R v Wallace [No 2]
[2013] WADC 17
•7 FEBRUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: R -v- WALLACE [No 2] [2013] WADC 17
CORAM: MCCANN DCJ
HEARD: 23 JANUARY 2013
DELIVERED : 7 FEBRUARY 2013
FILE NO/S: IND 369 of 2011
BETWEEN: THE QUEEN
AND
STEPHEN JOHN WALLACE
FILE NO/S :IND 385 of 2011
BETWEEN :THE QUEEN
AND
ANDREW REGINALD FAGAN
FILE NO/S :IND 386 of 2011
BETWEEN :THE QUEEN
AND
DAVID FRANK MARRAPODI
Catchwords:
Criminal law - Charges of refusing to answer questions during an examination of Australian Crime Commission - Validity of summons to appear is an element of the charge - Summonses held to be valid - Relevance of questions - Whether accuseds were compellable to answer - Turns on own facts
Legislation:
Australian Crime Commission Act 2002 s 7B, s 7C(3), s 25A(6), s 28(1A)(3), s 29B, s 30(2)(a) and s 30(2)(b)
Result:
Evidence ruled admissible
Applications dismissed
Representation:
IND 369 of 2011
Counsel:
Crown: Ms R Fogliani
Accused: Mr L M Levy SC
Australian Crime Commission: Mr P R MacLiver
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
Accused: Alana Padmanabham
Australian Crime Commission: Australian Government Solicitor
IND 385 of 2011
Counsel:
Crown: Ms R Fogliani
Accused: Ms A Rogers
Australian Crime Commission: Mr P R MacLiver
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
Accused: Abigail Rogers
Australian Crime Commission: Australian Government Solicitor
IND 386 of 2011
Counsel:
Crown: Ms R Fogliani
Accused: Mr L M Levy SC
Australian Crime Commission: Mr P R MacLiver
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
Accused: Alana Padmanabham
Australian Crime Commission: Australian Government Solicitor
Case(s) referred to in judgment(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
Minister of Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v LB [2010] NTSC 15
R v LB [2011] NTCCA 4; 163 NTR 1
R v Wallace [2011] WADC 138
MCCANN DCJ:
Introduction
Each accused is charged on indictment on a number of counts which allege that, being a person who was appearing as a witness at an examination of the Australian Crime Commission (ACC), he refused to answer a question as directed by the presiding examiner, contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth) (the Act).
A hearing took place before me on 23 January 2013 pursuant to s 98 of the Criminal Procedure Act 2006 for the determination of applications made on behalf of each accused for (as amended) rulings and orders that:
1.The summons compelling each accused's attendance before the examiner was invalid.
2.As a consequence of such invalidity, all evidence given by each accused at his examination (including his refusal to answer the examiner's questions) is inadmissible in these proceedings.
3.Further or alternatively, the evidence given by the accused at the examination (including his refusal to answer the examiner's questions) is inadmissible on the ground that the questions were not relevant to the special ACC operation or investigation which was the purpose of the examination and, as such, the accused was not compellable to answer them.
4.Judgment of acquittal be entered on all counts on the ground that the accused has no case to answer.
5.Alternatively, the proceedings against each accused be permanently stayed on the ground that they are an abuse of process.
The history of these proceedings to date
Each of the accused was charged on or about 4 February 2010. The charges were committed to the District Court for trial on 21 January 2011.
The accuseds dispute the validity of their summonses to appear in the ACC. They each caused a summons to be served upon the ACC seeking the production of the brief that was provided to the examiner who issued his summons to appear and the written reasons that were given by the examiner for doing so.
The ACC produced these documents, but in a heavily redacted form. They objected to providing the redacted portions on the grounds of public interest immunity or legal professional privilege.
On 1 September 2011 Staude DCJ ruled (R v Wallace [2011] WADC 138) that the accuseds had a legitimate forensic interest in the documents but allowed the ACC's objections (redactions) in part.
An appeal to the Court of Appeal was dismissed by majority on 9 May 2012: Australian Crime Commission v Marrapodi [2012] WASCA 103 (McLure P and Allanson J, Martin CJ dissenting). An application for special leave to appeal to the High Court of Australia was dismissed on 16 November 2012.
The ACC then provided the summonsed documents in a redacted form consistent with the orders of Staude DCJ, that is to say, with less redactions. The accuseds were thus in possession of all of the admissible documentary evidence which they had sought and brought the applications which are now before me.
Legislative framework
The legislative framework is most helpfully set out in the judgment of Allanson J in ACC v Marrapodi ([60] – [75]):
The Australian Crime Commission Act
The ACC is established by s 7 of the Australian Crime Commission Act. It consists of the CEO, the examiners appointed under s 46B, and the members of the staff of the ACC.
The functions of the ACC (set out in s 7A) include investigating, when authorised by the Board of the ACC, matters relating to federally relevant criminal activity.
Section 7B establishes the Board of the ACC. Its functions under s 7C include:
(c)to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;
(d)to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;
The Board may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so it must consider whether ordinary methods of police investigation into the matters are likely to be effective: s 7C(3).
Part II, div 2 of the Act is headed 'Examinations'. Under s 24A, an examiner may conduct an examination for the purposes of a special ACC operation or investigation. Section 25A concerns the conduct of examinations:
1.An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit: s 25A(1);
2.A person giving evidence may be represented by a legal practitioner: s 25A(2);
3.Examinations must be held in private: s 25A(3);
4.A witness may be examined and cross-examined 'on any matter that the examiner considers relevant to the ACC operation/investigation': s 25A(6);
5.The examiner may direct that certain matters must not be published. These include evidence, information that may enable a person who has given evidence to be identified, and the fact that a person has given or may be about to give evidence before an examination: s 25A(9);
6.At the conclusion of an examination, the examiner must give a record of the proceedings of the examination and any documents or things given to the examiner at or in connection with the examination, to the head of the special ACC operation/investigation: s 25A(15).
A witness appearing before an examiner is entitled to paid in respect of the expenses of his or her attendance (s 26); and a witness who is appearing or about to appear before an examiner may apply to the Attorney General for the provision of legal and financial assistance (s 27).
Section 28 deals with the power to summons a witness and take evidence, and s 30 with the failure of a witness to attend and answer questions. Before considering those sections in more detail, it is convenient to identify other provisions relating to witnesses before an examiner.
A person shall not, at an examination before an examiner, give false or misleading evidence: s 33. The examiner may make arrangements to avoid prejudice to the safety or any person who is to appear, is appearing or has appeared at an examination to give evidence or to produce a document or thing, or to protect such a person from intimidation or harassment: s 34.
A person is in contempt of the ACC if he or she, when appearing as a witness at an examination before an examiner:
1.refuses or fails to take an oath or affirmation when required to do so under s 28; or
2.refuses or fails to answer a question that he or she is required to answer by the examiner: s 34A.
Under s 36(3) a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the High Court. Although the provision refers both to a person summoned and a person appearing, I doubt that anything can be read into the distinction. It may reflect nothing more than that the law protects a person who is to be a witness, as well as providing immunity and protection for a person in relation to their testimony.
I return to s 28. At the time of the issue of the s 28 summonses to the respondents it provided:
(1)An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.
(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:
(a)before the issue of the summons; or
(b)at the same time as the issue of the summons; or
(c)as soon as practicable after the issue of the summons.
(2)A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the Determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.
(3)A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
(4)The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.
(5)An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:
(a)the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and
(b)the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.
(6)In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.
(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.
(8)A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:
(a)subsection (1A) of this section, in so far as that subsection relates to the making of a record;
(b)subsection (2) of this section;
(c)section 29A, in so far as that section relates to a summons under subsection (1) of this section.
In 2010, by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (No 4 of 2010), s 28 was amended to the form it is in now: par (c) of s 28(1A) has been repealed, and subsection (8) now reads:
A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.
Section 29 provides a similar power for the examiner, by notice in writing, to require a person to attend and produce specified documents or things. The requirements for the issue of a s 28 summons and a s 29 notice are the same.
Section 30 provides:
(1)A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
(a)fail to attend as required by the summons; or
(b)fail to attend from day to day unless excused, or released from further attendance, by the examiner.
(2)A person appearing as a witness at an examination before an examiner shall not:
(a)when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;
(b)refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c)refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
(3)Where:
(a)a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and
(b)the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;
the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
(4)Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a)a person appearing as a witness at an examination before an examiner:
(i)answers a question that he or she is required to answer by the examiner; or
(ii)produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(b)in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and
(c)before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(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.
(6)A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.
(7)Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(8)Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.
(9)Subsection (3) does not affect the law relating to legal professional privilege.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) applies, with modification, to matters arising under the Act: Australian Crime Commission Act s 57. The modification imposes a significant restriction: an application for review must be lodged within the period of five days after the day on which the applicant becomes aware of the matter. The court may allow further time in special circumstances.
Decisions under s 28 of the Australian Crime Commission Act may also be reviewed by way of the constitutional writs under the Judiciary Act 1903 (Cth): see, for example, GG v The Australian Crime Commission [2010] FCAFC 15; (2010) 182 FCR 513.
The current applications
The validity of the accuseds' summonses to appear
It is common ground that the admissibility of the evidence of the examination of each accused in the ACC is conditional upon the validity of the summons which compelled him to appear. But the parties are not in agreement as to the legal basis for that proposition.
The accuseds submit that the service of a valid summons is an element of the offence of contravening s 30(2)(b) of the Act. The Crown contends that the validity of the summons is merely relevant to whether the examiner had the power to require the accuseds to be sworn and to require them to answer questions.
The accuseds' contention is based on R v LB [2011] NTCCA 4; 163 NTR 1 (upholding R v LB [2010] NTSC 15) in which the Court of Criminal Appeal of the Northern Territory held that the service of a valid summons is an element of the offence of contravening s 30(2)(a). Put shortly, the court held that the phrase 'appearing as a witness' in the preamble to s 30(2) was apt to describe a person who had received a valid summons to appear so that, in effect, proof of the element that a person was appearing in an ACC examination necessitated proof of him having been validly summonsed to do so.
In ACC v Marrapodi the issue was whether the accuseds had a legitimate forensic interest in the summonsed documents. McLure P (obiter, at [38] – [40]) queried the correctness of LB, saying that it is arguable that the validity of a summons is not an element of the contravention of either paragraph of s 30(2), but rather a condition of the power of an examiner to require the relevant witness to answer a question. However, because she was not satisfied that LB was plainly wrong, and because the construction issue did not materially affect the outcome of the appeal, her Honour declined to depart from that case.
Allanson J held (at [117]) that LB was not wrongly decided and was persuasive authority. However, his Honour confined his ultimate decision to ruling that 'the validity of the summons is relevant to whether [the accuseds] were required to answer questions' and, as such, held (at [118]) that they had a legitimate forensic interest in documents relating to that issue.
Ms Fogliani relied upon the obiter dicta of McLure P and Allanson J and submitted that the validity of the accuseds' summonses to appear was merely relevant to their compellability to answer questions. I cannot accept this submission, since neither of their Honours was prepared to over-rule LB (albeit for different reasons) and I am bound to give effect to both authorities.
Accordingly, I accept the accuseds' contention that the validity of their summonses to appear is intrinsic to the proof of the element that each was 'a person appearing as a witness at an examination' and, as such, it must be proved by the Crown. It follows that the onus of proof in the voir dire lies on the Crown.
The validity of the summons to appear in each case is a question of law which must be determined by the trial judge (see ACC v Marrapodi [47] McLure J). The standard of proof is on the balance of probabilities, but for the avoidance of doubt I shall apply the criminal standard of beyond reasonable doubt.
The following conditions must be satisfied (see LB per Southwood J at first instance at [53] – [56]):
1.By necessary implication in s 28(1A), the examiner must be satisfied that there are bona fide, rational reasons for the issue of a summons to the proposed witness in respect of a special ACC investigation mandated by a Determination made pursuant to s 7B and s 7C. The existence of such a Determination, and hence a special investigation, will necessarily predicate that the Board of the ACC was satisfied that ordinary methods of police investigation into the matters referred to in the Determination were unlikely to be effective (s 7C(3)).
2.The examiner must be satisfied that it is reasonable in all the circumstances to issue the summons.
3.The examiner must record in writing the reasons for doing so.
The accuseds put the Crown to proof on each of these pre-conditions, although their primary focus lies on the first and second, since the Act provides that the failure of an examiner to make a record of the reasons does not necessarily invalidate a summons: s 28(8).
The issue in respect of the first and second conditions is not whether the examiner was right, but rather whether the examiner subjectively acquired the satisfaction required by the conditions. That question can be approached in terms of whether the examiner could have attained the satisfaction reasonably in accordance with the law, but a court may not on review simply substitute its own opinion: Minister of Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507, [73] Gleeson CJ and Gummow J and LB (on appeal) at [29] – [30]. The accuseds submit that it is no answer to this question to merely say that reasons were given. I accept that submission.
I turn now to consider the facts and evidence relating to this matter.
As a matter of ACC routine, examiners issued the summonses for the examinations which they were scheduled to conduct. Examiner J P Anderson conducted all three examinations in this case, but he only issued Mr Fagan's and Mr Marrapodi's summonses (on 23 September 2009 and 19 October 2009 respectively). For reasons which were not explained to me, Mr Wallace's summons was issued by examiner W M Boulton (on 28 September 2009).
Mr Anderson and Mr Boulton testified in the voir dire. They have extensive experience in the role of examiner and Mr Anderson was a judge of the District Court of South Australia before his appointment. For reasons given below, I have accepted their evidence except where indicated otherwise.
Each summons to appear in this matter was expressed to relate to a special investigation mandated by a Determination of the Board of the ACC made on 30 April 2009 (the Determination) and entitled the 'Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups [HRCG's] No 2 2009)'.
Pursuant to the Determination, the ACC appointed a team to carry out a special investigation (code-named 'Operation Develop') for the purpose, inter alia, of investigating the activities of an alleged HRCG, comprising the Finks Motor Cycle Club and certain persons who were allegedly involved with the Club. These matters were outlined in the brief to the examiner in each case in this matter. The briefs named certain persons of interest including, where relevant, Mr Francesco (Frank) Condo and Mr Troy Desmond Mercanti.
The Operation Develop team comprised a 'Head of Determination' and various staff, including at least one lawyer. From time to time the Head of Determination resolved to conduct examinations under the auspices of an examiner (Mr Anderson) who was assisted by legal counsel attached to Operation Develop.
The ACC had a procedure for obtaining a summons to appear. The investigation team submitted an electronic brief to the relevant examiner comprising the draft summons (together with annexures), a statement of facts and circumstances in support of the issue of the summons, legal submissions as to why it was reasonable to issue the summons and a template of the examiner's reasons for issuing the summons.
Having considered the brief, and if minded to do so, the examiner then completed and signed the template of the reasons and signed the summons (electronically and in that order). For that purpose it was possible for the examiner to cut and paste material from the brief into the template of the reasons. All of the material (ie, the original brief plus the signed summons and reasons) was then electronically returned to the investigation team for action. (It is nowadays sent to a dedicated Registry.) The examiner conducted the examination on the appointed date if the summons was served on the witness and he attended.
It is apparent from the evidence that the purpose of providing the electronic brief in this way was to facilitate the expeditious discharge of the examiner's functions and to minimise the clerical aspects from his point of view. Having regard to the very large number of requests for summonses which came before the examiners, one can readily understand why this system was adopted.
Mr Anderson and Mr Boulton both testified that they were requested to issue hundreds of summonses and rarely declined to do so. Mr Anderson only refused twice and Mr Boulton did so on no more than about two dozen occasions. Nevertheless, they both testified that they always followed the same procedure. They read the brief in full and considered the relevance of the proposed examination to the objectives of the special investigation, as mandated by the relevant Determination, and whether it was reasonable in the circumstances for the proposed witness to be summonsed to appear for examination. In other words, they always carried out a merits‑based assessment of the application based on the brief and satisfied themselves that the statutory requirements were met before completing the template of reasons and issuing the summons.
The following documents were received in evidence in respect of each accused:
•The summons to appear with annexures, namely a copy of the Determination (Annexure A), a statement of rights and obligations of the witness under s 29B and some explanatory notes.
•The statement of facts and circumstances prepared by the ACC in support of the issue of the summons.
•The ACC's legal submissions in support of the application.
•The examiner's reasons for issuing the summons.
•The transcript of the accused's examination.
Mr Anderson testified that he could not recall issuing the summonses to Messrs Fagan and Marrapodi, but based on his invariable practice he was certain that he followed the above-mentioned process. Mr Boulton testified that he could actually remember doing so in respect of Mr Wallace's summons. In doing so they both had regard to the redacted material which is not in evidence in the voir dire. (For completeness, I should state that I read the redacted material in preparation for the hearing, but I have not found it necessary to have regard to any of it for the purposes of this decision.)
The accuseds contend (the defence hypothesis) that circumstantial evidence supports findings that all of the examiners' work (including writing the reasons) was done for them by the investigation team and included in the brief, and all Mr Anderson and Mr Boulton had to do was affix the date, the time and their signatures. They contend that the process in each case was a 'tick a box exercise' (Mr Levy SC's phrase) which amounted to no more than an unconsidered and formulaic processing of the application. Mr Levy SC and Ms Rogers submit that I can not be satisfied that the examiners subjectively formed the necessary opinions.
I stress that none of the accuseds challenge the personal bona fides of Mr Anderson and Mr Boulton, there being no evidence whatsoever to support any such challenge. There can be no doubt that they acted in good faith at all times and testified honestly. Having said that, I feel that to some extent Mr Boulton's subjective recall of the relevant circumstances must to some extent have been refreshed by seeing the documentary evidence and, to that extent, partly involved a degree of honest reconstruction.
Given that Mr Anderson cannot actually remember issuing Mr Fagan's and Mr Marrapodi's summonses, and because I also have some reservations about the clarity of Mr Boulton's recall of doing so in Mr Wallace's case, I propose to treat the Crown's case in each matter as circumstantial to a significant extent.
It is relevant to examine the provenance of the examiners' reasons (exhibits 4, 9 and 13 in respect of Messrs Fagan, Marrapodi and Wallace respectively). Mr Anderson and Mr Boulton both testified that he personally inserted the purpose of summoning the relevant accused into par 5 of the template. In each case the relevant passage begins as follows:
A direct purpose in examining this witness is to ascertain information regarding the criminal activities related to Francesco Condo and the Finks HRCG ….
I am satisfied that this passage was in the template in each case because it is the same in all three sets of reasons and Mr Anderson accepted that proposition (ts 131). However, I am satisfied that the balance of the passage which followed, which contained each examiner's substantive reasons, was cut and pasted by him from the brief. Mr Anderson described this in Mr Fagan's instance as 'the gist of what was in the statement of facts and circumstances about Fagan's connection with Condo and the Finks Motor Cycle Club' (ts 112 ‑ 113).
In the interests of the accuseds it is not necessary to set out the substantive reasons verbatim in these reasons. I am satisfied that it was quite different in each case, quite specific to the individual witness (accused) and referred to specific matters relating to his perceived connection with the Finks Motor Cycle Club and the named targets of Operation Develop. Having regard to the terms of reference established by the Determination and the nature of Operation Develop itself as set out in the brief, there can be no doubt that the reason was relevant in each case and justified the issue of the summons.
A finding that the substance was cut and pasted from the brief in each case by the issuing examiner is supported by some formatting problems with pars 5 and 6 of Mr Anderson's reasons (exhibits 4 and 9), which were given 26 days apart, which are absent from those of Mr Boulton (exhibit 13). (See Mr Anderson's evidence at ts 131 - 132).
Mr Anderson also testified that he cut and pasted the 'Purpose of the Summons' section of his reasons from the draft summons (ts 110). He believed this was so because there is a reference to Annexure A (the Determination) in the relevant part of the draft summons and in the reasons where it is otiose (the reasons had no annexures). As I understand his thinking, he feels that a mistake of that kind could not have been made in the template and must be laid at his door. In my view Mr Anderson was wrong about this since the same mistake appears in Mr Boulton's reasons and it is unlikely that he made it as well. I find that the mistake was in the template in each case and neither Mr Anderson or Mr Boulton dealt with this part of the template.
Overall, I am satisfied that Mr Anderson and Mr Boulton personally cut and paste the passage which comprises the substantive component of the reasons from the brief (probably from the statement of facts and circumstances). This fact, in turn, supports findings that they each considered the brief, formed a view on the merits and applied their mind to the reasons. I note, however, that their failure to deal with the mistake referred to at [40] above says something as to their attention to detail and thus overall concentration when doing so.
The fact that the substantive component of the reasons was plagiarised does not preclude the above findings. Indeed, such findings would not necessarily be precluded even if the template itself contained the substantive component, leaving the examiner to merely sign and affix the date and time, since in that instance the examiner would still be free to form his own opinion of the application and refuse it or allow it, or adopt or change the template, as he saw fit. The purpose of the brief, which was comprehensive and well‑prepared, was to assist the examiner and it is understandable that his reasons would reflect what was put to him. I would be more concerned if the brief contained a paucity of material to support the issue of the summons and the same was reflected in the reasons.
I am not dissuaded by the relative brevity of the substantive component of the reasons, which in each case consisted of about four lines. There is no requirement for the reasons to be lengthy. They only need to adequately reflect the reasoning process so as to promote intellectual rigour by the examiner and accountability by judicial review or otherwise.
It is relevant that the brief included comprehensive legal submissions which addressed the facts and law. Whilst parts of the submissions in each case (exhibits 3, 8 and 12) have been redacted, it is apparent that they sought to relate the reasonableness of the proposed examination of each accused to specific aspects of the terms of reference set out in the Determination. The submissions also touched on the unlikelihood of the information which was sought being obtained from other sources or by other means.
I am mindful that each examiner issued an enormous number of summonses during their tenure and rejected very few which, in turn, might support an inference that they sometimes issued summonses as a matter of routine and uncritically. However, I am satisfied that each of them was mindful of the significance of compelling a witness to undergo examination by the ACC and, as such, they always followed the process and never entered into it lightly. In that respect, Mr Anderson was to be the examiner in all three cases and, as such, he had an interest in the subject matter and a practical interest in only summoning people for examination who would have something relevant to contribute to the investigation. (He was also cost-conscious about such matters: ts 141.) This consideration only partly applied to Mr Boulton. But, as he said, his involvement in Mr Wallace's case was a departure from the norm and I am satisfied that this circumstance alone must, as a matter of commonsense, have engaged his interest.
Drawing these matters together, that is to say, having regard to all of the evidence, I am satisfied beyond reasonable doubt (and, ipso facto, on the balance of probabilities) that in each case the examiner fully read the brief that was provided to him and subjectively directed his mind to the pre-conditions for the issue of the summons, namely the relevance of the proposed examination to the Determination and the special investigation and the reasonableness of requiring each accused to be examined. I am further satisfied that each examiner formed his own independent view on those matters and completed and signed the reasons for issuing a summons before doing so. In other words, I reject the defence hypothesis.
I am therefore satisfied that the summons was validly issued in each case.
The compellability of each accused to answer each question
Mr Fagan is charged with four counts of refusing to answer four questions as directed by Mr Anderson during an examination on 5 October 2009. Mr Wallace and Mr Marrapodi face five counts of refusing to answer questions as directed by Mr Anderson during examinations on 7 and 28 October 2009 respectively.
The questions in Mr Fagan's case were as follows:
(i)Mr Fagan, are you married to [a named person]?
(ii)What is the current whereabouts of your, of [the named person]?
(iii)Mr Fagan, are you a nominee of the Fink Perth Chapter?
(iv)Do you know a person by the name of Frank Condo?
The questions in Mr Wallace's case were as follows:
(i)Are you a member of the Finks, Mr Wallace?
(ii)Are you an associate member of the Finks?
(iii)Were you patched on the 13th July 2009 Finks?
(iv)Do you know Frank Condo?
(v)Do you know Troy Desmond Mercanti?
The questions in Mr Marrapodi's case were as follows:
(i)Mr Marrapodi, are you a nominee of the Finks?
(ii)Mr Marrapodi, is there a meeting of the Perth Finks Chapter, oh sorry, the Fink Perth Chapter tonight?
(iii)Have you been advised, Mr Marrapodi, that you will be patched at that meeting tonight?
(iv)Do you know a person by the name of Frank Condo?
(v)Is Troy Mercanti a nominee of the Finks?
The accuseds contend that none of these questions were necessary or relevant to Operation Develop save for questions (ii) and (iii) (ie, counts 2 and 3) in Mr Marrapodi's case. As such, they contend that they were not compellable to answer them and did not contravene s 30(2)(b) of the Act by refusing to do so.
There is no dispute that a witness is not compellable to answer a question unless it is relevant to, or related to, a special investigation. As Allanson J said in Marrapodi (at [102]):
… [T]he Act contemplates an examination only where extraordinary compulsory powers are called for.
Mr Levy SC and Ms Rogers submit that the relevance of a question must be determined at the time the question is asked having regard to the need or justification for it in the light of the ACC's existing intelligence holdings. They submit that this is so because the ACC's powers and the scope of the offences created by the Act must be construed in the light of the purpose of the Act, namely to facilitate the acquisition of criminal intelligence which is not, or would not be, available by ordinary methods of police investigation.
Against this background, they submit that the challenged questions sought information which was already within the ACC's possession, as predicated by the questions themselves and disclosed by the brief, or which was available to the ACC from other ordinary sources. For instance, Ms Rogers submitted that the ACC already knew the identity of Mr Fagan's wife and could verify the fact through publicly available records. Mr Anderson accepted this possibility (ts 136). He and Mr Boulton readily accepted that questions were frequently based on existing intelligence.
In my opinion there is some force in Mr Levy SC and Ms Rogers' submission. It is arguable that the phrases 'relevant to the ACC operation/investigation' in s 25A(6) and 'relates to a special ACC operation/investigation' in s 28(3), and the phrase 'a question that he or she is required to answer' by the examiner in s 30(2)(b) should be construed as if relevance is to be tested in terms of whether the information which the examination and the question seek to elicit will materially advance the work of the special investigation. On that basis pro forma or introductory questions about which the ACC already has intelligence (or could ascertain by ordinary means) would not be compellable.
However, in my opinion the submission should be rejected for the following reasons.
In my opinion the scheme of the Act, and the respective roles of the Board and the ACC (including examiners), contemplate that the latter body need not always concern itself with the special need aspect, that is to say, whether ordinary methods of investigation are unlikely to be effective. That issue is a matter for the Board: s 7C(3). It may also become relevant when considering whether to summons a witness (it might not be reasonable to do so) or during the examination, but any stricter test would greatly impinge upon the efficacy of the ACC as an inquisitorial body. It would require an assessment to be continuously made as to whether a question was compellable, that is to say, whether the ACC already had enough intelligence about the particular matter or could get it by ordinary means. I am not satisfied that such was the legislature's purpose. As a general proposition the ACC must be able to verify, confirm, expand upon or corroborate existing intelligence, or correct or refute intelligence, it being remembered that the ACC must frequently hold intelligence from sources which are not as reliable or helpful as other sources (especially primary sources). An examiner must also be able to conduct an examination in a logical way. As Mr Anderson testified viz‑a‑viz a question asked of Mr Fagan (ts 138):
We were asking a question to provide the basis for a series of further questions had that question been answered.
An examiner's functions and powers (with correlative responsibilities and liabilities for witnesses) are determined by specific provisions of the Act, notably s 25A(6) and s 28(3) – that is to say, by reference to the examiner's opinion as to the relevance of the required answers to the special operation or investigation. This must fall within the terms of reference mandated by the Determination, but the results and progress of the operation and investigation itself are relevant considerations. The examiner's opinion as to the relevance of questions must be bona fide held in the same way as an opinion must be formed for the purpose of summoning the witness in the first place, but it is his opinion that matters.
In my opinion the terms 'relevant' and 'relates to' in s 25A(6) and s 28(3) should be given their ordinary meaning, namely something is relevant if it rationally affects the proof of a fact. In my opinion there is no material difference between the two terms, although it is arguable that the phrase 'relates to' could be construed more liberally than 'relevant'.
In summary, in my opinion the compellable questions which are predicated by s 30(2)(b) must, in the bona fide opinion of the examiner, be relevant to, or relate to, the special operation or investigation and it is not decisive that the ACC could obtain or has obtained relevant information from other sources or lines of enquiry, ordinary or otherwise. I turn now to the questions and hence charges in this matter.
In my opinion all of the questions were relevant and the examiner, Mr Anderson, was entitled to form that view. Moreover, I am satisfied that he did form that view. As such, counsel assisting was entitled to ask the questions and each accused was compelled to answer them upon being directed to so by the examiner.
As far as Mr Fagan is concerned, questions 1 and 2 related to his relationship to a person who was believed to be his spouse and was specifically named in the statement of facts and circumstances. Mr Anderson testified (ts 136) that in directing Mr Fagan to answer the questions he also took into account connected information that has been redacted from exhibit 2. All of the other questions directed to Mr Fagan, and all of those asked of the other accuseds, related to his relationship with, or involvement in, the Finks Motor Cycle Club and persons who were of interest to Operation Develop and were explicitly referred to in the brief.
Accordingly, in my opinion the accuseds were compellable to answer all of the questions directed to them and their objection should be overruled.
Conclusions
In my opinion all of the evidence of the examination of each of the accuseds (exhibits 5, 14 and 15) is admissible and a no case to answer cannot succeed on this issue.
I turn to consider each accused's alternative contention that the proceedings are an abuse of the process of the court and should be permanently stayed. The relevant principles are outlined in ACC v Marrapodi (per Allanson J at [142]). Having found that each accused was lawfully summonsed and that he was compellable to answer the questions which were put to him, there is no oppression or unfairness in these proceedings, or basis to conclude that they would bring the administration of justice into disrepute. I am not aware of any basis for holding that the proceedings are an abuse of process.
Orders
In my opinion each accused's application should be dismissed and I order accordingly.
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