James v Office of the Chief Examiner & the DPP

[2006] VSC 384

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9201 of 2006

BRENT JAMES	Plaintiff
v
THE OFFICE OF THE CHIEF EXAMINER	First Defendant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS	Second Defendant

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JUDGE:	Morris  J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2006
DATE OF JUDGMENT:	5 October 2006
CASE MAY BE CITED AS:	James v DPP
MEDIUM NEUTRAL CITATION:	[2006] VSC 384

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Chief Examiner under the Major Crimes (Investigative Powers) Act 2004 – Direction that evidence given to Chief Examiner not be published or communicated if safety or reputation of person prejudiced – Rescission of earlier direction not to publish or communicate evidence – Evidence the subject of earlier direction made available for committal hearing – Section 43 Major Crimes (Investigative Powers) Act 2004

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Monagle for the Plaintiff	Prisoners Advocate Legal Service Ltd
For the Defendant	Mr C.J. Ryan of counsel for the Second Defendant	Office of Public Prosecutions

HIS HONOUR:[1]

[1]These reasons were given orally at the hearing and subsequently revised.

1. Application has been made to the court on behalf of Brent Peter James that a decision by the Chief Examiner appointed under the Major Crime (Investigative Powers) Act 2004 be set aside. The decision sought to be set aside was a decision to rescind an earlier direction the Chief Examiner had given under s.43 of the Act, to the effect that evidence given by Mr James not be published or communicated.

1. On 11 and 12 January 2006, Mr James was examined by the Chief Examiner.  This examination was consequent upon an order by Cummins J on 28 November 2005 that instigated exclusive powers available under the Act.  On 11 January 2006, in the course of his examination, the Chief Examiner considered the provisions of s.43 of the Act.

1. Section 43 provides:

“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 sub-section (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 sub-section (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 sub-section 1(a), 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 require) must make the evidence available to the court.

(5)If -

(a)the Chief Examiner or the Chief Commissioner makes evidence available to a court in accordance with sub-section (4); and

(b)the court, after examining the evidence, 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 sub-section (1) that would restrict the exercise of powers or the performance of duties by the Special Investigations Monitor under this Act or affect a person’s right under this Act to complain to the Special Investigations Monitor.”

1. The Chief Examiner initially formed the view that if he did not make a direction under sub-s.(1) of s.43, this might prejudice the safety or reputation of Mr James or it might prejudice the fair trial of persons who had been or were to be charged with serious offences.

1. On 4 October 2006, the Chief Examiner rescinded his earlier direction that the evidence of Mr James must not be published or communicated.  This occurred in the following circumstances.  Mr Rich and others were about to face a committal hearing before a magistrate in relation to serious charges.  About 100 witnesses were proposed to be called at the committal.  One of these witnesses was to be Mr James.  A witness statement which embodied evidence that Mr James might give at the committal had been provided to the defendants in that committal hearing.  Further, I am told, a tape recording of a conversation Mr James had with police was also provided to the defendants.  The prosecutor in the criminal matter formed the view that, as part of his duties as a prosecutor, he should also make available to the defence a copy of the transcript of evidence given by Mr James before the Chief Examiner.  The prosecutor took this view because that evidence was relevant to the evidence Mr James might give at the committal and was potentially relevant as to the credit of Mr James.  Because the prosecutor took this view, the Director asked the Chief Examiner to rescind the direction he had previously given under s.43.

1. The committal hearing is to be mentioned tomorrow and is likely to start next week.  It is booked in for some eight to ten weeks.  Mr James is concerned that the effect of the rescission of the direction under s.43 of the Act will be to enable his evidence before the Chief Examiner to be published; and that this will be to imperil his safety.

1. Mr James submits that the Chief Examiner did not have power to rescind a direction once that direction had been given pursuant to s.43(1) of the Act. I do not accept this submission. Generally, when powers are given to persons pursuant to statute the Parliament intends that the person who is given the power to make a direction also has the power to rescind such a direction. That general proposition is confirmed by s.41A of the Interpretation of Legislation Act 1984. It may be that the Chief Examiner gives a direction because the failure to do so might prejudice the safety of a person or a person's reputation. Then, shortly after making the direction, he becomes aware of new facts - or, for that matter, circumstances change - which make it appropriate that the direction be rescinded.

1. I would add that, once a direction is made, I would regard the legislation as permitting the Chief Examiner to vary the direction.  In making this comment, I note that the final words in s.43(1) of the Act enable the direction to contain exceptions, either as to the manner of publication or communication or as to the persons to whom evidence might be published or communicated.

1. The second submission which was advanced on behalf of Mr James was his primary submission.  It was to the effect that the scheme of s.43 is that if a direction is made that evidence must not be published or communicated then the only method for departing from that direction is that set out in sub-ss.(4) and (5) of the section.  That is, if a direction is made, it was said the only method of departing from that direction was to persuade a court that it may be desirable in the interests of justice that the evidence be made available and then, when that evidence is made available, that the court is persuaded that it is in the interests of justice to make that evidence available to a defendant.  In other words, the court would, first, make a decision as to whether to call for the evidence and, second, make a decision as to whether to make the evidence available to a defendant.

1. Such a course could be pursued in relation to the criminal charges that are about to be the subject of the committal hearing.  Indeed, Mr Ryan SC, who is to prosecute those criminal charges and who appeared before me today, indicated that this would be an option available to him.  However, the fact that he has indicated that it is an option does not determine the matter.  Before I can provide any relief under s.56, I must be satisfied that the decision of the Chief Examiner is – or, at least, may be - legally erroneous.  Hence, it is necessary for me to directly deal with the submission made as to the scheme of the section.

1. 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.

1. Having regard to the limited function of sub-ss.(4) and (5), it would be a surprising outcome if this was the sole method by which a Chief Examiner’s direction, once made, might be avoided.  Rather, I think it is just one method of avoiding such a direction; and it ought not be regarded as a method that excludes the rescission of the direction.

1. For these reasons, I cannot accept that there is a basis for the relief that is sought and I refuse that relief.

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