Consideration
41 Given the appellant's reliance on the observations in both Wood v Galea No 1 and Wood v Galea No 2, it is appropriate at the outset to address those authorities.
42 Wood v Galea No 1 is one of a number of cases on contempt sentencing arising out of the refusal of Mr Bruce Galea, a witness called at the Wood Royal Commission to answer questions. Hunt CJ at CL at 571, in the course of addressing an argument that there was no power to impose an indeterminate sentence, said that three possible specific purposes of an action in contempt were retribution, coercion and deterrence. At 574, his Honour concluded that he did not believe that Mr Galea's "obduracy is of such a nature that it is unlikely he will change his mind … On the contrary, I am satisfied that it is likely that coercive action against [Mr Galea] will eventually produce the information sought by the [Royal] Commissioner". This conclusion was evidently based on the facts and circumstances leading to the charge of contempt being brought against him as detailed earlier in the reasons, including his refusal to answer questions, and his very poor health. His Honour was therefore referring to the overall circumstances proven to exist.
43 There is nothing in Wood v Galea No. 1 to suggest that there was any direct evidence that Mr Galea would purge his contempt; and as noted below, in Wood v Galea No. 2 reference was made to a letter from him in which he said he would not, with this being found not to be enough. Moreover, Hunt CJ at CL's prediction was proved wrong, because Mr Galea served several years in prison, to the end of the Royal Commission, and never succumbed.
44 Thus, it is clear that one of the tasks of a judge in sentencing for contempt of the kind in this case in the first place is making a prediction of the likelihood of the occurrence of a future event, namely, the purging of contempt by answering the questions. However, reaching that original conclusion does not require proof of that likelihood being realised as an ascertainable fact, let alone a circumstance of aggravation requiring that to be proved beyond reasonable doubt, such that Olbrich does not apply. If such an evidentiary requirement does not apply at the first stage of imposing a sentence for contempt, as a matter of logic it cannot apply at any later stage of deciding whether that conclusion remains sound.
45 In Wood v Galea No 2 at 283-284, Hunt CJ at CL, in considering whether or not to continue an indeterminate sentence of imprisonment his Honour had imposed over seven months earlier in Wood v Galea No. 1:
(a) referred to Mr Galea's age, the fact that this was the first time he had been in custody and the circumstances of his incarceration, but said that the contumacious nature of his offence was such as to deny him leniency on that basis;
(b) said he did not believe it was appropriate to indicate at that stage a particular sentence because, in the circumstances of that case, this would effectively destroy the coercive effect of an indeterminate punishment to force him to answer the questions;
(c) found that an appropriate term without regard to coercion would be considerably longer than seven and a half months (being the time already served, and almost the time already served by the appellant in this case), such that the time already spent in custody did not yet provide any reason for setting a fixed term;
(d) noted that coercive punishment was not appropriate where answers to the questions are no longer necessary or if for any other reason there is no good purpose to be served by detaining any further;
(e) posed the question of whether there was such a good purpose to be served by continuing to coerce Mr Galea to purge his contempt, noting that there was no suggestion that any means other than indeterminate punishment would achieve this;
(f) referred to the finding in his Honour's original sentence judgment, Wood v Galea No. 1, that the Royal Commission bore the onus of establishing that it was likely that coercive action would eventually produce the information sought;
(g) referred to a letter from Mr Galea in which he said that he has not changed his mind, asking his Honour to find that upon that basis there is no likelihood that he will eventually purge his contempt, his Honour noting that the mere say so does not automatically lead to a conclusion that no good purpose will be served by continuing to coerce him.
46 Hunt CJ at CL at 284 in Wood v Galea No 2 then considered that although the contemnor does not bear the onus of proof to establish whether there is any likelihood that he will purge his contempt, there is at least an evidentiary burden to provide evidence or to point to circumstances which may alter the conclusion which was formed at the time when the original sentence was imposed, in that case being an indeterminate sentence. The predictive finding that coercion is likely to produce the information required had already been made, and the issue is whether there is now a reason to depart from that finding.
47 Thereafter, if the sentence imposed is revisited, as occurred in Wood v Galea No 2, as occurred in this case, and as will likely occur whenever a contemnor has received an indeterminate sentence and asserts that he or she not only has not had a change of heart, but will not do so, the task of the sentencing judge as to the element of coercion is to ascertain whether the provision of the information, or other conduct sought, is still required and if so, whether the prediction previously made that a purging of contempt was likely still holds good. The question of whether that prediction remains sound is based on the facts established by the evidence, but it is not of itself a fact. The appellant contends that this is not a mere prediction, but a finding of fact as to whether an element of coercion is likely to bring about the result of the purging of contempt by answering the questions. That is just another way of describing the prediction required, which cannot be a fact in the sense of determining, at that time, whether purging will or will not take place.
48 Returning to this case, at the time the primary judge was first called upon to sentence the appellant, the facts and circumstances proven and relied upon by the Commission had to provide a reasonable foundation for a conclusion being reached that it was at least realistically possible that he could be coerced into purging his contempt and answering the questions for the advancement of that purpose to be taken into account, along with retribution and deterrence. His Honour was satisfied that was so. That original conclusion is not challenged.
49 When the question of the contempt sentence returned to the primary judge on the appellant's application, his Honour's task was to evaluate the evidence before him, and ascertain whether there was still a need for the questions to be answered, and whether the original prediction of a likelihood of the appellant purging his contempt was still open. That is the task that his Honour performed, finding the answers were still needed by the Commission, and concluding that the need for an indeterminate sentence no longer prevailed over a fixed sentence to provide the necessary coercive effect, but that coercion might still be effective. The substance of the appellant's complaint is not that any aspect of the evidence was overlooked, but rather, that too much weight (or as at times submitted orally, that any weight) was given to the conclusion that coercion still had a role to play; and that too little weight was given to the countervailing factors, including his stance as revealed in his evidence, and the conditions of his incarceration. The appellant's argument turns on the characterisation of the primary judge's finding that there was a continued prospect of him purging his contempt as being a fact that was capable of being conclusively and undisputedly disproved by the evidence that was before his Honour, rather than being the product of a judicial evaluation and assessment of the likelihood something occurring in the future that could not, at least ordinarily and in this case, be conclusively proved either way.
50 The reasoning of Hunt CJ at CL in Wood v Galea No. 1 and in Wood v Galea No. 2 has been followed in numerous decisions of this Court involving contempt prosecutions brought by the Commission, including in DTO21 No 1 where the primary judge referred to Wood v Galea No. 1 both directly at [37] and [85] and indirectly in quoting from a decision of this Court in which it had been referred to at [32]. The reasons given by Hunt CJ in both Wood v Galea decisions in predicting the likelihood that Mr Galea would purge his contempt were no more expansive than those of the primary judge, with both being more than adequate for the task at hand.
51 No error on the part of the primary judge has been established. The appellant's arguments do not rise higher than mere emphatic disagreement with the predictive conclusions his Honour reached. As the Commission points out, while historic facts are relevant to the evaluation and assessment, the question of the prospects of the appellant purging his contempt necessarily turns on impression and inference as to the future.
52 Nor did the primary judge make any error in considering the coercive effect of continued incarceration on a decision by the appellant as to whether or not to purge his contempt. It was plainly a relevant and indeed a weighty consideration. No error is suggested in the findings made by the primary judge that it was still necessary to get the answers sought, which justified continued application of any coercion found to have a prospect of being effective, and no direct evidence was given by the appellant that he would not purge his contempt or of any specific threats, or in relation to the unpleasant circumstances of incarceration.
53 In those circumstances, it was for the appellant to point to evidence and other material that might satisfy the primary judge that he would be immune to coercion to the point of not succumbing and purging his contempt during any further period of custody, as contemplated by the third submission he advanced below, which is summarised by the primary judge in the passage reproduced at [33] above. The appellant failed to do so. The matters relied on before the primary judge, and repeated in this Court, are not such as to require such a conclusion. Indeed, as apparent from the authorities, it is accepted that experience has shown that time can coerce a contemnor to purge his contempt.
54 This ground of appeal must fail.