CONTEMPT OF COURT
18 The applicant's third ground involves not only a challenge to the question which he objected to answering on 12 February 2009 but also, as I understand it, the contention that the examination of him generally should be restrained by injunction pending the completion of the criminal proceeding which he faces. He says that resort to the coercive process for which Div 2 of Pt II of the ACC Act provides could prejudice his prospect of a fair trial and thus would give rise to a risk of an interference in the administration of justice. He relies upon the principle referred to by Gibbs CJ in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, applied by the Full Court in Commissioner of Taxation v De Vonk (1995) 61 FCR 564, 585-586. Gibbs CJ said (152 CLR at 56):
There is a contempt of court of the kind relevant to the present case only when there is an actual interference with the administration of justice, or "a real risk, as opposed to a remote possibility" that justice will be interfered with: cf. Attorney-General v. Times Newspapers Ltd [1974] AC 273, 299. The essence of this kind of contempt is a "real and definite tendency to prejudice or embarrass pending proceedings": John Fairfax & Sons Pty. Ltd v. McRae (1955) 93 CLR 351, 372.
19 The applicant says that his right to a fair trial would be prejudiced in three, seemingly interdependent, ways. First, he is frank about the way he proposes to defend the criminal charges. He says that he intends to justify what might otherwise appear to be incriminating conduct by admitting that he was then involved in something quite minor by comparison with the serious offences with which he has been charged. To require him now to reveal, and to admit to, that conduct would be incriminating apropos the minor dimension of his admitted criminality. He also says, as I understand the submissions made on his behalf, that he would thereby be compelled to disclose how he intends to defend himself against the charges which have been laid, a compulsion to which, under the criminal justice system itself, he cannot be subjected. Secondly, he says that for him to be required to answer the particular question to which he objected would (because of the nature of the question) involve him naming a person whom he hopes to call as a witness in his defence. Not only is someone in his position under no obligation (normally) to name his witnesses, the very person he intends to call may, he apprehends, get cold feet about the idea of giving evidence once he or she realises that the applicant has disclosed his or her identity to the authorities. Thirdly, the applicant has only very recently received his copy of the prosecution hand-up brief for the committal proceeding. It is said to be voluminous. The applicant says that it would be oppressive to require him to answer the question to which he objected before he had had a realistic opportunity to come to terms with the contents of the brief.
20 Counsel for the respondent submitted that the applicant's ground should be rejected, for four reasons. First, he submitted that, on the facts of the present case, the court should not be satisfied that there is a real risk, as opposed to a remote possibility, that the requirement that the applicant answer the question to which he objected would give rise to an interference with the administration of justice in relation to the criminal proceeding which the applicant faces. Secondly, he submitted that the decision whether to restrain the continuation of the examination of the applicant, or the putting of any particular question, involved a judgment which balanced the public interest in avoiding the risk of interferences with the administration of justice with the public interest in the investigation of serious crime. On the facts of the present case, if there were a risk of the kind mentioned, that risk was outweighed by the second kind of public interest to which I have referred. Thirdly, he submitted that, as a matter of construction, the ACC Act authorised the respondent's requirement that the applicant answer the question to which he objected, and the continuation of the examination of the applicant generally, notwithstanding that either or both would give rise to a risk of an interference with the administration of justice. Fourthly, he submitted that, in the event that his arguments were otherwise unsuccessful, the most the court should do ought to be to restrain the respondent from requiring the applicant to answer the particular question to which he objected. There was, he submitted, no basis upon which the examination of the applicant generally should be restrained. It may be seen that, if I were to answer either the first or the third of these points favourably to the respondent, the applicant's ground itself would be rejected. The second point is by way of an alternative to the first, and assumes also that the third would be unsuccessful. The fourth point is, as it were, in the nature of a final fall back position.
21 Before turning to the respondent's points, I should say something about the legal basis of the applicant's propositions. Each of the first and second ways in which the applicant puts his case in relevant respects is based upon the supposition that, unless the respondent were restrained as sought, the substance of the applicant's evidence in the examination (either with respect to the question concerned or generally) would become known to third parties. On one aspect of the applicant's case, those third parties would be the prosecuting authorities in the criminal proceeding. On another aspect, they (or, perhaps more accurately, he or she) would be the person presumptively to be identified by the answer to the question to which the applicant objected. The realistic likelihood of there being, in effect, a leakage of the evidentiary record of the applicant's examination by the respondent cannot be assessed without a consideration of certain provisions of the ACC Act designed to maintain the confidentiality of such examinations, and of steps taken by the Commission, including by the respondent, to maintain the confidentiality of that record. These are matters which fall for consideration under the first of the four points by reference to which the respondent responds to this aspect of the applicant's case.
22 I should say something also at this stage about the jurisprudential, as distinct from the factual, assumptions which underlie this ground in the applicant's case. Although, for the most part, counsel for the applicant eschewed any reliance upon the privilege against self-incrimination, there were, as I have noted above, aspects of his client's case which seemed to call up that principle, even if, perhaps, in a slightly modified way. Recourse to that principle makes it necessary to refer to s 30 of the ACC Act, subss (1), (2), (4) and (5) of which are as follows:
(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.
(2) A person appearing as a witness at an examination before an examiner shall not:
(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
…
(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a) a person appearing as a witness at an examination before an examiner:
(i) answers a question that he or she is required to answer by the examiner; or
(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(b) in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and
(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(5) The answer, or the document or thing, is not admissible in evidence against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than:
(c) confiscation proceedings; or
(d) a proceeding in respect of:
(i) in the case of an answer - the falsity of the answer; or
(ii) in the case of the production of a document - the falsity of any statement contained in the document.
In the facts of the present case, before giving his evidence at the examination, the applicant claimed that his evidence might tend to incriminate him, under s 30(4)(c) of the ACC Act. That claim having been made, the answer to the question to which the applicant objected would not be admissible against him in a criminal proceeding (other than the limited, and presently uncontroversial, exceptions in pars (c) and (d) of s 30(5) of the ACC Act). As a matter of construction, the provisions of s 30 to which I have referred displace the common law privilege against self-incrimination and, in my view, leave no room for the applicant to rely upon that privilege in support of his present contention that the continuation of the examination, or the requirement to answer a particular question, would give rise to a real risk of an interference with the administration of justice: Hamilton v Oades (1989) 166 CLR 486.
23 A significant component of the applicant's case, in presently relevant respects, is that the general law entitles him to conduct his defence of the criminal charges laid against him without revealing the elements of his defence, or the identity of any witness whom he proposes to call. On this subject, in Hamilton v Oades Mason CJ said (166 CLR at 499):
There are two other matters to be mentioned. The Court of Appeal referred to the respondent's right not to disclose his defences to the pending charges. Except in the sense that a witness enjoys what is known as the right to silence, the respondent has no relevant right, either at common law or by virtue of statute. The privilege against self-incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed.
On the other hand, even apart from the prospect of self-incrimination, the continuation of an administrative inquiry, of an inquisitorial nature, into the rights and wrongs of the very conduct which forms the basis of pending criminal charges, and the compulsion of a person facing those charges to give evidence on oath, may well give rise to a real risk of the kind referred to by Gibbs CJ in Builders Labourers' Federation: see Hammond v Commonwealth of Australia (1982) 152 CLR 188 and Commissioner of Taxation v De Vonk (1995) 61 FCR 564. Whether such a risk arises in the present case, and if so whether the taking of that risk is authorised by the ACC Act, are questions to which I shall presently turn.
24 Before doing so, however, there is one other, potentially important, factual feature of the present case which should be noted. It was not suggested on behalf of the applicant, and it would not be open on the evidence to hold, that the purpose of the respondent's examination of the applicant was to have him disclose his intended defence in the forthcoming criminal proceeding. Indeed, there was no suggestion that, before the applicant took the objection which he did, either the respondent or counsel assisting had any idea that the answer to the question posed by the latter would reveal an element in the applicant's intended defence to the criminal charges. In this proceeding, counsel for the applicant submitted that, once the applicant himself had disclosed that the answer would reveal an element of his defence, thereafter the respondent was on notice of that circumstance and the question which he required to be answered was, somehow, infected thereby. I cannot accept that proposition. The legality of the question, and of the examination generally, cannot depend upon disclosures made by the applicant himself in his own interests. I consider that the correctness or otherwise of the ground upon which the applicant relevantly challenges the line of questioning which the respondent permitted must be determined against a factual setting in which, at most, it is to be assumed (ie accepting what the applicant asserts) that the answer to the question would reveal a fact upon which the applicant proposes to rely in his defence. That he does so propose must, in my view, be treated as wholly incidental to, and unrelated to, the purposes of the respondent or of counsel assisting.
25 The respondent resisted the suggestion that, as a matter of fact, his requirement of the applicant to answer the question posed on 12 February 2009 would give rise to a real risk of an interference with the administration of justice. In the first place, it was pointed out that, the applicant having made the claim for which par (c) of s 30(4) of the ACC Act provides, subs (5) ensured that his answer would not be admissible in evidence against him in any criminal proceedings in which he is accused. The respondent next pointed to a number of directions which he had given under various provisions of the ACC Act, the intent of which was to ensure that the applicant's answer to the question, if given as required, would remain confidential within the narrow circle of persons engaged in the Commission's special investigation. Section 25A(3) of the ACC Act provides that an examination must be held in private, and the examiner may give directions as to the persons who may be present. On 12 February 2009, the respondent gave such directions. He named nine persons who, alone, were authorised to be present during the examination. In a confidential affidavit sworn by him on 19 February 2009, he said that none of those persons was involved in the investigation or prosecution of the applicant in relation to the criminal offences with which he has been charged. The respondent said that he did not intend to authorise anyone who had an involvement in that investigation or prosecution to be present during any examination of the applicant, or to have access to any evidence obtained during any such examination. In an affidavit sworn by counsel assisting the respondent on 20 February 2009, it was also made clear that the Commission has placed tight administrative restrictions upon the range of persons who may have access to the transcript of the examination of the applicant. Those restrictions were placed pursuant to directions given by the respondent.
26 A significant aspect of the respondent's case was a direction which he made under s 25A(9) of the ACC Act. The terms of that subsection are as follows:
An examiner may direct that:
(a) any evidence given before the examiner; or
(b) the contents of any document, or a description of any thing, produced to the examiner; or
(c) any information that might enable a person who has given evidence before the examiner to be identified; or
(d) the fact that any person has given or may be about to give evidence at an examination;
must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
On 18 February 2009, at the request of counsel assisting, the respondent gave the following direction under s 25A(9):
I direct that the evidence given by [the applicant], and the documents or things produced to this Commission, not be published except to the CEO, Examiners and Members of Staff of the ACC, members of the Victoria Police…Taskforce concerned with this Examination, the Federal Court in relation to proceedings initiated in respect of any matter arising from this examination and Counsel engaged for the ACC and the Applicant in the said Federal Court proceedings. I further direct that the evidence given not be made available to the Australian Federal Police and Prosecuting authorities responsible for prosecuting matters arising from AFP Operation [X] before the completion and final determination of criminal charges arising from AFP Operation [X].
It is common ground that the "operation" referred to in the final sentence of this direction is that out of which the charges against the applicant have been laid. The "prosecuting authorities" referred to are those responsible for the prosecution of the applicant.
27 Counsel for the respondent submitted that the very point of s 25A(9) - and particularly of the concluding sentence thereof - is to address the situation where evidence (etc) given in an examination might prejudice the fair trial of a person charged with an offence. He submitted that, such a direction having been given, on 18 February 2009 in the present case, the court should not be astute to suppose that there was a realistic, as distinct from a theoretical, risk that the direction would in some presently unforseen way prove inadequate to achieve the purpose for which it was obviously intended.
28 Counsel for the applicant, however, relied upon subs (12) of 25A, which is in the following terms:
If:
(a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;
the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.
It was submitted that subs (12) provided a means by which evidence given by the applicant in the examination might find its way into a court, including the very court before which his prosecution is to be conducted. Counsel for the respondent rejoined that the point of subs (12) was to allow for the possibility that relief from the constraints of subs (9) might be considered desirable in the interests of justice in proceedings involving the prosecution of a person. The court before which such a prosecution proceeded would have control over the dissemination of the evidence released to it under subs (12), and would be the body best placed to weigh such arguments as the applicant might then have against the release of the evidence in circumstances that might prejudice his prospects of receiving a fair trial. In such a situation, it was submitted on behalf of the respondent, the prospect that the evidence might be used in such a way as would prejudice a fair trial of the applicant was theoretical in the extreme.
29 I accept the submissions made on behalf of the respondent with respect to this point. The provisions of the ACC Act referred to are manifestly calculated to reduce to the minimum the prospect that evidence given in an examination will find its way into the hands of authorities or persons other than those to whom, in accordance with directions given by an examiner, it is limited. On the facts of the present case, I consider that the directions given by the respondent, and the administrative steps taken by the Commission, are such as would eliminate any real, as distinct from theoretical, risk of an interference with the administration of justice, should the applicant answer the question put to him as required. I am particularly influenced by the direction given under s 25A(9) of the ACC Act. Save to refer to subs (12) of s 25A, counsel for the respondent was unable to suggest any means by which that direction would not, as a practical matter, produce its intended effect, namely, of protecting the fair trial of the applicant from being prejudiced by the leakage of details of the applicant's evidence given in the examination. With respect to subs (12), I accept the respondent's submissions that this court ought not lightly anticipate that the court to which evidence might be available under that subsection would allow that evidence to be further disseminated in a way that might prejudice the fair trial of the applicant.
30 The facts of the present case are quite different from those which led to the judgment of the High Court in Hammond v The Commonwealth. In that case, police officers involved in the investigation upon which the forthcoming prosecution was based were permitted to be present during the administrative examination (see 152 CLR at 194). Here, by contrast, not only are those police officers not present (and not permitted to be present), but the respondent has taken the steps contemplated by the ACC Act to make it as certain as may be that those involved in the prosecution of the applicant will not come to learn of the substance of his evidence in the examination.
31 I take the view, therefore, that the continuation of the examination of the applicant by the respondent, including the respondent's requirement that the applicant answer the question to which he objected, would not present a real risk of an interference with the administration of justice and would not, therefore, be in contempt of court. That conclusion makes it unnecessary for me to consider the respondent's related points, namely, whether, as a matter of balance, the public interest in the continuation of the Commission's work in the special investigation outweighs the public interest in avoiding risks of interference with the administration of justice, and whether, as a matter of construction, the provisions of the ACC Act to which I have referred evince a legislative intention to tolerate the existence of risks to the administration of justice, either absolutely or in circumstances where directions have been given.
32 The applicant's point about oppression is, in my view, of no substance. Nothing which the respondent proposes to do - or can do - regarding the applicant will affect one way or the other the opportunity which the applicant will have to prepare for his committal. Although not made clear in so many words, it seems that the gravamen of this point is that the applicant desires to preserve the tactical advantage of not having to answer questions in the examination before he has familiarised himself with the contents of the prosecution brief against him. Such matters, however, are quite separate from those which might present a risk of an interference with the administration of justice. Save for the prospect that the prosecuting authorities might become aware of the evidence given by the applicant in the examination (a matter which I have addressed above), the two proceedings are quite separate. The applicant will not, I find, be oppressed in relation to his defence to the criminal charges by a requirement that he answer questions, including the question to which he objected, in the examination being conducted by the respondent.
33 It follows that the applicant's contempt of court point should be rejected.