David Glass (a pseudonym) v Chief Examiner - [2014] VSC 507

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 3546

DAVID GLASS (A PSEUDONYM)	Plaintiff
v
CHIEF EXAMINER	First Defendant
- and -
COUNTY COURT OF VICTORIA	Second Defendant
- and -
DIRECTOR OF PUBLIC PROSECUTIONS VICTORIA	Third Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2014
DATE OF JUDGMENT:	17 October 2014
CASE MAY BE CITED AS:	David Glass (a pseudonym) v Chief Examiner & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 507

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JUDICIAL REVIEW – Application for extension of time – Rescission of non-publication direction to enable coercively obtained evidence to be used in a prosecution– Plaintiff contends that rescission ultra vires – Arguable case – Issues of public importance - No adequate explanation for delay – Publication already occurred and no further prejudice to the plaintiff shown - Prejudice to the public interest shown if extension granted – Application refused – Major Crime (Investigative Powers) Act 2004 – r 56.02 Supreme Court (General Civil Procedure) Rules 2005

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Todd	Theo Magazis & Associates
For the First Defendant	Mr R Niall QC with Mr A Imrie	Office of the Chief Examiner
For the Third Defendant	Mr P D’Arcy	Craig Hyland, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction......................................................................................................................................... 3

Test for extension of time................................................................................................................. 6

Facts....................................................................................................................................................... 7

Major Crime (Investigative Powers) Act 2004................................................................................. 7
Obtaining evidence from Mr Glass............................................................................................ 8
Application to rescind the direction and confidentiality notice.......................................... 10
Communication of the rescission decision to the plaintiff................................................... 13
Publication of the plaintiff’s evidence..................................................................................... 14
Notification that the plaintiff would be called as a witness................................................. 15

Parties’ submissions and discussion............................................................................................ 17

Delay............................................................................................................................................. 17
Prospects of success.................................................................................................................... 26
Prejudice to the defendants....................................................................................................... 30
Public interest.............................................................................................................................. 31
Injustice or prejudice to the plaintiff and utility.................................................................... 32

Conclusion......................................................................................................................................... 36

HER HONOUR:

Introduction

The plaintiff is known in these reasons by a pseudonym. He seeks judicial review of a decision in 2012 by a delegate of the first defendant the Chief Examiner to rescind[1] a non-publication direction previously made in relation to evidence the plaintiff gave at coercive hearings in 2010. The third defendant was joined in respect of the subsequent publication of that evidence by the Office of the Solicitor for Public Prosecutions to the solicitor for an accused in a criminal trial. In these reasons that accused will be referred to as ‘FD’.
[1]The decision of the Examiner and the authorities to which the parties have taken me principally use the word ‘rescind’ to describe the unmaking of the direction, but on occasion also use the word ‘revoke’. In these reasons, I use ‘rescind’ but intend the words to mean the same.

The originating motion seeking judicial review was filed on 11 July 2014. The non-publication direction was rescinded on 1 August 2012. Rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2005 provides in sub-rule (1) that the time for commencing judicial review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 507
Decision Date: 17 October 2014

CaseChat Overview and Summary

David Glass (a pseudonym) sought judicial review of a decision by the Chief Examiner to rescind a non-publication direction, enabling evidence obtained under duress to be used in a prosecution. Glass contended that the rescission was beyond the Chief Examiner's powers. The court considered whether Glass had an arguable case, whether the issues were of public importance, and whether there was an adequate explanation for the delay in bringing the application. The court found that Glass had an arguable case and that the issues raised were of public importance. However, the court found no adequate explanation for the delay in bringing the application, especially since publication had already occurred and no further prejudice to Glass was shown. Furthermore, the court found that granting the extension would prejudice the public interest. Consequently, the application for an extension of time was refused.

The legal issues before the court were whether the Chief Examiner's decision to rescind the non-publication direction was ultra vires and whether the application for an extension of time should be granted. The court examined the relevant statutory provisions, specifically the Major Crime (Investigative Powers) Act 2004, and the rules under the Supreme Court (General Civil Procedure) Rules 2005. The court needed to determine whether the Chief Examiner exceeded their powers by rescinding the direction and whether there were grounds to extend the time limit for the application. The court also needed to weigh the potential prejudice to the plaintiff against the public interest in allowing the coercively obtained evidence to be used in the prosecution.

The court found that while Glass had an arguable case and the issues were of public importance, there was no adequate explanation for the delay in bringing the application. The court noted that publication had already occurred, and no further prejudice to Glass was demonstrated. However, the court highlighted that allowing the application would prejudice the public interest by potentially hindering the prosecution based on evidence obtained under duress. The court considered the need to balance the rights of the individual against the broader public interest, ultimately deciding that the application for an extension of time should be refused. The court's decision emphasised the importance of timely applications and the need to protect the public interest in criminal proceedings.

Orders