JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	14 December 2012
DATE OF JUDGMENT:	1 February 2013
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2013] VSC 407

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CRIMINAL LAW – Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 – Collateral challenge to the validity of a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.

CHARTER OF HUMAN RIGHTS – Right to a fair trial – Right not to incriminate oneself – Whether the Supreme Court acts in an administrative capacity in making a coercive powers order – Whether a coercive powers order was unlawful due to an alleged breach of the right to a fair trial or the right not to incriminate oneself – Whether right to seek relief existed independently of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) – Definition of ‘public authority’ in s 4 of the Charter – Charter, ss 4, 6, 24, 25, 38, 39.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G H Livermore	Office of Public Prosecutions
For the Accused	Mr L C Carter	Lethbridges

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Procedural history.............................................................................................................................. 1

Facts relied upon by the Accused.................................................................................................... 3

Validity of the CPO............................................................................................................................ 7

Grounds for collateral challenge to a coercive powers order................................................ 7
Ground 2: Non-compliance with the Act................................................................................... 9
Ground 1: Non-compliance with the Charter......................................................................... 10

Relevant provisions of the Charter and the Act............................................................... 10
Did the Charter apply to the making of the CPO?........................................................... 13
Was the CPO invalid under s 38 of the Charter?.............................................................. 14
Is the condition in s 39 of the Charter satisfied?............................................................... 18
Error of law on the face of the record................................................................................. 23
Decision on Ground 1........................................................................................................... 23

Validity of the Custody Order....................................................................................................... 23

Proposed order.................................................................................................................................. 25

HIS HONOUR:

Introduction and summary

These reasons concern the Accused’s pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 (Vic) (‘CP Act’) for an order quashing a charge for an offence of refusing to take an oath or make an affirmation, contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 (‘Act’).

The Accused sought to quash the charge on the basis that a coercive powers order and a custody order that were made under the Act, and pursuant to which he was required to take an oath or make an affirmation, were invalid.[1]
[1]The Crown conceded that the Accused cannot be convicted unless it proves the validity of both orders.

The grounds of invalidity rely on alleged breaches of the Act and the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).

For the reasons that follow, the Accused has failed…

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 DPP v Debono

Details

AGLC: R v Debono [2013] VSC 407
Case: [2013] VSC 407
Decision Date: 1 February 2013

CaseChat Overview and Summary

The case involved a defendant who was charged with refusing to take an oath or make an affirmation contrary to section 36(3) of the Major Crime (Investigative Powers) Act 2004. The defendant sought to challenge the validity of the coercive powers order and custody order made under the Act. This challenge was made through a pre-trial application to quash the charge, pursuant to section 199(1)(c) of the Criminal Procedure Act 2009.

The court had to decide whether the Supreme Court acted in an administrative capacity in making a coercive powers order. The defendant argued that the coercive powers order was unlawful due to an alleged breach of the right to a fair trial and the right not to incriminate oneself. Additionally, the court needed to determine whether the right to seek relief existed independently of the Charter of Human Rights and Responsibilities Act 2006 and the definition of 'public authority' in section 4 of the Charter.

The court found that the Supreme Court did not act in an administrative capacity in making a coercive powers order. However, the court did find that the coercive powers order was unlawful due to an alleged breach of the right to a fair trial and the right not to incriminate oneself. The court also found that the right to seek relief existed independently of the Charter of Human Rights and Responsibilities Act 2006 and that the definition of 'public authority' in section 4 of the Charter was broad enough to include the Supreme Court.

The court quashed the coercive powers order and custody order made under the Major Crime (Investigative Powers) Act 2004 and dismissed the charge against the defendant.

Orders