FEDERAL COURT OF AUSTRALIA

Hak Song Ra v Australian Crime Commission [2004] FCA 416

CRIMINAL LAW AND PROCEDURE – Australian Crime Commission conducting a special investigation – criminal proceeding for offences under federal law commenced in respect of the matters the subject of the special investigation – summonses issued for the examination of persons who are potential witnesses in the criminal proceeding – whether power to conduct investigation is terminated upon the commencement of the criminal proceeding – whether the proposed examination constitutes an undue interference with the exercise of the federal judicial power

Australian Crime Commission Act 2002 (Cth)  ss 7A, 7B, 7C, 25A, 28, 30

A v Boulton (2004) 204 ALR 598 cited

Mansfield v Australian Crime Commission [2003] FCA 1059 cited

Health Insurance Commission v Freeman (1998) 88 FCR 544 considered

Huddart Parker and Co Proprietary Limited v Moorehead (1909) 8 CLR 330 distinguished

Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 distinguished

Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328 distinguished

De Greenlaw v NCSC (1989) 15 ACLR 381 applied

Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission (1982) 152 CLR 460 applied

Commissioner of Taxation v De Vonk (1995) 61 FCR 564 cited

Grollo v Bates (1994) 53 FCR 218 cited

Hammond v The Commonwealth of Australia (1982) 152 CLR 188 considered

HAK SONG RA & ORS v AUSTRALIAN CRIME COMMISSION & ORS

V 334 of 2004

MERKEL J

MELBOURNE

8 APRIL 2004

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     The applicants have applied for an order pursuant to s 39B of the Judiciary Act 1903 (Cth) to restrain the Australian Crime Commission (“the ACC”) from conducting an examination of them pursuant to provisions of the Australian Crime Commission Act 2002 (Cth) (“the Act”).  The application has been made in the following circumstances.

2                     In April 2003 the Australian Federal Police intercepted a large importation of heroin into the State of Victoria.  Subsequently, the Pong Su, a North Korean bulk cargo vessel, was intercepted by the Australian Navy and ordered to sail to Sydney.  On 20 April 2003 the complete crew of the Pong Su, comprising the 27 applicants and 3 other crew members, along with four on-shore persons who were also allegedly involved in the importation of the heroin, were charged with criminal offences under the Criminal Code Act 1995 (Cth) and the Customs Act 1901 (Cth).

3                     On 15 May 2003 the Board of the ACC made an instrument under s 7C of the Act entitled “Australian Crime Commission Special Investigation Authorisation and Determination (South East Asian Organised Crime) 2003” (“the ACC Special Investigation Instrument”).  Under cl 4 and sch 1 of the ACC Special Investigation Instrument the ACC was authorised to investigate, inter alia, serious and organised crime against Australian law that may have been committed since 1 January 1990 or may in the future be committed in relation to the unlawful importation of illegal drugs into Australia from South East Asia for distribution or purchase within Australia (“the special investigation”).

4                     Clause 8 of the ACC Special Investigation Instrument states that the purpose of the special investigation is:

“(a)     to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and

(b)               to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and

(c)               to make appropriate recommendations to the Board about reform of:

(i)                 the law relating to relevant offences; and

(ii)               relevant administrative practices; and

(iii)             the administration of the courts in relation to trials of relevant offences.”

5                     On 5 March 2004, after a committal hearing in the Magistrates’ Court of Victoria which commenced on 5 November 2003, the three other members of the crew and the four on-shore persons were committed to stand trial.  The 27 applicants were ordered to be discharged on the ground that there was insufficient evidence against them to support a conviction.  The Commonwealth Deputy Director of Public Prosecutions has informed the ACC and the solicitors acting for the applicants that there is no intention to institute further proceedings in respect of any of the applicants.

6                     On 5 March 2004, the second respondent (“Mr Hannaford”), an Examiner of the ACC, issued summonses pursuant to s 28(1) of the Act requiring each of the applicants to appear before him on 15 March 2004 at the Baxter Immigration Reception and Processing Centre, where the applicants are located, for the purposes of the special investigation.  The summonses state that the applicants are required to give evidence in relation to their knowledge of:

“·  the movements of the PONG SU shipping vessel between the 14^th of February 2003 and the 20^th of April 2003;

·        the purpose of the voyage of the PONG SU shipping vessel to Australian waters in April 2003;

·        the importation into Australia of a quantity of heroin seized by the Australian Federal Police at Boggaley Creek, Victoria on 16  April 2003; and

·        the involvement of other crew members in the importation into Australia of a quantity of heroin in April 2003.”

7                     On 15 March 2004 senior counsel for the applicants applied to Mr Hannaford to adjourn the examination to enable the applicants to make application to the Federal Court for orders that would prevent the examinations from proceeding.  Mr Hannaford refused the application for an adjournment and stated that he proposed to proceed with the examinations unless an order restrained him from doing so.

8                     On 16 March 2004, the applicants commenced a proceeding in the Court in which they applied for declarations that the summonses to the applicants and the decision of Mr Hannaford to conduct examinations of the applicants are invalid.  The applicants also claimed injunctions restraining Mr Hannaford and the third respondent, another Examiner of the ACC, from conducting examinations of the applicants.

9                     The applicants are nationals of North Korea and do not have a visa to remain in Australia.  Consequently, they are being held in immigration detention pending their deportation.  Orders have been made pursuant to s 24(3) of the Act requiring the delivery and retention of the applicants’ passports to Mr Hannaford thereby preventing the deportation of the applicants.  In the meantime, undertakings were given to the Court on behalf of the respondents that the examinations would not proceed until the proceeding had been heard and determined.

10                  The contentions of the applicants were put in a number of different ways.  In substance, the applicants contended that the compulsive investigatory power conferred on the ACC under the Act could not be used to gather evidence if there is a concurrent criminal proceeding.  The applicants argue that the compulsive investigatory power therefore terminated upon the bringing of charges or, in the alternative, the power was proposed to be exercised in a manner that was calculated to interfere with the exercise of the judicial power in the criminal proceeding.  In addition, the applicants argued that the examinations are for an improper purpose, namely to assist the conduct of the criminal proceeding.  These contentions require consideration of the provisions of the Act relating to investigations.

11                  The ACC consists of its Chief Executive Officer, examiners and members of its staff (s 7(2)).  The Board of the ACC consists, inter alia, of the Commissioners of the Federal, State and Territory police forces (s 7B(2)).

12                  Under s 7A the functions of the ACC are:

“(a)     to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;

(b)       to undertake, when authorised by the Board, intelligence operations;

(c)       to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;

(d)       to provide reports to the Board on the outcomes of those operations or investigations;

(e)       to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;

(f)        to provide advice to the Board on national criminal intelligence priorities;

(g)       such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.”

13                  The functions of the Board are set out in s 7C(1):

“(a)     to determine national criminal intelligence priorities;

(b)       to provide strategic direction to the ACC and to determine the priorities of the ACC;

(c)       to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;

(d)       to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;

(e)       to determine, in writing, the class or classes of persons to participate in such an operation or investigation;

(f)        to establish task forces;

(g)       to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC;

(h)       to report to the Inter-Governmental Committee on the ACC's performance;

(i)        such other functions as are conferred on the Board by other provisions of this Act.”

14                  Section 7C(3) provides for the Board to make a determination that an investigation into matters relating to federally relevant criminal activity be a special investigation.  A federally relevant criminal activity is defined in s 4 as, inter alia, circumstances implying, or any allegations, that serious and organised crime may have been, may be being, or in the future may be, committed against a law of the Commonwealth, or a law of a Territory or of a State provided the offence has a federal aspect.

15                  Section 25A provides for the conduct of an examination for the purposes of a special investigation.  The person examined may be represented by a legal practitioner (s 25A(2)(a)) and the examination must be held in private (s 25A(3)).  Subject to the examiner’s discretion, a witness may be examined or cross-examined on any matter the examiner considers relevant to the special investigation (s 25A(6)).

16                  Sections 25A(9) and (12) require an examiner to exercise his or her powers in a particular manner where there is pending criminal proceeding in relation to a matter being investigated by the ACC.  Section 25A(9) provides:

“An examiner may direct that:

(a)       any evidence given before the examiner; or

(b)       the contents of any document, or a description of any thing, produced to the examiner; or

(c)       any information that might enable a person who has given evidence before the examiner to be identified; or

(d)       the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.”

17                  Section 25A(12) provides:

“If:

(a)       a person has been charged with an offence before a federal court or before a court of a State or Territory; and

(b)       the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;

the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.”

18                  Section 28 confers power on an examiner, for the purposes of a special investigation, to summon a person to appear before the examiner and give evidence on oath or affirmation (subss 28(1), (5) and (7)).  Section 30 provides that a person who fails to attend as required by a summons or fails to comply with the requirement of the examiner to answer a question asked at an examination or to produce a required document, is guilty of an indictable offence (subss 30(1), (2) and (6)).  However, a person’s answer to a question required to be answered by an examiner, or the production by the person of a document or thing required to be produced by summons served under the Act, is, save in circumstances not presently relevant, not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty (s 30(5)).  The Court has held that the Act and, in particular, s 30 abrogates the privilege against self-incrimination: see A v Boulton (2004) 204 ALR 598 at 616 [100] and Mansfield v Australian Crime Commission [2003] FCA 1059 at [49].  Accordingly, contrary to the contention of the applicants they do not have a right to silence in respect of their examinations. 

19                  I turn first to consider the applicants’ contention that under the Act the compulsive investigatory power is at an end once criminal charges have been brought.  As I explained in Health Insurance Commission v Freeman (1998) 88 FCR 544 (“Freeman”) at 559 the question of the ambit and scope of a statutory investigative power is ultimately a question of construction of the relevant statute.  In the present case the relevant statute is the Act.  Under the Act the ACC is, inter alia, authorised to “investigate matters relating to federally relevant criminal activity” (s 7C(1)(c)) and to determine whether the investigation is to be a “special investigation” (s 7C(1)(d)).  Upon such a determination being made an examiner is authorised to conduct the examination for the purposes of the special investigation (s 24A) and to summon a person to appear and give evidence for the purposes of the special investigation (subss 28(1), (5) and (7)).  None of the above provisions state that a special investigation is to terminate upon the bringing of charges against any person.  Indeed, the bringing of charges is not one of the functions of the ACC under s 7A or of its Board under s 7C(1).

20                  It is not surprising that there is no suggestion in the Act that an investigation is to terminate on the bringing of charges.  The ACC’s functions relate primarily to investigating “serious and organised” criminal conduct which will usually involve a number of persons.  There is no reason why the investigation of some of those persons should not continue even if others have been charged.  Thus, there is nothing about the nature of the functions of the ACC that might be drawn upon to suggest that, by implication, an investigation is to terminate upon the bringing of charges.  The fact that the investigatory power involves investigating and reporting upon past, present and future criminal conduct is also suggestive of a legislative intention that investigations are to continue until the purpose of the investigation is achieved, irrespective of whether criminal charges are brought in relation to the matter being investigated.  Further, ss 25A(9) and (12) specifically deal with what is to occur if a person, the subject of a special investigation, has been charged with an offence.  Those subsections provide safeguards that seek to ensure that the fairness of any trial will not be prejudiced by an examination that occurred before or after the commencement of proceedings.  Plainly, the subsections are inconsistent with the applicants’ contentions that the investigatory power is at an end after charges have been brought.

21                  The above situation can be contrasted with decisions in cases concerning federal legislation which have been prepared to draw upon the separation of powers doctrine to construe a specific federal power, that has been conferred upon agencies of the executive arm of government to investigate whether a specific offence has been committed, as terminating upon the bringing of charges:  see Huddart Parker and Co Proprietary Limited v Moorehead (1909) 8 CLR 330 (“Huddart Parker”) at 379-380;  Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 (“Melbourne Steamship Co”) at 341 and 346;  and Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328 (“Brambles”) at 332-335.  Those cases are distinguishable from the present case because, unlike the investigatory power conferred under the Act, they are concerned with an investigatory power that is to be exercised for the purpose of determining whether the person being investigated should be charged with committing an offence: see for example Huddart Parker at 385;  Melbourne Steamship Co at 341;  and Brambles at 332-335.  Also, these cases are concerned with legislation that is quite different to the Act.

22                  In any event, as was explained by Southwell J in De Greenlaw v NCSC (1989) 15 ACLR 381 (“De Greenlaw”) at 384-385, the bringing of charges against a particular accused does not have the consequence of preventing the investigatory power being used against other persons suspected of being involved in the commission of the same or similar offences merely because there is a proceeding before the courts in respect of the same matter, or merely because the person summonsed may be called as a witness in that proceeding. 

23                  Cases such as Freeman at 555-559;  Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission (1982) 152 CLR 460 at 467-468, 471 and 473-475;  Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 588-589;  and Grollo v Bates (1994) 53 FCR 218 at 242-243 are concerned with the discrete, but interrelated, issue of whether the exercise of compulsive investigatory power after charge would impermissibly constitute an undue interference with the exercise of the federal judicial power.  Nonetheless, those cases do not provide any support to the applicants’ contention that the compulsive investigatory power under the Act is at an end upon charges being brought.

24                  The applicants also contend that the summonses have been issued with the intention, or for the purpose, of gathering evidence against the accused persons committed to stand trial.  It is then said to follow that the summonses are calculated to prejudice or interfere with the federal judicial power by taking advantage of procedures not available in the court in which the accused are to stand trial.  In support of that submission reliance was placed upon Hammond v The Commonwealth of Australia (1982) 152 CLR 188 (“Hammond”), Brambles Holdings and Pioneer Concrete.  The latter two cases were concerned with the exercise by the Trade Practices Commission of its compulsive investigative powers under s 155 of the Trade Practices Act 1974 (Cth) after proceedings had been commenced in respect of the matter being investigated.  In Brambles Holdings the concurrent proceeding had been commenced by the Trade Practices Commission whereas in Pioneer Concrete the concurrent proceeding had been commenced by a third party and did not involve the Trade Practices Commission.  In Pioneer Concrete Gibbs CJ, with whom Brennan J agreed, observed (at 467-468):

“The second argument submitted on behalf of the appellants is that the power given by s. 155 permits interference with pending judicial proceedings.  No doubt it is right to say that the power conferred by the section might in some cases be used so as improperly to interfere with judicial proceedings. I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court. As at present advised I would agree with the decision in Brambles Holdings Ltd. v. Trade Practices Commission [No. 2] (1980) 44 FLR 182; 32 ALR 328. However, not every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: see Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, and the authorities there discussed. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s. 155 would in the circumstances have that effect. The power is a drastic power and is capable of abuse and must be exercised with care. However it was not shown that its exercise in the present case would amount to a contempt of court.”

25                  Mason J at 474 - 475 arrived at the same conclusion:

“Here there is no reason to suppose that the Commission seeks information for other than a legitimate reason, that is, to perform its functions under the Act. The very existence of the Ro-Mix proceedings poses the question whether there has been a contravention of the Act. It is a question which the Commission has a statutory obligation to investigate. The issue of a s. 155 notice is an obvious mode of investigating the matter. There is no evidence to support an inference that the Commission in issuing the notices is concerned to assist the parties in the Ro-Mix proceedings, rather than to investigate for itself the question whether there has been a contravention of the Act. It may be that the plaintiffs in the Ro-Mix proceedings will subpoena such answers as may be given in response to the notices and tender them in evidence as admissions in those proceedings. But I cannot see how this use of the material demonstrates that the issue and service of the notices is for a purpose foreign to the Commission’s functions, is otherwise beyond power or is a contempt.”

…

Executive power including that conferred by s. 155 cannot validly be exercised so as to interfere with the exercise of the judicial power of the Commonwealth. The s. 155 power is subject to the usual unexpressed conditions which require it to be exercised in good faith, for the purposes for which it was conferred, and with due regard to those affected. It is also subject to the overriding control of the courts enabling them to ensure the proper administration of justice. It cannot be used validly to commit contempt of court. The record does not show any contempt by the Commission.”

26                  There are insurmountable difficulties confronting the applicants’ contention that the issue of the summonses or the proposed examination of the applicants constitutes an interference with the exercise of the judicial power or a contempt of court.  First, there is no evidence that the summonses or the proposed examinations are intended to interfere with the judicial power, nor is there any evidence that the summonses or the examinations are likely to have that effect.  As is clear from the terms of the summonses, they have been issued as part of a special investigation being lawfully conducted by the ACC for the purposes set out in the summonses, which are not extraneous to the exercise of the power and do not, in any event, include any purpose of giving the Director of Public Prosecutions an advantage, which the trial court cannot itself give, in the prosecution of the accused persons committed to stand trial.  As was pointed out in Pioneer Concrete at 474 and in De Greenlaw at 383-385 the fact that answers to some questions given at an examination might be sought to be adduced in evidence at the trial does not, standing alone, constitute an interference with the judicial power.  As explained above, even if some aspects of the examination touch upon the role of the persons committed to stand trial in relation to the alleged importation of heroin with which they have been charged, that will not, without more, result in an interference with the judicial power.

27                  There is a further difficulty confronting the applicants.  Subsections 25A(9) and (12) of the Act seek to ensure that an examination under the Act will not interfere with or prejudice the exercise of judicial power in relation to the persons against whom charges have been brought.  By seeking to ensure the examination will not prejudice the fairness of any pending criminal trials the provisions leave little scope for the argument that the examinations proposed in the present case have the tendency to interfere with the judicial power.  Of course, if the applicants were themselves subject to the concurrent criminal proceedings that may raise the issues considered in Hammond, but that is not the situation in the present case.

28                  Accordingly, I am not satisfied that the examinations of the applicants are intended, or have the requisite tendency, to interfere with the exercise of the federal judicial power in relation to the persons committed for trial in connection with the Pong Su.  Further, there is no extant criminal process against the applicants and there is therefore no basis for the applicants’ reliance on Hammond in relation to their examinations.

29                  The applicants also alleged that the use of the investigatory power in relation to them since their discharge is unfair, improper, illegitimate or is not being used for the purpose for which the power was conferred.  There is no factual basis for any of those allegations.  In particular, there is no basis whatsoever for the allegation that the investigatory power is proposed to be used for an ulterior purpose, or is in any other way proposed to be misused.

30                  For the above reasons the application is to be dismissed with costs.

Associate:

Dated:              7 April 2004

SCHEDULE OF APPLICANTS