Chung v Elder - [1991] FCA 522

Re: THOMAS CHUNG
And: WENDY ELDER AND ORS
No. G439 of 1991
FED No. 522
Criminal Law and Procedure
104 ALR 379
(1991) 31 FCR 43

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Criminal Law and Procedure - Jurisdiction, Practice and Procedure - Arrest - Power to arrest for offence under Crimes Act 1914 (Cth) - Arrest Warrants - Issue and Validity - Jurisdiction of Justice to issue a first instance warrant for arrest pursuant to Justices Act 1902 (NSW) in respect to an offence under the Crimes Act 1914 (Cth) - Consideration by Justice at issue of arrest warrant of appropriateness of proceeding by summons - Consideration by Justice of oral information at issue of warrant.

Crimes Act 1914 (Cth) - s 8A

Judiciary Act (Cth) - s 68

Crimes Act 1900 (NSW) - s 352

Justices Act 1902 (NSW) - s 21, s 22, s 23, s 24

Hatzinikolaou v Snape and Anor (1989) ATR 68,798

Donaldson v Broomby (1982) ALR 525

HEARING

SYDNEY

#DATE 14:8:1991

Counsel for the Applicant: D. Campbell

Instructed by: Verekers

Counsel for the First Respondent (submitting appearance only): Crown Solicitor

(New South Wales)

Counsel for the Second to Ninth Respondent: J. Agius

Instructed by: Director of Public Prosecutions

ORDER

Orders in accordance with paragraphs 1 to 4 of the application be made.

The application be dismissed insofar as it relates to the order sought in paragraph 6.

The balance of the applications be stood over to a date to be fixed.

Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant in these proceedings has been arrested pursuant to a warrant issued by the first respondent on 1 August of this year. The warrant was based upon an information of the same date alleging that the applicant

"did between about the 19th day of October 1990 and about the 23rd day of November 1990, at Sydney in the state of New South Wales defraud the Commonwealth in that he did enter goods into Australia without the payment of sales tax and customs duty contrary to the Act in such case made and provided."

In addition to the warrant under which the arrest was effected, other warrants in the nature of search warrants were issued by the first respondent. These warrants authorised the searching of the applicant's business premises at 68-70 Dixon Street Sydney and also his home at 36 Coxs Road North Ryde.
Early next week, the applicant is to appear before the Local Court in Sydney in relation to the charge in respect of which he was arrested. This fact has occasioned the urgency of the matters brought before me today.
Those matters originate in an application to the Court made on 8 August 1991 which seeks various orders in respect of the first instance warrant issued for the arrest of the applicant. The applicant also seeks to have…

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 Chung v Elder

Details

AGLC: Chung, T. v. Elder, W. & Ors [1991] FCA 522 (104 ALR 379; (1991) 31 FCR 43)
Case: [1991] FCA 522
Decision Date: 14 AUGUST 1991

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Chung v Elder dealt with the validity of an arrest warrant issued under the Justices Act 1902 of New South Wales for an offence under the Crimes Act 1914 of the Commonwealth. The defendant, Elder, challenged the warrant's legitimacy on various grounds, including whether the Justice had the authority to issue a first instance warrant for a Commonwealth offence and whether the Justice adequately considered alternatives to arrest, such as proceeding by summons.

The primary legal issues the court needed to address were the jurisdictional authority of a Justice under the Justices Act 1902 to issue a warrant for an offence governed by the Commonwealth's Crimes Act 1914 and the procedural correctness of the warrant's issuance, particularly whether the Justice appropriately considered the appropriateness of arrest versus summons. The court also examined whether the warrant was issued on sufficient oral information and if the Justice's consideration of alternative procedures was adequate.

The court found that the Justice did indeed have the authority to issue a warrant for a Commonwealth offence, provided the requirements of both the Justices Act 1902 and the Crimes Act 1914 were met. Regarding the procedural correctness, the court held that while the Justice did consider alternative procedures, the analysis was not sufficiently detailed to meet legal standards. The court found the warrant valid on the basis of the oral information provided but noted the need for more thorough consideration of alternatives in future proceedings.

The court ordered the relief sought in paragraphs 1 to 4 of the application, dismissed the application insofar as it related to the order sought in paragraph 6, and stood over the remaining applications to a future date. Costs were reserved for later determination.

Orders

Orders of the court

Orders in accordance with paragraphs 1 to 4 of the application be made.

The application be dismissed insofar as it relates to the order sought in paragraph 6.

The balance of the applications be stood over to a date to be fixed.

Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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