Australian Federal Police v XYZ - [2015] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
AUSTRALIAN FEDERAL POLICE v XYZ
[2015] SASC 113
Judgment of The Honourable Justice Parker
4 August 2015
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - OTHER GROUNDS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE
CRIMINAL LAW - FEDERAL AND STATE INVESTIGATIVE AUTHORITIES - COMMONWEALTH - AUSTRALIAN CRIME COMMISSION
The applicant sought an order directing the Registrar to issue a subpoena to the Australian Crime Commission. The subpoena was sought to obtain documents for possible use in interlocutory proceedings in which the applicant sought the revocation of a restraining order made against him under s 18 of the Proceeds of Crime Act 2002 (Cth). The applicant was the subject of investigations for taxation-related offences. The restraining order had been made in response to an ex parte application by the Commissioner of the Australian Federal Police and prevented the applicant from dealing with assets of great value. The Court had issued the restraining order upon being satisfied that there were reasonable grounds to suspect serious taxation-related offences. Some of the material establishing reasonable grounds to suspect had been obtained by the Australian Crime Commission by way of notices issued under s 29 of the Australian Crime Commission Act 2002 (Cth). Counsel for the AFP objected to the subpoena on grounds that:
1) The defendant would suffer delay and prejudice in the revocation proceedings;
2) The documents were sought for an improper collateral purpose in defending possible criminal charges;
3) The documents sought were not relevant to the revocation proceedings;
4) The subpoena application amounted to mere fishing.
The Court invited submissions as to whether whole or part of the judgment should be suppressed. Counsel for the AFP neither opposed nor consented to suppression. The applicant submitted that either suppression of the judgement or the applicant’s identity was warranted as no charge had yet been laid, the restraining order was issued after satisfying a low evidentiary threshold and there was a real risk of harm to a company linked to the applicant if his identity were published. The applicant relied on r 9(2)(c) and r 236 of the Supreme Court Civil Rules 2006.
Held (Parker J) declining to authorise the issue of the subpoena:
(1) The judgment should be published as the specific issues of the case have not been previously considered. [13]
(2) There is a real potential for adverse effects upon the applicant and an associated company such that the identity of the applicant should be suppressed. [12]–[13]
(3) The contention of an improper collateral purpose in defending possible criminal charges was no more than speculation. The use of the information obtained would be subject to the implied undertaking and could not be used in other proceedings without leave. [34]
(4) Any delay caused by the issue of the subpoena would not be so significant as to justify refusal to approve its issue. [42]–[43]
(5) The documents sought might be relevant to a submission that the ACC had not complied with the procedural requirements for issuing the s 29 notices. However, relevance alone is not sufficient justification in the absence of a legitimate forensic purpose. [44]–[46]
(6) Analogous cases have found a legitimate forensic purpose to exist where either, the documents sought relate to an element of an offence, or there are indications of irregularity in an investigation. [69]–[70]
(7) The subpoena does not relate to an element of an offence as the applicant has not yet been charged. [71]
Australian Crime Commission v LB (2009) 25 NTLR 30, distinguished.
Australian Crime Commission v Marrapodi (2012) 42 WAR 351, distinguished.
Australian Crime Commission v Brereton (2007) 173 A Crim R 572, distinguished.
Carter v Hayes (1994) 61 SASR 451, distinguished.
(8) There was no indication of irregularity in the issuing of the s 29 notices by the ACC. [72]
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, applied.
Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and Di Pietro [2011] VSC 3, applied.
R v Debono (2012) 222 A Crim R 194, distinguished.
(9) The proposed subpoena amounted to impermissible fishing as it was not “on the cards” that the subpoenaed material would assist the revocation application. [72]
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, applied.
Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and Di Pietro [2011] VSC 3, applies.
R v Debono (2012) 222 A Crim R 194, distinguished.
(10) No adverse inference is to be drawn from the Australian Crime Commission refusing to supply relevant documents to the Australian Federal police. [77]
Dunkel v Jones (1959) 101 CLR 298, distinguished.
Proceeds of Crime Act 2002 (Cth) s 18, s 42; Evidence Act 1929 (SA) s 69A, s 69; Supreme Court Act 1935 (SA) s 131(2)(a); Mutual Assistance in Criminal Matters Act 1987 (Cth); Australian Crime Commission Act 2002 (Cth) s 4, s 7B, s 7C, s 7G, s 28, s 29, s 30, s 46A, s 59AA; Law Enforcement (Controlled Operations) Act 1997 (NSW); Major Crime (Investigative Powers) Act 2004 (Vic), referred to.
Commissioner of the Australian Federal Police v Magistrates' Court of Victoria and Di Pietro [2011] VSC 3; Attorney-General(NSW) v Chidgey (2008) 182 A Crim R 536, applied.
R v Debono (2012) 222 A Crim R 194; Australian Crime Commission v LB (2009) 25 NTLR 30; Australian Crime Commission v Marrapodi (2012) 42 WAR 351; Carter v Hayes (1994) 61 SASR 451; Jones v Dunkel (1959) 101 CLR 298, distinguished.
R v LB (2011) 163 NTR 1, discussed.
J v D Pty Ltd [2010] SASC 318; Commissioner of Railways v Small (1938) 38 SR (NSW) 564; R v Ridgeway (1998) 72 SASR 73; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Ousley v R (1997) 192 CLR 69; Minister of Immigration and Citizenship v Bhardwaj (2002) CLR 597; Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90, considered.

AUSTRALIAN FEDERAL POLICE v XYZ
[2015] SASC 113
Civil

PARKER J: By application filed on 11 June 2015 the defendant, XYZ, has sought an order directing the Registrar to issue a subpoena to the Australian Crime Commission (the ACC). As the subpoena is sought for the purposes of interlocutory proceedings, r 172(6) of the Supreme Court Civil Rules 2006 requires that its issue be authorised by a judge or master. For the reasons that follow, I decline to grant authorisation.
On 1 December 2014, the Court made a restraining order under s 18 of the Proceeds of Crime Act 2002 (Cth) (the POC Act) in response to an ex parte application made by the Commissioner of the Australian Federal Police (the AFP). Mr Norman O’Bryan SC of the Victorian Bar appeared for the AFP. In subsequent hearings conducted on 13 March 2015 and 16 June 2015, Mr Christian Juebner, also of the Victorian Bar, appeared for XYZ.
The restraining order applies to assets of very great value held in Australia and overseas. Those assets include shares, real property, and bank deposits held directly by XYZ, by various companies or subject to certain trust arrangements.
On 6 March 2015, XYZ made an application under s 42(1) of the POC Act seeking the revocation of the restraining order on the ground that it is in the interests of justice to do so. The proposed subpoena seeks material that might potentially be used in support of the revocation application.
Publication
I invited written submissions from the parties as to whether or not any suppression order should be made on part or the whole of this judgment and, if so, the source of the Court’s power to make such orders.
The AFP neither consented to nor opposed the Court suppressing the identity of the defendant. The AFP simply submitted that the onus was on the defendant to satisfy the Court that a suppression order was warranted. Nevertheless, the solicitor for the AFP provided helpful submissions.
XYZ has sought orders that:
1My reasons and the Court’s orders not be made available for inspection and downloading from the Court’s website; or
2The published reasons and the orders of the Court should use initials or an acronym to conceal the identity of the defendant, and that references to any material that was taken at any of the closed hearings should be placed in a separate annexure that will not be published generally.
I was informed that XYZ does not rely upon s 69A of the Evidence Act 1929, which empowers a court to make a suppression order to prevent prejudice to the proper administration of justice or to prevent undue hardship to specified classes of person. His submission instead relies upon r 9(2)(c) and r 236 of the Supreme Court Civil Rules on the basis that it is in the interests of justice to make the orders that he seeks.
Rule 9(2) states exceptions to the general principle that court proceedings are to be held in public. Rule 9(2)(c) provides that the Court has a general discretion to direct, if there is good reason to do so, that a proceeding be heard wholly or partly in private, or that the public be excluded from the whole or a particular part of a hearing. That is not directly relevant for present purposes
Rule 236 allows for publication of reasons in full or in a summary form. Judge Lunn noted in J v D Pty Ltd[1] that r 236 does not require publication of reasons on the Court's website, although that is the general practice. His Honour also noted that the Court has an inherent jurisdiction to edit its reasons to limit the availability of sensitive material.
[1] [2010] SASC 318 at [22].
The submission made on behalf of XYZ observed that the restraining order was made ex parte upon the AFP satisfying a very low evidentiary threshold, ie whether there were reasonable grounds to suspect that a serious offence had been committed. An application to revoke the restraining order is pending before the Court. Should the allegations become public, there is a real risk of embarrassment and harm to the reputation of XYZ.
It was also submitted that there is a real risk of harm to the business interests of a company inextricably linked to XYZ if information concerning untested allegations of impropriety were to come to the attention of those who deal with the company. Thus, there is a significant risk that its business will be irreversibly damaged. The AFP noted that XYZ is no longer a director of that company. However, in my view, leaving aside the directorship issue, the affidavit of Ms Suter indicates a close and ongoing practical connection between XYZ and the company. There is nothing before the Court to suggest the severance of that connection.
I accept the correctness of the submissions about the real potential for adverse effects upon XYZ and the company if XYZ were to be identified at this interlocutory stage. I have therefore expressed my reasons in terms that do not identify XYZ, whether directly or indirectly. However, I am not persuaded that my reasons should not be published on the Court's website. Because the specific issues have not been considered previously by this Court, I consider that there is a benefit in publication.
I ordered under s 69 of the Evidence Act that the hearings on 1 December 2014, 13 March 2015 and 16 June 2015 were to be conducted in a closed court. Mr O’Bryan SC had submitted that the Court should be closed for the ex parte hearing on 1 December 2014 so as to avoid the risk that XYZ might gain advance notice of the restraining order before it could be implemented. Mr Juebner had submitted that the interlocutory hearings on 13 March 2015 and 16 June 2015 should also be conducted in a closed court for essentially the reasons referred to in paragraph 11.
Because material held on the court file was not received in open court, s 131(2)(a) of the Supreme Court Act 1935 prohibits a member of the public from inspecting or copying that material without permission of the court.
Background
The factual foundation supporting the ex parte application for a restraining order under s 18 of the POC Act was provided in an affidavit sworn by Federal Agent Diane Suter. The ex parte order was issued upon the Court being satisfied under s 18(1)(f) of the POC Act that Ms Suter held the suspicion stated in her affidavit on reasonable grounds. The relevant suspicion was that XYZ had engaged in multiple taxation-related offences.
·The information referred to in the affidavit of Ms Suter came from a variety of sources. These included:
·a former senior employee of companies connected with XYZ;
·lawful telephone interceptions;
·notices served under s 202 of the POC Act;
·the records of the Australian Taxation Office and the Australian Transaction Reports and Analysis Centre (ie AUSTRAC);
·searches of the public records of the Australian Securities and Investment Commission and equivalent bodies overseas; and
·information gathered by overseas law enforcement agencies and supplied to the Australian authorities under the Mutual Assistance in Criminal Matters Act 1987 (Cth).
More importantly for present purposes, the information relied upon by Ms Suter included banking records obtained by the ACC in response to notices issued under s 29 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act).
Revocation application and request for particulars
As I have already noted, on 6 March 2015 XYZ made an application under s 42(1) of the POC Act seeking the revocation of the restraining order on the ground that it is in the interests of justice to do so. On 13 March 2015, the Court ordered that the AFP provide particulars concerning the coercive powers relied upon to obtain documents and information put before the Court in the ex parte restraining order application. Those orders were made in relation to the revocation application.
Thereafter, the AFP provided the required particulars to the solicitors acting for XYZ. As part of those particulars, the AFP indicated that a large quantity of banking records had been obtained in response to seven separate production notices issued by an ACC examiner under s 29 of the ACC Act. Copies of those notices were provided to the solicitors for XYZ.
An exchange of correspondence then followed between the solicitors for the AFP and XYZ. The focus of the correspondence from the solicitors for XYZ was whether the ACC had satisfied the relevant statutory provisions before issuing production notices under s 29 of the ACC Act.
The ACC has declined to provide to the AFP any documents that lie behind the exercise by the examiner of the power to issue production notices under s 29. The AFP has also stated to the solicitors for XYZ that it does not intend to pursue that issue any further with the ACC. The AFP solicitor concluded the correspondence with the observation that if XYZ wishes to obtain the relevant documents, a subpoena should be issued to the ACC seeking production.
In light of that comment, counsel for XYZ has submitted that the AFP should not be now heard to oppose the issue of the subpoena. I made clear in the course of submissions that I did not accept the validity of that contention. The AFP was doing no more than expressing the obvious view that if XYZ wished to pursue production from the ACC, it would need to apply for issue of a subpoena, as it was clear that the ACC would not otherwise release the relevant documents.
The ACC Act
It is necessary to refer to the relevant provisions of the ACC Act. Section 29(1) empowers an examiner, by notice in writing, to require a person to produce documents or things specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.
Section 29(1A) requires that, before an examiner issues a notice under s 29(1), he or she must be satisfied that it is reasonable in all the circumstances to do so and must record in writing the reasons for the issue of the notice. That record must be made before or at the same time as the notice is issued.
The term “special ACC operation/investigation” is defined in s 4 to mean either, an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation, or an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.
Both limbs of the definition of “special ACC operation/investigation” refer to the making of a determination by the Board. Section 4 defines the “Board” to mean the ACC Board.
Section 7B establishes the ACC Board. It consists of fifteen holders of specified Commonwealth and State public offices, including the Chief Executive Officer (CEO) of the ACC, and is chaired by the Commissioner of the AFP.
The functions of the ACC Board are set out in s 7C. Amongst other functions, the Board may determine, in writing, whether an intelligence operation is a special operation or whether an investigation into federally relevant criminal activity is a special investigation. Importantly, s 7C(3) requires that before the Board determines that an investigation is a special investigation it must consider whether ordinary police methods of investigation into the matters are likely to be effective.
Section 7C(4) specifies the information that must be included in a determination as to whether an investigation is a special investigation or an operation is a special operation.
The voting arrangements at Board meetings are set out in s 7G. Of particular relevance in the present circumstances is the requirement in s 7G(4) that the Board cannot determine if a matter is a special operation or a special investigation unless at least nine members (including at least two eligible Commonwealth members) vote in favour of making the determination. Of the fifteen Board members, six are defined in s 4 to be eligible Commonwealth Board members. The CEO of the ACC and also those Board members who hold State or Territory public offices are not eligible Commonwealth members.
The AFP submissions
Mr O’Bryan SC for the AFP objected to the issue of the subpoena on several grounds.
The first ground of objection was delay. Counsel submitted that the defendant had delayed in filing any substantive affidavit or other material in support of the application to revoke the restraining order made on 6 March 2015. Issue of the subpoena will inevitably delay the progress of the application to revoke the restraining order in circumstances where the AFP seeks to have the matter heard and determined as soon as possible. Counsel further submitted that the AFP would suffer prejudice, which included the postponing of the examination of persons who were likely to be sources of important evidence.
Counsel also submitted that the proposed subpoena was merely fishing. Production of the notices issued under s 29 of the ACC Act had not been sought. The affidavit material filed in support of the application for the issue of the subpoena did not suggest a basis to go behind the s 29 notices. There also had been no allegation made of jurisdictional error. Counsel referred to the observation by Jordan CJ in Commissioner of Railways v Small[2] that a subpoena will amount to improper fishing if it is designed, not to obtain evidence to support the applicant’s case, but to discover whether there is a case at all. It was necessary for it to be realistically “on the cards” for the subpoenaed material to assist the defence.[3] The defendant should not be permitted to fish for a basis upon which to make good a hypothetical challenge to the notices issued under s 29. The defendant had already undertaken extensive checking by way of his request for particulars.
[2] (1938) 38 SR (NSW) 564.
[3] R v Ridgeway (1998) 72 SASR 73 at 101.

Counsel also noted that criminal charges have not thus far been laid against the defendant. In that light, there may be an improper collateral purpose for seeking the information under the subpoena. I regard this contention as being no more than speculation. Moreover, the use of the information obtained under the subpoena will be subject to the implied undertaking[4] and therefore could not be used in other proceedings without leave of the Court. I reject the suggestion that I ought to take into account that there may be an improper collateral purpose underlying the proposed issue of a subpoena.
[4] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Mr O’Bryan SC also disputed the relevance to the revocation application of the documents sought by the proposed subpoena. His submission was based upon the operation of the POC Act and the ACC Act.
Counsel noted that s 59AA of the ACC Act authorised the ACC to disclose to the AFP, and thus to Ms Suter, the information or documents obtained in response to notices issued under s 29. Thus, the banking records that had been produced in response to the s 29 notices were lawfully disclosed to the AFP and Ms Suter.
Section 18(1)(f) of the POC Act required the court to make a restraining order if it was satisfied that Ms Suter, as an authorised officer, held on reasonable grounds the suspicions stated in her affidavit. The banking records provided a source of, and reasonable grounds for, Ms Suter’s suspicions (albeit that her affidavit also noted other sources and grounds).
It was submitted that it is not necessary to prove that the ACC had authority to issue the notices under s 29 to the banks. The basis for this submission was that the validity of the s 29 notices is not relevant to the question whether Ms Suter had reasonable grounds to suspect that the defendant had committed the offences alleged by Ms Suter in her affidavit. In such a case, the “the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings”.[5] It was further submitted that, at the time Ms Suter swore her affidavit, the presumption of validity was operating in relation to the information she had been provided by the ACC and which had informed her suspicions.
[5] Ousley v R (1997) 192 CLR 69 at 130. See also Minister of Immigration and Citizenship v Bhardwaj (2002) 209 CLR 597 at [151].
Mr O’Bryan SC also submitted that the question of relevance may overlap with the contention that there was no legitimate forensic purpose for the issue of the subpoena. There would be no legitimate forensic purpose if the material sought in the subpoena had no apparent relevance to the issues that were the subject of the proceedings.[6]
[6] Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103.
Principles
The principles for determining whether a party is entitled to access documents by way of a subpoena were summarised by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and De Pietro[7] as follows:[8]
[7] [2011] VSC 3 at [28].
[8] I include in this passage, as footnotes, the authorities cited by J Forrest J.
(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;[9]
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;[10]
(c)the applicant for the witness summons must also satisfy the court that it is “on the cards”,[11] or that there is a “reasonable possibility”,[12] that the documents sought under the subpoena “will materially assist the defence”.[13]
(d)a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;[14]
(e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[15] There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.[16]
(f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.[17]
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[18]
[9] R v Saleam (1989) 16 NSWLR 14 at 18; R v Mokbel (Ruling No 1) [2005] VSC 410 at [45]; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]; Re Don [2006] NSWSC 1125 at [26].
[10] Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 681.
[11] Alister v The Queen (1984) 154 CLR 404 at 414.
[12] DPP v Selway (Ruling No 2) (2007) 16 VR 508 at [10]; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300 at [96].
[13] Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [5], [62] and [64]; R v Mokbel (Ruling No 1) [2005] VSC 410 at [45]; R v Saleam [1999] NSWCCA 86 at [11]; Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam (1989) 16 NSWLR 14 at 18.
[14] Alister v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14 at 17; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Re Don [2006] NSWSC 1125 at [26].
[15] Attorney-General (New South Wales) v Chidgey (2008) 182 A Crim R 536 at [59].
[16] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181.
[17] Sankey v Whitlam (1978) 142 CLR 1 at 42 and 62; Alister v The Queen (1984) 154 CLR 404 at 414 and 454–456; R v Saleam (1989) 16 NSWLR 14 at 17; R v Mokbel (Ruling No 1) (2005) VSC 410 at [40].
[18] R v Saleam (1989) 16 NSWLR 14 at 18. See also R v Sergi [1998] 1 Qd R 536; R v Saleam [1999] NSWCCA 86 at [11].
I respectfully adopt this summary by J Forrest J as an accurate statement of the legal principles. I will consider the objections made by the AFP about delay, relevance and fishing in light of these principles.
Delay
The AFP clearly desires that the compulsory examination be conducted expeditiously and that if criminal charges are to be laid, that they should be laid promptly. In the meantime, XYZ is restrained from dealing with assets of great value. No action on the part of XYZ or his advisers so as to cause delay has been drawn to my attention. Much of the time between lodgement of the revocation application on 6 March 2015 and the filing of the application for issue of the subpoena on 11 June 2015 was taken up with the provision of material in response to the order for particulars I made on 13 March 2015 and extensive correspondence between the parties’ solicitors.
In any event, I am not persuaded that any delay that might be caused by issue of the subpoena need be so significant as to justify a refusal to approve its issue. If it were to be issued, and the matter were approached with reasonable diligence, I doubt that it should delay the hearing of the revocation application by more than a few weeks, even allowing for the hearing and determination of a possible public interest immunity or other objection by the ACC.[19]
[19] I have no information to suggest that such an objection will be made by the ACC, but the context indicates that it is a realistic possibility.
Relevance
The documents sought from the ACC under the proposed subpoena might potentially support a submission to the effect that, when the Court determines the revocation application, it should have no regard to information obtained under the s 29 notices if it is established that the ACC had failed to comply properly with the several procedural steps that must precede the issue of such notices. A submission to that effect would give rise to a number of significant legal issues.
One issue is whether in the course of the revocation application a collateral challenge may be made to the s 29 notices issued by the ACC. Another issue is whether any failure by the ACC to comply strictly with the various procedural steps in the ACC Act would invalidate the s 29 notices. If both of those issues were to be resolved in favour of XYZ, there would be a question as to whether a finding that the s 29 notices were invalid should lead to a further finding that Ms Suter was not entitled to rely upon the information obtained in response to those notices when she formed the suspicion that XYZ may have committed serious taxation offences. Even if the Court found in favour of XYZ on that question, such a finding would not, of itself, resolve the issue as to whether or not the restraining order should be revoked in the interests of justice.
It is apparent that the contents of the documents sought from the ACC may potentially be significant in the resolution of several of the issues identified in the previous paragraph. At least to that extent, they are relevant to the revocation application. However, relevance alone is not sufficient justification for the issue of a subpoena. A further question arises as to whether XYZ has a legitimate forensic purpose in seeking the documents from the ACC or whether he is merely “fishing”.
Fishing
On a number of occasions in recent years, courts in other Australian jurisdictions have considered whether or not the production of documents should be required under a subpoena where a defendant had sought the documents so as to check whether police or the ACC had complied with statutory procedures before the exercise of their coercive or special powers. The circumstances of those matters were broadly similar to the present case.
At first glance, there might appear to be some inconsistency in the judgments in those cases. In one group of cases, courts did not allow subpoenas to be issued unless there was evidence to suggest possible procedural irregularities in investigations. In a second group of cases, courts were prepared to authorise the issue of subpoenas to the ACC even though there was no evidence before the court of any relevant irregularity.
I consider that there is no inconsistency between the cases. Rather, when properly understood, the two lines of authority deal with distinct situations. The first deals with situations where defendants were seeking to issue subpoenas to ascertain whether any procedural irregularities gave a basis to challenge the admission of prosecution evidence. The second group involves subpoenas issued to ascertain whether there was a procedural irregularity that might result in the prosecution being unable to prove an essential element of an alleged offence. I discuss the two distinct groups of cases below.
Cases where subpoenaed material was relevant to the admission of evidence
In Attorney-General (NSW) v Chidgey,[20] the New South Wales Court of Criminal Appeal set aside a decision of a magistrate that there was a legitimate forensic purpose which permitted a defendant charged with drug offences to issue a subpoena to the Commissioner of Police during a committal hearing. The subpoena required the production of documents relating to the approval of a controlled operation under the Law Enforcement (Controlled Operations) Act 1997 (NSW) that had led to the arrest of the defendant. A magistrate had held that there was a legitimate forensic purpose in allowing the defendant to check whether the police had complied with the legislation in obtaining approval for the controlled operation.
[20] (2008) 182 A Crim R 536.
In the Court of Criminal Appeal, Beazley JA (with whom James and Kirby JJ agreed) held that the purported legitimate forensic purpose identified by the magistrate amounted to no more than a fishing expedition to establish whether the police had complied with the NSW Act. There was no material before the magistrate to indicate that there had been, or might have been, a failure to comply with the Act. The legitimate forensic purpose simply amounted to the defendant checking to discover whether he had a case at all. Thus, there was nothing to suggest that it was “on the cards” that the subpoenaed material would “materially assist the [respondent’s] case”.[21]
[21] Ibid at [84]–[86].
In Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria and Di Pietro,[22] the issue before the Supreme Court of Victoria was the issue of a subpoena to the AFP for the production of documents, including affidavits, relating to the issuing of telephone interception warrants. The defendant had been charged with drug offences. He had not suggested that the warrants on their face were not valid. His contention was that it was reasonably possible that the affidavits sworn by AFP officers had misled the Administrative Appeals Tribunal members who had issued the warrants. J Forrest J held that, because there was no evidence to suggest that the warrants had been issued on the basis of misleading material or that the applications had been made in bad faith, it was not “on the cards” that there was a reasonable possibility that the material sought by the defendant would assist his case. The subpoena was set aside.
[22] [2011] VSC 3.
The issue before the Supreme Court of Victoria in R v Debono[23] was the making of a collateral challenge to a coercive powers order made under the Major Crime (Investigative Powers) Act 2004 (Vic). The defendant had been charged with refusing to make an oath or affirmation contrary to that Act. The issues dealt with in the judgment of Kyrou J were wide-ranging, but it is only necessary to consider his Honour’s conclusion that the defendant had a legitimate forensic purpose in seeking production of documents relevant to the validity of the coercive powers and custody orders made under the Act. Kyrou J found that on the face of the relevant documents it was apparent that issues may arise concerning compliance with the legislation.[24] For that reason his Honour held that there was a reasonable possibility that the documents would assist the defendant in his defence of the charges. Thus, the defendant was entitled to issue the subpoena.[25]
[23] 222 A Crim R 194.
[24] Ibid at [220]–[222].
[25] Ibid at [223].
In each of Chidgey, Di Pietro and Debono, the only purpose of the issue of the subpoena was to obtain material which might potentially demonstrate that the police had acted improperly or without lawful authority so as to secure evidence that was to be deployed against the defendant in his pending trial.
In Chidgey and Di Pietro, there was no material before the Court which suggested that there had been any improper conduct or a failure on the part of the police to comply with the relevant statutory procedures. For that reason it was not “on the cards” that the documents would materially assist the conduct of the parties’ cases. Thus, the Courts found in each case that the issue of the subpoena merely amounted to fishing and could not be permitted.[26]
[26] See also Hunt v Wark (1985) 40 SASR 489.
On the other hand, in Debono, Kyrou J found that it was apparent on the face of the relevant documents that issues may arise concerning compliance with the relevant legislation by the police. Thus, there was a reasonable possibility that the documents may assist the defendant. Accordingly, the defendant was not “fishing” and was entitled to issue the subpoena.
The judgments in Chidgey, Di Pietro and Debono stand for the principle that in the absence of any information suggesting that there may have been improper or unlawful conduct by investigators, the defendant will not be permitted to fish to see whether or not he has a basis to challenge the validity of an investigation.
Cases where subpoenaed material was relevant to an element of an offence
I now turn to the second group of cases, where the issue was whether a defendant facing criminal proceedings under the ACC Act could subpoena documents bearing upon an element of the offence with which they had been charged. In each of these cases, the defendant was seeking to establish whether or not the ACC had complied with the procedures under the ACC Act before seeking to compel him to give evidence or to take an oath or affirmation before an examiner. It was an essential element of the offence in each case that the power to compel the defendant had been lawfully exercised.
In Australian Crime Commission v LB,[27] the Supreme Court of the Northern Territory considered the issue of a subpoena directed to the ACC and seeking documents which had authorised the conduct of an examination under s 28(1) of the ACC Act. The defendant had been charged with refusing to take an oath or affirmation for the purposes of the examination. Some of the documents sought would have been created under the same or very similar provisions of the ACC Act as those sought in the present matter.
[27] (2009) 25 NTLR 30.
Southwood J held that the defendant was not merely fishing nor undertaking checking at large. The Crown had indicated that it would rely on the presumption of regularity to prove the case against the defendant. All of the information relevant to the establishment of the alleged jurisdiction of the examiner to require the defendant to take an oath or affirmation was within the possession of the ACC. The defendant had specified the scope and purpose for which the documents were being sought, and the issues that arose for consideration were clearly defined. The production of the documents by the ACC was required for there to be a fair trial. A refusal to produce the documents would leave the defendant with a legitimate sense of grievance and with no ability to test the evidence that was relied upon by the Crown to establish the presumption of regularity that formed a core aspect of the case against him. On that basis, Southwood J distinguished Chidgey. His Honour also noted that Chidgey was not authority for the proposition that all checking in all circumstances amounted to an illegitimate forensic purpose.[28]
[28] Ibid at [47]–[48].
For completeness, I also note that in R v LB[29] the Northern Territory Court of Criminal Appeal heard an appeal from a separate decision of Southwood J relating to the same defendant. In that instance, Southwood J had held that the summons served on the defendant under s 28 of the ACC Act was invalid, as the examiner had not given any reasons for its issue and thus could not have been satisfied that it was reasonable in all the circumstances to issue the summons. The Court of Criminal Appeal held that a person who appears before an ACC examiner in response to a witness summons and who refuses to take an oath or affirmation cannot be found guilty of an offence under s 30(2)(a) of the ACC Act unless the Crown proves that the summons was validly issued.[30]
[29] (2011) 163 NTR 1.
[30] Ibid at [62].
The issue of a subpoena to the ACC to check compliance with the ACC Act came before the Western Australian Court of Appeal in Australian Crime Commission v Marrapodi.[31] The respondents had attended examinations in response to a witness summons issued by an examiner under s 28(1) of the Act. Each respondent issued a subpoena seeking production of the reasons for the issue of the witness summons, the supporting legal submissions and the statement of facts and circumstances. The information was sought for the purpose of assessing whether the summons was invalid on grounds that did not appear on its face. The majority of the Court of Appeal (McClure P and Allanson J, with Martin CJ dissenting) held that the respondents had a legitimate forensic purpose in seeking production of the documents from the ACC.
[31] (2012) 42 WAR 351.

McClure P held that the service of a witness summons under s 28(1) of the ACC Act was not an element of the offence of contravening s 30(2)(b) of that Act by refusing to answer questions. However, her Honour also held that if a witness attended under compulsion, the validity of the summons was a condition of the power of the examiner to require the witness to answer. Her Honour also stated that the validity of the summons was a question of law. Whether the presumption of regularity applied to an element of an offence had not been authoritatively determined. If the presumption did apply, the accused would bear only an evidentiary onus. If the summons issued under s 28(1) of the ACC Act was valid on its face, the presumption of regularity would arise and only be displaced if those challenging it satisfied an evidential burden. Because the issue had not been fully ventilated in the appeal, her Honour expressed only a preliminary view. If each of the respondents bore an evidentiary burden on the validity of the summons, that would support the finding that they had a legitimate forensic interest in the documents sought under the subpoena.
Allanson J considered that the decision of Southwood J in R v LB was persuasive. His Honour held that the validity of the witness summons was relevant to whether the respondents were required to answer questions. Thus, they had a legitimate forensic purpose in seeking production of documents relating to that issue.
In Australian Crime Commission v Brereton,[32] the Supreme Court of Victoria held that a defendant charged with refusing to take an oath in response to the ACC summons had a clear legitimate forensic interest in seeking production of a document which recorded the reasons of an ACC examiner for issuing that summons. Smith J noted that it would be extremely disturbing if the ACC submission was correct that a person could be convicted for failing to respond to an invalid summons because they could not test its validity.
[32] (2007) 173 A Crim R 572.
In each of Australian Crime Commission v LB, Marrapodi and Brereton, there was no information before the court to suggest the ACC had failed to comply with the requirements of the ACC Act. Nevertheless, in each case, the court authorised the issue of a subpoena. The basis for each decision was that the defendant had been charged with failing to answer questions or to take an oath or affirmation at a compulsory hearing conducted after the issue of a summons under s 28. In each case an allegation that the defendant was lawfully required to comply with the demand made by the ACC examiner was an essential element of the offence.
In both Australian Crime Commission v LB and Marrapodi, the prosecution had foreshadowed an intention to rely on the presumption of regularity to prove an essential element of the offence. In Brereton, the prosecution conceded that the validity of the summons that led to the defendant being directed to answer by the ACC examiner depended upon compliance with the ACC Act but asserted that the defendant was estopped by his conduct from challenging the validity of the summons. In my respectful opinion the three different courts correctly rejected those prosecution submissions.
The approach adopted by the Full Court of this Court in Carter v Hayes[33] is not inconsistent with that taken in the three cases in the second group to which I have referred. A subpoena for documents relating directly and immediately to the investigation of an alleged offence was allowed. The content of the documents would have dealt with proof of the elements of the offence charged.
[33] (1994) 61 SASR 451.
Summary of the authorities
The cases to which I have referred have dealt with two quite different situations. The first group of cases (that is Chidgey, Di Pietro and Debono) dealt with the issue of fishing. Each of the defendants was seeking to ascertain whether there might be a possible basis to challenge the admission of evidence that the prosecution sought to rely on. In Chidgey and Di Pietro, there was no information to suggest any irregularity of the part of the police, whereas in Debono the documents before the Court did suggest a possible irregularity. Thus, the subpoena was not set aside in the latter case but the opposite position was reached in the former two cases.
The second group of cases (being Australian Crime Commission v LB, Marrapodi and Brereton) considered subpoenas seeking the production of documents dealing with procedural steps under the ACC Act where, if non-compliance had been established, that may have resulted in the prosecution being unable to prove an essential element of an alleged offence. In other words, the issue was whether the defendant had been lawfully required to comply with an obligation sought to be imposed by an ACC examiner.
Consideration
I distinguish the reasoning adopted by the respective courts in Australian Crime Commission v LB, Marrapodi and Brereton. I do so because the subpoena sought by XYZ does not seek documents relating to proof of an element of an offence. As yet, XYZ has not been charged with any offence. Ms Suter merely suspects, on reasonable grounds, that he may have committed taxation offences. I also distinguish Carter v Hayes on the same basis.
In my view the present case is on all fours with Chidgey and Di Pietro in that there is no information before the Court to suggest that the ACC might not have complied in all respects with the ACC Act before issuing the s 29 orders. I consider that the proposed subpoena merely amounts to impermissible fishing as it is not “on the cards” that the subpoenaed material will assist the revocation application made by XYZ. For that reason the present case may be distinguished from Debono.
In arriving at my decision that the proposed subpoena would constitute “fishing” and should not be authorised, I have taken into account the following matters.
As J Forrest J noted in De Pietro,[34] in criminal proceedings a “more liberal” view is taken by a court on the fishing question as special weight is to be given to the fact that the documents may assist the defence of the accused. However, s 315 of the POC Act makes clear that confiscation proceedings are civil and not criminal. Should XYZ later be charged with a criminal offence, and depending upon all the facts and circumstances then relevant, it is possible that a different approach might be taken to the subpoena question. That is a decision for another day.
[34] [2007] VSC 3 at [28].
I have assumed, without deciding, that the procedural requirements imposed upon the ACC under ss 7C, 7G and 29 of the ACC Act are conditions precedent to the issue of a valid production notice under s 29. If that assumption is correct, and if it were established that a notice had been issued without having complied properly with those statutory requirements, it may be arguable that the AFP should not be permitted by the Court to rely upon evidence obtained under any such notice when it determines whether the restraining order should be revoked. To put the matter another way, a procedural shortcoming by the ACC may arguably assist XYZ in his revocation application by providing support for a submission that Ms Suter was not entitled to rely upon the information obtained from the banks in forming her suspicion that XYZ may have committed taxation-related offences. I stress that I make no decision on these points.
I also recognise that the restraining order applies to assets of very great value. However, I do not consider that the quantum affects the application of the principle that parties cannot be permitted to issue subpoenas in support of a mere fishing expedition.
Mr Juebner submitted that an adverse inference ought to be drawn from the failure of the ACC to agree to provide the relevant documents so as to enable the AFP to supply them to XYZ. That submission overlooks the fact that the ACC is not a party to these proceedings. While the affidavit of Ms Suter discloses that the AFP and the ACC are engaged in a joint operation, they are different bodies under separate management and control. Although the Commissioner of the AFP is the Chair of the ACC Board,[35] that does not give him control over the ACC. The ACC is subject to its Board in accordance with Subdivision B of Division 1 of the ACC Act and managed by its own Chief Executive.[36] It may be that the ACC has refused for its own reasons to supply the documents to the AFP. The Court has no information about this issue. I do not consider that there is any basis to draw an adverse inference in these circumstances. The principle in Jones v Dunkel[37] concerning the drawing of an adverse inference does not apply.
[35] Section 7B(3) of the ACC Act.
[36] Section 46A of the ACC Act.
[37] (1959) 101 CLR 298.
A further submission by Mr Juebner was that the subpoena was merely the logical extension, and further carrying into effect, of the orders made by the Court for provision of particulars relating to the revocation application. This submission does not overcome the principle that fishing is not to be permitted to enable a party to see whether they have a case.
Conclusion
For these reasons I have refused permission under r 172(6) of the Supreme Court Civil Rules for the issue by XYZ of the proposed subpoena to the ACC. So as to avoid unnecessary costs, and because most of the practitioners involved in this matter are based in Victoria, I will publish my reasons and make orders in the absence of the parties. I will hear any submission in relation to costs when the matter is next before me.