Wallace v Debs - [2009] VSC 355

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 10194 of 2008

DETECTIVE JASON WALLACE	Plaintiff
and
BANDALI DEBS and THE MAGISTRATES’ COURT OF VICTORIA	Defendants

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2009
DATE OF JUDGMENT:	10 August 2009
CASE MAY BE CITED AS:	Detective Jason Wallace v Bandali Debs & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 355

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ADMINISTRATIVE LAW – Judicial review – Construction of “an offence” in s 464B(1)(b) Crimes Act 1958 (Vic) – Statutory presumption against extraterritorial effect – Whether “an offence” must occur under Victoria law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D McArdle QC and Ms S M K Borg	Office of Public Prosecutions
For the First Defendant	Mr G Thomas SC	Victoria Legal Aid

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HIS HONOUR:

In this proceeding Detective Jason Wallace applies for judicial review of an order made by his Honour Mr S Garnett, magistrate, on 13 October 2008. The learned magistrate was considering an application by Detective Wallace for an order under s 464B of the Crimes Act 1958 (Vic) to permit the questioning of Bandali Debs in relation to an offence which, for these proceedings, is accepted to have no connection with Victoria. His Honour declined to make the order on the basis that the proper construction of s 464B(1)(b) required the words "an offence" to be construed as referring to an offence under Victorian law and not to any offence under the laws of any other place, whether another jurisdiction in Australia or elsewhere in the world. In reaching his conclusion the learned magistrate drew from and relied upon the statutory presumption that penal provisions are not to be construed as having extraterritorial effect.

The challenge to the magistrate's decision contended that s 464B was not relevantly a penal provision sufficient to invoke the presumption. In that regard, it was contended that the provision was investigatory rather than penal and quite unlike the penal provisions frequently referred to in application of the statutory presumption.[1] However, in applying such presumptions, it must never be lost sight of the fact that the presumption exists as an aid to determine the meaning of legislation where there is some doubt. In this case whether or not the provision is strictly penal should not distract attention from the primary undertaking of determining the meaning of the words, namely "an offence", which have been used by Parliament in the section. The presumption against the extraterritorial operation of domestic penal statutes may still inform the proper construction of those words.
[1] See, for example, W.F. Craies, Craies on Statute Law (7^th ed, 1971) 528 and W.F. Craies, Craies on Statute Law (11^th ed, 2004) 767‑772.

In my opinion the learned magistrate was correct to conclude that the words "an offence" in s 464B were intended to refer to an offence under Victorian law and not to any offence wherever it may have been committed and…

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 Wallace v Debs

Details

AGLC: Wallace v Debs [2009] VSC 355
Case: [2009] VSC 355
Decision Date: 10 August 2009

CaseChat Overview and Summary

Wallace v Debs was a judicial review case heard in the Court of Appeal of the Supreme Court of Victoria. The central dispute in the case was whether the respondent's conduct, which occurred outside the state of Victoria, could be considered an "offence" under section 464B(1)(b) of the Crimes Act 1958 (Vic). The applicant, Wallace, sought to have the respondent's conviction quashed on the grounds that the offence in question did not occur under Victoria law.

The primary legal issue before the court was the interpretation of the term "an offence" in the context of section 464B(1)(b) of the Crimes Act 1958 (Vic). Specifically, the court had to determine whether the statutory presumption against extraterritorial effect meant that an offence must occur under Victoria law for the provisions of the Act to apply. The court was also required to consider whether the ordinary meaning of the term "an offence" required the offence to be under Victoria law.

In addressing these issues, the court considered the ordinary meaning of "an offence" and the statutory presumption against extraterritorial effect. The court held that the ordinary meaning of "an offence" did not necessarily require the offence to be under Victoria law. However, the statutory presumption against extraterritorial effect meant that the provisions of the Act could not apply to conduct occurring outside Victoria. As a result, the court concluded that the respondent's conduct did not constitute an "offence" under section 464B(1)(b) of the Crimes Act 1958 (Vic). The court quashed the respondent's conviction and ordered that the matter be remitted to the Magistrates’ Court for further consideration.

Orders