Commissioner for the Police Integrity Commission v Walker

Supreme Court of NSW|2006-09-25|Before: McDougall J, Brooking J, Dougall J

CITATION : Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964

JURISDICTION : Common Law Division - Administrative Law List

CATCHWORDS : CONTEMPT - of Police Integrity Commission - where contempt is of serious nature - where requirement for deterrence and denunciation - whether no penalty other than imprisonment is appropriate under s 5(1) Crimes (Sentencing Procedure) Act 1999 - whether aggravating or mitigating factors present under s 21A(2), (3) of the Act

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 R v Aristodemou (Court of Criminal Appeal 60804/93, 30/6/93 (unrep)) Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162 CASES CITED : Ryan v Wright [No 2] [2004] NSWSC 1019 Wood v Galea (1995) 79 A Crim R 567 Wood v Galea (1997) 92 A Crim R 287 Wood v Staunton (No 5) (1996) 86 A Crim R 183

PARTIES : Commissioner for the Police Integrity Commission (Plaintiff) Christopher John Walker (Defendant)

COUNSEL : R D Cogswell SC/P F Singleton (Plaintiff) K D Ginges (Defendant)

SOLICITORS : M M O'Brien, Commission Solicitor (Plaintiff)

COMMISSIONER FOR THE POLICE INTEGRITY COMMISSION v WALKER [2006] NSWSC 964

Para The further evidence 2 The evidence of Mr Lutz 5 The evidence of good character 8 The further medical evidence 25 The pre sentence reports 38 The competing contentions 48 The Court's approach to sentencing 58 Section 3A 61 Relevant case law 63 Application of the principles to the facts of the case 66 The seriousness of the offence 66 Mr Walker's awareness of the consequences 76 The actual consequences on the inquiry 78 The context of serious crime 81 Reason for the contempt 82 Receipt of benefit 83 Apology or contrition 84 Character and antecedents 86 General and personal deterrence 87 Denunciation of the offence 90 Section 3A 91 Aggravating and mitigating factors 94 Analysis 100 Other matters 112 Orders 115

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30108/04 COMMISSIONER FOR THE POLICE INTEGRITY COMMISSION v CHRISTOPHER JOHN WALKER JUDGMENT - on sentence 1 HIS HONOUR: In my principal reasons, dated 14 July 2006 (Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696), I concluded (para [231]) that the defendant, Mr Walker, was guilty of contempt of the Police Integrity 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". In consequence, it is necessary to decide the appropriate punishment to be imposed for that contempt. The further evidence 2 The Commissioner relies on an affidavit of an officer of the Commission, Mr Markus Walter Lutz, showing that there may be further investigations involving Mr Laycock (see paras [1], [15] and [16] of my earlier reasons for an explanation of Mr Laycock's relevance to the work of the Commission). Mr Lutz suggests that the Commission may wish to call Mr Walker to give evidence in connection with those further investigations. 3 Mr Walker relies on evidence of good character and further medical evidence. 4 Pre sentence reports have been prepared by an officer of the Probation and Parole Service. The evidence of Mr Lutz 5 Mr Lutz said that the association between Messrs Walker and Laycock, and their activities together, were a major aspect of the investigation in respect of which Mr Walker was called to give evidence on 6 December 2004 and 18 January 2005. However, he says, that investigation is now complete and the Commission presented its report to Parliament on 14 December 2005. 6 Nonetheless, Mr Lutz says, the Commission is continuing to investigate "related matters" and this continued investigation "remains ongoing". He says that Mr Walker may have knowledge of those matters, that they have not yet been investigated, and that the Commission may wish to take evidence from Mr Walker. 7 There was no challenge to this evidence and I accept it. The evidence of good character 8 Mr Walker relied on four references, each of which was tendered without objection. None of the referees gave oral evidence. 9 The first referee was Mr Kevin J Weaver. Through his company, K J Weaver & Associates Pty Ltd, he carries on the business of investigation, assessment and adjustment of losses of various kinds, including for insurance companies. He first met Mr Walker in 1998 or 1999, after Mr Walker had left the Police Service (for the second time). Shortly thereafter, Mr Walker began to work for the company, carrying out liability investigations. Mr Weaver said that he had the opportunity to observe Mr Walker closely and that "[t]he quality and integrity of his work … was of a high order." 10 Mr Weaver said further that he had met Mr Walker's family "[d]uring the past fifteen years or so". (This seems to me to be inconsistent with the earlier statement that they (ie, Mr Walker and Mr Weaver) first met in 1998 or 1999.) Nonetheless, Mr Weaver says, Mr Walker was "a dedicated family man who gave enormous support to his family". 11 Mr Weaver said that Mr Walker "had always in his relationship with me and my company conducted himself with the highest level of integrity and honesty and has never displayed any instances of improper behaviour." Nonetheless, Mr Weaver said, publicity given to the Commission's findings, which named Mr Walker, caused Mr Walker "great personal distress" and caused clients of the company to instruct Mr Weaver " to not use Chris in any investigations on their behalf". 12 One concern with Mr Weaver's reference is that, although he says that he is aware that Mr Walker is to face Court for sentencing because of the finding of contempt, it does not appear that he is aware of the detailed nature of the findings, or the serious nature of the contempt. Another, and more substantial, problem is that it does not appear that Mr Weaver is aware of the activities in which Mr Walker engaged, in connection with the Chiswick event, as appearing from his own evidence before the Commission. I dealt with that evidence in paras [112] to [115] of my earlier reasons, and with Mr Walker's evidence in this Court relating to that event in paras [145] to [154]. 13 Thus, it appears, Mr Weaver's assessment of Mr Walker's character did not take into account the matters to which I referred in the previous paragraph. Although I accept what Mr Weaver said, so far as it goes, I do not regard it as persuasive. The problem is that the assessment of good character fails to take into account highly significant matters. 14 Another referee, Mr Bruce Evan Russ, has known Mr Walker for 25 years, since Mr Walker employed him to work in the White Horse Hotel, adjacent to Sydney University, of which Mr Walker was then the licensee. Mr Russ says that Mr Walker was "an employer, who demonstrated integrity, industry, loyalty and fairness" and that, accordingly, they became close friends. 15 Mr Russ too speaks of Mr Walker's family life and of his exemplary character as husband and father. He concludes that Mr Walker "has always demonstrated the highest moral standards and impeccable integrity". 16 Mr Russ says that Mr Walker "has fully informed me of the circumstances relating to this matter, and I understand the extremely serious nature of the matter including the possible consequences". Thus, the first deficiency in Mr Weaver's evidence, to which I referred in para [12] above, is not present in the reference given by Mr Russ. However, the second deficiency is. Accordingly, whilst again I accept what Mr Russ says so far as it goes, I think that his assessment of Mr Walker's good character lacks the persuasive force which otherwise it might hold, because it does not take into account the extremely serious matters of conduct to which Mr Walker referred both in his evidence before the Commission on 18 January 2005 and in his evidence in this Court. 17 The third referee, Mr Barry R Blanchette, met Mr Walker when they were both in the Police Force. Mr Blanchette says that Mr Walker "always showed integrity" in his work as a policeman and "was well liked amongst his work colleagues". Mr Blanchette too attests to the strength of Mr Walker's family relationships and to his devotion to his wife and children. 18 As with Mr Russ, Mr Blanchette was "fully informed as to the circumstances and to his being found guilty of contempt". However, it does not appear (unless the words that I have just quoted were intended to convey it) that Mr Blanchette was informed of the other relevant matter to which I referred in para [12] above. Thus, whilst as with Messrs Weaver and Russ I accept Mr Blanchette's evidence so far as it goes, I think that it suffers from failing to address a matter of great relevance. 19 The fourth referee was Mr Barry Kennedy, a retired Inspector of Police. He retired in 1977, but had known Mr Walker during the first period of Mr Walker's police service. Mr Kennedy says that Mr Walker during the years they worked together was "a person of integrity, intensely loyal, committed and compassionate and with a high work ethic". 20 Mr Kennedy refers to the finding of contempt. He accepts that it "is an extremely serious offence", but feels "that it is an abnormal behavioural pattern of Christopher Walker … [considering] his previous exemplary and commendable community and public service." 21 Mr Kennedy says that Mr Walker "has fully informed me of the circumstances in this matter and that he has been found guilty of contempt". It is unclear as to whether the circumstances include the second of the matters referred to in para [12] above. This again raises a question in my mind as to whether Mr Kennedy's assessment of Mr Walker's character was based on what I consider to be all material facts. 22 Notwithstanding the reservations that I have expressed, as to the references individually, it is clear that, taken together, they show the high regard in which each of the referees holds Mr Walker and that each of them based his regard on what he considered to be Mr Walker's exemplary character and conduct, so far as the referee had an opportunity of observing it. Although, as I have said, there is a question as to whether the assessment of character was based on all material facts, nonetheless the references cannot be entirely discarded. 23 There is other evidence that is relevant on this point, including the pre sentence reports (to which shortly I shall turn). Further, it is apparent from the evidence that in 1976, Mr Walker received a Commissioner's Commendation and an award known as the Peter Mitchell Award for the "most outstanding policeman", in connection with his investigation of a serious crime. Those matters are testimony to Mr Walker's character and ability, at least in 1976. 24 If matters went no further, I would conclude, notwithstanding the deficiencies in the references, that Mr Walker was relevantly a man of good character. However, his involvement in the Chiswick event, and the nature of that event, raise a very serious question. Although I acknowledge that Mr Walker has not been convicted of any offence in relation to the Chiswick event (indeed, so far as I know, and so far as it may be relevant, he has not even been charged), nonetheless the circumstances of that incident and his involvement, as appearing from his own evidence, give me very serious doubts as to the reliability of the assessment of his character based on the references and other matters to which I have referred. The further medical evidence 25 What follows should be read in conjunction with paras [164] to [187] of my previous reasons. 26 Mr Walker was referred to the Black Dog Institute at Prince of Wales Hospital for investigation of a possible depressive condition. He consulted Dr Howe Synnott, a psychiatrist at the Black Dog Institute. Dr Synnott furnished a report dated 3 August 2006. 27 Dr Synnott set out a history and his observations; it is not necessary to recount those matters. He provided a possible diagnosis as follows: "Impression: Bipolar Affective Disorder Type 1 (the episodes of elevated moods last only one day but are associated with psychotic-like symptoms), and the depressive episodes appear melancholic in nature. It is likely that when depressed (or manic) he has impaired concentration and memory and makes significant errors of judgment - this would impact on his ability to fulfil the obligations of his job, and to provide the court with all the information it required in his recent court appearance." 28 Dr Synnott recommended medication: "Venlafaxine in association with Lithium Carbonate", which "may need to be monitored by a psychiatrist (Dr J Menzies)." 29 As is apparent from what I have quoted, the diagnosis (or "impression") of Bipolar Affective Disorder Type 1 was based on, among other things, a history given by Mr Walker that included "episodes of elevated mood". No such history appears in the medical reports to which I referred in my previous reasons. However, Mr Walker was not cross-examined on this. 30 Dr Menzies provided a second report. He was given a copy of Dr Synnott's report. He said: "I had diagnosed Mr Walker as having an acute or chronic anxiety state secondary to legal proceedings … . Dr Synnott feels Mr Walker has a bipolar disorder which may explain why Mr Walker has had a poor response to treatments to-date. Diagnosis of bipolar disorder is often confirmed by response to treatment and Mr Walker has been prescribed (but not as yet commenced) both a mood stabilising drug (Lithium) and an antidepressant medication (Venlafaxine). The management of Lithium medication requires initial close monitoring of blood levels and then regular blood level estimation and this may well be very difficult to do if Mr Walker were in jail. Mr Walker and I plan to meet regularly to closely monitor his mood states and consequent behaviours. Jail may have a deleterious effect on his disorder." 31 I do not read Dr Menzies' second report as suggesting that he was prepared, at least at the time he wrote it, to concur in the "impression" stated by Dr Synnott. Nonetheless, it is apparent that Dr Menzies is prepared, if able to do so, to assist Mr Walker with the medication prescribed by Dr Synnott, and to undertake the necessary monitoring of blood levels and other matters. 32 Mr Walker gave evidence on 21 August 2006 that he had not commenced with the medication prescribed by Dr Synnott. He said that Dr Menzies had told him that it was necessary to monitor Mr Walker's blood levels by tests every three days and to adjust the dosage up or down depending on the results of those tests. Mr Walker was concerned (as, it appears from his report, was Dr Menzies) that this might not happen in jail. However, Mr Walker had made no enquiries to see whether or not such regular testing could be undertaken. 33 I accept that Mr Walker was given that advice by Dr Menzies; he was not challenged on this aspect of his evidence, and it is in any event consistent with Dr Menzies' report that such advice would have been given. The evidence was admitted only to prove the communication and not the truth of the matters communicated; but this does not matter. If the truth of the underlying medical issue - the need for regular blood testing and monitoring - is in issue, it is proved by Dr Menzies' second report, which was admitted without objection. 34 There was a further hearing on 14 September 2006, occasioned by the supplementary pre sentence report to which I refer in para [46] below. At that hearing, Mr K D Ginges of counsel, who appeared on the sentencing hearing for Mr Walker, tendered a third report from Dr Menzies. That report stated that Dr Menzies and Mr Walker had had further meetings, with another booked for a week's time; that Mr Walker's psychiatric status was being monitored; and that his various medications "appear to be having additional beneficial effects". Mr Ginges stated that (as was implicit in Dr Menzies' third report) Mr Walker had commenced to take the medication prescribed by Dr Synnott. The Crown Advocate accepted that this was so, and did not require Mr Walker to be called to prove that fact. 35 It is convenient at this point to refer to a report of Dr Rob McMurdo that was tendered on the question of punishment. The report was dated 19 November 1998, and relates to an examination undertaken two days earlier. It is apparent that the examination and report were aimed at assessing and reporting on Mr Walker's continuing fitness to work as a police officer. 36 Dr McMurdo recounted no history of episodes of elevated mood (see para [29] above). Nor did he make any diagnosis (or provisional diagnosis) of bipolar disorder. He did express the opinion that Mr Walker "has developed a reactive depressive disorder, more accurately described as Adjustment Disorder With Depressed Mood (Chronic)". Dr McMurdo said that "[o]n the history given to me, it appears that the problems in the work situation [recounted in the history taken from Mr Walker] were the trigger for his reactive depression." 37 I have to say that I am not sure of the relevance of that report, or specifically of the history taken or opinions expressed by Dr McMurdo, to the question that now requires decision. The pre sentence reports 38 Two pre sentence reports were furnished. The second report was necessary because the first, although it dealt to some extent with the option of periodic detention, did not (despite the command of s 69(1) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act)) report on all the factors specified in s 66(1) of that Act. Specifically, it did not report on the matters referred to in paras (c), (d) and (e). 39 The first pre sentence report dealt with Mr Walker's background, including his family and social relationships and his educational attainments and employment history. It then considered "factors relating to offending", including his attitude to the offence and what were called "health/mental health issues" and "alcohol and drugs issues". 40 In general, what was said reflects, so far as they are relevant, matters to which I have already referred. There is certainly nothing in those sections of the first report that is inconsistent with, or gives me any cause to reconsider, those aspects of the further evidence with which I have already dealt. 41 Of some significance, for present purposes, is what the probation and parole officer records as Mr Walker's "attitude to the offences". The first report stated that: "Mr Walker expressed regret that he is in his present situation, coupled with a sense of resignation and powerlessness to change his predicament. … He expressed remorse for the negative impact his behaviour has had on his family … . He appeared aware of the potential implications of his behaviour and the possibility of his future loss of liberty." 42 The report returned to the topic of regret under the heading "Summary and Community Based Sentencing Options". In that section, the author said that Mr Walker "regularly expressed regret for the way his actions have negatively impacted on his family". 43 The author then assessed a number of options. She stated that Mr Walker was "unlikely to require, or to benefit from, supervision by" the Probation and Parole Service. Neither the Crown Advocate nor Mr Ginges submitted to the contrary. 44 The first report stated that Mr Walker was "assessed as suitable for a community service order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed" the required undertaking (s 86(1)(e)). 45 The first report stated further that Mr Walker was "eligible and has been assessed as suitable for a periodic detention order as per the requirements of … S 66(1) of the Crimes (Sentencing Procedure) Act 1999", and that he had signed the requisite undertaking (s 66(1)(f)). 46 However, the second report changed this last assessment. It stated, relevantly, that the author of the second report had been informed by a colleague "that whilst Mr Walker is assessed as eligible for Periodic Detention, he is considered unsuitable for this sentencing option. His unsuitability is due to his past profession as a detective and the fact that there is only minimum supervision available at the periodic detention facility. This lower security rating is considered to place Mr Walker's safety in a position of possible risk." (emphasis in original). 47 This revised assessment was not challenged. It follows that I cannot be satisfied that Mr Walker "is a suitable person to serve [any] sentence [of imprisonment] by way of periodic detention", and that, accordingly, I could not make a periodic detention order even if otherwise satisfied that it would be appropriate. The competing contentions 48 The Crown Advocate submitted that the contempt was serious, and that appropriate punishment required the imposition of a sentence of full time imprisonment. He laid stress on the serious nature of the offence, on what he said was Mr Walker's awareness of the nature of what he had done, and on the absence of explanation, apology or contrition. 49 The Crown Advocate referred to and summarised a large number of cases dealing with contempt, pointing to the imposition, in many of them, of significant terms of imprisonment. Whilst I accept the general lesson of those cases - that serious contempts of inquiries such as those conducted by the Wood Royal Commission, the Independent Commission Against Corruption (ICAC) and the Commission, are serious, and warrant substantial punishment - I do not think that anything is to be gained by analysing all of them in detail. 50 Mr Ginges laid stress on what he said was Mr Walker's previous good character and on his strong family connection and values. He referred to the problems, including the murder of a colleague (in referring to that event as a "problem" I do not mean to downplay its appalling character), that Mr Walker had experienced during his service and to the hardships and vicissitudes in his life. 51 Mr Ginges referred also to what he said was substantial delay in the hearing of these proceedings. He said that this delay indicated that the Commissioner did not regard the offence as, objectively, a serious one. I have to say that I do not fully understand that submission and that, to the extent that I do understand it, I reject it. 52 Firstly, the only significant "delay" arose when a hearing fixed for 28 July 2005 was adjourned, pursuant to s 57 of the Legal Aid Commission Act 1979, because Mr Walker had appealed under s 56 of that Act to a Legal Aid Review Committee against a decision to refuse him legal aid. 53 Secondly, and in any event, I simply do not understand how the workings of this Court can be reflective of some attitude or opinion of a party to proceedings in them, particularly in circumstances where (as here) that party was not in any way responsible for such delay as there may have been in bringing the proceedings on for hearing. 54 Mr Ginges submitted that this was not a case that called for a custodial sentence. He referred to the evidence as to Mr Walker's state of mind and the desirability that he should be treated. He submitted that a sentence of full time imprisonment would not permit Mr Walker to undertake and continue with his medication, because of the likely difficulties in arranging for appropriate blood tests and monitoring. He submitted further that imprisonment would impose an additional hardship on Mr Walker, as a former policeman, because of the need for protective custody. 55 Mr Ginges pointed to what he said was the absence of aggravating factors, and the presence of mitigating factors. 56 Thus, Mr Ginges submitted, the appropriate sentence was a community service order, or, at worst, a suspended sentence of imprisonment. 57 At the further hearing necessitated by the further pre sentence report, Mr Ginges submitted, in the alternative and without prejudice to his submissions as recorded above, that if the Court were minded to impose a sentence of imprisonment, and not to suspend that sentence, then it should thereupon refer Mr Walker for assessment as to his suitability for home detention (see s 80 of the Sentencing Act). Mr Ginges submitted (qualified as I hope I have made plain) that this would be "appropriate" in the particular circumstances of this case, including Mr Walker's psychiatric condition, the fact that he has now commenced the regime of medication prescribed for him by Dr Synnott and the need for regular monitoring in relation to that medication and his condition. The Court's approach to sentencing 58 The parties accepted that the Sentencing Act applied. They were correct to do so: Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527. 59 There was some discussion as to whether s 4(2) of the Sentencing Act applied, on the basis that the effect of s 118 of the Police Integrity Commission Act 1996 is to create a statutory offence for which no penalty was provided. The alternative argument is that s 119(3)(b), by providing that this Court may punish a contempt "in like manner and to the same extent as if" the contempt were committed in or in relation to proceedings in this Court, made a contempt of the Commission a common law indictable misdemeanour for which no maximum term of imprisonment is provided (see for example Wood v Galea (1995) 79 A Crim R 567 at 573). In the view to which I have come, it is not necessary to resolve this issue. 60 It follows, from the application of the Sentencing Act, that relevant considerations include the following:

(1) The purposes of sentencing, as described in s 3A.

(2) I must not sentence Mr Walker to imprisonment unless I am satisfied, having considered all possible alternatives, that no other penalty is appropriate (s 5(1)).

(3) The alternatives to full time detention set out in Part 2 Divisions 2 and 3 (specifically, in the context of this case, periodic detention (s 6) and community service orders (s 8)) must be considered.

(4) The sentencing discretion must be guided by the factors referred to in s 21A, including aggravating and mitigating factors (sub ss (2) and (3) respectively) and other objective or subjective factors bearing on the seriousness of the offence (s 21A(1)(c)). Section 3A 61 Section 3A provides as follows: " 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender , (d) to promote the rehabilitation of the offender , (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender , (g) to recognise the harm done to the victim of the crime and the community." 62 There is a substantial overlap between s 3A and relevant factors identified in decided cases. Relevant case law 63 A number of cases have described, or listed, factors to be considered in assessing the proper punishment for contempt constituted by failures to give evidence to commissions of inquiry and similar bodies. In Wood v Staunton (No 5) (1996) 86 A Crim R 183, Dunford J said at 185 that a number of cases, to which he had referred, "show that relevant matters for consideration in assessing the proper punishment for this type of contempt include:

whether the contemnor was aware of the consequences to himself of what he did;

the actual consequences of the contempt on the relevant trial or inquiry;

whether the contempt was committed in the context of serious crime;

whether the contemnor has received any benefit by indicating an intention to give evidence;

whether there has been any apology or public expression of contrition;

denunciation of the contempt." 64 In Wood v Galea (1997) 92 A Crim R 287, Hunt CJ at CL gave a somewhat shorter list of factors at 291. They included the first, second, fourth and sixth factors identified by Dunford J in Wood v Staunton (No 5) (the second factor being qualified by the addition of the words "and (it seems) the nature of those consequences themselves"). His Honour identified a further factor, namely whether the contempt was motivated by fear of harm had the contemnor given the evidence. There was no evidence or submission directed to this further factor, and accordingly it does not require consideration. 65 I propose to consider such of the ten factors identified by Dunford J in Wood v Staunton (No 5) as are applicable to the facts of this case, and then the matters specified in s 3A to the extent that, being relevant, they are not already covered. Application of the principles to the facts of the case The seriousness of the offence 66 In Wood v Galea (1995), Hunt CJ at CL said at 571 that "[t]he wilful refusal of a witness to answer questions asked in legal proceedings is a very serious contempt, as it reduces the effectiveness of the administration of justice … ; it is equally serious where the refusal occurs in a Royal Commission … , because it will reduce the effectiveness of the important inquiry for which it was established … . A weak attitude towards such a contempt … would encourage others to act in the same way, and the Commission could thereby be crippled … ." 67 In Wood v Galea (1997), Hunt CJ at CL said at 291, of a contempt constituted by a refusal to answer questions in the Wood Royal Commission, that it was "particularly serious". His Honour said that "the subject matter of the Royal Commission … could hardly have been more important to the whole fabric of the rule of law in this State and, because the frustration of any such investigation by the contumacious refusal of a witness to answer questions assists the escape from discovery of those responsible for the perversion of justice being investigated, the contempt in this case is more gravely serious than any of the cases dealt with in [decisions of the Court of Appeal to which his Honour had referred in an earlier judgment]. I put the respondent's refusal to answer questions in this case in a most serious category of contempt, although I was not satisfied that it was in the worst class of case" (at 291-292). 68 His Honour's remarks were adopted by Dunford J in Wood v Staunton (No 5) at 185. 69 In this context, I think that the work of the Commission, including its importance to the public, may be equated to the work of the Wood Royal Commission, on whose recommendation the Commission was created. 70 In R v Aristodemou (Court of Criminal Appeal 60804 of 1993, 30 June 1994, unreported), Badgery-Parker J, with the concurrence of Carruthers and Finlay JJ, speaking of an offence of false swearing relating to evidence given to the ICAC, said at 4: "Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to gaol except in very particular circumstances." 71 In my view, his Honour's words apply equally to inquiries conducted by the Commission. The importance of the work of the Commission is to be equated to the importance of the work of ICAC. Further, what his Honour said is applicable by analogy to contempt constituted by false swearing. In this respect, it should be noted that in Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162, Mason and Aickin JJ said at 178 that refusals to answer questions are more obstructive of the administration of justice than deliberate falsehoods. This, coupled with their Honours' earlier reference on the same page to the separation of "mere perjury from contempt" (the latter constituted by actual or constructive refusals to answer), suggests that a contempt constituted by an actual or constructive refusal to give evidence ought to be regarded as more serious (and certainly no less serious) than perjury. 72 The objects of the Commission are set out in s 3 of the PIC Act as follows: "3 Principal objects of Act The principal objects of this Act are:

(a) to establish an independent, accountable body whose principal function is to detect, investigate and prevent police corruption and other serious police misconduct, and (b) to provide special mechanisms for the detection, investigation and prevention of serious police misconduct and other police misconduct, and (c) to protect the public interest by preventing and dealing with police misconduct, and (d) to provide for the auditing and monitoring of particular aspects of the operations and procedures of NSW Police." 73 An independent and effective Police Force is an essential part of a modern democratic society. Corruption and misconduct strike at the effectiveness of any Police Force in several ways, including:

(1) By the creation of division and distrust between colleagues (between the corrupt and the clean) thereby reducing the efficient functioning of the Force;

(2) By diminishing public trust and confidence, thereby inhibiting both the provision of information to police and the acceptance of police activities; and

(3) By the suppression, or indeed in the worst cases protection, of criminal activity. 74 The work of the Commission is aimed at the eradication of corruption and misconduct in the Police Force. It is intended to strengthen the effectiveness of the Police Force and the acceptance of its activities. Frustration of that work is a very serious matter indeed. Contempt of the Commission, of the kind found against Mr Walker, has the capacity to frustrate the Commission's work. In the present case, it had the capacity to frustrate an investigation into what was by any standards serious police misconduct, involving in all likelihood both serious criminal activity on the part of some police officers and the covering up or protection of serious criminal activity. 75 If the contempt found against Mr Walker is not of the worst class (to use one of the classifications propounded by Hunt CJ at CL in Wood v Galea [No 3]), it is, nonetheless, of a most serious kind (to use another). Mr Walker's awareness of the consequences 76 In my view, it is clear that Mr Walker was well aware of the consequences to himself of what I have found to be his contempt of the Commission. There are at least two matters that support this conclusion:

(1) Mr Walker was warned repeatedly, in the course of the hearing on 6 December 2004, of the view that might be taken of his responses and of the consequences if they were held to be false: see paras [116] to [120] of my previous reasons; and

(2) It is plain, from the telephone conversation between Mr Walker and his wife after he gave evidence on 6 December 2004 (a conversation that was lawfully intercepted) that both Mr Walker and his wife were acutely aware of the likely consequences of his answers earlier that day: see paras [127] to [131] of my earlier reasons. 77 To the extent that the nature of the consequences is a matter additional to awareness of them (see Hunt CJ at CL in Wood v Galea [No 3] at 291), Mr Walker was specifically warned of the possibility of imprisonment: see the penultimate question and answer set out in para [102] of my previous reasons. The actual consequences on the inquiry 78 Had Mr Walker maintained his attitude, the Commission's inquiry would have been disrupted. The particular incident - what I called in my earlier reasons the Chiswick event - was one in which Mr Walker and his brother, together with Mr Laycock, were involved. The Commission had heard from Mr Walker's brother and Mr Laycock. Nonetheless, it was entitled to have the opportunity to cross-check their accounts against Mr Walker's account. Had he persisted in his professions of want of recollection, the Commission would have been denied the opportunity to do so. 79 Nonetheless, Mr Walker did change his mind. He answered the relevant questions at length on 18 January 2005. No complaint is now made about the falsity or inadequacy of that evidence. Thus, in substance, the potential consequences of Mr Walker's contempt have been avoided. 80 It is this factor in particular that in my view prevents the matter from being placed in the worst class of contempt. The context of serious crime 81 In my view, when Dunford J referred to the contempt being "committed in the context of serious crime", he was referring to the subject matter of the questions, refusal to answer which constituted contempt. On that basis, the contempt did occur in the context of serious crime. The case propounded by the Commission was that Mr Walker, his brother and Mr Laycock went to the premises at Chiswick to extort money from alleged drug dealers: presumably, as an alternative to their arrest, and the confiscation of the whole of the proceeds of their alleged dealings. Mr Walker did not admit to this. Nonetheless, taking his own account of the Chiswick event, his story was that he had been retained by drug dealers to obtain payment of money owed to them for the sale of a substantial amount of illegal drugs, in circumstances where he had no intention of reporting this, or the suspicions that he held concerning it, to the Police (see paras [151] to [153] and [160] of my previous reasons). In my view this of itself is sufficient to show that the contempt that I have found proved was committed in the context of serious crime. Reason for the contempt 82 Mr Walker has offered no reason. I am left in a state of speculation, as I was earlier: see paras [218] to [224] of my previous reasons. In circumstances where Mr Walker could have provided an explanation but did not do so, I do not propose to draw any inference favourable to him in connection with this factor. Receipt of benefit 83 The evidence does not suggest that Mr Walker has received any benefit by indicating an intention to give evidence. Apology or contrition 84 The only remorse or contrition that Mr Walker has expressed relates to the effect of the events on his family: see paras [41] and [42] above. He has offered no apology, nor expressed any contrition, to this Court. 85 Mr Ginges submitted that Mr Walker was not prepared to apologise, or express contrition, in circumstances where his defence had been that he did not intentionally refuse to answer, or fob off, the relevant questions. He said that Mr Walker was not prepared to put himself in a situation where it could be thought that his defence was an "abuse of process" (to use Mr Ginges' words). I understand the logic of this position. I understand further that any apology or expression of contrition following upon the finding of contempt could be seen, at least by the cynical, to relate to the finding rather than to the underlying conduct. Nonetheless, the position is that, although for understandable reasons, there is neither apology nor expression of contrition. Character and antecedents 86 I refer to what I have said in paras [22] to [24] above and to what I say in paras [97] to [99] below. General and personal deterrence 87 I do not think that considerations of personal deterrence are significant. I am reasonably confident that the experience of this case will make it plain to Mr Walker that, if he is called as a witness by the Commission in the future, he must give honest evidence to the best of his ability; and I am reasonably confident that he would seek to do so. 88 General deterrence is another matter altogether. To my mind, the punishment must be such as to make it plain to those whom the Commission might call as witnesses in the future that they must give evidence, and must do so honestly and to the best of their ability. Any punishment that is not an effective deterrent to others would be inadequate; and any punishment that focussed only on the need (or lack of it) for personal deterrence, without sending the clearest possible warning to others, would likewise be inadequate. 89 Prima facie, nothing less than a substantial sentence of imprisonment would meet the needs of general deterrence. I refer to what Badgery-Parker J said in Aristodemou (see para [70] above). Denunciation of the offence 90 In my view, the public interest requires that the punishment should make plain, and that in that sense it should "fit", the serious infringement of public law that I have found has occurred in this case. Again, I think, adequate denunciation requires a substantial sentence of imprisonment. I regard what Badgery-Parker J said in Aristodemou as equally applicable under this heading. Section 3A 91 In substance, what I have said deals largely with the purposes of sentencing set out in s 3A of the Sentencing Act, to the extent that they are relevant. However, paras (d) and (e) of s 3A require specific attention. 92 Paragraph (d) draws attention to the purpose of promoting the rehabilitation of the offender. I take that to refer to "rehabilitation" from a lifestyle involving criminal conduct. I do not think that rehabilitation, in this strict sense, is relevant. Nonetheless, there is a wider purpose that could be described in a more general sense as rehabilitative. I refer to the course of treatment undertaken by Mr Walker for his possible bipolar, and probable depressive, conditions. It is clearly in both his interests and those of society for him to continue with his present regime of medical supervision and treatment. That is something that I should bear in mind in determining the appropriate punishment. 93 Paragraph (e) promotes as a purpose making the offender accountable for his or her actions. That is separate to both deterrence and denunciation (which are specifically covered in paras (b) and (f) respectively). Nonetheless, I think, very similar considerations apply. In particular, I think, a sentence that does not adequately denounce the offence is unlikely to be one that would hold Mr Walker appropriately accountable for his wrongdoing. Aggravating and mitigating factors 94 In this context (s 21A(2), (3) of the Sentencing Act) it is necessary to bear in mind that the "offence" referred to is that of which the person has been found guilty and for which he or she is to be sentenced: contrast the "context of serious crime" consideration referred to in the fourth of the categories listed by Dunford J. 95 I do not think that any of the aggravating factors set out in s 21A(2) are present. Specifically, as to para (n), there is no evidence that Mr Walker, his brother and Mr Laycock had in any way planned or coordinated their evidence: this was not put to Mr Walker; it was not otherwise demonstrated; and it formed no part of the Crown Advocate's submissions. 96 There are a number of mitigating factors present:

(1) The offence was not part of a planned or organised criminal activity (para (b)).

(2) Mr Walker has no significant record of previous convictions (I do not regard a mid range PCA offence as showing the contrary) (para (e)).

(4) Mr Walker has provided assistance to the Commission, in giving evidence on 18 January 2005 (para (m), perhaps by analogy). 97 It will be noted that I have not referred to good character (para (f)). For the reasons that I have given, I have some doubt about the ability of the character evidence tendered on behalf of Mr Walker to sustain a conclusion that he could be regarded as having been hitherto of good character: see paras [8] to [24] above. 98 However, a number of relevant matters emerge from what I have said in those paragraphs:

(1) I think it is open to me to conclude, and I do conclude, that, apart from this offence and the circumstances with which it was concerned (specifically, the Chiswick event), Mr Walker was a man of good character, highly regarded by friends and colleagues, and with strong family connections and values.

(2) Nonetheless, those general impressions are clouded by the nature of the Chiswick event, even on Mr Walker's version of it; that event, and his evidence of the circumstances in which it occurred, reflect badly on his general character.

(3) Mr Walker rendered valuable service as a police officer. His service was recognised by the commendation and award to which I have referred.

(4) On any view, Mr Walker has serious psychological, and perhaps psychiatric, problems. It is in the interests of himself, his family and indeed the wider community that he seek to deal with those problems under appropriate medical supervision and, if so advised, by the use of appropriate medication.

(5) I have no doubt that Mr Walker's problems were either caused or significantly contributed to by his disenchantment with the Police Force and by the murder of a colleague. 99 Mr Walker told the probation and parole officer, and those who provided references have confirmed, that he was dismayed by corruption in the Police Force, and accordingly left it for the first time. When he rejoined, he reported that he was treated as an outsider (because of his age). During his second period of service, a colleague was murdered. Mr Walker told the probation and parole officer, and I accept, that these matters - particularly the latter - caused him very significant stress, which he sought to alleviate by the use (or, in truth, abuse) of alcohol. I have no doubt that these matters placed stress on him and his family. It is a credit to all of them that they have remained together, and that Mr Walker's family (both according to the character evidence and by my own observations in court during the hearing) provided him with strong support during this difficult period of his life. Analysis 100 I start from the position that, as s 5(1) of the Sentencing Act provides, I should not sentence Mr Walker to imprisonment unless I am satisfied that no other penalty is appropriate. However, I think, I am bound to recognise that, prima facie, the serious nature of the offence, the requirement for general deterrence and the importance of denunciation all point to the conclusion that any punishment less than a sentence of imprisonment would be inadequate. In other words, I think, the cases to which I have referred show that, prima facie, and in the words of s 5(1), "no penalty other than imprisonment is appropriate." 101 I have considered alternative forms of punishment. The evidence makes it plain that Mr Walker does not have the resources to enable him to pay any fine, let alone a fine of such magnitude as might be thought, in an exceptional case, adequate to punish the offence of which I have found him guilty. 102 Nor do I think that a community service order would be appropriate in the facts of this case. To my mind, such an order would fail entirely to meet the requirements of general deterrence and denunciation, and would not be (nor would it be seen as) a punishment appropriate to hold Mr Walker accountable for his actions. 103 The question then becomes, whether the prima facie position to which I have referred is displaced or modified by any relevant factor. 104 I make allowance for the fact that Mr Walker's service as a police officer was of value, and, specifically, that it was recognised by the commendation and award to which I have referred. I take into account also his strong family connection and values, and the high esteem in which he is held by friends and colleagues. I take into account the circumstance that he has suffered already by reason of the publicity given to the Commission's inquiry and, more generally, by reason of the hardships to which I have referred. I take into account the circumstance that, apart from the inquiry and the events with which it was concerned, he appears to have been a person of good character. 105 To my mind, none of those matters justifies any departure from the prima facie position that I have stated. They go, at most, to the length of the term of imprisonment that might be imposed and to the terms on which it is to be served. 106 There are, however, three matters of greater significance. The first is that it is likely that Mr Walker, as a former serving police officer, would suffer greater hardship in prison than a prisoner without that background. If this is not a matter of which I can take judicial notice, it is in any event apparent from the supplementary pre sentence report. As I understand it, the consequences are that Mr Walker would be likely to be held in protective custody, at least for some period of any term of imprisonment. 107 The second matter is that Mr Walker repented of his contempt, to the extent that (although only after these proceedings were commenced) he gave evidence concerning the relevant events. I note that the Commissioner does not challenge the sufficiency or truthfulness of that evidence. Mr Walker is entitled to credit for this change of attitude, even if it be thought that it was prompted by the institution of these proceedings. 108 The third matter relates to Mr Walker's psychiatric condition and his regime of medication. I have referred already to the prescription of lithium as a possible cure for the possible bipolar disorder diagnosed (as an "impression") by Dr Synnott. I accept that if this medication is to have a chance to work, Mr Walker will require constant monitoring of the levels of lithium in his blood, and of his mood and state of mind. It may be thought to be unlikely that these things - specifically, the constant monitoring of his mood and state of mind - will occur if any sentence of imprisonment is ordered to be served full time. I accept that this would impose additional hardship on Mr Walker. (In saying this, I accept that I can recommend that Mr Walker receive appropriate monitoring both in relation to his medication and to his mood and state of mind, and I accept that the Department of Corrective Services would do its best to carry out any such recommendation. Nonetheless, monitoring of the mood and state of mind of a person suffering from possible (bipolar disorder) and probable (depression) psychiatric illnesses requires attention that is both constant and skilled, and I have very grave doubts that the resources of the Department are sufficient to enable such monitoring to occur.) 109 An appropriate sentence of imprisonment must take into account all the factors to which I have referred, including the valuable service that Mr Walker rendered to the community in his work as a police officer. Nonetheless, I do not think that this and other personal factors dictate that there should be no sentence of imprisonment; as I have said, I think that they go to the length of the term of that sentence and to the conditions on which it should be served. 110 Balancing all the factors to which I have referred, I conclude that the appropriate punishment for the serious offence of which I have found Mr Walker guilty is that he be sentenced to imprisonment for six months. The personal factors to which I have referred justify what might otherwise be seen (I refer once again to the judgment of Badgery-Parker J in Aristodemou) as an inappropriately short sentence. I wish to make it plain that, but for those factors, I would have imposed a sentence of imprisonment of significantly greater duration. 111 Nonetheless, taking into account in particular the matters to which I have referred in para [108] above, I accept Mr Ginges' submission that this is a case where I should refer Mr Walker for assessment as to his suitability for home detention. I wish to make it perfectly clear that, but for the matters to which I have referred, I would not have entertained that submission. However, I think, the coincident community and personal interests in Mr Walker's wellbeing, to which I have referred in para [92] above, justify consideration of what might otherwise be an inappropriate course. Other matters 112 The Commissioner's summons sought a declaration that Mr Walker was guilty of contempt; an order that he be committed to prison for that contempt; an order that he pay the Commission's costs; and further or other relief. 113 Mr McQuillen (who appeared for Mr Walker on earlier occasions) had submitted that it was inappropriate to make a declaration of criminal liability. However, the Court frequently declares that a person is or has acted in contempt of court. Studdert J did so in Jando. Gzell J did so in Ryan v Wright [No 2] [2004] NSWSC 1019. Nonetheless, I do not propose to do so in this case. I have found that Mr Walker was guilty of contempt of the Commission (see para [231] of my previous reasons). I see no utility in making a declaration to the same effect as that finding. 114 The Commissioner did not press for an order for costs. I am accordingly relieved of the need to consider the possible impact, on any entitlement to costs, of the matters to which I referred in paras [45] to [100] of my previous reasons. Orders

115 (1) I sentence the defendant, Christopher John Walker, to imprisonment for six months for contempt of the Police Integrity Commission.

(2) I refer the defendant to the Probation and Parole Service for assessment as to his suitability for home detention.

(3) I stay the execution of the sentence of imprisonment imposed pursuant to order (1) until the further order of the Court.

(4) I stand the proceedings over to a date to be fixed by agreement with counsel.

(5) I grant the defendant bail up until and including the date so fixed upon the following conditions: (a) That the defendant by 12 noon on 26 September 2006 surrender to the Registrar of the Court any current passport now held by him.

(b) That the defendant whilst he is on bail not apply for or obtain any passport or further passport.

(d) That the defendant whilst he is on bail report to the officer in charge, North Sydney Police Station, every Monday, Wednesday and Friday between the hours of 4 pm and 6 pm. (6) I direct that these orders be entered forthwith.

(7) I direct that a copy of these orders when entered be forwarded to the officer in charge, North Sydney Police Station.

(8) I grant liberty to apply on 48 hours' notice concerning the implementation of orders (2), (3) and (5) or generally.

(9) I make no order as to the costs of these proceedings.

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