Crime and Misconduct Commission v WSX & EDC

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SUPREME COURT OF QUEENSLAND

CITATION:

Crime and Misconduct Commission v WSX & EDC [2013] QCA 152

PARTIES:

CRIME AND MISCONDUCT COMMISSION
(appellant)
v
WSX
(respondent)

CRIME AND MISCONDUCT COMMISSION
(appellant)
v
EDC
(respondent)

FILE NO/S:

Appeal No 299 of 2013
Appeal No 301 of 2013
SC No 7874 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2013

JUDGES:

Chief Justice and Gotterson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In relation to each appeal:

1. That the respondent have leave to file and rely upon his notice of contention;

2. That the decision given in this court on 13 December 2012 be set aside;

3. That the decision of the Presiding Officer given on 21 August 2012, the subject of the appeal to this court, be affirmed; and

4. That the respondent pay the appellant’s costs of and incidental to the proceeding before the primary Judge, and on appeal, assessed as necessary on the standard basis.

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND –CRIME AND MISCONDUCT COMMISSION – the respondent was the victim of a violent assault – the respondent witness refused to answer a question posed by the presiding officer at a closed hearing due to his fear of possible retribution from the assailants – the presiding officer held that the respondent did not have a reasonable excuse and directed the respondent to answer the question – the respondent appealed against the decision of the presiding officer – the appellant subsequently appealed the decision of the primary Judge – whether the witness had a reasonable excuse not to comply with the direction to answer the question

Crime and Misconduct Act 2001 (Qld), s 176, s 177, s 194, s 195

Bank of Valletta plc v National Crime Authority (1999) 164 ALR 45; [1999] FCA 791, considered
Ganin Burden & Creswell v New South Wales Crime Commission (1993) 32 NSWLR 423; (1993) 70 A Crim R 417, cited
Lacey v Attorney General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited
R v Garland (1997) 95 A Crim R 264; [1997] QSC 145, cited
Registrar of the Court of Appeal v Gilby [1991] NSWCA 235, considered
Schultz v CMC (unreported, QSC, 31 October 2003), considered
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28, cited
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, distinguished
Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388, cited

COUNSEL:

W Sofronoff QC, and E J Longbottom, for the appellant
P Callaghan SC for the respondent

SOLICITORS:

Crime and Misconduct Commission for the appellant
Robertson O’Gorman Lawyers for the respondent

  1. CHIEF JUSTICE:  Introduction The respondent WSX (not his initials) was the victim of a serious assault…

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Details
Case
[2013] QCA 152
Decision Date

CaseChat Overview and Summary

The Crime and Misconduct Commission brought an appeal against the decision of the respondent, who was the victim of a violent assault, refusing to answer a question posed by the presiding officer at a closed hearing. The presiding officer had ruled that the respondent did not have a reasonable excuse for refusing to answer the question and directed the respondent to do so. The respondent appealed against the presiding officer's decision, and subsequently, the appellant appealed the decision of the primary Judge. The primary issue before the court was whether the respondent had a reasonable excuse for not complying with the direction to answer the question.

The court examined the relevant statutory provisions and found that the presiding officer had correctly applied the relevant law in directing the respondent to answer the question. The court held that the presiding officer's decision was not based on an error of law or an unreasonable exercise of discretion. The court also found that the respondent's fear of possible retribution from the assailants was not a reasonable excuse for refusing to answer the question, as the presiding officer had provided adequate safeguards to protect the respondent's safety.

The court dismissed the appellant's appeal and affirmed the decision of the presiding officer. The court also ordered that the respondent have leave to file and rely upon his notice of contention, that the decision given in the court on 13 December 2012 be set aside, that the decision of the Presiding Officer given on 21 August 2012 be affirmed, and that the respondent pay the appellant's costs of and incidental to the proceeding before the primary Judge, and on appeal, assessed as necessary on the standard basis.

Orders

Orders of the court

In relation to each appeal:

1. That the respondent have leave to file and rely upon his notice of contention;

2. That the decision given in this court on 13 December 2012 be set aside;

3. That the decision of the Presiding Officer given on 21 August 2012, the subject of the appeal to this court, be affirmed; and

4. That the respondent pay the appellant’s costs of and incidental to the proceeding before the primary Judge, and on appeal, assessed as necessary on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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