SUPREME COURT OF QUEENSLAND
CITATION:
Scott v NPQ [2021] QSC 321
PARTIES:
MICHAEL JOHN SCOTT (as Presiding Officer of the Crime and Corruption Commission)
(applicant)
vNPQ
(respondent)FILE NO/S:
BS No 9703 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED EX TEMPORE ON:
6 December 2021
DELIVERED AT:
Brisbane
HEARING DATE:
18 November 2021
JUDGE:
Williams J
ORDER:
The orders of the Court are that:
1. I am satisfied beyond reasonable doubt that you are in contempt of the presiding officer in that you refused to answer a question asked in the circumstances stated in the Certificate of Contempt of the applicant dated 29 July 2021.
2. I order that you be imprisoned for a term of 45 days from today to be served wholly in a corrective services facility; account being taken of the full period you have already been in custody since 11 March 2021.
3. I direct that the originating application, the Certificate of Contempt, the affidavits filed herein, the outlines of submissions and the exhibits be placed in an envelope, which is to be sealed and marked “Not to be opened without an order of the Court”.
4. I direct that a copy of these reasons once they are released, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.
CATCHWORDS:
CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the applicant sought an order that the respondent be punished for contempt – where the Crime and Corruption Commission was authorised to hold an investigative hearing in relation to a serious crime – where the respondent was required to attend the hearing – where the respondent refused to answer the question – where the respondent did not claim a reasonable excuse not to answer the question – where the respondent admits that he was in contempt of the applicant pursuant to section 198(1)(c) of the Crime and Corruption Act 2001 (Cth) (the Act) in that he refused to answer a question without reasonable excuse contrary to section 190(1) of the Act – whether the contempt has been established
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where the respondent was remanded in custody in March 2021 and has served a period of approximately 255 days in custody on remand in respect of charges of trafficking in dangerous drugs – where the applicant contended that a punishment in respect of the contempt should be imposed, not taking into account any of the time spent in custody – whether the sentencing judge ought to exercise her discretion to take the pre-sentence custody into account in arriving at the appropriate sentence to impose
O’Connor v CD [2016] QSC 37, considered
O’Connor v…
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- AGLC
- Scott v NPQ [2021] QSC 321
- Case
- [2021] QSC 321
- Decision Date
CaseChat Overview and Summary
The court found that the contempt was serious as it interfered with the administration of justice. The respondent had a relevant criminal history, but no prior offending of the same nature. While the respondent cooperated to some extent, the factors relied upon in mitigation could only have minimal effect on the overall sentence. The court acknowledged that the respondent admitted his contempt without the requirement for a contested hearing and that this needed to be factored in when arriving at the appropriate punishment. The court also noted that the respondent could likely assist the investigation with relevant information, and his refusal to answer questions impeded the investigation. The court considered the different ways non-declarable time in custody has been dealt with in other cases and concluded that the time already served should be taken into account.
The court ordered that the respondent be imprisoned for a term of 45 days from the date of the order, to be served wholly in a corrective services facility, taking into account the full period the respondent had already been in custody. The court also directed that the originating application, the Certificate of Contempt, the affidavits filed, the outlines of submissions, and the exhibits be placed in a sealed envelope marked “Not to be opened without an order of the Court.” Furthermore, the court directed that a copy of these reasons, together with the respondent's full name, be provided to the officer within the Office of Director of Public Prosecutions on a confidential basis.
Orders
Orders of the court
The orders of the Court are that:
1. I am satisfied beyond reasonable doubt that you are in contempt of the presiding officer in that you refused to answer a question asked in the circumstances stated in the Certificate of Contempt of the applicant dated 29 July 2021.
2. I order that you be imprisoned for a term of 45 days from today to be served wholly in a corrective services facility; account being taken of the full period you have already been in custody since 11 March 2021.
3. I direct that the originating application, the Certificate of Contempt, the affidavits filed herein, the outlines of submissions and the exhibits be placed in an envelope, which is to be sealed and marked “Not to be opened without an order of the Court”.
4. I direct that a copy of these reasons once they are released, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In these circumstances, the respondent submits that the appropriate exercise of the Court’s discretion would be to impose a period of six to nine months imprisonment to be wholly served in a correctional facility. Consideration As was recognised by Boddice J in Scott v M:[2]“Contempt is a serious matter. A party has an obligation in an investigative hearing to answer questions. To refuse to answer questions, particularly in circumstances where the person has had the benefit of legal advice, shows a total disregard for the administration of justice. It prevents an effective investigation of serious crime. That is a matter which affects the general public at large.”[2]Unreported; Transcript of Proceedings dated 29 August 2011. The contempt in this circumstance is particularly serious. It clearly goes to the heart of interference with the administration of justice and accordingly, there is a need for both general and personal deterrence in circumstances where a person refuses to answer questions. The respondent does have a relevant criminal history; however, there is no prior offending of the same nature. Whilst the respondent did cooperate with the investigation to the extent that he answered the summons, took the affirmation and was otherwise polite at the hearing, those factors relied upon in mitigation can only have minimal effect on the overall sentence to be imposed. It is acknowledged that the respondent admitted his contempt without the requirement for a contested hearing and that does need to be factored in when arriving at the appropriate punishment. Further, while there may be some aspects of the respondent’s anticipated evidence which could be classified as “peripheral”, on the evidence before the Court it is likely the respondent would be able to assist the investigation in respect of a number of relevant lines of inquiry. Whilst the respondent was not a primary target of the investigation, he was clearly a person who was likely to be able to assist the investigation with relevant information. In these circumstances, the investigation has been impeded. It is also relevant that no explanation was provided by the respondent as to why he declined to answer any questions. Following the initial hearing, I arranged for the matter to be listed for further consideration of the issue of the structure of the sentence, and in particular what use could be made of the time spent in custody in mitigation of the sentence. The respondent was remanded in custody on 11 March 2021 and as at the date of initial hearing had been in custody for a period of 239 days in total, which is approximately eight months. The contempt occurred on 23 July 2021, therefore a period of approximately four months had been spent in custody since that date. The respondent was on remand in respect of the drug trafficking offence, not the contempt. Non-declarable time in custody has been dealt with in the cases in different ways. In the matter of O’Connor v Witness G [2013] QSC 281, Margaret Wilson J concluded that the time in pre-sentence custody would not be declarable. However, her Honour further concluded it would be fair for some allowance to be made for the time already served and she was satisfied that the Court had inherent power in fixing the penalty for contempt to make allowance for it. Her Honour expressed the nominal penalty was seven months and from that, the 33 days already served on remand was deducted. The sentence imposed on that day was for a term of imprisonment of five months and 27 days imprisonment.