Chief Commissioner of Police v YYY

[2013] VSC 473

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 06832

CHIEF COMMISSIONER OF POLICE	Plaintiff
v
YYY	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2013
DATE OF JUDGMENT:	2 September 2013
CASE MAY BE CITED AS:	Chief Commissioner of Police v YYY
MEDIUM NEUTRAL CITATION:	[2013] VSC 473

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COURTS – Practice and procedure – Application to Supreme Court for order for disclosure of information – Witness protection program – Former participant in witness protection program – Disclosure of information relevant to previous identity of participant in witness protection program – Witness Protection Act1991, s 10.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R. Orr	Victorian Government Solicitor’s Office
For the Defendant	In person

HIS HONOUR:

1. The defendant, YYY, was a participant in the Victorian Witness Protection Program established pursuant to the provisions of the Witness Protection Act1991. In June 2011, the defendant made an application to the Chief Commissioner of Police for a private security individual operator licence pursuant to s 15 of the Private Security Act2004. On 31 January 2012, this application was refused. The application was refused because the defendant failed to meet the probity requirements contained in ss 25(1)(a) and (b) and 25(2)(a) of the Private Security Act.[1]

   [1]Section 25 of the Private Security Act relevantly provides:

   “(1)The Chief Commissioner must not grant a private security individual operator licence if –

   (a)he or she is satisfied that the granting of the licence is not in the public interest;  or

   (b)he or she is not satisfied that the applicant meets the probity requirements set out in sub-section (2);

   …

   (2)For the purposes of sub-section (1)(b) the probity requirements are that the person –

   (a)is fit and proper; …”

1. Section 150 of the Private Security Act permits a person, whose interests are affected by a decision refusing an application to grant a private security licence, to apply to the Victorian Civil and Administrative Tribunal for a review of that decision.  In February 2012, the defendant applied to review the decision to refuse his application for a private security individual operator licence.

1. In this proceeding, the plaintiff seeks:

1.An order, pursuant to section 10(1)(c) of the Witness Protection Act1991, requiring the Plaintiff, in the event that the Defendant continues with his application to the Victorian Civil & Administrative Tribunal for review of a decision made on 31 January 2012 to refuse his application for an Individual Private Security Licence, to disclose to the Victorian Civil & Administrative Tribunal the documents that comprise Exhibit RMT-3 to the Affidavit of Ralph Miles Tyler sworn on 7 December 2012 and Exhibit AME-2 to the Affidavit of Anna Marie English sworn on 7 December 2012.

2.An order, pursuant to section 10(5) of the Witness Protection Act 1991, authorising the Plaintiff, in the event that the Defendant continues with his application to the Victorian Civil & Administrative Tribunal for review of a decision made on 31 January 2012 to refuse his application for an Individual Private Security Licence, to disclose to the Victorian Civil & Administrative Tribunal the documents that comprise Exhibit RMT-3 to the Affidavit of Ralph Miles Tyler sworn on 7 December 2012 and Exhibit AME-2 to the Affidavit of Anna Marie English sworn on 7 December 2012.

1. Exhibit RMT-3 to the affidavit of Ralph Miles Tyler sworn on 7 December 2012 is a collection of documents (“the Tyler documents”) that was before the decision-maker who rejected the defendant’s application.  Exhibit AME-2 to the affidavit of Anna Marie English sworn on 7 December 2012 is a record of the reasons for the decision rejecting the defendant’s application (“the English document”).  During the hearing this morning, the Tyler documents, which contain redactions, were further redacted by deleting the names on pages 271 and 302 thereof.

1. The plaintiff wishes to place the Tyler documents and the English document before the member hearing the defendant’s review application. Absent any legislative barrier, these documents would form part of the material upon which any review at VCAT would fall to be conducted. Indeed, s 49 of the Victorian Civil and Administrative Tribunal Act1998 requires the decision-maker’s statement of reasons provided for by s 46 of that Act and “every other document in the decision-maker’s possession that the decision-maker considers is relevant to the review of the decision” to be lodged with VCAT for the purposes of the review of the original decision.[2]

   [2]See further, Transport Accident Commission v Bausch [1998] 4 VR 249 (Tadgell, Batt and Buchanan JJA).

1. The plaintiff makes the present application because of the provisions of s 10 of the Witness Protection Act. Specifically, the plaintiff is concerned that there be no breach of ss 10(1) and (5) of that Act. Those sections provide:

(1)A person must not, either directly or indirectly, make a record of, disclose, or communicate to another person any information relating to the making of an entry in the register of births or the register of marriages under this Act, unless it is necessary to do so –

(a)for the purposes of this Act;  or

(b)for the purposes of an investigation by the IBAC;  or

(c)to comply with an order of the Supreme Court.

…

(5)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.

…

1. In Chief Commissioner of Police v ABC[3] and Chief Commissioner of Police v ABC (No 2),[4] J. Forrest J had to consider a similar application in relation to the disclosure of information, arguably protected by the Witness Protection Act, to the Firearms Appeals Committee.  After analysing a number of decisions concerning the Witness Protection Act,[5] J. Forrest J enunciated a number of propositions concerning the disclosure of information about the identity of a person who is or has been a participant in the witness protection program.  His Honour said:

(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, 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.[6]

[3](2010) 31 VR 176.

[4](2011) 31 VR 176, 188.

[5]Re a former protected witness [2006] VSC 291 (Byrne J); R v JP [2008] VSC 86 (Whelan J); DPP & Anor v Dale & Ors (2010) 30 VR 282 (Beach J); Chief Commissioner of Police & Anor v The Herald & Weekly Times Limited (2010) 30 VR 296 (Beach J). See further, InTheMatterOfAnApplicationByTheChiefCommissionerOfPolice [2013] VSC 283R (Curtain J).

[6]Chief of Commissioner of Police v ABC (No 2) (2011) 31 VR 188, 190 [13] (footnote omitted).

1. In Chief Commissioner of Police v ABC,[7] J. Forrest J was somewhat critical of the fact that the Chief Commissioner “chose not to provide the court with any of the information that he proposed to put before the [Firearms Appeals] Committee”.[8] In the present case, the plaintiff has identified with precision the information he proposes to put before VCAT. The information is constituted by the Tyler documents and the English document. Having read these documents, I can say without disclosing any information that ought not be disclosed, that they are plainly relevant to the matters referred to in ss 25(1)(a) and (b) and 25(2)(a) of the Private Security Act, and upon which matters the defendant’s application was refused.[9] Apart from anything else, the documents disclose a criminal history, the extent or otherwise of which is relevant to the question of whether the defendant is fit and proper within the meaning of s 25(2)(a) of the Private Security Act.

   [7](2011) 31 VR 176.

   [8]Ibid 186 [41].

   [9]Necessarily, I say no more in this judgment, lest any detail published herein might identify the defendant or compromise his security (cf s 10(5) of the WitnessProtectionAct).

1. The plaintiff seeks orders that would place the Tyler documents and the English document before the member hearing the defendant’s application for the review of the decision to refuse the defendant’s application for a private security individual operator licence.  There is, I think, no likelihood that the VCAT member would deal with this material in other than an appropriate way.  Consistently with the provisions and underlying objectives of the Witness Protection Act, 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.  Like J. Forrest J in Chief Commissioner of Police v ABC (No 2),[10] I regard this as a relevant consideration in the determination of the present application. The fact that the material also constitutes material which s 49 of the Victorian Civil & Administrative Tribunal Act 1998 requires to be provided for the purpose of the review also militates in favour of the granting of the present application.

   [10](2011) 31 VR 176, 188.

1. In the circumstances, I am persuaded that, to the extent necessary,[11] there should be orders requiring and authorising the plaintiff, in the event that the defendant continues with his review application at VCAT, to disclose to the member hearing that application, the Tyler documents, as redacted, and the English document.

   [11]I say to the extent necessary, because it may be that much of the information in the Tyler documents and the English document could be disclosed without breaching any provision of the WitnessProtectionAct.

1. I will hear the parties as to an appropriate form or order and any question of costs.