Court of Appeal (WA)|2012-04-13|Before: Act J, Lure P, Buss JA, Mazza JA, Martin CJ

ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (13 April 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26

File No : CIV 2870 of 2010, CIV 2871 of 2010, CIV 2872 of 2010, CIV 2875 of 2010

Jurisdiction - Criminal contempt - Appeals against sentence by contemnors - Whether the Court of Appeal has jurisdiction to entertain the appeals - Corruption and Crime Commission Act 2003 (WA), s 163 - Supreme Court Act 1935 (WA), s 58(1) - Appeals competent

Criminal contempt - Sentencing - Contempt of the Corruption and Crime Commission - Relevant principles - Error of fact by sentencing judge - Whether error of fact material - Whether sentences manifestly excessive - Whether sentencing judge erred in failing to reduce the sentence of one of the contemnors for his plea of guilty

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), s 130(2)

Supreme Court Act Amendment Act 1957 (WA)

Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 31(1)(a)

Respondent : Corruption and Crime Commission of Western Australia

Ahnee v Director of Public Prosecutions [1999] 2 AC 294

Allcock v Hall [1891] 1 QB 444

Ardrey v Bartlett [2004] WASCA 256

Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695

Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd [1982] FCA 43; (1982) 59 FLR 48

Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483

Australian Iron and Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308

Barmettler v Greer & Timms [2007] QCA 170

Bradshaw v Attorney-General [1998] QCA 42; [2000] 2 Qd R 7

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Carter v The Managing Partner, Mallesons Stephen Jaques (Unreported, WASC, Library No 930374, 15 July 1993)

Carter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993)

Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2003] WASCA 30

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Connell v The Queen (No 5) (1993) 10 WAR 424

Conway v The Queen (2002) 209 CLR 203

Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26

CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458

Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986)

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

Director of Public Prosecutions v Chidiac (1991) 25 NSWLR 372

Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510

Grierson v The King [1938] HCA 45; (1938) 60 CLR 431

Haskins v The Commonwealth [2011] HCA 28; (2011) 85 ALJR 836

Heedes v Legal Practice Board [2005] WASCA 166

Henderson v Taylor [2006] QCA 490; [2007] 2 Qd R 269

Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15

Jemielita v The Queen (1994) 12 WAR 362

Kennedy v Lovell [2002] WASCA 226

Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178

Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65

Lim v Gregson [1989] WAR 1

Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394

Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117

O'Shea v O'Shea and Parnell (1890) 15 PD 59

Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435

Phillips v Ellinson Brothers Pty Ltd [1941] HCA 35; (1941) 65 CLR 221

Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527

R v Abell [2007] QCA 448

R v Ballinger [1961] QWN 24

R v Drever [2010] SASCFC 27

R v Foster; Ex parte Gillies [1937] St R Qd 67

R v Herring (Unreported, NSWSC, No 70140 of 1990, 3 October 1991)

R v Ogawa [2009] QCA 307; [2011] 2 Qd R 350

R v Pearce (1992) 7 WAR 395

R v Queensland Television Ltd; Ex parte Attorney-General [1983] 2 Qd R 648

R v Shannon (1979) 21 SASR 442

Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386

Re Contempt of Court by CBD [2002] ACTSC 87

Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158

Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)

Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846

Scott v Scott [1913] AC 417

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Stanbridge v Director of Public Prosecutions (Unreported, QCA, No 5416 of 1996, 27 May 1997)

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404

The State of Western Australia v O'Rourke [2010] WASCA 141

Thompson v Mastertouch TV Service Pty Ltd (No 3) [1978] FCA 24; (1978) 38 FLR 397

Tieleman v The Queen [2004] WASCA 285

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

Wood v Staunton (No 5) (1996) 86 A Crim R 183

Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

1 McLURE P: I have had the advantage of reading the judgment of Buss JA. I agree with him that the appeals are competent. I also agree that the appeals should be dismissed generally for the reasons he gives. However, I propose to state my own reasons for concluding that the appeals are competent.

2 A right of appeal from a decision of a court was unknown to the common law and is entirely a creature of statute: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47. Thus, this court does not have jurisdiction to hear and determine an appeal unless a statute so provides. See also, s 20 of the Supreme Court Act 1935 (WA) (SCA). Whether a statute so provides is a question of construction.

3 Section 58 of the SCA deals with this court's jurisdiction. It relevantly provides:

(1) Subject as otherwise provided in this Act and to the rules of court, the Court of Appeal shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine -

(a) applications for a new trial or rehearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found given or made in any cause or matter tried or heard by a judge or before a judge and jury;

(b) ... appeals from a judge and from a master whether sitting in court or in chambers;

...

(f) applications and appeals under Part 3 of the Criminal Appeals Act 2004 to the Court of Appeal;

(g) appeals under Part 2 of the Criminal Appeals Act 2004 that are ordered to be dealt with by the Court of Appeal;

(h) applications and appeals under Part 2 of the Criminal Appeals Act 2004 from a judge to the Court of Appeal;

...

(m) all causes and matters and proceedings which -

(a) by any Act of this State, or the rules of court; or

(b) by or under any Imperial Act, or Act of the Commonwealth of Australia,

are required to be heard and determined by the Court of Appeal.

...

(2) Any appeal, application, cause, matter or proceedings referred to in subsection (1) shall lie or may be made to, or may be brought before, the Court of Appeal which, subject as aforesaid, shall hear and determine the same, and questions incidental thereto.

4 Before focussing on issues of construction, it is helpful to sketch the relevant background which includes the historical position in English law relating to contempt of court and appeals therefrom.

5 In England, as in Australia, contempt of court is divided into two categories, criminal contempt and civil contempt. In the period between the commencement of the Judicature Act 1873 (UK) in 1875 and 1960, one of the most important distinctions between criminal and civil contempts in England was that there was a right of appeal in relation to civil contempt but not in relation to criminal contempt. A right of appeal in criminal contempt was provided for in the Administration of Justice Act 1960 (UK), s 13.

6 Prior to the Judicature Act, England had one set of courts administering equity and another set of courts administering the common law. The Judicature Act united and consolidated the superior courts of law and equity in England into one Supreme Court of Judicature which comprised two divisions, the High Court, exercising original jurisdiction, and the Court of Appeal, exercising appellate jurisdiction. Law and equity were thereafter administered together by a single court. Section 19 of the Judicature Act provided that the Court of Appeal had jurisdiction to determine appeals from any judgment or order of the High Court. However, s 19 was subject to s 47 which provided that 'no appeal shall lie from any judgment of the ... High Court in any criminal cause or matter'.

7 In O'Shea v O'Shea and Parnell (1890) 15 PD 59, the Court of Appeal (Cotton, Lindley & Lopes LJJ) held that criminal contempt is a criminal offence punishable at common law by summary process and thus was a 'criminal cause or matter' for the purposes of s 47. Accordingly, there was no right of appeal. This characterisation of criminal contempt as a criminal cause or matter was adopted and applied by the Full Court (Burt CJ, Brinsden & Kennedy JJ) in Cullen v The Queen (Unreported, WASCA, Library No 6450, 25 September 1986). The appellant in Cullen had been convicted of, and sentenced to 6 months' imprisonment for, criminal contempt of court under s 63 of the District Court of Western Australia Act 1969 (WA) (DCA). Section 79 of the DCA conferred a right of appeal on a party to an 'action' or 'matter' who was dissatisfied with a final or interlocutory judgment. Those terms (which were defined) were held to be confined to civil proceedings. As the Full Court characterised the conduct as a criminal cause or matter, s 79 did not apply. Rights of appeal from the District Court to the Supreme Court in connection with criminal proceedings were at that time found in s 688 of the Criminal Code (WA) (the Code). Section 688 of the Code was confined to appeals from indictable offences. The Full Court also concluded that there was no right of appeal under s 58(1) of the SCA. Accordingly, the appeal was said to be incompetent.

8 One of the issues in this appeal is whether the Full Court's characterisation of criminal contempt proceedings as criminal rather than civil is inconsistent with the decision of the High Court in Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15. That was a case of criminal contempt. In considering whether the High Court should order the appellant to pay the costs of the High Court appeal, the court said:

Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the Court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event. There are many instances of the application of this rule to cases of contempt of court in this Court ... (89).

9 I am not presently persuaded that the High Court in Hinch intended to assimilate criminal and civil contempts, at least for the purpose of rights of appeal. The observation, made in the context of a costs application, may mean nothing more than that criminal contempt is an offence which is punished by use of the civil procedures of the court. The existence or otherwise of a right of appeal is not a matter of procedure: Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28. Although it is unnecessary to resolve this issue for the purpose of determining the competence of this appeal, I will explain the basis of my reservation.

10 Civil contempt has always been regarded both in substance and as a matter of procedure as being within the court's civil jurisdiction. The consequence of that characterisation is that there has always been a right of appeal from both a finding of a civil contempt and the dismissal of a civil contempt application. That is not the case in relation to criminal contempt. A statute conferring a general right of appeal which includes contempt will not be construed to confer a right of appeal from the dismissal of an application for criminal contempt: Thompson v Mastertouch TV Service Pty Ltd (No 3) [1978] FCA 24; (1978) 38 FLR 397, 412 (Deane J); Davern v Messel (33, 45 - 61). This results from the application of the rule of statutory construction to the effect that a statutory provision will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly: Davern v Messel (32).

11 The question whether there was a right of appeal from the dismissal of a contempt application arose for determination by the Full Court of the Federal Court (Beaumont J, Lindgren & Lehane JJ agreeing) in Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117, 126 - 137. Microsoft had commenced Federal Court proceedings against the respondent for breach of copyright. The respondent consented to an injunction. Microsoft brought contempt proceedings alleging that the respondent had breached the consent orders. The trial judge dismissed the application and Microsoft appealed. There were allegations of contumelious conduct which may (but not must) transform what would otherwise be a civil contempt into a criminal contempt. The question was whether the general statutory right of appeal (in s 24 of the Federal Court of Australia Act 1976 (Cth)) included an appeal from a dismissal of a contempt of court claim. After considering all relevant authorities, including Hinch, the court concluded that there would be no right of appeal if the respondent's conduct constituted a criminal contempt (137). Beaumont J said:

I share the misgivings expressed by Samuels JA in Chidiac as to the utility of describing any contempt proceedings as 'quasi-criminal'. In the interests of certainty in this area, I further agree with his Honour that for present purposes it is necessary to place the alleged conduct in question in one category or the other, that is, civil or criminal. For some purposes (eg costs and retrials) the distinction between civil and criminal contempt remains important. In other areas (eg the standard of proof and the scope of the accrued federal jurisdiction ...[)] the distinction is now seen to be less important. But it has not been suggested in any of the authorities that the distinction should be ignored for the purpose of determining whether an appeal lies ...

It follows, in my opinion, that Microsoft had a right to appeal here against the trial judge's decision if the proceedings were truly of a civil kind.

... In the whole of the circumstances, although a difficult question, the case should, in my opinion, be treated as civil, rather than criminal.

It follows that I would reject the objection to competency (137).

12 None of this analysis would have been necessary if Hinch was authority for the proposition that an action for criminal contempt is a civil proceeding for, inter alia, appeal purposes.

Construction of s 58 of the SCA

13 Against that background, I turn to the construction of s 58 of the SCA. The first issue is whether pars (f), (g) and (h) of s 58(1) are intended to cover the field in relation to criminal offences at common law. With the exception of the common law of contempt, all criminal offences in this jurisdiction derive from statute. Section 67 of the Interpretation Act 1984 (WA) deals with 'offences'. It provides that: offences are of two kinds, indictable and simple; an offence designated as a crime or misdemeanour is an indictable offence; an offence not otherwise designated is a simple offence; and the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA).

14 Criminal contempt falls outside the scope of the Criminal Procedure Act. Indeed, s 183 of the Criminal Procedure Act provides that it does not affect the authority of a court to deal with and punish a person summarily for an act or omission that is a contempt of the court, but a person cannot be so punished and also punished for an offence under that Act constituted by the same act or omission. This is in recognition of the fact that there is scope for overlap between criminal contempt at common law and s 178 of the Code: see The State of Western Australia v O'Rourke [2010] WASCA 141.

15 The procedure for contempt of court, civil and criminal, is provided for in the civil procedure rules: see O 55 of the Rules of the Supreme Court 1971 (WA) (the Rules). Indeed, prior to an amendment to the Rules in April 2005, the Full Court had, with specified exceptions, sole jurisdiction to order that a person in contempt be committed to prison.

16 The Criminal Appeals Act 2004 (WA) covers the field in relation to appeals from (statutory) offences as defined in the Interpretation Act. Part 3 of the Criminal Appeals Act deals with appeals from superior courts, defined to mean the District Court and Supreme Court. Part 3 is confined to appeals in relation to offenders who are charged with (s 26) or convicted (or acquitted) of an offence on indictment. An 'indictment' is a document that contains one or more charges of an indictable offence and is lodged with a superior court: Criminal Appeals Act, s 4(1); Criminal Procedure Act, s 3(1). Part 3 of the Criminal Appeals Act is not intended to cover the field in relation to criminal contempts at common law. Moreover, in this jurisdiction there is currently no statutory equivalent to s 47 of the Judicature Act which expressly excludes a right of appeal.

17 The remaining question is whether there is a right of appeal from a conviction or sentence for criminal contempt of court under any paragraph of s 58(1) of the SCA.

18 The text of s 58(1)(b) is very wide. It is not in terms confined by reference to any subject matter or category of decisions. In particular, it is not confined to civil proceedings and I see no justification for reading it down to exclude a decision that is sui generis. Indeed, it is inappropriate to read down provisions conferring jurisdiction by imposing limitations not found in the express words unless there is something to indicate to the contrary: The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205. Section 58(1)(b) is wide enough to confer a right of appeal in this case, being an appeal from a judgment of conviction and sentence by a judge of the Supreme Court.

19 For these reasons I conclude that this court has jurisdiction to hear and determine these appeals under s 58(1)(b) of the SCA. This conclusion is not inconsistent with Cullen which concerned an appeal from a decision of a judge of the District Court.

20 However, I am not persuaded that s 58(1)(a) is the source of jurisdiction to appeal from a conviction or sentence for contempt of court or, indeed, the source of any appellate jurisdiction at all. Section 58(1) relates to this court's jurisdiction in general, not just its appellate jurisdiction. Only pars (b), (f), (g), (h) and (i) of s 58(1) confer appellate jurisdiction. Those paragraphs identify the decisions and/or the decision-makers from which or from whom an appeal lies. Paragraph (a) of s 58(1), which refers to 'applications' not appeals, does not do so. If par (a) of s 58(1) was a source of appellate jurisdiction, it would be unrestricted in terms of subject matter and decision-maker. That is obviously not the legislative intent. The parties were unable to assist in identifying the scope and purpose of s 58(1)(a). Arguably, it has two purposes. The first is to confer power on the Court of Appeal to grant relief of the type specified therein, as appropriate, in a proceeding in which it has jurisdiction under s 58(1). There is some support for that view: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [14] - [18]; Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 [71] - [72]; Ardrey v Bartlett [2004] WASCA 256 [29] - [30] (O 63 of the Rules was repealed in April 2005). However, it is not the sole source of power. See for example Criminal Appeals Act, s 30 - s 34. If s 58(1)(a) does not itself confer power, it confirms the existence of the inherent power necessary to the effective exercise of the jurisdiction granted: Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 [35]- [36].

21 The second purpose is to preserve any original jurisdiction that the Full Court had at the commencement of the SCA in 1935 not otherwise expressly referred to in s 58(1). The nature of any such jurisdiction is likely to be found in English legal history.

22 The English courts had original jurisdiction to correct error in the absence of statutory appellate jurisdiction. The correction of error was undertaken by a full court ('the court in banc') which was not an appeal court. The nature and extent of this English jurisdiction has been considered by the High Court: Phillips v Ellinson Brothers Pty Ltd [1941] HCA 35; (1941) 65 CLR 221, 228 - 229; Conway v The Queen (2002) 209 CLR 203 [7] - [29]; Australian Iron and Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308, 315; CDJ v VAJ (1998) 197 CLR 172 [95] - [96]. See also South Eastern Railway Co v Smitherman (1883) 47 JP 773; Allcock v Hall [1891] 1 QB 444, 446 - 447; Baker JH, An Introduction to English Legal History (2002) 82 - 85, 136 - 141; Windeyer WJV, Lectures on Legal History (1938) 102 - 103.

23 That s 58(1)(a) is also a reference to historical non-appellate proceedings is supported by s 59(2), (4) and (6), which relevantly provide:

(2) Subject to the provisions of this Act, any application for a new trial may be made on any ground on which a new trial could be ordered in an action at law immediately before the commencement of this Act.

(4) On the hearing of any such application the Court of Appeal shall have and may exercise all such powers as are exercisable by it upon the hearing of an appeal ...

(6) Except as may be otherwise provided by the rules of court every application -

(i) for a new trial; or

(ii) to set aside a verdict, finding or judgment,

in any cause or matter where there has been a trial by a judge sitting without a jury, shall be made by way of appeal to a Court of Appeal in accordance with the rules of court. (emphasis added)

24 It is apparent from s 59(6) that not all applications to exercise the powers in s 58(1)(a) are required to be made by way of appeal. See the second reading speech for the bill that became the 1935 SCA: Western Australia, Parliamentary Debates, Legislative Assembly, 14 November 1935, 1790 (Mr JC Willcock, Minister for Justice). However, it is well beyond the needs of this case to attempt to identify what, if any, original jurisdiction not otherwise specified falls within s 58(1)(a). It is sufficient to say that it does not confer any rights of appeal.

25 BUSS JA: On 4 February 2011, Martin CJ sentenced each of the appellant in CACV 19 of 2011 (Mr Allbeury), the appellant in CACV 20 of 2011 (Mr Chikonga), the appellant in CACV 21 of 2011 (Mr Silvestro) and the appellant in CACV 22 of 2011 (Mr Smith) to terms of immediate imprisonment as punishment for contempt of the respondent (the Commission).

26 By s 163(3) of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act), relevantly, the Supreme Court has jurisdiction to punish a contempt of the Commission as if the contempt were a contempt of that court.

27 Mr Allbeury was sentenced to a total of 2 years 3 months' imprisonment as punishment for two separate contempts of the Commission. The contempts were constituted by:

(a) during an examination being conducted by the Commission, failing to answer questions that were relevant to an investigation being conducted in relation to 'section 5 offences' under the CCC Act; and

(b) insulting the Commission during the examination.

The individual sentence for the first contempt was 2 years' imprisonment and the individual sentence for the second was 3 months' imprisonment. His Honour ordered that the sentences be served cumulatively.

28 Each of Mr Chikonga, Mr Silvestro and Mr Smith was sentenced to 2 years' imprisonment as punishment for a single contempt of the Commission. Each contempt was constituted by his refusal to be sworn or

affirmed at the Commission with the consequence that no questions were put to him.

29 The appellants have appealed to this court against sentence.

Overview of the facts and circumstances of the contempts

30 At the material time, the Commission was exercising the powers conferred on it by pt 4 of the CCC Act. Part 4 is headed, 'Organised crime: exceptional powers and fortification removal'.

31 The Commission summonsed numerous people to appear and give evidence in relation to the investigation. The people summonsed included each of the appellants.

32 Mr Allbeury was served with a summons under s 96 of the CCC Act to appear before the Commission on 12 November 2010. On that date he attended at the Commission and was affirmed. However, he refused to answer any of the questions put to him by the Commissioner or counsel assisting the Commission. In addition to this refusal, Mr Allbeury repeatedly said, in response to questions, 'get fucked' or 'fuck off'.

33 Mr Chikonga was served with a summons under s 96 of the CCC Act to appear before the Commission on 12 November 2010. On that date he attended at the Commission. However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.

34 Mr Silvestro was served with a summons under s 96 of the CCC Act to appear before the Commission on 11 November 2010. On that date he attended at the Commission. However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.

35 Mr Smith was served with a summons under s 96 of the CCC Act to appear before the Commission on 17 November 2010. Mr Smith attended and reported to the Commission on 18 November 2010. A warrant which was signed on 17 November 2010 for his arrest was not executed as he attended voluntarily on 18 November 2010. The Commissioner held that Mr Smith was at the Commission, on 18 November 2010, under the force of the summons (ts 18/11/10, page 647). However, he refused to be sworn or affirmed and remained mute. As a consequence, no questions were put to him.

36 On 22 November 2010, the Commission filed an originating motion in the Supreme Court against each appellant, pursuant to s 163 of the CCC Act and O 55 r 2 and r 4 of the Rules of the Supreme Court 1971, for an order that he be punished for contempt.

37 Each of the appellants (except Mr Chikonga) appeared on 25 November 2010, and entered a plea of not guilty. The hearing of the Commission's applications was adjourned to 13 December 2010.

38 On 25 November 2010, Martin CJ issued a warrant for Mr Chikonga's arrest as a result of his failure to appear on that date, and adjourned his case to 13 December 2010.

39 The trial of the appellants (except Mr Chikonga) proceeded on 13 December 2010. The evidence adduced by the Commission comprised certificates and affidavits which had previously been served. None of the deponents was required for cross-examination. Mr Allbeury, Mr Silvestro and Mr Smith did not give evidence. Each of them relied solely on legal submissions.

40 On 13 December 2010, his Honour found each of the appellants (except Mr Chikonga) guilty of the alleged contempts.

41 The warrant for Mr Chikonga's arrest was not executed until 15 December 2010. On 21 January 2011, he appeared before Martin CJ and was convicted on his plea of guilty.

42 Each of the appellants was sentenced on 4 February 2011. On that date, his Honour published written reasons for decision. See Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26.

43 Each of Mr Allbeury, Mr Silvestro and Mr Smith relies on a single ground of appeal. Mr Chikonga relies on two grounds of appeal. The single ground relied on by Mr Allbeury, Mr Silvestro and Mr Smith, and ground 1 of Mr Chikonga's grounds, are identical. It is alleged that Martin CJ erred in law by imposing a sentence that was manifestly excessive 'in light of the standards of sentencing customarily observed with respect to these crimes, the place which the criminal conduct occupies in the scale of seriousness of crimes of this type, and all of the appellant's personal circumstances'.

44 Ground 2 of Mr Chikonga's grounds asserts that his Honour erred in law by failing to give him 'any credit for his plea of guilty and thereby failed to reduce the sentence imposed'.

The Commission's preliminary issue as to jurisdiction

45 The Commission raised a preliminary issue as to this court's jurisdiction to entertain the appeals.

46 Counsel for the Commission submitted that there is no right of appeal from a decision of a Supreme Court judge that an alleged contemnor is guilty of contempt or from the sentence imposed in respect of the contempt.

47 Counsel for the appellants, in his written submissions filed before the hearing of the appeal, submitted that this court had jurisdiction to hear the appeal under s 58(1)(a) of the Supreme Court Act 1935 (WA). He did not rely on any other provision of s 58(1).

48 At the hearing, I inquired of counsel for the appellants why he did not rely on s 58(1)(b) of the Act (appeal ts 4 - 7). During the hearing, counsel broadened his submissions to rely on s 58(1)(b). Pursuant to leave granted by this court, the appellants and the Commission filed supplementary written submissions after the hearing in relation to s 58(1)(b).

The organisation of the balance of these reasons

49 It is convenient, first, to deal with the preliminary issue raised by the Commission and then with the grounds of appeal relied on by the appellants.

Preliminary issue: the Supreme Court's jurisdiction under s 163(3) of the CCC Act

50 Section 160(1) of the CCC Act provides that a person served with a summons under s 96 of that Act requiring the person to attend and give evidence who:

(a) refuses or fails to be sworn or make an affirmation; or

(b) fails to answer any question relevant to the investigation that the Commission requires the person to answer,

51 By s 162(1)(a) of the CCC Act, a person who insults the Commission while the Commission is conducting an examination is in contempt of the Commission.

52 The issue of whether a person is in contempt of the Commission is determined by applying the relevant provisions of the CCC Act (in the present case, s 160(1) and s 162(1)(a)) to the relevant facts and circumstances.

53 In the present case, Mr Chikonga, by his plea of guilty, admitted that he was in contempt of the Commission, as alleged. The other appellants were convicted of their alleged contempts after a trial.

54 By s 163(1) of the CCC Act, where a contempt of the Commission is alleged to have taken place, the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt. By s 163(2), such a certificate is prima facie evidence of the matters certified in it.

55 Section 163(3) of the CCC Act provides that 'the Supreme Court has jurisdiction' to punish a contempt of the Commission 'as if the contempt were a contempt of that Court'.

56 The words 'as if' in s 163(3) are a deeming device.

57 In Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158, McHugh J said:

In R v Hughes ((2000) 202 CLR 535 at 551 [24]), this Court said that the use of the phrase 'as if' was 'a convenient device for reducing the verbiage of an enactment'. But the expression always introduces a fiction or a hypothetical contrast. It deems something to be what it is not or compares it with what it is not [115].

See also Haskins v The Commonwealth [2011] HCA 28; (2011) 85 ALJR 836 [95] (Heydon J).

58 The words 'as if' in s 163(3) create a statutory fiction. Each contempt in question is to be taken to be a contempt of the Supreme Court. Jurisdiction is conferred on the Supreme Court to punish each appellant for his contempt of the Commission on the deemed basis that the contempt was a contempt of that court. Order 55 of the Rules of the Supreme Court 1971 (WA) therefore applies. See Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533 [22] (McLure JA, Wheeler JA & Le Miere AJA agreeing).

59 Neither s 163(3) nor any other provision of the CCC Act distinguishes between the General Division of the Supreme Court and the Court of Appeal.

60 Consistently with the deeming device in s 163(3):

(a) the contempt of the Commission which is brought before the Supreme Court is to be classified, if necessary, as a criminal contempt or a civil contempt in accordance with the principles that govern this classification under the law relating to contempts of the Supreme Court;

(b) the contempt is to be classified, if necessary, as a contempt in the face of the Commission or another kind of contempt in accordance with the principles that govern this classification under the law relating to contempts of the Supreme Court; and

(c) the nature and extent of the jurisdiction conferred on the Supreme Court under s 163(3) is commensurate with the nature and extent of any original jurisdiction of the General Division, and any original or appellate jurisdiction of the Court of Appeal, under the law relating to contempts of the Supreme Court.

Preliminary issue: the distinction between civil and criminal contempt

61 There is a distinction between civil and criminal contempt of court. This distinction is based on the difference between proceedings which are remedial or coercive in the interest of a private individual (civil contempt) and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process (criminal contempt). See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson & Deane JJ); Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey & Gaudron JJ).

62 The critical point is whether the contempt proceedings are in essence punitive (in which case they will be classified as 'criminal') or whether they are in essence remedial or coercive (in which case they will be classified as 'civil'). See Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [22] (Kirby J), [132] - [133] (Hayne, Heydon & Crennan JJ).

63 In Witham, Brennan, Deane, Toohey and Gaudron JJ said that the differences upon which the distinction between civil and criminal contempt is based are, in significant respects, 'illusory' (534). Other judges of the High Court have described the distinction as 'unsatisfactory' (Mudginberri Station (107)) and have said that it occasions 'very great difficulty' (Mudginberri Station (108)).

64 In Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, Deane J expressed the view that all proceedings for contempt which seek the imposition of punishment upon an alleged contemnor for a past or continuing breach of the law 'must realistically be seen as essentially criminal in nature' (49). (emphasis added) This was endorsed by Brennan, Deane, Toohey and Gaudron JJ in Witham (534). The view that proceedings for contempt must realistically be seen as, in essence, criminal in nature underpinned the High Court's conclusion that all charges of contempt must be proved beyond reasonable doubt. See Witham (534); Hearne [132].

Preliminary issue: criminal contempt as a common law offence and the nature of the court's jurisdiction

65 There is a long line of authority that a criminal contempt of court is a common law offence whereas a civil contempt of court does not involve an offence. See, for example, Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510, 516 (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ); Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 497 - 498 (Windeyer J); Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 306 (PC).

66 In Western Australia, a summary procedure is adopted for the trial of an alleged criminal contempt. The historical evolution from trial on indictment to summary trial of alleged criminal contempts in England and New South Wales is outlined by McHugh JA in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695, 707 - 708. See also Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [12] - [14] (Gleeson CJ & Gummow J) in relation to the use of the procedure in other Australian jurisdictions.

67 In Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co Ltd [1982] FCA 43; (1982) 59 FLR 48, a Full Court of the Federal Court (Bowen CJ, Evatt & Deane JJ) said that proceedings for criminal contempt are, in some respects, sui generis, but they are nevertheless 'criminal in character', and a finding of guilt of criminal contempt is a 'conviction' of an 'offence' (53).

68 Although a criminal contempt is a distinct offence, it attracts remedies which are sui generis. It is not part of the ordinary criminal law at common law. See Mudginberri Station (115); Ahnee (306).

ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (13 April 2012)

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ALLBEURY -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 84 (13 April 2012)

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