Investigations conducted by the Office of Chief Examiner (‘OCE’) are intended to obtain evidence for use in prosecutions for organised crime offences through the use of coercive powers. The statutory role of the Chief Examiner was instituted in reaction to Victoria’s ‘gangland war’ with the aim of granting Victoria Police investigators indirect access to coercive powers.
By and large, once Victoria Police investigators have conducted an investigation, they will approach the OCE in order to make use of the powers provided for in the Major Crime (Investigative Powers) Act 2004 (Vic) (‘the Act’) through the Chief Examiner.
Unlike the Australian Crime Commission, the Office of Chief Examiner does not have an investigative capacity in and of itself. Fundamentally, the OCE acts as a support service to Victoria Police investigators and is comprised of a range of personnel, including lawyers, intelligence officers and other managers.
What is covered by an Office of Chief Examiner investigation?
The Act provides that the Chief Examiner must investigate organised crime offences only at which point the Supreme Court of Victoria has granted a Coercive Powers Order (‘CPO’). The offence being investigated must comply with the Act’s definition of an ‘organised crime offence’ as follows:
an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more that–
(a) involves 2 or more offenders;
(b) involves substantial planning and organisation;
(c) forms part of systemic and continuing criminal activity; and
(d) has a purpose of obtaining profit, gain, power or influence or sexual gratification where the victim is a child.
A member of Victorian Police must submit an application and satisfy the Court of their suspicion on reasonable grounds that an organised crime offence has been, is being or is likely to be committed. The burden which the Police must meet in proving their reasonable suspicion is a comparatively low one. The Court must then consider the gravity and nature of the alleged offence(s) and assess whether public interest outweighs the impact to the involved persons, in granting a CPO. An area of concern for the Court’s consideration is that ‘traditional’ investigative techniques have been thus far unsuccessful in obtaining evidence of the alleged offence(s).
Once a CPO has been issued the Chief Examiner can conduct an investigation in relation to the relevant organised crime offence(s) listed on the CPO, essentially acting as Terms of Reference do for a Royal Commissioner. Again, proving what is relevant to those inquiries is comparatively easy to satisfy.
What powers does the Office of Chief Examiner use?
The Chief Examiner may exercise power to issue witness summonses for witnesses to attend and give evidence under oath or affirmation. Additionally, summonses referred to as ‘custody orders,’ for witnesses who are in custody, may be issued and those witnesses brought into an examination.
In granting a CPO, the Court may impose a condition that all applications for summonses be made to the Court, consequently restricting the power of the Chief Examiner. However, this condition is imposed rarely.
How do coercive powers operate?
Witnesses are impelled to attend and give evidence under threat of sanction. The Act includes a number of offences for failing to comply with a summons, give evidence or the giving of evidence that is false and misleading and, in addition, contempt proceedings can be issued by the Chief Examiner for conduct which would otherwise amount to a contempt of court, if the witness pursued a similar course of action in adversarial proceedings. The Act also explicitly abrogates the witness’s privilege against self-incrimination which would ordinarily apply in adversarial criminal proceedings. This is also subject to an immunity, denoting that any evidence obtained from a witness in an OCE investigation cannot be used directly against them. This has been viewed by the Court as extending to a derivative use immunity also. For instance, if a witness offers evidence that they shot a victim, this evidence may not be used against them. The witness may also reveal the whereabouts of the firearm, leading investigators to discover it. It is debatable whether the firearm itself could also be subject to the derivative use immunity, meaning investigators should not be able to rely on it in criminal proceedings. The effectiveness of using these powers in organised crime investigations is not in having witnesses incriminate themselves. It is, rather, it is the ability to ‘climb up the pyramid’ and gain evidence against those who are most culpable or hold an organisational role within a criminal organisation.
What happens next?
Witness summonses are subject to confidentiality notices. The fact of an examination having occurred and the nature of the evidence is generally the subject of a non-publication direction. Furthermore, infractions of these secrecy arrangements are subject to sanction. In the event that Police investigators require the evidence for prosecutorial purposes, they must apply to have the non-publication directions rescinded. Consequently, it is important to comprehend that whilst the examinations operate confidentially and in secret, the objective of the examination is ultimately to obtain evidence for use in court proceedings.
A criminal defence lawyer’s role
Legal advice in the lead-up to, during the course of and following an examination is imperative. Particularly crucial is a witness’s full comprehension of the non-publication direction made. If the direction is ambiguous (as is often the case), it should be amended accordingly. Similarly, should a witness have concerns regarding the conduct of the examination, a legal representative should be on hand to seek injunctive relief in the Supreme Court. While the Chief Examiner is overseen by the Special Investigations Monitor, witnesses are not offered immediate protection against any derogation of their rights beyond what is permissible under the Act.In the event that the Chief Examiner finds a witness in contempt, the witness should contact a criminal defence lawyer immediately, as the witness is formally arrested and brought before the Supreme Court. It can be a lengthy process before witnesses are charged with other offences under the Act, therefore they should carefully consider having a legal representative who is familiar with their matter from beginning.
Once the examination is behind them, the witness should also maintain ongoing advice and communication with their defence lawyer. This is particularly significant when it is time for non-publication directions to be rescinded. It is crucial that the rescission of the non-publication direction be properly contested so that the witness’s evidence remains in confidence. Having the best defence counsel is vital as the witness may hold serious concerns regarding their safety and their life.
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