| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 10488 of 2006
| AUSTRALIAN CRIME COMMISSION | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA (AT MELBOURNE) AND MICHAEL RICHARD BRERETON | Defendants |
---
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 | |
---
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
---
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…
Continue reading ACC v Brereton
Sign in free to access the full text
- AGLC
- ACC v Brereton [2007] VSC 297
- Case
- [2007] VSC 297
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.