Saad & Ors v Commissioner of the Australian Federal Police

[2022] HCATrans 71

[2022] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M63 of 2021

B e t w e e n -

JOSEPH SAAD & ORS (ACCORDING TO THE SCHEDULE)

Applicants

and

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 13 APRIL 2022, AT 2.29 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR P.H. SOLOMON, QC appears with MR C.G.O. JUEBNER and MS A.R. SINGH for the applicants.  (instructed by Doogue + George Criminal Lawyers)

MS L.G. DE FERRARI, SC appears with MR H. MAZLOUM and MR A.R. HANGER for the Commissioner of the Australian Federal Police.  (instructed by Australian Federal Police Criminal Assets Litigation)

GORDON J:   Yes, Mr Solomon.

MR SOLOMON:   If your Honours please.  Your Honours, we respectfully contend that Justice Walker made a series of errors.  Can I commence by identifying for your Honours the four paragraphs in the judgment of her Honour in which we contend those errors are most clearly apparent.  Could I take your Honours then to the principal judgment, the 3 September judgment, tab 5 in the application book, paragraph 84, which is on page 75 of the book, and where her Honour there says:

Thus, where the affidavits included hearsay material – that is, evidence of a previous representation made by a person – they did so not to prove the existence of a fact that that person intended to assert by the representation, but to inform the Court of the matters to which the deponents had regard in forming their suspicion, regardless of the truth or otherwise of the previous representations.

Second of four, could I ask your Honours to turn to paragraph 128, and your Honours will see, about six lines in, her Honour says:

In my opinion, in selecting a ‘suspicion’ held on reasonable grounds as the touchstone for a restraining order, Parliament did not intend that the authorised officer was required to prove the facts that underpinned his or her suspicion.

Thirdly of four in paragraph 129, second sentence, the third of four places where we contend your Honours will see the error, her Honour said:

In that statutory context, if the affidavit includes hearsay evidence, that evidence is not deposed to for the existence of the asserted fact.

Then fourth of four, paragraph 132, her Honour concludes:

As a consequence, where the grounds for the suspicion set out in an affidavit under s 18(3) include hearsay evidence, they are not inadmissible by reason of s 59 of the Evidence Act.  In that context, s 75 is simply not engaged.

EDELMAN J:   Mr Solomon, do all four of those alleged errors come down to basically the same point, which is that, under section 18, reasonable grounds can only include facts?

MR SOLOMON:   The answer to whether they conduce to the same point is yes, I think.  The answer to whether they conduce to that point is broadly yes as well, Justice Edelman.

GORDON J:   Could I ask one other question while we are on this sort of what I might call general propositions.  Is it the position, as I read both the decision at first instance and on appeal, that you led no evidence, adduced nothing by way of affidavit and did not seek to cross‑examine either of the deponents?

MR SOLOMON:   Yes, that is all correct, if your Honour pleases.

EDELMAN J:   On appeal, there was no complaint made that the matters that had been raised in the affidavits of Mr Creighton could not have established reasonable grounds for suspicion – the focus was on this point about facts?

MR SOLOMON:   Yes.  We contended in the Court of Appeal and seek to contend in this Court that the predicate – the anterior question – concerns admissibility and we framed our argument in the Court of Appeal, frame it here and seek to frame it were leave to be granted by reference to the issue of admissibility. 

GORDON J:   Just so I can understand that, I had understood your submission to contend that there was inconsistency in relation to those kinds of matters between the position adopted by President Allsop, as he once was – International Finance Trust – and the approach adopted by Justice Walker?  Am I right about that?

MR SOLOMON:   Yes.

GORDON J:   Is it the position that when one reads what President Allsop was looking at – especially picking up what you describe as his strands of reasoning at 23, 24 and then 35 – that what was done here was more than what he said was not available or not open to be done?

MR SOLOMON:   Yes.

GORDON J:   Thank you.

MR SOLOMON:   Indeed, as your Honours have seen – I will come back to President Allsop shortly – can I just say some more broadly introductory things about the issue of admissibility – four features, these.  First, under section 18(3) – as your Honours will have seen:

The application . . . must be supported by an affidavit of an authorised officer . . . 

The affidavit must include the grounds on which the authorised officer holds those suspicions.

Second, your Honours will have seen the application is interlocutory.  Third, the application is ancillary to a subsequent forfeiture order.  Lastly, in express terms, the application is governed by the rules of evidence.  Can I notice two further features of the matter?

GORDON J:   Can I just ask how any of those matters assist you on the admissibility question when it is a George v Rockett kind of analysis?

MR SOLOMON:   They assist on the admissibility question in the way in which we contend can be seen in the way President Allsop approached the issue.  They assist because on the question of construction under section 18(3) in respect of the affidavit, the circumstance that it is interlocutory involves an exercise of judicial power under 18(1)(f) requires the Court to be satisfied.  Those considerations considered collectively require, we say, that the suspicion on reasonable grounds needs to be supported by admissible facts.

EDELMAN J:   Mr Solomon, it may depend upon what you mean by “facts”.  I mean, by “facts”, do you mean the underlying facts about the criminality, or do you mean facts such as what a person has been told, what a person might have inferred, or general circumstances?

MR SOLOMON:   Yes, I certainly do not mean the former.  All jurisprudence is clear that that is not required, and I broadly mean the latter.  The individual who was the deponent here – who held the reasonable suspicion - needed, we say, to comply with section 75 insofar as setting out the basis on information and belief for the matters of the offence generally set out in a narrative way in the affidavit – in particular at paragraphs 17 to 22.

GORDON J:   So, let us just test that proposition - must comply with 75 insofar as the basis of information and belief, sets out the offence generally and tells a story basically.

MR SOLOMON:   Yes.

GORDON J:   That is not what the Act is directed at, though, is it?  It is directed at a reasonable suspicion, as section 18 requires, of certain material which is set out in an affidavit.  One of the things that must be set out, as you say, are the suspicions.  Is that not what this affidavit does, even it is in general terms, at application book 6?  In other words, it sets out the sources of the information upon which the reasonable suspicion – which you say is not challenged – is identified.  It summarises in a summary form what the position is in relation to the suspects, identifies the suspected offences, and then identifies in general terms the sort of methodology that has been adopted, including by reference to exhibits of particular documents.

MR SOLOMON:   Yes, and ‑ ‑ ‑

GORDON J:   What is wrong with that and why is it not consistent largely with President Allsop’s approach in Finance Trust?

MR SOLOMON:   We say two things in response to that, respectfully.  The first is this.  We acknowledge that in paragraph 2, there are matters set out which may on evaluation comprise satisfaction with section 75, although we said below, and we say here, that they are not sufficient – and that of itself is an important question.

Secondly, that is not the issue on which we lost below.  I am not suggesting it is not relevant to whether the Court is persuaded to grant us leave, but it was not the conclusion of Justice Walker that there was sufficient compliance with section 75 in respect of those matters.  Her Honour’s conclusions, as your Honours have seen, was that that issue did not need attention in the appeal that was brought in the Court of Appeal.

Can I briefly go to the judgment of President Allsop in International Finance Trust – I will only be brief.  Your Honours will have seen these features of it.  Your Honours will have seen at paragraph 4 that his Honour identified the application was “interlocutory” and further down in paragraph 4 that the effect of the order was “ancillary to forfeiture” – so here.  Secondly, his Honour observed at paragraph 9 that:

the Parliament has made clear that the application . . . is to be governed by the rules of evidence -

and by a different provision, that is so here.  Then at 13 and following, his Honour evaluated section 9 and the circumstances when the rules of evidence can be dispensed with.  Although her Honour Justice Walker says some things about that, there was no such application in this case.  Indeed, his Honour noted that was so in Finance Trust at 19 where there also was:

No such application -

Then, as your Honour Justice Gordon has identified to me – and I have agreed – the essence of the judgment is in 23, 24 to an extent and 35.  In 23, his Honour stated:

The facts that induce the state of mind of the person must be stated . . . they are the matters that have led to, or induced, the authorised officer to the “positive feeling of actual apprehension or mistrust amounting to a slight opinion -

Then, importantly in 35:

The method of proof of the grounds was clearly admissible in that case . . . Giles JA was making the point that proof is not required of underlying facts as to criminality; what is relevant is proof as to what it was that the person’s suspicion was based on.

GORDON J:   I think that is right, Mr Solomon, but the point that I was making was the paragraph you passed over, which is 24, where his Honour draws a distinction between what is not sufficient and what is sufficient.

MR SOLOMON:   Yes.

GORDON J:   In other words, one cannot just assert a fact – i.e., you murdered somebody – you have to set out the basis for it.

MR SOLOMON:   Yes.

GORDON J:   My question to you is, what is wrong with what is done in the affidavit of Mr Creighton, which is at application book 6 and following?

MR SOLOMON:   Yes.  The answer to that, your Honour, is this.  The place in that affidavit where the deponent sets out on information and belief on what he relied is at paragraph 2.  It is the important paragraph for the fair balance that President Allsop spoke of in Finance Trust.  Your Honours will notice these features of paragraph 2.  The deponent does not identify the name of any person from whom he obtained information.  He does not exhaustively set out his sources.  He does not describe the documents specifically examined.  He does not redact or otherwise exhibit them to the affidavit.  He does not state who the authors are of the documents.  He fails – or he does not ‑ ‑ ‑

GORDON J:   My problem with that complaint ‑ ‑ ‑

MR SOLOMON:   Sorry, your Honour.

GORDON J:   That is all right, Mr Solomon, I should not have interrupted.  My problem with that complaint is the answer you gave to Justice Edelman at the beginning and that is you do not challenge the fact that there was reasonable suspicion set out by reference to this material.

MR SOLOMON:   Yes.  Our submission insofar as paragraph 2 is concerned is twofold.  Less importantly, it is not the basis on which we lost below.  More importantly, it is not, we say, sufficient to satisfy section 75.  If your Honours broadly are against me on that, it is such that the affidavit will otherwise be considered to be sufficient.  The force of our argument below was seeking to persuade the Court of Appeal as to why paragraph 2 is insufficient.  The approach the Court of Appeal adopted, and as your Honours know it is arguably different and inconsistent with President Allsop’s, was not to evaluate the sufficiency of paragraph 2 on a premise that the provisions of the Evidence Act were engaged.  Her Honour instead concluded that the provisions were not for these purposes engaged.

But I want to make sure, your Honours – I have nearly finished what I seek to say – I want to make sure I respond as comprehensively as I can to the essence of the question.  If your Honours consider paragraph 2 to be sufficient to comply with section 75, we do not have another complaint ‑ ‑ ‑ 

EDELMAN J:   But, Mr Solomon, it depends – I will have a third go at this – but it depends what you mean by sufficient to comply with section 35.  If by that you mean that they are very vague statements which do not amount to anything which could be a reasonable ground for suspicion, that was never a ground of appeal in the Court of Appeal.  If by your complaint about section 75 you mean something else, that matters that relate to a ground somehow need to pass through a different hurdle for admissibility, then I think you need to identify exactly what that hurdle is ‑ ‑ ‑ 

MR SOLOMON:   Yes ‑ ‑ ‑

EDELMAN J:   If they are not relevant to an underlying fact, then what is the hurdle that a ground needs to meet?

MR SOLOMON:   Yes, let me seek – on the third occasion your Honour is seeking to get an answer out of me to answer that – the essence of the affidavit material against us is at paragraphs 17 to 22.  That is where the essence of the offending is set out.  Absent paragraph 2 that would be unsupported on information and belief. 

On the judgment of her Honour Justice Walker, that would not matter because it would found the suspicion set out at the end of the affidavit in any event.  On the analysis of President Allsop it would matter.  So, framed that way, there is a divergence of opposing views and the question, Justice Edelman, then to impress is whether by paragraph 2 the deponent has sufficiently attended to satisfy section 75 of the Evidence Act to provide the basis for the admissibility of the essence of the affidavit set out in paragraphs 17 to 22.

If your Honours please, they are the submissions for the applicants.

GORDON J:   The Court will adjourn for a moment to consider its position.

AT 2.49 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.52 PM:

GORDON J:   We do not need to hear from you, Ms De Ferrari.

The Court is of the view that the application for special leave does not identify a question of principle and there is no reason to doubt the correctness of the conclusion reached by the Court of Appeal of the Supreme Court of Victoria.

Special leave to appeal is refused with costs.

Adjourn the Court to 9.30 am on Wednesday, 20 April.

AT 2.53 PM THE MATTER WAS CONCLUDED