Conclusion
The vulnerability of the criminal justice paradigm to executive action and
legislative change leads to a pessimistic conclusion. It is perhaps appropriate
to end by referring to the cases of the two Australians who were held at
Guantanamo Bay, Mamdouh Habib and David Hicks (Sales, 2007 ). Habib
was released without charge, apparently because US authorities did not
welcome the prospect of more public scrutiny of what happened to him in
Egyptian jails during a lengthy stop - off on his rendered passage to Cuba. At
the time of writing, Hicks is the only sometime detainee of Guantanamo Bay
who has been ‘ convicted ’ . In a mere fa ç ade of legality, confessions produced
by years of interrogation led to a plea of guilty to crimes which did not exist,
in a court which was not a court, in a place which the US government had
tried to isolate from international law. This guilty plea meant that neither his
military ‘ commission ’ nor, a fortiori , a real court examined the means by which
the confessions underlying it were obtained. At the time of writing, Hicks has
just been released from the Australian jail where he spent the last few months
of detention, apparently broken, not by torture, but by prolonged detention,
often in isolation. Yet even in this case, the strength of legal principle became
evident in the unlikely fi gure of Hicks ’ s US army lawyer, Major Michael Mori,
who, along with a team of other lawyers (Stafford Smith,
2007 ), fought
for his client skilfully and at very considerable personal cost. Both Habib and
Hicks are now subject to indefi nite security surveillance and administrative
control orders.
From Criminal Justice to Control Process
107
The legal and political issues discussed in this chapter may seem distant from
the professional and technical concerns of investigative interviewing. This
would not have been Tom Williamson ’ s approach. What distinguished Tom ’ s
work was a commitment to investigative interviewing not just as a professional
technique, but as an expression of adherence to human rights, legality, and
justice (Williamson, 2006 ). In working through the implications for interroga-
tion of the changing relationship between criminal justice and control process,
Tom Williamson will continue to provide us with a fi ne example.
Vale Tom.
Acknowledgements
I am grateful to my colleagues Professor Jill Hunter and Associate Professor
Andrew Lynch for their advice and assistance. My account of Thomas ’ s case
draws heavily on Dr Lynch ’ s published research.
References
The Australian
(
2007 ).
Keelty attacked for
‘ court testing
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The Australian , 17
December, p. 3 .
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D. (
1997 ).
Law in policing: Legal regulation and police practices .
Oxford :
Clarendon .
Dixon , D. ( 2008 ). Authorise and regulate: a comparative perspective on the rise and
fall of a regulatory strategy . In E. Cape & R. Young (Eds.), Regulating policing
(pp. 21 – 44 ). Oxford : Hart .
Dixon , D. with Travis , G. ( 2007 ). Interrogating images: Audio - visually recorded police
questioning of suspects . Sydney : Institute of Criminology .
Dyzenhaus , D. & Thwaites , R. ( 2007 ). Legality and emergency – the judiciary in a
time of terror . In A. Lynch , E. Macdonald & G. Williams (Eds.), Law and liberty
in the war on terror (pp. 9 – 27 ). Leichhardt : Federation .
Garland , D. ( 2001 ). The culture of control . Oxford : Oxford University Press .
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subjects: a law enforcement perspective
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Lynch , A. ( 2006 ). Maximising the drama: ‘ Jihad Jack ’ , the Court of Appeal and the
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Mackey , C. with Miller , G. ( 2004 ). The interrogator ’ s war . London : John Murray .
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Handbook of Psychology of Investigative Interviewing
New York Times ( 2008 ). ‘ Veto of Bill on CIA tactics affi rms Bush ’ s legacy ’ . New York
Times , 9 March.
Pearse , J. J. ( 2006 ). The interrogation of terrorist suspects: The banality of torture .
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T. Williamson (Ed.),
Investigative interviewing (pp.
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Sales ,
L. (
2007 ).
Detainee 002: The case of David H
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Stafford Smith , C. ( 2007 ). Eight o ’ clock ferry to the windward side: Seeking justice in
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Williamson , T. ( 2006 ). Investigative interviewing and human rights the war on ter-
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Willan Publishing .
Williamson , T. (Ed.) ( 2006 ). Investigative interviewing . Cullompton : Willan Publishing .
Wilson , R. A. (Ed.) ( 2005 ). Human rights in the ‘ war on terror ’ . Cambridge : Cambridge
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Statutes
Police and Criminal Evidence Act 1984
Chapter Seven
Major Crime (Investigative Powers) Act
2004: The Chief Examiner and
Coercive Powers
Damien B. Maguire
Chief Examiner for the State of Victoria, Australia
Introduction
The topic of this
chapter is the Major Crime (Investigative Powers) Act 2004 ,
the Chief Examiner and Coercive Powers. In the course of the chapter I shall
outline the circumstances in which this legislation came to be implemented,
explain how the legislation operates and share my views as to what part the
legal profession should play in representing witnesses in the ‘ coercive powers ’
examination hearing process.
The h istory of the c reation of the s tatutory
o ffi ce of C hief E xaminer
Appointment
On 25 January 2005 after some 30 years
’ practising as a barrister at the
Victorian Bar in Australia I was appointed as the fi rst Chief Examiner for the
State of Victoria. The position of Chief Examiner is a creature of statute and
is created by the Major Crime (Investigative Powers) Act 2004 .
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Edited by Ray Bull, Tim Valentine and Tom Williamson
© 2009 John Wiley & Sons, Ltd.
110
Handbook of Psychology of Investigative Interviewing
The c ircumstances in w hich the s tatutory
o ffi ce c ame into being
The offi ce of Chief Examiner was created as part of a number of measures
taken by the Victorian Government to deal with what had become known as
the ‘ gangland wars ’ and serious issues as to police corruption.
The g angland w ars
In the period between 1998 and 2004 21 killings were attributed to gangland
wars, which were fought partly on the payback principle but mainly for control
of the lucrative drug trade, particularly the trade in amphetamine, cocaine and
ecstasy.
Some of the killings involved high - profi le criminals. Without detailing the
circumstances of each of these killings, reference to some will inform you as
to why these events raised a great deal of public concern.
On 21 June 2003, Jason Moran was in a van with another man and a group
of children at a football ground where a football clinic was taking place. Many
other parents were present with their children. As Moran sat in the van the
murderer appeared and fi red into the vehicle killing Moran and his companion.
Jason Moran with his father and brother Mark had played a major role in
Melbourne ’ s drug trade. His brother had also been murdered approximately
three years earlier.
Moran made the mistake of thinking he was safe in his vehicle with his
children amongst other parents and children.
On 25 October 2003 another man involved in the drug trade, Michael
Marshal, was shot in front of his wife and fi ve - year - old son outside his home.
On 23 March 2004 Andrew ‘ Benji ’ Veniamin was shot dead in the toilet
at a pizza restaurant by a man called Mick Gatto, who was said to have been
part of a group of men called the Carlton crew. Members of this group had
been allegedly murdered by Veniamin. Gatto was tried on a charge of murder-
ing Veniamin and was acquitted.
On 31 March 2004, the day after Veniamin ’ s funeral, Lewis Moran (Mark
and Jason ’ s father) was shot dead in the late afternoon in a well - known inner
suburban club with other persons present, and with trams, motor vehicles and
pedestrians passing by.
It can be seen from the examples I have just given that even the normal
conventions of the underworld were being fl outed.
The G overnment and the p olice r esponse
In the period particularly after the murder of Jason Moran there were strong
calls from the community for the establishment of a Royal Commission and/
or the creation of a Crime Commission to seek to deal with the horrifi c number
of murders which were taking place and with police corruption regarding drugs
Major Crime (Investigative Powers) Act 2004
111
which was being exposed at or about the same time. There was also the issue
of whether there was a link between the two.
The Victorian Government was consistently opposed to taking either of
these courses. In the meantime Victoria Police were seeking to deal with these
problems by establishing Special Task Forces to deal with the issue of police
corruption and later with the gangland killings.
In the course of these investigations police made use of the coercive powers
of the Australian Crime Commission, a federal body with limited powers to
deal with state offences. Examination hearings were conducted under a drug -
related Reference.
In the context of the use of the Australian Crime Commission ’ s powers,
the Chief Commissioner of Victoria Police asked the Government to give
police the same powers. Although the Government was never going to give
these powers directly to police, the Government did agree that police should
have access to such powers, but with substantial constraints being imposed.
In May and June 2004 the Victorian premier announced a major crime
legislative package, which included a commitment to provide new coercive
questioning powers to enable police to investigate organized crime more
effectively. The Government said that these powers were designed to assist
police in breaking the ‘ code of silence ’ that often thwarted investigations into
organized crime. At or about the same time another statutory offi ce of Director
Police Integrity was created to deal with police corruption.
The organized crime legislation was ultimately implemented in November
2004 and became operative from 1 July 2005. The Act which created the posi-
tion of Chief Examiner and which sets out the procedures whereby coercive
powers are utilized is the Major Crime (Investigative Powers) Act 2004 .
The M ajor C rime ( I nvestigative P owers) A ct 2004:
h ow it o perates
Application by p olice for a c oercive p owers o rder
The Victoria Police are empowered by this legislation to apply to a single judge
of the Supreme Court of Victoria for the issuing of what is known as a coercive
powers order. Obtaining such an order is the start of a process which leads to
police obtaining indirect access to a witness.
An application to the Supreme Court made by a member of Victoria Police
must be sanctioned by the approval of the Chief Commissioner of Police or
his or her delegate. In order for the application to succeed the applicant police
offi cer must convince the Supreme Court Justice that he or she suspects on
reasonable grounds that an organized crime offence has been, is being or is
likely to be committed. The application must relate to an existing investigation.
It cannot be made to support a search for intelligence. It is quite different
from how the Australian Crime Commission operates, which is on the basis
112
Handbook of Psychology of Investigative Interviewing
of what is known as a Reference which is generally not concerned with a par-
ticular investigation.
That term ‘ organised crime offence ’ is defi ned in the legislation as follows:
‘ Organised crime offence ’ means 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 and that –
(a) involves two or more offenders; and
(b) involves substantial planning and organisation; and
(c) forms part of systemic and continuing criminal activity; and
(d) has a purpose of obtaining profi t, gain, power or infl uence.
There are a number of other matters which are required to be satisfi ed
before a coercive powers order will be made, including the public interest;
however, I shall leave these to another day.
If the Supreme Court agrees to make an order it will relate to the particu-
lar organized crime offence and may be allowed to operate for a period
of up to 12 months. Conditions as to the use of the order may also be
imposed.
The i nvolvement of the C hief E xaminer
When a coercive powers order is made, police may then apply to the Supreme
Court or to the Chief Examiner for the issuing of the summons or the making
of a custody order in relation to a person who is in custody. Usually these
applications are made to the Chief Examiner. Without going into the fi ne
detail, the Chief Examiner will issue a summons or make a custody order if
certain legislative criteria are satisfi ed. Normally, such applications will involve
witnesses chosen by police investigators. However, the Chief Examiner does
have independent discretion in this regard.
After service of the summons or the execution of a custody order the exami-
nation hearing will, in due course, take place.
The legislation requires that the Chief Examiner will generally conduct the
examination by personally interrogating the witness. However, if circum-
stances require, the examination may be conducted by the Chief Examiner
using counsel assisting or some other appropriate person, perhaps with some
specialized knowledge, to examine the witness.
Investigating police are involved in the examination by instructing the Chief
Examiner in conference and providing materials which are relevant to the
examination. This assistance will continue during the examination hearing.
The e xamination h earing
The examination hearing is inquisitorial and must be held in private, with the
Chief Examiner having the power to give directions as to who may be present
Major Crime (Investigative Powers) Act 2004
113
during an examination or part of an examination and as to the prohibition on
publication or communication of evidence given during the examination.
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