Watt v Australian Crime Commission - [2004] FCA 1669

FEDERAL COURT OF AUSTRALIA
Watt v Australian Crime Commission [2004] FCA 1669
Australian Crime Commission Act2002 (Cth) ss 4, 7, 7A, 7C, 19A, 20, 22, 24A, 28, 29, 30, 30(4), 30(5), 46B
Income Tax Assessment Act 1936 (Cth) s 264
Taxation Administration Act 1953 (Cth) ss 8C, 8D
Criminal Property Forfeiture Act (NT) s 12, 43, 49, 64, 73, 136
Mansfield v Australian Crime Commission (2003) 132 FCR 251; [2003] FCA 1059 cited
Sorby v The Commonwealth (1983) 152 CLR 281 cited
Hamilton v Orders (1989) 166 CLR 486 cited
A v Boulton (2004) 207 ALR 342; [2004] FCAFC 101 cited
A v Boulton (2004) 204 ALR 598; [2004] FCA 56 cited
Hak Song Ra v ACC [2004] FCA 416 cited
Loprete v Australian Crime Commission [2004] FCA 1476 cited
X v Australian Crime Commission [2004] FCA 1475 cited
Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564 cited
Bunning v Cross (1978) 141 CLR 54 cited
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 cited
Barnes v Boulton [2004] FCA 1219 cited
GARY WILLIAM WATT v AUSTRALIAN CRIME COMMISSION
NTD 25 of 2004
MANSFIELD J
15 DECEMBER 2004
DARWIN (HEARD IN ADELAIDE VIA TELEPHONE LINK)

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 25 OF 2004

BETWEEN:

GARY WILLIAM WATT
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

15 DECEMBER 2004

WHERE MADE:

DARWIN (HEARD IN ADELAIDE VIA TELEPHONE LINK)

THE COURT ORDERS THAT:
1. The application for interlocutory relief be refused.
2.Costs of the application for interlocutory relief be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 25 OF 2004

BETWEEN:

GARY WILLIAM WATT
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

15 DECEMBER 2004

PLACE:

DARWIN (HEARD IN ADELAIDE VIA TELEPHONE LINK)

REASONS FOR JUDGMENT

This application is for an interlocutory order restraining the Australian Crime Commission (the ACC) by its Examiner from requiring Gary William Watt (the applicant) to answer at an examination conducted under the Australian Crime Commission Act2002 (Cth) (the ACC Act) any questions which the applicant objects to answer upon the ground that to do so may tend to interfere with the administration of justice by reason of his involvement as a party in Supreme Court of the Northern Territory proceedings No 148 of 2003 entitled ‘The Director of Public Prosecutions v Gary William Watt’ (the confiscation proceedings). The application was made orally, and before the filing of any documents. It has been heard upon the undertaking of the solicitor for the applicant, proffered through counsel, that he has instructions to, and will, formally institute proceedings as soon as practicable. The urgency of the application has meant that the material before the Court is largely from oral assertions, although ultimately there was no real dispute (at least at this stage of the proceedings) on…

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: [2004] FCA 1669
Decision Date: 15 DECEMBER 2004

CaseChat Overview and Summary

The applicant, Gary William Watt, sought an interlocutory order to prevent the Australian Crime Commission (ACC) from requiring him to answer certain questions during an examination conducted under the Australian Crime Commission Act 2002 (Cth). Watt argued that answering these questions might interfere with the administration of justice due to his involvement in separate Supreme Court of the Northern Territory proceedings. The legal issues before the court were whether the ACC could compel Watt to answer questions that might incriminate him and whether such compulsion could interfere with the administration of justice. The court considered the relevant provisions of the Australian Crime Commission Act and compared them with previous judicial decisions. It found that while Watt had a privilege against self-incrimination, the statute did not allow him to avoid answering questions that could potentially incriminate him. The court concluded that Watt could not prevent the ACC from requiring him to answer questions that might tend to incriminate him, as such compulsion did not constitute an interference with the administration of justice. The application for interlocutory relief was therefore refused, and the costs of the application were reserved.

Orders

Orders of the court

1. The application for interlocutory relief be refused.

2. Costs of the application for interlocutory relief be reserved.

Background

Background to the litigation

This application is for an interlocutory order restraining the Australian Crime Commission (the ACC) by its Examiner from requiring Gary William Watt (the applicant) to answer at an examination conducted under the Australian Crime Commission Act2002 (Cth) (the ACC Act) any questions which the applicant objects to answer upon the ground that to do so may tend to interfere with the administration of justice by reason of his involvement as a party in Supreme Court of the Northern Territory proceedings No 148 of 2003 entitled ‘The Director of Public Prosecutions v Gary William Watt’ (the confiscation proceedings). The application was made orally, and before the filing of any documents. It has been heard upon the undertaking of the solicitor for the applicant, proffered through counsel, that he has instructions to, and will, formally institute proceedings as soon as practicable. The urgency of the application has meant that the material before the Court is largely from oral assertions, although ultimately there was no real dispute (at least at this stage of the proceedings) on the matters of fact which I regard as significant to its determination.BACKGROUND On 6 December 2004, an Examiner of the Australian Crime Commission (ACC) issued a summons to the applicant pursuant to s 28 of the ACC Act that required him to appear before the Examiner on 13 December 2004, and as required thereafter, to give evidence in relation to his activities and his knowledge of the activities of other members and associates of the Hells Angels Motorcycle Club since January 1997 (the summons). The applicant attended before the Examiner on 13 December 2004 in response to the summons and represented himself. A short time after the commencement of the examination the applicant made certain submissions which he read from a document, which he stated had been prepared on the advice of his legal representatives. The submissions were to the effect that the examination should be adjourned on the basis that the applicant is a party to the confiscation proceedings under the Criminal Property Forfeiture Act (NT) (the CPF Act), and that requiring him to answer questions in the examination would be contrary to his privilege against self-incrimination in respect of those proceedings and would constitute an improper interference with the administration of justice in those proceedings. The applicant also stated to the Examiner that his request for an adjournment was based on the reasoning of Carr J in Mansfield v Australian Crime Commission (2003) 132 FCR 251; [2003] FCA 1059 (Mansfield), and that the adjournment he was seeking should be granted until the confiscation proceedings to which he is a party are finally determined by the Supreme Court of the Northern Territory. The Examiner refused the applicant’s request for an adjournment and indicated that he intended to proceed with the examination unless a court made an order preventing him from doing so. The Examiner then briefly adjourned the examination in order to give the applicant the opportunity to consult with his legal representatives and make any application he felt appropriate in respect of seeking such an order from a 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

Senior counsel for the applicant made the formal submission that those decisions are wrong, and that in particular I should not follow the Full Court decision in Boulton. He acknowledged, however, that I am bound to do so. I observe that, so far as my researches go and consistent with the knowledge of the ACC as reported to me, no application for special leave to appeal to the High Court from the decision of the Full Court has been instituted.CONSIDERATION Senior counsel on behalf of the applicant contended that, notwithstanding those authorities, there exists a serious question to be tried based upon the remarks of Carr J in Mansfield at [72] – [73]. His Honour said:‘All three judges in De Vonk rejected the proposition that if an examinee were obliged to answer questions notwithstanding that the answers might incriminate him, then no contempt of court could arise from the putting of the questions – see Foster J at 569) and Hill and Lindgren JJ (at 558-589). In the joint judgment there is the following passage:“On the whole we think that the legislature should not be taken in s 264 of the Act and ss 8C and 8D of the Taxation Administration Act to have authorised the compulsory interrogation of persons in circumstances where so to do might constitute an interference with the administration of justice, civil or criminal.”In my view, the same applies to s 30 of the Act, notwithstanding the provisions of subs (5).’ The reference to De Vonk is to Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564. In that case the Full Court (Foster, Hill and Lindgren JJ) held that, although s 264 of the Income Tax Assessment Act 1936 (Cth) (the ITA Act) and ss 8C and 8D of the Taxation Administration Act 1953 (Cth) abrogated the privilege against self-incrimination, those provisions did not authorise the compulsory interrogation of persons in circumstances where so to do might constitute an interference with the administration of justice. In neither Mansfield nor De Vonk did the Court conclude that in fact the compulsory interrogation might constitute a real or substantial risk of interference with the course of justice, so in each instance the interrogation proceeded. In each case, the Court reserved liberty to the person being interrogated to apply to the Court if, in respect of particular questions, that risk was said to arise. Unlike s 264 of the ITA Act, s 30 of the ACC Act addresses the extent of ‘use immunity’. Section 30(4) and (5) provide:‘Use immunity available in some cases if self-incrimination claimed(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 subjection 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.’It is common ground that s 30(5)(c) includes the confiscation proceedings under the CPF Act.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 25 OF 2004

BETWEEN:	GARY WILLIAM WATT APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	DARWIN (HEARD IN ADELAIDE VIA TELEPHONE LINK)

JUDGE:	MANSFIELD J
DATE:	15 DECEMBER 2004
PLACE:	DARWIN (HEARD IN ADELAIDE VIA TELEPHONE LINK)