Dunn v Australian Crime Commission - [2008] FCA 424

FEDERAL COURT OF AUSTRALIA
Dunn v Australian Crime Commission [2008] FCA 424
ADMINISTRATIVE LAW – application for request for assistance in a criminal matter to be declared invalid, set aside or quashed – whether the request lawfully made – whether the request was made by the Attorney General (Cth) or the Attorney General’s delegate – whether the maker of a request is under an obligation to disclose all material facts – whether alleged factual defects in the request rendered the request invalid - whether reasonable grounds to believe the preconditions for making the request were satisfied – whether inclusion of allegedly privileged material rendered the request invalid - whether the involvement of the Director of Public Prosecutions rendered the request unlawful – whether the involvement of the Australian Crime Commission rendered the request unlawful – application dismissed
WORDS & PHRASES – “investigation relating to a criminal matter” – “reasonable grounds to believe”
Mutual Assistance in Criminal Matters Act1987 (Cth) ss 3, 6, 7(2), 7(3)(a), 12(1), 14, 16(1)
Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 Reg 4(1)
Director of Public Prosecutions Act 1983 (Cth) ss 5, 6(1)(n), 6(2), 6(2)(b)
Director of Public Prosecutions Regulations 1984 Regs 3(1)(f), 3(1)(g)
Australian Crime Commission Act 2002 (Cth) ss 4, 7(1), 51, 59(7) 59(9), 59A
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW)
(1999) 168 ALR 211 referred to
(1990) 170 CLR 104 referred to

George v Rockett
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to
Bollag v Attorney-General (Cth) (1997) 79 FCR 198 referred to
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 referred to
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 referred to
Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 referred to
Health Insurance Commission v Freeman (1998) 88 FCR 544 referred to
AA Pty Ltd v Australian Crime Commission [2005] FCA 1178 referred to
Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540 referred to
O’Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 referred to
GREGORY JOHN DUNN AND MISTY MOUNTAIN PTY LTD v THE AUSTRALIAN CRIME COMMISSION, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
WAD 125 OF 2006
TRACEY J
24 APRIL 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

WAD 125 OF 2006

BETWEEN:

GREGORY JOHN DUNN
First Applicant

MISTY MOUNTAIN PTY LTD
Second Applicant

AND:

THE AUSTRALIAN CRIME COMMISSION
First Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Third Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

24 APRIL 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

WAD 125 OF 2006

BETWEEN:

GREGORY JOHN DUNN
First Applicant

MISTY MOUNTAIN PTY LTD
Second Applicant

AND:

THE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 424
Decision Date: 24 April 2008

CaseChat Overview and Summary

Dunn and another brought an application against the Australian Crime Commission and others, seeking various declarations and an injunction. The applicants sought orders preventing the respondents from disclosing to foreign authorities information obtained from the applicants in the course of investigations being conducted by the Australian Crime Commission. The court was required to determine the validity of the disclosure of information obtained from the applicants to the Swiss authorities and whether the respondents were entitled to make such disclosures under the Mutual Assistance in Criminal Matters Act 1987.

The court found that the respondents were entitled to disclose information to the Swiss authorities under the Act. The court determined that the mutual assistance request made by the Attorney-General's delegate was valid and that the information obtained from the applicants was relevant to the investigation of serious offences against Commonwealth law. The court held that the respondents were acting within their lawful powers in disclosing the information to the Swiss authorities and that the applicants' privacy interests were not outweighed by the public interest in the investigation of serious criminal offences.

The court dismissed the application with costs. The applicants were ordered to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence was substantially in documentary form. Two affidavits sworn by the applicants’ solicitor Mr David Shaw were read. These affidavits dealt with uncontentious matters and exhibited a large number of relevant documents. Mr Shaw was not cross-examined. The following affidavits were read and relied on by the respondents:·Mr Michael Outram, the Executive Director, Operational Strategies of the Australian Crime Commission (“the ACC”);·Ms Margaret Jackson, First Assistant Secretary, International Crime Cooperation Division of the Attorney-General’s Department;·Ms Jasmin Phillips, a member of the staff of the ACC;·Ms Donna Buttsworth, also a member of the staff of the ACC; and·Mr Lloyd Woodwood, also a member of the staff of the ACC.Mr Outram and Ms Jackson were cross-examined. The other deponents were not. The Commonwealth Attorney-General’s delegate who had signed the mutual assistance request, Mr Craig Harris, appeared pursuant to a subpoena and was cross-examined by senior counsel for the applicant.THE EVIDENCE The request was made in the course of what has become known as Operation Wickenby, criminal investigations being undertaken by the ACC into the conduct of certain persons who are suspected of having committed serious offences against Commonwealth law. On 10 February 2005 a senior officer employed by the ACC (Mr Kevin Considine) forwarded certain information to an officer (Mr David Adsett) designated by the Commonwealth Director of Public Prosecutions (“the DPP”) to deal with Operation Wickenby matters. The investigator also provided the DPP with a draft mutual assistance request. The draft request alleged that Mr Dunn may have committed offences against Commonwealth laws. On 14 February 2005 an officer in the DPP’s office (Ms Sara Cronan) wrote to the Attorney-General’s Department. She passed on the information obtained from the ACC investigator and enclosed a draft mutual assistance request to Switzerland. It was alleged that Mr Dunn had understated his income for the 2002, 2003 and 2004 income tax years whilst remitting large sums to overseas bank accounts. The DPP asked the Attorney-General to make “requests for assistance in a criminal investigation to Switzerland”. It was said that the material sought “will assist in an investigation into a major tax fraud in Australia”. The DPP asked that “the request should be made on behalf of the DPP, and the ACC.” Officers of the Attorney-General’s department gave consideration to the DPP’s request. It was determined that a mutual assistance request should be made to the Swiss authorities under the Mutual Assistance Act. A “REQUEST FOR ASSISTANCE IN A CRIMINAL MATTER” was prepared. It was signed by Mr Craig Harris, a delegate of the Attorney-General, on 16 March 2005. It was a lengthy document containing 154 paragraphs and eight attachments. In all it consisted of 46 pages. Much of the material in it did not relate to either of the applicants. It will, therefore, only be necessary to refer to some parts of the document.

Decision

Reasons for decision

TRACEY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	WAD 125 OF 2006

JUDGE:	TRACEY J
DATE OF ORDER:	24 APRIL 2008
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	WAD 125 OF 2006