Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. 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.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights: Continue reading