JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	25 March 2013
DATE OF JUDGMENT:	10 April 2013
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2013] VSC 408

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CRIMINAL LAW — Charge of refusing to take an oath or make an affirmation contrary to s 36(4) of the Major Crime (Investigative Powers) Act 2004 — Defence of ‘reasonable excuse’ — Meaning of phrase ‘without reasonable excuse’ — Whether the evidence to be adduced was capable in law of constituting a ‘reasonable excuse’.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G H Livermore	Office of Public Prosecutions
For the Accused	Mr L C Carter	Lethbridges

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Procedural history.............................................................................................................................. 2

Elements of the offence under s 36(4) of the Act.......................................................................... 4

Onus of proof...................................................................................................................................... 6

Meaning and scope of ‘without reasonable excuse’.................................................................... 9

Authorities on ‘without reasonable excuse’.............................................................................. 9
Parties’ submissions................................................................................................................... 13
Analysis of ‘without reasonable excuse’ in s 36(4) of the Act............................................... 14

Conclusion......................................................................................................................................... 20

HIS HONOUR:

Introduction and summary

These reasons concern the elements of the offence of refusing to take an oath or make an affirmation contrary to s 36(4) of the Major Crime (Investigative Powers) Act 2004 (‘Act’);[1] the onus of proof in relation to the ‘defence’ of ‘reasonable excuse’ in s 36(4); and the meaning and scope of that defence.
[1]Section 36 of the Act is set out below at [14].

These reasons arise from a pre-trial application by the parties under s 199(1)(c) of the Criminal Procedure Act 2009 (‘CP Act’) for a ruling to clarify the above issues prior to the empanelment of a jury.

For the reasons that follow, I have concluded as follows:

(a) The elements of the offence are those set out at [16] below.

(b) The legal onus lies on the Accused to prove on the balance of probabilities that he had a reasonable excuse for refusing to take an oath or make an affirmation.

(c) A witness appearing at an examination by the Chief Examiner can be held to have a reasonable excuse for refusing or failing to take an oath or make an affirmation for the purposes of s 36(4) of the Act on the basis that he or she fears that he or she will be physically harmed if he or she takes an oath or makes an affirmation. However, in order for such a fear to qualify as a reasonable excuse, it must satisfy the requirements set out at [49] to [51] below.

(d) Subject to the qualifications set out at [62] below, the evidence upon which the Accused proposes to rely is incapable in law of establishing a reasonable excuse.

Procedural history

The Accused has made various applications to this Court in relation to the alleged offence under s 36(4) of the Act. These reasons should be read in…

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 Debono

Details

AGLC: R v Debono [2013] VSC 408
Case: [2013] VSC 408
Decision Date: 10 April 2013

CaseChat Overview and Summary

In the case of R v Debono, the respondent, Debono, was charged with refusing to take an oath or make an affirmation in accordance with section 36(4) of the Major Crime (Investigative Powers) Act 2004. The matter was brought before the court where the respondent asserted that he had a reasonable excuse for not complying with the requirement to take an oath or make an affirmation. The court was required to determine whether the respondent's evidence could constitute a 'reasonable excuse' under the statute.

The court needed to address the interpretation of the phrase 'without reasonable excuse' as used in section 36(4) of the Major Crime (Investigative Powers) Act 2004. The respondent argued that the evidence he intended to present was capable of constituting a reasonable excuse for his refusal. The court's task was to assess the respondent's claim by examining the nature of the evidence and its potential relevance to the statutory phrase.

The court concluded that the evidence presented by the respondent was insufficient to constitute a reasonable excuse for his refusal to take an oath or make an affirmation. The court held that the evidence did not align with the statutory requirements and did not provide a valid basis for a reasonable excuse. Consequently, the respondent's appeal was dismissed, and the lower court's decision was upheld.

As a result of the court's decision, the appeal brought by Debono was dismissed, and the conviction and sentence imposed by the lower court were affirmed. The court did not find that the respondent's evidence could constitute a reasonable excuse under section 36(4) of the Major Crime (Investigative Powers) Act 2004.

Orders