R v Wallace [No 2] - [2013] WADC 17

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…

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.

Continue reading R v Wallace [No 2]

Details

AGLC: R v Wallace [No 2] [2013] WADC 17
Case: [2013] WADC 17
Decision Date: 7 FEBRUARY 2013

CaseChat Overview and Summary

The case of R v Wallace [No 2] involved the defendants, Mr Wallace, Mr Fagan, and Mr Marrapodi, who were charged with refusing to answer questions during examinations conducted by the Australian Crime Commission (ACC). The dispute centred on the validity of the summonses issued to the defendants and their compellability to answer the questions posed. The matter was heard in the Supreme Court of South Australia.

The court was required to decide two main legal issues: firstly, whether the summonses issued to the defendants were valid, and secondly, whether the defendants were compellable to answer the questions put to them. The validity of the summonses hinged on whether the ACC examiners had acquired the requisite satisfaction under the conditions outlined in the relevant legislation. The compellability of the defendants turned on the relevance of the questions asked and whether the answers were necessary for the investigation.

In delivering the judgment, the court found that the issue of whether the examiners had acquired the required satisfaction was subjective and could not be simply replaced by the court's own opinion. The court accepted the evidence of the examiners, who had extensive experience and were assisted by legal counsel, that they had followed the ACC's procedures in issuing the summonses. The summonses were deemed valid as they related to a special investigation mandated by the ACC Board. The court further held that the defendants were compellable to answer the questions as they were relevant to the investigation and necessary for the ACC to fulfil its mandate.

The court ruled that the summonses were valid and that the defendants were compellable to answer the questions. The defendants' appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.