R v Michael (a pseudonym) - [2020] VSC 162

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…

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 Michael (a pseudonym)

Details

AGLC: R v Michael (a pseudonym) [2020] VSC 162
Case: [2020] VSC 162
Decision Date: 8 April 2020

CaseChat Overview and Summary

The case of R v Michael, a pseudonym, arose from the respondent's refusal to answer questions under examination pursuant to the Major Crime (Investigation Powers) Act 2004. The central issue before the court was whether Michael had a reasonable excuse for not answering questions posed by the Chief Examiner. The dispute came before the Victorian Supreme Court, which was tasked with determining the validity of Michael's refusal and the applicability of the relevant statutory provisions.

The court needed to ascertain whether Michael's apprehension of physical harm constituted a reasonable excuse under the Act. The primary legal issue was whether the fear of physical harm was objectively reasonable and whether this justified Michael's refusal to answer questions. The court also had to consider relevant case law, particularly DPP v Debono, which established the standard for assessing the reasonableness of a claimed excuse under the Act.

In delivering the judgment, the court found that Michael's fear of physical harm was not based on any objective evidence. The court emphasised that the excuse must be reasonable in the context of the statutory provisions and relevant case law. Given the absence of an objective basis for Michael's fear, the court concluded that his refusal to answer questions was not justified. Consequently, the court found Michael in contempt of court under the Major Crime (Investigative Powers) Act 2004.

The final orders of the court reflected its findings. Michael was found in contempt of court, and the court issued appropriate penalties consistent with the statutory framework and legal principles governing such cases.

Orders