R v Munro [2013] ACTSC 14

10 May 2004 when two men with guns stole about $150 000. In the course of the alleged robbery, one of the security guards was shot.

2. Mark Anthony Munro has been charged with the aggravated robbery of the employer of the guards and with intentionally inflicting grievous bodily harm on the guard who was shot. His trial is listed to commence on 25 February 2013.

3. Mr Sam Melkie pleaded guilty to the aggravated robbery of the employer of the guards and, on 17 February 2011, was sentenced to nine years imprisonment with a non-parole period of four years and six months: R v Melkie (Unreported, Supreme Court of the ACT, Gray J, 17 February 2011). Mr Melkie has been subpoenaed to give evidence in Mr Munro's trial. In a case statement prepared by the ACT Director of Public Prosecutions, it is asserted that the other man involved in the alleged robbery was Mr Munro. It is also alleged that he was the man who shot the guard in the alleged robbery.

4. The Australian Crime Commission, established by the Australian Crime Commission Act 2002 (Cth) (ACC Act), has conducted an examination of a named person under div 2 of pt 2 of that Act. I shall refer to the named person as "the witness". Such examinations are conducted in private and evidence taken in such an examination is usually subject to a confidentiality order prohibiting publication. The powers of the Commission are wide and, in particular, s 30 of the ACC Act abrogates the common law privilege against self incrimination and provides what is called a "use immunity": see A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at 438; [66]. In this case, the witness was examined under the relevant provisions and a record made of their evidence.

5. A direction was made under s 25A(9) of the ACC Act that the evidence given, the documents produced and a description of the things produced during the examination, the fact of the examination and any information that might cause the person to be identified shall not be published except to the Chief Executive Officer of the Commission or to the examiners or members of staff of the Commission.

6. That direction was varied, as is authorised under s 25A(10) of the ACC Act, to permit this information to be published to the Australian Federal Police, the Commonwealth Director of Public Prosecutions, the Director of Public Prosecutions of the Australian Capital Territory and their staff and to "any court and staff of such court for use in connection with any prosecution under the ACC Act or in any other prosecution".

7. That has now been done and staff of the Director of Public Prosecutions of the Australian Capital Territory have a copy of at least the transcript of the evidence of the witness. I pause to note [deleted for legal reasons] the witness is to be called by the prosecution as a witness in the trial and that Mr Munro's legal representatives have been advised accordingly. The witness has not given a statement to police.

8. That the prosecution now have a copy of the evidence from the examination of the witness means, of course, that it is available to the prosecution for derivative or indirect use. Derivative or indirect use is a concept well known on the authorities. In Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 312, Murphy J described derivative evidence as "evidence obtained by using the testimony for a basis for investigation". In Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 496, Mason CJ described it as "evidence which is obtained from other sources in consequence of answers given by the witness in his [sic] examination."

9. Thus, such use would include the use of evidence obtained in the examination as a basis for the development of the prosecution case trial plan, and any strategies for the presentation of the prosecution case that might include, for example, the order in which witnesses will be called and also the development of an appropriate cross-examination of an accused if he or she were to give evidence.

10. It would also, of course, be able to be used to develop the approach to the evidence to be given by the witness as himself or herself. Obviously, material of such a kind would be required to be disclosed by the prosecution to the accused or his legal representatives in the ordinary course: see AJ v The Queen [2011] VSCA 215. Of course, such an obligation may be prevented by statute but then there is a risk of the trial being rendered unfair because of the non-disclosure. This may be part of an obligation to provide natural justice to an accused.

11. An application was made for the Chief Executive Officer of the Commission to further vary the confidentiality direction to permit disclosure to Mr Munro and his legal representatives. That application was declined.

12. The Director of Public Prosecutions of the Australian Capital Territory has now come to this Court to obtain the necessary relief.

13. It is useful to set out the relevant provisions of the ACC Act, namely certainly subsections of s 25A. They are as follows:

(b) the contents of any document, or a description of any thing, produced to the examiner; or

(c) any information that might enable a person who has given evidence before the examiner to be identified; or

(d) the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

(10) Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9).

(11) The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and

(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;

the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require;

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

14. Two things will be immediately seen. The considerations to which the Chief Executive Officer must have regard are quite different and more limited than those to which the Court must have regard and, secondly, the Court must first request the evidence and then may make an order that it be released, but only to a person accused.

15. At both stages, the Court must have regard to "the interests of justice". That is a broad term. It is not a term capable of any precise definition or explanation. It is said to be "conclusionary in its nature," see TVM v Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 at 188; [28]. In R v Tripodi [2002] SASC 420; (2002) 136 A Crim R 514 at 520; [38], Doyle CJ said that "the expression should be read as embracing a wide range of factors. One would think that that is the very reason why that expression was chosen."

16. This is not a case, such as R v Seller [2012] NSWSC 934, where the evidence is to be used against the examinee and where significant problems need to be carefully addressed. The fair trial concept, with equality of arms and full disclosure, clearly mandates that unless there are other reasons why disclosure should not be provided, access by Mr Munro and his representatives to the material that will be used at the trial is required.

17. The questions of safety and reputation that were required to be considered by the Chief Executive Officer of the Commission or his delegate are, of course, also relevant. So far as that is concerned, I have had access to a submission made by the Chief Police Officer of the ACT as to these matters. He came to the view that Mr Munro may have cause to be disaffected with the witness as a result of the disclosure. He was, however, not aware whether Mr Munro knew of the witness' residential address.

18. Against this, however, is the fact that another witness, who I shall refer to as "SW", has given a full and detailed statement to police. It appears to be a statement given in connection with a grant of immunity that has been given to SW under s 9 of the Director of Public Prosecutions Act 1990 (ACT). That statement disclosed full details which the witness is said to have given to SW about the alleged robbery at Mawson. Thus, Mr Munro already must be aware that there is a real risk that the witness will give damaging evidence at the trial. There has been no suggestion made to me, nor am I aware of it, that Mr Munro has threatened either SW or the witness.

19. In those circumstances, it is a little difficult to see how the witness' safety will be much further compromised by the disclosure of the material taken in the examination before the Commission though, of course, the evidence of the examination is firsthand where as that of SW is only hearsay. If SW is called at trial, as is the intimation, then the evidence of SW, recounting what the witness has said, may be more readily admissible under s 66 of the Evidence Act 2011 (ACT).

20. These are very serious offences. Aggravated robbery is an offence against s 310 of the Criminal Code 2002 (ACT) rendering Mr Munro liable to a maximum penalty of 2500 penalty units, which was at the time of the alleged offence a fine of

$250 000, or 25 years imprisonment or both. Intentionally inflicting grievous bodily harm is an offence under s 19 of the Crimes Act 1900 (ACT), attracting a maximum penalty of 15 years imprisonment. It is clearly in the interests of justice that serious offences be prosecuted and that perpetrators be brought to account for any crimes they have committed.

21. Despite the confidentiality direction permitting the Court to see the evidence of the witness given at the examination, as I have done, it is still necessary for me to proceed to provide a certificate to the Chief Executive Officer and then to review the material provided before I make an order giving access to Mr Munro and his legal representatives. I have also been asked to make available the recording of the material as it may be that Mr Munro and his legal representatives will want to have access to that material or it may be necessary to play it at the trial.

22. I consider that it is in the interests of justice that the transcript and recording of any examinations of the witness conducted by an examiner of the Australian Crime Commission be produced to the Court. Accordingly I will make a certificate to that effect.

23. Neither counsel nor I could find any authority which dealt with the procedure to be followed in this application. In particular, a question arose as to whether the witness should be given notice of the application. It seemed to me that the witness' interests may be affected by access to the transcript and recording being given to Mr Munro and his legal representatives. That may require the witness to be given notice of the application and, if they wish, to be heard: see Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 430-1.

24. While it does not seem to me that having a transcript and recording produced to the Court for examination puts at risk any such rights, and so I can certify that they should be produced as proposed, further access may put the witness at some risk of having his rights interfered with, such that they are entitled to be heard.

25. There is, perhaps, a slight risk, for the witness is generally protected by the ACC Act, which limits what can be published, and such further restriction on publication would bind Mr Munro and his legal representatives even after access because, of course, they would be bound by the Act. The witness would, in the event they gave evidence at the trial, also be protected, if they wished, by a certificate under s 128 of the Evidence Act.

26. There are, however, issues of whether publication to the witness of the application itself would breach the confidentiality direction. That is odd, of course, because the witness knows the fact that an examination has been held and that they gave evidence and [deleted for legal reasons] no doubt knows, generally, the effect of their evidence. It would not, as "published" means, be making any such information "public" in any ordinary sense.

27. The provisions of the ACC Act, however, are strict and it may be that the act of publishing to the witness, as someone other than the persons covered by the first confidentiality direction (namely, the Chief Executive Officer, examiners and staff of the Commission), would be contrary to the interests of the Commission and the ACC Act.

28. It seemed to me, therefore, that I should seek a variation of the confidentiality direction before a copy of the application be served on the witness. I then required, subject to that, that the witness be served with a copy of the application, that the application be adjourned and that the witness be given an opportunity to appear.

29. Accordingly, I will make appropriate orders to certify that any transcript or recording of the witness before the Commission be produced to the Court, and I will adjourn the proceedings to enable an appropriate variation to the confidentiality direction to be sought from the Commission and to give notice to the witness that they may appear when the matter resumes.

30. Nothing else was put to me to justify refusal of leave. I have also had access to the transcript and been able to consider it. Accordingly, I propose to grant leave in due course. The only question is the terms of the grant of leave. I shall hear counsel on those matters when the matter resumes and the notice I require given to the witness who may, if they wish, then be heard.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: ACT Director of Public Prosecutions

Counsel appearing as amicus curiae: Mr B Biddington (Australian Crime Commission)