Markisic & Anor v Keelty

Australasian Meat Industries Employees Union v Mudginberri Station Pty Ltd [1986] 46; 161 CLR 98 Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Bernard Putnin as Liquidator of MAFF Investments Pty Ltd (in liquidation) v Fuller (1991) 3 WAR 546 CASES CITED : Ditfort v Katz [1991] NSWCA, unreported, 8 July 1991 Dyers v The Queen [2002] HCA 45; 210 CLR 285 Hayden v Ditfort (1988) 93 FLR 131 Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] 35; 148 CLR 245

Oliver Markisic - 1st Plaintiff PARTIES : Marika Markisic - 2nd Plaintiff Mick Keelty - Defendant

1st Plaintiff in person COUNSEL : David Robinson SC with T Leibman - Defendant

SOLICITORS : Australian Government Solicitor - Defendant

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

20369/01 Oliver Markisic & Anor v Mick Keelty

JUDGMENT 1 SIMPSON J: Oliver and Marika Markisic are the plaintiffs in proceedings commenced by statement of claim filed in this Court on 9 May 2001. The sole defendant to the proceedings is the Commonwealth of Australia. The statement of claim has been amended on a number of occasions. For present purposes, it is not necessary to explore the nature of the relief there sought. By notice of motion filed in this Court on 14 June 2005 Oliver Markisic seeks an order expressed in the following terms: "... that Mick Keelty, Commissioner of the Australian Federal Police, to shaw (sic) cause why not be held in contempt of the Supreme Court of New South Wales".

This application is the subject matter of the present proceedings. 2 Attached to the notice of motion is a statement of charge, expressed as follows: "1. Mick Keelty, Commissioner of the Australian Federal Police challenged the authority of the Court and committed contempt of court by not providing all the documents as required under the Subpoena for production of documents issued by the Supreme Court of NSW on 06 April 2004 and addressed to the Commissioner of the Australian Federal Police." 3 I will henceforth refer to Mr Keelty as "the Commissioner". 4 The notice of motion was returnable on 4 July 2005. On that day Mr Markisic, who, with the assistance of his brother, represented himself, sought additional time to prepare himself for the presentation of his case. I stood the matter over to 10.00 am on 7 July 2005 for hearing. On that day Mr Markisic sought a further adjournment. This was on the basis that senior counsel who appeared for the Commissioner had that morning provided him with a list of authorities, to which he had not then had access. I declined the further adjournment and proceeded to hearing. 5 The notice of motion was supported by an affidavit sworn on 14 June 2005 by Mr Markisic, and filed on the same day. From that affidavit, which was not the subject of cross-examination, the following assertions of fact may be gleaned. 6 On 6 April 2004, at the behest of Mr Markisic, this Court issued a subpoena directed to the Commissioner requiring the production of certain documents. These were identified in the Schedule to the subpoena as: "1) The Warrant to take possession of the child Elena Markisic born 03.05.1997, which is a document the five members of the AFP should have used as a lawful justification for entering the house of Oliver and Marika Markisic (the plaintiffs) on 29.09.1998 and taking of the above child from the said house

2. All records, documents, emails, communications and notes in the possession of the Australian Federal Police in relation to the supposed above warrant
3. All records, documents, emails, communications and notes in the possession of the Australian Federal Police which refer to or relate to the following persons; in 1998/99 a) Dragan Markisic, whose date of birth is 02.08.1959 b) Elena Markisic, whose date of birth is 03.05.1997 c) Katarina Markisic, whose date of birth is 04.04.1970 d) Oliver Markisic, whose date of birth is 16.09.1955 e) Marika Markisic, whose date of birth is 01.03.1935"

("1998/1999" is inserted after the last date in handwriting.) 7 The subpoena was first returnable on 28 April 2004. On that date the Commissioner did not produce any documents. Thereafter, it seems, the subpoena was stood over from time to time and was listed on 14 May 2004, 31 May 2004 and 10 June 2004. 8 On 14 May 2004 the Commissioner produced some documents in response to the subpoena, but Mr Markisic questioned (and continues to question) the completeness of his response to the subpoena. He had some discussions with a solicitor employed in the Legal Branch of the Australian Federal Police ("the AFP") who advised him that the Commissioner had produced all relevant documents in the possession of the AFP. He also had some discussions with a Mr Greg Kathner, a solicitor employed by the Australian Government Solicitor ("AGS") who advised him to similar effect. 9 Thereafter there was further communication between Mr Markisic and representatives of the Commissioner, with Mr Markisic pursuing his complaint about the asserted inadequacy of the Commissioner's response to the subpoena. Indeed, on 16 June 2004, Mr and Mrs Markisic filed a notice of motion seeking an order that the Commissioner produce the documents encompassed by the schedule to the subpoena. It may be of no significance but, although an order against the Commissioner was expressly sought, he was not named as a respondent to the notice of motion. On 7 October a hearing of this notice of motion commenced before Smart AJ, who then advised Mr Markisic to write to the Commissioner pointing out the inadequacy of his response to the subpoena; and that, if that did not elicit a satisfactory response, to take out a motion as to the allegedly unsatisfactory return, making the Commissioner a party to the notice of motion. 10 On 11 October Mr Markisic did write a letter to the Commissioner, as advised by Smart AJ. On 14 October, on behalf of the Commissioner, some additional documents were produced to the Court in response to the subpoena. In a covering letter it was asserted that the Australian Federal Police ("AFP") had now produced all documentation in response to the subpoena. On 18 October a letter was written to Mr Markisic on behalf of the AFP, making the same assertion. Mr Markisic did not accept the assurance. 11 There followed some telephone and personal communications between Mr Markisic and solicitors representing the Commonwealth, and, it may be assumed, the Commissioner. 12 On 3 December Mr Markisic filed another notice of motion, again requiring that the Commissioner produce all of the documents identified in the subpoena. Again, although the order was sought against the Commissioner, the Commissioner was not named as a party to the notice of motion. Again, that may not matter, having regard to the manner in which the matter has been handled on behalf of the Commissioner. 13 That notice of motion came before Registrar Howe on 10 December. Mr Markisic was not present. The registrar dismissed the notice of motion. 14 On 3 February 2005 the hearing of the notice of motion of 16 June resumed before Smart AJ. 15 On that day the Commissioner produced further documents, and the communications between the parties continued, with Mr Markisic continuing to claim that all relevant documents had not been produced. 16 On 5 May 2005 Ms Kylie Carson, who identified herself as: "Federal Agent 10325 Team Leader Legal Process Team Australian Federal Police Sydney Office"

wrote to the Court. Ms Carson set out something of the history of the matter and then wrote: "In December 2004, further searches were conducted to locate any material that may not have been produced. These searches identified several legal files and a previously unidentified file in relation to Elena Markisic. These documents were reviewed and further documentation was produced in answer to the subpoena. It is our understanding that this material was produced to the court by the Australian Government Solicitor before His Honour Acting Justice Smart on 3 February 2005. At that time legal professional privilege claims were made in relation to certain documentation by AGS on behalf of the Australian Federal Police. Further, it was agreed between the parties that certain documents would be edited on the grounds of privacy. The Australian Federal Police confirmed that there is nothing further to produce in answer to the Markisic subpoena." 17 On 6 May 2005 the matter was again before Registrar Howe, when the letter from Ms Carson, asserting that all documentation had been provided, was tendered in evidence. Mr Markisic continued to maintain that this was incorrect. Registrar Howe directed Mr Markisic to serve on the Commissioner a list of the documents he claimed to be still outstanding. On 20 May the plaintiff sent such a list to the Commissioner. He identified a number of reports, notes, minutes of meetings and other documents, which, according to him, ought to have been produced in response to the subpoena. On 25 May, acting on behalf of the Commissioner, the Australian Government Solicitor ("AGS") responded in writing to Mr Markisic. 18 On 31 May 2005 Smart AJ dismissed the notice of motion of 16 June, giving reasons for doing so. 19 Mr Markisic maintains his belief that full compliance with the subpoena has not been effected. In order to support an inference to that effect, he annexed to his affidavit a series of documents (Annexures O - U) which, it may be inferred, are copies of correspondence between him or members of his family and officers of the AFP, neither the originals nor copies of which, he asserts, were produced in response to the subpoena. * * * 20 Mr Markisic was not cross-examined on his affidavit. The Commissioner called no evidence. 21 At the conclusion of the evidence, counsel for the Commissioner sought dismissal of the notice of motion on the basis that no prima facie case had been established. 22 A subpoena issued by the court amounts to an order, or command, to produce the items or documents identified in the Schedule. Failure to comply with an order of the court, including an order contained in a subpoena, is, at least if wilful, capable of amounting to contempt of the court, punishable by the court's process. 23 The Commissioner's first argument, however, was a challenge to the adequacy of the statement of charge. No application was made to strike out either the notice of motion or the statement of charge, nor for some form of summary judgment. 24 The challenge to the statement of charge was that it is defective because it does not contain any allegation that, to the extent that it may be shown that documents that come within the Schedule to the subpoena were not produced, the failure to produce them amounted to "deliberate suppression". This, it was argued, is a necessary element of contempt constituted by disobedience of a court's order. Reliance was placed upon the decision of the Court of Appeal in Ditfort v Katz, unreported, 8 July 1991. In that case a barrister was charged with contempt. The allegation was that, while in court: "... he did make a statement to the court which was false, thereby misleading the court to the detriment and prejudice of the claimant and thereby was misfeasant of his duties to the court." 25 The barrister filed a motion for summary dismissal. The Court considered it most expedient to deal with the matter as if on demurrer. Accordingly, the question was to be decided on the form of the charge, and whether the statement of charge as drawn disclosed prima facie a case of contempt of court. 26 The Court held: "In a case such as the present the act of contempt is the statement said here to be false, and equally whether that statement was made with the intention of interfering in the administration of justice is not essential to the proof. But it is essential to establish that the statement was a deliberate falsehood or amounted to the deliberate suppression of facts. The contempt here consists of the abuse of process constituted by the intention to deceive the court. So that intention is a necessary element of the act of contempt itself rather than a description of the intention which may have accompanied the act. The requirement that the act must be done to deceive the court entails deliberation, or knowledge of the falsity of the statement." 27 The Court further observed that the statement of charge where contempt is alleged is an allegation of criminal conduct, and must therefore be clearly and distinctly framed. In that case the statement of charge contained no allegation that the barrister knew that the statement he made was false, and, accordingly, did not disclose any offence. 28 Counsel who appeared for the Commissioner sought to draw an analogy between the kind of contempt there alleged and the kind of contempt here alleged. It is, however, to be observed, before considering whether the analogy is valid, that part of the Court's reasoning involved the consequences to the administration of justice if legal representatives could be found guilty of contempt by making a statement of fact believed to be true, but in fact untrue. There were, therefore, peculiar policy reasons referable to the particular circumstances of that case for the Court to reach the view it did. That does not mean, of course, that the analogy is inapt; but it does mean that its validity needs to be scrutinised with some care. 29 It may also be noted that the Court considered that the kind of contempt there under consideration was that described in the then current edition of the Law of Contempt, 2nd Edition (1983), Borrie and Lowe, as: "... abuse of the court's process amounting to or constituting contempt".

The Court quoted a passage from that text in the following terms: "The most serious example of the abuse of process is conduct which is intended to deceive the court, for example by the deliberate suppression of facts or by the presentation of falsehoods. Contempt also includes bringing a frivolous or vexatious proceeding." 30 The Court then held: "But it is essential to establish that the statement was a deliberate falsehood or amounted to the deliberate suppression of facts."

Alternatively, the Court used the formulation: "The contempt here consists of the abuse of process constituted by the intention to deceive the court." 31 Counsel appearing for the Commissioner sought to transpose that test to a charge of contempt constituted by disobedience of a court order. Thus, contempt constituted by non-compliance with an order such as a subpoena would (necessarily) involve an intention to mislead the court, by, for example, the suppression of facts. 32 It seems to me that that formulation is inapt as a prescription for the mens rea applicable to a case of contempt constituted by disobedience to a court order. It elevates the test to an artificially high level. While I accept that disobedience to a court order may be accompanied, or motivated, by an intention to mislead the court, and such disobedience could certainly amount to contempt, it is not necessary, in order to establish contempt, to go so far. 33 The kind of contempt here alleged by Mr Markisic is simple disobedience of a court order. That does not necessarily involve deliberate suppression of facts or the presentation of falsehoods. It does, however, involve a mental element. 34 The question that arises concerns the minimum mental element necessary to establish contempt. 35 Counsel relied upon the decision of the High Court in Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; 148 CLR 245. That case also involved an allegation of disobedience of a subpoena. The passage from which counsel drew comfort appears at p 256 and is in the following terms: "If, however, all the findings of the Court of Appeal are accepted, it is nevertheless clear that the contempt as charged was not committed. It was an element of each charge that the appellant well knew that it was the duty of the Bank of Tokyo to produce the handwritten memorandum and the typewritten memorandum in answer to the subpoena ... It was not proved that the appellant had any such knowledge: on the contrary, he had been advised by [a solicitor] that the bank was not obliged to produce the typewritten memorandum, and the reason for this advice extended equally to the handwritten memorandum. The appellant had not the slightest reason to doubt the correctness of that advice." 36 From this, counsel sought to show that knowledge of what was required by the subpoena is an essential element in every charge of "disobedience contempt". However, the applicability of the passage to the present case is not at all clear. In each charge of contempt in that case it was expressly alleged that the appellant had knowledge of the kind to which the court alluded. Indeed, in that part of the extract which I have excluded, the High Court made reference to those parts of the charge which pleaded knowledge. It is not clear that, in the passage relied upon, the High Court was holding that it is a necessary element of every charge of contempt constituted by disobedience to a subpoena, that there be knowledge that the subpoena requires production of the specific documents; the Court was holding that it was essential to the particular charge as there framed to prove such knowledge. 37 There are, however, other authorities that do incorporate into disobedience contempt an element of wilfulness or deliberation. 38 The starting point in this consideration is the decision of the High Court in Australasian Meat Industries Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98. There the Court's focus was upon whether the Federal Court of Australia had power to impose a fine for wilful disobedience to an order. The Court spent some time examining the distinction between contempts of a civil, and contempts of a criminal, nature. It held that the Federal Court did have the power in question. The Court drew a distinction between disobedience which is "wilful" and disobedience which is "casual, accidental or unintentional". Integral to the reasoning throughout is an assumption that disobedience to a court order is not contempt unless it is, at least, wilful, even if not contumacious. For example, at p 113, Gibbs CJ, Mason, Wilson and Deane JJ, wrote: "... a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional." 39 Applying that principle, in Bernard Putnin as Liquidator of MAFF Investments Pty Ltd (in liquidation) v Fuller (1991) 3 WAR 546, White AJ in the Western Australian Supreme Court wrote: "I accept the submission of counsel for the applicant that casual, accidental or unintentional disobedience to an order will not justify an order for committal, for which wilful disobedience must be shown: ..." 40 I am, therefore, satisfied that the minimum necessary to found a conviction for contempt constituted by disobedience to a court order is wilfulness in the failure to comply. 41 But that does not necessarily dispose of the present issue. The question is whether it is also necessary that the statement of charge be formulated so as to incorporate such an assertion. 42 In Hayden v Ditfort (1988) 93 FLR 131 the NSW Court of Appeal wrote: "Contempt proceedings are, as has been said many times, criminal in nature. They must therefore be approached, as the opponent agrees, with strictness and with proper respect for the rights of the person charged. He or she should only have to answer such a charge in circumstances where the charge, on its face, arguably gives rise to an offence." 43 That, I have concluded, provides the answer to the question I have just posed. The statement of charge formulated by Mr Markisic, lacking an allegation of wilfulness, does not "on its face" arguably give rise to an offence. The statement of charge is, in that respect, and subject to what appears below, defective. 44 The next question is what that conclusion should entail. The proceedings were conducted as a final hearing into the charge. The argument that was put was that no prima facie case had been established, although the argument was predominantly directed to the inadequacy of the statement of charge. In Ditfort v Katz, while the Court of Appeal had before it a motion seeking summary dismissal which it opted to treat as a demurrer to the statement of charge, it then dismissed the summons. 45 Some further defects were alleged by the Commissioner to affect the statement of charge. For example, the statement of charge does not pinpoint any date on which Mr Markisic alleges the contempt was committed. That is not merely a technical point: when the complaint is seen in the light of the evidence tendered by Mr Markisic, it can be seen that there are a number of occasions, with specific dates, on which it might be said that the Commissioner failed to comply with the subpoena; alternatively, it might be that Mr Markisic sought to allege a continuing contempt. The Commissioner is entitled to particularity as to the allegations made against him. He has not that particularity in the present framing of the statement of charge. Mr Markisic responded with the argument that, if I were to uphold what I might call the pleading points, I should grant leave to amend. 46 Here the Commissioner opted against taking objection to the statement of charge as a pleading point. He opted to proceed to a final hearing. In my opinion, he cannot be allowed to have it both ways. In electing to proceed to a final hearing, he has forfeited the right to challenge the formulation of the charge. (I do not mean by that that he has forfeited the right to rely upon strict proof of all elements of the offence.) The Commissioner also elected to press on with a final hearing without seeking to assert any right to particularisation. In all probability, had the Commissioner raised either of the pleading points pre-hearing, Mr Markisic would have been given leave to amend in order to rectify the defects. Further, since wilfulness is a necessary element in proof of the charge, its absence from the documentation causes no prejudice: whether wilfulness is pleaded or not, the charge will not succeed unless it is proved. The assertion of wilfulness may, therefore, without prejudice to the Commissioner, be read into the statement of charge. 47 The same cannot be said about the absence of particularisation of the date or dates of the alleged contempt. If Mr Markisic's evidence is sufficient to establish, to prima facie level, wilful non-compliance, then the Commissioner must know, with particularity, the date or dates on which he is alleged to have been in contempt in order to respond by, for example, explaining or justifying the apparent non-compliance. He may, for example, be able to show that, on that date or any one or more of those dates, he was not in possession of the documents, or was not aware that they were in his possession. 48 The absence of that particularity has a consequence in relation to the adequacy of the evidence tendered by Mr Markisic. Certainly, as I have indicated above, there was evidence that, from time to time, the Commissioner did indeed fail fully to comply with the terms of the subpoena, and, indeed, that even at the date of hearing there were documents that came within the schedule which it might be inferred were (or at least had been) in his possession and that were not produced. The fact that Mr Markisic had copies of those documents is not to the point; the failure to produce those documents leaves open a question of whether there were any others that ought to have been, but were not, produced. The mere (unchallenged) fact that, on at least two occasions, the Commissioner produced additional documents is evidence of non-compliance on the earlier occasions. In the absence of particularisation of the date of the alleged contempt upon which the prosecution proceeds, it cannot be said that the evidence establishes a prima facie case of contempt on any such occasion. 49 A further point made on behalf of the Commissioner concerned the evidence (or absence of evidence) going to his personal knowledge of the service of the subpoena, and what was required to be produced by the schedule. It was common ground that, after initial reluctance, AGS agreed to accept service of the subpoena on the Commissioner's behalf. That, it must be inferred, was done on the Commissioner's instructions. I do not think, therefore, that the Commissioner can then rely upon the absence of proof of his personal knowledge of the subpoena or its contents. He must be taken to have delegated the task of receiving and complying with the subpoena to others, but he must be taken also to have been fixed with the relevant knowledge himself. If that were not so, any litigant, or indeed any individual, could avoid the requirements of a subpoena by the simple device of instructing solicitors to accept service. 50 In Hayden v Ditfort the Court held that there was "absolutely no evidence" that Mr Hayden, who was sued as a Minister of the Crown, had the slightest knowledge of the subpoena, and that that fact made it virtually impossible to conclude that he was guilty of wilful disobedience of the subpoena there in question. That case, however, does not assist in the resolution of the present issue. There, the subpoena was addressed to "the Proper Officer" of the relevant department of state, of which Mr Hayden was the Minister. Here, the subpoena has been addressed to, and served at the (presumed) direction of, the Commissioner himself. For reasons I have already given he must be taken to have had notice of its contents. 51 In the end this case went to a final hearing and must be decided on its merits, and not on pleading points. I have examined carefully the evidence tendered by Mr Markisic. As I have observed above, there were at least two occasions when additional documentation was produced to the Court, clearly indicating that, on earlier occasions, compliance had been deficient. No explanation was forthcoming. That raises what is, really, the final question, and the question of substance: whether, on the evidence available, it could reasonably be inferred, to the criminal standard, that the non-compliance on either occasion (or as a continuing circumstance) was wilful. That no evidence was given by or on behalf of the Commissioner may be thought to be of some significance. Only the Commissioner can give evidence of what was in his mind; and only those acting on his behalf could give evidence of what was in their minds. However, it seems to me that taking this circumstance into account in what is properly classified as a criminal proceeding is prohibited: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; Dyers v The Queen [2002] HCA 45; 210 CLR 285. 52 Taking a simplistic view of the evidence produced by Mr Markisic, it would be possible to suspect that proper attention was not paid to what was required in order to comply properly with the subpoena; but it is also possible to perceive that the quantity of material (and its age - the schedule refers to an event of September 1998) might have made identification of the relevant material more difficult. Suspicion about the degree of commitment to the task of responding to the subpoena, either by the Commissioner or those acting on his behalf, is not sufficient to discharge the criminal onus. 53 In any event, I do not think it is possible to draw the inference of wilfulness to the requisite standard. 54 Accordingly, the plaintiff's notice of motion is dismissed.

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