David Glass (a pseudonym) v Chief Examiner

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 proceedings is ‘within 60 days after the date when grounds for the grant of the relief for remedy claimed first arose’. By sub-rule (2), that date is taken to be 1 August 2012. Accordingly, the time for the commencement of judicial review proceedings expired on 30 September 2012. The originating motion is accordingly more than 21 months out of time. The Court has power to extend the time for the commencement of judicial review proceedings, but by virtue of sub-rule (3) of Rule 56.02 the Court is prohibited from extending that time ‘except in special circumstances’.

These reasons concern the plaintiff’s oral application to extend time. That application was not made in the originating motion or summons for directions filed on 23 July 2014. It was first flagged at the directions hearing on 2 September 2014. By orders that day, I dispensed with the filing of an amended summons making the application for extension of time and listed the application for extension for hearing on 12 September 2014, with a short timetable for affidavits. The first defendant and the proposed third defendant subsequently filed affidavits in opposition to the extension. I heard the application on 12 September 2014 after dealing first with two preparatory matters.

The first of these preparatory matters was the determination of an application by the plaintiff for a proceeding suppression order. That application was also made orally by counsel for the plaintiff and without adherence to the notice requirements of the Open Courts Act 2013. I made an interim order on 12 September 2014 in these terms:

Pending further order, there be no further publication other than to the parties and their legal representatives of the fact of the application made by the plaintiff’s originating motion or the content of any document filed in the proceeding or submission put or evidence adduced in the course of the proceeding.

The intention of this interim suppression order was to preserve the subject matter of the proceeding, but not determine the substantive application until such time as the Court had been able to notify news media organisations of the application. I listed the substantive application for a proceeding suppression order for Wednesday 24 September 2014. On that day I determined the substantive application, rescinded the interim proceeding suppression order made on 12 September 2014 and made more limited orders by way of a proceeding suppression order. The prohibition imposed by my orders on 24 September 2014 is in these terms:

Further publication of any information that is derived from this proceeding that identifies the plaintiff or the accused in the criminal trial in which the plaintiff’s evidence is sought to be used, or the content of that evidence, is prohibited pursuant to s 17 of the Open Courts Act.

By that order, the prohibition applies in the State of Victoria and its purpose is stated as being to prevent this proceeding being rendered nugatory by further publication of the identity of the plaintiff or the content of his evidence. The orders made 24 September 2014 indicate that to give effect to the principal order the following means are to be employed:

(i)The use of pseudonyms for the plaintiff and the accused in the title of the proceeding and Court documents;
(ii)The restriction of access to any portion of the Court file to the parties and their legal representatives; and

(iii) By redaction of information, if necessary, in published reasons.

The proceeding had been filed in the plaintiff’s true name. The use of pseudonyms for the plaintiff and the accused commenced from that order. Accordingly, in these reasons the plaintiff and the accused in whose trial the plaintiff’s evidence is sought to be used (‘FD’) are identified by pseudonyms only and information that may identify them or the content of the plaintiff’s evidence will be redacted prior to publication of the reasons other than to the parties.

The proceeding suppression order made 24 September 2014 expires at the conclusion of the 21st day after the determination by orders of this proceeding.

The second preparatory matter that I dealt with prior to hearing the application for extension of time was the plaintiff’s oral application that I recuse myself. That application arose in this way. The third defendant had been represented on 2 September 2014, although not then a party, and was on notice that in all probability he would be joined. Formal leave to join the third defendant and amend the originating motion in the form of the proposed amended originating motion filed and dated 2 September 2014 was given on 12 September 2014. In the expectation that that leave would be given and joinder made, the third defendant filed an affidavit opposing the extension of time on 10 September 2014. That affidavit is affirmed by Katrina Anne Richter, the solicitor at the Office of Public Prosecutions instructing in the trial of FD. It contains allegations of facts said by the third defendant to militate against the plaintiff’s claim that he was unaware until recently that the prosecution intended to call him as a witness to use his coercively obtained evidence in the criminal trial of FD.[2]
[2]Affidavit of Katrina Anne Richter solicitor affirmed 10 September 2014, at [62] and following.

I am aware that Ms Richter is the partner of one of my former associates, and in that capacity I have met her briefly some years ago. I caused the parties to be put on notice of these matters in the afternoon of 11 September 2014. They were advised, and I confirm it to be correct, that I have met Ms Richter but do not know her well and have not had any significant social contact with her. The purpose of that communication was to ascertain whether any of the parties had any objection to me hearing and determining the application for extension of time.

The plaintiff did take objection and made application on 12 September 2014 that I recuse myself. For reasons given orally on that day, I refused the application. Those reasons can be made available separately if required. For current purposes, it is only necessary to record that the plaintiff failed to satisfy the test for disqualification established by the High Court in Ebner v Official Trustee[3]. That test requires the applicant to show ‘how it is said that the existence of the “association”…might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits’.[4] The connection must be a ‘logical’ one,[5] by reason of which a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide’.[6] Here, my association with Ms Richter is a very limited one. Further, while her evidence is important, it is not disputed. There is no evidence to the contrary and the plaintiff did not seek to call her for cross examination. Accordingly, there is no issue of determination of disputed evidence given by her or assessment of her credit that could arise.
[3](2001) 205 CLR 337
[4]Ibid, at [30].
[5]Ibid.
[6]Ibid, at [33].

Test for extension of time

Rule 56.02(3) does not limit the matters that may be considered relevant in the consideration of ‘special circumstances’ to the reasons for failure to bring the explanation within time. The whole of the circumstances in the particular case must be considered. The parties referred me to authorities which have identified relevant matters as including the chances of the plaintiff being successful in the application (expressed in other authorities as whether the plaintiff has an arguable case), the injustice to the plaintiff if the order is allowed to stand, prejudice to the other party and difficulties in obtaining legal aid,[7] together with the length of the delay, the reason for the delay, and the public interest in the finality of litigation.[8] In Balmer and Associates v Victoria Legal Aid and anor,[9] after reviewing the authorities, I considered that the public interest in the determination of the issues in question may also be relevant. The requirement that the circumstances be ‘special’ means that that they must not be ‘general in character’ but something exceeding that which is ‘usual or common’.[10]
[7]Lednar and ors v The Magistrates’ Court and anor [2000] VSC 549, Gillard J at [143].
[8]Goodman v Victorian Civil and Administrative Tribunal and ors [2011] VSC 35 (‘Goodman’), Habersberger J at [29], cited by me in Balmer and Associates v Victoria Legal Aid and anor [2012] VSC 536 at [33].
[9]Ibid, at [32]-[36].
[10]Goodman, at [28].

I will discuss the parties’ submissions on these matters after first setting out the facts. The following account of the facts is drawn from the affidavits filed on behalf of the parties. There was no oral evidence and no cross examination. The evidence in the plaintiff’s case of the relevant events is extremely sparse. The plaintiff does not, however, dispute the more detailed accounts given by the affidavits filed on behalf of the first and third defendants.

Facts
Major Crime (Investigative Powers) Act 2004

The Major Crime (Investigative Powers) Act 2004 (‘the Act’) provides a process by which evidence may be obtained coercively from persons in relation to the investigation of organised crime. By s 5(1) of the Act a member of the police force may apply to the Supreme Court for a ‘coercive powers order’ if that member suspects on reasonable grounds that an organised crime offence has been, is being, or is likely to be committed. If such an order is made by the Supreme Court, the Chief Examiner or his authorised delegate may issue a witness summons to a person to attend an examination before the Chief Examiner or delegate to give evidence (s 15). The Chief Examiner may give to the witness so summoned notice that the summons is confidential, in which case the witness may not disclose the existence of the summons, the subject matter of the organised crime offence concerned, or any connected official matter, with limited exceptions (s 20). At the examination, which must be held in private (s 35), the witness may be legally represented (s 34) and may be examined on oath ‘on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates’ (s 36(1)). The witness is required to answer questions (s 37). The privilege against self-incrimination is expressly abrogated (s 39), although answers given are not admissible against that witness in a criminal proceeding with some limited exceptions.

By s 43 of the Act, the Chief Examiner may direct that evidence given, the contents of any document, or description of anything, produced to the Chief Examiner, any information that might enable a person who has given evidence before the Chief Examiner to be identified, or the fact that any person has given or may be about to give evidence as an examination must not be published or communicated except in a specified manner and to specified persons. The Chief Examiner is required by s 43(2) to give such a direction in certain circumstances being:

If the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be charged with an offence.

Sub-sections (4)-(6) inclusive of s 43 set out a procedure by which evidence subject to such a direction can be made available to a court, for the purpose of that court determining if the evidence should be made available to a person charged with an offence or a legal practitioner representing that person.

Section 65(4) of the Act permits the Chief Examiner to delegate to an Examiner any of his functions, duties or powers other than the power of delegation and the management of examiners.

Obtaining evidence from Mr Glass

A coercive powers order was made by Justice Coghlan of this Court on 15 July 2010 in respect of an offence of trafficking in a large commercial quantity of a drug of dependence. Certain persons were named in the coercive powers order as alleged offenders including the plaintiff and FD. The order was stated to remain in force for 12 months, and accordingly expired on 14 July 2011.

On 20 August 2010 the Chief Examiner delegated to a named Examiner amongst other functions, duties and powers his powers to issue witness summonses and conduct examinations in respect of that coercive powers order and in respect of the persons named within it. The Examiner issued a witness summons under s 15 of the Act accompanied by a confidentiality notice under s 20 of the Act directed to the plaintiff on 25 August 2010. The plaintiff attended for an examination on 7 September 2010 and 14 October 2010. The plaintiff was legally represented by counsel who was assisted by his instructing solicitor. The Examiner made a direction in writing pursuant to s 43(2) of the Act on 7 September 2010 which directed that:

(a) Any evidence given before the Examiner; or
(b)The contents of any document, or a description of anything produced to the Examiner; or
(c)Any information that might enable a person who has given evidence before the Examiner to be identified; or
(d)The fact that any person has given or may be about to give evidence at an examination –

must not be published or communicated except by the Chief Commissioner of Police exercising his or her right of information sharing as detailed in s 67 of the Major Crime (Investigative Powers) Act 2004 (the Act) or by members of the Victoria Police lawfully engaged in the investigation of an organised crime offence.
This Direction is made pursuant to the provisions of s 43(2) of the Act and I am satisfied that a direction must be made because a failure to do so might prejudice the fair trial of persons namely [certain persons were then named including the plaintiff] who have been charged with offences.

The plaintiff had been charged on 9 April 2009 with trafficking in a drug of dependence (being methylamphetamine) in not less than a large commercial quantity; trafficking in a drug of dependence (methylamphetamine); possession of that drug; possession of substances and equipment for the purpose of trafficking; and possession of a pre-cursor chemical. At the time of his examination by the Examiner he was on bail and his committal had not yet been held. He was subsequently committed on all charges. On 9 November 2011 he entered a guilty plea to one charge of trafficking in a drug of dependence in not less than a commercial quantity. He was sentenced on 22 March 2012 to a total effective sentence of five years with a non-parole period of two years six months.

On 16 July 2013 while the plaintiff was still serving his sentence a forfeiture order was made in respect of real estate which the plaintiff had transferred to another person for the consideration of ‘natural love and affection’ shortly prior to his arrest. On 23 June 2014 the plaintiff served the Office of Public Prosecutions with a notice of application for leave to appeal against sentence out of time. The basis of the application was the forfeiture of his property after he was originally sentenced. The application was not opposed and was granted by the Court of Appeal on 31 July 2014. The plaintiff was resentenced to imprisonment to four years and six months with a non-parole period of two years and three months. The plaintiff was released on parole on 18 August 2014.

Application to rescind the direction and confidentiality notice

Shortly after the plaintiff was convicted and sentenced Victoria Police applied to the Examiner to rescind the non-publication direction. The basis of which the application was made was said to be the conclusion of the prosecution against the plaintiff and the purpose for which the application was made was stated to be ‘for the purpose of utilising the evidence of [the plaintiff] in the [FD] prosecution’.

The Examiner then took steps to bring the application to the notice of the plaintiff. By this date, the solicitors who previously acted for the plaintiff when he was examined no longer acted for him. They had given notice to the Office of Public Prosecutions that they no longer acted for him in respect of the criminal proceedings against him on 20 December 2011. The next day a new firm of solicitors, Dean Cole & Associates, gave notice to the Office of Public Prosecutions that they now acted for the plaintiff. The solicitor’s name was given as Dean Cole. On 12 April 2012 the Examiner caused a letter to be hand delivered to Mr Cole which enclosed a letter directed to the plaintiff of that same date. The letter to the plaintiff contained the following paragraphs:

Investigating police have contact [sic] us and have requested that your evidence be made available for publication. They are seeking that the Examiner rescind the confidentiality arrangements for the purpose of using your evidence in a prosecution.
The Examiner is currently considering the application. This letter provides you with the opportunity to make submissions to the Examiner as to whether or not the confidentiality arrangements should be rescinded.

The letter gave the plaintiff the option of attending the office of the Chief Examiner to make oral submissions on 24 April 2012 or to make submissions in writing by that same date. The letter enclosed copies of two Supreme Court decisions which the letter stated ‘set out the current law in relation to what the Examiner must consider when deciding whether to rescind the confidentiality arrangements’. The letter also gave contact details.

A letter dated 18 April 2012 to Mr Cole, hand delivered on that date, advised that the time by which the plaintiff or his legal representative could make submissions had been extended to 1 May 2012. The reason for the extension was stated to be delay in serving the plaintiff personally with the letter. The enclosed letter to the plaintiff was in the same terms as the 12 April 2012 letter, save that the time for submissions was expressed to be 1 May 2012.

One of these letters was served personally on the plaintiff on 23 April 2012. According to the affidavit of Detective Acting Sergeant Jason Schubert sworn 24 April 2012, he delivered the letter of 10 April 2012 to the plaintiff.[11] That letter, of course, gave a deadline of the next day for submissions. Ms McKennariey, solicitor for the Office of the Chief Examiner, deposes that she believes the letter served was in fact the letter of 18 April 2012, which was identical in content to the earlier letter save that the date for submissions was 1 May 2012[12]. The plaintiff confirms that he received a visit from Detective Schubert who told him ‘(t)hat the police intended to get the evidence I gave to the Chief Examiner’. The plaintiff says this occurred ‘(i)n about April or May 2012’.[13]
[11]Exhibit KEM-9 to the affidavit of Kate Elizabeth McKennariey affirmed 10 September 2014.
[12]Affidavit of Kate Elizabeth McKennariey affirmed 10 September 2014, at [13].
[13]Plaintiff’s Further Affidavit in Support of the Application to Extend Time sworn 3 September 2014 (‘Further Affidavit’) at [5]. This affidavit was initially entitled his ‘Amended Affidavit’ and is referred to by that descriptor in the first defendant’s written submissions. The affidavit corrects errors in the plaintiff’s affidavit sworn 2 September 2014 but is otherwise identical to it.

In the event, nothing turns on which letter was served. The plaintiff’s solicitor Mr Cole made a submission on his behalf opposing the rescission, by letter dated 1 May 2012. The letter stated that the plaintiff had fears for his safety and prejudice to his reputation should the fact of his having given evidence and/or the contents of his evidence be released. Mr Cole also noted that the basis for the application was ‘a desire of the investigating police to use [the plaintiff’s] evidence in a prosecution’ which it was said was no sufficient basis. In particular, Mr Cole referred to one of the authorities that had been sent to the solicitor for the plaintiff, AJH v Chief Examiner,[14] in support of the proposition that the Act does not ‘provide a broad power to rescind for such a purpose’.
[14][2011] VSC 499.

After receipt of this letter the Examiner notified Mr Cole by hand delivered letter of 2 May 2012 that he had directed that Victoria Police provide submissions ‘setting out the grounds for releasing your client’s transcript for use in a further prosecution’. The letter set out a timetable for the submissions from Victoria Police and gave a further opportunity to Mr Cole to respond to those submissions. It notified Mr Cole that once the written submission had been provided the decision would be made by the Examiner on the papers.

The submissions by Victoria Police were provided by the Office of the Chief Examiner to Mr Cole by letter dated 23 May 2012. The covering letter made it explicit that it was proposed that the plaintiff’s evidence would be used in a prosecution of FD. This was also made explicit in the enclosed submissions. The submissions did not spell out the precise manner in which it was proposed to use the plaintiff’s evidence. The did submit that the probative value of his evidence was high because it corroborated other evidence in the possession of investigators in relation to the organised crime offences and the level of involvement in them by FD.

Mr Cole responded to these submissions by letter dated 7 June 2012. This responsive submission referred expressly to the proposal that the plaintiff be a prosecution witness at the trial of FD. It reiterated the earlier submission in relation to fears for the plaintiff’s safety. The letter of 7 June 2012 also addressed other matters raised by Victoria Police in their submissions. In particular, Mr Cole addressed the fact that no application had been made at the original examination for confidentiality on the basis of safety and submitted that the probative value of the plaintiff’s evidence could not be high if it was confined to corroboration. Notably, the submission of 7 June 2012 on behalf of the plaintiff makes no submission that rescission of an order for the purpose of use of the evidence in a prosecution is beyond power (as is now submitted by the plaintiff). The submission appears to assume that power to do so exists, but submits that the Examiner should exercise his discretion to reject the application.

The Examiner rescinded the direction made under s 43 of the Act on 1 August 2012. He published reasons for his decision in a document headed ‘Ruling’ of that date. He also rescinded the confidentiality notice he had previously given on 25 August 2010. The Ruling contains a direction in the following terms:

I direct that the witness and his legal representative be served with a copy of these reasons for decision and that there be no communication or publication of the evidence given by the witness for a period of 7 days to enable the witness sufficient time to consider whether to pursue judicial review of this Ruling in the Supreme Court of Victoria. Should an application be filed with the Court within 7 days, I direct that the rescission of the confidentiality arrangements be stayed and that there is to be no communication or publication of the evidence of the witness until further order of the Court or until any proceedings for judicial review are finally determined.[15]
[15]‘KEM-14’ to the affidavit of Kate Elizabeth McKennariey affirmed 10 September 2014 at [75].

Communication of the rescission decision to the plaintiff

Ms McKennariey for the Chief Examiner deposes that a copy of the Examiner’s Ruling and written notice of the rescission of the confidentiality notice was hand delivered to the plaintiff’s solicitor Mr Cole on 1 August 2012. In comparison with direct notification to the plaintiff of the application to rescind the non-publication direction, there is no evidence that a copy of the Examiner’s Ruling was delivered personally to him. A police officer has sworn an affidavit of service in respect of a sealed envelope (which Ms McKennariey says contained a copy of the Ruling) on the manager of Dhurringile Prison on 13 August 2012. Ms McKennariey deposes that the manager cannot recall handing the copies of the Examiner’s Ruling and the written notice regarding the confidentiality notice to the plaintiff and has no record of having done so.

There is no doubt, however, that the plaintiff did learn of the decision to rescind the non-publication order. He states in his Further Affidavit that he became aware of the making of a decision to give his evidence to the police,[16] but he does not say when he so learned of the decision, or how, save that he had a conversation with his partner about it.
[16]Further Affidavit at [6].

The next event the plaintiff records in that affidavit relating to the use of his evidence (and so by inference at a later point in time) is ‘(t)he first time I learned about my evidence actually being released’. He says that this was when he was called to the Governor’s office, told that his evidence had been released and that he would be placed in protective custody. He says he was placed in protective custody from that time. The plaintiff himself does not give a date as to when this occurred, but Mr Magazis, his solicitor in these proceedings, deposes that the plaintiff was transferred to a protection unit on 17 October 2012.[17]
[17]Affidavit of Theo Magazis sworn 11 July 2014 at [17].

Publication of the plaintiff’s evidence

On the evidence before me the plaintiff’s evidence was first published to the prosecutor in the trial of FD on 27 August 2012 when Detective Schubert supplied a redacted copy of the transcript to the Office of Public Prosecutions. Ms Richter of that office provided the redacted transcript and a statement by the police officer responsible for the audio recording and subsequent transcription thereof to the solicitors for FD on that same day. The covering notice is to the effect that the prosecution intend to call the plaintiff as a witness at FD’s trial. Inspection of the enclosed redacted transcript shows that it is redacted only on the first two pages, which relate to a period of time prior to the entry of the plaintiff into the examination room.

Notification that the plaintiff would be called as a witness

In his Further Affidavit, the next event that the plaintiff refers to after being placed in protective custody is as follows:

I did not learn anything more about what happened to my evidence until I received a summons while I was still in custody to appear as a witness in the trial of [FD].[18]

[18]Further Affidavit, at [10].

He says that this is when he became aware that the evidence given by him would be ‘played’ in that trial and that this was ‘(t)he first time I understood how the decision to release my evidence would unfold’.[19] In the immediately following paragraph in his affidavit he says that ‘(b)y this time’ his partner’s financial circumstances had improved and they instructed lawyers to represent him ‘(w)hen I was brought to Court in March 2014’.
[19]Further Affidavit, at [11].

The clear implication is that the summons to which the plaintiff refers was received by him in respect of a court attendance in March 2014. Counsel for the plaintiff confirmed in the course of the hearing that these were her instructions. A subpoena to give evidence at the trial of FD was issued at that time,[20] but it was the second such subpoena. There is no evidence from Ms Richter as to service of that second subpoena, but the plaintiff by this reference confirms receipt of it.
[20]Ibid at [70].

The content and timing within the Further Affidavit implies that nothing had occurred to alert the plaintiff to any developments in respect of the use of his evidence either between learning of the rescission decision and October 2012 when he was placed into protective custody, or between October 2012 and March 2014 on being served with the summons and being taken to court. The defendants dispute this.

The evidence of Ms Richter is that the plaintiff was first served with a subpoena to give evidence for the prosecution at the trial of FD on 16 September 2012. That subpoena in its title states that it concerns the trial of FD and in the body of the subpoena informs the plaintiff that he is required to attend to give evidence.

Ms Richter’s evidence that the first subpoena was served on the plaintiff on 16 September 2012 is supported by a covering letter from a police officer confirming service on the plaintiff on that day.

Ms Richter deposes that she caused letters to be sent to the plaintiff on 16 October 2012, 25 October 2012 and 14 December 2012 which all refer to the fact that he had been served with the subpoena which required his attendance at the trial of FD. The purpose of the letters was to advise him that the trial had been adjourned. The first letter dated 16 October 2012 was sent to the plaintiff care of Dhurringile Prison. The letter of 25 October 2012 is in exactly the same terms but was sent to the plaintiff at the Melbourne Assessment Prison, presumably because the Office of Public Prosecutions had been made aware that he had been transferred to that prison on 17 October 2012. The final of these letters, dated 14 December 2012, was also sent to the plaintiff at Dhurringile Prison. On the basis of the prisoner movement record exhibited to Mr Magazis’ affidavit it would appear that the plaintiff never returned to Dhurringile Prison, and accordingly it is possible that he did not receive this final letter of 14 December 2012, which gave him notice that the trial of FD had been relisted for 1 July 2013, unless it was forwarded to him at Melbourne Assessment Prison.

Ms Richter deposes that she had ‘conversations’ with the plaintiff’s solicitor Mr Cole ‘about [the plaintiff] being a witness in the trial of [FD]’ on 19 October 2012 and 25 October 2012. Ms Richter deposes to further communications with Mr Cole about the Crown’s intention to call the plaintiff at the trial of FD on 18 February 2013, 5 March 2014 and 12 March 2014. She does not set out the content of the communications or exhibit any file note in respect of them. None of this evidence is, however, disputed by the plaintiff, including her evidence that the communications concerned the plaintiff being a witness in the trial of FD.

Ms Richter deposes that she had a telephone call with a different solicitor for the plaintiff, a Mr Robert Sdraulig, on 8 October 2013 in relation to the plaintiff’s confiscation proceedings. He called her. She deposes that she told that solicitor that the Crown would call the plaintiff at the trial of FD and that solicitor said he was not aware of that and he would discuss it with the plaintiff.

Ms Richter deposes that the second subpoena was issued requiring the plaintiff’s attendance at the trial of FD on 17 March 2014, and a gaol order was made on 14 March 2014 by the trial judge at the County Court for the plaintiff to be brought to the County Court on 31 March 2014 to give evidence in the trial of FD.

The plaintiff gives no evidence personally about any of these matters, other than the subpoena he received in March 2014 and attendance at court in March 2014. He does not adduce any evidence from either Mr Cole or Mr Sdraulig. The plaintiff does not, however, either by way of evidence in reply or submission, dispute Ms Richter’s evidence. Ms Richter’s evidence is largely factual, and is corroborated in most instances by contemporaneous documentary evidence. I accept it.

Parties’ submissions and discussion
Delay

The plaintiff is more than 21 months out of time in seeking judicial review of the decision to rescind the non-publication direction. The plaintiff submits that he has an acceptable explanation for this delay, and that that explanation alone would be enough to constitute ‘special circumstances’. Counsel for the plaintiff stresses that the plaintiff was given little time to respond when he first learned of the decision, in particular because of the seven day stay determined by the Examiner. She submits on the basis of the plaintiff’s evidence that he only understood the true implications of the decision in March 2014. The first defendant, with whom the third defendant agrees, submits that the delay is unacceptably long and the explanation insufficient.

The plaintiff’s own account of his explanation is set out at paragraphs 10- 18 of his Further Affidavit. It has two limbs. First, the plaintiff says that he did not understand the consequences of the release of the evidence until March 2014, when he received the (second) subpoena and was sent to court. Secondly he says that he was not in a financial position to challenge the decision until that time.

In my view, the plaintiff’s explanation fails because of its generality and its omissions, made evident on comparison to the facts. First, the plaintiff entirely fails to refer to Mr Cole. In particular, he does not say whether or not he sought Mr Cole’s advice when the decision was made to rescind, or, if not, why not. The plaintiff also entirely fails to refer to the first subpoena, and his subsequent instructions to, and private funding of, another lawyer, Mr Sdraulig, to act for him in respect of the confiscation and appeal against sentence proceedings. Finally, he gives no explanation whatsoever of the further delay incurred from March 2014 (when he says he appreciated the consequences of the rescission and Mr Magazis confirms he was instructed[21]) to July 2014 when this proceeding was filed, itself a period in excess of the usual time period of two months for making application for judicial review. That alone would be sufficient to defeat his application for extension of time.
[21]Affidavit of Theo Magazis sworn 11 July 2014 at [3].

I now set out further detail in relation to these conclusions.

I first consider the plaintiff’s explanation at its highest, being the state of his own personal subjective knowledge. On the plaintiff’s own evidence he knew by the date he was put into protection that his coercively obtained evidence before the Examiner had been released to the police.[22] Mr Magazis’ affidavit shows that that date was 17 October 2012. The plaintiff does not dispute the evidence given by Ms Richter[23] that a month earlier, in September 2012, he had been served with a subpoena to give evidence for the prosecution in the trial of FD, but fails to refer to it in his own evidence. Accordingly, there is no explanation on oath why, if he understood how his evidence was to be used when served with the second subpoena, he did not understand that when served with the first, in September 2012, or a month later when he was told his evidence had been released to the police.
[22]Further affidavit at [9].
[23]Affidavit of Katrina Anne Richter affirmed 10 September 2014 at [62].

Counsel for the plaintiff sought in submissions to draw a distinction between the two subpoenas based on the fact that no action was taken in relation to the 2012 subpoena, because the trial date there specified was adjourned and so the plaintiff was not physically transported to court. If this was the explanation, it should have been on oath.

Nevertheless, in fairness to the plaintiff and because the explanation offered by his counsel is plausible, I accept that it is possible that being actually brought to court in March 2014 drove the implications of the March 2014 subpoena more clearly home to the plaintiff than service alone of the September 2012 subpoena. The plaintiff’s own subjective state of comprehension is not, however, the end of the matter.

First, the plaintiff was legally represented in the rescission application and that same solicitor continued to be a point of contact for him by prosecution authorities until at least March 2014. On the undisputed evidence of Ms Richter, Mr Cole, the plaintiff’s solicitor, was made aware of the rescission decision by being given a copy of the Ruling on the very day it was made, 1 August 2012. Mr Magazis, the plaintiff’s solicitor in these proceedings, confirms in his affidavit that Mr Cole was instructed by the plaintiff to oppose the rescission and Mr Cole himself of course confirmed that in his submissions in opposition to the Examiner on the rescission application.

It is a usual and required aspect of any retainer to report to a client on the outcome of an application or proceeding. In the absence of evidence to the contrary, I consider that it is a fair inference that that reporting occurred, and in a timely manner. Indeed, it would be inappropriate to infer against Mr Cole that it did not, without any clear evidence to that effect. There is no evidence adduced by the plaintiff from Mr Cole, let alone to contradict that usual inference. There is no denial from the plaintiff that he was informed of the outcome of the application by Mr Cole. The plaintiff says nothing either way as to whether or not he was informed by Mr Cole. He says that he ‘later learned’ he could appeal. It is a necessary inference that he knew the decision had been made. He says that he had been told by his partner at this time that he only had 48 hours to take any action.[24]
[24]Further affidavit at [6] and [7].

The plaintiff does not give the date of this conversation, even an approximate date. The placement of this evidence in his Further Affidavit implies that it was before October 2012, when he learnt of the release of his evidence to the police and he was placed in protection. He does not say what was the length of the ‘appeal ‘ period, as he understood it. The Ruling contained a seven day period before which the evidence could be released. The period within which an application for judicial review could be made was 60 days. It is unclear to which period the plaintiff was referring, but the reference to a very short period, 48 hours, when coupled with the usual expectation as to reporting to a client suggests that the plaintiff learnt of the decision within this seven day period.

The plaintiff’s explicit explanation as to why he did not take action at this time was that he had a very short time period to act; he could not afford private representation at that time; and was told by a prison officer that it would take two weeks to even apply for legal aid at an appointment with a legal aid representative.[25] This might sufficiently explain why a prisoner who had not been legally represented in the rescission application did not take action to challenge the rescission when first learning of it, and being told he had a limited time to act. It does not sufficiently explain why the plaintiff, who had been legally represented, did not. Strikingly, the plaintiff makes no reference at all to Mr Cole in the whole of his evidence, yet Mr Cole had acted for him in relation to the rescission and would have been the obvious first point of contact for further explanation and advice.
[25]Further Affidavit at [7] and [8].

Counsel for the plaintiff submits that Mr Cole was acting pro bono for the plaintiff in the rescission application, as his retainer had come to an end at the conclusion of the criminal proceedings against the plaintiff in March 2012. There is no evidence to this effect. Even if correct, in acting for the plaintiff to oppose the rescission, Mr Cole incurred, albeit voluntarily, the obligation to report to him on the outcome. If a further grant of aid or private funding was required to fund a challenge to the decision, then Mr Cole could have informed the plaintiff of that.

Counsel for the plaintiff seeks to make much of the inclusion in the Ruling of reference to a seven day period before which the evidence would not be released. She submits that the reference was misleading because the real time limitation was 60 days. Her written submissions also note that the correspondence to the plaintiff and his lawyer Mr Cole did not make mention of a stay or any right to seek judicial review.

I do not accept this submission. The Examiner’s Ruling does not state that seven days is the appeal period. That portion of the Ruling explicitly states that that period is ‘to enable the witness sufficient time to consider whether to pursue judicial review of this Ruling in the Supreme Court of Victoria’ (emphasis added). The Ruling continues to the effect that if an application was made within that time then the rescission of the confidentiality arrangements would be stayed and there was to be no communication or publication of the evidence until further order of the Court or until any proceedings for judicial review were finally determined.

Seven days is clearly not the time period for an application for judicial review, but nor was it stated to be. It was stated to be a period for the consideration of making such an application, which is specifically referred to as an application for judicial review. If such an application was instituted then, as Mr Cole would have been aware or could have learnt on reasonable enquiry, an application for stay could have been made to the Court, if the balance of the direction made at paragraph 75 was considered insufficient to protect the non-publication of the plaintiff’s evidence until determination of the judicial review proceeding. It was not required of the first defendant to elaborate these matters to the plaintiff, nor the role of the first defendant to give advice about them to the plaintiff, particularly as the plaintiff had his own legal representative.

I turn now to the period between expiration of the 60 day period, on 30 September 2012, and the filing of the originating motion on 11 July 2014. On Ms Richter’s undisputed evidence, Mr Cole received further communications from the OPP in relation to the plaintiff being called as a witness in the trial of FD within that period, at least until March 2014.

Ms Richter’s evidence is she spoke to that same solicitor in relation to the plaintiff giving evidence against FD in October 2012. She directed further communications to that same solicitor in respect of FD’s trial in February 2013 and March 2014. There is no evidence from the plaintiff in opposition to Ms Richter’s evidence that Mr Cole continued to act for the plaintiff, at least on those dates and in respect of the proposed use of his coercively obtained evidence at the trial of FD. Whatever the plaintiff personally understood about the use to which his evidence was to be put by the prosecution, there can be no doubt that Mr Cole understood it. This is clear on the face of the submissions that he put on the plaintiff’s behalf in opposition to the rescission. In his submissions dated 7 June 2012, Mr Cole objects to coercive powers being used to ‘take a proof of evidence’ from the plaintiff and expressly notes that the intention of the rescission is that the plaintiff be a prosecution witness at the trial of FD.

Service of the subpoena on the plaintiff in September 2012, notification that his evidence had been released to the police in October 2012, and the letters from the Office of Public Prosecutions about postponement of the trial of FD (if received) were opportunities for the plaintiff to seek legal advice, in particular from Mr Cole. He gives no evidence as to whether or not he did so. He does not mention Mr Cole, or seeking any advice about those matters, at all. Every communication from Ms Richter to Mr Cole about the plaintiff giving evidence against FD was an opportunity for Mr Cole to seek instructions and give advice in relation to the rescission decision. There is no evidence as to whether or not he did so. When the plaintiff was served with the first subpoena the time period for challenging the rescission decision had not yet expired. It had expired by 17 October 2012, and by 19 and 25 October 2012 when Ms Richter says she spoke to Mr Cole about the plaintiff giving evidence, but the plaintiff was not much out of time. Nevertheless he did not bring an application to challenge the decision at that time.

For these reasons I conclude that, even if it should be accepted that the plaintiff did not, until March 2014, personally understand the implications of the rescission of the non-publication direction and in particular that he was to be called as a witness against FD to give that evidence, the solicitor who had acted for him in the rescission application could have been in no doubt. Similarly, even if the plaintiff personally did not understand the time period within which the decision could be challenged or the means of challenging it, he had access to a solicitor who on making reasonable enquiry could have ascertained those matters. The plaintiff fails to say whether he contacted Mr Cole, and if not, why not.

The second limb of the plaintiff’s explanation for his inaction until July 2014 is his assertion that he did not have the financial resources to fund a legal challenge privately and had been deterred from applying for legal aid, when he first learnt of the right to appeal, by the delay involved. There is no corroboration of the plaintiff’s claim as to his financial resources, or any detail to support the assertion. Even assuming it to be correct, it is expressed in his Further Affidavit to be an explanation only up until the time when he was ‘brought to Court’ in March 2014.[26] There is no explanation provided for the further lapse of time from March 2014 to 11 July 2014. Further, Mr Cole was able to act for the plaintiff at very short notice in the rescission proceeding itself. Assuming, in favour of the plaintiff, that the plaintiff could only have instructed Mr Cole or another solicitor to take judicial review proceedings on grant of an application for legal aid for that purpose, there is no evidence that he pursued legal aid after his initial inquiry to the gaol authorities, which was probably in or about August 2012.
[26]Further Affidavit at [12].

In addition to Mr Cole, the plaintiff had a further solicitor acting for him in confiscation and then appeal against sentence proceedings, Mr Sdraulig. Ms Richter deposes that she told that solicitor in October 2013 that the plaintiff was to be called to give evidence against FD, and Mr Sdraulig said he would discuss that with the plaintiff. There is no evidence from that solicitor or any evidence from the plaintiff disputing Ms Richter’s account of the conversation. Mr Sdraulig did, however, file a detailed affidavit in support of the plaintiff’s application for leave to apply out of time against his sentence. That affidavit, sworn 17 June 2014, is exhibited as part of Exhibit KR-19 to the affidavit of Ms Richter.

In that affidavit, Mr Sdraulig deposes that he obtained initial instructions to act for the plaintiff in relation to confiscation proceedings in July 2012. The affidavit inferentially supports the plaintiff’s contention that he could not afford private representation at that time, because Mr Sdraulig deposes that he did not then progress the matter due to lack of requested funds. He deposes that he undertook substantial work in relation to the confiscation application from May 2013-August 2013. He does not say whether or not funds were provided to enable this work.

Mr Sdraulig deposes that he gave advice to the plaintiff, and received instructions from him, in person or by telephone in June 2013. Following those instructions, consent orders were made disposing of the confiscation proceedings on 16 July 2013. Mr Sdraulig then gave advice to the plaintiff’s partner that the forfeiture of the plaintiff’s half interest in the real estate may constitute fresh evidence for the purpose of an appeal out of time against sentence, and subsequently received instructions to pursue such an appeal once funded to do so. Funds were subsequently provided. Mr Sdraulig was now acting for the plaintiff in relation to a proposed appeal out of time against sentence. For the reasons he explains in his affidavit, preparation for the appeal took a considerable period. The affidavit shows, however, that during that period Mr Sdraulig was able to obtain instructions from the plaintiff and advise him accordingly.

The detail sworn to by this solicitor acting for the plaintiff in support of the plaintiff’s application out of time for his sentence appeal contrasts starkly with the total absence of any evidence from Mr Cole or Mr Sdraulig in this application for extension of time. The contrast is also stark between the evidence of the plaintiff himself in this application and his affidavit in his application for leave to appeal out of time against sentence. In that affidavit,[27] which was affirmed only a month before the filing of the originating motion in this application, he gives a detailed account, over 22 paragraphs, of his financial and personal history. By contrast, in his affidavits in this application the plaintiff makes general assertions only as to lack of financial resources to bring the application. He makes general reference to funding becoming available from his partner and brother in March 2014, but does not advert at all to the private funding sourced for his appeal against sentence. Further, the plaintiff in his affidavit in the sentence appeal confirms that he received advice from Mr Sdraulig and gave him instructions in June 2013. By contrast, there is no reference at all to Mr Sdraulig in the plaintiff’s evidence in this application.
[27]Plaintiff’s affidavit affirmed 12 June 2014 being part of KR-19 to the affidavit of Ms Richter affirmed 10 September 2014.

I conclude that at least from June 2013 there was another solicitor acting for the plaintiff, apparently privately funded, with whom he could have discussed obtaining legal aid to fund a challenge to the rescission decision had he been so minded. That solicitor was specifically told in October 2013 about the intention of the prosecution to call the plaintiff to give evidence against FD. Given the thoroughness of the work that solicitor undertook for the plaintiff in relation to confiscation and the appeal against sentence, and in the absence of any evidence to the contrary from the plaintiff, I consider it more probable than not that Mr Sdraulig did act on his stated intention, and discussed the prosecution’s intention with the plaintiff at that time.

In summary, even if the plaintiff was initially disheartened about challenging the decision when first learning of it because of what he was told by the prison authorities about obtaining legal aid, he had a solicitor, Mr Cole, with whom he could have discussed the matter at that time. Even if he didn’t understand the implications of the rescission decision in September 2012 when he received the first subpoena to attend to give evidence at the trial of FD, he had another solicitor, Mr Sdraulig, who had been given at least initial instructions for him in another matter in July 2012, whom he could have approached. The plaintiff was able to fund that solicitor to act for him, possibly from May 2013, and at least from September 2013, and in all probability that solicitor told the plaintiff in or around October 2013 that he would be called to give evidence against FD.

For all these reasons, I accept the defendants’ submissions that the plaintiff’s delay in failing to commence these proceedings until July 2014 is not adequately explained. This is a significant factor against the grant of leave to file out of time.

Prospects of success

The plaintiff contends that the arguments he wishes to put on the judicial review have merit and ought to be litigated. The first defendant, with whom the third defendant agrees, disputes this. The defendants submit that the plaintiff’s case has no real prospect of success.

I will approach this question on the basis that all the plaintiff needs to show is that his substantive case has merit in the sense that it is arguable. The converse to being ‘arguable’ is that it has no real prospect of success, which is what the defendants contend. I do not consider that the authorities require the Court to seek to evaluate, in an interlocutory application and so without the benefit of full argument, the degree of merit to the substantive case; merely whether there is some. I do not take the parties as inviting me to do otherwise.

The parties agree that there are three main arguments identified in the amended originating motion. The first is that the Examiner had no power to rescind the non -publication direction order because the coercive powers order by virtue of which the evidence was obtained had by that date expired. The plaintiff relies on the judgment of Morris J in James v The Office of the Chief Examiner and anor[28] (‘James’) in support of this proposition. In that case the plaintiff argued that the Chief Examiner had no power at all to rescind a non-publication direction once made. Morris J rejected this argument, holding that:

Generally, when powers are given to persons pursuant to statute the Parliament intends that the person who is given the power to make a direction also has the power to rescind such a direction. That general proposition is confirmed by s 41A of the Interpretation of Legislation Act1984.[29]

[28][2006] VSC 384.

[29]Ibid, at [7].

The plaintiff relies on the fact that s 41A deems conferral of a power to make an instrument to include power to unmake the instrument only ‘in the same manner and subject to the same conditions or limitations (if any)’ of the power to make the instrument.

The defendants contend that this argument has no real prospect of success, because of a comment by Tate JA, with whom Harper JA and Garde AJA agreed, in The Chief Examiner v Mary Brown (a pseudonym)[30] (‘Mary Brown’). Tate JA said that the requirement for a non-publication direction to be given in the circumstances identified in s 43(2) (i.e. where the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence) is ‘clearly both mandatory and ambulatory; that is, the order must continue for so long as the circumstances identified in s 43(2) exist’. Tate JA continued:

In particular, a non-publication order made under s 43(1) must continue in force and effect, relevantly, for whatever time the failure of an order to be in force might prejudice the safety or reputation of a person.[31]

[30][2013] VSCA 167 at [85] per Tate JA, Harper JA and Garde AJA agreeing.

[31]Ibid.

In neither case was the exact proposition now contended for by the plaintiff at issue. Further, it is not clear from James whether or not the underlying coercive powers order was still in place. The rescission order in that case was made within a year after the making of the underlying coercive powers order. If the duration of the coercive powers order was a year, the non-publication direction was rescinded while that underlying order was still current. Mary Brown concerned the power to include exceptions on the making of a non-publication order, not its rescission, and the Court was at pains to draw this distinction.[32] It follows that the determination of this question will require argument by analogy and construction of the purposes of the Act. That is a matter for full hearing in my view, if the extension of time is granted. I consider the plaintiff’s contention to be at least arguable.
[32]See, for example, Harper JA at [12]; Tate JA at [70].

The plaintiff’s second contention turns on the prosecution’s declared intention to play the video recording of the plaintiff’s evidence in the trial of FD. The plaintiff contends that Mary Brown stands for the proposition that this purpose would render the rescission of the non-publication direction ultra vires. The defendants have not engaged with the substance of this argument, merely contending that the purpose of the exercise of a discretionary power (to unmake a non-publication direction) cannot render the exercise of that power ultra vires.[33] I do not understand how that contention can sit with Mary Brown. Mary Brown concerned the exercise of a discretionary power- to include exceptions in a non-publication direction. The exercise of that power was successfully challenged at first instance, and an appeal from that judgment dismissed.
[33]Outline of Submissions on Behalf of the First Defendant at [12].

The effect of the exceptions in Mary Brown, which did not survive challenge, was that the otherwise prohibited publication could be made to members of the Victoria Police and to the Office of Public Prosecutions for the purposes of prosecution of an offence. As Harper JA described it:

As it stood, the direction would have enabled the police or the Office of Public Prosecutions to publish or communicate, to the accused persons, the evidence of the respondent, and the fact that it was she who gave it. Indeed, that publication or communication may have been an aspect of the Crown’s duty, as prosecutor, to reveal its hand to the defence.[34]

[34]Mary Brown, at [9].

That is precisely what occurred here. As noted earlier, Mary Brown concerned exceptions designed to allow use of the coercively obtained evidence in a prosecution, and not the rescission of a non-publication direction for that purpose. The ratio of the case is that the power to create exceptions under s 43(1) does not permit disclosure of evidence obtained from a witness, by the use of the coercive powers conferred on the Chief Examiner under the Act, either to the Victoria Police or to the Office of Public Prosecutions for the purpose of a prosecution.[35] If the evidence is sought to be used in a prosecution, then the only mechanism to be employed is that specified by ss 43-45 of the Act.[36] In stating this conclusion, however, the Court specifically excepted those occasions where a non-publication order may be ‘lawfully rescinded’.[37] Thus, the question whether a non-publication order may be ‘lawfully rescinded’ where the purpose of that rescission is to provide evidence in a prosecution was not determined in Mary Brown, save for dicta approving the judgment of Beach J in AJH v Office of Chief Examiner[38] that a non-publication order cannot be rescinded when the criteria that gave rise to the order still existed, in particular the criteria specified in s 43(2) that require a non-publication order to be made.
[35]Mary Brown, Tate JA at [87] and [95].
[36]Mary Brown, Tate JA at [95]; Harper JA at [12].
[37]Ibid.
[38](2011) 213 A Crim R 370 (‘AJH’).

The factual scenarios in AJH and Mary Brown may also be distinguishable from the facts of this case. There is currently no evidence before this Court of any risk to the plaintiff’s safety or reputation from the rescission of the non-publication direction or the subsequent publication of the evidence.

Despite these distinctions, there is powerful comment in Mary Brown to the effect that the powers conferred by the Act on the Chief Examiner make significant inroads into long held common law protections, and accordingly should be strictly construed.[39] Having regard to these principles, and the fact that the exact question that arises in this case, whether a non-publication order may be lawfully rescinded for the purpose of use of the evidence in a prosecution, has not been determined by any of the authorities to which the parties have referred me, I consider that the plaintiff’s case in this regard is at least arguable.
[39]For example, Harper JA at [1] and [4]; Tate JA at [91]-[92].

The third argument to be put by the plaintiff is that the Examiner took into account an irrelevant consideration, being that any risk of threat to the plaintiff would be diminished because it was apparent from the transcript that the plaintiff had been compelled to give evidence. The Examiner in Mary Brown reasoned the same way in determining to make his non-publication order subject to exceptions. It does not appear that that reasoning was the subject of direct challenge before the Court of Appeal. It is not identified as at issue by the leading judgment writer, Tate JA.[40] However, it was, as the plaintiff submits, the subject of adverse comment by Harper JA.[41] The defendants contend that this impugned finding was only one aspect of a careful and thorough consideration of relevant issues and so was clearly open and a permissible consideration. In my view, the plaintiff’s contention is arguable, given the comment in Mary Brown, and whether or not it succeeds on detailed analysis of the whole of the Examiner’s reasoning is a matter for full hearing.
[40]She identifies the issues at [62].
[41]At [10].

For these reasons, I consider that the plaintiff’s substantive case is arguable. This is a factor tending towards the grant of an extension of time to seek judicial review.

Prejudice to the defendants

There is no specific prejudice to the defendants as such that they identify if the extension is granted. They do submit that there has already been significant delay in the trial of FD, for other reasons, and accordingly there would be further prejudice to the public interest in the prosecution of crime if the trial is further delayed by the grant of an extension of time permitting the continuation of this proceeding. This is expressed, in the first defendant’s written submissions, to be also a matter of fairness to FD himself, as well as of the proper administration of justice.

The plaintiff says the further delay would not be material in the context of a trial first sought to be held some years ago.

I do not accept the plaintiff’s submission. FD’s trial was first listed for directions in November 2011, and has not yet been held before a jury.[42] There have been numerous preliminary applications made, some of which relate to the use of coercively obtained evidence. While it is not entirely clear on the material before me whether or not those applications concerned the plaintiff’s coercively obtained evidence, I infer that they did not, as his evidence had already been released to FD.
[42]Affidavit of Katrina Anne Richter affirmed 10 September 2014 at [41]-[50].

The fact that the trial has already been so significantly delayed in my view compounds the impact of any further delay, particularly when had the plaintiff brought his proceeding within time it would already have been heard and determined in the normal course of events. I consider that the further delay to FD’s trial that would be occasioned by the listing of this proceeding for full hearing, if time was extended to allow it to be brought nearly two years out of time, is a significant factor against the grant of that extension.

Public interest

I have referred already to the factors of public interest on which the defendants rely. The plaintiff asserts that the issues that he seeks to litigate in this proceeding are of great public importance because they relate to the derogation of fundamental common law rights, being the right to silence and the privilege against self-incrimination. The first defendant disputed at the hearing that the right to silence was engaged, and so I permitted a further exchange of submissions on that point.

The plaintiff conceded in those further submissions that the privilege against self-incrimination is not in issue. The plaintiff has been convicted and sentenced in respect of the conduct identified in his evidence. However, the plaintiff maintains that the ‘right to silence’ is distinct from the privilege against self-incrimination and is engaged. He relies in that regard on comment by Kaye J in CR v Attorney General for Victoria[43] (‘CR’) that:

[t]he powers provided by the Act affect the liberty of any person who is the subject of a witness summons. They also derogate from the right of a person summonsed before the Chief Examiner to exercise his or her right to silence, and expressly derogate from the right of a person not to incriminate himself or herself.

[43][2007] VSC 263 at [51].

The plaintiff also relies on similar comment by Tate JA in Mary Brown.[44]
[44]At [92].

The first defendant submits that the plaintiff’s substantive case turns only on s 43 of the Act, which deals with the making of a non-publication direction, and not on broader issues dealing with the power to coercively obtain evidence. He seeks to distinguish Mary Brown and CR on that basis.

I am not persuaded that there is any such distinction. Indeed, it seems to me arguable that the power to make a non-publication direction, and requirement to do so in certain circumstances, as provided by s 43 is an integral or even necessary component of the intrusions on common law rights that the Act effects. The power so conferred and obligation so imposed provide safeguards for the safety of the witness and the protection of fair trials that might otherwise be compromised by the witness being compelled to attend, and compelled to answer.

I accept the plaintiff’s submission that the importance of the issues sought to be litigated is a factor that supports extension of time.

Injustice or prejudice to the plaintiff and utility

The defendants submit that there is no relevant injustice or prejudice to the plaintiff if an extension of time is refused. There are three limbs to the defendants’ submissions in relation to these matters.

The first is that that there is no prejudice to the plaintiff if the extension is not granted because his evidence has already been published to the prosecution and defence in the trial of FD. I accept the submission that what has been published cannot be unpublished and any risk thereby already incurred cannot be undone. I have considered, however, whether there may be prejudice occasioned by further publication, to persons other than the prosecution and FD, or by the use of the evidence in the trial of FD.

At the time the plaintiff’s evidence was published to the parties to FD’s trial, there was no prohibition on further publication of it. However, shortly after that time, on 31 October 2012 the County Court made a non-publication order in that trial. That non-publication order prohibits the publication of any report of the whole of the proceedings or of any information derived from the proceedings until further order. Thus, while there is no evidence as to whether or not further publication of the plaintiff’s evidence has occurred, if further publication occurred after 31 October 2012 it may have been in breach of the County Court non-publication order. If the extension is refused, then the proceeding suppression order made in this proceeding will terminate, but the plaintiff would still be at liberty to seek protection from the County Court in relation to the publication of his evidence. Further, the use of his coercively obtained evidence in the trial itself will be subject to the control of the trial judge.

There may, of course, be significant prejudice to FD if the plaintiff’s evidence is used against him in the trial. FD was charged in October 2010, after the plaintiff’s evidence was obtained, and committed for trial in October 2011, before the non-publication direction was rescinded[45]. Accordingly, it would appear that the plaintiff’s evidence to date has played no direct role in the court process. If used, it is intended to play a role towards conviction. That prejudice is, however, a matter for FD, not the plaintiff. FD is not a party to this application. Further, FD has a remedy by way of application to the trial judge. I accept the submission of the defendants that any prejudice to FD is not a relevant matter on this application.
[45]Affidavit of Katrina Anne Richter, affirmed 10 September 2014, at [39] and [4].

It follows that I do not consider the possibility of further prejudice to the plaintiff arising from further publication to be a factor supporting the grant of an extension of time, because protection against that risk is otherwise available.

The second limb of the defendants’ submission on utility and prejudice to the plaintiff relates to any risk to safety or reputation. The Act clearly contemplates that a risk to safety or reputation may arise from coercively obtained evidence, and one purpose of a non-publication direction is to protect the witness against that risk. It is also conceivable that there may be increased risk to safety or reputation that arises from the actual use in a trial of coercively obtained evidence, as opposed to its use in investigation of an offence.

It is common ground that the plaintiff was placed in protection in October 2012 at the request of the police, and served the rest of his sentence in protective custody. This on its face would suggest that there was some reason, known to the police if not to the plaintiff, to fear for his safety, at least until his release. However, there is no evidence in this application of any risk to the plaintiff’s safety or reputation arising from further publication of his evidence, or its use in the trial as distinct from its earlier use. Further, in his appeal against sentence, in which the plaintiff swore his affidavit only shortly before this proceeding commenced, the plaintiff said that he was not aware of any threats against him and did not know why he was in protection, although he also referred to rumours that there was a ‘contract’ on his head.[46]
[46]Affidavit of the plaintiff affirmed 12 June 2014, at [44], [55] and [62], which forms part of KR-19 to the affidavit of Katrina Richter.

In his submissions in opposition to the rescission of the non-publication direction Mr Cole asserted that the plaintiff’s safety would be compromised if the direction was rescinded. He did not, however, as the Examiner noted in his Ruling[47] set out any detail as to that risk, and the submissions were not accompanied by any evidence from the plaintiff himself in that regard.
[47]Ruling, exhibited as KEM-14 to the affidavit of Kate Elizabeth McKennariey sworn 10 September 2014, at [43]-[50].

I have considered this aspect of the matter very carefully, because of the importance of safety concerns if shown. There is, however, no evidence of any safety concern, other than the fact of being placed in protection, which the plaintiff himself said was unwarranted. Counsel for the plaintiff sought to put an oral submission as to safety, but conceded that there was no evidence to support it. If the plaintiff wished to rely on a threat to his safety in support of his application for extension of time, it was incumbent on him to file evidence to that effect. In the absence of that evidence, and in the face of his contentions to the contrary in the sentence appeal, the plaintiff has not shown that there is any such risk.

The third limb to the defendants’ submission is that the proceeding lacks utility because there are alternative means available to the prosecution to obtain evidence from the plaintiff in the trial of FD in any event. The defendants submit first that the plaintiff is a compellable witness in FD’s trial. Next, they submit that the prosecution could seek to compulsorily examine him pursuant to s 198 of the Criminal Procedure Act 2009. Alternatively, they submit, the release of the evidence he has already given could be sought pursuant to ss 43(4) and (4A) of the Act.

Ms Richter deposes that some transcripts of evidence obtained by the Chief Examiner that incriminate FD were obtained by the County Court on the application of FD made in October 2012 and some subsequently released to him pursuant to those sections of the Act.[48] As the plaintiff’s evidence had already been released to FD by the time of FD’s application, I infer that this procedure was utilised in respect of evidence given coercively by other witnesses. This inference is supported by the fact that the plaintiff initially sought to challenge the order for release made by the County Court but later withdrew that application on the basis that the order did not relate to his evidence.[49] FD subsequently made unsuccessful application for removal of the application to the High Court in respect of those transcripts that were not released to him by the trial judge.[50] The defendants submit that that even if the proceeding is entirely successful, the ‘almost inevitable result is that the plaintiff will still be a prosecution witness in the trial of (FD) but only after significant delays and complications have been occasioned.’[51] In fact, they submit that the proceeding will not be successful, even if a ground for judicial review is made out, because the Court is likely to refuse relief on discretionary grounds having regard to any and all of the reasons set out above.
[48]Affidavit of Katrina Anne Richter affirmed 10 September 2014 at [44] and [46].
[49]Originating motion as filed 11 July 2014 at [1(c)] and affidavit of Theo Magazis sworn 11 July 2014 at [22]. The application relating to this County Court order was withdrawn on 2 September 2014.
[50]Ibid, at [47]-[48].
[51]Outline of Submissions on Behalf of the First Defendant at [15].

This third limb, which appears in the first defendant’s written outline, was not the subject of detailed discussion in oral argument. In the absence of that detailed discussion, I do not think it appropriate to reach any conclusion about this third limb of the defendants’ submissions. I also consider it preferable not to canvass the likely exercise of discretion by a trial judge if the proceeding were to continue.

In any event, I do not consider it is necessary to determine the question of utility to reach my conclusions on the question of prejudice to the plaintiff or his application as a whole. In relation to prejudice to the plaintiff, if his application for extension of time to bring his proceeding is refused, I accept the defendants’ submissions that there is no relevant prejudice shown. Further, if there is any prejudice arising from further publication I consider that it is capable of alternative remedy by application to the judge in the trial of FD.

Conclusion

I conclude that the plaintiff has failed to show special circumstances by reason of which the time for the making of his application for judicial review should be extended. In particular, he has not given an adequate explanation for what is a very long period of delay. I accept that at all relevant time he was in prison, and have taken into account that from October 2012 he was in protection, and so in more onerous conditions. However, he has not given a satisfactory account of why he did not seek legal assistance earlier given that he was represented at the time the decision was made, learnt of it shortly thereafter, and was made aware from September 2012 that he would be called in the trial of FD. Further, he was able to directly instruct another lawyer in other proceedings, despite being in protection, from at least June 2013, and privately fund that lawyer. Remarkably, the plaintiff himself did not refer to these matters and it was for the defendants to expose them.

I accept that the issues the plaintiff seeks to raise in the substantive proceeding are of public importance, and that he has arguable matters to put. However, he has not shown any prejudice to him if the decision is not reviewed that has not already occurred, or is not capable of other remedy. By contrast, there would be further prejudice to the public interest in the prosecution of FD if the extension is granted, and so further delay to that trial occasioned.

Having regard to all these matters, I will refuse the application for extension of time. I will hear the parties as to costs if required.

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Citations

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

Most Recent Citation

Glass (a pseudonym) v Chief Examiner [2015] VSCA 127

Cases Citing This Decision

1

Glass (a pseudonym) v Chief Examiner [2015] VSCA 127

Cases Cited

5

Statutory Material Cited

0

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Lednar v Magistrates' Court [2000] VSC 549

Goodman v Victorian Civil and Administrative Tribunal [2011] VSC 35

[2014] VSC 507

17 October 2014