Re Major Crime (Investigative Powers) Act 2004 No 6

[2007] VSC 125

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

M. C. (IP) of 2006 No. 6

IN THE MATTER of Major Crime (Investigative Powers) Act 2004

and

IN THE MATTER of an application for warrants for arrest

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2007
DATE OF RULING:	4 May 2007
CASE MAY BE CITED AS:	Major Crime (Investigative Powers) Act 2004 No. 6
MEDIUM NEUTRAL CITATION:	[2007] VSC 125

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Criminal Law – Ruling – Major Crime (Investigative Powers) Act 2004 – Application for warrants for arrest – Application granted

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This is an edited version of the Ruling for publication purposes

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J. Pavlou	Office of the Chief Examiner – Victoria Police

HIS HONOUR:

1. On 2 April 2007, an application was made on behalf of the Office of Chief Examiner for two warrants for arrest to be issued under section 46(1) of the Major Crime (Investigative Powers) Act 2004 (“the Act”).  The application was made relative to the non-compliance with summons issued consequent upon the making of Coercive Powers Order No. 6. by Coldrey J on 2 November 2006. Reliance was placed on affidavits in support dated 30 March 2007 of a Detective Inspector attached to the Office of Chief Examiner.  I decided to make orders for the issue of the warrants. In the course of hearing the application, I decided that this and all comparable future applications to the court should be made in open court. These are the reasons for those decisions.

1. Without hearing submissions, I directed that the application be heard in open court.  In so doing, I made reference to the reasons for decision of Debelle J in Advertiser News Weekend Publishing Company Pty Ltd v X & Anor [2006] SASC 363. The respondent in that case was alleged to have failed to appear at an examination before an examiner of the Australian Crime Commission after having been summonsed, thereby breaching s 30 of the Australian Crime Commission Act 2003 (Cth) (“the ACC Act”). The applicant company appealed the order of a magistrate who had declined to vary a suppression order to allow the applicant to publish the nature of the charge with which the defendant was charged. The applicant submitted that the magistrate had erred in holding that there was no public interest in the publication of the fact that an unknown person had been charged with failing to comply with a summons for examination. Debelle J upheld the appeal, concluding that there was no provision in the ACC Act which prohibited the disclosure of the fact that a person had been charged under s 30 of the ACC Act, or which required that the hearing of the proceedings in which a person was so charged should not be held in open court. He said that the public had an interest in knowing whether persons were to be held accountable for failing to comply with such a summons. I repeat that I did not have the benefit of any submissions. However, the terms of the comparable provisions of the Act and the ACC Act are such that I am disposed to agree with the conclusions of Debelle J., at least until the position is fully argued. It is clear from s. 5(8) of the Act that that the initial application for a coercive powers order must be held in closed court. I contemplate that all future applications, other than the initial application, ought to be held in open court. There may well then be an application for the closing of the court contemplated by sections 18 and 19 of the Supreme Court Act 1986.

1. I decided to grant the application for the issue of two warrants for arrest.  On 15 March 2007 Justice Coldrey issued two witness summonses to require the attendance of  two men at an examination before the Chief Examiner .  The witness summons as to one man required his attendance at an examination on 28 March 2007 and the witness summons as to the other man required his attendance at an examination on 29 March 2007.  It appeared from the affidavits filed in support of the applications that both men had been duly served with a witness summons, confidentiality notice and notice in respect of legal representation on a date in advance of the date of their respective examinations before the Chief Examiner, that, at the time of service, the contents of the documents were explained to them, conduct money was offered, and both were encouraged to seek legal advice.

1. Upon service of the documents, one man accepted the conduct money but indicated to the police officer who served him that he was not prepared to attend the examination, and the other man refused to accept the conduct money and gave no indication as to whether he would attend the examination.  On the days fixed for their respective examinations, both men failed to appear before the Chief Examiner.  In subsequent conversations between the two men and police on the day that they were due to appear before the Chief Examiner, the two men confirmed that they did not propose to attend before the Chief Examiner.

1. Section 46(1) of the Act provides:

“(1)Where, on application by a member of the police force, the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe-

(a)that a person in relation to whom a witness summons has been issued under Part 2 –

(i) has absconded or is likely to abscond;

or

(ii)      is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or

(b)that a person has committed an offence under section 37(1) or is likely to do so –

the Court may issue a warrant for the arrest of the person.

…

(5)Where a person is arrested under the warrant, he or she must be brought, as soon as practicable, before the Supreme Court and the Court may –

(a)admit the person to bail, with any security that the Court thinks fit, on any conditions that the Court thinks necessary to ensure the appearance of the person as a witness before the Chief Examiner…”

1. Section 37(1) provides that:

“(1)A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse –

(a)       fail to attend as required by the summons; or

(b)fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

…

(3)A person who contravenes sub-section (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

…”

1. The basis upon which both applications were made before this Court was that each of the two men committed an offence pursuant to s 37(1)(a) of the Act by failing to attend an examination as required by witness summons issued by Justice Coldrey on 15 March 2007. I concluded that the requirements under s 46(1)(b) had been satisfied

and accordingly I made the order that a warrant for arrest be issued with respect to both men.

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CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for Ruling of Teague J of the Supreme Court of Victoria delivered on 4 May 2007.

DATED this 4th day of May 2007.

Associate