Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police
[2019] VSCA 154
•27 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0115
S CR 2019 0112
IN THE MATTER OF A PROCEEDING RESERVED FOR THE CONSIDERATION OF THE COURT OF APPEAL PURSUANT TO S 17B OF THE SUPREME COURT ACT 1986
BETWEEN
| THE CHAIRPERSON OF THE ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS | Applicant |
| and | |
| CHIEF COMMISSIONER OF VICTORIA POLICE & ORS (according to the schedule) | Respondents |
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| JUDGES: | WHELAN, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 June 2019 |
| DATE OF JUDGMENT: | 27 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 154 |
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CRIMINAL LAW – Suppression orders – Application by chairperson of the Royal Commission into Management of Police Informants to vacate or vary suppression orders – Whether continuation of orders necessary – Whether without order risk to safety unacceptable – Revocation of suppression orders would increase risk – Suppression orders varied to permit disclosure to and by the Royal Commission in accordance with Inquiries Act 2014 and the Witness Protection Act 1991 – AB v CD [2019] VSCA 28, AB v CD; EF v CD [2019] HCA 6 applied – Open Courts Act 2013 (Vic) ss 15, 18 – Witness Protection Act 1991 (Vic) ss 10(5), 10(7), 10A – Inquiries Act 2014 (Vic) ss 12, 17, 18, 21, 24, 26, 34.
CRIMINAL LAW – Witness protection – Authorisation of disclosure – Applicable legislation should be applied – Authorisation as sought unwarranted – Witness Protection Act 1991 (Vic) ss 10(5), 10(7), 10A – Inquiries Act 2014 (Vic) ss 18, 34.
PRACTICE AND PROCEDURE – Declaration sought – No relevant controversy – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Ms P A Neskovcin QC with Ms M Tittensor and | Holding Redlich |
| First Respondent | Dr I R L Freckelton QC with Mr A J Purton and | Corrs Chambers Westgarth |
| Second Respondent | Ms K A O’Gorman | Mr J Cain, Solicitor for Public Prosecutions |
| Third Respondent | Ms D Mandie and | Moray & Agnew Lawyers |
| Fourth Respondent | Mr J D Pizer QC and | PICA Criminal Lawyers |
| Fifth Respondent | Mr C M Terry | Chris McLennan & Co Lawyers |
| Sixth Respondent | Ms N Mikhaiel | Hunter & Bradden Lawyers |
| Seventh Respondent | Mr L Richter | Fayman Lawyers |
| Herald & Weekly Times Pty Ltd, The Age Company Ltd and Nationwide News Pty Ltd | Mr M J Hoyne | Macpherson & Kelley |
WHELAN JA
BEACH JA
WEINBERG JA:
In July 2012 former Chief Commissioner of Police, Mr Neil Comrie AO APM, completed a case review into the conduct of current and former members of Victoria Police in relation to a human source, code-named 3838, now known to be the former barrister, Ms Nicola Gobbo. On 10 April 2014 Victoria Police gave a notification to the Independent Broad-Based Anti-Corruption Commission (‘the IBAC’) of a complaint about corrupt conduct or misconduct by Victoria Police in relation to that matter under s 57(2) of the Independent Broad-Based Anti-Corruption Commission Act 2011. Because the IBAC Commissioner at the time had a perceived conflict of interest he delegated his powers to the former Supreme Court Judge the Honourable Murray Kellam AO QC. Mr Kellam produced a report dated 6 February 2015, referred to as ‘the Kellam Report’. Amongst the recommendations in the Kellam Report was a recommendation that a copy of the report be provided to the Director of Public Prosecutions (‘the DPP’). Consequent upon the receipt of the Kellam Report, the DPP determined to notify a number of named persons as follows:
Material contained in the Kellam Report could be interpreted to mean that at or about a time when 3838 was your legal representative in relation to charges for which you were later convicted, 3838 was also providing information to Victoria Police about you, in possible breach of legal professional privilege and/or in breach of a duty of confidentiality.[1]
[1]AB & EF v CD [2017] VSC 350 [5].
When notified of the DPP ‘s intentions, the Chief Commissioner of Police (‘the Chief Commissioner’) and Ms Gobbo took proceedings directed at preventing the DPP from making the notification foreshadowed. Those proceedings, which culminated in an appeal to the High Court, were unsuccessful.[2]
[2]The relevant judgment at first instance is AB & EF v CD [2017] VSC 350. The judgment on the appeal to the Court of Appeal is at [2017] VSCA 338. The relevant High Court judgment, where special leave to appeal granted on 9 May 2018 was revoked, is at [2018] HCA 58.
On 13 December 2018, by letters patent issued under s 5 of the Inquiries Act 2014, the Victorian government established the Royal Commission into the Management of Police Informants (‘the Royal Commission’). Its terms of reference require it to inquire into, and report on, the number of, and the extent to which, cases may have been affected by the conduct of Ms Gobbo as a human source for Victoria Police. The third to seventh respondents to this application (‘the relevant persons’) are relevant to its terms of reference.
The application
This application is brought by the chairperson of the Royal Commission. The respondents are the Chief Commissioner, the DPP, and the relevant persons.
When the application was first made the orders sought were confined, relevantly, to orders revoking or varying suppression orders concerning the relevant persons made in the Supreme Court in and between 2006 and 2017. That application was made under the Open Courts Act 2013 and the inherent jurisdiction of the Court. Pursuant to s 11(1) of the Open Courts Act the Court notified relevant news media organisations of the application. The parties were advised of the Court’s intention to do so at a directions hearing on 27 May 2019. At a further directions hearing on 31 May 2019 a solicitor appeared for the Herald and Weekly Times Pty Ltd. He indicated, amongst other things, that his firm expected to be instructed by additional news media organisations. At the hearing of the application before us counsel appeared and made submissions on behalf of the Herald and Weekly Times Pty Ltd, The Age Company Pty Ltd and Nationwide News Pty Ltd (‘the media companies’).
By a further amended application filed pursuant to an order made at the hearing on 18 June 2019 the applicant seeks, in addition to the orders sought concerning the suppression orders, orders under s 10(7) of the Witness Protection Act 1991 and a declaration as to the effect of s 34(1) and (2) of the Inquiries Act.
Relevantly, the orders sought in the further amended application are:
5.An order revoking the suppression orders in the Annexure or, alternatively, varying the suppression orders in the Annexure save insofar as the orders prohibit the publication of any image of [the relevant persons].
6.Pursuant to s 10(7)(a) of the Witness Protection Act 1991 (Vic), an order authorising the disclosure by any person of the identity of each of the [relevant persons][3], including the person’s name and any information that might tend to identify the person, but not an image of the person or any new identity assumed by the person under the Witness Protection Act.
7.Alternatively to paragraph 6, pursuant to s 10(7)(a) of the Witness Protection Act, an order authorising the disclosure by any person of the identity of each of the [relevant persons] by the use of the pseudonyms set out below (or such other pseudonyms as the Court determines), including any information that might tend to identify the person, but not the person’s name, an image of the person or any new identity assumed by the person under the Witness Protection Act:
[proposed pseudonyms set out]
8.A declaration that s 34(1) and (2) of the Inquiries Act 2014 (Vic) apply in respect of a requirement imposed on a person by the Royal Commission under ss 17(1) or 21(1) of the Inquiries Act to give information or evidence or to produce a document or other thing where the Witness Protection Act prohibits the person from giving such information or evidence or producing the document or other thing.
[3]The application when issued named one respondent who was not then, but is now, subject to the relevant provisions of the Witness Protection Act.
The annexure to the application sets out the orders of this Court sought to be revoked or varied (‘the suppression orders’).
Late in the hearing further proposed orders were canvassed by senior counsel for the applicant as alternatives to the orders sought in the further amended application. There was little opportunity for the parties to address these alternatives. We will address them after determining the application as formally made.
Other procedural issues
On 31 May 2019 the applicant and the Chief Commissioner requested that the application be referred to the Court of Appeal pursuant to s 17B of the Supreme Court Act 1986, and that order was made.
Prior to the hearing, the third respondent gave a notice under s 35 of the Victorian Charter of Human Rights and Responsibilities Act 2006. The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission advised that they did not intend to intervene or make submissions. As matters transpired, no submission based upon the Charter of Human Rights and Responsibilities was advanced before us.
The DPP is a respondent to the application. She advised the parties she did not intend to file material or make submissions and she did not do so. She was represented at the hearing and answered certain queries. The Commonwealth Director of Public Prosecutions was notified of the application but advised that she did not wish to be heard.
The hearing of the application concerning the suppression orders was held in closed court after an order was made under s 30 of the Open Courts Act. The order was made because the Court determined that it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other means, and to protect the safety of the relevant persons and their families. The affidavit material which was before the Court, and which was addressed in the submissions, concerned the activities of the relevant persons in assisting police and prosecuting authorities, and threats to the physical safety of those persons and their families as a consequence. No party contested the making of that closed court order.
Not all of the affidavit material and the written submissions were served on all of the parties. With one exception, the Court acquiesced in arrangements made by the parties amongst themselves in that regard, and prior to the hearing consent orders were made facilitating those arrangements. The exception was that the Court ordered that counsel and the solicitor for the media companies be given a copy of the Chief Commissioner’s confidential submissions, upon an undertaking given by them not to disclose its contents other than to each other and legal representatives of other parties.
The application under s 10 of the Witness Protection Act was required to be heard in closed court under s 13 of that Act. An order to that effect was made. The application for the declaration concerning the Inquiries Act was inextricably interconnected with the application under the Witness Protection Act and was heard at the same time.
As matters transpired, the relevant factual issues were substantially uncontroversial. This meant that counsel for the respective parties were able to make submissions without canvassing affidavit material not served on all other parties. All parties proceeded on that basis without objection.
These reasons have been drafted in the expectation that they will be able to be published with little or no redaction. For that reason reference to the affidavit material, and to some of the submissions, is less detailed and less specific than would otherwise be the case.
Basis of the Royal Commission’s application
Ms Gobbo at various times represented each of the relevant persons, except perhaps the fifth respondent. She had a connection with that respondent, but the material does not establish that she formally acted for him.
All of the relevant persons have been convicted of serious crimes. All of them gave evidence on behalf of the Crown in proceedings against others for serious offences, or agreed to do so.
In the affidavit initially filed in support of the application by one of the solicitors assisting the Royal Commission the relevant general area of inquiry by the Royal Commission was described in the following terms:
The Commission is concerned in relation to Ms Gobbo’s conflicts of interest and duty, the nature of any tasking of her by police in relation to clients, her gathering of intelligence, her imparting of intelligence to police and other parties, her involvement in the process of taking statements from witnesses, and the disclosure of such relevant matters to accused who were charged by police with criminal offences. All these issues are central to the Commission’s terms of reference.
In the same affidavit the solicitor described the reasons for the application in the following terms:
It is the view of the Commission that orders prohibiting the disclosure by non-publication or otherwise of the identities of [the relevant persons] would frustrate the efficient and effective conduct of the inquiry and the ability to hold parts of the inquiry in public.
The High Court found that Ms Gobbo engaged in ‘fundamental and appalling’ breaches of her duty to her clients and obligations to the Court. The High Court also found that Victoria Police were ‘guilty of reprehensible conduct’ in knowingly encouraging Ms Gobbo to do as she did and were involved in sanctioning ‘atrocious breaches’ of the sworn duties of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will [citation].
This conduct led to the establishment of the Commission. It may also lead to retrials of convicted persons. The Commission is investigating conduct and matters that resulted in convicted persons receiving significant reductions in sentences and, in some case, indemnities as well as other benefits.
The matters which will be the subject of inquiry and report by the Commission are critical to the maintenance of the integrity of the criminal justice system and the public’s confidence in it. The establishment of the Commission is recognition that the public ought to know what actually went on.
The Commission intends, as far as possible, to hold hearings in public. It is very important to the work of the Commission that the public should be able to understand the work of the Commission, the evidence and information provided to it, and ultimately, the basis and reasons for the Commission’s report and any recommendations in it. In my view, it is very important that the Commission’s work not be frustrated by the operation of non-publication orders that are not necessary.
The Commission would like to receive any evidence that exists about the matters that fall within its terms of reference. Persons who might be able to provide such evidence may not come forward if they do not recognise individuals or the nature of their evidence or involvement because of non-publication orders or the use of pseudonyms.
In the context of the Commission adducing evidence, the use of pseudonyms may cause confusion or a lack of understanding or appreciation of the involvement of individuals and interconnectedness between individuals and circumstances. This may result in witnesses giving incorrect answers or not providing evidence relevant to the Commission’s terms of reference. Ultimately, it may also compromise the ability to comprehend the effect of the evidence and the Commission’s report.
In a second affidavit by the solicitor she referred to hearings of the Royal Commission to be held in the near future and then deposed:
The Commission considers that it is important that those hearings be held in public to the fullest extent possible. If the hearings are unduly hampered by the existence of suppression orders prohibiting the disclosure of information about the identities of [the relevant persons], or by similar statutory prohibitions under the Witness Protection Act, the Commission’s ability to conduct its inquiries will be adversely affected. A significant number of convicted persons may have been affected by Gobbo’s conduct in ways that could impact upon the safety of their convictions. Those persons may have a right to appear before the Commission (subject to leave being granted) to make submissions and to cross-examine relevant witnesses. To do so, they must first know that their convictions may have been affected by Gobbo’s conduct and in what ways.
The Commission considers that public hearings, using the real names of the persons involved, may serve to put some persons on notice of the fact that their convictions may have been affected by the conduct that is the subject of the Commission’s inquiries and cause them to approach the Commission. A number of persons have already done so, as detailed below. The Commission will not be able to receive the full benefit of submissions and cross-examination on behalf of affected persons if those persons are unable to review relevant material or to participate in hearings because suppression orders and prohibitions under the Witness Protection Act prevent them from doing so.
The solicitor then produced transcript of a directions hearing which, she deposed, ‘illustrates’ the points which she had set out. At the directions hearing lawyers for ten convicted persons appeared and, in substance, made complaints about the timeliness and adequacy of disclosure by Victoria Police. The solicitor’s affidavit then addressed those submissions as follows:
Although many of those submissions were made in anticipation of foreshadowed claims to public interest immunity on behalf of Victoria Police, they apply equally to suppression and non-disclosure of relevant material because of suppression orders and prohibitions imposed by the Witness Protection Act. The Commission will hear and determine any submissions that are made regarding whether the Commission should make closed hearing or suppression orders under s 24 or s 26 of the Inquiries Act or under s 10A of the Witness Protection Act. However, if the suppression orders that are the subject of the Amended Application remain in place, and if the prohibitions in the Witness Protection Act continue to create a risk of criminal liability for witnesses and others appearing before the Commission, the Commission’s ability to determine what should and should not be made public will be significantly impaired.
In a third affidavit the solicitor for the Royal Commission set out details of the disclosures made to date by the Office of Public Prosecutions to persons whose convictions may have been affected by Ms Gobbo. There are a significant number of such persons. In the course of the hearing before us counsel for the DPP advised that the process of disclosure was ongoing. She indicated that the DPP considered that Victoria Police had made ‘minimal disclosure’ to date.
Significance of the Royal Commission’s inquiries
The affidavit of the solicitor for the Royal Commission quoted certain extracts from the High Court judgment in the appeal to which previous reference has been made. What the High Court said in the passage referred to was the following:
[Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [Ms Gobbo’s] obligations as counsel to her clients and of [Ms Gobbo’s] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.[4]
[4][2018] HCA 58 [10].
After the High Court judgment an unsuccessful application was made to this Court for an order prohibiting publication of Ms Gobbo’s name and image, amongst other things.[5] In the course of rejecting that application this Court said:
There is a high public interest in permitting the Royal Commission to conduct a detailed and thorough analysis of all of the matters underlying the conduct which [Ms Gobbo] and Victoria Police are alleged to have engaged in. Equally, there is a high public interest in the Royal Commission being able to do its job in a way that will throw light on the question of whether convictions for serious criminal offences that resulted in significant periods of incarceration can be permitted to stand.[6]
[5]AB v CD [2019] VSCA 28 (‘AB v CD — CoA 2019’). There is a restricted and an unrestricted version of this judgment.
[6]Ibid [71].
The suppression orders
A number of the orders were made prior to the Open Courts Act 2013, and, consequently, do not have designated termination dates, but rather operate until further order or operate indefinitely.
Express reference is made in some of the orders to s 18(1)(c) of the Open Courts Act which concerns safety. Given the activities of the relevant persons, and the legal principles concerning informers to which we refer below, it is safe to assume that all of the orders were made so as to protect the safety of persons and/or so as to prevent a real and substantial risk to the administration of justice.
The relevant persons
Each of the relevant persons is or has been a ‘participant’ within the meaning of Division 4 of Part 2 of the Witness Protection Act. Some of them are living under a new identity arranged under the provisions of that Act. Some of them are in prison. Some of their family members have changed their names and some have not.
As indicated earlier, each of the relevant persons gave evidence for the Crown, or agreed to do so, in relation to serious criminal activities. Each of the relevant persons have themselves been convicted of serious criminal offences.
The respective persons in relation to whom the relevant persons gave evidence, or agreed to do so, already know of their identity and of the fact that they have cooperated with the authorities. Indeed, due to the notoriety of the matters with which they were involved, knowledge of the relevant persons’ cooperation extends to a significant proportion of both the legal profession practising in criminal law and the criminal underworld.
All of the relevant persons have been identified at one time or another as informers or persons who have given evidence against other offenders in publicly available material, some more so than others.
Affidavits relied upon by the Chief Commissioner and the relevant persons
Neil John Paterson, an Assistant Commissioner of Victoria Police, affirmed an ‘open’ affidavit on 12 June 2019. On the same date he affirmed a ‘confidential’ affidavit, substantially addressing the same issues as in the open affidavit but in greater detail and by reference to specific circumstances and events. He also affirmed a ‘confidential’ affidavit in relation to each of the relevant persons.
Mr Paterson is the Assistant Commissioner responsible for Intelligence and Covert Support Command. He has direct responsibility for the Human Source Management Unit and the Witness Protection Unit. He has extensive experience as an operational police officer.
In his open affidavit Mr Paterson explains that the public identification of a person as a ‘human source’ for police inquiries ‘puts that person’s safety in jeopardy and their life at risk’. He gives the example of the high profile shooting murders of Terence Hodson and his wife, Christine. Mr Paterson goes on:
Where it becomes publicly known, particularly in criminal circles, that a person is, or has, assisted police, these persons generally require protection by Victoria Police or within the prison system, because the risk to these persons in criminal networks involving organised crime increases exponentially.
Mr Paterson deposes that ‘prison culture’ actively encourages other prisoners to harm prisoners who have provided information and statements to police.
Mr Patterson addresses the Witness Protection Act and expresses the belief that if the confidentiality regime under that Act is not applied ‘it would negatively impact on the administration of justice because any witness who is giving evidence against a criminal or who has been a registered human source should have confidence that the system will protect them if they are at risk, including participation in the Program if appropriate’.
Mr Paterson expresses the belief that the Royal Commission has ‘reignited interest’ in the ‘Melbourne gangland’ period. Mr Paterson deposes that Victoria Police is significantly concerned that the identification of human sources in that context will occur ‘through a cumulative effect of separate pieces of information being joined or the information being provided in a “neat parcel” through the Royal Commission and media publication’.
Mr Paterson expresses the view that the current suppression orders ‘assist substantially in managing the risk’ to the relevant persons. He deposes that in his opinion, if the suppression orders are lifted and the information concerning the relevant persons is made public through the Royal Commission this would make any current person assisting police ‘fearful and extremely cautious about continuing to provide Victoria Police with information’, and would ‘deter any future person who wishes to assist police from providing this assistance’.
In substance, the confidential affidavits of Mr Paterson set out detailed explanations for the matters he deposes to in the open affidavit, giving specific examples, and addressing specific threats and criminal organisations, and they address the same issues specifically in relation to each of the relevant persons. We have had careful regard to all of that material. It is neither necessary nor desirable to set out the contents. No party sought to contest the matters deposed to before us.
Affidavit material relied upon by each of the relevant persons confirms their personal concerns about any measure or course of action having the potential to increase the availability of information about them. Their concerns are as to their own safety and the safety of their families.
The affidavits relied upon by the Chief Commissioner and by the relevant persons establish, in our view, that the concerns of the relevant persons are well-founded. Again, it is neither necessary nor desirable to set out the contents of these affidavits, but we have had careful regard to that material. Again, no party sought to contest the matters deposed to before us.
Relevant legislation
All of the relevant persons are persons to whom the provisions of Division 4 of Part 2 of the Witness Protection Act apply. Section 10 in Division 4 governs information which is not to be disclosed.
Section 10(5) provides:
A person must not, without lawful authority, disclose information in Victoria or elsewhere —
(a)about the identity or location of a person who is or has been a participant; or
(b)that compromises the security of such a person.
Section 10(7) relevantly provides:
Subsections (5) … do not apply to —
(a)a disclosure that is authorised or required by an order of the Supreme Court …
Section 10(8) provides a definition of the term ‘identity’. It is defined to include:
any individual characteristics by which a person is recognised, such as their name, nick-name, depiction or physical description, a physical feature or biometric identifier, their personal association with another person or anything that may reasonably lead to their identification.
Section 10A(1) specifically addresses the circumstance where the identity of a participant or the fact that a person is a participant is ‘in issue’ or ‘may be disclosed’ in certain proceedings, including before a Royal Commission. Subsection (2) creates a presumption that, in that circumstance, the relevant part of the hearing is to be held in private and should be subject to a non-publication order. Section 10A(2) relevantly provides as follows:
The … Royal Commission … must, unless it considers that it is not in the interests of justice to do so —
(a)hold the part of the proceeding that relates to the matter or matters referred to in subsection (1) in private; and
(b)make any order prohibiting or restricting the publication of evidence given before it that, in its opinion, will ensure that the matter or matters referred to in subsection (1) is not disclosed …
In the context of this application the express purpose and the express objective of the Witness Protection Act are important.
Section 1 of the Witness Protection Act provides:
The purpose of this Act is to facilitate the security of persons who are, or have been, witnesses in criminal proceedings in Victoria or elsewhere in Australia.
Section 3AAA provides:
The central objective of witness protection is to give practical effect to the rule of law and advance the public interest in the efficacy and integrity of the criminal justice system by, as far as reasonably possible, protecting those exposed to a risk of injury or death by reason of their participation in, or cooperation with, the criminal justice system.
Section 13 of the Witness Protection Act requires that an application under s 10, such as this one, ‘must be heard in closed court’.
The Royal Commission was established under the Inquiries Act.
Section 12 of the Inquiries Act provides that the Royal Commission may conduct its inquiry in any manner that it considers appropriate subject to, amongst other things, the requirement of procedural fairness. Section 24 gives a commissioner wide powers to determine who may be present in proceedings of a Royal Commission.
Section 17(1) empowers a Royal Commission to require a person to produce documents or attend to give evidence by the giving of a written notice. Section 21(1) empowers the Royal Commission to require a person attending in accordance with a notice to give evidence on oath or affirmation.
Section 18(1) provides that a person who receives a notice under s 17 may claim to have a reasonable excuse. Section 18(2) sets out certain specific circumstances which constitute a reasonable excuse. Relevantly, for present purposes, those circumstances include where the information:
(d) is prohibited from disclosure by a court order; or
(e)is prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or
(f)is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations for the purposes of s 34.
Section 18(3) provides that if a person claims to have a reasonable excuse and the Royal Commission is satisfied that that claim is made out, the Royal Commission may vary or revoke the notice.
Section 26 gives the Royal Commission wide powers to make non-publication orders. The powers are wider than those in the Open Courts Act. In addition to certain specified circumstances, a Royal Commission may make an order prohibiting or restricting publication whenever the Commissioner considers it to be ‘appropriate’ to do so.
Division 7 of Part 2 of the Inquiries Act addresses the issue of privileges and statutory secrecy provisions.
Section 32 provides that legal professional privilege does not apply, and s 33 restricts the application of the privilege against self-incrimination.
One of the orders sought in this application is a declaration concerning the interaction between s 34 of the Inquiries Act and s 10(5) of the Witness Protection Act.
Section 34 of the Inquiries Act provides:
(1)It is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information … to a Royal Commission that another enactment prohibits the person from giving the information … or imposes a duty of confidentiality on the person in relation to the information …
(2)The person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.
(3) Subsections (1) and (2) do not apply to —
(a)a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or
(b)a provision of another enactment that is prescribed by the regulations for the purposes of this section.
(4)If a Royal Commission receives information … in an inquiry, any provision of another enactment that prohibits disclosure of the information … or imposes any other duty of confidentiality in relation to the information … does not apply to the Royal Commission.
Finally, reference must be made to the Open Courts Act.
Section 1 of the Open Courts Act provides that the main purposes of the Act are to reform and consolidate provisions for suppression orders across all of the various courts and tribunals.
Part 3 of the Open Courts Act governs the circumstances in which suppression orders may be made. For present purposes it is sufficient to note that an order can be made only where it is ‘necessary’ to do so for one of a number of specified reasons, including to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means (s 18(1)(a)), or to protect the safety of any person (s 18(1)(c)).
The term ‘suppression order’ in the Open Courts Act is defined to include orders made under the Act and orders made in the Court’s inherent jurisdiction. Section 15 provides that the Court may review any such order and on that review may confirm, vary or revoke it.
Analysis of how the relevant provisions of the Inquiries Act and the Witness Protection Act interact
By the conclusion of the hearing before us there was no controversy between the parties as to how the provisions of the Inquiries Act and the Witness Protection Act interact and are to be applied. Before turning to the submissions made, it is useful to set out that uncontroversial analysis, which we consider to be correct.
The Royal Commission can compel the production of documents and the attendance of persons to give evidence by a notice: Inquiries Act s 17.
A person who receives a notice may claim to have a reasonable excuse for failing to comply: Inquiries Act s 18(1).
Amongst the matters which constitute a reasonable excuse are that the information is prohibited from disclosure by a Court order, prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information to a Royal Commission, or prohibited from disclosure by a provision of another enactment that is relevantly prescribed: Inquiries Act s 18(2).
A provision of an enactment prohibiting disclosure is not a reasonable excuse for failing to comply with a requirement to give information to a Royal Commission unless the provision specifically applies to the giving of information to a Royal Commission, or the disclosure is prohibited by a provision of another enactment that is relevantly prescribed: Inquiries Act ss 34(1) and (3).
Section 10(5) of the Witness Protection Act is not a provision of another enactment that specifically applies to a Royal Commission, and it has not been relevantly prescribed. Accordingly, the prohibition contained in s 10(5) of the Witness Protection Act does not constitute a reasonable excuse for failing to comply with a notice by, or to provide information to, a Royal Commission.
A person who provides information to a Royal Commission as required is not subject to any sanction: Inquiries Act s 34(2).
Once the information is received by the Royal Commission any enactment prohibiting disclosure does not apply to the Royal Commission: Inquiries Act s 34(4).
Where the original identity of a participant, the fact that a person is a participant, or any of the other matters set out in s 10A of the Witness Protection Act ‘may be disclosed’ in any proceedings before a Royal Commission, the Royal Commission must ‘unless it considers it not in the interests of justice to do so’ hold that part of the proceeding in private and make a non-publication order in relation to it: Witness Protection Act s 10A(2).
The Royal Commission has wide powers in relation to the manner in which hearings are conducted, including the power to determine who may be present, and a wide power to make non-publication orders: Inquiries Act ss 12, 24 and 26.
Submissions
Senior counsel for the applicant emphasised:
·the high public interest in the Royal Commission’s inquiry;
·the inhibiting effect the suppression orders were having on the ability to conduct hearings in public, the ability to conduct hearings without disruption and the ability to ensure that all parties with a relevant interest could effectively participate in the inquiry;
·the potential for reliance upon s 10(5) of the Witness Protection Act to have a similar inhibiting effect;
·the potential for the suppression orders and s 10(5) of the Witness Protection Act to have an inhibiting effect on the applicant’s ability to fully and accurately report on the outcome of the Royal Commission’s inquiry.
The submission was at one stage put as highly as asserting that the relevant inquiry was being ‘thwarted’ by the existence of the suppression orders and the Witness Protection Act.
Senior counsel on behalf of the applicant submitted that the ‘burden of persuasion’ in relation to the suppression orders was on those who contended that they should continue in their current form. She submitted that, given that the relevant persons had already been identified by publicly available material as informers, the relevant question was whether removal of the suppression orders would increase the risk they faced. She accepted that the proceedings involving Ms Gobbo and the Royal Commission would have ‘re-ignited’ interest in criminal prosecutions in which the relevant persons were involved. She submitted that arrangements ought to be able to be made to protect the safety of the relevant persons, particularly those in custody.
Senior counsel for the applicant addressed the fact that the law would traditionally protect the identity of informers because that was seen to be important for the justice system and submitted that that was a matter of discretion rather than a matter of establishing necessity.
Senior counsel for the applicant particularly relied upon this Court’s decision in AB v CD — CoA 2019 concerning the suppression of Ms Gobbo’s name and image.
Counsel for the media companies supported the applicant’s submissions emphasising the long standing principle of open justice and the presumption in favour of disclosure in s 4 of the Open Courts Act.
Senior counsel on behalf of the Chief Commissioner, supported by submissions made by counsel on behalf of the relevant persons, submitted that the suppression orders which had been made had been the result of careful consideration and that the Court ought not lightly intervene. The Chief Commissioner accepted that the Court had the power to review both the orders made under the Open Courts Act pursuant to s 15 of that Act, and the prior orders which the Court could review in the exercise of its inherent jurisdiction. Senior counsel submitted that although the review was in a sense a hearing ‘de novo’ the issue had to be considered in the context that the orders had been made after necessity had been established and that the ‘burden of persuasion’ accordingly lay on the party seeking to displace the orders to establish that the previous necessity no longer existed.
The Chief Commissioner accepted that there was a discretion as to whether an order ought to be made, even if one of the requisite necessities under s 18 of the Open Courts Act were established.
In relation to physical safety the Chief Commissioner submitted that the analysis of Nettle J in AB v CD; EF v CD[7] was the correct approach. He particularly emphasised in that connection the danger to family members of the relevant persons. The Chief Commissioner relied upon the traditional protection afforded to informers and submitted that in this case the risk of retribution against the relevant persons was very real. In relation to the suggestion that the work of the Commission would be ‘thwarted’ it was submitted that that was something of an overstatement and that, in any event, that had to be weighed against the ‘extreme’ risk to the physical safety of the relevant persons and their family members, and the general importance to the administration of justice of maintaining confidence in the system’s willingness and capacity to protect informers. It was submitted that the Commission would not be hamstrung because hearings had to be held in private.
[7][2019] HCA 6 (‘AB v CD — HC 2019’).
Senior counsel for the Chief Commissioner submitted that the Court should not vary the suppression orders so as to ‘delegate’ the critical decisions to the Royal Commission.
As indicated, counsel for the relevant persons supported the submissions made by the Chief Commissioner emphasising the particular threats to their individual clients.
In relation to the application under the Witness Protection Act counsel for the Chief Commissioner and counsel for the relevant persons submitted that the broad authorisation sought by the applicant was inappropriate and inconsistent with the scheme of the relevant legislation, both the Witness Protection Act and the Inquiries Act. It was submitted that the declaration sought was moot as there was no issue of controversy as to the interaction between s 34 of the Inquiries Act and s 10(5) of the Witness Protection Act.
This Court’s decision in AB v CD — CoA 2019 and Nettle J in AB v CD — HC 2019
After the unsuccessful appeal to the High Court, previously mentioned, the Chief Commissioner and Ms Gobbo filed applications before this Court seeking permanent non-publication orders in relation to, amongst other things, Ms Gobbo’s name and image. This Court refused to make those orders. In that application the applicant relied upon s 18(1)(a) (protection of the administration of justice) and s 18(1)(c) (protection of safety).
In relation to s 18(1)(a) this Court said:
If this were an ordinary case involving the issue of whether there ought to be a prohibition on publishing the name of a police informer then ordinary principles would tend to support the making of a non-publication order. The present case, however, is no ordinary case.[8]
The Court then set out the passage from the High Court judgment which we have previously quoted. The Court went on to refer to the ‘high public interest’ in permitting the Royal Commission to conduct a detailed and thorough analysis of all of Ms Gobbo’s activities. Apart from anything else, use of her real name and image was seen as being a necessary part of notifying those potentially affected by her activities.[9]
[8]AB v CD — CoA 2019 [70].
[9]Ibid [71]–[72].
Turning to s 18(1)(c), the Court saw shortcomings in some of the material relied upon in relation to risk but accepted that there was no doubt that Ms Gobbo was ‘at considerable risk’.[10] The Court was, however, unpersuaded that, given the publication which had already occurred, lifting the non-publication order which then applied would ‘materially increase any risk’ to Ms Gobbo’s safety.[11]
[10]Ibid [73].
[11]Ibid [77].
The Court observed that even if they had been satisfied that the order was necessary under s 18(1)(c), that s 18(1) imports a discretion, at least in relation to s 18(1)(c). The Court accepted that there was authority which might indicate a different position where necessity under s 18(1)(a) had been established. The Court considered that even if the safety necessity under s 18(1)(c) had been established in Ms Gobbo’s case, there were ‘powerful countervailing considerations regarding the proper administration of justice’.[12]
[12]Ibid [78].
In AB v CD — HC 2019 Nettle J dealt with an application in relation to Ms Gobbo’s children for a non-publication order on the basis of safety. The particular legislation under which he considered the issue was the Judiciary Act 1903 (Cth) but, in our view, the relevant considerations are the same as those arising under s 18(1)(c) of the Open Courts Act. In that connection Nettle J said:
[B]ecause the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the Court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.[13]
[13]AB v CD — HC 2019 [15].
In AB v CD — CoA 2019 this Court referred to the ‘ordinary case’ involving a police informer and the distinction between that situation and Ms Gobbo’s situation. It is necessary to clarify what the Court was referring to in that brief observation.
The position of informers generally, and the position of Ms Gobbo and the relevant persons here
For at least 200 years courts have paid special attention to the need to protect the identity of informers. This is not solely because of concerns as to their physical safety. There is also a significant issue in relation to the administration of justice.
In Royal Women’s Hospital v Medical Practitioners Board of Victoria[14] this Court said:
The identity of an informer has been protected against disclosure in order to prevent damage to the administration of criminal justice since Eyre CJ laid down the rule in R v Hardy in 1794. The rule was reaffirmed in 1846 in Attorney-General v Briant. In D v National Society for the Prevention of Cruelty to Children, Lord Diplock said that by the time of Marks v Beyfus this had ‘hardened into a rule of law’.
In Attorney-General (NSW) v Stuart, Hunt CJ at CL gave the rationale for the rule as being that, if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime; this being part of a broader public interest, the maintenance of social peace and order …
[14](2006) 15 VR 22 (citations omitted).
In this context, there is an important difference between the position of Ms Gobbo, whose identity this Court determined could and should be disclosed, and that of the relevant persons.
Ms Gobbo’s conduct, and that of associated police, was described by the High Court as reprehensible. It was certainly not conduct which the law is concerned to encourage and protect.
The relevant persons, by contrast, on the present material, have done the very thing which the law has long held must be encouraged and protected. They have cooperated with authorities and given evidence against other criminals, or agreed to do so. They have advanced the administration of justice by doing so. They have imperilled their own physical safety and that of their families by doing so.
The distinction between Ms Gobbo’s position and that of the ‘ordinary case involving … a police informer’, is important.
Review of the suppression orders — applicable principles
Whilst the parties before us accepted the analysis of the manner in which the provisions of the Inquiries Act and Witness Protection Act operated in the relevant context, as we have previously described it, they differed on the approach to be taken to the application for revocation or variation of the suppression orders, under s 15 of the Open Courts Act, or the inherent jurisdiction of the Court.
Counsel for the applicant and the media companies submitted that once a review of the relevant orders was sought the ‘burden of persuasion’ was upon those resisting revocation or variation to satisfy the Court that continuation of the orders was ‘necessary’ upon one or more of the grounds in s 18 of the Open Courts Act 2013. Counsel for the Chief Commissioner, supported by counsel for the relevant persons, submitted that the Court should proceed on the basis that the requisite necessity had been established when the orders were made and that those seeking revocation or variation had the ‘burden of persuasion’ that that necessity no longer existed.
Prior to the Open Courts Act applications to revoke or vary suppression orders were determined applying the same considerations as were applicable when such orders were initially sought.
This approach was implicitly, but clearly, adopted by Teague J in R v Pomeroy.[15]
[15][2002] VSC 178 [7], [11], [13].
In Herald and Weekly Times Limited v Magistrates’ Court of Victoria,[16] Whelan J, in the context of an application for judicial review of a magistrate’s decision to refuse an application to ‘lift’ a suppression order she had earlier made, said:
As was done by Teague J in Pomeroy, when considering whether an order should continue, the same considerations ought to apply as apply when considering whether an order should be made.[17]
[16][2004] VSC 194.
[17]Ibid [41].
In Herald and Weekly Times v Director of Public Prosecutions[18] Kaye J was considering an application for judicial review of a County Court judge’s order refusing to vacate a suppression order previously made. In that context Kaye J accepted a submission made that in order for the County Court judge to have jurisdiction ‘to continue the earlier suppression order made by him, he needed to be appropriately satisfied that such an order was “necessary” for one or more of the purposes stipulated in’ the relevant legislation.[19]
[18](2007) 170 A Crim R 313.
[19]Ibid [22].
The authorities referred to did not concern s 15 of the Open Courts Act. They were decided prior to the Open Courts Act. Nevertheless, in our opinion the principles are the same. As was the position before the Open Courts Act, the relevant test is one based upon necessity. Once an application is made for review, the Court must be persuaded that continuation of the order is necessary by reference to the same considerations as would apply on the initial application for such an order. The Open Courts Act reforms and consolidates the previous law and provides for the criteria to be applied whenever a suppression order is reviewed.
In substance, therefore, we accept the approach of the applicant and the media companies on the issue of the principles to be applied when considering whether to revoke or vary the suppression orders. Unless the Court is satisfied that the orders are necessary for one of the reasons now provided for in s 18 of the Open Courts Act the order should be revoked, or should be varied so as to reflect such necessity as is established at the time of the review.
Application under s 10 of the Witness Protection Act and for a declaration — analysis
In the further amended application the applicant seeks authorisation under s 10(7) of the Witness Protection Act broadly abrogating, in effect, the prohibition in s 10(5). Each alternative authorisation sought is an authorisation for ‘any person’, and is unconfined as to the circumstances of the disclosure. The principal authorisation sought would permit any disclosure by any person in any context, other than a disclosure of a new identity or by way of an image. The pseudonym alternative would still authorise identification of the person concerned, given the terms of the proposed order and the wide meaning given to the concept of ‘identity’ in the Witness Protection Act, but not by name. In a related application, the applicant also seeks a declaration as to the effect of s 34 of the Inquiries Act.
Insofar as the application under s 10(7) assumes that the prohibition on disclosure in s 10(5) constitutes a reasonable excuse for refusing to provide information to the Royal Commission, that assumption is incorrect. If s 10(5) does not constitute a reasonable excuse, it is difficult to see what justification there could be for an authorisation under s 10(7), especially of the breadth sought here in the further amended application.
Senior counsel for the applicant, confronted with this position, attempted to persuade the Court that a broad authorisation was appropriate in order to eliminate potential uncertainty and to protect related or ‘flow on’ disclosures which did not fall within s 34 of the Inquiries Act. In our view, that is an inadequate justification for the breadth of the authorisation sought.
The express statutory purpose and objective of the Witness Protection Act, being the facilitation of the security of persons who have been witnesses in criminal proceedings with the objective of giving practical effect to the traditional protection of such persons, is most important. The protections provided by the Witness Protection Act ought to be abrogated only in circumstances where there is a compelling justification for that course.
Section 10(5) does not fall within the description of the provisions in s 34 of the Inquiries Act upon which a person can rely in refusing or failing to comply with a requirement of the Royal Commission. When acting in accordance with such a requirement, the person disclosing is not subject to any sanction, and any statutory prohibition does not apply to the Royal Commission.
In circumstances where the prohibition on disclosure does not apply to the Royal Commission in accordance with s 34 of the Inquiries Act, and where s 10A of the Witness Protection Act expressly provides for how certain of the critical information is to be dealt with by a Royal Commission, we can see no basis for the broad abrogation of the protection for which the Act provides in s 10(5), as sought in the further amended application, either so as to resolve asserted uncertainty or so as to protect ‘flow on’ disclosures not already protected by the legislation.
As to the application for a declaration, it must be dismissed because there is no relevant controversy. No party before us contended that s 34 of the Inquiries Act did not relevantly apply, notwithstanding s 10(5) of the Witness Protection Act. It was not suggested that any person in proceedings before the Royal Commission had claimed s 10(5) of the Witness Protection Act as a reasonable excuse for failing or refusing to provide information. The declaration sought is moot.
Application for revocation or variation of the suppression orders — analysis
As this Court has recognised, there is a high public interest in permitting the Royal Commission to conduct a detailed and thorough analysis of all of the matters underlying the conduct in which Ms Gobbo and Victoria Police are alleged to have engaged.
The affidavit material filed on behalf of the applicant indicates that the Commission intends to hear and determine submissions made concerning whether matters should be dealt with in closed hearings or whether suppression orders should be made under s 24 or s 26 of the Inquiries Act or under s 10A of the Witness Protection Act, but that the suppression orders significantly impair the Commission’s ‘ability to determine what should and should not be made public’.
It seems to us that the provisions of the Inquiries Act, and the Witness Protection Act, reveal a legislative intention that a Royal Commission should have both the power, and the responsibility, to protect the position of persons to whom the provisions of the Witness Protection Act apply.
Protection of the safety of informers is always, and has long been, a matter of great importance. The relevant persons here, and their families, are at significant risk. So much was accepted by the applicant in the submissions before us. The submission put by the applicant in that regard was that the orders ought to be revoked because the risk to which the relevant persons and their families are exposed will not be increased by revocation. The applicant particularly relied in that respect upon this Court’s observations about increased risk in relation to Ms Gobbo in AB v CD — CoA 2019.
We accept what was said in this regard in AB v CD — CoA 2019, but we also adopt Nettle J’s formulation of the proper approach to the issue of safety in AB v CD — HC 2019. We do not see any inconsistency between the two expositions of the relevant principles. To adopt Nettle J’s words, the requisite necessity is sufficiently established where, upon the evidence, the Court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can be regarded as acceptable. Nettle J’s qualification ‘without the order sought’ embraces the issue of ‘increased’ risk addressed by this Court. If the risk is relevantly unaffected by the existence or otherwise of the order, its continuation could not be found to be necessary.
The evidence before the Court here is that revocation of the suppression orders will increase the risk to the relevant persons and their families. Whilst submissions have been made against that conclusion on behalf of the applicant, the evidence itself is unchallenged.
In our view, there is a continuing necessity which precludes revocation of the orders. The question of variation, however, raises different considerations.
The Inquiries Act and the Witness Protection Act address the issues also addressed by the suppression orders within the specific context of a Royal Commission. The Inquiries Act expressly provides that a Court order is a basis for claiming a reasonable excuse not to comply with a notice from a Royal Commission, but the statutory protections in the Witness Protection Act are not. The Witness Protection Act imposes a ‘default position’ upon a Royal Commission where information as to identity may be disclosed, but that position is subject to the Royal Commission’s power to depart from the ‘default position’ if it considers that to be in the interests of justice. The Inquiries Act also gives the Royal Commission wide powers to proceed in private and to make non-publication orders. The considerations concerning informers which we have described are an obvious basis upon which such orders would be made, when appropriate, and the material deposed to on behalf of the applicant positively asserts that that is what the applicant intends to do.
The fact that the applicable legislation, in effect, puts the way in which the relevant issues are to be addressed into the hands of the Royal Commission itself, with ample power to protect information needing to be protected, leads us to the conclusion that it is not necessary for orders of this Court to impose additional restrictions or prohibitions.
Accordingly, we propose to order that each of the suppression orders be varied so as to add a proviso to the effect that nothing in the order prevents the disclosure of information by a person to the Royal Commission into the Management of Police Informants, or any disclosure of information by that Royal Commission, in accordance with the provisions of the Inquiries Act and the Witness Protection Act.
The further alternatives
Late in the hearing the possibility of more confined alternative orders to those sought in the application was advanced by senior counsel for the applicant. She handed up a document headed ‘Proposed orders’ which read:
1.Pursuant to s 15(3)(a) of the Open Courts Act 2013 (Vic), an order varying the suppression orders in the Annexure such that the orders do not apply to any information, evidence, documents or other things:
(a) given or provided to the Royal Commission by any person;
(b)given or provided by any person to any person in a hearing of, or for the purposes of participating in, the Royal Commission; or
(c) published or released in any form by the Royal Commission.
2.Pursuant to s 10(7)(a) of the Witness Protection Act 1991 (Vic), an order authorising the disclosure of the identity of each of the [relevant persons]:
(a) by any person to the Royal Commission;
(b)by any person for the purposes of preparing to address, or participate in, the Royal Commission;
(c) by the Royal Commission; or
(d)by any person to the extent that the disclosure is of information that has been published or released by the Royal Commission.
As indicated earlier, the parties had little opportunity to consider these alternative proposals, and no submissions of substance were advanced by any party in relation to them.
In substance, we have concluded that the relevant legislation, particularly ss 12, 18, 24, 26 and 34 of the Inquiries Act and s 10A of the Witness Protection Act, sets out a regime which applies in relation to information of the kind in issue here before a Royal Commission. In our view that regime should apply. To the extent that the proposal replicates that regime, the order is unnecessary. To the extent the proposal would alter that regime, we are unpersuaded that that should be done.
As to the suppression orders, the proposal to a significant extent reflects the variation we have concluded should be made, save that in our view the variation should make it clear that the disclosure to be excluded from the orders is disclosure in accordance with the Inquiries Act and the Witness Protection Act.
Conclusion
The application will be allowed in part. Subject to hearing the parties on the precise form of the order, we propose to order that each of the suppression orders be varied in the manner we have set out. Otherwise, the application will be dismissed.
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