The Charter vs OPI witnesses

News today that legislation intended to protect staff of the Office of Police Ingegrity may instead be protecting the people that Office prosecutes. According to the Herald Sun:

A LEGAL ambiguity may prevent investigators from the Office of Police Integrity (OPI) from testifying against corrupt police. The problem lies in an amendment made this year to laws empowering the OPI, according to reports today. Victoria’s chief prosecutor, Gavin Silbert, SC, told the County Court last month that the amendment had left “sufficient doubt as to the ability to call the OPI witnesses as part of the prosecution case”, the report said. The amendment is designed to protect OPI investigators from civil or criminal action unless they act in bad faith, and from having to testify in inappropriate circumstances, media reports said. But the law says OPI staff “cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this act”, potentially giving it a much wider than intended scope, according to the reports.

Although the provision in question was inserted into the Police Regulation Act 1958 by this year’s Police Integrity Act 2008, the problem has existed since 2004. In that year, a provision protecting the Police Ombudsman from being sued or called as a witness was extended. As the EM to the Major Crime (Investigative Powers) Bill 2004 explained:

The existing sub-sections had prevented persons bringing civil or criminal proceedings against the Police Ombudsman without leave of the Supreme Court. The Police Ombudsman is to be replaced by the Director, Police Integrity. The new sub-sections reproduce this protection but extend it to members of staff of the Director and other persons who have taken an oath or affirmation. This clause also substitutes a new sub-section (5) for the existing sub-section (5). The existing sub-section (5) prevents the Police Ombudsman from being called to give evidence while the new sub-section extends this protection to members of staff of the Director and other persons who have taken an oath or affirmation.

The new amendments replicated this section alongside more complex ones regualting the potential role of OPI personnel and documents in legal proceedings.

The problem arises because of a mis-match between the current sub-section 86KJ(6) – the successor to the old sub-section 86(5) and the other parts of the section:

86KJ General protection of protected persons

(1) A protected person is not liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith.

(6) A protected person cannot be called to give evidence in any court or in any legal proceedings or before the Appeals Board in respect of any matter coming to his or her knowledge in the exercise of functions under this Act.

Whereas the early section are all about proceedings against OPI staff, sub-section (6) is expressed to be about ‘any legal proceedings’, including prosecutions. Read literally, it goes beyond protecting OPI staff to protecting the confidentiality of the information they learn, which is at odds with the heading to the section.

There would seem to be an argument that the reference to ‘legal proceedings’ in s86KJ(6) should be read as limited to the proceedings mentioned in s. 86KJ(1). This argument was easier to make under the old s86J(5), where there was no general definition of ‘protected persons’ and, instead, the witness immunity was for witnesses mentioned in the old s86J(1), thus connecting the two provisions. The EM to the Police Integrity Bill did specifically link the new s86KJ to the old s86J, but it does seem that it would be a stretch to read the new section in this narrow way.

But perhaps the Charter’s interpretetation mandate can save the day. The literal reading of s86KJ(6) would not only interfere with prosecutions that depend on what OPI staff witnessed, but also on the more nuanced provisions introduced by the Police Integrity Act 2008 regulating the admission of ‘protected documents’. That regime governs what happens when a protected person objects to releasing an OPI document; in criminal prosecutions, the court has the role of determining whether the document falls within a specific protected category and also whether, in any case, exceptional circumstances require its admission. If OPI staff are completely barred from being called as a witness in criminal prosecutions, then the defence may find it difficult to introduce any protected documents that are admitted or to cross-examine the authors of those documents on their meaning. More generally, defendants will have less access to information contained in OPI staff’s heads than is wrtten in their documents. The inability to call or cross-examine OPI witnesses might seem to run counter to these Charter protections:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and

(h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution;

But, alas, the provisos to these two rights seem to get in the way. The proviso to s25(2)(g) is satisfied: s86KJ(6) otherwise provides! (Elsewhere, I’ve criticised the proviso to s25(2)(g) as ludicruously overbroad.) And so is the proviso to s25(2)(h), as the prosecution seems to under exactly the same disadvantage as the defence when it comes to calling OPI staff.

Happilly, there’s a more general right that can overcome these two provisos:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The argument, of course, is that a blanket ban on calling an important category of witnesses is incompatible with the right to a fair hearing. Note that this is a claim that only defendants can make; they lose out by not being able to call OPI witnesses. The state loses out too (and more), of course, but they don’t have a right to a fair hearing; just defendants. (And, elsewhere, I’ve complained about that too.)

Anyway, I wonder if the prosecution can invite the court to reinterpret s86KJ(6) more narrowly (as limited only to proceedings against the protected person) on the basis that the broader reading would be incompatible with defendants’ Charter right to a fair hearing? Or is that an argument that only a defendant can make (and why would defendants in current matters want to make the prosecution’s job easier?)

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