QAAB v Australian Crime Commission - [2014] FCA 747

FEDERAL COURT OF AUSTRALIA
QAAB v Australian Crime Commission [2014] FCA 747

Citation: QAAB v Australian Crime Commission [2014] FCA 747

Parties: QAAB v AUSTRALIAN CRIME COMMISSION and ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

File number: QUD 260 of 2014

Judge: LOGAN J

Date of judgment: 16 July 2014

Catchwords: CRIMINAL LAW – crime and corruption commissions – examination of person – where person not yet charged with offence – where, objectively, person might be suspected of the commission of an offence – right to silence – whether right extends to pre-charging investigations and inquiries – whether right abrogated by statue – accusatorial system of justice – statutory interpretation – Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7, 7A, 25A, 28, 29A, 30

Legislation: Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7, 7C, 25A, 28
Judiciary Act 1903 (Cth)
Criminal Code (Cth) Pt 9.1
Drugs Misuse Act 1986 (Qld) s 8
Police Powers and Responsibilities Act 2000 (Qld)
Criminal Assets Recovery Act 1990 (NSW)
New South Wales Crime Commission Act 1985 (NSW) s 13

Cases cited: A v Bolton (2004) 136 FCR 420 cited
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 followed
Lake v Quinton [1973] 1 NSWLR 111 considered
Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 considered
Lee v R (2014) 88 ALJR 656 considered
Woolmington v Director of Public Prosecutions [1935] AC 462 cited
X7 v Australian Crime Commission (2013) 248 CLR 92 followed

Date of hearing: 11 July 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 42

Counsel for the Applicant: Mr A Hoare

Solicitor for the Applicant: Legal Aid Queensland

Counsel for the Respondents: Ms S Maharaj QC

Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 260 of 2014

BETWEEN:
QAAB
Applicant

AND:
AUSTRALIAN CRIME COMMISSION
First Respondent

ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Second Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

16 JULY 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the respondents’ costs of and incidental to the application, to be taxed if not agreed.
3.In the taxation of those costs, no allowance is to be made by the registrar for expenses of or incidental to travel and accommodation in respect of the respondents’ counsel.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 260 of 2014

BETWEEN:
QAAB
Applicant

AND:
AUSTRALIAN CRIME COMMISSION
First Respondent

ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Second Respondent

JUDGE:

LOGAN J

DATE:

16…

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: [2014] FCA 747
Decision Date

CaseChat Overview and Summary

The applicant, identified as "QAAB," sought to challenge an examination summons issued by the Australian Crime Commission (ACC) under the Australian Crime Commission Act 2002 (Cth). The summons required the applicant to provide evidence concerning the possession of a chemical that may be a precursor to a dangerous drug. The applicant argued that the ACC Act does not permit the compulsory examination of an individual not yet charged with an offence, invoking the common law right to silence. The legal issues before the court were whether the ACC Act authorises the compulsory examination of an individual not yet charged with an offence and whether the right to silence extends to pre-charging investigations. The court found that the ACC Act does permit the examination of individuals suspected of wrongdoing who have not been charged with an offence, and that Parliament has abridged the common law right to silence to this extent. The court also found that the ACC's proposed measures to protect the applicant's fair trial, should he be charged, were sufficient to allow the examination to proceed. Consequently, the application was dismissed, and the applicant was ordered to pay the respondents' costs.

Orders