SUPREME COURT OF QUEENSLAND

CITATION:	O’Connor v OP [2016] QSC 38	
PARTIES:	DANIEL MICHAEL O’CONNOR
(Applicant)
v
OP
(Respondent)	
FILE NO/S:	SC No 480 of 2015	
DIVISION:	Trial	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court at Cairns	
DELIVERED EX-TEMPORE ON:	15 February 2016	
DELIVERED AT:	Cairns	
HEARING DATE:	12 February 2016	
JUDGE:	Henry J	
ORDER:	1.	The respondent be punished for his contempt, by imprisonment for three months.
2.	Liberty to apply on giving of two days notice in writing.
3.	The originating application, the amended originating application, the order of 17 December 2015, the certificate and the affidavit, along with the respective outlines of submissions and any annexures thereto and a transcript of these reasons entitled with the respondent’s actual name, be placed in an envelope which is to be sealed and marked not to be opened without an order of the Supreme Court or any Court which may be sentencing the respondent.
	
CATCHWORDS:	COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – INTERFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW – EXERCISE OF STATUTORY POWER TO OBTAIN INFORMATION – where a notice to attend a hearing was issued to the respondent in relation to a Crime and Corruption Commission major crime investigation – where the respondent indicated he would not  answer questions likely to incriminate his own parent – where the respondent refused to take the oath – whether the respondent committed contempt
CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE BODIES – QUEENSLAND – where the respondent failed to take an oath when required at a hearing – where failing to take an oath is an offence under s 183 of the Crime and Corruption Act 2001 (Qld) – where failing to take an oath can be punished as a contempt under s 199 of the Crime and Corruption Act 2001 (Qld) – whether the respondent should be punished for contempt	
COUNSEL:	S Williams for the Applicant
	
SOLICITORS:	Crime and Corruption Commission for the Applicant
Philip Bovey & Company Lawyers for the Respondent	

HIS HONOUR:   A delegate of the Chairman of the Crime and Corruption Commission (CCC) approved commencement of a major crime investigation on the 24th of August 2015.  The main target of that investigation was MN.  The respondent, OP, is MN’s son.  The criminal activity to be investigated was stipulated by the delegate to be: 

(a) organised crime;
(b) occurring since 1 January 2004;
(c) that involves MN and MN’s associates;  and 
(d) that involves – 

•	an offence of trafficking, supplying, producing and/or otherwise dealing in dangerous drugs (including but not limited to methylamphetamine, cannabis, cocaine and heroin) and/or relevant substances or things, contrary to the Drugs Misuse Act 1986;
•	an offence of trafficking, supplying or possessing weapons, contrary to the Weapons Act 1990;
•	an offence of money-laundering, contrary to the Criminal Proceeds Confiscation Act 2002;
•	an offence against the administration of justice, contrary to part 3 of the Criminal Code;  and 
•	an offence relating to prostitution, contrary to part 4 of the Criminal Code;  and
•	an offence against the person, contrary to part 5 of the Criminal Code;  and
•	an offence relating to property, contrary to part 6 of the Criminal Code.

The hearing into that investigation was authorised on 1 September 2015.  A notice to attend the hearing was subsequently issued to OP, for him to give evidence relating to matters specified to be:

Your knowledge of, and involvement (with MN and others) in –
(i) the trafficking of dangerous drugs;  and 
(ii) the commission of various other criminal offences.

It is at least concerning that this notice was issued at a time after the respondent had already been charged with and was on remand for trafficking in dangerous drugs between 8 August 2014 and 20 November 2014.  OP was therefore before the Courts.  
The Courts accord him rights as part of its process, most relevantly the right not to have to give evidence about the charged alleged conduct.  It would be a potential abuse of the Courts’ process were an agency of the executive such as the CCC to compel him to give evidence about the charged conduct.  

In this instance, that potential abuse is mitigated by s 197(2) of the Crime and Corruption Act 2001, which provides:

The answer, document, thing or statement given or produced is not admissible in evidence against the individual in any civil, criminal or administrative proceeding.

I say “mitigated” rather than “eliminated” because s 197(2) and publication prohibition orders under s 180(3)(a) are about the evidence provided and not about secondary evidence which may be discovered as a consequence of the investigation learning of the evidence provided.  

On the face of the notice it is clear that one of the matters the respondent was being compelled to attend to potentially give evidence about was his knowledge of and involvement in the conduct for which he was already before the Courts.  Nothing said by counsel assisting or the presiding officer at the hearing, when the respondent duly attended before it, suggested that potential would not manifest itself once questioning occurred.  However, this concern is, at least presently, academic, because the respondent when called and required by the presiding officer to take an oath and give sworn evidence refused to take the oath.  Had he been sworn and declined to answer questions asserting the aforementioned concern as his purportedly reasonable excuse for so doing, it would have been necessary to scrutinise this aspect of the matter more closely. 

The formal requirement made of OP to take the oath followed a preliminary exchange during which the process being undertaken and his rights were explained at length, a publication prohibition order was made and a s 197(5) blanket privilege order was made.  

From the outset of the exchange, the respondent indicated respectfully, and even apologetically, that he just could not answer any questions.  He went on to say, “I won’t answer any of your questions.  I understand the punishment and I accept that.”  He said his position would not change even if he was allowed to seek his lawyer’s advice (he explained he had not yet done so, understanding the notice given to him precluded him from discussing the matter with his lawyer).

The publication, prohibition and protection orders were explained and he was asked if they made any difference and this exchange followed:   

OP:	No, sorry.  It doesn’t.  I just can’t do it.  Yeah, I don’t know what else to say but yeah.  Sorry for wasting your time, I guess.  

PO:	All right.  Well, you see, OP, this isn’t a particularly useful result from our point of view…  We’re not here to pursue people for failing to cooperate with us.  We’re involved in an investigation into a significant drug trafficking network and we’re particularly interested to know where this gear is coming from‑ ‑ ‑  

OP:	Couldn’t tell you.  

PO:   	If it’s being manufactured locally‑ ‑ ‑ 

OP:   	What you’re asking me to do is put my [parent] in jail.  I can’t do it.

Counsel assisting, in the course of the ensuing exchange, averted to the influence of what he described as the “conventional wisdom that blood is thicker than water”.  That influence was obvious from what OP had already said, however, OP did go on to say:   

Yeah.  Just – well, I’m gonna obviously spend a fair bit of time in jail as well and I’ve got to be able to hold my head up.  I can’t get around being a dog.

The respondent’s comments, that he did not intend to answer any questions at all, were understood to indicate he would refuse to be sworn.  The consequences of such a refusal were clearly explained to him and he clearly indicated he would not change his mind and knew that he would be punished.  Ultimately, he was formally required to take the oath and he indicated he refused to do so.  

Failing to take an oath when required at such a hearing is an offence under s 183 of the Crime and Corruption Act 2001 but it can also be punished as a contempt under s 199 thereof.  The utility in the latter course – the course being pursued here – is that the respondent may gain his discharge early from prison in the event he purges his contempt.  That he can do by agreeing to take the oath if recalled before the CCC hearing.  I understand from his solicitor’s submissions that he will not purge his contempt but that remains a course open to him.  

It was not contended I ought not on the materials before me find the respondent in contempt.  I am satisfied on the materials that the respondent has committed the contempt of failing to take an oath when required and therefore proceed to punishment.  

This is the respondent’s first contempt, so pursuant to s 199(8B) the minimum punishment must be “imprisonment for the term decided by the court”.  The authorities to which I have been referred suggest penalties for this type of contempt will generally be in the vicinity of six months’ imprisonment, however it ought not be thought that is a rigid range, for the proper penalty plainly depends upon the individual circumstance of each case.  The variable force of aggravating and mitigating features may, of course, result in higher or lower penalties than the commonly occurring punishment to which I have referred.

The respondent was 24 at the time of the contempt and has no previous convictions.  They are factors favouring some leniency in punishment.  A factor supporting the taking of a more than ordinarily lenient approach is that his obviously prime motivation in not wanting to take the oath was that if he did so he believed he would be called on to give answers likely incriminating his own parent.  

Such a close relationship between witness and target will not inevitably call for some material moderation of penalty on account of it.  The seriousness of the target’s conduct and the potential for the witness to assist remain important considerations.  Their degree may sometimes be so critical as to militate against any such moderation.  I do not detect such a critical degree here.  
Drug trafficking is, of course, serious conduct particularly where, as here, it is suspected of having occurred on a significant scale.  However, some moderating perspective on just how critical the respondent truly is to the pursuit of his parent is provided by the fact that his parent has already been charged with trafficking in dangerous drugs.  From this it may be inferred the authorities believe they already have some reliable evidence with which to prosecute and convict his parent.  That is not to say that the respondent cannot provide information which might broaden the scope and seriousness of the case against MN and perhaps presently unknown others.  On the other hand, it can hardly be said the main target of the investigation prompting the hearing will likely escape justice because of the absence of cooperation of the target’s son.  

In the circumstances, I intend to impose a penalty reflecting a material degree of mitigation on account of youth, absence of previous convictions and, most particularly, the fact that the respondent is the son of the investigation’s main target, a relationship which inevitably would give rise to a reluctance to cooperate of the type exhibited here.  

It was submitted I ought discount the sentence even further because the respondent is in custody on remand and but for this he might have applied for bail and might have been granted bail.  There is no evidence before me to elevate such speculation to a compelling inference.  The submission, in effect, relied on a similar rationale that results in discounts of prison sentences on account of time served in part connection with the matter attracting the sentence, which time is not officially declarable under the Penalties and Sentences Act as time already served.  Given the state of the evidence it cannot be said there is any legitimate parallel here.  The reality on the evidence is that it is not this proceeding which caused the respondent to be on remand and he has not been on remand for this proceeding.  

I find the respondent in contempt.  I sentence him to imprisonment for three months for that contempt.  

It remains within his power to take steps to purge his contempt and, to cater for the prospect that I need to hear further submissions because of him purging his contempt, I give liberty to apply for that purpose on the giving of two days’ notice in writing.

I direct the originating application, the certificate and the affidavit, along with the respective outlines of submissions and any annexures thereto and a transcript of these reasons entitled with the respondent’s actual name, be placed in an envelope which is to be sealed and marked not to be opened without an order of the Supreme Court or any Court which may be sentencing the respondent.

(Publication of these reasons entitled as O’Connor v OP is authorised by Henry J)