Witness G v Scott[2016] QSC 286

SUPREME COURT OF QUEENSLAND

1. The applicant was being examined at a Crime and Corruption Commission investigative hearing in respect of his knowledge of drug trafficking and related offences by two other persons, including questioning about the source of the dangerous drugs trafficked by them and the identity of and involvement of others in their drug trafficking network.  The applicant had himself been charged with trafficking as a result of a transaction involving at least one of those two people.  Counsel assisting the investigation said that it was proposed to examine the applicant, not with the objective of strengthening the case against him, but with the objective of enlisting his knowledge of the involvement of others in drug trafficking and related offences. 
2. When he was affirmed, he was asked whether he was involved in supplying ice to one of the other named persons and refused to answer the question, in part, because it could be used to get other evidence and because there were police in the room involved in the investigation into him and “they can use what I say to go find other evidence and use that …”.
3. He went on to say:

“I have a reasonable excuse for not answering questions with respect to the schedule served on me.  When I was here last time you said you wanted me to tell you who my supplier was, this is asking about my own offending.  I say the police investigating me are here and that I can exercise that no confidence in any criminal trial against me won’t be unfairly prejudice (sic).”

4. A similar statement was contained in a document he produced at page 137 of the annexures to an affidavit filed on behalf of the respondent in the proceedings. 
5. He said a particular detective had been the one who arrested him and that the officer instructing counsel assisting had also been an investigator of his offending.  Counsel assisting said that the officer instructing him had been involved to some extent in the investigation. 
6. The presiding officer, to ensure compliance with the requirement that the reasonable excuse be one referable to a question put by him asked what his knowledge of drug trafficking and related offences by the other two named individuals was, including the source of dangerous drugs trafficked by them and the identity of and involvement of others in their drug trafficking network.  The applicant provided the same reason for refusing to answer that question. 
7. The respondent ruled that the applicant did not have a reasonable excuse, pursuant to section 194 of the Crime and Corruption Act 2001 (Qld) for not complying with the requirement that he made of the applicant to answer the question put to him. 
8. His application argues that the respondent’s finding that he did not have a reasonable excuse not to answer the question put to him was erroneous because the investigating police were present at the hearing and he had no confidence that any trial conducted against him would be conducted with appropriate procedural fairness.  He also claimed to have a reasonable excuse not to answer the question on the basis outlined in decisions of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen [2014] HCA 20; 308 ALR 252. 
9. Mr Copley QC for the respondent characterised the issue that would perhaps arise in this application to appeal the decision of the presiding officer as whether a person charged with but not yet tried for an offence can be required to answer a question where an answer might involve him revealing details of his involvement in the offence for which he is awaiting trial.
10. To consider the merits of the appeal one needs to examine to some extent the structure of the Crime and Corruption Act 2001 (Qld). 
11. Generally, hearings before the Commission are not open to the public and the presiding officer conducting a closed hearing may give a direction about who may be present at it.  The presiding officer may also, under section 180, prohibit the publication of answers given at a hearing or information that might enable the existence or identity of a person who has given evidence to be ascertained. 
12. Section 190 provides that a witness must answer a question unless the person has a reasonable excuse.  The person is not entitled to remain silent or to refuse to answer the question on the ground of privilege other than legal professional privilege. 
13. Section 194 requires the presiding officer to decide whether a refusal to answer questions is justified.  In exercising powers under that section, the presiding officer must decide whether or not there is a reasonable excuse for not complying with the requirement to answer a question.  Section 194(2) then provides that if the presiding officer decides that the person has a reasonable excuse based on self-incrimination privilege for not complying with the requirement, he may require the person to comply with it and section 197 then applies which, in effect, restricts the use of privileged answers by making them not admissible in evidence against the individual in any civil, criminal or administrative proceeding.  That was conceded by Mr Copley to be a direct use immunity which did not extend to derivative evidence that may later be uncovered as a result of the answers given in the hearing. 
14. If, as here, the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement, the presiding officer must give the person reasons for the decision and require the person to answer the question pursuant to section 194(3)(b).  A right of appeal to this court lies from that decision. 
15. Section 331(4) also provides that the Commission may, for an investigation or hearing, require a person or witness to answer a question that is relevant to a proceeding brought against the person or witness for a criminal offence.  An example given for section 331(4)(b) is that the Commission may require a person to attend a Commission hearing to answer a question about a matter relating to a criminal offence for which the person has been charged. 
16. The submissions for the respondent by Mr Copley QC were that what might constitute a reasonable excuse is to be determined having regard to the statutory context in which the expression in section 190 of the Act appears.  That context included the Act’s purposes, including to combat and reduce the incidence of major crime.  It was sought to be achieved by conferring on the Commission investigative powers not ordinarily available to police to effectively investigate major crime.  Its prime function was to investigate major crime referred to it, including pursuant to a general referral of major crime which is only made if the referring entity is satisfied that it is in the public interest to refer the major crime. He also pointed out that the Commission must act independently, impartially and fairly at all times and the applicant had no entitlement to refuse to answer on the ground of privilege against self-incrimination and that investigations and hearings can commence and continue notwithstanding that they might concern matters currently the subject of criminal proceedings in courts; see section 331.  If the person is subject to an investigation or hearing about an indictable offence currently pending, then the Commission must ensure that the person’s right to a fair trial is not prejudiced by only conducting closed hearings, giving directions under section 202 and making orders under section 180(3) and section 331(2). 
17. Here the hearing was closed and orders were made under section 180(3) and on the day after the hearing, orders were made under section 202 and new orders were made under section 180(3).  The effect of them is that no answers given by the applicant, his identity and any record of the hearing can be published to any police officer who will or might be an arresting officer in respect of the applicant in relation to any charge arising from the investigation.  Nor can any answers given by the applicant, his identity as a witness or any record of the hearing, be included in any brief of evidence against him and none of the material can be published to any officer of a prosecuting agency with carriage of or involvement in the prosecution of the applicant for any charge, whether arising from the current or any other investigation. 
18. Mr Copley also submitted that statutory provisions conferring an exemption on the grounds of reasonable excuse are not to be construed narrowly, relying on Valletta v NCA (1999) 164 ALR 45, 54 and were not necessarily restricted to physical or practical difficulties in complying, but included any legal right to resist. 
19. He argued that whether an excuse was reasonable was a matter for objective determination, involving a balancing of the public interest in discovering the extent of major crime and the need to ensure that the applicant’s right to a fair trial was not prejudiced; see Crime and Misconduct Commission v WSX and EDC [2013] QCA 152 at [37] and [41]. 
20. He submitted that, having regard to the statutory context and to the balancing exercise, I could conclude that there was no reasonable excuse for the applicant refusing to answer the question put.  Orders adequate to ensure that his trial was not prejudiced had been made and were continued and his subjective lack of confidence that the police would obey the orders made such as that there be no publication to a prosecutor, where disobedience constituted an offence, was not objectively reasonable. 
21. He went on to submit that section 331 of the Act had effected an  alteration made by express words to the accusatorial process and referred to X7 v Australian Crime Commission (2013) 248 CLR 92 at [91], [118]-[119], [124]-[125], and [157]-[158]. 
22. He submitted, therefore, that the applicant’s fears about the prospect of derivative use being made of his answers were guarded against not just by the orders made but also by the general law and that, should it occur that derivative use was ever sought to be made of any answer, then Chief Justice French and Justice Crennan, the minority judges in X7, said at paragraph 54 that absent a factor such as “the independent sourcing of evidence it is not possible to reconcile a fair trial with reliance on evidence against a person at trial which derives from compulsorily obtained material …”.  Their Honours also observed at paragraph 58 that “a trial judge has a discretion in relation to the admissibility of such evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process”,  a discretion recognised in Queensland in section 130 of the Evidence Act 1977. 
23. Mr Copley, in conceding that section 197 of the Act only provided a direct use immunity, nonetheless argued that the prospect of a derivative use being made of the answers provided was not a reasonable excuse for not answering given the specific removal of the privilege against self-incrimination effected by section 190(2).  In response to a submission by Mr Fenton for the applicant that one needed to give content to the idea of a reasonable excuse in section 190(4), he submitted that, for example, such a reasonable excuse may arise from the impossibility of providing the relevant information or answer or, perhaps, if the person feared harm, either to himself or to someone else, outside the context examined in section 190(4) where the hearing related to a criminal organisation or a participant in a criminal organisation. 
24. Mr Fenton’s submissions relied upon the central position of the privilege against self-incrimination in our criminal justice system as one element of the broader right to silence as the rationale for his argument that the exception of reasonable excuse permitted the applicant to refuse questions that may lead indirectly to incrimination by evidence derived from his answers. 
25. He argued that if parliament had intended to radically alter the nature of a criminal trial by allowing derivative evidence from a secret hearing when an accused was required to say all that he knew, it would have said so plainly and it has not. 
26. It seems to me, however, that the orders made by the presiding officer limiting the publication of answers given by the witness, by excepting any police officer who will or may be an arresting officer in respect of the witness in relation to any charge arising from the investigation, and excluding the referred information from being  published to any officer of any prosecuting agency with carriage of or involvement in any prosecution of the witness for any charge, whether arising from the investigation or any other investigation, appropriately limit the use to which the information can be put in an attempt, obviously, to avoid the problem in Lee v The Queen (2014) 253 CLR 455. 
27. The clarity of the provisions in section 190(2) and section 331(4)(b) of the Act, removing the right to silence and the privilege against self-incrimination, even with reference to proceedings already brought against the applicant for a criminal offence, leave no room, in my view, for there to remain an excuse to refuse to answer the questions posed to him. 
28. The protections provided by the orders made appropriately limit the use to which the information can be put in respect of the current proceedings against him with the consequence that it should not be said that he had a reasonable excuse to answer the relevant question. 
29. The consequence is that the application should be dismissed.  I direct, pursuant to section 200A of the Crime and Corruption Act 2001 that no record of proceedings is to be available for access by any person, unless the Court has, on application, by a person, given approval for the access.  I further direct that the affidavit, application and amended application, read in the proceedings and the submissions, be sealed in an envelope marked, not to be opened unless by order of the Court.