Hammond v Aboudi
[2005] WASCA 204
•3 NOVEMBER 2005
KEVIN JAMES HAMMOND (a person appointed by commission dated 23 December 2003 to be Commissioner of the Corruption and Crime Commission) -v- ABOUDI [2005] WASCA 204
| (2005) 31 WAR 533 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 204 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:1501/2005 | 25 AUGUST 2005 | |
| Coram: | WHEELER JA MCLURE JA LE MIERE AJA | 3/11/05 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| A | |||
| PDF Version |
| Parties: | KEVIN JAMES HAMMOND (a person appointed by commission dated 23 December 2003 to be Commissioner of the Corruption and Crime Commission) HASANEEN MOSA ISSA ABOUDI MARCO SORANI |
Catchwords: | Contempt of Corruption and Crime Commission Whether a breach of s 160 of Corruption and Crime Commission Act 2003 Effect of s 163 Certificate Constructive failure to answer questions Meaning of requirement to answer Whether adequate identification of the contempt |
Legislation: | Corruption and Crime Commission Act 2003 (WA), s 7A, s 7B, s 46, s 47, s 48, s 49, s 76, s 143, s 160, s 163, s 164(1), s 168 Criminal Code (WA) Royal Commissions Act 1968 (WA), s 14 Rules of the Supreme Court 1971 (WA), O 55 r 2, O 55 r 5(1) |
Case References: | Australian Building Construction Employees' and Builders Labourers' Federation & Ors v Viner & Ors (1982) 63 FLR 253 Brading v Thornton (1947) 75 CLR 140 Carew-Reid v Carew Corp Ltd, unreported; FCt of SCt WA; Library No 930254; 23 April 1993 Coward v Stapleton (1953) 90 CLR 573 Gabriel v Ah Mook (1924) 34 CLR 591 Keeley v Brooking (1979) 143 CLR 162 Macarone v McKone (1986) 1 Qd R 284 MacGroarty v Clauson (1989) 167 CLR 251 Powell v Battle [1963] WAR 32 R v Brisbane TV Ltd; Ex parte Criminal Justice Commission (1996) 2 Qd R 41 R v Parry, unreported; FCt SCt of WA; Library No 970196; 1 May 1997 Re B (JA) (an infant) (1965) Ch 1112 Saxe v Kellett [1970] VR 600 Wood v Galea (1996) 84 A Crim R 274 Ex parte Bellanto; re Prior [1963] SR (NSW) 190 Lewis v Ogden (1984) 153 CLR 682 McGuinness v The Attorney-General of Victoria (1940) 63 CLR 73 R v Eades (No 1) (1991) 6 WAR 402 R v Jones (1990) 58 A Crim R 471 Witham v Holloway (1995) 183 CLR 525 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KEVIN JAMES HAMMOND (a person appointed by commission dated 23 December 2003 to be Commissioner of the Corruption and Crime Commission) -v- ABOUDI [2005] WASCA 204 CORAM : WHEELER JA
- MCLURE JA
LE MIERE AJA
Alleged contempt of KEVIN JAMES HAMMOND (a person appointed by commission dated 23 December 2003 to be Commissioner of the Corruption and Crime Commission) by HASANEEN MOSA ISSA ABOUDI
- Applicant
AND
HASANEEN MOSA ISSA ABOUDI
Contemnor
(Page 2)
MATTER : The Corruption and Crime Commission Act 2003, s 163
Alleged contempt of KEVIN JAMES HAMMOND (a person appointed by commission dated 23 December 2003 to be Commissioner of the Corruption and Crime Commission) by MARCO SORANI
- Applicant
AND
MARCO SORANI
Contemnor
Catchwords:
Contempt of Corruption and Crime Commission - Whether a breach of s 160 of Corruption and Crime Commission Act 2003 - Effect of s 163 Certificate - Constructive failure to answer questions - Meaning of requirement to answer - Whether adequate identification of the contempt
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 7A, s 7B, s 46, s 47, s 48, s 49, s 76, s 143, s 160, s 163, s 164(1), s 168
Criminal Code (WA)
Royal Commissions Act 1968 (WA), s 14
Rules of the Supreme Court1971 (WA), O 55 r 2, O 55 r 5(1)
Result:
Applications dismissed
(Page 3)
Category: A
Representation:
CIV 1501 of 2005
Counsel:
Applicant : Mr G T W Tannin SC & Mr J F O'Sullivan
Contemnor : Mr D P A Moen
Solicitors:
Applicant : State Solicitor's Office
Contemnor : Jeremy Noble
CIV 1502 of 2005
Counsel:
Applicant : Mr G T W Tannin SC & Mr J F O'Sullivan
Contemnor : In person
Solicitors:
Applicant : State Solicitor's Office
Contemnor : In person
Case(s) referred to in judgment(s):
Australian Building Construction Employees' and Builders Labourers' Federation & Ors v Viner & Ors (1982) 63 FLR 253
Brading v Thornton (1947) 75 CLR 140
Carew-Reid v Carew Corp Ltd, unreported; FCt of SCt WA; Library No 930254; 23 April 1993
Coward v Stapleton (1953) 90 CLR 573
Gabriel v Ah Mook (1924) 34 CLR 591
Keeley v Brooking (1979) 143 CLR 162
Macarone v McKone (1986) 1 Qd R 284
MacGroarty v Clauson (1989) 167 CLR 251
Powell v Battle [1963] WAR 32
(Page 4)
R v Brisbane TV Ltd; Ex parte Criminal Justice Commission (1996) 2 Qd R 41
R v Parry, unreported; FCt SCt of WA; Library No 970196; 1 May 1997
Re B (JA) (an infant) (1965) Ch 1112
Saxe v Kellett [1970] VR 600
Wood v Galea (1996) 84 A Crim R 274
Case(s) also cited:
Ex parte Bellanto; re Prior [1963] SR (NSW) 190
Lewis v Ogden (1984) 153 CLR 682
McGuinness v The Attorney-General of Victoria (1940) 63 CLR 73
R v Eades (No 1) (1991) 6 WAR 402
R v Jones (1990) 58 A Crim R 471
Witham v Holloway (1995) 183 CLR 525
(Page 5)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 MCLURE JA: The Commissioner of the Corruption and Crime Commission brings proceedings for contempt of the Corruption and Crime Commission ("Commission") against Marco Sorani and Hasaneen Mosa Issa Aboudi. Mr Sorani appeared in person. Mr Aboudi appeared by counsel who was retained just prior to the hearing.
3 On 25 February 2005, on an application by the Commissioner of Police, the Commission made an exceptional powers finding pursuant to s 46 of the Corruption and Crime Commission Act 2003 (WA) ("Act"). The subject matter of the application concerned events that occurred during a physical altercation between various people in the course of an incident at the Metro City Night Club ("nightclub") at 146 Roe Street, Northbridge in the early hours of 23 January 2005 ("the incident"). In the course of the incident, Mr Troy Mercanti was stabbed and Mr Nabil Dabag was shot. A number of people were arrested and charged as follows:
Nabil Dabag - grievous bodily harm (s 297 of the Criminal Code);
Troy Mercanti - acts intended to cause grievous bodily harm (s 294 of the Criminal Code)
John Kizon - accessory after the fact to in indictable offence, namely, acts intended to cause grievous bodily harm (s 562(1) of the Criminal Code) and attempt to pervert the course of justice (s 143 of the Criminal Code);
David Morris - accessory after the fact to an indictable offence, namely, acts intended to cause grievous bodily harm (s 562(1) of the Criminal Code);
Adam Lloyd - attempt to pervert the course of justice (s 143 of the Criminal Code).
4 Mr Sorani and Mr Aboudi were not charged with any offence related to the incident.
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5 After making the exceptional powers finding on 25 February 2005, the Commission on 4 March 2005 made an order pursuant to s 48 of the Act issuing a summons to Mr Sorani and Mr Aboudi requiring them to attend for examination on 9 March 2005.
6 Mr Sorani and Mr Aboudi were separately examined on that date ("first examinations"). The Commissioner presided at each examination. Mr Tannin SC questioned each man. Each man was shown a compilation of digital surveillance images of them at the nightclub in the early hours of 23 January 2005. The digital images show Mr Sorani:
(a) assisting Mr Mercanti when he was stabbed;
(b) holding Mr Dabag by the arm and walking him along the tunnel and being present when Mr Dabag was shot;
(c) walking past Mr Dabag while he was on the ground after having been shot;
(d) participating in a discussion with a group of men, including Mr Kizon, Mr Lloyd and Mr Morris; and
(e) gesturing with his arms with persons in the vicinity of Mr Dabag.
7 The digital images show Mr Aboudi:
(a) walking past Mr Dabag while he was on the ground after having been shot; and
(b) participating in a discussion with a group of men, including Mr Kizon, Mr Lloyd and Mr Morris.
8 In answer to a number of questions asked of them by Mr Tannin, Mr Sorani and Mr Aboudi responded, in effect, that they were unable to remember and attributed their lack of recollection to intoxication.
9 By letters dated 7 April 2005 to Mr Sorani and Mr Aboudi, the Commissioner advised both men of his preliminary view that they had falsely testified that they had no recollection of the incident, that the Commissioner would give them another opportunity to testify and that if he remained of the preliminary view, he would consider whether to present a certificate to this Court alleging that the conduct was in contempt of the Commission.
(Page 7)
10 Pursuant to s 48 of the Act, Mr Sorani and Mr Aboudi were summonsed to appear before the Commission on 12 April 2005. Mr Sorani and Mr Aboudi were again separately examined by the Commissioner with Mr Tannin asking questions ("second examinations"). The men confirmed their lack of recollection. Full transcripts of all examinations were in evidence. Mr Sorani and Mr Aboudi were not legally represented at the examinations.
The Scheme of the Act
11 One of the purposes of the Act is to combat and reduce the incidents of organised crime (s 7A). That purpose is to be achieved by, among other things, empowering the Commission to authorise the use of investigative powers not ordinarily available to the police ("exceptional powers") to effectively investigate particular cases of organised crime (s 7B(2)). The exceptional powers are in Divs 2, 3, 4 and 5 of Pt 4 of the Act. However, those divisions only apply if the Commission has made an exceptional powers finding under s 46 of the Act.
12 The Commission can only make an exceptional powers finding if it is satisfied that the grounds described in s 46(1) exist. Two of the three grounds in s 46(1) are:
(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.
13 A section 5 offence is defined as a Sch 1 offence committed in the course of organised crime. Not all of the offences the subject of the charges arising out of the incident are Sch 1 offences. Of the charges laid arising out of the incident, only the Criminal Code offences of attempting to pervert the course of justice (s 143) and acts intended to cause grievous bodily harm (s 294) are Sch 1 offences.
14 The Commission having made an exceptional powers finding, it was open to the Commission, on the application of the Commissioner of Police under s 48 of the Act, to issue a summons under s 96 of the Act. As already noted, Mr Sorani and Mr Aboudi were summonsed on two occasions for examination. The examinations were conducted pursuant to s 49 of the Act which is headed "Examination of Witnesses by
(Page 8)
- Commissioner of Police". In participating in an organised crime examination, the Commissioner of Police is to be represented by a legal practitioner instructed for that purpose (s 49(1)). Section 49(2) provides:
"A person representing the Commissioner of Police may, so far as the Commissioner thinks proper, examine any witness summoned under an organised crime summons on any matter that the Commission considers relevant to the investigation."
"(1) A person served with a summons under section 96 requiring the person to attend and give evidence who -
(a) …; or
(b) fails to answer any question relevant to the investigation that the Commission requires the person to answer,
is in contempt of the Commission."
16 Section 163 concerns punishment of contempt of the Commission and materially provides:
"(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."
17 Under s 168 of the Act, a person who at an examination before the Commission gives evidence that the person knows is false or misleading in a material particular is guilty of a crime, the maximum penalty for which is imprisonment for 5 years and a fine of $100,000. However, an
(Page 9)
- act may be punished as a contempt of the Commission even though it could be punished as an offence: s 164(1) of the Act.
The Notices of Motion
18 In the notice of motion initiating the proceedings against Mr Sorani, the Commissioner seeks an order that he do stand committed to prison or be fined:
" … for the following alleged contempts of the [Commission]:
1. MARCO SORANI having been served with a summons under section 96 of the [Act] requiring him to attend and give evidence, failed to answer questions relevant to the investigation that the Commission required him to answer on 9 March 2005, contrary to section 160(1)(b) of that Act;
2. MARCO SORANI having been served with a summons under section 96 of the [Act] requiring him to attend and give evidence failed to answer questions relevant to the investigation that the Commission required him to answer on 12 April 2005, contrary to section 160(1)(b) of that Act;
particulars of which were set out in a Certificate presented by the [Commission] … pursuant to s 163 of the [Act] (the Certificate), on the grounds that the conduct as aforesaid was likely or calculated or had a tendency to prejudice, obstruct or interfere with the due administration of justice."
19 The Certificate ("Sorani Certificate") is annexed to the notice of motion. The Sorani Certificate materially states:
"I CERTIFY that the acts or omissions detailed below constitute the alleged contempts:
• On 25 February 2005 in relation to an application by the Commissioner of Police I made an 'exceptional powers finding' pursuant to section 46 of the Act to enable the 'exceptional powers' in Divisions 2, 3, 4 and 5 of the Act to be utilised to investigate organised crime.
• In the exercise of the exceptional powers, Marco Sorani was summoned in accordance with section 48 of the Act
- to attend before the Commission to testify on 9 March 2005.
- • Digital surveillance images tendered as Exhibit A in the proceedings provided vision of the tunnel area of the Metro City Night Club, 146 Roe Street, Northbridge in the early morning of 23 January 2005. In particular the digital surveillance images showed Mr Sorani:
(a) actively intervened to assist Mr Mercanti when he was stabbed by restraining Mr Dabag;
(b) held Mr Dabag by the arm and walked him along the tunnel and was present when Mr Dabag was shot;
(c) walked past Mr Dabag while he was on the ground injured after having been shot;
(d) participated in a discussion with a group of men including Mr Kizon, Mr Lloyd and Mr Morris;
(e) gestured with his arms in a deliberate manner indicating conscious communication with persons in the vicinity of Mr Dabag.
• On 9 March 2005 Mr Sorani testified that he had no memory of the events set out above because he was intoxicated.
• Mr Sorani was summonsed in accordance with section 48 of the Act to reappear before the Commission on 12 April 2005. Mr Sorani again testified that he had no memory of the events set out above because he was intoxicated.
• Having regard to:
1. Mr Sorani's voluntary, controlled and steady movement on the digital surveillance images which evidenced he was fully conscious, in control of his actions and not heavily intoxicated; and
2. Mr Sorani's answers to questions asked of him and uncooperative demeanour whilst testifying
(Page 11)
- Mr Sorani has, contrary to section 160(1)(b) of the Act, failed to answer questions directed to the events he witnessed (as set out above) in the tunnel of the Metro City Night Club, 146 Roe Street, Northbridge in the early hours of 23 January 2005."
20 The notice of motion initiating proceedings against Mr Aboudi is in materially the same terms as that for Mr Sorani. A s 163 Certificate is also attached to that notice of motion. The Aboudi Certificate is in the same terms as the Sorani Certificate, save for what the digital images showed. In that respect the Aboudi Certificate states:
" … in particular the digital surveillance images showed Mr Aboudi:
(a) walked past Mr Dabag while he was on the ground injured after having been shot;
(b) participated in a discussion with a group of men including Mr Kizon, Mr Lloyd and Mr Morris;
(c) remained in the tunnel in the aftermath of the incidents in which Mr Mercanti and Mr Dabag were injured."
Jurisdiction and Procedure
21 Under s 163(3) of the Act, the Supreme Court has jurisdiction to deal with contempt as if it were a contempt of the Supreme Court. Further, under s 163(6), a person required to comply with a summons served under s 96 of the Act has the same protection, and is subject to the same liabilities in any civil or criminal proceedings, as a witness in any case tried in the Supreme Court.
22 As this Court has jurisdiction as if it were a contempt of this Court, O 55 of the Rules of the Supreme Court1971 ("Rules") applies. Order 55 r 2 provides that the power of the Court to punish for contempt may be exercised by an order of committal. Order 55 r 5(1) requires the notice of motion to specify the contempt of which the contemnor is alleged to be guilty. This rule reflects the well-recognised principle of law that no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated: Coward v Stapleton (1953) 90 CLR 573 at 579 - 580; Australian Building Construction Employees' and Builders Labourers' Federation
(Page 12)
- & Ors v Viner & Ors (1982) 63 FLR 253 at 274 ("BLF"). This is a matter to which I will return.
The Effect of the Certificates
23 Each Certificate is prima facie evidence of the matters certified in it. When used in statutes, prima facie evidence usually means that in the absence of further evidence, the prima facie proof becomes conclusive and the party giving it discharges his onus: Powell v Battle [1963] WAR 32; Saxe v Kellett [1970] VR 600; J D Heydon Cross on Evidence, 7th Australian edition [1605], FN 720.
24 In the cases of Mr Sorani and Mr Aboudi, the matters certified include primary facts, factual summaries, inferences, opinions and conclusions, including a conclusion on the ultimate question of contempt. Under s 163(1) a certificate can go no further than "setting out the details of the act or omission that the Commission considers constitutes the alleged contempt". It may arguably be inferred from this, that the Certificate must be confined to statements of fact and does not extend to statements of law or mixed law and fact: see Brading v Thornton (1947) 75 CLR 140; Macarone v McKone (1986) 1 Qd R 284; R v Brisbane TV Ltd; Ex parte Criminal Justice Commission (1996) 2 Qd R 41. However, it is unnecessary to decide the question. It is sufficient for present purposes to conclude that, based on the terms of s 163(1) and (6), the question whether or not the acts or omissions the subject of the Certificates constitute contempt is a matter for this Court.
25 Further, where, as here, the applicant has adduced evidence as well as relying on a certificate, this Court must have regard to all of the evidence in drawing conclusions: Gabriel v Ah Mook (1924) 34 CLR 591 at 594.
26 In the balance of these reasons I propose to address the issues that arose in the course of the hearing. The first issue relates to the validity of the exceptional powers finding.
Exceptional Powers Finding
27 The Commissioner handed down reasons for decision with respect to issuing the Certificates. The reasons state that the Commissioner of Police sought a finding as to whether the grounds set out in s 46(1) of the Act exist in that, inter alia:
"(a) there are reasonable grounds for suspecting that Section 5 offences namely acts intended to cause grievous bodily
- harm under section 294 of the Criminal Code and an attempt to pervert the course of justice under section 143 of the Criminal Code, have been or are being committed".
28 The Commission's finding in relation to the requirement in s 46(1)(a) is in the same terms as quoted.
29 A section 5 offence is a Sch 1 offence committed in the course of organised crime. There is no express reference to the nominated offences being committed in the course of organised crime in either the application to the Commission or its finding.
30 However, it is apparent from the Commissioner's reasons that he had before him affidavit evidence regarding the activities of organisations known as Coffin Cheaters, Sword Boys and Scorpion Boys. After referring to those organisations, he then states his conclusion "that there were reasonable grounds to activate the exceptional powers as set out in section 46 of the Act". Having regard to the express reference to section 5 offences in the finding and the evidence and conclusion referred to by the Commissioner in his reasons, I am satisfied that he had regard to, and was satisfied about, all relevant matters in making his exceptional powers finding, including whether the nominated offences were committed in the course of organised crime.
The Elements of the Contempt Charges
31 A breach of s 160(1)(b) of the Act is established if a person served with a summons under s 96 of the Act:
(1) fails to answer any question;
(2) the question is relevant to the investigation; and
(3) the Commission requires the person to answer the question.
32 I start with the first element, being failure to answer. The Certificates state that each man testified in the examinations that he had no memory of specified events because he was intoxicated. Thus, each man purported to provide an answer. In such circumstances, there will be a failure to answer if the Court is satisfied beyond reasonable doubt that the answer is (1) knowingly false and (2) that the person intended to leave the question or questions unanswered; that is, he intended not to give a real answer: Keeley v Brooking (1979) 143 CLR 162 at 166 per Barwick CJ, 172 per Stephen J and 178 per Mason and Aickin JJ.
(Page 14)
33 It is the second element that converts what would otherwise be perjury into a contempt. However, the general rule is that the appropriate response to false answers is a prosecution for perjury and that the jurisdiction to commit a witness for contempt in these circumstances is to be exercised with extreme caution: Coward v Stapleton at 579 - 580; Keeley v Brooking at 170.
34 The Commissioner in his reasons identified and applied the correct legal principle in determining whether there had been a failure to answer.
35 The second element of the offence of contempt under s 160(1)(b) of the Act is that the question must be relevant to the investigation. The applicant does not, in the notices of motion or in the Certificates, identify the specific questions that Mr Sorani and Mr Aboudi failed to answer. The inference from the Certificates is that the witness's response to all questions on the nominated subject matters was that he could not remember because he was intoxicated. I will assume for the moment that is borne out by the evidence, being the transcripts of the examinations.
36 Relevance is determined by reference to the scope of the investigation in question. Under s 47, the investigation can only be in relation to the section 5 offence or offences the subject of an exceptional powers finding by the Commission. Section 47 which deals with the scope of Divs 2 to 5 of Pt 4 of the Act. The examination power in s 49 is in Div 2. Section 47 provides:
"(1) The purpose of Divisions 2 to 5 is to facilitate the investigation of a section 5 offence.
(2) The investigation of an offence includes the investigation of a suspicion that the offence has been, or is being, committed.
(3) Divisions 2 to 5 apply if the Commission has made an exceptional powers finding in respect of the section 5 offence concerned."
37 The exceptional powers finding identified the relevant section 5 offences as acts intended to cause grievous bodily harm (s 294 of the Criminal Code) and attempt to pervert the course of the justice (s 143 of the Criminal Code). It is apparent from the Commissioner's reasons for decision that charges had already been laid against various persons involved in the incident at the time of the application for the exceptional
(Page 15)
- powers finding. As already noted, some of the charges were not for Sch 1 (and thus not section 5) offences.
38 For example, one of the matters in respect of which it was alleged Mr Sorani failed to answer concerned his active intervention to assist Mr Mercanti when he was stabbed by restraining Mr Dabag. Mr Dabag was not charged with a Sch 1 offence. Mr Tannin says this matter is relevant to the section 5 offences the subject of the exceptional powers finding as part of the res gestae; that is, it is relevant on account of its contemporaneity with the relevant section 5 offences. Whether or not that is correct can only be properly tested by reference to the specific questions the witness failed to answer. Furthermore, that was not the view of the Commissioner. At the commencement of the second examinations on 12 April 2005 the Commissioner identified the scope and purpose of the examinations as being to find out whether offences, not limited to the section 5 offences, had been committed. In addressing Mr Aboudi on 12 April 2005, the Commissioner said:
"The general scope and the purpose of this investigation is to find out whether certain offences were committed, that is, grievous bodily harm, attempt to pervert the course of justice and other offences have been committed at the Metro City Night Club in the early hours of the 23rd of June [sic] 2005."
39 The Commissioner made a substantially similar statement at the commencement of the examination of Mr Sorani on 12 April 2005. On that occasion he said the scope and purpose of the investigation was to establish whether certain offences were committed, namely, "acts intended to cause grievous bodily harm and other offences and an attempt to pervert the course of justice".
40 The Commission's statements as to scope and purpose raises questions as to the validity of the first and second examinations. That was not addressed at the hearing and can be taken no further without hearing from the parties. However, in view of the conclusion I have reached on the applications, it is unnecessary to do so.
41 The third element is that the Commission requires the person to answer the question. In ordinary circumstances, the person in control of the examination would inform a witness immediately after failing to answer the question that he or she was required to answer the question and of the consequences of the failure to comply with the requirement (see, for example, R v Parry, unreported; FCt SCt of WA; Library No 970196;
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- 1 May 1997 at 20 - 23). That immediacy will often not be possible or appropriate when the failure results from a deliberate falsehood coupled with an intention to evade answering.
42 The approach taken in this case was that at the commencement of each of the four examinations, the Commissioner informed the witness that if the witness failed to answer any question the Commissioner required him to answer, he would be in contempt of the Commission; that the witness may accept that when Mr Tannin asked the witness a question, he was doing so on behalf of the Commissioner and the witness must answer it; and that if the Commissioner was of the view that the witness should not answer the question, he would stop the question.
43 It is clear from the Commissioner's statement and the terms of the summons that Mr Tannin was acting in the capacity of counsel assisting the Commission under s 143 of the Act. Section 49 of the Act contemplates the Commissioner of Police participating in the examination by legal counsel and examining the witness. That is consistent with the purpose of the Act identified in s 7B(2) of giving the police exceptional investigation powers and the heading to s 49 (Examination of Witnesses by Commissioner of Police). In this case it appears the Commissioner of Police was not legally represented, did not participate in the examination and did not examine the witnesses at any of the examinations. A question arises as to whether s 49 requires a separation of the roles of the Commission and the police with the Commissioner of Police examining the witness and the examination being supervised and controlled by the Commission. However, as that issue was not raised or addressed at the hearing, I say nothing further about it.
44 At no stage in the course of questioning in the first examinations did the Commission require the witnesses to answer a specific question. In the Commissioner's letters of 7 April 2005 informing the witnesses of his preliminary view that they may be guilty of contempt, he identified the contempt as the provision of false answers, not the failure to answer.
45 Further, it is apparent from the questions asked at the second examinations that the Commission's focus was on the falsity of the answers at the earlier examinations rather than any failure to answer questions. The witnesses were asked whether they wanted to change or add to anything they had said in response to the questions at the first examination. The material parts of the examination starting with Mr Sorani, is as follows:
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- "MR TANNIN: Do you wish to add to, or change, or amend any part of your testimony on that occasion?
MR SORANI: No.
MR TANNIN: In the course of that inquiry, I showed you a surveillance tape.
MR SORANI: Yes, you did.
MR TANNIN: That tape showed you not only present, but intervening in a fight between Mr Mercanti and Mr Dabag?
MR SORANI: What intervening means?
MR TANNIN: Well - - -
COMMISSIONER HAMMOND: I'm sorry, I didn't hear that.
MR SORANI: I said what is meaning of the intervening?
MR TANNIN: You were there and you broke up the fight.
MR SORANI: That is what I saw too, yes.
MR TANNIN: Yes. But you couldn't remember what was said?
MR SORANI: I was too drunk. I don't recall it.
MR TANNIN: And you couldn't remember Mr Dabag stabbing Mr Mercanti?
MR SORANI: I was too drunk.
MR TANNIN: And you couldn't remember the knife in Mr Dabag's hand?
MR SORANI: I didn't see. No, I don't remember.
MR TANNIN: And you held Mr Dabag by the arm and walked him along the tunnel and you were present while Mr Dabag was shot. That was obvious from the video. But you couldn't remember that either?
COMMISSIONER HAMMMOND: Was that a no?
(Page 18)
- MR SORANI: No. Yes, I don't remember.
MR TANNIN: And you walked past Mr Dabag whilst he was on the ground but you couldn't remember that either?
MR SORANI: Yes.
MR TANNIN: And you were discussing matters with Mr Kizon and Mr Lloyd and Mr Morris but you have no memory of what the discussions were about?
MR SORANI: Yes.
MR TANNIN: And you gestured with your arms toward the vicinity of where Mr Dabag was lying, with your arms, both arms, out wide in the way I am gesturing to you now.
MR SORANI: Hm.
MR TANNIN: And that is shown on the video, but you have no memory of what you were doing, or why you were doing it, who you were communicating to?
MR SORANI: I was too drunk."
46 The same approach was taken with Mr Aboudi. Mr Tannin referred to the first examination and continued:
"MR TANNIN: … I showed you various aspects of the surveillance footage showing you walking past Mr Dabag while he was on the ground and also showing you participating in discussions with men, including Mr John Kizon, Mr Lloyd and Mr Morris and I showed you the surveillance footage that had you standing and walking and participating in activities in that area. Do you recall seeing that video?
MR ABOUDI: Yeah.
MR TANNIN: Sorry? Do you recall seeing the video?
MR ABOUDI: You showed me last time.
MR TANNIN: Yes. And I put to you then that you were not so intoxicated, it was obvious, as to be incapable of remembering but you insisted that you were.
(Page 19)
- MR ABOUDI: What is intoxicated?
COMMISSIONER HAMMOND: Drunk.
MR TANNIN: Drunk. You insisted that you were and we didn't get anywhere, did we?
MR ABOUDI: No that's right.
MR TANNIN: No.
MR ABOUDI: Excuse me, how do you know from the footage I'm not drunk?
MR TANNIN: Well, let me help you."
47 There was then a further exchange concerning proof of drunkenness, then the examination continued:
MR TANNIN: Let me just get - let's just deal with this directly. I've asked you a lot of questions, I've given you a lot of opportunities this morning. Do you want to add to or change or amend any part of the evidence you have so far given about the events of that night? Do you want to say anything more about it?
MR ABOUDI: What I - what I said last month, same. That's what I want to say.
MR TANNIN: The same as last month is what you would say today? Right. Thank you, sir."
48 Thus, the only occasions the Commissioner referred to the failure to answer a question was in his introductory remarks in opening at the commencement of each examination. The question is whether that satisfies the third element. In my view, it does not. The purpose of the third element of the offence is to ensure the witness knows his obligation and how it is to be satisfied. At no stage was Mr Sorani or Mr Aboudi advised that they had (constructively) failed to answer a question. A witness is unlikely to be aware without being told that an unsatisfactory answer can be a constructive failure to answer at law or that the Commission has regarded his answer as a constructive refusal. In such circumstances, the direction to answer must relate to a clearly identified question or group of questions. A general opening statement of a witness's duty to answer all questions unless the Commissioner says
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- otherwise is not a requirement that the witness answer the question or questions in issue in the examination and is not in compliance with the Act.
Identification of the Contempt
49 Where, as here, there is a statutory offence of contempt, the charge must, in the absence of a clear legislative intent to the contrary, distinctly identify the particular offence charged: MacGroarty v Clauson (1989) 167 CLR 251 at 255 - 256. The Act does not disclose a legislative intent to the contrary. Further, as already noted, O 55 r 5(1) of the Rules requires the notice of motion to specify the contempt.
50 What is sufficient particularity is a question of fact. It will be sufficient if it informs the contemnor of what exactly he or she is said to have done or omitted to do which constitutes the contempt: R v Pearce (supra); R v Parry (supra). The Full Court in R v Parry considered what is required when there has been a failure to answer a question. In that case, a journalist called to give evidence before a Royal Commission had refused to answer a question on the grounds he was guided by his professional code of ethics. Section 14(1) of the Royal Commissions Act 1968 (WA) provided that if a witness refused to answer any question relevant to the inquiry put to him by a Commissioner, he may be dealt with as if he were in contempt of the Supreme Court. The particulars in the notice of motion referred to the refusal to answer questions on specified subject matters and identified the relevant pages of the transcript of proceedings.
51 Counsel for Mr Parry submitted that where the contempt alleged was a refusal to answer a question, the notice of motion must specify the question as distinct from merely identifying the subject matter of the question which the alleged contemnor refused to answer. In Parry the questions were specifically identified in an outline of submissions relied on by the Crown. The Court considered two issues, namely, what was sufficient particularity where there was a refusal to answer a question and whether all relevant information had to be in the notice of motion.
52 The Full Court had earlier held in Pearce that the information to which the contemnor is entitled must be contained within the notice of motion itself: R v Pearce at 403, 406. Further, gaps in the substantive particulars required cannot be made good by referring to material contained in affidavits: Carew-Reid v Carew Corp Ltd, unreported; FCt of SCt WA; Library No 930254; 23 April 1993.
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53 With that background, the Chief Justice (with whom Franklyn and Murray JJ agreed) said in Parry at page 19:
"In my opinion, the particulars of the alleged contempts in this case were defective because merely indicating the pages of the transcript on which the relevant questions could be found was not a sufficiently specific identification of them. The relevant portions of the transcript were not incorporated in the motion or in a schedule attached to it so that they fell within the four corners of the notice. Merely specifying the pages in the transcript left the contemnors and those advising them to work out for themselves by reading the transcript which were the relevant questions relied upon. This was of more significance in this case because of the particular language of s 14(1) which referred to a refusal to answer a question put by the Commissioner which was relevant to the inquiry."
54 As the alleged contemnor had been put on notice of the specific questions, the Full Court in Parry granted the Crown leave to amend the notice of motion to incorporate by reference the questions identified in the Crown's submissions.
55 In this case, the Certificates are incorporated by reference in the notices of motion. The question is whether the information in the Certificates sufficiently particularises the charges. They demonstrably fail to meet the requirement identified in Parry that the particulars contain the questions that the witness failed to answer. However, if there is only a technical irregularity that does not in any way prejudice the contemnors, it would be open to the Court to waive the irregularity or permit an amendment at a late stage if that was sought: R v Parry at p 18 citing Re B (JA) (an infant) (1965) Ch 1112 at 1118 per Cross J. There is no application to amend in this case.
56 Mr Tannin contended that the description of the subject matters in the Certificates was adequate identification. In my view that is not so. Two examples from the transcript will suffice. Mr Sorani was being examined about the shooting of Mr Mercanti as follows:
"Mercanti was shot five times in front of you - sorry, Dabag was shot five times in front of you. You telling us you didn't see it?---I did not see it.
Where were you?---I don't know. Maybe I left.
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- You saw a man shot at point blank range in the legs and the arm. There were two weapons. Two firearms. Did you have a firearm?---No.
Did Kizon have a firearm?---No idea.
Did Mercanti have a firearm?---I have no idea.
MR TANNIN: There's a photograph of him with a firearm coming towards you while there you are with Mr Kizon holding Dabag. You never let him go, did you?---I have no idea.
He didn't run off, did he?---Who?
Dabag?---I don't remember.
He was shot?---I know that.
Did you see him on the ground after he was shot?---I don't remember.
Did you see people bashing him when he was on the ground?---I don't remember.
Did you see yourself chatting to Mr Kizon after the shooting?---I don't remember.
What happened to Mr Dabag's knife?---I don't know if he had a knife.
You saw him stabbing with it?---I did not see that.
You were holding Dabag on his left side and you stayed with Dabag. Why did you hold Dabag and stay with him?---I don't remember. I don't recall.
Why did you hold him?---I don't know if I hold him.
Why were you holding him? Sorry, I didn't hear you. Why were you holding him?---I say I don't remember.
But you could see - - -?---Now I can see, yes.
Yeah. Why were you holding him?---I'm telling you I don't remember.
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- You were holding him because he'd been in a fight with Mr Mercanti and you were pulling him away with Mr Kizon?---Look like it in the pictures I'm just trying to make a peace.
Yeah. And the next thing that happened was Mercanti came toward him with a gun, whilst you and Kizon were holding him, and shot him, wasn't it?---I have no idea."
57 On a number of occasions in the above exchange Mr Sorani did not merely claim that he had no memory of the events. For example, he said he did not see Mr Dabag being shot and he did not know whether Mr Kizon or Mr Mercanti had a firearm. The inference from the Sorani Certificate is that his answers to all questions on the specified events were that he had no memory of the events. That inference is not borne out by the transcript. Accordingly, it is unclear whether the Commissioner contends that Mr Sorani's answer that he did not see Mr Dabag being shot is a constructive refusal to answer. Further, it is also unclear whether Mr Sorani's answers that he had no idea whether Mr Kizon and Mr Mercanti had a firearm is alleged to be a constructive refusal to answer (they may be a positive statement of lack of knowledge or a failure of recollection).
58 There are similar difficulties with the first examination of Mr Aboudi, as appears from the following transcript:
"Okay. And are you telling me that you have no memory of what went on down in the tunnel?---Not at all.
You see, you now see this picture of you, so will you accept that you were in the tunnel that night?---See - - looks like that I was there. I was there.
Yeah?---I don't know because what happened like from Onyx Bar I come. I was drunk. I get inside and start drinking with the boys. Then we left. Then when I got home I get a phone call. They say, 'Nabil has been shot,' and they - -
I'm sorry. The- -?---They say, 'Nabil Dabag's been shot and he's in hospital.'
COMMISSIONER: Oh, yes?---I was shocked till the next day morning.
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- So youget a telephone call which says, 'Nabil is shot'?---Yeah, Nabil been shot.
And do you then - - what do youthen do?---I been shocked.
Eh?---I been shocked. What I going to do?
I'm sorry. I didn't understand you?---I been shocked."
59 Mr Tannin then refers to the digital surveillance images and says to the witness that the photograph showed him walking towards the body 60 seconds after Mr Dabag was shot. He then says he did not remember anything. The examination continues:
"COMMISSIONER: …
That photograph was taken about 1 minute after Dabag was shot. Dabag lay wounded in front of where you are walking, just metres in front of it, and are you saying that the only time you knew about it was after you went home to Balga and got a phone call?---Yeah.
That's just not true. It can't be?---Wherever you want to take it is up to you. What I'm saying is truth. I say I'm drunk. I was drunk and I don't remember nothing."
60 It is unclear whether the first segment of the examination in which the witness says he was at home when he first heard that Mr Dabag was shot is the subject of the contempt charge.
61 In the second examination of Mr Sorani, the questions were framed to confirm the evidence given at the first examination. At his second examination, Mr Aboudi was not asked questions about the events on the night in question but was simply asked whether he wanted to add or change what he had said previously. It is more accurate to characterise the questions at the second examinations as relating to what was said at the first examinations. In any event, the problems with identifying the relevant questions in the first examinations consequently taint the second examinations.
62 The irregularity is not merely technical; the contemnors are materially prejudiced by the failure to specify the questions they failed to answer. The failure to identify the questions means the relevance of the questions to the investigation cannot be adequately tested. Furthermore, there needs to be certainty as to the specific questions the subject of the
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- charges so the defendants know precisely what is required in the event they were minded to purge any proven contempt (as to which, see Wood v Galea (1996) 84 A Crim R 274).
63 The Commission's adverse findings about the witnesses' refusal to answer many of the questions may be thought to be unassailable. However, this Court's duty is clear. As stated by Evatt and Deane JJ in the BLF case (at 212):
"Disregard of the procedural safeguards which the law requires to be observed in proceedings for criminal contempt of Court cannot, however, be ignored … for the reason that it is of the view that it is probable that no harm was done or that the accused person would probably have been found guilty in any event."
Conclusion
64 I have concluded that the Commission has not established all the elements of the statutory offence of contempt. In particular, it did not require the witnesses to answer the questions to which there had been a constructive failure to answer. Furthermore, the notices of motion are defective in failing to sufficiently identify the questions the subject of the contempt charges. Accordingly, I would dismiss the applications.
65 LE MIERE AJA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree that the applications should be dismissed for the reasons stated by her Honour.
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