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Younan v Crime Reference Committee

 

[2014] QSC 24

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane 

HEARING DATES:

1 November 2013; 5 November 2013

JUDGE:

Dalton J

ORDER:

Applications Dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – RELEVANT CONSIDERATIONS – IRRELEVANT CONSIDERATIONS – IMPROPER EXERCISE OF POWER – ERROR OF LAW – where section 57 of the Crime and Misconduct Act 2002 (Qld) requires regard be had both to the purposes of the Act and the importance of public interest

STATUTORY INTERPRETATION – clear words abrogating right to silence and privilege against selfincrimination – suspect

Crime and Misconduct Act 2001 (Qld)

Judicial Review Act 1991 (Qld)

Accused A v Callanan [2009] 2 Qd R 112

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Callanan v B [2005] 1 Qd R 348

Hammond v The Commonwealth (1982) 152 CLR 188

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457

Lee v New South Wales Crime Commission [2013] HCA 39

Maycock v Queensland Parole Board [2013] QSC 302

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Sorby v The Commonwealth (1983) 152 CLR 281

Witness A v Crime & Misconduct Commission [2005] QSC 119

Witness C v Crime & Misconduct Commission [2008] QSC 196

Witness D v Crime & Misconduct Commission [2008] QSC 155

X7 v Australian Crime Commission & Anor [2013] HCA 29

COUNSEL:

A Boe with P Morreau for the Applicants

AJ MacSporran QC for the Respondents

SOLICITORS:

Nyman Gibson Stewart for the Applicants

Crime & Misconduct Commission for the Respondents

[1] These two proceedings were heard together.  In each the applicant asked for a statutory order of review of the decision of the second respondent, as delegate of the chairperson of the Crime and Misconduct Commission (CMC), to issue an attendance notice to him, pursuant to s 82 of the Crime and Misconduct Act 2001 (Qld) (the Act).

[2] The factual background is that a man named Omega Ruston was shot dead on the Gold Coast Highway on 26 January 2009.  While driving, he and his two passengers became involved in an argument with the occupants of another car.  Mr Ruston pulled over to the side of the highway.  The second car pulled over as well, and a man seated in the back of it produced a gun and shot Mr Ruston dead.

[3] On 23 March 2009 the Crime Reference Committee[1] (CRC) referred the investigation of the murder of Mr Ruston to the CMC.  On 2 April 2009 the second respondent authorised the holding of an investigative hearing into the murder of Mr Ruston pursuant to s 176 of the Act.  On 3 April 2009 the second respondent issued an attendance notice to Mr Younan.  On 21 May 2009 Mr Younan applied for a statutory order of review of the decision to refer the investigation of the murder of Mr Ruston to the CMC, and of various other decisions, including the other two just mentioned.  On 21 August 2009 Dutney J dismissed that application.[2]

[4] On 11 October 2011 the second respondent, acting as chairperson of the CMC pursuant to s 82(1)(a) of the Act, issued a notice requiring Mr Hamdan to attend at a CMC hearing on 14 November 2011 and a notice requiring Mr Younan to attend at a CMC hearing on 16 November 2011.  That led to the institution of these current two proceedings, which have had a somewhat protracted passage through this Court.  In both proceedings the relief sought was originally wider, but, pursuant to amended applications, was limited on the trial before me to a review of the second respondent’s decisions to issue the two attendance notices just described.  The second respondent was therefore the only respondent against whom relief was sought.  Having regard to the amended applications for statutory review, and the concessions made (and not withdrawn) in written outlines of argument, four grounds were argued in support of the applications which were (using the numbering from the amended applications):

 

“7.The decision was not authorised by the enactment under which it was purported to be made, namely, s 82 of the Act.

8.The making of the decision was an improper exercise of power conferred by the enactment under which it was purported to be made, in that it involved failing to take a relevant consideration into account in the exercise of the power.

9.The decision was an improper exercise of power, … in that it involved taking an irrelevant consideration into account …”

12.The decision involved an error of law.”

[5] Before dealing with these grounds individually, I will outline some matters common to the arguments about all of them.

[6] The purposes of the Act include combating and reducing the incidence of major crime – s 4(1)(a).  At s 5(2) it is stated that the Act’s purposes are to be primarily achieved by establishing the CMC which is to have investigative powers, “not ordinarily available to the police service, that will enable the commission to effectively investigate major crime.”  Pursuant to s 26 of the Act, the CMC is to perform its crime function by investigating major crime referred to it and, inter alia, gathering evidence for the prosecution of persons for offences – s 26(b)(i).  It is the CRC which decides to refer a specific crime to the CMC.  It may refer only if it is satisfied of three criteria, including that further investigation of the particular crime is unlikely to be effective using powers ordinarily available to police officers – s 28(1)(b).  That is, the Act contemplates that, in investigating crimes referred to the CMC, the CMC’s extraordinary powers will be of assistance in dealing with those crimes, in this respect, see also s 28(4). 

[7] One of the CMC’s extraordinary powers is to compel attendance at coercive hearings.  It is this power which is the subject of these applications.  Once an attendance notice under s 82 of the Act issues, it is a crime to disobey it by not attending (without reasonable excuse) – s 82(5).  During questioning at the hearing, attendees may not remain silent and may not refuse to answer questions on the grounds that the answers might tend to incriminate them – s 190.  However, if privilege against self-incrimination is claimed in relation to an answer or the production of a document, the answer or document is not admissible in evidence against the person claiming the privilege in any civil, criminal or administrative proceeding – s 197(2).  That is, the Act confers what is known as direct use immunity.  The Act does not provide for any derivative use immunity.  The powers of the CMC on such a hearing as is contemplated by an attendance notice are extraordinary and significantly diminish the rights and privileges which characterise our system of criminal justice.[3]

[8] Section 331 of the Act provides that the CMC may investigate a crime notwithstanding any proceeding before a Court.

[9] Before the CRC may refer investigation of a crime to the CMC it must be satisfied that, “it is in the public interest to refer the particular incident of major crime to the commission for investigation” – s 28(1)(c).  It was recognised in Accused A v Callanan[4] that a consideration of “the public interest” relevant to that sub-section includes not only the public interest in combating and reducing major crime, but also the public interest considerations which flow from the consequences of a referral to the CMC, including a serious diminution in the rights of those persons to whom an attendance notice is issued.[5]  Further, it was recognised in Accused A that in considering the public interest, the CRC was to have regard to public interest factors against referral, as well as those in favour of referral.

[10] In contrast to s 28(1) of the Act, s 82 of the Act does not specify any matters of which the CMC must be satisfied before a decision to issue an attendance notice.  Section 57 of the Act is a general provision.  By it, the CMC must, “at all times, act independently, impartially and fairly having regard to the purposes of this Act and the importance of protecting the public interest”.  It was accepted by the second respondent, correctly in my view, that the general provision at s 57 of the Act applied so that in making a decision to issue an attendance notice, the CMC was to have regard to “the importance of protecting the public interest”.

[11] There is a difference between the words in s 57 – “the importance of protecting the public interest”, and the words used in s 28(1)(c) – “in the public interest”.  As well, the sections create different obligations: the CRC before acting pursuant to s 28(2) must satisfy itself; when the CMC acts, including pursuant to s 82, it must have regard to, public interest considerations.

[12] Notwithstanding these differences, I think it is correct to say, as the applicants did, that the discussion in Accused A, as to the types of matters comprehended in considering the public interest, is applicable to s 57 of the Act.  The obligation to have regard to the importance of protecting the public interest in s 57, when deciding to issue an attendance notice, includes an obligation to have regard to the public interest considerations associated with the significant diminution in the rights of an attendee.  Protecting the public interest must involve protecting the public interest in maintaining as generally applicable and available the rights, liberties and privileges which are fundamental to our system of criminal justice.  I think the applicants were correct in submitting that s 57 ought be construed this way in part because it requires that regard be had both to the purposes of the Act and the importance of protecting the public interest.  Were the CMC only to act having regard to the public interest in combating and reducing major crime (ie the purposes of the Act), there would be no need to use the words “and the importance of protecting the public interest”.

[13] None of this was disputed by the second respondent.  He swore that before deciding to issue attendance notices to the applicants he had regard to the requirements imposed by s 57 of the Act and that this was in accordance with his general practice.

[14] The diminutions to the ordinary rights, liberties and privileges of a citizen in our justice system, consequent on the issue of attendance notices, are particularly pertinent to the applicants.  They have come into possession of a copy of a restricted Australian Crime Commission document which reveals that the Australian Crime Commission, “is in possession of information dated 3 February 2009 suggesting that Haysam Hamdan … and Paul Younan …, and a third person (nfd) were responsible for the shooting death of a motorist at Burleigh Heads, Queensland, on 26 January 2009” – Court Document 12.  The attendance notices which are the subject of challenge require the applicants to give evidence “as to your knowledge of the circumstances surrounding the murder of Omega Ruston at Burleigh on 26 January 2009”.  The consequences of the executive being allowed to question someone who is suspected of, or charged with, a crime, about matters going to their guilt or innocence of that crime are recognised in the cases to be detrimental, to that person, even if there is a direct use immunity granted to the person who is questioned.

[15] The decision to issue an attendance notice is one for which the second respondent is not obliged to give reasons – see s 31(b) and items 1(a) and 1(d)(iii) of Schedule 2 of the Judicial Review Act 1991.  The second respondent has explained some matters about his decisions in affidavits filed in these proceedings, but has not given a comprehensive statement of reasons for the decisions.  For example, the second respondent swears that in making the decision to issue the attendance notices he had regard to documents which rehearsed the circumstances of Mr Ruston’s killing and the body of information, referred to as criminal intelligence, bearing on this.  These documents have not been disclosed in the proceedings and their contents have not been detailed because the second respondent successfully claimed public interest immunity privilege in the contents of these documents.[6] 

[16] Against this background I turn to the specific grounds of review advanced on behalf of the applicants.

 

7.  The decision was not authorised by the enactment under which it was purported to be made, namely, s 82 of the Act

[17] This ground is identical to a ground of review which was upheld in Accused A.  In that case it was found as a fact that the CRC had not understood those propositions at [9] above.  On the evidence in that case, the CRC had only considered public interest matters relevant to combating and reducing major crime.  As a result, Applegarth J found that the CRC had “adopted an unjustifiably narrow view of ‘the public interest’, and not one that accords with the proper meaning of ‘the public interest’ in s 28(1)(c)” – [55].

[18] As noted earlier, s 28(1) of the Act prescribes satisfaction that it is in the public interest to refer the crime under consideration to the CMC, as a pre-condition to the power of the CRC to refer the crime.  Thus, the consequence of the error found in Accused A was held to be that, “By adopting an erroneous conception of ‘the public interest’, … the committee was not in fact satisfied of a matter upon which its power to refer depended” – [57].  In those circumstances Applegarth J found that the decision to refer to the CMC was not one authorised by the enactment under which it purported to be made, because the error as to the meaning of s 28(1)(c) deprived the decision of legal foundation – [58].

[19] The ground is not made out here.  The difference lies partly in the difference between s 28(1)(c) on the one hand, and s 57 and s 82 of the Act, on the other.  When acting under s 82 of the Act, the second respondent was obliged to have regard to “the importance of protecting the public interest”.  He was not obliged to be satisfied of any particular matter as a precondition to the exercise of power.  Additionally, on the evidence before me (which is discussed at [22], [23] and [26] below), the second respondent clearly did have regard to the importance of protecting the public interest in making the decision to issue attendance notices pursuant to s 82 of the Act.  As discussed below, he correctly interpreted and understood the ambit of matters to which he was to have regard.  He did not have any erroneous conception of what was meant by the “importance of protecting the public interest” within the meaning of s 57 of the Act.

 

8.  Failure to take into account a Relevant Consideration

[20] Two matters were relied upon here.  I reject both as good grounds of review for the following reasons.

 

(a)  Lip Service

[21] Written submissions as to this point were filed on behalf of the applicants in June 2013, well before the affidavits of the second respondent, filed by leave on 5 November 2013, which explained in detail how he had regard to the protection of the public interest pursuant to the obligation on him under s 57 of the Act when issuing the attendance notices in question.

[22] The affidavit material sworn by the second respondent prior to November 2013 was in relatively general terms.  In his earlier (2011) affidavits, the second respondent swore that he adopted an approach, which was his usual approach, of applying the requirements of s 57 of the Act in making his decision to issue these attendance notices and that the written material before him made reference to the “public interest issues” to which the CRC had regard in deciding to refer the matter to the CMC.  The part of the 2011 affidavits which dealt with the second respondent’s regard to protecting the public interest when deciding to issue the attendance notices was brief.  At a separate part of his affidavit the second respondent had sworn that the CRC (of which he was a member) directed its attention to the requirement that it be satisfied that it was in the public interest to refer this crime to the CMC.  The 2011 affidavits were prepared at a time when these judicial review proceedings included a challenge to the decision of the CRC to refer the matter to the CMC.  The structure of the 2011 affidavits was essentially to detail the second respondent’s consideration of public interest matters once, in relation to the first of the decisions chronologically, and then adopt that in relation to the later decision to issue the attendance notices.

[23] The parts of the second respondent’s 2011 affidavits which deal with the consideration by the CRC of public interest matters are quite lengthy and detailed.  He swore that the CRC had had regard to the fact that a coercive hearing would inevitably involve intrusion upon the ordinary liberties, privileges and safeguards afforded to the persons caught up in the coercive process and, in particular, that those persons would have their ordinary right to silence abrogated and their right to claim privilege against self-incrimination overridden.  He swore that the CRC recognised this abrogation of rights was significant.  He swore that the CRC had regard to the potential mitigating effects of the direct use immunity and the fact that coercive hearings would be conducted “in secret”.  He considered several other matters, including forensic disadvantage to the defence, and forensic advantage to the prosecution, which might flow in any criminal proceedings which followed coercive hearings.  Although, he swore, the CRC was not able to meaningfully weigh this particular factor because, on the material available to it, it was not known what evidence would be obtained, and who might then be charged. 

[24] With affidavit material in that state, written submissions filed by the applicants on 18 June 2013 contended that the material did not show that, in deciding to issue attendance notices, the second respondent had given “proper genuine and realistic consideration” to the protection of the public interest as required by s 57 of the Act.  To the contrary it showed that he had considered the matter in a formulaic or routine way – giving lip service to the obligation.[7]  It was contended that there was no evidence that the second respondent had regard to the fact that both applicants were known to be suspects in relation to the killing under investigation.  It was also contended that there had been no separate consideration of public interest in relation to the decision to issue attendance notices – that is that there had been one consideration by the second respondent as a member of the CRC, in deciding to refer to the CMC, but no other real consideration in respect of the decision to issue the attendance notices, and separately, but as a consequence, it was said that consideration was not of the most recent material.

[25] Whatever the position before the affidavits of the second respondent filed on 5 November 2013, these arguments could not be sustained after they were filed.  The affidavits filed 5 November 2013 do show a separate, proper, genuine and real consideration of the matters which the second respondent was bound to consider, including that the applicants were suspects.

[26] In his affidavits filed 5 November 2013, the second respondent swore that he knew the applicants were suspected of involvement in the shooting under investigation at the time he decided to issue the attendance notices.  He swore further that generally he took the view that unusual circumstances had to be demonstrated to warrant suspects being required to attend coercive hearings, and that in particular he considered the implications for each of the applicants as suspects who were likely to be asked questions which might “tend to implicate them in the commission of the offence”.  He acknowledged that attendance at coercive hearings represented, “a serious, but well recognised, abrogation of both the right to silence and the privilege against self-incrimination”.  He swore that he proceeded on the basis that the references in s 57 of the Act to “fairness and the importance of protecting the public interest” extended to the recognition of individual rights, and the protections ordinarily afforded by the law, and that he weighed these considerations amongst others in making the decisions.  He swore that he had regard to the consideration that, after a coercive hearing, the applicants would have immunity against direct use of their answers, but not have protection against derivative use of their answers.  Further, that he had regard to the provisions of s 331 of the Act.  He swore that he had regard to, “the general issue whether requiring the applicants to attend and answer questions might confer a forensic disadvantage on the defence, or a forensic advantage on the prosecution, in the event of any criminal proceedings which might arise from the investigation”.  Once again he swore in relation to this last subject matter that it was difficult to give it meaningful consideration when he did not know what evidence would be obtained, and what charges laid.

 

(b)  Delay

[27] I record that the applicants abandoned reliance on contentions that (1) the “most recent and accurate information … at hand”[8] was not considered, and (2) it was relevant to consider, and was not considered, that due to the passage of time the matter ought to be referred back to the CRC for a decision to end the particular investigation under s 29(2) of the Act.[9]

[28] By their June 2013 written submissions the applicants contended that in acting fairly, pursuant to s 57 of the Act, the second respondent was required (and failed) to take into account the delay of two-and-a-half years between the referral of the crime to the CMC by the CRC and the decisions to issue attendance notices; any explanations for that delay; the impact of this delay upon the applicants, and whether issuing the attendance notices nearly three years after the murder would in fact further the objects of combating and reducing the incidence of major crime.  These matters were not pursued orally, although they were not distinctly abandoned.

[29] There is no evidence that any of the matters complained about was not considered.  In these proceedings, where reasons for the decisions have not been given, the applicants cannot point to a failure to mention a matter in reasons giving rise to an inference that the matter was not considered.  In that respect, and in that they cannot see the documents sworn to have been considered, they are at a disadvantage compared to most applicants for judicial review.  Nonetheless, there is an indication that delay generally was considered by the second respondent.  He swears that he did consider material (over which privilege was claimed) in a document which “provided an update of the matter since hearings were held at the Commission in 2009”.[10]  There was no evidence from either of the applicants that there was any material impact upon them because of the passage of twoandahalf years since the referral to the CMC.  It is therefore difficult to conclude that there was something relevant not considered by the second respondent.  In cross-examination at t 2-9 ll 20-35 and t 2-10 ll 1-15, the second respondent explained that he considered the attendance notices would have utility in terms of an ongoing investigation.  This was not in the context of examination about delay, but clearly enough, in circumstances where there had been delay, the second respondent considered there was utility in issuing the notices.  It was not put to him that there was not utility in doing so.  In fact, it was not put to the second respondent that he did not consider any of these delay based matters. 

[30] In any given case it is necessary to identify what is a relevant consideration for the purpose of this ground of review.  In Maycock v Queensland Parole Board[11] Jackson J stated the following in relation to the point, albeit in a case where the decision-maker was bound to give reasons, and had done so:

 

[62]The starting point is that a failure to take a relevant consideration into account constitutes a ground of judicial review only where the repository of the power in question is bound to take the consideration into account.

[63]Next, whether the decision maker is bound to take the consideration into account is primarily a matter of statutory interpretation which extends beyond the Act’s terms and into its subject matter scope and purpose, as well as the nature of the power. Where no limits are expressly imposed, the relevant considerations will be disputable in some cases.

[64]Still, the circumstances may be such that a particular factual dispute or issue, and the contentions made about it, become a relevant consideration. For example, in Peko-Wallsend, it was held that once it was concluded that the subject-matter, scope and purpose of the Act indicate that something is a vital factor to the exercise of the power, ‘it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the [decision-maker] has to hand.’ And: ‘It would be a strange result indeed to hold that a [decision maker] is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making [the decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.’” – (footnotes omitted)

[31] Here there is no statutory requirement to take into account these matters which essentially hinge around delay.  Nonetheless, I accept that delay since referral to the CMC, the reasons for it and consequences of it, might be matters to be considered in fairness, and in the protection of the public interest pursuant to s 57.  In circumstances where delay and utility generally were considered; where the second respondent is not obliged to give reasons for his decision; where public interest immunity has been claimed in respect of the documents which were before the second respondent; and where these matters were not put to the second respondent in cross-examination, I am not prepared to find that a relevant consideration was overlooked – cf Maycock [68][69]. 

 

9.  The Decision was an Improper Exercise of Power in that it Involved Taking into Account an Irrelevant Consideration

[32] This ground was abandoned by the applicants in their written submissions of June 2013 but was re-enlivened once the second respondent filed his supplementary affidavit on 5 November 2013 on the basis that in the more detailed discussion of how the second respondent considered matters, he disclosed that he had misinterpreted s 331 of the Act.  This misinterpretation was relied upon as being an irrelevant consideration or an error of law.  I think the better characterisation is under the rubric of error of law.  Whichever way the matter is considered, it is of no substance.

[33] The offending passage in the November 2013 affidavit is this:

 

“In weighing the potential disadvantages to the Applicants [deriving from the coercive nature of the hearings at which they were to attend] I also had regard to the provisions of section 331 of the Act and the reference in that section to the secrecy of proceedings as a way of addressing possible prejudice to a fair trial for an accused person.  I was well aware that hearings involving the Applicants as witnesses would be conducted in private.”

[34] I think the proper construction of s 331(2) of the Act is that it obliges the CMC to conduct any coercive hearing as a closed hearing and make non-publication orders if there is a proceeding of the type contemplated by s 331(1).  That is, s 331(2) will apply if the person questioned has been charged, or if there is otherwise a Court (or similar) proceeding which is relevant to the subject matter of the questioning.  Section 331(2) is therefore inapplicable to an examination of the applicants:  there is no relevant proceeding.  And so it is established that the second respondent erred in having regard to s 331 when considering the protection of the public interest within the meaning of s 57 of the Act as part of his determination to issue attendance notices to the applicants. 

[35] This error must be seen in proper context.  The Act obliged the second respondent to have regard to the protection of the public interest in deciding to issue attendance notices.  It did not specify what he was to consider in having that regard.  In fact, he considered many matters, some of which favoured issuing attendance notices, and some of which did not.  One of the matters he considered, which did not favour the issuing of the notices, was that the rights and privileges of the applicants would be abrogated or eroded at coercive hearings.  Subsidiary to that consideration, he considered provisions of the Act which mitigated the harshness of the effect of that abrogation.  In the course of that subsidiary consideration he mistook the effect of one provision of the Act: s 331(2).

[36] However, it is plain from s 177 of the Act that CMC hearings generally are not public.  By s 177(2)(a)(i) there may only be a public hearing in a crime investigation where it is considered that would make the hearing more effective and where that would not be unfair to a person or contrary to the public interest.  There are numerous other provisions in the Act, such as s 179 and s 180(3), which allow the officer presiding at a hearing to give a direction about who may be present at the hearing, and which allow prohibition of the publication of answers given at hearings. 

[37] The effect of the second respondent’s error as to the applicability of s 331 is not entirely clear from the passage in his affidavit (set out above).  At its highest for the applicants, the second respondent acted on the mistaken basis that it would be mandatory for the applicants’ coercive hearings to be held in private.  In fact it would not be mandatory, but the hearings would be private unless the presiding officer thought that it would be more effective to have a public hearing, and also thought that a public hearing would not be unfair to any person (including the applicants), or contrary to the public interest.

[38] As I say, I think this point is better categorised as an error of law, than as the taking into account of an irrelevant consideration.  As an error of law, I think it is one which is so unimportant as not to provide grounds for review – in the words of Mason CJ in Australian Broadcasting Tribunal v Bond,[12] “A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.”  In the same case Toohey and Gaudron JJ said, “Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.”[13] 

[39] Even if the error can correctly be categorised as the second respondent having taken into account an irrelevant consideration, my view is it does not give grounds for judicial review.  The effect of s 331(2) is not something which the Act forbids the second respondent to take into account.  Quite to the contrary, it formed a subsidiary part of the consideration of one factor, which factor itself was one of many subsidiary parts to a consideration which is required by s 57 of the Act – regard to the protection of the public interest.[14] 

 

Miscellaneous

[40] Another point was taken in reliance on the information which was given by the second respondent in his affidavits filed 5 November 2013.  This time the focus of the argument was the second respondent’s swearing that he had regard to s 197 of the Act, which prevented the use of the applicants’ answers in a coercive hearing against them.  He went on to say, “I also had regard to the consideration that whilst the Applicants would be protected from the use of their answers in other proceedings, this does not extend to derivative use of information obtained from them for the purposes of the investigation.  This was an important consideration in assessing the utility of requiring the Applicants to attend.”  The applicants complain that in reasoning thus the second respondent did not consider that where a suspect is questioned about a specific offence, the derivative use made of his evidence may very well be almost as damaging to him as its direct use. 

[41] Allied with this point is complaint about a matter which the second respondent expressed in his 2011 affidavits, and during cross-examination: that he found it difficult to make a meaningful consideration of the forensic disadvantage to the defence or forensic advantage to the prosecution in any criminal proceedings which might arise after the investigation because that involved speculation as to what evidence would be obtained and who would be charged.

[42] It was difficult to tell from the submissions whether these points were part of a submission that the second respondent failed to consider the protection of the public interest or whether there was an independent basis for them, ie., that they were relevant considerations not taken into account.  However the points are characterised, they are not good grounds for judicial review of the decisions.  Section 57 of the Act prescribed that the second respondent must have regard to the protection of the public interest in making the decision to issue the attendance notices.  Beyond all doubt he did so.  Looked at one way, in making these complaints, the applicants seek to quarrel with the merits of the decision reached after a perfectly valid process.  I thought this was particularly apparent when the second respondent was cross-examined about both these topics.  Looked at from the point of view of failing to take into account a relevant consideration, the point must fail, for it is not shown that the second respondent failed to take into account something which the Act required him to take into account, nor even something which, while not specified by the Act, was a vital factor to the exercise of power – cf [64] Maycock (above).  In advancing this argument, the applicants are involving themselves minutely in the expressed reasoning process to agitate a concern which is entirely subsidiary to the matters which the second respondent was bound to take into account.[15]

 

12.  The Decision Involved an Error of Law

[43] This ground seemed originally little more than a catch-all, and the outlines of argument filed on behalf of the applicants in June 2013 advanced nothing in support of it which was substantively different from that argued in relation to ground 7 (above).  However, seemingly the decision in X7 v Australian Crime Commission & Anor[16] breathed new life into the applicants’ contentions and oral argument largely focussed on propositions said to derive from that case.  The following passage in the joint judgment of Hayne and Bell JJ at [105] was particularly relied upon:

 

“The notion of an accused person’s ‘right to silence’ encompasses more than rights that the accused has at trial.  It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial.”

[44] In Lee v New South Wales Crime Commission[17] Keane and Gageler JJ said this:

 

What is often referred to as a ‘right to silence’ is rather ‘a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin’, which differ in ‘incidence and importance, and also as to the extent to which they have already been encroached upon by statute’. The most pertinent for present purposes are: the right of any person to refuse to answer any question except under legal compulsion; the privilege of any person to refuse to answer any question at any time on the ground of selfincrimination; the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played; and the right of a person charged with a criminal offence to a fair trial, ‘more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’.” – [318] (footnotes omitted).

[45] The argument for the applicants began with the proposition that they had the right (apart from statute) to remain silent when questioned and the right, when questioned, to refuse to answer on the grounds that their answers might tend to incriminate them.  Further, that as they were suspects, those rights were of particular value to them in circumstances where it was anticipated that they would be asked about the offences they were suspected of committing.  All of that may be accepted. 

[46] It was then submitted that the Act had not by express words, or necessary intendment, abrogated these rights in the case of persons suspected of committing a crime, but not yet charged with having done so.  Section 331 of the Act was called in aid by way of contrast.  It provides that the CMC may conduct an investigation or hearing “despite any proceeding that may be in or before a court”.  At s 331(4) it is provided that a criminal proceeding commences when a person is charged.  This was said to show that the legislature had abrogated the rights of persons charged with an offence, but not persons suspected of having committed an offence.  This argument is misconceived. 

[47] Section 331(1) of the Act provides:

 

The commission may do any or all of the following, despite any proceeding that may be in or before a court, tribunal, warden, coroner, magistrate, justice or other person—

(a)commence, continue, discontinue or complete an investigation or hearing or any part or aspect of the investigation or hearing;

…”

[48] Section 331 of the Act was introduced to remove, “the protection afforded an accused person discussed in Hammond which categorised an extra-curial inquiry as contempt of court if it sought to investigate the subject-matter of a pending charge.”[18]  Hammond’s case proceeded on the assumption that the statute there did take away the privilege against self-incrimination, but, even so, did not authorise conduct by a Royal Commission which would, in the absence of statutory authority, interfere with the administration of justice so as to amount to contempt of Court – see [32] of the judgment of French CJ in Lee.  That s 331 of the Act deals with those who have been charged, and not with those who are suspects, reflects its history as a response to the decision in HammondThere was no need to make any express provision in relation to suspects – if the Act otherwise abrogated their right to refuse to answer questions and their right to rely upon the privilege of selfincrimination, questioning them could not amount to something which would be a contempt of Court.

[49] In Witness A it was held that the Act did in fact abrogate the privilege against self-incrimination at the type of hearing at which the applicants are required to attend.  This was held to be a consequence of the plain words of s 190 of the Act:

 

“(1)A witness at a Commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.

(2)The person is not entitled –

(a)to remain silent; or

(b)to refuse to answer the question on a ground of privilege, other than legal professional privilege.”

[50] The dictionary schedule to the Act defines privilege as follows:

 

privilege, in relation to an answer, information, communication or document, or thing means –

(a)in the context of a crime investigation or the intelligence or witness protection functions –

(i) legal professional privilege; or

(ii) self-incrimination privilege; or

...”

[51] In Witness A it was held that these words are effective to abrogate the right to remain silent and the privilege against self-incrimination, and in my view that is plainly right.  There are several cases to the same or similar effect.[19]  There is nothing in either X7 or Lee which changes this position.  The rule is no different, and no more express words are needed, because the applicants are suspects.  In no case can there be a valid claim to privilege against self-incrimination unless the answer to a question asked would tend to incriminate the person who answers.[20]  The class of those having a valid claim to the privilege is not limited to persons suspected of having committed a crime, but such persons must be a conspicuous component of that class.  Someone who did not fear that they might be charged with an offence (either that under investigation or another offence) could have no valid claim to the privilege.  In the case of Sorby v The Commonwealth it was clear beyond doubt that those questioned were suspected of crimes and there is no suggestion in that case that a clear statutory abrogation in general terms would not have applied to them, quite to the contrary.  No doubt is cast on this case in either of the decisions X7 or Lee.

[52] The applications are dismissed.  I will hear the parties as to costs.

Footnotes

[1] Established by s 274 of the Act.

[2] Younan & Ors v Callanan & Ors [2009] QSC 241.

[3] Witness A v Crime & Misconduct Commission [2005] QSC 119. See also numerous statements to this effect in relation to other such statutes, for example Hammond v The Commonwealth (1982) 152 CLR 188, above, at p 198 per Gibbs CJ; p 203 per Brennan J and p 206 per Deane J; X7 v Australian Crime Commission [2013] HCA 29 at [104] and Lee v New South Wales Crime Commission [2013] HCA 39, [1], [20] and [24].

[4] [2009] 2 Qd R 112.

[5] Accused A (above) [48]-[51].

[6] Hamdan v Callanan; Younan v Callanan [2013] QCA 104.

[7] See Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291.

[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 44.

[9] t 2-21.

[10] Paragraph 18, Court Document 7.

[11] [2013] QSC 302.

[12] (1990) 170 CLR 321, 353.

[13] Above, p 384, see generally Judicial Review of Administrative Action, 4th ed, Aronson, Dyer and Groves, p 218.

[14] See Aronson, Dyer and Groves, (above), p 282-283 and the cases cited there.

[15] Wu Shan Liang (above), at p 272, “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

[16] [2013] HCA 29.

[17] [2013] HCA 39.

[18] Witness A v Crime & Misconduct Commission, (above), [41], and see [37] of that same judgment as to the legislative history of s 331: the Explanatory Notes to the Crime and Misconduct Bill 2001 state that it is intended to override the effect of the decision in Hammond.

[19] Callanan v B [2005] 1 Qd R 348; Witness D v Crime & Misconduct Commission [2008] QSC 155 and Witness C v Crime & Misconduct Commission [2008] QSC 196.

[20] Whatever the difficulties in practically ascertaining that this is the case – see Sorby v The Commonwealth (1983) 152 CLR 281, 289.

Close

Editorial Notes

  • Published Case Name:

    Younan v Crime Reference Committee & Anor; Hamdan v Crime Reference Committee & Anor

  • Shortened Case Name:

    Younan v Crime Reference Committee

  • MNC:

    [2014] QSC 24

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    07 Mar 2014

Litigation History

Event Citation or File Date Notes
Primary Judgment [2014] QSC 24 07 Mar 2014 -
Appeal Determined (QCA) [2014] QCA 304 28 Nov 2014 -
Application for Special Leave (HCA) File Number: B3/15 02 Jan 2015 -
Application for Special Leave (HCA) File Number: B2/15 02 Jan 2015 -
Special Leave Refused [2015] HCATrans 271 16 Oct 2015 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)