The Chief Examiner v Mary Brown (a pseudonym)
[2013] VSCA 167
•27 June 2013
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 of the proper limits of that power is not so readily grasped, because the prospect and actuality of the exercise of power itself tends to dull the imaginative appreciation of its true purpose, and of the effects of its misuse or misapplication. We are too easily duped into an overweening sense of the importance of who we are and what we do. But unless those with whom power has been entrusted are as alert to the dangers of its unwarranted extension – and thus to the tendency of power to corrupt – as they are to the benefits which that exercise is designed to bring, the tendency towards corruption – in the limited sense about which I speak – will become its actuality. Officials such as the Chief Examiner and his or her authorised delegates, being trustees of powers conferred upon them by the public through Parliament, have a duty to be diffident in their exercise. While not entirely absent, that diffidence was not sufficiently in evidence in either this case or in some of the others, discussed by Tate JA, in which the office of the Chief Examiner has been involved.
Judicial officers are among those officials who must keep these precepts firmly in mind for themselves. Otherwise, they too may fail to strictly limit the exercise of their judicial power to that which is necessary in the cause of justice. The Chief Examiner is in relevant respects similarly placed. He or she is endowed by the Major Crime (Investigative Powers) Act 2004 (‘the Act’) with coercive powers. But they must be used only to advance the purposes of the Act. One such purpose is relevant here. It is expressed in s 1(a) as being:
to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences. [My emphasis.]
That regime, properly implemented in accordance with the Act, is an important element in the constant struggle to maintain and enhance the rule of law against the powerful and persistent enemy which is organised crime. It is at the same time a regime any abuse of which will directly endanger the rule of law. All those who exercise the authority of the Chief Examiner must therefore do so with a keen understanding of both its benefits and its limitations.
The courts are likewise required to give effect to the Act, which both confers and circumscribes the powers of the Chief Examiner. It follows that the courts must be astute to ensure that the conferral of that power is neither improperly circumscribed nor exercised beyond its legitimate limits. This case concerns these very important issues.
I use one relatively minor example to illustrate, at least in part, the point I seek to make. In brief, the respondent was required by the Chief Examiner to reveal her knowledge of what was suspected as being organised criminal activity. She complied, as she was compelled to do, and was examined by an authorised delegate of the Chief Examiner. When asked whether she was concerned about her evidence being made available to those who had been charged with offences to which her evidence was related, she said that she was. The basis for her concern was not explored, although in my opinion this should have been seen by the authorised delegate as an important aspect of his examination. He did, nevertheless, direct – pursuant to s 43(2) of the Act – that the publication or communication of the respondent’s evidence, or even of the fact that she had been examined, was forbidden.
The direction, however, contained important exceptions. One was that the otherwise prohibited publication or communication could be made by members of Victoria Police ‘for the purposes of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence’.[1] Another was that such publication or communication could be made by the Office of Public Prosecutions for the purpose of a like prosecution.
[1]My emphasis.
As it stood, the direction would have enabled the police or the Office of Public Prosecutions to publish or communicate, to the accused persons, the evidence of the respondent, and the fact that it was she who gave it. Indeed, that publication or communication may have been an aspect of the Crown’s duty, as prosecutor, to reveal its hand to the defence.
The authorised delegate explained his decision on the basis that the ‘people receiving [the witness’] evidence would understand that from a reading of the transcript [that she] has been compelled to give evidence under the threat of five years’ imprisonment’. So they might. But the authorised delegate ought not to have also assumed that, armed with this understanding, those suspected of participating in organised crime would, upon receiving the evidence, refrain from prejudicing the respondent’s safety. If they were angry enough they might still wish to exact revenge. The mafia, on becoming angry, have been known to do just that. There is no suggestion, so far as I am aware, of mafia-like activity in this case. The authorised delegate, however, certainly made insufficient enquiry of the witness about, and gave inadequate consideration to, the extent of her exposure. He ought, for example, to have taken into account the fact that, while some criminals are intelligent and rational, much criminal behaviour is irrational; and even those who are rational might reason that making an example of a witness giving evidence under compulsion would cause others to think that the risk of prosecution for an offence against the Act was preferable to the risk of physical injury or worse at the hands of desperate accused.
Nothing in the material before this Court indicates that the authorised delegate took these considerations into account. Yet, in enacting s 43(2) of the Act, Parliament must surely have had in mind the fact that a witness who was compelled to give evidence before the Chief Examiner or an authorised delegate would not necessarily be protected by that consideration (that is, the compulsory element in the process) from reprisals mounted by those whose interests were adversely affected by the evidence. Section 43(2) when read with s 43(1) requires that in certain circumstances the Chief Examiner must make what might be termed a ‘non-publication order’. One of the relevant circumstances will arise when the failure to make the order might enable a person who has given evidence before the Chief Examiner to be identified, and that identification might in turn prejudice the safety of the witness. The fact that the evidence was given under compulsion is not referred to in the section.
The circumstances outlined above add point, it seems to me, to the conclusion, reached by Tate JA and with which I agree, that where a non-publication order has been made (putting aside those occasions where a non-publication order can be lawfully rescinded) the mechanism provided by ss 43-45 of the Act is the only means by which evidence given by a witness before the Chief Examiner or an authorised
delegate can be relied upon in a prosecution. I should add that I specifically join with her Honour in her conclusion (at [60] of her Honour’s judgment) that the power to create exceptions does not extend to making an exception for the ‘world at large’. As her Honour states, such an exception is tantamount to refusing altogether to make a non-publication order.
TATE JA:
Introduction
The Major Crime (Investigative Powers) Act 2004 (‘the Act’) authorises the Chief Examiner to make non-publication orders to protect the safety and reputation of witnesses who give evidence in confidence in response to the exercise of coercive powers. It also permits the creation of exceptions. Can those exceptions extend to disclosure for the purposes of the prosecution of an organised crime offence about which the witness has given evidence?
On 7 October 2011 the appellant, the Chief Examiner, issued a witness summons directed to the respondent, Ms Brown (a pseudonym), to give evidence of her involvement in [redacted]. The witness summons was issued under the Act by reason of a coercive powers order having been made by the Supreme Court on 16 September 2010.[2]
[2]This was extended on 14 September 2011.
Ms Brown was examined by an authorised delegate of the Chief Examiner on 8 November 2011.[3] She was represented by counsel.
[3]For convenience, I will refer to the authorized delegate of the Chief Examiner as ‘the Chief Examiner’. Nothing turns on the particular individuals involved nor was there any challenge to the validity of the delegation.
At the outset of the hearing at which Ms Brown was to give evidence, a question arose as to whether the Chief Examiner ought to make a non-publication order to protect the safety of Ms Brown. She was told that her evidence might be
released to certain persons who had been charged with offences in relation to the particular investigation, as a result of an application by the police. Ms Brown responded affirmatively to the question of whether she had any concerns about such disclosure. Her counsel was given an opportunity to take instructions from her on that issue. He told the Chief Examiner:
She believes that if any of what she says is released to these other people [people who had been charged in relation to the particular investigation], or they hear about her being here, then that would be a source of great concern to her. She doesn’t necessarily believe that she’s going to be physically hurt, but she doesn’t know … She can’t predict the future … talking about other people behind their back can lead to matters quite embarrassing … that could hurt her reputation [redacted] … she wants to invoke the confidentiality principles.
The Chief Examiner determined to make a non-publication order. He also included within the order several exceptions, some of which were to facilitate the use of Ms Brown’s evidence in criminal prosecutions. The signed non-publication order made on 8 November 2011 (‘the non-publication order’) was as follows:[4]
[4]The non-publication order was made pursuant to s 43(2) of the Act. See further below.
DIRECTION PROHIBITING PUBLICATION OR COMMUNICATION OF EVIDENCE
THE EXAMINER DIRECTS THAT:
(a) any evidence given before the Examiner;
(b)the contents of any document, or a description of any thing, produced to the Examiner; or
(c)any information that might enable a person who has given evidence before the 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 except:
(a)by the Chief Commissioner of Police exercising his or her right of information sharing as detailed in s 67 of the Major Crime (Investigative Powers) Act 2004 (the Act); or
(b)by members of Victoria Police lawfully engaged in the investigation of an organised crime offence; or
(c)by members of Victoria Police for the purposes of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence or an offence under the Act; or
(d)by the Office of Public Prosecutions for the purpose of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence under the Act.
THIS DIRECTION is made pursuant to the provisions of s. 43(2) of the Act and I am satisfied that a direction must be made at this time because a failure to do so might prejudice:
(a)the safety or reputation of a person, [Ms Brown], in relation to whom the summons was issued; or
(b)the fair trial of persons, namely, [[XY], [ZZ], and others], who have been charged with offences.
Dated this 8th day of November 2011.
After the examination of Ms Brown’s evidence had been completed, the Chief Examiner received a letter from Ms Brown’s solicitor, dated 22 November 2011, asking that the direction be varied to omit paragraphs (c) and (d) of the exception from the non-publication order, on the ground that permitting Ms Brown’s evidence to be disclosed in accordance with paragraphs (c) and (d) might prejudice Ms Brown’s safety and reputation.
The Chief Examiner responded,[5] indicating that he had determined that no variation was warranted.
[5]By letter dated 13 December 2011.
On an application for judicial review to the Trial Division of the Supreme Court, the judge declared that the non-publication order was invalid in part, in respect of the exceptions created for disclosure by members of the Victoria Police engaged in the investigation of an organised crime offence and any disclosure for the purposes of prosecution, on the ground that the Chief Examiner had acted beyond his statutory power.[6]
[6][redacted]v Chief Examiner [2012] VSC 385R (‘Reasons’).
The Chief Examiner has appealed from the declaration. Ms Brown has filed a Notice of Contention serving to uphold the judge’s decision on additional grounds.
For the reasons that follow, I would dismiss the appeal.
I would also affirm the decision below on many of the grounds in the Notice of Contention.
The evidence before the Chief Examiner
The substance of the evidence Ms Brown gave before the Chief Examiner was as follows:
(1) [redacted]
(2) [redacted]
(3) [redacted]
(4) [redacted]
No questions were asked of Ms Brown which were directly relevant to the non-publication order, or which might have shown the need for a more restrictive non-publication order. At the conclusion of the questioning, counsel for Ms Brown was given an opportunity to question the witness ‘to clarify or explain away any matters that have been raised in her evidence’. Counsel was asked if he had any questions for the witness, and he answered ‘No’.
The Chief Examiner then noted that nothing he had heard from the witness would persuade him to vary the non-publication order and that, in particular, there had been no evidence led of any threats made to Ms Brown. The judge observed that this observation was curious[7] given that the Chief Examiner had not asked Ms Brown whether she had at any time been threatened or whether she feared repercussions or damage to her reputation once it was known she had given evidence before him. Nor did the Chief Examiner invite Ms Brown’s counsel to lead any evidence from his client on those issues. However, the Chief Examiner did invite submissions from counsel on the non-publication order.
[7]Reasons, [19].
Counsel submitted that it would be more appropriate, if Ms Brown was later to be called as a prosecution witness, for the police to obtain a statement from her in the usual manner. Implicitly, he was urging that, if Ms Brown’s evidence was to be relevant and probative in any subsequent prosecution, the process ought be formalised by the police taking a statement from her that would be included in the prosecution brief.[8] Counsel submitted that disclosure of the evidence Ms Brown had given before the Chief Examiner, for the purposes of prosecution, would be unfair, saying:[9]
[J]ust by circumventing those [ordinary] processes by saying ‘Look you can have all of this. If you want to use it in a prosecution, go ahead and use it and her name will be known’, in my submission it’s very unfair to her in terms of her being coerced to give evidence today and the promises that it would be a secret hearing, that she’s not allowed to tell anyone, and matters such as that, which have enabled you to examine her in such a manner. Also if (c) and (d) are allowed it would seem to me that those people that are prosecuted, if they deliver a subpoena then they would be able to get a whole transcript of these proceedings and use it in any manner they saw fit. She has a genuine fear. Now, I can’t say it’s based on threats or any matters such as that, but nevertheless it’s a genuine fear that arises out of cooperating with this coercive and secretive organisation that you represent in terms of giving [redacted] information [redacted]. Her fear is that those people would not be happy with it, and whether they would do anything or whether they have friends who would do anything she doesn’t know, but that’s the possibility she perceives.
[8]Ibid [21].
[9]Ibid [20].
The Chief Examiner responded by suggesting that a further opportunity would be given for counsel to make submissions after counsel had been provided by the Office of the Chief Examiner with copies of some of the authorities in the area, and that no disclosure would occur in accordance with paragraphs (c) and (d) of the non-publication order until that opportunity had been afforded. The Chief Examiner also said:[10]
I accept that there might be prejudice to the safety or reputation of the witness based upon the fear she has expressed, but what has occurred today is the witness has been compelled to give evidence in a coercive setting where she has no choice, and the publication or communication of that evidence in those circumstances would in my view not exacerbate or involve any further threat to her safety or reputation. The people receiving her evidence would understand that from a reading of the transcript she has been compelled to give evidence under the threat of five years imprisonment for failing to give evidence. In those circumstances I am satisfied that the current terms of the non-publication order serve two purposes. First they’re in accordance with the provisions of the Major Crime (Investigative Powers) Act and secondly it would not constitute a risk to the safety or reputation of the witness that would require me to make a more restrictive non-publication direction than what is proposed.
[10]Ibid [23].
Ms Brown then confirmed that she was aware that she could speak to her lawyers but not to other witnesses about what she had said, and went on to say:[11]
[11]Ibid [25].
Ms Brown:Cause today I give you – you all information, is true and is very secret …[redacted] – they might think I – me do it, yeah. …
Chief Examiner: You’re concerned about that?
Ms Brown: Yeah they’re very easy to guess is me. …
Chief Examiner: I understand that you do not want [redacted] to know you’ve given this evidence.
In the letter Ms Brown’s legal representatives later sent to the Chief Examiner, mentioned above,[12] not only was the request made that disclosure not be permitted in accordance with paragraphs (c) and (d) of the exceptions in the non-publication order on the ground of prejudice to the safety and reputation of Ms Brown, but also the comment was made that the Act:[13]
provides extraordinary coercive powers in a departure from the usual rights of citizens. On the other hand the Act then provides many protections or ‘comforts’ to citizens (witnesses). To then take away the major part of that protection (secrecy) by publishing to the very persons her evidence relates to … is unfair and unsafe.
[12]On 22 November 2011. See [18] above.
[13]Reasons, [28] (emphasis added).
When the request was refused,[14] the Chief Examiner indicated that unless an application was filed with the Supreme Court, Ms Brown’s evidence ‘will be released and Victoria Police will serve it upon [one of the persons being investigated who was named in the coercive powers order] and XY’.[15]
[14]By letter dated 13 December 2011. See [19] above.
[15]Reasons, [29].
The Supreme Court proceedings
The application for judicial review brought by Ms Brown challenged the exceptions made in paragraphs (c) and (d) of the non-publication order. By her originating motion, she sought relief in the nature of declarations, prohibition and certiorari against the Chief Examiner. She claimed, inter alia, that the Chief Examiner erred by failing to fulfil his statutory obligation to avoid her safety being prejudiced.[16] Alternatively, she asserted that the exercise of the discretionary power to create exceptions to a non-publication order miscarried because the Chief Examiner failed to take into account a relevant consideration, namely, he failed to consider properly the impact upon her safety and reputation when he made the exceptions in (c) and (d). She also claimed that the Chief Examiner had acted unreasonably.
[16]More particularly, she claimed that the Chief Examiner had failed to fulfill his statutory duties under s 43(2) of the Act. See further below.
The Chief Examiner opposed the application on the ground that he had a wide discretion under the Act not only to make and revoke the directions, but also to include any exceptions that seem appropriate to him.
As indicated above, the matter was heard before a judge in the Trial Division of the Supreme Court who delivered judgment in favour of Ms Brown and made a declaration that the non-publication order was invalid in part, namely, in so far as it contained the underlined words:[17]
[17]The judge regarded the underlined portion as all forming part of paragraph (d) but nothing turns on this.
DIRECTION PROHIBITING PUBLICATION OR COMMUNICATION OF EVIDENCE
THE EXAMINER DIRECTS THAT:
(a) any evidence given before the Examiner;
(b)the contents of any document, or a description of any thing, produced to the Examiner; or
(c)any information that might enable a person who has given evidence before the 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 except:
(a)by the Chief Commissioner of Police exercising his or her right of information sharing as detailed in s 67 of the Major Crime (Investigative Powers) Act 2004 (the Act); or
(b)by members of Victoria Police lawfully engaged in the investigation of an organised crime offence; or
(c)by members of Victoria Police for the purposes of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence or an offence under the Act; or
(d)by the Office of Public Prosecutions for the purpose of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence under the Act.
THIS DIRECTION is made pursuant to the provisions of s. 43(2) of the Act and I am satisfied that a direction must be made at this time because a failure to do so might prejudice:
(a)the safety or reputation of a person, [Ms Brown], in relation to whom the summons was issued; or
(b)the fair trial of persons, namely, [ [XY], [ZZ], and others ], who have been charged with offences.
Dated this 8th day of November 2011.
He also ordered that the matter be remitted to the Chief Examiner to seek further evidence from Ms Brown and to decide whether the non-publication order should continue without the underlined portion.
The statutory scheme
The purposes of the Act include in s 1 provision for ‘a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences’.[18]
[18]Section (1) (a) of the Act. The only other purpose of the Act defined in s 1 is for the amendment of various Acts.
The phrase ‘organised crime offence’ is defined in s 3 to mean:
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 or of sexual gratification where the victim is a child.
A member of the police force can apply to the Supreme Court, pursuant to s 5, 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. The application can only be made with the approval of the Chief Commissioner of Police or a delegate of the Chief Commissioner. The application, which must be in writing, must specify the name and rank of the applicant and of the person who approved the application, particulars of the organised crime offence in respect of which the coercive powers order is sought, and the name of each alleged offender, if known, and the period, not exceeding 12 months, that is sought for the duration of the order.[19] The application must be supported by an affidavit by the applicant stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed. The affidavit must also set out the grounds on which the applicant holds the relevant suspicion and the reasons why the use of coercive powers is sought.[20]
[19]Section 5(3).
[20]Section 5(4). See DPP v Debono (2012) 268 FLR 261, 271-2 [37]-[41], for a description of the procedure now adopted by the Court for the obtaining of a Coercive Powers Order (Kyrou J).
The coercive powers order is limited in its use to the investigation of the particular organised crime offence in respect of which the order is made. This is apparent from s 4:
A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made.
Section 8 confers on the Supreme Court the power to make a coercive powers order. It provides:
(1) the Supreme Court may make a coercive powers order if satisfied –
(a)that there are reasonable grounds for the suspicion founding the application of 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.
Section 9 imposes requirements on the specificity of the information that must be contained in a coercive powers order, most particularly, the identification of the organised crime offence in relation to which coercive powers authorised under the Act can be used. Section 9(2) provides:
A coercive powers order must also specify –
(a) the organised crime offence in respect of which the order is made; and
(b)the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and
(c) the name and rank of the applicant; and
(d) the name and rank of the person who approved the application; and
(e) the date on which the order is made; and
(f)the period for which the order remains in force, being a period not exceeding 12 months; and
(g) any conditions on the use of coercive powers under the order.
There is scope for a coercive powers order to be extended, varied or revoked.[21]
[21]Sections 10 and 12 respectively. As noted above, the coercive powers order here had been extended.
Section 29 permits the Chief Examiner, an Australian lawyer of at least 5 years’ standing whose appointment is made by the Governor-in-Council,[22] to conduct an examination of a person in relation to an organised crime offence if the Chief Examiner has received a copy of a coercive powers order made in relation to the offence. The Chief Examiner is supported by police personnel who may be involved in examinations under the Act.[23]
[22]See s 21(2)(a).
[23]See s 28.
Once a coercive powers order has been obtained, and is in force, either the Supreme Court or the Chief Examiner can issue a witness summons to compel a witness to attend an examination before the Chief Examiner to give evidence and/or produce specified documents or other things.[24] The Court, or Chief Examiner, must be satisfied that it is reasonable to issue a witness summons, after consideration, pursuant to s 14(6)(a) or s 15 (4)(a) respectively, ‘of the evidentiary or intelligence value of the information sought to be obtained from the person’.
[24]Sections 14 and 15 respectively. See CR v Attorney-General (Vic) (2007) 173 A Crim R 343 (Kaye J).
A witness may be provided with a statement indicating that the summons is a confidential order and that it is an offence to disclose to anyone the existence of the summons or the subject-matter of the organised crime offence in relation to which the summons was issued, without reasonable excuse. Obtaining legal advice is one such reasonable excuse. Section 20 provides:
20. Confidentiality of witness summons and orders
(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.
The examination must be held in private and the Chief Examiner may give directions as to the persons who may be present during the examination.[25] The Chief Examiner is not bound by the rules of evidence in conducting an examination and may regulate the conduct of the examination as thought fit.[26] A witness may be represented by a legal practitioner.[27] The witness may be examined or cross-examined ‘so far as the Chief Examiner thinks appropriate’, ‘on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates’.[28] The Chief Examiner can take evidence on oath or affirmation.[29] A person served with a witness summons who fails to attend or refuses to answer questions, without reasonable excuse, is guilty of an indictable offence and liable to level 6 imprisonment (5 years’ maximum).[30] It is an offence to give false or misleading evidence.[31] The privilege against self-incrimination is expressly abrogated.[32] A person is entitled to refuse to answer a question or produce a document on the ground of legal professional privilege.[33] It is an offence to hinder or obstruct the Chief Examiner in the exercise of his functions.[34] A person attending before the Chief Examiner may be guilty of contempt.[35] There are various forms of monitoring and oversight of the Chief Examiner’s activities under the Act, including by the Public Interest Monitor[36] and the Victorian Inspectorate.[37]
[25]Section 35(1).
[26]Section 30(1).
[27]Section 34 (1).
[28]Section 36(1).
[29]Section 36(2).
[30]Section 37(3).
[31]Section 38.
[32]Section 39.
[33]Section 40.
[34]Section 44.
[35]Section 49.
[36]Section 3D.
[37]Section 51.
Section 43 restricts the publication of evidence. It is therefore of particular importance in this case. It confers the power upon the Chief Examiner to make non-publication orders and to create exceptions. It provides:
Restriction on publication of evidence
(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 sub-section (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.
(3)A person who makes a publication or communication in contravention of a direction given under sub-section (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
(4) If—
(a) a person has been charged with an offence before a court; and
(b)the court considers that it may be desirable in the interests of justice that particular evidence given before the Chief Examiner, being evidence in relation to which the Chief Examiner has given a direction under sub-section (1), be made available to the person or to a legal practitioner representing the person—
the court may give to the Chief Examiner or the Chief Commissioner a certificate to that effect and, if the court does so, the Chief Examiner or the Chief Commissioner (as the case requires) must make the evidence available to the court.
(4A) When the Chief Examiner or the Chief Commissioner makes evidence available to the court in accordance with subsection (4), the court must give –
(a)the Chief Examiner and the Chief Commissioner; and
(b)if a direction under subsection (1) involves the interests of a witness, the witness –
an opportunity to make submissions to the court as to whether or not the evidence should be made available, in full or in part, to the person charged or a legal practitioner representing the person.
(5) If—
(a)the Chief Examiner or the Chief Commissioner makes evidence available to a court in accordance with sub-section (4); and
(b)the court, after examining the evidence and considering any submissions made under subsection (4A), is satisfied that the interests of justice so require—
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
(6)Nothing in this section empowers the Chief Examiner to give a direction under sub-section (1) that would restrict the exercise of powers or the performance of duties by the Special Investigations Monitor under this Act or affect a person's right under this Act to complain to the Special Investigations Monitor.
As mentioned above, it is the approval of the Chief Commissioner that is required, under s 5(2) of the Act, before an application is made by a member of the police for a coercive powers order. The Chief Commissioner has various obligations under the Act, including the duty to pay the allowances and expenses of witnesses[38] and to give assistance, and to ensure that each member of the police force gives assistance, to the Victorian Inspectorate.[39] The Chief Commissioner also has the power to share information with other law enforcement agencies under s 67. It provides:
[38]Section 19(2).
[39]Section 58.
Information sharing
(1) The Chief Commissioner may give to—
(a) any law enforcement agency; or
(b) any foreign law enforcement agency; or
(c)any other agency or body of the State, the Commonwealth, another State or a Territory prescribed by the regulations—
any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that is relevant to the activities of that agency or body if—
(d)it appears to the Chief Commissioner to be appropriate to do so; and
(e)to do so would not be contrary to a law of the State, the Commonwealth or that other State or that Territory that would otherwise apply.
(2)The Chief Commissioner may, whenever it appears to the Chief Commissioner to be appropriate to do so, furnish to authorities and persons responsible for taking civil remedies by or on behalf of the Crown in right of the State or of the Commonwealth or of another State or of a Territory any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that may be relevant for the purposes of so taking such remedies in respect of matters connected with, or arising out of, offences against the laws of the State, the Commonwealth or that other State or the Territory, as the case requires.
(3)Where any information relating to the performances of the functions of—
(a) a Department of State of the State or of the Commonwealth; or
(b) the Administration of a Territory; or
(c)an instrumentality of the State, the Commonwealth, another State or a Territory—
comes into the possession of the Chief Commissioner under a coercive powers order, the Chief Commissioner may, if he or she considers it desirable to do so, furnish that information to the Department, the Administration or the instrumentality.
(4)The Chief Commissioner may, whenever it appears to the Chief Commissioner to be appropriate to do so, furnish to the Australian Security Intelligence Organisation any information derived under a coercive powers order that is in the possession of the Chief Commissioner and that is relevant to security as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth.
(5) In this section—
foreign law enforcement agency means—
(a) a police force (however described) of a foreign country; or
(b)any other authority or person responsible for the enforcement of the laws of the foreign country;
law enforcement agency means—
(a) the Australian Federal Police; or
(b) a police force of a State or a Territory; or
(c)any other authority or person responsible for the enforcement of the laws of the Commonwealth or of a State or a Territory.
Section 68 is concerned with secrecy. It creates offences for the divulging of information by the Chief Examiner, an Examiner, or a member of police personnel. It also provides exceptions where the disclosure occurs by the Chief Examiner or an Examiner for the purposes of the Act or in the exercise of functions under the Act, or, in the case of a police officer, for the purpose of investigating or prosecuting an offence. It also protects against the compulsory production of information in a court. Section 68 reads:
68 Secrecy
(1) This section applies to –
(a) the Chief Examiner; and
(b) an Examiner; and
…
(e) a member of police personnel.
(2)A person to whom this section applies who, either directly or indirectly, except for the purposes of this Act or otherwise in connection with the performance of his or her functions under this Act or, in the case of a member of the police force, for the purpose of investigating or prosecuting an offence, and either while he or she is or after he or she ceases to be a person to whom this section applies –
(a) makes a record of any information; or
(b) divulges or communicates to any person any information –
being information acquired by him or her by reason of, or in the course of, the performance of his or her functions under this Act, is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
(3)A person to whom this section applies cannot be required to produce in any court any document that has come into his or her custody or control in the course of, or by reason of, the performance of his or her functions under this Act, or to divulge or communicate to a court a matter or thing that has come to his or her notice in the performance of those functions, except where the Chief Examiner, an Examiner or a member of the police force in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so –
(a)for the purpose of carrying into effect the provisions of this Act; or
(b)for the purposes of a prosecution instituted as the result of an investigation carried out by the police force into an organised crime offence.
The reasons of the judge below
The judge found that the Chief Examiner, in creating the exceptions to the non-publication order underlined above, had acted beyond his powers in permitting the release of evidence for the purpose not only of investigation but also of prosecution. Those exceptions were therefore invalid. They ‘deprived the order of its protective effect on [Ms Brown]’.[40] He concluded also that disclosure for the purpose of prosecution could proceed only through the mechanism of s 43(4) of the Act.
[40]Reasons, [47].
He concluded that: [41]
In summary, in my opinion, the Examiner acted outside the bounds of his statutory authority in providing that the plaintiff’s evidence could be provided to Victoria Police, not only for the purpose of investigation, which of itself may be permissible, but also for the purpose of prosecuting offences under the Act. The order made appeared to contemplate that the evidence may be incorporated into the prosecution hand up brief and provided to the accused prior to committal or trial pursuant to the prosecutor’s duty of disclosure. The appropriate mechanism for achieving this outcome is set out in s 43(4) of the Act. The requirements of s 43(4) acknowledge the coercive nature of the examination that is possible as a result of the Act, and the risks that may arise for a witness in giving such evidence. The Chief Examiner is not, in my opinion, empowered to permit that a transcript of an examination may be released to an accused by way of an exception to a non-publication order made under s 43(1).
[41]Ibid [45].
He held that the intention of the Act was to confer coercive powers upon the Chief Examiner for the investigation of organised crime offences but not their prosecution. He considered that, as the purpose of the Act is, as described above, ‘to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences’, it follows that ‘the Chief Examiner is intended to be an investigator rather than an evidence-gatherer by compulsion.’[42]
[42]Ibid [59].
The judge went on to say, in effect, that it was inconsistent with the provision made by the Act for disclosure to a court under s 43(4), for transcript of evidence taken before the Chief Examiner to be released by the use of exceptions to a non-publication order: [43]
In my opinion the Act does not contemplate that a transcript of the evidence given under coercion by [Ms Brown] before the Chief Examiner can, by an exception incorporated into a non-publication order under s 43(1), simply be handed over to the Office of Public Prosecutions and a transcript of it then form part of a hand-up brief to be served on those accused of committing offences.
…
The provisions in the Act seem to illustrate that evidence before the Chief Examiner will only be disclosed when a court considers it is in the interests of justice for that to occur [under s 43(4)(b)]. Such circumstances may include the desirability that a witness be cross examined about significant inconsistencies between the evidence given in the court and the evidence that had been given in secret before the Chief Examiner.
[43]Ibid [59], [60].
The judge observed that sub-sections (4) and (5) of s 43 provide for a specific procedure by which evidence given before the Chief Examiner can be made available to a person charged or that person’s legal practitioner, under the supervision of the court before which he or she has been charged, saying that: [44]
In my opinion, this section provides the particular mechanism by which evidence that is subject to a non-publication order and given before the Chief Examiner might eventually reach a person charged with an offence. This can only occur after the court before which they are being dealt has examined the evidence and decided that it is in the interests of justice to release it. There is also opportunity for the witness to be heard about the resulting impact of the information’s release on their safety and/or reputation.
[44]Ibid [50].
With respect to s 67 and the information-sharing mechanism it provides by which the police or Office of Public Prosecutions will become aware of evidence given before the Chief Examiner, or his delegate, the judge concluded that, while it is permissible for an exception in a non-publication order to allow for the release of information in accordance with that mechanism, it was unnecessary for the Chief Examiner to do so. In this he was, with respect, correct. He said: [45]
Section 67 provides a mechanism by which the police or office of the Director of Public Prosecutions will become aware of evidence given before the Chief Examiner or his delegate. Under the principles which would require disclosure of that evidence to an accused person, the court before which that person is to be dealt can be informed and the procedure specified in s 43(4) and following can be embarked upon. An Examiner might validly incorporate into any exception to a non-publication order under s 43(1) a reference to what can occur pursuant to s 67 as the Examiner did in this case. In my opinion it would be unnecessary to do so. What an Examiner may not do is to incorporate into such an exception the wording which was used by the Examiner in this case.
[45]Ibid [52].
The judge considered that the vice in the impugned exception was two-fold: (1) that it would undermine the purpose of a non-publication order and contravene s 43(2); and (2) that there was no express authorisation of release for the purpose of prosecution under the Act. He said:[46]
First, given the consequences that would flow and which the Examiner acknowledged, it would entirely undermine the purpose of making a non-publication order and would be contrary to the mandatory provision of s 43(2). Second, such an exception is not authorised anywhere in the Act … So, when the Examiner in this case said to [Ms Brown],
As it currently stands, the non-publication direction permits communication by Victoria Police for the purpose of their investigation and for prosecutions arising under the Act. That would result in the evidence of this witness being provided to persons charged if this evidence was deemed to be relevant to those matters.
Those remarks demonstrated, at least in part, that the Examiner was intending to act in a way which in my opinion is not authorised by the Act.
[46]Ibid [53]-[54].
The judge also made the observation that the non-publication order was made and continued without an evidentiary basis. While submissions had been made about threats to safety and reputation, there was no evidence led to that effect. He remitted that part of the non-publication order that had not been declared invalid for reconsideration by the Chief Examiner on the basis of evidence.
Grounds of appeal
The Chief Examiner relied on seven related grounds of appeal:
1.The learned trial judge erred in his construction and/or interpretation of s 43(1) of the Act, in finding that the discretionary power of the Chief Examiner to specify exception(s) to a non publication direction, may not be exercised to permit Victoria Police or the Office of Public Prosecutions to use evidence obtained in an examination in the prosecution of an organised crime offence.
2.The learned trial judge erred in finding that the subject matter, scope and purposes of the Act do not include the investigation of organised crime offences for the purpose of obtaining evidence to be used in the prosecution of such offences.
3.The learned trial judge erred in finding that the Act does not contemplate that evidence given before the Chief Examiner can ever be incorporated into a brief of evidence for use by the prosecution.
4.The learned trial judge erred in finding that the exceptions in paragraph (d) of the non-publication order would entirely undermine the purpose of the non-publication direction, being to protect the safety of the witness.
5.The learned trial judge erred in failing to apply, or alternatively failing to follow, the findings in E v Chief Examiner [2010] VSC 353 as to the subject matter, scope and purpose of the Act.
6.The learned trial judge erred in failing to apply, or alternatively failing to follow, the dictum in REG v Chief Examiner [2011] VSC 332 as to the nature and extent of the direction of the Chief Examiner to specify exceptions to a non publication direction pursuant to s 43(1) of the Act.
7.The learned trial judge erred in failing to apply, or alternatively failing to follow, the findings in James v Chief Examiner [2006] VSC 384 as to there being avenues other than s 43(4) to avoid a non publication direction.
It is apparent that many of these grounds over-lapped.
During the course of the hearing of the appeal, some of the issues were further crystallised and a Notice of Contention was filed by Ms Brown as follows:
Notice of Contention
1. That the exceptions to the non-publication direction were made beyond power in that they:
(a)failed to properly specify the persons to whom the evidence given before the Chief Examiner may be published or communicated;
(b)failed to properly specify the manner in which the evidence given before the Chief Examiner may be published or communicated;
(c)failed to identify who the ultimate recipients of the coerced information were to be;
(d)purported to authorise the publication of the material by or to the Office of Public Prosecutions in circumstances where such publication is wholly governed by s 43(4)-(5).[47]
[47]Notice of Contention, 12 April 2013.
Further submissions were filed by both parties, addressing the issues arising from the Notice of Contention.
Ultimately, the key issues that emerged in contest between the parties, by means of the Notice of Appeal and the Notice of Contention, were two-fold:
(1) Is the mechanism provided by s 43(4) the sole means by which evidence obtained through the use of coercive powers by the Chief Examiner can be disclosed to a court? Was the judge correct to consider that it was the sole means?
(2) Did the exceptions in the non-publication order fail to comply with the level of specificity required under s 43(1)?
I deal with each of these issues in turn.
(1) Is s 43(4) the sole means of disclosure before a court?
The Chief Examiner submitted that the judge was wrong to conclude that s 43(4) (or ss 43-45) provided the only means of disclosure to a court of evidence obtained under compulsion. He argued that the investigation of organised crime offences is incomplete without a recognition that the investigation has as its aim the prosecution of offenders. As the Act authorises the use of coercive powers for the express purpose of investigating organised crime offences, it must be understood as implicitly permitting those powers to be used for the prosecution of those offences. It was submitted that the use of evidence obtained by coercive means for prosecution is an incidental purpose of obtaining the evidence. In this he relied on the judgment of Merkel J in Health Insurance Commission v Freeman,[48] where his Honour said:[49]
[C]ompulsory investigative powers exist to facilitate the discharge by a statutory authority of its statutory investigative functions and are exercisable only for that purpose … information (and I would add material) obtained in the exercise of those powers may be used for purposes reasonably incidental thereto and such other purposes as are authorised by the statute. Clearly, retention and use of the forms seized in the present case for the purposes of a prosecution lie at the heart of the purpose of the investigatory power.
[48](1998) 88 FCR 544.
[49](1998) 88 FCR 544, 555-556, citing Sir Donald Nicholls VC in Morris Director of Serious Fraud Office [1993] Ch 372, 381. Van Doussa and Carr JJ agreed with Merkel J.
He also relied on the comments made in the Second Reading Speech for the Major Crimes (Investigative Powers) Bill where the Minister for Community Services observed that the Bill abrogated the right to silence by providing for evidence to be compulsorily obtained but that it also provided an immunity with respect to the use that could be made of self-incriminating answers or documents, that use immunity being qualified so that it did not preclude the evidence being available in a prosecution against a third party, and did not preclude a train of inquiry to be undertaken and the information from that inquiry to be relied on in a prosecution against that witness.[50] The Minister said: [51]
The limitation on the use of information or evidence obtained will not extend to the use of other information or evidence derived as a result of those answers in a criminal prosecution against the witness, nor the use of those answers in a prosecution against a third party.
[50]See Sorby v The Commonwealth (1983) 152 CLR 281, 312 (Murphy J); Hamilton v Oades (1989) 166 CLR 486, 496 (Mason CJ).
[51]Legislative Assembly, 5 October 2004, p 615 (Ms Garbutt) (emphasis added). See s 39(2) and (3) of the Act.
So much can be accepted, as can the indication given by s 14(6)(a) and s 15(4)(a) of the Act,[52] that ultimately the reason behind the issuing of a witness summons will be the evidentiary or intelligence value of the answers to be given. That value may well lie in the reliance that can ultimately be placed upon those answers in a prosecution against a third party, or upon the information or evidence obtained as a result of further investigations prompted by those answers. The linkage between investigations and prosecutions, adverted to by Merkel J in Health Insurance Commission v Freeman, can be admitted. The question remains as to what mechanisms are provided by the Act for the disclosure of information, obtained through the use of coercive powers, in a prosecution. The existence of a linkage between investigations of organised crime offences and their prosecution cannot expand the purposes of the Act if that expansion is not otherwise supported by the statutory scheme. Nor can it expand the scope of the power to create exceptions if the Act identifies an alternative mechanism by which relevant evidence can be made available in a prosecution, and the scheme manifests an intention to make that the sole means of such disclosure, short of rescinding or ‘unmaking’ the non-publication order itself.
[52]See [44] above.
The Chief Examiner submitted that the judge ought to have followed the reasoning of Coghlan J in E v Chief Examiner[53] where his Honour, in considering the implied power to revoke a direction made pursuant to s 43, held that a clear purpose of the Act was to make evidence obtained available for the use of prosecution. There, the Chief Examiner had rescinded a non-publication order so that the evidence could be used in prosecuting an offence. Coghlan J observed, surely correctly, that non-publication orders are made pursuant to s 43(1), even if the power is qualified by the mandatory requirement under s 43(2). He went on to say that the power to create exceptions could be used to authorise disclosure to the world at large:[54]
The words in s 43(1) ‘except in such manner, and to such persons, as the Chief Examiner specifies’ would give the Chief Examiner power to provide exception to the ‘world at large’, or so as to the public generally. The exception which could be stated to allow evidence to be used in a criminal proceeding which in turn would make it public can reasonably be brought about by rescission of the direction. Rescission also releases the plaintiff from his obligation to treat the matter as confidential.
[53][2010] VSC 353.
[54]Ibid [17].
Coghlan J, in turn, relied upon what Morris J had said in James v Office of the Chief Examiner[55] to the effect that while the procedure under s 43(4) and (5) amounts to one means by which evidence obtained through the use of coercive powers can be disclosed in a prosecution, it is not the only means. Morris J said of the primary submission put to him:[56]
It was to the effect that the scheme of s. 43 is that if a direction is made that evidence must not be published or communicated then the only method for departing from that direction is that set out in sub-ss.(4) and (5) of the section. That is, if a direction is made, it was said that the only method of departing from that direction was to persuade a court that it may be desirable in the interests of justice that the evidence be made available and then, when that evidence is made available, that the court is persuaded that it is in the interests of justice to make that evidence available to a defendant. In other words, the court would, first, make a decision as to whether to call for the evidence and, second, make a decision as to whether to make the evidence available to a defendant.
…
In my opinion, sub-ss (4) and (5) of s 43 provide a means of avoiding the effect of a direction that evidence given before the Chief Examiner must not be published or communicated. However, subss (4) and (5) do not provide the only means by which such a direction might be avoided. In my view, such a direction may be avoided by the unmaking of the direction, as has occurred here, or by varying a direction by changing the exceptions to the direction as contemplated by the final words of sub-s.(1).
[55][2006] VSC 384.
[56]Ibid [9], [11].
His Honour went on to explain that he considered that the use of sub-s (4) and (5) by a defendant may not be the only means by which evidence obtained before the Chief Examiner can be disclosed for two reasons: (1) because he considered that the mechanism would also be available to a prosecutor; and (2) because the direction could be rescinded.[57] He said:[58]
Sub-ss (4) and (5) provide an opportunity, in circumstances where a person has been charged with an offence before a court, for evidence that has been given before the Chief Examiner to be produced and possibly made available to the person charged with the offence concerned or a legal practitioner representing the person. Thus, sub-ss. (4) and (5) are primarily directed at giving a person who is charged with an offence before a court a right to instigate a process that may bring that evidence to their knowledge and to enable them to use that knowledge in the proceeding in which they are charged. It may be that sub-ss. (4) and (5) are also available to a prosecutor if the purpose of instigating the process is to bring evidence to the knowledge of the person charged.
Having regard to the limited function of sub-ss. (4) and (5), it would be a surprising outcome if this was the sole method by which a Chief Examiner’s direction, once made, might be avoided. Rather, I think it is just one method of avoiding such a direction; and it ought not be regarded as a method that excludes the rescission of the direction.
[57]For this he also relied on s 41A of the Interpretation of Legislation Act 1984 which provides in effect that where an Act confers a power that power shall be construed as including a power to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.
[58]Ibid [11], [12] (emphasis added).
Once the reasoning of Morris J is exposed, it is clear that it does not support the proposition that the power to create exceptions under s 43(1) extends to making the evidence available to the prosecution. While his Honour acknowledged the existence of the power to create exceptions, there was no indication that he considered this could be used to provide the information given under compulsion for the purpose of prosecution. Rather, he considered that the evidence might be made available to the prosecution because the prosecution may be able to make use of the mechanism under sub-ss (4) and (5) and, in any event, the evidence could be released by the rescission of the direction. With respect to his Honour, that conclusion must surely be correct. It would be anomalous if a non-publication order could not be rescinded where, for example, circumstances changed so as to reveal that there was no longer (or had never been) any threat to the safety or reputation of a witness. But that is wholly different from the proposition that, while a non-publication order is in force, it can contain exceptions which permit the release of evidence given confidentially so as to be included in a prosecution brief and thereby made available to the defence. Where the purpose of the order is to protect the safety or reputation of a witness, without which those interests might be prejudiced, more is needed to support the view that the order may include a qualification to the effect that, despite the ostensible confidentiality of the evidence, it can nevertheless be released to a person charged with an offence although the evidence given by the witness is potentially adverse to the defendant’s interests.
In James the Chief Examiner rescinded his earlier non-publication direction in circumstances in which certain defendants were about to face a committal hearing before a magistrate on serious charges and Mr James was to be a witness. A witness statement which embodied evidence that Mr James might give at the committal had been provided to the defendants. A recording of a conversation Mr James had had with police was also provided to the defendants. The prosecutor invited the Chief Examiner to rescind the non-publication direction on the ground that the evidence might be relevant to the evidence to be given by Mr James at the committal and potentially relevant as to the credit of Mr James.
Insofar as Coghlan J in E v Chief Examiner relied on the reasoning in James to support the view that the Chief Examiner, who has the power to make a non-publication order under s 43(1), also has the implied power to rescind it,[59] I consider that he was correct. However, I do not consider that James supports the observations made by Coghlan J that the power to create exceptions would extend to making an exception for the ‘world at large’. The rescission of an order so as to deprive it of force and effect is something far removed from the making or maintaining of an order to preserve confidentiality, even with appropriate exceptions. To my mind, creating an exception to the world at large is tantamount to refusing to make a non-publication order. It would effectively render the non-publication order nugatory, and would be inconsistent with the duty imposed on the Chief Examiner under s43(2).
[59][2010] VSC 353, [16].
The Chief Examiner also relied on the decision of REG v Chief Examiner,[60] and submitted that the judge erred in not adopting the reasoning of Macaulay J.
[60][2011] VSC 532.
In REG v Chief Examiner the witness was given a notice under s 20 stating that the summons was confidential and a non-publication order was made. The Chief Examiner was satisfied, at the time he made the non-publication order, that the failure to make the order might prejudice the safety of the witness or his family. After the witness had been examined and his evidence obtained, the notice under s 20 was revoked as was the non-publication direction, on the application of Victoria Police so that they might use the transcript of the examination as a witness proof in order that he could be called by the prosecution to give evidence in the prosecution of other persons involved in organised crimes offences the subject of the investigation. Macaulay J noted that those steps were taken ‘despite the unchanged circumstance that, without the orders, the safety or reputation of [the witness] and his family were or might be prejudiced’.[61] The witness sought judicial review on several grounds, including breach of natural justice. It became apparent during the hearing before his Honour that the non-publication direction contained an exception in terms which reflect those contained in paragraph (c) of the non-publication order the subject of this appeal, namely:[62]
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.
[61]Ibid [4].
[62]Ibid [8].
In revoking the non-publication direction the Chief Examiner identified as a principle governing his discretion that:[63]
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.
[63]Ibid [14].
He made no mention of the exceptions he had made to the non-publication direction. Ultimately, his Honour found that the Chief Examiner had erred in failing to take into account a relevant consideration, namely the full terms of the direction he was purporting to revoke, and in doing so committed a jurisdictional error.[64]
[64]Ibid [42].
In the course of concluding that the error committed vitiated the Chief Examiner’s implied power to revoke an order made under s 43(1), his Honour made the following obiter remark: [65]
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. 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.
[65]Ibid [50], citation omitted.
In relying upon this passage from the judgment of Macaulay J, the Chief Examiner submitted that his Honour did not find that the exception contained in the non-publication direction was too wide or beyond power.
In my view the reliance upon the passage extracted from Macaulay J is misguided. The validity or permissible scope of the exception was not a matter in contest before Macaulay J. The issue to be determined, once attention was directed to the terms of the exception in the non-publication direction, was whether the Chief Examiner had erred by purporting to exercise an implied power to revoke in circumstances in which he had ignored the terms of the order to be revoked. Moreover, Macaulay J, supported by observations made by Kaye J in CR v Attorney-General (Vic),[66] invoked the principle of legality to support a confined view of the Chief Examiner’s powers in the recognition that the coercive powers conferred upon the Chief Examiner represented a considerable incursion into fundamental common law rights. In doing so he viewed the terms of s 43 as a ‘safeguard’[67] that commanded ‘respect’.[68] As he put it:[69]
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, 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.
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 provision. This the Chief Examiner failed to do.
[66](2007) 173 A Crim R 343, 356-7 [51].
[67][2011] VSC 532 [39].
[68]Ibid [39].
[69]Ibid [39], [40] (emphasis added) (citations omitted).
Furthermore, Macaulay J noted that the sections of the Act to which his attention was drawn as encompassing the prosecution of offences, sub-ss (2) and (3) of s 68,[70] referred to prosecution not as part of the purposes for which evidence was obtained but rather as identifying a context that excused non-compliance with the Act or a court order:[71]
It may be noticed that, in these sections, [sub-ss (2) and (3) of s 68], 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.
[70]See [49] above.
[71]Ibid [30].
In this context, the judgment of Beach J in AJH v Office of Chief Examiner[72] should also be noted. In that case a non-publication order was made during the course of the examination of AJH by an examiner including a prohibition on the publication of information that might enable AJH to be identified as a person who had given evidence before the examiner. The direction provided that it was made pursuant to s 43(2) and that the examiner was ‘satisfied that a direction must be made because a failure to do so may prejudice the fair trial of [named persons and AJH] who have been charged with an offence’. On a later application from police the examiner rescinded the order on the ground that ‘the need to provide the relevant important evidence of [AJH] to ensure the fair trial of [named others] outweighs the personal safety and reputation issues that relate to [AJH] and his family’.[73] Beach J held that the examiner had the power to rescind a non-publication direction, following James, having not been persuaded that James was clearly wrong. However, he emphasised that the power to rescind a non-publication order cannot be exercised inconsistently with the requirements of s 43(2). In particular, he held that a non-publication order cannot be rescinded when the criteria that gave rise to the order still existed. His Honour said:[74]
[T]he power to rescind a non-publication direction is not at large. It cannot be exercised contrary to the provisions in s 43 of the Act. For example, s 43(2) provides that the Chief Examiner must give a non-publication direction 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. Section 43 does not permit the Chief Examiner … to give a non-publication direction that must be given because of the existence of the criteria set out in sub-s (2) and then to rescind that non-publication direction where those criteria continue to exist. To do so would deprive s 43(2) of its operative effect. By contrast, sub -s (4) provides a means by which a non-publication direction might be avoided even though the circumstances set out in sub-s (2) still exist.
[72](2011) 213 A Crim R 370.
[73]Ibid 376 [13].
[74]Ibid 377 [20] (emphasis added).
He continued:[75]
[S]uch power as there is to rescind a non-publication direction cannot be exercised contrary to the provisions in s 43 of the Act. The issue of a non-publication direction is mandatory ‘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’. Neither the text of the Act nor any object or purpose of the Act permits the Chief Examiner to rescind a non-publication direction where s 43 makes it mandatory for one to have been given. If the Parliament had intended any such constriction, then it could have so specified it in s 43. [76]
[75]Ibid 378 [22] (emphasis added).
[76]He also considered (at 379 [28]) that, given that s 20 identifies a number of specific circumstances where a confidentiality notice will cease to have effect, any implied power of rescission with respect to s 20 would be limited, for example, to circumstances where no confidentiality notice should have been given (because of fraud or mistake or the like) and would not provide a basis for recognizing any wider implied power of rescission, for example, because of a perceived need to provide evidence in a prosecution.
He further emphasised that the construction which he preferred did not have the consequence that a court hearing a prosecution might be deprived of relevant evidence because:[77]
[I]t is to be remembered that there is a mechanism under sub-ss (4) to (5) of s 43 by which such evidence might be made available to such a court.
[77]Ibid 381 [34].
I agree with Beach J.
The requirement under s 43(2) for a non-publication order to be made in certain prescribed circumstances is clearly both mandatory and ambulatory; that is, the order must continue for so long as the circumstances identified in s 43(2) exist. In particular, a non-publication order made under s 43(1) must continue in force and effect, relevantly, for whatever time the failure of an order to be in force might prejudice the safety or reputation of a person. I consider that Beach J was correct to conclude that the Act does not permit the Chief Examiner to rescind a non-publication direction where the safety or reputation of a person might be prejudiced if the order does not continue in force. This has implications for the scope of the permissible exceptions that can be created under s 43 (1), which I discuss below.
Furthermore, while sub-s (2) of s 43 identifies as a relevant circumstance the fair trial of a person charged with an offence, the circumstance is identified to mandate the making of a non-publication direction, not to support disclosure.[78] Section 43(2) requires the making of a non-publication direction when a failure to prohibit publication or communication might prejudice the fair trial of a person. This perhaps might apply, for example, in circumstances where the evidence of a witness reveals additional offences in relation to which that witness has not been charged arising out of the same course of conduct the subject of the trial, or, perhaps where prejudicial but irrelevant material is revealed relating to the witness or another person, perhaps a co-offender. Its inclusion within s 43(2) offers no support for a wide interpretation of the power to create exceptions. Nor does it support, more generally, the Chief Examiner’s understanding of the Act as having as one of its purposes the release of information for criminal prosecutions.
[78]See X7 v Australian Crime Commission [2013] HCA 29, [26] (French CJ and Crennan J).
In my view, the power to create exceptions under s 43(1) does not permit disclosure of evidence obtained from a witness, by the use of the coercive powers conferred on the Chief Examiner under the Act, either to the Victoria Police or to the Office of Public Prosecutions for the purpose of a prosecution.
As was observed in AJH, a clear focus must be maintained on the force and effect of s 43(2). It is mandatory for the power to make a non-publication order to be exercised where, relevantly, a failure to do so might prejudice the safety or reputation of a person. That is, whenever the absence of a prohibition on publication might prejudice the safety or reputation of a person a non-publication order must be made. Furthermore, as I discussed above, the scope of s 43(2) is ambulatory; it must continue in force for as long as its absence might prejudice the safety or reputation of a person. A non-publication order must remain in effect for whatever period the safety or reputation of a person is at risk. This has the consequence, as Beach J observed in AJH, that a non-publication order cannot be rescinded when to do so would mean that the safety or reputation of a person might be prejudiced. Such rescission would be inconsistent with s 43(2). It is not a question of balancing the likely damage to the safety or reputation of a witness against the evidentiary value of the answers given by the witness in a prosecution. To engage in that balancing exercise is to act contrary to what is required by s 43(2).
Section 25A of the Australian Crime Commission Act relevantly provides:
Confidentiality
(9) An examiner may direct that:
(a) any evidence given before the examiner; or
(b) the contents of any document, or a description of any thing, produced to the examiner; or
(c) any information that might enable a person who has given evidence before the 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 must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction 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.
(10) Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9).
(11) The CEO must not vary or revoke a direction if 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.
Courts
(12) If:
(a)a person has been charged with an offence before a federal court or before a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;
the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.
(13) If:
(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and
(b) the court, after examining the evidence, is satisfied that the interests of justice so require;
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
The majority of the Full Court described what was then s 59(7) in this way:[103]
Under s 59(7), the CEO may give to any law enforcement agency any information that is in the Commission’s possession that is relevant to the activities of that agency, if it appears to the CEO to be appropriate to do so and to do so would not be contrary to a law of the Commonwealth, or a State or a Territory that would otherwise apply.
[103](2010) 185 FCR 258, 270-1, [79] ((Emmett and Jacobson JJ) original emphasis).
Emmett and Jacobson JJ held that it was necessary to adopt a construction that gave a consistent and harmonious operation to the statute as a whole. This had the effect that information could not be provided under s 59(7) if that was inconsistent with an existing non-publication direction that had been given under s 25A(9) because disclosure would thereby be contrary to a law of the Commonwealth. They said:[104]
The duty and power imposed by s 12(1) on the CEO and the Commission must be read as being subject to the protective prohibition in s 25A(9). Further, the authority given to the CEO under s 59(7) to give information is qualified by reference to action contrary to a law of the Commonwealth. Clearly enough, where a direction under s 25A(9) is in force, giving information contrary to that direction would be giving information contrary to a law of the Commonwealth that would otherwise apply. A direction under s 25A(9) would also operate in relation to the other powers and authorisations dealt with in s 59. Thus, s 25A, and provisions such as ss 12 and 59, dealing with the assembling and giving of evidence and the dissemination or furnishing of information, are capable of working harmoniously so as to ensure that investigation into serious organised crime and the dissemination of intelligence gathered by the Commission proceed in a timely manner, without prejudicing the fair trial of an accused person..[105]
[104]Ibid 277 [108].
[105]See also R v Seller [2013] NSWCCA 42, [107] (where Bathurst CJ held that the power in s 59(7) was subject to a direction given pursuant to s 25A(9), agreeing with Australian Crime Commission v OK (2010) 185 FCR 258 and R v CB, MP v R [2011] NSWCCA 264, to that effect).
The Australian Crime Commission Act has since been amended[106] to make explicit the relationship between the sections in the manner understood by Emmett and Jacobson JJ. Section 59AA now contains the authorisation of disclosure of information to other law enforcement agencies and government bodies. Section 59AC provides:
Confidentiality in relation to examinations
Sections 59, 59AA and 59AB are subject to any relevant direction as in force under subsection 25A(9) (confidentiality in relation to examinations).[107]
[106]The Australian Crime Commission Act was amended to by the Crimes Legislation Amendment (Powers And Offences) Act 2012 (Cth) (the ‘Amending Act’). The relevant amendments were found in Sch 2 of the Amending Act. Taking effect from 5 April 2012, cl 1 of Sch 2 of the Amending Act repealed the heading of s 59 and inserted the heading ‘Providing reports and information to members of Parliament’. Taking effect from 25 June 2012, sub-ss (7)-(11) of s 59 were repealed by cl 26 of Sch 2 of the Amending Act, and were replaced with a sub-section (7) entitled ‘Information for members of Parliament’. Clause 27 of Sch 2 of the Amending Act inserted ss 59AA, 59AB, 59AC and 59AD.
[107]Section 59 deals with disclosure of information to members of Parliament and s 59AB deals with disclosure of information to private sector bodies.
Applying similar reasoning to that adopted by Emmett and Jacobson JJ, disclosure cannot occur under s 67 of the Act where that would be in contravention of a non-publication order under s 43(1) because such disclosure would be contrary to a law of the State. A non-publication order takes priority, or ‘trumps’, a general provision authorising disclosure.
(2) Did the exceptions in the non-publication order fail to comply with the specificity required?
In support of those grounds in the Notice of Contention that raised the issue of the level of specificity required in the formulation of the exceptions, Ms Brown submitted that the Chief Examiner, in making the exceptions he did, acted beyond the power conferred by s 43(1), and therefore unlawfully, by directing that the evidence was to be published in the following ways:
(1) by members of Victoria Police lawfully engaged in the investigation of an organised crime offence or an offence under the Act;
(2) by members of Victoria Police for the purpose of prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence or an offence under the Act;
(3) by the Office of Public Prosecutions for the purpose of a prosecution of an offence instituted as a result of an investigation carried out by Victoria Police into an organised crime offence or an offence under the Act.
In this context the relevant feature of s 43(1) was that it authorises the making of exceptions ‘in such manner, and to such persons, as the Chief Examiner specifies’.[108]
[108]Emphasis added.
It was argued that the first of these exceptions, namely, to allow publication ‘by members of Victoria Police lawfully engaged in the investigation of an organised crime offence or an offence under the Act’ was made beyond power because it failed to comply with the requirement that the Chief Examiner specify to whom and in what manner disclosure could occur. In particular, it was submitted that: (1) the exception failed to identify the persons by whom the coerced information may be published, with appropriate specificity, as ‘members of Victoria Police’ is a category of many thousands of people; (2) the exception failed to identify any person or class of persons to whom the coerced information may be published; (3) the exception failed to identify the ultimate recipients of the coerced information; (4) the exception nowhere identified the manner in which the coerced information was to be published; and (5) the exception purported to authorise publication by police members lawfully engaged in the investigation of an organised crime offence as opposed to the organised crime offence the subject of the coercive powers order.
Ms Brown contended that, insofar as the Chief Examiner sought to rely on the presumption of regularity[109] to remedy any deficiency in the form of specification, such reliance could, at best, require that references to ‘an’ organised crime offence should be read as ‘the’ organised crime offence the subject of the relevant coercive powers order but it could not serve to remedy the other deficiencies identified. The same response can be made in respect of each of the exceptions.
[109]See Watson v Lee (1979) 144 CLR 374, 382; Johnson v Director of Consumer Affairs [2011] VSC 595, [56]–[60].
Moreover, it was submitted, there would be no basis for the application of the presumption of regularity, or, alternatively, the presumption was rebutted, because the cumulative effect of the deficiencies of specification has the effect that the exceptions contained in the non-publication order are wholly lacking in clarity and particularity. This would have the result that the non-publication order either exceeded the exception power contained in s 43(1) or failed to comply with a condition which regulated the exercise of the power rendering that exercise invalid, given that there can be discerned in the Act a legislative purpose to invalidate any exercise of the powers to make exceptions that fails to comply with the condition of specificity.[110]
[110]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 388-391 [91]-[93].
With respect to the second and third exceptions as characterised above,[111] each of them purports to allow publication by the Victoria Police and by the Office of Public Prosecutions for the purposes of prosecution. The complaint made was in similar terms to that made against the first exception, namely, that they each purport to authorise publication by the members of a particular class without specifying to whom the information may be published; the categories of persons authorised are broad; they are incapable of specific identification, and the disclosure is limited only by the proviso that the purpose of the publication has to be for prosecution of an organised crime offence (putting to one side the difficulties canvassed above arising from that purpose and the need to comply with the particular mechanism the Legislature has provided). Moreover, the exceptions do not specify the manner in which any of the publication is to take place.
[111]At [113] above.
Ms Brown submitted that the practical effect of each of the three exceptions is that any police member or member of the Office of Public Prosecutions could publish the information she gave to the Chief Examiner in a newspaper if he or she was at the time lawfully engaged in an investigation into any organised crime offence. It permitted the police to have a ‘blank cheque’ on disclosure. Moreover, the recipients of the information would be unconstrained in the ways they could republish the information. Such an absurd consequence reveals, it was submitted, that the exceptions created are of such a width that they must have been made beyond power and in contravention of the requirement of specificity.
In response, the Chief Examiner submitted that: (1) on a proper analysis of the non-publication order, it is clear to which persons, identified by their class, the evidence may be published or communicated; (2) the words ‘in the manner’ in s 43(1) refer to the form of the evidence to be published, not the means by which the evidence is published; and (3) there is no obligation under the Act to identify the ‘ultimate recipients’ of the evidence.
It could not be assumed, it was argued, that the Chief Examiner would know the specific persons who made up the task force or investigative teams for the particular organised crime offence identified in the coercive powers order. Specification could properly proceed by way of class, provided that the class was defined with clarity and precision, and it was possible to determine at any time with certainty that any particular person was or was not within the class. The class could be defined in such a way as to accommodate the fact that the composition of investigative teams may change from time to time without the need for variations to be sought to non-publication orders or the exceptions contained therein.
Moreover, the Chief Examiner submitted, a permissible class of persons would be ‘members of Victoria Police’. All members are subject to general confidentiality obligations pursuant to s 127A of the Police Regulation Act 1958, in
addition to their obligation to maintain secrecy under s 68 of the Act.[112] It was submitted that to restrict the form of specification required by s 43(1) would be inconsistent with the Chief Commissioner’s powers in s 67 which, as noted above, permits sharing of information to ‘law enforcement agencies,’ with no obligation on the Chief Commissioner to identify specific persons to whom the information may be disseminated or to restrict the use to which the information can be put.
[112]As described above, s 68 creates an offence for a member of the police force to make a record of, divulge or communicate, any information acquired in the course of the performance of duties or functions under the Act except for the purposes of the Act or otherwise for the purpose of investigating or prosecuting ‘an offence’. The Chief Examiner relied on s 68 to suggest that there is no limit on the use to which Victoria Police can make of information obtained pursuant to a coercive powers order. In my view, the fact that an element of the offence refers to ‘an offence’ rather than ‘an organized crime offence’ or ‘the organized crime offence the subject of a coercive powers order’ is immaterial. Section 68 creates a broad offence and is not confined to the breach of a non-publication order under s 43 or tied to the obtaining or carrying out of a coercive powers order.
With respect to the specification of the ‘manner’ in which the evidence must be published, the Chief Examiner submitted that what is intended is that there be a specification of, for example, whether the evidence be published in the form of a summary, transcript, audio or video. In the non-publication order, the Chief Examiner made an exception for the publication of the evidence itself, together with the contents of any document, or a description of any thing produced or any information that might enable a person to be identified. It was submitted that this was to be contrasted with an exception permitting publication of a summary of the evidence only.[113]
[113]See, for example, Bartlett v The Queen [2012] WASC 503, [7]–[8].
I consider that the requirement for specification under s 43(1) should be read as demanding clarity and precision. This is in accordance with what Nettle JA said in Harofam Pty Ltd v Scherman[114] when he reviewed the authorities on the meaning of ‘specifies’ in the context of considering s 9AE(2) of the Sale of Land Act 1962 and said:[115]
[114][2013] VSCA 104.
[115]Ibid [11]–[15] (citations omitted).
As Mandie JA said in Clifford, s 9AE(2) provides for a time limit of 18 months within which a plan of subdivision is to be registered or, if the contract so specifies, ‘another period’ in substitution for the statutory period, after which a purchaser may rescind if the plan is still unregistered.
As was observed by Von Doussa J in Andersen v Umbakumba Community Council, the plain and ordinary meaning of the verb ‘specify’ is:
To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail. …
The meaning of the verb ‘specify’ has also recently been discussed in Vanstone v Clark where Black CJ said:
… ‘Specified’ behaviour imports requirements of clarity and precision and this statutory concept is not satisfied by ‘vague generalities’ … Thus in Jolly v Yorketown District Council, Barwick CJ and Owen J considered that a statutory requirement for a notice to ‘specify’ certain matters required that it do so ‘in explicit terms’. The significance of this statement is illuminated by reference to Kitto J’s judgment in the same case where he stated that to specify means ‘to give not by inference but by direct statement’. To underline the point (if that be necessary), in Federated Engine-Drivers and Firemen’s Assn of Australasia v Broken Hill Proprietary Co Ltd, Barton J said that [[t]hings specified must be specific things. Here all is general.’
In Norvill v Chapman, Burchett J said:
Courts which have considered the meaning of ‘specify’ in various contexts have treated it as a strong word. In Gantry Acquisition Corp v Parker & Parsley Petroleum Australia Pty Ltd, I referred to it as ‘a word which signifies precision’. I added:
… [N]o change wrought by the contextual currents enveloping the word ‘specify’ … can so transform it that it fails to signify a requirement of clarity and precision … Judicial attempts to expound the meaning of the word ‘specify’ have repeatedly fixed upon unambiguous clarity as being connoted by it …
It follows, as Mandie JA said in Clifford, that in terms and in context the plain and ordinary meaning of s 9AE(2) of the SLA is to require a specific period of time in which the plan of subdivision must be registered, at the time when the contract is made.
In my view, it is clear that one of the purposes of specification in an exception to a non-publication order is to enable persons to gauge whether conduct they propose to engage in will be a contravention of the order. This is necessary because s 43(3) provides that a person who makes a publication in contravention of a direction under s 43(1) is guilty of an indictable offence and liable to imprisonment to a maximum of five years. As a contravention of the order carries penal sanctions, it is important for the Chief Examiner to identify with certainty and precision the persons to whom the information can be published.
I accept that the Chief Examiner is correct in submitting that the presumption of regularity should apply to actions taken by him, including the manner in which he has drafted exceptions from a non-publication order he has made. In my view, the exceptions to any non-publication order could not extend beyond publication relevant to the investigation of the particular organised crime offence identified in the coercive powers order obtained from a court. This is reinforced by the restriction imposed by s 36(1) of the Act which limits the questions the Chief Examiner can ask to those relevant to the investigation of the organised crime offence to which the examination relates.[116] I consider that the power to authorise the release of information acquired in the exercise of coercive powers, authorised by reason of a coercive powers order obtained from a court, cannot lawfully travel beyond the investigation of the organised crime offence on the basis of which the coercive powers order was obtained. On the basis that the Chief Examiner should be presumed, as far as possible, to have acted within power, there is something to be said for the view that wherever the exceptions in the non-publication order refer to ‘an organised crime offence’ they should be read as referring to the particular organised crime offence the subject of the coercive power order, namely, offences relating to [redacted]. However, there ought be no occasion to apply the presumption of regularity if the exceptions made to non-publication orders properly specified the particular organised crime offence relevant to the order, as they should do. For that reason, I consider that reliance on the presumption of regularity is here insufficient to resolve the problem latent in the non-publication order.
[116]See [46] above. The Victorian Inspectorate oversees this requirement: s 51(b) and s 53(1)(c).
I consider that the Chief Examiner was correct in submitting that the specification of the persons to whom information obtained in confidence can be published can lawfully be identified as a class, and need not be identified by their individual names. However, the class should be specified with particularity as those members of Victoria Police investigating the particular organised crime offence the subject of the coercive powers order. To specify ‘any member of Victoria Police’ is wrongly to ignore the limits of the authority originating in the coercive powers order on the basis of which the coerced information was obtained.
What I do not accept is that, because s 67 imposes no restriction on what can be done with information provided by the Chief Commissioner to another agency, this should be read as implying that no restriction should apply to the use that can be made of the information obtained under s 43(1) by those members of Victoria Police who are authorised by the Chief Examiner to receive it. First, as I indicated above, while it must be recognised that s 67 authorises the exchange of information, it is a separate channel of information exchange between various institutions engaged in law enforcement. Second, one cannot infer from considerations relating to the channel of information exchange under s 67 that the same considerations will apply to the specific mechanism provided for under s 43(1) for the disclosure of information obtained through the use of a court order (ss 43-45) and otherwise prohibited from publication. Thirdly, the information cannot be used for the purposes of prosecution for the reasons given above. Fourthly, in my view, s 43(3) provides an unequivocal restriction on the use that can be made of the information obtained by reason of an exception to a non-publication direction; namely, that the information cannot be further published to any persons who do not fall within the class specified by the Chief Examiner as lawful recipients of the information on pain of the commission of an indictable offence. There is no blank cheque provided. If the information is obtained not through s 43(1) but through the separate channel for the exchange of information authorised by s 67, it will not be subject to the same constraints although, as discussed above, it will be subject to any extant relevant non-publication order.
These observations provide a basis for rejecting Ms Brown’s submission that the non-publication order was defective because it failed to identify the ultimate recipients of the coerced information and would permit police officers investigating organised crime offences to publish that information in a newspaper, or other media. I consider that a police officer who was authorised to receive coerced information, by reason of an exception to a non-publication order, would commit an indictable offence, punishable by up to five years’ imprisonment, if he or she re-published that information to persons who were not specified (albeit by class) in the order. To my mind, s 43(3) has the effect that there ought be no ‘ultimate recipients’, as Ms Brown described them. The only lawful recipients are those specified by way of exception in a non-publication order. This again reinforces the importance of the specificity required of the Chief Examiner. I therefore accept the Chief Examiner’s submission that there is no obligation to specify the ‘ultimate recipients’ of the information. That is because there ought be no such persons beyond the persons specified in the exceptions, subject to any lawful exchange of information pursuant to s 67 or by means of an order of a court pursuant to s 43.
With respect to the requirement for the ‘manner’ of publication to be specified within the exception, it is my view that this requires the Chief Examiner to specify the means by which the coerced information can be published or communicated, for example, in full or in part, by video, audio or written transcript. It is noteworthy that here there was no specification given of the form of the evidence which could be published in accordance with the exceptions, beyond not restricting it to a summary. In my view, the manner of the permitted publication requires more, namely, as indicated, there ought be a specification of whether the evidence can be transmitted by video, audio, DVD, and so on.
It follows that I accept grounds 1(a) and (b) of the Notice of Contention and reject, for the reasons I have given, ground 1(c) of the Notice of Contention.
Conclusion
In my opinion, the judge was correct in his declaration that part of the non-publication order was invalid. I would dismiss the appeal.
Furthermore, I uphold grounds 1(a), (b) and (d) of the Notice of Contention and affirm his Honour’s judgment on these additional grounds.
I reject ground 1(c) of the Notice of Contention.
GARDE AJA:
I agree with Tate JA.
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