Assistant Commissioner Condon v Pompano Pty Ltd

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ

ASSISTANT COMMISSIONER MICHAEL JAMES
CONDON  APPLICANT

AND

POMPANO PTY LTD & ANOR  RESPONDENTS

Assistant Commissioner Michael James Condon v Pompano Pty Ltd

[2013] HCA 7

14 March 2013

B59/2012

ORDER

The questions asked by the parties in the Special Case dated 26 October 2012 and referred for consideration by the Full Court be answered as follows:

Question 1

Is s 66 of the Criminal Organisation Act, by requiring the Court to hear an application that particular information is criminal intelligence without notice of the application being given to the person or organisation to which the information relates, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 2

Is s 70 of the Criminal Organisation Act, by requiring the Supreme Court to exclude all persons other than those listed in s 70(2) from the hearing of an application for a declaration that particular information is criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 3

Is s 78 of the Criminal Organisation Act, by requiring a closed hearing of any part of the hearing of the substantive application in which the court is to consider declared criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 4

Is s 76 of the Criminal Organisation Act, by providing that:

(a)an informant who provides criminal intelligence to an agency may not be called or otherwise required to give evidence;

(b)an originating application and supporting material need not include any identifying information about an informant; and

(c)identifying information can not otherwise be required to be given to the court,

invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 5

Is s 10 of the Criminal Organisation Act, insofar as it requires the Court to have regard to information that is declared criminal intelligence which a respondent or a respondent's legal representative has not heard or received because of the effect of ss 66, 70, 76, 77, 78, 82 and 109 of the Criminal Organisation Act, and when read with ss 63(5), 64(2), 64(8), 65(4), 71(2) and 80(2), invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 6

Is s 10(1)(c) of the Criminal Organisation Act invalid on the ground that it infringes Chapter III of the Constitution because of the nature of the judgment that it requires the Court to make?

Answer

No.

Question 7

Is s 9 of the Criminal Organisation Act, when read with s 8(5) and s 106, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 8

Who should pay the costs of the special case?

Answer

The respondents.

Representation

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D…

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Details
Case
[2013] HCA 7
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered questions arising from an application by Assistant Commissioner Condon of the Queensland Police Service seeking a declaration under the *Criminal Organisation Act 2009* (Qld) that the Finks Motorcycle Club, Gold Coast Chapter, and Pompano Pty Ltd constituted a criminal organisation. The dispute concerned the validity of various provisions of the Act, particularly those relating to the use of "criminal intelligence" in closed hearings, and their compatibility with Chapter III of the Australian Constitution, which governs the institutional integrity of State courts.

The legal issues before the Court included whether sections of the Act requiring closed criminal intelligence hearings, the exclusion of respondents and their legal representatives from parts of those hearings, and the prohibition on calling informants as witnesses, infringed upon the procedural fairness owed to respondents. Furthermore, the Court had to determine if these provisions, by potentially limiting the ability of the Supreme Court of Queensland to fully scrutinise evidence or provide a fair hearing, were repugnant to or inconsistent with the continued institutional integrity of the Supreme Court, and whether the question of an "unacceptable risk to the safety, welfare or order of the community" was a suitable matter for judicial determination. The Court also considered whether other sections of the Act prevented the Supreme Court from extending time for respondents to file their responses.

The Court reasoned that while the impugned provisions of the Act imposed significant restrictions on the usual adversarial process, they did not fundamentally impair the essential characteristics of the Supreme Court. The Court found that the provisions did not transgress constitutional limits because the Supreme Court retained its inherent jurisdiction to stay a substantive application where practical unfairness to a respondent became manifest. This capacity to stay proceedings was considered sufficient to preserve the institutional integrity of the Court and ensure that the criminal intelligence provisions were saved from constitutional invalidity. The Court also determined that the nature of the judgment required by the Act was suitable for judicial determination and that other provisions did not prevent the extension of time for respondents.

The Court answered each of the substantive questions referred in the Special Case in the negative, finding the impugned provisions of the *Criminal Organisation Act 2009* (Qld) to be constitutionally valid. The respondents were ordered to pay the costs of the Special Case.

Orders

Orders of the court

The questions asked by the parties in the Special Case dated 26 October 2012 and referred for consideration by the Full Court be answered as follows:

Question 1

Is s 66 of the Criminal Organisation Act, by requiring the Court to hear an application that particular information is criminal intelligence without notice of the application being given to the person or organisation to which the information relates, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 2

Is s 70 of the Criminal Organisation Act, by requiring the Supreme Court to exclude all persons other than those listed in s 70(2) from the hearing of an application for a declaration that particular information is criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 3

Is s 78 of the Criminal Organisation Act, by requiring a closed hearing of any part of the hearing of the substantive application in which the court is to consider declared criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 4

Is s 76 of the Criminal Organisation Act, by providing that:

(a) an informant who provides criminal intelligence to an agency may not be called or otherwise required to give evidence;

(b) an originating application and supporting material need not include any identifying information about an informant; and

(c) identifying information can not otherwise be required to be given to the court,

invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 5

Is s 10 of the Criminal Organisation Act, insofar as it requires the Court to have regard to information that is declared criminal intelligence which a respondent or a respondent's legal representative has not heard or received because of the effect of ss 66, 70, 76, 77, 78, 82 and 109 of the Criminal Organisation Act, and when read with ss 63(5), 64(2), 64(8), 65(4), 71(2) and 80(2), invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 6

Is s 10(1)(c) of the Criminal Organisation Act invalid on the ground that it infringes Chapter III of the Constitution because of the nature of the judgment that it requires the Court to make?

Answer

No.

Question 7

Is s 9 of the Criminal Organisation Act, when read with s 8(5) and s 106, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 8

Who should pay the costs of the special case?

Answer

The respondents.

Background

Background to the litigation

For the reasons that follow, the impugned provisions of the COA do not substantially impair the essential characteristics of the Supreme Court of Queensland. That is to say, they have not been shown to transgress constitutional limits. Procedural background The COA provides for "the making of declarations and orders for the purpose of disrupting and restricting the activities of organisations involved in serious criminal activity, and of their members and associates"[2].[2]COA, long title. See also the stated objects in s 3(1). On 1 June 2012, the Assistant Commissioner of the Queensland Police Service filed an application in the Supreme Court under s 8 of the COA seeking a declaration under s 10 that the Finks Motorcycle Club, Gold Coast Chapter and Pompano Pty Ltd, said to be "part of" that Chapter (together "the organisation"), constitute a criminal organisation. A list of persons said to constitute the current members of the Gold Coast Chapter was set out in the application together with a list of former members and nominee members, and of the office-bearers and shareholders of Pompano Pty Ltd. The application was supported by 135 affidavits. The application was required by s 8 of the COA to state the grounds upon which the declaration was sought[3] and information supporting those grounds[4]. It was required to be accompanied by any affidavit the applicant intended to rely on at the hearing of the application[5]. The grounds on which the declaration was sought were:"a.The organisation consists of a group of more than three people based inside Queensland;b.The members associate for the purposes of engaging in or conspiring to engage in serious criminal activity as defined in ss 6 and 7 of the Criminal Organisation Act 2009;c.The organisation is an unacceptable risk to the safety, welfare and order of the community."[3]COA, s 8(2)(c).[4]COA, s 8(2)(d).[5]COA, s 8(3). Information supporting the grounds of the application was set out at length. The first part of the information consisted of a list of members, nominee members and former members of the Gold Coast Chapter, each of whom was said to have a criminal history in Queensland and/or other parts of Australia. The next part of the application set out information, under a heading which read:"The members associate for the purpose of engaging in or conspiring to engage in serious criminal activity and the Organisation is an unacceptable risk to the safety, welfare and order of the community."That information consisted of a list of members of the Gold Coast Chapter with details of their criminal convictions. Those convictions were for offences said to have been committed singly or in combination with others. At par 613 of the application, the following statement appeared:"Information supporting the grounds of this application is also contained in information which has been declared criminal intelligence.""Criminal intelligence" is defined in s 59 of the COA: "(1)Criminal intelligence is information relating to actual or suspected criminal activity, whether in the State or elsewhere, the disclosure of which could reasonably be expected to—(a)prejudice a criminal investigation; or(b)enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or (c)endanger a person's life or physical safety.(2)Criminal intelligence may be information that the commissioner has obtained through the police service or from an external agency."

Evidence

Evidence Before The Court

The respondents put a rather tangential argument that the provisions of the COA relating to criminal intelligence would allow material which is not admissible evidence to be put before the Supreme Court in a substantive application under the COA. However, as appears below and subject to one qualification, the rules of evidence are generally applicable in substantive proceedings under the COA.Application of the rules of evidence In support of their argument that the COA abrogated the rules of evidence, the respondents pointed to s 10(2), which requires the Supreme Court, in an application for a criminal organisation declaration, to have regard to certain "information" before the Supreme Court[39] and "anything else the court considers relevant."[40] The submission appeared to be linked to question (v) in the Special Case although the focus of that question is upon the requirement, said to flow from s 10(2), that the Supreme Court have regard to declared criminal intelligence which neither the respondents nor the respondents' legal representative would have heard or received. The applicant submitted that the rules of evidence apply on the hearing of such an application. [39]COA, s 10(2)(a).[40]COA, s 10(2)(b). The reference in s 10(2) to "information" to which the Supreme Court must have regard is to be read in the light of ss 8(3) and 107(1) of the COA. Section 8(3) requires that an application for a criminal organisation declaration be accompanied by "any affidavit the commissioner intends to rely on at the hearing of the application." Section 107(1) requires that an affidavit relied on in an application under the COA "may only contain a matter if direct oral evidence of the matter would be admissible." That requirement is qualified in one respect by s 107(2). An affidavit authorised under s 61 that has been admitted in evidence in an application for a criminal intelligence declaration "may also be admitted in evidence in the proceedings for the substantive application." Section 61 provides that an affidavit relied upon by the Commissioner in an application for a criminal intelligence declaration may contain statements based on information and belief if the deponent states the sources of the information and the grounds for the belief. The section removes a bar to admissibility that would otherwise exist by reason of the hearsay nature of such evidence. It does not overcome the requirement that the evidence be relevant. It does not require the Supreme Court to admit such an affidavit. Indeed, the leave of the Supreme Court would be required before the Commissioner could rely upon such an affidavit. That requirement is imposed by r 395 of the Uniform Civil Procedure Rules 1999 (Q) ("the UCPR"), which apply in relation to applications made to the Supreme Court under the COA to the extent that they are consistent with the COA[41].[41]COA, s 101. Rule 395 of the UCPR allows a party in a proceeding before the Supreme Court, with the leave of the Court, to rely on evidence given or an affidavit filed in another proceeding or at an earlier stage of the same proceeding. Nothing in the COA excludes the application of that rule. The leave requirement imposed by r 395 is, on its face, applicable to the use, in a criminal organisation declaration application, of an affidavit used in a criminal intelligence declaration application. Section 107(2) does not overcome that requirement, dealing as it does only with the admissibility of such affidavits where they contain hearsay evidence. The Supreme Court, when hearing an application for a criminal organisation declaration, may have regard to the probative value of the hearsay material contained in such an affidavit and the unfairness, if any, worked by admitting it. Even if such an affidavit were admitted the Supreme Court would still have to determine what, if any, weight was to be given to it.

Decision

Reasons for decision

FRENCH CJ
The procedural difficulty demands a procedural solution. There is a procedural solution. It is implicit in the acknowledgement by the Solicitor-General of Queensland that the use by the commissioner of declared criminal intelligence could in some circumstances amount to an abuse of process. The solution lies in the capacity of the Supreme Court of Queensland to stay a substantive application in the exercise of its inherent jurisdiction in any case in which practical unfairness to a respondent becomes manifest. The criminal intelligence provisions are saved from incompatibility with Ch III of the Constitution only by the preservation of that capacity.Conclusion The answer to each substantive question reserved is "no". The answers to the questions reserved do not determine questions not reserved and not argued. They do not determine whether s 108 of the COA is valid in requiring a closed hearing.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

In considering the other questions in the Special Case, it is necessary to have regard to what is at stake for the respondents. A declaration that an organisation is a criminal organisation does not have any coercive operation. However, such a declaration, if made, would have significant legal consequences for the organisation and its members.Legal consequences of a criminal organisation declaration A declaration that an organisation is a criminal organisation enlivens or informs the exercise of powers conferred on the Supreme Court to make coercive orders under the COA and in particular control orders, public safety orders and fortification removal orders. An outline of the nature of those orders and their connection to a criminal organisation declaration under s 10 follows. Part 3 of the COA provides for control orders. The Commissioner may apply for a control order against a person under s 16. The Supreme Court may make such an order if it is satisfied that the respondent in relation to whom the application is made[25]:"(a)is, or has been, a member of a criminal organisation; and (b)engages in, or has engaged in, serious criminal activity; and (c)associates with any person for the purpose of engaging in, or conspiring to engage in, serious criminal activity."Alternatively, the Supreme Court can make a control order against a person who is not a member of a criminal organisation but engages in, or has engaged in, serious criminal activity and associates with any member of a criminal organisation for the purpose of engaging in, or conspiring to engage in, serious criminal activity[26]. The content of the control order is found in the conditions imposed on the respondent by the Supreme Court pursuant to s 19 including, as a mandatory condition, a prohibition on the respondent from associating with any person who is a member of a criminal organisation[27]. On its face, s 19, read with s 10, has the effect that the content of that prohibition, effected by a control order, expands whenever another organisation is declared to be a criminal organisation.[25]COA, s 18(1).[26]COA, s 18(2).[27]COA, s 19(5)(a). Part 4 of the COA provides for the Supreme Court to make a public safety order for a person or a group of persons if satisfied that their presence at premises or an event, or within an area, poses a serious risk to public safety or security and that making the order is appropriate in the circumstances[28]. A mandatory relevant consideration is whether the respondent is or has been a member of a criminal organisation, or associates, or has associated, with a member of a criminal organisation[29]. A public safety order may prohibit the respondent from entering or remaining in stated premises or in a stated area or attending or remaining at a stated event[30].[28]COA, s 28(1).[29]COA, s 28(2)(b).[30]COA, s 29(2). Part 5 of the COA provides for fortification removal orders. The respondent to an application for such an order must be a person or organisation who is, alone or with others, an occupier of the fortified premises[31]. One of the criteria enlivening the discretion of the Supreme Court to make a fortification removal order is that the fortified premises are owned or habitually occupied or used by a criminal organisation or a member, prospective member, or an associate of a criminal organisation[32].[31]COA, s 41(2).[32]COA, s 43(1)(b)(ii).