F v CDG [2017] QSC 111

SUPREME COURT OF QUEENSLAND CITATION: F v CDG [2017] QSC 111 PARTIES: F (applicant) v CDG (respondent) FILE NO/S: No 12035 of 2016 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 February 2017 DELIVERED AT: Brisbane HEARING DATE: 10 February 2017 JUDGE: Justice Boddice ORDER: Delivered ex tempore on 10 February 2017: 1. The contempt is proven beyond reasonable doubt. 2. The respondent is punished for that contempt by imprisonment for eight months. 3. The sentence commences 10 February 2017. CATCHWORDS: COURTS AND JUDGES – CONTEMPT – GENERAL PRINCIPLES – where the applicant applies for the respondent to be punished for contempt pursuant to s 199 of the Crime and Corruption Act 2001 (Qld) – whether the respondent has committed a contempt of the commission – whether the respondent should be punished Crime and Corruption Act 2001 (Qld) s 199 O’Connor v Witness I [2014] QSC 82 COUNSEL: M J Copley QC for the applicant B Mumford for the respondent SOLICITORS: Deputy Official Solicitor for the Crime and Corruption Commission for the applicant Aboriginal and Torres Strait Islander Legal Service for the respondent -- 1 of 4 -- 2 [1] The applicant makes application for the respondent to be punished for contempt, pursuant to section 199 of the Crime and Corruption Act 2001 (Qld). The application is made pursuant to the issuing of a certificate of contempt dated 18 November 2016. [2] The contempt is said to have arisen in the following circumstances. In October 2016, Queensland Police received information that the respondent had, through the use of internet facilities, sent images of a child to others and had procured images of children. [3] The allegations are that he had engaged in discussions with children - there is discussion with an eight year old child - and had procured that child to send indecent images of herself and procured her to perform sexual acts on herself via Skype. The respondent was a holder of a blue card in Queensland at the time of the alleged conduct. [4] Subsequent to the commencement of that investigation, police executed search warrants on the respondent’s office and home. Those warrants required the respondent to provide certain electronic information. The respondent was not cooperative. However, police were able to access some of those devices. [5] That access revealed there were significant contacts via Skype with individuals, many of whom were believed to be children, together with hundreds of conversations and 500 videos of Skype contact. The vast majority of that contact was believed to be with children and involved the respondent encouraging children to undress and perform sexual acts. [6] The respondent was subsequently arrested and charged with a number of offences in relation to the use of a carriage service, the possession of child exploitation material and disobedience of a lawful order. He was remanded in custody and has remained in custody in respect of those offences. [7] Subsequent to his arrest, the applicant commenced an investigation which involved the holding of closed hearings, pursuant to the provision of the Crime and Corruption Act 2001 (Qld). The respondent was required by the applicant to attend a hearing to give evidence relating to his knowledge of specified matters and in particular, user names and passwords in respect of various electronic devices and programs that had been used. The purpose of that inquiry was to ascertain the identity of children who may have been the subject of contact, so that they could be subject to further inquiry by the authorities. [8] The respondent attended the hearing, was affirmed as a witness, was advised of his rights, but refused to answer various relevant questions. The refusal was based on a claim of reasonable excuse, in circumstances where it predominantly related to a right to silence, which the respondent acknowledged he knew he did not have under the Act. [9] The hearing was adjourned to allow the applicant to rule in relation to the grounds for not answering the questions that had been put to the respondent. The hearing resumed days later. The claim was found to not be sustainable and the respondent was again asked to answer questions. The respondent refused to answer those questions. A certificate of contempt was issued by the applicant. [10] The respondent, at this hearing, accepts he did not have a lawful excuse for his refusal to answer those questions. The respondent therefore, does not resist the making of a finding that his refusal to answer the questions constituted a contempt of the commission. Having -- 2 of 4 -- 3 considered the material, I am satisfied the respondent’s refusal to answer the questions was made without lawful excuse. I am satisfied the respondent’s refusal to answer the questions constituted a contempt of the commission. [11] I am satisfied beyond reasonable doubt that the respondent has committed a contempt of the commission. I find the contempt proven. The remaining matter is the question of punishment. [12] The material placed before me indicates that the questioning was designed to ascertain the identity of children in circumstances where there is good reason to be concerned for the welfare of those children and in relation to the activities that may have been engaged in with those children. It is significant that the questioning was not designed to question the respondent about what activities he may have engaged in. It was rather about identifying persons he may have had contact with, who were children. The questioning plainly was designed to ensure that a relevant line of investigation could be undertaken by the authorities. [13] The principal investigating officer, involved in the investigation of the respondent, has provided an affidavit in which it is indicated that the respondent’s refusal to answer these questions has significantly hampered the investigation. I accept that is the case. The respondent was plainly aware by his answers that he did not have a right to silence. I find the contempt in those circumstances a serious contempt. [14] The refusal to answer has impeded a very important aspect of the investigation, which would ultimately lead to the identification of potential young victims who may have been the subject of inappropriate sexual contact. The respondent undertook that refusal to answer, well aware of the consequences of his actions and of the fact that he was not entitled to refuse to answer the questions. [15] Whilst it is the case that the respondent is charged with offences, and the answers he gave may ultimately have resulted in investigations which would identify particular persons and thereby support the counts the respondent is presently facing, I am satisfied that is not, in any way, a justification for the respondent’s conduct. The respondent deliberately has impeded the investigation, well aware that he was not entitled to do so. [16] The consequences are significant. There are potential victims who could be otherwise identified. In those circumstances, I do not see it as a factor which goes in the respondent’s favour, that he refused to answer questions which may have led to a line of inquiry in relation to criminal offences he is presently facing. The matters that must therefore be considered are the questions of the need for deterrence, both general and personal, and the importance of ensuring that denunciation is evidenced in any punishment imposed. [17] The legislation is clear and specific. It has a purpose to ensure that investigations that are properly the subject of commissioned hearings are not impeded by persons wrongfully refusing to answer reasonable and legitimate questions. Where the consequence of the contempt is to actually and significantly impede the investigation, as I find it is here, and it occurred deliberately, there is a need for general deterrence and denunciation to loom large over and above other relevant matters to be considered in the determination of the appropriate penalty, including the respondent’s personal circumstances, general background and past history. -- 3 of 4 -- 4 [18] I do have regard to the fact that the respondent is a man with a good work history and no previous convictions. I have regard to the fact that imprisonment will have a significant impact upon him. Those factors, however, cannot outweigh, in this case, the need for general deterrence and denunciation. [19] Balancing all of the factors and having regard in particular to the matters that must be considered as listed in O’Connor v Witness I [2014] QSC 82, I am satisfied the appropriate punishment for the contempt is eight months’ imprisonment. [20] In coming to that conclusion, I have had regard to the fact that the applicant, by the legislation, will be required to serve all of that time in actual custody. However, the contempt is of such a serious nature that it justifies that punishment. [21] I order: 1. The contempt is proven beyond reasonable doubt. 2. The respondent is punished for that contempt by imprisonment for eight months. [22] I confirm the sentence commences from today, 10 February 2017. -- 4 of 4 --