Re a former protected witness
[2006] VSC 291
•5 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
IN THE MATTER OF THE WITNESS PROTECTION ACT 1991
And
IN THE MATTER OF AN APPLICATION BY
CHIEF COMMISSIONER OF POLICE TO CANCEL
ENTRY IN REGISTER OF BIRTHS OF A FORMER
PROTECTED WITNESS.
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 1, 3 August, 20 October 2006 | |
DATE OF JUDGMENT: | 5 December 2006 | |
CASE MAY BE CITED AS: | Re a former protected witness | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 291 | |
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Criminal Law – Witness Protection Program – Application to cancel entry in register of births – notice of application to be given to witness.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Sanelli | Victorian Government Solicitor |
HIS HONOUR:
Before the Court is an application brought pursuant to s. 9(3) of the Witness Protection Act 1991 for the cancellation of an entry in the Register of Births consequent upon the termination of protection and assistance of a witness.
The legislation, as the name suggests, is intended to facilitate the security of persons who are, or have been, witnesses in criminal proceedings in Victoria or elsewhere in Australia.[1]
[1]Section 1.
The establishment and maintenance of this program is entrusted to the Chief Commissioner of Police[2] who “may take such action as … she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness”.[3] This includes applying for a document necessary to allow the witness or a family member to establish a new identity.[4]
[2]Section 3A.
[3]Section 3A(1).
[4]Section 3A(2).
It may be supposed that an essential step in establishing a new identity for a witness or family member is the making of a new entry in the Register of Births or the Register of Marriages or both, maintained under the Births, Deaths and Marriages Act 1996. The Act, therefore, provides that this may be done, but only by an order of the Court authorising a nominated police officer to make such an entry. Section 7, which empowers the Court to make an authorising order, provides that the power may be exercised when all of three requirements have been satisfied:
(1)the person named in the application as a witness is a participant or a recognised participant;
(2)the life or safety of the person or of a member of his or her family may be endangered as a result of the person being a witness; and
(3)the person is likely to comply with the memorandum of understanding that the person has entered into under s. 3B(2)(c) or under the provisions of a complementary witness protection law.
The first requirement, then, is that the witness is a participant, that is, a person who is included in the program.[5] A recognised participant is a person who is included in a complementary program other than the Victorian program.[6] The decision to include a witness in the Victorian program is one for the Chief Commissioner under s. 3B. By s. 3B(2) a witness may be included in the Victorian program if the Commissioner so decides and the person consents and the Chief Commissioner has entered into a memorandum of understanding with the witness under s. 5.
[5]See s. 3, definition of “participant”.
[6]See s. 3, definition “recognised participant”.
In the present case, the evidence shows that the witness had provided certain information implicating her ex-husband and an unsworn employee of Victoria Police in certain criminal activities. She was expected to give evidence against them. The ex-husband had a history of physical violence towards the witness and it was apprehended that he might take steps to prevent her giving evidence against him.
Accordingly, on 14 November 2001, the witness executed a memorandum of understanding pursuant to s. 5 and a consent to a police officer being authorised to make a new entry in the Register of Births. On 14 February 2002, by order made pursuant to s.6, Beach J authorised a named police officer to make a new entry in the Register. According to the memorandum of understanding, the Chief Commissioner was to relocate the witness and to provide her with a new identity. Clause 3(b) of the memorandum refers to the agreement of the Chief Commissioner to provide the witness with “documents necessary to allow the witness... to establish a new identity”. Clause 2 deals with these documents in greater detail. The witness is to receive the following identity documents in her new name –
(a) Birth Certificate;
(b) Tax File Number;
(c) Passport;
(d) Motor car Driver Licence;
(e) Bank Account;(f) Medicare Card.
The memorandum then sets out in 25 clauses, the agreements of the witness which are, for the most part administrative in nature and apparently designed to ensure that the fact that the person is a protected witness is not disclosed nor the terms upon which the protection and assistance has been granted. There are also provisions for the termination of the protection and assistance in certain circumstances.
On 22 January 2004 the witness was served with a notice entitled “Notice of Cessation of Protection and Assistance” purportedly given pursuant to s. 17(1). This notice is dated 3 December 2003.
The provisions of the Act for termination of assistance and protection are found in ss. 16 – 20. In considering these provisions, it must be borne in mind that the provision of a new identity is not the only form of assistance and protection available.
Termination of assistance and protection may be achieved upon the request of the witness herself pursuant to s. 16(1) or by the Chief Commissioner’s decision pursuant to s. 16(2). The circumstances which under the statute entitle the Chief Commissioner to decide to terminate are the following:
“(a)the person deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the program; or
(b)the person’s conduct or threatened conduct is, in the opinion of the Chief Commissioner, likely to threaten the security or compromise the integrity of the program; or
(c)the circumstances that gave rise for the need for protection and assistance for the person cease to exist –
and the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated.”
Section 17(1) requires the Chief Commissioner to notify the witness of the decision to terminate. The witness may then, within 28 days, apply to the Chief Commissioner for a review of her decision[7]. In the event that the Chief Commissioner confirms the decision, she must inform the person in writing and give reasons. Furthermore, she must advise the witness of her rights under s. 17(5). In such an event, the witness has three days to appeal to the Director, Police Integrity.[8] Where, as in the present case, the witness does not seek a review, the termination is effective 28 days after the witness receives the notification given under s. 17(1). The termination in this case, therefore, would be effective on or about 19 February 2004.
[7]Section 17(2).
[8]Section 17(5).
As I have mentioned, notice given under s. 17(1) dated 21 January 2004 is entitled “Notice of Cessation of Protection and Assistance” and is addressed to the witness by her former name. The notice is in these terms:
“I, Noel PERRY, Acting Deputy Commissioner of Police for Victoria, HEREBY GIVE YOU NOTICE that:
your conduct is, in the opinion of the Chief Commissioner, likely to threaten the security or compromise the integrity of the Victorian Witness Protection Program
and I HAVE DECIDED pursuant to Section 16(2) of the Witness Protection Act 1991 to terminate the protection and assistance provided to you under the Victorian Witness Protection Program.
TAKE NOTICE that unless within 28 days after receiving this Notice you apply to me in writing for a review of my decision the aforesaid protection and assistance shall cease forthwith at the end of the period of 28 days.”
Two things should be noticed about this notification. The title to the document is misleading. It should not be a notice of cessation of protection and assistance; it should be a notice of a decision to terminate protection and assistance. This is no mere verbal disconformity. A quick read of the heading might lead one to the conclusion that the termination of assistance was a fait accompli. Second, the grounds for the decision are expressed in terms of s. 16(2)(b); moreover, they speak of the witness’s conduct, not her threatened conduct; they do not include the further requirement of s. 16(2) that the Chief Commissioner is of opinion that, in the circumstances, the protection and assistance should be terminated.
The affidavit sworn 31 July 2006 in support of the present application sets out the basis for the apprehension of the Chief Commissioner that the conduct of the witness threatened the program. These are that the witness at some unspecified time or times worked as a prostitute in two named massage parlours and, further, that she resided at the home of the proprietor of one of those parlours. The deponent then continues:
“... such premises were considered highly inappropriate and expose the witness to risk of injury or death if contact was made by the witness with attending criminals.”
It therefore concerns the apprehended conduct of the witness in the future.
It is, perhaps, not the concern of the Court to examine the relevance of these facts to the reasons given for the decision of the Chief Commissioner. It is not necessary for me to imagine how it might be that a prostitute, in the circumstances, risks injury or death, or that a prostitute, with a new identity is at greater risk than with her former identity or, more importantly, how this conduct might threaten the security or compromise the integrity of the witness program itself.
Assuming, as is the case before the Court, that the terminated protection and assistance takes the form or includes the provision of a new identity, s. 19(1) provides that the former identity of the witness will be restored if the Chief Commissioner considers it appropriate to do so. The restoration is not an inevitable consequence of the termination. This provision authorises the Chief Commissioner to take such action as is necessary to restore the former identity. In addition, the Chief Commissioner may apply to the Court for an order under s. 9 cancelling the new entry in the Register of Births. This is the application presently before the Court.
I return to s. 19. The procedure for restoration of the former identity of the witness contains certain safeguards for the witness which appear to be modelled on those in s. 17. The terminology of the section is not altogether consistent, but what appears to be contemplated is that the Chief Commissioner must give notice to the witness under s. 19(2) of the decision to restore the former identity. The witness may then apply in writing to the Chief Commissioner for a review of this decision. Although no time for this application for review is prescribed, it may have been intended by Parliament that this be within 28 days of receiving notice of the decision.[9] The Chief Commissioner must then give the witness an opportunity to state her case.[10] It will be noted that this is a departure from the comparable procedure in s. 17 and provides an added protection for the witness. If the Chief Commissioner confirms the decision she must give notice of this in writing to the witness with reasons and advise the witness of her right of appeal.[11] This also is a right of appeal within three days to the Director, Police Integrity.[12] The witness is obliged by s. 19(8) to return all new identity documents within 14 days after notice in writing to do this. This would presumably be given after the Commissioner’s determination to restore the former identity of the witness has become effective.
[9]See s. 20(1)(b).
[10]Section 19(4).
[11]Section 19(5).
[12]Section 19(6).
When this application first came before me, I raised certain concerns about the circumstances which led to the application and about the matters I should have regard to in exercising the discretion conferred by s. 9. The only statutory guidance is that contained in s. 9(3), which is that I must be satisfied that the witness is no longer a participant in the program. In the present case there is no doubt that this requirement has been satisfied. I inquired of Mr Sanelli, who appeared for the applicant, whether the witness had notice of this application. He said that this would be done by serving the order when it was made. Later, he said that, in any event, the witness had consented to the order sought. This came as a surprise, given the material which had already been filed and the submissions which he had presented. The attitude of the witness herself must be a very material matter.
The matter was then adjourned to enable this consent to be brought forward. The deponent then swore a second affidavit on 3 August 2006. He exhibited a photocopy of a consent document dated 1 April 2004. The signature on this document which appears to be in the former name of the witness, does not at all appear to resemble that on the memorandum of understanding or that on the consent dated 21 November 2001. I place, however, little weight on this discrepancy because of the passage of 17 months and of the later evidence that the witness was suffering from the effects of drug use and a psychiatric condition.
The terms of the consent dated 1 April 2004 are, nevertheless, somewhat surprising given that the protection and assistance had been terminated on or about 19 February 2004. The terms are as follows:
“(a)I, [former identity name], hereby request that the protection and assistance provided to me under the Victorian Witness Protection Program be terminated and I consent to an application being made to the Supreme Court for an order directing the Registrar of Births Deaths and Marriages to cancel the entry of [new identity name] in the Register, maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996.”
The deponent also deposed that on the same day, 1 April 2004, a senior constable attached to the Witness Security Unit met with the witness. The police officer then returned to the witness “her former identity documents as protection and assistance to her under the Witness Protection Program had been terminated”. The witness thereafter requested [the police officer] to take steps to restore the witness’s former identity.
There is no evidence of the decision of the Chief Commissioner to restore the former identity of the witness nor that any of the procedures set out in s. 19 had been followed.
As things appeared, therefore, the witness still had the documents of her new identity and has had returned to her the documents of her former identity. I suspect, however, that the documents of her new identity may have been retrieved.
I then informed the solicitor for the applicant that I would require that notice of this application be given to the witness so that, if she were minded, she could tell me whether she was content that the entry in the Register of Births of her new identity might be cancelled.
A concern of the Court in an application under s. 9 must be for the wellbeing and safety of the witness. When a person agrees to give evidence in court in circumstances where there is a concern for her safety or welfare, the legislature has put in place statutory procedures to protect the witness. And, if I may say so, it is right and proper that this be done. Such a witness might have any of a number of motives for giving evidence, but the result is that information is provided to the police and evidence given in a court for the prosecution of a wrongdoer. For this, the community of Victoria should be grateful and it should acknowledge that such a witness may be running a serious risk in so doing. Witnesses who are prepared to run that risk are brave indeed. When it is thought desirable for them to cast aside their own identity and to assume a new identity for fear for their safety and that of their family, they should not be lightly required to return to their old identity. It may be that those whom they fear will thereby be able to find them and to do them harm. It may be that, with the passage of years, their new identity has become comfortable for them. They have acquired new friends, associates, business interests and all manner of contact with government departments and instrumentalities under their new name. Doubtless there are, in a case such as the present, arrangements in place whereby the witness’s tax file number, passport, driver licence, bank accounts and Medicare records can be transferred from the new identity to the old identity. But is this what the witness wishes? Will the removal of the new identity expose the witness to risk? Is it reasonable to do this? What purpose will it serve? These are matters which would be addressed in the course of the s. 19 procedures. In this regard, I am mindful of the recent observation of the Court of Appeal about the need to give notice of an application where the order sought would impact upon the rights of a person.[13]
[13]Navarolli v DPP [2005] VSCA 323.
The involvement of the Court under s. 9 raises similar concerns. The effect of the making of the order sought is that the Register, once again, will show as current the former identity of the witness. This removes, in a formal way, the new identity, for it means that a person may no longer make a search or obtain a certificate under the new identity. It is a serious step to take and one which ought not be taken unless the implications and consequences have been explored and explained to the person whose interests are affected.
It will be a concern to the Court that the witness in this case also understands what is to happen – that her new identity is cancelled and that she must live her life in the future with the identity she had put aside in 2001. This is a real concern because it is often the case that the witness is fragile after a history of violence or under the threat of violence. It may be that the witness is a person with a history of criminality or of the abuse of alcohol or narcotic substances. It may be that the witness is for some reason easily led, especially by those in a position of authority. These considerations, where they are present, mean that the witness is particularly vulnerable to persuasion or other pressure and the Court should exert itself to be satisfied that the legitimate interests of the witness are protected and that there is good reason for making the orders sought under s. 9. When I enquired about these good reasons, Mr Sanelli told me of the concern of the Chief Commissioner for the integrity of the witness protection program. I wondered how, if there is such a risk, it could be diminished by the removal of this witness’s new identity.
Then, he submitted that the witness might abuse the entries in the Register of Births. She has, after all, two entries and she might use these for some fraudulent purpose. I was not persuaded that this is a serious concern. It would be an offence for her to use the previous entry so long as the new entry remains current.[14] I would suppose, moreover, that the Registrar has in place some administrative procedure to prevent this. In any event, there is no basis for me to conclude that such an apprehension is well-founded.
[14]Section 11(1).
It was for these reasons that I indicated that if the application is to go ahead, the witness should be served with the documents filed in support so that she might be heard if she was so minded.
The matter returned before me on 20 October 2006 on which occasion Mr Sanelli raised the further concerns of the applicant that the delivery to the witness of the material filed in support of the application might, in the circumstances of this case, have the effect that the fact that the witness had been a protected witness and the terms of the grant of protection and assistance might fall into the hands of those who might do harm to the witness. I do not think it appropriate in these reasons to set out these circumstances. He made particular reference to the concern of the legislation that the terms of the memorandum of understanding be kept confidential.[15] I directed that these new facts be placed on affidavit and this was done by a third affidavit sworn 3 November 2006. I mention in passing that it is regrettable that the applicant failed to place the material contained in the second and third affidavits before the Court at the outset. An application such as this should not be treated as a mere formality.
[15]Section 10(3).
I therefore adopted the course of directing that the documents be delivered to a counsellor who was giving assistance to the witness with a request that the counsellor explain to the witness their content and effect and that she is entitled to attend upon the hearing of the application and present such material and argument in opposition to the cancellation of the new entry which had been made in 2001 upon the order of Beach J. The counsellor was then requested to return the documents to the applicant so that they might be kept confidential.
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