Case: CC v Australian Crime Commission [2005] FCA 754
Outcome: cited
particular question asked on 9 June 2009 to which attention was drawn in the course of submissions did not specifically focus on the events giving rise to the charge. The question, and related questions, were capable of applying to a much wider time frame. However, a full answer to those questions may have directly provided information concerning facts and matters relating to the charge. To that extent the applicant objected to answering that question. The examiner nevertheless ruled that the question must be answered in full. There was no suggestion that the widely expressed question should be taken as referring to matters other than those directly relating to the charge. Nor, in the course of submissions, did senior counsel for the ACC suggest that the question, and other questions, would or should be so confined. It was the position of the ACC that the examiner was entitled to ask, and the applicant obliged to answer, questions which directly related to the matters the subject of the charge. That may be contrasted with the attitude of the examiner in CC v Australian Crime Commission [2005] FCA 754 at [10] . The applicant seeks a declaration that the respondent by the examiner may not lawfully require the applicant to answer questions which directly relate to the matters the subject of the charge, notwithstanding that the questions so asked may be relevant to the special investigation. The issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. CC v Australian Crime Commission [2005] FCA 754 involved an application for an interlocutory injunction seeking to restrain an examination because the person being examined was the subject of two criminal charges. That application was refused. It was not an application to restrain the examination limited to questions directly relating to the two criminal charges, but to restrain the examination itself whilst those charges were outstanding. Alternatively, it was an application to restrain the examination until the person being examined had access to the prosecution brief in relation to one of the charges, so that he could exercise his privilege against self-incrimination effectively (to the extent that it is not abrogated by s 30 of the ACC Act). As was noted at [10] in that case, there was an undertaking from the examiner that the person being examined would not be questioned on matters directly relating to either of the criminal charges. In addition, steps were proposed to be taken to inhibit or prevent access to any information obtained (that is, information not directly relating to the outstanding criminal charges) from the prosecuting authorities. In those circumstances, the application for interlocutory injunctive relief, which would have prevented incidentally the examination in its entirety, was refused. I do not consider that decision advances the position of the ACC in this matter. I have come to the view that there is, in the present circumstances, a real risk that questioning the applicant on matters directly relating to the charge may interfere with the administration of justice. There are two routes by which information arising from the examination, which is information directly relevant to the charge, may be made available to the prosecuting authorities. The first is by report of the CEO pursuant to s 12(1) of the ACC Act. It is unclear, and probably inappropriate for the Court to know, whether the special investigation involves examination of persons other than the applicant. Whilst it may be assumed that the applicant will claim pursuant to s 30(4)(c) that answers in response to questions directly relevant to the charge might tend to incriminate him, so that his own answers would not be admissible in relation to the charge, other evidence procured during the investigation may be admissible and be conveyed to the prosecuting authority pursuant to s 12(1). However, that is not the limit of the information flow to the prosecuting authorities. That is a provision which directs the CEO specifically to refer certain material to a relevant law enforcement agency or prosecuting authority. In conjunction with that power, the results of the special investigation, including the particular examination and other examinations, are assembled for the ACC to fulfil its functions. They include in ss 7A(a), (d) and (e) the following: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; ... (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. The Board of the ACC established under s 7B of the Act includes the head of the police force of each State. Ultimately, federally relevant criminal activity is to be investigated and considered by the Board not for its own sake, but for the sake of identifying such conduct and determining how it is to be combated, including under s 7C(1)(g) by the dissemination of law enforcement agencies' strategic criminal intelligence assessments. The secrecy provision in s 51 of the ACC Act operates upon each member of the Board and each member of the staff of the ACC "except for the purposes of a relevant Act or otherwise in connection with the performance of his or her duties under a relevant Act": see s 50(1)(ii). A member of the staff of the ACC is widely defined in s 4(1). A "relevant Act" is defined in s 51(4) to include a law of a State under which the ACC performs a duty or function or exercises a power in accordance with s 55A. It relevantly includes the ACC investigating a matter relating to a relevant criminal activity included in, or part of, serious and organised crime. It is apparent from the position taken by the examiner in this matter, namely a determination to pursue questions directly related to the charge, and to pursue those questions from the applicant who is the person charged, that the inquiry includes the subject of the charge. More widely, in other matters, as noted, the ACC through an examiner sometimes has indicated that it does not propose to ask questions of a person charged with a criminal offence which are directly relevant to that offence. Sometimes an undertaking not to do so has been proffered. Such indications or undertakings recognise that information obtained during an examination, if relevant to an existing criminal prosecution, may otherwise find its way to the prosecuting authorities.