Keeley v Brooking [1979] HCA 28; (1979) 143 CLR 162 (21 June 1979)

HIGH COURT OF AUSTRALIA

KEELEY v. MR. JUSTICE BROOKING [1979] HCA 28; (1979) 143 CLR 162

Contempt of Court

High Court of Australia
Barwick C.J.(1), Stephen(2), Mason(3), Murphy(4) and Aickin(3) JJ.

CATCHWORDS

Contempt of Court - Summary procedure - Evidence - Standard of proof - Proof beyond reasonable doubt - False assertions by witness of inability to remember.

HEARING

Melbourne, 1978, October 4, 5. 1979, June 21. 21:6:1979
APPLICATION for special leave to appeal from the Supreme Court of Victoria.

DECISION

1979, June 21.
The following written judgments were delivered: -
BARWICK C.J. The applicant for special leave was found guilty by the Supreme court and sentenced to imprisonment for six months. The law of Victoria provides no appeal from such a conviction and sentence. This circumstance is put forward by the appellant as a reason for the grant by this Court of special leave to appeal. (at p165)

2. The applicant's contempt, according to the learned judge's reasons for judgment, consisted in what was in substance a refusal to answer questions lawfully put to him during the trial before the court of an accused upon an indictment charging the acceptance by the accused, a police officer, of a bribe and of the solicitation by him of another bribe. The applicant was alleged by the Crown in that trial to have paid the bribe and to have been the object of the solicitation of the other bribe. (at p166)

3. His Honour did not interrupt the trial to deal with the applicant for what his Honour conceived to be his refusal to answer questions, but at the conclusion of the trial, at which incidentally the accused was acquitted, his Honour called upon the applicant to show cause why he should not be dealt with for contempt. His Honour with great care fully and in detail indicated to counsel who appeared for the applicant to show cause, the material which he considered relevant to the charge of contempt. Counsel frankly acknowledged his knowledge and appreciation of that material. (at p166)

4. There is no need for me, in order to dispose of this application, to go into any detail as to the questions put to the applicant and his reaction to them. Generally the relevant parts of the transcript record of the trial consisted of the persistent statement by the applicant that "I can't remember" in answer to questions on a variety of matters, including statements which he had made on earlier occasions, some in court proceedings and on oath. (at p166)

5. His Honour, in clearly expressed reasons, referred to this course of conduct on the part of the applicant as "prevarication", meaning thereby the deliberate evasion of questions by falsely swearing that he had no recollection so as thereby to obstruct the administration of justice. His Honour reminded himself that the undoubted jurisdiction of the Supreme Court summarily to punish for contempt must be exercised with caution, but that a judge should not shrink from exercising that jurisdiction where, being satisfied beyond reasonable doubt of the contempt, it becomes in the particular circumstances his duty to do so. His Honour directed himself that, before finding the applicant guilty of contempt, he must be satisfied beyond reasonable doubt that the applicant was lying when he said that he could not remember and that he so lied in order to evade answering questions lawfully put to him. He said that a witness may be said to refuse to answer questions where he gives purported answers which are not real answers and evinces an intention not to answer the questions. His Honour, in his reasons, said:
"If a witness, having been sworn, expressly refuses to answer questions without lawful justification, he is guilty of contempt. A witness who, having been sworn, deliberately evades questions by some device may similarly be guilty of contempt. One such device is a feigned inability to remember. The witness who deliberately evades questions by falsely swearing that he cannot recall interferes with or obstructs the due administration of justice just as much as the witness who openly and directly refuses to answer those questions. The interference with the administration of justice by the man who swears falsely that he has no recollection is achieved in a subtle and insidious way; but it is no less contempt than the blunt refusal of the honest but recalcitrant witness. The court must have power to punish for contempt the liar who parries questions with a pretended inability to remember. The due administration of justice demands that the court have power to deal itself in a prompt and summary way with conduct of that kind, instead of referring the matter to the Attorney-General in the expectation that the offender will in due course be prosecuted for perjury. Were this not so, the protection afforded by the existence of that species of contempt which consists of the refusal of a witness to answer questions would be much diminished." (at p167)

6. To anticipate my conclusion in this matter, I ought at once to say that his Honour was quite correct in the observations to which I have called attention, including his expression of caution and his self-direction. I fully agree with all that I have quoted or referred to. In my opinion, it correctly expresses the relevant law. (at p167)

7. The applicant does not contest that his Honour could properly have been satisfied beyond reasonable doubt that the applicant was lying when he said "I can't remember" and that, by that device, has evaded answering questions lawfully put to him. But the applicant's counsel submits that it is not enough in order to justify the exercise of the jurisdiction summarily to punish for contempt to be satisfied beyond reasonable doubt of the essential elements of contempt. There are, according to the submission, what counsel called "additional criteria". To be satisfied beyond reasonable doubt is not enough. "It is submitted", said counsel, "that the test required for contempt in those circumstances", i.e. in the case of prevarication, "goes further than simply satisfaction as to falsity", i.e. of the assertion of lack of recollection, "beyond reasonable doubt. It requires certainty on the part of the Judge." Counsel's submission before his Honour, repeated in this Court, was "that the criteria which in fact emerges from Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 is that the court can only be satisfied if the nature of the false answers is not merely false as such but rather manifestly false, absurdly false, palpably false, would appear to be false to any objective bystander who came in and happened to witness the proceedings in question. It is only, in my submission, if there is this extra layer attached to the falsity in question that it is possible for the court to reach this conclusion in respect of the evasion: that there is no other category of merely evasive answers which would enable the court, where an actual answer is given, to reach a conclusion of contempt." Some of these descriptive words were taken from the report of Coward v. Stapleton, others from such American authorities as United States v. Appel (1913) 211 Federal Reporter 495 ; In re Meckley (1943) 50 Federal Supp 274 ; Galyon v. Stutts (1954) 84 SE 2d 822 ; and Second Additional Grand Jury of Kings County v. Cirillo (1963) 12 NY 2d 206 (188 NE 2d 138) . (at p168)

8. It is, in my opinion, quite clear that the Court laid down no such test in Coward's Case. The Judge in Bankruptcy in that case described in his reasons for judgment his reaction to the bankrupt's evidence using some of the quoted terms. This Court found them quite adequate to describe what was in substance a refusal to answer. The Court's problem in that case did not involve consideration of the standard of proof required in such a case as it had before it. The Court was concerned with the question whether contempt could be found although there was not a direct refusal to answer but only what his Honour in this case has called "prevarication". The Court clearly decided that there could be contempt by prevarication. (at p168)

9. It is a fundamentally erroneous approach to the use of authority to treat the quotation by the Court of the judge's description of the events before him as constituting a criterion or test of the requisite standard of proof. Counsel similarly treated several American authorities to which he made reference. The language used by American judges in describing the nature of the evidence with which they had to deal in the cases before them did not constitute tests or criteria of the relevant standard of proof. The material before each court warranted the description given to it by the court in giving judgment. But less dramatic descriptions would have sufficed if the court had confined itself to them and was satisfied beyond all reasonable doubt of the essentials. (at p168)

10. Nothing in the decided cases, properly read and understood, lends any support, in my opinion, to the proposition that in order to warrant a finding of contempt sufficient to ground a summary order for punishment for contempt, it is insufficient that the conclusion that the witness has in substance refused to answer should be drawn beyond all reasonable doubt. Quite apart from what I consider was an unwarranted use of the reported decisions, I have the greatest difficulty in understanding how, in the practical administration of the law, criteria such as were suggested could operate or be used. Adherence to the well understood standard of proof in the trial of criminal offences is quite adequate to protect the individual charges summarily with contempt of court. To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain. (at p169)

11. The Supreme Court concluded in this case beyond all reasonable doubt that the applicant had a recollection of the matters about which he was questioned and that his false assertion that he could not remember them was a refusal by prevarication to answer the questions. This conclusion was enough to warrant the punishment of the applicant for contempt of court. I find nothing excessive or in breach of principle in the extent of the punishment imposed. On the basis of the judge's findings, the applicant's course of conduct was not merely calculated but actually designed to impede the emergence before the court of facts not merely important but, in practical terms, vital to the conduct of the prosecution. Further, the need to emphasize the citizen's duty to co-operate in the administration of justice was apparent. There could scarce be a clearer case for the existence of the undoubted jurisdiction summarily to punish for contempt. (at p169)

12. Before parting with the matter I should say something of two matters which were mentioned during argument, one of them being much discussed. That was the relationship of perjury committed during a trial and contempt of court. It was the nature of the manifestation of contempt in this case which brought this relationship into discussion. Here, the refusal to answer was not a refusal in express terms. What was in substance a refusal could only be held to be such if the assertion "I can't remember" was false: and, of course, accepted as false beyond all reasonable doubt. Thus the perjured assertion made to avoid answering the questions which the applicant could have answered was an ingredient of the contempt. (at p169)

13. False swearing in a court proceeding may in itself be a contempt of the tribunal before which the proceedings are had. But in the great majority of cases, the proof of the falsity of the evidence beyond all reasonable doubt is not available during the proceedings. All that there appears are contrary assertions of another witness or other witnesses. At times, however, documentary evidence admitted by a party or witness to be accurate and genuine is available to demonstrate the falsity of the oral evidence. If it could be concluded beyond all reasonable doubt that the false swearing was with the actual or inevitable intent or consequence of frustrating or obstructing the proceedings, the party or witness could be dealt with for contempt of the tribunal. But that intent or inevitable consequence would differentiate what I might call mere perjury from contempt. The contempt would lie in the obstruction or frustration of the proceedings actually intended or necessarily consequential. (at p170)

14. However, as I have indicated, a case of contempt by false swearing must be relatively rare. In general, such false swearing will result in the party or witness being liable to prosecution for perjury. (at p170)

15. The facts of the present case themselves illustrate the relationship of what I have called mere perjury and contempt in the face of the court. It was the false assertion of inability to recollect as a means of avoiding answering questions put to the applicant which constituted the contempt. He had thus refused to answer and had thereby obstructed or frustrated the trial. Having regard to the nature of the questions not answered and their relationship to the indictment, the obstruction or frustration was obvious. The contempt was not merely in the false swearing but in the obstruction or frustration of the trial by the unavailability of the matters which, the assertion to the contrary being false, the applicant could recollect. (at p170)

16. The other question mentioned during argument was the absence of a right of appeal from a finding of contempt and the infliction of a punishment therefor. (at p170)

17. As was said during the argument, so long ago as 1892 Oswald in his treatise on Contempt (p. 18) called attention to the absence of any such right in England. I thought during the hearing of argument that the continuing absence of any right of appeal warranted legislative consideration. But, on consideration, I realize the question is complex. It must be borne in mind that the power to deal with a party or witness for contempt committed in the face of the court is given to a tribunal as part of its necessary equipment to ensure the adequate conduct of proceedings before it so that questions or disputes can be resolved, both in the public interest as well as in the interest of the parties. If there is contempt by obstruction, it calls for immediate action in order, if possible, to remove the obstruction and facilitate the progress of the proceedings. Thus a direct refusal to answer a lawful question, which the tribunal is satisfied the witness could answer, would warrant a committal of the witness till an answer was forthcoming. It may be difficult in such a situation to contemplate the suspension of the proceedings whilst appellate processes were pursued particularly if the party or witness as the result of the confinement answered the question. Further, if the course followed were not a committal until compliance with an order to answer, but a committal for a specific term, that term might be of relatively short duration. The grant of bail to convicted persons is rare so that, without some express legislative direction, bail may not be granted pending the resolution of an appeal which may not be determined before the expiry of the sentence. If bail were granted, and such an appeal were unsuccessful, perhaps after a lapse of many months, much of the deterrent effect of the imposed punishment may be lost and the public manifestation of the citizen's duty to assist a tribunal in the performance of its proceedings have much less emphasis. Also, demeanour, I should think, may in some cases play a great part in deciding whether or not contempt has been committed. An appellate court may be denied the benefit of this element. (at p171)

18. The notion that there must always be an appeal from a decision of a tribunal is in the vein of the times. There is a lack of trust in the ability of the tribunal of first instance to do justice. But, in a matter so closely associated with the due conduct of proceedings before a tribunal as contempt of court committed in its face, it might well be thought that the interest of the community in the absence of obstruction or frustration of such proceedings outweighed the possible disadvantage to a citizen who was dealt with by a tribunal for such obstruction or frustration. Apparently, legislatures over a long period of time have heretofore taken some such view. Orders for contempt in the face of a court are extremely rare. The jurisdiction to make such an order, as the Supreme Court realized in this case, is to be exercised with great caution. Further, as I have indicated, there are practical problems to be resolved if rights of appeal are created in the area of contempt in the face of the court. No doubt after the intimation made in this case during argument, the legislature will itself consider whether a right of appeal should be given in all, or only in some, cases of contempt in the face of the court: or perhaps not at all. (at p171)

19. In my opinion, the decision of the Supreme Court of Victoria was so patently correct that special leave to appeal should be refused. (at p171)

STEPHEN J. This is an application for special leave to appeal from an order committing the applicant to prison for six months for contempt of court. No criticism is made of the procedure adopted by the learned primary judge. Instead the attack is confined to one narrow aspect: whether for his Honour to have been satisfied beyond reasonable doubt of the applicant's deliberate untruthfulness in repeatedly denying any recollection of matters asked of him was enough to justify a summary committal for contempt of court. It was contended that something more was required, that the applicant's denials must be such as to be seen by all the world to be plainly absurd, palpably false. It was contended that had that approach been adopted there could not properly have been a committal of the applicant. It was also contended that in any event the sentence imposed was excessive. (at p172)

2. I have had the advantage of reading the joint reasons for judgment of Mason and Aickin JJ. and agree with all that they say concerning the way in which Brooking J. approached the question of whether or not the applicant was in contempt. (at p172)

3. What was said by Judge Learned Hand in United States v. Appel (1913) 211 Federal Reporter 495 and in subsequent American authorities upon which the applicant relied, like certain passages which appear in the judgments in Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 , provides no support for the submission that some quite especially high standard of proof was called for in this case. Because the applicant, unwilling to give evidence, chose to feign forgetfulness rather than openly refuse to testify, a seeming paradox ensued, that of a testifying witness punished for his refusal to testify. The paradox resolves itself when it is recognized that there may exist testimony which is in truth no testimony at all but is only given, in the words of Judge Hand, "to fob off inquiry". Such conduct will necessarily involve the witness in perjury but it will be for his contempt and not for his perjury that the witness is dealt with summarily. Because the very nature of this sort of alleged contempt involves the possibility that the testimony may in fact be honest truth, the witness indeed having made "a bona fide effort to answer the questions" (United States v. Appel (1913) 211 Federal Reporter, at p 496 ), great care is called for on the Court's part in satisfying itself that he is in fact lying so as to fob off inquiry; what was said in Coward v. Stapleton (1953) 90 CLR, at p 580 does no more than emphasize this. In the present case the judge gave the issue the requisite care, exemplified in his carefully reasoned judgment, and his Honour's approach to the appropriate standard of proof discloses no ground for interfering either with his Honour's finding or with the sentence imposed. (at p172)

4. Because the applicant's submissions were confined to the one aspect to which I have referred, there being a specific disavowal of any complaint concerning the procedure by which the applicant's contempt was determined, it is inappropriate to canvass in any detail the use of the summary contempt procedure in this case, particularly since the Crown has had no occasion to direct any submissions to this aspect. However in dismissing this appeal I am not to be taken to be in any way dissenting from views that have been expressed in recent years concerning this summary contempt procedure. I have in mind in particular the emphatic views expressed by each of the members of the Court of Appeal in Balogh v. St. Albans Crown Court (1975) QB 73, esp at pp 85-86 per Lord Denning M.R., per Stephenson L.J. and per Lawton L.J. (1975) QB, at pp 87, 89-91, 92-93 and again in Weston v. Central Criminal Court Courts Administrator (1977) QB 32, esp at p 42 per Lord Denning M.R., per Stephenson L.J. (1977) QB, at p 46 and per Bridge L.J. (1977) QB, at p 48 : the judgment of Laskin J. (with which Spence J. agreed and to which he added certain observations of his own) in McKeown v. The Queen (1971) SCR 446 , which, although in dissent, is not on that account the less important for the light it casts on summary contempt procedure: the judgment of Hope J.A. in Attorney-General (N.S.W.) v. Mundey (1972) 2 NSWLR 887, esp at pp 911-912 . Reference may also be made to the article by Z. Cowen "Some Observations on the Law of Criminal Contempt", University of Western Australia Law Review, vol. 7 (1965), p. 1, to the Report of the Committee on Contempt of Court, the Phillimore Committee, Cmnd 5794 (1974) pars. 21 and 34, and to Miller, Contempt of Court (1976), pp. 21-23, 63-65. (at p173)

5. The concern of all this material is with the occasion for the use of summary contempt procedure, involving, as it sometimes may, a denial of many of the principles of natural justice and requiring, as it did in this instance, that a judge should not only be both prosecutor and adjudicator but should also have been witness to the matters to be adjudicated upon. It was the necessary assumption of these several roles, not readily compatible the one with the others, that placed his Honour in the position of adjudicating upon whether the applicant's conduct constituted contempt only after his Honour had first concluded that the applicant "was falsely claiming that he was unable to remember" and should accordingly be required to show cause why he should not be dealt with for contempt. (at p173)

6. His Honour was, of course, zealous in safeguarding such rights as the summary procedure afforded to the applicant. The applicant was represented by counsel, with whom his Honour carefully and in detail defined the conduct which was in question. Affidavit evidence on behalf of the applicant was received and much time was devoted to submissions urged on the applicant's behalf. His Honour delivered a reasoned judgment in which he carefully considered all relevant matters of fact and of law. Nevertheless the position of the applicant remained that of an accused facing a charge initiated by the adjudicator himself and his fate depended upon what his Honour described as "the opportunity of seeking to persuade me that he has not been guilty of contempt". The matter for decision was no simple question of fact, as whether or not he had done some observable physical act while in court, but turned upon an evaluation of the truthfulness of his evidence as to his state of recollection. There was an alternative course open, that of having the applicant face a charge of perjury, to be tried before judge and jury. There was no imperative need for instant punishment, as was shown by the six weeks or so which elapsed between the respondent being required to show cause and the show cause hearing. (at p174)

7. It has been of just such considerations as these that the authorities to which I have referred have spoken in concluding that summary procedure for contempt not only should be employed most sparingly but should rarely be resorted to except in those exceptional cases where the conduct is such that "it cannot wait to be punished" because it is "urgent and imperative to act immediately" to preserve the integrity of "a trial in progress or about to start". (at p174)

8. Having regard to the basis upon which this application was initiated and argued, the proper course is, I think, to grant special leave but dismiss the appeal. (at p174)

MASON AND AICKIN JJ. The applicant in this case seeks special leave to appeal against an order made by Brooking J. in the Supreme Court of Victoria committing the applicant to six months' imprisonment for contempt of court. (at p174)

2. Both parties to the application have proceeded upon the view that no appeal from the order lay to the Full Court of the Supreme Court. They may well be correct. Certainly, an appeal to the Full Court under the Crimes Act 1958 (Vict.) can only be made by a person convicted on indictment. And there is considerable support for the view that appeals to the Full Court from an order made by a single judge of the Supreme Court under the Supreme Court Act 1958 (Vict.) are confined by s. 42 of that Act to those relating to "civil or mixed" matters, a description which does not comprehend a matter of criminal contempt arising out of the conduct of a criminal trial: see In re Thompson (1893) 19 VLR 286 ; In re Glassford; Ex parte Ferntree Gully and Gembrook Extension Trust (1902) 27 VLR 584, at p 586 ; La Trobe University v. Robinson and Pola (1973) VR 682, at p 688 . In the absence of argument upon the question, we shall merely assume, without deciding, that the Full Court of the Supreme Court lacks jurisdiction to hear the appeal, and it is upon that footing that we approach the determination of the present application. (at p175)

3. The circumstances resulting in the applicant's conviction for contempt may be briefly stated. The applicant was called as a witness by the Crown at the trial at one Gaudion, a police officer, charged on four counts relating to Gaudion's alleged acceptance of a bribe in January 1974 and his solicitation of another in October 1974. It was alleged that the applicant paid the first bribe and that Gaudion urged him to pay the second bribe. In committal proceedings against Gaudion in December 1975, the applicant had given evidence which substantiated the charges. However, at the subsequent trial held before Brooking J. the applicant, when called as a witness, repeatedly professed in evidence that he was unable to remember, either in detail or at all, his evidence in the committal proceedings and the events to which that evidence related. (at p175)

4. It was with respect to this asserted inability to remember that the learned trial judge eventually directed that, at the conclusion of the trial, the applicant show cause why he should not be dealt with for contempt of court. Accordingly, on 8th May 1978 the applicant, represented by counsel, appeared before his Honour to show cause. The case which the applicant was required to meet, and which was elaborately detailed by his Honour at the outset of the proceedings, was in essence that the applicant on numerous occasions in the course of his evidence at the trial "did not give . . . and did not make any serious attempt to give what could properly be called an answer to the question". After considering the submissions advanced on behalf of the applicant, the learned judge on 9th May 1978 convicted the applicant of contempt. (at p175)

5. His Honour held the applicant guilty of contempt on the ground that the applicant's conduct in the witness box at the trial had been tantamount to a refusal to answer questions. His Honour relied upon the decision of this Court in Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 as authority for the proposition that "a witness may be said to refuse to answer questions where he gives purported answers which are not real answers and evinces an intention not to answer the questions". Thus, the question which arose in the present case, according to his Honour, and which he went on to answer in the affirmative, was whether he was satisfied beyond reasonable doubt that the applicant had been guilty of "prevarication", a term employed by his Honour to denote "the conduct of a witness who deliberately evades questions by falsely swearing that he has no recollection". (at p176)

6. Before this Court, the applicant's counsel submitted that the judge applied incorrect criteria to the applicant's evidence in determining whether he was guilty of contempt. The submission was, in substance, that a judge should not treat a witness' purported answer as a refusal to answer and hence as a contempt of court unless the answer could be characterized as "plainly absurd" or "palpably false", such that an objective bystander could be left in no possible doubt that the witness was trifling with the court. In support of this submission, counsel relied upon Coward v. Stapleton and certain American decisions. (at p176)

7. At times the case presented for the applicant seemed to confuse the requisite standard of proof with the relevant legal principles to be applied. It is clear that the degree of satisfaction required before there can be a conviction for contempt of court is proof beyond a reasonable doubt. Anything less would be inappropriate to a finding of criminal contempt. But there is no basis for saying that some higher standard of proof can and should be employed in a case of contempt. The law acknowledges no higher standard of proof than proof beyond a reasonable doubt and, indeed, it is the standard which the law prescribes in criminal cases. No doubt a judge should be cautious in finding that an offence has been committed, but if there is satisfaction beyond a reasonable doubt that the relevant criteria defining the offence, however stringent, have in fact been fulfilled, no more is required. We do not regard the decision or the observations in United States v. Appel (1913) 211 Federal Reporter 495 as supporting a contrary view, despite Judge Learned Hand's statement, "If the witness' conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court" (1913) 11 Federal Reporter, at p 495 . It is accepted that in the United States the onus in contempt cases involving false answers given with the intention of refusing to answer questions is proof beyond reasonable doubt (Richardson v. United States (1959) 273 Federal Reporter 2d 144, at p 149 ; In re Meckley (1943) 137 Federal Reporter 2d 310 ). (at p176)

8. The issue that arose in relation to the applicant's evidence was whether the applicant had in effect refused to answer questions at the trial. The approach to be taken to such an issue was considered by this Court in Coward v. Stapleton. In that case the appellant was a bankrupt who in his public examination gave answers of which a substantial number represented, in the opinion of the Federal Court of Bankruptcy, "a shuffling and a fantastic attempt to conceal the truth" about his financial dealings. The Court thereupon ordered that the bankrupt be committed for contempt of court upon the basis that he had refused to answer questions. On appeal this Court remarked that "the order must mean that the learned judge considered that some of (the) purported answers not only were untrue but were so plainly absurd as to convey an intention not to give any real answers to the questions to which they related". It was in this context that the Court (Williams A.C.J., Kitto and Taylor JJ.) went on to make the following comments (1953) 90 CLR, at pp 578-579 :
"It is only in a strictly limited class of cases that a witness can properly be convicted of refusing to answer a question which he has purported to answer. A disbelief on the part of the court in the truth of the purported answer is not, without more, a sufficient foundation for such a conviction. The words used, considered in their setting and in the light of the demeanour of the witness, must show that in fact the witness is declining to make any reply which can be properly called an answer to the question. There must be a manifestation in some form of an intention on the part of the witness not to give a real answer. It is essential not to lose sight of the sharp distinction that exists between a false answer and no answer at all. Of course a purported answer may be so palpably false as to indicate that the witness is merely fobbing off the question. His attitude in the box may show that he is simply trifling with the court and is making no serious attempt to give an answer that is worth calling an answer. In such cases it may well be right to say that the witness refuses to answer the question, but it cannot be too clearly recognized that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt. Such a committal can be justified only by a specific finding of an evinced intention to leave a question or questions unanswered, or by a finding of contempt in some other defined respect."
In the event, the appeal was upheld upon the ground that the bankrupt had not been afforded a reasonable opportunity of being heard in his own defence. On this question of procedure, the Court observed (1953) 90 CLR, at p 580 :
"While it is clear enough that a refusal to answer may be inferred from the giving of what purports to be an answer, the power to commit summarily for a refusal so inferred is a power attended by obvious dangers, and extreme caution is required in its exercise. . . . the issue whether statements offered as answers not only are false but imply a refusal to answer may well depend upon considerations of degree, which may strike different minds in different ways. The court, especially when it has itself preferred the charge, must be alert to see that it withholds judgment on the issue until it has considered everything which the witness may fairly wish to urge in his defence." (at p178)

9. The judgment in Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 stipulates the circumstances in which a court will be justified in concluding that a witness has been guilty of refusing to answer questions and thus of contempt of court where the witness has, in form, given answers to the questions put to him. What is required is "an evinced intention to leave a question or questions unanswered". We do not read the judgment as saying that such an intention is established only when the purported answers can be described as "plainly absurd" or "palpably false". Indeed, it is clear that these expressions were merely employed by the Court to characterize the evidence of the appellant in that case. What does emerge as a general proposition from Coward v. Stapleton (1953) 90 CLR, at p 578 is that "there must be a manifestation in some form of an intention on the part of the witness not to give a real answer". And as the Court observed, the manifestation of that intention may "depend upon considerations of degree, which may strike different minds in different ways". It is scarcely necessary to make the point that there is a difference between the case such as Coward v. Stapleton, in which the witness gives a false account in answer to questions, and the case here, where the witness persistently asserts in relation to a number of transactions and events that he cannot recollect them when there is every reason for thinking that he would recall them. In the first case a finding that the witness is not telling the truth does not of itself show that he is refusing to answer. In the second case there are stronger grounds for concluding that the witness is not only giving false answers but is refusing to answer the questions put to him. In such a case a finding that the witness is not telling the truth leads inevitably to the further conclusion that he is refusing to answer, a finding that takes the case across the borderline that separates mere perjury from contempt. Deliberate falsehoods do not obstruct the administration of justice to the same extent as refusals to answer questions: cf. In re Michael (1945) 326 US 224 (90 Law Ed 30) which turned on the application of statutory provisions designed to limit the exercise of the contempt power. Refusals to answer questions deny to the court evidence which is required for the purposes of the judicial process. (at p179)

10. In our opinion the judgment in Coward v. Stapleton correctly states the law. The principle which it enunciates is in conformity with the approach which has been taken in the United States. There it has been acknowledged that, although false swearing constitutes perjury, if it is apparent from the false testimony that there is a refusal to give information, then there is an obstruction of the administration of justice which is punishable as a contempt (Collins v. United States (1959) 269 Federal Reporter 2d 745, at pp 749-750 ). Testimony false and evasive on its face is the equivalent of refusing to testify at all (Richardson v. United States; Ex parte Hudgings [1919] USSC 104; (1919) 249 US 378, at pp 382-384 [1919] USSC 104; (63 Law Ed 656, at pp 658-659) ). (at p179)

11. It follows that the learned judge in the present case correctly applied the principle enunciated in Coward v. Stapleton when he held that "a witness is guilty of contempt if by his false assertion of inability to remember he deliberately evades questions and so obstructs the administration of justice". And his Honour's specific finding was that "on numerous occasions (the applicant) has sworn falsely that he cannot remember, and has done so by way of deliberately evading the question". On our reading of the transcript of the applicant's evidence his Honour was amply justified in making a finding of contempt. The applicant, in our opinion, persisted in a course of conduct designed to evade answers to questions put to him and thereby to obstruct the trial, conduct which fully justified a sentence of six months' imprisonment for contempt of court. (at p179)

12. We would grant special leave to appeal and dismiss the appeal. (at p179)

MURPHY J. Mr. Keeley applies for special leave to appeal from a sentence to six months' imprisonment for criminal contempt by order of the Supreme Court of Victoria (Brooking J.) on 9th May 1978. (at p179)

2. During March, April and May 1978, Mr. Keeley had been a prosecution witness in the trial of a police officer on an indictment charging bribery, incitement to bribery, solicitation of a secret commission and misconduct in public office. The jury returned a verdict of not guilty. He gave evidence on 20th, 21st and 22nd March 1978 stating on numerous occasions that he was unable to remember various events in detail or at all. In particular, he stated his inability to remember (a) what he had said at the first committal proceeding against the police officer in December 1975 when he had given evidence about his payment of a bribe in January 1974 and the police officer's solicitation of another in October 1974, and (b) what had in fact happened on the occasions in question in 1974. Brooking J. declared him a hostile witness early in the course of his evidence, having formed the opinion that he was not willing to tell the truth; he repeatedly told him that he was not telling the truth and warned him to bear the matter of perjury in mind with regard to the evidence he was giving; he later directed Mr. Keeley on the nature of contempt, warning him that he might be dealt with for contempt, and, after further evidence, directed him to show cause why he should not be dealt with for contempt in refusing to answer. On 21st March 1978, the judge stated that contempt proceedings would take place at the conclusion of the police officer's trial. Mr. Keeley was tried summarily on 8th May 1978. (at p180)

3. The charge was based on Mr. Keeley's answers, "I can't remember" or "I don't remember", to numerous questions. He did not in terms refuse to answer questions. Brooking J., in explaining the charge, stated:
"I do not for a moment suggest that this witness was lying every time he said, 'I don't remember'. Obviously he on occasions could not be expected to remember whether he swore this particular thing three years earlier . . .
. . . I should also, I think, refer to other passages in the transcript which might be regarded as examples of evasions, other than an evasion by answering a question 'I can't remember' or in a similar way. I refer to them not because I am asking that Mr. Keeley show cause why he should not be dealt with for contempt in respect of those evasions but because evasions may well throw light on whether other answers - ' I don't remember' answers - were genuine answers or themselves a form of evasion. I think I should indicate not only the pages here but the possible evasion, as this is a less obvious matter . . ."
and said in his judgment:
"A witness who, having been sworn, deliberately evades questions by some device may similarly be guilty of contempt. One such device is a feigned inability to remember. The witness who deliberately evades questions by falsely swearing that he cannot recall interferes with or obstructs the due administration of justice just as much as the witness who openly and directly refuses to answer those questions. The interference with the administration of justice by the man who swears falsely that he has no recollection is achieved in a subtle and insidious way; but it is no less contempt than the blunt refusal of the honest but recalcitrant witness. The Court must have power to punish for contempt the liar who parries questions with a pretended inability to remember. The due administration of justice demands that the Court have power to deal itself in a prompt and summary way with conduct of that kind, instead of referring the matter to the Attorney-General in the expectation that the offender will in due course be prosecuted for perjury. Were this not so, the protection afforded by the existence of that species of contempt which consists of the refusal of a witness to answer questions would be much diminished. . . . Mere perjury is not, it seems, contempt (Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 ); but a witness is guilty of contempt if by his false assertion of inability to remember he deliberately evades questions and so obstructs the administration of justice. . . .
I shall use the expression 'prevarication' to describe the conduct of a witness who deliberately evades questions by falsely swearing that he has no recollection - cf. Morriss v. Withers (1954) VLR 100, at p 103 . . . .
. . . I am satisfied beyond reasonable doubt that Keeley has been guilty of prevarication in the sense in which I have defined that word. I am satisfied that on numerous occasions he has sworn falsely that he cannot remember, and has done so by way of deliberately evading the question. . . .
In forming my opinion that Keeley has prevaricated, I have had regard to his demeanour, by which I was most unfavourably impressed, and to what I regard as a considerable number of attempts on his part to evade questions otherwise than by the use of the device of feigned inability to remember. I emphasise that I am using those attempts to evade questions not as themselves constituting contempt, as to which I express no opinion, but as material which I may have regard to in deciding whether, when he claims to be unable to remember, Keeley is being truthful or is, on the other hand, lying in an attempt to evade the question.
I discussed most of the possible attempts at evasion with counsel yesterday. In some few cases I am not satisfied that there was an attempt to evade the question, but in the great majority of cases I am satisfied that there was such an attempt. I have also had regard to other evidence bearing on Keeley's recollection of events.
I am satisfied that, in addition to the specific answers that I have already listed, Keeley did on a number of occasions give an answer which stated or implied that he could not remember, for example, on some occasions when he was asked about his evidence given on a former occasion, and that he gave that answer without directing his mind to the question whether he could recollect the matter concerning which he was asked, in that he was adopting the deliberate policy of fending off almost all questions by asserting that he could not remember. . . ." (at p181)

4. The only evidence in Mr. Keeley's defence consisted of four affidavits by medical practitioners to the effect that Mr. Keeley's memory and concentration were impaired. One expressed the opinion that he was suffering "an acute anxiety state" which would make him "a defensive witness"; a second, that he was suffering fluctuating anxiety, sometimes severe repression of unpleasant memories and that there was a reasonable possibility of anxiety having impaired his memory; a third, that the majority of his symptoms were genuine; the fourth, that depression irritability was likely to impair his memory. The substance was that his failure to recollect events of four years previously was explicable by his condition. The judge rejected his evidence and said:
"My own assessment of Keeley is that he is a sly and thoroughly untruthful person, well capable of misleading members of the medical profession for his own purposes."
The judge formed the opinion on his experience of Mr. Keeley as a witness at the police officer's trial, and by reference to extrinsic evidence, a tape recording. (at p182)

5. If special leave is necessary for an appeal (see In re Thompson (1893) 19 VLR 286 ; La Trobe University v. Robinson and Pola (1973) VR 682 ) it should be granted in order to consider the questions of standard of proof and the distinction between perjury and contempt in refusing to answer. (at p182)

6. (1) Onus of proof. The judge must be satisfied beyond reasonable doubt that the person charged is guilty of contempt (see R. v. Fletcher [1935] HCA 1; (1935) 52 CLR 248 ). Brooking J. applied this standard. (at p182)

7. (2) The distinction between perjury and contempt. In Coward v. Stapleton (1953) 90 CLR, at pp 578-579 , the Court stated:
"It is only in a strictly limited class of cases that a witness can properly be convicted of refusing to answer a question which he has purported to answer. A disbelief on the part of the court in the truth of the purported answer is not, without more, a sufficient foundation for such a conviction. The words used, considered in their setting and in the light of the demeanour of the witness, must show that in fact the witness is declining to make any reply which can be properly called an answer to the question. There must be a manifestation in some form of an intention on the part of the witness not to give a real answer. It is essential not to lose sight of the sharp distinction that exists between a false answer and no answer at all. Of course a purported answer may be so palpably false as to indicate that the witness is merely fobbing off the question. His attitude in the box may show that he is simply trifling with the court and is making no serious attempt to give an answer that is worth calling an answer. In such cases it may well be right to say that the witness refuses to answer the question, but it cannot be too clearly recognized that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt. Such a committal can be justified only by a specific finding of an evinced intention to leave a question or questions unanswered, or by a finding of contempt in some other defined respect." (at p183)

8. The term, "refusing to answer", means what it says, that is, saying nothing or saying something which is not a real answer. A non-responsive answer, for example, reciting a nursery rhyme, the days of the week, or a fantastic tale, may constitute a refusal to answer. Plainly absurd answers do not in fact amount to answers and, therefore, do not amount to perjury. In my opinion, contempt in refusing to answer is committed only where perjury is not committed. I use the term, "perjury", to include false swearing and false evidence not on oath. Strictly, contempt in refusing to answer and perjury are mutually exclusive. Where the witness purports to give an answer, the difference between contempt in refusing to give an answer and perjury is that for perjury it is necessary that the answer be demonstrably false, but for contempt, it is necessary that the answer be so obviously false that it is not a real answer. (at p183)

9. Perjury may amount to contempt, as giving a truthful answer may amount to contempt, but this is not the species of contempt (refusal to answer) with which we are concerned. Perjury is based on the falsity of a real answer, not on words which do not amount to a real answer. If an answer is real but obviously false, it may constitute contempt but not that species of contempt which is refusing to answer. Where a purported answer is given, contempt in refusing to answer requires that the words be so obviously, palpably or patently absurd as not to amount to a real answer. The principal cases do not always treat perjury and contempt consisting in refusal to answer as mutually exclusive, but they insist that the falsity or evasion must be obvious from the answer itself. The test is expressed in different words, "palpable", "absurd", "transparent", "obvious", "clear and open", "patent", "apparent from the face of the record itself", "manifest", "evinced"; they all express the quality of obviousness. (at p183)

10. In United States v. Appel (1913) 211 Federal Reporter, at pp 495-496 , Judge Learned Hand said:
". . . It is indeed impossible logically to distinguish between the case of a downright refusal to testify and that of evasion by obvious subterfuge and mere formal compliance.
The rule, I think, ought to be this: If the witness' conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court. That conduct is, of course, beyond question when he flatly refuses to answer, but it may appear in other ways. A court, like any one else who is in earnest, ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test. For instance, it could not be enough for a witness to say that he did not remember where he had slept the night before, if he was sane and sober, or that he could not tell whether he had been married more than a week. If a court is to have any power at all to compel an answer, it must surely have power to compel an answer which is not given to fob off inquiry. Nevertheless, this power must not be used to punish perjury, and the only proper test is whether on its mere face, and without inquiry collaterally, the testimony is not a bona fide effort to answer the questions at all."
Appel (1913) 211 Federal Reporter 495 was approved by the United States Supreme Court in Ex parte Hudgings [1919] USSC 104; (1919) 249 US 378 (63 Law Ed 656) . (at p184)

11. Again in Galyon v. Stutts (1954) 84 SE 2d 822, at p 823 the Court held that "testimony which is obviously false or evasive is equivalent to refusal to testify . . ." (at p184)

12. In re Meckley (1943) 50 Federal Supp, at p 275 , the court held there was contempt where the evidence showed: "a clear and open wilful disregard for the authority of this Court" in giving "various conflicting and obviously false answers" and "the defendant's frequent repetition of the phrase 'I don't remember' as to matters which he quite obviously could not have forgotten". (at p184)

13. Again, in Hegelaw v. State (1927) 155 NE 620, at p 621 the Ohio Court of Appeals considered that:
"the falsity of the witness' testimony, given in open court, must be a matter of judicial knowledge, not merely of opinion. In other words, it must be a patent falsehood upon which there can be no difference of opinion. If the alleged false statement is merely a matter of the court's opinion, as distinguished from its knowledge, contempt proceedings will not lie." (at p184)

14. In Collins v. United States (1959) 269 Federal Reporter 2d 745, at p 746 the Court held that:
"the test is not whether testimony was perjurious or false but whether without aid of extrinsic evidence testimony is so plainly inconsistent, so manifestly contradictory, and so conspicuously unbelievable as to make it apparent from face of record itself that witness had deliberately concealed the truth and has given answers which are replies in form only and which, in substance, are as useless as a complete refusal."
(See also In re Michael (1945) 326 US 224 (90 Law Ed 30) ). (at p185)

15. In People; Ex rel. Valenti v. McCloskey (1959) 6 NY 2d 390 the Supreme Court of New York affirmed a conviction for contempt because
"the answers were on their face not only false but so clearly evasive and obstructive as to amount to a refusal to answer at all and so were contemptuous and contumacious as a matter of law." (1959) 6 NY 2d, at p 406 (160 NE 2d, at pp 455-456) . (at p185)

16. The trial judge found the applicant guilty of prevarication in the sense he defined as "the conduct of a witness who deliberately evades questions by falsely swearing that he has no recollection". That conclusion is not sufficient to establish contempt in refusing to answer. To constitute such contempt, the falsity or absurdity of the answer must be so obvious, palpable or patent that it does not amount to a real answer. However, Brooking J. considered it was sufficient if the refusal to answer "is achieved in a subtle and insidious way", a description which is almost the opposite of obvious, palpable or patent. In order to establish the refusal, consideration was required not only of the answers in question but of depositions and proceedings in earlier cases and a Royal Commission; in short, it required "inquiry collaterally" and "aid of extrinsic evidence". The answers were not false or absurd on their face. That is understandable; only rarely would expressions of failure to remember events and evidence given years before be regarded as false or absurd on their face. The fact that other "evasions" might well "throw light" on whether the "I don't remember" answers were genuine or themselves a form of evasion shows that the element of obviousness was absent. If light needed to be thrown on the answers, then these were not the obvious affront to the court which constitutes contempt, and particularly contempt in refusing to answer. Subtle evasion in giving answers which, on collateral inquiry, may be demonstrated to be false, amounts to perjury; but it does not have that quality of obviousness which is necessary to establish contempt in refusing to answer. (at p185)

17. A special danger in blurring the distinction between perjury and contempt is that on a charge of perjury, the accused is entitled to all the procedural protections of a trial on indictment; summary trial by a judge, who regards his court as contemned, deprives the accused of these protections. (at p186)

18. Summary trial for contempt, conducted by the judge who presided over the proceedings at which the contempt is alleged to have been committed, is dangerous to the administration of justice; the judge assumes the roles of prosecutor, witness and jury. In an adversary system such as ours, the judge becomes the adversary of the accused. (at p186)

19. In Coward v. Stapleton, the Court said (1953) 90 CLR, at p 580 :
"While it is clear enough that a refusal to answer may be inferred from the giving of what purports to be an answer, the power to commit summarily for a refusal so inferred is a power attended by obvious dangers, and extreme caution is required in its exercise. Not only does the charge place the liberty of the individual in jeopardy in proceedings of a summary character which do not surround him with all the safeguards of a jury trial; but the issue whether statements offered as answers not only are false but imply a refusal to answer may well depend upon considerations of degree, which may strike different minds in different ways." (at p186)

20. A difficulty inherent in criminal contempt in refusing to answer is that to constitute contempt the affront to the court must be so obvious to the judge that a summary trial of the question by the same judge is generally a mere formality. Only in rare cases (for example, where an attempt is made to show cause by evidence that the accused was physically or mentally incompetent to give evidence) is a trial more than a formality. The more a charge of such contempt requires a real trial, the less it resembles criminal contempt. (at p186)

21. When there is a charge by the judge and a summary trial conducted by the same judge, the trial commences, as this one did, by requiring the accused to show cause. The requirement to show cause is not mere form, for the accused is required to meet, not a case which is presented against him by evidence given at his trial, but a case which exists in the mind of the judge at the commencement of the trial, although it may be explained, as it was here, by reference to various matters which formed the basis of the judge's opinion. This can only mean that the tribunal commences, not with a presumption of innocence, but with a presumption of guilt. Such procedures are not easily reconcilable with fundamental principles of justice. (at p186)

22. As Black J. (with whom Warren C.J. and Douglas and Brennan JJ. concurred) in a dissenting opinion, said in Nilva v. United States [1957] USSC 45; (1957) 352 US 385, at pp 403-404 (1 Law Ed 2d 415, at p 425) :
"At the outset, the judge informed the petitioner that the burden was on him to proceed. This is completely inconsistent with the presumption of innocence which exists in favor of a person charged with criminal contempt. Rather, the prosecutor carries the burden of establishing beyond a reasonable doubt that the alleged contemnor committed the offense charged. The almost total absence of any attempt by the Government to introduce evidence at petitioner's trial in support of the accusations of contempt indicates that it relied on the trial judge's personal knowledge of the case. And as the majority points out several times the trial judge repeatedly indicated prior to the trial that he believed that petitioner was guilty of false and evasive testimony - the offense charged in the first specification of contempt. There is nothing which suggests that he did not have similar preconceived views on the other two specifications. Surely every defendant is entitled to an impartial trial by one who has not prejudged his case but instead decides only on the evidence introduced at the trial. Application of this simple principle is just as necessary in contempt cases as in others."
and also (1957) 352 US, at pp 402-403 (1 Law Ed 2d, at p 427-428) :
". . . it is wrong in a Rule 42 (b) proceeding for the same judge who issued the orders allegedly disobeyed and who preferred the charges of contempt on his own initiative and based on his own knowledge to sit in judgment on the accused. In essence, this allows a man who already believes that another person has disobeyed his command to act as both prosecutor and judge in a proceeding to 'decide' formally whether that person disobeyed him and should be punished. It is contrary to elemental principles of justice to place such power in the hands of any man. At the very least another judge should be called upon to try the contempt charges." (at p187)

23. The summary procedure cannot be reconciled with fundamental principles where, as here, the charge of contempt called for a consideration of material other than those answers which were alleged to constitute the contempt. In any event, it should not have been persisted with after the question of the applicant's mental condition, that is, his capacity to concentrate and to recall, arose as a real issue. Summary trial for contempt by the same judge should not be initiated unless the contempt appears clear and no collateral inquiry is contemplated (as where a witness shouts abuse, gives nonsensical answers or in terms refuses to answer a question which he has been directed to answer). (at p188)

24. The applicant's subsequent trial by summary process was manifestly unnecessary for the proper conduct of the police officer's trial; the proceedings against the applicant were not coercive, but punitive. In explaining his resort to the summary process, the trial judge referred to In re Dakin (1887) 13 VLR 522, at p 535 and said:
"The court must have power to punish for contempt the liar who parries questions with a pretended inability to remember. The due administration of justice demands that the court have power to deal itself in a prompt and summary way with conduct of that kind, instead of referring the matter to the Attorney-General in the expectation that the offender will in due course be prosecuted for perjury. Were this not so, the protection afforded by the existence of that species of contempt which consists of the refusal of a witness to answer questions would be much diminished. . . ." (at p188)

25. Of course, false evidence of inability to remember tends to obstruct justice, just as any other false evidence does. Obstruction of the due administration of justice does not amount to criminal contempt of this kind; it is necessary that the affront to justice be obvious. If not, every case where the judge considered that a witness was committing perjury should be treated as contempt, which would be intolerable. Also, in In re Dakin (1887) 13 VLR 522 , the court was being interrupted by external noise and the resort to summary process was necessary to enable the court to proceed with its business. There was no such justification here. If the approach by the trial judge is correct, the summary contempt process may be applied extensively. Use of the contempt power is contagious. In my opinion, summary trial for criminal contempt should not be resorted to unless it is necessary for the carrying out of the court's order or otherwise to enable judicial proceedings to continue. As Brooking J. decided that it was not necessary to deal with the applicant to enable the police officer's trial to continue, the applicant should not have been subjected to subsequent trial by the same judge. (at p188)

26. A further disturbing aspect of this case is that (unlike cases such as Coward v. Stapleton [1953] HCA 48; (1953) 90 CLR 573 ) the applicant's answers alleged by the trial judge to be untrue were given before the constitutional tribunal of fact, the jury, some or all of whose members may have accepted the answers as true. If a judge presiding over a trial by jury can deal with witnesses summarily on the basis that answers which are for the jury to evaluate are found by him to be false and to constitute contempt, this has important implications for the integrity of the system of trial by jury. (at p189)

27. My conclusion is that the trial judge failed to apply the requisite test of obviousness, and that when this test is applied the answers relied upon do not amount to criminal contempt in refusing to answer. The appeal should be allowed, the conviction and sentence quashed. (at p189)

ORDER

Application for special leave to appeal granted.

Appeal dismissed.