Hyder v Commonwealth of Australia

[2013] HCATrans 194

[2013] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S328 of 2012

B e t w e e n -

NAZMUL HYDER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2013, AT 2.25 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR J.A. RAINE for the applicant.  (instructed by Law Partners)

MR D.J. BROGAN:   May it please the Court, I appear with my learned friend, MR N.M. KIRBY, for the respondent.  (instructed by Australian Government Solicitor)

CRENNAN J:   Yes.

MR GROSS:   Your Honours, we submit this case raises general legal issues of public importance on whether and when a federal police officer can justify a warrantless arrest on the basis of a bald or hearsay statement by either another police officer or an ATO official without needing to examine the objective factual circumstances which support that plea.

CRENNAN J:   Now, you say a bald statement.  There was quite a lengthy affidavit, as I understand it.

MR GROSS:   Yes, your Honour, there was.  Would it assist ‑ ‑ ‑

CRENNAN J:   The bald statement is a reference, is it, to a particular sentence?

MR GROSS:   Yes, because in the end, if your Honours would go to the application book, page 23, the court fastened upon what appears at line 20 on page 23 – this is from the affidavit of the ATO officer, at line 18:

ATO records show that the taxpayer Nazmul Hyder is linked to the following bank accounts nominated to receive 2008 refunds of income tax . . . 

u.Seized bank records for the above accounts . . . show that the bank accounts were established in the name of Nazmul Haider and not Nazmul Hyder.  Identity documents produced at the time of the establishment of these bank accounts reveal they are one and the same person.

Then in (v) there is a list of the documents which are basically a New South Wales learner’s driver’s licence in the name of Mr Hyder, a Bangladesh driver’s licence in the name of Nazmul Haider – that is the other name – and a Bangladesh passport in the name of Nazmul Haider.  Those documents were produced so that the bank accounts could be opened.

CRENNAN J:   Now, the principles are well settled:  George v Rockett, Ruddock v Taylor.  Are you going to identify for us how the majority in the Court of Appeal on your account misapplied principle?

MR GROSS:   Yes, I will, your Honour.  Your Honours, the proposition we put, and I will take your Honours to the passage, is that the arresting officer, Mr Gaggin, simply acted on the basis of a conclusion that the ATO officer’s accusation must be automatically taken at face value and out of sheer deference to the prestige of the office of the ATO senior officer.  What we will show is that Mr Gaggin made a conscious decision to refrain from the necessary task of independently examining what was known or reasonably capable of being known at the time.  Would your Honours just go to page ‑ ‑ ‑

KEANE J:   So that he can never act reasonably unless he makes his own original inquiries?

MR GROSS:   He has to look at the reasonably available documentation.  Your Honour, can I just point out one matter if I can, so that is not seen as being an undue burden?  Your Honours, back at page 23, line 25, which I just read to your Honours, your Honours will see that the assertion there is not as to an identification of a person, but rather an assertion as to what – if you go to the italics:

Identity documents produced at the time of the establishment of these bank accounts reveal they are one and the same person.

The affidavit actually sets out that there are documents which show certain things.  What we wish to point out is that there was deliberately no attempt made by Mr Gaggin to look at those documents which are said to show these things.   It was not a simple identification as in “this was the offender who committed the offence, et cetera,” even on a hearsay basis.  If we just go to page 137, your Honours will pick up the point.  Your Honours, at 137, line 1.  He is being asked about the various documents which are said to be false documents to open these accounts.  That is at line 8.  Then Mr Raine for the applicant asked these questions:

Q.       But even if we assume that they are false documents, what is it that causes you to believe that the man you arrested was the man who used those documents to open those bank accounts?
A.       The previous paragraph –

That is referring to (u) –

Q.       It’s that second sentence in paragraph U?
A.       “Identity documents produced at the time of the establishment of these bank accounts reveal they are one and the same person”.

He is quoting it –

Q.       But you’re not able to explain, are you, how those records form that conclusion?
A.       No, I’m not.

Q.       You simply accept that sentence as being correct?
A.       Yes.

Q.       Did you give any thought to how those documents establish that connection?
A.       It’s an ATO investigation and it wasn’t my obligation to double check the work of the senior investigator from the tax office.

Q.       You’ve said before that every belief that you formed prior to exercising the power of arrest was premised on this understanding that Haider and Hyder were one in the same person, you said that, didn’t you?
A.       Yes.

Q.       And you accept that, don’t you, that you can’t explain how the evidence establishes that conclusion?
A.       Well the evidence to me was a sworn affidavit from the tax office.

Q.       Yes, I’m not suggesting that Mr Anderson didn’t believe it.  I’m suggesting that it might be wrong?

Here is the critical answer –

A.       Well as I stated, this is a tax office investigation, and that it’s not my obligation to double check the work of Mr Anderson.  In my position, I need to take him at face value when he goes before a court and swears this information, and then he brings this information to the federal police, I need to trust on face value what he tells me, otherwise it becomes an AFP investigation, and this was not that.

There are some pretty startling comments that arise from reading that passage.  It involves the disturbing proposition that an arresting AFP officer should avoid looking at the underlying facts so as to avoid the matter becoming an AFP investigation.  This is inappropriate where the AFP, and not the ATO, is carrying out the warrantless arrest and also where it is the arresting police officer who has to account for, in effect, what has been done ‑ ‑ ‑

KEANE J:   But is not the question ultimately whether he had a reasonable basis for proceeding to arrest your client?

MR GROSS:   Yes, your Honour.

KEANE J:   What he gets is an affidavit from an officer of the ATO which contains assertions that, if accepted, would give him a reasonable belief.

MR GROSS:   Your Honour, the reasoning whereby he explained how he arrived at the pertinent decision was effectively that beyond this assertion in this paragraph he had no other data.  One then requires, consistently with the authorities which are quoted in the judgment, that he has to examine the available circumstantial documentary evidence just to see whether it does show that.  Otherwise he has, in effect, become, as it were, a servant of whoever has drafted the affidavit in the ATO.

CRENNAN J:   Justice McColl at paragraph 37, application book 37, from the second sentence down, describes the fact that the sentence of which you complain was only one part of an extensive affidavit, and that the affidavit covered a very complex:

fraudulent tax return scheme, the sources of his information, the modus operandi of those suspected of being involved in the scheme –

How do you factor those aspects in, having regard to the submission you were just making?

MR GROSS:   Your Honour, could I just work down through those criteria very briefly?  Your Honours, as Justice Basten found, the only source of the relevant alleged reasonable belief of Mr Gaggin was the paragraphs we read to you, but her Honour went to different matters which themselves were not circumstances bearing upon whether there was a reasonable belief.

Your Honour, the complexity of the scheme does not establish anything in terms of reasonable belief.  The sources of his information, that is basically that something has come from the ATO, it is not an affidavit, and that contains that assertion.  The principles are quite clear.  You cannot just, as it were, act upon the opinion or assertion of others.  You have to be able to justify these matters in, for example, a wrongful arrest suit by pointing to the objective circumstances.

The modus operandi of those suspected is merely an indication of how identity theft occurred, and the crime was attempted.  It says nothing about the identity of the offender.  The strategy the ATO had developed to investigate these offences, once again, adds nothing.  When we go down a bit further, paragraph 38:

Mr Anderson’s affidavit identified a number of primary records said to reveal relevant facts concerning the appellant.

You will see four lines down there, there is a reference to various documents, none of which pointed the finger at Mr Hyder –

The ATO’s records were said to show that the appellant was “linked to” bank accounts nominated to receive the fraudulent income tax refunds.

But your Honours, the only relevant link is the fact that we have the opening of those bank accounts, in effect, using those false documents – another person has done that, and so that is just the modus operandi of those who commit the offence.  There is no such link of a relevant probative kind.  It is merely describing how the offenders used Mr Hyder’s identity and created documents to that end, as they had done with many other similar persons.

CRENNAN J:   But the section 3W question, in the context of all those matters with which you have just been addressing us, is always, is it not, whether the material objectively provided at the time of the arrest reasonable grounds for the foundation of the arresting officer’s belief?

MR GROSS:   Yes, but your Honour, in terms of “provided”, it has to be the arresting officer being able to justify the matter rather than on a bare say‑so from someone else.  If in fact there are documents which he can look at in order to determine whether the documents in effect establish what is asserted, so a bare allegation or a bare opinion coming from the ATO does not per se carry any particular weight.  It is not like a regular informant in relation to drug transactions who has a record of reliability.  What you have is one government official who does not have to account for himself in relation to the warrantless arrest, basically making an assertion where it is the police officer’s duty to check ‑ ‑ ‑

CRENNAN J:   To independently interrogate those documents?

MR GROSS:   Well, to look at the documents, if there is an assertion – and this is the paragraph relied on about these documents.  In fact, there are only, I think, three documents there – there are in fact two drivers’ document plus a passport – two of which are in the name of Haider and not Hyder.  Justice Basten made the point there was no evidence based on photographic comparisons or handwriting comparisons to indicate that whoever presented these documents was Mr Hyder rather than some other person who used in effect both spellings, Hyder and Haider, in order to open up the bank account in an overall scheme where numerous bank accounts were being created to make good the fraud.

We submit that the scrutiny of the court in relation to warrantless searches is defeated if in fact it is evident not only that the police officer did not look at that which is capable of being known, but in fact made a conscious decision not to because otherwise it would become an AFP investigation.  Refraining from looking is, in effect, wilful blindness, not performing the role of a police officer making a warrantless arrest, bearing in mind of course that when there is a warrantless arrest, there is a high onus – where civil liberties are involved – in making sure that it can be justified appropriately according to the tests laid down by the appellate courts.

Your Honours, it is one thing to set out, as Justice McColl did, a whole bunch of legal propositions and quotations drawn from good appellate authority, but then to adopt a method of examining the issue which is alien to those very concepts.  Your Honours, could I just point out one other thing, if I may?  Your Honours, the Court of Appeal by majority found that the trial judge had not erred – I know we are not looking at the trial judge, but just to see what is being referred to, at page 6 of the book, paragraph 18, line 10, I will just read what Judge Murrell said:

Had the officer examined the identity documents produced to the banks and compared them with the plaintiff’s genuine documents and known circumstances, he may well have decided that the documents produced to the banks were not authentic and provided no evidence that the plaintiff was the offender.  However, he was not obliged to involve himself in the investigation.  The officer was entitled to treat apparently reliable hearsay material as providing “reasonable grounds” for a belief that the plaintiff was the offender who had opened the accounts –

Now, just two things about that.  The first thing is we do acknowledge that the evidence does not have to be all of the evidence.  It does not have to positively prove the prima facie case, and that is acknowledged.  But the second thing is that is this truly reliable hearsay material as to a fact, or is it really just an opinion by another person?  Justice McColl, in her judgment, weighed up the question of whether it was an opinion or whether it was a factual conclusion.

Your Honours, in the end, her Honour did not, as it were, decide the case on that basis, but that is a very important question to ask when you are discriminating between the two classes of what I might call secondary materials that an arresting officer can rely upon.  There is one class which obviously is what, in an operational sense, information comes to you about an offender and an offence, and obviously you get that from another police officer and you can get it from a citizen, or in a team situation or taskforce

investigation, factual information can come to you even though you have not personally pored over the primary data.

But this is a totally different situation.  This is just where there is the bare opinion as to what the documents show.  The documents show that X and Y are the same person.  You should be able to scrutinise those – I appreciate that taskforce investigations are complex – but the liberties of the citizen are also important, even in that setting.  Even though it might be difficult to investigate these things, that is no reason to bypass the protection which has been laid down by the appellate courts. 

So we do not actually see the principles being put into effect and, your Honours, we would submit that this Court of Appeal judgment gives an open invitation to any police officer to refrain from looking at documents you can look at, because someone has made some assertion, the basis of which is capable readily of being checked by him, but he refrains from doing so because, in effect, there is no need to do so.

Your Honours, the wonderful words stated by courts about the importance of warrants as the primary way of arresting people and the liberty of the citizen and the like are as nothing if this endorsement of that sort of approach is allowed to stand.  Your Honours, we submit for obvious reasons, that an issue of public importance in relation to a general question of law does emerge and the matter would benefit from a clarification by the Court.

CRENNAN J:   Thank you, Mr Gross.  We do not need to trouble you, Mr Brogan.

This application for special leave to appeal concerns the question of whether a police officer held a belief on reasonable grounds, as required under s 3W(1) of the Crimes Act 1914 (Cth), that a person arrested without warrant had committed an offence. The primary judge found that the officer’s belief, based on sworn affidavit evidence provided by the Australian Taxation Office, was held on reasonable grounds. A majority of the Court of Appeal of the Supreme Court of New South Wales upheld the primary judge’s conclusions.

The decision of the Court of Appeal turned upon the application of established principles to the facts of the case.  On the facts found, the case raises no issue of principle suitable for a grant of special leave to appeal.  There are insufficient prospects of success of an appeal to warrant such a grant.  Further, we are not persuaded that it would be in the interests of justice generally, or in this particular case, that there be a grant of special leave.  Special leave to appeal is refused with costs.

Adjourn the Court to 10.15, Tuesday, 3 September in Canberra.

AT 2.46 PM THE MATTER WAS CONCLUDED