Mansfield v Australian Crime Commission - [2003] FCA 1059

FEDERAL COURT OF AUSTRALIA
Mansfield v Australian Crime Commission [2003] FCA 1059
CRIMINAL INVESTIGATIONS – Australian Crime Commission Act 2002 (Cth) – examination for purposes of a special Australian Crime Commission operation/investigation – whether privilege against self-incrimination abrogated – whether legal professional privilege abrogated – proceedings pending against applicant examinee in Supreme Court under State Criminal Property Confiscation Act – whether examiner authorised to compel answers to questions which might result in contempt of court or other interference with the course of justice – whether principles explained in Port of Melbourne Authority v Anshun Pty Ltd of any relevance to applicant’s predicament.
Australian Crime Commission Act 2002 (Cth), ss 4, 7A, 24A, 28, 30, 46B, 57
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(b)
Criminal Property Confiscation Act 2000 (WA), ss 16, 20, 43(3)(c), 79
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 considered
Hamilton v Oades (1989) 166 CLR 486 considered
Sorby v The Commonwealth (1983) 152 CLR 281 considered
Daniels Corporation International Pty Ltd v Australian Competition and Consumer
Commission [2002] HCA 49 referred to
Commissioner of Taxation v De Vonk (1995) 61 FCR 564 followed
NIGEL CUNNINGHAM SWIFT MANSFIELD v AUSTRALIAN CRIME
COMMISSION
W134 of 2003
CARR J
3 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W134 OF 2003

BETWEEN:

NIGEL CUNNINGHAM SWIFT MANSFIELD
Applicant

AND:

AUSTRALIAN CRIME COMMISSION
Respondent

JUDGE:

CARR J

DATE OF ORDER:

3 OCTOBER 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The decision of the examiner Mr James Bennett SC (“the Examiner”) made by way of a ruling on 4 June 2003 in the course of an examination conducted under Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth), being the ruling referred to on page 232 of the transcript of that examination, be referred to him for further consideration in the light of the accompanying reasons for judgment delivered today.
2.The applicant have liberty to apply on 48 hours notice should the Examiner (or any other examiner in his place) in the conduct of an examination of the type referred to in the accompanying reasons for judgment delivered today overrule any objection taken by the applicant to specific questions on the ground of legal professional privilege or on the ground that to compel such answers might constitute a real or substantial risk of interference with the course of justice in the “Confiscation proceedings” referred to in the accompanying reasons.
3.The application be otherwise stood over with liberty to apply generally.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W134 OF 2003

BETWEEN:

NIGEL CUNNINGHAM SWIFT MANSFIELD
Applicant

AND:

AUSTRALIAN CRIME COMMISSION
Respondent

JUDGE:

CARR J

DATE:

3 OCTOBER 2003

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

This is an application under s 57 of the Australian Crime Commission Act 2002 (Cth) (“the Act”), when read with the Administrative…

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: [2003] FCA 1059
Decision Date: 3 OCTOBER 2003

CaseChat Overview and Summary

In the matter of Mansfield v Australian Crime Commission, the applicant, Mr Mansfield, sought to challenge the legality of certain actions taken by the respondent, the Australian Crime Commission, in the context of asset freezing and confiscation proceedings. The primary dispute centred around the extent to which the statutory powers conferred upon the respondent by the Commonwealth Parliament intended to suspend common law rights or privileges, particularly concerning the admissibility of evidence obtained through coercive examinations. The High Court of Australia was tasked with determining whether the statutory provisions intended to permit evidence obtained during examinations to be used in confiscation proceedings, which could potentially interfere with the administration of justice.

The legal issues before the court included whether the statutory scheme authorised the respondent to compel the applicant to answer questions in a manner that could lead to the use of such evidence in confiscation proceedings, and whether such use of evidence would constitute a contempt of court. The court also had to consider whether there was an express or implied intention in the statutory provisions to permit such interference with the administration of justice. The respondent argued that the statutory provisions explicitly or implicitly intended to allow the use of examination evidence in confiscation proceedings, whereas the applicant contended that the common law principle of contempt of court precluded such use.

The court found that the statutory provisions did not expressly provide for the use of examination evidence in confiscation proceedings, and thus, the question of whether such use was permitted by necessary implication had to be addressed. The court held that the relevant statutory provisions did not contain any express intention to permit the use of examination evidence in confiscation proceedings, and thus, the issue of whether such an intention arose by implication was crucial. The court determined that the statutory provisions did not imply such an intention, and thus, the use of examination evidence in confiscation proceedings would constitute an interference with the administration of justice.

The court ruled that the decision of the examiner, Mr James Bennett SC, made during the examination of the applicant should be referred back for further consideration in light of the court's reasons for judgment. The applicant was granted liberty to apply for relief if the examiner overrule any objection to specific questions on the ground of legal professional privilege or the risk of interference with the course of justice in the confiscation proceedings. The application was otherwise stood over with liberty to apply generally.

Orders

Orders of the court

1. The decision of the examiner Mr James Bennett SC (“the Examiner”) made by way of a ruling on 4 June 2003 in the course of an examination conducted under Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth), being the ruling referred to on page 232 of the transcript of that examination, be referred to him for further consideration in the light of the accompanying reasons for judgment delivered today.

2. The applicant have liberty to apply on 48 hours notice should the Examiner (or any other examiner in his place) in the conduct of an examination of the type referred to in the accompanying reasons for judgment delivered today overrule any objection taken by the applicant to specific questions on the ground of legal professional privilege or on the ground that to compel such answers might constitute a real or substantial risk of interference with the course of justice in the “Confiscation proceedings” referred to in the accompanying reasons.

3. The application be otherwise stood over with liberty to apply generally.

Background

Background to the litigation

This application involves an assessment of the extent to which Parliament, in this case the Commonwealth Parliament, has made clear whether it intended to suspend certain common law rights or privileges when it conferred statutory powers on the respondent, an agency which has responsibility for, among other things, investigating the financial affairs of organised criminals. PROCEDURAL AND FACTUAL BACKGROUND The factual background of this matter is not in dispute. On 12 July 2002, on the ex parte application of the Director of Public Prosecutions for Western Australia (“the State DPP”), the Supreme Court of Western Australia made an order under s 43(3)(c) of the Criminal Property Confiscation Act 2000 (WA) (“the Confiscation Act”) freezing assets of the applicant and his wife and those of certain named companies. The assets so frozen included bank accounts, interests in cash management trusts, real estate, motor vehicles, shares and other personal property. I shall refer to that order as “the Freezing Order” and the property specified in that order as “the Property”. The grounds of the Freezing Order were stated to be that an application had been made under the Confiscation Act for an order for examination under Division 2 of Part 5 of that Act in relation to the Property and also that an application was likely to be made within 21 days against the applicant in this matter (i.e. Mr Mansfield) for a “criminal benefits declaration” under Division 2 of Part 3 of that Act in relation to the Property. The latter application was duly made. I shall call it “the Confiscation proceedings”. If the State DPP succeeds in the Confiscation proceedings, the applicant becomes liable to pay to the State of Western Australia the assessed value of the criminal benefit – see s 20 of the Confiscation Act. The Supreme Court made directions for the security and management of the Property which included an order authorising the National Crime Authority to take possession of it in certain circumstances. The National Crime Authority was the predecessor of the respondent Australian Crime Commission which now stands statutorily in its shoes. On 7 August 2002 the applicant and his wife filed notices of objection to confiscation of the Property in the Supreme Court of Western Australia, pursuant to s 79 of the Confiscation Act. On 14 August 2002, officers of the respondent charged the applicant with three offences. Those were: defrauding the Commonwealth, conspiracy to defraud the Commonwealth, and money laundering. The charge of defrauding the Commonwealth related to suspected fraudulent use of units in what was described as a “tax effective scheme” known as the “Mondall Almond Project”. The prosecution of those offences was handled by the Commonwealth Director of Prosecutions (“the Commonwealth DPP”). On 14 February 2003 the Commonwealth DPP elected to withdraw those three charges and on or about 12 March 2003 filed an indictment against the applicant in the District Court of Western Australia alleging two counts of fraud upon the Commonwealth. The applicant has entered pleas of guilty to those charges, but has subsequently indicated through counsel that he wishes to withdraw those pleas. The District Court of Western Australia adjourned consideration of that issue until the applicant’s appearance before the Court which was scheduled to take place in August 2003. I have not been informed what, if anything, transpired on that occasion. Those two counts of fraud relate to the Mondall Almond Project.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

The Anshun principles may preclude a party from raising in curial proceedings a point which that party, exercising reasonable diligence, might have brought forward in earlier curial proceedings between the same parties. The respondent is not a party to the Confiscation proceedings. The examination is not an action or proceeding by way of litigation; it is, as Mr Scholz submitted, a coercive investigative inquiry. In my view, there is no substance in the applicant’s submissions based on the principles explained in Anshun. INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE – CONTEMPT OF COURT? As I have mentioned above, the respondent contends that what it describes as the “so-called ‘contempt of court’ doctrine” has been abrogated by the provisions of s 30. Whether it maintains that the abrogation is express or necessarily to be implied is not clear. In oral argument, Mr Scholz submitted that if Parliament had intended to say that evidence given during an examination was not to be admissible in confiscation proceedings which were on foot, because that might be a contempt of court, it could have very easily arrived at a form of words to have said that. When I suggested to Mr Scholz that he was inverting the test, he readily agreed, but referred to the observations of Dawson J in Hamilton v Oades (at 508) to the effect that there was no basis for discerning a difference in intent according to whether or not the relevant proceedings had actually been commenced. In my view, s 30 does not expressly provide that an examiner may compel a person to answer questions notwithstanding that such a course might have the purpose or effect of interfering with the administration of justice. In the absence of any express provision authorising interference with the administration of justice, the question is whether such an intention arises by necessary implication. The respondent relies on s 30(5) as evidencing such an intent. In view of what I think is a peculiarity or anomaly in the drafting of that subsection, it is convenient to reproduce it here. It reads as follows: ‘(5)The answer, or the document or thing, is not admissible in evidence against the person in: (a)a criminal proceeding; or (b)a proceeding for the imposition of a penalty; other than: (c)confiscation proceedings; or (d)a proceeding in respect of: (i)in the case of an answer – the falsity of the answer; or (ii)in the case of the production of a document – the falsity of any statement contained in the document.’ A literal reading of subsection (5) might suggest that it operates as follows. First, it renders the relevant answer document or thing inadmissible in evidence against the relevant person in two types of proceedings, namely, criminal proceedings or proceedings for the imposition of a penalty. Then it cuts back what would otherwise be that degree of inadmissibility (i.e. in criminal proceedings or proceedings for the imposition of a penalty) in respect of two types of proceedings i.e. confiscation proceedings or proceedings in respect of the falsity of an answer or the falsity of any statement contained in a document. But, as the Confiscation proceedings are neither criminal proceedings nor proceedings for the imposition of a penalty, it might be argued that subsection (5) has nothing to say about whether the answer document or thing is admissible in those proceedings.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W134 OF 2003

BETWEEN:	NIGEL CUNNINGHAM SWIFT MANSFIELD Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent
JUDGE:	CARR J
DATE OF ORDER:	3 OCTOBER 2003
WHERE MADE:	PERTH

JUDGE:	CARR J
DATE:	3 OCTOBER 2003
PLACE:	PERTH