R v LB

Case [2011] NTCCA 4

R v LB [2011] NTCCA 4

PARTIES:THE QUEEN  

v

LB

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA 18 of 2010 (20916896)

DELIVERED:  11 MARCH 2011

HEARING DATES:  26-27 OCTOBER & 22 DECEMBER 2010

JUDGMENT OF:  MILDREN, KELLY & BARR JJ

APPEAL FROM:  SUPREME COURT OF THE NORTHERN TERRITORY (SOUTHWOOD J)

CATCHWORDS:

CRIMINAL LAW – summons to give evidence before examiner of ACC – collateral challenge to validity in criminal proceedings – defendant charged with refusing to be sworn or affirmed – whether subpoena valid – whether invalidity results in absence of power to require defendant to be sworn or affirmed or leads to discretionary exclusion of evidence – Australian Crime Commission Act 2002 (Cth) s 28, s 30(2)

ADMINISTRATIVE LAW – Australian Crime Commission Act 2002 (Cth) s 28 – requirement that examiner must be satisfied that it is reasonable in all the circumstances to issue summons – power of Court to find examiner had no valid reason to issue summons

EVIDENCE – rule in Jones v Dunkel – circumstances under which adverse inference may be drawn from failure to call a witness

APPEAL – whether trial Judge decided case on basis not argued by parties – duty to afford natural justice – whether reasonable opportunity to be heard afforded to appellant

Australian Crime Commission Act 2002 (Cth), s 4, s 46B, s 4A(2), s 7C, s 7C(1)(d), s 24A, s 28, s 28(1), s 28(1A), s 28(1A), s 28(1A)(c), s 28(2), s 28(4), s 28(5), s 28(8), s 30, s 30(1), s 30(2), s 30(2)(a), s 30(6)

Criminal Code (NT), s 414(1)(e)

Evidence Act (NT), s 26L

Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991- (loose-leaf edition)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; followed

AA v Board of Australian Crime Commission [2010] FCA 553; Australian Crime Commission v LB (2009) 25 NTLR 30; Australian Crime Commission v NTD8 (2009) 177 FCR 263; Bunning v Cross (1978) 141 CLR 54; Ho v Powell (2001) 51 NSWLR 572; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; R v LB (2010) 26 NTLR 209; R v Connell, ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; RPS v The Queen (2000) 199 CLR 620; Selby v Pennings (1995) 19 WAR 520; SS v Australian Crime Commission (2009) 256 ALR 474; Walton v Gardiner (1993) 177 CLR 378; referred to

REPRESENTATION:

Counsel:

Appellant:W Zichy-Woinarski QC with Dr J Renwick

Respondent:  M Abbott QC with G Lewer

Solicitors:

Appellant:Commonwealth Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    A

Judgment ID Number:  Mil 11485

Number of pages:  30

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

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Details
AGLC
R v LB [2011] NTCCA 4
Case
[2011] NTCCA 4
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal proceeding against the respondent, who was charged with refusing to be sworn or affirmed when summoned to give evidence before an examiner of the Australian Crime Commission (ACC). The respondent's refusal was contrary to section 30(2)(a) of the *Australian Crime Commission Act 2002* (Cth). The core of the dispute revolved around the validity of the summons issued to the respondent and whether any alleged invalidity could be raised as a defence in the criminal proceedings. The appeal was brought by the Commonwealth Director of Public Prosecutions to the Supreme Court of the Northern Territory following an order by a single judge permanently staying the indictment against the respondent.

The legal issues before the Court were whether the summons issued to the respondent was valid, and if not, whether its invalidity meant the examiner lacked the power to require the respondent to be sworn or affirmed, or alternatively, whether the evidence of the refusal should be excluded at the discretion of the court. The Court also considered whether the examiner had a valid reason to issue the summons, as required by section 28(1A) of the Act, and whether the trial judge had afforded the appellant natural justice by deciding the case on a basis not fully argued by the parties.

The Court found that the ACC Board was authorised to conduct the intelligence operation and designate it as a "special operation," which in turn empowered an examiner to issue a summons for examination. The Court determined that the respondent's argument that the examiner had no valid reason to issue the summons was not made out. Furthermore, the Court held that section 28(8) of the Act explicitly stated that a failure to comply with certain provisions, including section 28(1A) concerning the recording of reasons, did not affect the validity of the summons. Therefore, any alleged failure to record reasons properly did not invalidate the summons or the examiner's power to require the respondent to be sworn or affirmed.

The appeal was dismissed, meaning the permanent stay of the indictment against the respondent was upheld.

Orders

Orders of the court

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Background

Background to the litigation

This appeal is brought by the Commonwealth Director of Public Prosecutions pursuant to s 414(1)(e) of the Criminal Code (NT) from an order of Southwood J made on Friday 30 April 2010 permanently staying an indictment against the respondent. The respondent was charged with a single count alleging that he was a person appearing as a witness at an examination before an examiner and when required pursuant to s 28 of the Australian Crime Commission Act 2002 (Cth) (“the Act”) either to take an oath or make an affirmation, he refused or failed to comply with the requirement, contrary to s 30(2)(a) of the Act.Background Facts On 3 December 2008, the Board of the Australian Crime Commission authorised the Commission to undertake an intelligence operation, determined to be a “special operation”, to determine whether “federally relevant criminal activity” had been committed, was being committed or might in the future be committed in circumstances where information indicated that: family violence was deeply entrenched in indigenous communities across most states, with women and children the most common victims; there was significant under-reporting of indigenous violence or child abuse by the victims and other persons or entities; alcohol, illegal drug and substance abuse had direct links with indigenous violence and drug abuse occurring in indigenous communities; and the availability of pornographic material had been linked to sexual behaviour being normalised among young children. The Board of the Australian Crime Commission (“the ACC”) has a function under s 7C of the Act amongst other things to authorise in writing the ACC to undertake intelligence operations or to investigate matters relating to “federally relevant criminal activity”. The definition of “federally relevant criminal activity” in s 4 of the Act, when read with the definitions of “State” and “Territory” contained in s 4, and the definition of “federal aspect” in s 4 when read with s 4A(2), produces the result that, notwithstanding that the offences, reference to which were made in the decision of the Board, were all offences against laws of the Northern Territory, the Board was authorised either to undertake an intelligence operation or an investigation and to determine in writing whether such an investigation is a special investigation or such an operation is a special operation.[1] Once the Board of the ACC had authorised the intelligence operation and determined it as a “special operation”, an examiner appointed under s 46B of the Act had the power to conduct an examination of a person for the purposes of that special operation.[2] On 12 February 2009 an examiner, Mr J P Anderson (“the examiner”), issued a summons to the respondent requiring him to appear before the ACC on 24 February 2009 for an examination “to give evidence of federally relevant criminal activity involving indigenous violence and child abuse and the unlawful sale, supply, trafficking or possession of illegal drugs in indigenous communities”.

Evidence

Evidence Before The Court

As at the relevant time, s 28 of the Act relevantly provided as follows:28. Power to summon witnesses and take evidence(1)An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:(a) before the issue of the summons; or(b) at the same time as the issue of the summons; or(c) as soon as practicable after the issue of the summons.(2)A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.(3)A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.(4)The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.(5)An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and(b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(6)In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.(8)A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:(a) subsection (1A) of this section, in so far as that subsection relates to the making of a record;(b) subsection (2) of this section;(c) section 29A, in so far as that section relates to a summons under subsection (1) of this section.

Decision

Reasons for decision

In our opinion, ground three is not made out.Conclusion In our opinion, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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