The Queen v McDonald, Charles Walter

[1983] FCA 339

Re: THE QUEEN
And: CHARLES WALTER McDONALD; STEPHEN BLACK; KENNETH CHARLES MILLER; PETER
JOHN O'DEA; THOMAS McLENNAN
Nos. ACT G34-50, G52-58 of 1982
Penalty

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.

CATCHWORDS

Penalty - Refusal to answer questions before Royal Commission.

In The Matter of Dalton and Ors Unreported (Supreme Court of Victoria, Crockett J., 2 April 1982)

Attorney-General v Holman and Lowe Unreported (Supreme Court of Victoria, Crockett J., 15 March 1982)

The Queen v Reid and Ors Unreported (Federal Court of Australia, Toohey J., 22 December 1982)

HEARING

CANBERRA

#DATE 26:10:1983

ORDER

1. Each of the defendants be convicted with respect to each charge brought against him, save that the charge against Peter John O'Dea in G42 of 1982 be dismissed.

2. Charles Walter McDonald be penalised $450 in G34 of 1982 and $50 in G35 of 1982.

3. Steven Black be penalised $450 in G36 of 1982 and $50 in each of G37 and G38 of 1982.

4. Kenneth Charles Miller be penalised $450 in G39 of 1982 and $50 in each of G40 and G41 of 1982.

5. Peter John O'Dea be penalised $450 in G43 of 1982 and $50 in each of G44 to G50 of 1982.

6. Thomas McLennan be penalised $450 in G52 of 1982 and $50 in each of G53 to G58 of 1982.

7. In default of payment of the penalties or any part therof, a defendant failing to pay be imprisoned for 24 hours.

8. The defendants pay the Crown's costs to be agreed or taxed.

JUDGE1

Each of the defendants other than Mr C.W. McDonald who is the secretary of the Trades and Labour Council in the ACT, is a member of the Builders Labourers' Federation, and each has been charged with the offence of refusing to answer questions put to him in the course of the Royal Commission established to inquire into activities of the Australian Building Construction Employees' and Builders Labourers' Federation. On 4 October 1983 I expressed the reasons for concluding that the defendants were guilty of the offences charged, other than the charge against the defendant, Peter John O'Dea, in proceeding No. G42 of 1982.

Each of the defendants will therefore be convicted with respect to each charge brought against him, save that the charge against the defendant Peter John O'Dea brought in proceeding No. G42 of 1982 will be dismissed.

The attitude which was taken by the defendants in this case was an attitude which was taken by other unionists in other places in Australia with respect to answering questions before this Royal Commission. In the imposition of a penalty, I think it is proper to be guided by what Mr Justice Crockett said In The Matter of Dalton and Ors, an unreported judgment delivered on 2 April 1982. Mr R.W. Hinkley, counsel for the defendants, has referred me to the passage which his Honour cited from an earlier decision of his own, Attorney-General v Holman and Lowe (unreported). His Honour there said:

"On the question of penalty, I pay regard to the fact that each respondent's sense of loyalty to a resolution passed by his union which each appear to have regarded as something of a brotherhood and allegiance was such that in his view it transcended all other considerations. That point of view, is, I think, understandable but plainly it is misguided as it amounts to an attempt by each to take the law into his own hands. Individuals or groups of individuals cannot vote themselves out of the operation of the law or by their actions be permitted to violate the rule of law. Clearly the adherence by the respondents to their union's directions involved acts done as part of a deliberately adopted plan designed, as the terms of the resolution itself concede, to frustrate as far as possible the inquiry which the Royal Commissioner was charged to make."

His Honour drew attention to two other factors that I should mention, and I read again from his Honour's citation from Holman and Lowe's case:

"Then there is nothing to suggest that either of the respondents has previously refused deliberately to testify when required by the law to do so. Also I think it is proper not totally to disregard the fact that each respondent in making his decision not to testify, was not entirely a free agent but was subject to such pressures as membership of an apparently rigorously controlled union might be expected to impose upon him."

In Dalton & Ors, his Honour referred to an additional matter, namely, that the attitude of the members was prompted in part by a desire not to reveal the union's defence to the proceedings against it for deregistration.

I think that all those matters are properly to be taken into account and that this is certainly not a case for the imposition of a term of imprisonment. Had I been left entirely uninstructed on the matter, I might have taken a more severe view than did Mr Justice Crockett, who imposed a fine of $500 in total upon each of the defendants. However, it is proper that I be guided by his Honour. He regarded the refusal to answer questions as in substance one offence and dealt with the imposition of penalty accordingly. Mr Justice Toohey, in his remarks on sentence in The Queen v Reid & Ors on 21 December 1982, took a generally similar view, but chose to impose a penalty of $450 on the first charge brought against each of the defendants, and a penalty of $50 on each of the other charges.

It seems to me that I should be guided by what their Honours did in those cases, for it is proper that there be consistency. The fines imposed do not seem to be heavy, and indeed seem to me to be somewhat light in view of the fact that the defendants were important persons of whom the Royal Commissioner ought to have made inquiry and who could have assisted the Royal Commissioner in his inquiries. The refusal to answer questions must have materially handicapped the conduct of the inquiry. However, consistency is important and I propose to follow the course adopted by Mr Justice Toohey.

In proceeding No. G34 of 1982 with respect to Mr Charles Walter McDonald a penalty of $450 is imposed. In proceeding No. G35 of 1982, a penalty of $50 is imposed. With respect to Mr Steven Black, in proceeding No. G36 of 1982, a penalty of $450 is imposed, and in each of proceeding Nos. G37 and G38 of 1982, a penalty of $50 is imposed. With respect to Mr Kenneth Charles Miller, in proceeding No. G39 of 1982 a penalty of $450 is imposed, and in proceeding Nos. G40 and G41 of 1982 a penalty of $50 is imposed in each case. With respect to Mr Peter John O'Dea, in proceeding No. G43 of 1982 a penalty of $450 is imposed, and in proceeding Nos. G44 of G50 of 1982 a penalty of $50 is imposed in each case. With respect to Mr Thomas McLennan, in proceeding No. G52 of 1982 a penalty of $450 is imposed, and in each of proceeding Nos. G53 of G58 of 1982, a penalty of $50 is imposed. The payment of those penalties will be stayed for 30 days.

In default of payment of the penalties or any part thereof, a defendant failing to pay shall be imprisoned for 24 hours, that period to cover the totality of the fines.

On the question of costs, which were applied for by the Crown, I think it is proper to be guided once again by Mr Justice Crockett in Dalton & Ors. In that case his Honour awarded costs when requested to do so. Counsel for the defendants has asked me to take into account what he regarded as the political aspects of the case, when considering costs. However, I know nothing whatever about the conduct of the proceedings except what is before me. I have not read either the whole of the transcript, nor the report, nor do I know how other people acted in relation to the Royal Commission. This is not an indictable proceeding, and in my opinion it is proper for me to award costs, having been requested to do so. I order that the defendants pay the Crown's costs to be agreed or taxed.