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Michael Murray v The Chief Examiner

Michael Murray v The Chief Examiner

Case [2018] VSCA 144 4 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0081

MICHAEL MURRAY	Applicant
v
THE CHIEF EXAMINER	Respondent

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JUDGES:	WHELAN, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2018
DATE OF JUDGMENT:	4 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 144
JUDGMENT APPEALED FROM:	[2017] VSC 642 (Conviction), [2018] VSC 133 (Sentence) (Riordan J)

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CRIMINAL LAW — Appeal — Conviction — Contempt of Chief Examiner under s 49(1) of the Major Crime (Investigative Powers) Act 2004 on the basis of a ‘refusal to be sworn’ — Relationship between s 36 and s 49 of the Major Crime (Investigative Powers) Act 2004 — Whether Chief Examiner required to attempt to administer oath to witness — Whether Chief Examiner required to identify terms of oath and affirmation — Leave to appeal refused — Major Crimes (Investigative Powers) Act 2004 s 36, s 49 — Fehon v Domican (2002) 127 A Crim R 592 distinguished.

CRIMINAL LAW —Appeal — Sentence — Contempt of the Chief Examiner — Sentenced to 8 months’ imprisonment — Whether sentence manifestly excessive — Purpose of Major Crime (Investigative Powers) Act 2004 is to enable evidence to be obtained about serious organised crime offences — Where applicant adhered to ‘code of silence’ and had relevant prior conviction — Where applicant subject to restrictive management regime in custody — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	Grigor Lawyers
For the Respondent	Ms S Maharaj QC with Ms R Sharp	Office of the Chief Examiner

WHELAN JA

BEACH JA
NIALL JA:

On 20 October 2017, a judge of the Trial Division found the applicant guilty of contempt of the Chief Examiner under s 49(1) of the Major Crime (Investigative Powers) Act 2004 (‘Act’) on the basis that the applicant, being a person attending before the Chief Examiner in answer to a witness summons, refused to be sworn or make an affirmation.[1] Subsequently, the judge sentenced the applicant to eight months’ imprisonment.[2] The applicant has applied for leave to appeal against both his conviction and sentence.[3]
[1][2017] VSC 642 (‘Reasons’). In the reasons for judgment on conviction, the respondent (the applicant before this Court) was identified as Gordon Williams (a pseudonym). The use of a pseudonym is no longer sought by the parties.
[2][2018] VSC 133 (‘Reasons for sentence’).
[3]The finding of guilt is a ‘conviction’ for the purposes of an application for leave to appeal under s 274 of the Criminal Procedure Act 2009. See the definition of ‘conviction’ in s 3 of the Criminal Procedure Act 2009.

The background

The facts are not in dispute and the following summary is largely taken from the reasons for judgment of the primary judge.

On 4 August 2016, the Court made a coercive powers order under s 9 of the Act, with respect to certain specified organised crime offences.

On 1 March 2017, the Chief Examiner issued a…

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 Michael Murray v The Chief Examiner

Details

AGLC: Michael Murray v The Chief Examiner [2018] VSCA 144
Case: [2018] VSCA 144
Decision Date: 4 June 2018

CaseChat Overview and Summary

In the matter of Michael Murray v The Chief Examiner, the applicant sought to appeal against his conviction and sentence imposed under the Major Crime (Investigative Powers) Act 2004. Murray was convicted of contempt of the Chief Examiner after he refused to be sworn during an investigation into serious organised crime offences. The Chief Examiner found Murray in contempt under s 49(1) of the Act, and he was subsequently sentenced to eight months' imprisonment. Murray appealed both the conviction and the sentence, arguing that the Chief Examiner was required to administer an oath and that the sentence was manifestly excessive.

The legal issues before the court were whether the Chief Examiner was obligated to attempt to administer an oath to Murray and whether the Chief Examiner was required to identify the terms of the oath and affirmation. Additionally, Murray argued that the sentence imposed was manifestly excessive, particularly given his adherence to a 'code of silence' and the purpose of the Major Crime (Investigative Powers) Act 2004, which is to facilitate the obtaining of evidence about serious organised crime offences. The court examined the relevant provisions of the Act and considered the case law, including the decision in Fehon v Domican, to determine the obligations of the Chief Examiner and the appropriate sentence in this context.

The court held that the Chief Examiner was not required to administer an oath to Murray, as s 36 of the Act does not impose such a duty. The court also determined that the sentence imposed was not manifestly excessive, taking into account Murray's adherence to a 'code of silence', his relevant prior conviction, and the restrictive management regime in place during his incarceration. The court distinguished Fehon v Domican on the basis that the present case involved a refusal to be sworn rather than an objection to the terms of an oath. Consequently, Murray's appeal was dismissed, and leave to appeal was refused.

The court made no orders regarding costs.

Orders