Anderson (Examiner of the Australian Criminal Intelligence Commission) v SAA
[2021] FCA 890
•30 July 2021
FEDERAL COURT OF AUSTRALIA
Anderson (Examiner of the Australian Criminal Intelligence Commission) v SAA [2021] FCA 890
File number: NSD 765 of 2021 Judgment of: NICHOLAS J Date of judgment: 30 July 2021 Date of publication of reasons: 2 August 2021 Catchwords: STATUTES – whether orders should be made under s 24(3) of Australian Crime Commission Act 2002 (Cth) Legislation: Australian Crime Commission Act 2002 (Cth) s 24 Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 20 Date of hearing: 30 July 2021 Solicitor for the Applicant: Ms N Ramesh of Australian Government Solicitor Solicitor for the Respondent: Mr M Chahine of One Group Legal ORDERS
NSD 765 of 2021 BETWEEN: JEFFREY PHILIP ANDERSON (EXAMINER OF THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION)
Applicant
AND: SAA
Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS THAT:
1.The respondent deliver to the applicant any passport issued to him that is in his possession, custody or control.
2.The applicant is authorised to retain any such passport for a period of 14 days.
3.The proceeding is listed for a case management hearing at 9.30am on 4 August 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
On 30 July 2021 I made an order pursuant to s 24(1) of the Australian Crime Commission Act 2002 (Cth) (“the Act”) requiring the respondent to appear before the Court at 2.30pm that day to show cause why he should not be ordered to deliver to the applicant any passport issued to the respondent which is in his possession, custody or control. On the return of the show cause order both parties appeared and were legally represented. At the conclusion of the hearing I made various orders including orders under s 24(3) of the Act. These are my reasons for making those orders.
Section 24 of the Act provides:
24 Order for delivery to examiner of travel documents of witness
(1)Where, upon application by an examiner, a Judge of the Federal Court sitting in Chambers is satisfied by evidence on oath that:
(a)in connection with a special ACC operation/investigation, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things;
(b)there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the special ACC operation/investigation and could be of particular significance to the special ACC operation/investigation; and
(c)there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control:
(i)an Australian travel document that has been issued to him or her; or
(ii)a passport or other travel document that has been issued to him or her by or on behalf of the government of a foreign country;
the Judge may make an order requiring the person to appear before the Federal Court on a date, and at a time and place, specified in the order to show cause why he or she should not be ordered to deliver the travel document to the examiner.
(2) Where:
(a)an order under subsection (1) or a corresponding provision of a law of a State has been made in respect of a person; and
(b) a copy of that order has been served upon the person;
the person shall not leave Australia unless:
(c)he or she has appeared before the Federal Court as required by the order referred to in paragraph (a); and
(d)if the Court makes an order in respect of him or her under paragraph (3)(a)—he or she has complied with the terms of that order and any travel document delivered by him or her to the examiner in accordance with that order has been returned to him or her.
Penalty: 50 penalty units or imprisonment for 2 years.
(3)Where a person appears before the Federal Court in pursuance of an order made under subsection (1), the Court may, if it thinks fit, make an order:
(a)requiring the person to deliver to the examiner any travel document issued to him or her that is in his or her possession, custody or control; and
(b)authorizing the examiner to retain the travel document until the expiration of such period (not exceeding one month) as is specified in the order.
(4)The Federal Court may, upon application by the examiner, extend for a further period (not exceeding one month) or further periods (not exceeding one month in each case) the period for which the examiner is authorized to retain a travel document in pursuance of an order made under subsection (3), but so that the total period for which the examiner is authorized to retain the travel document does not exceed 3 months.
(5)The Federal Court may, at any time while the examiner is authorized in pursuance of an order made under this section to retain a travel document issued to a person, upon application made by the person, revoke the order and, if the order is revoked, the examiner shall forthwith return the travel document to the person.
(6)The Federal Court has jurisdiction with respect to matters arising under this section.
(7) In this section, Australia includes the external Territories.
Section 4 of the Act includes definitions of “special ACC operation/investigation”, “special ACC investigation” and “special ACC operation”.
The show cause order was made following an ex parte application made in chambers by a lawyer acting for the Australian Criminal Intelligence Commission, also known as the Australian Crime Commission (“the Commission”). That was in fact the second application that had been made to me. An ex parte application made for an order to the same effect was refused by me because I was not, on the evidence then before me, satisfied of the matters referred to in s 24(1)(b) of the Act. On the basis of the affidavit evidence, consisting of two affidavits made by Gregory Schott sworn on 29 July 2021 and 30 July 2021, I was satisfied of the matters referred to in s 24(1)(a), (b) and (c) of the Act.
A summons was issued under the Act on 16 July 2021 requiring the respondent to appear before the applicant for the purposes of an investigation (“the investigation”) being undertaken by the Commission under the Special Australian Criminal Intelligence Commission Investigation Determination (Targeting Criminal Wealth) 2020.
The evidence shows that the respondent made plans to leave Australia by plane on 31 July 2021 with his wife and children. The evidence shows that he obtained a travel exemption from the Australian Border Force on 21 June 2021 (prior to the issue of the summons) on the basis that he wished to travel overseas to be with his aunt who lives in Lebanon. The exemption is valid for three months from the date of issue.
A statutory declaration made by the respondent provided in support of the application for the travel exemption indicated that the respondent’s aunt was suffering from various heart-related conditions, high blood pressure and that she needed “treatment and support”.
The summons to appear before the applicant requires the respondent to give evidence in relation to the involvement of the Comancheros Outlaw Motorcycle Club (“the CMC”), its members, associates and others, concerning the importation and trafficking of border control drugs, tax evasion, and money laundering activities and methodologies.
The evidence before me also indicates that there are reasonable grounds to believe that the respondent is a senior member of the CMC who has close links with other senior members, some of whom are located in the United Arab Emirates, Lebanon and Turkey, and that the respondent may be able to provide the applicant with evidence relevant to the investigation which may be of particular significance.
The respondent has an extensive criminal record including for violence, dealing with the proceeds of crime, and firearm related offences. He is currently the subject of a Firearms Prohibition Order made pursuant to the Firearms Act 1996 (NSW).
On 19 April 2021 the respondent was convicted in the Local Court of New South Wales at Sydney Downing Centre of seeking to pervert the course of justice and was sentenced by way of a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act1999 (NSW). The conditions of that order required that the respondent not commit any offences and that he appear before the Court if called on to do so during the term of the order. The order commenced on the date it was made and operates for a period of 9 months.
It was submitted on behalf of the respondent that there is no evidence to show that the respondent will not return to Australia in time for his examination.
If the respondent’s submission relates to direct statements of intention, then it is correct. The respondent has never said that he was not willing to return to Australia and, on the contrary, there is evidence to show that his solicitor took steps to negotiate a change in the date for the examination so that it could occur after his return. However, there is no direct evidence from the respondent as to his intention. The only affidavit evidence relied upon by the respondent at the hearing was an affidavit made by his solicitor.
It is important to note that s 24(1)(c) merely requires that there be “reasonable grounds for suspecting” that the person intends to leave Australia. It does not require that his or her departure occur with the intention of avoiding the examination, or that there are reasonable grounds to suspect that is his or her intention, although those are matters that would be highly relevant to the exercise of the discretion to make an order under s 24(3).
In this matter I was satisfied by evidence on oath of each of the matters referred to in s 24(1)(a), (b) and (c) of the Act. Having now heard from the respondent, I am also of the opinion that there should be an order made pursuant to s 24(3) of the Act. There are four matters that have led me to conclude that there should be an order under s 24(3) of the Act.
First, it is not disputed by the respondent that a summons has been issued to him under the Act requiring him to appear at an examination of the relevant kind and that there are reasonable grounds for believing that he may be able to give evidence that is of particular significance to the investigation.
Second, it is not disputed that the respondent is a senior member of the CMC and that he has an extensive criminal record. I have referred to some of the respondent’s convictions which include offences for dishonesty and an offence to which the respondent pleaded guilty that has as its mens rea an intention to pervert the course of justice.
Third, there is no evidence from the respondent as to his intentions or any connections he has to Australia which might bear on the likelihood of him returning to Australia if he were to leave before his examination was conducted. I note that the respondent is planning to leave Australia in the company of his wife and three children.
Fourth, I do not regard the evidence bearing on the respondent’s need to travel as persuasive. The evidence from the respondent does not contain any additional information which would suggest that there is an urgent or pressing need for the respondent to travel to Lebanon to provide care and support to his aunt or why other members of his extended family are not able to do so at least until such time as the examination has been completed.
In submissions made on behalf of the respondent reference was made to the financial impact that deferral of his travel arrangements would have on him. There is no evidence as to what the financial impact of either cancelling or rescheduling those travel arrangements would be or what financial hardship that would impose on the respondent.
During the course of the hearing I raised with the parties the possibility of their legal representatives agreeing to some arrangement which enabled the examination date to be brought forward. The applicant’s representatives indicated they would not be in a position to determine whether or not that was possible until 4 August 2021. The proceeding will be listed for a case management hearing on that day to see what the position is. I also indicated that, in the meantime, I would limit the period during which the applicant is authorised to retain the respondent’s passport to 14 days. It will remain open to the applicant to apply for an extension of my order pursuant to s 24(4) of the Act.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 2 August 2021
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