R v QF - [2014] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. S CI 05113 of 2013

BETWEEN:

THE QUEEN (on application of the Chief Examiner)	Applicant
and
QF	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2014
DATE OF JUDGMENT:	11 March 2014
CASE MAY BE CITED AS:	R v QF
MEDIUM NEUTRAL CITATION:	[2014] VSC 81

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CRIMINAL LAW – Sentence – Contempt of Chief Examiner – Refusal to swear an oath or make an affirmation – Section 49 of the Major Crime (Investigative Powers) Act 2004 (Vic) – Contempt in respect of examination into serious alleged offences – Contempt frustrated Chief Examiner’s line of investigation but Court not satisfied beyond reasonable doubt that respondent had any meaningful information to give – Early plea of guilty – Excellent prospects of rehabilitation – Submissions on range ignored in light of Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 – Ten weeks’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A.M. Dinelli	Office of the Chief Examiner
For the Defendant	Mr M.A. Tovey QC	Melasecca Kelly & Zayler

HIS HONOUR:

Introduction

On 7 February 2014, the respondent pleaded guilty to a charge of contempt under 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 (Vic) (“the MCIP Act”). The contempt was constituted by the respondent’s refusal to be sworn or to make an affirmation when attending before the Chief Examiner in answer to a witness summons on 26 September 2013 (see s 49(1)(b)).

Before imposing sentence, I shall explain the history of and factual background to the matter and then turn to other factors relevant to penalty.

History of and factual background to the matter

On 15 April 2013, King J made a coercive powers order under the MCIP Act in respect of two organized crime offences – namely, two attempted murders. The coercive powers order was to remain in force for a period of 12 months.

On 5 September 2013, the Chief Examiner issued a witness summons to the respondent pursuant to s 15 of the MCIP Act. The summons required the respondent to attend for examination before the Chief Examiner on 26 September 2013, and from day to day unless excused or released from further attendance, to give evidence in relation to the organized crime offences. The respondent was personally served with the summons on 14 September 2013.

The examination hearing of the respondent commenced on 26 September 2013. The respondent was not legally represented. The transcript of the hearing discloses the following:

a) When advised by the Chief Examiner that he was entitled to have legal representation at the hearing, the respondent said he did not think that would be necessary because he was not going to answer any questions (T 4).

b) Later, the respondent said that, in his view, “this [i.e. his being here] is…

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 QF

Details

AGLC: R v QF [2014] VSC 81
Case: [2014] VSC 81
Decision Date: 11 March 2014

CaseChat Overview and Summary

In this case, the respondent, QF, appeared before the County Court of Victoria to face charges related to contempt of the Chief Examiner under Section 49 of the Major Crime (Investigative Powers) Act 2004 (Vic). The respondent had refused to swear an oath or make an affirmation in response to the Chief Examiner's inquiries. This refusal frustrated the Chief Examiner’s investigation into serious alleged offences, leading to the respondent being charged with contempt.

The central legal issue the court had to address was whether the contempt charge was proven beyond reasonable doubt and, if so, what sentence should be imposed. The court had to determine whether the respondent had meaningful information that could have assisted the investigation but chose not to provide it. Additionally, the court considered the respondent's early guilty plea and prospects for rehabilitation, along with the principles set out in Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323.

The County Court found that while the respondent’s actions did indeed frustrate the investigation, it was not satisfied beyond reasonable doubt that the respondent had any meaningful information to give. The court took into account the respondent's early guilty plea and excellent prospects for rehabilitation. In light of the principles from Barbaro and Zirilli, the court focused on the objective of denunciation and specific deterrence. Ultimately, the court sentenced the respondent to ten weeks' imprisonment.

Orders