Plaintiff v Defendant

Plaintiff v Defendant - [2016] VSC 143 - VSC 2016 case summary — Zoe

[17]

(a) The Chief Commissioner of Police failed to observe the rules of natural justice in making the decision in that:

(i) he did not inform the Plaintiff of the substance of what was said against him in the material described as 'other credible protected information', which was considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make the Racing Exclusion Order;

(ii) in so doing, the Defendant did not give the Plaintiff the opportunity to hear or become aware of the 'protected information'; and

(iii) the Defendant did not give the Plaintiff the opportunity to respond to, rebut and/ or make submissions in relation to such information.

(b) The Defendant failed to observe the rules of natural justice in making the decision in that:

(i) he did not inform the Plaintiff that the Plaintiff's present appreciation of, or ability to control his behaviour toward others, was being considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make a Racing Exclusion Order;

(ii) in so doing, the Defendant did not give the Plaintiff the opportunity to respond to, rebut and / or make submissions in relation to that matter.

(c) The Defendant failed to observe the rules of natural justice in making the decision in that:

(i) he did not inform the Plaintiff that the impact of the decision upon the Plaintiff was being considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make a Racing Exclusion Order; and

(ii) in so doing, the Defendant did not give the Plaintiff the opportunity to address and /or make submissions in relation to that matter.

(d) The decision is ultra vires in that:

(i) the Chief Commissioner of Police was nominated by . the legislature to exercise the power to make the decision;

(ii) the Chief Commissioner may, under s 19(1) of the Victoria Police Act 2013, delegate any of his statutory functions, upon making a written instrument to that effect;

(iii) no written instrument of delegation of the power to make the decision to the Defendant was made;

(iv) the power conferred by s 33 of the Racing Act 1958 ('the Act') to make the decision ('the power') arises in circumstances where its exercise is necessary to protect the Victorian racing industry from serious, organised criminal activity;

(v) the power does not arise in circumstances where the conduct of the individual concerned, falling short of serious, organised criminal activity, can be, is being and / or has been, dealt with within the disciplinary and licensing frameworks established under the Act; and

(vi) the Defendant made the decision in circumstances where the Plaintiff is not and was not involved in serious, organised, criminal activity; and his conduct can be, is being and / or has been, dealt with within the disciplinary and licensing frameworks established under the Act.

(e) In the circumstances set out immediately above, the decision involved an error of law on the face of the record.

(f) The decision was made for an improper purpose in that:

(i) the purpose of the power is to protect the Victorian racing industry from serious, organised, criminal activity;

(ii) the Defendant did not make the decision for the purpose for which the power was conferred; and

(iii) the Defendant made the decision for the purpose of circumventing the disciplinary and licensing frameworks established under the Act.

(g) Alternatively, the decision involved an error of law on the face of the record in that in making the decision, the Defendant took an unduly narrow view of the 'public interest' as not including the impact upon the Plaintiff of the decision.

[26]

33 Exclusion Orders by Chief Commissioner of Police

(1) The Chief Commissioner of Police may, if he or she considers it necessary in the public interest, by written order given to a person, prohibit the person from entering, or remaining at -

(a) a specified race-course; or

(b) two or more specified race-courses -

for the duration of a race-meeting at the race course.

(2) Nothing in this section empowers the Chief Commissioner of Police to make an exclusion order in respect of a person who holds a bookmaking licence or an occupational racing licence within the meaning of Part IIIC.

35E Procedure on application for review

(1) This section applies if an application is made to a court for review of a decision by the Chief Commissioner under section 33 to make an exclusion order.

(2) If the Chief Commissioner objects to the disclosure or production of protected information at the hearing of the application for review, the Chief Commissioner may apply before the hearing to the court to hear and determine the application for review -

(a) at a hearing at which evidence given by a police officer is given on the basis of a confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or

(b) at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or

(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or

(d) by any combination of the methods set out in paragraphs (a), (b) and (c).

(3) If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner, the court may hear and determine the application by any other method set out in subsection (2).

(4) In deciding which method to hear and determine the application for review, the court must take into account -

(a) the public interest in protecting the confidentiality of police investigative techniques and protected information in the possession of the police; and

(b) the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which -

(i) reveals the identity of the police officer who provided information on the basis of which the exclusion order was made or puts that police officer's safety at risk; or

(ii) reveals the identity of a person who has provided a police officer with information on the basis of which the exclusion order was made, or puts that person's safety at risk; or

(iii) reveals the identity of a person whose name appears in any evidence given or information provided to a police officer relating to an investigation, or puts that person's safety at risk; or

(iv) reveals the identity of a person who is or has been the subject of an investigation by a police officer, or puts that person's safety at risk; or

(v) places at risk an ongoing investigation by a police officer; or

(vi) risks the disclosure of any investigative method used by police officers; or

(vii) is otherwise not in the public interest.

(5) If the court decides to hear and determine the application for review by the method set out in subsection (2)(a), the court may require the police officer to provide the court with any further confidential affidavits the court requires to determine the application.

(6) In this section protected information means any intelligence information, document or thing the production or inspection of which -

(a) is likely to reveal any matter referred to in subsection (4)(b)(i) to (iv); or

(b) is likely to place at risk an ongoing investigation by a police officer; or

(c) is likely to risk the disclosure of any investigative method used by police officers; or

(d) is otherwise not in the public interest.

35F Appointment of Special Counsel

(1) If a court decides to hear and determine an application for review at a hearing referred to in section 35E(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.

(2) A special counsel must be a barrister within the meaning of the Legal Profession Uniform Law (Victoria) who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing.

(3) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding.

(4) At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel -

(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and

(b) may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and

(c) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.

[41]

Right to a fair hearing

...

Persons named in, or affected by, coercive powers orders or exclusion orders, and seeking the revocation by the Supreme Court of such orders, are potentially parties to civil proceedings. Consequently, clauses 4, 14 and 15 engage the right to a fair hearing in section 24 of the charter.

...However, any limit imposed by clauses 4, 14 and 15[8] of the bill are reasonable and justifiable in a free and democratic society for the purposes of section 7(2) of the charter having regard to the following factors:

The nature of the right being limited

The right to present a case is an important element of the principle of equality of arms recognised in section 24 of the charter. However, as with all of the human rights protected in the charter, the rights in section 24 may be subject to reasonable limits.

The importance of the purpose of the limitation

In determining which procedure should be followed in relation to the hearing of an application for revocation, the court must take into account the public interest in protecting the confidentiality of the intelligence information provided to the court for the purposes of obtaining a coercive powers order or obtained or to be obtained under the coercive powers order (and if the court is satisfied that it is not in the public interest to determine the matter in the method elected by the chief commissioner, the court may determine the matter using one of the other methods provided). Thus, the court would only determine the application without notice to and without the presence of certain parties if it was in the public interest to do so. Thus, the limitation serves the important purpose of protecting the confidentiality of intelligence information where it is in the public interest to do so.

The nature and extent of the limitation

The limitation will potentially operate to prevent parties from presenting their case to the court, in order to protect the confidentiality of intelligence information. Courts have been prepared to allow limits on the disclosure of material where necessary to protect the public interest. The concept of a 'fair' hearing takes into account not only the accused's interest, but also those of the victim and society. Additionally, the interests of parties seeking the revocation of orders will be protected by the appointment of a special counsel to represent the interests of a party to the proceeding at the hearing, where the court decides to proceed by way of a hearing held without notice to and without the presence of a party, which provides an additional safeguard.

The relationship between the limitation and its purpose

The limitation is directly and rationally connected to its purpose of protecting the confidentially of intelligence information.

Any less restrictive means reasonably available to achieve its purpose

There are no less restrictive means to reasonably achieve the purpose of protecting confidential intelligence information.[9]

[92]

As a practical matter it may be highly unlikely that relevant confidentiality could be assured if information were to be disclosed to an applicant adversely affected by it. The same level of risk may not apply to disclosure of information to a legal representative who is prepared to give a formal undertaking to the Court or submit to a prohibition by way of court order against disclosure of the information to the affected party or anyone else. Breach of such an undertaking to or order by the Supreme Court would be punishable as a contempt of that Court. Breach of an undertaking to or an order made by the Licensing Court would be punishable by the Supreme Court as a contempt committed in relation to an inferior court subject to its supervisory jurisdiction. Breach of such an undertaking or order could also expose the legal representative to disciplinary action by the relevant professional regulatory body.

The Court could nevertheless decide that disclosure to legal representatives, even when subject to undertakings or orders as to confidentiality, would carry too high a risk. Still, s 28A(5) contemplates that the Court may hear "argument" about the information in private in the absence of the parties and their legal representatives. It impliedly accepts that the Court may itself inquire into the classification of the information. It may also wish to decide what weight it should give to it. Evidence "about the information" might relate to the reliability of the sources from which the information has been obtained or the risk of prejudice were it to be disclosed.

Properly construed s 28A(5) gives the Licensing Court and the Supreme Court a degree of flexibility in the steps to be taken to maintain the confidentiality of criminal intelligence. It tends to support the conclusion that the Court can decide, no doubt after hearing argument from at least the Police Commissioner, if not the legal representatives of the applicant, whether the information has been correctly classified as criminal intelligence and, if so, what weight should be given to it. There is nothing in the Act to prevent the Court from taking into account the fact that the information has not been able to be tested by or on behalf of the applicant, in assessing its weight.[27]

[94]

The reviewability of the Police Commissioner's classification means that upon the Commissioner making an application to the Court under s 28(5) the representatives for the affected party may make submissions to the Court about the validity of that classification. It may be that those representatives will be precluded by the Court from having access to the information for the purpose of making their submissions. Even then, they can assist the Court by drawing its intention to the relevant criteria. They could even cross-examine the Commissioner about the way in which he or she arrived at the classification albeit it must be accepted that the scope of the cross-examination would be confined by the lack of access to the information.

The legal representatives of an applicant affected by criminal intelligence may apply to the Court to be given the right to inspect the information under non-disclosure undertakings or orders. Such procedures are not unusual particularly in cases involving claims for the confidentiality of documents produced in commercial proceedings. In some commercial cases a party may issue subpoenas requiring production of documents by non-parties who are competitors with the party issuing the subpoena. Production of such documents may be ordered on the basis that they can only be inspected by the legal representatives of the party issuing the subpoena and then only subject to undertakings not to disclose the contents of the documents to their clients.

Of course the Court may decide that disclosure to legal representatives would carry too high a risk of prejudice to criminal investigations or confidential sources of information. But that decision is a matter in the discretion of the Court. The maintenance of "confidentiality" in s 28A(5) does not require confidentiality to be maintained in a particular way. Under that rubric the Court may, in an appropriate case, be able to provide a summary of the conclusions or inferences offered or arising from the criminal intelligence without disclosing its detailed content or sources.[28] (Emphasis added)

At a glance

Court

Decision date

Before

Source

Judgment (204 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (14)