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Kennedy v Lovell

Kennedy v Lovell

Case [2002] WASCA 217 9 August 2002

Contempt of Court

Refusal to Give Evidence

Failure to Attend

Criminal Law

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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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kennedy v Lovell

Details

AGLC: Kennedy v Lovell [2002] WASCA 217
Case: [2002] WASCA 217
Decision Date: 9 AUGUST 2002

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