R v AX - [2009] VSC 153

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9635 of 2008

THE QUEEN (on the application of the Chief Examiner pursuant to s 49 of the Major Crimes (Investigative Powers) Act 2004, a Certificate of Charge dated 7 November 2008 and the order of the Honourable Justice Lasry made on 7 November 2008 in proceeding No. 12 of 2008.	Applicant
v
AX	Respondent

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 13 November and 15 December 2008; 21, 28 January, 4, 26 February and 20 March 2009
DATE OF JUDGMENT:	22 April 2009
CASE MAY BE CITED AS:	R v AX
MEDIUM NEUTRAL CITATION:	[2009] VSC 153

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CRIMINAL – Proceedings pursuant to Major Crime (Investigative Powers) Act 2004 – Contempt proceedings under s.49(1)(b) – can contempt provisions apply to a person to whom a s.18 order applies – drafting anomaly in legislation – contempt provisions do not apply – originating motion dismissed – costs awarded to respondent.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr OP Holdenson QC	Office of the Chief Examiner
For the Respondent	Mr P Faris QC	Lethbridges

HIS HONOUR:

On 7 November 2008, AX appeared before the Chief Examiner following an order made pursuant to s 18 of the Major Crime (Investigative Powers) Act 2004. Sub‑s (2) of that section provides:

If a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court of the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing the person before the Chief Examiner to give evidence at an examination.

The order pursuant to s 18 had been made by the Chief Examiner on 14 October 2008. The custody order in its terms gave notice to the respondent that he was to “give evidence before the Chief Commissioner in relation to ….. “. A particular investigative subject matter was then identified.

On 7 November 2008 the respondent was before the Chief Examiner and was represented by counsel. When called upon by the Chief Examiner to swear an oath with a view to him giving evidence, AX declined to do so.

Pursuant to s 49(1)(b) of the Act, the Chief Examiner later provided a certificate to the effect that the respondent refused to be sworn or make an affirmation. Section 49(1)(b) of the Act provides that a person attending before the Chief Examiner in answer to a witness summons is guilty of contempt of the Chief Examiner if the person “being called or examined as a witness at an examination, refuses to be sworn or make an affirmation or, without reasonable excuse, refuses or fails to answer any question relevant to the subject matter of the examination;”

The Chief Examiner certified that he was satisfied there was evidence that the witness, being the respondent, was in contempt of the Chief Examiner…

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 AX

Details

AGLC: R v AX [2009] VSC 153
Case: [2009] VSC 153
Decision Date: 22 April 2009

CaseChat Overview and Summary

In the case of R v AX, the dispute arose under the Major Crime (Investigative Powers) Act 2004, with the accused, AX, facing contempt proceedings pursuant to section 49(1)(b) of the Act. AX was subject to a section 18 order, which is a pre-charge investigative order. The issue before the court was whether the contempt provisions of the Act could be applied to AX, given that the contempt provisions were drafted in terms that did not explicitly include individuals subject to section 18 orders. The High Court of Australia was tasked with resolving this ambiguity in the legislative drafting.

The court examined the language of the relevant sections of the Act and concluded that the contempt provisions did not extend to individuals who were subject to section 18 orders. The court held that there was a drafting anomaly in the legislation, which resulted in a gap in the application of the contempt provisions. Consequently, the contempt proceedings against AX were dismissed as the contempt provisions did not apply to him. The court further awarded costs to the respondent, acknowledging the complexity of the issue and the need to clarify the scope of the legislation.

This decision underscores the importance of precise legislative drafting to avoid unintended gaps or ambiguities. The court's ruling clarified that the contempt provisions of the Major Crime (Investigative Powers) Act 2004 do not apply to individuals subject to section 18 orders, providing certainty to those affected by such orders. The dismissal of the contempt proceedings and the awarding of costs to the respondent was a significant outcome, reflecting the court's consideration of the legal principles and the specific circumstances of the case.

Orders