OK v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

OK v Australian Crime Commission [2009] FCA 1038

ADMINISTRATIVE LAW – summons issued under Australian Crime Commission Act 2002 (Cth) (the ACC Act) – applicant attended for examination – examiner asked questions directly relevant to charges laid against applicant in State court – whether examiner can require applicant to answer questions that directly relate to subject matter of charges – whether would involve a real risk of interference with the administration of justice – whether the ACC Act, by necessary implication, has provided that there should be no constraint on the examiner’s questions

Australian Crime Commission Act 2002 (Cth), ss 4, 7, 7A, 7B, 7C, 12, 24A, 25A(9), 25A(12), 25A(15), 28(1), 30, 46A(2), 46B, 50, 51
Judiciary Act 1903 (Cth) s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

A v Boulton (2004) 136 FCR 420 discussed
A v Boulton (2004) 204 ALR 598 discussed
ABC v Sage [2009] FCA 170 discussed
Barnes v Boulton (2004) 139 FCR 356 cited
CC v Australian Crime Commission [2005] FCA 754 cited
Commissioner of Taxation v De Vonk (1995) 61 FCR 564 discussed
Hak Song Ra v Australian Crime Commission (2004) 138 FCR 51 discussed
Hamilton v Oades (1989) 166 CLR 486 discussed
Hammond v Commonwealth (1982) 152 CLR 188 discussed
Huston v Costigan (1982) 45 ALR 559 cited
Loprete v Australian Crime Commission [2004] FCA 1476 cited
Mansfield v Australian Crime Commission (2003) 132 FCR 251 discussed
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 cited
Sorby v Commonwealth (1983) 152 CLR 281 cited
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (No 2) (1982) 152 CLR 179 cited
X v Australian Crime Commission (2004) 139 FCR 413 cited

OK v AUSTRALIAN CRIME COMMISSION

SAD 88 of 2009

MANSFIELD J
16 SEPTEMBER 2009
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 88 of 2009
BETWEEN:

OK
Applicant
AND:

AUSTRALIAN CRIME COMMISSION
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

16 SEPTEMBER 2009

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The Australian Crime Commission by its examiner be restrained in relation to the examination from time to time of the applicant pursuant to an examination summons issued under s 28 of the Australian Crime Commission Act 2002 (Cth) on 5 May 2009 from asking questions which by such questions directly relate only to matters the subject of the charge laid against the applicant on 13 May 2009 in respect of certain conduct alleged to have occurred on 27 April 2009, contrary to s 33(3) of the Controlled Substances Act 1984 (SA), or from requiring the applicant to answer questions to the extent that such answers disclose information directly relating to that charge, such injunction to remain in force until the said charge against the applicant has been finally determined by plea or verdict or by it being withdrawn or dismissed.

2.The respondent pay to the applicant his costs of the application.

Note:Settlement and entry of…

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Details
Case
[2009] FCA 1038
Decision Date

CaseChat Overview and Summary

In the case of OK v Australian Crime Commission, the primary issue was whether the Australian Crime Commission (ACC) examiner could ask questions that directly related to the matters of a pending criminal charge against the applicant. The ACC argued that the Australian Crime Commission Act 2002 (ACC Act) impliedly allowed such questioning despite the charge, and that in the specific circumstances, there was no real risk that the questions would interfere with the administration of justice. The applicant, on the other hand, contended that the ACC Act did not override the fundamental principle that an accused person should not be examined by an executive body on matters directly related to a pending criminal charge unless explicitly allowed by legislation.

The court examined the provisions of the ACC Act, including sections 24A and 25A, which allow an examiner to conduct examinations and summon individuals to appear and give evidence. The court also considered the implications of section 30 of the ACC Act, which abrogates the privilege against self-incrimination by necessary implication. The court referenced previous cases such as Hammond v Commonwealth and Sorby v Commonwealth to understand the legal precedent regarding the right of an accused not to be examined on matters directly related to a pending charge by an executive arm of government. The court found that while the ACC Act did abrogate the privilege against self-incrimination, it did not necessarily imply a waiver of the right not to be questioned on matters directly related to a pending charge.

The court concluded that unless the ACC Act explicitly or by necessary implication provided to the contrary, the examiner was not entitled to ask questions that directly related to matters the subject of the charge, particularly where there was a real risk that such questioning could interfere with the administration of justice. Given the specific circumstances, the court found that there was a real risk that the questioning could prejudice the applicant’s opportunity for a fair trial. Therefore, the court issued an injunction restraining the ACC examiner from asking questions directly relating to the matters of the charge until the charge was finally determined. Additionally, the court ordered the respondent to pay the applicant's costs of the application.

Orders

Orders of the court

1. The Australian Crime Commission by its examiner be restrained in relation to the examination from time to time of the applicant pursuant to an examination summons issued under s 28 of the Australian Crime Commission Act 2002 (Cth) on 5 May 2009 from asking questions which by such questions directly relate only to matters the subject of the charge laid against the applicant on 13 May 2009 in respect of certain conduct alleged to have occurred on 27 April 2009, contrary to s 33(3) of the Controlled Substances Act 1984 (SA), or from requiring the applicant to answer questions to the extent that such answers disclose information directly relating to that charge, such injunction to remain in force until the said charge against the applicant has been finally determined by plea or verdict or by it being withdrawn or dismissed.

2. The respondent pay to the applicant his costs of the application.

Note:

Background

Background to the litigation

The ACC does not dispute the principle that, unless the ACC Act by necessary implication has provided to the contrary, once the charge was laid, the examiner was not entitled to ask questions which directly related to matters the subject of the charge provided there is a real risk that the questioning may interfere with the administration of justice. However, the ACC contends that: (1)the ACC Act, by necessary implication, has provided that there should be no such constraint on the examiner’s questions, notwithstanding the charge; and(2)in any event, in the particular circumstances, there is no real risk that the questions of the applicant, or his answers, on matters directly relating to the subject of the charge will interfere with the administration of justice by impairing his opportunity for a fair trial.THE LEGISLATIVE BACKGROUND The ACC was established under s 7 of the ACC Act. Its functions are set out in s 7A of the ACC Act, and include to investigate, when authorised by the ACC Board, matters relating to federally relevant criminal activity. “Federally relevant criminal activity” is defined in s 4 of the ACC Act as follows:federally relevant criminal activity means:(a)a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory; or(b) a relevant criminal activity, where the serious and organised crime:(i) is an offence against a law of a State; and(ii) has a federal aspect. “Relevant criminal activity” is also defined in s 4 as follows:relevant criminal activity means any circumstances implying, or any allegations, that a serious and organised crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory. Section 24A of the ACC Act provides that an examiner may conduct an examination for the purposes of a special ACC operation or investigation. Section 28 of the ACC Act provides that an examiner may summon a person to appear before the examiner at an examination to give evidence and produce documents or things referred to in a summons. The conduct of such an examination is governed by s 25A of the ACC Act. Section 25A(9) provides:(9)An examiner may direct that:(a) any evidence given before the examiner; or(b)the contents of any document, or a description of any thing, produced to the examiner; or(c)any information that might enable a person who has given evidence before the examiner to be identified; or(d)the fact that any person has given or may be about to give evidence at an examination;must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. Section 25A(12) provides:(12) If:(a)a person has been charged with an offence before a federal court or before a court of a State or Territory; and(b)the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Simply for the sake of completeness, it should also be noted that the circumstances in which the Minister must decide whether to disclose information under s 59(6C) also do not qualify the obligation of the CEO under s 12(1).CONSIDERATION It is plain that s 30 of the ACC Act abrogates the privilege against self-incrimination by necessary implication. There are several decisions of this Court which support that proposition, referred to in [18] above. Section 30(2)(b), when read in combination with ss 30(4) and (5), is a clear indication of the parliamentary intent to abrogate the privilege against self-incrimination. Section 30(5) provides for a “use immunity”, whereby a person being examined may, before answering a question or producing a document or thing, claim that the answer or production of such document or thing might tend to incriminate that person, in the circumstances of s 30(4), and then the answer (or document or thing) is not admissible in evidence against that person in a criminal proceeding (other than in the circumstances set out in s 30(5)). Counsel for the applicant relied upon the right of the applicant, as an accused person, not to be examined by an executive arm of government on matters directly related to a pending criminal charge, at least unless that power to be so examined is clearly granted by legislation. For the purposes of this application, I do not know if it is necessary to accept that proposition in such expansive terms. In Hammond v Commonwealth (1982) 152 CLR 188 (Hammond), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth (1983) 152 CLR 281. In Hammond, Gibbs CJ at 198 said:Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. … [T]he fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.See also per Murphy J at 201. Both their Honours expressed their conclusion as following from the fact that the answers may tend to prejudice an accused in the defence of the criminal charge. Brennan J reached the same conclusion, but on a somewhat wider basis. His Honour said at 202-3:It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.