Area of Law – Crime Commissions & Confiscation of Proceeds

An Article about Office of Chief Examiner Investigations

An Article about Office of Chief Examiner Investigations
Office of Chief Examiner (‘OCE’) investigations are directed at obtaining evidence for use in prosecutions for organised crime offences through the use of coercive powers. The statutory role of the Chief Examiner was established following the so-called ‘gangland war’ to provide Victoria Police investigators with indirect access to coercive powers. That is, Victoria Police investigators will approach the OCE once they have conducted an investigation 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 OCE does not have an investigative capacity in and of itself. Rather, the OCE acts as a support service to Victoria Police investigators. In this respect, the OCE 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 only investigate organised crime offences once the Supreme Court of Victoria has granted a Coercive Powers Order (‘CPO’), the offence in question having to satisfy the definition of ‘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.

An Application is brought by a member of Victoria Police, who has to 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 is then required to assess whether the granting of a CPO is in the public interest. This involves the weighing up of the nature and gravity of the alleged offence(s) against the impact of the use of coercive powers on members of the community. The Court will be particularly concerned that ‘traditional’ investigative techniques have been unsuccessful in obtaining evidence of the alleged offence(s).

Once a CPO has been issued, it essentially acts as Terms of Reference do for a Royal Commissioner, meaning that the Chief Examiner can conduct an investigation in relation to the relevant organised crime offence(s) listed on the CPO. Again, the test of what will be relevant to those inquiries is comparatively easy to satisfy.

What powers does the Office of Chief Examiner use?
The Chief Examiner has the power to issue witness summonses for witnesses to attend and give evidence under oath or affirmation. Similarly, summonses referred to as ‘custody orders’ may be issued for witnesses who are in custody for those witnesses to be brought into an examination.

During the course of granting a CPO, the Court may impose a condition on the use of the CPO that all applications for summonses be made to the Court, thereby restricting the power of the Chief Examiner. However, instances of such a condition being imposed are relatively rare.

How do coercive powers operate?
There are a number of offences in the Act for failing to comply with a summons, give evidence or the giving of evidence that is false and misleading. 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. Therefore, witnesses must attend to give evidence under threat of sanction.

The privilege against self-incrimination which would ordinarily apply in adversarial criminal proceedings is expressly abrogated by the Act. However, this is subject to an immunity, meaning that evidence obtained from a witness cannot be used directly against them. This has been viewed by the Court as extending to a derivative use immunity also. For example, a witness may give evidence that they shot a victim. This evidence cannot be used against them. They may also reveal the location of the firearm, leading investigators to discover it. It is arguable that the firearm itself could also be subject to the derivative use immunity, meaning that investigators will not be able to rely on it in criminal proceedings. The strength of using such powers in organised crime investigations is not in having witnesses incriminate themselves. Rather, it is the ability to the ‘work up the tree’ towards those that are most culpable or have an organisational role within a criminal organisation.

What happens next?
Witness summonses are subject to confidentiality notices and the fact of an examination having taken place and the nature of the evidence given is commonly the subject of a non-publication direction. Infractions of these secrecy arrangements are also subject to sanction. Once Police investigators wish to use the evidence for prosecutorial purposes, they must apply to have the non-publication directions rescinded. So whilst the examinations operate under a cloak of secrecy, it is important to understand that the end purpose of the examination is to obtain evidence for use in court proceedings.

A criminal defence lawyer’s role
It is important to have advice in the lead-up to, during the course of and following an examination. In particular, it is crucial that witnesses understand the non-publication direction made and that, if it is ambiguous (as they often are), the direction is amended accordingly. Similarly, should issue be taken with the manner in which an examination is being conducted, it is crucial that a legal representative be on hand to in order to seek injuctive relief in the Supreme Court.

While the Chief Examiner is overseen by the Special Investigations Monitor, this oversight does not offer witnesses immediate protection against any derogation of their rights beyond what is permissible under the Act.

In the instance that a witness is found in contempt of the Chief Examiner, a lawyer will be required to deal with the matter immediately, as the witness is formally arrested and brought before the Supreme Court. Whilst it takes some time before witnesses are charged with other offences under the Act, it stands to reason that they ought to have a legal representative who is familiar with their matter from the outset.

Following an examination, ongoing advice is necessary, especially when it comes time for non-publication directions to be rescinded. Should a witness be in fear for their safety or life, it is crucial that the rescission of the non-publication direction be properly contested so that their evidence remains secret.

 

Date: 18/07/2011