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Palmer v Kizon

Palmer v Kizon

Case [1999] WASC 160 8 September 1999

Admissibility of Evidence

Jurisdiction

Subpoena

Evidence Law

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PALMER -v- KIZON [1999] WASC 160

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 160
Case No:	IND:218/1998	Heard:	2 SEPTEMBER 1999
Coram:	HEENAN J	Delivered:	8/09/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Subpoena set aside
PDF Version

Parties:	MICHAEL JOHN PALMER JOHN KIZON
Catchwords:	Evidence Listening devices Telephone interception Warrants issued to Federal Police Evidence of conversations so obtained to be led at trial Subpoena for defence Production sought of affidavits in support of warrants Application to set aside subpoena No ground for challenge to validity of warrants
Legislation:	Customs Act 1901 (Cth) Telecommunications (Interception) Act 1979 (Cth)
Case References:	Alister v The Queen (1984) 154 CLR 404 Hilton v Wells (1985) 157 CLR 57 Love v Attorney General (NSW) (1990) 169 CLR 307 Ousley v The Queen (1997) 192 CLR 69 Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 Amer v Minister for Immigration, Local Government and Ethnic Affairs, unreported; Fed C of A (Lockhart J); No 827 of 1989; 19 December 1989 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 Bunning v Cross (1978) 141 CLR 54 Cain v Glass (No 2) (1985) 3 NSWLR 230 Carroll v Attorney-General (NSW)(1993) 70 A Crim R 162 Commissioner of the Australian Federal Police v Poompiriyapinte & Ors, unreported; SCt of NSW (Badgery-Parker J); 28 August 1990 Conway v Rimmer [1968] AC 910 Haj-Ismail v Madigan (1982) 45 ALR 379 Hilton v Wells (1985) 5 FCR 296 Kizon v Palmer (1997) 72 FCR 409 Marinovich v Simpson & Ors, unreported; Fed C of A; No 529 of 1987; 11 September 1987 McArthur v Williams (1936) 55 CLR 324 Murphy v R (1989) 167 CLR 94 Ousley v R (1997) 148 ALR 510 R v Bebic, unreported; CCA SCt of NSW (Samuels JA, Nagle CJ & Cantor J) No 2146A of 1981; 27 May 1982 R v Saleam (1989) 16 NSWLR 14 R v Yooyen Tait & Poompiriyapinte (1991) 57 A Crim R 226 R v Young (1983) 9 A Crim R 58 Sankey v Whitlam (1978) 142 CLR 1 Wolf v The Magistrates' Court at Melbourne & Anor, unreported; SCt of VIC (O'Bryan J); 30 April 1993 Young v Quin (1984) 56 ALR 168 Zarro v Australian Securities Commission (1992) 36 FCR 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : PALMER -v- KIZON [1999] WASC 160 CORAM : HEENAN J HEARD : 2 SEPTEMBER 1999 DELIVERED : 8 SEPTEMBER 1999 FILE NO/S : IND 218 of 1998 BETWEEN : MICHAEL JOHN PALMER

Applicant

AND

JOHN KIZON

Respondent

Catchwords:

Evidence - Listening devices - Telephone interception - Warrants issued to Federal Police - Evidence of conversations so obtained to be led at trial - Subpoena for defence - Production sought of affidavits in support of warrants - Application to set aside subpoena - No ground for challenge to validity of warrants

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 Palmer v Kizon

Details

AGLC: Palmer v Kizon [1999] WASC 160
Case: [1999] WASC 160
Decision Date

CaseChat Overview and Summary

Michael John Palmer, the applicant, brought an action against John Kizon, the respondent, in the Supreme Court of Western Australia. The respondent has been indicted on two counts: the first count charges him with conspiracy to possess cannabis with intent to sell or supply it to another, and the second count charges him with attempting to possess cannabis for that purpose. The case is set to be heard by the court and a jury from 1 November 1999. The respondent seeks the production of five affidavits sworn by a former detective of the Australian Federal Police in support of applications for the issue of warrants authorising the use of listening devices and telephone intercepts. The applicant argues that the subpoena should be set aside because there is no legitimate forensic purpose for its issuance and it was issued for the purpose of "fishing" and is an abuse of process. The affidavits are also subject to public interest immunity.

The court had to decide whether the subpoena should be set aside or not. The court held that the warrants were issued by a Federal Court Judge and that the issue of the warrant was an administrative and not a judicial act. The court can review the issue of the warrant but cannot enquire into the sufficiency of the material placed before the issuing authority to support it or adjudicate as to whether the issuing authority was in fact satisfied as to any statutory requirements. The court also held that there is no ground for challenging the validity of the warrants as there is nothing to make it appear that any of the affidavits will tend to show that the issue of any of the warrants was invalid. The court held that examining the affidavits would serve no purpose other than to find out whether the respondent has a case. The court held that there is no legitimate forensic purpose to be served by the subpoena and it will be set aside.

The court set aside the subpoena and returned the confidential documents to counsel in envelopes unopened and sealed as they were when they were received.

Orders