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Australian Crimes Commission - Offence To Disclose Summons

What the law says

Section 30 of the Australian Crime Commission Act, Commonwealth states:

  1. A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
    • (a) fail to attend as required by the summons; or
    • (b) fail to attend from day to day unless excused, or released from further attendance, by the examiner .
  2. A person appearing as a witness at an examination before an examiner shall not:
    • (a) when required pursuant to section 28 either to take an oath or make an affirmation--refuse or fail to comply with the requirement;
    • (b) refuse or fail to answer a question that he or she is required to answer by the examiner ; or
    • (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
  3. (3) Where:
    • (a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner ; and
    • (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner ;
      the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner , give the examiner the name and address of the person to whom or by whom the communication was made.

...

9. Subsection (3) does not affect the law relating to legal professional privilege.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:

  1. You were summonsed to appear at an examination before an examiner; AND
  2. You:
    • (a) Failed to attend as required by the summons; OR
    • (b) Failed to attend on a day without being excused or released by the examiner; OR
    • (c) Refused or failed to take an oath or affirmation; OR
    • (d) Refused or failed to answer a question required; OR
    • (e) Refused or failed to produce a document required; OR
    • (f) Are a solicitor and refused or failed to give the name and address of a person when required.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

Maximum penalty -

(a) If you are the person that was summonsed and you failed to attend under section 30(1) - 200 penalty units or 5 years imprisonment;

(b) If you are a person that was summonsed and you failed to take an oath, answer a question or produce a document under section 30(2) - 200 penalty units or 5 years imprisonment;

(c) If you are a legal practitioner that was summonsed and you failed to give the name and address of a person under section 30(3) - 200 penalty units or 5 years imprisonment.

Penalty unit = $100.00

Which court will hear the matter

This is an indictable offence. As a general rule, indictable offences of this nature must be heard in the District Court, however it may heard summarily in the Magistrates Court by virtue of section 30(7) of the Australian Crime Commission Act, Commonwealth.

Possible defences

Possible defences to an offence against either subsection (1), (2) or (3) include but are not limited to:

  1. You were not summonsed to appear at an examination before an examiner.
  2. You did not in fact fail to attend as required by the summons.
  3. You in fact had the excusal of the examiner.
  4. You were in fact released by the examiner.
  5. You are a solicitor and the information was subject to legal professional privilege.
  6. You honestly and reasonably could not answer the question as you did not know the answer or could not remember the answer.
  7. You honestly and reasonably could not produce the document (i.e as you did not have the document in your possession, could not access the document or a copy of the document, and this is not by some fault of your own).
  8. Duress - example: there was a threat of harm to the accused or another person that the accused reasonably believe would be carried out if he/she did not fail or refuse to comply with the summons.
  9. Insanity.
  10. Identification i.e. the accused was not the discloser.
 

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