E v Chief Examiner
[2010] VSC 353
•12 August 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 3761 of 2010
| E | Plaintiff |
| v | |
| CHIEF EXAMINER | Defendant |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2010 | |
DATE OF JUDGMENT: | 12 August 2010 | |
CASE MAY BE CITED AS: | E v Chief Examiner | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 353 | (1st revision 27 August 2010) |
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JUDICIAL REVIEW – Major Crime (Investigative Powers) Act 2004 – Purpose of the Act - Direction made by Chief Examiner prohibiting publication and communication of evidence – Power to rescind direction – James v DPP [2006] VSC 384 – Section 43.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Z. Zayler | Melasecca Kelly & Zayler |
| For the Defendant | Mr R. Gipp | Office of Chief Examiner |
HIS HONOUR:
This is an originating motion for the judicial review of a decision of the Chief Examiner to rescind a non-publication order which had been made with respect of the plaintiff pursuant to s 43(2) of the Major Crime (Investigative Powers) Act 2004 (“the Act”). An order is sought to set aside “a ruling to rescind a non-publication direction.”
The grounds are:
(1)The Chief Examiner erred in ruling that he had power to rescind a non-publication direction, such power said to be deriving from s 43(1) of the Act.
(2)The Chief Examiner erred in ruling that he had (in these circumstances) power to rescind a non-publication direction, such power said to be deriving from s 43(1) of the Act.
(3)The Chief Examiner erred in ruling that he had (in these circumstances) power to rescind a non-publication directions, such power deriving from the common law.
(4)The Chief Examiner erred in ruling that he had (in these circumstances) power to rescind a non-publication direction, such power deriving from s 41A of the Interpretation of Legislation Act1984.
(5)The Chief Examiner erred in ruling that s 43(1) and 43(2) of the Act imposed a discretion in the making of a non-publication order in the circumstances under consideration.
(6)The Chief Examiner erred in ruling that there were changes in the relevant circumstances to the making of a non-publication direction. There was no relevant change in the circumstances as to the safety of E (and his family) or as to the reputation of same, save for deterioration should the direction be rescinded.
(7)The Chief Examiner erred in finding that the purpose of the Act is “to coerce fearful and reluctant witnesses to provide evidence…” The relevant purpose of the Act is to “investigate organised crime offences.”
(8)The Chief Examiner erred in not finding that the only pathway to a revocation or rescission of a non-publication direction in the circumstances under consideration is through the mechanisms provided by subsections 4 and 5 of s 43 of the said Act.
In short it is argued on behalf of the plaintiff that the Chief Examiner did not have power to rescind the order and the grounds 1,2,3,4 and 5 set out in the originating motion cover that general contention. The second general contention was that the Chief Examiner had erroneously rescinded the order because he had regard to matters which were irrelevant or erroneous such as constitute appellate error. Grounds 6 or 7 cover that contention. Ground 8 contended that a direction of this kind could only be rescinded or revoked pursuant to s 43(4) and (5) of the Act.
The history of this matter may be set out briefly. A coercive powers order was made by Bongiorno J on 23 July 2009 and varied by me on 12 November 2009. It remained in force until 22 July 2010. The plaintiff was summonsed as a witness. The summons was accompanied by a confidentiality notice which bound the witness. The plaintiff was examined on 21 January 2010, and it was during that examination a direction under s 43(1) prohibiting publication and communication of the evidence given. That direction was given in response to the requirements of s 43(2).
That direction made reference to the words of s 43(2) “might prejudice the fair trial of a persons”. No other direction was sought by or on behalf of the plaintiff at that stage.
What appears to be a standard exception was included in favour of the “Chief Commissioner of Police exercising his or her right of information sharing as detailed in s 67 of the Major Crime (Investigative Powers) Act 2004”.
It is fair to say that the main purpose of the making of that direction was to ensure that the plaintiff did not communicate his evidence to any unauthorised person.
On Monday 7 June 2010 an application was made by the plaintiff’s solicitor that the earlier direction be amended by adding the words “and the safety and reputation of E and his family members”. The direction was amended accordingly.
The application had been made in response to an application for the reason of the original direction by Victoria Police on 27 April 2010. The application to amend the direction was made on the same day, namely the 7 June 2010. When the Chief Examiner made the amendment sought, an argument was advanced by Mr Melasecca that the recently amended direction could not be rescinded because it involved consideration of the “safety and reputation”. It could not be rescinded because s 43(2) is expressed in mandatory terms. The support of the argument in those circumstances was somewhat surreal.
Mr Melasecca made a number of arguments which were set out in the reasons of the Chief Examiner:
“The Ten (10) points
…
The first point was that because of the mandatory nature of section 43(2) of the Act it cannot be varied unless there has been a change in the circumstances which required that the direction be made.
Secondly he argued that E had genuine and well founded concerns for his safety.
In this third and fourth points, Mr Melasecca sought to distinguish the decision of Morris J in the case of James (which will be referred to in detail later in this ruling) on the basis that, unlike [E], James had provided a statement which was part of the prosecution materials and his examination evidence was sought to be provided to the defence as part of the prosecution duty of disclosure.
It was argued as the fifth point that the scheme of the legislation did not envisage the public release of evidence obtained during an examination hearing because to do so would undermine the secretive nature of the proceedings and put “coerced witnesses in prejudice for their safety”. (page 29)
The sixth point involved a concession that I could release evidence to appropriate persons or authorities as long as such limited publication did not prejudice fair trial or safety and reputation issues.
It was argued as the seventh point that it was up to a court to determine whether it was in the interests of justice to provide evidence obtained by the use of coercive powers to a charged person. This point relied upon the procedures set out in sub-sections 43(4)(4A) and (5) of the Act.
There was a further reference to the distinguishing of the decision in James as point 9 and finally, as point 10 it was argued that there is severe coercion in bringing a person to an examination hearing where coercive powers are utilised and that the grounds for releasing any evidence obtained thereby must be “demonstrably justified.” (at page 30).
It was argued that in this case there was no justifiable basis for releasing the evidence.
This part of the argument did not conclude the submissions.
Privilege against self-incrimination issue
The decision of Warren CJ in DAS v Victorian Human Rights and Equal Opportunity Commission[1] was relied upon. It was argued that this decision recognised the importance of the prosecution immunity provided for under section39(3) of the Act by deciding that the immunity applied not only to direct evidence but also to derivative evidence in some circumstances. Mr Melasecca argued that if [E’s] evidence were released then despite the immunity, [E], would be placed in a position where he could be charged with perjury for giving false evidence in his police statement. As I indicated in the course of argument, in my opinion this argument is misconceived. The evidence given at the examination hearing wherein [E] admitted the falsity of his police statement is inadmissible against him in any criminal proceedings where he is the person charged. [E], in addition to the immunity, would be fully entitled to exercise the privilege against self-incrimination in any court proceedings so as to refuse to answer questions on the issue.
[1][2009] VSC 381.
The purpose of the Act
Next, Mr Melasecca argued that the Act was concerned only about investigating organised crime not its prosecution, and in support of this argument relied upon section 4 of the Act, which describes a coercive powers order as authorising the use of powers provided “for the purpose of investigating the organised crime offence in respect of which the order is made”.
Mr Melasecca was referred by me to a number of cases[2] which were said to support the view that the common law provides that where a statutory function is conferred upon a person there will be implied a power to do what is necessary for the performance of that function. This includes the power to rescind or revoke where it is necessary to achieve the statutory purpose which is conferred. After he was given the opportunity of considering these authorities, Mr Melasecca argued that the Act was only concerned with the investigation of organised crime offences not their prosecution and therefore the power to revoke or rescind for the purpose of a prosecution did not satisfy the criteria which justified the exercise of a discretion in that it was not being exercised to achieve the statutory purpose.”
[2]The Attorney General v Directors of the Eastern Railway Company (1880) 5 App Cas; Ward v Metropolitan Police Commissioner (2005) 2 WLR 1114; AA Pty Ltd v Australian Crime Commission (2005) 219 ALR 666; ASIC v Banovec (No. 2) (2007) 214 FLR 33.
It was argued on behalf of the Victoria Police that the Chief Examiner did have the power and that the general purpose of the Act did include prosecution.
The Chief Examiner’s carefully considered ruling, a copy of which is Annexure B to the Affidavit of Zygmunt Zayler filed herein, rejected the argument advanced.
The Chief Examiner said in his reasons:
“9. The power to rescind/revoke
In my opinion, for the reasons expressed herein, I have the power under section 43(1) of the Act to rescind/revoke a mandatory direction made pursuant to the requirements of sub-section 43(2) if I exercise the power reasonably and consistently with the scope and purpose of the Act. Indeed in circumstances where I have previously rescinded such a direction to enable the evidence of the witness to be published and communicated in order that the Crown prosecutor might fulfil the requirements of prosecution disclosure, the decision has been upheld as within power, appropriate and not erroneous by Morris J in the decision of James.
I also have the power implied by the common law because of the principle that a power conferred by Parliament carries with it the power necessary for its performance or execution. The power to rescind, amend or vary confidentiality arrangements put in place under powers provided for under the Act are powers which in my opinion are necessary to make the statutory powers conferred on the Chief Examiner effective in order to achieve the purpose for which the Act and the statutory function of the Chief Examiner were created. If these implied powers did not exist then the purpose for which the Act was created, that is to provide a regime for the use of coercive powers to assist in the investigation and prosecution of organised crime offences would be severely curtailed.
10. Conclusion
In my opinion it is clearly appropriate that I should accede to the application made by Victoria Police to rescind the confidentiality arrangements in place relating to the examination hearing of the witness [E] so that his evidence is able to be used in support of the prosecution case brought against [MK] charging him with serious criminal conduct which took place on Sunday 29 November 2009 in the exercise of my statutory powers contained within subsection 43(1) of the Act.
Although the application by Victorian Police relates only to the abovementioned defendant and the events of 29 November the witness [E] is also able to give important and relevant evidence as to interrelated events which took place at Coolaroo on the night of Saturday 28 November.
The decision I have come to is supported by the following considerations.
The evidence that [E] is able to give as to the events of 29 November is highly probative and concerns serious criminal conduct which takes place in the context of the organised crime offence the subject of the coercive powers order.
The whole purpose of the Act in my opinion is to seek to achieve this result, that is to obtain evidence of reluctant witnesses so as to assist investigating police in the fight against organised crime.
I accept that the witness is concerned as to his safety and reputation and that of his family however in the circumstances of this case this relevant consideration must carry less weight than the need for the witness to give important evidence in relation to serious criminal offences. One of the clear purposes of the Act is to seek to coerce fearful and reluctant witnesses to provide evidence relevant to organised crime offences. No doubt if there were circumstances where the evidence of a witness was of little evidentiary value and the safety and reputation important it may well not be reasonable to expose the witness to the risk of publication or communication. This is not the situation here.
If I had to act in accordance with my implied powers I would have come to the same result by applying the requirements of that power in the context of the facts referred to above.
Those representing the witness have indicated that there is a possibility that there will be a challenge to any ruling acceding to the Victoria Police application and in these circumstances I will delay the operation of my ruling so that it will operate from 9am Monday 5 July 2010.
I hereby rescind/revoke the following confidentiality arrangements in place in respect of the examination hearing of the witness [E] which took place on Thursday 21 January 2010.
1.The confidentiality notice issued by the Chief Examiner on Thursday 31 December 2009 under subsections 20(2)(b) and (c) of the Act directed to the witness and given to him at [address] on Thursday 5 January 2010.
2.The direction made in writing under the provisions of subsection 43(2) of the Act on Thursday 21 January 2010 during the examination hearing of the witness and marked as exhibit A in the examination hearing with the direction being amended on Monday 7 June 2010.
The rescission/direction is to be operative from 9am on Monday 5 July 2010.”
The directions contemplated by s 43(2), even though expressed in mandatory terms, are still made pursuant to s 43(1). It follows that the power given to the Chief Examiner with reference both to ss 43(1) and (2) of the Act include the words “except in such manner, and to such persons, as the Chief Examiner specifies”.
It would follow that the power of excepting persons or classes of persons from the order is very wide. It may have been in the present case that the exception already providing for the Chief Commissioner to act in accordance with s 67 of the Act may have been wide enough to achieve the purpose (see also James v Office of Chief Examiner and Director of Public Prosecutions[3]). It was argued on behalf of the plaintiff in James’ case the accused required the production of this material under the prosecution’s general obligation for disclosure. That difference does exist, but in that case, James was anxious for the direction to be maintained. His Honour ruled:
“Mr James submits that the Chief Examiner did not have power to rescind a direction once that direction had been given pursuant to s.43(1) of the Act. I do not accept this submission. Generally, when powers are given to persons pursuant to statute the Parliament intends that the person who is given the power to make a direction also has the power to rescind such a direction. That general proposition is confirmed by s.41A of the Interpretation of Legislation Act1984. It may be that the Chief Examiner gives a direction because the failure to do so might prejudice the safety of a person or a person's reputation. Then, shortly after making the direction, he becomes aware of new facts - or, for that matter, circumstances change - which make it appropriate that the direction be rescinded.
I would add that, once a direction is made, I would regard the legislation as permitting the Chief Examiner to vary the direction. In making this comment, I note that the final words in s.43(1) of the Act enable the direction to contain exceptions, either as to the manner of publication or communication or as to the persons to whom evidence might be published or communicated.”
[3][2006] VSC 384.
It seems to me that James is correct and provides sufficient authority for the Chief Examiner to have concluded that he had power. I accept that James was correctly decided for the reasons expressed by his Honour. It follows that I accept that the interpretation of s 43(1) is wide enough to allow rescission or that the Chief Examiner, who has the power to make a direction, has the implied power to rescind it.
The words in s 43(1) “except in such manner, and to such persons, as the Chief Examiner specifies” would give the Chief Examiner power to provide exception to the “world at large”, or so as to be public generally. The exception which could be stated to allow evidence to be used in a criminal proceeding which in turn would make it public can reasonably be brought about by rescission of the direction. Rescission also releases the plaintiff from his obligation to regard the matter as confidential.
I am also satisfied that there would, if necessary, be an implied power to allow rescission.
If the plaintiff is correct in the present submissions, then the only alteration to a direction within s 43(1) or (2) would be by the path of s 43(4), (4A) and (5).
It is necessary to set out these provisions:
“ (4) If-
(a) a person has been charged with an offence before a court; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Chief Examiner, being evidence in relation to which the Chief Examiner has given a direction under subsection (1), be made available to the person or to a legal practitioner representing the person-
the court may give to the Chief Examiner or the Chief Commissioner a certificate to that effect and, if the court does so, the Chief Examiner or the Chief Commissioner (as the case requires) must make the evidence available to the court.
(4A) When the Chief Examiner or the Chief Commissioner makes evidence available to the court in accordance with subsection (4), the court must give-
(a) Chief Examiner and the Chief Commissioner; and
(b) if a direction under subsection (1) involves the interests of a witness, the witness-
an opportunity to make submissions to the court as to whether or not the evidence should be made available, in full or in part, to the person charged or a legal practitioner representing the person.
(5) If-
(a) the Chief Examiner or the Chief Commissioner makes evidence available to a court in accordance with subsection (4); and
(b) the court, after examining the evidence and considering any submissions made under subsection (4A), is satisfied that the interests of justice so require-
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.”
That matter was dealt with specifically by Morris J in James:
“The second submission which was advanced on behalf of Mr James was his primary submission. It was to the effect that the scheme of s.43 is that if a direction is made that evidence must not be published or communicated then the only method for departing from that direction is that set out in sub-ss.(4) and (5) of the section. That is, if a direction is made, it was said the only method of departing from that direction was to persuade a court that it may be desirable in the interests of justice that the evidence be made available and then, when that evidence is made available, that the court is persuaded that it is in the interests of justice to make that evidence available to a defendant. In other words, the court would, first, make a decision as to whether to call for the evidence and, second, make a decision as to whether to make the evidence available to a defendant.
Such a course could be pursued in relation to the criminal charges that are about to be the subject of the committal hearing. Indeed, Mr Ryan SC, who is to prosecute those criminal charges and who appeared before me today, indicated that this would be an option available to him. However, the fact that he has indicated that it is an option does not determine the matter. Before I can provide any relief under s.56, I must be satisfied that the decision of the Chief Examiner is – or, at least, may be - legally erroneous. Hence, it is necessary for me to directly deal with the submission made as to the scheme of the section.
In my opinion, sub-ss.(4) and (5) of s.43 provide a means of avoiding the effect of a direction that evidence given before the Chief Examiner must not be published or communicated. However, sub-ss.(4) and (5) do not provide the only means by which such a direction might be avoided. In my view, such a direction may be avoided by the unmaking of the direction, as has occurred here, or by varying a direction by changing the exceptions to the direction as contemplated by the final words of sub-s.(1). Sub-ss.(4) and (5) provide an opportunity, in circumstances where a person has been charged with an offence before a court, for evidence that has been given before the Chief Examiner to be produced and possibly made available to the person charged with the offence concerned or a legal practitioner representing the person. Thus, sub-ss.(4) and (5) are primarily directed at giving a person who is charged with an offence before a court a right to instigate a process that may bring that evidence to their knowledge and to enable them to use that knowledge in the proceeding in which they are charged. It may be that sub-ss.(4) and (5) are also available to a prosecutor if the purpose of instigating the process is to bring evidence to the knowledge of the person charged.”
I adopt that reasoning and I do not accept the only path or the appropriate path for alteration of an order is by s 43(4) (4A) and (5) of the Act.
I accept that the Chief Examiner does have the implied power to rescind. I take that view because I regard the existence of that power as necessary to proper exercise of his functions generally to conduct compulsory examinations. I am prepared to proceed on the basis that the most recent statement of the law by Baroness Hale in Ward v Metropolitan Police Commissioner properly states the position:
“It is not sufficient that such a power be sensible or desirable. The implication hast to be necessary in order to make the statutory power effective to achieve its purpose.”[4]
[4][2005] 2 WLR 1114, 1112.
It is a very important feature of having power to conduct investigations of the kind to have the power to make and unmake a wide range of orders relating to the restructure of or publication of evidence. That is demonstrated by the wide terms of s 43 of the Act in any event.[5]
[5]See also s 20 of the Act.
The enforcement provisions of s 43 are contained in s 43(3):
“(3) A person who makes a publication or communication in contravention of a direction given under subsection (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).”
I regard it as being necessary in accordance with the powers which the Chief Examiner has, irrespective of the purposes of the Act, to have the power to rescind directions under s 43.
Such a power would be discretionary and would have to be exercised reasonably. It is argued on behalf of the plaintiff that the Chief Examiner acted beyond power because he relied upon and misinterpreted the purposes of the Act.
The purposes described in the Act are rather technical, but I am satisfied that it is a clear purpose of the Act to make evidence obtained available for the use in a prosecution.
Although the language of the Act expressed in terms “to investigate organised crime offences” does not include specifically the words “obtain evidence” or “to prosecute”. I am satisfied that investigation in this context, since it is connected to offences, includes the gathering of evidence, and by that I mean evidence which will be used in prosecution. It is not confined to the gathering of intelligence, although that also will be part of the process.
Complaint is made specifically about the Chief Examiner using the words:
“The whole purpose of the Act, in my opinion, is to seek to achieve this result, that is, to obtain evidence of reluctant witnesses, so as to assist investigating police in the fight against organised crime”.
The complaint is that because of that misinterpretation of the purpose of the Act, his discretion miscarried. At least in part, the Act is for the purpose of providing a regime for the authorisation and oversight of the use of coercive power to investigate organised crime offences. It may be that the Chief Examiner overstated the position when he said “the whole purpose”, but I am satisfied that at the very least it is a very important purpose of the Act and I suspect that his words should be read in that light.
I am satisfied that his discretion did not miscarry. The other matter of some importance was that the Chief Examiner regarded the plaintiff’s evidence as relevant and important to the prosecution case. That was in the context that I have set out a proper consideration.
I also reject the argument that the scheme provided under s 43(4)(4A) and (5) of the Act demonstrate that directions should remain in force only to be varied for the benefit of an accused person. Section 43(4)(4A) and (5) are necessary to ensure such a result, but that is because material such as this could not be obtained by an accused. In my view, that is based upon the assumption that other material will be provided to the prosecution as a matter of course.
I have not dealt separately with the contention on behalf of the defendant that the grounds, other than the grounds attacking the power of the Chief Examiner, were not open to general review. I am satisfied that the way in which the grounds were set out and argued, they did suggest error which could be reviewed.
It follows, however, from what I have previously said, that I would not allow the review on any of those grounds in any event.
I dismiss the application.
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