R v AX
[2009] VSC 153
•22 April 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9635 of 2008
| THE QUEEN (on the application of the Chief Examiner pursuant to s 49 of the Major Crimes (Investigative Powers) Act 2004, a Certificate of Charge dated 7 November 2008 and the order of the Honourable Justice Lasry made on 7 November 2008 in proceeding No. 12 of 2008. | Applicant |
| v | |
| AX | Respondent |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 13 November and 15 December 2008; 21, 28 January, 4, 26 February and 20 March 2009 | |
DATE OF JUDGMENT: | 22 April 2009 | |
CASE MAY BE CITED AS: | R v AX | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 153 | |
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CRIMINAL – Proceedings pursuant to Major Crime (Investigative Powers) Act 2004 – Contempt proceedings under s.49(1)(b) – can contempt provisions apply to a person to whom a s.18 order applies – drafting anomaly in legislation – contempt provisions do not apply – originating motion dismissed – costs awarded to respondent.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr OP Holdenson QC | Office of the Chief Examiner |
| For the Respondent | Mr P Faris QC | Lethbridges |
HIS HONOUR:
On 7 November 2008, AX appeared before the Chief Examiner following an order made pursuant to s 18 of the Major Crime (Investigative Powers) Act 2004. Sub‑s (2) of that section provides:
If a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court of 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.
The order pursuant to s 18 had been made by the Chief Examiner on 14 October 2008. The custody order in its terms gave notice to the respondent that he was to “give evidence before the Chief Commissioner in relation to ….. “. A particular investigative subject matter was then identified.
On 7 November 2008 the respondent was before the Chief Examiner and was represented by counsel. When called upon by the Chief Examiner to swear an oath with a view to him giving evidence, AX declined to do so.
Pursuant to s 49(1)(b) of the Act, the Chief Examiner later provided a certificate to the effect that the respondent refused to be sworn or make an affirmation. Section 49(1)(b) of the Act provides that a person attending before the Chief Examiner in answer to a witness summons is guilty of contempt of the Chief Examiner if the person “being called or examined as a witness at an examination, refuses to be sworn or make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject matter of the examination;”
The Chief Examiner certified that he was satisfied there was evidence that the witness, being the respondent, was in contempt of the Chief Examiner as having contravened s 49(1)(b) of the Act.
On 7 November 2008 the matter was brought on before me and I made the following orders:
1.Pursuant to s 18(1)(a) of the Supreme Court Act 1986 (Vic), the hearing of this application be heard in closed court.
2.Only the parties, their legal representatives and court staff remain in court during the hearing of this application.
3.The proceeding be adjourned for further mention before me on Thursday, 13 November 2008, at 9:30am.
4.Subject to further order of the Court, the matter proceed in accordance with Rule 75.05 of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005.
5.The Chief Examiner file and serve such further material as he may rely upon, on or before 4:30pm on Wednesday, 12 November 2008.
6.Service upon the Respondent be effected by delivery of any such papers to Lethbridges Barristers and Solicitors, 1st Floor, 550 Lonsdale Street, Melbourne 3000.
7.Liberty to apply is reserved.
8.Costs are reserved.
9.Publication of any report of this hearing is prohibited pursuant to ss 18 and 19 of the Supreme Court Act 1986 until further order.
10.This order be signed by the Judge pursuant to Rule 60.04 of the Supreme Court (General Civil Procedure) Rules 2005.
On 11 November 2008 an originating motion was issued pursuant to my order and which sought an order for the punishment of the respondent for contempt. The contempt specified in the originating motion was, in part[1], in the following terms:
[1]Some detail which has no relevance issue has been deleted from the recitation of the originating motion.
1.On Wednesday 13 August 2008, the Honourable Justice Cummons [sic] made a coercive powers orders under the Major Crime (Investigative Powers) Act 2004 in respect of….
2.On Tuesday 14 October 2008, the Chief Examiner made a custody order under section 18 of the Major Crime (Investigative Powers) Act 2004, requiring that the respondent be delivered into the custody of Detective Senior Sergeant Anthony Silva to be brought before the Chief Examiner on Friday 7 November 2008 to give evidence in relation to……
3.The examination hearing took place on Friday 7 November 2008 in Court Room G5 of the County Court building.
4.At the examination hearing, the Respondent was required by the Chief Examiner to take an oath or affirmation pursuant to section 36(2)(a) of the Major Crime (Investigative Powers) Act 2004. The Respondent repeatedly refused to comply with the requirement.
5.Pursuant to section 49(b) of the Major Crime (Investigative Powers) Act 2004, the refusal of the Respondent to comply with the Chief Examiner’s requirement to take an oath or affirmation constitutes a contempt of the Chief Examiner.
6.Pursuant to section 49(10)(a) of the Major Crime (Investigative Powers) Act 2004, a contempt of the Chief Examiner is to be dealt with by the Supreme Court as if the contempt were a contempt of an inferior court.
On 20 March 2009, and in submissions filed prior to that date, the applicant expressly indicated that he wished the proceedings not continue. In essence, the Chief Examiner instructed senior counsel that the Major Crimes (Investigative Powers) Act 2004 contained an anomaly which had a particular consequence for this application. As was put in the submissions on behalf of the applicant the “critical issue” arising from the statutory construction of s 49 of the Act is whether or not contempt provisions can apply to a person who is the subject of an order pursuant to s 18. Section 18 provides:
(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.
(3)If the application under subsection (2) is made to the Supreme Court, section 14(4), (5), (6), (7) and (11) 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).
(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
(b) must include a statement that if the person who is the subject of the application is under the age of 16 years at the date of issue of the order, the order is of no effect and the person is not required to attend the examination; and
(c) if the person is aged 16 years or over, has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place (as the case may be).
(6)If the Supreme Court makes an order on application under subsection (2), the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the order is made.
(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.
The applicant has come to the conclusion, based on legal advice he has been given, that s 49 has failed to provide adequately for the circumstances of a witness attending an examination pursuant to s 18 of the Act because s 49 appears only to apply to a person attending before the Chief Examiner in answer to a witness summons.
After hearing submissions on 20 March 2009 I ordered that the originating motion filed on 11 November 2008 be dismissed and counsel on behalf of the respondent made an application for costs. The costs concerned are the costs reserved on previous occasions when the matter was before the Court as well as the costs of the present hearing.
In support of the application for costs Mr Faris QC, who appeared on behalf of the respondent, submitted that the proceedings against AX were invalid simply because AX had never been served with a witness summons pursuant to either s 14(2)(a) of the Act or s 15(2)(a) of the Act. Mr Faris submits that a person brought before the Chief Examiner pursuant to s 18(2) of the Act is still required to be served with a summons. Therefore he submits that contrary to the submissions on behalf of the applicant, there is no need for any amendment to the Act and the only difficulty that confronted the Chief Examiner in these proceedings was that a witness summons was not served on the respondent. Since the applicant did not wish to proceed with the matter on the basis stated, that is not an issue I need to resolve and express no view about it.
So far as the question of costs are concerned, they are in the discretion of the Court pursuant to Order 75, r 14 of the Supreme Court (General Civil Procedure) Rules 2005.
This matter first came before me for mention on Friday, 7 November 2008, on the return of a certificate of charge brought by the Chief Examiner against AX under s 49 of the Major Crimes (Investigative Powers) Act 2004. Mr Kowalski of counsel, who appeared on behalf of AX, sought a period of time in order to obtain funding from Victoria Legal Aid to represent AX in relation to the further conduct of this proceeding. I therefore adjourned the matter until Thursday, 13 November 2008 for further mention. I also ordered that the Chief Examiner file and serve such further material as he may seek to rely on in this matter by 4:30pm on Wednesday, 12 November 2008. On 11 November 2008, the Office of the Chief Examiner filed and served an originating motion and affidavit in support pursuant to that order.
On 13 November 2008 Mr Kowalski again appeared on behalf of AX, and informed the Court that funding had been obtained in order to file an appearance in this matter, and to prepare and advise AX as to a course to be taken in response to the originating motion. He indicated that he would then be required to make a further application for funding depending on whether or not the matter proceeded as a plea. Mr Kowalski therefore sought an order that the respondent file an appearance within the time limited by the rules and that the matter be listed for mention again on 15 December 2008 at which time a course to be announced by the respondent. I indicated that if the matter was to proceed as a plea, there was no reason why it could not be heard that week.
On 15 December 2008 Mr Kowalski informed me that Mr Faris QC had been engaged. Mr Faris would not be available to proceed until early January. Mr Kowalski therefore requested that the matter be adjourned until late January. I agreed to adjourn the further hearing of the matter until 23 January 2009, and directed that any material sought to be relied on by the respondent be filed by 5:00pm on 19 January 2009 and that any material in response from the applicant be filed by 5:00pm on 21 January 2009. I also indicated that counsel should be in a position to proceed on 23 January 2009, whether it be by way of a plea or as a contested matter.
On 21 January 2009, the respondent’s solicitor requested an extension of time in which to file and serve the material sought to be relied on by the respondent, and a further adjournment of the hearing of the matter. The extension and/or adjournment was sought because Mr Faris QC was unable to attend on the scheduled Friday 23 January 2009. I indicated that I found the request for further adjournment unsatisfactory as the date of 23 January 2009 was fixed with Mr Faris’ convenience in mind. I then listed the matter for further mention on 28 January 2009. I amended my directions made 15 December 2008 and directed that the respondent file and serve any further material or an outline of submissions by 9:00am Tuesday 27 January 2009 and that any material in response be filed by the applicant by 9:00am Wednesday 28 January 2009.
On 28 January 2009 AX appeared by video link, this time unrepresented. Mr Moore of Victoria Legal Aid appeared as a friend of the court, explaining that an application for a grant of aid had not been made for an appearance at a plea or a trial on that day, rather an application had been made for special funding as a result of what the respondent’s solicitors considered to be novel applications of law stemming from the Victorian Charter of Human Rights. This situation left AX without legal representation at a hearing which was to turn on legal points. I was not prepared to proceed with the matter whilst AX was unrepresented. I adjourned the matter for a further hearing on Wednesday 4 February 2009.
By 4 February 2009, the issue of Legal Aid funding was resolved and Mr Faris QC appeared for AX. It appeared that detailed written submissions were required due to the complexity and number of issues to be argued. I listed the matter for a further mention on Wednesday 18 March at 9:30am. I directed that the respondent file and serve any further submissions by 5:00pm Monday 23 February 2009 and that any material in response be filed by the applicant by 5:00pm Tuesday 10 March 2009. I further directed that any reply to the applicant’s response was to be in writing and filed and served by the respondent by 5:00pm Monday 16 March 2009.
On 26 February 2009 the applicant instigated a mention to draw the Court’s attention to the “critical issue” referred to at paragraph 8 above. Mr Faris QC disputed that it was a drafting anomaly and indicated his intention to argue that the proceedings were thereby invalidated. I listed the matter for further hearing on Friday 20 March at 10:30am indicating to counsel that the preliminary point and consequential issues should all be dealt with at that hearing. I directed that the respondent file submissions by 9:00am on Tuesday 10 March 2009 and that the applicant file submissions in response by Monday 16 March 2009. I further directed that counsel for AX were at liberty to file any reply. At that hearing I suspended the other orders until further order. I have already described the proceedings on 20 March 2009 when the originating motion of 11 November 2008 was dismissed.
The applicant, having commenced the proceedings, has now brought them to an end in the circumstances I have described without the merits of the application being determined. In these circumstances, and notwithstanding the submissions of Mr Holdenson QC, I see no reason not to follow the usual course of costs following the event. I will order that the applicant pay the respondent’s costs of this application. I will hear the parties as to the required detail of those orders.
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