AUSTRALIAN CRIME COMMISSION -v- MARRAPODI [2012] WASCA 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 103 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:117/2011 | 16 NOVEMBER 2011 | |
| Coram: | MARTIN CJ McLURE P ALLANSON J | 9/05/12 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | AUSTRALIAN CRIME COMMISSION DAVID FRANK MARRAPODI THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS STEPHEN JOHN WALLACE ANDREW REGINALD KEITH FAGAN |
Catchwords: | Appeal Jurisdiction Application to set aside witness summons in criminal proceedings dismissed by District Court judge Whether right of appeal to Court of Appeal Construction of s 79(1) of the District Court of Western Australia Act 1969 (WA) Whether Criminal Appeals Act 2004 (WA) covers the field in relation to the appellate rights of a nonparty in criminal proceedings Criminal law Accused summoned to appear as a witness at an examination before an examiner of the Australian Crime Commission Accused charged with refusing to answer a question he was required to answer by the examiner Summons for the production of documents going to the validity of the witness summons Whether legitimate forensic purpose in production of documents Construction of s 28 and s 30 of the Australian Crime Commission Act 2002 (Cth) Whether service of valid summons an element of the offence or precondition to the exercise of the power to 'require' an answer and, if so, whether it is sufficient that the summons is valid on its face Whether open to accused to mount a collateral attack on the validity of the summons in criminal proceedings Operation of the presumption of regularity in criminal proceedings |
Legislation: | Acts Interpretation Act 1901 (Cth), s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Crime Commission Act 2002 (Cth), s 7, s 7A, s 7B, s 7C, s 7C(3), s 7C(4), s 24A, s 25A, s 25A(1), s 25A(2), s 25A(3), s 25A(6), s 25A(9), s 25A(15), s 26, s 27, s 28, s 28(1), s 28(1A), s 28(5), s 28(7), s 28(8), s 29, s 29(1A), s 29(5), s 30, s 30(1), s 30(2), s 30(2)(a), s 30(2)(b), s 30(2)(c), s 30(4)(a)(ii), s 33, s 34, s 34A, s 36(3), s 57 Corruption and Crime Commission Act 2003 (WA), s 46, s 96, s 160 Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Appeals Act 2004 (WA), s 23, s 24, s 26 Criminal Code (Cth), s 3.1 Criminal Code (WA), s 611A(3) Criminal Procedure Act 2004 (WA), s 90, s 98, s 98(2), s 98(6), s 123(2), s 163, s 166, s 166(2) Criminal Procedure Rules 2005 (WA), r 34, r 34(3) District Court of Western Australia Act 1969 (WA), s 6(1), s 79(1), s 79(1)(b), s 79(3) Judiciary Act 1903 (Cth) Supreme Court Act 1935 (WA), s 58(1)(a), s 58(1)(m) |
Case References: | A B Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296 Allbeury v Corruption and… |
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Details
- Case
- [2012] WASCA 103
- Decision Date
CaseChat Overview and Summary
The Australian Crime Commission sought to appeal a decision of the District Court of Western Australia, which dismissed an application by the appellant, Mr Marrapodi, to set aside a witness summons served on him in criminal proceedings. The Commission had summoned Mr Marrapodi to appear before an examiner in relation to his alleged involvement in an offence under the Criminal Code. Mr Marrapodi was subsequently charged with refusing to answer questions he was required to answer by the examiner. He applied to the District Court to set aside the summons, arguing that it was invalid as the service of the summons was not in accordance with the Australian Crime Commission Act 2002. The District Court dismissed the application, and the Commission sought to appeal to the Court of Appeal.
The primary legal issue before the Court of Appeal was whether the appellant had the right to appeal the District Court's decision to dismiss his application to set aside the witness summons. The Court had to consider the scope of s 79(1) of the District Court of Western Australia Act 1969 and whether the Criminal Appeals Act 2004 covered the field in relation to the appellate rights of a non-party in criminal proceedings. The Court also had to determine whether the appellant could collaterally attack the validity of the witness summons in the criminal proceedings.
The Court of Appeal found that the appellant did not have the right to appeal the District Court's decision to dismiss his application to set aside the witness summons. The Court held that the Criminal Appeals Act 2004 covered the field in relation to the appellate rights of a non-party in criminal proceedings and that the appellant's appeal was, therefore, out of time. The Court further held that the appellant could not collaterally attack the validity of the witness summons in the criminal proceedings, as the presumption of regularity applied. The Court found that the appellant's argument that the service of a valid summons was a precondition to the exercise of the power to 'require' an answer was not supported by the statutory provisions. The Court also held that the appellant could not challenge the validity of the summons on its face.
The Court of Appeal dismissed the appeal and affirmed the decision of the District Court.
The primary legal issue before the Court of Appeal was whether the appellant had the right to appeal the District Court's decision to dismiss his application to set aside the witness summons. The Court had to consider the scope of s 79(1) of the District Court of Western Australia Act 1969 and whether the Criminal Appeals Act 2004 covered the field in relation to the appellate rights of a non-party in criminal proceedings. The Court also had to determine whether the appellant could collaterally attack the validity of the witness summons in the criminal proceedings.
The Court of Appeal found that the appellant did not have the right to appeal the District Court's decision to dismiss his application to set aside the witness summons. The Court held that the Criminal Appeals Act 2004 covered the field in relation to the appellate rights of a non-party in criminal proceedings and that the appellant's appeal was, therefore, out of time. The Court further held that the appellant could not collaterally attack the validity of the witness summons in the criminal proceedings, as the presumption of regularity applied. The Court found that the appellant's argument that the service of a valid summons was a precondition to the exercise of the power to 'require' an answer was not supported by the statutory provisions. The Court also held that the appellant could not challenge the validity of the summons on its face.
The Court of Appeal dismissed the appeal and affirmed the decision of the District Court.
Orders
Orders of the court
Leave to appeal granted
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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