R v Da
[2016] VSC 396
•27 JULY 2016
| 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 the subject-matter of the examination; …
[8]Ibid 28–32.
Section 49(10) of the Act provides that a contempt of the Chief Examiner is to be dealt with by the Supreme Court as if the contempt were a contempt of an inferior court.
The contempt proceeding was listed for hearing before me on 13 July 2016. The applicant’s written submissions, filed in advance of the hearing, foreshadowed an application pursuant to s 17B(2) of the Supreme Court Act 1986 seeking a direction that certain questions be referred to the Court of Appeal.[9] The form of the questions was refined during the course of the hearing on 13 July 2016. The final form of the questions the subject of the referral application is set out at Attachment A.
[9]Applicant’s Submissions dated 22 June 2016, [7].
Before turning to the questions which are the subject of the referral application, it is appropriate to address the principles which govern the exercise of the power conferred by s 17B(2) and (3) of the Supreme Court Act 1986. These sections provide as follows:
(2)The Trial Division constituted by a Judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.
(3)If a case, question or proceeding is reserved for the consideration of the Court of Appeal, or is directed by the Trial Division to be argued before it the Court of Appeal and—
(a)the Court of Appeal gives leave, the case, proceeding or question may be considered by, or argued before, the Court of Appeal; or
(b)the Court of Appeal refuses leave, the case, proceeding or question must be remitted to the Trial Division for determination by it.
Section 17B does not prescribe any particular criteria governing the exercise of the power contained therein. Rather, as Brooking J observed in Collins v Black (in reference to the predecessor to s 17B):
everything depends on the circumstances of the particular case.[10]
[10]Collins v Black [1995] 1 VR 409, 410.
In the present proceedings, there are two matters of particular relevance to the exercise of the discretion conferred by s 17B(2). First, the operation of s 49(1)(b) of the Act is the subject of a judgment of King J in R v QX.[11] In the current proceedings, both parties submitted that I am bound to follow her Honour’s judgment unless I am satisfied that it is plainly wrong.[12] Second, if the Court dismisses the application for contempt the applicant has no right of appeal.[13]
[11][2015] VSC 784.
[12]Applicant’s Submissions dated 22 June 2016, [28]; Respondent’s Submissions dated 10 July 2016, [6], [9]. See Commissioner of State Revenue v Challenger Listed Investments (2011) 34 VR 617, 621–622 [20]–[23].
[13]DPP v Garde-Wilson (2006) 15 VR 640, 645–646 [19], 647 [24].
In Collins v Black, Brooking J cautioned:
It must always be borne in mind that the Full Court is primarily a court of appeal and that to by-pass the primary judge is to deprive the Full Court of the benefit of his judgment on the question or questions arising.[14]
[14]Collins v Black [1995] 1 VR 409, 411. See also Construction, Forestry, Mining & Energy Union v Boral Resources (2014) 45 VR 571, 574 [18]; De Simone v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 200, 209 [38].
In the ordinary course, the desirability of the Court of Appeal having the benefit of the trial judge’s reasons for judgment is a powerful consideration weighing against the exercise of the discretion conferred by s 17B(2). However, in the current proceedings if the Court concludes that:
(a) the judgment of King J is not plainly wrong; and
(b) the contempt application should be dismissed;
there will be no further proceedings as there is no right of appeal from the dismissal of a contempt application.
In addition to the matters set out above, I am satisfied that each of the questions sought to be referred to the Court of Appeal raise important issues concerning the operation of s 49(1)(b) of the Act. Whilst each of the three questions have been dealt with in the judgment of King J in R v QX, in each instance it is arguable that her Honour’s reasoning is erroneous.
Question 1
The first question which the Applicant seeks to refer to the Court of Appeal is as follows:
1.On an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, by reason of the person’s refusal or failure to answer a question relevant to the subject-matter of the examination, contrary to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (the Act):
1.1Is it an element of the contempt that the person did not have a reasonable excuse for refusing or failing to answer the question?
1.2If the answer to question 1.1 is ‘yes’:
(a)does the person against whom the order is sought carry the evidential burden of raising the existence of a reasonable excuse for refusing or failing to answer the question; and
(b)does the applicant then carry the burden of proving, beyond reasonable doubt, that the respondent did not have a reasonable excuse for refusing or failing to answer the question?[15]
[15]Proposed Orders of Applicant dated 13 July 2016, Attachment 1, 2.
In R vQX, King J held that:
(a) It is an element of the contempt prescribed by s 49(1)(b) that the examinee did not have a reasonable excuse for refusing or failing to answer a question relevant to the subject-matter of the examination; and
(b) The Chief Examiner bears the onus of establishing this element of the offence beyond reasonable doubt.[16]
[16]R v QX [2015] VSC 784, [54]–[58].
It is arguable that the approach taken by King J to the construction of s 49(1)(b) is inconsistent with the approach of Kyrou J (as his Honour then was) in R v Debono[17] to the construction of s 36(3) and (4) of the Act. These sections provide:
(3)A person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with subsection (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement.
(4)A person who, without reasonable excuse, contravenes subsection (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
[17][2013] VSC 408.
In R v Debono, Kyrou J rejected a contention that the absence of a reasonable excuse is an element of the offence under s 36(4) which the Crown is required to prove beyond reasonable doubt:
The phrase ‘without reasonable excuse’ does not form part of the definition of the grounds of liability under s 36(3) of the Act but introduces a new matter, the existence of which provides an exception to the criminal liability that would otherwise arise. The form and structure of sub-ss 36(3) and (4) support this conclusion, as the definition of the grounds of liability is complete under s 36(3) without the need to consider the exculpatory ground in s 36(4). Finally, the existence of facts that might constitute a reasonable excuse would ordinarily lie within the exclusive knowledge of an accused.[18]
[18]Ibid [29].
In R v QX, King J distinguished Kyrou J’s reasoning in respect of s 36(3) and (4). Her Honour did so on the basis that, in contrast to s 36(3) and (4), the grounds of liability in s 49(1)(b) includes the phrase ‘without reasonable excuse’:
The distinct placement of the words within the grounds of liability, give a clear indication that parliament intended that it should be an element of the offence that the Chief Examiner must prove beyond reasonable doubt.[19]
[19]R v QX [2015] VSC 784, [50].
King J also rejected the contention that, for the purposes of s 49(1)(b), the knowledge of a reasonable excuse is a matter exclusively within the knowledge of an examinee and thus should be viewed as an exception rather than an element of the offence.[20] This is also to be contrasted with the approach of Kyrou J who considered that ‘the existence of facts that might constitute reasonable excuse would ordinarily lie within the exclusive knowledge of an accused.’[21]
[20]Ibid [53].
[21]R v Debono [2013] VSC 408, [29].
If the Court considered that the applicant’s challenge to King J’s conclusion that ‘without reasonable excuse’ is an element of the offence under s 49(1)(b) had no prospects of success, there would be no utility in referring question 1 to the Court of Appeal. Without expressing any concluded view as to the applicant’s prospects of success, I am satisfied that the challenge has sufficient merit to warrant referral of question 1 to the Court of Appeal.
Question 2
The second question which the applicant seeks to refer to the Court of Appeal is as follows:
2Is it an essential pre-condition to an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, contrary to s 49(1)(b) of the Act, that the Chief Examiner:
2.1first give the person, in the course of the person’s examination, an opportunity to advance his or her excuse for not answering the question;
2.2then, if the Chief Examiner forms the view that the excuse was not a reasonable excuse for refusing or failing to answer the question, inform the person of the Chief Examiner’s view; and
2.3finally, allow the person to reconsider his or her position?[22]
[22]Proposed Orders of Applicant dated 13 July 2016, Attachment 1, 2.
In the present proceedings there does not appear to be any dispute between the parties that DA was given an opportunity to advance an excuse for not answering the Chief Examiner’s questions.[23] The transcript of DA’s examination records DA stating that he feared for his safety if he answered questions in relation to the subject-matter of the investigation.[24] The Chief Examiner accepted that these fears were genuine.[25] However, a question does arise in the current proceedings as to the extent to which, if at all:
(a)the Chief Examiner informed DA that his fears for his safety were not a reasonable excuse for refusing to answer questions; and
(b) allowed DA an opportunity to reconsider his position.
[23]Transcript of Proceedings, R v DA (Supreme Court of Victoria, S CR 2016 0042, McDonald J, 5 May 2016) T3 LL1–5.
[24]Exhibit A, Transcript of Examination on 24 March 2016, 15, 26–28.
[25]Ibid 17.
In R v QX, King J stated:
No determination was made, or even stated to have been made by the Chief Examiner, that the explanation put forward by the respondent was not reasonable in the circumstances of the hearing and no reasons provided to the respondent as to why the excuse provided was not reasonable. Nor was any opportunity then afforded to the respondent to re-consider his position once told that the excuse he had put forward was unreasonable. In my view, these are necessary steps that are required to be taken by the Chief Examiner before a charge of contempt should be laid against a witness.[26]
[26]R v QX [2015] VSC 784, [59].
In the present proceedings the applicant contends that there is no provision in the Act which supports King J’s reasoning as set out above.[27] The applicant submits that he should be afforded an opportunity to test the existence of an obligation to inform an examinee as to the reasonableness of his/her excuse to refuse to answer questions and to provide the examinee with an opportunity to reconsider his/her position, as a pre-condition to a contempt charge being laid.[28] I am satisfied that it is arguable that the Act does not impose upon the Chief Examiner obligations of the type identified by King J as a pre-condition to the laying of a charge of contempt pursuant to s 49(1)(b) of the Act.
[27]Applicant’s Submissions dated 22 June 2016, [18]–[19].
[28]Ibid.
Question 3
The third question the subject of the referral application is as follows:
3.Does the omission of the Chief Examiner, when examining a person under the Act, to assure that person that answers given to the Chief Examiner will not be communicated to prosecuting authorities or used to compel the person to become a witness in a prosecution against alleged perpetrators of an organised crime offence, justify the conclusion that:
3.1the Chief Examiner has failed to establish, as an element of the act of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act, that the person had no reasonable excuse for refusing or failing to answer a question relevant to the subject-matter of the examination; or
3.2the person had a reasonable excuse for refusing or failing to answer a question relevant to the subject-matter of the examination and, therefore, a good defence to the charge of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act?[29]
[29]Proposed Orders of Applicant dated 13 July 2016, Attachment 1, 2–3.
In the present proceedings there is no dispute that the respondent was not provided with any assurance that answers which he gave to the Chief Examiner would not be communicated to prosecuting authorities or used to compel him to become a witness.[30]
[30]Transcript of Proceedings, R v DA (Supreme Court of Victoria, S CR 2016 0042, McDonald J, 13 July 2016) T18 LL6–10.
In R v QX, King J stated:
At no time was he assured that what he said at the hearing would not be passed onto any prosecuting authorities and could not be used to compel him to become a witness in a prosecution against the alleged perpetrators of the organised crime offence. Without such clear reassurance being provided by the Chief Examiner, I am of the view that not only has the Chief Examiner failed to prove that the respondent did not have a reasonable excuse for his refusal to answer the questions put to him, I am positively of the view that he did, at that time, have a reasonable excuse to refuse to answer those questions.[31]
[31]R v QX [2015] VSC 784, [87].
The examination which gave rise to the contempt charge which was the subject of King J’s judgment occurred in August 2013.[32] This was prior to the amendment of the Act in 2014, which introduced s 43A into the Act. However, when the judgment in R v QX was delivered in February 2015, s 43A was part of the Act. Section 43A(5) confers power upon the court to make restricted evidence available to the person charged or a legal practitioner representing the person charged and to the DPP if, after examining the restricted evidence and considering submissions which have been made, the court is satisfied that the interests of justice so require. Arguably King J’s reasoning at [87] cannot be reconciled with s 43A. The Chief Examiner could not give an assurance to an examinee that anything said at a hearing would not be passed on to prosecuting authorities. However, [87] of King J’s judgment supports the contention that, absent such an assurance, an examinee has a reasonable excuse for refusing to answer the Chief Examiner’s question.
[32]Ibid [3]–[4].
Putting to one side the operation of s 43A, it is arguable that in August 2013 ss 45(4) and 67, read in conjunction with ss 43(4), (4A) and (5) of the Act, left open the possibility that the evidence of an examinee could be used in a prosecution and that the examinee could be called as a prosecution witness.[33] It is therefore arguable that King J’s reasoning at [87] cannot be reconciled with the provisions of the Act as in operation at the time of the examination which gave rise to the contempt proceedings the subject of her judgment.
[33]See The Chief Examiner v Brown (a pseudonym) (2013) 44 VR 741, 770–771 [102]–[106].
Other considerations
Mr Chernok, who appeared on behalf of DA, resisted the application under s 17B of the Supreme Court Act 1986. He submitted that DA is being used as a vehicle by the Applicant to clarify the law; that no controversy is raised by King J’s decision; that a referral would occasion delay; and that DA is currently serving his sentence in respect of another offence in more onerous remand conditions due to the contempt charge.[34] In particular, on behalf of DA it was submitted that ‘a degree of prejudice … flows to him’[35] because, but for the unresolved contempt charge, ‘he would be in a minimum security facility where … there is a greater degree of time out of cell during the day … [and] less restriction on a prisoner’s movement.’[36]
[34]Transcript of Proceedings, R v DA (Supreme Court of Victoria, S CR 2016 0042, McDonald J, 13 July 2016) T26 LL15-25.
[35]Ibid T23 LL30-31.
[36]Ibid T25 LL12-16.
However, there was no evidence about conditions of incarceration before the Court. The submission as to alternative incarceration conditions is speculative. Indeed, Mr Chernok conceded that where DA serves his sentence is ultimately a matter for the prison authorities.[37]
[37]Ibid T26 LL3-15.
Conclusion
Each of the three questions the subject of the referral application arise in the current proceedings. Each is dealt with expressly by the judgment of King J in R v QX. In each instance it is arguable that her Honour’s reasoning is attended by error. However, insofar as those questions are dealt with in her Honour’s judgment, her reasoning is binding upon me unless I am satisfied that it is plainly wrong. Further, the applicant has no right of appeal in the event that the contempt application is dismissed. I am satisfied in all the circumstances that it is in the interests of justice to direct that each of the three questions as set out in Attachment A be argued before the Court of Appeal.
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Attachment A
1.On an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, by reason of the person’s refusal or failure to answer a question relevant to the subject-matter of the examination, contrary to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (the Act):
1.1Is it an element of the contempt that the person did not have a reasonable excuse for refusing or failing to answer the question?
1.2If the answer to question 1.1 is ‘yes’:
(a)does the person against whom the order is sought carry the evidential burden of raising the existence of a reasonable excuse for refusing or failing to answer the question; and
(b)does the applicant then carry the burden of proving, beyond reasonable doubt, that the respondent did not have a reasonable excuse for refusing or failing to answer the question?
2.Is it an essential pre-condition to an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, contrary to s 49(1)(b) of the Act, that the Chief Examiner:
2.1first give the person, in the course of the person’s examination, an opportunity to advance his or her excuse for not answering the question;
2.2then, if the Chief Examiner forms the view that the excuse was not a reasonable excuse for refusing or failing to answer the question, inform the person of the Chief Examiner’s view; and
2.3finally, allow the person to reconsider his or her position?
3.Does the omission of the Chief Examiner, when examining a person under the Act, to assure that person that answers given to the Chief Examiner will not be communicated to prosecuting authorities or used to compel the person to become a witness in a prosecution against alleged perpetrators of an organised crime offence, justify the conclusion that:
3.1the Chief Examiner has failed to establish, as an element of the act of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act, that the person had no reasonable excuse for refusing or failing to answer a question relevant to the subject-matter of the examination; or
3.2the person had a reasonable excuse for refusing or failing to answer a question relevant to the subject-matter of the examination and, therefore, a good defence to the charge of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act?
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