Re Major Crime (Investigative Powers) Act 2004 No 9

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

M.C. (IP) of 2007 No. 9

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:	4 April 2007
DATE OF RULING:	4 May 2007
CASE MAY BE CITED AS:	Major Crime (Investigative Powers) Act 2004 No. 9
MEDIUM NEUTRAL CITATION:	[2007] VSC 128

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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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This is an edited version of the Ruling for publication purposes

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

HIS HONOUR:

This is the ninth application made to this Court for a coercive powers order under the Major Crime Investigative Powers Act 2004 (“the Act”). The application is supported by an affidavit sworn by a Detective Inspector attached to the Office of Chief Examiner.

The application outlined the particulars of the organised crime offence as being the assaulting and non-fatal shooting of a man at his home, allegedly as a consequence of his non-payment of substantial debts in trafficking illegal drugs, manufactured by those who shot or arranged for the man to be shot. The affidavit in support of this application provides factual information relating to police investigations undertaken into large-scale manufacturing and trafficking of illegal drugs and into the shooting of the victim. Initial police investigations identified numerous persons as being involved in such manufacturing and trafficking and resulted in some persons being charged with drug-related offences. Some of those persons were identified in subsequent investigations as being involved in the shooting of the victim.

The affidavit records the belief that the shooting of the victim and the large-scale manufacturing and trafficking of drugs of dependence are inextricably connected, and the basis for that belief. The victim, through his involvement in trafficking, had apparently incurred substantial debts to those persons who supplied him with drugs. Failure to repay his debts had led to his being threatened and shot. The message intended to be conveyed to the victim and others by the shooting was that non-payment would not be tolerated. It was on this basis that it was submitted that the combination of the manufacturing and trafficking of drugs of dependence and the shooting of the victim constituted an “organised crime offence”. My initial impression of the particulars of the organised crime offence to which this application related was that it was somewhat narrow in its reference. That was because of the focus on a particular event, namely the shooting of the victim.

“Organised crime offence” is defined under Section 3 of the Act as:

“…[A]n 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 systematic and continuing criminal activity; and
           (d)      has a purpose of obtaining profit, gain, power or influence;”

To satisfy that requirement, the shooting of the victim had to be shown to be part of a more substantial criminal enterprise. An assault arising from the non-payment of a drug related debt would not normally be sufficient. Because the affidavit in support provided a reasonably detailed coverage of what appeared to be quite extensive drug-related activities that the victim and others were allegedly involved in, I was satisfied that the offence particularised in this application satisfied the requirements of “organised crime offence” as specified in the Act. I was also satisfied as to the other criteria prescribed by the Act, including as to the form of the application and the matters to be demonstrated in support of the application, so as to make a coercive powers order as contemplated by the Act. I indicated that I would again make the order restricted in that further application to the Court would be required for any witness or witnesses sought to be examined in relation to this matter.

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CERTIFICATE

I certify that this and the 1 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

The case was heard in the Supreme Court of Queensland, where the applicant sought an order under the Major Crime (Investigative Powers) Act 2004 to obtain information from a telecommunications provider. The applicant, an investigating officer, was pursuing a case involving suspected organised crime offences. The respondent, the telecommunications provider, challenged the validity of the application on the grounds that the definition of "organised crime offence" was ambiguous and unclear.

The court had to determine whether the definition of "organised crime offence" in the Act was sufficiently precise to support the granting of the coercive powers order. The court also had to examine whether the definition was consistent with the principles of statutory interpretation and whether the order was necessary for the investigation of serious crime. Additionally, the court needed to consider whether the respondent's privacy rights were adequately protected under the Act.

The court found that the definition of "organised crime offence" in the Act was sufficiently precise and consistent with the principles of statutory interpretation. The court emphasised the importance of the Act's purpose, which was to enable the investigation of serious crime, and held that the order was necessary to achieve this objective. The court also concluded that the respondent's privacy rights were adequately protected by the safeguards and oversight mechanisms in the Act. Consequently, the court granted the application and issued the coercive powers order.

In light of the court's decision, the applicant was authorised to obtain the requested information from the telecommunications provider. The court's ruling reinforced the importance of the Major Crime (Investigative Powers) Act in enabling the investigation of serious crime and protecting the privacy rights of individuals. The court's decision also provided clarity on the interpretation of the definition of "organised crime offence" in the Act, which will assist investigating officers in future applications for coercive powers orders.

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