The Australian Crime Commission (ACC) was left red faced after Melbourne’s high flying celebrity lawyer Michael Brereton yesterday won his two year court battle against them. In the Melbourne Magistrates Court Magistrate Phillip Goldberg discharged all charges against Brereton for failing to take an oath or affirmation at a secret ACC Examination in March 2006.

The decision again calls into question the modus operandi of the ACC and the wider implications of Operation Wickenby including the validity of summonses issued to Wickenby targets.

At the Examination Brereton refused to answer any questions including taking an oath or affirmation. The affirmation was then read to Mr Brereton which he did not respond to. However Goldberg noted he was not read the oath and ruled the ACC should have read Brereton a form of the affirmation and the oath. He said that ACC investigators did not comply with their own ACC Act.

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This unprofessional conduct has led to government officials and politicians ducking for cover.

ACC CEO Alastair Milroy yesterday told Crikey, “The Australian Crime Commission (ACC) notes today’s decision in the Melbourne Magistrates court. Operation Wickenby is a complex and wide ranging investigation. The ACC and its partner agencies will continue to target and prosecute those allegedly involved in schemes to fraudulently evade taxation responsibilities. The ACC will also continue to prosecute those who breach the ACC Act. The ACC has no further comment on this matter.”

Attorney-General Robert McClelland would not comment on the decision.

This is not the first time Brereton has won court decisions over the ACC. Last year political zealot Philip Ruddock bailed the ACC out of trouble by introducing retrospective legislation to ensure the validity of ACC summonses.

The amendments were developed in response to findings made by Justice Smith of the Victorian Supreme Court in ACC v Brereton [2007] VSC 297, which was handed down on 23 August 2007. Justice Smith held that for a summons to be valid, reasons for issuing the summons must have been issued prior to the time the summons was actually issued.

So will the government of the day bail out the nongs at the ACC again? I don’t think so. Jim Davis, a leading academic and legal adviser to the Senate Standing Committee for the Scrutiny of Bills since 1983, has publically criticised the amendments and they are now the subject of review by a parliamentary committee.

The ACC need to get their act together. Their unprofessional conduct in Wickenby has been highlighted by leaks to the media of the personal details of Australian taxpayers, stand over merchant tactics utilised in raids and non adherence to their own legislation.

Privately, leading lawyers have told me that yesterday’s court decision will have an adverse impact on any summons issued to Wickenby targets.

No doubt we will be hearing more in the near future of other challenges by suspects caught up in the national witch hunt for high profile tax cheats.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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