Callanan v Quibell [2005] QSC 384

State Reporting Bureau IzccffJ asc Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of tile Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 6 December, 2005 Applicant Respondent CAIRNS ..DATE 01/12/2005 JUDGMENT Brisbane No 6659 of 2005 JOHN DAVID CALLANAN and NATHAN TREVOR QUIBELL VARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal iffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 th Fioor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- HIS HONOUR: I refuse your application for an adjournment. 01122005 T9,15/AW M/T CNS2/2005 (Jones J) HIS HONOUR: This is an application under part 7 division 3 of the Uniform Civil Procedure Rules by a Presiding Officer of the Crime and Misconduct Commission seeking punishment for the respondent's contempt of the Commission by reason of his refusal to answer questions when directed to do so by the applicant. The certificate of contempt of a Presiding Officer was signed by the applicant on 25 May 2005. The certificate details that the Commission authorised the holding of hearings concerning a major crime investigation. The details of the crime committed in 1996 and the # investigation are set out in the certificate and need not be repeated here. The respondent was properly brought before the Commission on 9 May 2005. He was to be questioned on the basis that any answer he gave would not be used against him in respect of that crime or in any other crime other than perjury arising out of the giving of his evidence. This condition was properly explained to him and he was also legally represented. The respondent had previously made a voluntary statement on oath to police officers. This had occurred on the 16th of November 2003. Following that he accompanied police officers to the scene of the crime and identified the location of a 2 JUDGMENT -- 2 of 6 -- 01122005 T9, 15/AW M/T CNS2/2005 (Jones J) shallow grave in which human remains were found. In response to questioning on the 9th of May the respondent gave answers basically in accord with the earlier statement. As questioning proceeded it became apparent that counsel assisting the Commission and the Presiding Officer were doubtful about the correctness of that version. There was good reason for this because when questioning resumed on the following day the respondent made material changes to his evidence. As a consequence of this perjury charges have been preferred against him. A hand-up committal proceeding in respect of those charges is listed for the 6th of December 2005. Warnings in respect of the consequences of not answering truthfully questions asked by the counsel assisting or the Presiding Officer were given to the respondent from time to time. A complaint has been made on behalf of the respondent that the warnings and other comments were in some respects intimidating and that in some way they caused the respondent to adopt the course of refusing to answer questions. Other complaints about the conduct of the counsel assisting and Presiding Officer include their badgering the witness and resorting to sarcasm and ridicule. Counsel for the respondent referred me to passages of the transcript to illustrate this point. I am not convicted that there was any improper conduct on the part of either person. 3 JUDGMENT -- 3 of 6 -- 1 The Presiding Officer and counsel assisting were entitled to be sceptical of the evidence given by the respondent particularly as he admitted lying on the preceding day. In proceedings of this kind robust cross-examination of a witness is necessary to achieve the purpose of the inquiry. Referral to the Commission becomes necessary when reliance on ordinary police powers are not adequate to solve the crime. The work of the Commission is an important part of crime investigation and thus important for the protection of society. For this reason the scheme of the act is to compel the answering of questions with or without the protection as was accorded to the respondent in this instance. The certificate identifies the circumstances of the respondent's refusal to answer. His doing so is unjustified and not in any way explained by the reasons put forward on his behalf. The contempt is clearly established and the question is what action needs to be taken in respect of it. In Wood v. Galea (1995) 79 ACR 567 Hunt CJ identified three possible specific purposes of any action being identified as follows :- (1) As retribution for the contempt which has been committed by the respondent, or by way of expiation on his part; (2) To coerce him into answering the questions; and (3) The deterrence of others. This contempt, to my mind, is not a matter for punishment but rather for ensuring the effectiveness of the inquiry. The 01122005 T9, 15/AW M/T CNS2/2005 (Jones J) 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 6 -- foremost solution to the contempt is action which will coerce the respondent to answering, with a secondary purpose of action to deter others from adopting a like course. 01122005 T9, 15/AW M/T CNS2/2005 (Jones J) A similar approach was adopted by Justice Mullins in Callanan v. Schults file number 1442 of 2004. The passage supporting this approach is identified in Australian Meat Industry Employees Union & Ors . V. Mudginberri Station Proprietary Limited (1968) 161 CLR 98 at page 114 where their Honours said : "There will often be elements of futurity in orders of a Court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the Court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae." 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 6 -- The respondent is currently serving a term of imprisonment for another crime. He is due to be released in March of 2006. For this reason there has been no application for bail in respect of the offences of perjury. Between now and when the respondent faces the District Court on charges of perjury, assuming that he will be committed after a hand-up proceeding, there is a prospect that he may be released. There is also a prospect that the Commission may wish to continue its inquiry which is frustrated at the moment by the respondent's refusal to answer. In those circumstances, it seems to me that the proper course is to order that the respondent be imprisoned until his contempt is purged or until further order is made. My orders therefore will be that Nathan Trevor Quibell is found guilty of contempt of the Commission. I order that you stand committed to the Lotus Glen Correctional Centre at Mareeba for contempt until further order. HIS HONOUR: I order that the respondent pay the applicant's costs of and incidental to the application to be assessed on the standard basis. HIS HONOUR: I grant you liberty to apply on giving to the Commission four business days' notice of such application. 01122005 D .1 T16/LVT M/T CNS2/2005 (Jones J) 1 10 20 30 40 50 6 JUDGMENT 60 -- 6 of 6 --