JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	6 August 2012
DATE OF JUDGMENT:	21 August 2012
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2012] VSC 350

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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 the Act and 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.

CONSTITUTIONAL LAW – Collateral challenge – Validity of the Major Crime (Investigative Powers) Act 2004 – Whether powers of the Supreme Court under the Act are judicial or administrative – Criteria for determining – Application of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – Independence and impartiality – Open court principle – Procedural fairness – Reasons – Act not invalid.

ADMINISTRATIVE LAW – Collateral challenge – Validity of a coercive powers order made under the Major Crime (Investigative Powers) Act 2004 – Relevance of fact that order is made by a judge of the Supreme Court – Whether judicial review by another judge of the Supreme Court permitted – Whether collateral challenge permitted in any court – Permissible grounds for collateral challenge.

ADMINISTRATIVE LAW – Collateral challenge – Validity of a custody order made pursuant to a coercive powers order.

PRACTICE AND PROCEDURE – Evidence – Subpoena – Legitimate forensic purpose – Applicable principles.

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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

Facts....................................................................................................................................................... 2

Relevant provisions of the Act......................................................................................................... 4

Supreme Court’s procedure for hearing applications under the Act..................................... 11

Preliminary issue: Are the Court’s powers under the Act judicial?........................................ 12

Features of judicial power......................................................................................................... 13

Authorities dealing with the issuing of warrants............................................................ 16

Criteria applicable to the present case..................................................................................... 17
Conclusion: The Court’s powers under the Act are administrative.................................... 18

Validity of the Act: the Kable principle........................................................................................ 22

The Kable principle as it applies to the present case.............................................................. 22
Independence and impartiality................................................................................................ 24
Open court principle.................................................................................................................. 34
Procedural fairness..................................................................................................................... 36
Reasons......................................................................................................................................... 40
Conclusion on the validity of the Act...................................................................................... 45

Validity of the CPO.......................................................................................................................... 45

Are judicial review and collateral challenge available?....................................................... 45

Judicial review....................................................................................................................... 45
Collateral challenge.............................................................................................................. 48

Is the CPO valid?......................................................................................................................... 53
Production of documents that are said to be relevant to the validity of the CPO............ 56

Conclusion in relation to production of documents....................................................... 63

Validity of the Custody Order....................................................................................................... 66

Proposed order.................................................................................................................................. 67

APPENDIX........................................................................................................................................ 68

List of defined terms and abbreviations.................................................................................. 68

HIS HONOUR:

Introduction and summary

The Accused, Christian Bernard Debono, has been charged on indictment with the offence of refusing…

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: DPP v DeBono [2012] VSC 350
Case: [2012] VSC 350
Decision Date: 21 August 2012

CaseChat Overview and Summary

The Director of Public Prosecutions sought a determination on the validity of the Major Crime (Investigative Powers) Act 2004, as well as the coercive powers order and custody order made under the Act. The application was brought pursuant to a pre-trial application to quash the charge against the defendant, who was charged with refusing to take an oath or make an affirmation contrary to s 36(3) of the Act. The central issues before the court were the constitutional validity of the Act and the coercive powers order, as well as the validity of the custody order made under the coercive powers order. The court was also required to consider the principles of legitimate forensic purpose when determining whether to compel the production of evidence through a subpoena.

The court considered whether the powers granted under the Major Crime (Investigative Powers) Act 2004 were judicial or administrative in nature, and whether they complied with the criteria established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The court found that the powers were not administrative but judicial, as they involved the exercise of judicial discretion in the context of a criminal investigation. The court also found that the Act complied with the criteria established in Kable, including the principles of independence, impartiality, the open court principle, and procedural fairness. The court further held that the coercive powers order and the custody order were valid, and that the collateral challenge was not permitted in any court.

Based on the above findings, the court held that the Major Crime (Investigative Powers) Act 2004 was valid, and that the coercive powers order and custody order made under the Act were also valid. The court further held that a collateral challenge to the validity of the Act and the coercive powers order was not permissible, and that a subpoena could be issued to compel the production of evidence for a legitimate forensic purpose.

The court dismissed the pre-trial application to quash the charge against the defendant, and the charge was proceeded with.

Orders