DPP v Garde-Wilson
[2006] VSCA 295
•19 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8744 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| ZARAH GARDE-WILSON |
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JUDGES: | MAXWELL, P., ASHLEY, J.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 and 8 June 2006 | |
DATE OF JUDGMENT: | 19 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 295 | |
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CONTEMPT OF COURT – Prosecution by DPP – Appeal against penalty – Competence of Crown appeal – Crown appeal generally – Supreme Court Act 1986 s.17(2), Public Prosecutions Act 1994 s.22, RSC O.75.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A.G. Uren, Q.C. with Dr S.B. McNicol | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.G. Nash, Q.C. | Garde-Wilson Lawyers |
| For the Chief Commissioner of Police | Mr G.J. Maguire |
MAXWELL, P.:
I have had the considerable advantage of reading in draft the reasons for judgment of Bongiorno, A.J.A. I agree that, for the reasons which his Honour gives, the appeal should be dismissed as incompetent.
ASHLEY, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Bongiorno, A.J.A. In my respectful opinion they show very clearly why, in point of principle, this appeal against an order made in the contempt proceeding brought by the Director against the respondent is incompetent. On that account, an order should be made dismissing the appeal.
BONGIORNO, A.J.A.:
Zarah Garde-Wilson is a solicitor. For two years or so prior to his death she lived as the de-facto wife of one Lewis Caine, also known as Sean Vincent. On 8 May 2004, Caine was murdered by Keith George Faure and Evangelos Goussis, both of whom were convicted of that murder after a trial in the Trial Division in October 2005.
Following Caine’s death, Ms Garde-Wilson co-operated with police in the investigation which led to the charging of Faure and Goussis although she was not called as a witness at the committal hearing which preceded their trial. Apparently she had declined to sign a statement prepared for her by investigators. Nevertheless, on 7 October 2005, in the course of Faure and Goussis' trial, she was called by the Crown as a witness on the voire dire. However, after being sworn she refused to answer any questions asked of her by the prosecutor. She said she was unable to do so because of fears for her safety. After receiving this explanation the presiding Judge decided to charge Ms Garde-Wilson with contempt of court but, as he
considered it more appropriate that that charge be dealt with by the Court constituted by another Judge, he made administrative arrangements for that to occur.
Upon the contempt matter coming before the Court, constituted by the second Judge, on 10 October, that Judge made a series of orders which commenced with one directing the DPP to file and serve an originating motion specifying the contempt alleged against Ms Garde-Wilson. That originating motion was to be made returnable before the Court on 18 October. There were further orders as to the filing and service of affidavits, with all of which the DPP complied so that when the matter came before the Court again on 18 October it was ready to be heard.
On 9 November 2005, Ms Garde-Wilson was found guilty of contempt of court. The matter was then adjourned for the hearing of a plea which took place on 17 November. On 22 November the Court delivered a written judgment by which Ms Garde-Wilson was convicted of contempt but no further penalty was imposed upon her.
On 5 December 2005 the DPP instituted an appeal. The Director’s notice specified 11 numbered grounds each of which was directed to an alleged inadequacy in the penalty imposed upon Ms Garde-Wilson by the Court. In response Ms Garde-Wilson contended that the DPP’s appeal was incompetent. She filed a Notice of Contention to this effect on 9 December particularising the grounds upon which she relied. Those grounds were:-
●First, that although the DPP brought the charge of contempt against her, in doing so he acted on the direction of the Court and that, accordingly, the charge was really brought by the Court itself, thus precluding any appeal.
●Secondly, that if it heard the DPP’s appeal this Court would be permitting him to interfere in the exercise by the Supreme Court of its inherent jurisdiction in a contempt case; and
●Thirdly, that s.17(2) of the Supreme Court Act 1986 (the provision which confers a general right of appeal from a determination of the Trial Division of the Court) does not give the Crown a right of appeal against a sentence imposed in respect of contempt in the face of the court.
The Institution of the Contempt Proceeding
When Ms Garde-Wilson refused to answer the prosecutor's questions on the voire dire in the trial of Faure and Goussis the trial Judge decided that he should not deal with her for contempt but should rather refer the matter to another Judge. In doing so he referred to Magistrates Court of Victoria v Murphy,[1] a decision of this Court which confirms the availability of such a procedure. The prosecutor endorsed the procedure suggested by the Judge and said it was appropriate that "we" be involved in that proceeding – by which he appears to have been referring to the Crown. Although the trial Judge said that he was disposed to indicate to Ms Garde-Wilson that she was charged with contempt, no charge was ever formally laid and she was never asked to plead. Thus, at the time the matter was referred to the second Judge there was no proceeding for contempt on foot in the Trial Division of the Court. This is important having regard to the actions of the DPP after the second Judge became seized of the matter.
[1][1997] 2 VR 186, 208 (Charles JA).
On 10 October, when the matter came before the Judge who eventually heard the contempt charge, the Crown was represented by senior counsel as was Ms Garde-Wilson. Although most of the hearing on that day appears to have been concerned with a consideration of appropriate suppression orders to protect, not only the Faure and Goussis trial, but also another then current criminal trial, there was some discussion of the appropriate procedure to be followed on the contempt charge. Counsel for the Crown, who was a Senior Crown Prosecutor, adopted the role of prosecutor and, although there was some mention of RSC O.75 and of the Prothonotary instituting a proceeding for contempt, it was assumed on all sides that the Crown would prosecute the charge of contempt. So much is clear from the transcript. Accordingly, it is not surprising that, when framing directions for the further conduct of the matter, his Honour spoke of directing the Crown to file and serve an originating motion pursuant to RSC r.75.06(3) and supporting affidavits by a certain time.
In making the orders which it did, the Court was not directing the Crown to institute the contempt proceeding in the sense of ordering it to do so. It was merely regulating the conduct of a proceeding which the Crown was clearly intending to institute and prosecute. The Judge’s direction related to the orderly conduct of the proceeding which needed to be instituted if the Crown was going to prosecute Ms Garde-Wilson for contempt. The fact that his Honour subsequently authenticated an order to the same effect as his oral direction does not change the fundamental nature of the act in which he was engaged. Understood in the context of the discussion between him, the Senior Crown Prosecutor and counsel for Ms Garde-Wilson, that order should not be construed as doing more than acknowledging that the Crown intended to commence a proceeding against Ms Garde-Wilson and directing that it file and serve originating process and supporting material according to a timetable.
Section 22(ba)(iii) of the Public Prosecutions Act 1994 confers a specific function on the Director of Public Prosecutions to institute, prepare and conduct proceedings for contempt of court on behalf of the Crown in relation to criminal proceedings. This is what he did in this case. He exercised his own prosecutorial function conferred by the relevant statute. Until the originating motion which commenced the prosecution against Ms Garde-Wilson was filed, there was no proceeding on foot against her. It was this proceeding, and only this proceeding, which was the vehicle for her eventually being convicted of contempt and discharged without further penalty. Had the trial Judge in the Faure and Goussis trial charged Ms Garde-Wilson with contempt there may have been a complication created by the DPP's originating motion, as she would then have been facing, simultaneously, two proceedings for the same offence. As that situation did not arise, there is no need to consider what effect it might have had on the disposition of this appeal.
The Competence of the DPP's Appeal
Counsel for Ms Garde-Wilson, Mr G. Nash, argued in support of Ms Garde-Wilson's first and second contentions that the institution of the charge against her was an instance of the Court acting of its own motion. He referred to Saltalamacchia v Parsons[2] where JD Phillips JA expressed considerable doubt as to whether, where the Prothonotary unsuccessfully instituted contempt proceedings when directed to do so by a Judge pursuant to RSC r.75.07(1), he had a right of appeal to this Court. His Honour’s doubts were based on the proposition that to allow such an appeal would be to accept that the Court could, in effect, appeal to itself. However, the Court in that instance did not have to decide the point as it dismissed the Prothonotary's appeal on the merits.
[2][2000] VSCA 83.
This case cannot be characterised as one in which the Court is seeking to appeal to itself, as Parsons might have been, for the reasons already advanced. There is, accordingly, no need to consider whether JD Phillips JA’s tentative conclusions as to an appeal by the Prothonotary were correct. This proceeding was instituted by the DPP in the performance of his functions under s.22 of the Public Prosecutions Act 1994 so that the considerations which caused JD Phillips JA to doubt the competence of the Prothonotary’s appeal in Saltalamacchia v Parsons are not relevant here.
Mr Nash referred the court to Maxwell v R,[3] and in particular to the passage in the judgment of Gaudron and Gummow JJ in that case, where their Honours considered the nature of the prosecutorial discretion which resides in the DPP. Their Honours observed that the independence and impartiality of the judicial process and the public’s perception of that independence and impartiality would be compromised if the courts were to decide, or were to be concerned in any way with, questions of who was to be prosecuted and for what. But contempt in the face of the court is undoubtedly a special case. Prosecution in respect of it is not uncommonly instituted by the presiding judicial officer, a situation with which their Honours in Maxwell were not concerned. The principles to which they were referring, however, have no relevance here for a different reason. Having regard to the proper characterisation of what the Judge was doing when he made the procedural orders directing the DPP to file and serve papers, no question of his having been concerned in the decision to bring the proceeding arises. The proceeding was brought by the Director of Public Prosecutions. Thus the first two of Ms Garde-Wilson's contentions as to the competence of the DPP's appeal are without substance.
[3](1996) 184 CLR 501, 534.
Does the Crown have a Right of Appeal?
The third contention raised by Ms Garde-Wilson in support of her argument that the Director's appeal is incompetent was that the legislative provision conferring a general right of appeal in respect of any determination of the Trial Division constituted by a Judge should not be construed as extending to the Crown in respect of a sentence imposed following a conviction for contempt. Essentially, the argument is that the concept of a Crown appeal against sentence is anomalous and should be confined to the cases where a specific right to appeal has been legislatively conferred.
The power of the Crown to appeal against a sentence imposed after a trial on indictment is conferred by s.567A of the Crimes Act 1958 – a provision introduced in 1970. As a prerequisite to the institution of such an appeal there must be an administrative determination by the DPP, not only that a different sentence should have been imposed by the trial Judge but also that it is in the public interest that an appeal should be brought. It is only if these determinations are made by the Director personally that an appeal can be lawfully brought. Similarly, in respect of appeals by the DPP to the County Court following a sentence imposed in the Magistrates’ Court,[4] and an appeal against an order of unconditional release in respect of a person acquitted of a criminal offence because of mental impairment,[5] the Director must make specific administrative determinations as conditions precedent to the valid institution of an appeal. These legislative requirements were specifically referred to by Gibbs CJ, Mason and Wilson JJ in the High Court in Rohde v DPP.[6] Their Honours regarded them as constituting qualifications on the Crown's right of appeal which had to be fulfilled to enable an appeal to be brought validly.
[4]Section 84 Magistrates' Court Act 1989.
[5]Section 24A Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
[6](1986) 161 CLR 119, 125 (Gibbs CJ, Mason and Wilson JJ).
But none of these provisions has any application in this case. Ms Garde-Wilson was not tried on indictment and the provisions of the other statutes referred to can have no application here. This proceeding, as instituted by the DPP, was civil in form and commenced in accordance with RSC r.75.06. Although the distinction between civil and criminal contempt is no longer of the importance it once may have been since the High Court decision in Witham v Holloway,[7] the refusal to answer a question properly asked in a curial proceeding constitutes, on any view, a criminal contempt of court. The object of a proceeding for contempt in such a circumstance, whatever form it takes, is punishment. Such a proceeding "must realistically be seen as criminal in nature."[8] This is so even though the procedure by which the contempt is brought before the Court is now generally regulated by the Court’s rules for conducting a civil proceeding rather than those which would apply to a criminal case. Thus, any right of appeal which the Crown may have must be considered as if the vehicle by which Ms Garde-Wilson was prosecuted was a criminal proceeding[9] even if, strictly speaking, the Court's procedural rules treat it as being a civil proceeding.
[7](1995) 183 CLR 525.
[8]Hinch v Attorney-General for Victoria (1987) 164 CLR 15, 49 (Deane J) referring to In re Maria Annie Davies (1888) 21 QBD 236, 238 (Mathew J).
[9]Or at least a proceeding in which a conviction was imposed and that conviction was treated as the penalty.
Where then is the Crown’s right to appeal, if it has one, to be found? As the common law recognised no right of appeal,[10] if there is to be an appeal available to the Crown in this case it must be authorised by an applicable statutory provision. That relied upon by the DPP is s 17(2) of the Supreme Court Act 1986, which is in the following terms:
“(2)Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.”
[10]A-G v Sillem (1864) 10 HL Cas 704, 720; 11 ER 1200, 1207-8 (Lord Westbury LC); S.A. Land Mortgage & Agency Co Ltd v The King (1922) 30 CLR 523, 551-3 (Isaacs J); Achilles v Housing Commission [1960] VR 164 (Dean J).
On its face this section confers a general right of appeal to this Court on a disappointed litigant (and relevantly interested non-party) affected by any determination – in any matter - of the Trial Division of the Supreme Court constituted by a Judge. If, as the Director argued, this provision applies to a contempt case brought by him on behalf of the Crown, it would confer a right of appeal by him against an acquittal as well as an appeal in respect of a sentence imposed upon conviction. But the Crown enjoys no right to appeal an acquittal in any other circumstance except when the acquittal is by the Magistrates' Court – and then only on a question of law[11] – or, exceptionally, pursuant to a grant of special leave to appeal by the High Court.[12]
[11]Section 92 Magistrates' Court Act 1989.
[12]R v Glennon (1992) 173 CLR 592, 595 (Mason CJ and Toohey J), (Brennan and Dawson JJ agreeing).
The anomaly created by a construction of s 17(2) which allowed the Crown an appeal in a case of contempt is further compounded when it is realised that contempt of court may be prosecuted either by the procedure which was used in this case (regulated by RSC O.75) or, because criminal contempt was an indictable misdemeanour at common law, by trial on indictment. Although trial on indictment for contempt of court is now seldom if ever resorted to, it is still a theoretical possibility and, of course, after such a trial the Crown's right of appeal would be confined to the appeal against sentence conferred by s.567A of the Crimes Act 1958, but only when the conditions precedent to that right of appeal exist.
In Williams v The King[13] Dixon J described the statutory conferral of a prosecution power of appeal against a sentence passed by a trial court as being "a marked departure from the principles theretofore governing the exercise of penal jurisdiction."[14] Barwick CJ in Peel v The Queen[15] described the procedure as cutting across "time honoured concepts of criminal administration." Similar sentiments have been expressed by the High Court and this Court on many other occasions: see Whittaker v The King;[16] Reg v Tait;[17] Griffiths v R;[18] Malvaso v R;[19] Everett v R;[20] R v Clarke.[21]
[13](1933) 50 CLR 551.
[14]Ibid 561.
[15](1971) 125 CLR 447, 452.
[16](1928) 41 CLR 230, 248 (Isaacs J).
[17](1979) 46 FLR 386, 389.
[18](1977) 137 CLR 293, 310 ( Barwick CJ).
[19](1989) 168 CLR 227, 234 (Deane and McHugh JJ).
[20](1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ) and the cases there cited.
[21][1996] 2 VR 520, 522 (Charles JA).
It can thus be confidently stated that a Crown right of appeal against sentence or against acquittal - is "contrary to fundamental principle" or "a departure from the general system of law"; phrases used by O’Connor, J in Potter v Minahan where his Honour expressly approved a passage from the fourth edition of Maxwell on Statutes in the following terms:-
“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.“[22]
[22](1908) 7 CLR 277, 304. See also R v Secretary of State for the Home Department; ex parte Pierson [1998] AC 539, 587-589 (Lord Steyn); R v Secretary of State for the Home Department; ex parte Simms [2000] 2 AC 115, 131 ( Lord Hoffman).
The High Court has frequently endorsed this statement of principle: e.g. Bropho v Western Australia;[23] Coco v R;[24] Plaintiff S157/2002 v The Commonwealth[25] and the statement by Gleeson CJ in Al-Kateb v Godwin[26] where his Honour, although in dissent as to the outcome of that case, strongly endorsed the same principle.
[23](1990) 171 CLR 1.
[24](1994) 179 CLR 427.
[25](2003) 211 CLR 476, 492.
[26](2004) 219 CLR 562, 577.
Specifically, with respect to the right of the Crown to appeal, the full Federal Court in Thompson v Mastertouch TV Service Pty Ltd (No.3)[27] considered that the conferring of jurisdiction on a court "to hear and determine appeals" was not sufficient to displace the general presumption that the Crown has no right of appeal against an acquittal. See also Davern v Messel;[28] R v Snow.[29] The Court considered that the clearest possible terminology would be required to confer such a right. Similarly, with respect to appeals against sentence, the High Court has repeatedly held that a specifically conferred power is required: Rohde v DPP;[30] Byrnes v R[31] and Bond v R.[32] Express authorisation of such an appeal by the legislature is required to displace the general presumption against the Crown enjoying a right of appeal, even in respect of sentence.
[27](1978) 38 FLR 397.
[28](1984) 155 CLR 21.
[29](1915) 20 CLR 315.
[30](1986) 161 CLR 119.
[31](1999) 199 CLR 1, 26-27.
[32](2000) 201 CLR 213, 223.
There is another principle of statutory construction which leads to a conclusion that s.17(2) of the Supreme Court Act 1986 does not confer a right of appeal on the Crown in respect of a sentence imposed following a summary conviction for contempt. It is, in one sense, a more general expression of the specific principle already referred to. It is that wide or general words in a statute will be read down so as to avoid radical or substantial change to existing law in the absence of a clear contrary intention. This is particularly so where long existing rights may be adversely affected: Union of South Africa (Minister of Railways and Harbours) v Simmer and Jack Pty Mines Ltd;[33] Chertsey Urban District Council v Mixnam's Properties Ltd.[34] In the first of those cases, a very wide power of expropriation was read down to ensure that it could only occur where compensation was paid to a citizen whose property was compulsorily acquired. In the second, a very wide power granted to a local authority to impose conditions on licences which it issued to operate caravan sites was read down to eliminate those conditions which were not directly connected with the letting of the sites. Each of these cases was referred to by the High Court in Smith v R[35] as supporting the above proposition.
[33][1918] AC 591, 596.
[34][1965] AC 735, 751.
[35](1994) 181 CLR 339, 346.
To construe the very general right of appeal conferred by s.17(2) upon a person affected by a determination of the Trial Division of the Supreme Court as extending to the Crown in respect of a sentence imposed by the Court in a contempt case would radically alter the general law to the detriment of the subject. To achieve such a result the legislature would have needed to use specific language directed specifically to an extension of the Crown’s right to appeal in a criminal case to a case such as the present. It not having done so, notwithstanding the general words of s.17(2), it follows that the Crown has no right of appeal in this case. This appeal instituted by the Director of Public Prosecutions on behalf of the Crown is incompetent and should be dismissed.
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