New South Wales Supreme Court CITATION : POPOVIC v NSW CRIME COMMISSION [2001] NSWSC 570 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 30035/01 HEARING DATE(S) : 26 June 2001 29 June 2001 JUDGMENT DATE : 29 June 2001 Mile Popovic (Plaintiff) PARTIES : v New South Wales Crime Commission (Defendant) JUDGMENT OF : Adams J at 1 COUNSEL : Mr D Wetmore/Mr R Jankowski (Plaintiff) Mr R. J Bromwich (Defendant) SOLICITORS : Mile Popovic C/- Mr D A Wetmore (Barrister) Mr J M Giorgiutti (Defendant) CATCHWORDS : NSW Crime Commission - refusal by witness to be sworn or answer questions - convicted and sentenced under s 18 of the Act - successive summons directed at same investigation - whether oppressive - proceedings for declaration premarature LEGISLATION CITED : New South Wales Crime Commission Act 1985 CASES CITED : Regina v Pearce (1998) 103A A Crim R 372 DECISION : Summons dismissed with costs. Ex tempore - revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 29 JUNE 2001 30035/01 MILE POPOVIC v NEW SOUTH WALES CRIME COMMISSION JUDGMENT - On application of summons seeking declaration; see p 25 1 HIS HONOUR: This is a summons seeking a declaration that process commenced against the plaintiff pursuant to the New South Wales Crime Commission Act 1985 is of no force and effect and consequential relief. It is unnecessary to set out a detailed chronology of events. It is sufficient to say that the plaintiff has, in the past, been the subject of a summons in respect of the inquiry which it is now sought again to question him about. When he came before the Commission he declined to make oath or affirmation and declined to answer two specific questions. He was summonsed for these refusals as offences under s 18 of the Act. The plaintiff had no reasonable excuse. He was convicted and sentenced to four months' imprisonment in relation to each charge to be served concurrently. As I have mentioned, he was summonsed again in relation to the same investigation. It may be fairly anticipated that he will be asked the same questions as before. He will certainly be asked to make a oath or affirmation. He has indicated unequivocally that he will neither make oath nor affirmation nor answer any questions. The plaintiff submits that it follows that the summons is not issued for the purposes of the Act but to subject him to further punishment, since it is known that he will refuse to co-operate. 2 Furthermore, any prosecution of him for so doing would be an abuse of process since the proceedings would be designed to punish him in relation to the same or substantially the same act as that for which he has already served a sentence: see Regina v Pearce (1998) 103A A Crim R 372. 3 Although I am doubtful that, even if I should act upon assumptions about the predicted events, a prosecution for contravening s 18 of the Act. in respect of refusing to answer even the identical questions already asked would place the plaintiff in double jeopardy in the sense referred to in Pearce, the question is capable of some controversy. Fortunately, however, I do not have to decide it. I am satisfied that there is no evidence that the summons in this case is issued except in virtue of the due exercise by the Commission of its authority under the Act. Furthermore, despite his protestations, the plaintiff may or may not decline to make oath or affirmation. Perhaps more significantly, he may or may not be asked the same questions. Even if he were to be asked the same questions, I do not see how a summons issued in the present circumstances suggests that it is not for the proper purposes of the Act, even accepting that it is the plaintiff's intention to decline to answer them. 4 Accordingly the summons must be dismissed with costs. ***************** Last Modified: 07/12/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.