Younan v Callanan - [2009] QSC 241

SUPREME COURT OF QUEENSLAND

CITATION:

Younan & Ors v Callanan & Ors [2009] QSC 241

PARTIES:

PAUL YOUNAN
(first applicant)
JASON KHALIL
(second applicant)
TONI ELBAYEH
(third applicant)
MARIANE KAZZI
(fourth applicant)
v
JOHN DAVID CALLANAN, STEPHEN LAMBRIDES, ROSS BARNETT, BARRY SALMON AND DIANA JOHNSTON AS MEMBERS OF THE CRIME REFERENCE COMMITTEE
(first respondent)
JOHN DAVID CALLANAN, ASSISTANT COMMISSIONER, CRIME AND MISCONDUCT COMMISSION
(second respondent)

FILE NO/S:

5340 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2009

JUDGE:

Dutney J

ORDER:

1. Application is dismissed.

2. The applicants to pay the respondents’ costs of the application to be assessed on the standard basis

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – ERROR OF LAW – Where the applicants seek judicial review of a decision to refer a suspected murder to the Crime and Misconduct Commission – Whether the Committee could have been satisfied that the police investigation ‘had not been effective’ – Whether the Committee could have been satisfied that it was in the public interest to refer the matter

Crime and Misconduct Act 2001 (Qld), s 27, s 28(2), s 28(3), s 29(1)

Accused A & Ors v Callinan & Ors [2009] QSC 12

COUNSEL:

T Carmody SC, with him G Del Villar, for the applicants
G P Long SC for the respondents

SOLICITORS:

Nyman Gibson Stewart for the applicants
D T Murphy Official Solicitor for the respondents

This is an application for a statutory order of review. The decisions the applicants seek to set aside are as follows:

1. The decision of 23 March 2009 of the Crime Reference Committee of the Crime and Misconduct Commission (“CMC”) to refer the murder to the CMC.

2. The decision of 2 April 2009 of the second respondent as delegate of the CMC to authorise the holding of an investigative hearing into the murder.

3. The decision of 2 April 2009 of the second respondent to appoint himself to conduct the investigative hearings.

4. The decision of 3 April 2009 on the second respondent to issue attendance notices on each of the applicants.

On 26 January 2009, a motorist was fatally shot in the stomach on the Gold Coast Highway at Burleigh Heads.

Immediately prior to the shooting the deceased was involved in a “road rage” incident involving a second vehicle described as a small red four door sedan or hatch. The second vehicle contained three persons who were described as being of “Lebanese” extraction.

The shooting is not suspected of being connected with organised crime and is believed to be an isolated incidence of road rage.

Police investigations have not identified the shooter. The Queensland police have, however, received information in the form of criminal intelligence provided in confidence by the New South Wales police force. This intelligence gives rise to suspicions concerning the involvement of persons referred to in the information.

The police do not believe…

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 Younan v Callanan

Details

AGLC: Younan v Callanan [2009] QSC 241
Case: [2009] QSC 241
Decision Date: 21 August 2009

CaseChat Overview and Summary

In this case, the applicants, Younan and Callanan, sought judicial review of a decision made by the Committee to refer a suspected murder to the Crime and Misconduct Commission. The applicants argued that the Committee's decision was flawed on several grounds, including an error of law. The matter was heard by the Supreme Court of Queensland, which had to determine whether the Committee's decision was legally sound and whether the applicants were entitled to the relief they sought.

The primary legal issues that the Court had to address were whether the Committee could have reasonably been satisfied that the police investigation into the suspected murder was ineffective, and whether the Committee could have been satisfied that it was in the public interest to refer the matter. The applicants contended that the Committee had failed to properly consider the evidence and had made a clear error of law in its decision-making process. The respondents, however, argued that the Committee's decision was well-founded and that the applicants had not demonstrated that the decision was legally flawed.

The Court held that the Committee's decision was open to it on the evidence before it, and that the applicants had not demonstrated that the Committee had made an error of law. The Court found that the Committee was entitled to be satisfied that the police investigation was ineffective and that it was in the public interest to refer the matter. The Court also held that the applicants had not shown that the Committee's decision was unreasonable or irrational. Accordingly, the Court dismissed the application and ordered the applicants to pay the respondents' costs of the application on the standard basis.

Orders

Orders of the court

1. Application is dismissed.

2. The applicants to pay the respondents’ costs of the application to be assessed on the standard basis

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.

CITATION:	Younan & Ors v Callanan & Ors [2009] QSC 241
PARTIES:	PAUL YOUNAN (first applicant) JASON KHALIL (second applicant) TONI ELBAYEH (third applicant) MARIANE KAZZI (fourth applicant) v JOHN DAVID CALLANAN, STEPHEN LAMBRIDES, ROSS BARNETT, BARRY SALMON AND DIANA JOHNSTON AS MEMBERS OF THE CRIME REFERENCE COMMITTEE (first respondent) JOHN DAVID CALLANAN, ASSISTANT COMMISSIONER, CRIME AND MISCONDUCT COMMISSION (second respondent)
FILE NO/S:	5340 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2009
JUDGE:	Dutney J
ORDER:	1. Application is dismissed. 2. The applicants to pay the respondents’ costs of the application to be assessed on the standard basis
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – ERROR OF LAW – Where the applicants seek judicial review of a decision to refer a suspected murder to the Crime and Misconduct Commission – Whether the Committee could have been satisfied that the police investigation ‘had not been effective’ – Whether the Committee could have been satisfied that it was in the public interest to refer the matter Crime and Misconduct Act 2001 (Qld), s 27, s 28(2), s 28(3), s 29(1) Accused A & Ors v Callinan & Ors [2009] QSC 12
COUNSEL:	T Carmody SC, with him G Del Villar, for the applicants G P Long SC for the respondents
SOLICITORS:	Nyman Gibson Stewart for the applicants D T Murphy Official Solicitor for the respondents