Supreme Court of NSW|1995-10-06|Before: Honourable Justice J, Hon Justice J, Hunt CJ, Dunford J

The Honourable Justice J R T Wood, Royal Commissioner v Charles Joseph Staunton No. 30031/95 [1995] NSWSC 61 (6 October 1995)

COURT IN THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION DUNFORD J HRNG SYDNEY, 4 August 1995 #DATE 4:8:1995 #ADD 6:10:1995 ORDER Application dismissed JUDGE1 DUNFORD J On 1 June 1995 the defendant when called as a witness refused to answer certain questions put to him at the Royal Commission into the New South Wales Police Service. The Royal Commissioner referred the matter to this Court pursuant to s 18(B) Royal Commissions Act 1923, and on 8 June I found the defendant guilty of contempt of the Royal Commission and ordered that he be committed to prison until further order.

Notwithstanding that one of the questions he refused to answer on 1 June was: "Do you have an association with a person known as Bill Bayeh also known as Bill Michael?", he yesterday gave some evidence to the Commission about a relationship he had with the said Bill Bayeh in the past after such matters had already been ventilated in the Commission by other witnesses. But he still refuses to answer the other questions.

He has been in custody now for ten weeks and remains obdurate. He advances the same excuse as before for his refusal, namely, that answering the questions would involve him disclosing information which he had received on a confidential basis from clients of his in the course of his business as a licensed private inquiry agent. I have previously rejected that excuse as a genuinely held reason for his refusal to answer, and I still reject it.

In my judgment of 8 June 1995 at pp, 11 - 12 I rejected the submission that I should then impose a determinate sentence for four reasons. In my view each of those reasons still apply.

Whilst ten weeks is obviously a long time for any person in custody, these matters are relative and I am not satisfied that a longer period will not induce the defendant to change his attitude. Since I rejected the reason he gave for not answering, he has advanced no other reason, and this tends to confirm my view that he is seeking to protect wrong doers, possibly including himself, and possibly including police officers and former police officers. If he is seeking to protect corrupt police or ex police in accordance with some agreement between them or on account of some ill conceived principle of mateship that he should not "dob on his mates", it may well be that, if and when those other police or ex police give evidence about their or his own activities, his resolve to remain silent may weaken and it is, I believe, more likely to weaken if he remains in custody in the meantime.

The third reason I considered on 8 June was the matter of deterrence of others. Today Ms Fullerton has submitted that an indeterminate term should not have been imposed for deterrence purposes alone and that the same object would be achieved by the imposition of a fixed term, and so I should now move to a fixed term for the purposes of deterrence rather than an indeterminate term for the purposes of coercion.

In my view an indeterminate term, besides serving the purposes of coercion, also effectively serves the purposes of general deterrence. I consider that the prospect of an indeterminate term is just as likely, if not more likely, to deter others from taking a similar attitude, depending of course on the length of the alternative fixed term. In addition, the object of coercion remains most important. In this regard I note that last week Hunt CJ at CL committed another witness who refused to answer questions to the Royal Commission to imprisonment for an indefinite time: Hon Justice J R T Wood v Galea (27 July 1995). I respectfully adopt what his Honour said on that occasion as to the appropriateness of an indeterminate term, such reasons being equally applicable here.

As I pointed out in my earlier judgment (pp 12-13) and as Hunt CJ at CL pointed out in Galea's case (pp 8-9) it is necessary for the Court to take a strong attitude in these matters so that the important work of the Royal Commission is not frustrated.

One of the considerations I referred to in my earlier judgment was that there may be a change of heart on the part of the defendant if the persons whom he is refusing to name are in the meantime named to the Commission by others. Although, in the case of the person Bill Bayeh, he was not only named by others but himself gave evidence, the fact that the defendant has since given some evidence relating to that person indicates to me that the evidence of others may yet be relevant in persuading the defendant to change his mind, notwithstanding his present determined attitude as expressed through his counsel.

Like Hunt CJ at CL in Galea's case (p 13), I do not at this stage believe that the defendant's obduracy is of such a nature that it is unlikely that he will change his mind, but I believe that coercive action against him will eventually produce the information sought by the Commissioner, and that the course that I am currently adopting is the only means by which such a result may be obtained. For these reasons the application is dismissed.

On behalf of the plaintiff, an application has been made for costs of today's proceedings. In view of the fact that the matter is before the Court today on the defendant's application, that there has been no significant change in the factual situation since 7 June and that the defendant has failed in his application, I consider it appropriate that the defendant pay the plaintiff's costs of today and I so order.

Commissions Act 1923

The Honourable Justice J R T Wood, Royal Commissioner v Charles Joseph Staunton No. 30031/95 [1995] NSWSC 61

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The Honourable Justice J R T Wood, Royal Commissioner v Charles Joseph Staunton No. 30031/95 [1995] NSWSC 61 (6 October 1995)

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