DPP v DeBono

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0020

DIRECTOR OF PUBLIC PROSECUTIONS

CHRISTIAN BERNARD DEBONO

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	6 August 2012
DATE OF JUDGMENT:	21 August 2012
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2012] VSC 350

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CRIMINAL LAW – Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 – Collateral challenge to the validity of the Act and a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.

CONSTITUTIONAL LAW – Collateral challenge – Validity of the Major Crime (Investigative Powers) Act 2004 – Whether powers of the Supreme Court under the Act are judicial or administrative – Criteria for determining – Application of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – Independence and impartiality – Open court principle – Procedural fairness – Reasons – Act not invalid.

ADMINISTRATIVE LAW – Collateral challenge – Validity of a coercive powers order made under the Major Crime (Investigative Powers) Act 2004 – Relevance of fact that order is made by a judge of the Supreme Court – Whether judicial review by another judge of the Supreme Court permitted – Whether collateral challenge permitted in any court – Permissible grounds for collateral challenge.

ADMINISTRATIVE LAW – Collateral challenge – Validity of a custody order made pursuant to a coercive powers order.

PRACTICE AND PROCEDURE – Evidence – Subpoena – Legitimate forensic purpose – Applicable principles.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G H Livermore	Office of Public Prosecutions
For the Accused	Mr L C Carter	Lethbridges

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Facts....................................................................................................................................................... 2

Relevant provisions of the Act......................................................................................................... 4

Supreme Court’s procedure for hearing applications under the Act..................................... 11

Preliminary issue: Are the Court’s powers under the Act judicial?........................................ 12

Features of judicial power......................................................................................................... 13

Authorities dealing with the issuing of warrants............................................................ 16

Criteria applicable to the present case..................................................................................... 17
Conclusion: The Court’s powers under the Act are administrative.................................... 18

Validity of the Act: the Kable principle........................................................................................ 22

The Kable principle as it applies to the present case.............................................................. 22
Independence and impartiality................................................................................................ 24
Open court principle.................................................................................................................. 34
Procedural fairness..................................................................................................................... 36
Reasons......................................................................................................................................... 40
Conclusion on the validity of the Act...................................................................................... 45

Validity of the CPO.......................................................................................................................... 45

Are judicial review and collateral challenge available?....................................................... 45

Judicial review....................................................................................................................... 45
Collateral challenge.............................................................................................................. 48

Is the CPO valid?......................................................................................................................... 53
Production of documents that are said to be relevant to the validity of the CPO............ 56

Conclusion in relation to production of documents....................................................... 63

Validity of the Custody Order....................................................................................................... 66

Proposed order.................................................................................................................................. 67

APPENDIX........................................................................................................................................ 68

List of defined terms and abbreviations.................................................................................. 68

HIS HONOUR:

Introduction and summary

The Accused, Christian Bernard Debono, has been charged on indictment with the offence of refusing to take an oath or make an affirmation, contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 (Vic) (‘Act’).[1] By way of a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 (Vic) (‘CP Act (Vic)’), he has sought an order quashing the charge.
[1]On 8 October 2010, the Accused was committed for trial in the County Court. On 13 February 2012, Coghlan J made an order under s 167 of the Criminal Procedure Act 2009 (Vic) transferring the trial from the County Court to the Supreme Court.

The Accused’s application relies on the following grounds:

(a) the Act is invalid because it infringes the Kable[2] principle, by conferring functions on the Supreme Court which substantially impair its institutional integrity and which are therefore incompatible with its role as a repository of federal jurisdiction under Ch III of the Commonwealth Constitution;

(b) the coercive powers order dated 13 August 2008, as corrected and extended, that was made pursuant to the Act (‘CPO’) is invalid because it does not, on its face, demonstrate that the five elements of the definition of ‘organised crime offence’ in s 3 of the Act were satisfied; and

(c) the custody order made by the Chief Examiner on 13 May 2009 pursuant to the CPO, requiring that the Accused be brought before the Chief Examiner to give evidence (‘Custody Order’) is invalid, first, because the CPO is invalid and, secondly, because it was not reasonable to make the Custody Order.

[2]Kable v DPP (NSW) (1996) 189 CLR 51 (‘Kable’).

In assessing the above grounds, it will be necessary to consider the following issues:

(a) whether a judge of the Supreme Court is exercising judicial or administrative power in making a coercive powers order;

(b) whether the Act substantially impairs the institutional integrity of the Supreme Court by undermining the defining characteristics of independence and impartiality, the conduct of proceedings in open court, procedural fairness and the provision of reasons;

(c) whether the Supreme Court can review the validity of the CPO and/or the Custody Order either pursuant to a judicial review application or by way of collateral challenge; and

(d) whether the Accused has a legitimate forensic purpose in seeking production of documents relevant to the validity of the CPO or the Custody Order.

For the reasons that follow, I have concluded that the Supreme Court’s functions under the Act are administrative, that the Act is not invalid on the basis of the Kable principle and that the Court has power to review the validity of the CPO and the Custody Order. Subject to hearing further submissions, I have formed a preliminary view that the Accused has a legitimate forensic purpose in seeking production of particular documents that are relevant to the validity of the CPO.

For convenience, all definitions and abbreviations that are used in this judgment are set out in full in the appendix.

Facts

Pursuant to an application under s 5(1) of the Act, on 13 August 2008, Cummins J made the CPO. The CPO was signed by his Honour and set out the applicant’s name and rank in the police force of Victoria, the name and rank of the officer who approved the application, the name of each alleged offender and his Honour’s name. The CPO recited the following:

THE COURT IS SATISFIED –
(a) that there are reasonable grounds for the suspicion founding the application for the order; and
(b)that it is in the public interest to make the order, having regard to –
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.

THE ORGANISED CRIME OFFENCE in respect of which this order is made is: Murder

The CPO contained the following orders:

THE COURT ORDERS THAT, in accordance with the Major Crime (Investigative Powers) Act 2004, the use of the powers provided by the Act is authorised for the purposes of investigating the organised crime offence in respect of which this order is made.
THE PERIOD for which this order remains in force is: 6 months.
THE USE OF COERCIVE POWERS under this order is subject to the following condition:
This order is made on the condition that an application for a witness summons with respect to [redacted] may only be brought before the Supreme Court and the Court will exercise supervision/discretion over the granting of the witness summons.

On 9 October 2008, Cummins J ‘corrected’ the CPO by adding the handwritten words ‘of Wayne Keith Boyd on or about 9 November 2001’ after the word ‘Murder’ in the description of the organised crime offence.[3] The CPO was extended several times before it expired on 3 February 2012.
[3]The Accused has been provided with a similar coercive powers order that was signed by Cummins J on 26 September 2008, which contained the typed words ‘Murder of Wayne Keith Boyd on or about 9 November 2001’. That order was revoked on 9 October 2008. This issue is discussed below at [186] and [221] to [223].

Pursuant to the CPO, the Chief Examiner made the Custody Order which required that the Accused be brought before the Chief Examiner to give evidence on 21 May 2009.[4] The Accused declined to take an oath or make an affirmation and, on 17 July 2009, he was charged with an offence under s 36(3) of the Act.
[4]The Accused had been brought before the Chief Examiner on 7 November 2008 pursuant to an earlier custody order. The Accused declined to take an oath or make an affirmation and was charged with contempt of the Chief Examiner. The charge did not proceed for the reasons given by Lasry J in R v AX [2009] VSC 153 (22 April 2009) in relation to the making of a costs order in favour of the Accused.

On 2 September 2011, the Accused made an application under s 12 of the Act for an order revoking the CPO. On 9 February 2012, he applied under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’) for an order quashing the CPO. On 8 May 2012, both applications were dismissed on jurisdictional grounds without adjudication on their merits.[5] The present application to quash the charge in the indictment was foreshadowed during the hearing of the s 12 and the O 56 applications.[6]
[5]See BCD v Chief Examiner [2012] VSC 193 (11 May 2012) (‘BCD’).
[6]BCD [2012] VSC 193 (11 May 2012) [40].

Relevant provisions of the Act

The key provisions of the Act were summarised by Kaye J in CR v Attorney-General (Vic).[7] As his Honour’s summary accurately and succinctly sets out the legislative scheme, I have extensively relied on it in preparing the overview of the Act at [12] to [36] below.[8]
[7](2007) 173 A Crim R 343, 344-8 [4]-[16] (‘CR’).
[8]The parties have agreed that version 20 of the Act, incorporating amendments as at 2 April 2009, is appropriate for this proceeding.

Section 1(a) of the Act states that one of its purposes is to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences. The phrase ‘organised crime offence’ is defined in s 3 to mean an offence which:

(a) is an indictable offence punishable by imprisonment for at least 10 years; and

(b) involves two or more offenders; and

(c) involves substantial planning and organisation; and

(d) forms part of systemic and continuing criminal activity; and

(e) has a purpose of obtaining profit, gain, power or influence.

Part 2 of the Act contains provisions for the application for, and making and implementation of, coercive powers orders. Section 4 provides that a coercive powers order ‘authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made’.

Under s 5(1) of the Act, a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being, or is likely to be committed. Section 5(2) provides that such an application may only be made with the approval of the Chief Commissioner of Police or his or her delegate. Section 5(3) specifies the contents of the application. These include particulars of the organised crime offence in respect of which the coercive powers order is sought, and if the name is known, the name of each alleged offender.

Section 5(4) of the Act provides that the application must be supported by an affidavit of the applicant which:

(a) states that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and

(b) sets out the grounds on which the applicant holds that suspicion; and

(c) sets out the reason why the use of coercive powers is sought.

Section 5(5) empowers the Supreme Court to require the applicant to provide additional information. Under s 5(6), an application for a coercive powers order can be made before an affidavit is prepared or sworn where urgent action is required. Where such an application is made, s 5(7) requires the applicant to provide as much information as the Supreme Court considers is reasonably practicable in the circumstances and to file a sworn affidavit by the end of the following day. Section 6 provides for an application to be made by telephone, fax or email if it is impracticable for it to be made in person.

Section 5(8) of the Act provides that an application under s 5(1) ‘must be heard in closed court’. The Act does not require that any person who may be affected by the making of a coercive powers order be given notice of an application for such an order. Section 7 prohibits the publication of ‘a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding’, unless the Supreme Court orders otherwise.

Section 8 of the Act contains the power of the Supreme Court to make a coercive powers order and s 9 sets out the contents of such an order. The Act provides as follows:

8 Determination of application
The Supreme Court may make a coercive powers order if satisfied—
(a)that there are reasonable grounds for the suspicion founding the application for the order; and
(b)that it is in the public interest to make the order, having regard to—
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.

9Coercive powers order
(1)A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).
(2)A coercive powers order must also specify—
(a)the organised crime offence in respect of which the order is made; and
(b)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and
(c)the name and rank of the applicant; and
(d)the name and rank of the person who approved the application; and
(e)the date on which the order is made; and
(f)the period for which the order remains in force, being a period not exceeding 12 months; and
(g)any conditions on the use of coercive powers under the order.

(3)A coercive powers order must be signed by the judge of the Supreme Court who makes it and include his or her name.
(4)If the Supreme Court makes a coercive powers order, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.

It is noteworthy that s 8 of the Act confers jurisdiction on the Supreme Court rather than on particular judges as personae designatae.

Section 10 of the Act provides that a member of the police force on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for an extension of the order for a period not exceeding 12 months, or for a variation of any of the other terms of the order. Section 10(3) states that s 5 applies to an application for an extension or variation as if it were an application for an order. Under s 10(4) and (5), a coercive powers order may be extended or varied more than once before it expires.

Under s 11(1) and (2) of the Act, if the Chief Commissioner of Police or his or her delegate is satisfied that the powers under a coercive powers order are no long required for the purpose for which the order was made, that person must immediately file a notice to that effect with the Supreme Court. Section 11(3) provides that the coercive powers order is revoked on the filing of such a notice.

Section 12(1) of the Act provides that the Supreme Court may revoke a coercive powers order at any time before the expiry of the order. Section 12(2) provides that on revoking a coercive powers order, the Court must give notice of the revocation to the Chief Examiner and to the Chief Commissioner of Police. The Court (under s 12(3)) and the Chief Examiner (under s 13) must revoke any outstanding witness summonses issued in reliance on the revoked coercive powers order and must give written notice of the revocation to the persons to whom the summonses were directed. The Chief Examiner must also release those persons from outstanding obligations under the revoked summonses.

The power to issue witness summonses to appear before the Chief Examiner is contained in ss 14 and 15 of the Act. Under s 14, if a coercive powers order is in force, the Supreme Court, upon application by a member of the police force, may issue: a summons to attend an examination before the Chief Examiner to give evidence; a summons to attend at a specific time and place to produce specified documents or other things to the Chief Examiner; or a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things. Section 14(4) prescribes the contents of an application for a summons.

Section 14(6) of the Act provides that on an application before it, the Supreme Court may issue a summons if the Court is satisfied it is reasonable in the circumstances to do so, after considering the evidentiary or intelligence value of the information sought to be obtained, the age of the person who is to be summonsed, and any mental impairment to which that person is known to be subject.

Section 15 of the Act contains the power of the Chief Examiner to issue witness summonses where a coercive powers order is in force in respect of an organised crime offence. Under s 15(2), the Chief Examiner may issue, on his or her own motion, or on the application of a member of the police force, a summons of the same nature as those referred to in s 14. Section 15(3) provides that the Chief Examiner may determine the procedure for making an application for an issue of a summons under s 15.

Section 15(4) of the Act permits the Chief Examiner to issue a summons if the Chief Examiner is satisfied of the same matters as those specified in s 14(6). Section 15(6) relevantly requires the Chief Examiner, on issuing a summons, to record in writing the grounds on which the summons is issued. Under s 15(10), a summons must state, among other things, that the coercive powers order has been made under the Act by the Supreme Court and the date on which the order was made. There is no requirement that the order be served on a person who is summonsed.

Section 18(2) of the Act provides that if a coercive powers order is in force, and if a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court or to the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing that person before the Chief Examiner to give evidence at an examination. Sections 18(3) and (4) provide that the requirements in s 14(4), (5), (6), (7) and (11) and s 15(3), (4), (5), (6) and (10) relating to summonses also apply to custody orders made under s 18(2).

Section 20 of the Act empowers the Supreme Court and the Chief Examiner to give to a person to whom a witness summons or a custody order applies a notice which has the effect of prohibiting that person from disclosing certain documents and information, unless the person has a reasonable excuse. They include the existence of the summons or custody order, the subject-matter of the applicable organised crime offence, the applicable coercive powers order and an examination by the Chief Examiner.

Part 4 of the Act is concerned with the conduct of examinations by the Chief Examiner. Under s 29, the Chief Examiner may conduct an examination of a person in relation to an organised crime offence if, among other things, the Chief Examiner has received a copy of a coercive powers order made in relation to that offence.

Section 29(1) of the Act provides:

The Chief Examiner may conduct an examination of a person in relation to an organised crime offence if —
(a)the Chief Examiner has received a copy of a coercive powers order made in relation to the offence; and
(b)any of the following has occurred —
(i)the Chief Examiner has received a copy of a witness summons directed to the person requiring him or her to appear before the Chief Examiner at an examination to give evidence or to produce specified documents or other things or do both; or
(ii)the Chief Examiner has issued such a witness summons directed to the person; or
(iii)the Chief Examiner has received a copy of an order made under section 18 in respect of the person; or
(iv)the Chief Examiner has made such an order in respect of the person.

Section 30 of the Act provides that the Chief Examiner is not bound by the rules of evidence in conducting an examination and may regulate the conduct of the examination proceedings as he or she thinks fit. Section 35(1) provides that an examination must be held in private. Under s 34(1), a witness giving evidence at an examination may be represented by a legal practitioner. Pursuant to s 36(1), the Chief Examiner, the legal practitioner, or any person authorised by the Chief Examiner may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates.

Section 36(2) of the Act provides that the Chief Examiner may take evidence on oath or affirmation. Section 36(3) provides that a person appearing at an examination before the Chief Examiner must not refuse or fail to comply with a requirement to take an oath or make an affirmation. Section 36(4) provides that a person who, without reasonable excuse, contravenes s 36(3) is guilty of an indictable offence and is liable to imprisonment for up to five years.

Under s 37 of the Act, a person served with a witness summons to appear as a witness at an examination before the Chief Examiner who, without reasonable excuse, fails to attend, and a person appearing as a witness who refuses or fails to answer a question, or without reasonable excuse refuses or fails to produce a document or other thing which he or she was required to produce by the witness summons, is guilty of an offence. Section 38 provides that it is also an offence for a person appearing as a witness to give evidence which is false or misleading in a material particular, or to produce a document or other thing that the person knows to be false or misleading in a material particular.

Section 39(1) of the Act abrogates the privilege against self-incrimination. However, s 39(3) limits the use that can be made of any answers given at an examination or any documents or other things that are produced in accordance with a witness summons. Under s 40, a person is entitled to refuse to answer a question or produce a document on the grounds of legal professional privilege.

A person attending before the Chief Examiner may be guilty of contempt in the circumstances prescribed by s 49.

Section 68 of the Act contains extensive secrecy provisions that apply to, among others, the Chief Examiner and police officers. The provisions do not apply to the Supreme Court.

Supreme Court’s procedure for hearing applications under the Act

The Act does not prescribe the procedure to be followed by the Supreme Court in exercising its power under s 8 to make a coercive powers order. The Court’s procedure has evolved since s 8 commenced operation on 1 July 2005. The current procedure is described below.

The application for a coercive powers order and the supporting affidavit are filed in advance of the hearing of the application, to give the judge who is allocated to hear the application ample time to consider it. The application is heard in a courtroom which is closed to the public. Those present in the courtroom are the judge, the judge’s associate and tipstaff, the applicant and the applicant’s lawyer. A representative of the Chief Examiner sometimes seeks leave to be present. The judge hears submissions in support of the application. As there is no contradictor, the judge usually asks questions or seeks clarification.

If the judge is satisfied of the matters in s 8, he or she will make the order with or without conditions. If the judge is not satisfied of the matters in s 8, the applicant may seek leave to supplement the affidavit material with further affidavits or with oral evidence. If oral evidence is given, the witness takes an oath or makes an affirmation in the witness box. If the judge is still not satisfied, he or she will refuse the application. If the material is voluminous and the judge requires further time to review it or to consider any legal issues, he or she may adjourn the application.

A court file is prepared in relation to the application and a court number is allocated. The file is kept in a secure place rather than in the Prothonotary’s office and it is not open for inspection by the public. The hearing of the application is recorded by the Court and a transcript is prepared by the applicant from the Court’s recording. A copy of the transcript is provided to the Court and is placed in the court file.

There is no uniform practice in relation to the provision of reasons for granting or refusing an application. Although reasons are usually given, some judges provide oral reasons. Where written reasons are provided, a copy is given to the applicant and a copy is placed in the court file. On some occasions, written reasons are published on a ‘Not Restricted’ basis and are made available to the public. Publicly available reasons are usually very brief, they omit identifying details and are, of necessity, not very informative.[9]
[9]An early example is Major Crime (Investigative Powers) Act 2004 No. 9 [2007] VSC 128 (4 May 2007).

Preliminary issue: Are the Court’s powers under the Act judicial?

The question whether the Supreme Court’s power under s 8 of the Act to make a coercive powers order is administrative or judicial is relevant to the validity of the Act and the validity of the CPO. Accordingly, I will consider it before turning to the invalidity grounds.

Mr Garry Livermore, who appeared for the Director of Public Prosecutions (‘DPP’), submitted that the Court’s power is administrative. Mr Lachlan Carter, who appeared for the Accused, submitted that the better view was that the power is administrative.

Although this issue has been raised in previous cases,[10] it has not been the subject of any judicial determination. Accordingly, it falls to be decided on the basis of general principles.
[10]See CR (2007) 173 A Crim R 343, 348-9 [21], 350 [26], 352 [34], 359 [59]; C v Chief Commissioner of Police (2008) 20 VR 174, 181-184 [17]-[30] (‘C’); Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 424 n 20.

Features of judicial power

The High Court has acknowledged the difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive.[11]
[11]Love v A-G (NSW) (1990) 169 CLR 307, 319 (‘Love’); Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188 (‘Precision’).

In Love v Attorney-General (NSW),[12] MasonCJ and Brennan, Dawson, Toohey and Gaudron JJ, after stating that ‘[j]udicial power has proved to be insusceptible of comprehensive definition’,[13] were content to adopt the following observations of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:[14]

Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.[15]

[12](1990) 169 CLR 307.

[13]Love (1990) 169 CLR 307, 319.

[14](1970) 123 CLR 361, 374-5 (‘Tasmanian Breweries’).

[15]See Love (1990) 169 CLR 307, 320.

In Luton v Lessels,[16] Callinan J phrased the test for defining a power or function as being administrative or judicial as a series of questions as follows:

First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?[17]

[16](2002) 210 CLR 333 (‘Luton’).

[17]Luton (2002) 210 CLR 333, 388 [189].

In C v Chief Commissioner of Police,[18] Smith J referred to the following criteria in the context of considering submissions about the nature of the Supreme Court’s power to revoke a coercive powers order under s 12 of the Act:
[18](2008) 20 VR 174.

•whether the exercise of the powers and functions under s 12 involves an adjudication to determine the rights of individuals;

• whether the making of a revocation order is an order inter partes;
•whether there may be a lis or dispute in existence between individuals;
•whether the application is made on notice and whether an application for an order gives rise to any enforceable rights in third parties;

• whether the order once made is enforceable as an order of the court.[19]

[19]C (2008) 20 VR 174, 183 [26] (citations omitted).

Some of the indicia of judicial power have been the subject of detailed consideration by the High Court and are briefly discussed below.

The making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct has been described by the High Court as a ‘classical instance’ of the exercise of judicial power.[20]
[20]Precision (1991) 173 CLR 167, 188.

Thus, judicial power involves, as a general rule, a decision settling for the future a question between identified parties as to the existence of a right or an obligation. In this regard, the process is generally an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined.[21]
[21]Tasmanian Breweries (1970) 123 CLR 361, 374.

The judicial determination of issues of fact and law to ascertain existing rights is

exclusively within judicial power.[22] However, the making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of the judicial function. It is also characteristic of many administrative functions.[23]

[22]R v Davison (1954) 90 CLR 353, 369; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 258 (‘Brandy’).

[23]Luton (2002) 210 CLR 333, 345 [21].

An essential element in the judicial process is that it results in a binding and authoritative determination.[24] The exercise of judicial power involves a decision that conclusively settles the rights and liabilities of the parties to that decision. It is the judicial determination that pronounces the existence of the right or duty and obliges the parties to that recognition.[25]
[24]A-G (Cth) vAlinta Ltd (2008) 233 CLR 542, 594 [158] (‘Alinta).
[25]Alinta (2008) 233 CLR 542, 594 [158].

By contrast, an administrative decision does not itself have force and effect. It is the legislation that ‘stamps an [administrative decision-maker’s] opinion with legal rights or obligations, so that when it is declared those are the mutual rights and obligations’.[26]
[26]Alinta (2008) 233 CLR 542, 594 [159].

Another important element that distinguishes a judicial decision from an administrative decision is that the former determines existing rights and duties according to law; that is, by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.[27]
[27]Brandy (1995) 183 CLR 245, 268.

Considerations of policy do play a role – sometimes a decisive one – in the shaping of legal principles.[28] However, if an ultimate decision may be determined not merely by the application of legal principles to ascertained facts, but also by considerations of policy, then the determination does not proceed from an exercise of judicial power.[29]
[28]Precision (1991) 173 CLR 167, 189.
[29]Precision (1991) 173 CLR 167, 189.

Where a discretionary authority is conferred upon a court and that authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature, not by reference to policy considerations or other matters not specified by the legislature, it can be concluded that the court’s determination gives effect to rights and obligations for which the statute provides, such that the determination constitutes an exercise of judicial power.[30]
[30]Precision (1991) 173 CLR 167, 191.

Authorities dealing with the issuing of warrants

In Love, the High Court held that the act of a judge of the Supreme Court of New South Wales issuing a warrant for the use of a listening device pursuant to the Listening Devices Act 1984 (NSW) (‘LD Act (NSW)’) was an administrative, not a judicial, act. According to the Court, a warrant is not a judicial order but an ‘instrument made pursuant to a circumscribed statutory authority’.[31] In reaching this conclusion, the Court identified the issue of the warrant as ‘a step in [an] administrative process and ... thus an administrative function’.[32]
[31]Love (1990) 169 CLR 307, 322-3.
[32]Love (1990) 169 CLR 307, 322.

In Grollo v Palmer,[33] the High Court held that the power of eligible judges to issue telecommunications interception warrants under the Telecommunications (Interception) Act 1979 (Cth) (‘TI Act (Cth)’) was non-judicial in nature.[34] The Court said that the issue of a warrant did not involve an adjudication to determine the rights of parties.[35]
[33](1995) 184 CLR 348 (‘Grollo’).
[34]Grollo (1995) 184 CLR 348, 359-60.
[35]Grollo (1995) 184 CLR 348, 359, 379, 386, 389.

In Ousley v The Queen,[36] the High Court categorised the power of Supreme Court judges to issue listening device warrants pursuant to the Listening Devices Act 1969 (Vic) (‘LD Act (Vic)’) as administrative.[37] Gummow J recognised in that case that ‘[t]he exercise of these powers by the Supreme Court is essentially administrative in nature and the issue of a warrant is not a judicial order which determines the rights of parties’.[38]
[36](1997) 192 CLR 69 (‘Ousley’).
[37]Ousley (1997) 192 CLR 69, 84-5, 87, 100, 121, 130, 145-6.
[38]Ousley (1997) 192 CLR 69, 121.

In X v Australian Crime Commission,[39] Finn J held that a determination made by the Board of the Australian Crime Commission (‘ACC Board’) under the Australian Crime Commission Act 2002 (Cth) (‘ACC Act (Cth)’), which had a similar effect to a coercive powers order made under the Act, was of an ‘executive character’.[40]
[39](2004) 139 FCR 413 (‘X’).
[40]X (2004) 139 FCR 413, 421 [32].

Criteria applicable to the present case

Although no single combination of necessary or sufficient factors identifies what is judicial power,[41] the following criteria assist in determining whether the Supreme Court’s power to make a coercive powers order under s 8 of the Act is judicial:
[41]Alinta (2008) 233 CLR 542, 577 [93].

(a) whether there is a dispute between defined persons or classes of persons that requires a legally binding resolution;

(b) whether the exercise of the power involves a decision that determines for the future in a binding manner the existing rights or obligations of defined persons or classes of persons;

(c) whether an application for the exercise of the power must be made on notice to a person who may be affected by it;

(d) whether the exercise of the power results in a legally enforceable order inter partes;

(e) whether the exercise of the power requires the application of a standard set of criteria;

(f) whether the exercise of the power requires the application of policies as determined from time to time by the government of the day;

(g) whether the exercise of the power involves the making of findings of fact and law and the application of the law to the facts;

(h) whether the Act indicates that the power is judicial;

(i) whether the process for the exercise of the power accords with the Court’s traditional processes;

(j) whether the exercise of the power will create a precedent; and

(k) whether there is a right of appeal from the exercise of the power.

Conclusion: The Court’s powers under the Act are administrative

An application for a coercive powers order is made in the context of a police investigation of an offence that the police suspect is an organised crime offence. At the time of the application, the police may or may not have identified particular suspects. The purpose of obtaining a coercive powers order is to further the police investigation into the offence with a view to identifying the suspects and obtaining sufficient evidence to charge them.

It follows that, when a coercive powers order is made, there will usually not be an extant dispute between defined persons or classes of persons that requires a legally binding resolution. It also follows that the making of a coercive powers order will not involve a decision that determines for the future in a binding manner the existing rights or obligations of defined persons or classes of persons. The Act does not require the giving of notice to anyone who may be affected by the making of a coercive powers order. Indeed, as will be discussed below, at the time that an application for a coercive powers order is made, the police may not know the identity of the individuals who may potentially be affected by the making of the order.

While s 9(2)(b) of the Act provides that a coercive powers order must set out the name of each known alleged offender, there is no requirement to serve the order on a named alleged offender, and that person will not necessarily be served with a witness summons or a custody order. Accordingly, the coercive powers order is not an order inter partes. No substantive rights are embodied in the order which are immediately enforceable. The effect of the order depends entirely upon the Act.[42]
[42]Love (1990) 169 CLR 307, 322.

Under s 8 of the Act, a judge of the Supreme Court cannot make a coercive powers order unless he or she is satisfied of the matters set out in that section. Those matters are that there are reasonable grounds for the suspicion founding the application for the order; and that there is a public interest in making the order, having regard to the nature and gravity of the alleged organised crime offence and the impact of the use of the order on the rights of members of the community. The matters set out in s 8 constitute a standard set of criteria.

In deciding whether he or she is satisfied of the matters set out in s 8, the judge must consider the contents of the affidavit in support of the application and make findings of fact to the extent necessary to decide whether he or she is satisfied of those matters. The judge must also interpret the Act, including the meaning of expressions used in the definition of ‘organised crime offence’, and decide whether the evidence in support of the application satisfies the legal requirements of the Act. To that extent, the judge must determine the law to be applied to his or her factual findings. The judge is bound to give effect to the purposes and objects of the Act, as discerned from its wording, but is not bound to apply any policy of the government of the day.

Although the judge’s role in assessing the factual and legal considerations referred to at [66] and [67] above in deciding whether to make a coercive powers order resembles the role that judges routinely perform in the course of their judicial functions, that is not determinative. Some administrative functions also have these features.[43]
[43]Precision (1991) 173 CLR 167, 189; Luton (2002) 210 CLR 333, 345 [21].

The Act does not describe the Supreme Court’s functions in relation to coercive powers orders as either judicial or administrative. Section 7 prohibits a person from publishing ‘a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding’. The word ‘proceeding’ does not necessarily mean ‘judicial proceeding’. It is equally apt to describe an administrative proceeding.[44] Accordingly, in my opinion, the language of the Act does not indicate whether the Court’s functions are judicial or administrative. Likewise, although the fact that the Act confers power on the Supreme Court itself, rather than to a judge of the Court, suggests that the power is judicial in nature, this is not conclusive.[45]
[44]Section 3(1) of the Supreme Court Act 1986 defines ‘proceeding’ as ‘any matter in the Court other than a criminal proceeding’. The reference to a ‘proceeding’ in the Victorian Civil and Administrative Tribunal in ss 17D(1), 17J and 17K of that Act indicates that the expression is not confined to judicial proceedings in a court.
[45]Love (1990) 169 CLR 307, 320-1.

Some aspects of the Supreme Court’s procedure for hearing an application for a coercive powers order, as described at [37] to [41] above, resemble the Court’s traditional procedure for hearing and determining a judicial proceeding. However, there are important differences. Apart from the fact that the Court is closed to the public and the fact that none of the documents relating to the application are publicly available, a critical difference is that the Court process is not adversarial and the Court interfaces only with the applicant. In the absence of a contradictor, the judge hearing the application actively enquires into the matter and seeks information in order to be satisfied of the matters set out in s 8. If the judge decides that the information is insufficient, he or she may request further information under s 5(5) of the Act before making a final decision. The Court can also, on its own initiative, revoke a coercive powers order at any time before it expires. These features are absent from judicial proceedings conducted by the Court.

A decision to grant or to refuse an application under s 8 of the Act must be based on the facts presented to the Supreme Court in relation to the particular alleged organised crime offence. Such a decision is unlikely to have any precedential value, particularly if no reasons are published. However, a decision may deal with issues of statutory interpretation which may have precedential value, particularly if reasons are published.

The Act does not confer a right of appeal on any person in respect of a decision under s 8 of the Act to grant or to refuse an application for a coercive powers order.

The above analysis of the criteria for determining whether the Supreme Court’s function under s 8 of the Act is judicial or administrative in nature indicates that the function departs in significant respects from the traditional judicial functions of the Court. In deciding whether that function should be characterised as an administrative function rather than as a judicial function, it is also necessary to analyse the nature, purpose and effect of a coercive powers order in the context of the Act as a whole.

The purpose of a coercive powers order is to authorise the Chief Examiner to undertake evidence-gathering activities that he or she could not undertake in the absence of the order. The order is a precondition to administrative steps by the Chief Examiner. While those steps have the capacity to significantly affect the rights of individuals, the order itself does not directly affect any person’s rights.

Decisions dealing with the power vested in courts to issue various types of warrants provide support by way of analogy for the categorisation of the power to make a coercive powers order as either judicial or administrative.[46] As in the case of orders authorising the issue of search warrants, interception warrants and listening devices under the enabling legislation, a coercive powers order under the Act is made ex parte for the purpose of authorising the performance of administrative acts in the investigation of crimes where those acts would otherwise be unlawful or legally ineffectual.[47] As a coercive powers order provides the lawful foundation for the performance of administrative acts in the context of the executive function of investigating crimes, the order has an administrative dimension.[48]
[46]C (2008) 20 VR 174, 182 [22].
[47]Ousley (1997) 192 CLR 69, 99.
[48]Love (1990) 169 CLR 307, 322-3.

In Wainohu v New South Wales,[49] French CJ and Kiefel J held that the function of an eligible judge of the Supreme Court of New South Wales in making a declaration under pt 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) (‘CCOC Act (NSW)’) that an organisation was a declared organisation, was administrative in nature. As discussed at [136] below, while the making of a declaration was a statutory precondition to the Court’s power to make a control order, it was the control order that directly affected legal rights. As the making of a coercive powers order is a condition precedent to a witness summons or a custody order under the Act, Wainohu supports the proposition that the function of making a coercive powers order is administrative in nature.
[49](2011) 243 CLR 181, 191 [1], [5] (‘Wainohu’).

For the above reasons, I am of the opinion that the Supreme Court’s power to make a coercive powers order under s 8 of the Act is administrative rather than judicial.

My conclusion does not mean that the exercise of the power under s 8 of the Act is divorced from the Court’s judicial process. On the contrary, it is well established that the power must be exercised judicially, that is, ‘in a just and fair manner, with judicial detachment’.[50]
[50]Love (1990) 169 CLR 307, 322; CR (2007) 173 A Crim R 343, 359 [59]; C (2008) 20 VR 174, 184 [29].

Validity of the Act: the Kable principle
The Kable principle as it applies to the present case

The essence of the Kable principle, for the purposes of the present case, was summarised by French CJ and Kiefel J in Wainohu as follows:

Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term ‘institutional integrity’, applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court’s independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle … [I]t is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution.[51]

[51]Wainohu (2011) 243 CLR 181, 208-9 [44] (citations omitted).

The Kable principle has as its touchstone the protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State.[52] The question indicated by the use of the term ‘integrity’ is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court.[53]
[52]Wainohu (2011) 243 CLR 181, 228 [105].
[53]South Australia v Totani (2010) 242 CLR 1, 48 [70] (‘Totani’).

In South Australia v Totani,[54] French CJ provided the following non-exhaustive list of consequences of the constitutional placement of State courts in the integrated Australian court system:

1A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction.
2 State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.
3 The institutional integrity of a court requires both the reality and appearance of independence and impartiality.
4 The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because ‘the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes’. For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.
5The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court. [55]

[54](2010) 242 CLR 1.

[55]Totani (2010) 242 CLR 1, 47-8 [69] (citations omitted).

In the present case, Mr Carter submitted that the provisions of the Act that confer jurisdiction on the Supreme Court to make coercive powers orders (ss 5 and 8) are invalid because they substantially impair the Court’s institutional integrity by undermining three of its defining characteristics. Those characteristics are the conduct of proceedings in open court, procedural fairness and the provision of reasons. The parties’ submissions on these characteristics also touched on the characteristic of independence and impartiality. As that characteristic overlaps with the others and informs their nature and scope, I will discuss it first.

Independence and impartiality

One of the characteristics required of all courts capable of exercising federal judicial power is that they be, and appear to be, independent and impartial tribunals.[56] Perceptions of a court as independent and impartial must be taken as essential to its integrity.[57]
[56]Totani (2010) 242 CLR 1, 49 [72].
[57]Totani (2010) 242 CLR 1, 162 [443].

In Totani, French CJ elaborated upon the defining characteristic of independence as follows:

At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities. Decisional independence is a necessary condition of impartiality …[58]

[58]Totani (2010) 242 CLR 1, 43 [62].

A State court may be required to act on the basis of a fact determined by the executive and that, without more, does not impermissibly impair the institutional integrity of the court.[59] However, the Kable principle might apply if the court’s adjudicative powers are confined so as to merely implement an executive or legislative determination.[60]
[59]Totani (2010) 242 CLR 1, 48-9 [71], 154 [420].
[60]Totani (2010) 242 CLR 1, 48-9 [71], 154 [420].

Legislation that draws a court into the implementation of government policy, by confining the court’s adjudicative process so that the court is directed or required to implement legislative or executive determinations without following ordinary judicial processes, will deprive that court of the characteristics of an independent and impartial tribunal.[61]
[61]Totani (2010) 242 CLR 1, 157 [428].

There is no general constitutional prohibition against the appointment of judges to non-judicial offices or to carry out non-judicial functions.[62] French CJ and Kiefel J in Wainohu traced the history of the involvement of judges in non-judicial activities in or on behalf of the executive government.[63] Their Honours noted that:

[t]he question whether such activities are appropriate for a judge to undertake is not the same as the question whether they fall within the limits imposed by the Constitution. Nevertheless, the existence of the debate and the historical practice are consistent with the absence of bright-line rules defining those limits.[64]

[62]Wainohu (2011) 243 CLR 181, 196-7 [21].

[63]See Wainohu (2011) 243 CLR 181, 197-200 [22]-[26].

[64]Wainohu (2011) 243 CLR 181, 196-7 [21].

French CJ and Kiefel J referred to the ‘imprecise scope’ of the judicial power and the ‘shifting characterisation of the so-called “chameleon” functions as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court’.[65] Their Honours also made the following observations about the multi-faceted nature of the debate concerning the desirability of conferring administrative functions on serving judges:

There are questions of principle relating to the independence and impartiality of the courts and the need for an appropriate distance from executive government, even if that distance only accords with convention and falls short of a separation of powers in the constitutional sense. Concerns have been expressed about embroiling judges in political controversies. A practical consideration is the extent to which a judge discharging extraneous administrative duties (even if only on a part-time basis) is diverted from judicial work. Some functions, such as those relating to the issue of statutory warrants, may involve only a minor imposition on judicial time. Others may be considerably more burdensome…
…

Debates about the appropriateness of conferring non-judicial functions on judges do not directly engage the constitutional question whether such offices and activities are compatible with the judicial functions of federal, State and Territory courts under Ch III of the Constitution. What the debates indicate is that questions of compatibility which require evaluative judgments are unlikely to be answered by the application of precisely stated verbal tests.[66]

[65]Wainohu (2011) 243 CLR 181, 201-2 [30].

[66]Wainohu (2011) 243 CLR 181, 200 [27], 201 [30] (citation omitted).

For a law conferring administrative functions (not incidental to judicial functions) on State judges to be valid, it is not necessary that those functions be conferred persona designata.[67]
[67]Wainohu (2011) 243 CLR 181, 211 [49].

A legislatively prescribed detachment of a State judge from his or her court when performing a non-judicial function may weigh in the balance against a finding of impairment of the institutional integrity of the court. Such a detachment may also make it less likely that the exercise of the non-judicial function undermines the reality or the appearance of the court as an institution independent of the State executive government. However, if that function is conferred upon the judge by virtue of his or her judicial office, the fact that the function is conferred persona designata should not be given great weight. It would generally not be determinative of the question of compatibility.[68]
[68]Wainohu (2011) 243 CLR 181, 211-12 [50].

In Wainohu,[69] Gummow, Hayne, Crennan and Bell JJ endorsed the following statements of principle made by Gaudron J in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs: [70]

(a)The confidence reposed in judges depends on their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are. It also depends on the reputation of the courts for acting in accordance with that process.[71]
(b)Generally, a function that is carried out in public, that is manifestly free of outside influence and that results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches of government.[72]
(c)There may be functions, such as the issuing of warrants, which do not satisfy these criteria but which, historically, have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence. However, history cannot justify the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the judiciary generally.[73]

[69](2011) 243 CLR 181, 225-6 [94].

[70](1996) 189 CLR 1 (‘Wilson’).

[71]Wilson (1996) 189 CLR 1, 22, citing Tasmanian Breweries (1970) 123 CLR 361, 374.

[72]Wilson (1996) 189 CLR 1, 25-6.

[73]Wilson (1996) 189 CLR 1, 26.

In Grollo,[74] a majority of the High Court (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ, McHugh J dissenting) accepted the applicability of the persona designata mechanism to federal judges, subject to two necessary conditions.[75] The first condition was that the judge’s consent is required for the conferral of a non-judicial function. The second condition was that there be no incompatibility with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. Relevantly, this ‘incompatibility condition’ would arise if the non-judicial function were of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the judge to perform his or her judicial functions with integrity is diminished.[76]
[74](1995) 184 CLR 348.
[75]Grollo (1995) 184 CLR 348, 364-5.
[76]Grollo (1995) 184 CLR 348, 365.

The majority in Grollo rejected the contention that the role of a judge, acting persona designata, in issuing telecommunications interception warrants under the TI Act (Cth), was incompatible with judicial office.[77] The observations in the joint judgment of Brennan CJ and Deane, Dawson and Toohey JJ regarding the role of judges in issuing warrants – properly characterised as an administrative act – and the maintenance of judicial independence in fact and appearance, are apposite to the present case:

The applicant submits that judicial integrity is compromised and public confidence in the exercise of the jurisdiction of the Federal Court is prejudiced by the conferral of power on judges of the Federal Court to issue interception warrants. …
If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a judge without compromising the judiciary's essential separation from the executive government. The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant. Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed…[and] there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution. Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant. Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably a view might be taken that this is no business for a judge to be involved in…
Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.[78]

[77]Grollo (1995) 184 CLR 348, 368-9.

[78]Grollo (1995) 184 CLR 348, 365-7 (citations omitted).

In Grollo, Gummow J delivered a separate judgment in which he agreed with the conclusion in the joint judgment that the TI Act (Cth) was valid.[79]
[79]See Grollo (1995) 184 CLR 348, 398.

In his dissenting judgment in Grollo, McHugh J described the incompatibility condition as a ‘necessity’[80] and discussed the significance of the appearance of independence and impartiality in the following terms:

In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence … The greater the association between the judicial status of the persona designata and the executive functions that he or she performs, the greater is the likelihood that the judicial and non-judicial functions of that person will seem to be fused. In that situation, it is likely that members of the public will fail to distinguish between the judicial functions of the judge and the executive functions of that person as persona designata and will conclude that the judge is neither independent of the executive government nor impartial when dealing with actions between the citizen and the government and its agencies.[81]

[80]Grollo (1995) 184 CLR 348, 376.

[81]Grollo (1995) 184 CLR 348, 377.

In Wainohu, French CJ and Kiefel J described the above reasoning of McHugh J in Grollo, while applied to federal judges and federal courts, as apposite in the determination of the question whether a non-judicial function conferred on a State judge impairs the institutional integrity of the court of which that judge is a member by impairing the reality or appearance of its independence and impartiality.[82] Their Honours stated that this aspect of McHugh J’s judgment in Grollo was unaffected by the differences between McHugh J and the majority judges.[83]
[82]Wainohu (2011) 243 CLR 181, 206 [39].
[83]Wainohu (2011) 243 CLR 181, 206 [39].

In Totani, French CJ emphasised that the constitutional assumption of actual and apparent independence and impartiality does not need to be mediated through its effect upon ‘public confidence’ in the courts.[84] Perception as to the undermining of public confidence ‘is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity’.[85]
[84]Totani (2010) 242 CLR 1, 49 [73].
[85]Totani (2010) 242 CLR 1, 82 [206], citing Fardonv A-G (Qld) (2004) 223 CLR 575, 618 [102] (‘Fardon’).

In my opinion, there is nothing in the Act that impairs the independence or impartiality of the Supreme Court. Under s 8, the judge hearing an application for a coercive powers order must refuse the application unless he or she is satisfied of the matters set out in that section. The judge makes that decision on the basis of the material presented in support of the application. In assessing that material, the judge uses the same analytical skills upon which he or she relies in relation to all other issues – whether judicial or administrative – that he or she is required to resolve. The judge deploys those skills impartially and independently and carefully weighs up the competing considerations set out in s 8.

The fact that applications for coercive powers orders are heard in closed court in the presence of only the applicant and his or her lawyer does not mean that the judge’s decisional independence is undermined. The applicant – who represents the executive branch – cannot unduly influence the judge. The applicant’s role is to present material and to make submissions in support of the application . In practice, the absence of a contradictor means that the judge scrutinises the applicant’s material with great care and seeks clarification of anything that is unclear or requests further information where the information presented is incomplete. Far from siding with the executive branch in a joint enterprise or for a common purpose, the judge in effect becomes a contradictor and provides a check on the power of the executive and an important safeguard against abuse of that power.

I accept that the ex parte procedure under the Act presents difficulties. The key risk is that the material presented in support of an application for a coercive powers order may be inaccurate or misleading – either deliberately or inadvertently – and that the judge may not become aware of this. However, that risk is not unique to the Act: it applies to all ex parte applications and even inter parties applications. Further, the availability of review by way of judicial review or collateral challenge, provides a measure of judicial scrutiny.[86]
[86]See below at [153] to [181].

Mr Livermore submitted that the joint judgment of the majority in Grollo is a complete answer to the issue of independence and impartiality. He contended that what the majority said about the role of a Federal Court judge in issuing a telecommunications interception warrant under the TI Act (Cth) applies equally to the role of a judge in making a coercive powers order under the Act. It will be recalled from [93] above that, in their joint judgment, the majority in Grollo said that ‘the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other’.[87]
[87]Grollo (1995) 184 CLR 348, 367.

On the other hand, Mr Carter submitted that the joint judgment of the majority in Grollo predates the most recent High Court decisions on the Kable principle and is no longer good law. He contended that the dissenting judgment of McHugh J is more consonant with the recent authorities.

McHugh J in Grollo held that the nature of the power exercised by eligible judges under the TI Act (Cth) and the manner in which it was exercised were incompatible with the exercise of federal judicial power and were likely to jeopardise public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner.[88] His Honour stated that the legislation ‘[e]ssentially … puts the [eligible judge] in the uniform of the constable’ and required him or her to perform functions under a scheme with the following features: the application for a warrant was made ex parte and in secret; original documentation was not retained; reasons were not given; a duty of confidence was imposed which could give rise to conflicts of interest; and a large number of warrants were issued annually.[89] His Honour held that the cumulative effect of these features rendered the role of judges as personae designatae ‘incompatible with the concurrent exercise of federal judicial power’.[90]
[88]Grollo (1995) 184 CLR 348, 378.
[89]Grollo (1995) 184 CLR 348, 379-82.
[90]Grollo (1995) 184 CLR 348, 383.

Mr Carter correctly submitted that, in Wainohu, French CJ and Kiefel J cited with approval parts of McHugh J’s dissenting judgment in Grollo. However, French CJ and Kiefel J approved the passage set out at [95] above. Neither their Honours nor any other member of the High Court in Waihohu said that they preferred McHugh J’s judgment to the joint judgment of the majority or to the separate judgment of Gummow J.

In my opinion, the joint judgment of the majority in Grollo remains good law and provides valuable guidance in the resolution of the present case. In the light of the serious consequences that can arise from the making of a coercive powers order, the public would be comforted by the knowledge that such an order can only be made by the Supreme Court. As an independent and impartial institution, the Court is an ideal ‘check and balance’ on the powers of the executive, and that is how it is likely to be perceived by the public. The public is not only concerned about civil liberties, it is also concerned about protection from organised crime and expects the striking of a fair balance in addressing those concerns. The public is likely to have a high degree of confidence about the integrity of the process by which the Supreme Court performs its functions under the Act. The performance of those functions is unlikely to diminish public perceptions of the Court’s independence and impartiality.

There are important differences between the scheme of the TI Act (Cth), as described by McHugh J in Grollo, and the scheme of the Act. The Act does not place the judge hearing an application for a coercive powers order ‘in the uniform of the constable’. Under s 8 of the Act, the judge must apply criteria that are commonly found in other statutes. Although the process under the Act is ex parte and secret, a court file is opened, a court number is allocated, documents are retained in the court file, a transcript is prepared and reasons are usually given and are sometimes publicly available.[91] The judge is not bound by the secrecy provisions in s 68 of the Act and can dispense with the non-publication provisions in s 7. Applications under the Act are not a substantial part of the Court’s jurisdiction. Between 1 July 2005, when the relevant provisions of the Act commenced, and 10 August 2012, a period of over 7 years, 30 applications have been made for a coercive powers order. Not all of these applications have been successful.
[91]See above at [37]-[41].

Writing extra-curially, Weinberg J stated that public confidence in the independence of the judiciary is in no way diminished by the fact that judges regularly carry out non-judicial tasks such as serving on law reform bodies and as members of merits review bodies and specialist tribunals.[92] His Honour was not persuaded by the assertion that, by assuming the role of supervision of coercive powers legislatively conferred upon the executive, judges are in effect acting as police.[93] Further:

There is something almost surreal about the notion that public confidence in an independent and impartial judiciary will be shaken if judges supervise and monitor the use of coercive powers. Rather, it seems to me that the public expects judges to perform such tasks. The fact that such powers cannot be exercised without a measure of judicial control provides some safeguard for the rights of the individual. …[94]

[92]Weinberg, Justice Mark, ‘Australia’s Anti-Terrorism Legislation — Is there a Boilermakers Spanner in the Works?’ [2007] Federal Judicial Scholarship 1, 51-2 [172]-[174].

[93]Weinberg, Justice Mark, ‘Australia’s Anti-Terrorism Legislation — Is there a Boilermakers Spanner in the Works?’ [2007] Federal Judicial Scholarship 1, 53 [182].

[94]Weinberg, Justice Mark, ‘Australia’s Anti-Terrorism Legislation — Is there a Boilermakers Spanner in the Works?’ [2007] Federal Judicial Scholarship 1, 54 [183].

In my opinion, Totani[95] is distinguishable. In that case, a majority of the High Court (French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J dissenting) held that s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) (‘SOCC Act (SA)’) was invalid because it authorised the executive to enlist the Magistrates’ Court to implement decisions of the executive in a manner that was incompatible with the Court’s institutional integrity and which deprived the Court of the defining characteristic of the appearance of independence and impartiality.[96] This was because s 14(1) had the effect that, where the Attorney-General made a declaration that an organisation was a declared organisation and the Chief Commissioner of Police made an application to the Magistrates’ Court for a control order in respect of a person, the Court was obliged to make a control order if the Court was satisfied of the sole criterion that the person was a member of the declared organisation. Under the SOCC Act (SA), a control order immediately restricted the freedom of association of the person who was subject to it and exposed him or her to criminal penalties for breach of the order.
[95](2010) 242 CLR 1.
[96]Totani (2010) 242 CLR 1, 21 [4], 52-3 [82]-[83], 67 [149], 88-9 [226], 92-3, [236], 160 [436], 173 [481].

By contrast, the Act does not involve a member of the executive making an instrument that is comparable to a declaration by the Attorney-General under the SOCC Act (SA). A member of the police force simply makes an application to the Supreme Court supported by an affidavit. Section 8 sets out the criteria that must be satisfied before the Court ‘may make a coercive powers order’. The Court is not bound to make such an order. Importantly, a coercive powers order is not made in respect of any particular person and does not have any direct effect on the rights or freedoms of any person. The Court may, on its own initiative, revoke a coercive powers order. In no sense does the Act authorise the executive to enlist the Supreme Court to implement any decision of the executive in a manner that is incompatible with the Court’s institutional integrity. Nor does it deprive the Court of the defining characteristic of the reality and appearance of independence and impartiality.

[173]Sudi [2011] VSCA 266 (6 September 2011) [27] (citation omitted).

On the other hand, Weinberg JA considered that Ousley had confined collateral challenge ‘to challenges brought on the basis of something akin to “facial” or “patent” invalidity’.[174] His Honour described Ousley as imposing ‘significant constraints upon collateral review’[175] and as ‘severely [limiting]’ the grounds upon which a collateral challenge to an administrative act can be mounted.[176]
[174]Sudi [2011] VSCA 266 (6 September 2011) [261].
[175]Sudi [2011] VSCA 266 (6 September 2011) [244].
[176]Sudi [2011] VSCA 266 (6 September 2011) [238]. One of the rationales for a narrow approach to the scope of collateral challenge is to avoid criminal trials being unduly disrupted and juries being inconvenienced, while the trial judge undertakes a detailed examination of collateral issues such as the validity of a warrant. See Ousley (1997) 192 CLR 69, 104-5, 147; Sudi (2011) VSCA 266 (6 September 2011) [227].

Maxwell P did not discuss the effect of Ousley on the grounds upon which collateral challenge is available.

In my respectful opinion, a close examination of the judgments in Ousley supports Warren CJ’s second interpretation of that case.

Section 199(1)(c) of the CP Act (Vic) provides that, at any time before a criminal trial, the court may hear and decide any issue with respect to the trial that the court considers appropriate, ‘including an application to quash a charge in the indictment’. Mr Carter submitted that s 199(1)(c) permits the making of a pre-trial application to collaterally challenge the validity of the CPO.

Mr Livermore did not cavil with this proposition which, in my opinion, is correct. He submitted that, consistently with Ousley, a collateral challenge to the validity of a coercive powers order cannot be made on the ground of the insufficiency of evidence to justify the issuing of the order.

In my opinion, a collateral challenge to the validity of a coercive powers order will ordinarily be confined to the following grounds:

(a) The coercive powers order was not made in respect of any organised crime offence. Under this ground, a coercive powers order will be invalid if one of the five elements of the definition of ‘organised crime offence’ in s 3 of the Act is not satisfied.[177] This is because the Court’s jurisdiction to make a coercive powers order is confined to organised crime offences.[178]
[177]The five elements are listed above at [12] and below at [184].
[178]See s 8 of the Act and the definition of ‘coercive powers order’ in s 3.

(b) The judge who made the coercive powers order exceeded his or her jurisdiction by misconstruing the definition of ‘organised crime offence’ in s 3 of the Act.

(c) The judge who made the coercive powers order exceeded his or her powers in an error which appeared on the face of the record.

(d) The coercive powers order does not state that the Supreme Court is satisfied of the matters referred to in s 8(a) and (b) of the Act, having regard to the matters referred to in s 8(b)(i) and (ii), as required by s 9(1).[179]

(e) The coercive powers order is tainted by fraud, bad faith or other impropriety. Without being exhaustive, this would include a situation where the evidence in support of the application for the coercive powers order was false or misleading in a material respect.

[179]It is not necessary for me to decide whether failure to state any of the matters referred to in s 9(2) of the Act is a ground of invalidity.

I will now consider whether any of the above grounds have been established in relation to the CPO.

Is the CPO valid?

Mr Carter submitted that the CPO is invalid because it does not disclose that an ‘organised crime offence’ has been committed. He contended that a coercive powers order must indicate on its face that each of the five elements of the definition of an organised crime offence is satisfied.

It will be recalled from [12] above that s 3 of the Act defines an organised crime offence as an offence which:

(a) is an indictable offence punishable by imprisonment of at least 10 years; and

(b) involves two or more offenders; and

(c) involves substantial planning and organisation; and

(d) forms part of systemic and continuing criminal activity; and

(e) has a purpose of obtaining profit, gain, power or influence.

As discussed at [6] above, when it was made on 13 August 2008, the CPO recited the following:

THE COURT IS SATISFIED –
(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to –
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.

THE ORGANISED CRIME OFFENCE in respect of which this order is made is: Murder

As discussed at [8] above, on 9 October 2008, the CPO was ‘corrected’ by the addition of the handwritten words ‘of Wayne Keith Boyd on or about 9 November 2001’ after the word ‘Murder’.[180] The CPO was extended several times before it expired on 3 February 2012. The Accused has been provided with a similar coercive powers order that was signed by Cummins J on 26 September 2008 and which contained the typed words ‘Murder of Wayne Keith Boyd on or about 9 November 2001’. That order was revoked on 9 October 2008.
[180]Cummins J made an order ‘on the papers’ on 9 October 2008 for the correction of the CPO. That order recited that the correction was being made ‘pursuant to the inherent powers of the Court and rule 1.14 of the Supreme Court (Criminal Procedure) Rules 2008’. That rule declared that ‘the inherent power of the Court to correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission may be exercised at any time’.

It is clear from [185] above that, while the CPO describes the nature of the organised crime offence, it does not, on its face, expressly refer to any of the five elements of the definition of ‘organised crime offence’.

Mr Livermore submitted that the Act does not require that a coercive powers order state that the five elements of the definition of ‘organised crime offence’ are satisfied. He contended that s 9 is the only section of the Act that specifies the contents of a coercive powers order, and which relevantly provides that the order must state that the judge is satisfied of the matters set out in s 8.[181] In the present case, so it was said, the CPO satisfies this requirement.
[181]As appears from [18] above, s 9(2) requires that a coercive powers order contain other particulars. It was not contended that the CPO did not comply with s 9(2).

I agree with Mr Livermore’s submission. On its face, the CPO contains all the information prescribed by s 9. That section does not provide that a coercive powers order must state that each of the elements of the definition of ‘organised crime offence’ is satisfied. Accordingly, the absence of such a statement cannot invalidate the CPO.

In Ousley,[182] the listening device warrants were in the prescribed form. They contained all the matters required to be specified by s 4A(3) and (4) of the LD Act (Vic), but the prescribed form referred to only one of the two jurisdictional matters of which the judge issuing the warrant had to be satisfied. A majority of the High Court (Toohey, McHugh and Gummow JJ) held that s 4A(3) and (4) stated exhaustively the matters required to be specified in a warrant, such that there was no requirement to fully disclose the jurisdictional grounds relied upon in issuing the warrant.[183] Toohey, Gaudron, McHugh and Gummow JJ held that the inclusion of one jurisdictional fact on the warrants did not give rise to the inference that the judges who issued them had failed to satisfy themselves of another jurisdictional fact that was not included on the face of the warrants; the only inference to be drawn was that the judges followed the prescribed form.[184]
[182](1997) 192 CLR 69.
[183]Ousley (1997) 192 CLR 69, 82, 85, 110-11, 113, 127-8, 132.
[184]Ousley (1997) 192 CLR 69, 83-85, 88, 110-11, 113, 132.

The reasoning in Ousley is a complete answer to the ground of invalidity upon which Mr Carter relied.

Mr Carter has not relied on any of the other grounds of invalidity set out at [181] above. Accordingly, at present, there is no basis for me to conclude that the CPO is invalid.

However, that is not the end of the matter. Mr Carter submitted that I should defer making a final decision on the validity of the CPO until after resolution of the issue of whether the Accused is entitled to require production of documents that are said to be relevant to the validity of the CPO. That issue is discussed below.

Production of documents that are said to be relevant to the validity of the CPO

Mr Carter submitted that the Accused has a legitimate forensic purpose in seeking the affidavit material in support of the application for the CPO and the transcript of the hearing of the application in this Court (‘Documents’). The legitimate forensic purpose, so it was said, was to establish that the preconditions for the making of the CPO were not satisfied.

I have not looked at the Documents.

Mr Carter contended that the existence of two separately dated coercive powers orders relating to the same alleged organised crime offence creates a doubt about which order was the basis for the Custody Order, and thus supports the existence of a legitimate forensic purpose.

The relevant principles for determining an accused’s entitlement to seek production of documents in a criminal proceeding were summarised by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria[185] as follows:
[185][2011] VSC 3 (11 February 2011) (‘CAFP’).

The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:
(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c) the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’ that the documents sought under the subpoena ‘will materially assist the defence’.
(d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g) in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[186]

[186]CAFP [2011] VSC 3 (11 February 2011) [28] (citations omitted). I set out a similar summary of the principles in Victoria v Lane [2012] VSC 328 (7 August 2012) [17]-[21] (‘Lane’).

Before me, the parties were in agreement about the underlying principles set out at [197] above, but differed as to the application of these principles – in particular, the identification of a legitimate forensic purpose and whether such purpose had been established. Mr Livermore relied principally on the decision of the New South Wales Court of Criminal Appeal in Attorney-General (NSW) v Chidgey,[187] while Mr Carter relied principally on the decisions of the Western Australian Court of Appeal in Marrapodi[188] and the Supreme Court of the Northern Territory in LB.[189]
[187](2008) 182 A Crim R 536 (‘Chidgey’).
[188][2012] WASCA 103 (9 May 2012).
[189](2009) 25 NTLR 30.

In Chidgey, the accused served a subpoena on the New South Wales Commissioner of Police during a committal proceeding. The subpoena required the production of documents that were completed by the police in accordance with the LawEnforcement (Controlled Operations) Act 1997 (NSW) (‘LECO Act (NSW)’), as well as the applications seeking approval for the controlled operation which led to the charges against the accused for drug supply offences. The Commissioner of Police sought to have part of the subpoena set aside, submitting that there was no legitimate forensic purpose for providing the defence with access to the documents sought. The magistrate held that there was a legitimate forensic purpose, namely, that the documents would allow the accused to check whether there had been compliance with the requirements of the LECO Act (NSW) relating to the issuing of the authorities to conduct the controlled operation.

The New South Wales Court of Criminal Appeal held that the magistrate had erred. Beazley JA (with whom James and Kirby JJ agreed) stated that the legitimate forensic purpose identified by the magistrate amounted to no more than a proposition that the accused was entitled to engage in a ‘fishing expedition’ to ascertain whether there had been compliance with the LECO Act (NSW).[190] Her Honour continued:

There was no material before the magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A) [of the LECO Act (NSW)].
This is acknowledged in his Honour’s comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents ‘to discover whether he has a case at all’ … a party is not entitled to use a subpoena for that purpose.
…
…there was no suggestion that the police witnesses had made earlier statements that should be available for the purposes of cross-examination. Nor was there any suggestion whatsoever that there was any failure to follow correct procedures, or that any wrongdoing had been engaged in. In short, there was nothing at all to suggest that it was ‘on the cards’ that the subpoenaed material would ‘materially assist the [respondent’s] case’.[191]

[190]Chidgey (2008) 182 A Crim R 536, 556 [84].

[191]Chidgey (2008) 182 A Crim R 536, 556 [84]-[86] (citations omitted).

In LB,[192] the accused was charged under s 30(2)(a) of the ACC Act (Cth) with failing or refusing to take an oath or make an affirmation before an examiner conducting an examination under s 28(1) of that Act. The accused served a subpoena on the Australian Crime Commission for the production of documents to determine whether all of the essential or indispensable requirements for the examiner’s jurisdiction under the ACC Act (Cth) had been met.
[192](2009) 25 NTLR 30.

As discussed at [61] above, under the ACC Act (Cth), the ACC Board had the power to make a determination that had a similar effect to a coercive powers order made under the Act. The making of a determination provided authority to the examiner to serve a witness summons on a person. The documents that the accused sought were the minutes of the ACC Board meeting at which the determination was made and the reasons of the examiner for being satisfied that it was reasonable in all the circumstances to issue a witness summons on the accused.

In the Supreme Court of the Northern Territory, Southwood J held that, as an examiner conducting an examination under s 28(1) of the ACC Act (Cth) would have no jurisdiction to require a witness to take an oath or make an affirmation if the determination or the witness summons was invalid, a subpoena directed to documents going to those issues served a legitimate forensic purpose.[193] His Honour stated:

The respondent is not merely fishing, nor is he undertaking checking at large. In order to prove its case against the respondent the Crown has stated that it will be relying on the presumption of regularity to prove the case against the respondent. The Crown has said so in circumstances where all of the information which is relevant to the establishment of the alleged jurisdiction of the examiner to require the respondent to take an oath or make an affirmation is within the possession of the Australian Crime Commission. The scope and purpose for which the documents are sought has been specified. The issues arising for consideration are clearly defined. The inquiry is confined to checking if the essential requirements of the relevant jurisdiction of the examiner under the Act have been complied with. The documents are relevant to those issues and the documents have been precisely identified. The production of the documents is required for there to be a fair trial. To refuse production of the documents would leave the respondent with a legitimate sense of grievance. It would leave him with no ability to test the evidence which is relied on to establish the presumption of regularity in relation to a core aspect of the Crown’s case against him.
The case is quite a different case to the case of Attorney-General (NSW) vChidgey. In any event that case is not authority for the proposition that all checking in all circumstances amounts to an illegitimate forensic purpose.[194]

[193]LB (2009) 25 NTLR 30, 39-40 [29]-[30], 44 [47].

[194]LB (2009) 25 NTLR 30, 44 [47]–[48] (citation omitted).

In R v LB,[195] the Northern Territory Court of Criminal Appeal heard an appeal from a separate decision of Southwood J relating to the same accused. In that decision, Southwood J held that the witness summons that was served on the accused was invalid on the basis that, as the examiner did not give any reasons for issuing the summons, the examiner could not have been satisfied of a precondition for its issue, namely, that it was reasonable in all the circumstances to issue the summons on the accused.[196] The Court of Criminal Appeal held that a person who appears before an examiner pursuant to a witness summons and who refuses to take an oath or make an affirmation, cannot be found guilty of an offence under s 30(2)(a) of the ACC Act (Cth) unless the Crown proves that the summons was valid.[197]
[195](2011) 163 NTR 1.
[196]See R v LB (2010) 203 A Crim R 152, 162 [47].
[197]R v LB (2011) 163 NTR 1, 16 [62].

Most recently, in Marrapodi,[198] the respondent in each appeal had been charged with various offences of refusing to answer a question at an examination before an examiner of the Australian Crime Commission, contrary to s 30(2)(b) of the ACC Act (Cth). The respondents had attended the examination pursuant to a witness summons issued by the examiner under s 28(1) of the ACC Act (Cth). Each respondent sought production of the reasons for the issue of the witness summons and the statement of facts and circumstances and legal submissions in support, for the purpose of assessing whether the witness summons was invalid on grounds that did not appear on its face.
[198][2012] WASCA 103 (9 May 2012).

By majority (McLure P and Allanson J; Martin CJ dissenting), the Western Australian Court of Appeal held that the respondents had a legitimate forensic purpose in seeking production of the documents.

McLure P found that service of a witness summons under s 28(1) of the ACC Act (Cth) was not an element of the offence of contravening s 30(2)(b) of that Act.[199] Her Honour also held, without being required to determine the issue, that if a witness attended under compulsion of a witness summons, the validity of the summons was a condition of the power of the examiner to require that witness to answer a question.[200] On the issue of whether the respondents had a legitimate forensic purpose for seeking production of the documents, her Honour stated:

The existence and service of a summons are questions of fact. However, the validity of the summons is a question of law. Whether the presumption of regularity (or validity) applies to an element of an offence has not been authoritatively determined. If it does, the accused would bear an evidentiary onus only. I see no basis in principle to support a claim that a legal burden shifts to an accused in those circumstances.
My preliminary view is that if, as in this case, a summons under s 28(1) of the Act is valid on its face, the presumption of regularity arises and will be displaced if each of the first respondents satisfy an evidential burden. However, this issue was not fully ventilated in the appeal because it would not alter the result. If each of the first respondents bear an evidentiary burden on the matter of the validity of the summons, that too would support the primary judge's finding that they had a legitimate forensic interest in the documents the subject of each document summons.[201]

[199]Marrapodi [2012] WASCA 103 (9 May 2012) [38].

[200]Marrapodi [2012] WASCA 103 (9 May 2012) [39].

[201]Marrapodi [2012] WASCA 103 (9 May 2012) [47]-[48] (citations omitted).

Allanson J stated that R v LB was persuasive and that the fact that the respondents in the case at hand had been charged under s 30(2)(b) of the ACC Act (Cth) rather than s 30(2)(a) was not a material difference that affected the result.[202] Therefore, his Honour held that the validity of the witness summons was relevant to whether the respondents were required to answer questions, and the respondents had a legitimate forensic purpose in seeking production of documents relating to that issue.[203]
[202]Marrapodi [2012] WASCA 103 (9 May 2012) [117].
[203]Marrapodi [2012] WASCA 103 (9 May 2012) [118].

Allanson J referred to the decision of Smith J in this Court in Australian Crime Commission v Magistrates’ Court of Victoria,[204] as authority for the proposition that the expression ‘a person appearing as a witness at an examination’ in s 30(2)(a) of the ACC Act (Cth) refers to a witness who attends under a valid summons, and the power to require a witness to take an oath or make an affirmation is exercisable only where the witness is validly summoned.[205]
[204](2007) 173 A Crim R 572 (‘ACC v MCV’).
[205]Marrapodi [2012] WASCA 103 (9 May 2012) [104].

In that case, the accused was charged under s 30(2)(a) of the ACC Act (Cth) with the offence of refusing to be sworn in response to a witness summons issued by an examiner. The accused served a subpoena on the Australian Crime Commission seeking a document recording the examiner’s reasons for issuing the summons. Smith J accepted as correct the Australian Crime Commission’s concession that the existence of a document setting out the examiner’s reasons was a condition precedent to the valid exercise of the power to issue the summons.[206] His Honour held that the accused had a right to put the satisfaction of the precondition in issue[207] and had a clear legitimate forensic interest in seeking production of that document. His Honour stated:

The consequences of the opposing argument would be extremely disturbing; for to deny an accused the right to subpoena the document would create a situation where persons could be convicted and sent to jail for failure to answer an examination summons even though that summons was invalidly issued, there being no procedure available to an accused person at his trial to test that issue.[208]

[206]ACC v MCV (2007) 173 A Crim R 572, 578 [9], [19].

[207]ACC v MCV (2007) 173 A Crim R 572, 580 [19].

[208]ACC v MCV (2007) 173 A Crim R 572, 581 [21].

The Victorian Court of Appeal is yet to address the issues dealt with by Chidgey, LB and Marrapodi in the context of the Act. In the recent case of Shaw v Yarranova Pty Ltd,[209] which involved an application for an order for the production of documents in a costs dispute, Redlich and Mandie JJA stated (in obiter):

There will be no legitimate forensic purpose if, ‘all the party is doing is trying to get hold of the documents to see whether they may assist him in his case’. The Court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.[210]

[209][2011] VSCA 55 (3 March 2011) (‘Shaw’).

[210]Shaw [2011] VSCA 55 (3 March 2011) [26] (citations omitted).

Their Honours cited Chidgey (as well as other cases) in support of the first proposition in the above statement.[211] As I said in Victoria v Lane,[212] their Honours’ use of the expression ‘appear likely that the documents will materially assist the applicant’ in Shaw does not indicate a rejection of the ‘reasonable possibility’ test that has been generally accepted by this Court.[213]
[211]Shaw [2011] VSCA 55 (3 March 2011) [26] n 33.
[212][2012] VSC 328 (7 August 2012).
[213]See Lane [2012] VSC 328 (7 August 2012) [18] n 5.

Mr Carter submitted that the reasoning of Southwood J in LB and of the majority in Marrapodi, dealing with analogous offences in the ACC Act (Cth), support the Accused’s contention that, as the prosecution must prove the validity of the CPO, the Accused is entitled to place the validity of the CPO in issue and obtain material going beyond the face of the CPO.

Mr Livermore submitted that the CPO is valid on its face and that its tender in the trial against the Accused would be sufficient to prove that it was made and that it was in force at the time of the alleged offence. He contended that the Accused cannot seek to go behind the CPO to establish that the necessary preconditions for the making of a valid order under s 8 of the Act were not satisfied. This is because, so it was said, Ousley establishes that that is precisely the type of challenge that cannot be mounted, and it would be an impermissible fishing expedition in any event.[214]
[214]Mr Livermore relied on Weinberg JA’s reasons in Sudi [2011] VSCA 266 (6 September 2011) [221]-[246]. I have already discussed Sudi above at [175] to [178].

Mr Livermore submitted that, in so far as there is a conflict between Chidgey and LB, Chidgey should be followed.

Conclusion in relation to production of documents

Mr Livermore informed me that the DPP does not have possession of the Documents. Accordingly, the Accused will need to issue subpoenas directed to the Chief Commissioner of Police and/or the Chief Examiner. Those individuals would have an interest in seeking to set aside, in whole or in part, any subpoena that is served on them or to resist production of the Documents, in whole or in part, on grounds such as public interest immunity.

As I have not heard any submissions from the Chief Commissioner of Police or the Chief Examiner, the conclusions set out at [219] to [223] below are preliminary in nature and subject to any submissions that those individuals wish to make to the Court upon being served with any subpoena.

In addition, consideration will need to be given to whether the Act would prohibit production of the Documents pursuant to a subpoena unless an order is made under s 7 or some other provision requiring such production. Accordingly, the conclusions set out at [219] to [223] below are also subject to any submissions from the Accused, the Crown or a subpoenaed party on this issue.

In relation to the CPO, it is not necessary for me to decide whether the approach of the New South Wales Court of Criminal Appeal in Chidgey is to be preferred to the approach of the Western Australian Court of Appeal in Marrapodi and the Northern Territory Supreme Court in LB. This is because, in my opinion, on either approach, the Accused has demonstrated a legitimate forensic purpose and has established that there is a reasonable possibility that production of those parts of the Documents that are relevant to that purpose would assist him in his defence of the charge under s 36(3) of the Act.

When the CPO was made on 13 August 2008, it described the organised crime offence simply as ‘Murder’. The CPO did not give any details of the murder and did not indicate whether reference was being made to the murder of a single victim independently of any other criminal conduct, that is, a one-off murder, or to one or more murders that formed part of criminal conduct satisfying the five elements of the definition of an ‘organised crime offence’ in s 3 of the Act. If the reference to ‘Murder’ was to a one-off murder, the CPO would be invalid because it would not have been made in respect of an organised crime offence.

The fact that a similar coercive powers order was made on 26 September 2008 which described the organised crime offence as ‘Murder of Wayne Keith Boyd on or about 9 November 2001’ suggests that a doubt may have been raised by the applicant and by the Court about the validity of the original order that was made on 13 August 2008. The expanded description of the organised crime offence in the order of 26 September 2008 did not clarify on the face of the order whether it referred to a one-off murder.

The fact that, on 9 October 2008, the order dated 26 September 2008 was revoked and the original order dated 13 August 2008 was amended by hand to add the words ‘of Wayne Keith Boyd on or about 9 November 2001’ after the word ‘Murder’, suggests that further consideration was given by the applicant and by the Court to the issue of the validity of the original order and to the need for, or the efficacy of, the order that was made on 26 September 2008.

In the light of the Crown’s acknowledgement that it must prove that the CPO is valid before the Accused can be convicted of an offence under s 36(3) of the Act, the Accused has a legitimate forensic purpose in obtaining access to those parts of the Documents that are relevant to the issue of whether the preconditions in the Act for the making of the CPO (including any corrections, variations or extensions prior to 21 May 2009) were satisfied (‘Relevant Parts of the Documents’). The matters to which I have referred at [220] to [222] above are sufficient to give rise to a reasonable possibility that the Relevant Parts of the Documents would assist the Accused in his defence. Accordingly, the Accused is entitled to issue subpoenas directed at the Chief Commissioner of Police and/or to the Chief Examiner for the production of the Relevant Parts of the Documents.

I will not be in a position to finally decide whether the Accused is entitled to production of the Relevant Parts of the Documents until the Chief Commissioner of Police and the Chief Examiner have had an opportunity to make submissions on any subpoena that is served on them. Likewise, I will not be in a position to finally decide whether the CPO is valid until the issue of the Accused’s entitlement to production of the Relevant Parts of the Documents is resolved. If I finally decide that the Accused is not entitled to production of the Relevant Parts of the Documents, there would be no basis for a finding that the CPO is invalid. If I finally decide that the Accused is entitled to production of the Relevant Parts of the Documents, the validity of the CPO will depend on whether there is anything in the Relevant Parts of the Documents which supports a finding that the CPO is invalid.

Validity of the Custody Order

Mr Carter submitted that even if the Act and the CPO are valid, the Custody Order is invalid and that the Accused is entitled to production of any written record of the grounds upon which the Custody Order was made. He contended that a valid custody order is an element of the offence with which the Accused was charged, and that the Chief Examiner was not entitled to require him to take an oath or make an affirmation unless there was in existence both a valid coercive powers order and a valid custody order.

Mr Livermore informed me that, for the purposes of this proceeding, the DPP was content to proceed on the basis that the Crown must prove the validity of the Custody Order.

It is not necessary for me to consider the principles relating to an accused’s entitlement to production of documents pursuant to a subpoena in the context of the Custody Order. This is because, in the course of this proceeding, the Crown provided to the Accused the only document created by the Chief Examiner which contains a record of the grounds upon which the Custody Order was made. That document is the Custody Order itself.[215]
[215]In his oral submissions in reply, Mr Carter also made incidental reference to obtaining access to a transcript of an application to the Chief Examiner for the making of a further custody order. As I have not been provided with any meaningful information about this transcript, and Mr Livermore has not had an opportunity to make any submissions on it, I am not in a position to reach any conclusion in relation to it.

Therefore, the sole question for consideration is whether the Custody Order is invalid.

Section 15(4)(a) of the Act, when read in conjunction with s 18(4), provides that the Chief Examiner may issue a custody order ‘if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so, after consideration of … the evidentiary or intelligence value of the information sought to be obtained from the person’.

Section 15(6)(a) of the Act, when read in conjunction with s 18(4), requires the Chief Examiner, when issuing a custody order, to ‘record in writing … the grounds on which the [custody order] is issued’.

Section 15(10)(a) of the Act, when read in conjunction with s 18(4), provides that a custody order directed to a person must state ‘the general nature of the matters about which the person is to be questioned, unless the Chief Examiner considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence’.

Mr Carter submitted that the Custody Order is invalid, first, because the CPO is invalid and, secondly, because the Chief Examiner ought not to have concluded that it was reasonable to make the Custody Order in all the circumstances.

In my opinion, it would be premature for me to consider the validity of the Custody Order prior to finally determining the validity of the CPO. This is because s 18, under which the Custody Order was made, provides that it applies ‘if a coercive powers order is in force in respect of an organised crime offence’. I would also be assisted by more detailed submissions on the grounds upon which the Custody Order can be collaterally challenged.

Proposed order

In the light of the matters set out at [224] and [233] above, and subject to any submissions from the parties, I propose to make an order adjourning the further hearing of the Accused’s application under s 199(1)(c) of the CP Act (Vic) to a date to be fixed.

APPENDIX

List of defined terms and abbreviations

ACC Act (Cth) Australian Crime Commission Act 2002 (Cth)

ACC Board Board of the Australian Crime Commission

Act Major Crime (Investigative Powers) Act 2004 (Vic)

CAR Act (NSW) Criminal Assets Recovery Act 1990 (NSW)

CCOC Act (NSW) Crimes (Criminal Organisations Control) Act 2009 (NSW)

CP Act (Vic) Criminal Procedure Act 2009 (Vic)

CPOThe coercive powers order dated 13 August 2008, as corrected and extended, that was made pursuant to the Act
Custody Order The custody order made by the Chief Examiner on 13 May 2009 pursuant to the CPO, requiring that the Accused be brought before the Chief Examiner to give evidence
Documents The affidavit material in support of the application for the CPO and the transcript of the hearing of the application in this Court

DPP Director of Public Prosecutions

LD Act (Vic) Listening Devices Act 1969 (Vic)

LD Act (NSW) Listening Devices Act 1984 (NSW)

LECO Act (NSW) LawEnforcement (Controlled Operations) Act 1997 (NSW)

NSWCC New South Wales Crime Commission

Relevant Parts of
the Documents Parts of the Documents that are relevant to the issue of whether the preconditions in the Act for the making of the CPO (including any corrections, variations or extensions prior to 21 May 2009) were satisfied

Rules Supreme Court (General Civil Procedure) Rules 2005 (Vic)

SOCC Act (SA) Serious and Organised Crime (Control) Act 2008 (SA)

TI Act (Cth) Telecommunications (Interception) Act 1979 (Cth

[2012] VSC 350

21 August 2012