Abuse of Discretion

A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.

Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

For example, the traditional standard of appellate review for evidence-related questions arising during trial is the "abuse of discretion" standard. Most judicial determinations are made based on evidence introduced at legal proceedings. Evidence may consist of oral testimony, written testimony, videotapes and sound recordings, documentary evidence such as exhibits and business records, and a host of other materials, including voice exemplars, handwriting samples, and blood tests.

Before such materials may be introduced into the record at a legal proceeding, the trial court must determine that they satisfy certain criteria governing the admissibility of evidence. At a minimum, the court must find that the evidence offered is relevant to the legal proceedings. Evidence that bears on a factual or legal issue at stake in a controversy is considered relevant evidence.

The relevancy of evidence is typically measured by its probative value. Evidence is generally deemed Probative if it has a tendency to make the existence of any material fact more or less probable. Evidence that a murder defendant ate spaghetti on the day of the murder might be relevant at trial if spaghetti sauce was found at the murder scene. Otherwise such evidence would probably be deemed irrelevant and could be excluded from trial if opposing counsel made the proper objection.

During many civil and criminal trials, judges rule on hundreds of evidentiary objections lodged by both parties. These rulings are normally snap judgments made in the heat of battle. Courts must make these decisions quickly to keep the proceedings moving on schedule. For this reason, judges are given wide latitude in making evidentiary rulings and will not be over-turned on appeal unless the appellate court finds that the trial judge abused his or her discretion.

For example, in a Negligence case, a state appellate court ruled that the trial court did not abuse its discretion by admitting into evidence a posed accident-scene photograph, even though the photograph depicted a model pedestrian blindly walking into the path of the driver's vehicle with the pedestrian's head pointed straight ahead as if she was totally oblivious to the vehicle and other traffic. Gorman v. Hunt, 19 S.W.3d 662 (Ky. 2000). In upholding the trial court's decision to admit the evidence, the appellate court observed that the photograph was only used to show the pedestrian's position relative to the vehicle at the time of impact and not to blame the pedestrian for being negligent. The appellate court also noted that the lawyer objecting to the photograph's admissibility was free to remind the jury of its limited relevance during cross-examination and closing arguments.

An appellate court would find that a trial court abused its discretion, however, if it admitted into evidence a photograph without proof that it was authentic. Apter v. Ross, 781 N.E.2d 744 (Ind.App. 2003). A photograph's authenticity may be established by a witness's personal observations that the photograph accurately depicts what it purports to depict at the time the photograph was taken. Ordinarily the photographer who took the picture is in the best position to provide such testimony.

Further readings

Cohen, Ruth Bryna. 2000."Superior Court Affirms Non Pros for Failure to Subpoena Own Witness; Trial Court Did not Abuse Discretion in Its Application of Civil Procedure Rule 216." Pennsylvania Law Weekly (October 9).

Hamblett, Mark. 2001. "Circuit Panel Issues Recusal Guidelines; Says Rakoff Acted Properly In Not Stepping Down." New York Law Journal (February 26).

Riccardi, Michael A. 2002."Polygraph Evidence OK to Prove Probable Cause, Circuit Judges Say; No Abuse of Discretion in Relying on 'Lie Detector' for Limited Purpose." Pennsylvania Law Weekly (April 29).

Cross-references

Appeal; Bad Faith; Error; Evidence; Precedent; Probative; Relevancy.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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Reply to the Australian Government  Solicitors



To
David Nguyen
Australian Government Solicitors
 MLC Cente
Martin Place 2000

Dear Mr Nguyen
I respond to your letter dated 17th December 2013 where you    intend to set my subpoena aside once again.
As I believe you must be of some intelligence   I would recommend  that you read the statements provided to the Australian Federal Police by Veronique Ingram , Adam Toma, Mathew Osborne Mark Findlay and Cheryl Cullen  and you  may come to your own ( even if it is limited ) conclusion  why AFSA wants this subpoena set aside.  Therefore it is the intention of the Australian Government Solicitor  and AFSA to protect  systemic corrupt conduct and I understand you are again asking a court and magistrate to comply with your request.

You also may feel obliged to inform your "ÇLIENTS'' of  the consequences of perjury   and   the requirements of the Australian Public Service Code of conduct..........................
and  may also feel obliged to inform Veronique Ingram  of  her obligation  as a Government Agency  Head and the responsibility this carries.
You are also aware I am not obligated in informing you how  I intend to use the documents I have subpoenaed to use in my defence however you are clearly  aware  it relates to  the systemic failure of  senior Management at  AFSA.
Thank You
Fiona Brown

Commonwealth Ombudsman tries to use  confidentiality to protect systemic corrupt conduct in Federal Government Department/ Veronique Ingram AFSA / Colin Neave/ Adam Toma/ Complaints

Clearly the Commonwealth Ombudsman is panicked by a subpoena served on them last Tuesday.

 They have now invited me to  to  withdraw the subpoena or  otherwise not call upon it and to please put this in writing.

As I have been saying all along and according to the Commonwealth Ombudsman  statistics this department headed by shonky Colin Neave who as banking industry Ombudsman fucked over 80% of  complaints about the Banking industry. Before him  fat and ugly  Alison Larkins  was acting in this role after Alan Asher " ripped his skirt off and resigned. Larkins is now working for immigration.

So the ombudsman  want me to withdraw my subpoena and  clearly I will say to the "Come Kiss My ARSE" and see you in court!!!!!! >>>>>>>>>>>>>>

The Ombudsman Act   Section 35(8) cannot be used  to fail to respond to subpoena's.
Clearly  this shows how desperate the  Commonwealth Ombudsman  is when being exposed to atrocious maladministration. 

Commonwealth Consolidated Acts

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OMBUDSMAN ACT 1976 - SECT 35

Officers to observe confidentiality

             (1)  In this section, officer means:

                     (a)  the Ombudsman;

                     (b)  a Deputy Ombudsman;

                     (c)  a person who is a member of the staff referred to in subsection 31(1); or

                     (d)  a person, not being a person referred to in paragraph (b) or (c), to whom the Ombudsman has delegated any of his or her powers under section 34 or who is an authorized person; or

                     (e)  a person who is made available to the Ombudsman as mentioned in subsection 8(12).

             (2)  Subject to this section, an officer shall not, either directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by him or her by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act or under Division 7 of Part V of the Australian Federal Police Act 1979 , including information furnished by the Ombudsman of a State or information disclosed to or obtained by the Commonwealth Ombudsman in the exercise of a power of the Ombudsman of a State delegated to him or her as provided by subsection 34(7).

Penalty:  $500.

             (3)  Subsection (2) does not prevent an officer:

                     (a)  from making a record of, or divulging or communicating to any person, information acquired by him or her in the performance of his or her duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman; or

                     (b)  from divulging or communicating information to a person:

                              (i)  if the information was given by an officer of a Department or prescribed authority in the performance of his or her duties as such an officer--with the consent of the principal officer of the Department or authority or of the responsible Minister; or

                            (ia)  if the information was given by a person who is, or is an employee of, a Commonwealth service provider of a Department or prescribed authority under a contract--with the consent of the principal officer of the Department or prescribed authority or of the responsible Minister; or

                             (ii)  if the information was given by a person otherwise than as set out in subparagraph (i) or (ia)--with the consent of the person who gave the information.

             (4)  Subject to subsection (5), subsection (2) does not prevent the Ombudsman or a Deputy Ombudsman from disclosing, in a report made under this Act, such matters as, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.

             (5)  Where the Attorney-General furnishes to the Ombudsman a certificate in writing certifying that:

                     (a)  the disclosure of information or documents concerning a specified matter or matters included in a specified class of matters; or

                     (b)  the disclosure of a specified document or of documents included in a specified class of documents;

would, for a reason specified in the certificate, being a reason referred to in paragraph 9(3)(a), (b), (c), (d) or (e), be contrary to the public interest, an officer shall not, either directly or indirectly and either while he or she is, or after he or she ceases to be, an officer, except as provided in subsection (6):

                     (c)  divulge or communicate to any person any information acquired by him or her under the provisions of this Act concerning such a matter or such a document;

                     (d)  divulge or communicate any of the contents of such a document to any person; or

                     (e)  furnish such a document, or a copy of, or an extract from, such a document, to any person.

Penalty:  Imprisonment for 2 years.

             (6)  Subsection (5) does not prevent an officer, in the performance of his or her duties as an officer:

                     (a)  from divulging or communicating information referred to in that subsection to another officer;

                     (b)  from furnishing any of the contents of, a copy of or an extract from a document referred to in that subsection to another officer; or

                     (c)  from returning such a document that has been produced to him or her to the person lawfully entitled to the custody of the document.

          (6A)  Subsection (2) does not prevent the Ombudsman, or an officer acting on behalf of the Ombudsman, from giving information or documents under paragraph 6(4D)(e) or paragraph 6(18)(d).

             (7)  Subject to subsection (7A), where the Ombudsman proposes, for purposes connected with the exercise of his or her powers or performance of his or her functions, to furnish information, or to send a document, or a copy of, or extract from, a document, to the Ombudsman of a State, the Ombudsman shall satisfy himself or herself that a law of the State makes provision corresponding to the provision made by this section with respect to the confidentiality of information acquired by the Ombudsman of the State.

          (7A)  Subsection (7) does not apply in relation to any information or document obtained by the Ombudsman in the exercise of a power of the Ombudsman of the State that the Ombudsman was authorized to exercise in pursuance of subsection 34(7).

             (8)  A person who is or has been an officer is not compellable, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive and examine evidence, to disclose any information acquired by him or her by reason of his or her being or having been an officer, being information that was disclosed or obtained under the provisions of this Act or under Division 7 of Part V of the Australian Federal Police Act 1979 .

Tasmanian Integrity Commission CEO Diane Merryfull

This skanky Bitch is a shonk ! Merryfull was  Deputy  Commonwealth Ombudsman where she fucked over complaints and protected systemic corrupt conduct in Government departments

Chief Executive Officer

The CEO is responsible to the Board for the general administration, management and operations of the Integrity Commission.

Diane Merryfull A former Senior Assistant Ombudsman in the Office of the Commonwealth Ombudsman, Diane Merryfull took up her appointment as Integrity Commission CEO in August 2012. She holds a Bachelor of Arts and a Bachelor of Laws from the University of New South Wales and has wide-ranging experience in senior management roles in the Commonwealth and ACT governments. Ms Merryfull has led teams covering law enforcement agencies such as the Australian Federal Police and the Australian Crime Commission, Defence, the Australian Tax Office and Australia Post, dealing with complaints, own motion investigations and compliance inspections. She was also seconded to the Office of the Inspector General of Intelligence and Security to lead a complex and sensitive security inquiry in 2011.

Tasmanian Integrity Commission CEO Diane Merryfull

No integrity here from this shonky bitch  Merryfull worked for the Commonwealth Ombudsman where she protected Fraud and systemic corrupt conduct

.

Anyone wanting to testify against Veronique Ingram/ AFSA

If you have had difficulties with shonky Veronique Ingram Inspector General in Bankruptcy and  the systemic corrupt conduct this bitch is protecting at  the Australian Financial Security Authority or the old ITSA come and testify against  against her at the Downing Centre in Sydney...
Email me fionabrown01@hotmail.com if interested*****************

Browne V Dunn/

The Rule in Browne v Dunn

The High Court has emphasised the need for care on the part of a trial judge in directing a jury to attribute significance to the failure of counsel to put an aspect of his client’s case to a witness on the other side, especially where it is otherwise apparent that the proposition which is not put is in issue.

1

The defendant gave evidence that [the complainant’s injury was the result of a fall rather than having been inflicted by him]. That proposition was not put to the complainant. In other words, she was not asked to comment on whether that was the case. The result is that she has not had the opportunity to respond to the suggestion [she injured herself in a fall], and you do not have the benefit of the evidence she might have given had she been asked.

Where further direction warranted.^2:

It is a rule of practice in both civil and criminal trials that if one party is going to assert a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given, by the cross-examiner, the opportunity to do so. That has not occurred. The failure to ask the complainant questions about [the fall] which the defendant says occurred may be used by you to draw an inference that he did not give that account of events to his counsel. That in turn may have a bearing on whether you accept what the defendant said on the point. However, before you draw such an

1

MJW v The Queen (2005) 80 ALR 329; R v MAP [2006] QCA 220.

2

Foley [2000] 1 Qd R 290 suggests that the basic direction as to the absence of evidence, and the direction as to inferences, are to be given only in exceptional cases: Peter John Burns (1999) 107 A Crim R 330, a recent application of Foley. Benchbook – 32 – Rule in Browne v Dunn No 32.2

inference you should consider other possible explanations for the failure of counsel to put questions about [a fall] to the complainant.

3

Browne v Dunn (1893) 6 R 67, 70, 76. See also Cross, On Evidence, Aust ed. [17435] ff.

4

Birks (1990) 19 NSWLR 677; Manunta (1990) 54 SASR 17 .Caution should also be exercised in deciding whether to give a direction where the party who called the witness who was not cross-examined does not complain: McDowell [1997] 1 VR 473.

5

Walter Berkley Hart (1932) 23 Cr App R 202 shows the prosecution stands to be embarrassed by the rule in Browne v Dunn as much as the defendant. At 206, the Court of Appeal commented on a "remarkable feature of the case", that three defence alibi witnesses were not cross-examined.

6 In particular, the witness treated unfairly may be recalled and given the opportunity to make appropriate comment. In

Payless Super Barn (NSW) Pty Ltd v Ogara (1990) 19 NSWLR 551, 556 Clarke JA said that the trial judge "may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined."

In preparation for trial, usually counsel would be given his client’s instructions: that is, what his client has to say about the matter in written form taken by his solicitor, or in oral form by what his client says when they meet, or both. Counsel then uses that information from his client to ask questions of the opposing side’s witnesses. However, communication between individuals is seldom perfect; misunderstandings may occur. The solicitor or the barrister may miss something of what their client is telling them. In the pressures of a trial, counsel may simply forget to put questions on an important matter. You should consider whether there are other reasonable explanations for the failure to ask the complainant [whether there was such a fall]. You should not draw any inference adverse to the defendant’s credibility unless there is no other reasonable explanation for that failure.

The rule concerns the failure of a cross-examiner to challenge the evidence of a witness on some point, followed by the attempted making of assertions or calling of evidence to show that the witness should not be believed.
3 Considerable caution is required in applying it in criminal trials, since there may be any number of reasons for oversight, including counsel’s error.4 The rule applies against the prosecution.5 Rebuttal evidence may be permitted.6

 Complaints about AFSA/ ITSA/ Veronique Ingram / Matthew Osborne/ Mark Findlay
If you have  had problems with ITSA / AFSA and would like to have the matter heard before a magistrate in a court of Law please contact me
fionabrown01@hotmail.com
and have your say in court.
This matter is to expose systemic corrupt conduct and corruption!!!!
Particularly if you   have had dealings with any of the following.....
Veronique Ingram, shonkey Inspector General in Bankruptcy
Adam Toma EX corrupt National Enforcement Manager
Matthew Osborne principal Legal Officer providing corrupt legal Advice to Trustees
Mark Findlay 
Gavin McCosker
Cheryl Cullen
Florence Choo 
Guilia Inga
Also anyone who has experience difficulty with Tibor Karolyi who originally worked for ITSA/ AFSA and now works for  de Vries Tayeh

The Heiner Affair/ whistle-blower

Posted by: Gina Baker | 5 December, 2013 - 12:23 PM

4BC Mornings: Kevin Lindeberg is an ex Trade Union official. Twenty threre years ago he was involved in calling to account  members of the former Goss Government over the illegal shredding of documents relating to child abuse.
He joins Greg Cary to discuss the case then and now. Kevin is not satified that justice has been done and calls for a parliamentary Commission of Inquiry.

The Heiner Affair is the running sore of the Queensland justice system, - It is a chronic "cover up" having the dimensions of Nixon's "Watergate."
The ALP being a party top heavy with lawyers and barristers is totally aware of how Goss and Beattie have misrepresented sect129 of the Criminal code when it suits them.
Are ALL people equal before the law, - or are some people more equal than others???
It is way past time that the Augean Stables of Heiner were cleansed.
Les T. Kelly, Launceston, Tas.

Les T. Kelly Friday 6 December, 2013 - 9:36 AM 

WHISTLEBLOWER KEVIN LINDEBERG’S 8 AUGUST 2013 COMMENTARY RE POST-CARMODY INQUIRY’S 1 JULY 2013 FINDING OF PRIMA FACIE BREACH OF SECTION 129 OF THE CRIMINAL CODE RE SHREDDING OF THE HEINER INQUIRY DOCUMENTS AND TAPES

Whistleblower Kevin Lindeberg – Former public sector trade union organiser

Q: ARE YOU SAYING THAT COMMISSIONER CARMODY’S NARROW DEFINITION OF ‘GOVERNMENT’ EVENTUALLY CAUGHT UP WITH HIM IN TERMS OF HIS FINDING OF A PRIMA FACIE CRIME BY THE LAW NOT BEING ABLE TO BE FULLY APPLIED?
KL: That’s correct. He said at the Recusal Hearing that if he defined the term “government” to mean “whole of government”, that is, departments and statutory authorities, then he would have to stand aside because it would logically mean that he’d have to investigate himself when he was the Queensland Crime Commissioner in 2001 when I saw him about the Harding Incident. He accepted that the law does not permit a party to an allegation to investigate himself.
In other words, after setting the parameters, he couldn’t apply the full scope of section 7 to the prima face shredding crime without breaching his own narrow definition of “government” to just mean “the political executive” because once the floodgates opened, it flooded everywhere and everything.
The Rofe QC Audit, to all intents and purposes, is the systemic cover-up flooding roadmap. Full commentary and interview here >>>>>

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6  MAY  2013 - A  DAY  TO  REMEMBER

Commissioner Tim Carmody

Some days are just like any other but some may be pivotal in the lives of individuals, for particular issues or nations because of what transpires. This can be judged either instantaneously, prospectively or retrospectively.
On 6 May 2013, in Court 17 of the Brisbane Magistrates Court Building, never before heard arguments as to whether an entire Cabinet may be in serious breach of the Criminal Code were live-streamed to the world on the internet.  Specifically, they addressed the extraordinary legal question as to whether the 5 March 1990 order by the Queensland Cabinet to destroy the Heiner Inquiry documents and tapes to, inter alia, reduce the risk of legal action may have been illegal.
Despite it being nearly a quarter of a century since this shredding order, its legal consequences remain alive because no statute of limitations applies.
Presiding over the arguments was Commissioner Tim Carmody SC, head of the Child Protection Commission of Inquiry. Full commentary here >>>>>

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2012 SPECIAL COMMENTARY BY WHISTLEBLOWER KEVIN LINDEBERG

Whistleblower Kevin Lindeberg

Over a long period this webpage has independently drawn together all material available on the public record which goes to making up what is now commonly known across Australia and around the world as “the Heiner Affair.”  The whistleblower, Kevin Lindeberg, is not responsible for its content although it contains most of what he has written about his public interest disclosures. He has never directly made a comment on this webpage.

However, due to recent dramatic events, he was approached with a series of relevant questions, and his response is now published here.>>>>> MOVING TOWARDS THE ENDGAME

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Witness confirms pack rape of girl to Heiner Inquiry

John Oxley Youth Detention Centre. Picture: Philip Norrish

Today at the Carmody Inquiry, the Rubicon on the Heiner Affair was irretrievable crossed.
A highly credible witness under oath, Mrs Irene Parfitt, former Youth Worker at the John Oxley Youth Detention Centre, confirmed the contents of her police statement that she told Mr Heiner about the pack rape of Annette Harding when she gave evidence to him in Brisbane Children's Court at North Quay.
She was, in effect, a whistleblower. She would not tolerate silence any longer over a burning issue at the Centre for many staff, and she believed the Heiner Inquiry was the place to make her public interest disclosure.  The assault was a matter which greatly disturbed her. Notwithstanding some time difficulties expected after the passage of close to 23 years, she clearly recalled telling Mr Heiner about the sexual assault of Ms Harding, a 14-year-old indigenous child while in the care of the State.
Full commentary here >>>>>

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Should Commissioner Carmody Have Recused Himself from the QCPCI?

Alleged Prima Facie Criminal Count 57 of the Rofe Audit.

Commissioner Tim Carmody

Section 87 of the Criminal Code - Official Corruption in regard to the conduct of certain officials of the Queensland Crime Commission in respect of their handling of the allegations by one Kevin Lindeberg and related matters at certain times-
That on divers dates between the thirteenth day of December 2001 and the thirty first day of December 2001, at Brisbane in the state of Queensland, one Timothy Carmody, to the extent of his involvement, being a holder of office in the Queensland Crime Commission, pursuant to the Crime Commission Act 1997, at material times, did corruptly confer an advantage on another in respect the handling of allegations by one Kevin Lindeberg by failing to act honestly, impartially and in the public interest.
You be the judge full account of Count 57 of the Rofe Audit here >>>>>

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Heiner Affair News Articles

Print Media News news articles and reports >>>>>

Additional Heiner Affair Coverage

17/02/2011 Kevin Lindeberg Statement of Concern suggests fraud

22/06/2010 Statement of Concern II calls on Premier Bligh for inquiry into Heiner Affair.

22/06/2010 ASA and RMAA joint media release

Queensland Parliamentry Crime and Misconduct Committee

• REVIEW INTO THE EFFECTIVENESS OF VICTORIA’S INTEGRITY AND ANTI-CORRUPTION SYSTEM

• Where best practice recordkeeping ends corruption begins:THE HEINER AFFAIR Information and Records Management Annual Easter 2010

• Kevin Lindeberg writes to the Archivists Association re: The PCMC ruling

• Qld Parliamentary Crime & Misconduct Committee

• Citizens letter to PCMC Chairman Paul Hoolihan seeking clarification of the Criminal Code.

• Queensland loophole 'totally and utterly wrong': WA watchdog chair

• Who's watching corruption at anti-corruption watchdogs?

Other heiner affair commentary.

• Lindeberg Address to Australians for Constitutional Monarchy 04/03/2012

• Lindeberg Address to Australians for Constitutional Monarchy 21/02/2010

• Submission to Tasmanian Parliament 18th August 2008

• Tony Abbott MP. House of Representatives 25th June 2008 Hansard

• Senator Barnaby Joyce: media release on pack rape 12/12/2007

• Lindeberg Address to NSW Parliament Theatre 9th October 2007

• Judges' Statement of Concern August 2007

• Heiner In Tasmanian Parliament

• Heiner In Australian Senate 19th September 2007

• Institute of management consultants media release

• Whistleblowers Action Group media release

• Whistleblowers Australia Press release 17 October 2007

Downloads

MP3/Video Interviews

Radio 4BC

• Greg Cary talks to Kevin Lindeberg Podcast

Radio 4BC 01/10/2009

• Michael Smith interviews Judge Barry O'Keefe on the Heiner Affair

Radio 4BC 09/07/2010

• Michael Smith talks with Lawrence Springborg about the hush money paid to a rape victim.

Radio 2GB 30/09/2009

• Alan Jones speaks to Kevin Lindeberg about the depth of corruption in the Heiner Affair.

Radio 2GB 29/09/2009

• Alan Jones interviews Judge & ICAC Commissioner Barry O'Keefe on the Heiner Affair and the rule of law.

Radio 2GB 24/06/2009

• Alan Jones interviews Kevin Lindeberg and discusses the ongoing criminality and cover up of the affair.

Radio 2GB 23/06/2009 Video

• Alan Jones comments on Ute gate and Kevin Rudd's involvement in the Heiner Affair.

ABC Radio Richard Fidler Conversation Hour 17/03/2009

• Colin Dillon, former QPS Inspector and the famous Fitzgerald Inquiry whistleblower.

Brisbane radio 4BC 20/03/2009

• Michael Smith talks to Piers Akerman about Col Dillon's revelations

Alan Jones radio interview with Piers Akerman.

• Justice denied to Alice and Lindeberg

Alan Jones radio interview with Peter Beattie

• Peter Beattie in denial to the end

Alan Jones radio interview with former QLD union official Kevin Lindeberg

• Kevin Rudd Chief of Staff of former Premier Wayne Goss

Download PDF Documents

• The Lindeberg Petition

• The Lindeberg Grievance

• Morris/Howard Conclusions

• Morris/Howard Recommendations

• Ensby. Application against conviction

• PUBLIC RECORDS BILL 2001 (Qld) The Shredding of the Heiner Inquiry Documents and Related Matters

• Transcript ABC Radio Steve Austin interview with Michael former employee of John Oxley Youth Detention Centre

Crime in the Community

• Submissions; Grundy 1, Grundy 2, Grundy 3, Lindeberg, O'Neill, Heiner, MacAdam, Nelson,

• Report

• Motives for shredding.

• Government response June 2007

• ABC Radio Austin - MacAdam Interview

Forde Commission of Inquiry

• Forde Inquiry Report

• Submission (Not accepted outside terms of reference).

• Letters to Kate Holmes Counsel Assisting from Mr Lindeberg

• Calls for commission into Forde Inquiry

Inquiry into Harmonising Legal Systems

• Lindeberg Submission

• Lindeberg Supplementary

Tasmanian Parliament Joint Select Committee on Ethical Conduct

• Lindeberg Submission

• Brisbane Sitting: Lindeberg Submission NEW

Standing Committee Legal & Constitutional Affairs

• Whistleblower Protection: Lindeberg Submission August 2008

Independent Monthly

• Download Independent Monthly Articles

What is needed to obtain a search Warrant

What is needed to obtain a search warrantLegislation

For the most part, legislative instruments do make an allowance for the issuing of search warrants when required, however, the majority of jurisdictions in Australia have specific laws dealing with the issuing of search warrants, and alternatively, legislation revolving around drug offences also have sections addressing how a search warrant is to be obtained.
Using a legislative example, we can look to s 465(1) of the Crimes Act of Victoria as our basis, regarding the issuing of search warrants:
“(1) Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place-
      (a)  anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
      (b)  anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
      (c)  anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant-
may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law.”

What are some of the formal requirements in issuing a search warrant?

One of the interesting elements we should highlight in regards to s 465(1) in the Crimes Act of Victoria, is that the issuing justice must believe on reasonable grounds that a search warrant, is well, warranted.
The courts have recognised the sanctity of a person’s property and the decision to issue a search warrant should not be taken lightly, however, it also must be balanced with the relevance to the issue and in Crowley v Murphy, Lockhart J in the Federal Court said:
“This does not mean that the Justice must be satisfied that the things to be searched for will necessarily afford evidence sufficient to result in a conviction; but simply whether they will be relevant in some way to the issue, if found. He is not to decide the case at the time it is sought to issue the warrant; but the Justice must remember that he is exercising wide powers ex parte, and must take into account the rights of the citizen who is not before him in a proceeding that cuts across the ancient principle that a person's home is inviolable. It is a power to be exercised with great care and circumspection. The warrant is not to be lightly granted.”
Because a person’s property rights are sacrosanct, when a justice makes the decision to issue a search warrant they are expected to comply with the legal and procedural formalities or the warrant may be invalid, such as the case in R v Macleod, in which Slicer J of the Tasmanian Supreme Court stated, that the trial judge erred in applying the wrong test: which was to be satisfied with the material at hand that would give rise to reasonable grounds for suspicion. It’s not enough that the issuing justice is satisfied, that the person seeking a search warrant is satisfied.

The offence must be fairly stated in the warrant

The recurring theme of this article is the issuing of a warrant must be done on reasonable grounds because a person’s home and property should be free from intrusion. Because of the high regard in which a person’s property rights are held, a search warrant must contain sufficient particulars so an officer, as well as a citizen, is able to consider whether particular things have relevance. In Beneficial Finance v Commissioner of Australian Federal Police, Burchett J in the Federal Court of Australia said:
“The purpose of the statement of the offence in the warrant is not to define the issues for trial; but to set bounds to the area of search which the execution of the warrant will involve, as part of an investigation into a suspected crime. The appropriate contrast is not with the sort of error which might vitiate an indictment, but with the failure to focus the statutory suspicion and belief upon any particular crime, with the result that a condition of the issue of warrant is not fulfilled, and it purports to be a general warrant of the kind the law decisively rejected in the 18th century. There should be no going back on that rejection, which is an essential bulwark of respect for the integrity and liberties of the individual in a free society, but what the rule requires is identification (and so limitation) of an area of search by reference to a suspected offence, not the formulation of a pleading before the offence is capable of prosecution.”

What if police find something relating to another crime when executing a warrant?

In R v Applebee, Higgins J stated, that when the police are conducting a search it must be confined, “…in kind and scope to that which is necessary to find the “things” for which the search is authorised.” His Honour came to the conclusion that the search and seizure beyond finding the necessary and authorised “things”, was not lawful in that particular instance.

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Search Warrants/ when search warrants can be issued

Commonwealth Consolidated Acts

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CRIMES ACT 1914 - SECT 3E

When search warrants can be issued

             (1)  An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

             (2)  An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

             (3)  If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.

             (4)  If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.

             (5)  If an issuing officer issues a warrant, the officer is to state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

                     (c)  the kinds of evidential material that are to be searched for under the warrant; and

                     (d)  the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

                     (e)  the time at which the warrant expires (see subsection (5A)); and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

          (5A)  The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (6)  The issuing officer is also to state, in a warrant in relation to premises:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

             (7)  The issuing officer is also to state, in a warrant in relation to a person:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  the kind of search of a person that the warrant authorises.

             (8)  Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.

             (9)  If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:

                     (a)  subsections (1) and (2) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

           (10)  An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

           (11)  An issuing officer in a State or internal Territory may:

                     (a)  issue a warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

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