Seven West Media submits that the following amendments be considered to the Proceeds
of Crime Act or similar legislation where powers normally associated with criminal
investigations are used in non-criminal matters.
1. Literary proceeds are clearly distinguished from other proceeds of crime in the PoCA.
2. The AFP is no longer involved in applications under sections 202 and 225 of the PoCA.
3. The threshold test of obtaining production orders and search warrants should be
raised to require that more than a “reasonable suspicion” regarding the existence
of documents evidencing literary proceeds be required before such orders or
warrants are issued. Threshold tests similar to Anton Piller (civil search) orders
should be adopted in civil matters under the PoCA.
4. The likely effect on and inconvenience to third parties, especially media
organisations, should specifically be taken into account before issuing such orders
and warrants.
5. Consideration be given to whether alternate means of collecting evidentiary
material from media organisations and similar third parties, such as the Federal
Court preliminary discovery procedure.
6. Search warrants must be carefully drafted so that they relate only to specific
categories of documents, within a specific time period, which the available
evidence suggests with a degree of certainty may exist.
7. An opportunity be given to the occupier of any premises being searched to perform
the relevant searches, especially of material stored on computers, and provide
those to the AFP, together, if necessary with an undertaking that no documents
will be destroyed.
8. Public interest factors, such as those contained in s154 of the PoCA, be taken into
account before a court will issue a production order or a search warrant under
s202 or s225 of the POCA.
9. Privilege claims may be made over legally privileged material with the owners
shifting to the AFP to disprove any privilege claims.
10. The obligation to produce documents in response to a production order or the
powers of the AFP to seize documents pursuant to a search warrant be made
subject to section 126 (h) of the Evidence Act 1995 (Cth).
11. The Serious and Organised Crime Portfolio no longer be involved in undertaking
search and related functions in relation to literary proceeds orders.
12. Protocols for protection of confidential material and journalists sources should be
implemented.
ATTACHMENT 1
Detailed Chronology of Events
10 February
Schapelle Corby is released from prison in Bali.
There followed several incorrect media reports that Seven had secured an
exclusive interview with Ms Corby for which it would pay millions of dollars.
At no stage is Seven contacted by the AFP to inquire about those reports.
11 February
On the basis of the reports of a rumoured deal, the AFP approached a
Local Court Magistrate on 11 February 2014 who issued a Production
Order under Section 202 of the PoCA.
The time for responding to the Production Order was abridged from the
usual 14 days to less than three business days, with the documents
returnable to the AFP by 4pm on 14 February 2014.
14 February,
12.30pm
Seven’s solicitor, Justine Munsie, telephones Agent Jeff Kokles at the AFP
to seek clarification of the documents sought in the order, especially on the
basis that the categories were unlimited as to time and some were
ambiguous in their terms.
Agent Kokles asks Ms Munsie to put her requests in writing which she did
at 12.42pm.
Agent Kokles responds by email at 1.52pm. Requires production of
documents dating back two years by 4pm and other documents up to ten
years old by 25 February 2014.
14 February,
3.50pm
Justine Munsie personally attends the AFP in Goulburn Street to produce
documents in response to the Production Order.
Ms Munsie spends approximately 10-15 minutes explaining to Agent
Kokles and two of his colleagues what documents Seven has located in
the time available and what other types of documents, especially historical
documents, Seven believes it may have but for which it is still searching.
Ms Munsie informed the AFP that:
(a) it had produced documents in relation to an agreement between
Seven Network’s Sunday Night program and Mercedes Corby for
an exclusive television interview (Sunday Night agreement);
(b) it had produced documents relating to a recent agreement
between New Idea magazine and Mercedes Corby dated 24
January 2014 for an exclusive interview with New Idea in return
for payment, but it had not yet found documents which evidenced
the payment having been made (New Idea agreement);
(c) it had located a number of other agreements between Pacific
Magazines and members of the Corby family as well as unrelated
third parties in relation to articles about Schapelle Corby which
had appeared in Pacific Magazine’s publications since the time of
Schapelle Corby’s arrest in 2005. Ms Munsie noted that the
agreements with third parties could not give rise to any issue in
relation to proceeds of crime and asked whether the AFP had
intended the Production Order to capture such documents; and
(d) Pacific Magazines was likely to have other documents going
back several years, which evidenced payments to people who
had provided photos of Schapelle Corby or her family since the
time of her arrest in 2005. Ms Munsie asked the AFP agents if it
was intended that those documents be produced pursuant to the
Production Order, particularly where the documents related to
payments to third parties, such as paparazzi, and therefore did
not evidence any payment to Schapelle Corby.
The AFP told Ms Munsie that it was not able to answer her
questions at that time.
17 February,
11.30am
AFP Officers attend the premises of Addisons to serve Ms Munsie with a
letter. As Ms Munsie is working from her home that day and the AFP insist
that the letter be served personally, Ms Munsie invites the officers to her
home to hand her the letter.
Three AFP officers arrive at Ms Munsie’s home shortly before midday and
hand her a letter signed by Det Superintendent Stephen Dametto, Serious
& Organised Crime.
The letter alleged that Seven West Media had not complied with the
Production Order and extended the time for compliance to the close of
business that day, in particular to provide:
- - Documents relating to funds payable under the Sunday Night agreement; and
- - Documents evidencing payment to Mercedes Corby under the New Idea agreement.
4.24pm
Letter from Addisons to Det Superintendent Stephen Dametto informing
the AFP that:
- - It was still searching for documents in relation to the New Idea payment;
- - There were no funds payable under the Sunday Night agreement and therefore no such documents could be produced;
- - It was continuing to search for documents as it had indicated previously and repeated its earlier requests for clarification over the extent of the Production Orders.
17 February,
5.46pm
Telephone call from Justine Munsie to Adam Sandon AFP to inform him
that Seven has further documents to produce and she will send them
immediately by email.
Email from Justine Munsie to AFP attaching further documents in
response to the Production Order, being remittance notices for payments
made by New Idea for stories published between 2011 and 2014. This
includes one document which did not come into existence until sometime
on 14 February 2014.
17 February
Notwithstanding that the AFP had allowed Seven West Media until the
close of business on 17 February to provide a response to its questions
and knew that actions to provide documents were ongoing, the AFP
nevertheless approached the Local Court with an application that search
warrants be issued against Seven West Media and others. The warrants
were issued by 3:55pm on Monday 17 February.
The information placed before the Local Court Magistrate by the AFP in
support of its application included:
• An affidavit sworn by an Australian Federal Police agent which
stated that Seven West Media had not provided certain information
to the AFP but did not state that the AFP had allowed Seven West
Media an extension of time in which to provide that information;
• Draft search warrants which named as “suspects” in a criminal
investigation a number of Seven West Media staff and external
solicitors;
• An Order under Section 245 of the PoCA addressed to Justine
Munsie in which it was stated that the Magistrate was satisfied that
there were reasonable grounds for suspecting that Ms Munsie had
committed a criminal offence.
18 February
The AFP applied for a further search warrant together with a further
affidavit which again stated that Seven West Media had not provided
certain information to the AFP, even though that information had been
provided the previous afternoon
AFP executes the warrants at Seven West Media’s corporate
headquarters in Pyrmont, the offices of Sunday Night and New Idea and
Seven’s solicitors, Addisons.
21 February
AFP issues a statement acknowledging that the statement contained in
the Section 246 Order that Justine Munsie was reasonably suspected of
committing a criminal offence was incorrect and apologises, blaming a
“word processing error”
Attorney General Senator George Brandis says the dispute was a matter
for the AFP but he was concerned "about how this appears to have been
handled." and "I will be seeking to establish how this error was apparently
made by the AFP."
22 February
AFP Deputy Commissioner Michael Phelan conducts a press conference
to apologise for the error in relation to Ms Munsie but repeats claims that
Seven had not complied with the Production Orders served on it and that
this was the basis on which search warrants were sought.
24 February
Commissioner Tony Nugent and Deputy Commissioner Michael Phelan
appear before the Legal and Constitutional Affairs Senate Estimates
Committee hearing. They repeat their claims of non-compliance by Seven
and their view that the manner in which this matter has been handled is
standard operating procedure.
Seven West Media, Addisons and Justine Munsie commence proceedings
in the Federal Court seeking judicial review of the search warrants and
associated orders.
Attorney General Senator George Brandis says at Senate Estimates that
he “has no criticism to offer of the AFP, having heard the account that has
been given tonight to this Estimates Committee and having…heard from
Commissioner Negus on Tuesday afternoon of last week and received a
written briefing the following day. Also, I should add for completeness,
having had discussed the matter with my junior minister, Mr Keenan, who I
know has had several conversations with Commissioner Negus in the last
several days, I do not offer any criticism at all.”
Senator Brandis makes no mention of the concerns he expressed only 3
days previously about how the matter had been handled or the steps he
had taken to establish how the errors made by the AFP occurred.
7 March
Federal Court hearing. The AFP is represented by 5 lawyers from top tier
Sydney law firm Ashursts as well as Senior and Junior Counsel.
13 March
The AFP informs Seven West Media that it has discontinued its
investigation.
26 March
Her Honour Justice Jagot hands down her decision in favour of Seven,
Addisons and Justine Munsie.
Page 1 - Page 2 - Page 3
No comments:
Post a Comment