and DF (a pseudonym) v The Queen (On the Application of the Chief Examiner)
[2014] VSCA 288
•19 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0065 | |
| DF (A PSEUDONYM) | Appellant |
| v | |
| THE QUEEN (ON THE APPLICATION OF THE CHIEF EXAMINER) | Respondent |
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JUDGES: | SANTAMARIA, BEACH and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 November 2014 | |
DATE OF JUDGMENT: | 19 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 288 | |
| JUDGMENT APPEALED FROM: | [2014] VSC 119 (Dixon J) | |
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CRIMINAL LAW – Conviction – Contempt – Contempt of the Chief Examiner – Custody order – Amendment to custody order – Power to amend custody order subject to same limitations as those applicable to the making of the order – Whether amended custody order valid – Whether order directed to a specified member of the police may be executed by another member of the police – Major Crime (Investigative Powers) Act 2004, ss 15, 18 and 49 – Police Regulation Act 1958, s 20 – Interpretation of Legislation Act 1984, s 41A – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Holt SC | Victoria Legal Aid |
| For the Respondent | Mr S P Donaghue QC with Mr A Imrie | Office of the Chief Examiner |
SANTAMARIA JA
BEACH JA
KYROU JA:
Introduction
On 8 May 2014, the appellant was convicted by a judge of the Trial Division of contempt of the Chief Examiner pursuant to s 49 of the Major Crime (Investigative Powers) Act 2004 (‘the Act’). The appellant was then sentenced to a term of imprisonment of five months.[1] In the proceeding below, the Crown conceded that a valid custody order under s 18 of the Act was an essential element to be established before the appellant was liable to be dealt with for the offence of contempt of the Chief Examiner pursuant to s 49 of the Act. In the proceeding below, the appellant contended that the custody order relied upon by the Crown to establish this element was not valid. The judge rejected this contention.[2]
[1]R (on the application of the Chief Examiner) v DF (No 2) [2014] VSC 213.
[2]R (on the application of the Chief Examiner) v DF [2014] VSC 119 (‘Reasons’).
The appellant appeals against his conviction for contempt of the Chief Examiner. The appellant’s sole ground of appeal is in the following terms:
The learned trial judge erred in deciding that the appellant had been brought before the Chief Examiner pursuant to a valid custody order.
Particulars
(a)The appellant was brought before the Chief Examiner on 21 May 2013 pursuant to a custody order issued under s 18 of the Major Crime (Investigative Powers) Act 2004.
(b)The learned trial judge correctly held that a valid custody order is an essential element of the offence of contempt pursuant to s 49 of the Major Crime (Investigative Powers) Act 2004.
(c)The custody order was amended on 20 May 2013 to substitute the name of the police officer into whose custody the appellant was to be delivered with the name of another police officer.
(d)The learned trial judge erred in holding that s 18 of the Major Crime (Investigative Powers) Act 2004 permitted the custody order to be amended in that way.
(e)The custody order in its amended form was invalid and the appellant could not be guilty of contempt.
The respondent relies on the following ground in its notice of contention:
Section 18(2) of the Major Crime (Investigative Powers) Act 2004, when read with section 41A of the Interpretation of Legislation Act 1984 and/or section 20 of the Police Regulation Act 1958, authorised the Chief Examiner to amend the custody order made on 8 May 2013 by substituting the name of one member of the police force for that of another member of the police force.
Background facts
The relevant background facts may be briefly stated as follows.[3] On 15 April 2013, King J made a coercive powers order pursuant to s 8 of the Act for a period of 12 months. The coercive powers order was made in relation to two organised crime offences.[4]
[3]Adapting the judge’s description of the facts: Reasons [1]–[15].
[4]The expression ‘organised crime offences’ is defined in s 3 of the Act.
On 8 May 2013, the Chief Examiner made a custody order pursuant to s 18 of the Act in respect of the appellant. The applicant for the custody order was Detective Senior Sergeant Stephen Pucar. The order was directed to the General Manager of the Victorian prison where the appellant was incarcerated, and required that the appellant be delivered into the custody of Detective Senior Sergeant Pucar to be brought before the Chief Examiner on 21 and 22 May 2013 at the County Court in Melbourne to give evidence.
A copy of the custody order was also directed to the Operations Manager for Corrections Victoria to allow for the appellant to be transported from the prison to the County Court. Three confidentiality notices were issued under s 20 of the Act directed to the appellant and each manager respectively. The order and notices were duly served on 13 and 14 May 2013.
However, Detective Senior Sergeant Pucar suffered a serious elbow injury requiring surgery and was not fit for duties on 21 and 22 May 2013.
On 20 May 2013, Detective Inspector Raymond McLeod-Dryden applied to the Chief Examiner to amend the custody order to name him as the nominated person, allowing the appellant to be delivered into his custody, because of the inability of Detective Senior Sergeant Pucar to execute the custody order. The Chief Examiner granted the application and amended the custody order by inserting the name of Detective Inspector McLeod-Dryden in place of the name of Detective Senior Sergeant Pucar. The amendment of the custody order was handwritten, signed and dated by the Chief Examiner, who considered that he was entitled to amend the order as it had not then been executed.
The amended custody order was served on the Operations Manager for Corrections Victoria but could not be served on either the appellant or the General Manager of the prison. Early on the morning of 21 May 2013 acting under the original order, the General Manager of the prison released the appellant into the custody of prisoner transport personnel from the Office of Corrections. The appellant was transported by secure prisoner transportation bus from the prison to the holding cells at the County Court at Melbourne.
While he was being transported, the Office of the Chief Examiner learned that neither the appellant nor the prison General Manager had been served with the amended custody order. A copy of the amended custody order was faxed to the prison General Manager who notated the faxed copy with a memorial of his receipt of it and faxed it back. When the appellant arrived at the Melbourne County Court, he was served with the custody order in its amended form and provided with some explanation of the amendment and the reasons for it. At all times prior to the service of the amended custody order the appellant remained in the lawful custody of the State as an incarcerated prisoner.
The appellant was released into the custody of Detective Inspector McLeod-Dryden in the following circumstances. Detective Inspector McLeod-Dryden was assisting the Chief Examiner with the conduct of the examination, sitting at the bar table before the Chief Examiner. When the appellant’s legal representative arrived at the hearing room, Detective Inspector McLeod-Dryden was present. The Chief Examiner, who had been dealing with preliminary issues, then announced that arrangements would be made for the appellant to be brought into the hearing room. Detective Inspector McLeod-Dryden then left the hearing room.
Four prison officers escorted the appellant at all times and he was under their control until surrendered to the Chief Examiner in the examination room. When the appellant was brought to the hearing room, the Chief Examiner directed that he be placed in the dock. The Chief Examiner directed that the prison officers be permitted to remain present in the hearing room, which they did. At all times, the appellant remained in a locked room in the presence of the prison officers. Detective Inspector McLeod-Dryden returned to the hearing room during this process.
The Chief Examiner then recited the circumstances of the making of the original custody order, the unavailability of Detective Senior Sergeant Pucar and the application to amend the custody order that he had granted. The Chief Examiner stated that the amended custody order required that the appellant be delivered into the custody of Detective Inspector McLeod-Dryden, who was identified in the hearing room. The Chief Examiner expressed his opinion that the custody order had been partially executed and invited submissions from the appellant’s legal representative before the process of completing execution of the custody order was undertaken.
After a brief adjournment, the appellant’s legal representative informed the Chief Examiner that the appellant did not concede the validity of the process that was occurring but he had no instructions to put any submission to the Chief Examiner. The appellant was then formally transferred into the custody of Detective Inspector McLeod-Dryden and moved from the dock to sit at the bar table. At this point the amended custody order was fully executed. The Chief Examiner remarked that as the appellant was, by court order, incarcerated, it was appropriate that the prison officers remain in the hearing room for the duration of the examination and they did so.
The Chief Examiner then explained at length the procedure that was to be followed and the appellant’s rights and obligations. This explanation included informing the appellant that he was required under the Act to take an oath or affirmation and answer questions when required to do so. The Chief Examiner informed the appellant of the penalties provided by the Act for refusal to answer questions and of the powers of the Chief Examiner to charge him with contempt, the circumstances in which the power to charge with contempt could be used, and the procedures that applied if that power was exercised.
The appellant took the oath and then refused to answer any and all questions put to him. The Chief Examiner stood down the examination and a certificate of charge and arrest warrant pursuant to s 49(2) of the Act were prepared.
When the examination reconvened, the appellant was charged with contempt and served with the certificate of charge and arrest warrant. The appellant was offered a final opportunity to answer relevant questions, but he again failed or refused to answer any and all questions put to him and the examination was concluded.
The relevant legislative provisions
Section 49(1) of the Act relevantly provides:
(1)A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person —
(a) …; or
(b)being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination; or
(c) ...
Section 18 of the Act relevantly provides:
(1)This section applies if a coercive powers order is in force in respect of an organised crime offence.
(2)If a person is held in a prison or police gaol, a police officer may apply to the Supreme Court or the Chief Examiner for an order that the person be delivered into the custody of the police officer for the purpose of bringing the person before the Chief Examiner to give evidence at an examination.
(3)…
(4)If the application under subsection (2) is made to the Chief Examiner, section 15(3), (4), (5), (6) and (10) apply as if a reference to—
(a)a summons were a reference to an order referred to in subsection (2); and
(b)issuing a summons were a reference to making an order referred to in subsection (2).
(5) An order made on application under subsection (2)—
(a) must be in the prescribed form; and
(b)must include a statement that if the person who is the subject of the application is under the age of 16 years at the date of issue of the order, the order is of no effect and the person is not required to attend the examination; and
(c)if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be).
(6) …
(7)At the cessation of giving evidence at an examination before the Chief Examiner or on release from compliance with the order by the Chief Examiner, the police officer must deliver the person who is the subject of the order to the place of detention at which the person was held or detained at the time of the application for the order.
(8)If an order is made under this section, sections 12C, 13, 16, 37(5) and 49 apply as if a reference in those sections to a witness summons issued under section 14 or 15 included a reference to an order under this section.
Section 15 of the Act provides for the issuing, by the Chief Examiner, of the witness summons referred to in s 49(1) of the Act. However, where a witness is already held in custody, s 49 falls to be applied as if the reference to ‘a witness summons’ in the section is a reference to a custody order.[5]
[5]See s 18(8) of the Act. See further DPP v Debono [2013] VSC 408 [16] (Kyrou J).
At the time of the events relevant to this proceeding, s 20 of the Police Regulation Act 1958 provided:
Any process or any warrant order or command of any court or any coroner under the Coroners Act 2008 or any board tribunal commission or other body (whether constituted by one or by more than one person) established by or under any Act or any member or officer of any such board tribunal commission or body directed delivered or given to any member of the force may be executed and enforced by any other member of the force or his assistants, and every such last-mentioned member of the force and his assistants shall have the same rights powers and authorities for and in the execution of such process warrant order or command, as if the same had been originally directed to him or them expressly by name.[6]
[6]Section 20 of the Police Regulation Act 1958 was repealed subsequent to the events the subject of this proceeding. The substance of that provision is now to be found in s 56 of the Victoria Police Act 2013.
As to the power of the Chief Examiner to amend the custody order, s 41A of the Interpretation of Legislation Act 1984 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.
The issue in this appeal
The appellant does not contest that s 41A of the Interpretation of Legislation Act empowered the Chief Examiner to amend the custody order. However, the appellant submits that s 18(2) of the Act only empowered the Chief Examiner to order that the appellant be delivered into the custody of the member of the police force who applied for the custody order. In support of this submission, the appellant relies upon the use of the words ‘the member’ in the phrase ‘into the custody of the member’ in s 18(2).
The appellant then contends that, while there is a power of amendment under s 41A of the Interpretation of Legislation Act, the power is only exercisable subject to the same limitations as existed in relation to the original making of the custody order. According to the appellant, s 18(2) of the Act contains a limitation that must be satisfied for any amendment under s 41A of the Interpretation of Legislation Act to be valid, namely, that the police officer into whose custody the person is to be delivered must be the officer who applied for the order. The limitation was said to mean that a custody order cannot be amended so as to provide for the person to be delivered into the custody of a member of the police force other than the original applicant for the custody order. The judge rejected that contention. It is that issue upon which this appeal turns.
Analysis
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[7] the High Court said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[8]
[7](2009) 239 CLR 27.
[8]Ibid 46–7 [47] (citations omitted).
More recently, in Thiess v Collector of Customs,[9] the High Court, in approving an earlier statement made in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[10] said:
Statutory construction involves attribution of meaning to statutory text. As recently reiterated:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.[11]
[9](2014) 250 CLR 664.
[10](2012) 250 CLR 503, 519 [39].
[11]Ibid 671 [22].
There can be no doubt that the construction of a statutory provision must begin and end with the text of the provision itself. However, as the High Court has also said:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[12]
[12]Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].
It may be accepted for present purposes that, in making the original custody order, the Chief Examiner’s jurisdiction was limited to making a custody order that provided for the appellant to be delivered into the custody of the member of the police who applied for the order. In supporting this construction, the appellant submitted that such a construction gave effect to an evident purpose of s 18 of the Act that the Chief Examiner[13] have close control of the custody order by requiring the Chief Examiner[14] to name and know the identity of the police officer into whose custody the relevant witness was to be delivered. However, even accepting such a purpose is evident from either the section and/or the Act, it seems to us that the same purpose would equally be fulfilled by a construction that permits of an amendment so as to name a different, but also identified, member of the police force.
[13]Or, in the case of an order made by the Supreme Court, the Supreme Court.
[14]Or, as appropriate, the Supreme Court.
While an amendment to the custody order was sought in this case, we note the then existence of s 20 of the Police Regulation Act 1958. This section, on its terms, appears to contemplate the execution of an order such as the custody order by a different member of the police force from the member named in the custody order. Arguably, the custody order could have been executed by Detective Inspector McLeod-Dryden (the member who applied for the amendment) without the need for any amendment – although plainly that is not what occurred in the present case.
In submitting that the amendment made to the custody order was valid, the Crown referred to sub-s (7) of s 18 of the Act. That sub-section requires ‘the member of the police force’ to deliver the witness back to his or her place of detention at the conclusion of the examination before the Chief Examiner. The Crown contends that when one considers the operation of s 18(7), in the context of s 20 of the Police Regulation Act, the appellant’s submission that the member of the police force into whose custody the witness is delivered must be identical to the person who applied for the original custody order cannot stand.
In holding that the amendment of the custody order was within the power of the Chief Examiner, the judge said:
The application to amend the order was made by the member into whose custody the examinee would be released under the terms of the amended order. In context, the same conditions or limitations that [the appellant] identifies as constraining the original exercise of the statutory power … relevantly applied when the power to amend the custody order was exercised. That is, the applicant for the amendment was the member nominated by the amended order to receive custody of the examinee.[15]
[15]Reasons [44].
It is within this part of the judge’s reasoning that we think the answer to the present problem lies. We agree with the judge that the amendment made was not beyond the power of the Chief Examiner. The original order was applied for by the member of the police force into whose custody the appellant was ordered to be delivered. The amendment was similarly applied for by the member of the police force into whose custody the appellant was to be delivered. In that sense, the custody order as amended was ultimately applied for at the time of the amendment by the member of the police force ultimately named in the order as the person into whose custody the appellant was to be delivered.
In our opinion, the appellant’s submissions summarised at [24] above mischaracterise the nature of the limitation in s 18(2) of the Act for the making of a custody order which also applies to an amendment of the order by virtue of s 41A of the Interpretation of Legislation Act. The limitation is not, as contended by the appellant, that the applicant for the custody order must remain named in any amendment to the order as the officer into whose custody the relevant person is to be delivered. Rather, the limitation is that the police officer who requires the relevant person to be delivered into the officer’s custody must be the applicant for the legal instrument that achieves that result. In the case of an original custody order made under s 18(2) of the Act, the police officer into whose custody the relevant person is to be delivered must apply for the order. In the case of an amendment to an existing custody order which substitutes another police officer into whose custody the relevant person is to be delivered, that officer must apply for the amendment.
Our characterisation of the nature of the limitation in s 18(2) of the Act is not inconsistent with the language of that provision, the relevant statutory context or the purpose of the Act. The Chief Examiner determines who is to be given custody of the relevant person and controls the process by which the person is examined. The personal safety of the relevant person and the confidentiality of the process are not adversely affected. Given that the Chief Examiner could revoke a custody order which names police officer A and make a new custody order on the application of officer B which names officer B, we see no reason why, in an appropriate case, the Chief Examiner cannot amend the original custody order on the application of officer B to substitute officer B for officer A.
In the present case, there was compliance with the limitation in s 41A of the Interpretation of Legislation Act because the police officer into whose custody the appellant was delivered, Detective Inspector McLeod-Dryden, was the officer who applied for the amendment to the original custody order.
Conclusion
For the above reasons, the appeal must be dismissed.
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