Chief Commissioner of Police v ABC (No 2)
[2011] VSC 48
•23 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6023 of 2010
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| ABC | Defendant |
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JUDGE: | J. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2011 | |
DATE OF JUDGMENT: | 23 March 2011 | |
CASE MAY BE CITED AS: | Chief Commissioner of Police v ABC (No 2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 48 | |
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COURTS – PRACTICE AND PROCEDURE – Disclosure of information relevant to previous identity of the witness – Witness Protection Act 1991 (Vic), s 10(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E M Nekvapil | Victorian Government Solicitor |
| For the Defendant | Mr S Estcourt SC | Lennon Mazzeo |
HIS HONOUR:
Introduction
In my judgment of 22 December[1] I determined that the Court should supervise the dissemination of information which (absent an order of the Court) would contravene the provisions of s 10(1) of the Witness Protection Act.[2]
[1][2010] VSC 582R.
[2]Referred to subsequently as “the Act”.
It was determined that the role of the Court as gleaned from the underlying purpose of the Act is to undertake a gatekeeper function, reviewing and determining what information is to be provided to the Firearms Appeals Committee,[3] referable to ABC under his former identity.
[3]Referred to subsequently as “the Committee”.
On 21 February I heard submissions from counsel for the Chief Commissioner and ABC in relation to documents and other material which should be provided to the Committee for its determination as to whether ABC is a fit and proper person to hold a firearms licence.
There was little common ground between the parties. Each made minor concessions (the Chief Commissioner moreso than ABC)[4] as to what should and should not be disclosed to the Committee. As will become apparent, I regard the positions taken by each of the parties to be extreme and, in conformity with the principles which I will set out in a moment, I find that a considerable body of material should be provided to the Committee, though not as voluminous as that argued for by the Chief Commissioner.
[4]The Chief Commissioner did not persist in seeking disclosure to the Committee of the material under tabs 21-25 of the folder provided to the Court.
Submissions of the parties
I hope I do no disservice to counsels’ helpful and succinct submissions by summarising them as follows.
Counsel for the Chief Commissioner argued that the public interest was paramount insofar as it related to promoting the aims of the Firearms Act 1996 (Vic).This required, he said, that all material arguably relevant to the determination of the Committee should be provided to it. He submitted that as this was a review of the Chief Commissioner’s decision (with the Committee standing in the shoes of the Chief Commissioner) then any relevant information as to ABC’s fitness to hold a firearms licence should be provided to the Committee, regardless of the basis upon which the Commissioner reached his decision. He accepted that a balancing exercise between the aims of both pieces of legislation was necessary but argued that only material which was patently prejudicial to the safety of Mr ABC should be withheld. He emphasised the fact that the material was being disseminated to a very small audience which could be trusted to handle the information confidentially.
Counsel for ABC argued that any information to be disclosed to the Committee “must cogently advance the relevant public interest”, and be “precisely characterised”. He also relied upon legislation underpinning the public interest, in this case the Act, to justify those propositions. He contended that the information provided should be confined in volume and extent to minimise the risk of leakage. He then submitted that in any analysis of the documents to be provided to the Committee only those containing primary facts and firsthand expert opinion should be disclosed. He said that material relating to offences which had not been proved should not be provided, nor should non-expert opinions or conclusions of others.
What principles should govern the dissemination of information which would, absent an order of the Court, contravene the Act?
As I observed in my earlier ruling, there is no guiding light (indeed no light at all) from the legislature as to the considerations which should inform an order being made under s 10 of the Act. However, some guidance can be obtained from the purpose of the Act which is:
…to facilitate the security of persons who are or have been witnesses in criminal proceedings in Victoria or elsewhere in Australia.[5]
Further, the provisions of s 10 of the Act which, in effect, make it an offence to disclose any information concerning the previous identity of a witness who has been a participant in the program demonstrate that the protection of the previous identity of the witness is a matter of significance in determining what material will be released and in what form. Indeed, Beach J recently noted, the clear purpose of the Act is to ensure that witnesses will come forward knowing that they and their families will “be protected at all times against retribution that might be taken by others[6] learning of their participation in the programme”.
[5]Section 1 of the Act.
[6]Chief Commissioner of Police and anor v Herald and Weekly Times Ltd [2010] VSC 164 [13]. See also paras [28]-[31] of reasons in Chief Commissioner of Police v ABC [2010] VSC 582R.
On the other hand, there is the public interest underpinning the provisions of the Firearms Act in ensuring that only appropriate people are licenced to hold firearms. One of the purposes of that Act is:
To give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace.[7]
Fulfilment of this purpose is facilitated by measures such as the firearm licencing system, storage of firearms and the registration of firearms. It is patently in the public interest to ensure that a person applying for a firearms licence meets the criteria set out in the Firearms Act.
[7]Section 1 Firearms Act 1996.
It is necessary now to say a little more about the role of the Committee and the background to this application for review. ABC’s Category A and B Longarms licence was suspended in October 2009, and a cancellation under s 49 of the Firearms Act served upon his solicitors on 26 March 2010. His application to the Committee to review the decision was lodged on 29 June 2010 and will be heard once this proceeding is completed.
The Committee, when undertaking a review, in effect stands in the position of the Commissioner in reviewing his decision on the material adduced before it.[8] Section 49(1) sets out the criteria to be applied by the Commissioner, and necessarily, by the Committee when undertaking a review in relation to the cancellation of a licence. It includes:
[8]See s 166 and also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 in relation to the Administrative Appeals Act (Cth).
(c)The holder has knowingly supplied false or misleading information and material particular in, or in connection with the application for the licence or renewal of the licence
…
(f)the holder of the licence or any responsible person in relation to the licence is no longer a fit and proper person.
It follows that information relevant to whether ABC is a fit and proper person to hold a licence and as to whether he has misled the Commissioner in obtaining the licence are relevant matters to be considered by the Committee.
In endeavouring to reconcile these potentially conflicting public interest considerations relevant to two discrete pieces of legislation, I think the following criteria should be applied:
(a)A court must be cautious in releasing information concerning the previous identity of a witness, notwithstanding that the dissemination may be to a small trustworthy group;
(b)That information should be released only where there is a public interest that compels its disclosure;
(c)As a general rule, the less information that is disseminated, the lesser the risk of the disclosure of the witness’s previous identity and, commensurately, the risk of others apprehending a potential link to his or her current identity is reduced;
(d)Where the information is to be disclosed to a decision-making body, such as the Committee, it should only comprise material which will be cogent, not just peripherally relevant to that body’s determination (in this case as to whether the impugned decision of the Commissioner should stand);
(e)A relevant consideration in determining what material is to be disseminated is its likely use by the recipient. To put it more plainly, it would be a pointless exercise to disseminate inadmissible material to the Committee if it was, for example, bound by the provisions of the Evidence Act. On the other hand, where (as is the case here) the Committee is not bound by the rules of evidence and the Committee can inform itself as it sees fit,[9] then many forms of information may be both relevant and cogent. This militates against the suggestion made by counsel for ABC that only “first hand” material be provided;
(f)The persons or body to whom the information is disseminated is a relevant consideration. There is, I think, no likelihood that the Committee will deal with this material in other than a sensitive way. One would expect the consideration of this material to take place in a closed hearing, with directions to be given as to the information remaining confidential. That, in my view, is a relevant consideration and can be compared to the situation where the information is provided, for instance, in an open court to be reported upon freely by the media.
[9]Firearms Act s 166.
Taking into account these various matters, I have reached the following conclusions applicable to the documents which I have examined:
(a)Only information that is truly relevant and cogent to the decision making process of the Committee should be released.
(b)That information, however, is not limited to “first hand” documents, but rather extends to any material determined to be cogent to the Committee’s decision making process. In this case it, therefore, includes material relevant to ABC’s psychological state, prior convictions, involvement in criminal activities, use and handling of firearms, prior applications for firearms licences, material relevant to the cancellation or suspension of previous licences, or the refusal of applications for firearms licences.
(c)It is not my task to determine whether any or all of this information ultimately will or will not be admissible before the Committee. That is a decision the Committee will make.
Having applied these considerations, I attach a schedule which details the documents to be provided to the Committee.[10]
[10]The schedule does not form part of these reasons and is not attached.
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