NSW Crime Commission v Field

NSW Crime Commission v Field - [2003] NSWSC 5 - NSWSC 2003 case summary — Zoe

[9]

7 On 13 August 2001 Ms Holz was present at the Supreme Court when the respondent appeared for his examination before Deputy Registrar Younes. Annexed to her affidavit is a transcript of the proceedings on that day. Relevantly the transcript records the following: "Fullerton: I call Malcolm Gordon Field. Deputy Registrar: He would need to give evidence from this part here. Thank you sir. May the witness be sworn please. Court Officer: Mr Field, would you like to swear the oath or make an affirmation? Deputy Registrar: Sir, you'll have to respond to what the Court Officer has asked you. Jones: Registrar, I can indicate for the convenience of the Court my instructions are that this examinee wishes to remain silent until after completion of his criminal trial. He is currently confronting the Court on criminal charges, serious criminal charges, and I understand on instructions that will be the position he'll be taking in respect of these proceedings and … Deputy Registrar: Does he know though that it is not a ground? Jones: He knows it is not a ground. Deputy Registrar: I presume you have advised him that … Jones: And I have had a conference with him this morning with my solicitor and he has been made aware of the implications and the primary implication is that it could result in a contempt charge … Deputy Registrar: Yes, it will be. Jones: … and following from that would be some form of custodial order. Deputy Registrar: Yes. Jones: And he has been made aware of that and I'll make that as a matter for the record now. Deputy Registrar: OK. Ms Fullerton, do you wish to address me on that issue at all? Fullerton: No, I don't Madame Registrar. If that is the position that my learned friend advances on behalf of the examinee and that the examinee is aware both of his obligation and that a criminal contempt can be found against him by reason of the position he takes, I don't need to address you further, save as to ask that Mr Field's contempt proceeding, because it is a contempt in the face of this Court, be stood over to one day next week in order that a notice of motion might be made returnable on that day and the matter be processed in accordance with Pt 55 of the Supreme Court Rules. Deputy Registrar: I'll just give him a warning. Fullerton: I think you should do that. Deputy Registrar: If you don't answer any questions that are put to you today, there is a possibility, indeed a probability that you will be found of criminal contempt of this Court, do you wish to pursue the line of action that you are taking at the moment, namely that you don't answer any questions? Jones: I'm instructed that's the case, Registrar."

[32]

26 Part 55 r 13 of the SCR provides: "(i) Where the contemnor is not a corporation, the court may punish contempt by committal to a correctional centre or fine or both. … (iii) The court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the court may approve for good behaviour and performs the terms of the security." 27 In Attorney-General for New South Wales v Whiley (1993) 31 NSWLR 314 the Court observed at 320: "A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 at 314: ' … it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way.' Being a common law offence there is no statutory maximum penalty. Punishment for contempt is referred to in Supreme Court Rules 1970, Part 55 Rule 13(1) but, as was said in Registrar of the Court of Appeal v Maniam [No 2] , this rule confirms the court's power of punishment but does not exhaust it." 28 In Whiley the Court found that there were strong policy reasons for applying the Sentencing Act 1989 to the sentencing of persons convicted of contempt. Thus, a contemnor sentenced to imprisonment may be afforded the opportunity of release on parole. 29 In Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 Studdert J referred to a number of cases decided after Whiley in which contemnors had been sentenced pursuant to the provisions of the Sentencing Act. Jando was dealt with after the commencement of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). Studdert J considered that there was no reason in principle why the considerations that had led the Court of Appeal to hold that the Sentencing Act applied to the sentencing of contemnors should not lead to the application of the Sentencing Procedure Act in such cases. No contrary submission was advanced before me. I proceed upon the basis that in sentencing for the common law offence of contempt it is appropriate to apply the provisions of the Sentencing Procedure Act.

[34]

The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR 1422 (1927) at 1429. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard; see Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333. The procedures of a criminal prosecution must be strictly observed: see Spindler v Balog (1959) 76 WN (NSW) 391 at 393." 31 The factors to be taken into account in punishing for the offence of contempt of court, in the context of a deliberate refusal to give evidence, were enunciated in Registrar of the Court of Appeal v Gilby (unreported) NSWCA, 20 August 1991 as follows at 26 - 29: 1. The objective seriousness of the contempt; 2. Whether the contemnor was aware of the consequences of what he proposed to do; 3. Whether the contempt was committed in the context of serious crime; 4. Whether the contempt was motivated by fear of harm should evidence be given; 5. Whether the contemnor had received a benefit by indicating an intention to give evidence. 32 It is apparent that some of the considerations in Gilby have greater relevance to a case where the refusal occurs in the context of a criminal trial. 33 The contempt in this case is a serious offence in that it involved a conscious defiance of the authority of the Court. I am satisfied that the respondent was aware of the consequences of his refusal. It is apparent that he had received advice and that he chose to take the course that he did. The Parliament has enacted a scheme for the confiscation of the proceeds of criminal activity. An important part of that scheme is the provision for the compulsory examination of persons pursuant to s 12. 34 In Mr Jones' submission the refusal to give evidence at a s 12 examination is to be viewed as a less serious contempt than the refusal to give evidence at a criminal trial. It seems to me that the objective seriousness of a contempt arising out of a refusal to testify must be judged by the circumstances of each case. This is consistent with the observations in Wood v Galea (unreported) NSWSC, 29 February 1996. In that case Hunt CJ at CL reviewed a number of cases involving a deliberate refusal to give evidence. Galea had refused to give evidence before the Royal Commission into the New South Wales Police Service. His Honour, while not categorising the contempt as within the worst class of case, considered that it was a most serious category of contempt. In coming to this view he took into account the purpose for which the Royal Commission had been established and that the Galea's stance was one that seriously frustrated the progress of its investigations. A sentence of two years and three months imprisonment was imposed in that case. I consider the contempt in Galea to have been of a more serious character than the present case.

[43]

45 I turn now to the medical evidence. A report of Dr Thye, the Acting Director of Medical Services, Blacktown Mount Druitt Health, dated 11 December 2002, details the respondent's admission to the Intensive Care Unit at the Blacktown Hospital in June 2002. He was diagnosed as suffering from severe asthma and hypoxia. He required artificial ventilation. He remained in hospital for four days. His condition improved and he was discharged to Long Bay gaol. 46 Dr Peters, of the Prince of Wales Hospital, reported that the respondent had presented to the Emergency Department of that hospital on 3 September 2002 with shortness of breath. The initial diagnosis was infective exacerbation of chronic airway limitation and asthma. After reciting the respondent's history of severe adult onset asthma, Dr Peters expressed the view, based upon the recognised characteristics of patients who are likely to die from the condition, that the respondent's prognosis was a guarded one. 47 In an updated report Dr Colbran stated that: "Mr Field's condition impacts on his incarceration in that he is clearly not able to tolerate the amount of physical exertion that a normal, healthy person of his own age could tolerate. Therefore, he would find it harder to do some of the things that his healthy peers would be able to do. When he suffers an acute exacerbation he does require medical intervention, which is available either within the correctional system, or through referral to an appropriate local hospital." 48 In a report dated 10 February 2003 Associate Professor McKenzie, a specialist in respiratory medicine, expressed the following opinion: "Mr Field has mild to moderate chronic airflow limitation on the basis of severe asthma. His asthma is brittle in the sense that he can have rapid fluctuations in airway function (documented with pulmonary function tests) and one episode of life threatening asthma requiring intubation and artificial ventilation. …. Based on my understanding of the difficulties in providing medical care to prisoners, I would have to agree that Mr Field's care could be compromised by being in jail, compared with living under ordinary circumstances in a city or town with good medical facilities. His situation is probably not much worse than a person with severe asthma living in a remote rural region. Mr Field does have severe, brittle asthma and has already had one life threatening attack. Had his presentation to the Prince of Wales Hospital in June 2002 been delayed by even 15 or 30 minutes the outcome may well have been fatal."

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