Kennedy v Lovell - [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

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 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;
2.AVON LOVELL attended and reported himself to the Royal Commission on Wednesday 17 July 2002 and refused to be sworn or make an affirmation, contrary to s 14(1) of the Royal Commissions Act 1968;
3.AVON LOVELL after attending and reporting himself to the Royal Commission on Wednesday 17 July 2002 then left the Royal Commission and failed to attend thereafter without having been released from further attendance, contrary to s 10 of the Royal Commissions Act 1968;
particulars of which were set out in a certificate presented by the Royal Commission to this Honourable Court on 18 July 2002 pursuant to s 41 of the Royal Commission (Police) Act 2002 on the grounds that the conduct as aforesaid was likely or calculated or had a tendency to produce, obstruct or interfere with the due administration of justice.
The motion also seeks an order that the Contemnor pay the costs of the Royal Commission in relation to this application and for such other order as the Court may deem fit.
The motion is supported by affidavits sworn by Sheila Ruth Triggs and Carol Ann Atkinson, both sworn on 23 July 2002. These affidavits verify the accuracy of the transcript of the relevant proceedings.
After hearing submissions on 24 July and 5 August 2002 the Court found the contemnor ("Mr Lovell") guilty of each of the contempts as charged. It was then indicated that the reasons for reaching those conclusions would be published later. The matter was then adjourned to Friday 9 August 2002 to hear submissions on the question of penalty. These are my reasons for joining in the finding that Mr Lovell was guilty of each of the contempts alleged against him.

The Royal Commission

The Royal Commissioner has been appointed by His Excellency the Governor to conduct an inquiry into and report on whether, since 1 January 1985, there has been any corrupt or criminal conduct by any Western Australian police officer. This case is concerned with the power of the Royal Commission to compel the attendance of witnesses to give evidence and produce documents by the use of relevant coercive powers conferred on the Commission by statute, and the extent of any relevant limitations on the exercise of those powers: cf Ross and Anor v Costigan and Anor (1982) 41 ALR 319 at 329 – 330 per Ellicott J. By par 7 of the Terms of Reference the Royal Commission is, pursuant to the exercise of executive power which established it, empowered to do all the acts, matters and things and exercise all the power that a Royal Commission may lawfully do and exercise, including those under the Royal Commissions Act 1968 (WA) ("the 1968 Act") and otherwise.
The Royal Commission is being conducted pursuant to the 1968 Act as amended and supplemented by the Royal Commission (Police) Act 2002 (WA) ("the Kennedy Commission Act"). The relationship between the two Acts is set out in s 4 of the Kennedy Commission Act as follows:
"(1)For the purposes of the operation of the Commission, this Act is to be read as if it formed part of the 1968 Act.
(2)The provisions of this Act are in addition to, and not in derogation of, any provisions of the 1968 Act, except as specifically provided by this Act.
(3)Nothing in the 1968 Act operates to constrain or restrict the exercise of a function conferred or imposed by or under this Act."
Section 9 of the 1968 Act provides that:
"A Commissioner may cause a summons in writing under his hand to be served upon any person requiring him to attend the Commission, at a time and place named in the summons, and then and there to give evidence and to produce any books, documents, or writings in his custody or control which is required by the summons to produce."
Section 10 of the 1968 Act provides that:
"A person who has been served with a summons pursuant to section 9 shall, unless excused by a Commissioner, attend as required by the summons and report himself to the Commission from day to day until released from further attendance by a Commissioner."
Section 11 of the 1968 Act provides that:
"A Commissioner may administer an oath to any person appearing as a witness before the Commission, whether the witness has been summoned or appears without being summoned and may examine the witness on oath."
Provision is made in s 12 of the 1968 Act for a person who conscientiously objects to taking an oath to make an affirmation which has the same force and effect and entails the same liabilities as an oath.
Section 13(1) of the 1968 Act provides that a person who has been served with a summons under s 9 and fails without reasonable excuse to attend as required by the summons and s 10, or to produce any documents in his custody or control which he was required by the summons to produce, may be dealt with on the motion of the Attorney General as if he were in contempt of the Supreme Court and the Court has jurisdiction accordingly. This power is not limited by any requirement of relevance. There is no requirement at common law, as distinct from any relevant statute that the exercise by a Royal Commission of its coercive powers be relevant to the Commission's inquiry. A Royal Commission is by its nature a body which is charged with conducting an inquiry which is in the nature of an investigation. As has been said, the nature of the inquiry is quintessentially in the nature of a "fishing expedition": McGuiness v Attorney General (Vic) (1940) 63 CLR 73 at 92 per Starke J; and Douglas v Pindling [1996] AC 890 at 904 per Lord Keith.
Where, as in this case, the Royal Commission is given broad terms of reference, the Commission is not determining issues as between parties to litigation. It may determine for itself in what order matters will be investigated and when. It is not bound by the rules of evidence. It is not required to follow any set order or procedure in the summoning of witnesses or the nature of the evidence sought to be adduced. The Commission may on occasions fail to prove all the links in some suggested or suspected chain of events. So long as the Commission seeks bona fide to establish a relevant connection between certain facts and the subject matter of the inquiry as revealed by its terms of reference, any particular subject matter of inquiry should not be held as being outside the terms of reference of the Commission: Ross and Anor v Costigan and Anor (1982) 41 ALR 319 at 334 per Ellicott J, approved in NCA v AI (1997) 145 ALR 126 at 137 per Von Doussa and Sundberg JJ. A Royal Commission is entitled to pursue a line of inquiry which it considers may hold promise of being productive of relevant information: Douglas v Pindling, supra, at 904 per Lord Keith. Persons can be called to give evidence of their knowledge or source of information even if they had no direct personal knowledge about them: McGuiness v Attorney General, supra, at 86 per Latham CJ.
A Royal Commissioner is entitled to exercise his or her good sense and judgment to determine what avenues of inquiry within the terms of reference he or she believes in good faith will be of assistance in the inquiry. This concept of relevance is much broader than that which is applicable in litigation between parties: McGuiness v Attorney General, supra, at 105 per Dixon J; Ross and Anor v Costigan and Anor (1982) 64 FLR 55 at 69 per Fox, Toohey and Morling JJ; MF1 v National Crime Authority (1991) 33 FCR 449 at 465 per Jenkinson J (with whom Gray J agreed); and at 471 per Ryan J; and AB v National Crime Authority (1988) 85 FCR 538 at 551 per Black CJ, Sundberg and North JJ.
As Morling J said in Harper v Costigan (1983) 72 FLR 140 at 143, the nature of an inquiry before a Royal Commission makes it extremely difficult for a court and, I would add, much less a prospective witness, to conclude, in advance of his or her examination, that his or her evidence would be outside the Commission's terms of reference. In an investigative context, the evaluation of the prospects of obtaining relevant or useful information is, within limits, for the investigator and not for the witness to determine: cf MF1 v National Crime Authority, supra, at 461 per Jenkinson J, with whom Gray J agreed.
In the context of an investigative inquiry, the investigator is entitled not to disclose his or her hand prematurely so as to alert a witness or suspect to the progress of the investigation or have the effect of closing off other sources of inquiry: National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 323 – 324 per Mason, Wilson and Dawson JJ.
Section 13(2) of the 1968 Act provides, in relation to the production of documents, books and writings, that it is a defence to contempt proceedings under s 13(1), if the defendant proves that the documents, books or writings were not relevant to the inquiry. This is qualified by s 13(4) which provides that, notwithstanding s 13(2), a person is not excused from producing any documents, books, or writings as required by a summons served pursuant to s 9 on the ground that the production of the documents, books, or writings might incriminate or tend to incriminate the person or render the person liable to a penalty.
Section 14(1) of the 1968 Act provides that:
"If a person who has been served with a summons pursuant to section 9 attends as required by the summons and section 10 but refuses to be sworn or to make an affirmation or refuses to answer any question relevant to the inquiry put to him by a Commissioner he may be dealt with on the motion of the Attorney General as if he were in contempt of the Supreme Court and the Supreme Court has jurisdiction accordingly."
Section 16 of the 1968 Act provides for the arrest and detention of a person failing to attend as required as follows:
"(1)If a person who has been served with a summons pursuant to section 9 fails to attend as required by the summons and section 10, the Chairman may, on proof by statutory declaration of the service of the summons, issue a warrant for the apprehension of that person.
(2)Subject to section 17, a warrant issued pursuant to subsection (1) shall authorise the apprehension of the person and his being brought before the Commission and his detention in custody for that purpose until he is released by order of the Chairman or, on appeal, by order of a Judge or the Full Court of the Supreme Court, as the case may be.
(3)A warrant issued pursuant to subsections (1) and (2) may be executed by a member of the Police Force of the State, or by any person to whom it is addressed, and the person executing it has the power to break and enter any place, building or vessel for the purpose of executing it.
(4)The apprehension of a witness under this section does not prevent the witness from being dealt with for contempt pursuant to section 13(1) by reason of his non‑compliance with the summons."
Section 17 provides for an appeal to the Supreme Court in respect of an arrest pursuant to s 16.
Section 6 of the Kennedy Commission Act provides that for the purposes of the Commission's inquiry, the Commissioner may by written notice served on a person, require the person:
(a)to attend at a time and place specified in the notice before the Commission or an officer of the Commission as specified in the notice;
(b)to produce at that time and place to the person so specified a document or other thing specified in the notice.
Section 6(3) provides that, subject to s 41, a person who fails to comply with a notice served on the person under the section is guilty of a contempt of the Commission.
Section 9(1) of the Kennedy Commission Act provides that if a person served with a summons under s 9 of the 1968 Act fails to attend as required by the summons and s 10 of that Act, the Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the apprehension of that person. Such a warrant authorises the apprehension of the person and his being "promptly" brought before the Commission and detained in custody for that purpose until released by order of the Commissioner: s 9(6) of the Kennedy Commission Act.
The issue of contempt is specifically dealt with in s 41 of the Kennedy Commission Act. Section 41(1) provides that where a contempt of the Commission is alleged to have taken place, the Commissioner may present to the Supreme Court a certificate setting out the details of the act or omission that the Commissioner considers constitutes the alleged contempt. Such a certificate is prima facie evidence of the matters certified within it. Where a certificate is so presented, the Supreme Court has jurisdiction as if the contempt were a contempt of the Supreme Court.

Commencement of proceedings: Procedure

By a certificate dated 17 July 2002 ("the certificate"), presented to the Supreme Court on 18 July 2002, the Royal Commissioner alleged that Mr Lovell of 81 Wahroonga Avenue, Greenwood in the State of Western Australia had committed contempt of the Royal Commission and certified that the acts or omissions detailed below constituted the alleged contempts, namely:
"Non‑compliance with a summons
.A summons in writing under my hand was served on Avon Lovell on Wednesday 10 July 2002 requiring him to attend the 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;
.Avon Lovell failed to attend as required by the summons without being excused by me contrary to s 13(1) of the Royal Commissions Act 1968;
.Avon Lovell provided no reasonable excuse for his failure to attend as required by the summons;
.I issued a warrant for the apprehension of Avon Lovell on Monday 15 July 2002; and
.The warrant for the apprehension of Avon Lovell was not executed.
Refusal to be sworn or make affirmation
.Avon Lovell attended and reported himself to the Commission on Wednesday 17 July 2002 and refused to be sworn or to make an affirmation, contrary to s 14(1) of the Royal Commissions Act 1968.
Failure to continue in attendance
.Avon Lovell attended and reported himself to the Commission on Wednesday 17 July 2002. He then left the Commission and failed to attend thereafter without having been released from further attendance, contrary to s 10 of the Royal Commissions Act 1968."
This certificate was relied upon by counsel for the Royal Commissioner on 18 July 2002 in support of an application for a warrant of arrest of Mr Lovell to be issued by the Supreme Court. That warrant was issued on 18 July 2002. Mr Lovell was arrested on that day and brought before the Full Court of the Supreme Court that afternoon. The warrant had been issued pursuant to O 55 r 3 of the Rules of the Supreme Court 1971 which relevantly provides that, when it is alleged that a person has committed a contempt in the face of the Court, the presiding Judge may by oral order direct that the contemnor be arrested and brought before the Court as soon thereafter as the business of the Court permits, or may issue a warrant under his hand for the arrest of the contemnor. Rule 3(4) provides that the powers under the rule are exercisable in the same way by a Judge sitting in Chambers, except that the contemnor must be brought before the Court sitting in Court, and the Court shall hear and determine the charge and make any necessary orders.
In the case of the Royal Commission, the failure to attend as and when required, as well as the failure to be sworn or affirmed and the failure to answer questions or produce documents, each constitute a contempt of a kind which is to be dealt with as if it were a contempt of the Supreme Court. Apart from the failure to attend as required, each of the contempts alleged is the equivalent of a contempt of the Supreme Court and, in particular, the equivalent of a contempt in the face of the Court.

Failure to attend as required by summons

In the present case, Mr Lovell, having been duly served on 10 July 2002 with a summons to attend the Royal Commission on Monday 15 July 2002, failed to do so. He failed to attend as required by the summons without being excused by the Royal Commissioner contrary to s 13(1) of the 1968 Act.
Mr Lovell has maintained that he did not attend the Royal Commission as and when required on 15 July 2002 because he considered that he was not in a position to give evidence which was within the terms of reference of the inquiry. That belief provided no excuse. The service of the summons to attend, which is not in issue but admitted, placed Mr Lovell under a legal obligation to attend. His failure to attend did not constitute a contempt in the nature of a contempt in the face of the Court, but was a misguided and unlawful act of disobedience to the summons in the same way as if he had chosen to ignore a subpoena to attend and give evidence at the Supreme Court. The excuse provided was that he believed he was not in a position to give evidence within the scope of the terms of reference, because the terms of reference were limited to events occurring in the period commencing on 1 January 1985, and the offences associated with the offence of what was described as the "Perth Mint Swindle" occurred in 1982. Raymond, Peter and the late Brian Mickelberg were convicted of those offences in 1983. Evidence of matters occurring before 1 January 1985 is beyond the scope of the inquiry. However, on 15 July 2002 Mr Hastings QC, counsel assisting the Royal Commissioner, in the course of an address to the Commission, had referred to the fact that, for many years there had been controversy surrounding the convictions of Peter, Ray and Brian Mickelberg of offences associated with what has been referred to as the "Perth Mint Swindle" in 1982. The Royal Commissioner was informed that most of the controversy related to the validity of incriminating evidence given by the officers in charge of the investigation, then Detective Sergeant Donald Hancock and Detective Anthony Lewandowski. Mr Hastings QC said that Mr Hancock was deceased and that Mr Lewandowski had retired. He then went on to say that:
"It is now a matter of general public knowledge that Anthony Lewandowski has sworn an affidavit dated the 5th of June this year in which he states that the evidence against some of the Mickelbergs was fabricated by himself and by Mr Hancock. The circumstances of the swearing of the affidavit are currently unknown. The affidavit is in general in imprecise terms and Mr Lewandowski left the country immediately, and has not been formally interviewed about his affidavit and the matters referred to therein since."

Mr Hastings then made reference to the fact that it was generally thought that the greater good to be derived from the use of the time and resources of the Royal Commission was in relation to contemporary issues from which any necessary process of reform can be fashioned. Counsel went on to say, however, that:
"Many factors influence decisions about the re‑investigation of old matters. Paramount is the issue of the utility of any such re‑investigation. The availability of fresh evidence, is, of course, significant in any such decision. The emergence of fresh evidence in relation to the Perth Mint Swindle has been a factor in the decision of the Royal Commission to investigate the matter. It is obvious that the matter needs to be undertaken in the appropriate criminal justice system processes in due course but it has been considered that the Royal Commission has powers and resources and a position of independence and impartiality which justify its intervention in a preliminary stage. The intention is to avoid any significant delay to the criminal justice process by confining the Commission's inquiry into the issues which fall squarely within the terms of reference – namely, the possibility of criminal conduct or corrupt conduct by members of the Western Australian Police. The intention is that any evidence gathered in the course of investigation by the Royal Commission in relation to those matters can then be referred to the appropriate agency for further action in accordance with the normal processes of the criminal justice system.
In that regard, it is to be noted that the terms of reference of the Royal Commission are limited to the period commencing on the 1st of January 1985. If the current allegations made in the affidavit of Mr Lewandowski are correct, notwithstanding the fact that the original offence, the investigation and trial commenced prior to the period covered by the terms of reference, subsequent evidence was given by the same officers in later inquiries in 1987 and 1998 and those actions would, of course, come within the terms of reference. The Royal Commission has informed other agencies that it is investigating the matter and, as a result of which, those agencies for the time being will be taking no further action. As I mentioned earlier, at the outcome of the Royal Commission's investigation, which it is hoped will be of short duration, the results will be forwarded to those agencies for appropriate action as soon as possible.
An essential step in the investigation is to interview Mr Lewandowski. Mr Lewandowski is believed to be in Asia, although his current whereabouts are not precisely known. It is to be noted that he has apparently been the subject of interviews by the media and has made some confirmation of the matters in his affidavit through that source."
In my opinion, it is apparent that the reference to inquiries in 1987 and 1998 and the truth or otherwise of the evidence given by Messrs Hancock and Lewandowski to the Court of Criminal Appeal in relevant proceedings, having regard to the contents of Mr Lewandowski's affidavit of 5 June 2002 alleging the fabrication of evidence, was to matters which were within the terms of reference of the Royal Commission.
Mr Hastings went on to recount that, following the affidavit being sworn, it was handed to the Director of Public Prosecutions in the presence of Mr Lewandowski on the morning of 6 June 2002. At that time it is said that Mr Lewandowski was given an undertaking by the Director of Public Prosecutions that nothing in the affidavit, or anything said during the meeting which took place with the Director on 6 June 2002, would be used against him. There was a short interview between the Director and Mr Lewandowski in which the latter confirmed that he had not been legally represented, nor had he received any legal advice to that point. Mr Hastings then told the Royal Commission that:
"It has become clear that Mr Lewandowski is largely guided by Mr Avon Lovell, a journalist with a long‑standing interest in demonstrating that police fabricated evidence in relation to the Mickelbergs. The Royal Commission has had contact with Mr Lovell on a number of occasions. On each occasion Mr Lovell has indicated that Mr Lewandowski was overseas in a place of which he was aware. He claims that Mr Lewandowski is currently in ill health and is in a state of fear and requires handling with sensitivity. On each of the occasions when contact was had with Mr Lovell discussions were made concerning proposals for the return of Mr Lewandowski to Australia. Facilities were offered by the Royal Commission to ensure that he came back in circumstances which were safe and which were designed to protect his health. On none of the occasions when Mr Lovell left with an assurance that he would speak to Mr Lewandowski and come back with a response was any reply received.
So the point has been reached, Commissioner, where it is necessary to hear some evidence from Mr Lovell in order to advance the investigation by the Commission, and I now ask that Avon Lovell be called."
Mr Lovell had been called to give evidence on 15 July 2002 but, as the transcript confirms, he was not present, although he had been duly served with a summons. Reference was made to various media reports that he would not respond to the summons and it was indicated that appropriate action would be taken. It was also noted that a notice to produce had been served on Mr Lovell to produce any documents relating to his dealings with the media concerning Mr Lewandowski and for certain other information. It appears that, as a response to that notice, a document was received which was identified as document D1006594.
At the conclusion of Mr Hastings' address, Mr Lovell was called to give evidence. He did not appear. Reference was made to various media reports indicating that Mr Lovell would not respond to the summons which had been served on him.
Mr Lovell has not put forward any excuse for his non‑attendance on 15 July 2002. In my opinion, Mr Lovell had no reasonable excuse for not attending the Commission on 15 July 2002 in response to the summons duly served on him and it was a clear case of a contempt contrary to s 13(1) of the 1968 Act. Hence the finding by this Court on 5 August 2002 that he was guilty of the contempt alleged in par 1 of the notice of motion.

Refusal to be sworn or make an affirmation

When Mr Lovell did attend on the morning of 17 July 2002 he was called to give evidence. He then stated that he wanted to make a submission from the Bar Table. Counsel assisting the Royal Commissioner asked him to "go to the witness box, please". Mr Lovell did not comply with that request. The transcript then records the following exchange:
"MR LOVELL: I've got some submissions to make so I'd like to be able to make them from the bar table.
MR HASTINGS: Thank you. You're being called as a witness. Would you go to the witness-box?
MR LOVELL: No, when they've been submitted to you.
MR HASTINGS: When you've answered the summons, please.
MR LOVELL: We need to discuss the summons and the status of the summons, and I've got some submissions Mr Commissioner, with respect.
COMMISSIONER: Would you please go to the witness‑box, please Mr Lovell?
MR LOVELL: Well, I can't make submissions from the witness-box - -
COMMISSIONER: You can.
MR LOVELL: - - that relate to the power of the Commission and at this stage the power of the Commission - - you're acting ultra vires because, in respect of myself, it's outside the terms of reference and, with respect, I don't know why I'm here. The summons - - excuse me, why is this gentleman here? The summons doesn't tell me why I'm here. The summons just speaks in general terms, so first of all, I'm going to ask whether or not a copy of your terms of reference that I have here, which is off the net, is in fact the terms of reference. That's the first question.
The second question is if I'm here in respect of the Lewandowski affidavit, may I see that Lewandowski affidavit and then I want to make some submissions in respect of both of those matters. I can't make those submissions from the witness-box because they relate to whether or not you, in fact, have any power over me whatsoever in respect of your terms of reference, and I think the proper starting point is if I do ask you whether or not this is - - can you please show the Commissioner that – whether or not that is a fair and true copy, complete copy of the terms of reference.
COMMISSIONER: You can show Mr Hastings, please.
MR HASTINGS: It seems to be.
MR LOVELL: Yes. Are they the complete terms of reference?
Nothing else?
MR HASTINGS: I think you can assume so.
MR LOVELL: I assume nothing, sir.
MR HASTINGS: Well, you may - -
MR LOVELL: Are they the complete terms of reference?
MR HASTINGS: You may for the purpose of this hearing assume that what you've produced is a copy of the terms of reference.
MR LOVELL: I make no assumption. I want a straightforward acknowledgement that they are the terms of reference.
MR HASTINGS: Well, it appears to be, without having checked it word for word.
MR LOVELL: Well, I'm sorry you may go on appearances your Honour may I pass this up to you. May I call for - - may I call for your commission and the terms of reference under the seal of the Governor?
COMMISSIONER: Mr Lovell, you've been called as a witness.
MR LOVELL: Well, that is open for question, whether you're acting ultra vires, you're exceeding your powers. Now, the second part of this is if I'm here in reference to the Lewandowski - - if I'm here in reference to the Lewandowski affidavit - - may I ask is that the case?
MR HASTINGS: You're not here to ask questions, Mr Lovell.
MR LOVELL: Well, I'm making submissions here. I need to find out why I'm here.
MR HASTINGS: You'll find out when you - -
MR LOVELL: I have a summons that tells me nothing whatsoever. The summons is to appear and talk about the fairies. Now what am I here for? Now, if I had counsel here counsel would be asking that question. I'm here in person and I'm entitled to make submissions preliminary to the next step. Am I here in respect of the Lewandowski affidavit?
MR HASTINGS: You're here because you've been summoned Mr Lovell.
MR LOVELL: That's the kind of evasive answer one would expect from other parties. I'm asking a direct question. Am I here in respect of the Lewandowski affidavit?
MR HASTINGS: There are a number of matters that are to be discussed. One of them is the Lewandowski affidavit.
MR LOVELL: The Lewandowski affidavit with respect, Mr Commissioner, is ultra vires. It's out of your power. That affidavit was signed, I think, on the 5th of June, 2002 by a private citizen who is not a police officer and outside your terms of reference. The proper pathway for that document is the pathway in which it is presently in, which is as forming part of the petition to the State for a reference to the Court of Criminal Appeal for just and proper determination and, in fact, the process that's occurred here so far is almost in breach of your term 9(a) where it's completely prejudicial to prospective proceedings – which I presume you could take judicial notice of, the fact that there is a petition to the Attorney General – for remitting - -
COMMISSIONER: Mr Lovell, may I remind you that section 14 of the Royal Commissions Act provides that if a person who has been served with a summons pursuant to section 9 attends as required by the summons, and section 10, but refuses to be sworn or to make an affirmation, or refuses to answer any question relevant to the inquiry put to him by a Commissioner, he may be dealt with on the motion of the Attorney General as if he were in contempt of the Supreme Court and the Supreme Court has jurisdiction accordingly.
MR LOVELL: With respect to you - -
COMMISSIONER: Do you understand the - -
MR LOVELL: With respect to you - -
COMMISSIONER: - - consequences of that - -
MR LOVELL: With respect to you, that has to be read in conjunction with section 5, which is the power to appoint the Commission, and most certainly with 7, which is the powers of the Commission, which are in the exercise of your function as a Commission and the performance of its terms of appointment. If I can go to your terms of appointment - -
COMMISSIONER: Can I ask you if you're prepared to be sworn or make an affirmation?
MR LOVELL: Well, you have no power - -
COMMISSIONER: - - and to answer questions.
MR LOVELL: - - to ask me that because you're acting ultra vires.
COMMISSIONER: That's nonsense.
MR LOVELL: - - and that is a threshold issue because - -
COMMISSIONER: You're speaking nonsense Mr Lovell.
MR LOVELL: - - you're - - you're section 1 is that you're appointed to be a Royal Commissioner inquiring into and report on whether, since 1 January 1985, there has been corrupt conduct or criminal conduct by a Western Australian police officer. As at 2002, Mr Lewandowski was not a police officer. Anything to do with that affidavit is beyond your powers. Any - - my financial affairs, which have been exposed publicly, were beyond your powers. It is a misuse of your powers. You are limited by your terms of reference and you cannot step outside it because you are ultra vires. You cannot restrain me here. You cannot ask me to be sworn in, because I'm not here in fact here under summons; I'm here as a courtesy to this Commission and to make the submission that you are ultra vires.
Now, there is nothing in your terms of reference that can bring me here, and I'm a free citizen; I'm here freely to - - as a courtesy to you, shortly I'm going to go and have a cup of tea because there's nothing I can do. I'm outside your power.
MR HASTINGS: Mr Lovell, you know that one of the reasons why you've been asked to come here is to obtain from you the current whereabouts and means of contacting Mr Lewandowski. Are you prepared to give that information to the Royal Commission?
MR LOVELL: It's outside your power. I'm going home for a cup of tea.
COMMISSIONER: Yes, Mr Hastings?
MR HASTINGS: Mr Lovell seems to have made his own choice as to the course he wishes to follow, Commissioner. We might as well adjourn the proceedings and appropriate action will be taken.
COMMISSIONER: Yes. The Commission will adjourn."
According to the transcript the Commission adjourned at 10.09 am.
In my opinion, on the face of it, Mr Lovell's conduct in refusing to be sworn constituted a contempt which was in the nature of a contempt in the face of the Court. Assuming that he had a genuine belief that he was not in a position to give relevant evidence, that did not excuse his failure or refusal to be sworn or make an affirmation, contrary to s 14(1) of the 1968 Act.
On the assumption that he had a genuine belief that the matters about which he was to be asked were not or would not be relevant to the terms of reference of the inquiry, he would have the opportunity to object to answer a question he asserted to be irrelevant to the terms of reference of the inquiry, but that provided no excuse for refusing to be sworn or make an affirmation. In my opinion, his refusal to be sworn or make an affirmation clearly constituted a contempt within s 14(1) of the 1968 Act. It was for this reason that he was found guilty of the second of the contempts alleged.

Leaving the Commission without being released

The third of the contempts alleged against Mr Lovell is that, after attending and reporting himself to the Royal Commission on Wednesday 17 July 2002, he left the Royal Commission and failed to attend thereafter, without having been released from further attendance, contrary to s 10 of the 1968 Act.
Having attended and reported to the Royal Commission on Wednesday 17 July 2002, when he was unable to get his own way regarding some form of advanced ruling on the question whether the Royal Commissioner had any "power" over him in respect of the terms of reference, Mr Lovell asserted that he did not know why he had been called. He asked whether it related to Mr Lewandowski's affidavit. He was told that one of the matters to be discussed was Mr Lewandowski's affidavit. What then transpired is recorded in the transcript as follows:
"MR LOVELL: The Lewandowski affidavit, with respect, Mr Commissioner, is ultra vires. It's out of your power. That affidavit was signed, I think, on the 5th of June, 2002 by a private citizen who is not a police officer and outside your terms of reference. The proper pathway for that document is the pathway in which it is presently in, which is as forming part of the petition to the State for a reference to the Court of Criminal Appeal for just and proper determination and, in fact, the process that's occurred here so far is almost in breach of your term 9(a) where it's completely prejudicial to prospective proceedings – which I presume you could take judicial notice of, the fact that there is a petition to the Attorney General – for remitting - -
COMMISSIONER: Mr Lovell, may I remind you that section 14 of the Royal Commissions Act provides that if a person who has been served with a summons pursuant to section 9 attends as required by the summons, and section 10, but refuses to be sworn or to make an affirmation, or refuses to answer any question relevant to the Inquiry put to him by a Commissioner, he may be dealt with on the motion of the Attorney General as if he were in contempt of the Supreme Court and the Supreme Court has jurisdiction accordingly."
Mr Lovell's response, when asked whether he understood the consequences of that, was to submit that the Royal Commission had no power to ask him questions because, as he put it, "you're acting ultra vires". At this point the Royal Commissioner commented, "That's nonsense". Mr Lovell continued to press the ultra vires point on the ground that:
"… as at 2002 Mr Lewandowski was not a police officer. Anything to do with that affidavit is beyond your powers. … You are limited by your terms of reference and you cannot step outside it because you are ultra vires. You cannot restrain me here. You cannot ask me to be sworn in, because I'm not in fact here under summons; I'm here as a courtesy to this Commission and to make the submission that you are ultra vires.
Now, there is nothing in your terms of reference that can bring me here, and I'm a free citizen; I'm here freely to - - as a courtesy to you, and shortly I'm going to go and have a cup of tea because there's nothing I can do. I'm outside your power.
MR HASTINGS: Mr Lovell, you know that one of the reasons why you've been asked to come here is to obtain from you the current whereabouts and means of contacting Mr Lewandowski. Are you prepared to give that information to the Royal Commission?
MR LOVELL: It's outside your power. I'm going home for a cup of tea.
COMMISSIONER: Yes, Mr Hastings?
MR HASTINGS: Mr Lovell seems to have made his own choice as to the course he wishes to follow, Commissioner. We might as well adjourn the proceedings and appropriate action will be taken.
COMMISSIONER: Yes. The Commission will adjourn.
AT 10.09 AM HEARING ADJOURNED SINE DIE"
It is clear from the materials that one of the matters that was to be investigated was whether Mr Lewandowski had given false evidence at the most recent appeal in 1998 relating to the Mickelbergs which was the subject of the decision of the Court of Criminal Appeal in 1999: Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999 at 47 – 116 per Malcolm CJ, Ipp and Wheeler JJ, or whether the affidavit sworn by him on 5 June 2002 was or was not truthful. In addition, it was being asserted by counsel assisting the Royal Commissioner that Mr Lewandowski had given evidence in relation to the Perth Mint Swindle in 1987 and 1998. Finally, it was asserted by counsel assisting the Royal Commissioner that one of the reasons that Mr Lovell had been called as a witness was to ascertain Mr Lewandowski's current whereabouts and the means of contacting him.

In my opinion these matters were, on the face of it, matters relevant to the terms of reference of the Royal Commission upon which Mr Lovell was compellable to give evidence of any relevant matter within his knowledge.
In my opinion, the evidence clearly established beyond reasonable doubt not only that Mr Lovell refused to be sworn, contrary to s 14(1) of the 1968 Act, but also that, having been served with a summons pursuant to s 9 of the 1968 Act, he failed to attend as required by the summons and report himself from day to day until released from further attendance by the Royal Commissioner. His action in simply walking out of the Royal Commission without being released from further attendance by the Royal Commissioner constituted a clear breach of s 10 of the 1968 Act and constituted a contempt of the Royal Commission. It was for this reason that Mr Lovell was found guilty of the third of the three contempts alleged.

Mr Lovell arrested and brought before the Full Court

Following Mr Lovell's arrest on 18 July 2002 he was brought before the Full Court shortly after 3.00 pm on that day. At that time Mr Lovell was not represented by counsel. Reference was made to the fact that, earlier that day, a warrant for the arrest of Mr Lovell was issued following the presentation to the Court of a certificate from the Royal Commissioner pursuant to s 41(1). This immediately brought into play the provisions of s 41(1) to which I have already referred. As previously noted, s 41(4) provides that:
"If, in relation to the Commission, there is any failure, refusal or contravention referred to in section 13(1), 14(1) or 18(10) of the 1968 Act, it may be dealt with under this section as a contempt of the Commission, and any defence that would have been available in proceedings under those sections in respect of the failure, refusal or contravention as available under this section."
The latter provision does not derogate in any way from s 41(3) which provides that where a certificate is presented under subs (1) of s 41 the Supreme Court has jurisdiction as if the contempt were a contempt of that Court.
Section 41(5) of the Kennedy Commission Act provides that a person is not liable to be punished for contempt under this section in respect of failure to comply with a notice served under s 5 or s 6 of the Act if:
(a)the person establishes that there was a reasonable excuse for the act or omission concerned; or
(b)in the case of a failure without reasonable excuse to produce any document or other thing under s 6, the person proves that the document or other thing was not relevant to the inquiry.
Section 41(6) provides that:
"Except as otherwise provided in this Act, a person required to comply with a notice served under section 5 or 6 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."
For the purposes of s 41(5)(a) and (b), the term "reasonable excuse" is defined in s 41(7) as follows:
" 'reasonable excuse' means an excuse that would excuse a similar failure by a witness, or a person summoned as a witness, before the Supreme Court except that it does not include as an excuse for failing to comply with a notice that –
(a)the production of a statement of information, document or thing as required in the notice or summons might incriminate or tend to incriminate the person or render the person liable to a penalty; or
(b)the production of the document or other thing would be in breach of an obligation of the person not to disclose information, or not to disclose the existence or contents of a document, whether the document arose under an enactment or otherwise."
It is clear that the procedure under s 41 of the Kennedy Commission Act was to enable alleged contraventions or failures or refusals in relation to s 13(1) or s 14(1) of the 1968 Act to be dealt with under the procedure contemplated by s 41.
The Kennedy Commission Act was assented to and came into force on 28 June 2002. Regrettably, it was not seen fit by those responsible for the development and implementation of the legislation to bring to the attention of the Supreme Court or consult with the Court regarding the need for possible amendments or additions to the rules of court in the form of the existing rules contained in O 55 of the Rules of the Supreme Court 1971.
Order 55 r 3(2), (3) and (4) provides that:
"(2)When the contemnor is brought before the Court, the Court shall –
(a)cause him to be informed orally of the contempt with which he is charged;
(b)require him to make his defence to the charge;
(c)after hearing him proceed, either forthwith or after adjournment to determine the matter of the charge; and
(d)make an order for the punishment or discharge of the contemnor."
(3)The Court may, pending disposal of the charge –
(a)direct that the contemnor be detained in such custody as the Court directs; or
(b)direct that the contemnor be released on bail.
(4)The powers given by this rule are exercisable, mutatis mutandis, by a Judge sitting in chambers except that the contemnor must be brought before the Court sitting in court, and the Court shall hear and determine the charge and make the order."
Counsel for the Royal Commissioner contended on 18 July 2002 that the contempt in at least one particular referred to in the certificate of the Royal Commissioner was a contempt in the face of the Royal Commission, namely, the alleged refusal by Mr Lovell to be sworn. That being a contempt in the face of the Commission, it was, by virtue of the provisions to which I have referred, to be regarded as a contempt in the face of the Supreme Court. As has been seen, by virtue of the presentation of a certificate under s 41(1), the Supreme Court has jurisdiction over the matter as if the contempt were a contempt of that Court. As I have already indicated, Mr Lovell's actions on 17 July 2002 in refusing to be sworn or make an affirmation and then walking out of the Royal Commission without having been released was not only in defiance of the authority of the Royal Commission, but constituted contempt in the nature of contempts in the face of the Court.
In this context, it needs to be borne in mind that the service of the summons to attend before the Royal Commissioner had the effect provided by s 10 of the 1968 Act to require Mr Lovell to attend at the Commission on 15 July 2002 and from day to day until such time as the Royal Commissioner released or excused him from further attendance. The allegation is that he failed to attend on that date and did not produce any of the documents he was called upon to produce. When he did attend on 17 July 2002 he objected to being sworn on the ground, expressed generally, that the matters on which he anticipated or understood that he was to be asked about were beyond the Commission's terms of reference and, consequently, either irrelevant or beyond power.
In Chuck v Cremer 1 Coop Temp Cott 205; 47 ER 820, Lord Cottenham LC said at 342:
"A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed."
This decision was applied by the Court of Appeal in Hadkinson v Hadkinson [1952] P 285 in which Romer LJ, with whom Somervell LJ agreed, said at 288:
"Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt. It is the second of these consequences which is of immediate relevance to this appeal. The rule, in its general form, cannot be open to question. There are many reported cases in which the rule has been recognised and applied, and I need refer only to Garstan v Garstan [[1865] 4 Sw & Tr 73; 34 LJPM & A 45; 164 ER 1443] and Gordon v Gordon [[1904] P 163].
An alleged contemnor is not himself or herself entitled to seek any relief from the court in relation to the subject matter apart from, for example, seeking to be released on bail pending the substantive hearing of the charge of contempt, as happened in this case."
Hadkinson v Hadkinson was cited with approval in the Full Court of the Supreme Court of Victoria in Little v Lewis [1987] VR 798 at 804 – 805 per Kay J, with whom O'Bryan and King JJ agreed. In my view these decisions correctly state the common law as it applies in Western Australia.

In my opinion, Mr Lovell's approach to the matter when he appeared on 17 July 2002 was misconceived. The objections he sought to make were spurious and of no validity. While he commenced his submissions in a manner which was polite and respectful, his decisions not to be sworn and to walk out of the Commission when events proceeded in a manner not to his liking, displayed no respect for the authority of the Royal Commission. The law required him to attend, be sworn or make an affirmation and answer questions relevant to the terms of reference. If he was asked a question which he believed was outside the terms of reference he was entitled to object to answer the question on that ground. The objection could then be dealt with on its merits.
It was contended by Mr Bennett that the Royal Commissioner should have heard out Mr Lovell's submissions and ruled on them before requiring him to be sworn. In my opinion, given the law as stated in Hadkinson v Hadkinson and Little v Lewis, supra, when Mr Lovell appeared on 17 July 2002 he was at that time a person who had disobeyed the summons to attend on 15 July 2002. Consequently, he was a person who was then in contempt of the Commission. The Commission was entitled to refuse any application by him unless and until he had purged his contempt by accepting the authority of the Commission to call him as a witness and agreeing to be sworn.
Mr Lovell's apparent belief that he was not a person within the terms of reference of the Royal Commission because he was not a police officer was wholly erroneous. The Royal Commission was clearly entitled to summons any person whom it considered may be able to give evidence relevant to the inquiry in relation to the conduct of police officers in the period after 1 January 1985. The Royal Commissioner made his position clear when he described Mr Lovell's submission as "nonsense" which was, of itself, a ruling. The submission was clearly without foundation. There was no obligation on the Royal Commissioner or counsel assisting the Royal Commissioner to give advance notice of the matters about which Mr Lovell was to be questioned.
It was for these reasons that I joined in finding Mr Lovell guilty of each of the offences alleged.
MURRAY J: I concur in the reasons of Malcolm CJ. There is nothing I could usefully add in explanation of my conclusion that, beyond reasonable doubt, the contemnor is guilty of the three contempts to which the motion refers.

STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. They sufficiently express my own reasons for joining in the decision of the Court finding the respondent guilty of each of the offences alleged. There is nothing I wish to add.