A3 v Australian Crime Commission [2006] FCA 894

FEDERAL COURT OF AUSTRALIA

A3 v Australian Crime Commission [2006] FCA 894 A3 v AUSTRALIAN CRIME COMMISSION & ANOR NSD373 OF 2006 EMMETT J 10 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD373 OF 2006

BETWEEN: A3

FIRST APPLICANT

P

SECOND APPLICANT

AND: AUSTRALIAN CRIME COMMISSION

FIRST RESPONDENT

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 10 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The first respondent seeks to read an affidavit of Mr Ian MacDonald Andrew, sworn 5 May 2006, on the basis that I make an order that that affidavit not be disclosed to any person or party other than the respondents and their legal representatives in this proceeding and an order that publication of that affidavit and any of its contents be prohibited. The applicant objects to the affidavit being read at all and also objects to its being admitted on the basis that I make the orders that I have outlined. 2 The issue in this proceeding is whether certain documents evidencing communications between unnamed persons are the subject of legal professional privilege, such that their contents should be kept confidential. The documents were produced to the first respondent, the Australian Crime Commission ('the Commission'), in response to a notice requiring production of the documents. 3 On 15 May 2003, pursuant to s 7C of the Australian Crime Commission Act 2002 (Cth) ('the Act'), the Board of the Commission authorised the Money Laundering and Tax Fraud Determination. That instrument authorised the Commission to conduct a special investigation in respect of certain kinds of federally relevant criminal activity, as defined in s 4 of the Act, including money laundering, tax fraud and related criminal enterprises. The duration of the investigation has been extended until 30 June 2006. 4 Pursuant to the Money Laundering and Tax Fraud Determination, the Commission is currently conducting a special investigation, code-named 'Operation Wickenby'. Operation Wickenby is an investigation of national and international significance into allegations of tax fraud and money laundering. 5 Subsequent to the execution of search warrants at the first applicant's home and business premises, pursuant to s 29 of the Act, an examiner of the Commission issued a notice to produce requiring production of certain materials. That notice bears the date 22 September 2005. In pursuance of that notice, numbers of documents were produced, including the documents in respect of which the applicant claims a determination that the documents are the subject of legal professional privilege. 6 There are in excess of 40 documents involved. The documents involved have been tendered by the applicant but an order has been made, at the instigation of the applicant and not opposed by the respondents, that access to those documents be limited to counsel and solicitors for the applicant. 7 The respondents dispute the claim to privilege on several grounds, one of which is that the communications evidenced by the documents in question were made in the furtherance of a crime, or fraud, or other impropriety, such that they are not privileged. The affidavit of Mr Andrew is said to establish that there are reasonable grounds for believing that the communications in question were made in the furtherance of a crime, or fraud, or other impropriety. 8 Mr Andrew has said in a further affidavit, also sworn on 5 May 2006, that the Commission is currently conducting Operation Wickenby and that the investigation relates to suspected taxation fraud and money laundering by Australian residents who have used the services provided by Strachans SA, an accounting firm located in Switzerland. Strachans is alleged to be involved in promoting tax fraud and money laundering schemes internationally and within Australia. Due to the complexity and breadth of the ongoing investigations, it is expected that Operation Wickenby will continue for a number of years. 9 To date, no criminal charges have been laid. However, the special investigation has identified the revenue at risk to the Australian Government to be in the vicinity of $300,000 million. Disclosure of the information contained in the affidavit now in question would have a prejudicial effect on the ongoing criminal investigations into the applicant and disclosure of that information would reveal police investigation methodology. 10 Mr Andrew says that the affidavit in question sets out background to, and the current status of, Operation Wickenby, information about the first applicant and current investigation into the first applicant's activities, details about various schemes in which the first applicant is said to be involved that are the subject of criminal investigation and details of how the documents in question have been handled by the Commission during the course of the investigation. 11 Disclosure of the information contained in the affidavit may prejudice the ongoing investigations by revealing the current status and focus of the criminal investigation. Mr Andrew says that, on the basis of his experience in law enforcement, that could have the following outcomes: (1) Preparation by the first applicant for the specific matters the subject of the proposed examination; (2) Collusion between witnesses, potential witnesses and other persons of interest as to the evidence to be given before the examiner; (3) The destruction or fabrication of evidence including the divesting of assets and affording the opportunity to alert other persons to the current status and focus of the investigation.