KSC v Crime and Misconduct Commission & Anor
[2009] QSC 23
•23 February 2009
SUPREME COURT OF QUEENSLAND
CITATION:
KSC v CMC & Anor [2009] QSC 23
PARTIES:
KSC
(applicant)
v
THE CRIME AND MISCONDUCT COMMISSION
(first respondent)
KAC
(second respondent)FILE NO:
DIVISION:
Trial Division
PROCEEDING:
Originating application
DELIVERED ON:
23 February 2009
DELIVERED AT:
Supreme Court, Brisbane
HEARING DATE:
4 February 2009
JUDGE:
Wilson J
ORDER:
That the application be dismissed
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – GENERALLY – where applicant was arrested for offences – where applicant was married to second respondent at time of arrest – where there were three children of the relationship and an older child of an earlier relationship of the second respondent – where applicant and second respondent were later divorced – where second respondent and children were included in the witness protection program under the Witness Protection Act 2000 (Qld) – whether declarations that the ongoing witness protection program to the second respondent is without merit or cause; does not qualify under the Witness Protection Act 2000 (Qld); and amounts to an abuse of process should be made
Crime and Misconduct Act 2001 (Qld), ss 9, 56, 259(2), 329
Family Law Act 1975 (Cth), s 68CSupreme Court of Queensland Act 1991(Qld), s 128
Witness Protection Act 1994 (Cth)
Witness Protection Act 2000 (Qld), ss 6, 38(2)T v F & ors (1999) 151 FLR 312, applied
COUNSEL:
The applicant appeared on his own behalf
DT Murphy (solicitor) for the first respondentSOLICITORS:
Official Solicitor for the Crime and Misconduct Commission for the first respondent
Wilson J: The applicant was arrested for serious drug offences in January 2001; subsequently he pleaded guilty and was sentenced to 10 years' imprisonment. He must serve 80% of the sentence before becoming eligible for parole. In March 2006 he pleaded guilty to money laundering and was sentenced to 15 months imprisonment cumulative on the earlier sentence.
At the time of his arrest in 2001 the applicant was aged about 40. He and the second respondent (who is 14 years younger) had been living together since 1993 and had married in 1996. There were three children of their relationship, and the second respondent had an older child of an earlier relationship. He and the second respondent were divorced in 2002.
In about August 2004 the second respondent and the children were included in the witness protection program under the Witness Protection Act 2000 (Qld).
The applicant contends that the second respondent ought not to have been placed on the witness protection program. He has applied to this Court for the following declarations –
“1.The Witness Protection Program - that the ongoing witness protection by the first respondent (CMC) to the second respondent is without merit or cause - thus an abuse of the Witness Protection Process has occurred.
2.Pursuant to the Witness Protection Program, that the Witness Protection of the second respondent does not qualify under the Witness Protection Act.
3. An abuse of process by the first respondent has occurred by virtue of failing to qualify under the terms of the Witness Protection Act.”
On 20 January 2009 the Court ordered that the application be heard in closed court[1] and that material filed in relation to it and exhibits tendered be placed in an envelope to be sealed and marked "Not to be opened without an order of the Court". The substantive hearing took place on 4 February 2009.
[1] See Supreme Court of Queensland Act 1991 (Qld), s 128(4)(a).
Pursuant to s 56 of the Crime and Misconduct Act 2001 (Qld) witness protection is a function of the CMC (the first respondent). By s 6 of the Witness Protection Act 2000 (Qld) the chairperson of the CMC may include a person in the witness protection program if he considers -
“(a) the person needs protection from a danger arising —
(i) because the person has helped, or is helping, a law enforcement agency in the performance of its functions; or
(ii) because of the person’s relationship or association with a person who has helped, or is helping, a law enforcement agency in the performance of its functions; and
(b) it is appropriate to include the person in the program.
Example for paragraph (a)(ii )—
a family member or an associate of a person who has helped a law enforcement agency in a criminal investigation”
Subsection (3) lists factors which the chairperson must consider in deciding whether to include someone in the program. They include -
“(f) the nature of any threat to the person considered by the person or the chairperson to exist”.
By subsection (4) -
“(4) The chairperson must not include the person in the program —
(a) if the chairperson considers there is not enough information available to the chairperson to decide whether to include the person in the program; or
(b) as a reward for giving evidence or making a statement.”
The Director of Witness Protection and Operations Support at the CMC, has sworn that the second respondent and the children were included in the program because of assistance she provided to the CMC in relation to money laundering activities engaged in by the applicant and others. He has sworn -
“10.I am of the view that:
(a) the Applicant, … presents the greatest danger to the safety of the Second Respondent; and
(b) there are other people who present a danger to the safety of the Second Respondent.”
In 2008 the applicant brought a proceeding in the Federal Magistrates Court for a parenting order in relation to the four children. On 8 September 2008 that Court ordered that the four children live with the second respondent and that she have sole parental responsibility for major long term decisions concerning their care, welfare and development. It further ordered (inter alia)-
“3.That for the personal protection of the children and the mother, the father is hereby restrained by himself, his servants and agents from locating, approaching, contacting, communicating with or attempting to locate, approach, contact and communicate with the mother or the children or any of them in any manner either directly or indirectly, and that without limiting the scope of this order that restraint extends to contact or communication by telephone, text message, SMS message, written mail, electronic mail and all other electronic communications.
4.AND IT IS NOTED THAT this order is for the personal protection of children and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s.68C of the Family Law Act 1975 (Cth).
THE COURT FURTHER ORDERS:
…
6.That the mother be at liberty to attend all Court appearances via telephone or video link as may be arranged by the officers of the Witness Protection Program.
7.That in all documents, notices and court appearances in the proceedings, that the mother's solicitor be known simply as Mr AB and that there be no disclosure of the solicitor's practice address or contact details.
The applicant did not attend the hearing on 8 September 2008 because he was in hospital. A further hearing took place on 3 November 2008 when that Court directed that the children be separately represented.
In that proceeding in the Federal Magistrates Court the second respondent deposed to the applicant's having been violent towards her during their relationship and having made threats to her after he was imprisoned. He denied being violent towards her or threatening her, as he continued to do in this Court. He asserted that the witness protection program was being used as a reason to prevent him spending time with the children, swearing in an affidavit -
“The reason I can easily prove the Witness Protection Program is being abused is because I have had [the second respondent’s] address for sometime now, I keep tabs on how our children are going, but mostly, I have never in my life threatened to kill or harm [the second respondent] in any way. If anything, if anyone was to harm her or our children in any way, they would have me to answer to, even to this day after everything I have been through, I still care enough to protect the mother of my children.” (Emphasis added)
The second respondent’s inclusion in the program does not prevent the Federal Magistrates Court from determining his application there. As the Full Court of the Family Court observed in the context of the interaction between the Witness Protection Act 1994 (Cth) and the Family Law Act 1975 (Cth) in T v F & ors[2], in deciding what is in the best interest of a child, that Court may have to weigh up competing interests:
“39.From the perspective that a Family Court judge must examine the issue, namely what is in the best interest of the child, there are very difficult issues to be resolved. On the one hand there is the emotional risk to the child if the child is deprived of a relationship with its non-resident parent. On the other hand there is the physical risk to the child, to the residence parent and to those administering the witness protection scheme, if, via the child, either intentionally or accidentally, the whereabouts of the protected witness becomes available to those who would do harm to that witness or to the child or to those protecting the witness. These are matters which need to be carefully balanced by a Family Court judge when determining whether or not it is appropriate to make a contact order and if so the nature of the order that should be made. Whilst the evaluation of security issues is within the exclusive province of the commissioner, how those issues should ultimately impact upon the child the subject matter of the proceedings remains the exclusive province of the judicial officer exercising FLA power.
46.If in this case there is truly a conflict between making orders which would in the opinion of the Court advance the welfare of the children on the one hand, and, on the other hand, jeopardising or somehow detracting from the protection which the Commissioner seeks to provide to a witness within the protection scheme, then the court needs to carefully weigh up the competing interests but it may, if it ultimately determines to do so, give priority over the former interest over the latter.”
[2](1999) 151 FLR 312.
The applicant has also asserted in the Federal Magistrates Court and before this Court that the witness protection program is being abused to protect an intimate relationship between the second respondent and an acting police officer and to advance the case against him in a civil confiscation proceeding initiated by the State of Queensland. He has previously asserted that officers of the CMC have made threats against him.
This Court has wide power to grant declaratory relief under s 128 of the Supreme Court Act 1995 (Qld), but the relief is discretionary in nature. The solicitor for the CMC submitted that it should refuse to give declaratory relief in this case because –
(a) it is not necessary for it to do so to enable the Federal Magistrates Court to determine the proceeding before it;
(b) any abuse of process relating to the confiscation proceeding can be dealt with in that proceeding which is still before the Court; and
(c) any complaint against officers of the CMC would be more appropriately investigated by the Parliamentary Commissioner.
This Court could not determine the abuse of process issues raised without a full examination of relevant facts and processes. This could compromise not only the protection of the second respondent and the children but also the witness protection program itself and the protection of other individuals included in it.
The Legislature’s concern for these security issues has been made plain in s 38(2) of the Witness Protection Act 2000 (Qld) which provides that unless the Court otherwise orders, CMC officers cannot be required to produce a document or to disclose anything relating to the performance of duties or the protection of persons under the Act.[3]
[3]See Witness Protection Act 2000 (Qld), s 38(2).
Under s 9 of the Crime and Misconduct Act 2001(Qld) the Parliamentary Crime and Misconduct Committee (PCMC) is a standing committee of the Legislative Assembly with particular responsibility for monitoring and reviewing the CMC’s performance. On receipt of a complaint about the conduct or activities of the CMC or a CMC officer or on being notified by the chairperson of the CMC of conduct of a CMC officer which he suspects involves or may involve improper conduct,[4] the PCMC may take one or more of the courses prescribed in s 295(2):
[4]Crime and Misconduct Act 2001(Qld), s 329.
“(a) ask the commission to give a report on the matter to the committee;
(b) ask the commission to investigate and give a report on the matter to the committee;
(c) ask the police service or another law enforcement agency to investigate and give a report on the matter to the committee;
(d) ask the parliamentary commissioner to investigate and give a report on the matter to the committee;
(e) refer the matter to the director of public prosecutions;
(f) take other action the committee considers appropriate.”
The Parliamentary Crime and Misconduct Commissioner (the Parliamentary Commissioner) is an officer of the Parliament who assists the PCMC in the performance of its functions.[5] As required by the PCMC, the Parliamentary Commissioner is to –
[5]Crime and Misconduct Act 2001(Qld), s 10.
“(2)…
(b) investigate, including by accessing operational files of the commission to which the parliamentary committee is denied access, complaints made against, or concerns expressed about, the conduct or activities of —
(i) the commission; or
(ii) a commission officer”.[6]
[6]Crime and Misconduct Act 2001 (Qld), s 314(2)(b).
As the solicitor for the CMC submitted, in investigating a complaint the Parliamentary Commissioner has access to materials not otherwise available without a Court order; he or she can handle those materials sensitively and come to an independent view upon them. In my view the applicant’s complaints about abuse of the witness protection program, involving as they do complaint against the chairperson and officers of the CMC, would be more appropriately dealt with by the PCMC, which might refer them to the Parliamentary Commissioner for investigation.
Since 2004 the applicant has made various allegations of misconduct by CMC officers. Allegations he has made to the chairperson have all been referred to the PCMC, which has never found that any CMC officer has engaged in misconduct in relation to the applicant. There is nothing to suggest any inadequacy in the way those complaints have been handled.
In all the circumstances the application should be dismissed.
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