Callanan v Witness M [2017] QSC 2 (2017) 264 A Crim R 349

SUPREME COURT OF QUEENSLAND CITATION: Callanan v Witness M [2017] QSC 2 PARTIES: JOHN DAVID CALLANAN as Presiding Officer of the Crime and Corruption Commission (applicant) v WITNESS M (respondent) FILE NO/S: SC No 3054 of 2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 January 2017 DELIVERED AT: Brisbane HEARING DATE: 18 April 2016; supplementary submissions of the applicant received 9 August 2016; supplementary submissions of the respondent received 22 August 2016 JUDGE: Burns J ORDER: The order of the court is that the respondent be punished for contempt pursuant to s 199 of the Crime and Corruption Act 2001 (Qld) CATCHWORDS: CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – whether the onus of proof of the existence of a “reasonable excuse” rested with the respondent – whether there was a “reasonable excuse” within the meaning of s 190 of the Act for the respondent’s refusal to answer questions CONTEMPT – PARTICULAR CONTEMPTS – INTEREFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW – EXERCISE OF STATUTORY POWER TO OBTAIN INFORMATION – where the respondent was called to give evidence before a -- 1 of 18 -- 2 Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he had a “reasonable excuse” under s 190 of the Crime and Corruption Act 2001 (Qld) for not answering questions – where the respondent asserted that his safety as well as that of his family would be endangered if he answered any questions about the subject matter of the investigation – where the presiding officer decided that the respondent did not have a “reasonable excuse” within the meaning of s 190 of the Act and certified to the court in writing pursuant to s 198 of the Crime and Corruption Act 2001 (Qld) that he was satisfied that the respondent was in contempt – where an application was subsequently made to the court for an order that the respondent be punished for his alleged contempt – whether the respondent failed to answer a question put to him at the Commission hearing by the presiding officer without reasonable or lawful excuse – whether the respondent was in contempt of the presiding officer Crime and Corruption Act 2001 (Qld), s 4, s 5, s 82, s 176, s 178, s 180, s 190, s 194, s 197, s 198, s 198A, s 199 Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld) Bank of Valletta PLC v National Crime Authority [1999] FCA 791; (1999) 164 ALR 45, cited Chugg v Pacific Dunlop Limited [1990] HCA 41; (1990) 170 CLR 249, followed Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC [2013] QCA 152; (2013) 229 A Crim R 286, followed Ganin v NSW Crime Commission (1993) 32 NSWLR 423, followed Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449, distinguished Intercontinental Development Corporation Pty Ltd, Re (1975) 1 ACLR 253, cited Peden v Boxx [2016] ACTSC 86, cited Registrar of Court of Appeal v Gilby (Unreported, Court of Appeal, NSW, No 40172 of 1991, 20 August 1991), followed R v Debono [2013] VSC 408, distinguished R v QX [2015] VSC 784, followed Saffron v Federal Commissioner of Taxation (1992) 109 ALR 695, cited Taikato v the Queen [1996] HCA 28; (1996) 186 CLR 454, cited Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, cited -- 2 of 18 -- 3 COUNSEL: M J Copley QC for the applicant MT Gatenby (sol) for the respondent SOLICITORS: Crime and Corruption Commission for the applicant Gatenby Criminal Lawyers for the respondent [1] The Crime and Corruption Commission was established by the provisions of the Crime and Corruption Act 2001 (Qld). By that statute, the Commission is vested with an array of investigative powers, not ordinarily available to the police service, that enable it to investigate major crime, criminal organisations and their participants.1 Among them is the power to conduct hearings, usually closed to the public, in relation to a crime investigation. The respondent was called as a witness at one such hearing but refused to answer questions. [2] A witness at a Commission hearing must answer any questions put by the presiding officer unless the witness has a reasonable excuse.2 In this case, the respondent asserted that his safety, as well as that of his family, would be endangered if he answered questions regarding the subject matter of the Commission’s investigation. On the basis of these assertions, it was submitted on the respondent’s behalf that there was a reasonable excuse for his refusal. The presiding officer did not agree and, after the respondent again refused to answer, steps were taken that culminated in the application now before the court that the respondent be punished for contempt.3 [3] On the hearing of such an application, the court must inquire into the alleged contempt.4 Such hearings are closed to the public.5 The court is obliged to “hear witnesses and evidence that may be produced against or for the person” allegedly in contempt and “any statement given by that person in his or her defence”.6 If the court is satisfied that the person has committed the contempt and, relevantly, the contempt consists of a failure to answer a question put to the person by the presiding officer “without reasonable or lawful excuse”,7 the court must punish the person by imprisonment to be served wholly in a corrective services facility. [4] To inquire into the alleged contempt in this case, the court received evidence on affidavit. No witnesses were required for cross-examination or otherwise produced. The affidavit evidence before the court was prepared on behalf of the applicant. No evidence was adduced on behalf of the respondent although, in fairness to the respondent, senior 1 Section 5(2). 2 Section 190(1). 3 Pursuant to s 199 of the Act. Strictly speaking, an application may not be necessary; the court’s jurisdiction is invoked when the presiding officer certifies the alleged contempt in writing to the court: s 199(2). In this regard, it is enough for the presiding officer to be satisfied that there is evidence of contempt: s 199(3). However, in accordance with what has become the usual and accepted practice, the presiding officer in this case certified the alleged contempt in writing to the court and then caused the subject application to be filed. The Uniform Civil Procedure Rules 1999 (Qld) otherwise apply to “the court’s investigation, hearing and power to punish, with necessary changes”: s 199(9). 4 Section 199(6). 5 Section 199(9A). 6 Section 199(7). 7 Section 199(8A)(iii). -- 3 of 18 -- 4 counsel for the applicant tendered an objection to bail affidavit that offered some support for the respondent’s assertions. [5] The central issue for determination on this inquiry was whether the respondent had a reasonable excuse within the meaning of s 190(1) of the Act for refusing to answer the presiding officer’s question. It is that issue to which these reasons are devoted. The evidence [6] On 26 June 2015, the Commission commenced an investigation into organised crime involving three named individuals and their associates pursuant to a general referral to investigate organised crime. The scope of the investigation was specified to be in relation to three different types of conduct suspected of having taken place since 1 January 2010, namely, (1) trafficking, supplying, producing and/or otherwise dealing in dangerous drugs and/or relevant substances or things contrary to the Drugs Misuse Act 1986 (Qld), (2) trafficking, supplying, possessing, manufacturing and/or modifying weapons and/or explosives contrary to the Weapons Act 1990 (Qld) and (3) money laundering contrary to the Criminal Proceeds Confiscation Act 2002 (Qld). To assist the investigation, on 1 July 2015 the Commission authorised the holding of hearings.8 On the same day, the applicant was (among others) authorised to conduct closed hearings in relation to the investigation.9 [7] On 30 June 2015, as part of the overall investigation, the respondent was arrested and charged with trafficking in dangerous drugs.10 According to an affidavit sworn by one of the principal investigating officers, Detective Sgt Bowman, the respondent was charged after police gathered “sufficient evidence to implicate him as a principal offender” with respect to that alleged offence.11 He was taken into custody and appeared in the Magistrates Court at Brisbane the next day (1 July 2015). The respondent was remanded in custody until 7 July 2015 when he was admitted to bail after a successful application in that court. He was released on the following day. [8] On 18 August 2015, a notice requiring the respondent’s attendance at one of the authorised hearings was issued pursuant to s 82 of the Act. It was served on the respondent two days later. The notice required the respondent to attend at the Commission on 28 August 2015 and give evidence relating to his “knowledge of, and involvement in, possessing, supplying, producing and trafficking in dangerous drugs on the Gold Coast and elsewhere since 1 January 2015”. According to DS Bowman, the respondent was suspected of having “vital information” about the activities of a particular Outlaw Motorcycle Gang (OMCG), relevant to the overall investigation, that would assist in the identification of “further investigation measures to obtain evidence implicating more senior members” of the OMCG as well as identifying the “location of wealth derived” from the illegal activities of that organisation.12 DS Bowman explained: 8 Pursuant to s 176 of the Act. 9 Pursuant to s 178 of the Act. 10 In alleged contravention of s 5(1) of the Drugs Misuse Act 1986 (Qld). 11 Affidavit of Craig Bowman sworn on 6 April 2016, par 5. 12 Ibid, par 8. -- 4 of 18 -- 5 “… I hold a suspicion that the respondent does have knowledge of the involvement of others in the serious indictable offences being investigated by the QPS and CCC in [the operation]. During the course of the investigation the [respondent] was previously identified as a fully patched member of the … OMCG. During the investigation in 2015 the respondent was identified as taking a role in the organization of club meetings, suggestive of the respondent holding a position of authority within the OMCG such as an “Enforcer”. The respondent was also identified as the user of a Blackberry “Phantom Secure” mobile phone, an encrypted communication device utilised by members of the … OMCG to communicate with one another in a manner designed to avoid police detection. Lawfully intercepted information obtained in the course of the investigation indicates the respondent was subsequently removed from the … OMCG, in circumstances described by a person identified as one of the respondent’s associates as “messing up a big thing”, which I suspect is a reference to messing up a drug deal”.13 [9] The respondent duly attended at the Commission hearing on 28 August 2015 but, after his solicitor indicated that an application for judicial review of the decision to issue the attendance notice would be made, he was not required to give evidence on that day. Subsequently, a judicial review application was filed but it was ultimately dismissed by consent on 17 December 2015. [10] On 22 March 2016, the respondent returned to the Commission for the resumption of the hearing. He was represented by his solicitor, Mr Gatenby. The hearing was closed to the public. The applicant, as presiding officer, ordered pursuant to s 180(3) of the Act that there be no publication of any answer given or document or thing produced by the respondent and that nothing he said and/or produced could be published to any officer of any prosecuting agency having the carriage of, or involvement in, the prosecution of him for any charges. Furthermore, pursuant to s 197(5) of the Act, the applicant ordered that all answers that the respondent might give were to be regarded as given under objection and then indicated that he would require the respondent to answer all of the questions that would be asked of him.14 Thus, by that order and requirement, the protection afforded by s 197(2) of the Act was pressed into service. Put another way, save for some limited exceptions,15 any answer given by the respondent could not be admissible in evidence against him in any civil, criminal or administrative proceeding. As the applicant explained, the respondent would be protected against: “[Any] direct fallout from what you say here in any prosecution of you anywhere, anyhow, any time okay”. [11] The applicant then proceeded to make some preliminary remarks about why the Commission was of the belief that the respondent could assist the investigation by the provision of evidence. However, as the applicant was doing so, the respondent spoke up. He said: “I understand everything that you’re saying and I’m … not trying to cut you off at all Sir … I appreciate you going into detail to explain that to me … but I’m extremely sorry if I’m wasting anyone’s time or anything like that but under the situation like 13 Ibid par 9. 14 See s 197(1)(c) of the Act. 15 The exceptions are specified in s 197(3) of the Act. Of those, the answers given at a Commission hearing by a witness are admissible in a proceeding such as this for contempt of the presiding officer: s 197(3)(b)(iii). -- 5 of 18 -- 6 I’m sorry, I don’t feel safe in any way for myself or my family to answer any questions like due to the fact is that I left the [OMCG] well before any of these charges have been brought up … I work full time interstate … I’m a single dad trying to fight for the custody of my daughter, I’m doing everything I possible [sic] can do under the sun to be a productive member of society and look these things have been brought up from the past that, to be honest with you … I had a problem and … I’ve left that in the past now and I don’t feel safe letting … any answers to any questions that could adversely affect my future or my family.” [12] At this point, the applicant explained to the respondent that one consequence of refusing to answer questions at the hearing would be “imprisonment”. The respondent replied: “… I understand that Sir and … I’m very sorry for the fact that obviously I’m not cooperating … but it’s not against … police or it’s not against [anything] … it’s in general knowledge of that I have left the [OMCG] and I’ve left that behind and I don’t want any repercussions … come onto my life”. [13] The applicant reminded the respondent that the “proceedings are conducted in secret” and, further, that throughout the whole of the investigation into the OMCG as well as another criminal organisation, “Lots of people came here, lots of people made full disclosure and as far as I know they’ve been no repercussions for anybody”. The respondent indicated that he understood that, but then said: “I’ve been out of the [OMCG] for almost 12 months now, I’ve got myself clean and I’m doing everything I possibly can … I have no loyalty to [the OMCG] whatsoever”. [14] The applicant asked, “Well then why won’t you tell us about them?” The respondent replied, “Because at the end of the day my ... safety is a concern and I’m sorry…”. He was then asked, “From whom do you consider you’re at risk?”, but the respondent was not prepared to answer that question. [15] There was then some discussion between the applicant, counsel assisting the Commission and the solicitor for the respondent about procedural matters before the hearing was adjourned. When it resumed a short time later, the respondent took an affirmation and was asked by counsel assisting to state what his “position” was. Included in what the respondent said in response was the following: “[It] became very clear to me when … after I left the [OMCG] I was approached by … a certain entity that if anything comes about any of the knowledge I know that myself and my family would be … obviously in danger or in some sort of trouble.” “[Since] that … happened … I was arrested for the trafficking matter. When I got taken into prison … they didn’t unlock my door the next day and they came down and they said um ‘We gotta pull you out of this unit’ which was on a weekend and I was unaware that people didn’t get moved on the weekends being my first time in there and the guard told me that [the police taskforce] has Intel that my life’s in danger.” “[They] pulled me outta that … unit and put me into a suicidal solitary … unit and then the Chief of the … Guard came down and asked me how my conversation went with [another inmate] ‘cause I bumped into him as soon as I went … into the jail and I said ‘There’s no issues like the past the past’ and they said that [the taskforce has] information that is contrary to that and that he could be just telling me what he wants -- 6 of 18 -- 7 me to hear and that they’re gonna get me and they wanted to sign me into the boneyard.” “I said ‘… I don’t know any of this like I don’t know how things work, I don’t want to go into … protection’ and so they said ‘We’ll have to find you another unit’ and they left me in the observation unit … for the week with the lights on 24/7 and no contact to the outside world, no books, no nothing or anything like that and by them doing this and keeping me away from other prisoners it’s made out like I’m a police informant or I’m the so called dog in jail.” “By pulling me out on a weekend when people don’t get moved by me not being able to get back into the general population and show that I’m there, the word is that I am in the protection yard and I am rolling and giving information.” “[Apart] from that a letter from [the taskforce] to the newspaper was obviously released, whereas in the newspaper article it had a graphic write up about myself … and that I was at risk of becoming a high profile informant so the [OMCG] gave me back my … jewellery and money and possessions and that was obviously given by information that [the taskforce] has been collected.” “I do not feel safe in any way like for giving any information or answering any questions … I’ve left the [OMCG] I’m doing everything right, I’m an active member of the community, I work … seven days a week, like I don’t want to be involved with this, I’m trying to change my life around. I don’t want my family to be put at danger or myself at risk”. [16] The respondent was then asked whether he was “claiming to have a reasonable excuse not to answer questions”, to which he replied, “I believe that’s more than a reasonable excuse not to answer questions”. He then formally indicated that he did not wish to answer any questions and stated, “I believe that if things continue then more things are leaked out about me in the paper or anything like that that yeah I could be in some sort of trouble for myself and my family”. [17] After another short adjournment to enable the respondent to take advice from his solicitor, the hearing resumed. Submissions were invited from the respondent’s solicitor. Reference was made by the applicant to s 190(4) of the Act which relevantly provides that a “prescribed person’s fear, whether genuinely held or not” of “personal physical harm” or “physical harm to someone else” is not a reasonable excuse to fail to answer a question if the investigation relates to a criminal organisation or a participant in a criminal organisation. “Prescribed person” is defined by s 190(5) of the Act to mean “a person who is a participant in a criminal organisation”. Although it could not be doubted that the OMCG in question was a “criminal organisation”, the applicant indicated that he was prepared to give the respondent the “benefit of the doubt” on the question whether the respondent was a “prescribed person”. The respondent would not be a “prescribed person” if he had in fact left the OMCG, and the applicant was prepared to proceed on the faith of the respondent’s assertions in this regard. As such, the respondent was not precluded from relying on his asserted fear of harm to himself and his family as a basis for claiming the existence of a reasonable excuse. [18] The applicant resolved to give the respondent “one last opportunity to respond”. He asked this question of the respondent: -- 7 of 18 -- 8 “… what is your knowledge of the involvement of members and associates of the [OMCG] in possessing, supplying, producing and trafficking dangerous drugs on the Gold Coast and elsewhere since the 1st of January 2015?” to which the respondent replied: “I’m sorry Sir I don’t wish to answer that question due to the reasons that I gave earlier.”16 [19] What followed next was the procedure under s 194 of the Act which applies if a person claims to have a reasonable excuse for not complying with a requirement made of the person at a Commission hearing to, relevantly, answer a question put to the person. In such a circumstance, the presiding officer must decide whether or not there is a reasonable excuse.17 The applicant decided that “no reasonable excuse [had] been made out”. In brief reasons, he stated: “… I’ve frankly found the statements made by [the respondent] somewhat unclear … but it seems to me that … none of that represents what might – a what a reasonable person might … consider an actual threat of actual physical harm or other kinds of harm to himself or family members. The environment in which … they were made … seems to me … and particularly what I understand to be [the respondent’s] background within the [OMCG] that’s … the subject of the investigation, they’re all such that whilst they may cause him some concern they are not sufficient to amount to a real apprehension of real harm and therefore do not … amount to a reasonable excuse.” [20] At that point, the respondent was asked again whether he wished to answer the question extracted at [18] above, but he declined. A short time later the applicant directed a police officer present at the hearing to detain the respondent pending the making of the subject application.18 In a Certificate of Contempt prepared pursuant to s 198 of the Act later that day, the applicant certified that he was satisfied that “there is evidence of contempt of the presiding officer conducting a [Commission] hearing in that, at a [Commission] hearing, the witness refused to answer a question put to the witness by me, the presiding officer, without reasonable or lawful excuse”. On the following day, 23 March 2016, the subject application for an order that the respondent be punished for his alleged contempt was filed. [21] Finally, the evidence before the court was supplemented by an affidavit from the solicitor for the Commission, Ms Wood,19 and the objection to bail affidavit by one of the investigating police officers, Detective Senior Sgt Andrews, to which reference was earlier made.20 Each bears to some degree on the claims made by the respondent at the Commission hearing. [22] Ms Wood deposed to enquiries she made of the prison where the respondent was held between 3 and 8 July 2015. Those enquiries revealed that the respondent was initially accommodated in an induction unit for newly arrived prisoners until Sunday, 5 July 2015 16 Ibid Page 4 of 4. 17 Section 194(1A) of the Act. 18 Pursuant to s 198A of the Act. 19 Affidavit of Wood sworn on 18 April 2016. 20 Affidavit of Mark Gregory Andrews sworn on 7 July 2015, Exhibit 1. -- 8 of 18 -- 9 when he was moved to the Health Services Centre. He remained there until his release on 8 July 2015. This evidence supports the respondent’s assertion that he was removed from the general population after he arrived at the prison and on a weekend. Although it is doubtful that he was accommodated in any form of solitary confinement, it cannot be excluded that what the respondent described in evidence before the Commission – “they left me in the observation unit … for the week with the lights on 24/7 and no contact to the outside world, no books, no nothing or anything like and by them doing this and keeping me away from other prisoners” – was his experience of an observation unit in that section of the prison. [23] By his affidavit, Detective Senior Sgt Andrews objected to the respondent being released on bail on 7 July 2015. In it, he expressed the opinion that, if released on bail, the respondent would fail to appear but, of relevance to this inquiry, he also expressed the opinion that the respondent should remain in custody for his own protection. He swore: “Investigators hold concerns for the safety of [the respondent] for two reasons as the evidence indicates that he still owes money to the [OMCG] … and that [other members of the OMCG] hold concerns about [the respondent] being able to provide assistance to law enforcement.” Key provisions [24] It is useful to set out some provisions of the Act of present relevance.21 [25] Section 190 is the provision that imposes an obligation on witnesses at Commission hearings to answer questions. It also makes it an offence to refuse to answer questions. The provision is in these terms: “190 Refusal to answer question (1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse. Maximum penalty—200 penalty units or 5 years imprisonment. (2) The person is not entitled— (a) to remain silent; or (b) to refuse to answer the question on a ground of privilege, other than legal professional privilege. (3) If— (a) the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and 21 Between the date of the hearing in this court and the delivery of judgment, the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) received assent and, by Part 5, a number of the provisions of the Crime and Corruption Act 2001 (Qld) were amended. Those amendments took effect from the date of assent (9 December 2016) and include the repeal of s 190(4) and s 190(5) of the Act. However, as both parties agreed, none of the amendments make any practical difference to whether a contempt was committed in this case. -- 9 of 18 -- 10 (b) the person has no authority to waive the privilege; the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made. Maximum penalty—200 penalty units or 5 years imprisonment. (4) A prescribed person’s fear, whether genuinely held or not, of— (a) personal physical harm or damage to the person’s property; or (b) physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond; is not a reasonable excuse to fail to answer a question if the investigation or intelligence hearing relates to a criminal organisation or a participant in a criminal organisation. (5) In this section— prescribed person means a person who is a participant in a criminal organisation.” [26] Section 198 defines when a witness will be in contempt of the presiding officer at a Commission hearing and makes plain that, amongst other things, a refusal to answer questions may be certified in writing to the court as a contempt of the presiding officer conducting the hearing. Section 198 relevantly provides: “198 Contempt of person conducting commission hearing (1) A person is in contempt of the presiding officer conducting a commission hearing if the person— … (c) at the hearing, contravenes a provision of this Act relating to the hearing; … (4) To remove any doubt, it is declared that the following contraventions relating to a hearing may be certified in writing to the Supreme Court under section 199 as a contempt of the presiding officer— … (c) a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse.” [27] Lastly, s 199 provides for the punishment of individuals who are found to be in contempt of a presiding officer at a Commission hearing. Following amendments to the Act in 2013,22 a term of imprisonment for contempt of a presiding officer at a Commission hearing is now mandatory. As earlier mentioned, whenever a presiding officer certifies a contempt in writing to the court, the court is obliged to inquire into the alleged contempt under this provision. It relevantly provides: 22 Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) and Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld). -- 10 of 18 -- 11 “199 Punishment of contempt (1) A person’s contempt of the presiding officer conducting a commission hearing may be punished under this section. (2) The presiding officer may certify the contempt in writing to the Supreme Court (the court). (3) For subsection (2), it is enough for the presiding officer to be satisfied that there is evidence of contempt. (4) The presiding officer may issue a warrant directed to a police officer or all police officers for the apprehension of the person to be brought before the Supreme Court to be dealt with according to law. (5) The Bail Act 1980 applies to the proceeding for the contempt started by the certification in the same way it applies to a charge of an offence. (6) The court must inquire into the alleged contempt. (7) The court must hear— (a) witnesses and evidence that may be produced against or for the person whose contempt was certified; and (b) any statement given by the person in defence. (8) If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court. (8A) However, if— (a) the contempt that is certified is— … (iii) a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse; and (b) the court is satisfied the person has committed the contempt; the court must punish the person in contempt by imprisonment to be served wholly in a corrective services facility. (8B) The minimum punishment the court must impose is— (a) for a first contempt—imprisonment for the term decided by the court; or (b) for a second contempt relating to a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified — 2 years and 6 months imprisonment; or (c) for a third or subsequent contempt relating to a hearing dealing with the same subject matter as that dealt with in at least 2 hearings in each of which the person’s contempt was certified —5 years imprisonment. (8C) The maximum punishment the court may impose is at the discretion of the court. -- 11 of 18 -- 12 … (10) The presiding officer’s certificate of contempt is evidence of the matters contained in the certificate. …” Consideration [28] As stated at the outset, the task of the court is to inquire into the alleged contempt. If satisfied that a contempt has been committed and that the contempt consists of a failure to answer a question put by the presiding officer “without reasonable or lawful excuse”,23 the court must punish the contemnor by imprisonment to be served wholly in a corrective services facility.24 A contempt of the presiding officer is committed if the alleged contemnor contravenes a provision of the Act relating to a hearing.25 A failure to answer a question put by the presiding officer at a hearing “without reasonable or lawful excuse” will be a contravention that may be certified as a contempt under s 199.26 Although an alleged contemnor who fails to answer a question put by the presiding officer without “reasonable excuse” will have committed an offence,27 this of course is not a proceeding for that offence. Rather, the alleged contempt having been certified in writing by the presiding officer to the court, it will be open to someone in the position of the respondent to raise in his or her defence an excuse that is “reasonable” or “lawful” or both. Here, it was not suggested on behalf of the respondent that he had any “lawful excuse”, so the question for the court is whether the respondent had a reasonable excuse for refusing to answer the presiding officer’s question. If not then, in the circumstances of this case, the court may be satisfied that the respondent committed the alleged contempt.28 [29] That explained, the next issues to consider are the standard and onus of proof of the alleged contempt. [30] The applicable standard of proof is uncontroversial; before the court may punish the respondent for contempt, it must be satisfied beyond reasonable doubt that the contempt has been proved.29 That means that, in the circumstances of this case, the court must be satisfied beyond reasonable doubt that the respondent failed or refused to answer a question put to him at the Commission hearing by the applicant and that there was no reasonable excuse for his refusal. [31] The question as to which of the parties bears the onus of proof is less clear but whether the Act imposes the onus on the respondent to prove the facts required to establish a 23 Section 199(8A)(iii). 24 Section 199(8B) prescribes the “minimum punishment the court must impose” in the case of a “first contempt” (a term of imprisonment in the discretion of the court), a “second contempt relating to a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified” (two years and six months imprisonment) or a “third or subsequent contempt relating to a hearing dealing with the same subject matter as that dealt with in at least two hearings in which the person’s contempt was certified” (five years imprisonment). 25 Section 198(1)(c) of the Act. 26 See s 198 of the Act. 27 Under s 190(1) of the Act. 28 There being no other ground advanced, or apparently available, to resist that conclusion. 29 See Witham v Holloway (1995) 183 CLR 525 at 543. -- 12 of 18 -- 13 reasonable excuse or on the Commission to disprove the existence of such facts will depend on the legislative intention as discerned from the language of the relevant provision, its context and purpose. To assist in that task, the court was referred to a number of authorities including Chugg v Pacific Dunlop Limited,30 Ganke v Corporate Affairs Commission,31 R v Debono32 and R v QX.33 [32] In Chugg v Pacific Dunlop Limited, the reasons of the majority contain the following statement of principle: “… 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. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined “upon considerations of substance and not of form”… 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. … If the new matter is 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.”34 [citations omitted] [33] Here, the matter – “reasonable excuse”– accompanies the description of the obligation in s 190(1) of the Act and is part of the statement of that obligation. The same observation may be made about the references to that obligation in s 198(4)(c) and s 199(8A)(a)(ii) of the Act. “Reasonable excuse” is not set up as a new or different matter from the subject matter of the obligation and, unlike the legislation under consideration in both Ganke v Corporate Affairs Commission and R v Debono where the relevant matter was set out separately to the description of the obligation35 or offence,36 there is nothing in s 190 (or any other provision) to suggest that “reasonable excuse” is an exception in relation to which the witness bears the onus of proof. Rather, it should in substance be seen as a proviso to the statement of the relevant obligation. Nor can it be said that the subject matter will be peculiarly within the knowledge of the witness, as the affidavit evidence assembled in this case demonstrates.37 For these reasons, s 190(1) should be construed as 30 (1990) 170 CLR 249. 31 (1990) 19 NSWLR 449. 32 [2013] VSC 408. 33 [2015] VSC 784. 34 (1990) 170 CLR 249 at 258-9 per Dawson, Toohey and Gaudron JJ. 35 In Ganke. 36 In Debono. 37 In this regard, it is useful to note the following observations of King J in R v QX (at [53]) regarding whether facts forming the basis of a claimed “reasonable excuse” in the case of a witness called before a similar investigative body were peculiarly within the knowledge of the witness: “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 -- 13 of 18 -- 14 requiring the Commission to prove the absence of “reasonable excuse”. Of course, there will be an evidential onus on the witness to raise the facts that are said to give rise to the claimed excuse,38 but the onus will then be on the Commission to prove that the excuse so raised is not reasonable.39 [34] Turning then to the question of the existence or otherwise of “reasonable excuse” in this case, that expression is not defined in the Act. However, the expression has previously been considered by the Court of Appeal in the context of what might be regarded as the statutory predecessor to s 190 of the Act.40 In that case, Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC,41 the respondents refused to answer questions put to them by the Crime and Misconduct Commission on the basis that they had been the victims of serious assaults. For example, WSX stated: “I have a reasonable excuse specifically I was a victim to a severe bashing. I’m genuinely fearful of my safety and life if I answer any questions about these matters.”42 Whilst it was not in contest that the respondents had been seriously assaulted,43 that was found to be insufficient to support a reasonable excuse under the relevant provision. In reaching that conclusion, de Jersey CJ (with whom Gotterson JA and Mullins J agreed) held that whether “reasonable excuse exists is a matter for objective determination, and the consequences of a refusal to answer, to both the examinee and the … Commission, are relevant considerations”.44 His Honour quoted with approval the following passage from Registrar of Court of Appeal v Gilby:45 “It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in [general], constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called to do so. In order to constitute duress in the sense relevant to an offence of the present kind, it is necessary that there be … elements of immediacy, directness and fear in respect of what has been done.”46 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.” 38 See R v QX [2015] VSC 784 at [54], [58]. 39 See R v QX [2015] VSC 784 at [46], quoting R v Debono [2013] VSC 408 at [21]-[23], and at [54]; Peden v Boxx [2016] ACTSC 86 at [11]-[25]. 40 Section 194(1) of the Crime and Misconduct Act 2001 (Qld). 41 (2013) 229 A Crim R 286. 42 Ibid 288. 43 Ibid 292. 44 Ibid 293. 45 (Unreported, Court of Appeal, NSW, No 40172 of 1991, 20 August 1991). 46 Ibid 12. -- 14 of 18 -- 15 [35] Chief Justice de Jersey went on to observe that the existence of “reasonable excuse” in that case depended on the assumption that the respondents’ assailants would reach the conclusion that the respondents had given evidence before the Commission which might identify them and would then decide to seek retribution in the form of further assaults. However, his Honour, regarded it as “speculative to contemplate that the circumstances of the respondents’ presence … before the [Commission] would, in breach of law, be disclosed and come to the knowledge of the respondents’ previous assailants or their associates”.47 The “context”, his Honour held, was of “proceedings legislatively private, with disclosure an offence”.48 His Honour then observed: “There is a high public interest in identifying those responsible for serious criminal offending. While the respondents’ own concern is understandable, that it is borne of the previous assault – as substantially the only matter founding the Presiding Officer’s decision and the judge’s contrary finding, was not enough to warrant a conclusion that they had reasonable excuse not to answer a question which if answered may have led to the identification of their assailants. In determining whether or not there was ‘reasonable excuse’, the decision maker had to balance the respective considerations of the public interest in tracking those responsible for violent crime, and the private concerns of those who may be able to disclose those responsible.”49 [36] It should not be thought that Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC contains an exhaustive statement of the considerations that arise when determining whether there is reasonable excuse for failing or refusing to answer questions at a Commission hearing. Indeed, the same observation may be made about the other decisions on this point to which the court was referred – for example, Ganin v NSW Crime Commission,50 Bank of Valletta PLC v National Crime Authority,51 R v Debono52 and R v QX.53 What however can be taken as established is that whether a reasonable excuse exists is to be determined applying an objective test which takes into account, amongst other things, the legal environment in which the question was put, the consequences to the Commission and to the witness of a refusal to answer and the public interest in achieving one of the main purposes of the Act, that is to say, to combat and reduce the incidence of major crime.54 [37] Where a witness refuses to answer questions at a Commission hearing out of fear of physical harm based on threats, that may constitute “reasonable excuse” so as to relieve the witness of the obligation. Such a conclusion is implicit in the reasoning of de Jersey CJ in Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC and, indeed, from the terms of s 190(4) of the Act which exclude the availability of such an excuse in the case of a participant in a criminal organisation. That provision has no operation here – the respondent had left the OMCG by the time he was called as a 47 (2013) 229 A Crim R 286 at 293. 48 Ibid. 49 Ibid. 50 (1993) 32 NSWLR 423. 51 (1999) 164 ALR 45, and quoted with approval by the Court of Appeal in Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC (2013) 229 A Crim R 286 at [23]. 52 [2013] VSC 408 at [48]-[51]. 53 [2015] VSC 784 at [81]-[82]. 54 See s 4(1) of the Act. -- 15 of 18 -- 16 witness – but its presence in s 190 confirms that such an excuse might in other cases be available. [38] However, to constitute “reasonable excuse” a threat of physical harm must, in my view, be a real and appreciable risk that harm will follow if the witness answers the question to which the refusal relates. To adapt the language used by Kirby P in a different statutory setting in Ganin v NSW Crime Commission,55 the risk must not be one that is “imaginary or insubstantial”.56 Also, the elements of immediacy, directness and fear referred to in Registrar of Court of Appeal v Gilby will, in most cases, be considered necessary before an excuse founded on a threat may be regarded as sufficient to excuse compliance with the obligation to answer questions. Of course, there may be cases where the element of immediacy is not present in the sense that the making of the threat and the appearance of the witness at the Commission hearing are separated by an appreciable period of time. In such cases, the potency of the threat and its continuing effect on the witness may not have been diminished by the passage of time but, in other cases, that will not be so. Everything depends on the facts of the particular case at hand, as revealed by the evidence, as well as the purpose of the provision to which the existence of a reasonable excuse exempts compliance.57 [39] It should also be said that the mere assertion by a witness that he or she fears retribution if a question is answered will be most unlikely, without more, to sustain a claim of reasonable excuse. Such assertions are easily made but may not, in a given case, be as easily disproved. Because of the inherent likelihood that such assertions will be made as a justification for failing to cooperate in the investigation of organised crime, it would seriously undermine the important public policy objectives of the Act if such assertions were to be generally regarded as enough to excuse compliance with the provision. Of course, that is not to say that a witness is under any obligation to adduce evidence in support of his or her claim beyond what they have said to the presiding officer at the hearing. However, there must be real substance to the witness’ claim, however expressed or supported; reliance on a vaguely articulated or unparticularised threat will rarely suffice.58 [40] For the respondent, it was submitted that the concerns he expressed in evidence about his safety as well as that of his family were matters of real substance and not “so remote as to be safely ignored or over-ruled as unreasonable”.59 In support of that submission, a 55 (1993) 32 NSWLR 423. 56 Ibid at 439 citing Intercontinental Development Corporation Pty Ltd, Re (1975) 1 ACLR 253 at 259; Saffron v Federal Commissioner of Taxation (1992) 109 ALR 695 at 698. 57 See Taikato v R (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. 58 Of course, evidence supporting the witness’ claim may be placed before the presiding officer or, on an inquiry such as this, before the court. In Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC, de Jersey CJ reflected on what further evidence might have been adduced in that case. His Honour said (at 292): “Its scope could, for argument’s sake, have covered any past association (if it existed) between the respondents and members of [criminal organizations] such as might have given ground for a particular fear in this instance, or knowledge of the way such organizations proceed, if relevant and known to the respondent. They are but examples of the sort of evidence which might have been led.” 59 Outline of submissions on behalf of the respondent, par 14. -- 16 of 18 -- 17 number of features were highlighted: harm was threatened to the respondent and his family after he left the OMCG if his knowledge of the activities of that organisation was revealed; after the respondent was taken to prison, intelligence was received by a corrective services officer or officers to the effect that his life was in danger; the officers responsible for his welfare in the prison were concerned enough by that intelligence to remove the respondent from the general population; and officers from the taskforce appeared to be in possession of similar information. Reference was also made to the respondent’s claims that the way in which he had been removed from the general population coupled with the contents of an article appearing in a newspaper had created the perception at least that the respondent had become a police informant. Otherwise, it was submitted that it was not incumbent on the alleged contemnor to “establish with absolute particularity the threat or the particulars of the actual harm” that was threatened, and that the “protections offered by the [applicant] would not preclude the release of information to” those he implicated by his answers.60 In supplementary submissions, it was submitted that the fears which the respondent expressed to the applicant were objectively reasonable and that this was so despite the passage of time between when the respondent was threatened and his appearance at the Commission hearing.61 [41] The above submissions on behalf of the respondent were largely based on what the respondent said in evidence to the applicant. Nevertheless, some support for parts of his evidence can be found in the affidavit of Ms Wood and the objection to bail affidavit prepared by Detective Senior Sgt Andrews. The former supports the respondent’s claim that he was removed from the general population of the prison for a period of time and the latter confirms what may have otherwise perhaps been assumed, that is to say, that as a former “fully patched” and senior member of the OMCG, then current members of the OMCG were concerned that the respondent might provide information about the activities of that organisation to assist the police. For that reason and the reason that, at the time the affidavit was sworn, the respondent still owed money to the OMCG, Detective Senior Sgt Andrews was concerned for the respondent’s safety. [42] I am prepared to accept that, at the time the respondent was taken into custody on the trafficking charge, he genuinely feared for himself and his family if he revealed information about the activities of the OMCG to the authorities. There was at that time a risk of harm to the respondent which was sufficiently credible to cause corrective services officers to remove the respondent from the general population in the prison and for Detective Senior Sgt Andrews to object to the respondent’s release on bail out of concern for his safety. However, I cannot accept that, when almost nine months later the respondent appeared at the Commission hearing, he was under the same state of fear or that there remained any particular risk of harm to him. That is because, by the respondent’s own account and his own assessment, his removal from the general population of the prison and the timing of that removal – on a weekend – coupled with what had been said about him in the media created the perception that he had become a police informant. As he said in evidence, “[The] word is that I am in the protection yard and I am rolling and giving information”. Despite that, he sought and obtained release on bail and remained on bail until he was detained following his appearance at the Commission hearing. There was no suggestion that the respondent had been threatened 60 Ibid at pars 15-16. And see the submissions on this point made by the solicitor for the respondent at the hearing: TT. 1-31-32. 61 Supplementary submissions on behalf of the respondent, par 4(d). -- 17 of 18 -- 18 or even approached by members or associates of the OMCG over the intervening period. Shortly stated, if there was a perception that the respondent had become a police informant, that perception had no impact on him or his family, and the respondent must have appreciated that by the time he appeared at the Commission hearing. By that time, the threat the respondent said had been made by the so-called “certain entity” was dated, not renewed and, when given in evidence by the respondent, devoid of much in the way of particularity. There was little, if anything, about the threat that retained the elements of immediacy, directness and fear. [43] Furthermore, there was and remains a strong public interest in identifying those responsible for serious criminal offending, and the respondent’s former position within the OMCG meant that he was likely to have been in possession of valuable information to assist that objective. In addition, the question was asked of the respondent in a legal environment that was described (with reference to the almost identical regime under the predecessor to the Commission) by de Jersey CJ in Crime and Misconduct Commission v WSX; Crime and Misconduct Commission v EDC as “legislatively private, with disclosure an offence”. The risk of dissemination of the information conveyed by the respondent was accordingly reduced. In those circumstances, the public interest must be seen to prevail over the private concerns expressed by this respondent. [44] I am not persuaded on any objective view of the facts that what the respondent advanced by way of excuse to the applicant for refusing to answer the question put to him was reasonable. To the point, I am satisfied beyond reasonable doubt that those matters do not constitute a reasonable excuse within the meaning of s 190(1) of the Act. Disposition [45] I am satisfied beyond reasonable doubt that the respondent committed a contempt of the applicant as the presiding officer conducting a Commission hearing. In particular, I am satisfied beyond reasonable doubt that the respondent refused to answer a question put to him at the Commission hearing by the applicant without lawful or reasonable excuse. [46] By reason of s 199(8A) of the Act, the court must punish the respondent by imprisonment to be served wholly in a corrective services facility. As this is the respondent’s “first contempt” within the meaning of s 199(8B) of the Act, the term of imprisonment is for the court to decide. I shall hear the parties on that issue. -- 18 of 18 --