Keeley v Brooking

Keeley v Brooking - [1979] HCA 28 - HCA 1979 case summary — Zoe

[21]

As was said during the argument, so long ago as 1892 Oswald in his treatise on Contempt (p. 18) called attention to the absence of any such right in England. I thought during the hearing of argument that the continuing absence of any right of appeal warranted legislative consideration. But, on consideration, I realize the question is complex. It must be borne in mind that the power to deal with a party or witness for contempt committed in the face of the court is given to a tribunal as part of its necessary equipment to ensure the adequate conduct of proceedings before it so that questions or disputes can be resolved, both in the public interest as well as in the interest of the parties. If there is contempt by obstruction, it calls for immediate action in order, if possible, to remove the obstruction and facilitate the progress of the proceedings. Thus a direct refusal to answer a lawful question, which the tribunal is satisfied the witness could answer, would warrant a committal of the witness till an answer was forthcoming. It may be difficult in such a situation to contemplate the suspension of the proceedings whilst appellate processes were pursued particularly if the party or witness as the result of the confinement answered the question. Further, if the course followed were not a committal until compliance with an order to answer, but a committal for a specific term, that term might be of relatively short duration. The grant of bail to convicted persons is rare so that, without some express legislative direction, bail may not be granted pending the resolution of an appeal which may not be determined before the expiry of the sentence. If bail were granted, and such an appeal were unsuccessful, perhaps after a lapse of many months, much of the deterrent effect of the imposed punishment may be lost and the public manifestation of the citizen's duty to assist a tribunal in the performance of its proceedings have much less emphasis. Also, demeanour, I should think, may in some cases play a great part in deciding whether or not contempt has been committed. An appellate court may be denied the benefit of this element.

[44]

It is only in a strictly limited class of cases that a witness can properly be convicted of refusing to answer a question which he has purported to answer. A disbelief on the part of the court in the truth of the purported answer is not, without more, a sufficient foundation for such a conviction. The words used, considered in their setting and in the light of the demeanour of the witness, must show that in fact the witness is declining to make any reply which can be properly called an answer to the question. There must be a manifestation in some form of an intention on the part of the witness not to give a real answer. It is essential not to lose sight of the sharp distinction that exists between a false answer and no answer at all. Of course a purported answer may be so palpably false as to indicate that the witness is merely fobbing off the question. His attitude in the box may show that he is simply trifling with the court and is making no serious attempt to give an answer that is worth calling an answer. In such cases it may well be right to say that the witness refuses to answer the question, but it cannot be too clearly recognized that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt. Such a committal can be justified only by a specific finding of an evinced intention to leave a question or questions unanswered, or by a finding of contempt in some other defined respect. In the event, the appeal was upheld upon the ground that the bankrupt had not been afforded a reasonable opportunity of being heard in his own defence. On this question of procedure, the Court observed [25] : While it is clear enough that a refusal to answer may be inferred from the giving of what purports to be an answer, the power to commit summarily for a refusal so inferred is a power attended by obvious dangers, and extreme caution is required in its exercise. the issue whether statements offered as answers not only are false but imply a refusal to answer may well depend upon considerations of degree, which may strike different minds in different ways. The court, especially when it has itself preferred the charge, must be alert to see that it withholds judgment on the issue until it has considered everything which the witness may fairly wish to urge in his defence. 1. (1953) 90 C.L.R., at pp. 578-579. 2. (1953) 90 C.L.R., at p. 580.

[45]

The judgment in Coward v. Stapleton [26] stipulates the circumstances in which a court will be justified in concluding that a witness has been guilty of refusing to answer questions and thus of contempt of court where the witness has, in form, given answers to the questions put to him. What is required is "an evinced intention to leave a question or questions unanswered". We do not read the judgment as saying that such an intention is established only when the purported answers can be described as "plainly absurd" or "palpably false". Indeed, it is clear that these expressions were merely employed by the Court to characterize the evidence of the appellant in that case. What does emerge as a general proposition from Coward v. Stapleton [27] is that "there must be a manifestation in some form of an intention on the part of the witness not to give a real answer". And as the Court observed, the manifestation of that intention may "depend upon considerations of degree, which may strike different minds in different ways". It is scarcely necessary to make the point that there is a difference between the case such as Coward v. Stapleton, in which the witness gives a false account in answer to questions, and the case here, where the witness persistently asserts in relation to a number of transactions and events that he cannot recollect them when there is every reason for thinking that he would recall them. In the first case a finding that the witness is not telling the truth does not of itself show that he is refusing to answer. In the second case there are stronger grounds for concluding that the witness is not only giving false answers but is refusing to answer the questions put to him. In such a case a finding that the witness is not telling the truth leads inevitably to the further conclusion that he is refusing to answer, a finding that takes the case across the borderline that separates mere perjury from contempt. Deliberate falsehoods do not obstruct the administration of justice to the same extent as refusals to answer questions: cf. In re Michael [28] which turned on the application of statutory provisions designed to limit the exercise of the contempt power. Refusals to answer questions deny to the court evidence which is required for the purposes of the judicial process.

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Judgment (96 paragraphs)

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