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[2007] VSC 297
Supreme Court of Victoria
2007-08-23
SMITH J
Original judgment source is linked above.
The application relating to the second examination summons was referred to a Full Court of the Federal Court of Australia to be heard together with the appeal against the first Federal Court judgment.
On 15 February 2006, a Full Federal Court dismissed the appeal from the first Federal Court judgment, and dismissed the second Federal Court application.
As noted above, on 6 March 2006, Brereton attended before an examiner and refused to take an oath or affirmation when required to do so by the examiner.
On the same day, Brereton commenced proceedings in the Federal Court seeking to have the third examination summons set aside. On 5 June 2006, the third Federal Court application was dismissed by consent.
Thus prior to the challenge to the subpoena in the present committal proceedings, Brereton had sought to challenge the validity of each of the examination summonses directed to him. The material sought under the subpoenas in the criminal proceedings was directed to the issue of the validity of the third examination summons. The issue relied upon in the challenge to the validity of the summons in the criminal proceedings had not been raised in any of the Federal Court challenges to the validity of the three examination summonses.
29 Returning to the argument advanced for the ACC, it is in my view a remarkable argument. It assumes that estoppel principles developed in the common law for civil proceedings have an application in criminal proceedings. Counsel was unable to refer me to any authority that supported such an extension of the law. It would be surprising if there were when regard is had to the different nature and purpose of civil and criminal proceedings and the special position of an accused person in a criminal proceedings[11]. Such authority as there is in the area supports the conclusion that it is inappropriate to apply such civil trial doctrines to criminal proceedings[12].
30 I note that arguments were raised about the width of the prohibition order that was sought and its precise meaning but in view of the concession made about pre-conditions to the validity of the summons and the conclusions I have reached on the estoppel arguments, it is unnecessary to consider and rule upon those arguments.
Discretionary considerations - fragmentation of the criminal proceedings
31 For the foregoing reasons, the substantive arguments advanced by the ACC fail. Counsel for Brereton also raised discretionary issues.
32 The challenged decision of the learned Magistrate was an interlocutory decision made at a very early stage of criminal proceedings. Counsel for Brereton submitted that even if there was a prima facie case of error in that decision, the relief sought should be refused on the grounds that this Court should not interfere in the interlocutory processes of the criminal proceeding while that proceeding is pending.[13]
33 In light of the conclusions I have reached on the substantive argument, it is unnecessary to reach a final view on this point. I should record, however, that the argument advanced for Brereton is plainly arguable and I would not want my decision in this case to be treated in any way as a precedent supporting similar challenges to interlocutory decisions in criminal proceedings. I note, however, that the criminal proceedings were not brought by the ACC but by the DPP and that the only way the ACC itself could challenge the decision made in respect of the subpoena appears to have been by bringing the present proceeding. But another significant matter to be weighed in the balance in exercising the discretion would be the reality that the legitimate concerns of the ACC could be addressed in any event by the application of the principles of public interest immunity, as the learned Magistrate recognised and foreshadowed applying.
34 For the foregoing reasons, the proceeding should be dismissed.
I certify that this and the 1917 preceding pages are a true copy of the reasons for Judgment of Smith J of the Supreme Court of Victoria delivered on 23 August 2007.
[2] And so abandoning the relief sought in Order B2, see para 1 above.
[3] R V Seleam (1989) 16 NSW LR 14; DPP v Selway, Ruling no. 2 [2007] VSC 244; Felice v County Court of Victoria & another [2006] VSC 12 at [42]- [50]; R v Mokbel [2005] VSC 410 [45] p.8_; DPP V Selway_ [2007] VSC 244[3]2 [10].
[4] Alister and others v The Queen (1983-1984) 154 CLR404, at 414
[5] Alister v the Queen, above, at 456.
[7] At 362, citing Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
[8] Referring to Schedule 2, Para (e) of the ACC Act; and Harper v Costigan [1983] FCA 303; (1983) 72 FLR 140.
[9] Later he commented that that issue was reflected in s.28 (3) and s.29A of the Act, at 363.
[11] For discussion of those differences, see, for example, Australian Law Reform Commission, Report No 26, Interim, Evidence, chapter 3 and ALRC Report No 38, Evidence, chapter 3.
[12] DPP v Humphrys [1977] AC 1; Rogers v R (1994) 181 CLR 251; Pearce v R (1998) 194 CLR 610; R v Carroll (2002) 213 CLR 635.
[13] Counsel referred to a number of authorities including Sankey v Whitlam (1978) 142 CLR 1; Beljajev v DPP [1995] VicRp 34; [1995] 1 VR 533; Atlas v DPP and others [2001] VSC 2009; Felice v County Court of Victoria and Australian Crime Commission [2006] VSC 12.
Australian Crime Commission
Magistrates' Court of Victoria
22 Counsel submitted that the protection intended to be given by the requirement was to provide an audit trail for those who have a supervisory role to play in relation to the ACC so that thereby the rights of the individual are protected. He referred to the analysis of Finn J. in Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356. In that case, the person being examined under the relevant provisions, having attended and been sworn, then argued through her counsel that only after she was provided with a copy of the reasons for the issue of the summons could the examination proceed before the examiner.[6] The examiner rejected that submission. The person being examined then sought judicial review of that decision of the examiner. Counsel submitted that as a matter of statutory construction, the applicant was entitled to be provided with a copy of the reasons. Finn J. considered the right of the person being examined to the reasons of the examiner for issuing the summons in that context. In the course of his reasons, he stated a number of propositions as background to the construction issue, including:
(2004) 139 FCR 356
(1989) 16 NSW LR 14
(1986) 159 CLR 656
(1983) 72 FLR 140
(1997) 192 CLR 69
(1994) 181 CLR 251
(1998) 194 CLR 610
(2002) 213 CLR 635
(1978) 142 CLR 1