R v Ashby - [2010] VSC 14

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1460 of 2009

THE QUEEN

NOEL ASHBY

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2010
DATE OF RULING:	5 February 2010
CASE MAY BE CITED AS:	R v Ashby
MEDIUM NEUTRAL CITATION:	[2010] VSC 14

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CRIMINAL LAW – Hearing before a purported delegate of the Director of Police Integrity – Perjury charges based on answers obtained pursuant to power to examine on oath – Delegation by instrument – No delegation to relevant person as defined – Delegation invalid – Crimes Act 1958 s 314; Police Regulation Act 1958 ss 69, 86NA, 86P, 86PA, 86PB, 86PC, 86PD, 86PE, 86Q, 86QA, 86R, 102A, 102AB, 102B, 102BA, 102C, 102D, 102E, 102F; Evidence Act 1958 ss 3, 18, 100, 110, 111, 151; Interpretation of Legislation Act 1984 ss 35, 42A; Sex Offenders Registration Act 2004 s 66C.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C Ryan SC with Mr T Wallwork	Office of Public Prosecutions
For the Accused	Mr P Priest QC with Ms R Shann	Tony Hargreaves and Partners Lawyers

TABLE OF CONTENTS

The Director........................................................................................................................................ 2

The Director’s powers....................................................................................................................... 4

The power to delegate....................................................................................................................... 5

Prosecution arguments.................................................................................................................... 11

A.. The use of the past tense...................................................................................................... 11
B... The order of steps is immaterial......................................................................................... 13
C.. The intention of the Director............................................................................................... 14
D.. Does breach of the requirement invalidate the appointment?....................................... 15
E... What makes an instrument of delegation effective?........................................................ 16
F... Alternative sources of power.............................................................................................. 16
G.. Was the oath taken by the accused in any event sufficient to found a charge of perjury? 17
H.. Section 110 of the Evidence Act 1958................................................................................... 18
I.... Section 111 of the Evidence Act 1958................................................................................... 18

Conclusion......................................................................................................................................... 18

HIS HONOUR:

The accused has pleaded not guilty to 11 counts of perjury. Each count is founded on the allegation that the accused knowingly falsely swore to particular matters on 15^th October 2007 when he was ‘a witness at a hearing held pursuant to section 86P(1)(a) of the Police Regulation Act 1958 (‘the PR Act’).’

The hearing in question was conducted by Mr Murray Wilcox QC[1] as a delegate of the Director of Police Integrity (‘the Director’). The defence contends that the delegation founding the hearing was not effected in accordance with the PR Act and in turn the hearing was not one conducted pursuant to s 86P(1)(a) of the PR Act or other lawful authority.
[1]As he then was.

The defence relies on s 151 of the Evidence Act 1958 (‘the Evidence Act’) which provided at the relevant date:

It shall not be lawful for any person to administer or cause or allow to be received any oath or affidavit touching any matter or thing whereof such person hath not jurisdiction or cognisance by or under some Act or ordinance in force. But nothing in this section shall be construed to extend to any oath solemn affirmation or affidavit before any person in…

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 R v Ashby

Details

AGLC: R v Ashby [2010] VSC 14
Case: [2010] VSC 14
Decision Date: 5 February 2010

CaseChat Overview and Summary

In the matter of R v Ashby, the High Court of Australia was tasked with determining the validity of a delegation made under the Crimes Act 1958. The respondent, Ashby, faced perjury charges stemming from answers provided under oath during an examination conducted by an individual purported to be a delegate of the Director of Police Integrity. The central issue revolved around whether the delegation in question was validly executed, given the specific statutory definitions and the applicable legislative framework.

The court was required to examine the delegation process under the Police Regulation Act 1958, specifically focusing on whether the individual who conducted the examination was properly designated as a delegate of the Director of Police Integrity. The relevant provisions of the Crimes Act, Police Regulation Act, and other supporting legislation were scrutinised to determine the validity of the delegation. The court's analysis also included the interpretation of the term "delegate" as defined under the relevant statutes, along with the application of the Interpretation of Legislation Act 1984.

Upon careful examination of the statutory language and the specific delegation instrument, the court concluded that the delegation was invalid as it did not conform to the statutory requirements. The respondent's challenge to the validity of the delegation was upheld, leading to the quashing of the charges against him. The court's decision underscored the importance of strict compliance with statutory definitions and the legislative framework governing the delegation of powers. This ruling reinforced the principle that any deviation from prescribed statutory mandates can render a delegation invalid.

Orders