does the Act abrogate the privilege against self-incrimination?
71 The privilege against self-incrimination is said to have had its origins in England in the seventeenth century as a reaction to the "odious procedure" formerly adopted by the Court of Star Chamber and the Court of High Commission: Sorby at 317 per Brennan J. In a criminal trial in these courts, accused persons were obliged to take an oath that compelled them to swear, at the outset of their investigatory examination, to answer any questions that the Court might subsequently put.
72 It has been noted that the ex officio oath so administered was a powerful tool in the hands of the Court. See generally Justice G L Davies, "The Prohibition Against Adverse Inferences from Silence: A Rule without Reason?" (2000) 74 ALJ 26 at 31. The examination of the accused upon oath was the central feature of these proceedings. Holdsworth notes that torture was freely used in them to extort confessions or the disclosure of further information.
73 In a helpful discussion paper, The Abrogation of the Privilege Against Self-Incrimination, dated August 2003, the Queensland Law Reform Commission observes at 7 that the traditional theory holds that it was after the Court of Star Chamber and the Court of High Commission were abolished in 1641, and the administration of the ex officio oath was subsequently forbidden, that the privilege against self-incrimination first emerged. By the second half of the seventeenth century, the privilege was said to be well established at common law.
74 In Azzopardi v R (2001) 205 CLR 50 at 91, McHugh J observed that the privilege was developed in part "to ensure that European inquisitorial procedures would have no place in the common law adversary system of criminal justice".
75 The Queensland Law Reform Commission observes that recent research has raised doubts regarding the accuracy of these traditional views. It has been suggested that the privilege derives directly from Roman and ecclesiastical law, and long predates the Court of Star Chamber and the Court of High Commission. It is also said that the principle nemo tenetur se ipsum accusare, though recognised in seventeenth century England, had a much more limited application than the modern privilege against self-incrimination. Finally, it is said that criminal trials in the seventeenth century were not conducted on the basis that the privilege existed, but rather on the basis that the accused had to respond in person to the evidence led by the prosecution.
76 In Pyneboard, the High Court said that it was not easy to assert confidently that the privilege served one particular policy or purpose. Its underlying rationale had changed in response to political and social conditions. According to the traditional view of the history of the privilege, it was originally intended as a curb on state powers. Australian courts have recently focused on the privilege as part of the common law of human rights based on the protection of personal freedom and human dignity. In the end, it is based on a deep-seated belief that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove it for them.
77 The privilege is a fundamental common law right. It protects a person from being compelled to answer questions, or produce documents, or things, if to do so might tend to incriminate that person. It protects the person not only from incriminating himself directly under a compulsory process, but also from making a disclosure that might lead to incrimination, or to the discovery of real evidence of an incriminating character: Sorby at 310 per Mason, Wilson and Dawson JJ.
78 It is also a long-established principle that the privilege against self-incrimination is not protected by the Constitution. Like other rights and privileges of equal importance, it may be legislatively abrogated: Sorby at 298 per Gibbs CJ, and at 309 per Mason, Wilson and Dawson JJ; Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ, and at 351 per Brennan J; and Hammond at 200 per Murphy J.
79 Even where the privilege is not expressly abrogated, the Court may find that it has been abrogated by necessary implication. An intention to abrogate the privilege may be more readily implied in matters where an obligation is imposed in general terms to assist an administrative agency to secure information about an offence: Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ.
80 The issue to be determined in the present case is whether the Parliament has, by enacting s 30 of the Act, abrogated the privilege against self-incrimination by necessary implication.
81 In Mansfield v Australian Crime Commission [2003] FCA 1059, which was decided after argument in this case had concluded, Carr J held that the Act abrogated the privilege. In that case, the applicant had been charged with defrauding the Commonwealth and with money laundering. Initially, he pleaded guilty to those charges. However, he subsequently indicated that he wished to resile from those pleas. The District Court of Western Australia had adjourned consideration of whether he should permitted to do so when, before that question could be determined, the ACC served a summons upon the applicant, requiring him to attend an examination. The applicant appeared before an examiner but submitted that he could not be compelled to answer questions in connection with the charges that were still pending. The examiner rejected that submission, and the applicant applied to the Federal Court, pursuant to s 57 of the Act, for review of that decision.
82 Carr J observed that s 30(2)(b) did not expressly abrogate the privilege. However, his Honour held that the necessary implication of a legislative intent to exclude the privilege could be found when that subsection was read in combination with ss 30(4) and (5). He said at [49]:
"In my view, the obvious purpose of subsections (4) and (5) is to protect an examinee from the consequences of abrogation of the privilege against self-incrimination. I can think of no other purpose for these provisions. As Mason Wilson and Dawson JJ noted in Sorby at 310-311, when a legislature abrogates that privilege, it often gives compensatory protection to the witness. Not only do I think that abrogation of that privilege is to be implied from these three subsections, but I think that it is necessarily to be so implied. There is nothing else in the statutory context which points in any other direction and in particular no provision removing the obligation to answer on the basis of a reasonable excuse, as was the case in relation to the State Act in Sorby."
83 Normally, a judge of this Court will follow the decision of another judge of this Court at first instance unless persuaded that the decision is incorrect. I am not so persuaded. Indeed, I agree entirely with the reasoning of Carr J.
84 The starting point seems to me to be the statement of principle contained in the joint judgment of Mason ACJ, Wilson and Dawson JJ in Pyneboard at 341 set out at [24] above.
85 Section 30(2)(b) imposes an "obligation to answer, provide information or produce documents" that is expressed in entirely "general terms". Notably, s 30(6), which makes it an offence to contravene s 30(2), does not provide for a defence of "reasonable excuse" as did s 6DD of the Royal Commissions Act, considered in Sorby.
86 It is difficult, in these circumstances, to place too much reliance upon the nuances of the reasoning in Sorby. Rather, more assistance is to be derived from statements of general principle in cases such as Pyneboard, as well as earlier cases such as Mortimer v Brown (1970) 122 CLR 493, and Commissioners of Customs and Excise v Harz [1967] 1 AC 760 at 816.
87 Whether a statute in fact abrogates the privilege is a question of construction. Because of the importance of the privilege as a fundamental common law right, it requires clear language, which leads unmistakably to the conclusion that the privilege has been abrogated before a court will so hold as a matter of necessary implication.
88 The relevant principles are set out clearly in Daniels. That case concerned the operation of s 155(1) of the Trade Practices Act 1974 (Cth). The ACCC served notices on a firm of solicitors, pursuant to that section, which required the production of documents held by them as a result of their having acted as solicitors for the appellant. The solicitors and the appellant claimed that certain documents were the subject of legal professional privilege and that the section did not authorise the ACCC to require production of documents to which that privilege attached.
89 The High Court held that legal professional privilege is a right that will not be taken to have been abolished by statute except by express language, or clear and unmistakable implication. Section 155 did not refer in terms to legal professional privilege although s 155(7) expressly abrogated the privilege against self-incrimination. In those circumstances, it was hardly surprising that the Court rejected the contention that legal professional privilege had also been abrogated.
90 As noted earlier, the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, expressed some doubts about the approach taken by Mason ACJ, Wilson and Dawson JJ in Pyneboard. That case too had concerned the operation of s 155 and, as already indicated, s 155(7) expressly provided that the privilege against self-incrimination could not be invoked in answer to a notice, though a use immunity was provided as partial compensation for its abrogation. In those circumstances, the more general approach taken to the issue of construction in Pyneboard seemed to their Honours in Daniels to be otiose.
91 At the same time, Daniels concerned legal professional privilege, and not the privilege against self-incrimination. It also involved legislation in relation to which the maxim expressio unius was particularly applicable. The absence of any reference to legal professional privilege in s 155(1) contrasted starkly with the specific reference to the privilege against self-incrimination in s 155(7). Indeed, the contrast was even greater given that s 155(7A) dealt specifically with, and expressly preserved, certain forms of public interest immunity.
92 The historical background to the Act, and the extrinsic material to which I was taken, seem to me to reinforce the respondents' contention, and that of the intervener, that the privilege has been abrogated, at least by necessary implication.
93 The National Crime Authority Act, before it was amended in October 2001, contained a series of provisions that permitted a witness summonsed to give evidence at a hearing to refuse to answer questions put to that witness in certain circumstances. Section 30(2)(b) of that Act created a general obligation to answer questions and s 30(2)(c) imposed an obligation to produce documents or things in accordance with a summons. However, these obligations were qualified by s 30(4) which provided that it was a "reasonable excuse" to refuse to answer, or produce a document, that the answer to the question or the production of the document might tend to incriminate him or her.
94 It is important to note that, prior to October 2001, s 30(5) provided it was not a reasonable excuse, for the purposes of s 30(2), that the answer to the question, or the production of the document, might tend to prove the witness's guilt of an offence if the Director of Public Prosecutions had given to the witness an undertaking in writing that conferred upon him or her a use, or derivative use, immunity. Section 30(6) provided an analogous protection from use, and derivative use, in relation to State offences.
95 One of the aims of the October 2001 amendments was to remove the "derivative-use immunity" that had been conferred by the National Crime Authority Act in its original form. The Revised Explanatory Memorandum made it clear that the Bill would amend that Act to remove the defence of "reasonable excuse", replace the "use derivative-use indemnity" with "use-indemnity", and increase penalties for non-compliance.
96 Item 12 of the Revised Explanatory Memorandum set out the background to the proposed changes. It noted that under the existing provisions, if a witness appearing at a hearing before the Authority claimed the privilege against self-incrimination, the Authority had to determine the validity of that claim. If the claim was valid, the witness had a reasonable excuse for not answering the question or producing the document or thing. However, an undertaking, in appropriate form from the Director of Public Prosecutions or the State Attorney-General or an otherwise authorised person could negate that reasonable excuse.
97 The Revised Explanatory Memorandum then set out the proposed scheme, as outlined by Mr Faris in [31] above. The principal differences between the two schemes were detailed. They included in particular the abolition of any defence of reasonable excuse, and the absence of any role for an undertaking from the Director of Public Prosecutions in relation to the future use of the evidence, with the consequence that derivative evidence could, in future, be used. The Memorandum explained:
"… The Authority is unique in nature and has a critical role in the fight against serious and organised crime. This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from the evidence given to the Authority, outweigh the merits of affording full protection to self-incriminatory material."
98 The second reading speech, delivered in the Senate on 7 December 2000 by Senator Campbell, explained the rationale for the proposed changes. He said that the removal of the defence of "reasonable excuse" would mean that a witness could no longer delay the Authority's hearing process by challenging, in the Federal Court, its decision that the witness did not have a reasonable excuse for, amongst other things, failing to answer a question. Senator Ellison also spoke of witnesses who had frustrated the investigation process by asserting that self-incrimination meant they could not answer questions.
99 The Australian Crime Commission Establishment Bill 2002: Revised Explanatory Memorandum made it clear that the ACC was intended to combine the functions of the National Crime Authority, the Australian Bureau Crime Intelligence, and the Office of Strategic Crime Assessments. The provisions dealing with witnesses, and their obligations to answer questions, and produce documents, required by examiners were, in substance, the same as the provisions introduced by the Amendment Act. Accordingly, it is permissible to have regard to the extrinsic materials surrounding the introduction of that Act when construing ss 30(2)(b), 30(4) and 30(5) of the Act in the present case.
100 It follows from all that I have said that, in my view, the Act abrogates the privilege against self-incrimination. It does so by necessary implication. It provides some compensation to witnesses who are compelled to incriminate themselves. However, that compensation was deliberately limited to use immunity, and did not extend to derivative use immunity. Contrary to Mr Faris's submission, it does not follow that the privilege has not been abrogated, or that it has been "partially" abrogated at most. Rather, the privilege has been entirely abrogated, though there has been "partial" compensation by way of use immunity.
101 I am fortified in arriving at this conclusion by the decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 ("Lee Ming Tee"), in which Sir Anthony Mason sat as a non-permanent judge. In that case, the respondents were jointly charged with conspiracy and publishing a false statement of account contrary to s 21(1) of the Theft Ordinance, Cap 120. The charges related to the issue and placement of a substantial number of shares in several companies. Each of the respondents held positions of importance in the Boards of those companies.
102 The prosecution alleged that the respondents misled the public into believing that the issue and placement of shares had raised the necessary corporate funds. The issuing companies had only received a small fraction of the proceeds of the share issues. The respondents' companies had, through sham banking arrangements, acquired the shares without payment.
103 Several years before criminal proceedings were instituted, the Financial Secretary appointed an Inspector to investigate and report upon the affairs of the respondents' companies, including the particular transactions previously referred to. The Inspector was appointed under s 143(1)(c) o f the Companies Ordinance, Cap 32 ("the Ordinance"). It was recognised from the outset that criminal proceedings were a likely outcome and the decision was taken to keep the police informed.
104 By the end of August 1993, the Inspector's final report was ready and copies were submitted to the Financial Secretary, the police and the Prosecutions Division of the Attorney-General's Chambers.
105 On 21 July 2000, Pang J ordered that the criminal proceedings be permanently stayed, on two grounds.
106 First, his Honour held that the Inspector had supplied to the police and prosecuting authorities information and documents, acquired in the course of the inspection, for use in aid of the prosecution. This amounted to an abuse of the Inspector's statutory powers, and a violation of the respondents' rights. He held that pursuing the prosecution in such circumstances amounted to an abuse of court process which would not be permitted.
107 Second, Pang J concluded that by:
· publishing the Inspector's report when criminal proceedings were intended;
· giving such publication prominence at a press conference; and
· orchestrating such publicity to coincide with a series of high-profile police raids on the respondents' companies' premises,
the Government had created such severe prejudice that it had become impossible for the respondents to receive a fair trial.
108 The Secretary for Justice appealed against Pang J's order by leave of the Appeal Committee. Pang J certified certain questions of law as being of great and general importance under the relevant section of the Hong Kong Court of Final Appeal Ordinance, Cap 484. At the hearing of the leave application, the certified questions were reformulated. Importantly for present purposes, question 2 asked:
"In the context of materials obtained by the Inspector what within the criminal process is the scope of the privilege against self-incrimination? In particular, does it encompass derivative use immunity?"
109 The Hong Kong Court of Final Appeal restated the position at common law regarding the privilege against self-incrimination. The Court noted that the privilege is "deep-rooted…, having been established in England since at least the sixteenth century: Lam Chi Ming v The Queen [1991] 2 AC 212." The Court then stated that it was equally beyond doubt that the privilege could be overridden by statute: R v Scott (1856) Dears & B 47.
110 The Court then turned to the relevant provision, s 145(3A) of the Ordinance, which stated:
"(3A) A person is not excused from answering a question put to him under this section by an inspector on the ground that the answer might tend to incriminate him but, where such person claims, before answering the question, that the answer might tend to incriminate him, neither the question nor the answer shall be admissible in evidence against him in criminal proceedings other than proceedings [which are not material]."
111 It was clear (and it was not disputed by the parties on appeal) that s 145(3A) abrogated the privilege against self-incrimination. This took effect in two ways. First, the section abrogated the privilege by providing that a person was not excused from answering a question put to him by an inspector on the ground that the answer might tend to incriminate him. Second, if the person claimed the privilege before answering, then although an answer must nevertheless be given, s 145(3A) replaced the privilege with a statutory prohibition on how the answer could be used, known as a "direct use prohibition", otherwise referred to as a "use immunity" or "direct use immunity".
112 The Court at 157 identified the issue on appeal as being:
"…neither about the availability of the abrogated privilege against self-incrimination nor about enforcement of the direct use prohibition. It is about the permissibility of "derivative use" by the prosecution of the compelled testimony and information. Was the Financial Secretary entitled to hand over the compulsorily obtained materials to the prosecuting authorities and were the latter entitled to use them to help acquire evidence for the prosecution from other sources?"
113 In looking at the purposes of s 145(3A), the Court said that the privilege was abrogated and replaced with a direct use prohibition, albeit framed in limited terms. It only applied to the questions asked and the answers given. The prohibited use was "the use of such questions and answers as evidence in criminal proceedings against the person giving the answers". It said nothing about prohibiting any other use. Therefore, on its face, s 145(3A) abrogated the privilege and then forbade only direct use, inferentially permitting derivative use of the questions and answers obtained in the course of an inspection.
114 The Court relied upon a statement by Lord Mustill in Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 40 in which his Lordship discussed similarly structured provisions, that is, provisions which override the privilege and leave in its place a statutory use prohibition. His Lordship said:
"These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. The statute occasionally provides in so many terms that the information may be used in evidence; sometimes that it may not be used for certain purposes, inferentially permitting its use for others; or it may be expressly prescribed that the evidence is not to be admitted; or again, the statute may be silent." (emphasis added)
115 The Court went on to say that the other relevant provisions of the Ordinance also favoured a construction opposed to the existence of any derivative use immunity.
116 Having come to these conclusions, the Court considered whether there was nevertheless a free-standing derivative use immunity at common law, capable of surviving a statutory abrogation of the privilege against self-incrimination.
117 In the proceeding at first instance, Pang J had been "prepared to recognize that the privilege of derivative use immunity should be enjoyed by a person within [Hong Kong] and this right is to be treated as an extension of [the] right to use immunity." His Honour appeared to treat derivative use immunity as an independent common law right, capable of surviving a statutory abrogation of the privilege against self-incrimination. Accordingly, though s 145(3A) had abrogated the privilege and replaced it only with a direct use immunity, derivative use immunity continued to exist "as an extension of" the respondents' "right to use immunity".
118 The Court of Final Appeal disagreed with that conclusion, saying that use immunity did not arise as a matter of common law, but by statute, and its scope was a matter of statutory construction. Any "extension" therefore must be justified as a matter of construction. Far from supporting the existence of any wider derivative use immunity, the relevant provisions of the Ordinance strongly indicated that the Financial Secretary was at liberty to pass on compelled materials to the prosecuting authorities for their use in any contemplated prosecution. The Court again referred to Lord Mustill's dictum in support of this conclusion, noting his Lordship's suggestion that a statute which expressly provides that compelled evidence may not be used for certain purposes, inferentially permits its use for other, hence, derivative, purposes.
119 The Court referred to the "strong persuasive authority" of the decision of the High Court of Australia in Hamilton v Oades (1989) 166 CLR 486 against the survival of any derivative use immunity in cases where the privilege has been abrogated by statute. In that case, when construing s 541(12) of the Companies (New South Wales) Code, a provision similar to s 145(3A), Mason CJ observed that the section was significant in three respects. First, it expressly abrogated the privilege. Second, it provided for a use immunity. Third, it explicitly empowered the court to give directions concerning the conduct of the examination. His Honour noted that the section gave no protection to the witness against the use in criminal proceedings of derivative evidence. He said at 496:
"…by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed." (emphasis added)
120 The Court observed that Dawson J's judgment at 508 was to the same effect.
121 The respondents in Lee Ming Tee relied upon Sorby as authority for the existence of a common law derivative use immunity that survived statutory abrogation of the privilege. The Court disagreed, noting that as distinct from the case before them, the High Court of Australia had been asked to determine whether s 6DD of the Royal Commissions Act had impliedly abrogated the privilege. The Court of Final Appeal stated at 166:
"… Put at its highest, as expressed by Gibbs CJ, what the judges were pointing out was that an unabrogated privilege against self-incrimination, that is, a privilege to decline to answer questions, necessarily carried with it not only protection against direct but also derivative use of any self-incriminating answer. Accordingly, since the protection conferred by the direct use restriction imposed by s 6DD was not co-extensive with the protection conferred by an unabrogated privilege, the contents of s 6DD did not, without more, necessarily imply a legislative intention to abrogate the privilege. …
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. Sorby v The Commonwealth (1983) 152 CLR 281is not authority for saying that a clear abrogation of the privilege coupled with an express direct use prohibition leaves intact a derivative use immunity at common law. Hamilton v Oades and Corporate Affairs Commission of New South Wales (1989) 166 CLR 486is authority to the contrary."
122 The Court then noted that support in principle for the absence of any common law derivative use immunity could also be found in cases concerning the admissibility of evidence derived from inadmissible confessions. See, for example, Lam Chi Ming v The Queen at 218, R v Sang [1980] AC 402, and R v Hertfordshire County Council; Ex parte Green Environment Industries Ltd [2000] 2 AC 412.
123 The Court next considered the civil cases upon which the respondents relied in support of their argument in favour of a common law derivative use immunity, particularly the speech of Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380. The Court held that when properly read in context, the relevant passage from his Lordship's speech did "not assist, but militates against the respondents' argument."
124 The Court concluded its analysis of this point by stating at 170:
"…a "derivative use immunity" does not exist as a free-standing common law concept or doctrine. Where the privilege against self-incrimination is overridden, in the absence of any binding restriction on use (whether statutory, by judicial order, by undertaking or otherwise), self-incriminating answers thereby obtained are subject to unrestricted use. Where the use prohibition or restriction conferred in place of an abrogated privilege is limited, other use is inferentially permitted."
125 The Court went on to deal with a subsidiary argument that the use of derivative evidence was unfair, and inconsistent with the Hong Kong Bill of Rights. It rejected that argument, concluding that the use of derivative evidence would not prevent the accused from receiving a fair trial. It therefore unanimously allowed the appeal, set aside Pang J's order for a permanent stay, and ordered that the matter be remitted for trial.
126 I adopt so much of the reasoning of the Court of Final Appeal as is relevant to the issue before me.