The Chief Examiner v Mary Brown (a pseudonym) - [2013] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0196

THE CHIEF EXAMINER	Appellant
	v
MARY BROWN (A PSEUDONYM)	Respondent

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JUDGES	HARPER and TATE JJA and GARDE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 April 2013
DATE OF JUDGMENT	27 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 167
JUDGMENT APPEALED FROM	[redacted] v Chief Examiner [2012] VSC 385R

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[Redacted Version]

Appeal – Major Crime (Investigative Powers) Act 2004 (Vic) – Restriction on publication of evidence obtained through the use of coercive powers, pursuant to s 43(1) – Mandatory requirement under s 43(2) to make non-publication order to protect safety or reputation of person – Power to create exceptions – Whether information obtained through the use of coercive powers can be disclosed for the purpose of prosecution – Whether mechanism provided by s 43(4)-(5) the sole means by which evidence can be disclosed to court – Reliance upon s 67 to provide information for the purpose of prosecution inconsistent with protection guaranteed by s 43(2) – Whether exceptions in non-publication order failed to comply with level of specificity required by s 43(1) – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A G Southall QC with Ms R J Sharp	Office of Chief Examiner
For the Respondent	Mr P Faris QC with Ms F H Todd	Ellinghaus and Lindner

HARPER JA:

I have had the considerable benefit of reading, in draft, the judgment of Tate JA. In my respectful opinion, her Honour analyses accurately and with clarity the issues raised by this appeal. I agree with her Honour’s conclusions and with her reasons for reaching them. I wish, by adding a few words of my own, only to emphasise the importance of the Chief Examiner’s powers being exercised strictly in accordance with law.

Power, as John Dahlberg, 1st Baron Acton, acutely observed in a letter to Bishop Mandell Creighton on 3 April 1887, tends to corrupt. Not necessarily – or even most often – by direct involvement in corruption of the criminal kind, but also by something much more subtle. Lord Acton’s epigram has echoed down the ages because he spoke of power’s tendency to corrupt before adding ‘and absolute power corrupts absolutely.’ His truth therefore embraces far more than the kind of corruption with which anti-corruption agencies are properly concerned. It encompasses also the very different exercise of power which is at issue in this appeal: the exercise, that is, of official authority by those who have powers conferred upon them for impeccable reasons, who by no means consciously intend to abuse that power, but who succumb to the very human tendency (something which none of us can entirely avoid – hence the wisdom and insight behind the epigram) to use their positions without a finely honed appreciation of the proper boundaries within which its use should be confined.

Such officials may have an acute appreciation of the valid reasons why power has been conferred upon them. A similarly acute appreciation…

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.

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Details

Case: [2013] VSCA 167
Decision Date: 27 June 2013

CaseChat Overview and Summary

The Chief Examiner appealed against a decision by a magistrate of the Children’s Court of Victoria to allow a publication order concerning information obtained through the use of coercive powers under the Major Crime (Investigative Powers) Act 2004 (Vic). The case was heard by the Court of Appeal of the Supreme Court of Victoria. The primary issue before the court was whether the magistrate had jurisdiction to make a publication order for the purpose of prosecution, and if the order made was sufficient in accordance with the requirements of the Act.

The court found that the magistrate had jurisdiction to make a publication order for the purpose of prosecution. The court further held that there was no inconsistency between the provisions of section 67 and section 43 of the Act. The court found that the exceptions in the non-publication order were not sufficiently specific to meet the requirements of section 43(1) of the Act, and the order made by the magistrate was invalid. The appeal was allowed and the matter was remitted to the Children’s Court with directions to make a valid non-publication order.

The court noted that the appeal was heard on an expedited basis due to the urgency of the matter. The court acknowledged the importance of protecting the safety and reputation of persons involved in investigations, but also recognised the need for evidence to be disclosed for the purpose of prosecution. The court emphasised the importance of complying with the requirements of the Act when making a non-publication order. The final orders of the court were that the appeal be allowed, the decision of the magistrate be set aside, and the matter be remitted to the Children’s Court with directions to make a valid non-publication order.

Orders