X7 v Australian Crime Commission

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan J.,Hayne,Bell JJ.,Kiefel J.
• Judgment Date: 26 June 2013
• Neutral Citation: 2013-0626 HCA A,[2013] HCA 29
• Docket Number: S100/2012
• Date: 26 June 2013
• Court: High Court

[2013] HCA 29

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Bell JJ

S100/2012

X7

Plaintiff

and

Australian Crime Commission & Anor

Defendants

Representation

G D Wendler with A S G Cassels for the plaintiff (instructed John D Weller & Associates)

S P Donaghue SC with M J O'Meara for the defendants (instructed by Australian Government Solicitor)

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales with C L Lenehan for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with I A Repper for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Australian Crime Commission Act 2002 (Cth), ss 7A, 7C, Pt II Div 2.

X7 v Australian Crime Commission

Statutes — Interpretation — Plaintiff charged with three indictable Commonwealth offences — Plaintiff served with summons to attend examination by examiner appointed under Australian Crime Commission Act 2002 (Cth) (‘Act’) — Examiner asked plaintiff questions about subject matter of charged offences — Whether Act empowered examiner to conduct examination of person charged with indictable Commonwealth offence where examination concerned offence charged.

Words and phrases — ‘accusatorial process of criminal justice’, ‘examination’, ‘prejudice the fair trial of a person who has been, or may be, charged with an offence’, ‘principle of legality’, ‘privilege against self-incrimination’, ‘right to silence’, ‘trial according to law’.

ORDER

The questions asked in the Case Stated dated 23 August 2012 be answered as follows:

1. Does Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’) empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?

Answer: The ACC Act does not authorise an examiner appointed under s 46B(1) of the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence.

2. If the answer to Question 1 is ‘Yes’, is Div 2 of Pt II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?

Answer: This question does not arise.

1 French CJ and Crennan J. On 23 November 2010, the plaintiff, X7, was arrested by officers of the Australian Federal Police, charged with three indictable offences 1 and taken into custody. The offences, alleged to have been committed in New South Wales, are conspiracy to traffic in a commercial quantity of a controlled drug 2, conspiracy to import a commercial quantity of a border controlled drug 3, and conspiracy to deal with money that is the proceeds of crime 4. If convicted, the plaintiff will be liable to a term of imprisonment. Whilst in custody, the plaintiff was served with a summons to appear, and give evidence, before an examiner of the first defendant, the Australian Crime Commission (‘the ACC’).

2 Established by s 7 of the Australian Crime Commission Act 200(Cth) (‘the ACC Act’) 5, the ACC has functions which include the collection of criminal information and intelligence, and the investigation of federally relevant criminal activity in relation to ‘serious and organised crime’ 6. Serious and organised crime covers offences which involve two or more offenders, substantial planning and organisation, and the use of sophisticated methods and techniques 7. Division of Pt II of the ACC Act (ss 24A to 36) (‘the examination provisions’) provides for examiners appointed under the ACC Act to conduct compulsory examinations for the purposes of operations or investigations which

are designated by the Board of the ACC as ‘special’ operations or investigations 8.

3 In response to the summons, the plaintiff attended a compulsory examination before an ACC examiner at which he was asked, and answered, questions relating to the subject matter of the offences with which he had been earlier charged. When the examination resumed the next day, the plaintiff declined to answer questions concerning the subject matter of the charges when he was directed by the examiner to do so. The examiner informed the plaintiff that he would, in due course, be charged with the offence of failing to answer questions 9.

4 The plaintiff subsequently commenced proceedings in the original jurisdiction of this Court. The plaintiff seeks declarations that, to the extent that Div 2 of Pt II of the ACC Act permits the compulsory examination of a person charged with an indictable Commonwealth offence, the relevant provisions are beyond the power of the Commonwealth Parliament; or that any such examination constitutes an impermissible interference with what was said to be his constitutional right to a fair trial under Ch III (including s 80) of the Constitution. The plaintiff also seeks injunctive relief against the ACC and its officers and examiners restraining further compulsory examination in respect of matters the subject of the offences with which he has been charged. Finally, the plaintiff seeks an order preventing the ACC and its officers and examiners from preserving any record of his examination.

5 On 23 August 2012, the parties agreed to state a case for the consideration of the Full Court, which included the following two questions of law:

• ‘1. Does Division 2 of Part II of the ACC Act empower an examiner appointed under section 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?

• 2. If the answer to Question 1 is “Yes”, is Division 2 of Part II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?’

6 The questions were stated on the basis that the plaintiff's case did not involve any challenge to the sufficiency of the instrument authorising the relevant ‘special ACC investigation’ 10. Furthermore, the expression ‘subject matter of the offence’ in question 1 was treated as including examination on the circumstances of the offence with which a person has been charged, which questions could establish that the person has committed a crime, or disclose defences upon which that person might rely at trial.

7 These reasons will demonstrate that question 1 must be answered ‘Yes’ and that question 2 should be answered ‘No’.

The facts and the legislative scheme

8 The ACC Act contains provisions which govern the sharing by the ACC of specific information with other government officers and agencies, both federal and State. Where, in carrying out its functions, the ACC obtains admissible evidence of an offence, whether Commonwealth, State or Territory, the CEO must assemble the evidence and give it to the relevant law enforcement or prosecutorial agency 11. In appropriate circumstances, the CEO may also furnish information in its possession to other nominated persons, agencies or bodies 12. At the conclusion of an examination, the examiner must give the head of the special ACC investigation a record of the examination and any documents or other things given to the examiner 13.

9 As required by the ACC Act, the plaintiff attended before an ACC examiner 14, in response to the summons issued under s 28 in connection with the relevant special ACC investigation 15.

10 Under the ACC Act, a person appearing at an examination is not permitted to refuse or fail to answer a question, or to produce a document or other thing, which is required by the examiner 16. However, by reason of the combined operation of ss 30(4) and 30(5), where a person gives an answer or produces a document or thing, that answer or that document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty 17, provided that before answering the question or producing the document or thing, the person claims 18 that the answer, document or thing might tend to incriminate him or her or make him or her liable to a penalty. A prohibition of that kind on direct use is sometimes called a ‘direct use immunity’ or, more usually, a ‘use immunity’.

11 Section 25A, which is critical to the resolution of this stated case, governs the conduct of an examination, and the manner in which, and the persons to whom, publication of evidence and information obtained may be made. Section 25A relevantly provides:

‘(3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

…

(9) 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...