Corruption and Crime Commission v Wallace
[2010] WASC 390
•21 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CORRUPTION AND CRIME COMMISSION -v- WALLACE [2010] WASC 390
CORAM: MARTIN CJ
HEARD: 13 DECEMBER 2010
DELIVERED : 13 DECEMBER 2010
PUBLISHED : 21 DECEMBER 2010
FILE NO/S: CIV 2869 of 2010
BETWEEN: CORRUPTION AND CRIME COMMISSION
Applicant
AND
STEPHEN JOHN WALLACE
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 - Particulars in motion - Certificate issued by Commissioner of the Corruption and Crime Commission - Interpretation of 'the act or omission' - Whether certificate enlivens court's jurisdiction - Technical irregularities - Extraordinary powers finding - Presumption of regularity - Scope to challenge validity of administrative acts in criminal proceedings - Definition of 's 5 offences' and 'organised crime'
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 46, s 47, s 48, s 96, s 160, s 163
Criminal Code (WA), s 294, s 304
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: Ms S Vandongen SC
Solicitors:
Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham
Case(s) referred to in judgment(s):
Australian Crime Commission and The Queen v LB [2009] NTSC 43; (2009) 25 NTLR 30
Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533
Kirk v The Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
R v Brisbane TV Limited; Criminal Justice Commissioner [No 2] [1998] 2 Qd R 483
R v Parry (Unreported, FCt SCt of WA, Library No 970196, 1 May 1997)
Re B (JA) (an Infant) (1965) Chancery 1112
Scott v Witness C [2009] QSC 35; (2009) 193 A Crim R 430
Selby v Pennings (1998) 19 WAR 520
MARTIN CJ: (This judgment was delivered extemporaneously on 13 December 2010 and has been edited from the transcript.)
There is a motion before the court brought by the Corruption and Crime Commission (the Commission) which seeks orders that Mr Wallace do stand committed to a term of imprisonment or be fined for a contempt expressed in the following terms. That Mr Wallace, 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 11 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 Act.
The motion gives notice that the grounds of the application are that on 9 November 2010, Mr Wallace 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 Mr Wallace, whilst giving evidence at a Commission examination, failed to answer questions that the Commission required him to answer, and that those questions were relevant to the investigation.
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 Wallace can be convicted of the charge that has been 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 the law, and the onus of proof remains on the applicant throughout these proceedings and does not change at any time, although there may be issues relating to an evidentiary onus, to which I will turn later in these reasons.
The jurisdiction of this court to deal with alleged contempts of the Commission is provided by s 163 of the CCC Act. Section 163(1) provides that 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. Subsection (2) provides that a certificate presented under subsection (1) is prima facie evidence of the matters certified in it, and subsection (3) provides that where a certificate is presented under subsection (1), the Supreme Court has jurisdiction as if the contempt were a contempt of that court.
As the terms of the motion suggested, there was a certificate attached to the motion. The Commissioner of the Corruption and Crime Commission (the Commissioner) in that certificate certified the following: that a summons in writing under his hand was served on Mr Wallace on 9 November 2010 requiring him to attend the Commission at the time and place named in the summons (par 1); that by virtue of the summons, Mr Wallace was required to give evidence for the purpose of an investigation under the CCC Act, the scope and purpose of that investigation being to facilitate the investigation of 's 5 offences' by the WA Police allegedly committed in the course of organised crime on 3 October 2010 by members, nominees and associates of the Coffin Cheaters outlaw motorcycle gang (namely acts intended to cause grievous bodily harm against Stephen John Wallace and David Frank Marrapodi contrary to s 294 of the Criminal Code and acts or omissions causing bodily harm or danger against Troy Crispin Smith and Stephen Laurence Silvestro contrary to s 304 of the Criminal Code) (par 2); that on 11 November 2010, Mr Wallace attended and reported himself to the Commission and was sworn in (par 3); and that during the course of the examination Mr Wallace failed to answer the questions set out in table 1, contrary it is said, to s 160(1)(b) of the CCC Act (par 4).
Then follows a table which has been grouped into a series of numbered items, numbering between one and 18. Each item is confined, as it seems to me, to a particular question, so that by way of example, item 1 commences with the question posed by counsel in these terms, 'Mr Wallace, you are a member of the Finks Motorcycle Club I believe?', to which Mr Wallace replied, 'No comment'. There were other questions directed to the witness in order to encourage him to answer that question, but essentially that portion of the transcript is directed to that single question, that is, whether he was a member of the Finks Motorcycle Club, to which Mr Wallace persistently replied, 'No comment'.
The Commissioner also stated in the certificate that the questions asked in table 1 were relevant to the investigation (par 5); and that Mr Wallace was required by the Commissioner to answer the questions (par 6).
It is firstly alleged that the particulars of the motion are inadequate to apprise Mr Wallace of the case that he was required to meet. It is said that because there are a large number of questions referred to in the certificate, it is not possible for Mr Wallace to know which of the questions he is said to have failed to answer. I do not accept that submission. It seems to me that the interpretation of the table is clear and, as I have indicated, the number in the left hand side of the table indicates clearly and unequivocally to any reasonable reader the question that is identified and which is said to be a particular of the failure to answer relevant questions. So in the case of item 1, the question was whether or not Mr Wallace was a member of the Finks Motorcycle Club. In the case of item 2, the question was whether on 3 October 2010 Mr Wallace went to the street drags at Kwinana, etcetera. So I do not accept that there is any defect in the motion when read with the certificate in terms of the particularity provided.
The next proposition put is essentially that the certificate does not enliven this court's jurisdiction because it is not a certificate falling within the meaning of s 163(1) of the CCC Act. The decision in Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533 is relied upon in support of that proposition. In that case McLure JA made observations about the extent to which s 163 of the CCC Act makes provision for matters to be certified. In her Honour's view, put very generally, there was a difficulty in that case because the certificate went well beyond matters of fact and included matters of opinion and assertions of law.
It is said that in this case a different invalidity arises from the terms of the certificate. It is not by reason of inclusion of matters of opinion or matters of law, but rather because the facts asserted in the certificate go beyond that which is permissible within the scope of s 163(1) of the CCC Act. In particular, emphasis is placed upon the words '[t]he act or omission,' in s 163(1) of the CCC Act, so that it is said that anything in the certificate that goes beyond 'the act or omission' that is said to constitute the contempt, takes the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court within the meaning of 163(3) of the CCC Act.
Taking that proposition to its logical conclusion in this case it would result in the proposition that all that could be validly included within the certificate is the assertion that, for example, in the case of item 1 to which I have referred, that Mr Wallace said 'No comment.' According to the submission, it would not even be permissible to put in the question. It would simply be the act or omission committed by Mr Wallace which is said to be the contempt, which is the saying of 'No comment.'
That observation seems to me to illustrate the impossibility of this proposition and ignores, significantly in my view, that the words 'act' or 'omission' are part of a phrase which refers to the details of the act or omission that the Commission considers constitute the alleged contempt. The correctness of that view is clear when the phrase 'the act or omission' is read in its context, in s 163 of the CCC Act specifically as well as in the context of pt 10 of the Act and in the context of the Act as a whole. What is contemplated is that the Commission will provide a certificate to the court which apprises both the court and the person the subject of the certificate with all relevant facts that are said to constitute the contempt of the Commission. That interpretation serves an obvious and proper legislative purpose. To confine the scope of the certificate, as counsel for Mr Wallace would contend, would make the certificate virtually meaningless and serve no apparent legislative purpose. For that reason, it is a construction of the section which I reject.
It follows that the proper scope of the certificate will be determined by reference to the scope of the contempt alleged. So if one goes, for example, to a contempt alleged by reason of contravention of s 160(1)(b) of the CCC Act, which is the case brought against Mr Wallace, the elements of that contempt are, firstly, that he was a person served with a summons under s 96 of the CCC Act requiring him to attend and give evidence and secondly, that he failed to answer a question relevant to the investigation that the Commission required the person to answer. Going back to the terms of the certificate in this case, par 1 goes to the element of whether or not he was a person served with a summons. Paragraph 2 of the certificate goes to the nature of the summons. That is that it was a summons requiring him to give evidence, which is an element of the offence. By par 3 of the certificate it is provided that Mr Wallace attended and reported and was sworn in. That of course is a prerequisite to a refusal to answer. By par 4 of the certificate, particulars of the questions which Mr Wallace refused to answer are given. They are plainly elements of the offence alleged. Paragraph 5 of the certificate deals with another element of the offence, namely, that the questions asked were relevant, and par 6 of the certificate deals with the final element of the offence which is that Mr Wallace was required by the Commission to answer the questions.
I therefore conclude that there is no aspect of the certificate that goes beyond the scope of s 163(1) of the CCC Act. Had I taken a different view, it would then have been necessary to give consideration to the consequences of that view.
It seems to me that any different view would have led to the conclusion that there may have been, at best, a technical breach of s 163(1) of the CCC Act which could and should be waived. In Aboudi at [55], McLure JA made reference to the power of the court to waive technical irregularities that do not in any way prejudice the alleged contemnors. It is submitted that this observation was made in the context of a technical defect in the motion but that it should not be regarded as extending to a technical defect in the certificate, given that the certificate enlivens the jurisdiction of the court.
With respect, I do not accept that submission. Her Honour relied upon the decision of Malcolm CJ in R v Parry (Unreported, FCt SCt of WA, Library No 970196, 1 May 1997) in which his Honour referred with approval to observations made by Cross J in Re B (JA) (an Infant) (1965) Chancery 1112 at 1118:
When, however, one passes away from safeguards which are laid down in the interests of the contemnor and comes to consider mere verbal deficiencies in the documents in question - cases where the documents do not comply strictly with the rules, but it is impossible that in any conceivable case the contemnor could be in any way prejudiced by the defects - then it seems to me that there is no reason why the court should be any slower to waive such technical irregularities in a committal proceeding than they would in any other proceeding.
It seems to me that this observation is not confined to the motion initiating the contempt proceedings, but rather extends to and includes other documents that are prerequisite to the valid pursuit of the proceedings for contempt.
Accordingly, if I had come to a contrary view as to the scope of the certificate, I would have taken the view that if there was excessive material in the certificate provided under s 163 of the CCC Act that went beyond the scope of that which was properly permissible under s 163(1) of the CCC Act, in the absence of any prejudice being demonstrated to the alleged contemnor, it would have been appropriate to waive that irregularity. Because of that view, it is unnecessary to consider the possibility of severance, to which reference was made in the decision of R v Brisbane TV Limited; Criminal Justice Commissioner [No 2][1998] 2 Qd R 483.
I therefore conclude that the certificate attached to the motion validly invokes the jurisdiction of this court and provides prima facie evidence of the matters asserted in the certificate. Those matters have in any event been augmented by evidence tendered in support of the application in the form of an affidavit by the Commissioner, to which both the transcript of the proceedings and a DVD of the proceedings were attached.
There is no evidence to the contrary of the matters asserted in the certificate corroborated by the affidavit evidence to which I have referred, and I therefore find as facts all the matters asserted in the certificate.
I find in particular that Mr Wallace was served with a summons on 9 November 2010 requiring him to attend the Commission on 11 November 2010 and there to give evidence for the purposes of an investigation under the CCC Act into the matters specified in the certificate. I also find that on 11 November 2010, Mr Wallace attended and reported himself to the Commission and was sworn in, but that during the course of the examination he failed to answer the questions particularised in table 1 of the certificate and which I need not repeat in full. I also find that the questions asked in table 1 were relevant to the investigation and that Mr Wallace was required by the Commissioner to answer those questions.
On the face of it therefore, the findings that I have made would constitute satisfaction of the applicant's burden of proving beyond reasonable doubt the matters of fact that sustain the conclusion that Mr Wallace committed a contempt of court.
However, it is said in opposition to that conclusion that the applicant has failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner which preceded the issue of the summons.
It is necessary to explain that submission by going to some provisions of the CCC Act, starting with s 47(3) of the CCC Act, which provides that div 2 to div 5 of the CCC Act, which empower the investigation of offences, are to apply if the Commission has made an exceptional powers finding in respect of the s 5 offence concerned. It is necessary to read s 46 of the CCC Act to identify what an exceptional powers finding is. Subsection (1) of that section provides that:
On the application of the Commissioner of Police, the Commission may find whether or not it is satisfied that -
(a)there are reasonable grounds for suspecting that a section 5 offence has been, or is being, committed;
(b)there are reasonable grounds for suspecting that there might be evidence or other information relevant to the investigation of the offence that can be obtained using exceptional powers; and
(c)there are reasonable grounds for believing that the use of exceptional powers would be in the public interest having regard to -
(i)whether or not the suspected offence could be effectively investigated without using the powers;
(ii)the extent to which the evidence or other information that it suspected might be obtained would assist in the investigation, and the likelihood of obtaining it; and
(iii)the circumstances in which the evidence or information that it is suspected might be obtained is suspected to have come into the possession of any person from whom it might be obtained.
Subsection (2) provides that:
If the Commission finds that it is satisfied that the grounds described in subsection (1) exist, the finding (an exceptional powers finding) is to be reduced to writing and a copy of it is to be given to the Commissioner of Police.
In order to apply that section, it is necessary to go to s 3 of the CCC Act to look for the definition of organised crime. That section provides that that expression means:
… the activities of 2 or more persons associated together solely or partly for purposes in the pursuit of which 2 or more Schedule 1 offences are committed, the commission of each of which involves substantial planning and organisation.
Section 5 of the CCC Act defines a s 5 offence as:
A section 5 offence is a Schedule 1 offence committed in the course of organised crime.
A sch 1 offence is defined in s 3 of the CCC Act to mean an offence described in sch 1 to the CCC Act. Schedule 1 contains a catalogue of various offences contrary to various statutory provisions, including the Criminal Code (WA), and includes within its terms s 294 and s 304 of the Criminal Code. Before turning to the exceptional powers finding, which has been attached to the affidavit of Ms Padmanabham that has been tendered in evidence in this case, it is necessary to return to the elements of the charge of contempt that has been brought against Mr Wallace by reference to s 160(1)(b) of the CCC Act, that being the provision which Mr Wallace is said to have contravened.
As I mentioned earlier, the elements of the offence created by that section are, firstly, that Mr Wallace was a person served with a summons under s 96 of the CCC Act; secondly, that the summons required him to attend and give evidence; thirdly, that he failed to answer a question; fourthly, that that question was relevant to the investigation; and fifthly, that the Commission required the person to answer the question.
I digress to observe that the summons in the present case was issued pursuant to the powers conferred by s 48 of the CCC Act. When an exceptional powers finding has been made, s 48 of the CCC Act empowers the Commission on an application of the Commissioner of Police, to issue a summons under s 96 of the CCC Act.
On the face of the statutory provision giving rise to the charge of contempt which Mr Wallace faces, there is no element of the offence that requires the prosecutor to prove the validity of an exceptional powers finding that preceded the issue of the summons. Rather, it is the fact of the issue of the summons and the attendance in answer to the summons that enlivens the offence of contempt.
I will now refer to some of the cases that deal with the extent to which points such as that now raised by Mr Wallace can be properly ventilated in proceedings of this kind. Starting with the decision of the High Court in the case of Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94. This case concerned the validity of evidence gathered as a result of the issue of a warrant, which is of some significance. In particular, there is a passage at page 105 in the judgment of Mason CJ and Toohey J where their Honours observed:
The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant. There was no challenge to the jurisdiction of the Supreme Court to grant a warrant; counsel sought to challenge the sufficiency of the grounds on which the warrant had been granted. This attack on the warrant was misconceived. The admissibility of Miss X depended on the existence of the warrant, not the sufficiency of the grounds for granting it.
In Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, which was also a case concerning a warrant, Gummow J observed at pages 130 ‑ 131:
The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where 'acts are of an official nature … everything is presumed to be rightly and duly performed until the contrary is shown'.
The quoted passage is from Broom's A Selection of Legal Maxims, 10th ed (1939). His Honour then referred with approval to the passage in the decision of Mason and Toohey JJ in Murphy, to which I have just referred.
However, in a more recent decision of the High Court, that of Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 in a joint judgment of six members of the court including Gummow J, Ousley was given a construction that suggested that there was scope for challenge to the validity of administrative acts in the course of criminal proceedings. Their Honours observed in the joint judgment, at [22], that a submission to the contrary made by counsel for the Commissioner should not be accepted.
Their Honours observed:
The reasoning in Ousley v The Queen supports the contrary position at least where, as here, the argument is that the issue of the Authorities was an administrative act beyond the statutory power conferred on the Commissioner … which calls for the trial judge to rule on a 'collateral' attack.
More recently that proposition was endorsed by Southwood J sitting in the Supreme Court of the Northern Territory in Australian Crime Commission and The Queen v LB [2009] NTSC 43; (2009) 25 NTLR 30. His Honour took the view at [38] that there was nothing in Ousley that precluded what is described as a collateral attack in the course of criminal proceedings, and in particular the capacity to develop a challenge to the validity of a determination in that case made by a board which was a prerequisite to the validity of the act under consideration.
In doing so, his Honour referred with approval to a decision of the Full Court of the Supreme Court of Western Australia in Selby v Pennings (1998) 19 WAR 520. In that case Ipp J, with whom the other members of the court agreed, referred to the presumption of regularity and made reference to the competing authorities on the extent to which the presumption of regularity applied in criminal proceedings. In the event in that case, it was significant to Ipp J that the character of the proceedings was criminal in nature and, secondly, that the notice itself on its face called into question its own validity. In other words, that was a case of patent defect.
It seems to me in the light of those authorities that it may be open to a person served with a summons under the CCC Act to challenge the validity of an exceptional powers finding that preceded the issue of a summons under s 48 of the CCC Act. That could be done by way of judicial review proceedings, subject to compliance with s 83 of the CCC Act. However, there must be a doubt with respect to the validity of that section insofar as it would seek to restrain the breadth of judicial review proceedings, having regard to the decision of the High Court in Kirk v The Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
Whatever be the position with respect to the validity of s 83 of the CCC Act, there is scope for challenge to the validity of an exceptional powers finding by way of judicial review proceedings. It would also be open to a person summoned to appear before the Commission and to give evidence to take that point before the Commission, and to argue before the Commission that the summons was invalid and seek to have it set aside, on the basis that the exceptional powers finding was not validly made, with the result that the exercise of the purported power to summons the person was invalid and that therefore the summons should be set aside. However, it seems to me that unless and until either of those steps are taken and a ruling obtained on the subject of the exceptional powers finding, it is the fact of the exceptional powers finding that enlivens the Commission's jurisdiction to summons a witness, not the sufficiency of the material upon which the finding was based or its legal validity (at least prior to any determination of invalidity).
It seems to me that that conclusion follows from the scheme of the CCC Act as a whole, and from the nature of the powers conferred upon the Commission. It would be impossible for the Commission to exercise its powers in the sense contemplated by the legislature if it was open to persons served with summonses under the CCC Act to neither commence proceedings challenging the validity of matters antecedent to the issue of the summonses, such as the making of an exceptional powers finding, nor move to set aside the summons identifying the basis of the challenge, but to reserve to themselves the power to take that point only if and when contempt proceedings were brought. Such a construction of the CCC Act would seem to me to frustrate its evident purpose. In the present case, there having been neither judicial review proceedings instituted nor any attempt made before the Commission to set aside the summons, the acts antecedent to the issue of the summons, namely the making of the exceptional powers finding, should be considered by this court to be valid and not permitted to be the subject of collateral attack in these proceedings.
I accept that this view is contrary to the line taken by Jones J in the Supreme Court of Queensland in the decision in Scott v Witness C [2009] QSC 35; (2009) 193 A Crim R 430, but I observe that that was in the context of different legislation and it does not seem that the issue to which I have just referred was ventilated before his Honour or at least is not the subject of express reasons in the report of that case.
If the present basis of opposition to the contempt charge was something that went to one of the enunciated elements of the offence in s 160(1)(b) of the Act, ie, if it went to the question of whether or not the summons had in fact been issued by the Commissioner, whether it had been signed by the Commissioner, whether it had been served on the alleged contemnor and so on, then these would be matters necessarily proven by the prosecutor. For example, if there was a patent defect on the face of the summons that enlivened an issue as to the validity of the summons, the prosecutor would carry the burden of proving validity. However, it seems to me that to go behind the summons and to require the prosecutor to prove all matters antecedent to its issue is to go beyond the scope of the matters raised by the bringing of contempt proceedings for contravention of s 160(1)(b) of the CCC Act.
In case I am wrong in that view, it seems to me, and counsel for Mr Wallace does not contend otherwise, that the presumption of regularity would apply to enable the court to be satisfied with respect to the validity of the exceptional powers finding that preceded the issue of the summons unless and until there was some evidence that suggested the invalidity of the exceptional powers finding. That is why, as I suggested earlier, notwithstanding that the burden of proof remains at all times upon the prosecutor (in this case the Commission), in some instances, such as where there is a presumption of regularity, there can be an evidentiary onus upon a party charged with contempt to adduce at least some evidence which is capable of giving rise to a doubt as to validity, in this case, of the exceptional powers finding.
On this alternative view of the matter, the question is whether or not there is such evidence. The exceptional powers finding is exhibited to the affidavit of Alana Mariamma Padmanabham and has been redacted by the Commission to delete material that it is said is confidential. I understand no point is taken in relation to redaction.
Doing the best I can to construe the submissions, both written and oral, that were made on behalf of Mr Wallace in relation to the satisfaction of the evidentiary onus, the evidence relied upon to raise an issue as to validity is said to arise from the face of the exceptional powers finding itself. It is first said that there should be an inference that the Commissioner has misconstrued the powers conferred upon him by the CCC Act, because he has referred inappropriately to the matters that are under investigation, or indeed the matters that are suspected. In order to explain that proposition, it is necessary to set out the relevant terms of the exceptional powers finding, in which the Commissioner found, and I quote:
… there are reasonable grounds for suspecting that the following Section 5 offences have been committed, namely:
(i)acts intended to cause grievous bodily harm: section 294 of the Criminal Code (against Wallace and Marrapodi);
(ii)acts or omissions causing bodily harm or danger: section 304 of the Criminal Code; (against Smith and Silvestro).
I digress to reiterate that s 294 and s 304 of the Criminal Code are each sch 1 offences. The Commissioner then went on to observe that those offences could be described collectively as the 's 5 offences' and that 'such offences have been committed in the course of organised crime'.
The Commissioner then went on to make findings in relation to the other terms of s 46 of the CCC Act, but I do not apprehend the submission to be reliant upon those other findings.
It is said that two propositions emerge from this portion of the exceptional powers findings. The first is that the Commissioner misconstrued the definitions in the CCC Act, because he has described the offences as 's 5 offences' and has then gone on to specifically find that such offences have been committed in the course of organised crime. This is said to be tautological, because of course s 5 offences by definition must be offences that have been committed in the course of organised crime. That proposition, with respect, seems to me to be overly technical and to take a fine point of grammar against a finding, the meaning of which is clear and obvious. What is found by the Commission is that there are reasonable grounds for suspecting that a number of offences have been committed. They are all offences within the scope of sch 1 of the Act, and the offences have been committed in the course of organised crime.
The fact that the offences have been characterised as s 5 offences is in my view quite incapable of leading to even the remotest possibility that the Commission failed to consider whether or not those offences were committed in the course of organised crime because there has been a specific finding to that effect in the exceptional powers finding.
Next it is said that because there is a failure to refer anywhere in the finding to the definition of organised crime, it is possible that the Commission may have misconstrued the definition of organised crime, and in particular the statutory scheme to which I have referred, and misconstrued the question of whether or not the offence under investigation has to be additional to the two offences that are said to give rise to the satisfaction of the definition of organised crime or whether those two offences are sufficient.
I am unable to see any ambiguity in the definition provisions of the CCC Act to which I have referred. It seems to me that if there are two or more sch 1 offences suspected to have been committed in the course of organised crime, then the relevant element of the definition is made out. In any event, the finding itself discloses an ample number of offences against each of s 294 and s 304 because there are two prospective victims indicated in respect of each offence. There are at least four prospective offences identified on the face of the findings, so it does not seem to me to matter whether the Commission considered whether two offences were required or three, because in fact the Commission has found that there are four offences in respect of which there are reasonable grounds for suspicion.
Notwithstanding the ingenuity of this argument, it does not give rise to any reasonable ground for suspecting that the decision making power with respect to the making of an exceptional powers finding miscarried by reason of any misconstruction of the CCC Act.
For those reasons I conclude that there is no evidence whatever to suggest that there was any departure from the obligations of the CCC Act at the time the exceptional powers finding was made. It follows that Mr Wallace has not discharged the evidentiary onus of adducing at least some evidence that might give rise to an issue as to the validity of the exceptional powers finding. So, even if it is open to Mr Wallace to ventilate those issues in these proceedings, I conclude that the presumption of regularity applies and I should find, and I do find, that the exceptional powers finding made by the Commission prior to issuing the summons against Mr Wallace was valid.
It follows that the lines of argument that have been advanced in opposition to the conclusion that the findings of fact that I have made result in a finding of contempt should be rejected, and I find that the alleged contempt has been established.
I propose to adjourn sentencing until 21 January 2011. Mr Wallace, you will be detained in custody until 21 January 2011, but if you do wish to take the opportunity to purge yourself of your contempt, it will go easier on you.
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