Annual Report - COMPLETE - Australian Crime Commission

When the ACC attempted to commence the examinations legal representatives for the
crew issued proceedings in the Federal Court challenging the ACC’s examinations.
The applicants contended that the compulsive investigatory power conferred on the
ACC under the ACC Act could not be used to gather evidence if there is a concurrent
criminal proceeding. The applicants argued that the compulsive investigatory power
therefore terminated upon the bringing of charges or, in the alternative, the power
was proposed to be exercised in a manner that was calculated to interfere with the
exercise of the judicial power in the criminal proceeding. In addition, the applicants
argued that the examinations were for an improper purpose, namely to assist the
conduct of the criminal proceeding.
This was fully argued before Merkel J. in the Federal Court. Merkel J. dismissed
the challenge by the crew members, clearing the way for ACC examinations
to be conducted (Hak Song Ra v Australian Crime Commission [2004] FCA 416
(8 April 2004)).
A long running civil matter against the ACC and others was finalised in July 2003. A
person had instituted civil proceedings against a former Victoria Police officer who
had been seconded to the NCA and a Victoria Police fingerprint expert. The applicant
claimed that the defendants had fabricated evidence against him and undertaken a
malicious prosecution in 1987 when he was tried and convicted on offences relating
to drugs, explosives and firearms. The applicant contended that the Commonwealth
was vicariously liable for the actions of the seconded officer and that the State of
Victoria was vicariously liable for the actions of the fingerprint expert.
The matter was heard before Nettle J. over 29 days in the Victorian Supreme
Court. In his judgment Nettle J. said he had not seen any evidence capable of
establishing the allegations of conspiracy and that the nature of the allegations made
them utterly improbable. He said the allegations were baseless and dismissed
the plaintiff’s claim.
An ex-NCA staff member commenced an action against the NCA claiming she had
been discriminated against on the basis of her family responsibilities. In September
2003 the Federal Magistrates Court found that the NCA had unlawfully discriminated
against the applicant contrary to sections 14(2) and 14(3A) of the Sex Discrimination
Act 1984 (Cwlth). The applicant was awarded the sum of $54,488 in damages for
wage loss, non-economic loss, and special damages.
The ACC appealed the decision to the Federal Court and achieved partial success
on the appeal. In May 2004, the Court overturned the initial finding that the ACC had
unlawfully discriminated against Ms Evans on the ground of her sex. However, the
Court rejected the ACC’s assertion that there was no evidence before the Federal
Magistrate that the respondent was treated less favourably than a staff member
without family responsibilities who took personal leave within his or her entitlement.
The sum of $54,488.57 was reduced to $40,579.98.
74 I ACC ANNUAL REPORT 2003–04