A3 v Australian Crime Commission - [2006] FCA 894

FEDERAL COURT OF AUSTRALIA
A3 v Australian Crime Commission [2006] FCA 894
A3 v AUSTRALIAN CRIME COMMISSION & ANOR
NSD373 OF 2006
EMMETT J
10 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD373 OF 2006

BETWEEN:

A3
FIRST APPLICANT

P
SECOND APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

10 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The first respondent seeks to read an affidavit of Mr Ian MacDonald Andrew, sworn 5 May 2006, on the basis that I make an order that that affidavit not be disclosed to any person or party other than the respondents and their legal representatives in this proceeding and an order that publication of that affidavit and any of its contents be prohibited. The applicant objects to the affidavit being read at all and also objects to its being admitted on the basis that I make the orders that I have outlined.
The issue in this proceeding is whether certain documents evidencing communications between unnamed persons are the subject of legal professional privilege, such that their contents should be kept confidential. The documents were produced to the first respondent, the Australian Crime Commission (‘the Commission’), in response to a notice requiring production of the documents.
On 15 May 2003, pursuant to s 7C of the Australian Crime Commission Act 2002 (Cth) (‘the Act’), the Board of the Commission authorised the Money Laundering and Tax Fraud Determination. That instrument authorised the Commission to conduct a special investigation in respect of certain kinds of federally relevant criminal activity, as defined in s 4 of the Act, including money laundering, tax fraud and related criminal enterprises. The duration of the investigation has been extended until 30 June 2006.
Pursuant to the Money Laundering and Tax Fraud Determination, the Commission is currently conducting a special investigation, code-named ‘Operation Wickenby’. Operation Wickenby is an investigation of national and international significance into allegations of tax fraud and money laundering.
Subsequent to the execution of search warrants at the first applicant’s home and business premises, pursuant to s 29 of the Act, an examiner of the Commission issued a notice to produce requiring production of certain materials. That notice bears the date 22 September 2005. In pursuance of that notice, numbers of documents were produced, including the documents in respect of which the applicant claims a determination that the documents are the subject of legal professional privilege.
There are in excess of 40 documents involved. The documents involved have been tendered by the applicant but an order has been made, at the instigation of the applicant and not opposed by the respondents, that access to those documents be limited to counsel and solicitors for the applicant.
The respondents dispute the claim to privilege on several grounds, one of which is that the communications evidenced by the documents in question were made in the furtherance of a…

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 894
Decision Date: 10 MAY 2006

CaseChat Overview and Summary

The case of A3 v Australian Crime Commission was heard by Justice Emmett in the Federal Court of Australia. The first applicant, A3, sought to prevent the Australian Crime Commission (the "Commission") from reading an affidavit of Mr Ian MacDonald Andrew, which was sworn on 5 May 2006. The Commission had issued a notice to produce certain documents in response to which the first applicant had produced a number of documents. The first applicant claimed that these documents were subject to legal professional privilege. The Commission, on the other hand, argued that the communications evidenced by the documents were made in furtherance of a crime, fraud or other impropriety, and therefore not privileged. The Commission sought an order that the affidavit not be disclosed to anyone other than the respondents and their legal representatives and that publication of that affidavit and any of its contents be prohibited.

The primary issue before the court was whether the documents in question were subject to legal professional privilege. The court noted that there was a public interest in preserving secrecy and confidentiality in relation to the information contained in the affidavit and the documents exhibited to the affidavit, which the Commission sought to tender. The first applicant opposed the reading of the affidavit and the tender of the documents on the basis that they were subject to public interest immunity, which it was not open to the Commission to waive. The court considered the relevant provisions of the Evidence Act 1995 (Cth) and the Federal Court of Australia Act 1976 (Cth) and found that the proposed orders would allow the Commission to adduce the evidence it sought, while protecting the secrecy of the ongoing criminal investigations.

The court held that the proposed orders should be made, subject to the condition that the contents of the affidavit and the documents referred to in it were otherwise admissible, according to the proper principles of evidence, in relation to any matter of fact that had to be proved and was relevant in the proceeding. The court held that the interests of justice would be best served by allowing the affidavit to be read on the basis that the orders proposed by the Commission were made in respect of the affidavit and any exhibits referred to in it. The court noted that the only issue in the proceeding concerned the question of whether or not legal professional privilege attached to the documents which had been tendered and marked. The court found that it would be a significant interference with the normal rules of procedural fairness for the legal advisers to the first applicant to be deprived of the opportunity of making specific submissions concerning whether or not the affidavit and exhibits intended to be relied upon by the respondents justified a conclusion that there were reasonable grounds for believing that the communications evidenced by the documents in issue were made in the furtherance of a crime, or fraud, or other impropriety. However, if it were the fact that the documents evidenced communications made in the furtherance of a crime, or fraud, or other impropriety, there was a very significant public interest in the conclusion that they should not be the subject of legal professional privilege.

The court found that the proposed orders would allow the Commission to adduce the evidence it sought, while protecting the secrecy of the ongoing criminal investigations. The court noted that if the proposed orders were made, the Full Evidence Interest would outweigh the Secrecy Interest. That is to say, if the proposed orders were made, there would be no prejudice to Operation Wickenby and the further investigation and prosecution of offences under investigation. The only persons who would have the material were those who already had access to it, plus the court and court officers. It had not been suggested that disclosure to the court or to court officers, by whom the court meant its staff, would be prejudicial to the public interest. On the other hand, if the proposed orders were made, the Fairness Interest would be significantly affected. In the court's view, therefore, the question of whether the material should be admitted into evidence and whether the proposed order should be made involved resolution of a conflict between the Full Evidence Interest, on the one hand, and the Fairness Interest on the other hand. The court found that the interests of justice would be best served by allowing the affidavit to be read on the basis that the orders proposed by the Commission were made in respect of the affidavit and any exhibits referred to in it.

In summary, the court held that the proposed orders should be made, subject to the condition that the contents of the affidavit and the documents referred to in it were otherwise admissible, according to the proper principles of evidence, in relation to any matter of fact that had to be proved and was relevant in the proceeding. The court found that the proposed orders would allow the Commission to adduce the evidence it sought, while protecting the secrecy of the ongoing criminal investigations. The court found that the interests of justice would be best served by allowing the affidavit to be read on the basis that the orders proposed by the Commission were made in respect of the affidavit and any exhibits referred to in it.

Orders