Dunn v The Australian Crime Commission - [2009] FCAFC 16

FEDERAL COURT OF AUSTRALIA
Dunn v The Australian Crime Commission [2009] FCAFC 16
APPEAL – written request to Switzerland for assistance in a criminal matter under the Mutual Assistance in Criminal Matters Act 1987 (Cth) – whether subsequent correspondence between the Swiss Federal Office of Justice and the Criminal Division of the Commonwealth Attorney-General’s Department constituted part of the request or alternatively a new request – whether the failure of the Commonwealth Attorney-General or his delegate to sign the subsequent correspondence render the original request or alternatively the new request invalid – s 10 of the Act – whether Request, however constituted, was invalid by reason that it contained material which was misleading and/or because it failed to contain material relevant to some of the allegations therein – whether primary judge applied a less onerous and incorrect test than required under s 14 of the Act.
Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 10(1), 14, 219B, 40(1), 45
Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters done at Berne in Switzerland on 25 November 1991, Articles 6 and 7
Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth)
Crimes Act 1914 (Cth) s 10
Customs Act 1901 (Cth) s 219B
Telecommunications (Interception) Act 1979 (Cth) s 45
Carmody v MacKellar (1997) 148 ALR 210 referred to
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 referred to
George v Rockett (1990) 170 CLR 104 referred to
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 discussed
Kennedy v Australian Securities & Investment Commission (2005) 142 FCR 343 followed
Lego Australia Pty Ltd v Parlaggio (1994) 52 FCR 542 referred to
Lloyd v Costigan [No 2] (1983) 76 FLR 279 referred to
GREGORY JOHN DUNN and MISTY MOUNTAIN PTY LTD (ACN 009 113 759) v THE AUSTRALIAN CRIME COMMISSION, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
VID 341 of 2008
STRACHANS SA V ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, THE AUSTRALIAN CRIME COMMISSION and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
VID 340 of 2008
MOORE, JESSUP & GILMOUR JJ
24 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 341 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
GREGORY JOHN DUNN
First Appellant

MISTY MOUNTAIN PTY LTD (ACN 009 113 759)
Second Appellant

AND:
THE AUSTRALIAN CRIME COMMISSION
First Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Third Respondent

JUDGES:

MOORE, JESSUP & GILMOUR JJ

DATE OF ORDER:

24 FEBRUARY 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the costs of the respondents.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 340 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] FCAFC 16
Decision Date: 24 February 2009

CaseChat Overview and Summary

The case of Dunn v The Australian Crime Commission involved two appeals, one by Strachans SA and another by clients of Strachans SA, namely Mr. Dunn and Ms. Misty. The appeals were consolidated due to substantial overlap in the legal issues and common documents. The primary dispute was whether the Australian Crime Commission had complied with legal requirements when executing a request for mutual legal assistance under the Mutual Assistance Act and the Mutual Assistance in Criminal Matters Treaty. The case focused on whether the request, and subsequent correspondence, were executed in accordance with the law and whether they contained sufficient information to meet Australia's obligations.

The legal issues before the court included whether the correspondence, which was not signed by the Attorney-General or their delegate, could be considered part of the original request, thereby violating section 10(1) of the Mutual Assistance Act. Additionally, the court had to determine if the request and correspondence contained errors or omissions that failed to meet the obligations under section 14 of the Mutual Assistance Act and Article 7 of the Treaty. The appellants argued that the request lacked material facts and included vague or false allegations.

The court rejected the argument that the correspondence formed part of the request. It held that the correspondence was merely supplementary and did not need to be signed by the Attorney-General or their delegate to comply with section 10(1). Regarding the sufficiency of information, the court found that the request provided enough details to satisfy the obligations under Article 7(1)(b) of the Treaty, which required a description of the essential acts or omissions sought to be ascertained. The court held that this did not necessitate a disclosure of all material facts.

The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents. The court found that the Australian Crime Commission had not violated the statutory or treaty requirements in executing the request for mutual legal assistance.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the costs of the respondents.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Request was, in part, executed in June 2005 when the Swiss Authorities searched for and seized, relevantly, certain business records from Strachans SA premises in Geneva. It is not known what records were seized. None have been sent to Australia. To that extent the Request remains executory. The judgment appealed from The primary judge rejected the appellants’ contention that the subsequent correspondence, including attachments, formed either part of the Request or constituted a new request but concluded that it was merely correspondence which dealt with various aspects of the Request: [23]. Accordingly his Honour concluded that the fact that none of that correspondence was signed by the Attorney-General or his delegate did not offend s 10(1) of the Mutual Assistance Act. The appellant had complained that the Request and the subsequent correspondence contained errors such that Australia had failed to satisfy its obligations under s 14 of the Mutual Assistance Act and Article 7 of the Treaty. The alleged errors included omission of material facts, the inclusion of vague and unsubstantiated allegations and the making of false allegations. To the extent that this complaint relied upon a challenge to the subsequent correspondence as forming part of the Request this was rejected for the same reason as the case concerning non-compliance with s 10(1) of the Mutual Assistance Act. Article 7(1)(b) of the Treaty provides that a request must include “… a description of the essential acts or omissions alleged or sought to be ascertained.” The primary judge concluded that this did not create a general obligation of disclosure of “all material facts”. The relevant obligation, his Honour found, which was imposed by Article 7(1)(b), did not extend beyond a requirement that the Request describe the essential acts or omissions alleged or which it was anticipated the investigation might ascertain. His Honour was persuaded that sufficient information was provided in the Request to satisfy Australia’s obligations under Article 7(1)(b) of the Treaty. The Appeals The appellant in VID340 of 2008 is Strachans SA. The appellants in VID341 of 2008 are clients of Strachans SA, who were named in the Request. It is convenient to deal with both appeals together. They substantially overlap. Whilst the primary judge delivered two separate judgments, the reasons for the judgment appealed from in VID341 of 2008 (the Dunn and Misty proceeding) were adopted in the reasons for the judgment appealed from in VID340 of 2008 (the Strachans proceeding). The relevant documents are common to both matters, and the appeal books have been consolidated. The Notices of Appeal The notice of appeal in the Dunn and Misty proceeding contains 16 grounds of appeal. The notice of appeal in the Strachans proceeding adopts without specification some grounds from the Dunn and Misty proceeding, and adds two further grounds. The appellants abandoned grounds 10, 11, 12, 13, 14 and 16 in both the Dunn and Misty proceeding and the Strachans proceeding to the extent that those grounds were adopted there. It was submitted in the Dunn and Misty proceeding that ground 8 was not abandoned. However it was not the subject of submissions. It is unnecessary for the disposition of the appeal in that matter for the legal question raised to be answered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 341 of 2008

JUDGES:	MOORE, JESSUP & GILMOUR JJ
DATE OF ORDER:	24 FEBRUARY 2009
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 340 of 2008