R v Abell

Commonwealth Director of Public Prosecutions for the respondent

[1] McMURDO P: The appellant, Dean Colin Abell, was convicted after a two day trial on 19 September 2007 in the District Court at Cairns of one count of refusing to answer a question at an Australian Crime Commission examination. He was sentenced to 12 months imprisonment with an order directing his release after serving four months upon him giving security by recognisance in the sum of $2,000 on condition that he be of good behaviour for a period of three years. He has appealed against his conviction and applied for leave to appeal against his sentence. Mr Morris QC, who now appears for him, does not abandon any of the grounds in the notices of appeal and application for leave but argued in support of only one ground of appeal against conviction.

[2] The offence was charged as occurring on 23 February 2006 when Mr Abell was examined at the Family Court Building in Cairns under s 24A Australian Crime Commission Act 2002 (Cth) ("the Act"). He appeared in response to a summons issued by the Australian Crime Commission. The examination was conducted by Mr M Boulton, who was appointed an examiner under s 46B(1) the Act on 19 December 2002 for the period from 1 January 2003 until 31 December 2007. The examination was electronically recorded. The recording was tendered together with a transcript of it.

[3] The first ground of appeal was not positively relied on by Mr Morris but nor was it abandoned. It is that the judge erred in failing to rule at the end of the prosecution case that Mr Abell's examination was not an examination within the meaning of the Act because of "the failure of the examiner to afford [Mr Abell] natural justice and procedural fairness, particularly in the case of a statute abrogating the rights of the citizen, so that the proceedings were a nullity". In supporting this contention before the primary judge, Mr Abell's trial barrister relied on two points. The first was that the examiner failed to advise Mr Abell of his right to legal representation. The second was that he failed in his duty to conduct the proceedings fairly because Mr Abell appeared ill during the course of the examination.

[4] The examiner did not advise Mr Abell that he may be represented by a legal practitioner. Section 25A(2) the Act allows for a person giving evidence to be represented by a legal practitioner. Neither the Act nor the common law places any obligation on an examiner to inform a witness of this right. The omission of the examiner to do so did not contravene any statutory or common law provision. It did not amount to a breach of natural justice. In any case, Mr Abell's long criminal history[1] suggests he would have been aware of his right to legal representation.

[5] The primary judge noted that he had viewed the electronic recording of Mr Abell's examination. Mr Abell can be seen to be wiping his face, especially his eyes, early in the proceedings. The examiner asked if there was something wrong with him. He replied, "No. Just a bit of a cold, hey. My eyes are watering." He denied taking any substance. He did not ask for an adjournment because he was feeling unwell. The primary judge observed:

"I do not get the impression that the fact that the defendant may have had a bit of a cold and his eyes were watering resulted in his inability to conduct himself appropriately and to make appropriate judgments during the course of the hearing."

His Honour ultimately concluded that there was no substance to the contention that there had been an absence of procedural fairness in the examination.

[6] The appellant has not shown any reason to doubt the correctness of his Honour's conclusion that there was no breach of natural justice because of these matters, either alone or in combination. This ground of appeal fails.

[7] The appellant's second ground of appeal is that the prosecution:

"... was obliged, in the circumstances of the case, to avoid a reversal of the onus of proof (there being no privilege against self-incrimination if the accused sought to provide a full explanation in the trial) to prove that the question asked was one which was capable of being answered, given the appellant's earlier answer in the purported examination with the result that the trial proceeded on the basis of an assumption of fact (namely that the appellant knew who his suppliers were) which assumption was also made by his Honour in the sentencing proceeding, an assumption which was not open on the evidence."

[8] Mr Morris explained this ground in his written and oral submissions in this way. The jury should have been, but was not, directed that before convicting Mr Abell they had to be satisfied beyond reasonable doubt that he deliberately chose to withhold an answer which he was able to give; there was no evidence on which the jury could have been satisfied of that fact beyond reasonable doubt or at all.

[9] In support of his contention, Mr Morris referred to Lambert v McIntyre; Ex parte Lambert [2] where Hanger CJ, with whom Stable and Matthews JJ, agreed, discussed the meaning of "fails to provide as prescribed a specimen of his breath for analysis" in s 16A(6)(f) Traffic Act 1949-1971 (Qld). Hanger CJ emphasised that the offence was the "failure" not the refusal, noting:

"One may fail to do something without refusing; one may refuse to do something in words and yet do it. The question in this case would seem to be whether a person can be said to have failed to do something when it is now shown that he had an opportunity of doing it. As we are construing a provision which defines a criminal offence, I think the answer must be 'No'."

[10] Central to a discussion of this ground of appeal is the relevant portion of the transcript of the examination. After Mr Abell was sworn, the examiner told him that under the Act he must answer all questions that the examiner required him to answer. Mr Abell asked:

MR BOULTON: You'll commit a serious criminal offence, you will be prosecuted and you can expect to get actual jail time on conviction.

... You're required to answer all questions that I require you to answer, as I've said if you decide not to answer any question I require you to answer you commit a serious criminal offence. You're also required to tell the truth, you may be asked questions that will involve you admitting to criminal offences, you have to answer those questions. If you give false or misleading evidence here you will also commit a serious criminal offence, you will be prosecuted and upon conviction you could expect actual to get jail time. You have an important protection however which is the privilege against self incrimination. If you claim that privilege you can ensure that nothing you say here can be taken out of here and used in evidence against you, in a criminal prosecution or in proceedings seeking to impose a penalty on you. So in return for your truthful evidence you can ensure that nothing you say here can be taken out of here and used in evidence against you in the ways I've explained. Do you understand the nature of that privilege?[3]

MR BOULTON: Well you do that, that's your choice. Council Assisting will probably warn you when you are about to get a question of that sort, and then you can decide then if you wish whether you want to claim the privilege. If you claim it I will extend to you what's known as the blanket immunity meaning that the privilege will cover you to all questions during the course of the Examination whether they come from the Council Assisting or from me. The other thing you should know is that these proceedings are being conducted in private. I will maintain their confidentiality by making what's known as non publication directions at the end of your Examination, meaning that only persons with a legitimate law enforcement interest will ever know that you came here let alone the evidence you've given, alright?" (errors as in the original)

[11] Mr Abell next provided his name and address and answered a number of questions asked of him. He was asked:

"MR McDOUGALL: Um, Mr Abell, this is one of the question that you may wish to think about wanting to claim the privilege before you answer it, um you are user of um amphetamines, speed?

MR ABELL: Well, you know look I'm not going to lie to youse.

MR McDOUGALL: Yeah but you may want to claim the privilege so that your answers can't be used to prosecute you.

MR ABELL: Sure, but like, like everybody you know, we all use.

MR BOULTON: Well, are you listening, I told you at the outset the privilege means if you claim it, the evidence you give here can't be taken out of here and used against you.

MR ABELL: I claim the privilege because, I don't want it sort of leavin' here, you know." (errors as in the original)

[12] He was next asked about his use of amphetamines. He said he probably used a gram a day. The following exchange occurred:

"MR McDOUGALL: Um where do you get your speed from, who's your supplier?

MR ABELL: Just find it you know, it like, there's no real in particular one (1) person you know.

MR McDOUGALL: Yeah, well who are your suppliers then?

MR ABELL: That's something, ... I can't say, you know, like that's something I won't answer ...

MR McDOUGALL: Right, I ask that the witness be required to answer that question?

MR BOULTON: I require you are to answer that question Mr Abell?

MR BOULTON: Alright, so you're refusing to answer that question?

"MR McDOUGALL: Look Mr Abell isn't it the case that you've been buying these products and either giving them or swapping them for speed, giving them to other people?

MR ABELL: Sometimes I've given it to someone nothing comes back you know.

MR ABELL: Oh I don't know someone but, I don't know who, I don't really know who they are.

Mr ABELL: I took them and never took them, they never came back and that was it, so I never did it again, you know.

MR McDOUGALL: I'm asking, I'm asking you to name the person, or people that you have been giving those packs to?

MR ABELL: I just met them and, and just said I got these and off they went you know and they never came back.

MR ABELL: I don't know I haven't seem them since.

Mr McDOUGALL: Well where did you meet this mysterious person or persons?

MR McDOUGALL: You do, you do know this persons name don't you, who you've been giving the packets to?

MR ABELL: No I don't, ... I've only seen him the once, ...

MR McDOUGALL: Yeah, well where did those packets go?

MR BOULTON: Mr Abell I'm gaining the impression that you're again refusing to answer a question which Council may require me to direct you to answer, and you know what the consequences of that will be don't you? Do you require me to direct the witness to answer that question?

MR BOULTON: I require you to answer that question Mr Abell.

MR ABELL: I don't know, only the once I tried to give them to someone and that was it.

MR ABELL: Oh I don't know, I, I honestly don't know their name, some chick she just took off.

MR ABELL: Some chick she just took off and never come back, I wasn't happy about that.

..." (emphasis added) (errors as in the original)

[14] Section 30(2) of the Act relevantly provides:

(2) A person appearing as a witness at an examination before an examiner shall not:

(b) refuse ... to answer a question that he or she is required to answer by the examiner; ...

(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner ... if:

(a) a person appearing as a witness at an examination before an examiner:

(i) answers a question that he or she is required to answer by the examiner; ...

(5) The answer ... is not admissible in evidence against the person in:

(i) in the case of an answer - the falsity of the answer; ...

Offence for contravention of subsection ... (2)...

(6) A person who contravenes subsection ... (2) ... is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years."

[15] The learned primary judge gave the following relevant directions to the jury:

"So you might think then that the critical issue that you need to consider in this case, the one which lead you to your verdict is, are you satisfied beyond reasonable doubt that he refused to answer a question that he was required to answer by the presiding examiner? Are you satisfied beyond reasonable doubt that he refused to answer a question that he was required to answer by the presiding examiner?

There are two matters that arise out of that, members of the jury; you must be satisfied that as a matter of objective fact, from the words used, that he refused to answer a question that he was required to answer by the presiding examiner, and you must be satisfied beyond reasonable doubt that he intended to refuse to answer the question that he was required to answer by the presiding examiner." (errors as in the original)

[16] His Honour referred briefly to the passage of the transcript quoted at [12] of these reasons and the competing contentions of the prosecutor and defence counsel and added:

"That's a matter for you to consider those competing arguments, but I point out to you again Mr Abell does not have to prove that he was intending to convey that he couldn't answer the question because he didn't know the answer. And so in order to be satisfied beyond reasonable doubt, in order to find him guilty, you must be satisfied that you can put aside any suggestion that he was intending to convey that he wouldn't know the answer and you may only convict him if you are satisfied beyond reasonable doubt that he meant to refuse to answer the question."

[17] Mr Morris submitted that the judge's direction can only have misled the jury into supposing that Mr Abell could be found guilty of "refusing" to answer the question without being satisfied that he was capable of answering the question. On the evidence, the jury could not have been satisfied that he was in fact able to answer the question and therefore refused to answer it, rather than indicating by his refusal that he was unable to answer the question. Mr Morris emphasised the portions of the transcript set out at [13] of these reasons in support of that contention.

[18] To establish the offence charged against Mr Abell, the prosecution had to show that he was a person appearing as a witness at an examination before an examiner under the Act and that he refused to answer a question that he was required to answer by the examiner.

[19] It is not contentious that Mr Abell was appearing as a witness at an examination before an examiner at the pertinent time and that the examiner required him to answer the question.[4] The primary judge rightly identified the critical jury question as whether Mr Abell refused to answer the examiner's question.

[20] The terms "refuse" and "answer" are not defined in the Act. They have their ordinary meanings. The verb "refuse" is relevantly defined as "to decline to give ... to express a determination not (to do something): to refuse to discuss this question".[5] The verb "answer" is relevantly defined as: "to make answer; reply; to respond by a word or act ... to make answer to; to reply or respond to: to answer a person or a question. ... to give as an answer".[6]

[21] The prosecution case against Mr Abell was compelling. The unchallenged transcript of the taped examination[7] records Mr Abell's responses to the examiner's question as to who were his suppliers of amphetamine. He said, "That's something I won't answer ..."; "I don't want to answer it". He twice told the examiner he was sure he was refusing to answer the question. He continued to decline to answer after being warned that his refusal constituted a criminal offence. Later in his examination he sometimes gave unpersuasive responses to the effect that he did not know the names of those with whom he dealt.[8] The judge made clear that this element of the charge would not be made out if the jury had a doubt about whether he did not answer the question because he did not know the answer to it. These answers later did not compel the jury to be in doubt about whether he earlier deliberately refused to answer a question to which he knew the answer. The jury were entitled to conclude that he declined to respond to the examiner's questions and in doing so consciously refused to answer a question which he was required to answer by the examiner. This was an offence against s 30(2)(b) of the Act.

[22] The relevant judge's directions to the jury were not inconsistent with Hanger CJ's observations in Lambert v McIntyre. The trial judge did not err in his directions as to the elements of the offence and the critical question in the case. This ground of appeal also fails.

[23] None of the remaining grounds of appeal was actively relied on by Mr Morris. The third ground is that the judge "erred in failing to rule that in the circumstances of the case the question of the subject of the count had already been answered". As best as I can apprehend it, that ground of appeal seems to be subsumed in the preceding discussion on ground 2. I am not persuaded that any judicial error is established by this ground.

[24] The appellant's fourth ground of appeal is that:

"Though the point was not taken at trial, the answers to questions following the alleged refusal to answer should have been excluded from evidence on the basis that they should be regarded as confessions, and as such were not voluntary or alternatively should be excluded in the exercise of a discretion."

[25] As the primary judge was not asked to exclude this evidence, there has been no ruling of law upon the point so that the appeal could only succeed on this ground if a miscarriage of justice has resulted. The appellant has not demonstrated that any miscarriage of justice has resulted from the tendering of the whole of the transcript. Indeed, Mr Morris in the appeal and defence counsel at trial relied on the answers to which objection is now taken as casting doubt upon whether Mr Abell was deliberately refusing to answer the examiner's questions rather than attempting to express that he was unable to answer them correctly as he did not know the answer. This ground of appeal is not made out.

[26] It follows that the appeal against conviction should be dismissed.

[27] I turn now to the application for leave to appeal against sentence. Mr Morris did not have instructions to withdraw this application but, again, he did not positively argue in support of it. Mr Abell contended in his notice of appeal that the primary judge:

"erred in his application of sentencing principles, in particular by referring to an alleged absence of remorse, and to not giving credit for any cooperation with the authorities, concepts which are relevant to the general run of offences but not to one where a citizen's common law rights have been removed and he is acting under compulsion and against his interests."

[28] He also contended the sentence was manifestly excessive.

[29] Mr Abell was 38 at sentence. He had a lengthy, relevant, although reasonably petty, criminal history. It commenced in 2000 when he was fined without conviction for minor drug offences and convicted and fined for street offences. The following month he was convicted and fined for breaching his bail conditions. In July 2001, he was convicted and fined for drug offences. The following month he was convicted and fined for being found on or leaving a police establishment without lawful excuse. In January 2002, he was convicted but not further punished for breaching a domestic violence order. In March 2002, he was convicted and sentenced to 14 days imprisonment for being in a dwelling house without lawful excuse. The following month he was convicted and sentenced to 14 days imprisonment for offences of wilful damage. In July 2002, he was convicted and fined for obstructing a police officer and breach of bail. In January 2003, he was convicted and fined for further street offences. In November that year he was convicted and ordered to serve 40 hours community service for entering a dwelling without consent and entering or being in premises with intent to commit an indictable offence. He was also convicted and fined for possessing dangerous drugs. He was convicted and fined again for possessing dangerous drugs in September 2004. The following year he was convicted and fined for unauthorised dealing with shop goods, wilful damage and street offences. The present offence occurred in February 2006. In June that year he was convicted and fined for breaching bail. He was convicted and fined for a street offence in November 2006. In January 2007 he was placed on 12 months probation for two counts of wilful damage. In April 2007 he was convicted and fined for wilful destruction, an offence which also preceded the 2007 probation order.

[30] The prosecutor at sentence emphasised that private examinations under the Act are an important tool in the intelligence gathering exercise required by the Crime Commission's role. The maximum penalty was five years imprisonment. He placed schedules of comparable sentences before the court. He submitted that they demonstrated that, where (as here) there had been a trial, a sentence of 12 months imprisonment to be released on recognizance after four or five months was an appropriate sentence.

[31] Defence counsel emphasised the following. Mr Abell was not a particularly well educated man. He had a limited understanding of his rights and obligations. Had he had the benefit of legal representation at the examination the offence may not have been committed. Mr Abell should be sentenced at the lower end of the scale as demonstrated by the schedules.

[32] In passing sentence the judge observed that Mr Abell had shown no remorse and that he was not entitled to any credit for cooperation with the authorities. In the circumstances, a sentence of imprisonment was the only appropriate sentence. Mr Abell's refusal to answer questions obstructed proper enquiry into the drug trade. A deterrent penalty had to be imposed.

[33] The judge rightly noted that Mr Abell was not cooperative with the administration of justice and had shown no remorse. He was, both at sentence and when he offended, a mature man. He had a significant criminal history. There was no evidence placed before the court to suggest that he had promising rehabilitative prospects. The Commonwealth legislature, in enacting Div 2 Pt 2 of the Act has impinged upon the common law right to silence by requiring witnesses to answer questions even though the answer may incriminate them. The Act provides some protection to witnesses by providing that the conduct of the hearing is private and by not allowing incriminating answers (where privilege has been claimed) to be used in subsequent criminal proceedings against them (see s 30(4) and (5)). The judge rightly recognised that salutary deterrent penalties must be imposed on those like Mr Abell who refuse to answer questions thereby offending against s 30(2)(b). Otherwise, Div 2 of Pt 2 of the Act would become a toothless paper tiger in the legislature's patent intent 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.

[34] I am unpersuaded that the sentence imposed was manifestly excessive or that in any other way the sentencing judge erred in law exercising the sentencing discretion. The application for leave to appeal against sentence should be refused.

2. Application for leave to appeal against sentence refused.

[35] HOLMES JA: I have read, and agree with, the President's reasons for judgment and orders. Insofar as the appellant's submissions suggested that the Crown had to prove a capacity in the appellant to answer the question, I would simply observe that that was not an element of the offence. It was a jury question whether the appellant's responses amounted to a refusal to answer or merely evinced an incapacity to do so; the learned trial judge's directions dealt appropriately with that question.

[36] MUIR JA: I agree with the reasons and orders proposed by the President.

[1] Set out in these reasons at [29].

[2] [1975] Qd R 349.

[4] See these reasons [12].

[5] Macquarie Dictionary, Federation Edition, 2001.

[7] Set out at [11] of these reasons.

[8] See these reasons [13], especially the answers in dark print.