Jones v Australian Competition and Consumer Commission

Federal Court of Australia (Full Court)|2010-11-19|Before: Keane CJ, Reeves JJ

REASONS FOR JUDGMENT 1 On 5 March 2010, the learned primary judge made interlocutory orders which, among other things, restrained Mr Jones from promoting (save subject to stringent conditions) what are alleged by the Australian Competition and Consumer Commission to be quack treatments for cancer and other diseases. 2 On 17 August this year, the learned primary judge found that Mr Jones had breached these orders in several respects. In consequence, Mr Jones was declared to be guilty of a number of charges of contempt of court. For these contempts, the learned primary judge sentenced Mr Jones to custodial sentences. His Honour immediately stayed these orders pending the determination of Mr Jones' appeal to this Court against the convictions for contempt of court. 3 On Mr Jones' appeal, he argues that the learned primary judge erred in: (a) applying the process of reasoning approved in Jones v Dunkel (1959) 101 CLR 298 in reaching his conclusion that the charges of contempt were established ("the Jones v Dunkel point"); and (b) in concluding that Mr Jones was guilty of contempt by reason of a failure on his part to provide information as ordered, when the failure in question had not been the subject of a charge against him ("the uncharged conduct point"). 4 We propose to set out in detail the circumstances which led to the convictions for contempt and his Honour's reasons in that regard. We will then address the arguments which were agitated in relation to Mr Jones' grounds of appeal.

THE DECISION OF THE PRIMARY JUDGE 11 The declarations made by the primary judge were in the following terms: The Respondent is guilty of contempt of this Court in that in breach of the orders made on 5 March 2010 (as modified on 14 April 2010) by Justice Logan (Interlocutory Orders), the Respondent engaged in the conduct set out below: 1 In respect of Darryl Jones Health Resolution Centre website: 1.1 The Respondent did not, before making the representations referred to in paragraph 9 of the Statement of Charge filed on 28 May 2010 (Statement of Charge), obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 1.2 The Respondent did not, at the time of making the representations referred to in paragraph 9 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders. 1.3 The Respondent did not, within 7 days of making the representations referred to in paragraph 9 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 1.4 The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof. 1.5 From at least 12 May 2010 and until 14 May 2010, the Respondent did not take all reasonable steps to ensure that a notice as required by paragraph 2 of the Interlocutory Orders: 1.5.1 was clearly viewable immediately on screen after the home page was accessed; and 1.5.2 did not require a further selection of hyperlinks or scrolling on the screen to be seen; on the website at http://www.darryljoneshealth.com.au. 2 In respect of the electronic book entitled "The Truth About Overcoming Cancer" (the e‑book): 2.1 The Respondent did not, before making the representations in the e-book, referred to in paragraph 16 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 2.2 The Respondent did not, at the time of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders. 2.3 The Respondent did not, within 7 days of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 2.4 The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof. 3 In respect of the Fellowship of Faith, Hope and Healing Website: 3.1 The Respondent did not, before making the representations referred to in paragraph 21 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 3.2 The Respondent did not, at the time of making the representations referred to in paragraph 21 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders. 3.3 The Respondent did not, within 7 days of making the representations referred to in paragraph 21 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders. 3.4 The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof. 4 In respect of the list of clients: 4.1 The Respondent did not provide the applicant with the list as required by paragraph 3 of the Interlocutory Orders and by the time extended by paragraph 1 of the 14 April 2010 orders. 4.2 The Respondent has not provided the applicant with the list required by paragraph 3 of the orders as at the date hereof. 12 In relation to the charges concerned with the Darryl Jones Health Resolution Centre Website and the e-book, Mr Jones' contention was that the absence of Schedule A from the DJHRC Website was the result of action by a Mr Hunnam unbidden by Mr Jones. The primary judge summarised the evidence relevant to this contention, and that Mr Hunnam was not called to give evidence. His Honour said at [37]-[42]: In respect of the Darryl Jones Health Resolution Centre website, the evidence persuades me beyond reasonable doubt of the following. Mr Jones, after the making of the orders of 5 March, suffered a decline in income derived either directly from counselling or exercise-related work, or from sales of books authored by him and promoted by him. In May this year, at some time after the orders of 5 March 2010 were extended, insofar as the same was necessary on 14 April 2010 and prior to 12 May 2010, Mr Jones spoke with a Mr Hunnam. Mr Hunnam had been responsible for the provision of services to Mr Jones in relation to the Darryl Jones Health Resolution Centre website. Mr Jones, in his statement, which he adopted in evidence, says that the exchange which he had with Mr Hunnam was in the following terms. Mr Jones says that he informed Mr Hunnam of the orders and then said words to this effect: MR JONES: You need to place the schedule A on the website. Mr Jones then says that he believes that Schedule A was placed on that website immediately thereafter. He admits, and I infer from this that it is based on his personal observation of the website, that the effect of placing Schedule A to the orders on the website was that the public was essentially blocked from the website, because Schedule A was the only content of the website. What he then says is that in early May of this year (and he can't recall the exact date) he spoke to Mr Hunnam and said this, or at least words to this effect, "Schedule A is blocking the whole site, and the public can not access it. Therefore, I'm not getting any referrals from the site and I'm also not earning money from it from book sales. Is there any way I can comply with the orders as set out in para 2, subparas 2.3 to 2.7 of the orders, but still allow access to the public?" To this, Mr Jones says Mr Hunnam said, "I'll see what I can do." That particular conversation is given only in effect. I am satisfied that there was a conversation, and that Mr Jones did indeed seek to bring the website back on air. What I am not satisfied about is that the conversation was quite as benign as that alleged by Mr Jones. In other words, it was a conversation which was, I have no doubt, one which highlighted an endeavour to have the website back on air, but I am not satisfied that Mr Jones left matters entirely to Mr Hunnam, or that thereafter, Mr Hunnam was left to his own devices. Mr Hunnam did not give evidence in the proceedings. 13 His Honour then adverted to the question which gives rise to the first ground of appeal. His Honour said at [43]: There was, as will be apparent later, at least one other notable absentee from the witness box, Mr Kendall, in relation to the Fellowship of Faith, Hope and Healing allegations. The question which necessarily arises in terms of these absences is: what, if any, use I may make of the absence of Mr Hunnam, and for that matter, Mr Kendall, from the witness box? 14 The primary judge then considered some of the authorities which bear upon this question. He then went on to say at [48]-[56]: There is evidence before me that Mr Hunnam is (apparently, at least) someone who lives in Australia, albeit not in this State. The ACCC made a number of attempts to contact Mr Hunnam, with a view to calling the gentleman in its own case. That was a commendable, perhaps even overly rigorous, approach to the duties that fall on a person bringing a charge of contempt, to seek to call Mr Hunnam in its own case. The ACCC did not have a statement from Mr Hunnam which suggested that he could give evidence that was relevant, but nonetheless made endeavours to contact him. Mr Jones, though, was someone who, on the evidence, was able readily to contact Mr Hunnam, more readily in terms of informative contact, it seems, than the ACCC. I infer from the absence of Mr Hunnam being called on behalf of Mr Jones that his evidence would not have assisted; more than that I do not infer in terms of that absence. It seems to me that the desire on Mr Jones' part to have the Darryl Jones Health Resolution Centre website displayed again other than in a way which made Schedule A prominent was a very singular motivation, hence my cynicism about whether the effect of the conversation was quite as benign, or whether Mr Hunnam was left quite as much to his own devices as Mr Jones has stated. What is apparent is that the site was operated between 12 and 14 May. In between those two dates, as a result it seems of what one might term a "surveillance" of the internet site conducted by the ACCC, the AGS came to write on 13 May 2010 to Mr Jones' solicitors. That letter was not just consigned to the post, but seems to have been sent both by facsimile and by email. It also seems to have come to the attention of Mr Jones no later than 14 May 2010, and it is as a result of that particular attention, rather than anything else, I find beyond reasonable doubt, that the site came to be modified in a way which again made Schedule A prominent. What I take from this is that the display that occurred between 12 and 14 May 2010, where Schedule A was consigned to a hyperlink, was not inadvertent. There was, I am quite satisfied, a deliberate endeavour, for purposes of financial reward, to bring that site back in a way that would give referrals and book sales. Thus, while I accept the admission that the order was breached, I am satisfied beyond reasonable doubt that the breach was not inadvertent. The charge of contempt made by the ACCC, insofar as it relates to the Darryl Jones Health Resolution Centre website, is proved. It is a necessary corollary of that that the charge made in respect of the electronic book, a copy of which I am satisfied was purchased by an officer of the ACCC, is also proved. It is admitted, and in any event I would find, that both the website and the book contain representations which are representations unsupported by medical or academic opinion, and representations of a kind that Mr Jones was enjoined from making by virtue of the orders which I made on 5 March 2010. 15 In respect of the charge relating to the Fellowship of Faith Hope and Healing Website, Mr Jones' case was that he had not given instructions for the creation of this website. There was evidence from Mr Bodhi Greenwood that the website was created on the instructions of Mr Steve Kendall. The primary judge summarised that evidence at [62]-[70]: The ACCC called Mr Bodhi Greenwood to give evidence. It transpired from his evidence that Mr Greenwood is a web designer. He is also a friend of the Jones family and has been so for some 10 years. He knows both Mr Jones and as well his daughter, Naomi. He is a particular friend of Naomi. That friendship has extended to a relationship of some one and a half to two years. As a result, Mr Greenwood has fairly frequent contact with Mr Jones. Earlier this year, Mr Greenwood came to design the Fellowship website from which I have quoted. He is a member of that particular church. His recollection is that church was established earlier this year, about three or four months ago. I am satisfied that the establishment of the church occurred after I had made the orders on 5 March 2010. I am satisfied also to the standard of beyond reasonable doubt that the church or fellowship was established on the initiative of Mr Jones. I am further satisfied beyond reasonable doubt that it was established by late March of this year. Mr Greenwood's evidence is that he came to design the website on instructions from a Mr Steve Kendall. In transpired in the course of proceedings before me that Mr Kendall was present in court, although as I have noted, he did not give evidence. Mr Greenwood's recollection is that Mr Kendall sent him an email, on the strength of which he came to design the website. His evidence was that Mr Kendall held the position of treasurer in the Fellowship. I accept that evidence. Mr Greenwood's evidence was further that the detailed content of the website came either from a CD with some "Word" documents, or from email. He was not able to be more precise about that, nor would I expect him to be more precise about that. It doubtless was not particularly material at the time for him to have to recall, some months later, the precise provenance of the text which he put onto the website. Mr Greenwood's evidence was also that Mr Jones did not instruct him directly to put the website up or, for that matter, to continue it. He did say, and I accept this, that had anyone in the church (ie the Fellowship), including Mr Jones, asked him to take it down, that he would have done so. The website concerned operates from a server which is located in Texas in the United States. Mr Greenwood's evidence was that he has exclusive password access to the server, and is able to access it from his business, which operates in the Sunshine Coast, north of Brisbane. It is patent on the evidence that the website is able to be accessed from Australia. There was no submission made to me, by or on behalf of Mr Jones, that the contempt alleged must fail, because the server concerned was located in the United States. I should make it clear though that I have nonetheless considered that issue, and regard the Australian connection to which I have referred (ie its ability to be created or modified from Australia and further, its ability to be accessed from Australia) as sufficient foundation for jurisdiction, quite apart from conduct, to which I now turn. Mr Greenwood then did not place Mr Jones as the direct source of instructions in respect of the website. Indeed, he went so far as to say that he had never spoken to Mr Jones about the website. Whilst I do find, with all respect to Mr Greenwood, that to be a subject about which an interrogative note was sounded in my mind about his evidence, it is not necessary to reach any concluded view. Mr Jones, in his evidence, also said that he had not given instructions about the creation of the website, but rather, in effect, that those who were his adherents had so done. He acknowledged founding the Fellowship, and further to having some sort of managerial role in relation to the Fellowship. I did not take from this that it was an exclusive managerial role, (ie that he was the sole person with management authority). He also, as I have said, acknowledged authorship of the material on the website. 16 The primary judge does seem to have regarded the absence of Mr Kendall from the witness box as significant to his rejection of Mr Jones' case that this website was not created on his instructions. His Honour said at [71]-[78]: Having regard to the passage which I have quoted from CEPU v ACCC, I believe that I can, and I do, infer that Mr Kendall's evidence would not have been helpful had he been called. He was patently someone available to be called. It was further, in my opinion, within the power of Mr Jones to call him and, indeed, not the ACCC. The ACCC had no proof of evidence so far as I am aware from Mr Kendall. Had it had such a proof of evidence then I might have expected him to be called in the ACCC's case. He was, in my opinion, having regard to Mr Jones' evidence and Mr Greenwood's evidence, an obvious witness one might expect to have seen called in Mr Jones' case. Having regard to the contents of the Fellowship website, I am satisfied that the contents of that website are replete with representations of the kind enjoined by the orders that I made on 5 March 2010. I have reflected long and hard about whether I should regard, as proved beyond reasonable doubt, Mr Jones' involvement in the website's initiation and maintenance. In that regard the ACCC points to a number of factors. Firstly, they point to the way in which the website content is cast and its authorship. Secondly, there is no good reason for why Mr Greenwood would set up a website to benefit Mr Jones, regardless of Mr Jones' wishes as to content. They point to the photograph, together with Mr Jones' name and his description as founder of the Fellowship. In addition, they point to the advertisement of a meeting at 251 Yandina Bli Bli Road. They also point to evidence that this particular address is one that was used by Mr Jones. I am satisfied, having regard to Mr Jones' affidavit, filed on 13 April 2010, that this is an address that was used by him. The coincidence of that April address and the April date of the meeting is also significant to me. The content of the website, the ACCC submits, is consistent with other websites owned or controlled by Mr Jones. When I look to the Darryl Jones Health Resolution Centre website, and to the Fellowship website, there are particular similarities in terms of language, and particularly in terms of representations about what one might term, faith healing and diet. The ACCC further points to the website stating that it is designed by Webpress Express. I interpolate that Webpress Express is Mr Greenwood's business entity. The ACCC further points to Mr Jones' alleged Facebook site which contains a photograph of him recording that, "he 'likes' Webpress Express." I do not make anything in particular of the latter, but the other considerations which I have mentioned are persuasive. It seems to me that there is a necessary inference, and one which I do draw and regard as proving beyond reasonable doubt, that the coincidence of the establishment of the Fellowship, and the authorship of the material, and the appearance on the Fellowship website, are not just mere coincidences. The injunctive order that I made on 5 March 2010 in para 1, used deliberately the words, "or otherwise howsoever." That is a common term used in injunctive orders and is meant to catch conduct which may not amount to strictly servant or agent conduct, or personal conduct, but is nonetheless a means by which a particular person, the subject of an injunctive order, may come to transgress it by the conduct of others. In this particular case, whilst I accept that the direct instructions came as Mr Greenwood related from Mr Kendall, I do not regard Mr Kendall as the ultimate author of those instructions. Rather, having regard to what I have described as not mere coincidence, and the association noted between the address promoted and Mr Jones, I am satisfied that Mr Jones set out to create the Fellowship and its associated website for the particular purpose of making further representations of exactly the kind, the subject of injunctive order. I am, therefore, satisfied that the charge which relates to the Fellowship website, is proved. 17 In respect of the charge relating to the Facebook Website, the primary judge held that this charge was not proved. 18 In respect of the charge relating to the non-provison of the list, by reason of Mr Jones' failure to provide details of amounts paid by his clients, the primary judge said at [91]-[94]: Finally, it is necessary to turn to the list. In this regard there is an admission of non-compliance with some particular aspects of the requirements specified in para 3 of the orders of 5 March 2010. These are but passing omissions in terms of a particular address for a particular person and the like. The real controversy is about whether the breach extends to that required in para 4, which materially extended to payment details. The point made in submissions on behalf of Mr Jones was that, as I have mentioned, the charge does not mention para 4. I was initially attracted to this particular submission, for it is the case that a contempt must be particularly charged and strictly proved. Reflecting though on the terms of the order of 5 March 2010, and the undertakings given on 14 April 2010 and the order of extension, as they are viewed collectively, in my opinion, is consistent only with regarding para 4 as subordinate to, and an extension of the obligation which is created by para 3. Mr Jones has, in effect, provided such information as he is easily able to give. What he has not done, and meets with the statement in evidence that, "well, my records are in storage," in effect, is to do further than just the easy, in relation to an order of the court. What he has not provided in evidence is any detail as to some overwhelming burden that might be associated with either going to storage and bringing his mind to the task of providing the payment information in particular, or for that matter, going to his banker and asking for statements. These seem to me to be not overly burdensome tasks, at least to attempt. If I had evidence, and I do not, that Mr Jones had made these attempts, then I would not regard the conduct as has occurred as in breach of para 3 of the orders made. I was left with the distinct impression that Mr Jones did as much as he thought he had to, but no more, and was of the view that that should be sufficient. As I have said, it would have been sufficient had I had an explanation from him as to why particular, obvious steps from him to provide the payment details, were not taken, or if taken, had proved not reasonably possible to yield information, payment information, of the kind required by order. Save for that, the conduct alleged is proved. In other words, it is alleged that particular information was not provided; it is accepted that information was not provided. I regard the charge as proved beyond reasonable doubt. (Emphasis in original.) 19 We turn now to discuss the grounds of appeal raised on Mr Jones' behalf.

THE JONES V DUNKEL POINT 20 The decision of the High Court in Jones v Dunkel is authority for the proposition that an unexplained refusal by a party to give evidence or to call witnesses or to lead other evidence may, in appropriate circumstances, entitle the tribunal of fact to draw an inference that the uncalled evidence would not have assisted that party's case. 21 It is apparent that the trial judge proceeded to his conclusion adverse to Mr Jones on the basis that witnesses who might have given evidence would not have given evidence which assisted Mr Jones. It can be argued on Mr Jones' behalf that this approach disadvantaged Mr Jones in that, absent the disputed step in his Honour's reasoning, Mr Jones' evidence would have been evaluated on the basis that it was uncontradicted and not inherently improbable. 22 It is common ground between the parties that in proceedings for contempt of court, the criminal standard of proof applies. On Mr Jones' behalf, it is urged that, in such proceedings, there is no scope for the application of Jones v Dunkel. 23 The primary judge regarded the question as to the application of Jones v Dunkel as determined for him by observations of the Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 ("CEPU v ACCC"). In that case at [29]-[38], the Court, constituted by Weinberg, Bennett and Rares JJ, held that in the proceedings for civil penalties under the Trade Practices Act 1974 (Cth), the civil standard of proof applied. Their Honours went on to say at [70]-[73]: It is not an error, even in proceedings in which the criminal standard of proof applies, for a judge to draw inferences from events and circumstances of the case in the absence of any countervailing evidence that might have been given by the respondent. Thus, if a respondent to a charge of contempt of a court order fails to give evidence that he or she did not know of orders made on his or her own application, the absence of that evidence is a fact that a judge could hardly ignore. A judge is entitled to point to the fact that the evidence upon which he or she has to decide the case was adduced by the applicant and then ask what the inference to be drawn was in that state of affairs (Mead v Mead (2007) 81 ALJR 1185 at [13] per Gleeson CJ, with whom Hayne, Callinan, Heydon and Crennan JJ agreed). As Windeyer J observed in Jones v Dunkel 101 CLR at 319, it is important not to confuse mere conjecture by a tribunal of fact with reasoned conclusion. In that case, after two trucks collided, one driver died and the other, the defendant's employee, did not give evidence. The majority (Kitto, Menzies and Windeyer JJ) held that there were sufficient primary facts on which the jury could have drawn the inference that the collision occurred on the defendant's truck's incorrect side of the road. Therefore, it was open to the jury to infer that the collision was a result of negligent driving by the defendant's employee (Jones v Dunkel 101 CLR at 306, 310, 320). In that state of affairs, the jury should have been instructed that any inference favourable to the plaintiff for which there was ground in the evidence might more confidently be drawn when a person, presumably able to put a true complexion on the facts relied on as the grounds for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of the witness' absence (Jones v Dunkel 101 CLR at 308 per Kitto J, 312 per Menzies J). Windeyer J relied on the well-known authority of R v Burdett (1820) 4 B & Ald 95 at 122, 161…to support the capacity of the jury to draw an inference that an unexplained failure of a party to call evidence may lead rationally to an inference that the evidence would not help the party's case (Jones v Dunkel 101 CLR at 321). Of course, it is seldom, if ever, reasonable to conclude that an accused in a criminal trial would be expected to give evidence (RPS v The Queen (2000) 199 CLR 620 at [26]-[28]; Dyers v The Queen (2002) 210 CLR 285 at [9]). This is because in an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at the trial. Those matters must be assessed by the jury against the requisite standard of proof without regard to the fact that the accused did not give evidence, as Gaudron, Gummow, Kirby and Hayne JJ explained in Azzopardi v The Queen (2001) 205 CLR 50 at [64]. But, as the learned author of Cross on Evidence (7th Aust ed, 2004) at 48 [1220], Heydon JD, observed, the modern High Court authorities regulate what the jury may be told but do not appear to regulate how a jury, trial judge or an appellate court may reason. The learned author said that therefore the following reasoning of the Privy Councilin R v Sharmpal Singh [1962] AC 188 at 198 (an appeal in a case involving a trial before a judge and three assessors), per Lord Devlin, appears open in appropriate cases: How did he come to squeeze his wife's throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not be deterred by incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculating upon what the accused might have said if he had testified. 24 There are several points to be made in relation to his honour's reliance on this passage from CEPU v ACCC as determinative of the issue. First, the observations made by their Honours are obiter dicta: they were not necessary for the decision of the case; and they were uttered in a case in which pecuniary penalties were sought rather than the imposition of a term of imprisonment. Accordingly, they are not binding in their authority upon the question resolved by his Honour. 25 Secondly, the passage cited from CEPU v ACCC is distinctly not concerned to fix the metes and bounds of the principle in Jones v Dunkel. The cited passage is concerned with the propriety of drawing inferences in the absence of countervailing evidence where the circumstances in question are peculiarly within the knowledge of the party who does not give evidence. The principle in Jones v Dunkel is specifically concerned with the drawing of an inference that the evidence which has not been adduced would not assist the party who might have been expected to adduce that evidence. It was this inference which the primary judge drew in this case. 26 Thirdly, the distinction drawn in the last paragraph of the passage cited from CEPU v ACCC between "what the jury may be told" and "how a jury, trial judge or appellate court may reason" is not compelling when the point is considered in the light of the reasons given by the High Court in RPS v The Queen (2000) 199 CLR 620 at [26]-[29] and Dyers v The Queen (2002) 210 CLR 285 as to why a Jones v Dunkel direction should not be given to a jury in a criminal trial. Reference to those reasons shows that they are concerned to prevent an impermissible process of reasoning by the tribunal of fact. It is difficult to see why that process of reasoning is not equally impermissible whether the tribunal of fact be a jury or a judge. In a case where a person is charged with a criminal offence, whether the tribunal of fact is a judge or a jury, there is no expectation, as there is of a party to civil litigation, that the person will call all relevant evidence which is available and not inherently or obviously credible. It is this expectation which is the foundation for the drawing of the Jones v Dunkel inference. 27 In RPS v The Queen, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said at [26]-[29]: In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case [Jones v Dunkel (1959) 101 CLR 298 at 321, per Windeyer J] and that [Jones v Dunkel (1959) 101 CLR 298 at 312, per Menzies J]: "where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference." By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen [(1993) 178 CLR 217 at 227-228, per Mason CJ, Deane and Dawson JJ]: "[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." (Emphasis added.) In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor "has the responsibility of ensuring that the Crown case is presented with fairness to the accused" [Richardson v The Queen (1974) 131 CLR 116 at 119, per Barwick CJ, McTiernan and Mason JJ. See also R v Apostilides (1984) 154 CLR 563] and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused. 28 It may be noted from the last paragraph of this citation from RPS v The Queen that the obligation of the Crown prosecutor to present the case against the accused "fairly", ie, by calling all evidence which might assist to establish the truth, was identified as a reason for the non-application of Jones v Dunkel. This consideration was referred to again in Dyers v The Queen. 29 In this regard, in Dyers v The Queen at [5]-[12], Gaudron and Hayne JJ said: As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi [(2001) 205 CLR 50 at 74 [64]]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence. Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses. There are three principal reasons for concluding that a Jones v Dunkel direction should not have been given against the appellant in this matter. First, the trial judge's direction invited the jury to consider two questions: would one party be expected to have called a witness to support that party's assertions, and was there a satisfactory explanation for the party's failing to call the evidence? ... As was pointed out in RPS [(2000) 199 CLR 620 at 632-633 [26]-[28], per Gaudron A-CJ, Gummow, Kirby and Hayne JJ], it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett [(1820) 4 B & Ald 95 at 161-162 [106 ER 873 at 898], per Abbott CJ] and Jones v Dunkel [(1959) 101 CLR 298 at 321, per Windeyer J] ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary [R v OGD (1997) 45 NSWLR 744; R v Cengiz [1998] 3 VR 720] they were overruled [RPS v The Queen (2000) 199 CLR 620 at 633 [30]]. The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt. The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them [Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 294, per Fullagar J; Richardson v The Queen (1974) 131 CLR 116 at 119, per Barwick CJ, McTiernan and Mason JJ; Whitehorn v The Queen (1983) 152 CLR 657 at 663-664, per Deane J; at 674-675; per Dawson J; R v Apostilides (1984) 154 CLR 563]. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" [Whitehorn (1983) 152 CLR 657 at 663-664, per Deane J] (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person [Whitehorn (1983) 152 CLR 657 at 674, per Dawson J. See also R v Kneebone (1999) 47 NSWLR 450 at 462 [57], per Greg James J; at 470-471 [102], per Smart A-J; R v Lucas [1973] VR 693 at 705-708, per Newton J and Norris A-J]. If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, for example, on the basis that the evidence which would be given by that witness would be "unreliable, untrustworthy or otherwise incapable of belief" [Whitehorn (1983) 152 CLR 657 at 674, per Dawson J] it would be quite wrong to invite the jury to conclude that the accused could be expected to have called that person. Yet if the jury are to be invited to draw some conclusion adverse to the accused from the fact that a witness has not been called, it can only be on the basis that it would be expected that the accused would call that person unless the evidence that would be given would not assist the accused. But if the evidence was important and credible, why was it not adduced by the prosecution? 30 It may be noted that it was only the third of the reasons why Gaudron and Hayne JJ considered that a Jones v Dunkel direction should not be given in a criminal trial which was concerned with the role of the jury as the trier of fact. As to this, their Honours said at [13]-[15]: The third of the principal reasons, for concluding that a Jones v Dunkel direction should not have been given, arises out of the direction that the jury should not speculate about the evidence that might have been given by those who were not called. The reasoning of which Windeyer J spoke in Jones v Dunkel [(1959) 101 CLR 298 at 321] was the drawing of inferences from proved facts and the confidence with which such inferences could be drawn. The central issue for the jury in the present matter was whether they were persuaded, to the requisite standard of satisfaction, that the events described by the complainant had happened. To those events there were said to be only two witnesses - the complainant and the accused. It may, therefore, be doubted that the drawing of inferences loomed large in the jury's deliberations in this case. At most, there might have been some questions of inference about peripheral issues. Be this as it may, to tell the jury that they should not speculate about what evidence might have been given, by those who were not called, is an instruction that directly contradicts the instruction that the jury may conclude that the evidence which those persons could have given would not assist the case of the party whom it was expected would call them. The contradiction should, of course, have been avoided but it was to be avoided only by giving one direction (the direction not to speculate). So much follows from the considerations dealt with earlier. But there is a further reason for that conclusion which is a reason founded in the distinction between the role of the judge and the jury in a criminal trial. As was pointed out in Azzopardi [(2001) 205 CLR 50 at 69-70 [50]], it is important to distinguish between a judge's comments about either the evidence or the facts the jury may find to be proved, and the directions a judge gives to the jury. As was said in the joint reasons [Azzopardi (2001) 205 CLR 50 at 69-70 [50]], "[i]t is ... not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt". Because there can be no expectation that an accused should or will go into evidence, the reasoning described in R v Burdett and Jones v Dunkel will not be available (at least in all but the most unusual circumstances). That being so, lest the jury engage in that form of reasoning, they should be told that they may not. That is why, as was pointed out in Azzopardi [[(2001) 205 CLR 50 at 70 [51]], if the accused does not give evidence it is almost always desirable to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. Likewise, where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide the case only on the evidence that has been led. A direction of that kind, about how the jury should not reason, is a proper form of judicial instruction to the jury. By contrast, if the judge tells the jury how to find the facts which will found a verdict of guilt, the judge comments on the facts of the case in a way that runs obvious risks of detracting from the jury's role as the tribunal of fact. 31 There are obvious reasons why Messrs Kendall and Hunnam may have been unwilling to give evidence for Mr Jones in this case, not the least of which is the risk of self-incrimination. But it is unnecessary to speculate upon those reasons, and it is just as inappropriate for a judge to speculate upon those reasons as it is for a jury to do so. 32 In Witham v Holloway (1995) 183 CLR 525 esp at 534, the High Court held that a proceeding for contempt of court must be seen as criminal in nature so that charges of contempt must be proved beyond reasonable doubt. Having so concluded, Brennan, Deane, Toohey and Gaudron JJ went on to say at 534: However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing. 33 Apart from the obvious, but, as it seems to us, not presently relevant difference that the present case does not involve a trial by jury, the only arguable difference, for present purposes, between a trial of a charge of a criminal offence and a charge of contempt lies in the consideration that a party to civil proceedings does not ordinarily have the same obligations to the administration of justice as a prosecutor in a criminal case. 34 In this regard, we are unpersuaded that this difference is a sufficient basis for concluding that it was permissible for the primary judge to reason to the conclusion that Mr Jones was in contempt by reason of his breaches of the orders of 5 March 2010 by a process which included the consideration that the evidence of witnesses not called by Mr Jones would not have helped him. We take that view because once the ACCC applied to have Mr Jones committed to prison, it embarked upon a procedure of an accusatorial character. Even if the accusatorial character of the proceedings does not generate an expectation that the prosecutor will call all the credible evidence relevant to the charge, it must put paid to any expectation of the kind which is the basis for the Jones v Dunkel inference. That expectation is inconsistent with the general proposition that a person confronted with a criminal charge is not obliged, or expected, to make any proof of his or her innocence. 35 The ACCC argued that a private party who brings a charge of contempt should not be regarded as discharging the same functions as a Crown Prosecutor. The fact is, however, that in this case, the prosecutor is a public agency necessarily proceeding in the public interest. If there is any substance in the distinction which the ACCC seeks to draw, it has little significance in this case. 36 Another of the points made by the ACCC is that the contempts with which it charged Mr Jones were civil contempts rather than criminal contempts, in that, while the ACCC contends that Mr Jones breached the orders of 5 March 2010 by conduct which was not "casual, accidental or unintentional" (see Fairclough & Sons v The Manchester Ship Canal Co (1897) 41 SJ 225), it does not contend, and did not contend below, that Mr Jones' conduct was contumacious, in the sense that it involved a deliberate and intentional defiance of the orders of the Court. It was, however, the deliberate nature of Mr Jones' involvement in the breaches which was the principal issue litigated below. And, in any event, this point raises more problems than it solves for the ACCC in its attempt to maintain the decision under appeal. To the extent that the sentence of imprisonment imposed on Mr Jones reflects the seriousness of a deliberate, intentional defiance of the Court's authority, there would be a serious question as to the propriety of the sentence if it were correct to regard the charges made by the ACCC as raising only a case of civil contempt. 37 The ACCC also sought to maintain the judgment below on the footing that the Jones v Dunkel inferences played no part in the primary judge's conclusions. That is a remarkable argument, given that, in drawing the Jones v Dunkel inferences, the primary judge was acting in conformity with the ACCC's urgings. Having regard to the reasons given by his Honour, we are respectfully unable to accept that the Jones v Dunkel inferences did not affect his Honour's conclusions. It must be borne in mind here that his Honour's decision turned upon the drawing of inference of guilt from a circumstantial case contrary to the sworn evidence of Mr Jones. We are unable to accept that the Jones v Dunkel inferences did not influence his Honour's decision to reject Mr Jones' sworn denials as unworthy of belief. 38 Once it is accepted that the primary judge's process of reasoning was flawed, the ACCC conceded that the orders, other than that relating to the provision of the list, cannot stand.

THE UNCHARGED CONDUCT POINT 39 As to the orders relating to the provision of the list, that order is irregular, to say no more, in that it was not the subject of a distinct charge, and no attempt was made by the ACCC to amend the charge. There is no good reason for this Court to exercise a discretion to cure that irregularity, given the fate of the orders in respect of more serious conduct and the need for those charges to be dealt with again. 40 On behalf of the ACCC, it is said that paragraph 3 of the orders of 5 March 2010 required the provision of a list of relevant persons, and that paragraph 4 was concerned only with the content of the list. Moreover, the ACCC points out that Mr Jones was cross-examined, without objection, on the point that the list of persons which he provided did not comply with paragraph 3 of the orders of 5 March 2010 because it did not set out the amounts paid by the people included in it. These arguments do not answer Mr Jones' point that he was simply not in jeopardy of a conviction of contempt based on Mr Jones' failure to provide payment information. As stated above, the ACCC did not seek to amend its charge in this regard. 41 The accusatorial nature of the charge of contempt requires that there be strict compliance with rules of procedure. As stated by the High Court in Doyle v The Commonwealth (1985) 156 CLR 510 at 516 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ: Although disobedience of an injunction is not a criminal offence…and a proceeding for the committal of a person who has wilfully disobeyed an order of the court is not a criminal proceeding…except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the court…a proceeding for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally, the notice of motion for committal must be served personally on the person sought to be committed, the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge. (Emphasis added, footnotes omitted.) 42 In our respectful opinion, this ground of appeal must be upheld.

CONCLUSION AND ORDERS 43 A question arose as to whether, in the event that Mr Jones' appeal were to be successful, the matter should be returned specifically to the primary judge for determination. The major consideration in favour of this course was said to be the efficient use of the time of the Court and the resources of the parties. A countervailing consideration was said to be a possible apprehension of pre-judgment. 44 We consider that there is little force in this countervailing consideration, but we are also not convinced that there is no prospect that one or other party will seek to rely on further evidence so as to necessitate a further hearing. In the upshot, we consider that there is no compelling reason to make any order for the further hearing of the ACCC's application other than that it should be remitted for further consideration at first instance. It will be for the parties to decide whether they wish to ask Logan J to disqualify himself. Should his Honour do so then, subject to any agreement between the parties, the matter will have to be re-heard ab initio. 45 We would allow the appeal and set aside the judgment below. The ACCC's application of 28 May 2010 should be remitted for further consideration at first instance. 46 The ACCC must pay Mr Jones' costs of the appeal to this Court.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Keane CJ, Dowsett and Reeves JJ.

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