R v Michael (a pseudonym)
[2020] VSC 162
•8 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0216
| THE QUEEN (on application of the Chief Examiner) | Applicant |
| v | |
| AHMAD MICHAEL (a pseudonym) | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 December 2019 |
DATE OF JUDGMENT: | 8 April 2020 |
CASE MAY BE CITED AS: | R v Michael (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 162 |
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CONTEMPT – Examination under Major Crime (Investigation Powers) Act 2004 – Refusal to answer questions put by the Chief Examiner – Whether respondent had a reasonable excuse for refusing to answer questions – No objective basis for fear of physical harm – Contempt found – DPP v Debono [2013] VSC 408 – Major Crime (Investigative Powers) Act 2004 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F. Holmes | Office of the Chief Examiner |
| For the Respondent | Mr S. Moglia | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
On [redacted], the respondent was charged with contempt brought by a written Certificate of Charge issued in the name of the Chief Examiner pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’).
The applicant alleges that the contempt occurred on [redacted] when the respondent refused to answer questions asked by the Chief Examiner’s delegate (‘the Examiner’). The respondent does not dispute that he refused to answer questions during the examination, but submits he had a reasonable excuse for doing so.
Background and circumstances to the offending
On [redacted], Coghlan J made a coercive powers order in relation to [redacted]. The order included [redacted]. That order was varied and extended on [redacted], for a period of 12 months.
On [redacted], [redacted] and [redacted], the Chief Examiner issued custody orders pursuant to s 18 of the Act requiring the respondent to attend to give evidence in relation to [redacted]. The respondent was in custody at this time.
The respondent was brought before the Examiner on [redacted]. During the examination on [redacted], the respondent refused to answer further questions put to him on the basis that he had fears for his personal safety. On that same day, the respondent was charged with contempt of the Chief Examiner and brought before this Court.
The evidence before the Court is contained within the affidavits of [redacted], both dated 25 October 2019, to which are annexed transcripts of the proceedings that occurred on the relevant dates before the Examiner. No further evidence was put before the Court.
There were three examinations in total and, on each occasion, the respondent was sworn and gave some evidence. It is alleged that the contempt took place during the third examination.
Contempt of Chief Examiner
The applicant applies for the respondent to be dealt with for contempt of the Chief Examiner pursuant s 49(1)(b) of the Act, which 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 …
As above, the respondent asserts he refused to answer questions on the basis that he had a reasonable excuse.
The respondent’s refusal to answer questions
The refusal to answer questions occurred on [redacted], following a series of questions about the circumstances of the respondent’s role and knowledge in the alleged offending being enquired into. The following exchanges occurred:
[redacted]
MR MICHAEL: Look, I’ll be honest with ya, I just want to get back to wherever I came from.
EXAMINER: I know. I’m very aware of that. But this will - the sooner you can - all the more responsive you can be with me and the less time you can take to answer my questions and the fewer “I don’t knows” that you can throw at me the sooner we will be able to conclude this examination.
MR MICHAEL: I feel like every time [redacted] you adjourn me again and again so ---
………
MR MICHAEL: I’m not gunna answer any more questions. I want to go back where I came from.
EXAMINER: Mr Michael, are you telling me you don’t want to answer any questions about that particular issue at this point in time?
MR MICHAEL: I’m not gunna answer any more questions because I want to get back to my unit before - because I feel like something is gunna happen. I feel like people know where I am so want to get back as soon as possible. Thank you.
EXAMINER: Mr Michael, I’ll - well I will remind you….
MR MICHAEL: I understand where you’re coming from. You will charge me if I’m not gunna cooperate - contempt or whatever it is you told me before. I’m not gunna answer any more questions.[1]
[1]Transcript at P-27-29.
Following this exchange, and further exchanges along the same lines, the respondent was given the opportunity to reconsider his position. The respondent declined, and was subsequently charged with contempt.
The respondent emphasises that, although his refusal occurred during the third examination, the transcript of all examinations reveal that he had previously raised concerns about his safety. Accordingly, it is submitted that the refusal should be evaluated in the whole context of the three examinations.
Discussion of the applicable law
The respondent has the evidentiary burden of adducing or identifying evidence of a reasonable excuse.[2] The onus then falls on the applicant to disprove this beyond reasonable doubt.[3]
[2]The Queen v DA; The Queen v GFK [2016] VSCA 325, [47].
[3]Ibid.
A person may have a reasonable excuse for not answering questions if he fears that he will be physically harmed.[4] This is the basis upon which the respondent makes his claim of reasonable excuse.
[4]R v Debono [2013] VSC 408, [48] (‘Debono’).
As set out by Kyrou J in R vDebono,[5] the following conditions must be satisfied for fear of harm to constitute a reasonable excuse:
[5][2013] VSC 408 [49] – [51].
(a) There must be an objective basis for the fear of physical harm, beyond a mere subjective fear.
(b) The objective basis for the fear must be reasonable in the circumstances of the particular case. This may be satisfied where there is communication or conduct by another person which is objectively capable of conveying a threat of harm to the witness. However, this will not be sufficient if the risk of physical harm is objectively remote, negligible, imaginary or insubstantial.
(c) There must be a nexus between the fear of physical harm and the refusal to answer questions. This may be satisfied if another person threatened a witness that he would be physically harmed if he answered questions.
In addressing the question of what amounts to a reasonable excuse, the Court was referred to the following observation of Burns J in Callanan v Witness M:[6]
It should also be said that the mere assertion by a witness that he or she fears retribution if a question is answered will be most unlikely, without more, to sustain a claim of reasonable excuse. Such assertions are easily made but may not, in any given case, be easily disproved. Because of the inherent likelihood that such assertions will be made as a justification for failing to cooperate in the investigation of organised crime, it would seriously undermine the important public policy objectives of the Act if such assertions were to be generally regarded as enough to excuse compliance with the provision. Of course, that is not to say that a witness is under any obligation to adduce evidence in support of his or her claim beyond what they have said to the presiding officer at the hearing. However, there must be real substance to the witness’ claim, however expressed or supported; reliance on a vaguely articulated or un-particularised threat will rarely suffice.
[6][2017] M QSC 2, [39] (citations removed).
Further, the applicant notes that the legal environment and purpose of the provision are significant considerations in determining what constitutes a reasonable excuse.[7] It submits that a fear about safety in a “protected forum”, such as an examination before the Chief Examiner, could only constitute a reasonable excuse in a rare case.[8]
[7]E.g Taikato v R (1996) 186 CLR 454; Debono, [48]; Callanan, [36].
[8]Z v New South Wales Crime Commission [No 2] [2005] NSWSC 1388, [77].
The Court was also referred to the cases of Crime and Misconduct Commission v WSK; Crime and Misconduct Commission v EDC,[9] Z v New South Wales Crime Commission (No 2)[10] and R v Garland[11] as relevant authorities on reasonable excuse. The decision of Zv New South Wales Crime Commission (No 2) was exampled as a rare case where fear about personal safety constituted a reasonable excuse. The applicant submits that the decided authorities support the requirement that there must be an objective basis for the fear of physical harm, beyond subjective fear.
[9](2013) 229 A Crim R 286.
[10][2005] NSWSC 1388.
[11](1997) 95 A Crim R 264.
The respondent’s submissions
It is conceded that the respondent refused to answer questions put to him by the Examiner during the third examination. He emphasises that such refusal should be considered in the context of the previous two examinations, in particular, the circumstances of his transfers from prison to the Office of the Chief Examiner. The respondent further concedes that the Examiner did not conclude he had a reasonable excuse. However, he contends that the Examiner acted in a manner consistent with a concern for his safety in changing the basis of the non-publication direction when he expressed concerns.
The respondent identified the following factors in submitting he had a reasonable excuse for refusing to answer questions:
(a) the conduct of the authorities who brought him to his examinations on [redacted] and [redacted];
(b) the cumulative effect of that conduct;
(c) the attention brought to him by that conduct;
(d) the knowledge and/or belief of other prisoners that he was being examined or assisting authorities;
(e) the resultant compromise to his safety; and
(f) subjectively, his own fear for his safety.
The respondent relies on his evidence given on oath, as it appears in the recordings and transcripts from the three examinations, to establish reasonable excuse. The relevant evidence can be summarised as follows:
[redacted] examination
On [redacted], the respondent attended the first examination which ran from the morning into the afternoon. It is noted that he took the oath and did not refuse to give evidence on this occasion. Following the conclusion of the examination at 4.00pm, the respondent raised concerns with the Examiner about being noticeably absent from prison all day and how this would be perceived by other prisoners, particularly due to [redacted] and attitudes held within the prison. He was also concerned about how he would explain his lengthy absence to other prisoners. The Examiner made a non-publication direction to prevent disclosure of the respondent’s examination, though not on the basis of safety concerns.
[redacted] examination
On [redacted], the respondent was escorted [redacted] to attend a further examination. It is submitted that this was an unusual practice, [redacted]. It is also noted that [redacted]. As such, the respondent contends that [redacted] on this occasion inferred that he was attending a forced hearing.
The respondent raised this concern immediately at the commencement of the examination. It is submitted that the Examiner acknowledged the risks he faced and their potential impact on his ability to give evidence. The applicant contends that the Examiner did not acknowledge these risks per se, but rather, the respondent’s subjective concerns about what would happen if he was not taken back to prison within a timely fashion. The Examiner later indicated there would be consideration of the manner in which he had been transported.
On this occasion, the respondent also raised that low-level prison staff, who were not named in the non-publication direction, appeared to have been aware that he was being taken to an examination. In response, the Examiner reviewed the non-publication direction and amended it to impose specific limits to disclosure amongst prison staff.
The respondent then took the oath and proceeded to answer questions. After some time, he voiced concerns about whether his absence and the circumstances surrounding it would raise suspicions amongst his fellow prisoners. The respondent submits that the Examiner agreed to truncate the examination to allow him to return to prison earlier to avoid suspicion. It is not contended that this implies that the Examiner accepted the respondent’s fears as a reasonable excuse. Rather, it is submitted that the Examiner’s accommodation to his concerns substantiates his argument that such concerns were not fanciful or flighty.
On the other hand, the applicant submits that the Examiner shortened the examination to avoid the respondent’s evidence being compromised as a result of his subjective concerns, rather than to avoid suspicion.
On this occasion, the Examiner made a further non-publication direction so as to avoid disclosure of the examination.
[redacted] examination
On [redacted], the respondent was observed [redacted] when escorted [redacted]. [redacted. The cumulative effect of this conduct initially led the respondent to [redacted]. It is submitted that the respondent’s refusal is consistent with him being scared due to the circumstances of the disclosure which he perceived had occurred.
The respondent raised these facts and his concerns with the Examiner. He also informed her that fellow prisoners had asked questions regarding where he was being taken, and that he thought he was ‘under suspicion’. Further, the respondent reported incidents of violence in custody against prisoners who were perceived to have answered questions in examinations or made statements to police. He noted that, as a result of [redacted], he was known by serious offenders in prison who had a level of knowledge or familiarity with examination-type forced hearings. It is submitted that the respondent’s overall conduct is consistent with his safety concerns being genuine.
Once again, the Examiner discussed whether the non-publication direction should be amended on this occasion to address his concerns.
The respondent did not refuse to be sworn, but subsequently refused to answer any further questions.[12] It is noted that he did so with due deference and respect. The Examiner agreed to change the basis for the non-publication direction after his first refusal. The respondent persisted with his refusal, offering to return for examination after his release from prison, [redacted], when his concerns about being taken from prison were no longer applicable.
[12]Transcript at p.29, and following.
The respondent submits it is of some significance that the Examiner appeared, to some extent, to act on his concerns for his safety. Accordingly, it is contended that the Court can conclude that such conduct is consistent with not taking a fanciful approach to his refusal.
Further, it is submitted that the respondent should not have to point to actual threats and violence against him, as his concerns regarding harm against informants are reasonable. This is on the basis that he was transported in a way which might be expected for an examination, on more than one occasion in front of other prisoners, as well as his personal knowledge of others being harmed in custody. Further, it is of significance that he [redacted]. There is also evidence before the Court that there was a disclosure to prison staff contrary to a direction made by the Office of the Chief Examiner.
The respondent submits that his subjective apprehension is relevant, though not determinative, of reasonable excuse. It is contended that the question of reasonable excuse must be considered in all the objective circumstances, and not simply decided by whether there was an actual assault or threat to the respondent. He points to the unusual way he was transported [redacted] as giving rise to an objective risk of him being seen as a ‘tainted’ prisoner.
The respondent concedes he demonstrated a degree of reticence when answering questions, as evidenced by transcript of the examinations. However, it is submitted that a suspicion that he was avoiding answers would not be a sufficient ground for a finding of contempt.
The applicant’s submissions
The applicant’s case is that the respondent’s fear of harm cannot constitute a reasonable excuse in this case as it was based on no more than mere speculation and supposition.
It submits that the claim of reasonable excuse should be considered in light of the non-publication direction, as well as the respondent’s claimed fear being of the kind authorities reject as valid, namely one based on generalised threats and previous harm inflicted on other persons by unknown assailants. Further, it is submitted that the respondent has advanced no evidence to support a nexus between those fears and his answering of questions before the Examiner.
The applicant further questions the veracity of the respondent’s fears on the basis that they were generic and related to his perception of what other prisoners would think of his absence, rather than any real or specific threats levelled against him. It is further submitted that, in order for his fears to constitute a reasonable excuse, there must have been an objective basis for the respondent to believe that his evidence would come to the attention of those who may harm him. It is argued that there was no objective basis for the respondent to believe that the confidentiality mechanisms attending his examination would fail, particularly in light of the non-publication direction. Accordingly, the applicant submits that the respondent has not discharged his evidentiary burden.
In response to the [redacted], the applicant contends that the respondent was not transported in a different manner from a person in his position who was getting a urine screen or going to a medical appointment and being transported in a high-security manner.
In further oral submissions, it was submitted that, irrespective of how the respondent was transported on the date of the [redacted] examination, it did not result in any actual suspicion or threats from other prisoners. The applicant noted that the respondent was unable to point to any specific threat or suspicion being raised by anyone other than asking “where were you?”. As such, the applicant contends that the resultant compromise to his safety and fear for his safety was speculative and subjective, and had no objective basis.
Further, the applicant points to the [redacted] break between the second and third examinations, during which nothing had been levelled at the respondent that would cause an objective concern.
The applicant also notes that the Examiner returned the respondent to prison earlier in the [redacted] examination to accord with the specific time frame he had informed her would be appropriate for a urine screen. During the [redacted] examination, the respondent indicated that he had not used that excuse at all, [redacted]. The applicant contends that this conduct in and of itself is a cause for suspicion, and something of entirely the respondent’s own doing, which flies in the face of him being actually concerned for his own safety.
Further, the applicant submits that the respondent’s answers were not of great assistance and the Examiner did not believe he was telling the truth or the whole truth in respect of the information he gave. The applicant refers to numerous parts of the transcript, including how the examiner asked and re-asked the respondent questions to test the veracity of his answers, the respondent changing his evidence over the examination and the Examiner stating at points “I think it’s time for you to start being more truthful with me …”.[13]
[13]See for instance the September examination at T39, and the October examination at T27.
The applicant contends that the respondent’s refusal to continue occurred in the context of the Examiner making clear that he needed to answer truthfully or there would be ramifications. It is submitted that when the questioning became too close for comfort, he acted to bring the examination to an end by refusing to answer any further questions.
It is submitted that the respondent’s claim of reasonable excuse can be weighed against the Examiner reminding him that none of the information provided could be used against him. The applicant contends that the respondent’s refusal to continue answering questions occurred in the context of him ending the examination at the point where, if he kept answering, he would expose his involvement in the matters under examination. While acknowledging that this may be a relevant circumstance in assessing whether his concerns were genuine, it is submitted that it does not amount to a reasonable excuse.
Further, the applicant submits that the respondent’s refusal to answer further questions can be looked at with scepticism as the Examiner, during the October examination, had explored his fears and made every endeavour to assure him that the environment he was in allowed for his concerns. Further, the Examiner also assured him that the protections afforded by the non-publication direction were within her powers and did everything within those powers to indicate that he did not have a reasonable excuse for refusing to answer further questions.
Moreover, the applicant submits the respondent’s offer to provide later assistance when released from prison is simply a deflection of what he was being asked about at the time. Further, while it is not contended that the respondent was wilful in refusing to answer questions, it is noted that the absence of wilfulness does not establish reasonable excuse.
The applicant submits the authorities draw a distinction between mere supposition and a proper claim of reasonable excuse. As above, the applicant referred to Callinan v Witness M and relied on the observations of Burns J in stating that ’the mere assertion by a witness that he or she fears retribution if a question is answered will be most unlikely, without more, to sustain a claim of reasonable excuse’.[14] The applicant proposes that the circumstances in Callinan are analogous to that in the present case, on the basis that there is nothing beyond the respondent’s bare assertions that reaches the next level of showing an actual threat or level of suspicion.
[14][2017] M QSC 2, [39].
Discussion
The respondent does not challenge the accuracy of the recorded proceedings before the Examiner. He also accepts that, during the examination on [redacted], he refused to answer the questions set out above in the extract of the proceedings.
The issue for determination is whether the respondent had a reasonable excuse for his refusal. In seeking to establish his claim of reasonable excuse, the respondent relied on the matters contained within the affidavit material provided by the applicant, supplemented by written and oral submissions made on his behalf.
The applicant specifically conceded that the Court can act on the basis of the respondent’s subjective belief as expressed to the Examiner. However, it submits that there is insufficient substance in the respondent’s expressed concerns to reach the threshold of reasonable excuse.
I have identified the matters relied on by the respondent above, which include the following:
(a) On the first occasion, his lengthy absence from prison coupled with the difficulty explaining to fellow inmates who asked where he had been;
(b) On the second occasion, the unusual [redacted] manner in which he was escorted and transferred by [redacted]. This prompted concerns that he was being singled out or receiving special attention, [redacted]. Additionally, there was an awareness by lower level prison staff that he was attending a coercive hearing. Coupled with the length of his examination, it was said that such circumstances would raise suspicions in the minds of others, in response to which the Examiner shortened the examination period; and
(c) On the third occasion, further issues with his transfer [redacted], during which [redacted]. It was noted that this treatment was unusual compared to prisoners transported to court hearings.
The respondent argues that the impact of these factors should be assessed in combination with each other, and when considered collectively, amount to sufficient objective factors supporting his claim of reasonable excuse. Furthermore, he points to other factors that should also be considered, including that he [redacted].
It is to be observed that the respondent does not assert he has been threatened or intimidated in any way connected to his appearances before the Examiner. Rather, his case is put on the basis of a fear that his safety could be compromised. It appears this stated fear was not supported by actual occasions of threats or intimidation by any person towards him.
In Debono, Kyrou J considered the meaning of ‘reasonable excuse’ in the context of a charge laid under s 36(4) of the Act. As noted above, the approach outlined by Kyrou J requires that there is an objective basis for the fear of physical harm, that the fear is reasonable in the circumstances of the particular case, and that the fear existed at the time of the refusal and is relevant to the refusal.[15]
[15][2013] VSC 408 [49]-[51].
The circumstances in Debono are informative as to the circumstances that apply in the present case. Some of the relevant circumstances include:
(a) The accused was a prisoner when he was served with documents requiring him to attend before the Chief Examiner;
(b) As a prisoner, he lived in an environment where it was notorious that prisoners who speak with or co-operate with police are placed at risk of harm by other prisoners;
(c) The manner in which the accused was served with a series of custody orders and other documents inevitably disclosed to prisoners the fact that the accused was wanted for questioning by the police;
(d) A breach of confidentiality provided for in the Act inevitably exposed the accused to danger;
(e) The prison governor attended the communal area of the prison and, in the presence of twenty prisoners and staff, referred to the accused having been served with coercive papers and stated that he should not have them for his own safety;
(f) When transported on two occasions, the accused had a special escort and was shackled on his hands and feet, thereby drawing him to the attention of others; and
(g) When being examined, the accused complained about the risk to his safety.
In Debono, it was advanced that the combined effect of the proposed evidence was such as to induce in the accused a reasonable fear that any cooperation with authorities would be disseminated within the prison system, thus increasing his exposure to danger.
Applying the factors above, Kyrou J concluded that the evidence proposed to be led at the trial of the accused was incapable in law of establishing a reasonable excuse. His Honour concluded that there was no objective basis for the accused’s alleged fear of death or serious injury.
Further, His Honour went on to express his views that:
Even if the proposed evidence, relevantly the factors set out above, could satisfy the jury that there was an objective basis for the accused alleged fear the Proposed Evidence is incapable of satisfying the jury that the fear was reasonable in the circumstances of the case. This is because there is nothing in those circumstances that could cause a reasonable person to objectively fear physical harm by or at the behest of any particular person or identifiable group of persons. There is nothing in the proposed evidence to indicate that anyone threatened the Accused or even expressed any disapproval in connection with his three appearances before the Chief Examiner. A generalised subjective concern about being at risk from the prison population as a whole would be no more than a remote, negligible, imaginary or insubstantial risk.[16]
[16]Ibid at [59].
In my opinion, the principles, reasoning and views expressed by Kyrou J are apposite to the present application. Taking all matters into account, Debono involved a starker and more compelling set of circumstances than those faced by the present respondent. However, the assessment to be made by this Court involves determining whether the present set of circumstances, when assessed in combination, were capable of establishing an objective basis for the fear of physical harm in respect of this respondent. If so, the Court is then required to assess whether such fear was reasonable in the circumstances.
It must be acknowledged that the arrangements for the respondent’s transport to and from the examinations were far from perfect. They may well have been unsettling in circumstances where he regarded himself as being treated differently and potentially raising questions in the mind of others. I note that there were questions expressed in regards to the respondent’s whereabouts. The applicant did not dispute that, when viewed together, these features were out of the ordinary.
I have also taken into account that, on a number of occasions, the respondent expressed concerns for his safety and the Examiner took steps to alleviate those concerns.
On the other hand, and of significant importance, the respondent did not suggest that there had been any direct or indirect threats, intimidation or actual instances of violence against him by fellow inmates. Rather, I am of the opinion that the respondent expressed a generalised subjective concern about being at risk from the general prison population, which was, in the circumstances, no more than an ‘insubstantial risk’ which lacked objective foundation.
It is also of significance that the Examiner took some steps which appeared designed to allay the respondent’s concerns. This included shortening the duration of the second examination and making adjustments to the non-publication directions. The Examiner appears to have acted with caution and some care for the welfare of the respondent. I consider that it was entirely appropriate to do so.
Whilst not forming a factual basis for a reasonable excuse, it is submitted that the Examiner’s actions tend to suggest that the respondent’s concerns were not taken to be flighty or fanciful. Further, the respondent was entitled to conclude that, at least to some extent, his concerns were not falling on deaf ears.
Finally, it might be observed that nothing before this Court suggests a possibility that the confidentiality provisions put in place around the examinations would fail. In my opinion, this factor adds weight to the argument that the position taken by the respondent was a subjective one.
As above, in Z v New South Wales Crime Commission (No 2), it was observed that the nature and purpose of the hearing must be considered. Johnson J concluded that ‘it would be a rare case where fear of reprisal would constitute a reasonable excuse for refusing to answer a question in such a protected forum’.
In my opinion, an observation of rarity does little to assist the resolution of the matter to be decided. The frequency or infrequency of past cases involving successful or unsuccessful claims of reasonable excuse does not inform the approach to be taken in a case such as the present. I prefer the approach of Kyrou J in Debono, which commands an evaluation of the facts and circumstances of each case, rather than an approach based on frequency or infrequency.
Conclusions
In weighing all the evidence and submissions, I am not satisfied of an objective basis for the respondent’s claim that he had a reasonable excuse for refusing to answer the Examiner’s questions. In my opinion, the claim of reasonable excuse was grounded in little more than his subjective beliefs as to what he feared might happen. There was little, if any, objective support for those beliefs.
In all the circumstances, I am satisfied beyond reasonable doubt that the charge has been proven.
I shall hear the parties as to the appropriate disposition of the contemnor.
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