Chapter 21

The Australian Crime Commission

The Australian Crime Commission (ACC) is a federal body that – according to their website – ‘was established under the Australian Crime Commission Act 2002 as a statutory authority to combat serious and organised crime. We report directly to the Minister for Home Affairs and are part of the Attorney-General’s portfolio.’

While most people, including me, had never had anything to do with the ACC, there are some worrying things about them. For starters, they operate on a weird code of secrecy. If you get a summons to appear before them, you can only share that information with your lawyer. So, if you get summonsed and your wife asks you why you’re travelling to Melbourne for a couple of days, it’s illegal for you to tell her that you are appearing before the ACC.

Even newspapers are limited as to what they can print about this secret commission. The one thing that I did know about the ACC was that they were a powerful investigative body. I’d heard a bit about them from police members who had gone across to work there on secondment. The ACC was initially successful in breaking the code of silence in outlaw motorcycle gangs by giving people the right to speak freely while offering indemnity from prosecution.

I knew they had a lot of power to conduct coercive hearings. In their own words: ‘the ACC can draw on coercive powers which enable it to obtain information that cannot be accessed through traditional policing methods’ and allow their examiners to ‘summons any witness to appear… require that witness to give evidence of their knowledge of matters concerning the criminal activities involving themselves and others upon whom an investigation or intelligence operation is focused…’ They point out that their coercive powers are ‘protected under the secrecy provisions of the Australian Crime Commission Act’.

Witnesses are protected and everything is hush-hush. Unless they decide otherwise. In my case, they did.

On 23 February 2007, I was served with a summons to appear before the ACC. An ex-colleague of mine, Wayne Cheeseman, served the summons. When I saw him come into my work, I thought, hey, there’s Cheesy! I went out and greeted him as old friends do.

‘Cheesy, what are you up to?’ I asked, patting him on the back.

Cheesy looked towards the floor. ‘Actually, I’m with the Australian Crime Commission now,’ he said reluctantly, ‘and I’m here to serve a summons on you.’

He must have seen my face fall.

‘I offered to do it because I knew you,’ he explained in a quiet voice.

While I accepted his small act of kindness, it was still bittersweet.

 

The ACC held a hearing to examine the circumstances surrounding the deaths of Terry and Christine Hodson on Wednesday 7 March 2007.

In hindsight, I don’t know why the ACC even held the hearing, since the matter is outside its charter of investigating serious and organised crime. It is even outside its charter of investigating state crime with federal implications. For the ACC – called in by Victoria Police – to use their coercive powers in a murder investigation is, in my opinion, very dodgy. In my three years in the Homicide Squad, we never called in the ACC to question our witnesses and compel them to testify without legal representation. And one good reason why we never would have called them in is that murder investigations are outside their charter. The crime of murder is not a state law – it comes under common law, originating in seventeenth-century England.

For me, the most dangerous thing about the ACC was that they do a really good job of convincing you that nothing you say in the hearing will ever be used against you, and that it will be kept secret. You have to answer every question, but while your fundamental right to silence is taken away, they tell you that you are protected. If you do say something that’s self-incriminating, they offer a blanket indemnity for those questions, or with certain questions.

The examiner – Justice Hannaford, who was a Federal Court judge – made this clear to me right from the start. He pointed to various police members in the room and told me that they couldn’t take away information and use it in any way.

So I stood before Justice Hannaford at the beginning of my ACC questioning, having been through several OPI hearings, having been interviewed by ESD and arrested on several occasions, and every time I thought there might be an end to this, I’d receive yet another summons. By the time the ACC summons arrived, I hoped this might mark the end of this constant pursuit of me.

The first ten minutes at the ACC hearing almost put me at ease. The judge’s very clear explanations take around ten pages in the transcripts. He described to me all the ways that the commission could be trusted and said that I could talk openly and honestly: ‘I will again advise you as to what happens with the evidence that’s received… the Australian Crime Commission Act provides that you must answer all the questions that I require you to answer… there is no entitlement that’s available to you which would allow you to avoid those particular obligations… those particular obligations apply notwithstanding the fact that an answer… might tend to incriminate you or might tend to render you liable to the imposition of some penalty. However, the Australian Crime Commission Act does extend to you a legal protection from self-incrimination in respect to any documents or things that I might direct you to produce to me.’

He then explained that I could have protection from answers for some questions, or could have general protection.

Justice Hannaford said, ‘I will then further reassure you that what that then means is that absolutely nothing that you say to me during the course of this hearing will be able to be taken from this room and produced in a court as some evidence in any criminal prosecution proceedings against you, nor will it ever be taken from this room and produced as some evidence in any other proceedings for the imposition of some penalty against you. Mr Dale, do you understand the concept of self-incrimination?’

‘Yes,’ I replied.

‘Would you like therefore to have the benefit of the general protection from self-incrimination that’s available to you?’

‘Yes, I would,’ I said. I opted for the blanket indemnity, because by now, I didn’t trust anyone, least of all the police.

‘Mr Dale, you having sought the general protection from self-incrimination, can I now advise you that you do have the benefit of a general protection from self-incrimination in respect to all of the evidence that you’re required to give me during the course of this examination. Now just to reassure you as to what that now means. It now means that absolutely nothing that you say to me during the course of this hearing can now ever be taken from this room and produced in a court as some evidence against you in any criminal prosecution proceedings against you, nor will it ever be able to be taken from this room and produced as some evidence in any other proceedings for the imposition of some penalty against you and that protection will also extend to every document or thing that I might require you to produce during the course of this hearing. Do you understand? Do you have any questions of me about that?’

‘No,’ I said. Having been promised indemnity and security, I felt confident to speak freely, naming crooks and discussing informers. I should have known better.

While I tried to cooperate as best I could, a number of questions about what I was doing on specific dates and times four years earlier were impossible to answer. I asked to refer to my police diaries, which had been confiscated on the day of my arrest in December 2003. The assistant to the commissioner, Joanne Smith, said that she wanted to get my fresh view of things and refused me access to my police diaries.

I challenge anyone to answer specific questions from four years earlier.

When I later faced 23 charges stemming from what I said to the ACC, I found out the hard way that the esteemed commission’s promise of indemnity and secrecy was a big fat lie.