YG v Chief Examiner
[2012] VSC 385
•4 September 2012
| Not Restricted | |
| IN THE SUPREME COURT OF VICTORIA | Redacted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 00400
| YG | Plaintiff |
| v | |
| CHIEF EXAMINER | Defendant |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 April 2012, 9 July 2012 and further written submissions on 30 July 2012 | |
DATE OF JUDGMENT: | 4 September 2012 | |
CASE MAY BE CITED AS: | YG v Chief Examiner | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 385 | |
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COMMON LAW – Major Crime (Investigative Powers) Act 2004 – Sections 1(a), 14, 15, 43, 67, 68 – Purpose of the Act - Powers of the Examiner – Non-publication Order – Exceptions – Validity of Exceptions – Whether exceptions enabling coerced evidence to be used for prosecutions are valid – Whether Chief Examiner or delegate investigator – Procedure followed by the Examiner – How coerced evidence made available to a Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F. H. Todd | Ellinghouse & Lindner |
| For the Defendant | Mr A. G. Southall QC with Ms R. J. Sharp | The Office of the Chief Examiner |
HIS HONOUR:
Judgment authorised for publication
[This judgment is authorised for publication. The principal judgment contains the full reasons of the Court and has been available to the parties. However, in order to protect the identity of the plaintiff ‘YG’, significant material of a factual nature has been omitted from this version.]
The plaintiff seeks relief by way of declaration, certiorari and prohibition. She is a person who, on 8 November 2011, appeared before an Examiner appointed under s 21 of the Major Crime (Investigative Powers) Act2004 (“the Act”). The inquisitorial hearing was conducted pursuant to authorising coercive powers and orders of this Court made on 16 September 2010 and extended on 14 September 2011. On 7 October 2011 a Confidentiality Notice was issued pursuant to s 20 of the Act. The purpose of that notice was to ensure that the plaintiff was aware that under the Act it is an offence to disclose to any person, without reasonable excuse, the fact of her being summonsed to give evidence before the Examiner.
The plaintiff had been summonsed to attend the hearing before the Examiner pursuant to s 15 of the Act. The “Witness Summons” provided that she must attend “…to give evidence before the Examiner in relation to…[redacted]…”. The particular Examiner, Mr McBurney, had apparent authority to conduct the examination of the plaintiff delegated to him by the Chief Examiner under s 65 of the Act.
At the outset of the hearing before the Examiner, and later during the hearing, a question arose about the need for the Examiner to make what were described as “non-publication orders”. Orders were eventually made by him that included exceptions pursuant to s 43(1) of the Act to which I will refer below. It is the exceptions to the orders and their effect in relation to the plaintiff that are at the centre of the issues in this proceeding. I have concluded that, in part, these exceptions are invalid.
By originating motion, the plaintiff seeks the following relief:
1.A declaration that:
(a)The direction made pursuant to s 43(2) of the Major Crime (Investigative Powers) Act 2004 by the defendant of 8 November 2011 (“the direction”) was not made in accordance with law, by reason of the ground/s of this application;
(b)The direction made by the defendant of 8 November 2011 is invalid by reason of the ground/s of this application.
2.Relief in the nature of certiorari to quash:
(a)The decision of the defendant to allow the publication of the evidence of the plaintiff by members of Victoria Police for the purposes of prosecution as set out in exception (c) of the direction of 8 November 2011;
(b)The decision of the defendant to allow the publication of the evidence of the plaintiff by the Office of Public Prosecutions for the purposes of the prosecution of an offence as set out in exception (d) of the direction of 8 November 2011.
3.Relief in the nature of prohibition to restrain the defendant and his agents or delegates from:
(a)Directing that the transcript of the plaintiff’s evidence be exempt from the non-publication direction of 8 November 2011 and therefore be published or communicated:
(i)By members of the Victoria Police for the purposes 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. (The exception at (c) in the direction of 8 November 2011);
(ii)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 (The exception at (c) in the direction of 8 November 2011).
4.Injunctive relief to prevent evidence of the fact that the plaintiff has given evidence before the defendant, as well as the substance of that evidence being published to any person except as set out in (a) and (b) of the exceptions in the direction of 8 November 2011.
5.Such further or other relief as this Honourable Court may think fit.
The circumstances of the non-publication order
The issue I must deal with turns on both the procedure followed by the Examiner in the making of the non-publication order and its terms. Such a non‑publication order is made pursuant to s 43 of the Act, which includes the following:
(1)The Chief Examiner may direct that—
(a)any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
I will deal in more detail with the other parts of s 43 later in these reasons.
At the commencement of the hearing before the Examiner, Mr McBurney indicated to the plaintiff that he was required to consider her safety or reputation and needed to enquire of her whether she had any concerns about her personal safety or reputation, or that of anybody connected with her, in relation to her appearance on that day.[1] Because the plaintiff did not appear to understand his introductory observation, the Examiner then explained that it might occur that, as a result of an application by police, her evidence before him would be released to certain persons who had been charged with offences in relation to the particular investigation. Asked whether she would have concerns about that occurring the plaintiff replied in the affirmative. An opportunity was then given to counsel who had attended with the plaintiff to take instructions from her on that issue.
[1] Transcript, p 5.
On the resumption of the hearing Mr Hartnett of counsel, for the plaintiff, told the Examiner:[2]
[2] Transcript, pp 6-7.
However, she believes that if any of what she says is released to these other people, 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. She …[Redacted]…
The Examiner, on hearing that said:
Yes, very well, I accept that, Mr Hartnett.
The Examiner then pronounced the following order:[3]
The Examiner directs that:
(a)any evidence given before the Examiner; or
(b)the contents of any document or a description of anything 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 by the Chief Commissioner of Police exercising his or her right of information sharing as detailed in section 67 of the Major Crime (Investigative Powers) Act 2004 or by members of the Victoria Police lawfully engaged in the investigation of an organised crime offence or by members of the 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 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. This direction is made pursuant to the provisions of section 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 the safety or reputation of a person [YG] in relation to whom the summons was issued, or the fair trial of persons…[Redacted]…who have been charged with offences (emphasis added).
[3] Transcript, pp 7-8.
To that point therefore, albeit that no evidence had been given about it, the Examiner had indicated an acceptance that there were risks to the plaintiff’s safety or reputation and had pronounced an order in which his satisfaction about those matters was incorporated.
The Examiner then said:[4]
Mr Hartnett, what I propose to do is hear the evidence of the witness and I will provide you with an opportunity to address me at the conclusion of the examination hearing as to whether there ought to be any variation of that non-publication direction. 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. After I have heard the evidence of this witness and heard submissions from you I’ll consider whether a more restrictive non-publication direction should be made in the circumstances of this witness (emphasis added).
[4] Transcript, p 8.
The evidence of the plaintiff
After the non-publication order was made, the Examiner attempted to explain to the plaintiff a variety of other aspects of the process upon which he had embarked, took the plaintiff’s personal particulars and proceeded to examine the plaintiff. On most occasions when she was asked whether she understood what was being said to her, she said that she did.
I will now briefly summarise the plaintiff’s evidence…[Redacted]…
[Paragraphs 13-18 have been removed to comply with non-publication orders]
…[Redacted]… More importantly, it is apparent that no questions were asked of the plaintiff which were directly relevant to, or would amplify the need for, a more restrictive non-publication order. It is not clear to me why that did not occur. At the conclusion of the questioning the following occurred:[5]
EXAMINER: Very well. Thank you for your evidence, [YG]. I don’t have any more questions for you. Mr Hartnett, as I indicated at the outset, you have the opportunity to question the witness to clarify or explain away any matters that have been raised in her evidence. Do you have any questions for the witness?
The transcript records the plaintiff as answering “No” but I assume that counsel, in fact, said that.
[5] Transcript, p 95.
The Examiner then said:
Mr Hartnett, I’ve made a non-publication direction which is Exhibit A which permits police to use the evidence, if they deem it relevant, in any prosecution before a court. There’s nothing I’ve heard from this witness so far, subject to what you might say, that would persuade me to vary from that direction. There’s been no evidence led before me of threats to her. But I want to give you the opportunity to address me on that and, if need be, get instructions from the witness. Do you have any submissions to make about the non-publication direction I’ve made?
The first thing to note about those comments is that the Examiner inserted the exception to the order to facilitate the use of the plaintiff’s evidence before him in prosecutions before a court. The second observation I would make is that the Examiner’s comment that “there has been no evidence led before me” is curious since he was conducting the examination and did not ask, in terms, whether the plaintiff had at any time been threatened or whether, for identifiable reasons, she feared repercussions or damage to her reputation once it was known that she had appeared before the Examiner. It is also true that counsel representing the plaintiff did not seek the opportunity to lead from his client any evidence about that. That omission is complicated by the fact that no invitation was extended by the Examiner to counsel so to do. Pursuant to s 36 of the Act, a legal practitioner representing a witness appears to be constrained by what the Chief Examiner thinks is appropriate. However, if the Examiner was concerned to have evidence which would inform his decision about the final version of the non-publication order, an invitation could have been extended to counsel to lead that evidence.
However, instead of that happening Mr Hartnett submitted that it would be more appropriate, if the plaintiff was to be later called as a prosecution witness, for the police to obtain a statement from her in the usual manner. As Mr Hartnett had submitted, while some other evidence given by the plaintiff had some intelligence value it is difficult to see how much of it would be particularly relevant and probative. Mr Hartnett then added:[6]
[6]Transcript, p 96.
But just by circumventing those 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 any 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 background information in relation to those people. 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.
The Examiner then acknowledged the submission by saying:
Yes.
And Mr Hartnett continued:
And that’s a real possibility. Now, unless there’s some good reason in terms of any of her evidence having some probative value that you can see then if it’s limited to members of the Victoria Police force lawfully engaged in the investigation then they can take the matters further using the powers that they have. Thank You.
So as I follow it, the submission being made on behalf of the plaintiff was not that the plaintiff was not available as a prosecution witness but that if her evidence was to be relevant and probative in any subsequent prosecution the appropriate way for it to be formalised was by way of the police taking a statement from her which might then form part of a subsequent prosecution brief.
In his remarks following that submission, the Examiner dealt with the relevance of the plaintiff’s evidence and then raised with counsel the judgments of the trial division of this Court in AJH v Chief Examiner[7] and also REG v Chief Examiner.[8] He then enquired whether the plaintiff’s counsel was familiar with those cases and it seemed that he was not, at least as to one of them. The Examiner said:[9]
What I propose to do is have the legal officer from this office provide you with those two decisions and two previous decisions and I will offer you the opportunity to either provide written submissions to me on the question of the proposed variation of the non-publication direction or alternatively appear before me to make further submissions. You and your client ought to be afforded the opportunity, natural justice, to ensure you’re in a position to make submissions to me before there is any release of your client’s evidence.
He concluded that part of his comments by indicating that he would “direct Victoria Police that there be no publication or communication of this witness’s evidence pursuant to paragraphs (c) and (d) of the non-publication direction until such time as you’ve had that opportunity.”
[7][2011] VSC 499.
[8][2011] VSC 532.
[9]Transcript, p 97.
However, that was not the end of the discussion and in response to an enquiry by counsel, the Examiner said:
Mr Hartnett, well, perhaps the way I would put it is that I accept that there might be prejudice to the safety or reputation of the witness based upon the fears 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. Firstly 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.
The difficulty in this debate is that it continued throughout in the absence of any evidence. The plaintiff had given no evidence about her perception of threats to her safety or reputation yet despite that, the Examiner had accepted that a perception of such a threat existed. I do not understand the factual basis on which the Examiner expressed this opinion. It is clearly speculation.
Having noted that even by this late stage in the proceeding there was no evidence, the following exchange then occurred between the Examiner and the plaintiff:[10]
[10]Transcript, pp 102-103.
EXAMINER: [YG], what – what all that means is Mr Hartnett will be able to advise you as to your position, but you need to understand when you leave here today you are free to speak with both of your lawyers but you cannot talk to other witnesses about the evidence you’ve given. Do you understand that?
PLAINTIFF: Yes…
…[Redacted]
EXAMINER: Well, Mr Hartnett has said to me that’s your concern and he’s made submissions to me about that. I am going to give him an opportunity to make further submissions and then I will make a decision on whether your evidence remains secret or whether Victoria Police can use your evidence in the matters currently before the court.
PLAINTIFF: Yep.
EXAMINER: But I understand what you’re saying about this.
PLAINTIFF: Yep, thank you.
On 8 November 2011, a letter was written by the Acting Principal Legal Officer for the Chief Examiner to the plaintiff’s solicitor providing details of relevant authorities and outlining arrangements for any further submissions to be made on the matter.
On 22 November 2011, the solicitor for the plaintiff wrote to the Chief Examiner’s Office and submitting that the considerations of s 43 of the Act require the Chief Examiner to give a direction that did not include the proposed paragraphs (c) and (d).
The letter went on:
[YG] asserts that allowing the use of her evidence in accordance with proposed (c) and (d) well might prejudice her safety and also her reputation and thus, [YG] requests that the Chief Examiner not allow her evidence to be provided to others as contemplated by paragraphs (c) and (d).
There is no way in our submission that the Chief Examiner can soundly guarantee that her safety and reputation might not be jeopardised if her evidence is published.
…[Redacted]…
An Act such as the Major Crimes (Investigate Powers) Act provides extraordinary coercive powers in a departure from the usual rights enjoyed by 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 – particularly when the evidence itself pertains to comparatively minor illegalities – is unfair and unsafe.
On 13 December 2011, the Principal Legal Officer replied to the solicitor for the plaintiff and, dealing with the merits of the submission which had been incorporated into the previous letter, said:
Examiner McBurney has considered your letter dated 22 November 2011 and does not propose to vary the terms of the non-publication direction made at your client’s examination hearing. He has directed that you been notified in writing of his decision and that you be given seven days to make an application of the Supreme Court of Victoria to challenge or review the terms of the non-publication direction.
Unless application is filed with Supreme Court within seven days of the date of this letter your client’s evidence will be released and Victoria Police will serve it…[Redacted].
It does not seem to me that the responding letter addressed the fundamental issue raised on behalf of the plaintiff about the effect of the publication of the evidence to the persons named in that letter that the reputation or safety of the plaintiff might suffer.
It is against that factual background that the matter was argued before me.
Summary of my conclusions
The Examiner stated that he had made the order on the basis that he contemplated that the evidence that the plaintiff gave before him would be given to the police for the purpose, not just of investigation, but of prosecution, and thus provided to the persons charged. I have concluded that the exceptions allowing the evidence to be used in this way were not valid exceptions under the Act and therefore will be set aside. I will later explain my reasoning. Further, the order had a provisional aspect to it because he said that he would hear the evidence of the plaintiff and further submissions from counsel before deciding whether a more restrictive direction should be made. It might therefore have been expected that the question of the plaintiff’s concerns would be the subject of enquiry by the Examiner so as to inform the review at the conclusion of the hearing. However, this was not done and the non-publication order was made and continued without evidentiary basis. Thus, those parts of the non-publication order which will continue under this decision will be remitted to the Examiner for reconsideration on the basis of evidence.
The parties’ submissions
In argument before me, the submissions of the parties were made in the context of a number of recent cases, including Brent James v Chief Examiner,[11] E v Chief Examiner,[12] AJH v Chief Examiner,[13] and REG v Chief Examiner.[14] Each of these cases concerned the authority of the Chief Examiner to rescind orders made under s 43 of the Act.
[11][2006] VSC 384 per Morris J (“James”).
[12][2010] VSC 353 per Coghlan J (“E”).
[13][2011] VSC 499 per Beach J (“AJH”).
[14][2011] VSC 532 per Macaulay J (“REG”).
I will briefly deal with these cases but it is important to remember that they were each concerned with circumstances where the Chief Examiner had originally considered an order was appropriate and then, in the course of enabling the evidence to be used in a criminal prosecution, decided to revoke it. In this case, the issue concerns the exceptions that were inserted in the order at the time that it was originally made.
In E v Chief Examiner,[15] Coghlan J was concerned with the decision of the Chief Examiner to rescind a non-publication order made in respect of the examinee plaintiff. In support of the originating motion, the plaintiff argued that the Chief Examiner did not have the power to make such an order or that he did so erroneously. In that case, the Chief Examiner rescinded the order so that the evidence of the plaintiff could be used in a case against another person. Relevantly to the issue in this case, Coghlan J concluded that: [16]
The directions contemplated by s 43(2), even though expressed in mandatory terms, are still made pursuant to s 43(1). It follows that the power given to the Chief Examiner with reference both to ss 43(1) and (2) of the Act include the words “except in such manner, and to such persons, as the Chief Examiner specifies”.
[15][2010] VSC 353.
[16]At [14].
Dealing with whether or not the Chief Examiner had the authority under those sections to rescind the order, Coghlan J concluded:[17]
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 be 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 regard the matter as confidential.
I am also satisfied that there would, if necessary, be an implied power to allow rescission.
[17]At [17].
The so-called divergence of approach in this Court is said to be demonstrated by the judgment of Beach J in AJH.[18] That case also involved the Chief Examiner rescinding an order previously made over the objection of the person who had been called to be examined. On the issue of whether the Chief Examiner had the power to rescind the order, Beach J concluded:[19]
Morris J held in James v The Office of the Chief Examiner that the power given to make a direction under s 43(1) of the Act included a power to rescind such a direction. In E v Chief Examiner, Coghlan J agreed with Morris J’s construction of s 43 of the Act.
This aspect of the construction of s 43 of the Act may have been capable of debate before James was decided. However, I am bound to follow James unless I am persuaded that it is clearly wrong. I am not so persuaded. Applying James, the examiner in this case had power to rescind the non-publication direction given under s 43 of the Act.
[18][2011] VSC 499.
[19]At [18].
However Beach J was of the view that the power to rescind was not a discretion at large and had to be exercised within the meaning of s 43 of the Act. For example, the order could not be rescinded where the criteria that gave rise to the original order continued to exist.
Only weeks later, Macaulay J delivered judgment in REG.[20] As His Honour noted, that was a case where the examination of the plaintiff was accompanied by a notice under s 20 of the Act stating that the summons was confidential and that, without reasonable excuse for doing so, the plaintiff could not disclose its existence to any person. The Chief Examiner also made a direction under s 43 of the Act. After the plaintiff had been examined and his evidence obtained, the notice under s 20 was revoked as was the non-publication direction. That was done, as Macaulay J noted, “…despite the unchanged circumstance that, without the orders, the safety or reputation of the plaintiff and his family were or might be prejudiced”. As Macaulay J noted this was a case where the non-publication order carried an exception which provided:
“…except ... by members of the Victoria Police ... for the purpose of a prosecution instituted as a result of an investigation carried out by Victoria Police into an organised crime.”
[20][2011] VSC 532.
In the course of his judgment, Macaulay J said:[21]
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 prohibition. This the Chief Examiner failed to do.
[21]At [39].
His Honour concluded the matter in favour of the plaintiff on the basis that the non‑publication direction was revoked without consideration of its full terms – in particular the exception – which, on reflection, may have enabled the outcome that was sought to be achieved by the revocation.
I assume the Examiner in this case felt particularly authorised by the following dicta of Macaulay J:
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.
In the context of those prior decisions, the submissions of the parties to this matter covered a number of issues, including:
· whether there was a divergence in the judgments of this Court in the manner which related questions had been dealt with. That issue raised an analysis of the cases in this Court, discussed above;
· the difference between revocation of non-publication orders and the making of exceptions in such orders pursuant to s 43(1) of the Act;
· the effect of the mandatory provision in s 43(2) of the Act;
· the considerations to be taken into account in the making of exceptions and whether, in this case, those matters were properly considered;
· what findings did the Examiner actually make concerning prejudice to the reputation and/or safety of the plaintiff;
· the use of the evidence in prosecutions; and
· in later written submissions, a discussion of unreasonableness under the Wednesbury doctrine.
Analysis
As will become clear later in these reasons, I accept the plaintiff’s submission that the exceptions made by the Examiner were not made in accordance with law and were invalid. However, I also consider that there is a threshold issue which leads to the same result but is a more fundamental question about the interpretation of the Act and the role of exceptions.
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).
Section 43 of the Act and the provision of evidence for the purpose of prosecution
The Act provides in s 43(1) that various specified matters must not be published or communicated “…except in such manner, and to such persons, as the Chief Examiner specifies.” Relevant matters to be considered in the exercise of this decision are not specified in the Act. The legitimacy of any exceptions incorporated into the order are therefore to be determined by the construction of the statute which confers the discretion and if not expressly stated then they are determined by implication from the subject matter, scope and purpose of the Act.
The extent to which exceptions can be made under s 43 of the Act was an issue in argument. In its essence, the submission of the plaintiff was that in this case the Examiner having considered that he was required to make a non-publication order, then did so but, by two of the exceptions, deprived the order of its protective effect on the plaintiff. I agree with that submission but there is another issue to consider.
In my opinion, the other more fundamental question to be asked is whether the exception inserted into the non-publication order that enabled the plaintiff’s evidence to be provided for the purpose of prosecution, was valid. As Macaulay J noted in REG,[22] “…the mention of information being used for prosecution is not contained in any authorising provision…” Likewise in AJH,[23] Beach J said:
Lest it be suggested that by the construction of ss 20 and 43 of the Act which I have preferred, a court hearing a prosecution might be deprived of relevant evidence, it 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. On the other hand, if it is thought that the Chief Examiner (or his delegate) should have a greater power to assist in providing information for prosecutions, then the Act needs to be amended. At present, save to the extent to which I have already referred, the Act is silent in respect of such matters.
[22]At [30].
[23]At [34].
With respect I agree with Beach J’s observation leading to the conclusion I have reached. In its complete terms, s 43 is as follows:
(1)The Chief Examiner may direct that—
(a) any evidence given before the Chief Examiner; or
(b) the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c) any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d) the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(3)A person who makes a publication or communication in contravention of a direction given under subsection (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 subsection (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) 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 subsection (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 subsection (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.
Importantly, sub-ss (4) and (5) specify a procedure by which, under the supervision of a court before which a person has been charged with an offence, evidence given before the Chief Examiner can be made available to the person charged or that person’s legal practitioner. 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.
In s 67 of the Act, the following provisions concerning information sharing appear:
(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 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:
(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 by…members of the 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 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.
That exception has two flaws. 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 as both Macaulay and Beach JJ have noted. So, when the Examiner in this case said to the plaintiff,
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.
Perhaps unwittingly, Mr Hartnett’s submission about the appropriate method of incorporating the evidence of the plaintiff in any subsequent prosecution seems to me to be correct. He submitted that:
57 “…it would be more appropriate for [the police or DPP] to take a statement rather than use and publicise the fact that she has been before this – a special hearing.”[24]
[24]Transcript, p 95.
In my opinion, the Act demonstrates a legislative intention to identify the means by which evidence of the kind given by the plaintiff will be made available to persons charged as a result of an investigation.
The purpose of the Act is:
to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences
That means that the Chief Examiner is intended to be an investigator rather than an evidence-gatherer by compulsion. In my opinion the Act does not contemplate that a transcript of the evidence given under coercion by the plaintiff 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. If, for example, prosecuting authorities are confronted by reluctant witnesses, s 104 of the Criminal Procedure Act 2009 can be employed:
(1)On the application of the informant, the Magistrates' Court may make an order requiring a person to attend before the court on a date fixed by the court for the purpose of being examined by or on behalf of the informant or producing a document or thing or both.
(2)The Magistrates' Court may make an order under subsection (1) if it is satisfied that it is in the interests of justice to do so.
(3)The Magistrates' Court may set aside an order under subsection (1) at any time, whether on its own motion or on the application of the informant or the person sought to be examined.
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.[25] 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.
[25]Section 43(4)(b).
I am aware that Morris J in James[26] came to a conclusion which may seem inconsistent with mine. In that case and in response to the submission on behalf of Mr James, Morris J concluded:[27]
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, sub-ss.(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). 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.
[26][2006] VSC 384.
[27]At [11].
With respect, this approach is different from the point I have to consider. I am not concerned with the “un-making” or rescission of an order. At every stage of the process in this case the Examiner maintained the non-publication order on the basis that he had concluded that not to make such an order “…might prejudice the safety or reputation of a person [YG]”. Whether or not that view was properly informed by the evidence, if that was his opinion then the scheme of the Act, and ss 43(4), (4A) and (5) in particular, would surely require that that procedure be followed. Morris J noted that:[28]
…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.
[28]At [11].
That is exactly the situation that the Examiner in this case considered that he was dealing with. In my opinion, that procedure is the only mechanism by which that outcome can be achieved.
The parties’ further submissions
This issue had not been the subject of argument during the original hearing of this matter and the parties were invited to file further submissions and both did so. In the written submissions filed on behalf of the defendant it was argued that the express purposes of the Act is directed to two distinct outcomes. First the obtaining of intelligence in relation to organised crime offences and, second, the obtaining of evidence for use in prosecution and other proceedings. Section 1(a) actually provides:
The purposes of this Act are—
(a) to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences
There is no reference to the prosecution of offences or other proceedings. The defendant’s submissions do not explain how the obtaining of evidence by the Chief Examiner is intended by the Act to be used in prosecutions and other proceedings. I do not accept that it is clear that the second “distinct outcome” referred to in the defendant’s submission is contemplated by s 1(a).
The defendant’s submissions go on to refer to several sections in the Act which, it is argued, buttress the conclusion that “[b]oth the text and the scheme of the Act make clear provision for evidence obtained under examination to be available for use by the prosecution in criminal and civil (confiscation) proceedings: that is a statutory purpose beyond the role of intelligence gathering, simpliciter.”[29]
[29]Supplementary Submissions Filed on behalf of the Defendant, 30 July 2012, [13].
The first section relied is s 14. The relevant parts relied on are:
(4) An application for a summons -
(d) must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed;
Likewise in s 14(6) the following appears:
(6) On application under subsection (3), the Supreme Court may issue a summons directed to a person, other than a person referred to in subsection (7), if the Court is satisfied that it is reasonable in the circumstances to do so, after consideration of—
(a)the evidentiary or intelligence value of the information sought to be obtained from the person; and…
Finally, in s 15(4):
(4) The Chief Examiner may issue a summons directed to a person, other than a person referred to in subsection (5), if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so, after consideration of—
(a)the evidentiary or intelligence value of the information sought to be obtained from the person; … (added emphasis in each quote)
The point sought to be made about these sections is that when determining whether to issue a summons, the evidentiary value of the information is to be considered, thus implying that the evidence could be used in a prosecution. I have no difficulty accepting that the likely evidentiary value of the information likely to be obtained from a particular person is a relevant consideration to the question of whether a summons should be issued. However, in my opinion that by no means contemplates that a person will be brought before the Examiner, questioned under coercive powers and the resultant evidence incorporated into a prosecution brief and served on those accused of the organised crime offence. There are, as I have endeavoured to explain, several other intervening steps which are ignored in the reasoning put forward on behalf of the defendant. There is also good reason not to expose the investigative process of the Chief Examiner unless it is necessary to do so.
The next section relied upon was s 39(3)(d). Section 39 is generally concerned with abrogation of the privilege against self incrimination. Its effect is that a person is not excused from answering questions on that basis. Sub-section 3 limits the use that can be made of the answers given and provides:
(3) The answer, or the document or other thing, is not admissible in evidence against the person in—
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty—
other than—
(c)proceedings in respect of an offence against this Act; or
(d)proceedings under the Confiscation Act 1997; or
(e)a proceeding in respect of—
(i)in the case of an answer, the falsity of the answer; or
(ii)in the case of the production of a document, the falsity of any statement contained in the document
This section is concerned with how the evidence given by a person may be used against that person. It has nothing to do with how the evidence given by a person summonsed before the Chief Examiner or his delegate may used against others.
Next it is submitted that the contemplation of the Act contended for by the defendant is supported by s 45(2) of the Act. Section 45 establishes a requirement that an examination of a witness must be video taped. Section 45(2) provides:
Subject to subsection (3), evidence of anything said by a witness at an examination before the Chief Examiner is inadmissible as evidence against any person in any proceedings unless the examination of the witness in its entirety was video-recorded and the video-recording is available to be tendered in evidence.
So, clearly, the Act contemplates that a stage might be reached where the evidence before an Examiner is sought to be tendered in evidence before a Court. The defendant submitted that the section provides that such evidence from an examination is admissible. It may or may not be, depending on the basis on which it is sought to be tendered. In the event that a court does admit such evidence, in order to ensure that it is the best evidence possible, the Act sensibly requires that the examination be video taped. I do not accept that this section in some way authorises, either on its own or in combination with other sections, the use of the evidence in the manner contemplated by the Examiner in this case.
Finally the defendant relies on ss 67 and 68. Section 67 is concerned with the authority of the Chief Commissioner of Police to share information derived under these coercive powers with other agencies if certain requirements are met. I assume the Director of Public Prosecutions might be included in that category. The section specifically authorises the furnishing of such information to authorities and persons concerning with taking civil remedies proceedings. Section 68 is concerned with secrecy and creates an offence for breaches of those provisions. In my opinion those sections do not advance the defendant’s submission.
The defendant also relied on a portion of the second reading speech for the bill by the Minister for Community Services where he said:
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. Whether the evidence can be used in other proceedings will depend upon the admissibility of that evidence as determined in accordance with the ordinary rules of evidence.
In the my view the Minister was contemplating that evidence “derived as a result of those answers” would be evidence compiled by police and prosecutors in the usual form as I have earlier described rather than a transcript of the evidence given before the Chief Examiner. The Minister’s use of the word “derived” illustrates what I contend as the purpose of this coercive legislation.
Reliance was also placed on the observations of Coghlan J in E v Chief Examiner[30] where his Honour concluded that a clear purpose of the Act is to make the evidence obtained in hearings before the Chief Examiner’s office “…available for the use in a prosecution.”[31] Explaining that a little further His Honour went on to say:[32]
Although the language of the Act expressed in terms “to investigate organised crime offences” does not include specifically the words “obtain evidence” or “to prosecute”. I am satisfied that investigation in this context, since it is connected to offences, includes the gathering of evidence, and by that I mean evidence which will be used in prosecution. It is not confined to the gathering of intelligence, although that also will be part of the process.
[30][2010] VSC 353.
[31]At [28].
[32]At [29].
His Honour also identified the lack of specific reference to the words “obtain evidence” or “to prosecute”. In my view there is nothing inconsistent between what his Honour said and my opinion that the Act contemplates that such evidence obtained may be used to inform investigating police as to what a witness has said, opening the opportunity for them to obtain that information by other means, such as a statement. Thus, information obtained by the Chief Examiner may be indirectly used for the purpose of prosecution, in a fashion which protects the confidentiality of the Chief Examiner’s process. Information obtained by the Chief Examiner may be directly used in a prosecution where it is in the interests of justice to do so under s 43(4) of the Act. So, whilst I accept that evidence to be used in a prosecution might be derived from the evidence given before the Chief Examiner’s office, I remain unable to accept that the actual evidence given before the Chief Examiner or his delegate is intended and authorised by the Act be incorporated in a brief of evidence and served, in that form, on persons charged. As such, the Examiner acted without authority in creating an exception to the non-publication order that permitted such use of the evidence he had taken.
The procedure by which the orders were made in this case
It is appropriate to make some further comments about the procedure that was followed in this case. As I have earlier described, the Examiner pronounced the order at the commencement of the hearing before him, and that order remained in place after hearing from counsel representing the plaintiff. He explained that whether the order would remain in the form in which it was pronounced would depend on the evidence that the plaintiff gave. He allowed for the possibility of amending the non-publication order to make it more restrictive. Despite this caveat, no questions were asked of the plaintiff by her counsel or by the Examiner to inform the issue that was left open.
Pursuant to s 36 of the Act, the Chief Examiner or a legal practitioner representing the witness may “…so far as the Chief Examiner thinks appropriate, examine or cross‑examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates”. Thus, it was open to the Examiner himself, or Mr Hartnett at the Examiner’s invitation, to lead evidence that was relevant to the final determination of whether or not a “more restrictive non-publication direction should be made”.
However, this was not done and the order was made and continued without any evidentiary basis. For example, the absence of evidence of threats was relied on as a reason not to vary the order, but the plaintiff had not been asked any questions relevant to that issue. Neither was she asked any questions about how her reputation might be imperilled. Further, it appears that his conclusion was based, at least in part, on the speculative conclusion as to what those who might read her evidence might analyse her circumstances to have been in the hearing before the Examiner. Having expressed those conclusions subject to further written submissions, the Examiner, almost by chance was told directly by the plaintiff of her concerns. Later, the solicitor for the plaintiff re-stated the plaintiff’s concerns in correspondence and was met with a final decision to the contrary without reasons or reference to the evidence.
This process was unsatisfactory. The proper process would be to establish in any given case whether a non-publication order was sought and to ensure that evidence was given by the witness relevant to the making of that order. A final conclusion about the terms of such an order should be reached before the witness leaves the premises after giving evidence. In this case, the decision of the Examiner was made and concluded without any evidentiary enquiry of the plaintiff about the matters of concern raised by her counsel and, at least in part, was based on little more than speculation. In addition, having made a finding of the kind referred to in s 43(2) of the Act, the terms of the order undermined its effectiveness. Those considerations on their own would lead to the order being set aside. Given that I have also concluded that the exceptions in the order to which I have referred were made outside the authority conferred by the Act, the order must be set aside.
Conclusion
I propose to make a declaration that the decision by the Examiner, being the non publication order pronounced on 8 November 2011, was not made in accordance with the law and is, in part, invalid. The order of the Examiner was in the following terms and the portion of it that I have concluded are invalid are highlighted hereunder:
(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 by the Chief Commissioner of Police exercising his or her right of information sharing as detailed in section 67 of the Major Crime (Investigative Powers) Act 2004 or by members of the Victoria Police lawfully engaged in the investigation of an organised crime offence or by members of the 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 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. This direction is made pursuant to the provisions of section 53(2) [sic] of the Act and I am satisfied that a direction must be made at this time because a failure to do so might prejudice the safety or reputation of a person [YG] in relation to whom the summons was issued, or the fair trial of persons namely…[Redacted]…who have been charged with offences.
I now make a further declaration that those parts of paragraph (d) of the Examiner’s order, pronounced on 8 November 2011, that are not underlined, above, will continue until further order or until the Examiner revokes them as set out, below.
Given that the Examiner’s non publication order was not based on any evidence, the matter should be remitted to him to obtain further evidence from the plaintiff and decide whether the order will be continued without the offending part of the paragraph, as underlined above. In reconsidering this issue, the Examiner should bear in mind my conclusion that the exceptions are not, in their current form, valid.
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