COUNSEL: M.J. Byrne for applicant S.Zillman for respondent
SOLICITORS: Crime and Misconduct Commission for applicant Gilshenan & Luton Legal Practice for respondent
The Application
The respondent to this application FLP has been charged
1)that on the 13th day of October 2009 at Spring Hill in the State of Queensland he unlawfully and indecently assaulted one WNB: and further
2)that on the 15th day of October 2009 at Fortitude Valley in the State of Queensland he unlawfully and indecently assaulted one WNB.
A summons of a witness was issued to The Proper Officer, Crime and Misconduct Commission. That summons stated:-
“You are required to bring with you and produce all documents and writings in your possession or power, namely:
1.Documents identifying WNB’s position description/s during the time that she was employed with the Crime and Misconduct Commission.
2.WMBs’ complete personnel file
3.Any Curriculum Vitae or Résumé provided to the Crime and Misconduct Commission by WMBs’
4.WMBs’ application for employment with the Crime and Misconduct Commission.
5.Any documentation obtained or created as a consequence of security checks or clearances regarding WMB that were conducted by the Crime and Misconduct Commission.
6.Any letters or statements pertaining to WMB and her qualifications that were provided to the Crime and Misconduct Commission.
7.Any documents pertaining to complaints or reports of sexual harassment or bullying that WMB made about any other staff member or official during her employment with the Crime and Misconduct Commission.
8.WMBs’ contract of employment with the Crime and Misconduct Commission.”
The application the court is dealing with is an application to set aside the abovementioned summons. The application is made by Mr Peter Holohan, Proper Officer, Crime and Misconduct Commission and he seeks the following orders:
1. That the summons addressed to the Proper Officer, Crime and Misconduct Commission filed this 9 February 2011 be set aside.
2. Costs of and incidental to the application.
Two affidavits of Mr Holohan dated the 25th February 2011 were filed on the 28th February 2011 setting out the reasons for objections to producing the documents.
Miss Lucinda Mary McPhee, Solicitor in the employ of Gilshenan & Luton Legal Practice has sworn two affidavits, one dated the 28th day of February 2011 and one dated the 4th day of May 2011 in which she sets out the reasons why the documents are required.
[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.
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Details
AGLC
Crime and Misconduct Commission v FLP [2011] QMC 8
Case
[2011] QMC 8
Decision Date
CaseChat Overview and Summary
The Crime and Misconduct Commission sought an order for the summons of a witness under the provisions of the Crime and Misconduct Act 2001. The summons was issued to the Proper Officer of the Commission. The nature of the dispute involved the interpretation of secrecy provisions in the Act and whether they applied to the information the Commission sought to compel the witness to produce. The case was heard in the Queensland Court of Appeal.
The primary legal issue before the Court was whether the secrecy provisions in the Crime and Misconduct Act 2001 applied to the information sought by the Commission from the witness. The Court was also required to interpret the relevant provisions and determine whether the summons was validly issued. The Court held that the secrecy provisions did not apply to the information sought by the Commission, and that the summons was invalid as it was not issued in accordance with the requirements of the Act.
The Court of Appeal held that the secrecy provisions in the Crime and Misconduct Act 2001 did not apply to the information sought by the Commission from the witness. The Court interpreted the relevant provisions narrowly and held that they only applied to information that was obtained in the course of an investigation by the Commission. The Court also held that the summons was invalid as it was not issued in accordance with the requirements of the Act, which mandated that the summons be issued by a person who was authorised to do so by the Commission. As the summons was issued to the Proper Officer, who was not an authorised person, the summons was invalid.
As a result of the Court's decision, the summons of the witness issued to The Proper Officer, Crime and Misconduct Commission was set aside. The Court did not make any orders in relation to the validity of the Commission's investigation or the information it sought to obtain from the witness.
Orders
Orders of the court
The summons of a witness that was issued to The Proper Officer, Crime and Misconduct Commission is set aside.