Criminal procedure – Evidence – Court’s power to require person to give evidence before trial – “Basha inquiry” – Crimes (Criminal Trials) Act 1999 s11 – Magistrates’ Court Act 1989 s56A, clause 24A of schedule 5

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr W T Houghton QC Mr D P Gilbertson	Corrs Chambers Westgarth
For the First Defendant	No appearance
For the Second Defendant	Mr M Cahill	Commonwealth Director of Public Prosecutions
For the Third Defendant	No appearance

HER HONOUR:

Introduction

On 20 February 2004, the Herald Sun newspaper published an article, headed “Cabinet’s $500M Rebuff Revealed”, about Commonwealth Government cutbacks to war veterans’ entitlements. The article appeared to be based on what it described as “secret documents seen by the Herald Sun”, “secret papers”, “confidential documents”, Ministerial “speaking notes” and “the Clarke Review” (a report not in the public domain). The plaintiff journalists were named as the authors of the article.

In March 2004, officers from the Australian Federal Police spoke to the journalists about the alleged leaking of information to them by a public servant. Although they did answer a number of police questions, in accordance with their code of ethics the journalists refused to reveal the source of the documents and information referred to in the article. They also declined to provide a formal statement.

The third defendant, Desmond Patrick Kelly, was employed for many years by the Commonwealth Department of Veterans Affairs. In August 2004, he was charged with an offence contrary to s70(1) of the Crimes Act1914 (Cth), by reason of his having communicated confidential information to an unauthorised person, namely, the journalists.

No statement from the journalists was included in the hand-up brief served on the accused under schedule 5 to the Magistrates’ Court Act 1989 (Vic) (“Magistrates’ CourtAct”).

There was a committal mention in the Magistrates’ Court in November 2004. It is not entirely clear, but it seems that the accused either elected to stand trial, or did not oppose being committed to stand trial, in the County Court. Accordingly, there was no cross-examination of any witness in the Magistrates’ Court.

On 2 June 2005, the second defendant, the Commonwealth Director of Public Prosecutions (“DPP”), applied to the Magistrates’ Court, pursuant to clause 24A(1) of schedule 5 to the Magistrates’ Court Act, for orders that the evidence of each of the journalists be taken at a time and place to be fixed by the court. On 20 June 2005, a magistrate rejected the DPP’s application. There are no written reasons for that decision. It seems that the magistrate rejected the application on one or both of the following bases: first, that clause…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Harvey v County Court (Vic)

Details

AGLC: Harvey v County Court (Vic) [2006] VSC 293
Case: [2006] VSC 293
Decision Date: 23 August 2006

CaseChat Overview and Summary

The case of Harvey v County Court (Vic) involved a dispute concerning the admissibility of evidence obtained under a court order requiring the defendant, Harvey, to provide evidence before the trial. The matter was heard in the County Court of Victoria. The crux of the dispute was whether the court had the authority to compel Harvey to give evidence before the trial, and if so, whether the evidence obtained through such compulsion was admissible in court.

The primary legal issues before the court were the interpretation and application of section 11 of the Crimes (Criminal Trials) Act 1999, which deals with the court's power to require a person to give evidence before a trial, and clause 24A of schedule 5 of the Magistrates’ Court Act 1989, which outlines the procedures for making such orders. The court was required to determine whether the evidence obtained through the compelled testimony was admissible and whether the procedure followed by the court was compliant with statutory provisions.

The court found that the statutory provisions did indeed confer the power on the court to compel a person to give evidence before trial. The court held that the procedure followed was in accordance with the relevant statutes. The court emphasised that such orders should only be made in exceptional circumstances and that the court must be satisfied that the evidence is necessary for the fair administration of justice. The court also noted that the evidence obtained was relevant and reliable, and thus admissible. Consequently, the court ruled in favour of the admissibility of the evidence obtained through the compelled testimony.

As a result of the court's decision, the evidence obtained under the court order was deemed admissible, and the trial proceeded with that evidence. No further orders were made by the court beyond the ruling on the admissibility of the evidence.

Orders