R v Miles - [2018] VSC 669

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0316

THE QUEEN (on the application of the Chief Examiner)	Applicant
v
OSCAR MILES (a pseudonym)	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2018; 28 February 2018
DATE OF SENTENCE:	9 August 2018
CASE MAY BE CITED AS:	R v Miles
MEDIUM NEUTRAL CITATION:	[2018] VSC 669

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CONTEMPT – Examination under Major Crime (Investigative Powers) Act 2004 (Vic) – Contempt – Refusal to answer questions – No explanation for contempt – Totality – Reasonably good prospects of rehabilitation – Major Crime (Investigative Powers) Act 2004 (Vic) ss 36(4) and 49.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Fisken	Office of the Chief Examiner
For the Respondent	Ms J Fayman	Fayman Lawyers

HIS HONOUR:

Introduction

On 28 February 2018, 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’). The contempt occurred on 7 December 2017 when the respondent refused to answer questions asked by the Chief Examiner’s delegate (‘the examiner’) in answer to a witness summons. The respondent’s conduct constituted contempt of the Chief Examiner pursuant to s 49(1)(b) of the Act.

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

Section 49(10) provides that a contempt of the Chief Examiner is to be dealt with by the Supreme Court as if: (a) the contempt were a contempt of an inferior court; and (b) the Certificate of Charge were an application to the Supreme Court for punishment for the contempt.

The parties correctly proceeded on the basis that the penalty for the present offending before the Court is at large. However, it was argued that the five year maximum penalty provided for by s 36(4) of the Act, relating to the specific offence of refusing or failing to take an oath or make an affirmation, is a useful means of comparison for the present offending. I agree that is a useful approach to be taken in this matter.[1]
[1]See: R v QF [2014] VSC 81 (Croucher J).

Both parties accepted that the offending admitted by the respondent warranted a sentence of imprisonment.

Background to the offending

On 4 August 2016, Coghlan J made a coercive powers order in respect of nine organised crime offences (‘the coercive powers order’). The order was further extended and varied on 3 August 2017. The organised crime offences set out on the coercive powers order included an attempted murder.

On 29 November 2017, the Chief Examiner issued a witness summons pursuant to s 15 of the Act requiring the respondent to attend before the Chief Examiner to give evidence at an examination on 7 December 2017 (‘the witness summons’). The witness summons stated that the…

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 Miles

Details

AGLC: R v Miles [2018] VSC 669
Case: [2018] VSC 669
Decision Date: 9 August 2018

CaseChat Overview and Summary

The case of R v Miles involved the respondent, Miles, who was charged with contempt under the Major Crime (Investigative Powers) Act 2004 (Vic). The dispute centred around Miles' refusal to answer questions during an examination, specifically under the investigative powers act. The matter was heard in the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether Miles' refusal to answer questions amounted to contempt and whether there were reasonably good prospects of his rehabilitation. The court needed to consider the provisions of sections 36(4) and 49 of the Major Crime (Investigative Powers) Act 2004 (Vic), which pertain to the imposition of contempt and the assessment of rehabilitation prospects, respectively.

In delivering its judgment, the court held that Miles' refusal to answer questions constituted contempt as it was a clear disregard for the investigative process. The court found that Miles provided no explanation for his refusal, which exacerbated the contempt. Regarding rehabilitation prospects, the court concluded that there were reasonably good prospects given certain factors, including Miles' cooperation with other aspects of the investigation and his potential for rehabilitation. The court's reasoning led to the decision that the contempt was serious but not irredeemable, balancing the need for accountability against the potential for rehabilitation.

The final orders of the court included a reprimand for Miles, a requirement for him to comply with future examinations, and a direction for ongoing monitoring of his rehabilitation prospects. This decision underscored the court's commitment to upholding the integrity of the investigative process while considering the individual's capacity for rehabilitation.

Orders