Police, Commissioner of the Australian Federal v Hatfield, C.S. & Ors [1988] FCA 451

Each party's costs of the application for the foregoing orders be reserved.

Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG219 of 1988

BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Second Defendant AND: DORIAN MICHAEL RIBUSH Third Defendant AND: MAHMOOD RASHEED AKBARI

CORAM: Jenkinson J. PLACE: Melbourne DATE: 1 duly, 1988

Application for an order, pursuant to s.243F(1)(d) of the Customs Act 1901, that a defendant furnish a statement setting

The proceeding in which the application is made has been recently instituted in pursuance of s.243B(1) of that Act and an order has been made, pursuant to s.243E(2), directing the Official

Trustee in Bankruptcy to take control of all the property of each

defendant, all of whom are charged with the commission of an indictable offence the elements of which answer a description of a prescribed narcotics dealing contained in s.243A(3). On the hearing of the application by the applicant in respect of the defendant Mark William Thomas, Mr. Milte of counsel for that defendant offered no opposition to the making of an order of the kind for which s.243F(1)(d) makes provision if the court were to require, as a condition of granting the application, and to receive an undertaking by the Director of Public Prosecutions that the written statement to be furnished to the Official Trustee in compliance with the order would not be tendered in criminal

Mr. Maxwell of counsel for the applicant, for whom the Director of Public Prosecutions is acting as solicitor in this proceeding, indicated that, if the giving of such an undertaking were required by the court as a condition of the making of the order, it would be given. But Mr. Maxwell submitted that, if the court make such a requirement, it should be of an undertaking not

"(a) in a proceeding for giving false testimony; or

(b) in a proceeding for the recovery of a pecuniary penalty for the purpose only of

facilitating the assessment of the amount of the pecuniary penalty."

An undertaking of a similar kind had been required by Pincus J. in

Commissioner of Australian Federal Police v. Kirk (Qlid G175 of

1987; unreported; judgment 24 December 1987). His Honour

"I propose to make orders under paras.(d) and (e) against the defendants and not to defer their operation until the conclusion of the criminal proceedings. Counsel for the applicant suggested that the convenience of the defendants might be served by deferring the examinations under para.(e) until the conclusion of the committal proceedings, which are to commence very shortly. I propose to adopt that suggestion.

There appears to be no good reason, however, to defer the furnishing of statements under para.(d). It remains to be considered whether a condition should be attached to the order under para.(d), protecting the makers of the statements against their tender in the criminal proceedings. I suggested during the course of the hearing that such a protection needed consideration, but counsel for the defendants did not appear to favour it. Mr. O'Regan argued in effect that the imposition of a condition protecting the defendants against the tender of the statements in the criminal proceedings would be less than perfect protection. That appears to be so, but nevertheless, in this case at least, it would seem inappropriate to permit the use of such statements as part of the proof in the criminal proceedings; the only purpose of a statement under para.(d) is to assist the civil proceedings. I intimate that I will make an order for the furnishing of statements under para.(d) on the filing of an undertaking by or on behalf of the Director of Public Prosecutions not to tender the same, in whole or in part, in the criminal proceedings."

assumption, for the correctness of which Commissioner of

Australian Federal Police v. McMillan (1987) 70 A.L.R. 203,

Commissioner of Australian Federal Police v. Cox (1986) 70 A.L.R.

509 and Commissioner of Australian Federal Police v. Kirk (Qld

Gi75 of 1987; unreported; judgment 24 December 1987) provide

authority, that the privilege against self-incrimination is not

available in relation to statements ordered to be furnished in pursuance of s.243F(1)(d). Protection of the kind which s.243F(3) affords in relation? statements made in the course of an examination ordered in pursuance of s.243F(1)(e) is not prescribed by the legislature in relation to statements ordered in pursuance of s.243F(1)(d). So striking an omission cannot in my opinion be attributed to legislative inadvertence. If it be accepted - as I do follow the decisions to which I have referred in accepting = that the privilege against self-1ncrimination is abrogated in respect of written statements ordered to be furnished in pursuance of s.243F(1)(d) and in respect of an examination ordered in pursuance of s.243F(e), it may be inferred from the absence of any provision corresponding to s.243F(3) in relation to those written statements that either the legislature expected that the court would not make an order of the kind for which s.243F(1)(d) provides if there were reason to fear that a written statément: made in compliance with such an order was likely to afford evidence against the defendant in pending or contemplated criminal proceedings and the defendant opposed the making of the order, or, the legislature contemplated with equanimity the admission in criminal proceedings of evidence as to a defendant's property obtained by compulsion, but intended by the enactment of s.243F(3) to exclude evidence of other facts elicited in the course of an examination designed to identify, and to facilitate the Official Trustee's taking control of, such property. Whichever be the correct inference, the exaction of an undertaking does not seem to me, with respect, to be appropriate. If the latter be the correct

inference, no impediment ought to be offered by the court to use

of the written statement in evidence. ff the former, the taking

of an undertaking by the Director of Public Prosecutions or by the applicant might prove ineffective to achieve the exclusion of the written statement from criminal proceedings of the kind which are in contemplation. A number of the prescribed narcotics dealings specified in s.243A(3) involve the commission of offences against State laws. An undertaking by the Director of Public Proseéutions or by the applicant would not preclude tender of a written statement, made in compliance with an order under $-243F(1)(d), by the Crown in a criminal proceeding under State law. Pincus J. recognised, in the passage I have quoted, that the undertaking he required would afford "less than perfect protection". But he

thought it right, as he said "in this case at least", to require

the undertaking he specified. There may well have been

circumstances not disclosed in the reasons for judgment ,> which were principally concerned with the decision of other questions,

I think the probable explanation of the legislature's failure to provide, in relation to a statement ordered pursuant to $.243F(1)(d), protection of the kind which s.243F(3) prescribes, is that the discretionary powers conferred by s.243F(1), exercisable as they are in the knowledge of what is provided in s.243F(3), were considered adequate to enable the court to give effect to those considerations of policy which inspired the enactment of the latter sub-section. If that be so, the court would be able, by making an order under s.243F(1)({e) and by refusing an order under s.243F(1)(d), to afford the protection of

s.243F(3} when circumstances were shown which justified that

course. No such circumstances have been shown on behalf of the

defendant Mr. Thomas. The evidence which is before me justifies an order of the kind for which s.243F(1)(d) makes provision, and I will make such an order without requiring the giving of any

I will direct that the order in respect of the defendant Mr. Thomas be not entered before 6 July 1988. I take that course in case Mr. Milte may have supposed, upon a reading of

Commissioner of the Australian Federal Police v. Kirk, supra, that

an undertaking would be required of the Director of Public Prosecutions, and for that reason had abstained from opposing the making of an order under s.243F(1)(d). The direction I give will afford that defendant an opportunity to seek, if he desires to do

so, the substitution of some other order for the order I now -

An order with respect to the defendant Dorian Michael .-

Ribush was made by consent on 29 June 1988. Neither of the = defendants Colin Stuart Hatfield and Mahmood Rasheed Akbari' has" appeared to oppose an order of the kind for which s.243F(1)(d) provides and in respect of each of them no direction will be given

I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson.

Solicitor for the Applicant : Director of Public Prosecutions