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Supreme Court 1 March 2002

Fehon v Domican

[2002] NSWSC 103

Also reported as 127 A Crim R 592
Public order & justice offences
PROCEDURE HEARING BEFORE NATIONAL CRIME AUTHORITY PROOF OF OFFENCE

Citation: Fehon v Domican [2002] NSWSC 103
Court: Supreme Court of New South Wales (Common Law Division)
Date: 1 March 2002
Judge(s): Studdert J

Background

The defendant was summoned to appear as a witness before the National Crime Authority (NCA) on two occasions: in Perth on 16 September 1999, and in Sydney on 6 December 1999. On both occasions, he declined to take an oath or make an affirmation. At the Sydney hearing, the presiding NCA member directed an authorised person, Mr Flynn, to administer an oath or affirmation to the defendant, who again refused.

The defendant was subsequently charged with an offence under s 30(2)(a) of the National Crime Authority Act 1984, which made it an offence for a witness to refuse or fail, without reasonable excuse, to take an oath or make an affirmation when required to do so under s 28(5) of that Act. The information was heard in the Local Court, where the magistrate dismissed it.

The plaintiff (the informant) appealed to the Supreme Court under s 104 of the Justices Act, arguing that the magistrate had erred in dismissing the charge.

  • Whether the prosecution had proven all elements necessary to establish a contravention of s 30(2)(a) of the National Crime Authority Act 1984.
  • Specifically, whether the prosecution was required to prove that the form of oath or affirmation the defendant was asked to take had been approved by the presiding NCA member, as required by s 28(5)(a).
  • Whether it was sufficient for the prosecution to argue that approval of the form of oath or affirmation was implicit in the presiding member's request to Mr Flynn to administer it.

Decision

Section 28(5)(a) of the Act required that a witness be asked to take an oath or make an affirmation "in a form approved by the member presiding at the hearing." Studdert J held that this was a distinct and essential element of the offence under s 30(2)(a): there could be no relevant refusal or failure by the defendant unless the defendant was made aware of the specific form of oath or affirmation he was being asked to take or make.

The plaintiff argued that Mr Melick's instruction to Mr Flynn to swear or affirm the defendant implicitly established that the form of the oath or affirmation had been pre-approved. Studdert J rejected that submission. Bearing in mind the prosecution's burden of proof, his Honour found it was not necessarily implicit from that request that Mr Flynn was going to administer an oath or affirmation in a form the presiding member had previously approved. The defendant was never informed of the form of any oath or affirmation he was required to take.

His Honour acknowledged that the defendant had made his non-cooperative position clear well before the question of form arose, and that his stated reasons for refusing had nothing to do with the form issue. Nevertheless, the prosecution was required to prove its case, and absent proof that the required form existed and had been approved by Mr Melick, the magistrate was correct to dismiss the information. The appeal was dismissed.

Orders Made

  • Summons dismissed with costs.

Key Takeaways

  • Under s 30(2)(a) of the National Crime Authority Act 1984 (in its pre-2001 form), a prosecution for refusing to take an oath or make an affirmation required proof that the form of the oath or affirmation had been approved by the presiding NCA member, as required by s 28(5)(a).
  • No relevant refusal or failure could occur unless the witness was made aware of the specific form of oath or affirmation they were being asked to take or make.
  • An implicit inference that the presiding member had pre-approved the form of oath, drawn from the fact that they directed an authorised person to administer it, was not sufficient to discharge the prosecution's burden of proof.
  • In dismissing the appeal, the Supreme Court confirmed that a defendant's evident unwillingness to cooperate does not relieve the prosecution of its obligation to prove every element of the offence charged.
  • The 2001 amendments to ss 28 and 30 of the Act (made by the National Crime Authority Legislation Amendment Act No. 135 of 2001) postdated the alleged offences, and the decision turned entirely on the pre-amendment provisions.

Legislation and Cases Referenced

Legislation:
- National Crime Authority Act 1984 (Cth), ss 28, 30
- National Crime Authority Legislation Amendment Act 2001 (Cth), No. 135 of 2001
- Justices Act (NSW), s 104
- Evidence Act (NSW)

Cases: No cases were cited in the provided text of the judgment.