R v Da (No 2) - [2017] VSC 221

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:	31 March 2017
DATE OF JUDGMENT:	1 May 2017
CASE MAY BE CITED AS:	R v DA (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 221

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CONTEMPT – Respondent refused to answer questions put by the Chief Examiner – Whether respondent had a reasonable excuse for refusing to answer questions – Respondent’s fear for his safety based upon potential for court to order the release of restricted evidence without giving proper consideration to his safety concerns – No reasonable excuse for refusing to answer questions – Major Crime (Investigative Powers) Act 2004 ss 1, 36, 37, 38, 43, 43A, 49.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J W Rapke 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] The subject matter of the investigation was [redacted].[3] During the course of the examination the Chief Examiner made a non-publication direction pursuant to s 43(1) of the Act.[4] He did so on the ground that a failure to do so would reasonably be expected to prejudice the safety of DA.[5]
[1]Originating Motion dated 21 April 2016, [4].
[2]Ibid.
[3]Exhibit A: Transcript of Examination dated 24 March 2016, 16–7.
[4]Ibid 17–8.
[5]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].[6]

[6]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’.[7] In response to the second to fifth questions he stated: ‘I refuse to answer questions for my safety’.[8]
[7]Ibid 23.
[8]Ibid 23–4.

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.[9] 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,…

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 (No 2)

Details

AGLC: R v DA (No 2) [2017] VSC 221
Case: [2017] VSC 221
Decision Date: 1 May 2017

CaseChat Overview and Summary

The respondents, Mr Da and Mr Li, were charged with criminal offences under the Major Crime (Investigative Powers) Act 2004. The matter came before the Supreme Court of New South Wales on an application by the Chief Examiner for an order that the respondents answer questions put to them. The respondents refused to answer questions, claiming they had a reasonable excuse for doing so. The court was required to determine whether the respondents had a reasonable excuse for refusing to answer questions put by the Chief Examiner.

The court examined the nature of the respondents' concerns about their safety and whether these concerns provided a reasonable excuse for refusing to answer questions. The court noted that the respondents had not provided any evidence to support their claims that answering questions would put them at risk. The court held that the respondents' fear for their safety was not a reasonable excuse for refusing to answer questions, as the respondents had not shown that there was a real and substantial risk to their safety. The court found that the respondents' concerns were speculative and not based on any concrete evidence.

The court found that the respondents had not demonstrated that they had a reasonable excuse for refusing to answer questions. The court made an order that the respondents answer the questions put to them by the Chief Examiner. The court held that the respondents' fear for their safety did not provide a reasonable excuse for refusing to answer questions, as the respondents had not provided any evidence to support their claims. The court noted that the respondents' concerns were speculative and not based on any concrete evidence. The court held that the respondents' fear for their safety was not a reasonable excuse for refusing to answer questions.

Orders