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Smith v PRQ QSC 123
SUPREME COURT OF QUEENSLAND
Smith v PRQ  QSC 123
FORBES HUSTON SMITH (as Presiding Officer of the Crime and Corruption Commission)
Supreme Court of Queensland
21 June 2022
20 May 2022
CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the respondent was called to give evidence before a Crime and Corruption Commission investigative hearing – where the respondent refused to answer questions – where the respondent asserted that he feared for his life – where the respondent asserted that he had a “reasonable excuse” not to answer questions under s 190 of the Crime and Corruption Act 2001 (Qld) (“CCA”) – where the presiding officer decided that the respondent did not have a “reasonable excuse” – where the respondent did not appeal the presiding officer’s decision under s 195 of the CCA – where the presiding officer certified that the respondent was in contempt – where the applicant seeks an order that the respondent be punished for contempt – whether the respondent had a “reasonable excuse” to refuse to answer questions – whether the Commission proved beyond reasonable doubt that the respondent did not have a “reasonable excuse”
JL Gorry for the applicant
JR Hunter QC and JJ Underwood for the respondent
Crime and Corruption Commission for the applicant
- This is an application brought by the Crime and Corruption Commission (CCC) asking that the respondent be punished for contempt. The contempt is alleged to be failing to answer a question without reasonable excuse at a hearing conducted pursuant to chapter 4 of the Crime and Corruption Act 2001 (Qld) (CCA). All statutory references are to that Act unless otherwise specified.
- Section 190(1) provides that, “A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse”. Section 198(1) provides that, “A person is in contempt of the presiding officer conducting a commission hearing if the person … (c) at the hearing, contravenes a provision of this Act relating to the hearing; or … (e) does anything at the hearing or otherwise that would be contempt of court if the presiding officer were a judge acting judicially.” Section 198(4) provides that, “To remove any doubt, it is declared that the following contraventions relating to a hearing may be certified in writing to the Supreme Court under section 199 as a contempt of the presiding officer … (c) a failure by a person, under section 190 … to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse.” (my underlining).
- There is no dispute that the respondent was before a commission hearing and refused to answer questions put to him by the presiding officer. There is no contention that he has a lawful excuse, such as duress, see below. The issue is whether he did so without reasonable excuse.
- In June 2021 the respondent was involved in some suspicious behaviour. He was shot during the course of it. He was badly injured but managed to call Triple 0. Police and ambulance officers attended. The respondent was taken to hospital where he underwent surgery. He would have died had this not occurred.
- Two people, who I will call A and B, were apprehended and remain in custody charged with the attempted murder of the respondent. Two other people, who I will call C and D, were charged with arson of a car involved in the suspicious behaviour.
- The police interviewed the respondent but he did not provide helpful information to them.
- A, B, C and D made bail applications. The following information is available from the affidavits sworn by police on those bail applications.
- The circumstances leading to A’s arrest were that he spent a night in a motel with B. After checkout, cleaners found two firearms left in the room, along with ammunition. They called the police. A and B returned to the motel the next day to collect their forgotten property and police arrested A and his associate D (see below) shortly thereafter. At the time of his arrest A was carrying a handgun concealed in his jeans. The gun was loaded. There were drugs and ammunition in his car and in his bedroom. A was in a de facto relationship with D.
- A was charged with attempt to murder (the respondent), as well as four weapons charges, unlawful use of a motor vehicle and five drug possession charges. The police material on the objection to bail affidavits included the following:
“The defendant is alleged to have committed a raft of serious offences, of most significance the defendant is alleged to have committed the offence of attempted murder … The defendant is alleged to have shot [the respondent] in the back as [the respondent] was attempting to run away from him. This has caused [the respondent] extensive injuries to his abdomen and he is receiving continuing medical treatment. [The respondent] was not armed and was not physically violent prior to being shot and it appears to be an unprovoked and premeditated attack. The victim has not co-operated with police throughout this investigation, likely due to the capacity of [A] and his associates to commit acts of serious violence. The defendant is also alleged to have committed the offence of unlawful possession of weapons … short firearm in public which incurs a minimum mandatory sentence of one year imprisonment wholly served. …” (my underlining).
- A is described as follows:
“The defendant is a [relatively young] unemployed male person currently residing in South East Queensland. The defendant is a drug dependent person and his history of offending is consistent with methylamphetamine fuelled criminal activity. The defendant is transient and has no known fixed place of abode. …
The defendant has seven pages of Queensland Criminal History, which primarily consists of property related offences. The defendant has been sentenced to several custodial sentences since turning 18 years where he has served an extensive time incarcerated however this has not deterred his offending, and the defendant has not lasted a month in the community upon his release before being taken back into custody, having alleged to have committed fresh serious offences involving violence.
The defendant has a history of firearm possession and was located by police in possession of 8 stolen rifles in 2015.”
- The objection to bail material also contained the following:
“Unacceptable risk that the defendant would commit an offence/
endanger the safety and welfare of a person if released on bail –
It is evident that the defendant is extremely violent and volatile and has no regard for human life or the consequences of his actions. The defendant has committed attempted murder and after this offence was then located in a public place carrying a loaded concealed firearm. The defendant clearly has no regard for the court system or the safety and wellbeing of any other persons. The defendant was only released from prison approximately 4 weeks ago and has now committed further serious offences. The defendant is dangerous and is a risk to human lives if he was to be released. The defendant also has a drug problem which if he was released on bail would continue to commit further drug and weapons offences. Even though the victim is non co‑operative with police in relation to this matter, there is a grave concern for his safety and wellbeing should the defendant be released from custody. It is unknown how the victim and defendant are known to each other, but from the investigation conducted, there is some form of relationship between them. If the defendant is released from custody and believes the victim was speaking with police, there are serious concerns that retribution will be sought.” (my underlining).
- The defendant B was also arrested after the information received from the motel. He is described as follows:
“The defendant is a [middle aged] unemployed male person currently residing at … The defendant is a drug dependent person and his history of offending is consistent with methylamphetamine fuelled criminal activity. The defendant stated to police that he is rarely at his home address and also made admissions to police to using methylamphetamine intravenously.
The defendant has nineteen pages of not for production Queensland Criminal History, which primarily consists of property related offences, drug offences. The defendant has been sentenced to several custodial sentences since turning 18 years where he has served an extensive time incarcerated however this has not deterred his offending.”
“The defendant is alleged to have committed a raft of serious offences, of most significance the defendant is alleged to have committed the offence of attempted murder …
An associate of the defendant, who is known to police, has been dropped off in the adjacent car park. A short time later, the associate of the defendant appears and has shot [the respondent] in the back as [the respondent] was attempting to run away from him. This has caused [the respondent] extensive injuries to his abdomen and he is receiving continuing medical treatment. [The respondent] was not armed and was not physically violent prior to being shot and it appears to be an unprovoked and premeditated attack. The victim has not co‑operated with police throughout this investigation, likely due to the capacity of [B] and his associates to commit acts of serious violence. …” (my underlining).
- The objection to bail material also included the following:
“Unacceptable risk that the defendant would commit an offence/
endanger the safety and welfare of a person if released on bail –
It is evident that the defendant is extremely violent and volatile and has no regard for human life or the consequences of his actions. The defendant clearly has no regard for the court system or the safety and wellbeing of any other persons. The defendant has no remorse for his actions and from his history of offending, regardless of bail conditions, the defendant has a propensity for committing offences and breaching any and all bail conditions.
The defendant is dangerous and is a risk to human lives if he was to be released. The defendant also has a drug problem which if he was released on bail would continue to commit further drug offences which could lead to property and weapon offences.
Even though the victim is not co-operative with police in relation to this matter, there is a grave concern for his safety and wellbeing should the defendant be released from custody. It is unknown how the victim and defendant are known to each other, but from the investigation conducted, it is evident that there is some form of relationship between them. If the defendant is released from custody and believes the victim was speaking with police, there are serious concerns that retribution will be sought.” (my underlining).
- The objection to bail material in relation to C included the following:
“The defendant has shown a propensity for continual and ongoing offending without rest and remorse and is likely to continue to offend in the nature described previously if bail was granted.
The defendant has an extensive eighteen-page criminal history in Queensland dating back to 2006. It is clear to investigators that the defendant is failing to understand the consequences to her actions and has made no attempts to rectify her behaviour.
The defendant was sentenced to a term of imprisonment however since her release has immediately engaged in criminal offending with the most recent offending occurring in June 2021.
It is the investigating officer’s opinion that there is a risk of the defendant harming members of the public if she was to be granted bail and she continue to offend in the manner which she has done recently.
Her extensive criminal history outlines a person who has no apparent interest or regard for the safety and well-being of herself or other members of any community.
[In] June 2021, the defendant was arrested by virtue of fourteen outstanding arrest warrants including a bench warrant from the Supreme Court. …
Due to the above concern together with the current behaviour of the defendant and her past actions, police strongly believe that the defendant is an unacceptable risk should she be released on bail.”
- The objection to bail material in relation to D describes her as follows:
“The defendant is a [middle-aged] unemployed female person … The defendant has an extensive criminal history and a lack of employment history. The defendant has twenty-one pages of not for production Queensland Criminal History, which primarily consists of property related offences and drug offences. The defendant has previously spent time incarcerated and also has previous history for possessing unlawful firearms.
The defendant has no desire to adhere to the law or any bail conditions. The defendant is known to associate with extremely violent criminals who have easy access to both guns and drugs. …”
The Police Investigation
- The police investigation has considerable evidence. In particular sufficient information to arrest A, B, C and D. Nonetheless, they believe another person to have been involved in the shooting and they believe that the participants in the suspicious behaviour in June 2021 were involved in other serious offending. To further investigate these matters the chairperson of the CCC approved a serious crime investigation on 8 July 2021 concerning the circumstances of the respondent’s attempted murder. Two weeks after that, on 21 July 2021, the CCC issued an attendance notice compelling the respondent to testify about matters relevant to that investigation. The notice compelled the respondent to attend the CCC and give evidence about matters specified in a schedule, namely:
“Your knowledge of the involvement of others in the attempted homicide of [yourself] on 10 June 2020 [sic], including their involvement in the following related criminal offending:
- (a)offences against the Drugs Misuse Act 1986;
- (b)offences against the Weapons Act 1990;
- (c)offences against the person contrary to Part 5 of the Criminal Code; and
- (d)property offences contrary to Part 6 of the Criminal Code.”
- The notice does not require the respondent to be examined as to criminal activity he might have committed.
The CCC Hearing
- In September 2021 the respondent attended the CCC, as he was obliged to do. After some preliminary questions, he was asked about the suspicious behaviour in June 2021. Counsel instructed by the respondent objected on the basis that the respondent had a reasonable excuse not to answer the question. The question was asked again and the respondent said he was unwilling to answer it because he was “scared for my life”. There was legal argument and an adjournment.
- The matter resumed about three weeks later, in October 2021. The presiding officer of the CCC said this:
“… I accept he has a fear of harm. He said he’s afraid on oath. He’s been – attempts have been made on his life and he’s being asked to give evidence against the suspects, the offenders. I think in those circumstances not surprised that he’s fearful. …
The – the question it seems to me is that whilst for example in Barbaro’s case the – the court said that the witness must hold that fear it is nevertheless an objective test the question of whether it’s a reasonable excuse or not. So even if he – I accept that he’s got a, a fear of harm, I still have to make a decision about whether that’s a reasonable excuse in the circumstances. The question is not whether he’s got a reasonable fear, it’s whether he’s got a reasonable excuse, that’s the way I see it.
… I think given these circumstances that he has been shot at and almost killed and that there is – he is being treated for some post traumatic condition I think, I can accept that he has a fear of being injured.
… I suppose I can say it’s reasonable fear given that he has a reasonable basis for having that fear given the circumstances, giving rise to his shooting and, now coming before the Commission.
- At the conclusion of argument on this point, the presiding officer made these remarks refusing a further adjournment which would have allowed him to receive a letter from the respondent’s treating psychiatrist. He said in reasons for this decision:
“… I am satisfied that [the respondent] is fearful of the consequences of giving evidence against the people involved in the matter the subject of the attendance notice. That arises both from his statement on oath that he is afraid and I take that to mean afraid of the consequences of giving evidence and also the nature of the, the offending – the suspected offending as well in which a gun was used to shoot [him] with near fatal consequences. It is not surprising therefore that he is fearful of giving evidence. Having accepted that it seems to me that it’s a matter for an objective assessment about whether that fear gives rise to a reasonable excuse not to answer questions and I am of the view that medical evidence will not be of any useful assistance in coming to such a decision.”
- There was then some discussion about whether or not the respondent would be prepared to “go on witness protection”. In that discussion it became clear that there was no information available to the respondent as to whether he qualified for witness protection and, if so, what would be provided by way of witness protection. There was then a brief adjournment and the presiding officer returned and gave his decision that he was not satisfied the witness had a reasonable excuse for not answering questions.
- There is a provision allowing an appeal from such a decision – s 195. An adjournment was granted to allow the respondent to decide whether to appeal. At the resumed hearing the respondent said he would not appeal. The presiding officer said that in those circumstances he would commence questioning the respondent again. Legal representatives for the respondent said that if that were to occur, the respondent would maintain his position based on reasonable excuse.
- The respondent was sworn again. He was again asked much the same question as that which he had previously refused to answer. He again said that he did not want to answer that question and again gave the reason, “fear for my life”. He was asked some more similar questions and each time refused to answer. He again said he was afraid, and was asked what he was afraid of. He said, “Retribution being here and answering those questions. … Retribution, I’m scared for my life that the people that shot me are going to take my life because youse has brought me here to testify against them.” The presiding officer refused to discharge the respondent from answering further questions and in due course certified that the respondent was in contempt of the CCC.
The Respondent’s Failure to Appeal
- Chapter 4 Part 2 is headed “Refusals and claims of privilege and reasonable excuse”. Division 1 deals with refusal to be sworn before a commission hearing; Division 2 deals with refusals to produce a document or thing at a commission hearing; Division 3 deals with refusal to answer questions at a commission hearing.
- Division 4 of Chapter 4 is headed “Deciding claims”. Section 194 provides that an officer presiding at a commission hearing is to decide whether or not a refusal to answer a question or produce a document or thing is justified. Section 194(1) says that, “This section applies if a person claims to have a reasonable excuse … for not complying with a requirement made of the person at a commission hearing – (a) to answer a question put to the person …”. The section obliges the presiding officer to decide whether or not there is a reasonable excuse.
- Section 194(3) provides:
“If the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement, the presiding officer must –
- (a)give the person reasons for the decision; and
- (b)require the person to answer the question, or to produce the document or thing as required by the attendance notice, subject to the person’s right of appeal under section 195; and
- (c)advise the person that the person may appeal the presiding officer’s decision to the Supreme Court within the time allowed under section 195.”
- Section 195 is headed “Appeals to Supreme Court”. It provides:
“(1) A person may appeal against a decision of a presiding officer given under section 194(3)(b) if –
- (a)the person applies for leave to appeal the decision within 7 court days after the person is given the presiding officer’s reasons for decision; and
- (b)the Supreme Court grants leave to appeal.
- (2)The Supreme Court may grant leave to appeal only if the court is satisfied –
- (a)if the appeal relates to a document or thing …
- (b)in all cases – the appeal has a significant prospect of success or there is some important question of law involved.
- (5)On hearing the appeal, the Supreme Court may make an order –
- (a)affirming the presiding officer’s decision; or
- (b)setting aside the presiding officer’s decision.
- (8)A person may appeal only once under subsection (1) in relation to a particular reasonable excuse claimed by the person for not answering a question or producing a document or thing at a commission hearing.
- In outlines of argument exchanged before the hearing of this matter the CCC relied upon the respondent’s failure to appeal pursuant to s 195 as meaning that the question of whether or not there was a reasonable excuse for the failure to answer questions had been “arguably settled”. In the alternative, it submitted that before the respondent could raise the question of reasonable excuse on the contempt charge, there had to be an application to appeal, and a grant of leave, pursuant to s 195 of the CCA.
- That position was withdrawn at the hearing. Because I did not hear argument upon it, I will not express any concluded view, but it seems to me that the decision to withdraw reliance on the point was sensible because:
- (a)there is nothing express in the CCA which provides that a failure to appeal a presiding officer’s decision that there is no reasonable excuse means that the issue cannot be raised on a contempt proceeding – cf s 195(8); and
- (b)it would be unusual for an investigative officer, part of the executive, to finally determine a factual question which was an element of a contempt.
Certification of Contempt
- Section 199 provides for punishment of contempt:
“(1) A person’s contempt of the presiding officer conducting a commission hearing may be punished under this section.
- (2)The presiding officer may certify the contempt in writing to the Supreme Court (the court).
- (3)For subsection (2), it is enough for the presiding officer to be satisfied that there is evidence of contempt.
- (6)The court must inquire into the alleged contempt.
- (7)The court must hear –
- (a)witnesses and evidence that may be produced against or for the person whose contempt was certified; and
- (b)any statement given by the person in defence.
- (8)If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court.
- (10)The presiding officer’s certificate of contempt is evidence of the matters contained in the certificate.
- The provision for a certificate, and the provision that it is evidence of the matters contained therein, are oddly ill-defined. The practice of the CCC in relation to the certificate is also odd. Rather than being a one or two page document certifying that in the presiding officer’s view a contempt occurred at a particular date or time, the certificate is a document of 70 or 80 pages which, in its substance, resembles an affidavit setting out what the Commission believes to be all the relevant facts and annexing all relevant documents, such as the transcripts of the Commission hearings and the exhibits before the Commission during those hearings. There is no statutory form of certificate, but I was told this was the CCC’s normal practice.
- In any event, having regard to s 199(3), (6), (7), (8) and (10), it appears that the presiding officer’s certificate is of no more weight than an affidavit filed in the Court might be. That is, there is no conclusive or even prima facie evidentiary effect to the certificate.
Onus of Proof
- The parties were agreed that there was an evidential onus on the respondent to raise facts which were said to give rise to a reasonable excuse, but that the onus thereafter was on the CCC to prove that there was no reasonable excuse. The standard of proof is beyond reasonable doubt.
- The respondent said enough at the Commission hearing to indicate he feared for his life from the persons who attempted to murder him in June 2021. These statements were made to the presiding officer in September and October 2021. By that stage the seriousness of the attack on the respondent was known and A and B had been charged with his attempted murder, an offence which has as an element intent to kill. In my view, the respondent’s statements to the Commission in these circumstances satisfied the evidential onus on him. Therefore, the question before me was whether the applicant had proved beyond reasonable doubt that the respondent did not have a reasonable excuse for answering his questions.
What will amount to a Reasonable Excuse at Law
- In Schultz v CMC Muir J said this:
“Curiously, the Act is silent as to what may constitute a reasonable excuse. It is not, so far as I am aware, a concept capable of precise definition. Presumably it was intended to give the presiding officer a degree of practical latitude so as to prevent the consequences of answering a question from causing harm disproportionate to the benefit resulting from the answer.”
- For a brief period s 190 contained the following subsection:
“(4) A prescribed person’s fear, whether genuinely held or not, of –
- (a)personal physical harm or damage to the person’s property; or
- (b)physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond;
is not a reasonable excuse to fail to answer a question if the investigation or intelligence hearing relates to a criminal organisation or a participant in a criminal organisation.
- (5)In this section – prescribed person means a person who is a participant in a criminal organisation.”
- This gives an indication that a fear of harm to one’s self, someone else, one’s property, or the property of someone else, might in particular circumstances, constitute the basis for a reasonable excuse.
- As well, it has been recognised in the case law that fear of physical harm to one’s self or one’s family can be the basis of a reasonable excuse.
- The case of Crime and Misconduct Commission v WSX invites analysis. In that case the factual matters were summarised by the Court of Appeal as follows:
“The only material before the Judge was that the respondents had been the victims of a serious assault and that they subjectively feared reprisal if it emerged they had responded to the Commission‘s questioning. …
Counsel for the appellant emphasized there was no evidence that the fear of reprisal was reasonable; there was no evidence as to the level of any risk; and that the material stopped at the assertion of the respondents’ subjective beliefs. …
In this case, the existence of ‘reasonable excuse’ depended on the assumption that the respondents’ assailants would reach the conclusion that the respondents had given evidence before the appellant which may identify them, and would therefore determine to, and in fact, commit further assaults upon them. It is speculative to contemplate that the circumstances of the respondents’ presence, and presentation, before the appellant would, in breach of law, be disclosed and come to the knowledge of the respondents’ previous assailants or their associates. …”
- The Court of Appeal went on to say:
“There is a high public interest in identifying those responsible for serious criminal offending. While the respondents’ own concern is understandable, that it is borne of the previous assault – as substantially the only matter founding the Presiding Officer’s decision and the Judge’s contrary finding, was not enough to warrant a conclusion that they had reasonable excuse not to answer a question which if answered may have led to the identification of their assailants. In determining whether or not there was ‘reasonable excuse’, the decision maker had to balance the respective considerations of the public interest in tracking those responsible for violent crime, and the private concerns of those who may be able to disclose those responsible.” – .
- This last paragraph of reasoning in the Court of Appeal was a refined version of the presiding officer’s decision in that matter, which was that the respondents had not satisfied him that the consequence of the respondent’s failure to answer “far outweighed” or were “disproportionate to” the very clear benefits which would ensue were answers given. – -. In that case the presiding officer had referred to that part of Muir J’s decision in Schultz above, and said that he placed “great weight upon the balancing test that Muir J [adverted] to in that passage”. – .
- I have tried to find a copy of the decision in Schultz without any success, and therefore cannot see the context of that passage which is quoted in WSX. However, it seems to me that the extract from Schultz which I do have could not be said to put forward any sort of balancing test. In determining whether or not a reasonable excuse exists, one factual matter which should be taken into account is the consequence to the Commission of a refusal to answer, bearing in mind the public interest in the Commission fulfilling its function of combating and reducing the incidence of major crime.
- Because the reasonableness of an excuse is to be judged objectively, the circumstances in which the excuse is claimed are relevant in assessing whether or not it is reasonable. At a level of generality, one could foresee that the higher the public interest in receiving the information which the respondent has to give, the more the respondent will have to show in order to demonstrate a reasonable excuse for not providing the information. That being said, the legislation does not provide that a citizen will be in contempt of the Commission if he refuses to answer where it is in the public interest that he do so. Further, while it might be true to say that both the excuse put forward by the person being questioned, and the public interest in the investigation, are both matters to be weighed in deciding whether or not the excuse is reasonable, there is no justification for the idea in the presiding officer’s reasons quoted in WSX that one of these factors is weighed against the other in order to arrive at the decision as to whether or not there is a reasonable excuse.
- In this regard I would draw attention to that part of the judgment of Kirby P in Ganin v New South Wales Crime Commission which is cited in WSX:
“There is no apparent reason to read down exemptions for ‘reasonable excuse’ in s 18(2) of the Act. On the contrary, there is every reason to give the words used their ordinary construction. They simply ask whether the refusal to answer the question was ‘without reasonable excuse’ … In accordance with orthodox cannons 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. …”
- In this context it is worth considering that the Commissioner will rarely, if ever, be conducting an examination where it would not be significantly in the public interest for the examinee to provide information. The CCC will not be conducting such an examination unless a serious crime investigation has been approved by a delegate of the chairperson.
- Another concept which is distinct from that of reasonable excuse is the defence of duress. There is sometimes a defence of duress available to a witness who refuses to answer a question in a court hearing either at common law or under the Queensland Criminal Code. In R v Garland White J said this about the defence of duress in the context of a contempt of court constituted by a failure to answer a question in Court:
“… a person is not criminally responsible for an act if done in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats and believing himself otherwise unable to escape the carrying of the threats into execution. The recent amendments to s 31 [of the Criminal Code] remove the requirement that the threatener be actually present and extend the excuse to threats to others. This has moved the provisions of the Code closer to the common law …”.
- In 2000, after Garland’s case was decided, s 31(1)(d) of the Criminal Code was amended again. The annotations to Carter’s Criminal Law of Queensland describe the effect of that amendment:
“The 2000 amendments of s 31(1)(d) allow a wider range of threats to constitute the excuse. It removes the requirement that the threat be one of immediate death or grievous bodily harm and replaces it with the threat of serious harm or detriment to be inflicted by a person in a position to carry out the threat. It also expands the nature of the threat to cover a threat to property. In those regards, the present provision is wider than the defence at common law.
Paragraph (ii) requires the person must believe himself or herself being otherwise unable, except by doing the act or making the omission, [to escape] the carrying out of the threats into execution. The test is entirely subjective and thus allows the possibility of mistake as to the availability of alternative options.
Paragraph (iii) requires that, in addition, doing the act or making the omission is reasonably proportionate to the harm or detriment threatened. The requirement is thus an objective one.”
- It is apparent that the defence of duress to a charge of contempt of court is a different thing from the concept of reasonable excuse in s 198(4)(c). Duress might be a lawful excuse for refusing to answer a question, see s 198(4)(c) at  above. A passage from Gilby (above) was extracted in WSX. It is a passage which emphasises “elements of immediacy, directness and fear” of the defence of duress. The passage was introduced with a sentence explaining that counsel for the Commissioner in that case referred to duress cases as “of some assistance” – . In my view, care must be taken with cases relating to this different defence lest requirements of that defence be used to read down or narrow the construction of s 198(4)(c).
Applicant’s Failure to Exclude Reasonable Excuse in this case
- Here the respondent was very seriously injured after what police allege was an attempt to kill him. Under examination three, and then four months later, he said that he feared for his life were he to co‑operate with the applicant’s enquiries. He does not give any detail of this, and it takes little thought to understand that giving any meaningful detail about those whom he fears, and why he fears them, would engender the same fear in him as answering the Commission’s questions. The objection to bail affidavits show that notwithstanding the respondent’s reticence to give details, there was an objective basis in fact for his fears. The objection to bail affidavits also show that not only are A and B dangerous and violent men, they have associates who are also dangerous and violent.
- I reject the applicant’s submissions that the information contained in the objection to bail affidavits was not relevant because there was no evidence that the respondent knew these things at the time he refused to answer the Commissioner’s questions. The information in the affidavits is plainly relevant to the question of whether or not there is an objective rational basis for the fear expressed by the respondent to the presiding officer. This is important for, “… the word ‘reasonable’ connotes that the excuse must be objectively reasonable”.
- In these circumstances, I reject the applicant’s submission that the respondent before me does no more than merely assert a subjective fear of physical harm. This case is different from that of WSX in this regard – see  of WSX.
- The Commission relies upon the fact that the hearing at which the respondent was asked to give information was a closed hearing, and that in September 2021 the presiding member had ordered that:
“(a) An answer given, or a document or thing produced, at the closed hearing, or anything about the answer, document or thing, or
- (b)information that might enable the existence or identity of a person who is about to give or has given evidence before the commission at the closed hearing to be ascertained,
shall not be published without the commissioner’s written consent.” – see s 180(3) CCA.
- The order was expressed to “remain in force until varied or withdrawn in writing”.
- In my view, the order as to conditions of publication is of limited assistance to the respondent. The CCC investigations are not simply in relation to the events of the shooting in June 2021. It is suspected that there is associated serious offending. The respondent is suspected to possess information which would assist the investigation. One of the principal investigating police officers was present at some of the closed hearings, and when he was not there, another police officer was.
- The police would of course act upon the information which was provided by the respondent in answer to the questions at the Commission hearing; this was acknowledged by counsel for the Commissioner. Counsel appearing for the Commissioner before me said in his written submissions, and several times in his oral submissions that the respondent was “uniquely placed” to provide information. If in fact the respondent was uniquely placed to give the information the police need, I think it probable that the offenders would understand the source of the police information if police did take action against them or their associates based on that information. Even allowing for a little hyperbole in the submission, I think there is a real and rational likelihood that these people might reach the conclusion that action against them was a result of information provided by the respondent. This conclusion rests on factual matters which underlie the submission made by counsel for the applicant but which I cannot include in these reasons for judgment because of s 200A(7).
- I therefore reject the Commissioner’s submission that “the assumption that the respondent’s assailants would find out he had given evidence in relation to their offending … was merely speculative”. Again this case differs from the case of WSX, see  of that case.
- A more general consideration against the applicant is that the Commissioner could give consent to publication, or vary or withdraw the order at any time.
- The Commission relies upon the fact that at the time the respondent refused to answer questions, A and B were in custody. As noted above, the police material on the bail applications was that these men were part of a network, and that A and B had violent associates. There must therefore have been a real possibility that there were other persons who might harm the respondent even though A and B were incarcerated.
- Lastly as to these type of matters, although witness protection was discussed with the respondent, there was never any offer made to him. In circumstances where the respondent has not said that he would not be amenable to any witness protection scheme, it seems to me that it is up to the Commission to put evidence before the Court that it offered witness protection, and explain the detail of that, if it wishes to rely upon the availability of such protection to argue that the respondent did not have a reasonable excuse for answering its questions.
- As to the public interest, the applicant relies upon the fact that the offending being investigated was serious and that this “outweighed” the fears asserted by the respondent. As discussed above, this Court does not conduct an enquiry to see whether the public interest outweighs fears expressed by someone who does not wish to answer the Commission’s questions. My task is to consider whether the Commission has proved beyond reasonable doubt that this respondent does not have a reasonable excuse for failing to answer questions put by the presiding officer. In considering that, I take into account that the offending is serious and that the police believe there is more associated serious criminal activity to be uncovered.
- The public interest concerns relied upon by the Commission are in my view reduced by the fact that, without the assistance of the respondent, the police have apprehended A, B, C and D, and they have good evidence against the first of those two in relation to the most serious charge, attempted murder. Further, it is the respondent who is the victim of the most serious offending, and it is he who does not wish to assist the Commission with its enquiries. This must be relevant here in the respondent’s favour.
- Even though I recognise that there is a public interest in having the respondent co‑operate with the applicant’s enquiry, I am not satisfied that there was no reasonable excuse for the respondent’s failure to answer the applicant’s questions. There is objective evidence of real danger to his life had he done so.
Duty of Fairness in Prosecuting this Application
- Lastly, I wish to comment on the way the affidavits in objection to bail were produced to this Court. The affidavits were sworn some 10 days after the shooting and the attendance notice was issued to the respondent some six weeks after the shooting. Therefore the affidavits were in existence and in the possession of the police investigating the incident at the time the attendance notices were issued. They were not put before the presiding officer and the CCC did not put them before me.
- It was left to the respondent’s solicitors to make an application for disclosure in this application and obtain them from the police. The respondent’s solicitors then gave them to the CCC. The CCC still did not exhibit them to an affidavit before me. They were exhibited to an affidavit sworn by the respondent’s solicitors.
- Counsel appearing for the CCC told me that he did regard himself as being bound by an overriding duty of fairness in prosecuting this contempt application, just as a prosecutor, from say the DPP, would be. I can see difficulties with this idea when the Commission is represented by in-house lawyers on this type of application: the Commission is both the complainant and the prosecutor.
- In any event, I cannot see that the Commission, or its counsel, acted consistently with this duty in this case. The objection to bail affidavits were plainly relevant to the question of reasonable excuse. It was not fair for the CCC to argue that the respondent only put before the Court mere assertion and no evidence of a real threat, when it knew that the objection to bail affidavits supported a very different picture and it did not put them before this Court. That was certainly the position after the bail affidavits were given to the CCC by the lawyers for the respondent.
- Before that, counsel for the CCC submitted, the affidavits were in the possession of the police, not the CCC. I accept that. However, the police officer instructing at the Commission hearings must have known what was in, or what was likely to be in the objection to bail affidavits: he describes himself as one of the principal investigators of the police team investigating these matters. The police were co-operating closely with the CCC. I think there are real questions as to why the affidavits were not put before the presiding officer at the Commission and why they were not put before this Court at the time the application for contempt was filed.
- I will hear the parties as to any further orders they seek, including as to costs.
 Callanan v Witness M (2017) 264 A Crim R 349, 360-361;  QSC 2, - and the cases cited there.
 Unreported Supreme Court Queensland, Muir J, 31 October 2003, as cited in WSX, see footnote 4 below.
 Taken from the judgment in Callanan v Witness M.
 Crime and Misconduct Commission v WSX  QCA 152; Callanan v Witness M  QSC 2,  and R v QX  VSC 784, - following Director of Public Prosecutions (Vic) v Debono  VSC 408, -.
 Per Burns J in Callanan v Witness M (2017) 264 A Crim R 349, ;  QSC 2, .
 (1993) 32 NSWLR 423, 436, cited in WSX, .
 Registrar of the Court of Appeal v Gilby  NSWCA 235; cited in WSX at .
 Section 31(1)(d) Criminal Code (Qld).
 (1997) 95 A Crim R 264, 269.
 WSX (above),  and Commissioner of Police v Barbaro (2020) 6 QR 186, .
- Published Case Name:
Smith v PRQ
- Shortened Case Name:
Smith v PRQ
 QSC 123
21 Jun 2022
- Selected for Reporting: