Witness A v Crime and Misconduct Commission
[2005] QSC 119
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- Notable Unreported Decision
- Witness A v Crime and Misconduct Commission[2005] QSC 119
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Witness A v Crime and Misconduct Commission[2005] QSC 119
Witness A v Crime and Misconduct Commission[2005] QSC 119
SUPREME COURT OF QUEENSLAND
CITATION: | Witness A v Crime and Misconduct Commission [2005] QSC 119 |
PARTIES: | WITNESS A |
FILE NO/S: | BS 2407 of 2005 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 11 May 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 May 2005 |
JUDGE: | White J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – Crime and Misconduct Commission – statutory requirement that examinee answer questions – whether the Crime and Misconduct Act 2001 abrogates the privilege against self-incrimination and the protection afforded to an accused person under investigation for a pending charge Bankruptcy Act 1966 (Cth), s 69 Crime and Misconduct Act 2001 (Qld), s 4, s 26, s 82, ss 176-177, ss 179-181, s 190, ss 194-195, s 197, s 274, s 331 Crimes (Confiscation) Act 1989 (Qld) Criminal Proceeds Confiscation Act 2002 (Qld) Royal Commission (Police Service) Act 1994 (NSW), s 38 A v Boulton (2004) 136 FCR 420, cited Bayeh v Attorney-General (NSW) (1995) 82 A Crim R 270, cited Commission of Taxation v De Vonk (1995) 61 FCR 564, cited Environmental Protection Agency v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, cited Hammond v The Commonwealth (1982) 152 CLR 188, not followed HKSAR v Lee Ming Tee [2001] 1 HKLRD 590, cited Re Gordon (1998) 80 ALR 289, not followed Sorby v The Commonwealth (1983) 152 CLR 281, not followed Schultz v the Crime and Misconduct Commission No 874 of 2003, unreported decision of 31 October 2003, cited |
COUNSEL: | Mr N J Macgroarty for the applicant Mr J A Logan SC and Ms K Mellifont for the respondent |
SOLICITORS: | Robertson O'Gorman for the applicant Official Solicitor to the Crime and Misconduct Commission for the respondent |
- The applicant seeks leave to appeal against the decision of the presiding officer of the Crime and Misconduct Commission (“the Commission”) made on 18 March 2005 in the course of a Commission crime investigation hearing. The applicant is described in these proceedings as “Witness A” to give practical effect to the requirement in s 195(9) of the Crime and Misconduct Act 2001 (“the Act”) that such applications are to be heard in closed court.
- The applicant had declined to answer certain questions relating to other persons and their involvement with illegal drugs in circumstances where he had been charged conjointly with those other persons of unlawfully supplying the dangerous drug methylamphetamine. This application raises matters discussed in Hammond v The Commonwealth (1982) 152 CLR 188 and, to a lesser extent, Sorby v The Commonwealth (1983) 152 CLR 281 namely, whether an inquisitorial inquiry of the type being conducted by the Commission into the very matter the subject of the charge against Witness A constitutes an interference with the due administration of criminal justice in his case (Hammond); and whether the common law right of privilege against self-incrimination has been abrogated (Sorby). Whilst these large questions lie behind the application it is of narrower focus since the Act purports to abrogate the privilege against self-incrimination, not seriously contested by Witness A, and to exclude the operation of Hammond. It is, therefore, a question of statutory construction and in the light of what occurred at the Commission hearing.
The procedure
- The application came before Douglas J in the applications list on 14 April 2005. He made orders by consent that the applicant be identified in court documents as “Witness A” and the material to be relied upon be in an agreed book of facts provided confidentially to the court and consisting of the transcript of proceedings before the Commission, the attendance notice issued to the applicant, the QP9 and the bench charge sheets relating to charges currently faced by the applicant. The agreed book of facts was to be filed in a sealed envelope appropriately marked and outlines of submissions were ordered to be exchanged and filed. The hearing was adjourned to a date to be fixed to be heard expeditiously. It was heard in the civil list of hearings and trials. The application for leave to appeal was treated as the hearing of the appeal.
The statutory scheme
- The broad purpose of the Act is to combat and reduce the incidence of major crime and to improve the integrity of and reduce the incidence of misconduct in the public sector, s 4. The inquiry, the subject of this application, concerns the former of those purposes. It is, therefore, unnecessary to refer to the second purpose in respect of which different provisions apply.
- The Act seeks to achieve its purposes by establishing a permanent Commission, the Crime and Misconduct Commission, to combat major crime which is given investigative powers not normally available to the police service. The Commission investigates major crime, defined as criminal activity involving an indictable offence punishable on conviction by a term of imprisonment of not less than 14 years, referred to it by the Reference Committee, a body established by s 274.
- The Commission performs its crime investigation function, inter alia, by gathering evidence for the prosecution of persons for offences. It also may liaise with and provide information to and receive information from other law enforcement agencies and prosecuting authorities within the State and within Australia, s 26.
- The Commission may give evidence of or information about a possible offence against the law of the State, Commonwealth or of another State to an entity or a law enforcement agency as the Commission considers appropriate.
- The chairperson of the Commission may issue a notice – an attendance notice – requiring a person to attend at a Commission hearing at a stated time and place until excused, relevantly, to give evidence, s 82. A person does not, by giving evidence at a hearing in compliance with an attendance notice
“(a)contravene a provision of an Act or a law imposing a statutory or a commercial obligation or restriction to maintain secrecy in relation to the evidence, document or thing; or
(b)incur any civil liability in relation to the evidence, document or thing.” s 82(3)
- Chapter 4 concerns hearings and deciding claims of privilege or excuse. The Commission may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions which, generally, will not be open to the public, ss 176, 177. The presiding officer conducting a closed hearing may give a direction about who may be present, s 179. The hearing must be conducted “quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues ...”, s 180. The presiding officer is not bound by the rules of evidence and may decide the procedures to be followed.
- A witness may be legally represented at a hearing and may be examined, cross-examined or re-examined on any matter the presiding officer considers relevant, s 181. Chapter 4 Division 3 concerns a refusal to answer in the context of a crime investigation. By s 190
“(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer.
Maximum penalty—85 penalty units or 1 year’s imprisonment.
(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.”
There follows subsection (3), not here relevant, concerning a claim of legal professional privilege. “Privilege” in relation to an answer is defined in Schedule 2 – the dictionary – to mean
“... in relation to an answer ...
(a) in the context of a crime investigation—privilege recognised at law on the ground of—
(i) self-incrimination; or
(ii) legal professional privilege; or
...
and ... includes a claim on the ground of confidentiality.”
- Chapter 4 Division 4 subdivision 1 concerns the criteria which a presiding officer must apply when making a decision about a claim of privilege in a crime investigation. Section 194 insofar as it relates to a refusal to answer questions provides
“(1) This section applies if a person claims to have a reasonable excuse, including a reasonable excuse based on a claim of legal professional privilege, for not complying with a requirement made of the person at a commission hearing—
(a) to answer a question put to the person; or
(b) ...
(1A) The presiding officer must decide whether or not there is a reasonable excuse.
(1B) The presiding officer must decide, after hearing the person’s submissions—
(a) that the requirement will not be insisted on; or
(b) that the officer is not satisfied the person has a reasonable excuse.
(2) If the presiding officer decides, after hearing the person’s submissions, that the person has a reasonable excuse based on a claim of privilege against self-incrimination for not
complying with the requirement—
(a) the presiding officer may require the person to comply with the requirement; and
(b) section 197 applies in relation to the answer ...
(3) If the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement, the presiding officer must—
(a)give the person reasons for the decision; and
(b)require the person to answer the question ... subject to the person’s right of appeal under section 195; and
(c)advise the person that the person may appeal the presiding officer’s decision to the Supreme Court within the time allowed under section 195.
...”
- “Reasonable excuse” is not defined but it might include, at the least, an excuse a witness summonsed as a witness in a court might rely on. It is unnecessary to explore the reach of the expression because Witness A gave only two excuses for declining to answer questions put to him – that the answer might incriminate him and that there was a pending criminal charge, bringing into play both Sorby and Hammond.
- Section 197 concerns restrictions imposed on the use of self-incriminating answers and provides relevantly
“(1)This section applies if—
(a)before answering a question put to the person by the commission or a commission officer ... the person claims that answering the question or producing the document ... might tend to incriminate the person; and
(b)apart from this Act, the person would not be required to answer the question ... if the person claimed the answer ... would tend to incriminate the person; and
(c)the person is required to answer the question ...”
By s 197(2)
“The answer ... is not admissible in evidence against the person in any civil, criminal or administration proceeding.”
The answer is admissible with the consent of the person or if the proceeding relates to a false answer, an offence under the Act or contempt of the person conducting the hearing. “Proceeding” is not defined but it can be taken to refer to proceedings before a court, tribunal, warden, coroner, magistrate, justice or other person, s 331.
- In order to streamline a Commission hearing, s 197(5) and (6) provides for what might be described as blanket rulings
“(5)In a commission hearing, the presiding officer may order that all answers or a class of answer given by a person ... is to be regarded as having been given ... on objection by the person.
(6) If the presiding officer makes an order under (5), the person is taken to have objected to the giving of each answer ... the subject of the order.”
- Finally, s 331 provides
“(1) 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;
(b)give a report in relation to the investigation or hearing or any part or aspect of the investigation or hearing;
(c)an act or thing that is necessary or expedient for a purpose mentioned in paragraph (a) or (b).
(2) If the proceeding is a proceeding for an indictable offence and is conducted by or for the State, the commission may, to the extent to which the commission considers it necessary to do so to ensure that the accused’s right to a fair trial is not prejudiced—
(a)conduct any hearing relating to an investigation as a closed hearing during the currency of the proceeding; or
(b)give a direction under section 202 to have effect during the currency of the proceeding.
(3) Subsection (2) does not apply—
(a)if the proceeding is a committal proceeding—before any evidence for the prosecution is taken in the committal proceeding; or
(b)otherwise—after the proceeding stops being a proceeding for the trial of a person before a jury.
(4) This section has effect whether or not the proceeding commenced before or after the commission’s investigation started and has effect whether or not the commission or a commission officer is a party to the proceeding.”
This provision purports to override the decision in Hammond that it is a contempt of court to continue with an inquiry dealing with the same subject matter as the subject of a charge pending in the courts.
The grounds of appeal
- A person may appeal against a decision of a presiding officer given pursuant to s 194(3)(b) if the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement to answer. The person must apply for leave to appeal within seven court days after being given the presiding officer’s reasons. The court may grant leave to appeal only if the court is satisfied the appeal has a “significant prospect of success or there is some important question of law involved” s 195(2). Witness A applied for leave within time. The application for leave to appeal and the appeal have been heard together. The grounds of appeal, as required by s 195(3) are as follows
“2. ...
(a)There are important questions of law involved, namely:
(i)The questions asked by both Counsel Assisting and the Presiding Officer were directly relevant to the issues to be litigated on the hearing of the aforementioned charge of unlawfully supplying a dangerous drug;
(ii)In these circumstances there is a real risk that the administration of criminal justice will be interfered with if the Applicant were required to answer such questions;
(iii)The answering of such questions is likely to prejudice the Applicant in his defence of the charge preferred against him;
(iv)The requirement of the Applicant that he answer the questions constitutes a contempt of Court;
(b)In the event that leave were granted, the appeal has a significant prospect of success in that:
(i)In exercising his discretion pursuant to Section 194(2), the Presiding Officer erred in so much as he appeared to originally recognise that the Applicant’s claim of privilege against self-incrimination was a valid claim in the circumstances by inviting Counsel Assisting to ask questions which did not touch upon the circumstances of the charge preferred against the Applicant, but thereafter decided the Applicant was required to answer questions about the Applicant’s knowledge of matters or persons pertaining to illegal dangerous drugs;
(ii)The Presiding officer gave no, or no adequate, reasons for deciding that the Applicant’s claim of privilege against self-incrimination did not in the circumstances constitute reasonable excuse for not answering the questions asked by either or both the Presiding Officer or Counsel Assisting.”
The respondent concedes that ground (a) raises an important question of law but contends that (b) is not competent since there is no right of appeal against a decision made under s 194(2)(a).
The charge
- On 15 October 2005 a joint operation code-named “MEXICO” commenced between the Australian Crime Commission, the Commission, and Queensland Police Service. The operation concentrated its investigations into the illicit drug activities between a number of named persons. On 28 January 2005 police executed a search warrant at Witness A’s residence. He decline to participate in a record of interview, was arrested, conveyed to the Brisbane watchhouse, formally charged and released on bail. He was charged that on 4 January 2005 at Brisbane he unlawfully supplied a dangerous drug, methylamphetamine, to another. He was charged conjointly with X, Y and Z. During the operation police investigators utilised electronic and physical surveillance, intelligence assessment and telephone interceptions against the targets. It appears that Witness A is charged as a consequence of an analysis of intercepted telephone calls between him and his co-accused X, Y and Z which suggested that he was involved in the supply of 7g of methylamphetamine to a friend on 4 January 2005.
The hearing – 15 March 2005
- On 10 March 2005 John Callanan, Assistant Commissioner Crime of the Commission, issued an “Attendance Notice Crime Investigation” pursuant to s 82 of the Act requiring Witness A to attend at a Commission hearing on 15 March 2005 for the purpose of giving evidence relating to matters set out in the Schedule to the Notice and to produce documents specified in the Schedule. The Schedule sought evidence of Witness A’s knowledge of involvement by X, Y and their associates in offences of trafficking, supplying, producing, possessing or otherwise dealing in dangerous drugs and offences against the Crimes (Confiscation) Act 1989 or the Criminal Proceeds Confiscation Act 2002 of money laundering.
- Witness A attended the hearing on 15 March 2005 with his counsel, Mr Macgroarty and his solicitor. After some preliminary matters before Mr Callanan, the Presiding Officer, they were invited into the hearing room. The persons permitted to be present, it being a closed hearing, were set out in exhibit 13 which the Presiding Officer told them they could access. The transcript does not record that they sought to do so then and exhibit 13 was provided on 4 May. Amongst those present were two police officers who had provided statements for the brief of evidence in the charge against Witness A. Witness A asked the Presiding Officer if he would identify three particular men in the hearing room which he declined to do on the ground that it was unnecessary.
- The Presiding Officer explained to Witness A the purpose of the hearing and how it would proceed. He was told that the Commission may pass information that it gathered to other law enforcement agencies such as Queensland Police Service or the State prosecuting authority. He told Witness A that there was no right to silence and he was required to answer questions posed to him. The Presiding Officer then said,
“There is an exception to that and it’s this. That a witness can avoid answering questions if the witness has some reasonable excuse. Now I’m not going to try take up time trying to explain what might or might not be a reasonable excuse in your case. Obviously it varies from witness to witness and it varies according to the circumstances. What you need to understand though is this. If you’re asked a question and you don’t wish to answer it and you think or perhaps your legal representatives think you have some good reason not to answer, that needs to be raised with me. You can raise it yourself. Mr Macgroarty can raise it okay. The fundamental thing is one you don’t wish to answer, and two you think you have some reasonable excuse for not answering. If we do go down that track I’ll go into the law in relation to all of that in more detail. At the end of the day I explore with you and with your Counsel the reasoning behind the claim of a reasonable excuse, I then decide whether or not a reasonable excuse such that you can avoid answering a question or questions is made out.” Exhibit 1 pp 14-15
The Presiding Officer proceeded to elaborate on the consequences of refusing to answer questions without a reasonable excuse. He said,
“In a normal court however, a witness is not ordinarily required to answer questions if in answering those questions they are going to refer to some involvement they have had themselves in some criminal activity. The lawyers give it a fancy name, it’s called the privilege against self-incrimination. I sometimes put it this way. In a normal court people aren’t required to dob themselves in. Well that normal court rule doesn’t apply here. Here, people who attend as witnesses may well be required to answer questions even though that means that they are referring to some involvement that they have had themselves in unlawful activity. Now I’m particularly mentioning it in your case because we’re well aware you’re currently facing a charge in relation to drugs supply, okay. It may be and I am not entirely certain that it is going to happen but it may be that you’ll be asked questions in relation to the events that gave rise to that charge. Here you are required by law to answer those questions and indeed as I’ll mention in a moment you’re required to answer all questions that you’re asked here truthfully. It may be that the questioning will extend to suggestions of involvement on your part in other illegal activity. Again, it may well be that you’ll be required as you would be in a normal court to answer those questions.” Exhibit 1 p 15
He told Witness A that there were penalties for not answering.
- The Presiding Officer explained the effect of s 197 concerning the prohibition on the use of information obtained from self-incriminating answers in legal proceedings. The Presiding Officer told Witness A that there needed to be an objection taken before he answered the question he sought to challenge and explained that there were provisions in the legislation which “allow [him] to make orders and give directions which make it unnecessary for an objection to be taken to each and every questions you’re asked,” Exhibit 1 p 16. Witness A asked about the correct form and was told he should raise his hand or his counsel could take the objection or, more likely, Counsel Assisting would “flag it as an issue”.
The Presiding Officer continued
“It may well be that all of this becomes unnecessary because on the indications I have before we proceed very much further, I am likely to make some orders and give some directions that provide you with the protection that I have been talking about. When I say protection I mean this. Because what you say here can’t be used against you, there is no incentive for you to hold anything back to in anyway to try and play down anything or simply be untruthful to try to lie.” Exhibit 1 p 16.
Mr Macgroarty raised difficulties in complying with the notice to produce documents, and the hearing was adjourned to 18 March 2005.
The hearing - 18 March 2005
- On 18 March Witness A gave some evidence about a loan made by 123 Company Pty Ltd to co-accused X. 123 Company is a company in which Witness A said that he had invested significant sums of money but was neither a director nor shareholder. He said that co-accused X was a friend who had asked on a social occasion if he could borrow money from 123 Company and if Witness A would help. The loan was for $100,000 made about three years ago for two months at 5 per cent interest without security. It had not been repaid. Witness A told the Commission hearing that he could not recall what he was told was the purpose of the loan. The questioning about 123 Company and the loan is recorded at Exhibit 1 at pp 29-46. Counsel Assisting then asked
“Are you aware of any involvement on the part of [co-accused X] in the production, distribution, supply or otherwise the dangerous drug known as Methylamphetamine or speed or any of the various permutations?”
Witness A responded
“I’d like to claim the privilege against self-incrimination please.” Exhibit 1 p 46.
The Presiding Officer stated
“Alright, I don’t think I need to hear submissions. This is on the basis that the answer you give may have a tendency to incriminate you. I take it that is the basis on which you raise the issue so I’m going to now attend to the technicalities I referred to when you were last here to ensure that answers you give in relation to questions asked of you in respect of drugs, alright, are not able to be used against you in any other proceedings. Alright. So I make an order that all answers given by this witness to questions asked of the witness in relation to any involvement of the witness in offences against the [D]rugs [M]isuse [A]ct are to be regarded as having been given on objection by the witness. That means it’s as if we went along and Mr WALKER [Counsel Assisting] asked you questions and perhaps Mr Macgroarty objected on your behalf on the grounds of the privilege against self-incrimination I had, directed you to answer those questions. That’s what I need to do now, I direct you to answer or require you I’m sorry to use the terms of the legislation, require you to answer such questions.” Exhibit 1 pp 46-7
- Mr Macgroarty said
“And I raise objection on the basis that he has a current charge against him pending in the courts. Specifically charging him with a drug offence sir.” Exhibit 1 p 47
The Presiding Officer responded
“Well that raises a different issue to the one that’s ordinarily I think referred to as the Hammond issue.”
Mr Macgroarty agreed. I interpolate to suggest that there seems to be an error in the transcript because it is clear that both the Presiding Officer and counsel understood the objection to be the Hammond objection. The transcript might be read as if a full stop were inserted after “issue” or a dash and “to” is deleted. The Presiding Officer observed that the Act specifically excluded the operation of the principle enunciated in Hammond. Mr Macgroarty responded that that was an interpretation of the Act and was why he was putting on the record his objection on behalf of his client. The Presiding Officer noted s 331 which had the effect of overriding the principles expressed in Hammond and relied on a decision of Muir J in Schultz v The Crime and Misconduct Commission No 874 0f 2003, unreported decision of 31 October 2003. He required Witness A to answer questions “even if they relate to the specific matter which is the subject of the charge,” Exhibit 1 p 47. Witness A then sought to have clarified that he had a right to have that decision tested by appeal. The Presiding Officer granted Witness A a short adjournment to confer with his legal representatives.
- When the hearing resumed Mr Macgroarty said that he had no submission beyond his objection taken previously on the basis that Witness A was currently charged with a drug offence. The Presiding Officer elaborated on his earlier reasons.
He said,
“I just need, I need to I guess be a little more fulsome in what I said in response to your submissions because it seems to me that the objection you raise insofar as it relates to questions being directed to your client in relation to the matters which are presently the subject of charges, goes beyond the privilege question and depends on the principles enunciated in Hammond and that, the way the Act is structured really represents a claim of reasonable excuse not to answer.” Exhibit 1 p 50
Mr Macgroarty interrupted stating that Witness A had voiced his refusal to answer questions as a claim of privilege against self-incrimination and having done so he had “a reasonable excuse for not answering until that legal question had been tested which he wishes to test”. This suggests some misapprehension. The Act makes a distinction between a reasonable excuse based on a claim of self-incrimination and some other reasonable excuse. Section 194(2) is concerned with a claim of privilege against self-incrimination and brings into play the provisions of s 197. Section 194(3) is concerned with other reasonable excuses which, if not upheld, the witness may test by appeal to this court.
- There followed some discussion between Mr Macgroarty and the Presiding Officer as to the proper framework for setting up an appeal to this court.
- Counsel Assisting then played a recording of an intercepted telephone call between Witness A and co-accused X. Witness A identified the voices. The transcript reads as Witness A saying on the recording
“Heh quick question. A mate of mine’s just got busted is it Syd-oh New Castle with 200 boxes. ... Is he likely – Is he likely to get bail for that?” Exhibit 1 p 56
Counsel Assisting asked “who is the mate of yours?” and Witness A claimed privilege against self-incrimination. Counsel Assisting then observed that in relation to drug matters Witness A had an order which protected him effectively from all incriminating answers in “mostly drug matters” being used against him so that, in effect the privilege issue had already been considered. Witness A said that he wished to have that ruling tested by a higher authority. The Presiding Officer responded
“The position we now reached is that an objection was taken to answering questions in relation to any involvement you may have had with drugs. You have been provided with in effect protection against your answers here in respect of that topic being admissible against you. In that context however a second issue arose and that we are now agreed is characterised as a claim on your part to have a reasonable excuse not to answer questions relating to the matters which are the subject of the charge against you. The question at the moment doesn’t seem to me on the face of it to have any bearing on the issue of the events on or about the fourth of January 2005. See the point of raising the objection on the grounds of self-incrimination ... is to obtain protection against your answers being used against you.” Exhibit 1 p 57.
- The Presiding Officer could not see how questions about the “mate” being caught with 200 boxes could be relevant to the charge of supply on 4 January 2005 but observed that it was for Witness A and his legal advisors to understand how all the matters fitted together. Mr Macgroarty submitted that the parties’ provisions in s 7 of the Criminal Code suggested that any question about drugs might be connected and said that this was a reasonable excuse which Witness A wished to have tested. The Presiding Officer was satisfied that this was an objection independent of that of self-incrimination.
- There was debate about the reach of surrounding events into the 4 January 2005 charge. After further discussion between Witness A and the Presiding Officer a question which would allow reasonable excuse to come before this court was formulated by the Presiding Officer
“Have you had any involvement in and do you have any knowledge of any involvement by others in the commission of offences relating to the supply of dangerous drugs.” Exhibit 1 p 64
Witness A responded
“I claim the privilege against self-incrimination.”
The Presiding Officer responded
“Well that’s in fact not what you’re doing. What you’re doing is claiming to have a reasonable excuse not to answer.”
Mr Macgroarty said “That’s what he’s claiming”. But it seems that the question, not unreasonably, was construed as having two aspects. The first related to Witness A’s own involvement which calls in the privilege against self-incrimination and might encompass the charge of supply and the second related to others which might relate to both self-incrimination and the charge. However what was involved seems to have been understood sufficiently.
- After the tapes were changed the Presiding Officer observed
“... I’ve heard submissions partly from you and more particularly from Mr Macgroarty and also from Mr Walker and in accordance with section 194 subsection 1B I decide that I am not satisfied that [Witness A] has a reasonable excuse – I have already given short reasons and I don’t intend to expand further on them however I incorporate them for the purpose of dealing with the necessary formalities at this point. I advise [Witness A] that he has a right of appeal against my decision to the Supreme Court. In effect it’s a right to apply for leave to appeal within a period of seven days from today and it accordingly seems to me that it’s not been submitted to me that there are, there are other areas that can be explored without your reasonable excuse issue being decided...” Exhibit 1 p 66.
Discussion – Ground 2(b)(i) and (ii)
- It is convenient to consider the second ground first. The ambit and history of the common law privilege against self-incrimination is discussed by Gibbs CJ in Sorby at 288-90 and more recent authorities are discussed at 290-295; and by Mason, Wilson and Dawson JJ at 309-311. See also the discussion by McHugh J in Environmental Protection Agency v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 543-6 in the context of privilege from exposure to a penalty or forfeiture; and Hill and Lindgren JJ in Commission of Taxation v De Vonk (1995) 61 FCR 564 at 579 considering the Commissioner of Taxation’s powers of interrogation. The privilege is deeply ingrained in the common law. Mason, Wilson and Dawson JJ ruled at 309
“The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless legislative intent to do so clearly emerges whether by express words or necessary implication.”
- Nothing could be clearer than that s 190 of the Act abrogates the privilege against self-incrimination. Once abrogated, it is complete. In A v Boulton (2004) 136 FCR 420 Kenny J at 428, with whose reasons Beaumont and Dowsett JJ agreed, cited a passage from a decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee [2001] 1 HKLRD 590,
“Where as in the present case, the words of the statute clearly abrogate the privilege and substitute for it a limited direct use prohibition, the privilege is abrogated in its entirety and the scope of the substituted protections, if any, becomes a matter of statutory construction.”
Section 190 so far as it relates to the privilege against self-incrimination must be read with s 194(2)(a) and (b) which, if the privilege is accepted and an answer is required, bring in the application of s 197.
- The Presiding Officer upheld the claim to privilege from self-incrimination when first made without requiring further submissions. Mr Macgroarty submits that he was in error not to do so but the claim was upheld. The Presiding Officer needed no further persuasion that an answer to the question about co-accused X’s involvement in dangerous drug activity against the background of Witness A’s drug charge might incriminate Witness A. The requirement in s 194(1B) to hear submissions before ruling is for the protection of the witness. The Presiding Officer decided that Witness A had a reasonable excuse based on a claim of privilege against self-incrimination. Having done so the Presiding Officer then moved to s 194(2)(a) and required Witness A to comply with the requirement to answer a question which might tend to incriminate him and reminded Witness A of the protection afforded by s 197. There is no legislative obligation to give reasons for this decision nor an entitlement to appeal that decision to this court. Section 195(1) limits an appeal to a decision of a presiding officer given pursuant to s 194(3)(b). Section 194(3) which requires reasons applies to a reasonable excuse other than one based on a claim of privilege against self-incrimination as a matter of statutory construction.
Discussion – Grounds 2(a)(i)-(iv)
- Witness A claimed a reasonable excuse not to answer particular questions based on the pendency of criminal proceedings against him. Witness A and his counsel took a very broad view of what questions might trench on the supply charge. The Presiding Officer, after a lengthy discussion with Witness A, Mr Macgroarty and Counsel Assisting framed a question directed to this excuse and gave reasons incorporating earlier reasons that s 331 of the Act was a complete answer to the claim of reasonable excuse due to pending proceedings. He required the question to be answered and advised Witness A of his right to appeal to this court.
- In Hammond Gibbs CJ said at 198
“Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.”
Deane J, to similar effect, said at 206
“On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court.”
- The Commonwealth and State legislation under consideration in Hammond required a witness to be sworn or make affirmation and answer any question relevant to the inquiry put to him on pain of penalty if he refused. The privilege against self-incrimination was thus abrogated but no evidence so obtained was admissible in any proceeding against him. Hammond was charged with conspiracy under the Crimes Act 1914 (Cth) and committed for trial in the County Court in Melbourne during the currency of a Royal Commission into various matters including malpractices in the meat industry in respect of which Hammond had been charged. He was summonsed to appear and required to answer questions by the Royal Commissioners. The High Court found that the continuance of Hammond’s examination before the Commissioners would interfere with the due administration of justice even though his answers would not be admissible in evidence against him.
- Muir J in the ex tempore decision of Schultz referred to by the Presiding Officer impliedly accepted that s 331 of the Act permitted the Commission to continue to undertake inquiries notwithstanding that criminal proceedings were on foot. So far as the reasons reveal his Honour was not asked to consider a Hammond argument.
- In Bayeh v Attorney-General (NSW) (1995) 82 A Crim R 270 the court considered whether the prohibition in Hammond survived the enactment of s 38 of the Royal Commission (Police Service) Act 1994 (NSW), a provision similar to s 331. The Explanatory Notes to the Crime and Misconduct Act 2001 state that s 331 was based upon that provision in the NSW legislation and was intended to override the effect of the decision in Hammond. Section 38(1) permitted the Commissioner to carry out his inquiry, to report upon that inquiry and to do “all such acts and things as are necessary or expeditious for those purposes” notwithstanding the existence of any proceedings which may be before a legal tribunal. This is identical to the terms of s 331(1)(c). The Commissioner was enabled (“may”) by the provision to do a number of things to ensure that an accused’s right to a fair trial was not prejudiced – as in s 331(2).
- Bayeh came before Hunt CJ at CL for declaratory relief that the applicant’s right to a fair trial (he had been charged with 13 criminal offences of demanding money with menaces) would be prejudiced by the Commissioner’s order that his evidence be given by him in public before the Commissioner. He sought an order that his evidence be given in private. Although much of the discussion is not relevant to the grounds of appeal here, his Honour’s acceptance that s 38 overrode the effect of Hammond may be noted. At 278 he said
“The express terms of s 38(1) permitting the Commissioner to carry out his inquiry notwithstanding the existence of proceedings before a legal tribunal at the time, coupled with the deliberate use of the permissive word “may” in relation to the steps to be taken to avoid prejudicing those proceedings necessarily imply that the common law right contended for by the plaintiff has been abrogated to the extent indicated. I am satisfied that the Commissioner has a discretion to refuse an application under s 38(2) notwithstanding that, as a result of evidence being given in public, there may be prejudice to the fair trial of a person charged with an indictable offence.”
- Mr Macgroarty placed some emphasis on observations of Pincus J (then a Judge of the Federal Court of Australia) in Re Gordon (1998) 80 ALR 289 considering s 69(12) of the Bankruptcy Act 1966 (Cth) which compelled a bankrupt to answer all questions put to him on public examination and was not excused on the ground of self-incrimination. The bankrupt had at the time of his examination been charged with conspiracy to defraud the Commonwealth. His Honour offered a summary of the propriety of certain questions in an inquiry when there were pending criminal proceedings. Without wishing to dismiss Mr Macgroarty’s submissions too readily it may be observed that his Honour discussed Hamilton v Oades on the strength of the NSW Court of Appeal decision which was subsequently, after his Honour’s decision, reversed by the High Court (1989) 166 CLR 486; and after discussing Hammond his Honour noted at 296 that after the decision in Sorby,
“[i]t is now clear the Parliament may interfere with the privilege against self-incrimination.”
Thus that summary which found favour with Mr Macgroarty has been overtaken by legislative activity.
- As to the quality of the Presiding Officer’s reasons, s 331 permits him to require the questions to be answered notwithstanding the pendency of the drug charges. He may make orders to ensure Witness A’s right to a fair trial by conducting the hearing in closed hearing (which was the case) or give a direction under s 202 concerning the publication of names and evidence. None of those orders were sought but, since the hearing was already being held in private and publication by Witness A was forbidden such an application was at that time unnecessary. There is a complaint but not a ground of appeal that Witness A has learnt subsequently that two investigating police officers were present at the hearing. The Presiding Officer has a discretion to decide who may be present at any hearing and the Commission’s crime function is to investigate major crime, to gather evidence for the prosecution of persons for offences and to liaise with other law enforcement agencies. The Presiding Officer was performing his proper function in permitting them to be present.
- The Explanatory Notes to the Crime and Misconduct Bill accept that the legislation grants coercive powers to the Commission. Those powers are in derogation of fundamental rights developed by the common law to address abuses of such institutions as Star Chamber. The legislature has justified this incursion on the basis of the important function the Commission carries out to reduce the incidence of major crime. The Act is effective to abrogate both the privilege against self-incrimination and the protection afforded an accused person discussed in Hammond which characterised an ex-curial inquiry as contempt of court if it sought to investigate the subject-matter of a pending charge.
- Mr Logan has submitted that leave to appeal insofar as Ground 2(b) is concerned ought to be refused. Since this is the first application with considered submissions on the construction of the Act it is appropriate that leave be granted to argue that ground as well as Ground 2(a).
- The orders are:
- Leave to appeal granted.
- Affirm the Presiding Officer’s decision that Witness A did not have a reasonable excuse for not complying with the requirement that he answer the question.
- Dismiss the appeal.
- The Originating Application, Affidavit of Leigh Francis Rollason, the exhibits tendered on this hearing, the outlines of submissions filed and the transcript of the hearing, be placed in a sealed envelope marked ‘Not to be opened without the leave of the Court or a Judge thereof’ and the file marked ‘File Not To Be Searched’.