Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner
[2014] VSCA 254
•17 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| Redacted |
S APCI 2014 0125
| JEAN ROSS (A Pseudonym) | Appellant |
| v | |
| THE CHIEF COMMISSIONER OF POLICE and THE CHIEF EXAMINER | First Respondent Second Respondent |
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| JUDGES: | WARREN CJ, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2014 |
| DATE OF JUDGMENT: | 17 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 254 |
| RULING APPEALED FROM: | [*redacted] |
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[Redacted version]
APPEAL — 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 — Whether appeal to Court of Appeal from decision of judge in Trial Division incompetent by reason of s 17A(3) of the Supreme Court Act 1986 — Whether leave to appeal required — Whether denial of procedural fairness.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Carr | Victoria Legal Aid |
| For the First Respondent | Mr O P Holdenson QC with Mr A Imrie | Victorian Government Solicitors’ Office |
| For the Second Respondent | Mr P J Hanks QC with Mr J M Forsaith | Office of the Chief Examiner |
| For the Director of Public Prosecutions | Mr M J Rochford QC with Ms J B Warren | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ
WHELAN JA
PRIEST JA:
Introduction
Witness EN379, to whom the Court has given the pseudonym ‘Jean Ross’, gave evidence before the Chief Examiner — who was exercising powers under the Major Crime (Investigative Powers) Act 2004 (‘the Act’) — on [*redacted]. Her evidence implicates [*redacted], in the murder of [*redacted] on [*redacted], and [*redacted] other serious offences involving another victim on [*redacted].
Pursuant to s 43(1) of the Act, the Chief Examiner made a direction restricting publication of her evidence on the grounds that failure to do so might prejudice her safety.
On 4 September 2014, on application by the Chief Commissioner of Police (‘Chief Commissioner’), Lasry J gave a certificate under s 43A(1) of the Act. As a result, on 2 October 2014, Macaulay J — having entertained submissions from the Chief Commissioner, the Chief Examiner and Ms Ross — ordered pursuant to s 43A(5) that the evidence given by Ms Ross be made available to [*redacted], the legal practitioners representing him and to the Director of Public Prosecutions (‘the Director’).[1]
[1][*redacted] (‘Reasons’).
Ms Ross now seeks to challenge the order made by Macaulay J on four principal bases. First, it is claimed that the application was misconceived, since, on its proper construction, s 43A did not authorise the release of evidence except where it was necessary for the accused to have access to that evidence in order to defend himself or herself. Secondly, it is submitted that, if the application was not misconceived, it nevertheless should not have succeeded, because the interests of justice favoured non-release. Thirdly, it was contended that in determining whether it was in the interests of justice to release the evidence, the judge should have taken into account the undesirability of deterring future witnesses from giving evidence before the Chief Examiner, and that consideration outweighed the desirability of the evidence being made available for use in the trial. Fourthly, it was contended that the decision is flawed, since it was infected by a want of procedural fairness.
Counsel for the Chief Commissioner submitted that the appeal is incompetent by virtue of s 17A(3) of the Supreme Court Act 1986. If the appeal is not incompetent, the Chief Commissioner submitted that leave to appeal is required, but agreed that it was undesirable to focus on the leave question as opposed to the substantive merits of the appeal.
[*redacted]
For the reasons that follow, we would not uphold the Chief Commissioner’s challenge to competency. Insofar as it may be necessary, we would grant leave to appeal. We would, in any event, dismiss the appeal.
Factual background
It is necessary to set out the basic factual background.
Jean Ross — whom, for convenience, we shall refer to as the appellant — was [*redacted].
On 15 April 2013, King J made a coercive powers order (‘CPO’) under the Act concerning two organised crime offences, one of which was the attempted murder of [*redacted] on [*redacted]. T Forrest J extended the CPO for a further 12 months on 10 April 2014.
The appellant was served with a summons on 28 June 2013, requiring her to attend the office of the Chief Examiner to give evidence pursuant to the CPO. She gave evidence [*redacted]. Having initially declined to do so, after the completion of the appellant’ evidence, and in light of further information provided, the Chief Examiner made a direction under s 43(1) of the Act restricting the publication of the evidence given by Ms Ross at the examination. He did so on the basis that, if he failed to do so, the appellant’s safety might be prejudiced. The direction was as follows:
Pursuant to s 43(1) of the Major Crime (Investigative Powers) Act 2004 (the Act), in relation to the examination of [Jean Ross] (the witness), I direct that:
(a)any evidence given before me; or
(b)the contents of any document, or a description of any thing, 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 [Jean 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:
(a)a video recording of the examination hearing in full or in part;
(b)an audio recording of the examination hearing in full or in part;
(c)a written transcript of the examination hearing in full or in part; and/or
(d)any summary of the evidence given at the examination hearing.
I am satisfied that a direction must be made at this time pursuant to the requirements of s 43(2) of the Act because a failure to do so might prejudice the safety of the witness [Jean Ross].
By an ex parte application dated 4 September 2014, the Chief Commissioner applied for a certificate under s 43A(1). Lasry J granted the application the same day. Although we will later discuss the applicable legislative regime in greater detail, it is enough for present purposes to observe that a certificate may be given under s 43A if the court considers it may be desirable in the interests of justice that ‘restricted evidence’ (as defined) be made available to a person charged with an offence or to a legal practitioner representing that person. When a certificate under s 43A(1) is granted, s 43A(2) requires that the restricted evidence must be made available to the court. Subsections 43A(3) and (4) require the court to give the Chief Examiner, the Chief Commissioner and — if the direction under s 43A(1) ‘involves the interest of a witness’ — 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 or a legal practitioner representing the person charged’.
On 26 September 2014, Macaulay J received the submissions contemplated by sub-ss 43A(3) and (4) from the Chief Commissioner, Chief Examiner and the appellant. Pursuant to s 43A(5) of the Act, on 2 October 2014 his Honour ordered that a redacted transcript of the evidence given by the appellant [*redacted] be made available to a named solicitor and a barrister, ‘each being the legal practitioners representing [*redacted], and to the Director. His Honour also made an order directing the manner and mode of delivery of the transcript; and he stayed the operation of the orders until 3 pm on Monday 6 October 2014.
Procedural history and grounds of appeal
By a Summons dated 6 October 2014, the appellant sought orders that ‘leave be granted to hear an appeal against the said decision to release the restricted evidence of [Jean Ross]’, and that the order of Macaulay J releasing the restricted evidence ‘be stayed until an appeal can be heard in the matter’. The Summons was supported by affidavits, one of which exhibited a proposed Notice of Appeal.
The Summons came on for hearing before Whelan and Coghlan JJA who, on 6 October 2014, ordered that the orders of Macaulay J be stayed until further order.
There were three grounds in the Notice of Appeal, and leave was sought to add a fourth. No opposition to the addition of the ground was advanced either by counsel for the Chief Commissioner or the Chief Examiner. We would thus grant leave to add ground 4, so that the grounds are:
1.The learned trial judge erred in holding that, on its proper construction, s 43A of the Major Crimes (Investigative Powers) Act 2004 (the Act) permitted the release of restricted evidence to a person already charged for the purpose of assisting the prosecution of that person.
2.The learned trial judge erred in holding that, in the particular circumstances of this case, it was in the interests of justice to release the restricted evidence to the accused [*redacted].
3.The learned trial judge erred in not considering, in determining whether it was in the interests of justice to release the restricted evidence to the accused [*redacted], whether doing so would compromise the purposes of the Act by making future witnesses less likely to answer questions at their examination under the Act.
4.The learned trial judge erred in failing to accord procedural fairness, in that the learned trial judge took into account evidence which was of importance and had not been disclosed to the parties.
The appeal (and, if necessary, the antecedent application for leave to appeal) came before the Court as presently constituted on 10 October 2014. Detailed written and oral submissions were received from the parties. Further, counsel for the Director sought to make limited submissions to the Court concerning the implications of the restricted evidence for the pending trial. We were informed by counsel that, pursuant to s 67 of the Act, the Chief Commissioner had provided the restricted evidence to the Director. Since we were of the view that the Director had an interest in the use of the restricted evidence at the forthcoming trial, we resolved to entertain limited oral submissions from counsel on his behalf.
Is the appeal competent?
Counsel for the Chief Commissioner submitted that the purported appeal is incompetent. That submission should not be upheld. Further, counsel for the Chief Commissioner submitted that, if the appeal is competent, then leave to appeal is required. We do not accept that submission either. (As we understand the position, however, the Chief Commissioner conceded that, if the appeal is competent and leave is required, the substantive issues in the case ought be considered as if leave had been granted.)
Returning to the submitted incompetence of the appeal, counsel for the Chief Commissioner argued that s 17A(3) of the Supreme Court Act 1986 rendered incompetent any appeal from the primary judge’s decision. They submitted that the purpose of s 17A(3) is to prevent the fragmentation of criminal trials, which reflects a curial disinclination to interfere with or interrupt criminal trials. Although counsel conceded that there must be a direct nexus with the trial itself before s 17A(3) can have operation, they submitted that such a nexus existed in this case.
The appellant’s counsel submitted, however, that the impugned orders do not fall within s 17A(3) because they do not affect the conduct of [*redacted]’s trial; do not raise an issue between the prosecution and the accused; and do not affect any integral part of the trial process. Hence, the required nexus between the orders and the trial that was necessary before s 17A(3) could come into play, did not exist. It was contended that the decision of the primary judge has only an indirect effect on the trial, in that it reveals certain evidence to the parties to the trial, neither of whom were parties to the impugned decision. Since the decision was not one on, or in relation to, the conduct of [*redacted]’s trial, s 17A(3) presents no bar to the appeal.
The Chief Commissioner’s submissions should be rejected, since, in our opinion, the impugned ‘determination’ was not ‘made on or in relation to the trial or proposed trial of [*redacted] on indictment’.
By virtue of s 17(2) of the Supreme Court Act 1986, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court, unless it (or any other Act) otherwise expressly provides.
Section 17A places restrictions on appeals to this Court. In particular, s 17A(3) provides:
(3) Except as provided in Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009, an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment.
Further, s 17A(4)(b) makes plain that, absent a grant of leave, an appeal does not lie to the Court of Appeal ‘from a judgment or order in an interlocutory application’ made by a judge of the Trial Division.
It might be accepted that s 17A(3) is designed to avoid fragmentation of the processes of a criminal trial. The High Court made so much clear in Smith,[2] when dealing with the provisions s 14(3) of the Supreme Court Act 1986 (re-enacted with some modifications in the present in s 17A(3) of the Act). It was held that the provisions of the subsection were a bar to an appeal by the Crown against an order permanently staying a prosecution against various police officers charged with murder and related offences, the Court (Mason CJ, Dawson, Gaudron and McHugh JJ) observing that it ‘was intended to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial’.[3]
[2]Smith v The Queen (1994) 181 CLR 338 (‘Smith’).
[3]Ibid 346.
Section 17A(3) principally differs from its forerunner — dealt with by the High Court in Smith — in that it exempts from its operation different species of appeal under Part 6.4 of the Criminal Procedure Act 2009. Part 6.4 not only gives a right of appeal against conviction to a person convicted on indictment, and against sentence to the convicted person and the Director (such appeals formerly being governed by the provisions of Part VI of the Crimes Act 1958), but in Division 4 it provides that, in certain prescribed circumstances, the parties to a proceeding for the prosecution of an indictable offence may, by leave of the Court of Appeal, appeal from an interlocutory decision made in the proceeding.
In Mokbel, Whelan AJA echoed the notion that ‘the restriction in s 17A(3) reflects a strong disinclination to interfere with or interrupt criminal trials and is designed to protect criminal trials from fragmentation’.[4] The consequences were that the prosecution could not, for practical purposes, appeal adverse determinations other than those relating to sentence, and the accused could only appeal an adverse determination once convicted. Now, however, as has already been noted, s 17A(3) exempts from its purview interlocutory appeals under Part 6.4 of the Criminal Procedure Act 2009. Thus, although ‘the legislative purpose expounded in Smith remains pertinent to the limiting of appeals contained in s 17A(3)’,[5] it ‘has been diluted by a broadening of the exception in s 17A(3) of the Act’.[6]
[4]Herald & Weekly Times v Mokbel (2006) 161 A Crim R 238, 244 [36].
[5]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 258 [32] (Warren CJ and Byrne AJA).
[6]Ibid 257 [30].
Unarguably, the determination from which it is sought to appeal is not one made ‘on’ [*redacted]’s trial or proposed trial. The more difficult question is whether it is one made ‘in relation to the trial or proposed trial’.
In A,[7] the Court was required to determine whether this Court had jurisdiction to entertain an appeal against a suppression order concerning a pending trial. Maxwell P and Nettle JA took the view — with respect, one that we find persuasive — that the phrase ‘in relation to’ is intended to denote a quite direct nexus with the trial or proposed trial on indictment. They said:[8]
Interpreting a statutory phrase by reference to its context is necessary so that effect can be given to the legislative purpose.[9] And it is the legislative purpose of s 17A(3) which is significant here. Its purpose, as the High Court recognised in Smith,[10] was to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial.
This suggests that the phrase ‘in relation to’ was intended to denote a quite direct nexus with the trial. Nothing said by the High Court in Smith requires any other conclusion. We think, moreover, that a privative clause like s 17A(3) should be strictly construed and that where — as here — there is a choice between a broader and narrower interpretation, the narrower should be preferred. This is especially so where — as here — the application of the privative clause would render the determination in question wholly immune from appeal. It is not lightly to be assumed that Parliament would have intended that result.
[7]Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299.
[8]Ibid 304 [17]–[18].
[9]cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].
[10](1994) 181 CLR 338 at 346.
In our opinion, the decision from which it is sought to appeal does not have sufficient nexus to the trial to be caught by s 17A(3). It does not concern any determination of law or procedure that arises, or that it is anticipated will arise, in the trial. It does not relate to any direction made for the efficient conduct of the proceeding (such as the filing of documents, the making of admissions or alternative means of giving evidence, or the like). It does not directly concern the filing, or form, of the prosecution opening or the defence response. It does not concern the pleading of the indictment or any request for further and better particulars. It does not concern any application to stay the trial.[11]
[11]See Herald & Weekly Times v A (2005) 160 A Crim R 299, 303 [15]; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 255–6 [21].
Although the primary judge’s decision is indirectly concerned with the conduct of [*redacted]’s trial, and with the parties to the criminal proceeding — in the sense that the Director may have an interest in being able to use the restricted evidence (if made available) in the trial of [*redacted] (presumably to [*redacted]’s detriment) — one of the persons whose interests are at stake if the evidence is made available (that is, the witness who gave the restricted evidence) is not a party to the criminal proceeding, where issue is joined only between the Director and [*redacted]. This lends emphatic support to the view that the impugned decision was not one made in relation to [*redacted]’s trial.
Further support for that view may be derived from the fact that, when making the direction restricting the appellant’s evidence, the Chief Examiner recognised that failure to do so might prejudice her safety. Thus the direction made by the Chief Examiner was made for her benefit unconnected with [*redacted]’s pending trial; and it is the appellant, given the potential prejudice to her safety, who has an interest in preserving the status quo. Indeed, no party in argument before this Court sought to contend that, when seeking to be ‘satisfied whether the interests of justice so require’, the court should ignore the interest of the witness who gave the evidence in avoiding prejudice to her safety.
Moreover, were the Chief Commissioner’s argument to be upheld, a determination under s 43A would be immune from appeal. Absent a clear and unequivocal statutory command, we would not be prepared to infer that a person in the position of the appellant was to be deprived of a remedy by way of appeal in relation to an order which might have the practical effect of prejudicing her safety. In our view, the terms of s 17A(3) are not sufficient to oust the putative appeal to this Court.
As to the issue whether leave to appeal is required, in our view it is not. In our opinion, the impugned decision is not interlocutory, in the sense that it finally determines the appellant’s right to retain the benefit of the order under s 43 of the Act. Once the restricted evidence is made available under s 43A, the appellant will irredeemably lose the benefit of the direction under s 43 which was made to avoid prejudice to her safety.
If we are wrong, however, and the appellant must obtain leave to appeal, we would grant such leave. As will become clear, aspects of the original decision are attended by sufficient doubt to warrant leave, and it is arguable that a substantial injustice might be permitted to stand if the original decision is left unreversed.[12] Further, and importantly, as we have said, the Chief Commissioner conceded that, if the appeal is competent and leave is required, the substantive issues in the case ought be considered as if leave had been granted.
[12]Niemann v Electronic Industries Limited [1978] VR 431; Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335; X v Director of Public Prosecutions [1995] 2 VR 622, 626.
The challenge to competency should fail. Insofar as leave to appeal may be required, we would grant such leave.
Ground 1: Does s 43A of the Act permit release of restricted evidence to a person already charged so as to assist the prosecution?
Counsel for the appellant submitted that the proper interpretation of s 43A is that an application may only be made, and granted, for the purposes of making evidence available to an accused person. The power reposing in s 43A cannot be exercised for the purpose of making evidence available to assist anyone else, including the Director in relation to a pending trial against an accused person. Section 43A, it was submitted, is concerned with — and limited to — the release of restricted evidence to a person charged with an offence.[13] By way of contrast, s 43B is solely concerned with the release of evidence to the Director of Public Prosecutions ‘for the purpose of prosecuting a person for an offence’. There was no power under s 43A to release the restricted evidence of the appellant to the Director. Counsel conceded, however, that — despite the heading to s 43B — an application could still be made under that section, notwithstanding that there was no power to do so under s 43A.
[13]Although it was accepted that, once evidence is released under s 43A to a person charged with an offence, s 43A(5) also requires that it be made available to the Director of Public Prosecutions.
In attractive oral submissions, counsel for the appellant emphasised that the ‘interests of justice’ requirement in s 43A is directed to release of restricted evidence to the person charged, not the Director. It is only if the interests of justice require that restricted evidence be made available to the person charged that it must also be made available to the Director. If the Director wishes to have restricted evidence available to him, he must make application under s 43B of the Act, not s 43A. Counsel argued that there is a ‘dichotomy’ between s 43A and s 43B. Despite the heading to s 43B, it is the exclusive mechanism by which the Director may apply to have restricted evidence made available, both before and after a person is charged. Although the heading to s 43B — ‘Release of restricted evidence where person not yet charged’ — might suggest that the section is limited in its operation to a time before a person is charged, counsel submitted that the heading of the section cannot support a construction that the words of s 43B will not reasonably bear. Acknowledging that the Second Reading speech pertinent to the introduction of s 43A and s 43B did not support the construction that he urged, counsel for the appellant submitted that the Second Reading speech could not ‘supplant’ the otherwise clear words of the sections. Finally, counsel submitted that a ‘wholly coherent scheme’ results from the construction that he pressed.
Counsel for the Chief Examiner — whose arguments the Chief Commissioner adopted — submitted that the primary judge’s approach to the interpretation of s 43, s 43A and s 43B was flawless, and that the judge had correctly summarised the effect of recent amendments to the Act, which had resulted in the introduction of s 43A and s 43B, and in substantial changes to s 43. Counsel submitted that Macaulay J began by noting that the Act had recently been amended;[14] then examined the statutory scheme prior to the amending Act;[15] next analysed the impact of the amending Act’;[16] then considered the arguments of the appellant as to why the new s 43A only allows restricted evidence to be provided to an accused person in aid of his or her defence,[17] and rejected those arguments;[18] and, finally, concluded that one of the purposes of the new s 43A was ‘to enable the Chief Commissioner to apply to have evidence made available to the DPP to aid a prosecution that has already been instigated’.[19] The primary judge had, it was submitted, recognised the contextual importance of the statutory scheme as it existed prior to the amending Act — as identified in Mary Brown[20] — and its importance in construing the present scheme.
[14]Reasons, [13].
[15]Reasons, [14]-[47].
[16]Reasons, [48]-[59].
[17]Reasons, [60]-[65].
[18]Reasons, [66]-[73].
[19]Reasons, [74].
[20]The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167 [36]-[49] (‘Mary Brown’).
In order to understand the competing contentions, it is necessary that we set out the key provisions of the Act in some detail.
The purposes of the Act are set out in s 1, which is in the following terms:[21]
[21]Emphasis added.
Purposes
The purposes of this Act are —
(a) to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b) to combat and reduce the incidence of organised crime offences.
Section 3 defines restricted evidence as being ‘any evidence, information or thing that is the subject of a direction that is in force under section 43(1)’.
As we have said, the appellant gave evidence before the Chief Examiner on [*redacted], which became restricted evidence by virtue of a direction made by the Chief Examiner.[22] Subsections 43(1) and (2)[23] of the Act relevantly provide:[24]
[22]See [11] above.
[23]For present purposes it is unnecessary to set out sub-ss (2A), (3), (4) and (6).
[24]Emphasis added.
43Restriction 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.
Before turning to the provisions of s 43A and s 43B, it should be noted that, pursuant to s 67 of the Act, the Chief Commissioner may give to any agency or body (of the State, the Commonwealth, or another State or a Territory) prescribed by regulations ‘any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that is relevant to the activities of that agency or body’ if it appears to the Chief Commissioner ‘to be appropriate to do so’, and ‘to do so would not be contrary to a law (of the State, the Commonwealth or that other State or that Territory) that would otherwise apply’. By virtue of reg 14(a) of the Major Crime (Investigative Powers) Regulations 2005,[25] the Director is a prescribed agency or body for the purposes of s 67 of the Act. Importantly, however, s 67 only provides a mechanism for the Chief Commissioner to share information with the Director. It does not authorise the Director to make evidentiary use of the information, or the evidence upon which it is based, in a proceeding. If the Director is to be permitted to use the information, or the evidence upon which it is based, for such a purpose, his authority to do so must derive from another source.
[25]As amended by the Major Crime (Investigative Powers) Amendment Regulations 2014, reg 4.
We should also note in a little more detail various amendments recently made to the Act by the Criminal Organisations Control and Other Acts Amendment Act 2014 (‘the amending Act’). In particular, with effect from 27 August 2014, s 43 was substantially amended, and s 43A and s 43B were introduced. The amendments followed, and were apparently responsive to, the views that this Court expressed in Mary Brown. Macaulay J summarised the state of the law immediately following Mary Brown as follows:[26]
[26]Reasons, [46].
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.
Macaulay J also summarised the more significant features of the amending Act:[27]
[27]Reasons, [48] (footnotes omitted).
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;
(b)introduced a new defined term, ‘restricted evidence’, being evidence that is the subject of a restricted publication direction made under s 43(1);
(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;
(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; 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).
Turning to the provisions of s 43A and s 43B, the appellant submitted, as we have said, that s 43A only permits restricted evidence to be made available for the purposes of an accused person. Subsections 43A(1) and (2) provide:[28]
[28]Emphasis added.
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.
The effect of s 43A(1) is that the Chief Commissioner, the Director or a person ‘charged with an offence before the court’, may make application that restricted evidence be ‘made available’ to the person charged; and the court may give the Chief Examiner or Chief Commissioner a certificate that the restricted evidence be made available if it is ‘desirable in the interests of justice’. Thus, it will be noticed that although any one of the three persons named in the section might make application for restricted evidence to be made available, s 43A(1) permits a certificate to be given only to the Chief Examiner or Chief Commissioner, presumably in recognition that the restricted evidence will be in the possession of either or both. Moreover, the section makes clear that it may only be invoked once a person has been ‘charged with an offence before the court’, since one of the three persons who may make application is the person so charged. The only condition governing the grant of a certificate which permits the evidence to be made available is that it is desirable in the interests of justice. Once the court grants a certificate, by reason of s 43A(2) the Chief Examiner or Chief Commissioner have no option, but ‘must make the restricted evidence available to the court’ (that is, not the Director or the ‘person charged with an offence before the court’).
The succeeding subsections of s 43A, sub-ss 43A(3), (4) and (5), provide:[29]
[29]Emphasis added.
(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.
Subsections 43A(3), (4) and (5) make plain that, once restricted evidence is made available to the court pursuant to the certificate granted under s 43A(1), the court must give each of three persons an ‘opportunity to make submissions to the court’. The three persons are the Chief Examiner and Chief Commissioner, and, where a direction has been given under s 43(1) — that is, the witness (‘person’) whose ‘safety’ the Chief Examiner was satisfied might reasonably be expected to be prejudiced — the person who provided the evidence. The court must then examine the restricted evidence and consider the submissions made by the Chief Examiner, the Chief Commissioner and the witness whose evidence is restricted because of prejudice to his or her safety. It is only after ‘examining the restricted evidence and considering any submissions’ that the court may make the restricted evidence available to the person charged[30] and the Director. And the court may only make the restricted evidence so available if ‘satisfied that the interests of justice so require’.
[30]When sub-ss 43A(3) and (5), and 43B(7), speak of making restricted evidence available to a person charged, they include ‘a legal practitioner representing a person charged’. For the sake of convenience, when we refer to restricted evidence being made available to a person charged, it should be understood that a legal practitioner representing a person charged is also notionally included.
Notably, neither the person charged nor the Director is permitted to make a submission under s 43A(3). Two things might be said of this. First, although the Director might be aware of the evidence under s 67, the person charged would ordinarily not lawfully be aware of the restricted evidence until it was ‘made available’. That provides a sound reason why s 43A(3) does not contemplate submissions being received from the person charged. Secondly, after submissions are received as to whether the restricted evidence should be made available to the person charged (the Director having no right to be heard on that matter), once the court determines that the restricted evidence will be made available, it may be made available to both the person charged and to the Director.
The provisions of s 43B may be contrasted. They provide:[31]
[31]Emphasis added.
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.
The first thing to notice about s 43B is the heading, which suggests that the section is concerned with the release of restricted evidence where a person is not yet charged. It was submitted by the Chief Examiner that the heading points very strongly to the notion that s 43B is concerned solely with the situation where a person has not been charged, whereas s 43A is concerned to regulate the release of restricted evidence after a person has been charged. The appellant submitted, however, that the heading of the section could not give a meaning to the text of the section which the text could not reasonably bear. We will later return to these competing arguments.
By virtue of s 43B(2), the Supreme Court or the County Court may direct the Chief Examiner or the Chief Commissioner to make the restricted evidence available to that court. The court may only do so, however, on application by the Chief Commissioner. The Chief Commissioner makes the application so that the restricted evidence may be made available to the Director. The Chief Commissioner may only make the application if he ‘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’. There is a single purpose for which the Chief Commissioner may apply to make restricted evidence available — ‘for the purpose of prosecuting a person for an offence’.
Once the restricted evidence is made available to the court in response to an application under s 43B(1), each of four persons must be given 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 ‘for the purpose of prosecuting a person for an offence’. The four persons are the Chief Examiner, the Chief Commissioner, the Director and, if the direction making the evidence restricted evidence ‘involves the interests of a witness’, the witness. Following the receipt of submissions from the four nominated persons, the court may make the evidence available to the Director, but only for the purpose of prosecuting a person for an offence; and only if satisfied that there are reasonable grounds for the Chief Commissioner’s suspicion founding the application (that is, he suspects on reasonable grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made available), and ‘the interests of justice require’ the evidence to be made available.
If restricted evidence is made available to the Director ‘under this section’, and a person is subsequently ‘charged with an offence as a result’, sub-s (7) permits the Director to make the evidence available to the person charged.
At the risk of some necessary repetition, the main points of similarity and distinction between the provisions of s 43A and s 43B may be identified:
· First, s 43A permits three persons to make application — the Chief Commissioner, the Director or the person charged with an offence. Section 43B permits only one person to make application — the Chief Commissioner.
· Secondly, under s 43A the application is for a certificate directed to the Chief Examiner or the Chief Commissioner 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. By contrast, under s 43B no certificate is necessary. The application to the court is for an order that restricted evidence be made available to the Director for the purpose of prosecuting a person for an offence.
· Thirdly, under s 43A, once the restricted evidence is made available to the court, the court may — having examined the restricted evidence and considered relevant submissions — make it available if satisfied that the interests of justice so require. Section 43B also permits the court to make the restricted evidence available if ‘the interests of justice … require’, but has the additional requirement that the court must be satisfied that there are reasonable grounds for the Chief Commissioner’s suspicion as described in sub-s (1) of s 43B.
· Fourthly, none of the three persons who may make application under s 43A need have any particular state of mind; whereas under s 43B, the only person who may make application — the Chief Commissioner — must suspect on reasonable grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made available.
· Fifthly, the persons to whom the court may make the restricted evidence available differ. Under s 43A the court may make the restricted evidence available both to the person charged and to the Director; whereas s 43B permits the court to make the evidence available only to the Director (although the Director may then make the evidence available to any person ‘subsequently charged with an offence as a result’ of the evidence being made available).
· Sixthly, the persons who may make submissions before evidence is made available by the court, and the subject-matter to which such submissions are directed, differ between the two sections. Section 43A requires the court to receive submissions from three persons — the Chief Examiner, the Chief Commissioner and the witness (if the evidence ‘involves’ his or her ‘interests’). By s 43B the Director may also make submissions, so that the court must receive submissions from four persons — the Chief Examiner, the Chief Commissioner, the Director and the witness (if the evidence ‘involves’ his or her ‘interests’). Under s 43A the permitted submissions must relate to whether or not the evidence should be made available to the person charged. The purpose for which the evidence might be made available, however, is not specified. By way of contrast, s 43B requires the submissions to relate to whether the evidence should be made available to the Director ‘for the purpose of prosecuting a person for an offence’.
· Seventhly, although both sections contemplate restricted evidence being made available to nominated persons, only s 43B contemplates that restricted evidence made available to a nominated person — the Director — may be made available to another. Thus where the Director has had restricted evidence made available to him, s 43B(7) specifically permits the Director to make that restricted evidence available to a person, where that person is subsequently charged with an offence as a result of the evidence having been made available to the Director.
As we have said, the appellant argued that, properly construed, s 43A only provides a mechanism for making restricted evidence available for the purpose of permitting an accused to defend himself or herself, and does not permit the release of restricted evidence to further the prosecution case in a pending trial. Although there is superficial attraction in these submissions, in our view they must be rejected.
In a situation where a person is charged with an offence, the trigger for restricted evidence to be made available is, in the first place, the court’s conclusion that it may be desirable in the interests of justice to make the evidence available to a person charged with an offence before the court. By that stage, it might be expected that the Director will be aware of the existence of information contained in the restricted evidence by virtue of s 67. Although simply having been apprised of information under s 67 would not permit the Director to make evidentiary use of restricted evidence upon which it is based in a proceeding, nonetheless knowledge reposing in the Chief Commissioner and the Director relevant to proceedings with respect to ‘a person charged before the court’, to which the person charged is not privy, might provide a sound reason why the interests of justice demand that the person charged have the restricted evidence made available to him or her. Further, possession of information deriving from knowledge of restricted evidence might also provide a sound reason why the Director might wish to have the evidence available for use in proceedings with respect to the person charged. Thus, s 43A cannot be read as going only to the interests of the person charged to further his or her defence.
Support for this view is to be derived from the interpretation given to the former sub-ss 43(4), (4A) and (5) by this Court in Mary Brown. As counsel for the Chief Examiner pointed out, those subsections were stripped from s 43 by the amending Act, and recast — with modifications — in s 43A. Thus, the ‘new’ sub‑s 43A(1) and (2) are ‘built out of the old s 43(4)’; the new s 43A(4) ‘is derived from the old s 43(4A); and the new s 43A(5) arises out of the former s 43(5). Prior to the amending Act, sub-ss 43(4), (4A) and (5) provided:
43Restriction on publication of evidence
…
(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), 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) the 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 sub-section (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.
The fact that the legislature has seen fit effectively to re-enact the provisions of the former sub-ss 43(3), (4A) and (5) — albeit that they have been lifted from s 43 and inserted (slightly, but not significantly, altered) — in s 43A, is a powerful indication that the provisions of s 43A are to be given the interpretation afforded them in Mary Brown. Where words in an Act have received a judicial construction in a superior court, it may be assumed — all other things being equal — that they are to be given the same construction when used in a subsequent statute,[32] even if the language is not precisely replicated.[33] As the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) observed in Alcan:[34]
There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them’]’[35] …
[32]See Pearce & Geddes, Statutory Interpretation in Australia, (6th ed), [3.43] et seq.
[33]Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264, [29]-[30]] (Sackville, North and Merkel JJ).
[34]Re Alcan Australia Limited & Ors; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106. See also Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 324-5 [7]-[8] (Gleeson CJ), 346-7 [81] (McHugh J), 370-1 [161]-[162] (Gummow, Hayne and Heydon JJ).
[35]Barras v Aberdeen Steam Trawling & Fishing Co, [1933] AC 402, at p 446, per Lord Macmillan. See also D’Emden v Pedder (1904) 1 CLR 91, at p 110; Pillar v Arthur (1912) 15 CLR 18, at pp 22, 25, 29-30; Platz v Osborne (1943) 68 CLR 133, at pp 141, 146, 146-147.
In Mary Brown, the Chief Examiner had made a non-publication order under s 43, but had purported to exempt from its operation members of Victoria Police and the Office of Public Prosecutions ‘for the purposes 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’. In this Court, the exemptions were held to be invalid. It was held that where a non-publication order had been made, the mechanism provided by sub-ss 43(4)-(5) of the Act was the only means by which evidence given by a witness before the Chief Examiner could be relied upon in a prosecution. Tate JA (with whom Harper JA and Garde AJA agreed) said:[36]
In my view, it is the mechanism the Act provides pursuant to [ss 43(4)–(5)][37] 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(4)–(5)] 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.
[36]Mary Brown, [95].
[37]It is plain that the allusion to ‘ss 43-45’ in the judgment is a slip, and that the intended reference is to sub-ss 43(4)-(5).
Tate JA went on to observe:[38]
The mechanism provided under s 43(4)-(5) contemplates a staged process. The first stage, under subs (4) [see now subs 43A(1) and (2)], 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.[39] Subsection (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 subs (4A) [see now s 43A(4)], 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 subs (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 subs (5) [see now s 43A(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 is implicit in this process that the evidence of the witness, if made available to the defendant must also be made available to the prosecution. …
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’.[40] …
[38]Mary Brown, [98]-[101].
[39][James v Office of the Chief Examiner] [2006] VSC 384, [9].
[40][2006] VSC 384, [11].
Although, at first blush, it might appear to be curious that s 43A speaks only of making evidence available to ‘a person charged with an offence’ if it is considered ‘desirable in the interests of justice’ — and does not speak specifically of making restricted evidence available to the Director if considered desirable in the interests of justice — that is explicable by virtue of the fact that, in ordinary circumstances, the Director will already have been apprised of the existence of the evidence under s 67. So much is made clear when regard is had to the fact that s 43A(1) contemplates that the Director may make application for a certificate under the subsection. Presumably, the Director could only make an application if aware of the restricted evidence.
Support for the view that s 43A provides the exclusive mechanism for making restricted evidence available after a person has been charged, and that s 43B provides the mechanism for making restricted evidence available when a person has not been charged, may be derived from the headings to each section.[41] By virtue of s 36(2A) of the Interpretation of Legislation Act 1984 the heading is part of the Act. It is axiomatic that the Act must be read as a whole. At the very least, the heading of a section is a general guide to its subject-matter. That is of particular significance, in our view, where, as in this case, the sections under consideration have been enacted following a decision of this Court dealing with coterminous provisions of the Act. And, although it may be accepted that the heading of a section will not support an interpretation that the operative words of the section cannot bear, in this case we can see no tension between the headings to s 43A and s 43B and their operative words. Indeed, they appear to us to be harmonious.
[41]See [47] and [52] above.
Given that the provisions do not suffer from ambiguity, there is no need to have recourse to Parliamentary debates or explanatory materials. We note, however, that the interpretation we would give to s 43A and s 43B coincides with the effect that they were intended to have as evidenced in the Second Reading speech. In part, when discussing the proposed amendments to be effected by the Act by the Criminal Organisations and Other Acts Amendment Bill 2014, the Attorney-General said:[42]
The bill creates two new provisions, sections 43A and 43B, which provide mechanisms for the release of restricted evidence respectively where a person has been charged with an offence, and where a person has not yet been charged. These modifications streamline and clarify the current processes under section 43. The bill creates a definition of restricted evidence and inserts a provision clarifying that the operation of the amended sections do not prevent the communication of restricted evidence for the purpose of prosecuting a person charged with an offence under the act itself (such as refusing to answer a question, providing false or misleading evidence and obstructing or hindering the Chief Examiner).
The process under the new section 43A replaces the old sections 43(4) to (5). This provides for an application to a court that restricted evidence be made available to a person charged with an offence before the court. The Chief Commissioner, the Director of Public Prosecutions or the person charged can make the application. The provisions create a process whereby the material is provided to the court, and the Chief Examiner, the Chief Commissioner of Police and any witness whose interests are affected by the material can then make submissions as to its release.
The new section 43B provides a similar process where a person has not been charged with an offence. Under the new provisions, the Chief Commissioner may apply to a court for an order that restricted evidence be made available to the Director of Public Prosecutions 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 so made available.
Again, the provisions create material is first provided to the court, and the Chief Examiner, the Chief Commissioner of Police, the Director of Public Prosecutions and any witness whose interests are affected by the material may then make submissions as to its release.
After hearing the submissions, the court may make the evidence available to the Director of Public Prosecutions if satisfied there are reasonable grounds for the suspicion founding the application and the interests of justice require the evidence to be made so available. If the evidence is released and a person is subsequently charged with an offence, the Director of Public Prosecutions is not prevented from making the evidence available to the person charged or their legal representative.
[42]Parliamentary Debates, Legislative Assembly, 26 June 2014, 2388–9.
For the foregoing reasons, we would not uphold the first ground.
Ground 2: Was it in the interests of justice to release the restricted evidence?
Counsel for the appellant submitted that if, contrary to his main contention, the Court upheld the primary judge’s construction of s 43A, it was not open to the judge to find that it was in the interests of justice to release the evidence. There was a real danger to the appellant (and for all prosecution witnesses) if her evidence was released. That was so notwithstanding that [*redacted] was in custody. Moreover, the appellant stood in a special category. She is [*redacted]. She had given evidence of admissions of which she had become aware because of that relationship. She had deceived [*redacted] by telling him that she had not cooperated with authorities. [*redacted] knew the addresses of her family members, who might become surrogate targets. She stands in grave danger if her evidence is released.
As against that, so it was submitted, without the appellant’s evidence the prosecution’s case remains strong. Her evidence is not crucial. The judge was ‘quite strongly influenced’ by a concern that without the appellant’s evidence the prosecution case might falsely rest upon the premise that the murder was motivated by drugs, and [*redacted]’s application for severance likewise. It was argued, however, that such a fear must be unfounded, since the Director of Public Prosecutions is apparently now aware of the appellant’s evidence, and the prosecutor is bound to fairly assist the court to arrive at the truth and not to make submissions of fact which are not soundly based. It is inconceivable that the prosecution would pursue a motive known to be false.
Finally, it was submitted that the release of the evidence may occur only if the interests of justice require it. In context, ‘require’ is an imperative word, indicating the strength of the conclusion to be reached before restricted evidence is released. It was submitted that, in the circumstances of this case, the interests of justice do not require the release of the evidence.
The appellant submitted that this ground fell to be determined according to House[43] principles. Thus the appellant adopted the burden of showing that the primary judge acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; mistook the facts; failed to take into account some material consideration; or arrived at a result which, on the facts, is unreasonable or plainly unjust.
[43]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, 539–40 [13], 552 [61] (‘Nigro’).
To our minds, the word ‘require’ connotes demanding something as necessary or obligatory, rather than being merely permissive. Further, although in any given case, the nature and content of ‘the interests of justice’ must be derived from the context — statutory and otherwise — that is applicable, it may safely be essayed that the interests of justice in the present case include the public interest in the conviction of [*redacted] if he is guilty (and his acquittal if the prosecution evidence is insufficient to satisfy the burden of proof), and the appellant’s interest in ensuring that her safety is not prejudiced. Moreover, since the public interest in ensuring [*redacted]’s conviction by recourse to all of the relevant and admissible evidence going to establish his guilt is in tension with the appellant’s interest in protecting her personal safety, determining what the interests of justice require calls for an evaluation of the importance of the restricted evidence to the possibility of [*redacted]’s lawful conviction if it is made available (and his possible wrongful acquittal if it is not made available), against the importance of avoiding possible prejudice to the appellant’s personal safety.
Putting to one side the issues raised by ground 4, in our view the primary judge’s determination that the interests of justice required that the evidence of the appellant be made available cannot be said to be plainly wrong or wholly erroneous.[44] Indeed, with the caveat we will express when dealing with ground 4, in our view his Honour’s decision was plainly correct. So as to make comprehensible our reasons for this conclusion, we need say a little more about the nature of the case against [*redacted].
[44]Nigro, ibid.
As we understand the prosecution case, it is said that, [*redacted].
[*redacted].
[*redacted].
[*redacted].
[*redacted].
[*redacted].
[*redacted].
[*redacted].
In this Court, it was undisputed that part of the appellant’s restricted evidence to the Chief Examiner is to the following effect: [*redacted].
It is plain that the appellant’s evidence is highly probative. It provides [*redacted].
None involved in this case denied that, should her evidence be made available to [*redacted], the risk to the appellant’s safety is real. In our view, however, the provisions of the Act contemplate that there will be occasions where the safety of a witness might be put at risk by making his or her restricted evidence available, yet the interests of justice nonetheless require that the evidence be made available. This is such a case. Making due allowance for the fact that the appellant’s evidence was given under compulsion, and at a time when she was entitled to expect that her safety would be protected by its non-disclosure, the interests of justice require that her evidence be made available.
It matters little, in our view, that the prosecution’s circumstantial case would remain strong absent her evidence. The appellant’s evidence provides very significant underpinning to that circumstantial case. Moreover, her evidence contains a confession to the killing by [*redacted], and attempts by him to cover up that killing. Hence the importance of the evidence cannot be gainsaid. [*redacted] is charged with murder. There is a public interest in ensuring his conviction for that most serious crime. Proving [*redacted]’s guilt of that crime, by harvesting the appellant’s restricted evidence, outweighs the interest that there may be in avoiding prejudice to the appellant’s safety. Her safety is, of course, a factor which must be weighed in the balance in determining what the interests of justice require. Securing [*redacted]’s conviction for murder, however, in the circumstances of this case outweighs her legitimate concerns for her welfare.
Having read the primary judge’s reasons, it is apparent that he appropriately balanced all relevant factors as was required of him. Apart from a matter to which we will turn when considering ground 4, we can detect no error in his approach. It cannot be said that his Honour’s decision is plainly wrong or wholly erroneous.
We would not uphold ground 2.
Ground 3: In considering the interests of justice was the primary judge required to consider the attitude of future witnesses?
The appellant submitted that one of the considerations urged upon the primary judge as relevant to the determination of whether it was required in the interests of justice to release the evidence was that, if witnesses were endangered by the release of their initially restricted evidence, future witnesses would be less likely to co-operate with the scheme of the Act. Notwithstanding that this is so, one cannot detect in the judge’s reasons any consideration of that factor. It was, it was contended, a matter to which the judge was required to give consideration. The judge’s failure to do so vitiates his decision.
In our opinion, this ground is wholly without substance.
When called upon to consider whether or not to make restricted evidence available under s 43A, the court must receive submissions from the Chief Examiner, the Chief Commissioner and the witness (if the evidence ‘involves’ his or her ‘interests’). If, after having examined the restricted evidence and considered relevant submissions, the court considers that the interests of justice so require, the restricted evidence may be made available to the person charged with an offence before the court and to the Director.
By its terms, s 43A makes clear that the ‘interests of justice’ include the ‘interests’ of the witness, and those of the person charged and the Director. Furthermore, the requirement for the court to examine the evidence in the particular case and to receive submissions from the particular witness, and to only make the restricted evidence available if the interests of justice so require, make plain that the interests of justice are those that obtain in the particular case. Section 43A does not invite consideration by the court called upon to make a decision whether to make restricted evidence available of any suggested hypothetical wider ramifications flowing from an order under the section. Indeed, to try and predict, and to take into account, what future witnesses may or may not do, would be to take into account an irrelevant — and potentially vitiating — consideration.
Ground 3 must fail.
Ground 4: Was there a want of procedural fairness?
The appellant submitted that it appears from the primary judge’s reasons that he had information concerning the pending trial of [*redacted] to which the appellant was not made privy, but which bore on the issues that fell for the judge’s determination. Following the conclusion of the hearing before his Honour, it appears from his reasons that he became aware of significant additional material — not drawn to the appellant’s attention — which was relevant to his decision. Given the importance of the undisclosed material to the judge’s decision to release the appellant’s evidence, procedural fairness dictated that the judge disclose the existence of the material to the appellant and invite submissions on it. It was contended that, had procedural fairness been afforded — and the appellant been given the opportunity to address the undisclosed material — the end result might have been different. Failure to afford procedural fairness has infected the primary judge’s decision.
In our opinion, it is plain that in reaching his decision the primary judge did have regard to, and act on, material of which he did not apprise the appellant. With respect, his Honour was in error to do so. In the particular circumstances of this case, however, it is an error of no consequence. It is an error which should not vitiate the orders made.
As we have earlier observed, [*redacted]. Following the primary judge receiving submissions from the appellant and other interested parties with respect to the application under s 43A, it seems that he was provided with, and took account of, further information bearing on the issues that he had to decide. His Honour said:[45]
… Between the date of hearing submissions from the parties to this application, and handing down my ruling, the Crown filed a notice of additional evidence pursuant to s 188 of the Criminal Procedure Act 2009. With the notice is a new statement of evidence from [*redacted].
[45][*redacted].
The judge went on to say that, in weighing up the various considerations in the matter, he was ‘strongly influenced’ by the fact that the prosecution case had proceeded on a premise which the appellant’s evidence — ‘now supported in part by [*redacted]’s new statement’ — might now be seen to show as false.[46] Thus, quite plainly, his Honour had regard to the new material relating to [*redacted] — which was not drawn to the appellant’s attention — when making the decision now under scrutiny.
[46]Reasons, [116].
There can be no doubt, in our view, that the appellant had an interest in preserving the Chief Examiner’s direction restricting her evidence, and in ensuring that her evidence was not made available to the person charged, since to make the evidence available had the capacity to prejudice her safety. By virtue of sub‑ss 43A(3), (4)(c) and (5) of the Act, in our view the appellant had a reasonable expectation that she would be apprised of any relevant matters which might impinge adversely on her interest in maintaining the Chief Examiner’s determination under s 43(1), and be given an opportunity of making submissions.[47] In our opinion, she had a right to be given notice of any information in the court’s hands which the court might be minded to act upon in derogation of her interest in maintaining the direction for non-disclosure, and to make submissions on it. That does not mean that it was necessary to provide her with a copy of [*redacted]’s statement or other supporting material. But it was necessary that she be given notice of the import of [*redacted]’s evidence, and generally of its relevance to the matters raised for the court’s determination, and be given an opportunity of addressing those matters.
[47]Kioa v West (1985) 159 CLR 550.
Although the appellant should have in a general way been given notice of [*redacted]’s evidence, and have been given an opportunity to make submissions on it, failure to do so cannot have occasioned any substantial wrong or miscarriage of justice.[48] It is difficult to imagine any submissions that the appellant might have made concerning the undisclosed material which might have influenced the court to find that the interests of justice did not require her restricted evidence be made available. With or without [*redacted]’s evidence, it was, in our view, inevitable that the judge would have reached the same conclusion.
[48]See Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.
For these reasons, ground 4 must fail.
Conclusion
If leave to appeal is necessary we would grant leave, but dismiss the appeal.
It is to be noted that the parties agreed that, should the appeal fail, there should be no order as to costs.
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