Firstnamed Accused, Secondnamed Accused v Director of Public Prosecutions (Vic)

[1998] HCATrans 451

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M89 of 1997

B e t w e e n -

THE FIRSTNAMED ACQUITTED ACCUSED PERSON

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Respondent

Office of the Registry
  Melbourne  No M90 of 1997

B e t w e e n -

THE SECONDNAMED ACQUITTED PERSON

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 9.33 AM

Copyright in the High Court of Australia

____________________

MR R. RICHTER, QC:   If the Court pleases, I appear with MR J.D. HAMMOND for the firstnamed acquitted person.  (instructed by Barker Gosling)

MR J.G. JUDD, QC:   May it please the Court, I appear with MR R.M. PETERS for the secondnamed acquitted person.  (instructed by Arnold Bloch Leibler)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR O.P. HOLDENSON, QC, for the respondent in each matter.  (instructed by P.C. Wood, Solicitor for Public Prosecutions (Vic))

GLEESON CJ:   Yes, Mr Richter.

MR RICHTER: If the Court pleases, we rely substantially in this application on the written outline that has been furnished to the Court at pages 578 and following of the application book. We say that special leave to appeal should be given in this matter for the following reasons. First of all, these matters involve questions of law, namely, a statutory construction both of the scope of section 450A of the Crimes Act in so far as it deals with whether a matter has arisen at trial, but also and perhaps more importantly with the scope of the powers as they are delimited in the National Crime Authority Act 1984.

The matter is of public importance because both section 450A and the National Crime Authority Act are obviously of Australia‑wide application because section 450A

has its equivalents in other jurisdictions and the NCA Act is a federal statute.  The matters are of general public importance because they are of ongoing concern and of ongoing interest, as would be exemplified, for example, by the fact that the application succeeding our application, that of AB, if certain eventualities arise and there are charges and there is a trial, the very questions that are raised in this application for special leave may well be agitated again and may be agitated in a slightly different way from the way they were expressed in the judgment of the Full Federal Court.  So that the matters are of general public importance.

We also say this, that the authoritative ruling of this Court is required in order to resolve what are implicit differences of opinion, we would submit, and inherent difficulties and inherent inconsistencies in some of the judgments involved.  Finally, we say that special leave should be granted in this particular case because it is in the interests of the administration of justice in this case because we say, in our respectful submission, that the judgment of the Court of Appeal, that is the judgment of his Honour Justice of Appeal Brooking, with whom the President and Justice Tadgell agreed, did some great disservice to the applicant in the sense that the judgment consisted to a significant degree in an onslaught on the trial process itself.

The way the judgment ultimately expressed itself, the net result of it is that the actual effect of the acquittal of the firstnamed acquitted person is undermined and it is undermined seriously in the way that is exemplified by the affidavit that has been filed which demonstrates the way the Court of Appeal’s decision has been trumpeted and put about.  So that the benefit of the acquittal that was secured by the firstnamed acquitted person is in fact undermined to the detriment not only of that person but to the standing of the law and is liable to bring the law into disrespect.  We do not say this is an O.J. Simpson‑type case but we do say that the law is brought into disrepute where, under the guise of answering specific questions of law, there is in fact a wholesale attack upon the conduct of a trial, analysing the trial rather than answering the specific points of law.

So far as the National Crime Authority Act is concerned, which is the point at which we would seek to begin, there are two aspects of the National Crime Authority Act which are of special interest and there are three aspects of section 450A which are of special interest. So far as the National Crime Authority is concerned, the first matter that arises is that the Court of Appeal determined that one construes the power of the National Crime Authority purporting to hold a hearing pursuant to section 25 of the National Crime Authority Act by reference to what is described by Mr Justice Brooking as a four corners doctrine by looking at the notice issued pursuant to section 13 of the National Crime Authority Act and by looking at nothing else as defining the jurisdiction of the National Crime Authority in seeking to compel answers to questions.

What we say is that the solution that is offered by Mr Justice Brooking is unworkable and it is unworkable both for the Authority itself as well as for persons who face its compulsive powers.

GLEESON CJ:   What is your proposition as to the way you should go about this?

MR RICHTER:   As to the way we should go about it?  Our proposition is this, that of course it depends on the kind of reference that it is.  If the notice of reference is a narrow one, then obviously the scope of the inquiry is defined on the face of the notice and there is not need to go to anything else, which is what we say the notice here was in the sense that it was specific enough to identify transactions concerning the acquisition or disposal of securities in Elders IXL.  If the notice is very, very broad, then in an effort to cut it down there may be situations in which recourse to extrinsic material might be necessary if, for example, allegations of bad faith are raised or an excess of power or an abuse of power, but on the face of the document the matter would be covered if the formulation is broad enough, as it is in A1.

So that the proposition that we put in relation to the interpretation, as arose in this case which is why it is important, is that the four corners doctrine per se is too limiting both to the NCA and to others in the sense that if one looked at the reference in our particular case, one could not see any reference, direct or indirect, in it to the foreign exchange transactions.  Therefore, if the four corners doctrine was to be applied in our case or had been applied in our case, the necessary answer of any judge considering the scope of the NCA’s power would have to be either “No, it is not within the face of the notice” or, alternatively, “I don’t know; it is impossible to tell”.

In either of those eventualities - if the answer is no, that points to the way the NCA would be extraordinarily limited in what might otherwise be legitimate and proper inquiries for which there is a proper rationale which would bring the NCA’s inquiries under section 25(8) which permits the NCA to ask questions where the Authority considers the matters relevant to the special investigation. But as soon as one goes to 25(8), one encounters the question of extrinsic material because one then encounters the question of the consideration by the Authority of what is relevant or what is related and necessarily one encounters the question of whether or not one is simply estopped by the claim that the NCA formally puts it that it considers that there is a relevance or whether one is entitled to examine whether that claim for relevance is bona fides or indeed truthful. That immediately brings in an examination of extrinsic materials.

That is the inherent problem with the formulation that has been adopted by the Full Federal Court, for example, in the latest case, in AB this year, which is the subject of an application for special leave to appeal, because what one finds there is that, whilst the court on its face adopts a four corners approach and says the notice is exclusive, at the same time the court entertains the explanation by the member of the Authority who was King, QC saying, “Well, the connection and the relevance is as follows”.  By entertaining that, the court immediately was saying that extrinsic material is permissible in order to interpret or look at the face of the notice.

There is that tension which exists which cannot be surmounted if one adopts a pure four corners doctrine because, as we say, the pure four corners doctrine leads to the situation in which one looks at the piece of paper, something that his Honour Justice Brooking appeared to somehow consider that the trial judge in our case had done wrong by looking at what was described as some pieces of paper when he asked, “Well, if it’s within power I ought to be able to see it on some piece of paper”.  Justice Brooking in effect is saying that looking at a piece of paper is not sufficient; you have to construe it.  There is no magic in the notion of construction.  If one looks at a piece of paper and one employs a strict four corners doctrine, one can see immediately whether on that piece of paper there is a mention of the matter which is sought to be investigated directly.  The indirectness of any such reference, if there be an indirectness, has to be explained by reference to matters extrinsic to the piece of paper itself.

GLEESON CJ:   Mr Richter, because in this respect these applications raise an issue the same as the issue raised in the matter of AB to which you have referred, would it be an appropriate course in the view of counsel for us to hear the argument in AB before we make any decision in relation to these matters and AB?

MR RICHTER:   Yes, your Honour, it would and, as I understand it ‑ ‑ ‑

GLEESON CJ:   Are you content with that, Mr Judd?

MR JUDD:   We would agree with that, your Honour.

GLEESON CJ:   Are you content with that, Mr Jackson?

MR JACKSON:   No objection, your Honour.

MR RICHTER:   As I understand it, counsel for AB had suggested that to me before the start and I was awaiting the Court’s pleasure on that, so we are all in agreement. 

So the four corners doctrine, in our respectful submission, is not a particularly useful one in the way that it might be in a contractual situation where one looks to some four corners doctrine about the meaning of an agreement because all that one would have, given the nature of the NCA and the way it operates, would be a reference, a piece of paper, that one would be looking at and more often than not one would meet the answer whether the line of inquiry is within it by saying, “I don’t know” or, if one is actually forced to give an answer, one would be forced to say, “No, it is not within it because it’s nowhere mentioned and I have no means of ascertaining whether it is indirectly referable”.

That of course was the case in the present reference.  That is the situation in the present reference because, if one looks at the references – and there were a number of references, not just the three references in September 1990.  There were previous references that had not been withdrawn in accordance with the Act which had been expressed in somewhat different terms.  For example, the first reference incorporated by references – and these are references in 89 notices – lists of persons and companies of whom none of the dramatis personae in the foreign exchange matter were mentioned.

The case that was run by the Director at trial was that, although there were variations between the sequences of notices, the subject matter of the inquiry remained identical.  If that be so, then the trial judge in the present instance was necessarily constrained when looking at the pieces of paper to say to himself without having to articulate it but to decide sub silentio that on the face of it there was no jurisdiction to ask the sequence of questions that were sought to be agitated.  In effect, what the learned trial judge did in the present instance was then to pursue a line of inquiry which allowed the DPP in effect to persuade him, or to try and persuade him, that somehow the line of questioning was within power.

That line of inquiry would have had to have been pursuant to the extension, as it were, which is created by section 25(8), namely, the commission of questions to be asked when they are considered to be relevant to the special investigation. But as soon as one comes to that issue, one necessarily must have available extrinsic matters to test both the bona fides and truthfulness of the assertion that what is being investigated is in fact relevant to the special investigation, albeit in the very broad sense that is discussed in MF1, that is discussed in Costigan, that is discussed in the authorities.  There is no dispute here that the investigatory scope of power is both fluid and broad, but nevertheless there are limits and the limits have to be drawn at a point at which there is no connection, so that it must be said that the inquiry is in fact being pursued for an ulterior purpose or in bad faith.

The four corners doctrine is therefore quite central, absolutely central, to the decision of the Full Federal Court in AB and it is also quite central to the decision of the Court of Appeal in the present application and that does create the difference that there is an inherent tension between the approach of Justice of Appeal Brooking and the approach of the Full Federal Court because, whilst the Full Federal Court says on the one hand you look at, as it were, a four corners type of concept by construing the notice, it nevertheless, when one examines what it actually did, looks at extrinsic material, namely, the view of the member about the relevance and that view necessarily is based on extrinsic material.

In the present judgment of Justice Brooking there is not even that extension accorded, and so the tension exists that, applying the Court of Appeal’s judgment in this particular application, one would almost always come up against the situation where, whether the challenge be at the investigatory stage or at a subsequent criminal trial stage, one would always come up with the answer unless the reference were extremely broad, “I do not know whether it is within power or without power”.  That being the case, in our respectful submission, the question has to be resolved in the way that would give guidance to courts in the future and that makes it a particularly important special leave point.

If I may also go back to the Full Federal Court in the earlier AB decision to which we have referred.  Once again, although the subsequent AB Full Court does not purport to overrule or do any violence to the judgment in particular of Mr Justice Jenkinson in the earlier decision, nevertheless they do not seem to be able to share the same judicial life because in the earlier decision the position of course is reserved for the trial judge to determine the scope of power.  If it was as simple as looking at the notice, there would be no problem but the very reservation of the matter for trial, which was in fact the same reservation as occurred in the earlier Full Court decision in Jarrett which allowed the ultimate criminal trial judge for this particular matter to determine it, would not be necessary because one would simply look at the notice.  So that the solution proposed by Justice Brooking, we say, is completely unworkable.

The second matter that we therefore flow into is the meaning and effect of section 25(8) in terms of making the powers of the NCA actually workable. Of course, as soon as one gets to a consideration of the terms of that subsection, one appreciates that what is involved there is precisely what Mr Justice Vincent put his finger on, and that is the notion of some perceived nexus. It is not, as Mr Justice Brooking said, that the prefatory

words to subsection (8), “At a hearing before the Authority for the purposes of a special investigation”, that those words “for the purposes of a special investigation” do not denote a state of mind on the part of the examiner.  His Honour appears to have completely overlooked the fact that the closing words of subsection (8), “on any matter that the Authority considers relevant to the special investigation”, must import an actual state of mind.

The Authority must consider that the line of questions to be pursued is relevant to the special investigation.  If that be so, then it must have in mind some connection, no matter how broad, but some connection that imports relevance to its line of questioning.  I see that my time has expired.

GLEESON CJ:   Thank you, Mr Richter.  Mr Judd.

MR JUDD:   May it please the Court.  I will endeavour to supplement and not repeat submissions made in writing and I will not recanvass those matters that have been addressed by Mr Richter which are in common.  There are three essential points that I wish to develop.

The first relates to the issue that the point of law did not arise. That is the matter arising under section 450A of the Crimes Act.  We say, your Honours, that what the Court of Appeal did was to state in effect principles of universal and inflexible application in relation to the interpretation of the scope of a special investigation, those principles bearing no relationship to the facts and issues before the court – that is before his Honour Justice Vincent.

His Honour was confronted by the following fact circumstances.  The first relevant one, your Honours, was the fact that he had before him no ruling, no reasons or decision of the NCA which would be the subject of a review in a review proceeding.  He had no decision as in the case of AB v NCA, he had no ruling on a question of evidence.  In fact he had nothing which was asserted by anyone at a relevant time to establish the basis upon which the connection was to be made that he was investigating.

The next relevant fact circumstance that confronted his Honour was, as my learned friend mentioned, the seven different notices.

GUMMOW J: Section 25(8) could not be engaged in the trial in the Supreme Court, could it, directly?

MR JUDD:   Subsection (8) is a provision, your Honour, which is there to ensure that the NCA in the course of the examination of a witness confines the ‑ ‑ ‑

GUMMOW J:   Yes, I know.  We are talking about what happened in the trial in the Supreme Court.

MR JUDD:   No, but what his Honour was looking for was the expression by somebody whether as a result of a ruling.  Your Honours will recall that in the case of AB, Ms King, QC made a ruling in response to a submission.  In the course of the inquiry by the NCA a question was asked and it was objected to, so in that case the Federal Court had something before it.  In this case his Honour Mr Justice Vincent had not but what he did have were seven different notices.  The material placed before your Honours includes a folder in which these seven notices are contained.  Your Honours should have, if it corresponds with mine, a white folder and under tabs 1 to 7 are the different notices.

The point to be made here is that it was the position of the Director of Public Prosecutions that there was only one matter, that the matter did not change, and these seven notices purport to relate to the very same matter.  One only has to look at the description of “matter” as one proceeds through them to see that there is a variety of descriptions.  That is what his Honour had before him.  So that we say that his Honour looking at this material could not conclude anything.  The first of the notices refers to a document behind the notice reminiscent of Mannah’s Case.  It does not purport to contain any description of anything within itself.

The second of the notices which is dated 15 March 1990 does the same thing.  It refers to some other document, some document behind the notice, which purports to describe something about the matter.  The third of the notices approaches the matter in a different way.  It appears to be incomplete.  That is a notice dated 18 May 1990.  There is set out at the bottom of the first page what purports to be the general nature of something and it appears to refer to something behind the notice.

The fourth notice sets out what is a very detailed description of what might be described as a matter concerning or relating to the acquisition by Harlin Holdings, et cetera, of securities in Elders.  What his Honour Mr Justice Vincent had before him also were memoranda within the NCA in which consideration was given to the form of the notice.  In his reasons for judgment his Honour Mr Justice Vincent set out the relevant passages from those memoranda.  It can be observed that what the National Crime Authority was doing was debating within itself what the expression of the matter in the actual notice should be.

So, in notice No 4 one sees a relatively detailed matter, but that was regarded by those within the Authority as unacceptable. Then is produced the notices found under tabs 5, 6 and 7 which have the more general application. It can be observed that faced with that material his Honour was not in any position at all to make a determination of the issue by looking at notices alone. The matter was at the very least confusing and ambiguous. One adds to that, your Honours, the complication that was before his Honour that the evidence was that the relevant last three notices did not purport to be notices referring anything at all. In fact they purported to be the reissuance of earlier notices. That was an issue that gave rise to some debate as to the circumstance in which his Honour found that there was no challenge to validity. We indeed did challenge validity but it was on a narrower ground relating to the application of section 13(2).

GUMMOW J:   When you say you did challenge, that was in some earlier proceeding?

MR JUDD:   No, the validity was challenged before his Honour in submissions.  There were written submissions made and they are found at application book pages 96 to 98 and there were some oral submissions.  I am sorry, those are the oral submissions.  The written submissions are found at pages 108 and 111 where we made a frontal assault on the validity of the notices.

GUMMOW J:   Yes, but for what purpose, for what immediate forensic purpose?

MR JUDD:   To maintain the unlawfulness of the questioning that had taken place and thus developed the voluntariness argument which was the ultimate argument that his Honour was concerned with when considering these issues.

GLEESON CJ:   With a view to having some evidence excluded.

MR JUDD:   Yes.

GUMMOW J:   That is what it was all about.

MR JUDD:   Yes.  The next matter of fact circumstance that his Honour had before him that we say is not reflected in the universal principles enunciated by the Court of Appeal was the contention by the Director of Public Prosecutions that the matter was to be resolved not by reference to the notices but by going behind.  That is a matter which has been much debated and is found in the written submissions.  We say, your Honours, that this was no doubt a convenient course having regard to the fact that one has seven notices and there is obviously a fluidity of description between those various notices and it was a matter that was developed by the Director of Public Prosecutions.

The remaining fact circumstance that his Honour had before him was the Director’s endeavour to justify the questioning that took place under section 25(8) by resort to evidence from various persons connected with the Authority that there was a belief in a connection between the subject matter of the reference and the questioning. At application book page 120 is to be found the submissions made by the Director in that regard raising the issue of the belief and state of mind of those who were involved in the questioning process in order to head off what was perceived to be a challenge and was in fact a challenge to the validity of that process.

Your Honours, the second point that I wish to develop in supplementing Mr Richter’s submission deals with the matter of law concerning the determination of the scope of the special investigation.  We developed a slightly different argument before his Honour Mr Justice Vincent and in the Court of Appeal.  We contended that the subject matter of the special investigation is to be determined apart from the notice.  That is an issue which corresponds with one to be developed in the AB application.  For that reason your Honours will forgive me if I perhaps summarise a little the points we wish to make in that regard.

What we say is this, that the Court of Appeal in dealing with that matter failed to differentiate between a number of different circumstances in which the issue might arise.  The first is the circumstance in which a member of the NCA might be called upon to rule, such as in AB.  So the member is required to look at something or to have regard to something in order to make a determination of relevance.  We say that it is inevitable and it would be wholly impractical to assume that the member in those circumstances is going to put aside the material which is obviously at the member’s disposal as part of the investigative process in determining and formulating reasons for the ruling in favour of or against relevance.  It is difficult enough to expect courts to determine a matter of that kind with the aid of what might be regarded as extrinsic evidence but where the body making the determination is in fact the investigator, has a legitimate interest in developing strategies and paths of investigation, to endeavour to put aside that material in making a determination, we say, would be wholly impractical.

The second kind of determination that the Court of Appeal failed to consider is the kind of determination which has to be made by a person being a recipient of a summons to which a notice is required to be attached. It is a very different kind of determination but nevertheless there is a statutory provision that is intended to give to the recipient some idea of not just the command to attend but also matters about which the recipient is expected to address and, pertinently, the opportunity to claim privilege against self‑incrimination. We say that the requirements set out under section 13(2) of the Act are designed for that purpose, not to set out the matter, not to define the scope of the special investigation but to provide the proper notice to the recipient of a summons.

The third circumstance in which the issue may arise is a court reviewing a ruling such as in the AB decision.  The next circumstance in which the issue may arise is in a criminal trial such as before his Honour Mr Justice Vincent.  So the point we make, your Honours, is that there are a variety of circumstances in which the issue of determining the scope of the special investigation may arise.  There is, we say, no inflexible rule to be applied.  The four corners doctrine is one which is inflexible and unduly uniform and we say in any event that the scope of the special investigation is one to be determined by reference to antecedent material such as the minutes of the IGC and not the notice – that is not the statutory intent.

Before I come to the perceived nexus issue, there is one further matter in relation to the statutory construction that I wish to say, and it is this, that unless the Act is construed as we contend it ought to be, namely, that the scope of the authorised investigation is to be found behind the notice, it will lead to the following circumstances.  First of all, that ‑ ‑ ‑

GLEESON CJ:   When you say “found behind the notice”, found where behind the notice?

MR JUDD:   If I can put it perhaps in a slightly different way, your Honour.  We say first of all that it is not to be found in the notice alone.  We say that it exists apart from the notice.

GUMMOW J:   What gives it birth outside the notice?

MR JUDD:   I am sorry, I ‑ ‑ ‑

GUMMOW J:   Where does it come from, if it exists outside the notice?

MR JUDD:   It comes from the issues which the Inter‑Governmental Council consider and decide and refer.  We say that there is something which they are required to consider, to decide upon, to exclude possibilities in respect of, for example, they have to decide that ordinary police functions are inappropriate.  They have to be considering a set of fact circumstances in order for it to be a matter and it is that which is referred.  We say, your Honours, that the notice is a notice which gives effect to the reference but it is not the document in which the scope of the authorised investigation is to be found.  It may be difficult to identify precisely in every circumstance where the true scope of the investigation may be but we say that in almost every case it can be found in the minutes of the IGC.

But, your Honours, the point really is this, that this case before his Honour Justice Vincent saw the manipulation, if I can put it that way, of the definition of the notice going on within the National Crime Authority.  So that there was debate about how it should be worded, whether it should be worded this way or that, and we end up with seven notices with at least three, possibly four, different descriptions as a result of that process.  In those circumstances it must be possible to be able to approach the matter by looking somewhere for the identification.  If not, the only conclusion that can be reached is in the absence of clarity they are all invalid.

The point that I was about to make a moment ago, your Honours, is that there is a fairness issue which is required when reviewing the NCA rulings, for example, as in AB because how is it to be determined what was relied upon if one cannot go behind to see what was actually referred. We say of course that section 13(2) differentiates between the matter and what is endorsed on the notice. We say that the construction we contend for is necessary to avoid a potential for manipulation of the kind that I have outlined to your Honours and we say also that that construction is necessary to avoid the possibility of what can be described as a de facto delegation by the Inter‑Governmental Council.

GLEESON CJ: Can I ask you one small matter. The Minister is obliged to consult the Inter‑Governmental Committee before issuing a notice under section 13 but does the Minister have to agree with the Inter‑Governmental Committee? Could the Minister, for example, take a course against which the Inter‑Governmental Committee had recommended?

MR JUDD:   The Minister could do that and, in the case of a State reference, of course, cannot because the State Minister is required to obtain the agreement of the Inter‑Governmental Committee.  So there is a distinction between a federal and a State reference in that regard.

The final matter that I wish to address very briefly is that of the perceived nexus argument.  We say, your Honours, that there is a clear inconsistency between the Court of Appeal and the decisions of the Full Federal Court in A1 and AB.  We say that in the Full Federal Court there is clear acknowledgment of a role of a perceived nexus in the exercise of power and that is set out plainly in the majority decision in A1 at pages 286 to 287 where reference is made to Ross v Costigan and Douglas v Pindling.  If your Honours please.

GLEESON CJ:   Thank you, Mr Judd.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the applications for special leave and our learned friends’ oral arguments relate to a number of distinct issues. We would seek to divide them into four. First, whether the description of the matter referred is to be found in the notice under section 13(1) or in some way de hors the notice. The second is whether a nexus between the question and the matter being investigated has to be actually perceived, as distinct from existing, at the time the question is asked. The third is the issue of voluntariness and the fourth is the question whether the points of law referred arose together with some other related matters.

May I proceed to deal with them in that order. The first of those is whether the description of the matter referred is to be found in the section 13(1) notice. Your Honours, before coming to that may I just say one or two things about the case itself. The first thing we would seek to say is that, whilst our learned friend Mr Judd referred to there being seven notices, in fact there were only three that were of any relevance so far as the proceedings were concerned in the Court of Appeal. That that is so – and they are the ones numbered 5, 6 and 7 in the bundle that was handed to the Court and they are the notices of September 1990, one from the Commonwealth, the two corresponding ones from Victoria and South Australia. They say effectively mirror things.

Your Honours will see at page 538 in volume 3 at line 10 that Justice Brooking in his reasons says:

Something more must now be said about the notices actually given.

Then he refers to the three notices at page 538 in the paragraph going through the remainder of that page and to the top of page 539.  I will not read that out of course, but your Honours will see that he refers to the fact there had been other notices, but the short fact is that the court was and the trial judge had been dealing with the three notices given in September.  That is what the court was concerned with.  That is the first thing.

The second thing is that if one is looking to see what the Court of Appeal actually did in this case, the best starting point is to see what the questions were and what the answers were that were given to them.  In that regard the questions relevantly appear in volume 3 at page 536.  Your Honours will see the four questions A, B, C and D that are germane to this issue and the answers can be seen at the top of page 563.  Could I ask your Honours to hold, as it were, page 563 with those answers.

What your Honours will see is that the questions A, B, C and D are expressed by reference to looking at the notice itself or by looking at identified other matters.  Again, I will not read it out but your Honours will see what is set out there and then your Honours will see the answers at page 563 which are responsive to those particular questions.  It may be other questions may arise – who knows – in other types of proceedings but those are the issues of law or the points of law on which the court was asked to express a view.  In our submission, the views expressed by the court in that regard were not sufficiently attended by doubt to merit the grant of special leave.

May I seek to develop that, your Honours, and do so very briefly, if I may.  The first is to take your Honours to the terms of the Act, the National Crime Authority Act.  Your Honours will see that the starting point is the definition of “special investigation” which your Honours will see in section 4(1).  It is an:

investigation that the Authority is conducting in the performance of its special functions –

Could I just pause there to say, to save going back to the definition section in two other respects, that on what should be the preceding page your Honours will see a definition of “relevant criminal activity”.  That definition picks up the expression “relevant offence”.  “Relevant offence”, as your Honours will see from the definition of that term, involves potential criminal activity of a significant kind.  We are not talking about shoplifting by titled ladies.

Your Honours will see, if one goes from that then to the terms of the provision of the Act that deals with the functions of the Authority, they are set out ‑ ‑ ‑

GLEESON CJ:   The offence has to involve a sophisticated technique.

MR JACKSON:   Yes, your Honour.  There is a number of things going together and then the range of offences is in paragraph (d) of the definitions.

GLEESON CJ:   So a crude illegality would be outside the scope of this?

MR JACKSON:   I am sorry, your Honour?

GLEESON CJ:   Crude illegality would not be covered?

MR JACKSON:   I did not hear what your Honour said.

GLEESON CJ:   It has to be sophisticated?

MR JACKSON:   Yes, your Honour, crude illegality.

CALLINAN J:   Smooth criminals only.

MR JACKSON:   One sees then the functions of the Authority set out in section 11. The opening words of 11(1) and 11(2) draw a distinction between, on the one hand, the general functions of the Authority and, on the other hand, the special functions of the Authority. If one goes to section 11(1), your Honours will see the general functions of the Authority and (b) refers to investigations other than pursuant to a section 14 reference. If one goes then to subsection (2), the special functions are, and then (a) deals with a reference made under section 13 and (b) deals with a reference made under section 14.

If one goes then to section 13, which is the operative provision in the present case, what your Honours will see is that it says in subsection (1) that:

The Minister may, after consulting the Inter‑Governmental Committee –

and they may agree or not –

by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation –

Your Honours, until that point the Authority has nothing and thereafter that is the Authority’s charter.  There is nothing else that it has.  That is the document which sets out what it is to do.  If one looks then at subsection (2) which requires that the notice “describe the general nature of the circumstances” and so on, “state that the relevant offence is” and so on ‑ ‑ ‑

GLEESON CJ:   May I ask would the Authority have access to the minutes of the Inter‑Government Committee?

MR JACKSON:   Your Honour, it may or may not.  It may in fact have them.

GLEESON CJ:   That would seem to suggest that if the Authority did not have access to the minutes of the Inter‑Governmental Committee and they were definitive of the matter, the Authority would not know what the matter was.

MR JACKSON:   No, your Honour. There is no reason at all why the Authority would have to have them. What one sees is that the Inter‑Governmental Committee, having had a consultation with the Minister, may or may not agree with the Minister but it is the Minister’s notice. The Minister determines what it is and then he gives it to the Authority and the Authority goes on from there. The fact that it is a charter – “charter” is perhaps the wrong word but it is the basis, indeed the only basis, on which the Authority can operate – can be seen when one goes to the provisions dealing with the hearings. In section 25 your Honours will see in subsection (1) that it is only where there is a special investigation being conducted that the Authority can hold a hearing. Then your Honours will see in section 28 that where there is a hearing being conducted under section 28(2):

A summons…..requiring a person to appear before the Authority at a hearing shall be accompanied by a copy of the notice –

The purpose of that obviously is so that the person who is summoned to attend is in a position to know what the basic nature of the inquiry is and can see whether what is sought from him or her is something that is potentially relevant to it.

So, in our submission, if I could put it shortly, it is quite right to say that if one is looking to see what is the ambit of the matter that has been referred, the place to go – and there is really no other place to go – is to the notice that referred it.  No doubt it may be that the notice refers to some subject matter which is of general application.  It might refer to a suburb.  To find out where the suburb is or houses in a suburb, you have to look at something else, but that is just in the ordinary course of events.

What we would seek to say, your Honours, is that the terms of the provisions to which I have referred make it apparent that it is the notice.  The second thing is that the decision of the Court of Appeal in this case and the decision of the Full Court of the Federal Court in AB are completely correct in taking that view.  May I take your Honours very briefly to what was said in AB 156 ALR 52 at page 59. Your Honours will see at line 25 their Honours say:

In our view the nature and scope of the matter referred for investigation is to be ascertained from the notice alone. That is apparent from s 13 itself.

They then go on to discuss section 13.

I will just say in relation to the suggestion that was raised, there was some difference of view between this case and AB. Your Honours will see at page 60 line 30 their Honours say:

The precise question now under consideration was examined by the Victorian Court of Appeal in –

in effect, this case.  Then your Honours will see the discussion of that topic going through to page 61 and quotations from Justice Brooking’s reasons.  Then at line 29 on page 61:

We agree, with respect, with his Honour’s opinion.  The answers given to the first and fourth questions accord with our analysis of the Act.

They go on to deal with it a little further.  So, your Honours, the position one has, in our submission, is, to put it very shortly, that the ‑ ‑ ‑

GLEESON CJ:   Just before you leave that case, it was put by Mr Judd that there is an inconsistency between the approach of the Full Federal Court and the approach of the Court of Appeal in relation to the nexus matter.

MR JACKSON:   Your Honour, I was going to deal with nexus matter next, as it were.  We would submit the answer is that there is not, but could I just say one more thing about this aspect before on to that.  What I wanted to say was this.  In relation to the question of where one goes to find out what the matter is, the situation is there are decisions of two intermediate appellate courts to the same effect.  They are unanimous decisions and they are, in our submission, if one looks at the terms of the Act, not sufficiently attended by doubt.

Could I move then to the perceived nexus issue.  That was questions E to G in the matters before the Court of Appeal.  Once again, we would submit this is an issue on which the decision of the Court of Appeal is not attended by sufficient doubt.  May I seek to identify first what was relevantly in issue in that regard.  The central question was the correctness of the trial judge’s view that, whether or not a nexus actually existed between the subject being inquired into on the one hand and the matter referred to the NCA on the other, the persons investigating on behalf of the NCA had to actually perceive the existence of such a nexus.

The nature of the issue was adverted to in the Court of Appeal in volume 3 at page 558 at about line 13 and your Honours will see, having referred to some of the reasoning of the trial judge, his Honour says:

That phrase in my opinion is not concerned with the state of mind –

and he is speaking of the phrase “for the purposes of a special investigation” –

of members of the Authority or of other persons who might be thought to represent it.  It requires only that the subject to be inquired into shall in fact fall within the scope of the matter that has been referred to the Authority.

Your Honours, at the heart of the argument for the other sides is to be found the phrase “for the purposes of a special investigation” used in three provisions of the Act. May I take your Honours to them very briefly. They are section 25(1) which simply says:

For the purposes of a special investigation the Authority may hold hearings.

Secondly, section 25(8):

At a hearing before the Authority for the purposes of a special investigation –

Then section 28(7) which says:

The powers conferred by this section are not exercisable except for the purposes of a special investigation.

I have taken your Honours already to the provisions that distinguish between special and general investigations.  What we would simply seek to say is that those words seem clearly to do no more than to refer to the circumstance that the Act draws a distinction between special investigations and others and gives powers in the case of special investigations that do not otherwise exist.  What we would seek to say about that, your Honours, is that the decision arrived at by the Court of Appeal was one again not sufficiently attended by doubt.

If I could come then to the point your Honour the Chief Justice asked me, our learned friends suggest that in some way there is a difference between the approach taken by the Court of Appeal and the Full Court of the Federal Court in AB.  In our submission, there is not.  I had myself thought that they were suggesting there was a difference in relation to the earlier issue and that was on the approach of the Full Court of the Federal Court to the question of the ambit of – what one actually does when applying the test to particular circumstances.  In relation to that, your Honours, one can see that the Full Court specifically adopted the same test as had been applied by the Court of Appeal.

The reference in that case to the evidence of Ms King seems to have been on the question of bona fides rather than any other question about the ambit of the reference.  Perhaps I can just say so far as it relates to the particular question with which I have just been dealing, it seems to deal with the question of bona fides rather than anything else.  I do not know that I can take my answer beyond that on that point.

Your Honours, the third issue concerns the question of voluntariness.  A rather curious aspect – this is one dealt with in our learned friends’ written submissions.  May I say something very briefly about it.  A rather curious situation exists in relation to it.  It is what was dealt with in questions H to the end that were recast by the Court of Appeal.  The applicants do not seem really to contest that if the questions were to be answered, the answer given was correct.  Rather the issue is whether the question should have been answered at all.

One sees at page 582 in volume 3 in the written submissions on behalf of the firstnamed applicant in paragraphs 3.11 to 3.13 – I am not certain how much time I have in response to our learned friends.

GLEESON CJ:   You have a total of 20 minutes.

MR JACKSON:   Thank you, your Honour.  Your Honours will see those paragraphs to which I referred.  Then at page 621 in paragraphs 20 and 21 for the other applicant.  It is apparent, in our submission, that the issue did arise at the trial.  In that regard could I take your Honours to volume 1 at page 140 line 13, page 144 line 2 and page 144 line 27 to page 145 line 2 and finally at page 147 line 10.  The Court of Appeal took the view that the issue had arisen.  Your Honours will see in volume 3 at pages ‑ ‑ ‑

GUMMOW J:   Whether it did or did not, it does not sound like a very hot special leave point.

MR JACKSON:   That is what I was going to say, your Honour.  At best for the applicants, the case is one where there is a disagreement about what took place at the trial and the Court of Appeal took a particular view of it.  That is all that it amounts to.  In relation to the last group of issues, we would submit first of all the view taken by the Court of Appeal that a point of law had arisen in the case if the judge had decided it, even if the parties did not seek its determination, is not attended with sufficient doubt.  As the Court of Appeal’s reasons at page 541 line 24 and page 541 demonstrate, there are many circumstances in which a trial judge’s decision on a point of

law, even though the decision was of his own motion, might properly be the subject of a reference.  The case of an unrepresented party where the judge goes too far in favour of the party is an obvious example.

Your Honours, the second point we would seek to make is this, that there is a suggestion put in various ways that the Court of Appeal was not entitled to look to the facts of the case. That does not seem very consistent with the terms of section 450A(1), that is a point of law arising in the case; secondly, with the scheme of section 450A for representation of the acquitted person at the hearing in the Court of Appeal; and thirdly, with the dicta of members of this Court in Director of Public Prosecutions v B, 155 ALR 539 at page 543 in paragraph [11].

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Richter.

MR RICHTER:   If the Court pleases.  Since I have not addressed the Court on 450A at any length, may I as my first point in reply go to what our learned friend, Mr Jackson, said in relation to the voluntariness issue and the other issues in the way that they arose.  Our learned friend says that a point arises even though it may not have arisen specifically in the sense of a contest over it.  We say this case is a bit different.  The Crown actually chose to run the case in a particular way and chose to do so deliberately by the calling of evidence because it became apparent and was apparent from the face of the notice that the matter was not – that a judge could not look at the face of the notice and say the foreign exchange transactions are within it.

They then sought to show that it was and chose to do it and ran the evidence.  Now what they did before the Court of Appeal was to say, “No, we ran the trial in a particular way but now we want this court to fix our error” – that is the Court of Appeal – by in fact saying that, “The way we chose to run it is wrong and we shouldn’t have and you should therefore do it the other way”.  That is wrong; that should not be permitted to happen.  That is what did happen at the Court of Appeal.

The second point to which I want to go in what necessarily has to be a very brief reply is this. Our learned friend’s advertence to the expression “for the purposes of a special investigation” in sections 25(8) and 28(7) gives those expressions no work. That is No 1. More dangerously, what it does is to allow a member of the Authority conducting an investigation to arrogate to himself power that was never given, and it allows it in that way. But if the member says, “I’m going to have a coercive hearing in relation to something which is not actually related, directly related or indirectly related, but I am going to have a coercive hearing and I’m going to issue a summons”, that in itself would make it for the purposes of a special investigation because summonses can only be issued for the purposes of a special investigation.

Our learned friend Mr Jackson’s argument is circulatory in the sense that if a summons is issued, then it must be, by definition, for the purposes of a special investigation.  In that way, the NCA becomes completely uncontrollable.  So, that, in our respectful submission, is - - -

GUMMOW J:   Which section are you referring to, Mr Richter?

MR RICHTER:   I am referring to, for example, section 25(8) which is what our learned friend referred to. The prefatory words to subsection (8):

At the hearing before the Authority for the purposes of a special investigation.

And the way that he construed that objectively as - - -

GUMMOW J:   No, no.  It says, “may, so far as the Authority thinks appropriate”.

MR RICHTER:   Yes, that is the second part, but my learned friend was not referring to that aspect of it.  He was referring to the expression right at the beginning of subsection (8), “for the purposes of a special investigation.”, and this is the point at issue, really, as to whether or not that has any work to do.  We say it does and has to be married with the expression that your Honour Justice Gummow has raised as being more than just something that distinguishes it from a general investigation because, to say that the words mean nothing more than to say it is for a “special investigation” is circulatory and allows the Authority to define what is the proper subject matter for the investigation during a special investigation.  That is the problem with it.

Likewise, with section 28. If your Honours look at section 28(7):

The powers conferred by this section are not exercisable except for the purposes of a special investigation.

What our learned friend says is circulatory because everything that is done by way, for example, signing a summons and issuing the summons and serving it is, by definition, in a special investigation and therefore would go for the purposes of a special investigation unless those words meant a little bit more than that.  We say that in section 28(1), when a member summonses a person, he actually has to say to himself, “Is this summons related”, in other words, does it bear relevance or connection with the

subject matter of the special investigation?  If it does not, I am not permitted to issue the summons.  If it does, then I am. 

So, there is a qualitative assessment to be made necessarily by the member as to whether or not what he is about is about a proper discharge of functions to conduct the special investigation.

GLEESON CJ:   Thank you, Mr Richter.

MR RICHTER:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr Judd.

MR JUDD:   One point only, your Honours.  I was going to direct your Honours’ attention to the passages in the relevant authorities at which the conflict arises.  If I could take your Honours to AB v National Crime Authority 156 ALR 52, and direct your Honours’ attention to page 64, the passage under the heading, “Does Vicinvest fall within scope of reference”. Your Honours will see there the short passage:

In National Crime Authority v A1 (at 145) von Doussa and Sundberg JJ said that the Authority should not be regarded as acting outside its charter “so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred”. 

That is, of course, drawn from the decision in A1 75 FCR 274, and the principles underlying that proposition are found at pages 286 to 287. In our submission, what is there being enunciated is that there must be a turning of the mind to the connection. It cannot mean other than that. There is a plain inconsistency between those propositions and what his Honour Mr Justice Brooking and thus the Court of Appeal held and enunciated at application book 558, the passage referred to by my learned friend, Mr Jackson. If the Court pleases.

GLEESON CJ:   We will give our decision in this matter after we have heard argument in the matter of AB.

AT 10.42 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.16 AM:

GLEESON CJ:   In the matters of The Firstnamed Acquitted Accused Person and The Secondnamed Acquitted Accused Person v The Director of Public Prosecutions, in so far as the issues in those matters extend beyond the issue that was involved in the matter of AB v National Crime Authority, the Court is of the view that the issues raised are not appropriate for the grant of special leave, and the application for special leave to appeal is refused.

There is an application for costs made and that application is refused because of the criminal nature of the original proceedings.

So, the only orders that we make in relation to those two matters are that the application for special leave to appeal is refused.

AT 11.17 AM THE MATTER WAS CONCLUDED