R (on the application of the Chief Examiner) v DF
[2014] VSC 119
•3 APRIL 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 02572 of 2013
| THE QUEEN (On the application of the Chief Examiner pursuant to s 49 of the Major Crime (Investigative Powers) Act2004, a certificate of Charge dated 21 May 2013 and the order of the Honourable Justice Curtain made on 21 May 2013 in this proceeding) | Applicant |
| v | |
| DF | Respondent |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 DECEMBER 2013 | |
DATE OF JUDGMENT: | 3 APRIL 2014 | |
CASE MAY BE CITED AS: | R (on the application of the Chief Examiner) v DF | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 119 | |
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CRIMINAL PROCEDURE – Contempt of the Chief Examiner – Major Crime (Investigative Powers) Act 2004 - Refusal to answer questions – Whether examinee before the Chief Examiner under a valid custody order – Where custody order amended by Chief Examiner after service but before execution – Order required that person be delivered into the custody of a member of the police force other than the original applicant – Original applicant member unfit for duties - Whether Chief Examiner has power to amend a custody order on application of a member other than the original applicant – Amended order valid – ss 15, 18, 49 Major Crime (Investigative Powers) Act 2004 – s 20 Police Regulation Act 1958 – s 41A Interpretation of Legislation Act 1994 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr GH Livermore with Mr A Imrie of counsel | Office of the Chief Examiner |
| For the Respondent | Mr S Holt SC with Mr M Stanton of counsel | Victoria Legal Aid |
HIS HONOUR:
Background
On 15 April 2013, King J made a coercive powers order pursuant to s 8 of the Major Crime (Investigative Powers) Act2004 (‘the Act’) for a period of 12 months. The coercive powers order was made in relation to two organised crime offences.
On 8 May 2013, the Chief Examiner made a custody order pursuant to s 18 of the Act in respect of the respondent. The applicant, in an ex parte application, was Detective Senior Sergeant Stephen Pucar. The order was directed to the General Manager of the Victorian prison where the respondent was incarcerated, and required that the respondent be delivered into the custody of Detective Senior Sergeant Pucar to be brought before the Chief Examiner on 21 and 22 May 2013 at the County Court in Melbourne to give evidence.
A copy of the custody order was also directed to the Operations Manager for Corrections Victoria to allow for the respondent to be transported from the prison to the County Court. Three confidentiality notices were issued under s 20 of the Act directed to the respondent and each manager respectively. The order and notices were duly served on 13 and 14 May 2013.
However, Detective Senior Sergeant Pucar suffered a serious elbow injury requiring surgery and was not fit for duties on 21 and 22 May 2013.
On 20 May 2013, Detective Inspector Raymond McLeod-Dryden applied, ex parte, to the Chief Examiner to amend the custody order to name him as the nominated person, allowing the respondent to be delivered into his custody, because of the inability of Detective Senior Sergeant Pucar to execute the custody order. The Chief Examiner granted the application and amended the custody order by inserting the name of Detective Inspector McLeod-Dryden in place of the name of Detective Senior Sergeant Pucar. The amendment of the custody order was handwritten, signed and dated by the Chief Examiner, who considered that he was entitled to amend the order as it had not then been executed.
The amended custody order was served on the Operations Manager for Corrections Victoria but could not be served on either the respondent or the General Manager of the prison. Early on the morning of 21 May 2013 acting under the original order, the General Manager of the prison released the respondent into the custody of prisoner transport personnel from the Office of Corrections. The respondent was transported by secure prisoner transportation bus from the prison to the holding cells at the County Court at Melbourne.
While he was being transported, the Office of the Chief Examiner learned that neither the respondent nor the prison General Manager had been served with the amended custody order. A copy of the amended custody order was faxed to the prison General Manager who notated the faxed copy with a memorial of his receipt of it and faxed it back. When the respondent arrived at the Melbourne County Court, he was served with the custody order in its amended form and provided with some explanation of the amendment and the reasons for it. At all times prior to the service of the amended custody order the respondent remained in the lawful custody of the State as an incarcerated prisoner.
The Act describes delivery into the member’s custody to be for ‘the purpose of bringing the person before the Chief Examiner to give evidence at an examination’. It is desirable to understand precisely how that purpose is executed because, contrary to what one might think from simply reading the section, in this case at no stage was the examinee in the custody of the police officer and not, in practical terms, also under the supervision of the prison officers and the Chief Examiner. When a witness is held in custody, the execution of a custody order is a two stage process. In this case, the first stage was that which I have just described, the process by which the examinee was brought by the Office of Corrections from his place of detention to the place for examination. The second stage occurs when the examinee is released into the custody of the member of the police force for examination.
I find that the respondent was released into the custody of Detective Inspector McLeod-Dryden in the following circumstances. Detective Inspector McLeod-Dryden was assisting the Chief Examiner with the conduct of the examination, sitting at the bar table before the Chief Examiner. When the respondent’s legal representative arrived at the hearing room, Detective Inspector McLeod-Dryden was present. The Chief Examiner, who had been dealing with preliminary issues, then announced that arrangements would be made for the respondent to be brought into the hearing room. Detective Inspector McLeod-Dryden then left the hearing room.
Four prison officers escorted the respondent at all times and he was under their control until surrendered to the Chief Examiner in the examination room. When the respondent was brought to the hearing room, the Chief Examiner directed that he be placed in the dock. The Chief Examiner directed that the prison officers be permitted to remain present in the hearing room, which they did. At all times, the respondent remained in a locked room in the presence of the prison officers. Detective Inspector McLeod-Dryden returned to the hearing room during this process.
The Chief Examiner then recited the circumstances of the making of the original custody order, the unavailability of Detective Senior Sergeant Pucar and the application to amend the custody order that he had granted. The Chief Examiner stated that the amended custody order required that the respondent be delivered into the custody of Detective Inspector McLeod-Dryden, who was identified in the hearing room. The Chief Examiner expressed his opinion that the custody order had been partially executed and invited submissions from the respondent’s legal representative before the process of completing execution of the custody order was undertaken.
After a brief adjournment, the respondent’s legal representative informed the Chief Examiner that the respondent did not concede the validity of the process that was occurring but he had no instructions to put any submission to the Chief Examiner. The respondent was then formally transferred into the custody of Detective Inspector McLeod-Dryden and moved from the dock to sit at the bar table. At this point the amended custody order was fully executed. The Chief Examiner remarked that as the respondent was, by court order, incarcerated, it was appropriate that the prison officers remain in the hearing room for the duration of the examination and they did so.
The Chief Examiner then explained at length the procedure that was to be followed and the respondent’s rights and obligations. This explanation included informing the respondent that he was required under the Act to take an oath or affirmation and answer questions when required to do so. The Chief Examiner informed the respondent of the penalties provided by the Act for refusal to answer questions and of the powers of the Chief Examiner to charge him with contempt, the circumstances in which the power to charge with contempt could be used, and the procedures that applied if that power was exercised.
The respondent took the oath and then refused to answer any and all questions put to him. The Chief Examiner stood down the examination and a certificate of charge and arrest warrant pursuant to s 49(2) of the Act were prepared.
When the examination reconvened, the respondent was charged with contempt and served with the certificate of charge and arrest warrant. The respondent was offered a final opportunity to answer questions relevant to the organised crime offence, but the respondent again failed or refused to answer any and all questions put to him and the examination was concluded. The respondent was then brought before a judge of this court.
The applicable legislative framework
The Act provides a regime for authorisation and oversight of the use of coercive powers and the investigation of organised crime offences.[1]
[1]Section 1(a) Major Crime (Investigative Powers) Act2004. For a more extensive discussion of the legislative scheme, see The Chief Examiner v Brown (a pseudonym) [2013] VSCA 167 (27 June 2013).
An organised crime offence is an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—
(a) involves 2 or more offenders; and
(b) involves substantial planning and organisation; and
(c) forms part of systemic and continuing criminal activity; and
(d) has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.[2]
[2]s 3 Major Crime (Investigative Powers) Act2004.
A coercive powers order is made under s 8 of the Act, which states:
8. Determination of application
(1) The Supreme Court may make a coercive powers order if satisfied—
(a)that there are reasonable grounds for the suspicion founding the application for the order; and
(b)that it is in the public interest to make the order, having regard to—
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.
(2)In making a coercive powers order, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.
Custody orders are made under s 18 of the Act.
18. Witness already held in custody
(1)This section applies if a coercive powers order is in force in respect of an organised crime offence.
(2)If a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court or the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing the person before the Chief Examiner to give evidence at an examination.
[…]
(4)If the application under subsection (2) is made to the Chief Examiner, section 15(3), (4), (5), (6) and (10) apply as if a reference to—
(a)a summons were a reference to an order referred to in subsection (2); and
(b)issuing a summons were a reference to making an order referred to in subsection (2).
(5) An order made on application under subsection (2)—
(a) must be in the prescribed form; and
[…]
(7)At the cessation of giving evidence at an examination before the Chief Examiner or on release from compliance with the order by the Chief Examiner, the member of the police force must deliver the person who is the subject of the order to the place of detention at which the person was held or detained at the time of the application for the order.
Section 15 of the Act relevantly states:
(3)The Chief Examiner may determine the procedure for making an application for the issue of a summons under this section.
(4)The Chief Examiner may issue a summons directed to a person, other than a person referred to in subsection (5), if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so, after consideration of—
(a)the evidentiary or intelligence value of the information sought to be obtained from the person; and
[…]
(6) On issuing a summons, the Chief Examiner must record in writing—
(a) the grounds on which the summons is issued;
Section 49 of the Act states:
49. Contempt of Chief Examiner
(1)A person attending before the Chief Examiner in answer to a witness summons is guilty of a contempt of the Chief Examiner if the person—
[…]
(b)being called or examined as a witness at an examination, refuses to be sworn or to make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject-matter of the examination; or
[…]
(2)If it is alleged or appears to the Chief Examiner that a person is guilty of contempt of the Chief Examiner, the Chief Examiner may—
(a)issue a written certificate charging the person with contempt and setting out or attaching details of the alleged contempt (certificate of charge); and
(b) issue a warrant to arrest the person.
Section 49(10) requires a contempt of the Chief Examiner to be dealt with by the Supreme Court as if the contempt were a contempt of an inferior court, and as if the certificate of charge were an application to the Court for punishment for the contempt. The certificate of charge is evidence of the matters set out in or attached to it.[3]
[3]Section 49(11) Major Crime (Investigative Powers) Act2004.
In The Chief Examiner v Brown (a pseudonym),[4] Harper JA observed that the office of the Chief Examiner is based in statute, and, as such, the exercise of the Chief Examiner’s power is dictated by the Act, and must be exercised ‘strictly in accordance with law.’[5] Delivering the leading judgment, Tate JA stated that the statute represents a ‘considerable incursion into fundamental common law rights,’[6] because an examinee’s privilege against self-incrimination has been abrogated[7] for such compulsory examinations. Her Honour stated:[8]
[4][2013] VSCA 167.
[5]Ibid, [1].
[6]Ibid, [79] and see also CR v Attorney-General (Vic) (2007) 173 A Crim R 343, 356-7 [51] (Kaye J).
[7]Section 39 Major Crime (Investigative Powers) Act2004.
[8][2013] VSCA 167, [91]-[92].
Furthermore, the narrow construction of the power to create exceptions for which [the respondent] contended is supported by the approach to the Act adopted by Kaye J in CR v Attorney-General (Vic), based on the principle of legality as expressed in Potter v Minahan; Sargood Brothers v Commonwealth; Ferguson v Union Steamship Company of New Zealand Ltd; Taikato v R and Coco v R. This approach to the Act was adopted also by Macaulay J in REG v Chief Examiner. In CR v Attorney-General (Vic) Kaye J said:
The provisions of the Act constitute a far reaching intrusion into, and derogation of, basic rights of members of the community. The powers provided by the Act affect the liberty of any person who is the subject of a witness summons. They also derogate from the right of a person summonsed before the Chief Examiner to exercise his or her right to silence, and expressly derogate from the right of a person not to incriminate himself or herself. It is fundamental that courts apply a strict construction to statutory provisions which derogate from or affect longstanding common law rights. That approach is based on the presumption that Parliament is cognisant of the common law rights of members of the community, and thus Parliament only intends to derogate from those rights where it expressly and clearly evinces an intention to do so.
It is a fundamental principle of the common law that Acts which derogate from fundamental common law rights should be construed narrowly. (Citations omitted)
Through refusing to answer questions, a potential criminal liability is created and the common law right to liberty is directly engaged.
In addition, I take into account the legislative purposes, scheme, and structure of the Act, which I do not propose to recite in this judgment. The Act has been described in detail by Warren CJ in Re: Application under the Major Crime (Investigative Powers) Act 2004,[9] Kaye J in CR v Attorney General (Vic),[10] and Tate JA in Chief Examiner v Brown.[11]
[9][2009] VSC 381, (2009) 24 VR 415, 418 [4]–[16].
[10][2007] VSC 263, (2007) 163 A Crim R 343, 344 [4]–[16].
[11][2013] VSCA 167, [36]–[49].
It is convenient to also set out the statutory provision on which the applicant’s submissions in part rely. Section 20 of the Police Regulation Act 1958 (Vic) is in these terms:
20. Process directed to one may be executed by another
Any process or any warrant order or command of any court or any coroner under the Coroners Act 2008 or any board tribunal commission or other body (whether constituted by one or by more than one person) established by or under any Act or any member or officer of any such board tribunal commission or body directed delivered or given to any member of the force may be executed and enforced by any other member of the force or his assistants, and every such last-mentioned member of the force and his assistants shall have the same rights powers and authorities for and in the execution of such process warrant order or command, as if the same had been originally directed to him or them expressly by name. [12]
[12]Such provisions are not unique: see e.g. Police Powers and Responsibilities Act 2000 (Qld) s 798; Police Act 1892 (WA) s 21; Police Act 1998 (SA) s 72; Policing Act 2008 (NZ) s 43.
Section 41A of the Interpretation of Legislation Act 1994 (Vic) reads:
41A Power to make instrument includes power to revoke or amend
If an Act or subordinate instrument confers power to make, issue or grant an instrument (not being a subordinate instrument) the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any), to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.
The issues
The respondent contended that contempt cannot be established because a valid custody order is an essential element of contempt pursuant to section 49 of the Act. The Chief Examiner must prove beyond reasonable doubt that there was a valid custody order. The applicant accepted that proposition for the purposes of this application.
The respondent challenged the validity of the amended custody order contending that the order which brought the respondent to the examination was invalid for two reasons. The order did not comply with s 18(2) of the Act in that two different police officers applied for and then executed the order. There was no power for the Chief Examiner to amend the custody order in the manner undertaken. Second, the applicant for the amendment did not have standing to apply for the amended order. The amended custody order was therefore attended by jurisdictional error.
The applicant disputed each of the respondent’s contentions, submitting primarily that by virtue of s 41A of the Interpretation of Legislation Act the Chief Examiner had power to amend the custody order. Further, the applicant supported that contention by reference to s 20 of the Police Regulation Act. That section authorises any member of the police force to execute or enforce the ‘original’ custody order, to take the respondent into custody for the purpose of attending the examination. If any member could execute the custody order, any member could apply for its amendment. In its written submission, the applicant also contended that if the court accepted that the Chief Examiner did not have jurisdiction to amend an order in the manner that was here done, or that the amended order was beyond otherwise jurisdiction, the ‘original’ custody order requiring the attendance of the respondent was valid. As such, section 20 of the Police Regulation Act is a complete answer.
The respondent’s contentions
Section 18 states the procedure to be followed where a coercive powers order is sought in relation to a witness already held in custody. The Chief Examiner may make an order to bring a person before the Chief Examiner to give evidence. Section 18(2) enables a member of the police force to apply for an order that the person be delivered into the custody of the member for the purpose of bringing the person before the Chief Examiner to give evidence at an examination. Central to the respondent’s contention is the use of the definite article in the phrase ‘into the custody of the member’. By reference to the terms of the Act as a whole, which must be narrowly construed, its purposes can be ascertained. Properly understood, the Act requires that the applying member and the receiving member are the same person.
Section 18(5) states that an order made on application under subsection (2) must be in the prescribed form. The prescribed form is Form 2 under Regulation 7 of the Major Crime (Investigative Powers) Regulations 2005. While the form does not require the applying member to be named, it does state that the person ‘be delivered into the custody of (insert name of member of police force who applies for the order).’ This essential precondition for the order is consistent with the language of s 18(2). The extent of the Chief Examiner’s power to make the order, as set out in s 18(2), is supported by the prescribed form under the Regulations.
Relying on the principle of legality,[13] the respondent contended that the plain language of s 18 creates a ‘closed loop’, that is, the section makes clear that the order must be directed to ‘the’ applying member, who will only ever be a specific individual. Only one name can be entered into the prescribed form, because that is all that s 18 permits.
[13]Citing Project Blue Sky Inc v Australian Broadcasting Corporation [1998] HCA 28, (1998) 194 CLR 355, 384.
The respondent conceded that by virtue of s 41A of the Interpretation of Legislation Act the Chief Examiner had power to amend the custody order, but disputes that the power to amend was validly exercised in this instance because an amendment, by force of s 18 of the Act, may only be made by the applicant police officer as named in the order. The power to amend was subject to the same conditions or limitations as constrained the original exercise of the statutory power. The respondent contended that the Chief Examiner was not authorised to make a custody order on the application of police member A for the examinee to be delivered into the custody of police member B, but that, he contended, is exactly what was done. Had Parliament intended otherwise, the section would have provided for the examinee to be delivered into the custody of ‘a member’, or ‘the member or another member on his behalf.’
It is a legislative purpose of the Act that there be containment of information and confidentiality, a purpose that is evident on analysis of s 20 of the Act, which addresses confidentiality in the context of coercive powers orders, and of s 68 of the Act, which contains the requirement of secrecy applying to the Chief Examiner, examiner or member of police personnel. As occurred in this case, a custody order can be accompanied by a confidentiality order which prevents its recipients from discussing it existence or terms with others. Breach of that confidentiality may be punished by imprisonment. The respondent contends that is also evident from the fact that the hearing before this court was in camera. Given the nature of organised crime, the need to achieve confidentiality and contain information not only protects the interests of the Chief Examiner and the investigating police, but also of an examinee in the position of the respondent, who may be in a position of personal danger by virtue of a perception of compliance with a coercive powers order.
Thus, the respondent submitted, the section cannot be read to allow any constable, no matter how junior, to execute the order by virtue of the operation of s 20 of the Police Regulation Act. Such an order is, critically, executed when the custodian of the examinee delivers the examinee into the custody of the member who applied for the custody order, for it is that nominated person who is by the custody order to receive custody of the prisoner. Where the applicant for the custody order is no longer available to receive the examinee into his custody, a fresh application could, and should, have been made. It is not a complicated process, and although it may seem overly technical, this is the precondition for an examination to coercively question the examinee where a consequence may be a contempt with a term of imprisonment.
The applicant’s contentions
The custody order is not invalid on its face, as it complies with the statutory criteria, and is in the prescribed form.[14] There was no challenge to the custody order in its original form.
[14]See s 18(5) Major Crime (Investigative Powers) Act2004.
The applicant contended that, although the prescribed form of a custody order in the Regulations provides for the name of the member receiving custody of the examinee to be recorded, it does not provide for the name of the member making the application to be included. Conceding that the Act does not explicitly provide for the amendment or variation of a custody order, the applicant contended that courts have often implied in an administrative decision maker a power to amend or vary a decision, notice or order, where there is no express statutory power to do so.[15]
[15]Citing E v Chief Examiner [2010] 353, [23]-[26]; Chief Examiner v Brown [2013] VSCA 167, [70] and [72].
Noting the respondent’s concession that by virtue of s 41A of the Interpretation of Legislation Act the Chief Examiner had power to amend the custody order, the applicant submitted that the contention that the power to amend was not validly exercised in this instance was fallacious. The conditions or limitations that constrained the original exercise of the statutory power were not relevantly exceeded. The applicant contended that, by force of s 20 of the Police Regulation Act, it was lawful for a police officer other than the member named in the original custody order to take the respondent into his or her custody. By reason of s 41A, the power in the Chief Examiner to amend a custody order on the application of a member other than the named member is also lawful.
The ‘execution’ of the custody order in this case involved two entities. The first entity was the examinee’s gaoler who was ordered to deliver the examinee into the custody of a nominated police officer. The second entity was the police officer receiving the examinee into his custody to ensure his attendance in the examination room. The role of the police officer in the process as it applied in this case was to take custody of the examinee from his gaoler in the examination room, and then to deliver the examinee back into his gaoler’s custody when the examination concluded. Section 20 of the Police Regulation Act relevantly provides that ‘any … order … of … any … other body … established by or under any Act … directed delivered or given to any member of the force may be executed and enforced by any other member of the force … as if the same had been originally directed to him or them expressly by name.’
The applicant contended that s 20 of the Police Regulation Act applied and was a complete answer. The original order of the Chief Examiner was made by a body established under an Act. It was directed to a named police member. Although its execution, or enforcement, required that Detective Senior Sergeant Pucar accept the respondent from his gaoler’s custody in the examination room, and then deliver the examinee back into the custody of his gaoler at the conclusion of the examination. The original order could be executed and enforced by Detective Inspector McLeod-Dryden as if it had been originally directed to him expressly by name. A fortiori, Detective Inspector McLeod-Dryden could apply to amend the order.
Analysis
Two things plainly did not occur. First, the respondent conceded that in theory the original custody order in favour of Detective Senior Sergeant Pucar could have been discharged and a fresh custody order made on the application of Detective Inspector McLeod-Dryden. That is what not what occurred. It is plain that each of Detective Inspector McLeod-Dryden and the Chief Examiner regarded the application on 20 March 2014 as an application to amend the extant custody order and that is what occurred.
Secondly, the original custody order was not the order that was executed by Detective Inspector McLeod-Dryden.
The original custody order was not revoked. The Chief Examiner did not change the date of the custody order. He did not express himself when amending the order to be satisfied on the matters provided for under s 18(4) of the Act (which applies s 15(4) and (6) that apply on an application for a witness summons to the application for the custody order). Thus, the Chief Examiner did not, on the occasion of the amendment, express himself as satisfied that it was reasonable in the circumstances to issue the custody order after consideration of the matters specified in s 15(4). The Chief Examiner did not, on the occasion of the amendment, record in writing the grounds on which the custody order was issued as required by s 15(6). The Chief Examiner did not need to revisit any of these steps in the process. These matters demonstrate that the Chief Examiner relied on the original application by Detective Senior Sergeant Pucar and was not making a fresh order.
The Chief Examiner gave reasons for the amendment of the custody order in which he stated his view that he had power to amend the order and gave his reasons for considering that it was reasonable in the circumstances to do so. Those reasons, flowing from the inability of Detective Senior Sergeant Pucar through injury to execute the order, were in my view sufficient justification for the amendment that was made. There was no attack mounted against that reasoning before me by the respondent. The amendment of the custody order sought to deal with the circumstances that had arisen since the original order was made without revisiting the original justification for the order. The application to amend the order was made by the member into whose custody the examinee would be released under the terms of the amended order. In context, the same conditions or limitations that the respondent identifies as constraining the original exercise of the statutory power (assuming, without deciding, the status of those constraints) relevantly applied when the power to amend the custody order was exercised. That is, the applicant for the amendment was the member nominated by the amended order to receive custody of the examinee.
The original custody order was amended and it continued with operative effect in the relevant sense. The original application and the order in its original form still evidenced a valid exercise of the statutory power. Further, it was by the operation of the original order that the respondent was released to the prisoner transportation officers of the Office of Corrections. The relevant exchange of the custody of the respondent was effected by the execution of the amended order. In view of the conclusion that I have come to, it is unnecessary to consider whether the original order was revived following an ineffective attempt to amend it and then validly enforced because s 20 of the Police Regulation Act permitted the Detective Inspector to execute it.
I do not accept the respondent’s primary submission that the amended custody order was invalid. For the reasons that follow, I am satisfied that the Chief Examiner was correct when he concluded that he had power, in these circumstances, to amend the custody order.
In Chief Examiner v Brown,[16] Tate JA examined the contention that the Chief Examiner has implied power to revoke a direction made pursuant to s 43 of the Act. That section restricts the publication of evidence. It confers the power upon the Chief Examiner to make non-publication orders and to create exceptions. An aspect of the inquiry in that case was whether evidence could be released by rescission of a direction given by the Chief Examiner that information must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies. That is not the issue here, but the reasoning of the Court of Appeal is instructive for the issue I must resolve.
[16][2013] VSCA 167, [70] and [72].
Tate JA first examined the reasoning of Coghlan J in E v Chief Examiner.[17] The Chief Examiner had rescinded a non-publication order so that evidence could be used in prosecuting an offence. His Honour, in upholding an implied power to revoke a direction made pursuant to s 43, held that a clear purpose of the Act was to make evidence obtained under the Act available for the use of the prosecution. Coghlan J relied on Morris J’s statements in James v Office of the Chief Examiner and the DPP[18] to the effect that while the procedure under s 43(4) and (5) amounts to one means by which evidence obtained through the use of coercive powers can be disclosed in a prosecution, it is not the only means. Another means was to rescind the s 43(1) direction. In James, the Chief Examiner had rescinded his earlier non-publication direction in circumstances in which certain persons were about to face a committal hearing before a magistrate on serious charges thus permitting Mr James to be a witness.
[17][2010] VSC 353, [16].
[18][2006] VSC 384.
In identifying the power to rescind a direction, Morris J relied on s 41A of the Interpretation of Legislation Act. Tate JA said of this reasoning:[19]
While his Honour acknowledged the existence of the power to create exceptions, there was no indication that he considered this could be used to provide the information given under compulsion for the purpose of prosecution. Rather, he considered that the evidence might be made available to the prosecution because the prosecution may be able to make use of the mechanism under sub-ss (4) and (5) and, in any event, the evidence could be released by the rescission of the direction. With respect to his Honour, that conclusion must surely be correct. It would be anomalous if a non-publication order could not be rescinded where, for example, circumstances changed so as to reveal that there was no longer (or had never been) any threat to the safety or reputation of a witness. But that is wholly different from the proposition that, while a non-publication order is in force, it can contain exceptions which permit the release of evidence given confidentially so as to be included in a prosecution brief and thereby made available to the defence. Where the purpose of the order is to protect the safety or reputation of a witness, without which those interests might be prejudiced, more is needed to support the view that the order may include a qualification to the effect that, despite the ostensible confidentiality of the evidence, it can nevertheless be released to a person charged with an offence although the evidence given by the witness is potentially adverse to the defendant’s interests.
Her Honour continued:[20]
Insofar as Coghlan J in E v Chief Examiner relied on the reasoning in James to support the view that the Chief Examiner, who has the power to make a non-publication order under s 43(1), also has the implied power to rescind it, I consider that he was correct.
[19]The Chief Examiner v Brown (a pseudonym) [2013] VSCA 167, [70].
[20]Ibid, [72].
These decisions recognise that the Chief Examiner does have an implied power to revoke a s 43(1) direction and I would, by parity of reasoning, hold that the Chief Examiner has an implied power to amend, alter, or vary a custody order.
The respondent’s primary contention that the member who originally applied for the custody order must always be the receiving member under the custody order when executed cannot be accepted. That is not an express requirement of s 18 of the Act. The statutory scheme, when considered as a whole, does not require that correspondence of identities. Here, the applicant (Pucar) for the custody order was the nominated member and later, the applicant for the amendment (McLeod-Dryden) was to become the nominated member. It would be anomalous if a custody order could not be amended on the application of another member of the police force where, as here, circumstances changed so that the applicant member was no longer fit for duties and that was the only relevant change in circumstance.
Rejecting the respondent’s contention does not involve denying the statutory intention that was described by the respondent’s counsel as the ‘closed loop.’ Accepting for the purposes of the argument that the confidentiality and secrecy objectives of the statutory scheme, which were not disputed by the applicant and which are described in detail in the cases cited above, are what is being referred to by the ‘closed loop’ appellation, a power to amend a custody order in the manner in which it was done and in the circumstances that prevailed does not affect the safety or reputation of the examinee. I am satisfied that the confidentiality and secrecy objectives of the statutory scheme are not inconsistent with the power to amend exercised by the Chief Examiner.
It needs to be borne in mind that when the amendment application was made to the Chief Examiner, the only issue in contention was the inability of Pucar to execute the custody order. No other matter that relevantly affected the matters that were considered under s 15(4) of the Act on the original application by Pucar for the custody order was put in issue or needed to be put in issue for valid exercise of a power to amend the order to substitute the applicant member for the nominated receiving member. The application was heard by the Chief Examiner in private and the order as amended was served. At all times, s 20 confidentiality notices were in place constraining persons who were not otherwise bound to confidentiality by the Act.
In the circumstances as I have described them there is no vitiating or disabling factor to be discerned from the fact that the amended order was served after the respondent was released from the custody of the manager of the prison in which the respondent is held. None was suggested. The amended order was served before execution of it was, relevantly, completed. The respondent and his counsel were fully informed of the circumstances of the amendment of the custody order by the Chief Examiner before it was executed. In fact, the relevant execution of the order by transfer of custody from the Office of Corrections to McLeod-Dryden took place in the presence of the Chief Examiner, the respondent and his counsel. The fact that the respondent did not concede the validity of the process that was occurring and gave no instructions to put any submission to the Chief Examiner about it is of no consequence because its amendment was unimpeachable. Further, the application to amend was held in private as was the examination and the completion of the execution of the custody order. All of the necessary directions as to the persons who could be present were given. The amendment was prudent and practical. It clarified the obligations of the prison officers when custody of the examinee was transferred. Section 68 applied to prevent the Chief Examiner, an examiner, and a member of the police force from divulging information. Section 68 applied to Detective Inspector McLeod-Dryden just as it applied to Detective Senior Sergeant Pucar. The loop remained closed.
For these reasons, the amendment of the custody order that was made was within the power of the Chief Examiner and the applicant has satisfied me, beyond reasonable doubt, that the respondent, when acting in contempt of the Chief Examiner, was before the Chief Examiner in the custody of the authorised member Detective Inspector McLeod-Dryden on a valid custody order.
It is also necessary to afford proper scope to s 18(4) and 15(3) of the Act, which permit the Chief Examiner to determine the procedure for making an application for a custody order. In the present case the Chief Examiner plainly gave careful consideration to the procedures he adopted for amendment of the custody order. That consideration is evident on the evidence before the court, which shows the procedure that he followed and records the reasons that he pronounced. The procedures that the Chief Examiner determined were not inconsistent with the powers under s 18 of the Act in respect of custody orders. Further, he followed like procedures to those adopted when the original custody order was made. Those procedures were not impugned by the respondent. The amended order was signed and dated by the Chief Examiner and was in the prescribed form. The grounds of the amendment application and the Chief Examiner’s reasons for allowing the amendment were recorded on DVD. Further, the Chief Examiner gave the respondent the opportunity to make submissions about that procedure and the amended order made before it was executed. The Chief Examiner retained full control of the process of issuing, serving, amending, and executing the custody order.
In the light of my findings, in my view it is unnecessary to consider the application of s 20 of the Police Regulation Act1958. This section was never called into play other than to support the applicant’s contention that the Chief Examiner had power to amend the custody order, by virtue of s 41A of the Interpretation of Legislation Act. I do not find it necessary to fortify my conclusion about the existence of the power in the Chief Examiner to amend or vary a custody order to refer to or analyse the application of s 20 to a custody order. Because the order was validly amended, I need not determine whether there was, by reason of the applicability of s 20, any need for amendment. No issue arises about whether s 20 justified the execution by Detective Inspector McLeod-Dryden of a custody order directed to Detective Senior Sergeant Pucar because that did not occur. Although the proposition was put in written submission, I did not understand the applicant to be suggesting in oral submission that the section justified the execution by Detective Inspector McLeod-Dryden of the original order as if the amended order had never been made.
I will hear from counsel as to the further disposition of the application.
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