Q. That's highly unlikely, is it not?
A. Well, you'll have to ask him that."
195 As I have said, Mr Walker knew before 6 December 2004 of the evidence from his brother and Mr Laycock that implicated him in the Chiswick event. He knew that he would be questioned about that event, among other things, on 6 December 2004. He was "shocked" to be implicated. All of those matters, together with the matters acknowledged by Mr Walker in cross-examination as to the nature of the Chiswick event, make it more rather than less likely that he would have at least some recollection when questioned about the Chiswick event on 6 December 2004. Hesitation, confusion and perhaps some difficulty in recollection of detail might be expected - particularly early in the course of questioning. Total amnesia (which in substance is the correct characterisation of Mr Walker's professed lack of recollection) is so unlikely as to be, absent some explanation, incapable of acceptance.
196 The only explanation offered is that based on Mr Walker's evidence of stress and anxiety, and on the medical evidence. I can accept that the hearing in the Commission was one that caused Mr Walker extreme stress and anxiety: whether, as he says, he was innocent of the activity alleged, or not. I accept that the making of the allegations, and the questions based upon them, were productive of extreme stress and anxiety: again, whether Mr Walker were innocent of the conduct alleged, or not. But I cannot accept that, absent some additional factor, the stress and anxiety so caused (bearing in mind that it would have been building up at least from the time Mr Walker became aware of the evidence implicating him) could, of itself, cause him to have no recollection whatsoever of the Chiswick event or of the details of it that were put to him.
197 In this context, it is necessary to bear in mind that the Chiswick event did occur; and that it had occurred only five months before Mr Walker gave evidence on 6 December 2004. For all the reasons acknowledged by Mr Walker in cross-examination, it was a highly unusual transaction. Although he was "shocked" by the allegations of involvement, it is clear that he understood the allegations to be that he had been knowingly involved in corrupt activity with a serving police officer. All the circumstances of the Chiswick event (including, as I hope I have made clear, all the circumstances that Mr Walker remembered on 18 January 2005 and in his evidence before me) might be thought to have made it something that would live in his memory.
198 I accept that human memory is fallible: that is demonstrated every day in the courts. But I do not accept that the fallibility of recollection is such that a person in Mr Walker's position would have no recollection at all of the matters put to him. On the contrary, I think, common experience is that the fallibility of recollection is likely to extend to the quotidian, the routine, the mundane. Events that are startling or "shocking" are of their very nature more likely to stick in the memory. Although the detail of such events may be lost with the passage of time, the fact of their occurrence, and their broad outline or general nature, will not.
Effect of the medical evidence
199 As I have noted, there is some conflict in the medical evidence as to the ability of Mr Walker to recall, and give instructions in relation to, the matters that were to be put to him. But the only medical evidence of possible impairment in those functions comes from Dr Roberts. Dr Roberts had not seen Mr Walker before the events in question. His assessment was based very substantially on Mr Walker's history. He was not prepared to conclude that Mr Walker might suffer from anything more than "transient difficulties in recollection". He did not accept that Mr Walker suffered from "total amnesia in regard to relevant matters of fact, that were put to Mr Walker".
200 As I have said, Dr Roberts was given an edited transcript of the evidence given by Mr Walker on 6 December 2004. The only reference that Dr Roberts makes to this evidence is in the following terms:
"I note that Mr Walker in response to a variety of questions indicated that he had no recollection. I refer to the edited Transcript of Evidence on 6th December 2004, line (3) question "Are you saying on oath that you have no recollection of that event" and I note the reply given by Mr Walker."
201 That is a reference to the question and answer at CT 274.30-.35 (following the reference to the video tape to which I have referred in para [102] above). Although the question and answer to which Dr Roberts referred forms part of the passage set out in para [103] above, I repeat it here:
"Q. Are you saying on your oath that you have no recollection of that event?
A. I'm saying to you that the depiction of those three people, as you described it, and one of them looked like me - what transpired then and there at that particular place, I can't - I don't remember."
202 It is apparent from the way that Dr Roberts refers to this that he is expressing no view as to the likelihood that Mr Walker did not, as he professed, remember the events shown on that video tape. It is unclear whether Dr Roberts regarded that particular answer as a manifestation of a transient difficulty in recollection or as an example of total amnesia. The former might be surprising in circumstances where, as Mr Walker recognised, the video tape identified a person who looked like him, and who had been identified as such.
203 Dr Roberts was not asked to opine on the consistent and repeated failures of recollection that were features of Mr Walker's evidence in relation to the Chiswick event on 6 December 2004. As a matter of language, I would not describe that evidence as exhibiting "transient difficulties in recollection". Sufficient details were put to Mr Walker, and with sufficient repetition, to jog a mind afflicted by any such "transient difficulties". I therefore do not accept Dr Roberts' opinion of possible "transient difficulties in recollection" as capable of explaining the total failure of recollection, as to those events and as to the underlying assertion of involvement in serious criminal and corrupt activity, on 6 December 2004.
204 For essentially, the same reasons, I do not accept Dr Roberts' assessment of a 5% or less "probability [of] previous difficulties in recollection" as relevant to, or constituting a description of, the extensive - indeed almost total - pattern of non recollection exhibited in Mr Walker's evidence in relation to those topics on 6 December 2004.
205 In this context, I note that neither Dr Menzies nor Dr Westmore referred to the possibility that Mr Walker's medications might impair his recollection or his ability to give truthful and accurate evidence. On the contrary, both seemed to think that the medications were likely to improve the prospect that he could concentrate, and thereby give truthful and accurate evidence.
206 Thus, whilst I accept Dr Roberts' opinions (including as to the possible effects of the medication) as a matter of theoretical possibility, I do not regard those opinions as in any way undermining, or detracting from, the inference that I think is clearly available from the inherent incredibility of the impugned aspects of Mr Walker's evidence. Dr Roberts' opinions are not in any way related to the specific evidence given by Mr Walker in relation to the Chiswick event, or to the differential memory problems apparent from the transcript of his evidence of 6 December 2004; and they are not opinions that are shared by Dr Menzies or Dr Westmore. Nor do I regard the opinions of Dr Casamento and Dr Girgis as having any real impact on my assessment of this problem. In the case of Dr Casamento, his evidence and observations predate the evidence and observations of the three specialist psychiatrists to whom I have referred; and in the case of Dr Girgis, his evidence relates to a state of affairs more than six years before the events in question.
207 I therefore do not accept the medical evidence, viewed in totality, as providing any explanation that could raise a reasonable doubt as to the inference to be drawn from the otherwise incredible evidence of lack of recollection. In my view, the very nature of that evidence, and the absence of any apparent explanation of what is otherwise utterly incredible, is sufficient to demonstrate that Mr Walker's assertions of lack of recollection in relation to the Chiswick event were false, and knowingly so.
Differential powers of recollection
208 In my view, the conclusion that I have reached based on the inherent incredibility of Mr Walker's asserted lack of recollection in relation to the Chiswick event is supported both by his clear recollection (on 6 December 2004) of other events and, in relation to the Chiswick event by his clear recollection of that event in his evidence before the Commission on 18 January 2005 and before me on 21 June 2006.
209 As to the former (differential powers of recollection on 6 December 2004): the reasons given by Mr Walker for his ability to recall, during his examination on 6 December 2004, events other than the Chiswick event may be accepted. In substance, he said, he had good reason to recall the relevant events (and I have referred to those aspects of his evidence at paras [104], [108] and [110] above). But exactly the same comment applies to the Chiswick event. Indeed, one might have thought that for a former police officer, "shocking" allegations of serious criminal and corrupt activity, involving the extortion or attempted extortion of a substantial sum of money on an occasion only five months earlier, might be thought to be even more memorable. Thus, if (contrary to Mr Walker's evidence) those events had occurred, one would expect him to have a clear recollection of them, for precisely the same reasons as (he said) he had a clear recollection of other events. Equally, if one accepts Mr Walker's evidence that he had not been involved, one would expect him to be able to say so clearly and without prevarication.
210 If the matters had been touched on only once, and generally, then the evidence of confusion and stress and anxiety might provide some explanation. But in circumstances where they were dealt with in the way that I have outlined - first generally, and then specifically, with detail - that explanation is in my view unavailable.
211 Particularly in circumstances where Mr Walker was reminded more than once, and in forceful terms, of the unacceptability of "no recollection" answers, and where he persisted in those answers when the relevant matters were put to him thereafter, I think that the differential power of recollection that he exhibited on 6 December 2004 is of itself, and quite apart from the inherent incredibility of the asserted lack of recollection of the relevant events, a sufficient basis to find beyond reasonable doubt that his denial of recollection was false.
Recovery of memory on 18 January 2005
212 When one adds to this the improvement in his recollection, as to the Chiswick event, less than four weeks later (on 18 January 2005), the conclusion is reinforced. I simply do not accept that a person having the recollection that Mr Walker displayed of the Chiswick event on 18 January 2005 could have had the complete lack of recollection of that event to which he testified on 6 December 2004. Nor, for the reasons that I have given in paras [203] to [206] above, do I regard the psychiatric evidence - in particular, that of Dr Roberts - as raising any reasonable basis for doubting what I have just said. Thus, I regard the contrast between his evidence on 6 December 2004 and 18 January 2005 as a third and independent reason for concluding that his asserted lack of recollection on 6 December 2004 was false.
The telephone conversation of 6 December 2004
213 I do not regard the telephone conversation as conclusive, in the sense that I would not rely upon it alone as showing beyond reasonable doubt that the relevant evidence was false, and knowingly and intentionally so. But it does seem to me to be the fair - indeed, I would have thought, almost inevitable - inference from that conversation that Mr Walker was asserting that because he was of "the old school" he was not prepared to give evidence that might be seen as implicating himself or his "mates" in criminal or corrupt activity. In other words, I think, it is the proper inference from that conversation that Mr Walker was indicating that, notwithstanding the protections afforded to him by the legislation in relation to self-incrimination, which were explained to him by the Commissioner and which he understood, he had chosen to take and maintain the position that he did in relation to the Chiswick incident.
214 It is in my view significant that Mr Walker's comments followed his wife's reference to the likelihood of his being charged with perjury. In context, I think, the telephone conversation shows that Mr Walker was determined to persist, for the reasons that he had given, in the attitude (of non recollection) displayed in his evidence earlier that day. The telephone conversation is thus entirely consistent with the inferences that I think can be drawn from that evidence based on its inherent incredibility and on the differential powers of recollection.
Mr Walker's credibility
215 I accept, as I hope I have made clear, that Mr Walker bears no onus of proof. However, in circumstances where he has given evidence, and where that evidence is relied upon (as it was) to support the "defence" of lack of recollection by reason of state of mind, I must assess the credibility of the evidence that was given and that is relied upon.
216 There were unsatisfactory features in Mr Walker's evidence. I refer in particular to:
· what I have said in paras [153] and [154];
· his resort before me to lack of recollection (para [159] above);
· his evidence as to whether the Chiswick event or its underlying transactions should be reported to the Police Integrity Commission; and
· the fact that he did not do so (para [160] above), when clearly he must have realised that he should have done so.
217 I do not regard his evidence as credible. I had the very clear impression that Mr Walker, having committed himself to a story, was determined to stick to it. His evidence did not address (indeed, he shied away from) the manifest implausibility in his asserted lack of recollection. His evidence in relation to what I regard as the plain meaning of the telephone conversation with his wife after the hearing on 6 December 2004 is, to put it neutrally, unworthy of belief. When one adds those considerations to the matters I have mentioned in the previous paragraph, I do not accept his evidence as raising any reasonable doubt in relation to the conclusions that I have reached.
Other matters
218 I acknowledge that there are some troubling aspects of this case. One is that on 18 January 2005, when Mr Walker gave detailed evidence relating to the Chiswick event, he maintained his denial of recollection of the Burwood event. But whilst that could indicate that his denial of recollection in relation to the Burwood event on 6 December 2004 was not knowingly false (or, at least, might raise at least a reasonable doubt on that issue), it does not detract from the inferences that I have said can be drawn, and that I do draw, in relation to his evidence as to the Chiswick event.
219 The second matter relates to the apparent lack of motive. It was made clear to Mr Walker, and he acknowledged that he understood, that in the events that happened, any admission that he made of involvement in criminal or corrupt activity could not be used in evidence against him (except in proceedings for perjury or contempt in relation to that evidence). Further, it is his case - as is apparent from his evidence before me - that in fact he was not involved in criminal or corrupt activity. On that basis, it is legitimate to ask why he repeatedly professed to deny recollection of that which he would be expected to recall.
220 Mr McQuillen did not rely in submissions on any lack of motive. Nonetheless, I took the matter up with the Crown Advocate. He submitted that if the case were otherwise clear, then the fact that no motive could be found for what by hypothesis would be criminal conduct was irrelevant to finding, beyond reasonable doubt, that such conduct had occurred. I accept that this must be so in a case based on direct evidence. But in a case based on circumstantial evidence and inference, it may be legitimate to wonder why a person would have engaged in conduct of the kind alleged; and, if no obvious explanation presents itself, to conclude that there may be some doubt.
221 To a considerable extent, an enquiry into motive is no more than speculation. However, there are a number of possible answers to the question that I posed in para [219] above. One obvious answer is that his evidence before me, of non involvement, might be false. Another answer (of particular significance if the first answer be regarded as open) might flow from what he said to his wife in the telephone conversation after giving evidence on 6 December 2004: see para [213] above.
222 Or it may be, to take another hypothesis, that Mr Walker believed that the Commission had sufficient evidence of his involvement in the activities under investigation, such that his denial of involvement would be seen as false swearing. On this hypothesis (which was not put to Mr Walker, and which must therefore remain no more than a matter of hypothesis) one could understand that he would assert lack of recollection, so as to avoid what might be thought to be the likelihood of prosecution for perjury. But, in circumstances where an answer that implicated him could not of itself be used to convict him, this possible explanation does not offer a complete rationalisation.
223 Another possible explanation is that Mr Walker was unwilling to give evidence that would expose the involvement of those who had retained him to collect the debt (the occasion of the visit to the Chiswick premises) in what, prima facie, appeared to be criminal conduct.
224 There may be other explanations; indeed, the explanation may lie in a combination of factors. The reality, I suspect, is that Mr Walker felt beleaguered, deserted and alone; and in those circumstances, notwithstanding that apparently he had been abandoned by others, he decided, consistent with his membership of the "old school", that ignorance was likely to be the best of extremely uncertain defences. In addition, and notwithstanding his denial, I do think that Mr Walker was concerned by the possible impact on his private investigator's licence of his failure to communicate to the police his understanding in relation to the drug deal that, on his evidence, lay behind the Chiswick event (see para [161] above).
The relevant evidence was intentionally false
225 I am therefore satisfied beyond reasonable doubt that Mr Walker's denial, on 6 December 2004, of any recollection in relation to the Chiswick event was false, in the sense that it was knowingly untruthful. In other words, I find, Mr Walker knowingly gave false answers when he asserted that he had no recollection of the Chiswick event, or of the details of it that were put to him, in the context where, by that answer, it was clear that he was asserting that he had no recollection either way. Notwithstanding the gravity of the allegation, and notwithstanding the need to exercise stringent care in concluding on circumstantial grounds that evidence given on oath was false (in the sense of untrue and known and intended to be so), I find that Mr Walker's evidence on 6 December 2004 in relation to the Chiswick event was, in the sense that I have used the word, false.
226 In those circumstances it follows (and Mr McQuillen did not submit otherwise) that, in the words of Barwick CJ in Keeley (143 CLR at 169), Mr Walker's "false assertion that he could not remember … was a refusal by prevarication to answer the questions." Equally, in the words of Learned Hand J in Appel (211 Fed Rep at 416), adopted by Stephen J in Keeley (143 CLR at 172), I am satisfied beyond reasonable doubt that Mr Walker was "lying so as to fob off inquiry".
227 For the reasons given by Mason and Aickin JJ in Keeley (143 CLR at 178), the persistent assertion "in relation to [the Chiswick event] that he cannot recollect [it] when there is every reason for thinking that he would recall [it]" leads to the conclusion that Mr Walker was "not only giving false answers but … refusing to answer the questions put to him" so that he was "refusing to answer", thereby taking matters "across the borderline that separates mere perjury from contempt".
228 I acknowledge that, as I have said, the facts in this case are quite unlike those in Keeley. But the underlying question is the same. That is why I regard the test laid down in Keeley, and the way that its application was explained in that case, as relevant to this case.
229 In the circumstances, where the Commissioner was enquiring into criminal or corrupt conduct on the part of Mr Laycock, in which conduct Mr Walker was said to have been involved, it is inevitable, once one concludes (as I have done) that the relevant evidence of Mr Walker was false, that one must also conclude that the actual or inevitable intention or consequence of those false answers was to frustrate or obstruct the inquiry of the Commission.
230 Speculation can only go a little way. The question is, whether the doubt as to motive is sufficient to raise a reasonable doubt as to guilt. I do not think that it is, particularly in circumstances where the doubt as to motive is, on one view of events, resolved by one interpretation of Mr Walker's comments to his wife after giving the evidence in question.
Conclusion
231 For these reasons, I find that Mr Walker is guilty of contempt of the Commission in that on 6 December 2004, in relation to a number of questions concerning his involvement in the Chiswick event, in which he was alleged to have been a participant, Mr Walker by his answers falsely asserted an inability to recollect that event, so that he must be taken thereby to have refused or otherwise to have failed to answer the relevant questions.
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