In the Matter of an application pursuant to s 43A Major Crime (Investigative Powers) Act 2004 (Vic)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2009 1658

IN THE MATTER of an application pursuant to s 43A Major Crime (Investigative Powers) Act 2004 (Vic) by Chief Commissioner of Police

Applicant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2014
DATE OF RULING:	2 October 2014
HOW OBTAINED:	On the certificate granted on 4 September 2014 by the Honourable Justice Lasry under s 43A(1) of the Major Crime (Investigative Powers) Act 2004 (Vic)
CASE MAY BE CITED AS:	In the Matter of an application pursuant to s 43A Major Crime (Investigative Powers) Act 2004 (Vic)
MEDIUM NEUTRAL CITATION:	[2014] VSC 679

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[Redacted version]
CRIMINAL LAW – Major Crime (Investigative Powers) Act2004 (Vic) ss 43A, 43B – evidence given to Chief Examiner subject to restricted publication direction made under s 43(1) of the Act – application by Chief Commissioner of Police under s 43A of the Act for release of restricted evidence to person charged with offence – whether the court has power to make restricted evidence available under s 43A of the Act for the purpose of assisting the prosecution of a person charged with an offence – whether the evidence should be made available in the interests of justice - The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Imrie	Victorian Government Solicitor
For the Chief Examiner	Mr J Forsaith	Office of the Chief Examiner
For the witness Jean Ross	Mr C Carr	Justice Connect

HIS HONOUR:

Introduction

This matter involves the very important question whether evidence compulsorily obtained from a witness by the Chief Examiner, exercising powers under the Major Crime (Investigative Powers) Act 2004 (Act), should be released to parties concerned with a criminal prosecution where doing so may jeopardise the safety of the witness who gave the evidence.

On 4 September 2014, Lasry J gave a certificate under subsection 43A(1) of the Act to the Chief Commissioner of Police (Chief Commissioner), the applicant in this proceeding. Such a certificate may be given if the court considers it may be desirable in the interests of justice that ‘restricted evidence’, as defined in the Act, be made available to a person charged with an offence or to a legal practitioner representing that person.[1]
[1]Major Crime (Investigative Powers) Act 2004, s 43A(1) (‘MCIP Act’)

After the grant of such a certificate, the restricted evidence must be made available to the court[2] (which, in this case, it has been) and the court must give the Chief Examiner, the Chief Commissioner and (where applicable) the witness who gave the restricted evidence an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or in part, to the person charged.[3] Recently, each of those parties made submissions to the court on that subject.
[2]Ibid s 43A(2)
[3]Ibid ss 43A(3),(4)

Section 43A(5) provides that, following those steps:

The court may make the restricted evidence available to the person charged or a legal practitioner representing the person charged, and to the Director of Public Prosecutions, if, after examining the restricted evidence and considering any submissions made under subsection (3), the court is satisfied that the interests of justice so require. [emphasis added].

[*The accused] is shortly due to stand trial in this Court for the murder of [*the deceased] on [*redacted] together with a number of charges, including [*redacted].[4] Restricted evidence was given to the Chief Examiner in [*redacted] by the witness (EN379, to who the Court has given the pseudonym ‘Jean Ross’), [*redacted]. Her evidence implicates [*the accused] in the murder of [*the deceased].
[4]The trial is due to commence on [*redacted]. Pre-trial argument, including argument concerning the severance of the charges listed on the indictment, was due to commence on [*redacted]. The certificate referred to in [3] above was granted on 4 September 2014 and the submissions, also referred to in [3], were heard on 26 September 2014 after a short adjournment to allow Ms Ross to obtain legal representation. In the circumstances, the pre-trial argument was postponed until [*redacted], although neither the DPP nor the defence have been informed of the reason.

After Ms Ross gave her evidence in July 2013, the Chief Examiner made a direction under s 43(1), which remains in effect, restricting the publication of the evidence on the grounds that failure to do so might prejudice her safety. It is that direction that brings Ms Ross’s evidence within the definition of ‘restricted evidence’.[5]
[5]At the time Ms Ross gave her evidence, the Act did not define evidence that was the subject of such a direction to be “restricted evidence”: that definition was only introduced in 2014 as will be explained below.

The Chief Commissioner argued that the interests of justice warrant the restricted evidence being made available to [*the accused], his legal representative and to the Director of Public Prosecutions (DPP). The Chief Examiner has not adopted any position on the question whether the evidence should be made so available but has confined himself to making submissions on the operation of the Act. Ms Ross opposed the making of any order that the restricted evidence be made available to [*the accused].

Ms Ross raised two arguments in opposition to any order making her evidence available to [*the accused]:

(a) first, that on the proper construction of s 43A under which the Chief Commissioner has applied, the court has no power to order that restricted evidence be made available to a person already charged with an offence when, as here, the true purpose of the application is to make evidence available to the prosecution to strengthen its case against the charged person; and

(b) secondly, even if the court does have the power to make the order, it is not in the interests of justice that it do so; that is, so it is said, because the value of Ms Ross’s evidence to the prosecution of [*the accused] has not been shown to be sufficient to justify exposing her to the acknowledged risks to her safety that are likely to flow from the revelation that she gave the evidence.

Background facts

[*Redacted]. On [*redacted], [*the accused] was arrested and later charged with the murder of [*the deceased] on [*redacted]. He has been in custody since. His trial for the murder of [*the deceased], together with other charges, is due to commence in this Court on [*redacted].

On 15 April 2013, King J made a coercive powers order (CPO) under the provisions of the Act in respect of two organised crime offences, one of which was the attempted murder of [*redacted] on [*redacted]. On 10 April 2014, T Forrest J extended the CPO for a further 12 months.

On [*redacted], Ms Ross gave evidence before the Chief Examiner after she was served with a summons, issued pursuant to the CPO, to attend the office of the Chief Examiner to do so. Initially, the Chief Examiner declined to make a direction under s 43(1) restricting the publication of the evidence given by Ms Ross at the examination. However, after the completion of the evidence, and in the light of further information obtained, the Chief Examiner did make such a direction on the grounds that, if he failed to do so, there might be prejudice to the safety of Ms Ross. In those circumstances, a restricted publication direction is mandatory: s 43(2).

The Chief Examiner directed as follows:

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

must not be published or communicated, except to those members of police personnel (as defined in the Act) who are lawfully engaged in the investigation of the organised crime offence the subject of the coercive powers order made by the Supreme Court of Victoria on 15 April 2013 in the form or manner of… [the video recording, audio recording, written transcript or a summary of the evidence given at the examination].

Does s 43A authorise the court to make the evidence available to a person already charged, for the purpose of assisting the prosecution of that person?

The Act has recently been amended pursuant to Part 6 of the Criminal Organisations Control and Other Acts Amendment Act 2014 (‘2014 Amending Act’). The 2014 Amending Act introduced s 43A with effect from 27 August 2014. I will set out the full text of s 43A below. Before doing so, I should say something about the history of this provision and its context in the scheme of the Act as a whole.

Scheme of the Act

A thorough description of the scheme of the Act, as it existed in 2013, was given by the Court of Appeal in The Chief Examiner v Mary Brown (a pseudonym)[6]. A more succinct summary will suffice for present purposes.
[6][2013] VSCA 167 [36]-[49] (‘Mary Brown’).

Until the 2014 Amending Act, the relevant purpose of the Act was –

To provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences.[7]

[7]MCIP Act, s 1(a).

An ‘organised crime offence’ is an indictable offence punishable by 10 years’ imprisonment or more, involving two or more offenders and substantial planning and organisation, forming part of a systemic and continuing criminal activity, and having a purpose of obtaining profit, gain, power or influence or of sexual gratification (where the victim is a child).[8]
[8]Ibid s 3.

The Act provides for the appointment of the Chief Examiner and other Examiners.[9] The power of the Chief Examiner to summon and examine persons to achieve the purposes of the Act is triggered by a Supreme Court judge making a coercive powers order in respect of a specified organised crime offence.[10] Such an order is obtained on the application of a member of the police force.[11]
[9]Ibid pt 3.
[10]Ibid ss 4, 9(2)(a).
[11]Ibid s 5.

If a coercive powers order is in force, the Supreme Court or the Chief Examiner may issue a witness summons to any person requiring that person to attend and be examined or produce documents.[12] The Supreme Court or the Chief Examiner may give a notice to the person who is summonsed stating that the summons is confidential and that it is an offence to disclose the existence of the summons or the subject matter of the organised crime offence in relation to which it was issued.[13]
[12]Ibid ss 14(6), 15.
[13]Ibid s 20.

It is an offence punishable by imprisonment of up to 5 years to fail, without reasonable excuse, to attend in answer to such a summons, to refuse or fail to answer a question or to knowingly give false or misleading evidence.[14] Privilege against self-incrimination is abrogated[15] although legal professional privilege is maintained.[16] An examination must take place in private and only limited persons are permitted to attend.[17]
[14]Ibid ss 37, 38.
[15]Ibid s 39.
[16]Ibid s 40.
[17]Ibid s 35.

Until the 2014 Amending Act, there was no explicit statement in the Act authorising the use of evidence or material, gathered under these coercive powers, for the purpose of any prosecution. To the extent that reference was made to use of the material for the purpose of a prosecution, it appeared in Part 6 of the Act. Part 6 has provisions for ‘information sharing’[18] and ‘secrecy’.[19] The Chief Commissioner of Police is permitted to share information derived under a coercive powers order with local and foreign law enforcement agencies (including state and federal police forces) and various government agencies in the circumstances described in s 67. Section 68 makes it an offence for the Chief Examiner and those involved in carrying out functions under the Act, or any member of police personnel, to make a record of, divulge or communicate information acquired in the performance of their functions under the Act. Specifically excepted from that offence is the recording or divulging of information … ‘in the case of a member of the police force, for the purpose of investigating or prosecuting an offence’.[20]
[18]Ibid s 67.
[19]Ibid s 68.
[20]Ibid s 68(2).

None of the persons mentioned above can be required to divulge to a court any matter discovered through the performance of a function under the Act except, in the case of a member of the police force, when that person is a party to the relevant proceeding or when it is necessary for the purpose of a prosecution instituted as a result of an investigation carried out by the police force into an organised crime offence.[21]
[21]Ibid s 68(3).

Section 43

Within that context, s 43 of the Act provided for the Chief Commissioner to make a direction prohibiting the publication or communication of evidence given by a witness if certain conditions applied.

Section 43, as it existed before 27 August 2014, provided:

43       Restriction on publication of evidence
(1)       The Chief Examiner may direct that—
(a)       any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—

must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(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).

(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.
(6)Nothing in this section empowers the Chief Examiner to give a direction under subsection (1) that would restrict the exercise of powers or the performance of duties by the Victorian Inspectorate under this Act or any other Act or affect a person's right under this Act or any other Act to complain to the Victorian Inspectorate.

It is important to note several features of s 43 before turning to the cases that have interpreted it:

·A direction made under s 43(1) (a ‘restricted publication direction’)[22] was mandatory if one of two circumstances applied. Those circumstances applied if failure to make a direction –
• ‘might’ prejudice the safety or reputation of a person, or
•‘might’ prejudice the fair trial of a person who has been or may be charged with an offence.[23]

·In its terms, the Chief Examiner could specify exceptions to the restricted publication direction as to the manner in which and to whom the evidence could be published or communicated.[24] Otherwise, any publication or communication of the evidence in contravention of the direction was a criminal offence punishable by up to five years’ imprisonment.[25]
·The section established a mechanism for making the evidence available to a person charged with an offence before the court, only if the court ordered that such evidence could be made available. That mechanism involved three steps one of which included the opportunity for submissions to be made to the court by the Chief Commissioner, the Chief Examiner and the witness who gave the evidence (but not the Director of Public Prosecutions or the person charged).[26]
[22]Also referred to in some of the cases mentioned below as a ‘non-publication order’.
[23]MCIP Act s 43(2).
[24]Ibid s 43(1).
[25]Ibid s 43(3).
[26]Ibid ss 43(4), (4A), (5).

The interpretation given to s 43 before the 2014 Amending Act

Since the enactment of the regime in s 43, several issues had been raised before the courts concerning its operation. Those issues included:

(a)whether, having made a restricted publication direction under s 43(1) the Chief Examiner could revoke or rescind the direction when the circumstances leading to the making of it still applied; and
(b)whether, when making a restricted publication direction on the grounds that failure to do so might prejudice the safety of the witness, the Examiner had power to carve out an exception to the prohibition so as to allow the evidence to be used in the prosecution of any person charged or to be charged.

The cases in which these issues were analysed were James v DPP (‘James’)[27], E v Chief Examiner[28], AJH v Chief Examiner (‘AJH’)[29], YG v Chief Examiner (‘YG’)[30] and Mary Brown[31].
[27][2006] VSC 384.
[28][2010] VSC 353.
[29][2011] VSC 499.
[30][2012] VSC 385.
[31][2013] VSCA 167.

In James, the Chief Examiner had made a restricted publication direction under s 43(1) on the grounds that failure to do so might prejudice the safety or reputation of James or might prejudice the fair trial of persons who had been or were to be charged with serious offences. The Chief Examiner later rescinded that direction when James was about to be called at a committal proceeding in relation to serious charges brought against a third party. The prosecutor was aware of the evidence given by James to the Chief Examiner. The prosecutor formed the view that, as part of his duties as prosecutor, he should make available to the defence a copy of the transcript of the evidence given by James before the Chief Examiner. The view was taken because it was thought the evidence was relevant to the credit of James.

Morris J took the view that the legislation permitted the Chief Examiner to rescind or vary the direction, relying upon s 41A of the Interpretation of Legislation Act 1984.

Further, Morris J rejected the submission that the only method for departing from a direction made under s 43(1) was by the mechanism set out under subsections (4) and (5) of the section. In so ruling, his Honour said:

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.[32]

[32]James [2006] VSC 384 [11].

The last two sentences of the passage quoted above are of some importance in the case presently before the court. Emphasis was placed by Ms Ross upon his Honour’s statement that subsections (4) and (5) are primarily directed at giving the person who is charged a right to commence a process which ultimately would bring the evidence to that person’s knowledge and enable them to use it in the proceeding which they are charged. Likewise, Ms Ross relied upon the last sentence which seemed to contemplate that the prosecutor could instigate the process if it was for the purpose of bringing the evidence to the knowledge of the person charged.

In E v The Chief Examiner Coghlan J was also faced with an application to review a decision of the Chief Examiner to rescind a restricted evidence direction that had been made under s 43(1) of the Act. His Honour followed Morris J in James, agreeing that whilst subsections (4) and (5) provide one means of avoiding the effect of a direction under s 43(1), it was not the only means.[33] Coghlan J made some observations about the Chief Examiner’s power to provide exceptions to a restricted publication direction. His Honour was of the view that the power to make exceptions under s 43(1) would give the Chief Examiner power to provide exceptions to the ‘world at large’.[34]
[33]E v The Chief Examiner [2010] VSC 353 [22].
[34]Ibid [17].

Furthermore, although the Act as it then stood only specified that the purpose of the Act was to provide for a regime for the use of coercive powers to investigate organised crime offences, and not explicitly to prosecute them, his Honour was of the view

“[t]hat it is a clear purpose of the Act to make evidence obtained available for the use in a prosecution”.[35]

[35]Ibid [28].

The question of whether or not the processes for taking evidence authorised by the Act exist for the purpose of investigation and prosecution of organised crime offences has been the subject of discussion in a number of cases. Any uncertainty that existed was resolved by the 2014 amendments whereby Parliament added the words “and prosecute” in subsection 1(a) of the Act, a matter to which I will return.

The power of the Chief Examiner (or delegate) to rescind a restricted publication direction once again came before the court (Beach J) in AJH. Again, the direction had been made on the basis that a failure to make such a direction might prejudice the safety of the witness. The delegated examiner in that case later rescinded the direction, concluding –

… that the need to provide the relevant important evidence of [AJH] to ensure the fair trial of [named others] outweighs the personal safety and reputation issues that relate to [AJH] and his family.[36]

It was apparent that the examiner revoked the restricted publication direction because the evidence given by AJH before him was of highly probative value in the prosecution of a third party.

[36]AJH [2011] VSC 499 [13].

Beach J did not disagree with Morris J in James that the power to make a direction under s 43(1) of the Act included a power to rescind such a direction. However, Beach J concluded that in purporting to rescind the direction in the case before him, the examiner had either taken the view that the prejudice to the safety of the witness remained extant or had not taken into account the jeopardy to the safety of the witness at all. On the evidence, his Honour was of the view that the circumstances which mandated the making of the direction still existed. That being so, his Honour concluded:

Section 43 does not permit the Chief Examiner (or his delegate) to give a non-publication direction that must be given because of the existence of the criteria set out in sub-s (2) and then to rescind that non-publication direction where those criteria continue to exist. To do so would deprive s 43(2) of its operative effect. By contrast, sub-s (4) provides a means by which a non-publication direction might be avoided even though the circumstances set out in sub-s (2) still exist.[37]

[37]Ibid [20].

In relation to the use of the power to rescind a restricted publication direction, his Honour said this:

Lest it be suggested that by the construction of ss 20 and 43 of the Act which I have preferred, a court hearing a prosecution might be deprived of relevant evidence, it is to be remembered that there is a mechanism under sub-ss (4) to (5) of s 43 by which such evidence might be made available to such a court. On the other hand, if it is thought that the Chief Examiner (or his delegate) should have a greater power to assist in providing information for prosecutions, then the Act needs to be amended. At present, save to the extent to which I have already referred, the Act is silent in respect of such matters.[38]

[38]Ibid [34].

In the case of YG, Lasry J considered whether a Chief Examiner could use the exception power as a means of allowing restricted evidence to be used in the prosecution of a third party charged with an offence. In YG, the Chief Examiner had made a restricted publication direction on the footing that a failure to do so would prejudice the safety or reputation of the witness. But he made an exception in three circumstances:

(a)except where the Chief Commissioner exercised his or her right of sharing information pursuant to s 67 of the Act;
(b)except publication or communication by members of the Victoria Police lawfully engaged in the investigation of an organised crime offence or by members of the Victoria Police for the purposes of a prosecution of an offence instituted as a result of an investigation carried out by them into an organised crime offence or an offence under the Act; or
(c)except publication or communication by the Office of Public Prosecutions for the purpose of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence or an offence under the Act.

Lasry J concluded that there was no power given by s 43(1) to make either of the exceptions provided in subparagraph (b) or (c), and further held that it was unnecessary to make the exception in subparagraph (a) because the statute otherwise provided for it. In so concluding, his Honour said:

The order made appeared to contemplate that the evidence may be incorporated into the prosecution hand up brief and provided to the accused prior to committal or trial pursuant to the prosecutor’s duty of disclosure. The appropriate mechanism for achieving this outcome is set out in s 43(4) of the Act. The requirements of s 43(4) acknowledge the coercive nature of the examination that is possible as a result of the Act, and the risks that may arise for a witness in giving such evidence. The Chief Examiner is not, in my opinion, empowered to permit that a transcript of an examination may be released to an accused by way of an exception to a non-publication order made under s 43(1).[39]

[39]YG [2012] VSC 385 [46].

A little later in his judgment, his Honour made more specific reference to the mechanism in subsections (4) and (5):

Importantly, sub-ss (4) and (5) specify a procedure by which, under the supervision of a court before which a person has been charged with an offence, evidence given before the Chief Examiner can be made available to the person charged or that person’s legal practitioner. In my opinion, this section provides the particular mechanism by which evidence that is subject to a non-publication order and given before the Chief Examiner might eventually reach a person charged with an offence. This can only occur after the court before which they are being dealt has examined the evidence and decided that it is in the interests of justice to release it. There is also opportunity for the witness to be heard about the resulting impact of the information’s release on their safety and/or reputation.[40]

[40]Ibid [51].

Focusing on the criteria which the Act provides for making evidence available, his Honour commented:

The provisions in the Act seem to illustrate that evidence before the Chief Examiner will only be disclosed when a court considers it is in the interests of justice for that to occur. Such circumstances may include the desirability that a witness be cross examined about significant inconsistencies between the evidence given in the court and the evidence that had been given in secret before the Chief Examiner.[41]

[41]Ibid [61].

The decision of Lasry J in YG was appealed to the Court of Appeal. The Court of Appeal’s judgment, upholding Lasry J’s decision, is Mary Brown. Tate JA gave the principal judgment, Harper JA[42] and Garde AJA[43] agreeing.
[42]Mary Brown [2013] VSCA 167 [1].
[43]Ibid [158].

Tate JA addressed, as one of the two issues on appeal, whether s 43(4) was the sole means by which evidence obtained through the use of coercive powers by the Chief Examiner could be disclosed to a court. The Chief Examiner had submitted that the use of evidence obtained by coercive means for prosecution was an incidental purpose of obtaining the evidence. Reliance was placed upon what was said by Merkel J in Health Insurance Commission v Freeman[44] to the effect that the use of certain evidence gathered for the purposes of a prosecution lay at the heart of the purposes of the investigatory power conferred under the particular statute with which his Honour was dealing. In response, Tate JA said:

So much can be accepted, as can the indication given by s 14(6)(a) and s 15(4)(a) of the Act, that ultimately the reason behind the issuing of a witness summons will be the evidentiary or intelligence value of the answers to be given. That value may well lie in the reliance that can ultimately be placed upon those answers in a prosecution against a third party, or upon the information or evidence obtained as a result of further investigations prompted by those answers. The linkage between investigations and prosecutions, adverted to by Merkel J in Health Insurance Commission v Freeman, can be admitted. The question remains as to what mechanisms are provided by the Act for the disclosure of information, obtained through the use of coercive powers, in a prosecution.[45]

[44](1988) 88 FCR 544, 555-556.

[45]Mary Brown [2013] VSCA 167 [66].

Her Honour then surveyed the cases to which I have just referred, and others. In doing so her Honour reflected on the observations made by Coghlan J that the power to create exceptions under s 43(1) would extend to making an exception for the ‘world at large’. Her Honour respectfully disagreed with Coghlan J, saying that creating an exception to the world at large would be tantamount to refusing to make a restricted publication direction in circumstances where a duty may have been imposed on the Chief Examiner under s 43(2) to make it.[46]
[46]Ibid [72].

On the question whether one of the purposes of the Act was to obtain evidence for the prosecution of offences, her Honour observed:

While there may be a general and indirect linkage between the investigation and prosecution of organised crime offences, this is not sufficient in my view to elevate the prosecution of offences to a purpose of the Act or a purpose for which evidence may be obtained under the Act.[47]

[47]Ibid [93].

The ultimate conclusions of her Honour are worth setting out in full:

In my view, it will be for the court to determine, under s 43(5), whether the interests of justice require that particular evidence given before the Chief Examiner be made available to the person charged or a legal practitioner representing that person. It is for the court to determine whether the evidentiary value of the answers given by a witness, in relation to whom a non-publication order has been made, is such that disclosure is required in the interests of justice. That decision could only be made after an opportunity had been extended to the Chief Examiner, the Chief Commissioner and the witness who gave the evidence, to make submissions on disclosure. It is the role of the Court to hear from those parties on disclosure and the impact such disclosure might have on the witness. Those issues are not issues which the Chief Examiner is empowered to determine.
In my view, it is the mechanism the Act provides pursuant to ss 43-45 that allows a court to find appropriate resolution, in the context of an actual prosecution, to the issue of the disclosure of the answers given by a witness in confidence. In my opinion, where a non-publication order has been made, putting to one side those occasions where a non-publication order can be lawfully rescinded, the mechanism provided by ss 43–45 is the only means by which evidence given by a witness can be relied upon in a prosecution. The power to create exceptions under s 43(1) does not extend to permitting the evidence of a witness obtained in an examination to be released to members of Victoria Police or the Office of Public Prosecutions for the purpose of prosecution.
The mechanism provided under s 43(4)–(5) contemplates a staged process. The first stage, under sub-s (4), is for the evidence to be made available to the court. That requires the court (which may or may not be the court in which the trial of the relevant organised crimes offence is taking place), before, or at the time of, the trial, to be satisfied that it may be desirable in the interests of justice for the evidence to be made available to the person charged with the offence or a legal practitioner representing that person. As Morris J said in James the first stage is for the court to ‘make a decision whether to call for the evidence’. Sub-section (4) is silent as to who is to make the application to the court to call for the evidence. It is consistent with s 43, however, for the application to be made by the Chief Examiner or the Chief Commissioner. While it is a pre-condition of s 43(4) that a person has been charged with an offence before a court (s 43(4)(a)), s 43 does not contemplate that the application will be made by the person charged; such a scenario would be unlikely as, if a non-publication order has been made and remains in effect, the person charged ought to have no knowledge of the evidence given (or even of the fact of the examination).
If the Court decides to call for the evidence, the second stage, under sub-s (4A), is for the court to extend an opportunity, as mentioned above, to the Chief Examiner or the Chief Commissioner and the witness, for submissions on whether the evidence should be made available to the person charged, or his or her legal practitioner, in full or in part. It is noteworthy that sub-s (4A) does not require that an opportunity be afforded either to the person charged, or to the prosecution, to make submissions on the relevance or importance of the evidence. This is consistent with an understanding that, at this stage, neither the prosecution nor the defendant will be aware of the evidence given before the Chief Examiner.
The third stage, under sub-s (5), is for the court to make a decision as to whether to make the evidence available to a defendant, which it may only do if it is satisfied that the interests of justice require that disclosure. It is as the result of that decision that a defendant is made aware of the answers of a witness. …
It may be that, as Morris J observed in James, the mechanism under s 43(4)–(5) is ‘also available to a prosecutor if the purpose of instigating the process is to bring evidence to the knowledge of the person charged’. That is, it may be that, in some circumstances, an application to the court to call for the evidence is made by a prosecutor. The Chief Examiner appeared to accept this. This may be facilitated by the information-sharing mechanism under s 67. This would appear to be what the judge below contemplated when he said that:
Section 67 provides a mechanism by which the police or office of the Director of Public Prosecutions will become aware of evidence given before the Chief Examiner or his delegate. Under the principles which would require disclosure of that evidence to an accused person, the court before which that person is to be dealt can be informed and the procedure specified in s 43(4) and following can be embarked upon.[48]

[48]Ibid [94]-[95], [98]-[101].

The state of the law following Mary Brown may, for present purposes, be summarised this way:

·Although the power to make a s 43(1) restricted publication direction carried with it a power to rescind the direction in appropriate circumstances, it would not be lawful to rescind such a direction where the risk to the safety or reputation of a witness that mandated the direction continued to exist;
·Having made a restricted publication direction under s 43(1), the Chief Examiner did not have the power to make the evidence given by a witness available to a person charged with an offence, or to the prosecution, by means of an exception to the direction itself;
·In such circumstances, including a circumstance in which the evidence is of significant probative value for the purpose of prosecution, the proper and only means of making such evidence available to a person charged with an offence was by the mechanism provided in subsections 43(4)-(5);
·Doubt existed about the extent to which the purpose of the Act was directed to the prosecution of organised crime offences as distinct from the investigation of those offences; and
·Doubt had also been expressed as to whether the Chief Commissioner was empowered by s 67 of the Act to share with the Director of Public Prosecutions evidence obtained by examinations conducted before the Chief Examiner.

So, the foregoing represented the state of authority on the interpretation of s 43 immediately prior to amendments introduced by the Victorian Parliament with effect from 27 August 2014. Importantly, it was the state of the law that Parliament is presumed to have known when it introduced the amendments by the 2014 Amending Act.[49] Earlier in 2014, by the Major Crime (Investigative Powers) Amendment Regulations 2014 a regulation was made expressly stating that the Director of Public Prosecutions for Victoria, amongst others, was a body prescribed for the purpose of receiving information derived under the coercive powers order for the purposes of information sharing provided in s 67 of the Act. This regulation addressed the doubt referred to in the last of the bullet points in the previous paragraph.
[49]Re Alcan Australia Limited & Ors; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] 181 CLR 96, 106. As to the significance of this observation, see further below [68].

2014 amendment

I now turn to the 2014 amendment. For present purposes, the more relevant amending provisions:

(a)made it clear that one of the purposes of the Act (as set out in s 1) is to provide for the use of coercive powers to prosecute as well as investigate organised crime offences;[50]
(b)introduced a new defined term, ‘restricted evidence’, being evidence that is the subject of a restricted publication direction made under s 43(1);[51]
(c)removed reputational prejudice as one of the bases upon which a notice might be given under subsections 20(2) and (3) requiring the confidentiality of a witness summons;[52]
(d)altered the threshold for making a restricted publication direction pursuant to s 43(1) and removed reputational prejudice as a ground for making it[53]; and
(e)introduced new sections 43A and 43B (as described above) in conjunction with the substitution of a new section 43(4) and the repeal of former sections 43(4A) and (5).[54]

[50]2014 Amending Act s 156

[51]Ibid s 157.

[52]Ibid s 158.

[53]Ibid s 163.

[54]Ibid ss 163 and 164.

Because of their significance in this case, I set out the full text of the amended s 43 and the new ss 43A and 43B:

43       Restriction on publication of evidence
(1)       The Chief Examiner may direct that—
(a)      any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—

must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice—
(a) the safety of a person; or
(b)the fair trial of a person who has been or may be charged with an offence.

(2A)To avoid doubt, a reference in subsection (2)(a) or (b) to a person includes a person who has given, or may be about to give, evidence before the Chief Examiner or produced, or may be about to produce, a document or other thing to the Chief Examiner.
(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).
(4)If a person is charged with an offence against this Act, nothing in this section or section 43A prevents restricted evidence from being published or communicated by the Chief Examiner or the Chief Commissioner to the court or to the person charged or a legal practitioner representing the person charged.
* * * * *
(6)Nothing in this section empowers the Chief Examiner to give a direction under subsection (1) that would restrict the exercise of powers or the performance of duties by the Victorian Inspectorate under this Act or any other Act or affect a person's right under this Act or any other Act to complain to the Victorian Inspectorate.

43A Release of restricted evidence to a person charged with an offence
(1)If a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.
(2)If the court gives a certificate under subsection (1), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.
(3)If restricted evidence is made available to a court under subsection (2), the court must give each person referred to in subsection (4) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the person charged or a legal practitioner representing the person charged.

(4)       For the purposes of subsection (3), the persons are—
(a)      the Chief Examiner; and
(b)      the Chief Commissioner; and
(c)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.

(5)The court may make the restricted evidence available to the person charged or a legal practitioner representing the person charged, and to the Director of Public Prosecutions, if, after examining the restricted evidence and considering any submissions made under subsection (3), the court is satisfied that the interests of justice so require.

43B Release of restricted evidence where person not yet charged
(1)The Chief Commissioner may apply to a court for an order that restricted evidence be made available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if the Chief Commissioner suspects on reasonable grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made so available.
(2)On an application under subsection (1), the court may direct the Chief Examiner or the Chief Commissioner to make the restricted evidence available to the court.
(3)If the court gives a direction under subsection (2), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.
(4)If restricted evidence is made available to the court under subsection (3), the court must give each person referred to in subsection (5) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence.

(5)       For the purposes of subsection (4), the persons are—
(a)      the Chief Examiner; and
(b)      the Chief Commissioner; and
(c)      the Director of Public Prosecutions; and
(d)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.

(6)The court may, by order, make the restricted evidence available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if, after examining the restricted evidence and considering any submissions made under subsection (4), the court is satisfied that—
(a)there are reasonable grounds for the suspicion founding the application for the order; and
(b)the interests of justice require the evidence to be made so available.

(7)If restricted evidence is made available to the Director of Public Prosecutions under this section and a person is subsequently charged with an offence as a result, nothing in this Act prevents the Director of Public Prosecutions from making the evidence available to the person charged or a legal practitioner representing the person charged.

(8) In this section—
court means the Supreme Court or the County Court.

Focusing specifically on s 43, subsection (1) was not changed by the amendment. Subsection (2) now provides that the Chief Examiner must give a direction under subsection (1) if satisfied that failure to do so ‘would reasonably be expected to’ (rather than might) prejudice the safety of a person (omitting ‘or reputation’ of a person).

Section 43A substantially reproduces subsections 43(4), (4A) and (5) as they existed before the amendment. Section 43A retains the same three step process as described by Tate JA in Mary Brown culminating in the same critical test: that is, whether the court is satisfied that the interests of justice require restricted evidence to be made available to the person charged or a legal practitioner representing the person charged. Importantly, it is now provided in subsection (5) that the court is to consider whether restricted evidence should be made available, not only to the person charged with an offence or to that person’s legal practitioner, but also to the Director of Public Prosecutions. This appears to make explicit what was previously regarded as implicit. I will return to the significance or otherwise of that change later.

The new provisions now make clear who it is that may make an application to the court for the release of restricted evidence whereas previously it was unstated. Otherwise, the provisions are simply reordered and have the benefit of a defined term “restricted evidence” to save repetition.

Section 43B is entirely new. It is important to notice the differences between ss 43A and 43B.

Whereas s 43A (and its predecessor s 43(4)-(5)) were concerned only with the release of restricted evidence in circumstances where a person had already been charged with an offence, s 43B is concerned with release of restricted evidence where a person is not yet charged. It had no equivalent in the Act prior to amendment.

Importantly, whereas s 43A is focused on the desirability, in the interests of justice, that restricted evidence be made available to a person charged with an offence before the court, s 43B is focused on whether the restricted evidence be made available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence at a time before such person is charged.

So, compared to s 43A, s 43B is not only focused on a different period of time in relation to the charging of a person but is also, by its terms, focused on a different person to whom the evidence should be made available. Further, unlike s 43A (and its antecedent) the power to release restricted evidence in s 43B is directed towards a purpose – the purpose of prosecuting a person for an offence. Section 43A does not mention purpose at all.

Additionally, the criterion for the release of evidence in s 43A only rests upon the court being satisfied that it is in the interests of justice to make the restricted evidence available. By contrast, the test in s 43B has two components. The first is whether the court is satisfied that there are reasonable grounds for suspicion that there are reasonable prospects for the conviction of a person for an offence if the evidence is made available. The second is whether the interests of justice require the evidence to be made available.

Further, under s 43A, the persons who must be given the opportunity to make submissions as to whether the restricted evidence should be released are the Chief Examiner, the Chief Commissioner and, where applicable, the witness. Under s 43B, in addition to those persons, the Director of Public Prosecutions is also to be given such an opportunity.

Finally, the applicant for an order in s 43A may be either the Chief Commissioner, the Director of Public Prosecutions or the person charged whereas in s 43B the applicant may only be the Chief Commissioner.

Submissions

By her counsel, Ms Ross argued that s 43A, when properly construed, only provides a mechanism for making restricted evidence available for the purpose of permitting an accused to defend himself or herself. It does not, she argues, permit the release of restricted evidence to further the prosecution case in a pending trial.

Ms Ross commenced her argument by contending that the interpretation of the provisions should be considered against the principle of legality upon the same reasoning as applied by Tate JA in Mary Brown when considering the power to create exceptions to a restricted publication direction under s 43(1).[55] On that basis, she submitted that the court ought to prefer a restrictive interpretation of s 43A.
[55]Mary Brown [2013] VSCA 167 [92].

In support of her contentions, Ms Ross pointed to the fact that s 43A is headed ‘Release of restricted evidence to a person charged with an offence’ (emphasis added). She then emphasised the focus in s 43A, at every point, is on whether the restricted evidence be made available to a person charged with an offence:

·In 43A(1) the preliminary consideration is whether it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence.
·In s 43A(3) the requirement is that the relevant parties be given opportunity to make submissions as to whether or not the restricted evidence should be made available to the person charged or the legal practitioner representing the person charged.
·Section 43A(5) permits the court, after hearing the submissions, to make the evidence available to the person charged or the legal practitioner representing the person charged. Ms Ross submitted that the fact that the evidence is also to be provided to the DPP does not alter the real focus of s 43A but merely makes explicit what must follow as a necessary consequence of the evidence being made available to the person charged.
·The reference in s 43A(5) to the court being satisfied that the interests of justice so require, is a reference back to whether the evidence should be made available to the person charged.

Having emphasised the focus in this way, Ms Ross argued that the content of ‘the interests of justice’ and what they ‘require’ in s 43A is determined by the statutory context in which those phrases appear. In the written submissions filed on her behalf she argued:

18In this context, the interests of justice will be directed to the subject matter of the submissions which must be considered, which are in turn directed to whether the evidence ought be disclosed to an accused. The reason that it will be in the interests of justice for evidence to be disclosed to the accused need hardly be stated; a fair trial requires that an accused be provided with evidence in the possession of the state, which might assist his or her defence, for example by rendering an exculpatory explanation more likely or impugning the credibility of a prosecution witness.
19.The interests of justice, in the context of s 43A(5), requires a consideration of whether the evidence needs to be made available to the accused, notwithstanding the interests which led to the making of the non‐publication direction, in order to secure a fair trial for the accused.

Ms Ross then sought to contrast ss 43A and 43B. Her counsel observed, as I mentioned above, the different focus between the two sections on to whom the evidence is to be made available and the fact that s 43B specifies a purpose for the release of the evidence, namely ‘for the purposes of prosecuting a person for an offence’. Ms Ross argued that s 43A operates to ensure that an accused person is armed with restricted evidence when that is necessary in the interests of justice, whereas s 43B operates to provide the prosecution with restricted evidence in defined circumstances. Further, she argued, the restriction in s 43B on the circumstances in which the prosecution may secure the release of restricted evidence indicates a clear legislative choice to make evidence available only if that evidence is sufficiently important that it is required to initiate a prosecution of a person.

Ms Ross argued that the phrase ‘in the interests of justice’ in the two provisions must have different meanings or content. In her written submissions she contended:

20.That is, the interests of justice – when considering the publication to the accused pursuant to s 43A – refers to evidence which the accused must have access to in order to have a fair trial. (In contrast, the corollary phrase in the context of s 43B(6) is directed at ensuring that the prosecution has evidence which is so essential as to found a potential prosecution.)

Notwithstanding the force in her arguments and the persuasive way in which they were presented, I am unable to accept the submissions advanced on behalf of Ms Ross. In my view the argument has several flaws.

First, the interpretation Ms Ross wishes to place upon s 43A gives to it a substantially more confined operation than the interpretation that had been given to the antecedent provisions in s 43(4)-(5) in Mary Brown. Notwithstanding that s 43(4)-(5) were also focused on making evidence available to a person charged, the court had interpreted those provisions to include the authority to release evidence given at an examination where, in substance, that release was intended to make evidence available for the prosecution of a person charged. Not only does s 43A re-enact those provisions in substantially the same form, they also explicitly provide that the evidence is to be made available to the DPP as well as to the person charged.

Subject to an argument I address below, there is no indication in the text of the amended provisions, or in the Amending Act, to suggest that Parliament intended s 43A to be given a different meaning to the meaning that the courts had given to subsections 43(4)-(5). Nor, in my view, does the second reading speech give any such indication. In those circumstances, s 43A should be construed in the same way that ss 43(4)-(5) have been interpreted.[56]
[56]Re Alcan Australia Limited & Ors; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] 181 CLR 96, 106; Commissioner of Taxation v Energy Resources of Australia Limited (2003) 135 FCR 346, 351 [13]; Commissioner of Taxation v H (2010) 274 ALR 1, 7 [27]; Tuohey v Freemasons Hospital (2012) 37 VR 180, 185 [17].

It is to be remembered that a restricted publication direction may be made either to protect the safety of a witness or to further the fair trial of a person who has been charged. In those circumstances, it is unsurprising that the question to be decided by a court under s 43A (as it was under subsections 43(4)-(5)) was whether the information should be released to the person charged. That is because the release of the evidence to the person charged may either jeopardise the safety of the witness or, possibly, provide evidence for the benefit of the accused to ensure his or her fair trial. The release under s 43A (as with its antecedent) is not restrained by any particular purpose. The criteria for its release is focused upon its effect or consequence which may benefit the prosecution or defence, or both (in different ways), but in any case it must be in ‘the interests of justice’.

Further, as the later discussion in these reasons reveals, it can be a very complex question whether particular evidence is of benefit, or most benefit, in part or in whole, to one side or the other in a criminal prosecution In my view, in searching for legislative intention, one would not be inclined to a construction of s 43A in which the existence of the discretion to make the evidence available first depended on making a judgment about who the evidence would benefit.

In my view, the only reason why s 43A might be interpreted differently from the antecedent subsections 43(4)-(5) would be if the juxtaposition of the new s 43B with s 43A implied that s 43A should be given a different meaning. Ms Ross’s argument is that the addition of s 43B requires that a different meaning be given to s 43A because s 43B should be construed as providing the only means by which evidence can be made available for the purpose of prosecution.

But, in my view, s 43B has been enacted to fill a vacuum which previously existed under the Act and not to provide an exclusive means of releasing the evidence to aid a prosecution. Subsections 43(4)-(5) did not assist the Chief Commissioner if he wished to make available to the Director of Public Prosecutions evidence that might be pivotal in a decision whether to prosecute a person for an offence. So, whereas the previous provisions enabled the Chief Commissioner to seek an order that evidence be made available to the DPP for a prosecution against a person who had already been charged, there was no equivalent mechanism to enable the Chief Commissioner to make available to the DPP evidence that might make the difference to whether a prosecution was commenced or not. The alternative, which clearly could not be contemplated because it would involve a breach of the prosecutor’s duty, was that the a prosecutor initiate a prosecution (despite there being insufficient evidence to do so) in order to make an application for the release of the restricted evidence.

In my view, it was for that reason that s 43B was enacted. So understood, it does not provide any reason for construing s 43A differently from its antecedent provisions.

For these reasons, I do not accept the submission for Ms Ross that the “interests of justice” referred to in s 43A is confined in its application to the question whether evidence must be provided to the accused in order for that person to have a fair trial. Even having regard to the principle of legality, I do not consider that the text of the provision, seen in context in the whole scheme of the Act and with a full appreciation of its legislative history, calls for some more restricted interpretation. In my view, as one of its purposes, s 43A exists to be used by the Chief Commissioner to apply to have evidence made available to the DPP to aid a prosecution that has already been instigated.

Should the restricted evidence be made available to [*the accused] and the DPP?

The “interests of justice” is a broad and flexible concept. In Mickelberg v The Queen (No 3)[57] Malcolm CJ of the Supreme Court of Western Australia said:

… (t)he interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice.

[57](1992) 59 A Crim R 288, 302-3.

But the above statement only addresses one facet of the ‘interests of justice’. Clearly, a consideration of the interests of justice in the context of this type of application involves weighing the competing interests of an individual whose safety has been put in some jeopardy as a consequence of being compulsorily examined, on the one hand, and the public interest in the due administration of justice on the other.

In my view, the interests of justice at least require that I weigh the probative value of the evidence and its significance in the prosecution of the accused against the consequence to the witness should I order its release. That exercise requires me to consider the nature and strength of the witness’s evidence in the context of the prosecution case as it currently exists.

I accept the submission of the Chief Examiner that, when considering relevance and probative value in the proceedings before the court, one must have regard to the particular charges in question, how the prosecution case is put, the evidence sought to be led and any defences and interlocutory applications. In forming its view, the court should examine the restricted evidence itself. And this should occur against the background of the whole of the evidence that constitutes the Crown case or, at least, a summary of it.
Case against [*the accused]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
[*redacted]
Due administration of justice
The Chief Commissioner submitted that the evidence of Ms Ross is of “immense evidentiary value” in the trial of [*the accused] for the murder of [*the deceased].
In that context, the Chief Commissioner listed the following as important matters for my consideration in assessing the value of Ms Ross’s evidence for the due administration of justice:
·The seriousness of the offence and the circumstances of its commission.
·The circumstantial nature of the case against [*the accused] (strong, but not overwhelming).
·The fact that Ms Ross is capable of giving the only evidence of direct admissions for the murder (which are said to be consistent with the manner of the commission of the crime).
·The evidence undermining the so-called ‘alibi evidence’ in a circumstantial case.
·Evidence of preparatory acts and subsequent acts for which there is no similar evidence currently put against [*the accused].
·Substantial evidence regarding motive (which is arguably inconsistent with the manner in which the prosecution currently puts its case).
Not only, says the Chief Commissioner, would the prosecution be denied the evidence, but the defence would also be denied access to information which might allow it to fully and fairly mount its defence. Although the Chief Commissioner was not able to identify any particular aspect of Ms Ross’s evidence that might assist the defence, it seems to me that an important way in which [*the accused] might use her evidence would be in aid of his argument for severance of the charges. Additionally, given that the evidence of [*redacted] now purports to introduce a new explanation for why [*the accused] may have wished to kill [*the deceased], any differences in the version provided by Ms Ross might be used to discredit [*redacted]’s version, and vice versa.
It is also not without significance that, on 5 May 2014, [*the accused]’s lawyers issued a subpoena to the Chief Commissioner seeking a wide range of documents. Those documents included records of conversations and other information concerning the shooting of [*redacted], [*the deceased]’s knowledge of that event and the relationship between [*redacted] and [*the deceased] in or about [*redacted]. Although I am not currently aware of what has been provided in answer to that subpoena, I am aware that certain documents were to be provided. At the very least, it indicates a strong interest on the part of [*the accused]’s defence in obtaining information that concerns the very subject matter that some of Ms Ross’s evidence touches upon.
No party denies that the risk to Ms Ross’s safety, should her evidence be made available to [*the accused], has a real foundation. Nevertheless, the Chief Commissioner submits that the legislative regime implicitly contemplates scenarios where a witness’s safety or reputation is at risk but the ‘interests of justice’ nevertheless require the evidence to be disclosed. He submits this is such a scenario. He submits that the risks to Ms Ross’s safety must give way to the important public interests involved. I take the Chief Commissioner’s argument to be that the public interest in the due administration and in securing convictions of those who are guilty of serious criminal offences, if that can be proved to be the case, outweighs the safety of the witness. It is not that the interests of justice are a balancing factor against the safety of the witness; rather, witness safety is an element for consideration in weighing the interests of justice.
On behalf of Ms Ross it was submitted that Ms Ross’s evidence before the Chief Examiner was plainly not critical to the prosecution of [*the accused]. In fact, even without that evidence, she pointed out, the Chief Commissioner assessed the case against [*the accused] as being ‘strong’. Further, Ms Ross argued that the value of her evidence to the prosecution was subject to all sorts of vagaries and contingencies. For instance, Ms Ross may be discredited or her evidence otherwise not accepted. She argued that it is impossible to evaluate with any accuracy the importance and strength of the evidence she could give.
Evidence of the risks to the safety of Ms Ross
In her affidavit Detective [*redacted] canvassed the evidence of the risk to the safety of Ms Ross.
First, Detective [*redacted] summarised the evidence which led the Chief Examiner to make the restricted publication direction on [*redacted]. During the examination hearing Ms Ross gave evidence that [*the accused] holds a strong belief that one should not answer any questions or cooperate in any way with police. She also said that [*the accused] knows where her parents live, their address and their telephone number. Additionally, Ms Ross gave evidence of a number of occasions during the course of their relationship when [*the accused] had been violent toward her and threatened her life, including:
(a)[*redacted]
(b)[*redacted]
[*redacted]
In view of these matters, Detective [*redacted] stated she had a belief that [*the accused] ‘poses a genuine and serious risk to all prosecution witnesses against him’, despite the fact that he is currently incarcerated. However, she did not believe there was a threat or risk to a witness that is ‘current or specific’.
In addition, the prosecution summary alleges [*the accused] was visited in prison by a criminal associate. A conversation of the visit was recorded. In the conversation it appears that [*the accused] was not happy that the visitor had not taken care of something on his behalf relating to his pending court case, alleged to be an approach to a prosecution witness. According to the summary, “the accused is not happy that [visitor] entrusted another to do the job and failed to handle it himself as the ‘mistake’ … ‘could cost him ten years of his life’”.
Detective [*redacted] confirmed that the police witness security program was available to Ms Ross. Apparently, the program has been offered to Ms Ross on a number of occasions and many conversations have been held with her about it. On [*redacted] Ms Ross asked to be assessed for the program but the application did not proceed as, ultimately, she did not want to participate.
Further offers were made to Ms Ross to participate in the security program in March of this year but Ms Ross did not accept those offers. Nevertheless, Detective [*redacted] deposed that, as at 19 September 2014, the security program remains available to Ms Ross.
Finally, if Ms Ross is to give evidence at the trial of [*the accused], Detective [*redacted] stated that she will seek that Ms Ross give evidence from a remote witness facility because of the risk to her safety. Apparently, three other witnesses gave evidence from a remote witness facility during the committal proceedings for [*the accused] on the basis of similar concerns.
In her written submissions to the court, Ms Ross said there were six basic factual matters critical to the weight to be given to the risk that her safety would be jeopardised by the release of the material:
36.First, the evidence is sought to be used in the prosecution of a man who, evidence suggests, murdered a man because [*redacted].
37.Secondly, despite being incarcerated, the accused remains a “genuine and serious risk” to any witness giving evidence against him.
38.Thirdly, the witness has previously been assaulted and threatened with death by the accused.
39.Fourthly, the witness has given the accused the impression that she has refused to assist the prosecution against him.
40.Fifthly, the prosecution case – without the witness’s evidence – is described by the applicant’s counsel as “strong but not overwhelming”. This is not a case in which the prosecution must fail without the restricted evidence, or in which the restricted evidence is essential to the prosecution case.
41.Sixthly, though there is material before the court as to the nature of the restricted evidence, there is no material as to the attacks which might be made on the reliability or credibility of the witness. Thus, the court is not properly equipped to determine the true forensic value of the evidence.[58]
[58][*redacted].

The third point mentioned in those six factors relates to evidence given by Detective [*redacted] of correspondence sent from Ms Ross to [*the accused] in prison, lawfully intercepted by Corrections Victoria, in which she told [*the accused] that she needed a lawyer because she had refused to give any statement when interviewed (presumably by the police, although that was not made clear).

Analysis

As the parties have themselves agreed, there is a real basis for concluding that a risk exists to the safety of Ms Ross should the evidence she gave to the Chief Examiner be made available to [*the accused].

Further, it must be borne steadily in mind that:

(a) the evidence from Ms Ross has been obtained under compulsion;

(b) the Act mandates that a protection be afforded to her by a prohibition against the publication of her evidence to others where failure to do so would prejudice her safety; and

(c) [*the accused] is the very person whose threat to Ms Ross’s safety mandated the making of the direction.

But to recognise this potential unfairness is clearly not determinative of the issue at hand. That is so because the Act also provides, as it did when the examination occurred, a special procedure for making such evidence available to a person charged notwithstanding - in fact, expressly to overcome - a mandatory restricted publication direction made under those very kind of circumstances.

Jeopardy to the personal safety of Ms Ross does not automatically trump the public interest in the administration of justice; nor vice versa. Each circumstance must be judged on its own facts, and in the light of all the factors that might bear upon the interests of justice.

If it was in any way ambiguous before, s 1(a) now makes it clear that the use of the coercive powers, created by the Act, is both to investigate and prosecute organised crime offences. The evidence gathered by the Chief Examiner from Ms Ross suggests that the killing of [*the deceased] may well have been connected to one of the very organised crime offences for which the CPO was granted. In other words, her evidence falls directly within the intended scope of the compulsory examination procedure and the statutory justification for permitting it. It is not simply a peripheral outcome of it.

In my opinion, if the use of the extraordinary powers created by the Act results in evidence that would be valuable in the prosecution of an offence that bears a real relationship to an organised crime offence for which the CPO was granted, that is a relevant factor – to be considered amongst all other relevant factors - that tends toward permitting its release in the interests of justice. That is because Parliament has clearly signalled, by the very creation of such powers, the very high priority it accords to the investigation and prosecution of organised crime offences in the administration of justice in Victoria.

Next, I observe that the crime with which [*the accused] is charged is one of the most serious crimes a person can commit. The evidence of Ms Ross is not only very cogent, but is also the only source of the most critical of facts: first, an admission; secondly, a description given by [*the accused] of the way in which [*the deceased] was shot that seems only to be consistent with him being privy to that knowledge very soon after the event occurred.

It is true that the Crown case is said to be ‘strong’ without Ms Ross’s evidence. It is difficult to really gauge what is meant by ‘strong but not overwhelming’. I take that to mean that the case is less than ‘very strong’: an assessment with which I would tend to agree having read the depositions. To say that a case could succeed without Ms Ross’s evidence is not really to say very much. The fact that a prosecution has been commenced presupposes (or it should) that a judgment has been made that, on the available evidence, there is a reasonable prospect of a conviction.[59] So, the existence of a power to make evidence available for a prosecution that has already commenced contemplates, by definition, that the evidence is not critical in the sense that the prosecution can only succeed with it. In other words, s 43A does not, of necessity, import the same consideration that is the threshold for s 43B. If evidence gathered at a compulsory examination under the Act makes a marginal case strong, or a strong case very strong, then it has significant probative value.
[59]Eg, see: Director of Public Prosecutions Victoria, ‘Directors Policy – Prosecutorial Discretion’, 24 April 2014, p2. type="1">
In my view, Ms Ross’s evidence clearly has significant probative value in the prosecution of [*the accused]. I would say it has very significant probative value.

In weighing up the considerations in this matter, I confess that I am quite strongly influenced by the fact that the Crown case presently proceeds on an hypothesis that [*the accused]:

[*redacted].[60]

[60]Summary of Prosecution Opening filed 28 January 2014 [45].

If the evidence of Ms Ross is true – now supported in part by [*redacted]’s new statement – the Crown case might proceed on a false premise. Equally importantly, the foreshadowed severance argument might be predicated on a version of events that is either incomplete or false. I, as the trial judge, may potentially be privy to information that I know the defence lacks but the Crown knows about. But neither I nor the Crown is permitted to tell the defence. That is an invidious scenario, and strikes me as being inimical to the interests of justice. I cannot tell what weight [*the accused]’s defence might place on a greater prospect to sever charges on the indictment, which Ms Ross’s evidence might afford, compared to the prejudicial aspects of that evidence. That equation is made even more difficult to judge in view of [*redacted]’s new statement which at least places the possibility of a different motive ‘on the table’.

I certainly do not pretend that Ms Ross’s evidence is, on balance, more favourable to the defence. Nobody suggests that it is. But its potential evidentiary value to the defence, in the circumstances that have arisen, cannot be discounted.

Notwithstanding the gravity of the risk to which Ms Ross might be exposed should her evidence be made available to [*the accused], I do bear in mind that:

(a) he is currently in gaol and has limited means at his disposal to cause her, or any of her family, harm;

(b) should he be convicted, he is likely to be in gaol a long time;

(c) it will be apparent to him that Ms Ross’s evidence was given under compulsion (although, against that, she has apparently lied to him about not having made any statement);

(d) various measures exist to reduce the potential for Ms Ross to be harmed, as outlined by Detective [*redacted]; and

(e) despite his apparent threats and efforts, so far he has been unable to cause any harm to any of the prosecution witnesses.

In the result, the degree of risk that [*the accused] poses to Ms Ross’s safety is a matter of speculation and not a matter of any certainty. And, while it might also be said that there is no guarantee that Ms Ross’s evidence will ultimately be accepted or be probative of the crimes with which [*the accused] has been charged, doing the best I can I consider there is a higher degree of likelihood attending that prospect than the prospect that she will actually come to harm as a result of the disclosure of her evidence. But there are no guarantees about anything.

It goes without saying that this question involves a very difficult, vexing exercise. But, weighing everything up, including in particular

(a) the very high value Ms Ross’s evidence has for the prosecution of this most serious crime; and

(b) the potential injustice that might arise from [*the accused] being deprived of significant evidence that contradicts an aspect of the Crown case, especially in relation to the basis of having all charges heard together;

when measured against

(c) the risk to Ms Ross’s safety which may, in fact, be constrained in the circumstances and by various methods available,

I am satisfied that the interests of justice require that I make an order that the evidence be made available to [*the accused], through his legal representation, and the DPP.

I wish to record that in noting that measures exist to reduce the potential to be harmed, I do not overlook the very great sacrifice that a person would need to make to enter the witness security program. I do not suggest it is unreasonable on Ms Ross’s part to decline to enter it, although in so saying I should not be taken as expressing any view as to whether she should participate in the program.

Conclusion

I intend to order, pursuant to s 43A(5) of the Act, that the evidence given by Ms Ross to the Chief Examiner on 11 and 17 July 2013 be made available to [*the accused], the legal practitioners representing him on indictment no. [*redacted], and to the Director of Public Prosecutions.

The transcript of Ms Ross’s evidence that the Chief Commissioner sought to be made available was a redacted version. At the hearing before me on 26 September last, little was said in submissions about the suitability or otherwise of those redactions. It may be that the question of the ultimate form of the redactions needs to be revisited. If necessary, I will hear from the parties further as to the appropriate form of the transcript to be made available.

[2014] VSC 679

2 October 2014