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Court of Appeal judgment upholding Danny Nikolic exclusion order should matter to all of us

MELBOURNE NOVEMBER 6 – Oaks day at Flemington

In the last week, Rolling Stone magazine has said about Donald Trump that he has become the mother of all pop-culture villains, a globally despised cross of Dominique Strauss-Kahn, Charlie Sheen and Satan.

No one wants to be seen as some kind of cartoon villain.  Is it any wonder then, that Danny Nikolic has sought to explain his own side of the story in the Victorian Civil and Administrative Tribunal (VCAT) over the last few weeks? The media has been replete with stories about him in recent years, and the language of the media has become pretty ‘loose’. ‘Allegedly crooked jockey’, were the words introducing a recent news piece about Mr Nikolic.  That language seemed closer to a True Crime story than a news report. The term ‘allegedly’ was used by the author for legal reasons but seemed an unnatural fit with the otherwise ‘Dick Francis’ style terminology.

It follows that, win, lose or draw, even if his jockey’s licence is not reinstated by Racing Victoria like he wants, Mr Nikolic will have had a proper opportunity to offer VCAT his own explanation for a range of allegations that have been levelled against him.  Two sides of the story increase the prospects of a well-rounded picture. One side of the story can lead to distortion.

However, as a recent Victorian Court of Appeal case called Chief Commissioner of Police v Nikolic [2016] VSCA 248 shows, Mr Nikolic is unable to respond to every allegation made against him.  This is because the Commissioner of Police has applied powers under the Racing Act 1968 (Vic.) to exclude him from race courses during race meetings, without fully telling him why.

If in recent days you learned that Mr Nikolic lost this case,  you might have thought, ‘Oh, that’s Danny Nikolic and this has nothing to do with me’.  How wrong you are.

The case concerned the content of natural justice. In a functioning democracy, it matters to all of us.  We need to test whether Parliament has achieved the correct balance between the rights of the individual, and the rights of those empowered to make decisions about our lives such as the police.

In Danny Nikolic’s case, the Victorian Court of Appeal was confronted with a fundamental dilemma.

Let’s have a look at it.

Imagine that you receive a letter one day telling you not to attend work.  In fact, the letter goes a step further.  It tells you that you cannot attend a range of specified places in your industry. You are obviously angry and outraged and would like to know more.  You want to be able to defend the allegations.  You cannot otherwise earn a living.  Yet you are not given the full picture so your ability to defend yourself is fundamentally prejudiced.

Now imagine that you are the Chief Commissioner of Police.  You have decided to exercise a statutory power to exclude a person from attending specified places (corresponding to their workplace) for integrity reasons. You cannot fully explain why, because to do so could, in your view, prejudice police sources and/or ongoing police investigations and/or police investigative methods.  However, you have decided that the stakes are sufficiently important to make the exclusion call.

These are opposing concerns and they cannot be reconciled.

It means you could go from this:

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And this (with Sarah Jessica Parker):

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To this:

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What would you do if you received such a letter?  Are you prepared to trust people to make decisions stopping you from going to work without filling you in on the facts? Will you just walk away without a fight?

In Mr Nikolic’s case, the answer was ‘not on your life’, and the reason for that was that it was plain that the process had set him up to fail.  He therefore sought judicial review of the Commissioner’s decision.

The facts specific to Mr Nikolic

The facts below are drawn from the Court of Appeal judgment.

The Commissioner’s delegate in a letter dated 19 October 2015 headed ‘Notice of Intention to Make a Racing Exclusion Order’ informed Mr Nikolic that the purpose of the Notice was to give him an opportunity to offer submissions in response to a proposed exclusion order.

To repeat, the purpose of the Notice was to give him an opportunity to offer submissions in response to a proposed exclusion order.

Mr Nikolic was told:

I base my preliminary view on the following matters:

  1. The nature and extent of your proven criminal history in Victoria and New South Wales; particularly, in relation to your history of family violence and other violent criminal behaviour. My preliminary view is that this behaviour, which occurred both in and out of the context of racing, demonstrates a propensity for engaging in acts of violence and intimidation. Persons who have been affected by your behaviour include a jockey, other persons involved in the racing industry with whom you have contact, as well as members of the public not connected to the racing industry;
  2. The nature and extent of your disciplinary history in your former profession as a jockey, including threats against a racing steward;
  3. That on 11 June 2015, you entered a restricted area at Flemington Racecourse, namely the mounting yard and jockey’s room;
  4. That on 4 October 2012, the then Chief Commissioner Ken Lay made a Casino Exclusion order in relation to you; and
  5. I have also considered other credible, protected information which, for reasons of public interest, I cannot disclose to you.”

Consider the above items closely, and ask yourself, to what extent could Mr Nikolic respond to these matters either properly or at all?  Here is my own assessment:

  • Item 1: Cannot respond because does not know the identity of the people in the Commissioner’s mind such as the ‘jockey’, ‘other persons involved in the racing with whom I have contact’ (meaning, everyone), and ‘members of the public not connected the racing industry’ (meaning, anyone)
  • Item 2: Capable of response, but lacks particulars about matters other than the racing steward
  • Item 3: Capable of response
  • Item 4: Capable of response
  • Item 5: Cannot respond at all

Mr Nikolic was provided with further information in response to a request but, of course, not all of it.

Not surprisingly, on 12 November 2015 Mr Nikolic was then subject to an exclusion order.

In notifying him of this, the Commissioner’s delegate stated:

In considering the requirements of the public interest in this case, I had regard to matters that I considered to be relevant to protecting and preserving the integrity of the Victorian racing industry and the safety of racing industry participants and the general public who attend race meetings at listed racecourses.

The protected information that I considered also demonstrated matters relevant to your lack of integrity, criminal associations and poor character. All of which when considered cumulatively caused me to form views in respect of the risk posed by you.” (emphasis added)

In other words, it is bad enough to be told you lack integrity, have criminal associations and are of poor character, but even worse when you are not told why someone has reached this view.

Protected information’ under section 35E of the Racing Act refers to information that the Commissioner is not prepared to disclose because, amongst other things, it is intelligence information which, if disclosed, would carry a level of presumed risk either to the investigation, to police methods, or to the safety of an individual whether that be a police officer or source.

What were the issues considered by the Court of Appeal?

The Court of Appeal is not interested in water cooler gossip about the individuals appearing before it.  The Court’s approach was evidence based, and closely concerned with a statutory construction of the Racing Act.

The Court wanted to understand what Parliament intended, when it enacted very serious provisions by which:

  • the Chief Commissioner of Police, if he or she considers it necessary in the public interest, by written order given to a person, can prohibit a person from entering, or remaining at specified race-courses for the duration of a race meeting at the race course;
  • the exclusion order remains in force until the Chief Commissioner of Police chooses to revoke it;
  • a person subject to an exclusion order must not enter, or remain at, the race course at any time during the duration of a race meeting; and
  • there is an obligation on stewards to notify the police if they believe a person subject to an exclusion order is at a specified race course at any time during a race meeting.

The key provisions of the Racing Act relating to exclusion orders are ss. 33, 34, 35B, 35C and 35E.

The debate concerned the content of natural justice.  How much natural justice should a person get?

The Court of Appeal, constituted by Maxwell P, Osborn and Kaye JJA, focussed on this passage of Brennan J in a High Court case called Kioa v West.  That passage begins, “It must therefore be accepted…that ‘the contents of natural justice range from a full-blown trial into nothingness”.

Where did Mr Nikolic’s circumstances sit on this sliding scale?

In the court below, the exclusion order was quashed on the basis that Mr Nikolic was entitled to see the ‘gist’ or ‘substance’ of the complaint against him but, because this had not happened, the Commissioner’s decision could not be regarded as valid.

The Court of Appeal disagreed with this assessment.  In its view, there were some cases where disclosing the ‘gist’ could prejudice the protected information.  The Court of Appeal decided that certain provisions of the Racing Act governing exclusion orders were “extraordinary”.  It considered that, in the context of these provisions, natural justice was intended by Parliament to be at the “nothingness” end of the scale.

Section 35E of the Racing Act was a key provision convincing the Court of Appeal that natural justice to an affected individual, for the purposes of an exclusion order, might well be nil.  Under that section, if an application is made to a court for review of a decision by the Chief Commissioner to make an exclusion order under section 33 of the Racing Act, and the Chief Commission objects to the production of protected information, then the Chief Commissioner can ask the court for a method of hearing that keeps that protected information confidential.  The options include (a) a closed court, (b) a hearing in which neither the affected person nor his/her legal representative can be in court whilst the material is considered, and/or (c)  a hearing in which the relevant person and his/her legal representative may not even be given notice that the hearing is on foot. The Court of Appeal commented particularly on the effect of options (b) and (c).

The Court of Appeal stated, “Put shortly, the legislature has set such store by the need to protect that public interest that it has authorised the Court to depart from fundamental conceptions of justice where necessary to avoid disclosure of sensitive police intelligence information”.

The result was that the Court of Appeal decided in favour of the Commissioner of Police, and the exclusion order was restored.

This means that Mr Nikolic cannot attend specified race courses in Victoria during race meetings until the Chief Commissioner decides otherwise. He does not know all the grounds as to why, and so he cannot defend himself.

The Court of Appeal decision only concerns Mr Nikolic’s exclusion from race courses pursuant to section 33 of the Racing Act.  The VCAT proceeding concerns whether or not he can become a licensed jockey in Victoria as a fit and proper person. Whilst there might be some factual overlap, these are distinct concepts. For example, in theory Mr Nikolic could obtain a licence but work interstate in locations where the exclusion order does not apply. It is also noted that the Court of Appeal has no immediate effect in VCAT.  It is up to the parties to determine how, or whether, to refer to that decision.

In doing so, the Court of Appeal determined that the intention of the legislation was to uphold the integrity of racing to the expense of the rights of the individual.  It held that the disclosure of protected information (even by giving the ‘gist’ of it) could frustrate the purpose for which Parliament conferred the power to make an exclusion order.

Clearly, the Court of Appeal was influenced by these ‘extraordinary’ statutory provisions in the Racing Act.  Was the balance right? That’s for you to decide.

What does this mean for you?

On its face, the police powers to make an exclusion order fit into the ‘guilty until presumed innocent’ category. Or indeed, just the ‘guilty’ category because a defendant cannot prove innocence without particulars of the charge.

That said, as Mr Nikolic’s case reveals, the system does have some checks in place. It is also clear that the Court tried very hard to ensure that, as best as possible, his interests were accommodated even if he could not be personally informed about the protected information.

Hopefully, you will never be subject to an exclusion order.  However, if this happens, these guidelines are for you, drawing on what happened in Mr Nikolic’s case.

First, seek a right of judicial review.  This means that, an independent body, namely the Court, will need to consider the material you are not permitted to see. In other words, someone other than the police will scrutinise the material.

Secondly, make sure you are legally represented by a barrister you trust.

Thirdly, try to ensure that, even if you cannot see the documents, your barrister can.  Agree to have the proceeding take place in a closed court room.  Even if you are not permitted to be present, your barrister can argue your case on your behalf in that environment, having looked at the documents.

In Mr Nikolic’s case, counsel also made undertakings not to appear on his behalf in future (except in any appeal in the current proceeding) to avoid the prospect of mistakenly passing on the protected information to him.

This is the process that was followed in Mr Nikolic’s case, both at first instance and on appeal.

It meant that independent judges were able to look at the material, and form their own opinion of it.  They also had the benefit of the views of Mr Nikolic’s counsel, even if they ultimately decided not to agree with them.

Therefore, even though the decision ultimately went against Mr Nikolic, he did have someone in his corner who had looked at the documents, and there were people other than the police (the court) who also considered them.

The safeguards may not be entirely satisfactory, but at least there are some in place.

2 Responses to “Court of Appeal judgment upholding Danny Nikolic exclusion order should matter to all of us”

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