(c) Objective reasonableness of Witness's fears
126 A second difficulty arises from paragraph [24]:
"Taking into account that for which the applicant is known to be in his present custody, his past reputation to which I have referred, his voluntary making of a statement to the police … , his discussion of the very subject matter of his evidence with other inmates, and in particular one who has given testimony before this Court, and the absence of any evidence of actual threats, I cannot be satisfied as to the grounds of such fears, which the applicant says he holds, being reasonable."
127 In terms this paragraph is dealing with whether the grounds for the Witness's fears are objectively reasonable. To some extent, however, the grounds appear to go to the sincerity of the fears expressed, and the plaintiff submitted to the Court of Appeal that they, and the cross-examination on which they were based, did this. The plaintiff submitted:
"Mr Stitt … made a point that there was no direct cross-examination by [the] cross-examiner on the fact of holding the fear. I would submit that was put in issue by the cross-examiner attacking the basis of the fear and it wasn't doing anything more than attacking the basis of the fear and leaving it as one of the cases put [it] with upraised eyebrows …. In other words, it wasn't necessary for the cross-examiner to actually put a final question: I put it to you that you do not actually hold any fear. He didn't do that. He undercut the whole basis for the suggestion that there was a reasonable fear."
Thus "that for which the applicant is known to be in his present custody" is a conviction for an offence of procuring the commission of an act of gross indecency with another man. The significance of this was not spelt out in Levine J's Judgment, but it was made the basis of one submission put by the plaintiff to the Court of Appeal, to the effect that the Witness is already likely to be the target of rape, so that there is only "a slightly increased chance of" it after giving evidence.
128 The "past reputation" to which paragraph [24] makes reference is the reputation referred to in paragraph [9] - "a reputation for giving evidence against fellow inmates." The plaintiff submitted in effect that a person of this reputation cannot sincerely fear reprisals if in future he acts as he is reputed to have acted in the past.
129 The fact of the Witness's "voluntary making of a statement to the police in this State" is a reference to the Statement of 1 May 1998 referred to above. The plaintiff submitted that the making of that statement undercuts or qualifies the sincerity of the fears expressed by the Witness.
130 The reference to the discussion by the Witness of the subject matter of his evidence with other inmates similarly appears to go to the sincerity of the Witness's fears, in the plaintiff's submission.
131 It is impossible to reconcile this approach of the plaintiff with Levine J's finding that the fears were held. If the plaintiff's approach were valid, there would be a fundamental contradiction at the heart of the reasoning in Levine J's Judgment. On a fair reading, there is not.
132 If the factors in paragraph [24] are considered as factors going to the reasonableness objectively of the Witness's fears, which is how Levine J's Judgment treats them, the defendant submitted that they were "matters which were totally extraneous and unrelated to the circumstances which give rise to the [Witness's] fear". The defendant also submitted that Levine J in paragraph [24] "is pronouncing upon and finding … not reasonable, matters which simply do not constitute the basis that the [Witness] put forward as being the foundation of his concern." These submissions are substantially correct. Paragraph [24] does not distinguish between circumstances surrounding the Witness in gaols other than his present place of incarceration at earlier times, and what is known in the present place of incarceration and the present time. Thus the offence of which the Witness was convicted and for which he is presently being punished, while known to the authorities, is "not readily known" to his fellow prisoners. The "past reputation" of giving evidence against fellow prisoners caused him to seek protective custody while he was in a gaol a long way from his present place of incarceration and in another State, but there is no evidence it caused him to seek protective custody in his current place of incarceration. There is no evidence that the voluntary making of the statement to the police in New South Wales by the Witness is known in the present place of incarceration. The "discussion of the very subject matter" of the Witness's evidence with other inmates was limited to a discussion with two persons. There is no evidence of its terms, date or location. In particular, there is no evidence that that discussion took place in the gaol where the Witness is presently incarcerated.
133 Some attention was paid during the argument to one particular question. The plaintiff contended that the Witness already had a reputation at his present gaol for giving evidence against inmates, and that his fellow prisoners believed that he had come to New South Wales to give evidence against another inmate. The latter part of the plaintiff's submission rests on a misconstruction of the evidence. The evidence is that the Witness told "a select few" inmates that he was coming to court to give evidence in regard to an incident late in 1998 when there was "an assault on a prisoner by a prison officer" in New South Wales. A question was asked about the prisoners believing the Witness had come "to give evidence against another inmate in favour of the Department of Corrective Services". Since this question was prefaced by the word "Indeed", and inquired as to the belief of third parties, it was arguably objectionable as inaccurately summarising the earlier evidence about an assault on a prisoner by a prison officer and inviting speculation, and not surprisingly Mr Stitt objected. Simultaneously, apparently, the Witness gave an answer recorded as "Yes -" just before Mr Stitt's objection. Levine J correctly said: "This was to give evidence. I don't know for whom or against." The cross-examination then moved to a new subject and the matter was not clarified. This material does not support the plaintiff's submission.
134 A significant difference between the Witness and the plaintiff emerged in argument before the Court of Appeal in relation to the cross-examination of the witness before Levine J. For example, the Witness submitted in chief:
"The first opponent did not, however, put to the claimant that the claimant's fears were:
(a) unreasonable,
(b) groundless, or
(c) lacked credible foundation.
In the circumstances it was not open to his Honour to find that:
(a) the claimant only held a 'generalised fear'; and
(b) the claimant did not have reasonable grounds for that fear.
The claimant, on the evidence, did not hold a 'generalised fear', he held a specific and grave fear."
135 The plaintiff at the close of the argument submitted that to say "there was no challenge to the ground for the applicant's fear" was "as false a statement as could be made because the whole of [the] cross-examination was directed to that issue."
136 The merits of this controversy lie more with the Witness than with the plaintiff. It is true that the plaintiff put to the Witness a number of circumstances and factors which arguably went to the objective reasonableness of the Witness's fears. But the questions often did not establish a link with the Witness's current situation. There was certainly no express challenge to the actuality of the Witness's fears. And there was no challenge put to the Witness in relation to reasonableness in a manner which would have entitled the Witness to answer for himself a generalised contention that his fears were not reasonable. While in many types of litigation that might not be necessary, the present circumstances are different.
137 A further argument put by the plaintiff was that there was no risk of the Witness being attacked for giving evidence against the plaintiff when his fellow inmates knew he had given evidence against inmates in the past. The fragility of the factual assumption on which this is based has already been referred to. Even if it were sound, the suggested conclusion does not sit well with Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667. There an informer was protected even though it was known he had informed against the accused in relation to one crime on the ground that it was not known that he had informed against that accused and other unidentified persons in relation to other unidentified criminal activity for which no charges had yet been laid. The Court of Criminal Appeal evidently thought that the additional quantity of informing might result in additional risks.
138 In short, the factors stated in paragraph [24] of Levine J's Judgment do not destroy either the sincerity of the Witness or the reasonableness of his fears because the underlying evidence to which Levine J is cross-referring does not support any such process of destruction.