The Queen v D A & G F K [2016] VSCA 325

HUMAN RIGHTS - Presumption of innocence - Evidential burden does not limit presumption of innocence - Charter of Human Rights and Responsibilities Act 2006 s 25(1) - R v Holmes [1988] 1 SCR 914; R v Whyte [1988] 2 SCR 3, discussed.

CRIMINAL LAW - Coercive powers under Major Crimes (Investigative Powers) Act 2004 s 31 - Obligations of Chief Examiner prior to questioning witness - Chief Examiner must inform examinee of right to refuse if reasonable excuse - Procedural fairness - Chief Examiner not required to determine whether excuse is reasonable or give reasons - R v QX [2015] VSC 784, disapproved.

CRIMINAL LAW - Coercive powers of Chief Examiner - Chief Examiner not required to assure witness answers not to be communicated to prosecuting authorities - R v QX [2015] VSC 784, disapproved.

1 The Chief Examiner commenced proceedings by separate originating motions against DA and GFK, in which he applied to the Supreme Court that they be punished for contempt of the Chief Examiner pursuant to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 ('the Act'). McDonald J ordered that questions arising in each proceeding be referred to the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986. As there is a common question contained in both referrals, the parties agreed that this Court should hear both applications together.

2 DA and GFK ('the examinees') attended before the Chief Examiner in answer to their respective witness summonses and were examined by the Chief Examiner pursuant to s 36 of the Act. Both examinees refused or failed to answer certain questions put to them by the Chief Examiner. Section 49(1)(b) of the Act provides that a person who without reasonable excuse fails to answer any question relevant to the subject matter of the examination is guilty of contempt of the Chief Examiner.

3 The Chief Examiner in the proceeding against DA seeks leave to argue the following three questions referred by McDonald J:

1. On an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, by reason of the person's refusal or failure to answer a question relevant to the subject matter of the examination, contrary to s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004 (the Act):

1.1 Is it an element of the contempt that the person did not have a reasonable excuse for refusing or failing to answer the question?

1.2 If the answer to question 1.1 is 'Yes':

(a) does the person against whom the order is sought carry the evidential burden of raising the existence of a reasonable excuse for refusing or failing to answer the question; and

(b) does the applicant then carry the burden of proving beyond reasonable doubt, that the respondent did not have a reasonable excuse for refusing or failing to answer the question?

1. Is it an essential precondition to an application to the Supreme Court for an order that a person be punished for contempt of the Chief Examiner, contrary to section 49(1)(b) of the Act, that the Chief Examiner:

2.1 First give the person, in the course of the person's examination, an opportunity to advance his or her excuse for not answering the question;

2.2 Then, if the Chief Examiner forms the view that the excuse was not a reasonable excuse for refusing or failing to answer the question, inform the person of the Chief Examiner's view; and

2.3 Finally, allow the person to reconsider his or her position?

1. Does the omission of the Chief Examiner, when examining a person under the Act, to assure that person that answers given to the Chief Examiner will not be communicated to prosecuting authorities or used to compel the person to become a witness in a prosecution against alleged perpetrators of an organised crime offence, justify the conclusion that:

3.1 The Chief Examiner has failed to establish, as an element of the act of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act, that the person had no reasonable excuse for refusing or failing to answer a question relevant to the subject matter of the examination; or

3.2 The person had a reasonable excuse for refusing or failing to answer a question relevant to the subject matter of the examination and, therefore, a good defence to the charge of contempt of the Chief Examiner contrary to s 49(1)(b) of the Act?

4 In the proceeding against GFK, McDonald J, at the request of both parties, directed that a question in identical form to question 1 in the proceeding against DA be referred to the Court of Appeal constituted to hear argument in respect of the questions referred to the Court of Appeal in DA.

5 Each of the three questions in DA had been considered by King J in R v QX.[2] Her Honour held that it was an element of the contempt under s 49(1)(b) that the examinee did not have a reasonable excuse for refusing or failing to answer a question relevant to the subject matter of the examination and that the Chief Examiner bore the onus of establishing that element of the offence beyond reasonable doubt.[3] Before McDonald J, the Chief Examiner foreshadowed that he intended to submit that King J had erred in her construction of s 49(1)(b). He contended that, upon its correct construction, the legal onus lay on the examinee to prove on the balance of probabilities that he had a reasonable excuse for refusing or failing to answer the question. The Chief Examiner intended to rely upon the reasoning of Kyrou J in R v Debono[4] who had given such a construction to s 36(3) and (4) of the Act. Those provisions were concerned with the offence of refusing or failing without reasonable excuse to take an oath or make an affirmation when required by the Chief Examiner to do so.

6 In his reasons for referring the questions to this Court, McDonald J stated that it is arguable that the construction given to s 49(1)(b) by King J in QX is inconsistent with the construction given to s 36(3) and (4) by Kyrou J in Debono and that the reasoning of King J is erroneous. In deciding to refer the questions, McDonald J also took account of the fact that, should he dismiss the contempt application, the Chief Examiner had no right of appeal.

7 Before turning to the questions we should note in passing that at the commencement of the hearing of the applications, counsel for GFK abandoned an argument raised in his written case that there was no jurisdiction to proceed under s 17B(2) of the Supreme Court Act 1986. He had foreshadowed an argument that as the Originating Motion was filed in the Court's criminal jurisdiction and the order of McDonald J purported to be made in that jurisdiction, the civil procedure under s 17B of the Supreme Court Act was not available.[5] That argument was rightly abandoned. While it is correct to say, because of the definition of 'proceeding' in s 3(1), that the procedure under s 17B(2) is not available in a criminal proceeding, proceeding for contempt of court is not a criminal proceeding.[6] By virtue of s 49(10) of the Act, the same result applies in respect of a proceeding for contempt of the Chief Examiner under s 49.

Contempt of Chief Examiner

(1) A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person -

(a) fails without reasonable excuse to produce any document or other thing the person is required by the witness summons to produce; or

(b) being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject matter of the examination; or

(c) engages in any other conduct that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that court.

9 The examinees place particular reliance upon the contrast between the form of that provision and the relevant portion of s 36, considered in Debono. The relevant part of that provision are in these terms:

Taking of evidence

(3) A person appearing as a witness at an examination before the Chief Examiner must not, when required in accordance with subsection (2) either to take an oath or make an affirmation, refuse or fail to comply with the requirement.

(4) A person who, without reasonable excuse, contravenes subsection (3) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

10 Section 37 makes it a substantive offence to fail or refuse to answer questions without reasonable excuse. It is in these terms:

Failure of witnesses to attend and answer questions

(1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse -

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

(2) A person appearing as a witness before the Chief Examiner must not, without reasonable excuse -

(a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or

(b) refuse or fail to produce a document or other thing that he or she was required to produce.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

11 The examinees rely upon the golden thread which is present always throughout the web of the common law that it is for the prosecution to establish the guilt of the accused. They contend that the issue of construction raises the question whether there is a statutory exception to that principle. The examinees point to a purpose of the legislative regime under the Act which is 'to provide for a regime for the authorisation and oversight of the use of coercive powers'. They rely upon the obligation under the Interpretation of Legislation Act 1984 that a construction that would promote the purposes or object underlying the Act shall be preferred.[7] To impose the burden of proof upon the accuser is said to be more consistent with the purposes of the Act.

12 The exercise of coercive powers represents a derogation of fundamental individual rights including the privilege against self-incrimination.[8] Both the substantive offence and the offence of contempt for refusing or failing to answer questions result in criminal sanctions for their breach. The Act seeks to strike a balance between the right to use coercive powers and a level of protection of individual rights by including the exception, 'without reasonable excuse,' for the substantive offence as well as the offence of contempt.

13 The examinees contend that the focus by Kyrou J in Debono on the need for efficacy of the coercive powers regime adopts too narrow an approach to the purpose of the legislation and the protection which it affords an examinee. They submit that adopting orthodox canons of construction, the protection afforded by the exception 'without reasonable excuse', should not be given a narrow scope of operation.[9]

14 In Debono, the applicant submitted that under s 36(4) of the Act, he had only an evidential burden to point to evidence that raised the question of a reasonable excuse and that it was a matter for the Crown to establish beyond reasonable doubt the absence of that excuse. Kyrou J rejected that submission, concluding that the examinee bore a legal onus to establish on the balance of probabilities that he had a reasonable excuse. Informed by the decisions of the High Court in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen,[10] Dowling v Bowie[11] and Vines v Djordjevitch,[12] Kyrou J observed that if an exculpatory provision is part of the definition of the grounds of liability, the onus will be on the prosecution to prove that the exception does not apply, but if the exception is in a separate provision from the definition of the grounds of liability and provides a basis for negating a liability that would otherwise arise, the onus of proof will usually be on an accused.[13]

15 This distinction was discussed in Chugg v Pacific Dunlop Ltd.[14] Dawson, Toohey and Gaudron JJ said:

For the purpose of assigning the onus of proof, a distinction is made between the requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an exception) which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch. The distinction does not depend on the rules of form or logic: Dowling v Bowie. Rather a categorisation of the provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention 'to impose upon the accused the ultimate burden of bringing himself within it'. Director of Public Prosecutions v United Telecasters Sydney Ltd. The intention may be discerned from express words or by implication.[15]...

Section 168 of the Magistrates (Summary Proceedings) Act and like legislative provisions leave the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction. See the discussion of s 14 of the Crimes Act 1914 (Cth) in Dowling v Bowie, at p 145. And, despite the language of s 168 and like legislative provisions, 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': Dowling v Bowie, at p 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception 'whether it does or does not accompany the description of the offence'.

One indication that a matter may be a matter of exception rather than part of the statement of the general rule is that it sets up some new or different matter from the subject matter of the rule. ... If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.[16]

17 GFK submits that the application of these rules leads to certainty in the interpretation of legislation because the rules are well known to drafters and are applied by them in drafting the legislation. The examinees submit that the form of s 49(1)(b) differs so markedly from that of s 36(3) and (4), that the legislative intent is clear that the onus rests upon the Chief Examiner to prove beyond reasonable doubt that the examinee did not have a reasonable excuse.

18 The Chief Examiner submits that the reasoning of Kyrou J and the authorities therein cited support a construction of s 49(1)(b) which places the onus of proof to establish the exception upon the examinee and not upon the prosecution.

19 In Ganke v Corporate Affairs Commission[17] the New South Wales Court of Criminal Appeal found that the onus of establishing a reasonable excuse under s 375(9) of the Companies Code was intended by the legislature to be placed upon the person charged. The terms of the provision were that 'a person who without reasonable excuse fails to comply with a provision of this section ... is guilty of an offence'. Hunt J delivering the primary judgment said:

In each case, it must be a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (and so to be proved by the Crown), or whether it is to be intended to be a ground by which criminal liability may be avoided (and so to be proved by the accused).[18]

20 Critical to the construction arrived at was the conclusion that the excuse which prevented the failure from becoming an offence was that the excuse would 'necessarily be comprised of facts which are additional to those which constitute the failure to comply'.[19] Added to that consideration was the circumstance that those additional facts would in almost every case be solely within the knowledge of the director or the officer of the company who is charged.[20] Hunt J went on to clarify

20 that the onus 'is an ultimate legal onus which the charged person bears; it is not an evidential onus'.[21]

21 Kyrou J recognised in Debono that while the form and structure of the exculpatory provision is important, the question is ultimately to be determined by the substance of the provision rather than its form and structure. He concluded that the phrase 'without reasonable excuse' did not form part of the definition of the grounds of liability under s 36(3) of the Act but introduced a new matter the existence of which provided an exception to criminal liability that would otherwise arise. For that reason and because the existence of facts that might constitute a reasonable excuse would ordinarily lie within the exclusive knowledge of an accused, Kyrou J concluded that it was for the accused to prove on the balance of probabilities the existence of a reasonable excuse.[22]

22 The examinees DA and GFK submit that R v QX should be followed as King J had correctly construed s 49(1)(b). Her Honour relied upon the structure of the provision and in particular the fact that the words 'without reasonable excuse' are placed within the description of the offence. It therefore formed part of the definition of the grounds of liability under s 49(1)(b) of the Act. Her Honour said:

The words 'without reasonable excuse' do not introduce, as a new matter, in a separate section, an exception to the criminal liability that otherwise arises. Unlike the structure and form of subsections 36(3) and (4), considered in Debono, the definition of the grounds of liability include the relevant words. The distinct placement of the words within the grounds of liability, give a clear indication that Parliament intended that it should be an element of the offence that the Chief Examiner must prove beyond reasonable doubt.[23]

23 The Chief Examiner concedes in his written submission that the structure of s 36(3) and (4) better supports the characterisation of that provision as raising a new matter by way of exception. That said, he submitted that cases such as Chugg,[24] Vines v Djordjevitch[25] and Dowling v Bowie,[26] which placed the burden on the prosecution, are clear examples where the exception was not a new matter and so fell within the subject matter of the rule and where the knowledge was not peculiarly in the possession of the accused.

24 Both the examinees and the Chief Examiner accept that it is unlikely that the legislature intended that the burden of proving the existence of a reasonable excuse should differ between the substantive offence and the offence of contempt. It was for that reason that, following the decision by Kyrou J in Debono in 2013, s 37(2) of the Act was amended by Act No 55 of 2014 to bring it into line with its contempt counterpart. Prior to that time the offence of refusing or failing to answer a question contained no exception of reasonable excuse. Parliament chose to introduce the exception of reasonable excuse within s 37(2) in a form which more closely resembles that in s 49(1)(b) and not in the form in which the exception appears in s 36(3) and (4). The examinees contend that the legislature was aware of the construction given to s 36(3) and (4) in Debono, and that by adopting the form utilised in s 37, must have intended that for proof of the substantive offence of refusing or failing to answer a question, the legal burden of proof of the absence of reasonable excuse should rest upon the prosecution.

25 For present purposes, we put to one side the anomaly that remains between the substantive offence of refusing to take an oath or make an affirmation in s 36(3) and (4), which allows for a reasonable excuse for failing or refusing to do so, and contempt of the Chief Examiner for refusing to be sworn or to make an affirmation under s 49(1)(b) which does not allow for a reasonable excuse.

26 The draftsperson has chosen a structure in s 49(1)(b) which suggests that the exception is included within the statement of the rule. It is in marked contrast to the form employed in s 36(3) and (4). The form of the provision is not however determinative as to the construction that it should be given. The Chief Examiner contends that the different form does not overcome the intent of the provisions determined by their language, context and purpose. He submits the purpose of the provisions is to criminalise non-compliance with the coercive powers of the Chief Examiner. The obligation to answer can only be avoided where the examinee has a reasonable excuse which the Chief Examiner contends is exclusively within the knowledge of the examinee.

27 As a general rule, the proving of a negative is an exceptional burden to impose on a litigant, though the rule is by no means uniformly true.[27] Another such rule is that if a matter is peculiarly and solely within the knowledge of a party then the burden is upon that party to prove it, whether it be of an affirmative or a negative character.[28] In Dowling v Bowie[29] Dixon CJ said:

The non-existence of such a declaration therefore forms one of the necessary facts necessary to bring the person to whom liquor has been sold within the purview of s 141. It is a fact which an informant, having access to the file of Gazettes or an official list of exempt aboriginals and half-castes, would have no difficulty in proving but it is not a fact that would be within the knowledge of the party proceeded against, nor would it be particularly easy for him to disprove it.

All substantial reasons point to the conclusion that it is part of the case of an informant that the person to whom liquor has been supplied has not been excluded from the definition of aboriginals or half-castes under s 3A.[30]

28 In R v Sciretta,[31] Kaye J said that when facts are peculiarly within the knowledge of a party, that constitutes a powerful consideration in construing enactments; he thought it to be of the utmost persuasive importance in taking the view that the burden lay upon the defendant.

29 King J rejected the same contention by the Chief Examiner in QX. Her Honour said:

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

30 King J considered that when an examinee declines to answer a question of the Chief Examiner relevant to the subject matter of the hearing, the Chief Examiner will then ask the examinee whether he or she has a reasonable excuse for such a failure 'and must determine whether there is no reasonable excuse before the examinee could be charged with contempt'.[33] King J assumed that if the person provided no excuse at the 'time of the hearing' then the Chief Examiner had no excuse at all, let alone a reasonable one.

31 In this regard, the assumptions which King J made as to the form which the proceedings must take where an examinee refuses to answer a question are not, with respect, correct. First, it is not for the Chief Examiner to 'determine' whether the examinee has no reasonable excuse, before he or she could be charged with contempt. Section 49(2) states:

If it is alleged or appears to the Chief Examiner that a person is guilty of contempt of the Chief Examiner, the Chief Examiner may -

(a) issue a written certificate charging the person with contempt and setting out or attaching details of the alleged contempt (certificate of charge); and

(b) issue a warrant to arrest the person (arrest warrant).

32 Nothing more is required than that it be 'alleged' or 'appears' to the Chief Examiner that the examinee is guilty of contempt before a certificate of charge may be issued. Second, the question which must be determined upon the hearing of the contempt charge in the Supreme Court is whether the examinee had a reasonable excuse for failing to answer the question, not whether such an excuse was articulated or necessarily appreciated at the time of the hearing. In Ganin v New South Wales Crime Commission,[34] which King J cited as supporting her conclusion,[35] Kirby P (with whom Meagher JA and O'Keefe AJA agreed) made these observations with respect to the examinee Ganin who had submitted that he had 'a reasonable excuse' for failing to answer a question put to him at a hearing before the Commission:

For the Commission it was urged that the Court should not permit Mr Ganin to expand the assertions of his 'reasonable excuse' beyond those stated by him before the primary decision-maker, that is, Mr Briese. I do not agree. As stated, the issue is not whether the objecting witness expressed a reasonable excuse, but whether he or she had a reasonable excuse at the time of the refusal or failure to answer a question. In the nature of things, some witnesses will be without legal representation. They may not then be able to express, or even conceive, the lawful grounds upon which they have a 'reasonable excuse' to refuse or fail to answer a question. If parliament had intended to confine them to the 'excuse' expressed at the time, it would have so provided. For the reasons already given, I would decline to adopt a narrow construction of the excuse provisions of s 18(1) and s 18(2). To do so would defy the plain words of the Act.[36]

33 Where the onus of proof should reside will in part be informed by the degree of difficulty with which that onus of proof could be discharged. The examinees contend that to place the burden of proof upon the prosecution would not render the statutory prohibition contained in s 49(1)(b) incapable of enforcement. They submit, contrary to the contentions of the Chief Examiner, that the burden of proving the non-existence of a reasonable excuse would in most circumstances be capable of being readily discharged.

34 GFK maintains that it is inherently likely that an examinee will have volunteered at least some basis for refusing to answer at the time of the hearing. That happened in Debono, QX and Ganin. We doubt the correctness of that assumption. A primary purpose of the Act is to combat and reduce the incidence of organised crime offences; the Chief Examiner's questions will be directed to that end. The witness before the examiner will commonly have an association with the activity being inquired into and will be reluctant to co-operate. In that setting, it is a not unlikely occurrence that the excuse that is ultimately relied upon in the Supreme Court proceeding will not be articulated until the defence is embarked upon in the contempt proceeding.

35 Even if it were likely that some excuse is offered before the Chief Examiner, the reasonable excuse to be relied upon by the examinee during the contempt proceeding in the Supreme Court proceeding may be different from the excuse ultimately proffered at the hearing. An excuse may be disclosed for the first time in the Supreme Court proceeding or it may never be disclosed.

36 The question of construction is therefore to be determined in a contextual setting where the reasonable excuse will lie within the exclusive knowledge of the examinee until the examinee discloses, if at all, the excuse on which he or she relies in the Supreme Court. If the legal onus was to rest upon the prosecution to disprove the existence of a reasonable excuse, and if the examinee had not offered any excuse prior to the conclusion of the prosecution case in the Supreme Court, the prosecution would be unable to exclude the innocent hypothesis that the examinee had a reasonable excuse. It would be unable to resist a no case submission. Even if an excuse had been offered, the prosecution may still be unable to resist a no case submission.

37 The difficulty of proof to which we have referred would not be insurmountable if the examinee was obliged to identify the excuse relied upon. If the examinee bore an evidentiary burden, such excuse would cease to lie within the exclusive knowledge of the examinee.

38 There is no novelty in a statutory regime in which the accused bears an evidentiary onus but the legal onus remains upon the prosecution. The provisions of the Australian Crime Commission Act 2002 (Cth)[37] and the Australian Securities and Investments Commission Act 2001 (Cth)[38] concerning an examinee who fails to answer a question, place the evidential burden of reasonable excuse on the examinee. The Australian Crime Commission Act appears to have been the progenitor of those parts of the Act concerned with the exercise of coercive powers to compel answers.

39 It is a matter of significance that in the written case of DA and GFK, they concede that the examinee must bear an evidentiary onus of establishing a reasonable excuse. Although the examinees accepted that they bore the burden of pointing to or adducing evidence in support of a reasonable excuse, the entire focus of the parties' oral argument was upon which party bore the legal burden of proof. The Chief Examiner's written and oral submissions on question 1 made no reference to the examinees' concession that if the prosecution carried the legal burden of proof, it was still for the examinee to adduce or identify evidence of a reasonable excuse.

40 GFK further submits that only the construction which places the legal burden on the prosecution is compatible with right to the presumption of innocence provided for by s 25(1) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). GFK submits that as the words of the statute are capable of more than one meaning, the Court should give them whichever of those meanings best accords with the human right in question. GFK drew upon the judgment of the Chief Justice of Canada delivering the judgment of the Supreme Court in R v Whyte[39] to the effect that it was irrelevant to distinguish between elements of the offence and other aspects of the charge when enquiring whether the human right to be presumed innocent until proven guilty was infringed. The Chief Justice said:

The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted whilst a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.[40]

41 This analysis was cited with approval by Lord Nicholls in an opinion with which the remainder of the House of Lords agreed in R v Johnstone,[41] and was cited with apparent approval by this Court in R v Momcilovic.[42] Lord Nicholls said in Johnstone that the derogation from the presumption of innocence requires justification.[43] For a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence. After referring to the judgment of Dickson CJ in Whyte, Lord Nicholls said:

This consequence of a reverse burden of proof should govern one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to fact which, if they exist, are readily provable by him as matters within his knowledge or to which he has ready access.[44]

42 The Chief Examiner contends that GFK's reliance on Whyte is misplaced as it was concerned with the validity of a provision which deemed the person found sitting in the driver's seat of a vehicle to have been in the care or control of the vehicle. The consequence of that deeming provision breached the presumption of innocence because it required the trier of fact to convict in spite of a reasonable doubt. The Chief Examiner referred to R v Holmes[45] which concerned a 'reasonable excuse' provision. McIntyre J (with whom LeDain and La Forest JJ agreed) said that an accused in raising such a defence or excuse 'is not seeking relief because of an absence of guilt. He seeks relief despite his commission of the offence'.[46] The Chief Examiner submitted that the analysis in Holmes applied directly to a charge of contempt under the Act.

43 McIntyre J, who delivered the primary judgment in Holmes, shortly thereafter participated in the joint reasons in Whyte. The majority view in Holmes rested upon a construction of the provision, and not upon a question of the application of the presumption of innocence. The majority's construction of the provision meant that the burden of proof under the section had to be discharged by the prosecution without the benefit of any presumption before any need for defence arose. Nothing stated in the judgment of McIntyre J in Holmes detracts from the later statement of principle expressed in Whyte, it being applicable to the question of construction with which we are concerned.

44 Under s 32(1) of the Charter, legislation must, so far as possible consistently with its purpose, be interpreted in a manner that is compatible with rights under the Charter. This requirement is a new iteration of an interpretative responsibility that exists at common law.[47] Where more than one interpretation of a provision is available on a plain reading of the statute, then that which is compatible with rights protected under the Charter is to be preferred. Applying that interpretive rule, GFK submits that it would be incompatible with the presumption of innocence under s 25(1) of the Charter if s 49(1)(b) was construed so as to place on the accused the burden of establishing that he or she has a reasonable excuse.

45 The Act was introduced in 2004, prior to the introduction of the Charter. The s 49 contempt provision had a sunset clause which was extended by the Major Crime (Investigative Powers) and Other Acts Amendment Act 2008. As the amending Act was introduced after the commencement of the Charter a Statement of Compatibility was required in relation to s 49 when its operation was continued. The Minister referred specifically to the provision for reasonable excuse within the s 49(1) contempt provision, in his Statement of Compatibility:

Section 49(1) provides that a person is guilty of contempt if the person fails without reasonable excuse to: produce a document or other thing; or refuse or fail to answer certain questions. This provision imposes an evidential burden only on an accused to raise the possibility of a reasonable excuse. Ultimately, the burden remains on the prosecution to prove the offence beyond reasonable doubt. Accordingly, I consider that the provision does not limit the right to be presumed innocent in s 25(1) of the charter.[48]

46 As the Statement of Compatibility implies, were the provision not construed as imposing only an evidentiary burden on the accused, it may limit the right to be presumed innocent under s 25(1) of the Charter. The Statement of Compatibility is properly used as an aid in the construction of the provision being enacted (here, s 49).[49]

47 For the reasons that follow, on the proper construction of s 49(1)(b), the examinee has the evidentiary burden of adducing or identifying evidence of a reasonable excuse. The onus then falls upon the prosecution to prove beyond a reasonable doubt that those facts or circumstances relied upon by the examinee do not constitute a reasonable excuse. King J was correct in QX to rule that the prosecution carries the legal burden, although our reasons for so concluding differ from her Honour's. But her decision is not in conflict with Debono. Though the form of the provision is not decisive, it provides some guidance as to the meaning that ought to be adopted. Section 49(1)(b) is in marked contrast to s 36(3) and (4) which Kyrou J construed as imposing the legal burden on the examinee because the exception was not placed within the statement of the rule. Cases such as Chugg and those preceding it indicate the importance of this consideration.

48 Reading s 49(1)(b) in this manner is compatible with the right to be presumed innocent because it cannot be said that an evidentiary onus, falling short of imposing any burden of persuasion, limits that right. In effect, the evidentiary burden requires the accused only to raise a reasonable doubt, upon which the burden falls on the prosecution to remove that doubt. As Dickson CJ explained in Holmes:

The basic principle of the common law has been that the accused need not prove a defence. Once an accused raises the possibility that a defence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required to disprove that defence beyond a reasonable doubt. The common la has not distinguished in this area between defences that challenge the existence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid criminal liability because of circumstances that excuse or justify that conduct.[50]

49 The above construction is consistent with the purposes of the Act, relevantly to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences: s 1(a). Section 49(1) itself makes it clear that it is only unjustified non-compliance with the coercive powers that is intended to attract criminal sanctions. While the examinee has the burden of adducing or identifying evidence of a reasonable excuse, if the excuse is not bona fide or is not reasonable, when judged objectively, it will not ordinarily be difficult for the prosecution to discharge its burden of showing that to be so. Neither the substance of the provision nor its context provide any indication that the persuasive burden of establishing that a reasonable excuse exists should rest upon the examinee.

51 In a passage from QX to which we have already made some reference, King J stated that the Chief Examiner must ask the examinee if he has any reasonable excuse for failing to answer the question and must determine that he has no reasonable excuse before he can charge him with contempt.[51] King J further said:

On the material presented in this case, it is also apparent, that no submissions on whether the excuse offered by the respondent was reasonable in the circumstances of the hearing was sought from either counsel representing the respondent, or those appearing on behalf of Victoria Police. No determination was made, or even stated to have been made by the Chief Examiner, that the explanation put forward by the respondent was not reasonable in the circumstances of the hearing and no reasons provided to the respondent as to why the excuse provided was not reasonable. Nor was any opportunity then afforded to the respondent to re-consider his position once told that the excuse he had put forward was unreasonable. In my view, these are necessary steps that are required to be taken by the Chief Examiner before a charge of contempt should be laid against a witness.[52]

52 In his reasons for referring question 2 to this Court, McDonald J stated that the Chief Examiner wishes to contend that there is no provision in the Act which supports the reasoning of King J as set out above. He noted that the Chief Examiner seeks the opportunity -

to test the existence of an obligation to inform an examinee as to the reasonableness of his/her excuse to refuse to answer questions and to provide the examinee with an opportunity to reconsider his/her position, as a precondition to a contempt charge being laid. I am satisfied that it is arguable that the Act does not impose upon a Chief Examiner obligations of the type identified by King J as a precondition to the laying of a charge of contempt pursuant to s 49(1)(b) of the Act.

53 Section 31 of the Act imposes a number of obligations upon the Chief Examiner before any question is asked of a witness at an examination. It relevantly provides as follows:

Preliminary requirements

(1) Subject to sub-s (2), before any question is asked of the witness at an examination, or the witness produces a document or other thing, the Chief Examiner must -

(d) inform the witness that legal professional privilege applies and of the effect of that privilege but that, subject to that privilege, it is an offence not to answer questions or produce documents or other things when required or give false or misleading evidence and state the penalties for those offences.

54 Section 31(d) is in an unsatisfactory form. It does not require the Chief Examiner to inform the witness that he or she need not answer a question if there is a reasonable excuse for not doing so. Although the anomaly in the substantive offence was corrected in 2014 by adding 'reasonable excuse' to s 37(2)(a), the terms of s 31(d) were not amended.

55 The Chief Examiner accepts that in the course of discharging the duty imposed by s 31 of informing the witness that it is an offence not to answer questions, natural justice would require that the Chief Examiner also inform the witness that he or she has the right to refuse to answer if there is a reasonable excuse for not doing so. The Chief Examiner also fairly acknowledged that if the witness refuses to answer a question, the Chief Examiner would be required to ask him what his reason is for failing to do so. These obligations would exist whether the Chief Examiner or the witness charged with contempt had the burden of proof.

56 The Chief Examiner submits that the 'necessary steps' identified by King J proceed upon a misconception of the nature of a reasonable excuse raised at an examination and involve a misconstruction of s 49(1)(b) of the Act.

57 We have already said that it is not the Chief Examiner's function to determine the reasonableness of the excuse put forward by the witness. The Chief Examiner's power to lay a charge pursuant to s 49(1) depends upon s 49(2), which provides that the Chief Examiner may issue a written certificate charging the examinee with contempt if it is 'alleged or appears to the Chief Examiner' that the examinee is guilty of contempt.

58 The Chief Examiner is not required by the Act or natural justice to give reasons if the Chief Examiner has formed an adverse view about any excuse proffered. The Act does not make it necessary that the witness should be given an opportunity to reconsider his position after being told that the excuse was unreasonable. None of this is to deny that there may be circumstances where procedural fairness may require the Chief Examiner to invite submissions as to the reasonableness of any excuse proffered and provide the witness with a further opportunity to explain his reasons for refusal to answer questions. Those submissions might lead the Chief Examiner to conclude that further questions are warranted or that any examination should be brought to an end.

59 Question 2 asks whether it is 'an essential precondition to an application to the Supreme Court' that such steps be taken. The Act does not impose any preconditions to an application to the Supreme Court beyond the requirement that it be 'alleged or appear' to the Chief Examiner that the examinee is guilty of contempt. Each of questions 2.1, 2.2 and 2.3 must be answered in the negative. Procedural fairness would require the Chief Examiner to inform the examinee upon a refusal or failure to answer a question, that the examinee may only refuse to answer the question if he or she has a reasonable excuse for doing so. Whether procedural fairness requires the Chief Examiner to enquire of the examinee whether he or she had a reasonable excuse and if one was proffered, whether the Chief Examiner should express any view about it would depend upon the circumstances of the case. They are not questions which arise in the present application.

At no time was he assured that what he said at the hearing would not be passed onto any prosecuting authorities and could not be used to compel him to become a witness in a prosecution against the alleged perpetrators of the organised crime offence. Without such clear reassurance being provided by the Chief Examiner, I am of the view that not only has the Chief Examiner failed to prove that the respondent did not have a reasonable excuse for his refusal to answer the questions put to him, I am positively of the view that he did, at that time, have a reasonable excuse to refuse to answer those questions.[53]

61 The assumptions made by King J in the above passage rested upon her view of the effect of the decision of this Court in Chief Examiner v Brown (a pseudonym).[54] The Chief Examiner contends that King J proceeded upon the mistaken basis that the decision in Brown made clear that the information obtained through the use of coercive powers could not be disclosed to the Office of Public Prosecutions save in the very limited circumstances where the Court so ordered. King J did approach these issues on the basis that an examinee's evidence could not result in that witness being a prosecution witness. King J concluded that in the absence of a 'clear reassurance' that an examinee's evidence would not be provided to prosecuting authorities,[55] the witness had a reasonable excuse for failing to answer questions.

62 The Chief Examiner points to the obligation which then existed under the Act that the Chief Examiner provide a copy of the video recording of an examination of a witness, on request, to the police officer who applied for the coercive powers order authorising the examination.[56] The evidence could then be shared with the Director of Public Prosecutions for a purpose connected with a prosecution under the information sharing provisions in the Act.[57] A prosecutor in receipt of evidence in that way could then invoke the procedure in ss 43 and 45 of the Act as were in force at that time to use that evidence in a prosecution, making the examinee a prosecution witness.[58]

63 At the time of QX, the procedure in ss 43 and 45 of the Act was the only method by which evidence that is subject to a non-publication direction could be used in a prosecution, and exceptions to, or rescissions of, non-publication directions were unlawful if made for the purpose of allowing that use by other means.[59]

64 Prior to the delivery of judgment in QX ss 43A and 43B of the Act were introduced. Section 43A conferred powers upon the Court to make restricted evidence available to the person charged or a legal practitioner representing the person charged and to the Director of Public Prosecutions, if after examining the restricted evidence and considering submissions which have been made, the Court is satisfied that the interests of justice so require. Section 43B makes corresponding provision in respect of persons who have not been charged. The amendments removed any possible doubt regarding the procedure by which an examinee could become a prosecution witness. In Ross v The Chief Commissioner of Police,[60] the Court of Appeal endorsed the analysis in Brown and applied that analysis to the amended legislation.[61]

65 By virtue of these provisions enabling restricted evidence to be disclosed, the Chief Examiner was not in a position to give guarantees that an examinee would not become a prosecution witness as a result of being obliged to provide evidence under either the current legislative regime or that which was in existence at the time of QX. The Chief Examiner rightly submits that he cannot be obliged to assure an examinee to the contrary as such an assurance would misstate the law and be quite misleading. It follows that the Chief Examiner's failure to give such an assurance does not justify the conclusion that the witness had a reasonable excuse for refusing or failing to answer a question.

66 Question 3 must be answered 'no' as to each of its parts.

67 Leave should be granted under s 17B(3)(a) of the Supreme Court Act and the questions referred to this Court should be answered as follows:

[1] To ensure that there is no possibility of identification of the respondents, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondents.

[2] [2015] VSC 784 ('QX').

[4] [2013] VSC 408 ('Debono').

[5] R v Clarkson [1981] VicRp 18; [1981] VR 165.

[6] Hinch v Attorney-General [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375, 388 [40] (French CJ, Kiefel, Bell, Gageler and Keane JJ), 395 [65] (Nettle J).

[7] Interpretation of Legislation Act 1984 s 35.

[8] DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381; (2009) 24 VR 415.

[9] They cite Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 254 (Brennan J); R v Adams [1935] HCA 62; (1935) 53 CLR 563, 567-8; Deeming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129, 145 (Mason, Deane and Dawson JJ); Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, 576 (Gibbs J).

[10] [1945] HCA 22; (1945) 70 CLR 635, 643-5.

[11] [1952] HCA 63; (1952) 86 CLR 136, 139-41.

[12] [1955] HCA 19; (1955) 91 CLR 512, 519-21.

[13] Debono [2013] VSC 408 [22].

[14] [1990] HCA 41; (1990) 170 CLR 249 ('Chugg').

[17] (1990) 19 NSWLR 449.

[22] Debono [2013] VSC 408 [29]-[30].

[23] QX [2015] VSC 784 [50].

[24] [1990] HCA 41; (1990) 170 CLR 249.

[25] [1955] HCA 19; (1955) 91 CLR 512.

[26] [1952] HCA 63; (1952) 86 CLR 136.

[27] Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635, 643-5, 642, 644.

[28] Ibid 643-5, 642; R v Sciretta [1977] VicRp 15; [1977] VR 139, 140.

[29] [1952] HCA 63; (1952) 86 CLR 136.

[31] [1977] VicRp 15; [1977] VR 139, 140.

[32] QX [2015] VSC 784 [53].

[34] (1993) 32 NSWLR 423 ('Ganin').

[35] QX [2015] VSC 784 [53].

[36] Ganin (1993) 32 NSWLR 423, 437 (emphasis in original).

[37] See ss 34A-34E. Section 34B makes ch 2 of the Criminal Code (Cth) applicable to that offence. Section 13.3(3) of the Criminal Code makes clear that a defendant bears only an evidential burden of establishing an exemption or excuse, upon satisfaction of which - by force of s 13.1(2) of the Criminal Code - the prosecution bears the legal burden.

[39] [1988] 2 SCR 3 ('Whyte').

[41] [2003] UKHL 28; [2003] 1 WLR 1736, 1750 [50].

[42] [2010] VSCA 50; (2010) 25 VR 436, 472 [130].

[43] [2003] UKHL 28; [2003] 1 WLR 1736, 1749 [48].

[45] [1988] 1 SCR 914 ('Holmes').

[47] See discussion in DAS v Victorian Human Rights & Equal Opportunity Commission [2009] VSC 381; (2009) 24 VR 415, 427-8 [50]-[52] (Warren CJ). It is not necessary to decide whether s 32(1) of the Charter is a statutory articulation of the common law 'principle of legality' as applied to the rights set out in the Charter: see Momcilovic v The Queen (2011) 245 CLR 5, 50 [51] (French CJ); Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, 215 [23] (Warren CJ, Nettle and Redlich JJA); Nigro v Secretary, Department of Justice (2013) 41 VR 359, 383 [85] (Redlich, Osborn and Priest JJA); Carolan v The Queen [2015] VSCA 167 [46] (Ashley, Redlich and Priest JJA). Tate JA has taken a different view: Victoria Police Toll Enforcement v Taha [2013] VSCA 37, [188]-[191]; Justice Pamela Tate, 'Statutory Interpretive Techniques under the Charter: Three Stages of the Charter - Has the Original Conception and Early Technique Survived the Twists of the High Court's Reasoning in Momcilovic?' (2014) 2 Judicial College of Victoria Online Journal 43, 66-7.

[48] Victoria, Parliamentary Debates, Legislative Council, 9 October 2008, 4169 (J M Madden, Minister for Planning) (emphasis added).

[49] Interpretation of Legislation Act 1983, s 35(b)(ii).

[50] Holmes [1988] 1 SCR 914, 935.

[51] QX [2015] VSC 784 [51].

[53] [2015] VSC 784 [87].

[54] (2013) 44 VR 741 ('Brown').

[55] QX [2015] VSC 784 [87].

[56] Section 43(4) of the Act; Brown [2013] VSCA 167, 770 [102].

[57] Section 67 of the Act; Brown [2013] VSCA 167, 770-71 [102]-[104].

[58] Brown [2013] VSCA 167, 768 [95], 771 [106].

[59] Brown [2013] VSCA 167, 768 [95], 771 [105]-[106].

[60] [2014] VSCA 254.