Luppino v Fisher - [2018] FCA 2106

FEDERAL COURT OF AUSTRALIA
Luppino v Fisher [2018] FCA 2106

File number: SAD 288 of 2018

Judge: WHITE J

Date of judgment: 19 December 2018

Catchwords: CRIMINAL LAW – interlocutory application by the Second Defendant seeking disclosure from the Plaintiff of the password(s) to a mobile phone pending resolution of the Plaintiff’s challenge to an order made pursuant to s 3LA of the Crimes Act 1914 (Cth) – consideration of the common law privilege against self‑incrimination – the disclosure sought would infringe the privilege – application dismissed.

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 16

Crimes Act 1914 (Cth) s 3LA

Federal Court of Australia Act 1976 (Cth) s 23

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 6

Cases cited:
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1

Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281

Date of hearing: 19 December 2018

Registry: South Australia

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: Catchwords

Number of paragraphs: 36

Counsel for the Plaintiff: Mr M Abbott QC with Mr S McDonald

Solicitor for the Plaintiff: Patsouris & Associates

Counsel for the First Defendant: The First Defendant did not appear

Counsel for the Second Defendant: Mr P d’Assumpcao

Solicitor for the Second Defendant: Australian Government Solicitor

ORDERS

SAD 288 of 2018

BETWEEN:
DANIEL LUPPINO

Plaintiff

AND:
GREGORY CHARLES FISHER

First Defendant

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Second Defendant

JUDGE:

WHITE J

DATE OF ORDER:

19 DECEMBER 2018

THE COURT ORDERS THAT:
1.The reference to the “Third Defendant” in Order 4, 7 and 8 in the orders made on 6 December 2018 be amended to read the “Second Defendant”.
2.The Second Defendant’s Interlocutory Application of 10 December 2018 is dismissed.
3.The Second Defendant is to pay the Plaintiff’s costs of, and incidental to, the application.

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

EX TEMPORE REASONS FOR JUDGMENT
WHITE J:

This is a judgment on an interlocutory application seeking the disclosure by the plaintiff, in confidential form, of the password or passwords to a mobile phone and to the applications on that phone.
Although the application involves some important issues of principle, there are a number of reasons why it is desirable for the Court to give a decision on it now, rather than reserving judgment. One of these is that the very nature of the relief which is sought is such that a deferral by the Court of its decision could, by itself, result in the effect which the application is intended to avoid. Another is that the imminent holiday period many mean that some time may lapse before the Court can prepare formal reasons, even though it has reached a firm view as to the fate of the application.
On 30 August 2018, the first defendant, who is a Magistrate in the Magistrates Court of South Australia, made an order requiring the plaintiff…

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: [2018] FCA 2106
Decision Date: 19 December 2018

CaseChat Overview and Summary

Luppino v Fisher is a case where the Second Defendant sought disclosure from the Plaintiff of the password(s) to a mobile phone while the Plaintiff’s challenge to an order made under s 3LA of the Crimes Act 1914 (Cth) was being resolved. The dispute arose from the Plaintiff’s challenge to an order made under section 3LA of the Crimes Act 1914 (Cth). The court was required to determine whether the Plaintiff was compelled to disclose the password(s) to a mobile phone to the Second Defendant.

The court considered the common law privilege against self-incrimination in making its decision. It found that the disclosure sought would infringe the privilege. The court noted that the privilege against self-incrimination is a fundamental aspect of the criminal justice system, designed to protect individuals from being compelled to provide evidence that could incriminate themselves. In this case, requiring the Plaintiff to disclose the password(s) to the mobile phone would compel them to provide information that could potentially incriminate themselves. Therefore, the application for disclosure was dismissed.

The court's decision was based on the principle that the privilege against self-incrimination is a fundamental right that must be protected. The court recognised that the disclosure sought would infringe this privilege and was therefore not permissible. The court's decision was final, and no further orders were made in relation to the application.

Orders