Australian Crime Commission v LB - [2009] NTSC 43

Australian Crime Commission & Anor v LB [2009] NTSC 43

PARTIES: AUSTRALIAN CRIME COMMISSION
And:
THE QUEEN
v
LB
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING FEDERAL
JURISDICTION
FILE NO: 20916896
DELIVERED: 9 September 2009
REASONS PUBLISHED: 11 September 2009
HEARING DATES: 7, 8 and 9 September 2009
JUDGMENT OF: SOUTHWOOD J
CATCHWORDS:
Australian Crime Commission Act 2002 (Cth)
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407;
Foley v Padley (1984) 154 CLR 349
Egglishaw v Australian Crime Commission [2006] FCA 818
Felice v County Court of Victoria (2006) VSC 12
Gideon v NSW Crime Commission (2008) 236 CLR 120
Kennedy v Baker (2004) 135 FCR 520
Malubel Pty Ltd v Elder (1998) 88 FCR 242
Ousley v R (1997) 192 CLR 69
Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
RTA (NSW) v Conolly (2003) 57 NSWLR 310
Selby v Pennings (1998) 19 WAR 520
Williams v Keelty (2001) 111 FCR 175
X v Australian Crime Commission (2004) 139 FCR 413
REPRESENTATION:
Counsel:

First Applicant: S Maharaj QC
Second Applicant: J Renwick
Respondent: M Abbott QC
Solicitors:

First Applicant: Australian Government Solicitor
Second Applicant: Office of the Commonwealth Director of
Public Prosecutions
Respondent: North Australian Aboriginal Justice
Agency
Judgment category classification: A

Judgment ID Number: Sou0908
Number of pages: 23
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

[1]	s 30(2)(a) of the Australian Crime Commission Act 2002 (Cth)[1], on

Australian Crime Commission & Anor v LB [2009] NTSC 43

No 20916896

BETWEEN:
AUSTRALIAN CRIME COMMISSION
First Applicant

AND:
THE QUEEN
Second Applicant

AND:
LB
Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT (Published 11 September 2009)

Introduction
The respondent has been charged with a single count that contrary to witness at an examination before an examiner, when required either to take an oath or make an affirmation, refused or failed to comply with the requirement. The respondent’s trial is set down for hearing on 19 October 2009 for three days.

On or about 21 August 2009 the solicitors for the respondent filed a subpoena addressed to the Australian Crime Commission. The subpoena was then served. The subpoena sought production of the following documents:

1.
Crime Commission said to have occurred at 2.45pm on
The minutes of the meeting of the Board of the Australian resolution the instrument entitled Australian Crime Commission Special Intelligence Operation Authorisation and determination (Indigenous Violence or Child Abuse) 2007.

2.
Crime Commission said to have occurred at 2.07 pm on
The minutes of the meeting of the Board of the Australian resolution the instrument entitled Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Indigenous Violence and Child Abuse) Amendment No 1 of 2008.

3.
Any reasons which Examiner Anderson recorded pursuant to reasonable in all the circumstances to issue a s 28 Summons to the respondent.

On 4…

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: [2009] NTSC 43
Decision Date: 9/09/2009

CaseChat Overview and Summary

In the matter of Australian Crime Commission v LB, the Federal Court was called upon to determine the legality of a subpoena issued by the Australian Crime Commission (ACC). The respondent, LB, challenged the subpoena, arguing that it was overly broad and did not specify the nature of the matters for which he was being questioned. The Court had to decide whether the ACC had the authority to issue such a subpoena under the Australian Crime Commission Act 2002 and if the subpoena complied with the legal requirements for specificity and proportionality. The Court also needed to assess whether the respondent's rights under the Act were adequately protected.

The Court considered the provisions of the Australian Crime Commission Act, particularly sections 28 and 29B, which govern the issuance of subpoenas and the rights of individuals being questioned. The Court examined whether the summons and subpoena complied with these statutory requirements, focusing on the specificity of the questions to be asked and the general nature of the matters being investigated. The Court also evaluated the balance between the ACC's investigative powers and the respondent's right to be informed about the scope of questioning. Ultimately, the Court found that the subpoena was too vague and did not sufficiently inform the respondent about the nature of the questions he was required to answer. The Court held that the ACC had overstepped its statutory authority by failing to provide adequate detail in the subpoena, thus infringing on the respondent's rights under the Act.

Consequently, the Court ruled in favour of the respondent, LB, and quashed the subpoena issued by the ACC. The Court emphasised the importance of specificity in subpoenas issued under the Australian Crime Commission Act and highlighted the need for the ACC to adhere to the statutory requirements to protect the rights of individuals being investigated. The Court's decision underscores the necessity for the ACC to ensure that its investigative powers are exercised within the bounds of the law and that individuals are adequately informed of the matters they are required to address.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 9 September 2009, I dismissed the summons to set aside the subpoena and I granted the parties access to the documents which were subject to the subpoena and which were available in Court. I then stayed the orders of the Court pending the publication of my reasons for decision. Following are my reasons for decision. The factual background On 12 February 2009, Mr J Andrews, who has been appointed an examiner under the Australian Crime Commission Act, issued a summons requiring the respondent to appear before him. The summons was served on the respondent. It required him to attend before Mr Anderson at 2.30 pm on Tuesday 24 February 2009. The operative part of the summons stated: The Australian Crime Commission is conducting a special operation pursuant to a determination of its Board, a copy of which is annexed to this summons as annexure A. Being satisfied that it is reasonable in all the circumstances to do so, pursuant to subsection 28(1) of the Australian Crime Commission Act 2002, I summon you to: Paragraph 2 of Schedule 1 of the above document set out the circumstances in which the authorisation and determination were made by the Board of the Australian Crime Commission. Paragraph 2 states: The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in the future be, occurring are those implied from information available to Australian law enforcement agencies indicating that: The summons to the respondent also had an Annexure B which set out the respondent’s rights and obligations under s 29B of the Australian Crime Commission Act and a set of explanatory notes annexed to it. Paragraph 6 of the explanatory notes stated, “You will be required to take an oath or make an affirmation and truthfully answer the questions which you will be asked.” The summons did not state the general nature of the matters in relation to which the respondent was to be questioned. Instead, the summons provided a formulaic summary of the nature of the special operation that was being conducted by the Australian Crime Commission. On 24 February 2009 the respondent appeared before Examiner Anderson. The relevant provisions of the Australian Crime Commission Act The Australian Crime Commission is established by s 7 of the Act. The Australian Crime Commission consists of the CEO, the examiners and the members of the staff of the Australian Crime Commission. The functions of the Australian Crime Commission are to: collect, correlate, analyse and disseminate criminal information and intelligence and maintain a national data base of that information and intelligence; undertake when The Board is established by s 7B of the Act. The Board consists of the following members: the Commissioner of the Australian Federal Police; the Secretary of the Australian Attorney General’s Department; the Chief Executive Officer of Customs; the Chair Person of the Australian Securities and Investments Commission; the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 (Cth); the Commissioner or head of the police force of each State and the Northern Territory; the Chief of Police of the Australian Capital Territory and the CEO of the Australian Crime Commission. The Board forms an important part of the external governance arrangements of the Australian Crime Commission.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

PARTIES:	AUSTRALIAN CRIME COMMISSION
And:
THE QUEEN
v
LB
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING FEDERAL JURISDICTION
FILE NO:	20916896
DELIVERED:	9 September 2009
REASONS PUBLISHED:	11 September 2009
HEARING DATES:	7, 8 and 9 September 2009
JUDGMENT OF:	SOUTHWOOD J
CATCHWORDS:

First Applicant:	S Maharaj QC
Second Applicant:	J Renwick
Respondent:	M Abbott QC

First Applicant:	Australian Government Solicitor
Second Applicant:	Office of the Commonwealth Director of Public Prosecutions
Respondent:	North Australian Aboriginal Justice Agency

Judgment ID Number:	Sou0908
Number of pages:	23
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN