AUSTRALIAN CRIME COMMISSION -v- MARRAPODI [2012] WASCA 103

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 103
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:117/2011	Heard:	16 NOVEMBER 2011
Coram:	MARTIN CJ McLURE P ALLANSON J	Delivered:	9/05/12
No of pages:	46	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
Category:	A
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Parties:	AUSTRALIAN CRIME COMMISSION DAVID FRANK MARRAPODI THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS STEPHEN JOHN WALLACE ANDREW REGINALD KEITH FAGAN
Catchwords:	Appeal Jurisdiction Application to set aside witness summons in criminal proceedings dismissed by District Court judge Whether right of appeal to Court of Appeal Construction of s 79(1) of the District Court of Western Australia Act 1969 (WA) Whether Criminal Appeals Act 2004 (WA) covers the field in relation to the appellate rights of a nonparty in criminal proceedings Criminal law Accused summoned to appear as a witness at an examination before an examiner of the Australian Crime Commission Accused charged with refusing to answer a question he was required to answer by the examiner Summons for the production of documents going to the validity of the witness summons Whether legitimate forensic purpose in production of documents Construction of s 28 and s 30 of the Australian Crime Commission Act 2002 (Cth) Whether service of valid summons an element of the offence or precondition to the exercise of the power to 'require' an answer and, if so, whether it is sufficient that the summons is valid on its face Whether open to accused to mount a collateral attack on the validity of the summons in criminal proceedings Operation of the presumption of regularity in criminal proceedings
Legislation:	Acts Interpretation Act 1901 (Cth), s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Crime Commission Act 2002 (Cth), s 7, s 7A, s 7B, s 7C, s 7C(3), s 7C(4), s 24A, s 25A, s 25A(1), s 25A(2), s 25A(3), s 25A(6), s 25A(9), s 25A(15), s 26, s 27, s 28, s 28(1), s 28(1A), s 28(5), s 28(7), s 28(8), s 29, s 29(1A), s 29(5), s 30, s 30(1), s 30(2), s 30(2)(a), s 30(2)(b), s 30(2)(c), s 30(4)(a)(ii), s 33, s 34, s 34A, s 36(3), s 57 Corruption and Crime Commission Act 2003 (WA), s 46, s 96, s 160 Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Appeals Act 2004 (WA), s 23, s 24, s 26 Criminal Code (Cth), s 3.1 Criminal Code (WA), s 611A(3) Criminal Procedure Act 2004 (WA), s 90, s 98, s 98(2), s 98(6), s 123(2), s 163, s 166, s 166(2) Criminal Procedure Rules 2005 (WA), r 34, r 34(3) District Court of Western Australia Act 1969 (WA), s 6(1), s 79(1), s 79(1)(b), s 79(3) Judiciary Act 1903 (Cth) Supreme Court Act 1935 (WA), s 58(1)(a), s 58(1)(m)
Case References:	A B Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296 Allbeury v Corruption and Crime Commission [2012] WASCA 84 Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 Australian Crime Commission v LB [2009] NTSC 43; (2009) 234 FLR 315 Australian Crime Commission v Magistrates Court (Vic) [2007] VSC 297; (2007) 69 ATR 173 Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356 C Incorporated v Australian Crime Commission [2010] FCAFC 4; (2010) 113 ALD 226 Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 Carter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASCA, Library No 930375, 15 July 1993) Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Connell v The Queen (No 5) (1993) 10 WAR 424 Corruption and Crime Commission v Wallace [2010] WASC 390 Day v The Queen [1984] HCA 3; (1984) 153 CLR 475 Duke v The Queen [1999] WASCA 215 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Gedeon v New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 GG v The Australian Crime Commission [2010] FCAFC 15; (2010) 182 FCR 513 JJ v Board of Australian Crime Commission [2011] FCAFC 73; (2011) 197 FCR 138 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Morse and Thompson v Harlock [1977] WAR 65 Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 Muir v The Queen [2006] WASCA 85 Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 Mustac v Medical Board of Western Australia [2007] WASCA 128 Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v LB [2010] NTSC 15 R v LB [2011] NTCCA 4; (2011) 246 FLR 466 Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Selby v Pennings (1998) 19 WAR 520 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 Tillman v Attorney-General (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 Walton v Gardiner (1993) 177 CLR 378

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AUSTRALIAN CRIME COMMISSION -v- MARRAPODI [2012] WASCA 103 CORAM : MARTIN CJ

McLURE P

ALLANSON J

HEARD : 16 NOVEMBER 2011 DELIVERED : 9 MAY 2012 FILE NO/S : CACV 117 of 2011 BETWEEN : AUSTRALIAN CRIME COMMISSION

Appellant

AND

DAVID FRANK MARRAPODI

First Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

FILE NO/S : CACV 118 of 2011 BETWEEN : AUSTRALIAN CRIME COMMISSION

Appellant

AND

STEPHEN JOHN WALLACE

First Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

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FILE NO/S : CACV 119 of 2011 BETWEEN : AUSTRALIAN CRIME COMMISSION

Appellant

AND

ANDREW REGINALD KEITH FAGAN

First Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAUDE DCJ

Citation : R -v- WALLACE [2011] WADC 138

File No : IND 369 of 2011, IND 385 of 2011, IND 386 of 2011

Catchwords:

Appeal - Jurisdiction - Application to set aside witness summons in criminal proceedings dismissed by District Court judge - Whether right of appeal to Court of Appeal - Construction of s 79(1) of the District Court of Western Australia Act 1969 (WA) - Whether Criminal Appeals Act 2004 (WA) covers the field in relation to the appellate rights of a nonparty in criminal proceedings

Criminal law - Accused summoned to appear as a witness at an examination before an examiner of the Australian Crime Commission - Accused charged with refusing to answer a question he was required to answer by the examiner - Summons for the production of documents going to the validity of the witness summons - Whether legitimate forensic purpose in production of documents - Construction of s 28 and s 30 of the Australian Crime Commission Act 2002 (Cth) - Whether service of valid summons an element of the offence or precondition to the exercise of the power to 'require' an answer and, if so, whether it is sufficient that the summons is valid on its face - Whether open to accused to mount a collateral attack on the validity of the summons in criminal proceedings - Operation of the presumption of regularity in criminal proceedings

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Legislation:

Acts Interpretation Act 1901 (Cth), s 25D

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Crime Commission Act 2002 (Cth), s 7, s 7A, s 7B, s 7C, s 7C(3), s 7C(4), s 24A, s 25A, s 25A(1), s 25A(2), s 25A(3), s 25A(6), s 25A(9), s 25A(15), s 26, s 27, s 28, s 28(1), s 28(1A), s 28(5), s 28(7), s 28(8), s 29, s 29(1A), s 29(5), s 30, s 30(1), s 30(2), s 30(2)(a), s 30(2)(b), s 30(2)(c), s 30(4)(a)(ii), s 33, s 34, s 34A, s 36(3), s 57
Corruption and Crime Commission Act 2003 (WA), s 46, s 96, s 160
Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth)
Criminal Appeals Act 2004 (WA), s 23, s 24, s 26
Criminal Code (Cth), s 3.1
Criminal Code (WA), s 611A(3)
Criminal Procedure Act 2004 (WA), s 90, s 98, s 98(2), s 98(6), s 123(2), s 163, s 166, s 166(2)
Criminal Procedure Rules 2005 (WA), r 34, r 34(3)
District Court of Western Australia Act 1969 (WA), s 6(1), s 79(1), s 79(1)(b), s 79(3)
Judiciary Act 1903 (Cth)
Supreme Court Act 1935 (WA), s 58(1)(a), s 58(1)(m)

Result:

Leave to appeal granted

Appeal dismissed

Category: A

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Representation:

CACV 117 of 2011

Counsel:

Appellant : Ms S J Maharaj QC & Mr R Hooker

First Respondent : Mr L M Levy SC

Second Respondent : Mr A G Elliott

Solicitors:

Appellant : Australian Government Solicitor

First Respondent : Alana Padmanabham

Second Respondent : Director of Public Prosecutions (Cth)

CACV 118 of 2011

Counsel:

Appellant : Ms S J Maharaj QC & Mr R Hooker

First Respondent : Mr L M Levy SC

Second Respondent : Mr A G Elliott

Solicitors:

Appellant : Australian Government Solicitor

First Respondent : Alana Padmanabham

Second Respondent : Director of Public Prosecutions (Cth)

CACV 119 of 2011

Counsel:

Appellant : Ms S J Maharaj QC & Mr R Hooker

First Respondent : Mr L M Levy SC

Second Respondent : Mr A G Elliott

Solicitors:

Appellant : Australian Government Solicitor

First Respondent : Alana Padmanabham

Second Respondent : Director of Public Prosecutions (Cth)

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Case(s) referred to in judgment(s):

A B Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296
Allbeury v Corruption and Crime Commission [2012] WASCA 84
Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83
Australian Crime Commission v LB [2009] NTSC 43; (2009) 234 FLR 315
Australian Crime Commission v Magistrates Court (Vic) [2007] VSC 297; (2007) 69 ATR 173
Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356
C Incorporated v Australian Crime Commission [2010] FCAFC 4; (2010) 113 ALD 226
Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
Carter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASCA, Library No 930375, 15 July 1993)
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Connell v The Queen (No 5) (1993) 10 WAR 424
Corruption and Crime Commission v Wallace [2010] WASC 390
Day v The Queen [1984] HCA 3; (1984) 153 CLR 475
Duke v The Queen [1999] WASCA 215
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Gedeon v New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
GG v The Australian Crime Commission [2010] FCAFC 15; (2010) 182 FCR 513
JJ v Board of Australian Crime Commission [2011] FCAFC 73; (2011) 197 FCR 138
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Morse and Thompson v Harlock [1977] WAR 65
Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117
Muir v The Queen [2006] WASCA 85
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94

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Mustac v Medical Board of Western Australia [2007] WASCA 128
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v LB [2010] NTSC 15
R v LB [2011] NTCCA 4; (2011) 246 FLR 466
Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172
Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Selby v Pennings (1998) 19 WAR 520
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Tillman v Attorney-General (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119
Wainohu v New South Wales [2011] HCA 24; 243 CLR 181
Walton v Gardiner (1993) 177 CLR 378

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MARTIN CJ

Summary

1 The substantive question in each appeal is whether summonses issued to the appellant requiring the production of documents to the court should be set aside on the ground that production of the documents would not serve any legitimate forensic purpose.

2 The circumstances giving rise to the appeals, and the issues canvassed in the course of argument are set out in the reasons to be given by the other members of the court, and need not be restated by me. Like the other members of the court, I conclude that there is a right of appeal, with leave, from the decisions of Staude DCJ refusing to set aside each summons, for the reasons given by McLure P, with which I agree. However, unlike the other members of the court, I would grant leave and allow the appeals, set aside the decisions of Staude DCJ, and set aside each summons to produce documents, for the reasons which follow.

The critical question

3 The critical question in each appeal is whether service of a valid summons to appear as a witness is an element of the offences with which each respondent has been charged. If it is not, then the documents specified in the summonses issued to the appellant are irrelevant, and their production would serve no legitimate forensic purpose.

4 It is of the utmost significance to the resolution of the critical question that each respondent has been charged with a number of offences contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth) (the Act); that each respondent

being a person appearing as a witness at an examination before an examiner of the Australian Crime Commission, refused to answer a question that he was required to answer by the examiner.

None of the respondents have been charged with the offence created by s 30(2)(a) of the Act of refusing or failing to comply with the requirement to take an oath or make an affirmation when appearing as a witness.

5 I agree with McLure P, for the reasons which she gives, that, as a matter of statutory construction, the expression '[a] person appearing as a witness at an examination' should not be read as confined to a witness who appears under compulsion of a summons, where that expression is
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used so as to define the ambit of the offence created by s 30(2)(b) of the Act.

6 However, I respectfully disagree with her Honour's conclusion that where, as a matter of fact, a person does attend an examination under compulsion of a summons purportedly issued pursuant to s 28 of the Act, the power of the examiner to require the witness to answer a question may depend upon proof of the validity of the summons. With respect, I am unable to see any aspect of the language used in s 30(2)(b) of the Act which supports a construction of the provision which would make the power of the examiner to require a witness to answer a question, where that witness has taken an oath or made an affirmation, depend upon proof of service of a valid summons to attend prior to the taking of the oath or making of the affirmation, in cases where a summons has in fact been issued, but not otherwise. Once the witness has appeared before an examiner and taken an oath or made an affirmation with respect to the evidence to be given by that witness, I can see nothing in the language of s 30(2)(b) or in the language of the section read in the context of the Act as a whole, nor any reason of public policy which supports the conclusion that the power of the examiner to require the witness to answer a question depends upon the validity of events which preceded the taking of the oath or affirmation.

7 The language of s 30(2)(b), read either on its own, or in the context of the Act as a whole, is consistent with a parliamentary intention to replicate the duties of witnesses appearing before courts. A witness appearing before a court after taking an oath or making an affirmation may be guilty of contempt of court if he or she refuses to answer a question which he or she is directed by the court to answer. The question of whether the witness appeared under compulsion of a summons, or voluntarily, is irrelevant to the obligation of the witness to answer questions, or to the liability of the witness in contempt if he or she refuses to do so, despite direction by the court. There is nothing in the language of s 30(2)(b) or the Act as a whole to suggest that Parliament intended that a different legal regime should govern witnesses appearing before the Commission.

8 I do not consider that the decision of the Court of Criminal Appeal of the Northern Territory in R v LB [2011] NTCCA 4, read in light of the principles enunciated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 compels a different conclusion. R v LB was

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concerned with the scope of the offence created by s 30(2)(a) of the Act of refusing or failing to comply with the requirement to take an oath or make an affirmation. The nature of that offence was central to the reasoning of the court. The court's conclusion that the power of an examiner to require a person to take an oath or affirmation depended upon the valid service of a summons to appear was supported by the observation that a person appearing voluntarily without a summons might change his or her mind before being required to take the oath or make an affirmation, in which event that person would no longer be appearing as a witness [62]. That process of reasoning has no application to the offence created by s 30(2)(b), which only arises after a person has complied with the requirement to take an oath or make an affirmation and has been required to answer a question. In that circumstance, there can be no question of the relevant person's status changing, by reason of change of mind. Nor can there be any basis for properly characterising a person who has taken an oath or made an affirmation as a person who is not 'appearing as a witness'. The decision of the Court of Criminal Appeal of the Northern Territory in

R v LB

is distinguishable from the issues that arise in these cases.

9 My earlier decision in Corruption and Crime Commission v Wallace [2010] WASC 390 is also distinguishable from the issues in these cases, and to that extent, the reliance placed upon that decision by the appellant was misplaced. In that case, after the close of evidence in the trial for the offence of contempt created by s 160 of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act), alleged to have been committed by failure to answer questions which the witness was required to answer, defence counsel submitted that the prosecution case had not been made out because of a failure to prove the facts which established the legal validity of an exceptional powers finding purportedly made pursuant to s 46 of the CCC Act. Under the CCC Act the Commission was empowered to issue a witness summons on an application of the Commissioner of Police after an exceptional powers finding had been made (see Wallace [30]). Accordingly, unlike the circumstances in R v LB, or of the present cases, the focus of the contention was not upon the issue of the witness summons, but upon a quite separate determination which preceded the issue of the summons. It was in that circumstance that I concluded that, as a matter of construction of the CCC Act, the fact of an exceptional powers finding provided a sufficient basis for the issue of a witness summons unless and until it was established in appropriately constituted proceedings that the exceptional powers finding was invalid. That case depended upon the proper construction and effect of the

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particular provisions of the CCC Act. The observations which I made in that case should be read and understood in that context, and not be given any broader application. Further, as my reasons were delivered immediately following the completion of oral argument, they should not be attributed with the precision of meaning which attends language used in a reserved decision.

10 For these reasons in my view the documents the subject of the summons issued by each respondent do not go to any relevant issue in the cases against that respondent. It follows that the appeals should be allowed and each summons should be set aside on the basis that production of the documents would not serve any legitimate forensic purpose.

11 McLURE P: These appeals are from an interlocutory judgment of Staude DCJ dismissing what were, in effect, applications by the appellant to set aside a summons to produce documents issued at the instance of each of the first respondents (the document summons). I agree with Allanson J that the appeals should be dismissed. These are my reasons for that conclusion.

12 The facts and background are detailed in the reasons of Allanson J. It is sufficient for present purposes to note the following. The first respondent in each appeal has been charged with various counts of refusing to answer a question at an examination as directed by an examiner of the Australian Crime Commission (the Commission) contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth) (the Act). The first respondent in each appeal had attended the examination pursuant to a summons issued by the examiner under s 28(1) of the Act (the witness summons).

13 The documents the subject of each document summons are the reasons for the issue of the witness summons and the statement of facts and circumstances and legal submissions in support thereof. The expectation is that these documents will facilitate an assessment of whether each witness summons is invalid on grounds that do not appear from the face of the witness summons.

14 The primary issues in the appeal are:

(1) is the appeal competent;

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(2) is the service on the witness of a summons under s 28(1) of the Act an element of a contravention of s 30(2)(b) of the Act;

(3) if yes, does the witness summons have to be 'formally' valid (on its face) and/or be otherwise valid.

15 Other matters canvassed in the appeal include whether a presumption of regularity applies to a summons issued under s 28(1) and, if so, does the witness have to satisfy an evidentiary or other onus and, if so, what.

16 The emphasis in the grounds of appeal and the appellant's written submissions is on 'legitimate forensic interest' and arises in this way. A summons to produce documents will be set aside if it has no legitimate forensic purpose, in the sense that the documents the subject of the summons have no apparent (adjectival) relevance to the issues the subject of the proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90, 103.

17 The appellant's primary position is that the documents the subject of each document summons have no legitimate forensic purpose because service of a witness summons is not an element of the offence of contravening s 30(2)(b) of the Act. Its fallback position is that if it is an element of the offence, all that has to be established in the criminal proceedings against each of the first respondents is that the witness summons is formally valid.

18 It was accepted by the parties that the issue of a summons by an examiner under s 28 of the Act is an administrative act which will be invalid (or invalidated) if the examiner has made a jurisdictional error of law. This involves a judicial review of the decision to issue the witness summons, not a merits review.

Competence of appeal

19 The parties accept that the decisions under challenge are interlocutory. On this court's jurisdiction to hear and determine the appeals, the appellant relies on s 79(1)(b) and s 79(3) of the District Court of Western Australia Act 1969 (WA) (DCA) and s 58(1)(a) and s 58(1)(m) of the Supreme Court Act 1935 (WA). Reliance on s 58(1)(a) is misconceived: Allbeury v Corruption and Crime Commission [2012] WASCA 84 [20] - [24].

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20 Section 79(1) of the DCA relevantly provides:

A party to an action or matter who is dissatisfied with -

…

(b) a judgment that is not a final judgment … may by leave of the Court of Appeal, appeal to the Court of Appeal.

21 The word 'judgment' is defined in s 6(1) of the DCA to include an 'order or other decision or determination of … a District Court judge'. The word 'party' is defined in s 6(1) to include a person 'attending a proceeding, although not named in the record'. The word 'matter' is defined in the same provision to mean 'a proceeding in the Court that is commenced otherwise than by writ'.

22 The scope and effect of s 79(1) of the DCA was considered by this court in Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172. In that case the judge presiding at a sentencing hearing made an order closing the court. A representative of West Australian Newspapers Ltd (WAN) inquired of the judge, through her associate, whether she intended to publish reasons for the order and the sentence imposed, providing authorities in support of the proposition that such a course was appropriate. At the direction of the trial judge, the WAN representative attended court the following day and, at the request of the trial judge, made submissions opposing (inter alia) the suppression of the previous day's proceedings. The trial judge declined to allow any further publication in respect of the criminal proceedings. WAN appealed against the suppression order. This court held that any application to a court, however informal, is a 'proceeding' [24]. Steytler P (with whom Roberts-Smith & McLure JJA agreed) continued:

In my opinion an application by a newspaper to vary or discharge a suppression order is 'a proceeding' for the purposes of the definition of 'matter'. An application of that kind is necessarily made by someone who is not a party to the proceeding in which the suppression order was made, but who nevertheless has the standing to bring it … Moreover, it seems to me that s 79(1)(b) was intended to have a wide operation [24].

23 Steytler P rejected a submission that a 'matter' refers to the primary proceedings in which an application is made rather than steps in, or incidental to, such proceedings [25]. In essence, the application to set aside the suppression order was not itself characterised as a criminal proceeding. This reasoning is equally applicable to an application by a non-party to set aside a summons, and that is so whether or not the
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application is made before or after the actual commencement of the criminal trial in question.

24 Thus, it is unnecessary to determine whether s 98 of the Criminal Procedure Act 2004 (WA) (CPA) is the source of the power exercised by Staude DCJ to determine the appellant's applications prior to trial. However, I doubt that it is. Section 163 of the CPA contemplates the pre-trial return of a summons to produce documents. Section 166 of the CPA is the source of the court's power to set aside a summons. It relevantly provides:

(1) On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it thinks fit.

25 Rule 34 of the Criminal Procedure Rules 2005 (WA) deals with pre-trial hearings. Rule 34(3) relevantly provides:

At a pre-trial hearing the court may -

(a) exercise any of its powers under the CPA section 98 … ;

…

(e) deal with the return of a witness summons to produce a record or thing;

(f) deal with an application to set aside a witness summons.

26 The structure of r 34 is consistent with the view that s 98 is not the source of the court's power to set aside a summons prior to trial.

27 On the reasoning in Kennedy, the appellant has a right of appeal, with leave, from the dismissal of its applications to set aside each document summons. That conclusion is consistent with the scope and effect of the Criminal Appeals Act 2004 (WA) (CAA). The CAA covers the field in relation to appeals from interlocutory and final decisions in criminal proceedings to which it applies. Generally, a party to a criminal proceeding has no right of appeal from an interlocutory decision unless and until there has been a conviction. However, the CAA does not cover the field in relation to the rights of a non-party to criminal proceedings, such as the recipient of a summons. Were it otherwise, a non-party recipient of a summons returnable in criminal proceedings would be deprived of any opportunity to appeal. Thus the appeals are competent under s 79(1)(b) and s 79(3) of the DCA.

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The remaining issues

28 What follows is a reference to the Act as it stood at the time each of the first respondents are alleged to have committed the relevant offences. Part II div 2 of the Act deals with examinations. Section 30 relevantly provides:

Failure of witnesses to attend and answer questions

Failure to attend

(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.

Failure to answer questions etc.

(2) A person appearing as a witness at an examination before an examiner shall not:

(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;

(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

(3) …

Use immunity available in some cases if self-incrimination claimed

(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:

(a) a person appearing as a witness at an examination before an examiner:

(i) answers a question that he or she is required to answer by the examiner; or

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(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

(b) …

(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5) …

Offence for contravention of subsection (1), (2) or (3)

(6) A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that … is punishable, upon conviction, by a fine … or imprisonment for a period not exceeding 5 years.

29 Section 30 refers to a summons in ways that are not internally consistent. Section 30(1) refers to '[a] person served, as prescribed, with a summons to appear as a witness at an examination'. Section 30(2)(c) and s 30(4)(a)(ii) refer to 'a summonsunder this Act served on him or her as prescribed'. There is no express reference to a summons in s 30(2)(a) and (b). On its face, the introductory language in s 30(2) is wide enough to refer to all persons appearing as a witness at an examination, whether pursuant to a summons or voluntarily.

30 The term 'witness' is not defined in the Act. In context it means a person who is to give, or is giving, evidence at an examination. Ordinarily, a person's status as a witness in judicial and other proceedings does not depend upon receipt of a summons compelling attendance.

31 The Act provides a number of protections for witnesses who give evidence at an examination under pt II div 2. The power to examine or cross-examine a witness at an examination by counsel assisting the examiner, any person authorised to appear and counsel for the witness is under the control of the examiner: s 25A(6). The examiner has the power to direct that any evidence given before the examiner at an examination be kept confidential: s 25A(9).

32 The Act makes it an offence to give knowingly false or misleading evidence at an examination before an examiner: s 33. Further, the examiner has the power to make arrangements necessary to avoid

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prejudice to the safety of a person who is to appear or is appearing at an examination before the examiner to give evidence: s 34.

33 None of these protections and offences are in terms confined to a witness who has been served with a summons under s 28. It would be a very odd result if these provisions had no application to a person who voluntarily gave sworn evidence at an examination before an examiner.

34 Section 36(3) also supports the conclusion that the expression 'a person appearing as a witness at an examination' is not confined to a witness who appears under compulsion of a summons. It provides:

Subject to this Act, a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the High Court.

35 The next related issue of statutory construction is the source of the obligation to answer a question put to a witness at an examination before an examiner.

36 Section 28 of the Act relevantly provides:

(1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons …

…

(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b) the examiner … may administer an oath or affirmation to a person so appearing at the examination.

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37 The power in s 28(5) is not in terms restricted to a witness compelled to attend an examination pursuant to a summons under s 28(1). Moreover, there is no express provision in s 28 or elsewhere compelling a witness to answer a question that he or she is required to answer by the examiner at the examination. Prima facie the source of that obligation is s 30(2)(b) itself. That is, although in form a prohibition, it is also the source of the obligation on a person appearing as a witness at an examination before an examiner to answer a question when so directed by the examiner, non-compliance with which is an offence under s 30(6).

38 The text of s 30 in the broader context of pt II div 2 as a whole, supports a conclusion that service of a summons under s 28(1) is not an element of the offence of contravening s 30(2)(b) of the Act.

39 However, that is not the end of the matter. In my view, it is arguable that if a person does attend at an examination under compulsion of a summons pursuant to s 28(1), the powers of the examiner in s 28(5) and s 30(2)(b) will not be enlivened if the initiating compulsory process that secures the person's attendance is invalid. That is, if a witness attends under compulsion of a summons, the validity of the summons is not an element of the contravention of s 30(2)(b) but is a condition of the power of the examiner to require that witness to answer a question. If it was necessary for the resolution of these appeals to determine this issue, I would so conclude. However, it is not necessary because all roads lead to the same result and the parties did not put their cases on this basis.

40 The construction I favour is inconsistent with that of the Court of Criminal Appeal of the Northern Territory in R v LB (2011) 163 NTR 1. The question in issue in that case was whether service of a valid summons is an element of the offence of contravening s 30(2)(a) of the Act. The court said it was. It reasoned:

The words in s 30(2), 'appearing as a witness', are apt to describe a person who has received a valid summons to so appear. When one turns to s 28(1), it is clear that the parliament intended to provide a power in an examiner to 'summon a person to appear before an examiner at an examination to give evidence'. Without such a power, an examiner could not compel attendance of a person to appear as a witness to give evidence …

In our opinion, the scheme of the Act contemplates that the power to insist upon the taking of an oath or affirmation means that a person can only be required or compelled to take the oath if the summons is valid. If the examiner had no power to issue the summons, it is difficult to see how a person is, in terms of s 28(2), required to appear before an examiner at an

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examination and, unless he is so compellable, in our opinion, he is not 'appearing as a witness'. Even if a person did appear voluntarily without a summons, that does not mean that the witness could be required to be sworn. The witness may change his or her mind. His or her status as a witness would then change; the person would no longer be appearing as a witness [61] - [62]. (emphasis in original)

41 On this reasoning, a person appearing at an examination is only a witness if they have been served with a summons under s 28(1). The summons must also be valid. On that view, it must follow that the service of a valid summons is an element of the offence of contravening s 30(2)(b). This court can only depart from R v LB if convinced that it is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. Although I differ from the Northern Territory Court of Criminal Appeal on the proper construction of s 30(2) of the Act, I am not convinced it is plainly wrong.

42 For the reasons given by Allanson J, the decision of the Full Court of the Federal Court in JJ v Board of Australian Crime Commission (2011) 197 FCR 138 is not inconsistent with R v LB on the subject of the proper construction of s 28 and s 30(2) of the Act.

43 However, the Court of Criminal Appeal in R v LB was not called upon to consider the appellant's fallback position which is that all the Act requires is for the summons to be valid on its face. Further, no consideration was given to whether or not the prosecution could rely on the presumption of regularity, a matter considered in some detail by the Full Court in JJ.

44 The appellant (in its fallback position) does not contend that the fact of service of a summons purportedly issued under s 28(1) meets the requirements of the Act. I see no proper basis in the language of s 28 and s 30 to sustain such a proposition. The next issue is whether all that is required is for the summons be valid on its face. The requirement for formal validity appears to have developed in the context of search warrants (George v Rockett (1990) 170 CLR 104, 111; Morse and Thompson v Harlock [1977] WAR 65, 72, 77) and extended to other types of warrants, including those required under listening devices legislation: Murphy v The Queen (1989) 167 CLR 94; Ousley v The Queen (1997) 192 CLR 69.

45 The policy basis for the requirement that a warrant be valid on its face is the protection of fundamental common law rights of the person

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named in the warrant (the subject):

Morse

(77). However, there is no clear statement in the authorities that if a warrant is valid on its face, the subject cannot go behind it to establish actual jurisdictional error. Indeed such a proposition is inconsistent with

Ousley

. A majority (Toohey, Gaudron & Gummow JJ) in

Ousley

limited a collateral challenge in the criminal trial to jurisdictional errors appearing on the face of the warrant. But that did not exhaust the appellant's review rights. Any other claim of jurisdictional error had to be litigated in separate judicial review proceedings (if still available):

Ousley

(130 - 131) (Gummow J).

46 However, it cannot have been intended that separate judicial review proceedings are required in cases where a valid administrative act is an element of the offence charged (or is a condition of the availability of a power on which the offence depends). See Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120 [22]. Ousley and Murphy concerned the admissibility in a criminal trial of evidence obtained pursuant to a warrant issued under listening devices legislation. If the warrants were invalid, the relevant evidence would have been illegally obtained. That in turn was relevant to the admissibility of the evidence in the criminal trial. Even if the evidence should not have been admitted, the conviction may, not must, be set aside. I agree with Allanson J that the law is too widely stated by the Chief Justice in Corruption and Crime Commission v Wallace [2010] WASC 390 [40].

47 The existence and service of a summons are questions of fact. However, the validity of the summons is a question of law. Whether the presumption of regularity (or validity) applies to an element of an offence has not been authoritatively determined: Selby v Pennings (1998) 19 WAR 520; JJ [80] - [84]. See also Day v The Queen (1984) 153 CLR 475, 484 - 485, 489. If it does, the accused would bear an evidentiary onus only: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 [151] (Hayne J). I see no basis in principle to support a claim that a legal burden shifts to an accused in those circumstances.

48 My preliminary view is that if, as in this case, a summons under s 28(1) of the Act is valid on its face, the presumption of regularity arises and will be displaced if each of the first respondents satisfy an evidential burden. However, this issue was not fully ventilated in the appeal because it would not alter the result. If each of the first respondents bear an evidentiary burden on the matter of the validity of the summons, that too would support the primary judge's finding that they had a legitimate forensic interest in the documents the subject of each document summons.

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49 ALLANSON J: Mr Marrapodi, Mr Wallace and Mr Fagan (whom I will refer to as the respondents) faced trial in the District Court on charges against the Australian Crime Commission Act 2002 (Cth). Each respondent applied to the District Court to issue a witness summons requiring the Australian Crime Commission (ACC) to produce specified documents to the court. Following a hearing, the trial judge ruled that the respondents have a legitimate forensic interest in the production of the documents. The ACC seeks leave to appeal that decision.

50 The application raised several issues, including the competency of the appeal. For the reasons which follow, I find that the appeal is competent but I would dismiss it as, in my opinion, the respondents have a legitimate forensic interest in production of the documents sought.

51 I assume, from the way this matter has proceeded, with the respondents issuing summonses to produce documents, that the ACC is not the organisation which investigated the alleged offences and documents in its possession do not come within the prosecutor's obligation of disclosure.

Background

52 Each respondent was served with a summons issued under s 28 of the Australian Crime Commission Act requiring him to appear as a witness before the ACC. To avoid confusion, I will refer to the 's 28 summons', to distinguish it from the summons to produce which was served on the ACC.

53 The s 28 summonses to the respondents were not included in the appeal books, but a copy of the s 28 summons to Mr Fagan was provided to the court. It was issued on 23 September 2009 by an examiner appointed under s 46B of the Act. It addressed the respondent and stated:

The Australian Crime Commission is conducting a special investigation 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:

(a) attend at 10.00 am on Monday 5 October 2009 before an examiner at an examination to be held for the purposes of the said special investigation at the Australian Crime Commission, National Law Enforcement House, 619 Murray Street, West Perth WA to give evidence of federally relevant criminal activity involving serious

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organised crime identities such as members and associates of outlaw motorcycle gangs, including your knowledge of any and all persons who may have been, may presently be, or may in the future be, involved in the commission of federally relevant criminal activity as set out in schedule 1, item 3 'allegations' of the attached (annexure A) 'Australian Crime Commission and authorisation and determination'; and

(b) attend from day to day unless excused or released from further attendance.

54 The annexed determination, consistently with s 7C(4) of the Australian Crime Commission Act, describes the general nature of the allegations.

55 It is not in dispute that each respondent was served with a s 28 summons in substantially the same terms as that given to Mr Fagan, attended as required, and took an oath or affirmation. It is alleged that each respondent refused to answer questions that the examiner then required him to answer. With regard to each refusal, the respondent is charged under s 30(2) of the Australian Crime Commission Act that he

being a person appearing as a witness at an examination before an examiner of the Australian Crime Commission, refused to answer a question that he was required to answer.

Mr Marrapodi and Mr Wallace each face five charges, and Mr Fagan faces four. The charges are to be tried in the District Court of Western Australia.

56 Each respondent applied to the District Court to issue a witness summons to the ACC under the Criminal Procedure Act 2004 (WA), requiring it to produce the following (the summons to produce):

1. The reason for the issuing of the [s 28 summons] compelling [the respondent] to attend before the ACC.

2. Statement of facts and circumstances prepared in support of the issue of the [s 28 summons].

3. Record of legal submissions in support of the issue of the [s 28 summons].

57 The reference to 'the reason for the issuing of the [s 28 summons]' relates to the requirement under s 28(1A) of the Australian Crime Commission Act that the examiner record in writing the reasons for the issue of a s 28 summons.

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58 In answer to the summons to produce, the ACC produced copies of the documents called for, but with parts of those documents masked. The ACC objected to producing the masked parts on the grounds of public interest immunity and legal professional privilege.

59 The District Court conducted a hearing under s 98 of the Criminal Procedure Act on 25 July 2011 to determine two issues:

1. Did the accused have a legitimate forensic interest in the production of the redacted portions of the documents?

2. If so, are the redacted portions protected from production by the ACC on the basis of public interest immunity and/or legal professional privilege.

The legislative framework

The Australian Crime Commission Act

60 The ACC is established by s 7 of the Australian Crime Commission Act. It consists of the CEO, the examiners appointed under s 46B, and the members of the staff of the ACC.

61 The functions of the ACC (set out in s 7A) include investigating, when authorised by the Board of the ACC, matters relating to federally relevant criminal activity.

62 Section 7B establishes the Board of the ACC. Its functions under s 7C include:

(c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;

(d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;

63 The Board may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so it must consider whether ordinary methods of police investigation into the matters are likely to be effective: s 7C(3).

64 Part II, div 2 of the Act is headed 'Examinations'. Under s 24A, an examiner may conduct an examination for the purposes of a special

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ACC operation or investigation. Section 25A concerns the conduct of examinations:

1. An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit: s 25A(1);

2. A person giving evidence may be represented by a legal practitioner: s 25A(2);

3. Examinations must be held in private: s 25A(3);

4. A witness may be examined and cross-examined 'on any matter that the examiner considers relevant to the ACC operation/investigation': s 25A(6);

5. The examiner may direct that certain matters must not be published. These include evidence, information that may enable a person who has given evidence to be identified, and the fact that a person has given or may be about to give evidence before an examination: s 25A(9);

6. At the conclusion of an examination, the examiner must give a record of the proceedings of the examination and any documents or things given to the examiner at or in connection with the examination, to the head of the special ACC operation/investigation: s 25A(15).

65 A witness appearing before an examiner is entitled to paid in respect of the expenses of his or her attendance (s 26); and a witness who is appearing or about to appear before an examiner may apply to the Attorney General for the provision of legal and financial assistance (s 27).

66 Section 28 deals with the power to summons a witness and take evidence, and s 30 with the failure of a witness to attend and answer questions. Before considering those sections in more detail, it is convenient to identify other provisions relating to witnesses before an examiner.

67 A person shall not, at an examination before an examiner, give false or misleading evidence: s 33. The examiner may make arrangements to avoid prejudice to the safety or any person who is to appear, is appearing or has appeared at an examination to give evidence or to produce a document or thing, or to protect such a person from intimidation or harassment: s 34.

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68 A person is in contempt of the ACC if he or she, when appearing as a witness at an examination before an examiner:

1. refuses or fails to take an oath or affirmation when required to do so under s 28; or

2. refuses or fails to answer a question that he or she is required to answer by the examiner: s 34A.

69 Under s 36(3) a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the High Court. Although the provision refers both to a person summoned and a person appearing, I doubt that anything can be read into the distinction. It may reflect nothing more than that the law protects a person who is to be a witness, as well as providing immunity and protection for a person in relation to their testimony.

70 I return to s 28. At the time of the issue of the s 28 summonses to the respondents it provided:

(1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(a) before the issue of the summons; or

(b) at the same time as the issue of the summons; or

(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set

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out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.

(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.

(6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.

(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.

(8) A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:

(a) subsection (1A) of this section, in so far as that subsection relates to the making of a record;

(b) subsection (2) of this section;

71 In 2010, by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (No 4 of 2010), s 28 was amended to the form it is in now: par (c) of s 28(1A) has been repealed, and subsection (8) now reads:

A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.

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72 Section 29 provides a similar power for the examiner, by notice in writing, to require a person to attend and produce specified documents or things. The requirements for the issue of a s 28 summons and a s 29 notice are the same.

73 Section 30 provides:

(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.

(2) A person appearing as a witness at an examination before an examiner shall not:

(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;

(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

(3) Where:

(a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and

(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.

(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things

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produced at an examination before an examiner. That subsection only applies if:

(a) a person appearing as a witness at an examination before an examiner:

(i) answers a question that he or she is required to answer by the examiner; or

(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

(b) in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and

(5) The answer, or the document or thing, is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty;

other than:

(d) a proceeding in respect of:

(i) in the case of an answer - the falsity of the answer; or

(ii) in the case of the production of a document - the falsity of any statement contained in the document.

(6) A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

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(7) Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(8) Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.

(9) Subsection (3) does not affect the law relating to legal professional privilege.

74 The Administrative Decisions (Judicial Review) Act 1977 (Cth) applies, with modification, to matters arising under the Act: Australian Crime Commission Act s 57. The modification imposes a significant restriction: an application for review must be lodged within the period of five days after the day on which the applicant becomes aware of the matter. The court may allow further time in special circumstances.

75 Decisions under s 28 of the Australian Crime Commission Act may also be reviewed by way of the constitutional writs under the Judiciary Act 1903 (Cth): see, for example, GG v The Australian Crime Commission [2010] FCAFC 15; (2010) 182 FCR 513.

The decision below

76 In answer to the summons to produce, the ACC produced partially masked copies of the required documents. It filed an affidavit setting out its objections and the reasons for its objections in relation to each masked part. In his reasons, the trial judge said that the objections were based on the following matters, which were deposed to in the affidavit:

1. The information redacted from the [s 28 summons] documents would reveal the breadth and scope of the intelligence holdings of various investigative agencies, including the ACC, and as a result prejudice ongoing and future investigations.

2. The disclosure of the confidential information would be extremely injurious to the public interest as it would pose a serious risk to ongoing and future investigations into serious and organised crime (for reasons which are disclosed only to the court).

3. The redacted portions of the legal submissions contain confidential communications of legal advice from a qualified independent legal practitioner employed by the ACC to the examiner.

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77 The first issue for his Honour was whether the respondents had a legitimate forensic interest in the production of the documents.

78 The prosecution conceded, on the authority of R v LB [2011] NTCCA 4; (2011) 246 FLR 466, that a legitimate forensic interest existed if the accused disputed the validity of the s 28 summons. The ACC made no such concession. It submitted that the respondents had no legitimate forensic interest in production of the documents, as the s 28 summons could not be challenged at trial. The ACC relied upon a decision of the Full Court of the Federal Court in JJ v Board of Australian Crime Commission [2011] FCAFC 73; (2011) 197 FCR 138 (JJ v ACC), which distinguished R v LB, but which is inconsistent in important respects with the reasoning in R v LB.

79 The trial judge regarded R v LB as highly persuasive authority and accepted the respondents' contention that they have a legitimate forensic interest in the production of the documents. He then determined the ACC's objections to production based on public interest immunity and legal professional privilege, and upheld those objections in part.

80 The appellant challenges only the decision that the respondents have a legitimate interest in the production of the documents. It does not challenge the findings of the trial judge regarding the extent of immunity and privilege.

The appeal

81 Appeals from superior courts in criminal matters are generally governed by pt 3 of the Criminal Appeals Act 2004 (WA). There is, however, no provision in that Act for an appeal other than by a person convicted of an offence (s 23), and the prosecutor (s 24). The Actdoes not provide for an appeal from interlocutory orders in criminal matters other than orders relating to a separate trial of charges joined in one indictment (s 26). Accordingly, if there is an appeal, it must lie under s 79 of the District Court of Western Australia Act 1969 (WA).See Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119.

82 Before the enactment of the Criminal Appeals Act, this Court held that ch 69 of the Criminal Code (WA) was an exclusive statement of the rights of appeal in proceedings by the Crown relating to an indictable offence and governed by the Criminal Code: see Connell v The Queen (No 5) (1993) 10 WAR 424, 452, 457; Duke v The Queen[1999] WASCA 215. In Muir v The Queen [2006] WASCA 85, Wheeler JA dismissed as incompetent an application by an accused for leave to appeal

(Page 30)

from an interlocutory decision refusing a permanent stay of proceedings pursuant to s 90 of the

Criminal Procedure Act

. Her Honour clearly accepted that the

Criminal Appeals Act

, like ch 69 of the

Criminal Code

which it replaced, stated exclusively an accused person's rights of appeal.

83 There are three relevant earlier decisions of this court which support the argument that proceedings on an objection by a witness to a subpoena or witness summons are not proceedings to which the Criminal Appeals Act applies.

84 In Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, the appellant sought to appeal an order that he pay the costs of the recipient of a subpoena following a decision that the subpoena should be set aside as oppressive. Relevantly, the court held that an application to set aside a subpoena invokes the inherent jurisdiction of the court to prevent an abuse of its process. It takes its character from the 'underlying proceedings', so that the orders made to set aside subpoenas issued by the accused were orders made in a criminal cause or matter because of the criminal character of the underlying proceedings. Malcolm CJ (Franklyn J agreeing) noted that the parties appeared to have assumed that an appeal lay from the decision on costs, but found it was not necessary to decide whether that was correct (180). Rowland J also expressed reservations regarding the court's jurisdiction to hear an appeal (185).

85 InCarter v The Managing Partner, Northmore Hale Davy & Leake (Unreported, WASCA, Library No 930375, 15 July 1993),the appellant appealed from an order upholding objections by the recipients of subpoenas duces tecum to the production of specified documents. Again the court did not determine whether the appeal was competent. Malcolm CJ said:

No point was taken by the respondents concerning the competency of this appeal. The appeal is from an order made setting aside writs of subpoena duces tecum on the grounds of oppression. The order was made in the course of criminal proceedings by the Crown against the appellant. In particular, the order was made in the context of proceedings under s 611A of the Criminal Code although it may well have been made in the exercise of the inherent jurisdiction of the Court to prevent an abuse of its process. There is a question whether the issue of a writ of subpoena in connection with criminal proceedings by the Crown is an originating process to compel the attendance of a witness and, in the case of a subpoena duces tecum, for the witness also to produce documents, or whether the issue of the subpoena is merely an interlocutory step in those proceedings. Where an objection is made to the production of documents on the ground of legal

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professional privilege and upheld the order to set aside the subpoena could be in the nature of a final order as between the party issuing the writ and the party to whom it is addressed. None of these matters were canvassed before us. So regarded, the proceedings, although ancillary to the criminal proceedings and take their colour from them as a step taken in a criminal cause or matter as discussed in my judgment in

Carter v The Managing Partner, Mallesons Stephen Jaques

, unreported; CCA SCt of WA; Library No 930374, 15 July 1993 (Appeal No 163 of 1992. This being so it is arguable that the only relevant rights of appeal are those given to the accused and the Crown in s 688 and 692 of the Criminal Code. If this is correct the appellant may have had an alternative remedy open by way of independent proceeding for a declaration the determination of which would be subject to appeal.

If the appellant has a right of appeal to the Full Court against the order made by the learned Judge the right is created by s 58(1)(b) of the Supreme Court Act 1935: cf Lim v Gregson (1989) WAR 1. In the circumstances, particularly as we did not have the benefit of detailed argument on the point I am prepared to decide the case on the assumption that the appellant has such a right.

86 Rowland J gave reasons to the same effect:

No question arose during the hearing about the jurisdiction of this Court to hear the appeal. That is attended by doubt because the matters arose in an application under s 611A

Criminal Code

and it is arguable that there is no right of appeal in these circumstances. It is unnecessary for me to pursue this matter because in the event the applicant's arguments have not succeeded. It is arguable also that where, as is the case here, the respondents were seeking to uphold their common law right to privilege that they could have achieved that result by seeking declaratory relief unrelated to the trial of the applicant in which case an appeal would lie.

87 In Connell v The Queen, the appellant sought to appeal from an order refusing a stay of the proceedings against him, alternatively against the refusal of an adjournment. The court held the appeal was incompetent. It explained the earlier decisions which had left open the possibility of a right of appeal. Malcolm CJ said:

In neither case was it necessary to decide the point. Assuming, without deciding, that there is such a right, it would be found to have been created in s 58(1)(b) of the

Supreme Court Act

. The recognition of such a right would not involve recognition of any right of appeal, as asserted by the appellant in this case, in relation to the residue of orders and decisions in criminal proceedings not covered by the rights of appeal in the

Criminal Code.

A writ of subpoena is an originating process by which proceedings to compel the attendance of a witness to testify or to produce documents may be commenced, albeit the proceedings may be regarded as ancillary proceedings and involving a step in the principal proceedings. They are

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not themselves criminal proceedings by the Crown which are governed by the

Criminal Code

. Neither the

Criminal Code

or the

Criminal Practice Rules

have anything to say about proceedings commenced by the issue of a writ of subpoena (452).

88 Similarly, Rowland J said:

The Crown had no interest in those proceedings which, in the event, were resolved on the basis that the recipients of the subpoenas objected to producing documents which were the subject of legal professional privilege. Albeit that the initiating process was heard under s 611A of the

Criminal Code

, the proceedings were, in effect, proceedings by witnesses to enforce their common law rights to maintain privilege. When the matter came on appeal, the question of jurisdiction was not argued. It is not necessary to decide the matter; but it seems to me that although the proceedings arose in a criminal cause or matter, they were dealt with on the basis that was quite distinct from the trial itself. That cannot be said of this matter (457).

89 The current legislative regime differs from that in 1993. The changes wrought by the Criminal Procedure Act are highlighted by comments of Malcolm CJ in Carter v Mallesons Stephen Jaques (167), where his Honour referred to the lack of any statutory provision relating to subpoenas in criminal cases in Western Australia. That gap has now been filled by pt 5, div 7 of the Criminal Procedure Act. The Act provides for the issue of a summons to a witness, the content of a summons, service of a summons, and the procedure to be followed, both when the witness attends and when the witness does not.

90 Under s 166, the court, on application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, may cancel a summons, wholly or in part on any terms it thinks fit. Proceedings under s 166 may constitute a distinct matter. For example, s 166(2) provides for the court to order costs on an application to cancel a summons. This is an express exception to the general rule in s 123(2) that a superior court cannot order a party to a case to pay another party's costs of or relating to proceedings in the court that relate to a charge in an indictment.

91 On the other hand, an application in relation to a summons is determined under s 98(2):

At any time before the accused's trial begins, the court -

(a) may determine any question of law or procedure, give any direction, or do any other thing, that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable;

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(b) may deal with any application made by a party under this part, part 5 or schedule 3.

92 Proceedings under s 98(2) 'are to be taken to be part of the accused's trial': s 98(6).

93 Were the matter free from authority, I would prefer the view that, as part of a criminal trial, proceedings under s 98(2) are governed by the Criminal Appeals Act, even where they may be characterised as a separate issue between the witness and the party who caused the summons to issue. That is particularly so in a case like the present, where the witness submits that the accused has no legitimate interest in production of documents because they are not relevant to the trial. The question of relevance would normally be a matter between the Crown and the accused. And a ruling by the trial judge on relevance should normally be challenged only after verdict.

94 There was, however, a provision similar to s 98(5) of the Criminal Procedure Act in s 611A(3) of the Criminal Code. The court in Connell, and in the two Carter decisions, did not see s 611A(3) as affecting the result. Even though the proceedings to set aside a summons were part of the trial, they were accepted as not themselves criminal proceedings by the Crown, so that rights of appeal were not confined to those in the Criminal Code.

95 Accordingly, I accept the appellant's submission that it has an appeal by leave under s 79 of the District Court of Western Australia Act. It is not necessary to decide in this application whether an accused also has a right of appeal in similar circumstances.

Should leave be granted

96 The appeal raises important questions that should be determined. I am satisfied that leave should be granted.

The grounds

97 There are four grounds of appeal:

1. The learned judge misconstrued s 30(2) [of the Act] and misconceived the elements of the offence created by the said provision.

2. The learned judge erred in determining whether 'legitimate forensic interest' had been made out in respect of the summons.

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3. The learned judge erred by following reasoning of the Court of Appeal (NT) in

R v LB

[2011] NTCCA 4; (2011) 163 NTR 1 on whether 'legitimate forensic interest' had been made out in respect of the summons.

4. The learned judge erred in failing to follow the reasoning of the Full Court of the Federal Court in JJ v Board of Australian Crime Commission [2011] FCAFC 73; (2011) 122 ALD 12.

98 In written submissions the appellant summarised these grounds to two contentions:

1. There is no legitimate forensic purpose as the documents do not go to any element of the charge under s 30(2)(a) of the Act. A challenge to the satisfaction of the examiner formed under s 28 in a s 30(2) prosecution amounts to a collateral attack and is impermissible as this point does not go to any enunciated element of a s 30(2)(b) offence.

2. Any attack on the validity of the summons that goes behind the face of the summons issued under s 28 of the Act on the basis that the process in issuing that summons was faulty constitutes a collateral attack of the type not permitted in these criminal proceedings.

Can the respondents challenge the validity of the summons

99 The appellant's primary argument is relatively straightforward. The offence under s 30(2)(b) of the Australian Crime Commission Act has physical elements and fault elements: Criminal Code (Cth) s 3.1. The physical elements are:

1. That the accused appeared as a witness at an examination before an examiner.

2. The accused was required pursuant to s 28 to answer a question.

3. The accused refused or failed to comply with that requirement.

100 The appellant submits that the validity of the summons is not an element of the offence charged. It goes further and submits that whether the person appearing as a witness at an examination was summoned (validly or otherwise) is irrelevant to proof of the offence. A witness may appear voluntarily and without summons and is equally subject to s 30(2) and obliged to answer any question they are required to answer by the examiner. In that respect, there is a distinction from the offence created
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by s 30(1) where, expressly, an element of the offence is that a person has been served with a summons to appear as a witness.

101 There are, of course, some legal preconditions to the power of an examiner to require a person to answer questions. The person must be appearing at an examination before an examiner. And an examiner may only conduct an examination for the purpose of a special ACC operation/investigation: s 28(7). But is the issue of a valid summons a precondition to examiner having power to require a witness to answer a question? This is, essentially, a question of construction.

102 An examiner's authority comes from and cannot extend beyond that granted by the Australian Crime Commission Act. An examiner may conduct examinations only for the purposes of a special ACC operation/investigation: s 24A. Before determining that an operation or investigation is to be a special operation or investigation, the Board of the ACC must consider whether ordinary methods of police investigation into the matters are likely to be ineffective: s 7C(3). That is, the Act contemplates an examination only where extraordinary compulsory powers are called for.

103 Further, while s 25A provides generally for the conduct of an examination, including who may examine and cross-examine a witness, the power to require a person to take an oath or affirmation is found in s 28. Section 28, read as a whole, is directed to persons appearing under summons.

104 There is authority that the expression 'a person appearing as a witness at an examination' in s 30(2)(a) refers to a witness who attends under a valid summons, and the power to require a witness to take an oath or affirmation is exercisable only where the witness is validly summoned.

105 The first relevant case is a single judge decision in Australian Crime Commission v Magistrates Court (Vic) [2007] VSC 297; (2007) 69 ATR 173. Mr Michael Brereton, the second defendant in that case, was summoned to appear before an examiner. He attended but refused to be sworn or make an affirmation and was charged under s 30(2)(a) of the Act. Mr Brereton issued subpoenas directed to the ACC calling for the production of documents relevant to the issue of the s 28 summons. At committal proceedings, the magistrate rejected an application to have the subpoenas struck out. The magistrate referred to the concern of Mr Brereton that there was no record as to whether or not the examiner had put his reasons in writing.

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106 The ACC sought orders quashing the decision of the magistrate on several grounds, including that the magistrate erred in finding that the subpoenas had a legitimate forensic purpose. The Supreme Court of Victoria dismissed the application. Smith J noted that counsel for the ACC had conceded that the existence of a document recording the reasons of the examiner for issuing the examination summons 'was a condition precedent to the valid exercise of the power to issue the examination summons'. His Honour considered that concession was properly made.

107 His Honour also said:

Counsel also submitted that the validity of the examination summons was not a relevant issue in the proceedings because a valid examination summons was not a precondition to the obligation to give evidence. Counsel submitted that anyone who happened to be present before an examiner could be required to give evidence on oath or affirmation. Counsel submitted that once Brereton chose to attend, the validity of the summons ceased to be relevant. Without going into the highly questionable merits of this argument, it requires that the reality of the case be ignored. The reality of this case is, and was, that Brereton was summonsed to attend an examination. There is and was no evidence that he voluntarily attended. Plainly he attended in response to the summons and the refusal to be sworn or to affirm was in response to that summons. Its validity could be raised by Brereton as an issue [10].

108 His Honour found that Mr Brereton was entitled to put in issue, as a precondition to the validity of the summons, whether a document containing reasons for issuing it was in existence at or prior to its issue. His Honour does not appear to have been concerned with the content of the reasons of the examiner, but with whether a record existed at all.

109 At the time of this decision, s 28(1A) provided:

Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.

There was no provision equivalent to s 28(8) either as it was at the time of issue of these summonses, or as it now stands. Later Federal Court authority on the effect of s 28(8) does not question the correctness of Smith J's conclusion.

110 In Australian Crime Commission v LB [2009] NTSC 43; (2009) 234 FLR 315, the respondent had been charged with an offence under s 30(2)(a), and sought to subpoena documents from the ACC including

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the reasons of the examiner for being satisfied that it was reasonable to issue the summons to him. The ACC applied to set aside the subpoena on the basis that there was no legitimate forensic purpose for the issue of the subpoena, and it was in the public interest not to disclose some parts of the documents sought. Its submissions were, in several respects, similar to those put before this court. In particular, the ACC submitted that the respondent had no legitimate forensic purpose for seeking the documents: he could not attack the summons in the criminal proceedings because the validity of the summons did not go to any element of the charge under s 30(2)(a), and because an attack that sought to go behind the face of the summons was a collateral attack of a type not permitted in the proceedings. Southwood J did not accept either submission. His Honour held (at [36] - [40]) that the validity of an administrative act could be challenged in criminal proceedings if it was beyond the statutory power of the person who performed it:

Gedeon v New South Wales Crime Commission

[2008] HCA 43; (2008) 236 CLR 120 [23];

Ousley v The Queen

[1997] HCA 49; (1997) 192 CLR 69, 79 - 80, 87, 105, 124, and 147 - 148;

Selby v Pennings

(1998) 19 WAR 520. In particular, his Honour held that principles which had been developed in relation to collateral attack on warrants did not apply to the challenge to the administrative act of issuing the summons. There was no appeal from the decision.

111 In R v LB [2010] NTSC 15, Southwood J considered a further application by the same accused for relief that included a permanent stay of the prosecution. His Honour permanently stayed the proceeding on the ground that the summons to the accused was invalid and the examiner thus lacked jurisdiction to require the accused to take an oath or make an affirmation. His Honour held:

According to the text of s 28(1A) of the Act, and what is necessarily implied into the subsection, the following conditions apply to the issue of a summons by an examiner:

1. There must be bona fide and rational reasons for the issue of a summons to a particular person in respect of a specific special ACC operation/investigation.

2. The examiner must record in writing the reasons for the issue of the summons to the person.

3. Before issuing the summons the examiner must be satisfied that it is reasonable in all the circumstances to do so [53].

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112 His Honour continued:

Both the first and third conditions are essential and indispensable requirements for the issue of a valid summons under the Act. If they are not fulfilled the summons issued by an examiner will be invalid and an examiner will not have jurisdiction to require a person who appears at an examination in response to the summons to take an oath or make an affirmation. If a person is not lawfully required to attend at an examination, he cannot be required to take an oath or make an affirmation at the examination [56].

113 On appeal, the Court of Criminal Appeal of the Northern Territory upheld the decision. In a unanimous decision, the court concluded:

Counsel for the appellant submitted that if the legislature had intended to make the service of a summons an element of an offence against s 30(2), it would have inserted words similar to the form of words used in s 30(1). However, in our opinion it is clear that s 30(1) and s 30(6) are intended to deal with the specific problem of punishing a person who fails to answer a summons, as a means of compelling attendance. Section 30(2) is intended to deal with the situation where a person who has been summoned to appear as a witness, fails to either take the oath or make an affirmation. The words in s 30(2), 'appearing as a witness', are apt to describe a person who has received a valid summons to so appear. When one turns to s 28(1), it is clear that the Parliament intended to provide a power in an examiner to 'summon a person to appear before an examiner at an examination to give evidence'. Without such a power, an examiner could not compel attendance of a person to appear as a witness to give evidence. Once the witness has appeared at an examination, s 28(5) empowers the examiner to require 'a person appearing at the examination' to give evidence on oath or affirmation. However, the power to compel attendance is conditioned upon a valid summons, which depends upon the examiner 'being satisfied that it is reasonable in all the circumstances' to issue the summons. Not every person in the world is a compellable witness. The purpose of s 28(1A) is to provide the foundation for compellability, ie that the examiner must be satisfied that it is reasonable to do so. Although the test is not a high one, the coercive powers of these provisions are clearly designed to ensure that the authority of examiners is not abused and to provide some measure of protection for the public.

In our opinion, the scheme of the Act contemplates that the power to insist upon the taking of an oath or affirmation means that a person can only be required or compelled to take the oath if the summons is valid. If the examiner had no power to issue the summons, it is difficult to see how a person is, in terms of s 28(2), required to appear before an examiner at an examination and, unless he is so compellable, in our opinion, he is not 'appearing as a witness'. Even if a person did appear voluntarily without a summons, that does not mean that the witness could be required to be sworn. The witness may change his or her mind. His or her status as a

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witness would then change; the person would no longer be appearing as a witness [61] - [62].

114 The present case is, of course, different because the respondents have been charged under s 30(2)(b), and not subsection (2)(a). While, as the court said in R v LB, a person appearing voluntarily could change their mind and not take the oath, changing one's mind is not so obviously an option for a person who has been sworn. Further, having taken the oath a person is readily described as 'appearing as a witness' whether they appear in answer to a summons or voluntarily.

115 But it is not the correct approach to the construction of the section to read each paragraph, or even each subsection, in isolation. The proper approach to construction is set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In

Commissioner for Railways (NSW) v Agalianos

, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed (381). (citations omitted)

116 The requirements to attend, take the oath or affirmation, and answer questions, are not independent of each other. Further, the introductory words in s 30(2), on which the court in R v LB based its decision, apply to both subsections. The same question arises - whether a person can be compelled, with criminal sanctions for not complying, to be sworn and to answer particular questions. That question is not answered by whether a person happens to be physically present at an examination. It is inconceivable, in my view, that the legislation requires an examiner to be satisfied of the matters set out in s 28(1A), and to record his or her reasons, before issuing a summons to require a person to attend, but can exercise compulsory powers to require a person to take an oath and answer questions, with the privilege against self incrimination abrogated, without any consideration of whether it is reasonable to do so, simply because the person happens to be present.

117 At least as a matter of practice, questions of law should usually be determined the same way in decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at

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the same or a higher level in another judicial hierarchy:

Mustac v Medical Board of Western Australia

[2007] WASCA 128 [46]. Uniformity of decision in the interpretation of Commonwealth legislation is a sufficiently important consideration to require that an intermediate appellate court should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong:

Australian Securities Commission v Marlborough Gold Mines Ltd

[1993] HCA 15; (1993) 177 CLR 485, 492. And see

Tillman v Attorney-General (NSW)

[2007] NSWCA 327; (2007) 70 NSWLR 448 [100] - [110]. I am not convinced that the decision in

R v LB

is wrong, and I regard it as persuasive. I do not regard the fact that the present respondents have been charged under s 30(2)(b) and not s 30(2)(a) as a material difference that affects the result.

118 Accordingly, in my opinion, the validity of the summons is relevant to whether the respondents were required to answer questions, and the respondents have a legitimate forensic interest in documents relating to that issue.

The Federal Court authorities

119 The appellant submitted before the trial judge that he should follow JJ v ACC, and not R v LB. Grounds 3 and 4 of the appeal contend that his Honour erred in following the Court of Appeal (NT) and in failing to follow the reasoning of the Full Court of the Federal Court in JJ v ACC.

120 The decision in JJ v ACC is, however, primarily concerned with a quite different question - whether the recipient of a s 28 summons can challenge it on the basis that the examiner gave inadequate or insufficient reasons for issuing it. The Full Court of the Federal Court accepted that, in this regard, its decision was not consistent with the reasoning in R v LB:

The difference appears to arise substantially from our view that the reasons required by s 28(1A) are not for the purpose of informing either a court reviewing the decision to issue a summons or the person summoned. That view leads us to conclude that much less is required to satisfy the requirements of s 28 than was demanded by Southwood J and the Court of Criminal Appeal. We also have great difficulty in seeing how, in the present case, the reasons can be assessed without reference to the statement and the submissions. Further, we do not accept that one may infer, in this case, from any inadequacy of the reasons, that the Examiner did not consider the question of reasonableness [79].

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121 The reasons in JJ v ACC are consistent with the earlier decision in C Incorporated v Australian Crime Commission [2010] FCAFC 4; (2010) 113 ALD 226 (C Inc v ACC). There the Full Court of the Federal Court considered a challenge to a s 29 notice on several grounds, including that the examiner failed to comply with s 29(1A) and acted unlawfully because he did not record reasons or alternatively recorded inadequate reasons for his decision to issue the notice. The court found that the examiner's statement of reasons was properly open to criticism. It said that the reasons, the statement of facts and circumstances, and the legal submissions in support of the issue of the notice, 'were formulaic and uninformative and did not focus attention on the specific considerations to which the examiner had regard' [89].

122 The court, however, noted that the obligation on the examiner was not to give reasons for decision but to record his reasons. It held that s 25D of the Acts Interpretation Act 1901 (Cth), which obliges a decision maker required to give written reasons to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based, was not attracted. Accordingly, their Honours found that the 'adequacy' of the reasons was not informed by those statutory obligations. See also Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356. Further, the Full Court found that the validity of the notice would be unaffected by inadequacy of the reasons because of the explicit language of s 29(5) - the equivalent of s 28(8).

123 It is not necessary to resolve the difference between the JJ v ACC and R v LB - the difference, in my opinion, concerns the inferences which the court was prepared to draw from the examiner's recorded reasons. The cases are not inconsistent regarding the proper construction of s 30. The Federal Court did not address the relationship between the validity of the summons and the power of the examiner to require a person to take the oath and answer questions.

124 I accept that the reasons required by s 28(1A) are not for the purpose of informing either the person summoned, or a court reviewing the decision to issue a summons. But that does not mean that a record of reasons is irrelevant to a challenge to the validity of a decision to issue a summons. Jurisdictional error may be established by any admissible evidence relevant for that purpose. And the courts in review proceedings have consistently had regard to the reasons recorded by the examiner under s 28(1A), and to the statement of facts and the legal submissions on which the reasons are based: see for example GG v ACC; Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263

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[73];

C Inc

v ACC

[59];

A B Pty Ltd v Australian Crime Commission

[2009] FCA 119; (2009) 175 FCR 296 [57] - [58]. In

JJ v ACC

the court said that the examiner's reasons would, subject to questions of public interest immunity, be discoverable in review proceedings.

125 In summary, the respondents cannot, in review proceedings or otherwise, challenge the validity of the summons on the grounds of the adequacy of the examiner's reasons. The respondents may, however, challenge the validity of the summons issued by the examiner on the basis that he exceeded his statutory powers. To the extent that the documents sought under the summons are relevant to that challenge they may be relied upon.

126 The remaining question is whether that challenge is available in criminal proceedings.

The availability of collateral challenge in criminal proceedings

127 As a general principle, the legality of an administrative act is open to collateral review in a court in the course of dealing with an issue properly arising in a controversy before that court: Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 [36], [94]; Ousley (69) (79 - 80), (87), (100), (130 - 131), (144 - 146). The availability of collateral review is regularly recognised at the highest level: see, for example, K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [144] - [145]; Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 [109].

128 In Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 Malcolm CJ (Seaman & Ipp JJ agreeing) said that as a general rule the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. The rule is subject to some exceptions: where the collateral attack is considered to be an abuse of process because it constitutes an attack on a final decision of a court of competent jurisdiction; where the decision sought to be challenged was made within jurisdiction but invalidated by error of law on the face of the record; and where, as a matter of statutory construction, there is a statutory remedy which is the only remedy available (561). None of those exceptions is relevant to this appeal.

129 The appellant, however, submitted that even if a collateral challenge is available in criminal proceedings, 'it is a challenge of a very limited type confined to invalidity on the face of a document evidencing an administrative decision'. It relied, in particular, on the decision of

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Martin CJ in

Corruption and Crime Commission v Wallace

[2010] WASC 390.

130 In that case, the Corruption and Crime Commission brought a motion for orders that Mr Wallace be committed to a term of imprisonment or fined for contempt for failing to answer questions relevant to an investigation that the Commission required him to answer. Mr Wallace had been served with a summons under s 96 of the Corruption and Crime Commission Act 2003 (WA). The power to issue a summons arose only on the Commission being satisfied that there were reasonable grounds for suspecting that there might be evidence or other information relevant to the investigation of an offence that can be obtained using exceptional powers, and reasonable grounds for believing that the use of exceptional powers would be in the public interest (the exceptional powers finding).

131 Mr Wallace challenged the validity of the exceptional powers finding. Martin CJ stated the elements of the offence of contempt arising under s 160 of the Corruption and Crime Commission Act as follows:

[F]irstly, that Mr Wallace was a person served with a summons under s 96 of the CCC Act; secondly, that the summons required him to attend and give evidence; thirdly, that he failed to answer a question; fourthly, that that question was relevant to the investigation; and fifthly, that the Commission required the person to answer the question [29].

132 His Honour held that it was the fact of the issue of the summons and attendance in answer to it that enlivened the offence of contempt, and not the validity of the finding that preceded the issue of the summons. There was no element of the offence that required the prosecutor to prove the validity of an exceptional powers finding that preceded the issue of the summons.

133 Martin CJ expressed himself widely, and in terms on which the present appellant relies. He said:

[T]here is scope for challenge to the validity of an exceptional powers finding by way of judicial review proceedings. It would also be open to a person summoned to appear before the Commission and to give evidence to take that point before the Commission, and to argue before the Commission that the summons was invalid and seek to have it set aside, on the basis that the exceptional powers finding was not validly made, with the result that the exercise of the purported power to summons the person was invalid and that therefore the summons should be set aside. However, it seems to me that unless and until either of those steps are taken and a ruling obtained on the subject of the exceptional powers finding, it is the fact of the exceptional powers finding that enlivens the Commission's

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jurisdiction to summons a witness, not the sufficiency of the material upon which the finding was based

or its legal validity

(at least prior to any determination of invalidity) [40]. (emphasis added)

134 His Honour concluded, from the scheme of the Act as a whole, that it would be impossible for the Commission to exercise its powers in the sense contemplated by the legislature if it was open to persons served with summonses to neither commence proceedings challenging the validity of matters antecedent to the issue of the summons, or moving to set aside the summons, but reserving to themselves the power to take that point only if and when the contempt proceedings were brought.

135 To the extent that his Honour's remarks deal with the sufficiency of the material upon which the Commission acted in making the exceptional powers finding, I agree. Sufficiency of material is not generally a matter which goes to jurisdiction. If, however, the question of legal validity includes the question of whether the person who issued the summons has gone beyond his or her statutory powers, I do not believe that the exclusion of collateral challenge is consistent with the law regarding the effect of a jurisdictional defect.

136 If there is no challenge to the validity of an administrative act, whether directly by way of judicial review or collaterally in some other proceedings, the act may be presumed to be valid: Ousley (130 - 131) (Gummow J); Minister for Immigration and Citizenship v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [151]. In Bhardwaj Hayne J said of the presumption:

[T]hat is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof for some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside.

137 To give the presumption of validity some greater substantive operation would be to deny that an administrative decision has only the force and effect given to it by the law pursuant to which it was made: Bhardwaj [12] - [13] (Gleeson CJ); [46] (Gaudron & Gummow JJ); [63] (McHugh J); [151] (Hayne J). An administrative decision which involves jurisdictional error is no decision at all: Bhardwaj [51]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 [52]; Plaintiff S157/2002 v Commonwealth[2003] HCA 2; (2003) 211 CLR 476 [76]. While these cases speak in terms of a decision
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affected by jurisdictional error, the principle applies equally to administrative acts purporting to have legal effect, such as the issue of a warrant or other statutory instrument:

Ousley

;

Gedeon

[22].

138 There is, in my opinion, no sound basis to restrict collateral challenge to a defect appearing on the face of the summons if the challenge is one which goes to the power of the examiner to issue it.

139 The appellant referred to cases on warrants, where courts have drawn a distinction between an (impermissible) attack on the sufficiency of the material before the person who issued the warrant, and whether the warrant has been regularly issued: see, for example, Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 105 - 106; Ousley (79), (87). That is not the present case. The decision to require the respondents to attend an examination by issue of a summons is distinct from the issue of a warrant.

140 In any event, the earlier warrant cases must be approached with some caution: Ousley (130) (Gummow J). It is now established that a warrant is not a judicial order but an instrument made pursuant to a prescribed statutory authority: Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307, 322 - 323. A statutory warrant may be subject to the same questions as any other administrative act: see, for example, Coco v The Queen[1994] HCA 15; (1994)179 CLR 427, 435, 443.

141 In the present case, if the examiner did not lawfully exercise his power in issuing the summons then none of the respondents was a person required to attend before the examiner. As discussed above, there is authority that the validity of the summons affects whether the examiner has power to require a person to be sworn. And, in my opinion, the same reasoning may apply to whether the examiner has power to require a person to answer questions.

142 Further, even if the existence of the (valid) summons is not an element of the charge, the validity of the summons may be lawfully questioned in the criminal proceedings in other ways. For example, it is not in doubt that an accused person may seek an order staying further proceedings as an abuse of process: see, for example, Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117. The categories for abuse of process are not closed: Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286. They include where the use of the court's procedures is unjustifiably oppressive or unfair, or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378,

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395 - 396. This appeal does not require a determination of whether it would be an abuse of process to proceed on the criminal charges in circumstances where the s 28 summons was invalid, and that issue was not argued. But such a challenge cannot be dismissed at this stage as entirely hopeless.

143 Whether the respondents were validly summoned to appear before the examiner is a question of law. Should the respondents challenge the summons, that challenge would be dealt with by the judge alone, preferably in a pre-trial ruling. There is no reason to exclude documents from production under a summons because they are relevant to an issue to be determined separately by the trial judge, either before trial or on voir dire, rather than by the jury.

Conclusion

144 For these reasons, the respondents have a legitimate forensic interest in the documents they have summoned. The trial judge has determined issues of privilege and public interest immunity, and his findings have not been challenged. I would grant leave to the appellant to appeal the decision of the trial judge, but would dismiss the appeal.

Australian Crime Commission v Marrapodi

[2012] WASCA 103

9 MAY 2012

AUSTRALIAN CRIME COMMISSION -v- MARRAPODI [2012] WASCA 103