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  • Unreported Judgment

Callanan v Bush

 

[2004] QSC 88

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

8 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2004

JUDGE:

Douglas J

ORDER:

Order that the time for the filing of the appeal by the respondent Debra Ann Bush be extended to 4 March 2004 and grant her leave to appeal pursuant to s. 195(2)(b) of the Crime and Misconduct Act 2001 but dismiss her appeal.

Further order that the respondent Debra Ann Bush was in contempt of the applicant John David Callanan in refusing to answer questions asked by him of her on 1 August 2003.

Adjourn the further hearing of the application by the applicant John David Callanan to a date to be fixed.

CATCHWORDS:

PROCEDURE – Contempt, attachment and sequestration – Contempt – What constitutes – Other contempts – Investigation by the Crime and Misconduct Commission – Refusal of a woman to answer a question regarding her husband’s alleged involvement in drug related activities on the basis of spousal privilege

CRIMINAL LAW – Evidence - Evidentiary matters relating to witnesses and accused persons - Competence and compellability - Spouse of accused person – Generally - Statutory provisions – Whether section 190 of the Crime and Misconduct Act 2001 (Qld) abrogates spousal privilege – Where no spousal privilege exists at common law with respect to investigations

STATUTES - Acts of Parliament – Interpretation - Consideration of extrinsic matters - Legislative history of act – Preceding legislation and explanatory memoranda – Where the position was clearly set out in preceding legislation and in the explanatory memorandum

Evidence Act 1977 (Qld) ss. 3, 7(2), 8

Crime and Misconduct Act 2001 (Qld) ss. 25, 26, 190, 194, 195, 199, 346, Sch 2

Commissions of Inquiry Act 1950 (Qld) ss. 3, 10(4)

Acts Interpretation Act 1954 (Qld) s. 14B

Crime Commission Act 1997 (Qld) s. 107

Criminal Justice Act 1989 (Qld) ss. 74, 76, 77, 94

R v Murray & Cormie; Ex parte Commonwealth (1916) 22 CLR 437, referred to

 Zentahope Pty Ltd v Toycorp Ltd [1991] ATPR 41-120, referred to

Grapulin v Carltons & Corrugated Papers Pty Ltd (1960) 61 SR (NSW) 348, referred to

Rank Film Distributors Ltd v E N T Ltd (1994) 4 Tas R 281, referred to

Bank of Valletta plc v National Crime Authority (1999) 164 ALR 45, cited

Bank of Valletta plc v National Crime Authority (1999) 90 FCR 565, referred to

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385, followed

Rumping v DPP [1964] AC 814, referred to

Blau v. United States 340 US 332, referred to

Trammel v United States (1980) 445 US 40, referred to

In re Grand Jury Matter (1982) 673 F.2d 688, cited

Beckwith v The Queen (1976) 135 CLR 569, cited

Risk v Northern Territory of Australia and Another (2002) 210 CLR 392, cited

Bropho v Western Australia (1990) 171 CLR 1, referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

COUNSEL:

A J MacSporran for the applicant

P E Smith for the respondent

SOLICITORS:

R A Evans, official solicitor, Crime and Misconduct Commission for the applicant

A.W. Bale & Son for the respondent

[1] Ms Debra Bush’s husband had been charged with several offences including trafficking in and the unlawful supply and production of methylamphetamine.  She was required to attend an investigative hearing of the Crime and Misconduct Commission (“CMC”).  Mr Callanan was the presiding officer at the hearing and an Assistant Commissioner, Crime of the CMC.  On 1 August 2003, he directed her to answer a question as to whether she knew anything of any involvement of her husband with two other people in “dangerous drug related activities”.  She refused to answer the question, arguing through her lawyers that it was an abuse of process to summon her to give evidence against her husband where he had already been charged with offences and not yet tried for them.  She also offered an excuse for not answering that she did not wish to give evidence against her husband, the father of her children. 

[2] Until 5 January 2004 she would not have been a compellable witness against her husband in criminal proceedings because of s. 8 of the Evidence Act 1977.  Under amendments to that section that came into force on that date she could now be compelled to give evidence against him in such proceedings.  Mr Callanan rejected the submission that asking her about her husband’s activities was an abuse of process, ruled that she did not have a reasonable excuse for failing to answer the question and adjourned the matter to allow her to challenge the ruling in this Court under s. 195 of the Crime and Misconduct Act 2001 (“the Act”). 

[3] She had not done that by the time the matter came back before him on 21 August 2003.  After considering the matter he certified that she was in contempt pursuant to s. 199 of the Act.  This is an application by him for an order that she was in contempt and that her contempt be dealt with according to law.  She has brought a cross-application for an extension of time for filing an appeal pursuant to s. 195.  The same issues arise in each application – did she have a reasonable excuse for failing to answer the questions put to her because of her marriage to Mr Bush and is she able to claim any form of privilege permitting her to refuse to answer them? 

Section 190 of the Crime and Misconduct Act 2001

[4] The hearing before Mr Callanan as a presiding officer of the CMC was not a criminal proceeding but an investigative hearing into criminal activity allegedly engaged in by established criminal networks.  Section 190 of the Act provides that a witness at such a hearing must answer a question put to the witness by the presiding officer.  Section 194 allows the witness to claim to have a reasonable excuse for refusing to answer, including, but not explicitly limited to, a claim of legal professional privilege.  If the presiding officer rules against the witness on that issue then an appeal lies to this Court. 

[5] Section 10(4) of the Commissions of Inquiry Act 1950 also provides that an act or omission of a witness summoned to appear before a commission shall not be punished as contempt where the witness satisfies a judge of this Court of a reasonable excuse for the act or omission.  “Reasonable excuse” is defined in s. 3 of the Commissions of Inquiry Act as “an excuse which would excuse an act or omission of a similar nature by a witness or a person summoned to attend before a court of law as a witness”.  If s. 10(4) of that Act applied here then Ms Bush would have been able to point to her inability to be compelled to give the evidence in a court as a reasonable excuse for her failure to answer. Section 346 of the Act provides that the Commissions of Inquiry Act prevails over the Act but this investigative hearing under the Act was not itself a commission of inquiry under the Commissions of Inquiry Act.   The definition of “commission” in s. 3 of that Act coupled with the effect of s. 346 suggests that it was not and there was no evidence that it was.  It is to s. 190 and s. 194 of the Act then that one must turn to examine whether Ms Bush is excused from answering Mr Callanan’s questions. 

[6] The person, namely the witness questioned pursuant to s. 190 of the Act, is not entitled to remain silent or to refuse to answer the question on a ground of privilege other than legal professional privilege.  “Privilege” is defined in Schedule 2 to the Act, however, in the context of a crime investigation, to mean privilege recognised at law on the ground of self-incrimination or legal professional privilege and includes a claim on the ground of confidentiality.   It does not extend explicitly to what has been described as “marital communications privilege” or “spousal privilege” nor does it deal with the case where a spouse was not a compellable witness.  The Explanatory Notes to the Bill, however, assert that the person attending as a witness “may only refuse to answer on the ground of legal professional privilege”.

[7] Mr Smith’s submissions for Ms Bush focus on two related arguments.  The first is that Ms Bush had a reasonable excuse to refuse to answer the question because, when she was asked the relevant questions, she would not have been a compellable witness against her husband in a criminal proceeding.  His second argument is that “spousal privilege” is not referred to in the definition of “privilege” in Schedule 2 to the Act, therefore has not been removed as a reason for refusing to answer a question by a clear statutory provision and so continues to exist as a ground of privilege and a reason for refusing to answer the questions. 

Reasonable excuse

[8] Mr MacSporran’s response to the submission that Ms Bush was not a compellable witness in criminal proceedings against Mr Bush included an argument that, nonetheless, this investigative hearing conducted by Mr Callanan was a proceeding within the meaning of that term in s. 3 of the Evidence Act 1977, and, not being a criminal proceeding, was itself a proceeding where Ms Bush was compellable to give evidence pursuant to s. 7(2) of that Act.  The precise terms of those sections are relevant:

3 ... ‘proceeding’ means any civil, criminal or other proceeding or inquiry, reference or examination in which by law or by consent of partiesevidence is or may be given, and includes an arbitration.”“7 Parties, their wives and husbands as witnesses...(2) The husband or wife of a party to a proceeding (not being a criminalproceeding) and the husband or wife of a person on whose behalf such aproceeding is brought or defended is competent and compellable to giveevidence on behalf of either or any of the parties to the proceeding.”

[9] Mr Smith’s reply to that argument is that s. 7(2) does not apply because Ms Bush was not the wife of a party to a proceeding, her husband not being a party but merely one of a number of people being investigated.  He referred me to a number of decisions where the word “party” was used as meaning a litigant or a “party to the record”.  That is its prima facie meaning; see, e.g., R v Murray & Cormie; Ex parte Commonwealth (1916) 22 CLR 437, 469; Zentahope Pty Ltd v Toycorp Ltd [1991] ATPR 41-120 and Grapulin v Carltons & Corrugated Papers Pty Ltd (1960) 61 SR (NSW) 348, 350, 352, a case whose result, if not the reasoning about whether “party” normally referred to a litigant, is now doubted; Rank Film Distributors Ltd v E N T Ltd (1994) 4 Tas R 281.  It is also important that the use of the word “party” in the Evidence Act clearly distinguishes between witnesses and parties; see, e.g., ss 13, 16, 17, 21(2)(b), 21I, 93A(3) and 95A(9).  In those circumstances I take the view that it would not be appropriate to treat the CMC investigation as one to which Mr Bush was a party.  Rather he was one subject of an investigation.  That has the consequence that Ms Bush was not a compellable witness before Mr Callanan pursuant to s. 7(2) of the Evidence Act

[10] Mr Smith also submitted that this investigative hearing did not fall within the definition of proceeding in s. 3 of the Evidence Act but it seems to me to fall within the meaning of that term, not as a criminal proceeding, but at least as an examination; see ss 25 and 26 of the Act and the definition of “investigate” in Schedule 2 which includes “examine”. 

[11] If, then, Ms Bush could not have been compelled to give evidence against her husband in a trial of the charges against him, the submission is that to examine her in this form of inquiry, after her husband’s arrest and before his trial and where the CMC has been involved in investigating the charges against him, was to attempt wrongly to circumvent the then current rule against compelling her to give such evidence in a criminal trial and to create a reasonable excuse for her refusal to answer the questions. 

[12] In other contexts the phrase “reasonable excuse” has been interpreted broadly.  There is a useful and recent general discussion by Hely J in Bank of Valletta plc v National Crime Authority (1999) 164 ALR 45, from which an appeal was dismissed; see Bank of Valletta plc v National Crime Authority (1999) 90 FCR 565.  His Honour said at 164 ALR 53-57; [36]-[47]:

 

“[36]  The existence of a “reasonable excuse'’ is a familiar ground of exculpation from what would otherwise be the operation of a statutory prescription. Sometimes the ground of exculpation is expressed in terms of “lawful excuse'’ or “lawful authority'’. There may be a “lawful excuse'’ even though no “lawful authority'’ exists: Yin v Public Prosecutor [1955] AC 93 at 101; similarly there may be a reasonable excuse without a legal justification for the conduct in question: Poole v Wah Min Chan (1947) 75 CLR 218 at 232.

 

[37] In Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; 57 ALR 751 the High Court considered whether the privilege against self-incrimination was a reasonable excuse for failure to produce books in response to a notice issued by the National Companies & Securities Commission. The statutory context indicated an intention to exclude the privilege. For that reason the defence of reasonable excuse did not include the privilege against self-incrimination so far as production of books is concerned. “Reasonable excuse'’ (at CLR 392; ALR 755):

 

“… is directed to other matters, such as the physical or practical difficulties which may be involved in their production.”

 

[38] Clearly enough, the reference to physical or practical difficulties in complying with the notice was illustrative of matters which might constitute a reasonable excuse, rather than a description or definition of the scope of the concept. While s 30 of the NCA Act specifies some matters which constitute a reasonable excuse, and others which do not, the present problem is not dealt with either expressly or by implication by the stipulations in s 30. There is a qualitative difference between the production of a document which might implicate the bank in some prior criminal activity, and a case where the very production of the documents called for by the notice constitutes the criminal offence under foreign law: Brannigan v Davison [1997] AC 238; Societé Internationale v Rogers (1958) 357 US 197 at 211.

 

[39] The observations of Dawson J in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 336; 100 ALR 609 that “reasonable excuse'’ more aptly refers to any physical or practical difficulties in complying with the notice, rather than to legal professional privilege, is no more than an application of the point made in Controlled Consultants. It is not a holding, as counsel for the respondent submitted, that in legislation such as this, exculpation expressed in terms of reasonable excuse, is confined to physical and practical difficulties in complying with the notice. In any event the submission begs the question as to whether the fact that compliance with the notice may involve the bank in the commission of an offence under the laws of Malta is a “practical difficulty'’. In Taikato v R (1996) 186 CLR 454 at 464; 139 ALR 386, the High Court indicated that decisions on other statutes provide no guidance on what constitutes reasonable excuse in the instant case.

 

[40] In Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 Kirby P, with whom Meagher JA and O’Keefe AJA agreed, speaking of “reasonable excuse'’ (at 436), said that:

 

‘… there is every reason to give the words used their ordinary construction. They simply ask whether the refusal to answer the question was “without reasonable excuse'’ … In accordance with orthodox canons of construction these words would not be given a narrow meaning. They appear in a provision which imposes a criminal sanction for its breach.’

 

And (at 439) said that:

 

‘It is undesirable that different formulae should be substituted for that which parliament has enacted.

 

Nevertheless, in judging whether a “reasonable excuse'’ exists, it was clearly appropriate for the decision-maker to put out of mind imaginary and insubstantial fears or those which, in the practical world, are so remote as to be safely ignored or over-ruled as unreasonable. In each case, a judgment must be made.’

 

[41]  Ganin was cited by the majority in Taikato without disapproval. Although Dawson J was in the minority in that case in the result, his Honour said (at CLR 470; ALR 398):

 

‘A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse…’

 

That is the same notion that Kirby J was describing in Ganin. It is also the notion expressed by Mansfield CJ, in a rather different context, in Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373 at 378:

 

‘What is to be determined is whether the applicant has shown any cause which can be deemed by the court to be a reasonable excuse. I think this means a cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct …’

 

[42]  Thus while a reasonable excuse would include any current legal right to resist the compulsory production of documents, it is not confined to cases in which the resistance is on the basis of some right, privilege or immunity recognised by the general law. Nor is it necessarily confined to physical or practical difficulties in complying with the notice. It includes any excuse which would be accepted by a reasonable person as sufficient to justify non-compliance with a notice lawfully issued by NCA, but bearing in mind the central role that such notices play in the discharge by NCA of its statutory functions.

 

[43] Brannigan v Davison [1997] AC 238 is a decision of the Privy Council, on appeal from New Zealand, in a situation which, in some respects, is similar to the present. There a Commission of Inquiry in New Zealand required the plaintiffs, who were citizens and residents of New Zealand, but who also practised as chartered accountants in the Cook Islands, to give evidence to the inquiry, about matters involving the Cook Islands, when the giving of that evidence was likely to render them liable to prosecution in the Cook Islands pursuant to that country’s secrecy legislation. That legislation was enacted to promote the attractions of the Cook Islands as a tax haven. The New Zealand legislation under which the Commission of Inquiry operated preserved the privilege against self-incrimination. Under that legislation, a refusal to answer questions, to be punishable, must be “without sufficient cause” or without offering any “just excuse”.

 

[44] The Privy Council held that:

 

  •   The common law privilege against self-incrimination does not run when the criminal or penal sanctions arise under a foreign law. That is because, having regard to the absolute nature of the privilege where it exists, the effect of its recognition would be to give primacy to the foreign law. That would be an unacceptable encroachment on the domestic country’s legitimate interest in the conduct of its own judicial (and presumably, inquisitorial) proceedings.

 

  •   By the same process of reasoning the privilege does not run where the feared criminality under the foreign law, lies not in the previous conduct of the plaintiffs, but in the fact of them giving evidence to the Commission of what they know of the transactions which involved the Cook Islands.    

 

  •   If the unqualified application of the privilege to foreign law is unsatisfactory, so also is the opposite extreme. The opposite extreme is that the prospect of punishment under foreign law is neither here nor there. This would be a harsh attitude which would be a reproach to any legal system.

 

  •   The “sufficient cause” and “just excuse” exceptions (which are synonymous) provide ample scope for all the circumstances to be taken into account. Inherent in those expressions is the concept of weighing all the consequences of the refusal to give evidence: the adverse consequences to the inquiry if the questions are not answered, and the adverse consequences to the witness if he is compelled to answer.

 

  •   It was a matter for the Commissioner to determine whether the statutory exceptions were applicable. Although he misdirected himself on that question he also conducted the weighing exercise which the Privy Council considered to be appropriate. He held that the justification for compelling the plaintiffs to give evidence in New Zealand was so strong that no balancing considerations under the foreign State compulsion principle could lead to their being allowed to refuse to give evidence. That decision was unassailable.

 

[45] Their Lordships noted (at 253E) an acceptance on the part of the Commission that the firm of accountants could not reasonably be expected to produce documents currently located in the Cook Islands.

 

[46]  The Privy Council in Brannigan allowed a much broader scope, in the statutory context there under consideration, for the notion of “reasonable excuse'’, or equivalent expressions, than did the New South Wales Court of Appeal in Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504, in the context of the Australian Securities Commission Act 1989 (Cth) (“ASC Act”). In Ampolex the existence of an undertaking to the Court to protect the confidentiality of documents was not regarded as a reasonable excuse for not complying with a notice which required their production. The NCA Act differs from the ASC Act, and corresponding provisions commonly found in companies legislation, in as much as the NCA Act allows the recipient of a notice to claim to the person to whom he is required to produce the documents that he is entitled to refuse production: s 29(5). An adverse decision on that claim is the subject of an internal merits review (s 32(1)(b)), and to judicial review: s 32(2). The nature and extent of the provisions for determining an alleged entitlement to refuse to produce documents, particularly the internal review, suggests that the notion of “reasonable excuse'’ may be broader than common law privileges to the extent that they are preserved by s 30, and physical or practical difficulties in producing the documents called for by the notice, particularly if “practical'’ difficulties is used in a narrow sense.

 

[47] I do not think that I am bound by the decisions of the High Court to which I have referred to find, or that I should otherwise find, that the structure of the NCA Act is such that “reasonable excuse” is confined to physical excuse (for example, documents cannot be found or insufficient time allowed) and the specific categories of legal excuse referred to in s 30. To the extent to which the structure of the NCA Act provides guidance on the question, it points in a different direction. The result is that a value judgment has to be made in the circumstances of each individual case, as to whether the recipient of the notice has a reasonable excuse, in the sense that this term is ordinarily understood, for not producing the documents in question. If the range of factors which may be taken into account in making that judgment is as the Privy Council suggests, not  all of them may be known to the recipient of the notice at the time when production of the documents is called for, and each case may be highly sensitive to its own facts. However, I should follow the decision of the Privy Council, which involves the making of an objective determination as to the existence or otherwise of a reasonable excuse.”

[13] Whether it is a reasonable excuse in this case will be influenced, in my view, however, by the extent of the power to question under s. 190. The approach of the High Court in Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385, 391-394 was to examine whether the statutory context indicated an intention to exclude the privilege against self-incrimination.  As the Court held that it did, the consequence followed that there was no reasonable excuse for the failure to produce the books sought in that case.  The argument that “reasonable excuse” more aptly refers to any physical or practical difficulties in complying with the questions is not relevant here. 

[14] If the only entitlement to refuse to answer under s. 190 of the Act in issue here is a claim of legal professional privilege, and not a claim for “spousal privilege”, then there is less scope for the argument that the lack of power to compel answers from Ms Bush on her husband’s criminal trial amounted to a reasonable excuse for Ms Bush to refuse to answer Mr Callanan during his investigation.  This would be so even if “reasonable excuse” is not confined to cases in which the resistance to answering is on the basis of some right, privilege or immunity recognised by the general law and includes any excuse which would be accepted by a reasonable person as sufficient to justify non-compliance as Hely J concluded in Bank of Valletta plc v National Crime Authority at 55; [42].

“Spousal privilege”

[15] There is no confidentiality in communications between a husband and wife; see Rumping v DPP [1964] AC 814, 835, 856, 861, 865-867 and Cross on Evidence (Australian ed.) [13030].  The historical basis for that decision was criticised by W S Holdsworth in (1940) 56 LQR 137 and the common law in the United States of America continues to recognise confidentiality in information privately disclosed between husband and wife in the confidence of the marital relationship.  Those confidences are privileged under an independent rule protecting confidential marital communications; Blau v. United States 340 US 332; Trammel v United States (1980) 445 US 445 40, 51.  But Rumping is a decision more relevant to the statutory background of the Queensland legislation and one I should follow.  So the extension of the definition of “privilege” in Schedule 2 of the Act to include “a claim on the ground of confidentiality” does not assist in resolving the issue whether there is a matrimonial communications or spousal privilege still available to Ms Bush. 

[16] One also has to ask what was the privilege claimable when Ms Bush was questioned: was it simply a statutory right in her not to be compelled to give evidence against her husband in criminal proceedings because she did not fall within the language of s. 8(5) of the Evidence Act and not one applying to criminal investigations? 

[17] The original common law rule, subject to some irrelevant exceptions, was that a party’s spouse was incompetent as a witness for or against the party; Cross on Evidence at [13030].  In Coke on Littleton (18th ed., 1823) at 6b the rule was expressed as “a wife cannot be produced either for or against her husband”; see also Wigmore on Evidence (McNaughton rev. 1961) at §2227 which refers to the same expression of the principle in the 1st edition of Coke on Littleton in 1628.  The spouses of parties are now competent and compellable in civil cases by s. 7 of the Evidence Act and were, when Ms Bush was examined, compellable by s. 8(5) of that Act to give evidence in criminal proceedings wherever at common law they were competent or compellable to give evidence for the prosecution.  Ms Bush would have been neither competent nor compellable to give evidence for the prosecution against her husband at common law.  That is the right that she could have asserted. 

[18] Did that right or privilege extend to a right to refuse to answer questions in an examination of witnesses forming part of an investigation?  The answer to that question must surely be that, as she would have had no obligation to answer such questions put to her by an investigator who did not have the power to require answers, there was no need to rely on any such privilege and, logically, no occasion for such a privilege to be created.

[19] In the United States the privilege against “adverse spousal testimony” has been regarded as relevant in a grand jury investigation when the government sought one spouse's testimony concerning the activity of a third person, who was alleged to have engaged in a common criminal scheme with a husband and his wife, and the government hoped also to reach the non-witness spouse, the testimony sought was regarded as sufficiently adverse to the interests of the absent spouse to permit invocation of the privilege; In re Grand Jury Matter (1982) 673 F.2d 688.  But the Court of Appeal of the Third Circuit said at 691-692: "The crux of (the) privilege is that a person may not be forced to be a witness against his or her spouse in a criminal proceeding.” The Court was clearly treating the grand jury investigation as a criminal proceeding.  Grand juries were a standard part of the common law system of criminal procedure in England and still are in the United States.  They might, and commonly did, result in the indictment of suspects after an inquiry into an alleged crime.  Although their inquiries were normally conducted in private they consisted of lay jurors instructed by a judge before whom witnesses were summoned.  The witnesses had to testify or be held in contempt of court; Walker, The Oxford Companion to Law (1980) p. 534.  They were not broader investigations of the type being carried out by the applicant.

[20] The common law rule is not expressed as extending beyond proceedings where witnesses are called to give evidence compulsorily, to broader investigations of the type in question here.  When the rule was established, there neither existed modern police forces with statutory investigatory powers nor any obligation to answer questions put to a person by an investigator.  The “privilege” did not extend outside the court room and litigation whether civil or criminal between parties, including the Crown.  There was no occasion to invoke it against an investigator because there was no obligation to answer the investigator’s questions. 

[21] In those circumstances the claimed privilege is simply irrelevant.  It did not exist in the context of a criminal investigation which is the context identified in the definition of “privilege” in Schedule 2. 

The proper approach to construction of the Act

[22] In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78] McHugh, Gummow, Kirby and Hayne JJ said:

[23] Regard may also be paid to extrinsic materials; s. 14B of the Acts Interpretation Act 1954 and Bropho v Western Australia (1990) 171 CLR 1, 20.  The "legislative history and antecedent circumstances" may also assist, Risk v Northern Territory of Australia and Another (2002) 210 CLR 392, 418 per Gummow J at [83], although resort to that history "all too rarely illuminates the meaning of the current provision", Beckwith v The Queen (1976) 135 CLR 569, 578 per Mason J.

[24] The history here is that the Act amalgamated the Criminal Justice Commission and the Queensland Crime Commission created by the Criminal Justice Act 1989 (‘the CJA’) and the Crime Commission Act 1997 (the ‘CCA’) respectively.  The provisions in those two earlier Acts, dealing with claims of privilege before those bodies, aid the interpretation of s. 190 to some extent. 

[25] The CJC was empowered to summon a person to give evidence before the Commission; s. 74 of the CJA.  The person was required to comply with the summons (i.e., give evidence) unless he or she had a “lawful excuse”; s. 76.  Section 77 made it clear that a person had a “lawful excuse” if he or she could claim legal professional privilege, Crown privilege or other public interest or parliamentary privilege.  Section 94(1) further provided that a person could not (subject to s. 77) object to furnishing information “upon a claim of privilege on any ground”.  Section 94(2) also provided that a person in attendance before the commission was not entitled to remain silent or refuse to answer a question on the ground of self-incrimination.  “Privilege” was not defined by the CJA, but s. 94(1) made it clear that a person could not claim privilege (including spousal privilege) as a ground for refusing to answer questions, subject to the three exceptions in s. 77. 

[26] Subsections 107(2), (3) and (4) of the CCA were in effectively the same terms as subss 190(1), (2) and (3) of the Act.  “Privilege” was defined in the schedule to the CCA in similar terms to the definition in the Act so that legislation raised the same issue as has been argued here. 

[27] As I have already said, the explanatory note to cl. 190 of the Crime and Misconduct Bill 2001 (“the Bill”) made it clear that parliament’s intention was that no ground other than legal professional privilege was available for a person to refuse to answer a question.  It said: “The person may only refuse to answer on the ground of legal professional privilege”. 

[28] In these circumstances, taking into account the emphatic language of s. 190(2) of the Act disentitling a person from refusing to answer a question on a ground of privilege other than legal professional privilege, my view of the inapplicability of any claim of “spousal privilege” to an investigation under the Act and the legislative history, particularly of the relevant terms of the CJA and the explanatory note to the Bill, then the meaning that the legislature is taken to have intended s. 190 to have is clear.  There is no ability to refuse to answer questions based on a claim of spousal privilege nor would that be a reasonable excuse for refusing to answer the questions under s. 194. 

Conclusion

[29] Accordingly Ms Bush was not entitled to remain silent or refuse to answer Mr Callanan’s questions on a ground of privilege and the simple terms of s. 190 require her to answer his questions.  In those circumstances my view is that it is not a reasonable excuse for her to refuse to answer on the basis that she could not have been compelled to answer the same questions on her husband’s trial.  Where self-incrimination cannot be used as an excuse to refuse to answer why should even her natural wish not to incriminate her husband excuse her from answering? 

[30] Investigations under defined statutory powers into organised criminal networks also serve different ends than proceedings between parties, whether criminal or civil.  Where the Act emphatically requires her to answer questions in aid of such an investigation it is not a reasonable excuse to refuse to answer simply because she would not have been required to answer them at her husband’s trial. 

[31] The orders I propose are to extend the time for the filing of Ms Bush’s appeal and grant her leave to appeal but dismiss her appeal.  On Mr Callanan’s application I would declare that she was in contempt of him but have been asked by the parties to delay making any consequential orders to allow Ms Bush to consider her position.   I shall hear the parties as to costs. 

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Editorial Notes

  • Published Case Name:

    Callanan v Bush

  • Shortened Case Name:

    Callanan v Bush

  • MNC:

    [2004] QSC 88

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    08 Apr 2004

Litigation History

No Litigation History

Appeal Status

No Status