The Queen v Debono [2013] VSC 408

2 These reasons arise from a pre-trial application by the parties under s 199(1)(c) of the Criminal Procedure Act 2009 ('CP Act') for a ruling to clarify the above issues prior to the empanelment of a jury.

3 For the reasons that follow, I have concluded as follows:

(a) The elements of the offence are those set out at [16] below.

(b) The legal onus lies on the Accused to prove on the balance of probabilities that he had a reasonable excuse for refusing to take an oath or make an affirmation.

(c) A witness appearing at an examination by the Chief Examiner can be held to have a reasonable excuse for refusing or failing to take an oath or make an affirmation for the purposes of s 36(4) of the Act on the basis that he or she fears that he or she will be physically harmed if he or she takes an oath or makes an affirmation. However, in order for such a fear to qualify as a reasonable excuse, it must satisfy the requirements set out at [49] to [51] below.

(d) Subject to the qualifications set out at [62] below, the evidence upon which the Accused proposes to rely is incapable in law of establishing a reasonable excuse.**

**4 The Accused has made various applications to this Court in relation to the alleged offence under s 36(4) of the Act. These reasons should be read in conjunction with the Court's previous decisions on those applications.[2]

5 The Accused was served with a custody order dated 14 October 2008, made pursuant to s 18(2) of the Act, requiring him to attend before the Chief Examiner on 7 November 2008 to give evidence. The Chief Examiner issued a custody order rather than a witness summons because the Accused was serving a term of imprisonment. The custody order was issued under a coercive powers order made on 13 August 2008 by Cummins J and corrected by his Honour on 9 October 2008 ('CPO'). The CPO was made in respect of the organised crime offence described initially as 'Murder', and following the correction on 9 October 2008, as 'Murder of Wayne Keith Boyd on or about 9 November 2001'. The CPO was extended on 10 February 2009.

6 The Accused was also provided with a confidentiality notice under s 20(1) of the Act. The notice prohibited disclosure of the existence of the custody order, the subject matter of the organised crime offence in relation to which it was made and other matters connected to the custody order unless there was a reasonable excuse for doing so.

7 On 7 November 2008, the Accused attended before the Chief Examiner in one of the courtrooms in the County Court. In accordance with s 35(1) of the Act, the examination was conducted in private. The Chief Examiner made a direction under that section permitting only the Accused, his barrister, three police officers, counsel assisting the Chief Examiner and two prison officers to be present in the courtroom. The Chief Examiner reminded the police officers and his staff of the secrecy provisions in s 68 of the Act.

8 The Chief Examiner also gave a direction under s 43(1) of the Act prohibiting the publication or communication of any evidence given before the Chief Examiner; the contents of any document produced to the Chief Examiner; any information that might enable a person who has given evidence before the Chief Examiner to be identified; or the fact that any person has given or may be about to give evidence at an examination. That direction was made on the basis that its absence might prejudice the fair trial of another person, rather than that its absence might prejudice the safety of any person.

9 At the hearing on 7 November 2008, the Accused refused to take an oath or make an affirmation. On 11 November 2008, the Accused was charged under s 49(1) of the Act with the offence of contempt of the Chief Examiner. On 22 April 2009, Lasry J dismissed the charge for reasons which are not presently relevant.[3]

10 On 29 April 2009 the Accused was served with a second custody order requiring him to attend before the Chief Examiner on 13 May 2009 to give evidence. The Accused was also provided with a confidentiality notice under s 20(1) of the Act. At the examination on 13 May 2009, the Chief Examiner made a direction under s 35(1) permitting certain persons to be present at the examination and he reminded the police officers and his staff who were present of the secrecy provisions in s 68 of the Act. The Accused sought, and was granted, an adjournment until 21 May 2009 in order to obtain legal representation.

11 The Accused was served with a third custody order dated 13 May 2009 requiring him to attend before the Chief Examiner on 21 May 2009 to give evidence ('Custody Order'). The Accused was also provided with a confidentiality notice under s 20(1) of the Act. On 21 May 2009, the Accused attended before the Chief Examiner. The Chief Examiner made directions under ss 35(1) and 43(1) of the Act in similar terms to those he made on 7 November 2008 and he also reminded the police officers and his staff who were present of the secrecy provisions in s 68 of the Act. The Accused refused to take an oath or make an affirmation. On 17 July 2009, the Accused was charged under s 36(4) of the Act with the offence of refusing to take an oath or make an affirmation.

12 On 2 September 2011, the Accused commenced a proceeding seeking revocation of the CPO and on 9 February 2012, he commenced a proceeding seeking judicial review of the CPO. On 8 May 2012, both proceedings were dismissed.[4]

13 In the criminal proceeding against him, the Accused sought to collaterally challenge the validity of the Act, the CPO and the Custody Order by way of a pre-trial application under s 199(1)(c) of the CP Act. On 21 August 2012, I decided that the Act was not invalid.[5] On 17 October 2012, I decided to uphold a claim for public interest immunity in respect of certain documents that the Chief Commissioner of Police was required to produce to the Court pursuant to a subpoena that had been served by the Accused in support of his collateral challenge to the validity of the CPO and the Custody Order.[6] On 1 February 2013, I dismissed the Accused's collateral challenge and his application to quash the charge.[7]**

Elements of the offence under s 36(4) of the Act

Taking of evidence

...

(2) The Chief Examiner may, at an examination, take evidence on oath or affirmation and for that purpose -

(a) the Chief Examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in the prescribed form; and

(b) the Chief Examiner may administer an oath or affirmation to a person so appearing at the examination.

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

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

**15 Although the 'statement of offence' in the indictment describes the offence as '[r]efusal to take an oath or make an affirmation contrary to s 36(3) of the [Act]', it was common ground that the provision of the Act that creates the offence is s 36(4).

16 Leaving aside the phrase 'without reasonable excuse' in s 36(4) of the Act, it was common ground that the elements of the offence in the context of the present case are:

(a) the Accused appeared as a witness to give evidence at an examination conducted by the Chief Examiner under the Act;

(b) the Accused appeared pursuant to a valid custody order issued by the Chief Examiner under a valid coercive powers order;

(c) at the examination, the Chief Examiner required the Accused to take an oath or to make an affirmation in the prescribed form; and

(d) the Accused refused or failed to comply with the requirement.

17 The parties have agreed that requirements (a), (c) and (d) above are satisfied. By virtue of my previous rulings, requirement (b) is satisfied. The only matter that remains in dispute is whether the Accused's refusal to comply with the requirement was 'without reasonable excuse'.

18 Mr Carter, who appeared for the Accused, submitted that the absence of a reasonable excuse was an element of the offence under s 36(4) which the Crown must prove. For the reasons discussed below in the context of the onus of proof, I reject that submission. The presence or absence of a reasonable excuse determines not whether the elements of the offence are satisfied, but whether an exception is made out to prevent the criminal liability that would otherwise arise from proof of the matters set out at [16] above.**

**19 Mr Carter submitted that, under s 36(4) of the Act, the Accused only had an evidential burden to point to evidence that raised the question of a reasonable excuse and it was then a matter for the Crown to prove beyond reasonable doubt the absence of that reasonable excuse. He contended that, if Parliament had intended to impose a legal onus on the Accused, it could have expressly stated this.

20 Mr Livermore, who appeared for the Crown, submitted that the Accused had a legal onus to prove the existence of a reasonable excuse on the balance of probabilities. He contended that s 36(4) of the Act is indistinguishable from s 375(9) of the Companies (New South Wales) Code ('Companies Code'), which was held in Ganke v Corporate Affairs Commission[8] to impose a legal onus of proof on an accused.

21 The question of whether an exculpatory statutory provision imposes the onus on an accused to prove the facts required to come within the provision or on the prosecution to disprove the existence of such facts, will depend on the legislative intention as determined by the language of the provision, its context and purpose. The courts have developed criteria to assist in the process of statutory interpretation. Those criteria include whether the provision is a proviso rather than an exception, the form and structure of the provision and whether the facts in question would ordinarily be exclusively in the possession of an accused.

22 Generally, if an exculpatory provision is part of the definition of the grounds of liability, it will be a proviso and the onus will be on the prosecution to prove that the proviso does not apply. On the other hand, if an exculpatory provision is separate from the definition of the grounds of liability, and sets out a basis for negating a liability that would otherwise arise, the onus of proof will usually be on an accused.[9]

23 In relation to the form and structure of the exculpatory provision, if it exists in a single proposition with the definition of the grounds of liability, it is likely to be a proviso, in which case, the onus of proof will usually be on the prosecution. On the other hand, if an exculpatory provision is distinct from the provision that defines the grounds of the liability, it is likely to be an exception, in which case, the onus of proof will usually be on an accused.[10] However, while the form and structure of the exculpatory provision is important, ultimately the question is to be determined by the substance of the provision rather than its form and structure.[11]

24 Where the subject matter of the exculpatory provision comprises facts that are ordinarily exclusively in the possession of an accused, this may indicate that it is an exception and that it is intended that the onus be on an accused to prove those facts.[12]

25 Section 141(2) of the Evidence Act 2008 provides that the standard of proof for an accused in a criminal trial is the balance of probabilities.

26 In Ganke, the New South Wales Court of Criminal Appeal considered the onus of proof in the context of s 375(9) of the Companies Code. That section provided that: 'A person who, without reasonable excuse, fails to comply with a provision of this section ... is guilty of an offence.' The other provisions of s 375 imposed various obligations on the directors and the secretary of a company, including an obligation to provide a report in the prescribed form to the liquidator of the company within a particular period.

27 Hunt J, with whom Enderby and Sharpe JJ agreed, referred to the 'golden thread' principle that it is the duty of the prosecution to prove the guilt of an accused. After discussing particular examples of defences that the Crown must disprove if there is evidence before the court which gives rise to those defences, his Honour stated that the golden thread principle does not assist in relation to statutory exceptions. According to his Honour, in each case, it is a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (and so to be proved by the Crown), or whether it is intended to be a ground by which criminal liability may be avoided (and so to be proved by an accused).[13] His Honour held that s 375(9) of the Companies Code imposed a legal onus on an accused to prove the existence of a reasonable excuse for the following reasons:**

In the present case, subs (9) indicates fairly clearly ... that the offence is the failure to comply with the obligations imposed by the earlier subsections, but not if it be shown that there was a reasonable excuse for that failure. It is the existence of the reasonable excuse which prevents the failure from becoming an offence, and that excuse must necessarily be comprised of facts which are additional to those which constitute the failure to comply. Added to that particular indicium is the undoubted circumstance that those additional facts will in almost every case (if not indeed in every case) be solely within the knowledge of the director or the officer of the company who is charged.

The appellant has drawn attention to the different legislative style involved in other provisions in the Code such as s 316(11), which specifically provide that a particular matter is a defence to a prosecution. That is certainly a relevant consideration, but in this particular case it does not ... outweigh the considerations to which I have already referred. All of the cases say that what must be construed is the intention of the legislature; the court must say what the legislature intended to be the prima facie ingredients of the offence, and the solution of that question depends upon the ordinary rules of construction.

I am satisfied, therefore, that the onus of establishing the existence of the reasonable excuse in subs (9) was intended by the legislature to be placed upon the person charged. ... I should add that that is an ultimate legal onus which the charged person bears; it is not an evidential onus ... .[14]

**28 I agree with Mr Livermore's submission that s 36(4) of the Act is relevantly indistinguishable from s 375(9) of the Companies Code. The general principles set out at [21] to [25] above, as applied in Ganke, strongly indicate that s 36(4) constitutes an exception to the elements of the offence set out in s 36(3) of the Act and that the Accused carries the legal onus of establishing on the balance of probabilities that he had a reasonable excuse for refusing to take an oath or make an affirmation.

29 The phrase 'without reasonable excuse' does not form part of the definition of the grounds of liability under s 36(3) of the Act but introduces a new matter, the existence of which provides an exception to the criminal liability that would otherwise arise. The form and structure of sub-ss 36(3) and (4) support this conclusion, as the definition of the grounds of liability is complete under s 36(3) without the need to consider the exculpatory ground in s 36(4). Finally, the existence of facts that might constitute a reasonable excuse would ordinarily lie within the exclusive knowledge of an accused.

30 For the above reasons, the legal onus lies on the Accused to prove on the balance of probabilities that he had a reasonable excuse for refusing to take an oath or make an affirmation.**

Meaning and scope of 'without reasonable excuse'

**31 In Taikato v The Queen,[15] the High Court decided that what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception.[16] Thus, even though the phrase has been used in many statutes and is the subject of many reported decisions, these decisions provide no guidance.[17] The Court should adopt an interpretation of the defence of 'reasonable excuse' which is designed to avoid the purposes of the legislation being defeated.[18]

32 The decision in Taikato concerned s 545E(2) of the Crimes Act 1900 (NSW) which provided a 'reasonable excuse' defence to the offence under s 545E(1) of possessing in a public place anything capable of discharging any irritant matter. The High Court was required to interpret the meaning and scope of the defence in the context of a woman, Mrs Taikato, who was found by police at 12.15pm in a Sydney suburban street carrying a pressurised canister of formaldehyde in her handbag. She relied on the defence of reasonable excuse on the basis that, following a home invasion a few years earlier, she carried the canister in her handbag so that she could defend herself if someone attacked her.

33 The majority in Taikato (Brennan CJ, Toohey, McHugh and Gummow JJ) interpreted the defence of 'reasonable excuse' in the light of the purpose of s 545E to protect the public from the use of dangerous weapons. Their Honours stated:**

... given the purpose of [s 545E] and the requirement of reasonableness in sub-s (2), a plea of reasonable excuse could not succeed by relying on a mere belief that the person needed the prohibited object for self-defence. Whatever else was needed to make a plea of self-defence a 'reasonable excuse' for possession of the dangerous item, a well-founded fear of attack in the public place in question would have to be a minimum requirement. Otherwise, the purpose of the section would be too easily defeated.

Upon the facts found by Judge Rummery, no ground exists for concluding that Mrs Taikato had a reasonable excuse for the possession of the canister of formaldehyde. The canister was found in her possession at about 12.15pm in a public street in a suburb of Sydney. There is nothing in the findings of the learned judge that supports a conclusion that she was likely to be attacked or had a well-founded fear of attack while walking in the street where she was found in possession of the canister.[19]

**34 In the course of his dissenting judgment, Dawson J stated that a reasonable excuse is 'no more or less than an excuse which would be accepted by a reasonable person.'[20]

35 In Ganin v New South Wales Crime Commission,[21] the New South Wales Court of Appeal considered s 18(2) of the New South Wales Crime Commission Act 1985 (NSW) ('NSW Act'). The NSW Act was similar to the legislation under consideration in the present case and contained an unqualified 'without reasonable excuse' provision. The scope of the reasonable excuse defence arose for determination in the context of refusals to answer questions by persons appearing as witnesses at hearings before the Crime Commission. Kirby P (with whom Meagher JA and O'Keefe AJA agreed) stated that the words 'without reasonable excuse' are very wide and should be given their ordinary construction rather than being read down.[22] All that is required is that the resisting witness should have a 'reasonable excuse'. It is undesirable that 'different formulae should be substituted for that which parliament has enacted.'[23]

36 Kirby P stated that the issue is not whether the objecting witness expressed a reasonable excuse at the time of refusing or failing to answer a question, but whether the witness had such an excuse at that time.[24] The reasonable excuse must be one relevant to the refusal or failure to answer a question.[25] His Honour also stated that the question is not whether the excuse stated or subjectively conceived was reasonable. Rather, it is whether, at the relevant time of refusal to perform an act, there was, or was not, a reasonable excuse.[26] His Honour stated:**

In accordance with orthodox canons of construction these words would not be given a narrow meaning. They appear in a provision which imposes a criminal sanction for its breach. They appear in an enactment which, as has been said, amounts to a drastic derogation from the ordinary liberties of citizens. They appear in a subsection which, giving ample meaning to the words 'without reasonable excuse', will be defensive of fundamental rights recognised both by the common law and by international law.[27]

**37 The test of reasonable excuse applied in Ganin was whether the particular risk 'is so remote and negligible that it can be ignored so that it was not capable of being regarded as being a "reasonable excuse" within s 18(2) ...'.[28] In judging whether a reasonable excuse exists, it is appropriate to disregard imaginary and insubstantial fears or those which, in the practical world, are so remote as to be safely ignored or overruled as unreasonable.[29]

38 After Ganin was decided, s 18 of the NSW Act was amended, and s 18B was added. The combined effect of these changes was to limit the circumstances in which a witness could refuse to answer a question. Thus the exculpatory provision under consideration in Z v New South Wales Crime Commission [No 2][30] was narrower than that considered in Ganin. In Z, Johnson J stated that it was necessary to read Ganin in the light of the statutory changes.[31] His Honour also stated that it was appropriate to consider the statutory context in which the reasonable excuse provision operated.[32] His Honour emphasised that the Crime Commission asked questions 'in the context of a private hearing in aid of an investigation where statutory secrecy obligations arise with respect to any evidence which Z gives.'[33]

39 Z involved a legal practitioner who refused to answer a question about a client's identity because he feared for his safety and that of his family if he were required to answer the question. The legal practitioner gave evidence about the basis of his fear of reprisal from the client. There was no evidence that the client had made any threat.

40 Johnson J accepted that a fear of reprisal cannot amount to a 'reasonable excuse' for refusing to answer a question in a private hearing protected by statutory secrecy provisions unless, at the very least, the fear could ground a refusal to answer a question in public proceedings.[34] His Honour also accepted that a mere fear of adverse consequences provides no justification for a witness refusing to answer questions at a trial.[35]

41 Johnson J found that the concept of 'reasonable excuse' requires a clear objective component and that the fear asserted by Z would not have given rise to a defence of duress if a charge of contempt of court was brought against him for refusing to answer questions in an ordinary court.[36] His Honour stated that, in the context of a private hearing, with statutory secrecy provisions protecting the evidence given by a witness, it would be a rare case in which a fear of reprisal could constitute a 'reasonable excuse' for refusing to answer a question.[37]

42 Johnson J accepted that Z had not factually made out that his fear of reprisal was reasonable in the circumstances. His Honour said that the degree of risk of harmful consequences to Z was entirely incapable of measurement and that the evidence did not lift Z's fears above the level of subjective concern only. Accordingly, the evidence of Z's fears did not constitute a reasonable excuse for his refusal to answer the Crime Commissioner's questions about the client's identity. His Honour held that the fact that the questions were asked at a private hearing of the Commission with statutory protections fortified his conclusion.[38]

43 In SD v New South Wales Crime Commission,[39] the New South Wales Court of Appeal further developed the approach of adopting a narrow interpretation of the phrase, 'reasonable excuse' in s 18 of the NSW Act, reinforcing the point made in Z that the analysis in Ganin is of limited assistance since the amendments that were made to the NSW Act.[40]**

**44 Mr Carter submitted that a reasonable excuse for the purposes of s 36(4) of the Act is any excuse which would be accepted by a reasonable person and that an accused's fear of suffering personal harm at the hands of others can constitute a reasonable excuse. Mr Carter relied on Taikato[41] and Ganin.[42]

45 Mr Livermore submitted that a reasonable excuse under s 36(4) of the Act must relate to practical matters connected with complying with a requirement to take an oath or make an affirmation - such as the absence of an appropriate religious text - and cannot extend to a fear of retribution. Mr Livermore based his submission on the absence of a defence of reasonable excuse in s 37(2)(a) of the Act, which deals with refusing or failing to answer a question. According to Mr Livermore, the absence of such a defence in relation to a refusal to answer a question for any reason, including fear of retribution, evinced a legislative intention to confine the reasonable excuses that may be invoked in relation to a refusal to take an oath or make an affirmation to a narrow range of matters peculiarly referable to those activities.

46 Mr Livermore's alternative submission was that, if the phrase 'reasonable excuse' in s 36(4) of the Act is not confined to matters peculiarly referable to the taking of an oath or the making of an affirmation, it would only rarely apply to a fear of retribution, otherwise the purpose of the Act would be thwarted. Mr Livermore relied on Z[43] and SD.[44]**

Analysis of 'without reasonable excuse' in s 36(4) of the Act

**47 I do not accept Mr Livermore's submission that a reasonable excuse under s 36(4) of the Act is confined to practical compliance matters such as the absence of an appropriate religious text. There is nothing in the language of s 36(4) or the context or purpose of the section or of the Act as a whole which warrants, let alone requires, such a narrow interpretation of the phrase 'without reasonable excuse'.[45] In particular, the absence of a defence of reasonable excuse in s 37(2)(a) cannot justify limiting the scope of the defence in s 36(4). This is because s 49(1)(b), which deals with contempt of the Chief Examiner, provides a reasonable excuse defence for a refusal or failure to answer any questions at an examination before the Chief Examiner. Contrary to Mr Livermore's submission, it is not possible for me to conclude that the anomaly has arisen due to a drafting error in s 49(1)(b) rather than in s 36(4).

48 In my opinion, a witness appearing at an examination by the Chief Examiner can be held to have a reasonable excuse for refusing or failing to take an oath or make an affirmation for the purposes of s 36(4) of the Act on the basis that he or she fears that he or she will be physically harmed if he or she takes an oath or makes an affirmation. However, in the light of:

(a) the purpose of the Act to confer coercive powers for the investigation of organised crime offences;[46]

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

(c) the confidentiality and secrecy provisions in ss 20(1), 35(1), 43(1) and 68 of the Act to which I have already referred,

in order for such a fear to qualify as a reasonable excuse, it must satisfy the requirements set out at [49] to [51] below.

49 First, there must be an objective basis for the fear of physical harm.[47] The fear cannot be a mere subjective fear.[48]

50 Secondly, the objective basis for the fear of physical harm must be reasonable in the circumstances of the particular case.[49] The fear could be reasonable if it is based on a communication or conduct by another person which is objectively capable of conveying to the witness a threat of physical harm to him or her. Such a threat or other circumstances will not suffice if, objectively, in the practical world, the risk of physical harm is remote, negligible, imaginary or insubstantial.[50]

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

Is the proposed evidence capable of establishing a reasonable excuse?

52 In his written and oral submissions, Mr Carter identified in a non-exhaustive manner the evidence upon which the Accused proposed to rely to establish the defence of reasonable excuse under s 36(4) of the Act. The reasonable excuse was said to be a fear by the Accused that he would be killed or seriously injured by a fellow prisoner if he swore an oath and/or answered any questions of the Chief Examiner because he believed that if he did so, there was a real risk of this fact being disseminated in the prison population.

53 The evidence that Mr Carter identified in support of the Accused's alleged fear of physical harm was as follows:

(a) The Accused was a prisoner when he was served with the three custody orders and other documents which required him to attend before the Chief Examiner.

(b) As a prisoner, the Accused was living in an environment in which it is notorious that prisoners who speak with or cooperate with police are placed at risk of harm by other prisoners.

(c) The manner in which the Accused was served with the three custody orders and other documents and the manner in which they were disseminated to prison officers were such as to inevitably disclose to prisoners and others in the prison system the fact that the Accused was wanted for questioning by the police. The confidentiality provided for in the Act in order to ensure the safety of the Accused was breached. The above circumstances inevitably exposed the Accused to a risk of danger. Detective Guy will be cross-examined on the circumstances in which the three custody orders were served on the Accused and his discussions with the Accused in public meeting areas within the relevant prison.

(d) Following the service of the first custody order on 15 October 2008, the Governor of Loddon Prison attended at the communal area of the Accused's unit and, in the presence of approximately 20 prisoners and staff, referred to the fact that the Accused had been served with some coercive papers and that he should not have them with him for his own safety.

(e) On 7 November 2008, the Accused travelled from Loddon Prison to the County Court in a special escort. On 13 May 2009, the Accused was transported from Port Phillip Prison to the County Court in a van that was different from the prison van in which he would normally be transported, he was alone in the van and had shackles on both hands and feet. The manner of the Accused's transportation on both occasions drew attention to the likelihood that he was being taken for questioning by police examination.

(f) During the examination by the Chief Examiner on 7 November 2008, the Chief Examiner asked the Accused whether he had any concerns about his safety or the safety of anyone else because of his attendance at the examination, and the Accused answered in the affirmative. The Chief Examiner asked who the concerns related to, and the Accused responded:**

The whole gaol population, 'cause I just got dragged out of me cell. I've come on a special escort and now I'm gunna be taken back and get put - and thrown back in. What am I - and then, worst case scenario, like these things can happen ...

**54 I will refer to matters set out at [53] above as the 'Proposed Evidence'.

55 Mr Carter submitted that the combined effect of the Proposed Evidence was to induce in the Accused a reasonable fear that, if he cooperated with the authorities, this fact could be disseminated within the prison system, thus increasing his exposure to danger. Mr Carter contended that the confidentiality of orders provided for under s 20 of the Act was breached by a combination of the manner of service, dissemination of confidential information and the Governor's comments in front of other prisoners on 15 October 2008. According to Mr Carter, Z was distinguishable because the confidentiality safeguards under the NSW Act had not been breached in that case. Finally, Mr Carter submitted that, as the Proposed Evidence raised the defence of reasonable excuse, the sufficiency of that evidence to make out the defence was a jury question.

56 Mr Livermore submitted that it is for the trial judge to determine if there is sufficient evidence to leave the defence of reasonable excuse to the jury. He contended that, as a matter of law, the Proposed Evidence is not sufficient to permit the defence to be left to the jury. According to Mr Livermore, at its highest, the Proposed Evidence is only capable of indicating that some prisoners may know that the Accused has been transported from prison for the purpose of being questioned by law enforcement agencies. The Proposed Evidence gives no indication, so it was said, whether the Accused has cooperated with those authorities by taking an oath. Nor does the Proposed Evidence indicate, according to Mr Livermore, that what occurred at the examination before the Chief Examiner would not remain confidential in accordance with the provisions of the Act.

57 In my opinion, if the evidence at trial on the question of whether the Accused had a reasonable excuse for refusing to take an oath or make an affirmation were confined to the Proposed Evidence, it would be incapable in law of establishing a reasonable excuse. This is because, taken at its highest, the Proposed Evidence could not satisfy the requirements set out at [49] to [51] above.

58 In relation to the requirement set out at [49] above, there is no objective basis for the Accused's alleged fear of death or serious injury.

59 Even if the Proposed Evidence could satisfy the jury that there was an objective basis for the Accused's alleged fear, the Proposed Evidence is incapable of satisfying the jury that the fear was reasonable in the circumstances of the case. This is because there is nothing in those circumstances that could cause a reasonable person to objectively fear physical harm by or at the behest of any particular person or identifiable group of persons. There is nothing in the Proposed Evidence to indicate that anyone threatened the Accused or even expressed any disapproval in connection with his three appearances before the Chief Examiner. A generalised subjective concern about being at risk from the prison population as a whole would be no more than a remote, negligible, imaginary or insubstantial risk.

60 In relation to the requirement set out at [51] above, the Proposed Evidence is incapable of establishing any nexus between the alleged fear and the Accused's refusal to comply with Chief Examiner's requirement that the Accused take an oath or make an affirmation. At best, the Proposed Evidence indicates a relationship between the fear and events at the two prisons and the transportation to the County Court rather than the events at the examination before the Chief Examiner. Even if the jury were to accept that, contrary to the confidentiality arrangements in the Act, it became known to other prisoners that on three occasions the Accused was brought before the Chief Examiner in the County Court for the purpose of taking an oath and giving evidence about an organised crime offence, there was no evidence upon which the jury could conclude that what transpired at the examination ceased to be confidential at any time. In other words, the jury could not be satisfied on the Proposed Evidence that there was any objective basis for the Accused to fear that if he took an oath or made an affirmation, other prisoners would find out that he did so and that he would be harmed on the basis of that conduct.

61 Although I have not taken into account the matters set out in this paragraph in reaching the conclusion at [57] above, I note them here because they are likely to be the subject of evidence at the trial. At the examination on 7 November 2008, after the exchange to which reference was made at [53(f)] above, the Accused clarified that his concern was derived from his belief that, should he be required to spend additional time in prison by reason of a conviction for refusing to say anything to the Chief Examiner, he would not be able to explain this to his family. The Accused continued in response to the Chief Examiner:**

What if ... which if gunna happen, I refuse to say anything and I get more time, what am I supposed to tell my family? 'I can't tell you why I got more time, honey. I just did.'

The Chief Examiner then stated that if the Accused were to be charged and sentenced with the offence of failing to answer, it would almost certainly be publicised. When asked again whether he had any concerns as to his safety, the Accused replied 'No'. The Accused also said that he did not have any concerns about the safety of his family or anyone else he knew. At the hearing on 21 May 2009, when the Chief Examiner asked the Accused whether he was concerned about his own personal safety or the safety of anyone associated with him or any other person, he replied 'No'.

**62 The views I have expressed at [57] to [60] above are necessarily preliminary and tentative, based as they are on vaguely formulated descriptions of what was said to be the non-exhaustive evidence upon which the Accused proposes to rely. Nevertheless, those views will provide some guidance to the parties on the rulings that I am likely to make at trial if the evidence in support of the defence of reasonable excuse is confined to the Proposed Evidence.

63 I will convene a further directions hearing to hear submissions from the parties on the future conduct of the proceeding which has been fixed for trial on 5 August 2013.**

[1] Section 36 of the Act is set out below at [14].

[2] See R v AX [2009] VSC 153 (22 April 2009); BCD v Chief Examiner [2012] VSC 193 (11 May 2012) ('BCD'); R v Debono [2012] VSC 350 (21 August 2012); R v Debono [2012] VSC 476 (17 October 2012); R v Debono (Unreported, Supreme Court of Victoria, Kyrou J, 1 February 2013).

[3] See R v AX [2009] VSC 153 (22 April 2009).

[4] See BCD [2012] VSC 193 (11 May 2012).

[5] R v Debono [2012] VSC 350 (21 August 2012).

[6] R v Debono [2012] VSC 476 (17 October 2012).

[7] R v Debono (Unreported, Supreme Court of Victoria, Kyrou J, 1 February 2013).

[8] (1990) 19 NSWLR 449 ('Ganke').

[9] Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635, 643-5 ('Jacobsen'); Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136, 139-41 ('Dowling'); Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, 519-21.

[10] Jacobsen [1945] HCA 22; (1945) 70 CLR 635, 643-5; Dowling [1952] HCA 63; (1952) 86 CLR 136, 139-41; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 257-61 ('Chugg').

[11] Dowling [1952] HCA 63; (1952) 86 CLR 136, 140; Chugg [1990] HCA 41; (1990) 170 CLR 249, 258.

[12] R v Douglas [1985] VicRp 70; [1985] VR 721, 724; Chugg [1990] HCA 41; (1990) 170 CLR 249, 259-61.

[13] Ganke (1990) 19 NSWLR 449, 455.

[14] Ganke (1990) 19 NSWLR 449, 456 (citations omitted).

[15] [1996] HCA 28; (1996) 186 CLR 454 ('Taikato').

[16] Taikato [1996] HCA 28; (1996) 186 CLR 454, 464.

[17] Taikato [1996] HCA 28; (1996) 186 CLR 454, 464.

[18] Taikato [1996] HCA 28; (1996) 186 CLR 454, 466.

[19] Taikato [1996] HCA 28; (1996) 186 CLR 454, 466.

[20] Taikato [1996] HCA 28; (1996) 186 CLR 454, 470.

[21] (1993) 32 NSWLR 423 ('Ganin').

[22] Ganin (1993) 32 NSWLR 423, 437.

[23] Ganin (1993) 32 NSWLR 423, 439.

[24] Ganin (1993) 32 NSWLR 423, 437.

[25] Ganin (1993) 32 NSWLR 423, 436.

[26] Ganin (1993) 32 NSWLR 423, 436.

[27] Ganin (1993) 32 NSWLR 423, 436.

[28] Ganin (1993) 32 NSWLR 423, 438.

[29] Ganin (1993) 32 NSWLR 423, 439.

[30] [2005] NSWSC 1388 (22 March 2005) ('Z').

[31] Z [2005] NSWSC 1388 (22 March 2005) [44].

[32] Z [2005] NSWSC 1388 (22 March 2005) [45].

[33] Z [2005] NSWSC 1388 (22 March 2005) [59].

[34] Z [2005] NSWSC 1388 (22 March 2005) [72].

[35] Z [2005] NSWSC 1388 (22 March 2005) [74].

[36] Z [2005] NSWSC 1388 (22 March 2005) [75].

[37] Z [2005] NSWSC 1388 (22 March 2005) [77].

[38] Z [2005] NSWSC 1388 (22 March 2005) [78].

[39] [2013] NSWCA 48 (8 March 2013) ('SD').

[40] SD [2013] NSWCA 48 (8 March 2013) [17].

[41] [1996] HCA 28; (1996) 186 CLR 454.

[42] (1993) 32 NSWLR 423.

[43] [2005] NSWSC 1388 (22 March 2005).

[44] [2013] NSWCA 48 (8 March 2013).

[45] Ganin (1993) 32 NSWLR 423, 437, 439. Cf Bank of Valletta Plc v National Crime Authority [1999] FCA 791; (1999) 164 ALR 45, 55 [42], 56 [47]. The phrase 'without reasonable excuse' also appears in ss 20(1)(b), 20(5), 37(1), 37(2)(b), 49(1)(a) and (b), 60(2) and 64(1) of the Act without being defined or confined in any way. Section 20(6) sets out what constitutes a reasonable excuse in the context of the non-disclosure obligations relating to a witness summons.

[47] Z [2005] NSWSC 1388 (22 March 2005) [75].

[48] Taikato [1996] HCA 28; (1996) 186 CLR 454, 466; Z [2005] NSWSC 1388 (22 March 2005) [78].

[49] Taikato [1996] HCA 28; (1996) 186 CLR 454, 466.

[50] Ganin (1993) 32 NSWLR 423, 438-9.

[51] Ganin (1993) 32 NSWLR 423, 436.