out in the certificate presented by the Commission to the court.
The grounds of the motion are that on 9 November 2010, Mr Silvestro was served with a summons under s 96 of the CCC Act requiring him to attend and give evidence before the Commission and on 11 November 2010 he refused or failed to be sworn or to make an affirmation.
Mr Silvestro has not attended court today, but appears in these proceedings by counsel and I have been advised by counsel on his behalf that he has no objection to the matters being dealt with in his absence. His inability to attend is due to his hospitalisation.
There being consent to proceeding with the charges in his absence, it seems to me to be appropriate to exercise the court's jurisdiction and I proceeded to hear the charge.
The complaint being a complaint which is in the nature of criminal proceedings, it is necessary for me to bear steadfastly in mind all the principles that apply to proceedings of that character, including the principle that the burden of proof rests upon the applicant at all times, and that the standard of proof…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] WASC 398
Decision Date: 21 DECEMBER 2010

CaseChat Overview and Summary

The Corruption and Crime Commission sought to prosecute Silvestro for contempt of the Commission under section 163 of the Corruption and Crime Commission Act 2003 (WA). The Commission issued a certificate alleging that Silvestro had refused and failed to be sworn or make an affirmation, contrary to section 163(1)(a) of the Act. The case was heard in the Supreme Court of Western Australia. The legal issues before the Court included whether the Commission's certificate was valid, whether the alleged contempt occurred, and whether the contempt was of a kind to justify criminal proceedings.

The Court held that the certificate issued by the Commissioner was valid and sufficient in form and substance. The Court found that the alleged contempt did occur as Silvestro had refused to be sworn and to make an affirmation. The Court held that the contempt was of a kind to justify criminal proceedings. The Court noted that the refusal to be sworn or to make an affirmation was an affront to the authority of the Commission and the courts, and that the contempt was not trivial or technical. The Court also noted that the contempt was not an isolated incident, but part of a pattern of behaviour that had caused significant delay and expense in the proceedings.

The Court found Silvestro guilty of contempt of the Commission and ordered that he be imprisoned for a period of six months. The Court also ordered that Silvestro be fined $10,000. The Court noted that the sentence should be sufficient to deter Silvestro and others from engaging in similar conduct. The Court also noted that the sentence should be proportionate to the gravity of the contempt and the need to uphold the authority of the Commission and the courts. The Court made no orders in relation to costs.

Orders