Elfar v Commonwealth of Australia

Case [2025] FCA 245

FEDERAL COURT OF AUSTRALIA

Elfar v Commonwealth of Australia [2025] FCA 245

Review of: Decisions of the Australian Criminal Intelligence Commission and the Queensland Corrective Services
File number: QUD 168 of 2023
Judgment of: RANGIAH J
Date of judgment: 26 March 2025
Catchwords: ADMINISTRATIVE LAW – application for declaratory orders – where applicant was subject to compulsory examination under the Australian Crime Commission Act 2002 (Cth) after being charged but before trial – where applicant was produced for examination pursuant to the Corrective Services Act 2006 (Qld) – where compulsory examination was unlawful but criminal courts ruled that applicant suffered no prejudice – where there is no utility in making declarations of the kind sought – application dismissed
Legislation:

Acts Interpretation Act 1901(Cth) s 2B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth) ss 7(1), 7(1A), 24A, 25A, 25A(7), 25A(9), 28(1), 30(1), 30(6), 30(2)(b), 36(1), 57 and 59A

Criminal Code 1995 (Cth) ss 11.2A(1), 11.2A(2) and 307.1(1)

Judiciary Act 1903 (Cth) ss 39(1)(b), 39B(1A)(c), 39B39B(1)(c) and 78B

ss 3, 5, 5(1), 11(1) and 16

Acts Interpretation Act 1954 (Qld) s 33AB(1)

Corrective Services Act 2006 (Qld) ss 69, 69(1), 69(3), 69(4), 70 and 70(2)

Public Sector Act 2022 (Qld) ss 10, 16, 170, 174(1) and 197

Cases cited:

AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Crime Commission v OK (2010) 185 FCR 258

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Broadbent v Medical Board of Queensland [2011] FCA 980; (2011) 195 FCR 438

DBH v Australian Crime Commission [2014] QCA 265

Duncan v Chief Executive Officer, Centrelink [2008] FCA 56; (2008) 244 ALR 129

Elfar formerly (EGS 21) v Commonwealth of Australia [2022] FCA 1402

Elfar v ACC (No 5) [2014] QSC

Golding v The Queen; Elfar v The Queen [2020] HCASL 28

Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604

Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

R v Elfar, Golding and Sander [2018] 1 Qd R 608

R v Elfar, Golding, Sander, Serna and Triplett (No 3) [2013] QSC

Raibevu v Minister for Home Affairs [2020] FCAFC 35

Ridgeway v The Queen (1995) 184 CLR 19

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; 194 ALR 749

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

UBS AG v Tyne (2018) 265 CLR 77

Wecker v Delegate to the President of the NSW Anti-Discrimination Board [2013] FCA 1167

X7 v Australian Crime Commission (2013) 248 CLR 92
Division: General Division
Registry: Queensland
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 139
Date of hearing: 10 June 2024
Counsel for the…

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AGLC
Elfar v Commonwealth of Australia [2025] FCA 245
Case
[2025] FCA 245
Decision Date

CaseChat Overview and Summary

The case of Elfar v Commonwealth of Australia was brought before the court following the applicant’s compulsory examination under the Australian Crime Commission Act 2002 (Cth) before being tried for importing a commercial quantity of a border-controlled drug. The applicant sought declaratory orders concerning the unlawfulness of the compulsory examination and the impact of this on his trial, as well as consequential relief. The court was required to determine whether the compulsory examination was indeed unlawful and, if so, whether this led to any prejudice to the applicant’s right to a fair trial.

The court found that the compulsory examination was indeed unlawful, as it occurred after the applicant was charged but before trial, which was contrary to the provisions of the Australian Crime Commission Act 2002 (Cth). However, the court noted that the criminal courts had already ruled that the applicant suffered no prejudice from this unlawful examination. The court further observed that there was no utility in making the declarations sought by the applicant, as the findings of the criminal courts were final and conclusive on the issue of prejudice. The court rejected all grounds of review and dismissed the proceeding.

The court ordered that the proceeding be dismissed and that the applicant pay the respondents’ costs of the proceeding. This decision reinforces the principle that the findings of the criminal courts are binding on the parties and cannot be challenged in subsequent proceedings, unless there are exceptional circumstances that warrant intervention by a higher court.

Orders

Orders of the court

1. The proceeding be dismissed.

2. The applicant pay the respondents’ costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I propose to proceed by summarising the circumstances in which the proceeding has been brought before considering the parties’ submissions.Background Before commencing this proceeding, the applicant made an application for preliminary discovery. I dismissed that application on 25 November 2022 in Elfar formerly (EGS 21) v Commonwealth of Australia [2022] FCA 1402 (Elfar No 1). In my reasons for judgment, I set out the relevant history of the criminal proceedings, which I will elaborate upon here. On about 12 October 2010, the applicant was charged with importation into Australia of a commercial quantity of a border-controlled drug, namely cocaine, in contravention of ss 11.2A(1) and (2) and 307.1(1) of the Criminal Code 1995 (Cth). Mr Elfar was remanded into the custody of QCS. On 19 October 2010, a summons was issued requiring the applicant to attend a compulsory examination before an ACC examiner. On 28 October 2010, the applicant was produced by the Chief Executive of QCS for the examination and was duly examined (the compulsory examination). The applicant and his co-accused applied to the Supreme Court of Queensland for a stay of the criminal proceedings on the basis that their compulsory examinations were unlawful. On 18 September 2013, Ann Lyons J answered the following preliminary question in R v Elfar, Golding, Sander, Serna and Triplett (No 3) [2013] QSC:In circumstances where an accused is compulsorily examined or purportedly compulsorily examined by an examiner of the ACC after being charged, is it a fundamental defect in the trial process such that it justifies a stay of the proceedings on indictment? Justice Lyons noted that the applicant and another person were alleged to have collected a cargo of some 400 kg of cocaine about 320 nautical miles off Australia by boat and to have imported the cocaine into Australia. The applicant’s application for a stay relied upon the unlawfulness of his examination by the ACC examiner on the basis of the judgment of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92. The applicant argued that he had been unlawfully examined after he had been charged and now could not have a fair trial, or alternatively, that the unlawful compulsory examination had caused him prejudice. Justice Lyons observed at [30]:Whilst the applicants acknowledge that the CDPP has indicated that the Crown Prosecutor has not had access to any of the interviews and that the examinations have been kept separate and isolated from the criminal case, the applicants still argue that the Court could never be satisfied that some information gleaned in the examinations has not been used derivatively in the investigation and preparation of the brief. At this point, it is necessary to outline some relevant provisions of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) in force at the time of the prospective applicant’s compulsory examination. Section 28(1) provided that an examiner appointed under that Act could summon a person to appear at an examination to give evidence. Section 30(2)(b) provided that a person appearing at an examination must not refuse or fail to answer a question that he or she was required to answer by the examiner. Section 30(6) made it an indictable offence for a person to refuse or fail to answer such a question. Section 25A(9) provided that an examiner could direct that any evidence given before the examiner must not be published, or be published only in a limited way. Section 25A(9) further provided that such a direction must be given if the failure to do so might prejudice the fair trial of a person who had been, or might be, charged with an offence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The ninth ground must be rejected. Conclusion The applicant has not established any basis for the making of any of the declarations or consequential relief he seeks. The proceeding must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

There has not been any notification of an intention to intervene in the proceeding by any of the Attorneys-General.ConsiderationPremises underlying the applicant’s grounds Before proceeding to consider the application for an extension of time and the grounds of review, it is necessary to discuss two premises that underly and inform each ground. The grounds commence from the premise that the applicant’s compulsory examination was unlawful. That flows from X7 v Australian Crime Commission where it was held that the ACC Act does not authorise, “the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge”. The judgments of Ann Lyons J and the Court of Appeal in the criminal proceedings proceeded on the basis that the compulsory examination was not authorised under the ACC Act. So, for example, in the Court of Appeal, McMurdo JA held at [101] that, “the mere occurrence of the irregularity of the kind in this case (the unlawful examination, under compulsion, of the defendant on relevant matters) of itself does not give rise to a prejudice which can justify the permanent stay of the proceeding”. It may be noted that the respondents in the present proceedings have not suggested that the applicant’s compulsory examination was lawful. I accept that the compulsory examination was unlawful. The second premise underlying the applicant’s grounds involves sweeping assertions that decisions and conduct of the ACC examiner, members of the Australian Federal Police, the Crown Prosecutor and the Chief Executive were “fraudulent” or done in “reckless disregard” of legal protections afforded to the applicant. The applicant outlined his case at the commencement of his oral submissions as follows:I bring forth serious complaints of criminal conduct and/or act on ultra vires – the like of fraud, kidnap, grossly unlawful, coercive interrogations, the reckless disregard of a multitude of mandatory, statutory protection mechanisms enacted by both state and Commonwealth parliaments…which were enacted to protect constitutional, enshrined fair trial rights and the most basic of fundamental common law and human rights.Your Honour, I say – and I say strongly – serious criminal conduct, all of which was for the sole purpose of circumventing and overcoming my asserted common law right to silence and, moreover, for the improper purpose of assisting the investigation and prosecution of my offence as charged. However, the applicant’s submissions and affidavits gave no explanation of any basis for those serious assertions. The applicant explained his purpose in bringing the application as follows:…if this Court is of an opinion in consideration of the evidence as a whole…that the unlawful post charge coercive examination was held in reckless disregard of the mandatory protection mechanisms of statute and in consideration to those findings ultimately declare those decisions as being grossly unlawful, the Applicant will then…make application to a superior Court by way of a Writ of Certiorari.