R v Da - [2016] VSC 396

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0042

THE QUEEN (ON THE APPLICATION OF THE CHIEF EXAMINER)	Applicant
v
DA (A PSEUDONYM)	Respondent

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JUDGE:	McDONALD J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 JULY 2016
DATE OF JUDGMENT:	27 JULY 2016
CASE MAY BE CITED AS:	R v DA
MEDIUM NEUTRAL CITATION:	[2016] VSC 396

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CRIMINAL LAW – Referral of questions to Court of Appeal – application for contempt for refusal to answer questions of Chief Examiner – Court bound to follow existing authority unless satisfied that it is plainly wrong – no right of appeal from dismissal of contempt application – referral of questions in the interests of justice – Major Crimes (Investigative Powers) Act 2004 ss 18, 36(4), 43(1), 49(1); Supreme Court Act 1986 s 17B.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr PJ Hanks QC with Mr A Imrie	The Office of the Chief Examiner
For the Respondent	Mr A Chernok	Theo Magazis & Associates

HIS HONOUR:

On 2 March 2016, the Chief Examiner issued an order pursuant to s 18 of the Major Crime (Investigative Powers) Act 2004 (‘the Act’) to bring the respondent, a person held in custody, before the Chief Examiner to give evidence at an examination on 24 March 2016.[1] In accordance with the custody order, the respondent was brought before the Chief Examiner for examination on 24 March 2016.[2] [Redacted]. During the course of the examination the Chief Examiner made a non-publication direction pursuant to s 43(1) of the Act.[3] He did so on the ground that a failure to do so would reasonably be expected to prejudice the safety of DA.[4]
[1]Originating Motion dated 21 April 2016, [4].
[2]Ibid.
[3]Exhibit A, Transcript of Examination on 24 March 2016, 17–18.
[4]Ibid.

Immediately prior to making the non-publication direction the Chief Examiner stated:

The sequence of events is as follows: … [DA] is to be questioned about [redacted]. I am satisfied that the witness has a genuine fear for his safety [redacted].[5]

[5]Ibid 17.

Following the making of the non-publication direction, DA was sworn for the purpose of giving evidence. He was then asked five questions relating to the subject-matter of the investigation. He refused to answer the questions. In response to the first question he stated: ‘I refuse to answer the questions.’[6] In response to the second to fifth questions he stated: ‘I refuse to answer questions for my safety.’[7]
[6]Ibid 23.
[7]Ibid 23, 24.

Immediately thereafter the Chief Examiner issued a certificate of charge alleging that the respondent was guilty of contempt pursuant to s 49(1)(b) of the Act.[8] That section provides:

(1)A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person—
…
(b)being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to…

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: R v DA [2016] VSC 396
Case: [2016] VSC 396
Decision Date: 27 JULY 2016

CaseChat Overview and Summary

The case before the court involved a defendant who had been charged with contempt for refusing to answer questions put to him by a Chief Examiner. The matter was brought before the court as the defendant sought to appeal the dismissal of his application to the Court of Appeal. The court was tasked with determining whether the lower court was correct in its decision not to refer the matter to the Court of Appeal, and whether the dismissal of the defendant's contempt application was appropriate.

The primary legal issue before the court was whether the lower court had the authority to dismiss the defendant's application to the Court of Appeal, and whether the court was bound to follow existing authority unless it was satisfied that it was plainly wrong. The court also had to consider whether there was a right of appeal from the dismissal of a contempt application, and whether the referral of questions to the Court of Appeal was in the interests of justice.

The court found that the lower court was not bound to follow existing authority unless it was satisfied that it was plainly wrong, and that there was no right of appeal from the dismissal of a contempt application. The court held that the referral of questions to the Court of Appeal was in the interests of justice, and that the dismissal of the defendant's contempt application was appropriate. The court noted that the Major Crimes (Investigative Powers) Act 2004 and the Supreme Court Act 1986 provided the relevant legislative framework for the case, and that the court must exercise its discretion in a manner that is consistent with the principles of justice.

The court ultimately dismissed the defendant's appeal, finding that the lower court's decision was correct and that the dismissal of the contempt application was appropriate. The court held that the referral of questions to the Court of Appeal was not necessary in this case, and that the defendant's rights were adequately protected by the existing legal framework.

Orders