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R v Rollason & Jenkins; ex parte Attorney-General

 

[2007] QCA 65

Reported at [2008] 1 Qd R 85

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Rollason & Jenkins; ex parte A-G (Qld) [2007] QCA 65

PARTIES:

R
v
ROLLASON, John Leslie
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

R
v
JENKINS, Darren John
(respondent) 
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

FILE NO/S:

CA No 14 of 2007

CA No 15 of 2007

SC No 475 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2007 

JUDGES:

Keane and Holmes JJA and Mackenzie J

Judgment of the Court

ORDER:

The questions referred to the Court are answered as follows:

1. Was the learned judge correct in ruling that the affidavits of Federal Agent Mellor were statements of a witness for the purpose of s 590AH(2)(c)(i)(A) of the Criminal Code?

Yes

2. Did the learned judge apply the correct test to determine whether the affidavits of Federal Agent Mellor were 'relevant to the proceeding' for the purpose of s 590AJ(2)(e) and (f) of the Criminal Code

Yes

CATCHWORDS:

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - where accused persons made application for disclosure of affidavits relied on by prosecution to secure telephone intercept warrants - where trial judge ordered disclosure pursuant to s 590AH(2)(c)(i)(A), s 590AJ(2)(e) and 590AJ(2)(f) of the Criminal Code 1899 (Qld) - whether trial judge proceeded on proper construction of s 590AH(2)(c)(i)(A) and s 590AJ(2)(e) and (f) of the Criminal Code 1899 (Qld)

Acts Interpretation Act 1954 (Qld), s 14A, s 14B

Criminal Code 1899 (Qld), s 590AB(1), s 590AB(2), s 590AH(2)(c)(i)(A),  s 590AJ(2)(e), s 590AJ(2)(f), s 590AQ

Goldsmith v Sandilands (2002) 190 ALR 370, distinguished

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, cited

R v Brown [1998] AC 367, cited

Smith v The Queen (2001) 206 CLR 650, distinguished

COUNSEL:

G R Rice for the Attorney-General

A M Hoare for the respondent in CA No 14 of 2007

D C Shepherd for the respondent in CA No 15 of 2007

SOLICITORS:

Commonwealth Director of Public Prosecutions for the Attorney-General

North Law for the respondent in CA No 14 of 2007

Legal Aid (Queensland) for the respondent in CA No 15 of 2007

  1. THE COURT:  Since the commencement of Ch Div 3 of Ch 62 of the Criminal Code 1899 (Qld),[1] those in charge of the prosecution of an offence have been under a statutory obligation, imposed by s 590AB(1), "to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth".  A particular aspect of this fundamental obligation is the obligation, imposed by s 590AB(2), to give the accused person disclosure of "all evidence the prosecution proposes to rely on in the proceeding" and "all things in the possession of the prosecution … that would tend to help the case for the accused person".  These obligations are given specific effect by a number of further legislative commands directed to the prosecution in Ch Div 3. 
  1. The particular provisions which arise for consideration in these proceedings are
    s 590AH, which is concerned with disclosure which must always be made by the prosecution, and s 590AJ, which deals with disclosure which must be made on request by the accused person.  In this regard:
  1. Section 590AH(2)(c)(i)(A) provides:

"[f]or a relevant proceeding, the prosecution must give the accused person … for each proposed witness for the prosecution – a copy of any statement of the witness in the possession of the prosecution"; and

  1. Section 590AJ(2)(e) and (f) provides:

"[f]or a relevant proceeding, the prosecution must, on request, give the accused person – a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding"; and

"a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding".

  1. Section 590AD defines the term "prosecution" to mean "the person in charge of the prosecution or a person appearing for the prosecution". The term "statement" is defined to mean, inter alia, "a statement signed by the person" or "any other representation of fact, whether in words or otherwise, made by the person".

The proceedings

  1. Mr Rollason and Mr Jenkins have been charged on indictment with offences under the Drugs Misuse Act 1986 (Qld).  The case for the prosecution includes evidence gathered pursuant to telephone intercept warrants issued under either s 45 or s 45A of the Telecommunications (Interception) Act 1979 (Cth).  The warrants in question were issued by a member of the Administrative Appeals Tribunal in reliance upon affidavits of Mr Mellor, an officer of the Australian Federal Police Service.  It is common ground that Mr Mellor will be a witness at the trial of Mr Rollason and Mr Jenkins.
  1. An application was made by Mr Rollason and Mr Jenkins for disclosure of Mr Mellor’s affidavits.  Although nothing turns on it, the matter seems to have been treated below as an application pursuant to s 590AV.[2]  The appropriate procedure seems to be for an accused to apply under s 590AA(2)(ba) for disclosure under Ch Div 3.  If a case for disclosure without any of the restrictions contemplated by s 590AO to s 590AQ or s 590AS is sought and made out, a direction or ruling about disclosure could be made under s 590AA.  If, however, disclosure is to be subject to restrictions contemplated by those sections, s 590AV provides authority to make a "disclosure direction" addressing them, in this case based on s 590AQ.
  1. The context of the applications is provided by the requests made by each of them that the Crown produce:

"[a]ny application and supporting affidavit made pursuant to the Telecommunications (Interception) Act 1979 (the Act) in relation to a warrant be they for interception of any telecommunications, surveillance and/or listening devices relating to the defendant John Leslie Rollason pursuant to section 45 of the Act."

and the Commonwealth DPP's response which advised: 

"… It is not proposed to supply affidavits used in support of applications for electronic surveillance warrants.

     It is not considered that such material is relevant to the proceeding, and in any event, having regard to the content of these documents, disclosure would be contrary to the public interest."[3]

  1. The learned primary judge held that Mr Mellor's affidavits in support of the telephone intercept warrants were required by s 590AH(2)(c)(i)(A) and s 590AJ(2)(e) and (f) to be disclosed as statements of a witness in the possession of the prosecution, and statements relevant to the proceeding on indictment against each of Mr Rollason and Mr Jenkins.  His Honour directed that those in charge of the prosecution disclose to Mr Rollason and Mr Jenkins those parts of Mr Mellor's affidavits of which disclosure was not contrary to the public interest.[4]  Disclosure in conformity with his Honour's order has now been made.
  1. The Attorney-General for the State of Queensland has referred to this Court, pursuant to s 590AA of the Criminal Code, the following points of law:

"1.Was the learned judge correct in ruling that the affidavits of Federal Agent Mellor were statements of a witness for the purpose of s590AH(2)(c)(i)(A) of the Criminal Code?

  1. Did the learned judge apply the correct test to determine whether the affidavits of Federal Agent Mellor were 'relevant to the proceeding' for the purpose of s 590AJ(2)(e) and (f) of the Criminal Code?"
  1. It will be appreciated that it is no part of this Court's function to determine whether his Honour's orders were correctly made. This Court's function is to expound the proper construction of s 590AH(2)(c)(i)(A) and s 590AJ(2)(e) and (f) of the Criminal Code having regard to his Honour's decision.

The decision of the learned primary judge

  1. The kernel of the learned primary judge's reasoning in relation to both provisions is contained in the following passage:[5]

"All that is required for s 590AH(2)(c)(i)(A) to have effect in this case is that there be a statement as defined of agent Mellor in the possession as defined of the prosecution as defined.  The affidavits in question were signed by agent Mellor and so fall within para (a) of the definition of 'statement'.  They also contain representations of fact and so fall within para (c) of the definition.  The original affidavits will be in the registry of the Administrative Appeals Tribunal, but copies are in the possession of the Crown.  No point was taken before me that the documents in question are not in the possession of the prosecution:  see s590AE (Meaning of possession of the prosecution).

     On behalf of the Crown it was argued that, having regard to the context of the disclosure obligation provided for in s 590AB, one should conclude that the reference to 'statement of the witness' in s 590AH(2)(c)(i)(A) should be read as referring to a witness statement of 'actual potential evidential value in the proceeding'.  To construe the requirement otherwise would be to require mandatory disclosure by an investigating police officer not only of 'evidential statements', but of any representation of fact made by him for 'investigative, as opposed to evidential purposes', the argument continued.  It should first be noted that the expression in s 590AH(2)(c)(i)(A) is 'any statement of the witness'.  The argument for the Crown overlooks the width of the requirement, which is simply that the document in question be a copy of any statement of the witness in the possession of the prosecution.  Clearly statements of no bearing whatever upon the case, eg those of a police officer concerning unrelated investigations, will not be caught by the requirement, but there is no constraint of the kind contended for on behalf of the Crown to be found in the plain words of the provision.  It means, in my view, that the prosecution must give an accused person any statement of a witness in its possession.  It may be that a statement given to the accused person in accordance with that obligation has no actual potential evidential value in the proceeding – which is always difficult to assess in any event, but particularly before trial – but that is not a consideration at the time when disclosure is to be made.  The new code of disclosure eliminates the need to consider fine distinctions and necessarily difficult preliminary assessments of the utility of disclosure.

     Section 590 AJ(2)(e) and (f) will apply if the affidavits are relevant to the proceeding and the prosecution does not intend to rely on them at the proceeding.  The affidavits are in my view relevant to the proceeding because they played an important role in the investigation that has resulted in its being instituted.  It cannot be doubted that all the steps taken in bringing the case against the accused are relevant to the proceeding.  Bearing in mind that these disclosure provisions were enacted for the benefit of accused persons for whom the results of the proceedings could be very serious, I see no reason to construe the condition of relevance in a way that restricts the rights of accused persons.

     On behalf of the Crown it was pointed out that the requirement of relevance to the proceeding provided for in s 590AJ(2)(e) and (f) is not defined.  Relevance, it was argued, cannot be established by the mere assertion of a party; some 'more rigorous objective test' must apply, and whether there is a 'legitimate forensic purpose' in requiring the disclosure would be an appropriate test of relevance:  if no legitimate forensic purpose in the disclosure can be articulated it is impossible to see how affidavits could be relevant to the proceeding.  That argument was based upon tests applied in cases concerning the issue of a subpoena duces tecum, eg R v Sergi [1998] 1 Qd R 536 and Palmer v Kizon [1999] WASC 160.  See also Alister v The Queen (1984) 154 CLR 404.  It was argued that no forensic purpose had been identified by either applicant, but that argument, like the argument for the Crown concerning s 590AH(2)(c)(i)(A), overlooks the width of the provision requiring disclosure.  The affidavits, so far as they include statements of fact relevant to the alleged wrongdoing of the applicants or their accomplices, must be regarded as statements or things relevant to the proceeding.  It is not necessary therefore for an accused person to demonstrate a legitimate forensic purpose.  He or she can rely on the words of the section." (emphasis added)

Discussion of the issues

General approach to construction of the Code

  1. The principal thrust of the arguments, ably put by Mr Rice of Counsel, on behalf of the Attorney-General, was that the provisions of Ch Div 3 of Ch 62 were intended as a codification of the common law in relation to the prosecution's obligations in respect of disclosure to an accused person. For that reason, so it was said, the language of the statute should be read down so as not to impose greater obligations upon the prosecution than were imposed by the common law.
  1. The first point to be made about this submission is that it is contrary to authoritative statements of the correct approach to the construction of provisions of the Criminal Code.  For example, in Mellifont v Attorney-General (Qld),[6] Mason CJ, Deane, Dawson, Gaudron and McHugh JJ said:

"The primary difficulty with the applicant's argument is that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous (Stuart v The Queen (1974), 134 CLR 426, at p 437). That ambiguity must appear from the provisions of the statute; in other words, it is not permissible to resort to the antecedent common law in order to create an ambiguity. Nor, for that matter, is it permissible to resort to extrinsic materials, such as the draft Code and Sir Samuel Griffith's explanation of the draft Code, which are referred to in the dissenting judgment of Cooper J in the Court of Criminal Appeal, in order to create such an ambiguity."[7]

  1. To avoid this difficulty, Mr Rice sought to rely upon s 14A and s 14B of the Acts Interpretation Act 1954 (Qld).  In the second reading speech by the then Attorney-General on 13 May 2003, it was said:

"… the bill also sets out a comprehensive codified regime for prosecution disclosure.  Until now there has been no easily referenced code setting out these rules.

     The disclosure regime in the proposed bill ensures a balance between the need to fully inform the defence as to the Crown case (including possible exculpatory evidence); and the need to ensure that the safety of particular individuals, the integrity of exhibits, and the security of the state are not compromised."

The Attorney-General also referred to the Explanatory Notes to the Bill which stated:  "The prosecution disclosure provisions … are a statutory codification of the existing prosecution disclosure obligations."

  1. In our respectful opinion, these extrinsic materials provide no secure basis for the notional amendment of the words actually used by the legislature. The Attorney-General's second reading speech expressly acknowledged that it is the statutory disclosure regime, and not the common law, which is to strike the balance between the interests of the prosecution and of the accused. Furthermore, the Explanatory Notes afford no foundation for the proposition that the codification of the prosecution's disclosure obligations merely clarifies but does not alter the law: the provisions of s 590AO, which impose limits on the disclosure of "sensitive evidence", and the provisions of s 590AQ, which impose limits on disclosure contrary to the public interest, cannot possibly be understood as a mere restatement of the common law. In any event, as will be seen when one turns to a consideration of the particular provisions of the Criminal Code which are to be considered in this case, the Attorney-General's arguments derive little assistance from judicial statements of the common law.  We turn now to discuss the particular provisions in question.

Section 590 AH(2)(c)(i)(A)

  1. The submissions made on behalf of the Attorney-General require that words of limitation should be introduced into s 590AH(2)(c)(i)(A) so that it is understood to refer to a statement "of actual or potential evidential value in the proceeding". In our respectful opinion, there are sound reasons to reject this submission. The first is that the clear words of the Criminal Code should not be read as if they were qualified by other words which the legislature has not chosen to use. 
  1. Secondly, a reading of s 590AH(2)(c)(i)(A) which would be apt to confine its scope to statements tending directly to prove or disprove the material elements of the charge or a relevant defence, would be inconsistent with the overarching concern of Ch Div 3 of Ch 62 of the Criminal Code.  That concern, stated explicitly in s 590AB(2), is to provide for mandatory disclosure of any material that "would tend to help the case for the accused person".  The "case for the accused person" not infrequently consists entirely of a challenge to the credibility of the witnesses for the prosecution.  Sometimes the case for the accused may depend entirely upon the success of a challenge to the admissibility of the evidence upon which the prosecution would seek to rely.  The admissibility of a confession may depend on whether it was made voluntarily.  It is significant, we think, that s 590AB(2) speaks broadly of "things in the possession of the prosecution … that would tend to help the case for the accused person", rather than more narrowly, and technically, of "things that would tend, either to disprove the prosecution case, or to establish a defence". 
  1. This liberal view of the extent of the obligation of the prosecution conforms with the statement by Lord Hope of Craighead, in R v Brown,[8] of the prosecution's obligations under the common law.  His Lordship recognised that material which "may cast doubt on the credibility or reliability" of a witness must be disclosed by the prosecution:[9]  this obligation was seen as a particular manifestation of a broader principle.  As his Lordship said:

"… the great principle is that of open justice.  It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence."

  1. Neither the common law as so stated, nor, more importantly, the language of the statute under consideration, supports the narrow view that s 590AH is concerned only with a statement which tends to prove or disprove a material fact or a fact which tends to establish a material fact. The task for the prosecution in performing its obligations of disclosure under s 590AH(2)(c)(i)(A) is not the mechanical comparison of the statements of witnesses with the elements of the charge or of a potential defence, but the, admittedly more onerous, assessment of whether the prosecution is in the possession of statements which may undermine the case against the accused or assist his or her defence.
  1. We respectfully agree with the learned primary judge that the obligation imposed on the prosecution by s 590AH(2)(c)(i)(A) is not confined in the way for which the Attorney-General contends.
  1. The learned primary judge recognised that a statement having "no bearing whatever upon the case" was not comprehended by s 590AH(2)(c)(i)(A). It must be accepted, as his Honour recognised, that statements by a witness, which have nothing to do with the case, are not caught by s 590AH(2)(c)(i)(A). For example, that provision could not possibly oblige the prosecution to disclose a witness' employment application form.
  1. As we have mentioned, it is not part of this Court's function on this reference by the Attorney-General to come to a conclusion as to whether his Honour took too broad a view of the prosecution's obligation on the facts of this case. It is, we think, sufficient to state that, in our opinion, the obligation cast upon the prosecution by this provision is to be performed in light of the guiding principles stated in s 590AB. This means that, at a practical level, the particular question for assessment by the prosecution in each case is whether the statement is something "that would tend to help the case for the accused person", or is otherwise required in the interests of fairness and establishing the truth. In saying this, we note that one of the issues argued vigorously was whether there is an obligation under s 590AH(2)(c)(i)(A) to disclose, in every case, an affidavit sworn to facilitate obtaining authority for covert evidence gathering. We wish to make it clear that affidavits of the kind in question will not be required to be disclosed under s 590AH(2)(c)(i)(A) if there is nothing in the affidavit that is required to be disclosed in order to give effect to s 590AB. It is for the prosecution to make an assessment in this regard in the first instance, and for the court to determine any dispute that may arise in that regard.

Section 590AJ(2)(e) and (f)

  1. The argument advanced on behalf of the Attorney-General below, and in written submissions in this Court, is that these provisions impliedly require the demonstration by an accused that a statement in the possession of the prosecution is sought for a "legitimate forensic purpose". That argument is distinctly unpersuasive. Once again, this submission depends upon reading the statute as if it contained language which is simply not there. Moreover, there is no hint in the language of these provisions, or the context in which they appear, that the prosecution's statutory obligations as to disclosure are limited by the use which the accused person actually proposes to make of the material required to be disclosed. One cannot discern any legislative intention to cut down the entitlement of an accused person to reserve his or her defence until the case for the prosecution has been presented at trial.
  1. The further argument advanced on behalf of the Attorney-General was that the learned primary judge erred in not concluding that, because a statement of a witness was relevant to investigations carried out with a view to gathering evidence upon which to found the proceeding on indictment, that statement is, ipso facto, not "relevant to the proceeding" once the proceeding has been commenced.  This argument is not persuasive.  The issue is not whether the statement is relevant to another matter, but whether it is relevant to the prosecution in question.  It is perfectly possible, as a matter of language and logic, for it to be relevant to both. 
  1. It was also argued by the Attorney-General that "relevance" for the purposes of these provisions is determined by reference to "the elements of the offence charged and from facts to be led in proof of those elements". The Attorney-General relies upon statements about relevance in cases such as Smith v The Queen[10] and Goldsmith v Sandilands.[11]  These cases were concerned with the concept of relevance in relation to whether evidence sought to be adduced by the prosecution, or by a party, was relevant so as to be admissible to establish a charge, or to establish a cause of action respectively.  It is to be noted that s 590AJ(2)(e) speaks of a "statement of any person relevant to the proceeding", rather than a "statement of any person directly relevant to the issues in the proceeding".  Language of the latter kind might well be apt to confine the prosecution's obligation of disclosure to statements which tended directly to prove or disprove elements of the offence charged (or an available defence);[12] but the language which has been used by the legislature requires only that the statement in question be "relevant to the proceeding". 
  1. It is significant that, in the course of making statutory provision for disclosure for the benefit of an accused person in criminal proceedings, those responsible for the drafting of these measures would have had ready reference to the language used in the law of civil procedure to determine the scope of "relevance" for the purposes of disclosure. Thus, O 35 r 10 of the Supreme Court Rules 1900 (Qld), as amended in 1965, provided for the discovery to another party of the documents in the possession or power of a party "relating to any matters in question in the action"; and r 211 of the Uniform Civil Procedure Rules 1999 (Qld) imposes a duty upon a party to a proceeding to disclose to each other party documents in the first party's possession or under its control which are either "directly relevant to an allegation in issue in the pleadings" or, if there are no pleadings, "directly relevant to a matter in issue in the proceeding".  It is distinctly unlikely that the choice of the broader language used in s 590AJ(2)(e) and (f) was inadvertent.
  1. Section 590AJ(2)(e) and (f) of the Criminal Code serves to ensure that a person who is prosecuted as a result of the obtaining of evidence pursuant to proceedings of which he or she has been unaware will be informed, on request, of the basis upon which he or she has been subjected to the governmental surveillance which has led to the prosecution.  It is hardly a radical innovation in the law that such a person is afforded an opportunity, albeit belatedly and subject to "public interest" limitations, to understand, and possibly dispute in the appropriate forum, the legality of the basis on which he or she has been put in jeopardy.[13]  As Steyn LJ (as his Lordship then was) speaking in the Court of Appeal in R v Brown[14] of the position under the common law, said:  "[I]n our adversarial system, in which the police and prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of his right to a fair trial."
  1. In our respectful opinion, the fundamental problem with the submission for the Attorney-General on this point is that it looks at the question of relevance from the perspective of the prosecutor seeking to prove a case. No narrow, technical or "prosecution-centric" view should be taken of the language which the legislature has used in s 590AJ(2)(e) and (f), bearing in mind the clearly stated overarching legislative intention to ensure that an accused person be provided with "all things in the possession of the prosecution … that would tend to help the case for the accused person". This broad statement of legislative intent confirms that material, which may serve no purpose other than to provide an accused with as full an appreciation of the provenance of the charge which he or she is required to meet as is consistent with the public interest, must be disclosed upon request by the accused.
  1. In our view, a statement will be relevant to the proceeding for the purpose of s 590AJ(2)(e) and (f) if it is material which has led to the obtaining of the evidence on which the prosecution is based.  In such a case, the prosecution must provide the accused with such a statement upon request by the accused.  We are, therefore, of the view that the learned primary judge's approach to this issue was correct.

Conclusion

  1. It may be acknowledged that the provisions in question impose something of a burden on the prosecution. But it is hardly surprising that the legislature would expect the prosecution to bear such a burden. As has been seen, the burden is not a novel one. It is not as if the prosecution itself does not have ready access to the documents: they are documents which have provided the basis for the prosecution. None of the interests of the prosecution identified by the Attorney-General in his second reading speech and referred to at paragraph [14] above, are likely to be adversely affected by giving the provisions in question the liberal meaning suggested above. Finally, it is important to recall that s 590AQ ensures that there need not be disclosure where that would be contrary to the public interest.
  1. The questions referred to the Court should be answered as follows:
  1. The learned judge was correct in rejecting the contention that the affidavits of Federal Agent Mellor could not be statements of a witness for the purposes of s 590AH(2)(c)(i)(A) of the Criminal Code unless they had "actual potential evidential value in the proceeding".  The true limits upon the scope of s 590AH(2)(c)(i)(A) are to be determined by reference to s 590AB of the Criminal Code.  It is unnecessary further to answer this question. 
  1. The learned judge did apply the correct test to determine whether the affidavits of Federal Agent Mellor were "relevant to the proceeding" for the purpose of s 590AJ(2)(e) and (f) of the Criminal Code.

Footnotes

[1] On 5 January 2004.

[2] The Queen v Rollason and Anor, unreported, Helman J, SC No 475 of 2006, 28 November 2006 at [1].

[3] The Queen v Rollason and Anor, unreported, Helman J, SC No 475 of 2006, 28 November 2006 at [5].

[4] See Criminal Code, s 590AQ.

[5] The Queen v Rollason and Anor, unreported, Helman J, SC No 475 of 2006, 28 November 2006 at [14] – [15] and [17] – [18].

[6] (1991) 173 CLR 289 at 309 (citation footnoted in original).

[7] See also Bank of England v Vagliano Brothers [1891] AC 107; R v Martyr [1962] Qd R 398; Ward v R [1972] WAR 36; Stuart v The Queen (1974) 134 CLR 426 at 437.

[8] [1998] AC 367 at 374.

[9] R v Brown [1998] AC 367 at 377.

[10] (2001) 206 CLR 650 at 654 [7].

[11] (2002) 190 ALR 370 at 371 [2], 377-378 [31].

[12] But see per Steyn LJ in R v Brown [1995] 1 Cr App R 191 at 199.

[13] See Murphy v The Queen (1989) 167 CLR 94; Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162; Ousley v The Queen (1997) 192 CLR 69 at 79, 102 – 105, 127 – 128, 144 – 146.

[14] [1995] 1 Cr App R 191 at 198.

Close

Editorial Notes

  • Published Case Name:

    R v Rollason & Jenkins; ex parte A-G (Qld)

  • Shortened Case Name:

    R v Rollason & Jenkins; ex parte Attorney-General

  • Reported Citation:

    [2008] 1 Qd R 85

  • MNC:

    [2007] QCA 65

  • Court:

    QCA

  • Judge(s):

    Keane JA, Holmes JA, Mackenzie J

  • Date:

    09 Mar 2007

Litigation History

Event Citation or File Date Notes
Primary Judgment SC475/06 (No Citation) 28 Nov 2006 Decision giving rise to AG reference; affidavits in support of the telephone intercept warrants were required by s 590AH(2)(c)(i)(A) and s 590AJ(2)(e) and (f) to be disclosed as statements of a witness in the possession of the prosecution, and statements relevant to the proceeding on indictment against each of Mr Rollason and Mr Jenkins: Helman J.
QCA Original Jurisdiction [2007] QCA 65 [2008] 1 Qd R 85 09 Mar 2007 AG reference s 590AA on points of law regarding proper construction of ss 590AH(2)(c)(i)(A) and 590AJ(2)(e) and (f) of the Code Qld; statements of witness given in AAT in support of application for a warrant for telecommunications interception captured by provisions; a statement will be relevant to the proceeding for the purpose of s 590AJ(2)(e) and (f) if it is material which has led to the obtaining of the evidence on which the prosecution is based: Keane and Holmes JJA and Mackenzie J.

Appeal Status

No Status