Re Major Crime (Investigative Powers) Act 2004 No 7

[2006] VSC 440

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

M.C. (I.P.) of 2006 No. 7

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

and

IN THE MATTER of an application for a coercive powers order

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2006
DATE OF RULING:	16 November 2006
DATE OF REAONS:	17 November 2006
CASE MAY BE CITED AS:	Major Crime (Investigative Powers) Act 2004 No. 7
MEDIUM NEUTRAL CITATION:	[2006] VSC 440

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Criminal Law – Ruling - Major Crime (Investigative Powers) Act 2004 – Application for a coercive powers order – Definition of “organised crime offence” – Application granted

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

HIS HONOUR:

1. This is the seventh application made to this Court for a coercive powers order under the  Major Crime (Investigative Powers) Act (“the Act”). The application is supported by a lengthy affidavit sworn by the applicant, Detective Inspector Clive Rust.  The affidavit provides factual information as to series of events in 2002 and 2003.  That information is relied on as providing the grounds for the applicant having suspected that an organised crime offence had been committed.  The organised crime offence was a conspiracy between October 2002 and March 2003 at Port Philip prison to murder Lewis Moran.  Lewis Moran was a member of what I will refer to as family A.  The conspiracy was alleged to involve five people, three of whom were members of what I will refer to as family B.  In recent years, family A and family B have been the subject of considerable media attention in Victoria.  Lewis Moran was shot dead on 31 March 2004.  Subsequently, three men were charged with his murder.  The date on which Lewis Moran was shot is twelve months after the end of the period of the alleged conspiracy.  Further, the death is not an event in the recent past.  It occurred more than two and a half years ago.

1. I turn to the appropriate parts of sections 5, 8 and 3 of the Act:

1. Under section 5:

“(1)…a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

(2)…

(3)…

(4)An application under sub-section (1) must be supported by an affidavit of the applicant—

(a)stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and

(b)setting out the grounds on which the applicant holds that suspicion; and

(c)       setting out the reason why the use of coercive powers is sought.

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1. Under section 8:

“The Supreme Court may make a coercive powers order if satisfied—

(a)that there are reasonable grounds for the suspicion founding the application for the order; and

(b)      that it is in the public interest to make the order, having regard to—

(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and

(ii)the impact of the use of coercive powers on the rights of members of the community.”

1. Under section 3, “organised crime offence” is defined:

““organised crime offence" means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—

(a)       involves 2 or more offenders; and

(b)      involves substantial planning and organisation; and

(c)       forms part of systemic and continuing criminal activity; and

(d)      has a purpose of obtaining profit, gain, power or influence;”

1. When the matter came on for hearing ex parte before me, Ms Pavlou appeared for the applicant. I raised with her concerns that I had as to compliance with the above sections of the Act. The first concern was as to part (d) of the definition of “organised crime offence”. The information in the affidavit of the applicant tends to focus as to purpose on a perceived link between the conspiracy to murder Lewis Moran and an event in 1999 when a member of family B was apparently shot and injured by a member of family A. That shooting appears to have given rise to much antipathy on the part of members of family B to members of family A. It appeared to me that the affidavit gave scarce attention to other circumstances underlying the antipathy between the two families. Those circumstances included that some members of each of the two families had been engaged in drug trafficking in a significant way. From those circumstances, there were matters more obviously going to the obtaining of profit and influence than might have appeared to be the case where the focus was primarily on what might have been seen otherwise to have been a matter of mere personal antipathy. On reflection, I was satisfied that there was sufficient information provided in the affidavit.

1. The second concern was as to part (c) of the definition of “organised crime offence”. The concern was as to the two aspects of part (c), that describe the nature of the relevant criminal activity. It must be “systemic” and “continuing”. I found perplexing the use of “systemic” rather than “systematic” in the context of the definition of “organised crime”. It seemed to me that “systemic” is a word more commonly used in a medical or biological context. But, reference to the Oxford Dictionary sufficiently warrants the conclusion that, in this context, it ought not to be treated as meaning something different from “systematic” or “organised”. The use of “continuing” suggests contemporaneity. What was contemplated was the making of a coercive powers order to investigate events that occurred, or were alleged to have occurred, over three years ago. When I raised my concern with Ms Pavlou, she argued that the definition had to be seen in the context of sections 5 and 8. In short, the focus of the court under s.8(a) is on the reasonableness of the grounds of the suspicion of the applicant. The focus of the applicant is not confined to a present and continuing offence. It can extend to an organised crime offence “that has been, is being, or is likely to be committed, as the case requires”. In the circumstances, I am satisfied as to the matters that I am required to be satisfied as to under the Act.

1. I indicated to Ms Pavlou that I propose to continue to exercise a limited review of matters to be the subject of investigation by requiring that summonses to witness under the Act be the subject of further applications to the Court.

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