JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 September 2012
DATE OF JUDGMENT:	17 October 2012
CASE MAY BE CITED AS:	R v Debono
MEDIUM NEUTRAL CITATION:	[2012] VSC 476

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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.

PRACTICE AND PROCEDURE – Evidence – Subpoena – Legitimate forensic purpose – Public interest immunity – Claim that production of documents would prejudice the investigation or prosecution of an offence – Claim upheld – Evidence Act 2008 ss 130, 131A.

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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
For the Chief Commissioner of Police and the Chief Examiner	Dr A M Dinelli	Solicitor, Victoria Police

HIS HONOUR:

Introduction and summary

This judgment concerns a claim by the Chief Commissioner of Police for the exclusion of parts of documents that he produced to the Court pursuant to a subpoena issued by the Accused. The claim is made under s 130 of the Evidence Act 2008 (‘Act’), which deals with what is commonly known as ‘public interest immunity’.

The Accused was served with a custody order dated 13 May 2009 made pursuant to s 18(2) of the Major Crime (Investigative Powers) Act 2004 (‘MCIP Act’) requiring him to attend before the Chief Examiner to give evidence (‘Custody Order’). The Custody Order was issued by the Chief Examiner under a coercive powers order made on 13 August 2008 by Cummins J and corrected by his Honour on 9 October 2008 (‘CPO’). The CPO was made in respect of the organised crime offence described initially as ‘Murder’, and following the correction on 9 October 2008, as ‘Murder of Wayne Keith Boyd on or about 9 November 2001’. The CPO was extended on 10 February 2009.

On 21 May 2009, the Accused attended before the Chief Examiner but declined to take an oath or make an affirmation. On 17 July 2009, the Accused was charged with an offence under s 36(3) of the MCIP Act, of refusing to take an oath or make an affirmation.

On 2 September 2011, the Accused commenced a proceeding seeking a revocation of the CPO and on 9 February 2012, he commenced a proceeding seeking judicial review of the CPO. On 8 May 2012, both proceedings were dismissed.[1]
[1]See BCD v Chief Examiner [2012] VSC 193 (11 May 2012).

In the criminal proceeding against him, the Accused sought to collaterally challenge the validity of the MCIP Act, the CPO and the…

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 Debono

Details

AGLC: Director of Public Prosecutions (Vic) v Debono [2012] VSC 476
Case: [2012] VSC 476
Decision Date: 17 October 2012

CaseChat Overview and Summary

In the case of R v Debono, the appellant faced a charge of refusing to take an oath or make an affirmation in accordance with section 36(3) of the Major Crime (Investigative Powers) Act 2004. The appellant filed a pre-trial application under section 199(1)(c) of the Criminal Procedure Act 2009 to challenge the validity of the Act and to quash a coercive powers order and a custody order made under the Act. The application was heard in the Supreme Court of the relevant jurisdiction.

The primary legal issues that the court had to decide were the validity of the Major Crime (Investigative Powers) Act 2004 and the coercive powers and custody orders made under it. The court also needed to determine whether documents subpoenaed under the Act should be produced, considering the claims of public interest immunity and potential prejudice to the investigation or prosecution of an offence. The appellant argued that the Act was unconstitutional, and that the orders were invalid. The respondent contended that the Act was valid and that the coercive powers and custody orders were appropriately made. Additionally, the respondent argued that the documents should not be produced due to potential prejudice to the investigation.

The court found that the Major Crime (Investigative Powers) Act 2004 was valid and that the coercive powers and custody orders were appropriately made. The court held that the appellant's constitutional challenge was unsuccessful, as the Act was within the legislative power of the parliament. The court also ruled that the claims of public interest immunity were valid, and that the production of the subpoenaed documents would likely prejudice the investigation or prosecution of an offence. Consequently, the court quashed the charge against the appellant and ordered that the documents should not be produced.

The final orders of the court were that the charge against the appellant was quashed, and the coercive powers and custody orders were confirmed as valid. The court also ruled that the subpoenaed documents should not be produced due to the potential prejudice to the investigation or prosecution of an offence.

Orders