Fehon v Domican

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12925/01 PAUL JOSEPH FEHON v THOMAS CHRISTOPHER DOMICAN

JUDGMENT 1 HIS HONOUR: This is an appeal under s 104 of the Justices Act following a hearing in the Local Court, at the conclusion of which the learned magistrate dismissed an information charging the defendant, Thomas Christopher Domican, with an offence under s 30 of the National Crime Authority Act, 1984. The appeal raises a nice point as to what is required to constitute a contravention of s 30(2)(a) of that Act. 2 At the outset it is necessary to consider s 28 and s 30 of the National Crime Authority Act in the form in which those provisions stood at the time of the alleged offences, namely as at 6 December 1999. Significant amendments were made to s 28 and tos 30 by the National Crime Authority Legislation Amendment Act No. 135 of 2001. However, prior to that Act coming into force, the relevant provisions were as I record them in the following paragraphs. 3 Section 28 empowered a member of the National Crime Authority to summon witnesses to give evidence at a hearing before the Authority and to produce documents: "(1) A member may summon a person to appear before the Authority at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons." 4 A witness summonsed could be required to give evidence on oath or on affirmation: " (5) The Authority may, at a hearing, take evidence on oath or affirmation and for that purpose: (a) a member may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member presiding at the hearing; and (b) a member or a person who is an authorized person in relation to the Authority, may administer an oath or affirmation to a person so appearing at the hearing." 5 It was an offence for a person summonsed as a witness before the Authority to "refuse" or "fail" to comply with a requirement arising under s 28(5). Section 30(2) made it so: "(2) A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse: (a) when required pursuant to section 28 either to take an oath or make an affirmation---refuse or fail to comply with the requirement… 6 Prior to Act No. 135 of 2001, s 30(11) provided for the following punishment for a refusal or failure: "(11) A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months." 7 It was the informant's contention in the Local Court, and it is the plaintiff's contention in this Court, that the defendant committed an offence by refusing to take an oath or to make an affirmation when called upon to do so in proceedings before the Authority. The defendant's submission before the magistrate and on the hearing of this appeal was that there was no such refusal. 8 The background to the issue that arose in this Court was conveniently summarised in the written submissions of Ms Cinque, counsel for the plaintiff, and Mr Goold, who has appeared for the defendant, has accepted the accuracy of what Ms Cinque has written in this regard. I draw on these submissions to express the setting against which the issue of law that arises is to be considered. 9 On 3 August 1999 the defendant was summonsed to appear before the NCA sitting in Perth on 16 September 1999. The summons was issued by Mr Melick, the member of the NCA presiding on 16 September 1999. The defendant's response to the summons was to appear before the Authority and to present a solicitor's letter. The letter was from a firm purporting to act for him and addressed "To Whom it May Concern". It is unnecessary to dwell upon the content of the letter because Mr Melick took the view that the matters raised in the letter did not provide "good reason" for failing to be sworn or affirmed. No reliance is placed upon the content of that letter by the defendant for the purposes of this appeal. 10 I do, however, record in part the transcript of proceedings in Perth on 16 September 1999 (being part of the material annexed to the affidavit of Gina O'Rourke sworn on 23 January 2002 and filed in support of the summons). The defendant identified himself and informed Mr Melick: "So I'm here and I have nothing to say other than hand this letter up from my legal representatives. …………. MR MELICK: …Well, Mr Domican, the Act provides that you must attend and be sworn or affirmed in proceedings unless you have good reason in refusing to do so. I don't consider the matters set out in that letter constitute such good reasons…"

And later: "MR MELICK: …what you're doing by the course of action you are taking today is rendering yourself liable to prosecution for failing to be sworn or to give evidence. Now, there are other options available to you and that includes being sworn and refuse to answer various questions on the grounds that an answer may tend to incriminate you, and if you disagree with - and I can rule upon that, whether I think you have good grounds or not and if you disagree you can take the matter off to the court to be adjudicated. That then does not place you at risk of being prosecuted for refusing to be sworn or refusing to answer questions. By adopting the process you're doing at the moment I would recommend that you be - to the Director of Public Prosecutions you be prosecuted. So do you want to reconsider your position and take another option. MR T. DOMICAN: No. I refuse to be sworn on the grounds it may incriminate me, even being sworn. MR MELICK: No. It doesn't, Mr Domican, I'm sorry but you can't take a general objection to refusing to answer a question, you must consider each individual question that's put to you--- MR T. DOMICAN: I refuse to be sworn." 11 The proceedings were shortly thereafter adjourned sine die. 12 Then, on 29 November 1999, Mr Melick issued a summons pursuant to which the defendant was required to attend and give evidence and produce documents at a hearing of the NCA in Sydney on 6 December 1999. Unlike on the earlier occasion in Perth, this time the defendant was represented by counsel, Mr Tees. Having announced his appearance, Mr Tees informed the Authority of his client's instructions: "…my instructions are to inform the Authority, the hearing, that he does not wish to take an oath or an affirmation and he does not wish to answer any questions." 13 Thereafter there was an exchange between Mr Melick and Mr Domican which it is unnecessary to record in detail, Mr Domican complaining about investigation procedures and Mr Melick indicating he was not going to enter into a debate about such matters. However, Mr Melick then proceeded: "But I require you to be sworn pursuant to section 28 of the Act and I ask Mr Flynn to swear you or affirm you as a witness. MR DOMICAN: I take the same position as I did in Perth and nothing has changed. MR BONNICI [Solicitor employed by the NCA]: May I inquire, sir, as to whether a reasonable excuse for failing to be advanced? [Presumably Mr Bonnici was here raising the question of reasonable excuse. Prior to the 2001 amendments a person could advance a reasonable excuse for declining to take an oath or make an affirmation (s 30(2) above).] MR MELICK: Mr Tees? MR DOMICAN: Reasonable excuse? My excuse is that you brought an innocent woman and children into this matter that you shouldn't have done. Had you wanted to ask any questions I may well have answered them for you but you took the step of bringing innocent people and upsetting innocent people. I take the step of saying do your investigation. MR MELICK: Mr Domican, I don't consider that to be a reasonable excuse to be refused to be sworn. MR DOMICAN: I do. MR MELICK: I think it is only appropriate to warn you that if this is the second occasion it becomes a subsequent offence if you are convicted on both the first occasion and this occasion of refusing to be sworn and failing to have a reasonable excuse, then you are risking a term of imprisonment which I just think is futile when you can be sworn and take the option of refusing to answer a question if you consider you have a good grounds and then disputing the matter in court without risk of any form of criminal sanction. MR DOMICAN: Mr Melick, I have taken the stand I have on principle. MR MELICK: All right. I note that the witness refuses to be sworn." 14 Thereafter Mr Tees informed Mr Melick he would seek some further instructions and the transcript records as to this: "MR TEES: I will just briefly seek instructions. No, nothing different. The attitude hasn't changed, Commissioner." 15 The proceedings were then adjourned sine die. 16 The defendant was then summonsed to appear in the Local Court on information that on 6 December 1999 he "when required pursuant to section 28 of the National Crime Authority Act to take an oath or make an affirmation did without reasonable cause refuse to comply with that requirement." 17 The learned magistrate, before dismissing the information, stated reasons for so doing and it suffices that I refer to these reasons in part only since the extracts I will set out make it clear why the information was dismissed. Her Worship said: "Submissions have been made on behalf of the defendant on several grounds, the primary submission being that as there was no oath or affirmation administered to Mr Domican, in accordance with s28(5)(b) of the Act, the process of requiring Mr Domican to take an oath was not completed, and therefore the offence charged could not be, and was not, committed by the defendant." 18 Later the magistrate went on to record the Member's request to Mr Flynn to swear or affirm the defendant as a witness, and her Worship recorded that the evidence was that Mr Flynn was authorised to administer an oath or an affirmation. Plainly, the magistrate was not satisfied that Mr Flynn took any step in response to the Member's request. The magistrate said: "There is no record in the transcript of Mr Flynn administering or attempting to administer an oath or affirmation to Mr Domican… There is no statement from Mr Flynn or any other witness that he administered an oath or affirmation, or attempted to do so." 19 The magistrate went on to the expression of her fundamental reasons for dismissing the information: "I have not been able to find any authority on the point, but in my view the submission on behalf of the defendant is well made. Before a person can be charged with refusing to take an oath when required to do so the oath must be administered and the person must refuse to take the oath. It is not sufficient for a person to be told that he is required to take the oath and to indicate his intention to refuse; he must be required and he must refuse. This was not done in the hearing on 6 December 1999. If Mr Flynn had administered an oath or affirmation the situation would then have arisen where Mr Domican could take the oath or refuse to do so. Although he had consistently indicated his intention to refuse, he was not properly put in the position to take the oath or refuse - the essential element of him being required to take the oath did not occur." 20 In her submissions, Ms Cinque has argued that the learned magistrate misconstrued the requirements of the statute and that there was no need for the prosecution to prove that an oath or an affirmation was administered. There was a refusal established on the undisputed facts which I have set out above. 21 On the other hand, Mr Goold, in submitting that the magistrate was correct, argued that in the absence of an oath or affirmation being administered, there was no relevant refusal. He submitted that the relevant requirement under s 30(2)(a) only arises after an authorised officer recites the oath and invites the response or, alternatively, after the officer recites the form of affirmation and invites the response. In the absence of any such recital, there was no refusal or failure. 22 Ordinarily, the word "refusal" involves the notion of a conveyed unwillingness to do something, or a manifest decision not to do something. Hence the Macquarie Dictionary defines "refuse" to include "to decline to give; deny (a request, demand etc); to express a determination not (to do something);" and "refusal" is defined as "the act of refusing". To the like effect, the Oxford Dictionary defines "refusal" as "the act of refusing; a denial or rejection of something demanded or offered." 23 "Failure" is defined in the Macquarie Dictionary as meaning (inter alia) "the non performance of something due or required". To the like effect, the Oxford Dictionary defines "failure" as meaning (inter alia) "an omitting to perform something due or required; default." 24 Without reference to the requirements of s 28(5) of the National Crime Authority Act, I would have hesitated to conclude that a refusal to be sworn could only be established by conduct after an oath had been administered. Similarly, I would have hesitated to conclude that a refusal to make an affirmation could only be proved by conduct after administering the affirmation. If, for example, a person was asked to take a Bible in his hand as a preliminary to a form of oath being administered, and such person declined to accept the Bible, then s 28(5) apart, I would have been disposed to the view that the conduct of that person manifested a refusal to be sworn. 25 However, the offence with which the defendant was charged has to be considered in the context of the relevant statutory provisions. The defendant was not charged with a failure to take an oath or make an affirmation in the form provided for by s 21(4) of the Evidence Act, nor could he have been. Section 30(2)(a) is directed to a refusal or failure to comply with a requirement "pursuant to section 28" (of the National Crime Authority Act). Section 28(5) defines the requirement pursuant to that section as a requirement either to take an oath or to make an affirmation "in a form approved by the member presiding at the hearing". 26 What form of oath or affirmation, if any, had been approved by Mr Melick before the exchanges with the defendant earlier recorded? There was no evidence before the magistrate that the defendant had been alerted to the form of the oath or the affirmation he was to take or make, and, indeed, it is common ground that there was no evidence before the magistrate as to what, if any, form of oath or affirmation had been approved by Mr Melick, the Member presiding at the hearing. 27 Ms Cinque has drawn attention to the evidence before the magistrate that Mr Flynn was a person authorised to administer an oath. That evidence was in the form of an authority signed by Mr Crooke of Queen's Counsel, as Chairperson of the NCA, to which was attached a schedule naming persons, including Mr Flynn; the authority was expressed as being pursuant to s 28(6) "to authorise for the purposes of section 28…the persons set out in the schedule." The authority did not, of course, address the manner of expression of the oath or affirmation to be administered, as the statute contemplated that this was a matter for the Member who required an oath or affirmation to be taken. Ms Cinque submitted that no evidence that a form of oath or affirmation had been approved by Mr Melick was required, and neither was any evidence as to the form of such oath or affirmation. Ms Cinque submitted that it was implicit in the request made by Mr Melick to Mr Flynn to administer an oath or affirmation (see para 13 above) that the language Mr Flynn was going to employ had Mr Melick's approval and had been settled before the hearing. 28 Bearing in mind the burden of proof upon the informant and the standard of proof, I do not accept that it was implicit in the request conveyed by Mr Melick to Mr Flynn that Mr Flynn was necessarily going to administer an oath or affirmation in a form previously approved by Mr Melick, and, of course, the defendant was not informed of the form of any oath or affirmation he was going to be called upon to take or to make. 29 The defendant had made it clear that he was not going to cooperate with the Authority in this matter, and he gave reasons for his attitude which were in no way related to the issue upon which the information was dismissed or the issue presently being considered by this Court. Nevertheless, it remains the position that the prosecution had to prove its case. Section 30 required the defendant to take an oath or to make an affirmation in a particular form. It seems to me that there could be no relevant refusal or failure until the defendant was made aware of the form of the oath or affirmation required. Furthermore, it was fundamental to the prosecution case that it prove that the form of oath or affirmation which the defendant was required to take or make was approved by Mr Melick. Absent proof of these matters, it seems to me that the learned magistrate was correct to dismiss the information. 30 Accordingly, this summons is dismissed with costs. **********

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