Case: Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416 ; (1999) 168 ALR 211
Outcome: referred to
No criminal proceeding has been commenced against either applicant arising out of Operation Wickenby. It was, therefore, necessary for an "investigation relating to a criminal matter" to be underway before a valid request for assistance of the Swiss authorities could be made under s 14 of the Mutual Assistance Act. The word "investigation" is not defined in the Act. Section 3 does, however, define a "criminal investigation" to mean "an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed)." The use of the phrase "investigation relating to a criminal matter" in s 14(1) comprehends a wider range of activities than those falling within the defined concept of a "criminal investigation". An investigation "relating to" a criminal matter has the potential to apply to a far broader range of activities: cf Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416 ; (1999) 168 ALR 211 at 224-225 and the cases there referred to. It is not necessary, for present purposes, to determine the extent of the differences. This is because the evidence clearly establishes that the mutual assistance request was made to assist in the conduct of a criminal investigation known as Operation Wickenby. The evidence was given by Mr Outram, the ACC Executive Director, Operational Strategies. He deposed (and I accept) that Operation Wickenby began as a result of information contained in documentary material obtained after the execution of a search warrant in February 2004 on a hotel room occupied by Mr Phillip Egglishaw. That material suggested that a significant number of Australians had committed criminal offences involving taxation fraud. From July 2004 the ACC and the Australian Taxation Office ("the ATO") examined the material to determine which matters should be the subject of criminal investigation by the ACC and which matters should be the subject of civil investigation by the ATO. The ensuing criminal investigation conducted by the ACC was known as "Operation Wickenby". The civil investigations conducted by the ATO did not form part of Operation Wickenby. Operation Wickenby was conducted by the ACC pursuant to the Australia Crime Commission Authorisation and Determination (Money Laundering and Tax Fraud) Determination 2003. It involved the investigation of whether certain individuals had committed offences against Commonwealth criminal laws. Operation Wickenby is to be distinguished from Project Wickenby which was the title assigned to the separate investigations being overseen by the ATO. 39 Even if it be assumed that Article 1 of the Treaty imposes a positive obligation on Requesting States to identify with precision the offences to which the relevant investigation relates, there is no substance in the applicants' complaint that the request did not allege the commission of particular offences against Australian law. The request did contain references to a number of offences against Australian criminal law which it was alleged Mr Dunn had committed. The Treaty does not require the Requesting State to provide evidence that particular offences against its laws have been committed. As already noted, all that is required is that there be in existence a bona fide investigation which is designed to determine whether or not such offences have been committed. 40 The power to make an application for assistance which is conferred by s 14 of the Mutual Assistance Act is conditioned on there being "reasonable grounds to believe that a thing relevant to the ... investigation may be located in a foreign country." The request for mutual assistance which was sent to the Swiss authorities under cover of Ms Gibbins' 17 March 2005 letter, contained a good deal of information which suggested that material relevant to the investigation might be found in Switzerland. This information was largely derived from documents found on the personal computer of Mr Phillip Egglishaw and from responses by him to questions asked during a hearing conducted by the ACC. Strachans SA was based in Geneva. Mr Egglishaw was one of the principals of Strachans SA. He resides in Geneva. The Swiss Central Office was advised that "Australian authorities are investigating a number of Australian residents for using companies, trusts and bank accounts administered by Strachans S.A., an accounting services firm in Switzerland, to disguise their involvement in tax fraud schemes and money laundering" (paragraph 7). The Swiss authorities were also advised that the ACC believed that services provided by Strachans SA enabled Australian residents to obtain access to their funds "from anywhere in the world by the use of debit or credit cards linked to bank accounts opened and operated for them by Strachans outside Australia, including at Corner Banca, SA in Lugarno, Switzerland" (paragraph 9(c)).