Hogan v Australian Crime Commission [2005] FCA 913

Hogan v Australian Crime Commission [2005] FCA 913

The ACC Act impliedly abrogates the privilege against self-incrimination, following binding authority. The nominated legal representative may not be excluded from an examination solely based on previous representation of another witness in the same investigation; the examiner must have and consider particular facts that demonstrate a real risk to the integrity of the investigation. The exclusion of the applicant’s counsel was made by inflexible policy and without consideration of the particular merits or risks of this case, amounting to error of law and improper exercise of power.

Parties
Applicant: Ian Grant Hogan; First Respondent: Australian Crime Commission; Second Respondent: John Planta Hannaford
Jurisdiction
Australia
Judgment Date
07 July 2005
Procedural Posture
Administrative Law Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Judgment at First Instance
Outcome
Application allowed in part; direction excluding applicant's counsel set aside
Legal Topics
Privilege Against Self Incrimination, Examination Powers, Representation by Legal Adviser, Statutory Interpretation
Administrative Law Criminal Law Privilege Against Self Incrimination Examination Powers Representation by Legal Adviser Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Ian Grant Hogan

Applicant

Australian Crime Commission

First Respondent

John Planta Hannaford

Second Respondent

Procedural Posture

Administrative Law Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Judgment at First Instance

Legal Issues

  1. 1 Whether the applicant is required to answer questions under s 25A of the Australian Crime Commission Act 2002 (Cth) despite the privilege against self-incrimination
  2. 2 Whether the applicant was entitled to have his nominated legal adviser present during the examination

Ratio Decidendi

The ACC Act impliedly abrogates the privilege against self-incrimination, following binding authority. The nominated legal representative may not be excluded from an examination solely based on previous representation of another witness in the same investigation; the examiner must have and consider particular facts that demonstrate a real risk to the integrity of the investigation. The exclusion of the applicant’s counsel was made by inflexible policy and without consideration of the particular merits or risks of this case, amounting to error of law and improper exercise of power.

Court Disposition

Application allowed in part; direction excluding applicant's counsel set aside

Orders

  • The decision of the second respondent to direct that the counsel representing the applicant not be permitted to attend the examination of the applicant is set aside.
  • Liberty is given to the parties to apply for such further or consequential orders as they may be advised.