R v Moti

Case [2009] QSC 293 16 September 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Moti [2009] QSC 293

PARTIES:

THE QUEEN
v
JULIAN RONALD MOTI

FILE NO:

Indictment No 1097 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application to set aside subpoenas

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2009

JUDGE:

Martin J

ORDER:

ORDER:

The subpoenas served by the accused on Justine Braithwaite of the Department of Foreign Affairs and Trade and on the Commissioner of the Australian Federal Police are set aside.

DIRECTION:

          The Director of Public Prosecutions and the Commissioner of the Australian Federal Police give to the accused:

(a)         a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and

(b)         a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.

CATCHWORDS:

PRACTICE – SUBPOENA – SET ASIDE – Where subpoenas were issued to members of DFAT and the AFP– Where subpoenaed material is sought to support the defendant’s application for a stay of proceedings on the ground that his prosecution is an abuse of process – Where subpoenas request a broad range of material - Where persons subpoenaed allege the subpoenas are a fishing expedition – Whether a legitimate forensic purpose has been identified – Whether the defendant has established that it is ‘on the cards’ that the documents will materially assist his case.

PRACTICE – DISCLOSURE – Where defendant seeks disclosure under s590AJ of the Criminal Code – Where disclosure is sought to support the defendant’s application for a stay of proceedings on the ground that his prosecution is an abuse of process – Where respondent alleges that the requirements of disclosure sought are oppressive – Whether the application is a “relevant proceeding” within the meaning of s 590AJ – Whether in 590AE(3) both ss (a) and (b) must be satisfied in order for a thing to be in the possession of the prosecution – Whether the application for disclosure should be made.

Evidence (Protection of Children) Amendment Bill 2003
Explanatory Note, Evidence (Protection of Children) Amendment Bill 2003

Director of Public Prosecutions Act 1983 (Cth) ss 6 and 9
Criminal Code 1899 (Qld), ss 1, 590AA, 590AB, 590AD, 590AE, 590 AH, 590AJ, 590AV, 590AW

Alister v R (1983) 154 CLR 404
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
DPP v Selway (2007) 16 VR 508
Felice v County Court of Victoria [2006] VSC 12
R v Hargraves, Hargraves and Stoten [2008] QSC 267
R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85
Ragg v Magistrates Court of Victoria [2008] VSC 1
Regina v Saleam[1999] NSWCCA 86
Shipley v Masu Financial Management (2008) 68 ACSR 4000

COUNSEL:

D O’Gorman SC and G Del Villar for the recipients of…

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 Moti

Details

AGLC: R v Moti [2009] QSC 293
Case: [2009] QSC 293
Decision Date: 16 September 2009

CaseChat Overview and Summary

The case of R v Moti involved subpoenas issued to Justine Braithwaite of the Department of Foreign Affairs and Trade and the Commissioner of the Australian Federal Police. The subpoenas were issued in support of the defendant's application for a stay of proceedings on the ground that his prosecution is an abuse of process. The subpoenas requested a broad range of material, and those subpoenaed alleged that the subpoenas were a fishing expedition. The defendants argued that the subpoenas did not have a legitimate forensic purpose and that the defendant had not established that it is ‘on the cards’ that the documents would materially assist his case. The court had to decide whether the subpoenas were justified and whether the defendant had established the necessary grounds for a stay of proceedings.

The legal issues in the case were whether the subpoenas had a legitimate forensic purpose and whether the defendant had established that it is ‘on the cards’ that the documents would materially assist his case. The court had to consider whether the application for disclosure under s590AJ of the Criminal Code was a “relevant proceeding” within the meaning of the statute. The court also had to determine whether both ss (a) and (b) of s 590AE(3) must be satisfied in order for a thing to be in the possession of the prosecution.

The court found that the subpoenas were not justified as they were overly broad and had no legitimate forensic purpose. The court held that the defendant had not established that it is ‘on the cards’ that the documents would materially assist his case. The court also found that the application for disclosure was not a “relevant proceeding” within the meaning of the statute, and that both ss (a) and (b) of s 590AE(3) must be satisfied in order for a thing to be in the possession of the prosecution. The court set aside the subpoenas served by the accused and directed the Director of Public Prosecutions and the Commissioner of the Australian Federal Police to give the accused a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding. The court also directed the Director of Public Prosecutions and the Commissioner of the Australian Federal Police to give the accused a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.

In conclusion, the court set aside the subpoenas and directed the Director of Public Prosecutions and the Commissioner of the Australian Federal Police to provide certain documents to the accused. The court held that the subpoenas were not justified, that the defendant had not established the necessary grounds for a stay of proceedings, and that the application for disclosure was not a “relevant proceeding” within the meaning of the statute. The court's decision provides guidance on the requirements for subpoenas and disclosure in criminal proceedings in Australia.

Orders

Orders of the court

ORDER:

The subpoenas served by the accused on Justine Braithwaite of the Department of Foreign Affairs and Trade and on the Commissioner of the Australian Federal Police are set aside.

DIRECTION:

The Director of Public Prosecutions and the Commissioner of the Australian Federal Police give to the accused:

(a) a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and

(b) a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Moti [2009] QSC 293

Most Recent Citation

McEwan v Rains [2023] QCA 135

Cases citing this decision · 4 of 4 shown

McEwan v Rains
[2023] QCA 135 Para 15

…The primary judge referred to R v Moti [2009] QSC 293 at [9] to [11] where Martin J applied the reasoning of Beazley JA in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [59] to [69]. The primary judge noted that the reasoning in Chidgey had been approved by the New South Wales Court of Criminal Appe…
Jones v State of Queensland (Queensland Police Service)
[2019] QIRC 104

…ssion [2014] QCA 265 Mandic v Phillis [2005] FCA 1279 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 R v Moti [2009] QSC 293 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307…
Police v Joseph
[2018] QMC 12 Para 1

…pon the Applicant to establish a prima facie basis for disclosure. This of course is not without difficulty given the secrecy. Martin, J, in R v Moti [2009] QSC 293 at [8] to [10], noted that in any application for disclosure, this common law position is clear in the decisions in Alister v R (1983) 154 CLR 404 an…
Police v Abram
[2011] QMC 22 Para 1

…eaning of subsection (3)(a)(i) of that section. In my approach to the interpretation of subsection (3) I prefer the reasoning of Martin J in R v Moti [2009] QSC 293 to that of Fryberg J in R v Hargraves, Hargraves and Stoten [2008] QSC 267.…

View all 4 citing cases →

Cases cited in this decision · 11 of 11 shown

R v. Hargraves, Hargraves and Stoten
[2008] QSC 267

…v Selway (2007) 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 R v Hargraves, Hargraves and Stoten [2008] QSC 267 R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam [1999] NSWCCA 86 Shipley v Masu Financial Management (2…
Shipley v Masu Financial Management Pty Ltd
[2008] NSWSC 1187

…y-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam [1999] NSWCCA 86 Shipley v Masu Financial Management (2008) 68 ACSR 4000 COUNSEL: D O’Gorman SC and G Del Villar for the recipients of the subpoenas J V Agius QC and C Chowdhury for the Director of Public Prosecutions P Doyle for J R Moti SOLICITORS…
Ragg v Magistrates' Court of Victoria
[2008] VSC 1

…267 R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam [1999] NSWCCA 86 Shipley v Masu Financial Management (2008) 68 ACSR 4000 COUNSEL: D O’Gorman SC and G Del Villar for the recipients of the subpoenas J V Agius QC and C Chowd…
DPP v Selway
[2007] VSC 244

…V, 590AW Alister v R (1983) 154 CLR 404 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 DPP v Selway (2007) 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 R v Hargraves, Hargraves and Stoten [2008] QSC 267 R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Cou…
Re Don
[2006] NSWSC 1125 Para 88

…obinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6].”…
Gardiner v R
[2006] NSWCCA 190

…h Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6].”…
Felice v County Court of Victoria
[2006] VSC 12

…neral (NSW) v Chidgey (2008) 182 A Crim R 536 DPP v Selway (2007) 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 R v Hargraves, Hargraves and Stoten [2008] QSC 267 R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam [199…
R v Saleam
[1999] NSWCCA 86

…Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam [1999] NSWCCA 86 Shipley v Masu Financial Management (2008) 68 ACSR 4000 COUNSEL: D O’Gorman SC and G Del Villar for the recipients of the subpoenas J V Agius QC and C Chowdhury for the Director of Public P…
Ousley v The Queen
[1997] HCA 49

…s been put in jeopardy . (See Murphy v The Queen (1989) 167 CLR 94; Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162; Ousley v The Queen (1997) 192 CLR 69 at 79, 102-105, 127-128, 144-146.) As Steyn LJ (as his Lordship then was) speaking in the Court of appeal in R v Brown ([2995] 1 Cr App R 1991 at 198) of t…
Murphy v The Queen
[1989] HCA 28

…and possibly dispute in the appropriate forum, the legality of the basis on which he or she has been put in jeopardy . (See Murphy v The Queen (1989) 167 CLR 94; Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162; Ousley v The Queen (1997) 192 CLR 69 at 79, 102-105, 127-128, 144-146.) As Steyn LJ (as his Lords…
Alister v the Queen
[1984] HCA 85

…s 6 and 9 Criminal Code 1899 (Qld), ss 1, 590AA, 590AB, 590AD, 590AE, 590 AH, 590AJ, 590AV, 590AW Alister v R (1983) 154 CLR 404 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 DPP v Selway (2007) 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 R v Hargraves, Hargraves and Stoten [2008] QSC 267 R v…

Legislation cited in this decision · 3

Director of Public Prosecutions Act 1983 (Cth)
59, 590AA, 590AB, 590AD, 590AE, 6, 9 7 mentions
Drugs Misuse Act 1986 (Qld)
1 mention
Evidence (Protection of Children) Amendment Act 2003 (Qld)
1 mention

CITATION:	R v Moti [2009] QSC 293
PARTIES:	THE QUEEN v JULIAN RONALD MOTI
FILE NO:	Indictment No 1097 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application to set aside subpoenas
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 September 2009
JUDGE:	Martin J
ORDER:	ORDER: The subpoenas served by the accused on Justine Braithwaite of the Department of Foreign Affairs and Trade and on the Commissioner of the Australian Federal Police are set aside. DIRECTION: The Director of Public Prosecutions and the Commissioner of the Australian Federal Police give to the accused: (a) a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and (b) a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.
CATCHWORDS:	PRACTICE – SUBPOENA – SET ASIDE – Where subpoenas were issued to members of DFAT and the AFP– Where subpoenaed material is sought to support the defendant’s application for a stay of proceedings on the ground that his prosecution is an abuse of process – Where subpoenas request a broad range of material - Where persons subpoenaed allege the subpoenas are a fishing expedition – Whether a legitimate forensic purpose has been identified – Whether the defendant has established that it is ‘on the cards’ that the documents will materially assist his case. PRACTICE – DISCLOSURE – Where defendant seeks disclosure under s590AJ of the Criminal Code – Where disclosure is sought to support the defendant’s application for a stay of proceedings on the ground that his prosecution is an abuse of process – Where respondent alleges that the requirements of disclosure sought are oppressive – Whether the application is a “relevant proceeding” within the meaning of s 590AJ – Whether in 590AE(3) both ss (a) and (b) must be satisfied in order for a thing to be in the possession of the prosecution – Whether the application for disclosure should be made. Evidence (Protection of Children) Amendment Bill 2003 Explanatory Note, Evidence (Protection of Children) Amendment Bill 2003 Director of Public Prosecutions Act 1983 (Cth) ss 6 and 9 Criminal Code 1899 (Qld), ss 1, 590AA, 590AB, 590AD, 590AE, 590 AH, 590AJ, 590AV, 590AW Alister v R (1983) 154 CLR 404 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 DPP v Selway (2007) 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 R v Hargraves, Hargraves and Stoten [2008] QSC 267 R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85 Ragg v Magistrates Court of Victoria [2008] VSC 1 Regina v Saleam[1999] NSWCCA 86 Shipley v Masu Financial Management (2008) 68 ACSR 4000
COUNSEL:	D O’Gorman SC and G Del Villar for the recipients of…