Smith v PRQ

This case considers the meaning of “reasonable excuse” in circumstances where an examinee has failed to answer a question at a hearing of the Crime and Corruption Commission (“CCC”). The respondent had been shot while involved in some suspicious behaviour. Two men were charged with his attempted murder. The respondent was called to give evidence at a hearing of the CCC. The respondent refused to answer questions on the basis that he had a reasonable excuse, namely he feared for his life. The presiding officer decided that the respondent did not have a reasonable excuse and certified that the respondent was in contempt. Justice Dalton held that the CCC failed to establish that the respondent did not have a reasonable excuse to answer the questions. In reaching this conclusion, Her Honour held that assessing whether an examinee has a reasonable excuse is not a balancing exercise, whereby the public interest in the CCC receiving the examinee’s evidence is weighed against the examinee’s excuse. Rather these are both factual matters which should be taken into account. Her Honour also found that the CCC failed in their duty of fairness in prosecuting the application.

Dalton J

21 June 2022

Background

This matter concerns an application by the Crime and Corruption Commission (“CCC”) for the respondent to be punished for contempt. The contempt is said to arise from the respondent’s failure to answer a question without reasonable excuse at a hearing of the CCC. [1].

In June 2021, the respondent was shot while engaging in some “suspicious behaviour”. [4].

A and B were charged with the respondent’s attempted murder. C and D were charged with a related arson. [5].

The police interviewed the respondent. However, his answers were not particularly helpful to police. [6].

A serious crime investigation was approved by the chairperson of the CCC on 8 July 2021 in relation to the respondent’s attempted murder. An attendance notice was issued on the respondent. [17].

Bail applications

In the hearing of the contempt application, the respondent relied on bail affidavits sworn by police for A, B, C and D.

The affidavit for A observed that A had an extensive criminal history and that, amongst other things:

• “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.” 
• “It is evident that [A] is extremely violent and volatile and has no regard for human life or the consequences of his actions”.
• “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”.
• “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”. [9]–[11].

Similar assertions were also made in the bail affidavits for B, C and D. [12]–[16].

The CCC hearing

Section 190(1) of the Crime and Corruption Act 2001 (“the Act”) 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 of the Act provides that a person is in contempt of the presiding officer if they fail to answer a question put to them by the presiding officer. [2].

The respondent attended the hearing in September 2021. The respondent was asked about the “suspicious behaviour” in June 2021. The respondent refused to answer questions about those events because he was “scared for my life”. After some legal argument, the hearing was adjourned. [19].

In October 2021, the hearing resumed. During that hearing, there was some discussion about whether the “respondent would be prepared to ‘go on witness protection’”. However, no substantive information was provided to the respondent about witness protection. Ultimately, the presiding officer held that the respondent did not have a reasonable excuse for not answering questions. The hearing was adjourned. [22].

During the period of adjournment, the respondent did not appeal the presiding officer’s decision. [23].

On the next occasion of the hearing, the respondent again refused to answer questions about the “suspicious behaviour” in June 2021 on the basis that he feared for his life. [24]. The presiding officer certified, pursuant to s 199 of the Act, that the respondent was in contempt of the CCC. [24].

Onus of proof

It was uncontentious that the respondent had an evidential onus to raise facts which were said to give rise to a reasonable excuse. The onus then shifted to the CCC to provide that there was no reasonable excuse. “The standard of proof is beyond reasonable doubt”. [34].

Decision of the Supreme Court of Queensland – assessing “reasonable excuse”

Justice Dalton held that the respondent discharged the evidential burden on him. He “said enough at the Commission hearing to indicate he feared for his life”. Her Honour observed that by the time of the CCC hearing A and B had been charged with the respondent’s attempted murder. [35].

In considering whether the CCC had established that the respondent did not have a reasonable excuse, Her Honour held that the exercise is not a balancing exercise. [43]. It is to be “judged objectively” and does not require the presiding officer to weigh up the public interest in the CCC learning of an examinee’s evidence against the examinee’s excuse. [44].

Justice Dalton held that the consequence of the CCC not receiving the examinee’s evidence is one factual matter to be considered in assessing whether a reasonable excuse exists. [43]. But that “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”. [46].

Ultimately, Her Honour held that the CCC failed to establish that the respondent had no reasonable excuse to refuse to answer the CCC’s questions. [63].

Justice Dalton rejected the CCC’s submission that the bail affidavits were not relevant and held that the bail affidavits provided important information about whether “there is an objective rational basis” for the respondent’s expressed fear. [51]. Her Honour pointed to the fact that the bail affidavits showed that A and B were “dangerous”, and their associates were “dangerous”. [50].

Due to factual matters that could not be set out, Her Honour also rejected the CCC’s submission that due to orders made around publication there was no real risk of the respondent’s participation in the hearing being exposed. [56].

The CCC failed in their duty of fairness in prosecuting this application

The bail affidavits were in existence at the time of the respondent’s hearing before the CCC.

However, the CCC did not put them before the Court. The respondent’s solicitor applied for disclosure of the bail affidavits and gave copies to the CCC. Even then, the CCC did not put them before the Court. They were provided to Her Honour as exhibits to an affidavit sworn by the respondent’s solicitor. [65].

Justice Dalton held that the bail affidavits were “plainly relevant”. “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”. [67].

Her Honour will hear the parties as to costs. [69].

A Hughes of Counsel