R v Da (No 2)
[2017] VSC 221
•1 May 2017
| 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 |
---
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 |
---
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.
---
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, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination.
[9]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 application was initially listed for hearing on 13 July 2016. At that time the applicant sought a referral to the Court of Appeal on a number of questions of law. The application was granted.[10] The questions referred to the Court of Appeal included the following:
[10]See R v DA [2016] VSC 396R.
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?[11]
[11]Ibid [12].
The Court of Appeal answered each of questions 1.1, 1.2(a) and 1.2(b) in the affirmative.[12] Accordingly, DA has the evidentiary burden of adducing or identifying evidence of a reasonable excuse. The onus then falls upon the prosecution to prove beyond reasonable doubt that those facts or circumstances relied upon by DA do not constitute a reasonable excuse.
[12]R v DA [2016] VSCA 325, [67].
As to the burden of proof, the Court of Appeal stated:
Reading s 49(1)(b) in this manner is compatible with the right to be presumed innocent because it cannot be said that an evidentiary onus, falling short of imposing any burden of persuasion, limits that right. In effect, the evidentiary burden requires the accused only to raise a reasonable doubt, upon which the burden falls on the prosecution to remove that doubt. As Dickson CJ explained in Holmes:
The basic principle of the common law has been that the accused need not prove a defence. Once an accused raises the possibility that a defence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required to disprove that defence beyond a reasonable doubt. The common law has not distinguished in this area between defences that challenge the existence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid criminal liability because of circumstances that excuse or justify that conduct.
The above construction is consistent with the purposes of the Act, relevantly to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences: s 1(a). Section 49(1) itself makes it clear that it is only unjustified non-compliance with the coercive powers that is intended to attract criminal sanctions. While the examinee has the burden of adducing or identifying evidence of a reasonable excuse, if the excuse is not bona fide or is not reasonable, when judged objectively, it will not ordinarily be difficult for the prosecution to discharge its burden of showing that to be so. Neither the substance of the provision nor its context provide any indication that the persuasive burden of establishing that a reasonable excuse exists should rest upon the examinee.[13]
[13]Ibid [48]–[49] (citations omitted).
I have concluded that DA has discharged the evidentiary burden of identifying evidence of a reasonable excuse, constituted by a genuine fear for his safety if he answered questions regarding the subject matter of the examination. However, the applicant has established beyond reasonable doubt that the matters relied upon by DA do not constitute a reasonable excuse for the purposes of s 49(1)(b) of the Act.
In Taikato v The Queen,[14] Brennan CJ, Toohey, McHugh and Gummow JJ stated:
The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.[15]
[14](1996) 186 CLR 454.
[15]Ibid 464.
Consistent with this statement of principle, it is necessary to consider the purpose of the provision to which the reasonable excuse defence is an exception. Section 49(1)(b) of the Act 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.
Section 49 is in pt 4 of the Act: Examinations. Part 4 prescribes a number of offences including the following:
36(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).
…
37(2) A person appearing as a witness before the Chief Examiner must not, without reasonable excuse—
(a)at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or
(b)refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.
(3)A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
…
38(1) A person appearing as a witness at an examination before the Chief Examiner must not give evidence that the person knows is false or misleading in a material particular.
(2)A person must not produce to the Chief Examiner in accordance with a witness summons a document or other thing that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Conduct which constitutes a contravention of the provisions set out above also exposes an individual to potential liability for contempt of the Chief Examiner. However, s 50(1) of the Act provides that:
If an act or omission constitutes both an offence against this Act and a contempt of the Chief Examiner, the offender is liable to be proceeded against for the offence or for contempt or both, but is not liable to be punished more than once for the same act or omission.
The purposes of the Act are prescribed by s 1:
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b) to combat and reduce the incidence of organised crime offences.
The words ‘and prosecute’ in s 1(a) of the Act were introduced pursuant to s 156(a) of the Criminal Organisations Control and Other Acts Amendment Act 2014. The explanatory memorandum in respect of the provision which amended s 1(a) states:
The amendment clarifies the purposes of the MCIP Act by including the investigation and prosecution of organised crime offences and the overarching purpose of combatting and reducing the incidence of organised crime offences.[16]
[16]Explanatory Memorandum, Criminal Organisations Control and Other Acts Amendment Bill 2014 (Vic) 69.
The purpose of s 49(1)(b) of the Act is to provide an incentive to an examinee to answer questions relevant to the subject matter of an examination. This purpose compliments the overarching purpose of the Act of combatting and reducing the incidence of organised crime offences. That purpose will be undermined if an examinee, without reasonable excuse, refuses to answer questions relevant to the subject matter of an examination.
Earlier in this judgment I have referred to the non-publication direction made by the Chief Examiner on 24 March 2016. That direction was made pursuant to s 43(1) and (2)(a) of the Act which provide:
(1) The Chief Examiner may direct that—
(a) any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice—
(a)the safety of a person
…
Section 43(3) provides that a ‘person who makes a publication or communication in contravention of a direction given under subsection (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum)’.
A restriction on publication of evidence flowing from a non-publication direction under s 43 is subject to the operation of s 43A:
Release of restricted evidence to a person charged with an offence
(1)If a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.
(2)If the court gives a certificate under subsection (1), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.
(3)If restricted evidence is made available to a court under subsection (2), the court must give each person referred to in subsection (4) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the person charged or a legal practitioner representing the person charged.
(4) For the purposes of subsection (3), the persons are—
(a) the Chief Examiner; and
(b) the Chief Commissioner; and
(c)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.
(5)The court may make the restricted evidence available to the person charged or a legal practitioner representing the person charged, and to the Director of Public Prosecutions, if, after examining the restricted evidence and considering any submissions made under subsection (3), the court is satisfied that the interests of justice so require.
In Ross v Chief Commissioner of Police,[17] the Court of Appeal stated in respect of s 43A(1) to (5):
The effect of s 43A(1) is that the Chief Commissioner, the Director or a person ‘charged with an offence before the court’, may make application that restricted evidence be ‘made available’ to the person charged; and the court may give the Chief Examiner or Chief Commissioner a certificate that the restricted evidence be made available if it is ‘desirable in the interests of justice’. Thus, it will be noticed that although any one of the three persons named in the section might make application for restricted evidence to be made available, s 43A(1) permits a certificate to be given only to the Chief Examiner or Chief Commissioner, presumably in recognition that the restricted evidence will be in the possession of either or both. Moreover, the section makes clear that it may only be invoked once a person has been ‘charged with an offence before the court’, since one of the three persons who may make application is the person so charged. The only condition governing the grant of a certificate which permits the evidence to be made available is that it is desirable in the interests of justice. Once the court grants a certificate, by reason of s 43A(2) the Chief Examiner or Chief Commissioner have no option, but ‘must make the restricted evidence available to the court’ (that is, not the Director or the ‘person charged with an offence before the court’).
…
Subsections 43A(3), (4) and (5) make plain that, once restricted evidence is made available to the court pursuant to the certificate granted under s 43A(1), the court must give each of three persons an ‘opportunity to make submissions to the court’. The three persons are the Chief Examiner and Chief Commissioner, and, where a direction has been given under s 43(1), the witness (‘person’) whose ‘safety’ the Chief Examiner was satisfied might reasonably be expected to be prejudiced — that is, the person who provided the evidence. The court must then examine the restricted evidence and consider the submissions made by the Chief Examiner, the Chief Commissioner and the witness whose evidence is restricted because of prejudice to his or her safety. It is only after ‘examining the restricted evidence and considering any submissions’ that the court may make the restricted evidence available to the person charged and the Director. And the court may only make the restricted evidence so available if ‘satisfied that the interests of justice so require’.[18]
[17](2014) 45 VR 220 (‘Ross’).
[18]Ibid [48], [50] (citations omitted).
The non-publication direction made by the Chief Examiner on 24 March 2016 did not preclude a court from making DA’s evidence available to a person charged or their legal representative. However, a court could not do so unless:
(i) DA was given an opportunity to make submissions to the court as to whether the restricted evidence should be made available, in whole or in part, to the person charged or their legal representative;
(ii) the court was satisfied that the interests of justice required the evidence to be made available to the person charged or their legal representative.
Further, the fact that the Chief Examiner was satisfied that a failure to make a non-publication direction would reasonably be expected to prejudice DA’s safety would not preclude a court from deciding that it was in the interests of justice for the evidence to be released to a person charged or their legal representative.
In Ross, the Court of Appeal stated, in reference to the discretion conferred upon a court by s 43A(5) to release restricted evidence:
To our minds, the word ‘require’ connotes demanding something as necessary or obligatory, rather than being merely permissive. Further, although in any given case, the nature and content of ‘the interests of justice’ must be derived from the context — statutory and otherwise — that is applicable, it may safely be essayed that the interests of justice in the present case include the public interest in the conviction of [*redacted] if he is guilty (and his acquittal if the prosecution evidence is insufficient to satisfy the burden of proof), and the appellant’s interest in ensuring that her safety is not prejudiced. Moreover, since the public interest in ensuring [*redacted]’s conviction by recourse to all of the relevant and admissible evidence going to establish his guilt is in tension with the appellant’s interest in protecting her personal safety, determining what the interests of justice require calls for an evaluation of the importance of the restricted evidence to the possibility of [*redacted]’s lawful conviction if it is made available (and his possible wrongful acquittal if it is not made available), against the importance of avoiding possible prejudice to the appellant’s personal safety.
…
None involved in this case denied that, should her evidence be made available to [*redacted], the risk to the appellant’s safety is real. In our view, however, the provisions of the Act contemplate that there will be occasions where the safety of a witness might be put at risk by making his or her restricted evidence available, yet the interests of justice nonetheless require that the evidence be made available. This is such a case. Making due allowance for the fact that the appellant’s evidence was given under compulsion, and at a time when she was entitled to expect that her safety would be protected by its non-disclosure, the interests of justice require that her evidence be made available.
It matters little, in our view, that the prosecution’s circumstantial case would remain strong absent her evidence. The appellant’s evidence provides very significant underpinning to that circumstantial case. Moreover, her evidence contains a confession to the killing by [*redacted], and attempts by him to cover up that killing. Hence the importance of the evidence cannot be gainsaid. [*redacted] is charged with murder. There is a public interest in ensuring his conviction for that most serious crime. Proving [*redacted]’s guilt of that crime, by harvesting the appellant’s restricted evidence, outweighs the interest that there may be in avoiding prejudice to the appellant’s safety. Her safety is, of course, a factor which must be weighed in the balance in determining what the interests of justice require. Securing [*redacted]’s conviction for murder, however, in the circumstances of this case outweighs her legitimate concerns for her welfare.[19]
[19]Ibid [72], [84]–[85].
There is a direct overlap in the matters which underpin the Chief Examiner’s non-publication direction under s 43(2)(a) and the basis of DA’s reasonable excuse defence under s 49(1)(b). The primary evidence which DA points to in satisfaction of the reasonable excuse defence is contained in the transcript of his examination by the Chief Examiner on 24 March 2016:
[redacted].[20]
[20]Exhibit A: Transcript of Examination dated 24 March 2016, 5, 7–8, 9–10, 15–7, 18–21.
It is clear from a number of the exchanges between DA and the Chief Examiner set out above that a key aspect of DA’s fear of the consequences of his giving evidence arose from his concern that such evidence could be released to [redacted] and/or his legal representatives. [Redacted].
Immediately prior to making a non-publication direction under s 43(2)(a), the Chief Examiner stated:
The witnesses is to be questioned about the first organised crime offence set out in the coercive order, coercive powers order made by the Honourable Rush J of the Supreme Court of Victoria on 18 August 2015. That organised crime offence is [redacted] and continuing at the date of the affidavit in support of the application for the coercive powers order.
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]. On that basis, I am required to make a non-publication direction by section 43 of the Act.[21]
[21]Ibid 16–7.
Mr Rapke QC, who appeared with Mr Imrie for the applicant, submitted that if DA had a reasonable excuse to the charge of contempt based upon his fear that the evidence would be released by a court to [redacted] and/or his legal representatives, this would make a nonsense of the statutory scheme governing non-disclosure orders.[22] In effect, Mr Rapke submitted that:
(iii) It is for a court to determine under s 43A whether it is in the interests of justice for evidence to be provided to an accused and/or his or her legal representative; and
(iv) DA, by refusing to answer any questions, had deprived a court of the ability to make an independent assessment of whether it was in the interests of justice for the evidence to be released.[23]
[22]Transcript of Proceedings, R v DA (Supreme Court of Victoria, S CR 2016 0042, McDonald J, 31 March 2017) T33 LL23–31; ‘Outline of Submissions of the Applicant’ dated 3 March 2017, [15]–[19].
[23]See Transcript of Proceedings, R v DA (Supreme Court of Victoria, S CR 2016 0042, McDonald J, 31 March 2017) T64 LL14–18.
Mr Chernok, who appeared for DA, submitted that if the Court accepted Mr Rapke’s submission ‘it would effectively deprive the reasonable excuse provision in circumstances where it’s invoked on the basis of safety of any work to do’.[24]
[24]Ibid T70 LL6–8.
The statutory scheme governing non-disclosure orders pre-supposes that where a non-disclosure order has been made based on an examinee’s fear for his or her safety, the examinee will answer the questions asked by the Chief Examiner. Evidence gathered can only be released if a court considers that it is in the interests of justice to do so. Consideration of the interests of justice will require a court to take into account the examinee’s fears for his or her safety.
As is demonstrated by the Court of Appeal judgment in Ross,[25] the interests of justice may justify the release of an examinee’s evidence notwithstanding the court’s conclusion that disclosure may place the examinee in jeopardy. When DA refused to answer the Chief Examiner’s questions he specifically referred to the possibility that a judge would release any evidence gathered notwithstanding the non-disclosure order:
[redacted].[26]
When the Chief Examiner pointed out to DA that he would have an opportunity to make submissions to a court opposing the release of any evidence, DA twice responded:
I don’t want to risk it.[27]
[25](2014) 45 VR 220.
[26]Exhibit A: Transcript of Examination dated 24 March 2016, 20.
[27]Ibid.
The ‘risk’ which DA was not prepared to take was the risk that, having heard submissions on his behalf opposing the release of restricted evidence, a court would nevertheless consider it in the interests of justice to do so and make an order releasing the evidence. DA’s assessment of the risk was informed by his opinion that a judge considering an application for the release of restricted evidence would have little regard to his stated fears for his wellbeing:
Well, really they wouldn’t care about me or my family, so they would release it in this day and era now.[28]
[28]Ibid 10.
The court’s power to release evidence pursuant to s 43A(5) is discretionary. If the power was exercised in circumstances where a judge disregarded an examinee’s genuinely stated safety concerns the exercise of the discretion would be attended by legal error and would be likely to be set aside. DA’s unwillingness to risk an independent judicial assessment of whether, in the interests of justice, his restricted evidence should be released was based on an erroneous view of how a judge would approach the exercise of the discretion conferred by s 43A. DA did not have a reasonable excuse within the meaning of s 49(1)(b) to refuse to answer the questions put to him by the Chief Examiner on 24 March 2016.
I accept that DA has discharged the evidentiary burden of raising the possibility that a reasonable excuse defence exists. The matters relied upon by the Chief Examiner on 24 March 2016 when making the non-publication direction support a finding that DA has discharged the evidentiary burden. However, as the Court of Appeal observed in R v DA:[29]
…if the excuse is not bona fide or is not reasonable, when judged objectively, it will not ordinarily be difficult for the prosecution to discharge its burden of showing that to be so.[30]
[29][2016] VSCA 325.
[30]Ibid [49].
Viewed objectively, DA’s excuse for refusing to answer the Chief Examiner’s questions was not reasonable. It was based upon a serious misapprehension regarding the approach a judge would take to the exercise of the discretion under s 43A(5). Effectively, DA’s position was that the judge would simply rubber stamp the release of restricted evidence without giving any proper consideration to DA’s stated concerns for his safety or for that of his family. The applicant has proved beyond reasonable doubt that DA did not have a reasonable excuse for refusing to answer the Chief Examiner’s questions. As such, DA is guilty of the charge of contempt of the Chief Examiner. I shall provide the parties with an opportunity to make submissions on penalty.
---