40 In attempting to discharge her evidential burden, the respondent has put before me the conversation between George Defteros and the registered police informer which took place on 7 June last year. On one level, it does not amount to very much: no more than that Keith Faure told Mr Defteros to tell the respondent "to keep her mouth shut ... and if she doesn't ... I'll blame you." As later recounted by the informer, it is rather more sinister: "Faure wanted George to get Zarah to keep her mouth shut and that if she doesn't keep her mouth shut he'll go and do it." Behind these words lies the known criminality of Mr Faure, including his propensity for violence. The respondent has sworn that, as she understood the threat, it "was to the effect that I should stop talking about [Faure] otherwise Defteros and by inference I would be killed."
41 On this issue, the Crown has not persuaded me beyond reasonable doubt. In other words the prosecution has not, in my opinion, established that when the respondent refused to answer the questions put to her by the Crown Prosecutor, there was no reasonable possibility that she did so by reason of a threat that death or really serious injury would be inflicted upon her. The question remains whether the prosecution has also established beyond reasonable doubt that there was no reasonable possibility that a person of ordinary firmness of mind would have yielded to the threat.
42 In this context, it is relevant to consider whether (in the words of Smith J to which I have already referred) "the threat was present and continuing, imminent and impending."
43 On the respondent's own admission, she has not (so far as she knows) been the subject of any threat since she received a summons to give evidence. In the present context, that is a significant fact. The telephone calls from Barwon Prison preceded the respondent being served with that summons. Those calls may have been intended to convey a threat. I proceed upon the basis that they were. At the same time, the evidence of the police - which I also accept - is that they are not aware of any threat directed against the respondent (apart from that about which the informer spoke to Mr Defteros). The prosecution has in my opinion established beyond reasonable doubt that the respondent has never received a direct threat from anyone that could reasonably be seen as placing her in imminent danger of death or really serious injury.
44 At the same time, the prosecution case cannot but be affected by the contents of paragraph 8 of the affidavit of Gavan Ryan sworn on 2 March this year. He then swore that the police had in their possession information which, if disclosed, could identify the respondent as its source; and, if she were so identified, she would be in danger of reprisals.
45 The situation may have changed in the interval between March and October. The danger may have diminished or disappeared - or it may have increased. Given Mr Ryan's evidence, however, it seems to me that the respondent may well have been justified in refusing to answer any questions the truthful answer to which would have resulted in publication of the information to which Mr Ryan referred. After all, the prosecution cannot have it both ways. If the evidence was too sensitive to be produced to the Magistrates' Court, then (subject to a change of circumstances during the interval) it was too sensitive to be adduced, especially through the respondent, at the trial of Messrs Faure and Goussis in the Supreme Court.
46 But questions going to the information to which Mr Ryan referred in paragraph 8 of his affidavit may never have been asked; and, if asked, any objection to answering could have been taken up at that time. The difficulty for the respondent in the present context, however, is that she refused to answer any questions.
47 In so responding to the duty placed upon her to tell the truth, the respondent did not, in my opinion, exhibit that firmness of mind, or in other words that particular species of courage, which in circumstances such as those with which I am concerned is characteristic of, and therefore may be expected to be displayed by, the ordinary person. The quality required must be judged against the importance of giving evidence in criminal proceedings. That being a duty of great social significance, the ordinary person would appreciate that it must not be shirked unless the threat was a present, continuing, imminent and impending threat to one's life or to one's physical well-being (to the extent that a really serious injury might follow). I am satisfied beyond reasonable doubt that, in this case, the relevant threat cannot be properly described in those terms. I am also satisfied beyond reasonable doubt that a person of ordinary firmness of mind would appreciate that fact, and would not yield to the fear-induced temptation, although it might well exist, to refuse to answer questions even when directed to do so.
48 The last proposition may, I think, be tested against the circumstances of the proceeding in which the respondent was called to give evidence. Other witnesses were similarly called by the prosecution. Some of those other witnesses would have been required, in telling the truth as they knew it, to give evidence at least as damning of the accused and supportive of the prosecution case as that proposed to be called from the respondent. They gave that evidence. They may not have been subjected to threats. I do not know. Whether they were or not, they must - given the known characteristics of the accused - nevertheless have had some apprehension of possible harm. They overcame that apprehension. Were they, and thousands like them (including, of course, those called for the defence) to succumb to it, no system of justice could survive.
49 For these reasons, the orders sought by the originating motion should I think be made. The respondent is accordingly adjudged guilty of contempt of court. I will also direct that the requirements of r.5.03(1) and r.8.02 of Chapter 1 of the Rules of the Supreme Court be dispensed with, and that the applicant be authorised to commence this proceeding by Originating Motion in the form of Form 5C of those Rules.