The Queen v Debono [2013] VSC 407

Supreme Court of Victoria|2013-02-01|Before: KYROU J

CRIMINAL LAW - Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 - Collateral challenge to the validity of a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.

**1 These reasons concern the Accused's pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 (Vic) ('CP Act') for an order quashing a charge for an offence of refusing to take an oath or make an affirmation, contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 ('Act').

2 The Accused sought to quash the charge on the basis that a coercive powers order and a custody order that were made under the Act, and pursuant to which he was required to take an oath or make an affirmation, were invalid.[1]

3 The grounds of invalidity rely on alleged breaches of the Act and the Charter of Human Rights and Responsibilities Act 2006 ('Charter').

4 For the reasons that follow, the Accused has failed to substantiate the grounds of invalidity. Accordingly, his application to quash the charge will be dismissed.**

**5 The Accused has made various applications to this Court in relation to the alleged offence under s 36(3) of the Act. These reasons should be read in conjunction with the Court's previous decisions on those applications.[2]

6 The Accused was served with a custody order dated 13 May 2009, made pursuant to s 18(2) of the Act, requiring him to attend before the Chief Examiner on 21 May 2009 to give evidence ('Custody Order'). The Custody Order was issued by the Chief Examiner under a coercive powers order made on 13 August 2008 by Cummins J and corrected by his Honour on 9 October 2008 ('CPO'). The CPO was made in respect of the organised crime offence described initially as 'Murder', and following the correction on 9 October 2008, as 'Murder of Wayne Keith Boyd on or about 9 November 2001'. The CPO was extended on 10 February 2009.

7 On 21 May 2009, the Accused attended before the Chief Examiner but declined to take an oath or make an affirmation. On 17 July 2009, the Accused was charged under s 36(3) of the Act with the offence of refusing to take an oath or make an affirmation.

8 On 2 September 2011, the Accused commenced a proceeding seeking revocation of the CPO and on 9 February 2012, he commenced a proceeding seeking judicial review of the CPO. On 8 May 2012, both proceedings were dismissed.[3]

9 In the criminal proceeding against him, the Accused sought to collaterally challenge the validity of the Act, the CPO and the Custody Order by way of a pre-trial application under s 199(1)(c) of the CP Act. The Accused also sought leave to issue subpoenas on the Chief Commissioner of Police and the Chief Examiner for the production of affidavits and other documents tendered in support of the applications for the CPO and its correction ('Applications'), and the transcripts of hearings relating to the Applications (collectively, 'Applications Documents').

10 On 21 August 2012, I decided that the Act was not invalid, and that the Accused had a legitimate forensic purpose in issuing subpoenas for the production of parts of the Applications Documents in order to pursue his claim that the CPO and the Custody Order were invalid. I ordered that the Accused have leave to issue subpoenas in respect of the relevant parts of the Applications Documents.[4]

11 On 4 September 2012, the Accused served a subpoena on the Chief Commissioner of Police seeking production of the Applications Documents.[5] On 24 September 2012, the Chief Commissioner of Police made a claim for public interest immunity in respect of parts of the Applications Documents. On 3 October 2012, the Chief Commissioner of Police produced to the Court and served on the Accused and on the Director of Public Prosecutions ('DPP') copies of the Applications Documents with redactions in respect of the parts that were the subject of the claim for public interest immunity ('Redacted Applications Documents').

12 On 17 October 2012, I decided to uphold the claim for public interest immunity in respect of the information deleted from the Redacted Applications Documents.[6] Accordingly, the Accused was required to pursue the collateral challenge to the validity of the CPO and the Custody Order without the deleted information.**

**13 In support of his pre-trial application under s 199(1)(c) of the CP Act, the Accused has relied on the facts set out at [14] to [31] below, which he distilled principally from the Redacted Applications Documents.

14 On 13 March 2008, Detective Acting Inspector Silva applied for a coercive powers order. The order was sought for the purposes of investigating an organised crime offence, namely, the murder of Boyd.

15 The application stated that investigators believed: that Kevin Farrugia shot and killed Boyd, and that the Accused, Matthew Silk and Frank Cardona 'were also involved in the murder'; that Boyd was lured to a meeting under the belief that he would be purchasing large quantities of pseudoephedrine; that Boyd was murdered in similar circumstances to those in the 'attempted murder' of Scott Hamilton; that Cardona, Farrugia, the Accused and others were involved in a drug syndicate providing pseudoephedrine to drug manufacturers; that Boyd was involved in the Finks outlaw motorcycle gang and was involved in drug manufacturing; and that Boyd was in the process of setting up a drug manufacturing plant.

16 The application names the alleged offenders as Farrugia, the Accused, Silk and Cardona.

17 The application was supported by an affidavit sworn by Silva on 13 March 2008 ('Silva affidavit'). The redacted Silva affidavit states that the information contained in it was communicated to Silva by Detective Sergeant Graham Guy. The Silva affidavit elaborates on the matters contained in the application, including that:

(a) Boyd was murdered on 9 November 2001 after he was lured to a meeting in the belief that he would be purchasing pseudoephedrine;

(b) Boyd was a member of the Finks outlaw motorcycle gang, and he was utilised by them as a cook in amphetamine manufacture, was distributing amphetamines on the Gold Coast and was in the process of setting up a drug manufacturing plant;

(c) investigators believe that Farrugia, the Accused, Silk and Cardona 'were involved' in the murder of Boyd; specifically, that Farrugia shot and killed Boyd and the Accused, Silk and Cardona 'were also responsible for the murder';

(d) the investigators' belief referred to in (c) above is based on information received from various witnesses and on the similarities between the murder of Boyd and the kidnapping and attempted murder of Hamilton;

(e) on 13 February 2002, Farrugia, the Accused and Silk kidnapped Hamilton;

(f) Farrugia, the Accused and Silk had all pleaded guilty and been convicted of the kidnapping of Hamilton;

(g) Cardona was charged with being an accessory after the fact to the kidnapping of Hamilton and was awaiting trial; and

(h) Farrugia, the Accused and Cardona each had pending trials in the County Court.

18 It is clear from the Silva affidavit that a primary purpose of obtaining the CPO was to enable the coercive examination of the Accused and the other alleged offenders in the Boyd murder.

19 At the hearing of the application for a coercive powers order on 22 April 2008, Cummins J stated that he was satisfied, based on the Silva affidavit, that the criteria in the definition of 'organised crime offence' were satisfied because of the 'inter-connectiveness' between the alleged murder of Boyd, the Hamilton kidnapping and the drug matters. His Honour stated that it was 'not simply a stand-alone allegation of a drug killing'.

20 At the hearing, Jenny Pavlou, who appeared for Victoria Police, referred to the imminent trials of the alleged offenders in the County Court and to the difficulty that would arise in questioning with respect to the murder matter without alluding to the drug activity. She stated that, during the County Court trial, the investigators did not intend to call witnesses pursuant to the proposed coercive powers order. There was discussion as to the effect of s 25(2)(k) of the Charter, which confers on an accused the right not to incriminate himself or herself. Ms Pavlou stated that the Act did not preclude Victoria Police 'from using information derivatively'.

21 Cummins J indicated that he was prepared to grant the order sought, subject to the question of persons being charged, committed or tried. It was suggested that the making of the order be adjourned until after the County Court trial. As a consequence, no order was made.

22 The application was renewed on 13 August 2008. Cummins J indicated that he had reviewed the video recording of the earlier hearing of 22 April 2008. His Honour said that, at that time, 'the only impediment' to the making of the proposed coercive powers order was that he did not 'wish persons ... to be coercively examined under the Act when they were facing a trial and that's why the matter was effectively stood over'. His Honour stated that, as the trials of the relevant persons (other than Cardona) had taken place, he would proceed to make the order.

23 Cummins J stated that s 25(2)(k) of the Charter encompassed charge, committal and trial. However, he indicated that it was not the 'primary issue presently', as the trials had already taken place.

24 On 13 August 2008, Cummins J signed the CPO. The CPO stated that it was made in respect of the organised crime offence of 'Murder'. It was subject to the condition that an application for a witness summons in respect of Cardona could only be made in the Supreme Court.

25 It is clear that Cummins J contemplated that the CPO would enable the coercive examination of the Accused and the other alleged offenders in the Boyd murder. The concern as to any breach of s 25(2)(k) of the Charter was confined to Cardona, who was still awaiting sentence in the County Court.

26 On 18 September 2008, Stephen Francis of the Office of the Chief Examiner applied for a correction of the CPO pursuant to r 36.07 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules'). The application was supported by an affidavit sworn by Francis on 18 September 2008. The affidavit pointed out that the CPO did not specify the victim or date of the murder in respect of which the CPO was made.

27 On 26 September 2008, Cummins J signed a new coercive powers order which included the typewritten words 'of Wayne Keith Boyd on or about 9 November 2001' after the word 'Murder' in the description of the organised crime offence in respect of which the order was made.

28 At a hearing on 9 October 2008, Cummins J referred to the strict rules that apply to ex parte matters, and queried whether the appropriate course was for the application to be made afresh. However, his Honour made an order which revoked the coercive powers order dated 26 September 2008 and corrected the CPO by inserting the words 'of Wayne Keith Boyd on or about 9 November 2001'.

29 On 13 May 2009, the Chief Examiner made the Custody Order. He also signed a document headed 'Order that a Person in a Prison or Police Gaol be Delivered into the Custody of a Police Member', which set out the reasons for the making of the Custody Order ('Reasons Document'). The Reasons Document stated that 'The witness is to be questioned on the full circumstances of the kidnapping on 13 February 2002, matters relevant to Boyd's murder on or about 9 November 2001 and drug related activities that are relevant to both the kidnapping and the murder'.

30 The Accused was provided with copies of the Custody Order and the Reasons Document. He has not been provided with the transcript of the hearing before the Chief Examiner.

31 On 21 May 2009, the Accused was brought before the Chief Examiner pursuant to the Custody Order. He refused to take an oath or make an affirmation.**

Grounds for collateral challenge to a coercive powers order

32 On 21 August 2012, I decided that a collateral challenge to the validity of a coercive powers order will ordinarily be confined to the following grounds:

(a) The coercive powers order was not made in respect of any organised crime offence. Under this ground, a coercive powers order will be invalid if one of the five elements of the definition of 'organised crime offence' in s 3 of the Act is not satisfied. This is because the Court's jurisdiction to make a coercive powers order is confined to organised crime offences.

(b) The judge who made the coercive powers order exceeded his or her jurisdiction by misconstruing the definition of 'organised crime offence' in s 3 of the Act.

(c) The judge who made the coercive powers order exceeded his or her powers in an error which appeared on the face of the record.

(d) The coercive powers order does not state that the Supreme Court is satisfied of the matters referred to in s 8(a) and (b) of the Act, having regard to the matters referred to in s 8(b)(i) and (ii), as required by s 9(1).

(e) The coercive powers order is tainted by fraud, bad faith or other impropriety. Without being exhaustive, this would include a situation where the evidence in support of the application for the coercive powers order was false or misleading in a material respect.[7]

**33 On further reflection, para (a) above is expressed too widely because, under ss 5(1) and 8 of the Act, the Court has power to make a coercive powers order if it is satisfied that there are reasonable grounds for the applicant's suspicion that an organised crime offence has been, is being or is likely to be committed and that it is in the public interest to make the order. This clarification of para (a) above does not affect the outcome of the Accused's application.

34 On 21 August 2012, I also decided that a collateral challenge to the validity of a coercive powers order is not available on the ground that the material in support of the order is insufficient.[8]

35 The key preconditions in the Act for the making of a coercive powers order are as follows:

(a) The coercive powers order must be made in respect of an 'organised crime offence', in the sense explained at [33] above. Section 3 of the Act defines an 'organised crime offence' to mean an offence which:

(i) is an indictable offence punishable by imprisonment for at least 10 years; and

(iii) involves substantial planning and organisation; and

(iv) forms part of systemic and continuing criminal activity; and

(v) has a purpose of obtaining profit, gain, power or influence.

(b) The application for the coercive powers order must contain the matters set out in s 5 of the Act.

36 In the present proceeding, the Accused has relied on the following grounds to challenge the validity of the CPO:**

Ground 1: The CPO was unlawful because it was not made compatibly with, and/or failed to give proper consideration to the accused's human rights, including his right to a fair trial and privilege against self incrimination in sections 24(1) and 25(2)(k) of [the] Charter ..., contrary to section 38 (1) of the Charter.

PARTICULARS

(a) the accused was a suspect in the murder of Wayne Boyd;

(b) the Chief Examiner intended to rely on the CPO to coercively examine alleged offenders including the accused in relation to the alleged murder; and

(c) no special condition was placed on the CPO stating that derivative use immunity applied in relation to evidence or information obtained from potential witnesses including the accused.

Ground 2: The Supreme Court did not have jurisdiction to make the CPO because it was not made in respect of an alleged 'organised crime offence' as defined in section 3 of the [Act] ... [10]

37 For convenience, I will first consider Ground 2.

**38 The Accused accepted that the preconditions set out at sub-paras [35](a)(i), (ii) and (iii) above were satisfied. However, he submitted that sub-paras [35](a)(iv) and (v) were not satisfied. He contended that the evidence presented before Cummins J in support of the application for the CPO did not enable satisfaction of the criteria that the alleged murder of Boyd 'formed part of systemic and continuing criminal activity' or that it had 'a purpose of obtaining profit, gain, power or influence'.

39 According to the Accused, the alleged murder of Boyd did not involve any 'system'. Likewise, the allegations that the alleged offenders were involved in other offending - namely, the Hamilton kidnapping and drug matters - and that the murder of Boyd was motivated by drug issues, did not mean that the murder was more than a 'one-off' murder.

40 The effect of the failure to satisfy all the elements of the definition of 'organised crime offence', according to the Accused, was that the CPO was not made in respect of an organised crime offence and therefore, the Court did not have jurisdiction to make it.[11]

42 The transcripts of the hearings before Cummins J on 22 April 2008, 13 August 2008 and 9 October 2008 clearly indicate that his Honour was well aware of the definition of 'organised crime offence' and its requirements. The transcripts also reveal that his Honour considered those requirements and satisfied himself that they were met before making the CPO.

43 The Accused's submission that the CPO was made without jurisdiction because two of the elements of the definition of 'organised crime offence' were not satisfied amounts to no more than an assertion that the material adduced in support of the making of the CPO was insufficient. It is well established that this is not a permissible ground of collateral challenge.[12]

Relevant provisions of the Charter and the Act

**45 Part 2 of the Charter (ss 7 to 27) sets out a number of human rights that Parliament 'specifically seeks to protect and promote' (s 7(1)).

46 One of those human rights is the right to a fair hearing. This is set out in s 24(1) of the Charter, which relevantly provides that a person charged with a criminal offence 'has the right to have the charge ... decided by a competent, independent and impartial court or tribunal after a fair and public hearing'.

47 Another human right is the right not to incriminate oneself. This is set out in s 25(2)(k) of the Charter, which provides that a person charged with a criminal offence is entitled, without discrimination, to a number of minimum guarantees including that he or she will 'not ... be compelled to testify against himself or herself or to confess guilt'.

48 Section 1(2)(c) of the Charter provides that one of the means by which the Charter seeks to protect and promote human rights is by imposing an obligation on all public authorities 'to act in a way that is compatible with human rights'. Section 6(2)(c) provides that the Charter applies to 'public authorities, to the extent that they have functions under Division 4 of Part 3'.

49 The definition of 'public authority' in s 4(1) of the Charter provides that it does not include the following:**

(j) a court or tribunal except when it is acting in an administrative capacity; ...

Note

Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

50 Division 4 of pt 3 of the Charter (ss 38 and 39) deals with the obligations of public authorities. Sections 38 and 39 relevantly provide:

38 Conduct of public authorities

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

39 Legal proceedings

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(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.

Did the Charter apply to the making of the CPO?

**52 The Accused submitted that this Court was acting in an administrative capacity when Cummins J made the CPO, and was therefore a 'public authority' for the purposes of the Charter.

53 The DPP did not make any submissions on this issue.

54 In R v Debono,[13] I held that the Supreme Court's power to make a coercive powers order under s 8 of the Act is administrative rather than judicial;[14] and that the power must be exercised judicially, that is, 'in a just and fair manner, with judicial detachment'.[15] These conclusions do not determine whether this Court was a 'public authority' for the purposes of s 38 of the Charter when Cummins J made the CPO. That question requires consideration of whether there is a distinction between acting in an 'administrative capacity' and performing an 'administrative function' in the making of a coercive powers order under the Act. A key issue is whether the fact that the power to make a coercive powers order must be exercised in a judicial manner, with all the attributes set out in R v Debono,[16] means that this Court does not act an administrative capacity when making such an order.

55 There is no direct authority on that question. In P J B v Melbourne Health (Patrick's case),[17] Bell J discussed in detail the interpretation of s 4(1)(j) of the Charter in the context of the exercise by the Victorian Civil and Administrative Tribunal ('VCAT') of the power to appoint an administrator over the estate of a person suffering from a mental illness. His Honour held that, in exercising that power, the VCAT was acting in an administrative capacity and was therefore a public authority under s 4 of the Charter.[18] In reaching that conclusion, his Honour gave considerable weight to the note under s 4(1)(j) of the Charter.[19]

56 In the present case, as the DPP did not make any submissions on the question of whether this Court was acting in an administrative capacity when Cummins J made the CPO, I am prepared to assume, without deciding, that it was so acting. However, this judgment should not be taken as endorsing this proposition.**

Was the CPO invalid under s 38 of the Charter?

**57 For the reasons set out at [56] above, the discussion at [58] to [73] below assumes that when Cummins J made the CPO, this Court was acting in an administrative capacity and was therefore a 'public authority' for the purposes of the Charter.

58 The Accused submitted that, in deciding whether to make the CPO and what, if any, conditions should be attached to it, this Court was required to act compatibly with, and give proper regard to, the Accused's human rights. Contrary to that obligation, so it was said, this Court acted in a way that was incompatible with the Accused's human rights and made its decision without giving proper consideration to those human rights. According to the Accused, although he had not been charged with the murder of Boyd, this Court was required to consider the fair hearing right and the self-incrimination right because of the potential for charges to be laid against him at some future time. Cummins J failed to adequately consider these rights, so it was said, because he considered them only to the limited extent of the pending drug trials of the alleged offenders.

59 In relation to s 38(2) of the Charter, the Accused contended that this Court could have made a different decision, such as imposing a condition on the CPO that ensured that derivative use immunity attached to any evidence he gave before the Chief Examiner.

60 The Accused relied on the decision of Warren CJ in Re Application Under the Major Crime (Investigative Powers) Act 2004,[20] which was delivered on 7 September 2009, after the making of the CPO and the Custody Order and after the Accused allegedly committed an offence under s 36(3) of the Act. In that case, her Honour held that to interpret s 39 of the Act as not conferring derivative use immunity would constitute a breach of ss 24(1) and 25(2)(k) of the Charter.[21] According to her Honour, in order for the inadmissibility provisions of s 39 of the Act to be compatible with the Charter, they must be interpreted as applying not only to incriminating information provided directly, but also to incriminating evidence derived from that information.[22] Warren CJ stated that, in interpreting s 39 of the Act, derivative use immunity must be extended to a witness interrogated pursuant to the Act where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness.[23]

61 The Accused submitted that, as a result of this Court's non-compliance with ss 24(1) and 25(2)(k) of the Charter, s 38 had the effect that the CPO was unlawful.

62 For the reasons that follow, the Accused's reliance on Re Application is misconceived.

63 In that case, a coercive powers order was made subject to the condition that any person who had been charged with any offence linked to the organised crime offence the subject of the order would not be summoned to give evidence at an examination until the nature of the relationship between the powers of investigation of organised crime offences in the Act, and the rights guaranteed by ss 24(1) and 25(2)(k) of the Charter, had been determined. An application was then made to vary the order so as to remove that condition.

64 In considering the application, Warren CJ identified the issue for determination as: 'is it lawful, having regard to the directions of the Charter, for the chief examiner when exercising his or her functions under the Act, to compel a person who has been charged with an offence to answer questions relevant to the proof of that offence, or offences linked to that offence, which are not for direct use but can lead to derivative use?'[24]

65 In the present case, the Accused was facing charges when the application for a coercive powers order was first heard by Cummins J on 22 April 2008, but his Honour declined to make the order on that day. In doing so, Cummins J considered s 25(2)(k) of the Charter. However, when his Honour made the CPO on 13 August 2008, corrected it on 9 October 2008 and extended it on 10 February 2009, the Accused was no longer subject to any pending charges. Accordingly, on those days, the issue that arose in Re Application did not arise in relation to the CPO. It follows that, in the present case, no occasion has arisen for the application of s 39(3) of the Act or a breach of s 24(1) or s 25(2)(k) of the Charter.

66 Warren CJ referred to the parties' submissions that the Court had two options in relation to the issue before it. The first option was to read into s 39 of the Act words providing for derivative use immunity. The second option was to reinterpret the Court's powers under ss 8 and 9(g) of the Act so as to require the Court to consider the right against self-incrimination in determining whether to make a coercive powers order and what conditions to impose.[25] Her Honour adopted the first option for the following reasons:**

I am of the view that interpreting s 39 of the Act consistently with the rights in ss 24(1) and 25(2)(k) of the Charter is the proper approach. The Charter requires derivative use immunity and that ought to be recognised at an early stage so that all affected operate on a clear understanding of legal rights and obligations. From the perspective of the bearer of the right, early confirmation of the right against self-incrimination is preferable to contingent protection at a later stage. In my view, requiring judges to systematically evaluate whether a condition should be imposed at the making of a coercive powers order falls victim to the 'great unknown' of the future procedural steps in the Act. The trial judge may never have sufficient information available to him or her to make such an order, even where one may be required at a later stage. I have

already discussed the difficulties that arise from the lack of court supervision in these circumstances.[26]

**67 As Warren CJ expressly rejected the proposition that, at the time of determining whether to make a coercive powers order and what conditions to impose on such an order, this Court is obliged to apply ss 24(1) and 25(2)(k) of the Charter, Re Application does not provide any basis for finding that Cummins J breached those sections.

68 Moreover, s 39(3) of the Act applies at the time that evidence is sought to be admitted against a person who has previously been examined under the Act. Although in Re Application, Warren CJ said that 'derivative use immunity ... ought to be recognised at an early stage so that all affected operate on a clear understanding of legal rights and obligations',[27] her Honour acknowledged that ss 24(1) and 25(2)(k) of the Charter were engaged only after a person has been charged.[28] In the present case, the rights in those sections were never engaged.

69 Even if it is accepted that the issue of derivative use immunity can arise when a person is asked questions at an examination under the Act prior to being charged, the issue did not arise in that context in the present case. This is because, as a result of the Accused's failure to take an oath or make an affirmation, the examination of the Accused before the Chief Examiner did not reach the stage where the Accused was asked any questions that may have attracted the immunity.

70 At the hearing before Cummins J on 22 April 2008, Ms Pavlou stated that the Act did not confer derivative use immunity. However, his Honour neither agreed nor disagreed with this proposition. Even if it can be inferred that his Honour agreed with the proposition, for the reasons that follow, this could not have made any difference to the outcome of the application for a coercive powers order.

71 I do not accept the Accused's contention that Cummins J could have acted differently by imposing a condition on the CPO that ensured that derivative use immunity attached to any evidence given by him before the Chief Examiner. If, as has occurred, the Court interpreted s 39 as conferring derivative use immunity, the condition would have been superfluous. On the other hand, if the Court had interpreted s 39 as not conferring derivative use immunity, such a condition would have been void because it would have been inconsistent with that section.

72 Responsibility for giving effect to the immunity in s 39 of the Act in the case of the Accused would have fallen on the judge hearing criminal charges against him. At such a trial, the judge would have been compelled to give effect to the then prevailing interpretation of s 39 of the Act. As such a trial would have occurred after Warren CJ's decision in Re Application, the Accused would have had the benefit of derivative use immunity consistently with the human rights conferred by ss 24(1) and 25(2)(k) of the Charter.

73 For the above reasons, even if it is assumed that this Court was acting in an administrative capacity at the time Cummins J made the CPO, and was therefore a 'public authority' for the purposes of the Charter, the Court did not act incompatibly with any human right conferred by the Charter on the Accused.**

Is the condition in s 39 of the Charter satisfied?

**74 As I have concluded that this Court did not breach s 24(1) or s 25(2)(k) of the Charter, the question of the consequences of such a breach under ss 38 and 39 does not arise. However, as the Accused made submissions on this issue, I will briefly discuss it.

75 Section 39 of the Charter provides, in effect, that a person may seek relief in respect of any unlawfulness arising from a breach of the Charter by a public authority only where he or she 'may seek' relief 'otherwise than because of [the] Charter' on the ground that an act or decision of the public authority was unlawful. Accordingly, the right to seek relief under s 39 is conditional upon the exercise of an available right to seek relief independently of the Charter. The scope of this condition is discussed further below.

76 The Accused submitted that the condition in s 39 of the Charter was satisfied because the validity of the CPO may be challenged in separate judicial review proceedings under O 56 of the Rules - including on the ground of error of law on the face of the record - and by way of collateral challenge. The DPP was content to proceed on the basis that the availability of collateral challenge satisfied s 39 of the Charter.

77 In Director of Housing v Sudi,[29] the Victorian Court of Appeal discussed the scope and operation of s 39 of the Charter. Maxwell P stated:**

Plainly enough, s 39(1) has an operation which is both conditional and supplementary. The condition to be satisfied is that a person be able to seek, independently of the Charter, 'any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful'. If - but only if - that condition is satisfied, then s 39(1) enables that person to seek 'that relief or remedy' on a supplementary ground of unlawfulness, that is, unlawfulness arising because of the Charter.

The condition for the operation of s 39(1) is clearly satisfied in the case of an application for judicial review. Whether at common law (in accordance with the procedures under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)) or under the Administrative Law Act 1978 (Vic), a person may seek 'relief or remedy' in respect of decisions of public officials on grounds of unlawfulness. It is less clear, however, whether the condition would be satisfied in a proceeding where collateral review was available. Let it be assumed that a defendant to a criminal proceeding was able to make a collateral challenge, in that proceeding, to the legal validity of an administrative act on which the prosecution case depended. Could it be said that the defendant in that case was able to 'seek a relief or remedy' on the ground of unlawfulness?[30]

Section 39 seems to envisage that the various human rights provisions contained in the Charter will, in future, influence the conduct of, and outcome in, pre-existing forms of action. For example, if a claim requires, as an element, that there be proof of unlawful conduct, it seems that the Charter can be invoked as the basis for a finding of that kind. However, the Charter itself does not create a new remedy. The implication of s 39 is that there is no new cause of action for breach of any Charter right.

Courts are under no obligation under the Charter to create any new remedies.

It was anticipated by the drafters of the Charter that there would be some expansion in the field of existing administrative law remedies as the basis upon which human rights could be enforced. In this State, that effectively means that the supervisory jurisdiction of the Supreme Court, using the procedure in O 56 of the Supreme Court (General Civil Procedure) Rules 2005, as well as this Court's powers to grant declaratory and injunctive relief, can be invoked by way of Charter protection.

... judicial review, whether under O 56 or under the Administrative Law Act 1978 is, in this country, quite limited in scope. The fact that contravention of the Charter may form the basis for an application for judicial review does not mean that the constraints imposed upon such relief are, by virtue of s 39, no longer present.

...

... it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in - and only in - a proceeding the object of which is to seek 'relief or remedy in respect of an act or decision of a public authority on the ground that ... [it] was unlawful. That would, by definition, confine such relief to a direct challenge ..., and would exclude any possibility of collateral review.[31]

**79 It was not necessary for the Court of Appeal in Sudi to determine whether a person's ability to collaterally challenge the legal validity of an administrative act satisfied the condition in s 39(1) of the Charter, because the legislative scheme in that case did not permit collateral challenge.

80 In Sabet v Medical Practitioners Board of Victoria,[32] Hollingworth J described the effect of s 39(1) of the Charter as follows:**

The Charter was not intended to create new causes of action against public authorities, additional to those already available outside the Charter - which, in this case, are available to Dr Sabet under the [Administrative Law Act 1978]. Rather, s 39 of the Charter provides that if a person otherwise has a right to seek relief or remedy on the basis that a public authority's decision was unlawful, then the person may seek that same relief or remedy on the ground that the act or decision was unlawful because of the Charter.

... Dr Sabet seeks relief in the nature of certiorari and an injunction, on the ground of denial of natural justice. The effect of s 39 is that he may also seek that same relief on the ground that the decision was unlawful under the Charter (in this case, unlawful under s 38). It is not necessary that the grounds of review are the same under the Charter and the [Administrative Law Act 1978], merely that the relief or remedy sought is the same.[33]

**81 In Patrick's case,[34] Bell J stated that, where relief can be sought independently of the Charter, the relief can be granted on the ground of unlawfulness under the Charter irrespective of whether relief is granted on the non-Charter grounds.[35] His Honour added that, where Charter unlawfulness is established, the relief that could be sought on non-Charter grounds can be granted on the ground of Charter unlawfulness, whether or not the non-Charter grounds are determined.[36]

82 Accordingly, it appears that the mere exercise of an available right to seek relief or remedy in respect of an act or decision of a public authority on a ground that is independent of the Charter is sufficient to satisfy the condition in s 39 of the Charter; that is, s 39 does not depend upon a successful exercise of that right based on the non-Charter ground. However, if a right to seek relief or remedy in respect of an act or decision of a public authority is not available independently of the Charter, no relief or remedy can be granted where the act or decision is unlawful under s 38(1) of the Charter.

83 In the present case, the Accused was not entitled to seek relief pursuant to the Administrative Law Act 1978 ('AL Act') because this Court is not a 'tribunal' for the purposes of that Act.[37]

84 Likewise, for the reasons set out in BCD v Chief Examiner,[38] the Accused is not entitled to seek relief by way of an order under O 56 of the Rules or a revocation order under s 12 of the Act. In my opinion, the fact that the right to seek such relief may have been available to the Accused at an earlier time is insufficient. The time for determining whether a person is entitled to seek relief independently of the Charter, and thus whether he or she satisfies the condition in s 39 for the purpose of establishing unlawfulness under s 38, is when s 38(1) is sought to be invoked. In the present case, at the time that the Accused sought to invoke s 38(1) by virtue of his submissions dated 7 December 2012, he was precluded from seeking relief under O 56 of the Rules and s 12 of the Act.

85 The only possible avenue for seeking relief which could satisfy the condition in s 39 of the Charter is an application under s 199(1)(c) of the CP Act to collaterally challenge the validity of the CPO. As discussed at [77] and [78] above, in Sudi, Maxwell P and Weinberg JA left open the question of whether relief by way of a collateral challenge to the validity of an administrative act in a criminal proceeding satisfies the condition in s 39 of the Charter. Warren CJ did not expressly deal with this issue.

86 In my opinion, whatever the position may be in respect of any other collateral challenge in a criminal proceeding, the Accused's application under s 199(1)(c) of the CP Act for an order quashing the charge satisfies the condition in s 39 of the Charter. This is because, independently of the Charter, the Accused has availed himself of the right under s 199(1)(c) of the CP Act to seek relief or remedy, in the form of an order quashing the charge, on the ground that a decision of a public authority was unlawful. The decision is the CPO and the public authority is this Court, which I have assumed, for present purposes, was acting in an administrative capacity at the time that Cummins J made the CPO.

87 The application under s 199(1)(c) of the CP Act is based on the two grounds set out at [36] above. Ground 2 is independent of the Charter. The fact that I have not upheld ground 2 does not alter the fact that the Accused was entitled to seek relief under s 199(1)(c) based on that ground.

88 It follows that, if, contrary to my conclusion at [73] above, I had found that this Court had breached s 24(1) or s 25(2)(k) of the Charter at the time that Cummins J made the CPO, s 39 of the Charter would not have prevented the Accused from seeking relief on the ground that the CPO was unlawful under s 38(1). In any proceeding for such relief, the Court would be required to consider the nature of the 'unlawfulness' and whether it must be established that the public authority's failure to comply with s 38 of the Charter when making a decision constitutes a jurisdictional error or an error that appears on the face of the record of th[39] decision.39 In the present case, it is unnecessary for me to consider these issues.**

**89 The Accused contended that, as the CPO was unlawful pursuant to s 38 of the Charter, this constituted an excess of power and that this was an error of law appearing on the face of the record.[40] The record was said to be the CPO and the error that was said to appear on the face of the CPO was the absence of a condition precluding derivative use of evidence given before the Chief Examiner.

90 For the reasons discussed at [62] to [73] above, this Court did not exceed its jurisdiction or err in law in making the CPO. In particular, this Court did not make an error of law by failing to include in the CPO a condition precluding derivative use of evidence given before the Chief Examiner.**

91 For the above reasons, Ground 1 has not been established.

92 The Accused relied upon the following ground to challenge the validity of the Custody Order:

The [Custody Order] was unlawful because it was not made compatibly with, and/or failed to give proper consideration to the accused's human rights, including his right to a fair trial and privilege against self incrimination in sections 24(1) and 25(2)(k) of [the Charter], contrary to section 38 of the Charter.

PARTICULARS

(a) the accused was a suspect in the murder of Wayne Boyd;

(b) The Chief Examiner issued the [Custody Order] for the purpose of coercively examining the accused in relation to the alleged murder;

(c) the Chief Examiner knew that the CPO did not provide any condition in relation to derivative use immunity; and

(d) at the time of making the [Custody Order] the Chief Examiner failed to have any regard to the accused's human rights including those contained in the Charter.

**93 The DPP correctly conceded that the Chief Examiner is a public authority for the purposes of the Charter pursuant to para (b) of the definition of 'public authority' in s 4 of the Charter. Paragraph (b) provides that 'an entity established by a statutory provision that has functions of a public nature' is a public authority.

94 The Accused's submissions in support of Ground 1 for the invalidity of the CPO were also relied upon in support of the invalidity of the Custody Order. The Accused further submitted that, as the Chief Examiner's reasons[41] for the making of the Custody Order did not refer to the Charter, the Chief Examiner failed to have regard to the Charter and to the Accused's human rights. In addition, the Accused submitted that, as the Chief Examiner knew that the Accused would have no protection in relation to the derivative use of any evidence provided by him,[42] the Chief Examiner could not have reasonably been satisfied that it was reasonable for him to make the Custody Order.[43]

95 The above submissions assume that ss 24(1) and 25(2)(k) of the Charter applied at the time that the Chief Examiner made the Custody Order. This assumption is incorrect. Sections 24(1) and 25(2)(k) apply to a person who has been charged with a criminal offence. At the time the Custody Order was made, the Accused was not the subject of any pending criminal charges. For this reason, and generally for the reasons set out at [62] to [73] above, Ground 1 in relation to the Custody Order is misconceived and must be rejected.**

**96 For the above reasons, the Accused's pre-trial application under s 199(1)(c) of the CP Act will be dismissed.

97 I will hear from the parties on the directions to be made for the further conduct of the criminal trial.**

[1] The Crown conceded that the Accused cannot be convicted unless it proves the validity of both orders.

[2] See R v AX [2009] VSC 153 (22 April 2009); BCD v Chief Examiner [2012] VSC 193 (11 May 2012) ('BCD'); R v Debono [2012] VSC 350 (21 August 2012); R v Debono [2012] VSC 476 (17 October 2012).

[3] See BCD [2012] VSC 193 (11 May 2012).

[4] R v Debono [2012] VSC 350 (21 August 2012).

[5] An identical subpoena was served on the Chief Examiner. As this subpoena was ultimately not pursued, I will not refer to it further.

[6] R v Debono [2012] VSC 476 (17 October 2012).

[7] R v Debono [2012] VSC 350 (21 August 2012) [181] (citations omitted).

[8] See R v Debono [2012] VSC 350 (21 August 2012) [163]-[181] and the authorities cited in that case.

[9] R v Debono [2012] VSC 476 (17 October 2012) [34].

[10] The Accused gave notice of the Charter ground to the Attorney-General for Victoria and to the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35(1) of the Charter, but they did not intervene.

[11] In the course of oral argument, the Accused abandoned his written submission that Cummins J exceeded his jurisdiction by misconstruing the definition of 'organised crime offence'.

[12] See [34] and n 8 above.

[13] [2012] VSC 350 (21 August 2012).

[14] R v Debono [2012] VSC 350 (21 August 2012) [77]. In reaching this conclusion, I relied on Love v A-G (NSW) (1990) 169 CLR 307, 322-3 ('Love'); Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 359-60, 379, 386, 389; Ousley v The Queen (1997) 192 CLR 69, 84-5, 87, 100, 121, 130, 145-6; and X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413, 421 [32].

[15] R v Debono [2012] VSC 350 (21 August 2012) [78]. In reaching this conclusion, I relied on Love (1990) 169 CLR 307, 322; CR v A-G (Vic) [2007] VSC 263; (2007) 173 A Crim R 343, 359 [59]; C v Chief Commissioner of Police [2008] VSC 51; (2008) 20 VR 174, 184 [29].

[16] [2012] VSC 350 (21 August 2012) [37]-[41], [62]-[78], [98]-[110], [114]-[119], [125]-[131], [142]-[148].

[17] [2011] VSC 327 (19 July 2011) ('Patrick's case').

[18] Patrick's case [2011] VSC 327 (19 July 2011) [123]-[129].

[19] Patrick's case [2011] VSC 327 (19 July 2011) [118]-[119].

[20] [2009] VSC 381; (2009) 24 VR 415 ('Re Application').

[21] Re Application [2009] VSC 381; (2009) 24 VR 415, 435 [84].

[22] Re Application [2009] VSC 381; (2009) 24 VR 415, 435 [84].

[23] Re Application [2009] VSC 381; (2009) 24 VR 415, 455 [177].

[24] Re Application [2009] VSC 381; (2009) 24 VR 415, 422 [28] (emphasis added).

[25] Re Application [2009] VSC 381; (2009) 24 VR 415, 453 [165].

[26] Re Application [2009] VSC 381; (2009) 24 VR 415, 453 [167]. For the purposes of the present case, I need not consider whether Warren CJ's reasoning is consistent with R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436 and Momcilovic v The Queen (2011) 245 CLR 1.

[27] Re Application [2009] VSC 381; (2009) 24 VR 415, 453 [167].

[28] Re Application [2009] VSC 381; (2009) 24 VR 415, 452 [161]-[162]. See also Sabet v Medical Practitioners Board of Victoria [2008] VSC 346; (2008) 20 VR 414, 434-5 [138]-[139] ('Sabet').

[29] [2011] VSCA 266 (6 September 2011) ('Sudi').

[30] Sudi [2011] VSCA 266 (6 September 2011) [96]-[97] (citation omitted).

[31] Sudi [2011] VSCA 266 (6 September 2011) [215]-[218], [282] (citations omitted).

[33] Sabet [2008] VSC 346; (2008) 20 VR 414, 430 [104]-[105] (citation omitted; emphasis in original).

[34] [2011] VSC 327 (19 July 2011).

[35] [2011] VSC 327 (19 July 2011) [297].

[36] [2011] VSC 327 (19 July 2011) [299], [303].

[37] Section 2 of the AL Act provides that a court of law is not a tribunal for the purposes of that Act.

[38] [2012] VSC 193 (11 May 2012).

[39] Sudi [2011] VSCA 266 (6 September 2011) [49], [214], [271].

[40] During oral argument, the Accused abandoned his written submission that the CPO was tainted by impropriety.

[41] Section 15(6) of the Act, read in conjunction with s 18(4), provides that, on making a custody order, the Chief Examiner must record in writing the grounds on which the custody order is made.

[42] The Accused relied on the fact that, at the hearing on 21 May 2009, the Chief Examiner informed him that any evidence he gave, and any documents he produced, would not be admissible against him, but the Chief Examiner did not mention derivative use immunity.

[43] Section 15(4) of the Act, read in conjunction with s 18(4), provides that the Chief Examiner may make a custody order if he or she 'is satisfied that it is reasonable in the circumstances to do so', after considering certain specified matters.

Crime (Investigative Powers) Act 2004

Human Rights and Responsibilities Act 2006

Major Crime (Investigative Powers) Act 2004

Court (General Civil Procedure) Rules 2005

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