R v Williams (Contempt)
[2017] VSC 642
•20 OCTOBER 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0055
| THE QUEEN (on the application of the Chief Examiner) | Applicant |
| v | |
| GORDON WILLIAMS (a pseudonym) | Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 25 SEPTEMBER 2017 |
DATE OF JUDGMENT: | 20 OCTOBER 2017 |
CASE MAY BE CITED AS: | R v Williams (Contempt) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 642 |
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CONTEMPT – Examination under Major Crime (Investigative Powers) Act 2004 (‘the Act’) – Whether the Chief Examiner can require a witness to take an oath or make an affirmation under s 36(2)(a) of the Act without identifying the prescribed form of the oath and administering the oath – Whether there can be a refusal to take an oath or make an affirmation, under s 49(1)(b) of the Act, before the identification of the prescribed form of the oath and administration of the oath.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Langmead QC with Mr A Imrie | Office of the Chief Examiner |
| For the Respondent | Mr D Edwardson QC | Grigor Lawyers |
HIS HONOUR:
Summary
I find the respondent guilty of contempt of the Chief Examiner pursuant to s 49(1) of Major Crime (Investigative Powers) Act 2004 (‘the Act’) in that he did, on 31 March 2017, being a person attending before the Chief Examiner in answer to a witness summons, refuse to be sworn or make an affirmation. In summary, my reasons are as follows:
(a) As a matter of statutory construction:
(i)it is not a necessary precondition to a valid requirement to a witness under s 36(2)(a) that the Chief Examiner identify the terms of the oath and affirmation as prescribed by the Major Crime (Investigative Powers) Regulations 2015; and
(ii)it is not a necessary precondition to a witness refusing to be sworn or to make an affirmation that the Chief Examiner first identifies the terms of the oath and affirmation as prescribed by the regulations; or attempts to administer the prescribed oath and affirmation to the witness.
(b) As a matter of fact, I find that, on 31 March 2017:
(i)the Chief Examiner did validly require the respondent to take an oath or affirmation under s 36(2)(a); and
(ii)the respondent did refuse the valid requirement to take an oath or affirmation within the meaning of s 49(1)(b).
Background
By a Certificate of Charge Charging Contempt of the Chief Examiner dated 31 March 2017, the applicant charges the respondent with contempt committed by refusing to be sworn or to make an affirmation in contravention of s 49(1)(b) of the Act.
Pursuant to s 49(10) of the Act, the Court is required to treat the Certificate of Charge as if it was an application for punishment for contempt of an inferior court.
The uncontested background facts are as follows:
(a)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.
(b)On 1 March 2017, the Chief Examiner issued a witness summons pursuant to s 15 of the Act requiring the respondent to appear before the Chief Examiner on 31 March 2017.
(c)On 31 March 2017, the respondent attended before the Chief Examiner and the Chief Examiner complied with procedural steps and provided explanations as required by the Act. Relevantly, the transcript records the following exchanges between the Chief Examiner and the respondent:
CHIEF EXAMINER: Are you willing to proceed today without legal representation?
RESPONDENT: Mate, I’m not gunna waste anyone’s time. I’m not answering any questions today. I'm not lagging anyone, so you’re wasting your time and mine. If you’re gunna charge me, give me my charges this morning and that’s it. I'm not answering anything.
…
CHIEF EXAMINER: So, [the respondent], that completes the preliminary matters. Do you have any questions about anything I’ve said so far?
RESPONDENT: Nuh.
CHIEF EXAMINER: Do you need to consult further with your legal representative before we commence?
RESPONDENT: Nuh.
CHIEF EXAMINER: Very well. I’m going to direct you to take an oath or make an affirmation. It will be in the form prescribed by the regulations. Now, [the respondent], you’ve indicated to me you’re not going to answer any questions today. Is that right?
RESPONDENT: Correct.
CHIEF EXAMINER: There’s two ways we can proceed. You can and I’m not telling you what to do or advising you what to do, it’s your choice — but you can refuse to take the oath or affirmation or you can refuse to answer questions. Do you understand the difference?
RESPONDENT: Yep.
CHIEF EXAMINER: I’m going to direct you to take an oath or make an affirmation that will be in the form prescribed by the regulations. Are you prepared to take the oath or affirmation?
RESPONDENT: It’s pointless taking the oath if I’m not answering questions, isn’t it?
CHIEF EXAMINER: Well---
RESPONDENT: I’d be swearing an oath to answer truthfully.
CHIEF EXAMINER: Yes.
RESPONDENT: I’m not answering questions, so it’s pointless.
CHIEF EXAMINER: Okay. So let me just understand it: you’re refusing to take the oath or affirmation?
RESPONDENT: Yes.
CHIEF EXAMINER: Thank you. I’m now directing you to take an oath or affirmation in the form prescribed by the regulations. Will you take the oath or affirmation?
RESPONDENT: No.
CHIEF EXAMINER: Are you prepared to tell me, [the respondent], why you won’t take the oath or affirmation?
RESPONDENT: Mate, this is very, very simple. This is set up for people to lag. I’m not a dog. I’m not answering questions. I'm not lagging anyone. Can’t make it any more simple than that. You guys are gunna ask questions about people that I might know or know. I’m not gunna answer any questions.
CHIEF EXAMINER: And why is that?
RESPONDENT: I’m not a dog, mate. I’m not lagging anyone.
CHIEF EXAMINER: That’s your reason?
RESPONDENT: That’s right.
…
CHIEF EXAMINER: Well, you’ve made it clear to me you’re not taking oath or affirmation.
RESPONDENT: That’s right.
CHIEF EXAMINER: If you don’t take the oath or affirmation, I can’t ask you any questions.
RESPONDENT: Okay. So it’s pointless going on.[1]
[1]Emphasis added.
Legislative regime
The purposes of the Act, as set out in s 1, are:
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b) to combat and reduce the incidence of organised crime offences.
Part 4 of the Act makes provision with respect to examinations. Relevantly, s 36 makes provision for the taking of evidence and provides as follows:
(1) At an examination—
(a) the Chief Examiner; or
(b) a legal practitioner representing the witness; or
(c) any person authorised by the Chief Examiner to do so—
may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates.
(2)The Chief Examiner may, at an examination, take evidence on oath or affirmation and for that purpose—
(a)the Chief Examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in the prescribed form; and
(b)the Chief Examiner may administer an oath or affirmation to a person so appearing at the examination.
(3)A person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with subsection (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement.
(4)A person who, without reasonable excuse, contravenes subsection (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
Section 49 of the Act is headed ‘Contempt of Chief Examiner’ and provides relevantly as follows:
(1)A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person—
(a)fails without reasonable excuse to produce any document or other thing the person is required by the witness summons to produce; or
(b)being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination; or
(c)engages in any other conduct that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that Court.
…
(10)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.
(11)A certificate of charge is evidence of the matters set out in or attached to it.[2]
[2]It is perhaps convenient to note that there may be an inconsistency in the drafting of the legislation that is presently irrelevant. An offence under s 36(4) will only be committed if the witness refuses to fails to comply with the Chief Examiner’s requirement to take an oath or to make an affirmation ‘without reasonable excuse’: see s 36(4). Section 49, however, is drafted such that a contempt of the Chief Examiner is committed even if the witness were to have a reasonable excuse within the meaning of s 36(4). In s 49(1)(b), the words ‘without reasonable excuse’ only qualify the refusal or failure to answer any relevant question, rather than also qualifying the first part of the clause. I can see no reason for the different treatment in the two complementary provisions of the Act, particularly having regard to s 50 which contemplates overlapping offences occurring.
The prescribed forms of an oath and an affirmation, for the purposes of s 36(2)(a) of the Act, are respectively contained in Form 3 and Form 4 in sch 1 of the Major Crime (Investigative Powers) Regulations 2015 which provide as follows:
Oath:
I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
…
Affirmation:
I do solemnly, sincerely, and truly declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
The Issue
It is common ground that, under s 49(1)(b) of the Act, there are three elements to the charge of contempt in respect of which I must be satisfied beyond reasonable doubt, being that:
(a)the respondent attended before the Chief Examiner in answer to a witness summons;
(b)the respondent was called as a witness at an examination; and
(c)the respondent refused to be sworn or make an affirmation.
It is also common ground that the evidence establishes the first and second limbs. However, the respondent contends that the evidence does not establish the third limb because:
(a)the oath and affirmation as prescribed by the regulations were not identified to him in terms (‘the Identification Requirement’); and
(b)there was no attempt by the Chief Examiner to have an oath or an affirmation administered to him (‘the Administration Requirement’).
Applicant’s submissions
Senior counsel for the applicant submitted as follows:
(a)The plain meaning of s 49(1)(b) of the Act only requires a refusal by the witness, which can be constituted by an ‘indication or showing by the witness that he is not willing to [be sworn or to make an affirmation]’. Nothing in s 49(1)(b) of the Act incorporates the requirement to actually administer or even attempt to administer the oath. Upon being required to take an oath, a witness who knows the form of the oath or affirmation can recite the words or, in the usual case where a witness does not know the relevant words, the oath will be administered by an officer reading out the appropriate words and the witness repeating them.
(b)Refusal to comply with a direction to take an oath or to make an affirmation is complete in the absence of the further step of a pointless demonstration that the witness refuses to swear or affirm after being requested to repeat the opening words.
(c)It was contended that, although the following authorities did not consider what constituted a relevant refusal, they gave support to the above propositions:
(i)In R v QF [2014] VSC 81, the respondent pleaded guilty to a charge of contempt under s 49(1)(b) of the Act (refusal to be sworn or to make an affirmation when attending before the Chief Examiner in answer to a witness summons). In the reasons for sentencing, the essential element of refusal was described in the following terms:
Ultimately, the Chief Examiner directed the respondent to take an oath or make an affirmation. The respondent declined to do so.[3]
(ii)In Re Reece George Barnes [2016] NSWSC 133, the accused pleaded guilty to a charge of common law contempt, for refusal to take an oath or affirmation in a Supreme Court trial. The relevant refusal consisted of consistently negative responses to being told by the judge that he was required to take an oath or affirmation, and to being asked whether or not he would take an oath or affirmation.[4]
(iii)In Smith v The Queen (1991) 25 NSWLR 1, the New South Wales Court of Appeal gave reasons for their decision on an appeal against sentence. The contemnor had been convicted by a single judge of the Supreme Court, being the judge before whom the common law contempt was committed. The accused was told he was required to take the oath, he was directed to take the oath, and he consistently refused to comply. Beyond such exchange, there was no attempt to administer the oath.
(d)There was no necessity to identify the terms of the oath or affirmation in the prescribed form; and, to the extent that there was any obligation to identify the form, it was adequately complied with by the Chief Examiner by reference to ‘the form prescribed by the regulations’.
[3]R v QF [2014] VSC 81 [5(e)].
[4]Re Reece George Barnes [2016] NSWSC 133 [9]–[12], [16]–[17].
Respondent’s submissions
Senior counsel for the respondent submitted as follows:
(a)The offence of contempt under s 49 of the Act was a statutory offence and accordingly authorities relating to cases of contempt at common law were of limited application. The Act was ‘draconian’ legislation that required that the Court adopt a strict interpretation of the preconditions to an offence under s 49.
(b)It was a precondition to an offence under s 49 of the Act that the refusal to be sworn or make an affirmation occurred after a valid requirement under s 36(2).
(c)Section 36(2) of the Act provided that the Chief Examiner may not only require a person to take an oath or make an affirmation; but it also empowered the Chief Examiner to administer an oath or affirmation. Accordingly, it was a precondition for a refusal under s 49 for the Chief Examiner, at least, to attempt to administer an oath or affirmation to the witness.
(d)The Chief Examiner was only empowered to require a person to take an oath or make an affirmation ‘in the prescribed form’ and therefore it was a necessary precondition, to a refusal by a witness under s 49, for the Chief Examiner to identify the specific terms of the oath and the affirmation.
(e)The only decision which has dealt with the issue of whether there are preconditions to a relevant refusal to take an oath in an analogous statutory context is Fehon v Domican,[5] where:
(i)the magistrate dismissed the information charging the defendant with refusing to take an oath or make an affirmation under s 30 of the National Crime Authority Act 1984 (Cth) on the basis that the member of the National Crime Authority had not satisfied the Administration Requirement, arising under s 30; and
(ii)Studdert J dismissed the appeal on the basis that the member had not complied with the Identification Requirement; and his Honour did not disagree with the Magistrate’s conclusion about the Administration Requirement.
[5](2002) 127 A Crim R 592 (‘Fehon’).
Principles of statutory construction
The Court of Appeal recently considered the principles of statutory construction in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd.[6] I summarise the approach adopted by the Court of Appeal as follows.
[6][2016] VSCA 328 [47]–[55] (Warren CJ, Whelan JA and Riordan AJA).
The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:
(a) the language of the relevant provision, being the text; and
(b) the legislative purpose of the statute.[7]
The legal meaning is ‘the meaning that the legislature is taken to have intended the provision to have’.[8] It may or may not be the same as the literal meaning.[9]
[7]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[8]Ibid 384 [78].
[9]Ibid.
Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:
(a)The primacy of the text has been emphasised by the High Court.[10] It has been said that the process of statutory interpretation starts and ends with the text.[11]
(b)To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context. The context means:
(i) the whole of the Act or other instrument;
(ii) the existing state of the law;
(iii) the mischief that it was intended to remedy;[12] and
(iii) the history of the legislative scheme.[13]
It is only after exhausting this approach, that one can have reference to parliamentary debates or other extrinsic material;[14] and such material cannot displace the clear meaning of the text.[15]
[10]See examples cited in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [56]–[62] and the discussion in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [32]–[48] (Osborn and Kyrou JJA) and Lowe v The Queen (2015) 48 VR 351, 357–9 [12]–[18] (Warren CJ).
[11]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The expression was adopted by the High Court in Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) and also by the Court of Appeal in DPP v Walters (2015) 49 VR 356, 358 [2] (Maxwell P, Redlich, Tate and Priest JJA).
[12] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson,
Toohey and Gummow JJ).
[13]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 306 (Gibbs CJ) 324 and 334 (Aitkin J).
[14]Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, 265 [33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); cited in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [36] (Osborn and Kyrou JJA).
[15]Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J).
If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.
However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in ‘Statutory Interpretation’ as follows:
Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[16]
[16]Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 343–4; referred to with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:
(a) The literal meaning would conflict with other provisions of the statute.
(b) The literal meaning is inconsistent with the purpose of the statute.
(c) The literal meaning is incapable of practical application.
(d)Adoption of the literal meaning would lead to a result, which is absurd, unreasonable or anomalous.[17]
[17]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).
If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:
(a)First, if an alternative construction is to be adopted as the legal meaning, it is necessary that the alternative construction is ‘reasonably open’[18] and ‘consistent with the language in fact used by the legislature’.[19] This is necessary because ‘the task remains the construction of the words the legislature has enacted’.[20] ‘The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’.[21]
(b)Section 35(a) of the Interpretation of Legislation Act 1984 provides that a construction that would promote the purpose underlying the Act is to be preferred to a construction that would not.
(c)If the inconsistency between the literal meaning and the legislative purpose is the result of ‘simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision’, an alternative construction, which is consistent with the legislative purpose, may be more ‘readily’ adopted.[22]
(d)After the identification of an alternative construction, the legal meaning will be determined by balancing:
(i)the strength of the literal meaning as against the alternative construction; and
(ii)the extent to which these meanings are consistent with the promotion of the legislative purpose.
[18]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 348, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[19]Taylor v Owners—Strata Plan No 11564 (2014) 253 CLR 531, 549 [39] (French CJ, Crennan and Bell JJ). Although the Court was here referring to a modified meaning as one which added or omitted words, a fortiori, it must also be a requirement whenever a court is to infer the legal meaning is other than a literal or grammatical meaning.
[20]Ibid.
[21]Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).
[22]Taylor v Owners—Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ). The unique nature of the power to correct drafting errors was recognised in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586. At 592, Lord Nicholls said ‘It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. … This power is confined to plain cases of drafting mistakes.’
This balancing exercise has been explained by High Court as follows:
(a)‘If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.’[23]
(b)‘[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which … is reasonably open and more closely conforms to the legislative intent’.[24]
[23]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
[24]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 348, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
With respect to interpreting a provision as if it contained additional words, guidance has been provided by the plurality of the High Court in Taylor v Owners—Strata Plan No 11564.[25] Their Honours stated that ‘the task remains the construction of the words the legislature has enacted … any modified meaning must be consistent with the language in fact used by the legislature.’[26] The plurality said that whether such an interpretation of a provision, as if it contained additional words, is justified involves a judgment of matters of degree; and explained:
That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ’gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[27]
[25](2014) 253 CLR 531 (French CJ, Crennan and Bell JJ).
[26]Ibid 549 [39].
[27]Ibid 548 [38] (citations omitted).
Application of the principles
After considering the whole of the Act and in particular pt 4, the refusal to be sworn or to make an affirmation, referred to in s 49(1)(b), should be read as a refusal in response to a requirement of the Chief Examiner made in accordance with s 36(2)(a), particularly because there is no other power to require the taking of an oath or the making of an affirmation contained in the Act.
Accordingly, for the offence under s 49(1)(b) of the Act to be established, it is necessary that the Court be satisfied, on the evidence, that:
(a)the Chief Examiner validly required (‘Valid Requirement’) the respondent to take an oath or to make an affirmation in the prescribed form under s 36(2)(a); and
(b)the respondent refused to be so sworn or to make an affirmation.
Did the Chief Examiner make a Valid Requirement?
The words of s 36(2)(a) of the Act are, in my opinion, used in their natural and ordinary meaning and accordingly the question of whether the particular circumstances fall within that statutory description is a question of fact.[28]
[28]S v Crimes Compensation Tribunal (1998) 1 VR 83, 89 (Phillips JA); Ball v Chargelegue [2016] VSC 294 [22] (Riordan J).
The Chief Examiner, in terms, directed the respondent ‘to take an oath or make an affirmation in the form prescribed by the regulations’.[29] By so directing, the ‘Chief Examiner … require[d] [the respondent] either to take an oath or to make an affirmation in the prescribed form’.[30]
[29]See [4(c)] above.
[30]The Act s 36(2)(a).
In my opinion, the plain meaning of s 36(2)(a) does not contemplate that it is a necessary precondition to a Valid Requirement that the form of words as prescribed by the regulations be read or provided to the witness. Neither is there anything in the text of s 36 that supports a construction that a Valid Requirement requires the Chief Examiner to administer, or attempt to administer, an oath or affirmation to the witness.
Senior counsel for the respondent submitted that the fact that the power to administer oaths and affirmations is contained in s 36(2)(b) is indicative of a legislative intention that there ought to be, at least, an attempt to administer an oath or legislation as part of a Valid Requirement. I disagree. The purpose of the Act is ‘to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences’.[31] In my opinion, the plain reading of s 36(2) is more consistent with a construction that the power to require a witness to take an oath or to make an affirmation is quite separate to the power to administer the oath or affirmation so required to be taken or made. The plain reading of s 36(2) would indicate a legislative intention for the Chief Examiner to be empowered:
(a)to require the witness to take an oath or make an affirmation in the prescribed form; and quite separately
(b) to administer an oath or affirmation.
[31]The Act s 1(a).
Put another way, it could be said that s 36(2)(a) provides authority to the Chief Examiner to compel a witness to take an oath or make an affirmation, while s 36(2)(b) is a facultative provision in the sense that it gives lawful authority to the Chief Examiner to actually administer the oath or affirmation so compelled. It appears customary for such a facultative authority to be expressed in statute.[32]
[32]See, eg, ss 110–111A of the Evidence (Miscellaneous Provisions) Act 1958. Query whether the administration of an oath, without statutory authority, would be an offence at common law, see Sir Edward Coke, Third Part of the Institutes of the Laws of England (W Clarke and Sons, 1817 ed) 165; W J Fell and A G Keats, Boland & Sayer on Oaths & Affirmations (Stevens & Sons Ltd, 2nd ed, 1961) 49.
In my opinion, a construction which imposed either of the submitted preconditions to make a requirement of the Chief Examiner valid would necessitate the addition of words to the section that are not consistent with the language in fact used by the legislature; and would not promote the purpose underlying the statute.
Accordingly, the Chief Examiner, by directing the respondent as he did to be sworn or to make an affirmation in the form prescribed by the regulations, made a Valid Requirement.
Did the respondent refuse the Valid Requirement?
As with s 36(2)(a) of the Act, I consider that the words in s 49(1)(b) and in particular the word ‘refuses’ is used in its natural and ordinary meaning.
The Macquarie Dictionary defines ‘refuse’ relevantly as follows:
1. to decline to accept (something offered): to refuse an office.
2. to decline to give; deny (a request, demand, etc).
3to express a determination not (to do something): to refuse to discuss the question.
4. to decline to submit to.
…
7. to decline acceptance, consent, or compliance.
…
The most apt of the definitions is ‘to express a determination not (to do something)’.[33]
[33]Habersberger J also considered this the most apt definition of ‘refuse’ in Talacko v Talacko [2009] VSC 387 [26] in considering a contempt charge allegedly constituted by the allegation that the defendant ‘refuse[d] to permit the Special Referee appointed by the Court to inspect the Property’ contrary to a prior court order: [4].
In Rejman v Dunsmore,[34] Wells J considered that a refusal or failure to comply with reasonable directions of a member of the police force in relation to a requirement to submit to a breath test would be satisfied if the Court was satisfied that there was ‘deliberate, inexcusable, non-compliance’.[35]
[34](1983) 32 SASR 151.
[35]Ibid 159.
In my opinion, the respondent, by his statements referred to in [3(c)] above, refused the Chief Examiner’s Valid Requirement in any of the senses referred to in the Macquarie Dictionary and in the sense referred to by Wells J. In particular, the respondent very clearly ‘expressed a determination not’ to take an oath or to make an affirmation.
Is the Identification Requirement a precondition to a contempt under s 49(1)(b) of the Act?
In the circumstances of this case, I reject the contention that the respondent did not refuse, within the meaning of s 49(1)(b) of the Act, to take the oath or make an affirmation in the prescribed form because the prescribed form had not been read to him. As stated above, whether or not a witness refuses to take an oath or make an affirmation under s 49(1)(b) is a question of fact. There may be circumstances where the witness indicates, for religious or other reasons, a reluctance to take the oath or make an affirmation, which would require that the witness be informed of the form of the oath or affirmation proposed to be administered to them, before it could be concluded that the witness was refusing to take the oath or affirmation in the prescribed form.[36] But that is not this case. The respondent made it clear that he was refusing to take any oath or affirmation in whatever form, including the prescribed form, because, as he asked rhetorically, ‘It’s pointless taking the oath if I’m not answering questions, isn’t it?’
[36]See, eg, R v VN (2006) 15 VR 113, 138 [97]–[98] (Redlich JA, with whom Maxwell P and Buchanan JA agreed).
Is the Administration Requirement a precondition to a contempt under s 49(1)(b) of the Act?
For the following reasons, I also reject the contention that the respondent did not refuse to take an oath or make an affirmation, within the meaning of s 49(1)(b) of the Act, because there was no attempt to administer the oath for the following reasons:
(a)The Chief Examiner directed the respondent to take an oath or an affirmation in the form prescribed by the regulations and, in my opinion, the respondent refused to do so in any ordinary sense of the word ‘refuse’.
(b)On a Chief Examiner issuing a Valid Requirement, a witness may recite the oath or affirmation from memory (if he or she is aware of the form of words) or he or she may recite the form of the oath as it is quoted to him or her in the usual way. In either case, the Chief Examiner is ‘administering’ the oath or affirmation. To administer the oath is ‘to supervise or impose the taking of (an oath, etc)’.[37] In my opinion, there is nothing in the legislation to suggest that, after the Chief Examiner makes a Valid Requirement, a witness is entitled to refuse until the Chief Examiner attempts to administer the oath or affirmation. Or to put the proposition another way, there is nothing in the legislation to suggest that a refusal under s 49(1)(b) could only be proved by conduct after the Chief Examiner attempts to administer the oath or affirmation.[38]
(c)Whilst it may be accepted that s 49(1)(b) of the Act is a penal provision and must be strictly construed;[39] and the Court should not take a ‘near enough is good enough’ approach,[40] in my opinion, a fair reading of the Act as a whole reveals no basis to construe the relevant subsection as requiring an attempt at administration; and I am unable to discern any purpose of the Act that would be promoted by a construction mandating such an inutile precondition to a refusal under s 49(1)(b). No purpose is served by requiring the Chief Examiner to attempt to administer the prescribed oath, and presumably then attempt to administer the prescribed affirmation, after the witness has made it plain that he or she will not take or make either in any form.
[37]Macquarie Dictionary (6th ed, 2013).
[38]A conclusion that Studdert J was ‘hesitant’ to reach in Fehon (2002) 127 A Crim R 592, 596–7 [24]. See [42] below.
[39]DPP v Greelish (2002) 4 VR 220, 224 [17] (Buchanan JA, with whom Phillips JA agreed).
[40]Rankin v O’Brien [1986] VR 67, 72–3 (Southwell J).
Fehon’s case
The above analysis has been undertaken by reference to general principles of statutory construction but without consideration of the decision of Studdert J in Fehon.[41] The relevant facts in that case were as follows:
[41](2002) 127 A Crim R 592.
(a)Section 28 of the National Crime Authority Act 1984 (Cth) empowered a member of the National Crime Authority to summon witnesses to give evidence at a hearing before the Authority and, with respect to the taking of evidence, s 28(5) provided as follows:
The Authority may, at a hearing, take evidence on oath or affirmation and for that purpose:
(a)a member may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member presiding at the hearing; and
(b)a member or a person who is an authorized person in relation to the Authority, may administer an oath or affirmation to a person so appearing at the hearing.
(b)On two occasions, Mr Domican appeared at a hearing and was required by the member to be sworn or affirmed. On the first occasion, Mr Domican was unrepresented and refused to be sworn; and, on the second occasion, his lawyer stated ‘My instructions are to inform the Authority, the hearing, that he does not wish to take an oath or an affirmation and he does not wish to answer any questions’.[42]
[42]Ibid 594 [12].
Mr Domican was summonsed to appear in the Local Court charged under s 30(2) of the National Crime Authority Act 1984 (Cth), which relevantly provided as follows:
A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse:
(a)when required pursuant to section 28 either to take an oath or make an affirmation — refuse or fail to comply with the requirement.[43]
[43]An analogue provision to s 36(4) of the Act. See [6] above.
The Magistrate dismissed the charge on the basis that an essential element of the charge was that the oath must be administered before a person refused to take the oath.[44] In effect, she accepted that there was an Administration Requirement.
[44](2002) 127 A Crim R 592, 596 [19].
On appeal, Studdert J stated that, but for the terms of s 28(5) of the National Crime Authority Act 1984 (Cth), being a power to require a witness to take an oath or to make an affirmation ‘in a form approved by the member presiding the hearing’,[45] he would have hesitated to conclude that refusal to be sworn or take an oath could only be established by conduct after the oath or affirmation had been administered.[46]
[45]Ibid 597 [25] (emphasis in original).
[46]Ibid 596–7 [24].
However, his Honour dismissed the appeal on the following bases:
(a)There was no evidence as to what, if any, form of oath or affirmation had been approved by the member as required by the subsection; and he was not prepared to infer that the member was ‘going to administer an oath or affirmation in a form previously approved’.[47]
(b)Because the section required an oath or affirmation to be taken ‘in a form approved by the member presiding at the hearing’, ‘there could be no relevant refusal or failure until the defendant was made aware of the form of the oath or affirmation required’.[48]
[47]Ibid 597 [28].
[48]Ibid 597–8 [29].
For the following reasons, I do not consider that Fehon is authority for a different conclusion to the one I have reached above:
(a)Although the magistrate decided that the Administration Requirement was an essential element of the offence, she recognised that she was unable to find any authority on the point; and the parts of her reasons referred to in the reported decision of the Supreme Court do not reveal any path of reasoning to her conclusion that there was an Administration Requirement.
(b)I consider that the better reading of the reasons of Studdert J is that he did not accept the magistrate’s general proposition that there was an Administration Requirement.[49]
(c)Studdert J’s decision was expressly based on the particular terms in s 28(5) of the National Crime Authority Act 1984 (Cth), which empowered a member to require an oath or affirmation ‘in a form approved by the member presiding at the hearing’. His Honour was not satisfied on the evidence that any form had been approved by the presiding member and accordingly he decided that, without proof of the form of oath and the informing of the witness of the form so approved, the Magistrate was correct to dismiss the information. I read his Honour as concluding that, unless the Court is satisfied to the requisite standard, that a form of oath or affirmation had been approved by the presiding member, there could be no valid requirement under s 28(5)(a) of the National Crime Authority Act 1984 (Cth).
(d)Section 36(2)(a) of the Act is in sharp contrast to s 28(5)(a) of the National Crime Authority Act 1984 (Cth) because it empowers the Chief Examiner to require a witness to take an oath or affirmation in the form prescribed by the regulations. There is no issue in this case that there was in fact a form prescribed by the regulations. I consider that the fact that, apart from the peculiar provision in s 28(5), Studdert J would have ‘hesitated to conclude that a refusal to be sworn [or to make an affirmation] could only be established by conduct after an oath [or affirmation] had been administered’,[50] to be consistent with my interpretation of s 36(2)(a).
[49]Ibid 596–7 [24].
[50]Ibid.
Conclusion
Accordingly, I am satisfied beyond reasonable doubt that:
(a)on 31 March 2017, the Chief Examiner at an examination required the respondent, being a person appearing at the examination to give evidence, either to take an oath or to make an affirmation in the prescribed form, within the meaning of s 36(2)(a) of the Act; and
(b)the respondent, being a person attending before the Chief Examiner in answer to a witness summons and being called as a witness at an examination, refused to be sworn or to make an affirmation within the meaning of s 49(1)(b) of the Act.
Accordingly, I find the respondent guilty of contempt of the Chief Examiner pursuant to s 49(1) of the Act.
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