Citation: [2001] NSWSC 570
Court: Supreme Court of New South Wales (Common Law Division)
Date: 29 June 2001
Judge(s): Adams J
Background
The plaintiff had previously been summoned to appear before the NSW Crime Commission as part of an ongoing investigation. When he appeared, he refused to take an oath or affirmation and declined to answer two specific questions put to him. There was no reasonable excuse for these refusals.
He was charged with offences under section 18 of the New South Wales Crime Commission Act 1985, convicted, and sentenced to four months' imprisonment on each charge, to be served concurrently. Following that sentence, the Commission issued a further summons requiring him to appear in connection with the same investigation.
The plaintiff anticipated he would be asked the same questions again, and stated unequivocally that he would again refuse to cooperate. He sought a declaration in the Supreme Court that the new summons was of no force and effect, together with consequential relief.
Legal Issues
- Whether the Commission's second summons, directed at the same investigation, was issued for a proper purpose under the New South Wales Crime Commission Act 1985 or was instead designed to subject the plaintiff to further punishment.
- Whether a further prosecution under section 18 for refusing to answer the same questions would constitute double jeopardy in the sense discussed in Regina v Pearce (1998) 103A A Crim R 372.
- Whether the plaintiff's application for a declaration was premature in the circumstances.
Decision
Adams J dismissed the summons. The court found no evidence that the Commission had issued the new summons for any purpose other than the due exercise of its statutory authority. The mere fact that the plaintiff intended to refuse to cooperate again did not, in itself, demonstrate that the summons was issued for an improper purpose.
The court acknowledged that the double jeopardy question, arising from the possibility of a fresh prosecution for refusing to answer the same questions, was capable of some controversy. However, Adams J expressed doubt that such a prosecution would necessarily constitute double jeopardy in the Pearce sense, and in any event found it unnecessary to decide the point.
The reasoning turned significantly on the speculative nature of the plaintiff's claims. The plaintiff might not, in fact, refuse to take an oath or affirmation when the time came. More importantly, it was not certain he would be asked identical questions. Because the anticipated events had not yet occurred, the proceedings for a declaration were premature, and the court declined to intervene.
Orders Made
- The summons was dismissed with costs.
Key Takeaways
- A summons issued by the NSW Crime Commission will not be invalidated merely because a witness has previously refused to cooperate and declares an intention to refuse again; the court requires evidence that the summons was issued for an improper purpose rather than in the due exercise of statutory authority.
- Proceedings seeking a declaration that a Crime Commission summons is of no force and effect may be dismissed as premature where the factual events said to ground the claim have not yet occurred.
- Adams J left open, without deciding, the question of whether prosecuting a witness under section 18 of the New South Wales Crime Commission Act 1985 for refusing to answer questions already asked in a previous appearance would engage double jeopardy principles as discussed in Pearce.
- The mere fact that a Commission investigation may prompt successive summonses does not, without more, establish that the process is oppressive or an abuse of power.
- Uncertainty about what questions will actually be asked at a future hearing is a material factor weighing against pre-emptive declaratory relief.
Legislation and Cases Referenced
Legislation:
- New South Wales Crime Commission Act 1985 (NSW), particularly section 18
Cases:
- Regina v Pearce (1998) 103A A Crim R 372