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…
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- Case
- [2013] VSCA 167
- Decision Date
CaseChat Overview and Summary
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.
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