Elvey v Director of Public Prosecutions

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. AP-23-0141
MCV ref: P10328301

Andrew David LORIMER	Informant
V
Toby ELVEY	Appellant

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2024
DATE OF RULING:	28 August 2024
CASE MAY BE CITED AS:	Elvey v DPP
MEDIUM NEUTRAL CITATION:	[2024] VCC 1481

Pre-trial Rulings

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Subject:Conviction Appeal – Section 465AA – Section 465AAA – Failure to Provide Information or Assistance - Warrant
Catchwords: Validity of Order – Human Rights – Requirement for Open Court Hearing – Appeal Granted – Invalid Order – Not Guilty
Legislation Cited: Crimes Act 1958, s465AA – Magistrates’ Court Act 1989, s125
Cases Cited:Lednar v Magistrates’ Court (2000) 117 A Crim R - Smit v Lyons [2022] VSC 274.
Ruling: Appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	C. Duckett	OPP
For the Accused	S. Thomas

HIS HONOUR:

Background

In this matter, the Appellant, Toby Elvey, is charged with the indictable offence of failing to comply with an order to provide information or assistance on 29 September 2022, contrary to section 465AA of the Crimes Act 1958.
He pleaded guilty to the offence before a Magistrate at Melbourne on 14 February 2023 and was sentenced to imprisonment for 1 month. He filed an appeal against sentence on that day and was granted bail pending the appeal.
A further notice of appeal, against conviction, was filed on 25 July 2023, out of time. The Court granted leave to appeal against conviction on 24 April 2024. The matter was previously listed for hearing on 19 June 2024, however no Judge was available to hear the matter.
The only issue raised on appeal is whether the order purportedly made under section 465AA was valid. During the hearing, the appellant formally admitted all other factual matters alleged.
Whether or not the section 465AA order was validly made, was the only issue argued by either party at the hearing.
I note, for completeness, that the Certified Extract of the Magistrates’ sentencing decision and the Notice of Appeal both listed the offence in this case as being a failure to comply with a direction to assist contrary to section 465AAA, a summary offence. I have, nevertheless, treated the appeal as one against the indictable offence as originally charged and filed in the Magistrates’ Court, signed by the informant on 29 September 2022, which charge is attached to the original notice of appeal against sentence on the Court record.

Was the order purportedly made under section 465AA valid?

On 20 September 2022, Detective Acting Senior Sergeant Damian Storer, in accordance with section 465 of the Crimes Act 1958, based on affidavit, obtained a search warrant authorising entry, search and seizure of items at the Accused’s home at 2 Upland Road, Strathmore.
The warrant included an authorisation of police to give a direction under section 465AAA to the Accused to provide information or assistance in relation to any data or devices seized.
On 20 September 2022, Detective Storer, by further affidavit filed, applied for an order under section 465AA against the Appellant (the Order).
On 27 September 2022, a different Magistrate made the Order.
The parties both accept that the material provided to the Magistrates, their considerations and their states of satisfaction about relevant matters were all appropriate and that the Order was made by the Magistrate in chambers, that is, without a hearing conducted in open court.
The Appellant contends that, in the absence of such a hearing in open court, the Order was invalid. Counsel, Mr Thomas, submitted as follows:
(a)The requirement in section 465AA(2) for an 'application' in turn requires a determination in open court, such a requirement standing in contrast to the procedure in section 465 which does not stipulate the need for an ‘application’, only that ‘a magistrate’ may issue the warrant 'if satisfied by the evidence on oath or by affirmation or affidavit’ of relevant matters;
(b)The difference between a failure to comply with a direction authorised under section 465AAA, a summary offence, and the failure to comply with an Order under section 465AA, an indictable offence carrying a maximum penalty of 5 years imprisonment, supports the need for a determination of the matters in section 465AA in open court before such an onerous obligation is imposed on a person; and
(c)In the second reading speech introducing the then new section 465AAA, the Attorney-General observed that an order under the existing section 465AA 'must be obtained in open court (separately from the warrant process)'.[1]
[1] Hansard, Legislative Assembly, 5 August 2015, Crimes Amendment (Child Pornography and Other Matters) Bill 2015
During discussion, in response to a question from the bench about the underlying policy of any necessity for a hearing in open court, the Appellant referred the Court to Lednar v Magistrates’ Court (2000) 117 A Crim R 396 at [382]-[421] and Smit v Lyons [2022] VSC 274 at [89]-[111].
The prosecutor submitted:
(a)While section 465 requires oral evidence or an affidavit before a magistrate may issue a warrant, neither section 465AA nor 465AAA requires anything further procedurally, because the issuing of the warrant is a condition precedent to providing an authorisation or making an order;
(b)If parliament had intended there to be a further evidentiary or procedural requirement for an order under section 465AA, including a hearing in open court, then it would have provided for it expressly;
(c)Section 465AA is, with respect to any requisite procedural matters, equivalent to section 465AAA, which does not require an application or a hearing, save that it is an order directed to a known person;
(d)Police often seek an order under section 465AA at the same time as a warrant under section 465 at a time when the pressures of an investigation and the need to prevent serious crime are high, such that a need for a hearing in open court would be an undue burden and so was not intended by Parliament;
(e)while the Second reading speech supports the interpretation for which the Appellant contends, it should not be permitted to override the unambiguous words of the Act, which do not stipulate the need for a hearing in open court; and
(f)in any case, the Order was made by the Magistrate during sitting hours.
Having considered the reasons in Lednar, the Court requested the parties to address section 125 of the Magistrates’ Court Act 1989.
The Appellant submitted that section 125 requires proceedings to be conducted in open court unless otherwise provided by an Act or the Rules; that an application under section 465AA is a ‘proceeding’ as defined in section 3 of the Magistrates’ Court Act and that no Rule or Act excludes such an application from the open court requirement in section 125.
The prosecutor drew a distinction between a ‘proceeding’, to which section 125 applies and a ‘process’ to which it does not and submitted that an application under section 465AA is not a proceeding, but a mere process.
Neither party was able to direct the Court to any provision or rule that permitted an application under section 465AA to be determined contrary to section 125.
The making of an order under section 465AA is a significant step. Such an order is directed to a named individual and requires their compliance under threat, not only of penalty, but of conviction of an indictable offence. The rights enjoyed by a person charged with an indictable offence underscores the magnitude of taking the step of issuing such an order – these rights include the right to a trial by jury. The applicable maximum penalty is 5 years imprisonment.
An order under section 465AA also limits the named person’s enjoyment of fundamental rights, including those of privacy and the private ownership of property. The importance of such rights is reflected by their inclusion in Article 17 of the International Covenant on Civil and Political Rights and sections 13 and 20 of the Victorian Charter of Rights and Responsibilities.
The mere fact that the Order places a limit on the Appellant’s enjoyment of these rights does not mean that I should find in his favour. However, given the nature of both the Order and the dispute between the parties, I am required to interpret the meaning of section 465AA.
The task of statutory construction, among other things, requires consideration of fundamental rights[2] and that it is improbable that Parliament would abrogate such rights by the use of general or ambiguous words.[3] This principle of legality extends to the protection of fundamental principles and systemic values, not just long-standing common law rights.[4] Clearly, legislation can override or curtail the enjoyment of rights, but such an intention must be clear from unmistakable and unambiguous language,[5] which is not a low standard and it must be shown that the legislature has directed its attention to the restriction of the right in question.[6]
[2] Charter, s 32; Momcilovic v R (2011) 245 CLR 1 at [51] (per French CJ).
[3] Al-Kateb v Godwin (2010) 219 CLR 562 at [20] (Gleeson CJ).
[4] Lee v NSW Crime Commission [2013] (2013) 251 CLR 196 at [312]-[313] (Gageler and Keane JJ)
[5] Coco v R (1994) 179 CLR 427 at 437.
[6] X7 v Australian Crime Commission (2013) 248 CLR 92 at [158] (Kiefel CJ).
In this context, the issue in this case might be restated as, whether Parliament intended that an order under section 465AA should be made, involving the limitation on rights that it does, without a public hearing in open court, such as is provided for in section 125.
Section 125 is directed to ‘proceedings in the Court’. ‘Proceeding’ is defined in section 3 as ‘any matter in the Court’. The primary effect of section 125 is to mandate the public exercise of powers, subject to specific exceptions provided by an Act or that Court’s Rules.
The public hearing of a matter is a procedural protection against the possibility of decisions affecting a person’s rights being, or being perceived to be, made in an arbitrary way or for mere administrative convenience. The requirement in section 125 is an express legislative version of such a procedural protection.
The prosecutor’s position is that no such requirement is expressed in the relevant sections or is to be implied. It is a position that relies on reasoning by way of implication, rather than express language, to overcome the application of section 125. To do so would be, I find, to unacceptably dilute that procedural protection. As such, I do not accept the prosecutor’s submission on this point.
Whether or not I am right about the rights analysis, I note that the powers to issue a warrant under section 465 and to authorise police to give a direction under section 465AAA are vested in ‘a magistrate’. On the other hand, the requirement in section 465AA is for an ‘application’ to the ‘Magistrates’ Court’.
This difference is of significance. It tends to contradict the prosecutor’s submission that there is no distinction to be made between the sections, including on matters of procedure. Rather, it supports the Appellant’s submission that a section 465AA application is a ‘proceeding’, and that section 125 therefore applies, whereas an application to ‘a magistrate’ may be a matter of another kind, including such that it is not an application to a Court that attracts the definition of proceeding or the operation of section 125.
The definition of ‘proceeding’ in section 3 of the Magistrates’ Court Act is a broad one and there are important considerations in public policy favouring the treatment of an application under section 465AA as a proceeding. It involves a decision that directly determines the rights of a named individual, being the chief consideration that I have in this respect.
The provision considered in Lednar, section 464ZF of the Crimes Act 1958, involved an analogous balancing of individual rights and investigative powers – namely, whether a named individual’s rights to bodily integrity and privacy are overridden by the desire for information obtained from their DNA to aid investigation. The decision in that case is instructive and its reasoning can, in my view, readily be applied to the circumstances of this case.
As to the prosecutor’s submission about the need for urgency in circumstances that might warrant an application under section 465AA, the discussion of Beale J in Smit v Lyons is helpful. In my view, it is not to be assumed that an application under section 465AA should be made at the same time as the issuing of a search warrant, even though a warrant is a condition precedent for such an order.
There may be good reason for seeking such an order at a time later than the conduct of a search. The issuing of a warrant will permit police to search and seize items; direct those present to provide assistance (at risk of penalty for a summary offence under section 465AAA); put a person on notice of the powers under section 465AA; permit that person to obtain legal advice; and if on notice of an application, to appear before the Magistrates’ Court to argue against the making of an order. Such a person would thereby fully appreciate the importance of complying and the consequences for failing to do so, such that might warrant the imposition of penalty or conviction for an indictable offence, having gone through such a process.
Such a staged approach to exercising the power in section 465AA is open on a plain reading of those provisions. The mere fact that there may be circumstances, such as those the prosecutor submitted, that might require urgency is not a compelling basis for the blanket removal of the protection provided by section 125, especially when one considers the gravity of the step that the making of such an order entails.
I reject the submission that the open hearing obligation was met in this case simply by a magistrate considering and determining the application under section 465AA during sitting hours but not in open court.
I am satisfied, contrary to the prosecutor’s submission, that section 125 is an express legislative provision that applies to section 465AA regardless of any consideration of the human rights-based interpretation of that section.
In the absence of any statutory provision or rule that permits the order being made without compliance with section 125, I find the Order in this case was not made in accordance with law and so was invalid.
There being no other matters before me and having determined that the order was invalid, I find that any failure to provide assistance or information to police on 29 September 2022 was not contrary to a validly made order of the Magistrate’s court and so I find Mr Elvey not guilty of the offence.
Application for costs granted.

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[2024] VCC 1481

28 August 2024