CDirector of Public Prosecutions v Bowen
[2024] VCC 2114
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00698
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| VAUGHAN BOWEN |
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JUDGE: | Her Honour Judge Todd | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2024 | |
DATE OF RULING: | 21 June 2024 | |
CASE MAY BE CITED AS: | CDPP v Bowen | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2114 | |
RULING
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Subject:Criminal Law – Ruling
Catchwords: Insider trading; application for pre-trial examination; express and implied powers to order preliminary examination; right against self-incrimination.
Legislation Cited: Corporations Act 2001 (Cth) ss 1043A(1), 1311(1), 184, 1043A(2) Volume 7, Schedule 3;Criminal Procedure Act 2009 (Vic) ss 198, 198(2)(e), 198(4); County Court Act 1958 (Vic) s 36A, 36A(1), 36A(2); Evidence Act 2008 (Vic) ss 128, 128(4)(b), 128(7), 128(5); Australian Securities and Investments Commission Act 2001 s 19; Justice Legislation Miscellaneous Amendment Bill 2018; Crimes (Criminal Trials) Act 1999 s 11.
Cases Cited:Pelechowski v The Registrar of Court of Appeal (1999) 198 CLR 435; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; R v Ronen [2004] NSWSC 1282; Harvey & Anor v County Court (Vic) and Others (2006) 164 A Crim R 62; R v Jacobson (Ruling No 1) (2014) 103 ACSR 386; R v Basha (1989) 39 A Crim R 33; Dietrich v The Queen (1992) 177 CLR 292; Director of Public Prosecutions (Vic) v Denysenko [1998] 1 VR 312; (1997) 91 A Crim R 313; Williams v Director of Public Prosecutions (Vic) (2004) 151 A Crim R 42; Grassby v The Queen (1989) 168 CLR 1; R v Edwards (2012) 44 VR 114; X7 v Australian Crime Commission (2013) 248 CLR 92; Villan v State of Victoria [2021] VSC 354; State of Victoria v Villan [2022] VSCA 106; Gilbert Gedeon v R (2013) 237 A Crim R 326.
Ruling: Application for pre-trial examination refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ben Ihle KC & Julia Wang | CDPP |
| For the Defendant | Neil Clelland KC, Ruth Shann SC and Chadwick Wong | Baker McKenzie |
For Ms Jegathesan | Conor O’Bryan | Aptum Legal |
HER HONOUR:
Introduction
1In this case, I must decide whether to grant the prosecution’s application for an order requiring a witness to attend Court in advance of the trial and answer questions on oath.
Background
2Mr Bowen is charged with two offences of ‘insider trading’ contrary to ss 1043A(1) and 1311(1) of the Corporations Act2001 (Cth) (‘Corporations Act’). ‘Insider trading’ involves, relevantly, the acquisition or disposal of company shares[1] while in possession of ‘inside information’.
[1]And other ‘Division 3 financial products’.
3A trial is listed to commence on 30 October 2024.
4An indictment has been filed. The proposed witnesses the prosecutor intends to call are listed on the final page. One of those witnesses, Ms Ashe-Lee Jegathesan has not provided a statement.
5The prosecution case, put very simply, is this. It is alleged that Mr Bowen came into possession of inside information between about 1:11 pm and 1:55 pm on 4 June 2019, and, shortly after receipt of the information, at 1:56 pm, he used the information by instructing his share broker to sell a large number of his shares in the Vocus Group Limited (‘Vocus’).[2]
[2]ACN 084 115 499.
6By 4:32 pm shares valued in excess of $25m had been sold on Mr Bowen’s instructions.
7The prosecution alleges that these events coincided with the accused sharing lunch with Ms Jegathesan in a city restaurant. The two were friends. Ms Jegathesan was also the General Counsel and Company Secretary of Vocus.
8The 4th of June 2019 was a significant day for Vocus. A ‘non-binding indicative proposal’ made by a Swedish private equity group, ‘EQT AB Group’ (EQT), to acquire Vocus had been revealed to the market some days before. A due diligence process had commenced. The market was duly advised of this, and the Vocus share price had gone up by about 25 per cent in reaction to this news.
9Mr Bowen’s lunch booking on 4 June 2019 was for 12:30 pm. Elsewhere, by about 12:00 pm the same day, representatives of EQT informed representatives of Vocus that the acquisition would not proceed.
10This news travelled fast. By 6:50 pm the market had been formally notified. But other events unfolded during the afternoon. According to the prosecution case, Ms Jegathesan received a missed call from the CEO of Vocus at 12:55 pm. At 1:11 pm she returned this call. By 1:30 pm a company meeting had commenced on Zoom; Ms Jegathesan joined the meeting. The news about the proposed deal collapsing was conveyed in this call, or perhaps the earlier call at 1:11 pm. By whatever means, it is clear that by 1:50 pm Ms Jegathesan knew of the outcome, and at 1:56 pm her lunch companion, the prosecution says, instructed his broker to sell his shares.
11The restaurant billing record shows that at 3:00 pm tea and coffee was ordered at Mr Bowen’s table.
12At 6:50 pm Vocus issued an ASX announcement to the market indicating that EQT had decided not to acquire Vocus.
13Once the market reopened, a 14 per cent fall in the Vocus share price was registered. After some fluctuation, it closed 17.7 per cent lower than the previous day.
14Mr Bowen denies these allegations; he will challenge the prosecution case. Among other matters, he puts in issue ‘whether and when [he] was with Ms Jegathesan on 4 June 2019.’[3]
[3]Defence response, Mr Bowen, dated 17 October 2023 [4].
15As I have already noted, Ms Jegathesan has not provided a statement; the evidence I have just referred to is sourced either in other witnesses’ statements or in objective records of phone calls, and the restaurant billing record.
16I understand that the prosecution case will be that the only reasonable inference that could be drawn from the coincidence of Ms Jegathesan’s participation in company meetings, and the instructions to sell shares given by Mr Bowen is that Mr Bowen came into possession of ‘inside information’ between about 1:11 and 1:50 pm over lunch with Ms Jegathesan and, in reliance on that information, disposed of his shares, in circumstances when that information was not generally available to the market and was ‘inside information’.
17Much turns then on what happened, or did not happen, over lunch. The evidence suggests a table for two. It appears Ms Jegathesan was there at some stage. The position she occupies in the narrative of the prosecution case is exclusive and central.
18There are a number of pre-trial applications to be determined before a jury is empanelled. At this stage, I understand Mr Bowen will at least make application to stay the trial and application to set aside a tendency notice.
19The prosecution now makes application, pursuant to s 198(2)(e) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’ or ‘the Act’),[4] or, in the alternative, by invoking the Court’s implied power, for an order for the pre-trial examination of Ms Jegathesan.
[4](Vic).
20Mr Bowen opposes the application.
21I granted leave for Ms Jegathesan to be heard on the application; Mr O’Bryan of counsel appeared to argue, among other things, that it was not in the interests of justice that an order be granted, given his client’s wish to exercise her right against self-incrimination.
22It is uncontroversial that the outcome of this application, and its consequences, ought be known before the other pre-trial applications are ruled on.
The issues
23The issues I must decide are these:
(a) Does this Court have power, express or implied, to order that Ms Jegathesan attend Court for preliminary examination by the prosecution?
(b) More specifically:
(i)does the Court have express power pursuant to s 198(2)(e)[5] to order the preliminary examination of Ms Jegathesan?;
[5]Ibid.
(ii)was the express, statutory form of this power removed either by the passage of the Criminal Procedure Act in 2009 or by the amendment to s 198 in 2018?;
(c) Does the Court have implied power arising from the terms of the conferral of jurisdiction in s 36A of the County Court Act 1958 (‘County Court Act’)?[6]
(d) If the Court does have either express or implied power (or both) should it be exercised in the way sought by the prosecution in this case?
(e) Am I satisfied, if such power exists, that it is appropriate[7] that the evidence of Ms Jegathesan be taken before Mr Bowen’s trial?
(f) More specifically:
(i)do the interests of justice require[8] Ms Jegathesan to attend for preliminary examination and/or;
(ii)am I satisfied that it is in the interests of justice[9] that Ms Jegathesan’s evidence be taken in a preliminary examination?; and
(iii)does a certificate pursuant to s 128 of the Evidence Act2008 (‘Evidence Act’) confer sufficient protection to Ms Jegathesan such that her right against self-incrimination is preserved, or not abrogated in an unacceptable way?
[6](Vic).
[7]Criminal Procedure Act (n 5) s 198(2)(e).
[8]Evidence Act 2008 (Vic) s 128(4)(b).
[9]Criminal Procedure Act (n 5) s 198(4).
What is it necessary to decide
24The conclusion that I reach in relation to the interests of justice test on this application to some degree makes it unnecessary for me to decide the questions about whether this power exists.
25However, I am conscious of the possibility that Ms Jegathesan’s status may change, and the parties should know what it is the Court would authorise in that event.
Procedural history and Ms Jegathesan’s role in the case
26I pause here to briefly set out a procedural history of the case and Ms Jegathesan’s relationship to it.
27Ms Jegathesan has not been charged in relation to the events that occurred on 4 June 2019.
28It is clear that at an earlier stage, she was considered a suspect. Reference has been made to the prosecution case (potentially) tending to prove her liability for offences pursuant to ss 184 or 1043A(2) Corporations Act. Both offences carry penalties of 15 years’ imprisonment.[10]
[10]Corporations Act 2001 (n 1) (Volume 7, Schedule 3).
29On 31 January 2020, Ms Jegathesan agreed to participate in a voluntary interview with ASIC investigators. ASIC had power to, but did not, invoke its compulsory procedure under s 19 of the Australian Securities and Investments Commission Act2001 (Cth) to compel Ms Jegathesan to participate in an examination.
30On 21 October 2021 ASIC requested Ms Jegathesan provide a statement. She declined to do so.
31On 10 March 2022, ASIC applied to the Melbourne Magistrates’ Court for an order for the compulsory examination of Ms Jegathesan pursuant to s 104 Criminal Procedure Act. The Order was granted, but subsequently set aside on the basis that it was not in the ‘interests of justice’ to compel Ms Jegathesan to answer questions that may cause Ms Jegathesan to incriminate herself. The prosecution did not seek review of this decision.[11]
[11]Submissions on behalf of Ms Jegathesan dated 7 June 2024 [11].
32Ms Jegathesan has consistently maintained that she would be willing to provide a statement and give evidence in these proceedings if granted an immunity from prosecution.
33In support of this application, the prosecution filed the affidavit of Mr Andrew Doyle, Assistant Director of the CDPP.[12] Included is recent correspondence between ASIC, the CDPP and Ms Jegathesan.
[12]Exhibit No PA on the application.
34A letter from ASIC to Ms Jegathesan dated 6 May 2024 indicates that consideration has been given to the possibility of granting Ms Jegathesan an immunity from prosecution, but further consideration of this is conditional upon Ms Jegathesan participating in an interview with ASIC and providing an ‘induced statement’.
35ASIC undertakes not to use the ‘induced statement’ in a prosecution of Ms Jegathesan. Further consideration of granting immunity will not be given in the absence of such a statement. Ms Jegathesan’s lawyers have informed ASIC that she is not willing to provide a statement in the absence of such immunity.[13]
[13]Ibid and Annexure AJD-23.
36In the context of this stalemate, the prosecution applies to the Court for an order that Ms Jegathesan attend Court and answer questions under oath prior to trial. Mr Bowen and Ms Jegathesan both submit the Court has no power to make such an order. As I have already noted, Ms Jegathesan foreshadows that if she is called as a witness, she will exercise her right against self-incrimination and refuse to answer questions in court.
The power to order preliminary examination of Ms Jegathesan
37Mr Ihle KC, who appears for the Commonwealth Director, submitted that the power to make an order of the kind sought is sourced both in the plain terms of s198(2)(e) of the Criminal Procedure Act (‘the express power’), but is also found in the implied power the County Court enjoys sourced in s 36A of the County Court Act (‘the implied power’).
38Pausing there, to be clear, what the prosecution seeks is not the pre-recording on tape of evidence to be played to the jury at trial, but the preliminary examination of Ms Jegathesan, described by Mr Ihle variously as a process of ‘revealing’ or ‘discovering’ the evidence she would give once before a jury. This characterisation of the procedure was unchallenged. In the course of argument, I did not hear the accused or Ms Jegathesan argue that what was sought by the prosecution amounted to impermissible ‘investigation’.
39Mr Clelland KC, who appears for Mr Bowen, argued that the express power, once contained in s 198 of the Criminal Procedure Act, was removed by the passage of the Justice Legislation Miscellaneous Amendment Bill in 2018.[14]
[14]Explanatory Memorandum, Justice Legislation Miscellaneous Amendment Bill 2018 (Vic), see Clause 30.
40Mr O’Bryan, who appears for Ms Jegathesan, argued that this express power was removed by the legislature earlier still, in 2008, with the passage of the Criminal Procedure Act.
41Both Mr O’Bryan and Mr Clelland argued that applications pursuant to s 198 of the Criminal Procedure Act in its current form are confined to applications for the pre-recording of the trial evidence of a witness upon the application of either prosecution or defence, and no longer contemplates the use which the prosecutor now seeks to invoke.
42About implied power, both Mr Clelland and Mr O’Brien argued that the County Court, as an inferior Court, enjoys only very limited implied powers. Implied power, they argued, must be carefully distinguished from the inherent power of a superior Court. They argued that any implied power that an inferior Court, in this case the County Court, possesses, is confined to, and derived by implication from, the statutory provisions conferring particular jurisdiction.[15] In this case, this is in the specific terms of s 198 of the Act, which then draws the question back to whether there is power in the current version of s 198.
[15]Pelechowski v The Registrar of Court of Appeal (1999) 198 CLR 435 [39] (Dawson J).
43The arguments about s 198 advanced by Mr Clelland and O’Bryan require me to consider the legislative history of this section of the Act. This history, it is argued, reveals the current content and purpose of the section, and any ordinary reading of the section that is inconsistent with the purpose of the section, in its historical context, ought be rejected.[16]
[16]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [14].
44This argument, that is, that the power to order a prosecution witness attend for preliminary examination was removed at least in 2018 (and perhaps before) is made necessary in the context of three decided cases where power to make such an order was exercised in both superior and inferior Courts.
The cases where orders were granted
45Briefly, in the 2004 case of R v Ronen (‘Ronen’)[17] the Commonwealth Director sought pre-trial examinations of two witnesses, a payroll clerk and a chartered accountant, in the context of a trial for conspiracy to defraud the Taxation Commissioner. Justice Whealey in the Supreme Court of New South Wales identified the “long acknowledged” power of the courts to regulate and control criminal proceedings and “the fundamental obligation cast on the Court to ensure that a fair trial is held”, to permit the Commonwealth DPP to examine the two witnesses before trial.[18]
[17][2004] NSWSC 1282.
[18]Ibid [36].
46In the case of Harvey & Anor v County Court (Vic) and Others (‘Harvey’)[19] Justice Hollingworth was sitting in judicial review of a decision of the Chief Judge of the County Court. The Chief Judge had ordered the pre-trial examination pursuant to s 11 of the Crimes (Criminal Trials) Act1999 (‘CCTA’) of two journalists who had refused to provide statements in the trial of a public servant, for communicating confidential information to unauthorised persons (the journalists). Her Honour found the s 11 power of the CCTA was not confined to applications by the accused, and noted that the power to order a ‘Basha’ hearing came from the Court’s inherent[20] power (I will return to this form of expression), to prevent unfairness in a trial. She also referred to “sensible case management considerations”[21] before concluding that the Chief Judge had not fallen into jurisdictional error of law in making the orders.
[19](2006) 164 A Crim R 62.
[20]Ibid [21].
[21]Ibid [83].
47The Criminal Procedure Act came into force in 2009, and it was the original, 2009 iteration of s 198 that Justice Kaye (as he then was) considered in the case of R v Jacobson(Ruling No 1).[22] In that case, his Honour made orders for the pre-trial examination of two witnesses on the application of the prosecution. The context was the prosecution of an accused for offences under the Corporations Act; the prosecution sought pre-trial examination of the accused’s daughter and son in law, both of whom had previously been dealt with for related offences.
[22](2014) 103 ACSR 386 (Kaye J).
48In granting the orders, Justice Kaye found that s 198(2)(a) and (b) allowed the prosecution to obtain an order for the taking of evidence from a witness which might not ultimately be admitted at trial.[23] Elsewhere, his Honour said:
I note that 198(2)(a) and (b) each contemplate situations which, at the least, would ordinarily give rise to an entitlement of an accused to a “Basha” inquiry.[24] [emphasis added].
[23]Ibid [44].
[24]Ibid [43].
49His Honour noted that courts, in the exercise of the power under s 198, should be alert to the potential misuse of the section for investigative purposes sought by “either side”. [25] Or, he continued, for “either party” to explore, at large, matters that are extraneous to the issues which are in dispute in the trial.[26]
[25]Ibid [46].
[26]Ibid [45].
Is there express power in s 198?
50These decisions provide the backdrop for the arguments advanced by Mr Bowen and Ms Jegathesan that the power once found in s 198, or its predecessor s 11 of the CCTA, has now, by inference, been removed and confined to the ‘accused only’ application codified in s 198B of the Act.
51To deal with those arguments, I must briefly set out the legislative history of s 198.
52The current section is in the following terms:
Order for taking evidence from a witness before trial
(1) At any time except during trial, a party to a criminal proceeding may apply to the court for an order under this section that the evidence (including cross-examination and re-examination) of a person be taken at a time and place fixed by the court.
(2) An application may be made under subsection (1) only if—
* * * * *
(c) it is reasonably anticipated that the person will be unavailable to give evidence at the trial of the accused; or
(d) the parties agree that the evidence of the person should be taken before the trial of the accused; or
(e) for any other reason the court considers that it is appropriate that the evidence of the person should be taken before the trial of the accused.
(3) An application under subsection (1) must state the grounds on which an order is sought.
(4) The court must not make an order referred to in subsection (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.
(5) An order referred to in subsection (1) may include a direction that the evidence of the person is to be given or recorded in a specified manner in accordance with the Evidence (Miscellaneous Provisions) Act 1958 .
Note
Part VI of the Evidence (Miscellaneous Provisions) Act 1958 provides for the recording of evidence.
53The procedure that allows an accused to conduct preparatory cross-examination originates at common law in the case of R v Basha.[27] The Court’s power to order a Basha hearing derived from its power to regulate and control proceedings, including the manner in which evidence is taken, and to prevent unfairness in a criminal trial.[28]
[27](1989) 39 A Crim R 33 (‘Basha’).
[28]Ibid; Harvey (n 20) 67 [21]; Dietrich v The Queen (1992) 177 CLR 292, 364.
54Section 11 of the Crimes (Criminal Trials) Act,[29] now repealed, was introduced with the intention of replacing the use of the Basha procedure.[30] Section 11 of the CCTA required that in making the order, the court must be satisfied that it is in the interests of justice to do so.[31] This was the section in force at the time of Justice Hollingworth’s decision in Harvey.
[29]1999 (Vic) as repealed by Criminal Procedure Act 2009 (Vic) s 368, as enacted (‘CCTA’).
[30]Explanatory Memorandum, Criminal (Criminal Trials) Bill 1999 (Vic), clause 11.
[31]CCTA (n 30) s 11(4).
55The CCTA was repealed on the enactment of the Criminal Procedure Act in 2009. According to the explanatory memorandum,[32] s 198 of the Criminal Procedure Act was based on section 11 of the CCTA. It also extended the provision to include reference to witnesses who are likely to be unavailable at trial, in cases where the parties agree, or ‘where for any other reason the court considers it to be appropriate’. The explanatory memorandum makes reference to the section providing greater flexibility to pre-record evidence.[33]
[32]Explanatory Memorandum Criminal Procedure Bill 2008 (Vic).
[33]Ibid clause 198.
56It is while this form of s 198 was in force that Justice Kaye ordered the preliminary examination of the daughter and son-in-law of the accused in Jacobson.
57The final change to the provision was made on the passage of the Justice Legislation Miscellaneous Amendment Act2018.[34] Sub-sections (2)(a) and (b) of section 198 were repealed, and new sections 198A, 198B and 198C were inserted.
[34](n 15).
58Sub-sections (2)(a) and (b) were in the following terms:
(2) An application may be made under subsection (1) only if—
(a) the person was not available to be examined as a witness at the committal hearing; or
(b) a statement or transcript from the person was not included in a hand-up brief served on the accused under Part 4.4; or (…)
59Section 198A relates to witnesses in certain sexual offence cases and is not here relevant. Section 198B which was introduced to codify the Basha procedure, applies only to an accused person, (as opposed to ‘a party’ in s 198) and can be invoked both before and after the commencement of trial. Section 198B imposes a more stringent test for an accused seeking a preliminary cross examination. Section 198C expressly abolishes the common law Basha procedure.
60Mr Bowen argued that given the repeal of sub-sections (2)(a) and (b) of s 198, and the reservation of s 198B for the exclusive use of the accused, there is no longer any express power that allows the Court to order preliminary examination on application by the prosecution.
61Further, he argued that reading the current s 198 as to permit application for preliminary examination by the prosecution produces the ‘absurd’ result that the accused could apply for a ‘Basha-type’ hearing through s 198 and thereby avoid the stringency of the additional tests now set out in s 198B.
62Further, he argued, by reference to the explanatory memorandum accompanying the change in 2018, that any residual operation of the current s 198 is for the purpose of pre-recording of witness’ evidence only. He argued that s 11 of the CCTA was intended to replace the Basha inquiry process and to extend access to that process to the prosecution, but that the s 198B codification of the ‘Basha’ hearing in 2018 now means preliminary questioning is available exclusively to an accused, and under no circumstances to the prosecution. He argued that the legislature never contemplated making the prerequisites for a defence application for preliminary cross examination more stringent than for a similar application by the prosecution.
63Ms Jegathesan submitted similarly, though argued that the power to order preliminary examination on application of the prosecution in fact fell away earlier, with the passage of the Criminal Procedure Act in 2009, and that what was being contemplated by Justice Kaye in Jacobson was in fact the pre-recording of evidence to be played before the jury, not evidence in the form of preliminary examination. Ms Jegathesan argued that following the legislative history reveals the very clear and unambiguous intention of the legislature that this kind of application would not be permitted.
Conclusion on express power
64I deal first with Ms Jegathesan’s submissions about Jacobson. There is no force in this argument. On any reading of the case, it is clear that Justice Kaye was dealing with a process anterior to any recording of evidence for a jury.
65Next, no absurdity is created by the reading of s 198 in the way submitted for by the prosecutor. It is clear that there are some circumstances in which an accused may apply for, or agree to the pre-recording of a witness pursuant to s 198. There may be other circumstances where an accused could apply for orders under s 198. It is clear however that s 198B provides the avenue, and the only avenue, to preliminary cross-examination by an accused: where a general provision and a specific provision co-exist, the specific provision (in this case s 198B) prevails.
66Further, it is clear that the intention for the codification of the ‘Basha’ hearing now in s 198B, and made more stringent in that form, was in response to the perceived over-use of the procedure by accused.[35] It was a procedure very rarely invoked by the prosecution. There is no evidence of any warrant for denying prosecution permission to obtain an order for pre-trial examination, nor any perceived ‘mischief’ the cure for which was to make the procedure completely unavailable to the prosecution but still available to an accused, albeit in a stricter form.
[35]See for example Director of Public Prosecutions (Vic) v Denysenko [1998] 1 VR 312 at [318]; (1997) 91 A Crim R 313 per Brooking and Tadgell JJA, and Hedigan AJA, and Williams v Director of Public Prosecutions (Vic) (2004) 151 A Crim R 42 at [41] per Gillard J; both cited in Harvey (n 20) at [22]-[23].
67Further, unlike the power in s 198, the procedure in s 198B can be invoked by an accused both before and during trial.
68Next, there is no clear expression of the legislature’s intention to foreclose this avenue to the prosecution in 2018, nor is there such an intent as can be reasonably inferred from the legislative developments since the introduction of s 11 in the CCTA in 1999. If the legislature intended this in 2018, it could have said so expressly, or referred to this intent in the secondary materials. It did neither, though did refer to other exclusions in the secondary material,[36] and expressly abolished the common law Basha procedure.
[36]Explanatory Memorandum, Justice Legislation Miscellaneous Amendment Bill 2018 (n 15) see Clause 30, “It is not intended that amended section 198 permit cross-examination of a complainant in a sexual offence case who is a child or a person with a cognitive impairment when the criminal proceeding commenced (i.e., a complainant referred to in section 123 of the Criminal Procedure Act 2009).
69The arguments that the powers found to exist by Justice Hollingworth under s 11 of the CCTA and Justice Kaye under the original s 198 were removed in 2018 hold little force.
70I note parenthetically the content of s 198(5) which provides that an order referred to in subsection 1 may include a direction that the evidence is to be recorded in a specified manner.
71In the end, no reference to the secondary materials is necessary when the clear words of s 198(2)(e) allow the Court to order evidence be taken before the trial ‘for any other reason the Court considers it appropriate’. The Court must, before making such an order, be satisfied pursuant to s 198(4) that that it is in the interests of justice to do so.
72I have found that in s 198 of the Act there is express power to do what the prosecution applies for. In the event I am wrong, I will also consider whether there is implied power to do the same thing.
Implied power
73The prosecutor argued that a statutory Court such as the County Court “undoubtedly possesses jurisdiction arising by implication upon the principle that grant of power carries with it everything for its exercise”.[37] Both Mr Bowen and Ms Jegathesan argued that no such power can be implied in an inferior Court, or rather, that such power has been found as inherent power in Courts of superior jurisdiction, but cannot be assumed in this Court.
[37]Grassby v The Queen (1989) 168 CLR 1 at 16 per Dawson J.
74In Dietrich v The Queen,[38] a case which concerned the power of the County Court to stay or adjourn a trial if unfairness were occasioned by the accused being unrepresented, Justice Gaudron said that:
The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.[39] [emphasis added].
[38](n 29).
[39]Ibid 363-4 (Gaudron J).
75I note that her Honour used the word ‘inherent’ though deciding a case concerning the powers of an inferior Court. I observe that the terms ‘inherent’ and ‘implied’ have both been used when speaking of the powers intrinsic to the jurisdiction of inferior Courts.
76Mr Bowen and Ms Jegathesan argued that the County Court has no inherent power, and the distinction between implied power of an inferior Court and the inherent power of a superior Court is fundamental.
77They argued: it was this inherent power to regulate and control proceedings that Justice Whealey (though sitting in a superior Court being the Supreme Court of New South Wales) invoked in the case of Ronen to order the pre-trial examination of witnesses on the application of the prosecution. Justice Hollingworth, in Harvey, also referred to ‘inherent’ power, though in the context of reviewing this Court’s power to order preliminary examination.
78The prosecutor argued that the County Court’s implied power to order such a procedure is sourced in the conferral of jurisdiction in s 36A of the County Court Act. The terms of this section are these:
Criminal jurisdiction of the County Court
(1) The court shall have jurisdiction to inquire into hear and determine and adjudge all indictable offences (whether committed before or after the commencement of the County Court (Jurisdiction) Act 1968 ) save and except the offences following (that is to say)—
[exemptions from jurisdiction for murder and other offences]
(2) Subject to subsection (1) and unless otherwise expressly provided the County Court shall have jurisdiction and powers with respect to indictable offences and the trial thereof as fully and amply to all intents and purposes as the Supreme Court of Victoria in like matters and the general principles of practice and procedure observed for the time being in the Supreme Court of Victoria with respect to the trial or determination of indictable offences shall be adopted and applied in the County Court.
79Mr Ihle argued that s 36A(2) has ‘work to do’. Section 36A(2) was considered by the Court of Appeal in R v Edwards,[40] and the Court there considered the question of whether s 36A(2) effectively ‘upgraded’ the County Court to have co-ordinate jurisdiction with the Supreme Court (it does not). But in considering this issue Weinberg and Williams JJA said:
Regardless of the precise scope of s 36A(2), it is clear that it confers upon the County Court somewhat greater jurisdiction than that ordinarily bestowed upon inferior courts of record. It forms a part of the statutory context in which the question whether there is a power to reconsider a decision made without power must be determined.[41]
[40](2012) 44 VR 114.
[41]Ibid [213].
80Implied powers, Mr Ihle submitted, can be, and are sometimes, limited or abrogated, but there must be clear legislative language to that effect. There is no such limitation, he argued, in relation to the power he seeks to invoke.
81Mr Bowen and Ms Jegathesan argued that inferior Courts do possess ‘implied powers’ which arise by implication ‘upon the principle that a grant of power carries with it everything necessary for its exercise’. While these implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior Court, they are, it was argued, derived from a different source ‘and are limited in their extent’. They argued the reasoning in Ronen was not applicable as Justice Whealey was drawing on the implied power of a superior Court, and that Justice Hollingworth’s reference to ‘inherent’ power in Harvey makes it clear her Honour was considering the inherent power of a superior Court not implied power of the County Court in that case.
82Further, it was argued, implied powers are subject to express statutory provisions. No such implied power could be said to survive the repeal of s 198(2)(a) and (b). (This argument I have already addressed when considering the express power.)
83The prosecutor accepted that s 198 of the Criminal Procedure Act has work to do in defining the ‘metes and bounds’ of, or limitations on, the broad jurisdiction conferred by s 36A of the County Court Act. He argued that the words ‘unless otherwise expressly provided’ in s 36A(1) are significant, and that any limitation on the County Court’s ability to control its own procedures, and to make orders that are necessary for the fair and efficient conduct of criminal trials needs to be the subject of express legislative language to that effect.
Conclusions on implied power
84I accept that there is an important distinction between inherent and implied powers of superior and inferior Courts. However, s 36A(2) of the County Court Act clearly confers broad powers to manage the process of the trial of indictable offences.
85I do not find there to be any express exclusion of the procedure sought by the prosecution in this case. For completeness, nor do I find there to be any implied intention on the part of the legislature in s 198 Criminal Procedure Act or its history that limits this Court’s power to control its own procedures. More specifically in relation to this case, there is no express or implied abrogation of the Court’s power to make orders to avoid sailing into a trial which is almost certainly to be the subject of a jury discharge once Ms Jegathesan is called to give evidence.
86Put differently, I do not find that a legislative intention to limit the operation of s 198 Criminal Procedure Act to the pre-recording of evidence to be played to a jury can be inferred from the legislative history or the secondary materials, particularly when there is no ambiguity in the content of the clear words in s 198.
87Having found there is both express and implied power to make an order in the terms sought, and no express abrogation of the power of this Court to do everything necessary to control the procedures of trial on indictment, I will now consider whether such an order should be made in this case.
Should the power be exercised in favour of ordering Ms Jegathesan be required for preliminary examination?
88Ms Jegathesan is clearly a central witness to the events giving rise to Mr Bowen’s prosecution. Her evidence has the potential to make what is currently a circumstantial case into one proved by direct evidence. She is said to be the source of the ‘inside information’ applied by Mr Bowen. The prosecution clearly has an obligation to call her as a relevant witness at trial.
89While Ms Jegathesan has given an account in a voluntary interview, it is clear that further questions would need to be asked, based on other evidence now in the possession of the prosecution. No one knows what she will say under oath.
90The case is listed for a trial of four weeks’ duration; pre-trial applications must be determined in advance. Discovering what Ms Jegathesan says for the first time ‘cold’ before the jury would, almost inevitably, cause the trial to be at the very least significantly delayed. She foreshadows an intention to refuse to answer questions. There may be other, unpredicted issues which arise about the admissibility of what she says. A jury discharge, is, in my view all but inevitable. Such a process is disruptive, chaotic and profoundly wasteful. It should be avoided.
91The ‘cold-calling’ of Ms Jegathesan would also produce unfairness to Mr Bowen, who would be confronted with evidence about which he had had no notice.
92For these reasons, and pursuant to the County Court’s express power in s 198 Criminal Procedure Act, and implied power to regulate and control the proceedings in relation to the trial of indictable offences, I find it appropriate that the evidence of Ms Jegathesan be taken before the commencement of Mr Bowen’s trial.
93My power to so order is subject to the ‘metes and bounds’ set out in s 198.
94So, before so ordering, I am also obliged, pursuant to s 198(4) to consider whether it is in the interests of justice that Ms Jegathesan’s evidence be taken pursuant to this procedure. This requires me to consider Ms Jegathesan’s objection to giving evidence on the grounds she may incriminate herself, and impose a test that, the parties agree, is identical to that in s 128(4) of the Evidence Act.
95A further argument put in this context is that the delay between the events she would be questioned about and the preliminary examination would cause unfairness to Ms Jegathesan.
96I pause to note that s 128 of the Evidence Act relevantly provides:
Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that—
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(…)
The interests of justice test
97As I have said, it is foreshadowed that Ms Jegathesan will, when being questioned in Court, invoke her privilege against self-incrimination and refuse to answer questions.
98The prosecution did not argue that Ms Jegathesan would not have reasonable grounds for so objecting, or that the evidence she may give would not ‘tend to prove’ that she has committed an offence.
99Rather, the prosecution argued that the proper course would be that Ms Jegathesan should be required to give the evidence under the protection of a certificate pursuant to s 128(7) Evidence Act, which provides that:
In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
100The effect of s 128 of the Evidence Act is to abrogate the common law privilege against self-incrimination.
101Section 128 requires a balancing between upholding an objection by a witness to giving evidence (which may tend to prove they have committed an offence), and requiring the witness to give the evidence with the protection of a certificate under s 128(5).
102I pause to infer from the way the case was argued, that there is no suggestion that Ms Jegathesan could answer some, but not all questions put to her in examination in chief. The situation would call for a ‘blanket’ certificate at the commencement of Ms Jegathesan’s evidence.
103The topics for questioning outlined in the letter of Timothy Wallace of 6 May 2024[42] make it clear enough that there would be no relevant questions asked of her that did not have some potential to expose Ms Jegathesan to liability. Moreover, some of those questions may not even appear on their face to be dangerous. Everything from ‘Did you know Mr Bowen had shares’ to ‘do you typically drink green tea after lunch’ could potentially be incriminating.
[42]Exhibit “AJD-17” of the affidavit of Andrew Doyle.
104Ms Jegathesan argued that this was a case which attracts the principles articulated by the High Court in X7 v Australian Crime Commission[43] (‘X7’) and which were applied more recently in Victoria in the case of Villan v State of Victoria (‘Villan’).[44] In X7, Hayne and Bell JJ said:
Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered.[45]
[43](2013) 248 CLR 92 [70]-[71] (Hayne and Bell JJ).
[44][2021] VSC 354 [16] (Keogh J); see also comments on the appeal in State of Victoria v Villan [2022] VSCA 106 [88].
[45]X7 (n 44) [71] (Hayne and Bell JJ).
105I appreciate that Ms Jegathesan does not have ‘pending charges’. She argued that it is not necessary that a witness already be charged to attract the those principles - the witness in Villan had not been charged, but there was a prospect that he would be.
106The prosecutor argued that, while Ms Jegathesan was initially suspected of an offence in this context, the fact that five years later she has not been charged is instructive: if there were going to be charges they would, he argued, ‘more likely have been brought by now’.[46]
[46]Transcript of argument 11 June 2024 (County Court of Victoria) 92.12.
107The prosecutor also argued that Ms Jegathesan’s evidence would be harnessed to prosecute serious offences, involving a lot of money, and the offending is of a kind which, I infer, has the potential to undermine the integrity and operation of financial markets. I accept that these are serious charges and that Ms Jegathesan’s evidence may be of great significance in the trial. I note there may be challenges made to Ms Jegathesan’s credibility; at an earlier hearing there was some reference to the prosecution making application pursuant to s 38 of the Evidence Act in relation to her.
108The prosecutor did not argue that there would be no case against Mr Bowen if Ms Jegathesan were not required to give evidence.
109However, one thing is clear and that is this: on a recent application the Commonwealth Director of Public Prosecutions has declined to offer Ms Jegathesan unconditional immunity from prosecution. Of course, this is a matter entirely for her, but I must weigh up the interests of justice in requiring Ms Jegathesan to give evidence. It is not possible for me to predict with any confidence whether Ms Jegathesan is to be charged. She is now in a dusky position somewhere between ‘suspect’, ‘would likely have been charged by now’ and ‘not granted unconditional immunity’.
110However, I can say that on the facts as currently before me, she is vulnerable to prosecution for serious charges which carry significant terms of imprisonment, and her answers to questions in evidence would put her into an irrevocable and ‘radically altered’ relationship to any future prosecution case against her. No longer could she put the prosecution to its proof and test a circumstantial case from any perspective. Her lawyers would be confined in the way they could cross examine witnesses, and argue the case to a jury.
111This balancing must be performed on imperfect information. I can say that I do not conclude that Ms Jegathesan being charged is speculative. I do not forget the power of the provisions in s 128 which make Ms Jegathesan’s answers and information derived from them inadmissible in a trial against her.
112The party seeking to have the witness compelled, in this case the prosecution, bears the onus of satisfying the court that the interests of justice require the evidence to be given.
113The provision in s 128 abrogates a common law right to a significant extent: this, and the fact that the standard in s 128(4)(b) is that the interests of justice ‘require’ that the witness give evidence - reflects a ‘relatively high standard of satisfaction’[47] to be established by the prosecution in this case.
[47]Gilbert Gedeon v R (2013) 237 A Crim R 326 [286] per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ.
114In conclusion, on s 128(4)(b), and s 198(4) I am not satisfied that the interests of justice ‘require’ Ms Jegathesan to give answers to questions, or that her evidence be taken, in the light of her claim of the privilege against self-incrimination.
115In reaching this conclusion I have had regard to the additional claim of delay occasioning unfairness to her; it does not alter the calculus I have described in any meaningful way.
116My conclusion is this: I am not satisfied that a s 128 certificate preserves Ms Jegathesan’s right not to incriminate herself to a sufficient degree such that it is ‘interests of justice’ that she be required to answer questions at a preliminary hearing.
117The application for pre-trial examination is refused.
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