Reg v Chief Examiner
[2011] VSC 532
•21 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 4351
| REG | Plaintiff |
| v | |
| CHIEF EXAMINER | Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2011 | |
DATE OF JUDGMENT: | 21 October 2011 | |
CASE MAY BE CITED AS: | REG v Chief Examiner | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 532 | First Revision: 2 November 2011 |
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JUDICIAL REVIEW – Major Crime (Investigative Powers) Act 2004 (Vic) – Decisions to revoke a confidentiality notice given under s 20 and a non-publication direction made under s 43 - Jurisdictional error – Whether Chief Examiner failed to take into account a matter he was bound to consider.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Karapanagiotidis | Leanne Warren & Associates |
| For the Defendant | Mr A G Southall QC with Ms R Sharp | Office of the Chief Examiner |
HIS HONOUR:
Introduction
The plaintiff, REG, was summoned to appear before and then examined by the Chief Examiner (the defendant), a person appointed under the Major Crime (Investigative Powers) Act 2004 (Vic) (the Act) and vested with coercive examination powers to investigate organised crime offences.
The Chief Examiner issued a notice to the plaintiff under s 20 of the Act stating that the summons was confidential and that, without reasonable excuse for doing so, the plaintiff could not disclose its existence to any person. Additionally, the Chief Examiner made a direction under s 43 of the Act that the evidence given to him by the plaintiff under the coercive powers must not be published or communicated except in such manner or to such persons as the Chief Examiner specified.
The Chief Examiner was legally required to give a confidentiality notice and to make a non-publication direction if he was satisfied that failure to do so ‘would be reasonably expected to’[1] or ‘might’[2] prejudice the safety or reputation of any person. In each case, the Chief Examiner was satisfied that failure to give the notice or make the direction might prejudice the safety of the plaintiff or his family. Hence, in the circumstances, he was legally required to give the notice and make the direction.
[1]In the case of the summons: s 20(2) of the Act.
[2]In the case of the examination: s 43(2) of the Act.
After the plaintiff was examined and evidence was obtained from him, on 1 August 2011 the Chief Examiner revoked the confidentiality notice and the non-publication direction. The notice and direction were each revoked on the application of Victoria Police so that they may use the plaintiff’s evidence for the purpose of a prosecution against other persons. Those steps were taken despite the unchanged circumstance that, without the orders, the safety or reputation of the plaintiff and his family were or might be prejudiced.
The plaintiff seeks judicial review of the Chief Examiner’s decisions under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 and an order in the nature of certiorari setting aside the revocation of his earlier orders, thereby restoring the confidentiality notice and the non-publication direction.
Although the plaintiff’s amended originating motion sets out seven grounds on which relief is sought, those grounds essentially reduced to three:
(1)That, contrary to the requirements of natural justice, the Chief Examiner failed to recuse himself on the ground of apprehended bias;
(2)That the Chief Examiner exceeded his jurisdiction by misconstruing and misapplying the correct legal test for revocation of confidentiality notices and non-publication directions; and
(3)That the Chief Examiner failed to take into account relevant considerations he was legally bound to consider, and/or took into account irrelevant considerations he was legally bound to ignore.
The Chief Examiner contended that many of the plaintiff’s arguments under the third ground amounted to an impermissible attack on the merits of the decision under review. He also argued that the allegation of apprehended bias, upon close examination, was without any real foundation. In his submission the real point of contention was the second ground, focusing on the scope of the Chief Examiner’s power of revocation and the correct legal test for its exercise. I generally agree with the order of significance the Chief Examiner assigned to the arguments, at least insofar as they were initially argued before me.
However, in the course of argument attention was given to a significant feature of the non-publication direction which had not been alluded to by the Chief Examiner in his ruling nor had it been mentioned in any of the written submissions filed in this proceeding. That feature was this: one of the exceptions to the Chief Examiner’s direction prohibiting publication or communication of the plaintiff’s evidence provided –
except … by members of the Victoria Police ... for the purpose of a prosecution instituted as a result of an investigation carried out by Victoria Police into an organised crime.
On its face that exception appeared to allow the very thing Victoria Police sought to achieve by applying for revocation of the orders.
There is no dispute that the decision of the Chief Examiner is susceptible to judicial review by this Court. The most pertinent ground for review for present purposes is that of jurisdictional error. A jurisdictional error is one which results in the decision-maker exceeding the authority or powers given by the relevant statute.[3]
[3]Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, 351.
Examples of acting beyond jurisdiction by entertaining matters outside the limits of a decision-maker’s functions and powers include:
•Disregard of a matter that the relevant statute requires be taken into account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
•Misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.[4]
The different kinds of error are not mutually exclusive and can overlap so that the circumstances of a particular case may permit more than one characterisation of the error identified.[5]
[4]Kirk v Industrial Relations Commission of New South Wales [2010] 239 CLR 531, 574.
[5]Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, 351.
Whatever may be the true scope of the Chief Examiner’s powers to revoke a decision to issue a confidentiality notice or to make a non-publication direction, the essential issue to decide here is whether the Chief Examiner failed to have regard to the actual terms of the non-publication direction he made – in particular, the terms of the exception set out above - and, in doing so, failed to take into account a matter he was bound to consider in making his decisions. To address that question it is convenient to ask, first, what did the Chief Examiner take into account in deciding to revoke the orders and, second, what did the Act require him to consider?
What did the Chief Examiner take into account?
The plaintiff was examined by the Chief Examiner over two days. His evidence was recorded and transcribed. After the examination Victoria Police applied to the Chief Examiner to revoke the confidentiality notice and the non-publication direction. As mentioned, the application was made to enable the record of the plaintiff’s examination to be used as a witness proof so that he could be called by the prosecution to give evidence in the prosecution of other persons involved in the organised crime the subject of the investigation.
The application was originally refused because the plaintiff himself was still facing some charges connected with the incidents about which the other persons were to be prosecuted. The Chief Examiner reasoned that the revocation of his previous orders would, in the circumstances, have no utility because the plaintiff could lawfully refuse to provide evidence in relation to the events, in any criminal proceeding, exercising his privilege against self-incrimination. In addition to that reason the Chief Examiner acknowledged ‘…there were also issues as to the safety and reputation of the witness and his family’.
After the charges against the plaintiff were finally disposed of, Victoria Police renewed their application for the revocation of the confidentiality notice and the non-publication direction. In concluding that he should revoke the confidentiality arrangements the Chief Examiner formulated and applied the following principles:
(a)I have the power to revoke the s 43 direction by reason of s 43(1) of the Act.
(b)The power to revoke the confidentiality notice [s 20] comes from the implied common law power the subject of detailed consideration in my earlier ruling and referred to by Coghlan J[6] in his judgment particularly at paragraph 23.
(c)These powers are discretionary and must be exercised reasonably and consistently with the purpose of the Act.
(d)A clear purpose of the Act is to make relevant evidence obtained available for use in criminal prosecutions. The use of evidence obtained is not confined to the gathering of intelligence.
[6]Referring to his Honour’s decision in E v Chief Examiner [2010] VSC 353.
He accepted that the plaintiff was ‘genuinely fearful for himself and his family if he were required to give evidence in court proceedings as to the [relevant] events … ‘. I take this to mean that he accepted there was a genuine basis for the plaintiff’s fear. The plaintiff argued that, because the Chief Examiner was activated to issue the confidentiality notice and make the non-publication direction by a finding that, if he did not make such orders, the safety and reputation of the plaintiff and his family might be prejudiced, he could not revoke those arrangements without being satisfied that there had been a change in those circumstances. He rejected that argument.
Instead, he found that the evidence that the plaintiff was able to give as to the events which had occurred were highly probative and concerned serious criminal conduct which took place in the context of an organised crime offence the subject of the coercive powers order. Accordingly, he said –
I accept that [the plaintiff] has genuine concerns as to his safety and that of his family however in the circumstances of this case this relevant consideration must carry less weight than the countervailing consideration of the need for a relevant witness to give important evidence in relation to serious criminal offences.
In coming to a decision to revoke his earlier directives, the Chief Examiner made no mention of the fact that the exceptions to the non-publication direction, in effect, preserved the ability of Victoria Police to use the evidence obtained from the plaintiff for the purpose of a prosecution resulting from their investigation into the relevant organised crime. Not only was there no evidence of his consideration of the exception in his written ruling, but the terms of the exception were nowhere set out. In the circumstances, I find that the Chief Examiner did not take account of the full terms of the direction he was purporting to revoke.
What did the Act require the Chief Examiner to take into account?
In relation to the particular error of failing to take into account relevant material, Mason J (as he then was) enumerated these propositions in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[7] (‘Peko-Wallsend’):
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …
(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. …
(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision …
(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned ….[8]
[7][1986] 162 CLR 24.
[8]Ibid 39-41 (citations omitted).
The matters that must be taken into account by the Chief Examiner in revoking a confidentiality notice and a non-publication direction are not specified in the Act. They are not specified for the simple reason that the Act does not explicitly provide for any power of revocation those directives,[9] much less the grounds for exercising that power. The Act only expressly provides the power and grounds for the issue of a notice[10] and the making of a direction.[11] An implied power to revoke such notice and direction has been discussed in a series of decisions of this Court, namely, in respect of a –
(a)s 20 confidentiality notice, in AJH v Chief Examiner,[12] and a
(b)s 43 non-publication direction, in James v DPP[13] and E v Chief Examiner.[14]
[9]Unlike the express power for the Court to revoke a coercive powers order: s 12.
[10]Section 20.
[11]Section 43.
[12][2011] VSC 499.
[13][2006] VSC 384.
[14][2010] VSC 353.
It is fair to say that these decisions are not completely in harmony in relation to the limits upon the Chief Examiner’s powers to revoke each kind of decision. In this case neither party has argued that the Chief Examiner lacked power to revoke his own decisions, and I do not consider it necessary to express any view of my own on that subject. Nevertheless, the parties did disagree on the limits of that revocation power, in particular on the legal test for the exercise of that power.
Such power, if it exists, and the relevant factors for its exercise, are to be implied from the subject matter, scope and purpose of the Act in accordance with the above principles in Peko-Wallsend.
Scope and purpose of the Act
The relevant purpose of the Act is –
To provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences.[15]
[15]Section 1(a) of the Act.
An ‘organised crime offence’ is an indictable offence punishable by 10 years’ imprisonment or more, involving two or more offenders and substantial planning and organisation, forming part of a systemic and continuing criminal activity, and having a purpose of obtaining profit, gain, power or influence or of sexual gratification (where the victim is a child).[16]
[16]Section 3 of the Act.
The Act provides for the appointment of the Chief Examiner and other Examiners.[17] The power of the Chief Examiner to summon and examine persons to achieve the purposes of the Act is triggered by a Supreme Court judge making a ‘coercive powers order’ in respect of a specified organised crime offence.[18] Such an order is obtained on the application of a member of the police force.[19] The Act specifically provides for the revocation of coercive powers orders.[20]
[17]Part 3.
[18]Sections 4, 9(2)(a).
[19]Section 5.
[20]Section 12.
If a coercive powers order is in force the Chief Examiner may issue a witness summons to any person requiring that person to attend and be examined or produce documents.[21]
[21]Section 15.
It is an offence punishable by imprisonment of up to 5 years to fail, without reasonable excuse, to attend in answer to such a summons, to refuse or fail to answer a question or to knowingly give false or misleading evidence.[22] Privilege against self-incrimination is abrogated[23] although legal professional privilege is maintained.[24] An examination must take place in private and only limited persons are permitted to attend.[25]
[22]Sections 37 and 38.
[23]Section 39.
[24]Section 40.
[25]Section 35.
There is no explicit statement in the Act authorising the use of evidence or material, gathered under these coercive powers, for the purpose of any prosecution. To the extent that reference is made to use of the material for the purpose of a prosecution, it appears in the further provisions detailed below.
Part 6 of the Act has provisions for ‘information sharing’[26] and ‘secrecy’.[27] The Chief Commissioner of Police is permitted to share information derived under a coercive powers order with local and foreign law enforcement agencies (including state and federal police forces) and various government agencies in the circumstances described in s 67. Section 68 makes it an offence for the Chief Examiner and those involved in carrying out functions under the Act, or any member of police personnel, to make a record of, divulge or communicate information acquired in the performance of their functions under the Act. Specifically excepted from that offence is the recording or divulging of information … ‘in the case of a member of the police force, for the purpose of investigating or prosecuting an offence’.[28]
[26]Section 67.
[27]Section 68.
[28]Section 68(2).
Furthermore, none of the persons mentioned above can be required to divulge to a court any matter discovered through the performance of a function under the Act except, in the case of a member of the police force, when that person is a party to the relevant proceeding or when it is necessary for the purpose of a prosecution instituted as a result of an investigation carried out by the police force into an organised crime offence.[29]
[29]Section 68(3).
It may be noticed that, in these sections, the mention of information being used for a prosecution is not contained in any authorising provision but, rather, as the context in which what would otherwise be an offence under the Act, or a non-compliance with a court order, is said to be lawful.
It is against this background that I now come to the confidentiality order and the non-publication direction.
Under the heading, ‘Confidentiality of witness summons and orders’, s 20 provides:
(1)Subject to subsections (2) and (3), the Supreme Court or the Chief Examiner may give a person to whom a witness summons is issued under this Part or in respect of whom an order is made under section 18 or any person who executes an order under section 18 a written notice stating—
(a)that the summons or order is a confidential document; and
(b)that it is an offence to disclose to anyone else, except in the circumstances, if any, specified in the notice, the existence of the document or the subject-matter of the organised crime offence in relation to which the summons was issued or the order was made or any official matter connected with the summons or order, unless the person has a reasonable excuse.
(2)The Supreme Court or the Chief Examiner must give a notice under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice—
(a)the safety or reputation of a person; or
(b)the fair trial of a person who has been or may be charged with an offence; or
(c)the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made.
(3)The Supreme Court or the Chief Examiner may give a notice under subsection (1) if satisfied that failure to do so—
(a)might prejudice—
(i)the safety or reputation of a person; or
(ii)the fair trial of a person who has been or may be charged with an offence; or
(iii)the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or
(b)might otherwise be contrary to the public interest.
Section 20 also contains a number of provisions specifying when a notice given under subsection (1) ‘ceases to have effect’. In summary such a notice ceases to have effect if, after the conclusion of the police investigation into the organised crime offence, no evidence of an offence has been obtained or it has been decided not to commence criminal proceedings in which the evidence would be relevant; or, criminal proceedings have only been commenced for offences committed by only one person or, having been commenced against more than one person, no other persons will be prosecuted.[30] The notice also ceases to have effect if either the Supreme Court or the Chief Examiner is satisfied that the circumstances that led to the giving of the notice no longer apply or, otherwise, 5 years has passed since the giving of the notice.[31]
[30]Section 20(7).
[31]Section 20(8A),(8B) and (8C).
Turning attention to non-publication directions, under the heading ‘Restriction on publication of evidence’, s 43 provides:
(1)The Chief Examiner may direct that—
(a)any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(emphasis added).
It was by means of the underlined exception powers that the Chief Examiner permitted publication of the plaintiff’s evidence (amongst other things) for the purposes of a prosecution in the terms I have set out above.[32]
[32]See para [8].
Power to revoke s 20 notices and s 43 directions, and the factors to consider
There are three possible views of the revocation powers available to the Chief Examiner in relation to confidentiality notices made under s 20 and non-publication directions given under s 43, namely
(a)There is no implicit power to revoke;
(b)There is a power to revoke but only if there is a change in the activating circumstance (ie. potential prejudice to the safety or reputation of a person or to the fair trial of a person); or
(c)There is a general discretionary power to revoke which is unfettered.
Even assuming the widest power to revoke, the exception expressed in the non-publication direction appears to me to be highly relevant to the question whether any revocation should be ordered, especially where the stated justification for the grant of the revocation is to enable police to use evidence gathered during the examination for the purposes of a prosecution.
It was not argued or submitted before me that the exception contained in the non-publication order is too limited for the purposes of the prosecution for which the police want the plaintiff’s evidence. I made an inquiry during the course of submissions on that very question.
In my view, the terms of that exception are a highly relevant circumstance which the Chief Examiner was bound to take into account when considering whether the protection of the whole order should be revoked as was being sought. He was bound to consider it when regard is paid to the subject matter of the Act and the clear purpose of the mandatory provision for non-publication when witness safety is an issue. In an Act that otherwise erodes age-old rights of members of the community,[33] any provision that is evidently inserted as a safeguard against the impact of that erosion, such as s 43 in particular, ought to be paid careful respect. Such a precept is a logical corollary of the fundamental principle that statutory provisions which derogate from or affect longstanding common law rights are to be strictly construed.[34]
[33]See CR v Attorney-General (Vic) (2007) 173 A Crim R 343, 356 [51].
[34]As to which, ibid.
In my view, an essential way of respecting that provision is, at the very least, to ensure that any proposed abrogation of a protective non-publication direction is evaluated by assessing the proposed purpose for the revocation against the terms, purpose and effect of the existing prohibition. Such an analysis must, logically, begin with a consideration of the existing prohibition. This the Chief Examiner failed to do.
Had the terms of the exception been considered, the Chief Examiner may well have decided that the revocation that was sought was unnecessary, or that some other course such as modifying the scope of the exception was more appropriate. I make no comment about either of these courses; it is enough to observe that a consideration of the matter may have materially affected the decision.
Accordingly, the Chief Examiner fell into jurisdictional error by revoking the s 43 non-publication direction without considering its full terms. It is evident that the revocation of the s 20 confidentiality notice followed on logically from the revocation of the non-publication direction and that error in one infected the decision upon the other. In any event, for the reasons explained by Beach J in AJH v Chief Examiner[35] I consider that the argument for the existence of any implied power to revoke a confidentiality notice is much weaker than in relation to a non-publication direction.
[35][2011] VSC 499 [26]-[28].
What I have said thus far is sufficient to decide the application in favour of the plaintiff.
As I have already mentioned, in those circumstances I do not need to finally resolve whether, assuming a power of revocation exists, it is the wide, general power (for which the Chief Examiner contends) or whether the better view is that it is only a limited power. However, at least in deference to the arguments raised before me, I will make some brief observations.
I have very real reservations about the Chief Examiner’s conclusion that the orders could be revoked simply because the evidence obtained in the examination proved to be very useful for the purposes of prosecution.
I would accept, as did the parties before me, that if there is any power of revocation, it should only be exercised where there is a changed circumstance since the initial order.[36] But, I bear in mind that -
(a)a non-publication order must be made if the Chief Examiner is satisfied, for example, a person’s safety might be prejudiced if such an order is not made, and
(b)it must always (or nearly always) be contemplated, at the time of an examination, that the examinee’s evidence could be useful for the purposes of a prosecution.
[36]See, for example, James v DPP [2006] VSC 384, [7].
In those circumstances, it seems a highly dubious proposition to say that the fact that the evidence obtained actually proves to be useful for a prosecution can be characterised as relevant changed circumstance which justifies setting aside the order, when the circumstances which mandated its making have not changed. In the case at hand, that is precisely the justification that the Chief Examiner relied upon.
When invited to identify any other circumstance which had changed which might justify the revocation of the mandatory order, counsel for the Chief Examiner submitted that the relevant changed circumstance was the combination of the passage of time since the making of the order, the fact that the plaintiff’s own charges had been dealt with, and the utility of the evidence. In my view neither of these additional matters adds any weight to the utility of the evidence as constituting a relevant changed circumstance, particularly in the circumstances of this case.
The passage of time was not mentioned or relied upon by the Chief Examiner. In any event it is not particularly long (around 17 months) and it is not obvious to me why that period should make any particular difference. The disposition of the plaintiff’s own charges was relevant initially to whether or not the order should be revoked (as explained above). It does not constitute a changed circumstance to justify the revocation; it merely cleared an obstacle to it being granted.
Without needing to decide, I am inclined to think that, rather than resorting to a later revocation, the better view is that the use of the exception power in s 43(1) is the preferable (if not proper) mechanism for preserving the opportunity to use coercively obtained evidence for a prosecution notwithstanding the existence of any safety concern which mandates the making of a general non-publication direction.[37] Ironically, that is exactly what the Chief Examiner did in this case. Such an exception is made at the point of the initial grant. Whether or not the exception should be inserted can be argued at that time and, if it is inserted, the examinee can then choose to act in accordance with the obligations imposed under the Act or accept the consequences of contravention in the knowledge of the protections which he or she has or has not been given.
[37]A course which Coghlan J contemplated in E v Chief Examiner [2010] VSC 353, [17].
Bias
In view of the conclusion I have reached I do not need to decide this ground of review.
Other grounds
Except to the extent I have dealt with the considerations which I think should be taken into account in exercising the implied power of revocation, and the reservations I have expressed about the prominence the Chief Examiner gave to the probative nature of the plaintiff’s evidence, it is not necessary for me to further discuss the plaintiff’s challenge to the other matters taken, or not taken, into account.
Conclusion
For the reasons I have stated the Chief Examiner ‘s decisions made on 1 August 2011 to revoke his earlier confidentiality notice and non-publication direction must be set aside.
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