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[2014] QCA 265
Court of Appeal (Holmes, Fraser and Gotterson JJA)
17 October 2014
In this recent case, the Court of Appeal had reason to address the content of the common-law principles of open justice and natural justice. The issues arose after the appellant’s unsuccessful application under s 25A(13) of the Australian Crime Commission Act (“the Act”), to compel the Australian Crime Commission (the “respondent”) to make available the transcripts of interviews it had conducted with his co-defendants – the fourth, fifth and sixth respondents. The appellant and the fourth, fifth and sixth respondents were charged with related drug offences and were all the subject of compulsory examination by the respondent. It was the evidence of these examinations which was the subject of a non-publication direction under s 25A(9) of the Act. [1]. Facing prosecution, the appellant applied under s 25A(13) for the transcripts of the evidence of the fourth, fifth and sixth respondents be made available to him. In the course of hearing this application, the primary court excluded the appellant and his representatives whilst taking submissions from the respondent. [8]–[18]. The application was subsequently refused, and it is this decision that was the subject of this appeal. Aside from arguments that the court had made an error of fact, the appellant also argued that the primary court, in excluding him and his representatives during the hearing amounted to a denial of procedural fairness.
Exclusion During Hearing
“The requirements of procedural fairness are not fixed, and they may certainly be modified by parliament.” [32]. The Act sets up a scheme whereby evidence the subject of a non-publication order pursuant to s 25A(9) may only be made available to the applicant where the court is initially satisfied that it may be in the interests of justice that this occurs, Australian Crime Commission Act, s 25A(12); and following an examination of the evidence “is satisfied that the interests of justice so require,” Australian Crime Commission Act, s 25A(13). It is only if, after this examination, the Court is satisfied that it would be in the interests of justice that the applicant have access to this evidence that the court will make it available. By this additional requirement that the court consider the subject matter of the application without disclosing it to the applicant, the legislature has effected a “substantial modification” of the rules of procedural fairness – the issue for the Court was whether this modification extended to “denying an applicant access to the submissions of an examinee with the contrary interest of preserving the material’s confidentiality”. [33]
In addressing this question, the Court, applying the general principles of statutory interpretation, looked to the Act for guidance. Turning to the purpose of the Act, the Court considered that though the Act was generally addressed to the public interest in the investigation of serious and organised crime, s 25A exists specifically to protect the interests of the person examined. Accordingly, the release of any material from an examination is prohibited unless and until the judge decides to release it. [37]. Given this structure, the Court concluded that, the purpose of ss 25A(9), (12) and (13) would be entirely defeated were the applicant not excluded from proceedings the subject of which were submissions relating directly to the content of the examination, regardless of the level of generality. [38]. The Court also noted that the appellant was not prevented from making submissions to the Court on any point he considered to be relevant to the consideration of the transcripts, including informing it of any defences he wished to raise and the areas of the Crown’s case that potentially related this. [45].
The Court also addressed the alternative procedures proposed by the appellant, namely that the Court could have appraised him, in general terms, of the topics raised whilst he was excluded or that the primary court could have provided his counsel with copies of the transcripts on appropriate undertakings. With regard the first suggestion, the Court considered that this would “have done nothing to improve his opportunity to be heard”. Further, with regards his second suggestion, the Court considered it imprudent to release these types of transcripts to counsel, holding it to be “untenable to expect counsel to examine the transcript . . . for the purpose of ascertaining whether he could ascertain any advantage to his client . . . and then, were provision of it refused, to put the entirety from his mind”. [43]. For the aforementioned reasons, the Court denied the appeal.