Kennedy v Lovell

[2002] WASCA 226

KENNEDY -v- LOVELL [2002] WASCA 226

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 226
Court:	THE FULL COURT (WA)
Case No:	CIV:2012/2002	Heard:	9 AUGUST 2002
Coram:	MALCOLM CJ MURRAY J STEYTLER J	Delivered:	15/08/02
No of pages:	23	Judgment Part:	1 of 1
Result:	Fines totalling $30,000 imposed
Category:	A
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Parties:	THE HONOURABLE GEOFFREY ALEXANDER KENNEDY AO QC, THE ROYAL COMMISSIONER APPOINTED BY HIS EXCELLENCY THE GOVERNOR TO CONDUCT AN INQUIRY INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY ANY WESTERN AUSTRALIAN POLICE OFFICERS AND OTHER MATTERS AVON LOVELL
Catchwords:	Criminal law and procedure Sentencing Contempt Failure to attend before Royal Commission in response to summons After subsequently attending the Commission refusal to be sworn to give evidence Leaving the Commission and failing to attend thereafter without having been released
Legislation:	Criminal Code (WA), s 7 Rules of the Supreme Court 1971 (WA), O 55 r 2(1) Sentencing Act 1995 (WA), s 3(3), s 6, s 35(1)
Case References:	Attorney General (NSW) v Whitely (1993) 31 NSWLR 314 C v Registrar, Court of Appeal, unreported; Court of Criminal Appeal (NSW); 19 December 1995 Close (1992) 31 NSWLR 743 Dodd (1991) 57 A Crim R 349 Fuller, unreported; Court of Criminal Appeal (NSW); 7 November 1994 GDR (1994) 35 NSWLR 376; 75 A Crim R 319 Hamersley Iron Pty Ltd v Lovell & Anor, unreported; FCt SCt of WA; Library No 980397; 16 July 1998 Hamersley Iron Pty Ltd v Lovell & Or, unreported; FCt SCt of WA; Library No 980397; 16 July 1998 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Parry (1997) 92 A Crim R 295 Phelan (1993) 66 A Crim R 446 Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 R v Aristodemu, unreported; CCA (NSW); 30 June 1994 R v Pearce (1992) 7 WAR 395 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Registrar of the Court of Criminal Appeal v Gilby, unreported; Court of Criminal Appeal (NSW); 20 August 1991 Registrar, Court of Criminal Appeal v Craven [No 2] (1995) 120 FLR 464; 80 A Crim R 272 Smith (1991) 25 NSWLR 1 Von Doussa v Owens [No 3] (1982) 31 SASR 116 Wood v Galea (1995) 79 A Crim R 567 Wood v Galea (1996) 84 A Crim R 274 Wood v Galea (No 2), unreported; SCt of NSW; Admin Law Div; No 30049 of 1995 Wood v Staunton [No 5] (1995) 86 A Crim R 183 Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KENNEDY -v- LOVELL [2002] WASCA 226 CORAM : MALCOLM CJ

MURRAY J
STEYTLER J

HEARD : 9 AUGUST 2002 DELIVERED : 15 AUGUST 2002 FILE NO/S : CIV 2012 of 2002 BETWEEN : THE HONOURABLE GEOFFREY ALEXANDER KENNEDY AO QC, THE ROYAL COMMISSIONER APPOINTED BY HIS EXCELLENCY THE GOVERNOR TO CONDUCT AN INQUIRY INTO WHETHER THERE HAS BEEN ANY CORRUPT OR CRIMINAL CONDUCT BY ANY WESTERN AUSTRALIAN POLICE OFFICERS AND OTHER MATTERS

Applicant

AND

AVON LOVELL
Respondent

(Page 2)

Catchwords:

Criminal law and procedure - Sentencing - Contempt - Failure to attend before Royal Commission in response to summons - After subsequently attending the Commission refusal to be sworn to give evidence - Leaving the Commission and failing to attend thereafter without having been released

Legislation:

Criminal Code (WA), s 7

Rules of the Supreme Court 1971 (WA), O 55 r 2(1)
Sentencing Act 1995 (WA), s 3(3), s 6, s 35(1)

Result:

Fines totalling $30,000 imposed

Category: A

Representation:

Counsel:

Applicant : Ms J C Pritchard
Respondent : Mr M L Bennett & Mr K M Penkin

Solicitors:

Applicant : State Crown Solicitor
Respondent : Kevin Penkin & Associates

Case(s) referred to in judgment(s):

Attorney General (NSW) v Whitely (1993) 31 NSWLR 314
C v Registrar, Court of Appeal, unreported; Court of Criminal Appeal (NSW); 19 December 1995
Close (1992) 31 NSWLR 743
Dodd (1991) 57 A Crim R 349
Fuller, unreported; Court of Criminal Appeal (NSW); 7 November 1994
GDR (1994) 35 NSWLR 376; 75 A Crim R 319


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Hamersley Iron Pty Ltd v Lovell & Anor, unreported; FCt SCt of WA; Library No 980397; 16 July 1998
Hamersley Iron Pty Ltd v Lovell & Or, unreported; FCt SCt of WA; Library No 980397; 16 July 1998
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Parry (1997) 92 A Crim R 295
Phelan (1993) 66 A Crim R 446
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
R v Aristodemu, unreported; CCA (NSW); 30 June 1994
R v Pearce (1992) 7 WAR 395
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Registrar of the Court of Criminal Appeal v Gilby, unreported; Court of Criminal Appeal (NSW); 20 August 1991
Registrar, Court of Criminal Appeal v Craven [No 2] (1995) 120 FLR 464; 80 A Crim R 272
Smith (1991) 25 NSWLR 1
Von Doussa v Owens [No 3] (1982) 31 SASR 116
Wood v Galea (1995) 79 A Crim R 567
Wood v Galea (1996) 84 A Crim R 274
Wood v Galea (No 2), unreported; SCt of NSW; Admin Law Div; No 30049 of 1995
Wood v Staunton [No 5] (1995) 86 A Crim R 183
Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262

Case(s) also cited:

Nil

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1 MALCOLM CJ: On 5 August 2002 the respondent, Mr Lovell, was found guilty of three charges of contempt in respect of his failure to attend the Royal Commission to conduct an inquiry into whether there has been any corrupt or criminal conduct by any Western Australian Police Officers and Other Matters ("the Royal Commission"). The particulars of the offences of contempt and the circumstances under which they were committed are set out in my reasons for judgment dated 9 August 2002.

2 There were three contempts. In summary, they were, first, without reasonable excuse, failing to attend the Commission as required by a summons duly served on 10 July 2002 to attend the Royal Commission at the time and place named in the summons, viz, at Level 5, Hartley Poynton Building, 141 St Georges Terrace, Perth at 9.45 am on Monday 15 July 2002, contrary to s 13(1) of the Royal Commissions Act 1968 (WA) ("the 1968 Act").

3 Secondly, having attended and reported to the Royal Commission on 17 July 2002, he refused to be sworn or make an affirmation contrary to s 14(1) of the 1968 Act.

4 Thirdly, after attending and reporting himself to the Royal Commission on 17 July 2002, he left the Commission and failed to attend thereafter without having been released from attendance contrary to s 10 of the 1968 Act.

Punishment for contempt

5 The question of punishment for contempt is entirely a matter within the discretion of the Court: R v Pearce (1992) 7 WAR 395 at 431 per Malcolm CJ, with whom Pidgeon and Rowland JJ agreed. The present offence is to be treated as if it were a contempt of the Supreme Court. The offence itself is an offence at common law. It is not an offence for which any particular maximum penalty is provided by statute. Section 7 of the Criminal Code provides that:

"Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court'; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same Act or omission."

6 The Sentencing Act 1995 (WA) provides that the Act does not apply in respect of the punishment of a person for contempt of court, but, in my

(Page 5)

opinion, it is appropriate in this case to have regard to s 6 of that Act which provides that:

"(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2) The seriousness of an offence must be determined by taking into account –


(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.


(3) Subsection (1) does not prevent the reduction of a sentence because of –

(a) any mitigating factors; or

(b) any rule of law as to the totality of sentences.


(4) A court must not impose a sentence of imprisonment on an offender unless it decides that –

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.


(5) A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given under section 143.

(6) For the purpose of subsection (4), an order under section 58 that a person be imprisoned is not a sentence of imprisonment."

7 I have observed that there is no statutory penalty for the offence of contempt. There is no "victim" in the normal which is protected by the law of contempt of court and the imposition of

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punishment for the offence is, as Kirby P said in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 313 – 314:

"Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said:

'… These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.'

A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or 'excessive fines': see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695."

8 This approach was followed by Stoddart J in Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 at [14].

9 It is first necessary to determine the seriousness of the offence. In Maniam [No 2], supra, the approach taken to the most serious class of contempt was described by Kirby P at 315 as follows:

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"The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR 1422 (1927) at 1429. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard: see Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333. The procedures of a criminal prosecution must be strictly observed: see Spindler v Balog (1959) 76 WN (NSW) 391 at 393.

It is not every case of a wilful and deliberate interference in the administration of justice by the courts that attracts a custodial sentence. Sometimes it is sufficient to impose a substantial fine, at least where there are circumstances which explain the behaviour or tend to mitigate its seriousness: see New South Wales Egg Corporation v Peek (1987) 10 NSWLR 72 at 84. Where the behaviour in question has been deliberate or wilful, reckless or grossly negligent and a risk exists of its repetition, substantial (and even very substantial) fines have been imposed: see Director of Public Prosecutions v John Fairfax & Sons Ltd; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 615.

In the case of persons found guilty of wilfully disobeying a subpoena to attend court as a witness, and especially in criminal proceedings, it is by no means unusual for a custodial sentence to be imposed. Such a sentence was upheld in R v Sergiou (1983) 5 Cr App R (S) 227."

10 In Wood v Staunton [No 5] (1995) 86 A Crim R 183 Dunford J was required to deal with a case of contempt of the Royal Commission into Police Corruption. In that case the contemnor was found guilty of contempt of the Royal Commission following his refusal to answer questions on 1 June 1995. He was committed to prison until a further order was made. On 6 October 1995 he was again found guilty of contempt following his refusal to answer questions at the Commission on 16 and 17 August 1995. In that case the contemnor was sentenced to imprisonment for the contempt on 1 June 1995 for 11 months with the sentence backdated to 1 June 1995. For the contempt committed on 16 and 17 August 1995 he was sentenced to imprisonment for 8 months backdated to commence on 17 August 1995. So far as imprisonment as a punishment for contempt was concerned, Dunford J held that the provisions of the Sentencing Act 1989 (NSW) applied to fixing sentences of imprisonment for contempt, following Attorney General (NSW) v Whitely (1993) 31 NSWLR 314.

11 In O 55 r 2(1) of the Rules of the Supreme Court 1971 (WA), it is provided that the power of the Full Court to punish for contempt may be exercised by "an order of committal". In the case of a contempt in the face of the Court, an order of committal may also be made. There is no distinction between the making of "an order for committal" to prison and "sentencing an offender to a term of imprisonment" as the latter expression appears in s 35(1) of the Sentencing Act: cf Wood v Galea (1996) 84 A Crim R 274 at 276 per Hunt CJ at CL; and Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 per Kirby J at 276. I note, however, that in Wood v Galea, Hunt CJ at CL also said at 276 – 277 that while he was presently bound by Attorney General v Whitely to apply the Sentencing Act, he suggested that the decision in that case:

"… would repay some reconsideration as Pt 55 r 14 (permitting the court to order a contemnor's discharge before the expiration of the term imposed) appears strongly to suggest that punishment for contempt is sui generis in nature, for such a power is inconsistent with the whole scheme of the Sentencing Act."

12 In the same case Hunt CJ at CL said at 277:

"I referred in my previous judgment to the very serious nature of the contempt committed when a witness wilfully refuses to answer questions – whether in legal proceedings or in a Royal Commission – and the need for such a contempt to be dealt with in such a way as to ensure that others are not encouraged to act

(Page 8)

in the same way. [at 571] Since that judgment was written, the Court of Appeal has again emphasised the serious nature of such contempt, [C v Registrar, Court of Appeal (unreported, Court of Criminal Appeal, NSW, 19 December 1995) at p10] adding that punishment for it must not only be designed to uphold the due administration of justice but also to provide both individual and general deterrence and denunciation."

13 The decisions referred to in that passage were Phelan (1993) 66 A Crim R 446 at 449 – 450; Fuller, unreported; Court of Criminal Appeal (NSW); 7 November 1994 at 1 – 2; GDR (1994) 35 NSWLR 376 at 378; 75 A Crim R 319 at 321; and C v Registrar, Court of Appeal, unreported; Court of Criminal Appeal (NSW); 19 December 1995 at 10.

14 In Wood v Staunton [No 5], supra, at 185, Dunford J identified the following factors as being relevant to punishment, drawing on Registrar of the Court of Criminal Appeal v Gilby, unreported; Court of Criminal Appeal (NSW); 20 August 1991, namely:

"Those cases show that relevant matters for consideration in assessing the proper punishment for this type of contempt include:

1 the seriousness of the contempt proved;

2 whether the contemnor was aware of the consequences to himself of what he did;

3 the actual consequences of the contempt on the relevant trial or inquiry;

4 whether the contempt was committed in the context of serious crime;

5 the reason for the contempt;

6 whether the contemnor has received any benefit by indicating an intention to give evidence

7 whether there has been any apology or public expression of contrition;

8 the character and antecedents of the contemnor;

9 general and personal deterrence; and

(Page 10)

10 denunciation of the contempt."

15 These factors were each taken into account by Stoddart J in Principal Registrar of the Supreme Court of New South Wales v Jando, supra, in the application of the Crimes (Sentencing Procedures) Act 1999 (NSW), s 4. Mr Bennett invited the Court to adopt such an approach in relation to Mr Lovell. I propose to take these matters into account in considering the penalty to be imposed on Mr Lovell.

(1) The seriousness of the contempt proved

16 The contempts in this case were very serious. The failure to respond to a summons to appear as a witness strikes at the heart of the work of the Royal Commission.

17 It is important that it be made very clear that persons who are served with a summons to attend before the Royal Commission are required by compulsion of law to attend. If they are required to produce documents they are required to produce them unless they have a reasonable excuse not to do so. They are required to give evidence in relation to any matter relevant to the terms of reference of the Royal Commission. Once summoned to give evidence they are required to attend from day to day unless and until released from attendance by the Royal Commissioner.

18 The Royal Commission, no more than the Courts themselves, cannot operate properly and efficiently if persons who are summoned to attend to give evidence and/or produce documents fail to strictly comply with the requirements of a summons or other process which compels them to attend and produce documents and/or give evidence.

(2) Whether the contemnor was aware of the consequences of what he did

19 It has been established beyond reasonable doubt that the respondent was aware of what was required of him when served with a summons to attend before the Royal Commission and the fact that non-compliance would make him liable to punishment for contempt. He had prior discussions with officers of the Commission regarding the matter. He chose to ignore the summons. This choice was made by a person whose evidence on affidavit is that over a period of many years he has appeared in this Court approximately one thousand times.

(3) The actual consequence of the contempt

20 The consequence for the Royal Commission was that the time set aside for Mr Lovell's appearance as a witness on 15 July 2002 and the

(Page 11)

taking of evidence from him on 17 July, was not utilised for those purposes and its proceedings were frustrated and delayed.

(4) Whether the contempt was committed in the context of serious crime

21 This was not such a case as Jando which was dealt with by Stoddart J. In such cases imprisonment has been regularly imposed as in Wood v Galea (1995) 79 A Crim R 567; and Wood v Galea (1996) 84 A Crim R 274 in which persons failing to appear or declining to answer questions were imprisoned for contempt indefinitely. This approach was followed in a number of cases in New South Wales, namely, Smith (1991) 25 NSWLR 1; Close (1992) 31 NSWLR 743 at 750; Dodd (1991) 57 A Crim R 349 at 355; Attorney General v Whitely, supra; and Registrar, Court of Criminal Appeal v Craven [No 2] (1995) 120 FLR 464; 80 A Crim R 272.

22 These cases were referred to in my judgment in Parry (1997) 92 A Crim R 295. As I pointed out in Parry at 296, they all deal with refusals to answer questions in criminal proceedings. A common sentence where imprisonment only was imposed was in the range of 12 to 18 months. Where a fine was imposed it was between $10,000 and $60,000. The fine of $60,000 was imposed where the contemnor was already serving a sentence of life imprisonment.

23 In Wood v Staunton [No 5], supra, a person was called before the Royal Commission into the New South Wales Police Service. The contemnor had previously been sentenced in the same manner as Mr Galea. He had subsequently purged his contempt. Sentences totalling 19 months' imprisonment were imposed, backdated to when he had been gaoled indefinitely for his failure to give evidence.

24 In Parry the relevant inquiry did not involve allegations of criminal conduct. It was concerned with matters of propriety in the context of holders of public office. The refusal to give evidence was because the contemnor regarded himself bound by the Code of Ethics to which he subscribed as a member of the Australian Journalists Association. He was fined $5,000.

(5) The reason for the contempts

25 No adequate reason or explanation was offered by Mr Lovell for his failure to attend the Commission on 15 July 2002. His reasons for refusing to be sworn were totally misconceived. Even giving him the benefit of the doubt in relation to his belief that, not being a police officer,

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he was not within the jurisdiction of the Commission, his conduct in refusing to be sworn or make an affirmation and his actions in walking out of the Commission without having been released were wholly unjustified.

26 The summons and notice to produce served on Mr Lovell did not specify the issues to be raised with Mr Lovell. However, prior to service of the summons and the notice to produce, Mr Lovell had attended at the office of the Commission and freely given information regarding Mr Lewandowski. He had said he had no personal information concerning corrupt police. He was not involved in the investigation of police.

27 Mr Lovell submitted that there was a serious issue whether par 1 of the notice to produce was beyond the power of the Commission. That may be so, but the documents and material sought were described in the schedule to the notice to produce as:

"1. Any and all documents and materials in your custody or control relating to negotiations and discussions with Anthony Lewandowski, or Michael Buckley, relating to Anthony Lewandowski's conduct of the investigation known as the 'Perth Mint Swindle', namely the theft of gold from the Perth Mint on 22 June 1982 including but not limited to the following:

(a) audio or video recordings/transcripts of communications;

(b) notes;

(c) affidavits or agreements.


2. Any and all documents and materials in your custody or control relating to negotiations for and on behalf of Anthony Lewandowski with media organisations or any other parties including but not limited to the following:

(a) audio or video recordings of conversations;

(b) notes;

(c) records of payments;

(d) affidavits or agreements."

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28 Quite clearly this would be limited to Mr Lewandowski's conduct as from and including 1 January 1985. In this context, the address by Mr Hastings QC on 15 July 2002 indicated the purpose and scope of the inquiry regarding Mr Lewandowski, including in particular the circumstances under which he was alleged to have repudiated evidence which he had previously given in Mickelberg v The Queen in 1998 before the Court of Criminal Appeal. It is apparent from the description of the documents that they included matters which related to the affidavit recently sworn by Mr Lewandowski and the circumstances surrounding the making of the affidavit.

(6) Whether the contemnor has received any benefit by indicating an intention to give evidence

29 There is no evidence one way or another on this point. Consequently, it can be put to one side.

(7) Whether there has been an apology or public expression of contrition

30 There has now been an apology tendered to the Court and to the Commission following the finding by this Court on Wednesday 7 August 2002 that Mr Lovell was guilty of each of the three contempts charged. He has also proffered an undertaking to the Court and to the Commission to co-operate in the inquiry in the future. The expression of contrition has followed the findings of guilt. As Mr Lovell says in par 15 of his affidavit sworn on 8 August 2002 that, at a hearing in camera on 2 August 2002 Mr Lovell's solicitors confirmed to the Royal Commissioner that Mr Lovell would co-operate with the investigations of the Royal Commissioner in relation to matters within the terms of reference "such as the 1987 and 1998 appeals that the Mickelbergs made to the Court of Criminal Appeal". A ruling was sought on the validity of the Notice to Produce. In par 15(h) Mr Lovell said:

"My solicitors stated that I would apologise to the Commissioner immediately if this Honourable Court held that I had committed some or all of the contempts that are the subject of this application, especially in view of the fact that it was not my intention to be disrespectful or contemptuous towards the Commissioner or disruptive in respect to the Royal Commission."

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31 On 5 August, the day he had been found guilty, Mr Lovell wrote a letter to the Royal Commissioner and apologised to him in the following terms:

"As foreshadowed by my solicitor, Mr Kevin Penkin of Kevin Penkin & Associates in the course of the private hearing that was heard late on Friday, 2 August 2002, I confirm that I would apologise to you, Mr Commissioner, if the Full Court found me guilty of contempt. Accordingly, I hereby unreservedly and unequivocally apologise for my conduct, which is the subject of the three contempt charges. It was never my intention to discredit, compromise or hinder either you or the Royal Commission. Nor did I intend to be discourteous, impertinent or indeed, contemptuous toward you or the Royal Commission. I firmly believe that the Royal Commission has a very important role to play in investigating and reporting on any corrupt or criminal conduct by any Western Australian Police Officer. I offer my full support and co-operation to you and the Royal Commission to achieving that end."

32 Mr Lovell also gave the following undertaking to the Royal Commissioner:

"I hereby provide you with my undertaking that as and when I am required to attend the Royal Commission for that purpose, I will attend the Royal Commission to give evidence on oath or affirmation and to remain in attendance until you release me from any further attendance. At any such hearing, and with your permission, I would like to personally apologise to you for my conduct. I will also continue to co-operate "behind the scenes" with Officers of the Royal Commision, subject to my availability and circumstances permitting."

33 This was subsequently extended in a further letter to the Royal Commissioner dated 8 August 2002 as follows:

"With regard to our client's undertaking, we had assumed that the sole purpose of our client's attendance at the Royal Commission related to the 'Perth Mint Swindle'. Our client is not aware of any other issues under the Terms of Reference that he might be involved in, and so our client believed that the undertaking was necessary only in respect to that issue. However, our client has instructed us that his undertaking is

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extended to all and any issues that the Royal Commission is investigating under the Terms of Reference. We trust that that clarifies the matter. Would you please convey our client's instructions regarding the extension of his undertaking to the Commissioner."

34 It is noted that Mr Lovell says that he has since acted to facilitate Mr Lewandowski being interviewed by officers of the Commission. That is a relevant point in his favour.

(8) General and personal deterrence

(9) Denunciation of the contempt

35 These two matters can be considered together. Clearly in a case of this kind it is necessary, for the reasons already expressed, to give consideration to general and personal deterrence and to denounce the contempt.

(10) The character and antecedents of the contemnor

36 Mr Lovell is a former journalist who is now an industrial advocate. His counsel described him as a person whose "passion is for the due administration of justice". It has been said that this passion has particular relevance in the context of the investigation and conviction of Raymond and Peter Mickelberg which for some 17 years he has viewed as an instance of what he describes as "gross police corruption". This motivated him to write a book about the case. That book spawned some 75 legal actions, of which 46 were defamation actions, which were described as "financially ruinous".

37 The book contained allegations that the Mickelbergs had been wrongly charged and convicted on evidence which "had been falsified" in order to procure the convictions. The book was the product of his work as a journalist set against his background as an investigative journalist for the Sydney Morning Herald. One of the actions in which he was involved was a private prosecution he brought against former detective, Mr Lewandowski. It is said on behalf of Mr Lovell that his financial resources prevented him from continuing the proceedings which were ultimately abandoned.

38 It is not suggested that Mr Lovell's belief that the circumstances under which the Mickelbergs were convicted, including the giving of false evidence by police officers, including Mr Lewandowski and the late Mr Hancock, was other than a genuine belief. On this basis his counsel

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sought to distinguish Mr Lovell's position from that of Mr Galea who was dealt with in Wood v Galea (1995) 79 A Crim R 567. Mr Galea was a person who was suspected of having paid significant bribes to corrupt officers to procure them not to prosecute him for conducting a common gaming house. He refused to answer questions either about his involvement or to identify the relevant officers. Mr Galea was originally sentenced for contempt of the Royal Commission into the New South Wales Police Service for refusing to answer questions relevant to the Commission's terms of reference. He was taken into custody on 20 July 1995 and, following being found guilty of contempt, he was committed to prison until further order of the Court or until the Commission terminated, whichever event first occurred. This was to coerce him into giving evidence. A subsequent application to fix a finite sentence was refused: Wood v Galea [No 2], unreported; SCt of NSW; Admin Law Div; No 30049 of 1995; Hunt CJ at CL. It was held that the frustration of a Royal Commission is not necessarily substantially less serious than the frustration of proceedings in Court. In this respect Hunt CJ at CL followed Von Doussa v Owens [No 3] (1982) 31 SASR 116; and R v Aristodemu, unreported; CCA (NSW); 30 June 1994 at 2 – 4. These authorities were earlier followed by Hunt CJ at CL in Wood v Galea (1996), supra, at 282 – 283.

39 Mr Lovell has previous convictions for contempt of this Court relating to the misuse of documents which were discovered in the course of civil proceedings in this Court in respect of which he was sentenced to pay fines of $6000, $7000 (twice) and $10,000 (twice), an aggregate fine of $40,000. As the amounts of the fines indicate, those were very serious offences. The circumstances were such that the documents were used by Mr Lovell otherwise than for the purpose of the legal proceedings in which they were discovered: see Hamersley Iron Pty Ltd v Lovell & Anor, unreported; FCt SCt of WA; Library No 980397; 16 July 1998.

Sentence

40 After taking into account all of the matters to which I have referred and Mr Lovell's undertaking to the Royal Commissioner and to this Court to comply with the requirements of the Royal Commissioner regarding his attendance, his obligation to answer questions relevant to the inquiry and the lawful direction of the Royal Commissioner in the future, I have concluded, after some anxious consideration, that Mr Lovell should be fined rather than imprisoned. Consequently, the question of the imposition of a suspended sentence does not arise. In this context the

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Court may have regard to s 53(1) of the Sentencing Act, in deciding on the amount of the fine, as far as is practicable, to take into account:

"(a) the means of the offender; and

(b) the extent to which the payment of the fine will burden the offender."

41 This is qualified by s 53(2) which provides that a court may fine an offender even though it has been unable to find out about the matters in s 53(1). In this respect, no evidence relating to Mr Lovell's financial position has been provided to the Court.

42 Section 54(1) provides that a court sentencing an offender for two or more offences that are founded on the same facts; or form or are part of a series of offences of the same or a similar kind, may impose a single fine for all of the offences.

43 Section 59(1) provides that if a superior court, such as this Court, fines an offender for an offence, it may order that if the offender does not pay the fine before the date set by the Court, the offender is to be imprisoned until the offender's liability to pay the fine is discharged:

"(a) by payment of the whole of the fine;

(b) by the offender serving the whole of the period of imprisonment determined under subsection (3), or a shorter period set by the court; or

(c) by a combination of payment of part of the fine and the offender serving part of that period of imprisonment."

44 Mr Lovell's conduct as I have described it constituted serious examples of the offence of contempt. While on one view the conduct was such as would warrant a sentence of imprisonment, I consider that no useful purpose would be served by imprisonment. It is, however, important that a deterrent sentence be imposed to ensure that the contemnor is deterred from committing any such offence in future and that other persons do not act in contumelious disregard of the authority of the Royal Commission. In my view, an appropriate punishment would be to impose a fine of $10,000 in respect of each of the three offences of contempt, being a total of $30,000.

45 Mr Lovell should also be ordered to pay the Royal Commission's costs of these proceedings to be taxed.

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46 Section 54(1)(b) of the Act provides that a court sentencing for two or more offences that form or are part of a series of offences of the same or a similar kind may impose a single fine for all of the offences. Section 59(3) provides that, unless the court sets a shorter period under s 59(1)(b), the period of imprisonment to be served in default of payment of the fine is determined by dividing the amount of the fine by $150.

47 In my opinion, while these provisions have no direct application to this case as a matter of law, they provide a guide to the exercise of discretion. I would be prepared to hear any application by Mr Lovell regarding time to pay the fines in order to fix the date for payment. In default of payment by the due date Mr Lovell should be sentenced to imprisonment in respect of any amount outstanding at the rate of one day for each $150 or part thereof unpaid in respect of each fine. On that basis, the maximum term of imprisonment for a total default would be 65 days in respect of each fine. In the event of default in payment in respect of more than one of the fines, I would direct that the terms to be served in default should be served cumulatively.

48 MURRAY J: Following the hearing of this matter in respect of the sentencing of the contemnor, I have had the advantage of reading in draft the reasons for sentence published by Malcolm CJ. I agree with them.

49 I would only add that to my mind the failure to attend in answer to the witness summons on 15 July, the refusal to be sworn or make an affirmation on 17 July and leaving the Commission before being released on that date, were collectively contempts of a most serious character. To my mind it does not mitigate punishment that the contemnor may have genuinely considered that he was not bound to answer the summons, to be sworn or make his affirmation, and was not bound by the processes of the Royal Commission generally, although I am far from persuaded that his professed beliefs in that regard were genuinely held. Once the contemnor was told by the Commissioner that his submissions to that effect were nonsense, the only way he could mitigate punishment for his failure to attend on 15 July was by immediately providing his full co-operation with the processes of the Royal Commission on 17 July.

50 The contempts which were committed had the apparently desired effect. They precluded the Royal Commission from pursuing its investigations by taking evidence from the contemnor. In that sense, the disruption of the processes of the Royal Commission was complete. It is not to the point that there were no doubt other avenues of investigation which could be pursued. In the circumstances, I consider it to be of

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central importance in the sentencing process that there be appropriate denunciation of these offences.

51 As to the character and antecedents of the contemnor, even accepting the genuineness of his professed beliefs, I can find little in the material that was put before us by the plea in mitigation which has the capacity to mitigate punishment to any appreciable degree. A particularly disturbing feature of the case is the contemnor's relatively recent convictions for contempt of court for which fines of $6000, $7000 (twice) and $10,000 (twice), an aggregate fine of $40,000, were imposed: Hamersley Iron Pty Ltd v Lovell & Or, unreported; FCt SCt of WA; Library No 980397; 16 July 1998. The seriousness of those contempts is demonstrated by the facts recounted in the reported decision, Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, which need not be repeated here. The relevant point for present purposes is that in this case the contemnor has displayed a recidivous tendency to decline to be bound by the lawful processes of the Royal Commission. It is necessary therefore that the punishment imposed should not only deter others who may be minded to behave in a similar fashion, but should endeavour to impress upon the contemnor that behaviour of the character of these contempts will not be tolerated by this Court.

52 Were it not for the fact that, promptly after the contemnor's conviction by this Court, he publicly apologised to the Court and the Royal Commission and made appropriate efforts to purge his contempt by giving undertakings of his unqualified willingness to co-operate in future in the processes of the Royal Commission, I would have considered that the only appropriate punishment was a sentence of imprisonment. I have considered the submission for the contemnor that the service of any such sentence should be suspended. In view of the fact that the provisions of the Sentencing Act 1995 (WA) do not necessarily apply in respect of punishment for contempt of court: s 3(3), I am of the opinion that a suspended sentence of imprisonment could be combined with the imposition of a fine to add further weight to the obligation of the contemnor to make good his undertakings and to refrain from any further offence of this character during the period of suspension.

53 However, in the end I am persuaded that the contemnor would be adequately punished by the imposition of fines totalling $30,000 in the terms proposed by Malcolm CJ. I too would provide for the enforcement of the payment of those fines by making orders of the kind provided in the Sentencing Act, s 59. I agree that the contemnor should be imprisoned for up to 65 days in default of payment by the due date of all or any part of

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each fine, such terms to be served cumulatively in the case of more than one such default.

54 STEYTLER J: In this matter I have had the advantage of reading in draft the reasons published by Malcolm CJ in respect of the sentencing of the contemnor.

55 I am in substantial agreement with those reasons and I agree with the orders proposed by his Honour. There is nothing that I could usefully add.