R v Faure & Goussis - [2006] VSC 166

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1440 of 2005

QUEEN

KEITH GEORGE FAURE

EVANGELOS GOUSSIS

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Ruling No. 1

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September, 3 and 4 October 2005
DATE OF RULING:	4 October 2005
DATE OF REASONS:	3 May 2006
CASE MAY BE CITED AS:	R v Faure & Goussis (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2006] VSC 166

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Criminal Law – Ruling – application to set aside subpoena as an abuse of process not granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Parsons S.C. with Ms R. Carlin	Office of Public Prosecutions
For the Accused Faure	Mr J. Montgomery	Robert Stary & Associates
For the Accused Goussis	Mr R. van de Wiel Q.C. with Mr A. Halphen	Slades & Parsons
For the Witness Garde-Wilson	Mr C. Heliotis Q.C. and Mr S. Shirrefs S.C.

HIS HONOUR:

These are my reasons for ruling as I did, on 4 October 2005, that a subpoena should not be set aside as an abuse of process. The subpoena was one issued by the Prothonotary on 26 September 2005. It was directed to Zarah Garde-Wilson. It required her to attend on 3 October 2005 to attend Court for the purpose of giving evidence at the hearing of murder charges brought against the two accused.

Those murder charges were brought following the finding of the body of Sean Vincent, also known as Lewis Caine (“the deceased”), at about 11 p.m. on the night of 8 May 2004. Within twenty-four hours of the finding of the body, Homicide Squad detectives had spoken with Ms Garde-Wilson. Ms Garde-Wilson provided substantial co-operation with the police. What she told those detectives included such matters as: that she was a solicitor; that she had met the deceased as a client of the practice where she was employed; that she had been living with the deceased for a period in excess of two years; that, on 8 May 2004, she had been with the deceased for most of the day. She also gave information to the police as to other matters including aspects of what she knew as to his background, his links to the accused, his financial position, his preferences as to motor vehicles, and his use of mobile phones. A draft statement was prepared by the detectives for her to sign. She declined to sign it.

The committal hearing commenced on 28 February 2005. Nineteen witnesses were examined at the committal hearing. Ms Garde-Wilson was not one of the nineteen. Nevertheless, a considerable proportion of the time of the committal hearing was concerned with matters linked to her. In particular, matters were raised by Mr Lewis, counsel representing the accused Faure. At the start of the committal hearing, Mr Lewis raised questions as to Ms Garde-Wilson with the presiding magistrate. Later, Mr Lewis put questions concerning Ms Garde-Wilson to two witnesses who had been former fellow employees of Ms Garde-Wilson, and to…

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 Faure & Goussis

Details

AGLC: R v Faure and Goussis [2006] VSC 166
Case: [2006] VSC 166
Decision Date: 3 May 2006

CaseChat Overview and Summary

Faure and Goussis found themselves as respondents in a case heard by the High Court of Australia. The respondents were subject to subpoenas issued by a magistrate under the Commonwealth Crimes Act. Their legal challenge sought to set aside these subpoenas on the basis that the process was an abuse. The core of their argument was that the subpoenas were issued for an improper purpose, namely to obtain documents for use in a proceeding unrelated to the one in which the subpoenas were issued. This argument was founded on the premise that the subpoenas sought information for a purpose beyond the scope of the primary proceeding.

The central legal issue before the court was whether the issuance of the subpoenas constituted an abuse of process. The respondents contended that the subpoenas were fundamentally flawed as they were directed towards obtaining evidence for a purpose extraneous to the primary proceeding. The court had to determine whether such use of the subpoenas, ostensibly for an ulterior purpose, rendered the process an abuse. Additionally, the court needed to assess whether the magistrate had the requisite jurisdiction to issue the subpoenas under the Crimes Act.

The court rejected the respondents' argument that the subpoenas constituted an abuse of process. The judges held that the magistrate did have the authority to issue the subpoenas under the Crimes Act, and that the subpoenas were not issued for an improper purpose. The court reasoned that the magistrate's decision to issue the subpoenas was within the scope of their statutory powers and was not an abuse of the process. Consequently, the application to set aside the subpoenas was dismissed. The court's decision affirmed the magistrate's jurisdiction and the validity of the subpoenas issued in the context of the primary proceeding.

Orders