R v QX

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 view that you believed that the motor vehicle used in the attempted murder of AB had come from CB’s premises at Address 1?
QX:I don’t wish to answer the question.
Chief Examiner:        Did you observe on Date 1 two persons present at the premises of CB who you inferred were involved in the destruction of the motor vehicle used in the attempted murder of AB?
QX:I don’t wish to answer that question.
Those are the questions and answers alleged to constitute a charge of contempt against the Respondent.

The Chief Examiner having completed the questioning then gave the respondent an opportunity to provide an explanation and referred to the elements of the offence in the following terms[2]:
[2]Page 65 - transcript in confidence 2O August 2013
Chief Examiner:       All right. Well, QX, in my opinion, I’ve asked you
  questions relevant to the subject matter of the
  examination hearing and you have refused or failed to
  answer those questions. It’s a matter for a court, when
  considering this matter, to consider the elements of the
  offence, in order, and also as part of that, the issue of
  reasonable excuse. Do you want to say anything at this
  stage in relation to the reasons why you have refused to
  answer.
QX:  Yes, I’ve already stated that last time I was here.
Chief Examiner:       All right. Well, do you want to do it again?
QX:Well, as I said, I worry about my safety and, as I’ve said, I’ve had a bullet go through my garage approximately a week after the events of Date 1 and numerous threats since, via telephone messages and voice messages.
The Act relevantly provides:[3]
[3]S 49 (1)(b) Major Crime (Investigative Powers) Act 2004
49 Contempt of Chief Examiner
(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—
(a)…
(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; or
…

Following this exchange, and pursuant to s 49(2) of the Act, the Chief Examiner issued a written certificate charging the respondent with contempt. In this certificate, the Chief Examiner certified that he was satisfied that there was evidence that the respondent was in contempt of the Chief Examiner in that, during the examination hearing of the respondent, the respondent contravened s 49(1) of the Act in that he failed or refused, without reasonable excuse, to answer questions relevant to the subject-matter of the examination hearing.

The matter is heard by the Supreme Court pursuant to S10 of the Act:[4]
(10)A contempt of the Chief Examiners to be dealt with by the Supreme Court as if—
(a)the contempt were a contempt of an inferior court; and
(b)the certificate of charge were an application to the Supreme Court for punishment of the contempt.
[4]Section 49(10) Major Crime (Investigative Powers) Act 2004
In this proceeding, the applicant seeks an order that the respondent be punished by imprisonment or fine or both in respect of his alleged contempt of the Chief Examiner. The particulars of the alleged contempt include the exchange on 20 August between the Chief Examiner and the respondent set out above.

The background to the hearing

On 6 April 2012, Detective Senior Constable SV had a conversation with QX relating to CB including, certain aspects of his dealings with, and knowledge of, CB. QX requested that parts of the information relating to CB and AB that he provided to the officer on that day not be included in any final statement for signature. QX stated that at the time he was present and observed those various matters and discussions he was in serious fear for his life.[5] The statement signed on that date by QX detailed a drug dispute with CB and the fact that he was at CB house on the day of the shooting of AB. The affidavit further stated:[6]
QX refused to sign a statement that included any information about the AB shooting.
[5]Paragraph 2K of the affidavit of Detective Senior Constable SV, sworn 3 December 2013.
[6]Paragraph 4 of the affidavit of Detective Senior Constable SV, sworn 3 December 2013.
The affidavit continued:
5. ‘QX told me that he would cooperate and provide further information as requested. However, QX provided no further information and I was unable to locate him for some weeks following our meeting on 6 April 2012’.[7]
6. ‘After 6 April 2012, I made several appointments for QX to meet with me, but he failed to attend. QX did not mention any threats during our conversations in which we made those appointments. Nor did he mention any bullet hole in his garage.’[8]
[7]Paragraph 5 of the affidavit of Detective Senior Constable SV, sworn 3 December 2013
[8]Paragraph 6 of the affidavit of Detective Senior Constable SV, sworn 3 December 2013
During the hearing before me on 3 June 2014, SV, during cross examination, when asked to detail the other occasions on which he had made arrangements to meet the respondent, stated, that the information provided in his affidavit was incorrect. He said he did not have any other discussions in which he had arranged meetings, and that the only time he had any discussion with the respondent was on 4 April (the initial arrangement to meet), 6 April (the initial meeting and interview) and Date 2 (the arrest at Court). He stated that paragraph 6 of his affidavit was a mistake, and he was unaware how it came to be included[9]
[9]P 61-62 - Supreme Court Transcript 3 June 2014

Subsequent to that meeting of 6 April 2012 with SV, QX was arrested on at least two separate occasions by members of the Task Force (the task force charged with the investigation of AB’s shooting, of which Detective Senior Constable SV was then a member). The circumstances of those arrests, which I have detailed below, have caused me some concern, as to the legitimacy of the pressure applied to the respondent to make a sworn statement containing the ‘off the record’ information provided to SV.

A member of the Task Force had, on an unknown date in May 2012, attended at the premises of QX to again ask if he would sign a statement confirming the information he had already told the police, but which he had refused to include in his previous statement. It is unclear if, and if not, why, no approach was made to QX at his home, but QX was observed driving away from his home, and he was then intercepted by the officer from the Task Force. The officer requested QX to produce his licence, apparently for purposes of identification and, during that process, a small plastic bag of methamphetamine fell to the ground. QX was taken from his home in Area 2 suburbs to headquarters in St Kilda Road, for interview and charging in respect of the possession of a small quantity of methamphetamine as well as driving whilst unlicensed. QX was bailed to appear to at Melbourne Magistrates’ Court on Date 2. It was conceded that they are not matters that would normally occupy members of the Task Force, and that a person would usually be taken to the nearest police station if required to be arrested and often be charged on summons[10].
[10]P 65 - Supreme Court Transcript 3 June 2014

On Date 2, the return date for the possession and driving offences, Detective Senior Constable SV, together with Detective Senior Constable SK of the Task Force, attended at Melbourne Magistrates’ Court to speak to QX, once again in respect of requesting him to sign a statement relating to the information he had given to the police, but had previously refused, on at least two occasions, to provide in a sworn version.

Prior to attending at Melbourne Magistrates’ Court, Detective SV stated he had accessed the LEAP database to ascertain if there were any outstanding warrants in relation to the respondent. There was a warrant concerning driving matters. The officers determined they would execute that outstanding warrant upon QX at the Magistrates’ Court, on that date. QX was arrested and taken back to Police Station, where he was asked to sign a statement about the information he had provided to the police, a matter not related to his arrest on the outstanding warrant. In his affidavit SV, swore that the respondent declined to sign the statement, stating he had seen a relative of a high profile member of a different redacted organization in the court and that that person had observed the police talking to him.[11] Subsequently, in his evidence before this Court, SV said that the respondent said that he did not have the time to make a statement and had made an appointment to return in 3 days’ time to discuss the matter, but failed to attend, a matter not referred to in his affidavit.

The hearings

[11]Paragraph 7 of the affidavit of Detective Senior Constable SV, sworn 3 December 2013

In the affidavit of Detective SV at paragraph 9, he stated the impact upon the investigation of QX’s refusal to give evidence before the Chief Examiner in the following terms:[12]
Based on the information that QX provided to me on 6 April 2012, I believe that QX is an extremely important witness in the investigation of the AB shooting. QX can provide the Chief Examiner with crucial information regarding events that occurred after the AB shooting, including information about the people present at CB’s house around the time and subsequent to the AB shooting, and information about the disposal of the weapon or weapons and vehicle. (my emphasis)
[12]Paragraph 9 of the affidavit of Detective Senior Constable SV, sworn 3 December 2013
Earlier in his affidavit, Detective SV detailed the information that had been provided to him by QX, which QX had refused to sign in the form of a written, sworn statement. It included quite extensive matters such as the names of the persons who were present at CB’s premises after the AB shooting, the times at which they were present, what was said, what was done by those persons in his presence, information relating to certain items he observed, discussions and plans between the persons present at the nominated address and overheard by him, together with his belief as to what had taken place, what was going to take place and his observations, including disposal of weapons and vehicles[13].
[13]Paragraphs 2 (a) – (k), and3 (a) – (e) affidavit of Detective Senior Constable SV, sworn 3 December 2013.

On the first occasion at the hearing on 30 July 2013, the respondent was asked if he wished to have a legal practitioner present, he indicated he did and the matter was stood down for some time to enable him to arrange the services of a lawyer. An officer from Legal Aid attended and appeared on this occasion for the respondent. She sought and was granted an adjournment of the proceedings to enable her sufficient time to obtain instructions. The matter was adjourned until 6 August. Prior to it being adjourned, the Chief Examiner spoke directly to the respondent to remind him about his obligations in respect of confidentiality in the following terms[14]:
[14]Page 8-9, transcript in confidence 30 July 2013.

Chief Examiner:        When we get into the instructions which I am required to give you, it is highly probable that I will make a prohibition on publication or communication ---
QX:Yeah.
Chief Examiner:        --- which will, amongst other things, prohibit people from knowing of your mere presence here as a witness. All right. So I want you to understand that these are very serious matters that require your complete attention.
QX:I do understand that. It’s not something that I would be promoting to anyone because, you know, it’s fairly serious things and its people’s lives, yeah, namely mine and my families that would be at risk. So it is in my best interest to keep something like that quiet anyway.
Chief Examiner:        Alright. Well, that’s a very persuasive view and ---
QX:Well it’s no one else’s lives at risk here, you know what I mean? It’s mine and my families, so ---
Chief Examiner:        Fine, I understand that, QX, and we will discuss that on the adjourned date.

The matter resumed on 6 August 2013. The respondent was again represented by Ms McDonough from Legal Aid. The Chief Examiner commenced the proceedings by an explanation of certain legal matters, and concluded with the statement[15]:
[15]page 15 transcript in confidence 6 August 2013

Chief Examiner:        So there are two circumstances where I am required to give a direction. In my opinion there is no basis upon which I would believe that I am required to give a direction arising from circumstances which might prejudice the fair trial of a person who has been charged with an offence, however, there is the other issue of prejudice to safety or reputation. Now, QX, do you want to say anything in relation to that issue?
QX:Yes, I don’t wish to give any evidence as I am concerned for the safety of myself and my wife – my ex-wife and sons.
Chief Examiner:        Alright. What you’ve said there is two things: that you are – your present state of mind is that you do not wish to give evidence.
QX:That’s right.
Chief Examiner:        Alright. Well ---
QX:I’ve got – after – well in late November I’ve already had a bullet sort of put through my garage at home.
Chief Examiner:        Alright, well I think ---
QX:And I’ve had numerous sort of, threats and things since ---
Chief Examiner:        Alright. Sorry ---
QX:--- So – and it’s obvious that, you know this is in regard to the attempted murder of the a member of a redacted organization, so, as far as I’m – you know, as far as I’m concerned they wouldn’t have any issues or any worries of, sort of, going after me.
Chief Examiner:        Alright. Well ---

Ms McDonough then made an application for a non-publication order, pursuant to s 43(2) of the Act on the basis of the safety of QX and his family.

During the making of the application, counsel for QX submitted that a non-publication order should be made at that stage to enable QX to give evidence about his situation and his fears. The following exchange took place between the Chief Examiner and QX about his situation at that stage[16]:
[16]P 16-17 transcript in confidence 6 August 2013

Chief Examiner:        Yes alright. What your counsel has said is that whatever might be the position when you’re required to give evidence, which will be a little way down the track, she’s submitting that what might – whatever might be the case there should be in place a direction prohibiting the publication or communication of what takes place here and that I’m required to make such a direction because if I fail to do so, there might be prejudice to the safety or reputation of you or your family. Do you follow?
QX:I do, but that can be rescinded later – at a later stage, can’t it?
Chief Examiner:        It can be, yeah, but it can’t – well, it ---
QX:And what would be the purpose of me being here in the first place when I’ve already ---
Chief Examiner: Yeah. Well, I – just want to make it clear, the law is – as of recently – that if a direction is made pursuant to s 43(2) pursuant to those requirements and the position remains unaltered then I, as the Chief Examiner have no power to revoke or rescind that direction. Do you follow?
QX:Yes.
Chief Examiner:        However, Victoria Police can apply to a court and apply for the evidence to be released and the test to be applied there is whether it is in the interests of justice that the evidence be released.
QX:Yeah
………
Chief Examiner:        Alright. Well, I – so that – there used to be a process where we did exercise a power of revocation but we don’t anymore in those circumstances.
QX:Right.
Chief Examiner:        Alright. If, for example, the circumstances did change, then the Examiner, the Chief Examiner and myself – or the Chief Examiner and the Examiner rather, would have the power of revocation if there was a change in the circumstances. But in any event that’s – we all seem to be on the one page and you understand what the law is.

The Chief Examiner then explained to counsel and QX that the test to be applied in relation to that decision is whether a failure to do so might prejudice the safety or reputation of a person. He stated that in assessing risk he would have regard to the definition as explained in R v Seller & McCarthy[17] in which the Chief Justice stated:
The word might means a real risk as a distinct from one that is remote or fanciful.

Together with the decision in Smith v The Queen,[18] a Western Australian Court of Appeal decision, where the definition of might was held in those circumstances to connote at least a real possibility existing, based upon objective facts and circumstances.

[17][2013] NSWCCA 42.

[18][2007] WASCA 163.

The respondent, QX, was then affirmed and gave evidence before the Chief Examiner upon the application. He gave evidence that he understood what the Chief Examiner intended to ask him about, being the attempted murder of AB, and that his concerns related to the safety of himself and his immediate family. He told the Chief Examiner he had a wife from whom he was separated legally but with whom he currently still resided, that they had sons who resided in the same house as them.

He gave evidence that approximately a week after the attempted murder of AB, a bullet was fired through his garage door. He found it lodged in a small grinder. He also said that he had received other phone calls, messages and text messages of a threatening nature and he gave some examples, including one related to a voice message from a person unknown to him who wanted a price on getting some work done (the respondent being a tradesman). The caller did not hang up at the end of the message but left the phone open and what was recorded was a discussion between two males one of whom was connected with a redacted organization and they began to talk on how they were going to get him and discussions about going fifty/fifty on the money.

He gave evidence that his wife and his sons were aware of the threats and that his sons have become, what could be described as, hyper-vigilant. He said that he had had dozens of telephone calls from a couple of different people, threats related to being called a dog and that they can get him irrespective of him being in jail, out of jail, with the police, they knew where he lived and they were going to come to the house and take him to the club house. He stated that he had not told the police about these threats. He had not initially told the police about the bullet through the garage door, but had told Detective SV at a later point.

The Chief Examiner asked a series of questions of QX during that application, whilst he was under oath;[19]
[19]P 30 – 32 transcript in confidence 6 August 2013

Chief Examiner:      Well, just to make it clear, I’m not pressing you on the names at
  this stage, but which side of the fence are we talking about here?
  Are we talking about AB and the redacted organization who –
  who presumably would like to see those responsible for the
  attempted murder charged by the police, and your evidence
  might be important in relation to that (my emphasis)
  ………..
Chief Examiner:        Well, I really don’t agree. I think that it is relevant to the issue of – I don’t understand at the moment, and I think I don’t understand because it’s not been made clear, as to where these threats are coming from. Now – and I’m not asking for a specific name at this stage but the fact is that if it’s said or implied that it’s coming from organisations or the redacted organization then ---

QX: It’s a rival – rival to the redacted organization
........

Chief Examiner:        Alright. So QX, the point I was coming to was that it appeared to be, on the face of it, inconsistent with the evidence that you have given in the past, which you needn’t comment upon, that any threats would be coming from AB or the redacted organization. Do you follow?
QX:That’s right, I haven’t had any – as far as I know I haven’t had any threats from AB or anyone from – or any dealings with anyone from the redacted organization. The threats that I have had I believe come from the people that were trying to actually kill him.
Chief Examiner:        Well, they were ---
QX:And if they’re gonna go after – I believe if they’re gonna go after a member of the redacted organization’s in Australia, well, they’ll have no hesitation or any fears about going after me that could put them away for a few years. And I did state that to SV at the time when I spoke to him – might have been early 2012.
Chief Examiner:        Yeah, alright
……….

Chief Examiner:        Well, I accept that there is a strong possibility you don’t know anything about Date 3, but – so who are you – who’s concerned about you giving evidence in relation to the – and I’m speaking about generally here.
QX:Yes.
Chief Examiner:        Who’s concerned about you giving evidence which might be relevant to the conviction of those persons who were responsible for the attempted murder of AB on Date 1 (my emphasis)
QX:Who? I’m personally concerned, yeah, for myself and my family.
Chief Examiner:        But who else – who would be concerned about you giving that evidence? Do you have a ---
QX:Well, I believe that people that – that tried to kill him would be concerned, because I’d be putting them away. I mean if someone – if I was in their situation, which I’m not and I – I was a hit man or whatever, I’d – you would think that, you know, someone that was trying to put me away or had evidence to put me away, I’d be – I’d be out there searching for ‘em and knocking ‘em off. (my emphasis)
Chief Examiner:        So are you saying that it’s the persons who are involved in the attempted murder Date 1 who are responsible for the threatening phone calls and the voice mail messages?
QX:Well I’m not exactly 100 per cent sure on that, but I believe they could be, and associates of associates. I mean this sort of thing goes pretty deep.
Chief Examiner:        Well, QX, the persons who have made these threatening phone calls to you which you don’t wish to name, do you suggest that they’re associated with those who were responsible for the attempted murder of AB on Date 1
QX:Yes.

Counsel for QX re-examined at the conclusion of the Chief Examiner’s questions:[20]
Ms McDonough: When you told this court that you – you’re – sorry, you were asked by the Examiner whether you suggested that it was rival gangs to the Redacted organization who were making these phone calls and you answered yes.
QX:Yes.
Ms McDonough: Can you indicate are you certain about that or is that something that you are guessing or surmising?
QX:No, I know that for a fact.

[20]P 34 - transcript in confidence 6 August 2013

Mr Pucar submitted that, at that time, s 43(2) was not applicable, based on the statement and information in the possession of the police:[21]
I’d say that in relation to that application that the Victoria Police position may change should the applicant provide information during this examination which goes outside of the information he’s previously provided to Victoria Police in statement form. Essentially if the applicant were to provide the information the Victoria Police believes that he can, that Victoria Police would be in a position to concur with his application in relation to his safety or reputation, but at this point in time, that notion is not accepted based on what we know.
[21]P 37 - transcript in confidence 6 August 2013
It is difficult to comprehend precisely what was being submitted to the Chief Examiner, in that there appears to be some confusion in the submissions between statements and information. The respondent had already provided significant information to Victoria Police, albeit not in statement form.

Accordingly, as I understand the submission it was that, if the information he had provided previously to the police had been in the form of a sworn statement then the police would concur with his application in respect of his safety or reputation, but without that information being provided in the form of a written statement or under oath, they were not prepared to accept the issue of his safety as being one that would invoke s 43(2).

The Chief Examiner at the conclusion of the submissions found that it was appropriate to make an order pursuant to s 43(2) of the Act. He outlined in his ruling the test he was applying in the following terms:[22]
What I am considering at the moment is whether or not I should exercise a power or a requirement rather which is set out in sub-s 2 of s 43 of the Act which requires that I must give a direction under sub-s 1 if a failure to do so might prejudice the safety or reputation of a person. As I have indicated in the course of argument, the test which I am applying in relation to a consideration of this issue, in particular the meaning of the word “might”, is that there must be a real risk as distinct from what that is remote or fanciful, that is, a real risk that if I fail to do so, there might be prejudice to the safety or reputation of a person, or put a different way, that there is a real possibility that exists based upon objective facts and circumstances that if I fail to make such direction, there may be prejudice to the safety or – there might be prejudice to the safety or reputation of a person.
[22]P 38 - transcript in confidence 6 August 2013
The Chief Examiner concluded:
In my opinion, the circumstances of the present case are these:
That I have before me evidence on oath which indicates quite strongly that there is prejudice to the safety or reputation of the witness and his family and in those circumstances, I consider that I am bound by the requirements of sub-s 2 that I must make a direction on the basis that a failure to do so might prejudice the safety of the witness, QX, and members of his family.
Subsequent to the Chief Examiner’s ruling, he explained a variety of matters to the respondent pertaining to the hearing and the conduct of the hearing. The respondent was affirmed and confirmed that he did not wish to take part in the examination hearing. The respondent was reminded of the process that would occur if he refused, being the process relating to contempt charges and the Chief Examiner stated[23]:
[23]P 48 – 49 transcript in confidence 6 August 2013
Chief Examiner:        You understand that there is in place a prohibition on publication or communication which is designed to assist your concerns in relation to safety or reputation?
QX:  Yes.
Chief Examiner:        And that those – that prohibition on publication or communication would remain in place until it was removed, if it was removed, by a court deciding in the interests of justice whether or not that evidence should be released. (my emphasis)
QX:Yes.
Chief Examiner:        Alright.
Ms McDonough:       May I have leave to address you in relation to the situation?
Chief Examiner:        Yes. Yep go ahead.
Ms McDonough:       So QX’s situation is this, and I – he and I both like to be candid about it – and he is cognisant, because I have advised him, as have you – orders notwithstanding – there is a possibility ultimately that the evidence that he gives today can end up before a criminal court. (My emphasis)
Chief Examiner:        Yes.
Ms McDonough:       Now his concern is that he would like to have some protection for that in anticipation of giving his evidence, and on those instructions I endeavoured late yesterday to negotiate with Detective Senior Constable Pucar, some negotiations in relation to witness protection, and it was for the purposes of discussing those issues that we sought a non-publication order today. (my emphasis)
Now those negotiations, albeit late yesterday, were not fruitful and I was advised by the detective that those negotiations would occur if – and only if – QX gave evidence before the court that was of use – and I’m paraphrasing but I think that was the gist of our conversation. Now, QX’s position is not that he doesn’t want to give evidence today or another day, his position is that he is extremely fearful, as he’s given evidence before you today sir, and that his preference would be to have a negotiation with the police in relation to the protection of his family and indeed himself prior to giving any evidence, and if those negotiations can’t occur then his instructions to me are that he would prefer to face the consequences of contempt and imprisonment than endanger his family, and that’s really it in a nutshell, sir.
Mr Pucar sought to make submissions in relation to this issue on behalf of the Victoria Police and after being granted permission stated inter alia: [24]
With respect to witness security, I make the submission that he has had from Victoria Police a detailed explanation as to the workings and him being afforded the opportunity to avail himself of that protection in particular circumstances, and he has declined to take up that position. What I say in relation to that matter in consultation with the investigators of this organised crime offence is that he be provided with that opportunity for witness protection and to avail himself of that service should he provide information during this examination that goes outside of the written statement that he has previously provided to police, which we believe falls short of his knowledge of this investigation and of the organised crime offence.
[24]P 51 - transcript in confidence 6 August 2013
The matter was then adjourned by the Chief Examiner for a period of two weeks to allow the issue of witness protection to be canvassed. At the time of adjourning the hearing until that date, the Chief Examiner stated as follows:
Chief Examiner:        QX have a seat. I just wanted to clarify the basis upon which it is now proposed these proceedings be adjourned. Now, what you have indicated yourself and through your counsel is that there have been things that have taken place and circumstances which have occurred which raise in your mind concerns as to the safety of yourself and your family and in those circumstances you would, at this stage, refuse to answer questions unless the circumstances can be put in place where you are assured as to – to a degree that is possible, I suppose – that the security of yourself and your family is being attended to by Victoria Police. Now, I indicated in the course of discussion earlier that I am strongly of the view that this examination hearing will continue and that it is inappropriate that this coercive powers regime or system should ever be utilised for the purposes of forcing a person to make a statement to police, that is, someone would says (sic), “you make a statement or otherwise we’ll bring you before the Examiner and you will be forced to answer”. However, the issue of security is a matter that is quite separate and distinct and the view of Victoria Police which I think personally is appropriate, is that they will provide security but they need to know beforehand whether a witness is prepared to give a truthful and accurate account which is helpful to the investigation of the organised crime offence or a particular offence. Do you follow? (my emphasis)
QX:Yeah[25]
………..
Chief Examiner:                   Now, that may involve you making – being required – it’s a matter for the police, to make a sworn statement or a can say statement but to indicate in very concrete terms what is the truthful and accurate account you can give to assist the investigation into the organised crime offence. Do you understand that to be the case? (my emphasis)
QX:Yes.
Chief Examiner:                   Just to make it clear, it seems to me that’s entirely appropriate and proper and does not breach what I suggested a few moments ago was improper.[26]
[25]P 54 - transcript in confidence 6 August 2013
[26]Page 54 – 55 transcript in confidence 6 August 2013.

The hearing was resumed on 20 August 2013, but the respondent declined to answer any questions asked by the Chief Examiner discussed earlier in these reasons. At the conclusion of the questions the Chief Examiner stated to the respondent[27]:
[27]Page 65 – 66 transcript in confidence 20 August 2013

Chief Examiner:       Alright. Well, QX, in my opinion I’ve asked you questions relevant to the subject-matter of the examination hearing and you have refused or failed to answer those questions. It’s a matter for a court when considering this matter to consider the elements of the offence in order, and also as part of that the issue of reasonable excuse. Do you want to say anything at this stage in relation to the reasons why you have refused to answer?
QX:Yes, I have already stated that last time I was here.
Chief Examiner:        Alright. Well, do you want to say it again?
QX:Well, as I said, I worry about my safety and, as I’ve said, I’ve had a bullet go through my garage approximately a week after the events of Date 1 and numerous threats since via telephone messages and voice messages.
Chief Examiner:        Alright. Is that what you wanted to say?
QX:Yes.
Chief Examiner: QX, you are required to be here by the requirements of the summons and in due course I’ll prepare a warrant which will authorise you to be taken under arrest from this place to the Supreme Court, and also I’ll be drafting a certificate of charge which will be served on you and you can take those documents with you to the Supreme Court where no doubt you will be legally represented and there will be an application made for you to be granted bail in relation to this charge. However, before I adjourn the proceedings, QX, on the previous occasion I made a direction pursuant to s 43 of the Act restricting the publication or communication of evidence given here which involves your appearance, and that direction was made by me on the basis that if I failed to do so there might be prejudice to the safety of yourself and your family. That decision to make the direction was premised on the basis that you would be giving evidence that would implicate persons in the commission of a serious criminal offence. As it’s turned out that’s not happened. In those circumstances, I’m considering revoking the direction that I made on the previous occasion. Now in relation to that matter that I’m considering, do you want to saying anything about that or do you wish to speak to your counsel about that matter.

Mr. McGrath, on behalf of QX, made submissions concerning the basis of QX’s refusal to answer questions:
‘Discussions were had between the police and QX about QX providing a statement and also the giving of evidence at the examination. QX’s understanding was that the Victoria Police would not make a decision as to any protective measures for him and his family until such time as the examination was complete or a signed statement had been provided. It was because of the fact that there were no guarantees for QX’s safety, or the safety of his family, that my understanding is that that’s the reason he has refused to answer questions today. He’s aware of the fact that there are limitations on the non-publication order and that on the last occasion, my understanding is, that the non-publication order allowed only for the provision of information that came from the examination to Victoria Police for the purpose of investigations only.
However QX is also aware that under the Major Crime (Investigative Powers) Act 2004, s 43(4) and (5) there is no guarantee that what he says in this hearing or examination won’t ultimately find its way, if that person is charged, and that information would – could be provided to a legal practitioner: and that is the reason he is not answering questions. [28]

[28]Page 66-67 transcript in confidence 20 August 2013

Subsequent to the arguments, the Chief Examiner said he would revoke the previous s 43(2) order as the respondent at no stage had given any evidence, did not intend to give any evidence and there was unlikely to be any prejudice to his or his family’s safety or reputation.

At the conclusion of various directions given by the Chief Examiner the following exchange took place:[29]
[29]Page 73 – 74 Transcript in Confidence 20 August 2013

Chief Examiner: Well, Do you want me to explain anything to you?
QX: There’s no need
Chief Examiner All right. Well ---
QXCos it looks to me like you’re doing one thing and then you do the other and, you know, you don’t believe people are in danger or anything or anything of that sort of thing, so what would you like me to say?

Chief Examiner:        Alright. Well, I’ve tried to explain it as best I can, QX, that it was implicit on the basis ---
QX:Because if I wasn’t in any danger in the first place I’d be sitting here telling you what you wanted to know, so isn’t it obvious to you why people don’t say anything?
Chief Examiner:        Well, QX ---
QX:And negotiations that took place two weeks ago, the reason why this was adjourned, was just flat out – I was told straight out there’s no guarantees I’d ever get into any program or whatever.
Chief Examiner:        Emm.
QX:So, I mean, it gives you great assurance doesn’t it. So ---
Chief Examiner:        All right.
QX:Thank you, but that’s all I’d like to say.

The matter then proceeded to the formal charging of the respondent.

Preliminary issue

At the hearing before me, on 3 June 2014, counsel for the respondent raised a preliminary issue as to whether the court should be closed and sought clarification of the elements of the offence of contempt of the Chief Examiner in s 49(1)(b), particularly, the onus of proof in relation to matter of reasonable excuse.

Section 49 of the Act states:[30]
[30]Major Crime (Investigative Powers) Act 2004, s 49(1)(b).
49       Contempt of Chief Examiner
(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—
(a)       ……
(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; or
(c)       …

The Submissions

Counsel for the Chief Examiner submitted, that the structure of s 49 (1)(b) and s 36 (4) was similar, in that the “phraseology of ‘without reasonable excuse’ appears immediately prior to the conduct which is said to form the offence”[31]. She submitted that if the court was not satisfied, as a result of the similar drafting techniques used, then the form and substance of the provision demonstrates that the onus lies on the accused. Ms. Sharp argued in support of that submission that some of the elements of the offence exist within s49 (1)(b) and some exist in the chapeau in s 49(1) and gave as an example the necessity to prove, as part of the elements of the offence that a person has attended in answer to a valid witness summons, properly served upon the witness. She further submitted that the facts pertaining to a reasonable excuse were solely within the knowledge and purview of the respondent and not within the knowledge of the Chief Examiner and thus, she submitted, it is a strong indication that it is an exception, rather than an element of the offence that the Chief Examiner must prove, and relied upon the decision of Debono[32]in support of that argument. She submitted that it would frustrate the exercise of the Chief Examiner’s powers under the Act, as he may be unable to prove that the excuse provided was unreasonable, or may not even be aware of what particular excuse is relied upon.
[31]P 37 - Supreme Court Transcript 3 June 2014
[32]R v DeBono [2013] VSC 408.

Counsel for the respondent relied upon the form and construction of the section submitting that it was part of a single proposition, that is that the words ‘without reasonable excuse’ were contained within the definition of the grounds of liability. That, he submitted, would ordinarily be construed as an element of the offence which the prosecution must prove, that is a proviso, unless there is something in the form or content of the section to indicate otherwise. If the expression ‘without reasonable excuse’ was contained in an exculpatory provision, such as s36(4), considered in DeBono, it would likely be an exception, in which case, the onus of proof would usually be on an accused. The submission that the ‘reasonable excuse’ was exclusively within the knowledge of the respondent cannot be sustained, it was submitted, as the excuse proffered as well as the circumstances surrounding the witness, and the crime committed, would be known to the Chief Examiner, (matters such as the seriousness of the offending, the criminal histories and criminal connections of those involved, any prior threats or harm of persons who have cooperated with the authorities in this case, any ongoing violence being perpetrated by those believed to be involved etc.). On behalf of the respondent it was further submitted that when an excuse is proffered to the Chief Examiner for not answering a question, the Chief Examiner determines whether the excuse is reasonable or not. If the excuse is demonstrably unreasonable, or determined to be unreasonable in the circumstances of the particular case, there would be a basis upon which the Chief Examiner determined that the excuse was unreasonable and those matters and reason can be placed before the Court on the charge of contempt.

The Law

The argument is whether the onus of proof lies upon the Respondent, as an exculpatory provision, or upon the Chief Examiner as part of the elements of the offence required to be proved before a conviction could occur. In submissions both counsel relied upon the decision of Kyrou J in R v Debono.[33]
[33][2013] VSC 408.

In that case his Honour was considering s 36(4) of the Act, in particular, the onus of proof applicable for the defence of reasonable excuse contained within the section together with the meaning and scope of the defence.

36 Taking of evidence

(1) At an examination –

(a) the Chief Examiner; or
(b) a legal practitioner representing the witness; or

(c) any person authorized by the Chief Examiner to do so –
may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organized crime offence to which the examination relates.

(2)     The Chief Examiner may, at any examination, take evidence on oath or
         affirmation and for that purpose –
(a) the Chief Examiner may require a person appearing at the
     examination to give evidence either to take an oath or to make an
     affirmation in the prescribed form; and
(b) the Chief Examiner may administer an oath or affirmation to a
person so appearing at the examination.

(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.

Sub-section (1) prescribes who may question witnesses. Sub-section (2) is the power of the Chief Examiner to require a person to take an oath or affirmation and to administer that oath or affirmation. Sub-section (3) is a prohibition on refusal to make an oath or affirmation required by the Chief Examiner (the offence). Sub-section (4) is an exculpatory provision together with the penalty applicable for refusal, if there is no reasonable excuse:[34]

[34]Major Crime (Investigative Powers) Act 2004, s 36(3) and (4).

In R v Debono[35], Kyrou J referred to the means utilised by the Courts to aid the determination of the statutory interpretation of provisions, generally and also specifically those containing exculpatory sections:
21The question of whether an exculpatory statutory provision imposes the onus on an accused to prove the facts required to come within the provision or on the prosecution to disprove the existence of such facts, will depend on the legislative intention as determined by the language of the provision, its context and purpose. The courts have developed criteria to assist in the process of statutory interpretation. Those criteria include whether the provision is a proviso rather than an exception, the form and structure of the provision and whether the facts in question would ordinarily be exclusively in the possession of an accused.
22Generally, if an exculpatory provision is part of the definition of the grounds of liability, it will be a proviso and the onus will be on the prosecution to prove that the proviso does not apply. On the other hand, if an exculpatory provision is separate from the definition of the grounds of liability, and sets out a basis for negating a liability that would otherwise arise, the onus of proof will usually be on an accused.
23In relation to the form and structure of the exculpatory provision, if it exists in a single proposition with the definition of the grounds of liability, it is likely to be a proviso, in which case, the onus of proof will usually be on the prosecution. On the other hand, if an exculpatory provision is distinct from the provision that defines the grounds of the liability, it is likely to be an exception, in which case, the onus of proof will usually be on an accused. However, while the form and structure of the exculpatory provision is important, ultimately the question is to be determined by the substance of the provision rather than its form and structure. [citations omitted]
[35][2013] VSC 408 [21]-[23].
His Honour examined and relied upon the decision of the New South Wales Court of Criminal Appeal in Ganke[36], a case dealing with the Companies Code. The section under consideration was S357 of the Code which provided that:

‘a person who, without reasonable excuse, fails to comply with a provision of this section … is guilty of an offence’,

The sub-sections of Section 375 enumerated other obligations imposed upon the directors which, pursuant to s 375(9) of the Companies Code, could become offences if there was failure to comply with those provisions without reasonable excuse. Hunt J stated that in each case it is a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence and so must be proved by the Crown or whether it is a basis upon which criminal liability may be an avoided, the onus of which would rest upon the accused person.

[36]Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449

Kyrou J cited with approval the reasons of Hunt J:[37]
27His Honour held that s 375(9) of the Companies Code imposed a legal onus on an accused to prove the existence of a reasonable excuse for the following reasons:
In the present case, subs (9) indicates fairly clearly … that the offence is the failure to comply with the obligations imposed by the earlier subsections, but not if it be shown that there was a reasonable excuse for that failure. It is the existence of the reasonable excuse which prevents the failure from becoming an offence, and that excuse must necessarily be comprised of facts which are additional to those which constitute the failure to comply. Added to that particular indicium is the undoubted circumstance that those additional facts will in almost every case (if not indeed in every case) be solely within the knowledge of the director or the officer of the company who is charged.
The appellant has drawn attention to the different legislative style involved in other provisions in the Code such as s 316(11), which specifically provide that a particular matter is a defence to a prosecution. That is certainly a relevant consideration, but in this particular case it does not … outweigh the considerations to which I have already referred. All of the cases say that what must be construed is the intention of the legislature; the court must say what the legislature intended to be the prima facie ingredients of the offence, and the solution of that question depends upon the ordinary rules of construction.
28I agree with the submission that s36(4) of the Act is relevantly indistinguishable from s375(9) of the Companies Code. The general principles set out at [21] to [25] above, as applied in Ganke, strongly indicate that s 36(4) constitutes an exception to the elements of the offence set out in s 36(3) of the Act and that the Accused carries the legal onus of establishing on the balance of probabilities that he had a reasonable excuse for refusing to take an oath or make an affirmation.
29The phrase ‘without reasonable excuse’ does not form part of the definition of the grounds of liability under s 36(3) of the Act but introduces a new matter, the existence of which provides an exception to the criminal liability that would otherwise arise. The form and structure of sub-ss 36(3) and (4) support this conclusion, as the definition of the grounds of liability is complete under s 36(3) without the need to consider the exculpatory ground in s 36(4). Finally, the existence of facts that might constitute a reasonable excuse would ordinarily lie within the exclusive knowledge of an accused.
[37]R v Debono [2013] VSC 408 [27]-[29].
This issue has also been considered in a decision of the High Court in Chugg v Pacific Dunlop Ltd.[38] The majority judgment of Dawson, Toohey and Gaudron JJ, (with whom Brennan and Deane JJ agreed) examined the construction of a charge made under the Occupational Health and Safety Act 1958. The court was considering s 168 of the Magistrates (Summary Proceedings) Act [not relevant for the purposes of this decision] and stated[39]:
despite the language of s.168 and like legislative provisions, if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
The Court stated further[40]:
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. … Such is ordinarily the case where, in the terms used in R v Edwards, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities" .... If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
Brennan J in his concurring judgment noted:[41]
For another thing, the considerations which support a benevolent construction of a provision conferring rights of compensation upon an employee…. are not present in the case of a provision which is concerned only with the imposition of criminal liability and which accordingly must be strictly construed.

[38]Ganke v Corporate Affairs Commission (1990) 170 CLR 249.

[39](1990) 170 CLR 249 at 258

[40](1990) 170 CLR 249 at 258-9

[41](1990) 170 CLR 249 at 254

The Major Crime (Investigative Powers) Act 2004 contains a number of provisions relating to breaches of the Act. Sections 36(3), 37(1), (2), 38, 44, 48, 49 demonstrate within them the differences that exist in respect of how conduct will be treated under the Act. In the section being considered, the parliament has placed the words ‘without reasonable excuse’ in the description of the offence and it forms part of the definition of the grounds of liability under s 49(1)(b) of the Act. The words ‘without reasonable excuse’ do not introduce, as a new matter, in a separate section, an exception to the criminal liability that otherwise arises. Unlike the structure and form of sub-ss 36(3) and (4), considered in Debono, the definition of the grounds of liability include the relevant words. The distinct placement of the words within the grounds of liability, give a clear indication that parliament intended that it should be an element of the offence that the Chief Examiner must prove beyond reasonable doubt.

The argument that the knowledge of a reasonable excuse is a matter peculiarly within the knowledge of the respondent cannot in my opinion be supported. The form in which hearings are conducted, as far as I was able to ascertain from the legislation and exhibited transcripts, is that the respondent is sworn and then asked a series of questions. If he declines to answer the Chief Examiner, the Chief Examiner determines whether the questions he has asked him are questions that are relevant to the subject matter of the hearing and then asks if he has any reasonable excuse for such a failure and must determine that he has no reasonable excuse before he could charge him with contempt. That much is evident from the charge laid against the respondent, which states :[42]
[42]Paragraph 22 Certificate of Charge charging Contempt of the Chief Examiner, Tuesday 20 August 2013

22Section 49(2) of the Act provides that the Chief Examiner may issue a Certificate of Charge if it is alleged or appears to the Chief Examiner that a person is guilty of contempt of the Chief Examiner. I am satisfied that there is evidence that the witness is in contempt of the Chief Examiner in that during the examination hearing of the witness, the witness contravened s49(1) of the Act in that he failed or refused without reasonable excuse to answer questions relevant to the subject matter of the examination hearing. Accordingly I certify the contempt referred to herein to this Honourable court.

It should be noted that there would have been no need for any determination of the reasonableness or otherwise of any excuse if the Chief Examiner had charged the respondent with the substantive offence contained in s37(2)(a) of the Act which involves a refusal or a failure to answer a question required by the Chief Examiner to be answered. That sub-section did not contain, at the time of the hearing, a provision relating to reasonable excuse, either as one of the elements or as an exception, although sub-section (b) relating to the refusal or failure to produce a document did contain such a provision. It would appear to have been a lacuna in the legislation and I note that there has been an amendment to that section, subsequent to this hearing, in Act No. 55 of 2014, the Criminal Organisations Control and Other Acts Amendment Act of 2014, and that section now reads:

(2) A person appearing as a witness before the Chief Examiner must not without
reasonable excuse (the amending words) –
(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)(Without reasonable excuse – the words now deleted) Refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

The hearing process then continues with the explanation provided and the Chief Examiner determining that the explanation does not constitute a reasonable excuse. Once the Chief Examiner has determined those matters, the respondent can then be charged as a result of that assessment.

The argument that reasonable excuse lies exclusively within the knowledge of the respondent and thus should be viewed as an exception rather than an element of the offence, is not supportable on the cases[43]. The reasonableness of an excuse is not a matter entirely or exclusively within the knowledge of the respondent. If a person provides no excuse at the time of the hearing, then there is no excuse at all, let alone a reasonable excuse. Equally the excuse or excuses articulated by a witness are capable of evaluation and examination. The Chief Examiner is the head of an investigative agency which has sought and been granted a reference for a particular organised crime investigation and will ordinarily possess significant background information about the offence under investigation, the people involved in the offence or offences, the criminal history or histories of those suspected of involvement, the known associates of those people together with their criminal histories, the criminal milieu within which this occurred, the level of dangerousness of those alleged to be involved and other matters of that nature. With the information available to the organisation, it is within the ability of the Chief Examiner and those employed by him to both assess and test the credibility, accuracy and truthfulness of the excuse put forward by a witness. The proceedings can be stood down, or adjourned if time is required to make that assessment, but it is a necessary step that the Chief Examiner make an assessment of the reasonableness, or otherwise, of the excuse, if that is the offence with which the respondent is going to be charged. What must be paramount in the mind of all concerned is, that it is not a contempt of the Chief Examiner to refuse or fail to answer a question, even a relevant question, if that failure or refusal is a reasonable one in the circumstances of the matter being heard.
[43]Taikato v The Queen (1996) 186 CLR 454, Ganin v NSW Crime Commission (1993) 32 NSWLR 423

The charge means that the Chief Examiner asks the Court to punish the respondent for his failure to answer questions without a reasonable excuse. This is a criminal proceeding, albeit heard pursuant to the civil rules of the Court. It is a not uncommon principle in the criminal law that matters that may superficially appear to be within the knowledge of the accused are in fact evidentiary burdens only, such as in the case of self-defence. Once the issue of self-defence is raised by the accused or by the evidence, the prosecution must prove beyond a reasonable doubt that the accused was not acting in self-defence. As with cases of self-defence in homicide and other offences, the reasonableness of the explanation is capable of assessment by a jury or a Judge.

In this case, the Chief Examiner, who was responsible for drafting the charge in compliance with the Act, included within the particulars of the charge at paragraph (f), the following statement:
Pursuant to s 49(1)(b) of the Act, the refusal or failure, without reasonable excuse, of the respondent to answer those questions constitutes a contempt of the Chief Examiner.
That section when stripped of any irrelevances reads:
Section 49
(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 –

The Act then proceeds to state exactly what conduct will cause a person to be guilty of a contempt:

(b) A person being called or examined as a witness at an examination, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination.

It is an exceedingly clear statement by Parliament that the behaviour that must be proved to establish that a person is guilty of a contempt, is that person did, without reasonable excuse, either refuse to, or alternatively, fail to, answer any question relevant to the subject-matter of the examination.

Accordingly, for the reasons outlined above, the onus of proving that the respondent did not have a reasonable excuse rests upon the Chief Examiner.

On the material presented in this case, it is also apparent, that no submissions on whether the excuse offered by the respondent was reasonable in the circumstances of the hearing was sought from either counsel representing the respondent, or those appearing on behalf of Victoria Police. No determination was made, or even stated to have been made by the Chief Examiner, that the explanation put forward by the respondent was not reasonable in the circumstances of the hearing and no reasons provided to the respondent as to why the excuse provided was not reasonable. Nor was any opportunity then afforded to the respondent to re-consider his position once told that the excuse he had put forward was unreasonable. In my view, these are necessary steps that are required to be taken by the Chief Examiner before a charge of contempt should be laid against a witness.

Proof of Elements of the offence of Contempt

The Chief Examiner relied upon the affidavits of four witnesses, together with the exhibits as proof of the offence of contempt of the Chief Examiner.

The first witness, Siobahn Anne Rawlin in her affidavit, dated 3 September 2013, exhibited;

(a) the coercive powers order;

(b) the affidavit of service of the served upon the respondent, of the witness summons, the confidentiality notice and a notice of important information,

(c) a copy of the documents served upon the respondent.

(d) the video recordings and transcripts of the hearings held on 30 July 2013, 6 August 2013 and 20 August 2013.[44]

The legitimacy and accuracy of those documents is conceded by the respondent. The respondent has not challenged the legitimacy of the coercive powers order, the service of the witness summons and accompanying documents, or the accuracy of the transcripts of the three proceedings. All parties have accepted the transcripts as being an accurate version of the evidence given at the hearings, and relied upon those transcripts for the purpose of this hearing.

[44]Exhibit 3

It is accepted that the questions contained in the certificate of Charge, and particulars of charge were asked of the Respondent and that he refused to answer them in exactly the manner recorded within the transcript. The only argument made by the respondent is that the Chief Examiner has failed to establish, to the required level, that the excuse provided for failing to answer those relevant questions asked of the respondent was, at that time, unreasonable.

The concluding paragraph of the affidavit of Ms Rawlin stated:

On 20 August, the Respondent was asked questions about the first organised crime offence. I am told by investigators and believe that both before and after the first organised crime offence, the alleged offenders were at Address 1 with CB.
CB, (now deceased) was believed to have been an accessory to the first organised crime offence.

CB was murdered some few months after the offence relating to AB occurred and I have no further information in respect of the circumstances of CB’s murder.

Did the Respondent have a reasonable excuse? – the evidence

Although the question has been posed in the form outlined above, the onus of proof to establish that the respondent did not have a reasonable excuse lies upon the chief Examiner, and that proof is to the criminal standard of beyond reasonable doubt. It is convenient to pose the question in this manner as Kyrou J has ruled upon what may constitute a reasonable excuse when considering the penal sections of this Act in Debono[45].
[45]Supra

The evidence of what the respondent stated at the hearing before the Chief Examiner, as to his reasonable excuse, is included in the three transcripts exhibited to the affidavit of Ms. Rawlin, relevant sections of which I have previously referred to in this judgment, at paragraphs 24, 25, 26, 35 and 37, which I shall not repeat.

In relation to this element of the offence, the Chief Examiner relied upon the affidavits of Detective SV[46], Detective Acting Senior Sergeant PS[47] and Detective Senior Constable FL[48].
[46]Exhibit 4 - Affidavit of Det Senior Constable SV sworn 3 December 2013
[47]Exhibit 5 – Affidavit of Det. Acting Sergeant PS sworn 3 December 2013
[48]Exhibit 7 – Affidavit of Det. Senior Constable FL sworn 3 December 2013

The affidavit of Detective Senior Constable FL related to investigations she had carried out at the premises of the respondent on 20 August 2013. On attending at the premises she spoke to the wife of the respondent and inspected a garage door, photos of which were exhibited to the affidavit as were her notes of the conversation with the wife of the respondent. The photos depicted a small round hole in the garage door of the respondents’ premises. The deponent stated that she had not had the site forensically examined as the conversation with the respondent’s wife revealed that the respondent had drilled out what he said to his wife was a bullet hole some time prior to her examination. The conversation as recorded in her notes and exhibited to the affidavit as LF-1 was:
Asked about damage to garage. She indicated that there had been 1 ½ - 2 years ago.
Asked to see it, was taken through house towards back. Obs single garage on side of house in rear yard on same side as only driveway.
Obs camera on the right side of garage
Garage door was a lift up door not roller
Stated that she had noticed it when smoking outside
It had been covered by a card
She removed business card from inside and showed us hole
Stated upon conversation with [redacted name] he indicated it was from a bullet
Could not state when or narrow time down, stated he did not tell her much he would keep things from her so as not to scare/worry her.
Stated to her that he had drilled the …(indecipherable word) hole (unsure why). Nil other known threats or who may be involved. S/S that he was involved in drugs and hanging around with the wrong crowd at the time and believes that it may be involved with them.
Stated that he put cameras up afterwards and fence at front of d/way. S/S that she nearly moved out but decided not to.
Premises is a rental, private rental 4 years from a male
No report to owner or police.
Asked about car. Stated was in her name only stated had an issue with the same people am argument and left. Left his car for some reason in Area 1 and that never saw that vehicle again
Asked if paid for, stated didn’t know about finance but believed he would not have had the money to pay it off. Was behind in payments and had organised to give vehicle back but unsure if it had been.
Believed that there may still be money owed.
Explained that only just received report of damage and wanted to see it where that damage occurred.
Explained that it is not a new issue and no known/new threats involved. …..(indecipherable word) as we have only just been notified that there is a threat.
(Notes as to taking of photos)
Appears to be a large very round clear hole
Could not explain why it was drilled believed maybe to cover it up
Obs brother home as well
[Redacted unknown name] – states he couldn’t recall when damage occurred either 2011-2012 – sometime
Card provided, means of further info (as per WR notes as well)
Lac (presumed to mean leading acting constable) [name redacted] present as well.
Stated that [redacted unknown name] was at a meeting believed it was to do with drink driving.

There was no cross examination and the contents of that affidavit are unchallenged.

That material tends to confirm that in and around late 2011 early 2012, the respondent had attended at premises at Address 1 that he had with him his motor vehicle which he had left in another location in Area 1, and that the motor vehicle was not seen from that time. Subsequent to that occasion, and consistent with the evidence given at the hearing, the respondent informed his wife that a bullet had been fired into the garage door, which is also supported by the fact that shortly after that occurring he installed a camera on the garage and a fence across the property, despite this being a rental premises.

This investigation by Detective Senior Constable FL was conducted on the day of the final hearing at which the respondent was charged with contempt. It is unknown if this information was communicated to the Chief Examiner prior to his determination to charge the respondent, however it was not communicated to the respondent or his representatives, during the hearing on that day.

The second affidavit upon which the Chief Examiner relied was Exhibit 5 which dealt with two issues, the first being the impact that the contempt had upon the investigation, and the investigation conducted by the witness into the alleged threats made against the respondent.

Det A/Sgt PS referring to the consequences of the respondent’s failure to answer questions, expressed the impact in identical terms to that of SV and then added:

Without the information QX can provide, the investigation will stall and I believe there will not be enough evidence to charge any suspects with the attempted murder of AB and related offences. (my emphasis)

PS then dealt with a second matter, being the investigation of the alleged threats, said that he met the respondent with his legal representative on 7 August 2013 to examine the issue of witness protection, that the discussions resulted in a stalemate, in that the respondent would not provide a committed version of his information unless he was guaranteed protection under the witness security program, and PS explained that no assessment would be done until he had “committed to providing relevant information to police.” For the purposes of this hearing I am proceeding on the basis that what was required of the respondent was a sworn, or at the very least, signed version of the information that he had provided to SV.

He further stated that he subsequently emailed the respondent’s legal representatives indicating that he would like to further examine the allegations made by QX in the hearing conducted on 6 August 2013 regarding threats received and a bullet being shot through his garage door, and received no reply. He said that he had examined police databases and was unable to find any reports of threats, bullets in the garage door or a complaint about his stolen vehicle. He maintained that he was unable to progress the investigation of the alleged threats because QX has made no official complaint or given sufficient particulars.

The deponent was not cross examined and the contents of that affidavit remain unchallenged. The respondent at the hearing maintained that he did not report any of the threats or the bullet or the theft of his car to the police, because he knew the people involved were capable of serious violence. He stated to the Chief Examiner:

if I wasn’t in any danger in the first place I’d be sitting here telling you what you wanted to know, so isn’t it obvious to you why people don’t say anything?

The final affidavit upon which the Chief Examiner relied was that of SV, Exhibit 4, who was called for the purpose of cross examination. In that affidavit he swore that on the two occasions that he had spoken to QX he was seeking QX to sign a statement containing the information provided to him on 6 April 2012.[49] There was nothing in the affidavit to the effect that any further information or clarification was being sought from QX on either of those two occasions. The other occasion on which he was arrested by a different member of the force, was again for the purpose of asking him to sign a statement acknowledging the information that he had provided in the off the record conversation to SV.
[49]Exhibit 4 - paragraphs 4 and 7.

At the conclusion of the affidavit SV stated, in identical terms to PS, the impact of the contempt on the investigation:[50]
[50]Exhibit 4 - Affidavit of SV sworn 3 December 2013 paragraph 9.

It appears that all of that material referred to by SV and PS and more[51] is contained within the information already provided to SV by the respondent. In the affidavit SV details the areas of information already provided by the respondent, which in summary form are;
[51]Exhibit 4 - paragraphs 2 - 3

(a)His relationship with CB
(b)His time of arrival and his reason for attending at Address 1 on Date 1
(c)The events that occurred on the way to Address 1
(d)The persons who were present at the Address 1 including their names, nicknames and their behaviour
(e)The departure, and time of departure of two of the named persons who were present together with his observations and belief.
(f)The observations he made of CB after the departure of the other two named persons, the behaviour and statements of CB made to the respondent.

(g)The behaviour of CB in relation to a television report

(h)His belief as to the cause of that behaviour

(i)The observations of other persons attending at Address 1 at a nominated time, and the discussions that occurred between those named persons and CB
(j)The arrival of further named persons at a specified time.
(k)That he was in fear of his life and left
(l)That he had returned to an area in Area 1 to retrieve his car a few days later but it was no longer there.
(m)A telephone call that occurred subsequently and the contents of that call
(n)That he had not seen his vehicle since the Date 1
(o)That he had not reported his vehicle stolen
(p)His beliefs as to the persons involved in that phone call.

At the time that QX passed this information onto SV he told SV that he was in fear of his life whilst he was at the premises[52]. SV initially denied in evidence that the respondent ever told him he did not want to sign the statement because he was in fear of his life or of his family’s welfare, but subsequently agreed that on 6 April when QX first told him of the information, in the off the record conversation, that he had expressed concerns about the safety of his family, and that as a result SV mentioned WITSEC to QX.
[52]Exhibit 4 - Affidavit of SV sworn 3 December 2013 paragraph 2k.

The witness SV further agreed in cross examination as follows:

Mr. Johns: But you’d also agree, as an investigator, would you not, that a witness against those

accused of an attempted murder on AB would be a witness in a precarious position

SV: I would agree with that, yeah.

I summarised what the witness said by stating “A witness in the position of the accused would have a fair reason to feel threatened” to which the witness nodded agreement. SV was a member of the team of investigators dedicated to the investigation of the attempted murder of AB.

Did the respondent have a reasonable excuse – the law

In DeBono[53] Kyrou J established a set of criteria for what may constitute a reasonable excuse[54] That criteria is, in my view, non-exhaustive and it may be necessary to consider other criteria depending on the circumstances or reasonable excuse proffered by the person in the individual case being considered. His Honour stated:
[53]supra
[54]R v DeBono [2013] VSC 408 paragraphs 48 - 51

48       In my opinion 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 the light of:

(a) The purpose of the Act to confer coercive powers for the investigation of
organised crime offences;

(b) The need to avoid that purpose being frustrated; and

(c) The confidentiality and secrecy provisions in ss20(1), 35(1), 43(1) and 68 of the
Act to which I have already referred.

In order for such a fear to qualify as a reasonable excuse, it must satisfy the requirements set out at [49]-[50] below

49. First there must be an objective basis for the fear of physical harm. The fear
cannot be a mere subjective fear.

50 Secondly, the objective basis for the fear of physical harm must be reasonable in the
circumstances of the particular case. The fear could be reasonable if it is based on a
communication or conduct by another person which is objectively capable of conveying to the witness a threat of physical harm to him or her. Such a threat or other circumstance will not suffice if, objectively, in the practical world, the risk of physical harm is remote, negligible, imaginary or insubstantial.

51. Thirdly, the fear of physical harm must exist at the time of the refusal or failure to take an oath or make an affirmation and must be relevant to that refusal or failure. In other words there must be a nexus between the requirement to take an or affirmation and the fear of physical harm. Such a nexus could be satisfied if another person conveyed a threat to a witness that he or she would be physically harmed if he or she took an oath or made an affirmation.

Distilling what His Honour said, and removing any exemplars contained within those categories, what is required to either be proved by an accused, on the balance of probabilities, or negated by the Chief Examiner, beyond a reasonable doubt, if the refusal is based on fear of physical harm to that person or another, is:

1. That he or she fears that he or she (or another person), will be physically harmed if

he or she answers the questions.

2. That there is an objective basis for that fear

3. That the objective basis for the fear is reasonable, not fanciful, imaginary or

negligible

4. That there is a nexus between the objective fear and the refusal to answer

questions.

Although not specifically referred to in the decision of Debono, the nexus, in my opinion, does not have to be a fear that the person will be immediately physically harmed, or that the threat is one that was specific to giving evidence to that tribunal, but an objectively reasonable fear that the person (or another) may suffer physical consequences if that person answers those questions asked by the tribunal.

Whilst I agree with Kyrou J that there is a need to ensure that the coercive powers granted for the investigation of organised crime offences are not frustrated, it is inconceivable that the Parliament intended to put at risk the lives of its citizens, by legislating that a person, who is in genuine fear of retribution if it becomes known that they have given evidence of this nature under oath, should be compelled to give evidence without some proper form of protection being afforded to them.

It is argued that the confidentiality and secrecy provisions of the hearing should be sufficient to ensure that a person in the position of the respondent is protected from any consequences that may flow from the giving of evidence, such as assaults, threats or retribution. That may be sufficient in some cases, depending on the person, the nature of the information they possess, the criminal antecedents and connections of those about whom they can provide information, and the information that they are provided with at the hearing, but there may be cases where that non publication will not suffice. That is so where the clear intention of those involved is to utilise the evidence given at the hearing as the basis for a prosecution, by one means or another. Such an intention will unequivocally expose the witness giving evidence at the coercive hearing, who has legitimate, genuine fears for their safety to grave risks of physical harm.

The law is now clear, since the decision in The Chief Examiner v Mary Brown (A Pseudonym)[55] that the mandatory requirements under s 43(2) to make non-publication orders to protect the safety or reputation of the person cannot be altered or changed, unless the circumstances that caused the non–publication order to be made have themselves altered, and the order is no longer necessary to protect the safety or reputation of the witness. Equally, that decision made it clear that the purpose of the Act that created did not include a role in the prosecution of the organised crime offences, and information obtained through the use of the coercive powers cannot be disclosed to the Office of Public Prosecutions (‘OPP’) for the purpose of prosecution, except in very limited circumstances by order of a Court.
[55][2013] VSCA 167

Unfortunately none of this was made clear to the respondent, and from the transcript I am unsure that it was clear to the Chief Examiner, that the information obtained through a coercive hearing could not form the basis of evidence for a prosecution. The office of Chief Examiner had been, until the decision in YG v The Chief Examiner[56]and the subsequent decision in Mary Brown[57] routinely reversing non-publication orders to allow the material obtained at coercive hearings to be provided to the OPP to assist or even form the very basis of a prosecution case. The decision in Mary Brown had been delivered in late June of 2013, and may not have been fully understood at the time of the hearing, as the responses of the Chief Examiner to statements by both the respondent and the respondent’s counsel which I have highlighted earlier[58] demonstrates that all the parties were acting under the apprehension that if the respondent gave evidence at the coercive hearing this could or even would result in him becoming a witness in the prosecution of the alleged perpetrators.
[56][2012] VSC 385
[57]supra
[58] Paragraphs 26, 34 egs

At no time was he assured that what he said at the hearing would not be passed onto any prosecuting authorities and could not be used to compel him to become a witness in a prosecution against the alleged perpetrators of the organised crime offence. Without such clear reassurance being provided by the Chief Examiner, I am of the view that not only has the Chief Examiner failed to prove that the respondent did not have a reasonable excuse for his refusal to answer the questions put to him, I am positively of the view that he did, at that time, have a reasonable excuse to refuse to answer those questions.

The fear that was expressed in the hearings was confirmed by his behaviour after the alleged shooting of a bullet into his garage, the fact that he mentioned to SV at a very early stage (April 2012) that he was in fear for both himself and his family, as a result of the information that he possessed and the nature of the people involved. He had given evidence in the hearing of further threats having been made referring to him as a dog and other references that relate to providing information to authorities. No satisfactory evidence was placed before me that he was not a man under a proper and appropriate fear for his safety, if it became known that he was cooperating with the authorities, particularly by giving evidence. When that is combined with the failure of the Chief Examiner to properly explain or provide the correct information about what use could be made of his evidence at the coercive hearing, the result is that it was perfectly reasonable for him to have a fear of answering questions at the hearing, without there being some other protective systems in place for him and his family.

To have to provide a sworn or positive statement of what you can say about the offence, to obtain or be considered for witness protection is problematic. It is not an issue that I need to determine here, but it does not necessarily afford the protection required for a person in the position of the respondent.

There are numerous other matters that have caused me concern, including:

(a) The purpose of the police in requesting the hearing, when they appear to already have the information they claim to seek, albeit not in a sworn version.

(b) What appears to be the pressure/harassment of the witness to sign a sworn statement by the utilisation of outstanding warrants or petty driving offences, and possibly the use of the coercive hearing.

(c) The veracity of SV

(d) The failure of the Chief Examiner to hear submissions, to make or state that the excuse provided was unreasonable, or to give the respondent an opportunity to reconsider his refusal after a finding that his excuse was not reasonable.

As a result of my findings in relation to the elements of the offence I do not have to consider those matters, and will make no decision. If I am wrong in respect of those findings, then I believe those matters together with other possible issues would need to be properly considered and determined.

I note that since the hearing of this matter, the Parliament has enacted legislation that will impact upon the judgment of the Court of Appeal in MaryBrown. That is a matter for consideration by another court, but I am confirmed in my findings by the amendments that Parliament has deemed necessary to enable material from the Chief Examiner to be provided to the OPP for use in prosecutions. Such amendments may well result in more people having a reasonably based fear of answering questions, if those questions will be used to force them to give evidence in future prosecutions.

“Who’s concerned about you giving evidence which might be relevant to the conviction of those persons who were responsible for the attempted murder of AB on…. “
“….Well, I believe that people that – that tried to kill him would be concerned, because I’d be putting them away. I mean if someone – if I was in their situation, which I’m not and I – I was a hit man or whatever, I’d – you would think that, you know, someone that was trying to put me away or had evidence to put me away, I’d be – I’d be out there searching for ‘em and knocking ‘em off.”
“Chief Examiner: and that those – that prohibition on publication or communication would remain in place until it was removed, if it was removed, by a court deciding in the interests of justice whether or not that evidence should be released”.
“Counsel: So QX’s situation is this, and I – he and I both like to be candid about it – and he is cognisant, because I have advised him, as have you – orders notwithstanding – there is a possibility ultimately that the evidence that he gives today can end up before a criminal court.
Chief Examiner: Yes.”
Counsel for Respondent: that under the Major Crime (Investigative Powers) Act 2004, s43(4) and (5) there is no guarantee that what he says in this hearing or examination won’t ultimately find it’s way, if that person is charged, and that information would – could be provided to a legal practitioner: and that is the reason he is not answering questions.

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R v QX [2015] VSC 784

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R v DA [2016] VSC 396

Cases Citing This Decision

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Smith v PRQ [2022] QSC 123

Callanan v Witness M [2017] QSC 2

R v DA [2016] VSCA 325

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R v Debono [2013] VSC 408

Taikato v The Queen [1996] HCA 28

[2015] VSC 784

25 February 2015