R v Brigham - [2018] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0006

THE QUEEN (on the application of the Chief Examiner)	Applicant
v
ALEX BRIGHAM (a pseudonym)	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19, 26 March 2018
DATE OF JUDGMENT:	27 April 2018
CASE MAY BE CITED AS:	R v Brigham
MEDIUM NEUTRAL CITATION:	[2018] VSC 284

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CONTEMPT – Examination under Major Crime (Investigative Powers) Act 2004 – Contempt – Refusal to be sworn or to make an affirmation – No explanation for contempt – Totality – Major Crime (Investigative Powers) Act 2004 ss 36(2) and 49(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sharp	Office of the Chief Examiner
For the Respondent	Mr C Farrington	Stephen Andrianakis & Associates

HIS HONOUR:

Introduction

On 26 March 2018, Alex Brigham (the respondent) admitted a charge of contempt brought by a written Certificate of Charge issued in the name of the Chief Examiner pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). On [redacted], the respondent refused to take an oath or make an affirmation, as required by s 36(2)–(3) of the Act, when appearing before the Chief Examiner’s delegate in answer to a witness summons. This conduct constitutes contempt of the Chief Examiner pursuant to s 49(1)(b) of the Act.

Maximum penalty

Section 49(1) of the Act creates the offence of contempt of the Chief Examiner. However, the Act does not specify any particular penalty or maximum penalty for such offending.

Before me, the parties correctly proceeded on the basis that the penalty for the respondent’s offending is at large. However, it was argued the five year maximum penalty set out in s 36(4) of the Act, which relates to the specific offence of refusing or failing to take an oath, provides a useful comparator for sentencing purposes in the present circumstances. In R v QF,[1] Croucher J took this approach, and it has been similarly taken in other cases. I agree that this is the approach to be taken in the matter before me.
[1][2014] VSC 81.

Both parties accept that the offending admitted by the respondent warranted a sentence of imprisonment being imposed.

Background to the offending

On 4 August 2016, Coghlan J made a coercive powers order in respect of an alleged organised crime offence. The order was further extended and varied on 3 August 2017, to include a further organised crime offence. Ultimately, the relevant coercive powers order included the following two alleged organised crime offences:

(a) Arson [redacted]; and

(b) Attempted murder [redacted].

On 21 December 2017, the Chief Examiner issued a custody order pursuant to s 18 of the Act requiring the respondent to be brought before the Chief Examiner at 9.30am on [redacted]. Notice of the proposed examination was brought to the attention of the respondent on [redacted] when the summons to attend was served on him.

The custody order stated the general nature…

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 R v Brigham

Details

AGLC: R v Brigham [2018] VSC 284
Case: [2018] VSC 284
Decision Date: 27 April 2018

CaseChat Overview and Summary

The case of R v Brigham involved a defendant who was examined under the Major Crime (Investigative Powers) Act 2004. The defendant refused to be sworn or to make an affirmation as required by the court, leading to an allegation of contempt. This matter was brought before the court to determine whether the defendant's actions constituted contempt of court and, if so, the appropriate consequences for such contempt.

The central legal issues before the court were whether the defendant's refusal to be sworn or to make an affirmation constituted contempt and, if so, the appropriate remedy under the provisions of the Major Crime (Investigative Powers) Act 2004. Specifically, the court had to consider the definition of contempt in this context and whether the defendant's failure to comply with the court's directive to be sworn or affirmed warranted a finding of contempt. The court also needed to assess the implications of the defendant's refusal and whether it could be categorised as a contempt that warranted a specific penalty under the Act.

The court found that the defendant's refusal to be sworn or to make an affirmation was indeed contemptuous as it directly disregarded the court's authority and the legal process. The court noted that the defendant provided no explanation for this contempt, which further supported the finding. The court concluded that the defendant's actions amounted to a contempt of court under the Major Crime (Investigative Powers) Act 2004. The court also considered the totality of the defendant's conduct and determined that the contempt was severe enough to warrant the imposition of a penalty. The court's decision was grounded in the principle that adherence to court directives is fundamental to the proper administration of justice, and any failure to comply must be met with appropriate consequences.

Orders