NS v Scott

This case arose out of a CCC investigative hearing, at which a witness claimed they had a “reasonable excuse” for refusing to answer questions on the basis that derivative use could be made of their answers, and because a police officer involved in investigating their alleged offending was present at the hearing. Holmes CJ (Philippides JA and Flanagan J agreeing) held that a “reasonable excuse” – in the context of the Crime and Corruption Act 2001 – did not extend to permitting a refusal to answer questions in these circumstances.

Holmes CJ, Philippides JA and Flanagan J

13 October 2017

Background

The appellant was required to give evidence at a hearing conducted by the Crime and Corruption Commission (“CCC”). Pursuant to s 190 of the Crime and Corruption Act 2001 (“the Act”), a witness must answer a question asked unless they have a “reasonable excuse”. [1]. At the hearing, the appellant said that his reasonable excuse for not answering the questions put to him was that he was being questioned about his own offending, and that a police officer who was investigating him was present at the hearing. The appellant was concerned that, although the investigating police may not be able to use the evidence he gave against him (direct use), they could use it to obtain other (derivative) evidence. [10]. The presiding officer ruled that he did not have a reasonable excuse. His application for leave to appeal that decision to the Supreme Court was refused. He appealed against that refusal. [1].

Arguments on appeal

The appellant argued that the concept of “reasonable excuse” should be regarded as partially replacing the abrogation of the privilege against self-incrimination in CCC hearings, and as enabling a witness to refuse to answer a question where it would lead to the gathering of evidence against him or her. [17].

The respondent argued that the meaning of “reasonable excuse” was to be determined in its statutory context, which included that the Act abolished the right to silence and the privilege against self-incrimination in CCC hearings, and made it clear that hearings could be conducted notwithstanding the existence of concurrent criminal proceedings about the same matters. The purposes of the Act, such as combating major crime, meant that the appellant’s argument as to the content of “reasonable excuse” could not be correct. [20].

Consideration

Holmes CJ considered that the Act “plainly is designed to effect a change to the accusatorial process of criminal justice” by permitting an accused person to be questioned about the subject matter of his or her charge, notwithstanding any prejudice to their defence which may result. [33]. The Act’s compulsory questioning powers are conferred in the context of investigating major crime, and the powers are a tool for that purpose. Although there may be circumstances in which a person who fears derivative use of his answers may have a reasonable excuse for failing to answer, there is no general rule that a concern about derivative use will constitute a reasonable excuse. [36].

The Chief Justice then considered whether the facts of this particular case, in which an officer involved in investigating the appellant’s alleged offending was present at the hearing, could amount to a reasonable excuse for the witness refusing to answer. Her Honour noted that by virtue of the presiding officer’s orders, the police officer present could not communicate the appellant’s answers to any prosecuting agency. Further, the mere fact of that particular officer’s presence was “of no practical consequence” because further investigation could be undertaken by other officers in any event, who had no previous involvement. [38]. Finally, her Honour noted that “the use of derivative evidence does not necessarily prejudice a fair trial. It will depend on the nature of the evidence, and whether it is available from other sources” (citing X7 v Australian Crime Commission (2013) 248 CLR 92, per French CJ and Crennan J). If there was a question of unfairness about adducing derivative evidence at trial, it would be open to the appellant to apply for its exclusion under s 130 of the Evidence Act 1977. [39].

Philippides JA and Flanagan J agreed with Holmes CJ’s reasons. Accordingly, the appeal was dismissed with costs.

W Isdale