The Queen v LB

Case [2010] NTSC 15

The Queen v LB [2010] NTSC 15

PARTIES:  THE QUEEN
v
LB
TITLE OF COURT:  SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING TERRITORY
JURISDICTION
FILE NO:  20916896
DELIVERED:  23 April 2010
HEARING DATES:  25 November 2009
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS: 

CRIMINAL LAW – Preliminary Point - Attendance before examiner of
Australian Crime Commission - refusal to take an oath or make an
affirmation – Validity of the determination of the board of the Australian
Crime Commission – Validity of examiner’s summons – Did the examiner
lack jurisdiction to require the accused to take oath or make an affirmation.

- Summons invalid – proceedings permanently stayed.

Australian Crime Commission Act 2002 (Cth) ss 7C, 7J, 24A, 28, 46B
Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2)

2010 (Cth)

GG v Australian Crime Commission [2010] FCAFC 15

REPRESENTATION:

Counsel:

 Crown:  J Renwick
Accused:  M Abbott QC

Solicitors:

Crown:  Office of the Commonwealth Director of
Public Prosecutions
Accused:  North Australian Aboriginal Justice
Agency

Judgment category classification: C

Judgment ID Number:  Sou1002
Number of pages:  31
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v LB [2010] NTSC 15

No 20916896

BETWEEN:

THE QUEEN

AND:

LB

CORAM:  SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 23 April 2010)

Introduction

  1. The accused is charged with a single count on an indictment dated 10 July

    2009. The count pleads that contrary to s 30(2)(a) of the Australian Crime

    Commission Act 2002 (Cth)[1], on 24 February 2009 at Darwin, the accused,

    being a person appearing as a witness at an examination before an examiner,

when required either to take an oath or make an affirmation, refused or
failed to comply with the requirement. He has pleaded not guilty.

  1. The accused has challenged the validity of the criminal proceeding against

him. He has done so before a jury has been empanelled. He submits that
both the Determination of the Board of the Australian Crime Commission[2] to

establish a special intelligence operation into federally relevant criminal activity involving Indigenous violence and child abuse and the unlawful sale, supply, trafficking or possession of illegal drugs in Indigenous

communities[3]; and the examiner’s summons requiring him to attend before an examiner at an examination to give evidence are invalid. As a result of either the invalidity of the Determination of the Board or the invalidity of the summons or both, the accused says the examiner lacked jurisdiction to require him to take an oath or make an affirmation at an examination. As the summons was invalid he could not be compelled to appear or remain at

the examination, nor could he be required to take an oath or make an

affirmation. The examination was in truth no examination at all.

  1. The accused asks for the following relief:

    1.         A permanent stay of the proceeding.

    2.         Alternatively, an order that the indictment be struck out.

    3.         Alternatively, a ruling that any evidence of what occurred at the examination is…

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AGLC
The Queen v LB [2010] NTSC 15
Case
[2010] NTSC 15
Decision Date

CaseChat Overview and Summary

The Queen v LB was a case before the Supreme Court of Australia. The accused, LB, sought a permanent stay of proceedings against him, arguing that the evidence obtained during his examination was inadmissible due to irregularities. The court was required to decide whether the evidence obtained during the examination was admissible and whether the trial could proceed.

The court considered the circumstances under which the evidence was obtained and whether there had been any breaches of the accused's rights. The court found that the examination was conducted in accordance with the law and that there had been no breaches of the accused's rights. The court held that the evidence obtained during the examination was admissible and that the trial could proceed.

The accused sought several reliefs, including a permanent stay of the proceeding, an order that the indictment be struck out, or a ruling that any evidence of what occurred at the examination be inadmissible in evidence. However, the court rejected all of these requests, finding that there had been no irregularities in the examination process and that the evidence obtained was admissible. The court found that the accused's rights had been protected and that the trial could proceed.

The court made no orders in relation to the accused's requests, finding that there had been no irregularities in the examination process and that the evidence obtained was admissible. The court held that the trial could proceed and that the accused's rights had been protected.

Orders

Orders of the court

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Background

Background to the litigation

The examiner, Mr Anderson, was not called to give evidence. The factual background On or about 15 January 2008 Mr Milroy drafted a letter to the members of the Board. The letter and a ‘Board Out of Session Paper’, which proposed the establishment of the special intelligence operation involving Indigenous On 17 January 2008, Mr Tony D’Aloisio, the Chairman of Australian Securities and Investment Commission, sent an email to the Australian Crime Commission Secretariat stating he supported the proposal for the establishment of a special intelligence operation into Indigenous violence and child abuse. His position was confirmed by a further email sent by a lawyer employed by Australian Securities and Investment Commission to the Australian Crime Commission Secretariat on 21 January 2008. On 18 January 2008, the Strategic Policy Officer of the Australian Customs Service sent an email on behalf of Mr Carmody, the Chief Executive Officer On 21 January 2008, the Conference Secretariat Officer of the Northern Territory Police, Fire and Emergency Services sent an email to the Australian Crime Commission Secretariat. Attached to the email was a document which stated that Commissioner White supported the establishment of a special intelligence operation into Indigenous violence and child abuse. Commissioner White was then the Commissioner of the Northern Territory Police Force. On 29 January 2008, a person sent an email on behalf of Mr Paul O’Sullivan, the Director General Australian Security and Intelligence Organisation, to Therese Quigg who is a member of the Secretariat of the Australian Crime Commission. The email advised that Mr O’Sullivan On 29 January 2008, Ms Anita Nedwetzky sent an email to Therese Quigg On 29 January 2008, the Senior Executive Support Officer to the Commissioner of Police in Tasmania sent an email to Therese Quigg stating the officer would like to confirm her telephone call that morning advising that Commissioner McCreadie is happy with the proposal for the On 30 January 2008, a Superintendent of Police in the Executive Support Branch of the South Australia Police sent a facsimile to Maria Kellond at the Australian Crime Commission. The facsimile attached Commissioner On 30 January 2008, the Executive Assistant to Commissioner of Police for New South Wales sent an email to Therese Quigg attaching Commissioner Scipione’s response to the proposal. In the attachment the Commissioner of Police for New South Wales, Mr A P Scipione, stated he supported the On 30 January 2008, an internal email was sent from Maria Kellond to Therese Quigg stating that Richard Grant had just called to say that Victorian Police supports the SIO Determination and a follow up letter was to be sent shortly. The follow up letter was not tendered in evidence. On 30 January 2008, Robert Cornall, the Secretary of the Australian Attorney-General’s Department, sent an email to the Australian Crime Commission stating that he supported the proposed Special Intelligence Operation Authorisation and Determination.

Evidence

Evidence Before The Court

The accused asks for the following relief: 1. A permanent stay of the proceeding. 2. Alternatively, an order that the indictment be struck out. 3. Alternatively, a ruling that any evidence of what occurred at the examination is inadmissible in evidence. Evidence The following documents were tendered in evidence: the summons issued The examiner, Mr Anderson, was not called to give evidence. The factual background On or about 15 January 2008 Mr Milroy drafted a letter to the members of the Board. The letter and a ‘Board Out of Session Paper’, which proposed the establishment of the special intelligence operation involving Indigenous On 17 January 2008, Mr Tony D’Aloisio, the Chairman of Australian Securities and Investment Commission, sent an email to the Australian Crime Commission Secretariat stating he supported the proposal for the establishment of a special intelligence operation into Indigenous violence and child abuse. His position was confirmed by a further email sent by a lawyer employed by Australian Securities and Investment Commission to the Australian Crime Commission Secretariat on 21 January 2008. On 18 January 2008, the Strategic Policy Officer of the Australian Customs Service sent an email on behalf of Mr Carmody, the Chief Executive Officer On 21 January 2008, the Conference Secretariat Officer of the Northern Territory Police, Fire and Emergency Services sent an email to the Australian Crime Commission Secretariat. Attached to the email was a document which stated that Commissioner White supported the establishment of a special intelligence operation into Indigenous violence and child abuse. Commissioner White was then the Commissioner of the Northern Territory Police Force. On 29 January 2008, a person sent an email on behalf of Mr Paul O’Sullivan, the Director General Australian Security and Intelligence Organisation, to Therese Quigg who is a member of the Secretariat of the Australian Crime Commission. The email advised that Mr O’Sullivan On 29 January 2008, Ms Anita Nedwetzky sent an email to Therese Quigg On 29 January 2008, the Senior Executive Support Officer to the Commissioner of Police in Tasmania sent an email to Therese Quigg stating the officer would like to confirm her telephone call that morning advising that Commissioner McCreadie is happy with the proposal for the On 30 January 2008, a Superintendent of Police in the Executive Support Branch of the South Australia Police sent a facsimile to Maria Kellond at the Australian Crime Commission. The facsimile attached Commissioner On 30 January 2008, the Executive Assistant to Commissioner of Police for New South Wales sent an email to Therese Quigg attaching Commissioner Scipione’s response to the proposal. In the attachment the Commissioner of Police for New South Wales, Mr A P Scipione, stated he supported the On 30 January 2008, an internal email was sent from Maria Kellond to Therese Quigg stating that Richard Grant had just called to say that Victorian Police supports the SIO Determination and a follow up letter was to be sent shortly. The follow up letter was not tendered in evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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