Kennedy v Lovell

Case [2002] WASCA 217


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   KENNEDY -v- LOVELL [2002] WASCA 217

CORAM:   MALCOLM CJ

MURRAY J
STEYTLER J

HEARD:   24 JULY, 5 AUGUST 2002

DELIVERED          :   5 AUGUST 2002

PUBLISHED           :  9 AUGUST 2002

FILE NO/S:   FUL 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

Catchwords:

Criminal law and procedure - 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:

Royal Commissions Act 1968 (WA), s 9, s 10, s 11, s 12, s 13, s 14, s 16, s 17

Royal Commission (Police) Act 2002 (WA), s 4, s 6, s 9, s 10

Rules of the Supreme Court 1971 (WA), O 55 r 3

Result:

Contemnor found guilty of contempt

Category:    A

Representation:

Counsel:

Applicant:     Ms J C Pritchard on 24 July 2002 and Mr G T W Tannin & Mr C C Lomma on 5 August 2002

Respondent:     Mr K M Penkin on 24 July 2002 and Mr M L Bennett & Mr K M Penkin on 5 August 2002

Solicitors:

Applicant:     State Crown Solicitor

Respondent:     Kevin Penkin & Associates

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

AB v National Crime Authority (1988) 85 FCR 538

Chuck v Cremer 1 Coop Temp Cott 205; 47 ER 820

Douglas v Pindling [1996] AC 890

Hadkinson v Hadkinson [1952] P 285

Harper v Costigan (1983) 72 FLR 140

McGuiness v Attorney General (Vic) (1940) 63 CLR 73

MF1 v National Crime Authority (1991) 33 FCR 449

Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999

National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296

Ross and Anor v Costigan and Anor (1982) 41 ALR 319

Ross and Anor v Costigan and Anor (1982) 64 FLR 55

Case(s) also cited:

Nil

  1. MALCOLM CJ:  This is an originating motion on behalf of the Hon Geoffrey Alexander Kennedy AO QC ("the Royal Commissioner"), a 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 ("the Royal Commission") for an order that Avon Lovell do stand committed to one of Her Majesty's Prisons in the State of Western Australia or be fined in respect of the following alleged contempts of the Royal Commission:

    1.AVON LOVELL, without reasonable excuse, failed to attend as required by a summons in writing under the hand of the Royal Commission and served on Wednesday 10 July 2002, which summons required AVON LOVELL to attend the Royal Commission…

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AGLC
Kennedy v Lovell [2002] WASCA 217
Case
[2002] WASCA 217
Decision Date

CaseChat Overview and Summary

The case of Kennedy v Lovell was heard before the High Court of Australia, where the central issue was the contempt of court associated with a failure to comply with a summons issued by a Royal Commission and subsequent refusal to be sworn and provide evidence. The respondent, Kennedy, had initially failed to attend in response to the summons and later, despite attending, refused to be sworn in and provide evidence. Following this, Kennedy left the commission and did not return, despite not being formally released by the commission.

The primary legal questions addressed by the court were whether the failure to attend and subsequently the refusal to be sworn and provide evidence constituted contempt of court, and if so, whether the act of leaving the commission without formal release constituted a further contempt. The court had to consider the powers of a Royal Commission to summon individuals and the extent to which the refusal to comply with such a summons could be treated as contempt.

In its judgment, the High Court held that both the initial failure to attend and the subsequent refusal to be sworn and provide evidence were indeed acts of contempt. The court emphasised that a Royal Commission, as a creature of statute, has the authority to issue summonses and that non-compliance with such summonses is a serious matter warranting judicial intervention. The court further held that leaving the commission without formal release constituted a further contempt, as it demonstrated a defiance of the commission's authority and an intention to avoid complying with its lawful processes.

The court's decision affirmed the authority of the Royal Commission and underscored the importance of compliance with its processes. The High Court ultimately upheld the contempt findings against Kennedy, reinforcing the principle that refusal to comply with a lawful summons and the evasion of a Royal Commission's processes are acts of contempt. The orders of the court would likely involve penalties or further directives to ensure compliance with the commission's requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MURRAY J

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Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

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