JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	CORRUPTION AND CRIME COMMISSION -v- SMITH [2010] WASC 396 

CORAM	:	MARTIN CJ 

HEARD	:	13 DECEMBER 2010 

DELIVERED	:	13 DECEMBER 2010 

PUBLISHED	:	21 DECEMBER 2010 

FILE NO/S	:	CIV 2875 of 2010 

BETWEEN	:	CORRUPTION AND CRIME COMMISSION
Applicant
 
AND
 
TROY CRISPIN SMITH
Contemnor 

Catchwords:
Contempt of Corruption and Crime Commission - Section 163 of the Corruption and Crime Commission Act 2003 (WA) - Refusing or failing to be sworn or to make an affirmation - Certificate issued by the Commissioner of the Corruption and Crime Commission - Extraordinary powers finding - Related matter:  Corruption and Crime Commission v Wallace [2010] WASC 390  
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 96, s 160, s 163 
Result:
Contempt has been established
Contemnor guilty of contempt
Sentencing adjourned
Contemnor detained in custody 
Category:    A 

Representation:
Counsel:
Applicant	:	Mr D W L Renton & Ms T Chung
Contemnor	:	Mr S Vandongen SC 
Solicitors:
Applicant	:	Corruption and Crime Commission of Western Australia
Contemnor	:	Alana Padmanabham 

Case(s) referred to in judgment(s):

Corruption and Crime Commission v Wallace [2010] WASC 390

MARTIN CJ:  (This judgment was delivered extemporaneously on 13 December 2010 and has been edited from the transcript.)
1		Mr Troy Crispin Smith is the subject of a motion brought by the Crime and Corruption Commission (the Commission) for an order that he stand committed to a term of imprisonment or be fined for the contempt of the Commission, which is expressed in the following terms.  Namely that Troy Crispin Smith, being served with a summons under s 96 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) requiring him to attend and give evidence, refused or failed to be sworn or to make an affirmation on 18 November 2010, contrary to s 160(1)(a) of the CCC Act, particulars of which are set out in a certificate presented by the Commission to the court pursuant to s 163 of the CCC Act.
2		Because the motion alleges the commission of the offence of contempt of court, it is appropriate that I apply all the general principles that apply to criminal proceedings in this court, including the principle that the burden of proof is at all times upon the prosecutor of the offence, and that the standard of proof that has to be met is the standard of beyond reasonable doubt, that being the highest standard of proof known to the law.
3		The jurisdiction of the court is provided by s 163 of the CCC Act:
163.	Punishment of contempt of Commission
(1)	Where a contempt of the Commission is alleged to have taken place, the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt.
(2)	A certificate presented under subsection (1) is prima facie evidence of the matters certified in it.
(3)	Where a certificate is presented under subsection (1), the Supreme Court has jurisdiction as if the contempt were a contempt of that Court.
4		The certificate attached to the motion certifies that Mr Smith was the subject of a summons which was issued on 16 November 2010 requiring him to attend the Commission on 17 November 2010 (par 1); that Mr Smith was required to give evidence for the purposes of an investigation, the nature of which is identified (par 2), and that Mr Smith attended and reported himself to the Commission on 18 November 2010 and refused to be sworn or to make an affirmation (par 3).  Particulars of his refusal are provided in a table which recounts the course of proceedings when Mr Smith attended.
5		Counsel for Mr Smith submits that the certificate is not a valid certificate within the scope of s 163(1) of the CCC Act and, in particular, on the basis that the matters of fact asserted in the certificate go beyond the permissible scope of the act or omission which can be the subject of the certificate by that subsection.
6		I ruled on a similar submission in Corruption and Crime Commission v Wallace [2010] WASC 390, and the reasons that I have given for rejecting the submission in that case apply with equal force to the submission made in this case.  I therefore do not accept the proposition that there is any invalidity in the certificate which was attached to the motion.
7		It follows that I accept that the certificate enlivens the jurisdiction of the court and provides prima facie evidence of the matters set out within the certificate.  That evidence is augmented by an affidavit of the Commissioner, to which is annexed both the transcript and a DVD of the events that took place.
8		It follows that I find as a fact that Mr Smith was the subject of a summons that was served upon him, that he was required by that summons to attend and give evidence for the purpose of an investigation under the CCC Act, that he attended and reported himself to the Commission but refused to be sworn or to make an oath or affirmation, and those facts are sufficient to make out the complaint of contravention of s 160(1)(a) of the CCC Act.
9		In opposition to the conclusion that those findings of fact should lead to the conclusion that contempt has been made out, counsel for Mr Smith has submitted that the prosecutor has failed to prove a necessary fact, namely the validity of the exceptional powers finding made by the Commission which preceded the issue of the summons directed to Mr Smith.  A similar argument was considered by me in Corruption and Crime Commission v Wallace, and the reasons that I have given for rejecting the argument in that case can be applied with equal force to this case.
10		Accordingly, there is nothing to preclude the conclusion that the facts established by the certificate sustain a finding that Mr Smith is guilty of the contempt alleged against him, and I so find.
11		It is my view that this matter should be adjourned until 21 January 2011 to provide Mr Smith with an opportunity to reconsider his position.  Mr Smith will be remanded in custody until 21 January 2011 when the court will reconvene.