Restricted evidence pursuant to the Major Crime (Investigative Powers) Act 2004

1. Restricted evidence is defined in section 3 of the Act as:

any evidence, information or thing that is the subject of a direction that is in force under section 43(1).

1. Section 43(1) is in Part 4 of the Act which provides extensive powers to the Chief Examiner for the compulsory examination of individuals the subject of coercive powers orders issued by the Supreme Court.
2. Pursuant to s 43(1) the Chief Examiner may make a non-publication direction in respect of:

(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

3. It is relevant to note that s 43(2) of the Act obliges the Chief Examiner to make such a direction where:

... failure to do so would reasonably be expected to prejudice -

(a) the safety of a person; or

(b) the fair trial of a person who has been or may be charged with an offence.[5]

1. The Act also significantly limits the circumstances in which the Chief Examiner, an examiner, or a police officer can be compelled to produce documents or divulge information acquired in the exercise of functions under the Act.[6] That is, this material cannot be obtained pursuant to a subpoena.
2. This is all to be understood in the context of the purposes of the Act, being:

(a) to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and > > (b) to combat and reduce the incidence of organised crime offences.[7]

3. Whilst the Act places restrictions on the production or release of evidence it also provides a mechanism for the release of restricted evidence to a 'person charged with an offence before the court'.[8] That mechanism involves a number of steps and is contained in s 43A of the Act.
4. Initially, pursuant to s 43A(1), the Court will issue a certificate to the Chief Commissioner or the Chief Examiner if satisfied that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court. An application for such a certificate may be made by the Director of Public Prosecutions, the Chief Commissioner or the person charged.
5. Pursuant to s 43A(2), if a certificate is granted, the restricted evidence must then be made available to the Court by the Director of Public Prosecutions or Chief Commissioner as the case may be.
6. If restricted evidence is made available to the Court under this provision, then, pursuant to s 43A(3), the Court must give the following people the opportunity to make submissions to the court about whether the evidence should be made available in whole or in part:

(a) the Chief Examiner; and > > (b) the Chief Commissioner; and > > (c) if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.[9]

7. The Court may then make the restricted evidence available to the person charged or their legal practitioner 'if the interests of justice so require'.[10]

1. On 2 March 2023 the applicant applied to the Court for the release of restricted evidence. The restricted evidence sought is:

1. On the 16 May 2023 the Court issued a certificate pursuant to s 43A(1). It was accepted by both the Chief Commissioner and the Chief Examiner that the threshold in that section was satisfied.
2. On 6 June 2023 the Chief Commissioner and the Chief Examiner provided materials to the Court in compliance with the certificate.
3. It remained to be determined whether the interests of justice require that the restricted evidence provided to the Court be made available to the applicant in whole or in part.

1. The applicant did not provide written submissions in respect of either the issue of a certificate or the release of the restricted evidence to them. The basis for their application was referred to as 'grounds' in their application of 2 March 2023 and I have had regard to them.
2. Material that had been provided to the applicant to date by way of disclosure and s 317 order revealed that [redacted].
3. The applicant asserts that:

1. The applicant accepted that the test for release of certificate documents in whole or part to an applicant or his legal practitioner is set out in s 43A(5). The applicant submitted that the use of the word 'requires' in that section of the Act does not import a stricter test than 'the interests of justice' in s 317 of the CPA. In Zirilli v The Queen it was observed that an order for production pursuant to s 317 was akin to a subpoena.[11] Principles applicable in the consideration of other coercive processes for the production of documents will have relevance to the consideration of what is in the interests of justice to order pursuant to s 317.[12] This includes an assessment of the likelihood that the documents sought by subpoena will provide assistance; whether it is 'on the cards'. Counsel for the applicant maintained the submission that in determining whether it is in the interests of justice to release the certificate documents I should consider whether it is on the cards that the documents sought will materially assist the applicant.
2. Counsel for the applicant otherwise agreed that the articulation of the interests of justice test in Jean Ross (a pseudonym) v The Chief Commissioner of Police and the Chief Examiner[13] is applicable in this matter (referred to in further detail at paragraph 46 of this judgment). In particular, counsel drew attention to the applicant's ground of appeal which relies on the judgment in the matter of R v Szabo,[14] that is:
   1. A fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had miscarried.
3. [Redacted].
4. Further, as was observed in Jean Ross, the interests of justice encompass the interests of all of the parties engaged in the proceedings and the interests of the public in the proper administration of justice.
5. Lastly, counsel for the applicant observed that there is no longer a risk to the safety of a person.[15]

1. On 27 June 2023, having been given the opportunity to do so pursuant to s 43A(3) and (4), the Chief Commissioner and the Chief Examiner provided a single set of confidential written submissions representing their combined position.[16] [Redacted].
2. The Chief Commissioner and Chief Examiner made submissions with the applicant present in Court in relation to the broad considerations in the application of the test in s 43A(5). Submissions in relation to the application of those principles to the particular certificate documents occurred in the absence of the applicant in closed court.
3. The Chief Commissioner and Chief Examiner submitted that the phrase, the 'interests of justice', in the context of criminal proceedings, refers to a fair process in a trial between the Crown and the accused and extends to the public interest in the administration of justice.
4. The Court was referred to the case of Jean Ross,[17] where the Court of Appeal considered s 43A(5), which by its terms

makes clear that the interests of justice include the interests of the witness and those of the person charged and the Director. Furthermore, the requirement for the court to examine the evidence in the particular case and to receive submissions from the particular witness, and to only make the restricted evidence available if the interests of justice so require, make plain that the interests of justice are those that obtain in the particular case considering the phrase and the requirement legislated in s 43A(5) of the MCIPA.[18]

1. The Chief Commissioner and Chief Examiner submitted that the 'interests of justice' test in s 43A(5) is different to the test applicable when considering an order for production pursuant to s 317 of the CPA. The 'on the cards test' is speculative and relates specifically to whether documents should be produced to the Court. In this respect, production orders pursuant to s 317 of the CPA are more analogous to the certificate process pursuant to s 43A(1) of the Act. Section 43A(5) of the Act relates to the release of documents already provided to the Court and the word 'require' in that section should be understood a connoting something 'necessary or obligatory, rather than permissive'.[19]
2. In addressing the interests of justice in this case the Chief Commissioner and Chief Examiner submitted that the Court should consider the chronology and timing of relevant facts and events as well as the subject matter and content of the certificate documents and whether they could form part of 'all relevant circumstances' contributing to the applicant's Szabo argument.
3. Further, the Chief Commissioner and Chief Examiner submitted that the investigative function of the Office of the Chief Examiner is a relevant factor to consider. The investigatory function of the office is in the interests of justice broadly.[20]
4. With particular reference to the certificate documents, counsel stated that none of them can have any relevance to the applicant's appeal. [Redacted].
5. In respect of any perception or reasonable suspicion that justice may have miscarried in consequence of [redacted].
6. [Redacted].
7. [Redacted].

1. The certificate material is restricted evidence. The Act explicitly protects restricted evidence from compulsory production by court order.[21] The mechanism and considerations for the release of restricted evidence are set out in s 43A of the Act. It is misconceived to import principles applicable in respect of compelled production by either subpoena or s 317 order. It is also unnecessary; the tests for the granting of a certificate in respect of the restricted evidence and then for the release of certificate material are set out clearly in s 43A of the Act and described in paragraphs 12 to 21 of this judgment above.
2. Having considered the parties submissions on the framework of s 43A, and the guidance provided by the decision of Jean Ross, the following can be discerned:
   • 'in any given case, the nature and content of "the interests of justice" must be derived from the context - statutory or otherwise- that is applicable';[22]
   • 'the interests of justice are those that obtain in the particular case';[23]
   • the interests of justice are inclusive of the interests of the witness, the person charged and the director but broadly extend to the public and their interest in the administration of justice;[24]
   • the strength of the case absent the evidence is of little bearing to the determination;[25]
   • the word require connotes something more than being merely permissive, it is obligatory or necessary;[26]
   • an evaluation of the importance of the evidence in the context of the case is to be made against the importance of avoiding possible prejudice to personal safety,[27] as well as ongoing investigations and future prosecutions.

The subject documents - 'the certificate material'

1. The Chief Commissioner has given broad interpretation to the categories in the certificate made by the Court on 16 May 2023 in the material they have provided. [Redacted].
2. The certificate material comprises:

1. Within his appeal grounds the applicant asserts that [redacted]. This is the case context in which to assess whether the certificate material should be released.
2. I have reviewed the certificate material. [Redacted]
3. Documents forming part of the certificate [redacted]. The interests of justice do not require that these be made available.
4. [Redacted].
5. The interests of justice in this case therefore require that this information be released. That information having been provided in the form of this ruling, the interests of justice do not require that any of the irrelevant transcript be released.
6. The court finds that:

1. The Applicant's application pursuant to s 43A of the Major Crime (Investigative Powers) Act 2004 is otherwise dismissed.

[1] The applicant's non-parole period expired on the 20 August 2021. The applicant will have completed his sentence on 18 August 2024.

[2] On the 11 March 2020, the applicant also filed an application for an extension of time in which to file his application for leave to appeal.

[3] On 20 October 2017 an application for an extension of time in which to file an application for leave to appeal conviction was refused.

[4] Criminal Procedure Act 2009 s 317.

[5] Major Crime (Investigative Powers) Act 2004 s 43(2).

[6] Major Crime (Investigative Powers) Act 2004 s 68(3).

[7] Major Crime (Investigative Powers) Act 2004 s 1.

[8] Major Crime (Investigative Powers) Act 2004 s 43A.

[9] Major Crime (Investigative Powers) Act 2004 s 43A(4).

[10] Major Crime (Investigative Powers) Act 2004 s 43A(5).

[11] Zirilli v The Queen [2021] VSCA 2 [101].

[12] [2021] VSCA 2 [101], [122].

[13] Jean Ross (a pseudonym) v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254 ('Jean Ross').

[14] [2000] QCA 194.

[16] On 12 May 2023 the Chief Examiner's legal unit responded on behalf of both the Chief Examiner and the Chief Commissioner and on 10 July 2023 they further advised they had a single representative and submission.

[17] Jean Ross [2014] VSCA 254.

[18] [2014] VSCA 254 [91].

[19] [2014] VSCA 254 [72].

[20] Mickelberg v The Queen (No 3) (1992) 59 A Crim R 288.

[21] Major Crime (Investigative Powers) Act 2004 s 68(3).

[22] [2014] VSCA 254 [72].

[23] [2014] VSCA 254 [91].

[25] [2014] VSCA 254 [85].

[26] [2014] VSCA 254 [72].

[27] [2014] VSCA 254 [72].