R v QX - [2015] VSC 784

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 146

THE QUEEN (on the application of THE CHIEF EXAMINER)	Applicant
v
QX	Respondent

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	3,4 June 2014
DATE OF JUDGMENT:	25 February 2015
CASE MAY BE CITED AS:	R v QX
MEDIUM NEUTRAL CITATION:	[2015] VSC 784

Charge: Contempt of the Chief examiner s 49 (1) (b) without reasonable excuse refusal to answer questions.

Section 49(1)(b) – Elements of the offence – Onus of proof – What constitutes reasonable excuse.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sharp	Office of the Chief Examiner
For the Respondent	Mr S Johns	Robert Stary Lawyers Geelong

HER HONOUR:

The alleged Offence

On 15 April 2013, I made a coercive powers order pursuant to s 8 of the Major Crime (Investigative Powers) Act 2004 (‘the Act’) in relation to two organised crime offences, both alleged attempted murders.

On 18 July 2013, the Chief Examiner issued a witness summons to the respondent pursuant to s 15 of the Act, requiring the respondent to attend for examination before the Chief Examiner on 30 July 2013 and from day-to-day unless excused or released from further attendance to give evidence in relation to the organised crime offences.

On 19 July 2013, the witness summons, together with a confidentiality notice and a notice headed ‘Notice of important information about examination hearings’, was served personally on the respondent. The respondent attended before the Chief Examiner in answer to the witness summons on 30 July 2013. The matter was adjourned until 6 August 2013 and on that date further adjourned to 20 August 2013 by request of the respondent.

On 20 August 2013, the respondent again appeared before the Chief Examiner and was represented. During the hearing the respondent was asked a series of questions and provided answers as follows:[1]
[1]Page 64 – 65, transcript in confidence 2O August 2013
Chief Examiner:        Now, QX, prior to Date 1 had you had dealings with a man called CB?
QX:I don’t wish to answer any questions.
Chief Examiner:        Did you know that CB lived at an address at Address 1
QX:I don’t wish to answer any questions.
Chief Examiner:        And prior to Date 1, had you been to the premises of CB at Address 1, on a number of occasions?
QX:I don’t wish to answer any questions, I’m sorry.
Chief Examiner:        Alright. QX, on Date 1 did you see what you believed to be firearms at the premises of CB at Address 1?
QX:I don’t wish to answer that question.
Chief Examiner:        Did you observe actions in relation to CB on Date 1 when you were in his presence which suggested that a motor vehicle used in the attempted murder of AB was a motor vehicle which was associated with CB?
QX:I don’t wish to answer that question.
Chief Examiner:        Did you observe on Date 1 events and hear conversations, which led you to the…

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 QX

Details

AGLC: R v QX [2015] VSC 784
Case: [2015] VSC 784
Decision Date: 25 February 2015

CaseChat Overview and Summary

The matter before King J was an application by the Chief Examiner to the Supreme Court for an order that the respondent, QX, be punished for contempt of the Chief Examiner. The Chief Examiner alleged that the respondent had refused to answer questions relevant to the subject matter of the examination, without reasonable excuse. The offence was alleged to have occurred on 20 August 2013. The respondent had been summoned to give evidence before the Chief Examiner in relation to two organised crime offences, both alleged attempted murders. The respondent had previously been asked by a police officer to provide a statement of the information he possessed, but he had refused to sign a statement, as he was fearful for his safety and that of his family. The Chief Examiner had warned the respondent of his obligations and reminded him of the non-publication order that had been made in his favour. The Chief Examiner had made a ruling in relation to the application for a non-publication order, which the respondent had not appealed. The Chief Examiner had adjourned the matter to allow the respondent to consider his position and to allow the police to consider what, if any, witness protection could be provided to the respondent. The matter resumed on 20 August 2013 and the Chief Examiner again asked the respondent to answer the questions relevant to the subject matter of the examination, but the respondent refused to answer those questions. The Chief Examiner then issued a certificate of charge in relation to the contempt. The preliminary issue that the court considered was whether the onus of proof was on the respondent to establish a reasonable excuse for his failure to answer the questions, or on the Chief Examiner to prove, beyond reasonable doubt, that there was no reasonable excuse. The court held that the onus of proof was on the Chief Examiner to prove that there was no reasonable excuse, as the words ‘without reasonable excuse’ formed part of the definition of the grounds of liability and not an exception to the offence. The court then considered whether the Chief Examiner had proved, beyond reasonable doubt, that the respondent did not have a reasonable excuse. The respondent had provided information to the police that he was in fear of his safety, if it became known that he was cooperating with the authorities. The Chief Examiner had not provided the respondent with sufficient information to alleviate his fear and had not explained to him that the information he gave at the hearing could not be used as the basis of a prosecution. The court held that the respondent had a reasonable excuse for refusing to answer the questions and dismissed the application.

Orders