Annual Report - COMPLETE - Australian Crime Commission

The purpose of referring that matter for further consideration by the Examiner was
not necessarily to preclude the applicant being required to answer such questions,
but to ensure that the applicant’s rights to legal professional privilege were protected
and also to ensure that there was no interference with the administration of justice
in the confiscation proceedings. The Court granted the applicant liberty to apply on
short notice to the Federal Court if the continued examination resulted in questions
which breached those rights (Mansfield v Australian Crime Commission [2003] FCA
1059 (3 October 2003)).
In the second matter a person summonsed to appear at an ACC examination
submitted that he was not required to answer the examiner’s questions. He argued
that there has only been a partial abrogation of the privilege against self-incrimination,
and that derivative use immunity is not expressly removed by section 30 of the
ACC Act. He also argued that the power of the ACC to examine a class of people
should be read down so that a person about to be charged with an offence cannot
be examined. This is an extension of Hammond v The Commonwealth ((1982) 152
CLR 188). The applicant had also foreshadowed argument on constitutional grounds
but did not proceed with this argument.
This matter was heard by Weinberg J. in the Federal Court who dismissed the
application. The ACC was successful on all grounds (A. v. Boulton [2004] FCA 56
(6 February 2004)).
This is an important decision in support of the ACC’s coercive powers. In particular,
Weinberg J. confirmed that the ACC Act, by necessary implication, abrogates
the privilege against self-incrimination. The judgment affirmed the ACC’s power
to examine a person who has not yet been charged with any criminal offence.
The judgment also confirmed that there is no prohibition in the ACC Act upon the
admissibility of derivative evidence obtained in an examination.
The applicant subsequently appealed to the Full Federal Court. This appeal was
dismissed (A v Boulton [2004] FCAFC 101 (30 June 2004)).
Another matter challenging the ACC’s powers to compulsorily examine witness was
also heard in the Federal Court. The ACC had summonsed 27 crew members of the
North Korean freighter Pong Su to ACC examinations. The ACC was assisting the
AFP’s investigation of the importation of 125 kgs of heroin, allegedly via the Pong Su.
The 27 crew members had been discharged at committal in relation to this importation
but three crew members and four other people were committed for trial. The ACC
obtained passport surrender orders in respect of the 27 crew members to prevent
them from leaving Australia until such time as they attended ACC examinations. This
was the subject of argument and a final decision by Marshall J. in the Federal Court
made in favour of the ACC.
ACC ANNUAL REPORT 2003–04 I 73
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OUTPUT 1.3: INVESTIGATIONS INTO FEDERALLY RELEVANT CRIMINAL ACTIVITY