48Production and inspection of protected documents and things in criminal proceedings

48 Production and inspection of protected documents and things in criminal proceedings (1) This section applies if, in a criminal proceeding— S. 48(1)(a) amended by No. 30/2016 s. 17. (a) a subpoena is issued for a protected person to produce any document or other thing that the protected person has created or that has come into his or her possession or control in the performance of the duties and functions or the exercise of the powers of the person or the IBAC under this Act or any other Act; and (b) the protected person objects, on the basis that the document or other thing is a protected document or other thing, to— (i) the production of the document or other thing in the criminal proceeding; or (ii) the inspection of the document or other thing by one or more parties to the criminal proceeding. (2) The protected person must— (a) give notice of the objection to each party to the criminal proceeding, indicating the category of the document or other thing; and (b) apply to the court hearing the criminal proceeding to determine the application— (i) by confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or (ii) at a hearing held in closed court in which the protected person and each party to the proceeding has a right to be heard by the court regarding the objection; or (iii) 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 (iv) by any combination of the methods set out in subparagraphs (i) to (iii). (3) If the court is satisfied that it is not in the public interest to determine the application under subsection (2) by the method elected by the protected person, the court may determine the application by any other method set out in subsection (2)(b) that it thinks fit. (4) In deciding which method to use to determine the application, the court must take into account— S. 48(4)(a) amended by No. 31/2024 s. 113(Sch. 1 item 16.13). (a) the public interest in protecting the confidentiality of any secret investigative method used by the IBAC, Integrity Oversight Victoria, a law enforcement agency or an integrity body and documents and other things in the possession or control of the IBAC; and (b) the extent to which the method of determining the objection which is the subject of the application may disclose information that— (i) reveals the identity of an informer or puts an informer's safety at risk; or (ii) reveals the identity of a person who has been summoned, or who has appeared, as a witness in an examination, or puts that person's safety at risk; or (iii) reveals the identity of a person who has provided the IBAC with information relating to an investigation, or puts that person's safety at risk; or (iv) reveals the identity of a person whose name appears in any evidence given or information provided to the IBAC relating to an investigation, or puts that person's safety at risk; or (v) reveals the identity of a person who is or has been the subject of an investigation, or puts that person's safety at risk; or S. 48(4)(b)(vi) amended by No. 31/2024 s. 113(Sch. 1 item 16.13). (vi) places at risk an ongoing investigation under this Act or by Integrity Oversight Victoria, a law enforcement agency or an integrity body; or S. 48(4)(b)(vii) amended by No. 31/2024 s. 113(Sch. 1 item 16.13). (vii) places at risk the disclosure of any secret investigative method used by the IBAC, Integrity Oversight Victoria, a law enforcement agency or an integrity body; or (viii) it would otherwise not be in the public interest to disclose. (5) If the court determines the objection by the method of confidential affidavit set out in subsection (2)(b)(i), the court may require the protected person to provide the court with any further confidential affidavits the court requires to determine the objection. (6) Without limiting any other basis on which the court may refuse to require production of the document or other thing, or to allow a party to the criminal proceeding to inspect the document or other thing, the court must refuse to so require or allow if the court determines that the document or other thing is a protected document or other thing. (7) Subsection (6) does not apply if the party seeking production or inspection of the document or other thing satisfies the court that exceptional circumstances exist that require the production or inspection of the document or other thing. S. 49 inserted by No. 28/2012 s. 13.