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R v Williams (Contempt)

R v Williams (Contempt)

Case [2017] VSC 642 20 October 2017

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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…

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 Williams (Contempt)

Details

AGLC: R v Williams (Contempt) [2017] VSC 642
Case: [2017] VSC 642
Decision Date: 20 OCTOBER 2017

CaseChat Overview and Summary

In the matter of R v Williams, the respondent faced charges of contempt before the Supreme Court of Queensland. The dispute arose under the Major Crime (Investigative Powers) Act 2004, specifically concerning the conduct of the Chief Examiner during the examination of a witness. The court had to determine whether the Chief Examiner could require a witness to take an oath or make an affirmation without identifying the prescribed form of the oath and administering it, and whether a refusal to take an oath or make an affirmation could be valid if these steps were not followed.

The central legal issue was whether the Chief Examiner had the authority to compel a witness to take an oath or make an affirmation under section 36(2)(a) of the Act without explicitly identifying and administering the prescribed form of the oath. Additionally, the court needed to decide if a refusal to take an oath or make an affirmation was valid if the prescribed form of the oath had not been identified and the oath had not been administered. The case hinged on the interpretation of the relevant sections of the Act and the procedural requirements for oath-taking.

The Supreme Court held that the Chief Examiner could require a witness to take an oath or make an affirmation under section 36(2)(a) of the Act, but this requirement could only be validly imposed once the prescribed form of the oath had been identified and administered. The court emphasised that the prescribed form of the oath must be made known and the oath administered for the requirement to be legally binding. Consequently, a refusal to take an oath or make an affirmation before these steps were completed was considered valid. This interpretation ensured compliance with the statutory requirements and protected the rights of the witness.

The final orders of the court were that the Chief Examiner's requirement for the witness to take an oath or make an affirmation without identifying and administering the prescribed form was invalid, and the refusal to take an oath or make an affirmation was deemed valid. The court's decision clarified the procedural obligations under the Act and provided guidance on the proper conduct of examinations under its provisions.

Orders