Watt v Australian Crime Commission

THE STATUTORY SCHEME 7 The ACC is a permanent body that can, among other things, exercise coercive investigative powers to investigate serious and organised crime: ss 4, 7, 7A, 7C, 19A, 20, 22, 28 and 29 of the ACC Act. The coercive powers conferred on the ACC may be exercised by examiners appointed pursuant to the ACC Act: ss 24A and 46B. 8 Under s 24A of the ACC Act, examiners are able to use the coercive powers for the purposes of a 'special ACC operation/investigation' as defined in s 4. 9 Special investigations can be authorised by the Board of the ACC after it has considered whether methods of collecting criminal information and intelligence which do not involve the use of the powers in the ACC Act have been effective, or whether ordinary police methods of investigation into the matters in question are likely to be effective: see s 7C(2) and (3). 10 Special investigative powers are used to investigate 'federally relevant criminal activity', which is defined in part by reference to the concept of 'serious and organised crime', which in turn is defined to mean, in part, an offence: a. that involves 2 or more offenders and substantial planning and organisation; and b. that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and c. that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind. Those terms are defined in s 4 of the ACC Act. 11 When the ACC is conducting a special investigation, examiners are empowered by s 28 to summon a person to attend an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. 12 It is well settled that a statute will not be construed as abrogating the privilege against self-incrimination unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Sorby v The Commonwealth (1983) 152 CLR 281 at 309; Hamilton v Orders (1989) 166 CLR 486 at 495. There are a series of decisions of this Court which have held that s 30 of the ACC Act abrogates the privilege against self-incrimination by necessary implication: see A v Boulton (2004) 207 ALR 342; [2004] FCAFC 101 per Beaumont, Dowsett and Kenny JJ; at first instance A v Boulton (2004) 204 ALR 598; [2004] FCA 56 per Weinberg J; Mansfield; Hak Song Ra v Australian Crime Commission [2004] FCA 416; Loprete v Australian Crime Commission [2004] FCA 1476; X v Australian Crime Commission [2004] FCA 1475. 13 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 14 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).' 15 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. 16 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. 17 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. 18 The fact that s 30(4) and (5) expressly provide for the extent of use immunity in respect of information compulsorily acquired by examination under the ACC Act, in the context of the abrogation of the privilege against self-incrimination, would tend to suggest that the Legislature has explicitly addressed and decided the use to which such information may be put: see e.g. per Kenny J (with whom Beaumont and Dowsett JJ agreed) in Boulton in the Full Court at 358, [65]. Section 30(5) does not, however, make the information so acquired admissible per se but removes the bar to admissibility which might otherwise arise by reason of the nature of the proposed use of the information or by reason of the circumstances in which it was acquired. 19 The remarks of Carr J in Mansfield in the passage quoted above do not appear to have attracted specific attention in the other decisions of the Court that s 30 of the ACC Act, by necessary implication, abrogates the privilege against self-incrimination. Senior counsel for the applicant contended that there is, at the least, a serious issue to be tried - (a) that, by reason of Carr J's decision in Mansfield, the applicant may object to answering questions which may tend to incriminate him and which, by reason of him answering them, might have the additional quality of constituting a real or substantial risk of interference with the course of justice, and so (b) whether the decisions concerning s 30, including the Full Court in Boulton, nevertheless admit of the implied qualification contained in Carr J's decision in Mansfield. 20 In my judgment, accepting that those contentions are arguable, this is not an appropriate case for an injunction in the terms sought. 21 In the first place, the factual premise upon which the relief sought is based is not shown to be arguable. That is, I am not of the view that there is a serious question to be tried that the compulsory interrogation of the applicant under the ACC Act involves a real or substantial risk of interference with the course of justice in relation to the confiscation proceedings. The nature of the examination is briefly described in [3] above, and appears more fully in the determination of the Board of the ACC which is Annexure A to the examination summons. The confiscation proceedings were instituted by ex parte summons supported by an affidavit. The summons identifies the property sought to be restrained and identifies the foundation for the application as being that there are reasonable grounds to suspect that the property is crime-derived: see s 12 of the CPF Act. The summons is under s 43(2)(a) of the CPF Act, and restrains the property, so that it may not be dealt with except in accordance with the restraining order: s 49 of the CPF Act. The next step, if it is to be taken, is an application for a criminal benefit declaration under s 73 in Part 6 or forfeiture under Pt 7 of the CPF Act. The present confiscation proceedings are civil in nature: s 136 of the CPF Act. The confiscation proceedings will not of themselves result in forfeiture of the property to which those proceedings refer. 22 The affidavit in support of the summons sets out the information upon which the confiscation proceedings were instituted. It includes information apparently obtained from an earlier examination conducted by an Examiner of the ACC of the applicant. The information identified is quite extensive. It is in my view merely speculative that the information now sought to be obtained from Mr Watt under the current examination will touch in any material way upon the factual issues which might arise in the confiscation proceedings. I think it is necessary for the applicant to take the matter beyond mere speculation to demonstrate a serious question to be tried that the proposed questioning might interfere with the administration of the course of justice in the confiscation proceedings. 23 In the second place, I am not persuaded that the balance of convenience would lead to the grant of the injunction sought, even if a serious question to be tried were made out. From the applicant's perspective, the disadvantage is obvious. He may have been obliged to answer questions which, at the final hearing, may be found to have been improperly administered or to have been questions which he would not have been obliged to answer. That is a grave potential detriment. The protection of the integrity of court processes, to ensure they are not contaminated by unfairness, is a fundamental feature of our system of justice. But there is, even on the assumption as to the existence of a serious question to be tried, only a risk of the examination interfering with the course of justice in the confiscation proceedings. The Supreme Court of the Northern Territory is not obliged to receive evidence which is found to have been illegally obtained. The discretion to refuse to admit such evidence is clear: Bunning v Cross (1978) 141 CLR 54 at 74 - 75. This Court is in a position to hear and finally determine the proposed application for final relief by early February 2005. The final determination will decide the lawfulness or otherwise of the proposed compulsory examination, or of parts of it, by reference to the confiscation proceedings. The confiscation proceedings were commenced on 18 September 2003, and have been adjourned thereafter from time to time, including most recently to 4 March 2005, on the basis of the continuance of an interlocutory order. If those proceedings continue to trial, it is clear that trial will occur well after 4 March 2005. The decision as to the lawfulness or otherwise of the proposed compulsory examination can therefore be made so as to be available to the applicant at the hearing of the confiscation proceedings. The admissibility of the information obtained at the examination can be determined in that light. Indeed, the Supreme Court of the Northern Territory may, at the hearing, receive further evidence relevant to its discretion to admit any information obtained at the examination. 24 There is also, I infer from the course of the confiscation proceedings to date, the real prospect that the confiscation proceedings may not proceed to a hearing. Unless the restraining order is set aside (see s 64 of the CPF Act), or in any event, the forfeiture of property will be pursued in separate proceedings under Pt 6 or Pt 7 of the CPF Act (or perhaps by amendment of the existing confiscation proceedings to restructure them under either of those Parts). Senior counsel for the applicant distinguished the decision in Boulton from the circumstances which obtained in Mansfield because, in the former case, there were no current proceedings the just disposition of which might be impaired by the proposed examination. It is only the existence of the current confiscation proceedings - in reality restraining proceedings - which enable that distinction to be drawn. If those current proceedings do not proceed to trial, the apprehended interference with the course of justice will not arise in relation to them. 25 On the other hand, the terms of the injunction which is sought indicate the real prospect of the currently proposed examination being deferred indefinitely. Senior counsel for the applicant acknowledged that the order sought left it really in the hands of the applicant as to whether he answered any particular question. He stressed that the applicant does not know fully the grounds upon which the confiscation proceedings are being maintained, and so would be wary about the consequences of answering questions. He did not suggest any other form of order which might remove from the applicant to any degree the capacity to claim that the answer to a particular question might tend to interfere with the administration of the course of justice in the confiscation proceedings. Moreover, the confiscation proceedings by March 2005 will have been on foot without any real steps having been taken towards their resolution. The initial interim restraining order has been extended from time to time, without any further directions to lead to its final disposition. The parties appear to have been content with that process. It may reflect that, in reality, the confiscation proceedings are no more than a procedure to hold the position until other proceedings under Pt 6 or Pt 7 are brought and resolved. The applicant has not indicated that he intends to make any application to set aside the restraining order under s 64 of the CPF Act, or to bring the proceedings to a head in any other way. They may take a further lengthy period to resolve. That delay in the Examiner being able to complete the examination, and perhaps to progress it much or at all, in a matter which is of public importance is itself very significant. The nature of the ACC, its functions under the ACC Act, and the nature of the special investigation are sufficient reason to be satisfied of its importance, and of the timely gathering of information. 26 I have therefore come to the firm view that the injunction sought should be refused. 27 I have assumed to this point that there is an arguable proposition of law, based upon the remarks of Carr J in Mansfield, that despite the abrogation of the privilege against self-incrimination, s 30 of the ACC Act does not authorise the putting of questions or the insistence upon answering questions which might constitute an interference with the administration of the course of justice in particular existing proceedings. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Mason ACJ at 155 explained that the balance of convenience may be affected by the Court's perception or evaluation of the strength of the applicant's case. I do not intend to determine the correctness or otherwise of the contentions of law put on behalf of the applicant. But, it is appropriate to indicate that, upon the brief opportunity available to consider the contention, I have the provisional view that they are not strong submissions. Although not directly confronted in the other cases under s 30 of the AAC Act, the contention may require the reading down of the general expressions used by Kenny J for the Full Court in Boulton at 360, [72], and of Finn J in Barnes v Boulton [2004] FCA 1219 at [30] - [32]. In addition, as I have indicated above, s 30(5) would appear to address the consequences of the abolition of the privilege against self-incrimination by defining the extent of 'use immunity', and expressly to provide for the use in the confiscation proceedings of information obtained in the examination. To the extent to which it is appropriate to have regard to the merits of the legal contentions advanced on behalf of the applicant, I do not think those merits move the scales in favour of the making of the order sought. I am not, however, deciding the correctness or otherwise of those contentions. As I have said, even if they are correct, the material does not satisfy me that, as a matter of fact, there is a serious question to be tried in this particular matter that the examination may involve questions and answers which will, or may, interfere with the administration of the course of justice in the confiscation proceedings. 28 The application for interlocutory relief is therefore refused. The applicant is clearly entitled to seek further interlocutory relief in this matter if a proper occasion to do so arises. I do not need specifically to reserve liberty to him to do so. The costs of the application for interlocutory relief will be reserved. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Applicant: Patsouris & Associates

Solicitor for the Respondent: Australian Crime Commission

Date of Hearing: 14 December 2004; 15 December 2004