R v Kivalu
[2017] ACTSC 33
•23 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kivalu |
Citation: | [2017] ACTSC 33 |
Hearing Date: | 23 January 2017 |
DecisionDate: | 23 January 2017 |
ReasonsDate: | 23 February 2017 |
Before: | Burns J |
Decision: | The application is refused. |
Catchwords: | Evidence – Prohibition of Publication of Evidence – s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – jurisdiction – definition of proceeding – “a legal or other action or proceeding” – administration of justice – potential prejudice –application refused. |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 110, 111 Fair Work Act 2009 (Cth) Legislation Act 2001 (ACT) |
Parties: | Construction, Forestry, Mining and Energy Union (Applicant) The Queen (Respondent) Halafihi Kivalu (Respondent) |
Representation: | Counsel Mr P Morrissey SC with Ms K Argiropoulos (Applicant) Mr J White SC (Respondent: Crown) No appearance (Respondent: Kivalu) |
| Solicitors Slater and Gordon (Applicant) ACT Director of Public Prosecutions (Respondent: Crown) No appearance (Respondent: Kivalu) | |
File Number: | SCC 225 of 2015 |
BURNS J:
On 10 March 2016, Halafihi Kivalu entered pleas of guilty to two counts of blackmail. At the time of those offences he was an organiser for the Construction, Forestry, Mining and Energy Union (the CFMEU).
On 25 May 2016, evidence was adduced on sentence and submissions were presented. The nature of the evidence adduced resulted in me making orders under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act) that part of the evidence adduced not be published. On 19 August 2016, I varied these orders to include an order prohibiting publication of the transcript of the sentence proceedings and any audio recording of those proceedings, as well as the proceedings before me on 19 August 2016.
By an application dated 5 December 2016, the CFMEU sought orders varying my orders under s 111 of the Act so as to permit it to have access to all of the evidence adduced on 25 May 2016, together with transcripts of the sentence proceedings. The grounds of the application were:
(a)the order which I made on 25 May 2016, and as varied 19 August 2016, is broad and prevents the CFMEU from having access to the entire transcript of the sentence proceedings as well as certain exhibits;
(b)Mr Kivalu is a respondent in civil penalty proceedings brought by the Director Fair Work Building Industry Inspectorate (DFWBII) against the CFMEU and five of its employees. The DFWBII had announced an intention to call Mr Kivalu as a witness in the applicant’s case, and provided an affidavit by Mr Kivalu. The DFWBII subsequently determined not to call Mr Kivalu as a witness. Mr Kivalu, however, remained a respondent and any sworn testimony by him would be hotly disputed by the CFMEU, and as such his credibility and the reliability of his evidence would be critical issues in the proceedings. The material sought would assist the CFMEU and its employees in their defence; and
(c)in recent Federal Court proceedings before Flick J, Mr Kivalu was called by the DFWBII as a witness, and in cross examination he admitted that he had agreed to assist the DFWBII in relation to cases it was bringing against the CFMEU, and that he had avoided a jail sentence as a result.
The application was supported by an affidavit affirmed by Abbey Elizabeth Kendall, a solicitor retained by the CFMEU, on 5 December 2016. This affidavit referred to two proceedings involving the DFWBII, the CFMEU and Mr Kivalu in the Federal Court and Federal Circuit Court. One of those proceeding was heard in the Federal Court in September, October and November 2016 before Flick J. At the time that the affidavit was affirmed, the hearing had concluded and judgment was reserved. Mr Kivalu gave evidence in those proceedings on behalf of the DFWBII on 14 September 2016.
The second proceeding was commenced by the DFWBII on 9 December 2014 in the Federal Circuit Court and alleged 20 contraventions of the right of entry provisions in the Fair Work Act 2009 (Cth) against 6 individual respondents and the CFMEU. The alleged contraventions concerned the conduct of the individual respondents at three building sites in Canberra between 21 August 2013 and 11 March 2014. The proceedings were civil penalty proceedings, and if the contraventions were established by the DFWBII, the total maximum civil penalties that could be imposed upon the respondents in those proceedings was $1,296,000. A defence had been filed in which the CFMEU and the individual respondents, other than that Mr Kivalu, admitted to being present at the various building sites, but denied the conduct alleged. The proceedings were listed for trial in the Federal Circuit Court commencing 30 January 2017. Orders had been made requiring the evidence-in-chief of witnesses to be adduced by way of affidavit, with cross examination to be conducted orally in relation to contested issues. On 19 August 2016, the DFWBII filed and served an affidavit from Mr Kivalu, the second respondent in the proceedings. However, on 1 December 2016, the DFWBII informed the other respondents that it would not call Mr Kivalu as a witness. Nevertheless, Ms Kendall deposed, Mr Kivalu remained a respondent and may seek to make a case, either through evidence or through cross-examination or submissions, consistent with his affidavit. Ms Kendall further deposed that Mr Kivalu’s credibility and reliability were crucial issues in the proceedings.
The application by the CFMEU came before me on 12 December 2016. Mr P Morrisey SC with Ms K Argiropoulos appeared for the CFMEU, Ms M Jones appeared for the Crown and Ms Reid appeared for the Australian Federal Police (AFP). There was no appearance on behalf of Mr Kivalu. On that day the Crown raised a jurisdictional issue, being whether the Court could revisit the orders which it had made under s 111 of the Act, an issue whether the CFMEU had standing to seek the orders it sought and an issue in relation to service of the application on Mr Kivalu. I adjourned the proceedings for hearing on 23 January 2017 and gave directions about filing and service of affidavits prior to the hearing date. I made a substituted service order permitting the CFMEU to serve Mr Kivalu by leaving the relevant documents at a specified address in Dunlop in the Australian Capital Territory.
At the hearing of the application on 23 January 2017, I granted the CFMEU leave to file in Court an application that it be joined as a party to the proceedings in R v Kivalu SCC 225 of 2015. I initially heard submissions from the CFMEU and the Crown on the question of jurisdiction. It was the submission of the Crown that I was functus officio with regard to the proceedings in R v Kivalu, including any orders which I had made under s 111, and that any challenge to those orders could only be by way of an appeal. It submitted that there were no proceedings on foot in which I could make the orders requested by the CFMEU. I rejected the submission that I had no jurisdiction to make orders as sought by the CFMEU. I indicated at that time that I would give my reasons at a later time. The following are my reasons.
The following provisions of the Act are relevant:
110 Application—ch 8
This chapter applies to—
(a) a proceeding in the Supreme Court; or
(b) a proceeding in the Magistrates Court; or
(c) an inquest or inquiry under the Coroners Act 1997.
111 Prohibition of publication of evidence etc
(1) This section applies if a court considers that—
(a) the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b) in the interests of the administration of justice the names of any of the following people should not be published:
(i) a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2) The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a) the evidence or a stated part of the evidence; or
(b) a report of the evidence; or
(c) the name of the party or witness.
(3) The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
The term “proceeding” is defined in the Dictionary to the Act as follows:
proceeding—
(a) for this Act generally—see the Legislation Act, dictionary, part 1; and
(b) for chapter 2 (Evidence of children)—see section 5; and
(c) for division 4.2.3 (Sexual and violent offence proceedings— giving evidence by audiovisual link)—see section 40X; and
(d) for division 4.2.5 (Protection of counselling communications)–
–see section 54.Section 110 comes within Chapter 8 of the Act, such as that paragraph (a) of the definition of proceeding is relevant. That directs attention to Part 1 of the dictionary found in the Legislation Act 2001 (ACT) (the Legislation Act). The definition of proceeding found in Part 1 of the Dictionary to the Legislation Act is simply “a legal or other action or proceeding”. This provides little assistance in determining whether the legislative intention in s 111 of the Act was to deny the court the ability to make or vary an order under that provision after the proceedings had otherwise been dealt with by the court.
In my opinion, both a textual approach and a purposive approach to the interpretation of s 111 strongly suggest that the power to make or vary an order under s 111 extends beyond the time when the court would otherwise, and for other purposes, be considered functus officio. With regard to the text of s 111, it is true that, by virtue of s 110 of the Act, an order under s 111 may only be made, relevantly for present purposes, “in a proceeding in the Supreme Court”. But s 111(2) of the Act provides that the court has power to make an order “at any time during or after the hearing of the proceeding”. This suggests that the power given to the court to make orders under s 111 continues beyond the hearing of the proceedings.
A purposive approach to the interpretation of the section strongly supports this conclusion. The power given under s 111 is given for the purpose of facilitating and protecting the administration of justice. It is a power to be used sparingly and only where the making of an order in the interests of the administration of justice outweighs the public interest in open justice. Whether the publication of evidence is likely to prejudice the administration of justice will not always be apparent at the time that the evidence is given, or even during the course of the proceedings in which the evidence is given. Where it is apparent during the course of the proceedings that evidence is likely to prejudice the administration of justice it may be appropriate to make an order prohibiting publication of the evidence under s 111. Later events, however, may change that situation, such that the public interest in open justice may then considerably outweigh any potential prejudice to the administration of justice if the evidence were published; indeed, there may no longer be any likelihood that publication would prejudice the administration of justice. In my opinion, s 111 gives the Court the flexibility required to achieve the objects of the provision at any time, either before or after the hearing of the proceeding.
For these reasons I was satisfied that the power granted by s 111 extended beyond the conclusion of the sentencing process.
Having dealt with the jurisdiction argument, I then granted leave for the Commissioner of the AFP to appear in the proceedings and make submissions. It is unnecessary to make any further reference to the appearance by the Commissioner or to the submissions made on his behalf, because they were not relevant ultimately to the question of the standing of the CFMEU.
After hearing submissions from the CFMEU and the Crown, I determined that the applications made by the CFMEU should be refused on the grounds that it did not have sufficient standing or interest in the orders which I made under s 111 of the Act to seek review of those orders. The basis upon which the CFMEU claimed to have a sufficient interest to enable it to seek a review of my orders was its involvement in the proceedings in the Federal Circuit Court which were due to commence on 30 January 2017. It claimed that it had a sufficient interest because Mr Kivalu was also a party to those proceedings, and there was a possibility that he may seek to give evidence or make submissions in the course of those proceedings. The CFMEU submitted that this possibility was sufficient to give it standing to seek review of my orders so that it could obtain material used in, or concerning, the sentence proceedings in order to test Mr Kivalu’s credibility in the Federal Circuit Court proceedings. I did not accept that submission.
Mr Kivalu had filed documents in the Federal Circuit Court proceedings in which he admitted the breaches alleged by the DFWBII, and he had not filed any affidavits in his own interest in those proceedings. The only affidavit prepared by Mr Kivalu was prepared at the request of the DFWBII, which has now indicated that it will not call him to give evidence or rely upon his affidavit. The prospect of Mr Kivalu taking any active part in the Federal Circuit Court proceedings therefore appeared minimal. The interest claimed by the CFMEU in the orders which I made under s 111 of the Act was hypothetical, and depended upon an apparently unlikely event coming to pass. In that sense, it may be said that the applications by the CFMEU were premature.
Conclusion
For these reasons I determined that the CFMEU did not have standing to seek the orders that it sought, and I refused its applications.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 23 February 2017 |
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