Murray v The Chief Examiner [2018] VSCA 144

CRIMINAL LAW - Appeal - Sentence - Contempt of the Chief Examiner - Sentenced to 8 months' imprisonment - Whether sentence manifestly excessive - Purpose of Major Crime (Investigative Powers) Act 2004 is to enable evidence to be obtained about serious organised crime offences - Where applicant adhered to 'code of silence' and had relevant prior conviction - Where applicant subject to restrictive management regime in custody - Leave to appeal refused.

1 On 20 October 2017, a judge of the Trial Division found the applicant guilty of contempt of the Chief Examiner under s 49(1) of the Major Crime (Investigative Powers) Act 2004 ('Act') on the basis that the applicant, being a person attending before the Chief Examiner in answer to a witness summons, refused to be sworn or make an affirmation.[1] Subsequently, the judge sentenced the applicant to eight months' imprisonment.[2] The applicant has applied for leave to appeal against both his conviction and sentence.[3]

2 The facts are not in dispute and the following summary is largely taken from the reasons for judgment of the primary judge.

3 On 4 August 2016, the Court made a coercive powers order under s 9 of the Act, with respect to certain specified organised crime offences.

4 On 1 March 2017, the Chief Examiner issued a witness summons pursuant to s 15 of the Act requiring the applicant to appear before the Chief Examiner on 31 March 2017.

5 On 31 March 2017, the applicant attended before the Chief Examiner. The Chief Examiner complied with procedural steps and provided explanations as required by the Act. Relevantly, the transcript records the following exchanges between the Chief Examiner and the applicant:

CHIEF EXAMINER: Are you willing to proceed today without legal representation?

APPLICANT: Mate, I'm not gunna waste anyone's time. I'm not answering any questions today. I'm not lagging anyone, so you're wasting your time and mine. If you're gunna charge me, give me my charges this morning and that's it. I'm not answering anything.

...

CHIEF EXAMINER: So, [the applicant], that completes the preliminary matters. Do you have any questions about anything I've said so far?

APPLICANT: Nuh.

CHIEF EXAMINER: Do you need to consult further with your legal representative before we commence?

APPLICANT: Nuh.

CHIEF EXAMINER: Very well. I'm going to direct you to take an oath or make an affirmation. It will be in the form prescribed by the regulations. Now, [the applicant], you've indicated to me you're not going to answer any questions today. Is that right?

APPLICANT: Correct.

CHIEF EXAMINER: There's two ways we can proceed. You can - and I'm not telling you what to do or advising you what to do, it's your choice - but you can refuse to take the oath or affirmation or you can refuse to answer questions. Do you understand the difference?

APPLICANT: Yep.

CHIEF EXAMINER: I'm going to direct you to take an oath or make an affirmation that will be in the form prescribed by the regulations. Are you prepared to take the oath or affirmation?

APPLICANT: It's pointless taking the oath if I'm not answering questions, isn't it?

CHIEF EXAMINER: Well ---

APPLICANT: I'd be swearing an oath to answer truthfully.

CHIEF EXAMINER: Yes.

APPLICANT: I'm not answering questions, so it's pointless.

CHIEF EXAMINER: Okay. So let me just understand it: you're refusing to take the oath or affirmation?

APPLICANT: Yes.

CHIEF EXAMINER: Thank you. I'm now directing you to take an oath or affirmation in the form prescribed by the regulations. Will you take the oath or affirmation?

APPLICANT: No.

CHIEF EXAMINER: Are you prepared to tell me, [the applicant], why you won't take the oath or affirmation?

APPLICANT: Mate, this is very, very simple. This is set up for people to lag. I'm not a dog. I'm not answering questions. I'm not lagging anyone. Can't make it any more simple than that. You guys are gunna ask questions about people that I might know or know. I'm not gunna answer any questions.

CHIEF EXAMINER: And why is that?

APPLICANT: I'm not a dog, mate. I'm not lagging anyone.

CHIEF EXAMINER: That's your reason?

APPLICANT: That's right.

...

CHIEF EXAMINER: Well, you've made it clear to me you're not taking oath or affirmation.

APPLICANT: That's right.

CHIEF EXAMINER: If you don't take the oath or affirmation, I can't ask you any questions.

APPLICANT: Okay. So it's pointless going on.

...

6 The Chief Examiner then issued a certificate under s 49(2) of the Act charging the applicant with contempt.

The application for leave to appeal against conviction

7 The application for leave to appeal against conviction is based on a single proposed ground. As formulated in his notice of application for leave to appeal against conviction, the applicant described the ground as being:

The proper construction of section 49(1)(b) of the Major Crimes (Investigative Powers) Act 2004 (Vic) ('the Act)'.

1. The contrast between subsection ss36(2)-(4) of the Major Crimes (Investigative Powers) Regulations 2015 (Vic) and section 49(1)(b) of the the [sic] Act.
2. The significance of the requirement that an oath be in the 'prescribed form';

c. Contextual indicators that s49(1)(b) of the Act should be read strictly.

8 That description fails to articulate a proper ground of appeal. Having regard to the submissions made on the application, the applicant contends that the primary judge erred in his construction of s 49(1)(b) of the Act in two respects. First, he failed to hold that in a prosecution under that section there was a requirement for the prosecution to establish that the Chief Examiner had administered or attempted to administer an oath or affirmation to the witness. This was referred to in submissions as 'the administration requirement'. Secondly, he failed to hold that there was a requirement to expressly state to the witness the terms of the prescribed oath or affirmation. This was referred to in submissions as 'the identification requirement'.

9 For the reasons that follow, there was no error by the primary judge in the construction and application of s 49 to the facts, and the application for leave to appeal against conviction should be refused.

10 In furtherance of its purposes, which by s 1 includes providing for a regime for the use of coercive powers to investigate organised crime offences,[4] the Act authorises the examination in private of witnesses who may provide evidence or intelligence relating to organised crime offences. To that end, where the Court has made a coercive powers order under s 9 of the Act, the Act authorises the issuing of a witness summons by either the Supreme Court[5] or the Chief Examiner[6] which requires the recipient to attend before the Chief Examiner for the purposes of an examination.

11 In conducting an examination, the Chief Examiner is not bound by the rules of evidence and may regulate the conduct of the proceeding as he or she thinks fit.[7] Section 31 of the Act prescribes certain preliminary requirements that must be satisfied before any questions are asked of a witness at an examination. A witness may be represented by a legal practitioner[8] and, although the privilege against self-incrimination is abrogated by the Act,[9] legal professional privilege is preserved.[10]

12 In addition to the examination of a person who attends before the Chief Examiner pursuant to a witness summons, the Act also authorises the Chief Examiner to require any person present at an examination, and who is competent to give evidence, to give evidence.[11] Such a person is subject to the same penalties and liabilities as if the person had been served with a summons in accordance with the Act.[12]

13 The proposed ground of appeal concerns the construction of s 49 of the Act and its interplay with s 36. Those sections are critical to the resolution of the application and it is desirable to set out the relevant parts of them.

14 Relevantly, s 36 makes provision for the taking of evidence and provides as follows:

(1) At an examination -

(a) the Chief Examiner; or

(b) a legal practitioner representing the witness; or

(c) any person authorised by the Chief Examiner to do so -

may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates.

(2) The Chief Examiner may, at an examination, take evidence on oath or affirmation and for that purpose -

(a) the Chief Examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in the prescribed form; and

(b) the Chief Examiner may administer an oath or affirmation to a person so appearing at the examination.

(3) A person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with subsection (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement.

(4) A person who, without reasonable excuse, contravenes subsection (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

(1) A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person -

(a) fails without reasonable excuse to produce any document or other thing the person is required by the witness summons to produce; or

(b) being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination; or

(c) engages in any other conduct that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that Court.

(2) If it is alleged or appears to the Chief Examiner that a person is guilty of contempt of the Chief Examiner, the Chief Examiner may -

(a) issue a written certificate charging the person with contempt and setting out or attaching details of the alleged contempt (certificate of charge); and

(b) issue a warrant to arrest the person (arrest warrant).

(3) An arrest warrant -

(a) may be directed to -

(i) a named police officer; or

(ii) generally all police officers; and

(b) authorises the person to whom it is directed to arrest the person named in the warrant.

(4) A person who is arrested under an arrest warrant -

(a) is to be brought before the Supreme Court forthwith to be dealt with according to law; and

(b) may be detained in police custody in the meantime.

...

(10) A contempt of the Chief Examiner is to be dealt with by the Supreme Court as if -

(a) the contempt were a contempt of an inferior court; and

(b) the certificate of charge were an application to the Supreme Court for punishment for the contempt.

(11) A certificate of charge is evidence of the matters set out in or attached to it.

A threshold issue - relationship between s 36 and s 49

16 The primary judge held that the refusal referred to in s 49(1)(b) should be read as a refusal in response to a requirement under s 36(2)(a).[13] By a notice of contention, the Chief Examiner contends that the primary judge was wrong in this respect. There is accordingly a threshold issue as to whether compliance with s 36(2)(a) is required before there can be a refusal within the meaning of s 49(1)(b).

17 Initially, it is important to note that the certificate of charge signed by the Chief Examiner set out, as one of the details of the applicant's alleged contempt, the following (paragraph 11):

At the conclusion of the preliminary requirements that needed to be dealt with, I directed the witness to take an oath or make an affirmation. The witness refused to take an oath or make an affirmation as required by s 36(2) of the Act.

18 Senior counsel for the Chief Examiner submitted that s 36(2) was irrelevant to a contempt under s 49. She accepted that in order to establish a refusal within the meaning of s 49(1)(b) it is necessary to show that the witness had been under an obligation to take an oath or make an affirmation, but she submitted that this obligation is to be found, implicitly, in s 49 itself rather than in s 36(2). It was submitted that s 49 'accords with' common law contempt in the face of the Court and was not premised upon a requirement having been made to take an oath or make an affirmation under s 36(2)(a).

19 The submission of senior counsel for the Chief Examiner that s 49 is intended to 'accord with' common law contempt in the face of the Court is well-founded. Section 49(1)(c) expressly provides that a person attending before the Chief Examiner in answer to a witness summons is guilty of contempt if that person engages in any conduct (other than that specifically dealt with under s 49(1)(a) or (b)) that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that Court. The provisions of s 49(2), (3) and (4) reflect features of the summary procedure for dealing with contempt in the face of the Court.[14] As senior counsel for the Chief Examiner pointed out, the relevant second reading speech confirms this legislative intention.[15]

20 Notwithstanding the acceptance of the Chief Examiner's submission as to the general character of s 49, in our opinion, the primary judge was correct to conclude that a refusal in s 49(1)(b) must be read as a refusal in response to a requirement under s 36(2)(a).

21 When a contempt in the face of the Court is alleged by virtue of a refusal to take an oath or make an affirmation for the purpose of giving evidence, there is no need to inquire as to the Court's authority to take evidence or its authority to require witnesses to be sworn or to affirm for that purpose. It is inherent in the Court's function as a Court. That is not the case with the Chief Examiner. He can take evidence (in this context) only because s 36(1) and (2) empower him to do so. Section 36(2) also empowers him to require a person to take an oath or make an affirmation, and to administer an oath or affirmation, 'for that purpose'. Absent compliance with s 36(1) and (2), a refusal to be sworn or to make an affirmation is a refusal to comply with a requirement that the requiring party has no authority to make. As the trial judge said, there is no other power in the Act to require the taking of an oath or the making of an affirmation.[16]

22 Having said that, the provisions dealing with a refusal in s 49 are separate and distinct from those in s 36(3) and (4). Section 49 does, as senior counsel for the Chief Examiner contended, substantially reflect common law contempt in the face of the Court. On the other hand, s 36(3) and (4) create a statutory obligation not to refuse and a separate and distinct statutory offence as a result of contravention of that obligation.

23 In any event, in this particular case, the existence of a valid requirement under s 36(2) was a matter relied upon by the Chief Examiner as one of the details of the contempt set out in the certificate of charge.

24 We proceed then on the basis that a refusal under s 49(1)(b) must be read as a refusal in response to a requirement under s 36(2)(a).

Submissions on the administration requirement

25 The applicant submitted that, in order to make out a contravention of s 49(1)(b) of the Act, a witness must 'refuse to be sworn' and that, when regard is had to the contrast in language between s 36 and s 49, a refusal to be sworn is not established merely by a refusal by the witness to comply with a requirement under s 36(2)(a) to take an oath or affirmation. Rather, it was submitted that a contravention of s 49(1)(b) arises where (a) the witness has been required to take an oath or affirmation in the prescribed form under s 36(2)(a); (b) the Chief Examiner purports to exercise the power conferred by s 36(2)(b) to administer the oath or affirmation; and (c) the witness refuses to be sworn or to affirm contrary to s 49(1)(b).

26 The applicant's argument involved the following steps:

(a) in carrying out the function of conducting examinations, the Chief Examiner may, if he or she considers it necessary, require a witness to take an oath or affirmation: s 36(2)(a);

(b) the Chief Examiner has power to administer an oath or affirmation where he or she considers it necessary to take evidence on oath or affirmation: s 36(2)(b);

(c) unlike s 36(3) and (4), which govern a refusal or failure in response to a requirement pursuant to s 36(2)(a), a contempt of the Chief Examiner under s 49(1)(b) occurs where there is a refusal 'to be sworn or to make an affirmation'. This can only occur if the Chief Examiner administers, or attempts to administer, the oath or affirmation and the witness refuses to take that oath or affirmation.

27 In relation to the last step, the applicant submitted that 'swearing a witness' involves the physical act of administering an oath to a witness and asking them to bind their conscience to the oath.

28 The critical textual difference on which the argument depends is that s 36(3) refers to a refusal to take an oath when required, while s 49(1)(b) refers to a refusal to be sworn. It is contended that this difference connotes a different sphere of operation in the two provisions.

29 The Chief Examiner's principal submission was that s 36 was irrelevant to s 49. We have rejected that. The Chief Examiner submitted that if compliance with s 36(2) was a prerequisite to an offence under s 49, the administration requirement was not to be found in s 36(2) or s 49(1)(b).

30 The phrase 'refuses to be sworn' in s 49(1)(b) is not a technical term or one with a settled meaning arrived at by usage or authority. As a matter of plain grammatical language, a refusal to be sworn occurs if the putative witness is required but refuses to take an oath. A refusal requires more than an ambivalence or reluctance to be sworn. It means an unequivocal refusal to take an oath for the purpose of giving sworn testimony. A refusal to take an oath as directed would constitute a contempt of court and has been described as a refusal to give sworn evidence.[17]

31 On the hearing of a charge under s 49(1)(b), the prosecution would need to establish beyond reasonable doubt the following elements:

(a) the respondent attended before the Chief Examiner in answer to a witness summons;

(b) the respondent was called as a witness at an examination; and

(c) the respondent refused to be sworn or to make an affirmation.

32 There was no issue below, and none before us, that the first two matters were established to the criminal standard.

33 Notably, s 49 only applies to a person who attends before the Chief Examiner in answer to a witness summons. Section 49(1)(b) provides that a person is guilty of contempt if the person 'being called or examined as a witness at an examination, refuses to be sworn'. The subsection also catches a person who, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination.

34 Section 49 uses the terms 'refuses' and 'fails', and they are clearly intended to denote different things. It follows that a refusal requires something more than simply a failure to do the required act, in this case the taking of the oath or the making of an affirmation. 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'. The Oxford Dictionary defines 'refusal' as 'the act of refusing; a denial or rejection of something demanded or offered'.

35 Section 49(1)(b) applies where a person has been called or examined as a witness and refuses to be sworn or to make an affirmation. Given that a refusal is the rejection to do something that is requested or demanded, or, in this context, required, a refusal can only occur if the witness is requested, demanded or required to take the oath or make the affirmation. The only relevant request, demand or requirement which can be made is that provided for in s 36(2)(a).

36 Section 36(2) provides that the Chief Examiner may, at an examination, take evidence on oath or affirmation and for that purpose - (a) the Chief Examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation; and (b) the Chief Examiner may administer an oath or affirmation to a person so appearing at the examination.

37 Section 36(3) makes it an offence for a person appearing as a witness to refuse to take an oath or make an affirmation when required in accordance with sub-s (2). The applicant submits that a refusal to take the oath or make the affirmation is an offence pursuant to s 36(3) and (4) and the legislature would not have intended to make the same conduct an offence under s 49(1)(b).

38 As the plurality of the High Court observed Magaming v The Queen,[18] there are now, and long have been, many statutory offences where one form of offence can be seen as an aggravated form of another.[19] In those cases, proof of the more serious offence will necessarily establish the elements of the other offence.[20] There is no reason based on principle or experience that two offences cannot share common elements.

39 Further, here, there are differences in the elements of the two relevant offences. In contrast to s 36(3) and (4), s 49(1)(b) only applies to witnesses who attend in answer to a summons. The availability of a defence of 'reasonable excuse' differs between the two offence provisions.[21]

40 The fact that the conduct that forms the physical element of the offence in s 49(1)(b) would often also constitute an element of an offence under s 36(3) and (4) is not, to our minds, significant in the construction of the phrase 'refuses to be sworn' in s 49(1)(b).

41 The words in s 49(1)(b) and s 36(3) are different. As a general proposition, where Parliament uses different words it may be expected that it intends to produce a different meaning.[22] Nevertheless, in the present case, the words of s 49(1)(b) are perfectly clear and, in our opinion, are satisfied in circumstances where the witness refuses to take an oath or make an affirmation as required by the Chief Examiner pursuant to s 36(2)(a). There is no additional requirement that the oath or affirmation be administered, as contended for by the applicant.

42 The conclusion that no relevant significance can be attached to the difference in language between s 36(3) and s 49(1)(b) is reinforced when regard is had to the provisions relating to the making of an affirmation. Section 36(3) makes it an offence for a person appearing as a witness to refuse to make an affirmation when required by s 36(2). Section 49(1)(b) provides that it is a contempt for a person being called or examined as a witness under summons to refuse to make an affirmation. There is no relevant difference in language between s 36(3) and s 49(1)(b) as to the element of refusing to make an affirmation. The textual hook concerning oaths on which the applicant relies to submit that something more than a refusal is necessary for a contempt is not present in relation to affirmations. That strongly suggests that no requirement beyond a refusal is intended in both s 36(3) and s 49(1)(b).

43 In the context of a contempt of court, a contempt may be committed if a witness refuses to be sworn whether or not steps have been taken to administer the oath.[23] Given the substantive effect is the same whether the witness refuses to take an oath in advance of any attempt to administer it or after an ineffective attempt, no point would be served by requiring an attempt to administer an oath to which the putative witness will refuse to subscribe. Indeed, the act of administering an oath is not unilateral. It requires the witness to participate by acknowledging that he or she is bound by the oath.

44 The applicant contended that there had to be a purported exercise of the power conferred by s 36(2)(b) before there could be a refusal to be sworn under s 49(1)(b). In our view, that argument misapprehends the import of s 36(2)(b). As the primary judge observed, correctly in our view, s 36(2)(a) provides authority to the Chief Examiner to compel a witness to take an oath or make an affirmation while s 36(2)(b) is a 'facultative provision in the sense that it gives lawful authority to the Chief Examiner to actually administer the oath or affirmation so compelled.'[24]

Submissions on the identification requirement

45 The applicant submitted that the Chief Examiner cannot require a person to take an oath or make an affirmation under s 36(2)(a) without expressly identifying the terms of the oath or affirmation. It was submitted that this is essential because a witness's preparedness to take an oath or affirmation, and so to comply with a requirement by the Chief Examiner, may be influenced by the form of the oath or affirmation that he or she is asked take. It was submitted that an awareness of the form of the oath is an important ingredient in giving sworn evidence. In support of the submission that it was necessary to identify the form of the oath or affirmation, the applicant relied on the judgment of Studdert J in Fehon v Domican ('Fehon').[25]

46 If s 36(2) is applicable, the Chief Examiner submitted that a person will refuse to be sworn if they refuse to comply with a requirement expressed by the Chief Examiner to take an oath or to make an affirmation in the prescribed form. Provided that requirement is clear, it is not necessary that the words of the prescribed oath or affirmation be described or recited to the witness.

47 It is initially necessary to address the decision in Fehon.

48 Fehon concerned s 28 of the National Crime Authority Act 1984 (Cth), which empowered a member of the National Crime Authority to summons a witness to give evidence at a hearing before the Authority. Section 28(5) provided that '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'.

49 At a hearing before the Authority, a witness refused to be sworn and, on the second occasion, said through his lawyer that he did not wish to take an oath or make an affirmation and he did not wish to answer any questions.[26] The witness was charged with a statutory offence of refusing to take an oath or affirmation when called upon to do so. A magistrate dismissed the charge on the basis that an essential element of the charge was that the oath must be administered before it could be said that the person had refused to take the oath.[27] Studdert J in the Supreme Court of New South Wales dismissed an appeal.

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.[28]

51 The applicant fastened on that paragraph and a later observation of his Honour that the section required the accused to take an oath or to make an affirmation in a particular form and that 'there could be no relevant refusal or failure until the defendant was made aware of the form of the oath or affirmation required.'[29]

52 In our opinion, the basis upon which Studdert J dismissed the appeal in Fehon was that the legislation there required the oath or affirmation to be 'in a form approved by the member presiding at the hearing', and there was no evidence that the presiding member had approved the form of oath or affirmation which the witness had been required to take, or indeed had approved any form of oath or affirmation.[30] In those circumstances, his Honour concluded that the prosecution had failed to establish an element of the offence, namely that the witness had been required to take an oath or affirmation in an approved form.

53 Fehon is not relevantly applicable to the position here. In Fehon, the absence of evidence of an approved form of oath or affirmation was fatal. Here, there is a prescribed form, and the requirement by the Chief Examiner to take an oath or make an affirmation expressly required the witness to do so in that prescribed form, precisely as stated in the statutory text.

54 The applicant further submitted that the obligation to describe the terms of the proposed oath would only be satisfied if the complete terms of the oath were provided. As was pointed out in argument, it would follow from this contention that the Chief Examiner would be required to provide the complete terms of both the prescribed oath and affirmation in every case. Such a result is improbable in the extreme.

55 Section 36(2)(a) of the Act provides that the Chief Examiner may require a person to take an oath or make an affirmation in the prescribed form. That is precisely what occurred in the present case. The Chief Examiner said to the applicant that he was 'going to direct [the applicant] to take an oath or make an affirmation that will be in the form prescribed by the regulations.' That was met with a steadfast and unequivocal refusal on the part of the applicant. In those circumstances, in our opinion, the judge was clearly correct to find that the applicant had refused to be sworn in contravention of s 49(1)(b).

56 The fact that s 49 is a criminal provision does not produce any different result. The principle that statutes creating offences are to be strictly construed lacks the potency that it may once have had.[31] It forms part of the context in which s 49 falls to be construed.[32] However, given that both text and purpose are clear, it provides no reason not to prefer the construction that we favour.

57 There was no error in the construction arrived at by the primary judge and the application for leave to appeal against conviction should be refused. We would note, for completeness, that if we had accepted the Chief Examiner's argument about the source of the obligation to take the oath or make an affirmation the same result would obtain.

The application for leave to appeal against sentence

58 The application for leave to appeal against sentence was advanced on the single proposed ground that the sentence imposed by the primary judge was manifestly excessive. The principles that must be applied in considering a ground of manifest excess are well-established.

59 An applicant seeking to make out the ground of manifest excess must demonstrate that the sentence imposed is 'so far outside the range of a reasonable discretionary judgment as to itself bespeak error.'[33] In Clarkson v The Queen, this Court said:

the ground of manifest excess will only succeed if it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of the appellate courts, except where clear error is shown.[34]

60 In Wong v The Queen, the High Court stated that appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases' and that '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'[35]

61 In his reasons for sentence, the primary judge observed that a contempt of the Chief Examiner is to be dealt with as if it were a contempt of an inferior court and as if the certificate of charge were an application to the Supreme Court for punishment for contempt.[36]

62 His Honour referred to the decision in Wood v Staunton (No 5)[37] as providing guidance on the relevant matters in relation to sentence for a charge of contempt. Those matters included:

(b) whether the contemnor was aware of the consequences to himself or herself of what he or she did;

(c) the actual consequences of the contempt on the relevant trial or enquiry;

(d) whether the contempt was committed in the context of serious crime;

(f) whether the contemnor has received any benefit by indicating an intention to give evidence;

(g) whether there has been any apology or public expression of contrition;

(h) the character and antecedents of the contemnor;

63 His Honour stated that these matters could be subsumed within the categories established by the sentencing guidelines in s 5 of the Sentencing Act 1991.[39]

64 The applicant did not submit that there was any error in principle in the approach taken by the primary judge.

65 The primary judge then considered the nature and gravity of the offending and the applicant's culpability and degree of responsibility. The judge noted that the applicant's refusal to be sworn was 'blatant' and that he had not sought to purge his contempt.

66 The applicant's counsel submitted that there were a number of factors in mitigation, namely that:

(a) the secrecy provisions and procedures under the Act were ineffective;

(b) the applicant's legal advice was to the effect that a refusal to be sworn and answer questions was not 'a big deal';

(c) the applicant was unaware that he could have answered questions about himself;

(d) the refusal to be sworn was of lower significance because the offences the subject of the summons have been substantially resolved and there was no evidence that the applicant had any involvement in or knowledge of the offences; and

(e) the refusal to take the oath was not aggravated by any offensive behaviour. This was not contested by the prosecution.[40]

67 In relation to the first of these factors, the judge did not accept that the applicant's concerns about lack of secrecy was the reason he refused to take the oath. In that regard, his Honour noted that the applicant had indicated to the Chief Examiner that he did not have any concerns for his safety. Further, the applicant's counsel had not submitted that threats allegedly made to applicant were the result of his attendance before the Chief Examiner.[41] The judge said he was satisfied that the principal reason for the applicant's refusal to comply was that he intended to maintain the 'code of silence'.[42]

68 The judge rejected the submission that the applicant's refusal to comply was contributed to by advice from his legal representative. His Honour observed that the applicant would 'now be well aware that it is a very serious matter; and [he] ha[d] not since offered to co-operate.'[43] Having regard to the transcript of the examination, his Honour was also not satisfied that the applicant was unaware that he could have answered questions about himself.[44]

69 The judge stated that he could not make any finding on the evidence as to the effect of the applicant's refusal to be sworn on the investigation of the offences that were the subject of the summons.[45] However, his Honour noted that it was relevant for sentencing purposes that, before issuing the summons, the Chief Examiner was required to be satisfied that it was reasonable to do so after considering the value of the information sought to be obtained.[46] It was also said to be relevant that the applicant had been summoned to give evidence about an organised crime offence which, by definition, is a very serious offence.[47]

70 The applicant submitted that his time in custody would be more onerous by reason of various medical conditions, threats that had been made to him and his family and absence of contact with his wife and daughter, and the fact that he would be subject to a restrictive management regime by reason of his status in an outlaw motorcycle gang.[48] The judge accepted that the applicant would endure anguish by reason of threats made to his wife and daughter and that he would probably spend all or most of his term of imprisonment in a 'very harsh' restrictive management regime.[49] The judge found that this was a 'significant mitigating factor', even though the risk to the applicant's safety arose from his voluntary participation in the outlaw motorcycle gang.[50]

71 The judge then dealt with the applicant's previous character, noting that the applicant had a prior conviction for a cognate offence, being the offence of attempting to pervert the course of justice.[51]

72 The judge said he had had regard to current sentencing practice for contempt, both under the Act and otherwise.[52] The judge expressed the view that the applicant's contempt required a greater sentence than that imposed in the s 49 cases to which he had been referred. In that regard, his Honour noted that the applicant's refusal to cooperate was 'in direct defiance of the legislation' and was principally the result of his refusal to break the code of silence.[53] His Honour also referred to the fact that the applicant had demonstrated no remorse, had poor prospects of rehabilitation, and had a prior conviction for a cognate offence.[54]

73 The judge concluded by observing that, in order to achieve the purposes of general and specific deterrence and denunciation, the Court must impose 'salutary deterrent penalties' lest the Act 'become a toothless paper tiger in the legislature's patent attempt to detect and prosecute organised criminal activities by impinging on the common law right to silence and compelling witnesses to answer the examiner's questions'.[55] The judge sentenced the applicant to eight months' imprisonment.[56]

74 In his written submissions, which were not further elaborated on by oral argument, the applicant concentrated on the following factors. First, it was said that it could not be shown that the applicant's refusal to participate in the examination process had any or any material effect on the outcome or progress of investigations into the organised crime offence. It was further emphasised that the applicant had not derived any benefit from his contempt; to the contrary, he had exposed himself to a term of imprisonment.

75 The applicant also pointed to the concerns that the applicant had about the extent to which his appearance before the Chief Examiner would remain secret. To that submission was added the point that the applicant and his family had been the subject of serious threats, although the evidence did not establish any connection between those threats and the refusal to be sworn. The applicant also noted the onerous nature of the applicant's incarceration which significantly restricted his activities in prison and which, combined with a number of medical conditions, would make his time in custody more onerous than is usually the case.

76 The applicant submitted that, contrary to the finding of the primary judge, the applicant's offending was not more serious because it was a 'blunt refusal to co-operate' or because of the applicant's adherence to a code of silence.[57]

Analysis - application for leave to appeal against sentence

77 In our view, it cannot be said that the sentence was wholly outside the range of sentences available to the judge.

78 The offence was serious. Section 49 created a statutory form of contempt and carried with it the consequence that there is no maximum sentence prescribed. Its purpose is to enable the gathering of evidence and intelligence in circumstances where, for obvious reasons, that evidence would otherwise remain unavailable to investigators. The abrogation of the privilege against self-incrimination, and the restrictive secrecy regime that surrounds the making of a coercive powers order and examinations under the Act, highlights the importance that the Act attaches to the obtaining of evidence and intelligence about organised crime offences.

79 The ability to obtain such information depends on being able to enforce the obligation imposed on witnesses, who will often be reluctant or recalcitrant, to answer questions before the Chief Examiner. For that reason, deterrence and punishment are critical factors in sentencing for an offence against s 49 of the Act.

80 The applicant did not point to any subjective factor that influenced his decision to be sworn, such as fear of the consequences. He was clear that he would not participate in the examination as a witness because he would not 'lag'. That conduct is the very essence of what the section is designed to overcome.

81 Both the primary judge and this Court were taken to a number of sentences of imposed in the Supreme Court for contraventions of s 49 of the Act. None of them involved a sentence as high as eight months. The sentences ranged from two months to six months imprisonment. Each had its own unique features. The requirement to have regard to current sentencing practices in s 5(2)(b) of the Sentencing Act 1991 is an important mechanism to advance consistency in sentencing. But the dispositions in other cases do not set the parameters of the permissible range. Those cases do demonstrate that a contravention will usually, if not invariably, call for a term of immediate imprisonment. That fact underscores the seriousness of the offence.

82 Further, as the primary judge noted, the applicant had a relevant prior conviction for attempting to pervert the course of justice.

83 The judge had regard to the factors that were advanced in mitigation of sentence. We have also had regard to those factors. The evidence established, and the judge found, that the applicant's time in prison had been and is likely to continue to be subject to a harsh restrictive management regime. That was a factor that deserved great weight.

84 Balancing all of the factors that weighed in mitigation of sentence in the context of the seriousness of the offence and the need for deterrence and denunciation, we are not satisfied that the term of imprisonment fixed by the judge was wholly outside the permissible range.

85 The applications for leave to appeal against conviction and against sentence should be refused.

[1] [2017] VSC 642 ('Reasons'). In the reasons for judgment on conviction, the respondent (the applicant before this Court) was identified as Gordon Williams (a pseudonym). The use of a pseudonym is no longer sought by the parties.

[2] [2018] VSC 133 ('Reasons for sentence').

[3] The finding of guilt is a 'conviction' for the purposes of an application for leave to appeal under s 274 of the Criminal Procedure Act 2009. See the definition of 'conviction' in s 3 of the Criminal Procedure Act 2009.

[4] 'Organised crime offences' is defined in s 3AA of the Major Crime (Investigative Powers) Act 2004 ('Act').

[10] Ibid s 40. See also Act ss 41, 42.

[14] See Supreme Court (General Civil Procedure) Rules 2015 O 75 pt 2.

[15] Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2004, 615 (Sherryl Garbutt).

[17] See R v Lemmens [2010] QSC 271 [25]-[28]. See also Smith v The Queen (1991) 25 NSWLR 1; R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132, 142-3 [39].

[18] [2013] HCA 40; (2013) 252 CLR 381.

[19] Ibid 388, [15] (French CJ, Hayne, Crennan, Kiefel and Bell JJ), 402 [69] (Gageler J).

[20] Ibid 388-9 [15]-[16] (French CJ, Hayne, Crennan, Kiefel and Bell JJ), 402 [69] (Gageler J).

[22] See, eg, Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151, 160 [53] (Lander J).

[23] See R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132, 138-9 [19]-[20].

[25] [2002] NSWSC 103; (2002) 127 A Crim R 592 ('Fehon').

[31] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576 (Gibbs J).

[32] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 49 [57] (Hayne, Heydon, Crennan and Kiefel JJ).

[33] Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, with whom Redlich JA agreed).

[34] [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[35] [2001] HCA 64; (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538-9 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[36] Reasons for sentence [15], citing Act s 49(10).

[37] (1996) 86 A Crim R 183.

[55] Ibid [52], quoting R v Abell [2007] QCA 448 [33].