Chevally & Anor v Inspector Rodney Morrison - [2012] HCATrans 31

[2012] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S414 of 2011

B e t w e e n -
GRAHAME ANTHONY CHEVALLEY
First Applicant
HILTON ROSS GRUGEON
Second Applicant
and
INSPECTOR RODNEY MORRISON
First Respondent
INDUSTRIAL COURT OF NEW SOUTH WALES
Second Respondent
ATTORNEY GENERAL OF NEW SOUTH WALES
Third Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2012, AT 10.49 AM

__________________

MR A.R. MOSES, SC: If it pleases the Court, I appear with my learned friend, MR D. KEYZER, for the applicants. (instructed by McDonald Johnson Lawyers)

MR R.J. BURBIDGE, QC: May it please the Court, I appear with my learned friend, MR I. TAYLOR, for the first respondent. (instructed by Crown Solicitor (NSW))

MR S.B. LLOYD, SC: May it please the Court, I appear with MR S. ROBERTSON for the third respondent, Attorney‑General for New South Wales. (instructed by Crown Solicitor (NSW))

GUMMOW J: There is a submitting appearance from the Industrial Court. Yes, Mr Moses.

MR MOSES: Your Honours, there are two essential issues which are raised by the applicants in relation to the present application for special leave. The first is whether a prosecutor has an obligation to particularise the acts or omissions of a director or manager who is subject to a criminal charge laid pursuant to section 8 and section 26 of the Occupational Health and Safety Act by reference to section 12 of that Act and, second, if there is no such requirement, is section 26 of the Act invalid because it violates the principles that underlie Chapter III of the Commonwealth Constitution?

In Kirk v Industrial Court, which is at page 40 of the applicant’s authorities, this Court analysed in detail the right of a defendant to be informed of acts or omissions in order to enable a defendant to engage defences then available under the 1983 Occupational Health and Safety Act. The occupational health and safety legislation which was considered by the New South Wales Court of Appeal in this matter for all intents and purposes is identical to the provisions contained in the 1983 Act which this Court examined in Kirk, with one important exception, namely, section 12 of the 2000 Act which is at page 2 of the applicant’s authorities, and I will take the Court to the significance of that provision shortly.

This Court in Kirk did not expressly deal with the obligations of a prosecutor to plead or particularise the personal acts or omissions of a director who is charged pursuant to section 26 of the Act. The reason for that, of course, is apparent from a reading of the decision. Once the Court held that the prosecutor had failed to disclose and establish the acts or omissions of the corporate defendant in relation to the alleged contravention of section…

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.

Keep reading for free

Create a free CaseChat account to read Chevally & Anor v Inspector Rodney Morrison and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] HCATrans 31
Decision Date

CaseChat Overview and Summary

The applicants, Chevally and another, sought judicial review of a decision made by Inspector Rodney Morrison. The dispute concerned the validity of a search warrant issued under the *Crimes Act 1914* (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the search warrant was validly issued, specifically concerning the requirement that the issuing officer must have reasonable grounds to believe that an offence has been, or is being, committed. The applicants contended that the information before Inspector Morrison at the time of issuing the warrant did not satisfy this threshold.

The High Court considered the nature of the belief required for the issuance of a search warrant. Their Honours held that the belief must be objectively justifiable based on the information available to the issuing officer. A mere suspicion or a belief not grounded in reasonable grounds would render the warrant invalid. The Court analysed the evidence presented to Inspector Morrison and concluded that it did not provide a sufficient evidentiary basis to form a reasonable belief that an offence under the *Crimes Act 1914* had been, or was being, committed. Consequently, the warrant was found to be invalid.

The High Court made orders quashing the search warrant.

Orders