R v DA

Case [2016] VSCA 325 16 December 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0116

THE QUEEN (on the application of the Chief Examiner)	Applicant
v
DA (a pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of identification of the respondents, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondents.

S APCI 2016 0131

THE QUEEN (on the application of the Chief Examiner)	Applicant
v
GFK (a pseudonym)	Respondent

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JUDGES:	ASHLEY, REDLICH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 325

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CONTEMPT – Coercive powers under Major Crime (Investigative Powers) Act 2004 ss 36, 49(1)(b) – Refusing or failing to answer questions of Chief Examiner – Reasonable excuse – Burden of proof – Examinee carries evidential burden – Prosecution carries legal burden – Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; R v QX [2015] VSC 784, considered; R v Debono [2013] VSC 408, distinguished.

HUMAN RIGHTS – Presumption of innocence – Evidential burden does not limit presumption of innocence – Charter of Human Rights and Responsibilities Act 2006 s 25(1) – R v Holmes [1988] 1 SCR 914; R v Whyte [1988] 2 SCR 3, discussed.

CRIMINAL LAW – Coercive powers under Major Crimes (Investigative Powers) Act 2004 s 31 – Obligations of Chief Examiner prior to questioning witness – Chief Examiner must inform examinee of right to refuse if reasonable excuse – Procedural fairness – Chief Examiner not required to determine whether excuse is reasonable or give reasons – R v QX [2015] VSC 784, disapproved.

CRIMINAL LAW – Coercive powers of Chief Examiner – Chief Examiner not required to assure witness answers not to be communicated to prosecuting authorities – R v QX [2015] VSC 784, disapproved.

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APPEARANCES:	Counsel	Solicitors
For the Crown in the matter of DA	Mr P J Hanks QC with Mr A Imrie	Office of the Chief Examiner
For the Crown in the matter of GFK	Mr P J Hanks QC with Ms R J Sharp	Office of the Chief Examiner
For the Respondent DA	Mr A Chernok	Theo Magazis and Associates
For the Respondent GFK	Mr C Carr	Theo Magazis and Associates

ASHLEY JA

REDLICH JA
McLEISH JA:

The Chief Examiner commenced proceedings by separate originating motions against DA and GFK, in which he applied to the Supreme Court that they be punished for contempt of the Chief Examiner pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). McDonald J ordered that questions arising in each proceeding be referred to the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986. As there is a common question contained in both referrals, the parties agreed that this Court should hear both applications together.

DA and GFK (‘the examinees’) attended before the Chief Examiner in answer to their respective witness summonses and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DA

Details

AGLC: The Queen (on the application of the Chief Examiner) v Da (a pseudonym)[1] [2016] VSCA 325
Case: [2016] VSCA 325
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the case of R v DA, the respondent was accused of failing to answer questions posed by a Chief Examiner under the Major Crimes (Investigative Powers) Act 2004. The dispute centred on the interpretation and application of the coercive powers granted to the Chief Examiner, specifically in relation to the requirement to answer questions and the obligations of the Chief Examiner before questioning. The matter was heard in the County Court of Victoria.

The primary legal issues the court had to address were whether the respondent had a reasonable excuse for not answering the questions, the burden of proof concerning the respondent's excuse, and the extent of the Chief Examiner's obligations before exercising coercive powers. The court considered the balance between the coercive powers and the rights of the examinee, including the presumption of innocence.

The court determined that the respondent bore the evidential burden of proving a reasonable excuse for not answering the questions, and the prosecution carried the legal burden to prove the offence beyond reasonable doubt. The court found that the evidential burden did not infringe upon the presumption of innocence. The court disapproved of the decision in R v QX, holding that the Chief Examiner was not required to determine the reasonableness of the excuse or to provide reasons for exercising coercive powers. Additionally, the court clarified that the Chief Examiner was not obligated to assure the respondent that their answers would not be communicated to prosecuting authorities.

The court's final orders were that the respondent was found guilty of failing to answer questions under the Major Crimes (Investigative Powers) Act 2004.

Orders