Brott v McDonald - [1989] HCATrans 65

~ :,;-.~

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Melbourne No M38 of 1988

B e t w e e n -

ISSAC ALEXANDER BROTT
Applicant

and
SONIA ANNE McDONALD
Respondent

Application for special
leave to appeal

MASON CJ DAWSON J McHUGH J

Brott
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 17 MARCH 1989, AT 10.41 AM
Copyright in the High Court of Australia

MlT3/l/PLC 1 17/3/89

MR M.E.J. BLACK, QC: If the Court pleases, I appear

with my learned friend, MR G.T. PAGONE, for the
applicant in-the matter. (instructed by
S.V. Winter & Co)

MR R.A. SUNBERG, QC: If the Court pleases, I appear with my

learned friend, MR S.P. WHELAN, for the respondent.
(instructed by the Director of Public Prosecutions)

MR BLACK: If the Court pleases, this application raises two

points. They each arise under the Corrrrnonwealth
ROYAL COMMISSIONS ACT and one of them involves the interrelationship between the Corrrrnonwealth Act and
a Victorian evidentiary provision governing royal
corrrrnissions.

MASON CJ:

Can I ask you this question at the outset:

can

you appeal to the Full Court?

MR BLACK:

No, Your Honour.

MASON CJ:

You cannot?

MR BLACK:

Cannot.

Because it is an order to review from a

magistrate's decision, the Act specifically prevents
any further appeal. The only place to come is here.

MASON CJ: Yes. I thought there had been some legislative

amendment in recent years that had remedied this
position. You are likely to know more about it than
I do.

MR BLACK:

Your Honour, my understanding is that that is the

position. I have not heard of it being changed and
I know it certainly was the position when I looked
at it. Your Honour, we all believe, all being, if
I may say so, Victorians, that it has not changed.

DAWSON J: This Court has said that it ought to change.

MR BLACK:	Yes, we would respectfully say that too.
MASON CJ:	P~rhaps if we refuse you special leave it may

accelerate the process of change.

MR BLACK: It never does, Your Honour, it never does. Might I

hand to the Court co.pies of·the relevant provisions

of the Commonwealth Act. Those are sections 6D
and 6DD and also copies of section 30 of the Victorian

EVIDENCE ACT? The Court will be aware that this
matter arose when a witness - - -

MASON CJ: Yes, we are familiar with the circumstances in

which it arose.

MR BLACK:

Yes, Your Honour. Well, the two points were

these - - -

MlT3/2/PLC

Brott

17/3/89

MASON CJ: It was determined in advance, in effect, of

a plea being taken and no evidence was actually
adduced as a result of the ruling.

MR BLACK:

We make no point about the procedural matter.

MASON CJ: That has disappeared out of the case?

MR BLACK:

That has disappeared but there are two points

that remain and the first concerns the power of
a commissioner to make a non-publication order
before any evidence is given…

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 Brott v McDonald

Details

AGLC: Brott v McDonald [1989] HCATrans 65
Case: [1989] HCATrans 65
Decision Date

CaseChat Overview and Summary

The applicant, Issac Alexander Brott, sought special leave to appeal to the High Court of Australia from an order made by a magistrate. The respondent was represented by the Director of Public Prosecutions. The dispute concerned the interrelationship between the Commonwealth *Royal Commissions Act* and a Victorian evidentiary provision, specifically section 30 of the *Victorian Evidence Act*.

The High Court was required to determine two principal legal issues. Firstly, whether a Royal Commissioner possessed the power to make a non-publication order prior to the adduction of any evidence. Secondly, the applicant contended that section 30 of the *Victorian Evidence Act*, which generally provides protection against self-incrimination except in prosecutions for perjury, should operate to protect a person in the context of a joint Commonwealth/Victorian royal commission.

The applicant argued that the Commissioner did have the power to make a non-publication order before evidence was given, contrary to the primary judge's findings. Furthermore, the applicant submitted that section 30 of the *Victorian Evidence Act* applied to protect individuals under the terms of the joint commission, drawing an analogy to *Giannarelli v R* where a Commonwealth provision protected individuals from prosecution under Victorian law. The Court noted that the procedural matter, which had been determined in advance of evidence being taken, had disappeared from the case.

Orders