AJH v Chief Examiner
[2011] VSC 499
•5 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2011 3975
| AJH | Plaintiff |
| v | |
| CHIEF EXAMINER | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2011 | |
DATE OF JUDGMENT: | 5 October 2011 | |
CASE MAY BE CITED AS: | AJH v Chief Examiner | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 499 | |
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ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Rescission of confidentiality notice – Rescission of non-publication direction – Major Crime (Investigative Powers) Act 2004, ss 20 and 43.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W.B. Lindner | Lewenberg & Lewenberg |
| For the Defendant | Ms R. Sharp | Office of Chief Examiner |
HIS HONOUR:
Introduction
The defendant is the Chief Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 (“the Act”). On 22 July 2011, an examiner (“the examiner”), to whom the defendant had delegated the Chief Examiner’s functions, duties and powers under Parts 2, 4 and 5 of the Act concerning an examination of the plaintiff, rescinded a confidentiality notice and a non-publication direction which had been given in respect of the plaintiff’s examination. In this proceeding, the plaintiff seeks an order in the nature of certiorari quashing the examiner’s decision of 22 July.
In his originating motion, the plaintiff claims to be entitled to the relief he seeks on the grounds of error of law on the face of the record. Specifically, the grounds relied upon by the plaintiff are as follows:
“(1)The defendant erred in taking into account irrelevant considerations, namely
(i) that (sic) the absence of any evidence of direct threats, the safety of the plaintiff or his family would not be prejudiced in the event of the rescission of the non-publication direction and confidentiality notice, and
(ii) that the power to rescind in these circumstances involves consideration of the importance of the evidence.
(2)The defendant erred in failing to take into account relevant considerations, namely that the plaintiff is to stand trial on [a date] with [others] … as co-accused.
(3)The defendant erred in the test he applied when deciding that the non-publication direction and the confidentiality notice should be rescinded.
(4)In the alternative, the defendant denied the plaintiff procedural fairness in that he failed to accord the plaintiff an opportunity to address all the material upon which the defendant made his decision to rescind the non-publication direction and the confidentiality notice.”
The defendant opposes the relief sought by the plaintiff, contending that the examiner’s decision does not involve any error of law (on the face of the record, or otherwise).[1]
[1]Cf R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13, 35.
Background to the proceeding
On 15 July 2010, this Court made a coercive powers order in relation to two organised crime offences within the meaning of the Act. On 16 March 2011, the defendant issued a summons pursuant to s 15 of the Act, requiring the plaintiff to attend to give evidence. At the same time, the defendant issued a confidentiality notice to the plaintiff pursuant to s 20 of the Act.
Section 20 of the Act provides:
“20. Confidentiality of witness summons and orders
(1) Subject to subsections (2) and (3), the Supreme Court or the Chief Examiner may give a person to whom a witness summons is issued under this Part or in respect of whom an order is made under section 18 or any person who executes an order under section 18 a written notice stating-
(a) that the summons or order is a confidential document; and
(b) that it is an offence to disclose to anyone else, except in the circumstances, if any, specified in the notice, the existence of the document or the subject-matter of the organised crime offence in relation to which the summons was issued or the order was made or any official matter connected with the summons or order, unless the person has a reasonable excuse.
(2) The Supreme Court or the Chief Examiner must give a notice under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice-
(a) the safety or reputation of a person; or
(b) the fair trial of a person who has been or may be charged with an offence; or
(c) the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made.
(3) The Supreme Court or the Chief Examiner may give a notice under subsection (1) if satisfied that failure to do so-
(a) might prejudice-
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or
(b) might otherwise be contrary to the public interest.
(4) If the Supreme Court gives a notice under subsection (1), the applicant for the witness summons or order under section 18, as the case may be, must give a copy of the notice to the Chief Examiner.
(5) If the Supreme Court or the Chief Examiner gives a notice under subsection (1), a person must not, without reasonable excuse, disclose to anyone else, except in the circumstances, if any, specified in the notice-
(a) the existence of the witness summons or order; or
(b) the subject-matter of the organised crime offence in relation to which the witness summons was issued or the order was made; or
(c) any official matter connected with the witness summons or order.
Penalty: 120 penalty units or imprisonment for 12 months or both.
(6) It is a reasonable excuse for a person to disclose the existence of the witness summons or order or the subject-matter of the organised crime offence in relation to which it was issued or made or any official matter connected with the summons or order if-
(a) the disclosure is made for the purposes of-
(i) seeking legal advice in relation to the summons or order or an offence against subsection (5); or
(ii) obtaining information in order to comply with the summons or order; or
(iii) the administration of this Act; and
(b) the person informs the person to whom the disclosure is made that it is an offence to disclose to anyone else the existence of the summons or order or the subject-matter of the organised crime offence in relation to which it was issued or made or any official matter connected with the summons or order, unless the person has a reasonable excuse.
(7) A notice under subsection (1) ceases to have effect if after the conclusion of the police investigation of the organised crime offence-
(a) no evidence of an offence has been obtained; or
(b) evidence of one or more offences has been obtained but a decision has been made not to commence any criminal proceedings in which the evidence would be relevant; or
(c) evidence of one or more offences committed by only one person has been obtained and criminal proceedings have commenced against that person;
or
(d) evidence of one or more offences committed by 2 or more persons has been obtained and-
(i) criminal proceedings have commenced against all those persons; or
(ii) criminal proceedings have commenced against one or more of those persons and the Chief Commissioner has been advised that no other persons will be prosecuted.
(8) If a notice under subsection (1) ceases to have effect under subsection (7), the Chief Examiner must give notice in writing of that fact to each person who was given the notice under subsection (1).
(8A) If the Supreme Court or the Chief Examiner is satisfied that the circumstances referred to in subsection (2) or (3) that led to the giving of a notice under subsection (1) no longer apply, the Court or the Chief Examiner, as the case may be, must give written notice of that fact to the person to whom the notice under subsection (1) was given.
(8B) On the giving of the notice under subsection (8A), the notice under subsection (1) ceases to have effect.
(8C) A notice under subsection (1) ceases to have effect at the end of the period of 5 years after the notice is given (or that period as extended under subsection (8F)) unless the notice has ceased to have effect earlier.
(8D) Subsection (8C) applies to a notice given on or after, or which is in effect on, the commencement of section 6 of the Major Crime Legislation Amendment Act 2009.
(8E) If the Chief Examiner or the Chief Commissioner is satisfied that an extension to the 5-year period referred to in subsection (8C) is necessary to protect a matter specified in subsection (8F)(a), (b), (c) or (d), the Chief Examiner or the Chief Commissioner must apply to the Supreme Court for an extension of that period.
(8F) The Supreme Court, on the application of the Chief Examiner or the Chief Commissioner under subsection (8E), may extend the 5-year period referred to in subsection (8C), if the Court is satisfied that an extension is necessary to protect-
(a) an investigation that is continuing (whether or not the investigation is, or is related to, the investigation in relation to which the witness summons was issued); or
(b) any proceeding that has been commenced but not finally determined; or
(c) the safety or reputation of a person; or
(d) the fair trial of a person who has or may be charged with an offence.
(9) In this section-
official matter means any of the following-
(a) the coercive powers order in reliance on which the witness summons was issued or the order under section 18 was made;
(b) the investigation of the organised crime offence in relation to which the witness summons was issued or the order under section 18 was made;
(c) an examination by the Chief Examiner for the purposes of that investigation;
(d) any court proceedings in relation to the witness summons or the order under section 18.”
Pursuant to the summons issued by the defendant, the plaintiff attended and was examined by the examiner in April 2011. During the course of the examination, the examiner made a written direction under s 43 of the Act prohibiting publication or communication of the plaintiff’s evidence. This direction included a prohibition on the publication of information that might enable the plaintiff to be identified as a person who had given evidence before the examiner. Additionally, the direction provided “This direction is made pursuant to the provisions of s 43(2) of the Act and I am satisfied that a direction must be made because a failure to do so may prejudice the fair trial of [named persons and AJH] who have been charged with an offence”.
Section 43 of the Act provides:
“43. Restriction on publication of evidence
(1) The Chief Examiner may direct that-
(a) any evidence given before the Chief Examiner; or
(b) the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c) any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d) the fact that any person has given or may be about to give evidence at an examination-
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2) The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(3) A person who makes a publication or communication in contravention of a direction given under subsection (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
(4) If-
(a) a person has been charged with an offence before a court; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Chief Examiner, being evidence in relation to which the Chief Examiner has given a direction under subsection (1), be made available to the person or to a legal practitioner representing the person-
the court may give to the Chief Examiner or the Chief Commissioner a certificate to that effect and, if the court does so, the Chief Examiner or the Chief Commissioner (as the case requires) must make the evidence available to the court.
(4A) When the Chief Examiner or the Chief Commissioner makes evidence available to the court in accordance with subsection (4), the court must give-
(a) Chief Examiner and the Chief Commissioner; and
(b) if a direction under subsection (1) involves the interests of a witness, the witness-
an opportunity to make submissions to the court as to whether or not the evidence should be made available, in full or in part, to the person charged or a legal practitioner representing the person.
(5) If-
(a) the Chief Examiner or the Chief Commissioner makes evidence available to a court in accordance with subsection (4); and
(b) the court, after examining the evidence and considering any submissions made under subsection (4A), is satisfied that the interests of justice so require-
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
(6) Nothing in this section empowers the Chief Examiner to give a direction under subsection (1) that would restrict the exercise of powers or the performance of duties by the Special Investigations Monitor under this Act or affect a person’s right under this Act to complain to the Special Investigations Monitor.”
On 8 June 2011, the Office of Chief Examiner wrote to the plaintiff in the following terms:
“We have been contacted by investigating police who have requested that your evidence be made available. They are seeking that the examiner rescind the confidentiality requirements attaching to your appearance and the evidence that you gave at your examination for the purpose of using your evidence in a prosecution.
The examiner is currently considering the rescission of the confidentiality requirements. This letter provides you with the opportunity to make submissions to the examiner as to whether or not the confidentiality notice and s 43 direction should be rescinded. Such submissions can be made orally or in writing.
If you wish to object to the publication of the evidence or make any other submissions about this matter, you must contact our office within seven days … .”
After further correspondence, the plaintiff was advised on 15 June 2011 that the examiner would consider the application for rescission on 11 July at 2.00pm. The plaintiff responded to this information by letter saying that he did not wish to attend on 11 July, but that he objected to the evidence he had given in the past being released to the public.
The examiner’s decision
On 22 July 2011, the examiner rescinded the confidentiality notice and non-publication direction. In the course of giving his reasons for decision, the examiner set out the background of the matter and some of the evidence. The examiner described the question for his consideration as being “whether the evidence given by [AJH] should be released having particular regard to the provisions of the Act and s 43 of the Act”.
The examiner went on:
“I accept that [AJH’s] safety is potentially prejudiced by the release of his evidence. In the absence of any evidence of direct threats to him, I do not accept that the mere fact of [AJH] giving evidence would put his safety at risk. But I do accept that [AJH] has genuine concerns about his safety, and that of his family, occasioned by the proposed release of his evidence.”
A little further on his reasons, the examiner said:
“I rely upon the authority of E v Chief Examiner [2010] VSC 353. The Court considered the scope of the power for the Chief Examiner to rescind a non-publication direction in similar circumstances to the present case. The Court considered that a matter of some importance was ‘that the Chief Examiner regarded the plaintiff’s evidence as relevant and important to the prosecution case’.”
The examiner concluded:
“I have considered matters relevant to the risk posed to [AJH’s] safety and reputation … and from consideration of the evidence given by him, and by other witnesses to date.
In applying the principles set out to the current facts, and based upon careful consideration of the evidence given by [AJH], I have concluded that the need to provide the relevant important evidence of [AJH] to ensure the fair trial of [named others] outweighs the personal safety and reputation issues that relate to [AJH] and his family.
In the result, having reviewed the transcript of examination, and taking into account the matters set out in ss 20 and 43 of the Act, I am satisfied that, on balance, it is appropriate to rescind the directions prohibiting publication or communication of evidence at the examination hearing for [AJH], and the confidentiality notice issued by the Chief Examiner and served on [AJH].”
It is necessary now to consider the construction of s 43 of the Act and the construction of s 20 of the Act.
The construction of s 43 of the Act
As the examiner noted, s 43 of the Act was considered in E v Chief Examiner.[2] In E v Chief Examiner, Coghlan J followed a decision of Morris J in James v The Office of Chief Examiner[3] concerning the construction of s 43 of the Act.
[2][2010] VSC 353.
[3][2006] VSC 384.
In James v The Office of the Chief Examiner, it was submitted that the Chief Examine did not have power to rescind a direction once that direction had been given pursuant to s 43(1) of the Act. The submission was made that ”The scheme of s 43 is that if a direction is made that evidence must not be published or communicated then the only method for departing from that direction is that set out in sub-ss (4) and (5) of the section”. Morris J rejected these submissions. His Honour held that, whilst sub-ss (4) and (5) of s 43 provide a means of avoiding the effect of a direction that evidence given before the Chief Examiner must not be published or communicated, those sub-sections do not provide the only means by which such a direction might be avoided. In his Honour’s view, such a direction could also be avoided by “the unmaking of the direction”, or by varying a direction by changing the exceptions to the direction as contemplated by the final words of sub-s (1).
In reaching his conclusions about s 43 of the Act, Morris J also relied upon s 41A of the Interpretation of Legislation Act 1984. Section 41A provides:
“If an Act or subordinate instrument confers power to make, issue or grant an instrument (not being a subordinate instrument) the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any) to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.”
Morris J held in James v The Office of the Chief Examiner that the power given to make a direction under s 43(1) of the Act included a power to rescind such a direction. In E v Chief Examiner, Coghlan J agreed with Morris J’s construction of s 43 of the Act.
This aspect of the construction of s 43 of the Act may have been capable of debate before James v The Office of the Chief Examiner was decided. However, I am bound to follow James v The Office of the Chief Examiner unless I am persuaded that it is clearly wrong. I am not so persuaded. Applying James v The Office of the Chief Examiner, the examiner in this case had power to rescind the non-publication direction given under s 43 of the Act.
However, the power to rescind a non-publication direction is not at large. It cannot be exercised contrary to the provisions in s 43 of the Act. For example, s 43(2) provides that the Chief Examiner must give a non-publication direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. Section 43 does not permit the Chief Examiner (or his delegate) to give a non-publication direction that must be given because of the existence of the criteria set out in sub-s (2) and then to rescind that non-publication direction where those criteria continue to exist. To do so would deprive s 43(2) of its operative effect. By contrast, sub-s (4) provides a means by which a non-publication direction might be avoided even though the circumstances set out in sub-s (2) still exist.[4]
[4]Cf Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108 (Mahoney JA).
The Chief Examiner submitted that the nature of the power to rescind a non-publication direction was different from the nature of the power to issue a non-publication direction. In amplification of this submission, it was submitted that the purposes for which a non-publication direction is given relate to the obtaining of information, whereas the purpose for which a non-publication direction is rescinded relate to the provision of evidence for use in a prosecution. It was then submitted that “That being the case, the considerations relevant to the exercise of the power to rescind are different from those relevant to the exercise of the power to give a non-publication direction, as set out in s 43(2)”.[5] In essence, the Chief Examiner submitted that s 43(2) required him to give a non-publication direction in the circumstances set out therein, but that once a direction had been given (and evidence taken), the Act permitted the Chief Examiner to balance the issues in s 43(2) with the need for (or importance of) making evidence available in a prosecution. This conclusion was said to flow from the proper construction of the Act and the decision of Coghlan J in E v Chief Examiner.[6]
[5]Paragraph 32 of the Chief Examiner’s outline of submissions dated 30 September 2011.
[6][2010] VSC 353.
The Chief Examiner’s submission must be rejected. As I have said above, such power as there is to rescind a non-publication direction cannot be exercised contrary to the provisions in s 43 of the Act. The issue of a non-publication direction is mandatory “if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence”.[7] Neither the text of the Act nor any object or purpose of the Act permits the Chief Examiner to rescind a non-publication direction where s 43 makes it mandatory for one to have been given. If the Parliament had intended any such construction, then it could have so specified in s 43. Further, there is nothing in E v Chief Examiner[8] which supports the Chief Examiner’s argument. E v Chief Examiner was a case concerned solely with the power to rescind a non-publication direction under s 43. Whilst it would be open to the Chief Examiner to regard a witness’s evidence as relevant and important to a prosecution case, as a relevant matter to consider in determining whether or not to revoke a non-publication direction under s 43, this issue cannot override the operation and proper application of s 43(2). I turn now to s 20 of the Act.
[7]Section 43(2).
[8][2010] VSC 353.
The construction of s 20 of the Act
The defendant submits that for the reasons applicable in respect of s 43, there is an implied power of the same width as that in relation to s 43 which would permit the Chief Examiner to rescind a confidentiality notice issued pursuant to s 20 of the Act if he (or his delegate) regarded a witness’s evidence as relevant and important to a particular prosecution case. Reliance is again placed on E v Chief Examiner.[9]
[9][2010] VSC 353.
Underlying the Chief Examiner’s submission is an assertion that E v Chief Examiner concerned the rescission of both a non-publication direction under s 43 and a confidentiality notice under s 20. The problem with this assertion is that whilst there may have been a confidentiality notice in E v Chief Examiner, any such confidentiality notice was not the subject of Coghlan J’s decision. There is nothing in E v Chief Examiner[10] which deals with the proper construction of s 20 of the Act. Further, and in any event, for the reasons given below, s 20 is distinguishable from s 43.
[10]Or indeed in James v The Office of Chief Examiner [2006] VSC 384.
As Morris J noted in James v The Office of the Chief Examiner, the only express provisions in s 43 that provided a means for avoiding a non-publication direction were those that required the Chief Examiner or the Chief Commissioner to make evidence available to a court that had given a certificate pursuant to sub-s (4). In such circumstances, it is not difficult to see why a court might hold that, on its proper construction, s 43 permits “the unmaking” of a relevant direction.
However, s 20 is in a different category. Unlike s 43 (which provides one basis in limited circumstances for avoiding a relevant direction), s 20 contains significantly more detailed provisions for bringing a confidentiality notice to an end. Specifically, under s 20, a confidentiality notice ceases to have effect:
(a)first, if after the conclusion of the police investigation of the organised crime offence no evidence of an offence has been obtained;[11]
(b)secondly, if after the conclusion of the police investigation of the organised crime offence evidence of one or more offences has been obtained but a decision has been made not to commence any criminal proceedings in which the evidence would be relevant;[12]
(c)thirdly, if after the conclusion of the police investigation of the organised crime offence evidence of one or more offences committed by only one person has been obtained and criminal proceedings have been commenced against that person;[13]
(d)fourthly, if after the conclusion of the police investigation of the organised crime offence evidence of one or more offences committed by two or more persons has been obtained and criminal proceedings have been commenced against all those persons;[14]
(e)fifthly, if after the conclusion of the police investigation of the organised crime offence evidence of one or more offences committed by two or more persons has been obtained and criminal proceedings have been commenced against one or more of those persons and the Chief Commissioner has been advised that no other persons will be prosecuted;[15]
(f)sixthly, if a notice is given under sub-s (8A) of s 20; or
(g)seventhly, if a period of five years[16] has expired.[17]
[11]Section 20(7)(a).
[12]Section 20(7)(b).
[13]Section 20(7)(c).
[14]Section 20(7)(d)(i).
[15]Section 20(7)(d)(ii).
[16]Or any extension given under sub-s (8F).
[17]Section 20(8C).
Sub-sections (8A) and (8B) operate where the circumstances referred to in sub-ss (2) or (3) that led to the giving of the confidentiality notice no longer apply. In such circumstances, the court or the Chief Examiner must give written notice of that fact to the person to whom the confidentiality notice was given, and upon the giving of such written notice, the confidentiality notices ceases to have effect. In other words, if the reason for giving the confidentiality notice disappears, then s 20 expressly provides for the rescission of the confidentiality notice. No such provision or mechanism exists in relation to a non-publication direction under s 43.
Section 20 is far more comprehensive than s 43 in relation to the circumstances in which a confidentiality notice ceased to have effect. The reasons for implying a relatively broad power of rescission in s 43 do not exist in relation to s 20. Of particular importance are sub-ss (8A) and (8B) which provide for a confidentiality notice to cease to have effect if the circumstances that led to the giving of the notice no longer apply. There is no mirror of these provisions in s 43. However, the fact that s 20 is more comprehensive in relation to confidentiality notices ceasing to have effect is not to say that in some circumstances, where it may be established that no confidentiality notice should ever have been given (either because of mistake or fraud or the like), that the Court (and perhaps also, in appropriate cases, the Chief Examiner) does not have the power to rescind such a notice. That said, the possible existence of such a power does not provide a basis for holding that any wider power exists.
The present case
The examiner engaged in a balancing exercise in order to determine whether the confidentiality notice and the non-publication direction should be rescinded. In arriving at his decision, the examiner concluded that the need to provide relevant important evidence to ensure the fair trial of others outweighed the personal safety and reputation issues that related to the plaintiff and his family. In so doing, the examiner misconstrued and misapplied ss 20 and 43 of the Act. Further, in so doing, the examiner does not appear to have given any consideration to his earlier conclusion (as set out in the non-publication direction made by him) that he was required to make the non-publication direction because a failure to do so may prejudice the fair trial of the plaintiff.[18]
[18]See paragraph [6] above.
As I have said above, s 20 of the Act does not permit the Chief Examiner (or his delegate) to rescind a confidentiality notice merely because of some perceived need to provide what is described as relevant important evidence. A confidentiality notice under s 20 ceases to have effect in one or some of the circumstances set out in s 20. In purporting to rescind the confidentiality notice, the examiner erred in law. While there may be other grounds upon which the Chief Examiner may rescind a confidentiality notice (for example, mistake or fraud or the like), they do not include a broad power relating to the importance or otherwise of a witness’s evidence in a prosecution. Again, if the Parliament had intended any such construction, then it could have so provided.
So far as the non-publication direction under s 43 is concerned, it (the non-publication direction) could not be rescinded if at that time the failure to have such a direction “might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be charged with an offence”.[19] The examiner’s reasons do not disclose that the examiner considered specifically whether the rescission of the non-publication direction might prejudice the safety or reputation of the plaintiff or prejudice the fair trial of the plaintiff. However, the examiner did say that he accepted that the plaintiff’s safety was potentially prejudiced by the release of his evidence. If, by accepting that the plaintiff’s safety was potentially prejudiced by the release of his evidence, the examiner was saying that the rescission of the non-publication direction might prejudice the safety of the plaintiff,[20] then the examiner was bound to reject the application to rescind the non-publication direction.
[19]Cf s 43(2) of the Act.
[20]And there is some support for this construction in the examiner’s reference to “the personal safety issues” which were said to be outweighed by “the relevant important evidence of [AJH] to ensure the fair trial of [named others]”.
On the other hand, if the examiner failed to consider whether the rescission of the non-publication direction might prejudice the safety or reputation of the plaintiff, or prejudice the fair trial of the plaintiff, then in coming to his decision, the examiner failed to take into account matters he was bound to take into account by the operation of s 43 of the Act. Whichever approach the examiner took involves error. Either there was an error of law in failing to give proper consideration to s 43(2) or there was an error of law in rescinding the non-publication order in the face of a finding which appears to suggest that the non-existence of the non-publication direction might prejudice the safety of the plaintiff.
The errors of law which I have identified appear from the reasons of the examiner. Under s 10 of the Administrative Law Act 1978, the examiner’s reasons are taken to form part of his decision and accordingly to be incorporated in the record. It follows that the plaintiff has established that the decision of the examiner on 22 July 2011 to rescind the confidentiality notice and non-publication direction involves errors of law on the face of the record. In the circumstances, the examiner’s decision of 22 July 2011 should be quashed.
Lest it be suggested that by the construction of ss 20 and 43 of the Act which I have preferred, a court hearing a prosecution might be deprived of relevant evidence, it is to be remembered that there is a mechanism under sub-ss (4) to (5) of s 43 by which such evidence might be made available to such a court.[21] On the other hand, if it is thought that the Chief Examiner (or his delegate) should have a greater power to assist in providing information for prosecutions, then the Act needs to be amended. At present, save to the extent to which I have already referred, the Act is silent in respect of such matters.
[21]As to information sharing and other permitted disclosures, see generally s 67 and s 20(6)(a)(iii) of the Act.
Finally, for the sake of completeness, I should say there is no substance in the plaintiff’s ground four. The plaintiff was not denied procedural fairness. He was given an opportunity to make submissions at a hearing. He chose not to attend the hearing, sending a four-line letter stating that he objected to his evidence being released to the public. There was no occasion to provide the plaintiff with any further opportunity to address matters.[22]
[22]The plaintiff submitted that a statement in the Examiner’s reasons that AJH was not the only witness to give evidence before the Examiner demonstrated that the defendant took into account evidence which the plaintiff could not address. This was said to be a denial of natural justice. While it is not strictly necessary for me to consider this argument, I would have rejected it on a number of grounds, not the least of which is that I am not satisfied that the Examiner took into account any specific evidence of any other person.
Conclusion
For the reasons given above, the decision of the examiner made on 22 July 2011 to rescind the confidentiality notice and non-publication direction made in respect of the plaintiff will be quashed. I will hear the parties on the appropriate form of order and any issue of costs.
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