Court of Appeal (Muir and Gotterson JJA and Mullins J)
28 November 2014
This is an interesting case which addressed the capacity of the legislature to abrogate, through statute, fundamental rights. Specifically, the Court addressed the question of whether ss 185 and 190 of the Crime and Misconduct Act 2001 (the “Act”) abrogate an individual’s right to silence and its corollary, the privilege against self-incrimination.
This matter came before the Court following an order of the Supreme Court dismissing the appellants’ application for a statutory order of review of the decision of the respondent, as delegate of the Chairperson of the Crime and Misconduct Commission (“CMC”), to issue an attendance notice upon them. The appellants, Hamden and Younan, were suspects in a murder investigation referred to the CMC. An investigative hearing into the murder was authorised by the CMC and the appellants were issued with attendance notices, which required them to attend the hearing and answer, under oath, any questions put to them. Appearing before the Supreme Court, the appellants argued that the decision to issue these notices was not authorised by the enactment and involved an error of law. The judge at first instance dismissed this application.
The principle issue before the Court was whether, as a matter of construction, the CMA abrogated the appellants’ right to silence. . This right, accepted as being “a fundamental freedom or principle”, and thereby attracting “the principle of legality” cannot be abrogated except where the legislature “in the provisions of the Act, ‘made its intention in that regard unambiguously clear’” through the use of “clear words” or by “necessary implication.” –, see further –. The Court noted, however, that this principle should not be extended beyond its rationale – “it exists to protect [fundamental freedoms] from inadvertent … alteration” not to shield them against deliberate acts of the legislature. –.
Turning then to the specific provisions before the Court, under the Act the CMC has the power to require an individual to attend a CMC hearing to give evidence – failure to do so without a “reasonable excuse” being a criminal offence. Crime and Misconduct Act 2001, s 82. It is not a reasonable excuse to claim the privilege against self-incrimination, though under s 197 if an individual claims self-incrimination privilege and would, but for the terms of the Act, not be required to answer the question, the answer is not admissible against them in any civil, criminal or administrative proceeding. The appellants proceeded on the basis that the provisions of the Act do not “abrogate self-incrimination privilege in the case of a person suspected of a major crime under investigation by the CMC because the application of the relevant provisions of the Act to claims of privilege by a suspect [are] not expressly stated”. . The Court rejected this contention, holding that there was a sufficiently clear and identifiable legislative intention to abrogate the privilege against self-incrimination. . This intention, the Court considered, was evidenced by the fact that given the stated purposes of the Act those persons suspected of a major crime would often be amongst those required to attend a CMC hearing, and that the provisions of the Act explicitly abrogated the privilege. –.
Given this conclusion, the Court dismissed the appeal, however this decision is now the subject of a special leave application.