A2 v Australian Crime Commission - [2006] FCA 106

FEDERAL COURT OF AUSTRALIA
A2 v Australian Crime Commission [2006] FCA 106
ADMINISTRATIVE LAW – validity of warrants – warrants for purpose of Australian Crime Commission special investigation – whether power to issue and execute warrants limited – whether for use in criminal prosecution process
Ryder v Morley (1987) 16 FCR 257 applied
Ryder v Morley (1986) 12 FCR 438 cited
Malubel Pty Ltd v Elder [1997] FCA 1535 cited
Malubel Pty Ltd v Elder (1998) 88 FCR 242 cited
Abebe v Commonwealth (1999) 197 CLR 510 cited
Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 cited
Adler v Gardiner (2002) 43 ACSR 24 cited
Kennedy v Baker (2004) 135 FCR 520 cited
Hart v Commissioner of the Australian Federal Police (2002) 124 FCR 384 cited
Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 cited
Jilani v Wilhelm [2005] FCAFC 269 cited
Judiciary Act 1903 (Cth)
Crimes Act 1914 (Cth)
Australian Crime Commission Act 2002 (Cth)
Criminal Code Act 1995 (Cth)
Proceeds of Crime Act 1987 (Cth)
Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth)
Proceeds of Crime Act 2002 (Cth)
Australian Crime Commission Establishment Act 2002 (Cth)
National Crime Authority Act 1984 (Cth)
A2 v AUSTRALIAN CRIME COMMISSION AND IAN PEEBLES
NSD 1997 OF 2005
YOUNG J
16 FEBRUARY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1997 OF 2005

BETWEEN:

A2
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

IAN PEEBLES
SECOND RESPONDENT

JUDGE:

YOUNG J

DATE OF ORDER:

16 FEBRUARY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1997 OF 2005

BETWEEN:

A2
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

IAN PEEBLES
SECOND RESPONDENT

JUDGE:

YOUNG J

DATE:

16 FEBRUARY 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This proceeding involves an application under s 39B of the Judiciary Act1903 (Cth) for declarations that two search warrants issued under Pt 1AA of the Crimes Act1914 (Cth) (“the Crimes Act”) are invalid.
The applicant contends, and the Australian Crime Commission (“ACC”) admits, that the warrants were issued on the application of members of the staff of the ACC for the sole purpose of assisting a ‘special investigation’ being undertaking by the ACC under the Australian Crime Commission Act2002 (Cth) (“the ACC Act”). The applicant contends that Pt 1AA of the Crimes Act does not authorise the issue of search warrants for that purpose. The ACC disputes that proposition. The proceeding therefore turns upon the proper construction of Pt 1AA of the Crimes Act and provisions of the ACC Act.
THE FACTS
There is no dispute as to the relevant facts. The warrant applications were made by members of the staff of the ACC to the second respondent. The…

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.

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Details

Case: [2006] FCA 106
Decision Date: 16 FEBRUARY 2006

CaseChat Overview and Summary

In the matter of A2 v Australian Crime Commission, the applicant sought to challenge the validity of search warrants issued by the Australian Crime Commission (ACC). These warrants were issued to aid a 'special investigation' conducted by the ACC under the Australian Crime Commission Act 2002. The applicant argued that Part 1AA of the Crimes Act did not authorise the issuance of these warrants, a contention disputed by the ACC. The primary legal issue before the court was the interpretation of Part 1AA of the Crimes Act in conjunction with relevant provisions of the ACC Act. Specifically, the court had to determine whether the search warrant powers under Part 1AA could be exercised in support of the ACC's special investigation, even though another Commonwealth law, such as the ACC Act, also provides for the issuance and execution of search warrants.

The court found that Section 3D(2) of the Crimes Act allows the use of search warrant powers under Part 1AA, regardless of other Commonwealth laws that may provide for the issuance and execution of search warrants. This interpretation was supported by the Supplementary Explanatory Memorandum, which indicated that Section 3D(2) was intended to clarify that the search warrant powers under Part 1AA can be utilised when investigating Commonwealth offences under other Commonwealth legislation, even if that legislation also contains search warrant powers. The court concluded that the search warrants were validly issued under Section 3E of the Crimes Act and dismissed the application. The applicant was ordered to pay the first respondent's costs, including reserved costs, as agreed by the parties.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs, including reserved costs.

Background

Background to the litigation

The applicant contends, and the Australian Crime Commission (“ACC”) admits, that the warrants were issued on the application of members of the staff of the ACC for the sole purpose of assisting a ‘special investigation’ being undertaking by the ACC under the Australian Crime Commission Act2002 (Cth) (“the ACC Act”). The applicant contends that Pt 1AA of the Crimes Act does not authorise the issue of search warrants for that purpose. The ACC disputes that proposition. The proceeding therefore turns upon the proper construction of Pt 1AA of the Crimes Act and provisions of the ACC Act.THE FACTS There is no dispute as to the relevant facts. The warrant applications were made by members of the staff of the ACC to the second respondent. The ACC is a body established by s 7 of the ACC Act. The second respondent is a Deputy Chamber Magistrate of the Local Court of New South Wales. The second respondent did not appear at the hearing, no doubt because he intends to abide the result of the proceedings. The first warrant was issued to Roland Fleischer on 8 June 2005 as the executing officer in relation to the warrant. Mr Fleischer is a constable within the meaning of the Crimes Act and was so described in the warrant. The warrant authorised the executing officer to enter and search residential premises occupied by the applicant and to seize, inter alia, evidential material relating to the commission of offences against s 29D of the Crimes Act, ss 134.2(1) and 400(4) of the Criminal Code Act1995 (Cth) (“the Criminal Code Act”) and/or s 82 of the Proceeds of Crime Act1987 (Cth) (“the 1987 Proceeds of Crime Act”). After the warrant issued, the name of Brian John Healy and thereafter the name of Ren de Haas in his stead, each of whom is a constable within the meaning of the Crimes Act, was written on the warrant as the executing officer in accordance with ss 3C(1) and 3E(5)(d) of the Crimes Act. The second warrant was issued on 8 June 2005 to Mr Fleischer as the executing officer. Again, he was described in the warrant as a constable within the meaning of the Crimes Act. The warrant authorised the executing officer to enter and search certain business premises occupied by a group of companies of which the applicant was a director, and to seize evidential material relating to the commission of one or more of the offences that were mentioned in the first warrant. After its issue, the name of Brian John Healy and thereafter the name of Grant Prosser, each of whom is a constable within the meaning of the Crimes Act, was written on the warrant in accordance with ss 3C(1) and 3E(5)(d). Both warrants were executed on 9 June 2005. Material was seized pursuant to the warrants, including material which was the property of the applicant. Under s 7C of the ACC Act, the board of the ACC may determine in writing that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective. On 13 May 2003, the board of the ACC made a determination pursuant to this provision which was termed the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003. The special investigation extends to activities that may have involved the commission of offences against s 29D of the Crimes Act, ss 134.2(1) and 400(4) of the Criminal Code Act, and s 82 of the 1987 Proceeds of Crime Act. There is no challenge to the validity of this determination.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

YOUNG J

The applicant attempted to minimise the significance of s 3D(2) by describing it as a non-limitation provision which operated in a similar fashion to s 3D(1). Section 3D(1) performs a different function from s 3D(2). It confirms that Pt 1AA does not limit or exclude s 22 of the ACC Act. It is not directly relevant in this case because the ACC did not invoke any powers under s 22. On the other hand, s 3D(2) declares that the search warrant powers under Pt 1AA may be used even if another law of the Commonwealth, such as s 22 of the ACC Act, provides for the issuance and execution of search warrants. In that way, as the Supplementary Explanatory Memorandum stated, the purpose and effect of s 3D(2) is to remove any doubt that the search warrant powers under Pt 1AA may be used when Commonwealth offences are being investigated under other Commonwealth legislation, even if that other legislation contains search warrant powers.CONCLUSION For the foregoing reasons, I reject the applicant’s challenge to the validity of the search warrants. In my view, the search warrants were validly issued under s 3E of the Crimes Act. There is no challenge to the way in which the search warrants were executed. The application is dismissed. I order that the applicant pay the first respondent’s costs of the proceeding, including reserved costs. As to reserved costs, the parties informed me at the hearing that they agreed that all reserved costs should follow the event. I do not propose to make any order for costs that affects the position of the second respondent.

Ratio Decidendi

Legal Principle Established

Established by: YOUNG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1997 OF 2005

BETWEEN:	A2 APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT IAN PEEBLES SECOND RESPONDENT
JUDGE:	YOUNG J
DATE OF ORDER:	16 FEBRUARY 2006
WHERE MADE:	MELBOURNE

JUDGE:	YOUNG J
DATE:	16 FEBRUARY 2006
PLACE:	MELBOURNE