R v Fukusato

Case [2002] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

Cth DPP v Fukusato [2002] QCA 20

PARTIES:

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(applicant/respondent)
v
HARUNOBU FUKUSATO
(respondent/applicant)

FILE NO/S:

Appeal No 6456 of 2001
DC No 380 of 2000
DC No 3523 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2002

DELIVERED AT:

Brisbane

HEARING DATES:


22 October 2001 and 23 October 2001

JUDGES:

McMurdo P, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application to quash the indictment presented in the District Court against Harunobu Fukusato on 18 August 2000 by Francis James Walsh refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND - application to quash an indictment removed from District Court under s 68(5) Supreme Court of Queensland Act 1991 (Qld) as the officer of the Commonwealth Director of Public Prosecutions lacks legislative authority to prosecute it

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND - where indictment charges an offence under the Corporations Law of Queensland and offences under the Criminal Code (Qld) – where indictment presented by an officer of the Commonwealth Director of Public Prosecutions in the name of that officer and the Commonwealth Director

STATUTES - ACTS OF PARLIAMENT – VALIDITY OF LEGISLATION

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – INCONSISTENCY OF LAWS – PARTICULAR CASES – CRIMINAL MATTERS

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – MISCELLANEOUS POWERS OF THE COMMONWEALTH – MATTERS REFERRED BY STATES - whether the officer had legal authority to present the indictment charging an offence under the Corporations Law of Queensland – whether the Corporations (Commonwealth Powers) Act 2001 (Qld) is invalid because it was not approved by electors in accordance with s 53 Constitution Act 1867 (Qld) – whether s 109 Constitution applies – where the Corporations (Commonwealth Powers) Act 2001 (Qld) does not affect the power of the Queensland Parliament to make laws for the peace, welfare and good government of the state – where the referral of power to the Commonwealth is valid – where the prosecution of the offence is valid – Graham v Patterson (1950) 81 CLR 1 followed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PERSONS ENTITLED TO CONDUCT PROSECUTION - whether the officer of the Commonwealth Director had authority to present the indictment under s 560(2) Criminal Code (Qld) following the enactment of the Director of Public Prosecutions Act 1984 (Qld) - where nothing in the Director of Public Prosecutions Act 1984 (Qld) affects the operation of s 560(2) Criminal Code (Qld)

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – POWER OF INCIDENTAL LEGISLATION

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – MISCELLANEOUS POWERS OF THE COMMONWEALTH – MATTERS REFERRED BY STATES…

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Details
AGLC
R v Fukusato [2002] QCA 20
Case
[2002] QCA 20
Decision Date

CaseChat Overview and Summary

The applicant, Harunobu Fukusato, sought to have an indictment against him quashed. The indictment was presented by Francis James Walsh, an officer of the Commonwealth Director of Public Prosecutions, and charged Fukusato with offences under the Corporations Law of Queensland and the Criminal Code (Qld). The application to quash the indictment was heard in the Supreme Court of Queensland. The central issues before the court were whether the officer of the Commonwealth Director of Public Prosecutions had the legal authority to present the indictment, and whether the Corporations (Commonwealth Powers) Act 2001 (Qld) was valid given it was not approved by electors as required by s 53 of the Constitution Act 1867 (Qld). The court also needed to determine if sections 6(1)(m) and 17 of the Director of Public Prosecutions Act 1983 (Cth) were valid and if they were supported by the necessary constitutional powers.

The court examined the legislative framework and found that the Corporations (Commonwth Powers) Act 2001 (Qld) did not affect the power of the Queensland Parliament to make laws for the state, and thus the referral of power to the Commonwealth was valid. The court also held that the prosecution was valid as per Graham v Patterson. Regarding the officer's authority, the court found that the Director of Public Prosecutions Act 1984 (Qld) did not affect the operation of s 560(2) of the Criminal Code (Qld), and thus the officer had the authority to present the indictment. The court further held that sections 6(1)(m) and 17 of the Director of Public Prosecutions Act 1983 (Cth) were valid and supported by the necessary constitutional powers under s 51(xxxvii) and s 51(xxxix) of the Constitution.

The court ruled that the officer had the legal authority to present the indictment, and the Corporations (Commonwth Powers) Act 2001 (Qld) was valid. Consequently, the application to quash the indictment was refused. The court's decision was based on the validity of the legislative framework, the referral of power, and the constitutional powers supporting the prosecution.

Orders

Orders of the court

Application to quash the indictment presented in the District Court against Harunobu Fukusato on 18 August 2000 by Francis James Walsh refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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