HUMAN RIGHTS – Right not to be compelled to testify against oneself or to confess guilt – Right to a fair hearing – Privilege against self-incrimination – Use of evidence derived from compelled testimony - Derivative use immunity – Whether derivative use immunity part of right against self-incrimination – Whether derivative use immunity part of right not to be compelled to testify against oneself or to confess guilt and right to a fair hearing.
STATUTORY INTERPRETATION - Major Crime (Investigative Powers) Act 2004 ss 9(2)(g), 39(1) – Charter of Human Rights and Responsibilities 2006 ss 7(2), 24(1), 25(2)(k), 32 – Principles of statutory construction - Whether limitation on right demonstrably justified in a free and democratic society - Whether right can be interpreted consistently with the purpose of the Major Crime (Investigative Powers) Act 2004.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms J Davidson
Mr S Ward, Acting Solicitor for Public Prosecutions
For the Intervener
Ms K Walker
Victorian Human Rights and Equal Opportunity Commission
HER HONOUR:
This is an application under s 10(1)(b) of the Major Crime (Investigative Powers Act)2004 (‘the Act’) to vary a coercive powers order made by a judge of the Trial Division on 20 October 2008 pursuant to s 5(1) of the Act. His Honour made the coercive powers order subject to the following condition: that any person who has been charged with any offence linked to the organised crime offence the subject of the coercive powers order will not be summonsed to give evidence at an examination until resolution of the issue with respect to s 25(2)(k) of the Charterof Human Rights and Responsibilities Act2006 (‘the Charter’). The applicant seeks to vary the coercive powers order so as to remove that condition.
It is unnecessary to refer to the specific details of the organised crime offence the subject of the coercive powers order, or to the persons affected by it. Indeed, in imposing the condition, the judge indicated that it would be preferable for the issue to be resolved as a matter of general principle rather than by reference to the specific crime the subject of the order. Whilst the applicant filed affidavit materials in support, including some reference to an individual case, it should be noted that much of the following analysis and discussion is in the abstract. The hearing before me proceeded in camera because…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Re Application under the Major Crime (Investigative Powers)...
Sign in free to access the full text
Details
AGLC
Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381
Case
[2009] VSC 381
Decision Date
CaseChat Overview and Summary
In the case of Re Application under the Major Crime (Investigative Powers) Act 2004, the respondents sought a review of the decision to admit evidence obtained through the compelled testimony of one respondent. The applicants argued that the evidence was obtained in breach of their rights under the Charter of Human Rights and Responsibilities 2006, specifically the right to not be compelled to incriminate oneself or confess guilt, the right to a fair hearing, and the privilege against self-incrimination. The issue before the court was whether derivative use immunity, which prevents the use of compelled testimony in subsequent proceedings, forms part of the right against self-incrimination and the right to a fair hearing.
The court examined the text and purpose of the Major Crime (Investigative Powers) Act 2004, along with relevant sections of the Charter of Human Rights and Responsibilities 2006. The court considered whether the limitation on the right to derivative use immunity could be demonstrably justified in a free and democratic society and whether the right could be interpreted in a manner consistent with the Act’s purpose. The court held that the right to derivative use immunity is an integral part of the right to not be compelled to incriminate oneself or confess guilt, and the right to a fair hearing. Consequently, the admission of the evidence derived from compelled testimony contravened the Charter.
The court concluded that the respondents' rights under the Charter were breached, and the evidence obtained through compelled testimony should not have been admitted. The court quashed the decision that allowed the evidence to be used and ordered the respondents to be given a fair opportunity to challenge the admissibility of the evidence in the proceedings. The final orders included the quashing of the decision and the direction that the respondents be provided with a fair opportunity to challenge the admissibility of the evidence.