Applicant v Respondent

Stephen Carisbrooke, Acting Solicitor for Public Prosecutions

1 On 7 October 2005, Ms Zarah Garde-Wilson, the respondent, was called by the Crown to give evidence in the trial of Keith George Faure and Evangelos Goussis for the murder at Brunswick on 8 May 2004 of Sean Vincent (who was also known as Lewis Caine; and it is by the latter name that I will refer to him). The jury had not then been empanelled; but, as the Crown intended to call the respondent at the trial, and as she had not given evidence at the committal, she was required to give evidence in an inquiry of the kind sanctioned in R. v. Basha[1].

2 The respondent had originally attended court pursuant to a subpoena which had been served upon her on 26 September. It required her presence on Friday 30 September. She attended accordingly, although she was not then called. A copy of the transcript of the proceedings of that day is exhibited to an affidavit dated 17 October 2005 which the respondent, who was also the deponent, has filed in this proceeding. It reveals that senior counsel for the Crown in the trial of Messrs Faure and Goussis then informed the trial judge that on Monday 26 September he had determined that the respondent should be called as a witness in the trial. As the prosecutor (Mr Parsons SC) told his Honour:

"... the matters the Crown seeks to lead from this witness are effectively that she spent the last afternoon with the deceased [Lewis Caine] and that she is able to tell the jury what he was doing, where he was going and in respect of the phone calls he received. She is also able to talk about the financial situation of the deceased man and she is also able to talk about his interest or not in a motor vehicle. Those, your Honour, are the matters - subject to the one other matter that I am being oblique about because I think it is best to be oblique - but subject to that other matter they are the matters."

3 After some discussion, Mr Heliotis QC, (who had sought, and been granted, leave to appear for the respondent) suggested that the prosecution should not assume that his client would answer any questions. He continued:

"She would at first instance, as I understand it, claim [the] privilege [against self-incrimination] ... And my understanding, frankly, your Honour, is that if that were not successful then she would stand mute and take whatever the court meted out to her for so doing. I say that so that the prosecution may be aware that if there be no real need to call this witness it ought to be avoided. I do not want to see a legal practitioner in contempt of court. I am also mindful that I am running a trial ... in which my instructing solicitor is Ms Garde-Wilson; and frankly I need her there rather than in gaol ...

I tell your Honour that Ms Garde-Wilson is frankly terrified for her life."

4 So that these remarks may be read in context, I interpolate to note that the trial to which Mr Heliotis referred was that of Carl Williams, who had been charged with murder. That trial commenced on 3 October 2005 and was, at the time of preparing this judgment, proceeding. It, together with the trial of Messrs Faure and Goussis, was linked to a number of relatively recent killings in the Melbourne underworld. The respondent's position, and that of the Court, is complicated by her position as a former de facto wife of one of the victims, and as the solicitor acting for a number of persons who are alleged to be members of that underworld. As a consequence, her evidence in the proceeding before me, or in any other proceeding directly or indirectly arising out of these deaths, could impact upon other proceedings similarly arising. Another consequence is the need for circumspection in the publicity given to both that evidence and to certain aspects of some or all of the relevant proceedings.

5 Mr Heliotis' submission received the following response from senior counsel for the Crown:

"... obviously we hear what our learned friend Mr Heliotis tells your Honour from the bar table, and we are as concerned as anyone not to put a practitioner in fear of her life, and clearly we will weigh up those matters. But at the moment ... it is hard, with respect, for us to understand how any of those matters which, in themselves are uncontroversial on their face, could give rise to those concerns. But if someone explains [that] to us ... then obviously we will take it into account. But at the moment, your Honour, our resolve is to press ahead ..."

6 The respondent was in court again on Monday 3 October. Senior counsel then moved on her behalf that the subpoena be set aside as an abuse of process. This, he suggested, was so because the Crown knew very well that she would not answer questions. No ruling on that application was made. Given that the duty of all who are called as witnesses is to answer relevant questions unless excused from doing so, his Honour nevertheless indicated (in what seems to me, with respect, to be appropriately firm language) that, on its face, the submission had little attraction.

7 That, in relation to the respondent's position as a potential witness in the Faure/Goussis trial, is the point that had been reached at the time when, on Friday 7 October, the respondent finally entered the witness box. Some background material is relevant to what happened next.

8 The plaintiff is a legal practitioner with a current practising certificate. Between January 2000 and June 2004 she was an employee solicitor in the firm of Pryles & Defteros. The firm specialised in criminal law. It was there that, when Mr Caine visited the firm seeking legal advice, the two first met. They commenced a relationship, which by mid 2002 had become that of de facto man and wife.

9 On Thursday 29 April 2004, some eight days before Mr Caine's murder, the respondent was at work when she saw him, in the reception area, talking to two men whom she now knows (or at least suspects) were, respectively, Keith Faure and Evangelos Goussis. She had not seen them before. Mr Caine told her that they were "old time crooks".

10 The following Saturday week (8 May 2004), at about 7.00 p.m., Mr Caine received a telephone call in the respondent's presence. As she knew that her partner had arranged a meeting at about that time, and because she suspected that the meeting was to be with Messrs Faure and Goussis, and Mr Faure's brother Noel, the respondent also suspected that the telephone call came from one or other of them. At the completion of the call, Mr Caine told the respondent that the meeting would not take place until 8.00 p.m. He left home at 7.45 p.m. on his way to attend. He never returned. His body was later found in Brunswick with a single bullet wound to the head.

11 In the days that followed, the respondent assisted the police with their enquiries. The first relevant conversation took place shortly after her partner died, when (having been asked on the evening of 9 May 2004 whether she could help) she made contact with one or other or both of Detective Sergeant Martin Robertson or Detective Senior Constable Andrew Stamper, each of whom is or was at material times attached to the Purana Task Force. The respondent told the policemen that she believed that Messrs Faure and Goussis were involved, possibly with others, in Mr Caine's death. Similar contact followed. In an affidavit sworn in this proceeding on 14 October 2005, the respondent said (at paragraph 8):

"Since the death of Lewis Caine I had approximately half a dozen meetings with Stamper and Robertson. I was advised that the information that I was providing was being treated as highly confidential and that only a limited number of Purana members were aware of my assistance."

12 In early October 2005, the respondent applied to be admitted to the Witness Protection Program administered by the Victoria Police. In an affidavit sworn on 6 October in support of that application, she explained that she associated Messrs Faure and Goussis with the death of Lewis Caine "because I knew that the deceased was to meet [them] on the evening he was murdered." Her affidavit continued:

"At around this time Robertson mentioned the Witness Protection Program to me. This was in the context of whether I was able to provide relevant evidence ... At this time I had not made a statement, I was ignorant of the nature and antecedents of Keith Faure, [2] nor had I received any threats.

Within a week or so of this conversation but prior to 20 May 2005 I became aware that Keith Faure had an appointment that day to attend the offices of Pryles & Defteros to see [George] Defteros [a senior partner in the firm]. Upon discovering this I immediately telephoned Robertson and informed him. I then left the office.

Either later that day or the following day I was informed by Defteros of a direct threat from Keith Faure. The threat was to the effect that I should stop talking about him otherwise Defteros and by inference I would be killed. I immediately contacted Robertson and informed him.

I also asked Defteros to speak to the solicitor for Keith Faure ... to inform him that I had not made a statement nor would I be making one. I was later informed by Defteros that he had conveyed my message to [the solicitor].

On 20 May 2005 (sic) I was contacted by Robertson and told that Keith Faure and Goussis had been arrested and were being held in custody. Robertson asked if I could be picked up and conveyed to the St. Kilda Road office of the Victoria Police. I agreed.

Whilst at St. Kilda Road I provided a statement to Stamper. I was asked to sign the statement. I told Stamper that I would not sign the statement as 'I didn't want to get my head blown off'. The content of the statement is true ...

At around this time Robertson and Stamper suggested that I should move interstate. They also informed me of the nature and antecedents of Keith Faure. I was told that he was an extremely dangerous man. Whilst I considered a move interstate an option as I had not signed a statement and did not intend to give evidence against Keith Faure or Goussis unless compelled to do so, I believed at that stage I was not at risk of serious harm."

13 Both Mr Stamper and Mr Robertson gave evidence before me. Each swore that he had no recollection of any conversation with the respondent during which she informed him of "a direct threat from Keith Faure" which, immediately before she made contact with the police to tell them about it, had been passed on to her by Mr Defteros. Mr Stamper said that, so far as he could remember, he first learnt of that threat while taking the statement which, as the respondent says, she "provided" on the night of 19/20 May at the St Kilda Road offices. Mr Robertson said that the threat first came to his attention when told about it by Mr Stamper following the taking of the statement. Mr Robertson was asked in cross-examination whether the respondent telephoned him "at some stage" and told him "that Keith Faure had come into the office". He replied that he could not "recall any conversation of that type, and I would refute that it occurred."

14 I nevertheless have no doubt that the respondent was told by Mr Defteros that he, and through him the respondent, had been threatened by Keith Faure. Her account as given to Mr Stamper on 19/20 May was confirmed some 18 days later when, on 7 June, a meeting took place between Mr Defteros and a registered police informer The informer was equipped with a tape recorder. A transcript of the recording has been made, and was provided by the police to the respondent following the issue by her of a subpoena requiring its production. The transcript is, typically for the transcript of secretly recorded conversations, disjointed and incomplete. A portion of it has Mr Defteros recounting an exchange he had with a person whose name the transcript does not explicitly disclose but who appears (in the context, and given references elsewhere in the transcript to him by name) to have been Keith Faure. As I understand it, the respondent contends that she read the transcript as if the words inserted by me in square brackets accurately convey the full but unspoken import of what was said; and she therefore believed that Mr Defteros was speaking of Mr Faure when the former recounted that "he [Keith Faure] said that Zarah was going around saying that [Lewis Caine] was [on the night of his death] going to meet him [Faure] ... And that ... she should have kept her mouth shut because he [Faure] has got nothing to do with it [Caine's murder]." Mr Defteros, according to the transcript, is recorded as responding: "I said, 'yes, of course he [Faure] has got nothing to do with it' ... He [Faure] said, 'well you [George Defteros] tell her to keep her mouth shut because she's come out of your office and if she doesn't keep her mouth shut, I'll blame you'."

15 I take the latter part of this conversation to be something of a threat, if a threat at all, to George Defteros rather than to the respondent; and, if a threat, to be one that does not specify the harm that will follow disobedience. Otherwise, I accept as accurate what I take to be the respondent's reading of the transcript. Much depends upon the context, about which she knows more than I. I accept, too, that her position on the nature of the threat receives support from the police informer. In a statement made later that day to the police, the informer said of this conversation:

"George said that Keith Faure had been to see him and that Faure was upset about Zarah going around and telling everybody that [Caine] was out with Faure on the night he died. George said that Faure had threatened him and was holding him responsible for what Zarah was saying. 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."

16 The respondent obtained a copy of a transcript from the police following the issue of a subpoena. It does not appear how the informer's statement, or such part of it as came into the respondent's possession, was obtained. What is certain is that the respondent has assessed the evidence contained in each of the transcript and the statement as supporting her belief that her life is threatened. I accept that a threat was made. Whether it was directly against her, whether it was against her life, and how realistic it was, are other matters. I shall return to them.

17 The respondent justifiably asserts that each of Keith Faure and his brother Noel are violent men. So too is Evangelos Goussis. All three have a criminal record. According to the presentment filed in relation to the trial of Messrs Faure and Goussis for the murder of Lewis Caine, the former has (among many other convictions) two for manslaughter, three for assault occasioning actual bodily harm, two for assault by kicking, one for malicious wounding, one for assaulting police, and one for assaulting a prison officer. Mr Goussis has one conviction for attempted murder and five for offences against the gun laws. Each man also faces another, separate, charge of murder (the victim's name being Lewis Moran) and one of attempted murder (the victim being one Herbert Wrout). The police allege against them that the murder of Mr Moran was a contract killing. As for Noel Faure, his criminal history report as maintained by the police indicates that he has one conviction for murder and one for manslaughter. These are men with a history of violent law-breaking. Although Noel Faure is apparently in very poor health, the respondent is justified in classifying all three men as dangerous.

18 The respondent submits that, in any event, the police have confirmed her conclusion that certain criminals pose a threat to her. One of the bases for this submission is to be found in a passage of an affidavit sworn on 2 March 2005 by Detective Acting Inspector Gavan Ryan. Mr Ryan is currently in charge of Operation Purana, which (as I understand it) is the principal police response to the most recent spate of killings within Melbourne's underworld. He swore the affidavit "on behalf of the Victoria Police and the Chief Commissioner of Police." He refers in it to a number of summons served on the police seeking production of certain documents to the Magistrates' Court at which Mr Faure's committal was being conducted. These were, according to the deponent, described in one of the summons in such a way as to include "notes of conversations and diary entries taken by investigators in the course of discussions with [the respondent]". The application for an order requiring the disclosure of these documents was opposed by those on whose behalf the affidavit was sworn. In its attempt to show that this opposition was well founded, the affidavit continues (at paragraph 8):

"The information that forms the basis of these documents was provided in conference by Zarah Garde-Wilson. The disclosure of these documents would identify Zarah Garde-Wilson as the person who provided the information. That she should be so identified as having provided the information places her in danger of reprisals by those she has informed on."

19 The relationship between this passage and that from paragraph 8 of the respondent's affidavit sworn on 14 October (quoted at paragraph [11] above) was not explored in the hearing before me. It is nevertheless significant that, although the arrest and subsequent incarceration of Messrs Faure and Goussis in May 2004 has reduced their capacity to cause the respondent harm should they wish to do so, this did not prevent Mr Ryan swearing that the respondent would be endangered should she be identified as having provided the police with "the information" to which he refers in his affidavit of 2 March this year.

20 What that information is, the affidavit does not say. Mr Ryan was asked about it in re-examination before me. He said in response that it was information other than that contained in the statement (to which I return below) given to Mr Stamper during the night of 19/20 May 2004. When answering the question: "Was that material passed [to the police] on a confidential basis, as you understood the situation?" Mr Ryan said: "Yes, that's correct". I accept this evidence. It is supported by paragraph 8 of the respondent's 14 October 2005 affidavit. On the other hand, there has been no suggestion before me that any confidence has been betrayed. Nor has it been suggested that such would have been the result had the respondent given evidence.

21 The issue nevertheless remains a serious one. It may be that the information to which the respondent referred at paragraph 8 of her affidavit of 14 October is the same as that to which Mr Ryan referred at paragraph 8 his of 2 March. It may also be that it encompasses the "matter" about which, on 30 September, Mr Parsons (as he told Teague J) thought "it is best to be oblique". If so, its extraction from the respondent whilst she was giving evidence in the trial of Messrs Faure and Goussis might well have given rise to particular sensitivities.

22 According to Mr Stamper, the interview during which the respondent's (unsigned) statement was prepared was begun late in the evening of 19 May 2004, and concluded at 1.41 a.m. the following day. If either Mr Faure or Mr Goussis is or was a threat to the respondent, then the level of danger they present may have increased should they have become aware of the making of the statement. But even if they have, any resultant change in the respondent's vulnerability would necessarily have been at least partially offset by their incarceration. Their arrest occurred before the statement was made; and they have since remained in custody. Noel Faure and another brother are likewise in gaol. At the same time it is true that some prisoners have friends outside who may be willing to act as agents by whom the will of the prisoner may be given effect.

23 Before the arrest of Messrs Faure and Goussis, the police had indicated to the respondent that they were concerned for her safety. It may be that this concern arose out of the alleged threat about which the respondent was informed by Mr Defteros. She says that she "immediately" conveyed to Detective Sergeant Robertson the fact that the threat had been made. If so, he knew of it well before she attended at the St Kilda Road offices on the evening of 19 May. Yet Detective Senior Constable Stamper, who was at the time working closely with Mr Robertson, maintains that he was unaware of the threat until, when asked to sign her statement early the following morning, the respondent proffered it as an explanation of her refusal to do so.

24 In her affidavit of 6 October, sworn in support of her application for admission into the Witness Protection Program, the respondent set out her reasons for seeking such inclusion. It was, she said, her strongly held belief "that in the event that I testify my life is in serious danger." She continued:

"I believe the threat to be real. I believe that Keith Faure is a person who is both willing and able to put the threat into effect, whether immediately or at any time in the future. I genuinely believe that my safety and welfare will be in jeopardy for the remainder of my life if I testify.

Since my counsel raised the issue of witness protection I have received threatening stares from both Keith Faure and Goussis in court.

In the event that I testify under oath I will truthfully answer all questions put to me by both the prosecution and defence, subject to any lawful claim of privilege that might arise. In particular I will testify:

(i) that the content of my statement of 20 May 2005 is true and correct;

(ii) that at no stage did the deceased speak about coming into a large sum of money, nor of borrowing a large sum of money from either Keith Faure or Goussis;

(iii) that the deceased never hit me or treated me badly;

(iv) that the deceased had no interest in purchasing a motor vehicle, in particular he had no interest in a 4 wheel drive. But he was interested in purchasing a motor bike.

I understand that the significance of this evidence is to demonstrate lies told by Keith Faure and Goussis in their records of interview.

In addition to these matters and subject to the satisfactory resolution of charges laid against me by Detective Senior Constable Ian Marr which allege that I gave false and misleading evidence before the A[ustralian] C[rime] C[ommission] I will testify about my knowledge and/or handling of any guns that were connected with the deceased."

25 I note the reference to the charges laid by Mr Marr. This is a topic to which I shall return. I also note that the respondent does not appear to refer at this point to the information which Mr Ryan says he had in mind when swearing his affidavit of 2 March. Nor does she refer to her knowledge that, as she parted from Mr Caine for what turned out to be the last time, he was on his way to meet Messrs Faure and Goussis. This is a subject about which her evidence at the trial may have been very important.

26 According to the respondent, the threat conveyed to her by Mr Defteros, instilled in her a fear that remains to this day. Her fear is compounded, she says, by two factors. First, at a time she does not specify, she was warned - by the informer who recorded the conversation with Mr Defteros - to (as she says in her affidavit of 14 October) "get out of the State". Secondly, she has received at her office, sometimes more than once in a day, some half dozen telephone calls that have originated from Barwon Prison. These have been introduced in the standard way for such telephone connections: by a recorded voice announcing that a call has been made from an inmate of the prison, but without identifying the particular caller. Forearmed by the announcement, the recipient is of course in a position to hang up before being connected to whichever prisoner has placed the call. Because the respondent has clients in the gaol, and because one of those clients may be the caller, she has not done this. But there has been no word from the other end; only sufficient noise to indicate that the connection has been made. Meanwhile, the anonymous prisoner has attempted, or so the respondent has surmised, to frighten her by his silence.

27 As the respondent frankly conceded, there have been no such instances since she received a summons to give evidence at the trial of Messrs Faure and Goussis. She also accepted that there had been no explicit threats since that conveyed to her by Mr Defteros.

28 The Crown accepts that, at least initially, the respondent was in genuine fear. It accepts that the police were prepared to take steps to assuage her concerns. Although on 9 May last year her concerns were non-specific, the police appreciated that she might feel safer if she did not sleep at home. She was accordingly offered hotel accommodation for a short time at police expense. When on 17 May she told them that she may have been followed by someone (a male), she was again offered a hotel room at police expense for a limited period; and arrangements were made for hourly patrols of her residence that evening. The police then considered that she was "at medium risk", as is confirmed by a note made by Mr Robertson on 11 May: "Meeting, concerns for safety. Medium risk." In her affidavit of 6 October 2005, the respondent deposes that "[a]t around this time Robertson mentioned the witness protection program to me." In his oral evidence given in this proceeding, Mr Robertson agreed that witness protection was discussed, but added that he did not suggest to the respondent that she enter the program.

29 All this preceded the arrest of Messrs Faure and Goussis. The police witnesses called before me gave evidence that in their assessment the threat had since diminished. Mr Ryan swore that, because Keith Faure "is in prison he is not a current threat " and added that that conclusion was "based on all the information that we can glean within the entire crime department". He also said that "we do not have any information ... within the crime department [which includes the Purana data base] of any threats ... I mean, we have to be realistic, we can't monitor everyone 24 hours a day, but ... based on all the information and all the intelligence that we have got, over a long period of time, there are no threats that we are aware of."

30 This, then, is the background to the calling of the respondent to give evidence before Teague J on 7 October 2005. She was asked whether she had a relationship with Lewis Caine. She replied: "I am sorry, I am unable to answer any questions due to fear for my safety." She was then asked whether this meant any questions relating to her statement of 20 May. She replied: "I am unable to answer any questions." His Honour directed her to answer. Her response was: "I apologise, your Honour, but I am not willing to take that risk." Despite there being ample time in the three weeks that elapsed between that moment and the close of the Crown case on 21 October, the respondent's position did not change. So much is uncontested.

31 It is on the basis of this uncontested evidence that, on 12 October 2005 (admittedly, not three weeks but five days after the respondent had refused to answer questions put to her in the trial before Teague J), the Director of Public Prosecutions by Originating Motion commenced the present proceeding. The Director thereby seeks, among other orders, an order that the respondent be adjudged guilty of contempt of court and sentenced according to law. Particulars are given. They are that:

"On Friday 7 October 2005 at the Supreme Court sitting at Melbourne the respondent after being sworn as a witness upon the trial of R v Keith George Faure and Evangelos Goussis for the murder of Sean Vincent ... on 8 May 2004 refused to answer questions when directed to do so by the presiding judge his Honour Justice Teague."

32 It is settled that duress may be a defence to an allegation of contempt of court where a witness refuses to testify.[3] The burden of proof is, of course, upon the Crown. The fact of the respondent's refusal to answer any questions, and the fact that she persisted in this refusal despite having been directed to answer, is established. That burden having been discharged, it remains to the Crown to prove that she did not act under duress. In order to do this, the prosecution must in this case establish either that, when the respondent refused to answer, 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; or that there was no reasonable possibility that a person of ordinary firmness of mind would have yielded to the threat by refusing to obey the Court's direction. [4]

33 The standard of proof is the criminal standard. It follows that, unless I am satisfied beyond reasonable doubt that the respondent is guilty of contempt of court, I must find her not guilty.

34 The application of these principles to the circumstances of this case calls for some analysis. On the one hand, the authors of Arlidge, Eady and Smith on Contempt[5] assert that "[i]f there is a genuine fear of death or grievous bodily harm, it would take a person of considerable fortitude to resist, and any person genuinely threatened with such consequences will be able to say with some plausibility that his or her conduct falls within the scope of the defence." On the other hand, as Watkins LJ put it in R v Phillips:[6]

"The witness who refuses to testify may have at his disposal evidence of great importance, the absence of which from a trial may be a serious interference with the administration of justice. It may even defeat it. ... It is of the utmost importance that everyone called upon to testify in our courts recognises that he or she is under a duty to do so and that a refusal or neglect to perform that duty may have dire consequences for the proper administration of justice and for that person."

The same point was made by Potter J in R v Montgomery[7]. In giving the judgment of the Court (Roach LJ, Potter and Smith JJ) his Lordship said:

"Nothing which we say should detract in any way from the views expressed by the judge that where victims or witnesses to serious crime refuse to do their duty or succumb to threats or fear of reprisals by refusing to give evidence or answer questions, the result is a failure of law and order."

35 In R v Hurley[8], Smith J put forward what he termed "the following affirmative proposition". It has since been approved by the Full Court.[9] I have adapted it to the facts of this case, and in doing so have discarded as irrelevant for present purposes two of the eight conditions contained within it. So adapted, his Honour's proposition is as follows: If, when the present respondent declined to obey the direction of Teague J to answer the question he required her to answer, she was (i) under a threat that death or really serious injury would be unlawfully inflicted upon her were she to answer the question truthfully; and (ii) the circumstances were such that a person of ordinary firmness of mind would have been likely to yield to the threat by refusing, as did the respondent, to answer not only that question but also any questions; and (iii) the threat was present and continuing, imminent and impending; and (iv) the respondent reasonably apprehended that the threat would be carried out; and (v) she was induced thereby to disobey his Honour's direction; and (vi) she had no means, with safety to herself, of preventing the execution of the threat - then the respondent has a defence of duress.

36 The passages cited above from Phillips, Montgomery and Hurley would seem to place a burden on the respondent. It is important that witnesses answer relevant questions, especially when directed by the judge to do so; and that importance does not diminish when persons with a propensity for violence are on trial. Were it not so, might would prevail, and the rule of law would be gravely endangered. The occasions on which a witness should be excused for fear of the consequences if he or she is not so excused must be exceptional. Logic would suggest that the person asserting the existence of exceptional circumstances should bear the burden of proving those circumstances. And the proposition advanced by Smith J likewise suggests that it is for the respondent to demonstrate the existence of the elements necessary to defeat the charge. Otherwise, the prosecution must prove a negative.

37 Attractive though these propositions might at one level be, they are not the law. Here as elsewhere in the criminal law the prosecution must prove beyond reasonable doubt that the accused did not act under duress or out of necessity. Thus, in R v Emery, the Court of Criminal Appeal (Young CJ, Lush and Brooking JJ) said of the "affirmative proposition" expounded by Smith J in Hurley that:

"... correct though it be, it is not a proposition which is suitable for reading out to a jury. The form of the proposition is that where an accused has been required to do the act charged against him, then, if the eight conditions are satisfied, he has a defence of duress. If put to a jury in that form, however, there would be a danger that they would understand that the onus rested on the accused to establish the defence. As the law has developed since Woolmington's case [1935] UKHL 1; [1935] AC 462 the burden of rebutting duress, once evidence has been given that raises a reasonable doubt whether duress has been exercised, is on the Crown: see Smyth [1963] VR 737." [10][My emphasis.]

38 In the final sentence of the passage quoted above, the Court of Criminal Appeal recognised that the evidential burden of raising a reasonable doubt rests, as it must, on the accused. The prosecution - again, as it must - retains the legal burden of establishing that the accused did not act under duress. In Smyth, Sholl J observed[11]:

"In my view, once evidence is given on which a jury may hold that duress in the necessary sense was exercised, or once evidence is given that raises a reasonable doubt whether duress in that sense was exercised against the accused, the onus is on the Crown to rebut that evidence, because ... the onus is always on the Crown in the ultimate result to prove that the criminal act alleged against the accused person was the free and voluntary act of a responsible individual."

39 The relevant law was articulated by the Supreme Court of Canada in Perka v The Queen[12]. Dickson J, with whom Ritchie, Chouinard and Laler JJ agreed, was at the time referring to the defence of necessity rather than that of duress. The passage set out below is nevertheless, as it seems to me with respect, very helpful:

"Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the court, through his [or her] own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused."

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.

[1] (1989) 39 A. Crim. R. 337

[2] This statement must be read in the light of the respondent's assertion to the police that she had been informed by Mr Caine that the two men with whom, on 29 April 2004, he had been speaking in the reception area at the offices of Pryles & Defteros, were "old time crooks".

[3] K (1984) 78 Cr. App. Rep. 82. (C.A.)

[4] R v Abusafiah (1991) 24 NSWLR 531 at 544-545 per Hunt J.

[5] 2nd Edition, Sweet & Maxwell, 1999 at para. 10-156.

[6] (1983) 78 Cr. App. Rep. 88 at 94.

[7] [1995] 2 All ER 28 at 34 (CA)

[8] [1967] VicRp 57; [1967] VR 526 at 543.

[9] R v Emery (1978) 18 A Crim R 49; R v Dawson [1978] VicRp 51; [1978] VR 536

[10] (1978) 18 A Crim R 49 at 56

[11] at 738

[12] (1984) 14 C.C.C. (3d) 385 at 404