Corruption and Crime Commission v Silvestro
[2010] WASC 398
•21 DECEMBER 2010
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 that must be satisfied in the exercise of that burden of proof is the standard of proof beyond reasonable doubt, which is of course the highest standard of proof known to the law.
The jurisdiction of this court to deal with conduct alleged to be in contempt of the CCC is 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.
As I have indicated, there is a certificate attached to the motion purportedly provided pursuant to s 163(1) of the CCC Act. That certificate is under the hand of the Commissioner of the Corruption and Crime Commission (the Commissioner) and provides that a summons in writing under the Commissioner's hand was served on Mr Silvestro on 9 November 2010 requiring him to attend on 11 November 2010, and there to give evidence for the purposes of an investigation which is described in par 2 of the certificate (par 1).
It is certified that Mr Silvestro attended and reported himself to the Commission on 11 November 2010 and refused to be sworn or to make an affirmation contrary to s 160(1)(a) of the CCC Act, as particularised in a table which then follows which sets out the transcript of the events which occurred, and includes the fact that there was no answer from the witness on the many occasions upon which he was asked by the Commissioner to indicate whether he would take the oath or the affirmation (par 3).
Counsel on behalf of Mr Silvestro submits that the certificate does not enliven the jurisdiction of the court because it goes to matters of fact which go beyond the limited scope for such a certificate under s 163(1) of the CCC Act. I rejected an analogous submission in Corruption and Crime Commission v Wallace [2010] WASC 390, and the reasons for my rejection of the submission in that case apply with equal force to this case. It follows that there is no reason in my view why the certificate does not validly invoke the jurisdiction of the court and provide prima facie evidence of the matters of fact set out in the certificate.
The evidence presented in the certificate was augmented by the evidence of the Commissioner in the form of an affidavit, to which was attached the transcript of the proceedings when Mr Silvestro appeared, and also a DVD showing those proceedings, which has been received in evidence and played to the court.
There being no evidence to the contrary, I find as a fact that Mr Silvestro was served with a summons issued by the Commission on 9 November 2010, that it required him to attend on 11 November 2010 in order to give evidence for the purpose of an investigation being conducted by the Commission. I further find that he attended and reported himself to the Commission on 11 November 2010, but refused to be sworn or to make an affirmation, and that that conduct on the face of it constitutes a contempt, for which express provision is made by s 160(1)(a) of the CCC Act.
It is said, however, that I should not arrive at the conclusion that that conduct constituted a contravention of the CCC Act because of the failure of the prosecution to establish the validity of an extraordinary powers finding that preceded the issue of the summons that was served upon Mr Silvestro. A similar submission was put and rejected in Corruption and Crime Commission v Wallace, and the reasons for rejecting that submission can be taken to be incorporated by reference into these reasons, and I draw the same conclusion.
It follows that there is no reason why I should not conclude that the facts which I have found constitute the commission of the contempt alleged against Mr Silvestro, and I so find.
An arrest warrant will be issued for the arrest of Mr Silvestro. Mr Silvestro will be arrested and detained until 21 January 2011, with liberty to apply.
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