FEDERAL COURT OF AUSTRALIA

CC v Australian Crime Commission [2005] FCA 754

CC v AUSTRALIAN CRIME COMMISSION

SAD.111 OF 2005

MANSFIELD J

2 JUNE 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for interlocutory injunctive relief is refused.

2.                  The application is adjourned for directions to 9 am on 29 June 2005.

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

REASONS FOR DECISION

1                     This is an application for an urgent interlocutory injunction to restrain the Australian Crime Commission (the ACC) from continuing to conduct an examination of the applicant under the Australian Crime Commission Act (2002) (Cth) (the ACC Act).  The examination presently sought to be restrained commenced on 31 May and 1 June 2005, and has been adjourned pending the hearing and determination of this application.

2                     The applicant is presently the subject of two criminal charges.  On 15 April 2004 he was charged with unlawful possession of a sum of cash.  A South Australian police officer, also a member of the staff of the ACC, was the arresting officer and is the complainant.  That matter is still before the court.  On 21 March 2005 the applicant and another person were charged with taking part in the sale of cannabis, money laundering and avoiding reportable cash transactions in respect of conduct alleged to have taken place between 26 April 2004 and 10 May 2004.  The same officer of the South Australia Police Force is the informant/complainant in respect of that charge.  It also is unresolved.

3                     Subsequent to the charges, on 4 April 2005, a summons was issued to the applicant to attend before the ACC to give evidence at an examination on 11 April 2005.  He attended.  He was examined.  It appears that in the course of that examination, and whilst answering questions generally about his financial situation and his income and assets, including about loans available to him, he revealed some information relevant to the charge brought on 15 April 2004.

4                     On 11 May 2005, the applicant was served with a further notice requiring him to attend on 31 May 2005 for further examination by the ACC.  It is that examination which is the subject of the present application.  On 31 May 2005, the applicant attended with counsel and sought an adjournment of the examination on the basis there was a danger that the examination would canvass matters which were the subject of the two outstanding charges.  That adjournment was refused.  The examination was to continue on 1 June 2005.  The applicant attended on 1 June 2005 and renewed his application for an adjournment on the same grounds.  It was again refused.  It was then adjourned to enable the present urgent application to be made.

5                     Counsel appearing pro bono for the applicant has urged that the interlocutory injunction should be granted on the basis that there is a significant risk, in the course of the continuing examination, that the applicant will be exposed to questions about, and will provide information relevant to, one or other of the two criminal charges.  It was contended that the applicant will not know whether to claim privilege against self-incrimination, because he has very limited information about the second criminal charge of 21 March 2005.  Counsel contended that he should not be obliged to attend the examination until he has, in effect, the prosecution brief in respect of the hearing of the charge of 21 March 2005, that is a brief containing all statements of evidence and all exhibits which are proposed to be adduced at the hearing of that charge.  It was submitted that only with that knowledge could the applicant make an informed exercise of his privilege against self-incrimination.  It was also submitted that the applicant is impecunious and presently cannot afford legal representation, and that the injunction should run not only for such time as he secured the prosecution brief, but also until he was able to afford and secure legal representation to assist him in determining when he should exercise the privilege against self-incrimination in the course of the examination.

6                     The examination being conducted by the respondent is pursuant to its coercive powers under the ACC Act.  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.  They are referred to in Watt v Australian Crime Commission [2004] FCA 1669 at [12].  Section 30 of the ACC Act addresses the extent to which evidence given in that coercive situation may be utilised in other proceedings.  It is described as ‘use immunity’.  For present purposes it is sufficient to note simply that if a person being examined claims that a particular answer, or the production of a particular document, might tend to incriminate that person or make that person liable to a penalty, the use immunity provision is activated:  see s 30(4)(c).

7                     Section 30(5) then provides where use immunity can operate.  It prevents the answer or document which attracts use immunity from being admissible in evidence in a criminal proceeding or in a proceeding for the imposition of a penalty except in two particular circumstances, neither of which is a matter of direct concern to the applicant at the present time. 

8                     Counsel for the ACC has accepted that the applicant has already claimed that his answers in the examination and the production of documents in the examination might tend to incriminate him or make him liable to a penalty, and that his ‘blanket’ claim of privilege against self-incrimination activates the use immunity provisions of the ACC Act.  Consequently any evidence given in the examination is not admissible in a criminal proceeding in any event, and is not admissible in particular on the hearing of the two extant criminal charges.

9                     There is a qualifying proposition to that apparently clear situation which has been argued in certain cases, and which was discussed at a little length by Carr J in Mansfield v Australian Crime Commission (2003) 132 FCR 251 at 262-264.  The proposition is 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 the questions which might constitute an interference with the administration of the course of justice, in particular in existing proceedings.  Whether that proposition is correct has not finally and authoritatively been resolved, although in my view for the reasons discussed in Watt at [27], there is reason to think that the proposition is not maintainable.

10                  In any event, on the present application counsel conducting the examination has undertaken that the applicant will not be questioned during the examination on matters directly relating to either of the criminal charges.  I have been assured that there is a much more extensive range of matters to be addressed.  There is no real basis in the circumstances for thinking that the applicant will be questioned in the examination on matters directly relating to either of the criminal charges.  If that circumstance arises, the applicant may wish to renew the present application.

11                  There is a further reason why the balance of convenience would not support the grant of the injunction sought, even if the applicant were questioned generally, and assuming both an arguable entitlement not to answer questions directly relating to the two criminal charges (because that may interfere with the administration of the course of justice) and that he accidentally exposed information about them.  Apart from the capacity of a court to exclude evidence which has been improperly procured pursuant to coercive powers or by operation of s 30(5) of the ACC Act, as counsel appearing for the applicant said, the court may exercise its more general powers if the conduct of the examination in some way involved an abuse of process.  I am not to be taken as indicating one way or the other as to whether there is any foundation in the submission.  But I do place weight upon the fact that, if an abuse of power or process by the authorities is demonstrated in the course of an investigation, the court before whom the charges are brought might exercise its power to dismiss the charges for that reason.

12                  The applicant therefore has both the direct protection of s 30(5) of the ACC Act and the more general powers of a court to protect him from the adverse consequences of any accidental or incidental exposure of information directly relevant to the two criminal charges if the examination proceeds.

13                  I am further assured, and I accept, that counsel conducting the examination before the ACC Examiner will seek an order that the police officer who is the informant in the two criminal charges not be permitted to attend the hearing of the examination (except on a specific topic which is clearly unrelated to the two criminal charges) and that an order will also be sought from the ACC Examiner that that police officer not have access to the transcript of the examination and that the transcript of the examination not be made available to prosecuting authorities before the completion and final determination of the two criminal charges.  That provides a further protection to the applicant, even assuming in his favour the proposition that, despite the abrogation of the privilege against self-incrimination by s 30 of the ACC Act, 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 respect of particular existing proceedings.

14                  I have also taken into account the terms of the order which is sought.  It is open-ended in time and cannot be addressed by the ACC.  It is in the hands of the prosecuting authorities as to the progress of the criminal charges, including the completion of the brief.  It is in the hands of the applicant as to the extent to which, if at all, he is able to and does procure legal advice.  The effect of the order as sought would be an indefinite and prolonged adjournment of the examination.

15                  It would potentially and indefinitely stall the examination which, on the material before me, relates and is intended to relate to matters other than the two criminal proceedings.  The public interest in those circumstances would not point to an injunction in the terms sought, which may preclude the ACC from pursuing its investigation into matters unrelated to the two criminal charges or very substantially delay it.  For those reasons I propose to refuse the injunction which is sought.  I do not think the applicant has made out a serious question to be tried in the particular circumstances, and the balance of convenience also in the particular circumstances lies in favour of refusing the order sought.

Associate:

Dated:              15 June 2005