Regina v Gergis - [2000] NSWCCA 508

CITATION: Regina v Gergis [2000] NSWCCA 508

FILE NUMBER(S): CCA 60452/00; 60453/00; 60464/00; 60464/00

HEARING DATE(S): 22/11/00

JUDGMENT DATE:
6 December 2000

PARTIES :

Regina v Karim Gergis

JUDGMENT OF: Sully J at 1; Bell J at 2; Whealy J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/1104

LOWER COURT JUDICIAL
OFFICER : Stewart ADCJ; Andrew ADCJ

COUNSEL : D.C. Anderson QC; G. Heathcote - Applicant
T.L. Buddin SC - Respondent

SOLICITORS: Van Houten - Applicant
I. V. Knight - State Crown Solicitor

LEGISLATION CITED: Criminal Appeal Act 1912
Justices Act 1902
Evidence Act 1995

CASES CITED:
R v Matovski (1989) 15 NSWLR 720 at 723
R v Saleam (1989) 16 NSWLR 14;
Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 681 F-G;
Alister v The Queen (1983-84) 154 CLR 404;
Carroll v The Attorney General for NSW (1993) 70 A Crim R 162 at 181-182
Young v Quinn (1985) 4 FCR 483 at 485)

DECISION: Applications for leave to appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

60452/00
60453/00
60464/00

SULLY J
BELL J
WHEALY J

WEDNESDAY 6 December 2000

REGINA V Karim GERGIS

JUDGMENT

1 SULLY J: I agree with Whealy J 2 BELL J: I agree with Whealy J for the reasons given by his Honour. 3 WHEALY J: These are three applications for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912. The applications relate to three District Court decisions. The first was that of Stewart ADCJ on 29 February 2000. His Honour set aside a subpoena which had been issued on behalf of the applicant on 20 November 1999 and which was returnable on 9 December 1999. It was set aside save for ordering limited production of material pursuant to para 1 and 13A of the Schedule to the subpoena. Leave is sought to review his Honour’s decision in relation to paras 1 and 18 of the Schedule. 4 Secondly, Andrew ADCJ made orders on 13 July 2000 in respect to a subpoena which had been issued on 23 December 1999 and returnable for 13 January 2000. His Honour set aside the subpoena save for ordering production of material pursuant to paras 1, 7 and 8 of the Schedule to the subpoena. The present application is confined to a review of his Honour’s decision in relation to para 2 of the Schedule of the subpoena. 5 Thirdly, Andrew ADCJ gave a decision on 13 July 2000 in relation to a subpoena dated 21 February 2000 returnable on 28 February 2000. His Honour set aside this subpoena save for ordering production pursuant to para 1 of the Schedule to the subpoena. The present application seeks leave to review his Honour’s decision in relation to paras 4, 5, 14, 16 and 17 of the Schedule to the subpoena. Further orders were made by his Honour on 21 July 2000 in respect of paras 16 and 17 and these orders are also the subject…

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 Regina v Gergis

Details

AGLC: Regina v Gergis [2000] NSWCCA 508
Case: [2000] NSWCCA 508
Decision Date: 6 December 2000

CaseChat Overview and Summary

Karim Gergis has applied for leave to appeal against three decisions of Acting District Court Judges which set aside subpoenas which he had issued. The subpoenas sought a wide range of police documents and other material in relation to three separate offences with which he has been charged. The Crown had objected to the subpoenas on the basis that no legitimate forensic purpose had been established to justify production of the documents and on the basis that some of the material sought was subject to public interest immunity. The Acting District Court Judges upheld the Crown’s objections and set aside the subpoenas. The applicants sought leave to appeal against those decisions. The Court held that the applicants had failed to establish a legitimate forensic purpose for the production of the documents and that there was no error of principle in the reasons of the Acting District Court Judges. Accordingly, the applications for leave to appeal were dismissed.

Orders