Fehon v Domican [2002] NSWSC 103

Reported Decision : 127 A Crim R 592

New South Wales Supreme Court

CITATION : Fehon v Domican [2002] NSWSC 103 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12925/01 HEARING DATE(S) : 14 February 2002 JUDGMENT DATE : 1 March 2002

PARTIES : Paul Joseph Fehon (Plaintiff) Thomas Christopher Domican (Defendant) JUDGMENT OF : Studdert J

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Sweeney LCM JUDICIAL OFFICER :

COUNSEL : M. Cinque (Plaintiff) G.J. Goold (Defendant) SOLICITORS : Commonwealth Director of Public Prosecutions (Plaintiff) Gregory J. Goold (Defendant) CATCHWORDS : Procedure - hearing before National Crime Authority - requirement for witness to take oath or make affirmation in form approved by member presiding - prosecution of witness for refusal or failure - proof of offence - National Crime Authority Act, ss 28, 30. Justices Act LEGISLATION CITED : National Crime Authority Act National Crime Authority Legislation Amendment Act Evidence Act DECISION : Summons dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Friday 1 March 2002

12925/01 PAUL JOSEPH FEHON v THOMAS CHRISTOPHER DOMICAN

JUDGMENT 1 HIS HONOUR: This is an appeal under s 104 of the Justices Act following a hearing in the Local Court, at the conclusion of which the learned magistrate dismissed an information charging the defendant, Thomas Christopher Domican, with an offence under s 30 of the National Crime Authority Act, 1984. The appeal raises a nice point as to what is required to constitute a contravention of s 30(2)(a) of that Act. 2 At the outset it is necessary to consider s 28 and s 30 of the National Crime Authority Act in the form in which those provisions stood at the time of the alleged offences, namely as at 6 December 1999. Significant amendments were made to s 28 and tos 30 by the National Crime Authority Legislation Amendment Act No. 135 of 2001. However, prior to that Act coming into force, the relevant provisions were as I record them in the following paragraphs. 3 Section 28 empowered a member of the National Crime Authority to summon witnesses to give evidence at a hearing before the Authority and to produce documents: "(1) A member may summon a person to appear before the Authority at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons." 4 A witness summonsed could be required to give evidence on oath or on affirmation: " (5) The Authority may, at a hearing, take evidence on oath or affirmation and for that purpose: (a) a member may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member presiding at the hearing; and (b) a member or a person who is an authorized person in relation to the Authority, may administer an oath or affirmation to a person so appearing at the hearing." 5 It was an offence for a person summonsed as a witness before the Authority to "refuse" or "fail" to comply with a requirement arising under s 28(5). Section 30(2) made it so: "(2) A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse: (a) when required pursuant to section 28 either to take an oath or make an affirmation---refuse or fail to comply with the requirement… 6 Prior to Act No. 135 of 2001, s 30(11) provided for the following punishment for a refusal or failure: "(11) A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months." 7 It was the informant's contention in the Local Court, and it is the plaintiff's contention in this Court, that the defendant committed an offence by refusing to take an oath or to make an affirmation when called upon to do so in proceedings before the Authority. The defendant's submission before the magistrate and on the hearing of this appeal was that there was no such refusal. 8 The background to the issue that arose in this Court was conveniently summarised in the written submissions of Ms Cinque, counsel for the plaintiff, and Mr Goold, who has appeared for the defendant, has accepted the accuracy of what Ms Cinque has written in this regard. I draw on these submissions to express the setting against which the issue of law that arises is to be considered. 9 On 3 August 1999 the defendant was summonsed to appear before the NCA sitting in Perth on 16 September 1999. The summons was issued by Mr Melick, the member of the NCA presiding on 16 September 1999. The defendant's response to the summons was to appear before the Authority and to present a solicitor's letter. The letter was from a firm purporting to act for him and addressed "To Whom it May Concern". It is unnecessary to dwell upon the content of the letter because Mr Melick took the view that the matters raised in the letter did not provide "good reason" for failing to be sworn or affirmed. No reliance is placed upon the content of that letter by the defendant for the purposes of this appeal. 10 I do, however, record in part the transcript of proceedings in Perth on 16 September 1999 (being part of the material annexed to the affidavit of Gina O'Rourke sworn on 23 January 2002 and filed in support of the summons). The defendant identified himself and informed Mr Melick: "So I'm here and I have nothing to say other than hand this letter up from my legal representatives. …………. MR MELICK: …Well, Mr Domican, the Act provides that you must attend and be sworn or affirmed in proceedings unless you have good reason in refusing to do so. I don't consider the matters set out in that letter constitute such good reasons…"