The Queen v Ober [2008] NTSCFC 35

PARTIES:	THE QUEEN

	v

	OBER, Thomas Benjamin

TITLE OF COURT:	FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	20804134

DELIVERED:	11 September 2008

HEARING DATES:	11 September 2008

JUDGMENT OF:	MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ

CATCHWORDS:

ADMINISTRATIVE LAW 
Reference of question of law - operation of maxim delegatus non potest delegare - valid exercise of regulation making power.

CRIMINAL LAW – PRACTICE AND PROCEDURE
Vulnerable witness evidence – authorised person. 

Care and Protection of Children Act 2007 (NT); Child Welfare Act 2007 (NT); Community Welfare Act 1983 (NT); Criminal Code Act 1983 (NT), s125, s132 (2), s188 (1) (2) (b) (c) & (k); Evidence Act 1939 (NT), Pt IIA, s 21A, s 21B, s 21C, s 21D & s 65; Evidence Regulations 1991 (NT), reg 4; Evidence of Children Amendment Act 2007 (NT); Evidence Amendment Act (No 2) 1994 (NT); Evidence Amendment Act (Authorised Persons) 2007 (NT), reg 4; Evidence Reform (Children and sexual Offences) Act 2004 (NT); Supreme Court Act 1979 (NT), s 21

REPRESENTATION:

Counsel:
	Plaintiff:	M Grant QC and S Brownhill
	Defendant:	R Wild QC and S Barlow

Solicitors:
	Plaintiff:	Office of the Director of Public Prosecutions
	Defendant:	Northern Australian Aboriginal Justice Agency

Judgment category classification:	A
Judgment ID Number:	Mar0807
Number of pages:	10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA AT DARWIN

The Queen v Ober [2008] NTSC 35
No. 20804134 

IN THE MATTER of a reference of part of proceeding No 20804134 to the Full Court pursuant to s 21 of the Supreme Court Act

BETWEEN:

	THE QUEEN
	Plaintiff

	AND:

	THOMAS BENJAMIN OBER
	Defendant

CORAM:	MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ

EX TEMPORE REASONS FOR JUDGMENT

(Delivered 11 September 2008)

Martin CJ:
Introduction
[1]	Pursuant to s 21 of the Supreme Court Act, a Judge has referred a question for determination by this Court.  The agreed facts and question are as follows:
“A.	Agreed Statement of Facts
1.	Thomas Benjamin Ober (‘the accused’) is charged with the following offences alleged to have occurred between 26 December 2007 and 29 January 2008:
(a)	One count of possess child abuse material contrary to section 125B(1) of the Criminal Code; and
(b)	Two counts of indecent dealing with a child under the age of 16 years (‘the alleged victim’) contrary to section 132(2)(a) of the Criminal Code.
(c)	One count of indecent assault contrary to section 188(1)(2)(b)(c) & (k) of the Criminal Code.
2.	The alleged victim was born on 16 December 1994.
3.	The alleged victim is a ‘vulnerable witness’ within the meaning of Part 11A of the Evidence Act.
4.	On 5 February 2008, the alleged victim was interviewed by Detective Senior Constable Karen Sanderson and Constable David Hamlyn (‘the police officers’).
5.	Except for the question as to whether the police officers are ‘authorised persons’ within subs 21A(1) of the Evidence Act, this interview is a ‘recorded statement’ within the meaning of Part 11A of the Evidence Act.
6.	It is the intention of the Crown to lead this recorded statement as part of the alleged victim’s evidence-in-chief in the prosecution of the accused.
7.	In purported exercise of the power conferred by reg 4 of the Evidence Regulations:
(a)	the Commissioner of Police has signed an instrument approving all police officers of or above the rank of constable; and
(b)	the Chief Executive Officer of the Department of Housing and Community Services (as the Agency administering the Community Welfare Act) has signed an instrument approving:
(i)	all employees appointed as ‘authorised persons’ under the Child Welfare Act; or
(ii)	if that Act is repealed, all employees appointed as ‘authorised officers’ under the Care and Protection of Children Act,
As ‘authorised persons’ for the purposes of Part 11A of the Evidence Act.
8.	The accused asserts that the alleged victim’s evidence-in-chief may not be adduced in part by way of the recorded statement on the basis that reg 4 of the Evidence Regulations is invalid and the police officers are not ‘authorised persons’ for the purposes of Part 11A of the Evidence Act.
B.	Question of Law
1.	Is Reg 4 of the Evidence Regulations a valid exercise of the regulation making power under ss 21(1) and 65 of the Evidence Act?”
[2]	In issue is the operation of provisions in the Evidence Act (“the Act”) governing procedures to be adopted when a “vulnerable witness” gives evidence in proceedings involving a “sexual offence” or a “serious violence offence” and the validity of a regulation made by the Administrator for the purposes of those provisions.  In order to understand the context in which the relevant provisions and regulation operate, it is appropriate to consider briefly the history of the statutory scheme.
Statutory Scheme
[3]	During the last twenty years all Australian jurisdictions have made special provision for the giving of evidence by alleged victims (“complainants”) in trials for sexual offences.  Speaking generally, statutory recognition has been given to the particular difficulties confronting complainants when giving evidence about sexual matters.  
[4]	The Northern Territory Parliament first enacted protective provisions for vulnerable witnesses in 1984 through the Evidence Amendment Act (No 2) 1994.  In 2004 significant additional protective measures were introduced in connection with the evidence of children under the age of 18 years and witnesses suffering from an intellectual disability by the Evidence Reform (Children and Sexual Offences) Act 2004.
[5]	In 2007 the current scheme for the giving of evidence by vulnerable witnesses was enacted by the Evidence of Children Amendment Act 2007.  This current scheme applies to “vulnerable witnesses” who are witnesses in the following categories: 
•	under the age of 18 years
•	suffering from an intellectual disability
•	alleged victims of a sexual offence
•	under a special disability because of the circumstances of the case or of the witness.  
[6]	The scheme applies when vulnerable witnesses give evidence in cases concerned with sexual offences or “serious violence” offences.  For present purposes, the essence of the scheme found in ss 21A – 21D of the Act is as follows:
•	A court may admit a “recorded statement” as the evidence-in-chief or part of the evidence-in-chief of the witness.
•	A “recorded statement” is an interview, recorded by audio visual means, in which an “authorised person” elicits from the witness “statements of fact which, if true, would be of relevance to legal proceedings”.
•	An “authorised person” who may conduct the interview, to be admitted as a recorded statement of the evidence-in-chief, is defined in s 21A(1) in the following terms:
“‘authorised person’ means:
(a)	a legal practitioner; or
(b)	a person of a class declared by regulation to be a class of authorised persons for the purposes of this definition;”
•	A court is empowered to hold a special sitting, without a jury, for the purposes of taking the evidence of the witness, at which sitting the evidence-in-chief or part of the evidence-in-chief may be given by the recorded statement.  The witness may also give oral evidence in examination and must be available for cross-examination.  Such oral evidence may be given from a place remote from the court and transmitted to the courtroom by closed circuit television or from within the court with the witness shielded from the accused by a screen.
•	The proceedings at the special sitting are recorded by audio-visual means.
•	At the trial before the jury, the evidence of the witness in the “recorded statement” is played to the jury and is followed by the playing of the audio visual recording of the oral evidence given at the special sitting.  
Authorised Person
[7]	In order to achieve the underlying purpose of enabling a recorded interview with a vulnerable witness to be admitted as the evidence-in-chief of the witness, the interview with the witness must be conducted by an “authorised person”.  Such a person may be a legal practitioner or “a person of a class declared by regulation to be a class of authorised persons” for the purposes of the definition of “authorised person: s 21A(1)”.  
[8]	The power to make regulations for the purposes of the Act is conferred upon the Administrator by s 65 of the Act:
“The Administrator may make regulations, not inconsistent with this Act, prescribing matters – 
(a)	required or permitted by this Act to be prescribed; or 
(b)	necessary or convenient to be prescribed for carrying out or giving effect to this Act”
[9]	On 12 October 2007 the Administrator declared classes of authorised persons by reg 4 of the Evidence Amendment (Authorised Persons) Regulations 2007 in the following terms:
“4	Declared class of authorised persons 
(1)	For the purposes of the definition of authorised person in section 21A(1) of the Act, the following are declared to be classes of authorised persons: 
(a)	all police officers approved by the Commissioner of Police as suitable to be an authorised person for the purposes of Part IIA of the Act; 
(b)	all employees of the relevant Agency approved by the Chief Executive Officer of that Agency as suitable to be an authorised person for the purposes of Part IIA of the Act.
(2)	In this Regulation: 
relevant Agency means the Agency administering: 
(a)	the Community Welfare Act; or 
(b)	if that Act is repealed – the Care and Protection of Children Act.
[10]	The question for determination by this Court is whether reg 4 is a valid exercise of the regulation making power.  In particular, this Court has been asked to consider whether the regulation is invalid because it purports to delegate a discretionary power conferred on the Administrator by the Act in the absence of statutory authority to make such a delegation.  The principle in issue is identified in the maxim delegatus non potest delegare (a delegate may not delegate the power).
Conclusion
[11]	In reg 4, the Administrator did not declare all police officers or all employees of a particular agency to be a class of authorised persons for the purposes of the definition of “authorised person”.  Rather, the regulation declared that only such police officers approved by the Commissioner of Police to be suitable to be an authorised person, or employees of a relevant agency approved by the Chief Executive Officer of that agency as suitable, are “classes of authorised persons” for these purposes.  In this process, therefore, a discretion was conferred upon the Commissioner of Police and Chief Executive Officer of a relevant agency to identify persons suitable to be an authorised person and, therefore, to qualify as a class of authorised person.  
[12]	The discretionary power conferred upon the Administrator was a power to declare a class of persons to be a class of authorised persons for the purposes of the Act.  Regulation 4 makes such a declaration.  The Administrator did not purport to delegate to another person the power to make a declaration as to what class of persons was a class of authorised persons for the purposes of the Act.  The Administrator exercised the regulation making power conferred by the Act and declared a particular category of persons to be classes of authorised persons.  Notwithstanding that the individual persons who will comprise the class are not named in the regulation and cannot be identified without the exercise of an administrative discretion by the Commissioner of Police or Chief Executive Officer of a relevant agency, in my view the Administrator did not delegate the power to make the decision as to what class of persons will be a class of “authorised persons”.  
[13]	The underlying purpose of the statutory scheme is to protect vulnerable witnesses by enabling the evidence-in-chief to be obtained in circumstances 
[14]	less formal than court proceedings, provided that the recorded statement is taken by persons considered to be appropriate for this purpose.  It is not surprising that the legislature would recognise that it is impractical to expect the Administrator to identify particular individuals suitable for such purpose.  Sensibly, the administrative task of identifying the individuals appropriately qualified to comprise the class of authorised person is left to those who are in a better position to make that identification.  
[15]	In my opinion the answer to the question of law referred to this Court is “yes”.
[16]	An additional issue arises on the agreed facts as to whether the Commissioner of Police has validly exercised his power. Determination of this question would involve evidence touching a number of issues.  As such evidence is not before this Court and the validity of the exercise of the power by the Commissioner was not the subject of a referral to this Court, in my view it is inappropriate to determine this issue.  
Riley J
[17]	I agree with the Chief Justice that the answer to the question of law referred to the Court should be yes, and I do so for the reasons he has expressed.  I also agree that we should not determine the second issue that has been identified.
Southwood J.
[18]	I agree with the reasons of the decision of his Honour the Chief Justice.  I also agree with the determination that the question of the exercise of the validity of the power by the Commissioner of Police is not appropriate to be dealt with in this reference.
-------------------------------------------