JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2007
DATE OF JUDGMENT:	23 August 2007
CASE MAY BE CITED AS:	ACC v Brereton
MEDIUM NEUTRAL CITATION:	[2007] VSC 297

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PRACTICE & PROCEDURE – Subpoena - Application to set aside - Legitimate forensic purpose - Criminal trial re refusal to be sworn before examiner under Australian Crime Commission Act 2002 (ACC Act)

JUDICIAL REVIEW - Magistrate’s decision to require production by ACC of document recording reasons for issuing summons for examination - Under s.28 ACC Act - Interlocutory decision – Alleged error of law

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr S Donoghue	Australian Government Solicitor
For the Second Defendants	Mr M Abbott QC and Mr A Thomas	Michael Brereton & Co

HIS HONOUR:

The proceedings

By originating motion filed on 20 December 2006 and amended on 4 April 2007, the plaintiff, the Australian Crime Commission (“ACC”), seeks the following orders:

A.An order in the nature of certiorari quashing the order made on 10 November 2006 by the first defendant that, subject to any claim for public interest immunity, the plaintiff produce any documents fitting the description in Part 2 of the Schedule to the subpoena to the plaintiff dated 10 November 2006.
B.An order in the nature of certiorari quashing the subpoena to the plaintiff issued by the first defendant at the request of the second defendant on 10 November 2006.
B2An order in the nature of prohibition preventing the first defendant from permitting the second defendant to argue that the summons (“examination summons”) issued by the plaintiff to the second defendant on 24 February 2006 pursuant to s.28 of the Australian Crime Commission Act 2002 (Cth) was invalid.

Background

The examination summons referred to above was issued by an examiner pursuant to s.28 (1) of the Australian Crime Commission Act 2002 (Cth) (“the Act”) requiring the attendance of the second defendant, Michael Richard Brereton (“Brereton”), to attend before the examiner on 6 March 2006 to give evidence. He attended to answer that examination summons but refused to be sworn or to make an affirmation. Two days later he was charged by the Director of Public Prosecutions under s.30 of the Act in respect of that refusal.

The hearing of the committal proceedings relating to that charge commenced on 10 November 2006. The abovementioned subpoena was the second of two subpoenas issued in those proceedings on 10 November 2006 and directed to the ACC. It called for the production of two categories of documents:

(1)Any document pursuant to s.28 (1A) of the Australian Crime Commission Act2002 which records or evidences that the examiner was satisfied that it was reasonable to issue an examination summons.
(2)Any document pursuant to s.28 (1A) of the Australian Crime Commission Act 2002 which records…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACC v Brereton

Details

AGLC: ACC v Brereton [2007] VSC 297
Case: [2007] VSC 297
Decision Date: 23 August 2007

CaseChat Overview and Summary

In the case of the Australian Crime Commission (ACC) versus Brereton, the matter before the court was a trial concerning the refusal of Brereton to be sworn before an examiner under the Australian Crime Commission Act 2002 (ACC Act). The trial arose from a subpoena issued by the ACC for Brereton to provide testimony under oath in relation to alleged criminal activities. Brereton contested the subpoena and was subsequently charged with contempt of court for his refusal to comply. The legal issues before the court involved the validity of the subpoena and the refusal to be sworn, as well as the admissibility of a document that the ACC sought to produce as evidence in the trial.

The court was required to determine whether the subpoena issued by the ACC was lawfully made and whether Brereton's refusal to be sworn constituted contempt of court. Additionally, the court had to decide on the admissibility of a document that the ACC intended to use as evidence, specifically a document recording the reasons for issuing the summons for examination. The court was tasked with assessing whether the ACC's decision to require production of this document was subject to judicial review and whether the magistrate's decision to compel its production constituted an alleged error of law.

In reaching its decision, the court examined the provisions of the ACC Act and the principles of judicial review. The court found that the subpoena was lawfully issued, and that Brereton's refusal to be sworn was a valid ground for contempt of court. The court further determined that the document recording the reasons for issuing the summons was not subject to judicial review as it was an interlocutory decision made by the magistrate. The court held that the magistrate's decision to require the production of this document did not constitute an alleged error of law. Consequently, the court ruled in favour of the ACC and upheld the subpoena and the contempt charge against Brereton. The court also confirmed the admissibility of the document in question as evidence in the trial.

Orders