Jean Ross (a Pseudonym) v The Chief Commissioner of Police and Anor

(2014) 45 VR 220; [2014] VSCA 254

Victorian Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Competency of appeal
3. › Criminal proceedings
4. › Whether determination made 'on or in relation to' trial on indictment
5. › Nexus between order and criminal trial
6. › Whether privative clause bars appeal
7. › Supreme Court Act 1986 (Vic), s 17A(3)
1. Statutory Interpretation
2. › Major Crime (Investigative Powers) Act 2004 (Vic)
3. › Release of restricted evidence
4. › Construction of ss 43A and 43B
5. › Whether s 43A limited to release for benefit of accused
6. › Relationship between s 43A and s 43B
7. › Role of section headings
8. › Re-enactment of judicially construed provisions
9. › Interpretation of Legislation Act 1984 (Vic), s 36(2A)
1. Criminal Law
2. › Investigation
3. › Coercive powers
4. › Restricted evidence
5. › Release of restricted evidence to person charged and Director of Public Prosecutions
6. › Whether interests of justice require release
7. › Balancing public interest in prosecution against witness safety
8. › Major Crime (Investigative Powers) Act 2004 (Vic), ss 43, 43A, 43B
1. Administrative Law
2. › Procedural fairness
3. › Right to be heard
4. › Whether judge acted on undisclosed material
5. › Whether denial of procedural fairness occasioned substantial miscarriage of justice

Quick Take

Section 43A of the Major Crime (Investigative Powers) Act 2004 (Vic) permits the release of restricted evidence both for the benefit of the accused and to assist the prosecution; it is not limited to release for the accused's defence. Section 43A is the exclusive mechanism for release after a person is charged, while s 43B applies only before charge. When balancing the interests of justice under s 43A, the court must weigh the public interest in prosecution against witness safety, but is not required to consider the hypothetical deterrent effect on future witnesses. An order under s 43A is not a determination 'on or in relation to' a criminal trial for the purposes of s 17A(3) of the Supreme Court Act 1986 and is therefore appealable.