Tuesday, December 21, 2010

Contempt of the CCC: CCC v Wallace, and others

The Supreme Court decisions in CCC v Wallace [2010] WASC 390Smith [2010] WASC 396Silvestro [2010] WASC 398, and Allbeury ([2010] WASC 399), delivered orally on the 13th, have been published.

Coverage of the decision can be found on ABC News Online.

The crux of the CCC's complaint was that the four had refused to answer questions. Mr Allbeury was also accused of insulting the Commissioner.

The primary judgment is that of Wallace, where the lawyers raise a number of mostly technical arguments, none of which were accepted. Smith, Silvestro, and Allbeury are shorter judgments incorporating the Wallace decision.

The first argument was that the certificate issued by the CCC to begin the proceedings went "beyond that which is permissible within the scope of s 163(1) of the CCC Act" because it did more than merely state 'the act or omission' that is said to constitute the contempt, taking "the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court". Martin CJ held that, taking this view to the logical conclusion, it would make it impossible to include anything other than a bald description of the conduct alleged to constitute contempt --- it would not even be permissible to include the question asked. Rather, "the proper scope of the certificate will be determined by reference to the scope of the contempt alleged.

Furthermore, even if the certificate was technically irregular, the irregularity did not prejudice the accused, so the irregularity would be waived. 

Secondly, it was argued for the accused that the CCC "failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner". A technical discussion of the Act follows, ultimately concluding that it was not open to a person summoned to appear before the CCC to hold off challenging the validity of extraordinary powers until they are called up for contempt charges --- they would be expected to make that challenge before the CCC first. The "colateral challenge" therefore failed.

The other cases proceeded upon similar lines.

On the less serious end of the spectrum, one of the more humorous submissions made by Mr Allbeury's counsel, regarding the alleged insult of the Commissioner, was dealt with in [14]-[15] of that decision. (Emphasis added)
... [I]n answer to 14 separate questions posed by the Commissioner and counsel assisting, ... Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'.
It is said that I should conclude that that evidence does not constitute a contempt by insulting conduct. The proposition, it is said, is that mere abuse does not of itself amount to contempt of court. It seems to me that the difficulty with that submission is that the course of conduct identified by the certificate and which I have seen depicted in the DVD was not mere abuse; it was an abusive, derogatory and contemptuous response ...

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