Office of the Chief Examiner

Frequently asked questions

FAQs about the Office of Chief Examiner.

References to legislation in these FAQs are to the Major Crime (Investigative Powers) Act 2004 (Vic), unless otherwise specified.

  • An order made by the Supreme Court authorising the Chief Examiner to use coercive powers to investigate an organised crime offence. An order may only be made on the application of a police officer, with the approval of the Chief Commissioner of Police (or their delegate).

    See definition in section 3

  • An indictable offence against the law of Victoria, that is punishable by level 5 imprisonment (10 years maximum) or more and that satisfies each of the following:

    • involves 2 or more offenders
    • involves substantial planning and organisation
    • forms part of systemic and continuing criminal activity
    • has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child

    An organised crime offence can also include a serious offence where 2 or more of the alleged offenders are a ‘declared individual’ or a ‘declared organisation member’.

    (section 3AA)

  • The Supreme Court of Victoria.

    (sections 5(1) and 8)

  • Up to 12 months.

    (section 9(2)(f))

  • As many times as the Court thinks fit, provided each extension is for a period of no more than 12 months.

    (section 10(4)(a))

  • No. It is an offence to provide a witness or any other person with a copy of the coercive powers order.

    However, a witness summons or custody order must state the general nature of the matters about which the witness is to be questioned. It need not do so if the Chief Examiner believes such a disclosure would prejudice the investigation of the organised crime offence to which the witness summons or custody order relates.

    (sections 7, 15(10) and 18(4))

  • A ‘police officer’ is:

    • the Chief Commissioner of Police
    • a Deputy Commissioner
    • an Assistant Commissioner
    • any person appointed as a police officer by the Chief Commissioner

    A ‘member of Victoria Police personnel’ includes the police officers listed above, as well as protective services officers, police recruits, police reservists and other employees of Victoria Police.

    (section 3; and sections 3 and 7 of the Victoria Police Act 2013 (Vic))

  • The Supreme Court of Victoria or the Chief Examiner.

    (sections 14 and 15)

  • The Supreme Court of Victoria or the Chief Examiner.

    (section 18)

  • A witness summons is issued to a witness who is not in custody. A custody order is made in relation to a witness who is held in custody and is directed to the General Manager of the facility where the witness is held.

    (sections 14, 15 and 18)

  • A Notice issued under section 20 of the Act.  A Notice of Confidentiality states that the witness summons or custody order is a confidential document. It also states that it is an offence to disclose to anyone else:

    • the existence of the document
    • the subject matter of the organised crime offence
    • any official matter connected with the witness summons

    unless the person who was given the Notice has a reasonable excuse. A reasonable excuse includes obtaining legal advice.

  • A witness summons must be served personally on a witness. The Act does not specify how long before an examination a witness summons must be served.

    However, the Chief Examiner considers that reasonable notice should normally be given. A summons should be served at least 7 days before the witness is required to attend.

    (section 17)

  • A witness under the age of 16 cannot be examined and must be immediately released from compliance with a witness summons, once they have given written notice and provided proof of their age.

    (section 32)

  • The Chief Examiner or an Examiner (where the Chief Examiner has delegated their powers to that Examiner in relation to that examination).

    (section 29 and 65(4))

  • The Chief Examiner can conduct proceedings as they see fit. Generally, only the Chief Examiner or an Examiner will question a witness. Where authorised by the Chief Examiner, counsel assisting may do so.

    At the end of an examination, the witness’s legal representative is permitted to question the witness in relation to issues that seek to amplify, clarify, explain away or qualify matters that arose during the examination. 

    (section 36)

  • The rules of evidence do not apply to examinations conducted under the Act. However, questioning must be relevant to the investigation of an ‘organised crime offence’ specified in the coercive powers order under which the witness was required to attend.

    (section 30)

  • A witness cannot be required to answer:

    • questions that would disclose communications or documents that are subject to legal professional privilege
    • questions that are not relevant to the investigation of the subject matter of the organised crime offence

    (sections 36 and 40)

  • The Act removes the privilege against self-incrimination. A witness must therefore answer each question and produce each document or other thing that the Chief Examiner requires them to answer or produce. This is so even if the answer or document may tend to incriminate the witness.

  • Examinations must be held in private and only persons authorised by the Chief Examiner may be present.

    (section 35(1))

  • A witness is entitled to be legally represented when appearing as a witness at an examination, although in certain circumstances a particular legal practitioner may not be authorised to be present. This may include where there is a conflict of interest.

  • If a witness does not have adequate knowledge of the English language to enable them to understand the questioning, the Chief Examiner must arrange for the presence of a competent interpreter.

    Arrangements for an interpreter are made by the Office of Chief Examiner, which meets all costs associated with the use of an interpreter.

    If you believe you may need an interpreter, you should contact the Office of Chief Examiner as soon as possible.

    (section 34(2))

  • If the Chief Examiner believes a witness has a mental impairment, they must direct that an independent person is to be present during the examination, if the witness so chooses.

    ‘Mental impairment’ includes impairment because of mental illness, intellectual disability, dementia or brain injury.

    (sections 3 and 34(3))

  • A person independent of the Office of Chief Examiner, who is not a member of Victoria Police personnel, who is available to attend to assist a witness. Such a person is not a legal representative.

  • A police officer may apply to the County Court or Supreme Court for a warrant to arrest a witness who fails to attend as required by a witness summons.

    If the witness is arrested, they will be brought before the Court. The Court will be asked to make orders to ensure that the witness appears before the Chief Examiner. In making such orders, the Court may also:

    • release the person from custody unconditionally or on bail, or
    • order that the person continue to be detained for that purpose

    (section 46)

  • The witness may be charged by police with the offence of refusing to take an oath or affirmation.  This is an indictable offence with a maximum penalty of 5 years imprisonment.

    Alternatively, the Chief Examiner could immediately charge the witness with contempt and issue a warrant for their arrest. If this happens, the witness will generally be taken from the examination to the Supreme Court to be dealt with for contempt.

    (sections 36 and 49)

  • The witness could be charged by police with the offence of refuse or fail to answer. This is an indictable offence with a maximum penalty of 5 years imprisonment. 

    Alternatively, the Chief Examiner could immediately charge the witness with contempt and issue a warrant for their arrest. If this happens, the witness will generally be taken from the examination to the Supreme Court to be dealt with for contempt.

    (sections 36 and 49)

  • The witness could be charged by police with the offence of refuse or fail to produce a document or thing. This is an indictable offence with a maximum penalty of 5 years imprisonment. 

    Alternatively, the Chief Examiner could immediately charge the witness with contempt and issue a warrant for their arrest. If this happens, the witness will generally be taken from the examination to the Supreme Court to be dealt with for contempt.

    (sections 37 and 49)

  • The witness could be charged by police with the offence of giving evidence that is false or misleading in a material particular. This is an indictable offence with a maximum penalty of 5 years imprisonment. 

    (section 38)

  • The Chief Examiner also has the power to charge a witness with contempt, in certain circumstances. A witness is guilty of a contempt of the Chief Examiner if they:

    • fail without reasonable excuse to produce any document or other thing they are required by the witness summons to produce
    • refuse to be sworn or to make an affirmation
    • without reasonable excuse, refuse or fail to answer any question relevant to the subject-matter of the examination
    • engages in any other conduct that would, if the Chief Examiner were the Supreme Court, constitute a contempt of that Court

    (section 49)

  • A non-publication direction is given at an examination by the Chief Examiner under section 43 of the Act. It restricts the publication or communication of:

    • any evidence given before the Chief Examiner
    • the contents of any document or thing produced to the Chief Examiner
    • any information that might enable a person who has given evidence to be identified
    • that fact that any person has given or may be about to give evidence at an examination
  • The Chief Examiner must provide a copy of the video-recording of an examination, on request, to the police officer who applied for the coercive powers order to which the examination relates.

    Generally, neither the witness or their legal representative are given a copy of the recording or transcript of the examination.

    A witness or their legal representative may apply to view the recording and/or transcript of the examination at the premises of the Office of Chief Examiner.

    (section 45(4))

  • A witness’s evidence or any documents or things produced by a witness may be shared with members of Victoria Police personnel – subject to any non-publication directions that apply.  This may be done for the purposes of preventing, investigating or prosecuting criminal offences and related matters. 

    If Victoria Police believe a witness’s evidence is relevant to charges a person is facing, they can apply to a court for the evidence (or part of it) to be made available to the Director of Public Prosecutions (DPP) and the accused person or their legal representative. 

    Before deciding whether that should occur, the court must give the witness an opportunity to make submissions on the proposed release of their evidence, including in support of any objection taken.

    If the witness’s evidence is made available to the DPP and the accused or their legal representative, a court may then be asked to decide whether the evidence is admissible – that is, whether it can be used in the prosecution proceedings.

    (section 43A)

    Victoria Police may believe a witness’s evidence could assist in the conviction of a person who has not yet been charged. If so, the Chief Commissioner of Police may apply to the Supreme Court or County Court for an order that the witness’s evidence be made available to the DPP for the purpose of prosecuting a person.

    Before deciding whether to make the evidence available to the DPP, the court must give the witness an opportunity to make submissions, which may include objecting to the proposed provision of the evidence to the DPP.  

    If the person is eventually charged, either party may apply to use the evidence in the prosecution proceedings.

    (section 43B)

  • Anything said by a witness at an examination is not admissible as evidence against any person in any proceedings unless the examination was video-recorded in its entirety. The video-recording must also be available to be tendered in evidence.

    In certain circumstances, a court may admit evidence of anything said by a witness during an examination even where the examination was not video-recorded in its entirety.

    (sections 45(2) and 45(3))

Reviewed 23 March 2021