The Supreme Court has heard an application to close an IBAC hearing into a culture of violence within the Victoria Police in Ballarat.
On 15th April 2015 an Independent Broad-Based Anti-Corruption Commission (IBAC) hearing into a potential culture of violence within the Victoria Police Service at Ballarat was due to be heard at the County Court in Melbourne.
At the outset of the hearing Mr Grace QC requested the inquiry be adjourned so that an urgent application be made to the Supreme Court. Mr Grace represented one of the two individuals compelled to appear before IBAC. The urgent application was made before Justice Riordan and sought to close the IBAC hearing to the public and to suppress the names of the two individuals that had been compelled to give evidence before IBAC.
Mr Woodward SC, counsel for IBAC, made it clear at the outset of the application that IBAC would not oppose the application provided that the order to be made was no more than a suppression order relating to the names of the two individuals, and provided it was only an interim order.
Mr Grace argued that IBAC proceedings should be prima facie closed to the public due to the operation of section 117 of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic). Section 117 provides that examinations are generally to be held in private unless there are exceptional circumstances, it is in the public interest that the hearing be public and that an examination held in public would not cause unreasonable damage to a person’s reputation, safety, or well-being. Mr Grace advanced that the potential to lay future charges, that carry a risk of a term of imprisonment, was insufficient to establish the matter as being in the public interest and exceptional in nature.
Justice Riordan asked whether suppressing the individuals’ names would be sufficient protection. Mr Grace stated that there were other features of the case that would justify the closing of the IBAC enquiry to the public.
Mr Grace further argued that IBAC Act was not intended to interfere with the process of the criminal justice system. Mr Grace further argued that giving evidence before IBAC, where the individual giving evidence may be subject to future criminal charges, would undoubtedly influence a future criminal trial. In support Mr Grace cited three cases:
X7 v Australian Crime Commission  HCA 29 (26 June 2013)
Lee v New South Wales Crime Commission  HCA 39 (9 October 2013)
Lee v The Queen  HCA 20 (21 May 2014)
Mr Grace argued that the above cases established that the entire criminal process, from investigation to trial, is adversarial in nature, and that an accused individual cannot be compelled to give evidence for the prosecution and has a right to silence. Mr Grace further argued that the above cases established that evidence given to a commission influences future criminal processes especially where the giving of evidence to the commission can be compelled. Lastly Mr Grace highlighted a risk that evidence given at a commission may find its way into the hands of the prosecution in a future criminal trial, thereby negatively influencing the likelihood that the accused would receive a fair trial.
Mr Grace stated that a very real risk existed to the reputation of the two individuals compelled to attend the IBAC inquiry should information they provide be made public and be reported with their names attached. This, Mr Grace argued, justified the closing of the inquiry to the public and the suppression of the individuals’ names.
Justice Riordan indicated the he was unwilling at the outset to close the IBAC hearing to the public, and that he would not do more than order the suppression of the individuals’ names at this stage. Justice Riordan closed the interim application by making an interim order supressing the names of the two individuals compelled to attend before IBAC.
The matter has been adjourned to 21 May 2015.
Stay tuned for further updates.
21 April 2015
IBAC hearing delayed again (7 News)
Anti-Corruption body probes Ballarat police (Newcastle Herald)