Robyn Wuth | 07:24am November 13, 2012 | Gold Coast Bulletin
THE powerful legal team for the Finks outlaw motorcycle gang claims the laws being used against the club are “repugnant” to the judicial process.
A 13-page submission lodged in the High Court of Australia outlines the Finks’ constitutional challenge against moves to have the gang’s Gold Coast chapter and an associated company declared criminal organisations under Queensland’s three-year-old anti-bikie laws.
The submission, prepared by Potts Lawyers and $12,000-a-day Sydney silk Bret Walker, SC, challenges the constitutional validity of the Criminal Organisation Act 2009 (Qld).
It argues sections of the Act are invalid as the police rely on secret information that cannot be tested by the club, or its legal representatives.
The report said an entitlement to challenge an opponent’s evidence was of longstanding significance in the context of criminal proceedings.
“It expressly prevents the court from permitting a respondent or its legal representatives access to any part of the declared criminal intelligence,” the report said.
It states the legislation fails to balance the “demands of secrecy” with the basic right to test evidence provided to the court.
The document also outlines the “inherent risk” of allowing evidence that has not been properly evaluated and tested.
“That risk is compounded when the court cannot require the informant to give evidence in person, where the court receives only cursory information relevant to the informant’s credibility and where the court cannot require further information concerning matters relevant to credibility,” the report said.
The submission relies on the right to confront a witness as “basic to any civilised notion of a fair trial”.
Prominent criminal lawyer Bill Potts said a response to the submission was expected to be lodged by the end of the week.
“The matters are being prepared for what is clearly going to be a difficult and interesting argument before the High Court,” said Mr Potts.
“We remain hopeful and confident the High Court will closely look at the legislation to determine its constitutional validity.”
The High Court will hear the matter on December 4-5 and has been set on December 4 and 5. Attorneys-General for South Australia and NSW, where similar anti-bikie legislation was successfully defeated, along with Victoria and the Northern Territory have indicated they will seek leave to appear.